The Central Aporia of The Philosophy of Law

Erasmus Exchange:
OBU and Dimitrie Cantemir

Christian Universities
A Central Aporia of the

Philosophy of Law
Dr Stephen Boulter
Reader in Philosophy
Department of History, Philosophy and Culture
April 2019
Introduction
• Reminders regarding the Rule of Law

• Alternatives to the Rule of Law
• A Central Aporia
• Standard Responses
• Key Questions that Emerge from the Aporia
The Basic Features of the
Rule of Law (reminders)
(1) The law applies equally to all persons regardless of social,

economic, political status, etc. No one is above the law
(2) Officials are accountable for their actions
(3) The law must be accessible to all, i.e. promulgated and
expressed in language that is intelligible to all
(4) Trials must be ‘fair’, i.e., the accused must know the
charges and all the evidence that will be used in court, the
judge must be impartial, both accuser and defendant must
be given equal time to speak, the jury must be selected at
random
(5) No punishment without law, i.e., one cannot be punished
retrospectively.
Alternatives to the Rule of
Law
Divine Right of Kings: The King’s word is law

Rule of Man: The Dictator’s word is law
Ochlocracy: Mob rule
Hobbes’ State of Nature: War of all against all
Charismatic justice: Trial by Ordeal
Kadi-Justice: Judges make ad hoc decisions not guided by
general principles but by whatever strikes them as
salient in the situation
Anarchy: No rulers or laws, but allegedly no conflict
either
Lex cryptographica: Rule of Code
A Central Aporia
(1) The law determines a case. Judges merely apply the law
once the facts of a case have been determined
(2) The law must be minimally just, or is no law at all
(3) Morality/justice is context sensitive (non-codifiable)
(4) The law must be generalised, depersonalised,
decontextualised, ‘blind’ (equality before the law)
(5) From (3) and (4): The application of the letter of the law is
often morally suboptimal
(6) To deal with (5) the notion of ‘equity’ was introduced to
allow judges to rule according to ‘the spirit of the law’
Problem: (6) describes the rule of judges, not the rule of law.
Responses: Plato
Abandon the Rule of Law
“Law can never issue an injunction binding on all which really

embodies what is best for each; it cannot prescribe with perfect
accuracy what is good and right for each member of the
community at any one time. The differences of human
personality, the variety of men’s activities, and the inevitable
unsettlement attending all human experience make it impossible
for any art whatsoever to issue unqualified rules holding good on
all questions at all times.” (Statesman, 294b)
“It is impossible…for something invariable and unqualified to deal

satisfactorily with what is never uniform and constant.”
(Statesman, 294c.)
Responses:
American Realism
Oliver Wendell Holmes would have us reject 1.
The idea that the law determines the outcome of a case is part
of the myth of the rule of law. But it is not what actually
happens in courts.
Observation of what happens in courts rooms makes plain that

judges routinely deliver judgments they take to be sound which
are only retrospectively justified by reference to law.
Responses:
Positivism
The positivists, historically perhaps the most influential

school in the philosophy of law in the modern period, would
have us reject (2).
Law and morality are distinct. A law can be immoral and still
be law (however unpalatable that might be).
A law is whatever a legitimate ruler or process says it is

(whatever is on the statute books is a law).
Responses: Natural Law
Morality is right reason. And law is a species of right reason

(right reason combined with coercive power conferred on
one with responsibility for the common good).
No immoral law is genuine law, and no application of a law

that has immoral consequences is a proper application of
that law. In case of conflict between justice and the letter of
the law, the judge must advert to right reason to set aside
the letter of a particular law by appealing to a more
fundamental consideration (perhaps a higher, or more
general law or legal principle).
Responses: Dworkin
The law isn’t just what’s on the statue books (contra

Positivism). The law has gaps. And the laws are often difficult
to interpret. In such cases judges have to interpret the law,
and even fill in the blanks.
But they do not do this by an appeal to ‘right reason’ (NL), or

to what strikes them as right (Realism), but by reflecting on
the spirit of the entire legal corpus and the intentions of
legislators.
This type of reflection can be employed when conflicts

between justice and the letter of the law arise without bringing
the court into disrepute while avoiding the appearance of
being ad hoc or excessively discretionary.
Key Questions
1. Why is law necessary? What is it for?

2. What is law? What makes a putative law a genuine law?
3. Can there be genuine law if there is no court or judicial
system to enforce it? (International law is problematic for
those who think law without enforcement is just a paper
law.)
4. How does one determine what the law is in any particular
circumstance? As Dworkin makes plain, it is not always
obvious what the statutes books say.
5. If a law is routinely ignored – as they often are in the case
of international law, or ancient laws that haven’t been
removed from the books – is it still a law?
Key Questions con’t
6. What makes for good law? Is the process of passing a bill

into law the crucial factor, or is the content of the law
decisive? What principles should legislators advert to when
drafting legislation?
7. What is the connection between law and morality?
8. Can a people legitimately overthrow a regime that abuses its

power to inforce immoral laws?

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Erasmus Exchange:

OBU and Dimitrie Cantemir

A Central Aporia of the

• Reminders regarding the Rule of Law

(1) The law applies equally to all persons regardless of social,

Divine Right of Kings: The King’s word is law

“Law can never issue an injunction binding on all which really

“It is impossible…for something invariable and unqualified to deal

Oliver Wendell Holmes would have us reject 1.

Observation of what happens in courts rooms makes plain that

The positivists, historically perhaps the most influential

A law is whatever a legitimate ruler or process says it is

Morality is right reason. And law is a species of right reason

No immoral law is genuine law, and no application of a law

The law isn’t just what’s on the statue books (contra

But they do not do this by an appeal to ‘right reason’ (NL), or

This type of reflection can be employed when conflicts

1. Why is law necessary? What is it for?

6. What makes for good law? Is the process of passing a bill

7. What is the connection between law and morality?

8. Can a people legitimately overthrow a regime that abuses its

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