OCTOBER Legal Theory Notes PDF

Week 4 (Continued) 1 / 10 / 2024: Legal Positivism (Continued (Continued)): Law / Morality: Conscientious objectors = subjects who refuse to obey the certain “dictates” of positive law due to moral objections ○ Some might have p...

Week 4 (Continued) 1 / 10 / 2024: Legal Positivism (Continued (Continued)): Law / Morality: Conscientious objectors = subjects who refuse to obey the certain “dictates” of positive law due to moral objections ○ Some might have public sympathy (majority support) Ex.) People who reject conscription due to religious reasons ○ Others don’t have so much public sympathy (no majority support) Ex.) Medical practitioners who refuse to perform abortion Majoritarian principle: Some laws are influenced by public opinion ○ Ex.) Nazi Germany applied the “living law” according to volksgeist (the spirit of the people), following the Freirechtsschule’s (school of free law) principles Freirechtsschule’s main principle (Radbruch’s idea): Laws have to be applied based on what is felt by the people (public opinion) Radbruch came up with this idea to allow for superior principles that can’t be rejected (?) ○ Ex.) Nuremberg Trials: Concluded that natural law couldn’t approve the validity of Nazi laws ○ Ex.) Volkspolizei Trials: Berlin Wall guards argued that they shot people because they were ordered to do so ○ Ex.) Nazi Informer Case HOWEVER, the minority can be opposed to laws designed by the public majority Types of morality: ○ Public Morality Pertains to the widespread conceptions of society as a whole Ex.) Environmental considerations (not related to religion) Doesn’t refer to religious beliefs ○ Private Morality Pertains only to individuals, NOT society Ex.) Vegetarianism ○ Vegetarians might support laws that ban killing animals, but this doesn’t have widespread public support Is it the Law’s Business? (to dictate rules about life and aspects of morality) ○ Ethical State: A state that tries to control private morality Opposite of Libertarian States  ○ The right to life: abortion? ○ The right to due: euthanasia? ○ The right to self-determination: assisted suicide? According to Nature: ○ Should law reflect human nature (the attitude of human beings)? ○ Trolley Problem: Utilitarians (Bentham, Hume, etc.) would pull the lever to kill 1 person and save 5 people Deontologists / Kantians (Kant, Arendt) WOULDN’T pull the lever Because humans should be seen as ends, not means We can’t calculate the value of human life ○ Anna Arendt: When people become expendable (when some people can be sacrificed for others, this is the beginning of evil ○ After 9/11, the Bundesrat passed a law where the German air force was obliged to shoot down planes that were confirmed to be hijacked Unconstitutional? If human dignity is untouchable, then we can’t say that the lives of people on the plane are less important than the lives of people on the ground L. L. Fuller: Wants to separate religious beliefs / divine support from natural law Wants to prove that law is nevertheless INFORMED by morality and CAN’T be separated from it Characteristics that make laws just: ○ “Principles of Legality" (moral standards under natural law) Inner Morality of Law: (not about the content of the law, but its inner nature) Sufficient generality ○ Laws must be general enough to be interpreted Public promulgation ○ Laws must be transparent Prospectivity ○ Laws must NOT be applied retrospectively People can’t be punished for past actions using present laws Minimal clarity and intelligibility ○ People should be able to understand laws and comply with them Morality of Aspiration: Non-contradiction  ○ Laws must not be contradictory Relative constancy ○ Laws must not be changed too frequently Possibility of compliance ○ Laws must impose things that are POSSIBLE Congruence: Declared rules / official action ○ The government’s actions must be CONSISTENT with its laws ○ Without these principles, laws would be inherently unjust H.L.A. Hart’s Objection: These principles aren’t moral principles; they’re principles of means-ends efficiency ○ He accuses Fuller of trying to turning positive law to natural law ○ Hart says that the Inner Morality of Law is based on the form of the law, not its contents Critiques: People say that applying natural law leads to discretion and arbitrariness ○ Relativism ○ Utilitarianism ○ Communitarianism / socialism ○ Critical theory ○ Legal positivism The Ultimate Divide: A Matter of Ends: Kantianism: How a situation OUGHT to be ○ Intentionality: Actions are judged based on their compliance with duties Duty = Compliance with ethical law (Kant’s categorical imperative) An action must be good “a priori” (even before it’s performed) ○ Unconditional and universal ethical system ○ Formal, deontological, and anti-sentimentalistic Utilitarianism: How a situation IS ○ Consequentialism: Good is identified with utility (how beneficial the consequences are) An action is good if it leads to the most happiness for the most people Happiness = the presence of pleasure and the absence of pain Legal Positivism VS Natural Law (Arguments): Legal Positivism: Applying the law AS IT IS ○ Confirms the certainty of laws When laws are written down, they are certain and don’t need to be discussed  ○ More pragmatic and rational Natural Law: Applying the law as it OUGHT TO BE ○ Allows judges to have the “creative” power of interpreting laws They come up with new laws, in a sense Arguments Against Legal Positivism: ○ Is it truly value-free? The value is objectivized, but it isn’t removed from law ○ It’s ideological Legal positivism has been used as an instrument by radicalists throughout history Ex.) Jacobins during the French Revolution ○ Robespierre used almost the same exact wording as positive law thinkers Ex.) Bolsheviks during and after the Russian Revolution ○ Validity is NEVER neutral Positivists say that a law is valid if it’s set by a valid authority through a valid means This is still DISCRETIONARY ○ Authority ⇒ Discretion ○ Law / Morality: How to fill the gap? It’s necessary to evaluate the laws “a priori” Positivization of Natural Law: Natural Law as a Constitutional Foundation: ○ Declaration of Independence (1776) “...to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them the separation…” “...all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” All of this is an adaption of John Locke’s ideas ○ Some rights are natural (endowed by God) Governments are responsible for realizing these rights The government becomes illegitimate when it fails to realize these rights Because these principles are superior to the government ○ France’s Declaration of the Rights of Man and of the Citizen (1789) “Men are born and remain free and equal in rights” “The goal of any political association is the conservation of [these rights]...” “The law is the expression of the general will” The people will decide their regime People’s sovereignty expresses itself through the law  The Fall of Natural Law Theories: ○ Walt Whitman’s Poem: Leaves of Grass Attacks President Buchanan for not learning the politics of nature Nature remains the teacher for governors ○ It reveals principles like amplitude, rectitude, and impartiality A state’s objective is to fulfill nature’s objectives ○ Enlightenment and Romanticism Both ideas were FOR legal positivism (AGAINST natural law) Enlightenment: Sees law as a science Romanticism: Sees law moments of nationalist movements ○ Legal positivism The parliament is the “protagonist” (center of the state) “Through its representatives, the people sympathized the will of the nation, transforming it into law” - Prof. Brozetti Statute law is the only superior source of legality Because the law is the answer to what was debated in parliament In the past, the constitution was flexible (not rigid) and could be amended as any other law, which allowed for unethical actions Today, constitutions are rigid and much harder to amend ○ Anti-moralism ○ Skepticism Post-WW2 Revival of Natural Law Theories: ○ Universal Declaration of Human Rights (1948) Article 1: “...human rights…conscience of mankind…” Human rights should be protected by the rule of law If national governments fail to protect these human rights, it’s the duty of the people to rebel In the end, both natural law and legal positivism claim to be superior, but it all depends on cultural, geographical, and historical contexts in each country ○ Ex.) Polygamy is illegal in some countries but legal in others In some Arab countries, it’s considered to be natural ○ Uncontacted Tribes: People live in organized societies completely isolated from the rest of the world Should we barge into their societies and transform them completely in the name of universal rights? Or should we leave them alone since they express a different assumption of natural law? If so, can we actually claim that human rights are universal? Human rights law covers public and private law  Prof’s Discussion Question: What is more absolute, natural or positive law? POSITIVISM AND FIDELITY TO LAW — A REPLY TO PROFESSOR HART (by Lon Fuller) Introduction Fuller’s Criticism of Hart’s Approach Fuller focuses on the "morality of order," which he believes is essential to the creation of law, a concept Hart overlooks. Fuller rejects Hart’s approach to statutory interpretation, arguing we should look for the broader purpose of legal provisions rather than the specific meaning of individual words. Hart’s Contribution to Legal Philosophy Fuller acknowledges Hart’s influence, noting that his work brings a new depth to legal positivism, beyond previous thinkers like Bentham, Austin, Gray, and Holmes. Hart separates "what is" from "what ought to be," refusing to merge law with morality and advocating a clear distinction between them. Fuller finds Hart’s insistence on this separation somewhat perplexing and internally inconsistent. Contradictions in Hart’s Argument Fuller notes a potential contradiction: at times, Hart presents the law-morality distinction as a fact we must accept, but at other times, Hart appears to defend it as an ideal we should strive for. Fuller clarifies that while Hart’s position might seem contradictory, it is not necessarily so. Hart’s distinction between law and morality could serve both "intellectual clarity" and "moral integrity." Fuller’s Critique of Positivist Theories Fuller argues that positivist theories like Austin’s definition of law distort the reality they claim to describe. He believes that accepting such definitions uncritically can be dangerous, as human affairs tend to make what is "accepted as real" into something that becomes real. A More Meaningful Debate on Law and Morality Fuller appreciates that Hart’s argument opens the door for a more fruitful exchange between those who disagree on the law-morality distinction.  He criticizes previous positivist definitions of law as "command of a sovereign" or "prediction of future state force" as too rigid and dismissive of the broader purposes law might serve. Frustration with Positivist Theories Fuller expresses frustration with positivists who claim their theories merely describe reality but fail to acknowledge that their definitions also have prescriptive power, shaping how people think about law. He praises Hart for introducing the concept of "fidelity to law," which makes the debate about law’s purpose more productive. Defining Fidelity to Law According to Fuller, Hart’s essay correctly identifies "fidelity to law" as a central issue. Fuller argues that law, to deserve loyalty, must represent a human achievement. It cannot merely be a repetitive pattern of state behavior. It should be something we can approve of, even when specific laws fall short. Fuller’s Main Criticism of Hart’s Essay Fuller believes Hart fails to fully grasp the implications of the expanded debate on fidelity to law, particularly when discussing the Nazi regime and the philosopher Gustav Radbruch. Hart assumes that something called "law" persisted under the Nazis, even though Fuller feels Hart doesn’t explore this issue deeply enough. Fuller’s Disagreement with Hart on the Nazi Example Hart argues that the decision to disobey Nazi laws involved a moral dilemma, where the ideal of fidelity to law was sacrificed for greater goals. Fuller believes Hart’s understanding of the situation is flawed and plans to address these mistakes later in the article. 1. The Definition of Law Hart’s Alignment with Legal Positivists Hart positions himself within the positivist school of thought, aligning with figures like Bentham, Austin, Gray, and Holmes. He acknowledges that these thinkers differ in their definitions of law but sees their general approach as unified in avoiding a fusion of law and morality. Different Definitions by Austin and Gray  Austin defines law as the command of a sovereign, emphasizing the highest legislative authority. Gray, on the other hand, sees law as rules made by judges. For him, statutes are merely sources of law, becoming law only through judicial interpretation and application. Fuller highlights that, from the perspective of intellectual clarity, either definition could work if the goal is simply to define law clearly and distinctly. Fidelity to Law and the Role of the Judiciary However, Fuller argues that when considering the ideal of fidelity to law, the judiciary's role in government becomes crucial. He points to contemporary debates (such as proposals to abolish the Supreme Court), suggesting that these definitions of law deeply affect how people perceive the judiciary’s authority. Fuller hints that those who propose radical changes, like eliminating the Court, are influenced (perhaps unknowingly) by these different conceptions of law. Bentham vs. Austin on Constitutional Limits Another key disagreement Fuller points out is between Bentham and Austin regarding constitutional limitations. Bentham allows for the possibility of a constitution limiting sovereign power, while Austin considers such limits to be impossible or absurd. Fuller raises a hypothetical constitutional crisis, such as the clause preventing states from being deprived of equal representation in the Senate without their consent. This, he suggests, shows how the definition of law directly affects our understanding of fidelity to law in times of crisis. Inadequacies of the Positivist School Fuller criticizes the positivist school for offering little guidance during crises. Merely stating that law is distinct from morality doesn't help people understand their obligation to fidelity to law. He suggests that Hart’s thesis is incomplete, as it doesn't fully address the implications of fidelity to law in difficult times. 2. The Definition of Morality Positivists’ Focus on Law vs. Morality ○ Fuller argues that positivists, like Hart, are primarily concerned with preserving the integrity of the concept of law, focusing heavily on its definition.  ○ In doing so, they tend to exclude other influences—mainly morality, which is seen as a vague, undefined collection of all non-legal standards, from conscience to cultural norms. Austin and Gray's Broad Exclusion of Morality ○ For thinkers like Austin and Gray, the term morality encompasses virtually every external standard of behavior not codified as law. ○ These can range from religious beliefs to common decency or cultural prejudices—essentially lumping all extralegal notions of "what ought to be" together. Hart’s Treatment of Morality in Law ○ Fuller points out that Hart continues this tradition, seeing morality as influencing only the penumbra of law—the gray areas or borderline cases where interpretation is needed—while leaving the "hard core" of law untouched. ○ However, Hart later acknowledges that not all morality is good, introducing the concept of immoral morality, which suggests that even the worst societies can have coherent but evil moral standards. The Dangers of Infusing Morality into Law ○ Hart warns that if we attempt to infuse more morality into law, we risk accidentally integrating an immoral morality that could guide judicial decisions in harmful directions. ○ Fuller sees this as Hart’s attempt to remind those pushing for more morality in law that not all moralities are just. Fuller’s Rejection of Hart's Assumption ○ Fuller strongly disagrees with Hart’s underlying assumption that evil aims can have the same coherence and inner logic as good ones. ○ He argues that goodness and coherence are more naturally aligned, and when people are forced to justify their actions, they are generally pulled toward goodness. The Inadequacy of Positivism in Preventing Immoral Morality ○ Fuller questions whether positivism is the best defense against the danger of immoral morality seeping into law. ○ He criticizes the positivist position for oversimplifying the issue, leaving the real dangers of an unjust legal system unaddressed. Judges and the Law-Is-Law Maxim ○ Fuller poses a question: if a judge wanted to impose a morally wrong decision, would they openly appeal to a "higher law," or would they more likely hide behind the positivist "law is law" maxim to justify their ruling? Law as a Refuge in Oppressive Regimes ○ Fuller and Hart both come from majority groups in their respective societies, but Fuller speculates about what might happen if they were transported to a country where their beliefs were considered evil.  ○ In such a regime, Fuller argues they wouldn’t fear morality being used against them, but rather that the law itself might be manipulated. However, even oppressive regimes tend to hesitate before writing outright cruelty into law, a hesitancy driven by moral concerns. The Crisis in Commercial Law ○ Fuller points out that in fields like commercial law, the danger is not too much morality, but rather the opposite: courts becoming excessively formalistic, ignoring fairness in favor of rigid interpretations. ○ This has led to commercial disputes increasingly being settled by arbitrators, who are more willing to consider commercial fairness than formalist courts. Fuller suggests that Hart’s theory, despite rejecting formalism, may ultimately encourage it. Morality in Law vs. Religious Authority ○ Fuller notes that discussions about law and morality are often sidetracked by debates, like the Catholic Church’s stance on divorce, which aren't really about law and morality but rather a conflict between two competing systems of authority—one legal, the other religious. Immoral Morality Needs More Exploration ○ While Fuller briefly addresses immoral morality, he acknowledges that this issue deserves much deeper exploration than he or Hart have provided. He’s simply offering preliminary observations. Here, Fuller is saying that positivism doesn’t offer enough protection from immoral uses of law, and the whole "let’s keep law and morality separate" approach may not prevent law from being twisted to support evil ends. He’s also warning that judges might manipulate the system by hiding behind formal legal rules rather than openly using moral reasoning. 3. The Moral Foundations of a Legal Order Hart’s Rejection of the Command Theory of Law ○ Hart rejects the command theory of law, which defines law as a command backed by force, famously remarking that "law surely is not the gunman situation writ large." ○ Hart’s position emphasizes that the foundation of a legal system is not coercion, but "fundamental accepted rules" that define lawmaking procedures. Fuller’s Expectation of Hart’s Next Step  ○ Fuller expected Hart to acknowledge that these fundamental rules derive their efficacy from moral acceptance, suggesting a potential merger of law and morality. ○ Fuller notes that these fundamental rules are not law in the typical sense, as they determine when lawmaking actions are authoritative, making the line between law and morality blurred. Hart’s Divergence from Fuller’s Expectations ○ To Fuller’s surprise, Hart doesn’t discuss the nature of these fundamental rules and instead focuses on a critique of the command theory and a perceived misunderstanding of positivism. ○ Hart argues that critics of positivism confused their rejection of the command theory with a refutation of the separation between law and morality, calling this a "natural mistake." Austin’s Struggle with the Command Theory ○ Fuller delves into Austin’s difficulty in sticking to the command theory. Austin sees the problems with the theory but refuses to abandon it because doing so would blur the line between law and morality. ○ Austin struggled with examples like laws of succession and parliamentary rules, where law appears to command itself, thus challenging the command theory’s core idea of law being an order from a superior to an inferior. Kelsen’s Basic Norm ○ Hans Kelsen takes the plunge that Austin hesitated to make, acknowledging that law is grounded in a "basic norm," which serves as the ultimate rule for determining the source of laws. ○ Kelsen’s basic norm is a symbolic concept rather than a factual one, offering positivists a way to distinguish between rules based on source and those based on acceptance and intrinsic value. The Role of a Written Constitution ○ Fuller notes that a written constitution can simplify some of the challenges of defining law, by explicitly outlining lawmaking procedures. ○ However, constitutions can also complicate matters when legislatures pass laws that manipulate the lawmaking process while staying within constitutional bounds, such as the controversial court-packing proposals from the 1930s. Planning for Fidelity to Law ○ Fuller argues that achieving the ideal of fidelity to law requires planning. This includes drafting constitutions that are simple, understandable, and grounded in a shared sense of justice. ○ Fuller advocates for keeping substantive limitations in constitutions to a minimum, suggesting that achieving substantive aims procedurally can guide people to act in the right way. Post-WWII Constitutions and Their Flaws  ○ Fuller criticizes many post-WWII constitutions for embedding economic and political measures that should belong to statutory law. ○ He believes that such constitutions undermine the realization of fidelity to law, as they enshrine divisions of opinion within the document that creates the legal system itself. Critique of Legal Positivism’s Inability to Plan for Fidelity to Law ○ Fuller expresses frustration with legal positivism for not addressing the practical and moral issues that are necessary for achieving fidelity to law. ○ He believes positivism’s focus on labeling actions rather than questioning whether those actions are right leads to a failure in planning for the moral foundation of a legal order. Fuller is basically saying, "Look, positivism is great for definitions and structure, but it falls flat when it comes to actually making sure the legal system stands on solid moral ground." He thinks positivists are avoiding the real problems, like how to build a system that’s both legally valid and morally just, and he calls for a more proactive approach to ensure laws aren't just obeyed, but are worthy of obedience. 4. The Morality of Law Itself Order vs. Good Order ○ Fuller rephrases the issue in terms of order and good order. ○ Order is simply the existence of law, whereas good order is law that aligns with justice, morality, or society’s conceptions of what "ought to be." ○ He suggests that distinguishing between order and good order is not as straightforward as it seems, even though Hart attempts to maintain that distinction. The "Morality of Order" ○ Fuller argues that even in its most basic form, order carries a moral element. ○ He illustrates this with an example of a selfish monarch who, despite his selfish aims, must maintain a basic level of consistency between his commands and his actions to create even a minimal system of law. ○ Fuller contends that this demonstrates the internal morality of law—without some moral commitment to maintaining order, even bad law cannot function effectively. Law’s Powerlessness Without Moral Responsibility ○ Fuller argues that law alone is insufficient to create order.  ○ A legal system requires not only external acceptance (the basic norms that make law possible), but also internal morality—the willingness of those in power to respect the responsibilities that come with creating and maintaining laws. ○ If these moral responsibilities are ignored, law cannot be sustained, regardless of how many commands are issued. The Neglect of Internal Morality in Positivism ○ Fuller criticizes Hart for neglecting the internal morality of law. Hart touches on the idea of justice in the administration of law but dismisses it as irrelevant to his overall argument. ○ Fuller believes this neglect is a fundamental flaw in Hart’s positivism because it overlooks the human striving required to maintain a legal system. The Inadequacy of Positivism in Addressing Real Dilemmas ○ Fuller illustrates how legal positivism fails to serve the ideal of fidelity to law in practical situations. ○ He describes the dilemma of a trial judge experienced in commercial law but frustrated by supreme court rulings that misunderstand or misapply commercial practices. ○ Positivism offers no solution to the judge’s dilemma because it insists on rigidly separating law from morality, leaving the judge without guidance on how to resolve the conflict between bad law and commercial reality. Rigid Separation of Law and Morality as a Problem ○ Fuller critiques positivism for creating a rigid distinction between law as it is and law as it ought to be, making it incapable of helping judges and legal officials who are morally conflicted by the laws they must enforce. ○ He argues that fidelity to law cannot be fully realized unless those responsible for enforcing law are also given the moral responsibility to shape law into what it ought to be. Extreme Example of Moral Conflict in the Judiciary ○ Fuller presents a hypothetical situation in which a judge's moral convictions are directly opposed to those of the supreme court and the precedents they are required to apply. ○ In this case, the judge may resort to a "wooden and literal" application of law, applying precedents without understanding their philosophical foundation—an approach positivism seems to enable but offers no real solutions for. ○ Fuller argues that such moral conflicts are less likely to arise in legal systems where law and good law are seen as collaborative human achievements, and where moral considerations play a role in the constant renewal and evaluation of the legal system. Fuller’s basically saying that law isn’t just about structure and rules—it’s got to have some moral foundation if it’s going to work in the long run. He’s taking a shot at positivism for being too rigid and detached from real human concerns, especially when judges have to deal with bad laws or misaligned systems. Fuller’s view? Law and morality need to be connected if we want a system that not only functions but actually stands for something good. 5. The Problem of Restoring Respect For Law and Justice After the Collapse of a Regime that Respected Neither The Post-Nazi Legal Dilemma ○ After the fall of the Nazi regime, German courts faced a difficult predicament: They couldn’t declare the entire dictatorship’s legal framework illegal, as that would create intolerable disruptions. At the same time, they couldn’t allow all Nazi laws to carry forward, as that would taint the new regime with Nazi corruption. ○ The informer cases—where people used the Nazi legal system to eliminate personal enemies—highlighted this dilemma. If Nazi laws were still recognized, the informers would be guiltless, despite their despicable actions. Hart’s Suggested Solution ○ Hart proposed a retroactive criminal statute to address the informers' crimes. This would punish informers for acts that were technically legal under Nazi law at the time. ○ He condemns the German courts that declared certain Nazi laws void, claiming this approach undermined fidelity to law. Fuller’s Criticism of Hart’s Position ○ Fuller questions whether Hart’s solution is truly about fidelity to law. ○ He argues that whether courts or the legislature declared Nazi laws void, the end result would still be a rejection of those laws, so the distinction seems semantic. ○ Fuller defends the German courts, asserting that their decisions do not represent a betrayal of legal principles as Hart suggests. The Nature of Nazi Law ○ Hart treats Nazi law as if it were merely bad law imposed for evil ends, but Fuller argues that this view is overly simplistic. ○ Nazi law violated the internal morality of law, which includes principles like clarity, fairness, and public knowledge.  For instance, Hitler’s government made use of retroactive statutes, such as after the Roehm Purge, to legalize what was previously murder. There were even rumors of secret laws, which undermined the very concept of law as something that should be known and followed by citizens. The "Legal Monstrosities" of Nazi Law ○ Fuller points out that the Nazi regime frequently bypassed legal forms or ignored their own statutes. ○ He emphasizes that Nazi laws, such as those allowing secret or retroactive measures, fundamentally violated the morality of law and could not be considered valid laws in any meaningful sense. The Informer Case ○ Fuller turns to the case discussed by Hart, where a German soldier’s wife informed him for criticizing Hitler. The husband was sentenced to death, although the sentence was not carried out. ○ The wife’s defense was that her husband’s remarks were a crime under Nazi laws passed in 1934 and 1938. ○ Fuller highlights how Nazi courts expanded these statutes far beyond their literal meanings, such as applying public utterance laws to private conversations. He asks whether Hart would accept the Nazi courts' interpretations of these laws as binding, even though they were fundamentally unjust. Radbruch’s Position and the Moral Dilemma ○ Fuller defends Gustav Radbruch, who advocated that when laws reach a certain level of evil, they cease to be law. ○ Radbruch understood that postwar Germany faced a moral dilemma in rebuilding its legal system, balancing the need for order and good order (justice). Hart’s Positivist Dilemma ○ Fuller critiques Hart’s positivist perspective, which presents the dilemma as a choice between an "amoral" law and a moral duty to do what is right. ○ Fuller rejects this as nonsensical, likening it to choosing between helping a starving man and being "mimsy with the borogoves" (nonsensical). ○ He argues that positivism fails to provide any coherent meaning to the moral obligation of fidelity to law, as it treats law and morality as entirely separate realms. The Need for Balance Between Order and Good Order ○ Fuller aligns more with Radbruch’s approach, where order and good order are intertwined.  ○ Restoring both law and justice after a regime like the Nazis requires addressing both the moral and legal dimensions simultaneously. ○ Fuller’s central point: Order is meaningless unless it is also good for something, and justice cannot exist without order. Fuller’s dropping some heavy truths here. He’s basically saying that positivism doesn’t cut it when a legal system, like the Nazi regime, has broken all the rules of decency and fairness. He believes the German courts were right to reject those laws, even if Hart thinks they should’ve handled it differently. Fuller’s also making the case that law and morality can’t be totally separated when you’re trying to rebuild after something as horrible as Nazism. It's about finding a way to balance order and justice to create a system that’s actually worth following. 6. The Moral Implications of Legal Positivism Radbruch’s Critique of Positivism in Pre-Nazi Germany ○ Gustav Radbruch believed that the widespread acceptance of legal positivism in pre-Nazi Germany smoothed the path to dictatorship. ○ Hart finds this accusation outrageous, but Fuller sees value in exploring whether legal positivism in Germany contributed to the Nazi rise to power. ○ Positivism had a dominant standing in Germany for decades before the Nazi regime. Figures like Austin and Gray praised German scholars for their strict adherence to positivism, rejecting any vestiges of natural law or moral reasoning in legal science. The German Legal Profession’s Commitment to Positivism ○ German jurists regarded Anglo-American common law as a messy blend of law and morality. Positivism was seen as the only scientific theory of law in an Age of Science. ○ Positivists characterized those who adhered to natural law as "naive," and by 1927, it was considered a social disgrace to embrace natural law theories. ○ Fuller argues that German lawyers were trained to accept anything labeled as law without questioning its moral or internal validity. Legal Positivism’s Role in Facilitating Hitler’s Rise ○ Hitler didn’t seize power through revolution; he used legal forms to gradually consolidate power. Fuller suggests that the legal profession offered little resistance because of their positivist mindset, which emphasized obedience to law as it is rather than questioning whether the laws were just.  ○ The Nazi regime exploited legal structures to enact retroactive laws and bypass existing statutes when necessary, leading to legal chaos that positivism couldn’t address. Fuller’s Critique of Hart’s View on Higher Law ○ Fuller suggests that if German jurisprudence had focused more on the internal morality of law, it wouldn’t have been necessary to invoke a concept of higher law in postwar cases. ○ Fuller believes that legal systems can depart so far from the morality of law that they cease to be legitimate legal systems. ○ In Nazi Germany, the complete disregard for legal forms—such as retroactive laws and secret statutes—made it impossible for the regime to be considered a true legal system. The Informer Cases and Legal Morality ○ Fuller returns to the informer cases as an example. The Nazi statutes used to justify these acts were so morally corrupt that they could not be considered law. ○ Rather than relying on a vague notion of higher law, Fuller argues that the courts could have rejected these statutes based on their disregard for the internal morality of law. ○ He notes that Nazi legal practices, such as retroactive laws and arbitrary executions, were most flagrantly disregarded in areas of law where moral standards were most violated. Fuller’s Support for a Retroactive Statute ○ Fuller agrees with Hart and Radbruch that a retroactive statute would have been the best solution to the informer cases. ○ He sees this not as a way of making unlawful acts legal, but as a symbolic break from the past and a means to isolate these abnormal cases from the regular judicial process. ○ By isolating the cleanup operation, the judiciary could return more quickly to normal, where legal morality could once again be respected. The Incompatibility of Legal Morality and Injustice ○ Fuller concludes that legal morality cannot thrive in a system detached from justice. ○ In the Nazi regime, where the ends of law were most odious, the morality of law was most disregarded. This overlap suggests that law cannot survive without striving toward justice and decency. Fuller’s breaking down how legal positivism in Germany wasn’t just a theory—it was a mentality that made it easier for the Nazis to hijack the legal system without much resistance. The obsession with law as law, without asking what law ought to be, left the legal profession vulnerable to manipulation. Fuller’s not down with Hart’s dismissal of the courts rejecting Nazi laws either—he’s all about grounding the rejection in the internal morality of law rather than some abstract notion of higher law. He’s dropping truth bombs on how law has to be connected to justice if it’s going to survive in a meaningful way. 7. The Problem of Interpretation: The Core and the Penumbra Hart’s Doctrine of Core and Penumbra ○ Fuller emphasizes the importance of understanding Hart’s theory of "the core and the penumbra" correctly, as it presents a novel theory of judicial interpretation. ○ Hart’s theory is not simply about easy and hard cases in legal interpretation; it’s based on a theory of language. ○ Core meaning: Words in legal rules, such as "vehicle" in the context of park regulations, have a standard instance or core meaning that remains consistent across contexts. Judges apply the rule to these core cases without creative interpretation, following the law as it is. ○ Penumbra: Words also have a penumbra of meaning, which varies depending on context. In penumbral cases (e.g., does a tricycle count as a vehicle?), the judge must interpret the rule’s purpose and make a decision based on what the law ought to be. Fuller’s Critique of Hart’s Focus on Words ○ Fuller finds Hart’s focus on the meaning of individual words problematic, arguing that most interpretation deals with entire sentences, paragraphs, or texts, not just single words. ○ The idea of a "standard instance" for a single word, like "vehicle," fails because the context is always important. Fuller argues that the judge’s task is more about understanding the purpose of the law than merely applying words to core cases. For instance, a noisy automobile would always be excluded from a park, but this is because we understand the aim of the law (to preserve peace), not because we’re just applying the literal word "vehicle." Purpose Over Words ○ Fuller uses an example about a truck being placed as a memorial in a park. Is it a vehicle under the rule banning vehicles? This, Fuller suggests, cannot be answered by focusing on the word "vehicle" alone. ○ He believes judges decide based on the purpose of the rule, not by identifying a word’s core meaning. Fidelity to Law and Hart’s Theory ○ Fuller challenges Hart’s implication that without accepting his theory of core and penumbra, we can’t have fidelity to law.  ○ Fuller argues that effective interpretation of law doesn’t rely on isolated words but on understanding the purpose and structure of the statute as a whole. Illustration: Statute on Sleeping in Railway Stations ○ Fuller gives an example of a statute making it illegal to sleep in a railway station. Two men are brought before a judge: One man gently dozed off while waiting for a train at 3 AM. The other man brought a blanket and pillow to settle down for the night. ○ Fuller asks whether the judge’s decision (punishing the second man but not the first) violates fidelity to law. This scenario shows that the interpretation of the word "sleep" depends on understanding the purpose of the law, not just its core meaning. The Role of Hypothetical Cases in Interpretation ○ Fuller stresses that hypothetical cases are helpful in understanding the broader meaning of statutes. ○ He explains that judges do more than categorize cases based on words—they must understand the intentions behind the law. ○ In cases where statutes use ambiguous words like "improvement", the interpretation relies on knowing what the law is trying to accomplish rather than sticking to a word’s core meaning. Hart’s Theory vs. Purpose and Structure ○ Fuller argues that Hart’s theory reduces judicial interpretation to a kind of cataloging process, where a judge simply decides whether a case fits under a rule’s core or penumbra, like a librarian shelving books. ○ However, the judicial process is much more complex—judges don’t just label cases; they must solve problems and interpret laws based on their purpose. Critique of Hart’s Theory of Language ○ Fuller criticizes Hart’s underlying theory of language, which he calls the "pointer theory of meaning". This theory assumes that words point to fixed, inert meanings detached from context or purpose. ○ Fuller contrasts this with the views of Wittgenstein, Russell, and Whitehead, who argued that words shift and change meaning based on their context. ○ For Fuller, Hart’s theory ignores the essential role of purpose and structure in language, making it unsuitable for understanding legal interpretation. Fuller’s critique is crystal clear here: Hart’s theory of core and penumbra oversimplifies how judges interpret laws. Fuller’s saying that you can’t just treat legal interpretation like putting books on a shelf based on some fixed meaning of words. Instead, judges have to think about the purpose behind the law and how it’s meant to function in society. He’s coming for Hart’s whole language theory, too, pointing out that words change depending on context, and you can’t just rely on a rigid meaning. It’s all about understanding the big picture. 8. The Moral and Emotional Foundations of Positivism Positivism’s Fear of Purpose ○ Fuller argues that the central characteristic of legal positivism is a fear of purposive interpretation of law. This fear, he suggests, can be seen in many positivist thinkers, with the exception of Bentham, who embraced purposive thinking. ○ While Fuller thinks this fear of purpose can become excessive or morbid, he acknowledges that it is not entirely unjustified. The fear arises from the concern that purposive interpretation could lead to unintended consequences. Fidelity to Law and Purpose ○ Fuller believes that fidelity to law demands a balance. Judges must take on a creative role within the limits of the law’s structural integrity, but they must not push beyond those boundaries. ○ He emphasizes that laws and rules have an inherent structure—whether explicit or implicit—that gives them meaning and integrity. This structure should guide judges in their interpretations, preventing them from interpreting laws too freely or in a way that distorts the original intent. Positivism’s Real Concern: Freedom and Dignity ○ Fuller suggests that positivism’s true concern isn’t anarchy, but that purposive interpretation could lead to an erosion of human freedom and dignity if pushed too far. ○ He uses the example of a community where a law forbids playing golf on Sunday, which is an inconvenience but not an affront to personal integrity. However, if the law required attendance at church or forced participation in religious activities, it would become a serious violation of human dignity. Fuller highlights the danger of pushing laws that serve a purpose too far into coercive territory, stripping individuals of their autonomy. The Problem of Imposing Purpose ○ Fuller mentions that purposive interpretation can lead to situations where "this you may not do" becomes "this you must do", but with the expectation that people comply willingly. ○ This issue is particularly relevant in the context of modern economic regulations and administrative practices, where government officials  may use prehearing conferences or similar mechanisms to pressure compliance with certain laws or policies. Positivism’s Ethical Neutrality ○ Fuller praises Hart for contributing to legal philosophy by removing the pretense of ethical neutrality from positivism. ○ He argues that positivism’s claim to be ethically neutral has been an obstacle to meaningful discussions in legal philosophy, and Hart’s acknowledgment of the moral dimensions of legal interpretation opens the door for deeper conversations about law’s role in society. Fuller’s Respect for Hart’s Contribution ○ Despite his many disagreements with Hart’s views, Fuller recognizes that Hart has made an enduring contribution to legal philosophy by bringing the issue of fidelity to law and purposive interpretation into clearer focus. ○ Fuller believes Hart’s work opens the way for legal philosophy to tackle more pressing social issues, such as the balance between individual freedom and the coercive power of law. Fuller’s acknowledging that positivism has a legit fear of how purposive interpretation can lead to coercion and the erosion of freedom. He gets that laws need structure, and judges shouldn’t just interpret them however they feel, but he’s also saying you can’t ignore the moral and emotional side of things. And even though Fuller’s been going toe-to-toe with Hart this whole time, he’s giving Hart mad props for getting rid of the ethical neutrality pretense in positivism. Now, they can really get to the core issues. Overall Summary: I. The Definition of Law Fuller starts by breaking down Hart’s positivist view of law, which focuses on defining law as distinct from morality. Fuller points out that while Hart references thinkers like Bentham and Austin, he ignores the moral dimension necessary for fidelity to law. Fuller emphasizes that law and morality can’t be rigidly separated when it comes to the judicial process because law involves more than just rules—it’s a human endeavor aimed at achieving order. II. The Definition of Morality Fuller critiques the positivist definition of morality as a broad, vague concept that includes everything not law—from conscience to cultural prejudices.  He points out Hart’s warning that injecting morality into law could lead to immoral moralities being imposed, such as in regimes dedicated to evil ends. Fuller insists that good and evil have very different levels of coherence, believing that law tends to pull toward goodness when judges justify decisions openly. III. The Moral Foundations of a Legal Order Hart rejects the command theory of law, which sees law as merely a command backed by force, arguing instead for accepted fundamental rules that define lawmaking procedures. Fuller expected Hart to acknowledge a connection between these rules and morality, but Hart avoids that discussion. Fuller suggests that law cannot exist without moral acceptance—both internal and external moralities are needed for order. IV. The Morality of Law Itself Fuller emphasizes the moral element in law, even in systems aiming for order alone (without necessarily seeking good order). He argues that law can only function when there’s consistency and responsibility from those in power. Without these, even a selfish ruler will fail to maintain order. Fuller critiques Hart for ignoring the internal morality necessary to uphold law, saying Hart sees law as an external force, rather than something that humans strive to uphold. V. The Problem of Restoring Respect for Law and Justice After the Collapse of a Regime That Respected Neither Post-Nazi Germany faced the dilemma of whether to reject or uphold Nazi laws. Hart suggests that a retroactive criminal statute would have solved this, but Fuller defends the German courts for declaring Nazi laws void, arguing it was necessary to rebuild respect for justice and law. Fuller asserts that Nazi law didn’t just pursue odious ends—it violated the very morality of law, with practices like secret laws and retroactive statutes. VI. The Moral Implications of Legal Positivism Fuller explores whether legal positivism in Germany helped pave the way for Hitler’s dictatorship.  He argues that German legal positivism led to an unquestioning obedience to any rule called "law," making it easier for Hitler to exploit legal forms. Fuller criticizes positivism for banning moral considerations from law and suggests that if German jurisprudence had cared about the internal morality of law, the Nazis could have been challenged more effectively. VII. The Problem of Interpretation: The Core and the Penumbra Fuller critiques Hart’s core and penumbra theory of interpretation, where core cases are clear and penumbral cases require interpretation. Fuller argues that judges don’t just interpret individual words, but look at the purpose of the law and its overall structure. He contends that Hart’s theory reduces judicial interpretation to a cataloging process that misses the deeper responsibility judges have to make laws coherent and workable. VIII. The Moral and Emotional Foundations of Positivism Fuller discusses how positivism’s fear of purposive interpretation comes from a concern about human freedom and dignity. He argues that when law is used to impose purposes on individuals (e.g., forcing religious practices), it can erode personal dignity. Fuller appreciates Hart’s contribution to legal philosophy, especially for removing the pretense of ethical neutrality in positivism, opening the door to more meaningful discussions about law and morality. Fuller’s key takeaway? Law isn’t just about rules—it’s about human responsibility and striving toward justice. 2 / 10 / 2024: Sovereignty of Law and Power: Law and Power: Power can be recognized by its effect on our actions ○ When there is a legitimate authority, our actions are limited Because the authority has instruments to direct our actions using binding imperative commands (hetero-determination) Hetero-determination: When a superior authority determines our actions (limits people’s liberties) ○ Because of this, power is looked at with suspicion Self-determination: The freedom to determine your own actions (without limits) What is freedom?  ○ Thomas Hobbes: Free will doesn’t exist because as parts of society, people’s actions are already limited People are like prisoners bound by a “very long chain” so it seems like they can move around freely, but in reality, they’re not free ○ Baruch de Spinoza: Free will is the ability to want something or to want to do something Power limits actions but ALSO influences people’s wants Power = limits to liberties (freedoms) ○ Power needs justification (an explanation) and legitimation because it’s looked at with suspicion Constitution of power: ○ Constitutionalism provides a justification (explanation) for power AND provides a counter-balance to power, thereby limiting it Constitutionalism LIMITS power The constitution determines the scope, instruments, and possibility for an authority to intervene in social life Decidability of power: People can decide its range, scope, and forms ○ By deciding, people are counter-balancing its effects and limiting it Prof Brozetti’s opinion: It’s absurd to think that public law can be discussed as a pure subject without also considering other things like politics What power? (Max Weber, Economy and Society) ○ Macht Power to DO something / change things ⇐ active, factual power ○ Herrschaft BEING powerful (i.e. legal powers) A superior entity has power because it’s superior to its subjects ○ Disziplin (also Michel Foucault) Power that physically coerces people (how to think, how to act) Power that limits freedoms to certain possibilities, enforcing it with the threat of punishment Needs instructions and balances What authority / domination? ○ Rational-legal: Power as legal forms (bureaucratized, rationalized, de-ritualized, legalized) Ex.) Modern leaders aren’t the strongest or the wisest, but they’re in power due to a series of procedures ○ Traditional Authorities that are perceived as in charge of a community due to specific characteristics Ex.) Strongest man is in power in a Viking tribe ○ Physical strength entitles him to power  Ex.) Council of elders are in power in nomadic tribes ○ Seniority and wisdom entitle them to power ○ Charismatic: Features that are able to break the rational legal procedure ONLY thanks to charisma (capability to embody full power) Personalization of authority Modern Age: In the modern era, SECULARIZATION meant that everything (including power and social rules) can be questioned ○ In antiquity, people discussed the best forms of powers but didn’t question why there should be power Now, power is being questioned, and it must provide a rational justification Divine right is ok but must be legally explainable Thomas Hobbes: ○ State of nature (unlawful): Thought experiment: Situation in which there is no power, no authority, no law People live in complete anarchy Everyone thinks they are entitled to everything Ius ad omnia: The right to do everything without limitations Everybody attacks everybody else Bellum omnium contra omnes: A war of everbody against everybody else ○ Hobbes says that because of this stressful state of nature, people came together and agreed to give up some of their powers to a superior authority to make peace ○ Social contract (pacta servanda sunt): The state is here to provide law and order The authority must act as a guardian / watchdog The authority must have ABSOLUTE power (summa potesta) ○ Because of this, people can’t dispute or resist this authority ○ ABSOLUTE authority The authority can do anything to prevent falling back into the state of nature and all of its chaos ○ In Leviathan: Authority is made of people because people came together to give power to that authority This power is ABSOLUTE Law is provided ONLY by the authority through the social contract John Locke: ○ State of nature (lawful):  The state of nature already has an orderly faction People are bearers of pre-political liberty rights Pre-political rights = innate rights that people were born with even before authority was established The government MUST govern in compliance with this pre-political law (the law of the nature) ○ Why do we need an authority? Even though people know what rights they have, disputes can still arise between overlaps between people’s spheres of individual rights There needs to be someone to adjudicate ○ Social contract: Establishes an authority capable of JUDGING disputes Not entitled to overcome pre-political rights It’s meant to realize natural law ○ NOT an absolute authority It’s bound by natural law (the law of the state of nature) If this authority abuses its power (creates laws that don’t comply with natural law) and goes beyond its task, people have the right to rebel against it ○ Locke definitely inspired the Declaration of Independence Jean-Jacques Rosseau ○ Authority belongs to the people and is expressed by them ○ Law = the expression of the general will General will = what the MAJORITY wants ○ Equality > Freedom (equality is more important than freedom) People must represent the equality of each individual No room for diversity, minorities, identities, etc. People speak with ONE voice, expressing the general will No space for people to express their individuality When minorities vote, they should change their minds and vote with the majority ○ People who don’t agree with the general will are enemies of the people Inspired the original leftist thinkers ○ Context: This idea was created in the smallish commercial city of Geneva, where everyone was bourgeois ○ Failure: Robespierre and the Jacobins applied this idea and used the guillotine to eliminate those who opposed them People weren’t allowed to reject the ideals of the revolution Overall comparison: Hobbes Locke Rosseau  Absolute Authority Law (natural) Law ↓ ↓ = Law Authority (to adjudicate) General will Obedience (no right to Right to resist (if the Obedience (no room for resist) authority fails to uphold resistance) natural laws) Police state and absolute Democratic absolutism monarchy Constitutional state (rule (totalitarian democracy) of law) Anecdote From English History: Magna Carta (1215): Barons limited the king’s power ○ 1) The king can’t convict freemen without a fair trial Fair trial = a trial with a jury made up of the barons’ peers ○ 2) The king can’t tax the barons without the decision of a council that represents the taxpayers Same concept as the American revolutionaries (no taxes without representation) English kings since the Middle Ages knew that their power was limited by other social bodies ○ Tudors tried to be absolute monarchs and opposed these other bodies All were very strong monarchs ○ King James I (originally of Scotland) consolidated absolute power He was very strong and people respected him ○ King Charles was a weaker king The other social bodies started rebelling Oliver Cromwell was coming up with a plan to restore the parliament King Charles enters the parliament with armed soldiers, demanding to arrest Cromwell ○ Parliament members started shouting, “Prerogative!” English Civil War started in this moment Monarchists VS Parliamentarians ○ After Oliver Cromwell’s dictatorship ended: The King-in-Parliament rules England The parliament and the king share power Part of the parliament represents the king, but the king only physically enters parliament once a year Moral of the story: Law is rooted in the culture and traditions of a country as well, NOT just legality ○ This is why positivism is insufficient Anecdote From Hungarian History: The Crown of St. Stephen represents the unity of the Hungarian people ○ This crown is the official chief of state (supported by the constitution) Hungary is now a republic ○ The president of the republic acts in the name of the chief of state (the Crown of St. Stephen) Since the time of St. Stephen, Hungary had no proper sovereign Some people see this crown as nonsense but it represents the relationship between law and power Week 5 7 / 10 / 2024: Constitutions: Definition of a Constitution: Descriptive Notion: The state AS IT IS (political regime, form of government) ○ Written / unwritten normative structure Organization of the state (organs, authorities, and powers) Goals, ideals, and values ○ HOW a society is politically organized Prescriptive Notion: The state as it OUGHT TO BE ○ The state as it should be to be considered as formally “constitutional” Rights and liberties of the citizens Separation of powers ○ Can’t be used to describe ancient states like the Roman Republic Since rights and liberties, separation of powers, etc. might not have existed yet ○ Essential Contents: 1) The Political Goal Constitution = a means to solve and overcome a historical crisis ○ Aka the goal of a country Ex.) Italy is a “democratic republic founded on labor” 2) The Dogmatic Heritage (undisputable) Constitution = a set of principles and founding values a society has chosen to realize that political goal and adopted as its own model for a State 3) The Structure of the State  Constitutional system = formalization of the constitutional norms ○ Consistency ○ Contractualists and Neo-Contractualists Constitution = the positivization of the national deal of citizenship The constitution is an a SOCIAL CONTRACT Its content has a social and political charge It’s where politics becomes a legal subject ○ Constitutional law can only be analyzed when also looking at the politics Evolution of the Prescriptive Notion of Constitutionalism: ○ Ancient Constitutionalism: The existence of an authority wasn’t even questioned No one questioned its origins, reasons, or arguments The discussions were about the BEST form of exercising power Plato Aristotles Cicero and Polybius ○ Mixed constitution (sharing the elements of all the other possible forms of government) The Roman Republic had the characteristics of a monarchy, aristocracy, AND democracy Served as a model for the Middle Ages ○ Medieval Constitutionalism: Several Medieval kingdoms were good models of constitutionalism The Lombard Kingdom: Somewhat protected individual rights Most Serene Republic of Venice: Mixed constitution with the characteristics of a monarchy, aristocracy, AND democracy Robert Bracton: ○ Came up with an early form of the “separation of powers” The king can do whatever he wants in the administrative sphere (gubernaculum) The king is limited by the law he is enforced to enact in the jurirdical sphere (iurisdictio)  St. Thomas Aquinas Marsilius of Padua: ○ Wrote a treaty explaining how a prince should exercise his power Magna Carta ○ Modern Age: Power limitation: Constitutions have the aim of limiting and justifying the power of the political authority ○ To prevent absolute, arbitrary power Recognizing and granting rights and liberties However, these were still theories with no active enactment (until the 18th Century came around) ○ First Constitutional Charters (18th Century): American and French constitutions NOTE: The Declaration of Independence was signed in 1776 BUT the US Constitution was signed in 1787 French Declaration in 1789 and first constitution in 1791 ○ The first constitution (1791) was MONARCHIC (the king was still around but had fewer powers) 2nd constitution: Jacobin Constitution (First French Republic) ○ After the beheading of the king Civil Rights (First Generation of Rights): “Negative Liberties” ○ Freedom of speech, freedom of assembly, right to property, etc. ○ State intervention would only worsen these rights ○ The state SHOULDN’T intervene in these matters Liberal Charters (19th Century): ○ Chartres Octroyée: The king gave constitutions to the people ○ Causes: Bourgeoisie: a new class was formed and wanted to be represented The bourgeoisie can be represented in the lower parliament house Nationalism Different ethnic groups also wanted to be represented  ○ 19th Century: FLEXIBLE Constitutions Because new generations should be able to do whatever they want (Robespierre’s idea) Democratic Charters (20th Century): ○ Socialist Ideology: After WW1, workers started demanding that SOCIAL INTERESTS (not just individual interests) be represented ○ Equality & social justice > individual liberty ○ POSITIVE RIGHTS: Requires the state’s direct intervention (investments) to be realized Ex.) Right to education, right to healthcare, right to NOT possible in a laissez-faire state Requires the state to intervene economically Led to higher taxes (especially toward the rich) ○ Social Justice = Welfare Contemporary Constitutionalism: ○ Rule of Constitutional Law: Rigid Constitutions A simple majority ISN’T ENOUGH to amend the constitution Ranks the constitution as the highest in the Hierarchy of Norms (supremacy over the law) Supremacy over the law Democratic charge Dogmatic charge Critiques Constitutional Justice: ○ The constitution is the HIGHEST in the legal source hierarchy (Hierarchy of Norms) ○ US: Judicial Review US Supreme Court (highest judicial tribunal) can rule that a federal law is unconstitutional 1st example: Marbury v Madison Supreme Court decisions are binding on all other national courts ○ Europe: Kelsenian Theory Every matter related to the law must be solved with legal means  Pure Theory: The validity of a law can only be determined FORMALLY True guardian of the constitution: a LEGAL actor (constitutional tribunal) ○ Europe: Schmittian Critique Law CANNOT be purified from all other elements Political Theory: There needs to be political figures capable of defending the constitution True guardian of the constitution: a POLITICAL actor ○ Constitutional Interpretation: US conception of the constitution: Society AS IT IS A document that represents the TRUE US society 2 different doctrines in the US Supreme Court: Originalism ○ Based on the LETTER OF THE LAW ○ Relies on the original meaning of the constitution NOT the original meaning intended by the legislator It’s the original meaning intended by the American society in the 18th Century ○ Used to justify the OVERTURNING of Roe v Wade Eliminated the constitutional recognition of the right to abortion “Living Constitution” ○ OPEN WORDS based on what the current society considers as necessary European conception of the constitution: Society as it OUGHT TO BE  The constitution is the ULTIMATE goal to be achieved; it expresses a BETTER society Validity of the Constitution: Material VS Formal Constitution: ○ Material: How the constitution is actually enacted in reality Sometimes differently from what is written in the constitution The thinker who came up with this was accused of using this to justify fascism There was a formal constitution in Italy during the fascist era, but the APPLICATION of the constitution was totally different Principle of Effectiveness (axiological legacy) Constitutional Principles: ○ Problems: Normativity of values Interpretation of principles Relies on ethical elements to give them a complete meaning according to different cases in which they can be applied Balance VS hierarchy Is there a hierarchy of rights? ○ Used when rights overlap / go against each other There needs to be a BALANCE of values where overlapping rights are both valid Constituent Power VS Constituted Power: Constituent Power: ○ The power capable of demolishing the previous legal order and ESTABLISHING the new legal order Aims to demolish the previous constituted powers ○ Establishes the new constituted powers ○ Problem: The constituent power ends (disappears) the very moment the new constituted powers are established New constituted power: Can be a head of state Is it a legal authority? Many say it’s extra-legal (only becomes legal when it establishes itself ○ Ex.) Roman Republic Caesar forced the system He operated outside legality when he decided to subvert the previous order and establish a new order  ○ The old constituted order became nullified ○ So who is the constituent power? THE PEOPLE (or an extra-legal authority) 8 / 10 / 2024: Lecture Intro: The constituent power is only the “constituent power” if it successfully creates the new new legal order ○ Otherwise, it would be called a rebellion It disappears as soon as the new constituted power is formed ○ Otherwise, it would be a constant state of rebellion The owners of the constituent power are the people who had the power to destroy the previous legal order and create a new order ○ Could be the people, an organization, a person, etc. Kelsen VS Schmitt: Formalist Normativism VS Decisionist Realism Hans Kelsen: Formalist Normativist (but NOT a positivist) ○ “Reine Rechtslehre” = Pure Doctrine of Law Studied law as a subject purified from EVERY extra-legal element Law should only be studied with legal terms & legal elements No politics, science, economy, sociology, etc. Law should NOT be explained with references to other subjects It can only be explained within itself Law exists by just meaning itself De-ideologization of positive law Analyze the FORM of the law, NOT its CONTENT Kelsen was NOT a positivist! Normativism ≠ positivism Focuses on the normativity of the law ○ Everything is about the norms (basic elements of law), which have the power to direct / impose an action to people Norms can only be analyzed using legal terms Science of Law: Can be explained only with the very instruments of law No other subjects, philosophies, ideological theories, etc. ○ General Theory of Norms: Norms = Basic elements of the law (propositions that can direct behaviors)  They are instruments of social techniques Only analyzing their FORM and effectiveness (whether they can direct people’s behaviors), NOT their CONTENT The validity a norm can only be identified by looking at the adequacy and appropriateness of its FORM Using a sort of scientific method to create a proper system of law where everything has its scientific category Within that system, we can determine a norm’s validity Normal Dynamics: particular dynamics within the law Scheme of Law (Stufenbau der Rechtsordnung) Same as the Hierarchy of Norms EXCEPT it should only be looked at through formal aspects Each norm must follow its superior norm in order to be considered valid ○ That superior norm must also be validated by a superior norm Grundnorm (basic norm) ⇒ Constitution ⇒ Powers ⇒ Laws ⇒ Decrees ⇒ Administrative orders and provisions ⇒ Contracts ○ The constitution’s validity CAN’T be proven by the constituent power Because the constituent power is NOT legal Kelsen sees the the constituent power as nonsense since it’s not part of pure law ○ The constitution is validated by the Grundnorm All laws can be deconstructed only by looking at their forms Grundnorm: It’s the presupposed (assumed) validity of the law itself ○ Assumed to exist in order to validate the Hierarchy of Norms ○ Kelsen says that it’s NOT outside of the law The grundnorm is contentless and entirely hypothetical Grundnorms are identical everywhere in the world The grundnorm isn’t real and can’t be validated, but that’s exactly Kelsen’s purpose ○ Kelsen wants to purify law from reality ○ He just wants to analyze the validity and normativity of the law, NOT its reality Hart’s Criticism of the Grundnorm: Hart said the grundnorm is exactly like his Rule of Recognition Kelsen objects:  ○ The Rule of Recognition validates a societal order ○ The grundnorm is like a crystal bubble that is necessary to find a theoretical root to his construction Sovereignty (biggest problem with Kelsen’s idea): State-Law Identity: ○ Kelsen says that a state IS its law ○ Lawyers shouldn’t assess other public phenomena other than the law of that state ○ Kelsen is the inventor of CONSTITUTIONAL JUSTICE Because in constitutional justice, every legal problem can be solved directly within the legal sphere Every action within the state can be analyzed with just a legal procedure Constitutional tribunals should just analyze whether laws are compliant with the superior law (the constitution) What about society? ○ Kelsen says, “Why should we analyze society? We should only look at the law” ○ Counter-argument: “Doesn’t this mean that every form of government can be validated?” Kelsen’s reply: “No, only democracy” Because ONLY democracy can be analyzed formally The substance of true democracies are forms and impersonal ○ Everyone can take part through a formal procedure ○ A democracy is valid when that formal procedure is respected Voting, elections, etc. are all LEGAL PROCEDURES All other forms need other justifications, like societal support, armed force, etc. Democracy is PURELY a matter of legal forms  ○ Democracy is the perfect example of legality and formal procedures ○ It’s not important who the leaders or MPs are Carl Schmitt: Decisionist Realist ○ Validity of laws: Based on EFFECTIVENESS (efficacy) Efficacy CAN’T be proven through form, but ONLY through facts ○ Justification of laws: Based on LEGITIMACY A legal order can ONLY be justified by its factual, real legitimacy ○ The Concept of the Political: What makes politics different from other subjects? Everything that is political MUST also be polemical (divisive) Creates the friend-enemy distinction Bound to a concrete (not formal) situation Manifests itself in wars and revolutions Grundnorm: Just a “ghostlike abstraction” where the friend-enemy distinction has disappeared Political premise: Means that there has been a conflict that caused the friend-enemy distinction The friend-enemy distinction CAN’T be determined by the grundnorm OR constitutional justice (the constitutional tribunal) The existence of the enemy reveals who we are ○ Our political entity & organization can only be determined because there is an enemy who is radically different Ex.) Athenians are Athenians BECAUSE there are Spartans and Athenians have decided to be different from them Law is a product of a political decision Laws come from the WINNER of a concrete conflict (usually wars but can also include ideological conflicts) The legitimacy of the winner is determined by the fact that he has defeated the other party The winner has the power to adopt a political decision ○ This is why Schmitt is called a decisionist Because everything stands out from a political decision that can only be given by the factual winner of a conflict The validity of laws can’t be analyzed without finding out WHERE the laws came from ○ Sovereignty: Political-theological legacy  Sovereignty CAN’T just be analyzed by looking at its forms “All significant concepts of the modern theory of the state are secularized theological concepts” A state is just a secularized replica of a religious relationship ○ Worshippers obeying and subjecting themselves to a divine authority Politics CAN’T just be explained through rationality ○ The authority CAN’T completely explain its power through law Because this metaphysical, transcendent aspects Critique of Hobbes’s Leviathan: Schmitt says that Hobbes is the first positivist because Hobbes has found a way to rationally justify authority ○ Hobbes: The fact that people can agree to give power to a third authority to obtain peace and order makes the Leviathan EXPLAINABLE ○ Schmitt: The Leviathan remains a monstrosity that CAN’T be fully explained because its nature is a “mortal god” that still has inexplicable aspects of transcendence Not everything about this authority can be explained rationally or justified by the law Because the concept of the state presupposes the concept of the political The Leviathan has its origin AND the source of its legitimacy from a political clash The law is only the latest phenomenon of a political quarrel, determined by the winner POLITICS presuppose law, NOT the grundnorm The state ISN’T its law ○ The state is existentially political Its existence is based on the originary conflict Kelsen says: The state EXPRESSES itself through law ○ Schmitt says: The Even the state came from a political decision, which came from the winner of a conflict Liberal democracies are FAILURES because everything is legally proceduralized  ONLY another political identity can defend the law The state of the exception: “Sovereign is he who decides on the exception” Sovereignty is NOT determined formally BUT factually ○ The leader can temporarily SUSPEND fundamental rights in a state of emergency and CREATE the exception ○ Caesar imposed his lifelong dictatorship (i.e. decided on the exception) He made the exception by crossing the Rubicon (breaking the law by entering the Republic with weapons and rebellious intent) Sovereignty belongs to the leader / institution who can DISCRETIONALLY decide when to create the exception (suspend fundamental rights) ○ Constitution: Origin of law: nomos (natural law BUT tied to a certain territory) Each community has its own nomos that came from its political history and political identity Constitution: The POLITICAL IDENTITY of a nation It’s the condition for the existence of the people’s political identity Distinguishes “us” from “them” Constitutions are discriminatory They determine who doesn’t belong to the community (who the outsiders are) The End of the Weimar Republic: Facts VS Norms War Guilt Clause: Example of retroactive law ○ Allowed war reparations to be demanded from Germany Weimar Republic: It was the best example of a formal perfection (it was formally perfect) ○ It had the most wonderful constitution of that time ○ Rigid constitution Principles of rights and liberties declared once and for all No constitutional justice ○ Semi-presidential republic The president had to appoint a government ○ Proportional electoral system within the Reichstag Proportional representation of all various parties through the majority principle Reality: ○ March 29, 1930: Brüning was appointed by Hindenburg without parliamentary majority  July 1930: Paul von Hindenburg dissolved the Reichstag (in accordance with Article 14) ○ September 1930: Reichstag elections ⇒ Nazi party became the second-largest party ○ 1931: Huge economic problems ○ June 1932: von Hindenburg appointed von Papen as chancellor von Papen was ok with oppressing the masses Forced von Hindenburg to dissolve the Prussian government and appoint von Papen as the leader of Prussia This was a “legal coup” ○ July 1932: The Nazi party became the largest party Hitler refused von Papen’s offer von Papen operated without a majority so he asked von Hindenburg to dissolve the Reichstag again ○ January 1933: von Hindenburg appoints von Schleicher as chancellor von Schleicher convinces von Hindenburg to appoint Hitler as chancellor Hitler legally became chancellor ○ February 1933: State of exception (Reichstag fire) Blamed on the communist party Hitler demanded von Hindenburg to use Article 48 (suspending fundamental rights until further notice) ○ March 1933: New Reichstag elections The Nazi party wins Enabling Act: Allowed the government to do whatever it wanted Passed with a very high majority This formally & legally amended the constitution ○ August 1934: Law concerning the head of state Transferred all of the president’s powers to the chancellor (Hitler) Legality VS Legitimacy: Everything happened formally & legally ○ This is why we CAN’T just analyze the law based on its formal validity ○ Kelsen says we can neglect the “reality” part of it There was no issue about the Nazi regime regarding its forms Constituted power VS constituent power ○ When the state of exception is factually decided by someone, who can solve the situation?  9 / 10 / 2024 Normativism VS Legalism: When and How is a New Legal Order Established? Normativism: ○ Law as a CULTURAL fact: From human volition objectified in a set of products Norms = linguistic statements with a certain meaning ○ Law is a linguistic phenomenon aimed at or