PhiLaw - Midterms PDF

INTRODUCTION Cass Sunstein - On Legal Theory And Legal Practice Emmanuel Q. Fernando - The Relevance of the Philosophy to Law-1 Perfecto V. Fernandez - Philosophy and Law LEGAL POSITIVISM Legal positivism seeks to define law by its existence as a s...

INTRODUCTION Cass Sunstein - On Legal Theory And Legal Practice Emmanuel Q. Fernando - The Relevance of the Philosophy to Law-1 Perfecto V. Fernandez - Philosophy and Law LEGAL POSITIVISM Legal positivism seeks to define law by its existence as a social fact, separate from any moral or ethical considerations. This approach, often contrasted with natural law theory, emphasizes the conventional nature of law, grounding it in observable practices and rules rather than abstract principles of justice. John Austin Command Theory Of Law Austin's Legal Positivism: Separating Law and Morality ○ 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. Advocated for separating "law as it is" from "law as it ought to be". ○ This principle distinguishes between the existence of a law and its moral worth. ○ Austin believed that confusing these two concepts led to misunderstandings about the nature of law. ○ Law's existence is one question, while its merit or demerit is a separate inquiry. ○ Even if a law is disliked or considered morally wrong, it remains law if it exists within a legal system.  Austin did not believe that laws are invalid or not truly laws simply because they violate moral standards, while moral considerations might influence the creation and enforcement of laws, they are not what make a law valid. This separation allows for a clearer understanding of law as a tool for social control. The Province of Jurisprudence Determined ○ In this work, Austin sets out to define the scope of legal study and differentiate positive law from other concepts often confused with it. Positive law - laws "set by political superiors to political inferiors." The Command Theory ○ Defines law as a species of command ○ Every law is a command issued by a sovereign, who is habitually obeyed, and backed by a sanction (threat of punishment) for non-compliance. Every law or rule (taken with the largest signification which can be given to the term properly) is a command. Or, rather, laws or rules, properly so called, are a species of commands. ○ Austin believed that this structure formed the basis of all legal systems. ○ However, critics argue that it fails to account for laws that do not neatly fit the command structure, such as those that empower individuals to create legal relations (like contracts) or define the powers of legal institutions. ○ While Austin acknowledges that judges sometimes "legislate" by creating new rules, he seems to consider this a less central aspect of law compared to the sovereign's command. H.L.A. Hart Hart critiques their "command theory" of law for its simplicity and inability to capture the full complexity of legal systems. In "Positivism and the Separation of Law and Morals," Hart challenges Austin's command theory, which defines law solely as the command of a sovereign backed by threats of punishment. ○ Hart argues that this model, while useful for understanding parts of the legal system like criminal law, fails to explain crucial aspects like power-conferring rules, such as those governing contracts or the formation of wills.  ○ By reducing all laws to commands distorts our understanding of how legal systems actually function. Hart proposes that law is better understood as a system of rules. ○ Two types of rules: Primary rules - directly guide behavior Secondary rules - address the creation, modification, and adjudication of primary rules Rule of Recognition ○ Establishes the criteria for identifying valid laws within a given legal system. ○ This rule emerges from the social practices of legal officials who use it to identify and apply the law [not explicitly stated in sources Social Acceptance - For a system of rules to be considered law, it must be generally accepted by the officials responsible for applying and enforcing it. ○ This acceptance must come from an "internal point of view," meaning that officials must see the rules as binding and use them as reasons for their actions, not simply as predictions of what others might do. Hart acknowledges that morality can and do influence the content of law, but there's no necessary connection between law and morality. By maintaining a clear separation between law as it is and law as it ought to be is crucial for understanding the nature of legal obligation and for critically evaluating the law's moral content. Addressing the Critique from the "Hell" of Nazi Germany ○ Hart also confronts the claim that its emphasis on separating law and morality contributed to the horrors of Nazi Germany. ○ While sympathetic to the experiences of German legal scholars like Gustav Radbruch, who renounced positivism after witnessing the Nazi regime, Hart argues that blaming legal positivism for the atrocities is misplaced. ○ The problem lay not in separating law and morality but in elevating the law to an almost sacred status, which stifled moral criticism and allowed the Nazi regime to use law as a tool of oppression. ○ For Hart, the real lesson from Nazi Germany is not to abandon the separation of law and morality, but to recognize that even a valid law may be deeply unjust and should be disobeyed on moral grounds.  ○ He argues that a robust legal system should encourage moral criticism of law, even while acknowledging its validity, to prevent tyranny and promote justice. The dangers of conflating law and morality: Surely the truly liberal answer to any sinister use of the slogan ‘law is law’ or of the distinction between law and morals is, ‘Very well, but that does not conclude the question. Law is not morality; do not let it supplant morality. Hans Kelsen Pure Theory of Law: Kelsen aimed to establish a "pure" theory of law, free from extraneous influences like sociology, politics, or morality. This purity focuses on the formal analysis of legal norms, their validity, and their hierarchical structure within a legal system. Unadulterated Law: Restrict the analysis to “norms” of positive law: ○ A law is not invalidated simply because it might be deemed morally wrong. This separation allows for a more objective analysis of law, focusing on its structure and function within the legal system. ○ Those oughts which provide that if certain conduct (X) is performed, then a sanction (Y) should be applied by an official to the offender This will rule out all that cannot be objectively known Law has only one function: THE MONOPOLIZATION OF FORCE ○ Law achieves this by establishing norms that stipulate sanctions for specific behaviors. ○ By defining and controlling the use of coercion, law aims to maintain order and regulate social interactions. Kelsen’s Starting Points: ○ Normative Claims can be grounded on or justified by other normative claims ○ Such lines of justification must necessarily come to an end at some point LAW AS A SPECIFIC SOCIAL TECHNIQUE  What follows the fact that some people treat legal rules as valid norms? ○ There is a foundational argument implied by legal statements. Hierarchy of Norms: The concept of a hierarchical structure of norms.Each norm derives its validity from a higher norm, tracing back to the ultimate, foundational "basic norm." This basic norm is not itself posited (created) within the legal system, but is presupposed as the condition for understanding the system's validity. The highest is the most abstract, and the lower you go in the pyramid it becomes more specific. ○ The Grundnorm or Basic Norm Cannot depend on any other norm; it is presupposed The assumption is needed in order to understand the legal order By formulating the Grundorm, we do not introduce into the science of law any new method. We merely make explicit what all jurists, mostly unconsciously, assume when they consider positive law as a svstem of valid norms and not onlv as complex of facts, and at the same time repudiate any natural law from which positive law would receive its validity. That the Grundnorm really exists in the juristic consciousness is a result of a simple analysis of actual juristic statements. The Grundnorm is the answer to the question: how - and that means under what condition - are these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible? Features: Presupposed ○ it is not a product of free invention ○ refers to particular facts in natural reality It has no content ○ Purely formal category ○ One ought to behave as the constitution prescribes Analysis and justification operate in both static and dynamic levels. Static - legal norms are justified by more general or basic norms Dynamic - more basic norms authorize the later creation of more specific norms by legal officials. A hypothetical norm that sits at the apex of a legal system and provides the ultimate justification for the validity of all other norms within that system.  Is not a positive law enacted by a legislature or derived from morality, but a presupposition that must be assumed for any legal system to make sense. It’s similar to a logical axiom in mathematics that is necessary for the system to work but cannot be proven within the system itself. Legal validity flows in a hierarchical chain from the Grundnorm down to individual legal norms, with each norm deriving its authority from a higher norm. ○ Authorizing Norm - Such as a constitutional provision, bestows the power to create lower-level norms upon specific individuals or institutions. For example, a constitution might grant the legislature the authority to enact statutes. ○ Authorized Norm - like statutes or judicial decisions, derive their validity from the authorizing norms above them in the hierarchy. They are created in accordance with the procedures and limitations established by the higher-level norms. EXAMPLE OF HIERARCHY OF NORM 1. PRIMARY QUESTION a. Why is law obeyed? 2. ANSWER a. Legal norms are objectively valid b. Ultimate validity is based from the Grundnorm 3. FUNCTIONS a. It makes it possible to regard a coercive order as objectively b. Provides an explanation for the coherence and unity of a legal order Reduction and Legal Theory ○ All legal norms could and should be understood in terms of an authorization to an official to impose sanctions: If A (citizen) does X (wrong action), then B (official) is authorized to impose Y (a sanction) ○ Kelsen's hierarchical structure functions through a process of "reduction." ○ The validity of any particular legal norm can be traced back through a chain of authorization, ultimately reaching the Grundnorm. ○ This process of reduction provides a framework for understanding how individual legal acts, from statutes to judicial decisions, gain their legitimacy and binding force within the legal system.  Reduction as a natural tendency v. Reduction as distortion ○ Kelsen's hierarchical structure functions through a process of "reduction." The validity of any particular legal norm can be traced back through a chain of authorization, ultimately reaching the Grundnorm. This process of reduction provides a framework for understanding how individual legal acts, from statutes to judicial decisions, gain their legitimacy and binding force within the legal system. ○ This framework emphasizes the interconnected nature of legal norms, highlighting that their validity is not isolated but derived from their position within the system. It reinforces the idea that law is a system of rules, where each rule derives its meaning and force from its relation to other rules, ultimately culminating in the foundational Grundnorm. ○ It's important to note that the sources provided offer limited information about "Reduction and Legal Theory" beyond the concept of hierarchical validation. Further research might be required to explore this aspect more comprehensively. ○ Validity, efficacy, and revolution ○ The efficacy of the whole legal order is a condition of the validity of every norm within it. ○ Implicit in the very existence of a legal system is the fact that its laws are generally obeyed. ○ "Every by and large effective coercive order can be interpreted as an objectively valid normative order" Basic Norm: This forms the foundation of a legal system in Kelsen's framework. It is not a specific rule or command but a presupposition necessary for understanding the system's validity. It's the "ought" that gives the entire system its binding force, even though it's not grounded in any higher authority. The content of the basic norm is not predetermined but is relative to the particular legal order in question. Law as a System of Norms ○ Law is a system of norms, which he distinguishes from facts. ○ A norm is an “ought” statement – it prescribes what should be done, not what is done. ○ Legal norms derive their validity from their place within the hierarchical structure of the legal system, ultimately grounded in the Grundnorm. Separating Law and Morality  ○ He argued that conflating the two undermines the objectivity of legal analysis and risks collapsing law into subjective moral judgments. ○ A law is valid regardless of its moral content as long as it is created and enforced according to the procedures established by the legal system, which ultimately traces back to the Grundnorm. Kelsen’s Differences with Hart: ○ Source of legal validity: Kelsen - Grundnorm, a presupposed norm Hart - Social practice of legal officials (the rule of recognition) ○ Role of social facts: Kelsen - prioritizes the normative structure of law and minimizes the role of social facts Hart - acknowledges the importance of social acceptance and the internal point of view in understanding legal systems H.L.A. Hart Hans Kelsen Notion of the combination of certain types of denied that statements of what one "normative" social facts ought to do Methodology actual practice - logical analysis of law; "descriptive sociology" "juristic consciousness" Function Identify rules Validate the Constitution and all norms of the system Criteria of validity Several Only one Grundnorm Demonstrability of Cannot be demonstrated Presupposed in terms of efficacy Validity Joseph Raz Identity of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. LAW IS AUTONOMOUS - we can identifv its content without recourse to morality. LEGAL REASONING IS NOT AUTONOMOUS - it is an inevitable, and desirable, feature of judicial reasoning. The existence and content of law may be determined by a factual enquiry about conventions, institutions, and the intentions of participants in the legal system.  THE ANSWER TO THE QUESTION "WHAT IS LAW" IS ALWAYS A FACT. "Exclusive" because the reason we regard the law as authoritative is the fact that it is able to guide behavior in a way that morality cannot do. Law asserts its primacy over all other codes of conduct. Law is the ultimate source of authority. A legal system is quintessentially one of authoritative rules. It is this claim of authority that is the trademark of a legal system. Rejection of moral authority of law Natural Law Argument Raz's Response To distinguish between law and other forms While law has certain functions, the analysis of social control is to neglect the functions can of law; and because functions cannot be be value-neutral described in a value-free manner. any functional account of law must involve moral judgments The content of law cannot be determined While moral considerations do enter into exclusively by social facts adjudication, this is unavoidable in any source-based system One of the characteristics of law is that it While conformity to the rule of law reduces conforms to the ideal of the rule of law, thus abuses, it does not confer an independent law is moral. moral merit for law. The rule of law is a negative virtue Three positivist principal claims The Social Thesis ○ Law may be identified as a social fact, without reference to moral considerations The Moral Thesis ○ The moral merit of law is neither absolute nor inherent, but contingent upon the "content of the law and the circumstances of the society to which it applies" The Semantic Thesis ○ Normative terms such as "right" and "duty" are not used in moral and legal contexts in the same way ○ Sources thesis ○  stronger version of the "social thesis" A ○ It accounts for the fundamental function of law, namely, the setting of standards by which we are bound, in such a way we cannot excuse our noncompliance by challenging the rationale for the standard. Committed and Detached Statements ○ Laws do not require things to be done or not done; they impose duties. ○ Duty - there is a mandatory rule that excludes all first-order reasoning about the subject. ○ IF I am under a legal duty to do X, but deny that I am under a moral duty to do it - DETACHED STATEMENT IF I unequivocally accept the legal rule in question - COMMITTED STATEMENT Committed and Detached Statements ○ Authoritative legal directives provide both first-order reasons for me to do X or refrain from doing X, and second-order reasons which exclude by "dependent reasons" Dependent reasons - right reasons, including moral reasons, that would otherwise affect my decision. ○ Authoritative rule turns into my reason for doing or not doing X. I accept authority because I know by relying on its rules, I will benefit, which I will not do if I rely on my individual moral judgment. Raz's Exclusive Positivism ○ It is in the nature of law to claim legitimate authority. ○ Law as "exclusionary reasons" - reasons to exclude a consideration from being a ground for a decision. ○ The relationship between practical reasoning and authority: ○ authorities and authoritative reasoning affect our moral deliberations where there is authority, our decision is based at least in part on what the authority states that we do ○ we incorporate the authority's weighing of the relevant factors rather than simply weighing all relevant considerations for ourselves. LAW IS JUSTIFIED PRACTICAL AUTHORITY Are moral tests necessary for legal validity? ○ Inclusive positivism soft / incorporationist a particular legal system may make moral criteria necessary or sufficient for validity in that system morality is necessary, but not sufficient, for legal validity the use of moral criteria is contingent and derived from choices or actions of legal officials, but not as part of the nature of law ○ Exclusive positivism hard the existence and content of every law is fully determined by social sources Raz's Source's thesis - "what is law and what is not is a matter of social fact." Morality does not play a part in knowing "what the law is" yet it has a part on how judges should decide cases "according to law. He argues that reducing legal validity to any social fact is too simplistic and ultimately untenable  We can determine what the law is based on social facts while maintaining a separate judgment about whether those laws are morally good or bad. Two key characteristics of legal systems that are essential for understanding the nature of legal validity: ○ Efficacy A legal system, to be considered valid, must be generally effective. This means that its laws are generally obeyed and enforced. While this doesn't mean every law must be perfectly obeyed at all times, a system completely lacking efficacy cannot be considered a valid legal system. ○ Institutionality Law is inherently institutional, meaning it operates through specific institutions and procedures. There is an importance in identifying the specific institutional mechanisms that create, modify, and enforce legal norms within a given society. Raz proposes a two-pronged "identification test" for determining the validity of a rule as law: ○ Is the rule a social rule? Whether the rule is grounded in the customs, habits, and common views of the community. ○ Does the rule meet the social conditions set for identifying valid law? Looking at the specific sources of law within a given legal system, such as legislation, judicial precedent, or custom, as determined by the "rule of recognition" (a concept that overlaps with H.L.A. Hart's theory) Raz acknowledges that moral arguments can play a role in legal reasoning, but he distinguishes between two distinct ways in which this occurs: ○ Moral arguments sometimes determine the content of specific laws. ○ Moral arguments can be relevant in interpreting and applying the law.  Even when a law isn't directly based on moral principles, judges and lawyers might use moral reasoning to resolve ambiguities, fill gaps, or determine the scope of a legal rule. However, even when moral arguments influence legal decision-making, the ultimate test of a rule's legal validity remains grounded in its source, not its moral content. ○ A court might reach a morally sound decision, but that decision is only legally binding if it's ultimately grounded in the recognized sources of law within that system. Jeremy Bentham Argued that law should be understood as a system of rules created by human beings for the purpose of maximizing utility or happiness for the greatest number of people. This meant analyzing existing laws based on their practical effects rather than judging them by external moral standards. Utility Principle: This principle argues that actions are right in proportion to the extent that they promote happiness and wrong as they tend to produce the reverse of happiness. Bentham saw this principle as the foundation for both morality and a rational legal system. Censuring vs. Disregarding Law: Bentham distinguishes between censoring a law as morally wrong and disregarding it on the grounds of that moral judgment. This distinction highlights the positivist view that even an unjust law, as long as it is properly enacted and enforced, remains a law. NATURAL LAW THEORY I. Traditional Natural Law Theory The best description of natural law is that it provides a name for the point of intersection between law and morals.- Alessandro Passerin d'Entrèves, Natural Law Its principal claim is that what naturally is, ought to be. Argues for the existence of a "higher law" elaboration of its content, analysis of what should follow from existence of this "higher law" The fundamental of ethics lay in absolute values that things could emulate. Only laws that pursue the ideals of justice can be considered right. Justice is a universal value that transcends local customs and traditions.  Values are discovered by the application of reason. The sources of ideals are found in human nature rather than those external transcendent values. The natural world contains elements of stability and change; telos - object or purpose to which things inexorably evolve. Justice: general - wholly virtuous in all matters relating to others; particular - treating others fairly. II. Cicero’s Natural Law Theory Natural law is unchanging over time and does not differ in different societies Every person has access to standard of this higher law by use of reason Just laws only deserve to be called law In the very definition of the term “law” there inheres the idea and principle of choosing what is just and true Cicero, De Re Publica, Bk III ○ True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. III. Classical to Early Church Writings Classical Early Church Source of higher standards implied or inherent in the divine being who actively nature of things intervenes in human affairs while higher standards may be inherent in human nature and in the nature of things, there is also a need to face the question of the connection of these standards to divine command IV. Aquinas' Treatise on, Law  Law as Reason Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated. (Thomas Aquinas, Summa Theologica, First part of the Second Part, Q. 93) ○ ORDINANCE OF REASON: The rule and measure of human acts is the reason, which is the first principle of human acts, it belongs to the reason to direct to the end, which is the first principle in all matters principle in all matters of action ○ FOR THE COMMON GOOD: Aas reason is a principle of human acts, so in reason itselt there is something which is the principle in respect of all the rest. The law must regard principally the relationship to happiness…since every part is, ordained to the whole, as ○ imperfect to perfect; and since one man is a part of the perfect community, the law must [] regard properly the relationship to universal happiness. ○ MADE BY HIM WHO HAS CARE OF THE COMMUNITY: Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs. ○ PROMULGATED: Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Aquinas on the Different Kinds of Laws ○ Lex Aeterna The whole community of the universe is governed by Divine Reason Wherefore the very Idea of the government of things in God the Ruler of the universe, has the nature of a law. And since the Divine Reason's conception of things is not subject to time but is eternal,..therefore it is that this kind of law must be called eternal. ○ Lex Naturalis The rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: This participation of the eternal law in the rational creature is called the natural law. ○ Lex divina  And these four causes are touched upon in Ps. 118:8, where it is said: The Law Of The Lord Is Unspotted: Allowing no foulness of sin; Converting Souls: Because it directs not only exterior, but also interior acts: The Testimony Of The Lord Is Faithful: Because of the certainty of what is true and right; Giving Wisdom To Little Ones: By directing man to an end supernatural and Divine. ○ Lex humana Just as, in the speculative reason, from naturally known indemonstrable principles, we draw the conclusions of the various sciences, the knowledge of which is not imparted to us by nature, but acquired by the efforts of reason, so too it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particular determination of certain matters Lex iniusta non est lex ○ "An unjust law is not law." ○ Misleading? ○ An immoral law is not law at all vs An uniust law is not law "in the fullest sense" V. Medieval and Renaissance Theorists Francisco Suárez (1548-1617) ○ Breaks from Aquinas in his concept of NL Emphasis on "will" when analyzing natural law, instead of "reason" "nature" means knowledge of the good derived from the knowledge of human nature ○ Influenced Hugo Grotius whose works set the foundation for International Law Hugo Grotius (1583 - 1645) ○ Etiamsi daremus non esse Deum ○ Served as an important basis in developing public international law ○ Certain things are "intrinsically" wrong, whether they are decreed by God or not. VI. Natural Law and History When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.  We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; Lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen the Supreme Being, the following rights of man and of the citizen Natural Law in Political Philosophy Social Contract Theory of a State Theory of why a State exists (i.e. Divine right theory) Only on one’s consent can someone be subjected to the political will of another What is the state of nature of man before the creation of a state? ○ Thomas Hobbes (Englishman) Book: Leviathan State of Nature: Man’s life in the state of nature is solitary, poor, nasty, brutish and short All life are equal and the equality generated disagreements on the three following reasons: ○ Competition ○ Distrust ○ Glory We are in a perpetual state of war against all No morality in the state of nature We live in constant fear People in their state of self-interest, need to find peace We mutually divest ourselves of our certain rights so as to achieve peace and to give our natural right to a common authority who we obey or agree ourselves with conquered for peace ○ John Locke (Englishman) State of Nature: Bliss or peaceful, however, the right to property is not protected By mixing labor with material objects, the laborer acquires the right to the things he has created thus the state exists to preserve the natural rights of citizens Life, liberty and estates (property) Man forfeited some of our freedoms for the state to be created in order for the state to protect our property  ○ Jean Jacques Rousseau (Swiss) Man is born free yet, everywhere, he is in chains His personal interest must override the collective interest,but as part of a community the individual subject disregards his egotism and create general will , which is popular sovereignty, which determines what is good for society as a whole Decline of Natural Law Theory ○ Rise of Empiricism and the Scientific Method ○ Non-cognitivism in Ethics In moral reasoning, there can be no rational solutions; we cannot objectively know what is right or wrong Facts about the world or human nature cannot be used to determine what ought to be done or not done. Revival of Natural Law Theory ○ Post-war recognition of human rights ○ Impact of the Nuremberg War Trials ○ Neo-Kantianism of Rudolf Stammer and Giorgio del Vecchio ○ Neo-Thomism and John Finnis ○ Developments in constitutional safeguards for human or civil rights ○ Concept of Natural Law of Lon Fuller and "Minimum Content of Natural Law” by H.L.A. Hart VII. John Finnis Asks the questions: ○ How should one live? ○ How can we discover the answer to ethical questions? The principles of natural law, thus understood, are traced out not only in moral philosophy or ethics and 'individual conduct, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. For those principles justify the exercise of authority in community. The principles of natural law explain the obligatory force (in the fullest sense of obligation) of positive laws, even when those laws cannot be deduced from those principles. And attention to the principles, in the context of these explanations of law and legal obligation, justifies regarding certain positive laws as radically defective, precisely as laws, for want of conformity to those principles. What constitutes a worthwhile, valuable, desirable life? ○ There are a number of valuable basic goods: Life, Health, Knowledge, Play, Aesthetic Experience, Friendship, Practical Reasonableness, And Religion. Each of these has intrinsic worth, equally fundamental, and is valued for its own sake. Basic Goods > Basic Requirements of Practical Reasonableness > Moral Choices 9 Basic requirements of Practical Reasonableness: ○ Coherent plan of life ○ No arbitrary preference among values ○ No arbitrary preference among persons ○ Detachment of Commitment ○ Limited relevance of consequences: efficiency with reason  ○ Respect for every basic value in every act ○ Following one’s conscience ○ The requirements of the common good ○ The good of practicable reasonableness structures in the pursuit of goods Moral principles give ethical structure to the pursuit of these basic goods. Law facilitates the common good by providing authoritative rules to solve coordination problems that arise in connection with the pursuit of these goods. Finnis Legal Positivism descriptive theory requires the theorist evaluate no moral evaluation of the legal system the moral merits of the legal system described under certain conditions, law does create moral law purports to create moral reasons for actions reasons for action morally neutral theory of law is not possible neutral theory of law is possible focus on how, whether, and when positive law positivism avoids answering this question adds to our set of moral obligations law primarily as a kind of reason for action, law positivism avoids answering this question. Law is cannot be understood except in the context of a type of social institution. what would make for good reasons for actions Traditional Natural Law Modern Natural Law ○ Cicero ○ Lon Fuller ○ Aquinas ○ A moral evaluation is required in ○ Suarez describing law in general, or in ○ Finnis determining legal validity of individual ○ Status of morality in relation to how laws participants relate to law, and all other aspects of living the good life. VIII. Inclusive Legal Positivism and Morality?  H.L.A. Hart's minimum content of natural law ○ Context: general discussion of the ways which law and morality can be said to overlap. MCNL- law and morality often do overlap, without there being any necessary connection between the two ○ There are certain contingent facts of the human situation in the present time: that we are all mortal and vulnerable, that resources are limited, and that we are all dependent to some extent on other people. ○ Consequences may follow, which include that any legal or moral system that did not offer certain minimal protections to at least a significant minority of the population would not - could not - survive for very long. IX. NL v. PL VIL. Lon Fuller Law is not unidirectional: law presupposes cooperation and reciprocal obligations between officials and citizens. "Ideal of law” - social practice and the social institution of law is, by its nature, striving towards such ideal. Law as the "enterprise of subjecting human conduct to the governance of rules. Law: ○ Particular means to an end ○ Those in authority are not entirely free when they create law. ○ "Internal Morality of Law" / "Principle of Legality" Failure to Make Law ○ Failure to achieve rules at all. ○ Failure to publicize the rules he is expected to observe. ○ Abuse of retroactive legislation ○ Failure to make the rules understandable ○ Enactment of contradictory rules ○ Rules that require conduct beyond the powers of the affected party ○ Introducing frequent changes in the rules ○ Failure of congruence between rules as announced and actual administration Internal Morality of Law ○ For a system of rules to function as genuine law, it must adhere to what he terms the "internal morality of law," consisting of eight key principles, also referred to as Principles Of Legality: Generality Promulgation (Publicity) Prospectivity Clarity Non-Contradiction Possibility of Compliance Constancy (Stability) Congruence Between Rules and Official Action X. Hart v. Fuller Debate Nazi Informant Case ○ Under the Third Reich the wife of a German in 1944, wishing to get rid of her husband, denounced him to the German Gestapo for insulting remarks he had  made about Hitler's conduct of the war. He was tried and sentenced to death, though his sentence was converted to service as a soldier on the Russian front. ○ In 1949, the wife was prosecuted for procuring her husband's loss of liberty. Her defense was that he had committed an offense under a Nazi statute of 1934. The court nevertheless convicted her on the ground that the statute under which the husband had been punished offended the ○ "sound conscience and sense of iustice of all decent ○ human beings" H.L.A. Hart - Positivism and the Separation of Law and Morals the decision of the court was wrong, as the Nazi law of 1934 was a valid law since it fulfilled the requirements of the "rule of recognition" Lon Fuller - Positivism and Fidelity to Law - A Reply to Professor Hart since the Nazi "law" deviated so far from morality, it failed to qualify as law it is possible to deduce normative conclusions from the nature of the legal system The Grudge Informer Case XI. Ronald Dworkin law contains not only rules but also principles Interpretative Theory of Law ○ Legal systems also contain principles ○ Legal principles are moral propositions that are stated in or implied in past official acts. ○ Principles can apply to a case without being dispositive THREE POSITIVIST THESES DWORKIN 1. law is a set of rules identified as law by 1. Judges decide based on principles in the some master rule based on pedigree absence of rules. (the rule of recognition) 2. When no rule exists, judges have the strong 1. Hard cases are still decided based on discretion to decide. rights and obligations set by principles, even if no rule applies to the case 3. Legal rights and legal obligations are entirely 1. The positivist cannot simply add the product of legal rules. principles to his analvsis of law, because principles often fall outside the scope of  the master rule of recognition. Hart v. Dworkin ○ Dworkin Lawyers disagree with whether facts surrounding the creation of rules also sufficient to vest that rule with legal authority Semantic sting The internal point of view, rule of recognition may be uncertain at particular points ○ Hart There may be moral reasons for conforming to law. and a moral justification for coercion. The rule of recognition "may incorporate as criteria of legal validity conformity with moral principles or substantive values" Attack on Conventionalism ○ Claims of conventionalism: Law is a function of social convention which then designates as legal convention Law is incomplete: there are gaps in the law that judges fill by reference to their own predilections. ○ For Dworkin, these theories fail to provide either a convincing account of the process of law-making or a sufficient defense of individual rights The Four Cases: Palmer, Snail Darter, McLoughlin, Brown. Principles and Policies ○ Riggs v. Palmer The application of rules was subject to principles. Law includes principles ○ Rules If a rule applies, and it is a valid rule, a case must be decided based on what the rule says The application of rules was subject to principles. Law includes principles ○ Principle Provides for a reason for deciding the case in a particular way, but is is not a conclusive reason: it will be weighed up with other principles in the system A standard to be observed because it is a requirement of justice or fairness or some other dimension of morality describes rights threshold weight against community goals; rights as trumps ○ Policy  Kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community. describes goals Hercules and hard cases ○ Hercules is expected to "construct a scheme of abstract and concrete principles that provides for coherent justification for all common law precedents and, so far as these are justified on principle, constitutional and statutory principles as well." ○ Hercules decides on the theory of law and justice which best coheres with the "institutional history" of his community. ○ Dworkin's concept of adiudication requires Hercules to seek consistency and integrity in answering legal questions. ○ Treats law as if it were a "seamless web" ○ Effect of the theory of precedent as having "enactment" and "gravitational" force enactment - limited to its precise words gravitational - influence that falls outside the language of the opinion it appeals to the fairness of treating like cases alike Right Answer Thesis ○ Even in difficult decisions, judges and lawyers discussing, arguing, and deciding cases act as if, and talk as if, there were right answers to be found. ○ There are right answers to legal questions for the simple reason that judges must reach a result in the questions before them, and some answers are better than others. ○ The best way to prove or disprove the existence of unique answers in all legal cases is to consider individual, difficult cases, and construct an argument that a particular result is the unique, correct, one, or, to the contrary, to argue that, in this case, no one answer is better than the alternatives Constructive Interpretation ○ Reflective of past governmental actions ○ Making law the best it can be ○ Legal claims are interpretative judgments and therefore combine backward and forward-looking elements. ○ Constructive interpretation - interpretation that makes its object the best that it can be. ○ Both an imposition of form upon the subject being interpreted and a derivation of form from it. ○ In making law, or an area of the law, the best that it can be, the criteria is for that to be "fit". Law as Integrity  ○ According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of a community's legal practice. ○ Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person's situation is fair and just according to the same standards. That style of adjudication respects the ambition integrity assumes, the ambition to be a community of principle. ○ Law as integrity then requires a judge to test his interpretation of any part of the great network of political structures and decisions of his community by asking whether it could form part of a coherent theory justifying the network as a whole. Thomas Aquinas Aquinas defines law as "nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community" Essential characteristics of law: ○ Rationality ○ Authority ○ Common Good For Aquinas, "nothing stands firm with regard to the practical reason, unless it be directed to the last end which is the common good". Therefore, laws that serve only particular interests or contradict the common good are not true laws. The Four Types of Law: ○ Eternal Law This law is the "supreme reason" existing in the mind of God, the ultimate ruler of the universe It is "unchangeable and eternal", representing the divine plan for all of creation. ○ Natural Law: It is "the rational creature's participation of the eternal law" imprinted on our souls.  Aquinas argues that "all things partake somewhat of the eternal law, in so far as... they derive their respective inclinations to their proper acts and ends" The natural law is knowable through reason and directs us toward our natural inclinations for good and avoidance of evil. ○ Divine Law: Revealed through scripture, divine law supplements and reinforces natural law. It guides humans towards their supernatural end—eternal happiness—which surpasses their natural capabilities. Was necessary because "man is ordained to an end of eternal happiness which is unproportional to man's natural faculty" ○ Human Law: Also referred to as positive law, human law consists of specific rules and regulations enacted by human authorities. These laws should be derived from natural law principles to be just and binding May vary across communities due to different circumstances but emphasizes that they should always align with the fundamental principles of natural law. For a law to be binding, it must be communicated to those it governs. ○ Aquinas stresses the importance of promulgation, stating that "in order that a law obtain the binding force which is proper to a law, it must need to be applied to the men who have to be ruled by it" Positive laws "have the power of binding in conscience" ○ Citizens have a moral obligation to obey just laws. ○ However, "an unjust law is not law" and therefore does not bind in conscience. ○ While disobedience should be avoided if it leads to greater harm or scandal, Aquinas recognizes the right to resist unjust laws based on natural law principles. The Summa Theologica Treatise on Law ○ Addresses the essence of law, its different types, its effects, and its relationship to human actions and divine governance. Aquinas engages with objections and counter arguments, demonstrating his rigorous approach to legal and moral reasoning. For instance, he addresses  arguments claiming that law is arbitrary, rooted in power, or irrelevant to personal morality, refuting them through careful analysis and by grounding his arguments in his understanding of human nature and the eternal law. Brian Bix Bix identifies traditional natural law theory as a school of thought that seeks to establish a moral framework for understanding and acting on legal matters. He emphasizes the enduring influence of thinkers like Cicero and Aquinas, who laid the groundwork for this approach. Bix highlights Cicero's seminal definition of natural law as "right reason in agreement with nature” He points out key themes associated with traditional natural law theory: ○ Natural law remains constant across societies and time periods ○ Individuals can discern the principles of natural law through rational thought ○ Only laws aligned with natural law are considered genuinely valid (). Bix discusses Aquinas's significant contributions, including his fourfold classification of law (eternal, natural, divine, and human) and his theory of how positive law derives from natural law ○ Bix notes Aquinas's influential argument that unjust laws are not true laws and may not create a moral obligation to obey Modern Natural Law Theory ○ Believes that it emerged as a direct response to the challenges posed by legal positivism. ○ This approach argues that understanding and describing law inherently requires moral evaluation ○ Unlike traditional natural law theory, modern natural law theory focuses on the internal workings of law itself to demonstrate the inseparability of law and morality. ○ On the core difference between traditional and modern natural law theory: Traditional natural law theory - one can better analyze how to think about and act on legal matters Modern natural law theory - one cannot properly understand or describe the law without moral evaluation Cicero Defines true law as "right reason in agreement with nature" ○ Emphasizes its universality and immutability, stating that it is "of universal application, unchanging and everlasting" ○ He asserts that "there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times" God as the Source and Enforcer of Natural Law ○ Cicero identifies God as the ultimate source and enforcer of natural law, describing God as "one master and ruler... over us all, for he is the author of this law, its promulgator, and its enforcing judge" ○ This divine origin elevates natural law to the highest possible authority, making it superior to any human-made law. Consequences of Disobeying Natural Law: ○ Disobeying natural law is not merely a transgression against an external authority but a betrayal of one's own nature. ○ He contends that "whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment". ○ Thus, for Cicero, violating natural law leads to self-inflicted harm. Only just laws deserve the name "law" ○ Laws inconsistent with natural law are not truly laws. ○ There is an nherent connection between law and justice, stating that "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true" The Laws, Bk II ○ Cicero discusses hierarchical and ecclesiastical laws, focusing on religious maxims and their significance in shaping a just society. ○ He advocates for approaching the gods "with purity" and "in the spirit of devotion". ○ Cicero connects his ideas in Laws, Bk II with his Republic. He sees these legal and religious principles as essential for creating the "best of all republics," The Republic, Bk III  ○ Cicero, through a fictional dialogue involving Scipio, Laelius, and Philus, explores the concept of justice as the foundation of a just commonwealth. ○ He argues that a commonwealth should prioritize the "welfare of the entire people," not merely a particular group. ○ Laelius's Defense of Justice: Laelius, representing Cicero's own views, delivers a powerful defense of justice, asserting that "nothing could be so ruinous to states as injustice and dishonesty, and that without a supreme justice, no political government could expect a long duration". ○ Philus's Counterarguments and the Nature of True Law: Philus raises questions about its practical application in politics. He argues from the perspective of those who believe that "political government cannot be carried on without the aid of injustice and chicanery". This allows Cicero to address and refute common criticisms of a strictly just approach to governance. ○ Responding to these counterarguments, Laelius emphasizes that "true law is right reason conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty by their commands, and avert us from wrong-doing by their prohibitions". Reinforces the idea that true law is rooted in an objective and universal moral order, not subjective interpretations of advantage or expediency. H.L.A. Hart Rejected Command Theory ○ Hart argued that law is better understood as a system of rules, which not only dictate conduct but also confer powers and create procedures for making, changing, and adjudicating legal norms Rule of Recognition ○ A social rule that establishes the criteria for identifying valid legal norms within a given society ○ The rule is not itself a legal rule but a social practice accepted by legal officials (like judges) as the ultimate standard for determining what counts as law.  Separation Thesis ○ Hart argues that legal systems possess their own internal criteria for determining the validity of laws, typically embodied in a rule of recognition accepted by officials within the system This rule need not rely on moral principles; instead, it often points to social facts like legislation, judicial pronouncements, or accepted customs ○ Hart challenges the natural law view that laws are only valid if they conform to some higher moral code. He criticizes theories that "make law a branch of morality" for "confusing one kind of obligatory conduct with another" ○ He argued that law and morality are conceptually distinct, meaning that a rule's legal validity doesn't depend on its moral content ○ However, Hart recognized the complex relationship between law and morality in practice, that a law is valid regardless of its moral content (as long as it's created through the proper procedures), he acknowledged that moral considerations can influence: The content of specific laws: Legislators often draw on moral principles when creating laws. Legal interpretation and adjudication: Judges might use moral reasoning to resolve ambiguities or fill gaps in the law. John Finnis Basic Goods as Foundational Principles ○ Concept of basic goods Self-evident goods that humans pursue for their own sake These goods are not derived from some external source but are intrinsic to human nature and experience. H 7 BASIC GOODS: Life Health Knowledge Play Aesthetic Experience Friendship Religion ○ These basic goods provide the foundation for moral reasoning.  Any intelligible action, regardless of its moral worth, can be understood as pursuing one or more of these goods The key difference between right and wrong actions lies in how these goods are pursued, leading to the next level of Finnis's ethical framework: practical reasonableness Practical Reasonableness ○ Guides us in choosing among the various basic goods and resolving conflicts between them ○ It acts as a methodological principle, shaping our choices and ensuring they align with the requirements of a flourishing human life. ○ 9 Basic requirements of Practical Reasonableness: 9 Basic requirements of Practical Reasonableness: Coherent plan of life Non arbitrariness in the preference among values Non arbitrariness among persons Detachment Commitment Limited relevance of consequences Equal value to all the basic goods, Following one’s conscience The end never justifies the means, where the chosen means entails intending to harm a basic good. ○ The most significant and controversial of these requirement is the absolute prohibition against intentionally harming a basic good as a means to an end Finnis views law as an essential tool for achieving common good by providing a framework for coordinating human action and resolving conflicts in a principled way He argues that a just legal system is one that: ○ Reflects the Basic Goods: Law should be crafted and interpreted in a manner consistent with the pursuit and protection of the basic goods ○ Embraces Practical Reasonableness: Legal rules should embody the principles of practical reasonableness, promoting fairness, consistency, and coherence.  ○ Upholds the Rule of Law: This includes adhering to principles of clarity, publicity, prospectivity, and consistency in application, ensuring that laws are knowable and predictable. Challenging Legal Positivism: ○ Finnis argues that legal positivism ultimately fails to account for the moral force of law and the obligatory nature of legal rules. He contends that: ○ Finnis criticizes positivists like H.L.A. Hart for attempting to ground legal validity in a "rule of recognition" based on social acceptance by officials, such a rule, if divorced from moral considerations, is insufficient to explain the binding nature of law and the obligation to obey it ○ Finnis challenges the positivist separation of law as “it is" from law as it "ought to be”, arguing that moral judgments are integral to how judges interpret and apply legal rules. Judges inevitably draw on their understanding of justice and fairness, particularly in hard cases where the law is unclear or incomplete Lon Fuller The internal morality of law ○ Emphasizes the procedural and structural aspects that contribute to a just and functional legal system, arguing that these aspects have inherent moral value and are essential for a system to rightly be called "law." Law is a Purposeful Enterprise ○ Fuller criticizes the separation of law as "it is" from law as it "ought to be," arguing that it fails to capture the full complexity of legal systems and the experience of living under law. ○ Fuller challenges the image of law as a one-way projection of power, arguing instead that it's a collaborative enterprise aimed at guiding human behavior toward social order The Morality of Law: ○ For a system of rules to function as genuine law, it must adhere to what he terms the "internal morality of law," consisting of eight key principles, also referred to as Principles Of Legality: Generality Promulgation (Publicity) Prospectivity  Clarity Non-Contradiction Possibility of Compliance Constancy (Stability) Congruence Between Rules and Official Action Fuller recognizes that even morally abhorrent regimes may adhere to these principles of legality to make their systems more effective ○ However, he maintains that adhering to these principles, even imperfectly, makes a legal system more conducive to achieving substantive justice. ○ This reflects Fuller's distinction between the: Morality of duty - focuses on avoiding harm Morality of Aspiration - encourages striving for excellence in all areas of human endeavor, including lawmaking Plato Plato's believes in a higher order—reflected in his Theory of Forms, where perfect and unchanging concepts like justice exist independently of the material world—resonates with the natural law idea of a universal and immutable moral order. Plato's Influence on Natural Law Theory: ○ Brian Bix identifies Plato, along with Aristotle, as one of the early Greek thinkers whose writings express natural law positions. ○ Cicero, a prominent Roman philosopher and proponent of natural law, explicitly acknowledges Plato's influence on his own thinking about law He notes that Plato was the "first man who ever composed a treatise on a Commonwealth, and afterwards a separate one on Laws" Key Ideas from Laws, Book IV: ○ Cicero's reference to Plato's emphasis on persuasion rather than force in law provides a clue about Plato's broader approach to law and governance. Plato saw law not merely as a tool for coercion but as a means of guiding citizens towards virtue and a just society. Ronald Dworkin Argues against a strict separation of law and morality. Instead, Dworkin contends that moral reasoning is integral to understanding, describing, and practicing law, particularly in the realm of judicial decision-making. Legal positivism fails to account for the central role of moral principles in legal reasoning and the experience of legal practitioners who debate not just the application of rules but also the very grounds of legal validity. He summarizes his view: ○ Legal claims are interpretive judgments and therefore combine backward- and forward-looking elements; they interpret contemporary legal practice as an unfolding narrative. Here are some key aspects of Dworkin's challenge to legal positivism: ○ Law Contains Principles, Not Just Rules: Dworkin argues that legal systems consist not just of clear-cut rules (which dictate outcomes in an all-or-nothing fashion) but also of underlying principles that have "weight" and influence judicial decisions, even in hard cases where no clear rule applies ○ The "Right Answer" Thesis: Against the positivist view that judges exercise discretion (essentially making new law) in hard cases, Dworkin argues that there is always a "right answer" to legal questions, discoverable through careful interpretation of existing legal materials and guided by principles of moral and political philosophy ○ Law as "Constructive Interpretation": Dworkin analogizes legal interpretation to artistic or literary interpretation, where the goal is to find the interpretation that best fits the existing work (past legal decisions, statutes, constitutional provisions) while also showing it in its best light—making it the most morally coherent and justifiable system it can be Rejecting the "Archimedean" Legal Theory: ○ Dworkin directly addresses the contention that his interpretive approach cannot be a genuine theory of what law "really is"  Dworkin argues against this attempted "Archimedean" stance, claiming that legal theory cannot stand outside of law as a neutral observer ○ He argues that describing law is already engaging in a form of lawmaking, interpreting the practice from within, and therefore, legal theory must be as "normative" (concerned with moral justification) as the legal reasoning it seeks to explain Soft Positivism ○ Soft Positivism - Incorporating moral principles into the "rules of recognition" that define legal validity in a particular legal system ○ It will ultimately fails because it either: Makes Morality Contingent on Arbitrary Conventions: If moral principles are part of the law only because they've been explicitly incorporated by some past decision, then law's moral content seems arbitrary and dependent on the whims of legal officials, undermining the sense that legal rights have genuine moral weight Fails to Explain Deep Disagreements About Law: "Soft positivism" struggles to explain fundamental debates about legal validity, like those regarding the proper scope of judicial review or the moral limits of the law, because it reduces these to mere disagreements about social facts when, in reality, they reflect deep moral and political differences that shape legal interpretation itself LEGAL REALISM Realism, a snapshot “Realism” in legal realism: “being realistic”; being worldly, looking beyond ideals and appearances for what is “really going on” FOCUS: ○ On judicial decision-making - asserting that a proper understanding of judicial decision-making would show that it is fact-centered; that judges’ decisions were often based (consciously or unconsciously) on personal or political biases and constructed from hunches; and that public policy and social sciences should play a larger role  ○ Critique of legal reasoning - legal rules and concepts were in fact often indeterminate within legal reasoning; rarely as neutral as they were presented as being. Brian Z. Tamanaha - Understanding Legal Realism Questions the predictability and consistency of mechanical application of legal rules. "Understanding Legal Realism" sets out to correct the misunderstandings of Legal Realism,, arguing that the Legal Realists' position on judging was actually a balanced realism. ○ Legal realism is largely misunderstood because the work of the Realists is interpreted within a false set of historical and theoretical assumptions. The Two Sides of Balanced Realism: According to Tamanaha, this balanced realism acknowledges both the skeptical and rule-bound aspects of judging. ○ Skeptical Aspect: Judges must sometimes make choices, can manipulate legal rules and precedents, and can be influenced by their own political and moral views and personal biases. Realism refers to an awareness of: the flaws, limitations, and openness of law, that judges must sometimes make choices that they can manipulate legal rules and precedents that they can be influenced by their political and moral views and by their personal biases Underscores the Legal Realist view of stare decisis as a flexible doctrine, subject to judicial interpretation and manipulation to achieve desired outcomes. Courts "manipulate the language of former decisions" by emphasizing convenient distinctions. ○ Rule-Bound Aspect: Legal rules can work; judges can abide by and apply the law; practice-related, social, and institutional factors  constrain judges; and judges can render generally predictable, legally based decisions. A realistic view holds that the rule-bound aspect of judging can function reliably notwithstanding the challenges presented by the skepticism- inducing side, although this is an achievement that must be earned, is never perfectly achieved, and is never guaranteed. Balanced realism recognizes that the rule-bound aspect of judging can function reliably despite the challenges posed by the skepticism-inducing side. However, this reliability is an achievement that must be earned, and is neither perfect nor guaranteed. Legal Realists were not radical skeptics about judging, realistic observations about judging were common in legal circles long before the emergence of Legal Realism. ○ The Legal Realists were not radical skeptics about judging.... 'The realists pointed to the role of idiosyncrasy in law, but they believed in a rule of law-hence they attempted to make it more efficient and more certain' The Misunderstood Legal Realists - Legal Realists were not against the rule of law, their goal was to improve the predictability of law, rather than to claim that judging was arbitrary. ○ While some Legal Realists, strongly emphasized the skeptical side of judging, a closer look at their writings reveals that they, too, recognized the constraining factors inherent in law. Karl N. Llewellyn - Some Realism About Realism — Responding to Dean Pound Paper Rules Real Rules ones found in legal texts Ones that judges actually apply in Rarely accurately describe judicial practice behavior, and while they sometimes Ones that judges actually use to make influence decisions, more often they decisions, and they are often shaped are not followed by factors such as social norms, personal values, and the specific facts  of the case "Some Realism About Realism—Responding to Dean Pound" serves as a direct rebuttal to Roscoe Pound's criticisms of Legal Realism and as an attempt to clarify the movement's core tenets and dispel misconceptions surrounding it. ○ The conception of law in flux, of moving law; and of judicial creation of law. ○ The conception of law as a means to social ends, and not as an end in itself. ○ The conception of society in flux- faster than law. ○ The temporary divorce of “is” and “ought” for the purpose of study. ○ Distrust of traditional rules and concepts as descriptive of what courts or people actually do. Realist focus on the "law in action", stating that "Law" without effect approaches zero in its meaning" Law is not merely a collection of abstract rules but rather a dynamic process rooted in the actions of judges. ○ Behind decisions stand judges; judges are men; as men they have human backgrounds. Beyond rules, again, lie effects: beyond decisions stand people whom rules and decisions directly or indirectly touch. Importance of moving beyond abstract legal principles to understand law as it functions in practice, stating: ○ Before rules, were facts; in the beginning was not a Word, but a Doing. Emphasizes observing actual legal processes and their impact on people's lives is central, stating: ○ The realists prove the value, for the normative, of temporarily putting the normative aside. They return from their excursion… with a demonstration that the field of free play for Ought in appellate courts is vastly wider than traditional Ought-bound thinking ever had made clear.  Role of "Ought" in "Is" Investigations ○ Recognizes that societal values and desired outcomes (the "Ought") inevitably influence legal decision-making. ○ He notes the challenge of separating these two aspects, stating that: Realists believe that experience shows the intrusion of Ought-spectacles during the investigation of the facts to make it very difficult to see what is being done. This suggests that while striving for objectivity, it acknowledges the inherent difficulty of achieving a purely value-neutral analysis of law. Importance of understanding the impact of legal rules and decisions on individuals and society. He states: ○ Describing and predicting the effects of [legal actors'] action on the laymen of the community. Illusion of Certainty: ○ Llewellyn challenges the notion that law provides absolute certainty or easily predictable outcomes. ○ He argues that the search for certainty in law often leads to a focus on abstract rules while overlooking the complexities of real-world application. ○ As he states, The particular kind of certainty that men have thus far thought to find in law is in good measure an illusion. ○ This critique of legal certainty does not imply that Llewellyn rejects the importance of predictability in law, but rather that he sees the pursuit of absolute certainty as misguided and potentially obscuring of other important aspects of the legal system. The Interplay of Rules and Discretion: ○ Legal rules provide a framework for decision-making. ○ Significance of discretion judges possess within that framework. He states: Every single precedent, according to what may be the attitude of future judges, is ambiguous, is wide or narrow at need.  ○ Understanding judicial decision-making requires looking beyond legal rules to factors like judges' individual perspectives and social context. He challenges the notion of objective, logical reasoning as the sole driver of judgments. ○ The vast "leeway in interpretation of precedent", advocating for transparency in acknowledging the policy considerations that inevitably influence legal interpretation. Emphasizes the dynamic nature of stare decisis, enabling both continuity and change within the legal system. Cautions against viewing the movement as a monolithic entity with a unified doctrine. He argues: ○ A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group. The Bramble Bush ○ A Glimpse into Llewellyn's Approach to Law ○ He advocates for a more pragmatic and context-driven approach to legal study, encouraging students to look beyond abstract rules and consider the practical realities of the legal profession. Max Radin - Legal Realism His work entitled “Legal Realism” is a direct response to Dean Roscoe Pound's critique of Legal Realism. Emphasizes the practical application of legal rules, rather than their abstract formulation, is a key tenet of Legal Realism. ○ Law is what courts and partly irresponsible administrative agencies will do or say within the limits set by statutes and public opinion. We must begin with this clumsy description in order to be realists. Judges as Realists and Conceptualists: Judges can embody both realist and conceptualist approaches.  ○ He posits an ideal where judges are conscious of their role in shaping law through individual cases involving "non-interchangeable human beings." Each person brings a unique set of experiences, relationships, and circumstances to a legal dispute. By emphasizing "non-interchangeability," it urges judges to be attentive to the specific details of each case and avoid imposing rigid or formulaic solutions that might not account for individual nuances. While similar fact patterns might recur, the context surrounding those facts can significantly alter their legal and ethical implications. Two individuals might be involved in seemingly identical contract disputes, but their respective social positions, economic vulnerabilities, or past dealings could drastically change how a judge might interpret fairness and justice in each situation. The human element inherent in legal disputes necessitates a degree of flexibility and contextual understanding that abstract legal principles alone cannot provide. By highlighting the "non-interchangeable" nature of individuals, it pushes for a legal approach that considers the human consequences of legal decisions, not just their conformity to abstract rules. ○ However, he also recognizes that judges are influenced by their backgrounds, biases, and the surrounding social context. The Importance of Recognizing Standards: Radin argues that Legal Realists, while focused on the practical aspects of law, cannot ignore the role of values and standards in shaping legal judgments. He states: ○ [Realist jurists] cannot be realists unless they are well aware, either as judges or critics of judges, that the business of judgment is to decide between a better and a worse readjustment of the human relations disturbed by an event, and that the terms better or worse imply a valuation and a standard." This suggests that Radin sees ethical considerations as integral to a complete understanding of how law operates in the real world.  It Is Not A Radical Break From Previous Legal Thought: Legal realism’s emphasis on observing how law functions in practice has roots in earlier intellectual traditions. He states: ○ Dean Pound regards realism as assuming the air of an adventurous and new school which challenges the dominance and the authority of the analytic and historical schools established in the nineteenth century… If realism is a new form of this demand, only its name is new. Conceptualism as a Tool: Radin recognizes the value of "conceptualism" - the use of abstract legal concepts and categories - as a tool for organizing and understanding the vast body of legal doctrines and historical materials. ○ Conceptualism should serve a secondary role to the primary task of understanding how law operates in practice. Oliver Wendell Holmes Emphasizes on experience and the limitations of purely logical deductions in law. Law as Experience, Not Logic ○ He states: The life of the law has not been logic: it has been experience. ○ The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. ○ This states that law cannot be reduced to a closed system of rules, instead, legal principles evolve through the lived experiences of a society and its courts. Attack on Formalism ○ Arguments are presented as if the conclusion followed simply and inexorably from undeniable premises ○ “Mechanical jurisprudence” - most judicial decisions should or could be deduced from general concepts or general rules, with no attention to real-world conditions or consequences  ○ Case method in legal education - “law is a science that all available materials of the science are contained in printed books [of judicial opinions] (Christopher Columbus Langdell, 1887); The science of law involved the search for a system of general, logically consistent principles, built up from the study of particular instances.” ○ The formalist pattern of deductive reasoning: Legal Rule (major premise) Relevant Facts (minor premise) Judgment ○ Common law concepts and standards are not “neutral” or “objective”. ○ General concepts or general legal rules do not determine the results in particular cases ○ Even if the law is determined and is sufficient to decide the case, it may be that the law may be changed. Skepticism Towards Formalism: Legal formalism—the idea that law can be a complete and internally consistent system where decisions flow directly from predetermined rules. Law as a Tool for Social Ends: ○ Holmes argues that: The final justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants." Prediction as the Object of Legal Study: He argues that people consult lawyers to understand the likely consequences of their actions under the law. This focus on predicting how courts will apply the law, rather than on discovering inherent meaning in legal doctrines. BOOK: The Common Law ○ The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified… Law is defined by reference to what the courts actually said it was. Bad man theory of law Legal developments can be scientifically justified ○ Emphasizes the historical evolution of legal principles, demonstrating how ancient concepts like revenge and societal practices shaped modern legal doctrines.  ○ Holmes challenges the perception of law as purely logical deduction from axioms, stating that "the law embodies the story of a nation's development" and must be understood through its historical context. ○ He illustrates the evolution of liability, showing how early forms focused on "actual intent and actual personal culpability" transitioning towards more nuanced understandings influenced by social and economic factors. ○ Holmes uses the example of maritime law to showcase the personification of ships. He argues that this attribution of personality to vessels helps explain the unique development of maritime liability rules, suggesting a connection between legal thought and societal perceptions. BOOK: Law in Science and Science in Law ○ Importance of a scientific approach to law, advocating