Legal Thought Midterm PDF

MAIN DIFFERENCES 3 main aspects we have studied Creation → the act of positing law ○ Aquinas ○ Finnis: how this is determined by moral principles Obligation → how law affects and determines my actions ○ HLA Hart: there is a difference between have an obligation and is obliged Interpretation → how we...

MAIN DIFFERENCES 3 main aspects we have studied Creation → the act of positing law ○ Aquinas ○ Finnis: how this is determined by moral principles Obligation → how law affects and determines my actions ○ HLA Hart: there is a difference between have an obligation and is obliged Interpretation → how we interpret it ○ Dworkin: judicial interpretation of law Debates and controversies John Finnis v. HLA Hart HLA Hart v. Dworkin HLA Hart v. Lon Fuller Case studies The Queen v. Dudley and Stephens The case of the speluncean explorers Riggs v. Palmer Natural law theories - Main difference is the source of morality - Aquinas = Christian God - Finnis = comes from objective good, it's in us - Greeks = own divine laws Key words - Natural law: executive clemency, justice, divine, moral standards, morals+law - Hard positivism: judicial silence, separation between laws and morals - Liberalism: justice, fairness and due process (Dworkin) LEGAL THEORY: NATURAL LAW Queen v Dudley - - Executive clemency → judicial deference - We recognize that the law is unjust - But if we start saying that, we lower the moral standards of society - We hope the executive will grant mercy - Q v D → murder - Weren’t necessarily culpable in the sense that we understand it - Courts say that they are guilty but hope the executive will decide otherwise Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence Judges must ascertain the law to the best of their ability and if in any case the law appears to be too severe to individuals, WE NEED TO LEAVE IT TO THE SOVEREIGN = PREROGATIVE OF MERCY LEGAL THEORY: THE GREEK NATURAL LAW TRADITION Antigone - Sophocles (441 BC) Facts - Two brothers die at war - The King (Creon) orders that one brother receives a proper burial and the other is left to rot - Antigone buried the other brother anyway, disregarding Creon’s order that anybody who attempts to do so will be sentenced to death - Antigone was sentenced to death Key Dilemma: Morals vs Laws Key Idea: Act according to what you believe, even if that means disobeying a legal statute Was Antigone justified in her actions? → Dilemma God’s Law Creon’s Law Divine Law Human Law Unwritten Law Written Law Sacrality and piety Utility and opportunity Inviolable/curse violabe/penalty Operative forever Operative now Divine law → sacrality, piety, operative forever, inviolable or be cursed Human law → utility, opportunity, operative now, violable Plato - Dialogue between Socrates and Crito (427-399 BC) Facts - Socrates and Crito discuss the morality of Socrates’ potential escape from prison Escape would be against the laws of Athens Not escaping would lead to Socrates’ death → Crito urges him to escape Socrates’ ultimate decision: he should not escape despite the potential consequences Reasoning - Opinion of many vs opinion of one - We follow the opinion of the one man who has understanding, not the opinion of many - A good life is the ultimate goal - A good life = a just and honorable life - We must never abandon the principles of justice and virtue - A man must always do what is right → in this case, abiding by the laws of Athens - Injustice is always an evil and dishonor to him who acts unjustly - We ought not retaliate for injustice with further injustice - Cannot retaliate for imprisonment with escape - When faced with an unjust law, consequences of not following are worse than those of following Overall - A good life is equivalent to an honorable one, so if you always live like this, you are acting right - Socrates made the laws of athens, so how would it look if he went against one - Believing you have to keep the legal system in tact - Naturalists say that following an unjust law is more morally good then not following an unjust law Executive clemency - When the law is unjust, but right, then you have to plead executive clemency - Judicial deference → judges will say that we recognise law is unjust, but if we start saying that then we will lower the moral standards of society, so we say this is wrong, but we hope the kind the president will show mercy and not be punished LEGAL THEORY: THE CHRISTIAN NATURAL LAW TRADITION CREATION: THE ACT OF POSITING LAW Christian Natural Law Tradition Cognitive dissonance between the world that is and the world that ought to be - We live in the world but we know how far it is from being ideal - We are often compelled to set up standard which we cannot reach ourselves - All our actions strive towards reducing the distance between what is and what ought to be Summa Theologica – Question 90: the Essence of Law - Includes both human and divine law Law is an ordinance of reason for the common good made by those who care about our community Has to be promulgated to the public Summa Theologica – Question 94: What is Natural Law Distinguishes between speculative (what exists) reason and practical (what we do) reason - Every agent acts for an end under the aspect of good, since good has the nature of an end, all those thing to which man has a natural inclination, are naturally understood to be good - First precept of natural law: “good is to be done and pursued, evil is to be avoided” - All other precepts of natural law are based on this - Practical reasoning is what the law is based upon - Every person acts towards something that is good, there is an inclination to be good - If everything we do naturally is towards good, everything that naturally comes out of us is good Summa Theologica – Question 95: What is Human Law Man has a natural aptitude for virtue → the perfection of virtue must be acquired by man by some training - For some, parental guidance is enough training - For others, it is necessary to guide them through the force of human law - This means that human law is there for those people who cannot be simply driven by their inherent “goodness” - (sandwich model), we all have an inclination to be good, human laws are there to help us achieve natural law, so they to an extent come from it - If human law deflects from the laws of nature, it is no longer law but a perversion of law - We can disobey unjust laws because they are not laws - Basically if a human law is not food, it's a perversion of natural law, and therefore is unjust - Differs from the greek tradition because in the greek tradition we can obey an unjust law LEGAL THEORY: NEW CLASSICAL NATURAL THEORY CREATION: THE ACT OF POSITING LAW Natural Law: General Natural law tries to find an objective measure to be able to assess any human law - Is there an ascertainable measure of right and wrong? If so, by what means can we retrieve it? - All humans possess REASON → have the ability to discern good and evil, right and wrong - Free will → choose to avoid evil and pursue good Natural Law → point of intersection between law and morals 17th Century (Grotius) → secularization of natural law - Even if God did not exist, natural law would have the same content - Certain things are ‘intrinsically’ wrong, even if no God declares them General objections to natural law 1. In moral reasoning there can be no rational solutions - We cannot objectively know what is right or wrong, natural law principles are little more than subjective opinion 2. D. Hume → reason informs me only how best to achieve my desires - it cannot tell me what I ought to desire Natural Law: Finnis Dominant Reasoning of Natural Law → to establish what is really good for human persons Four main arguments 1. To note that certain goods are clearly presented to men as objectives and values ○ Goods as in being good ○ Finnis’ SEVEN VALUES OR BASIC FORMS OF HUMAN FLOURISHING → universal 2. Specify the rules of practical reasonableness that direct us towards the goods (practical principles) ○ Humans have a natural inclination towards the goods Moral beliefs are in charge of guiding us towards the goods But moral beliefs in and of themselves are not enough → we need a system of rules ○ Rules → human law There to direct us towards the common goods (7 values) 3. Show that the satisfaction of these rules requires the existence of communities with a respected authority ○ You have communities with authoritative figures who will enforce human laws in order to obtain the objective measure of universal application of the common goods Essence of natural law theory → we can REASONABLY attain this through rules of practical reasonableness This is done by intertwining of laws and morals ○ Finnis believes that act of positing law should be guided by morals ○ According to him, natural law seeks to determine what requirements of practical reasonableness are (they are the 7 GOODS) ○ Community is needed to achieve the common good, we all have inclination, but to reach it, we need the community 4. Investigate the legal obligation in the moral sense benefiting from authority ○ We have to investigate the legal obligation in moral sense ○ Making sure the human laws actually serve the purpose of reaching the goods ○ Is the authority actually doing a good thing? Are the laws actually good? ○ If rulers use their power to go against the common good, they do not have authority → unjust law is not law However you have to uphold these laws because otherwise it will do worse to the common good Aristotle’s and Aquinas’ methodology + Finnis - Nature → Capacity → Activity → Objects - Human nature gives use certain capacities, those capacities allow us to take action, this action allows us to reach certain ends in life - Finnis Lens - Human being have a natural inclination to in act accordingly to common goods - This inclination can only be activated via communities and human law The act of posting law should be guided by morals Morals come from objective reasonableness ○ Not made on a whim, convention, or mere ‘decision’ Natural law seeks to determine what the requirements of practical reasonableness really are ○ So as to afford a rational basis for the activities of communities (legislators, judges, citizens) A law may suffer from many defects If rules use their authority to go against the common good, they lack authority Unjust laws are not law, except if by not obeying you do more harm to the common good, and upkeep the legal system. ○ So we should still follow them even if they aren’t “good” if disobeying would be even less “good” Creates a moral obligation based on the desirability of not rendering ineffective the just parts of the legal system Naturalists think that anything that goes against good, is bad in itself LEGAL THEORY: NEW POSITIVIST LAW THEORY OBLIGATION: HOW LAW AFFECTS AND DETERMINES ACTIONS Hard positivism Concepts: Three doctrines in the utilitarian tradition - Complete separation of law and morals - “Law is as it is” instead “law as it ought to be” - This is the law, deal with it - Analytical study of the legal concepts - Imperative law theory → sovereign is the supreme ruler of laws, we have to accept what they say - - Law is a command → Hart disagreed with this Never denied that morals played a significant role in the development of laws and theories - But NOW they should be separate Two dangers → Hart's criticism on hard positivism (Hard positivists don't actually think this) - Law and its authority may be dissolved in man’s conceptions of what law ought to be - This means that law could lose its authority if men start to think about what law should be instead of what it is. - Law may supplant morality as a final test of conduct and so escape criticism - Hard positivists think the law stands above morality, meaning that you cannot criticize it - Hart critiques this idea saying that if we take the law as it is, we have to be open to criticism from what the law ought to be, which comes from morals - Hart takes this criticism and applies it to the hard cases They never denied - Development of legal systems had been influenced by moral opinion - The content of many legal rules mirrored moral rules or principles - Hard positivists see how morals were intertwined in the past, but believe they should be separated - That, by explicit legal provisions moral principles might at different points be brought into a legal system and form part of its rules, or that courts might be legally bound to decide in accordance with what they think just or best - Never deny that some laws will inevitable be moral laws, but when these form part of legal rule, no longer part of moral laws, they are legal, they are laws Overall - Judges are drawing out of the rule what is latent within it → they do not make new laws - Proof that the principles by which we evaluate or condemn laws are rationally discoverable, leaved untouched the fact that there are laws which may have any degree of iniquity or stupidity and still be laws - If we are going to criticize the law, it should be criticized from a legal standpoint - Laws may be law but too evil to be obeyed - An unjust law will still be law, because law and morals are different - However, when the law is too evil to be obeyed, you can and must disobey it - This is where Hart's idea that laws and morals should be separate from the idea of being able to critique a law comes in. By being able to critique a law through morals, one can see if it is too evil to be obeyed - Making the distinction between laws and morals allows us to better understand now to face the morally bad laws - Law is a social construction → supersedes custom and rests on it - Whilst natural law theorists believe that law comes from within us and is a natural construct, soft positivists see it as a social custom which superseded the custom it rests upon - Once a legal system is established, it is above the custom from which it comes from - Not everything that is moral needs to be legal, not necessarily everything that is legal needs to be moral - everything legal is moral and positivism will say not necessarily everything that’s legal needs to be moral (separation between laws and morals because if not legality will escape from any sort of criticism) => we’re allowed to criticize human law from the outside because they’re not the same A system of primary and secondary rules - A law is a system of primary that direct and appraise conduct together with secondary social rules about how to identify, enforce, and change the primary rules Primary rules: rules of behavior Secondary rules: rules about rules - Hart says that you need BOTH of these for a system of rules to be a legal system, howevering having JUST this is not sufficient for one Defects → about systems of rules that contain only primary rules 1. Uncertainty (about what the law/the rule is) This is the defect that he explains as what system of merely primary rules face There is no way to settle disputes → no systematic way for resolving disputes HOWEVER If there is a secondary rule that says what counts as a rule or who gets to decide this, then we have some way to figure out the rules 2. Staticness: a system of merely primary rules is static Talking about how rules change If you only have primary rules, the only way the rules will change is if you get everyone to agree on new set of rules ○ So the rules will change very slowly Same goes for getting rid of old rules, it will take a long time and needs agreement HOWEVER if there is a system of secondary rules where there is a rule for how to change the rules, then its possible to change the rules instantly This defect is about the fact that the laws or rules can only change slowly, can't change quickly or deliberately 3. Inefficiency We cannot agree if a rule has been broken or not even if that rule is in place without secondary rules A dispute can arise is a rule has been violated if we only have primary rules ○ There is no system in place with secondary rules that would put police,judges,juries, etc. in place to determine if a rule has been broken There is an inefficiency in determining if rules were violated HOWEVER, if there were secondary rules there would be a mechanism in place Remedies - The point is that hart thinks there are specific kinds of secondary rules that will arise in order to solve/remedy the defects Uncertainty → Rule of Recognition We don't know what the law is There is a secondary rule that says what the rule is going to be → basically the constitution Rule of recognition is the MOST IMPORTANT type of secondary rule ○ It's a rule that recognises what other rules count as rules in the system Issue with this rule: the constitution itself is not valid, it is only accepted Staticness → Rules of change Problem where we can change the rule quickly or deliberately, so we need a rule that tells us how we can change the rules ○ E.g. A rule that says congress can pass/amend rules in this way (power conferring rule) Rules of change = A secondary rule that tells us how to change the rules They will also sometimes allow the community under certain procedures to change secondary rules Inefficiency → Rules of adjudication How do we determine what the facts of the case are, how do we tell if a rule is broken The idea of obligation - Social pressure behind the rules is the primary factor determining whether they give rise to obligations Difference between was obliged and had an obligation → 2 possibilities of being concerned with the rules - External POV: as an observer who does not himself accept them → “i was obliged to do it” - Internal POV: as a member of the group which accepts and uses them as guides to conduct → “I had an obligation” - Hart criticizes that if the law is a command, people will be less likely to follow it and will criticize it. - The way he views it is that it is not necessarily a command, but rather a social pressure that it will give rise to following the law The hard cases - Hart thinks in extremely hard cases, that is when a judge can tap into morals - Reasoning is that these judges who have had a long legal career, won't follow arbitrary morals but legal morals - There should be strict interpretation of the law through what is in the law - Sometimes morals can be added to this - Hart always mentions discretion (judicial) and extra legal principles Law and adjudication are political - So is legal theory. There can be no “pure” theory of law: a jurisprudence built only using concepts drawn from the law itself is inadequate to understand law’s nature. Its value lies in understanding our culture and institutions and in underpinning any moral assessment of them. LEGAL THEORY: LIBERAL LEGAL THEORY – DWORKIN INTERPRETATION: HOW WE INTERPRET THE LAW MAIN POINTS → 1. Law doesn’t rest on SOCIAL FACTS ALONE but it is ultimately grounded in consideration of POLITICAL morality as well as INSTITUTIONAL LEGITIMACY 2. Individuals can have rights against the state that are prior to the rights created by explicit legislation. 3. Integrity of the law ○ Believes in interpretation that is inherent in law, unlike Hart ○ Judges should not exercise discretion and apply legal principles BUR RATHER they must interpret the law in its best possible light ○ Believes that interpretation should stem from legal principles and moral values 4. Law is structured by a coherent set of principles about justice, fairness, and procedural due process Distinguish legal principles from legal rules: Both point to a particular decision about legal obligation in particular circumstances BUT they differ in the character of the direction they give: ○ Rules are applicable in all-or-nothing ○ Principles incline in a decisions one way, though not conclusively, and they survive intact when they do not prevail Principles always survive unlike rules ○ Principles are binding → on their own or can be extrapolated from present laws ○ Judges perform their role appropriately when they attempt to find answers that cohere with the principles that justify the law generally considered relevant to the questions they face. Interpretation of the Law: We are all subject to law’s empire Law is an interpretive concept Comprehensive interpretation of legal practice → the interpretation has to fit into the best legal system, based on past decisions and legal principles. (Chain novel example) Law as integrity asks judges to assume that law is structured by a coherent set of principles about justice, fairness and procedural due process. ○ It asks them to enforce these in the cases that come before them, so that each persons’ situation is fit and just according to the same standards ○ Unifies the idea of justice ○ Justice according to us has to be a standard and this is done by applying the same legal standards and principles to everyone Helps with attaining legal certainty = sam applicability of law to everyone = justice = hence important to paint the law in its best light Dworkin's Principles Justice → the right outcome of the political system Fairness → right structure Procedural due process → right procedures for enforcing rules and regulations the system has produced Law as integrity → unites jurisprudence and adjudication, the consent of law depends on the refined and concrete interpretation of the legal system since it began Example in his Chapter 7 Chain novel example: Christmas Carol ○ He uses this examples because there are 2 concepts we need to consider → concept of fit/dimension of fit Need to look at previous precedents and apply something similar that helps recognize those past principles + judgment must be similarly interpreted = CONSISTENCY The interpretation must flow throughout the legal history and it must FIT ○ IF THERE is more than one interpretation that FITS This is the SECOND DIMENSION When there is multiple possible ways to interpret There needs to be JUSTIFICATION (second element) which is the best interpretation In addition, we need to look at the future - which will make the work in progress best Hercules ○ A judge of superhuman intellectual power and patience who accepts law as integrity Who will learn to accept law as integrity He would be a very careful judge, a judge of method We must not suppose that his answers to his questions will define law Because law as integrity consists of in an approach in QUESTIONS rather than ANSWERS Law as integrity It asks judges to assume the law is structured by justice, fairness, and procedural due process In practice ask judges to look at cases before them and apply them so that each person situation is fit and just based on the standards ○ Helps with legal certainty because we apply principles to all the people, to solve their situations ○ Each persons case is decided according to the same standards Wants to unify idea of justice This ties back to the fact that he wants the law to be painted in best light possible to uphold legal system ○ All this is for him because he wants a certain and coherent legal system Extra In hard cases the right answers have to be hunted by reason and imagination. But to say this is different from whether it can be demonstrated they are right. Most often they cannot be proven right, in the strict definition of the word. - Never claims that there is one right answer - The one that fits best in the legal system is the best answer - But most of the time they cannot be proven to be right = LIMITATION OF DWORKIN DEBATES → Hart Fuller - There is a separation of laws and morals - Law has an ‘inner morality’ that imposes a minimal morality of fairness - To Fuller: can't avoid evil laws ‘Morals’ appear to be procedural guides to effective lawmaking. They do not establish - To Hart: not clear whether the distinction between law and morality ‘is’ or ‘ought to be’ fairness, excluding evil regimes - Hart - - Dworkin Judges are within bounds to legislate on the basis of RULE OF LAW In the penumbra, in contrast to the core where law is certain, judges have to EXERCISE DISCRETION and make law in accordance to what they believe is MORALLY best Judges decide contested points of law as an extra legal space which judges’ own views as to right and wrong and not the law, will determine their decisions Finnis - In assigning the right label to the things men do, positivism seems to lose all interest in asking whether men ARE DOING THE RIGHT THINGS’ To Hart: on one hand, law creates a moral duty of obedience; on the other, there is a moral duty to do what is right and decent - - Judges work from A SET OF PRINCIPLES that they use to formulate judgements. - Those principles form the basis or can be extrapolated from present rules Judges perform their role appropriately when they find answers that cohere with PRINCIPLES that best justify the law generally considered relevant to questions they face. - This way judges will show law in its BEST MORAL LIGHT Dworkin Human law needs to be guided by MORAL PRINCIPLES Moral principles are a matter of OBJECTIVE REASONABLENESS - Law is a SYSTEM OF RULES AND PRINCIPLES Moral principles are the result of POLITICAL CONVENTION, depending on how that society has decided to interpret those principles CRITICAL LEGAL THEORY Purpose: to challenge the universal rational foundation of law: - The law is not an autonomous discipline, it can never be independent from politics and morality. - The law is not a coherent body of rules and doctrines; it is uncertain, ambiguous, and unstable - The law is not rainotal; it reproduces political and economic power - The law is neither neutral or objective Realism (1920 - 30s) - Two schools: American and Scandinavian - In common: they reject the conflation of law and morality; distrust absolute values such as justice - Although realists are considered to be positivist because of their preoccupation with the law “as it is” and their obsessive pragmatism and empiricism, they present an assault on positivism; against the formalist, against treating law as an inert phenomenon. American Scandinavian Pragmatism (“law in action”) Attack on the metaphysical foundation of law - Rule-skeptics Metaphysician-skeptics Immersed in judicial process Embrace whole legal system The importance of political and moral intuition about the facts of the case Judicial decisions intermediate cases are influenced by the judge’s political and moral conviction not by legal considerations (aim rules to be more fact-specific) Law as an engine, “having purposes, not values in itself” (A technology rather than a “philosophy” Behaviourist view of law: measurement of legal and judicial behavior: outward manifestations of mental processes. Critical Legal Studies 1970s Critical Legal Studies: 1970’s latter versions of the American realist movement - It sought to challenge the injustices defined in legal doctrine, adopting an interdisciplinary approach - Law as problematic: it reproduces the oppressive nature of society - Law is a form of “hegemonic consciousness”. Social order reflects the arbitrary interest of the dominant elite. → One superior sort of being, it connects to law as problematic bc law will favor the elite because of the hegemonic consciousness. - Principle of indeterminacy: law isn’t a system, able to resolve every conceivable problem. Law as a form of advocacy Principle of anti-formalism: there isn’t an autonomous and neutral mode of legal reasoning. Legal reasoning is reduced to political debate Principle of contradiction: legal doctrine represents opposing points of views. Legal argument cannot rely on legal doctrine Principle of Marginality: law isn’t a decisive factor in social behavior. Social life must be controlled by norms exterior to the law. Feminist legal theory - - - Liberal feminism: perceives individuals as autonomous, rights-bearing agents, and stresses the value of equality, rationality and autonomy - Men and women are equally rational; there ought to be same opportunities to exercise rational choices - Battleground: institutional framework of discrimination (e.g employment) - Women tend to be excluded from the public sphere where political equality is realized Radical feminism: perceives law as a masculine edifice that produces male oriented results and reproduces male dominated relations. - Some men have defined women's different, women can ever achieve equality - Reject the liberal illusion of the neutrality of the law - Expose the gender implication of rules and practices that might appear to be impartial or neutral Feminist legal theory: - Postmodern feminism: central theme: the maleness of law. Three feminist legal methods: - - “Asking the woman question”: exposes the gender implication of rules and practices “Femenist practical reasonsing”: challenges the legitimacy of the norms that claim to represent the community (rape and domestice violence cases) - “Consciousness-raising”: seeks to understand and reveal women’s oppression. Difference (or cultural) feminism: reveals the unstated premises of the law’s substance, practice and procedure by exposing the various kinds of discrimination implicit in the law - Liberal feminism undermines the differences between men and women - The morality of caring and nurturing defines an essential difference between the sexes - Women’s moral values tend to stress responsibility; men emphasize rights - Women look to context men appeal to abstraction notions of justice Critical race theory 1989 Critical Race Theory: 1989: primary motivation: expose the law’s pervasive racism - The law’s formal constructs reflects the reality of a privileged, elite, male, white majority: - A racial minority is condemned to the margins of legal existence.