Law School Outlines - Jurisprudence_1

1 Juris Outline Prof. Quint Fall 2003 2 ways of looking at law: 1) positivism – law is made by human will. 2) natural law – not something made up by humans. Arises from nature of human beings or divine source. Divine law gets filtered into nature of humans and then is made by humans. I. Question on civil disobedience: 2 texts for today positivism & natural come to forefront in these texts. positivism – segregation I am justified in disobeying human law b/c natural law is the real law. Letter from Birmingham Law, MLK Sit-in demonstrations and marches, blocked traffic. Vietnam war – major civil disobedience Draft card burnings Boston Tea Party Iraq War Slavery – northerners refused to return runaway slaves. Europe – NATO stationed rockets in Germany, 1983. German peace movement. Sit down demonstrations in front of NATO facilities. England – women camped out on common surrounding base with cruise missile. Thoreau – protesting slavery & Mexican war. Refused to pay his taxes. Civil Disobedience: Ghandi (tyranny from British control over India) 1. Was MLK involved in civil disobedience? (city govt said you can’t march, but he did anyway.) Is any illegal act civil disobedience? Motives, knowledge & acceptance of punishment. Change something unjust. Expression/communicating a message. Defin: illegal actions that are intended to communicate a political message. Publicly in a way that identifies themselves. Violation of law that makes a statement. Watergate – one of Nixon’s people gave a TV interview. Break-in was a part of a larger set of govt misdeeds. Civil rights people violated law for greater good. Idea about way things out to be. Nixon people thought acting for greater good – help protect the govt. 2 Surface plausibility to this argument. Not the same thing – trying to avoid being caught; not making a public stmt. *In French resistance in WWII, Germans preoccupied your town, you decide to kill a German soldier. Is it civil disobedience? In 1789 Paris tear down Bastille, is it civil disobedience? No. Not raising issues, bringing down power structure. Not if just mob mentality. Need to think through actions. What are your motives? French monarchy also being destroyed. Nonviolent element. Destruction, damage when tear down Bastille. Bad thing going on, people ought to pay attention. Not revolution, not real resistence to govt. Protected 1st Amend speech to civil disobed (permit to march) – bring down govt/revolution may be some communicative aspect but main goal is to destroy. Goal is a change in regime. Intermediate position -- CD is in the middle between two extremes. Don’t want to destroy govt. We’ll accept framework of govt but certain things are so bad that we are willing to break law to b4ring them to people’s attention. (King) Maybe Thoreau wanted to destroy US govt. CD – attempt to convince people. Power of speech is dramaticized/heightened by someone’s willingness to be arrested. If willing to be arrested, people might listen to your argument more seriously. Ghandi and MLK in a religious way thought that suffering could persuade people. Moral force of suffering will prick the conscience of society. Awakening moral sense of oppressor. Isn’t CD immoral? Moral obligation to obey law? Individual political sensibility decides this. Thoreau – different forms of CD. One category: violates the law in order to persuade majority that something govt is doing is wrong. Accepting penalty will get people’s attention. Ghandi type – actual suffering will awaken moral sense of majority. Dispute: does damage to property count as violence? (burn SUV). Not traditional CD. MLKAre some kinds of CD permissible and others not? MLK distinguishes between two types of law: just and unjust laws. When move from protected speech to violation of law, pg 4 “an unjust law is not law at all.” Not every law made by will of human beings is a valid law. Moral responsibility to disobey unjust laws. Human law must be subject to non-human, superior law. What about people that believed in segregation? How do we tell the difference between a just or unjust law? 3 “segregation distorts the soul and damage the personality.” Good spiritedness, happy, satisfied, healthy soul is an ancient idea. Segregator has false idea of superiority and segregated leads to inferiority. Not just people fenced out but how about white people? Inflates, distorts own self-worth. Structures of hierarchy don’t make people happy. Ghandi – not just for benefits of oppressed; oppressors are also damaged by these laws. German 1980s – police are victims in the same way. Their souls also being distorted. Marrtin Bupert – “I it” and “I thou” Unjust law – power majority group compels a minority group to obey but does not make binding on itself. (ex: MD law school not allow blacks; disobeyed Sp Ct Plessey case.) A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. (political approach) Laws made in this way likely to distort the soul. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. Thoreau: Didn’t want to have his tax dollars supporting slavery & Mexican war. He did not want to be an accomplice. Focus is not to convince others. He will not support slavery. Not trying to eradicate via a movement. Wanted individuals to take actions. Every person has a conscience. A conscience makes people human beings. Conscience first, then a relationship to govt next. (Individualist idea.) Not a political movement. Individual should not let his conscience be violated. “It is not a man’s duty…enormous wrong.” (MLK would be horrified.) “He must wash his hands of it, not to give it practically his support.” Significant differences between Thoreau and MLK on CD. Two add'l texts: Luban, 87 Mich L Rev 2152 Rawls, in Hugo A. Bedau Civil Disobedience pp 103-121 (1991) Add'l points in MLK: 1) at the beginning, steps necessary in nonviolent campaign. 4 basic steps. Argument against those who say you are rushing into things and lead to chaos. Germany in 1980s was same argument - CD will lead to chaos and social structure will break down. MLK says did not rush into this - 4 steps. Collect and evaluate facts. Then negotiate. Try to come to an agreement so you don't need to break the law. Process of mutual educations -- oppressed and oppressors. Self-purification - points in direction of religious view of CD. 4 Search for truth that is more religious than political. Purification also involves training. Nonviolence CD is not easy. Police take you away and dogs come. Accept violence without responding takes training. Internalize these ideas so that under stress you would not react violently. Role-playing. step 4: direct action/CD. Marches, sit-ins, etc. Difference between just and unjust laws -- how to distinguish. Religious aspect in King -- just and unjust if it uplift human personality it is just. If it distorts the soul, the law is unjust. Laws of segregation distort the soul. The minority had no part in creating the segregation laws. Reference to Hitler - everything he did was "legal." Natural law comes to the head today with regime change. East German govt dissolve in 1990. Should dictator or others be prosecuted for war crimes? Can't prosecute me now b/c what I did was legal when I did it. East German border guards shot people trying to escape over the border. What about an unjust law is no law? Relevant today. - One who breaks an unjust law must do so openly and lovingly. Religious, not intended to be antagonistic to police. Police are also victims. - Biggest stumbling block might be the complacent moderates. Wake up call. Deal with us CDs or more radicals will take action and try to burn the cities, etc. Thoreau See a different general idea of CD in Thoreau. His basic point was that he is asserting claims of conscience. Everyone has a conscience and everyone should follow conscience. Wash his hands of it. Not part of movement that will change anything. Duty is not to be associated with evil. Nonpersuasive. Individualist point of view. MLK asks objection question -- just or unjust law. - Alluded to in Thoreau. If enough people do it, it will stop the govt and they will give in. "stop the machine" Can make it too hard for govt -- arrest people in large numbers. Make it hard for majority. Bring whole judicial system to a halt. (non-persuasive use) - Theorist practitioners: 2 persusasive and 2 non-persuasive. - Political - Rawls essay. Violate law for purpose of dramatizing. Makes clear the intensity of your view and majority look more carefully your arguments. Must be done in public and be willing to accept punishment. CD can be exercised where the state is basically just but with one big unjustice. Assumes govt won't come in with tanks and roll over you. Like judicial review where somehow the minority understand the const principles better than majority. religious persuasive Ghandi and MLK to some extent. Ghandi thought the moral force of the suffering of those CDs will have impact on majority. Power of suffering will appeal to your moral sense. Opening oneself to serious injury or death in Ghandi's time. Thoreau non-persuasive Exercise own conscience. Doesn't matter what govt does. He is preserving his own conscience. Obstruction non-persuasive: 5 Making it too complicated or expensive for govt to continue with this policy. Dworkin essay. Rawls - convince majority they are wrong and adopt new policies. What about laws that aren't unjust but just unwise? MLK cites Augustine and Aquanais. An unjust law is no law or an unjust law is not rooted in eternal law. Summa Theologica - his view of law and natural law. Natural law positivism - law is made by the human will. No matter what the content. The decision of human will make law. Natural law - not everything the human will wills is law. Law is determined outside of human will. Limiting factors, nature of human beings or a relgious idea. Outside of human will is another force that makes law. St Thomas Aquanais Midevil intellectuals venerated the ancients. Many works of ancient writers have not survived. Aristotle was basically unknown. 11th and 12th centuries, Arabic scholars rediscovered Aristotle and introduced him to Western Europe. Shock to church theologians. Intellectual system could be seen as rival system to theologians. Aqu tried to combine Aristotle with views of church into synthesis. Deductive manner of thinking. Roger Bacon was seen as an early scientist - inductive. Assuming basic positions and arguing deductively from these. - Argumentative structure of writing. Starts out with 3 or more objections to a proposition. Apostle is St. Paul. Sent out to convert people to Christianitty. Objections based on some other authority - Aristotle or St. Paul etc. Cast of characters: philosopher St. Augustine St. Isidore Tully= Cicero The Jurist = Emporer Justinian (materials of Roman law were pulled together and codified - remains foundation of German and French civil law) Ques 90 The Essence of Law - law is something pertaining to reason. Example of a law that does not pertain to reason: wear an orange shirt on Weds. Process go through could pertain to reasoning. Work towards some sensible goal. Instinct - touch a tadpole and it does X. Fomes of sin discussion - 6 could be laws that are the result of instinct. pg 140, 147: reply obj 2 makes clear talking about law in shirt drawer ense. Draws connection between law and parallel reasoning process. The act of reasoning and something produced by the act. Also true to speculative reason. Speculative reason - he starts with a premise. 1. All people are mortal. 2. Socrates is a person. 3. Socrates is mortal. Reasoning by syllogisms. Some indemonstrable principles that are known Statement about reality - could be right or wrong. Doesn't say what people out to do. practical reason Don't run a red light. Do good to others. Command or instruction. Laid down with intention that it will have a result or reason. Apply reason (is this a red light) and then come out with an instruction about how you should act. Reason about intermediate actions when do good to others. Get through all of Aquinas next time. aquanis continued question 90 Idea that is central to the whole discussion of law in aquanis is In what way is law pertaining to reason? - inductive method. Happiness of people is essential to law and we can determine from that what the rules ought to be. *aquanis says law works from the other way around. Law pertains to reason b/c it contains reasoning from these propositions. start out with speculative reason (logic, mathematics)/proposition which tells us something about the world. statement. may be right or wrong. If a=b and c=b then c=a. statements about things in the world. 1. all persons are mortal 2. socarates is a person 3. socrates is mortal aquainas compares that to practical reasoning. the conclusion is not a description. Start with proposition about ways in which people out to act, may be a general proposition. ex; people should be honest. People ought to get along with other people in society. People should never be deceptive. If you enter into agreement, you should go through with it. x has entered into an agreement so x should carry out the agreement. the conclusion is a prop about what someone ought to do. -speculative reasoning does not tell you anything about how someone ought to act. -law is something pertaining to reason. 2nd art law should be directed toward the common good. 7 why should it be directed to common good? "the last end of human life is bliss or happiness...." everyone is the same. No reason to choose happiness of one person over the happiness of another. No reason for law to favor one. who makes law? person or group over all should make it. top pg 136. the intention of law giver is to lead men to virtue but every man can lead someone to virtue. why can't individual man make law? You can't enforce it. pg 136 reply obj 2. No coercive power is vested in the whole people or in some public personage. Law must have coercive power. public personage - king who has responsibility and cares for his people, almost like a father. If you are truly virtuous, you probably don't need the law. Part of salvation is acting in a virtuous way. comes habituated to it and then you will continue. He has idea that you are a happier when you are acting virtuously. Hard to get back to path of virtue so you need strong arm of law to bring you back. does law need to be promulgated (made public); Yes. violation of due process for laws not to be promulgated. Unfair and tyranical to be penalized by non-public law. aqu - promulgation is necessary for the law to obtain its force. we'll promulgate so you know what to do to be good. Habituating quality of the law would not exist if the law was not promulgated. -the definition of law= it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated. read it out loud and rely on community to spread the word. It will be durable by also being written. 4 kinds of laws; 1. eternal - law has always existed since beginning of god. god is eternal and has always been there so eternal law existed whether people knew it or not. eventually promulgated to human. basis of all law. very idea of the government of thing in god the rule of the universe. ex; Law of gravity. Law is something that exits outside of human beings. ** def: god has in god's mind the idea of how things should be governed and organized. Ordinary person cannot understand the mind of god. -eternal law is that which it is right that all things should be most orderly. 2. natural def: rational creature's participation of the eternal law. -not solely based in nature of human beings, comes from eternal law. Imprint on minds of individuals. Imprint on us of the divine light. we can discern what is good and what is evil. we can't see the light but there are shadows/imprints that come into our own mind. **natural law provides the first premise. ex; you should be good. NL provide su 3. human 4. divine 8 (god is outside of time. time only exists for humans.) NL provides the initial propositions; starting point in practical reasoning same with mathematical speculative reasoning -- can't prove them; have to assume. Not from experience but from divine source. - NL is not complete. - certain general principles come from divine law. 3. Human law NL is so general (how do you be good to another human?) - details of that proposition are way that the human law works. More specific answers. It has to be consistent from natural law. Draws upon general principles of natural law. 4. divine law why a need for divine law? divine law: religious law found in scriptures. 4 reasons; a. IF man were ordained to no other end there would be no need for man to have any other direction. end of life = eternal happiness. *human reason isn't good enough for everything. good enough for the earth but want to get to heaven for eternal life. eternal life is our real goal and human law isn't good enough fort hat. *Human law cannot punish all evil things. there are limits. *distinguishing external acts versus internal thoughts. Human law coerces virtuous activities but divine law works on thoughts. (committing adultery in his heart. Human law does not punish but divine law might.) question 92 the effect of law is to make men good. -proper effect of law is to make those to whom it is given, good, either simpy or in some particular respet. -lawgivers make men good by habituating them to good work. *tyrannical law is not a law. aquains doesn't necessary say you shouldn't obey an unjust law. Might be good with respect to that particular government. whether acts of law are suitably assigned? some acts are good generally for the law commands all acts of virtue; some acts are evil and some are indifferent. when you do good, your life is better and you are happier. Pg 149 not being able to know god. EL not known to all. see the suns rays but not see the sun. Maybe a few saints that can see god. can know the reflections of god's work. pg 150 all laws proceed from the eternal law. 9 reply obj 2; not clear if one should follow an unjust law. pg 156-157 Only section that gives us an inclining to the substantive content of natural law. several indemonstrative principlas of natural law. speculative reason; being is the core. practical reason is focused towards the good - what one should do. pg 157 basic principles 1. incllination to good in accordance with the nature. self-preservation is a main principle of NL. 2. inclination to things which pertain to him specially. animals do this - don't need reason. 3. inclination to good, accoreding to nature of his reason, which nature is proper to him. -to shun ignorance, to avoid offending those among whom one has to live. pg 161 whether the NL can be canged? cannot be blotted out. always there. can be surpressed, disregarded, or forgotten. It is imprint of eternal law in human mind. pg 164. why should laws be framed by men? why not let judges balance each case? Not effective if not framed. In order that man might have peace and virtue, it was necessary for laws to be framed. should be in general form. -general rules should be made in advance so they are not affected by the judgment of the litigants. **can't have same people making and enforcing the laws. pg 166 whether every human law is6derivedfrom the natural law? that which is not just seems to be no law at all; wherefore the force of a law depends on the extent of its justice. MLK refers to this passage. pg 168 The Law of Nations: ius gentium. applies among different nations or groups. romans had their own law but then roman empire spread out and occupied other nations. If you occupy, you've got to rule. chaos if each group has own law for major things. Make a new law that takes best idea from all nations. emalgum of core of differnet legal citizens. (public international law today was called law of nations) general law that can be applied among nations. US constitution: sec 10. congress recognized the law of nations. law of nations shoul 9/11 part3 NL is reflected in the natural law. 10 (east german border guards shooting people leaving and not against law when we did it. - some things so terrible that natural law overrules them. NL says that statute is a nullity. Look to the law of nations/international law. find out general view. *aquains says law of nations is not a natural law. law of nations was made by humans. after fuller: Locke 223-257 257-272 (not in class) 272-83 rawls 305-328 aqu pg 164 More interested in HUMAN LAW. pg 164 deals with the question of generality of law. const ideas of due process - requires a kind of regularity if law is general. can't have a new rule made up for each case. distinction between common law method and statutes/codes. Laws to be framed by should there be laws? 1st obj - admonitions more effective. 2nd obj. - animate justice (decisions of judges in each case - can take in all factors in all cases) 3rd obj – every human action is distctin unique and infinite in number. wise people should look into each situation. *aqu says you need laws. Power of the law that the way you train people to virtue is thourgh the compulsion of the law. Need a rule and fear of punishment. People must be compelled - admonitions are not enough. get better results if a few people sit down ahead of time to decide how the laws should be - abstract and unbiased. shouldn't make rule at the same time as crime. May be distracted by love, hate, or cupidity. pg 170 laws made to train people. art 1: focuses on question of generality. obj 3- advatnage of generality - trains people. disadvantage is that with general rules, they don't work in all cases. bad results in some cases. No balancing with generality - courts can't consider all factors. aqu says it's true but the aim of the law is the common good -- laws should apply to most things. You don't have a useful rule if it's not applicable to many things. some things which you cannot achieve complete certainty -- not with law. Law is made for the greater number of instances. 2nd article pg 171 Human law forbids all vices? a lot of common sense. Human laws should be in keeping with their condition. Not dealing with perfect beings. Law forbids the more grievous vices from which it is possible for the majority to abstain. Must be done gradually. Humans are sinful and you do what you can. don't overburden them people will break out into greater evils. Human law falls short of eternal law. Humans who want to be perfect should follow divine law as set out in scriptures. 11 pg 174 art 4 does HL bind a man in conscience? whether you are bound to obey it-- CD? Just laws bind the conscience but unjust laws do not. Unjust in two ways contrary to human good.... pg 175. authority imposes subjects for his own cupidity or vainglory and when burdens are imposed unequally on the community. MLK - any law that degrades people is not just Unjust law is code that is made by majority that copels minority to follow. (ex: tax code; some groups have to give more days to the military than other groups.) aqu hedges don't have to follow unjust law except in order to avoid scandal or disturbance. balance. sometmes your right are violated but not worth rising up. -- If contrary to commandments of god, don't follow unjust laws! (no hedging) Last sections deal with modern issues: pg 177 art 6 Interpretations: Obj 1- 3: Literalist school of interpretation. can tell what is meant by the text and don't go beyond it. act by the letter of the law. If you interpret the law, you are makng a new law. People who made law were wise and you should not judge their intentions. -- aqu - should keep in mind the common good. statute is intended to achieve some good. * Must bear in mind the principle behind the statute. No one is smart enough to know about all the possible scenarios that will arise. ex: open the city gates to let in the troops since purpose is to preserve the city. In case of sudden peril, citizen must make a deicion. *Not cd. Not saying law is unjust. Law is imperfect. Interpretation of law that honors the spirit of the law. pg 179 change in laws. can NL be changed? NL is permanent but human mind is changing. EL is unchanging also. Human law can be changed but should do so slowly. Keep in mind customs. HL is a product of human reason and like any human thing it won't be perfect. there will be mistakes. 1) reasoning was imperfect and 2) society changes. (laws for (new internet laws) If politicians become corrupt, the laws must change. any change in society shouldn't immediately result in a change of law -- concerned with stability of society. do it gradually or not at all if * benefit of changing the law must be more than the harm of less stability. Weigh benefits against the costs. pg 181. art 3 pg 181. custom can change law? HL comes from will of people regulated by reason. * law created by custom. More solid indication of reason than language. actions stronger than words. Must be done by the whole community. 12 definte NL as the view that law not made entirely from human will but came from another source. external source is a divine source - comes from god. Outside of human will. ****Finnish*** Another NL theory was that it came from HUMAN NATURE. - certain basic forms of good in the nature of human beings. Use this knowledge of basic values to create NL from them. Doesn't rest on God. - HL is from outside of something from humans. pg 196 Principles of NL have no history. ex: No history in law of gravity. always been there. Unchangeable. always the same. for history, you must have change. -- Theories or applications might have a history. (Heavier bodies fall at faster rate than light bodies.) - Only a history of what people think of NL. - basic forms of human good are self-evident, obvious. pg 198. - Know truth through observation, after we have experienced life (examination of your own mind/nature). speculative knowledge - curiousity. abstract knowledge, just to know is a basic good. (Not knowledge about how to build a roof.) - everyone has desire for knowledge. - Is self-evident but takes sustained attention. can come to conclusion that it's correct without any external evidence. (look into own mind) - one theory is desire for knowledge was originally part of sex drive is separate. Important point is knowledge is a basic value, not important as to why. - relfection is an attempt to understand one's own character or nature. - human beings differ in their determination to pursue knowedge. * People pursue basic values in different ways. Other basic values: Life - bodily health and freedom from pain Play - has its own value aesthetic experience - looking and enjoying at work of art. friendship - acting for one's friends purposes, one's friends well-being. Is this essential? pracitable reasonableness -Putting order into life. figuring out how to act based on things you know. Use reason/evidence to figure out how to act. Continuing with finnis. finnis - positivism vs. natural law theories. Pos - human will can determine law. Natural - human will can't do it all. basic ideas of law come from divine law or from nature of human beings. Finnis - shares a religious view but his writings not logically connected to religious view. He considers the nature of human beings. basic goods of life are self-evident. Nature of people are generally the same. 13 does not come from human will. Must look within yourself. Knowledge - knowing of something that is true and desirable for its own sake. good to know facts that you may never use. Practical reasonableness intelligent and reasonable order into one's own actions and habits and practical attitudes. Process by which you act in the world to achieve important goals. religiion - almost seems like an extension of practical reasonableness. are the ends you seek connected to a higher order? speculating about things you won't be able to answer. also connected to knowledge - seeking ideas. anything missing from list? -Love (maybe under friendship) -property/ownership (idea of owning something) (maybe included under life category) probably comes and goes in all of the different pieces. reasonable legal system will be designed to help people achieve these 7 basic goods. allows people their own choices to seek these goods. Idea of common good...see in aqu, finnis, locke. Jeremy benthom - greatest good of the greatest number. Utilitarianism - political theory - greatest total happiness. ethical - when you do an act, you should always choose the act that will provide the greatest happiness to greatest number. -Each person's happiness is worth the same. Law ought to be arranged to get the greatest happiness. Problem: doesn't take into account that a lot of people could be made happy by oppressing a small group. get great happiness by depriving people of rights. (torture, exploiting people) Utilitarism would say okay. *How do you protect rights in utilitarianism? bill of rights - some things that majority won't be able to do. Finnis bothered by common good - incoherent, senseless, unworkable. really a calculus of happiness. How do you quantify happiness of others? Who is going to measure this? finnis says can't measure happiness. Impossible to figure out. *doesn't take rights of individuals into account -- will sacrifice some individuals. definition of common good: a set of conditions which enables.... pg 208. -Procedural idea. govt assistance. - system that enables members to pursue common goods in each individual way. ex: baseball game. system to allow all who want to play and would provide a ballpark, balls, nice field. No rain. sense of satisfaction for everyone playing the game. Legal system should be directed to achieving common good on this way. Help us pursue common good on his own way. 14 Law/coercion If someone has violated a law, that creates an imbalance in society. fairness dictates he must be punished to take away the advantage. -deontological - some things are not right and some things are right. Moral wrong to break a promise. Most religious views are deontological. -consequentialist - Utilitarianism. ends justify means. FULLER classified as natural law but his ideas are different than aqui and Finnis. More procedural idea -- certain limitation of law which are inherit with law. Law must meet certain criteria or there is no moral obligation to obey it. 8 ways to fail to make law: (category of due process) 1) law must be general in nature. can't be made up case-by-case. FUler looks at law from the citizen point of view; person who is supposed to obey law. Aqu looks at it from different perspective. some conflict between common law vs. generality. Need some sort of pattern - can extract this from the common law. 2) must be promulgated. If we don't know it, it can't be law. 3) set out in advance. avoid abuse of retroactive legi 4) law must be clear so people can understand it. 5) must be consistent and not full of contradictions. 6) content of law must be such as not impossible to carry out. (ex: file a report in 10 seconds) can't create a moral obligation if impossible. 7) need some degree of stability. can't be changing all the time. Aqu had same view. 8) some connection between cases and rules/statutes. Legal system must satisfy all 8 criteria. No moral obligation to follow without these basics. Fuller goes farther than Aqu. Aqu never says no obligation to follow laws. ex: natural law in adjudication. Major change in regime. dictator to democracy. nazi germany in 1945 and east german 1990. Many people kiled, tortured. what sort of compensation should survivors/heirs receive? - How should oppressors be handled now? these terrible things were legal under past regime. democratic regime accepts act only criminal if illegal when committed (no ex post facto laws) - 1961 wall built between East and west germany. Border guards had orders to shoot to stop people leaving East germany. Not exactly ordered to kill. weapons were not precise. Guards prosecuted for manslaughter after unification. - see handout-Law violated superior legal principles of justice and humanity so should have been ignored. radbruch - Non-retroactivity is only one value and natural law should prevail. should have ignore positive law in this instance. german court also tries to reinterpret statute to say border shootings were illegal even when it was done. Footnote 90 Fuller says to Pappe. Not saying statutes were void (natural law) but saying Nazi judges misinterpreted the statutes of their own judgment. 15 Prof's views: More honest way is to disregard those statutes. Non-retoroactivty outweighed by other values. LOCKE another aspect of natural law thinking. focus on individual rights than other natural law philosophers. (rawls also focus on ind rights) - Aqu - goal of individual should be salvation. Importance of promulgation and generality of law was to have effective system to guide people in right direction. - In Locke, natural law is there more or less as a background. rights will hopefully lead to thriving of individual. life, liberty and state (property). Historical background given in introduction. two Treatises published, James II was ejected from england. 1640-1660: english revolution against claims of early stewards. sweeping claims of broader degree of inde power to make law and govt decisions. english citizens not used to this. Oppositions to claims of stewards. Undercurrent of this in Locke. charles II returned in 1660 and was crowned King. succeeded by is brother, James II. also, major religious struggles in this period. Later stewards suspected of being catholicism. carles II had "sold" british govt to Louis XIV - some undercurrents. James II was king from 1685-1688 and was ejected and then lived in france. Next, william and Mary took over. 1688. In 1688, Parliament really took over control and tide was against monarchy. In 1688, Locke's books published but actually written earlier. Isaac Newton was a parallel prominent figure. More background: early proponent of the labor theory of value: value of any property/object is ultimately measured by the amount of labor that has gone into it. Property becomes yours due to the labor you put into it. (farmer growing wheat.) start out with various positions. begin with STATE OF NATURE: no authority, take care of own rights. there is the law of nature. Hobbes - life of humans in nature is nasty, brutish and short. -Locke says you could have war in state of nature but not neccesary. - Halfway between garden of eden and Hobbes. - everyone entitled to property which you put labor it. can deny others the right of your goods. PRESERVE your property. - someone steals jar from your home. depends on who made it. Judging/adjuciation - each person can judge and enforce. both person who steals jar and person who had jar stolen. enter "civil society" b/c want to stop bad behavior of others. get protection of property by power of numbers; get reduction of uncertainty. give up right alone to preserve property through force and to adjudicate. How do you form society? society arises through consent. If person that does not join society, each individual must decide whether they are in or out. If not in, don't have obliations and don't get beneifts. Power of numbers is important. Who make decisions? MAJORITY decides. Once you are in, you are in and majority acts. In forever if expressly consent. Must follow will of majority. Obligation to act according to majority. Given up complete freedom. - If people don't obey majority, society would immedatiely be dissolved. 16 - (against cd, you get benefits of society so in return you must follow the majority laws even if you don't like them.) Locke is not friendly to civil disob but plenty of room for revolution in Locke. - OBLIGATION TO OBEY. given up freedom but something more valuable: life, liberty, preservation of state (property). - state dissolved by govt which has exceeded its powers. then you have revolution and that's okay. If govt is not excessive, you must obey. - In Locke, all people are equal (revoltionary idea.) - only lawful origin of govt is the consent of the people. - absolute monarchy is a system that is inconsistent with civil society b/c idea is in civil society you give away your authority but some things you haven't given away (inalienable rights). life, liberty and states. what you are giving to govt. Only give govt the authority to govern without infringing infringing on basic rights for why you entered civil society in the first place. - Not a benefit if monarch takes your property. - reflection on private and public law: with absolute monarchy may be a decent system of public law; protect those who are laboring for monarch's benefit. Origins of proper govt: property means a broader idea here (life and some natural liberty is included) - (supporters of stewards believed in the theory of divine right of kings. govt of societies created from patriarchal divine right. began with adam.) Locke discusses various objections to his theories: 1) no record of any govt being formed like this. - govt comes before history and not well recorded since happened a long time ago. - He does concede alot of kingly govts in early periods but says still by consent. families used to this and chose kingly govts. 2) humans born under govt so can't give consent to submit to it. ( Locke thinks can't consent until you get to certain age.) - Locke says new govts continually are formed so people can leave. - divide consent into express and tacit. If you grow up in society, what is express consent? voting, joining military, pledge of allegiance. Locke says will be alot of tacit consent. Maybe if grandfather works land and you do too, tacit consent. You could leave the property. (Kings now live in luxury and are ambitious and have goals different fro that of society.) treason defined in const. Have to be our political society to commit treaason. anyone born or naturalized in US are citizens. Lockean notion involves active consent - either by words or tacit. giving up alot to join society but not giving up everything. some limits on what you are givingup. giving up freedom in order to be protected. liberty - to be under legislature established by consent in the commonwealth. pg 237. (not a complete liberty. can do anything within the laws. ccan't drive more than 60mph.) 3 ways civil society/govt protects you: 1) having a legislature that acts through established, settled, known law. Includes idea of generality and promulgation. Legislature makes general rules and doesn't have to be in session all the time. *Legis is principle power; most important. violation of trust if legis goes beyond its powers. 17 2) Known and indifferent judges. 3) Have to have executive. Has to be there all the time to enforce laws. (basic ideas of separation of powers) Divides exec power and federative power, generally embodied in same official. exec power says laws shall be faithfully executed. federative powers - Pres has foreign affairs powers, treaties, accept ambassadors.. fed power of Pres gets more scope -- can't always make rules for it. dames v. reagan 1981. No treaty, no legis approv. Pres entered into agreement with Iran to resolve hostage situation. Iranian claims tribunal in Hague successful. Did Pres have authority on his own to make agreement? Sp Ct said yes. Dealing with foreign govts and have to respond quickly. Locke sets out structure of govt which should lead to this kind of liberty. Basic pt of public govt is to act for public good. exec can take action quickly. Legis must act for good of people. Legis can't take people's property. Sgt can put you in front of cannon but can't take one farthing of your property. WHAT happens when govt/exec acts in a way inconsistent with Locke's structure of govt? Govt dissolves and doesn't exist anymore. Not Locke's idea that people dissolve govt. govt an be dissolved if govt goes beyond limits which grow out of nature of consent. - If Prince substitutes his will for will of legislature then govt is dissolved. - If manner of elections radically changed. - If exec submits himself to foreign govt. govt dissolves and people can then form new govt. Finishing up Locke. Hobbes & Kant are also social contract theorists. 16th c. – Locke – natural rights theorists. Natural law gives natural rights to individuals. Individualism. Individ does not find state of nature, so comes into civil society by choice. Consent to continue on in society then represent. Institution political conseq of structure – individual consents via limited consent – property (life, liberty, estate) must be preserved. Limited consent Gov can be dissolved – if society destroyed by force of arms. “” – if governors act badly; violates consent. Locke – legislature is core of govt; periodically elected; represents rule of law. Locke’s list 4 ways govt can be dissolved. Right of volution against duly constituted govt. Focusing on individual as key unit. Implies equality of individuals; legitimacy comes from the people. Declaration of Independence – ideas came from Locke. Rawls – “Theory of Justice” market rebirth of political philosophy What makes something morally wrong, when it was decided by a democratic govt? (Vietnam war) Principles of justice – theories of justice 18 Rawls – in social K tradition but diff from Locke. Original position – precedes society (hypothetical) People are egotists – want to achieve benefits for themselves. Relective equilibrium. Justice as fairness – “Golden Rule” do unto others – Kant. No one deserves advantages. Neutrality Moral core of individual, shom of qualities Role that everyone is self-seeking to get fairest .. Difference principle – in equalities in real society – can’t change it. OK if it makes everyone “better off” than if everyone was equal Basic capitalist – tricle down. Taxing & charity – justifies welfare state. Michaelman – Protect of Pro them 14th Amend. Compare Rawls to Locke – Social K but diff idea Locke stops at govt – structure of govt Rawls – society should be organized by govt. Article by Rawls. Hugeo Bedak – Civil Disobedience in Focus K3269.C58 two add'l readings from rawls: Mary Matsuto New Mexico Law review rawls araticle. Matsuto perspective of feminist literature. criticized rawls' original psition and abstraactness (people not understanding their roles in society). - criticizes original position traits, self-seeking and not interested in others. rationalaty - want to achieve the best position for themselves. - mistake and misguided. People not like that. bad place to start. Male figures - should start with people in original position interested in cooperation and collaaberation, not self-seeking. - too abstract and disregards traits more found in women. - ignores lessons of feminist movement. essay of rawls on civil disobedience: - 4 basic theories of cd; 1. political form of persuasive cd - persude majority that it's wrong by political argument. willing to accept punishment for minor illegal acts. *rawls* 2. religious - ghandi and MLK. persuade majority that majority is wrong through suffering. will appeal to moral sense of majorty. 19 -both of these require benevolence of majority. assume majority is open to persuasion. 3. thoreau preserve the integrity of myown conscience slavery. will not pay taxes. conscience requires me to disobey the law. Not out to change the world - protection of own conscience. - not apersuasive use of cd 4. non-persuasive. cd tries to affect govt and stop process. sand in the machine process. make things so uncomfortable and inconvenient that they will have to stop process. rawls' article: cd takes place in society that is nearly just, not tyranical. cd doesn't work in tyranical. society set up by people following two principles of orignal position. (can you really imagine a society that is nearly just but has a few serious injustices?) conflct of duties: general duty to comply with law - getting a lot of benefit from all obeying law but also duty to oppose injustice. - his defin of cd is public non-violent yet political act..... * even though society is nearly just and built on principles of justice, cd tries to recall the majority to those principles. break the law in non-violent way to make you focus on this point. Principles chosen in original position. - people in original posi would agree that cd of this kind morally if not legally justified. - cd only justified to challenge serious infringements of equal rights principle or equal opp for all princ. NOT the difference principle. - cd stays within framework of fidelity of law, stabilzing device. Purpose to protect the basic principles of justice and assure govt stays within these principles. - rawls would reject notion of sand in the wheels. - comment on thoreau: look at cd as something supplementary to judicial review. cd functions as minorities pushing majorites back to principles of justice. CD useful when courts will not act. If courts won't get into certain areas, ancillary technique even more important. (ex: court wouldn't get involved in constitutionality of vietnam war.) Positivist - law is a product of human will. there is nothing else that determines whether it is law. natural law - limits on human will. Principles come from outside the human will. finnis - non-religious, natural law. Law determined by the way people are, goods that exist outside of will. Locke - rights of individuals which grow up into a legal system. exists from outside of human will. Inalienable; can't give them your way. govt that takes them away destroys the govt. rawls - Original position should limit the govt through principles. AUSTIN - interested in looking at law in a different way. - on one side is law and other side is everything else. don't confuse the two sides. - find a sovereign and no limitation on what the sovereign can do. whatever sovereign does should be considered law. - austin believes in god but separates that from jurisprudence. - if sovereign makes god's law the law then fine. 20 - pg 518. definition of law: rule laid down for the guidance of an intelligent being by an intelligent being having power over him. pg 137 aquinas: ordinance of reason for the common good, made by him who has care of the community, and promulgated. - both notions of reasonableness. another way of saying, made by an intelligent being for an intelligent being. - promulgated and laid down are the same. People must know what the law is. - differnce: aqu - for the common good. austin doesn't care - no substantive requirement. austin would want legislature to make law based on utilitarian calculcus but if they don't it is still a law. - pg 518: 4 things that might be called law: 1. divine law/law of god. It is a form of law b/c it has a sanction. Not metaphorical - god will punish you if you don't follow it. true law but a different system than positive law. - pos law - appropriate matter of jurisprudence. positive law vs. positive morality pos morality - not a sovereign that sanction. law of honor - dueling code. If challenged to a duel and you said no, you were shunned by society. end of social life. this is positive morality. social rule but not law enforced by soverign. - no necessary connection between law and morality. Morality might influence law if itis the decision of the sovereign. - metaphorical law - law of gravity, laws of lower animals (paramisium, stimulus). Not real laws b/c not rule laid down for guidance by intelligent being for an inteligent being. completely outside true positive law. - Most important: law is a comand. bottom pg 519. Command: desire that someone do something. Must be coupled with possibility of punishent if he does not comply with the desire. - Must be both purpose and power. - person who receives the command (ex: pay 10% of income in taxes). duty arises from commander's power to punish. evil applies is the sanction or penalty. - power of comander rests on MIGHT. - duty to obey it. austin not talking about moral duty. If you are in society, you have a duty to follow laws. - pg 523-524. generality of law - most laws general in two fold manner: 1. enjoining of forbidding general acts of kinds or sorts 2. binding as the whole community, or at least, whole classes of its members. ex: no more corn can be brought into port. general and applies to everyone. pg 528 list of things not law; not commands: 1. declaratory laws. Interpretation. Not a law b/c not a new command, just expounding on the old law. ex: regulatory agencies (sometimes establish new law under guide of expounding the old) Maybe no statutes really like this. courts interpreted debated parts of regulations. 2. laws to repeal. repeal 10% income tax. Now nothing there. 21 3. imperfect laws. Law that has no punishment. ex: decriminalize maarijuana. says it's wrong but no sanction. structural laws that set up admin agencies. admin statutes with no sanctions. Judge-made law (customary laws) pg 530-531. two groups: laws from the people vs. fiction that doesn't have the will of the sovereign. austin disagrees with both. - must be law enforced by the courts. positive moralaity is what people just follow along but switches to pos law when it is enforced by the courts. - tacit command: if the desire by signified by conduct. Lecture I sets out the basic command theory of law. Not sure what a sovereign is. Lecture II: divine law tells us how we should act if we are the soverign. Legislature can look in bible for divine law. Only a portion is revealed. - austin rejects theory of moral sense. reason is slow and fallable. we can't very far with reason. spark, feelings within us is immediate and not fallable. also called conscience. He rejcts .2. general utility (greatest happiness for greatest number). we can tell what god wants by figuring out what makes people happy. pg 535. AUSTIN cont'd - different universe with austin than with natural law authors. - positivists and natural law tradition --- any real differences? idea of pos morality, utilitarianism, goal of state as providing for common good/wheel. Not all that different than natural law authors would want to see austin interested in carving out an area of pure law and dexcribing it, not including the area of morality. - not far apart in describingg ideal world. - positivists - something worthwhile about talking about law, just as law. - austin says 4 things confsed with law but jurisprudene is focused on positive law. -Pos morality exists but outside of province of jurispurdnce. -Only pos law is inside. -Divine law is outside - never quite know what divine law is. -law of gravity is not a law since no command and no punishment. Hart refutes austin'ss writings in his book. customary law is a real law - does hae sanction and sovereign tacitcly commands what courts saay by lending powers of the executive and by not repealing it. (courts could be repealed by legis.) - austin start with propos that god is benevolent and god designs he happiness of al his sentient creatures. pg 535. to create happiness equally. divine law not part of pos law but could be brought into pos law by sovereign deciding to do so. -Pos law is commanded by sovereign to the subject. g 579. the existence of law is one thing..... You can judge the goodness or badness of the law but it doesn't affect its nature as law. 22 -bc the penalty can be enforced, the law is valid. pg 580. content of law is irrelevent to this conclusion. -rejects claim of conscience or moral sense (but not claims of utility.) to disobey law. - views CD as anarachy, hostile. anti-CD. Just too dangerous. - language like justice etc has no meaning except dislike and could indicated by agroan. Move into sovereign and nature of society: pg 585. Purely explanation of what law is. Not focus on what good law is. - in order to have a positive law, must have. every positive law is set by a sovereign person to a member or members of the independent political society wherein that person or body is sovereign or supreme. sovereign = determinatae and common superior (group of people, king, parliament). bulk of ind political society are in habit of obedience to this determinate superior. (doesn't say always obey.) -sovereign must not be in habit of obedience to some higher authority. - two parts: sovereign and ind political society. - ind politcal society has to be of considerable size (no defin of this) - if sovereign answers to someone higher up now and then, the bulk of the time the sovereign is still independent so no problem. ** the will of the sovereign is all we have. Nothing above that. Major difference between positivism and natural law: - natural law - law comes from outside human will. - pos - says not interested in anything like that. the will of the sovereign is all we have. - you cannot have total, absolute obedience to the sovereign. Must be in the habit of obedience. Int'l law is not pos law b/c no sovereign. different states follow own rules. More like pos morality. No real sovereign to enforce int'l law. can be looked down upon in the int'l community, shunned. ex: fishing rights. (ex: UN security council is possibly an int'l sovereign; limited sanctions) sovereign pg 619. sovereign is not in habit of obeying anyone else. *the sovereign is incapable of legal limitation. the sovereign's will is the law. "supreme power limited by pos law is a flat contradition in terms." In england, constitutional law and there are some things you cannot do or it will violate const. austin says okay but they don't bind the soverieng so it's pos morality. sovereign can take into account if he chooses to. Parliament/soveregn could repeal magna carte and take away any rights it chooses. In england, rights are what is left over. - sovereign is not subject to any legal restraints. Next time: Kelsen and then read 1 1-78 of book for next time. pg 627. austin discusses political liberty. Sovereign is incapable of legal limmitation then doesn't that mean tyranny? Isn't austin just tossing out pol liberty? austin's response is liberty is not in itself a particular good. Have to have laws that 23 restrain liberty. Liberties aren't worth anaything unless others are restrained (keep crime in check). govt is mixture of liberty and restraint. real question is how happy are people? Is mixture of lib and restraint conducive to happiness? - describint the way law is and more liberty etc gets us off the track. It doesn't really matter b/c lib and restraint are not the real issues. general happiness, common wheel are the real issues. - pg 640, last point. rejects the validity or usefulness of any type of sociall contract theory which explains law. (Locke was a social contract theory) - habit of obedience is akind of consent but different than what we saw with Locke. Locke's consent was a clear preference. - people not consenting b/c they like it or want govt to be organized this way. It is b/c of custom and prejudice. Prefer govt to anarchy. - consent not a promise. - with Locke, people enter society for protection of property. consent only until bounds of contract/original promise. - austin says pernicious that an original promise that limited us. Promise would limit sovereign to work towards the happiness of the people, principle of utility. It's a good thing sovereign not bound b/c they would hamper sovereign's response to contemporary problems. - govt is for the here and now and should be able to work out current problems. ######### KELSEN Legal order is a system of norms. Distinction between norms and statements about reality. Norm - stmt about what ought to occur. Not a stmt abbout reality. Not true or false. Not an "is" statement. is = can tell if true or false ought = valid or non-valid Experience tells us if stmt is true or false through experiment. - Ought stmt is valid norm only if it can be derived from a basic norm presupposed as valid. - another norm can tell us whether the norm is question is valid or non-valid. - hierarcy of norms. Norms can follow from other norms. work back to we find the core/basic norm, beyond which there is no other norm. - static syste of norms and dynamic systems of static - look at CONTENT of higher norm and deduce the lower norm via intellectual operation. ex: live in harmony be truthful love your neighbor -natural law theories seem to rely on deducing from some general principles. - law is a dynamic sytem of norms. - dynamic - can't trace back by content. basic norm establishes power to create other norms. grant of authority to some body to make norms/rules. No content in it. KELSEN -basic norm confers power or authority on some body of people to make other norms. - can't intellectually derive any norm - trace its origin back to see if it was made in conformance wiith basic form = see if norm is valid - if within grant of authority and can be traced back, it can be of any content whatsoever, no limitation on content that regulation can have. 24 pg 678 - human law is a dynamic system of norms. - nothing about content that makes it invalid or valid. - Kelsen distinguishes between norms of law or other norms (of morality) - distinguish from MLK and aquinas. - basic norms grants actors the authority to create laws according to their will. Laws created by an "act of will." - doesn't address whether moral norms overlap or influence legal norms. Not important to Kelsen. - where is basic norm from? vague. "Presupposed to be valid." - american govt = basic norm is constitution. whatever is in doc done by framers sets forth the basic framework. -dynamic character of constitution. art 1, sec 8 grants power to congress. - austin would say const is law: commands issued by sovereign group of obedience. - presupposed to be valid becuase people follow it. work up to the top and no norm above it. *It is ACCEPTED and acted in accordance with.* - Law isn't measured against moral or other principles. comes from basic norm. - pg 681 principle of legitimacy. Old constitution may say you can write a new constitution in this way = then it is valid. - revolution could make a new basic norm if rev succeeds. New basic norm adopted. - basically efficacously legal system for it to be valid. bulk of people must follow it. - Norms of legal system has to be efficacous but not valid due to this. valid b/c in conformity with basic norm. - supremacy clause: laws made pursuant to the const; treaties made under US authority shall be the supreme law of the land. - is statuate not in force for long time, does it lose its validity? One normal may lose its validity but whole general system still valid. - at the top, norm determined by some measure of reality. - don't need absolutely conformty to system for system tobe efficacous. Maybe something wrong if had total obedience - perfectly functioning machine then don't need govt or law. Law is set up against reality. - law requires a coercive force. - law is an organization of power up through the norms to the basic normm. Next class: CH 5, 6, and 7 H.L.A. HART - positive law pg 18. imperative mood. can use imper mood in ways that are not commands -- request, plea, or warning. - Hart makes linguistic distinctions. - what is law? - 3 recurrent issues: 1. Is austin right or wrong? How then do law and legal obligation differ from, and how are they related to, orders backed by threats? relationship between law and orders backed by threats? 2. what are the relations if any between law and morality? 3. what are rules? pg 14 def of law: shows similarity and differences by indicating the features which it shares in common with a wider family of things. 25 show what's similar and different to other things but won't work with law. there is no familiar wellunderstood general category of which law is a member. Hart's example: gunman saying hand over money or I will shoot. - austin uses the word "command" and it sounds like a specific stmt by somone to someone. command implies a military system. dig the trench. Individual order. - law is a general stmt as to the acts. do not commit theft. - Normally, commands given directly. dig the trench. - Law not like a command in individ sense and also law has an enduring, standing character, unlike a command. - austin's postion summarized bottom of pg 25. ch 3 and 4 areobjections to this view of looking at law. wrong and not helpful. - general orders backed by threats is wrong. IF austin is right, probably right when dealing with criminal law and tort law. Other law that serve functions don't fall into this category ex: wills. Private and public don't fall into threats back by force. laws faciliate reali realizing the wishes of individuals. ex: marriage laws. these are real laws. ex: contracts. Not a punishment or coercive threat with these types of laws. Public laws: judicial rules, legislative rules. If can't get a majority in senate, can't pass a statute. Not a threat backed force. don't fall naturally in austinian defin of law. this is how people must proceed in order to achieve goals. - Austin: all law is one thing, unfied, threats backed by force. two basic responses: austinians and Kelsenians argue: 1. nullity as a sanction. encourage parties to do it right the first time. Hart says logical fallacy. Losing is not really a punishment. 2. Instead of attemptong to show that these rules are a species of coercive orders, it denies them the status of law. It narrows the meaning of the word law. two forms of this argument: 1. less extreme. If you enter into contract in proper form and someone breaks contract, they will be ordered to pay damages or go to jail. If/then clause. good enough for a serious sanction through coercion if necessary. -allocation of power in the fronnt is not a separate rule. Part of long rule that ends with a sanction. - Kelsen says order goes to the official. Not sure what is gained. HART CONT'D first 4 chapters basically criticism of Austin's view of law as command backed by sanctions. Why is he using all this time to attack Austin? attacking whole positivist view b/c he wants to toss it out completely. He thinks that even though it has problems the underlying vview of aUstin is right. He wants a wholescale revision. fair ammount of what Hart says is related to austin and Kelsen but terminology is different. - Ch 3. certain laws don't fall into Austin structure of command backed by threasts. torts and crim law do follow it. do it or sanction. 26 - Problem with that is all sorts of laws that don't fall into pattern. Private law that impose obligations: contracts, wills, marriage. don't follow rules then don't have contract or will. different than punishment. Rules that don't encourage or discourage. If you want to do it, do it this way. - Rules that tell courts how to work. Fed diver juris matter involves $75K. Legal rule that doesn't punish. No command backed by threat. - Some way nullity of will is a sanction but not the same. Not really a penalty. Not telling you how to behave. - sanction comes at the end at application of the law. If clause. If you don't pay taxes then will go to jail. Kesen sayspart of a command backed by threat. Hart's response is that you can look at it this way but people don't experience it this way. People don't see them as ancillary to some criminal procedure. Hart says misguided attempt. Want to create some uniform idea and artificially forced other laws into this one category. Price is a distorted description of how these rules are really viewed. - Austin says legis is not bound bby laws. Hart disagrees. Sovereign in individual capacity as also false. - Rules incoherent or do not reflect reality. - Austin says custom becomes law. Once custom enforced by courts, it falls within law category. Tacitly adopted by sovereign/legislature. Hart disagrees. pg 46. Fictional in a modern state that legis nows about newest doctrine adopted by the courts. FIctional to say that legis has tacitly accepted it. - Hart does not make this point. In US legis system, hard to pass legislation. all the possible hang-ups in legis process. Maybe majorities for laws that don't get passed. filibuster -- Minority can stop the legis. How can this be said to be the tacit adopted/approval of legis? - CH 4. start out with Rex I, monarch. If what maes law are command... and habitually obeyed, people obey Rex I and then Rex I dies. Rex II comes into power. No habit of obedience in beginning with Rex II. Nothing in A'USTIN, Habit of obedience to Rex I tells us nothing about obed to Rex II. No right or proability that Rex II will be obeyed. Not explained by A'ustinian position. - In real life, in manygovtsystems, when Rex I dies, you know that Rex II has a right to rule. Probability that Rex II will be obeyed. - Not explainedby Austin position, some law made by Rex I continues on to be law under Rex II? - US fed courts, juris governed by judiciary act of 1789. Why do we obey it now? - Hobbes and Austin gave answer: it's not Rex II we are obeying. It's the sovereign today who wills the 1789 statute is still in effect. Sover is tacitly comanding it but sover today probably hasn't thought about this obscure issue. -Seems like a fiction. - Hart is saying austinian way is fundamentally incorrect. No habit of obedience that creates law. Obivious the reason that Rex II's word is law from day one and old statute continues, *there is a rule that is accepted that provides for this. pg 58. word of law continues until repealed by subsequent sover. * AUSTINian view doesn't allow for rules of that kind; only allows commands backed by threat. Rex II and not somem pretender has the right to do this. - Hart attacks austin's no limits on soverign. Hart says sovereigns legally limited in some ways. US has legal limits but still has a legal system. Austin says the real sovereign is the people; the sover behind the sove - ch 5 lays out his own structure. then sover is both sover and subjects. says people are sover and unlimited; society habitally obeys themselves. austin gets away from his initial idea of some sover ruling from the top to the people below. Hart criticizes this changed view. 27 - These arguments of command theory are not adequate for analysis of law. Hart not willing to give up the idea of a key but his own key. - Hart likes the positivists view of what we are trying to do is analyze what the idea of law means. - pg 80. Hart says need a fresh start. In law basically two kinds of rules: primary - crim law rules, tort law rules. Rules that arise from a vvalid marriage. activity such as adultery is illegal if in valid marriage. secondary - rules about how you make primaryrules. Can be more complicated than primary rules. - *combination of these two kinds of rules are key to understanding the legal system. the union of prim and sec rules is at the center of the legal system; but it does not explain everything. - gunman case pg 85. give me your $ or I'll shoot you. He was obliged to give it b/c gunman ordered him to. different from obligation to give it. Hart said no. No obligation to do this. obligation to report for military service. - obligation: depends on seriousness of social pressue behind teh rules is the primary factor determing whether they are thought of as giving rise to obligations. - external pt of view: observer from the outside. do people act in aparticular way or not? ex: trying to figure out what happens in game of cricket. - internal: from pt of view of someone inisde the system, member of society that functions by these rules. Different view of person who is playing cricket. Using rules as guide to conduct. THese are the rules we are playing be. If I am going to continue to play, I must use these rules. - Hartsays austinian position disregards internal view. everything is external. People subject to penalties then they have obligation. - pg 91. Imagine a society in which we only have primary rules. no legal system. Pre-legal state. Would have rules. Internal sense of rules. Rules against violence and killing, property rules/theft. High degree of compliance for society to work. small, closely knit. 3 problems: 1. uncertainty. No authority saying these are the rules. No structure. 2. static nature. slow process of growth. No way to introduce new rules. rule may change a bit over time but is slow. 3. Inefficiency - no central arbiter if dispute about rule or violation. Waste of time involved in the group's unorganized efforts to catch and punish offenders. Mob action, vendettas. Need a specialized agency to do this. ** interplay of primary and secondary rules. Key to understanding. 3 remedies for this: all in form of secondary rules 1. **rule of recognition. pg 95. secondary rule that tells you what a primary rule is. ex: whatever Rex I says is the law. could be simple or complicated. rule of recog could set up a hierarchy: parliment trumps judge-made rules. - similar to Kelsen's concept of basic norm. Remedy for uncertainty. Make certain what primmary rules are. 2. Remedy for static = rules of change. some connection to rule of recogition. empowers an indiv or body to introduce new primary rules for conduct and to eliminate old rules. 3. inefficiency. rules of adjudication. determines who will adjudicate and define the procedure to be follows. these are on a different level from the primary rules. Not included in rule of recog itself. specialized agency- courts. * above are all secondary rules. Move you from pre-legal into legal society. 28 - rule of recog unifies the primary rules in the procedural sense. Germ of idea of legal validity. also strong in Kelsen. - Hart grounded in how things really work. takesinto account the nature of society verus the abstract. More on the Rule of recognition: - pg 105-7. Unlimited power of sover. rule of recog can be ultimate and supreme but does not mean it has to be without limits. It guides all other rules. rule Rule of recog can have limits but can still be supreme. No other rule exists that overrides it. - can you ask whether rule of recog is valid? what makes validity in Hart's system? No, cannot ask it. Meaningless question b/c circular argument. validity - can't meausre the highest thing against anything higher. It is accepted as the rule of recogn. - Parallel with Kelsen. can't ask whether basic norm is valid. basic norm is at the top. It is presupposed/accepted as basic norm. - Looks like the habit of obedience. - pg 109. rule of recog is neither valid or invalid. It's a question of its acceptance. summarize the main pts: 1st 4 chapters: attack on austinian system - keyto law, command backed by threats/sanctions. Hart find this insufficient/not completely correct account. attempt a fresh start. Hart falls under positivist position. attempt to find a better positivist account of law. Hart's concepts come from Kelsen. - legal system: interplay of primary and second rules. Primary: rules to guide people in everyday life. Secondary: rules for making primary. - Not every question can be answered by this theory but most of them. - Hart tries to understand what rules are. Interested in the nature of rules.external (outside looking in) and internal (in the system and following the rules) point of view. Internalizationn of rule is important, more important than threat. Primary rules of conduct - rules could not be changed rapidly. when we move into true legal system, we get secondary rules. *Rules of recognition - tells you way of finding out what the other rules are, particularly primary rules. (similar to Kelsen's basic norm). Kelsen believes legal system is dynamic. Other important secondary rules: - rules of change - rules of adjudication (court system) - a lot of mystifications disappear. customs becoming law doesn't have to be explained by complicated way. can be explained instead by rule of recognition. - rule of recognition - presupposed, it's what people have accepted. Not intelligble question to ask if this rule is valid. validity only is a conept that exists within the system. circular. - validity= conforms to rule of recognition. 29 - pg 116. minimum conditions necessary for existence of legal system: 1. behavior in populus that generally obeys primary rules of system 2. officials accept secondary rules - by their behavior. -pathologies of legal system. border case where don't know what ruleof recog is. ex: revolution or colony escaping from govt. intermediate stages were not sure. Not the core case he is discussing of mature legal system. - core of certainty legal system purking along in ordinary way. - penumbra of doubt. >>>>>> New material: ch. 7 idea of command in austin is not consistent with idea of rule. command=- specific stmt backed by threat. -austinian theory cannot handle why we should obey Rex II, succession. - two devices for general standards of conduct: legislation and precedent. common law discusssion. Hart gives example on pg 125 father wants to communicate to son to take off hat in church. How is son supposed to know what to do? father says take off your hat, like a statute. Hart says problem with that - very often not too easy to tell what statute means. Supposed clarity of statute is greatly overvalued. Statutory interpretation - a lot of uncertainty. ex: criminal offense to coerce someone by use of force to do something or omit. what if someone puts car on the road to prevent you from going down the road. Is this by force? Passive resistance was considered force in Germany, NY. - law has an open texture: clear cases (no driving in park) but cases at the margin. Nature and use of language. Limit to the guidance that language can provide. pg 126. Limit inherent to the nature of language. pg 128-29: person making rules can't know everything and what may happen in the future. Indeterminacy of aim: if you haven't thought of all circumstances then don't have clear view of how they should be handled. when statute is unclear, judge is basically making new legislative decision. 1) relative ignorance of fact and 2) relative indeterminacy of aim. - formalism: in statutory interpreation or adjuciation was an attempt to deny the open texture, to deny doubt. It said no, it's all clear. Judges fixed on rigid classifications. In new situation, cling to old factors. ex: const argument whether electronic surveillance could violate 4th amendment? Judges held to rigid trespass line (formalism) instead of privacy rights against policy incursions purpose of the rule. rule-scepticism: 1930's no rules in case law or statutes. cannot mmake rule intelligbly due to open texture. Judges say they are following the rule but not really following the rule. - Hart says secondary rules are rules. Internal view: people believe they are following the rules. pg 147: uncertainty of rule of recognition. won't cover in class. ch 8 and ch 9 attempted answer to some theories of natural law that have been put up against positivism. - rejected austin and moved to another kind of positivst theory. pg 155-56. -answers natural law: 30 Maybe improvement on austin but still wrong b/c interplay of prim and sec rules is not essence of legal system. content of laws must conform to fundament requireents of justice and morality. - to this point, Hart has not discussed content of laws. - st. augustine and aquinas: if law is inconsistent with natural law (from eternal law) it is not law. - Hart thinks this view is inconceived. - *in last 2 chapters, Hart combats argument: it is NECESSARY for a legal system to have rules of a particular just or moral content. - Ch 8: distinguish concept of justice from broader concept of morality. ex: immoral - gross cruelty of a child. Might not say that's an instance of injustice Justice and broader 2 related aspects of justice: a fairness, a distribution of burdens and benefits or 2) with respect to compensation. ex: low level ENron prosecuted but not higher level exec. Could say unjust. ex: person injured but judge dismissed the case. Unjust. pg 160. - treating like cases alike and different cases differently. ex: benefits for low income people. - uncertainty b/c we needto decide what the relevant characterisitcs are. - maybe could argue an unjust law is actually better for the common good. (similar to Rawls) 158-165. - compensation part: general idea that there's an equlibrium among people considered to be equally situated so if injury to one person is not redressed, it's a kind of failure of distribution, an injustice. - justice is narrower and more focused than morality. Justice is a particular kind of morality. - not always sure of correct moral rule. More uncertainty: Different ideas of morality in social groups; also individual morality. pg 172. simiarlties between law and morality: conceived as binding independently of the consent of the individual bound and are supported by serious social pressure for conformity.... pg 173 Four differences between law and morality: 1. importance. Moral rules more important than legal. restrict strong passions; significant social pressure. ex: some laws important to obey but are trivial. Drive on right side of road. 2. Immunity from deliberate change. pg 175. Moral rules are like the primary rules that exist before a real legal system. can't change them by a willful decision. change slowly and involuntary way. traditions share this characteristic. 3. voluntary character of moral offenses. In law, the intention of someone to act may/may not be important but not the case for moral rules. -(one could argue negligence is a moral failure.) 4. form of moral pressure. social pressure with morals but an internal pressure where individual can be appealed to. by saying, it is wrong to break your promise, would appeal to individual remose and guilt. - Hart doesn't talk about content of morallity; formal description of morality. CH 9 - takes us back to questions of Civil Disobedience and east german border guards. - pg 185. law system must not exhibit conformity with morals or justice. - classical ideas of natural law pg 186: certain principles of human conduct.....if it is to be valid. - natural laws (celestial bodies) which human laws must conform. two kinds of law: pg 187 1. descriptive - come from observation and reasoning 2. prescription/demand - human laws are demands that people do things. 31 greek philosophy: "all things tend toward certain end." pg 192. there is a kind of natural law that has a minimum content that arises from nature of human beings. arises from: vulnerability, approximate equality, (rules against violence and taking of life) mutual forebea mutual forebearance. altruism makes these laws possible. 4. limited resources - some kind of insitution like property and dynamic rule for contracts. 5. need sanctions for those who don't follow altruistic bent. - these rules must be there for legal system. * pg 200. in order to have legal system....always done so. this is very minimal, can be a slave class or oppressed groups. It doesn't get you very far. pg 202. when have real legal system, may be easier to oppress these groups. * Because this risk has materialized that people will be oppressed....needs very careful scrutiny." The minimum requirements are consistent with all sorts of terrible actions so claim that law must conform to morals needs careful scrutiny. pg. 202-212 6 + ways which he distinguishes: 1. legal system must generally rest on moral obligation to exist. cannot exist on person over person. - People could acquiesce without believing it's moral. Not necessary between law and morality. 2. Morality does have influence on law but doesnn't show it must in every case to have a legal system. 3. By interpreting statues, judges insert moral views. - they may put in moral views but not necessary in a legal system. Doesn't show legal system must be moral. ex: nazi legal system. 4. pg 207 Hart answers Fuller. Intermorality of law. End of ch 9: follows the rule of recognition, b/c itis morally reprehensible, it is not law. Hart rejects. Is arule that has into being according to rule of recognition but is immoral, is it law? MLK say no, not law. Positivists say yes, it's law. Hart saying it is law but don't necessary have to obey it; that's a separate decision. Important to call it law and then go on to decide whether to obey it. ch 9. law and morals in Hart all law seems to protect human life, needd to live in peace together, institutionn of property, etc. all systems must have it so similar to natural law. Hart willing to accept common core of legal norms in any system. Law must have acertain moral content goes beyond that and Hart refutes. 1. must have sense of moral obligation. Hart rejects. Not necessary that obedience be founded on belief that system is normal. pg 202. all sorts of different reasons why people obeys laws. Not NECEssary that people obey law b/c they believe it is moral. 2. influence of morality on law or when interpret a statute. moral choices creep in and inform decision of judge. 32 Hart says you could call it moral choice of society but you might not like it much. we might not consider it moral. ex: racial supremacy/Nazis. compatible with great iniquity. 3. *questionn of whether a legal rule that we thinkk is immoral but enacted through rule of recognition, etc, do we say its law or not law? Natural law and positivists part company. aquinas, MLK say it's not law even though it fulfills Fullers requirements. Hart pg 207 this is law if enacted in accordance with rule of recognition. It does NOT follow from Hart's rule that it should be obeyed. Both Hart and NL say if iniquitious, obligated not to obey it but do we callit law? Is this just a verbal quibble? Hart says more than a verbal quibble. pg 209. Confusion to take the NL position. Hart's positivists position, you can make clearer choices. 1. if you take NL positionn, something immoral is not law. If something is called law then tendency might be to say it is okay. Less likely to reduct in examination of the law. 2. clarity; clearer understanding iff we call it law and then proceed to consideration of when it should be obeyed. to call it not law is too blunt an instrument. questions raised by moral iniquity of law: 1. should you obey it? 2. if you disobey it, should you accept penalty? 3. should people later on be punished for enforcing it? ( East German border guards.) If you say it is not law, must answer the same way: no, no, yes. texts: MLK followed socrates. ANTIGONE: Major sentence: to not have burial would prevent Polyneices from life ever after. Is Creon's order law? - He is the top, king and he should be obeyed. - decree sPecific to Polyneices but more general in that it warns others that fight the city will have the same fate. - divine hand in putting the King there. Someone linked to the gods, zeus. - No. Did not get approval by any assembly. Haemon raises question that "what kind of state is a oneman state." - Fuller would say not general. - ex post facto provision. creon makes order after it happened. - Antigone attempts to bury the body by covering it with earth, knowing it was prohibited by Creon. - antigone argues a special obligation to her brother; will of gods that people are buried. Divine obligation to do this. Laws of god above the law of man. (simmilar to aquinas). basic laws of god in heaven which are stronger than human law. She hints at unwritten stronger than written since they are so strong. - Similar to MLK, Thoreau - she must violate the human law. Push from her idea of conscience. Human law is not law. don't know where laws of heaven come from. Creon has a strong answer: what would Thebes think if he didn't carry out punishment? would be anarachy. Need a respected govt or will be terrible chaos. Shouldn't give up protecting peoples lives. creon said she is a traitor and if he doesn't follow through, he will also be a traitor. Twist the law for one's own pleasure is sinful. states are devoured by disobedience. People are saved by obedience. Creon's tragic flaw is self-will, pride; he won't bend/be flexible. 33 teiresias suggests a revenge from the gods for death of Haemon and antigone. Suggests divine law prevails above keeping the state together. creon flawed by not being able to see that. Judgment of people is against Creon, maybe truer judgment of what gods really want. aquinian idea - what gods want could come down through the people so creon should pay attention. APOLOGY socrates says people will be prejudiced against him b/c of the comedy play. passage 12ad and 30a. hypothetical civil disobedience. if he was acquitted and continued philosophizing in the streets, he would be executed. He disobeys this judgment. Unexamined life is not worth living. Soul is more important than body. Voice speaking to socrates; tells him not to do things. conscience; divine voice. God has told me that I must continue to philosophize. Friend of Socrates went to oracle in Delphi and oracle said no man wiser than Socrates. He tried to prove the Oracle wrong. He questions people and finds that people are not very wise. He feels it is his duty to let these people know they are not really wise. socrates feels this is a religious obligation. He encourages people to use knowledge and then this leads to virtue and cultivating their soul. Improvement of the souls of lots of people. Comparison between trial of CHrist and trial of SOcrates. - example of CD: he was supposed to participate in sentencing people to death. Ordered to get someone to kill. -- Most like Thoreau. He just went home. Not intended to change people's minds or society. Just not going to participate in this. He listens to his conscience. - after convicted, what penalty? Soc answers: full maintainence scholarship for me. CD: refusal to ask for lesser sentence. CRITO Crito makes last attempt to help socrates escape. CD: Soc won't escape; not engage in deception or hide anything. (Antigone: do it day, want people to know.) Siilar to argument by Creon. Importance of abiding by laws of the state. Laws of athens; owe a lot to state since it gave you life (marriage laws, education, etc). Idea of social compact. state is a kind of parent and owe a parental obligation. Stayed in athens and agreed to abide by the laws. Intentional agreement when you were an adult pleasres of the state. - socrates accepts this argument. Lockean. Inconsistency: apology - follow will of god by continuing to philosophize. crito - accept punishment. Views of Rawls and MLK - violate the law but then accept the punishment. rawls gives us one justification for this. Remain virtuous. explain inconsistency: - Only disobey laws where gods require you to do so. - Gods did not order him to leave prison. rawls - break law but accept punishment. based on, state almost completely just and violation of law is not due to divine command but want to persuade majority that they are out of sync with basic suppositions with the state. basic allegiance but not revolutionary. MLK- see socrates willing to die for examining his life, maybe people will consider how important this is. convince by moral force of suffering, i.e. being put in jail.