Illicit Drug Trafficking in Central Asia Presentation by Kairat Osmonaliev PhD in Jurisprudence.
Central Issues in Jurisprudence
-
Upload
lai-andrew -
Category
Documents
-
view
217 -
download
0
Transcript of Central Issues in Jurisprudence
-
8/11/2019 Central Issues in Jurisprudence
1/25
N.E. Simmonds Central Issues in Jurisprudence
Chapter 2Rawls
The original position
o The veil of ignorance represents a set of conditions that it is fair to
impose upon the choice of principles of justiceo Persons in the original position do not know what their own
conception of the good is, they will choose principles that do not
seek to reflect or embody any one particular conception
The basic structure
o Basic structure of a society is the basic framework of institutions
that distributes the benefits and burdens of social life and thereby
fundamentally shapes peoples life prospects
Question of justice is a mirage, not the result of deliberate
design, but the unintended outcome of a huge multiplicity
of human actions BUT, Rawls might reply that society can be thought of as a
system of cooperation of mutual interests, insofar as it
makes life better than living in isolation
Question of whether a good society requires a shared
concept of justice
Any modus vivendi, ungrounded in principles of justice, will
be dependent upon the balance of power between rival
groups, resting on pragmatic compromise rather than deep
principles
Why does Rawls think that utilitarianism fail?
o
Ignores the distinctness of persons Does not adjudicate between different individuals, treating
people as receptacles
o The right and the good
Utilitarianism defines the right in terms of the good
But is the good necessarily right? (For example, the
pleasure of slave owners due to the availability of cheap
slave labour)
The thin theory of the good
o Each of them knows that they have a conception of the good, but
they might have different conceptions of the good from otherpeople
o The theory holds that it is rational for people to want certain
things, whatever else one may want.
But, it is biased in favor of the individualist conceptions of
the good life
BUT legal order of a liberal society cannot claim to be
neutral in terms of allowing everyone an equal opportunity
pursue his or her own conception of the good life
Stepping back through to a higher level of abstraction:
instead of asking what would serve to advance this or that
conception of the good, we ask what would be chosen bypeople who do not know what the good might be
-
8/11/2019 Central Issues in Jurisprudence
2/25
Two principles:
o 1) Each person is entitled to the most extensive system of basic
liberties that is compatible with a similar system for everyone else
o Social and economic inequalities are just only when: (a) they work
to the advantage of the least advantaged people in society, and b)
they are attached to offices and positions that are open to all undercircumstances of fair equality of opportunity
The difference principle
o Part (a) of the second principle of justice requires that inequalities
in the distribution of social primary goods must be justified by
reference to the interests of the least well-off
Because our natural talents and abilities come about in
exactly the same light as social lass and fortune
Talents as resources to be exploited
o Choosing the difference principle
They would base their choice on very conservative andcautious criteria of rational decision from behind the veil of
ignorance
Hence, they would choose the maximin principle
ultimately
Everything depends upon how the social primary goods of
the least advantaged groups are affected
Greater equality
o BUT criticized as unreasonably obsessed with the position of the
least advantaged
o Radical egalitarians see his theory as legitimating inequality in an
unacceptable way The first principle of justice
o 1) Each person is entitled to the most extensive system of basic
liberties that is compatible with a similar system for everyone else
Only time that the limiting of basic liberties can even be
entertained is for the sake of liberty itself
o People will want it because:
They have conceptions of the good, but know that it may
differ from the conceptions held by others, but they do not
know its content
They do not regard themselves as bound to a particularconception of the good all the time . Only when people have
the opportunity to revise their conception fo the good can
they be free
o Criticisms:
How do you measure whether one liberty/freedom is to be
preferred over another?
Or, as HLA Hart asks, why does Rawls not appear to include
sexual freedom, or the freedom to consume drinks or drugs,
in his list of protected liberties?
Seems to depend very much upon the conceptions of
our own of what the good should be Political liberalism
-
8/11/2019 Central Issues in Jurisprudence
3/25
o Communitarians attack Rawls theory of justice for its allegedneglect of the importance of concrete human communities
o In political liberalism, Rawls offers his theory not as a
comprehensive philosophical doctrine, but as a political theorythat can be supported by persons espousing different
philosophical and religious doctrines Similar to utilitarianism, which can be used as a mental
principle of morality, or as an appropriate standard to be
followed in the enactment of legal rules
Such a public conception of justice seeks to abstract from
the differences in moral and religious viewpoint that
inevitably characterize a liberal society
Abstraction in argument is, according to Rawls, a way of
continuing public discussion when shared understandings
of lesser generality have broken down
Rawlsian political liberalism depends upon a division
between the public realm of politics and the private realm
which citizens are free to pursue their own philosophies
and conceptions of the good
However, there are arenas where these private and
public philosophies clash. What then, for this
abstraction?
Chapter 3Nozick
Claims that each of us has a right to self-ownership
o Gives rise to property rights by mixing their labor with unowned
resources
o
Having acquired such ownership, I can transfer the resource toothers who need it. Hence, the justice of a distribution of resources
depends upon the series of transactions by which it came about
o Since much of the wealth is brought into existence by individuals
who have rights, it would be a mistake to see societys wealth assomething to be divided up amongst the whole of society
Rights as an arbitrary starting point
o Why is the right of self-ownership such a fundamental right?
Why not instead a focus on the right to a basic level of
welfare, or a degree of equality?
o
Nozicks response
Rights are to be thought of as:
Goals
o When thought of as a goal, such a right would
not prohibit the intentional killing of one
person, in order to achieve the ultimate goal
Side constraints
o Right not to be intentionally killed means that
constraints have to be adopted
o This is preferred, since we desire not to be
used as instruments by others
-
8/11/2019 Central Issues in Jurisprudence
4/25
Nozicks understanding: Each person is distinct and
no individual has rights in other persons. No trade-
offs are at all permitted in this theory of justice
o Principles of acquisition
Principle of acquisition is grounded in the principle of self-
ownership Difficulties in the argument of mixing labor:
o If I spill my can of tomato juice into the sea, I
have not acquired ownership of the sea, so
why should mixing ones labor be anydifferent?
o Lockes provisio that there must be enoughand as good left over for others before I can
acquire ownership of an unowned resource
However, if I hunt the only deer left in
the woods, then I cannot acquireownership because there is not
enough and as good for others
If, however, I cannot acquire the
penultimate deer, I cannot acquire any
deer at all, for the argument will zipback to encompass any single deer.(Sorites heap)
Adopts a weakened version of
the Lockean provisio.
Reconstrues the provisio to
require that my acquisitionmust not make others worse off
than they would have been in a
state of nature devoid of any
property rights at all.
o But it is argued that this
is mistaken as there
would be no defence to
the tomato juice
argument just presented
o
The limitation onLockes basis for
treating the mixing of
labour as the acquisition
of resource is not an
extraneous limitation,
but is instead integral to
it.
o Sits oddly with the idea
of property rights over
natural resources that
exist even before weextract it. Why not
-
8/11/2019 Central Issues in Jurisprudence
5/25
reward people for their
labour ONLY instead.
o Same can be said of
natural talents that
exist, not as a result of
an individuals labour Pale self-ownership
o Look through this again
Patterned distribution and historical entitlement
o Liberty and equality are constantly at odds with one another
Any attempt to maintain an equal or near equal distribution
of resources will demand constant interference with liberty
Not only the strict egalitarian, but anyone who holds a
patterned conception of justice will have to embark on
constant interference with liberty
A patterned conception views justice as a matter ofthe pattern of distribution that results from
transactions, rather than being a matter of the
voluntary nature of the transactions themselves.
o Judge the justice of a situation according to
where the resources end up
o Historical entitlement as an alternative conception of justice
Consist of three sets of principles:
Principles of acquisition
o Determines the circumstances under which
the someone can acquire ownership of
formerly unowned resources Transfer
o Situation in which resources can be
transferred from one person to another
Rectification
o Determine what should be done to rectify
unjust in terms of the first two principles
BUT enforcing a system of property right also encroaches
upon liberty
Liberty figures on both sides of the argument
because by ensuring that property is distributedmore equally, one ensures that the freedom to use
objects and spaces is itself distributed more equally
Markets and equality
o Will markets necessarily upset any patterned distribution
o Mere differences in monetary wealth do not always represent an
inequality in resources
If I like fast cars and lots of cash and am prepared to work
for them, and you like lots of spare and time and are
prepared to make do with less money, the differences in
income are likely to reflect the differing tastes.
Taxing me is likely to produce inequality at a morefundamental level: I am now working hard but getting less
-
8/11/2019 Central Issues in Jurisprudence
6/25
o Caveat: Differences often reflect accidents of social circumstance
and abilityBoth of which are arbitrary from a moral point of
view
Giving content to rights
o How do we give content to rights?
Kant placed the notion of equal freedom at the centre ofhis account of justice
Took it by concern the impact that one persons
conduct may have upon the freedom of others
Freedom can only be limited to maintain equal
freedom for others
BUT how is freedom to be measured/assessed?
Within Nozicks theory, rights are basically rights to
control the use of certain objects and spaces
o BUT what is to count as an encroachment
upon your property. Physicalinvasion/Trasmission of noise, offensive
smells?
o To consider such questions would be to step
out of the framework of the historical
entitlement theory and seek to determine the
requirement of justice by reference to
distributive or aggregative requirements.
Indeterminacy infects Nozicks assumption that
property rights are freely transferrable. Yet,
precisely because the various elements in the bundle
are logically separable, ownership does not entailthe existence of such a power.
o How do we get from the idea of ownership to
the idea of transferability?
The point is not that Nozick does not provide
answers, but that it is difficult even to imagine
answers that would not necessitate a step outside
the bounds of Nozicks right-based reasoning
o Nozicks self-ownership seems incapable ofproviding a response to such questions, and
conceivable responses seem to requirereference to the good in the form of welfare
or well-being, rather than the right.
Chapter 4Finnis on objective goods
Various theories examined so far claim to be neutral between the
different conceptions of good
o Rawls, Veil of ignorance
o Nozick makes no mention of these issues
o Utilitarianism is deemed sufficiently broad to encompass various
conceptions of the good
John Finnis seeks to restore an old and well-established conception of
practical reason drawn broadly from Aristotle to Aquinas
-
8/11/2019 Central Issues in Jurisprudence
7/25
o Rationality as a means of fitting means to an end in an
instrumental manner
Hume argued that reason cannot tell us what we ought to
pursue, but only how to attain ends we have already
chosen.
Argues that our moral beliefs are based onpreferencesThese preferences are neitherreasonable nor unreasonable
o Goods and desires
No desire can be said to be irrational, unless it depends on
false factual belief
The example of the saucer of mud suggests that a desire is
unintelligible unless it is related to some objectively good
characteristics of things that are to be desired
Goods and human nature
o
By reflecting upon our own grasp of practical reason, we can arriveat a set of objective goods. Since these goods represent forms of
human flourishing, they could be said to amount to a conception of
human nature.
o We arrive at prescriptive conclusions about the good by reflecting
upon our own engagements in practical reason
Prudence and morality
o A flourishing life requires some degree of concern for others
o Difference between prudence and morality is considered
insubstantial, in so far as a fully informed prudential concern for
ones own flourishing will encompass due concern for the well-
being of others But, wouldnt that create a situation where we are unduly
concerned with the welfare of other individuals?
Finnis answers that these goods are
incommensurable
Finnis wants to argue that there are limits to
reasonable self-preference: a degree of impartiality
is required of all of us
Incommensurability of goods
o BUT, we need to be able to make ordinal, not cardinal
judgments about the good The common good
o Answer is that it is essentially the condition that allows members
of a community to exercise practical reasonableness and lead
flourishing lives
o Has a number of implications:
Principle of subsidiarity
Affirms that it is the proper function of a community
to help individuals help themselves, and to assist
individuals in the pursuit of their projects
Also helps to underpin the idea that our moral concern for
the common good need not be an obsessive concern withhow well other peoples lives are going, but it is primarily a
-
8/11/2019 Central Issues in Jurisprudence
8/25
matter of fulfilling ones particular obligations in justice,performing contracts and so on
The role of choice
o Not all lives will count as practically reasonable One might fail to lead a flourishing life for a variety of
reasonso Difficult to see how it might be more reasonable to choose one
option while another person chooses another
Finnis does not want to say that because all the available
options are equally reasonable, the choice between them is
an arbitrary one
On the other hand, he does not want to say that you and I
may choose quite different things and yet choose fully
reasonably
o SOLUTION: One must choose a coherent plan of life on the basis of
ones capacities, circumstances and tastes A scholar may have little taste for friendship choosing
instead to focus on his/her research
One thing to have no taste for friendship, but it is another
thing, and stupid or arbitrary, to think or speak or act as if
these were not real forms of goodso Yet, problem still remains as to the choices to be made between
different reasonable options
Justice
o Principles of justice are simply the concrete implication of the
general requirement that one should foster the common good in
ones community Problems of distributive justice apply
Also the problem of dealing with specific persons
o Finnis ultimately sees justice as fostering the common good, his
account of justice is a flexible and pluralistic one
Not attracted by theories which offer a single principle to
regulate all questions of distributive justice
o Some theorists draw a very fundamental contrast between
distributive justice and commutative (corrective) justice
For commutative (corrective) justice, justice is primarily a
matter of property rights, the keeping of contracts and
correcting of injuries
Questions of distributive justice arise only when the owner
of some property wishes to distribute it.
For distributive justice, the basic questions of justice
concern how benefits and burdens of social life should be
distributed
These different ways of thinking about justice are
well represented in questions of contract and tort
For commutative (corrective) justice, the main
point about contract and tort must be that torts and
breaches of contract are wrong. As wrongs, theyshould be rectified by compensation
-
8/11/2019 Central Issues in Jurisprudence
9/25
For distributive justice, the main question is no
longer who is wronged by whom, but it is the
question of who should bear certain risks and
responsibilities.
o For example, the mass production of
consumer goods is an enterprise that benefitseveryone. BUT who should bear the risk of
such har,?
HOWEVER, Finnis views that these two conceptions
represent two different aspects of the general problem of
fostering the common good.
Basic rights
o Finnistheory is centred on common goods, not individual rights.
But because the requirement of the common good are complex, it
is useful to be able to report the implications of those
requirements in the terminology of rights Rights are grounded in Finnis theory in the principle thatone must never perform an act that in itself simply harms
or impedes basic goods
BUT remote but foreseeable consequences of many of our
actions harm basic goods
For example constructing a high speed railway
means that someone is virtually certain to die
o But Finnis accepts this criticism and states
that we may not undertake direct actions that
damage basic goods
Distinction isproblematic. Howdirect is direct?
o Absence of a common scale by which distinct
values may be conceded isproblematic
Direct vs indirect actions touches on the DDE. This is
problematic
o Abortion as an example
Kill the foetus is not permitted, even
though it saves the mothers life Pull out the womb is permitted, even
though it is virtually certain that deathwill result, BUT it is not intended
This poses a problem though, does it mean that
there are certain circumstances under which any
action is justifiable?
Part 2: Law
Is there an obligation to obey the law?
Can punishment be justified?
What makes something legally valid
How can judges be constantly making and changing law, if they are bound
to apply pre-existing law?
Natural law and legal positivism
-
8/11/2019 Central Issues in Jurisprudence
10/25
o Natural law emphasizes the roots of the law in justice and the
common good
Includes Aristotle, Thomas Aquinas and John Finnis
These are human goods that can be secured only
through the institutions of human law, and the
requirements of practice and reasonableness thatonly those institutions can satisfy (Law and natural
rights, John Finnis)
Law is to be understood by its focal instances
when it serves the common good
o Legal positivism emphasizes the laws basis in authority
Law for Thomas Hobbes, is necessary to make social order
possible, but it does not fulfill the requirement of any
underlying structure of rights
Hobbes is thought of as a legal positivist because he
emphasizes the need of the law to moderatebetween differing, competing interests
MODERN legal positivists do not see themselves as offering
a prescriptive argument about laws moral authority. They
are trying to offer a way of understanding laws nature thatsets on one side all moral issues.
Many modern legal theorists view their job as that of
conceptual clarification
Chapter 5: Hart
Legal positivismWhat they do and do not claimo Positivists claim that the legal validity of the rule is a matter of the
rules derivability from some basic criteria of legal validityaccepted in the particular legal system in question
o Positivists claim propositions of law are NOT moral judgments
o Positivists do NOT deny the importance of morality. Instead, they
see intellectual clarity as being served by the separating of the
moral evaluation of law from the content and nature
o Positivists do NOT deny that moral views influence the contents of
law passed by legislators
o Positivists do NOT deny that judges sometimes decide cases by
reference to oral values
o
Positivists do NOT that there may be a moral obligation to obey thelaw.
o Positivists do NOT claim that we should always obey the law, or
that judges are applying legal rules. These are issues not dealt with
by positivists
o Positivists do NOT claim that there is anything in the concept of
law itself that entails any grounded ness in the validity of rules
Normativity and reductionism
Rules and the internal point of view
o The view of law as being constituted by the sovereign, with people
obeying it by threat of suffering a sanction at the sovereigns
behest. (Propounded by J.L. Austin)o Hart argues that these ideas are insufficient.
-
8/11/2019 Central Issues in Jurisprudence
11/25
Problem of succession
Suppose that a supreme law maker in a certain legal
system is an absolute monarch, Rex I. According to
Austin, Rex I is the sovereign insofar as he is
habitually obeyed by the bulk of the population. Now
suppose Rex I dies and is succeeded by his son, RexiI. Having only just taken power, it follows that we
cannot describe the bulk of the population as
habitually obeying him. So on Austins definition of
the sovereign, we cannot describe the bulk of the
population as habitually obeying him. Problem of sanction
Likelihood of sanction may force me to act in a
certain way as a defining characteristic of the law,
according to Austin
BUT what about judges imposing obligations? Also unable to accommodate considerations of
rights, entitlement, obligation and justification in his
theory of law
Internal point of view
When an accepted rule exists, there is conforming
behavior (external aspect), coupled with the ruleas a basis for evaluation and criticism (internalaspect)
o Power and secondary rules
Bentham and Austin treated all laws as duty-imposing.
BUT Hart thinks that this tendency to reduce all lawto a single pattern ignores the differing social
functions of different laws
o Wills are not restriction on conduct. It merely
offers us a means of controlling the
disposition of property
o Power-conferring laws confer the power to
alter legal rights and relations
Wills
Marriages
Secondary rules
As opposed to primary rules, that are rules about
conduct (like do not kill)
Secondary rules deal with rules about other rules
o The most important is the rule of
recognitionSome feature or features
possession of which by a suggested rule is
taken as a conclusive affirmative indication
that it is a rule of the group to be supported
by the social pressure it exerts. (Hart) a
How do we decide that the rule of recognition is?
o
Rule of recognition is a rule accepted byofficials
-
8/11/2019 Central Issues in Jurisprudence
12/25
o Established by empirical observation
The whole point of the rule of recognition is to
provide a body of publicly ascertainable rules that
can be established by reference to empirical facts.
o This makes it separate from morality
o
US bills of rights might have certain moralstandards, but these are contingent, not
necessary, connections
The legal system
o They key idea is that the rule of recognition changes if a bulk of
officials (curiously undefined) recognize and change it.
o We will see however that Hart also wishes to eschew an austere
reliance upon considerations of pure form and to invoke certain
minimal and uncontentious claims about laws purpose
Adjudication
o
Where the law does not give an answer, judges must establish byhis decision, a new legal rule
o Early twentieth century, many American scholars emphasized the
apparent pliability and alterability of legal rules and the extent to
which this pliability required judges to rely upon considerations
drawn from outside the legal rule itself. (American realists)
Tended to focus upon the way in which our interpretation
of rules depend upon the a host of background contextual
assumptions, and the way in which rules of case law may be
modified in the course of application
Realists tended to emphasize the stability and predictability
of judicial understandingso Hart distinguishes between formalists and rule sceptics
Formalists look at law as a self-contained body of standards
that determine by deductive logic the correct answer
BUT Hart things that language has an open texture
There will be a range of clear cases, but there will
also be penumbral cases where it is not clear
ALSO Hart thinks that the American realists are making a
mistake
Realists overlook that words have a core of settled
meaning BUT Simmonds argues that
o 1) Rule sceptics are concerned with the cases
where there is genuine legal uncertainty. In
most other cases, there is no problem with
the issue of the application of the law
o 2) If Hart is read as saying that verbally
formulated rules prescribe determinate
outcomes in most cases quite apart from any
such background of shared values, that would
be overly simplistic.
We place reliance on a host of takenfor granted assumption. As an
-
8/11/2019 Central Issues in Jurisprudence
13/25
example, even the deceptively simple
phrase Dogs must be carried on theescalator relies on a shared
understanding of underlying issues.
o Lon Fuller argued that we always interpret rules in light of our
understanding of their purpose. Example of the rule prohibiting vehicles in municipal
parks. Would a lorry a group of veterans wished to
establish as a war memorial be problematic. After all, the
rule is presumably aimed at eliminating pollution and the
hazards of traffic. The lorry would cause none of this.
BUT Hart argues that there is nothing in the rule of law
guaranteeing that the relevant purposes of the rules are
moral purposes.
BUT Simmonds argues that there are other important
jurisprudential questions to be answered here. In
particular, the purposes served by legal rules are far from
transparent
Distinguishing cases
o A further range of considerations applies to case law, where no
such authoritative formulations are to be found
o How do judges decide when to narrow the rule laid down by
earlier cases, or to reformulate a rule by creating a new exception.
o How can judges be bound by rules if they can also alter the rules?
Harts solution appears to depend on saying that theformulation of a settled rule of case law is always relative to
a particular context of application, and the occurrence offuture cases may always render the rule to that extent
unsettled
BUT Raz argues that judges do indeed have power to alter
the rules, but the power is consistent with the rules being
binding, in so far as the power is a limited power.
Raz suggested that the relevant power was limited
insofar as it could be exercised only for certain sorts
of reasons
o Problem here is that any account of the
relevant reasons that is sufficiently broad to
explain the practice of distinguishing and
narrowing rulings is likely to encompass all of
the reasons on which a a court may
legitimately act quite apart from the binding
force of specific rules
Raz suggested that it was limited by the form that
alteration can take: It must consist in the addition of
a new exception to the rule
o BUT this fails to explain the way in which
judges can fundamentally reformulate rules
in a way that cannot be analyzed as theaddition of an exception
-
8/11/2019 Central Issues in Jurisprudence
14/25
Think about tort law for example,
Neighbor test, two stage test, three
stage test
Dworkins theory says that judges alter the more specificlegal rules, but do so in the implementation of deeper legal
principles, not at their discretiono Significant debate on this issue:
The dependence of our practical reasoning upon a never-
fully-articulable background understanding is a most
significant fact which has been explored by philosophers
Legal obligation and the internal point of view
o IF we accept that laws are posited rules emanating from
authoritative sources, no rule counts as law simply because it is
just and reasonable.
It MUST also have the authority of the law-making body
BUT might the authority of a law making body not bea matter of the morally binding force of that bodysdecree?
Kant argued in the metaphysics of morals that even
in a system of wholly posited laws, one would still
require a basic natural law that established the
authority of the legislator
But Hart wants to resist such arguments and argue that
legal discourse does not assume any particular moral
attitude towards law
After all, judges often talk in the language of rights,
duties, ought, etc. Furthermore, isnt the internal point of view also a
certain sort of moral imperative?
o Hans Kelsen emphasized the contrast
between reductive approaches to the legal
order that treat it as an apparatus of
systematic coercion and the lawyersdistinctive point of view that regards law as a
body of valid norms (????)o Kelsen assumes that valid means ought to
be obeyed BUT Hart rejects this judgment, views
it as a rule that satisfies all the criteria
provided by the rule of recognition
o Rule of recognition itself is neither valid nor
invalid. It just IS.
o Hart rejects conclusion that propositions
about legal rights duties and validity are
morally binding
Argues that it could be grounded in
non-moral considerations such as
considerations of long-term selfinterest
-
8/11/2019 Central Issues in Jurisprudence
15/25
But its not a complete defense, simplya partial one. There might be cases
where judgments are indeed moral
oughts, rather than being based upon
non-moral considerations
A different positivismo The claim that legal obligation is a type of moral obligation is quite
consistent with the positivist idea that law is law, just or not.
Since the basis of of the moral obligation lies in the laws
publicly ascertainable nature, the claim is also consistent
with the idea that laws must emanate from authoritative
sources, and that being just is not enough to make a ruleinto law.
Since any moral obligation may be overridden by
conflicting obligations, the claim that legal obligation is a
type of moral obligation is also consistent with the idea thatlaw is never completely conclusive of what we morally
ought to do: there may be circumstances when it is our
moral duty to break the law
The conclusion we are now considering is that the internal
point of view is best understood as a particular moral
attitude towards law: not necessarily moral approval, but
moral acceptance of the general obligation to comply
Useful because it lets us see how even unjust laws are
necessarily, laws.
Harts point is that the refusal to ascribe moral force to a
wicked law might itself be seen as moral obfuscation ofdifferent issues. It amount to the idea that certain reasons
are inapplicable when in fact they may be applicable but
clearly outweighed
Rules and formal justice
o Why is law linked to morality?
The connection between rules and principle of formal
justice
Distinction between formal and substantive justice
o Justice in its formal dimension is the
consistent application of rules
BUT Dworkins objection is that their
legal right for the consistent
application of rules might also
constitute a moral right
The shared content of legal systems
Some positivists like Kelsen have concentrated on
the laws form at the expense of its content
Hart tells us that theories that have approached the
law in purely formal terms have been inadequate
Law as a tool for survival
Parallel to Finnis, who seeks to demonstrate theexistence of several objective goods by showing how
-
8/11/2019 Central Issues in Jurisprudence
16/25
they are presupposed by all of our practical
reasoning and practical understandings They
provide our intellectual access to the human world
of life and action
BUT is there perhaps a richer notion of human
flourishing, going beyond mere survival? The nature of conceptual analysis
o Law has a contingent, not a necessary connection with morality,
according to legal positivism
o Harts concept of law is one he constructs, not one that he simplydiscovers. It is to say that his construction is informed by a
broader POV that endows one feature rather than another legal
phenomena with significance
o Legal positivism as conducive to intellectual clarity, BUT this turns
upon certain evaluative criteria
o
Harts claims of legal positivism is grounded upon deeper sets ofclaims on human nature and circumstance
Harts theory as political philosophy
o Harts theory of law does not give a central role to sanctions
Necessary, but not an integral part of law
Ensure that the puzzled mans interest coincides with the
interest of general welfare
Harts readers could be forgiven for concluding that hisdiscussion of Austin that an emphasis upon sanctions
springs from simple conceptual error: but that is not the
case. Theories of law that have emphasized the importance
of sanctions have generally done so in consequence ofdeeper accounts of human nature and moral value
Possible that Harts account of law could theoreticallyprovide a central role for sanctions
Harts rejection of sanction based theories cannotultimately be based upon his opposition to
reductionism or any other purely analytical
consideration.
o Harts theory on justice Lawyers do offer their legal arguments as proposals for
how the law should be developed For Hart, deliberation over rival principles in penumbral
cases is a relatively marginal feature of the phenomenon of
law/ The most important aspect of law is revealed in the
multitude of situation where the content and applicability
are not in doubt
For Hart, his account of law is based upon the basic
value of survival
Legal doctrine and legal theory
o Harts view reflects the circumstances in which his theory waswrittenEnglish law has long had well-established rules defining
the sources of law and had enjoyed a stable and shared frameworkof ideas
-
8/11/2019 Central Issues in Jurisprudence
17/25
Legal theory might seem a matter of external reflection
upon the law
o BUT what if states are reflecting on new constitutional
settlements. Fundamental juridical questions cannot be
established by reference to well-established rules \
o
When questions concerning the sources of law are not resolvableby reference to the basic rule of recognition, Hart regards them as
amounting, in substance, to political questions where all that
succeeds is success
o Hart might be thought to igonore the layers of semiotic complexity
that make up the practice of law
BUT Hart is misguided if he sees himself as discovering an
essence or central case of law that enjoys intellectual
priority over the numerous other facets of significance
exhibited by the actual practice under investigation
BUT Hart is misguided in imagining that an account of the
practices core significance can be constructed from thedisengaged standpoint of an external observer
Chapter 6: Ronald Dworkin
Jurisprudence divided into:
o Analytical jurisprudence
Aim to clarify understanding of law without offering any
normative guidance
o Normative jurisprudence
Offer normative guidance as to what ought to be done
Rules and principles
o
Dworkin challenges the general picture of law and legal reasoningin the case of Riggs v Palmer.
o In Riggs, a probate suit, the plaintiffs, Mrs. Riggs and Mrs. Preston,
sought to invalidate the will of their father Francis B. Palmer;
testated on August 13, 1880. The defendant in the case was Elmer
E. Palmer, grandson to the testator. The will gave small legacies to
two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of
the estate to Elmer Palmer to be cared for by his mother, Susan
Palmer, the widow of a dead son of the testator, until he became of
legal age.
o
Knowing that he was to be the recipient of his grandfather's large
estate, Elmer, fearing that his grandfather might change the will,
murdered his grandfather by poisoning him. The plaintiffs argued
that by allowing the will to be executed Elmer would be profiting
from his crime. While a criminal law existed to punish Elmer for
the murder, there was no statute under either probate or criminal
law that invalidated his claim to the estate based on his role in the
murder.
o Shows that:
Rules apply in an all or nothing fashion. Principle gives a
reason, but not a conclusive reason. Mainly becauseprinciples conflict
-
8/11/2019 Central Issues in Jurisprudence
18/25
Valid rules cannot conflict. Legal system have doctrinal
techniques to tackle these issues
Principles must be balanced against one another
o In the case of Riggs, it shows that two principles rather than rules
of testamentary succession conflicting.
o
Courts change the rules on the basis of applying legal principles Principles and positivism
o Dworkinsattack is that a principle may already be a legal
principle even though no court has ever formulated it or laid it
down as a principle.
o We can identify these principles by consulting certain sources
o Strategies for reconciling with positivism:
May argue that principles are indeed part of law and can be
recognized as part of a rule of recognition
Discretion and rights
o
Dworkin must offer compelling reasons as towhy principles should be a part of existing
law
BUT if the positivist takes this view of
the case that principles are not part of
law, then he either accepts that:
1) Riggs v Palmer was wrongly
decidedWould then have to consider
whether all other cases are wrongly
decided
2) Judges may legitimately alter the
legal rules where they conflict withdesirable social policies or moral
valuesBut that would mean that the
rule of recognition doesnt apply since
he can choose to obey it whenever
he/she wants to
The positivist may also argue that these principles are not
part of law, and are part of an extralegal consideration
The rule of recognition and the soundest theory
o Criterion, according to Dworkin, that distinguishes legal from non-
legal principles is that a principle is a legal principle if it forms apart of the soundest theory of law that could be offered as
justification for the established rules and institutions in a
particular institution
How do you decide if a principle forms the soundest theory
of law?
Must decide for himself which body of principles
best justifies established law
Deeply contested ideas here even between
constitutional lawyers
BUT Harts response is that there is no necessary but simply
contingentconnection between morality and lawUS andUK constitutions as examples
-
8/11/2019 Central Issues in Jurisprudence
19/25
Constructive interpretation
o Dworkin rejects Harts distinctions of: 1) Analytical vs normative jurisprudence
Dworkins view is that Hartian enterprise of
conceptual clarification lacks an intellectual point.
o
When people ask what is law, unless anduntil it is connected questions concerning our
moral duty to obey the law
2) Separation between legal theory and applying law
Argues that as players involved, we must use our
legal theory to inform the application of law
Argues that debates of legal theory are interpretive
disputes
Our views on what law is informs our views on what
specific laws should be
Dworkin, by contrast, sees legal theory as reflectingupon the nature of law not as part of some general
intellectual inquiry but as part of our reflections
upon the scope of a presumed duty to obey and
apply the law
Criticism: Dworkins pre-interpretive instances
based upon a rule of recognition for the instances to
be identified
o BUT misguided because we might not
actually possess general views as to what
makes these instances law/principles in the
pre-interpretive stages
Dworkins criticsInternal and external sceptics
o Internal sceptics
Concerned to challenge its applicability to particular
contextDifficult to find that the law embodies a certaincoherent set of values
o External sceptics
Amounts to the argument that values are essentially
subjective
BUT its the same weakness with subjectivism of
moral judgments One CANNOT make moral claims with apparent
seriousness while denying that those claims are true
The threshold objection
o Understanding of laws nature should place law in a broader socialand historical context
o Dworkins view of laws social context is particularly relevant
given his ultimate conclusion about laws nature Expresses a deep conception of equality and makes the
society that it governs into a genuine community
Choosing a legal theory
-
8/11/2019 Central Issues in Jurisprudence
20/25
o Dworkin proposes that the most abstract and fundamental pointof legal practice is to guide and constrain the power of
government
Differing legal theories would offer differing interpretations
as to why this might be the case. Perhaps because:
Give fair warning of the circumstances wheresanctions might be ordered
Ensure that citizens are being treated equally?
Conventionalism offers the idea that law turns upon the
notion of fair warning
Judges should decide cases in accordance with rules
identified by reference to a basic convention
Should NOT treat as law ideas that they consider to
be implicit in the system of rules
BUT Dworkin criticizes such a theory on the grounds
of fit and appealo IF conventionalism is concerneced to give fair
warning and avoid the defeat of expectations,
then the conventionalists should be unilateral
conventionalists. This means that when they
can invoke a clear rule, judges should favor
their claim
BUT this theory does not fit becausewe know that judges do advance new
rules and remedies
The solution from conventionalists might be to argue that
fair warning is important, but it is not the only calue, for itis also important that the law should respond to new
demands and grant new remedies.
If NEITHER side has a clear rule in their favour, the
court can have consideration as to the issue of
flexibility
BUT Dworkin thinks it better if we balance these
values on a case by case basis a.k.a. adopt a
pragmatic approach
o BUT pragmatist does not fit because it
would mean that judges can decide cases on acase-by-case basis, THUS depriving
individuals of legal rights
Law as integrity
Hold on to a consistent set of principles, do not
invoke other principles simply because it might
serve their interests to do so
The totality of the law is not according to law as
integrity, available in an explicit form, for law
includes principles that are merely implicit and that
can be discerned only by an exercise of private
moral judgment
-
8/11/2019 Central Issues in Jurisprudence
21/25
o When we are governed with integrity, we are
treated as equals, the same principles are
applied to all of us. When we are so governed,
that form of governance makes us into a
community
Checkerboard abortion case given asan example
Lacks principle and people must either
admit that such a rule lacks principle
or find that there is nothing wrong
with that
BUT as Fletcher argues,
unprincipled compromises,
apparently lacking in integrity
are not uncommon in
constitutions and legislations.They represent the most that
people can agree upon at a
particular moment of history
BUT Judges and courts as a
forum ofprinciple? Shouldntthe legislative branch have a
larger say here?
BUT we also see a tendency for
Dworkin to take for granted an
unproblematic continuance of
peaceful and orderly societies,within which these debates can
take place. Even within a liberal
pluralistic society, where
people share little else besides
rules and entitlements, how
can they share the same
values?
BUT, as Roberto Unger has
argued, there is a drive
towards systematic closure andabstraction that transformsordinary purposive judgments
into prescriptive theory-like
conceptions of whole fields of
law and social lifeMight this
not be too rigid, thus
precluding political change
Order, theory and community
o If the law is not to be infected by moral disagreements, it must be
possible to ascertain the content of existing laws in some relatively
uncontentious matter
-
8/11/2019 Central Issues in Jurisprudence
22/25
BUT can Dworkins theory of law as integrity fit thisrequirement?
After all, the precise way in which sources feature
will also depend upon the judges viewpoint
IF judges as a whole reflect the moral diversity of
society, will the law not fail to provide the necessarylevel of certainty and stability
Chapter 7: Lon Fuller
The story of Rex
o Jurisprudence is an attempt to make coherent sense of our settled
understandings concerning rights
Justice according to law VS justice embodied in law
Our understandings of law diverge very significantly
o Highlights the key issues that law must be:
Published
Prospective
Intelligible
Not contradictory
Possible to comply with
Reasonably stable through time
Followed by officials
o The story reveals to us that
Law is a purposive human activity
Reflection upon the attempts to create a legal order
will deepen our idea of the understanding of law
Fuller is closer to Aristotle; worldly traditions ARE
relevant in our understanding of morality Facts, values and purposes
o Harts positivism states Like other forms of positivism my theory makes no claim
to identify the point or purpose of law and legal practices as
such I think it quite vain to seek any more specific
purpose which law as such serves beyond providing guides
to human conduct and standards of criticism of such
conduct BUT a desire to establish rules for the guidance of conduct
would itself be based on a more fundamental/underlyingphilosophy
o So far as a great many questions about the justice or injustice of
law(external morality) is concerned, fuller does not dispute Harts
view that the law may or may NOT serve justice
o BUT Fuller claims that there are also values internal to the law,
which we also apply in determining whether a legal system is good
or not
Conceptual structure
o Inner morality of law is chiefly a law of aspirationVaryingdegrees of excellence and unworthiness
o
Fullers argument involves two steps:
-
8/11/2019 Central Issues in Jurisprudence
23/25
Demonstrate that the concept of law is best understood as
structured by the archetype of full compliance with the
eight requirements
Show that full compliance with the eight requirements is a
moral ideal
Moral purposeso The enterprise of subjecting human conduct to the governance of
rules
o Fullers theory is similar to the natural law idea in that systems
count as law in virtue of their approximation of the ideal of
compliance
o Fuller sees some intrinsic moral value in the purely formal and
procedural aspects of law, quite apart from the laws substantive
content
o Fullers arguments are deemed unconvincing in demonstrating
that the compliance with the eight precepts do indeed count asintrinsically moral
Wicked regimes
o Real question is whether a wicked regime would have good reason
to comply with the eight precepts for the attainment of both good
and evil goals
Simmonds argues that wicked goals can be pursued
through law
The value of the rule of law
o Would the rule of law values be valuable in the context of an
oppressive regime? (Say the consistent application of unjust
rules?) Some jurists react by inserting a richer content into the
value of the rule of law(Think Bingham)
BUT the more we inject a rich content into the ROL,
the less the notion seems to grounded in the concept
of law as such
Distinct from the concept of law because of the
injection of such content
The more that our notion of ROL becomes detached from
the general concept of law, the more arbitrary will seem our
decision to give this or that particular content to the ROLo Simmonds argues that complying with the eight requirements
would be of intrinsic moral value
Obedience towards the Rule of Law creates domains of
liberty
To the extent that one is governed by the ROL, one will
enjoy certain domains of protected optional conduct that
are independent of the will of anyone
Simmonds argues in Law as a moral idea that justice and
legality stand in a rather complex relationship. They are
indeed distinct values and frequently compete
BUT for the two values to be fully realized, they need towork in conjunction
-
8/11/2019 Central Issues in Jurisprudence
24/25
Guidance by rule and by aspiration
o Both Dworkin and Fuller make sense of legal practices by
proposing a shared goal or aspiration. Hart makes sense of legal
practices by proposing a basic rule, specific to each system
o Dworkin and fuller regard the questions of legal theory as entering
and forming a part of law. Principle and change
o Fuller never really arrived at a convincing answer of the inner
morality of law.
o Simmonds argues that Fullers argument can be extended byviewing it as providing freedom as independence from the power
of anothero Fullers eight requirements connects us with the need for stable
expectations
o Suggests that in fact, a system of rules that does not change might
be the PERFECT embodiment of legality. Represented the ideal of rulers at the very origins of
western legal thought
o Matthew Hale view of the common law grounded in historical
community and on the integration of each individual part of the
law into a coherent whole
Chapter 8: The analysis of rights
Analytical jurisprudence of rights aims to answer the question of what it
is to have a right
o Prima facie observation: Rights seem to possess peremptory force:
they cut short debate and preclude balancing of other
considerationso Different approaches place different emphasis on the force of
rights
Utilitarians think of rights as being important for the
greater good they bring about
Other think of the benefits of rights in allowing for differing
conceptions in a liberal society
Nozick thinks rights as side-constraints that trump
considerations of utility
Raz thinks similarly that rights have peremptory force, but
they are not conclusive. These peremptory forces areexclusionary by kind, not by weight.
Legal vs moral rights
o What is their relationship? Which to start with?
Better to start with legal rightsMoral rights. Do legal
rights have any basis.
Kant Positive laws can serve as excellent guides
Hard atoms and soft molecules
o Two issues:
Peremptory forces of rights (PF)
Internal complexity (IC)
Regard rights as complex molecular structuresserving as intellectual nodal points in our legal and
-
8/11/2019 Central Issues in Jurisprudence
25/25
moral deliberations, and from which diverse
conclusions may be drawn
Contrasted with the view of rights as atomic
elements whereby we may report the settled
requirements of law or justice, but which do not play
a central part in our deliberations upon contentiousor moral issues
Kantian view ascribes both IC and PF
Hohfeldian view gives rights no IC but PF
Raz/MacCormick view gives rights IC but no PF
Kantian view
o PF
Rights linked to the justified use of coercion
Free speech right means the right to coercion to
prevent others from interfering with my right and
the right of others to coerce me into not speaking isunjustified
Coercion is wrong if its interferes with freedom;
justified if it maintains equal freedom
o IC
Legal rights function as nodal points within legal reasoning,
enabling lawyers to draw complex conclusions from
apparently simple premises
A slight digression
o Hard to reconcile the principle that all interferences require
justification with the principle that the presence of a malicious
motive should not rob an action of its legality Hohfelds analysis
o Various rights can be reduced to four different notions
Claim-rights
Liberties
Powers
Immunities