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Dr. Christine James
Spring Capstone 2011
Philosophy of Law in Analytic and Continental Traditions
Victoria King
This paper is concerned with understanding the nature of law itself and the role justice
and a system of values plays with respect to law. The analytic tradition or positive law doctrine
proves useful in the attempt to obtain an understanding of the nature of law itself; that is, what
law is in the most literal sense. The theory of natural law is useful for understanding what role
morality and justice play within the framework of legal theory. However, both doctrines have
tended to exclude the other at face value, so a deconstructionist approach has proved the most
useful in the attempt to grasp the answers for which I have been searching, vigorously, in that it
seems to tie the theories together in a plausible manner. In addition to discovering the meaning
and nature of law, it seems even more useful to discover its purpose and application. That being
said, a useful issue to apply these theories to is the issue of corporate personhood. In this paper, I
shall attempt to first explore the different theories as mentioned above in order to obtain a sense
of what justice is and how law works, and secondly, I shall apply the theories to the issue of
corporate personhood, specifically focusing on its ties to political spending.
The theory of natural law generally implies that the concept of law cannot be completely
free of moral notions. Aquinas plays a central role in defining the concept of natural law.
According to him, a key element of natural law is the idea that it is naturally universally binding
and makes up the principles of practical reason (Aquinas, IaIIae 94, 4). It is an aspect of divine
providence, which determines eternal law, or the rational idea by which all creation is structured

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by God (Aquinas, IaIIae 91, 1). The aspect which determines our considering natural law as
“law” is that we, as rational beings, are able to comprehend the rule of God and freely act upon it
and be judged in accordance with this practical reason (Aquinas, IaIIae 91, 2). It is in this sense
that Aquinas rejects the Aristotelian view that there is no universal principle of right, (NE, II, 2,
259). Aquinas agrees with Aristotle in the allowance that certain situations may allow one to
forego the usual rules; however, certain acts are always necessarily wrong, such as killing, lying,
blasphemy, and seemingly anything that involves harming another in some form or fashion.
Thomas Hobbes is another natural law theorist. He begins from a subjectivist
consideration of the good. While this may seem at first to rule out natural law, he holds that
human beings have common needs that are paramount to human aims to the extent that the right
rules of rational conduct may be built around them (Leviathan, xv, ¶35). According to him, this
universal common good is the good of self-preservation (Leviathan, xiii, ¶14).
John Finnis is a more contemporary advocate of natural law. He explained that the
master rule of the doctrine of Aquinas was that of universal love (Finnis 1998, 126). Finnis
argues that it is morally wrong to intentionally attempt to destroy any instance of a basic good
(Finnis 1980, 118-123). This also entails no lying, no murder, and so on. Basically, “love thy
neighbor as thyself,” (Bible, King James version, Mark 12:31).
What all of these theories hold in common is the notion that there is a universal principle
of rational behavior, which allows us to know by means of our natural, rational judgment what is
basically right and what is basically wrong. Aquinas held that God, or the divine creator, created
us as inherently rational creatures with the ability to depict right from wrong. He held there to be
a universal principle of right conduct. Hobbes held that, while we do have individual choice and

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varying preferences, we share basic common desires. The most common desire we share is that
of self-preservation. Finnis believed the fundamental ethical understanding we naturally share is
to treat each others as we wish to be treated—with love—and to not intentionally commit any
acts of harm. All of these theories explain that moral notions are inherent in law.
From analytical jurisprudence, positive law attempts to explain the existence of law as
determinable by its social facts rather than its moral values. It does not say that they are
unimportant; it only claims that law is not determined by a system of morals. Law is merely a
system of what has been “posited,” or determined by a sovereign.
Analytical jurisprudence is an approach used to theorize about law. It highlights the
analysis of key concepts within law. This includes the concepts of “law,” “(legal) right,” “legal
duty,” and “legal validity,” (Stanford, Austin). John Austin sought to change the focus of
jurisprudence from what had then been the traditional view that it was a branch of moral or
political inquiry. This he did by introducing the philosophies of analytical jurisprudence and
legal positivism. Austin believed that these would allow law to be considered scientifically
rather than morally, (Austin, 1107-1108). He wanted to separate the “is” from the “ought” in
theorizing about law so he could have a morally neutral description of it. This is precisely what
his theory of legal positivism purports to do.
Legal positivism, or what it entails, was originally largely explained by Jeremy Bentham.
The description Bentham attributed to it was later taken by John Austin, who revised and
popularized it. According to the description of Austin in 1832, “the existence of law is one thing;
its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry,” (Austin, 157). In other words,

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regardless of the good or bad qualities of any of the laws that exist, they exist in themselves and
are to be obeyed by those who live the society that employs them.
According to the command theories of both Austin and Bentham, law takes place within
large societies who have a sovereign, that is, a person or group with supreme power. The
populace obeys the sovereign while the sovereign does not have to obey anyone. The sovereign
dictates commands to its populace, and these commands are laws. When laws are not followed,
they are backed up by threat of force or sanction, (Austin, 88). In other words, whoever breaks
the law must pay the penalty, providing they get caught.
Austin advocated utilitarianism in the sense of “rule utilitarianism,” in which the focus of
analysis is in the utility of “classes of action” rather than that of particular deeds (Austin, 42). Put
differently, “rule utilitarianism” is a type of utilitarianism that deems actions moral when they
conform to rules leading to the greatest collective good. In this sense, the suitability of a rule is
determined by the amount of good it produces when obeyed. Here, it is easy to recognize a
resemblance to the utilitarian proposition of Bentham concerning the greatest good for the
greatest number of people as being a justifiable end of government (Bentham, notes 6, 9).
Now let us cover some of the criticisms of the theory of legal positivism. Most of these
criticisms come from H.L.A. Hart. Hart points out a few discrepancies in the theory of legal
positivism which Austin overlooks. Concerning the command theory of law, first, Hart claims
that the role Austin claims the sovereign plays is only applicable to a monarch and not a
legislature with changing membership, (Hart, 603). Additionally, Austin claims that a sovereign
rules by force of law and is habitually obeyed by its citizens without obeying them in return.
However, Hart rejects this with the claim that the sovereign does actually have to obey its

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citizens to the extent that the sovereign has to confer with them in order to remain in power. If
this is the case, then the citizens in a society have a certain amount of power or social pull over
the sovereign. Therefore, the sovereign is not completely free from having to obey the rules,
(Hart, 603). Another issue Hart claims that Austin fails to recognize is that certain rules do not
apply as being restrictions on freedom that are maintained by the threat of force or sanction,
(604). Individuals are entitled by law to make contracts, wills, and trusts with others, enabling
them to control or manipulate their legal relations with others. These laws, Hart argues, are not
made to command, but rather provide a way from within the law for individuals to exercise these
powers, or to assert these rights, as they please.
The next argument Hart gives is a bit more complex. Hart claims that Austin overlooks
secondary rules that distinguish legal systems from primitive systems of law. Here he defines
and explains the nature of primary and secondary rules. While primary rules are
“concerned with the actions that individuals must or must not do…secondary
rules are all concerned with the primary rules themselves. They specify the way in
which the primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined,” (Hart 2, 92).
Primary rules are rules of obligation asserting how people should behave, and secondary
rules are rules about “establishing, changing, and applying primary rules,” (Hart 2, 80-
81). Hart notes three classes of secondary rules that highlight the change from primitive
law to complete legal systems. First and foremost is the rule of recognition, which
indicates how to identify another rule as a legal rule. It is a rule used to point out the
primary rules of obligation. A rule is considered valid if it passes the tests of the rule of

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recognition. In order to pass this test and be considered a valid legal rule, a rule must be
traceable to a legal source under a rule of recognition, (103).
The second rule Hart denotes is the rule of change, which explains the ability of a
society to change, add, and remove valid rules. His final rule in this group is the rule of
adjudication, which offers a method for deciding if a valid rule has been broken, (Hart 2,
97). If a proposition satisfies the criteria of validity inside a binding rule of recognition,
then it is legally valid. Consequently, Hart concludes that rules of recognition which
adequately present legally valid criteria and rules of change and adjudication must be
accepted as “common public standards of official behavior by its officials,” (Hart 2, 113).
One of the central debates against the theory of Hart is put forth by Dworkin. It
starts with Dworkin arguing against four doctrines he assigns to Hart; three of the four
are said to be misrepresented, so we shall forego them at this time and place our concern
upon the one that stands. This is the idea that, in the event of a particular case that a rule
does not exist to adequately control, judges exercise freedom of choice in discerning the
outcome of the case, (Dworkin, 17). Dworkin uses the terms “strong” and “weak”
discretion to analyze and distinguish between the types of discretion employed. Strong
discretion is the type of discretion a decision-maker has when not constrained by specific
laws that have been set before by authority. Weak discretion is the type of discretion by
which the rules an official must apply may not be applied conventionally but call for the
use of judgment, (Dworkin, 31). Weak discretion is inevitable when it is understood that
law may entail the use of “principles,” or “legal standards which do not apply in an all-
or-nothing fashion even when their factual predicate is satisfied, but rather have to be
weighed by the judge against other principles in reaching a conclusion,” (Leiter, 3).

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Therefore, when a new type of case surfaces and the existing law fails to answer it
sufficiently, a judge must exercise his or her best judgment in order to decide what is to
be done; in effect, once a decision has been made, it becomes an instance of law. That
being said, law cannot always be made without the presence of moral consideration.
Now that we have covered some of the basics, it is time to go on to the theory that aims
to tie together the theories previously covered. In order to do this, we are to consider the
possibility of a just tradition of law within the tradition of analytic jurisprudence from a
deconstructionist viewpoint. In order to do this we must rely largely upon the work of Jacques
Derrida in his work, “Force of Law.” Derrida places his chief concern on discerning between law
and justice. He immediately grants the possibility of a justice, and of a law that, in addition to
contradicting law, also has no relation to it or bears such a bizarre relation to it “that it may just
as well command the [law] that excludes it,” (Briggs, 258).
Law is deconstructible where justice is not deconstructible. This is because law is
founded on interpretable, albeit changing, factual data whereas justice is not. Derrida makes the
claim that “deconstruction is justice,” in that both exist although they are never actually present.
Justice in law is not directly present regardless of how it is reckoned, because its reckoning will
have to be reasoned logically, and there is no logical explanation of justice, (Briggs, 258).
However, justice transcends law and directs it; it is the reason and purpose of law. Conversely,
law is the condition of justice. Neither can exist without the other. Law does not exclude justice,
but rather, it falls short of justice. Deconstruction is a theory that claims to be able to bridge this
gap between law and justice, (258).

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From here, we shall more or less bypass the difficulty in attempting to logically establish
the theoretical truth of justice. Rather, we shall concern ourselves with a “problematic of
discipline” and with “the question of deconstruction’s disciplinarity,” (258). Derrida notes the
need for a trans-disciplinary approach concerning deconstruction, in this case, within the
tradition of critical legal studies, since there seems to be a lack of interest in this sort of detailed
consideration among mainstream analytic law theorists, (Briggs, 259). Litowitz held that by
considering the viewpoint of continental theorists and considering their work logically we might
attempt to connect the opposing traditions of jurisprudence; however, Litowitz failed at this
because he conducted his study from the viewpoint of analytical jurisprudence, presupposing it
as an unproblematic method of analysis. This reproduced the problem he set out to fix in the
first place, (259). This is one example of a reason that deconstruction is offered as a way to
reconcile the matter of justice and law rather than previous theories which fail to work due to the
nature of their foundational structure; i.e. - analytical theory fails to argue any valid point for
theories of value. “Any attempt to work with or on disciplinary divisions may be forced to
employ the terms it might otherwise seek to analyze or to critique,” hence the importance of
employing a different or outside doctrine to reanalyze the doctrine or doctrines we wish to
critique, (260).
By that token, let us get back to addressing the place of justice and law within the
tradition of jurisprudence. Going back to the natural law theory, recall that it is considered the
adequate duty of law that what law ought to be decides what law is. Put differently, legal
description proceeds relative to particular foundational values concerned with the nature of
reason, (Briggs, 261). On the other hand, legal positivism rejects this view and concerns itself
with the science of law itself without regard to its description or moral concerns. According to

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this view, “law simply exists,” (261). From here, we journey back to the view Hart takes of
logical positivism. Hart set out to provide a descriptive sociology of law; that is, he attempts to
provide a means by which it is possible to identify a legal system as a social entity, (261). He
argued that the best way to do this was to through its description of primary and secondary rules;
primary being general rules of conduct, and secondary indicating normal patterns of social
endeavor as well as individual internalization of those norms as proper, (261). He advocated this
as a reason for action or for abstaining from action.
The problem is this: “a system of primary rules does not of its own constitute a legal
system, for there are many such rules of conduct that are not properly considered as part of law,”
(Briggs, 261). As a result of this and of the rule of recognition, which identifies primary rules of
conduct as law rather than custom, Hart reduces the study of law to a form of sociology, (262).
Dworkin challenges this detachment of law from morality, as noted earlier, with the primary
argument being that law consists of principles in addition to rules. He argues that a principle
constitutes a “standard that is to be observed [within law]…because it is a requirement of justice
or fairness or some other dimension of morality,” (262). Principles add a dimension of weight to
rules requiring them to balance upon coming into conflict. The pertinence of principles may be
considered contextual, calling for attention to additional information involved in specific cases,
(262). Principles are unlike legal rules because the classification of laws by Hart’s rule of
recognition would also confirm their legal validity as being unique from their merely
conventional acceptance, (262). However, considering the role principles play in legal theory,
they are not simply conventional facts that are unique to legal systems; therefore, they are not to
be classified under the rule of recognition, (262). It is in this way that Dworkin claims that
Hart’s distinction between acceptance and validity does not work. So long as principles aim at a

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justification of law, they cannot be considered specifically legal. This is why principles are
concerned with reasoning beyond law, including morality and politics, (263). However,
principles remain a part of law. If they were not, then new cases involving the requisite of
judicial discernment would be inadequate to the body of law. In fact, there would be no law
identifiable by legal positivism because no laws could have been legally posited in the first place
without principles.
In view of what has been mentioned, a reconsideration of legal theory or of justice as law
seems adequate; if this is possible, by this point it seems evident that it be reconsidered from an
outside or alternative viewpoint. Thus we have accounted for the problems of law or of the
prominent disputes of legal theory inherent in the aforementioned theories. “As much as their
work seems aimed at identifying law or legal systems, it also addresses certain problems or
silences within law, certain moments where the very identity of law is in doubt,” (264). If the
correct function of law is to be merely applied, then any doubt concerning the interpretation of
the laws would be provided by discovering the correct intent of the legislators who created the
rules. Conversely, the law calls for a certain amount of discretion or interpretation when
ascertaining the implied meanings of laws, which means that reasoning would be involved,
which ultimately entails subjective opinions about the nature of given laws (Briggs, 264-265).
This is how law confirms its connection with values, or with justice. It is not a bad thing; values
give a purpose and identity to law. They enable us to discern whether a law should be followed
rather than blindly obeying an otherwise unjust law.
This does not bring us to the direct identification with law as justice or with an idea of
justice that is any more necessarily measurable. Deconstruction may be closest to explaining its
nature by explaining it as always being beyond the facts of law while never directly present.

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Nonetheless, deconstruction has managed the impossible by bridging the gap between law and
justice. Now that we have covered this, we have the sufficient components available such that
we can look at a legal issue and diagram it from many points of view, albeit generally at this
point, through a deconstructionist lens.
We shall now attend to the matter of corporate personhood. With the material covered so
far, an analysis of what this issue literally entails in addition to a discussion of the plausible
ethical implications is possible. Corporate personhood pertains to the debate regarding what
subclass of rights delineated under the law to natural persons should also be ascribed to
corporations as legal persons. To clarify, natural persons are those human beings as distinguished
from jurists, organizations, or artificial persons whereas legal persons are classified as artificial
persons or vehicles that have rights and responsibilities just as natural persons do. The
predominant debate concerning corporate personhood is the part that corporate money occupies
and how it ought to function in politics. Now let us take a look at some of the key cases involved
to get a sense of the history behind the issue.
The Tillman Act of 1907 was the first law to bar corporations from giving money to
national political campaigns, (McConnell). "As the historical background of this statute
indicates, its aim was not merely to prevent the subversion of the integrity of the electoral
process. Its underlying philosophy was to sustain the active, alert responsibility of the individual
citizen in a democracy for the wise conduct of government," (McConnell). In other words, this
was an act which entailed two main purposes: to keep the integrity of the electoral process intact,
and, to maintain the responsibility of each citizen in a democracy.

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In 1971, the Federal Election Campaign Act was passed and was enacted in 1972. The
purpose of this act was to “promote fair practices in the conduct of election campaigns for
Federal political offices, and for other purposes,” (FECA). This seems quite vague, so I shall
elaborate on its specifics. This legislation required complete information regarding campaign
donations and expenses as well as limitations for spending on advertisements. It also provided
the legal backing necessary to provide for separate segregated funds, established by corporations
and unions. Though the Tillman Act of 1907 banned corporate contributions and donations from
labor unions for Federal elections, the Federal Election Campaign Act of 1971 allowed for an
exception such that they could use treasury funds to obtain voluntary donations for the separate
segregated funds in organizations. (FECA)
In 1976, in the Buckley v. Valeo case, the court ruled in favor of the agreement that
limitations or restrictions were in order concerning the reliance of candidates on large campaign
contributions. However, the court deemed the expenditure ceilings unconstitutional under the
first amendment. This means that there were limits set on campaign contributions. However,
they decided that donating to influence elections is a constitutionally protected method of
freedom of speech, so some of the laws covered previously are being thrown out as an effect of
this law. Under this law, candidates are allowed to donate unlimited sums of money to their own
campaigns, (Buckley v. Valeo). In 1978, the Supreme Court issued its ruling in the Citizens
United v. Federal Election Commission (CU v. FEC). This law reestablishes that corporations
and unions have a right under the first amendment to donate to political campaigns. It also
claims that these rights may not be banned, (CU v. FEC).
In the Austin v. Michigan Chamber of Commerce case of 1990, the Supreme Court ruled
that the Michigan Campaign Finance Act did not go against the First and Fourteenth

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Amendments, (Austin v. MCC). The Michigan Campaign Finance Act was a law forbidding
corporations from accepting treasury money to influence elections. The notion that “corporate
wealth can unfairly influence elections” was maintained although the state law still allowed
corporations to donate political candidates from a segregated fund, (Austin v. MCC).
The Bipartisan Campaign Reform Act of 2002 is a federal law which regulates the
financing of political campaigns. Its main effect was that it prohibited corporate funding of issue
advocacy ads that mentioned candidates within 60 days of a general election or 30 days of a
primary election, (BCRA). In 2010, in the Citizens United v. Federal Election Commission case,
the Supreme Court overruled the former policy, (CU v. FEC). According to this law, the
corporate funds to issue advocacy ads that would mention candidates and air soon before an
election cannot be limited by the First Amendment, (CU v. FEC).
It is evident from the above laws the great extent to which they have changed over the
years to allow for more and more corporate donations toward political campaigns. Nearly all of
them make use of the First Amendment by saying that the law in question cannot be limited by it
or by stating that to prohibit the law in question breaks the First Amendment in some form. If
analyzed by the traditional positive law theory of Austin, the moral value of the legal history of
political spending with regard to corporations could not be determined whatsoever. What it
could render is that the laws are legally valid and that, as such, they are justified under the law.
On the other hand, if it was considered from the point of view of natural law, then a
moral value could be placed upon it. If taken from the common points of view of Aquinas and
Finnis that to do harm to another is unjust or immoral, then this is an arguable standpoint,
depending on which way one wishes to look at it. A similar standpoint applies when considering

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this from Hobbes’ universal theory of self-preservation. If Aquinas or Finnis believes that
corporate spending does harm to rational beings, then it is unjust and should not be deemed law.
If either of them believe the opposite and that no one is harmed by them, then these laws may be
considered moral and valid.
Hobbes’ theory of self-preservation seems somewhat more relative in nature to decide
whether these statutes are just or unjust overall. If looking at it from the point of view of a
natural person without vast riches that have ties to the corporations, and if the laws that enable
the corporations to donate unlimited amounts of money to campaigns are in effect harming the
wellbeing of this natural citizen, then it is unjust. If corporate spending does not harm the self-
preservation of the natural citizen, then it is okay. From the relative standpoint of the
corporation and politics involved, their self-preservation is evident, so it is valid from their points
of view.
The closest theory of justice Hart advocated was that of utilitarianism. From the
standpoint of utilitarianism, if these laws produce the greatest good for the greatest number, then
corporate personhood and spending is okay. A possible way that this could be considered true is
if the corporations were donating money to the government with the genuine best interests of all
citizens in mind, or if the governing entities that accept the donations create its laws with the best
interest of all citizens involved. If in either case the donations made or accepted brought about
laws that functioned without respect for the wellbeing of all citizens and only rendered laws that
aided the corporations and governing officials’ assurance of re-election or some other form of
personal gain, then this is unjust.

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To conclude from within the ever-transitioning standpoint of deconstruction, and to
incorporate a personal take on the matter, I admit that I do not wish to blindly follow an unjust
law, however much I may obey it in order to live. I think the matter, as it presently stands, is
unjust to a large degree. That is not to say that every CEO or shareholder involved in a
corporation and that every governing official involved are using these laws as a means for ill
will. However, the term corporation itself gives off a negative connotation unless attributing to it
a Randian ethical point of view, which I do not have time to discuss at present. Corporations
have been handed bail outs by the government in recent years for lending too much money when
the corporations could have avoided the trouble by planning ahead logically, perhaps with a
fiscal map and more cautious entrepreneurial skills. It might not be so bad if the national debt
were not so high. I am a bit skeptical about the system of morality involved in a corporation’s
being granted individual rights. They are bodies of people rather than individual persons. It
seems feasible that the prime force backing the value system of a corporation is profit motive in
its rawest form rather than considering the overall wellbeing and genuine happiness of every
citizen in the United States, or moreover, of every citizen in the world.

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Works Cited
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Cited as Aquinas by part, question, and article.
Aquinas, Thomas. Commentary on the Nicomachean Ethics.
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The Philosophy of Positive Law, two vols., R. Campbell (ed.),
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[Bristol: Thoemmes Press reprint, 2002].
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Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation.
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Analytic Jurisprudence." Social Semiotics. 11.3 (2001): 257-274.
Buckley v. Valeo, 424 U.S. 1 (U.S. 1976). Lexis Nexis. Web. 3 May 2011.

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Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010). Lexis Nexis. Web. 3 May 2011.
Dworkin, Ronald M. "The Model of Rules."
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Finnis, John. 1980. Natural Law and Natural Rights.
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Hart, H.L.A. 1958. “Positivism and the Separation of Law and Morals,
”Harvard Law Review, vol. 71, pp. 593–629.
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Oxford: Clarendon Press, 1994. P. 92.
Hobbes, Thomas. 1993. Leviathan. Ed. Edwin Curley. Indianapolis: Hackett.
Cited as Leviathan by chapter and paragraph number.
"Holy Bible: King James Version." Mark 12:31. Royal Publishers, Inc., 1971. Print.
"John Austin." Stanford Encyclopedia of Philosophy.
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<http://plato.stanford.edu/entries/austin-john/#AnaJurLegPos>.

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Leiter, Brian. "Beyond the Hart/Dworkin Debate: The Methodology Problem in
Jurisprudence." American Journal of Jurisprudence. 48.17 (2003): 1-24.
McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) 1907. LexisNexis. Web.
3 May. 2011