PHIL 337-61 Notes Rough - Copy PDF

Sept. 6, 2024 Aquinas o Introduction: ▪ Traditional Debate in Philosophy of Law between natural law and legal positivism Ex. Aquinas vs Austin/Bentham or Finnis vs Hart o These are deb...

Sept. 6, 2024 Aquinas o Introduction: ▪ Traditional Debate in Philosophy of Law between natural law and legal positivism Ex. Aquinas vs Austin/Bentham or Finnis vs Hart o These are debates in “general jurisprudence” Commented [TH1]: seeks theoretical understanding of the "essence" or "concept" or the "idea" or the "nature of (contrasting with particular jurisprudence- law" studying a particular legal system. General Jurisprudence is seeking an understanding of law in the most general sense). o Theology based – page 22 ▪ A picture of what is really good for humans. We also state that for Aquinas, philosophy is about working out of a theological view of the world. Think about what that means. If philosophy is working out the theological view, then seems like you have to have faith in this picture first to then get you going doing philosophy. This makes it sound less Aquinas philosophy is based on theology or based on a faith-based set of views propositions Yet they also say much of his argument is Aquinas again, can be accepted on rational grounds alone without reference to faith. ▪ We want the basics so that we can understand what Austins align on. So let me give you the quick version. And again, putting Aquinas in this best light so that we can get off the ground here so we understand how to take what you say ▪ Distinct Disciplines Theology o Study that has its source in “faith,” “revelation”, and/or “divine testimony.” Commented [TH2]: old + new testament (divine law)  ▪ For Aquinas, these are beyond our natural ability/powers, and a gift from god. o Reason develops articles of faith into the “canonical law” (or the church law). o These are the resources to get you to heaven. He thinks that faith perfected reason. Philosophy o Study that has its source in reason or rational knowledge. Commented [TH3]: this is our natural ability st st o 1 Principles of reason (natural law’s 1 principle: Commented [TH4R3]: **keep in mind that theology's key thing is that it's beyond our natural ability good is to be done and pursued and evil avoided) o We have the resources to be moral o He believes that reason is limited ▪ He wanted to prove that the soul was immortal, but reason couldn't do that. Only faith could. o Assigned reading Overview: ▪ 3 parts to assigned reading 1. What is the essence of law? o Question 90 in 4 articles o Pg. 30 o “... an ordinance of reason, for the common good, Commented [TH5]: article 1 made by him who has the care of the community Commented [TH6]: article 2 and promulgated” Commented [TH7]: article 3 Commented [TH8]: article 4 2. What are the different kinds of law? o Eternal law/God Commented [TH9]: the infinite mind of god ▪ Natural Law Commented [TH10R9]: the designer Human Law Commented [TH11]: our legal system ▪ Divine Law Commented [TH12]: canonical law o Question 91 – of the varieties of law. First 4 3. What are natural law and human laws? Sept. 9, 2024 Overview of last class: o 3 Parts ▪ 1. The “essence” of law: an ordinance of reason, for the common good, made “by him who has the care of the community and promulgated.” Ordinance of Reason: He argues that both law and reason function as a rule and measure of human action. o Rule refers to a guide for actions. o Measure refers to a standard by which we judge actions. o Both give order, meaning, and intelligibility to actions. Common Good: Not simply the sum or aggregate of individual goods/interests. o The individual good relates to the common good like a part relates to the whole. Commented [TH13]: something like an organic whole Care of the Community: o “him” refers to a public personage or the whole people. ▪ “sovereignty” or effective power Promulgate: o Meaning to notify o Secret laws cannot function as a rule for human action and are not a proper measure. o Nonretroactivity ▪ Retroactive laws are made after the fact. They do not act as a rule for human action because the human could not have had any idea it was a law. Issues: o Common Good ▪ It's too vague  ▪ It’s unclear what the whole is ▪ ▪ 2. The Varieties of law: eternal law, natural law, human law, Commented [TH14]: focus on these 2 and divine law. ▪ 3. Third part focuses on Natural Law and Human Law. (Question 94, 95, and 96) September 11th, 2024 Varieties of Law Commented [TH15]: Essence of law (memorize the 4- part definition) o Eternal Law Commented [TH16R15]: Each of the following have ▪ Eternal and infinite design/form/exemplar evident from these 4 parts intelligibility of “the whole community of the universe.” Commented [TH17]: ordinance and reason See “marks” or “imprints” of eternal law in Commented [TH18]: for the common good order/intelligibility of the natural world. ▪ Plants and animals “partake somewhat” in the eternal law through their inclinations Rational creatures partake in a “more excellent” way by being provident for ourselves and others. o Natural Law ▪ Rational creatures' participation of the eternal law By employing our practical reason, we participate in the eternal law. o Aspect of divine providence ▪ Does NOT apply to plants or animals, because we partake in a different way. o Human Law ▪ Particular determinations of natural law devised by people for the common good/promulgated. o Divine Law ▪ Faith based law  ▪ 4 reasons why divine law is needed 1. Since Humans have an end not proportionate to our nature, we need supernatural guidance. (reason is our Commented [TH19]: heaven, being blessed natural guidance) Commented [TH20]: human and natural law is all we truly need to be moral.. To flourish as a human, we must 2. Due to uncertainty about particular matters (particular also have divine law conclusions), we need a law that cannot be in error. Commented [TH21]: So, why trust human law and natural law if our reason can be in error? Why can't we 3. Need for Divine law to guide us in our “interior only appeal to divine law? movements” (thoughts, feelings, intentions) 4. Human laws cannot punish or criminalize all evil deed Commented [TH22]: all things contrary to natural law Commented [TH23R22]: Take homosexuality for example- criminalizing it creates worse evils September 13th, 2024 Natural Law o Rational participation of the eternal law o Practical reasoning ▪ Reasoning about actors (what one ought to do) ▪ 1st Principle (self-evident and indemonstrable- cannot be Commented [TH24]: not just in itself but to everyone demonstrated because it is the basis for reasoning) of natural law/practical reasoning: the good should be done and pursued and evil avoided. A formal principle unless filled out with a sense of “good.” Commented [TH25]: - inclinations shared with all living o The order of “good” follows the order of natural things (including plants) and - inclinations shared with many animals/mammals and inclinations - inclinations specific to rational beings ▪ Ex. 1 Growth, life, self-preservation Commented [TH26]: what are the goods that correspond to this? How many are there? Is there a ▪ Ex. 2 procreation, sex/pleasure, hierarchy among the goods? companionship/friendship, caring for Commented [TH27R26]: Aquinas never specifies this offspring Commented [TH28R26]: ex. John Finnis: 7 Basic Goods 1. Life ▪ Ex. 3 knowledge, religion, desire for 2. Knowledge 3. Play organized society 4. Aesthetic Experience 5. Friendship ▪ Aquinas’ hints: 6. Practical Reasonableness 7. Religion Harming others is counter to natural law He also says that there is no objective hierarchy. These are all basic and self-evidently good. There may be subjective rankings, but nothing objective.  o By way of conclusion from premises, we divide a human law against murder/assault/rape Punishing evil doers is required by natural law and o by way of determination of generalities of natural law, we get specific punishments by human law o Adultery, theft, and “unisex” lust (oops) are counter to natural law ▪ Which ones should be criminalized? o Human Law ▪ Particular determinations of natural law devised by people to deal with specific purposes of “temporal” communities/states ▪ Aquinas’ hints: Harming others is counter to natural law o By way of conclusion from premises, we divide a human law against murder/assault/rape Punishing evil doers is required by natural law and o by way of determination of generalities of natural law, we get specific punishments by human law Adultery, theft, and “unisex” lust (oops) are counter to natural law o Which ones should be criminalized? ▪ Aquinas’ Hints: The purposes of human law are: o 1. Protecting people from harm o 2. Helping correct the worst vices by habituating the  criminals to return them to virtue o 3. Cultivating some virtues (but not all). o 4. Forming and sustaining arrangements/institutions for general welfare September 16, 2024 John Austin’s Legal Positivism o Had no patience for the metaphysical like Aquinas ▪ Same with theological kind of o He employed “conceptual analysis” as method for philosophy ▪ Demystify law and morality Law – legal theory and practice Morality – champion utilitarianism because it is concrete and empirical and exposed other concepts as fictions or empty o Natural rights and the common good o Aggregate or sum of individual good o Natural law is problematic because of its view of morality (its view of natural law) and because of its confusion of human law and morality Commented [TH29]: positive law ▪ Seems to derive an ought from an is If something is the case, you can't automatically assume that it should (ought to) be the case Fact about human natural inclinations Unjust laws are not laws o 2 kinds of problems ▪ 1. Practical/Consequentialist Argument  Put into practice, natural law promotes anarchy or excessive compliance with the law ▪ 2. Theoretical/Intellectual Argument To that issue, assert unjust laws are not laws. You seem to be contradicting yourself. You are affirming that X is the law and denying X is a law. Is that when you see that issue here? I find it kind of interesting, though, that, well, Austin and Bentham argued that I'm just like, it's a ridiculous contradiction in Aquinas's understanding of what law tends to be. Then it's not as much of A ridiculous description of of it. Well, it assumes that when. These two things in exactly the same sense, right? Like if we meant. Are not positive loss. Hmm, that's what it says. But we could mean these in different senses, couldn't we? And then, and it's obvious that quite a bit, he meant unjust human. He didn't mean human laws, but he meant unjust human laws that have some features of human laws are not human. Was in the sense of having called teachers lack the essence of. Well, yeah, so he's meeting these unjust laws in that minimal sense of the word, right? Laws are not laws in the full sense of the word. They want to see that and then you magically fix the problem with with magic. The climate has always like in this sense, it means this in that sense, it means the king of distinctions. But he it's clear like he does a stupid person, OK. And people who assert this including like Martin Luther King Junior Birmingham Jail. Was very much aware of the two senses of law when he was protesting segregation laws in the South and he said. To paraphrase, human laws that don't square with the rule of law are not lost. And he knew very well that he was in some sense calling something a law and denying that it was a law because he wasn't. He was pointing to the fact that. That is a fact that this. Rule has legal standing, and people treat it this way, but they shouldn't treat it with legal standing because it lacks justice. OK, That's what he meant. So that's not a big worry for this kind of, you know, silly criticism. But there's this more serious. Like on page 79, Austin says. The existence of law is one thing, it's merit or demerit is another. Whether it be or not be is 1 inquiry. Whether it be or not be conformable to an assumed standard is a different inquiry. So what could be involved here with this  is a confusion of two forms of inquiry. right you mean Confusion of 2 distinct forms of inquiry moral evaluation of laws + description of laws o Particular jurisprudence ▪ Aquinas; “essence” of law in terms of “common good” + “reason” o Blackstone’s commentaries on English Law o The Province of Jurisprudence Determined ▪ He’s trying to say “look- somethings going wrong with how we consider the areas for jurisprudence. We need to go back to the basics” ▪ Page 81 Law in its most general and comprehensive sense: “... a rule laid down for the guidance of an intelligent being by an intelligent being having power over him” Commented [TH30]: power relationship between beings How is this different from Aquinas? o Doesn’t say what a law “ought to be” o No reference to its substance except to say that it guides others o No reference to common good or “rationality” of rules o “power” vs “care of the community” ▪ 2 basic kinds of “laws” 1. Laws set by God to people o Divine Law or Laws of God o Critical Morality / Utilitarianism 2. Laws set by people by the “position” of people to other people. o A) Positive Law  o B) Positive Morality September 18th Page 68 “A rule laid down by the guidance of an intelligent being...” Back to 2 basic kinds of laws: o 1. Laws set by God to humans ▪ Divine Law/Laws of God ▪ Page 70 – Divine law provides the basis for determining/judging positive morality ▪ Revelation does not give clear guidance ▪ Utilitarianism provides best indication of the will of God (utility is the objective basis for all moral judgements) Page 87 – “For Austin, utility was the index to God’s command.” - Hart o 2. Laws set by humans to other humans by the “position” of people ▪ “Position” refers to positive. There are two kinds: 1. Set by the position of political leaders (positive law) o Positive law is the subject matter for general or particular jurisprudence o We want to know the essence of positive law o This ties into the Command Theory of Law 2. Set by the position of public opinion, customary practice (positive morality) o What passes as morality in a given time or place. In that sense, it is set by people as a collective, rather than an individual. By nature, it’s incredibly relative. Command Theory of Law o “A command involves an expression of some wish or deed through some words or signs by one rational being to another to do or not do x...” - Page 71 and 72 ▪ The concept of a command is inseparable from the concept of duty and sanction They emphasize distinct aspects of one complex phenomena. When you have a command to do or not do x, you don’t really have a command unless you also have some evil/consequence (however small) to follow for noncompliance (sanction). o Without the sanction, you have a wish or a hope. ▪ Ex. Telling us to attend class: a) no following statement – a wish b) “and I’ll bake you cookies” - a bribe c) “or I’ll deduct marks” - a command o What we want Duty refers to the obligation to do x ▪ General commands (oblige generally over time) require a relation of superiors and inferiors As opposed to occasional or particular commands Superiority: Page 75 lecture 1 – “Superiority signifies might. The power of affecting others through evil or pain...” o So, this is about a power relation between people that emphasizes an ability to inflict a sanction over time. These general commands are NOT equivalent to positive law o This is where the Supreme Superior comes in! o Supreme Superior called the “Sovereign” to account for positive law.  ▪ Positive law expresses the commands of the Sovereign ▪ Page 82, Chapter 6 is the definition: a determinate and common human superior that has two characteristics: 1. The bulk of society is in a habit of obedience to a determinate and common human superior 2. That same determinate and common human superior is not in habit of obedience to any other human superior. Why? Positivists aim to demystify law and believe that natural law has mystified the idea of human sovereignty. Political Sovereignty is aligned with politically moral legitimacy. o Austin believed England’s sovereign was a combination of: ▪ 1. Monarch ▪ 2. House of Lords ▪ 3. Electors of House of Commons Electors- NOT the elected representatives Who habitually obeys who? o Hart argues that this model makes no sense and implies that the bulk of society is habitually obedient to itself in a Democratic context. September 20th, 2024 4 Elements that are Distorted by the Command Theory of Positive Law o 1. Distorts the nature of legal obligation and legal duty  ▪ Law and legal order as the “gunman situation writ large” section 2 of the article ▪ Austin is equating legal order with compulsion, or confusing having an obligation with being obliged. Having an obligation o Legal order Being obliged o Largely a psychological notion according to Hart ▪ State of affairs, judgments ▪ Austin is aware of issue and brings in a predictive connection between noncompliance and sanction X (sanction) will follow y (noncompliance) o Empirical/scientific + verifiable ▪ Austin’s view fails to account for the internal aspect of rules and rule following (perspective of committed participants) ▪ For Hart, all rule-governed social practices (law, etiquette, football, fashion, etc.) are normative in the sense of having norms or standards for judging right/wrong “moves” and “penalties” according to the rules o 2. Distorts legislation and law-making o 3. Distorts Law in Democracy o 4. Distorts a Category of Rules called Secondary Rules ▪ For Hart, the heart of a legal system (he also calls it a crucial tool for the analysis of law) is a combination of primary rules of obligation and secondary rules of recognition, change, and adjudication. September 23rd, 2024: The Command Theory Distorts: o 1. The notion of legal obligation and legal duty ▪ Austin confuses being obliged with having an obligation. ▪ For Hart, law is not mere compulsion, but a “normative” system of rules that is obligatory/binding because rules of law are taken as crucial for social life Like rules of a game Legal right vs legal wrong o 2. Distorts nature of legislation ▪ Legislation refers to a law-making function The source (or sovereign) is a person or group of people that are loosely above the law o Austin portrays the sovereign as a habit of obedience Law expresses the general commands of the sovereign Hart argues that legislation cannot be adequately explained without reference to “fundamental accepted rules specifying the law-making function” (pg. 90) o Need for “rules of change” (secondary rules) that empower people to make laws and specify a procedure/process ▪ They must be valid or authoritative Source for valid rules is a rule of recognition The rule of recognition is the ultimate/basic rule in a system since it is the source of validity for rules of change and rules of adjudication (which in turn indicate valid primary rules of obligation o The ultimate rule is a customary practice of acceptance by officials.  ▪ Ex. U.S. customary practice of “accepting” U.S Constitution. ▪ Ex. Queen/King says so in parliament (customary practice of acceptance by officials) - page 90/91 Hart adds o 3. Distorts democracy o 4. Distorts many important kinds of rules (secondary rules) Sept. 25, 2024 4 Ways that Austin’s Theory is Distortive Commented [TH31]: Gunman Situation writ large Commented [TH32R31]: Commands, duties, and 1. Legal Duty/Legal Obligation sanction (sovereign) o Hart’s own account Commented [TH33R31]: Sovereign refers to a person. or gf (?) "outside" the law and source of all law-making ▪ Legal order as a normative system of rules that obligates/binds people Legal positive vs legal wrong 2. Law-making Function o Law-making is a rule-governed process that authoritatively makes/alters laws ▪ Appeal to ultimate source for identifying valid rules in the system  Rule of recognition ▪ Rules of change One kind of secondary rule o 1. Rules of Change o 2. Rules of Adjudication o 3. Rule of Recognition 3. Democracy o Elected representatives ▪ Are people in a habit of obedience to elected representatives who make laws or vice versa? - Austin’s puzzle In England, Austin appealed to a combination of the monarch, the house of lords, and the electors of the house of commons In the U.S, it would be a combination of President, supreme court, and electors of both houses This means that the bulk of society is in the habit of obedience to the bulk of society 4. Secondary Rules (vs primary rules of obligation (rules to do x or not do x)) o All other kinds of rules are distorted by representing them as Commented [TH34]: power-conferring rules commands to do x or else Commented [TH35R34]: Rules that confer private powers ▪ He expressed his quote the dogmatic determination to suppress ex. rules to make contracts, wills, and trusts. 1 aspect of a legal system simply in order to maintain the They enable and facilitate the creation of legal relationships simplicity of your theory. So he says to use this device of an Commented [TH36R34]: Rules that confer public indirect command is just to be dogmatic about. It's not really power (ex. rules of change and rules of adjudication) not a theories are supposed to be tested by how well they take Commented [TH37]: law as top-down and repressive, prohibiting people from doing things account of the data. You don't twist all the data fitness theory and and part of saying what Austin is doing is distorting the data to fit his. To make all these things seem like, ohh, they're really just this prohibiting people from doing things. A heart gives an analogy to explain this. Page 91. Because in analogy with the rules of baseball, he says, quote, one might as well urge that the rules of baseball were really only complex, conditional directions to the score, and that this showed their real or  essential nature. Because I want to see what he's saying here. So is he saying that all of this stuff in the game isn't actually them trying to get points from one another, it is them just doing a already predetermined thing in order to illustrate that someone has points or it's. If you're on the right track the hardest, trying to say that Austin's theory is like taking a game of baseball, hmm, and treating it as if the whole point of the game is for Pendleton penalties to be given out for wrong moves. And this is a distortion of the game of baseball because really the penalties enable the game to be played, facilitates the playing of the game. And so to say that it's all about just giving penalties misses the point. Of what's essential here baseball baseball's rules are about enabling you to play a game they're not the whole point of them is not for people to give you penalties, you know, as if that's the as he puts it, the essential nature of the game of baseball but in the same way we're treating. boston's tree law like that like the whole point of it is to finally get you for finally punish you for breaking the rules when law does happen what is important to say what does have the settlement for heart but it also ready Terms of superior and inferior. Obviously works best in A1 directional manner. If you have a pyramid structure, aristocratic classes, then it's very clear to see how law and power works. With democracy, all of a sudden we don't have a nice pyramid. We have a confusion thing, right? And really? Well, I won't get into what what really are the habits of obedience of people and how do they work in the context of democracy is incredibly complicated and arguably doesn't get to what democracy is or how, say, the separation of powers works. In the United States right now, according to heart. Remember this Who's the sovereign in the United States? If we're Austin, sorry, If we're Austin is a solid president, please. Is it in the United States? In the United States? Is president in charge? Ohh, wait, isn't it? One, the citizens are in charge because they're in a bulk. They're in a habit of obedience to the bulk of society. Well, you have. I mean, if we're just  describing Austin's view, we're supposed to look at habits of obedience. But really, you could say people aren't habit of obedience to the laws. Where did the laws come from? And you could talk about the source of laws and that's a a hint at getting wealth. Who would what, what commands are these expressions of, you know, whose commands right. And so you're mentioning. The president and I also mentioned the Supreme Court, right? What about? Legislators. Austin had a a problem where. Are people in a habit of obedience to their elected representatives, or our elected representatives in a habit of obedience to the people? You see the problem? So democracies we're talking about, OK, I should put this. So with democracies we have. The elected representatives which are muddying things and saying. Sept. 27, 2024 Command Theory Distorts o 1. The notion of legal and legal duty ▪ Austin confuses being obliged with having an obligation/duty ▪ For Hart, law is not a mere compulsion, but a normative system of rules (like rules of a game) Obligatory because rules of law are taken as crucial for social life o 2. Nature of legislation ▪ Hart argues that legislation cannot adequately be explained without reference to "fundamentally accepted rules specifying the law-making function" Legislation: source is in a person or group of people above the law (sovereign)  o law expresses the general commands of the sovereign need for "rules of change", empower some people to make laws and specify a procedure/process Special Hind of secondary rules: o they need to be valid and authoritative ▪ source for valid rule is a rule of recognition: The rule of recognition is the basic rule in a system since it is the source of validity for rules of charge and of adjudication (which in turn indicates valid rules of obligation) o Ultimate rule is customary practice (NOT formal rule) of acceptance by officials o 3. Democracy and elected representatives ▪ Austin's puzzle are people in habit of obedience to elected representatives or vice versa ▪ In England Austin appealed to a combo of monarch, house of lords and electors of house of commons in US: combo of president, supreme court and electors of both houses This leaves the bulk of society in habit of obedience to the bulk of society o 4. many important kinds of rules /secondary rules ▪ all other kinds of rules are distorted by representing them as commands to do x or else commands to do x or else – law as top-down repressive (Prohibiting people from doing things) rules creating rights property rights and rights to freedom of expression (indirect commands) power conferring rules o rules that confer private powers - erase and facilitate the creation of legal relationships ▪ Ex. rules to make contracts, wills, and trusts o rules that confer public powers ▪ Ex. rules of change and adjudication  Positive law: separation thesis and social thesis. Both Hart and Austin are positivists: o Separation thesis: the study of law should be separated from the moral evaluation of law o The validity of laws are determined by a social reality: o Austin: Command of the sovereign o Hart: rules of recognition, i.e. customary practices of acceptance by officials Hart’s version of positivism: o Legal norms and legal obligation: ▪ Law as a normative system of rules, distinguished by notions of legal right and legal wrong. ▪ Legal norms impose obligations ▪ Laws are rules accepted by those of a society (like rules of a game) that are thought to be important enough to justify sanctions à Thus binding. o Key to Jurisprudence: ▪ Primary rules Obligation ▪ Secondary rules Change o Rules that govern law-making Adjudication o Rules that govern judgments Recognition o N.B. Not a rule in itself, a customary practice of acceptance by officials of what makes rules valid. Thus not in itself valid or invalid. o Thought experiment: ▪ Imagine a society with only primary rules of obligation. Three defects: Uncertainty about identifying valid rules in the system. o Solution: rule of recognition. Static character of primary rules of obligation. o Solution: rules of change. Inefficiency of general rules when it comes to applying them. o Solution: rules of adjudication. o When does a legal system exist? ▪ The rules of behaviour validated by rule of recognition must be generally obeyed by the bulk Oct. 2, 2024 Test on Monday o Working is going to start off criticizing heart hearts view part and both of them. And then we're going to look at a number of challenges to general jurisprudence. So if you think the whole thing seems wrong general verse. Students, the next part of the class, we're going to look at a number of challenges like pragmatism and legal realism and pluralism, all these different critical race theory, feminism, all that kind of stuff. So, but it's crucial to know what their challenge is. Right. And that's why I'm spending some time on this. Any questions? OK, so I want to finish off part and so. I was getting close to the member of summing it up, the different aspects, and I was on to the part where talking about heart spot experiments that he does, and this is how he articulates and argues for these three kinds of secondary rules, secondary rules of. Change education, recognition. He does this with this thought experiment, so I'm not going to go into it in detail, but I'll remind you that basically he asked us to imagine a society with only primary rules, obligations. These are rules of the form. Do wax or don't do wax and all systems. Numbers so we're looking at a system of primary rules. So we know it's going to be it's going to have some rules prohibiting things like violence, theft, because all legal systems have this humble minimum heart describes of the same. Prohibitions because of the way our bodies are, because of contingent facts about our world. So he says, you know, any society bound by primary rules must have some rules that restrict, free use of violence, theft and deception to which human beings are tempted. He also adds that since we're talking about just no courts, no legislature. The majority of people must accept those rules, so we're  also making an assumption that it's a small group, so he says, a small community closely knit by ties of kinship, common sentiment and belief and placed in a stable environment. So again, we're assuming a relatively stable. Environment this way. This is a thought experiment because we're going to make it a little artificial. Assume we have a small community and stable environment where they most of them accept. The same rules OK in such an environment. With the Pines, a system of primary rules, 3 defects will arise which will necessitate three kinds of remedies. So you know he talks about 3 defects. And it's important to say there's three defects in the system. So we're not talking about an individual rule here. We're talking about a system, 3 defects in a system. Of primary rules. 3 Defects in a system of primary rules of obligation o Pre-legal order o 1. Defect of Uncertainty about identifying valid rules in the system ▪ Remedy: Rule of Recognition The source of identifying valid rules o 2. Defect of the Static Character of a system of primary rules (primary rules cannot change themselves) ▪ Remedy: Rules of Change Empower people to legislate and often provide process for doing so o “public power” - power conferring rules o 3. Defect of Inefficiency of general rules when it comes to applying them ▪ Remedy: Rules of Adjudication The power to adjudicate/apply law/public law Rule of Recognition o Importance: functions as a foundation for legal system o In modern legal systems with multiple sources of law, the rule of recognition will often have hierarchical criteria ▪ Criteria is referred to as pedigree ▪ It's got to be a way of when they conflict, what overrides what in England. This parliament principle of parliamentary supremacy and that overrides precedent, right? So you'll have some kind of way of settling those kind of different sources. This criteria, by the way, is what Morgan will refer to as pedigree tests. Or valid law, depending on who's doing the work and later. This is what he's referring to about HEAD agreement. That agreement. I'm facing back the the ancestries you go off find out executed rather not it's marks. Laws have that too. They have validity in terms of where they came from. Looking back into the past you could trace it to a specific. Date. This day it was made by this legislative body. This day it was applied like this part of this decision, right? And those things are authoritative according to the rule that Commission ultimately or foundation where you're tracing back law till there's nothing left to trace. That too, all right, or you get a practice so. Heart acknowledges on page 119 also acknowledges that in the day-to- day life of the legal system, there's a quotation. Its rule of recognition is very seldom expressly formulated as a rule. So he's he's saying in the day-to-day life. Of any legal system, you're not going to find people talking about the rule of recognition as a rule or stating it, formulating it like those rules, he adds on page 119. Again, for the most part, the rule of recognition is not stated. But its existence is shown in the way in which rules are identified, either by courts or other officials or private persons or their advisors. So. Umm. We have this important idea, the source of validity, and he's already saying. It can't be identified like other rules because it is not valid like other rules. And if you think I'm reading into part, let me just add on page 123. He makes this about as explicit as he can, so if  he didn't believe me. He says so. This is heart in his own words. No such question can arise as to the validity of the very rule of recognition which provides the criteria. It can neither be valid nor invalid. But is simply accepted as appropriate for use in this way, so he's a very explicit about this. The rule of recognition is not valid nor invalid. Without telling you is you can't treat it the same way as you do other rules. You can't identify it the same way as you identify other rules. Remember these other rules we identify by this process of pedigree looking back right to an origin, but the rule of recognition. We can't identify that same way because it is the basis for identifying valid rules. It is not itself identifiable in that way. So he's got a problem. It seems right. The problem is, well, how do we identify this stigma? If people don't formulate it as a rule number, he said, People don't, They seldom formulate this as a rule, and yet we can't identify it in the same way we identify other rules in the system. How do we? Uh, determinant at all? How do we know it exists? Does everyone see the problem? So what he argues is. World recognition is not. valid but we can determine its existence so let me talk about the existence of the new recognition o Rule of Recognition is not valid nor invalid ▪ Not identifiable in the way other valid rules are identified ▪ It is seldom stated, but its existence can be shown in the practice of officials in the system Officials make use of the rule of recognition in identifying authoritative sources for law o There's a factual character to the existence of the rule of recognition ▪ In the fairly consistent practice of officials, but also in beliefs, statements, of acceptance by officials ▪ Internal point of view ▪ Basis for judging/evaluating other officials  ▪ Normative, but not necessarily morally normative o This is a customary practice, but not SIMPLY a customary practice. ▪ It's also one of acceptance by officials When does a legal system exist? o The existence of a legal system is a “Janus-faced” statement, meaning it looks in 2 directions. o Behavior so. it involves kind of two necessary and sufficient conditions so the first is that the rules of behavior validated by assistance ultimate rule of recognition must be generally obeyed by people so o 1. The rules of behaviour validated by rule of recognition must be generally obeyed by the bulk of society. o 2. the secondary rules of recognition, change, and adjudication must be effectively accepted as norms/standards by officials Oct. 4 Test on Monday: 2 questions Exclusive Legal Positivism o Joseph Raz + Marmor o Rule of recognition never includes moral criteria as conditions for legal validity ▪ This view denies a necessary connection, but also denies a contingent connection Inclusive Legal Positivism o Hart o Rule of recognition in some, but not all, legal systems may indicate moral criteria for legal validity ▪ U.S Constitution appeals to moral criteria, like justice ▪ Denies necessary connection, but acknowledges a contingent one If one is a legal positivist (maintaining the separation thesis), how is the “rule of law” (positive law) a “virtue”? o We generally think of the rule of law as a good thing ▪ Something we ought to strive for and something that society ought to maintain o For Aquinas/Natural Law, the rule of law is clearly good. ▪ The rule of law is essentially law (an ordinance of reason for the common good...) Rational/directed to common good/Just Commented [TH38]: organic whole ▪ What about human law? Why is it necessary? There is a temporal contingent realm where we need them to promote human good. It is necessary to promote the common good in the temporal realm. Enabling us to flourish ▪ Substantive Conceptions of the rule of law Rule of law is the rule of “good” laws” Commented [TH39]: For Aquinas: Common good For Radbruch: universal and inalienable rights Raz criticizes this For others: democracy is crucial to the rule of law Where does the Taliban and mishmash of things and Commented [TH40R39]: Content or substance of laws we're saying, well, how do they all fit together and remember the common good? This is a organic whole. With pieces sitting like parts of the body. Right? But where the heck does democracy fed through finance and the common good? I had someone defending a thesis on Aquinas and ohh, we could put that aside. No, you can't just put that aside. It's democracy. Like, it's not a minor point. It's the Enlightenment happens. Yeah. OK. And what I'm saying is? Think about it. Even if you could say the dual law has some formal features, Thomas wanted to connect it to the common good. Fair enough. But what you're connecting it is to this complex thing that involves all sorts of things that involve individual rights. Does it involve democratic participation? These are questions right when even reading reading, the clients use them. He does talk about democracy, but I don't think he pushes the debate much further than Plato. Plato has more  subtlety talking about democracy. That's quite right. So what I'm saying is, let's think of it. I want to explain the rule of law, and I'm getting into democracy and I'm getting into equality and I'm getting into freedom. Where's that fit? And I need a whole picture of that just to give an account of the rule of law. How useful is the rule of law as a notion if it has to? Include this whole big picture. So bras is is making an explicit criticism of Aquinas. Challenge your clients when we're defending the clients and this theory, how useful is it for jurisprudence when we get bogged down in this nebulous notion called the common good? And it's it's a huge beast, don't they? And you know, even finish puts 1 little line. Of common good, but it is a beast of a of a notion that would see that. And if we get bogged down in that, well, how useful is this notion? OK, I'll theoretically useful to you. So Raz is going to try to say I'm going to give you an account of rule of law that presents it as a distinct virtues, distinct from things. Like democracy and rights, OK. And he says that explicitly in his mind. That it's a mistake, He says it's the common mistake is to think of the rule of law involving, quote, democracy, justice, equality before the law or otherwise human rights of any kind and respect for persons, for the dignity of man. So he says a lot of people confuse the notion with those. Other things. And what he's going to say is I'm going to present a formal conception of the rule of law and its birth, and then explain and then explain. It's virtue. Or value. And what we're going to have is a persistent value. how you then we're going to see how this is distinct from other virtues that law can have which relates to a substance so already 1 ▪ Formal Conceptions of the rule of law  Raz will defend and then explain its virtue/value Raz’ Formal Conception of the Rule of Law o Basic Idea/Intuition: law should be such as to be capable of effectively guiding the conduct or behaviour of people. ▪ Based on this, he has 8 Principles of the Rule of Law, divided into Part 1 (Principles that enable law to effectively guide conduct) and Part 2 (Legal machinery of applying and enforcing rules should facilitate the effective guidance of conduct by rules) ▪ Part 1: Principles that enable law to effectively guide conduct 1. Laws should be prospective, open, and clear Commented [TH41]: promulgation, not secret laws (like in nazi germany!), basically public laws that people 2. Laws must be relatively stable know about o If laws are constantly changing, how can you use them to guide your behaviour? It undermines the ability for people to know what the law is at a given time. 3. The making of laws should be guided by open, stable, clear, and general rules o Basically just keep the other two in mind when making laws ▪ Part 2: Legal machinery of applying and enforcing rules should facilitate the effective guidance of conduct by rules. 4. An independent judiciary 5. Principles of natural justice (fair and open hearing) 6. Review powers with respect to ??? The rule of law 7. Courts should be accessible 8. The discretion of crime defending agencies should not be allowed to pervert the law o police/prosecutors should not pervert the law ▪ All of these principles are formal, meaning they’re compatible with ▪ 3 Main Values to the formal conception to law – know them Part of economy agency  Necessary part of dignity ▪ Rule of law is like a sharp knife More effective, but neutral in what it does