Legal Positivism Notes PDF

**[PHILOSOPHY FINALS NOTES WEEKS 7-12]** **[WEEK 7 =] Legal Positivism** What is legal positivism ? - \"the thesis that the existence and content of law depends on social facts and not on its merits.\" - Legal positivists argue that the moral correctness of law is irrelevant when we...

**[PHILOSOPHY FINALS NOTES WEEKS 7-12]** **[WEEK 7 =] Legal Positivism** What is legal positivism ? - \"the thesis that the existence and content of law depends on social facts and not on its merits.\" - Legal positivists argue that the moral correctness of law is irrelevant when we want to answer the question whether a law exists or not. - Positive laws require that a legal authority to \"posit\" or enact them - Hans Kelsen= argue that law is an autonomous system of norms: a legal rule or norm, like a court judgment, is a valid rule if and only if it applies other, higher level norms like statues. - Legal norms form \"chains\" of norms and receive their validity from each other **WEEKLY QUESTIONS** 1. **[Explain the main characteristics of legal positivism.]** **Law as an Autonomous System** - Legal positivism views law as an independent system of rules or norms, distinct from politics or morality. - The rules are not isolated; they belong to and function within the same structured system. - This autonomy means law governs its own creation, interpretation, and application without relying on external influences like morality or religion. **Law as a Human Construct** - Law is not divinely ordained or discovered through reason but is created by competent human authorities. - It is a social fact, existing because humans have established it. **Separation of Law and Morality** - There is no inherent connection between law and morality; law is about legal rules, not moral or political judgments. - Judges might use moral reasoning in their decisions, but an unjust law is still a law in the positivist framework. **Focus on Legal Validity** - Legal positivists emphasize understanding law in purely legal terms, rather than through other forms of normativity or power. - Valid law is determined by formal criteria, not by moral rightness or threats of - sanctions. **Formal Criteria of Legal Validity** - A legal system is governed by higher-level rules that establish: - How laws are created and modified. - Which authorities are competent to enact laws. - Procedures for resolving disputes over the application of laws. - These criteria enable us to distinguish laws from other norms or commands. **Contemporary Perspectives** - Modern legal positivists explore the idea that one ought to obey the law simply because it is the law, not due to fear of sanctions or moral obligation. - This approach underscores the importance of understanding law as a system of rules with its own internal logic and structure. 2. **[Explain Kelsen\'s view on legal positivism.]** **1.Pure Theory of Law** - Kelsen aimed to create a \"pure\" theory of law, free from moral or political influences: - **Against Natural Law Theory**: Natural law argues that legal systems must align with moral constraints, but Kelsen rejected this as reducing law to morality. - **Against Command Theory**: Command theory sees law as the will of a political sovereign and reduces it to a mere fact of command. - For Kelsen, these approaches misunderstand law by grounding it in something external. Instead, law must be understood in its own terms, independent of morality or politics. **2.Legal Norms as Interpretative Schemas** - Legal norms act as frameworks for interpreting facts and behaviors as legally relevant: - **Subjective and Objective Meaning**: Every act can have both a subjective meaning (the intent of the actor) and an objective legal meaning assigned by the legal system. - Kelsen saw the general theory of law as a \"theory of interpretation,\" where norms serve as lenses that provide legal relevance to actions. - Example: Someone signing a contract may subjectively intend to enter into an agreement, but the objective legal meaning would classify it as a binding legal obligation under the law. - Kelsen described the general theory of law as a \"theory of interpretation.\" Legal norms serve as \"lenses\" that allow us to interpret acts as legally significant, such as classifying a killing as \"manslaughter\" or a tax payment as fulfilling a legal obligation. **3.Core Theses of the Pure Theory of Law** - **The Separation Thesis**: The existence of a law does not depend on its moral correctness. - A law permitting something morally questionable (e.g., gambling) remains valid as long as it complies with the formal legal framework, regardless of moral objections. - **The Normativity Thesis**: Legal norms cannot be based on mere facts; they derive their authority from other norms. - This means law is not grounded in brute facts like power or coercion but operates within a framework of norms that provide its legitimacy. **4. Hierarchy and the Basic Norm** - Law operates as a hierarchical system of norms: - Each valid norm derives its authority from a higher norm. - A court\'s decision must comply with statutes. - Statutes must comply with the constitution. - This chain of validation culminates in the \"historically first constitution,\" which acts as the ultimate foundation of the legal system. - **The Basic Norm**: Kelsen\'s term for the presupposition that underpins the legal system. It is assumed to be valid, as no higher legal norm can ground it. It is assumed to be valid, even though it cannot be justified by a higher legal norm. - Example: The idea that \"we ought to follow the constitution\" is the basic norm that validates the rest of the legal system. **5.Effectivity and Validity of Law** - **Effectivity**: For law to function, people must generally respect and obey it, including the constitution under which laws are created. - Example: A tax law might lose effectivity if citizens refuse to pay taxes and the government cannot enforce compliance. - **Validity**: A law\'s validity depends on its place within the chain of norms. - While effectivity (social compliance) is necessary, the law is not valid simply because it is effective; it is valid because it adheres to the hierarchical system of norms. - Validity is about whether the law conforms to the legal system\'s rules. - Example: A constitutionally valid law that nobody follows may be valid but ineffective - Modern legal systems are autonomous, hierarchical, and historically rooted, relying on collective acceptance by society. - Kelsen emphasized that modern legal systems are autonomous (independent of morality or politics), hierarchical (norms derive authority from higher norms), and historically rooted (they evolve based on historical acceptance). - These systems rely on collective societal acceptance to function; people must broadly agree to be bound by the laws for them to remain valid and effective. 3. **Explain the elementary character of formalist legal reasoning.** **1.Kelsen\'s View on Formalism in Legal Reasoning** - **Legal Reasoning and Formalism**: - Kelsen tied the concept of valid law to **formalist legal reasoning**, which emphasizes a structured and logical approach to applying the law. - **What is Formalism?** - Formalism is a method of legal reasoning focused on the consistent and impartial application of legal rules. It avoids reliance on external factors like personal beliefs, politics, or morality. - In its simplest form, formalism involves three steps: - **Discovering Applicable Rules**: Determining which legal rules or norms apply to the case. - **Describing Relevant Facts**: Establishing the factual circumstances of the case based on evidence. - **Applying Rules to Facts**: Combining the legal rules and the facts to reach a legal judgment. **2. Formalist Legal Reasoning (Part 1): Hierarchical Decision-Making** - **Hierarchy in Legal Systems**: - Kelsen viewed the legal system as a hierarchical structure of norms, where each norm derives its validity from a higher norm. - Court decisions (specific, concrete norms) must adhere to this hierarchy to ensure validity. - **Concrete Norms and Abstract Norms**: - A **concrete norm** is the specific outcome of a legal decision (e.g., Peter is sentenced to five years for involuntary manslaughter). - A **concrete norm** must be derived from higher-level, more abstract norms, including: 1. **Statutes**: General laws that define crimes and their consequences (e.g., manslaughter laws). 2. **Procedural Rules**: Laws that govern how trials and legal proceedings are conducted. 3. **Constitution**: The ultimate source of authority in the legal system, which empowers courts and legislators. - **Example of Hierarchical Reasoning**: - If a court sentences Peter to prison for manslaughter, that decision must comply with: 1. The criminal statute that defines manslaughter and prescribes penalties. 2. Procedural laws that ensure Peter's trial was fair and followed due process. 3. The constitution, which grants the court the authority to interpret and apply these laws. This hierarchical reasoning ensures that decisions are valid within the broader legal system, maintaining consistency and coherence. **3.Formalist Legal Reasoning (Part 2): Logical Structure of Decisions** - **Step-by-Step Logic**:\ Formalist legal reasoning involves a clear logical structure: 1. **Premise 1: The Norm Sentence**: - Identify the legal rule(s) relevant to the case. For example:\ *"If someone is found guilty of involuntary manslaughter, they ought to be sentenced to prison."* 2. **Premise 2: The Fact Sentence**: - Establish the facts of the case using evidence. For instance:\ *"Evidence shows Peter caused Charles's death without intent, fulfilling the criteria for involuntary manslaughter."* 3. **Conclusion: The Judgment**: - Combine the norm and fact sentences to produce the judgment:\ *"Therefore, Peter ought to be sentenced to serve time in prison."* - **Why Formalism Matters**: 1. Formalism ensures that judgments are made according to established legal norms, not arbitrary or subjective factors. 2. It reinforces the autonomy of the legal system by keeping legal reasoning confined to the system\'s internal logic. **4.Why This Approach Is Important in Kelsen's Theory** - **Objectivity and Predictability**: - By following a structured process, formalism reduces subjectivity in legal decision-making, ensuring that similar cases yield similar outcomes. This reinforces fairness and predictability in the legal system. - **Legitimacy of the Legal System**: - Hierarchical reasoning shows that legal decisions are grounded in established norms, not arbitrary choices. This strengthens the legitimacy of the legal system as a rational and coherent entity. - **Distinction from Morality or Politics**: - By relying only on legal norms, formalism maintains the autonomy of the law, a key aspect of Kelsen's pure theory. Legal judgments are made based on the system\'s internal logic, not influenced by external moral or political considerations. 4. **[Explain Schmitt\'s critique of Kelsen and his decisionist approach to legal reasoning.]** **Schmitt's Critique of Kelsen and Formalist Legal Reasoning** - **Disagreement with Formalism**: - Schmitt rejected Kelsen\'s formalist view that legal rules are applied mechanically to facts through a logical and hierarchical process. - **Why?**: Schmitt argued that legal norms cannot function independently of the political context. The application of law is not an automatic or purely technical process. **The Role of the Sovereign** - **Political Basis of Law**: - According to Schmitt, the legal system ultimately relies on a non-legal, political decision made by the **sovereign**. - **Who is the Sovereign?**: The sovereign is the authority that holds the power to decide whether the law can function or needs to be suspended. - **Normal vs. Emergency Situations**: - Schmitt claimed that the application of law depends on whether the state is in a **normal situation** or an **emergency**: 1. **Normal Situation**: The sovereign determines that conditions are stable, allowing laws to be applied regularly. 2. **Emergency Situation**: The sovereign decides that the state faces a crisis threatening its existence, requiring the suspension of normal laws in favor of extraordinary measures. 1. Schmitt's famous phrase, *\"Inter arma silent leges\"* (In times of war, the laws fall silent), captures this idea. **Decisionism: Schmitt's Approach to Legal Reasoning** - **What is Decisionism?** - Decisionism is the view that legal reasoning and the application of law ultimately depend on the **decision of the sovereign**, not on an impersonal, mechanical application of rules. - **Key Point**: Legal norms do not automatically apply themselves to facts. The sovereign decides which situations are \"normal\" enough for the law to be applied. - **Law as Conditional**: - Schmitt argued that formal legal reasoning is **conditional** on the sovereign's decision to allow the law to operate. - **Example**: - In normal circumstances, a court might logically apply laws to resolve a dispute. - In an emergency (e.g., a war or revolution), the sovereign may suspend those laws to prioritize national security. **Schmitt's Critique of Kelsen's Pure Theory of Law** - **Kelsen's Mistake, According to Schmitt**: - Kelsen viewed the legal system as autonomous and independent of external factors like politics. - Schmitt countered that Kelsen ignored the **political foundation of law**---laws cannot function without a prior political decision enabling them. - **The Key Critique**: The entire legal system is based on a sovereign decision, which is inherently political, not legal. - **The Sovereign\'s Power Over Exceptions**: - Schmitt emphasized the sovereign's unique authority to decide on **exceptions** to the law. - For Schmitt, the exception (e.g., an emergency that justifies suspending laws) reveals the true nature of sovereignty and exposes the limits of formalist legal reasoning. 1. **Normal Situation**: - In peaceful times, courts function as per the legal framework, and laws are applied logically to cases. - Example: A judge sentencing someone for theft according to criminal statutes. 2. **Emergency Situation**: - Suppose the state faces a national security crisis, such as a foreign invasion. - The sovereign might declare martial law, suspend ordinary legal processes, and allow actions that would otherwise be illegal (e.g., detaining individuals without trial). - In this case, the law is no longer applied based on norms but on the sovereign's decision to prioritize the survival of the state. 5. **Analyze a case from the formalist Kelsenian and the decisionist Schmittian perspective.** **Week 8 = Natural law theory** 1. **[explain the main arguments presented in the Radbruch-Hart-Fuller -debate on the separation of law and morality;]** **Gustav Radbruch: Law and Morality are Interconnected** - **Context**: Radbruch was a legal philosopher who began as a legal positivist but, after witnessing the legal abuses under the Nazi regime, shifted to a more moral-based view of law. - **Radbruch's Formula**: - Radbruch argued that laws must conform to basic principles of **justice** to be valid. He proposed: - **Ordinary Law**: When a law is unjust, it remains valid and must be followed unless the injustice is extreme. - **Extreme Injustice**: When a law contradicts basic morality to an intolerable extent, it ceases to be law (*\"an unjust law is no law at all\"*). - **Critique of Legal Positivism**: - Radbruch believed legal positivism (the separation of law and morality) enabled the Nazis to justify their legal atrocities, as it allowed laws to be valid regardless of their moral content. - **Core Idea**: The law cannot be separated from morality. Extreme injustice invalidates the legitimacy of legal rules. **H.L.A. Hart: Defending Legal Positivism** - **Context**: Hart, a prominent legal positivist, responded to Radbruch's critique by defending the separation of law and morality. - **Main Arguments**: 1. **Law as a Social Fact**: - Hart argued that laws are a product of human decisions and societal practices, not moral judgments. - A law's validity depends on its compliance with established criteria (e.g., legislative procedure), not on its moral content. 2. **Distinction Between Law and Morality**: - Hart emphasized that recognizing an immoral law as \"law\" does not mean endorsing it. Instead, it allows for legal systems to be analyzed and critiqued independently of moral perspectives. - For Hart, the problem with Nazi laws was not that they were \"illegal\" but that they were morally reprehensible and should have been opposed on moral grounds. 3. **Pragmatic Concerns**: - Hart warned against conflating law and morality because doing so could undermine legal certainty. Without a clear boundary, legal systems would become unpredictable. **Lon L. Fuller: The Inner Morality of Law** - **Context**: Fuller criticized both Radbruch's and Hart's views, proposing a middle ground emphasizing the **procedural morality** of law. - **Main Arguments**: 1. **Law Has an Inner Morality**: - Fuller argued that law inherently contains moral principles, which he called the \"inner morality of law.\" These principles ensure that the law serves its purpose of guiding human behavior. - Examples of Inner Morality: - Laws must be publicly accessible. - Laws must be clear and understandable. - Laws must not contradict each other. - Laws must not be retroactive. - A legal system that violates these principles fails to be a true legal system, regardless of its moral content. 2. **Critique of Hart**: - Fuller criticized Hart for ignoring the procedural morality essential to the function of law. Hart\'s purely descriptive approach overlooked how law's procedural nature reflects moral commitments. 3. **Critique of Radbruch**: - Fuller agreed with Radbruch on the importance of morality but focused more on procedural justice than on substantive morality (e.g., the content of laws). ---------------------- ---------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- **Law and Morality** Law must align with moral principles, or extreme injustice invalidates it. Law is separate from morality; a law's validity depends on procedural criteria, not moral content. Law has an inherent procedural morality (e.g., fairness, clarity, and consistency). ---------------------- ---------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------ -------------- ---------- ------------ **Aspect** **Radbruch** **Hart** **Fuller** ------------ -------------- ---------- ------------ ----------- --------------------------------- -------------------------------------- ----------------------------- **Focus** Substantive morality (justice). Social fact of law, legal certainty. Procedural morality of law. ----------- --------------------------------- -------------------------------------- ----------------------------- ----------------------- -------------------------------------------------- -------------------------------------------------- ---------------------------------------------------- **View on Nazi Laws** Nazi laws were so unjust they ceased to be laws. Nazi laws were valid laws but morally abhorrent. Nazi laws failed procedural standards of legality. ----------------------- -------------------------------------------------- -------------------------------------------------- ---------------------------------------------------- ----------------------------- ------------------------------------------------------ ---------------------------------------------------------------- ------------------------------------------------------------- **Criticism of Positivism** It enables moral blindness in the face of injustice. Conflating law and morality risks undermining legal certainty. Positivism ignores the procedural moral commitments of law. ----------------------------- ------------------------------------------------------ ---------------------------------------------------------------- ------------------------------------------------------------- 2. analyze a contemporary case in the light of that debate. - pozrieť zajtra **WEEK 9 = Legal Realism** 1. **[Explain the main ideas of American legal realism and critical legal studies;]** - Legal Realists emphasize the gap between written laws (\"law on the books\") and how laws are actually applied and enforced in real-life situations (\"law in action\"). - They argue that legal outcomes depend more on the discretion of judges, the behavior of legal actors, and the social context than on the strict application of legal rules. - Example: A statute may mandate equal treatment, but systemic biases and discretionary decisions often result in unequal outcomes. - Rule-skepticism is a core tenet of Legal Realism, questioning the determinacy of legal rules. Realists argue: - Legal rules are inherently vague: Broad or general language allows for multiple interpretations. - Judicial discretion is inevitable: Judges must choose which rules to apply, how to interpret them, and which precedents to follow. - Example: In tort law, the concept of \"reasonable care\" varies depending on the context, allowing judges to reach different conclusions in similar cases. - Rule-skepticism underscores that legal outcomes are influenced more by judicial preferences, policy considerations, and societal norms than by the mechanical application of rules. - Fact-skepticism critiques the objectivity of fact-finding in legal proceedings. Legal Realists argue that: - Evidence is subjectively evaluated: Judges and jurors interpret evidence through the lens of their own biases, experiences, and cultural norms. - The presentation of facts is strategic: Lawyers shape narratives to persuade decision-makers, influencing how facts are perceived. - Example: In a criminal trial, the credibility of a witness may depend on the social background or implicit biases of the judge or jury. - Fact-skepticism reveals the subjective and contested nature of determining \"facts\" in legal cases, further complicating the predictability of legal outcomes. - Oliver Wendell Holmes Jr., a key influence on Legal Realism, proposed the bad man theory to explain legal behavior: - The \"bad man\" views the law pragmatically, focusing on the consequences of legal violations rather than on moral obligations or justice. - For the bad man, the law is not a moral guide but a set of predictions about how courts will act. - Example: A corporation deciding whether to comply with environmental regulations may weigh the cost of penalties against the cost of compliance, treating the law as a risk management tool. - This theory reflects Realists\' emphasis on the practical and strategic dimensions of legal behavior rather than abstract legal ideals. - Legal Realists advocate integrating insights from sociology, psychology, and economics to understand law as a social phenomenon. - They argue that studying the behavior of judges, lawyers, and litigants, as well as the societal impacts of legal decisions, is essential for a realistic understanding of law. - Example: Economic analysis of law examines how legal rules affect behavior and resource allocation, highlighting the practical consequences of legal frameworks. - Legal Realism rejects formalism, the view that legal reasoning is purely logical and objective: - Judges do not merely \"discover\" the law: They actively create law through their decisions. - Legal reasoning involves subjective choices: Judges consider policy implications, personal values, and societal norms. - Example: Precedents often provide conflicting guidance, requiring judges to choose which to prioritize. - Legal Realists redefine law as a system for predicting judicial behavior rather than as a set of binding rules. - This pragmatic approach emphasizes understanding how judges actually decide cases rather than theorizing about how they ought to decide - **Law as a Tool of Power**: CLS posits that law functions to maintain the dominance of privileged groups, reinforcing existing social, economic, and political inequalities. - **Indeterminacy and Contradiction**: CLS scholars highlight the inherent contradictions and indeterminacies within legal doctrines, arguing that these allow for manipulation by those in power to achieve desired outcomes. - **Critique of Liberal Legalism**: CLS critiques the liberal legalist notion that law is a neutral arbiter of justice. They argue that this perspective obscures the ways in which law legitimizes and perpetuates systemic inequalities. - **Law and Ideology**: CLS emphasizes that law is intertwined with ideology, shaping and being shaped by societal beliefs and power relations. This relationship serves to naturalize and legitimize the status quo. - **Emphasis on Social Transformation**: CLS advocates for transformative approaches to law, seeking to uncover and challenge the underlying power dynamics that law sustains, with the aim of achieving social justice. 2. **[explain the CLS argument that legal rules and rights are indeterminate;]** - **1. The Indeterminacy of Rights** - Tushnet highlights the **indeterminacy of legal rights**, a core CLS critique, by showing that rights-based arguments often lead to contradictory conclusions: - Legal rules and precedents can be interpreted in multiple ways, allowing courts to justify diverse outcomes. - For example, the right to free speech may conflict with the right to privacy, forcing courts to make value-laden judgments that reflect societal power structures rather than neutral principles. - Rights do not inherently dictate solutions to conflicts; instead, their application depends on judicial discretion and broader political contexts. - - **2. Rights as Individualistic Constructs** - Rights, Tushnet argues, are **deeply individualistic** and often undermine collective action or solidarity: - Liberal rights theory prioritizes individual autonomy over collective welfare, fragmenting communities and discouraging systemic reform. - This focus on individualism limits the transformative potential of rights-based struggles by framing social issues as conflicts between atomized individuals rather than structural injustices. - **3. The Ideological Function of Rights** - Tushnet critiques the **ideological function of rights** in maintaining the status quo: - Rights discourse presents law as a neutral arbiter of social conflicts, masking its role in legitimizing power hierarchies. - By framing rights as universal and ahistorical, liberal theory obscures the ways in which rights are shaped by, and reinforce, existing inequalities. - **Example**: Property rights often privilege the wealthy and powerful, entrenching economic disparities while presenting these outcomes as natural or inevitable. - **4. Rights and Social Change** - While acknowledging the strategic use of rights in social movements, Tushnet argues that a **rights-centered approach to social change is limited**: - Rights litigation tends to produce narrow, incremental reforms that leave underlying structures of inequality intact. - Legal victories can co-opt and depoliticize grassroots movements, channeling energy into court battles rather than broader political or economic struggles. - Rights are insufficient for addressing systemic problems because they operate within the very frameworks that sustain those problems. - - **5. Alternatives to Rights Discourse** - Tushnet advocates for **moving beyond rights discourse** to focus on collective, structural approaches to justice: - He emphasizes the need for transformative politics that challenge the foundations of inequality rather than seeking accommodation within existing legal systems. - **Radical critiques of rights** do not reject the concept entirely but seek to reframe struggles in terms of collective empowerment, solidarity, and systemic reform. - - **6. Conclusion** - Tushnet's essay calls for a **critical reevaluation of rights** as a tool for justice. While rights can provide short-term remedies and symbolic victories, their inherent indeterminacy, individualism, and ideological functions make them inadequate for achieving true social transformation. - The essay invites scholars, activists, and policymakers to explore alternative frameworks that prioritize collective action and systemic change over the liberal ideal of individual rights. - - **Key Themes** - **Indeterminacy**: Rights are malleable and cannot dictate clear outcomes. - **Individualism**: Rights fragment collective struggles and prioritize individuals over communities. - **Legitimation of Power**: Rights discourse obscures structural inequalities and reinforces the status quo. - **Limits of Reform**: Rights-based strategies often lead to superficial or co-opted reforms. - **Towards Solidarity**: A shift from rights discourse to systemic, collective approaches is essential for meaningful social change. - This essay remains a foundational critique in CLS literature, challenging readers to rethink the role of rights in law and society. 3. **[Explain the Critical Race Theory\'s approach to the CLS\'s critique of law.]** - Critical Race Theory (CRT) emerged in the 1970s and 1980s as a response to both the successes and limitations of Critical Legal Studies (CLS). While CRT builds on CLS's critique of the law as indeterminate and as a tool for maintaining societal power hierarchies, it criticizes CLS for failing to account for the central role of race and racism in structuring legal and social systems. Kimberlé Crenshaw\'s work, particularly in **\"Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law\"**, articulates these dynamics and provides a foundation for understanding CRT\'s approach. **1. CRT\'s Critique of CLS** CRT scholars agree with CLS that the law is not neutral or objective, but they argue that CLS overlooks how racism and racial inequality are deeply embedded in legal structures. - **The Limits of CLS's Class Focus**: CLS often critiques law primarily in terms of class-based power dynamics. CRT asserts that this focus neglects how race operates as an independent and pervasive axis of oppression. - **The Failure to Address Race**: CRT critiques CLS for treating race as a secondary or derivative issue. Crenshaw emphasizes that race is not merely an extension of class struggles but a central, organizing principle in law and society. **2. Kimberlé Crenshaw: Race, Reform, and Retrenchment** In **\"Race, Reform, and Retrenchment\"**, Crenshaw critiques the limitations of liberal legal reforms and CLS's skepticism of rights discourse, highlighting the unique challenges posed by racial inequality. **A. Race and the Limits of Legal Reform** - Crenshaw examines how legal reforms aimed at racial equality, such as civil rights laws, have often been co-opted or diluted in ways that reinforce racial hierarchies. - She argues that these reforms are often framed in ways that legitimize existing structures rather than fundamentally transforming them. - Example: Antidiscrimination laws often treat racism as a matter of individual bias rather than as a systemic issue, limiting their ability to address structural inequities. **B. Reform and Retrenchment** - Crenshaw introduces the concept of \"retrenchment,\" where reforms intended to combat racism are appropriated to reinforce existing power structures. - Example: The backlash against affirmative action policies, where the principle of \"colorblindness\" is invoked to dismantle policies designed to address racial inequality. **C. Rights Discourse and Racial Justice** - Crenshaw critiques CLS's wholesale rejection of rights discourse as naive when applied to racial justice struggles. - While CLS views rights as indeterminate and often co-opted by power, Crenshaw argues that rights remain a critical tool for marginalized communities to challenge oppression and secure tangible protections. - Example: The Civil Rights Movement\'s use of legal rights, such as voting rights, to challenge systemic racism. **3. CRT's Distinct Contributions** CRT builds on CLS while addressing its gaps, offering a more nuanced critique of law\'s role in perpetuating racial inequality: **A. The Centrality of Race** - CRT places race and racism at the forefront of legal analysis, emphasizing how they shape and are shaped by legal institutions. - Unlike CLS, which often generalizes oppression, CRT highlights the specific ways legal systems uphold white supremacy. **B. Intersectionality** - Crenshaw's concept of **intersectionality** is foundational to CRT. It critiques the tendency of legal and political frameworks to treat race, gender, and class as separate categories, instead emphasizing their interconnected nature. **C. Storytelling and Counter-Narratives** - CRT emphasizes the use of storytelling to challenge dominant legal narratives and highlight the lived experiences of marginalized communities. - Example: Personal accounts of racial discrimination reveal how systemic inequities operate in ways that abstract legal doctrines often obscure. **4. CRT and CLS on Rights and Legal Reform** CRT diverges from CLS in its view of rights and reform: - While CLS is largely skeptical of rights, CRT takes a more pragmatic approach, recognizing that legal rights, though imperfect, are essential for addressing racial injustice. - CRT acknowledges the limitations of liberal legal reforms but argues that they can serve as stepping stones toward deeper structural change. **5. CRT's Approach to Indeterminacy** - CRT agrees with CLS that legal rules and doctrines are often indeterminate, but it critiques CLS for ignoring how this indeterminacy is manipulated to reinforce racial hierarchies. - Example: In cases of police violence, legal standards such as \"reasonable force\" are applied inconsistently, often to shield officers from accountability in ways that disproportionately harm communities of color. **WEEK 10 = What is the rule of law?** 1. **[Explain the distinction between formal and substantive conception of the rule of law.]** 1. **Core Focus**: - Formal theories prioritize the **sources of law** (proper authority) and the **form of legality** (characteristics like prospectivity, clarity, and generality). - They do **not concern themselves with the content** or moral quality of the laws. - **Rule by Law**: - The government must act through law, treating law as an instrument of power. - This concept is compatible with authoritarian or non-democratic regimes. - **Critique**: It deviates from traditional notions of the rule of law as a limitation on government power and risks becoming an empty concept since every modern state acts through law. - **Formal Legality**: - The rule of law serves as a **formal constraint** on power, requiring governments to act in accordance with the law\'s form, even if the content is morally neutral. - **Requirements for Laws**: - Sufficiently general. - Publicly promulgated. - Prospective (not retroactive). - Clear and intelligible. - Free of contradictions. - Consistent over time. - Possible to obey. - Administered in accordance with their apparent meaning. - **Advantages**: - Enhances autonomy by providing individuals with predictable rules for planning their actions. - **Critiques**: - **Neutrality**: It does not ensure protection of fundamental rights or dictate how laws should be made. - **Deviates from tradition**: A government can enact oppressive laws, as long as they comply with formal criteria. - **Joseph Raz\'s Comparison**: - Raz likened the rule of law to a **sharp knife**: a knife is excellent for its purpose regardless of how it is used, just as the rule of law ensures procedural legality without guaranteeing moral outcomes. 2. **Formal Legality + Democracy**: - Builds on formal legality but adds that the **content of the law must result from a democratic process**. - **Critiques**: - Still substantively empty: a democratic process does not guarantee just or fair outcomes (e.g., laws reflecting majority oppression). 1. **Core Focus**: - Substantive theories add **requirements concerning the law\'s content**, connecting the rule of law to human rights and justice. - They emphasize a **necessary relationship between the rule of law and human rights**. 1. **Individual Rights Theory (Liberal Substantive Conception)**: - No distinction between the rule of law and justice. - The rule of law requires laws to align with **fundamental moral rights**. - **Key Idea**: Rule of law = formal legality + democracy + individual rights (specifically civil and political rights). - **Critiques**: - Risk of being anti-democratic, as it allows unelected judges to shape laws based on abstract principles rather than democratic consensus. 2. **Dignity Theory of the Rule of Law**: - Similar to the individual rights theory but centers on the more **elusive concept of dignity** rather than personal liberty. 3. **Welfarist (Social-Democratic) Conception of the Rule of Law**: - Integrates social welfare rights into the rule of law. - Focus: Rights like education, healthcare, and freedom from poverty are essential for meaningful freedoms. - Examples: - Freedom of expression is meaningless if one is illiterate. - Voting rights are less effective if the electorate is uneducated. - Freedom from government interference means little if one is starving. - **Critique**: Overloads the rule of law with too many elements, potentially making it unworkable. 1. **Formal Theories**: - Focus on the **procedural integrity** of laws without moral considerations. - Strengths: Ensures **predictability**, limits government discretion, and protects against arbitrariness. - Weakness: Can lead to morally neutral or even oppressive laws (e.g., apartheid). 2. **Substantive Theories**: - Integrate **moral values and justice** into the rule of law, ensuring laws promote fairness and human rights. - Strengths: Aligns the law with societal values and human dignity. - Weakness: Risks undermining **neutrality and objectivity**, as moral principles can be contested and politicized. 3. **Interplay**: - **Complementarity**: Formal legality ensures stable frameworks, while substantive values provide moral direction. - **Tension**: Striking a balance is challenging, as prioritizing one can undermine the other. - **Rule-Skepticism**: Challenges the notion that legal rules are determinative or objective, emphasizing the discretion involved in interpretation and application. - **Fact-Skepticism**: Questions whether facts can be objectively established in legal contexts, highlighting the influence of bias and interpretation in fact-finding. - **Relevance**: Both skepticism forms critique the formalist idea of clear, determinate laws, bolstering substantive arguments that laws must consider social realities and justice. 2. Explain an important critique of the substantive conception of the rule of law that ties that concept to the protection of private property and the defense of the need to combine the rule of law with democratic decision-making. Jeremy Waldron critiques substantive conceptions of the rule of law for muddling political discourse and undermining democratic decision-making. His arguments can be understood through his defense of a **formal conception of the rule of law**, which focuses on procedural clarity, generality, and predictability, rather than embedding specific moral or political values into the concept. 1. **\"Rule of Law as a Catch-All\"**: - Waldron argues that substantive theories attempt to pack every favored moral or political value into the rule of law, leading to conceptual confusion. - If the rule of law is used to endorse values such as individual rights, equality, property protection, or social welfare, it risks becoming **so expansive that it means everything and nothing**. 2. **Critique of Neoliberal Substantive Theories**: - Waldron specifically criticizes the **neoliberal substantive conception**, which defines the rule of law primarily in terms of protecting property rights for free-market participants. - He sees this as a **cynical abuse** of the rule of law's ideal, as it prioritizes the interests of certain economic groups over broader societal concerns. - **Example**: The disappointment of liquor store owners who lose their market advantage due to licensing changes. Waldron argues that viewing this as a failure of the rule of law stretches its meaning unnecessarily. 3. **Democratic Tensions**: - Waldron contends that substantive conceptions undermine democratic processes by imposing rigid, judge-driven interpretations of laws, particularly when tied to controversial values like free-market property rights. - **Core Issue**: Who decides what values are embedded in the rule of law? For Waldron, such decisions belong to the democratic collective, not unelected judges or theorists. **The Separation Thesis** Waldron emphasizes the **separation thesis**, which maintains a distinction between the rule of law and other political or moral ideals: 1. **Formal and Substantive Distinction**: - **Formal Rule of Law**: Concerned with **process**---laws must be clear, general, publicly known, and stable. - **Substantive Rule of Law**: Includes requirements about the **content** of the laws, such as their alignment with moral or political values like equality or social justice. 2. **No Necessary Connection**: - Waldron argues there is no inherent link between the rule of law and specific values like human rights or property protections. - For example, even authoritarian regimes can meet formal rule of law standards without being democratic or just. **Flexibility and the Importance of Legislative Change** 1. **Room for Legal Change**: - Substantive theories often resist legislative changes by embedding specific moral ideals into the rule of law. Waldron argues this stifles **flexibility**, which is essential in democratic governance. - He highlights that **legislation**---though often criticized for its retroactive or rapid nature---provides a vital mechanism for adapting to evolving societal needs. 2. **Political Judgments Belong to the People**: - Whether a law should be changed or maintained is a matter of **political judgment**, which should be resolved democratically rather than through fixed substantive criteria imposed by theorists or judges. **WEEK 11 = what is democracy?** 1. **[Explain the concept of constituent power and compare it to other conceptions of sovereignty;  ]** **Concept of Constituent Power and Comparison with Sovereignty** - **Constituent power** refers to the ability of the people to establish a constitutional order. - It reinterprets sovereignty as the **power to found, constitute, and create** rather than as a **commanding power** (as per Andreas Kalyvas). - Rooted in **popular sovereignty**, constituent power embodies the democratic idea that the highest norms of a legal system originate from the **general will** of the people. 1. **Productivity**: - Constituent power is **creative and foundational**, producing the highest legal norms (e.g., the constitution). - It reflects a **bottom-up approach**, where the people act as a sovereign collective to create the legal and political order, contrasting with **top-down command structures**. 2. **Revolutionary Character**: - Constituent power exists **outside the law**, as it is not authorized by the existing or new constitutional framework. - It operates in moments of rupture, challenging the old order and existing norms, and is not validated by the system it aims to replace. -- -- -- -- - **Modern Constitutionalism**: Balances the interaction between **constituent power** (people founding the constitution) and **constituted powers** (institutions and governments operating within the constitution). - **Revolutions**: Demonstrate constituent power through the establishment of new legal orders. 2. **[Explain the conceptual difficulties (the paradox) it faces;]** **Conceptual Difficulties: The Paradox of Constituent Power** **Core Paradox** - **Ambivalent Relationship to Law**: Constituent power exists both **outside** the law (as the origin of legal orders) and **inside** the law (as the source of constituted powers). - **The Vicious Circle**: - Founding a legal system requires an **authorizing framework**, yet constituent power itself has no prior legal authorization. - How can the founding act be legitimate if there are no pre-existing norms to validate it? **Kelsen vs. Schmitt on Constituent Power** - **Hans Kelsen**: - Focused on the **legal formalism** of a basic norm or \"Grundnorm\" that must be presupposed to ground the first constitution. - Critiques Schmitt's view of the people as an empirical unity, emphasizing instead the **legal, constituted identity** of individuals participating in democracy (e.g., voting, electing representatives). - **Carl Schmitt**: - Views constituent power as **extra-legal**, where \"the people\" are a **political unity**, not reducible to legal constructs. - Problematically ties unity to **racial or exclusionary criteria**, which risks undemocratic outcomes. **Challenges in Identifying \"The People\"** - Without legal authorization, it is unclear how to determine whether an action reflects the **will of the people** or merely the will of a **vocal minority**. - Established constitutional frameworks validate collective acts, but these frameworks themselves depend on an original extra-legal act of constituent power. **Implications for Democracy** - **Democracy's Double Role**: - Constituent power represents democracy's founding moment, yet democratic institutions themselves operate within a **constituted legal order**. - This creates a paradox where democracy seems to be both **outside** the law (as its origin) and **inside** the law (as its operational framework). 3. Analyze an example case with the concept of constituent power. **WEEK 12 = Rule of law, democracy, globalization** 1. **1. Philosophical Concept of Representation** - Representation involves someone **speaking for a collective** and articulating its interests. - It includes three elements: 1. **The Representative**: The individual or group acting on behalf of others. 2. **The Represented**: The collective being spoken for. 3. **The Attribute**: The account or identity ascribed to the collective by the representative. - The collective (\"the people\") is only present **indirectly**, through its representatives. **2. Collective Identity and Representation** - **Necessity of Representation**: - A collective does not exist as a unified \"we\" before being represented. - Someone must take the initiative to define the collective (\"we, the people\") and articulate its interests. - **Collective Acts**: Individual or group actions are **ascribed to the collective** when representation occurs. **3. The Two Conceptions of Representation** **First Conception: Representation as Repetition (Mirroring Reality)** - Representation mirrors a pre-existing, homogeneous collective (e.g., \"the people of the US\"). - **Problems**: - Assumes \"the people\" already exists as a unified whole. - Risks undemocratic outcomes if a minority defines the identity of the people. - Leaves no room to question or contest what \"the people\" truly represents. **Second Conception: Representation as Production (Creating Reality)** - Representation constructs the collective it represents (e.g., before the constitution, there was no unified \"we, the people\"). - **Problems**: - How can this representation be authoritative if there is no pre-existing collective to authorize it? - Risks becoming undemocratic if it imposes an identity without recognition. **Combined Approach** - Representation must precede the collective, but its legitimacy depends on **subsequent recognition**. - Collective identity is always an **open, contested political question**, shaped by representation and struggles for inclusion. **4. Constituent Power and the Paradox of Representation** - **Constituent Power**: The act of collective self-legislation (\"We, the people, do ordain\"). - **Paradox**: - Who authorizes the creation of democratic institutions? - Representatives (e.g., the Founding Fathers) act without prior authorization from a collective. - Legitimacy is **retroactive**: Representation becomes valid when individuals identify with the collective and exercise rights granted by the new framework. - This legitimacy is always contestable. **5. Struggles for Representation** - Representation is **exclusive and contested**: - Historical exclusions (e.g., women, African Americans, Indigenous peoples). - Questions of inclusion remain central: \"Who belongs to \'the people\'?\" - Representation and identity are subject to continuous debate and evolution. **6. Implications for Liberal Democracy** - A collective must be represented, but no single form of representation is definitive. - **Constitutionalism and Pluralism**: - Structures like elections, separation of powers, and fundamental rights ensure representation remains contestable and diverse. - No one has a monopoly on defining the collective will. - **Democratic Openness**: The collective identity and representation of \"the people\" must always remain an open question. **Conclusion** The philosophical concept of representation is essential because \"the people\" as a political collective does not exist without someone articulating its identity and interests. Representation allows for the emergence of a collective voice, but this process is inherently contested and subject to continuous negotiation. In liberal democracies, constitutional mechanisms ensure that representation remains pluralistic and open to challenge 2. - **Collective Identity Formation**: A political collective, \"the people,\" does not preexist its representation. It requires spokespersons who define its identity and articulate its interests. - **Pluralism and Contestability**: Liberal democracy acknowledges that there is no single, definitive way to represent \"the people.\" Representation is always partial and contestable. - Liberal democracies are built on frameworks, such as **constitutions**, that embody the representation of the collective (\"We, the people\"). - These structures ensure representation remains subject to checks, balances, and periodic renewal to prevent monopolization of power. - Examples of protective mechanisms: - **Periodic elections**: Enable citizens to choose representatives and contest their claims to speak for \"the people.\" - **Separation of powers**: Prevents concentration of authority in a single branch or leader. - **Independent judiciary**: Ensures decisions align with constitutional principles and fundamental rights. - Representation precedes the collective, but legitimacy depends on subsequent **recognition** by the people. - Institutions like a constitution derive their legitimacy retroactively, as individuals recognize themselves as members of \"the people\" by exercising rights granted by those institutions. - However, legitimacy is always **contestable**, reflecting the **open-ended nature** of liberal democracy. - Representation historically excluded certain groups (e.g., women, Indigenous peoples, African Americans). - Liberal democracy must address questions of inclusion: - **Who belongs to \"the people\"?** - **Who can legitimately represent the collective?** - **What are the collective\'s interests?** - **Struggles for inclusion** are central to ensuring liberal democracy remains adaptive and representative of evolving identities. - Liberal democracy guards against the risks of authoritarian or monopolistic representation: - **Populist claims**: Leaders asserting exclusive knowledge of \"the people's will\" undermine pluralism and democratic norms. - **Fixed identity claims**: Representation that assumes \"the people\" has a single, unchanging identity is antithetical to liberal democracy's openness. - By protecting **political pluralism**, liberal democracy ensures no single representative or ideology can permanently dominate the definition of \"the people.\" - **Dynamic Collective Identity**: Liberal democracy recognizes that \"the people\" is not a static entity. Collective identity evolves through debate, contestation, and inclusion. - **Continuous Legitimacy Question**: Representation, and the institutions that embody it, are always subject to critique and reform, ensuring the system stays responsive to changing societal needs. - **Democratic Paradox**: While representation is essential, it is never final; liberal democracy thrives on the tension between authority and contestability. 3.