Philosophy of Law: Grudge Informer Scenario

Week 1: Introduction to the Philosophy of Law

• The Grudge Informer scenario is set in a fictional country transitioning from a constitutional democracy to an oppressive regime ("Purple Shirts") and then back to democracy.
• The Purple Shirts maintained a legal facade but ruled through terror, using secret and retroactive laws and violently suppressing dissent.
• The core legal problem revolves around punishing "grudge informers" who used the oppressive system to report personal enemies.
• Deputy Ministers propose different legal positions on punishing informers including:
  • Do Nothing (informers acted within the laws of the time.)
  • Legal Positivism (law = rules set by authority with morality being irrelevant.)
  • Do Nothing (the Purple Shirts era was pure anarchy, so no legal system.)
  • Radical Skepticism (no real laws therefore no real crimes.)
  • Case-by-Case (some informers acted for personal gain and others had no choice.)
  • Legal Realism (law is not black and white, context matters.)
  • Retroactive Law (criminalize actions under a new law.)
  • Natural Law Approach (unjust laws should never be valid.)
  • Let Society Handle It (this is a moral rather than a legal problem.)
  • Ethical Non-Legalism (some things are beyond the reach of law.)

Key Legal & Philosophical Dilemmas

• Legal Positivism vs. Natural Law explores whether law is valid even if immoral versus whether unjust laws are not real laws.
• Retroactive Justice & The Rule of Law examines the conflict between the principle that laws should not be applied retroactively and the problem of how to address unjust actions under a previous regime.
• Moral Responsibility & Coercion questions whether informers acted freely or were coerced, and their guilt relative to the government.

Rule of Law vs. Arbitrary Power

• The Rule of Law means laws govern society, not arbitrary power.
• Essential features of the Rule of Law: laws must be publicly known, applied equally, and no one is above the law.
• Arbitrary Power is when rulers ignore laws and govern as they wish. Shown when The Purple Shirts made secret and retroactive laws violating the Rule of Law.

Constitutional Law & The Canadian Legal System

• The Constitution Act, 1867 established Canada as a federation and divided powers between federal and provincial governments.
• The Constitution Act, 1982 added the Canadian Charter of Rights and Freedoms and created a process for constitutional amendments.
• The Canadian Charter of Rights and Freedoms protects citizens from government overreach and applies to government actions rather than private disputes.
• Section 1 (Reasonable Limits Clause) states that rights are not absolute, and can be limited if justified in a free and democratic society.
• Section 2 protects Fundamental Freedoms, including speech, religion, press, and assembly.
• Sections 3-5 protect Democratic Rights, including the right to vote and fair elections.
• Sections 7-14 protect Legal Rights, including a fair trial, protection from arbitrary detention, and cruel punishment.
• Section 15 protects Equality Rights, prohibiting discrimination based on race, sex, disability, etc.
• Section 24 (Enforcement Clause) allows courts to invalidate laws that violate the Charter.
• Section 33 (Notwithstanding Clause) lets Parliament & provinces override certain Charter sections, rights are not permanently overridden, and must be renewed every 5 years.

Introduction and Big Questions About the Law

• Law distinguishes itself from religious commandments (based on divine authority) and cultural norms/customs (socially accepted behaviours.) Military orders, contractual obligations and game rules.
• The law is more than an arbitrary command.
• Theories of Law:
  • Natural Law: Law is tied to morality, reason, and the common good.
  • Legal Positivism: Law is a social construct, and its validity depends on who makes it, not whether it's moral.

Thomas Aquinas: Natural Law Theory

• Law is defined as an ordinance of reason for the common good, made by legitimate authority and publicized.
• Aquinas defines four types of law:
  • External Law: God's ultimate, universal order
  • Natural Law: Human participation in Eternal Law
  • Human Law: Laws created by governments that should align with Natural Law
  • Divine Law: Law given directly by God

Recognizing a Just Law

• Natural Law: Laws must be just, with validity reliant on alignment with morality.
• Unjust laws contradict Natural Law, benefit corrupt rulers, violate the common good, or are too vague, secret, or retroactive.
• MLK used Natural Law Theory to justify civil disobedience.
• John Finnis states that law should promote seven basic goods: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion.

Criticisms of Natural Law Theory

• Criticisms: disagreement on morality, potentially real consequences of unjust laws, and separation of law and morality for legal positivists.
• Lon Fuller states that law must have "internal morality" to be valid.
• H.L.A Hart says Law is separate from morality and only needs a proper procedure.

Week 4: John Finnis & Lon Fuller

• Finnis is an Australian legal Philosopher born in 1940.
• Finnis says Natural Law is about serving fundamental human goods.
• Law is legitimate only if it helps humans flourish while protecting life, health, laws against murder and health regulations.
• Knowledge requires the pursuit of truth, education, and access to information.
• Play refers to enjoyment, recreation, leisure activities while promoting sports and leisure rights.
• Key points on these universal goods: Self-evident but not provable, universal, cannot be reduced to each other.
• Finnis: Law must align with practical reason to be legitimate, morality is secondary, and unjust laws are not real laws if they fail to promote human goods.
• Laws are invalid if made for private gain, exceed authority, lack proper procedure, or are unjust.

Criticisms of Finnis' Theory

• Not everyone agrees on "universal" goods.
• Finnis' theory doesn't explain legal systems that function without morality and Legal Positivists argue morality is not need for proper code.

Lon Fuller - The Inner Morality of Law

• (1902-1978), American legal philosopher taught at Duke & Harvard.
• Fuller focused on the "structure" instead of the morality itself.
• Fuller argued that laws must be general, promulgated, prospective, clear, coherent, practical, stable, and congruent to be legitimate.
• Fuller said Nazi laws failed because of unclarity, retroactive, and selective enforcement, ceased to function correctly if these principles were violated.
• Fuller believed a system must have internal morality (predictability, fairness), Hart believed it just needed clear rules even if immoral.

Week 5: John Austin & H.L.A Hart

• John Austin (1790-1859): Founder of the Command Theory of Law. Believed law should be studied descriptively, not normatively.
• Austin's Legal Positivism:
  • Law separate from morality: unjust law is still a law.
  • Law as Command: the command of a sovereign, backed by sanctions.

Austin's Theory of Law Components

• Command: Law as an order from a sovereign.
• Sanction: Punishment for disobeying laws.
• Sovereignty: Laws come from an obeyed ruler or ruling body, Parliament makes tax laws.
• Characteristics of Law:
  • Laws issued by a sovereign, binding due to force, morality is separate.
  • Even an unjust law is valid if from the sovereign.

Criticisms of Austin's Command Theory

• Not all laws are commands eg: Power-conferring laws which do not order but allow the creation of legal rights.
• All laws should not have sanctions and not come from a single sovereign.
• H.L.A. Hart refined Legal Positivism and rejected Command Theory

H.L.A. Hart: The Concept of Law

• He agreed with Legal Positivism but disagreed on the Command Theory because not all laws have sanctions.

Hart's Primary and Secondary Rules

• Primary Rules: Laws telling people what to do or not do (e.g., criminal laws).
• Secondary Rules: About how laws are made/changed/interpreted (e.g., constitution, court procedures).
• Three Types of Secondary Rules:
  • Rule of Recognition: Identify valid laws (e.g., Canadian Constitution).
  • Rule of Change: How laws are created or modified (e.g., Parliament can amend).
  • Rule of Adjudication: How to apply/interpret laws (e.g., judges use precedent).
• Hart says that Law does not need to be moral to be valid but admitted there were moral influences.
• Gunman Analogy to prove law not just a command

Week 6: Riggs v. Palmer (1889) & The Queen v. Dudley and Stephens (1884)

• Riggs v. Palmer Case: Elmer poisoned his grandfather to inherit, the court decided Elmer should not inherit, focusing on the law's intended purpose.
• Dissenting Opinion argued judges must apply the law as written.

The Queen v. Dudley and Stephens (1884)

• Dudley & Stephens killed and ate Parker to survive after they were stranded at sea
• Court ruled necessity cannot justify murder: guilty verdict, later commuted to six months.
• Key rationale: sanctity of life/dangerous loopholes.

Week 7: Wing v. Angrave V. UBC

• In Wing v. Angrave an 1860 case the estate was transferred to default intestate heirs since there was no sequence of proof. The lack of proof of the sequence of death resulted in following intestate rules.
• Barbour V. University of British Columbia was about the legality of retroactive laws.

Week 8: Wesley Hohfeld & Ronald Dworkin

• Wesley Newcomb Hohfeld (1879-1918): American legal scholar who worked to clarify legal terminology, with rights as relationships, and legal rights implying a duty on someone else.
• Four Types of Rights:
  • Claim-Rights
  • Liberty-Rights
  • Powers
  • Immunities
• Each right has an opposite.

Waldron Dworkin - Law As Integrity

• Ronald Dworkin (1931-2013) opposed H.L.A. Hart's Legal Positivism.
• Law includes moral principles, judges interpret laws based on them, and law and morality are connected
• He believed Law is more than rules, judges interpret laws as a coherent system of justice, principles used to resolve complex cases.

Law Is Integrity

• Judges work within the legal system as a whole interpret based on past rulings, but do what's best.

Week 10: John Stuart Mill

• John Stuart Mill (1806-1873): British philosopher, individual liberty and social reform, influenced by Utilitarianism.
• He defined liberty as freedom to pursue goals without unjust interference.
• Mill's Harm Principle: Freedom can be limited only to prevent harm to others. State cannot restrict actions because they're bad (paternalism) nor enforce morality unless it prevents harm.
• Harm and Offense Definitions:
  • Liberty: Freedom to pursue preferences without interference.
  • Harm: Violation of someone else's rights/well-being.
  • Tyranny of the Majority: Majority oppressing minority views via pressure/laws.
  • Actions Affect: only the individual or others.
• Freedom Speech: The speech should be protected and is crucial.
• He was a supporter of limited government: only intervenes to stop harm, no overregulation and excessive government parentalism.

Week 11: The Cases of R. v. Machekequonabe (1897) and R. v. Turok (2024)

• R. V. Machekequonabe: a legal issue was presented to the courts as to whether a Mistaken Belief could excuse criminal liabilty.
• Principle of ruling: A mistake of law (misunderstanding legal rules) is not a defense.
• Machekequonabe's belief in Wendigos was not a factual mistake but a cultural or religious one, which the court did not accept as a defense.
• Rv. Turok involved issues of responsibility and mental illness and raises issues of criminal responsibility and mental illness under Section 16 of the Criminal Code.

Week 12: Legal Proof and the Blue Bus Problem

• Rv Oj Simpson: OJ was former American Football player tried for the murder of his ex wife and another man. He was controversially acquitted on charges of murder, but found negligent in a civil case.
• A problem was brought up: Should statistical probabilty be suffifient to determined liabilty in a civil case?

Week 13:Reference Re Resolution to Amend the Constitution (1981) & Reference Re Secession of Quebec (1998)

• As a reference case the government asks a court for an advisory opinion on a legal / constitutional question before a dispute / lawsuit arises.
• Federalism, Democracy/Referendums, Constitutionalism/Rule of Law, and minority rights protections, guide matter.

Week 14: R. V. Oakes (1986)

• David Oakes was arrested on narcotics charges that had the presumption he was going to traffic them, unless he could prove otherwise, violating section 11(d) of the Charter.
• A reasonable expectation of privacy test was introduced.
• The Oakes Test: (1) Is Objective Pressing and Substantial, (2) Proportionality Test which has:Rational Connection, Minimal Impairment, and Proportionate Effect

Lecture 15 R. V. Big M Drug Mart LTD & Irwin Toy

• R. V. Big M Drug Mart LTD challenged the day of rest to the court when they were required to keep the store closed.
• It was challenged that it violated freedom of conscience and religion and whether it could be restricted under s.2. Supreme ruled yes, it conflicted with law and was an unconstitutional issue.
• Irwin Toy LTD: a similar case in the context whether children should be banned from having ads aimed at them. There was another challenge to freedeom of expression that was in direct contact with the other case.
• They met Oakes Test again when limiting adds to a younger audience as it was viewed as beneficial to the audience.