REAL Legal Theory Midterm Study Guide PDF

Global law: 1) Affects more than one nation 2) Much more than just “international law” Includes non-state actors and private law ○ Things like Meta’s terms and conditions for users 3) NOT necessarily universal; might even go against universal values Ex....

Global law: 1) Affects more than one nation 2) Much more than just “international law” Includes non-state actors and private law ○ Things like Meta’s terms and conditions for users 3) NOT necessarily universal; might even go against universal values Ex.) Globalization may have increased the poverty gap Whereas universal law applies to everyone 4) Global leal theory = “a theoretical production that is globally recognized” Elements of a Truth Claim / Speech: Authority: You need to believe in your own claim Correspondence Theory of Truth: What is stated corresponds to the reality that can be observed Coherent Theory of Truth: All parts of a claim have to come together and not contradict each other Consensus Theory of Truth: You need to have other academic sources supporting your claim ○ Basically cite your sources ○ If citing a text / charter, mention where it is found (which article) Normal VS Academic Speech: Normal speech: ○ Protected by the freedom of speech Academic speech: ○ Protected by academic freedom (in some constitutions) ○ More protected than normal speech (in some constitutions) In the German constitution, academic speech can’t be limited ○ Comes with an enhanced claim to truth The claim maker is a master in the discipline The claim is developed according to the scientific method Includes the 4 elements of a truth claim Legal Theories: Kantianism / Universalism: Ways to achieve perpetual peace (definite articles): ○ 1) Peace treaties must NOT prepare for future wars Cessation of hostilities ≠ peace ○ 2) States are NOT property No conquering, purchasing, or inheriting states ○ 3) Eventually abolish standing armies  Replace them with volunteer armies (militias) instead ○ 4) No high national debts that would force the state to go to war Ex.) Nazi Germany’s pre-war deficit spending forced it to invade Poland ○ 5) No interfering in other states’ internal matters BUT joining one side of a civil war = ok ○ 6) No dishonorable war strategies (like war crimes, espionage, sabotage, etc.) Because these can’t just be stopped and carried on into peacetime Ways to achieve perpetual peace (indefinite articles): ○ 1) Every country must be republican Because going to war will require the citizens’ consent ○ 2) Federation of free states But NOT a “world state” ○ 3) Universal hospitality (commerce) Because trade will prevent war Perpetual peace ISN’T just an empty idea because: ○ 1) Everyone has the DUTY to strive for it ○ 2) We have good grounds for hope of coming ever closer to it (although it can never be reached) Kant’s Categorical Imperative: ○ Treat other people as ENDS, not MEANS Similar to Jesus’s teachings: “Love your neighbor as you love yourself” It’s the act of seeing other people as individuals who have their own lives, too, and not just using them to get something ○ No hiring mercenaries Because that would be treating them as “means” instead of “ends” Realism / Particularism: Carl Schmitt’s 4 main ideas: ○ 1) There needs to be a strong leader who can make decisions Otherwise, in states of emergency, nothing will get done due to endless bickering in parliament (like what happened in the Weimar Republic’s parliament) ○ 2) A country needs internal unity to run properly Schmitt thinks that immigration ruins a country’s unity (homogeneity) ○ 3) Peace and order are always precarious on the international level  There can be peace an order in a strong, homogenous nation, but it will always be precarious on the international level ○ 4) Aggressiveness brings innovation “Move fast and break things” - Mark Zuckerberg Positivism (from lectures): Positivism as a broad concept: Types of positivism: ○ Philosophical ○ Scienfiic ○ Logical ○ Sociological ○ Legal Relies heavily on science, knowledge, logic, methodology, etc. Refuses any time of metaphysical approach ○ Abstract ideas like Plato’s floating ideas can’t be analyzed using scientific methodology, so they don’t work Legal Positivism: Only laws that are WRITTEN DOWN can be analyzed using scientific methodology ○ This includes common law when there are precedent decisions (that are written down) ○ Legal positivism supports positum (written law) Morality is SEPARATED FROM LAW ○ Because morality can’t be proven scientifically (objectively) VALIDITY of laws depends on objective verification, NOT morality ○ Laws are valid when they are issued by a legitimate authority FORM > CONTENT (OBJECT) ○ The content of the law isn’t even considered as an object of discussion Ontological (NOT Deontological) ○ “Law as it is”, NOT “law as it ought to be” Ontological = law as it is Deontological = law as it ought to be The legal system is a CLOSED logical system Positivists SUSPEND morality but don’t suppress it Ex.) Adolf Eichmann’s actions were legal, so they can’t be judged on legality, but they can be judged morally David Hume’s (Scottish UTILITARIAN): ○ Champion of empiricism ○ Empiricism: Everything that can be observed and experimented is true Things are true for as many times as you experiment it  Gravity exists in the 1000 times that something drops, but the 1001st time is unknown An abstract concept can’t be experimented, so it can’t be verified BUT it can’t be falsified, either ○ Morality is based on FEELINGS (sentiments), NOT reason Empiricism is the attempt to extract some general observations with regard to these sentiments ○ Utilitarianism: An action is good ONLY IF it maximizes the benefits for the largest number of people A written law is more accessible and more transparent, thus it’s more beneficial for the largest number of people Trolley Problem: Pull the lever to kill 1 person and save 5 people OR not do anything and let 5 people die while saving 1 person Utilitarianism: Ontological approach It’s a matter of agency ○ Actively killing 1 OR passively killing 5? Kantian: Deontological approach ○ Human lives can’t be counted ○ We must consider people as ENDS, not MEANS Pulling the lever is considering the 1 person as a means of saving the 5 people (ends) Unethical according to Kant ○ Contractarianism: Law is sourced by an agreement among people about how to behave Hume isn’t exactly a contractarian ○ Conventionalism: Law is a product of a social agreement by which people set down the goals of their society According to Hume, a proper system of law needs 2 characteristics: Convenience: Law must aim for the common good Generality: Laws must be general (opposite of common law) ○ Aligns with CIVIL LAW Jeremy Bentham (Utilitarian): ○ Lived during the great revolutions in Europe ○ OPPOSED Common Law AND Natural Law Considered it irrational, metaphysical, ambiguous, fictitious, arbitrary, etc. Because it relies on judges as creators of law, and judges can be highly discretional / arbitrary ○ Advocated for determinacy, codification, and less interpretation Determinacy: Laws must be DETERMINED  Codification: To be determined, laws must be codified written down in ONE piece of legislation) Grouping laws down in one piece of legislation makes them determined because we no longer need to look at specific cases and determine which ones are superior to which ones ○ Eventually, Napoleon created the Napoleonic Code Judges’ interpretive decisions will be limited Codes are inherently RATIONAL ○ Because they are organized and are public, allowing normal people to debate about them ○ “Positivizing” the law will lead to the most benefits for the most people There needs to be a “science of legislation” Science of Legislation by Gaetano Filangieri ○ We need to know to legislate ○ Law can be divided into 2 parts: Imperative Commands Aka criminal law ○ You “MUST” do something ○ You “MUST NOT” do something Civil Law It’s a permissive law ○ You “CAN” buy a house But you’re not forced to do it F. K. von Savigny (from Alsace-Lorraine): ○ Napoleon has just made the Napoleonic Code So Germany started discussing the possibility of codifying a German law for all the Germans HOWEVER, Germany wasn’t a unified nation-state yet Thibaut (?) suggested setting common rules to facilitate trade between German states F. K. von Savigny said it’s impossible because the German states were too different to adopt a common law France had the same problem (it was massive) There were written laws in the south and customary law in the north ○ Law comes from the Volksgeist (the spirit of the people) It comes from specific cultures, traditions, customs, etc. ○ Law CANNOT be made artificially It’s spontaneous and dynamic (CAN’T be fixed) John Austin (Utilitarian - Bentham’s student): ○ Literally the strongest legal positivist Created the perfect model of legal positivism  The Province of Jurisprudence Determined ○ We have to define a perimeter around what is law Anything outside that perimeter is NOT law ○ Imperativism (Command Theory) : Law = a set of imperative commands given by an official authority Law is valid ONLY when there is an official authority that issues imperative commands Laws are INSTRUMENTS of sovereign power to subject citizens We need laws in order to control and direct behaviors ○ This is why they’re imperative commands ○ Science of Law: Law must be analyzed scientifically Because it’s the most neutral method ○ Taxonomy of Law: Created to determine the scope of the analysis Religious Rules: Outside the scope of law ✅ Human Laws: Positive Laws ( object of analysis): ❌ ○ Issued by official authorities Positive Morality (etiquette; NOT an object of analysis): ○ NOT issued by official authorities ○ They are rules of politeness that direct behaviors ○ Proper Law: Law = commands of the sovereign that have ❌ sanctions (penalties) to enforce them Customary, constitutional, and international rules = NOT laws Command ⇒ Probability of a sanction ⇒ Obedience This is why laws are instruments of behavioral control Validity assessed based on whether the authority was legitimate, NOT whether laws were moral Main argument against positivists: They are “excavating” the law ○ Just looking at the outside without asking why Positivists say that they can’t analyze the moral reasons for laws They can only analyze the legality of laws Bentham VS Austin: ○ Bentham: Radical ○ Austin: Conservative & more rigid ○ Sovereignty: Austin: Society ⇒ Habitual obedience ⇒ Sovereign ⇒ No habit of obedience ⇒ No superior Sovereignty = the ability to impose positive law AND enforce it Bentham: Political society = Subjects (in habit of obedience to a sovereign) + Governor  Sovereignty = related to social aspects and people ○ NOT just legality; also legitimacy and popular support Law / Morality: Conscientious objectors = subjects who refuse to obey the certain “dictates” of positive law due to moral objections ○ Some might have public sympathy (majority support) Ex.) People who reject conscription due to religious reasons ○ Others don’t have so much public sympathy (no majority support) Ex.) Medical practitioners who refuse to perform abortion Majoritarian principle: Some laws are influenced by public opinion ○ Ex.) Nazi Germany applied the “living law” according to volksgeist (the spirit of the people), following the Freirechtsschule’s (school of free law) principles Freirechtsschule’s main principle (Radbruch’s idea): Laws have to be applied based on what is felt by the people (public opinion) ○ HOWEVER, the minority can be opposed to laws designed by the public majority Types of morality: ○ Public Morality Pertains to the widespread conceptions of society as a whole Ex.) Environmental considerations (not related to religion) Doesn’t refer to religious beliefs ○ Private Morality Pertains only to individuals, NOT society Ex.) Vegetarianism ○ Vegetarians might support laws that ban killing animals, but this doesn’t have widespread public support Is it the Law’s Business? (to dictate rules about life and aspects of morality) ○ Ethical State: A state that tries to control private morality Opposite of Libertarian States ○ The right to life: abortion? ○ The right to due: euthanasia? ○ The right to self-determination: assisted suicide? According to Nature: ○ Should law reflect human nature (the attitude of human beings)? ○ Trolley Problem: Utilitarians (Bentham, Hume, etc.) would pull the lever to kill 1 person and save 5 people Deontologists / Kantians (Kant, Arendt) WOULDN’T pull the lever Because humans should be seen as ends, not means We can’t calculate the value of human life  ○ Anna Arendt: When people become expendable (when some people can be sacrificed for others, this is the beginning of evil ○ After 9/11, the Bundesrat passed a law where the German air force was obliged to shoot down planes that were confirmed to be hijacked Unconstitutional? If human dignity is untouchable, then we can’t say that the lives of people on the plane are less important than the lives of people on the ground Positivism (from the optional readings): Positivism = the separation of morality and law ○ Formal law ○ Law as it IS, not as it ought to be Even morally unjust laws are still laws Hart’s clarification: Just because a rule violates moral standards does not mean it is not a rule of law, and just because a rule is morally desirable does not mean it is automatically law. Positivism has been misinterpreted by many thinkers as saying that morality isn’t important, when in reality, it only says that law and morality should be SEPARATED ○ Positivist Solution: Openly criticizing unjust laws Nevertheless also understanding their unique legal validity Gray: Laws = rules made by judges ○ Statutes are merely sources of law UNTIL they are made into laws through judicial interpretation and application John Austin: Imperative / Command Theory of Law: Laws = commands issued by a sovereign backed by THREATS ○ Aka “habitual obedience” ○ H.L.A. Hart’s criticism against this theory: 1) Ignores important aspects like rules of procedure in modern legislative bodies 2) Fails to account for the diversity of laws Some laws, like criminal laws, function as commands (they require obedience) BUT other laws provide facilities for individuals to create rights and duties (e.g., contract law) 3) Salmond and Hägerström argued that this theory IGNORES rights  If laws are just commands to be obeyed, then individuals have no rights Hart’s counter-argument: ○ Laws are part of a broader system of rules, which include FUNDAMENTAL RULES (establishing how laws are made, interpreted, and applied) Criticism by the American Realists: ○ Criticized formalism in the judicial process, which viewed judicial decisions as logically deduced from legal rules, without recognizing the role of judicial discretion in applying laws to new or unclear cases Criticism by Radbruch: ○ Radbruch used to be a positivist but changed his mind after he saw how the Nazis exploited people’s habitual obedience to commit atrocities ○ Argued that positivism allowed the atrocities to happen ○ Laws that violate fundamental rights should be DENOUNCED This principle was used by German courts AFTER WW2 to issue retrospective punishments Ex.) Case of the Nazi informer ○ Hart’s response: The right response to unjust laws is resisting them on moral grounds WHILE acknowledging their legality (aka the utilitarian approach) Benefits: ○ Clarity ○ Rational critique ○ Helps avoid anarchism and blind obedience to law Anarchism: "This ought NOT to be the law, therefore it IS NOT the law" Blind obedience: "This IS the law, therefore it OUGHT to be the law" Natural Law (from the Lectures): Classic Natural Law: Cicero’s Ideas: ○ True law is set by nature and we can understand it by reason ○ It’s universal, unchanging, and everlasting ○ It’s a sin to try to alter this law OR to repeal any part of it OR to abolish it entirely ○ We can’t be freed by natural law’s obligations by the senate or people ○ Injustice = trying to stray away from / take advantage of this law  ○ Whoever is disobedient will suffer the worst penalties (by nature if not by man) because he will be disobeying human nature Plato’s ideas (very abstract; utopian): ○ Universals: Abstract concepts that stand alone, not related or applied to anything Ante rem (“before things”) Ex.) Beauty ○ It’s a broad, abstract concept ○ Ideas (visible things) = pure forms Ex.) A specific landscape that looks beautiful ○ Human justice is the shadow of ideal justice ○ Only what conforms to “ideal justice” and tries to replicate it is perfectly just ○ We have to make the best possible approximate of ideal justice into human concepts Laws must also adapt to the changing circumstances of human life ○ Plato wants philosophers to be leaders of states because they’re the only ones who can grasp these abstract concepts Cicero’s interpretation of Plato’s ideas: ○ There is only ONE essential justice that cements society and ONE law that establishes this justice We can’t invent it; we have to comply with it It’s just there; “before things” Human laws can never be absolutely just Thus, humans should be inspired by this natural law Aristotle’s ideas (more pragmatic): ○ Just by nature ≠ just by law ○ Legal / moral responsibility ○ AGENCY: Humans are agents with free will who take actions and CHOOSE how to act A true agent is free to choose from a series of actions He believes that there is no limitation to agency / free will Because we have different moral / legal alternatives to choose from ○ Aristotle is interested in seeing how humans enact justice ○ Humans always act in order to obtain things that they think are “GOOD” ○ Humans are SOCIAL beings Only live within organized societies Thus, laws are required People who don’t belong to any states (communities) don’t need laws  ○ Humans are RATIONAL beings Humans have the power of speech Allows humans to rationally distinguish good and evil ○ Humans are naturally endowed with reason (EUDAEMONIA), so they have to fulfill reason ○ General justice (natural) ≠ particular justice (human justice) General justice is too particular to be useful We can only analyze justice CASE BY CASE ○ Political justice = natural justice + conventional justice ○ Values discovery by reason EUDAEMONIA = justice Things in Common Between Plato and Aristotle’s Ideas (Both Natural Law): ○ 1) Nature is the giver of laws ○ 2) To be just, laws must comply to the values of nature St. Thomas Aquinas’s Ideas: ○ Tries to combine Aristotle’s ideas with Catholic ideas ○ We need to separate human laws and divine laws “Give to Caesar what belongs to Caesar and give to God what belongs to God” ○ 1) Eternal Law: God’s perfect plan (rational but not fully knowable by humans) ○ 2) Natural Law: Immutable laws that govern the universe Ex.) Gravity ○ 3) Divine Law: A set of moral precepts from THE BIBLE ○ 4) Human Law: Set by political, civil authorities Also directs human behaviors ○ All 4 of these laws should be consistent ○ Natural law / Practical rationality Reason is a gift given by God Natural law will reveal what is practically rational, which will lead to the fulfillment of common interests ○ Reasonable / unreasonable Reasonable = good; unreasonable = bad ○ Natural = Reasonable = Right Reasonable things comply with the natural order ○ Humans have the natural DUTY to seek the common good ○ Good > Right The “right” solution isn’t the absolutely good one The “rational” (“good”) solution should be chosen even though it isn’t always exactly right ○ What is good? Summa Theologicae  To understand if something is good, we need to look at: 1) Objects 2) Ends 3) Circumstances 4) Intentions ○ A good action needs to have right motivations When ALL 4 of these things are good, the action is good ○ Evil = wrong Because evil doesn’t comply with the natural order (isn’t rational) ○ What if a human law is UNJUST (doesn’t comply with the natural order)? Lex iniusta non est lex: “An unjust law isn’t law” People have the DUTY to disobey blatantly unjust / immoral laws ○ Adolf Eichmann: A man who defended his actions by saying that he simply complied with the law ○ In Summa Theologiae: Just laws: 1) Are aimed at the common good 2) Come from a valid authority that: ○ Acts within its power limits ○ Treats each subject equally Unjust laws: 1) Are contrary to the common good 2) Come from an authority that: ○ Doesn’t act within its power limits ○ Doesn’t treat each subject equally 3) MUST NOT be obeyed Superior human authorities shouldn’t be obeyed in all things If the emperor’s and God’s commands contradict, obey God and disobey the emperor Quotes Seneca’s ideas: Even if a slave’s body belongs to his master, his spirit ISN’T ○ St. Thomas was a Dominican (supported the pope; opposed the emperor) Said that the emperor didn’t have the right to bind his subjects’ conscience Modern Natural Law (16th Century): Hugo Grotius (Dutch lawyer) ○ Considered the father of international law AND maritime law  ○ Context of his time period: Westphalian Model of International Relations (equally sovereign states; no superior authority to enforce treaties) ○ “De iure belli ac pacis” (On the Law of War and Peace) Grotius says NATURAL LAW governs international relations and binds treaties When kings sign a treaty, they naturally KNOW that they have to respect it even if there’s no superior authority If one of them violates the treaty (which is intrinsically wrong), the other can go to war with him ○ In essence, their peers enforce the treaties ○ Institutions should be inspired by the model of nature ○ Natural law should be secularized Nature > God Origins of Civil Law and Common Law: ○ Middle Ages: Rediscovery of Roman laws (Corpus Iuris Civilis - Justinian) ○ Jurists and law scholars developed new principles that were universal all over Europe (including Britain) Jus Commune (Common Law) was developed ○ Eventually, Continental Europe decided to codify the Jus Commune to make it more applicable This was the end of universal laws; each nation developed its own codified laws Principle source of law: Statutes Judges are “mouths of the law” ○ They can’t create their own laws ○ HOWEVER, Britain (and the Anglosphere) still uses Common Law The basic principles of Common Law are based on cases in the past (like Supreme Court cases in the US) The law is dynamic and needs to be showed through judges’ cases (judges can essential create laws) “Unwritten” constitutions are informed by natural law William Blackstone (organizer of English laws): ○ Acknowledges the role of natural law BUT also points out the importance of human made laws ○ Tried to reorganize the principles of COMMON LAW Did this as a private scholar NOT under government orders ○ Commentaries of the Laws of England The English Constitution is INFORMED BY NATURAL LAW Ex.) There’s no law that the English parliament needs to be re-elected every 5 years, but it happens! ○ If they tried to change it, there would be a revolution  Even though his works are private, informal sources, they are still quoted a lot because they efficiently reorganized common law L.L. Fuller: Wants to separate religious beliefs / divine support from natural law Wants to prove that law is nevertheless INFORMED by morality and CAN’T be separated from it Characteristics that make laws just: ○ “Principles of Legality" (moral standards under natural law) Inner Morality of Law: (not about the content of the law, but its inner nature) 1) Sufficient generality ○ Laws must be general enough to be interpreted 2) Public promulgation ○ Laws must be transparent 3) Prospectivity ○ Laws must NOT be applied retrospectively People can’t be punished for past actions using present laws 4) Minimal clarity and intelligibility ○ People should be able to understand laws and comply with them Morality of Aspiration: 1) Non-contradiction ○ Laws must not be contradictory 2) Relative constancy ○ Laws must not be changed too frequently 3) Possibility of compliance ○ Laws must impose things that are POSSIBLE 4) Congruence: Declared rules / official action ○ The government’s actions must be CONSISTENT with its laws ○ Without these principles, laws would be inherently unjust H.L.A. Hart’s Objection: These principles AREN’T moral principles; they’re principles of means-ends efficiency ○ He accuses Fuller of trying to turn positive law to natural law ○ Hart says that the Inner Morality of Law is based on the form of the law, not its contents Critiques: People say that applying natural law leads to discretion and arbitrariness ○ Relativism ○ Utilitarianism ○ Communitarianism / socialism ○ Critical theory  ○ Legal positivism Positivization of Natural Law: Natural Law as a Constitutional Foundation: ○ Declaration of Independence (1776) “...to which the Laws of Nature and of Nature’s God entitle them…” “...all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” All of this is an adaption of John Locke’s ideas ○ Some rights are natural (endowed by God) & superior to the government Governments are responsible for realizing these rights; they become illegitimate when they fail to realize these rights ○ France’s Declaration of the Rights of Man and of the Citizen (1789) “Men are born and remain free and equal in rights” “The goal of any political association is the conservation of [these rights]...” “The law is the expression of the general will” The people will decide their regime People’s sovereignty expresses itself through the law The Fall of Natural Law Theories: ○ Walt Whitman’s Poem: Leaves of Grass Attacks President Buchanan for not learning the politics of nature Nature remains the teacher for governors A state’s objective is to fulfill nature’s objectives ○ Enlightenment and Romanticism Both ideas were FOR legal positivism (AGAINST natural law) Enlightenment: Sees law as a science Romanticism: Sees law moments of nationalist movements ○ Legal positivism The parliament is the “protagonist” (center of the state) “Through its representatives, the people sympathized the will of the nation, transforming it into law” - Prof. Brozetti Statute law is the only superior source of legality Because the law is the answer to what was debated in parliament In the past, the constitution was flexible (not rigid) and could be amended as any other law, which allowed for unethical actions Today, constitutions are rigid and much harder to amend ○ Anti-moralism  ○ Skepticism Post-WW2 Revival of Natural Law Theories: ○ Universal Declaration of Human Rights (1948) Article 1: “...human rights…conscience of mankind…” Human rights should be protected by the rule of law In the end, both natural law and legal positivism claim to be superior, but it all depends on cultural, geographical, and historical contexts in each country ○ Ex.) Polygamy is illegal in some countries but legal in others ○ Uncontacted Tribes: People live in organized societies completely isolated from the rest of the world Should we barge into their societies and transform them completely in the name of universal rights? Or should we leave them alone since they express a different assumption of natural law? If so, can we actually claim that human rights are universal? Natural Law (from the optional readings): Positivism VS Natural Law (from lectures): The Ultimate Divide: A Matter of Ends: Kantianism: How a situation OUGHT to be ○ Intentionality: Actions are judged based on their compliance with duties Duty = Compliance with ethical law (Kant’s categorical imperative) An action must be good “a priori” (even before it’s performed) ○ It’s an unconditional and universal ethical system ○ Formal, deontological, and anti-sentimentalistic Utilitarianism: How a situation IS ○ Consequentialism: Good is identified with utility (how beneficial the consequences are) An action is good if it leads to the most happiness for the most people Happiness = the presence of pleasure and the absence of pain Legal Positivism VS Natural Law (Arguments): Legal Positivism: Applying the law AS IT IS ○ When laws are written down, they are certain and don’t need to be discussed ○ More pragmatic and rational Natural Law: Applying the law as it OUGHT TO BE  ○ Allows judges to have the “creative” power of interpreting laws They come up with new laws (in a sense) Arguments Against Legal Positivism: ○ Is it truly value-free? The value is objectivized, but it isn’t removed from law ○ It’s ideological Legal positivism has been used as an instrument by radicalists throughout history Ex.) Jacobins during the French Revolution ○ Robespierre used almost the same exact wording as positive law thinkers Ex.) Bolsheviks during and after the Russian Revolution ○ Validity is NEVER neutral Positivists say that a law is valid if it’s set by a valid authority through a valid means This is still DISCRETIONARY ○ Authority ⇒ Discretion ○ Law / Morality: How to fill the gap? It’s necessary to evaluate the laws “a priori” Famous Thinkers: Positivists: David Hume (Utilitarian): Jeremy Bentham (Utilitarian): ○ REJECTED Natural Law, claiming that it leads to intellectual confusion ○ Approach to law: "Obey punctually; censure freely" While he advocated following laws, he also believed in openly criticizing them when they were unjust This shows that the separation of law and morality DIDN’T mean accepting immoral laws without critique, but rather understanding their distinct legal validity ○ Dangers of natural law: The anarchist who says, "This ought NOT to be the law, therefore it IS NOT the law" The reactionary who argues, "This IS the law, therefore it OUGHT to be the law" ○ Acknowledges that:  Historical facts show that law and morality often influence each other (e.g., legal rules frequently mirror moral principles) Moral principles can be explicitly incorporated into a legal system (e.g., courts might be legally bound to act according to what is morally just) Even the supreme legislative power might be subject to constitutional restraints based on moral principles Constitution limiting sovereign power = ok John Austin (Utilitarian; STRONGEST positivist; more conservative than Bentham): ○ REJECTED Natural Law, claiming that it leads to intellectual confusion ○ Imperative / Command Theory of Law: Laws = commands issued by a sovereign backed by THREATS ○ Constitution limiting sovereign power = absurd ○ “Morality” refers to all uncodified standards of behavior Religious beliefs, manners, etiquette, etc. Gray (Positivist): F. K. von Savigny (Volksgeist): ○ H.L.A. Hart (SOFT Positivist): ○ NO applying laws retrospectively Wait but he also wants to apply laws retrospectively to deal with the cases of Nazi informers?! ○ Soft Positivist: Soft = Inclusive (incorporates extra-legal features into legal positivism; may include the content, merit, morality, and value of laws) 1) Acknowledges a minimal overlap between law Legal systems (not individual laws) can’t be separated from morality 2) Opens the validity of laws to things beyond legitimacy Like people’s perception of whether laws are just ○ Which determines whether they’ll obey them 3) Positive law sometimes has to rely on external elements The law sometimes REFLECTS other assumptions such as morality 4) Laws MUST have moral roots to be considered perfectly justified (relates to secondary rules) 5) The existence of laws can only be justified by their goals 6) Law is defined by the nature of society 7) Purpose of law: directing people’s behavior in society ○ OPPOSES Austin’s Imperative / Command Theory of Law BUT nevertheless says that its flaws aren’t enough to disprove Legal Positivism ○ Penumbra: Situations where it’s unclear WHICH rule to apply Ex.) A rule forbids parking vehicles in a park Do toy cars count? ○ What about bicycles? And airplanes? The core meaning of the term is clear BUT penumbral cases require judges to choose whether the rule applies Judges are effectively legislating when they apply the rule to new or ambiguous situations CAN’T use deductive reasoning to determine whether the rule applies Relies on social aims or policies The CORE meaning of laws isn’t always open to interpretation ○ Legal SYSTEMS CAN’T be separated from morality (though individual laws can) Every legal system contains some fundamental notions rooted in human nature and morality ○ Morality should be separated from law because it varies too widely between people ○ Aspects of human society: Vulnerability Approximate equality Limited altruism People are mostly selfish, not altruistic) Limited resources Resources of all kinds are limited Limited understanding and strength of will People aren’t perfect ○ These aspects are why laws are required ○ Thought experiment: Legal systems can meet the minimum standards of procedural justice while still being oppressive and morally unjust Ex.) A world where everyone has invulnerable armor and doesn’t need to eat or drink BUT don’t have the right to property ○ Hart’s Analytical methodology: Language Meanings ○ Laws use many scientific words that mean specific things in specific context Open texture (linguistic structure)  ○ Legal language is MORE OPEN to interpretation compared to language in other sciences Since positive law must be both GENERAL and ABSTRACT ○ Harder to interpret Conceptual context ○ We must also look at the CONTEXT of legal concepts being used ○ Aka looking beyond the letter of the law ○ Social Rules: Hart doesn’t deny the rejection of other normative systems BUT emphasizes that law is the only object of analysis Normative codes aside from law: Morals, etiquette, rules of games, etc. ○ These are distinguished from law by their obligation Ex.) Etiquette: Letting women enter before men Not established by law, not enforced, BUT people still feel the obligation to comply Normativity = obligation to comply ○ Meanwhile, with laws, people ARE obliged (they don’t just FEEL obliged) People are forced to comply or face punishment ○ Hart’s opinion: Law isn’t just made up of imperative commands (primary rules), it also has secondary rules Obligation rules ⇒ obligations and duties ○ Moral rules ○ Legal rules (law): Primary rules (prescriptive - Austin’s conception of commands) Imperative commands ○ Ex.) Do not steal, do not kill, act in a certain way, etc. Secondary rules (Constitutive / performative, NOT prescriptive) Rules that legitimize Austin’s primary rules Not prescriptive because they’re not addressed to subjects in order to be complied with  ○ Requires society to create some kind of status quo Rules of change ○ Legislative power Endows institutions powers to CHANGE or SET legal rules Rules of adjudication ○ Judicial (enforcement) power Endows institutions powers to JUDGE breaches of primary rules People will only consider laws as valid IF there is a judge to apply them The Rule of Recognition (presupposes the validity of the entire legal order) ○ General sense of acceptance Janus-faced Subjects are both CREATORS and RECIPIENTS of the law Legal systems can ONLY exist with society’s general obedience and acceptance (not necessarily approval) Unwritten BUT innately present in society Society CANNOT accept a system as valid without recognizing its justice ○ Duties are imposed to officials Judges aren’t proper agents because they  have no choice but to apply the law Social dimension of rules: Perception ○ Hart’s argument: There needs to be more than an imperative authority People obey because they FEEL and ACCEPT (not necessarily approve) the validity of rules They feel that these rules are just and appropriate, otherwise they won’t obey them Validity ≠ effectiveness ○ Laws are valid no matter how immoral they are IF they are accepted by society Attitude ○ Hart’s argument: SOCIETY adopts an attitude of acceptance for laws Legitimacy ○ Legal systems need secondary rules to legitimize primary rules ○ “Immoral Morality”: Combining law and morality is dangerous because there can be societies that have coherent but evil moral standards ○ Criticism against Hart: His penumbra argument proves that law and morality are linked Lon Fuller: Hart’s reliance on moral rules to validate laws almost makes him a natural lawyer With Hart’s penumbra, judges are effectively fusing law and morality when extending rules to new cases ○ Hart’s counter-argument: Fuller’s view = judges merely finding instead of making law Fusing “is” and “ought” doesn’t necessarily have to relate to morality It’s more about procedural things (how they need to interpret and apply laws) Evil morality can’t exist because evil aims can’t have the same coherence and inner logic ○ Hart’s counter-argument: Social aims AREN’T necessarily moral They could be based on pragmatic or political purposes  ○ Ex.) A Nazi judge might have made rational decisions aimed at maintaining the regime’s tyranny, but these decisions WEREN’T morally sound Joseph Raz (HARD Positivist): ○ Legal legitimacy: Based on the SOCIAL REASON (but not the same as Hart’s) Law is the valid reason when it’s the exclusionary (ONLY) reason When you renounce all non-legal reasons when making a choice ○ Perfectionist Liberalist: All principles of liberalism MUST be reduced to legal procedures ○ Wants to destroy all the extra-legal factors that Hart talked about (especially morality) ○ Main point: Rules are normative (obligative) because they are legitimate and are enforced (by judges) ○ Looks at society as positivists who don’t incorporate morality ○ Legitimacy of law: Law is autonomous Identity and existence ⇐ Efficacy, institutional character, sources No morality It’s a factual / scientific enquiry Law = social fact No moral judgement Legal reasoning is NOT autonomous It’s a feature of judicial reasoning (which should be based on legal adjudication, not moral judgement) ○ Social Thesis: Law = Social fact ○ Moral thesis: Morality CANNOT be part of legal analysis Morality is contingent (not objective or fixed) ○ Semantic thesis (relates to Hart’s analytical thesis): Normative terms have different meanings in moral and legal contexts ○ Sources thesis > social thesis Sources: Institutions (set unquestionably binding standards) People have no general moral obligation to obey the law No moral authority for law ⇒ No immediate duty to obey Law owes its normative character (legitimacy) ONLY to the INSTITUTIONAL STRUCTURE of society, NOT morality Function of the law: Value-neutral legal analysis ○ Don’t consider morality in analyses  Content of the law: Adjudication inevitably relies on moral consideration ○ SO DON’T LOOK AT THE CONTENT OF THE LAW Because doing so will undoubtedly lead to moral considerations Rule of law: Created by the law itself; doesn’t have independent moral merit ○ Law validates itself ○ Conter-arguments: In what ways are rules normative? How do they differ from ordinary reasons? What does the normativity of legal systems consist of? Raz’s reply: Legal systems work like rules in GAMES ○ People accept the rules of a game without questioning them in order to play it They might argue about the application of those rules, but not the contents of them ○ These rules are self-validating and are applied in a perfect way The rules don’t have to be explained / justified ○ Main point: Rules are normative (obligative) because they are legitimate and are enforced (by judges) Practical reason: ○ Legal systems are designed in order to achieve a goal (benefit of the subjects) ○ So what comes first? Social benefit or the existence of the law? ○ Raz’s logical explanations: Positivists apply the exclusionary rule (choosing the LESSER OF TWO EVILS (based on RATIONALITY, not morality) to achieve social benefit Choose the “less bad” option based on RATIONALITY, not morality Don’t choose the “best” option because that would require using morality ○ Law is there to provide OPTIONS (the possibility to choose) ○ Law looses (or loses?) its function of providing an authoritative guidance to the behaviors Natural Lawyers: L.L. Fuller: ○ Praises Hart (a bit): For being more open than other positive lawyers (like Austin), allowing for more fruitful debate For acknowledging that positivism ISN’T ethically neutral Hart acknowledges that morality should be the foundation of laws Positivists have a LEGITIMATE fear of interfering in the law (purposive intervention) Purposive intervention can turn from “you can’t do this” into “you MUST do this” ○ Fuller’s Criticism of Positive Law: Fidelity to law requires laws to be JUST Positive law is WRONG to define morality as “everything that isn’t law” Positive Law offers little guidance during crises Fuller REJECTS Austin’s Command Theory of Law There should be accepted fundamental rules that define lawmaking procedures Law CAN’T exist without moral acceptance Hart sees morality as only influencing the “penumbra” and leaves the core of law untouched Evil morality can’t exist because evil aims can’t have the same coherence and inner logic Hart neglects the internal morality of law Morality is required for coherence Hart misunderstood Nazi law as just “bad” law BUT it actually went against internal morality (it was fundamentally unjust) Some Nazi laws were secret and applied retrospectively ○ These violated the morality of law, so they shouldn’t be considered valid ○ The Nazi legal system CAN’T be considered a legal system because of this Positive law allowed the Nazis to come to power In post-WW1 Germany, positive law was widely accepted by lawyers and the public This allowed Hitler to manipulate legal forms to consolidate power ○ Lawyers offered little resistance because they were trained to accept laws without questioning their justice Problems with Hart’s “penumbra”: CONTEXT is always important (you can’t just analyze the meaning of a single word)  Judges should consider the PURPOSE of the law, not just consider applying laws to new cases by focusing on just one word ○ Ex.) A noisy car should be banned from parking in a park because that’s the purpose of the law ○ Ex.) A truck being placed as a memorial in the park = ok Judges don’t just label cases; they MUST solve problems by interpreting laws according to their purpose ○ They must make laws COHERENT and WORKABLE ○ Fuller’s Ideas: Order VS Good Order: Order = the existence of law Good order = laws align with justice, morality, etc. The Morality of Order: Even systems aiming for just order (NOT good order) need to have morally just laws Order carries a MORAL element ○ Ex.) Even a selfish monarch must maintain a level of consistency between his commands and his actions (i.e. follow his own laws) to create a minimal system of law This shows that without some moral commitment to maintaining order, even bad law cannot function effectively Law’s Powerlessness Without Moral Responsibility Law alone is insufficient to create order A legal system requires not only external acceptance BUT also internal morality ○ Internal morality = The willingness of those in power to respect the responsibilities that come with creating and maintaining laws If these moral responsibilities are ignored, law cannot be sustained, regardless of how many commands are issued Laws need to have a moral foundation for the long-run Forcing judges to apply the letter of the law could have problems ○ Ex.) Bad laws VS commercial reality: a judge is forced to apply laws that misunderstand commercial practices Aligns with Radbruch’s approach: Order and good order are INTERTWINED  AGREES that the best way to deal with Nazi informer cases was to apply retroactive laws ADDS that post-war judges were RIGHT to declare Nazi laws void Serves as a symbolic break from the Nazi legal system, which couldn’t really be considered a legal system anyway ○ By isolating the cleanup operation, the judiciary could return more quickly to normal, where legal morality could once again be respected Judges need to take on a creative role BUT remain within the law’s structural integrity Realists: Contractualists: Thomas Hobbes: Free will doesn’t exist because as parts of society, people’s actions are already limited ○ People are like prisoners bound by a “very long chain” so it seems like they can move around freely, but in reality, they’re not free State of nature (unlawful): ○ Thought experiment: Situation in which there is no power, no authority, no law ○ People live in complete anarchy ○ Everyone thinks they are entitled to everything Ius ad omnia: The right to do everything without limitations ○ Everybody attacks everybody else Bellum omnium contra omnes: A war of everbody against everybody else Hobbes says that because of this stressful state of nature, people came together and agreed to give up some of their powers to a superior authority to make peace Social contract (pacta servanda sunt): The state is here to provide law and order ○ The authority must act as a guardian / watchdog ○ The authority must have ABSOLUTE power (summa potesta) Because of this, people can’t dispute or resist this authority ABSOLUTE authority  ○ The authority can do anything to prevent falling back into the state of nature and all of its chaos In Leviathan: ○ Authority is made of people because people came together to give power to that authority This power is ABSOLUTE Law is provided ONLY by the authority through the social contract John Locke (OPPOSITE of Hobbes): State of nature (lawful): ○ The state of nature already has an orderly faction ○ People are bearers of pre-political liberty rights Pre-political rights = innate rights that people were born with even before authority was established The government MUST govern in compliance with this pre-political law (the law of the nature) Why do we need an authority? ○ Even though people know what rights they have, disputes can still arise between overlaps between people’s spheres of individual rights There needs to be someone to adjudicate disputes Social contract: ○ Establishes an authority capable of JUDGING disputes Not entitled to overcome pre-political rights It’s meant to realize natural law NOT an absolute authority ○ It’s bound by natural law (the law of the state of nature) ○ If this authority abuses its power (creates laws that don’t comply with natural law) and goes beyond its task, people have the right to rebel against it Locke definitely inspired the Declaration of Independence Jean-Jacques Rousseau Authority belongs to the people and is expressed by them Law = the expression of the general will ○ General will = what the MAJORITY wants Equality > Freedom (equality is more important than freedom) ○ People must represent the equality of each individual ○ No room for diversity, minorities, identities, etc. People speak with ONE voice, expressing the general will No space for people to express their individuality When minorities vote, they should change their minds and vote with the majority People who don’t agree with the general will are enemies of the people  ○ Inspired the original leftist thinkers Context: This idea was created in the smallish commercial city of Geneva, where everyone was bourgeois Failure: Robespierre and the Jacobins applied this idea and used the guillotine to eliminate those who opposed them ○ People weren’t allowed to reject the ideals of the revolution Overall Comparison: Hobbes Locke Rousseau Absolute Authority Law (natural) Law ↓ ↓ = Law Authority (to adjudicate) General will of the people Obedience (no right to Right to resist (if the Obedience (no room for resist) authority fails to uphold dissent) natural laws) Police state and absolute Democratic absolutism monarchy Constitutional state (rule (totalitarian democracy) of law) State of nature = Equality > Freedom ANARCHY State of nature = natural law BUT no authority to Authority = ABSOLUTE adjudicate Authority = NOT absolute (bound by natural law) Others: Hans Kelsen (Formalist Normativist but NOT a positivist)): Interested in the legitimacy of the forms of law (superior authority validated by another superior authority), not their content ○ Hierarchy of Norms ○ Validation ends with the constitution, but then, there is no higher authority Kelsen and Hart say that the higher authority is the Rule of Recognition Grundnorm: It’s unwritten; it’s just a fact This is why hard positivists criticize them for rooting their arguments in morality Pure Doctrine of Law (Reine Rechtslehre): Law should only be studied with legal terms & legal elements  No politics, science, economy, sociology, etc. Law should NOT be explained with references to other subjects Law exists within itself (separate from other subjects) De-ideologization of positive law Analyze the FORM of the law, NOT its CONTENT Kelsen was NOT a positivist! Normativism ≠ positivism Focuses on the normativity of the law ○ Everything is about the norms (basic elements of law), which have the power to direct / impose an action to people Norms can only be analyzed using legal terms Science of Law: Can be explained only with the very instruments of law No other subjects, philosophies, ideological theories, etc. ○ General Theory of Norms: Norms = Basic elements of the law (propositions that can direct behaviors; instruments of social techniques) Validity is based on their FORM and effectiveness (whether they can direct people’s behaviors), NOT their CONTENT Using a sort of scientific method to create a proper system of law where everything has its scientific category Within that system, we can determine a norm’s validity Normal Dynamics: Particular dynamics within the law Scheme of Law (Stufenbau der Rechtsordnung) Same as the Hierarchy of Norms EXCEPT it should only be looked at through formal aspects Each norm must follow its superior norm in order to be considered valid Grundnorm (basic norm) ⇒ Constitution ⇒ Powers ⇒ Laws ⇒ Decrees ⇒ Administrative orders and provisions ⇒ Contracts ○ The constitution’s validity CAN’T be proven by the constituent power Because the constituent power is NOT legal Kelsen sees the the constituent power as nonsense since it’s not part of pure law ○ The constitution is validated by the Grundnorm All laws can be deconstructed only by looking at their forms Grundnorm: It’s the presupposed (assumed) validity of the law  ○ Assumed to exist in order to validate the Scheme of Law / Hierarchy of Norms ○ Kelsen says that it’s NOT outside of the law The grundnorm is contentless and entirely hypothetical The Grundnorm is identical everywhere in the world The grundnorm isn’t real and can’t be validated, but that’s exactly Kelsen’s purpose ○ Kelsen wants to purify law from reality ○ He just wants to analyze the validity and normativity of the law, NOT its reality Hart’s Criticism of the Grundnorm: Hart said the grundnorm is exactly like his Rule of Recognition Kelsen objects: ○ The Rule of Recognition validates a societal order ○ The grundnorm is like a crystal bubble that is necessary to find a theoretical root to his construction Sovereignty (biggest problem with Kelsen’s idea): State-Law Identity: ○ Kelsen says that a state IS its law ○ Lawyers shouldn’t assess other public phenomena other than the law of that state ○ Kelsen is the inventor of CONSTITUTIONAL JUSTICE Because in constitutional justice, every legal problem can be solved directly within the legal sphere Every action within the state can be analyzed with just a legal procedure Constitutional tribunals should just analyze whether laws are compliant with the superior law (the constitution) What about society? ○ Kelsen says, “Why should we analyze society? We should only look at the law” ○ Counter-argument: “Doesn’t this mean that every form of government can be validated?” Kelsen’s reply: “No, only democracy” Because ONLY democracy can be analyzed formally The substance of true democracies are formal and impersonal  ○ Everyone can take part through a formal procedure ○ A democracy is valid when that formal procedure is respected Voting, elections, etc. are all LEGAL PROCEDURES All other forms need other non-legal justifications, like societal support, armed force, etc. Democracy is PURELY a matter of legal forms ○ Democracy is the perfect example of legality and formal procedures ○ It’s not important who the leaders or MPs are Santi Romano (Institutionalist): Law ISN’T just a linguistic rule that organizes behavior Law is a SOCIAL fact ○ Depends on society and how society organizes itself Law can’t be understood without looking at the society in which the law operates ○ Society evolves in a certain way, and rules are determined by the behavior of that society Law makes use of rules BUT CANNOT be reduced to rules It’s the very life of a community which becomes an “order” and establishes norms to give social actions identity and regularity On Law and Morality: The Story of Eteocles and Polynices: Setting: Thebes (the state) Eteocles: Defender of the State (but refused to comply with the law) Polynices: Traitor of the State (was a rightful heir but became a traitor) King Oedipus has just committed suicide because he found out that he had married his own mother ○ The king has 2 heirs: Eteocles and Polynices They agree to share the throne (1 year at a time) ○ Eteocles refused to yield the throne to his brother after the 1st year He violated the binding rule (the agreement) ○ Polynices flees, rallies all of Thebes’s enemies, and marches against Thebes  ○ Both Eteocles and Polynices die in battle ○ Creon (brother of the queen, descendant of the founders of Thebes) takes the throne He sets a law to bury Eteocles with full honors while leaving Polynices to be eaten by dogs and crows Whoever disobeys will be hanged ○ Antigone (daughter of Oedipus; sister of Eteocles and Polynices) is subject to Creon’s law as a citizen of Thebes She decides to give a proper burial to Polynices because she is bound to the law of the gods and of nature The laws of gods are universal and eternal ○ Thus, they’re superior to the king’s laws No human law can prohibit her from doing so Positive Law: Creon's law (the king's law) ○ Immanent Law: Visible Natural Law: Antigone's law (the law of the gods) ○ Transcendent Law: Invisible The Justification of the Law: LEGALITY and LEGITIMACY ○ Creon’s law is totally legal and legitimate ○ BUT isn’t morality also legitimate? The Force of the Law: Authorativity and Normativity ○ Creon can use soldiers to exercise his authority and punish criminals ○ Morality is generally less authoritative Case of the Speluncean Explorers (by Lon Fuller) Contextual Information: Setting: The Far Future (4300 AD) Incident Overview: ○ The defendants, part of the Speluncean Society (founded in 4299), were trapped in a cave due to a landslide during a cave exploration. ○ The group included Roger Whetmore, who was eventually killed and eaten by his fellow explorers as a desperate means of survival. Circumstances of Rescue: ○ A large-scale rescue operation was mounted, involving engineers, workmen, geologists, and other experts. Several landslides complicated the efforts, leading to the death of 10 rescuers. The entire operation cost 800,000 frelars, funded by both public donations and government support. ○ After 32 days, the trapped men were finally rescued. Events Inside the Cave:  ○ The explorers had limited provisions and soon realized they might not survive long enough to be rescued. ○ Communication was established with the rescue team via a wireless device. They were informed it would take at least 10 more days for their rescue. Medical experts informed them that survival without food for 10 more days was unlikely. ○ Whetmore, representing the group, asked the physicians if cannibalism could allow them to survive another 10 days. The physicians confirmed it would help, but no one was willing to advise on the morality or legality of such an act. The Decision to Kill Whetmore: ○ Whetmore originally suggested the idea of drawing lots to decide who would be sacrificed and eaten. He even proposed using a pair of dice he had on hand. ○ However, before casting lots, Whetmore changed his mind and withdrew from the plan. Despite his withdrawal, the others proceeded with casting lots, rolling the dice on his behalf. Whetmore lost the dice roll and was subsequently killed and consumed. However, he accepted his fate at the end. Truepenny (Positivist): The defendants are GUILTY, based on the letter of the law ○ The statute clearly states that anyone who "willfully takes the life of another" shall be sentenced to death Cognitive Interpretive Theory: Judges must just apply the law WITHOUT interpreting it ○ Judges are like machines, only serving to apply the law They SHOULDN’T have the power to make laws Suggests requesting clemency (reducing the sentence) from the executive ○ Basically relies on the executive to pardon the explorers Foster (Natural Lawyer): The defendants are INNOCENT ○ There was no mens rea (criminal intent) since the explorers were in a state of necessity (nevertheless used their agency) The law goes against common sense The nation’s law (positive law) DOESN’T apply to the cave because the cave was outside of society ○ The explorers were in a “state of nature”  ○ Just as law doesn’t apply geographically beyond borders, it shouldn’t apply morally when men are removed from society Life is often weighed against other values ○ The lives of 10 workmen were sacrificed during the rescue operations Saving 4 lives at the cost of 1 in the cave followed a similar logic Teleological Argument: Laws should be interpreted according to their PURPOSE, not just the text ○ Ex.) 2 previous cases in the nation interpreted purposes ○ Judges can find exceptions to the law by IMPLICATION As they had done earlier with self-defense ○ Criminal law can’t be used to direct behaviors in such extreme situations Evaluative Interpretive Theory: Judges need to read between the lines of the line (not just comply to it strictly) ○ Judges can interpret the meaning of the law, thereby CREATING new laws The explorers acted in self-defense ○ Self-defense is a legal justification for killing Tatting (Formalist): Tatting can’t separate his emotions from the case and decides to withdraw Criticizes Foster: ○ Human life is non-fungible ○ Natural law prioritizes the “freedom of contract” above the right to life, which is absurd Freedom doesn’t always overcome other principles ○ The self-defense exception can’t be applied because it wasn’t a “willful” killing Criticizes other judges: ○ Failed to distinguish between morality and law Natural law can’t be applied since the judges are bound by the nation’s laws Whetmore withdrew from the agreement, so the others were wrong to kill him Laws might also have multiple purposes (not just deterrence) The self-defense argument doesn’t work ○ The explorers acted with deliberation (agency) Prior case: Commonwealth v. Valjean ○ Hunger was NOT accepted as a defense for theft Keen (Ethical Jurisprudentialist): The defendants are GUILTY Separation of Powers:  ○ The task of intervening on the letter of the law is the responsibility of the LEGISLATORS (not the judges) Morality should be separated from the case ○ Rejects Foster’s “state of nature” argument Follows the literal wording of the law Attempting to interpret the purpose of the law = judicial overreach ○ Gives the judiciary too much power over the other branches Agrees with Tatting that laws might also have multiple purposes (not just deterrence) Self-defense ONLY applies to aggressive threats Handy (Realist): The defendants are INNOCENT (since the people think so) ○ 90% of the population wants them to be pardoned or lightly punished Criticizes the focus on abstract theories like positive law VS natural law (and government functions like judiciary VS executive) Judges should focus on understanding public opinion instead of just applying legal principles ○ Legal principles are expressions of public opinion The chief executive is stubborn and unlikely to pardon the explorers Final Result: The judge asks Justice Handy if he wants to change his mind after hearing all the other arguments, but he doesn’t Since the justices are equally split (50 / 50), the original verdict (the death sentence is upheld) The explorers are to be executed Professor’s Take: “Mens Rea” = criminal intent ○ Requires that the defendants purposely murdered “Actus Reaus” = criminal act ○ Requires that the defendants’ actions resulted in the death of another person The Conceptual Concepts at Stake: ○ Is it ever morally justifiable / excusable to kill and eat a human being? ○ Is it legally justifiable to kill and eat a human being in order to save one’s life (defense of necessity) ○ Is there any connection between moral justification and legal justification? ○ What is the proper role of a judge in deciding a conflict between legally protected values?  ○ What kind of reasons (for the judge) could be considered admissible, valid, and cogent in reaching and justifying a judicial decision over the reconciliation between these conflicting values? Other Info: ○ Ex.) Volksgeist (spirit of the people): Under the Nazi regime, judges were asked to interpret the ideology of the regime in trials They used laws that were there since the regime was established, BUT they were pushed to interpret them based on the Volksgeist (the will of the people) Judges applied the “living law” (law as the people would interpret it) ○ Ex.) In the Soviet Union (1920s), they believed that laws would become unnecessary for society to settle disputes Because laws were an emblem of the “bourgeois” With communism, there shouldn’t be any disputes ○ HOWEVER, later on, Vyshinsky (Stalin’s legal theorist) said that the regime needs law as an instrument to impose its doctrine Judges, as officials of the regime, must NOT use “living law” They need to be “machine judges”, applying the strict letter of written law ○ Plank of Carneades (thought experiment from Ancient Greece similar to this Case of the Speluncean Explorers) One shipwreck survivor pushed another off the plank to save himself (but this wasn’t willful murder) ○ The Matters at Stake: Law VS Morality Legal Positivism VS Natural Law Justice VS Injustice Judicial Function VS Legislating Function Law VS Democracy VS Public Opinion Interpretation of State Law & Legal Interpretation Sovereignty of Law and Power: Law and Power: Power can be recognized by its effect on our actions ○ When there is a legitimate authority, our actions are limited Hetero-determination: When a superior authority determines our actions (limits people’s liberties) using binding imperative commands ○ Because of this, power is looked at with suspicion Self-determination: The freedom to determine your own actions (without limits) What is freedom?  ○ Thomas Hobbes: Free will doesn’t exist because as parts of society, people’s actions are already limited People are like prisoners bound by a “very long chain” so it seems like they can move around freely, but in reality, they’re not free ○ Baruch de Spinoza: Free will is the ability to want something or to want to do something Power limits actions but ALSO influences people’s wants Power = limits to liberties (freedoms) ○ Power needs justification (an explanation) and legitimation because it’s looked at with suspicion Constitution of power: ○ Constitutionalism provides a justification (explanation) for power AND provides a counter-balance to power, thereby limiting it Constitutionalism LIMITS power The constitution determines the scope, instruments, and possibility for an authority to intervene in social life Decidability of power: People can decide its range, scope, and forms ○ By deciding, people are counter-balancing its effects and limiting it Prof Brozetti’s opinion (against Kelsen): It’s absurd to think that public law can be discussed as a pure subject without also considering other things like politics What power? (Max Weber, Economy and Society) ○ Macht Power to DO something / change things ⇐ active, factual power ○ Herrschaft BEING powerful (i.e. legal powers) A superior entity has power because it’s superior to its subjects ○ Disziplin (also Michel Foucault) Power that physically coerces people (how to think, how to act) Power that limits freedoms to certain possibilities, enforcing it with the threat of punishment Needs instructions and balances What authority / domination? ○ Rational-legal: Power as legal forms (bureaucratized, rationalized, de-ritualized, legalized) Ex.) Modern leaders aren’t the strongest or the wisest, but they’re in power due to a series of procedures ○ Traditional: Authorities that are perceived as in charge of a community due to specific characteristics Ex.) Strongest man is in power in a Viking tribe  ○ Physical strength entitles him to power Ex.) Councils of elders are in power in nomadic tribes ○ Seniority and wisdom entitle them to power ○ Charismatic: Features that are able to break the rational legal procedure ONLY thanks to charisma (capability to embody full power) Personalization of authority Modern Age: In the modern era, SECULARIZATION meant that everything (including power and social rules) can be questioned ○ In antiquity: People discussed the best forms of powers BUT didn’t question WHY there should be power Now: Power is being questioned, and it must provide a rational justification Divine right is ok but must be legally explainable Thomas Hobbes: ○ State of nature (unlawful): Thought experiment: Situation in which there is no power, no authority, no law People live in complete anarchy Everyone thinks they are entitled to everything Ius ad omnia: The right to do everything without limitations Everybody attacks everybody else Bellum omnium contra omnes: A war of everbody against everybody else ○ Hobbes says that because of this stressful state of nature, people came together and agreed to give up some of their powers to a superior authority to make peace ○ Social contract (pacta servanda sunt): The state is here to provide law and order The authority must act as a guardian / watchdog The authority must have ABSOLUTE power (summa potesta) ○ Because of this, people can’t dispute or resist this authority ○ ABSOLUTE authority The authority can do anything to prevent falling back into the state of nature and all of its chaos ○ In Leviathan: Authority is made of people because people came together to give power to that authority This power is ABSOLUTE Law is provided ONLY by the authority through the social contract John Locke:  ○ State of nature (lawful): The state of nature already has an orderly faction People are bearers of pre-political liberty rights Pre-political rights = innate rights that people were born with even before authority was established The government MUST govern in compliance with this pre-political law (the law of the nature) ○ Why do we need an authority? Even though people know what rights they have, disputes can still arise between overlaps between people’s spheres of individual rights There needs to be someone to adjudicate ○ Social contract: Establishes an authority capable of JUDGING disputes Not entitled to overcome pre-political rights It’s meant to realize natural law ○ NOT an absolute authority It’s bound by natural law (the law of the state of nature) If this authority abuses its power (creates laws that don’t comply with natural law) and goes beyond its task, people have the right to rebel against it ○ Locke definitely inspired the Declaration of Independence Jean-Jacques Rousseau ○ Authority belongs to the people and is expressed by them ○ Law = the expression of the general will General will = what the MAJORITY wants ○ Equality > Freedom (equality is more important than freedom) People must represent the equality of each individual No room for diversity, minorities, identities, etc. People speak with ONE voice, expressing the general will No space for people to express their individuality When minorities vote, they should change their minds and vote with the majority ○ People who don’t agree with the general will are enemies of the people Inspired the original leftist thinkers ○ Context: This idea was created in the smallish commercial city of Geneva, where everyone was bourgeois ○ Failure: Robespierre and the Jacobins applied this idea and used the guillotine to eliminate those who opposed them People weren’t allowed to reject the ideals of the revolution Overall Comparison:  Hobbes Locke Rousseau Absolute Authority Law (natural) Law ↓ ↓ = Law Authority (to adjudicate) General will of the people Obedience (no right to Right to resist (if the Obedience (no room for resist) authority fails to uphold dissent) natural laws) Police state and absolute Democratic absolutism monarchy Constitutional state (rule (totalitarian democracy) of law) State of nature = Equality > Freedom ANARCHY State of nature = natural law BUT no authority to Authority = ABSOLUTE adjudicate Authority = NOT absolute (bound by natural law) Anecdote From English History: Magna Carta (1215): Barons limited the king’s power ○ 1) The king can’t convict freemen without a fair trial Fair trial = a trial with a jury made up of the barons’ peers ○ 2) The king can’t tax the barons without the decision of a council that represents the taxpayers Same concept as the American revolutionaries (no taxes without representation) English kings since the Middle Ages knew that their power was limited by other social bodies ○ Tudors tried to be absolute monarchs and opposed these other bodies The Tudors were very strong monarchs ○ King James I (originally of Scotland) consolidated absolute power He was very strong and people respected him ○ King Charles was a weaker king The other social bodies started rebelling Oliver Cromwell was coming up with a plan to restore the parliament King Charles entered the parliament with armed soldiers, demanding to arrest Cromwell ○ Parliament members started shouting, “Prerogative!” English Civil War started in this moment Monarchists VS Parliamentarians  ○ After Oliver Cromwell’s dictatorship ended: The King-in-Parliament ruled England The parliament and the king shared power Part of the parliament represented the king, but the king only physically entered parliament once a year Moral of the story: Law is rooted in the culture and traditions of a country as well, NOT just legality ○ This is why positivism is insufficient Anecdote From Hungarian History: The Crown of St. Stephen represents the unity of the Hungarian people ○ This crown is the official chief of state (supported by the constitution) Hungary is now a republic ○ The president of the republic acts in the name of the chief of state (the Crown of St. Stephen) Since the time of St. Stephen, Hungary had no proper sovereign Some people see this crown as nonsense but it represents the relationship between law and power Constitutions: Definition of a Constitution: 1) Descriptive Notion: The state AS IT IS (political regime, form of government) ○ Written / unwritten normative structure Organization of the state (organs, authorities, and powers) Goals, ideals, and values ○ HOW a society is politically organized 2) Prescriptive Notion: The state as it OUGHT TO BE (in order to be considered as formally “constitutional”) ○ The state as it should be to be considered as formally “constitutional” Rights and liberties of the citizens Separation of powers ○ CAN’T be used to describe ancient states like the Roman Republic Since rights and liberties, separation of powers, etc. might not have existed yet ○ Essential Contents: 1) The Political Goal Constitution = a means to solve and overcome a historical crisis ○ Aka the goal of a country Ex.) Italy is a “democratic republic founded on labor”  2) The Dogmatic Heritage (undisputable) Constitution = a set of principles and founding values a society has chosen to realize that political goal and adopted as its own model for a State 3) The Structure of the State Constitutional system = formalization of the constitutional norms ○ Consistency ○ Contractualists and Neo-Contractualists Constitution = the positivization of the national deal of citizenship The constitution is an a SOCIAL CONTRACT Its content has a social and political charge It’s where politics becomes a legal subject ○ Constitutional law can only be analyzed when also looking at the politics Evolution of the Prescriptive Notion of Constitutionalism: ○ Ancient Constitutionalism: The existence of an authority wasn’t even questioned No one questioned its origins, reasons, or arguments The discussions were about the BEST form of exercising power Plato: Philosopher-kings Aristotles: Polity (constitutional democracy) OR