Jurisprudence terms
Rule-scepticism
In its most general form, a rule sceptic questions our tendency to assume the usual assignment of meaning to propositions as non-arbitriary and somehow meaningful itself. (?)
Legal doctrine
A rule or principle or the law established through the repeated application of legal precedents.
Internal morality of law
Contemporary NL The internal morality of law Draw distinction of internal and external morality. External injected in law by gov or judges e.g. catholic church view that gambling wrong, so law enforces. --Kind of morality inherent in law, can't be divorced from it - legal mech working, it will be there hence the 8. Eight principles of legality - i.e. conditions of the rule of law (Fuller: The Morality of Law): 1. There must be general rules 2. Promulgation 3. No abuse of retroactive rules 4. Clarity of laws 5. No contradictions 6. Laws cannot require the impossible 7. Constancy of laws through time 8. Congruence between official action and declared rule Hard to argue against principles - little disagreement. Hart yes but that it has nothing to do with morality, just requirements of efficiency (Importantly, this aspect of Fuller's theory is pretty much beyond dispute. There is almost universal agreement that (dramatically) falling to meet these conditions means failing to create law that could guide action.) The internal morality of law is Natural Law - manifested not in the content of legal rules but in the procedures by which the rules are constructed and administered. Importantly, this aspect of Fuller's theory (this set of principles) is pretty much beyond dispute. There is almost universal agreement that (dramatically) faling to meet any of these conditions means failing to create law that can guide action. It is more controversial whether the principles indeed represent an internal morality of law. Remember what the key point is for Fuller here. By meeting these conditions, the law establishes a model of normative guidance that has distinctive moral significance.
Managerial Control
Contemporary Naturalism: Fuller and Finnis Fuller fascinated with contrast of law and managerial control The moral point becomes even clearer if we look at the contrast Fuller draws betwen law and managerial control. Rival models of guiding action. Law operates differently - law does not set us objectives (what we need to achieve) Law assumes autonomy (you choose - legal norms determine side constraints). Anti communist - Russia turn gave into managerial control - assume collective aim.
Common good
Contemporary Naturalism: Fuller and Finnis Serving the 'common good'? '[Law is] a certain ordinance of reason for the common good, made by him who has care of the community, and promulgated.' (Aquinas, ST I-II, Q. 90) Maintaing stable/peaceful social order, making our lives more reasonable, serving the common good. (communities and the common good) Consideration for the common good can be realised ONLY by way of cooperation with others --We need to pay special attention to the eighth principle: 'consideration for the common good' --Some goods can be realized only by way cooperation with others.
Theoretical disagreement
Dworkin's theory in Law's Empire Developing the idea of concurrent practices Possibility of theoretical disagreement. Disagree on the ground of law on what a particular proposition of law is true or false Dworkin's theory in Law's Empire Distinction of conventional and concurrent practices Concurrent - agree on the main rules - not eat meat, disagreement on the scope/limits of the practice. Certain practices acceptable/some not. Specific dworkin in concurrent practices - theoretical disagreement - disagreement on the grounds of law on what makes a particular proposition of law true or false Law is a social practice However, the social practice is compatible with varying and conflicting interpretations of what the practice implies There is agreement on the paradigmatic elements of the practice but theoretical disagreement manifests itself at the margins (and in hard cases in particular).
Modern Naturalism
Four leading figures: Hugo Grotius (1583-1645) Thomas Hobbes (1588-1679 Samuel Pufendorf (1632-1694) John Locke (1632-1704) Idea develops over 50 years --In early modernity (and mainly in the 17th century), the classical doctrine looked philosophically more vulnerable. More specifically: vulnerable to ethical scepticism Modern Naturalism came to rely on two natural inclinations: self-preservation and sociability Rooting principles of natural law in human nature. God and Modern Naturalism If all laws require a lawmaker, so does Natural Law itself. Theory fatal development on God, inject principles with objective force. Grotius NOT see this coming - do without god but oh well. Trouble Political/moral philosophy - profound secularisation - this approach does NOT work anymore Modern Naturalism came under critical attack in the 18th century. Two famous critical attacks: Leibniz, Hume The over-reliance on the idea of God became more and more problematic. From the late 18th century, science, political theory and legal scholarship underwent a profound secularisation. The over-reliance on the idea of God fatally undermined the intellectual credibility of Modern Naturalism. Laying the ground for Legal Positivism Modern Naturalism became a kind of 'incubator' for the development of many ideas familiar from Legal Positivism. The imperative theory was developed by Hobbes. The idea that there is no law without lawmaker is a form of the Sources Thesis. The idea that the reasonableness of a standard is not enough to make it a law underlies the Separability Thesis. If we drop God from Modern Naturalism, we are left with a straightforward positivist doctrine. That is, we arrive at Bentham. Naturalism today Modern Naturalism failed but Naturalism has remarkable staying power. People not defend modern Natural law.
Pre-emption Thesis
In Raz The way authoritative directives work How authoritative directives effect out conduct - capable of normative guidance. Explain by two thesis. 2. Pre-emption Thesis Pre-empt reasons. No longer required balance reasons yourself, do what authority says. Replace some of them. e.g. Adujudication of 2 - argue points, judge come in and make decision. Decision makes irrelevant arguements..... 'The fact that an authority requires performance of an action is a reason (...) which is not to be added to all other relevant reasons (...), but should replace some of them.' (Raz: 'Authority, Law and Morality')
Dependence Thesis
Joseph Raz and the Authority of law The way authoritative directives work How authoritative directives effect out conduct - capable of normative guidance. Explain by two thesis. 1. Dependence Thesis Directives effect how be deliberate our actions. D effect it. The authoritative d do not bring in new reasons, butreasons we already have. Authority not give new reasons but help us to make a decision. 'All authoritative directives should be based, among other factors, on reasons which apply to the subjects of those directives (...). Such reasons I shall call dependent reasons.' 2. Pre-emption thesis
Instrumentalism (about the law)
Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
Pragmatism
Legal pragmatism is a theory critical of more traditional pictures of law and, more specifically, judicial decision-making. The classical view of law offers a case-based theory of law that emphasizes the universal and foundational quality of specifically legal facts, the meticulous analysis of precedent and argument from analogy. Legal pragmatism, on the other hand, emphasizes the need to include a more diverse set of data and claims that law is best thought of as a practice that is rooted in the specific context at hand, without secure foundations, instrumental, and always attached to a perspective. A pragmatic stance towards jurisprudence offers many philosophical challenges to more traditional descriptions of the legal domain
Procedural Natural Law
Lon Fuller (1902-1978) A contract lawyer, academic Harvard. This theory going out on its own - took time to make this, procedural natural law. The long road to an original take on the Natural Law Doctrine... It took some time for Fuller to come out as an open advocate of Naturalism. Procedural Natural Law Element of morality here - idea attractive. Fuller idea what law does - law governs action, can't done without respect principles. If following principles, the law becomes distinctive. Have law give that way = consequence. Know what you can expect, plan your life around it. Lay ground for freedom as independence. This enterprise cannot be successful without respecting the principles of legality. --Those principles make the law qualitatively different from rule by terror, managerial control and psychiatric manipulation. --The law respecting those principles embodies the moral value of 'freedom as independence' (Simmonds). --The internal morality of law is Natural Law - manifested not in the content of legal rules but in the procedures by which the rules are constructed and administered.
Moral objectivism
Moral objectivism is the position that moral truths exist independantly from opinion. Naturalism today Modern Naturalism failed but Naturalism has remarkable staying power. People not defend modern Natural law. The core idea is still attractive to many. Moral objectivism has influential advocates in philosophy. Bentham was actually a moral objectivist. Waldron declared moral objectivity an irrelevance to legal theory.
Social rules (Hart)
Social rules and obligations A few characteristics of social rules: Rules are general Participants of the practice experience social pressure to obey the rules. Divergence from a rule is regarded by the community as a legitimate reason for criticism Participants develop a sense of obligation to obey the rules. ('If you are a true participant, you will respect our rules.') The rules of recognition are social rules - how are ROR hold normative force this is the answer - they are social rules - they exist as social conventions, normative force via mutual acceptance Law and social rules Do all legal rules operate like social rules? No - Many legal rules are not supported by serious social pressure. Most legal rules do not operate like conventions. What is the exact relationship between social rules and legal rules? Not all legal rules are social rules but the rules of recognition that ultimately make them valid (that confer normative force on them) are necessarily social rules. The rules of recognition represent social conventions
Legal principles
a principle underlying the formulation of jurisprudence
Constructive interpretation
Mostly with Ronald Dworkin: Law as integrity A constructive interpretation is carried out to establish the meaning of a certain practice, without indicating (or at least not indicating solely) the intentions attached to the practice by its author. The practice in itself is central, and the interpreter has to take into account the history and shape of the practice to see which interpretations of the practice are possible (Dworkin 1986, p. 52). Three stages of interpretation can be distinguished (Dworkin 1986, p. 65-69). In the pre-interpretative stage, the rules and standards that form part of the practice to be interpreted have to be listed. In the subsequent interpretative stage, the interpreter has to settle on a general justification for the main elements of the practice that has been identified. The post-interpretative stage then offers scope for critical reflection: how does the rule really have to be interpreted so as to better serve the justification found in the previous stage? These stages can, however, get mixed up, with actual interpretation being much less deliberate and structured than this analytical structure suggests (Dworkin 1986, p. 66).
Empiricism
1. philosophy the doctrine that all knowledge of matters of fact derives from experience and that the mind is not furnished with a set of concepts in advance of experience 2. the use of empirical methods
Normative Legal Positivism
An alternative way of setting up a legal positivist theory ---We may admit that not all law (in every legal system) is source-based: legal systems may or may not limit valid law to source-based law. ---However, legal systems where all law is source-based are better off. Not that all law is source-based but we should strive to make all law source-based. This theory would revolve around a normative (as opposed to a descriptive) thesis (Normative Legal Positivism). This turns Legal Positivism into a political doctrine. ---Legal Positivism respondes to certain political needs of modern societies. Positivism comes to revolve around the idea that, by tying the law to recognised sources, ---we can make a beneficial impact on legal reasoning: We can minimise the role of moral considerations in legal (and especially judicial) reasoning. What is the problem with involving moral considerations in legal reasoning? --It does not afford due respect to the authority of the democratically elected legislation (by second-guessing the law it makes) --Moral considerations make legal reasoning unpredictable and needlessly contentious --Judges are not particularly good moral reasoners
Source-based law
An alternative way of setting up a legal positivist theory We may admit that not all law (in every legal system) is source-based: legal systems may or may not limit valid law to source-based law. (?)
Sources Thesis
Bentham's positivism Sources Thesis: In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits. He defends the sources thesis on moral grounds > Normative positivism His aim was to minimise judicial power> legislative positivism For Hart, the core of Legal Positivism is the idea that law and morality are separable. (not true for every psotivist) For others positivists, the so-called Sources Thesis may be more important. Raz The Sources Thesis 'All law is source-based.' 'The law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument.' (Raz: 'Authority, Law and Morality') Not engage any evaluative analysis, mobilize moral principles just need fact Statute valid via parliament royal assent and propagated All matter of fact. Parliament work together, debate and vote, majority. Social fact in sense, not just 100 doing something, persons particular social relationship like being an elected MP. Sources - role an a particular text, seen and printed - want it to below. The truth of the Sources Thesis implies the truth of the Separability Thesis
Pure Theory of Law
Book by Kelsen The nature of legal theory Legal science is dealing with norms The content of norms is contingent - doctrinal legal scholarship As a general theory of law the Pure Theory of Law establishes the fundamental concepts by which every positive law can be conceived and described. Legal theory is dealing not with the content of norms, but with the logical analysis of individual norms and the structural relationship between The basic norm and the legal point of view: The Pure Theory aims to raise to the level of consciousness what all jurists are doing when they reject natural law as the basis of the validity of positive law, but nevertheless understand the positive law as a valid system, that is, as norm, and not merely as factual contingencies of motivation." Kelsen's Pure Theory It does not refer to moral principles It does not reduce norms to empirical facts
Classical Naturalism
Classical Naturalism supplemented the point about objective principles with a claim about good life: humans must conduct their life and organize their society according to reason. Lon Fuller (in legal theory) Go back a bit - Rejecting Modern Naturalism, and finding a way to return to Classical Naturalism (Neo-classical Naturalism). - back to point healthy (communties and common good - Notice that it is at this point that the theory explicitly aligns itself with the Classical Naturalism of Aquinas. The idea of complete communities is taken directly from Aquinas.)
Analytical Jurisprudence
HLA Hart's conventionalist account of law Analytical Jurisprudence and Legal Positivism --Hart is one of the pivotal figures of Legal Positivism. --Hart saw himself as an heir to Analytical Jurisprudence (that started with Bentham) Hart was dedicated to Analytical Jurisprudence that offers 'a purely analytical study of legal concepts', and that is designed to dispel misconceptions about the character of law. He believed that Analytical Jurisprudence must be a form of Legal Positivism.
Basic norm
Hans Kelsen - law as a hierarchy of norms 3. Kelsen's normativism The normativity of law derives from a hypothetical Basic Norm The Unity of the Legal System Something that makes rules - unify legal system. Basic norm defines which legal rules belong to the legal system The Basic Norm has two functions: it accounts for the unity of the legal system it accounts for the normativity of law That a norm belongs to a certain system follows simply from the fact that the validity of the norm can be traced back to the same Basic Norm Illustrating basic norm - rely on French revolution "The significance of the basic norm emerges most clearly when the legal order undergoes not legal change, but revolution or substitution." Kelsen. Acts of Union count but can be contested. Revolutionary change: eg the monarchical Basic Norm is substituted by a republican Basic Norm If the revolution is successful: a new Basic Norm is presupposed If not, the acts of the new government are criminal, not constitutional K - general the idea The basic norm is not a positive but a presupposed norm. You need something that gives validity to these laws, you cannot go further and further again. Some may reject basic norm, but K can't prove basic norm to an anarchist. A - considers the system a coercive order. Aka make legal claims = presuppose the basic norm of your legal system is valid
Rule of recognition
Hart The rules of recognition (most important) In the Hartian account, rules of recognition play a pivotal role. This is by far his most important theoretical construct: the key to a number of his legal theoretical claims The rules of recognition connect his conventionalism about normativity with his account of legal systems as unions of two types of rules. The validity of law Legal validity is one of the key technical terms associated with legal normativity. In order to have normative force at a particular time and place, a rule must have validity. How do you figure out what counts as valid law? Open westlaw, if rule not valid then not impose obligation The Hartian answer revolves around the rules of recognition. Validity and the rules of recognition 'We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.' (The Concept of Law ) Rules of recognition distinguish between Legal and non-legal rules Rules of different legal systems Tend towards a concept = the sources of law ROR connected to what you know of own LS - all law is source based. ROR define sources, recognise law by source Rules of recognition as the ultimate source of validity Tricky what H claims - ROR set criteria of validity. Holly make rule for scots What makes the rule of recognition capable of setting the criteria of validity - without needing further 'validation'? The rules of recognition are social rules - how are ROR hold normative force this is the answer - they are social rules - they exist as social conventions, normative force via mutual acceptance e.g. paris meter - measure standard, created a meter system. If you want to figure 1m long, can always use this standard. Paris will give identify if 1m long, validate it. 1 thing can't measure is the paris meter itself - we accept as a meter. ROR operate the same way, validity based on ROR They have normative force because certain people actually accept and practice them.
Descriptive (or Methodological) Legal Positivism
Hart argues It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. --Argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law.
Conventionalism
Hart's conventionalism - rejects all 3 theories above. Positivist so tendency to reject NL. Hart puts issue of normativity at centre of theory Conventionalism What makes playing a game a normative practice? Because it GUIDES behaviour If goal line there, x goes that direction. Y go the other way to that goal line if with the ball. It establishes obligations. If catch ball and not keeper, then penalty. Sanction applied when rules are violated Why follow rules? Because we want to play. Normativity of game is rooted in the fact that players accept the rules (why rules are social) The rules of the game operate as SOCIAL conventions Do something that others expect, and accept, be part of social group Not based on morality, but custom - the normativity is a social normativity Law is conventional in character - sociological credibility Conventionalism - the game analogy ----Creates normativity - but accepting rules in light of other people to make a social practice. Moral merit is irrelevant - all rules is acceptance and practice built on it. What makes playing a game a normative practice? The normativity of a game like football is rooted in the fact that players mutually accept the rules. The rules of the game are maintained as a social convention. That is, the rules of the game are social rules Their normativity is social normativity It does not depend on the moral merit of the rules - only on the fact that they are accepted and practiced. The rules of recognition connect his conventionalism about normativity with his account of legal systems as unions of two types of rules. -- Dworkin 1972 In time, Dworkin turned more explicitly against Hart's conventionalism Developing theories of law by way of constructive interpretation - interpretive theories of law Not just theories of an interpretive practice: the theories are interpretive themselves Three conceptions of law: 1. Conventionalism 2. Pragmatism 3. Law as integrity ( his own and he thinks better than above) Conventionalism Judges must respect established conventions (positive claim). There is no law - no right flowing from past decisions - apart from these conventions (negative claim). Where there is no law, 'extra-legal considerations' will become decisive. Post political acts as convention criteria. Limit domain of law and when judges/official face issue have to apply force in limits of these conventions What is the point of respecting legal rules? Fair warning, reducing surprise (predictability) (pred, certainty) Once some set of rules has been established, it is more important that these rules are regarded as settled than that they are the best rules that could have been found. Which is the conception we can subscribe to? Conventionalism is 'backward-looking' Conventionalism may lead to rule fetishism It leaves no room for judges to rectify mistakes in the past political decisions Recall Dworkin's account of Conventionalism in Law's Empire Judges must respect established conventions (positive claim), and there is no law apart from these conventions (negative claim). The point of respecting conventions is fair warning, reducing surprise, achieving coordination Once some set of rules has been established, it is more important that these rules are regarded as settled than that they are the best rules. -- Raz Stays true to Hart's conventionalism
Psychologism
Psychologism is a philosophical position, according to which psychology plays a central role in grounding or explaining some other, non-psychological type of fact or law.
Wealth maximization
In regards to Posner and the Economic Analysis of Law In order to understand the functions of EAL attributes to law, we need to look at what the theory says about the cost of human activities Opportunity cost --Cost is incurred only when someone is denied the use of a resource. --Economics is about resource use, money is just a claim on resources. Private cost ↔ Social cost 'A social cost diminishes the wealth of society; a private cost rearranges that wealth.' (Posner: Economic Analysis of Law) HENCE "Efficiency" - allocation of resources in which value is maximized. "Wealth maximization" - Pareto-optimum (we reach it when no Pareto-superior transaction is possible) --Pareto-superior transaction - makes at least one person better off and no one worse off. --Kaldor-Hicks concept of efficiency: the winners could compensate the losers Keep in mind that this technical sense of wealth maximization can always be understood in terms of social cost. (That is, wealth maximisation always takes the form of lowering or eliminating social cost.) Just by shifting resources from one agent to another we do not maximize wealth. (We just generate private cost for those who lose control over them.) Wealth is maximised when resources are shifted to more profitable use. That way, social cost is spared because there is social cost involved in the inefficient allocation of resources.
Practical reasonableness
NL The Natural Law Doctrine (or Naturalism, for short) can be seen to offer a way to make sense of some key features of normative claims and principles. Justifiable normative claims (e.g. sound moral judgments) reflect enduring principles of practical reasonableness We can speak of Naturalism in the sense of an abstract philosophical idea, as well as in the sense of a particular tradition of moral, political and legal philosophy. Tradition - practical reasonableness is the key oncept. Works moral examples, brings features of but NL is more general than that The principles of practical reasonableness are general and objective. The conceptual focus for Natural Law thinking is 'practical reasonableness.' > NL principles practical reasonableness - if law unreasonable it loses validity Naturalism - summary The conceptual focus for Natural Law thinking is 'practical reasonableness.' Human action has standards that do not stem from human decisions, choices or commitments. The principles of practical reasonableness are general and objective - they are, in this sense, 'natural' (i.e. not man-made) The exercise of human reason can provide us with access to the principles of practical reasonableness
Basic goods
Natural law - Finnis The basic goods serve as an explanation of why we do things. Any worthwhile activity is worth doing because it participates in one or more basic goods. The Reality of the Basic Goods --The statement 'these are the seven basic goods' is just as true as the statement 'there are infinitely many primes.' The basic goods exist independent of human thought, and so we can put them in 'reality' in the same sense that maths lives in reality. The basic goods, of course, do not have physical form.
Normativity
Normativity is the phenomenon in human societies of designating some actions or outcomes as good or desirable or permissible and others as bad or undesirable or impermissible. A norm in this normative sense means a standard for evaluating or making judgments about behavior or outcomes. (?) How do we explain the 'normativity' of law—the way law functions, or could function, to guide human conduct? It is not obvious what would count as an answer. Laws, or at any rate many laws, are norms. There are legal norms that require us to take reasonable care to avoid injury to others, norms that permit us to use public footpaths, and norms that enable us to vote in elections. If such laws are norms, then to ask how we might explain their normativity is to ask how to explain the normativity of norms
Exclusive Legal Positivism
Pos may use to reply to Dworkin 1. Principles play a role in judicial reasoning but they are not part of the law (they are not binding as law) =Exclusive Legal Positivism Raz has developed Exclusive Legal Positivism Exclusive Legal Positivism --Raz's theoretical account provides the core example for Exclusive Legal Positivism. --'Legal validity is exhausted by reference to the conventional sources of law: all law is source-based, and anything which is not source based is not law.' (Marmor: 'Exclusive Legal Positivism') What is the strength? Exclusive Legal Positivism offers an attractive explanation of the fact that moral mistakes in themselves do not affect the validity of legal decisions. [Think of a morally problematic decision by the Supreme Court. Would we say that it is not law due to its moral flaws?]
Inclusive Legal Positivism
Positivist way that you might reply to Dworkin 2. Principles are indeed part of the law because the rules of recognition can actually accommodate them =Inclusive Legal Positivism
Transaction cost
Posner Transactions Ideas of cost, idea to increase wealth then need to allocate resources to max. Way to do it is by way of transactions - moving resources around. T can diminish it They can lead to inefficient allocation They generate transaction costs - like identifying parties, issue of holding people to the bargain, enforcing the bargain. All driving up the cost of the transaction. If there are no transaction costs, the efficient solution will occur spontaneously regardless of the allocation of property rights. If liability lies with factory, they will buy the smokescreen as paying damages more expensive. Residents smoke screen as tumble dryer is more expensive. Both sides are incentivised to go for the most efficient solution.
Allocative efficiency
Posner and the Economic Analysis of Law An efficient transaction increases social wealth but, in itself, if does not generate more resources. --It does not make society more resource-rich. --However it incentivizes to more production, and it facilitates more production. In fact, Posner made some attempts early on to set up the idea of combining allocative efficiency and wealth maximization as a way to determine what justice demands. But he needed to give up on that theoretical initiative under the pressure of fierce criticism. This is how he ended up with the position quoted here. > There is more to notions of justice than a concern with efficiency. Wealth-maximization will not repair the original injustice of distribution. "Efficiency" - allocation of resources in which value is maximized.
Social cost
Posner and the Economic Analysis of Law Two fundamental types of social cost: 1. Not putting resources to the most valuable use 2. Asset destruction (e.g. accidents causing personal injury or property damage) Talk about cost, need distinction of private and social cost. Before it, unsure mobilise economic analysis in legal use. Legal analysis focuses on problems of social cost. A social cost diminishes the wealth of a society - private cost, you pay some money/dedicate time that is a private one. Private means transfer the resource to someone else. Private is uninterested - social result of interactions, wealth is diminished. Resources are poorly allocated.
Integrity
Ronald Dworkin: Law as integrity Developing theories of law by way of constructive interpretation - interpretive theories of law Not just theories of an interpretive practice: the theories are interpretive themselves Three conceptions of law: 1. Conventionalism 2. Pragmatism 3. Law as integrity ( his own and he thinks better than above) Integrity (as a political ideal) Principle that whatever you do, have to follow a coherent set of principles. Infuse law with a perception of justice, follow it coherently. --We insist that the state act on a single, coherent set of principles even when its citizens are divided about what the right principles of justice and fairness really are. Whichever conception of justice we, as a community, decide to pursue, we will pursue it coherently. It demands that we choose a coherent scheme of justice, but does not tell us which one. --Integrity requires the government to speak with one voice --Integrity is not the same as either justice or fairness. Is there any indication that we care about 'integrity' in this sense? Test your reaction to the idea of 'checkerboard legislation'. E.g. abortion legal in NE but not SE. Rationale? Not have referendum for parts, % do not matter arbitrary here D - hard to do justice against it - people currently legal, abortion think unjust for sure. In terms of justice step in right direction. Pro abortion say bitter then everyone. Both sides - chance to try of practice and see. Difficult conclusive argument against - but unacceptable in terms of integrity since we care about it. Treat like cases alike. Integrity is closely connected to equality: we must treat like cases alike. The ultimate justification for integrity is the principle of equal respect Law only mechanism to make sure Integrity is respected Starts to call integrity later as legality
Primary and secondary rules (Hart)
The Hartian account of legal systems The other side of the theory: accounting for the character of legal systems According to Hart, legal systems are sets of rules. But the law is only one of many rule-governed human practices What makes the law distinctive among the variety of rule-governed practices? Must be something specific about the law. Can see in LS, see the interplay of 2 types of rule - primary and secondary Law as a union of two types of rules (Developed) legal systems are unions of two types of rules: primary and secondary. Primary rules The law is designed to make practical difference: to provide normative guidance to citizens. There must be rules that concern directly what people are supposed to do. Such rules impose duties on ordinary citizens (duty-imposing rules). A normative system consisting only of primary rules would suffer from grave functional difficulties. It could be a matter of debate what counts as a legal rule (problem of 'uncertainty'). It would be difficult to adjust the rules to changing circumstances (problem of 'static character'). It could be a matter of endless debate whether a particular rule has been violated (problem of 'inefficiency'). Three types of secondary rules We address these difficulties with 'rules about rules': secondary rules Rules of recognition Addressing 'uncertainty: setting the criteria for identifying legal rules Rules of change Addressing the problem of 'static character': establishing procedures for creating rules Rules of adjudication Addressing 'inefficiency': Establishing procedures for determining violations of rules and their consequences The rules of recognition (most important) In the Hartian account, rules of recognition play a pivotal role. This is by far his most important theoretical construct: the key to a number of his legal theoretical claims The rules of recognition connect his conventionalism about normativity with his account of legal systems as unions of two types of rules.
Normal Justification Thesis
The Normal Justification Thesis Summarised by Raz - subject better apply to reasons and authority of above. Captain + ship, doctor and hospital 'The normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly.' (Raz: 'Authority, Law and Morality') The Normal Justification Thesis Authority better to decide for us - heart of this thesis by Raz. NJT tells you when the authority is justified/legitimate Humans make mistakes, better to follow instructions of those in better position
Separability Thesis
The Separability Thesis For Hart, the core of Legal Positivism is the idea that law and morality are separable. (not true for every psotivist) For others positivists, the so-called Sources Thesis may be more important. H - legal norms are not necessarily morally right. 'Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.' (Hart: The Concept of Law) The challenge: the separability thesis makes it more difficult to account for the normativity of law. It is because adopting the Separability Thesis is a crucial prerequisite to analytical clarity about the law. However, the Separability Thesis makes it difficult to account for the normative character of law (and its ability to impose obligations in particular). Establishing the separability thesis Law and morality are separable because the rules of recognition are conventional (as opposed to moral) in character. A rule becomes legal not because of its moral merits but by meeting conventional criteria of legal validity (set out in the rules of recognition). An immoral rule can still be a legal rule as long as it meets the (conventional) criteria of validity. A morally desirable rule is not a legal rule if it does not meet the conventional criteria of validity. The character of Hart's legal theory Hart's legal theory offers a conventionalist account of law. It depicts law as a normative practice built on the foundations of social conventions. What makes the theory positivist is the insistence on the separability thesis. Hart makes the case for the separability thesis by arguing that the normativity of law is social (not moral) normativity... ... because it is based on rules of recognition. Raz advocates the Separability Thesis > Sources thesis accepted, separability thesis follows
Imperative Theory of Law
The creation of the imperative theory of law - in support of a political project (Bentham) The elaboration of the imperative theory of law (Austin, Salmond) aka Imperative theory of law (Bentham and Austin) --The normative force of law arises from the ability of institutions to use coercion to generate compliance Austin The imperative theory of normativity Distinctive answer to normativity . What makes a theory plausible is his answer to normativity Law creates obligation - behaviour no longer an option. Prescribes - q how do we explain obligatory nature of the law? The law impose on us, is it moral oblig? Legal? How do they differ - how accept for oblig? 1. Make legal obligations separate since they can have sanctions. (Austin - moral merit of law different from validity).
Internal and external points of view (Hart)
The material on what Hart called the internal and external points of view makes his discussion of obligation complicated. That is most directly aimed at the legal realists, who treat having a legal obligation as equivalent to a prediction about punishment. The internal point of view is the point of view of someone who accepts a rule and attempts to comply with it. --For example, you take the rules of English grammar as telling you what you can and cannot say. The external point of view is the point of view of someone who is concerned with what will happen if a rule is broken or kept. The rule itself is only relevant in helping to make a prediction. You do not typically adopt the external point of view with regard to grammar. You don't try to predict the consequences of keeping or departing from the rules of grammar might be when you're speaking or writing. You just, well, follow the rules. Hart's opponents maintain that the question "what is law?" is a request for a prediction about what the state will do. Will I be punished if I do this? Will the state enforce this contractual agreement? The stuff that people study when they study the law, meaning statutes, judicial decisions, and so on, is only useful because it aids them in making accurate predictions about what the state will do. Hart argues that those who hold this opinion are missing out on the internal point of view.
Formalism
The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate system that could be applied mechanically (hence the label 'mechanical jurisprudence'). Formalism has been called 'the official theory of judging'. It is the thesis to which legal realism is the antithesis.
Utilitarianism
Utilitarianism is a philosophical and economic doctrine that the best social policy is that which does the most good for the greatest number of people.
