Jurisprudence Flashcards
What is Law
Rules Maintains order Justice Common good Limits government power Gives us power Sets standard of behaviour Changes over time
Jurisprudential theory on Respect of Law
You are under the power of law but not under an obligation to obey it
HLA Hart’s Views
- Looked at the law as a form of command
- The idea of command fails to capture the internal aspect of rules
- The rule has a normative aspect. Gives standards of behaviour
- If you violate it, you are subject to criticism, including self-criticism
- It gives you a reason for acting the way you do
JL Austin’s View
- Law is like a command accompanied by a habit of obedience
* When there is a habit within a society, it becomes convergent behaviours combined with normative obligation
HLA Hart’s Rules
Rules of recognition
Rules of change
Rules of adjudication
• If there is doubt about primary rules, there is no central mechanism for resolving them
• On top of primary rules, we need 3 secondary rules
• Primary rules is directed to us and secondary rules is directed to officials in the system
Judges Role (Hart)
- Apply the law and adjudicate disputes about its meaning
- Respect the law and make something of it in making sense of it
- Specify the law when it contains vague terms
- Brings moral reasoning into the heart of adjudication
- They act as a corrective
Why do the Courts not violate the SoP?
- They have no choice over what case they decide
- Only small/incremental changes are made to the law
- Their law-making powers is partial within defined contraints
- Just evaluate laws for compliance with certain legal norms
- The décisions are janus-faced, look back and forward
- One set of values might outweigh the other
Hart’s Analogies
Hat into church
No vehicle in the park
Chess player
The scorer
Hat into church
Sign saying “Men’s hats must be taken off before entering church”
A father could just say “son, do what I do”
Legislature vs precedent
Which part of the precedent to follow - left hand or right hand
• Common law system
No vehicles in the park
Rule: “No vehicles in the park”
A kid comes with a radio controlled toy car
Is this vehicles?
Knowing the purpose of the law
Chess players
Most often, when people see law as a binding rule that can’t be changed,
When we move our chess pierce according to the rules,
Our rule-complying behaviour is often a direct response to the situation, unmediated by calculation in terms of rules
Some precedent actions and other follow it
The Scorer
- You need a scorer or both sides will disagree with the scoring
- Some finality in decision-making
- If the scorer is biased l, we are afraid of the scorer doing what he wants
- The scorer does not consider himself to be making certain rules. He thinks there is a rule as to why counts as a goal and what it means to score them, the internal attitude
- Judges know everyone else knows what the rules are
Pragmatic Conflict by Raz
- Changing one part of the law might conflict with another part of the law
- If you do nothing, the bad law remains
- If you completely reform the law, the judges have more power
- Pragmatic conflict (Raz)
How to balance the Two Social Needs
Delegation to a more specific regulator
Generality - there should be reasons for law
Counter-majoritarian difficulty
Alexander Bickel
Declaring an act unconstitutional thwarts the will of the representatives of the actual people, it exercises control against the prevailing majority
• Courts have absolute discretion to check constitutionality
• It is effectively final when they strike down constitutionality
• Referendums in the past have struck down decisions of the SC such as abortion
Dworkin’s Distinction between Principle and Policy
- The courts are doing something distinct from the legislature and judges are not overtaking the role of the legislature
- Principle: A requirement of justice and fairness of some dimension of morality - identify rights - judicial reasoning
- Policy: A kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community - identify social welfare or public interest - legislative reasoning
Balance between majority and minority
Dworkin
- Elected politicians side with the majority, in hopes of getting re-elected. They are responsive to popular view
- Courts have to consider the consequences of their judgements and consider general welfare of public interest
- The floodgates argument is based on an argument collective of the community
Dworkin’s Steps
- Equality as set out in the Constitution can be interpreted in different ways which is the responsibility of the judges
- The Courts have to respect the Constitution and previous precedents
- Precedent is like a chain novel. Different authors - one story
- Past precedents is the heart of judicial craft. Justifiable is about morality
Dworkin’s Conception of Democracy
- Day-to-day decisions must be by officials chosen in popular elections
- Democracy means government subject to democratic conditions
- Constitutional review supports democracy
- Majority have a good candidate to express whether legislation treats individuals with respect
- The courts uphold the rights of individuals more than legislature
- Counter-majoritarian but anti-democratic
Abraham Lincoln
Democracy is government by the people, for the people and of the people
Waldron
- If a process is non-democratic, it hinders the participation of ordinary citizens
- A belief in rights doesn’t mean we should enshrine them in a formal bill of rights - verbal rigidity, entrenchment
- We should be able to talk openly about the rigid terms of the Constitution
- The terms of the Constitution are enacted at own point in time, periodically amended by referendum, casting rights in stone
- Argues for the development of rights
- Participation - protect, debate, discuss - equal terms of deep concern
What do Dworkin and Waldron have in Common
They are deeply concerned with the value of responsibility
There are risks that democratic decisions will violate minority rights?
- Waldron says there is a dignity in participation and an element of disgrace in excluding some in decision-making
- Equality of input will not always produce good outcomes but the value of participation transcends those outcomes
- It is the right of rights - decisions affect them, all have different views of rights
Function of the legislature in a free society
To create and maintain the conditions which will uphold the dignity of man as an individual under the rule of law
Rule of Law
- Law binds people and government
- Associated with international law
- The law applies equally to everyone
- Freedom, Liberty, rights
Lon Fuller
Laws should be:
General Public Prospective Clear Compatible with one another Possible to obey Stable Consistently applied • Rights needs the rule of law but the rule of law does not need rights
Joseph Raz
Rule of law
Laws should be:
• Prospective, open, clear
• Relatively stable
• The law makers should be guided by clear rules
• Independence of judiciary must be guaranteed
• Principles of natural justice must be observed
• The courts should have review powers
• Courts should be accessible
• Prime-preventing agencies should not be able to pervert the law
- Respects human dignity, autonomy. Plan futur
Friedrich Kayek
The rule of law means the government is bound by rules
The rules make it possible to foresee with fair certainty how the authors will use its coercive power in certain circumstances
Raz’s Analogy
- The rule of law and instruments such as a knife
- In order to be good, it has to be sharp but you can use it for good or bad purposes
- Capable of guiding human behaviour
John Finnis
Lex injusta non est les
• Rules are prospective, not retroactive
• Are not possible to comply with
• Its rules are promulgated (enacted)
• Clear
• Coherent with one another - for judiciary, reconciling conflicting law
• Sufficiently stable to allow people to be guided by knowledge of rules
What is the key component for Common Good??
Respect of equal rights for all which requires justice and fairness
Dworkin’s Ways of Looking at the Rule of Law
- Rule Book of Conception - agrees that the law must bind government
- Rights Conception - citizens have moral rights and duties in respect to one another. These rights must be recognised by the laws to be enforced
Lord Bingham
The Rule of Law
- Law must be accessible, intelligible, clear, predictable
- Law should apply equally to all
- Must afford adequate protection of fundamental rights
- State must provide a way of resolving disputes which the parties cannot resolve themselves
- The adjudicative procedures of the state must be faut
Montesquieu on Liberty
- In order to have Liberty, the govt must be such that one citizen cannot fear another
- When executive and legislative powers are united in a single body, no liberty
- If one makes tyrannical laws, the other can execute tyrannically
- If judiciary and executive were joined, judges have the force of an oppressor
Montesquieu on the Separation of Powers
- The SoP emerged in canonical literature in Constitutional Law
- Montesquieu thought the SoP was vital to Liberty
- He made the idea popular
- Some say the SoP is to curb abusive power
- Other say it is to match tasks to those we’ll place to carry them out to ensure efficiency
Maurice Ville
- The govt should be divided into 3 branches with corresponding functions
- They should be confined to their function
- The individuals in each branch must be kept separate and distinct
Arguments against the SoP
- The executive can control the legislature and steer it through
- Judiciary sometimes act as legislative bodies through precedent and stare decisis
- Delegated legislation makes laws as well though the executive
- The courts specifying vague terms is a form of interdependence
Madison on the SoP
- First task is to make a division of govt into distinct and separate departments
- Each department must have a will of its own
- There must be practical security for each against the invasion of the others
- Not sufficient to mark with precision, the boundaries of these departments, and to trust the parchment barriers
- Good systems are not defined by a unitary power
How can be have a satisfying SoP
- The obligations of good government must fall on the state as a whole, the people who live there and the government as a whole
- The executive has the power of initiation and the drive
- The Court is independent
- The legislature is the deliberating body
- The opposition provides criticism to the government but remains loyal to the system as a whole
O’Byrne J in Buckley v Attorney General [1950]
The delicate balance between various institutions […] is maintained to a large degree by the mutual respect which each institution has for the other
Hardiman J
Good fences make good neighbours
Democracy
- Demos (people/population) and Cratos (strength/power)
- Power of the people
- Direct democracy as Waldron outlined in “participation” is harder
- Représentative Democracy - sorry second best?
