The Central Aporia of The Philosophy of Law
The Central Aporia of The Philosophy of Law
Dr Stephen Boulter
Reader in Philosophy
Department of History, Philosophy and Culture
April 2019
Introduction
(1) The law determines a case. Judges merely apply the law
once the facts of a case have been determined
(2) The law must be minimally just, or is no law at all
(3) Morality/justice is context sensitive (non-codifiable)
(4) The law must be generalised, depersonalised,
decontextualised, ‘blind’ (equality before the law)
(5) From (3) and (4): The application of the letter of the law is
often morally suboptimal
(6) To deal with (5) the notion of ‘equity’ was introduced to
allow judges to rule according to ‘the spirit of the law’
Problem: (6) describes the rule of judges, not the rule of law.
Responses: Plato
Abandon the Rule of Law
The idea that the law determines the outcome of a case is part
of the myth of the rule of law. But it is not what actually
happens in courts.
Law and morality are distinct. A law can be immoral and still
be law (however unpalatable that might be).