Week 4: The Rule of Law, Hart and Dworkin

What are secondary rules in Hart?

Rules needed for a more civilised society Links back to pedigree thesis 1. rules of change 2. adjudication 3. recognition (impose duties)

Who was Hart?

- a 20thc philosopher in school of legal positivism - legal positivism is a philosophy of law that emphasises conventional nature of law as law being socially constructed. Law is synonymous with positive norms (norms made by legislation of considered as common or case law)

Who was Dworkin what was his philosophy?

- another 20thc philosopher -said that law is integrated with morality - He's against legal positivism

How can a body (area of law such as property) acquire principle of legality?

- attribution: new competence created authorising a government body to act - delegation: when pre existing competence is handed over to another body that exercises this power under its own name and responsibility Authority handing over competence= principal Delegate is the body to which the power is handed to

What is on the first floor of the rechtstaat?

- democratic style - 19thc - political rights and early version of parliamentary system - idea that everyone is accountable to the law: rules have to be clear and accessible separation of powers participation in decision making fundamental human rights avoidance of arbitrariness

Which parts of legal positivism does Dworkin contest?

- idea that there is no separation between morality and law - believes law ought to take rights seriously - argues that judges must seek soundest theory of law with which to fill in hard cases, not down to judge's own view of justice and fairness Judges have to constructively interpret common law in order to make one right decision

What is on the ground floor of the rechtstaat?

- liberal style - major 18thc ideas and institutions of classical legality such as the Trias Politicas

What are primary rules in Hart?

- the basic needs for a primitive society 1. free use of violence, theft and deception we as humans must suppress these to have a civilised society

What is the principle of good governance? Which floor of the rechtstaat is it on?

- top floor, 20thc - combines admin action with citizen freedom - exec function: make gov both strong and accountable - legislative function: desirability of a wide and fair consultation of social organisations and concerned interests before legislation enacted - judicial power: large freedom in interpretation of laws

What is on the top floor of the rechtstaat?

-20thc and development of social stage of the rule of law New social aspirations in 20thc: - liberal idea that state should be present as little as possible - social idea that state should be present to guarantee certain social justice in addition to liberal values- new guidelines for judicial review: social rights and good governance -social rights include employment, subsistence, education and housing

What is the Rule of Recognition in Hart?

-Determines rules by which validity of legal system is recognised - duty imposing (only one that is out of three, rule of change, adjudication) - duties of judges laid down by rule of recognition

Who is Hercules?

-Hercules is mythical judge who has superhuman powers and skill - Hercules has answers to gaps in legal system, image of law as a gapless system - he needs to be wide ranging and imaginative

What is the judicial function in Hart?

-accepts that laws are rules but judges have wide discretion at arriving at decisions - idea of hard cases and how judges fill in gaps is hotly contested but in hard cases in Hart judges make laws as in the end it comes down to own personal view of fairness and justice

What does administrative law cover?

-all areas of law where public administration is active. -it provides public body with legal instruments to govern. -it is the law against pub administration as it makes legal remedies available to subjects and companies in their battle with the public authorities

What does the democratic rule of law entail?

-individual freedom of subjects - restrictions placed on individual subjects - legal restrictions can only be implemented by means of democratic process, result of which is an act

What is a natural lawyer?

-opposed to legal positivism - believes law and morality intertwined - Dworkin is one

What are the two contexts for rules of change in Hart?

1. facilitate leg. or judicial changes to both primary and secondary rules 2. lower order secondary rules confer power on ordinary individuals to change their legal position (wills, contracts)

What are the rules for minimum content of natural law?

1. human vulnerability- all susceptible to physical attacks 2. approximate equality 3. limited altruism 4. limited resources 5. limited understanding and strength of will

What does contemporary legal positivism include as claims about nature of law?

1. separability thesis- denies existence of necessary moral constraints on the contents of law 2. the pedigree thesis- articulates necessary and sufficient conditions for legal validity in respect of how or by whom law is promulgated 3. discretion thesis- asserts that judges decide hard cases by making new laws

What kind of phenomenon is law for Hart?

A social phenomenon- idea that law can be referenced and explained by reference to actual social practices of a community

What is the nulla poena principle?

In criminal law demands that previous statute (written law passed by leg. body) declares a certain conduct as criminal- citizens can plan life in accordance with known dictates of criminal law. Basically, one cannot be punished for doing something which is not prohibited by law

What does Hart says about rules satisfying the rule of recognition?

That they are only valid rules if they satisfy rule of recognition

What big question does Hart ask?

To what extent is the law moral? Look into Hart Fuller debate

What are the separation of powers?

Trias politica executive- powers of this body laid down in the law but actions restricted by same law legislative power- assigned to body that creates new laws, all subjects are bound judiciary- independent from exec and leg, powers are based on the law

What does minimum content of natural law mean for society?

We need rules to protect people and property

What are non rules standards?

When there is a hard case and a judge draws on moral and political standards- principles and policies to reach decision - always a right answer, judge's job is to find it - Dworkin argues that since judges are unelected officials they do not make law, judicial role is democratic and prospective

What are horizontally segmented norms?

a combination of rules originating from different administrative laws and rules

What does the rechtstaat entail?

a family of three concepts: constitutional state, the rule of law and legality

What are vertically segmented norms?

administrative law- vertical element determined by hierarchal structure of the applicable rules: the Act at the top and the decision. at the bottom

What is vote of no confidence?

an unwritten rule where if there is a minister in the cabinet the others don't have confidence in anymore a 2 thirds vote from parliament can send them away

What did the 1848 liberal constitution entail?

idea was to produce codifications of law in civil law, criminal law and admin law political rights vs liberal rights Political rights enable us to participate in system and change it such as right to vote and demonstrate Liberal rights celebrate individual freedoms, protect conscience of individual, cater to individual need for expression

What is the rechtstaat?

like a house built for the Dutch to live in, an old one on an Amsterdam canal with a foundation and several stories which have been added to the main building over the course of centuries.

What does legality do?

makes state follow law otherwise there will be consequences- state can't take our freedom away, only if there is legal basis (competence) principle of legality says that legal restrictions on individual freedoms can only be implemented if they are created by means of a democratic process- result is an act

What is the judicial review?

must be neutral third party to adjudicate conflict between subjects but also subjects and the state

What are obligation rules in Hart and what can they be divided into?

obligation rules impose duties and sanctions can be divided into moral and legal rules. legal rules can be divided into primary and secondary rules

What does balance of powers mean?

powers have autonomy (trias politicas) and are separate but checks and balances means that the separate branches have power to prevent actions by other branches and are induced to share power

What is the minimum content of natural law?

premise that all humans desire to live or survive, every legal system has universally accepted principles which form minimum content of natural law, common to law and morality

What do principles and policies describe?

principles describe rights, policies goals

What does the General Administrative Law Act of 1994 say?

provides rules on procedural admin law, but also on process of decision making

What are social rules in Hart?

question of how members of a society perceive the rule in question and what's their attitude towards it?

What is a mandate?

s civil servant authorised by a government body to carry out powers under the name and responsibility of that government body

What is the rule of law?

set of principles ensuring that society is governed by rule of law rather than men

What id codification?

the process of collecting and restating law of jurisdiction in certain areas usually by subject, forming a legal code

Does principal lose authority once competence is handed over?

yes, according to definition of delegation, competences can only be delegated to another administrative body