Central Issues in Jurisprudence

8/11/2019 Central Issues in Jurisprudence

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N.E. Simmonds Central Issues in Jurisprudence

Chapter 2Rawls

The original position

o The veil of ignorance represents a set of conditions that it is fair to

impose upon the choice of principles of justiceo Persons in the original position do not know what their own

conception of the good is, they will choose principles that do not

seek to reflect or embody any one particular conception

The basic structure

o Basic structure of a society is the basic framework of institutions

that distributes the benefits and burdens of social life and thereby

fundamentally shapes peoples life prospects

Question of justice is a mirage, not the result of deliberate

design, but the unintended outcome of a huge multiplicity

of human actions BUT, Rawls might reply that society can be thought of as a

system of cooperation of mutual interests, insofar as it

makes life better than living in isolation

Question of whether a good society requires a shared

concept of justice

Any modus vivendi, ungrounded in principles of justice, will

be dependent upon the balance of power between rival

groups, resting on pragmatic compromise rather than deep

principles

Why does Rawls think that utilitarianism fail?

o

Ignores the distinctness of persons Does not adjudicate between different individuals, treating

people as receptacles

o The right and the good

Utilitarianism defines the right in terms of the good

But is the good necessarily right? (For example, the

pleasure of slave owners due to the availability of cheap

slave labour)

The thin theory of the good

o Each of them knows that they have a conception of the good, but

they might have different conceptions of the good from otherpeople

o The theory holds that it is rational for people to want certain

things, whatever else one may want.

But, it is biased in favor of the individualist conceptions of

the good life

BUT legal order of a liberal society cannot claim to be

neutral in terms of allowing everyone an equal opportunity

pursue his or her own conception of the good life

Stepping back through to a higher level of abstraction:

instead of asking what would serve to advance this or that

conception of the good, we ask what would be chosen bypeople who do not know what the good might be


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Two principles:

o 1) Each person is entitled to the most extensive system of basic

liberties that is compatible with a similar system for everyone else

o Social and economic inequalities are just only when: (a) they work

to the advantage of the least advantaged people in society, and b)

they are attached to offices and positions that are open to all undercircumstances of fair equality of opportunity

The difference principle

o Part (a) of the second principle of justice requires that inequalities

in the distribution of social primary goods must be justified by

reference to the interests of the least well-off

Because our natural talents and abilities come about in

exactly the same light as social lass and fortune

Talents as resources to be exploited

o Choosing the difference principle

They would base their choice on very conservative andcautious criteria of rational decision from behind the veil of

ignorance

Hence, they would choose the maximin principle

ultimately

Everything depends upon how the social primary goods of

the least advantaged groups are affected

Greater equality

o BUT criticized as unreasonably obsessed with the position of the

least advantaged

o Radical egalitarians see his theory as legitimating inequality in an

unacceptable way The first principle of justice

o 1) Each person is entitled to the most extensive system of basic

liberties that is compatible with a similar system for everyone else

Only time that the limiting of basic liberties can even be

entertained is for the sake of liberty itself

o People will want it because:

They have conceptions of the good, but know that it may

differ from the conceptions held by others, but they do not

know its content

They do not regard themselves as bound to a particularconception of the good all the time . Only when people have

the opportunity to revise their conception fo the good can

they be free

o Criticisms:

How do you measure whether one liberty/freedom is to be

preferred over another?

Or, as HLA Hart asks, why does Rawls not appear to include

sexual freedom, or the freedom to consume drinks or drugs,

in his list of protected liberties?

Seems to depend very much upon the conceptions of

our own of what the good should be Political liberalism


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o Communitarians attack Rawls theory of justice for its allegedneglect of the importance of concrete human communities

o In political liberalism, Rawls offers his theory not as a

comprehensive philosophical doctrine, but as a political theorythat can be supported by persons espousing different

philosophical and religious doctrines Similar to utilitarianism, which can be used as a mental

principle of morality, or as an appropriate standard to be

followed in the enactment of legal rules

Such a public conception of justice seeks to abstract from

the differences in moral and religious viewpoint that

inevitably characterize a liberal society

Abstraction in argument is, according to Rawls, a way of

continuing public discussion when shared understandings

of lesser generality have broken down

Rawlsian political liberalism depends upon a division

between the public realm of politics and the private realm

which citizens are free to pursue their own philosophies

and conceptions of the good

However, there are arenas where these private and

public philosophies clash. What then, for this

abstraction?

Chapter 3Nozick

Claims that each of us has a right to self-ownership

o Gives rise to property rights by mixing their labor with unowned

resources

o

Having acquired such ownership, I can transfer the resource toothers who need it. Hence, the justice of a distribution of resources

depends upon the series of transactions by which it came about

o Since much of the wealth is brought into existence by individuals

who have rights, it would be a mistake to see societys wealth assomething to be divided up amongst the whole of society

Rights as an arbitrary starting point

o Why is the right of self-ownership such a fundamental right?

Why not instead a focus on the right to a basic level of

welfare, or a degree of equality?

o

Nozicks response

Rights are to be thought of as:

Goals

o When thought of as a goal, such a right would

not prohibit the intentional killing of one

person, in order to achieve the ultimate goal

Side constraints

o Right not to be intentionally killed means that

constraints have to be adopted

o This is preferred, since we desire not to be

used as instruments by others


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Nozicks understanding: Each person is distinct and

no individual has rights in other persons. No trade-

offs are at all permitted in this theory of justice

o Principles of acquisition

Principle of acquisition is grounded in the principle of self-

ownership Difficulties in the argument of mixing labor:

o If I spill my can of tomato juice into the sea, I

have not acquired ownership of the sea, so

why should mixing ones labor be anydifferent?

o Lockes provisio that there must be enoughand as good left over for others before I can

acquire ownership of an unowned resource

However, if I hunt the only deer left in

the woods, then I cannot acquireownership because there is not

enough and as good for others

If, however, I cannot acquire the

penultimate deer, I cannot acquire any

deer at all, for the argument will zipback to encompass any single deer.(Sorites heap)

Adopts a weakened version of

the Lockean provisio.

Reconstrues the provisio to

require that my acquisitionmust not make others worse off

than they would have been in a

state of nature devoid of any

property rights at all.

o But it is argued that this

is mistaken as there

would be no defence to

the tomato juice

argument just presented

o

The limitation onLockes basis for

treating the mixing of

labour as the acquisition

of resource is not an

extraneous limitation,

but is instead integral to

it.

o Sits oddly with the idea

of property rights over

natural resources that

exist even before weextract it. Why not


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reward people for their

labour ONLY instead.

o Same can be said of

natural talents that

exist, not as a result of

an individuals labour Pale self-ownership

o Look through this again

Patterned distribution and historical entitlement

o Liberty and equality are constantly at odds with one another

Any attempt to maintain an equal or near equal distribution

of resources will demand constant interference with liberty

Not only the strict egalitarian, but anyone who holds a

patterned conception of justice will have to embark on

constant interference with liberty

A patterned conception views justice as a matter ofthe pattern of distribution that results from

transactions, rather than being a matter of the

voluntary nature of the transactions themselves.

o Judge the justice of a situation according to

where the resources end up

o Historical entitlement as an alternative conception of justice

Consist of three sets of principles:

Principles of acquisition

o Determines the circumstances under which

the someone can acquire ownership of

formerly unowned resources Transfer

o Situation in which resources can be

transferred from one person to another

Rectification

o Determine what should be done to rectify

unjust in terms of the first two principles

BUT enforcing a system of property right also encroaches

upon liberty

Liberty figures on both sides of the argument

because by ensuring that property is distributedmore equally, one ensures that the freedom to use

objects and spaces is itself distributed more equally

Markets and equality

o Will markets necessarily upset any patterned distribution

o Mere differences in monetary wealth do not always represent an

inequality in resources

If I like fast cars and lots of cash and am prepared to work

for them, and you like lots of spare and time and are

prepared to make do with less money, the differences in

income are likely to reflect the differing tastes.

Taxing me is likely to produce inequality at a morefundamental level: I am now working hard but getting less


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o Caveat: Differences often reflect accidents of social circumstance

and abilityBoth of which are arbitrary from a moral point of

view

Giving content to rights

o How do we give content to rights?

Kant placed the notion of equal freedom at the centre ofhis account of justice

Took it by concern the impact that one persons

conduct may have upon the freedom of others

Freedom can only be limited to maintain equal

freedom for others

BUT how is freedom to be measured/assessed?

Within Nozicks theory, rights are basically rights to

control the use of certain objects and spaces

o BUT what is to count as an encroachment

upon your property. Physicalinvasion/Trasmission of noise, offensive

smells?

o To consider such questions would be to step

out of the framework of the historical

entitlement theory and seek to determine the

requirement of justice by reference to

distributive or aggregative requirements.

Indeterminacy infects Nozicks assumption that

property rights are freely transferrable. Yet,

precisely because the various elements in the bundle

are logically separable, ownership does not entailthe existence of such a power.

o How do we get from the idea of ownership to

the idea of transferability?

The point is not that Nozick does not provide

answers, but that it is difficult even to imagine

answers that would not necessitate a step outside

the bounds of Nozicks right-based reasoning

o Nozicks self-ownership seems incapable ofproviding a response to such questions, and

conceivable responses seem to requirereference to the good in the form of welfare

or well-being, rather than the right.

Chapter 4Finnis on objective goods

Various theories examined so far claim to be neutral between the

different conceptions of good

o Rawls, Veil of ignorance

o Nozick makes no mention of these issues

o Utilitarianism is deemed sufficiently broad to encompass various

conceptions of the good

John Finnis seeks to restore an old and well-established conception of

practical reason drawn broadly from Aristotle to Aquinas


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o Rationality as a means of fitting means to an end in an

instrumental manner

Hume argued that reason cannot tell us what we ought to

pursue, but only how to attain ends we have already

chosen.

Argues that our moral beliefs are based onpreferencesThese preferences are neitherreasonable nor unreasonable

o Goods and desires

No desire can be said to be irrational, unless it depends on

false factual belief

The example of the saucer of mud suggests that a desire is

unintelligible unless it is related to some objectively good

characteristics of things that are to be desired

Goods and human nature

o

By reflecting upon our own grasp of practical reason, we can arriveat a set of objective goods. Since these goods represent forms of

human flourishing, they could be said to amount to a conception of

human nature.

o We arrive at prescriptive conclusions about the good by reflecting

upon our own engagements in practical reason

Prudence and morality

o A flourishing life requires some degree of concern for others

o Difference between prudence and morality is considered

insubstantial, in so far as a fully informed prudential concern for

ones own flourishing will encompass due concern for the well-

being of others But, wouldnt that create a situation where we are unduly

concerned with the welfare of other individuals?

Finnis answers that these goods are

incommensurable

Finnis wants to argue that there are limits to

reasonable self-preference: a degree of impartiality

is required of all of us

Incommensurability of goods

o BUT, we need to be able to make ordinal, not cardinal

judgments about the good The common good

o Answer is that it is essentially the condition that allows members

of a community to exercise practical reasonableness and lead

flourishing lives

o Has a number of implications:

Principle of subsidiarity

Affirms that it is the proper function of a community

to help individuals help themselves, and to assist

individuals in the pursuit of their projects

Also helps to underpin the idea that our moral concern for

the common good need not be an obsessive concern withhow well other peoples lives are going, but it is primarily a


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matter of fulfilling ones particular obligations in justice,performing contracts and so on

The role of choice

o Not all lives will count as practically reasonable One might fail to lead a flourishing life for a variety of

reasonso Difficult to see how it might be more reasonable to choose one

option while another person chooses another

Finnis does not want to say that because all the available

options are equally reasonable, the choice between them is

an arbitrary one

On the other hand, he does not want to say that you and I

may choose quite different things and yet choose fully

reasonably

o SOLUTION: One must choose a coherent plan of life on the basis of

ones capacities, circumstances and tastes A scholar may have little taste for friendship choosing

instead to focus on his/her research

One thing to have no taste for friendship, but it is another

thing, and stupid or arbitrary, to think or speak or act as if

these were not real forms of goodso Yet, problem still remains as to the choices to be made between

different reasonable options

Justice

o Principles of justice are simply the concrete implication of the

general requirement that one should foster the common good in

ones community Problems of distributive justice apply

Also the problem of dealing with specific persons

o Finnis ultimately sees justice as fostering the common good, his

account of justice is a flexible and pluralistic one

Not attracted by theories which offer a single principle to

regulate all questions of distributive justice

o Some theorists draw a very fundamental contrast between

distributive justice and commutative (corrective) justice

For commutative (corrective) justice, justice is primarily a

matter of property rights, the keeping of contracts and

correcting of injuries

Questions of distributive justice arise only when the owner

of some property wishes to distribute it.

For distributive justice, the basic questions of justice

concern how benefits and burdens of social life should be

distributed

These different ways of thinking about justice are

well represented in questions of contract and tort

For commutative (corrective) justice, the main

point about contract and tort must be that torts and

breaches of contract are wrong. As wrongs, theyshould be rectified by compensation


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For distributive justice, the main question is no

longer who is wronged by whom, but it is the

question of who should bear certain risks and

responsibilities.

o For example, the mass production of

consumer goods is an enterprise that benefitseveryone. BUT who should bear the risk of

such har,?

HOWEVER, Finnis views that these two conceptions

represent two different aspects of the general problem of

fostering the common good.

Basic rights

o Finnistheory is centred on common goods, not individual rights.

But because the requirement of the common good are complex, it

is useful to be able to report the implications of those

requirements in the terminology of rights Rights are grounded in Finnis theory in the principle thatone must never perform an act that in itself simply harms

or impedes basic goods

BUT remote but foreseeable consequences of many of our

actions harm basic goods

For example constructing a high speed railway

means that someone is virtually certain to die

o But Finnis accepts this criticism and states

that we may not undertake direct actions that

damage basic goods

Distinction isproblematic. Howdirect is direct?

o Absence of a common scale by which distinct

values may be conceded isproblematic

Direct vs indirect actions touches on the DDE. This is

problematic

o Abortion as an example

Kill the foetus is not permitted, even

though it saves the mothers life Pull out the womb is permitted, even

though it is virtually certain that deathwill result, BUT it is not intended

This poses a problem though, does it mean that

there are certain circumstances under which any

action is justifiable?

Part 2: Law

Is there an obligation to obey the law?

Can punishment be justified?

What makes something legally valid

How can judges be constantly making and changing law, if they are bound

to apply pre-existing law?

Natural law and legal positivism


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o Natural law emphasizes the roots of the law in justice and the

common good

Includes Aristotle, Thomas Aquinas and John Finnis

These are human goods that can be secured only

through the institutions of human law, and the

requirements of practice and reasonableness thatonly those institutions can satisfy (Law and natural

rights, John Finnis)

Law is to be understood by its focal instances

when it serves the common good

o Legal positivism emphasizes the laws basis in authority

Law for Thomas Hobbes, is necessary to make social order

possible, but it does not fulfill the requirement of any

underlying structure of rights

Hobbes is thought of as a legal positivist because he

emphasizes the need of the law to moderatebetween differing, competing interests

MODERN legal positivists do not see themselves as offering

a prescriptive argument about laws moral authority. They

are trying to offer a way of understanding laws nature thatsets on one side all moral issues.

Many modern legal theorists view their job as that of

conceptual clarification

Chapter 5: Hart

Legal positivismWhat they do and do not claimo Positivists claim that the legal validity of the rule is a matter of the

rules derivability from some basic criteria of legal validityaccepted in the particular legal system in question

o Positivists claim propositions of law are NOT moral judgments

o Positivists do NOT deny the importance of morality. Instead, they

see intellectual clarity as being served by the separating of the

moral evaluation of law from the content and nature

o Positivists do NOT deny that moral views influence the contents of

law passed by legislators

o Positivists do NOT deny that judges sometimes decide cases by

reference to oral values

o

Positivists do NOT that there may be a moral obligation to obey thelaw.

o Positivists do NOT claim that we should always obey the law, or

that judges are applying legal rules. These are issues not dealt with

by positivists

o Positivists do NOT claim that there is anything in the concept of

law itself that entails any grounded ness in the validity of rules

Normativity and reductionism

Rules and the internal point of view

o The view of law as being constituted by the sovereign, with people

obeying it by threat of suffering a sanction at the sovereigns

behest. (Propounded by J.L. Austin)o Hart argues that these ideas are insufficient.


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Problem of succession

Suppose that a supreme law maker in a certain legal

system is an absolute monarch, Rex I. According to

Austin, Rex I is the sovereign insofar as he is

habitually obeyed by the bulk of the population. Now

suppose Rex I dies and is succeeded by his son, RexiI. Having only just taken power, it follows that we

cannot describe the bulk of the population as

habitually obeying him. So on Austins definition of

the sovereign, we cannot describe the bulk of the

population as habitually obeying him. Problem of sanction

Likelihood of sanction may force me to act in a

certain way as a defining characteristic of the law,

according to Austin

BUT what about judges imposing obligations? Also unable to accommodate considerations of

rights, entitlement, obligation and justification in his

theory of law

Internal point of view

When an accepted rule exists, there is conforming

behavior (external aspect), coupled with the ruleas a basis for evaluation and criticism (internalaspect)

o Power and secondary rules

Bentham and Austin treated all laws as duty-imposing.

BUT Hart thinks that this tendency to reduce all lawto a single pattern ignores the differing social

functions of different laws

o Wills are not restriction on conduct. It merely

offers us a means of controlling the

disposition of property

o Power-conferring laws confer the power to

alter legal rights and relations

Wills

Marriages

Secondary rules

As opposed to primary rules, that are rules about

conduct (like do not kill)

Secondary rules deal with rules about other rules

o The most important is the rule of

recognitionSome feature or features

possession of which by a suggested rule is

taken as a conclusive affirmative indication

that it is a rule of the group to be supported

by the social pressure it exerts. (Hart) a

How do we decide that the rule of recognition is?

o

Rule of recognition is a rule accepted byofficials


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o Established by empirical observation

The whole point of the rule of recognition is to

provide a body of publicly ascertainable rules that

can be established by reference to empirical facts.

o This makes it separate from morality

o

US bills of rights might have certain moralstandards, but these are contingent, not

necessary, connections

The legal system

o They key idea is that the rule of recognition changes if a bulk of

officials (curiously undefined) recognize and change it.

o We will see however that Hart also wishes to eschew an austere

reliance upon considerations of pure form and to invoke certain

minimal and uncontentious claims about laws purpose

Adjudication

o

Where the law does not give an answer, judges must establish byhis decision, a new legal rule

o Early twentieth century, many American scholars emphasized the

apparent pliability and alterability of legal rules and the extent to

which this pliability required judges to rely upon considerations

drawn from outside the legal rule itself. (American realists)

Tended to focus upon the way in which our interpretation

of rules depend upon the a host of background contextual

assumptions, and the way in which rules of case law may be

modified in the course of application

Realists tended to emphasize the stability and predictability

of judicial understandingso Hart distinguishes between formalists and rule sceptics

Formalists look at law as a self-contained body of standards

that determine by deductive logic the correct answer

BUT Hart things that language has an open texture

There will be a range of clear cases, but there will

also be penumbral cases where it is not clear

ALSO Hart thinks that the American realists are making a

mistake

Realists overlook that words have a core of settled

meaning BUT Simmonds argues that

o 1) Rule sceptics are concerned with the cases

where there is genuine legal uncertainty. In

most other cases, there is no problem with

the issue of the application of the law

o 2) If Hart is read as saying that verbally

formulated rules prescribe determinate

outcomes in most cases quite apart from any

such background of shared values, that would

be overly simplistic.

We place reliance on a host of takenfor granted assumption. As an


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example, even the deceptively simple

phrase Dogs must be carried on theescalator relies on a shared

understanding of underlying issues.

o Lon Fuller argued that we always interpret rules in light of our

understanding of their purpose. Example of the rule prohibiting vehicles in municipal

parks. Would a lorry a group of veterans wished to

establish as a war memorial be problematic. After all, the

rule is presumably aimed at eliminating pollution and the

hazards of traffic. The lorry would cause none of this.

BUT Hart argues that there is nothing in the rule of law

guaranteeing that the relevant purposes of the rules are

moral purposes.

BUT Simmonds argues that there are other important

jurisprudential questions to be answered here. In

particular, the purposes served by legal rules are far from

transparent

Distinguishing cases

o A further range of considerations applies to case law, where no

such authoritative formulations are to be found

o How do judges decide when to narrow the rule laid down by

earlier cases, or to reformulate a rule by creating a new exception.

o How can judges be bound by rules if they can also alter the rules?

Harts solution appears to depend on saying that theformulation of a settled rule of case law is always relative to

a particular context of application, and the occurrence offuture cases may always render the rule to that extent

unsettled

BUT Raz argues that judges do indeed have power to alter

the rules, but the power is consistent with the rules being

binding, in so far as the power is a limited power.

Raz suggested that the relevant power was limited

insofar as it could be exercised only for certain sorts

of reasons

o Problem here is that any account of the

relevant reasons that is sufficiently broad to

explain the practice of distinguishing and

narrowing rulings is likely to encompass all of

the reasons on which a a court may

legitimately act quite apart from the binding

force of specific rules

Raz suggested that it was limited by the form that

alteration can take: It must consist in the addition of

a new exception to the rule

o BUT this fails to explain the way in which

judges can fundamentally reformulate rules

in a way that cannot be analyzed as theaddition of an exception


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Think about tort law for example,

Neighbor test, two stage test, three

stage test

Dworkins theory says that judges alter the more specificlegal rules, but do so in the implementation of deeper legal

principles, not at their discretiono Significant debate on this issue:

The dependence of our practical reasoning upon a never-

fully-articulable background understanding is a most

significant fact which has been explored by philosophers

Legal obligation and the internal point of view

o IF we accept that laws are posited rules emanating from

authoritative sources, no rule counts as law simply because it is

just and reasonable.

It MUST also have the authority of the law-making body

BUT might the authority of a law making body not bea matter of the morally binding force of that bodysdecree?

Kant argued in the metaphysics of morals that even

in a system of wholly posited laws, one would still

require a basic natural law that established the

authority of the legislator

But Hart wants to resist such arguments and argue that

legal discourse does not assume any particular moral

attitude towards law

After all, judges often talk in the language of rights,

duties, ought, etc. Furthermore, isnt the internal point of view also a

certain sort of moral imperative?

o Hans Kelsen emphasized the contrast

between reductive approaches to the legal

order that treat it as an apparatus of

systematic coercion and the lawyersdistinctive point of view that regards law as a

body of valid norms (????)o Kelsen assumes that valid means ought to

be obeyed BUT Hart rejects this judgment, views

it as a rule that satisfies all the criteria

provided by the rule of recognition

o Rule of recognition itself is neither valid nor

invalid. It just IS.

o Hart rejects conclusion that propositions

about legal rights duties and validity are

morally binding

Argues that it could be grounded in

non-moral considerations such as

considerations of long-term selfinterest


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But its not a complete defense, simplya partial one. There might be cases

where judgments are indeed moral

oughts, rather than being based upon

non-moral considerations

A different positivismo The claim that legal obligation is a type of moral obligation is quite

consistent with the positivist idea that law is law, just or not.

Since the basis of of the moral obligation lies in the laws

publicly ascertainable nature, the claim is also consistent

with the idea that laws must emanate from authoritative

sources, and that being just is not enough to make a ruleinto law.

Since any moral obligation may be overridden by

conflicting obligations, the claim that legal obligation is a

type of moral obligation is also consistent with the idea thatlaw is never completely conclusive of what we morally

ought to do: there may be circumstances when it is our

moral duty to break the law

The conclusion we are now considering is that the internal

point of view is best understood as a particular moral

attitude towards law: not necessarily moral approval, but

moral acceptance of the general obligation to comply

Useful because it lets us see how even unjust laws are

necessarily, laws.

Harts point is that the refusal to ascribe moral force to a

wicked law might itself be seen as moral obfuscation ofdifferent issues. It amount to the idea that certain reasons

are inapplicable when in fact they may be applicable but

clearly outweighed

Rules and formal justice

o Why is law linked to morality?

The connection between rules and principle of formal

justice

Distinction between formal and substantive justice

o Justice in its formal dimension is the

consistent application of rules

BUT Dworkins objection is that their

legal right for the consistent

application of rules might also

constitute a moral right

The shared content of legal systems

Some positivists like Kelsen have concentrated on

the laws form at the expense of its content

Hart tells us that theories that have approached the

law in purely formal terms have been inadequate

Law as a tool for survival

Parallel to Finnis, who seeks to demonstrate theexistence of several objective goods by showing how


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they are presupposed by all of our practical

reasoning and practical understandings They

provide our intellectual access to the human world

of life and action

BUT is there perhaps a richer notion of human

flourishing, going beyond mere survival? The nature of conceptual analysis

o Law has a contingent, not a necessary connection with morality,

according to legal positivism

o Harts concept of law is one he constructs, not one that he simplydiscovers. It is to say that his construction is informed by a

broader POV that endows one feature rather than another legal

phenomena with significance

o Legal positivism as conducive to intellectual clarity, BUT this turns

upon certain evaluative criteria

o

Harts claims of legal positivism is grounded upon deeper sets ofclaims on human nature and circumstance

Harts theory as political philosophy

o Harts theory of law does not give a central role to sanctions

Necessary, but not an integral part of law

Ensure that the puzzled mans interest coincides with the

interest of general welfare

Harts readers could be forgiven for concluding that hisdiscussion of Austin that an emphasis upon sanctions

springs from simple conceptual error: but that is not the

case. Theories of law that have emphasized the importance

of sanctions have generally done so in consequence ofdeeper accounts of human nature and moral value

Possible that Harts account of law could theoreticallyprovide a central role for sanctions

Harts rejection of sanction based theories cannotultimately be based upon his opposition to

reductionism or any other purely analytical

consideration.

o Harts theory on justice Lawyers do offer their legal arguments as proposals for

how the law should be developed For Hart, deliberation over rival principles in penumbral

cases is a relatively marginal feature of the phenomenon of

law/ The most important aspect of law is revealed in the

multitude of situation where the content and applicability

are not in doubt

For Hart, his account of law is based upon the basic

value of survival

Legal doctrine and legal theory

o Harts view reflects the circumstances in which his theory waswrittenEnglish law has long had well-established rules defining

the sources of law and had enjoyed a stable and shared frameworkof ideas


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Legal theory might seem a matter of external reflection

upon the law

o BUT what if states are reflecting on new constitutional

settlements. Fundamental juridical questions cannot be

established by reference to well-established rules \

o

When questions concerning the sources of law are not resolvableby reference to the basic rule of recognition, Hart regards them as

amounting, in substance, to political questions where all that

succeeds is success

o Hart might be thought to igonore the layers of semiotic complexity

that make up the practice of law

BUT Hart is misguided if he sees himself as discovering an

essence or central case of law that enjoys intellectual

priority over the numerous other facets of significance

exhibited by the actual practice under investigation

BUT Hart is misguided in imagining that an account of the

practices core significance can be constructed from thedisengaged standpoint of an external observer

Chapter 6: Ronald Dworkin

Jurisprudence divided into:

o Analytical jurisprudence

Aim to clarify understanding of law without offering any

normative guidance

o Normative jurisprudence

Offer normative guidance as to what ought to be done

Rules and principles

o

Dworkin challenges the general picture of law and legal reasoningin the case of Riggs v Palmer.

o In Riggs, a probate suit, the plaintiffs, Mrs. Riggs and Mrs. Preston,

sought to invalidate the will of their father Francis B. Palmer;

testated on August 13, 1880. The defendant in the case was Elmer

E. Palmer, grandson to the testator. The will gave small legacies to

two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of

the estate to Elmer Palmer to be cared for by his mother, Susan

Palmer, the widow of a dead son of the testator, until he became of

legal age.

o

Knowing that he was to be the recipient of his grandfather's large

estate, Elmer, fearing that his grandfather might change the will,

murdered his grandfather by poisoning him. The plaintiffs argued

that by allowing the will to be executed Elmer would be profiting

from his crime. While a criminal law existed to punish Elmer for

the murder, there was no statute under either probate or criminal

law that invalidated his claim to the estate based on his role in the

murder.

o Shows that:

Rules apply in an all or nothing fashion. Principle gives a

reason, but not a conclusive reason. Mainly becauseprinciples conflict


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Valid rules cannot conflict. Legal system have doctrinal

techniques to tackle these issues

Principles must be balanced against one another

o In the case of Riggs, it shows that two principles rather than rules

of testamentary succession conflicting.

o

Courts change the rules on the basis of applying legal principles Principles and positivism

o Dworkinsattack is that a principle may already be a legal

principle even though no court has ever formulated it or laid it

down as a principle.

o We can identify these principles by consulting certain sources

o Strategies for reconciling with positivism:

May argue that principles are indeed part of law and can be

recognized as part of a rule of recognition

Discretion and rights

o

Dworkin must offer compelling reasons as towhy principles should be a part of existing

law

BUT if the positivist takes this view of

the case that principles are not part of

law, then he either accepts that:

1) Riggs v Palmer was wrongly

decidedWould then have to consider

whether all other cases are wrongly

decided

2) Judges may legitimately alter the

legal rules where they conflict withdesirable social policies or moral

valuesBut that would mean that the

rule of recognition doesnt apply since

he can choose to obey it whenever

he/she wants to

The positivist may also argue that these principles are not

part of law, and are part of an extralegal consideration

The rule of recognition and the soundest theory

o Criterion, according to Dworkin, that distinguishes legal from non-

legal principles is that a principle is a legal principle if it forms apart of the soundest theory of law that could be offered as

justification for the established rules and institutions in a

particular institution

How do you decide if a principle forms the soundest theory

of law?

Must decide for himself which body of principles

best justifies established law

Deeply contested ideas here even between

constitutional lawyers

BUT Harts response is that there is no necessary but simply

contingentconnection between morality and lawUS andUK constitutions as examples


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Constructive interpretation

o Dworkin rejects Harts distinctions of: 1) Analytical vs normative jurisprudence

Dworkins view is that Hartian enterprise of

conceptual clarification lacks an intellectual point.

o

When people ask what is law, unless anduntil it is connected questions concerning our

moral duty to obey the law

2) Separation between legal theory and applying law

Argues that as players involved, we must use our

legal theory to inform the application of law

Argues that debates of legal theory are interpretive

disputes

Our views on what law is informs our views on what

specific laws should be

Dworkin, by contrast, sees legal theory as reflectingupon the nature of law not as part of some general

intellectual inquiry but as part of our reflections

upon the scope of a presumed duty to obey and

apply the law

Criticism: Dworkins pre-interpretive instances

based upon a rule of recognition for the instances to

be identified

o BUT misguided because we might not

actually possess general views as to what

makes these instances law/principles in the

pre-interpretive stages

Dworkins criticsInternal and external sceptics

o Internal sceptics

Concerned to challenge its applicability to particular

contextDifficult to find that the law embodies a certaincoherent set of values

o External sceptics

Amounts to the argument that values are essentially

subjective

BUT its the same weakness with subjectivism of

moral judgments One CANNOT make moral claims with apparent

seriousness while denying that those claims are true

The threshold objection

o Understanding of laws nature should place law in a broader socialand historical context

o Dworkins view of laws social context is particularly relevant

given his ultimate conclusion about laws nature Expresses a deep conception of equality and makes the

society that it governs into a genuine community

Choosing a legal theory


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o Dworkin proposes that the most abstract and fundamental pointof legal practice is to guide and constrain the power of

government

Differing legal theories would offer differing interpretations

as to why this might be the case. Perhaps because:

Give fair warning of the circumstances wheresanctions might be ordered

Ensure that citizens are being treated equally?

Conventionalism offers the idea that law turns upon the

notion of fair warning

Judges should decide cases in accordance with rules

identified by reference to a basic convention

Should NOT treat as law ideas that they consider to

be implicit in the system of rules

BUT Dworkin criticizes such a theory on the grounds

of fit and appealo IF conventionalism is concerneced to give fair

warning and avoid the defeat of expectations,

then the conventionalists should be unilateral

conventionalists. This means that when they

can invoke a clear rule, judges should favor

their claim

BUT this theory does not fit becausewe know that judges do advance new

rules and remedies

The solution from conventionalists might be to argue that

fair warning is important, but it is not the only calue, for itis also important that the law should respond to new

demands and grant new remedies.

If NEITHER side has a clear rule in their favour, the

court can have consideration as to the issue of

flexibility

BUT Dworkin thinks it better if we balance these

values on a case by case basis a.k.a. adopt a

pragmatic approach

o BUT pragmatist does not fit because it

would mean that judges can decide cases on acase-by-case basis, THUS depriving

individuals of legal rights

Law as integrity

Hold on to a consistent set of principles, do not

invoke other principles simply because it might

serve their interests to do so

The totality of the law is not according to law as

integrity, available in an explicit form, for law

includes principles that are merely implicit and that

can be discerned only by an exercise of private

moral judgment


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o When we are governed with integrity, we are

treated as equals, the same principles are

applied to all of us. When we are so governed,

that form of governance makes us into a

community

Checkerboard abortion case given asan example

Lacks principle and people must either

admit that such a rule lacks principle

or find that there is nothing wrong

with that

BUT as Fletcher argues,

unprincipled compromises,

apparently lacking in integrity

are not uncommon in

constitutions and legislations.They represent the most that

people can agree upon at a

particular moment of history

BUT Judges and courts as a

forum ofprinciple? Shouldntthe legislative branch have a

larger say here?

BUT we also see a tendency for

Dworkin to take for granted an

unproblematic continuance of

peaceful and orderly societies,within which these debates can

take place. Even within a liberal

pluralistic society, where

people share little else besides

rules and entitlements, how

can they share the same

values?

BUT, as Roberto Unger has

argued, there is a drive

towards systematic closure andabstraction that transformsordinary purposive judgments

into prescriptive theory-like

conceptions of whole fields of

law and social lifeMight this

not be too rigid, thus

precluding political change

Order, theory and community

o If the law is not to be infected by moral disagreements, it must be

possible to ascertain the content of existing laws in some relatively

uncontentious matter


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BUT can Dworkins theory of law as integrity fit thisrequirement?

After all, the precise way in which sources feature

will also depend upon the judges viewpoint

IF judges as a whole reflect the moral diversity of

society, will the law not fail to provide the necessarylevel of certainty and stability

Chapter 7: Lon Fuller

The story of Rex

o Jurisprudence is an attempt to make coherent sense of our settled

understandings concerning rights

Justice according to law VS justice embodied in law

Our understandings of law diverge very significantly

o Highlights the key issues that law must be:

Published

Prospective

Intelligible

Not contradictory

Possible to comply with

Reasonably stable through time

Followed by officials

o The story reveals to us that

Law is a purposive human activity

Reflection upon the attempts to create a legal order

will deepen our idea of the understanding of law

Fuller is closer to Aristotle; worldly traditions ARE

relevant in our understanding of morality Facts, values and purposes

o Harts positivism states Like other forms of positivism my theory makes no claim

to identify the point or purpose of law and legal practices as

such I think it quite vain to seek any more specific

purpose which law as such serves beyond providing guides

to human conduct and standards of criticism of such

conduct BUT a desire to establish rules for the guidance of conduct

would itself be based on a more fundamental/underlyingphilosophy

o So far as a great many questions about the justice or injustice of

law(external morality) is concerned, fuller does not dispute Harts

view that the law may or may NOT serve justice

o BUT Fuller claims that there are also values internal to the law,

which we also apply in determining whether a legal system is good

or not

Conceptual structure

o Inner morality of law is chiefly a law of aspirationVaryingdegrees of excellence and unworthiness

o

Fullers argument involves two steps:


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Demonstrate that the concept of law is best understood as

structured by the archetype of full compliance with the

eight requirements

Show that full compliance with the eight requirements is a

moral ideal

Moral purposeso The enterprise of subjecting human conduct to the governance of

rules

o Fullers theory is similar to the natural law idea in that systems

count as law in virtue of their approximation of the ideal of

compliance

o Fuller sees some intrinsic moral value in the purely formal and

procedural aspects of law, quite apart from the laws substantive

content

o Fullers arguments are deemed unconvincing in demonstrating

that the compliance with the eight precepts do indeed count asintrinsically moral

Wicked regimes

o Real question is whether a wicked regime would have good reason

to comply with the eight precepts for the attainment of both good

and evil goals

Simmonds argues that wicked goals can be pursued

through law

The value of the rule of law

o Would the rule of law values be valuable in the context of an

oppressive regime? (Say the consistent application of unjust

rules?) Some jurists react by inserting a richer content into the

value of the rule of law(Think Bingham)

BUT the more we inject a rich content into the ROL,

the less the notion seems to grounded in the concept

of law as such

Distinct from the concept of law because of the

injection of such content

The more that our notion of ROL becomes detached from

the general concept of law, the more arbitrary will seem our

decision to give this or that particular content to the ROLo Simmonds argues that complying with the eight requirements

would be of intrinsic moral value

Obedience towards the Rule of Law creates domains of

liberty

To the extent that one is governed by the ROL, one will

enjoy certain domains of protected optional conduct that

are independent of the will of anyone

Simmonds argues in Law as a moral idea that justice and

legality stand in a rather complex relationship. They are

indeed distinct values and frequently compete

BUT for the two values to be fully realized, they need towork in conjunction


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Guidance by rule and by aspiration

o Both Dworkin and Fuller make sense of legal practices by

proposing a shared goal or aspiration. Hart makes sense of legal

practices by proposing a basic rule, specific to each system

o Dworkin and fuller regard the questions of legal theory as entering

and forming a part of law. Principle and change

o Fuller never really arrived at a convincing answer of the inner

morality of law.

o Simmonds argues that Fullers argument can be extended byviewing it as providing freedom as independence from the power

of anothero Fullers eight requirements connects us with the need for stable

expectations

o Suggests that in fact, a system of rules that does not change might

be the PERFECT embodiment of legality. Represented the ideal of rulers at the very origins of

western legal thought

o Matthew Hale view of the common law grounded in historical

community and on the integration of each individual part of the

law into a coherent whole

Chapter 8: The analysis of rights

Analytical jurisprudence of rights aims to answer the question of what it

is to have a right

o Prima facie observation: Rights seem to possess peremptory force:

they cut short debate and preclude balancing of other

considerationso Different approaches place different emphasis on the force of

rights

Utilitarians think of rights as being important for the

greater good they bring about

Other think of the benefits of rights in allowing for differing

conceptions in a liberal society

Nozick thinks rights as side-constraints that trump

considerations of utility

Raz thinks similarly that rights have peremptory force, but

they are not conclusive. These peremptory forces areexclusionary by kind, not by weight.

Legal vs moral rights

o What is their relationship? Which to start with?

Better to start with legal rightsMoral rights. Do legal

rights have any basis.

Kant Positive laws can serve as excellent guides

Hard atoms and soft molecules

o Two issues:

Peremptory forces of rights (PF)

Internal complexity (IC)

Regard rights as complex molecular structuresserving as intellectual nodal points in our legal and


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moral deliberations, and from which diverse

conclusions may be drawn

Contrasted with the view of rights as atomic

elements whereby we may report the settled

requirements of law or justice, but which do not play

a central part in our deliberations upon contentiousor moral issues

Kantian view ascribes both IC and PF

Hohfeldian view gives rights no IC but PF

Raz/MacCormick view gives rights IC but no PF

Kantian view

o PF

Rights linked to the justified use of coercion

Free speech right means the right to coercion to

prevent others from interfering with my right and

the right of others to coerce me into not speaking isunjustified

Coercion is wrong if its interferes with freedom;

justified if it maintains equal freedom

o IC

Legal rights function as nodal points within legal reasoning,

enabling lawyers to draw complex conclusions from

apparently simple premises

A slight digression

o Hard to reconcile the principle that all interferences require

justification with the principle that the presence of a malicious

motive should not rob an action of its legality Hohfelds analysis

o Various rights can be reduced to four different notions

Claim-rights

Liberties

Powers

Immunities

Documents

Central Issues in Jurisprudence