Legal theory identifies criminal and non-criminal groups with reference to a norm.
Law does not cover all normative questions like by what standard art should be judged or how you should act in any given situation. It cannot exhaustively cover evaluative philosophy.
Law deals with justice. What is unjust is not permitted, unlike with that which is just.
For something to be just means that it can be argumentatively justified.
Law is a normative standard, it guides men to just actions.
Specifically, law is a subset of inter-personal ethics as opposed to autistic ethics.
Law must be a subset of ethics, as it cannot be the case that someone should be the director when their direction is unjust as it is a contradiction.
Contradictions are false.
As law is a subset of ethics, there is no legal claim which is not also a moral claim. This could mean however that there are ethical claims which may not be legal claims.
Objective Law and its Critics
The Failure of Legal Polylogism
Law can be derived from the nature of argumentation as a human action.
Asserting the existence of multiple legal codes would be asserting that there are multiple differing logics.
Polylogism is the claim that there are multiple different logics.
Legal-polylogism is the claim that a number of different logics may be adopted within the argumentative justification of a system of property rights.
Legal codes must be incompatible in at least one respect in order to be different in the first place.
If multiple legal codes are incompatible, then they contradict each other.
Legal-polylogism asserts that all of the legal codes are valid despite being in contradiction.
The legal positivist view on law is that it is merely a description of how possessions are arranged. It does not comment on the just arrangement of those possessions.
Legal positivism claims that law is determined by might. If someone is overpowered in a conflict, all they can comment on is the fact that this individual was victorious.
The legal positivist thesis on law reduces it to being essentially meaningless.
Notions of rights having a source rather than being innate are indicative of the fallacy of primacy of consciousness.
Objective Law as a Science of Human Action
As legal polylogism is false, there must be a singular universal law.
Trying to argue anything pre-supposes the existence of a singular universal law.
Universal law is the normative foundation of argumentation.
Argumentation is a practical pre-condition for ascertaining the truth or validity of anything.
As true law is the foundation of argumentation, attempting to argue against it would require that you implicitly pre-suppose its validity whilst you explicitly proclaim it to be false. This results in a contradiction between the proposition and the act of proposing it.
Purposeful behaviour, unlike other forms of behaviour, involves a goal being intentionally aimed at.
An example of non-purposeful behaviour is the operation of an individuals digestive system. This is mechanistic behaviour and is not purposeful. The individual in question does not intend to digest, it just happens automatically.
Eating however would be an example of purposeful behaviour, the individual is actively choosing to eat food. The goal is consuming food, and it is being aimed at with intent.
Action involves an individual deliberately attempting to change the world into a more preferable state than it otherwise would be in if that action were not undertaken.
The choice of what the individual prefers in favour of the alternatives is the characteristic mark of an action.
For an action to be possible the individual must experience something that they do not like. They must also have an imagined state of the world that does not contain this unapproved aspect. Another thing they must have is the belief that the action will work to achieve the imagined state.
The result an individual wishes to achieve with an action is an end.
Individuals always act to remove uneasiness, with the end being the imagined state that does not contain the uneasiness.
For the individual to achieve their end, they must employ means.
Means are metaphysical entities that a human plans to employ/employs in order to achieve some end.
Action is an intentional intervention in the physical world performed by an individual using scarce means with the purpose of attaining a state that is preferable to that which would exist otherwise.
Mere behaviour consists of unintentional physical movements.
The pre-requisites for action are uneasiness, an imagined state without the uneasiness, and a belief that the action will bring about this state.
Legislation vs Discovery
There are two types of legal system: “judge found” law and “legislative” law.
Roman law and English common law are examples of judge found law.
Within Roman law and English common law legal principles are attained through judges attempting to provide justice in numerous individual cases. They may also be known as “case law” systems.
Modern civil law is an example of a legislative system. In this system arbitrary principles come from the legislative branch, who enshrine these principles into a civil code. Judges attempt to follow the legislation instead of trying to determine what is just.
Judges at least try to implement justice in a decentralised case law system as opposed to judges in a civil law system who do not.
The top-down legislative commandments found in civil law are arbitrary.
Because they are arbitrary they are not objective.
In a legislative system, a victim of an objective crime is unable to defend themselves using the objective principles of justice. Judges can only accidentally make the right call.
Under a legislative system the correct compensation for the victim also cannot be determined. It often may even ignore provision of compensation and simply tax the victim to extract funding for a one-size-fits-all punishment for the victim (e.g prison).
When law is determined through arbitrary fiat rather than objective principles of justice, it could potentially change at any time, creating uncertainty and making it difficult to even follow the law.
Even professional lawyers could not hope to keep up with the overbearing amount of legislation (thousands of pages).
This is not the case with found law, where coherence must be present between objective principles.
The role of a rational jurist is to explicate and discover objective legal standards.
The role of a judge is to apply the objective body of law to a given case.
The rational judge attempts to administer justice rather than following arbitrary decrees.