POLS*2350 "Legal Reasoning"

Coke v. King James I

• Beginning of the 17th century

• Between Chief Justice Coke and King James I

• Land dispute 

Schmitt’s Standard

Is the law independent? Is it autonomous? Does it even exist?

Basic Principle of Legitimacy

“a judicial decision is correct today when it can be assumed that another judge would have decided in the same way”

Plato on the Rule of Law

“like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules”

What is the Rule of Law?

“the overarching normative relationship among legal subjects and the state”

Waldron’s “Thoughtfulness” is enhanced in 3 ways:

1. rules & standards

2. formal processes

3. shared premises

What is Arbitrariness?

• “indifference about the procedures chosen to reach an outcome”

• “Can also suggest that a decision-maker possesses unconstrained discretionary powers”

Roncarelli v. Duplessis (1959)

landmark case always cited for the Rule of Law in Canada

R. v. Imperial Tobacco (2005; 2011)

• A ‘thin’ or ‘procedural’ commitment to the Rule of Law

• The government of B.C. decided to pass a law, the government alone has the ability to a company against a tobacco related wrong

What is the one way that Canada’s legal system does not adhere to Fuller’s Morality of Law?

it’s that laws can be proactive, which is unfair

Roncarelli v. Duplessis is an important example of arbitrary power because?

Several examples of arbitrary power: “the existence of unlimited discretionary powers in an agency; a decision-maker acting in bad faith; inappropriate responsiveness to an individual situation where important interests are at stake; consideration of irrelevant factors in the decision; disregard of the purpose of a statute; and dictation of the decision by an external and unauthorized person” - all violations of the rule of law

Artificial Reason

navigating the levels of abstraction to find agreement, such as through induction and deduction

Legal reason’s heart

analogies

Epstein on analogies

“analogies make good rules better and bad rules worse”

Dworkin’s “Herculean” Judge

• “Best fit” thinking 

• Judges can see all of law at once and how their case fits into those laws

• Making law coherent 

Stare decisis

“to stand by decided matters”

Application of stare decisis requires

identifying the ratio decidendi and distinguishing it from the obiter dicta

Ratio decidendi

“reason for the decision”

Obiter dicta

“things said in passing”

Brandeis

“in most matters, it is more important that the questions be settled than that it be decided right”

A Rule of Law

Is the concept that all individuals and institutions are accountable to the law, which is fairly applied and enforced

THE Rule of Law

Is one of the ideals in our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance 

Access to law is important in 2 ways

1. Law should be epistemically accessible: it should be a body of norms created as public knowledge so that people can know it

2. Legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes and protect them against abuses of power

3 Aspects of Modern Law that are philosophically neglected

1. standards

2. procedures

3. precedents

Rules vs. Standards

A standard is a norm that requires some evaluative judgment of the person who applies it, whereas a rule is a norm presented as the end product of evaluative judgements already made by the lawmaker