What is the law? Is it simply what’s to be found in legal statutes and government decrees? Or is it something broader, affected by and inseparable from both morality and custom?
This is one of the fundamental debates in philosophy of law. On one side stand the positivists, who propose a narrow view of the law as separate from ethics and other concerns outside of the direct commands of the state. On the other, we have natural rights theorists, who believe the law and morality are inseparable. Indeed, according to natural rights theorists, illegitimate laws aren’t laws at all.
On what grounds may this debate be settled? And what’s really at stake here? Is there more to this than a question of semantics? Legal expert Michael Zigismund guides us through this debate, and applies it to three areas: Nazi law, slavery, and gun ownership. He concludes with a summary of a “third way”, which he argues takes the best of both while avoiding their pitfalls: the Hayekian view of law as emergent practice.
Special thanks to Jackie Blum for the podcast art, and The Tin Box for the theme music.
0:20 – Introduction to Michael Zigismund
2:02 – What is law?
8:53 – Common law v. customary law
11:36 – Positivism v. natural law
16:45 – Is Nazi law law?
19:23 – Separation thesis
22:54 – Application to federalism
26:14 – Where does morality of law come from? Morality v. social stability v. customs
29:10 – Is this a semantic debate? (example: second amendment)
32:19 – Ignoring illegitimate law
36:31 – Lysander Spooner on slavery
45:35 – Hayek on the law