Exam 2

Question 1

Principle of Neutrality

Answer 1

if there are no value choices expressed in the constitution that would conflict with the laws and orders at issue then DON’T strike down

• preserves democratic legitimacy

Question 2

Principle of Neutrality flip side

Answer 2

if the value choices in the constitution DO conflict with the value choices in the laws/orders then the supreme court MUST strike down

Question 3

Non neutrality

Answer 3

if value choices expressed in the laws/orders at issue are plainly morally wrong then the supreme court MUST strike down those laws

Question 4

When are neutrality and non neutrality the same

Answer 4

when the value choices in constitution conflict with the ones in the law/orders

Question 5

Bork - democratic legitimacy

Answer 5

if judges impose their own value choices on the majority then there is no democratic legitimacy

• neutral principle of application upholds democratic legitimacy

Question 6

What would Noonan and McKinnon say about abortion

Answer 6

Noonan: non neutrality: inherently wrong value choices in permissible abortion laws, Noonan believes the language of personhood applies to fetuses, abortion deprives fetus of right to life

McKinnon: to make abortion illegal would be unconstitutional: it would fly in the face of the equal protection caluse

Question 7

Bork v Noonan v McKinnon

Answer 7

Bork - neutralist believes it is a mistake for judges to use their own value theories when deciding whether or not to strike down a law

Noonan and Mckinnon: non-neutralist: believe it is incumbent for a judge to question morality and the relationship with law

Noonan: also NLT

Question 8

Natural Law Theory vs Positivist

Answer 8

Natural Law Theory: laws and morality inherently tied together

Positivism: opposed to NLT, valid laws should not include consideration of morality

Question 9

NLT

Answer 9

NLT say the function of law is to implement the rules/norms of morality

Challenge to NLT: could there be laws that are valid, authoritative laws that conflict with rules/norms of morality?

NLT says: NO. It would not be a valid law, if law goes against rules of morality it is not a just law

Question 10

Is there a distinction between “purely legal” validity and “focal, moral” validity?

Answer 10

• there could be laws that are valid according to purely legla standpoints but are invalid in focal/moral validity
• binding force comes from moral validity, they can be legally binding but if they go against morals, it is not

Question 11

Aquinas

Answer 11

• believes that you know on some deep level that certain things are wrong ~ not historally or community sensitive
• NLT
• believes laws are rules we are bound to follow - real life = obligations to follow it

Question 12

According to NLT a law must be

Answer 12

1. known to the relevant political community
2. rationally ordered towards bringing about the common good - the general wellbeing of that community

Question 13

positive (temporal) law vs natural (eternal) law

Answer 13

positive / temporal: created by humans and their will

natural / eternal: created by nature

• positive law: particular, community dependent, incomplete
• natural law: universal, community independent, complete

Question 14

What is it about a law that makes it valid? that it is binding on us? (Austin)

Answer 14

Austin puts forth positivism
Austin says a law is binding if the person issuing the law can harm those who don’t follow it

• many believe this is flawed, confuses legitimacy with authoritarianism

Question 15

Hart: rules of obligation and secondary rules

Answer 15

1. Rules of obligation:
   - positive (do ____), negative (don’t ____)

• these are primary rules of obligation where Hart says a small society is necessary

2. Secondary rules: depend on primary rules, but primary rules can exist in an infancy stage before needing secondary

Question 16

Hart: (Secondary Rules)

Answer 16

Hart has 3 problems with complex societies with primary rules

1. Uncertainty: uncertain what the rules are
2. Inflexibility: unclear how to adjust these rules
3. Inefficiency: unclear whether and when the rules have been violated

Question 17

Hart (Secondary Rules) pt 2

Answer 17

• to solve the issues of uncertainty, inflexibility, and inefficiency Hart mentions secondary rules

1. Rules of Recognition: tells us what the rules are
2. Rules of Change: tell us how to change the rules
3. Rules of Adjudication: tell us when rules are violated

~ Uncertainty -> Rules of Recognition

• Inflexibility -> Rules of Change
• Inefficiency -> Rules of Adjudication

Question 18

Hart

Answer 18

• answers “what is law” by asking what a legal system is
• answers “what makes a law valid” with - it satisfies all criteria provided by the ultimate rule of recognition
• Hart is positivist

Question 19

Bork, Noonan, McKinnon, Dworkin, Austin, Hart, Aquinas and Finas, Brest, Llewellyn, Dworkin

Answer 19

Bork: neutralist

Noonan: NLT

McKinnon: non neutralist

Brest: non neutralist

Dworkin: non neutralist

Austin: positivist

Hart: positivist

Aquinas and Finas: NLT

Llewellyn: Realist

Question 20

Hart - 2 points of view on ultimate rules of recognition

Answer 20

rules of recognition: tell us what the rules are

Internal: appraising or evaluating behavior on the basis of a rule from a participants perspective

external: describing or predicting behavior from an observers perspective, as in someone not in that legal system

• asking if we accept a law as valid is role of internal recognition,

but if we’re asking if a system/law has validity that is external

Question 21

3 questions we might ask about any rule that acts as law

Answer 21

Q: is it valid (main question)
Q1: is it good?
Q2: is it binding?

Question 22

There are also meta questions within those 3 questions

Answer 22

1. is Q distinct from Q1?
   Is validity of.a law distinct from goodness?

• NLT say no, the validity of a law comes from whether or not it is good
• Positivists (Hart and Austin): say yes; power of authority trumps goodness

2. Is Q distinct from Q2?
   Is validity distinct from whether or not it’s binding?

• NLT say no, a law must be binding to be valid
• Austin says no, a law is valid insofar as power to punish is binds

~ NLT say all 3 questions are related, Austin says the question of whether or not it is good doesn’t matter

Question 23

Hart: Q’s and External and Internal recognition

Answer 23

Internal: Q1 and Q2 arise: is it good/ is it binding

External: Q1 and Q2 don’t arise, only Q: if a law is valid

• From Hart’s external standpoint: is Q distinct from Q2? is validity distinct from bindingness?

Yes. In so far as from the external perspective we only care about Q, the validity, not the ability to bind

Question 24

Realism and Llewellyn

Answer 24

says all this debate over what law is, is useless to lawyers

• Lewellyn holds this thought, saying rules don’t matter so much as what a judge will do
• Lewellyn answers “what is law” with the law is what the judges say it is when they settle disputes

Question 25

Hart's argument against realism

Answer 25

realism: rules don't matter, only what the judges will do. Law is what the judges say it is when they settle disputes Hart: Judges settle disputes, yes, but does so by applying the law, not deciding it - the law exists prior to and thus is distinct from any act of applying it

Question 26

When judges are considering whether to strike down a given law, should they consider whether the law is morally good?

Answer 26

Bork: no Noonan and McKinnon: yes Dworkin: yes

Question 27

Should judges consider whether law is legally valid?

Answer 27

under NLT moral goodness and legal validity cannot be separate

Question 28

Bork: Originalism

Answer 28

Bork believes judges should consider ONLY how the language of the law would have been understood at the time of its passage - if judges did anything other than this, they'd be acting as a politician not a legal authority - violation of judges role to use moral consideration in the interpretation of the law

Question 29

Objections to Bork's Originalism (Brest)

Answer 29

1. Epistemological: how could we possibly know how the language of the law would have been interpreted at the time of passage? It is impossible to know enough about the original understanding of any law to settle hard cases 2. Substantial: part of what is to be considered the original understanding of a law is to consider what would be the morally best application of it

Question 30

Dworkin's dimensions:

Answer 30

Dimension of substance: moral application Dimension of fit: formal dimension, looks at language and historical context Threshold of fit: gap in the language / historical context

Question 31

Brest - equal protection of the laws

Answer 31

emerges from the threshold of fit, at some point there will be a gap in the language or historical context - example: equal protection of the laws: black equality and racial (any kind of discrimination)

Question 32

Dworkin and Brest

Answer 32

believe even if we talk about equal protection in the constitution, the dimension of fit isn't enough, it will need to include a discussion of morals

Question 33

Skeptical Attack on Dworkin's view

Answer 33

1. if Dworkin's view is correct then there is no single best interpretation of the law a. many best interpretation, none better than any others b. if you admit there is a dimension of substance, then you'll have moral disagreements on interpretations (personhood and abortion) 2. If there is no single best interpretation, then there is no rational basis for preferring one interpretation over another 3. There is some rational basis for preferring one interpretation over another 4. Thus, Dworkin's view is wrong

Question 34

Dworkin's response to the Skeptical Attack

Answer 34

Dworkin rejects premise 2, that if there is no single best interpretation then there's no rational for preferring one over another - we decide which is best through judges morality and the judges view on political morality

Question 35

Bork v Brest

Answer 35

Bork and Brest care about scope - how broadly does the law apply? Example: Bork believes equal protection principle applies solely to black people, meant for black v white, not everyone Bork believes original meaning specifies what level of generality is appropriate Brest: believes original text doesn't give you the scope of application

Question 36

Realism v Positivism

Answer 36

Realists: only things that matter is what happened and what is going to happen - only care about if murder is actually happening, how likely is legislation to stop it? How likely is punishment to stop it?