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
