Hart (I) Class V Hart (I)
Three persistent concerns: o How does law differ from commands? o What is the difference between legal and moral obligation? o What are ‘rules’? Hart: First proposition of law is that it is ‘non-optional’ ‘Obligated’ and ‘Obliged’ o Hart: no obligation (duty) to give money to a gunman; merely ‘obliged’ by force o ‘Obligation’ distinct from ‘obliged’ (compelled) One may be ‘obliged’ (through force) while not ‘obligated’ (by duty) Law as an ‘obvious system of rules’ o Obedience to the law as normative, not purely defined in terms of compulsion o Distinction between habits and rules Law as subset of ‘rules of behaviour’ Within ‘rules of behaviour’, two categories: o Social habits o Social rules Both characterised by convergence of behaviour o No expectation of ‘requirement’ Distinguished by responses to deviation o If non-conformity invites criticism (non-physical sanction), may still be a ‘rule’ o Hence, Hart characterizes removal of hat upon entering church as a ‘social rule’ Hart: Existence of a rule justifies, rather than predicts, occurrence of sanctions Social rules: elements o Internal o External To be ‘rules’, criticism must be due to the breach of the rule itself, not other causes for justiciable criticism Internal element: sanctions imposed ‘because it’s a rule’, not the merits of the conduct in breach o Essential to all rules o Hence, lack of ‘critical-mental’ component Realist perspective on rules: purely predictive of sanctions o Hart: Rules are both predictive and normative (following Kelsen) e.g. stopping at red traffic lights Both predictive (high probability that cars will stop once red light begins) and normative (red light causes cars to stop)
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Hart (I)
o Internal view: laws obeyed not solely due to compulsion (‘prudential reasons’), but normative pressure (societal demand for uniformity) Austin takes a solely predictive, not internal, view. o Internal view: obligation to follow law-as-law (not upon its merit, but because of its nature as law), not merely ‘obliged’ (forced) to do so To sum up: o Rules are distinguished from habits by their internal element o Internal element: reasons for action Obedience on normative, not prudential, grounds Obedience to laws because laws, not because laws are justified or self-advantageous o Habits lack an internal element. Hart on Legal Rules o A form of social rule o Must be backed by social or customary rules ‘Pedigree’ Social rules must authorise law-making body (legislature) to make valid laws o Basis of laws in social rules authorizing the law-maker thereby circumvents the existence of the ‘sovereign’ (a pre-legal concept) Hart: Rules as demands for compliance and/or renunciation or sacrifice, necessary for social functioning Power-conferring rules o Hart: ‘Secondary rules’, speaking ‘to the system’ (on its own regulation) and conferring power on decision-makers e.g. Constitutions Secondary rules have no place in Austin’s scheme Flaws of primary rules alone (as in primitive (pre-legal) societies) o Uncertainty: What are the rules? Which rules take priority in cases of conflict? Which norms are ‘rules’? o Stasis: How can rules be changed? Rules may be ill-adapted to a changing society or sudden crises (such as, in the context of pre-legal societies, a drought or invasion) o Uncertainty How are disputes resolved? How are rules enforced, and who by? Secondary Rules: Resolutions to the Problems of Primary Rules o To resolve uncertainty: ‘Rule of recognition’ Establishes criteria of valid law o To resolve stasis: ‘Rule of change’ Establishes mechanism for change 2
Hart (I)
o To resolve inefficiency ‘Rules of adjudication’ Secondary rules as ‘parasitic’ upon primary rules. Aspects of Rule of Recognition: o Criteria of valid laws o Limitations on valid laws o Hierarchy of laws (customary, common, statute) In the Indian context, ‘rule of recognition’ derives from a variety of sources, both written and unwritten (constitution, case-law, customs) Rule of Change o Process of amendments to laws o Whether court decisions may be overturned and by whom o Ways of changing legal duties and primary norms (e.g. contracts, marital arrangements) Rules of change are not only amendments; they include rules for changing duties between individuals Generally, duty-conferring rules are primary, power-conferring rules are secondary o Exception: the appointment of judges, a secondary rule which also imposes (inherent within it) a duty-imposing aspect upon judges Hart later acknowledges such ‘hybrid’ powers Hart’s theory of judicial law-making o Every word contains a ‘cone of certainty’ and a ‘penumbra of doubt’ Hence, in 95% of cases, the judge may easily apply ‘certainty’ Only in exceptional cases will the penumbra apply; otherwise, elite judges may override the popular will Foundations of the Legal System o Austin: No ‘legal system’ beyond the de facto power (arising from habitual obedience) of the sovereign o Hart: In cases of general convergence, secondary rules provide for recognition of valid laws Equivalent to Kelsen’s grundnorm Unlike Austin, habitual obedience of private citizens is insufficient System of habitual obedience may break down (banditry, anarchy, etc) but without the breakdown of the system at large Rule of recognition grounded in social custom and broad popular acceptance
Class VI Hart (II)
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Hart (I)
Relationship between validity and efficacy o Distinct yet related: ‘external/internal’ framework Efficiency is an external statement Validity is an internal statement Distinct from Kelsen, who made no such reference o ‘The normal use of internal statements is in such a context of general efficacy. It would however be wrong to say that statements of validity ‘mean’ that the system is generally efficacious.’ o Validity must be determined by reference to the Rules of Recognition Which must in turn be justified by the chain of validity Validity does not derive from efficacy o Validity, being internal to the system, can only be understood by reference to the Rule of Recognition Whereas efficacy need not be determined by reference to the Rules of Recognition, being external Rule of Recognition and the Grundnorm o Rule of Recognition derives legitimacy from agreement amongst officials as to its existence o Unlike grundnorm (a presupposition), the existence of the Rule of Recognition can be proven as an empirical fact Hence, Constitution is only effective due to agreement among officials as to its existence Efficacy (among the general public) is a much lower threshold than the degree of consensus (among officials) necessary to give rise to a ‘rule of recognition’ When does a legal system exist? o Two necessities: General obedience to primary rule (external) Acceptance of secondary rules as valid by officials (internal) o Hence, de facto obedience of primary rules (habitual obedience) is necessary but not sufficient Officials recognise secondary rules by consensus Official recognition is internal, not external (and hence higher threshold than efficacy) o Hart makes no reference to normativity with regard to validity: the consensus of officials need not be normative The consensus gives rise to validity, with the Rule of Recognition only arising from such o In an ideal legal system, normative aspects would play a role; in practice, however, prudential reasons for obeying the law (in light of its efficacy) may give rise to a legal system in practice Parallels to Austin’s notion of habitual obedience To Hart, a legal system based purely upon non-normative efficacy may still be a legal system ‘weak legal system’ Two forms of breakdown of legal system: o Breakdown of obedience of primary norms (external)
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Hart (I) Does such amount to the end of the legal system, absent any breakdown in consensus among officials? Legal system may weather brief breakdowns of popular obedience without ceasing to exist But only if there is a considerable chance of the restoration of order Legal system may only collapse if there is no chance of the restoration of order. o What if the second requirement collapses? Harris v. Donges (South Africa) Parliament and courts took differing views of the powers of the legislature Legislature created special appellate court to overrule adverse decisions of lower courts Lower courts ruled creation of special appellate courts invalid, ultra vires powers of legislature Perfect consensus among officials is not necessary; a ‘complete breakdown’ of consensus among officials requires a challenge to the fundamental validity of the system Legal systems in transition o If England had not recognised Indian independence, would India have a ‘legal system’ in the Hartian sense? So long as: General obedience Consensus among Indian officials o Then there is a ‘legal system’ in the Hartian sense. o Existence of a legal system is a purely factual inquiry. Secondary rules o Rules of recognition o Rules of change o Rules of adjudication Existence of secondary rules allow non-efficacious rules to remain valid Secondary rules allow for distinction of laws from other normative systems (grammar, religion, etc) o Scott Shapiro (theorist on rule of recognition): Other systems (e.g. corporate rules of association) may have primary and secondary rules; however, law is one of the few. Officials discover, rather than make, the rule of recognition Rule of recognition as ‘ultimate rule’ o With ‘supremacy as one of its criteria’ o Rule of recognition is a social fact; it does not derive its legitimacy from anything else Substantial debate as to its sources, and whether it may arise from judicial practices o To Kelsen, presupposition of validity of grundnorm
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Hart (I) o To Hart, rule of recognition arising from actual legal practice Class VII Critiques of Hart
Strong role of ‘officials’ in determining validity of law o Secondary rules arise from consensus, not independent norms Such consensus need only be of ‘officials’, not citizens o Who are ‘officials’? o What amounts to ‘consensus’ as to the rule of recognition? o Is it not circular? Officials determine (by consensus) the rule of recognition which validates the laws which in turn give rise to their status as ‘officials’. o Hart’s theory denies a role for the citizens in determining the internal validity (as opposed to external efficacy) of the legal system o Are judges merely ‘officials’, or do they occupy a distinct role? If so, what of ordinary administrative decision-makers? Coleman: Officials are those who created the ‘primary consensus’ necessary to give rise to norms o However, how can such a historical consensus give rise to lasting norms? ‘Ought’ cannot arise from ‘is’ (in Kelsen’s view) Methodological flaws: ‘Whig view of history’? o Hart’s account of the transition from pre-legal to modern legal systems is largely artificial (and superficial) o Elitist view of history o Anthropology reveals intricate models of governance and law in supposedly pre-‘modern’ societies o Green’s counter to such criticism: pre-legal systems are in fact perfectly adapted to their societies; more sophisticated rules are not needed Hart does not consider complex rules of law necessary for ‘civilization’ ‘Anti-essentialist’ perspective Primitive systems merely defective by virtue of inapplicability to complex modern societies No normative ‘judgment’ of primitive legal systems as ‘inferior’ to modern systems; different systems suited for different needs Hart self-styles his work and methodology ‘an essay in descriptive sociology’: is such the case? o Roger Cottrell: Hart’s approach is ‘selective empiricism’, not sociology o Hart understands law as ‘social constructions’ Laws understood in terms of common consensus as to their meaning (particularly in terms of internal aspects) 6
Hart (I) No ‘natural’ or ‘given’ basis to laws Laws ultimately products of history akin to Austin’s constructivism: law is a deliberate construction, lacking any independent basis o Kelsen, by contrast, rejected constructivism: he did not seek to understand law as a product of history, but rather as a product of the grundnorm Validity of the grundnorm, unlike the rule of recognition, is not rooted in history The rule of recognition can be empirically proven (by reference to history); the grundnorm cannot. o Geren: Why is law a social construct? It has a history; It has no definitive paradigm model; primary-secondary rules division is not a universal rule, but solely applicable to modern legal systems Coleman: In Hart’s model, ‘rules create the sovereign’ o Hart grants to secondary rules an authority over even the sovereign, given their capacity to validate the sovereign’s power o Legal rules gain authority from social customs (of which they are a subset), not their origin as directives of the sovereign Hart and Hermeneutics o Hart characterizes his work as an exercise in hermeneutics o Hermeneutics: theory of interpretation o ‘Internal approach’ to understanding law: does this render outside approaches to understanding law (such as academic study) impossible? Can laws only be understood by insiders committed to that system? How is an insider defined – as a law-abiding citizen or the ‘bad man’? ‘Bad man’ theory of law o Law as predictive account of consequences for those who break the law ‘Detached normative statements’ (Raz) o Solution to how those who do not believe in the normativity of the law may identify its internal rules e.g. seditionists, foreign academics o Outsiders may identify rules of legal system by recognising the perspective of internal participants (those who subscribe to its norms) Detailed normative statements: One may recognise that others subscribe to norms without subscribing to such norms oneself o Hence, commitment to the system not necessary to comment on the system ‘Penumbra of uncertainty’ o Hart: allows for judicial discretion
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Hart (I)
o Rejected by Dworkin as contradiction within Hart’s system: an exception to Hart’s general principle that all laws contained within primary and secondary rules Dworkin, by contrast, views laws as a combination of rules and principles Riggs v. Palmer o Murderer denied right to inherit from his victim o Dworkin: Application of legal rules (of inheritance) limited by principle (that one should not benefit from one’s wrongdoing) o Dworkin, interpreting Hart: Rule of recognition may also include ‘moral criteria’ for valid law despite lack of evidence in Hart’s text to assert such in Postscript, however, Hart concurs
‘Practice theory of rules’ Practice theory of rules o Practice aspects of a rule (convergence of behaviour): society generally conform to a rule persons not conforming are criticised such criticism is viewed as justified based on the rule o Two tests of rule: convergence of behaviour/practice aspects; and internal aspect o Dworkin: Criticises theory that rules must first manifest as practices Dworkin: Moral duties are not determined by broader convergence of behaviour; e.g. vegetarianism, abolitionism o In Hart’s theory: convergence of behaviour is not necessary to give rise to validity of laws; ‘internal’ consensus giving rise to rule of recognition is sufficient Hart conceded: practice theory is not a sound guide to morality o However, continued to profess its worth with regard to ‘conventional rules’ and practices o Conventional practices: practice arising from rule and social practice e.g. driving on the left side of the road o Concurrent practices: practices independent from rules e.g. moral principles prohibiting torture o Practice theory limited to conventional practices (including rule of recognition)
Class VIII
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Hart (I) Inclusive and Exclusive Positivism Exclusive positivism o Denies that morality may ever form part of a law’s rule of recognition o Shapiro on exclusive positivism: Law has inherent authority; if moral terms are imported, the distinction between practical reason and obedience to law-as-law on its own terms disappears Law’s ‘claim to authority’ (absent moral justification) requires ‘exclusionary reasons’ for action Law’s authority must pre-empt (exclude) the reasoning behind said laws Law must, to be law, pre-empt (exclude) all practical reasoning o Raz: Law is authoritative when no other reasons save the law feature in one’s decision to abide by the law o Raz: Inclusion of moral criteria within the law reduces the certainty and identification of the law (a spur to arbitrariness) ‘Pedigree’ as a check on tyranny o Raz: No prima facie obligation to follow the law ‘Authority’ interpretation of law merely for the purpose of identifying laws, not establishing any moral duty to ‘obey’ the law Scott Shapiro: o Recent commentator on Raz and Hart o Raz’s requirement of absolute exclusion of all other criteria is difficult to meet o Law’s ‘guidance function’ is precluded by any inclusion of moral criteria (which prevents the identification of the law) Inclusive positivism o Denies the absolute applicability of the above rule to all legal systems at all times o Lack of moral precepts is hence not a necessary defining feature of the law o Certain legal systems may choose to include moral criteria in their Rules of Recognition o ‘A claim that standards of political morality (terms used to criticise social institutions) can and do figure in attempts to determine and identify the existence of valid laws’ Brian Bix: Three situations in which moral criteria may figure into the rules of recognition: o exclusion of rule going against popular morality o inclusion of rules of morality as rules of law o interpretation of rules in one way rather than another according to prevailing morality o riminal law How does Raz explain the use of moral criteria? o Raz: Judges may use moral criteria, but such does not render moral criteria part of the law Dworkin: How can judges interpret and apply anything save the law? 9
Hart (I)
Raz: Judges regularly interpret and apply non-law sources (foreign law, company charters, etc) o Green: Judges may express reasons for their decision in many ways, including citation of moral principles as binding; however, such is mere ‘rhetoric’, disguising exercise of discretion by citation of (fictional) ‘obligations’ to apply morality o Application of moral principles (such as ‘one should not benefit from one’s own wrongdoing’) for the first time amounts to creation of the law Subsequent application amounts to the use of pedigreed prior authority, not moral principles Raz identifies rule of recognition largely in terms of ‘identification function’ o Coleman and Waluchow: ‘Validating’ function similarly crucial to rule of recognition Coleman and Waluchow: Rule of recognition largely important to officials, not ordinary citizens (who rely upon professionals to identify law) Fred Schauer and ‘Neopragmatism’: o The adoption of a legal school of thought should depend upon their consequences in particular circumstances.
Natural Law
Fundamental concepts: o inalienable natural rights o transcendental, universal ‘law of nature’, cognizable by reason o ‘morality of aspiration’ (external morality) o Deontological (non-consequentialist) v. teleological reasoning Major thinkers: o Lon Fuller o St. Thomas Aquinas o Locke o Cicero Cicero, De Legibus (‘On the Laws’) o ‘True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting, it summons to duty by its commands, and averts from wrongdoing by its prohibitions.’ o ‘It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed.’ o ‘We cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an expounder or interpreter of it.’ o ‘One eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.’ o ‘Law is the Highest reason rooted in nature which commands things that must be done and prohibits the opposite.’ o ‘Let us begin from that highest law, which was born aeons before any law was written and indeed before any state was established.’ 10
Hart (I) o ‘Law is derived from ‘choice’. But… we must sometimes speak in popular terms and call that a law which prescribes in writing what it wants by ordering or forbidding.’ ‘Choice’ used as synonymous with ‘reason’ o ‘Since there is nothing better than reason, and it is found in both humans and God, reason forms the first bond between human and God.’ o ‘The most stupid thing of all… is to consider all things just which have been ratified by people’s institutions as laws.’ o ‘What is right and true is also eternal and neither rises nor falls with the texts in which legislation is written.’ Laws passed by legislatures are only ‘by courtesy’ and ‘in popular usage’ known as laws o ‘Bad’ laws are not laws at all: ‘nor, even if the people approve it, will something harmful in a nation be a law of any kind.’ Class IX Natural Law Cicero o o o o
Law as ‘true reason’ All other (temporal) laws are solely known as laws out of ‘courtesy’ Legislation abrogating the ‘true law’ is invalid A doctor prescribing poison would not be regarded as a ‘doctor’ at all; similarly, laws contrary to right reason are illegitimate o ‘Temporal’ legislation, regardless of history or context, is only of value insofar as it subscribes to universal ‘right reason’ o ‘Political’ perspective on the law: concerned with what politicians can and cannot do to the law
Aquinas (I) St Thomas Aquinas o Catholic theologian; religious perspective on natural law (as defined by ‘divine will’) o Context: medieval Europe (feudal absolutism) ‘Moral philosophy’ o Finnis: Concerned with what acceptable choices humans can make o Law understood both as instrumentality and deontological (as an end in itself) o Is a teleological perspective on natural law a contradiction in terms? Moral philosophy (Finnis): Principles directing individuals towards human fulfillment (consequentialist/teleological end of law) and virtue (deontological end of law) Hence, moral philosophy both teleological and deontological Aquinas’ Philosophy o Universal truths of what is right and what is wrong (pace Cicero) 11
Hart (I) Some truths are accessible by reason; some require clarification through scripture; some can only be accepted through faith, not reason o Principles of Practical Reason Guidelines for behaviour First Principle: Good should be pursued, and evil avoided Principles derive from ‘natural inclinations’ Hence Hume’s objection to natural law: derives an ‘ought’ from an ‘is’ Codes of behaviour should not arise from pre-existing codes of behaviour o Response: human behaviour is already derived form norms; ‘nature does nothing in vain’ Existing ‘is’ has an ‘ought’ (normative) basis Linked to ‘moral principles’, although (pace Finnis) this relationship is unclear o Aquinas’ legal philosophy forms only one component of his theological perspective Existence of God implicit assumption in Aquinas’ work Aristotle’s Influence on Aquinas o Man as a ‘naturally political’ being, drawn to live in communities unlike Cicero (who envisaged a universal community), Aquinas believed in two discrete forms of community: secular (state) community spiritual (church) community o Limitations on government/state power according to natural law: states bound by moral standards, including justice states bound by laws establishing legitimate authority o Monarchs should govern in conjunction with elected aristocratic advisers although does not endorse full democratic government endorses ‘mixed’ government blending monarchy, oligarchy and democracy State cannot derogate from power of the church over religious matters, not vice-versa with regard to political or public matters. Aquinas envisages ‘limited’ government, not inferior (nor subordinate) to the Church Aquinas’ ideal of ‘law’: o ‘Binding’ rules informed by reason o First principle of action is ‘reason’; dictate of reasoned conduct takes precedence over written laws o Purpose of law: preservation of the wellbeing of a political community through common political action o Longstanding customs may also be recognised as ‘law’ as both ‘the community’ and representatives thereof may make laws
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o What if custom and legislation conflict? Custom preferred; may invalidate or alter statutory laws o Judge-made laws recognized as legitimate, but subordinate to statutory and customary law due to lack of established deliberative process and undue reference to one specific factual situation Forms of law (Aquinas) o Eternal law o Divine law o Human law o Natural law Eternal law o All the designs of God: physical laws of nature o Rational guidance of the universe (not just human beings) o Understood through scriptures (‘divine law’) Divine law o Explicit manifestation of eternal law through scriptures and religious texts Natural law o Such understanding of eternal law as may be discerned through human reason and experience Human law o Such statutes and customs as conform to natural law Otherwise, not ‘law’ at all’ Natural inclinations of man o Preservation of life hence, natural law tenet prohibiting all acts which endanger human life o Inclination to procreate Hence, natural law precepts provide for laws protecting marriage o Inclination to know the truth about God o Inclination to live in society Both tenets unique to mankind Hence, natural law seeks to limit ignorance and provide for knowledge Obligation to obey the law? o Practical reason may require different courses of action in different circumstances Hence, ‘single standard’ (natural law) may lead to different outcomes in different cases e.g. repaying debts where money paid will be used to wage war against one’s own nation One may establish exceptions within, or add to, such laws as are derived from natural law (in light of society’s changing requirements) o so long as consistent with natural law If mankind’s natural inclinations are virtuous, why have law at all 13
Hart (I) o To create a society in which one may follow virtue without adverse consequences o Virtue may be clouded by self-interest; law imposes discipline and imposes rectitude Class X Aquinas and Natural Law Restricted power of the State o Laws (made by oligarchs, not monarchs) must conform to divine law. Natural law derived from natural inclinations of human beings Why are laws necessary? o As a curb on self-interest o To facilitate a virtuous society (for the uncorrupted exercise of one’s natural inclinations towards virtue) J. R. Lucas on the need for law: o ‘The concept of law can… only be elucidated a social concept when men who are rational but not very rational, and who are moral but not very moral, live together.’ Aquinas and Coercion o Recognises coercion as an important part of law, but does not regard it as a necessary aspect As virtuous men will obey the law of their own accord Is the death penalty justified by natural law? o Natural law has been cited to both support and oppose the death penalty o Supporters: Punishment is not solely a deterrent; it serves to correct dysfunctions in society caused by excessive self-interest contrary to the social order created by natural law Those who exercise their will gain an unfair advantage over those who restrain themselves; punishment is justified in order to restore the social order Are unjust laws still ‘law’? o Representations of the community may make laws o However, such laws (determinatio, or the will of the leiglsature) only have moral authority if conducive to the common good and natural law derived from St. Augustine Not a predictive maxim; instead, an appeal to the moral will of the people o May rebellion thereby be justified? Aquinas: No obligation to dissent One may be obliged to obey unjust laws if the consequences of disobedience are more socially harmful Due to legitimizing disobedience of unjust laws based on personal conscience However, where persons believe that they may form a new legal order more in accord with natural law, they are entitled to do so.
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Hart (I) Very high threshold for justifiable rebellion Strong presumption in favour of preserving order (except in cases of extreme regime injustice) o Pragmatic consideration: not ‘is the current order unjust’, but ‘is there an alternate, more just, stable order’? Anarchy cannot be a just alternative.
1Class XI Social Contract Theory Rousseau Survival of the populace is possible only in a larger collective ‘Relative aristocracy’: rule by the few, drawn from the general populace o Only ‘inalienable right’ is right to participate in governance; no other limitations on state power Equality of all people ‘General will’ shall protect individual interests, but may coerce individuals into conformity o Rousseau’s ideal contrary to that of Locke o Locke advocates limited constitution protecting property rights o Rousseau regards only democracy as non-negotiable; no further preference for form of government Social Contract and Modern Constitutions o ‘We the people’: contract between people and the government formed by their assent o Bill of Rights: positive law imposing limits on other positive rights to deprive one of one’s rights
Natural Law’s Decline o Rise of science and decline of faith in the divine proved hostile to natural law theories. Such conditions also allowed for the rise of positivism. o Decline arrested by WW2 and Nazi atrocities Legal positivism had previously been dominant in Germany Such positivism alleged to allow toleration of Nazi policies; hence, post-war resurgence of natural law Modern natural law o Learned from failures of earlier natural law theorists o Two key exponents: Lon Fuller John Finnis While Finnis draws extensively on Aquinas, Fuller’s theory departs significantly from prior theorists
Lon Fuller 15
Hart (I)
Law is an instrumentality to promote justice. o Hence, law cannot be understood absent this purpose. o Even in identifying law or studying its structures, one must have regard to its purpose of justice. Hence, no separation between conceptual and analytical jurisprudence. Fuller: Positivism speaks of a ‘one-way projection of rules’ (that is to say, ‘top-down approach’ of sovereign imposing rules on populace) o Fuller rejects the above; instead, he argues that law consists of ‘reciprocal obligations’ between sovereign and subjects Positivism regards coercion as a necessary feature of the law. o Fuller: In modern legal systems, law can be understood absent coercive sanctions o Fuller emphasises duties upon the sovereign Procedural Morality o First discussed by Bentham, who Fuller claims as a forebear. o Fuller: ‘procedural morality’ overcomes concerns regarding relativism and morality in natural law Hence, may place limitations on sovereign power through ‘internal’/’procedural’ morality, without referring to ‘substantive morality’ Fuller on Morality o Subjectivity of morality has been key to natural law’s past failures o Instead, Fuller proposed ‘two moralities’: morality of duty morality of aspiration o Morality as a ‘scale’: morality of duty at bottom, morality of aspiration at top Where does morality of duty end and morality of aspiration begin? Dividing point between the two depends on subjective notions of justice, and is the study of the moral philosophers o Morality of duty akin to rules of mathematics or grammar: one correct answer. o Morality of aspiration akin to a well-crafted poem: subject to personal interpretation. o One will not be punished for failing to achieve morality of aspiration, whereas morality of duty is binding. o Morality of aspiration allows for creativity and flexibility; morality of duty requires absolute conformity and order. In common-law systems, the ‘pointer line’ dividing moralities of duty and aspiration is fairly ‘low’ (hence few binding ‘duties’) Fuller: Compliance with ‘morality of duty’ will give validity to the statute itself o Although Fuller confines such moral precepts to ‘inner’ or ‘procedural’ morality
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Hart (I) o Whereas compliance with ‘morality of aspiration’ will garner praise, but non-compliance will not affect the validity of the law Fuller’s ‘Inner Morality’ The Story of Rex o Rex enacts code; discovers it to be error-ridden, and hence refuses to publish it Decreeing that instead decisions will only be made case-bycase by the (secret) Code o In response to popular discontent, Rex announces re-evaluation of all prior decisions (but without prospective effect) o In response to further public discontent, the vengeful Rex changes time period for summons (10 seconds to appear, instead of 10 days) o In response to public revolt, Rex revises the law to be public (widely published) and practical o However, in interim, all other institutions had devised their own rules and interpretations of the law; in light of newly-public statutes, frequent amendments required o Rex appoints self as judge; his judgments bear no resemblance to the law as written, further confusing the true state of the law Fuller: Rex made no laws, due to failure to comply with internal morality ‘8 ways to disaster’ (Desiderata) o Ad hoc-ism o Failure to publicise o Abuse of retrospective legislation o Failure to make understandable laws o Contradictory laws o Laws that require conduct beyond people’s capacity o Frequent changes to law o Lack of congruence between laws as announced and laws as applied A breakdown in even one of the above-noted aspects is a breach of internal morality; the resulting ‘law’ is not ‘law’ at all. Fuller: Internal morality is a combination of duties of aspiration and duty o e.g. Requirements of ‘minimum of retrospectivity’ and ‘clarity’: impossible to ascertain exact compliance
Class XII Lon Fuller and ‘Procedural Morality’
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Hart (I)
Reconceptualises natural law without reference to ‘substantive morality’; instead, ‘internal (procedural) morality’ Law as series of reciprocal obligations Eight desiderata (principles of morality) o Generality ‘Antidote to ad hoc-ism’ o Promulgation Laws should be known publicly; no ‘secret laws’ However, what about non-written law (all factors playing important roles in adjudication)? How can such ever be ‘promulgated’? Extreme cases of Switzerland and Mexico, where all cases are conducted in public (yet decision-making remains private) Fuller: ‘Bizarre’ outcome for judicial deliberations to be public Laws should be made known to everyone, not just those directly affected Does not place any limitations on interpretation (so as to stay within the limits of available materials) How can a law be promulgated in a society with widespread illiteracy? o Non-retroactivity Morality of aspiration or of duty? Is an ideal society completely free from retrospective laws? Fuller: ‘Curative’ laws (in light of unforeseen circumstances) may be necessary However, sometimes ‘blatantly’ unjustified (e.g. Night of the Long Knives) Does a court decision in cases of ambiguity amount to retrospectivity? Is retrospectivity justifiable if in order to prove certainty? If the law is perfectly clear (leaving no resort to the court), the law will ossify and the legal system will decay. Hence, retrospectivity is a necessary evil Non-retrospectivity acts as a check on arbitrariness o Clarity Morality of aspiration due (ironically) to ambiguity of clarity: one can merely try to be clear Cannot be quantified; hence, cannot be morality of duty May require application of common sense o Non-contradiction Reasonable interpretations should be used to reconcile contradictory statutes o Possibility of compliance Two meanings of impossibility:
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Hart (I)
unreasonable for any every person (considered subjectively) to fulfill? unreasonable for ‘the reasonable man’ to fulfill? Is strict liability therefore justified (given that one may commit crimes without intent)? Only in cases of clarity as to which forms of action carry strict liability o Constancy No frequent changes in the law o Congruence between official actions and declared rules Symbolic laws (enacted to appease a particular constituency) may not be enforced in practice Implications may permissibly arise through constitutional adjudication using internal morality e.g. implicit prohibition of vague laws under the Constitution Dworkin, etc, question Fuller’s contention that laws may ‘exist’ as a matter of degree Fuller Critiqued o His system will be efficient, but may be followed by tyrannical systems without in any way restricting their capacity to tyrannise the citizenry. o Stability and law-making processes will not prevent laws from being used for evil ends However, defining such ‘dubious ends’ merely falls into the subjective trap of ‘substantive morality’ o Fuller’s riposte: internal morality was violated in the case of South Africa, owing to: absence of uniformity in assigning persons to various races and resulting (artificial) discrimination, contrary to ‘noncontradiction’ and ‘clarity’ Internal Morality and anti-miscegenation laws o Perez v. Sharp (1948) Perez (of Mexican origin), considered white under California law, affected by anti-miscegenation law Held: law struck down due to vagueness; insufficient guidance to registration clerk Cited by Fuller: where there is a dubious end, it will also be nearly impossible to satisfy internal (procedural) morality Subjective conceptions of ‘unreasonableness’ do not bear upon ‘impossibility’
John Finnis Strongly influenced by St. Thomas Aquinas o Part of post-WW2 resurgence of natural law thought o Diverges strongly from Fuller’s perspective Finnis’ Principles of Natural Law:
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o (1): a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; o (2) a set of basic methodological requirements of practical reasonableness… which distinguish sound from unsound practical thinking… and provide the criteria for distinguishing between acts that are reasonable… and unreasonable. i.e. between ways of acting that are morally right and morally wrong o (3) a set of general moral standards Principles Summarised: o (1) Basic goods of universal (objective) applicability (‘basic forms of human flourishing’), leading to o (2) Requirement of practical reasonableness, leading to o (3) General moral standards
Class XIII Finnis (II) Finnis’ principles: o basic goods, leading to o requirements of practical reasoning, leading to o general moral standards hence, reason informs morality, not vice-versa such moral standards are universal, as are basic goods and requirements of practical reasoning Basic Forms/Goods/Values of Human Flourishing o Goods of intrinsic worth Not moral judgments, but self-evident basic goods for aspects of human flourishing o Practical principles are derived from the basic goods e.g. Basic good of knowledge leads to principles that: knowledge is something good to have ignorance is to be avoided o Basic goods are intrinsically good, not just a means to an end. How are basic goods chosen? o Self-evident: cannot be demonstrated and need no demonstration o Does not mean universality of the tendency, or that such tendency is valued in every society Basic Good of Truth o One who denies that truth is a basic good is ‘implicitly committed to the proposition that he believes his assertion is worth making, and worth making qua true; he is thus committed to the proposition that he believes the truth is a good worth knowing or pursuing. But the sense
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of his original assertion was precisely that truth is not a good worth pursuing or knowing.’ o Does not imply that everyone is curious about everything, nor that all citizens value knowledge as a good thing. 7 Basic Goods o Innumerable basic goods, but may be derived from combinations of 7 basic goods: Life: ‘The term ‘life’ signifies every aspect of vitality… which puts a human being in good shape for self-determination.’ Knowledge: preference for truth over false belief Play: ‘each one of us can see the point of engaging in performances which have no point beyond the performance itself’ Aesthetic experience: appreciation of beauty Sociability or friendship: could be anything from need for peace/harmony to an active friendship Practical reasonableness: ‘the basic good of being able to bring one’s own intelligence to bear effectively… on the problems of choosing one’s own actions and lifestyle and choosing one’s own character.’ Religion: ‘questions of origins of cosmic order and of human freedom and reason.’ includes responsibility and knowledge of purpose No hierarchy between goods. Basic goods not derived from ‘human nature’ or ‘morality’ o Hence, though selfishness and cruelty form part of human nature, they cannot be justified as means or ends o Finnis similarly rejects homosexuality as unreasonable as a means or an end Goods must leave one ‘better off’ Basic Requirements of Practical Reasonableness o 1. Good of ‘practical reasonableness’ structures pursuit of all other basic goods o 2. Possession of a coherent plan of life Objectives must be placed in proper context o 3. No arbitrary preference between values o 4. No arbitrary preference between persons o 5. Detachment and commitment o 6. The (limited) relevance of consequences: Efficacy, within reason Neither the family nor the state may impose particular preferences as to values upon the practical reasoning of individuals.
Class XIV Finnis (III)
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Hart (I) Aspects of Practical Reason Respect for every value in every act o Kantian non-consequentialism o How can such occur consistent with practical reason (need for choice between values) o If non-consequentialism removed, no distinction between natural law and utilitarianism o Moral philosophy necessary for determination between goods; one may not go directly against a good Hence, no justification at all for killing a person Following one’s conscience o Requires all other aspects of practical reason to be obeyed o From Aquinas: one must obey one’s conscience, regardless of community standards or morals ‘Morality’ will result from obedience to the requirements of practical reason Source of Basic Requirements of Practical Reasonableness o In Natural Law and Natural Rights: ‘historicity’: all philosophers have emphasised these requirements o In Postscript: basic requirements ‘independent’, with no unifying source ‘Morality’s master principle’: o ‘integral human fulfillment’ o ‘flourishing of all human persons and groups, considered not as an end but as an ideal of reason against which plans of action can be measured’ Said master principle gives rise to the requirements of practical reasonableness Violation of practical reason is hence not only unreasonable, but morally wrong. Finnis on Law o Laws and legal system’s ‘central case’ is of a complete community purporting to have authority to provide comprehensive and supreme direction for human behaviour in that community, and to grant legal validity to all other normative arrangements affecting the members of that community o ‘Such large claims, advanced by or on behalf of mere human beings, would have no plausibility unless those said to be subject to legal authority had reason to think that compliance’ [was moral or just]. o ‘The authority of the law depends on its justice or at least its ability to secure justice.’ o Law must be coercive, but is necessary even in a society free from recalcitrance (a ‘society of angels’) Finnis’s Features of Rules o Rules are treated as gapless. o Rules regulate creation and administration of further rules. o In good legal systems:
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Hart (I) rules are prospective rules are not impossible to comply with rules are promulgated rules are clear rules are coherent with each other rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules rules are general, clear and stable officials: are accountable for their compliance with the rules administer the law consistently and in accordance with the rules Limits of the Rule of Law o Finnis, contra Fuller: Compliance with rule of law only a limited defence against tyranny o Finnis: Rule of law assures reciprocity between subject and state, but does not assure pursuit of the common good As against Fuller, who argued that the rule of law would ensure against tyranny Derivation of Positive from Natural Law o Example: basic good of life plus 7 principles of practical reason equal law prohibiting murder Hence, laws may be directly deduced from general principles o Are traffic rules less sacred or important for not being directly derived from the general principles (unlike murder, the prohibition on which is directly derived from natural law)? o Finnis: All positive law derives from the same set of norms, with no hierarchy between them.
Class XV Greenawalt and Critiques of Finnis The Challenge of Historicism o Greenawalt: ‘In its most radical form, the challenge asserts that many moral questions do not have correct answers.’ o ‘A less radical version… doubts that [correct] answers will reach across cultures and that they can be discovered by cross-cultural reason.’ o No universal human ‘nature’ o Reason will not arrive at equivalent moral conclusions across cultures o Even if human goods are universal, ‘the understandings of those goods and their orderings in context are different.’ Fundamentals and Non-Fundamentals
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o Natural lawyers concede that, ‘on some non-fundamentals, both social institutions and moral opinion may appropriately differ across cultures.’ o However, certain moral conclusions remain ‘universally valid’ Do such compromises, however small, shake the foundations of universality? Rule against taking innocent life: o Depends upon construction of intention and foreseeability e.g. Lief’s case (Greenawalt’s example) differs from directing lake with incidental consequence of killing others o Is value of 5000 lives equal to that of 1? o Great stress upon choice: never bound to take life Furthermore, Finnis acknowledges the reality of choices between basic values o Finnis is non-consequentialist: focuses upon particular acts and not their broader context Establishes absolute limits on actions Does belief in religion lead to belief in natural law? o Natural lawyers relying on religious premises ‘cannot expect all reasonable people of goodwill to accept those standards’ o ‘Why should we suppose that religious perceptions are any less culture-dependent than moral understandings?’
Finnis and Sexual Morality All non-procreative sex does nothing more than provide each partner with an individual gratification. Greenawalt: Lived experience should alter perspectives on morality of sexual experience Michael Perry: ‘The reality apprehended by many married couples who practice contraception, and by many homosexual couples, is directly contrary to the reality postulated by John Finnis.’ Quarrel amongst natural laws over the extent to which we can rely on experience to reach moral conclusions Robert George: Only reproductive sexual acts can be ‘truly unitive’ Hart’s Arguments in the Hart-Fuller Debate Bentham: Separation of law from morality allows for its amendment in light of negative consequences If ‘law is always moral’, then removes capacity to revolt against such Bentham was aware that ‘the time might come in any society when the law’s commands were so evil that the question of resistance had to be faced, and it was then so essential that the issue at stake at this point should neither be oversimplified nor obscured. Yet this was precisely what the confusion between law and morals had done…’ Hart and Realism o Legitimate discomfort with ‘mechanical jurisprudence’ should not extend to dissent from positivism: positivists are not formalists
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o Positivism allows for a legitimate ‘penumbra’ within which judges possess discretion (and may even, as per Austin, legislate) However, such cases are very rare and do not undermine the integrity of the system as a whole Hart and Gustav Radbruch o Hart: Austin’s acceptance of unjust laws went along ‘with the conviction that if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and to withhold obedience.’
Class XVII Missed Class XVI. Dworkin ‘The Model of Rules I’
Dworkin can be classified neither with positivism nor with natural law ‘Embarrassing Questions’ o ‘Nominalists’ view concepts of ‘legal obligation’ and ‘the law’ as ‘myths, invented and sustained by lawyers’, but cannot identify precisely what these myths are o ‘Nominalists’ is a general term, not referring to any particular school Dworkin’s Critique of Positivism: o Characteristics of Positivism: Law is a set of rules that determine appropriate conduct and prescribe punishment for violation What is law is identifiable by specific criteria, not involving content but pedigree Rules are exhaustive of the law Legal obligation exists only when there is a legal rule o Positivism’s ‘pedigree’ test is non-normative: they do not necessarily advocate separation of law from morals as ‘what ought to be’ o Dworkin’s inadequacies of positivism: Law is not just a set of rules: lawyers/judges use standards other than rules to decide ‘hard cases’ e.g. principles, policies Positivism’s ‘central notion of a single fundamental test for law forces us to miss the important roles of these standards which are not rules.’ Dworkin views positivism as ‘a model of and for a system of rules’, not necessarily descriptive of what prevails in reality o Policy: Standard that refers to a goal: improvement in economic, political or social feature of the community e.g. that automobile accidents should be decreased 25
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o Principle: valued standard, not for the goal it will serve, but because it is a requirement of fairness, justice or morality e.g. No person can benefit from their own wrong o as in Riggs v. Palmer (1889) How are principles used, and how do they form part of law? o Riggs v. Palmer (1889) (NY) Heir killed grandfather to obtain his estate Principle (that one should not benefit from one’s own wrong) took precedence over rule (that wills should be enforced) ‘All laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law.’ Hence, murderer denied his inheritance o Henningsen v. Bloomfield Motors (1960) (NJ) Henningsen injured by defective automobile; had previously signed contract limiting manufacturers’ liability solely to replacing or ‘making good’ defective parts Principles considered: one who does not read a contract cannot relieve himself of its burdens freedom of contract Principles applied: freedom of contract may be qualified manufacturers of automobiles are under special obligations in light of the huge social importance of cars o Policy, not principle courts will not permit themselves to be used as instruments of inequity and injustice o both principle and policy? The courts generally refuse to lend themselves to the enforcement of a bargain in which one party has unjustly taken advantage of the economic necessities of the other Hence: courts draw upon a wide array of principles and policies beyond mere rules Difference between rules and principles o Rules apply in an all-or-nothing fashion e.g. A will is valid if signed by 3 persons If facts not covered by exceptions, rules either apply or they do not o Principles do not create legal obligations in all cases e.g. ‘No person shall profit from his wrongs’ is not an absolute rule o ‘Counter-instances’ e.g. adverse possession, breach of contract of employment, jumping bail
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Not exceptions to rules, but ‘counter-instances’ Exceptions may be listed exhaustively, with some amount of certainty Counter-instances are theoretically not exhaustive e.g. Breach of contract of employment Ordinarily one should notprofit from one’s own wrong Despite such, may ordinarily keep salary from second job (acquired in breach of contract) o hence, counter-instance o Principles have no set criteria for applicability Instead, they are standards that must be kept in mind as relevant while making decisions as to which direction to take o Principles, unlike rules, have dimensions of weight When 2 valid principles conflict, resolution is made by identifying the more important principle e.g. Henningsen: Manufacturer’s liability (policy) v. freedom of contract (principle) o Form is not decisive in identifying rule or principle e.g. First Amendment: Congress cannot abridge freedom of speech If considered rule: All laws abridging freedom of speech are unconstitutional If considered principle: ‘Clear and present danger’ test, creating balancing act (not absolute prohibition) e.g. Sherman Act: all contracts in restraint of trade are void Courts: only ‘unreasonable’ restraints on trade are void Logically, Acts should function as rules, but may function as principles o Do qualifiers (like ‘unjust’, ‘unreasonable’, ‘significant’) convert rules into principles? e.g. Unreasonable contracts are void: rule or principle? Not a principle in itself, because it limits the other kinds of principles that may be used o Faced with contrary principle, will still be void o If terms like ‘unjust’ are accompanied by a formidable body of case law on their appropriate interpretation, can they be transformed from principles into ‘rules’? Rule of principle in a legal system: o Two possibilities: Law equals rules plus principles In some cases (like Riggs), Courts may look beyond rules and apply principles o Difference between ‘make it a rule’ and ‘have a rule’ Englishmen ‘make it a rule’ to watch a movie every Sunday Is there a difference between these terms? Dworkin: ‘Make it a rule’ is a choice, ‘have a rule’ is mandatory 27
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Do judges have discretion? o 3 senses in which ‘discretion’ is used: Use of judgment No higher authority No standards are prescribed o Judgment: Not a mechanical task; can decide between alternate courses of action e.g. ‘The sergeant’s orders left him a great deal of discretion.’ ‘First weak sense’ of discretion o Finality: Discretion where no higher authority may overturn one’s decision ‘Second weak sense’ of discretion o No prescribed standards: ‘Strong sense’ of discretion e.g. The sergeant’s orders: If told to take ‘the five strongest men’, may have weak discretion (‘judgment’), though bound by standards If told to select soldiers with no further instructions, strong sense of discretion Judges only ever possess ‘weak’ discretion, not discretion in the absence of other prescribed standards o The nature of judicial authority imposes limits on the judge’s discretion. ‘An official’s discretion means not that he is free to decide without standards…’ What is the quality of judicial discretion? o Nominalists perceive strong judicial discretion o Positivists (and Hart): Principles not binding; even where they are binding, they cannot determine a particular result Principles are ambiguous and controversial; therefore, they are not ‘law’ Dworkin: Inadequacy of rule of recognition o Judicial review is carried out using ‘principles’ allowing rules to be changed or modified to advance principles (e.g. Riggs) Principles cannot be used indiscriminately; principles for change must be weighed against principles for the status quo o Principles cannot be identified using rule of recognition Pedigree thesis does not apply Instead, principles arise and evolve from public consciousness and morality, and within the law Class XVIII
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Hart (I) Dworkin (continued) Principles cannot be identified using rules of recognition o Pedigree thesis does not apply o Legal principles not created by Legislature or Courts o Origin: Sense of ‘appropriateness’ (morality) developed in the public and legal profession over time o Principles may only be eroded, not repealed Principles depend on: o institutional responsibility o statutory interpretation o persuasive force of precedent o relationship between contemporary moral practices The above cannot be characterized as a rule or formula, however complex, reminiscent of a ‘rule of recognition’ Principles as customary law? o Dworkin: Hart’s idea of customary law and its identification through Rules of Recognition is unsatisfactory o Rule of Recognition identifies what is considered legally binding by the community How to identify customary rules? Whether the community considers X as morally binding Whether the community considers X as legally binding o Both are highly unsatisfactory. o Rule of recognition valuable only because it provides for criterion for identification of rules other than acceptance Have modern customs been subsumed into the common law, gaining validity only from reference in precedent? o Hart still allows customs to gradually form law of their own accord o See Hindu Marriage Act: provides general rules, with exceptions carved out by customs Forms of acceptance: o by society o by the rule of recognition (recognising legislation, caselaw, etc, as law) Dworkin and Separation of Law and Morals o Dworkin does not necessarily dispute the separation; however, he argues that morality, as embodied in precedent, may qualify or modify the application of principles Principles may serve as (or give rise to) rules of recognition o Dworkin: This is not a particularly useful definition. o Dworkin: ‘Positivism, on its own thesis, stops short of just those puzzling, hard cases that send us to look for theories of law.’ o ‘When we read these cases, the positivist remits us to a doctrine of discretion that leads nowhere and tells nothing.’ Raz, ‘Legal Principles and the Limits of Law’ Raz’s classification of concepts: 29
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o non-legal standards (including non-legal rules and principles) o legal standards laws which are not norms (e.g. territorial extent of a legal system) legal norms particular legal norms: o legal rules o legal principles How is contradiction possible in different judgments based on similar fact circumstances, if principles prevail? o Subjectivity is inevitable. Individuation: o What is to count as a single law? not necessarily indicated by form e.g. is ‘right of free speech’ a principle, or the ‘individuated’ product of the Constitution and all associated laws o e.g. Austin: all laws are commands o Raz: ‘Every theory about the logical types of laws presupposes a doctrine of the individuation of law and for the most part it can be attacked or defended only by attacking or defending its underlying doctrine of individuation.’ To Raz, the ‘Henningsen principles’ identified by Dworkin merely summarily refer to a pre-existing body of legal rules, without specifying their content in detail. o Not everything that looks like a legal principle is a legal principle. o A similar theory applies to the ‘principle’ of freedom of speech: this supposed ‘principle’ merely summarises (individuates) a broader body of pre-existing law which gives rise to this principle Raz: Conflict between rules is possible, and rules have different weights o Can avoid conflict by crafting rules of individuation however, this may result to a messy and incoherent body of laws Laws that are not principles do conflict o Through such conflict, they modify or qualify each other This process of qualification takes into account differing ‘weights’ of rules Not all rules and principles apply to the same logical type. o Some rules are not norms (e.g. will to be witnessed by 3 persons) Qualitatively different from, e.g., prohibition upon murder Difference between rules and principles: o rules deal with specific acts, whereas principles concern unspecific actions Difference is only of degree Can have borderline cases o e.g. prohibition of smoking, assault (rules); promotion of happiness (principle)
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Principle may require several specific actions, so they justify rules prescribing specific actions Raz: Role of principles in law: o Ground for interpreting law o Ground for changing law o Ground for particular exception to law o Ground for making new rules Principles are the sole grounds for action In the interests of certainty and fairness, it is best to use principles minimally. Raz on Laches o Court may impose limitations on suits (filed late or without explanation) in light of prevailing principle against undue delays Raz does not provide additional examples or explanations for most of his above-noted grounds in which principles (or, technically, individuations of a broader corpus of law) may play a role in the law o Raz only gives the example of sentencing: wherein judges are bound not by rules, but by a variety of principles which they must weigh against one another Raz on Discretion o Dworkin’s Thesis: Discretion does not exist because judges are not bound by principles o Raz: At least 3 sources of judicial discretion in most legal systems: vagueness in language the ability to determine the weight of rules/principles laws themselves may grant discretion to courts o Principles do not exclude judicial discretion rather, they presuppose the existence of discretion and guide such discretion o Raz: Judicial discretion does not condone arbitrariness Rather, judges have a legal duty to exercise discretion according to their beliefs and values Sources of Legal Principle: o Raz: Enactments Judicial custom o Dworkin: ‘Judgments of the community at large or some identifiable segment thereof.’ Principles and the possibility of a criterion of identity o Raz has problems with the concept of a rule of recognition o Raz: Principles can be reconciled with the Rule of Recognition when seen as part of judicial custom o Need a more adequate explanation of the concept of a customary norm However, absence of such explanation does not necessarily lead to the conclusion that the Rule of Recognition cannot account for principles The general principle remains valid. 31
Hart (I) Class XX Missed Class XIX. Last Class: ‘Hard Cases’ o Dworkin’s theories seek to make adjudication more compatible with democracy o Judges should decide cases in accordance with principles, not with policy, in order to preserve a strong role for the legislature Dworkin (continued)
Dworkin: ‘Hard cases’ should be decided consistently with principles and rights Dworkin: Rights are ‘trumps’ o as such, whether something can be defined as a ‘right’ will vary based on whether, in its political and social context, it can trump collective interests Abstract v. concrete rights o Abstract rights are ‘principles’ (e.g. a broader ‘right to free speech’) o Concrete rights explicitly state where they are placed within their legal system, identifying what can and cannot ‘trump’ said right Background rights and institutional rights o Background rights are abstract and ‘residual’ o Institutional rights are enforced and recognised by the State. o Example: If a particular society recognises the right to take property if undamaged (a background right), this right is not ‘institutional’ unless acknowledged and enforced by the State o Background rights may not be explicitly recognised by the legislature. Institutions of the State do not have ‘complete autonomy’; there are limits upon their authority. o Chess, by contrast, is governed by complete autonomous institutions Chess has no boundaries save those set by the rules of the game. In a larger system, by contrast, both legislators and judges are constrained against each other. A chess referee has complete autonomy to decide according to the rules as they see fit Even so, however, the referee lacks ‘strong discretion’ (despite their ‘finality’, the ‘second weak’ form of discretion) Dworkin: Judges are confined to adjudicating and recognising legal institutional rights, not background or non-legal institutional rights Theory of practice o e.g. Chess metaphor: Even if the referee may make decisions by reference to principles (‘the nature of the game’), their assessment of such must turn upon past institutional practice in chess 32
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o ‘Theory of practice’ not based on personal inclinations or beliefs, but solely by regard to past acknowledgements of institutional rights Dworkin’s ‘Rights Thesis’ o Dworkin recognises the primacy of rights in most cases, but denies that they are absolute o Even Dworkin concedes that the ‘rights thesis’ is applicable to civil cases, not criminal cases In civil cases, both parties have an identifiable political right to be asserted In criminal cases, an accused innocent party may assert ‘right to freedom’ and ‘right to be successful’; by contrast, the State has no equivalent ‘right to convict’ o Further, there is ambiguity as to whether there is potentially greater scope for policy considerations in criminal cases e.g. Mark v. Ohio: inadmissibly obtained evidence rejected to deter police from similarly obtaining evidence in future Dworkin and ‘Hercules J’ o A judge with infinite wisdom and time would be capable of ‘truly’ resolving hard cases o Not all judges need share the same approach to the right answer, as none are capable of perceiving ‘the’ ‘true’ ‘right answer’ (in light of limitations upon wisdom, time and resources) Hence, no right answer ‘in practice’ Law’s Empire (ch. 7) o Role played by background conceptions of justice in shaping judicial decision-making o Division over ‘semantic sting’: do all agree as to what ‘the law’ ‘is’? Formerly a major issue in the positivism v. Dworkin debate, now a non-issue o Debates in law over ‘theoretical’ definitions of law (‘what is the acceptable boundary of law?’) far deeper and more complicated than ‘empirical’ debates o Dworkin: In preference to prior ‘plain fact’ view, law should be understood as a perpetual argument subject to continuous reinterpretation gives rise to ‘the interpretive attitude’ o Social practices must be questioned in order to ascertain their meaning (and hence determine their appropriate application) o Two components of interpretive attitude: practice does not simply exist as a rule, but has a justifying purpose rules understood as non-exhaustive and non-universal: potential for change of content in light of broader framework of values o Values and content are hence entangled: The content of the law will hence depend on the purpose (values) of the law. This amounts to Dworkin’s primary challenge to the positivist approach. ‘Constructive interpretation’ 33
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o Interpretation should not merely discern authorial intent, but should be constructive: aiming to discern the true value of the work, and presenting it in the best light possible ‘Acceptable hypothesis’: viewing work in the best light possible by assigning value to it o Three stages of interpretation: pre-interpretive stage discovering/identifying the work (and limitations on field of inquiry) interpretive stage assignment of meaning to the main elements of the practice not one’s own interpretation of value, but discernment of existing values within the work post-interpretive stage determining how rules apply to novel fact circumstances and, hence, determining whether the rule is of continued worth o These ‘three stages’ are also advanced by Dworkin as explaining legal philosophy Different forms of interpretation derive from the adoption of particular stages ‘Conventionalism’ o Encompasses positivism o Refer to past decisions for purposes of certainty and procedural fairness o However, no obligation to comply with prior precedence or practice in novel fact circumstances ‘Pragmatists’ o No absolute principles or rights o Law stripped of its mystique: judges should be allowed to decide as best suits society’s needs, including regard to the broader consequences of their actions ‘Integrity’ approach o One may have regard to prior approach for more than mere procedural fairness (as against conventionalists) o Instead, should preserve ‘law as integrity’: consistency with previously established principles, not just with doctrines ‘Gravitational effect of precedent’ o Whether new fact situations do not operate within ‘orbit’ of precedent, precedent continues to exhibit ‘gravitational’ effect as embodying principles of the legal system ‘Integrity’ should operate in every branch of government; otherwise, a ‘checkerboard’ approach prevails o ‘Consistency of principle’ should prevail to improve the integrity of the system as a whole
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Dworkin: Litigants are entitled to treat the law as a ‘seamless web’, despite its construction by thousands of judges and legislators ‘Horizontal’ (consistent) application of principles ‘Chain-novel’ analogy o Law as a novel in which each chapter has been composed by a separate person, yet where all read together as a coherent novel o Small tweakings are possible, but only where consistent with the spirit of what has gone before
Class XXI Recap: Conventionalism o Judges should adhere to precedent in cases with clear antecedents, but may still ‘make law’ in novel fact circumstances Pragmatism o Dispenses with undue emphasis on absolutism or ‘rights’ o Judges should make decisions according to what is best for society Dworkin rejects both of the above, opting for jurisprudence of integrity o Preservation of the ‘seamless web’ through consistency of principles discerned (constructively, not just through discovering intent) from precedent Dworkin (continued)
Hercules J and ‘Hard Cases’ o ‘The Bus case’ Would providing free bus rides to church violate separation of church and state? Can only be resolved in terms of the original justification for secularism, to determine if ‘busing’ offends against those principles o ‘Law as integrity’ requires constitutional principles to be read in light of a broader, overarching theory of the Constitution Dworkin on Statutory Interpretation o e.g. a statute prohibiting kidnapping across state lines for commercial purposes must consider content and purpose of statute (why phrased so broadly) to determine application can only be understood in terms of a judge’s pre-existing philosophical approach to federalism o Application of principles is constrained, however, by the fact of the case itself and pre-existing cases except with regard to gravitational force ‘Gravitational force of precedents’ o Principles (not policy) are binding on future judges Principles generally embodied in ratio
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Policies generally embodied in dicta o Even where there are substantial differences between facts, precedents maintain ‘gravitational force’ (via integrity) as sources of principle Law’s Empire, ch.7 o O’Brien v. McLoughlin Woman suffered nervous shock after witnessing injuries of family members after the effect (did not witness accident) Should Mrs McLoughlin be entitled to damages from O’Brien (driver)? Even though no direct precedent, many possible principles: ‘no right to compensation except for direct physical injuries’ ‘moral right to compensation for emotional injuries suffered at the scene’ ‘compensation should not be awarded if cost of injury not equal to cost of avoiding accident; would compensation benefit the community as a whole?’ o Learned Hand’s stance o A policy argument; hence, not a ‘principle’ ‘moral right to damages for any injury as a direct consequence of careless conduct’ [directness] ‘moral right to damages for any foreseeable injury, whether physical or emotional’ [foreseeability] ‘moral right to damages for foreseeable injuries, but not if this would impose crippling financial penalties’ o combination of principle and policy Hercules J will hence consider economic implications of decision-making, in limiting absolute application of principles Such principles will recognised, however, only in ‘hard cases’, and will be limited in their broader implications for social policy Dworkin believes that there are many ‘right’ answers which Hercules J could conceivably attain; Hercules J being hypothetical, however, appropriate methods may attain multiple legitimate answers
The Historical School of Jurisprudence
Divided between English and German schools Leading philosophers: o Savigny o Maine Savigny o Context: formation of the Napoleonic Code European civil-law traditions o Thesis: law is an aspect of social life akin to language, clothing, or philosophy
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o Law is not imposed by a sovereign, but arises spontaneously from the organic social life of a community hence, opposed codification of law as artificially halting its development o Volksgeist ‘Spirit of the people’/’common consciousness’ Source of all laws o How can existence (and necessity) of legislation be squared with Savigny’s belief in the supremacy and purity of customary law? Because all laws, customary or statute, arise from the volksgeist. o Lawyers and jurists cannot act in an arbitrary manner; rather, any exercise of power is merely a channeling of the volksgeist. o Appropriateness of Legislative Action May be necessary, despite its negative effect of retarding organic development of the law Hence: Savigny approved of Justinian’s Code as suited to a declining, static society Legislation not appropriate in a vibrant, rapidly evolving society Context: Savigny wrote in an era of infrequent legislation and strong customary practices Savigny himself later became Law Minister and promoted codification. Savigny has been considered elitist, preserving the status quo against the growing power of the state and democracy.
Class XXII The Historical School of Jurisprudence Savigny: o Law arises from the organic social life of the community ‘seat of law’ in the volksgeist (spirit of the people) o Opposed codification as hindering the organic development of the law o New doctrines cannot be ‘created’, but must arise ‘organically’ o Every society will possess a different form of life unique to its culture o Political power does not create law o Stages of Development of Law: Political element Conviction to create law among people Technical element To Savigny, legislation is mere ‘technicality’ Decline of the law due to absence of political element Absence of popular support leads to creation of new law Criticisms of Savigny o Volksgeist requires overwhelming political consensus, impossible in modern societies o How can the volksgeist be ascertained?
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Hart (I) In light of the above difficulties, Savigny admits to the necessity of codification in certain technical respects (e.g. notice requirements) organization of social life is impossible on volksgeist alone o Savigny: no separate volksgeists for different social communities within a nation however, emphases need for consensus among jurists in implementing the volksgeist distinct from Hart, Savigny’s ‘juristic consensus’ is merely a microcosm and way of ascertaining the broader consensus of the community: no disconnect between juristic and popular consensus Hart, by contrast, emphasises official, not popular, consensus as a necessary aspect of the Rule of Recognition o although popular support still gives rise to efficacy in Hart’s thesis o For complex laws (e.g. patent laws), one cannot attribute the precise details of law to the volksgeist hence, need for legislators for technical element however, even the most specialized, technical law should reflect and conform to the volksgeist o Savigny’s work must be read in light of his resistance to thencontemporary codification efforts. o Implicit ‘two layers’ of law for general (based on volksgeist) and specialized (based on legislation) laws o Customs should not be understood as immutable, static since time immemorial; they are subject to evolution based on shifting popular sentiment Rhodes: One of the greatest virtues of Savigny’s theory is its emphasis on practical aspects: just because a law is enacted does not mean, absent political consensus, that it will be enforced. (‘On the Historical School of Jurisprudence’) Savigny: Codification of general laws may be necessary in periods of social stagnation, potentially allowing society to further evolve (by legislating established customs) ‘On the Historical School of Jurisprudence’: o Sometimes legislation is not necessary; customs will evolve by themselves e.g. evolving common law on liability for one’s wandering poultry Iowa Supreme Court rejected common law notions, on the basis that ‘the community’ would be shocked by such laws 1970s: UK courts, reacting to shifts in technology (factory farming) and transport (increased motor
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Hart (I) transport), imposed new liability for action of one’s poultry (based on shift of underlying customs) English School of Historical Jurisprudence (Sir Henry Maine) Whereas Savigny stressed fealty to past customs, Maine sought to use the historical method to understand present laws o one of the first comparative legal scholars o drew on Roman, Hindu, biblical, etc, law Maine’s history of law o Earliest stage of law: handing down of judgments by Gods or Kings o Succeeded by oligarchy (whether of political, military, religious, etc, leaders) who claim monopoly over legal knowledge o Third stage: Era of (ancient) codes Written laws, made possible by development of literacy Modern laws primarily derive from this third stage End of law as a spontaneous development; move towards purposive creation and development of law o Subsequent evolution of society after codification Division between ‘stagnant’ and ‘progressive’ societies Stagnant societies remain fixed at the stage of codification o Maine: Societies evolve from ‘status to contract’ Shift in legal rights and duties from those imposed by birth to those voluntarily undertaken o Legislation may be used to effect further social change Maine and Savigny: o Both base law in culture o Maine does not share Savigny’s contempt for legislation. Sociological Jurisprudence Response to the ‘conservative turn’ of positivism and natural law Arose from historical school’s pioneering regard for social context and practical application Sociology and the law: o Use of sociological techniques to study purpose and form of the law Roscoe Pound: o Identified three distinct contemporary schools of jurisprudence: Philosophical school Historical school Analytical school o Philosophical school: e.g. natural lawyers ethical basis of law o Historical school: Divided between German and Comparative (English) schools Relatively new (to Pound); arose with Savigny o Analytical school: 39
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Positivism Pound and European Philosophers (Social Utilitarianism) o Draws on Rudolf Jhering, European philosopher, and Eugen Ehrlich o Undue emphasis on political creation of positive law causes law to fall out of contact with its purposes and society’s motives hence, greater emphasis on law as tool of social control; law understood as part of society Durkheim: o Types of social cohesion Mechanical solidarity based on repressive laws Organic solidarity based on restitutive laws o Law hence a ‘measuring rod’ of society Roscoe Pound (continued): o Law and jurisprudence are concerned with social engineering o Functional approach to the law o Counter to ‘formalism’ and ‘mechanical jurisprudence’ o Reaction against historical school’s use of sociology to maintain the status quo Pound advocated a ‘purposive’ view of the law o Drew upon Ehrlich’s identification of social interests served by the law Pound’s definition of the law o Did not attempt comprehensive definition of law (due to pragmatic approach) o Tentative definition of law: ‘a highly specialized form of social control, carried on in accordance with a body of authoritative precepts’ o Law in its wide sense (‘precepts of law’) consists of: rules precepts attaching a definite detailed legal consequence to a definite detailed state of facts or statement of fact principles authoritative starting points for legal reasoning conceptions authoritatively defined categories (e.g. trust, sale) standards defined measures of conduct to be applied according to the circumstances of the case e.g. standard of due care, fiduciary relationship an authoritative technique of developing and applying precepts Pound’s purpose of law o Social engineering Particular form of law and engineering depends on stage of legal development o Stages of legal development Primitive stage
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Hart (I) Law as weak instrument to keep peace Strict stage Law strict and inflexible to regulate society Stage of equity of natural law Certainty modified for ethical solution of controversies Stage of maturity of law Emergence of equality and security as important values; equity is no longer an exception property and contract fundamental law formulated so as to permit maximum personal liberty Stage of socialization of law law serves to maintain and further social development task of law is enlarged Pound’s critique of contemporary law o as privileging individual claims above societal or collective claims o Pound sought to ‘bring back the collective’ element into the law Pound’s theory of interests o Focus on desires and wants of persons rather than will o ‘Interests’: claims, wants or demands of individual human beings to have something or do something not to be coerced into doing something one does not want to do o Since resources are limited, central problem of jurisprudence is choice between conflicting demands as such, jurists must: determine and list universal human wants assess priority between interests o Use of empirical and sociological methods to determine and list human wants Pound, however, was not a sociologist; he was a lawyer, academic and botanist Pound’s classification of Interests: o Social Claims of society as a whole e.g. general security, moral health of society, conservation of resources o Public Claims of the State in an organized society o Individual Claims of the individual regarding private security, property, family, reputation and belief Interests should inform rules, rather than rules defining the content of interests o Classification potentially skewed in favour of individual interests As maximization of individual interest is a social interest Pound’s concerns for sociological jurisprudence:
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o selecting the interests that the law should recognise o fixing appropriate legal limits of protection of these interests o deciding how and to what extent law can effectively protect interests o formulating principles of valuation to achieve the above Kohler: Jural Postulates of Civilized Society o Law in modern era (20th C) should maintain and further civilization o ‘Civilization’ is the social development of human powers towards their highest possible unfolding o Jurist must formulate the jural postulates of the society at that time and place (i.e. underlying values of society) o No eternal law, but an eternal goal: the development of the powers of humanity to their highest point o Given jural postulates: legislator may alter old rules and make new rules to conform to jural postulates judges may interpret laws in light of jural postulates (based on underlying values of society) o In 20th C Anglo-American civilization, men entitled to assume: no intentional aggression others will act reasonably others will act in good faith and will make good upon one’s reasonable expectations restitution of ill-gotten/accidental gains entitled to the fruit of one’s labour o In 1940s, Kohler added new jural postulates: right to secure jobs employer bears liability for human ‘wear and tear’ society will bear risk or misfortune that falls upon individuals o Such values discerned from legal doctrine, but assumed to be therefore values which society holds dear. Political context of sociological jurisprudence: o Dominance of formalism o Primacy of deductive logic o Ives (1911, NY) ‘Under our form of government… courts must regard all economic, philosophical and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be molded into statutes without infringing upon the letter or spirit of our written constitution.’ o Dean Christopher Langdell: ‘Law is a science and all the available materials of the science are contained in printed books of judicial opinions.’ Principles and doctrines should be solely derived from caselaw o Formalism in judging and interpretation: Once the applicable principle is found, judging is a matter of simple deduction with no heed to real-world considerations o e.g. US v. E.C. Knight (1895)
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Hart (I) Congress cannot regulate manufacturing, but can regulate interstate commerce Congress cannot regulate monopolies regardless of their implications for interstate commerce o e.g. Palsgraf v. Long Island Railroad Does employee have liability for all injuries indirectly caused due to negligence? Held: liability only to direct victims of one’s actions Williams J, dissenting: Determination of ‘proximity’ is a question of practical politics and economic considerations, not logic o e.g. Lochner v. NY Restrictions on maximum hours of labour in bakeries struck down for undue interference with freedom of contract Holmes J: Short, two-paragraph dissent ‘This case is decided on an economic theory which a large part of the country does not entertain.’ ‘[M]y agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.’ ‘The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.’ ‘General propositions do not decide concrete cases.’ ‘[T]he word liberty in the Fourteenth Amendment is perverted when it is used to prevent the natural outcome of a dominant opinion.’
H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593.
History of Positivism o Bentham and Austin: ‘constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.’ (p.594)
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o Utilitarian advocates of positivism ‘stood firmly but on their own utilitarian ground for all the principles of liberalism in law and government.’ (p.595) o ‘One by one in Bentham’s works you can identify the elements of the Rechtstaat and all the principles for the defence of which the terminology of natural law has in our day been revived.’ (p.595) Including freedoms of speech, press, association; wide publication of laws, controls upon administrative agencies, prohibition on strict liability; importance of principle of legality o ‘Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws.’ (p.596) Criticisms of Positivism o ‘Some critics [Friedmann] have thought that [this separation between law and morals] blinds men to the true nature of law and its roots in social life.’ (p.594) o ‘Others [Radbruch] have thought it not only intellectually misleading but corrupting in practice, at its worst apt to weaken resistance to state tyranny or absolutism, and at its best apt to bring law into disrespect.’ (p.595) Austin, The Province of Jurisprudence Determined (1954): o At 184: ‘The existence of a law is one thing; its merit or demerit is another.’ o At 184: ‘A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.’ o At 184-185: Blackstone, advocate of natural law, ‘may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation.’ Bentham and Obedience to the Law o ‘Bentham’s general recipe for life under the government of laws was simple: it was “to obey punctually; to censure freely.”’ (p.597) o ‘But Bentham was especially aware, as an anxious spectator of the French revolution, that this was not enough: the time might come in any society when the law’s commands were so evil that the question of resistance had to be faced, and it was then essential that the issues at stake at this point should neither be oversimplified nor obscured. Yes, this was precisely what the confusion between law and morals had done…’ (p.597) Dangers of Inseparability of Morality and Law: o ‘the danger that law and its authority may be dissolved in man’s conceptions of what law ought to be’ o ‘the danger that the existing law may supplant morality as a final test of conduct and so escape criticism’ (p.598) Utilitarians and Positivism o The Utilitarians did not insist on total division of law and morality:
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Hart (I) ‘First, they never denied that, as a matter of historical fact, the development of legal systems had been powerfully influenced by moral opinion, and, conversely, that moral standards had been profoundly influenced by law’ (p.598) ‘Secondly, neither Bentham nor his followers denied that by explicit legal provisions moral principles might at different points be brought into a legal system and form part of its rules, or that courts might be legally bound to decide in accordance with what they thought just or best’ (p.599) o Instead, Bentham and Austin insisted upon two key principles: ‘in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; ‘it could not follow from the mere fact that a rule was morally desirable that it was a rule of law’ o Gray, The Nature and Sources of the Law (1909) At 94: ‘The great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition of the truth that the Law of a State… is not an ideal, but something which actually is… [I]t is not that which ought to be, but that which is.’ Utilitarian separation of law and morals connected with ‘two other equally famous but distinct doctrines’: o that ‘a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies, though of course it could not supplant them’ o the ‘imperative theory of law – that law is essentially a command’ (p.601) ‘The indiscriminate use of the label “positivism” to designate ambiguously each one of these three separate doctrines… has perhaps confused the issue more than any other single factor.’ (p.601) The Command Idea of Law o ‘[P]art of a wider and more ambitious claim... Austin said that the notion of a command was “the key to the sciences of jurisprudence and morals”… [T]he Utilitarians thought that the essence of a legal system could be conveyed if the notion of a command were supplemented by that of a habit of obedience.’ (p.602) o ‘[T]he command theory, viewed as an effort to identify even the quintessence of law, let alone the quintessence of morals, seems breathtaking in its simplicity and quite inadequate.’ (p.602) o ‘Command’ defined: ‘an expression by one person of the desire that another person should do or abstain from some action, accompanied by a threat of punishment which is likely to follow disobedience.’ (p.602) o ‘Commands are laws if two conditions are satisfied: ‘first, they must be general;
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Hart (I) ‘second, they must be commanded by what (as both Bentham and Austin claimed) exists in every political society whatever its constitutional form, namely, a person or group of persons who are in receipt of habitual obedience from most of the society but pay no such obedience to others.’ o ‘It is easy to see that this account of a legal system is threadbare. One can also see why it might seem that its inadequacy is due to the omission of some essential connection with morality.’ (p.603) For example, ‘the gunman situation’ ‘Law surely is not the gunman situation writ large, and legal order is surely not to be thus simply identified with compulsion.’ (p.603) Characteristic Elements of a Law Beyond Command o ‘[N]othing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures.’ (p.603) Such rules ‘lie at the root of a legal system, and what is most missing in the utilitarian scheme is an analysis of what it is for a social group and its officials to accept such rules’ (p.603) o Rules do not solely consist of commands; some rules, as with ‘the rules enabling individuals to make contracts, wills and trusts, and generally to mould their legal relations with others’, allow persons to ‘exercise powers, make claims, and assert rights’ (p.604) ‘Rules that confer rights, though distinct from commands, need not be moral rules or coincide with them. Rights… exist under the rules of ceremonies, games, and in many other spheres regulated by rules which are irrelevant to the question of justice or what the law ought to be.’ (p.606) ‘Nor need rules which confer rights be just or morally good rules. The rights of a master over his slaves show us that.’ (p.606) The Realist Critique of Positivism o ‘The most skeptical of [American critics of the separation of law and morals] – the loosely named “Realists” of the 1930s – perhaps too naively accepted the conceptual framework of the natural sciences as adequate for the characterization of law and for the analysis of ruleguided action of which a living system of law at least partly consists.’ (p.606) o ‘But they opened men’s eyes to what actually goes on when courts decide cases, and the contrast they drew between the actual facts of judicial decision and the traditional terminology for describing it as if it were a wholly logical operation was usually illuminating…’ (p.606) o ‘[T]he Realists made us acutely conscious of one cardinal feature of human language and human thought…’ (pp.606-7) Said insight is as follows: ‘If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behaviour be regulated by rules, then the general words we use… must have some standard instance in which no doubts are felt about its
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application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.’ (p.607) If new facts ‘do or do not fall under existing rules, then the classifier must make a decision which is not dictated to him, for the facts and phenomena to which we fit our words and apply our rules are as it were dumb.’ (p.607) ‘Fact situations do not await us neatly labeled, creased and folded, nor is their legal classification written on them to be simply read off by the judge.’ (p.607) ‘[I]n applying legal rules, someone must take the responsibility of deciding that words do or do not cover some case in hand with all the practical consequences involved in this decision.’ (p.607) o ‘If a penumbra of uncertainty must surround all legal rules, then their application to specific cases in the penumbral area cannot be a matter of logical deduction, and so deductive reasoning… cannot serve as a model for what judges, or indeed anyone, should do in bringing particular cases under general rules.’ (pp.607-8) o ‘[T]he criterion which makes a decision sound in such cases [of ambiguity] is some concept of what the law ought to be; it is easy to slide from that into saying that it must be a moral judgment about what law ought to be.’ (p.608) How does realism render utilitarian distinction of separation of law and morals ‘wrong or misleading’? o Austin did not believe that law ‘was a closed logical system in which judges deduced their decisions from premises.’ (p.608) o ‘On the contrary, [Austin] was very much alive to the character of language, to its vagueness or open character; he thought that in the penumbral situation judges must necessarily legislate…’ (pp.608-609) o Furthermore, Austin ‘berated the common-law judges for legislating feebly and timidly and for blindly relying on real or fancied analogies with past cases instead of adapting their decisions to the growing needs of society as revealed by the moral standard of utility.’ (p.609) Contra Stone (1950)’s interpretation of positivism, at p.141 o If the realist notion that decisions in cases of ambiguity are made ‘not mechanically but in light of aims, purposes and policies’ is true, should the notion of separation between law and morality be dropped? Hart says no, because: ‘First, everything we have learned about the judicial process can be expressed in other less mysterious ways.’ (p.614) ‘Second, to insist on the utilitarian distinction is to emphasize that the hard core of settled meaning is law in some centrally important sense and that even if there are borderlines, there must first be lines.’ (p.614) ‘By contrast, to soften the distinction, to assert mysteriously that there is some fused identity between law as it is and as it 47
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ought to be, is to suggest that all legal questions are fundamentally like those of the penumbra.’ (p.615) Criticisms of Positivism from 20th Century Atrocities o ‘This appeal comes from those German thinkers who lived through the Nazi regime and reflected upon its evil manifestations in the legal system.’ (p.616) o Gustav Radbruch Shared ‘positivist doctrine’ until Nazi tyranny ‘[H]e was converted by this experience [of tyranny] and so his appeal to other men to discard the doctrine of the separation of law and morals has the special poignancy of a recantation.’ (p.616) o Austin, The Province of Jurisprudence Determined (1954) At 185: ‘The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.’ At 185: ‘An exception, demurrer, or plea founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.’ o Both Austin and Bentham, despite the above, continued to believe that ‘if laws reached a certain degree of iniquity there would be a plain moral obligation to resist them and withhold obedience.’ (p.617) o Radbruch believed, ‘from the ease with which the Nazi regime had exploited subservience to mere law’ and ‘from the failure of the German legal profession to protest against the enormities which they were required to perpetrate in the name of law’, that: ‘”positivism” (meaning here the insistence on the separation of law as it is from law as it ought to be) had powerfully contributed to the horrors.’ (p.617) o Radbruch concluded that ‘the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality and that no positive enactment or statute… could be valid if it contravened basic principles of morality.’ (p.617) o ‘[E]very lawyer and judge should denounce statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character, and enactments which on this ground lack the quality of law should not be taken into account in working out the legal position of any given individual in particular circumstances.’ (p.617) Hart’s Criticism of Radbruch o Rejects his failure to fully digest ‘the spiritual message of liberalism’: fails to give inquiry as to why ‘emphasis on the slogan “law is law”… went along with the most enlightened liberal attitudes’ (p.618) o ‘[I]f we adopt Radbruch’s view… we confuse one of the most powerful, because it is the simplest, forms of moral criticism. If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed.’ (p.620) ‘This [the Utilitarian stance] is a moral condemnation which everyone can understand and it makes an immediate and obvious claim to moral attention. If, on the other hand, we 48
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formulate our objection as an assertion that these evil things are not law, here is an assertion which many people do not believe, and if they are disposed to consider it at all, it would seem to raise a whole host of philosophical issues before it can be accepted.’ (p.620) Rules may permissibly reflect necessity: o ‘Suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances… rules forbidding the free use of violence and rules constituting the minimum form of property… would not have the necessary non-arbitrary status which they have for us, constituted as we are in a world like ours.’ (p.623) Requirements of natural procedural justice amount to ‘justice in the administration of the law, not just of the law.’ (p.624) Hart on Judicial Discretion: o ‘[W]hen rules are recognized as applying to instances beyond any that the legislators did or could have considered, their extension to such new cases often presents itself not as a deliberate choice or fiat on the part of those who so interpret the rule… Rather, the inclusion of the new case under the rule takes its place as a natural elaboration of the rule…’ (p.627)
Lon L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’
Confusion of Purpose in Hart’s Arguments o ‘[Hart] rejects emphatically any confusion of “what is” with “what ought to be”. He will tolerate no “merger” of law and conceptions of what law ought to be, but at most an antiseptic “intersection”.’ (p.630) o ‘Yet it was precisely this uncertainty about Professor Hart’s own argument which made it difficult for me at first to follow the thread of his thought’: ‘At times he seemed to be saying that the distinction between law and morality is something that exists, and will continue to exist, however we may talk about it…’ ‘At other times, he seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a “precious moral ideal”, that of fidelity to law.’ (pp.630-1) o However, ‘[t]here is no reason why the argument for a strict separation of law and morality cannot be rested on the double ground that this separation serves both intellectual clarity and moral integrity.’ (p.631) Anti-positivist argument rests ‘on the double ground that [the positivist argument’s] intellectual clarity is specious and its effects are, or may be, harmful’: o ‘On the one hand, we assert that Austin’s definition of law… violates the reality it purports to describe.’ (p.631)
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o ‘On the other hand, we assert that under some conditions the same conception of law may become dangerous, since in human affairs what men mistakenly accept as real tends, by the very act of their acceptance, to become real.’ (p.631) Virtue of Hart’s arguments: o ‘for the first time it opens the way for a truly profitable exchange of views between those whose differences center on the distinction between law and morality’ (p.631) o ‘All that was needed to surmount [the previous impasse] was an acknowledgement on the [positivist] side that its definitions of “what law really is” are not mere images of some datum of experience, but direction posts for the application of human energies.’ (p.632) ‘Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials. The respect we owe to human laws must surely be something different from the respect we accord to the law of gravitation.’ (p.632) Fuller on Hart on Radbruch: o ‘Without any inquiry into the actual workings of whatever remained of a legal system under the Nazis, Professor Hart assumes that something must have persisted that still deserved the name of law…’ (pp.632-3) The Definition of Law o Austin ‘defines law as the command of the highest legislative power, called the sovereign.’ (p.633) o Gray defines law as ‘the rules laid down by judges.’ ‘A statute is, for Gray, not a law, but only a source of law, which becomes law only after it has been interpreted and applied by a court.’ (p.633) o Bentham ‘considered that a constitution might preclude the highest legislative power from issuing certain kinds of laws.’ Alternately, ‘for Austin… any legal limit on the highest lawmaking power was an absurdity and an impossibility.’ (p.634) o ‘If all the positivist school has to offer in [times of trouble] is the observation that, however you may choose to define law, it is always something different from morals, its teachings are not of much use to us.’ (p.634) The Definition of Morality o ‘When Austin and Gray distinguish law from morality, the word “morality” stands indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law.’ (p.635) o Hart’s definition of morality: ‘When he speaks of morality he seems generally to have in mind all sorts of extra-legal notions of “what ought to be”, regardless of their sources, pretensions, or intrinsic worth.’ (p.635)
Fuller on Hart and ‘Immoral Morality’
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At the end of his essay, Hart focuses upon ‘immoral morality’: standards of “what ought to be” that are not moral o Even in evil societies, a judge may utilize discretion to supply ‘the insufficiencies of the statute with the iniquity that seemed to him most apt for the occasion.’ (p.636) o In Fuller’s analysis, by noting such, ‘Professor Hart is reminding [antipositivists] that if their program is adopted the morality that actually gets infused may not be to their liking.’ (p.636) Fuller’s response to such: o ‘Professor Hart seems to assume that evil aims may have as much coherence and inner logic as good ones. I… refuse to accept that assumption.’ (p.636) ‘[C]oherence and goodness have more affinity than coherence and evil.’ (p.636) ‘[W]hen men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness, by whatever standards of ultimate goodness there are.’ (p.636) ‘I find a considerable incongruity in any conception that envisages a possible future in which the common law would ‘work itself pure from case to case’ toward a more perfect realization of iniquity.’ (p.636) o ‘If there is a serious danger in our society that a weakening of the partition between law and morality would permit an infusion of “immoral morality”… what is the most effective protection against this danger? I cannot myself believe it is to be found in the positivist position espoused by Austin, Gray, Holmes and Hart.’ (p.636) ‘[T]hose writers seem to me to falsify the problem into a specious simplicity which leaves untouched the difficult issues where real dangers lie.’ (pp.636-7) o ‘[L]et us suppose a judge bent on realizing through his decisions an objective that most ordinary citizens would regard as mistaken or evil. Would such a judge be likely to suspend the letter of the statute by openly invoking a “higher law”? Or would he be more likely to take refuge behind the maxim that “law is law” and explain his decision in such a way that it would appear to be demanded by the law itself?’ (p.637) o ‘[S]uppose [Professor Hart and Fuller] were both transported to a country where our beliefs were anathemas, and where we, in return, regarded the prevailing morality as thoroughly evil.’ (p.637) ‘If we felt that the law itself was our safest refuge, would it not be because even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law?’ ‘[I]s it not clear that this hesitancy itself derives, not from a separation of law and morals, but precisely from an identification of law with those demands of morality that are the most urgent and the most obviously justifiable, which no man need be ashamed to profess?’ (p.637) 51
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o ‘[O]ver great areas where the judicial process functions, the danger of an infusion of immoral, or at least unwelcome, morality does not, I suggest, present a real issue.’ (p.637) e.g. commercial arbitration o The Pope’s pronouncement concerning the duty of Catholic judges in divorce actions ‘does not present a problem of the relation between law, on the one hand, and, on the other, generally shared views of right conduct that have grown spontaneously through experience and discussion.’ (p.638) ‘The issue is rather that of a conflict between two pronouncements, both of which claim to be authoritative; if you will, it is one kind of law against another.’ (p.638) Moral Foundations of Legal Order o Command Theory of Law ‘Professor Hart emphatically rejects “the command theory of law”, according to which law is simply a command backed by a force sufficient to make it effective.’ (p.638) ‘He observes that such a command can be given by a man with a loaded gun, and “law surely is not the gunman situation writ large.”’ (pp.638-9) ‘[Hart]’s conclusion is that the foundation of a legal system is not coercive power, but certain “fundamental accepted rules specifying the essential lawmaking procedures”.’ (p.639) o At the above point in Hart’s essay, Fuller ‘confidently expected that [Hart] would go on to say something like this: I have insisted throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised… as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality…’ (p.639) Said rules ‘derive their efficacy from a general acceptance, which in turn rests ultimately on a perception that they are right and necessary.’ (p.639) Such rules, ‘in the daily functioning of the legal system… are often treated and applied much as ordinary rules of law are.’ (p.639) ‘Hence, then, we must confess there is something that can be called a “merger” of law and morality, and to which the term “intersection” is scarcely appropriate.’ (p.639) o ‘Instead of pursuing some such course of thought’, Professor Hart leaves ‘completely untouched the nature of the fundamental rules that make law itself possible…’ (p.639) Is the separation of law and morals ‘part of a larger error that led to the command theory of law’? (p.640) o Austin did not abandon his command theory of law in light of its numerous failures of application (federalism, popular sovereignty, laws of succession) ‘because he had a sure insight that it would forfeit the black-and-white distinction between law and morality that was… the enduring object of a dedicated life.’ (pp.640-1) 52
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o Kelsen ‘does in fact take the plunge over which Austin hesitated too long. Kelsen realises that before we can distinguish between what is law and what is not, there must be an acceptance of some basic procedure by which law is made.’ (p.641) o Kelsen’s ‘basic norm’: General Theory of Law and State, p.401: ‘The basic norm is not valid because it has been created in a certain way, but its validity is assumed by virtue of its content. It is valid, then, like a norm of natural law.’ Fuller: a ‘fundamental rule that points unambiguously to the source from which laws must come in order to be laws.’ (p.641) ‘Kelsen speaks, not as Professor Hart does, of “fundamental rules” that regulate the making of law, but of a single law or norm.’ (p.641) ‘The difficulties Austin avoided by sticking with the command theory, Kelsen avoids by a fiction which simplifies reality into a form that can be absorbed by positivism.’ (p.641) o ‘No written constitution can be self-executing. To be effective it requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of effort we give to moral principles in which we have an active belief.’ (p.642) Fidelity to Law o ‘[A] realization of this ideal [of fidelity to law] is something for which we must plan, and that is precisely what positivism refuses to do.’ (p.642) o In drafting a Constitution, ‘substantive aims should be achieved procedurally, on the principle that if men are compelled to act in the right way, they will generally do the right things.’ (p.643) The Morality of Law Itself o Even if ‘order’ and ‘good order’ (‘law’ and ‘morality’, in other words) may be separated, ‘even in this unreal and abstract form [the abovenoted separation] the notion of order itself contains what may be called a moral element.’ (p.644) o ‘Morality of Order’ If an absolute monarch, contrary to his pronouncements and intentions, rewards disobedience and rewards disobedience, ‘this monarch will never achieve even his own selfish aims until he is ready to accept that minimum self-restraint that will create a meaningful connection between his words and his actions.’ (p.644) If an absolute monarch issues ambiguous orders, preventing the implementation of his commands, ‘if our monarch for his own selfish advantage wants to create in his realm anything like a system of law he will have to pull himself together and assume still another responsibility.’ (p.645) Hence: ‘Law, considered merely as order, contains, then, its own implicit morality. This morality of order must be respected if we are to create anything that can be called law, even bad law.’ (p.645) 53
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o Law ‘cannot be built on law’ in two senses: ‘First of all, the authority to make law must be supported by moral attitudes that accord to it the competency it claims.’ (p.645) ‘We… cannot have law until our monarch is ready to accept the internal morality of law itself.’ (p.645) o External and internal moralities of law ‘reciprocally influence one another; a deterioration of the one will almost inevitably produce a deterioration in the other.’ (p.645) Hart’s ‘neglect to analyze the demands of a morality of order’ leads him ‘to treat law as a datum projecting itself into human experience and not as an object of human striving.’ (p.646) o ‘When we realize that order itself is something that must be worked for, it becomes apparent that the existence of a legal system, even a bad or evil legal system, is always a matter of degree. When we recognize this simple fact of everyday legal experience, it becomes impossible to dismiss the problems presented by the Nazi regime with a simple assertion: ‘Under the Nazis there was law, even if it was bad law.’ (p.646) Hypothetical: Trial Judge in Commercial Cases o Where a trial judge with extensive experience in commercial cases is forced to obey superior court decisions which ‘in the field of commercial law simply do not make sense’, can positivism provide a remedy? ‘It will certainly do no good to remind him that he has an obligation of fidelity to the law.’ (pp.646-7) Nor will requiring him to legislate only ‘interstitially’ assist: ‘I cannot believe that the essentially trite idea behind his advice can be lifted by literary eloquence to the point where it will offer any real help to our judge’ (p.647) ‘Nor is it likely that a distinction between core and penumbra would be helpful.’ (p.647) ‘So far as his problem arises from the use of particular words, he may well find that the supreme court often uses the ordinary terms of commerce in senses foreign to actual business dealings. If he interprets those words as a business executive or accountant would, he may well reduce the precedents he is bound to apply to a logical shambles.’ (p.647) o ‘[P]ositivism’s insistence on a rigid separation of law as it is from law as it ought to be… renders the positivistic philosophy incapable of aiding our judge.’ (p.647) o ‘[O]ur judge can never achieve a satisfactory resolution of his dilemma unless he views his duty of fidelity to law in a context which also embraces his responsibility for making law what it ought to be.’ (p.647) Hypothetical: The Grudge Informer Cases o ‘After the collapse of the Nazi regime, the German courts were faced with a truly frightful predicament’: 54
Hart (I) Could not treat the dictatorship and all of its decisions as void; ‘intolerable dislocations would have resulted from any such wholesale outlawing of all that occurred over a span of twelve years’ (p.648) On the other hand, ‘it was equally impossible to carry forward into the new government the effects of every Nazi perversity that had been committed in the name of law’ (p.648) Predicament illustrated by ‘grudge informer’ cases: ‘If all Nazi statutes and judicial decisions were indiscriminately “law”, then these despicable creatures were guiltless…’ (p.649) ‘Yet it was intolerable… that these people should go about unpunished, while the objects of their spite were dead’, imprisoned or disappeared (p.649) Hart’s proposed solution: ‘[A] retroactive criminal statute would have been the least objectionable solution to the problem.’ ‘This statute would have punished the informer, and branded him as a criminal, for an act which Professor Hart regards as having been perfectly legal when he committed it.’ (p.649) Said solution is ‘surely not lacking itself in a certain air of desperation’ Despite such, Hart ‘condemns without qualification those judicial decisions in which the courts themselves undertook to declare void certain of the Nazi statutes under which the informer’s victims had been convicted.’ (p.649) ‘With this turn the question seems no longer to be whether what was once law can now be declared not to have been law, but rather who should do the dirty work, the courts or the legislature.’ (p.649) ‘[T]he issues at stake are much too serious to risk losing them in a semantic tangle.’ (p.649) ‘Throughout his discussion Professor Hart seems to assume that the only difference between Nazi law and… English law is that the Nazis used their laws to achieve ends that are odious to an Englishman. This assumption is, I think, seriously mistaken…’ (p.650) Nazi Use of Retrospective Legislation e.g. after the Night of the Long Knives Although retroactivity is not inherently opposed to good law, ‘retroactivity presents a real problem for the internal morality of law.’ (pp.650-1) ‘A general increase in the resort to statutes curative of past legal irregularities represents a deterioration in that form of legal morality without which law itself cannot exist.’ (p.651) Nazi Use of Secret Laws ‘[S]urely there can be no greater legal monstrosity than a secret statute.’ (p.651)
o
o
o
o
o
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Hart (I) ‘Would anyone seriously recommend that following the war the German courts should have searched for unpublished laws among the files left by Hitler’s government so that citizens’ rights could be determined by a reference to these laws?’ (p.651) ‘Since unpublished instructions to those administering the law could destroy the letter of any published law by imposing on it an outrageous interpretation, there was a sense in which the meaning of every law was ‘secret’.’ (p.652) Nazi Lawlessness ‘[W]hen legal forms became inconvenient, it was always possible by the Nazis to bypass them entirely and “to act through the party in the streets”. There was no one who dared bring them to account for whatever outrages might thus be committed.’ (p.652) ‘This complete willingness of the Nazis to disregard even their own enactments was an important factor leading Radbruch to take the position he did…’ (p.652) Hart’s criticism of German courts’ refusal to uphold Nazi laws: ‘By the simple dodge of saying, ‘When a statute is sufficiently evil it ceases to be law’, they ran away form the problem they should have faced.’ (p.655) Fuller: ‘This criticism is… without justification.’ (p.655) ‘So far as the courts are concerned, matters certainly would not have been helped if, instead of saying, ‘This is not law’, they had said, ‘This is law but it is so evil we will refuse to apply it.’ (p.655) ‘[U]nlike Professor Hart, the German courts… were living participants in a situation of drastic emergency. The informer problem was a pressing one, and if legal institutions were to be rehabilitated in Germany it would not do to allow the people to begin taking the law into their own hands, as might have occurred while the courts were waiting for a statute.’ (p.655)
o
o
o o
Fuller’s Summary of Hart’s Positivist Position: o ‘On the one hand, we have an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it.’ o ‘On the other hand, we have a moral duty to do what we think is right and decent.’ o ‘When we are confronted by a statute we believe to be thoroughly evil, we have to choose between these two duties.’ (p.656) Fuller’s criticism of the above position: o ‘The “dilemma” it states has the verbal formulation of a problem, but the problem it states makes no sense. It is like saying I have to choose between giving food to a starving man and being mimsy with the borogoves.’ (p.656) o The positivistic philosophy ‘never gives any coherent meaning to the moral obligation of fidelity to law.’
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o ‘The fundamental postulate of positivism – that law must be strictly severed from morality – seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations.’ (p.656) Moral Implications of Legal Positivism o Hart regards Radbruch’s charge that ‘a general acceptance of the positivistic philosophy in pre-Nazi Germany made smoother the route to dictatorship’ as ‘the most outrageous of all charges against positivism.’ (p.657) o ‘German legal positivism [including pre-Nazi] not only banned from legal science any consideration of the moral ends of law, but it was also indifferent to what I have called the inner morality of law itself.’ (p.659) o ‘In light of these considerations I cannot see either absurdity or perversity in the suggestion that the attitudes prevailing in the German legal profession were helpful to the Nazis.’ (p.659) ‘[A] dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system.’ (p.660) Problems of Interpretation: The Core and the Penumbra o Fuller’s Understanding of Hart’s Thesis: ‘Communication is possible only because words have a “standard instance” or a “core of meaning” that remains relatively constant, whatever the context in which the word may appear.’ ‘Except in unusual circumstances, it will always be proper to regard a word like “vehicle” as embracing its “standard instance”.’ ‘In applying the word to its “standard instance”, no creative role is assumed by the judge. He is simply applying the law “as it is”.’ (p.662) ‘In addition to a constant core… words also have a penumbra of meaning which, unlike the core, will vary from context to context.’ ‘When questions of [the penumbra] are decided there is at least an “intersection” of “is” and “ought”, since the judge, in deciding what the rule “is”, does so in light of his notions of what it “ought to be” in order to carry out its purpose.’ (p.662) o Fuller’s criticisms of Hart’s “hard core”: Hart’s theory assumes ‘that problems of interpretation typically turn on the meaning of individual words’ (p.662) ‘Surely no judge applying a rule of the common law followed any such procedure as that described… by Professor Hart’ (p.662) ‘Even in the case of statutes, we commonly have to assign meaning, not to a single word, but to a sentence, a paragraph, or a whole page or more of text.’ (p.662)
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‘Has the development of the law been influenced by morals?’ (1) o Hart answers ‘yes’ o There is insufficient investigation into whether conversely ‘the development of morality [has] been influenced by law’ (1) ‘Must some reference to morality enter into an adequate definition of law or legal system? Or is it just a contingent fact that law and morals often overlap… and that they share a common vocabulary of rights, obligations, and duties?’ (2) o Two things render discussion of these questions ‘interminable or seemingly so’: ‘The issue has been clouded by use of grand but vague words like “Positivism” and “Natural Law”. Banners have been waved and parties formed in a loud but often confused debate.’ (2) ‘[A]mid the shouting, too little has been said about the criteria for judging the adequacy of a definition of law.’ (2) ‘Is law open to moral criticism? Or does the admission that a rule is a valid legal rule preclude moral criticism or condemnation of it by reference to moral standards or principles?’ (3) o Open question ‘whether there are any form of moral criticism which are uniquely or exclusively relevant to law.’ (3) o ‘[D]oes “good law” mean something different from and wider than “just law”?’ ‘The subject of these lectures’: ‘Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?’ o ‘Ought immorality as such to be a crime?’ John Stuart Mill, On Liberty: o Mill: ‘The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.’ o Mill: ‘His own good either physical or moral is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right.’ o Only humans ‘in the maturity of their faculties’ possess such liberty does not apply to children or ‘backward societies’ o Criticisms of Mill: ‘Some critics have urged that the line which Mill [draws] between actions with which the law may interfere and those with which it may not is illusory.’ (5) ‘In an organised society it is impossible to identify classes of actions which harm no one or no one but the individual who does them’
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Hart (I) ‘Other critics… insist that it is merely dogmatic on Mill’s part to limit coercion to the class of actions which harm others.’ Such critics claim ‘there are good reasons… for compelling conformity to social morality and for punishing deviations from it.’ (5) o Hart: ‘I do not propose to defend all that Mill said… I myself think there may be grounds justifying the legal coercion of the individual other than the prevention of harm to others.’ ‘[O]n the narrower issue relevant to the enforcement of morality Mill seems to me to be right.’ (5) Legal Moralism o Has undergone a revival in ‘recent years’ in England o ‘Judges both in their judicial capacity and in extra-judicial statements have gone out of their way to express the view that the enforcement of sexual morality is a proper part of the law’s business – as much its business, so one judge has argued, as the suppression of treason.’ (6) o Shaw v. Director of Public Prosecutions ‘Conspiracy to corrupt public morals’ resurrected as a common law offence Citing Jones v. Randall (1774): Lord Mansfield: ‘Whatever is contra bonos mores et decorum the principles of our laws prohibit and the King’s Court as the general censor and guardian of the public morals is bound to restrain and punish.’ Shaw had composed and published the Ladies Directory, a directory of prostitutes In order to revive ‘conspiracy to corrupt public morals’, the House of Lords ‘made… an excursion, rare for English judges, into the area of policy’ (8) Lord Simonds: ‘[T]here is in [the] Court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.’ Lord Simonds: Were homosexuality legalized, ‘would it not be an offence if even without obscenity such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait till Parliament finds time to deal with such conduct?’ o ‘[T]he interpretation given by the House of Lords to the exceedingly vague and indeed obscure idea of corrupting public morals has fashioned a very formidable weapon for punishing immorality as such.’ o Significance of Shaw’s case: ‘[T]his revival [of the idea that Courts should function as guardian of public morals] was plainly a deliberate act of policy; for the antique cases relied upon as precedents plainly permitted… a decision either way.’ (11-12)
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Hart (I) ‘[T]he judges seemed willing to pay a high price in terms of the sacrifice of other values for the establishment – or reestablishment – of the Courts as custos morum.’ (12) ‘As a result of Shaw’s case, virtually any cooperative conduct is criminal if a jury consider it ex post facto to have been immoral.’ (12) Prostitution and Homosexuality o Wolfenden Committee Convened 1954, reported 1957 Recommended decriminalization of homosexuality, prohibition of public soliciting for prostitution Government gave effect to Committee’s recommendations on prostitution, but not on homosexuality o Wolfenden Committee’s principles on the role of law Section 13: ‘[The] function [of the criminal law]… is to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind or inexperienced…’ Section 61: ‘There must remain a realm of private morality and immorality which is… not the law’s business.’ o ‘It is perhaps clear form the foregoing that Mill’s principles are very much alive in the criticism of law…’ (15) Challenges to Mill: o James Fitzjames Stephen, Liberty, Equality, Fraternity Law should be ‘a persecution of the grosser forms of vice’ o Lord Devlin, The Enforcement of Morals: ‘The suppression of vice is as much the law’s business as the suppression of subversive activities.’ Positive and Critical Morality o Morality enters into the question of the enforcement of morality in two ways: as a question about morality and as a question of morality (whether it is moral to enforce morality) given that this is a question of whether it is moral to enforce morality, public acceptance of such or past practice is not conclusive (critical morality may exist independently of popular opinion) o Devlin: Sexual immorality may, ‘like treason, be something which jeopardizes a society’s existence.’ (19) ‘[W]hether or not a society is justified in taking steps to preserve itself must depend both on what sort of society it is and what the steps to be taken are.’ If a society were mainly devoted to persecution of minorities, it may be argued that the ‘disintegration of such a society would be morally better than its continued existence’ (19)
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o Principles of critical morality necessary for any argument regarding ‘whether a society has the “right” to enforce morality’ (19) o Utilitarian distinction between ‘moralities’: ‘positive morality’: ‘the morality actually accepted and shared by a given social group’ ‘critical morality’: ‘the general moral principles used in the criticism of actual social institutions including positive morality’ (20) Hence, question regarding morality of enforcement of law ‘is one of critical morality about the legal enforcement of positive morality.’ What is prima facie objectionable about the legal enforcement of morality? o ‘the actual punishment of the offender’, including deprivation of liberty, freedom of association, physical pain or death ‘All these are things which are assumed to be wrong to inflict on others without special justification…’ (21) o effects upon those ‘who may never offend against the law, but are coerced into obedience by the threat of legal punishment’ (21) ‘The unimpeded exercise by individuals of free choice may be held a value in itself with which it is prima facie wrong to interfere…’ (21) Alternately, ‘it may be thought valuable because it enables individuals to experiment – even with living – and to discover things valuable both to themselves and others.’ (21-22) o Laws enforcing sexual morality ‘may create misery of a quite special degree… [B]oth the difficulties involved in the repression of sexual impulses and the consequences of repression are quite different from those involved in the abstention from ‘ordinary’ crime.’ (22) ‘Both in England and America the criminal law still contains rules which can only be explained as attempts to enforce morality as such: to suppress practices condemned as immoral by positive morality though they involve nothing that would ordinarily be thought of as harm to other persons.’ (25) o Most of these rules relate to sexual morality o Mill’s critics ‘have always pointed to the actual existence of laws punishing mere immorality as if this in some way threw doubt on his claim that the criminal law should not be used for this purpose.’ (2728) Stephen: It is ‘not irrelevant to show that Mill was at issue with the practical conclusions to which most nations have been led by experience.’ Lord Devlin: ‘In the field of jurisprudence one is at liberty to overturn even fundamental conceptions if they are theoretically unsound. But to see how the argument fares under the existing law is a good starting point.’ o Despite such, ‘there are… good reasons for disputing these writers’ treatment of these rules as examples of the use of the law solely to enforce morality.’ (29) Paternalism and the Enforcement of Morality
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o Lord Devlin’s example: ‘subject to certain exceptions such as rape, the criminal law has never admitted the consent of the victim as a defence.’ (30) Hence, criminalization of euthanasia and suicide Devlin: ‘There is only one explanation’ for this rule: that ‘there are certain standards of behaviour or moral principles which society requires to be observed.’ (30) Lord Devlin: The ‘function’ of the criminal law, in such cases, ‘is to enforce a moral principle and nothing else.’ o However, Lord Devlin’s statement ‘that there is only one explanation’ is disputed by Hart ‘The rules excluding the victim’s consent as a defence to charges of murder or assault may perfectly well be explained as a piece of paternalism, designed to protect individuals against themselves.’ (31) A ‘paternalistic policy of using the law to protect even a consenting victim from bodily harm’ is not identical to ‘laws used merely to enforce positive morality’ Even Mill, while condemning both, mentioned these as ‘separate types of inadequate ground’ (31) o Hence, paternalism is not necessarily equivalent to ‘the enforcement of morality’ e.g. laws punishing cruelty to animals: ‘[I]t is certainly intelligible… to say that the law is here concerned with the suffering, albeit only of animals, rather than with the immorality of torturing them.’ (34) The Moral Gradation of Punishment o Stephen: The criminal law should be and is a ‘persecution of the grosser forms of vice’, as demonstrated by certain principles ‘universally admitted and acted upon as regulating the amount of punishment’ o Hart describing Stephen: In sentencing, ‘an estimate of the degree of moral wickedness involved in the crime is always relevant.’ (35) ‘But from this fact Stephen… inferred too much.’ (36) ‘[T]his argument is a non sequitur generated by Stephen’s failure to see that the questions ‘What sort of conduct may justifiably be punished?’ and ‘How severely should we punish different offences?’ are distinct and independent questions.’ (36) o While ‘there are many reasons why we might wish the legal gradation of the seriousness of crimes, expressed in its scale of punishments, not to conflict with common estimates of their comparative wickedness’ (36), ‘those who concede that we should attempt to adjust the severity of punishment to the moral gravity of offences are not thereby committed to the view that punishment merely for immorality is justified.’ (37) o One may ‘in perfect consistency’ argue that ‘the only justification for having a system of punishment is to prevent harm and [that] only
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harmful conduct should be punished’, while still agreeing that ‘when the question of the quantum of punishment for such conduct is raised, we should defer to principles which make relative moral wickedness of different offenders a partial determinant of the severity of punishment.’ (37) Private Immorality and Public Indecency o Are prohibitions on bigamy inconsistent with separation of law and morals? ‘I shall attempt to show that [in the case of bigamy] those who would wish to retain this rule of criminal law are not thereby committed to the policy of punishing immorality as such; for its punishment can be supported on other reasonable grounds.’ (39) o Merely living with another person as if in a second marriage is not illegal, ‘but if he goes through a ceremony of marriage, the law steps in not merely to declare it invalid but to punish the bigamist.’ (40) o Such contradictions are primarily justified on the ground that ‘in a country where deep religious significance is attached to monogamous marriage and to the act of solemnizing it, the law against bigamy should be accepted as an attempt to protect religious feelings from offence by a public act desecrating the ceremony.’ (41) However, if ‘the law intervenes in order to protect religious sensibilities from outrage by a public act, the bigamist is punished neither as irreligious nor as immoral but as a nuisance.’ (41) o ‘The example of bigamy shows the need to distinguish between the immorality of a practice and its aspect as a public offensive act or nuisance.’ (43) ‘In sexual matters a similar line generally divides the punishment of immorality from the punishment of indecency.’ (44) ‘Very little sacrifice or suffering is demanded by the law in this instance… The case is therefore utterly different from attempts to enforce sexual morality which may demand the repression of powerful instincts with which personal happiness is intimately connected.’ (43) Moderate and Extreme Critiques of Mill o Lord Devlin maintains a ‘moderate’ thesis; Stephen maintains an ‘extreme’ thesis o The moderate thesis: ‘[A] shared morality is the cement of society; without it there would be aggregates of individuals but no society.’ (48) Devlin: ‘A recognised morality [is] as necessary to society’s existence as a recognised government.’ ‘[W]e must not view conduct in isolation from its effect on the moral code… [O]ne who is “no menace to others” nonetheless may by his immoral conduct “threaten one of the great moral principles on which society is based”.’ (48-49)
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Hart (I) Devlin: Breach of moral principle is an offence ‘against society as a whole’ Devlin: ‘[T]he suppression of vice is as much the law’s business as the suppression of subversive activities.’ o The extreme thesis: ‘[T]he enforcement of morality is regarded as a thing of value, even if immoral acts harm no one directly, or indirectly by weakening the moral cement of society.’ (49) This thesis ‘does not look upon a shared morality as of merely instrumental value analogous to ordered government.’ Varieties of Enforcement o Moderate thesis: contrast between crimes harmful to others (such as murder or assault) and mere immoral conduct (taking place in private) However, all immoral acts, however private their performance, are ultimately harmful due to their damage to ‘the moral principles on which society is based’ o Extreme thesis has a variety of variants: one variant: ‘the legal enforcement of morality is only of instrumental value: it is merely a means, though an indispensable one, for preserving morality, whereas the preservation of morality is the end, valuable in itself, which justifies its legal enforcement’ (54) another variant: ‘there is something intrinsically valuable in the legal enforcement of morality.’ All variants of the extreme thesis ‘do not hold the enforcement or morality or its preservation to be valuable merely because of their beneficial consequences in securing the existence of society.’ (54) o Lord Devlin argues that ‘the preservation of a society’s morality is necessary for its existence’; however, this ‘crucial statement of fact’ is ‘unsupported by evidence; it is Utilitarianism without benefit of facts.’ (54-55) o Enforcement as coercion: ‘[I]t is difficult to understand the assertion that conformity, even if motivated merely by fear of the law’s punishment, is a value worth pursuing… The attribution of value to mere conforming behaviour, in abstraction from both motive and consequences, belongs not to morality but to taboo.’ (57) Submission to coercion ‘seems quite empty of moral value.’ (58) o Enforcement as punishment Arguments in favour claim ‘that what justifies the infliction of punishment is not that it has beneficial consequences on society or on the person punished, but that pain is morally the appropriate or ‘fitting’ return for moral evil done.’ (59) However, ‘the strength of this form of retribution is surely dependent on there being a victim as well as an offender’ (59)
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Hart (I) ‘Retribution here seems to rest on nothing but the implausible claim that in morality two blacks make a white’ (60) Retribution and Denunciation o ‘The most prominent… feature’ of Stephen’s account of the legal enforcement of morality ‘is his general insistence on the legitimacy of “healthiness” of hatred or resentment for the criminal and the desire for revenge on him.’ (61) o ‘Stephen’s insistence on the legitimacy of hatred and of the wish for revenge is certainly central in his whole outlook on punishment’ (61) However, his doctrine also contains a ‘denunciatory element’: the expression ‘in emphatic form moral condemnation of the offender’, and ‘ratification’ of ‘the morality which he has violated’ (63) o Hart: Retribution and denunciation as theories of punishment are ‘uncomfortably close to human sacrifice as an expression of religious worship’ (66) Preservation of Morality and Moral Conservatism o Even if Stephen’s ‘picture of society’ (the belief in a majoritysupported moral code, violation of which must be punished in order to sustain the code) is correct, ‘[c]an anything or nothing be said to support the claim that the prevention of this change [in a permissive direction] and the maintenance of the moral status quo in a society’s morality are values sufficient to offset the cost in human misery which legal enforcement entails?’ (69) o Three propositions in favour of preserving social morality: ‘since all social moralities, whatever else they may contain, make provision… for such universal values as individual freedom, safety of life, and protection from deliberately inflicted harm, there will always be much in terms of social morality which is worth preserving’ (70) ‘It is indeed arguable that a human society in which these values are not recognised at all is neither an empirical nor a logical possibility’ (70) As per Mill, ‘though these essential universal values must be secured, society can not only survive individual divergences in other fields from its prevalent morality, but profit from them’ (71) ‘there is the truth… that the spirit or attitude of mind which characterizes the practice of a social morality is something of very great value and indeed quite vital for men to foster and preserve in any society’ (71) Moral relationships lead one to be aware of ‘universal virtues’, allowing one to ‘take account of the wants, expectations and reactions of others’ (71) However, the value of such virtues is not derived from the fact ‘that they are there accounted values’; such values are rather ‘vital for the conduct of any cooperative form of human life’ (71) o Preservation of morality is distinct from mere moral conservatism
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Hart (I) o ‘To use coercion to maintain the moral status quo at any point in a society’s history would be artificially to arrest the process which gives social institutions their value.’ (75) o Lack of coercion is not the same as indifference ‘Mill’s concern throughout his essay is to restrict the use of coercion, not to promote moral indifference.’ (76) Ronald Dworkin: Law as Integrity Law as Integrity Ronald Dworkin Law's Empire, 1986 Key to Ronald Dworkin’s Constructive Interpretation of legal practice is the conception of Law as Integrity. Law as integrity holds a vision for judges which states that as far as possible judges should identify legal rights and duties on the assumption that they were all created by the community as an entity, and that they express the community’s conception of justice and fairness. According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice. Law as integrity states that the law must speak with one voice, so judges must assume that the law is structured on coherent principles about justice, fairness and procedural due process, and that in all fresh cases which comes before them, judges must enforce these so as to make each person’s situation fair and just by the same standard – that is to say, treat everyone equally. Dworkin argues that, law as integrity offers a blueprint for adjudicator which directs judges to decide cases by using the same methodology from which integrity was derived viz, constructive interpretation. Integrity is both a legislative and an adjudicative principle. Legislative principle requires law makers to try to make the laws morally coherent. Lawmakers are required to ask the assumption that integrity is a distinct ideals of politics, for politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready to begin. Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. Adjudicative principles instruct that the law be seen as coherent in that way, as far as possible. Constructive interpretation is a methodology for interpreting social practices, texts and work of art. 66
Hart (I) The distinctive feature of this is that it is argumentative. The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Preinterpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the postinterpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage. Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best light. For Dworkin, the historical legal record must constitute the source of legal interpretation: this interpretation must fit into the existing both of legal materials. It should not be thought that a judge committed ton law as integrity is required to interpret laws in the light of the purposes which gave rise to them. On the contrary, he is required to impose order over doctrine, not to discover order in the forces that created it. Dworkin is compelled to conclude that what constrain interpretation is not historical legal materials in some objective sense, but the judges convictions about “fit”. According to Dworkin, the constrain upon judges arises from their personal need as individuals to integrate their convictions about “fit” with their convictions about whether their interpretation shows the interpreted practice in its best light. To understand “fit” Dworkin employs the idea of the ‘Chain Novel’. Imagine that a number of novelist agree to write one chapter each of a proposed novel. Clearly, there will be constraints of ‘fit’ upon the author of the second chapter, constraints which will increase through each successive chapter. Because law as integrity sees the law as a coherent whole, law as integrity requires the judges to go through the whole law to consider an interpretation. The interpreted law as integrity holds that judges would both fit and justifies what has gone on before as far as possible. Just as the interpretation within a chain novel, in law it is a delicate balance of political convictions of different sorts. In law, as in literature, these must be sufficiently related, and yet disjointed to allow an overall judgment that trades off an interpretation’s success on one standard against failure on another. If, for example, it is decided in the case of McLoughlin v O’Brian (1983) that Mrs.
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Hart (I) McLoughlin deserves compensation for her injury, then the question that we need to analyze is whether legal practice is seen in a better light if the community accepts the principle that people in Mrs. McLoughlin’s position deserves compensation. To the positivist, in the McLoughlin case, the judges must exercise discretion and make law, which is then applied retrospectively to the parties in the case. It is noted that, if the judge is guided by law as integrity, he is directed to regard as law what morality would suggest to be the best justification for past decisions. If this is so, a judge deciding McLoughlin employs his own moral convictions. If the judge is satisfied that the law as he understands it favors Mrs. McLoughlin, he will feel justified in thus deciding whatever the present legislature thinks, whether or not popular morality concurs. Law as integrity provides a consistency in principle which requires that various standards governing the states use of coercion against the citizen be consistent in order to have a single vision of justice. If a judge deciding the McLoughlin case is tempted to decide against Mrs. McLoughlin, he would first ask himself whether any principled distinction can be drawn between her case and other mothers who suffer emotional damage at the scene of an accident. Positivism is different from law as integrity because it rejects consistency in principle as a source of legal rights. Positivism does not require judges to justify their decisions to the entirety of the law. Positivism does not consider the law as having an integral life of its own. Positivism will present the law as comprising of a set of discrete decisions, which judges have the discretion to make or amend law. On the contrary, law as integrity sees the law as a coherent phenomenon, rather than a set of discrete decisions. Law as integrity requires judges to justify their decisions to the entirety of the law, which is considered to have an integral life of its own. Consistency in principle supposes that people have legal rights which follows from legislation and precedents which enforce coercion. Mindful of this, law as integrity supposes that people are entitled to a coherent and principled extension of past decisions even when judges disagree about what that means. Positivism denies this, since it denies consistency in principle as a judicial virtue for dissecting ambiguous statute and in exact precedents to try to achieve this. The methodology of Dworkin’s model judge, Hercules, emphasizes this point. Law as integrity requires judges to treat the techniques that they use in interpreting statutes and measuring precedents not simply as tools handed down by the legal
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Hart (I) system, but as principles they assume can be justified in political theory, and when that is in doubt they construct a theory of the system to better them. To Dworkin, no mortal judge can or should try to articulate his instinctive working theory or make theory so concrete and detailed, that no further thoughts will be necessary case by case. He must threat any general principles or rules as thumb he has followed in the past as provisional and stand ready to abandon these in favor of more sophisticated and searching analysis when the occasion demands. It is nevertheless possible for any judge to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him. Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies easy cases as well as hard cases and it also shows why they are easy. So easy cases are, for law of integrity, only special cases of hard cases, and, to Dworkin, we need not ask question when we already know the answer. The process of adjudication inherent in the theory of law as integrity yields right answer to question of law. For Dworkin, in most hard cases there are right answers to be hunted by reason and imagination. As a consequence of this conception of law, lawyers are invited to search for an answer in legal materials using reasons and imagination to determine the best way to interpret legal data. It is therefore possible for lawyers to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.
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