Jurisprudence Y2S1 Week 1: 1.1 Hard Cases & 1.2 Legal Reasons

Key terms and cases (Issue / Facts / Held) from my OneNote notes and the Juris 1.1/1.2 lecture slides. 'Added' notes are from outside those sources.

What is jurisprudence, and what three TYPES of question does it ask?

Jurisprudence is the study of the PHILOSOPHY OF LAW. Its questions are philosophical and interlinked: how you answer one affects the others, and how hard cases like Riggs should be decided.

1. CONCEPTUAL: what we mean by the terms we use (e.g. what is 'law'?).

2. NORMATIVE: what OUGHT to be the case (e.g. what should judges do?).

3. DESCRIPTIVE / EMPIRICAL: what IS the case (e.g. what do judges actually do?). Know the difference between them and how they interact.

The course's three units: name each and its type of jurisprudence

1. VALIDITY: 'ANALYTIC jurisprudence'. What is our concept of law, and what counts as law?

2. LEGITIMACY: 'NORMATIVE jurisprudence' (conceptual + normative). How does law affect our moral positions? Is there a duty to obey?

3. FUNCTION: 'SOCIOLOGICAL' and 'CRITICAL' approaches. How does law actually operate in modern society (descriptive), how should we evaluate that role (critical/normative), and what reforms follow?

(Validity): the key questions

• How do we generate legal CONTENT from legal SOURCES? • What are the criteria of a law's VALIDITY? • When, if ever, are MORAL reasons LEGAL reasons? • How is law distinguished from other norm-governed activities (etiquette, games, fashion)? • How is law distinguished from mere HABITS? • Is law necessarily COERCIVE? How does it differ from an armed threat?

The NY 'Revised Statutes' (1828): what were they, and why do they matter for Riggs?

• Early 19th-century New York law was a confusing mix of English and New York statute and common law. • Influenced by JEREMY BENTHAM (a champion of codification), New York undertook a 'REVISION' (they avoided the word 'codification'): a comprehensive organisation, clarification and systematisation of the law. • It is widely recognised as the FIRST codification in the common law world. • 2 R.S. 63 §40 set the formalities of wills (written, signed, witnessed). §42 listed the ONLY ways to revoke or alter a will. This clear, codified rule is what made Riggs HARD.

What is an EASY case?

A case where there is NO dispute over what the LAW is, or how it applies to the case. • That does NOT mean there is no disagreement: the dispute is over the FACTS (what happened), not the law. • The vast majority of FIRST-INSTANCE cases are 'easy' in this sense.

What is a HARD case?

A case where LEGAL JUSTIFICATION is problematic: the applicable LEGAL REASONS do NOT clearly determine the outcome, EVEN WHEN THE FACTS ARE NOT IN DISPUTE.

• What exactly makes a case hard is itself disputed.

• Hart puts it down to the 'open texture' of legal rules; Dworkin says even hard cases have a right answer found through principles; the Realists say the legal materials are indeterminate.

• 'Hard cases are apt to introduce bad law' (Rolfe B, Winterbottom v Wright, 1842). But they are excellent illustrations of the central questions of jurisprudence.

Seven jurisprudential questions raised by Riggs v Palmer

1. What SHOULD judges do in hard cases: apply the law, or reach just decisions? What is law FOR?

2. What DO judges do in hard cases: do they apply legal norms to the facts?

3. Do legal reasons always, or ever, determine a single RIGHT ANSWER?

4. What counts as VALID law? Which considerations are properly LEGAL reasons?

5. What KINDS of norms does law contain: only binary RULES, or also PRINCIPLES with a dimension of WEIGHT?

6. What are the SOURCES of law, and how do we derive CONTENT from them?

7. Are reasons of JUSTICE or MORALITY legal reasons?

Earl J's two arguments in Riggs v Palmer (majority)

1. RATIONAL / EQUITABLE INTERPRETATION: lawmakers intended beneficiaries to receive gifts, but NEVER intended a beneficiary who murdered the testator to benefit. Laws 'exceed' or 'fall short' of their makers' intention, so judges gather that intention by 'rational conjecture'. He cites Bacon, Aristotle and the Code Napoléon.

2. COMMON LAW MAXIMS: all laws and contracts may be controlled by general, fundamental maxims of the common law: 'NO ONE SHALL BE PERMITTED TO PROFIT BY HIS OWN FRAUD, or take advantage of his own wrong… or acquire property by his own crime.' These maxims are grounded in public policy and 'universal law', and no statute has superseded them.

Gray J's arguments in Riggs v Palmer (dissent)

1. The court is bound by 'the RIGID RULES OF LAW established by the legislature'. The matter 'does not lie within the domain of CONSCIENCE'.
2. Equity and natural justice might be good reasons for the LEGISLATURE to enact a rule barring murderers from inheriting, but without such legislation courts cannot 'institute such a system of remedial justice'. Foreign civil-law rules do not help.
3. Denying the inheritance would impose an ADDITIONAL PUNISHMENT on Elmer that the criminal law did not provide, and courts have no warrant to add to his penalties.

The 'standard' contrasts drawn between Earl J and Gray J, and why the lecturer warns against them

The celebrated contrasts: • Gray = outdated, rigid FORMALISM; Earl = flexible, alive to EQUITY and substantive justice. • Gray = an impoverished view of law as only RULES; Earl = law also includes background PRINCIPLES. • Gray = legal POSITIVISM; Earl = NATURAL LAW. The lecturer's warning: these characterisations are 'REDUCTIVE and overly simplistic' and should be RESISTED. Show this nuance in exam answers, e.g. a positivist can accept principles made legal by social sources, and Gray J's dissent can be defended on democratic and separation-of-powers grounds.

The rules vs principles reading is Ronald DWORKIN's (Taking Rights Seriously, 1977), where Riggs is his leading example against Hart.

Riggs v Palmer: why is it an OUTLIER, and what are the surprising background facts?

• The case went the OTHER way at first instance and in the NY Supreme Court. Most observers expected Elmer to WIN. • Earl J's approach persuaded many jurisprudes, but it was and remains an OUTLIER among US authorities. Few later US courts agreed, many explicitly rejected it, and the NY Court of Appeals itself 'backtracked significantly' in a similar case in 1895. • Elmer was sent to a STATE REFORMATORY, not prison. He served only 4 YEARS and had been on parole for over two years by the time of the 1889 decision. This undercuts Gray J's 'already punished' framing, or supports it, depending on your view.

Coke v King James I (1608): 'artificial reason' of law

James I claimed the power to take disputes from the courts and decide them himself, as law was founded on reason and he had reason as well as the judges. Sir Edward COKE replied that the King was not learned in the laws of England. Cases are decided 'not by NATURAL REASON but by the ARTIFICIAL REASON and judgment of law', which requires long study and experience. Point: the distinctiveness of legal reasoning lies in its ARTIFICIALITY. Added: this episode is often called Prohibitions del Roy.

John Quincy Adams on 'Law-Logic' (1819)

Discussing the acquittal of the privateer John Daniel Danels 'on a legal quibble', Adams called it 'LAW-LOGIC': 'an artificial system of reasoning, exclusively used in Courts of Justice, but good for nothing any where else'. Outside courts the end of reasoning is TRUTH or JUSTICE, but in courts it is LAW ('Ita lex scripta est': so the law is written). Like Coke, he locates law's distinctiveness in ARTIFICIAL reasons, but views it critically.

The THREE dimensions of law's artificiality

1. Law's ARTIFICIAL REALITY: legal norms are human creations and can make things 'true' by saying them.
2. Law's INSTITUTIONAL artificiality: adjudication is time-sensitive, resource-limited and binding, which creates courtroom-specific rules.
3. Law's MORALLY NECESSARY artificiality: to serve moral goals, law must use general norms that draw arbitrary lines. Together they produce an artificial set of argumentative resources (reasons) whose use depends on how they 'FIT' within the whole legal structure. Skilful use of these is 'THINKING LIKE A LAWYER'.

Law's ARTIFICIAL REALITY: explain it with examples

Most legal norms, and so most legal reasons, are CREATED BY HUMAN AUTHORITY. Law can make things TRUE BY SAYING SO ('the accused is hereby acquitted'), so things can be legally true though false or impossible: • a whale is a fish (Maurice v Judd, 1818) • 'as a matter of law, this house is haunted' (Stambovsky v Ackley, 1991) • Rwanda is a 'safe country' (Safety of Rwanda (Asylum and Immigration) Act 2024) Also: • a MISTAKEN judicial decision can still be 'correct' in the sense that the law now is as the decision holds; • statutory interpretation artificially imputes a single ('univocal') intention to a multi-voiced, conflicted legislature.

Law's INSTITUTIONAL artificiality: explain it with examples

Scholars can debate forever with low stakes and bind no one. Judicial decisions are TIME-SENSITIVE, RESOURCE-LIMITED, BINDING and potentially LIFE-ALTERING. So courtroom reasoning adds artificiality: • arguments barred if not raised in time • admissibility rules exclude salient evidence, and juries are told to 'disregard' evidence • burden-shifting rules (presumptions, exceptions) that only make sense in court • guilty people freed 'on a technicality', and a high standard of proof. Fixes can make things worse (e.g. the 'not proven' verdict) • the trial is structured as an artificial GAME or contest that parties openly play to win

Law's MORALLY NECESSARY artificiality: explain the tension and the tools for managing it

Law performs morally important roles: CERTAINTY and STABILITY (so people can plan) and solving COLLECTIVE ACTION problems. To do this it must be an institutionalised system of GENERAL norms. But we also expect JUST outcomes that respond to the PARTICULARS of each case. General norms draw arbitrary lines (e.g. the voting age) and are both UNDER- and OVER-INCLUSIVE. Vague standards are no cure: Montana's 'reasonable and proper' speed law was struck down. Tools for managing the tension: CANONS OF INTERPRETATION, leeway in RATIO formation, DISTINGUISHING, and PROSECUTORIAL DISCRETION.

The 'standard view' of what law is (source → norm)

Law is a set of ARTIFICIALLY CREATED NORMS that cohere into a SINGLE SYSTEM. • The norms are derived from AUTHORITATIVE SOURCES (statutes, cases…). • The CONTENT of a source is NOT identical to the content of the NORM it enacts. • That content must be derived by INTERPRETATION. (This sets up 1.3 'From source to norm'.)

What is a REASON, and when is a fact a reason?

A reason is a FACT that COUNTS IN FAVOUR of something (an action, a belief, an 'ought'). A fact is a reason when a NORM places that fact in a SUPPORT RELATION with a conclusion. Norms can be represented as conditionals that turn facts into reasons. Example: I promised to do X, so I ought to do X, because a moral norm says we ought to keep promises. • Moral norms make MORAL reasons. • LEGAL norms make LEGAL reasons (facts that count in favour of legal oughts or consequences).

Conclusive vs pro tanto reasons, and the matching types of norm

• CONCLUSIVE reason: 'If [reason] then [conclusion]'. It settles the matter.

• PRO TANTO reason: 'If [reason] AND there are no countervailing considerations, then [conclusion]'. It has weight but can be outweighed. So there are two types of legal norm:

• RULES make facts CONCLUSIVE reasons for legal consequences.

• PRINCIPLES make facts PRO TANTO reasons for legal consequences.

• This maps onto Dworkin's distinction between rules that apply 'all-or-nothing' and principles that have a 'dimension of weight' (see Riggs: 'no one shall profit from their own wrong').

Authoritative reasons: their two key characteristics, and the case that illustrates them

1. CONTENT-INDEPENDENT
2. EXCLUSIONARY Illustration: Lord HOFFMANN in SSHD v AF (No 3) [2009] UKHL 28: he agreed the ECtHR's judgment in A v UK required the appeals to be allowed, 'with very considerable regret, because I think that the decision… was wrong… Nevertheless… no choice but to submit.' He acted on the authority's say-so despite disagreeing on the merits (content-independence), and did not weigh his own view against it (exclusionary).

Content-independent reasons

A reason to do or believe something that is INDEPENDENT OF THE MERITS of doing or believing it. They contrast with SUBSTANTIVE (content-dependent) reasons. • PROMISE: I have a reason to do X because I promised, whatever X's merits (had I promised not to, that is what I'd have reason to do). • COMMAND by an authority: it is the authority's SAY-SO that gives the reason, not the merits of what is commanded. This is a feature of ALL reasons created by exercising a NORMATIVE POWER. Added: the term is associated with H.L.A. Hart.

Exclusionary reasons

Authoritative reasons are NOT just one more reason to weigh in the balance. They EXCLUDE or PRE-EMPT the addressee from acting on the reasons they would otherwise weigh.

• Only then can authority perform its important SOCIAL ROLE (coordination, settling disputes).

• This is NOT a 'SURRENDER OF JUDGMENT'. It concerns ACTION, not what you believe. You may still think the authority wrong (Lord Hoffmann).

• It is the HALLMARK of PRACTICAL authority, and not shared by all content-independent reasons.

• This is Joseph RAZ's account (Practical Reason and Norms; The Morality of Freedom, the 'pre-emption thesis'), central to 2.5 'The service conception'.

Practical vs theoretical authority

• PRACTICAL reasons are reasons for ACTION (what we ought to DO). PRACTICAL AUTHORITIES give CONTENT-INDEPENDENT, EXCLUSIONARY reasons for action (e.g. law, a commanding officer).

• THEORETICAL reasons are reasons for BELIEF (what we ought to BELIEVE). THEORETICAL (expert) AUTHORITIES give CONTENT-INDEPENDENT reasons for belief (e.g. doctors, climate scientists).

Prudential vs moral reasons for complying with law

• PRUDENTIAL reason: complying serves our own long-term SELF-INTEREST or wellbeing (e.g. avoiding sanctions). • MORAL reason: complying is the RIGHT thing to do. Morality concerns how we ought to treat OTHERS (fairly, justly). Both are NORMATIVE ORDERS like law: they have norms that turn facts into reasons. Both exist as POSITIVE orders (the actual prudential or moral views of a society). These two stances towards law recur throughout the course (e.g. Austin's sanctions vs Hart's internal point of view).

Subjective vs objective prudence, and the test for objectivity

• SUBJECTIVE prudence: what is good for you depends on the goals, interests or desires you ACTUALLY have. • OBJECTIVE prudence: some things are good for humans as a MATTER OF FACT, whatever the individual wants. Test of objectivity: a question is objective if there is a 'MATTER OF FACT' about it, i.e. if in a disagreement at least ONE PARTY COULD BE WRONG, and its answer can be true regardless of anyone's beliefs.

Moral relativism (pure subjectivism): three objections from the lecture

The view that morality is purely subjective. Some philosophers hold it, but it is NOT a majority view. Objections:

1. It cannot make sense of genuine MORAL DISAGREEMENT (if all views are equally 'true for you', what are we disagreeing about?).
2. It struggles to explain our practices of moral ARGUMENTATION (why argue if no one can be wrong?).
3. It does not take our LINGUISTIC practices at face value, so it needs a 'debunking' explanation of why we talk as if morality were objective. Note: the mere FACT of disagreement does not show morality is subjective.

Robust reasons and robust normative orders

If there is an objective morality, its norms give us more than an ARTIFICIAL reason to act: they give a ROBUST reason. The same goes for genuine long-term self-interest. So MORALITY and PRUDENCE are ROBUST normative orders, while LAW's reasons are (at least in the first place) ARTIFICIAL. KEY COURSE QUESTION: how do LEGAL reasons relate to ROBUST (especially MORAL) reasons? This is at the core of the positivism vs natural law / Dworkin debates.

Brute facts vs social facts (with examples)

• BRUTE facts: MIND-INDEPENDENT realities, e.g. it is raining; a dropped heavy object falls; water is H2O. • SOCIAL facts: depend for their existence on the existence and PRACTICE of a group of people. The example is a norm that men remove their HATS IN CHURCH. If men generally do so and criticise those who don't, the norm EXISTS as a social fact, and anyone denying it would be WRONG. Note: saying a social norm exists says NOTHING about whether there is a ROBUST reason to comply. Added: the hat example is H.L.A. Hart's (The Concept of Law), used to explain social rules and the internal point of view.

Social facts vs institutional facts (Searle / MacCormick)

• ALL institutional facts are social facts, but NOT vice versa. • INSTITUTIONAL facts are products of CONSTITUTIVE RULES (which are themselves social, and sometimes institutional, facts). These rules make certain actions POSSIBLE. • Chess: move a pawn 5 squares or a knight in a straight line and you are NOT PLAYING CHESS. Football: pick up the ball and throw it into the goal and you are no longer playing football. Law is the PARADIGM creator of institutional facts: constitutive rules for creating a CONTRACT mean that, once the conditions are met, a contract EXISTS as an institutional fact.

: John SEARLE (philosopher) and Neil MacCORMICK (Edinburgh legal theorist: Institutions of Law).

Constitutive vs regulative rules

• CONSTITUTIVE rules take the form 'X COUNTS AS Y IN CONTEXT C'. They CREATE the activity (the rules of chess; the rules for forming a valid contract or will). • REGULATIVE rules regulate behaviour WITHIN the activity the constitutive rules make possible. You can break them and still be playing, e.g. being OFFSIDE or committing a FOUL in football.

If law is a human creation, how can legal questions be 'objective'?

Law creates INSTITUTIONAL FACTS through constitutive rules. So there can be a 'FACT OF THE MATTER' about legal questions (e.g. whether a contract exists), even though law depends on humans for its existence.

• This does NOT claim that all, most, or even any legal DISAGREEMENTS have a correct matter-of-fact answer. Different theorists in the course take different positions on this (e.g. Realists vs Dworkin's 'right answer' thesis). It only explains the intuition that legal questions can have factual answers.

CASE: Riggs v Palmer (1889) 115 NY 506 (NY Court of Appeals)

Issue: Could a beneficiary who MURDERED the testator inherit under a valid will, when the NY Revised Statutes (2 R.S. 63 §42) exhaustively listed the grounds for revoking or altering a will and none applied? Facts: Francis Palmer's 1880 will left most of his estate to his 15-year-old grandson ELMER. Francis remarried in 1882, disapproved of Elmer's courtships and spending, and threatened to disinherit him. In April 1882 Elmer (16) poisoned Francis's rum with STRYCHNINE and was convicted of 2nd-degree murder. Francis's daughters, including Lorette Riggs, sued for the estate. Held: 5–2, Elmer could NOT inherit. • Both sides AGREED that, read LITERALLY, the statutes let Elmer inherit. They disagreed over whether that ended the matter. • Earl J (majority): rational/equitable interpretation of legislative intention, plus the common law maxim that NO ONE MAY PROFIT FROM THEIR OWN WRONG. • Gray J (dissent): the court was bound by the rigid rules of the legislature, and taking the inheritance would add a punishment not provided by law. Significance: the paradigm HARD CASE, central to Dworkin's critique of Hart (rules vs principles). But it is an OUTLIER in US law.

CASE: Winterbottom v Wright (1842) 10 M & W 109 (Court of Exchequer)

Issue: Could a coachman injured by a defective coach sue the supplier who had contracted to maintain it with someone else (the Postmaster-General)? Facts: Added: Wright contracted with the Postmaster-General to supply and maintain mail coaches. Winterbottom, a coachman employed by a third party, was injured when a coach collapsed because of a defect. Held: NO remedy. There was no PRIVITY of contract, so he could not sue in contract, and no duty was recognised otherwise. Jurisprudential point: Rolfe B admitted it was a 'hardship' for the plaintiff but said courts must not be influenced by it: 'HARD CASES… ARE APT TO INTRODUCE BAD LAW.' (Added: later overtaken by Donoghue v Stevenson.)

CASE: Maurice v Judd (1818) (New York)

Illustrates law's ARTIFICIAL REALITY: law can make false things legally 'true'. Issue: Was whale oil 'fish oil' under a New York statute requiring fish oil to be inspected and taxed? Facts: Added: Maurice, an oil inspector, sued Judd, a merchant, for the penalty for selling uninspected 'fish oil' (it was actually spermaceti whale oil). Naturalists testified that a whale is a MAMMAL. Held: The jury found for the inspector, so as a matter of law a WHALE IS A FISH (for the purposes of the statute). The legislature then amended the law to exclude whale oil.

CASE: Stambovsky v Ackley (1991) 169 AD 2d 254 (NY Appellate Division)

Illustrates law's ARTIFICIAL REALITY: 'as a matter of law, this house is haunted'. Issue: Could a buyer rescind a house purchase because the seller failed to disclose that the house was reputedly HAUNTED? Facts: Added: the seller, Ackley, had publicised the house's ghosts in the local press and Reader's Digest. The buyer from out of town, Stambovsky, only learned of the reputation after contracting and sought rescission. Held: Rescission ALLOWED. Having publicly reported the ghosts, the seller was ESTOPPED from denying their existence, so 'as a matter of law, the house is haunted'. Given this unusual reputation, which a buyer could not discover by inspection, caveat emptor did not apply.

CASE: Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28

Illustrates AUTHORITATIVE REASONS: content-independent and exclusionary. Issue: Did the Art 6 ECHR fair trial right require people subject to CONTROL ORDERS to be told the gist of the closed evidence against them? Facts: Added: people subject to non-derogating control orders under the Prevention of Terrorism Act 2005 were given decisions based largely on closed material they could not see. The ECtHR in A v UK (2009) had just held that the controlled person must be given enough information to give effective instructions. Held: Appeals ALLOWED. The House of Lords followed A v UK. Lord HOFFMANN agreed 'with very considerable regret' because he thought the ECtHR was WRONG, but 'your Lordships have no choice but to submit'. He acted on the authority's say-so despite disagreeing on the merits.

CASE: State v Stanko (1998) (Montana Supreme Court), the 'reasonable and proper' speed law

Illustrates law's MORALLY NECESSARY artificiality: vague standards are no cure for the arbitrariness of general rules. Issue: Was Montana's 'basic rule' speed statute unconstitutionally VAGUE? Facts: The statute required drivers to drive 'in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing'. Added: Stanko was convicted of speeding (about 85 mph) under it. Held: Struck down as VOID FOR VAGUENESS (due process). It 'impermissibly delegat[ed] the basic public policy of how fast is too fast… to policemen, judges, and juries for resolution on an ad hoc and subjective basis'. (Note: the slides quote the ruling without naming the case; the name is adde