Law, Politics, and Morality Midterm Exam

Murphy's Three Commonplaces About Law

1. Law is a social phenomenon 2. Law is authoritative 3. Law is for the common good

Murphy: Law Is A Social Phenomenon

Law is a social fact, embedded in society, and reflective of custom. Understanding law means understanding the time and place in which it exists.

Murphy: Law is Authoritative

Law, as command, is usually enforced, but there may be other reasons it is obeyed.

Murphy: Law is For the Common Good

Law creates order to produce good. Law is for order.

Characteristics of the Western Legal Tradition

1. Demarcation between legal and other institutions (i.e., legal, political, and religious), although law permeates all. 2. The rule of law. 3. Law has its own internal logic. 4. Widespread legal doctrine, with specialized training for legal professionals.

Common Law

A legal system that is essentially unwritten, centered on judicial precedent, and remedial rather than rights-based. It emphasizes rights revealed through judicial decisions and includes trials by jury.

Civil Law

A legal system based on comprehensive codification of legal codes. Law is written and broad, and statutory law is deemed more important than judicial interpretation or case law.

What Legal System Does the U.S. Function Under?

Common law dictates the functioning of the American legal system, but civil law plays a small role as well.

Aquinas: Natural Law

An objectively ascertainable measure of right and wrong, with law as a reflection of this moral truth. We are guided by the tenets of natural law, and we instinctively seek it through rational deliberation.

Religious Natural Law

Eternal law is the father of natural law; eternal law is only known to God, though it is discoverable by rational creatures. Natural law compels us to pursue particular (Christian) goods like life, knowledge, procreation, society, and reasonable conduct.

Aquinas's Four Categories of Law

1. Eternal law: divine reason known only to God. 2. Natural law: participation in eternal law by rational creatures. 3. Divine law: revealed in Scripture. 4. Human law: reasonable and enacted for the common good.

Aquinas: Can Laws Not be Laws?

Yes, laws that conflict with natural law lose their moral binding and therefore lose the requirement to be obeyed.

Hobbes: Natural Law

The natural state of man is perpetual war, brought on by competition. This state of nature is escaped through natural law. 1. Peace. 2. Mutual divestment of certain rights to achieve peace. 3. Social contracts must be honored. Governments must exist to decide right and wrong.

Locke: Natural Law

The state of nature is paradise, with only one flaw: inadequate protection of personal property. Natural law encourages limited government and the maximization of individual liberty. The social contract exists to protect personal property.

Rousseau: Natural Law

The social contract is an agreement between the individual and the community, this agreement forms the "general will." Certain natural rights exist, but government can legitimately infringe upon such rights to ensure the general will.

Model of Natural Law

Moral truth from God/nature -> discovery by rational creatures -> enforcement by sovereigns -> positive law is codified -> subjects under the law, follow the law

Limitations to Natural Law

Humans are not in agreement on morals. Does not answer the question: What is Law?

Austin: Legal Positivism

Law is a social fact, with no necessary connection to morality. Law has more to do with commands, obligations, and potential punishments than with morality. Law is meaningful beacuse of punishment.

Austin: Model of Law

Sovereign -> positive law -> subjects follow law

Austin: What is Law?

Law is one's wish or intention that another act in a certain way. A command expressed by a superior who has the capacity and willingness to inflict some evil in the absence of compliance.

Positive Law

Law that is written.

Austin: Habit of Compliance

A habit of following the law as given by a superior, derived from the expectation of punishment.

Austin: Who Gives Law?

Laws are given by those who don't themselves have a general habit of compliance with respect to anyone else.

Limitations to Austin's Positivism

Incomplete account of who gives law, an incomplete account of obligation, lack of room for morality, and failure to recognize that not all laws fit the model.

Hart: Critique of Austin

Laws apply to both enactors and subjects. Laws such as wills or laws of succession do not fit the Austin model. Austin does not account for the continuity of legislative authority. Legal rules that are not orders exist, such as constitutional delegation of powers. Austin misunderstands obligation.

Hart: "Austin Was Right on This One!"

Hart agrees with Austin that law makes human conduct, in some sense, non-optional or obligatory.

Hart: Obligations vs. Feeling Obliged

Obligations are permanent. They don't vary based on punishment or situation and are not wrapped up in sanctions, as 'feeling obliged' is.

Hart: Primary Rules of Obligation

Primary rules confer obligations or duties upon people. They are not a 'sign' that something will happen; they are the 'signal' for human conduct to change, to make something happen. They require people to do or abstain from certain actions, involuntarily.

Hart: What Are The Limitations of Only Primary Rules?

Uncertainty about what the rules are, inability to change the rules, and vagueness about knowing when rules are broken.

Hart: Secondary Rules

Rules that supplement primary rules. They confer powers and provide for operations.

Hart: What is Law?

A union between primary and secondary rules.

Hart: Types of Secondary Rules

1. Rule of recognition: allows us to know what the rules are and lists rules, or identifies them, based on their origin. 2. Rules of change: clarify who gets to introduce new primary rules, how, and when. 3. Rules of adjudication: empower an authority to decide whether a primary rule has been broken.

Hart: Model of Law

Authority, tradition + primary and secondary rules -> obligations -> law

Hart: The Foundation of the Legal System

The rule of recognition is the standardized source that gives law its status.

Hart: Internal Statements

A point of view held by one inside a legal system, who accepts the rule of recognition and applies that rule in recognizing some rule of the legal system as valid.

Hart: External Statements

The language of an external observer of a legal system who, without accepting the rule of recognition, states the fact that others observe it.

Hart: When is Law "Valid?"

When a law satisfies all the criteria provided by the rule of recognition.

Hart: Identifying the Supreme Criterion

A criterion of legal validity is supreme if rules identified by reference to it are still recognized as rules of the system, even if they conflict with rules identified by other criteria, whereas the latter are not recognized if they conflict with the supreme criterion.

Ultimate Rule

Determines the validity of rules by tracing relevant secondary rules back through the system, where this tracing process stops is the ultimate rule.

Are the Supreme Criterion and Ultimate Rule the Same?

Not always. In England, they are not, but they are in the United States.

Hart's Limitations

Hart's tests for legal validity are entirely internal, and his model cannot address questions beyond the legal system.

Dworkin: Principles

Principles are legal ideas that judges can look to in cases, other than sticking to just using legal rules. A principle states a reason that argues in a direction, but does not necessitate a particular decision. Legal principles do not set out consequences that follow automatically when conditions are met. Principles have a dimension of "weight" or importance.

Dworkin: Rules vs. Principles

Rules are applicable in an all-or-nothing fashion, they cannot conflict with one another. Principles survive in tact when they fail.

Dworkin: Discretion (Weak 1)

Some official has final authority to make a decision within an existing legal structure, and that decision may not be reviewed or revoked by another official.

Dworkin: Discretion (Weak 2)

For some reason or another, the standards an official must apply to a decision cannot be applied mechanically, but demand the use of judgement.

Dworkin: Discretion (Strong)

An official may, on some issue, simply not be bound by standards set by another authority.

Dworkin: The Positivist Notion of Discretion

Judges must decide at their discretion if a case is not controlled by an established rule.

Dworkin: The Nominalist Notion of Discretion

Judges always have discretion beacuse they are the final arbiters of the law.

Dworkin: Binding Rules?

Some rules of law are binding beacuse they are accepted by the community, not simple beacuse they are laid down by some master rule.

Dworkin: Positivist Principles We Must Abandon to Treat Principles as Law

1) Laws are distinguished through a master rule/test 2) The doctrine of judicial discretion 3) Legal obligation exists only when an established rule imposes such obligation

Fuller: Morality of Aspiration

The morality of the good life, of excellence, of the fullest realization of human powers. Ideal rules of proper and fitting conduct, notions approaching those of duty, but not quite.

Fuller: Morality of Duty

The basic rules needed for an ordered society.

Fuller: Which Is More Related to Law? The Morality of Duty or Aspiration?

The morality of duty is directly related to law, while the morality of aspiration is less relevant.

Fuller: Eight Ways to Fail to Make Law

1. Failure to achieve rules at all 2. Failure to publicize rules 3. Abuse of retroactive legislation 4. Failure to make rules understandable 5. The enactment of contradictory rules 6. Rules that require conduct beyond the powers of the affected party 7. Too frequent changes in the rules 8. Failure of congruence between rules as announced and as administered

Fuller: Relationship Between Citizens and Government

There is a reciprocity between government and citizens with respect to the observance of laws. The government promises that if citizens follow the law, it will review citizens' conduct based only on those laws. If this bond snaps, nothing is left to ground the citizen's duty to observe the laws.

Fuller: Critiques of Hart

Morality is central to the law. The legal system expresses a moral vision, which allows for a limited normative evaluation of the law. We must reorient away from sources and towards the content or process of law.

Fuller: Principles of Legality

1. Established rules, not ad hoc 2. Rules are public and knowable 3. Rules are future-oriented 4. Rules are understandable 5. Rules are consistent with other laws 6. Rules are realistic to follow 7. Rules are stable 8. Congruence between rules as announced and administered

Hayek: Rule of Law

Government is bound by rules fixed and announced beforehand, rules which make it possible to foresee how an authority will use its coercive power in a given circumstance and thus plan one's behavior with that knowledge. The demarcation of the boundary between arbitrary and free government.

Hayek: What Does a Government Do Under the Rule of Law?

The government is prevented from taking ad hoc action. Its discretion in wielding coercive power is restricted. Under the rule of law, the government sets rules on the conditions under which resources may be used, leaving the end to the individual. If a government does fix laws to ensure certain outcomes, freedom no longer exists.

Hayek: Should Rules be General or Specific?

The state should only develop general rules.

Hayek: Moral Institution

An institution that imposes its moral vision onto people, whether that moral vision be just or unjust. These states decide who wins and who loses.

Hayek: Societies Without Rule of Law

In a society with no rule of law, the government will not necessarily be lawless and illegal, but the use of government coercive power will no longer be limited by pre-established law.

Dworkin: Political Principle v. Political Policy

Political principle is an appeal to individual rights, while political policy is an appeal to the general welfare. Judges should and do rest their judgments in controversial cases on arguments of political principle, not political policy.

Dworkin: Rule-Book Conception of Rule of Law

The power of the state should not be used against citizens except in accordance with public, positive law.

Dworkin: Rights Conception of Rule of Law

Citizens have moral rights to each other and political rights against the state. These are positive laws enforced upon demand through legal proceedings.

Dworkin: Morality and Rule of Law?

There should be no demarcation between the rule of law and substantive justice.

Dworkin: Under The Rights Conception of Rule of Law, What Do Judges Consider?

The moral rights of citizens, or their "background rights." Political principles are also weighed in controversial cases, but the principle will not apply unless in accordance with the rulebook.

Dworkin: What is the Rule Book in the Rights Conception?

The rulebook represents the community's attempts to capture moral rights and requires that any principle rejected in those efforts has no role in adjudication.

Dworkin: Why Do Judges Decide Controversial Cases Differently?

Two judges may decide differently beacuse they have contrary beliefs about background moral rights.

Hayek: Keeping Laws Neutral

Policies made by a government should make no attempt to ensure outcomes. Policymakers may understand the general notion of the consequences a policy will bring, but if that law is not imposed beacuse of the consequences, then it is neutral.

Dworkin: How Can We Ensure Laws are Just?

By seeing if they protect citizens' moral rights.

Fuller/Hayek vs. Dworkin: Rule of Law

Fuller and Hayek believe there is no moral goodness attached to the rule of law, while Dworkin argues that it should incorporate justice and a moral vision of good.

Dworkin: How Should Judges Be Making Law?

Judges should make political decisions as part of the rule of law. The principles weighed must be consistent with positive law, but judges should use moral reasoning.

Dworkin: What Should Judges NOT do?

Judges should not rule in a way that intends to influence a particular policy outcome.

Dworkin: What Is Necessary for Justice?

1. Scope: does the state recognize and enforce individual rights? 2. Accuracy: does that state recognize ALL relevant rights? 3. Fairness: do all people have the same protection of rights?

Dworkin: Types of Rule-Book Judicial Discretion

1. Semantic: what a phrase of law would be taken to mean in ordinary discourse. 2. Psychological: what a phrase of law is intended to do. 3. Historical: what the legislature at the time of the law would have done. 4. Moral: what the phrase of law should have done. All of these strategies reflect moral reasoning.

Dworkin: Judicial Discretion

Judicial discretion is a fact.

The Dual State

Where the normative realm coexists with a prerogative realm, with different definitions of law existing for ordinary and political circumstances.

Two Parts of the Dual State

1. Normative state: where the law on the books matters. 2. Prerogative state: where officials can skirt the law when it serves their interests or the interests of the state.

Dual State: Rule of Law

The dual state is the antithesis of the rule of law, due to the lack of progress that characterizes the prerogative state.

Dual State: Justice?

Justice is often incidental under a dual system, it is possible, but it is not the aim.

Dual State: Law and Order?

The dual state is characterized by law and order, but without the rule of law. Order is the goal, and law is the means to that end.

Dual State: Ways the Prerogative State Functions

1. Judges may feel pressured to rule in particular ways; the pressure may be public or private. 2. The state makes determinations about when and how to apply laws. 3. Laws are changed to directly benefit the people in power. 4. The regime will ignore the laws or the results of a judicial review. In all these cases, law may look like it is still functioning.

Whose idea is this: Eternal Law -> Natural Law, Laws not in Accordance With Natural Law Lose Moral Binding

Aquinas

Whose idea is this: The State of Nature is Perpetual War

Hobbes

Whose idea is this: The State of Nature is Paradise, but Without Proper Protection for Personal Property

Locke

Whose idea is this: Command-Punishment Model of Law

Austin

Whose idea is this: Primary and Secondary Rules

Hart

Whose idea is this: Legal Principles and the Rights Conception of Rule of Law

Dworkin

Whose idea is this: Eight Ways to Fail to Make Law and the Eight Principles of Legality

Fuller

Whose idea is this: Moral Institutions are Governments that Enforce a Moral Vision Onto Their Citizens Through Laws Which When Made, Expect Certain Outcomes

Hayek