The nature and limits of guidance

Thesis

It has become a popular view in jurisprudence that the law exists to guide us. The aim of this thesis is to cast doubt on this popular view. I will argue that it is plausible to think that the law does not necessarily exist to guide us. I do this while accepting that the law is necessarily normative. The argument is qualified in two key ways, however. The first is that by ‘guidance’, I have in mind a certain kind of interaction between people and the law, an interaction that (at least partly) occurs in people’s minds. The second is that, in arguing that it is plausible to think that the law does not necessarily exist to guide us, I do so from the premise that the law necessarily aims to be a supreme normative authority. Whilst qualified in this way, the upshot of the argument is significant. Viewing an attempt to provide guidance so understood as a necessary or central feature of the law gives rise to some valuable functions that the law can aspire to achieve by guiding, as well as a distinctive mode of operating that some think has inherently valuable qualities. We get to say, for example, that the rule of law provides some necessary constraints on how laws should be designed. These valuable aims and constraints become external aims and constraints once guidance is jettisoned from the concept of law. In short, therefore, the thesis argues that if the law necessarily aims to be a supreme normative authority, then it does not follow from the fact that the law is a reason-giving normative system that it is true in virtue of the very nature of law that it should not be secret or that it should not just oppress people into conformity.

Authors: Pike, J

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: normative guidance; normativity; philosophy of law; jurisprudence; practical reason; rule of law
• Subjects: Normativity (Ethics); Jurisprudence; Practical reason