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W1: Jurisprudence and the Nature of Law The word ‘jurisprudence’ has more than one meaning ØJurisprudence as a body of judicial decisions (as in the expression ‘the constitutional jurisprudence of the High Court’) ØIurisprudentia = Iuris (of right, of law) + prudentia (wisdom, foresight, knowledge) ØJurisprudence as the philosophy of law à (general) jurisprudence as a philosophical inquiry into the nature of law ØBrian Bix uses the terms ‘jurisprudence’, ‘philosophy of law’, ‘legal theory’, and ‘legal philosophy’ interchangeably throughout his book (see ‘Preface to the ninth edition, p. vii) Five kinds of questions 1) Doctrinal questions 2) Empirical questions Explanatory/causal theories vs effects theories 3) Normative questions Descriptive vs normative claims (is/ought) Justificatory and critical theories 4) Meta-theoretical questions 5) Conceptual questions For example: what is justice?; what is a contract?; what is law? Prof John Gardner on the value of studying jurisprudence/philosophy of law As a philosophical subject, jurisprudence can assist in our development as human beings There are also two practical implications ØJurisprudence contributes to excellence in argument ØStudying jurisprudence can help us recognise different perspectives and different aspects of a given legal issue “A philosophical education encourages us to look […] for timeless problems underlying topical problems” (p. 8) Herbert Lionel Adolphus Hart (1907-1992) Professor of Jurisprudence at the University of Oxford and Fellow of University College, Oxford (1952-1973) Inaugural lecture at Oxford: Definition and Theory in Jurisprudence (1953) The Concept of Law (1961; 2nd edn 1994; 3rd edn 2012) What is law? Unending theoretical debate in books vs the ability of most people to cite examples of law Consider the “salient features” listed at page 3 of The Concept of Law (CL) The question “what is law?” expresses perplexities about the general nature of law Clear/standard/paradigm cases of law (for Hart, “the legal systems of modern states”) vs questionable/challengeable/borderline cases (for Hart, “primitive law and international law”) Speculation about the nature of law à a few principal issues Confusion about these issues may coexist with a firm knowledge of the law H.L.A. Hart’s project “In law as elsewhere, we can know and yet not understand” (H.L.A. Hart, ‘Definition and Theory in Jurisprudence’, in his Essays in Jurisprudence and Philosophy, Oxford University Press, 1983 , p. 21) “My aim in this book has been to further the understanding of law, coercion, and morality as different but related social phenomena.” (H.L.A. Hart, Preface to his The Concept of Law, OUP 1994 ) “The deep perplexity which has kept alive the question [‘what is law?’], is not ignorance or forgetfulness or inability to recognize the phenomena to which the word ‘law’ commonly refers.” (H.L.A. Hart, The Concept of Law, OUP 1994 , p. 5) The purpose of Hart’s The Concept of Law The purpose of the book “…is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be tested; it is to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena.” (CL, 17) Three persistent questions “We shall distinguish here three [...] recurrent issues, and show later why they come together in the form of a request for a definition of law or an answer to the question ‘What is law?’, or in more obscurely framed questions such as ‘What is the nature (or the essence) of law?’” (H.L.A. Hart, The Concept of Law, OUP 1994 , p. 6) 1.How does law differ from and how is it related to orders backed by threats? 2.How does legal obligation differ from, and how is it related to, moral obligation? 3.What are rules and to what extent is law an affair of rules? Looking for a map… “…even skilled lawyers have felt that, though they know the law, there is much about law and its relations to other things that they cannot explain and do not fully understand. Like a man who can get from one point to another in a familiar town but cannot explain or show others how to do it, those who press for a definition need a map exhibiting clearly the relationships dimly felt to exist between the law they know and other things. Sometimes in such cases a definition of a word can supply such a map: at one and the same time it may make explicit the latent principle which guides our use of a word, and may exhibit relationships between the type of phenomena to which we apply the word and other phenomena.” (CL, 14) Law, triangles, and elephants Triangle (def.) = three-sided rectilinear figure Elephant (def.) = quadruped distinguished from others by its possession of a thick skin, tusks, and trunk These definitions are definitions per genus et differentiam This type of definition does two things at once: It simultaneously provides a code or formula translating the word into other well-understood terms; and locates for us the kind of thing to which the word is used to refer, by indicating the features which it shares in common with a wider family of things and those which mark it off from others of that same family à general kind + distinguishing features Can we define law per genus et differentiam? The Problem about the Nature of Law According to Joseph Raz, there are three possible perspectives: 1)Linguistic approach 2)Lawyers’ perspective 3)Institutional approach Dickson on the problem of the nature of law “[…] recent years have seen many thought- provoking challenges emerge which cast doubt on the very possibility of, and/ or call into question the current manner of engaging in, that part of the philosophy of law which attempts to identify and understand law’s nature.” (J. Dickson, Elucidating Law, Oxford University Press, 2022. pp. 11-12) “Some […] theorists are wary of the idea that a human- made social construction such as law can have a nature which legal philosophers can attempt to identify and explain. Others mount challenges in respect of what they regard as the key method employed by legal philosophers attempting to ascertain law’s nature, namely conceptual analysis, and regard that method, either in principle, and/or as currently practised in jurisprudence, with sceptical eyes…” (Ibid., p. 12) Dickson’s philosophy of legal philosophy Understanding law by elucidating it: The task of legal philosophy is to illuminate and explain aspects of something that exists in our social reality and that we call ‘law’ Law is a complex phenomenon, and the task of legal philosophy is never-ending Elucidation is an active process which requires one to identify law’s most important and significant features A proper understanding of law can help us appreciate how law bears upon our practical reasoning – for example, it can help us decide if we should take law as having authority over us Hart on the nature of legal theory “My aim in this book was to provide a theory of what law is which is both general and descriptive.” (H.L.A. Hart, The Concept of Law, OUP 1994 , p. 239) ØGeneral in the sense that it is not tied to any particular legal system or legal culture ØDescriptive in that it is morally neutral and has no justificatory aims “As a means of carrying out this descriptive enterprise my book makes repeated use of a number of concepts such as duty-imposing rules, power-conferring rules, rules of recognition, rules of change, acceptance of rules, internal and external points of view, internal and external statements, and legal validity” (Ibid., p. 240) Legal theory and the real world Dosso v. Federation of Pakistan – the first constitutional case after the promulgation of the Constitution of Pakistan in 1956 (decided by the Supreme Court of Pakistan in 1958), dealing with the imposition of the first martial law by President Iskander Mirzia. Madzimbamuto v Lardner-Burke and another 1 AC 645 – a decision of the Judicial Committee of the Privy Council on United Kingdom constitutional law and the constitutional law of Rhodesia. The case raised the issue of the legality of the Unilateral Declaration of Independence made by Rhodesia in 1965. The Miller case – UK first case on Brexit (decided by the UK Supreme Court in 2017), considering whether the British Government could withdraw from the European Union without an Act of Parliament giving permission to do so The Miller case For that reason, we would not accept that the so-called fundamental rule of recognition (i.e. the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal. One argument advanced by the Lord Advocate and by Ms Mountfield QC on behalf of the first interested party is that the UK’s withdrawal from the EU will alter the UK’s rule of recognition: that is to say, the rule which identifies the sources of law in our legal system and imposes a duty to give effect to laws emanating from those sources. John Finnis on law and philosophy Making, acknowledging, and complying with law involves acts of rational judgment. The reasonableness and justification of these acts cannot be assessed without premises about true human goods, the nature of persons and their acts, and the contours of the common good and human rights. […] Issues of legal doctrine and interpretation resolvable by technique usually have some intellectual appeal. But legal studies are really attractive and worthwhile because law, and juristic argumentation, is an arena where themes and theses in ethics, political theory, and related philosophical domains all come to bear on – and crystallize out in – legislating and adjudicating to make a difference to human persons. J. Finnis, Philosophy of Law: Collected Essays Volume IV (OUP, 2011) Why study jurisprudence? Legal philosophy is here to remind you that you are not a slave to your own (legal) head, that there is an escape from the ‘default setting’ of your own little legal system, however profitable and powerful it may be. It will explain how something that is true ‘legally speaking’ may be utterly false. It will show you the difference between the way things are around here and the way things ought to be. It may even help you envision the way things could well be, if only we cared enough. Semper Viridis - Les Green on law, philosophy, and some other passions (blog) - https://ljmgreen.com/2020/08/30/why-study-jurisprudence/ Summary Some key distinctions: ØDescriptive vs normative statements ØJustificatory vs critical theories ØEmpirical vs conceptual questions The question ‘what is law?’ and H.L.A. Hart’s philosophical project Bear in mind the problem about the nature of law, legal reasoning, and legal theory ØJurisprudence as the philosophy of law? ØMethodology and legal theory (If you have time, have a look at the further readings) W2 - The Imperative Theory of Law John Austin, The Province of Jurisprudence Determined (1832) ØLecture I ØLecture VI H.L.A. Hart, The Concept of Law (1961) ØChapter II (‘Laws, Commands, and Orders’) ØChapter III (‘The Variety of Laws’) ØChapter IV (‘Sovereign and Subject’) Can law exist without coercion and/or sanctions? Is coercion an essential feature of law? à What is this week’s problem? Hart on law and coercion 1.How does law differ from and how is it related to orders backed by threats? 2.How does legal obligation differ from, and how is it related to, moral obligation? 3.What are rules and to what extent is law an affair of rules? This week, we are analysing the claim that “…the key to the understanding of law is to be found in the simple notion of an order backed by threats, which Austin himself termed a ‘command’.” HLA Hart, The Concept of Law (OUP, 3rd ed, 2012) 16 Preface to The Concept of Law “I am heavily and obviously indebted to other writers; indeed much of the book is concerned with the deficiencies of a simple model of a legal system, constructed along the lines of Austin's imperative theory. But in the text the reader will find very few references to other writers and very few footnotes. Instead, [the reader] will find at the end of the book extensive notes designed to be read after each chapter […] I hope that this arrangement may discourage the belief that a book on legal theory is primarily a book from which one learns what other books contain.” HLA Hart, The Concept of Law (OUP, 3rd ed, 2012) vii Austin’s theory of law “To some it has seemed clear that in this situation where one person gives another an order backed by threats, […] we have the essence of law, or at least ‘the key to the science of jurisprudence’. This is the starting-point of Austin’s analysis by which so much English jurisprudence has been influenced. (CL, 6-7) “The clearest and the most thorough attempt to analyse the concept of law in terms of the apparently simple elements of commands and habits, was that made by Austin in the Province of Jurisprudence Determined. (CL, 18) John Austin (1790-1859) Called to the Bar (1818) Married Sarah Taylor (1919) Chair of Jurisprudence and the Law of Nations, University of London (1826-1835) Bonn, Germany (1827-1828) The Province of Jurisprudence Determined (1832; 2nd edition 1861) Lectures on Jurisprudence, or the Philosophy of Positive Law (1863) Jurisprudence and positive law “The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors.” (PJD, 18) Law = “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him” (PJD, 18) According to Austin, there are four kinds of laws: Divine law (Austin rejects the notion of Law of Nature) Positive laws (set by political superiors) Rules of positive morality Objects metaphorically termed laws Lecture I Laws or rules properly so called, are a species of commands A command has two elements: (i)a signification of desire; and (ii)the party to whom the command is directed is liable to evil in case they do not comply with the expressed desire Command and duty are correlative terms: wherever a duty lies, a command has been signified; and wherever a command is signified, a duty is imposed Evil = sanction, or an enforcement of obedience (note: for Austin, punishments are a class of sanctions) Austin’s definition of ‘command’ Three ideas are captured by the term ‘command’: A wish/desire conceived by a rational being that another rational being shall do or forbear An evil to proceed from the former, and to be incurred by the latter, in case the latter does not comply with the wish An expression/intimation of the wish by words or other signs à For Austin, Command, duty and sanction are inseparably connected terms/concepts Austin’s definition of a law/rule properly so called A law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class Laws (and other commands) proceed from superiors and bind/oblige inferiors Austin understands superiority to mean might: i.e., the power to affect others with evil or pain, and of forcing them through fear of that evil, to fashion their conduct to one’s wishes Whoever can oblige another to comply with their wishes, is the superior Superiority is the power to enforce compliance with a wish Lecture VI How can we distinguish positive laws from other kinds of commands? “Every positive law is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme” (PJD, 165) Three inseparably connected expressions: Sovereignty Subjection Independent political society Society – Political and Independent A given society is a society political iff (if and only if) the generality of its members is in a habit of obedience to a determinate and common superior A given society is a society political and independent iff that superior does not habitually obey another person or body A given society is in a state of nature, or split into two or more independent political societies, unless habitual obedience is “…rendered by the bulk of its members […] to one and the same superior…” (PJD, 169) Austin’s legal positivism “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” (The Province of Jurisprudence Determined, Lecture V) “Expounding principles and distinctions which are the appropriate matter of jurisprudence, I shall present them abstracted from every particular system. But I shall also endeavour to illustrate them by examples from the two particular systems which I have studied with some accuracy, namely, the Roman Law, and the Law of England.” (Lectures on Jurisprudence or the Philosophy of Positive Law, Lecture XI) The gunman situation “The gunman orders his victim to hand over his purse and threatens to shoot if he refuses; if the victim complies we refer to the way in which he was forced to do so by saying that he was obliged to do so. To some it has seemed clear that in this situation where one person gives another an order backed by threats, and, in this sense of ‘oblige’, obliges him to comply, we have the essence of law, or at least ‘the key to the science of jurisprudence’. This is the starting-point of Austin’s analysis by which so much English jurisprudence has been influenced.” HLA Hart, The Concept of Law (OUP, 3rd ed, 2012) 6 The gunman situation The key aspects of the gunman situation: The gunman is giving an order The bank clerk is in the gunman’s power Coercive orders / Orders backed by threats “Let us recall the gunman situation. A orders B to hand over his money and threatens to shoot him if he does not comply. According to the theory of coercive orders this situation illustrates the notion of obligation or duty in general. Legal obligation is to be found in this situation writ large; A must be the sovereign habitually obeyed and the orders must be general, prescribing courses of conduct not single actions. (CL, 82) Can the gunman situation help us answer the question ‘what is law’? Commands and Orders “Although a suggestion of authority and deference to authority may often attach to the words ‘order’ and ‘obedience’, we shall use the expressions ‘orders backed by threats’ and ‘coercive orders’ to refer to orders which, like the gunman’s, are supported only by threats, and we shall use the words ‘obedience’ and ‘obey’ to include compliance with such orders.” (CL, 19) “To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority. It is obvious that the idea of a command with its very strong connection with authority is much closer to that of law than our gunman’s order backed by threats…” (CL, 20) The gunman situation and the complexity of modern legal systems According to Hart, four elements should be added to the gunman situation to have a plausible model for law: Generality (general type of conduct + general class of persons) Enduring character General habit of obedience Supremacy and independence (see CL, 24) “If, following Austin, we call such a supreme and independent person or body of persons the sovereign, the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign.” (CL, 25) Hart’s criticisms Three groups of objections (Chapter III): The content of laws ØDuty-imposing and power-conferring rules Their range of application Their modes of origin A more fundamental criticism (Chapter IV): “…the whole conception of a supreme and independent sovereign habitually obeyed, on which the model rests, is misleading, since there is little in any actual legal system which corresponds to it.” (CL, 27) Chapter IV – Sovereign and Subject 1)The idea of a habit of obedience Can this idea explain two salient features of most legal systems? ØThe continuity of law ØThe persistence of law 2) The legally unlimited power enjoyed by the sovereign 3) The position occupied by the sovereign above the law Habits vs Rules In both cases we can observe convergence of behaviour… However, according to Hart, there are three salient differences: 1.Deviations from a rule are met with criticisms 2.The rule is regarded as a good reason for making such criticism 3.(Social) rules have an internal aspect For Hart, “…habits are not ‘normative’: they cannot confer rights or authority on anyone.” (CL, 60) Law and Coercion “There are two sources of continuing interest in the relationship between law and coercion, one clarificatory, the other evaluative.” (G. Lamond, 'Coercion and the Nature of Law' (2001) 7(1) Legal Theory 36) Views on the connection between law and coercion (ibid, 42-45): ØCoercion is the genus of which law is a species (Austin) ØLaw is a distinctive form of social ordering because of its reliance upon coercion (for Kelsen, law is a coercive social order) ØCoercion is the most salient aspect of law (Bentham, Holmes, Raz) ØCoercion regulates the use of coercion (Bobbio) ØThe point of legal practice is to guide and constrain the coercive power of the state (Dworkin) Summary and tutorial prep Austin’s imperative theory of law Hart’s critical analysis of Austin’s theory of law ØHart’s example: the gunman situation ØIs law the gunman situation write large? ØHart’s criticisms in Chapter III of The Concept of Law ØWhat are the key arguments put forward by Hart in Chapter IV? Reflect upon the relationship between law and coercion Are sanctions a necessary features of law? W3 – Legal Positivism H.L.A. Hart’s theory of law Law as the union of primary and secondary rules Hans Kelsen’s theory of law Law as a coercive, normative order that regulates its own creation, application and execution What is Legal Positivism? Legal positivism as a general theory of law Legal positivism as a methodology Legal positivism as a political theory of law “In the last three chapters we have seen that, at various crucial points, the simple model of law as the sovereign’s coercive orders failed to reproduce some of the salient features of a legal system.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012, 79) “The last three chapters are therefore the record of a failure and there is plainly need for a fresh start. Yet the failure is an instructive one, worth the detailed consideration we have given it, because at each point where the theory failed to fit the facts it was possible to see at least in outline why it was bound to fail and what is required for a better account.” (Ibid, 80) The idea of a rule Habits and rules share one element: we can observe a pattern/convergence of behaviour… However, according to Hart, there are three salient differences: 1.Deviations from a rule are met with criticisms 2.The rule is regarded as a good reason for making such criticism 3.(Social) rules have an internal aspect (“a critical reflective attitude to certain patterns of behaviour as a common standard” – see CL, 57) “…habits are not ‘normative’: they cannot confer rights or authority on anyone.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 60 The idea of obligation “…the theory of law as coercive orders, notwithstanding its errors, started from the perfectly correct appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 82 Let’s revisit the “gunman situation”: According to Hart, “[t]here is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it.” (Ibid, 82) A set of primary rules of obligation According to Hart, a simple social structure of primary rules has three main defects: ØIt is uncertain ØIt has a static character ØIt is inefficient “The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 94 Secondary rules as remedies Uncertainty à Rule of recognition Static quality à Rules of change Inefficiency à Rules of adjudication “If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 98 The foundations of a legal system “Wherever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation. The criteria so provided may, as we have seen, take any one or more of a variety of forms: these include reference to an authoritative text; to legislative enactment; to customary practice; to general declarations of specified persons, or to past judicial decisions in particular cases.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 100 à The existence of a rule of recognition is shown in the way in which primary rules are identified (the RoR is manifest in a general practice) Legal validity “To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 103 Validity and membership (vis-à-vis a system of rules) Ultimacy and supremacy of the rule of recognition (CL, 105-107) Is the rule of recognition (legally) valid? The “validity” of the rule of recognition “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. To express this simple fact by saying darkly that its validity is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 109 Hans Kelsen (1881 – 1973) Born in Prague in 1881 Studied law at the University of Vienna Professor at the University of Vienna (1919) Austrian Constitution (1920) Professor at the University of Cologne (1930) Forced to move to Switzerland in 1933 Forced to move to the US in 1940 Professor at the University of California, Berkeley (1945) The Pure Theory of Law - Stanford Encyclopedia of Philosophy Robert Walter (one of the directors of the Hans Kelsen Institute in Vienna) included a new bibliography of Kelsen's works in his Hans Kelsen: Ein Leben im Dienste der Wissenschaft (Vienna: Manz, 1985), 27–107. Kelsen’s key publications (selected) Das Problem der Souveränität und die Theorie des Völkerrechts (1920). Reine Rechtslehre (1934) – translated into English as Introduction to the Problems of Legal Theory in 1992 Law and Peace in International Relations - The Oliver Wendell Holmes Lectures 1940-1941 (1942) Peace Through Law (1944) General Theory of Law and State (1945) What is Justice? (1957) The Law of the United Nations (1950) “Foundations of Democracy” (1955) Reine Rechtslehre (2nd edition, 1960) Essays in Legal and Moral Philosophy (Weinbergersl., Heath trans.), Dordrecht 1973. Allgemeine Theorie der Normen (ed. Ringhofer and Walter, 1979) - translated into English as General THeory of Norms in 1990 Kelsen’s Reine Rechtslehre Stanley Paulson distinguishes four phases in the development of Kelsen’s pure theory of law: 1.a constructivist phase, from 1911 to about 1920; 2.a strong neo-Kantian phase, from about 1920 to the mid-1930s; 3.a weak neo-Kantian phase, from the late 1930s to 1960; and 4.a skeptical, or empiricist, phase, from 1960 onwards. Kelsen’s Pure Theory of Law was first published in 1934 as Reine Rechtslehre; a revised edition was published in 1960. The second edition was translated into French in 1962 as Théorie Pure du Droit; into English in 1967, as The Pure Theory of Law The Pure Theory of Law (2nd edition) Chapters I.Law and Nature II.Law and Morals III.Law and Science IV.The Static Aspect of Law V.The Dynamic Aspect of Law VI.Law and State VII.State and International Law VIII.Interpretation Kelsen’s On the Pure Theory of Law (1966) The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as "law" only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called "law", as e.g. so-called "natural law". (p. 1) As far as the relationship between law and justice, and formalism is concerned, there is no essential difference between analytical jurisprudence (the founder of which is John Austin in his famous Lectures on Jurisprudence) and the Pure Theory of Law. (p. 4) Kelsen on the nature of law Law is – according to the Pure Theory of Law – by its very nature a definite type of norm. (p. 1) The law is a coercive order (p. 1) It is a peculiarity of the law that it regulates its own creation, application and execution (p. 5) à What is, e.g., the difference between the command of a gangster to give him a certain sum of money and the command of a tax officer which has the same subjective meaning as the former. The answer is, that the command of the tax officer is authorized by an objectively valid legal norm, whereas the command of the gangster is not. (p. 6) à The search for the reason for the validity of the legal norms thus leads to the insight into the hierarchal structure of a legal order (p. 6) Kelsen on legal validity What constitutes the unity of a multitude of norms? Why does a certain norm belong to a certain order? Why is a norm valid – what is the reason for its validity? àFor Kelsen if a norm is valid, then it is binding àThe validity of a norm cannot be a fact àOnly a competent authority can create a valid norm àChain of validity and the historically first constitution àThe basic norm as a transcendental-logical presupposition Hart’s rule of recognition vs Kelsen’s basic norm (Grundnorm) 1.For Hart the existence of a rule of recognition is a complex, empirical question of fact. For Kelsen, the basic norm is a “juristic hypothesis”, a “postulated ultimate rule”, a “fiction”. 2.For Kelsen, a jurist/theorist must presuppose the validity of the basic norm. For Hart, the rule of recognition is neither valid, nor invalid. 3.Kelsen’s basic norm has always the same content (“who laid down the first constitution ought to be obeyed”). For Hart, the rules of recognition in different jurisdictions may well have different content. 4. “One reason for using the expression 'rule of recognition' instead of a ‘basic norm’ is to avoid any commitment to Kelsen's view of the conflict between law and morals.” (CL, 293) Kelsen on positive law “The pure theory of law is a theory of positive law; a general theory of law, not a presentation or interpretation of a special legal order. From a comparison of all the phenomena which go under the name of law, it seeks to discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples. In this manner it derives the fundamental principles by means of which any legal order can be comprehended. As a theory, its sole purpose is to know its subject. It answers the question of what the law is, not what it ought to be. The latter question is one of politics, while the pure theory of law is science.” Hans Kelsen, ‘The Pure Theory of Law and Analytical Jurisprudence’ (1941) 55(1) Harvard Law Review 44 Hart on the existence of a legal system “There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 109 What is legal positivism? According to Leslie Green and Tom Adams (see the ‘Legal Positivism’ entry in the Stanford Encyclopedia of Philosophy): Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790 – 1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” J. Austin, The Province of Jurisprudence Determined (Wilfrid E. Rumble (ed.), Cambridge University Press, 1995) 157 Hart on Legal Positivism “Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , pp. 185-186) My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an important preliminary to any useful moral criticism of law. (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 240) The Hart-Fuller Debate Harvard Law Review, Vol 71, 1958 H.L.A. Hart (1907 – 1992), ‘Positivism and the Separation of Law and Morals’ Lon Fuller (1902 – 1978), ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ H.L.A. Hart, The Concept of Law, 1961 L. Fuller, The Morality of Law, 1964 Peter Cane (ed), The Hart-Fuller Debate in the Twenty-First Century, Hart Publishing, 2010 Jeremy Bentham and John Austin “…Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burns, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws.” (H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, LXXI, 1958, pp. 596) According to Hart the Utilitarians insisted on the separation of law and morals, but… ØThey never denied that many legal rules mirror moral rules/principles (as a matter of historical fact) ØBentham never denied that moral principles might become part of a legal system thanks to explicit legal provisions (see, for example, some constitutional provisions) Two simple things “What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.” (H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, LXXI, 1958, pp. 599) The utilitarian tradition in jurisprudence According to Hart, the utilitarian tradition in jurisprudence has defended the following three doctrines: 1.the separation between law and morals 2.the important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies (though of course it could not supplant them) 3.the famous imperative theory of law (1), (2), and (3) are separate doctrines/claims – they are not a package Is vs. Ought Law as it is vs. Law as it ought to be This is a key distinction defended by Bentham, Austin, and Hart Yet, for some legal philosophers this sharp distinction is intellectually misleading and/or practically dangerous Hart identifies three lines of criticism: ØLaw and morality – in relation to laws and/or a legal system ØLegal positivism and formalism in adjudication ØThe practical problem of the existence of morally evil laws (see, e.g., the Nazi regime) Five meanings of ‘positivism’ Hart identifies five meanings of the term ‘positivism’ in the context of jurisprudence: 1.the contention that laws are commands of human beings 2.the contention that there is no necessary connection between law and morals, or law as it is and law as it ought to be 3.the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries, sociological inquiries, and from the criticism/appraisal of law 4.the contention that a legal system is a “closed logical system” in which correct legal decisions can be deduced from predetermined legal rules by logical means alone 5.the contention that moral judgments cannot be established or defended, as statements of facts can, by rational argument, evidence, or proof ("noncognitivism" in ethics) Different positivist theories of law Bentham and Austin held the views expressed in (1), (2), and (3), but not in (4) and (5) Kelsen held the views expressed in (2), (3), and (5), but not those in (1) and (4) H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, LXXI, 1958, footnote 25 at pp. 601-602 H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 302 à What about H.L.A. Hart? Hart’s theory of law The idea of a social rule Habits vs Rules The idea of legal obligation Being obliged vs Having an obligation Law as the union of primary and secondary rules Legal systems vs Sets of rules The Rule(s) of Recognition Hart’s rule of recognition vs Kelsen’s basic norm The idea of legal validity The existence of a legal system Legal Positivism ØLegal positivism as a general theory of law Law is grounded in social facts (social facts thesis) The existence and content of law depend on its sources and not on its merits (sources thesis) Law and morality are separable, in the sense that we can conceptualise law without any reference to morality (separability thesis) These are descriptive and conceptual claims about the nature of law ØLegal positivism as a methodology Legal theory is a morally neutral, descriptive enterprise This is a meta-theoretical claim about the nature of legal theory ØLegal positivism as a political theory of law Moral criteria of legal validity are not morally desirable (even though they are conceptually possible), so morality and law should be kept separate This is a prescriptive/normative version of the separability thesis W4 – Natural Law Theories Natural law theories dispute the (positivist) claim that law and morality are conceptually separable ØFor legal positivists, the existence of law is simply a matter of social facts/practices The key idea in the natural law tradition is that the law has an essentially moral dimension ØFor natural law theorists, law is a matter of social facts + conformity to certain moral standards (content and/or form) ØProcedural natural law theories – see, e.g., Lon Fuller’s theory ØSubstantive natural law theories – see, e.g., John Finnis’ theory Imperative theory vs. Natural law tradition Hart discusses some key claims associated with the natural law tradition in Chapter VIII (Justice and Morality) and Chapter IX (Laws and Morals) of The Concept of Law “We must now turn our attention to the claim which, in the perennial discussion of the ‘essence’ or the ‘nature’ or ‘the definition’ of law, has been most frequently opposed to the simple imperative theory which we have found inadequate. This is the general contention that between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 155 à What are states without justice but robber-bands enlarged? (Augustine of Hippo) The necessary connection between law and morality (NCLM) NCLM in the Thomist tradition of Natural Law: ØThere are certain principles of true morality or justice, discoverable by human reason without the aid of revelation (even though they have a divine origin); AND ØMan-made laws which conflict with these principles are not valid law (Lex iniusta non est lex) A different interpretation of NCLM: ØFor a legal system to exist there must be a widely diffused, though not necessarily universal, recognition of a moral obligation to obey the law (even though this may be overridden in particular cases by a stronger moral obligation not to obey particular morally iniquitous laws) Hart on the existence of a legal system “There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 109 Hart on the central case of law “The main theme of this book is that so many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to one or both of these two types of rule [primary rules of obligation and secondary rules of recognition, change, and adjudication], that their union may be justly regarded as the ‘essence’ of law, though they may not always be found together wherever the word ‘law’ is correctly used.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 155 Is international law law? “To the innocent eye, the formal structure of international law lacking a legislature, courts with compulsory jurisdiction and officially organized sanctions, appears very different from that of municipal law.” (CL, 232) According to Hart, international law and domestic law (“a municipal system”) do not have the same structure, but there are analogies in relation to their function and content “Those of function emerge most clearly when we reflect on the ways in which international law differs from morality, some of which we examined in the last section. The analogies of content consist in the range of principles, concepts, and methods which are common to both municipal and international law, and make the lawyers' technique freely transferable from the one to the other.” (CL, 237) Three long-entangled issues 1. The first issue concerns the distinction, within the general sphere of morality, of the specific idea of justice and the special features which account for its peculiarly intimate connection with law Ø “…there is one idea, that of justice which seems to unite both fields [law and morality]: it is both a virtue specially appropriate to law and the most legal of the virtues. We think and talk of ‘justice according to law’ and yet also of the justice or injustice of the laws.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 7) 2. The characteristics which distinguish moral rules and principles from all other forms of social rule/standards of conduct 3. The many different senses and ways in which legal rules and morals may be said to be related Jimmy persuades Tuco not to kill Cal and Lars Lindholm Let the punishment fit the crime Eye for an eye Jimmy to Tuco: “You show everybody that you are the man, but that you fair, that you are just” NCLM – Six claims 1.Power and authority 2.The influence of morality on law 3.Interpretation 4.The criticism of law 5.Principles of legality and justice 6.Legal validity and resistance to law (2) and (5) – According to Hart, if this is what the necessary connection of law and morality means, its existence should be conceded NCLM – Power and Authority For Hart, the coercive power of law presupposes its accepted authority Accepted authority of a legal system à internal point of view “…allegiance to the system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do. There is indeed no reason why those who accept the authority of the system should not examine their conscience and decide that, morally, they ought not to accept it, yet for a variety of reasons continue to do so.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 203) NCLM – The influence of morality on law According to Hart, legal systems are influenced by the accepted social morality and, also, by wider moral ideals “In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values; in other systems, as in England, where there are no formal restrictions on the competence of the supreme legislature, its legislation may yet no less scrupulously conform to justice or morality.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 204) “No ‘positivist’ could deny that these are facts, or that the stability of legal systems depends in part upon such types of correspondence with morals.” (Ibid.) NCLM – Principles of legality and justice Perhaps, “…a minimum of justice is necessarily realized whenever human behaviour is controlled by general rules publicly announced and judicially applied.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 206) If social control “[…] is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and […] they must not be retrospective…” (Ibid., p. 207) “…one critic of positivism has seen in these [principles of legality] something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” (Ibid., p. 207) Fuller’s principles of legality Law is the enterprise of subjecting human conduct to the governance of rules Laws must be: General Public Prospective Clear Coherent Practicable Stable Finally, there must be congruence between official action and the law Lon Fuller (1902 – 1978) Carter Chair of Jurisprudence, Harvard University (1948 – 1972) ‘The Case of the Speluncean Explorers’, Harvard Law Review (1949) Problems of Jurisprudence (1949) The Morality of Law (1964; second edition, 1969) Legal Fictions (1967) J. Waldron, “The Rule of Law”, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/ The Hart-Fuller Debate Harvard Law Review, Vol 71, 1958 H.L.A. Hart (1907 – 1992), ‘Positivism and the Separation of Law and Morals’ Lon Fuller (1902 – 1978), ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ Peter Cane (ed), The Hart-Fuller Debate in the Twenty-First Century, Hart Publishing, 2010 Jeremy Bentham and John Austin “…Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burns, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws.” (H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, LXXI, 1958, pp. 596) According to Hart the Utilitarians insisted on the separation of law and morals, but… ØThey never denied that many legal rules mirror moral rules/principles (as a matter of historical fact) ØBentham never denied that moral principles might become part of a legal system thanks to explicit legal provisions (see, for example, some constitutional provisions) Two simple things “What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.” (H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, LXXI, 1958, pp. 599) The utilitarian tradition in jurisprudence According to Hart, the utilitarian tradition in jurisprudence has defended the following three doctrines: 1.the separation between law and morals 2.the important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies (though of course it could not supplant them) 3.the famous imperative theory of law (1), (2), and (3) are separate doctrines/claims – they are not a package Fuller and the ideal of fidelity to law The definition of law ØAccording to Fuller, Hart should “…concern himself more closely with a definition of law that will make meaningful the obligation to fidelity to law.” (Fuller, ‘Positivism and Fidelity to Law’, 635) The definition of morality The moral foundations of a legal order The morality of law itself Ø“Most of the issues raised by Professor Hart’s essay can be restated in terms of the distinction between order and good order” (Ibid, 644) John Finnis and the New Classical Natural Law Theory The idea of judicial power, with special reference to Australian law (DPhil thesis, University of Oxford, 1965) Natural Law and Natural Rights (OUP, 1980; second edition published by OUP in 2011) Aquinas: Moral, Political, and Legal Theory (OUP, 1998) The Collected Essays of John Finnis, 5 volumes (OUP, 2011) “Natural Law Theories”, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/sum2020/entries/natural-law-theories/ Description and evaluation of law “It is often supposed that an evaluation of law as a type of social institution, if it is to be undertaken at all, must be preceded by a value-free description and analysis of that institution as it exists in fact. But the development of modern jurisprudence suggests, and reflection on the methodology of any social science confirms, that no theorist can give a theoretical description and analysis of social facts without also participating in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.” (J. Finnis, Natural Law and Natural Rights, OUP, 2011 , p. 3) How does the theorist decide what is to count as law for the purposes of their description? “The noticeably greater explanatory power of later descriptive analyses of law, such as those of H. L. A. Hart and Joseph Raz, is to be attributed to their fairly decisive break with the rather naive methodologies of Bentham, Austin, and Kelsen. This sophistication of method has three principal features…” (J. Finnis, Natural Law and Natural Rights, OUP, 2011 , p. 6) 1.Attention to practical point 2.Selection of central case and focal meaning 3.Selection of viewpoint Central cases and viewpoints Hart’s critique of Austin retains Austin’s fundamentally descriptive theoretical purpose – Hart’s objection is that Austin’s theory “failed to fit the facts” Descriptive theorists disagree because they disagree on what is important and significant in the field of data and experience with which they are all equally familiar By what criteria is one meaning to be accounted focal and another secondary, one state of affairs central and another borderline? From what viewpoint, and relative to what concerns, are importance and significance to be assessed? The central case of the internal point of view Hart gives descriptive explanatory priority to the concerns and evaluations – and, consequently, to the language – of the persons that engage with their legal system from the ‘internal point of view’, However, for Hart, the internal point of view is an amalgam of very different viewpoints (see page 203 of The Concept of Law) For Finnis, Hart should have focused on the central case of the internal point of view Finnis argues that a theorist cannot identify the central case of the internal point of view unless they consider what the requirements of practical reasonableness really are, in relation to the basic goods that underpin genuine human flourishing Lex iniusta non est lex In this context, the key question is the following: How does injustice affect the obligation to obey the law? For Finnis, ‘the obligation to obey the law’ may mean: empirical liability to be subjected to sanction in event of non-compliance legal obligation in the intra-systemic sense (legal obligation ‘in the legal sense’) legal obligation in the moral sense moral obligation that does not derive from the legality of the stipulation-of-obligation à Unjust laws are not laws in their central case/focal meaning Strong/Weak Natural Law Thesis Lex iniusta non est lex (An unjust law is not a law) According to the Strong Natural Law Thesis, moral soundness/validity if a necessary element of legal validity Ø Unjust “laws” are not legally valid Ø For some theorists (e.g., Gustav Radbruch) only extremely unjust “laws” are not legally valid According to the Weak Natural Law Thesis, unjust “laws” are not laws in the true sense of the word (see John Finnis’ theory of law) Ø Unjust “laws” are morally and legally defective Summary Legal Positivism vs Natural Law tradition Immorality and invalidity of legal rules (Lex iniusta non est lex) Moral obligation to obey the law Hart’s analysis of the NCLM (pp. 202-212 of The Concept of Law) Substantive vs. Procedural Natural Law Theories John Finnis (and the central case of law) Lon Fuller (and the principles of legality) Strong vs. Weak Natural Law Thesis W5 – Dworkin’s Interpretive Theory of Law Ronald Dworkin (1931 – 2013) Professor of Jurisprudence, University of Oxford (1969–98) Taking Rights Seriously (1977) A Matter of Principle (1985) Law’s Empire (1986) Justice for Hedgehogs (2011) N. Stavropoulos, “Legal Interpretivism”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/spr2021/entries/law-interpretivist/ Taking Rights Seriously (1977) Ronald Dworkin’s book defends a liberal theory of law Dworkin is critical of another liberal theory, which he calls “the ruling theory of law” According to Dworkin, the ruling theory of law has two parts, which derive from the philosophy of Jeremy Bentham: ØA theory about what law is (i.e., legal positivism) ØA theory about what law ought to be (i.e., utilitarianism) Dworkin’s book criticises both parts of the theory + the assumption that they are independent of one another For Dworkin, a general theory of law must be normative as well as conceptual Dworkin on legal positivism “The most powerful contemporary version of positivism is that proposed by H.L.A. Hart, and it is Hart’s version which is criticized in this book.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. ix) “Legal positivism rejects the idea that legal rights can pre-exist any form of legislation…” (Ibid., p. xi) “Legal positivism […] is the theory that individuals have legal rights only insofar as these have been created by explicit political decisions or explicit social practice.” (Ibid., p. xii) The Model of Rules I (1967) “I want to examine the soundness of legal positivism, particularly in the powerful form that Professor H.L.A. Hart has given to it. I choose to focus on his position, not only because of its clarity and elegance, but because here, as almost everywhere else in legal philosophy, constructive thought must start with a consideration of his views.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 16) According to Dworkin, these are the key tenets of legal positivism: ØLegal rules can be identified in light of their pedigree ØThere are case in which judges must exercise discretion ØLegal obligation iff the case falls under a valid legal rule Rules, Principles, and Policies “I want to make a general attack on positivism […] My strategy will be organized around the fact that when lawyers reason or dispute about legal rights and obligations […] they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards. Positivism, I shall argue, is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important roles of these standards that are not rules.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 22) à What is the difference between these standards? Principles vs. Policies Principle: “…standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 22) Policy: “…standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change). (Ibid., p. 22) Example: “…the standard that automobile accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong a principle.” (Ibid., p. 22) Legal principles vs. Legal rules “The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 24) A rule is applicable in an all-or-nothing fashion, whereas a principle states a reason that argues in one direction Principles have the dimension of weight/importance, whereas rules do not have this dimension (consider what happens when rules/principles conflict) à It is not always clear from the form of a standard whether that standard is a rule or a principle Dworkin on discretion “The concept of discretion is at home in only one sort of context; when someone is in general charged with making decisions subject to standards set by a particular authority.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 31) “Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction.” (Ibid., p. 31) Discretion in a wick sense Ø“Sometimes we use ‘discretion’ in a weak sense, simply to say that […] the standards an official must apply cannot be applied mechanically but demand the use of judgment” (Ibid., p. 31) Ø“Sometimes we use the term in a different weak sense, to say only that some official has final authority to make a decision and cannot be reviewed and reversed by any other official” (Ibid., p. 32) Dworkin on “strong” discretion “We use ‘discretion’ sometimes not merely to say that an official must use judgment in applying the standards set him by authority, or that no one will review that exercise of judgment, but to say that on some issue he is simply not bound by standards set by the authority in question” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 32) à “Do the principles judges cite in cases like Riggs or Henningsen control their decisions, as the sergeant’s orders to take the most experienced men or the referee’s duty to choose the more aggressive fighter control the decisions of these officials? What arguments could a positivist supply to show that they do not?” (Ibid., p. 34) Riggs v Palmer On 13th August 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer… The testator at the date of his will owned a farm and considerable personal property. […] At the date of the will, and, subsequently, to the death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old. He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him. Elmer Palmer now claims the property, and the sole question for our determination is, can he have it? Francis Palmer, the testator is dead; his will was made in due form and has been admitted to probate; therefore, it must have effect according to the letter of the law. Riggs v Palmer (cont.) It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer. ØHowever, it is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers. ØBesides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. Riggs v Palmer Rational/equitable construction Fundamental maxims of the common law (No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime) – general principles of natural law and justice Our attention is called to Owens v. Owens (100 N. C. 240), as a case quite like this We are bound by the rigid rules of law, which have been established by the legislature We cannot find any support for the argument that the respondent's succession to the property should be avoided because of his criminal act, when the laws are silent But more than this, to concede appellants’ views would involve the imposition of an additional punishment or penalty upon the respondent Dworkin’s key move Fundamental question to ask in light of, e.g., Riggs and/or Henningsen: àWhat is the role played by principles in reaching particular decisions of law? We might treat legal principles the way we treat legal rules and say that some principles are binding as law and must be taken into account by judges and lawyers who make decisions of legal obligation We might deny that principles can be binding the way some rules are. We would say, instead, that in cases like Riggs or Henningsen the judge reaches beyond the rules that he is bound to apply (reaches, that is, beyond the “law”) for extra-legal principles Dworkin on legal principles According to Dworkin, we cannot adapt Hart’s version of positivism by modifying his rule of recognition to embrace principles. This is because we cannot formulate a test of pedigree to capture principles. “If we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule. We have already decided that we must then abandon the second tenet – the doctrine of judicial discretion – or clarify it into triviality. What of the third tenet, the positivists’ theory of legal obligation?” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 44) Dworkin on legal obligation For Dworkin, legal positivists hold the view that “…a legal obligation exists when (and only when) an established rule of law imposes such an obligation. It follows from this that in a hard case – when no such established rule can be found – there is no legal obligation until the judge creates a new rule for the future.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 44) According to Dworkin, if we abandon the positivist doctrine of (strong) discretion and treat principles as law, “…we raise the possibility that a legal obligation might be imposed by a constellation of principles as well as by an established rule. We might want to say that a legal obligation exists whenever the case supporting such an obligation, in terms of binding legal principles of different sorts, is stronger than the case against it.” (Ibid., p. 44) The Model of Rules II (TRS) Dworkin on the nature of law… “Most legal philosophers have tried to answer this question by distinguishing the standards that properly figure in arguments on behalf of legal rights and duties.” (R. Dworkin, Taking Rights Seriously, Duckworth, 1977, p. 68) What if we cannot identify an exclusive list of standards? “My point was not that ‘the law’ contains a fixed number of standards, some of which are rules and other principles. Indeed, I want to oppose the idea that ‘the law’ is a fixed set of standards of any sort” (Ibid., p. 76) Legal disagreements (LE) “Lawsuits always raise, at least in principle, three different kinds of issues: issues of fact, issues of law, and the twinned issues of political morality and fidelity.” (R. Dworkin, Law’s Empire, p. 3) 1.What happened? 2.What is the pertinent law? 3.If the law denies compensation (for example), is that unjust? ØEmpirical disagreement Ø“Theoretical” disagreement about the law ØMoral disagreement The disagreement in Riggs vs Palmer Was Elmer’s legally entitled to the inheritance that his grandfather’s last will provided? How can judges disagree about what the law is, if the text of the statute is clear? General principles of law à principles of justice assumed elsewhere in the law Two reasons: (1) it is sensible to assume that legislators have a general and diffuse intention to respect traditional principles of justice (unless they indicate the contrary); and (2) given that the statute is part of a larger system, it should be interpreted in a way that makes the legal system as a whole coherent in principle Theoretical disagreement about law (LE) Law is a social phenomenon Legal practice (unlike many other social phenomena) is argumentative External vs. Internal perspective on the argumentative aspect of legal practice “This book takes up the internal, participants’ point of view; it tries to grasp the argumentative character of our legal practice by joining that practice and struggling with the issues of soundness and truth participants face. We will study formal legal argument from the judge’s viewpoint…” (R. Dworkin, Law’s Empire, p. 14) Constructive interpretation Pre-interpretive stage Interpretive stage Post-interpretive stage Dworkin’s example: the practice of courtesy àWhat is the point of a social practice? àWhat is the point of the law? Law as integrity Integrity à Consistency in principle The problem of “checkerboard” laws (LE, 178-184) Example: writing a chain novel ØDimension of fit ØDimension of justification Judge Hercules (“…an imaginary judge of superhuman intellectual power and patience who accepts law as integrity” – see R. Dworkin, Law’s Empire, p. 239) Dworkin’s ‘one-right-answer’ thesis Integrity as an interpretative ideal Hart’s Postscript 1. The Nature of Legal Theory ØA theory of what law is which is both general and descriptive…” (CL, 239) 2. The Nature of Legal Positivism ØHart’s soft/inclusive legal positivism 3. The nature of Rules 4. Principles and the Rule of Recognition 5. Law and Morality Ø“According to my theory, the existence and content of the law can be identified by reference to the social sources of law (e.g. legislation, judicial decisions, social customs) without reference to morality except where the law thus identified has itself incorporated moral criteria for the identification of the law” (CL, 269) 6. Judicial Discretion W6 – Legal Realism and Critical Legal Studies Legal Realism American Legal Realism Oliver Wendell Holmes Jr. (1841 – 1935) Roscoe Pound (1870 – 1964) Herman Oliphant (1884 – 1939) Jerome Frank (1889 – 1957) Karl Llewellyn (1893 – 1962) Felix Cohen (1907 – 1953) Scandinavian Legal Realism Alex Hagerstrom (1868 – 1939) A.V. Lundstedt (1882 – 1955) Karl Olivecrona (1897 – 1980) Alf Ross (1899 – 1979) Towards a Realistic Jurisprudence: A Criticism of the Dualism in Law (1946) A Textbook in International Law (1947) Constitution of the United Nations (1951) Why Democracy? (1952) "Tô-Tû", Harvard Law Review (1957) "Definition in Legal Language", Logique et Analyse (1958) On Law and Justice (1959) Review of The Concept of Law by H.L.A. Hart, The Yale Law Journal (1962) The United Nations: Peace and Progress (1966) Directives and Norms (1968) "On Self-Reference and a Puzzle in Constitutional Law", Mind (1969) On Guilt, Responsibility and Punishment (1975) Against “formalism” Law as a self-contained system of rules Judges decide cases via deductive/syllogistic reasoning, applying general rules to the facts of the case (formalism in adjudication) This approach was also called ‘mechanical jurisprudence’ Legal rules are like mathematical propositions – the law is a system of interconnected propositions which can be logically derived from each other, and which mechanically generate the result in all legal cases Judicial reasoning is independent from moral, political, economic, and social consideration à Is this what judges really do? Some main realist claims The traditional idea of law as a system of rules is a myth Law in books is different from law in action (paper rules vs. real rules) The law (as a system of rules) is indeterminate General legal concepts/legal rules/propositions cannot decide concrete cases Judges (should) decide cases by making policy decisions Legal concepts and standards are not neutral/objective Rejection of “metaphysical nonsense” Legal institutions can (and should) be studied with the help of empirical sciences à Sociological jurisprudence? Rule-scepticism Conceptual rule-scepticism The (real) law should not be identified with “paper rules” Very pragmatic understanding of the law We are under a legal duty not do X if and only if the courts say so We are under a legal duty to not do X because it is likely to result in an adverse court ruling Empirical rule-scepticism In deciding cases, judges respond to the underlying facts of the case, rather than to legal rules/reasons There are so many different legal rules that might be relevant to a particular case that there is always support for both sides in a legal argument There are conflicting ways of interpreting statutes and precedents Realism about the nature of law “The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10(8) Harvard Law Review, 460-461 Realism about the nature of adjudication The realists were concerned to make their theory about adjudication consistent with scientific inquiry ØEmpirical, observational and positivistic (in the scientific sense, not the legal sense of positivism) The realists sought to formulate “laws of judicial behaviour” based on actual observations of what the courts do in particular cases Non-legal factors determine the outcome of judicial decision-making ØIdiosyncratic adjudication (see, e.g., Frank) ØSociological adjudication (see, e.g., Llewellyn) ØPragmatic adjudication (see, e.g., Cohen) Possible counterarguments Legal realism misses the fact that some of the participants in the social practice we call law take an internal point of view Legal realism makes it impossible to say that a court has made a mistake about the law Why should one give priority to the concerns of the ‘bad man’? Instead, it might be helpful to consider the perspective of the puzzled/ignorant person, who wishes to arrange their affairs according to law If there are no legal rules, how do we know who a judge is? Judges do make law in cases where the law is indeterminate, but not all legal questions are hard cases Even in hard cases, there is a correct legal answer Is the realist normative account of adjudication anti-democratic? Hart on the generality of law Law, social control, and general rules/principles/standards The law predominantly refer to classes of person and to classes of acts, things, and circumstances Problem: to recognize particular acts, things, and circumstances as instances of the general classifications which the law makes “If it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 124 Communication of general standards Two principal devices: legislation and precedent ØCommunication by explicit general forms of language: “Every man and boy must take off his hat entering a church” ØCommunication by example: “Look – this is the right way to behave on such occasions” àIs the latter more indeterminate than the former? “Much of the jurisprudence of this century has consisted of the progressive realization (and sometimes the exaggeration) of the important fact that the distinction between the uncertainties of communication by authoritative example (precedent), and the certainties of communication by authoritative general language (legislation) is far less firm than this naïve contrast suggests.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 126 General rules and uncertainty “…there is a limit, inherent in the nature of language, to the guidance which general language can provide. There will indeed be plain cases constantly recurring in similar contexts to which general expressions are clearly applicable (‘If anything is a vehicle a motor-car is one’) but there will also be cases where it is not clear whether they apply or not. (‘Does “vehicle” used here include bicycles, airplanes, roller skates?’) H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 126 ØWithout clear, familiar cases general terms would be useless ØWhen there are reasons for and against the use of a general term, a choice between open alternatives must be made A fresh choice between open alternatives Natural languages are irreducibly open-textured “…uncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 128 We are human beings, not gods “It is a feature of the human predicament […] that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards…” (Ibid.) ØOur relative ignorance of fact ØOur relative ignorance of aim Hart on legal indeterminacy According to Hart, legal theory has either ignored or exaggerated the indeterminacies of legal rules “…all systems […] compromise between two social needs: the need for certain rules which can, over great areas of conduct, safely be applied by private individuals to themselves without fresh official guidance or weighing up of social issues, and the need to leave open, for later settlement by an informed, official choice, issues which can only be properly appreciated and settled when they arise in a concrete case.” H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 130 “Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory; they are great exaggerations, salutary where they correct each other, and the truth lies between them” (Ibid, 147) à The Nightmare and the Noble Dream Hart discusses American Jurisprudence – “American speculative thought about the general nature of law” For Hart, one of the salient features of American jurisprudence is its “…a concentration, almost to the point of obsession, on the judicial process, that is, with what courts do and should do, how judges reason and should reason in deciding particular cases.” (see Oliver Wendell Holmes, John Chipman Gray, Karl Llewellyn, Louis L. Jaffe) “Quite extraordinary” role played by the courts – especially by the US Supreme Court – in America Political questions vs. Judicial questions Wide powers of judicial review vs. “the impartial application of determinate existing rules of law in the settlement of disputes” The Nightmare Litigants in law cases consider themselves entitled to have from judges an application of the existing law to their disputes, not to have new law made for them Judges and legislators have different functions and different powers The Nightmare is that this image of the judge (as different from the legislator) is an illusion What Hart calls “the nightmare” has been presented by some legal scholars (see, in particular, American Legal Realism) not simply as a feature of certain types of difficult adjudication (e.g. constitutional adjudication), but an essential feature of law and adjudication à Are judges law-makers? The Noble Dream Judges apply to their cases existing law – they don’t make new law even when the text of particular constitutional provisions, statutes, or available precedents appears to offer no determinate guide According to Hart the Noble Dream in American jurisprudence (the notion that even when a particular provision of positive law is indeterminate there is none the less an existing law somewhere which judges can and should apply to dispose of the case) does not take the form of an invocation of a universal natural law For Hart, Dworkin is the noblest dreamer of them all Even in the hardest of hard cases, where each of two alternative interpretations of a statute or two conflicting rules seems to fit equally well the already clearly established law, the judge is never to make law Is Legal Realism a general theory of law? Brian Leiter is Karl N. Llewellyn Professor of Jurisprudence; Director of the Center for Law, Philosophy, and Human Values, at the University of Chicago In ‘Legal Realism and Legal Positivism Reconsidered’, Leiter challenges two widespread views: (1) Legal Realism and Legal Positivism are incompatible (2) Legal Realism is “a jurisprudential joke”, “a philosophical mess” According to Leiter, (1) and (2) above are connected because of H.L.A. Hart’s critical analysis of legal realism in Chapter VII of The Concept of Law à Leiter argues that Hart wrongly construed Legal Realism as a theory of law (in competition with Legal Positivism) Legal Realism as a descriptive theory of adjudication Judges react primarily to the underlying facts of the case Judicial decisions falls into discernible patterns (situation types) It is in light of these patterns that it is possible to make predictions Law is rationally indetermined If legal rules do not guide judges to particular solutions, then they cannot be used to explain judicial decisions What are the real (non-legal) reasons behind particular decisions? Empirical rule scepticism Legal Realism and conceptual rule scepticism According to Leiter, legal realism is a descriptive theory of adjudication On the other hand, Legal Positivism is a general theory of law (characterised by the Social Thesis and the Separability thesis) According to Leiter, Hart has good arguments against conceptual rule scepticism, but no arguments against empirical rule scepticism “The Realists […] cannot be conceptual rule skeptics, because their arguments for the indeterminacy of law presuppose a nonskeptical account of the criteria of legality, one that has the most obvious affinities with that developed by hard or exclusive Positivists.” (293) Legal Realism and Legal Positivism According to Leiter, the relationship between Legal Realism and Legal Positivism has three main features: Both Realists and Positivists think that the law is indeterminate (but different understanding of its source and scope) Realist arguments for indeterminacy seem to presuppose an essentially positivistic account of the criteria of legality Realists and Positivists do disagree over how often legal rules matter in judicial decision making à The last point captures an empirical disagreement: do legal rules (the rules in books) play a causal role in judicial reasoning? Critical Legal Studies The Critical Legal Studies movement (CLS) offers a radical critique of: Law, seen as a coherent and neutral system of rules; Legal institutions; and Liberal legal values (e.g., the rule of law, the idea of rights, and the legal process) à For CLS, law is a contradictory and illegitimate system which maintains oppressive social relations Intellectual influences: Legal Realism, Postmodernism, and Marxism CLS and Legal Realism For both legal realists and CLS theorists, the law is indeterminate (hence, the law does not guide/constrain judicial reasoning) Following legal realism, CLS theorists see legal reasoning as a myth In comparison with Legal Realism, the CLS movement is more interested in the politics of law and the ideological nature of law Law mirrors different political visions and ideologies In comparison with Legal Realism, the CLS movement has a more radical understanding of legal indeterminacy Postmodernism à words do not have stable meaning Postmodernism Jean-François Lyotard, La condition postmoderne: rapport sur le savoir (1979) [The Postmodern Condition: A Report on Knowledge] Post-structuralism (challenging the assumption that systems are self-sufficient structures and the possibility of the precise definitions on which systems of knowledge must be based) Jacques Derrida, Michel Foucault, Jean-François Lyotard, Jean Baudrillard, Richard Rorty… Anti-modernist and anti-foundationalist; rejection of epistemic certainty and the stability of meaning Use of concepts such as difference, repetition, the trace, the simulacrum, and hyperreality to destabilize other concepts such as presence, identity, historical progress, epistemic certainty, and the univocity of meaning Against the “Enlightenment project” Immanuel Kant, Beantwortung der Frage: Was ist Aufklärung? (1784) [Answering the Question: What Is Enlightenment?“] The Enlightenment project is the ideology of liberal humanism that has dominated Western societies in modern times Are there objective and/or universal standards of truth and justice? Postmodernism rejects “grand narratives” (or, “metanarratives”) ØHuman reasoning is always socially conditioned ØRadical scepticism and relativism ØThe notion that language constitutes reality ØDeconstruction (Derrida) CLS and Marx’s theory of history Marx’s historical materialism Forces of production à relations of production The superstructure helps the dominant class to maintain certain relations of production Capitalism needs a legal system that legitimises private ownership (of the means of production) Yet, law present itself as a neutral, impartial instrument… For the CLS movement law and legal institutions serve the “dominant” class and maintain the status quo CLS – some key claims Radical legal indeterminacy It is not possible to make coherent sense out of the legal materials The law is contradictory because it stems from political conflict Having said that, judicial decisions may be predicted because judges share a (political) commitment to the status quo Law as ideology The law promotes the interests of the powerful and legitimises injustice Scepticism about neutral legal concepts and doctrines W7 – Legal Reasoning and the nature of law Frederick Schauer (1946-2024) Frank Stanton Professor of the First Amendment, Harvard University (1990 – 2008) David and Mary Harrison Distinguished Professor of Law, University of Virginia (2008 – 2024) Free Speech: A Philosophical Enquiry (Cambridge, 1982) Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon/Oxford, 1991) ‘A Critical Guide to Vehicles in the Park’ (2008) 83(4) New York University Law Review 1109 Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard University Press, 2009) The Force of Law (Harvard University Press, 2015) The Proof: Uses of Evidence in Law, Politics, and Everything Else (Harvard University Press, 2022) Thinking like a lawyer? Do lawyers (and judges) think, reason, and argue differently from ordinary people? Are there any “techniques of reasoning” that are characteristic of legal decision-making? Scepticism about legal reasoning (e.g., American legal realism) Teaching the law: legal rules (and principles, doctrines, etc); the skills of lawyering; and legal reasoning ØAre there specific forms of reasoning associated with the legal systems we are familiar with? ØPerhaps, if we can identify “methods of reasoning that are found everywhere but that are particularly concentrated and dominant in legal argument and decision-making, then the claim that there is something called legal reasoning will turn out to be justified.” (p. 8) Legal reasoning and the Rule of Law Legal reasoning and the inherent generality of law Legal reasoning and the Rule of Law Ø“It is important to understand that the belief that there is a moderately distinct form of reasoning we call “legal reasoning” is in the final analysis an empirical claim.”(p. 11) Ø“In a society governed by the wise and the good, legal reasoning is likely simply to get in the way. And in such a society, were such a society ever to exist, the Rule of Law would be at least superfluous, and quite possible pernicious.” (ibid) Reasoning with rules What the rule says really matters Hart’s distinction between the core and the penumbra Purpose and literal meaning Legal (statutory) interpretation and the formality of law Ø“…law is more than simply doing the right thing in particular cases.” (p. 35) Ø“Understanding when why, and how rules – as rules – are important in law will take us a long way toward understanding law itself.” (ibid) Schauer on hard cases and the so-called “selection effect” Hart on legal reasoning Example: a rule prohibiting the use of vehicles in the park Does the present, uncertain case resemble the plain/clear/familiar case sufficiently in relevant respects? We no longer reason by drawing of a syllogistic conclusion ØAll men are mortal (major premise) ØSocrates is a man (minor premise) ØTherefore, Socrates is mortal (syllogistic conclusion) “The discretion thus left […] by language may be very wide; so that if [the judge] applies the rule, the conclusion, even though it may not be arbitrary or irrational, is in effect a choice.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 127) Indeterminacies in the use of precedents According to Hart, three pairs of contrasting facts: 1.There is no single method of determining the rule for which a given authoritative precedent is an authority – notwithstanding this, in the vast majority of decided cases there is very little doubt 2.There is no authoritative or uniquely correct formulation of any rule to be extracted from cases – on the other hand, there is often very general agreement, when the bearing of a precedent on a later case is in issue, that a given formulation is adequate 3.Whatever authoritative status a rule extracted from precedent may have, it is compatible with the exercise by courts of “creative” activity (by narrowing or widening that rule) – at the same time, a system of precedent is able to produce a vast number of rules that are as determined as any statutory rule Five themes The nature of legal reasoning The importance of interpretation Rules and exceptions Judicial discretion Judicial reasoning and the nature of law Raz on legal reasoning I have rejected the strong thesis of the autonomy of legal reasoning. Legal reasoning is an instance of moral reasoning. Legal doctrines are justified only if they are morally justified, and they should be followed only if it is morally right to follow them. The legal systems of different countries, with their doctrines of balancing the powers of the different organs of government, make varying claims, and have differing principles, as to when the courts are morally justified or even required to deviate from legal doctrine when it conflicts with morality and when the courts should leave the reform of doctrine to other bodies of government. […] In reasoning according to law the courts ought to follow those principles, which are moral principles, though they may be mistaken moral principles. Thus legal reasoning is an instance of moral reasoning, though sometimes it is morally incorrect, or based on morally deficient legal principles. Finnis on legal reasoning Legal reasoning, indeed, is technical reasoning, at least in large part not moral reasoning. Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretence that natural reason can determine the one right answer to those countless questions which arise for the judge who finds the sources unclear. Schauer on the no-vehicles-in-the-park rule (in the context of the Hart-Fuller debate) This part of the Hart-Fuller debate is “a debate within a debate”, which offers insights about the nature of legal rules, legal interpretation, and legal language Fuller’s example: “It shall be a misdemeanor, punishable by a fine of five dollars, to sleep in any railway station.” Ø Is it really possible to interpret a word in a statute without knowing the aim of the statute? Are Hart and Fuller disagreeing about the concept of law, or about what judges do/should do when they interpret and apply the law? Rules and exceptions ‘Either rules are what they would be in the formalist’s heaven and they bind as fetters bind; or there are no rules, only predictable decisions or patterns of behaviour.’ [This is a quotation from Llewellyn’s The Bramble Bush) Yet surely this is a false dilemma. We promise to visit a friend the next day. When the day comes it turns out that keeping the promise would involve neglecting someone dangerously ill. The fact that this is accepted as an adequate reason for not keeping the promise surely does not mean that there is no rule requiring promises to be kept, only a certain regularity in keeping them. It does not follow from the fact that such rules have exceptions incapable of exhaustive statement, that in every situation we are left to our discretion and are never bound to keep a promise. A rule that ends with the word ‘unless…’ is still a rule. H.L.A. Hart, The Concept of Law (OUP, 3rd ed, 2012) 139 Judicial discretion – Hart’s Postscript “The sharpest direct conflict between the legal theory of this book and Dworkin’s theory arises from my contention that in any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 272) àFor Dworkin, this picture of the law is a misleading account of both law and judicial reasoning àDworkin’s interpretive legal theory includes explicit settled law and implicit legal principles àHence, the judge never steps outside the law, making new law Hart on judicial law-making powers The are cases left partly unregulated by the law (i.e. hard cases) In these cases, judges decide by exercising law-making powers However, for Hart, judicial law-making powers are different from the law-making powers enjoyed by the legislator ØA judge’s power is subject to many constraints that narrow their choice (e.g. judges cannot introduce large scale reforms or new codes) ØJudges exercise interstitial powers ØJudicial power is not arbitrary power – judges must always justify their decisions in light of some general reasons and must act as a conscientious legislator Hart on Dworkin’s three main criticisms 1.Hart’s view on judicial discretion is a false description of the judicial process – this is not what judges do in hard cases 2.Judicial discretion is undemocratic (judges are not elected) 3.Judicial law-making is unjust, because is a form of retrospective legislation ØIn hard cases, “judges do not just push away their law books”; even Dworkin’s theory of adjudication incorporates choices ØIt’s a necessary, small price to pay (provided that judicial power is limited); delegation of limited legislative powers to the executive is a familiar feature of modern democracies ØIn hard cases, by definition, there is no state of clear established law to justify expectations Uncertainty in the rule of recognition “What inference is to be drawn as to the place of courts within a legal system from the fact that the ultimate rule of a legal system may […] be in doubt and that courts may resolve the doubt? Does it require some qualification of the thesis that the foundation of a legal system is an accepted rule of recognition specifying the criteria of legal validity?” (H.L.A. Hart, The Concept of Law, OUP, 1994 , p. 148) àFor Hart, there is an area of open texture in the system’s most fundamental rule (i.e. the rule of recognition): “Here at any moment a question may arise to which there is no answer – only answers.” (Ibid., p. 151) àThere might be situations in which the courts have to determine the ultimate rule by which valid law is identified What have we studied so far? When revising the content covered in the last six weeks, focus on problems and answers (zoom in/out) The research essay provides a great opportunity to do some research in the area and gain a deeper understanding of the nature of law Go back to week 1 and read again ‘Why study jurisprudence?’ by John Gardner Join the conversation Your conceptual toolbox ‘The case of the speluncean explorers’ (1949) Supreme Court of Newgarth Early May 4299 – The four defendants, in the company of Roger Whetmore (all members of the Speluncean Society) remain trapped in a limestone cave due to a landslide They are rescued after 32 days. It is then discovered that on day 23 Roger Whetmore was killed and eaten by his companions The defendants are found guilty of murdering Roger Whetmore “The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed.” (L. Fuller, ‘The Case of the Speluncean Explorers’, Harvard

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