PHIL of Law

Valid Rules

Valid Rules

Exhaust the law, which then judicial discretion is need (discretion of judges).

Model of rules

• There are no legal obligations that are not connected to the law

• Sometimes rules can be accepted as binding

The rule of recognition

Rests only on acceptance.

When is discretion advised

When a case doesn’t necessarily fall under a law due to vagueness.

Hard cases equal to:

Judge discretion. This can be problematic because if discretion has no restraints then judge can make their own laws.

Positivism fails when:

Juges are bound to use principles when making decisions.

Principles

• Apply in cases, but can be outweighed by other situations. Though, even when outweighed they still apply.

• Principles are used in hard cases, though they are not rules bound

Rules

The standard for behavior. They apply in an all-or-nothing manner. (Ex: Violate the law or don’t)

Distinctions between principles and rules:

• For a principle, nothing automatically follows if it is not met.

• Principles are reasons to argue in one direction

• Rules can’t contradict one another

• Rules have always have consequences and have conditional form

When a judge uses principles what occurs?

Since principles aren’t binding, when judges apply principles they’re using them as rules they don’t necessarily have to follow. Ex: making it a rule to go to the movies on Saturday, yet if you don’t go you’re not breaking a rule.

What does discretion involve:

Using your best judgment when the rules don’t apply anymore. It also comes into different forms.

Judge respond to

Social rules, though social rules aren’t a part of the law.

The practice conditions of acceptance (impose duties):

• Each person obeys the rule

• The person cites the rules as justification for behavior

• People criticize those who don’t follow the rules

Social rules

Capture the existing duties, which causes judges to oblige and follow those social rules.

Weak social theory is based on:

Morality

The duties imposed on judges:

Are not gonna come from social rules, but by morality, the judge is bound.

Conventional morality:

Can’t settle hard cases.

What can settle hard case:

Concurrent morality, due to it it saying that judges have duties to enforce political rights. They have the practices due to their duties.

Moral rights:

Independent of the legal structures them.

Rights thesis:

The thesis that the judicial decisions enforce existing political rights, suggests an explanation that is more successful on both counts. It ensures that regardless if were able to figure out, there is an answer.

Policies are:

• Instrumental programs, which will give the goal

• Can come and go. Think of them as tools

Courts are:

More based on principles than policies.

When judges are at discretion:

they should be as conservative as possible (unoriginal) when dealing with policies. They shouldn’t go beyond what the legislator’s policies are to settle the case.

A judge’s decision would be trying to converge with current law on top of trying to:

• Anchor it to history

• Justify their decision with some political responsibility or political rights.

Goal in legal terms

individuated political aim, that is, a state of affairs whose specification does not in this way call for any particular opportunity or resource or liberty for particular individuals. Policies are designed to promote goals.

Political right

An individuated political aim.

Right are:

Not absolute. There are exception. Ex: Freedom of speech - you can threaten someone or slander.

Abstract rights

• Don’t tell you what to do with individual rights in a case

• Provide arguments for concrete rights

Concrete rights

• Articulated rights that go on the scale

• A general political aim that is more precisely defined so as to express more definitely the weight they have against

Institutional rights

Judges are supposed to rule based on concrete rights, not abstract rights. These concrete rights must be institutional and not background rights.

Austin’s Theory:

• The law is a command issued by a sovereign authority

• The laws are habitually obeyed

• Threats of sanction

Hart’s outlook on Austin’s theory

• Rule for all

• Have laws not backed by threat. With this comes the power of the individual, which can have the gov respect a citizen’s wishes

• No plausible entity that can stand in for a sovereign

• Law can’t be understood in terms of rules and obedience

Obligations entails:

They exist, and they also can still stand without the fear of something bad occurring. It’s not about the power of a person being upset about you not complying. Technically, it’s like a promise. You accept the binding force of your own words.

Laws are bound to follow:

An internal character that has a person accept the rules that the law brings as their own.

Primary rules are:

Based on cases where we rule something out or vice versa.

Secondary rules are:

More formal, less conditional-based, and more based on principles.

Limitations of primary rules:

• Uncertainty: about what the laws/ what the rules are. ((Secondary rules that comes in and fixes this defect when brought in) Rule of recognition)

• Static-ness: the laws can only change very slowly. ((Secondary rules that comes in and fixes this defect when brought in) Rules of change)

• Inefficiency: in determining if rules were violated. ((Secondary rules that come in and fixes this defect when brought in) Rule of adjudication)

When do secondary rules come in:

Before there were secondary rules, they were social practices accepted as a norm. It isn’t until secondary rules come in to recognize these practices and make them rules.

Laws are connected to:

morality because it’s connected to primary rules. Without any enforcement, the primary rules would be the society’s morality, until they become actual rules with the help of secondary rules.

The scope of justice involves:

the distribution of resources (taxes, welfare) and compensation (criminal law)

Laws can be:

• unjust, yet applied justly. Ex: Jim Crow laws

• Laws may be morally bad, but not unjust

Similarities of moral obligation and legal obligation:

• Both need compliance

• Binding on everyone independent of someone’s desires or goals

• Comply clearly in regular situations in life

• Attend to the needs of people in groups

Distinctions of laws and morality:

• Morality requires an internal point of view

• Legality only requires the external point of view. (laws only need external

  requirements)

• Laws are only followed in fear of consequences (good for the law not so much for

  morality)

Power and authority:

There are distinctions between moral ought and legal ought.

Legal realism:

Supposed to be descriptive theory on how judges ought to be.

Rule of law:

Can be interpreted in various ways, which of course can be a problem because it can allow anyone to say they're following the rule of law but leave things like human rights, and etc out.

Normative laws

Thick and broad. (Good laws have to be built in)

Descriptive laws

Thin and narrow. (Good laws are necessarily placed within system)

Exceptions of laws:

1. Laws are going forward not going back

2. Generally possible for people to comply with

3. Laws have to be communicated in advance to follow them

4. Laws have to be reasonably clear (easy for people to comply with)

5. Laws have to be consistent with each other

6. Laws have to remain stable over time

General law:

We get out of a legislator (Written in the books)

Particular law:

How we apply laws to particular cases. (How we approach cases seeing general laws in mind)

Equity

Aims at justice (judgement reprends a form of guided discretion in which decision making is both particular and constrained by authoritative standards of justice)

Mercy

Exercising forbearance

What happens if mercy and equity didn't exist:

We would be stuck. Even if these two terms cause issues when dealing with cases that fall in gray areas.

The meaning of law according to Scalia

The intention of the legislature who created it.

Scalia believes:

• Unexpressed legislative intent is tyranny

• Judges have no authority to make new laws. They are bound by the words of law that differ from originalism.

Feminist legal theory: Some laws do:

Some law was intentionally subordinating women. Though some think that the law was written in a neutral sense.

Overt sexism:

Has the intention of subordinating women.

Institutional sexism:

Laws in the past that had nothing to with women, yet women had to abide by them.

Laws can be written with nothing to do with sexism, yet have sexist impacts.

Double-bind

Dilemma in which all options have some cost associated with them.

Double binds in court entails from a women and court gaze:

• Woman’s gaze: Women have to choose whether or not they’re gonna be sucked into the mainstream, even though it's the reason for oppression, or have to use the rules of the system oppressing you to change the rules of the system oppressing you. Taking on this side though, is both hard and difficult.

• Court gaze: if the court recognizes and affirms the stereotypes then they have to

  acknowledge the stereotypes attached to the stereotype, they perpetuate the

  problem (If they deny it, you ignore the disadvantage cost the victim either

  way. So, no matter what the woman winds up getting screwed.

The problem of sexism in the legal sense:

Won’t be resolved if we continue to look at the people from the inside as being men as something neutral and discriminating against the people on the outside as being women. (The status quo is not good, but an exercise of male power then one can see that it is not so neutral or justified)

Characterizes women as different, as if the man is a norm and being a female is

not.