HOBBES: LEVIATHAN

Legal Positivism of Thomas Hobbes Represents a break with the NATURAL LAW tradition (does not depend on human will) o Law is the command of the sovereign, it exists by position Leviathan, 1651. o Predecessors to Leviathan (2 books, 15 years prior) Bentham/Austin successors of Hobbes Writes during Civil War (very turbulent times) o Opportunity to reflect on much deeper issues Goals: o Geometric method, Wants to develop a science of politics (goes back to Plato, re how politics is all a matter of opinion) Wants there to be particular truths, which would lead to: o Necessary structure of law and government, and the inherent truths of this idea would eliminate disorder. Why War? Chp. 13 o The state of nature war is the state of nature (what the world would be like without government) o Abolish government and human beings becomes equal 1. Equality of strength the weakest can kill the strongest government is not simply a power game strength cannot be the basis of rule 2. Equality in wisdom Difference in intelligence are not so innate as are the differences in society As no one is wiser than others, wisdom cannot be the basis of rule/government Knocks out Platos argument re. Philosopher Kings 3. Equality of hope 4. Each is judge when there is no judge, you have to be the judge in your own case

Each hoping to satisfy own desires, and with limited and indivisible goods, war is the inevitable result o Right of nature is no right at all because everybody has it, it is the right to everything, leave the state of nature because of fear of violent death. Elemental passion to stay alive. CONTRACT OF SOVEREIGN GOVERNMENT o Why leave state of nature 1. There are nasty people fear of violent death 2. People will differ how to interpret natural law (use own reason) Law of nature also commands peace State of nature only works when everyone agrees with it (Social Contract) o How: Transfer virtually all rights to sovereign, dont entrust them (Locke), but rather give them up o Effect: Sovereign has authority (not a power game, but you have authorized them by transferring rights), subjects have obligation to obey. Conquest also confers authority. o Contract: not between sovereign and subject, because the sovereign is not party to the contract. Is a 3rd party beneficiary contract gets benefits with no disadvantages, but can never break it because they never agreed with it. o Sovereignty is unlimited. o Get out of state of nature: transfer your rights, give up your rights. Unlike Locke where you transfer you rights, and you keep the right of revolution, you dont get this with Hobbes o Sovereign doesnt need to promise anything in return, because only by giving up rights permanently (conditions are the state of nature all over again), can we ensure peace. o People will rebel if things do go badly, and while Hobbes doesnt give them any formal legal right to rebel, we do recognize that it is a possibility and assume that the sovereign understands this too.

o BUT the state of nature will ALWAYS be worse than living in a society, no matter what, because then EVERYONE is nasty, not just the sovereign o Conquest also confers authority Militaries that invade other territories Conqueror has legitimacy because people consent to obey the conqueror, and if you lose you are given the choice of surrender or die, people will chose to surrender Government based on conquest is still legitimate ABSOLUTISM o As long a government is performing its function, (peace, order, law, prevents civil war) then its a legitimate government, concerned with actual function o Only one type of government is legitimate (prevent civil war) An ABSOLUTE government, with an absolute sovereign, who is indivisible and unlimited o Rights of government 1. Sovereign never unjust justice does not precede law, it comes from the law, and b/c the sovereign is law, it cannot be unjust 2. Decides issues of peace and war 3. Controls education, religion 4. Kingdom divided in itself cannot stand like Lincolns house divided speech essentially the sovereign controls everything

UNCONDITIONAL OBEDIENCE o Consequence of absolutism o Subjects must obey all laws No such thing as civil disobedience o Exception: right of self-defense Whole purpose of government is to protect life, and we are afraid of death

o If you dont youre back in the state of nature when people can pick and choose what laws they obey POSITIVISM o Law is command Civil law as rules which the commonwealth command to make use of in distinguishing right and wrong. The authority makes the law (including law of God) No moral hand wringing or debate, law is law, because those in charge say it is o No right or wrong in state of nature, which positivism remedies Laws tell you what is right and wrong The law cannot be wrong, it is inherently right JUDGES, REASON, COMMON LAW o Contrary to the common law tradition, the sovereign is the sole sources of law and judges have no independent authority o Judges as subordinate legislators o Common law owes its existence to the tacit approval of the sovereign Only because the sovereign deigns to allow it to exist does it exist o Coke: law not against reason o Whose Reason? Hobbes: reason of the sovereign HOBBES AND THE RULE OF LAW o Hobbes is a rule of law theory o Sovereign commands not arbitrary Sovereign has to be able to perform its function, and if arbitrary cannot perform this function o Ex post facto law not a law: Cannot be taken notice of and cannot be obligatory If there was no law against it yesterday when you did it, it wasnt illegal then. o Punishment without trial is a hostile act o If rule of law is ignored, laws impossible to obey

Like a state of nature all over again, if the sovereign doesnt perform its function to govern people will rebel CONCLUSION o Leviathan The mutual relation between protection and obedience Sovereign gives you protection, and you give them obedience Teach sovereigns and subjects their duties How to avoid civil war o Legal positivism: AUTHORITY MAKES LAW

HART, POSTIVISM & THE SEPARATION OF LAW AND MORALS: 1958 12/1/2011 11:58:00 AM
OBJECTIVE Hart defends the distinction between law that is and law that ought to be and challenges the natural law view that unjust laws are not laws Hart believes this to be the heart of positivism o Hart wants to defend this thesis against modern critics o Bentham & Austin accept this view Positivists are not dry analysts while cities burn o Into the real world, and because of this, they made such a distinction Various positions Hart does reject some of the ideas held by Bentham and Austin o Not endorsing all ideas held by positivists o Eg. The Command Theory Hart says False But this doesnt disprove positivism, because its complex, and you can reject others. Still, he defends their separation thesis against its modern critics

AMERICAN LEGAL REALISTS CRITIC #1 They argued that judges do not decide cases mechanically, there are always other factors: o 1. Often there is not rule to apply o 2. Not obvious what the facts are Rule and fact skepticism. (See above 1. and 2.) o Also a critique of Mechanical Jurisprudence Judges have discretion and exercise it based on what ought to be the law. Judges have choice o Fairly radical view at the time (New Deal) o When they make decisions, they draw on morality to make decisions Law and morality meet. o Thus positivism is wrong Hart agrees up to a point: legal formalism is mistaken, but the realists go to far in seeing discretion everywhere o The core and penumbra. o Vehicles in the park

Is a bike a vehicle, are bikes vehicles, are roller-skates vehicles, planes? o But realists wrongly believe that judicial discretion entails a fusion of law and morality. They are wrong because: Not all oughts are moral oughts Discretion can be exercised to advance wicked moral purposes POST WAR GERMANCY CRITIC #2 One time positivists turned to natural law after the horror of Hitler o Radbruch legal positivism disabled lawyers, and paved the way for Hitler. Association between legal positivists and Hitlers regime The Nuremburg Trials context at international level o Dealt with the major players, but not the smaller people What should be done with individuals who had preformed atrocious, but legal actions under Hitler? o Wife-Husband example Wife turns in a husband, returning from the front, who made negative comments about Hitler and the war effort He is sentenced to death, but instead of being executed is put on the front line, where is the line here? o 1. Invoke natural law there is a higher law, therefore the law wasnt valid, they shouldnt have been done, and by doing x you violated natural law o 2. Enact retroactive criminal legislation what happened then was legal according to the regime at the time, but we think that everything was so horrible, that you shouldnt have done it, you should have known, and so were going to punish you o 3. Do nothing war is war, who is without guilt etc. used as defense by some at Nuremburg look at all the things that the allies had done

o 4. No trial, just shoot them we dont need a trial, we know whos guilty, weve won Russian approach Americans didnt agree with it, British toyed with the idea for a while Court adopted the natural law approach Hart argues that retroactive legislation should have been enacted; it would have focused on the real issue o People like Radburch were wrong, in thinking that positivists would be unable to resist Hitler etc. o Solution: Some laws are wicked and ought not to be obeyed You look at the law and the regime and asses them Nuremberg crimes o 1. War crimes out there already, via the Geneva conventions o 2. Aggressive war pact of Paris signed after WW1, renounced aggressive war, and promised to seek mediation instead o 3. Crimes against humanity most of the Nuremberg trials hinged on #1 and #2 came up with this new category, part of the evolution of the international legal system

JUSTICE AND THE LEGAL SYSTEM CRITIC #3 Individual laws need not satisfy the requirements of morality, but a legal system must, otherwise no one would obey it o Big picture needs to be accepted, if is not, why would anybody obey it? Also, certain moral rules (against violence) are found in all legal systems. o Again, the idea of law has moral aspects. Laws are general rules, and as such limit arbitrariness. The idea of law as general rule as some moral aspects Harts reply o A legal system could satisfy these conditions and still be unjust

 Restrict violence, but exclude slaves General laws, but oppress everyone equally o Such a legal system is not moral o The separation thesis remains sound CONCLUSION *** Remember Law and Morality are different social orders, they can overlap, but they DONT HAVE TO *** Positivism not immoral Clarity and moral problems o Positivism provides the needed clarity to understand moral problems Moral autonomy: dont simply obey law, but judge its moral worth o I have to take responsibility for what I do Bentham contra both the anarchist (French Revolution) and the reactionary (Blackstone)

HARTS CONCEPT OF LAW, 1961: REPLACING REX12/1/2011 11:58

IMPORTANCE: Tries to remove the concept of sovereignty from law Revitalizing jurisprudence o Philosophizing about law Analytical jurisprudence and words o Very detailed and precise o About words, but words are about life, and are thus important o Analyzing words is analyzing people and their lives o Critics: he just plays with words Criticized Austin, but still a positivist o Austin was the standard when Hart was a student o Criticizing command theory (and thus Hobbes to an extent) A new theory

LAW AS PRIMARY RULES: DEFECTS Simple definition not possible o No genus to which law belongs Analyze the concept of law and develop a theory o This is how well get insight into law, which we wont get by definitions To elucidate a modern legal system, consider a contrasting model, a system composted of primary rules of obligation o Dont Murder/Customary Law o Customary laws have existed in simple societies Such a system (customary law) unsuitable for a complex society o 1.Uncertainty as to what rules are law have a general idea of the customs, but no certainty as to what is expected at all times o 2.Too static o 3.Enforcement inefficient, based on social pressure rules enforced by social forces criticism, etc. clear enforcement rules in modern legal systems How do we solve this problem? o Additional features (see below)

SECONDARY RULE: REMEDY

Most important is rule of recognition o Used to decide which rules belong to the legal system England, law is whatever Queen-in-Parliament enacts o Example of the rule of recognition in England More laws still needed for other o Creation of law Legislature o Enforcement of law Police o Interpretation of law Courts and judges

PRIMARY AND SECONDARY RULES ARE THE HEART OF A LEGAL SYSTEM Law is the union of primary and secondary rules vs. Hobbes who thinks: o Sovereign, command/sanction and obedience o Covenant without the sword are mere paper CONTRA THE COMMAND THEORY (Austin and Hobbes) Hobbes as a political philosopher, Austin as science of jurisprudence Hart also opposes Austins idea of law as a sovereign command o It distorts what the legal system, there are things that we know about the legal system and the law that dont fit with the idea of command theory (see below) Many features of law dont fit in: o 1. It partly fits a criminal statute, but distorts the law of marriage, contracts, wills, which confer legal power on individuals to create and modify structures or rights and duties Where there are no particular commands (dont do X, or well do Y), there is no legal consequence for not getting married, but your legal status does change when you get married Eg. Wills without two witnesses, there is no jail time or punishment, the will is just invalid

o 2. Legally unlimited sovereign not necessary for law: federal system (contra to Hobbes/Austin views) there are many systems that have law without a legally unlimited sovereign example of the federal system where there is legally divided sovereign (differing areas of jurisdiction) o 3. Law as sanctioned command confuses being obliged and having an obligation. The two are not the same thing With Austin, you cant get to having an obligation If law is sanction/command, then it is just power. Being obliged I was compelled to do X. There was force, pressure, threat, sanction etc. Having an obligation You see the correctness, or rightness of it internal point of view. Eg. The difference in motivation for studying

The

not failing (external) vs. enjoying the material (internal) o 4. If law is sovereign command, then law ceases with the sovereigns death. Modern legal systems have rules about the continuity of law. This isnt the case, and even if it was, they wouldnt be able to function REAL FOUNDATION OF LAW The rule of recognition is the foundation of a legal system o Not the sovereign as per Hobbes and Austin New Questions o How do I know this is valid law, and Im not just making this up? The rule of recognition determines legal validity. But what determines its validity?

o Not another rule infinite regress Youre never going to find the answer. Turtles all the way down When you are appealing in law, and you appeal to a higher law, the higher law will eventually reach the rule of recognition, but then you are still stuck with the same problem o It has a different validity it is used and accepted Calsten there is a basic norm, that is presupposed to be valid. Hart rejects this option Hart the validity of the rule of recognition is found in the fact that it is accepted and used in the system. It finds its validity in its application. Social fact positivism o It is an observable fact that the rule exists, you can see it in action in society Also, legal system exists only if there is a shared official acceptance of the rule of recognition Subjects dont have to take the internal point of view o Obedience is enough, they only need to take the first part, they dont have to move past Austin o Hart could be seen as an elitist theory, its about officials, not so much the everyday people, where its the judges, legislators etc that need to have the internal point of view A legal system exists o 1. If the primary rules of obligation are generally obeyed obeyed by the ordinary citizen, as an ordinary citizen, your job is to obey the law

o 2. If the systems rule or recognition is regarded as a common public standard by officials o Hart applies this to bad situations ie. Nazi Germany, Apartheid South Africa, where according to these criteria, this theory, they had law. While others would argue that it is not law, but tyranny, and use it as proof that Harts theory is wrong. CONCLUSION

Harts new theory o The old positivism sovereign command is replaced by law as a system of rules and social fact positivism Many implications - critiques by Fuller, Dworkin and others

FIVE MEANINGS OF LEGAL POSITIVISM (Harts View) In order to be a legal positivist, you dont have to accept all five, also important from the critics point of view 1. Laws are commands. HOBBES o Law exists by position. o Coercion attached to every command (Hart argues this is false, because command law is not accurate) 2. Separation of law and morals thesis. HART o Law and morals are different social orders or different sanctions, etc. Various possible connections between law and morality but NO NECESSARY CONNECTION. o They are separate, but with many different connections, but that they dont have to be linked to exist 3. Analytical jurisprudence o conceptual inquiries versus historical or sociological studies o critique: its false because it doesnt deal with the reality of law. Too formalistic. o Hart doesnt agree with the critique, but recognized that its important, words are very important, and so analyzing them SHOULD matter 4. Law is a closed logical system. o No gaps in the law, aka. mechanical jurisprudence o Just appeal to the law, and you never have to step outside it o Every possible legal problem is solvable by appealing to the law itself o Critique: judges become simple adding machines, but in reality, judges have discretion, and there are gaps o Hart using this as a critique is not appropriate, because most positivists dont believe this. Not true of positivists. A myth about positivism.

5. Value relativism. KELSEN o non-cognitivism in ethics. o Not a universal belief among positivists o Not Austin (hes utilitarian)

Hart recognizes that law and justice are two different things. Hart would say there is lots of settled law, but he isnt to clear on the criteria of settled law.

FULLER, POSITIVISM AND FIDERLITY TO LAW - 195812/1/2011 1

AGAINST POSITIVISM Law in Quest of Itself 1940 o No sharp distinction between law and morality o Fact and value are aspects of the same reality Positivism offers purely verbal solutions Kelsens empty wheelbarrow o Devoid of purpose, can be filled with anything and pushed in any direction, but nothing to make it go The Morality of Law 1964 Fuller & Hart FULLERS INNER MORALITY OF LAW Fuller and procedural natural law o Procedure vs. substance, about the process Order vs. good order o Positivists are simply worried about order, any order will do o Law is not simply order, law is good order Definition of Law o the enterprise of subjecting human conduct to the governance of rules Law is not merely social power; o Critique of positivists, where law is the general giving orders, it shouldnt be about power only o it is a purposive effort and involves reciprocity between those who make law and those who obey it not top down, just to be obeyed, the citizens have a central role Inner morality of law has affinities with the rule of law Also, restricting arbitrariness enables citizens to live autonomously and plan their lives o If they were arbitrary, then you would be unable to plan, no guarantee of continuity or consistency The incoherence of evil v. the coherence of good

THE FAILURES OF REX

When we think of government, there is the contrast to tyranny. For Fuller, Rex is not the tyrant. His Rex is a nice guy, hes just incompetent Rex the Bumbler; o 1. No general rules everything he says is a particular command, no overarching continuity or necessary consistency o 2. Didnt publish rules o 3. Only retroactive rules No planning, on dealing with things after the fact, a lot of law deals with planning on the future and dealing with things before they happen o 4. Only unclear rules no clarification, details o 5. Only contradictory rules overtime, rules will be enacted that contradict each other o 6. Actions impossible to perform set ideals that may not be within reach o 7. Rules constantly changing o 8. Incongruence between declared and administered rules

DUTY V. ASPIRATION The failures comes under the morality of aspiration Total failure means no law rather than poor law o If you fail radically, then what youve made, isnt law o Power, punishment etc may still exist, but thats not law o The legal system is an aspiration But sometimes the 8 requirements should no be followed o Allows for some exceptions o Marriage example of a need for some flexibility in law Errors in the past perpetrated by a justice of the peace, say how to marry people, would mean that no one was married. In this situation, they would expect a judge to enact retroactive legislation o

THE NAZI REGIME Hart misrepresents Radbruch Fuller on the legal monstrosity of Nazism The right response: - neither positivism or natural law is an appropriate solution o Neither higher natural law nor retroactive legislation but judges declaring there was no law because Nazism violated the inner morality of law o Law in Nazi Germany was not actually law, never attained the criteria to be considered law CONTRA HARTS CORE AND PENEUMBRA THEORY Its innovative, but not in a good way Russell, Wittgenstein and the theory of meaning Not single words but sentences and paragraphs o When we are trying to find meaning, we look at the big picture, context is important o Prof thinks fuller pushes his point too far, because in law, if there is a common, accepted use of a word, theyll go with that, and only moving beyond this point when there is an issue of debate or clarity. interpretation and purpose This is what we should do INSTEAD of core/penumbra We should look at purpose Eg. A military tank in a park on a platform? Memorial? No, there are no vehicles in the park In this care you need to look at the purpose of the

Legal o o o

provision public safety, not art etc. Law is a purpose of activity, destiny of humanity is to work together, not like in Hobbes state of nature Lord Mansfied o Law works itself pure Look at the purpose, and try to improve it through interpretation

MORAL AND EMOTIONAL FOUNDATIONS OF POSITIVISM Austin, Holmes and the army o Positivism as a science of law o They adopted certain attitudes in the army that they took over into law Continued use of military metaphors Law is command, and they are obeyed Desire for order, authoritarianism, as kind of a moral basis Positivisms fear o The purposive interpretation of law can go too far o No golf on Sunday, go to Church, Salute Hitler! o Fuller admits he cant prove it, or state it all that clearly, that once you admit purpose, there is not limit to what can be done under the guise of purpose, and it becomes unlimited, and the person who control the law then has unlimited power Fullers approach o The structural integrity of law Some sort of internal coherence o The role of purpose Law working itself pure, as this evolving, living things with an internal improvement purpose o Creative function of the judge Not arbitrary, but related to structural integrity and the role of purpose, and Mansfieds perceptions of law

DWORKIN, LAWS AMBITION FOR ITSELF (1985)12/1/2011 11:58:0

TWO QUESTIONS 1. What do judges do in applying law? o American Realists: whatever they want to do, their own preferences o Other: no there is a body of law, and they try to figure it out. Oracles of the law 2. Do homosexuals have rights under the US Constitutions? o Involves a navy member who was dismissed from the navy for homosexual behavior case that is the context of Dworkins work ADJUDICATION MODELS A. Positivism: judges must enforce only explicit provisions o When none exist, leave the decision to other branches of govt (exec, legislative) B. Interpretative model o Interpret law in line with consistent and communal moral

principles, especially justice and fairness

DRONENBURG CASE AND TEH TWO MODELS Dronenburg discharged from the Navy for private acts of homosexuality, he appealed to the courts o I have rights, freedoms, USA is a free country, my rights have been violated Dworkins interpretation of the case o Using a crude positivist model, Bork said: No mention of rights homosexuals in the constitutions, so they dont have any o Interpretive model Dworkins preferred method Use other laws also like civil rights legislation etc Identify the law in the neighborhood of the issue Look at other potentially relevant areas in the constitutional text - due process Relevant supreme court decisions

Courts privacy decisions in Griswold (vs. Connecticut re. contraceptive sale) and Roe (vs. Wade re abortion rights) What principles apply? Do the decisions enforce Mills harm principle? People are free to pursue life in public/private as long as it doesnt harm anyone else/individual sovereignty Are they based on the narrower ides that the state may no infringe procreative liberty

If Mills then Dronenburg has the rights he claims to have, its a change in law, but a change dictated by the law itself logic, thus judges arent legislators, they arent being arbitrary, they arent usurping anyones power If narrower then he does not For Dworkin o Mills harm principle provides the better justification since it states a recognizable ideal of moral independence o The second draws an arbitrary line o On the surface, Dronenburgs claim that the constitutional right of privacy extends to homosexuals is a change in the law, because the right is not explicitly mentioned in the constitution o BUT if you use the interpretative model Change would be directed by the law itself, existence of other laws would mandate that these changes happen,

self-perpetuation, logically follows that etc. WHICH IS TEH BETTER THEORETICAL MODEL In defending their model, positivists often appeal to skepticism about moral values o This strategy is self-defeating o Positivism rests on a theory of political morality The morality of deferring to Congress and the President, government, legislators etc.

WHICH

Since positivists and interpretivists BOTH say their own model best fits constitutional practice o some other test is needed o IS THE BETTER POLITICAL MORALITY? What is the political morality of the Unites States? Which gives us a better understanding of what America is? o Bork and positivists dont represent it at all The interpretative model and integrity The state must speak with one voice If Mills principle justifies abortion, it also justifies the privacy rights of homosexuals In Contrast - Bork o Borks positivist model is committed to the economic analysis of law, efficiency, wealth maximizations No interested in integrity, rights etc. o Sees other people as competitors with no sorority or fraternity Not were all in it together etc. A society dedicated to integrity aims at a community compatible with moral diversity o The model Dworkin favours o Americans debate justice They hope that no minority, race or sexual disposition will be permanently excluded

DWORKINS CONCLUSION Positivism is a bad theory of adjudication It denies fairness to unpopular individuals and erodes democratic community

RIGGS v. PALMER (1889): DWORKIN v. HART RULES, PRINCIPLES, DISCRETION 12/1/2011 11:58:00 AM
One of the areas where they disagree (Hart says yes in some circumstances, Dworkin says there is always a right answer) DECISION The law much not be interpreted to secure benefits to a legate who has killed the testator in order to prevent a revocation of the will FACTS Francis Palmer left his property to his grandson, Elmer, who (to prevent changes to the will) murdered his grandfather Grandsons plea: the will was made in due form and must be enforced Grandson convicted of murder, Daughters are contesting the will JUSTICE EARL, THE COURT The majority of the court says this is not one o 1. The construction of statutes must avoid absurd consequences Blackstone you must interpret statutes, they dont speak to you If they do have absurd consequences, you must read it in such a manner to avoid them going in that direction you dont attribute these absurd consequences to the legislators, treat as an intelligent, reasonable body o 2. Unreasonable to suppose that the legislature intends to favour someone who has murdered his ancestor This would negate the idea, laws of wills. Not to set up a murder racket o 3. All (statute) laws are controlled by maxims of the common law rooted in universal law Common law the original, statutes fairly new to the legal scene (1900s), so if most of the law doesnt come from parliament, its common law (the custom of the realm) The high court of parliament and its supremacy book on this topic Parliament acting as a judicial body

Statutes thought to presuppose the common law, and on the base of this law, you will get various statutes Cook (1610) the common law is immemorial custom, existing from a time out of mind Not true, many of the judicial customs date from certain times Appeal to universal law Common law is not against reason o 4. Our lawmakers regarded these maxims as known and didnt incorporate them into our statutes They were so obvious, that they didnt see the need to include them v Civil law system of codification (Emperor Justinian) Judges have a traditionally low position They are mainly administrators Common law the rule of judges are much more important Argument vs civil law The world is not like that, a code cant be perfect with every possible situation, the

code cannot accomplish what it seeks to accomplish because the world is too open ended Swiss example civil code, if it doesnt apply to the situation, then the judge will do there best to apply the law to the situation o 5. No law, human or divine, will allows the grandson to enjoy the fruits of his crime GRAY DISSENTING 1. Equity is not the issue o if it was the grandson wouldnt get the money 2. We are bound by the rigid and exhaustive rules of law established by the legislature o mechanical view of the judge o Earl disputes that the law is exhaustive, thats not how law works in a common law country

3. The will was validly made; the grandson is entitled to inherit under it o intention to revoke is not a revocation Obviously I dont think this is a good conclusion, but its a legal conclusion, and its up to the legislature to resolve it

SIGNIFICANCE Dworkin = Earl and Hart = Gray o Maybe not a totally fair pigeonholing of Hart Not being analyzed as an exceptional case, but rather is about how judges reason in common law jurisdictions Difference between the two is not whether what happened is right or wrong, but rather the role of the judges in the legal system Dworkin uses the case to cast doubt on modern legal positivism o Law is not a system of rules, but includes principles and other standards In Riggs v. Palmer the courts relied on a principle to limit a rule and to arrive at a decision that, by itself, the rules would not yield o By itself the statute would not have yielded the same result, and invoked part of the common law The judge did not exercise discretion in the strong sense, o he simply applied the law which includes legal principles, o weak discretion, using the applicable information/setting appropriately Law is not a system of rules, and there is not master rule by which all the rules and principles of a legal system can be identified o Master rule = rule of recognition (when is a law a law) o No simple master rule that tells them the core of the legal system o Its process of argument, reason etc. Since Dworkin believes that principles fuse legal and moral considerations, positivisms attempt to separate law and morality also fails

CONCLUSION Dworkins critique of Hart and positivism o Rules, discretion, law/morality, Similarly, Dworkin on The Chain of Law in Laws Empire: Dickens, a Christmas Carol and Scrooge

HARTS POSTCRIPT (1994): REPLY TO DWORKIN12/1/2011 11:58:0

Post-mortem publication 1. THE NATURE OF LEGAL THEORY Is a descriptive legal theory possible (Hart) or must a theory of law be necessarily interpretative and evaluative (Dworkin)? Understanding may require the insiders point of view, but this point of view is itself open to description and criticism. o Descriptive legal theory is possible, because you can understand the point of view, without having it o Insiders point of view can be critiqued Much of what law does is neither moral nor immoral o Eg. Driving on left/right side of road 2. THE NATURE OF LEGAL POSITIVISM Harts theory is not exclusively a pedigree, or source, or origins theory of law o Rule of recognition may incorporate substantive moral values into law and some constitutions do Equality provisions (like the charter) o Moral principle rules arent there because they are moral, but because the system allows for them o Law CAN have moral content, but it doesnt NEED it Is this then soft positivism and o Is soft positivism consistent because it can no longer guarantee legal certainty o Isnt legal certainty important for positivism Harts reply: a margin of uncertain is consistent with the multiple aims of law 3. THE NATURE OF LEGAL RULES Does law as a system of rules exclude principles? o This is Dworkins argument Harts reply: No, but Hart should have said more about principles o One concession that Hart makes to Dworkin Rule of recognition can acknowledge principles o Hercules v. Herbert Rule of recognition is required if: o Principles are to be used because they are taken from settled cases and settled part of the law and extended to other cases

o To know what the law is, then we can look at the law, and we derive principles FROM this Law is not a pure interpretative or Herculean enterprise o We may have Hercules, but he still needs a rule of recognition and relevant information

4. LAW AND MORALITY Hart: law and morality are contingently connected o Dworkins holistic approach is faulty Even Dworkin admits the possibility of a legal system whose political morality is evil and recommends internal skepticism in regards to it Nazi law is law, but it doesnt meet the standards of evaluation He says that that doesnt mean that positivism is true, despite that everything Ive said can be said by positivist from there perspective Dworkins theory is not formulated in the context of Nazi law, but in totally different circumstances, but the

problem is he tries to 5. JUDICIAL DISCRETION (strong discretion, there is a point where the law runs out Dworkin denies this) Dworkin: there is always a right answer and judges reason as if there is a right answer Harts reply: o A. self-description is not conclusive o B. some judges have acknowledged discretion Eg. Holmes and Cardozo o C. discretion does not mean arbitrariness A point comes when analogies run out and a choice has to be made Legal considerations, precedent etc. dont always apply directly, and the judge must make a decision o D. constrained judicial legislation is not incompatible with the aims of democracy It is the price paid for legal constraints on government

If you want democracy and rule of law, youre going to have to tolerate a certain amount of judicial legislation, thats just the way the world is o E. judicial legislation as ex post facto law (people dont know what the law is, it is then made up, and applied retrospectively) Hobbes says: one of the great failings, its not law, but a declaration of war on the subjects Yes Its unavoidable, you may have cases of it thats just the world that we live in criticisms would also apply to Dworkins theory (?) o in hard cases there are no settled expectations, you wont know until its announced. There is no Hercules, no super-human judge o It would be silly to say that we are subjects of Hercules, and that all judges agree Hercules No Most of law is determative, it doesnt go the supreme court etc.

LIBERAL JUSTICE & THE COMMUNITARIAN CRITIQUE: RAWLS AND SANDEL 12/1/2011 11:58:00 AM
SIGNIFICANCE OF RAWLS A THEORY OF JUSTICE (1971) (aka why hes important) A theory, works for a liberal democratic type of society, doesnt try to apply to all situations as a be all end all The decline of political theory o Historicism, Value relativism, Scientific positivism All reasons for why the study of political theory was in decline, while the approaches were considered to be ok for the olden days, now people had moved on and were more sophisticated Modernized liberalism o Rawls on justice as fairness, equal citizenship and pluralism o Rawls and the liberal democratic welfare state Writing in the context of trying to understand the New Deal o The later Rawls Best known for political liberalism Dispute if early Rawls is the same of later Rawls CRITIQUE OF UTILITARIANISM Important because this was the dominant theory on the West for a long time, and continues to be in things like economics cost/benefits and political policy Bentham everyone counts for one and no one for more than one o Was a reformer in aristocratic England, fairly radical idea at the time o The right policy maximizes utility for society Rawls: o Fundamental flaw in utilitarianism is that it neglects the distinctness and plurality of persons Not concerned with individual utility, but aggregate utility o The importance of individual rights Dworkin also

JUSTICE AS FAIRNESS what is it?

Definition: the principles that free, equal and rational people who want to further their own interests would accept in an original position of equality. The Veil of Ignorance o No one knows his place in society or his fortune in the distribution of natural assets such as intelligence or even what his conception of the good will be People will choose two principles o 1. Equal liberty o 2. The difference principle

EQUAL LIBERTY what is it Each person has an equal right to the most extensive liberty compatible with a like liberty for all o Not liberty at the expense of other people Rawls rejects the caste system and religious intolerance because they are incompatible with equality in the original position o They arent things that can be authentically chosen from a position of equality o Being in a position of intolerance means that you dont understand religion Life plans o Rawls and JS Mill

DIFFERENCE PRINCIPLE Social inequality must work to the advantage of the least well off Rawls rejects utilitarianism (total aggregate utility) and socialism (radical egalitarianism) o Certain types of socialism are forms of envy they dont want to see anybody better than they are, so they want to bring them down to the same level o This is why he is okay with certain markets Social inequalities resulting from the market are acceptable IF there is: o Equal opportunity (limits inequality) o A guaranteed social minimum (limits inequality)

o Redistributive economic politics which minimize the effects of the natural lottery of talents (take from the rich, give to the poor) You dont 100% deserve what you have, we have no control over the traits that we have and arent responsible for, and the usefulness of them depend on the social structure, which we are also not responsible for Society that recognizes equal liberty and the difference principle has a legitimate claim to our allegiance because it respects our sense of fairness. SANDEL AND TEH COMMUNITARIAN CRITIQUE Rawlss core thesis is that a just society does not seek to promote any particular end, but enables its citizens to pursue their own ends consistent with the liberty of all o Rawlsian liberalism privileges the right over the good in two ways: 1. Individual rights cannot be sacrificed to promote the general good 2. Principals of justice that specify these rights cannot be premised on any particular vision of the good life

Rawlss vision is both inspiring and self-defeating. Vision of Promethian freedom, the individual can chose for themselves, autonomous being, not dependent on others to tell you what to do Problem: o Relies on an unencumbered self, which chooses all its ends and commitments o Such a self makes deep commitment and community impossible Friendship, membership in a community is lets make a deal. Your membership in your community is not part of who you are. Too shallow.

o The unencumbered self also conflict with Rawlss difference principle and his natural lottery of talents, both of which depend on the idea of community rather than individual choice Rawlsian liberalism implicitly reveals the sick society that America has become. SANDEL: Civic republicanism in small communities is the best alternative and the corrective to Rawlsian liberalism

LEGAL & POLITICAL OBLIGATION

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WHY OBEY Prima facie v. absolute obligation o Absolute it cannot be overridden Hobbes, you cant pick and choose o Prima facie not absolute, and there are circumstances where it can be overridden Eg. Obligation to help a friend move, but when a child becomes sick, taking care of them may take precedence Prudential v. moral obligation o Prudential It makes sense to obey, because theres a $2000 fine, and theres no chance of avoiding it o Moral Obligation Moral rightness of obeying, not just an issue of power etc. Harts internal point of view o Using command theory doesnt let you get to internal POV Fair play and mutuality of restriction Other people need to obey it too If all obeying produces benefits for everyone, then you also have an obligation to obey Difference between the validity and efficacy of law Holmes bad man

RP Wolff o In Defence of Anarchism 1970 There is no obligation to obey the law, except under very specific situation 1. Principle of individual moral autonomy 2. Authority the state tells you what to do o This conflict between the two is only resolved through Unanimous direct democracy only time you have the obligation to obey o This doesnt happen in the real world very often o Conclusion if you agree with the law, you are obliged to obey, if you dont you are not, because that would violate #1 o Book is in defense of philosophical anarchy

SOCRATES IN PRISON: PLATOS CRITO first discussion of obligation to obey the law in western thought, about Socrates trial and death. o After the trial he is found guilty of corrupting the youth and lacking piety o Socrates to philosophize is to prepare to die, because the body gets in the way of philosophy The god accusation if false, because that isnt what he philosophizes about, he brought philosophy down to earth and made it relevant Corrupting youth accusation false, he instills the need to analyze and think. People were resentful of this because he encouraged people to ask why Crito tries to convince Socrates to escape v. staying and accepting death. Socrates decides to stay because: Absolute obligation to obey that law: o A. disobedience as destruction A city cannot continue to exist if its laws has no force If I can disobey, everybody can, and where does that leave us o B. citizens have tacit agreement with the state to obey its laws based on continued residence o C. the state as parent If your parent wrong you, can you attack your parent? Socrates says No. o D. Benefit argument The state provides education etc. Obedience is owed in return Question: even if you accept that you owe that state something why does it have to be obedience? Why not something else?

Problems o Socrates, if you accept death, you will go away a victim of the injustice, not of the Laws, but of men Implications?

No unjust laws, but unjust men so by going to death, obeying men not laws Confronts the whole basis of Socrates arguments o Socrates is not especially sympathetic to democracy Democracy is a bad word in much of the history of philosophy Based on peoples opinions, which are always in flux ENTRE DEMOCRACY Does democracy change your obligation to obey the law? Singers arguments: democracy gives us a prima facie obligation to obey the law, not exclusive o 1. Fair compromise because democracy respects political equality since no one can claim special wisdom, and since appeals to power are morally problematic the one person, one vote principle confers legitimacy on democratic decision-making o 2. Quasi-consent participation in an election and the beer drinking analogy eg. Prof says will meet you all at the Pit, 20 people show up. Student X gets first round, Student Y says theyll get the second round and so on and so fourth. Prof at the end after 14 rounds, says thanks and leaves before the time to buy their round Should offer to buy another round It became apparent that the activity was buying rounds, and you have an obligation to reciprocate. Obligation based on participation in round-buying to also buy Extends to elections. The purpose of elections is known, and you participate in that election. Conversely, if you dont Voting creates a prima facie obligation to obey the law

Extends to elections. The purpose of elections is known, and you participate in that election. Conversely, if you dont vote, not obligation to obey

Limitations o The real world of democracy has problems Inequality of power Money, connections, influence etc. v. those who are disempowered. No fair compromise here, because not everybody is equal Permanent minorities Ineffective, scare participation o Problems created for democratic legitimacy o Singers Partial reply In the real world, some of his arguments may not apply, like voting as a fair compromise BUT still if you actually vote, you have an obligation to obey The only way out is to not vote. The system is not fair, therefore I wont vote, participate, accept the election as a basis for our fair compromise

RAWLS

ON DEMOCRACY AND CIVIL DISOBEDIENCE Theory of Justice 1971 Rawls and the original position Rawls two principles o Equal liberty o The difference principle Against utilitarianism o Justice as fairness Equal citizenship o Utilitarianism isnt concerned about the individual, but about aggregation

Only in a more or less just democracy do citizens ask, what are the limits of majority rule? o Because democracy may not meet all the requirements of justice o May be happy with the system as a whole, but very concerned about parts of it Right track w/ significant problems that need to be addressed Civil disobedience is: o A public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in law 1. It presupposes a public conception of justice o solves Hobbes problem of practice of justice o eg. Appealing to the American dream in fighting for equal race rights 2. done in public, comparable to public speech o not criminal activity, but speech to get publics attention 3. Non-violent based on its mode of address and its concern for fidelity of law o Appealing to peoples reason, not to their violent instincts to protect themselves against other violence Fucntions of civil disobedience o Plea for reconsideration o Halths the escaltion of injstice and diminishes the prospect of revolution

o Contraty to law byut morally corredct way oamaintaining a constitution regime CONCLUSION not those who disobey, but those who use the state to promote injusticea re at fault Perhaps o HObbess view Finally, is ther a reply to RP Wolff?

GENDER, CLASS AND LAW: MACKINNON12/1/2011 11:58:00 AM

SIGNIFICANCE: Towards a Feminist Theory of the State 1989 Criticizes the liberal state, modifies Marxism, rejects competing feminist theories o Modifies Marxism because it doesnt go gar enough o Not all feminists are one big happy theoretical family Political realism o Distinguish her from Marx, because Marx has a utopian element, especially when talking about the outcome at the end, where all societys problems are solved Class for Marx, Gender for MacKinnon o Minus the utopia element o More linked to Machiavelli and Hobbes o No final resolution involved LOCKE TO RAWLS Like Marx, MacKinnon criticizes liberalism o Liberal focus on the individual upsets Marx and MacKinnon Cant get out of think be invoking different brands of liberalism o Lumps all liberals together, and dismissive of them The separation thesis o A human being is physically separate from other human beings Rawls on the distinctness of persons o Example of the separation again o His critique of utilitarianism is that it doesnt deal with individuals, but look at the overall aggregate The separation thesis and ideas about law and the state o The Night Watchman Keep the state to minimal functions, because the state is coercive, interferes with individual lives, becomes paternalistic o Continue from the moral sphere to the economic sphere o Marx and MacKinnon view this as problematic Mill and Locke

MARXISM Some thoughts on what she would accept or change Natural rights a sham o The liberal state is a committee of the ruling class o Natural rights of the capitalist man Thus in the interest of the bourgeoisie and not the common working man Class conflict replaced harmony of interest o Looks at Liberals like Adam Smith who talks of a harmony of interest, where things work out and everyone is better off o Marx: disagrees with Adam Smiths argument Class-in-itself and for-itself distinction o Concern in British politics Conservative tories vs. labour Tories are in power more of the time, which doesnt make sense with universal suffrage etc, you would expect labour to be in power more to reflect the greater number of working class voter o Labour was a class in-itself, but not for itself They didnt know their own interest Taken in by the queen, conservative ideals etc. o You can talk about groups as classes, but they may not act in accordance with that class, and in fact act against there best interest Marxist solution to how you get people to rebel o Thats the idea behind the communist party o Enlightened group that sees the real interest and is able to direct the proletariat in the appropriate direction to act in their best interest Marxist critique important, but requires modification, says Mackinnon o Concept of not acting in your best interest is a reality that all theories will encounter

FALSE FEMENIST VOICES JS Mill & Harriet Taylor

o Liberal feminism o Equal rights for women, last bastion of prejudice that women are viewed as inferior o Men and women should have the same rights, should be gender blind in treatment etc. and carry on o Mackinnons take: Not treating people equally Judging women under male categories The definition might be a male definition In order to succeed women sometimes have to look like men etc. Game open to men and women, but the rules are mens rules Carol Gilligan In a Different Voice (the voice of women) o Cultural feminism Community roles and responsibilities o Womens ethics of care as the product of male dominance Women act the way they do because of male dominance o Mackinnons take: Ethics of care a male ideology forced on women To mens benefits to have women take on the role of care, so that they dont have to Women buy into this false consciousness ALLURE OF LIBERALISM Neutrality (Dworkin) and equality (Dicey) o Neutrality - People have the freedom to chose what life is best for them, all is possible, up to individuals what they would like to pursue o Equality The rule of law is the promise of equality Liberalism doesnt live up to its ideals o The ideas may seem attractive, but in practice they are quite harmful MacKinnons Counter Thesis: Men as a class have political power over women

How does oppression occur? What is the evidence? Why is liberalism false? o 1. The liberal state has the appearance of neutrality exploitation of women does not take place directly but through civil society and the private realm peoples still getting the rough end of the stick, but they arent getting it from the state, which seems sympathetic the state is deceptive in its neutrality, avoids the issues of real discrimination etc. Relative autonomy of the state May be controlled in some sense by capitalists, but also means that it can sometimes be sympathetic to workers (welfare, rights etc) exploitation does take place despite democracy and laws that should be neutral etc. Marx predicts: eventually people have no choice but to rebel because things have gotten so bad, when the workers rebelled, the capitalists would send out their security and force the workers to move Incredible tension that would eventually destroy itself This didnt happen in real life problem for Marxists. WHERES THE REVOLUTION? Welfare state Police would often be relatively nice, and not just beat people over the head, but follow the legal process Best you can get it socialism, not good enough for Marxists Developed the idea of the relative autoomy of the state o 2. The rule of law is biased against women its false universality hides male values what are male values? the doctrine of state action works against women

for the something to be considered wrong, there must be some explicit action by the state, or you cant do anything works against women because most problems for women are in other, non-state sectors of society, and they cant show state action in this situation as a source of trouble/solution o 3. Negative freedom (Berlin) Negative freedom: freedom to be left alone etc, hands off type of freedom Freedom for women means positive freedom and state regulation of the private realm Eg. Daycare provided. Without daycare, women are not free to pursue their careers etc. Thus need some form of positive state action to ensure freedom o 4. Men enslave men by means of law Women are enslaved through civil society and the private realm, which makes their oppression worse Its more covert, thus harder to detect and harder to fight FEMINIST JURISPRUDENCE A. Consciousness raising (Rousseau) o Class in-itself, for-itself concept, in defiance of false consciousness B. Radical Marxism isnt enough o It allows the continued exploitation of women in the private realm and civil society o Free men can still be exploited between men and women outside of capitalist/worker dynamic eg. Time on house work and impact on rest of life o Cleaning up capitalism doesnt get rid of these problems C. Women must fight for the laws that promote their interests (there is something called womens interest and they must fight for them) o Cant expect men to fight for them, see as issues etc.

Marital rape Pornography Reproductive freedom D. The extent feminist law embodies womens point of view, its law is not neutral o Not claiming its neutral, its from a distinctive point of view, so inherently NOT neutral But existing law is not neutral either Why should we listen to this interest group? Because its not neutral now, thats just the way the world is

o Not where it will stop, but whether it will start for any group but the dominant one Up until now youve only heard one voice, and interpreted it as the neutral voice of law, when in reality its not, its just the only voice heard CONCLUSION MacKinnons political realism in gender relations o The rule of law is illusory, the quest for harmony is utopian Youre never going to have it, because the world is made of up different interests that will be in contention with each other o Realists Machiavelli, Hobbes MacKinnons view that this is the way it is. Thats all Puts her in company of traditional realists Women need constant vigilance, dont get taken in, this is a hustle, a form of slavery Machiavelli The price of liberty is eternal vigilance Exam original, informed opinion of the material covered up until this point in the course, it is possible to do very well, can also do poorly. Know the material, some creative opinion within the context of the material. No surprises.

TOLERATION AND PERSECUTION

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THE LOGIC OF PERSECTUTION J.F. Stephens view in Liberty, Equality, Fraternity (1873) o If our notions of right and wrong are true, then the use of force to promote them is justified Plato too August Comte and the science of society Justice Holmess famous analysis in Abrams v US (1919) as one reply to persecutors o Holmes has a revelation, reading Millss on Liberty, many people wrote to him and felt that it was too supportive of the state and allows for too much suppression o The logic of censorship: if you are absolutely sure of your premise, and you have the power, then you can do what you will. However, in many cases where we thought we were right, we were in fact terribly wrong. Test of truth vindicate the free market of ideas LOCKE AND RELIGIOUS TOLERATION 1. Motivation and Persecution o the word of God is used as a pretext people who say they engage in persecution because its what god wants them to do use god as a cover o real motive is power arent really religious people at all, but use it as a means to an end (power) 2. Separation of Church and State o Church and State have different sanctions(methods to achieve) and different purposes The State takes care of mens civil interest The Church takes care of mens souls o Church is a voluntary association Sanction is expulsion o State is not a voluntary association State can put your in prison o State has power, but politicians are unlikely to know religious truth

The Church may know religious truth, but they dont have the power of the sword, so it cant enforce it The State does have the power of the sword, but what it the likelihood that politicians are politicians because they know religious truth o Aristotle-like critique of Plato there are different types of associations 3. Only uncoerced, sincere belief is agreeable to God o if forced belief in unacceptable to God, then we should not persecute others 4. Belief cannot be coerced o belief depends on the understanding which responds to the evidence o it is pointless to persecutes others, because truth is not spread by persecution belief doesnt depend on coercion solution is not suppression, but more speech to teach others o alternative: because belief relies on information rather than coercion, then one must control the information very tightly 5. Toleration and equal rights o if others should tolerate you, why shouldnt you tolerate them? Most people with religious beliefs believe they are good people and should not be persecuted 6. Benefits of toleration o most people want peace and economic prosperity to secure them requires tolerance

LIMITES OF TOLERATION Locke says some people Catholics and Atheists are not to be tolerated as they cold beliefs contrary to human society. o Catholics allegiance to a foreign power (the pope) who may want them to turn against England to regain it for the Catholic church o Atheists have no reasons to keep their word etc. because they have no fear of punishment from god

Other views? o Mill, social intolerance, and the harm principle. o Concern is democracy, and that a democratic society has become intolerant, mass society, mass opinions, mass intolerance From Mill to Hart and Devlin

IS IMMORALITY TREASONABLE? LORD DEVLINS VIEWS, 1959 12/1/2011 11:58:00 AM

BACKGROUND: 1957, Wolfenden Committee recommends liberalization of the criminal law in relations to homosexuality and prostitution The Committee said there was a private realm that was not the laws business, where individuals should be free to act provided they caused no harm to others On Liberty Devlin disagreed o Society has the right to punish violations of its moral code FOUR POSITIONS That society has the right to enforce its morality is not new, has been the fall-back, default position over human history 1. Classical theory of moral perfectionism o Plato on moral truth and the duty of the state to enforce it Opposite of Locke (state is there to protect civil interest) 2. Theory of moral conservatism o Burke. Enforced because it is our morality 3. Theory of disintegration o Society and its morality are identical o Immorality is destructive of society Immorality as treason (attempt to overthrow society, and should be punished as such) 4. Religion, morality and law o sin and crime, Christian morality o in a world without Christian god, things like human rights will continue for a while, but all is doomed eventually o secular society is eventually doomed PUBLIC/PRIVATE DIVIDE (challenged by many incl. radical feminists) Devlin challenges it/Responds to Wolfenden Committee, thinks that by following their recommendations, it will be bad for everyone. Special problem with the Committees divide between public and private

1. Impossible to draw a neat line o What is virtually everyone constantly got drunk in private? o Society would be justified in taking action Controversial example, because not entirely self-evident what it means 2. Law constantly interferes with out private lives, and most of us applaud its intervention o examples: Suicide, euthanasia, dueling

DEVLINS MAIN ARGUMENT A shared morality is the cement that holds society together o Without shared ideas of morality no society can exist If so, society is entitled to protect itself against immorality just like its entitled to protect itself against treason or a foreign enemy Devlin is not saying that society has the right morality o Society is entitled to enforce its morality right or wrong (unclear what he means by right or wrong, other than its not open to refutation or debate)

TOLERANCE Society should not punish all immorality, only that which it is incapable of tolerating, otherwise freedom would be completely undermined Determine if/how/when the limits of tolerance have been reached o 1) if an act is regarded with reprobation, indignation, and disgust really strong reaction o 2) if society has made a judgment that the moral practice is injurious THE REASONABLE MAN Who decides when immorality should be punished? o Everyone? A public opinions poll? Religious leaders? The most rational? Devlin says no.

o It should be the man in the jury box, the man in the street, the reasonable man. The concept of a reasonable man to the common law is central to the concept of the jury in common law. He is not a great intellectual, he does not reason about morality. He knows instinctively what is right and wrong. o But he also offers no explanation for deviation Remember, Devlin is not a creative social scientist, he is a lawyer coming from the common law tradition

HARTS CRITCISMS: A) Devlins idea of morality is flawed o What does it mean to have a moral position? o Critical versus conventional morality B) Devlin confuses treason and moral change o Moral change does not destroy society

DWORKINS CRITIQUE OF LORD DEVLINS IDEA OF DEMOCRACY 12/1/2011 11:58:00 AM

MORAL POPULISM AND DEMOCRACY: In democracy and morality Devlin suggested that his argument about the enforcement of morals was a vindication of the democratic ethos o Democracy does not mean that men are born with equal brains but that they have at their command the faculty from telling right from wrong o A free society is not an intellectual oligarchy TAKING DEVLIN SERIOUSLY Using homosexuality, Dworkin restates Devlins argument o 1. If homosexuals indulge their desires, our social environment would change o 2. Legislators must decide whether heterosexual marriage is sufficiently valuable to protect it o 3. The issue cant be decided by appealing to science or religion however, if the bulk of the community agreed, then the legislator should act on the consensus because the issue must be decided on some moral faith, and in a democracy it is consensus that works A MORAL POSITION: DWORKINS RESPONSE The problem with Devlins argument is that it fails internally Devlins conclusions are invalid, because he misunderstands what it is to disapprove on a moral principle People who disapprove need reasons. But not every reason will do: o 1) If the reason is a mere prejudice homosexuals arent really men o 2) if it is an emotional reaction: homosexuals make me sick o 3) if it is based on am implausible proposition: homosexuality is debilitating. o 4) if I can only cite the beliefs of others: everyone knows homosexuality is a sin.

Not even those who despise homosexuals would claim that no adequate reason is needed o They believe that they do have an adequate reason for their beliefs.

DEVLIN AND DEMOCRACY Devlins argument might be plausible if he relied on moral position in the critical sense. But he doesnt o Says the ordinary man is not expected to reason and his judgment may largely be a matter of feeling Devlins conclusion fails, because it depends on this anthropological sense. The two criteria for when morality has been breeched, really are redundant, as #2, will almost never happen without #1 having been affected before it gets to number 2. A legislator who is told there is a moral consensus must test that consensus o What is shocking and wrong about Lord Devlin is not his idea that the communitys morality counts, but his idea of what counts as the communitys morality o Dworkin agrees that community morally is important and should count, but we need to be careful about what community morality is. o Testing a consensus isnt moral elitism DEVLINS REPLY The exclusion of the irrational is usually easy. For the difficult choice between a number of rational conclusions, the ordinary man has to rely upon a feeling. Reasoning will get him nowhere. o Rationality and reasoning will only get you so far, eventually you need to defer to certain moral central beliefs, moral ulitmates In Trial by Jury Devlin wrote o Each jury is a little parliament. Trial jury is the lamp that shows that freedom lives.

o If you dont like my theory, you dont like the jury, which means your dont like parliament, which means you dont like democracy Devlins reply is that he has faith in the common people, in their feelings of right and wrong. Morals and the criminal law again.

Dworkin - there are ultimates, but homosexuality isnt one of them

J.S. MILLS ON LIBERTY (1859)

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SOME MILLIAM THEMESE Over himself, over his own body and mind, the individual is sovereign o Key statement, critique of paternalism, moralism etc. o People can only interfere if your actions harm them in some way The tyranny of custom o Custom can be thoughtless, and people can just go along without thinking, simple acceptance More concerned with habit rather than the danger that custom may be discriminatory etc. Experiments in living; The higher and lower pleasures pushpin is not as good as poetry; Romantic rather than bourgeois individualism o It is better to be Socrates dissatisfied than a fool satisfied Proportional representation and plural voting o Reply to Plato, whose concern was that democracy would be the rule of the ignorant o People with unique abilities etc, even though they form the minority, would still be represented Peoples votes may be weighted differently based on different traits etc. Sexual equality and the marriage of true minds o As humans beings progress, sex differences will recede Why isnt there androgyny? Grapples with this problem o Separation between men and women is good because they might have slightly different sensibilities, if they are so different, can they understand each other? His visions of the future o Liberalism, socialism and the improvement of mankind o For socialism to work, people would have to be a lot better than they are now, because people are selfish etc. Mill and Locke o Locke as beginning of liberal tradition, and natural rights theorist. o Mill founds liberty on utilitarianism controversial claim

Mill and Rawls o Rawlss liberalism is not linked to a specific way of life, while Mills is Rawls tolerance of all sorts of ways of life, and liberalism allows for it all Mill liberalism only allows/depends on a certain way of life

LIERTY OF THOUGH AND DISCUSSION The lone dissenter. Dont silence him. He might be right; even if wrong, the benefit of showing that he is wrong by rational arguments. Also, freedom allows the whole truth to emerge from partial truths there may be an element of truth that we should be careful not to dismiss A) FALLIBILITY ARGUMENT Fallibility you can be wrong, but also be right. Skepticism there are things that we cant know. o Sometimes referred to the skepticism argument, perhaps not accurately Human beings make mistakes. Claims about truth have been used to justify persecution, but they turned out to be mistaken. o Socrates and Jesus o Marcus Aurelius stoic Persecution of Christians, if even he is able to make mistakes, the closest example of Platos philosopher kinds, then he is a warning to use to be careful, or we can end up licensing and promoting evil in the world Someone so smart, can end up doing such wrong, the rest of us have little hope 1. One way of discovering truth or at least of exposing error is by exposing our ideas to the severest criticism. o Popper on falsification in science Distinguish meaningful statements, are statement that you can verify Science is made up of verifiable statements, verification principle

Science different from things like religion, ethics and morality, which were full of statements that your couldnt verify Aka Demarcation principle Not true because science is always coming up with things that end up being false when we have further information 2. Since human beings are fallible, they can have rational assurances that their ideas are right only if they allows these ideas to be subjected to criticism o if you are confident in truth, no fear of criticism Question: Surely there comes a point when we can say that an idea is true. Fallibility is not skepticism. If so, can we put an end to discussion at that point? o Auguste Comte Science of society (sociology) o Mill says no Believes in the science of society, but rejects Comtes theory that then society can then jump in an enforce these truths

B) HUMAN UNDERSTANDING - what it is to have an idea however true and opinion may be, if it is not fully, frequently and fearlessly discussed, it will be held as a dead dogma, not a living truth. Memorize received truths? Keep it simple, give me the core/brief o Mill doesnt like this idea - truth, thus held, is but one superstition more There is also a loss of the meaning of truth, if all you are doing is memorizing, how do you know what you memorizing is in reality, its importance etc. Mill people are taught Christian precepts of charity but dont act on them. Socrates on truth as a personal discovery which has the power to change out lives o Only if we discover the truth ourselves will it have meaning for us

Mill: If opponents of all important truths do not exist, it is indispensable to imagine them The Devils advocate

C) PARTIAL TRUTHS Human beings are usually in the realm of partial truths Most opinions are neither true nor false, they embody part of the truth o They embody part of the truth Mills example o Rousseaus critique of civilization contained falsehoods as well as insights. Rousseaus praise of individual authenticity and his condemnation of social hypocrisy. Civilization magnifies social inequalities, man is a follower, life determined by what you see around you and what other people want Disagrees with the aim for a Spartan ideal Half-truths are common in politics o So avoid suppressing even apparently false views on the ground that they are likely to contain half-truths o Case for avoiding censorship and oppression Intolerance can lead to the intellectual pacification/chilling effect of society o People are scared to make statements, so people become much more cautious, even with legitimate statements/arguments Pagan self-assertion rather than Christian withdrawal is the desirable human ideal

o The individual has to get out there Mill and creativity o Mills elitism Higher/lower pleasures All this only applies when people dont have to deal with the more mundane, necessary aspects of life and survival (vs. the Lone dissenter) CONCLUSION

Who should care about Millian liberalism? According to Mill o Everyone has the potential to do this, but some reach it more that others o Utilitarian these people discover things, lone dissenters can be asset to society and everyone in it

ONLY WORDS (MACKINNON): SEXIST PORNOGRAPHY AND THE RIGHTS OF WOMEN 199312/1/2011 11:5
IN PRAISE OF REGINA V BUTLER, 1992: The Canadian Supreme Court held that hard core pornography which combined sex with violence, and which degraded women, could be restricted under section 1 of the Charter o MacKinnon a stunning legal victory for women CRITICIZING AMERICAN BOOKSELLERS A) in contract, MacKinnon criticized American Booksellers 1985, a decision which struck down the feminist sponsored Indianapolis Ordinance by appealing to US v. Roth 1957 o Roth: obscenity is not speech; the prurient interest (lewd, wanton): utterly without redeeming social importance. o However, ideas having even the slightest redeeming social importance are protected o Because Indianapolis Ordinance referred to the restriction on the base of its portrayal of women, rather than appealing to the prurient interest and obscenity B) Radical feminists wanted to censor sexist pornography because of its message, but o Judge in American Booksellers free speech protects the speech we like and the speech we hate (Holmes) o The Ordinance was not content neutral, yet the Constitution commands the state not to take sides o Ordinance did not allow for the defense of artistic, political or scientific value o Sexist pornography can be censored if it is obscene It cannot be censored if its message is powerful and hateful this would make free speech impossible o Liberal view of free speech and the US constitution PORNOGRAPHY AND POWER For MacKinnon, American Booksellers mistakes the character of sexist pornography shouldnt be looked at through the obscenity lens

o Sexist pornography is about politics, about an imbalance between the powerful (men) and the powerless (women) o Not about debate and information Erotica and equality o Not a prude, but there is a defense between erotic and obscenity o Erotica pleasure, equality o Pornography not about equality, but about power

HARM American Booksellers underestimates the harms of sexist pornography (the only harm that liberals understand is getting run over by a truck) o Sexist pornography constructs a reality that disempowers women and dismisses them as inferior Harmful ideology Social inequality is substantially created and enforced through words and images Other harms follow: o A) More violence against women o B) Discrimination in the workplace o C) Women are silenced FREE SPEECH American Booksellers fails to grasp that pornographers are not an oppressed minority whose free speech must be protected o Pornography is big business o It exploits womens sexual and economic inequality for profit Andrea Dworkin in Against the Male Flood: o Pornographers are the instruments of terror not its victims. They are the secret police of male supremacy

ALTERNATIVE FOUNDATION MacKinnon pornography should be judged by the 14th Amendment (equal protection) rather than the 1st Amendment (free speech)

o Problem is not the constitution, but the judges when they decide how to apply the constitution, so a matter of understanding CONCLUSION Only words? Hardly. Society is made up of words, whose meanings the powerful control. Subordination is doing someone elses language thinking/words are controlled by those who control the language, participating in society means you participate in the framework that is set up for you.

PORNOGRAPY AND THE LIBERAL STATE: RONALD DWORKIN, 1991 12/1/2011 11:58:00 AM
Response to radical feminist view/approach re. pornography, against MacKinnon MACKINNON Dworkin defends liberal positions that MacKinnon repudiates He endorses American Booksellers Defends a right to pornography BEFORE LIBERALISM Hicklin 1868 o Obscene it its tendency is to deprave and corrupt Liberals opposed Hicklin o Hicklin turned everyone into a child, and those only things that people read were those that were appropriate for A childs library, dont punish taste Children need censorship when it comes to reading, but adults have the ability to make decision about what is in their self-interest (key tenant of liberalism) SEXUAL REVOLUTION Hicklin repudiated in 1950s Changes in social attitudes Commission on Obscenity and Pornography (USA, 1970) o Criticized the inability of people to be open in dealing with sexual matters o Government shouldnt prevent adults from viewing explicit sexual material Libertarianism

PORNOGRAPHY AND HATE Critics argue that the questions of pornography is not synonymous with Victorian prudery o Not as pornography and liberation The message of pornography as hateful/hate speech o Canadian R. v. Butler does define parts of it as such

Even apart from sex crimes, the public sale and display of pornography pollutes the environment and adversely affects the quality of life o Not radical feminist argument, but a Conservative one, unusual alliance

DEFENDING AMERICAN BOOKSELLERS A) That much pornography is hateful is a view endorsed by Dworkin o Where he disagrees with MacKinnon is with respect to the appropriate response o Regulation v. prohibition B) Pornography causes a systemic subordination of women o Dworkin: it would plainly be unconstitutional to ban directly advocating that women occupy inferior roles. So it cannot be a reason for banning pornography that it contributes to an unequal social structure. C) Dworkin: although sadistic pornography is revolting, its influence is far more limited that the sexism of soap operas o If you had to monitor everything, most people would find that unacceptable, because it would mean that government was everywhere D) Pornography silences women o Dworkin: Freedom of speech, conceived as negative freedom, is the choice modern democracies have made, and we must honour that choice in combating the shaming inequalities women still face o Contra positive freedom This would mean that the government would have to regulate everything MORAL INDEPENDENCE Is there a Right to Pornography? o Dworkin says Yes The strongest arguments in favour of allowing Mein Kampf to be published hardly applies to Sex Kittens o A different justification

The right to moral independence i.e. people should not suffer disadvantage because others regard their way of life as ignoble o A right to pornography from moral independence follows from the right to equality DWORKINS CONCLUSION The price of freedom and equality is toleration of the speech we hate.

EQUALITY AND THE LAW: THREE VIEWS12/1/2011 11:58:00 AM

1. UK, Dicey, Law of the Constitution 1885 Classical British View Sovereignty of Parliament rule of law conventions o Under what circumstances and what conditions is X allowed to occur (conventions) o Theory of equality is part of the rule of law Rule of law means: o A. no one is punishable except for a distinct breach of law arbitrary or discretionary powers are unacceptable o B. no one is above the law; hence, legal equality, or universal subjection of all classes to law o C. individual rights are the result of ordinary judicial decisions on ordinary law 2. USA, TUssman and ten Broek The Equal Protection of the Law , California Law Review, 1949 14th Amendment: no state shall deny to any person...the equal protections of the laws o goes against the power of the states, in the aftermath of slavery and the civil war, when the states are viewed in a more negative, cautionary light, which is a shift in the American view of states The legislature, if it is to act at all, must impose special burdens or grant special benefits to special groups. The paradox: the pledge of equality, yet laws must classify. o Laws apply in specific circumstances, very few laws that are applied the same to all people across the board (ie. Taxation) o Promise equality, but must also make distinctions Response of the Court: o A. reasonable classification treating similarly those that are similarly situated under-inclusive and over-inclusive legislation o b. forbidden classifications: Race? Gender? The colour-blind constitution? Impossible to specify in advance o C. suspect classification

A presumption on unconstitutionality against a law employing certain classifying traits such as race Usually courts assume that legislation is constitutional, but under strict scrutiny, they dont assume that the law is valid Strict scrutiny: US v. Carolene Products 1938 Major change in courts approach to federal interference in commercial matters Court announces new doctrine; when it comes to certain economic matters, like economic ones, the

court will usually presume constitutionality, but when it has to do with minority rights, they will look at it very closely o D. Substantive equal protection of substantive due process Lochner v. New York, 1905 Roe v. Wade Problem: how does a law violate due process? There are just some outcomes that you cant arrive at, and if you do, youve violated due process. Have given due process a substantive context in addition to procedural context 3. CANADA - Taylor multiculturalism and the politics of recognition 1992 a politics of equal recognition means 2 different things. o First, with the move from honour to dignity of all citizens and equal rights. What is to be avoided is the existence of firstclass and second-class citizens Move from medieval society to modern European society o Second, the modern notion of identity has given rise to a politics of difference. Everyone should be recognized for his or her unique identity. Assimilation is the cardinal sin against the ideal of authenticity Kant for equal dignity; Rousseau for authenticity; Cultures also Herder

Dworkins essay Liberalism and his idea of neutrality, Taylors critique of Dworkin and other advocates of procedural liberalism.

REFERENCE RE SAME-SEX MARRIAGES, 200412/1/2011 11:58:00 AM

Opinion by the Court: in regards to same-sex marriages for civil purposes (which is different from civil unions) Civil unions regulated by provinces in Canada, and they have complete control Marriage for civil purposes a divided jurisdiction, so wording of test case is important 1. Fed/prov jurisdiction is divided 91(26) Marriage and divorce federal power to specify the capacity of marriage 92(12) Solemnization of Marriage provincial power for the recognition and procedures of marriage 92(13) Property and Civil Rights provincial power Also Charter 15(1) o Every individual is equal before the law etc. without discrimination based on race etc. Analogous grounds of discrimination

2. Political Questions and the Courts? Justiciability? The courts refused to accept that is was only a political issue, in these complex issues there will be legal components that the court will focus on o Defining the natural limits of the issue living tree versus Frozen Concepts o Frozen concepts that's the law as accepted in Canada 1867, o Lord Sankey, Persons Case, 1930 Women in the Senate The BNA Act, a living tree capable of growth and expansion within its natural limits o By implication, the definition of marriage is not frozen as of 1867 or tied to Christianity Court not willing to rule out same-sex marriage because it want recognized in 1867 by the British Parliament

3. The proposed legislation as written does not violate freedom of religion (Charter 2a) or compel religious performance

concerns that okaying same sex marriage would violate freedom of religion, forcing religions to sanction marriages they did not support

4. Enactment of same-sex marriage law consistent with Charter equality rights (15.1) and promotes Charter values such as tolerance, respect and equality. View charter as expressing a certain philosophy of a way of life, and the courts is sensitive to that Earlier Charter quality cases: o Egan v. Canada Section 15 cant be overruled by section 1. o Vriend v. Alberta sexual orientation should be read into Albertas Individual Rights Protection Act, as per s1 of the Charter Also mere conferral of rights on one group does not violate the rights of another group Hypothetical conflicts with religious freedoms. How conflicts are resolved under Charter s1

5. Is the opposite-sex requirement for marriage consisted with the Charter? No answer. Why? o A. the present proposed legislation, which government will proceed with, whatever we say o B. federal and provincial governments have not appealed lower court decisions affirming same-sex marriage rights The governments have validated these decisions by not appealing, in the context of the power relationships between the institutions: Parliament > Courts o C. many people have acted on these lower court decisions and entered into same-sex marriages o D. uniformity of low desirable in this area Judicial Activism or Judicial Deference? o No appealing so not activism, just upholding o

In the united states, there needs to be a case or controversy for the USSC to act, so there is no option for reference cases like there is in Canada.

SCC has the choice to not accept reference cases, or to not answer certain questions

Emergency Powers and Civil Liberties: Law, Politics and Morality 12/1/2011 11:58:00 AM
Part I: Canada (A) BNA Act, 1867, s91 POGG; 91[7] (militia, military and naval service and defence);War Measures Act, 1914; emergencies Act, 1988. Japanese Canadians during WWII, their internment, property sold, many were deported, but none were ever charged with espionage or disloyalty. What happened to the tradition of British liberty? o according to POGG in times of emergency the state becomes an unitary state o the Japanese internment, was based on past prejudices which allowed for the actions against them in the law by the government (B) Canadian Bill of Rights (1960) and Emergency Powers; the FLQ Crisis of October, 1970 in Quebec. Events and justifications. Some 465 people arrested, only 62 eventually charged, less than a third convicted, most for criminal code offences. Later, 104 people paid compensation. o bill of rights is not an entrenched constitution but just a statute o binds only parliament not provinces o once the war measures act is in action, the Canadian bill of rights is inapplicable (C) Canadian Charter of Rights and Emergency Powers. Relevant sections of the Charter: s1 (reasonable limits); s4[2] continuous of House of Commons in emergencies; s33 (the notwithstanding clause applies to fundamental freedoms, legal rights, equality rights) o S33 allows an override for s1 o charter turns human rights into an elitist game, it is a mistake to rely on judges and lawyers to battle these discussions When human rights become mere legal rights, their moral ambitions are trimmed int he name of successful practice an practical enforceability (D) Canadas Record and Future One view: Thomas Bergers Fragile Freedoms. Will the Canadian Chart make a difference? Or

was its adoption a mistake? Russells A Democratic Approach to Civil Liberties and Smileys The Case Against the Canadian Charter of Human Rights Part 2: USA: Cole Judging the Next Emergency: Judicial Review and Individual Rights: (A) Which is the correct analytical perspective? Marbury v. Madison or US v. Carolene Products (footnote on discrete and insular minorities] o Marbury v. Madison: Marbury had been appointed a judge by the outgoing president, even there was a commission, the commission is in the office and is never sent to Madison it is the first case that establishes that supreme court says that they are the institution that is responsible for interpreting, applying and protecting the constitution, inferring that if they are not doing this, no one will do this, and that congress cannot hold the responsibilities because they will just become unchecked political actors and will become a lawless body o US v It helps establish the power of judicial review to congress From then on constitutional issues are put forwards to judicial review Carolene Products for most issues, supremacy goes to congress and the presidency and the courts stay out of it however when it comes to particular positions, then the courts have special responsibilities to help protect the

discrete and insular minorities from prejudices should not expect much from the courts, but they can perform roles in times of emergency Coles limited role for courts (B) What is the correct time frame? Should we look at the current result or future impact on public opinion and legal culture? Restrictions on speech in WWI (Schenek case) but a more libertarian approach during Vietnam War

o if you look at the current results, sometimes the results are disappointing, however as things cool off, and as times passes, courts are more protective of rights and individuals criticism: when emergency is hot, courts tend to be indifferent, but then when things settle down it then comes to the rescue o what the courts are doing is gradually changing the legal culture, in which the next time things will be done in a more peaceful way (long term perspective) (C) What are the alternatives? (1) The courts should do nothing and recognize that emergencies are extra-constitutional (Tushnets view); (2) Trust the people: Learned Hand-liberty exists in our hearts and minds; (3) Coles view courts are highly imperfect but the alternatives are worse Peter drunk and Peter sober

Part 3: Machiavelli or Kant? Reason of State (Machiavelli, the Prince, chapter 15; Discourses on Livy) or the Individual is never to be treated as mere means (Kant, The Metaphysics of Morals) (A) From Machiavelli to Holmes: No society has ever admitted that it could not sacrifice individual welfare to its own existence. If conscripts are needed for its army, it seizes them, and marches them, with bayonets in their rear, to death. Other examples. A partial qualification Machiavelli and the economy of violence. Also Sun Tzus Art of War. o Sun tzu: (B) Kant and Do What is Right Though the World Should Perish; (S.Bok essay). Is the restraint on torture absolute? See, eg. Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb o Shue: cannot institutionalize torture, as soon as you institutionalize it, it undermines it

CANNIBALISM AT SEA: The Queen v. Dudley and Stephens QBD (1884) 12/1/2011 11:58:00 AM
FACTS: Dudley, Stephens, Brooks and Parker age 17. Dudleys full statement and confession and his belief that he had committed no crime. The initial response of the public. The issue of drawing lots. Issues of necessity and criminal liability TRIAL: Baron Huddlestons deviousness and The Special Verdict. Procedural irregularities. Either the issues of guilt nor the defence of necessity were decided at the trial. Both issues were left for the higher court. The implied promise of a pardon of some kind. The jury also recommends mercy even in the absence of a guilty verdict. HIGH COURT DECISION, COLERIDGE, CJ: the real question whether killing under the circumstances set fort be or be not murder. A) Necessity: in order to save your own life you may lawfully take another, when that other is neither attempting nor threatening yours. o No Lord Hales view in all these cases of homicide by necessity, as in pursuit of a fellow, in killing him that assaults to rob...which are in themselves no felony. Always killing of someone engaged in an unlawful act B) to preserve ones life is generally a duty, but it may be highest duty to sacrifice it. o Eg. War; the duty of the captain and the crew to passengers in case of a shipwreck Doesnt buy that it was necessary for Parker to die, even if you had divorced it from the fact that Parker was not committing any crime o Counter: he was the sickest, going to die first o Counter: didnt know if they were going to be rescued or not, so killing would have been totally pointless.

C) Though law and morality are not the same, yet the absolute divorce of law and morality would be fatal consequence. By what measure is the comparative value of lives to be measured? Was it more necessary to kill the weakest and the youngest than a grown man? o No. Such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime though that wasnt so in this case. o Abuse argument is not necessarily a knock-down argument, because you deal with restrictions, and punish abuse in real life.

D) There is no safe path for judges to tread but to ascertain in the law to the best of their ability. If the law appears too severe, to leave it to the Sovereign to exercise that prerogative of mercy. We are often compelled to set up standards we cannot reach ourselves and to lay down rules which we could not ourselves satisfy. o Then whats the point? Direct conflict with Devlin who says the law is the minimum that we should never come near. Is the judicial process then just determining the level of how much you failed by? We have laws because we expect people to obey them, if you have a law that you dont expect people to obey, it brings the legitimacy of the law in to question/law into disrepute

E) The prisoners are declared guilty of willful murder. [Commuted by the Crown to 6 months imprisonment] o Could also be a division of labour argument. The law is hard,

but there is an out. The necessity plea in English Criminal law Cambridge law journal 1972 Most of the secondary literature on this is critical of the judge

LON FULLERS THE CASE OF TEH SPELUNCEAN EXPLORERES. In Harvard law Review, 1949

Cannibalism, the lesser evil, the plea of necessity, and various (unidentified) judicial philosophies. Judge Foster comes closet to Fuller himself.

COMMENT AND ASSESSMENT: 1. The complex issue of necessity o US v. Holmes, 1842 2. Degrees of guilty o manslaughter v. murder 3. The hortatory function (exhort) of the judicial decision versus deterrence and reformative theories of punishment 4. The custom of the sea versus the common law, and further, versus Victorian morality 5. Absolute principles and the sanctity of life versus the consequences of actions and utilitarianism? Perhaps: Dudleys response: trying to save some lives is better than none at all.

12/1/2011 11:58:00 AM

PUNISHMENT: THEORIES AND PRACTICES12/1/2011 11:58:00 AM

INTRODUCTION: WHY PUNISH? Austin on law as sovereignty, command and sanction. Lex talionis and the retributive theory Lord Denning: There are some murders which demand the most emphatic denuciation of all, namely, the death penalty. [Gowers, A Life for a Life?] THE DETERRENCE THEORY Beccaria On Crimes and Punishment 1764 o Beccaria and Bentham Bentham: proper institutions, education etc .should limit the need for punishment A) the medieval background o The barbarism of criminal law Punishment as vengeance, Torture, Drawing and quartering Punishment has public entertainment, if you recant, they torture you until you confess again, no win game for the accused Torture not part of English common law (v. others) rooted in Roman legal tradition, only those whose words cant be relied on can be tortured (slaves v. senators whose word must be true). To have a capital conviction you must have certainty, and you can get it form a confession (see torture).Church was also big on torture. All big in England, so why not torture in common legal system?

Because to prove that someone is guilty, you need to convince the jury, and the jury does not look for absolute, but for reason. Lower standard of conviction, dont need torture B) Beccaria and the Enlightenment o The new science of punishment as based on secularism and the principle of utility

the purpose of punishment can only be to prevent the criminal from inflicting new injuries and to deter others from similar acts. o The measure of crime is not mens rea or guilty intentional but harm done to society o The greatest curb on crime is not cruelty, but certainty, of punishment The need for proportionality between crime and punishment o Prevention (eg perfection education) is better than punishment C) Beccarias theorem o for punishment not to be merely an act of violence, it must be essentially public, prompt, necessary, the least possible in the given circumstances, proportionate to the crimes, dictated by laws. o Otherwise if all is capital punishment as consequence, why bother with small crimes? o Concern less with punishment, and more with prevention. Not that you punish criminals, but that you have no criminals to punish THE RETRIBUTIVE THOERY REHABILITATED? A) problems with the deterrence theory: o Punishing the innocent scenarios B) the deterrence theory treats the criminal as a means o When deterrence is coupled with reformation, the law-breaker loses his/her most important rights as a human being o Eg. Barbara Wootton, Crime and the Criminal Law if the primary object is to discourage further crimes, the offenders release can hardly be forecast in advance: it must depend on his progress...preventive punishment involves the acceptance of indeterminate sentences. C) the retributive theory avoids the above problems

o It treats the law-breakers as a responsible agent who has a natural right to be punished for breaking the law and nothing else. o Eg. Herbert Morris Persons and Punishment RECONCILIATIONS? RAWLS TWO CONCEPTS OF RULES AND THOERIES OF PUNISHMENT. Rules as summaries versus rules as practices. Justifying a practice and justifying a particular action falling under it. The judge and the legislator stand in different positions and look in different direction. The justification of what the judge does sounds like the retributive view o The justification of what the (ideal) legislator does sounds like the utilitarian view Rawls, utilitarianism, and telishment

CONCLUSION: THE UNRESOLVED PROBLEM OF CAPITAL PUNISHMENT Retribution? Deterrence? Denunciation? Or something else? J.S. Mills Speech in Favour of Capital Punishment o 1. For horrific crimes, the death penalty is the most human punishment based on deterrence theory o 2. Punishing the innocent is extremely unlikely in a system that strongly favours the accused. o 3. The once understandable urge to rationalize punishments is leaving society without any effective punishments. A partial reply to Mill o Charles Blacks Capital Punishment: The Inevitability of Caprice and Mistake The unfairness produced by the many types and the main occasions for the exercise of discretion in a system of criminal law Terms: Lex talionis:

o an eye for an eye Retributive theory: o punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society o punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done. Deterrence theory: o use of punishment as a threat to deter people from committing a crime o 1. Specific deterrence focuses on the individual in question discourage the criminal from future criminal acts by instilling an understanding of the consequences o 2. General or indirect deterrence general prevention of crime by making examples of specific deviants Individual actor is not the focus of the attempt at behavioral change, but rather receives punishment in public view in order to deter other individuals from deviance in the future. o 3. Incapacitation prevent future crimes by taking away his ability to commit such acts jail to keep people from more crime, not for rehab Mens rea o Guilty mind as necessary element of crime the act does not make a person guilty unless the mind is also guilty

Telishment o Rawlss term to illustrate a problem of the utilitarian view of punishment punishing a suspect in order to deter future wrongdoers, even though they know that the suspect is in fact innocent

o Challenge to deterrence theory in that if supporters of these theories believe in the effectiveness of telishment as a deterrent, opponents claim that they must bite the bullet and also hold that telishment is ethically justified. Cesare Beccaria Proponent of deterrence theory o Condemns the death penalty and torture, as cruel and unnecessary way to treat another human being every punishment which does not arise from absolute necessity

is tyrannical
Proportion between crimes and punishment o Crimes of every kind should be less frequent, in proportion to the

evil they produce to society o If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attended with greater advantage
Bentham Advocates utilitarianism Will punishment cause more harm to society than not punishing? o calls for legislators to determine whether punishment creates an

even more evil offence. Instead of suppressing the evil acts certain unnecessary laws and punishments could ultimately lead to new and more dangerous vices than those being punished to begin with
Critique that the goal of limiting crime is unrealistic, part of society

THREE CONSTITUTIONAL MODELS: 1.CLASSICAL PARLIAMENTARY SOVEREIGNTY 2. CHECKS, BALANCES, COMPOND REPUBLIC 3.JUDICIAL SUPREMACY 12/1/2011 11:58:00 AM
INTRODUCTION What is a constitution? USA & UK What do constitutions do? o Control power o Make government responsible o Protect individual and minority rights Including cultural rights and rights of national minorities Philosophers of constitutionalism o Aristotle contra Plato Wise have as much power as possible so they can make good decisions o Montesquieus Spirit of the Laws The separations of powers and moderate government CONCEPTIONS & DEFINITIONS A. written and unwritten (or conventions) B. flexible and rigid o Flexible: British Can be changed by ordinary legislation o Rigid: USA Very difficult to change o Different degrees of flexibility and rigidity o C. monarchical and republican D. presidential and parliamentary E. single-party or multi-party F. federal, unitary, confederal

MODEL 1: CLASSICAL PARLIAMENTARY Diceys Law of the Constitution o A. diceys three principles 1. Sovereignty

parliament is legally unlimited, courts cannot set its laws aside, parliament cannot bind itself 2. The Rule of Law no one is punished except for a distinct breach of law, no one is above the law, rights are part of the ordinary law eg. Writ of habeas corpus Repeals of laws implied or clearly 3. Conventions regulate how discretionary sovereign powers

should be exercised eg. Legal versus the political sovereign conventions of responsible government o B. Common law bill of rights Rules of judicial interpretations Eg. Criminal law statures should be construed strictly Not an entrenched bill of rights, rather a set of interpretative rules, some of which owe their existence to the judges themselves o C. Contemporary challenges European Community Devolution The new British Bill of Rights Anthony King of Does the UK still have a Constitution? Is there a coherent constitution, any principles you can identify? Now believes it is just a rag-bag of junk Nobody knows what the hell is going on

MODEL 2: CHECKS, BALANCES, COMPOUND REPUBLIC (like the US model) Madisons Theory o A. Federalists and Anti-federalists Empires and despotism Democracy and the small republic theory

Potential problem with the Small Republic (Salem), easiest for a group/faction to take control o B. Madisons middle ground in the compound republic if men were angels the questions of size factions Madison: The extent (territorial size, population size, pluralism) and proper structure (how you organize power within) of the Union provides a republic remedy for the disease most incident to republican government o C. The Bill of Rights issue Parchment barriers? 1791: the first Bill of Rights not in the original constitution, but rather a condition of ratification demanded by the anti-federalists as a check on central government power binds central government, but not the states Madison indifferent, because he has other views (see above) as to what are the better barriers to tyranny 1868: the Fourteenth Amendment and the Second Bill of Rights after civil war, some states viewed as bad guys,

and there power needs to be limited o D. Charles Beard and does the USA have a democratic constitution? No. MODEL 3: JUDICIAL SUPREMACY CH Marshalls opinion in Marbury v. Madison 1803

o In denying power to itself, the USSC had also guaranteed their continued ability to call the shots. By saying that they are the body that decides when the laws are constitutional. No power in that particular decision, but gave itself supreme power in the long run. o A. constitutional background and political situation o B. Marshalls conception of constitutionalism. His premise 1. The people have a right to establish a constitution 2. The constitution can simply assign powers or it can also limit the powers assigned 3. US Constitution is the latter, it limits powers 4. To prevent those limits from being forgotten, the constitution is committed to writing 5. It is for the courts to enforce constitutional limitations, otherwise the legislature would have a practical and real omnipotence which would subvert the very foundation of written constitutions o C. A Famous Criticism of Marshall and judicial supremacy Learned Hands the Bill of Rights Democracy and self-government contra judges as Platonic Guardians