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We usually assume that there is law in a society only if that society has its... laws. But I would like to ask if you think there is another important sense of "law" or of "legal matters" (I'm a law student). Suppose Pete goes to some wise and strong person, Justine, and tells her: "I want that guy, Pat, to be forced to give me back the tool I lent him, since the time has passed when he sould give it back to me, according to what we agreed." As far as I see it, if Justine wants to hear Pete and Pat and have some intervention in their dispute, she has a legal question in hands. She will be like a judge. I think that some questions are legal irrespective of whether some group of people has any previous legal organization. This story between Pete, Pat and Justine could take place on a desert island where the three might have just arrived coming from different places.

As you say, Justine would be "like" a judge, but I don't think that actually makes her a the sort of judge who presides over a court of law. She might be making a moral judgment or even a political judgment. Clearly, ideas like what one "should" and should not do are operant here, and clearly it seems to be relevant to appeal to reasons, such as the agreement Pete and Pat made. But those are also the sort of things to which friends or students or romantic partners appeal in disputes. You don't have, however, a formalized legal code. Procedures for adjudication and appeal. Etc. So, while I'd say you have some of the elements of the rule of law or legal institutions, what you describe isn't quite sufficient to warrant describing their situation as "legal."

Some proponents argue that in the judicial system, matters of policy reasons are best left in the hands of Parliament to decide. For instance, cases involving moralities which appear before the courts such as deviant sexual practices, assisted suicide and the likes where consent is clearly given and that these practices have not yet been made illegal/unlawful. In these cases, is it over the board to say that judges who decide based on the general consensus of morality in a particular society are interfering with one’s conduct (because it has not yet been made illegal/unlawful) even though it is generally understood that these practices are inherently wrong? Can this statement be countered by Dicey’s third postulate on the rule of law that the courts are the guardians of citizens’ rights and that judicial activism is necessary to solidify a common morality? Or is it best for a judge to merely sit back and apply the law as it is, despite knowing that had Parliament decided on these issues, it would be...

This question merits a much longer answer than I am capable of giving. But, with apologies for the compression, I'd say that the distinction between "activist" and "non-activist" judging is a popular-political distinction, not really one with much philosophical basis. Both the legislature and the judiciary produce new law and nullify old law, and they have always done so. They create and nullify law, however, in different ways--the legislature by enacting new legal codes, the courts by issuing rulings. Nor, however, is the line between the law and morality a clean one to draw. And, so, while I think it proper (indeed unavoidable) for the judiciary to enact new law, I also think it proper for judges to appeal to custom and common morality in rulings (for example in matters of indecency). Appeals to custom and common morality, however, must be balanced and in some cases simply limited by stipulated rights of non-interference and claim rights. They must also be balanced by countervailing lines of...

A friend of mine claims that the Iraq war was not 'illegal' as there are (and were) no laws in place that could allow it to be defined as such. Regardless of whether or not this is the case, is there an agreed set of philosophical principles that allow for war to be defined as 'legal/illegal' (and not just moral/immoral)? How might we go about discussing the legalities of war on an international scale? Alastair

One of the criteria philosophers generally agree upon for just war is "legitimate authority"--that is, a just war must be authorized in legitimate (usually meaning lawful) ways. The United Nations charter and the U.S. Constitution, for example, set out procedures for properly authorizing war, as will the legal codes of most nations. To evaluate the legality of this war, one must extablish whether those procedures were followed in proper ways. In particular, here you should look at whether the U.S. Congress authorized the war and whether the U.N. Security Council authorized the war. (See Articles 39, 42, 51 of the UN Charter; also see Security Council Resolution 1441; see the U.S. Congress's Joint resolution on the war of October 2002.) Another issue to consider is whether or not, even if authorization was given, the authorization was rendered illegitimate or void since it was predicated on deceitful claims about the nature of the threat posed by Iraq. You may also consider whether any ...