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Philosophy of Law and Security Law in Society Period 3WEEK 1
Lecture 1 – 4 January 2021
1. What and why?
Is philosophy yet another perspective on law and security?
• Yes: philosophy’s perspective builds on but is irreducible to the perspectives of law
and the (social) sciences. It is different and irreducible (building on knowledge).
• No: legal philosophy aspires to offer a framework to critically reflect upon underlying
conceptual and normative issues of legal and societal problems. Thus, philosophy
offers something different.
Why philosophy?
• Philosophy is of no practical use. It does not offer concrete solutions. People do not
go to philosophers when they have a problem. (unlike lawyers and scientists).
• What do philosophers do? Philosophers ask questions when lawyers and social
scientists present their answers. They try to tease out and critically assess underlying
assumptions. -> philosophers are important and has a role to play in academia.
2. Situating the course
Philosophy within LiS-Bachelor
• ‘Philosophy in context’: next to legal and social science courses. The context is the
knowledge that the students already have.
• Related to a specific theme: security and sustainability (2nd year).
• Fully embraces the Mixed Classroom. Please do bring your own perspective to the
discussions in the seminars.
Legal philosophy at VU Amsterdam
• Situated in the Global North: A Western perspective on law and philosophy.
• Acknowledgement of the existence and value of other traditions of philosophy, e.g.
African, Arabic, Chinese etc.
• The focus on values provides ways to compare with and connect to non-Western
traditions.
Two approaches in philosophy that we will address: (i) A modern and contemporary
perspective gives you the ‘conceptual tools’ to intervene in discussions on security ‘here’ and
‘now’. Be aware of ‘the tradition’: philosophy takes place in a historical context. (ii) A
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,Philosophy of Law and Security Law in Society Period 3
bottom-up approach. Cases show intertwinement of philosophical theories and legal and
societal practices. Philosophy is built on the question society asks itself.
2. The concept of law
Radbruch does this by aksing several questions. Three related questions:
• Why is there law?
– What is the purpose of legal norms? What is the purpose of a legal order?
Why do we need it?
• What is law? (more practical)
– How do you identify legal norms? How do we recognize law?
• How do we find law? (about interpretation, very important for people working with
the law)
– How do you interpret legal norms?
Three possible answers related to three values. Radbruch explains that there are three legal
values that together form the concept of law.
1. Legal certainty
To promote lasting relationships between citizens (horizontal level) and between
government and citizens (vertical level). Has to do with peace and procedures.
2. Justice
To promote freedom and equality in society. What is justice? Radbruch argues that
the most important understanding of justice is the equality and freedom in society. Has to do
with an ideal understanding of law. What people aspire to, but people can never achieve.
Different from legal certainty.
3. Expediency
To promote social welfare (in the broad sense). A less economic translation would be
purposiveness. The law always has a purpose, and that purpose comes from society. The
citizens from society choose politicians based on the different purposes that these politicians
promise to pursue.
Why is there law while emphasizing the value of expediency? Law is there first and foremost
to promote social welfare. Often ends up in economic meaning because we see welfare in
economic values (but does not have to be like this).
3. What is law?
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Answer 1.a: natural law theory - emphasis on justice.
Natural law embodies what is invariably good and just. Natural law is seen as higher than
human law (positive law). Human law is an elaboration of natural law according to time and
place. Also, natural law applies directly, regardless of human intervention. Moreover, an
unjust (human) law is not a valid law.
Answer 2: legal positivism - emphasis on legal certainty.
Positive law is law what is stated in a limited number of authoritative sources of law. It is
argued that the rules of positive law (lower rules) derived their validity from higher rules
(natural law). In positive law there is a conceptual separation between law and morality. As a
result, the judge must decide a case according to the (letter of the) law, not follow her own
subjective preference.
Answer 1.b. constructivism - emphasis on justice
The main ideas behind constructivism are: (i)There is more law than is stated in the sources
of law; underlying values, ideals and principles are also part of the applicable law. (ii) Law is
a dynamic phenomenon: the ideals of society unfold in the changing law. (iii) Judges are
actively involved in legal development; they interpret from the intent of rules and from
underlying principles. (iv) Judges do not practice political justice but rely on unwritten
principles and ideals that underlie the justice system itself.
Answer 3.a. legal pragmatism - emphasis on expediency.
The main ideas of legal pragmatism are: (i) Law is what you can predict from what judges do,
based on what they find useful to society in the circumstances of the case. (ii) The correct
decision is the one that ultimately yields the most happiness and the least amount of pain. (iii)
The judge must make an efficient decision in view of the needs and interests of society.
Answer 3.b. critical legal studies (CLS) - emphasis on expediency.
The main ideas of critical legal studies are: (i) Law is politics, i.e. the provisional outcome of
the ongoing battle between opposing ideologies. (ii) Skepticism about ‘correct decisions’,
since law is characterized by radical indeterminacy. (iii) The judge makes a political decision,
often protecting the interests of the status quo.
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Legal traditions
Natural law
The theory emphasizes the value of justice. It defines law what is good in justice. The notion
of nature is important as well. Nature does not change. It embodies the good and the just. It is
higher law, higher than human law (positive law). Human law is natural law according to
time and place. A natural law theorist would argue that natural law applies directly without
human intervention. Natural law can be a yardstick, measuring human law. A law against
natural law is not valid. Because something against nature is unjust. Natural theory is
connected to religion (it came up in the Middle Ages).
Constructivism
Constructivism has an emphasis on justice. It is a reaction to strict legal positivism. There is
more law than is stated in the sources of law: underlying values, ideals and principles are also
part of the applicable law. Law is a dynamic phenomenon: the ideals of society unfold in the
changing law. This also has consequences for what the judges should do: they are actively
involved in legal development. They are to interpret from the intent of rules and from
underlying principles, not merely from the letter of the law. More generally, judges do not
practice political justice, but rely on unwritten principles and ideals that underlie the justice
system itself. Therefore, when a legal positivist would criticize constructivism for its
uncertainty, that is not necessarily the case.
Thomas Hobbes
He wrote in the time of a civil war. At that time there was no security. He said the state
should be strong because the state should first and foremost should provide security and
safety for its citizens. The state is the supreme authority. Hobbs wanted to legitimize the
English state and wanted to explain the monopoly of violence. He argued that the state is the
only wone that can offer us security and safety.
Legal positivism
Linked to hierarchy. A constitution and different legal codes. Separation between law and
morality. The judge should solely apply the letter of the law and should not follow their
subjective knowledge. Because otherwise there would be no legal certainty. This is different
to natural law because natural law is never separate from morality.
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