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Allan Beever lays the foundation for a timely philosophical and empirical study of the nature of law with a detailed examination of the structure of evolving law through declaratory speech acts.

Image courtesy of interviewee. March 25, 2024

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This video video is a comprehensive discussion by a philosopher explaining the motivations behind writing a book on jurisprudence and their critique of mainstream legal philosophy. The author expresses dissatisfaction with what they perceive as an insular, antiquated, and incestuous field of study that fails to integrate advancements from other areas of philosophy. They note a tendency in legal philosophy to take law for granted, using outdated frameworks and failing to engage critically with how laws are formed and the implications they have on society.

The author critically analyzes HLA Hart's seminal work on the philosophy of law, suggesting that it overlooks deeper philosophical questions about human nature and societal organization. They emphasize the importance of understanding how laws come into existence and their role in shaping human behavior.

Moreover, they propose a shift in perspective, advocating for a theory that recognizes the complexity of legal systems as intertwined with social structures. The author introduces the notion of "declarations" and "status functions," arguing that laws are social constructs that gain validity through collective recognition rather than being inherently moral or unique.

This video video elaborates on the dual nature of law, which functions both as a form of coercion and as a rational guide to behavior, emphasizing that legal philosophies often focus on one aspect while neglecting the other. The author argues that both natural law theorists and legal positivists have valid points but are limited by their respective views. Ultimately, the message calls for a more nuanced understanding of law that embraces its complexities and interconnections with broader social realities.

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Why did I write the book?

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Well, there's a, a positive

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and a negative answer, to that question that the,

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the negative answer is I was very unhappy with

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what I call mainstream jurisprudence.

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You know, what sort of goes on in most classrooms,

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at least in the English speaking world, in this area.

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And I, I had been for a long time, I taught the subject

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and then sort of stopped because I, I just thought,

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I can't teach the stuff anymore.

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'cause I don't think it's right. And,

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and then spent the, the next few years sort

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of sifting in my own mind about,

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about what the problems were.

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And I, I think that there are three things

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that really bothered me about, about it.

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I, I, I say in the, in the book that I, I find modern,

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excuse me, modern J experience, insular,

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antiquated, and incestuous.

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And, and what I mean by that is, is that a modern philosophy

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of law seems to not have learned very much from,

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from what's going on in philosophy

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outside the philosophy of law.

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Uh, it, I mean, the, the key event in the philosophy

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of law in the 20th century,

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at least if you're an English speaker, is the publication

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of, HLA hearts the concept of law in, in 1961.

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And the sort of style of philosophy that most,

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anglophone philosophers of Lord are doing is very similar to

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what Hart was doing in the 1960s.

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But philosophy in general has changed radically

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since the 1960s.

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And, and I just, I don't feel that the philosophy

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of law has already kept up with these, with these changes.

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So that's there. So the insular, but in the antiquated, but,

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but I also feel it's quite in incestuous in the sense

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that philosophers of law,

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always talking about other philosophers of law there,

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if you, if you pick up a, a textbook

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or you know, a student oriented book on the philosophy

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of law, what you find is that in the,

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the chapter headings tend to be people's names, you know,

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so there's a chapter on heart, there's a chapter on Ronald D

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and there's a chapter on John Finnis or, or whatever.

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Um, and, and that's a little bit odd because,

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and modern analytic philosophy is not like that.

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It's not a philosophy of, of big names.

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It's a philosophy of ideas, of thoughts, of topics.

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Um, and so there's something very odd about this as,

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the, the philosophy

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of law doesn't look like the rest of philosophy.

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And, and, and that's what bothered me for a long time.

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And I, I thought, you know, what's going on here?

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What, why are we, so, in particular, why are we

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so fascinated with debates that really w that were brought

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to the, the fore of the subject in the 1960s?

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Why are we still talking about this stuff when a philosophy

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as a whole has moved on?

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Um, there's another problem I have with,

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with mainstream jurisprudence,

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and my, my slogan for capturing that would be to say

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that I think it just takes the law for granted.

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So it's supposed to be a philosophy of law,

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but it just takes the law for granted.

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And lemme just explain what I what I mean by that.

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So, one of heart's arguments in the, in this book, the,

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this, seminal book, the, the concept of law

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against his opponents.

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Now, the opponents that he's attacking here are people

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who think that there is some essential connection

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between law and morality.

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And he says, that's wrong.

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There's, there's no essential connection

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between law and morality.

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And, and I can prove that.

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He says, because look, I'll go out

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and I'll show you some examples of law.

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So he takes the, so say for example, the laws

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of Nazi Germany, or the apartheid laws of South Africa,

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or, the Jim Crow, the segregationist laws

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that existed in the Southern United States

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before the Civil Rights movement.

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He says, look, take the, have a look.

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See, there are these laws there, and they're immoral, right?

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So we can see that there is no essential connection

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between law and morality.

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Now, I, I think in a way that argument's fine,

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but the problem for me was that, you know, he,

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this argument takes the, takes the law

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for granted in the sense that he just says, look,

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just go out there and see there are these laws there, right?

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Um, and I wanna say, yeah, but how did they get there?

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I mean, and when I say, how did they get there?

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I don't just mean, you know, how, how,

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what was the actual procedure for passing,

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say, the Nuremberg Laws?

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I, I mean, what is it about human beings

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that makes us do these things?

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Why do we organize our societies in accordance with,

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these structures?

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Uh, we don't have to, we, you know, there are plenty

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of other species on this planet who are intelligence

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and so forth who don't do these things.

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So what is it about us that makes us do this?

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And what makes us capable of doing it?

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What, what, how are we able to do this?

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Um, questions like this.

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What role is law playing in, in human life,

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and how does it play that role?

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Uh, these seem to me to be the

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interesting philosophical questions,

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and not that, the debates that,

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occur in mainstream jurisprudence.

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I personally, maybe it's just me,

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but personally, I don't find those debates very

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philosophically interesting.

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I think these issues that these questions are, are more,

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interesting to philosophy and then the kind of things

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that philosophers and other areas of philosophy would ask.

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Uh, so it seems to me we ought to be asking them in this,

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context as well.

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So that's all the negative stuff, you know, I wasn't happy

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with, with the way things were.

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And I, I, I, I wanted to change.

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And the positive thing is I just thought I had something to,

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to say about this.

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And it had been bouncing around in my head for a couple

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of years as I, as I said earlier,

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and, I, I was, I didn't actually want to write the book.

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I was, I was working on another book

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that was taking me a long time to get this,

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a book I've sub subsequently published.

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And I, I had taken me years to write this thing, and,

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and it's kind of stuck.

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And I, I wanted to concentrate on that,

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but I had these ideas in my head

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and I thought, I, look until I get these ideas about

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jurisprudence out, I'm, I'm not gonna be able to get on

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with my other projects.

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So I sat down and I, I wrote the book,

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and I wrote the whole book in six weeks.

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Now, that's the first draft.

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Then I had to spend a long time reading more stuff

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and revising and all of that.

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But it was just, it was as clogged in my head,

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and I just had to get it, had to get it out.

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And I hope that it's something that might help

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to refocus the debate,

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because one of the things that, that lots of people who

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who study the subject will say is that they, it,

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the subject doesn't really help them understand law.

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Um, that's a very common complaint

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that you hear from students and so on.

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You know, they, they might be interested in some

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of the debates in jurisprudence,

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but they, they hasn't really helped them understand law

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or helped them with their other legal subjects and so on.

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And I think that's a sign that something has gone wrong.

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Um, it's a, it's a sign that the philosophy

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of law has become disconnected with the thing

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that it's meant to be examining.

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So, so anyway, that's the, the idea is

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that I'm hopefully made some kind

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of contribution towards reversing that.

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John Sewell is a, a American, philosophers taught

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for a long time at the, at the University

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of California at Berkeley.

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And he's famous for developing a, a theory, well,

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he started off in the philosophy of language,

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and then he moved into the philosophy of mind

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and then into the philosophy of society.

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Um, no, I, I've actually never met, John Circle.

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I, I, he's a very big influence on my work

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because, his work is so useful for the project

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that I was engaged in.

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Um, and maybe that's what I should talk about, why,

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how the influence, but what kind of, what,

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why his influence was so important to me.

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Um, so I, I've said that, mainstream jurisprudence,

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my claim is that mainstream jurisprudence

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just takes the law for granted.

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And, and what we really need, I, I suggest is a theory

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that helps us to work out things like, you know,

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where the law comes from.

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What is it about us that makes us create law,

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why we obey it when it's, when it's created,

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what impact it has on us

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that makes us obey it, and, and so on.

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And to do that, if, if we're gonna provide a theory of that,

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we can't just start with, with examples of law

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as Hart does in the concept of law.

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Um, we've gotta investigate the kinds of beings that we are.

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We've gotta have an investigation into the kind

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of creatures that we are.

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So, in other words, we've got our starting place can't be

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the philosophy of law itself.

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We've gotta start, back further.

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Um, and this would,

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what I found very useful in sales workers is you can start

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here with a philosophy of mind.

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He is a, the, i, it is called intentionality.

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That's just a piece of philosophical jargon.

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But what that's really about is

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how the mind relates to the world.

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So it is got a theory about

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how the mind relates to the world.

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And then he connects this with a theory of language.

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So he, he talks about how, how we use language to refer to

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and change the world.

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Um, and then he has a theory about, about

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how we construct society on the basis of our intentionality

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and language.

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Um, and then, all I needed to do with

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that foundation in place was just explain the last little

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bit, which is what, you know, once we've got society,

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what little, you know, I need

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to explain the little corner of society.

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That's, that's law.

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So that was the project, really not, not just to start

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with law and, you know,

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engage in debates about the nature of law between,

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legal philosophers, but to talk about

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how law comes into human life, in the first place.

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And a full picture, right? That's, that's the idea.

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To try and present a, a, a full, a full picture.

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Um, and the, the key elements of this picture is this,

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I mean, obviously it's a very complex story,

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and it is not something that presents in, in a few minutes,

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but I, I think I can present in a,

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in a very short time present, really the key aspect of the,

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of the theory which, surrounds the, the concept

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of a, of a, of a declaration.

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Um, so, so when we are thinking of declarations,

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we are thinking of utterances to use the jargon speech acts

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that are very curious.

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They're a very curious kind of thing.

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So let me just give you a couple of examples of, of them.

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So one is you imagine you're at a meeting,

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and meetings tend to be, the, the meetings I go

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to anyway, these days are much more informal than this.

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But if you imagine you're at a, a formal meeting,

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and the whoever's the chairperson of that meeting

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says at the end of the meeting, the meeting is adjourned.

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Right? Or, or another example,

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I've got a a $5, note here.

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And on, on the note is, is written,

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this note is legal tender for $5.

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Okay? This, there's another, now on the face of it,

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these utterances, these speech acts,

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the meeting is adjourned.

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And this note is legal tender for $5.

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They, they look like statements,

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but they, they look like they are assertions

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about the way the world is.

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You know, like it, they,

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they have a very similar grammatical

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structure to my, my claim.

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It's cloudy today. I'm just looking out the window,

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and I can see it's, it's not a very nice

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day to day here in New Zealand.

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It's, it's quite cloudy.

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So they look like they have the same structure,

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the same logical structure, but they don't.

11:23.425 --> 11:28.165
Um, and one way to tell this is that, if, if you,

11:28.265 --> 11:32.015
if I say that it's cloudy today, you can ask me how,

11:32.035 --> 11:34.575
how do I know that it's cloudy today?

11:35.355 --> 11:37.135
And, and I can say, I can give you an answer.

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I can say, well, I'm looking out the window

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and I can see there's clear, there's no sun.

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I can't see any blue sky at all. It's cloudy.

11:42.195 --> 11:45.215
So you can ask me for a justification for what I'm saying,

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and I can give you, I can give you an answer,

11:47.175 --> 11:48.375
and that's perfectly in order.

11:49.115 --> 11:50.935
But in these other, the two cases

11:50.965 --> 11:52.815
that I gave earlier, you can't do

11:52.815 --> 11:53.815
That. So

11:53.815 --> 11:54.845
if the chair

11:54.845 --> 11:56.805
of the meeting says the meeting is adjourned,

11:56.825 --> 12:00.185
and you said, how do you know you've missed the point,

12:01.285 --> 12:03.585
you've missed the points of the utterance, right?

12:03.695 --> 12:05.745
It's, it looks like it's an assertion.

12:05.885 --> 12:07.225
It looks like it's a statement

12:07.225 --> 12:08.265
about the world, but it isn't.

12:08.295 --> 12:11.385
It's something else. It's something very curious.

12:11.565 --> 12:13.145
And similarly, with, with this, you know,

12:13.145 --> 12:14.865
this note is legal tender for $5.

12:15.325 --> 12:17.705
If I asked, well, how did they, you know,

12:18.655 --> 12:20.745
when they wrote the, on this, you know, stamp this on it,

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the Reserve Bank printed this on the, this piece of plastic.

12:23.765 --> 12:26.305
How did they know that this note was legal tender for $5?

12:26.365 --> 12:27.865
Did they do some investigation?

12:27.885 --> 12:30.265
You know, did they hire some scientists to do some?

12:30.805 --> 12:31.985
No, that's not the point.

12:32.045 --> 12:34.145
That's not, it's not a statement like that.

12:34.215 --> 12:36.785
It's not an utterance like that at all.

12:37.535 --> 12:39.945
There's a certain magic in these things,

12:40.005 --> 12:41.105
in these declarations.

12:41.165 --> 12:44.145
We do something that's, that's, very odd.

12:44.605 --> 12:47.625
Um, and actually one of IL's favorite sayings is that a,

12:47.705 --> 12:50.305
a philosopher is someone who allows themself

12:50.305 --> 12:51.625
to be astonished by things

12:51.625 --> 12:54.225
that ordinary saying people just take for granted.

12:54.845 --> 12:57.305
And of course, it's true that we just take this for granted.

12:57.405 --> 12:59.345
But there is something really astonishing

12:59.355 --> 13:00.625
about what happens here.

13:01.285 --> 13:04.345
We have this little trick that we use,

13:04.695 --> 13:07.545
this little linguistic trick that is,

13:07.965 --> 13:09.385
we say something is true,

13:10.765 --> 13:13.985
and in by virtue of saying it,

13:14.165 --> 13:16.305
we make it true, right?

13:16.305 --> 13:17.905
There's a kind of magic in this.

13:17.965 --> 13:19.345
We say that something's true,

13:19.685 --> 13:22.805
and in saying it, we make it true.

13:23.305 --> 13:24.565
So when the chair

13:24.565 --> 13:27.365
of the meeting says the meeting is adjourned, that makes

13:27.395 --> 13:29.785
that adjourns the meeting, right?

13:29.855 --> 13:32.145
That makes it true that the meeting is adjourned.

13:32.205 --> 13:35.065
So the, the on the face of it,

13:35.125 --> 13:37.705
the chair is just making a statement of fact,

13:38.045 --> 13:39.265
but it's not, it's a state.

13:39.295 --> 13:42.065
It's a, it's an utterance that makes the state the content

13:42.125 --> 13:43.945
of the utterance true, right?

13:43.945 --> 13:44.985
There's a magic in this.

13:45.015 --> 13:47.225
It's like at the, you know, for example, at the beginning

13:47.225 --> 13:51.465
of the, of, of Genesis in the Bible where, so God said,

13:51.685 --> 13:54.345
let there be light, and there was light, right?

13:54.365 --> 13:57.105
So God said, God made an utterance, right?

13:57.205 --> 13:58.545
And God said, let there be

13:58.545 --> 13:59.585
light, then bang, there was light.

13:59.925 --> 14:02.705
Now, we, of course, we can't do that with physical things.

14:02.805 --> 14:06.145
We can't bring physical reality into existence,

14:06.445 --> 14:10.825
but we actually can bring social reality into existence in

14:10.825 --> 14:15.105
this astonishing, I, you know, astonishing way,

14:15.625 --> 14:18.625
I mean, what makes this legal tender for $5 is

14:18.625 --> 14:20.865
that these people at the Reserve Bank said

14:21.375 --> 14:23.385
that this is legal tender for $5.

14:24.215 --> 14:26.465
Okay? So there is this magic that's involved,

14:26.565 --> 14:29.185
and this, so this is the theory about how we create society.

14:29.365 --> 14:31.945
We use, now we do it in all the detail is different

14:31.945 --> 14:33.865
between all the different, different social

14:33.865 --> 14:35.025
institutions and so on.

14:35.205 --> 14:36.225
But the idea is

14:36.225 --> 14:38.185
that there's always the same logical structure.

14:38.645 --> 14:41.425
We make this thing called a declaration

14:41.435 --> 14:43.185
where we say something is true,

14:43.245 --> 14:47.465
and we make it true by saying, that it's true.

14:48.205 --> 14:50.185
And, and you know, there's, as I say, there's a,

14:50.185 --> 14:52.925
there's a ma there's a real magic in this that, that we,

14:53.105 --> 14:54.845
we get away with, right?

14:54.845 --> 14:59.125
Because we convince other people to go along with it, okay?

14:59.125 --> 15:01.085
And that, that's the, I, that's the, the jargon for

15:01.085 --> 15:02.285
that is collective recognition.

15:02.345 --> 15:04.845
We, we get, we get people to go along with it.

15:04.845 --> 15:07.445
They might not like it. They may like it,

15:07.445 --> 15:08.485
but they may not like it.

15:08.485 --> 15:10.565
They may approve it, they may not approve of it,

15:10.825 --> 15:15.605
but they orient their behavior in the light of it, right?

15:15.625 --> 15:18.285
So I start behaving in a certain way, given

15:18.285 --> 15:19.325
that we've done this.

15:19.825 --> 15:23.125
And the, so the idea here is that we,

15:23.465 --> 15:24.885
use another little piece of jargon.

15:24.885 --> 15:28.405
We create what are called status functions in these ways.

15:28.505 --> 15:31.405
So a status function is a function that a person

15:31.665 --> 15:34.245
or something has that doesn't relate

15:34.305 --> 15:36.445
to the physical construction of that thing.

15:36.505 --> 15:39.685
So that, that this is $5, it's got nothing to do

15:39.685 --> 15:41.125
with what it's made of.

15:41.235 --> 15:42.885
It's got nothing to do with the, it's made

15:42.885 --> 15:44.565
of a certain plastic or it's polymer.

15:44.915 --> 15:47.765
It's got nothing that's got nothing to do with why it's $5.

15:48.065 --> 15:50.325
The reason I'm a professor, it's got nothing to do

15:50.325 --> 15:52.565
with the molecules that make up my body.

15:53.075 --> 15:55.365
It's because somebody made a declaration

15:55.365 --> 15:56.805
that said I was a professor,

15:56.825 --> 15:59.005
and everyone goes along with it, right?

15:59.025 --> 16:02.125
And that's the idea, is that's what we do with law, right?

16:02.125 --> 16:04.565
So where does the law come from?

16:04.565 --> 16:05.885
Where did Nazi law come from?

16:05.885 --> 16:09.365
Where did, the law of a party come from?

16:09.515 --> 16:12.455
Someone made a declaration, right?

16:12.715 --> 16:15.055
And it received collective recognition.

16:15.165 --> 16:16.335
It's just the same as this.

16:16.365 --> 16:18.295
It's just the same as the meeting is adjourned.

16:18.295 --> 16:19.735
It's just the same as,

16:19.935 --> 16:21.095
I pronounce your husband and wife.

16:21.095 --> 16:23.255
It's just the same as war is here by declared.

16:23.255 --> 16:25.015
It's just the same as we are friends now, right?

16:25.035 --> 16:29.055
But there's all these social institutions that we create,

16:29.835 --> 16:32.215
we create in this way, and law is just one of them.

16:32.715 --> 16:35.335
No, nothing special. The reason that it's important

16:35.335 --> 16:39.415
to the project is it enabled me to, to talk, to present a,

16:39.415 --> 16:42.175
the, the theory that I've just, explained.

16:42.915 --> 16:45.715
So, I mean, I had,

16:46.055 --> 16:49.835
all this work about declarations and, speech acts

16:49.835 --> 16:50.995
and how it all connects together.

16:50.995 --> 16:52.715
That's all found in the work of sur.

16:53.295 --> 16:56.675
And, and really all I'm doing is taking

16:57.335 --> 17:02.275
the conclusions that he came to and applying it to law.

17:02.735 --> 17:06.635
And a key feature of that account is that,

17:06.895 --> 17:08.915
law turns out on this theory

17:09.095 --> 17:12.395
to just be an ordinary part of society.

17:12.535 --> 17:15.395
See, philosophers of law have a tendency to talk about law

17:15.735 --> 17:17.835
as if it was a really unique thing,

17:17.835 --> 17:19.315
different than everything else.

17:19.315 --> 17:21.475
Nothing like other social institutions.

17:21.975 --> 17:23.235
And I think that's wrong.

17:23.395 --> 17:25.235
I think law is actually quite, you know,

17:25.235 --> 17:27.515
it's quite a lot like other social institutions.

17:27.545 --> 17:28.915
Yeah, there are some differences,

17:29.295 --> 17:31.955
but it's not a radically unique separate thing.

17:32.185 --> 17:34.675
It's a very, it's very similar to lots

17:34.675 --> 17:36.275
of other social institutions.

17:36.295 --> 17:39.035
And the real, the job of philosophy is to bring that out

17:39.305 --> 17:40.675
because we make it

17:41.215 --> 17:44.715
and we, we,

17:44.945 --> 17:48.115
sustain it in the, a very similar way that we make

17:48.115 --> 17:50.125
and sustain all other social institutions.

17:50.125 --> 17:51.565
And that's really the insight.

17:52.205 --> 17:54.405
I think it's that we don't need a special theory

17:54.405 --> 17:55.845
of law in order to understand it.

17:56.045 --> 17:59.005
'cause law's not all that special in interpretation is

17:59.005 --> 18:00.165
really, I think where all

18:00.165 --> 18:02.205
of this stuff comes, comes together.

18:02.345 --> 18:06.765
So there's a debate in the, philosophy of law

18:06.965 --> 18:09.365
between two, you know, I said

18:09.365 --> 18:11.365
before that there were gonna be chapter headings and,

18:11.625 --> 18:12.845
and textbooks with these names.

18:12.905 --> 18:14.645
And one of the names will be Ronald Dawkin,

18:14.645 --> 18:16.285
and another name might be Joseph Raz.

18:16.295 --> 18:19.925
These are two very big figures in the philosophy of law.

18:20.025 --> 18:25.005
And, Dawkins view is that when we interpret law,

18:25.625 --> 18:28.085
we have to take into account social morality.

18:28.625 --> 18:30.605
So whenever we're interpreting law, we have

18:30.605 --> 18:32.325
to take social morality into account.

18:32.865 --> 18:37.565
And, RA's view is, no, that's not correct. Okay?

18:37.635 --> 18:40.925
Sometimes we might have to do that, but in the vast

18:41.265 --> 18:43.885
or in at least many cases, we don't have to.

18:44.585 --> 18:46.725
And his argument for this is to say, look,

18:46.725 --> 18:49.445
often it's the case that the meaning of the law is clear.

18:49.755 --> 18:51.405
It's obvious what the law means.

18:51.905 --> 18:54.285
And when it's obvious, there doesn't need

18:54.285 --> 18:55.885
to be any interpretation done.

18:56.795 --> 18:58.045
Okay? And that's a debate

18:58.045 --> 19:00.605
that rages in the philosophy of law at the moment.

19:00.745 --> 19:05.725
Now, my view about this is that RA's view can't be right

19:06.275 --> 19:07.685
because,

19:08.385 --> 19:11.605
and this has got nothing to do with law in in particular,

19:11.875 --> 19:15.705
it's because we interpret everything,

19:16.045 --> 19:19.465
and we always interpret things with morality in mind.

19:19.725 --> 19:22.345
And there's nothing special about law in this regard.

19:22.965 --> 19:24.825
And, and so what I do in the book is, I,

19:24.945 --> 19:26.945
I produce a whole lot of examples that are designed

19:27.005 --> 19:28.225
to, to show this.

19:28.225 --> 19:30.065
But let's, let's just take a simple case.

19:30.115 --> 19:33.545
Let's just say, I say, I'm late for work.

19:34.455 --> 19:36.875
But that looks like a, it just incidentally,

19:36.915 --> 19:38.395
I think it always helps to take things

19:38.495 --> 19:39.635
out of the legal context.

19:40.575 --> 19:43.035
The the law makes things co the law

19:43.035 --> 19:46.115
and lawyers make things complicated, right?

19:46.215 --> 19:47.675
And so, and,

19:47.735 --> 19:50.315
and so if, if you can take examples out

19:50.315 --> 19:52.275
of the legal context, I think they often get much

19:52.295 --> 19:53.475
easier to deal with.

19:53.505 --> 19:56.035
It's a sort of a trick I try and convince my students of,

19:56.215 --> 19:57.635
and all the subjects that they do.

19:58.295 --> 20:01.275
So just take, take an example of don't think of a law.

20:01.275 --> 20:03.355
Think, just think of a statement like, I'm late for work.

20:03.455 --> 20:05.355
We, if I said that, we,

20:05.455 --> 20:07.635
we wouldn't have any difficulty understanding that.

20:08.135 --> 20:12.195
So RAs says that we are not interpreting, the utterance,

20:12.195 --> 20:14.715
but it seems to me that that's, that's not right,

20:14.715 --> 20:19.115
because strictly in terms of the literal meaning

20:19.135 --> 20:22.155
of the words in the sentence, there are all sorts

20:22.155 --> 20:23.395
of other interpretations

20:23.395 --> 20:26.195
that we could produce of the statement.

20:26.295 --> 20:27.715
Um, I'm, I'm late for work.

20:27.935 --> 20:30.155
Uh, but, but we don't, like, for example,

20:30.735 --> 20:32.115
so I'm late for work.

20:32.225 --> 20:34.035
Well, you know that I'm late.

20:34.065 --> 20:36.235
That could mean I'm dead, right?

20:36.615 --> 20:38.035
I'm late for work, I'm dead,

20:38.095 --> 20:39.675
so I'm not going to work 'cause I'm dead.

20:39.675 --> 20:41.715
But we know it doesn't mean that, right?

20:41.815 --> 20:44.635
Or it could be work could be interpreted in the sense

20:44.635 --> 20:47.515
that physicists use it, you know, sort of the amount

20:47.515 --> 20:49.075
of energy required to move and not, you know, that,

20:49.375 --> 20:50.875
but you know that that's not what it means.

20:50.875 --> 20:53.475
It means employment, and so on and so on.

20:53.475 --> 20:55.675
And you know that when I'm talking about going to work,

20:55.855 --> 20:58.635
I'm going to, get, get the car or a bus or something.

20:58.655 --> 21:01.115
I'm not gonna travel through the center of the earth, that

21:01.115 --> 21:02.435
and so on and so on and so on.

21:02.435 --> 21:05.435
There are all of these, possible in terms

21:05.555 --> 21:07.795
of the literal meaning of the words of the sentence.

21:07.795 --> 21:10.395
There are all of these possible interpretations

21:10.395 --> 21:14.115
that are available that we just, we don't even think of.

21:14.955 --> 21:18.135
Now, this connects with a really important idea

21:18.165 --> 21:21.815
that the jargon for this is intentionality rises

21:21.815 --> 21:23.015
to the level of the background skill.

21:23.015 --> 21:24.895
That's just a horrible piece of jargon.

21:24.895 --> 21:28.695
But what it means is that to be skilled at something,

21:29.395 --> 21:30.495
not necessarily always,

21:30.515 --> 21:32.495
but it usually means that you are able to do

21:32.495 --> 21:35.285
that thing without thinking, right?

21:35.345 --> 21:37.845
So think about, you know, walking or, or driving

21:38.105 --> 21:39.125
or if skiing

21:39.125 --> 21:40.645
or if, you know, I mean, skiing's a quite,

21:40.725 --> 21:41.885
i i is my favorite one

21:41.885 --> 21:44.125
because I learned to ski when I was about

21:44.125 --> 21:45.485
30, 35 or something.

21:45.945 --> 21:48.125
And I remember what it was like, it was hard, right?

21:48.205 --> 21:51.085
I had to think, you know, weight on that leg, you know,

21:51.085 --> 21:53.405
I had to think really, really hard about that.

21:53.465 --> 21:56.245
But now I just do it. I just do it, right?

21:56.245 --> 21:58.045
And I'm not thinking weight on that leg unless,

21:58.045 --> 21:59.645
unless I notice that I'm skiing badly,

21:59.785 --> 22:01.205
I'm not thinking about it at all.

22:01.775 --> 22:04.005
Right? So that's what it's like to develop a skill.

22:04.025 --> 22:05.525
You get to a position where you don't

22:05.525 --> 22:06.645
have to think about it anymore.

22:07.305 --> 22:10.085
Now, when it comes to language, we are very skilled at

22:10.085 --> 22:11.535
that, right?

22:11.595 --> 22:15.055
And so we don't notice a lot of what's going on.

22:15.595 --> 22:18.375
So what I want to say about, about the interpretation

22:18.435 --> 22:22.695
of e even just simple sentences like, you know, I'm late

22:22.695 --> 22:24.215
for work, is that there is a lot

22:24.215 --> 22:25.735
of interpreting that's going on there.

22:25.765 --> 22:27.335
It's just that we are very skilled at it,

22:27.335 --> 22:28.855
and so we don't have to think about it.

22:29.555 --> 22:31.495
Um, but there are certain situations

22:31.495 --> 22:33.455
that you could put yourself in where you, where,

22:33.455 --> 22:34.775
you know, can notice this.

22:35.745 --> 22:37.365
Um, so for ex, you know, for example,

22:37.365 --> 22:38.885
when you learn a new skill, and,

22:39.065 --> 22:43.445
but my favorite example of of this is,

22:43.665 --> 22:44.925
is artworks.

22:44.925 --> 22:49.645
Because often the artist is playing with this fact,

22:49.715 --> 22:53.165
it's it presenting the stuff in a way that means

22:53.165 --> 22:56.645
that we become aware of what we are normally unaware of.

22:57.465 --> 23:00.685
Um, and I think a really good example of this is the,

23:00.745 --> 23:03.925
the, the painting, the, a picture of which I, I sent

23:03.925 --> 23:06.085
to you that I'm, I'm just looking here on the screen now,

23:06.145 --> 23:09.685
the, the Tabor painting that it actually has two names.

23:10.705 --> 23:13.205
So, it has, well, they're two nicknames.

23:13.205 --> 23:17.445
Neither of the names were given to the painting by, by tush,

23:17.545 --> 23:22.325
but one name is the, the Gallant, conversation.

23:22.345 --> 23:24.405
And the other is the paternal admonition.

23:24.985 --> 23:28.485
And, the, so I just, as I said, I'm just looking at the,

23:28.545 --> 23:31.885
the painting now, it's, there's a,

23:32.025 --> 23:33.285
two people sitting down,

23:33.835 --> 23:36.005
woman's drinking some wine from a glass.

23:36.465 --> 23:40.165
So a woman standing closer to us wearing a, a,

23:40.285 --> 23:41.325
a very fancy dress.

23:42.105 --> 23:44.805
Um, and the question is, what's going on in this painting?

23:45.845 --> 23:50.145
Now, when Victorians looked at the painting, they,

23:50.175 --> 23:52.225
they thought that this was a scene

23:52.415 --> 23:53.945
happening in a family home.

23:54.445 --> 23:56.985
The two people sitting down are the husband and wife.

23:57.685 --> 23:59.985
And the suggestion is that the, that, that, that,

24:00.125 --> 24:02.225
that's their daughter standing in front of them.

24:02.805 --> 24:04.905
And the suggestion is that she's done something wrong.

24:05.325 --> 24:08.785
And, and the, the husband is her father is, you know,

24:08.805 --> 24:09.905
gently admonishing her,

24:09.905 --> 24:11.865
which is why it's called the parental admonition.

24:12.525 --> 24:13.785
Um, and you know,

24:14.005 --> 24:16.065
her mother's a bit embarrassed about the fact

24:16.065 --> 24:18.305
that she's been told off and is keeping her eyes averted

24:18.305 --> 24:20.305
because she's, you know, she, she doesn't want

24:20.305 --> 24:23.785
to embarrassed her, her daughter and, and so on.

24:24.615 --> 24:27.465
Okay? Now, when I look at this painting,

24:27.705 --> 24:29.265
I see something completely different.

24:29.875 --> 24:32.185
There are things about this painting that,

24:32.335 --> 24:34.585
that interpretation doesn't make any sense to me

24:34.585 --> 24:37.425
because I mean, things like the guy's wearing a sword.

24:38.445 --> 24:40.765
I mean, why is he, if he's at home with his family,

24:40.945 --> 24:42.045
why is he wearing a sword?

24:42.045 --> 24:43.645
That's a very odd thing to be wearing.

24:44.345 --> 24:45.965
Um, I mean, there are lots of things, but,

24:46.025 --> 24:47.285
but he's two things in particular.

24:47.475 --> 24:48.885
He's, he, he can't see this.

24:48.955 --> 24:51.765
It's very hard to see, but he's got a coin in his hand.

24:52.705 --> 24:54.645
He is, he's his, his hand's been held up,

24:54.645 --> 24:55.845
but he's held holding up a coin.

24:56.745 --> 24:59.165
So why is he doing that? Right?

24:59.185 --> 25:02.685
The other thing is that that red sort

25:02.685 --> 25:04.405
of square object in the background

25:04.595 --> 25:06.085
that you might not notice at first.

25:06.105 --> 25:10.645
What's that? That's a bed. It's a four post a bed.

25:11.085 --> 25:12.405
I mean, there's all sorts of things you can,

25:12.515 --> 25:14.925
once you start seeing this, that that interpretation

25:14.925 --> 25:17.165
of the painting starts unraveling to me.

25:17.315 --> 25:19.005
This is a scene in a brothel,

25:19.385 --> 25:22.325
and what's happening is, the, the woman

25:22.395 --> 25:25.405
with the wine glasses, the madam o obviously the, the,

25:25.405 --> 25:27.285
the girl's closer to us as a prostitute,

25:27.305 --> 25:29.605
and they're the, they're negotiating the

25:29.605 --> 25:30.685
price for her services.

25:31.425 --> 25:32.765
Now, the, now why,

25:32.785 --> 25:34.805
why is this p why is this so important to me?

25:34.915 --> 25:36.125
It's important to me because

25:36.315 --> 25:39.405
what we see here is the way in which our moral ideas

25:40.545 --> 25:42.845
impact our interpretation of things, right?

25:42.845 --> 25:44.405
When the Victorians looked at this

25:44.405 --> 25:46.285
because of their sort of moral sensibilities,

25:46.875 --> 25:48.645
they just couldn't, it's not, well,

25:48.645 --> 25:49.925
couldn't is too strong a word,

25:49.925 --> 25:52.645
but it was very difficult for them to see it

25:52.745 --> 25:54.045
as a scene in a brothel,

25:54.195 --> 25:57.085
because that's just not the way that they were oriented

25:57.085 --> 25:58.845
to see, they were oriented to see it

25:58.845 --> 26:01.125
as if you like innocent, right?

26:01.125 --> 26:02.165
Whereas we,

26:02.225 --> 26:04.605
we have a different moral sensibility now, right?

26:04.665 --> 26:08.445
So when we look at the same painting, we just see things

26:08.445 --> 26:09.485
that they didn't see.

26:09.705 --> 26:11.885
And there's a sense in which that's literally true, right?

26:11.965 --> 26:13.805
I mean, obviously we see,

26:14.345 --> 26:17.245
we in the Victorians see the same paint, right?

26:17.275 --> 26:18.925
It's not that any that's changed,

26:19.305 --> 26:22.485
but we see a bed that they didn't see, right?

26:22.585 --> 26:25.605
We see a coin that they don't notice, right?

26:25.665 --> 26:27.485
And maybe a hundred years from now,

26:27.485 --> 26:29.045
people will see a whole lot of stuff in it

26:29.045 --> 26:30.405
that we are not seeing now

26:30.435 --> 26:34.565
because of the way our perspective,

26:34.895 --> 26:36.405
influences our interpretation.

26:36.785 --> 26:40.005
And so what I wanna say to res is that, you know,

26:40.005 --> 26:42.365
your position that we interpret law without morality in

26:42.365 --> 26:43.485
mind can't be, right?

26:43.755 --> 26:47.845
Because we interpret everything with morality in mind.

26:48.135 --> 26:49.965
Everything, every single thing.

26:50.075 --> 26:53.125
It's not just something about law, right?

26:53.345 --> 26:55.205
So, and it's, it's, this is just

26:55.205 --> 26:56.525
how we interpret everything.

26:57.105 --> 26:59.365
Now, that's, so that's my criticism of RAs.

26:59.365 --> 27:02.085
My criticism of, of, Dawkin would be

27:02.085 --> 27:04.785
that Dawkin presents his discovery,

27:04.845 --> 27:07.025
and I think it is a discovery that we interpret law

27:07.025 --> 27:09.425
with morality in mind, but he presents that discovery

27:09.525 --> 27:12.865
as a discovery about law as something unique to law.

27:13.485 --> 27:14.705
And my response would be

27:14.705 --> 27:15.785
to say, there's nothing unique to law.

27:15.785 --> 27:17.665
This is just the way human beings are.

27:18.165 --> 27:21.265
Law is nothing special in this regard.

27:21.405 --> 27:24.545
And so I, and I think that if, if this view is right,

27:24.605 --> 27:26.905
if this view I'm, propounding is right,

27:27.615 --> 27:30.185
then there's something just deeply wrong about the way

27:30.185 --> 27:31.785
philosophers of law think about law,

27:31.785 --> 27:33.665
and they have to go back and relearn,

27:34.285 --> 27:38.545
or all this philosophy, this non-legal philosophy that

27:38.895 --> 27:39.985
that needs to be learned.

27:40.325 --> 27:43.465
And there's lots of stuff, that that could be said here.

27:43.855 --> 27:46.505
There's just huge debates that are going on.

27:46.505 --> 27:49.385
But let, let me talk about what I think is what,

27:49.385 --> 27:50.945
for me is the most important thing.

27:51.725 --> 27:55.225
So, so the big divide in the philosophy of law is

27:55.225 --> 27:56.425
between people who think

27:56.935 --> 27:59.345
that there is an essential connection between law

27:59.345 --> 28:01.025
and morality, and people

28:01.165 --> 28:02.705
who don't think there is an essential

28:02.705 --> 28:04.105
connection between law and morality.

28:04.485 --> 28:07.385
And that's the, the jargon that's normally used there is

28:07.385 --> 28:09.665
that's natural lawyers on the one side,

28:09.665 --> 28:11.225
natural law theists on the one side

28:11.225 --> 28:12.665
who think there is an essential connection

28:12.845 --> 28:15.025
and legal ISTs who think

28:15.025 --> 28:18.825
that there isn't a natural connection.

28:19.245 --> 28:23.385
Um, and you know, my view is they're both right,

28:24.645 --> 28:25.825
and, and they're both wrong.

28:25.825 --> 28:27.705
They're both right, but they're both wrong

28:27.705 --> 28:29.265
to dis to disagree with each other.

28:29.285 --> 28:31.825
But now, in fairness to the natural law theorists,

28:31.825 --> 28:33.305
the natural law theorists often say, look,

28:33.305 --> 28:34.705
we're not really disagreeing, you know,

28:35.325 --> 28:37.145
and, it's just the positivists

28:37.145 --> 28:38.305
keep picking a fight with us.

28:39.285 --> 28:40.985
And I think that's that's right.

28:41.365 --> 28:43.705
But let me just give you, let me give you an example,

28:43.715 --> 28:46.905
which I think really brings the issue to the fore.

28:47.405 --> 28:50.105
So let's just imagine that a case is heard

28:50.105 --> 28:52.215
by the Supreme Court and

28:53.005 --> 28:56.015
that the Supreme Court says in, in this case,

28:56.365 --> 28:59.095
this is call it case one, the Supreme Court says,

28:59.415 --> 29:02.415
X is the law, what, whatever it is, X is the law.

29:03.285 --> 29:05.895
Okay? Okay, fine. So we will say, okay, from now on,

29:05.975 --> 29:07.255
X is the law, okay?

29:07.255 --> 29:08.935
But then imagine two years later,

29:09.595 --> 29:11.575
the same court may be different.

29:11.575 --> 29:14.655
Judges comes out and says, you know what?

29:14.725 --> 29:19.445
Case one is wrongly decided, case one got the law wrong.

29:20.565 --> 29:24.065
Y is the law not X. Okay?

29:24.085 --> 29:25.465
Now, this doesn't happen very often,

29:25.465 --> 29:26.705
but it does happen, right?

29:26.705 --> 29:30.025
There are, famous examples in, say, in the UK

29:30.025 --> 29:32.705
for example, where the, the House of Lords,

29:33.015 --> 29:34.465
when it was still the highest court, you know,

29:34.465 --> 29:37.425
before the creation of this UK Supreme Court had said this.

29:37.765 --> 29:40.065
So, you know, it doesn't happen often, but it does happen.

29:41.075 --> 29:43.925
Okay? Now, the, so, so case one

29:44.835 --> 29:48.385
court says X is the law case two, court says,

29:48.575 --> 29:51.105
case one was wrongly decided Y is the law.

29:51.845 --> 29:54.265
Now what are we just say, what was the law

29:54.265 --> 29:56.345
between case one and case two?

29:57.475 --> 30:00.545
Right? Now, the key, key thing here is when,

30:00.935 --> 30:03.505
when the court in case two says

30:03.505 --> 30:06.465
that case one was wrongly decided, they're not saying

30:07.245 --> 30:09.025
we think we need to change the law

30:09.025 --> 30:11.225
because situations changed,

30:11.245 --> 30:13.265
but you know, the new policy, whatever,

30:13.455 --> 30:14.745
they, no, that's not what they're saying.

30:14.745 --> 30:18.185
They're saying that court in case one made a made a legal

30:18.255 --> 30:19.745
mistake, right?

30:19.745 --> 30:20.785
They got the law wrong.

30:21.495 --> 30:23.345
Okay, so what are we gonna say about this?

30:23.345 --> 30:27.025
What, what should we say was the law between case one

30:27.725 --> 30:28.785
and case two?

30:29.645 --> 30:32.345
Now, the positivists want to say the law was X

30:33.475 --> 30:37.805
because that's what the, the Supreme Court in

30:37.805 --> 30:41.725
that jurisdiction had said in, in case one,

30:41.795 --> 30:45.845
that was the settled, that's what to, to use the jargon.

30:46.025 --> 30:49.085
That's what the settled legal materials said at the time.

30:49.465 --> 30:50.605
So the law is X.

30:51.305 --> 30:52.965
Um, and that seems like a really

30:53.005 --> 30:54.485
sensible thing to say, right?

30:54.525 --> 30:56.405
I mean, if you, if you'd gone to a lawyer

30:56.585 --> 30:59.645
and asked for some legal advice during that period,

31:00.105 --> 31:03.125
the lawyer would've told you that X was the law, right?

31:03.145 --> 31:06.005
It seems a really sensible thing to say. It seems right.

31:06.905 --> 31:10.485
The problem is, it seems inconsistent with what the later

31:11.085 --> 31:13.165
decision of the court and case two is saying,

31:13.165 --> 31:16.725
because that court is saying that X was never the law.

31:17.195 --> 31:19.045
They're saying that X was a mistake,

31:19.145 --> 31:21.765
it got it misunderstood the law, it got the law wrong.

31:22.225 --> 31:25.685
And added to this is the problem that,

31:26.385 --> 31:29.045
in nearly all jurisdictions, whether they're common law,

31:29.045 --> 31:30.165
civil law jurisdictions,

31:30.745 --> 31:34.885
the decision in case two will be retrospective, right?

31:34.945 --> 31:37.685
So it doesn't just apply from case two onwards.

31:37.905 --> 31:41.645
It goes, it, it, it, the, the theory is it sort of declares

31:41.645 --> 31:42.645
what the law always was.

31:42.705 --> 31:46.925
So it applies backwards into the past as well. Okay?

31:47.025 --> 31:49.925
So on the one hand, it seems really sensible to say

31:50.805 --> 31:53.455
that X was the law between case one and two,

31:53.475 --> 31:55.575
but on the other hand, it's, it doesn't,

31:55.575 --> 31:56.615
it doesn't seem right.

31:57.315 --> 32:00.415
And so the natural lawyers tend to want to say no, the,

32:00.515 --> 32:03.455
and Ronald Dawkin in particular would want to say

32:03.925 --> 32:05.815
that the law between case one

32:05.815 --> 32:08.175
and case two was y it's just

32:08.175 --> 32:10.295
that we all wrongly thought it was X.

32:11.845 --> 32:15.135
Okay? And that on the what the, the, now you have,

32:15.135 --> 32:16.295
but now you have the opposite problem.

32:16.435 --> 32:19.055
It seems like that that's sensible in terms of understanding

32:19.055 --> 32:20.375
what the court said in case two.

32:20.715 --> 32:23.735
But then what do you do about the fact that if you'd gone

32:23.735 --> 32:25.615
to a lawyer and asked them for advice,

32:25.615 --> 32:26.975
they would've told you the law is X.

32:26.975 --> 32:28.215
What do we just say about this?

32:28.675 --> 32:31.695
And so this is one of the debates that goes on in,

32:31.835 --> 32:34.255
in mainstream jurisprudence.

32:34.555 --> 32:38.455
And what I wanna say about that is that they're both right.

32:39.185 --> 32:41.885
And this is an argument that they shouldn't be having.

32:42.905 --> 32:44.965
And, and I think a lot of the debates

32:44.965 --> 32:47.085
that go on in the philosophy of law are just sort

32:47.085 --> 32:50.005
of wasted ink and wa wasted breath as it were.

32:50.005 --> 32:53.485
Because if they, if, if they could step back and,

32:53.585 --> 32:56.965
and see the law from a broader perspective, they would see

32:57.035 --> 32:59.605
that there are senses in which both sides are correct.

33:00.105 --> 33:03.445
So what I want to say about this is that the, there's a kind

33:03.445 --> 33:06.925
of duality in law when the law addresses us.

33:07.185 --> 33:08.765
It does so in two different ways.

33:09.665 --> 33:12.445
It, it addresses us as a sort of form of coercion.

33:13.025 --> 33:15.125
It, it addresses us as a form of force.

33:15.585 --> 33:18.725
It says, look, you have to do this whether you want to

33:18.725 --> 33:21.485
or not, or you're not allowed to do it, even if you want to.

33:22.305 --> 33:23.765
And that's, that, that's settled.

33:23.945 --> 33:25.685
We, we are telling you how you have to behave.

33:25.755 --> 33:27.325
It's, it's, it's coercion.

33:27.325 --> 33:30.445
Law is coercion, but there's a different sense of law

33:30.445 --> 33:33.805
where it addresses us as rational beings.

33:34.025 --> 33:35.365
So it gives us reasons.

33:36.345 --> 33:38.605
And this is particularly important in judgments.

33:38.605 --> 33:40.845
You know, the, the, when courts produce judgments,

33:40.845 --> 33:42.805
they can't just say you lose, you win.

33:43.395 --> 33:46.765
They have to give reasons why that person wins

33:46.765 --> 33:47.925
and that person loses.

33:48.265 --> 33:51.085
And so the idea here is, I think it was Roscoe pound who,

33:51.305 --> 33:54.165
who an American jurist who once said

33:54.165 --> 33:57.645
that the most important person in court is the party who's

33:57.645 --> 34:01.965
going to lose, because the job of the court is to explain to

34:01.965 --> 34:04.325
that person why that person is going to lose.

34:04.325 --> 34:06.285
Because o otherwise it's just naked force.

34:06.285 --> 34:07.645
It's just coercion. And,

34:07.665 --> 34:09.725
and now of course, that person might not listen.

34:09.835 --> 34:11.285
They might just be in a bad mood.

34:11.365 --> 34:13.925
And, but in principle, at least you've gotta be able

34:13.925 --> 34:16.485
to explain to that person why they, why they lose.

34:16.905 --> 34:18.405
Now, the law has this dual nature,

34:18.405 --> 34:20.485
then it addresses us in terms of force

34:20.585 --> 34:22.565
and addresses us in, in terms of reason.

34:23.105 --> 34:27.515
And the positivists latch onto the force part

34:27.535 --> 34:29.635
of the law and build a theory on that.

34:30.855 --> 34:34.035
And, and the natural lawyers latch onto the rational part

34:34.035 --> 34:36.195
of the law and build a theory on that.

34:37.015 --> 34:39.745
But the truth is, it's both, right?

34:39.745 --> 34:41.705
And there's just this duality in law.

34:41.805 --> 34:44.505
And that's because why is there this duality in law?

34:44.665 --> 34:46.785
'cause there's that duality in us, right?

34:47.085 --> 34:51.625
We are both physical and rational beings, right?

34:51.685 --> 34:54.505
And the law is just reflecting this, it, it says do it

34:54.505 --> 34:58.105
or else in the or else is in the end a physical thing.

34:58.135 --> 35:01.305
It's gonna not put me in prison, take some

35:01.305 --> 35:02.505
of my stuff, right?

35:02.505 --> 35:03.705
That's the physical side of it.

35:03.705 --> 35:05.625
But it also addresses me as a rational person.

35:05.725 --> 35:07.225
We are going to do this because,

35:07.485 --> 35:09.865
and it gives me reasons, right?

35:09.865 --> 35:11.865
So there's just this duality in law.

35:11.925 --> 35:15.825
And the right response to this is to properly explain

35:15.855 --> 35:19.065
that duality, not just to take one side of it

35:19.485 --> 35:20.865
and build a theory on that

35:20.885 --> 35:23.025
and reject the position of the people

35:23.365 --> 35:25.785
who take the other side and build a theory on that.

35:26.285 --> 35:29.505
So there's a complexity in law that the job of theory is

35:29.505 --> 35:33.465
to reflect that complexity and not, not to try and simplify.

Reassessing Modern Jurisprudence: A Critical Perspective

00:00:00 - Why did I write the book? Well, there's a, a positive and a negative answer, to that question that the, the negative answer is I was very unhappy with what I call mainstream jurisprudence. You know, what sort of goes on in most classrooms, at least in the English speaking world, in this area. And I, I had been for a long time, I taught the subject and then sort of stopped because I, I just thought, I can't teach the stuff anymore. 'cause I don't think it's right. And, and then spent the, the next few years sort of sifting in my own mind about, about what the problems were.
00:00:34 - that really bothered me about, about it. I, I, I say in the, in the book that I, I find modern, excuse me, modern J experience, insular, antiquated, and incestuous. And, and what I mean by that is, is that a modern philosophy of law seems to not have learned very much from, from what's going on in philosophy outside the philosophy of law. it, I mean, the, the key event in the philosophy of law in the 20th century,
00:01:04 - of, HLA hearts the concept of law in, in 1961. And the sort of style of philosophy that most, anglophone philosophers of Lord are doing is very similar to what Hart was doing in the 1960s. But philosophy in general has changed radically since the 1960s. And, and I just, I don't feel that the philosophy of law has already kept up with these, with these changes. So that's there. So the insular, but in the antiquated, but,
00:01:35 - that philosophers of law, always talking about other philosophers of law there, if you, if you pick up a, a textbook or you know, a student oriented book on the philosophy of law, what you find is that in the, the chapter headings tend to be people's names, you know, so there's a chapter on heart, there's a chapter on Ronald D and there's a chapter on John Finnis or, or whatever. and, and that's a little bit odd because, and modern analytic philosophy is not like that.
00:02:07 - It's a philosophy of ideas, of thoughts, of topics. and so there's something very odd about this as, the, the philosophy of law doesn't look like the rest of philosophy. And, and, and that's what bothered me for a long time. And I, I thought, you know, what's going on here? What, why are we, so, in particular, why are we so fascinated with debates that really w that were brought to the, the fore of the subject in the 1960s? Why are we still talking about this stuff when a philosophy
00:02:39 - there's another problem I have with, with mainstream jurisprudence, and my, my slogan for capturing that would be to say that I think it just takes the law for granted. So it's supposed to be a philosophy of law, but it just takes the law for granted. And lemme just explain what I what I mean by that. So, one of heart's arguments in the, in this book, the, this, seminal book, the, the concept of law against his opponents. Now, the opponents that he's attacking here are people

Exploring the Law-Morality Connection

00:03:10 - between law and morality. And he says, that's wrong. There's, there's no essential connection between law and morality. And, and I can prove that. He says, because look, I'll go out and I'll show you some examples of law. So he takes the, so say for example, the laws of Nazi Germany, or the apartheid laws of South Africa, or, the Jim Crow, the segregationist laws that existed in the Southern United States before the Civil Rights movement. He says, look, take the, have a look.
00:03:43 - So we can see that there is no essential connection between law and morality. Now, I, I think in a way that argument's fine, but the problem for me was that, you know, he, this argument takes the, takes the law for granted in the sense that he just says, look, just go out there and see there are these laws there, right? and I wanna say, yeah, but how did they get there? I mean, and when I say, how did they get there? I don't just mean, you know, how, how, what was the actual procedure for passing,
00:04:12 - I, I mean, what is it about human beings that makes us do these things? Why do we organize our societies in accordance with, these structures? we don't have to, we, you know, there are plenty of other species on this planet who are intelligence and so forth who don't do these things. So what is it about us that makes us do this? And what makes us capable of doing it? What, what, how are we able to do this? questions like this. What role is law playing in, in human life, and how does it play that role?
00:04:45 - interesting philosophical questions, and not that, the debates that, occur in mainstream jurisprudence. I personally, maybe it's just me, but personally, I don't find those debates very philosophically interesting. I think these issues that these questions are, are more, interesting to philosophy and then the kind of things that philosophers and other areas of philosophy would ask. so it seems to me we ought to be asking them in this, context as well. So that's all the negative stuff, you know, I wasn't happy
00:05:16 - And I, I, I, I wanted to change. And the positive thing is I just thought I had something to, to say about this. And it had been bouncing around in my head for a couple of years as I, as I said earlier, and, I, I was, I didn't actually want to write the book. I was, I was working on another book that was taking me a long time to get this, a book I've sub subsequently published. And I, I had taken me years to write this thing, and, and it's kind of stuck. And I, I wanted to concentrate on that, but I had these ideas in my head and I thought, I, look until I get these ideas about
00:05:50 - with my other projects. So I sat down and I, I wrote the book, and I wrote the whole book in six weeks. Now, that's the first draft. Then I had to spend a long time reading more stuff and revising and all of that. But it was just, it was as clogged in my head, and I just had to get it, had to get it out. And I hope that it's something that might help to refocus the debate, because one of the things that, that lots of people who who study the subject will say is that they, it, the subject doesn't really help them understand law.

Philosophy of Law: Bridging Disconnection Issues

00:06:21 - that you hear from students and so on. You know, they, they might be interested in some of the debates in jurisprudence, but they, they hasn't really helped them understand law or helped them with their other legal subjects and so on. And I think that's a sign that something has gone wrong. it's a, it's a sign that the philosophy of law has become disconnected with the thing that it's meant to be examining. So, so anyway, that's the, the idea is that I'm hopefully made some kind of contribution towards reversing that.
00:06:55 - for a long time at the, at the University of California at Berkeley. And he's famous for developing a, a theory, well, he started off in the philosophy of language, and then he moved into the philosophy of mind and then into the philosophy of society. no, I, I've actually never met, John Circle. I, I, he's a very big influence on my work because, his work is so useful for the project
00:07:23 - and maybe that's what I should talk about, why, how the influence, but what kind of, what, why his influence was so important to me. so I, I've said that, mainstream jurisprudence, my claim is that mainstream jurisprudence just takes the law for granted. And, and what we really need, I, I suggest is a theory that helps us to work out things like, you know, where the law comes from. What is it about us that makes us create law,
00:07:56 - what impact it has on us that makes us obey it, and, and so on. And to do that, if, if we're gonna provide a theory of that, we can't just start with, with examples of law as Hart does in the concept of law. we've gotta investigate the kinds of beings that we are. We've gotta have an investigation into the kind of creatures that we are. So, in other words, we've got our starting place can't be the philosophy of law itself.
00:08:26 - and this would, what I found very useful in sales workers is you can start here with a philosophy of mind. He is a, the, i, it is called intentionality. That's just a piece of philosophical jargon. But what that's really about is how the mind relates to the world. So it is got a theory about how the mind relates to the world. And then he connects this with a theory of language. So he, he talks about how, how we use language to refer to and change the world.
00:08:56 - how we construct society on the basis of our intentionality and language. and then, all I needed to do with that foundation in place was just explain the last little bit, which is what, you know, once we've got society, what little, you know, I need to explain the little corner of society. That's, that's law. So that was the project, really not, not just to start with law and, you know, engage in debates about the nature of law between,

Understanding Declarations in Legal Contexts

00:09:29 - how law comes into human life, in the first place. And a full picture, right? That's, that's the idea. To try and present a, a, a full, a full picture. and the, the key elements of this picture is this, I mean, obviously it's a very complex story, and it is not something that presents in, in a few minutes, but I, I think I can present in a, in a very short time present, really the key aspect of the,
00:10:03 - of a, of a, of a declaration. so, so when we are thinking of declarations, we are thinking of utterances to use the jargon speech acts that are very curious. They're a very curious kind of thing. So let me just give you a couple of examples of, of them. So one is you imagine you're at a meeting, and meetings tend to be, the, the meetings I go
00:10:31 - But if you imagine you're at a, a formal meeting, and the whoever's the chairperson of that meeting says at the end of the meeting, the meeting is adjourned. Right? Or, or another example, I've got a a $5, note here. And on, on the note is, is written, this note is legal tender for $5. Okay? This, there's another, now on the face of it, these utterances, these speech acts, the meeting is adjourned. And this note is legal tender for $5.
00:11:02 - but they, they look like they are assertions about the way the world is. You know, like it, they, they have a very similar grammatical structure to my, my claim. It's cloudy today. I'm just looking out the window, and I can see it's, it's not a very nice day to day here in New Zealand. It's, it's quite cloudy. So they look like they have the same structure, the same logical structure, but they don't. and one way to tell this is that, if, if you, if I say that it's cloudy today, you can ask me how,
00:11:35 - And, and I can say, I can give you an answer. I can say, well, I'm looking out the window and I can see there's clear, there's no sun. I can't see any blue sky at all. It's cloudy. So you can ask me for a justification for what I'm saying, and I can give you, I can give you an answer, and that's perfectly in order. But in these other, the two cases that I gave earlier, you can't do That. So if the chair of the meeting says the meeting is adjourned, and you said, how do you know you've missed the point, you've missed the points of the utterance, right?
00:12:05 - It looks like it's a statement about the world, but it isn't. It's something else. It's something very curious. And similarly, with, with this, you know, this note is legal tender for $5. If I asked, well, how did they, you know, when they wrote the, on this, you know, stamp this on it, the Reserve Bank printed this on the, this piece of plastic. How did they know that this note was legal tender for $5? Did they do some investigation? You know, did they hire some scientists to do some? No, that's not the point. That's not, it's not a statement like that.

The Magic of Declarations in Society

00:12:37 - There's a certain magic in these things, in these declarations. We do something that's, that's, very odd. and actually one of IL's favorite sayings is that a, a philosopher is someone who allows themself to be astonished by things that ordinary saying people just take for granted. And of course, it's true that we just take this for granted. But there is something really astonishing about what happens here. We have this little trick that we use,
00:13:07 - we say something is true, and in by virtue of saying it, we make it true, right? There's a kind of magic in this. We say that something's true, and in saying it, we make it true. So when the chair of the meeting says the meeting is adjourned, that makes that adjourns the meeting, right? That makes it true that the meeting is adjourned. So the, the on the face of it,
00:13:38 - but it's not, it's a state. It's a, it's an utterance that makes the state the content of the utterance true, right? There's a magic in this. It's like at the, you know, for example, at the beginning of the, of, of Genesis in the Bible where, so God said, let there be light, and there was light, right? So God said, God made an utterance, right? And God said, let there be light, then bang, there was light. Now, we, of course, we can't do that with physical things. We can't bring physical reality into existence,
00:14:10 - this astonishing, I, you know, astonishing way, I mean, what makes this legal tender for $5 is that these people at the Reserve Bank said that this is legal tender for $5. Okay? So there is this magic that's involved, and this, so this is the theory about how we create society. We use, now we do it in all the detail is different between all the different, different social institutions and so on. But the idea is that there's always the same logical structure.
00:14:41 - where we say something is true, and we make it true by saying, that it's true. And, and you know, there's, as I say, there's a, there's a ma there's a real magic in this that, that we, we get away with, right? Because we convince other people to go along with it, okay? And that, that's the, I, that's the, the jargon for that is collective recognition. We, we get, we get people to go along with it. They might not like it. They may like it, but they may not like it. They may approve it, they may not approve of it,
00:15:15 - So I start behaving in a certain way, given that we've done this. And the, so the idea here is that we, use another little piece of jargon. We create what are called status functions in these ways. So a status function is a function that a person or something has that doesn't relate to the physical construction of that thing. So that, that this is $5, it's got nothing to do with what it's made of.

The Nature of Law and Social Declarations

00:15:42 - of a certain plastic or it's polymer. It's got nothing that's got nothing to do with why it's $5. The reason I'm a professor, it's got nothing to do with the molecules that make up my body. It's because somebody made a declaration that said I was a professor, and everyone goes along with it, right? And that's the idea, is that's what we do with law, right? So where does the law come from? Where did Nazi law come from? Where did, the law of a party come from? Someone made a declaration, right?
00:16:15 - It's just the same as this. It's just the same as the meeting is adjourned. It's just the same as, I pronounce your husband and wife. It's just the same as war is here by declared. It's just the same as we are friends now, right? But there's all these social institutions that we create, we create in this way, and law is just one of them. No, nothing special. The reason that it's important to the project is it enabled me to, to talk, to present a, the, the theory that I've just, explained.
00:16:46 - all this work about declarations and, speech acts and how it all connects together. That's all found in the work of sur. And, and really all I'm doing is taking the conclusions that he came to and applying it to law. And a key feature of that account is that, law turns out on this theory to just be an ordinary part of society. See, philosophers of law have a tendency to talk about law
00:17:17 - different than everything else. Nothing like other social institutions. And I think that's wrong. I think law is actually quite, you know, it's quite a lot like other social institutions. Yeah, there are some differences, but it's not a radically unique separate thing. It's a very, it's very similar to lots of other social institutions. And the real, the job of philosophy is to bring that out because we make it and we, we, sustain it in the, a very similar way that we make
00:17:50 - And that's really the insight. I think it's that we don't need a special theory of law in order to understand it. 'cause law's not all that special in interpretation is really, I think where all of this stuff comes, comes together. So there's a debate in the, philosophy of law between two, you know, I said before that there were gonna be chapter headings and, and textbooks with these names. And one of the names will be Ronald Dawkin, and another name might be Joseph Raz. These are two very big figures in the philosophy of law.
00:18:25 - we have to take into account social morality. So whenever we're interpreting law, we have to take social morality into account. And, RA's view is, no, that's not correct. Okay? Sometimes we might have to do that, but in the vast or in at least many cases, we don't have to. And his argument for this is to say, look, often it's the case that the meaning of the law is clear. It's obvious what the law means.

Interpreting Law: Morality's Role Explained

00:18:54 - to be any interpretation done. Okay? And that's a debate that rages in the philosophy of law at the moment. Now, my view about this is that RA's view can't be right because, and this has got nothing to do with law in in particular, it's because we interpret everything, and we always interpret things with morality in mind. And there's nothing special about law in this regard.
00:19:24 - I produce a whole lot of examples that are designed to, to show this. But let's, let's just take a simple case. Let's just say, I say, I'm late for work. But that looks like a, it just incidentally, I think it always helps to take things out of the legal context. The the law makes things co the law and lawyers make things complicated, right? And so, and, and so if, if you can take examples out of the legal context, I think they often get much easier to deal with.
00:19:56 - and all the subjects that they do. So just take, take an example of don't think of a law. Think, just think of a statement like, I'm late for work. We, if I said that, we, we wouldn't have any difficulty understanding that. So RAs says that we are not interpreting, the utterance, but it seems to me that that's, that's not right, because strictly in terms of the literal meaning of the words in the sentence, there are all sorts of other interpretations that we could produce of the statement.
00:20:27 - but, but we don't, like, for example, so I'm late for work. Well, you know that I'm late. That could mean I'm dead, right? I'm late for work, I'm dead, so I'm not going to work 'cause I'm dead. But we know it doesn't mean that, right? Or it could be work could be interpreted in the sense that physicists use it, you know, sort of the amount of energy required to move and not, you know, that, but you know that that's not what it means. It means employment, and so on and so on. And you know that when I'm talking about going to work, I'm going to, get, get the car or a bus or something.
00:21:01 - and so on and so on and so on. There are all of these, possible in terms of the literal meaning of the words of the sentence. There are all of these possible interpretations that are available that we just, we don't even think of. Now, this connects with a really important idea that the jargon for this is intentionality rises to the level of the background skill. That's just a horrible piece of jargon. But what it means is that to be skilled at something,
00:21:30 - but it usually means that you are able to do that thing without thinking, right? So think about, you know, walking or, or driving or if skiing or if, you know, I mean, skiing's a quite, i i is my favorite one because I learned to ski when I was about 30, 35 or something. And I remember what it was like, it was hard, right? I had to think, you know, weight on that leg, you know, I had to think really, really hard about that. But now I just do it. I just do it, right? And I'm not thinking weight on that leg unless, unless I notice that I'm skiing badly,

Understanding Interpretation Through Skill and Art

00:22:01 - Right? So that's what it's like to develop a skill. You get to a position where you don't have to think about it anymore. Now, when it comes to language, we are very skilled at that, right? And so we don't notice a lot of what's going on. So what I want to say about, about the interpretation of e even just simple sentences like, you know, I'm late for work, is that there is a lot of interpreting that's going on there. It's just that we are very skilled at it, and so we don't have to think about it. but there are certain situations
00:22:33 - you know, can notice this. so for ex, you know, for example, when you learn a new skill, and, but my favorite example of of this is, is artworks. Because often the artist is playing with this fact, it's it presenting the stuff in a way that means that we become aware of what we are normally unaware of. and I think a really good example of this is the, the, the painting, the, a picture of which I, I sent
00:23:06 - the, the Tabor painting that it actually has two names. So, it has, well, they're two nicknames. Neither of the names were given to the painting by, by tush, but one name is the, the Gallant, conversation. And the other is the paternal admonition. And, the, so I just, as I said, I'm just looking at the, the painting now, it's, there's a, two people sitting down, woman's drinking some wine from a glass.
00:23:40 - a very fancy dress. and the question is, what's going on in this painting? Now, when Victorians looked at the painting, they, they thought that this was a scene happening in a family home. The two people sitting down are the husband and wife. And the suggestion is that the, that, that, that, that's their daughter standing in front of them. And the suggestion is that she's done something wrong. And, and the, the husband is her father is, you know,
00:24:09 - which is why it's called the parental admonition. and you know, her mother's a bit embarrassed about the fact that she's been told off and is keeping her eyes averted because she's, you know, she, she doesn't want to embarrassed her, her daughter and, and so on. Okay? Now, when I look at this painting, I see something completely different. There are things about this painting that, that interpretation doesn't make any sense to me because I mean, things like the guy's wearing a sword. I mean, why is he, if he's at home with his family,
00:24:42 - That's a very odd thing to be wearing. I mean, there are lots of things, but, but he's two things in particular. He's, he, he can't see this. It's very hard to see, but he's got a coin in his hand. He is, he's his, his hand's been held up, but he's held holding up a coin. So why is he doing that? Right? The other thing is that that red sort of square object in the background that you might not notice at first. What's that? That's a bed. It's a four post a bed.

Interpreting Art Through Moral Perspectives

00:25:12 - once you start seeing this, that that interpretation of the painting starts unraveling to me. This is a scene in a brothel, and what's happening is, the, the woman with the wine glasses, the madam o obviously the, the, the girl's closer to us as a prostitute, and they're the, they're negotiating the price for her services. Now, the, now why, why is this p why is this so important to me? It's important to me because what we see here is the way in which our moral ideas impact our interpretation of things, right?
00:25:44 - because of their sort of moral sensibilities, they just couldn't, it's not, well, couldn't is too strong a word, but it was very difficult for them to see it as a scene in a brothel, because that's just not the way that they were oriented to see, they were oriented to see it as if you like innocent, right? Whereas we, we have a different moral sensibility now, right? So when we look at the same painting, we just see things that they didn't see. And there's a sense in which that's literally true, right? I mean, obviously we see,
00:26:17 - It's not that any that's changed, but we see a bed that they didn't see, right? We see a coin that they don't notice, right? And maybe a hundred years from now, people will see a whole lot of stuff in it that we are not seeing now because of the way our perspective, influences our interpretation. And so what I wanna say to res is that, you know, your position that we interpret law without morality in mind can't be, right? Because we interpret everything with morality in mind.
00:26:50 - It's not just something about law, right? So, and it's, it's, this is just how we interpret everything. Now, that's, so that's my criticism of RAs. My criticism of, of, Dawkin would be that Dawkin presents his discovery, and I think it is a discovery that we interpret law with morality in mind, but he presents that discovery as a discovery about law as something unique to law. And my response would be to say, there's nothing unique to law. This is just the way human beings are.
00:27:21 - And so I, and I think that if, if this view is right, if this view I'm, propounding is right, then there's something just deeply wrong about the way philosophers of law think about law, and they have to go back and relearn, or all this philosophy, this non-legal philosophy that that needs to be learned. And there's lots of stuff, that that could be said here. There's just huge debates that are going on. But let, let me talk about what I think is what,
00:27:51 - So, so the big divide in the philosophy of law is between people who think that there is an essential connection between law and morality, and people who don't think there is an essential connection between law and morality. And that's the, the jargon that's normally used there is that's natural lawyers on the one side, natural law theists on the one side who think there is an essential connection and legal ISTs who think that there isn't a natural connection. and you know, my view is they're both right,

Conflict Between Natural Law and Positivism

00:28:25 - They're both right, but they're both wrong to dis to disagree with each other. But now, in fairness to the natural law theorists, the natural law theorists often say, look, we're not really disagreeing, you know, and, it's just the positivists keep picking a fight with us. And I think that's that's right. But let me just give you, let me give you an example, which I think really brings the issue to the fore. So let's just imagine that a case is heard by the Supreme Court and that the Supreme Court says in, in this case,
00:28:59 - X is the law, what, whatever it is, X is the law. Okay? Okay, fine. So we will say, okay, from now on, X is the law, okay? But then imagine two years later, the same court may be different. Judges comes out and says, you know what? Case one is wrongly decided, case one got the law wrong. Y is the law not X. Okay? Now, this doesn't happen very often, but it does happen, right?
00:29:30 - for example, where the, the House of Lords, when it was still the highest court, you know, before the creation of this UK Supreme Court had said this. So, you know, it doesn't happen often, but it does happen. Okay? Now, the, so, so case one court says X is the law case two, court says, case one was wrongly decided Y is the law. Now what are we just say, what was the law between case one and case two?
00:30:00 - when the court in case two says that case one was wrongly decided, they're not saying we think we need to change the law because situations changed, but you know, the new policy, whatever, they, no, that's not what they're saying. They're saying that court in case one made a made a legal mistake, right? They got the law wrong. Okay, so what are we gonna say about this? What, what should we say was the law between case one
00:30:29 - Now, the positivists want to say the law was X because that's what the, the Supreme Court in that jurisdiction had said in, in case one, that was the settled, that's what to, to use the jargon. That's what the settled legal materials said at the time. So the law is X. and that seems like a really sensible thing to say, right? I mean, if you, if you'd gone to a lawyer and asked for some legal advice during that period,
00:31:03 - It seems a really sensible thing to say. It seems right. The problem is, it seems inconsistent with what the later decision of the court and case two is saying, because that court is saying that X was never the law. They're saying that X was a mistake, it got it misunderstood the law, it got the law wrong. And added to this is the problem that, in nearly all jurisdictions, whether they're common law, civil law jurisdictions,

Exploring Law's Dual Nature: Force and Reason

00:31:34 - So it doesn't just apply from case two onwards. It goes, it, it, it, the, the theory is it sort of declares what the law always was. So it applies backwards into the past as well. Okay? So on the one hand, it seems really sensible to say that X was the law between case one and two, but on the other hand, it's, it doesn't, it doesn't seem right. And so the natural lawyers tend to want to say no, the, and Ronald Dawkin in particular would want to say
00:32:05 - and case two was y it's just that we all wrongly thought it was X. Okay? And that on the what the, the, now you have, but now you have the opposite problem. It seems like that that's sensible in terms of understanding what the court said in case two. But then what do you do about the fact that if you'd gone to a lawyer and asked them for advice, they would've told you the law is X. What do we just say about this? And so this is one of the debates that goes on in, in mainstream jurisprudence.
00:32:39 - And this is an argument that they shouldn't be having. And, and I think a lot of the debates that go on in the philosophy of law are just sort of wasted ink and wa wasted breath as it were. Because if they, if, if they could step back and, and see the law from a broader perspective, they would see that there are senses in which both sides are correct. So what I want to say about this is that the, there's a kind of duality in law when the law addresses us.
00:33:09 - It, it addresses us as a sort of form of coercion. It, it addresses us as a form of force. It says, look, you have to do this whether you want to or not, or you're not allowed to do it, even if you want to. And that's, that, that's settled. We, we are telling you how you have to behave. It's, it's, it's coercion. Law is coercion, but there's a different sense of law where it addresses us as rational beings. So it gives us reasons. And this is particularly important in judgments.
00:33:40 - they can't just say you lose, you win. They have to give reasons why that person wins and that person loses. And so the idea here is, I think it was Roscoe pound who, who an American jurist who once said that the most important person in court is the party who's going to lose, because the job of the court is to explain to that person why that person is going to lose. Because o otherwise it's just naked force. It's just coercion. And, and now of course, that person might not listen.
00:34:11 - And, but in principle, at least you've gotta be able to explain to that person why they, why they lose. Now, the law has this dual nature, then it addresses us in terms of force and addresses us in, in terms of reason. And the positivists latch onto the force part of the law and build a theory on that. And, and the natural lawyers latch onto the rational part of the law and build a theory on that. But the truth is, it's both, right? And there's just this duality in law.

Understanding the Duality of Law

00:34:44 - 'cause there's that duality in us, right? We are both physical and rational beings, right? And the law is just reflecting this, it, it says do it or else in the or else is in the end a physical thing. It's gonna not put me in prison, take some of my stuff, right? That's the physical side of it. But it also addresses me as a rational person. We are going to do this because, and it gives me reasons, right? So there's just this duality in law.
00:35:29 - that duality, not just to take one side of it and build a theory on that and reject the position of the people who take the other side and build a theory on that. So there's a complexity in law that the job of theory is to reflect that complexity and not, not to try and simplify.

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