Midterm Flashcards
Normative
Claims/questions about what ought to be the case. Typically settled by authority and/or reason. Characteristic of theology, philosophy, ordinary socialization.
Humes law: can’t validly derive a normative claim from descriptive premises
Law, morality, etiquette, and religion (at least in the Abrahamic religions) are all normative (prescriptive) domains—they involve “thou shalt” and “thou shalt not” precepts.
Descriptive
claims/questions about what is the case. Typically settled (at least supposedly) by empirical data. The kind of questions/claims typical of science
o You can definitely settle a descriptive question in principle.
Distinguishing Law & Morality (Descriptive)
On either view, it is clear that morality and (human-made) law are not necessarily identical (at least not descriptively)
Coordination Problems: Many actions that are governed by law (e.g., in Canada, driving on the right side of the road rather than the left) are presumably matters of indifference from a moral point of view
(In this respect, coordination problems are analogous to some matters of etiquette)
Laws that are not moral satisfy coordination problems
What you choose doesn’t matter, the fact that you chose is what matters.
Laws that are in place to solve coordination problems are not moral laws but laws of moral indifference.
Ex, we could have chosen different colors for stop lights (red, yellow, green).
Law and morality on one hand can’t be identical because there are laws that are concerned with moral indifference.
Wedding rings solve a coordination problem.
Immoral Laws: On the other hand, many practices have been inscribed in law, that are, if anything is, clearly immoral.
E.g. slavery, forced sterilization of the disabled, private recreational drug use or sexual behaviour.
Conflicting Moral and Legal Duties: Similarly, there are often cases when legal and moral duties seem to conflict.
Legal Positivism
is the view that the existence and content of law depends on social facts and not on its moral or practical or political merits.
Bentham on Legal positivism (Utilitarian)
Jeremy Bentham (1748-1832): A main proponent of both LP and utilitarian (U) moral theory. U (in a nutshell):
- Actions are morally right or wrong by virtue of the aggregate consequences that they give rise to. (consequentialism)
- Consequences are to be evaluated in terms of utility—i.e., their intrinsic value (for Bentham, pleasure and pain)
- Everyone’s utility counts and counts equally (“each is to count for one, none for more than one”)
Austin on legal positivism (Utilitarian)
John Austin (1790-1859): “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry” The Province of Jurisprudence Determined (1832).
For Austin, positive law (of the sort that jurisprudence (theory/philosophy of law) concerns itself with):
A general (as opposed to specific or individual) command, backed up with sanctions if not compiled with.
Issued by a sovereign, who/which, by definition, receives habitual obedience from most of the population, but who does not habitually obey any other (earthly) person or institution. (“Uncommanded commanders,” 31)
General elements of legal positivism
- Separability: Law and morality are conceptually distinct.
- Pedigree Thesis: Legal validity is ultimately a function of certain kinds of publicly ascertainable social facts, e.g., about which persons/institutions have the power to make, amend, or adjudicate law.
It counts as a valid law depending on how it came about, has to publicly ascertainable facts. Doesn’t have to be ascertainable by the public at large, but by a member of the public.
- Conventionality: Legal validity can ultimately be explained in terms of criteria that are authoritative by virtue of social convention (i.e., social facts about what people take to be authoritative)
What makes it a natural law is that people accept it as authoritative (has to do with social facts).
Hart on legal positivism
Hart’s view of legal positivism is that law and morality are distinct modes of social ordering.
For Utilitarians like Bentham and Austin, this is where a view (like NL) that links law and morality is apt to create two symmetrical sorts of danger…
They want you to obey the law because it promotes Utilitarianism. They want you to be obeyed punctually because if a law does not maximize happiness criticize it until it does, not all laws are moral. Criticize the law in the hope of reform, criticize the law in the hope for amendment.
Hart says there’s two dangers of morality and law heavily coinciding—makes it heavily immune from moral criticism and makes people reject it if they don’t think its moral
Legal realism
In the broadest terms, LR is the view that “what is the law?” and “how does the law function?”, etc., are fundamentally empirical questions.
Accordingly, LR (of all species) holds that law can and should be investigated using the (allegedly) value-free methods characteristic of the natural sciences
In that respect, LR is clearly opposed to NL and in accord with the LP separability thesis.
But LR also identifies in NL and LP (in general) a shared object of criticism…
Legal Formalism
LF (descriptive sense) is the idea that the determination of what is/is not the law (the determination of standards of legal validity) is essentially a matter of inference from principles.
LF (normative sense) is the idea that judges should adjudicate by (inferentially) applying established legal principles to the specific cases in front of them.
Compare: The claim/presumption in common law systems that judges are not making law but finding it
Formalism
….i.e., judges may maintain that, in adjudicating cases, they are deductively applying uncontroversial legal principles to the facts of a particular case.
(I.e., ‘rules of law’ are like [true] premises in a deductive argument which, together with [true] factual premises about the facts of the case determine the conclusion/judgement).
Note: The formalist perspective implies (or pretends) that the law is essentially clear, consistent, and complete.
- PQ
- P_____
- Therefore, Q
Prediction theory
A precursor of American LR: SCOTUS Justice Oliver Wendell Holmes (1897):
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”
The law is about predictions about what the courts will do in fact
I.e., the law is simply what is decided by the courts.
There is a problem because there is not a separation of powers from a jurisprudence perspective. Judges could be corrupted. There’s no such thing as rules governing the behaviours of the legal system.
A “bad man… does not care two straws” about morality or legal principles. He is interested simply in the prediction—‘if I do this, what will the likely consequences be?’ (A pragmatist view)
Statutory Lawlessness
Radbruch: Being properly promulgated as law (LP: “pedigree”; Hart: being included under a ‘rule of recognition’) is a fundamental importance but cannot in and of itself guarantee legal validity.
Hitler, e.g., gained power in an ostensibly legal manner and the Nazi regime promulgated any number of “laws” that were flagrantly unjust and/or immoral.
For the positivist, “a law is a law”—‘statutory lawlessness’ and ‘supra-statutory law’ are both a “contradiction in terms” (127)…
…positivism “claims to have proved the validity of a statute simply by showing that the statute had sufficient power behind it to prevail. But while power may indeed serve as a basis for the ‘must’ of compulsion, it never serves as the basis for the ‘ought’ of obligation or for legal validity” (131, emphasis added)
For Radbruch, certain Nazi laws show that there are supra-statutory conditions against which a law can be tested: extreme injustice is no law—even appropriately enacted and socially effective norms lose their legal validity when they are extremely unjust
The Radbruch Formula
Radbruch: Legal validity must be based “a value inherent in the statute” (132).
Which statutes add up to the legal validity of that statute
Which values are relevant?
- Legal certainty: Any statute is better than no statute
- Purposiveness: Serves the public benefit
- Justice: Protects (especially) equality under the law.
The “Formula”
- “Intolerability”
- “Disavowel”
So in other words:
- A properly promulgated positive statute is a presumptively legally valid, up to the point at which it is (objectively) in ‘intolerable’ conflict with justice. Past that point, the validity of the statute must ‘yield’ to justice.
- But, a statute which has the intention or purpose to betray justice is not law at all. Presumably, this entails knowing subjectively the intentions of legislators…
Radbruch implies that positivism (i.e., positivistic attitudes among lawyers and juries) had in fact been an important enabler of the Nazi regime
It left “both jurists and the people defenseless against just such arbitrary, cruel, and criminal statute”.
The Radbruch formula is intended to provide jurists with “weapons against a recurrence of such an unjust state”.
But, not: Radbruch’s view is a curious form of NL (Dyzenhaus: “positivism with a minus sign”)—legal certainty trumps injustice except where the injustice is ‘intolerable’
Fuller’s Principles of Legality
P1: rules must be expressed in general terms;
P2: Rules must be publicly promulgated;
P3: Rules must be prospective in effect;
P4: Rules must be expressed in understandable terms;
P5: Rules must be consistent with one another;
P6: Rules must not require conduct beyond the powers of the affected parties;
P7: Rules must not be changed so frequently that the subject cannot rely on them;
P8: Rules must be administered in a manner consistent with their wording.
Fuller: These principles of legality are, in effect, existence conditions for a legal system.
We can know these principles because, according to Fuller, we can know the fundamental purposes of law: to subject “human conduct to the governance of rules”. The rule of law attains it authority insofar as it furthers these (moral) purposes.
For Hart, recall, the law draws on morality if moral principles are incorporated into rules of recognition. Conceptually, the authority of the law is like the authority of a rules in a game.
