University of Transnational Business Law

Normative and Analytic Jurisprudence

by Arthur Ripstein


Normative jurisprudence seeks to understand the moral basis for the law: what moral factors properly underlie the law, and how should they shape it? The first part of this entry characterizes the standard distinction between questions about what law is and questions about what it ought to be. The second part considers two alternative ways of understanding how morality could be more closely integrated with law. These different views turn on different conceptions not only of law, but also of morality.
I. Normative and Analytic Jurisprudence: Austin’s Distinction

The distinction between normative and analytic jurisprudence originates with 19th-century English legal philosopher John Austin. As Austin conceives the distinction, analytical jurisprudence is the study of the concept or nature of law, considered in its most general and abstract level. Normative jurisprudence works with the already determined concept of law, and asks what the law should be, considering whether particular areas of law or doctrine are as they should be. On its face, the distinction has much to recommend it. Much philosophical writing about such topics as the moral limits of the criminal law, the justification of punishment, the appropriate scope of judicial review of legislation and administrative action, and the normative basis of property or contract law thus falls within normative jurisprudence as Austin conceives it. So, too, do questions about the obligation to obey the law.

Austin’s way of drawing the distinction is conceptually and normatively innocent in the abstract: if you want to know what the law on some matter is in a given jurisdiction, you need to do something other than figure out what the law should be; conversely, to figure out what the law should be, you need to do something other than faithfully report what it is. This innocent version of the distinction needs to be separated out from several other ideas, also crucial to Austin's approach. The most significant of these is Austin's view of the nature of morality. As a utilitarian, Austin supposed that questions of right action are exclusively concerned with consequences; the concept of a rule is not an essential part of it. Rules could be analyzed as commands issued by a superior so as to bring about desirable consequences. (Austin even extended this analysis to define commands.) Second, Austin’s conception of morality supposes that the demands of morality in a given situation are fully determinate, even if, in light of insufficient factual knowledge about the situation, they remain unknown. More generally, the Austinian picture rests on the thought that normative jurisprudence is just the study of what the law should be, where law is conceived broadly as a tool for bringing people into compliance with their moral obligations.

Although utilitarianism no longer occupies as central a place in moral and political philosophy as it once did, and the command theory has largely disappeared from analytical jurisprudence, the residues of each have continued to shape the ways in which both the explanation and justification of legal rules, doctrines, and practices are pursued. Many who reject utilitarianism nonetheless still accept Austin's belief that no specifically legal concepts properly figure in the characterization of what the law should be. Instead, they conceive of law as a tool for achieving a moral outcome that does not require any sort of reference to legal ideas.

This Austinian picture of normative jurisprudence can be found even in many broadly speaking "deontological" approaches to legal issues that understood morality in terms of rules. This approach sometimes appears in retributivist accounts of punishment, where it is argued that the law should be concerned to see to it that the wicked suffer in proportion to their wickedness. Some libertarian writing about property rights has a similar structure, arguing that the state should respect property rights that can be understood to hold entirely independently of the existence of positive law. So too does the idea that the basic moral imperative for law is to require people to internalize all negative externalities of their actions and entitle them to internalize all positive ones. These rule-focused approaches retain crucial elements of the Austinian approach, by supposing that morality is complete without law, and that law stands in a purely causal relationship to morally desirable outcomes, whether they be the promotion of happiness, economic efficiency, or desert.

The same could be said of many debates about judicial review of legislation, or the limits of freedom of expression. Disagreements are framed in terms of the way society should ideally be – is judicial review moral or less democratic, is the purpose of freedom of expression to enrich public debate, or to allow each person to do as he or she wishes? Should contract law be brought more fully into agreement with the morality of promising? Does the role of luck render tort damages morally irrational? This focus on what the law should be makes normative jurisprudence look like a special branch of applied ethics. Such questions are often supplemented by further questions about the ability of various institutions to do various jobs: suppose we want to protect individual rights, are courts or legislatures likely to do a better job?

From this perspective, the fact that the questions concern the structure of a legal system enters the analysis only indirectly, by way of structural concerns about the ability of ordinary citizens to know what the law requires in particular circumstances, or the competence of officials such as police officers and courts to bring moral factors to bear on particular cases.
II. Alternatives to Austin's formulation of the distinction

There are two available strategies for blunting Austin's sharp distinction between analytical and normative jurisprudence. The first (though more recent) of these can be found in the work of Ronald Dworkin, who argues that we cannot know what the law requires in a particular case without considering what it ought to be. On Dworkin's view, the posited aspects of the law, such as statutes and past judicial opinions, need to be interpreted in terms of the best moral account that would justify them as official acts that justify the more general use of coercive power against citizens. That justification, in turn, focuses on what would justify the legal system as a whole, rather than the specific official act that is being interpreted. On this view, the central question of analytical jurisprudence, "what is law?" does not receive a general answer, but only a method for generating particular ones: the law on any question is whatever the morally best interpretation of official acts and the exercise of coercive power says it is. Dworkin thus reject Austin's claim that the law in the jurisdiction can be identified through a series of purely factual, historical inquiries, in favor of the claim that the theory of law is always a normative theory.

Although Dworkin's conception of the proper approach to legal interpretation draws on normative theory, and the normative theory he defends is adamantly non-utilitarian, his conception of normative theory bears one important similarity to Austin's. By starting with abstract concepts such as equality, and trying to develop the best interpretation of them through first-order moral argument, Dworkin’s own development of his interpretive approach conceives of political morality in a way that makes only incidental reference to legal institutions. In his treatment of private law disputes, such as those involving wills, accidental injuries, and competing uses of space, Dworkin understands the role of legal rules as one of approximating a moral result that is articulated in terms of a very different vocabulary of competitive bidding in an impartial auction through which resources are transferred to their most valued uses. Thus the normative theory against which law is evaluated and interpreted takes makes no reference to institutions. As for Austin, so for Dworkin institutions enter normative jurisprudence as effective tools which those exercising power should use achieve their moral purposes. The role of those institutions, then, is largely to coordinate conduct to bring about various goods, whether happiness, social equality, or a proper sense of community.

A second alternative model of normative jurisprudence incorporates normative concepts in its conception of law from a different direction. For the natural law tradition, stretching from Aristotle through Aquinas to very different versions in each of Blackstone, Kant, and Hegel, the underlying morality to which law should give effect is structured in the ways that parallel the broad structure of modern Western legal systems, including the divisions between public law and private law, and the traditional categories of private law. That morality is taken to be normatively defensible in more or less the terms on which it presents itself. The morality of interpersonal interaction includes such familiar requirements include taking care not to injure other people, keeping off their property, honoring your contracts, and avoiding self-dealing while administering the affairs of others, as well as making up any wrongs you have committed. Such requirements both form the abstract structure of private law and, at the same time, are familiar to ordinary moral thought, even though there may be widespread disagreement, both among ordinary people and theorists in the natural law tradition, with respect to their fundamental moral basis. The rules are, at the same time, too abstract to provide guidance in cases of dispute. Because these legal concepts are highly abstract, normative jurisprudence understood in this way will not generate detailed recommendations to every question about what the law should be. Instead, its distinctively philosophical task is to articulate the formal structures within which legal questions are framed. On the traditional natural law view, positive law serves to make these familiar requirements sufficiently determinate and impartial in their application, so that they can in fact provide adequate guidance to action.

The natural law tradition is hardly monolithic; for Aristotle, Aquinas, and Finnis the basic negative prohibitions of law and morality are generated in relation to the goods most basic to practical reason; for some later thinkers within this same broad tradition, they are structured by the systematic requirements of human freedom. For still others, such as Blackstone, no real question about their grounding even arises. Writers in this broad tradition also disagree about the relation between moral requirements and theology. These differences are fundamentally important to debates within the natural law tradition, but incidental to the basic issue here, because all sides agree that rules are not an attempt to approximate or achieve something that can be understood without reference to them.  To the contrary, although they disagree about how rules are ultimately grounded, writers in this tradition regard it as a conceptual truth that rules are the only ways in which persons can act in accordance with whatever values ground them. Although some writing in the utilitarian tradition might suppose that an account that does not answer every normative question is incomplete, or merely a crude approximation of some account that does, that supposition is not an argument. To the contrary, it is equivalent to the claim that law is merely a tool for achieving a moral result that can be specified without relevance to legal concepts. The natural tradition sees the rendering determinate of these highly abstract normative concepts as the task of positive law; natural law requires positive law to complete it.

The natural law view of normative jurisprudence rejects each of the Austinian residues: it supposes that morality is fundamentally rule-governed, that moral concepts require judgment to make them apply to particulars, and that legal concepts are morally basic. Without institutions, charged with applying familiar legal concepts, people could not live together on morally acceptable terms, because morality's demands would be indeterminate, and each would have no choice but to do what seemed right in his or her eyes.

At the same time, it preserves Austin's distinction between what the law is and what the law should be: without positive law, as laid down, by officials, morality is incomplete. The only way to know how morality has been completed in a given jurisdiction is by looking at the acts of those officials. Many of those official acts will be indifferent in relation to the requirements of morality, and some may be openly inconsistent with them. It is only by considering those acts that it is possible to find out what the law is. At a suitable level of abstraction, you can figure out what the law should be on a subject, without knowing what it is in a given jurisdiction. Abstract reflection on the relation, say, between property and contract might lead to a principled argument about what the law should be, or how it should change. What cannot be done, however, is reflect on what the law either is or should be without appeal to familiar juridical concepts.

The natural law approach is most developed in the context of private law, but a parallel strategy can be made to apply to public law. Although the natural law tradition is even more divided on this question than on the fundamental basis of private law, a single theme animates its approach: public legal rules are supposed to govern everyone, and govern the "vertical" relation between the state and individual citizens, rather than "horizontal" relations between private persons. The requirement that the state be even-handed, and that it restricts itself to public purposes – however these are properly understood – act as restrictions on the way in which any question of public law can be framed. Like the organizing categories of private law in the natural law tradition, these are highly abstract distinctions, which serve to frame questions, rather than to answer them in detail. Yet these abstract distinctions are not without content or force. The core ideas make sense of the ways in which wicked or corrupt legal systems seem to be not merely immoral, but a sort of perversion of the distinctive moral demands of legality. In order to answer more specific questions about such things as the proper way to characterize purposes as public, this framework of thought cannot avoid first-order moral argument. The distinctive feature of the natural law approach is not that it provides a template for answering everything, but rather that it provides the categories within which the questions make sense.
III. Conclusion

Legal philosophy is often divided into questions of analytical jurisprudence, concerned with the nature of law, and questions of normative jurisprudence, concerned with questions about what the law ought to be. This familiar distinction can be drawn in a number of different ways. These differ less in their attitudes towards the significance of morality for law – everyone agrees that law morally ought to conform to moral demands – but rather than their attitude towards the significance of law for morality, whether basic legal concepts are morally fundamental.
References

Aquinas, St. Thomas Summa Theologiae

Aristotle, Nicomachean Ethics trans. Ross, W.D., revised by J.O. Urmson. in The Complete Works of Aristotle, The Revised Oxford Translation, vol. 2, Jonathan Barnes, ed., Princeton: Princeton University Press, 1984

Austin, John, (1854/1995) The Province of Jurisprudence Determined reprinted, edited by Wilfred Rumble Cambridge: Cambridge University Press

Blackstone, William, 1765/1979 Commentaries on the Law of England, facsimile edition with introductions by Stanley N. Katz, University of Chicago Press

Dworkin, Ronald Law's Empire, Cambridge Massachusetts, Harvard University Press 1986

Finnis, John, 1998, Aquinas: Moral, Political and Legal Theory, Oxford: Oxford University Press

Finnis, John, 1980 Natural Law and Natural Rights Oxford: Oxford University Press

Kant, Immanuel, The Metaphysics of Morals Translated by Mary Gregor Cambridge: Cambridge University Press

Ripstein, Arthur Force and Freedom: Kant's Legal and Political Philosophy Cambridge Mass.: Harvard University Press
Keywords

Aquinas, Thomas; Austin, John; Blackstone, William; command theory of law; deontological theories of law; Dworkin, Ronald; Kant, Immanuel; legal positivism; natural law; private law; public law; Utilitarianism.