Legal function

Topic: what is the function of the legal system (the use of force) that could guide legislation in a society?
An answer to the above question would provide guidance in the making of law and the use of force that
would influence indviduals under the law in their actions.
We examined two distinct and in some ways competing answers to the function-question: Hoppes Legal
Liberalism and Devlins Legal Moralism. There are costs and benefits to either system. Below is a chart
comparing the two systems.
For this essay you need to think about the reach, extent, limit and use of the law to compel or restrict
action in a society. What can you say about what the reach of the law should be? How can you apply
either Devlin or Murray to a contemporary or historical use of law and either defend or criticize that
use? What about the answers to the function-question provided by either Devlin or Hoppe do you think
problematic and criticizable or worth-defense?
Title Legal Moralism Legal Liberalism
In-principle extent, reach, limit
of law
No in-principle distinction
between legally permissible and
impermissible.
In-principle distinction between
legally permissible and
impermissible.
Attention to emotion or reason Feeling: the possibility of
principle rule is limited by the
passionate animal part of man.
Reason: there is a justifiable/
universal standard that serves
as foundation.
Attention to ideal vs. practical Gets at practical limitation Gets at ideal justification
Attention on community vs.
individual
Emphasis on community Emphasis on individual
Attention to maximal extension
vs. minimal foundation
Emphasis on maximal extension Emphasis on foundational
minimum
Criticism Criticized for allowing moral
monstrosity
Criticized for allowing moral
disintegration
Values emphasized Societal self-protection Individual property rights
Other themes Wolfenden Report, societal
right to moral legislation,
impossibility of living under
consent principle
The impossibility of rejecting
property rights, homesteading
principle, rights to physical stuff
NOT value of stuff

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