Law Politics and Morality

What is law?

Law is:

-A social phenomenon in society and a social fact

-Embedded and contextual (time and place)

-Authoritative (Must be obeyed)

-For the common good

Western Legal tradition

-Is its own thing, separate from religion and is a coherent body of rules and principles with its own logic. Has a rule of law

Western rule of law

-Regular law, not arbitrary power

-Equality before law

-Derived from individual right

Common Law

-Unwritten (like british constitutional)

-Centered around the case rather than what’s written

-Doctrine of precedent, previous decisions decide what needs to be decided now

-Remedial rather than based on rights, meaning that rights are revealed BY decision

-Trial by jury

Civil Law

• Comprehensive codification, broadly written legal code

• Written constitution

• Statutory law more important than judicial interpretation or case law

Is the US more civil or common law

Civil law plays a role in the written rights but common law dictates how the system functions

Natural law

• Objectively ascertainable measure of right, wrong, good, bad, a reflection of moral truth

• Guided to natural law through seeking good and rational thinking

• Can’t be abolished

• Positive law in this case should reflect reality

• Laws that do not conform to this are not law or have no power

• Morality is first and foremeost; then the sovereign, positive law, and the subjects

Thomas Aquinas

• Believes in natural law

• Eternal law (reason only known to god) should be known to rational creatures as they are natural to impulse and intuitions

• Law identified rationally

• Encourages pursuit of particular goods, which include life, knowledge, procreation, society, and reasonable conduct

Locke and Hobbes

Believes in a secular version of natural law, pursuit of life, liberty, and property (pursuit of happiness meaning pursue what you are passionate about) Govt should be adhering to these rights. Universal declaration human rights and people should have more rights (more rights for more people)

Positive Law

• Laws that currently exist and are enforced, that which is written law

John Austin

• Legal positivist

• Law is what we assume it to be

• Social fact

• Does NOT have to be related to morality

• Is a clear distinction between what law IS and what law OUGHT to be

Austins view of law

• Law is about commands, obligations, and punishment

• Regardless of morals, commands are commands

• They are meaningful not because they are moral, but because disobeying laws means punishment

• We experience law as fear of punishment rather than a reflection of divine truth or natural law

Legal positivism

• Laws are followed because they must be, otherwise punishments will occur

• Sovereign, positive law, then subjects

• It is a command, intention backed by threat of sanctions and expressed by a superior who has capacity and willingness to enfore

• Habit of compliance, general commands

• Law does not have to be for the common laws, and laws can be pointless

• Person giving MUST have power

HLA Hart

• Legal Positivist

• Tries to capture the essence of the term law

• Believes law is a social phenomenon (like Austin)

• Critiques austins cersion of legal positivism

• Law is union of primary and secondary rules

HLA view of law

• Statues apply to ALL

• Laws don’t have to be commands or orders

• the sovereign does not account for the continuity of legislative authority (people in power after to change and repeal law) 

• Difference between having an obligation vs being obliged to: mandatory versus recommended nature for well being. Obligation means you feel you need to follow it, either from social pressure or sanctions

• Agrees with austin that law makes conduct obligatory, and ideas of rules

What are primary rules of obligation

They confer obligations or duties upon people. EX, you have to do this or that

These are NOT LAWS yet. even if the sanction is physical and social, something else must be written

Must be supplemented by secondary due to uncertainty, static-how can we change rules, and inefficiency-how do we know when they’ve been broken

What do societies who rely on the rule of obligation have to do?

Restrict violence, and have a majority who accept the rules

Secondary rules

Supplement the primary rules, conferring power and providing for operations

Types of secondary rules

Rules of recognition

Rules of Change

Rules of adjudication

Rules of recognition

Allows us to know what the rules are and lists them, or identifies based on origin. Can use to make claims about legal validity and efficacy

Rules of change

These clarify who gets to introduce new primary rules, how, and when

Rules of adjudication

Empowers individuals or groups to make authoritative decisions about whether a primary rule has been broken

Supreme criterion

A rank ordering of criteria of legal validity, like state law v. fed

Ultimate rule

Determined by the validity by tracing relevant secondary rules (how is this valid-XYZ) where the process stops is the ultimate rule

Principles of Legality (8)

• Rules, (not ad hoc, can’t be a one off, must be applied)

• Public, possible for everyone to know

• Future oriented (you can’t punish past behaviors with new law)

• Understandable and intelligible

• Consistent with other laws and not contradictory

• Realistic to follow

• Stable (They have to be certain and know that they are set in their place)

• Congruent bewteen rules and administration (and how judges rule, they must reflect law)

Why are the principles of legality/rule of law important?

Failure results in something that is not qualified as a legal system, legality deteriorates, and citizens do not follow or regard the laws

Judicial Discretion

A fact that is employed in deciding hard cases

Types of judicial discretion

• Semantic (rule book)

  • What the phrasing would be taken to mean in ordinary conversation (more literal)

  • Psychological (Rule book)

    • What they intended to do

  • Historical counterfactual (Rule book)

    • What the first legislature would have done, thinking in regards of what would you have done then faced with this issue

  • Moral (rights)

    • What should have been done

(all reflect moral reasoning, DWORKIN)

Liberalism

Political and moral philosophy that emphasizes individual rights, liberty, equal opportunity, and protection of individual rights. Consent of governed, rule of law. Key in shaping understanding of law

Lon Fuller

Valued liberalism and believed we should be ruled by laws and not by individuals, as they guide us in our action. Without principles, law becomes hard to follow.

Fullers Rule of Law

Must be

• General (applicable to everyone, specific and there must be rules in place and can’t be made off cuff or for specific situations)

• public

• future oriented

• understandable

• cconsistent

• Realistic

• stable 

• congruent

Evaluates the CONTENT of LAW

Why is the Rule of Law important?

Acts as a moral good (FOR BOTH FULLER AND HAYEK)

Applicable to all, as you can’t ask a single individual to follow law

Reflects a baseline morality

Morality of Aspiration

Based on excellence, trying to realize ones true potential and power. Failure to realize would not be wrong, but a failure to actualize potential. Law cannot compel one to fulfill this

Morality of Duty

Lays down basic rules that society depends on to function. Condemns for failling to respect basic requirements of living in a society. Failing to fulfill is doing wrong and law can compel one to do this. Something that you HAVE to do

Dworkin

Believes there are two main versions of the rule of law

• Rule book: power of state should only be exercised in accordance with public and available rules to all

• All must adhere to these rules

• Rights conception: citizens have moral rights and duties related to one another and political rights against the state, rights should be part of positive law

Does not agree with Harts view of positivism, as it can’t address questions beyond legal system. Positivism can’t account for legal principles. (Fuller, Hayek, Roz agree)

Ideology of Law

• Assumptions about the nature of social relationships

• Assumptions about proper relationship between law, politics, and morality

• Assumptions about thereness of law

JUDITH SHKLAR

Judith Shklar

Made ideology of law, likely liberalist

Hayek

stresses the importance of generality and formality in the rule of law. if you make moral law, it’s problematic as it will either help or hurt another, and laws should virtually be neutral. it is what is just and fair, you can’t know beforehand whether or not law will hurt or harm. Formal rules are established, written rules while general rules are followed by all but not written. Marks boundary between arbitrary and free govt. Agrees with Fuller

Raz

Government by law and not by men. Contrasted to arbitrary power, value ability to choose lifystyle, to fix long term goals and direct ourselves towards them

Raz Rule of Law Principles

• Open, clear, prospective

• stable

• guided by open, stable, clear, general rules

• independent judiciary: make decisions only by law

• Natural justice principles: Open and fair hearings, no bias

• Judicial review: Government actions are subject to review acts and authority

• accessible courts

• discretion of crime preventing agency cannot subvert law: deciding something is criminal cannot subvert the law

1-3, conform to standards, 4-8 prevent distorted enforcement

Rule of Law limits

• Is not itself morally virtuous

• Is negative (conforming does not cause good, evil avoided could be caused by law)

• Necessary but not sufficient for law to serve good purpose

• Political ideal which may be present to greater or lesser degree

• Tool

Rule of Law: Dworkin, Hayek, Raz, Fuller

Fuller and Hayek: Rule of law is essence of law, because it governs the type of laws that can be made

Raz: The rule of law is important, but it’s not the only thing that matters

Dworkin: The rule of law CAN be the essence of law, because it can reflect justice, but doesn’t have to be