The Download of the Week is Is Bad Law Still Law? Is Bad Law Really Law? by Julie Dickson. Here is the abstract:
In
this article, I discuss various substantive and methodological issues
in jurisprudence, prompted by Neil MacCormick’s views in Part 4 of his
Institutions of Law. I begin by surveying some contemporary legal
theoretical views on whether bad law is still, or is really, law,
before moving on to compare John Finnis’ and Neil MacCormick’s views on
this question, and on related methodological issues. I attempt to
develop and begin to defend a position wherein although it is necessary
to understand law’s aims, and the values which it ought to realise in
order properly to understand its nature, the failure to achieve those
aims or to realise those values does not thereby render something less
than fully law.
And from the paper:
Finnis and MacCormick strongly support the thesis that law has a moral point. They also
characterise that point in the same terms: the realization of justice and the common good. If it is true that
law has a moral point or aim, what follows regarding how we should go about understanding it? Those
aspects of Finnis’ and MacCormick’s views discussed thus far can be cast in terms of a methodological
insight that we must understand law in a way which pays adequate attention to law’s aims and to those
values it ought to realise. MacCormick’s position brings this out very clearly in his discussion of law’s
implicit aspiration to justice.54 His view appears to be that because law necessarily claims to realise a
certain conception of justice, that hence, in order properly to understand it, we must understand the
nature of that claim, what it would be for law to make good on it, and must understand law as something
which, by its nature, has a distinctive moral task that it ought to perform. In my view this is very
plausible: if it is part of the nature of something that it claims to serve a certain point or purpose, and
that we ought to view it as having a certain task to perform, then in order properly to understand it
would seem that we must understand that claim and what it would be for the thing in question to make
good on it, and to successfully perform the task that it ought to. As an analogy: some would argue that
the Oxford tutorial system has a distinctive educational point or purpose, perhaps to foster excellence
and independence of mind in learning, through providing students with discussion-based, individuallytailored
expert teaching focused on the student’s own written work and oral contributions. However
much experience may have taught us that actual tutorials do not in fact always fulfil their purpose or
realise the values they are supposed to, we would miss something important about the Oxford tutorial
system if we failed to understand what it claims to be, what its point or aim is, and what values it ought
to realise. Likewise, if, by its nature, law has a moral point or task, and ought to realise some distinctive
value or values, then in order properly to understand it, we must seek to understand that task and those
values, and understand that they set the standard against which law ought to be judged.This methodological insight instructs legal theorists seeking to understand the nature of law to
direct their attention not merely towards what law is, but also to what law aims to be and ought to be,
and to those standards by which it should be judged. It asks us to take seriously the possibility that it is part of law’s nature that it ought to perform a certain moral task, and to realise a certain value or values,
and that hence, if we wish to understand the nature of law, we must seek to identify and understand that
task and those values.55If law has a moral task to perform such that legal theorists should seek to understand that task,
and to understand those values law ought to realise, does this point support the conclusion that purported
instances of law which do not perform that task and do not realise those values are not, or are not really,
law at all? On the face of it, the answer would appear to be no. This is because the methodological
insight that we should pay adequate attention to law’s point or aim, and to the values it ought to realise
concerns a need adequately to understand law’s objectives, and what law ought to be, rather than what it
must be in order to be law. Of course, if Finnis and MacCormick are correct in those aspects of their
views discussed above, then they are in a sense drawing attention to something that law must be in order
to be law: it must be something which has the aim of realising justice and the common good, and it must
be something which is to be judged according to how well it succeeds in so doing. It also seems
plausible that law must be capable in principle of succeeding in achieving its aim and realising those
values it ought to, as it would make little sense to understand and judge something in terms of a standard
which it was incapable in principle of ever attaining. However, none of these things that law ‘must’ be in
order to be law supports the conclusion that if law does not successfully achieve its aims or realise those
values it ought to, then it is not really or fully law. On this view, failing to have the relevant point or aim
and/or failing to be the kind of thing which in principle is capable of achieving it and which hence can
sensibly be judged according to whether it does so would seem to render something not law, but failing
actually to achieve that point or aim does not seem to, because the essential property of law in this case
is not that law does realise certain values, but that it aims to, and that it ought to. The thesis that law has
a moral point, and the methodological insight that we must try adequately to understand that point, and
to understand the values law ought to realise, thus does not appear to support the conclusion that law
which fails to realise that point, and fails to instantiate those values, is not, or is not really, law at all.56
Highly recommended.