Natural Law Theories Revision The following is a plain text extract of the PDF sample above, taken from

our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. WEEK 4 NATURAL LAW THEORIES Introduction to Natural Law Historically the major rival to positivist accounts of law has been 'natural law'. Natural law is famously identified with the sloga n 'lex injusta non est lex' [an unjust law is not a law], which appears to be a claim about the validity of individual laws. This is the way that some natural l awyers understand their critique of positivism. Those who do may be regarded as anti-positivists. But there is a different way of understanding the concerns of natural law. Indeed, one of the leading contemporary exponents of natural law, J ohn Finnis, argues that this conception, rather than an anti-positivistic one, i s truer to the natural law tradition stretching back to Aristotle, Cicero and Aq uinas. The argument here is that legal systems can only be properly understood i f we grasp that the point or function of legal systems is a moral function. This natural law critique argues that a positivist conception of legal systems is ra dically incomplete, and hence distorts our understanding of the nature of law. W e will consider two lines of analysis which build upon Hart's argument that to u nderstand law we need to adopt the 'internal perspective' and claim that this le ads to the view that the internal perspective is ultimately a moral perspective on law. The twist in this type of natural law is that it can be agnostic on posi tivism's source-based account of legal validity. Indeed it may even be that the moral function of law depends upon a source-based account of legal validity, so that rather than being complete rivals, natural law is compatible with one of po sitivism's crucial tenets. General Reading Primary texts Finnis Natural Law and Natural Rights, esp. Chs. 1, 2, 10 and 12: Chapter 1 There are certain human goods that can only be secured through legal i nstitutions and requirements of practical reasonableness that only those institu tions can satisfy. He says that in describing law, it is impossible to define wh ether something is law in every single scenario (as opposed to politics, discret ion etc) and prefers simply to focus on the central cases. This was Aristotle's view. He characterises the descriptive approach of Hart/Raz as taking "practical view" i.e. that the theorist must assess the importance and significance in sim ilarities or differences of the subject matter by those whose concerns or decisi ons or activities constitute the subject matter (i.e. look from POV of judges or politicians). Finnis says this approach is unsatisfactory as it amalgamates the differing IPOVs of different actors in the field and insists on attributing one IPOV to all of them, whether they are anarchists or model citizens. He also bel ieves that Hart's concession that people might be motivated to comply with the l aw by calculations of self interest "waters downthe function of the law as an ans wer to real social problems". Finnis says that a philosopher cannot give a theor etical description and analysis of a social phenomenon unless he partakes in an evaluative exercise too. He has two related points here, firstly a human artefac t like law constituted by human actions and practices can only be fully understo od by reference to its point. Secondly Finnis believes that a theorist cannot de scribe without evaluation because the subject matter (law) doesn't come neatly d emarcated from social life and practice. Instead Finnis argues that we should take the viewpoint that we should view IPOV s as at least presumptively concerned with "practical reasonableness", which is one way of defining morality. The evaluations of the theorist himself are "indis pensable" for choosing concepts to use in the description of aspects of human af fairs such as law or legal order. Thus Finnis takes an evaluative descriptive vi ew of law (unlike Hart's value free descriptive approach). Finnis denies that th is means descriptive theories will be merely the whims/prejudices of individual

commentators, since we engage in a disciplined acquisition of knowledge by reaso ning. He says he is not deducing descriptions from evaluations of vice versa, but mere ly that describing without evaluation will prevent us from seeing which descript ions are really "illuminating and significant". Chapter 2 Finnis defines his version of natural law as saying (1) (i) that there are basic goods necessary for human flourishing; (ii) there are basic methodological requ irements; and (iii) there are general moral standards; (2) These requirements ju stify the exercise of authority in the community and justify the obligatory forc e of laws; (3) The requirements demand that law is made in compliance with the r ule of law and human rights, deriving from the requirements. (4) A law can be re garded as "radically defective" (but NB not invalid) for want of compliance with the above requirements. He says the portrayal of natural lawyers by Raz/Kelsen that a law has to be mora l in order to be valid and is unconcerned with a legal test of validity is wrong : Aquinas' view was that for a law to be valid it has to comply with the legal c riteria for validity and must be not be immoral. That is not the same as saying that natural law unconditionally surrenders tests of legal validity for those of moral validity. Also natural law is concerned with practical reasonableness, NO T idealism. He also denies that natural law depends on everyone sharing the same view of mor ality (as Hart contends). Rather, it requires that a law is not immoral objectiv ely, regardless of whether or not people accept that objective moral understandi ng (they must still comply with laws that satisfy it and not with those that do not). Does natural law fail to distinguish between "is" and "ought"? No: What is pract ically reasonable is a fact deduced from empirically observing human behaviourit is NOT saying that this "ought" to be how laws are made and therefore that la ws ARE only valid when made thus. The basic human goods and practical reasonable ness are self-evident/presupposed and therefore are not susceptible to the argum ent that one is drawing an is from an ought. They are innate and not inferred fr om or demonstrable from any other thing. Chapter 10 Law's claim to supremacy is implausible unless it protects its subjects against threats which they would otherwise face e.g. invasion. Law's authority depends o n justice or at least its ability to secure justice. Legal sanction is a human response to human needs. Punishment therefore seeks to restore the "distributively just balance" between the law-abiders and the crimi nals. The ruler has a responsibility to promote the common good. This means that ruler s who do not abide by the rule of law (which serves the common good) Hart Concept Of Law Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. "The Concept of Law", H.L.A Hart I: PERSISTENT QUESTIONS I. Perplexities of Legal Theory: Short way of saying, there is standard case and then some that deviate, of no us e because legislature and courts itself is creature of law. Must not ask "What i s law" but rather fnd out what has puzzled those who have for so long tried to a nswer it and why! Three main themes part of question what is law, arising naturally, but often mis understood. 2. Three Recurrent issues 1. How does law differ from and related to orders backed by threats? 2. How does legal obligation differ from moral obligation? 3. What are rules and to what extent is law an affair of rules?

 Will show why they come together in form of request for defnition of law to "Wha t is law". 1. Idea of non-optional conduct. One man forced to do what another te lls him with unpleasant threats (e.g gunman threatening woman to give purse or s hoot her). This is starting point for Austin. Too reductionist - so q - how does law differ from order backed by threats? 2. Second way conduct may be obligatory - morality. But: there can be unjust law s. 3. More general: Law as consisting largely of rules. But: what are rules? That people 'generally' do these things? Not enough. Can have convergence withou t requiring people to do so (e.g have breakfast). What is difference? Deviation is not met with reproof. But not exhaustive to say predictability of punishment because we say we punish/reprove a man not because he has broken the rule, and n ot because it was probable that that we would reprove or punish him. So what is beyond this predictable punishment - its this invisible force that we 'ought' to do it. Also, note that much criticism is that legal system doesn't consist even primarily of rules because of the penumbra (the thing around a fashlight on wal l) because most cases in courts are not simple and straightforward - there is al ways a choice. Consider the uncertainty around phrase like "no personal shall be deprived of life liberty or property without due process of law" March notes th is is like saying ' no, w, y, z, x.' 3. Defnition Defnition is what language uses to divide one thing off from the next. "What is time? I know if no one asks me" In searching for defnition we are looking not me rely at works, but also we are using a sharpened awareness of words to sharpen o ur perception of the phenomena.' - Austin. But, defnitions need genus, or family to locate it within. This requirement makes defnition of law useless as there i s no general category to ft it within. Another shortcoming: defnitions rest on a ssumption that all instances of what is defned have common characteristics which are signifed by expression defned. BUT: instinct to bring all three questions t ogether has not been misguided because possible to isolate and characterize a ce ntral set of elements which form a common part of ansewr to all three. First, mu st consider defciencies in claim that 'key to understanding law is found in simp le notion of order backed by threats.' Next three chapters deal with this. Nabil : Why is Hart assuming that there are only these three questions? Are there not many others to be considered? Such as.. II: LAWS; COMMANDS; AND ORDERS 1. Varieties of Imperatives Austin basically subscribed to similar theory. We use the imperative many times - not always with a threat, however. A command is much close to idea of law than gunman's order backed by threats. But, command too close to meaning of law itse lf, need to, like Austin, have unobscure frst principle concepts. 2. Law as Coercive Orders Policeman ordering person is the exception, not enough to do that all the time. So standard form is general. --> Legal control is, though not exclusively, gener al. Must add this to 'gunman' example. Further shortcoming: laws are not address ed to the subjects, but still valid. Further shortcoming: Gunman does not issue standing orders, but one-time order, unlike laws. Must suppose there is general belief on part of those whom general orders apply that disobedience likely follo wed by execution of threat, time and again. Further qualifcation: Most orders ar e more often obeyed than disobeyed by most of those affected. This fact of gener al obedience lies crucial distinction to gunman e.g.: mere temporary ascendancy is polar opposite of law. Constructed model so far at best resembles penal statu te. To be more true to even penal statute - must address supremacy of legal syst em within its territory and its independence from other territories. Thus, laws of any country 'will be general orders backed by threats which are issued either by sovereign or subordinates in obedience to the sovereign. ' III: THE VARIETY OF LAWS Compare variety of laws with the simple model of coercive orders, many objection s: Not all laws order people to do or not do things. Must laws express any legis lators desires? Would enactment not be law if those who voted for it did not know what it meant?

 These objections are either addressed at content of laws, their mode of origin, or their applicaiton, Also, idea of sovereign and and supreme is misleading, lit tle in any actual legal system that corresponds to it. 1. The Content of Laws Social function of criminal statute is that of setting up and defning certain ki nds of conduct as something to be avoided or done by those to whom it applies, i rrespective of their wishes, with punishment as motivation to do so. But model d oesn't ft all: e.g legal rules that bestow power to make Wills or contracts. The y provide facilities, not impose obligations. And not doing it according to stat ute will simply mean it is a nullity, but not a violation of any obligation. Feminist Legal Theory Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. FEMINIST LEGAL THEORY Introduction to Feminist Legal Theory The basic claim of feminist legal theorist s is that sex/gender is an axis or facet of social differentiation that affects legal structures and operation of laws. This is considered problematic because t he treatment of women within law and shape legal structures is not simply a case of differentiation, it equates to dominance, oppression, discrimination and the refore disadvantages women. Feminist legal theory is methodologically different to other forms of jurisprudence. It seeks to critically appraise and interpret l aws and legal practices based on its stated values and political/ethical commitm ents, namely its stance on, and understanding of, women and women's issues/exper iences. This is distinct from jurisprudence that seeks to explain what law is an d rationalise how it works/what it does/its authority, though the one does not e xclude the other. There are many strands of feminist legal theory, some that sta nd in opposition to one another, and some that take differing but sometimes comp lementary approaches to analysing the gender/sex/law relationship. Differences i n methodology can be observed, with some taking a radical, polemical approach, o thers a more analytical or metaphorical approach. There is also debate about the nature of sexual difference and the aspects of sexual/gender difference that ar e relevant to legal theory. For example, some, such as McKinnon, take a material , structural theory of female oppression based on what makes the subject of the theory distinct, namely, being physically a woman. From this perspective MacKinn on sees female oppression as based on sexual difference, therefore the proper su bject for her jurisprudence is issues raised by sex - pornography, rape etc. Oth ers, such as Carol Smart, focus on the economic position of women while theorist s such as Drucilla Cornell examine law from a psychoanalytic viewpoint concerned with the acquisition of sexual identity. Primary texts Smart Feminism and the Power of Law, Chs 1, 4, 6-8: o She focuses on the economic position of women rather than their sexual or physical position. o She rejects Mackinnon's claim that feminism should use law to protect women. She claims that legal intervention in the areas of pornography, rape etc has done more harm tha n good and is sceptical about what good extra "rights" will do. Rather, she argu es that social attitudes must change and that law should be marginalised as a fe minist's means of achieving her ends. o She says law has an inherently oppressiv e power that disqualifies alternative forms of discourse (that's because lawyers have a job to do and can't just sit around listening to "discourse" all day, un like feminists). In accepting law's rules in challenging it, feminism concedes t oo much. This is because law, through the trial process, makes a claim to find a "truth", disqualifying other methods of so doing. o She says that rape is an in herent emotion in men, evidencing male subjugation of women, and to prove this s he quotes convicted rapists and some unsympathetic responses from judges ("prove " being used in the loosest sense of the word). o "A main purpose of this book h as been to construct a warning to feminism to avoid the siren call of law. But o f equal importance has been the attempt to acknowledge the power of feminism to

construct an alternative reality to the version which is manifested in legal dis course." Jurisprudence Fuller The Morality Of Law Revision Notes Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. FULLER THE STORY OF REX Rex's efforts go awfully wrong. Why does Fuller tell us this story? Well, Juri is attempt to make coherent sense of our settled understandings conce rning law. We accept that "justice according to law" may not be the same as just ice in the abstract, so when court does "justice according to law" it administer s the conception of justice that is embodied in the law, and this may differ fro m what I consider to be the morally most sound understanding. But what if enactments are grossly unjust, like Nazi, should connection between law and justice give us reason to think such enactments are not law at all? Such questions make awre that we cannot easily combine our various settled understan dings into an intelligible account of law's nature (e.g. Getting to Rawl's refle ctive equilibrium would be very tough!!) Now, there is the problem of rarely isolating our taken-for-granted assumptions and scrutinizing them, and ultimate theoretical positions can vary greatly. And nature of law has been hotly contested for centuries and many theorists simply t alk past each other because they have different starting points. . But in the me lee of assertion and counter-assertion, can we find some widely endorsed and fru itful understandings of nature of law from which our argument can advance? Fuller says yes! The Story of Rex is a response to this problem. Where the 8 pre cepts are laking, it would not be regarded as a legal system. The fairy tale exa mple is intended to establish some firm understandings concerning law: (i) must be rules that are Austin treated this a bit but he failed to distinguish what is essential for eff icacy ofsystem of legal rule and what shall we call "a law"? (ii) published "Why all this fuss about publishing laws, we have thousands, and only a couple a re ver known. Even if put laws in street corner, not 1 in 100 would read" - Thom as Arnold. Response by Fuller: o Even 1 in 100 is valuable, and he cannot be ide ntified in advance. o People usually follow others who know law better, must be promulgated. o Must promulgate to allow for criticism o Most laws are specific, and promulgation doesn't rest on idea that all laws known to all people, but sit uation-specific. (iii) prospective In USA, this problem dealt with in Constitution: Art 1 para 3 As with the other 7 desiderata that make up internal morality, difficulties that sometimes retrosp ective laws are necessary to give effect to other desiderata, nuances should not blind us that it is not hard to recognize blatant indecencies: E.g Statute that said "anyone who has been convicted of crime of violence may not receive any fi rearms" ever. This over-clever attempt was stricken down by the supreme court in Tot v United States. (iv) intelligible Note: Although we have focus on legislative clarity, it does not mean we can't h ave things like reasonable, or good faith. Sometimes we even need that! Apprecia te that a "specious clarity can be more damaging that an honest open-ended vague ness" [64] o Hayek criticizes that all these terms of 'reasonable' or 'fair' hav e served to whittle down the rule of law progressively into vague formulas and i ncreasing arbitrariness. Don't think that everything can be safely delegated do Administrative Executives either! (v) not contradictory (vi) possible to comply with Note this is different to the good teacher demanding more from students than he thinks capable can be used in a positive way to encourage - government cannot do and perform that same function.

(vii) reasonably stable through time, and (viii) followed by officials (perhaps should have expressly said that use of for ce only ok if rule as described above violated) Fuller calls it "the most complex of all desiderata". Must also appreciate some clouds of confusions: interpretation is not about what parliamentary intention i s, because that is usually clear, but when judges declare what the intention is, they are in truth themselves legislation to fill up casus ommissi, the left gap s. Analogy: Son must finish project started by father who was working on an inve ntion but father dies and leaves only sketch and then son must start thinking ab out how to remedy the situation. Questions son must ask himself are similar to t hat what must ask when interp. Statues. What about impasse of "legislative inten tion" who's intention. Back to analogy. What the son does is look at the intenti on of the DESIGN, not only put himself in the shoes of his father. So we must sp eak of "the intention of the statute". Some notes about the 8 Principles: 1.Infringements of legal morality tend to become cumulative e.g., neglect of cla rity, consistency, or publicity may beget the necessity for retroactive laws 2. Stringency as well as priority of ranking will be affected by the branch of l aw in question, as well as by kinds of legal rules that are under consideration. 3. Paradox, what seems so simple to do correctly is so difficult in practice E.g Aristotle gives example of dealing justly with people, the rules are easy, but application of simple rule not simple So we may say, echoing Aristotle, that eas y to see laws should accord with 8 desiderata, but knowing how under what circum stances, and in what balance these things should be achieved is no less an under taking than being a lawgiver. Fullers Aim: Can we derive any interesting from this though? Well, Fuller aims t o demonstrate that there is a conceptually necessary connection between law and morality, thereby refuting the LP. Other's have tried, arguing that we could not speak of law conferring rights wit hout morality, or that we could not speak of judges doing justice without morali ty, but LP can easily refute/reply to these. Fuller's 8 precepts not so easy to reject. So LP don't reject Fuller's precepts, but simply don't think Legal Positivism 1 Law As A Social Practice Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. WEEK 1 LEGAL POSITIVISM I: LAW AS A SOCIAL PRACTICE Introduction to Legal Positivism Legal positivism is a doctrine about the nature of law according to which (a) all laws are laid down or posited by a certain pe rson or procedure, and (b) something counts as a valid law of a certain system i n virtue of being laid down by a certain someone or according to a certain proce dure. In other words, the legal validity of a rule or decision depends on its so urces (e.g. where it has come from, and how, and when), rather than its merits ( e.g. whether or not it is a good rule or decision). This way of understanding la w was made famous during the nineteenth century by the 'command' theories of law espoused by Jeremy Bentham and John Austin. According to these theories, someth ing is law if it has been commanded by a Sovereign, and is backed up by the thre at of a sanction in case of non-compliance. Command theories help us to understa nd the posited nature of law, allow us to identify and understand what law is be fore considering whether it is morally good or bad, and foreground the role whic h coercion plays in the law, and so furnishes us with a legal theory which attem pts to tell citizens subject to the law exactly the sort of thing they are deali ng with. Unfortunately, however, the command theory makes it difficult to unders tand how legal systems work as a system. Each law is a law because it is posited by an act of the Sovereign, and so each law appears to be self-contained and se lf-sufficient, unified only in that all laws have in fact been commanded by the

present Sovereign in the way explained by the command theory. This, however, fai ls to explain the way in which legal systems seem to have a life of their own, i ndependently of the lives of the Sovereigns, or legislatures, which posit their laws. Legal systems remain in force, and are capable of altering the laws which comprise them, and of creating new laws, across time, and they retain these char acteristics even when one Sovereign dies or one legislature dissolves and a new one ascends to the throne or is reconvened. Twentieth century legal theorists H. L.A. Hart and Hans Kelsen both criticised these weaknesses in Austin's command t heory of law, and, in their own separate ways, set out to explain what it is tha t unifies laws into legal systems, and which allows legal systems to regulate th eir own creation: to determine which laws belong to the system, alter existing l aws, and make new ones, according to their own internal procedures for so doing. How can legal systems pull off this amazing trick of regulating their own compo sition and creation? The 'Internal Aspect' of Law Another important way in which both Kelsen and Hart tried to improve upon Austin's legal positivism was to give a better account of law's "internal aspect". Austin presented those who were subject to the law as being passive in the face of an external force: law was the command of a Soverei gn backed up by sanctions in the face of which the population had a habit of obe dience. In Hart's view, this account of law only explained how law looked on the surface, and from the 'outside' and was akin to an account of cars stopping at traffic lights such as a Martian sociologist might offer. A Martian sociologist could state that cars have a habit of stopping in the face of traffic lights tur ning red. This way of looking at the situation, however, fails to tell us how th ings appear 'from the inside' to those who use legal rules to guide their conduc t in their daily lives. Cars do not merely happen to have a habit of stopping at red lights. Rather, those people in the cars understand that there is a rule re quiring them to stop which they are using to guide their conduct, and which they take as a reason for stopping when the traffic light turns red. The point which Hart wanted to make was that legal theorists will miss some of the most importa nt things about the nature of law unless they understand law as it is understood by those who are subject to it and use it as a guide to conduct. Hart dubbed th is insiders perspective the internal aspect of law, and insisted that law had to be understood taking into account this internal point of view if it was to be u nderstood adequately. Hart and Kelsen gave different accounts of this internal a spect of law, but both wanted to stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal positivism. According to Har t and Kelsen, then, legal theorists must understand law from the internal point of view, but that point of view must not be so internal as to entail a moral end orsement of the law. For Hartian and Kelsenian legal theorists, having an intern al attitude toward the law, then, does not entail accepting the law as a morally good thing which creates moral reasons to do as it says because it says so. General Reading Primary texts Hart The Concept of Law, esp. Preface and Chs. 1-7 (Note: See 2nd Ed. with Postsc ript) 3 main questions prompt the discussion of what is law: (1) How do laws differ fr om orders backed by threats? (2) What is the link between morality and the law i .e. is an unjust law still a law? And (3) What is a "rule" (e.g. as opposed to m erely convergent habitual behaviour) and to what extent is law "an affair of rul es"? Austin defined law by the "command model" i.e. laws are just orders backed by th reats or habit, issued by a person/institution that is generally obeyed. When de fining legal control, orders from officials cannot be the primary way the law fu nctions i.e. the law doesn't function primarily by officials going around and te lling everyone of every single act that they are required to do- no state would have the resources to do this. Where officials do communicate the rules to indiv iduals it is the exception. Normally laws are made by general forms of direction s (e.g. statutes). Therefore legal control is primarily control by directions th at apply to general classes of people and prescribe general types of behaviour.

The party issuing the order must be habitually obeyed by the population and ther e has to be a belief that the sanctions for non-compliance Hart lists several o bjections to Austin's point of view: will be effected. These are categorised into the "content", "mode of origin", and "range of Content: While criminal law and tort law do bear an application" of laws. analogy to the command model, many are as of law do not. Rules that confer legal powers on people e.g. by allowing them to contract and giving effect to their contracts, or the power to make a will, is not demanding any particular type of behaviour and there is no sanction invol ved. Some try to get around this objection by associating power- conferring rule s with coercive rules by suggesting that nullity (e.g. from failure to comply wi th the formalities of the Wills Act) is the sanction resulting from non complian ce with the rule. Hart denies this, saying that it makes no sense to speak of nu llity as a sanction since power-conferring rules are not trying to suppress a ty pe of behaviour (as criminal laws do), but instead are setting limits to the pow er conferred. E.g. the rule that only a majority vote in parliament will allow a bill to pass cannot be regarded as punishing failure to obtain a majority. Anot her attempt to counter the "content" argument (used by Kelsen) is to say that la ws are really just directions to officials to impose a sanction if an act is per formed i.e. the law doesn't prohibit murder, but merely requires judges to impri son those who murder i.e. murder is an "if" clause in a direction. This would Legal Positivism 2 Law As A System Of Norms Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. LEGAL POSITIVISM II: LAW AS A SYSTEM OF NORMS General Reading Primary texts Kelsen The Pure Theory of Law, Chs. 1 and 5 (NB see lecture notes on Kelsen) o Ai ms to answer "what and how law is", not what it ought to be. o It is a "pure" th eory as it seeks to exclude moral elements and social facts from its description of what law is. o By "norm" Kelsen means something that "ought" to occur. It re fers to an act by which certain behaviour is "commanded, permitted or authorised ". o There is a difference between saying something "is" and something "ought to be". o He says that laws are norms e.g. theft is punishable by imprisonment is NOT a statement of fact but an instruction to officials that this "ought" to hap pen : It is a command/authorisation/permission for officials to do the thing. o An official's order is authorised by an act of parliament, whose own authority i n turn comes from the constitution, who in turn is authorised to take its form b y the historically first constitution, which in turn derives authority from the "basic norm" or "grundnorm". Law is thus a system of norms, which is defined as having the meaning that something "ought" to happen both because the actor think s it ought to happen, AND because it objectively ought to happen (objective elem ent = authority up the chain to the grundnorm). Hence a gangster's demand for mo ney is NOT a valid norm, whereas a tax inspctor's demand for payment of tax IS. Thus custom may be a source of law if the constitution allows it to be and the a cts which constitute the custom make others feel that they "ought" to do somethi ng. o A positive norm (i.e. a posited law) is saying that a certain behaviour is authorised, forbidden commanded etc, or simply that X ought (not) to be done. o To say a norm is valid does not only mean that it is actually applied and obeye d, but also that it "ought" to be obeyed (i.e. that it is authorised within the chain of authority set out above- NB this is NOT referring to morals). o Kelsen demonstrates that legal norms can be used to authorise certain types of behaviou r or prevent it. Thus it is not susceptible to the same criticism as the command model, which cannot explain power conferring rules. o Social orders exist which can sanction people e.g. by punishing those who don't conform. Moral orders are considered usually as social, not legal orders. o Any order, social, moral etc draws on a "basic norm" for validity . o Legal orders have the characteristic of relating to human behaviour. Secondly they are coercive. This coercion may be "

psychic" in that the individual feels obliged to obey merely by virtue of someth ing being a law. Doesn't explain power-conferring laws- they aren't coercive! o For legal orders the basic law is that one ought only to impose laws in the wa y stipulated by the historically first constitution. NB this is merely an assert ion, not a justification. Why should one obey the historically first constitutio n? Kelsen cannot provide an answer, because there is none. The only answer is th at this is what officials do in practice and it is necessary to do so in order t hat we have some way of making laws i.e. Hart's rule of recognition. Thus Kelsen 's attempt to describe a theory of law without drawing on social facts fails. Th ere is nothing inherently good about a first constitution- people merely accept it as valid for practicality's sake. Kelsen says the basic norm presupposes conf ormity with the legal order. o Kelsen defends idea of law as a coercive order ag ainst the point that some laws confer power by claiming that norms which authori se acts are merely "dependant norms", which are attached to other norms that DO lead to sanctions. Bollocks- what about contract law? Assuming nullity is not a sanction, how can the power to confer a benefit on a third party be considered c oercive? What other norm, when attached to it, would make it coercive? o The only thing that can validate one norm is a "higher norm" (e.g. why is it r ight that I get a parking fine- because statute permits it). Really- why can't a normative statement just be valid per se e.g. why should I obey the law? Not, a s Kelsen says because the law was permitted by the constitution, but because if people didn't obey the law there would be anarchy. The basic norm's validity is presupposed and cannot be questioned- it constitutes the "unity in the multitude of norms byu representing the reason for the validity to all norms that belong to this order." What? No justification? In which case it is nt representing the reason for the validity of the other laws- it might as well just be a statement saying "you will obey", which is closer to the command theory. o Kelsen describe s his system, in which one is "not allowed" to question the basic norm, as a "dy namic systes" of norms. Kelsen's theory only appears workable where there is a g rundnorm that people genuinely think is unquestionable: i.e. a religious system, where one cannot question the rules of god- indeed Kelsen uses religious exampl es- but cannot work in a democracy where there are no such idols. o Conflicts of norms: If two norms on the same level clash, the later one takes priority since the sovereign can normally change the law. No conflict is possible between a hi gher norm and a lower one. Really? What if the Court of highest instance makes a decision that goes against a principle of the constitution? How does Kelsen's s ystem resolve that dispute? o There is a problem with Kelsen's theory: If a revolution occurs and a new cons titution is imposed, the chain of norms breaks down: The new constitution can no longer draw on the historically first constitution for validity (since it has n ot arrived in its current state from operating within the first constitution), a nd nor does the basic norm justify it, since the basic norm only applies to the first constitution. Kelsen tries to get round this by claiming that the new cons titution, with revolution, changes the basic norm and itself becomes the first c onstitution. There is no other explanation for this than a recognition of the po liticial/social facts which Hart uses to justify the rule of recognition. o The validity of the legal system comes from the basic norm. Kelsen General Theory of Law and State, pp. 110-125, 189-192, 366-370, 383-385 Legal order = a system of norms. What makes a system out of a multitude of norms ? When does a norm belong to a certain system of norms? The Justification Of Punishment Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. THE JUSTIFICATION OF PUNISHMENT Introduction of Justifications for Punishment In punishing citizens the law nece ssarily interferes with their liberty. On many conceptions of what law is, this

interference requires justification. This week we look at what punishment is (ex amining Rawls' and Hart's accounts), how it may be justified and what some of th e alternatives to punishment may be. We look at why we need to justify punishmen t and two major approaches to doing so: utilitarianism and retributivism. General Reading Primary texts Hart Punishment and Responsibility, Ch.1 (see also Chs.2, 4, 6-10): Chapter 1 o Punishment is an unpleasant consequence for an offence against legal rules by the offender, which is administered intentionally by a legal authority . o The theory of retribution answers two separate question: One is an answer to what is the justifying aim of punishment, and secondly who ought to be punished (the answer being only the wrongdoer). The second question is distributive retr ibution. They are not inconsistent. o The distributive element of retribution ca n be subdivided into two parts: who ought to be punished and the amount of punis hment (who and by how much). o He argues for proportionality in punishment so as to uphold commonly held (or "distributive") morality. If flouted, this will bri ng the law into the contempt of its subjects. Chapter 2 o In criminal law there are certain "excusing conditions" such as dure ss, mental illness etc that absolve the defendant of the crime or diminish his p unishment. What do these tell us about the justification of punishment, if anyth ing, and how do they relate to it? o Disagreements about the relevance of certai n excusing conditions tend to be based around a difference of view relating to h ow this factor limits the control of a person over his own behaviour. o There ar e conditions set to civil law institutions too, such as contracts, wills, gifts etc, where the conditions, such as insanity, do not excuse the action, but inval idate the contract/will etc. o Why do we value a system of social control (law) that takes mental conditions into account? o What of the argument that punishmen t/criminal sanction should depend on moral culpability? Bad, since many laws san ction behaviour that is either morally neutral or even moral (possibly mercy kil ling, for example). Retributivists argue that (1) it is unjustifiable to enforce laws unless the system of law is morally defensible i.e. it would be better to have law than anarchy. Therefore (2) it is only justifiable to punish people whe re they have moral culpability. Step 2 is additionally supported by the claim th at the only reason to examine the inner facts of the law is if we are concerned with the morality of the actions. Otherwise we might as well not bother with men s rea. Hart points out the obvious non-sequitur: there are two separate question s. The first is whether it is right to have a system of law and to enforce laws to protect such a system. This concerns the moral value of a law/system of law a nd is a question for the legislature. The second is to ask about the justice of punishing an individual in a particular case. It takes into account the conditio ns of punishment and is for a judge to decide. Thus, while the general justifyin g aim of punishment is utilitarian (it is better to have laws and therefore to e nforce them), this does not prevent moral culpability from entering into the ext ent of punishment or the fairness of punishing people in cases where a condition s of punishment/responsibility (sanity, knowledge of what he was doing, not subj ect to extreme coercion/duress etc) are not met, e.g. duress o Bentham's theory is "the economy of threats". It argues that the only reasons for concern with th e inner facts or the "conditions of responsibility" (i.e. why we allow certain f actors to excuse criminal conduct) is because people without the ability to cont rol their own actions are incapable of following the law's commands. Therefore i t would be inefficient to threaten them with sanction (i.e. to try to deter them ). This has nothing to do with morality, but is a simple utilitarian calculation . Hart disagrees, saying that if, for example, the defence of duress was removed , it is true that threat itself would have been ineffective. However there may s till be utilitarian value in punishing someone not capable of complying with the law e.g. to reform them/keep them away from potential victims. o Hart says that the existence of excusing conditions (which includes, for Hart's purposes, lack of mens rea) can be seen as a way of maximising an individual's ability to plan their lives, based on the ability to predict when criminal sanction will apply to them. This clearly differs from a system of purely strict liability, in which

the attraction of criminal sanction may be impossible. This improves individual autonomy WITHIN the framework of a coercive structure whose existence is valuab le and whose use of punishment is justified by the utilitarian aim of preserving this structure. The excusing conditions maximise autonomy within law, but do no t show that moral culpability is the basis of punishment Hudson, Justice through Punishment (1987) Ch. 6: The Justice model (Hudson's term for the theory comprising proportionality of punishment to crime; determinate s entences and no judicial/administrative discretion; no disparity in sentencing; protection of rights through due process), was proposed by liberals who wanted t o restore due process and to limit the role of the state (for example in reforma tion of criminals). It is unfair as it gives up on reforming the criminal, and i gnores contributory factors such as socio-economic or familial background and so dehumanise the offender. Since soio-economic backgrounds are relevant to determ ining true moral capability and just deserts, the exclusion of these, through th e curtailment of judicial discretion in sentencing, the justice theory undermine s its raison d'etre. Rehabilitation is a worthy goal, since policies based on th e desire to help are more likely to have positive outcomes than one based on the desire to punish. There is now such a large prison population that prisons have become problems in their own right, quite separate from the problem of crime th at they are trying to solve. Chapter 2 Traditional "desert-based" justifications of punishment: The Legal Enforcement Of Moral Standards Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. JURISPRUDENCE READING SESSION 5 THE LEGAL ENFORCEMENT OF MORAL STANDARDS Introduction to Law and Morals Are there aspects of our lives into which the law must not intrude? Can the intrinsic immorality alone of certain activities cons titute sufficient ground for their prohibition? In this topic, we will familiari se ourselves with the debate over the moral limits of the law and with some of t he controversial cases and intricate concepts it involves, and consider the weak nesses of some classical attempt to address it. General Reading Primary texts Devlin The Enforcement of Morals, Chs. 1, 6 and 7: Chapter 1 A society is inextricably linked to its morality, usually coming from the tradit ional religion so that in the UK, for example, Christianity provides us with a m oral code. However a state that leaves religion to the private conscience cannot enforce religious beliefs on the basis of that religion. However shared morals can still be enforced through the belief that without them society would be lost . The law currently does enshrine moral principle e.g. one cannot consent to assau lt, euthanasia is banned, as is assisted suicide, duelling, incest etc which do not involve doing harm to others. See Hart's response below Devlin argues that because a society acts with certain standards, others must be bound by them and this cannot be left to individual judgments, lest those stand ards be threatened e.g. people have to abide by the institution of marriage even if they would prefer to practice bigamy or marriage will be threatened. So what if these standards are threatened? Devlin is just saying that institutions have to be protected or their position in society will be vulnerable. He does NOT sa y why this matters. There are 3 stages in Devlin's argument: Firstly that society has a public moral ity, secondly that society has the right to use the law to enforce morality and thirdly he considers whether morality should always be enforced or whether there should ever be exceptions. Devlin says that there is such a thing as public morality, as demonstrated by th

e fact that even those who don't believe in the Christian version of marriage ar e forced to abide by it. Public morality is that which is held by the reasonable man/man in the Clapham omnibus. Devlin then argues that because a shared morality is as necessary to society as "a recognised government" then society has a prima facie right to legislate agai nst immorality. "History shows" that the "loosening of moral bonds is often the first stage of d isintegration". Does it? No examples given. He draws an analogy to traitors who undertake subversive activities against the government. Clearly a retarded analo gy Devlin denies the public private morality distinction but doesn't say why, excep t that they often conflict and the court has to decide between them- perhaps he is implying the "no man is an island" argument. Devlin says that when people have an overwhelming disgust for a practice, e.g. h omosexuality, the law should eradicate it. The limits of tolerance are passed wh en this feeling of disgust is so strong that the activity's mere existence is th ought of as an abomination. Regarding whether the law should enforce all morals, Devlin says no. He argues t hat the law's enforcement of morality is of the basic morality necessary to surv ive and NOT the absolute ideal (e.g. the law doesn't tell people to be charitabl e) so that it is aiming for the minimum morality. Hence his conception isn't too interventionist/against personal freedoms to too great an extent. Chapter 6 According to Mill the sole permissible aim of man in interfering with liberty, w hether as an individual or as a society, is self-protection. It is not justifiab le to interfere with X's liberty "for X's own good". Rather Mill said that X wou ld be able to maximise his own happiness by taking decisions for himself. Devlin argues against Mill, saying that every man has the ability to affect othe rs so that if he acts immorally, society itself is under attack. Therefore Mill' s attempt to cordon off an area into which the law must not pass makes no sense. He says individualism that reigned in Mills' time is now defunct e.g. in econom ic matters. Devlin's belief still rests on the dodgy premises that (1) Society h as a shared morality and (2) that it needs this to survive. Also economics and m orality are different. Devlin says that if a large proportion of individuals are consumed by vice then society itself would be weakened e.g. "a nation of debauc hees could not have responded to Churchill's call for blood and toil and sweat a nd tears". Hart is not against stopping people physically self harming e.g. limi ts on alcohol etc. However where there is no physical harm, there is no reason w hy a society with loose sexual practices would not be able to respond to Churchi ll's call. Also he is saying why one particular morality (Christianity) is capab le of defending society and NOT that a shared morality in general is necessary f or the continuance of society. This contradicts his initial point that any moral ity, whether based on Islam, Christianity, Hippy-ism etc is fine, so long there is a morality. Could a society of Hippies, who regarded Devlin's stoic values ha ve responded to Churchill's call? Thus is Devlin defending shared morality or sh ared Christian morality? His specific defence of Christian morals (e.g. his beli ef that homosexuality is unnatural, prostitutes are "exploiters" and drink is wr ong) suggests the latter. The very fact that non-Christian societies DO survive disproves his belief that society needs shared morals. Devlin rejects the argument that punishment of a vice that cannot be changed (e. g. homosexuality) causes misery unfairly. He says that misery is caused unfairly , by this account to a paedophile, whose imprisonment causes the same misery as a homosexual- neither of them can physically change their desires. Stupid point: the difference is that a consenting adult homosexual is not being harmed wherea s a non-consenting child clearly is. Devlin interprets the basis of Mill's argument as a plea that society should con sider that it may be mistaken in morality, and for that reason individuals shoul d be able to go their own way, rather than the way dictated by society. He did n ot argue that law would be ineffective, nor that society was wrong that prostitu tion etc was immoral (he thought that it was). Devlin says that on this basis Mi

ll is wrong: we constantly have to impose sanctions (e.g. criminal ones) in the knowledge that we may be wrong, and society could not function without this. Mil l's point is a good one that we should keep in mind, but is of no use in Jurisprudence Fuller The Morality Of Law Revision Notes Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. FULLER THE STORY OF REX Rex's efforts go awfully wrong. Why does Fuller tell us this story? Well, Juri is attempt to make coherent sense of our settled understandings conce rning law. We accept that "justice according to law" may not be the same as just ice in the abstract, so when court does "justice according to law" it administer s the conception of justice that is embodied in the law, and this may differ fro m what I consider to be the morally most sound understanding. But what if enactments are grossly unjust, like Nazi, should connection between law and justice give us reason to think such enactments are not law at all? Such questions make awre that we cannot easily combine our various settled understan dings into an intelligible account of law's nature (e.g. Getting to Rawl's refle ctive equilibrium would be very tough!!) Now, there is the problem of rarely isolating our taken-for-granted assumptions and scrutinizing them, and ultimate theoretical positions can vary greatly. And nature of law has been hotly contested for centuries and many theorists simply t alk past each other because they have different starting points. . But in the me lee of assertion and counter-assertion, can we find some widely endorsed and fru itful understandings of nature of law from which our argument can advance? Fuller says yes! The Story of Rex is a response to this problem. Where the 8 pre cepts are laking, it would not be regarded as a legal system. The fairy tale exa mple is intended to establish some firm understandings concerning law: (i) must be rules that are Austin treated this a bit but he failed to distinguish what is essential for eff icacy ofsystem of legal rule and what shall we call "a law"? (ii) published "Why all this fuss about publishing laws, we have thousands, and only a couple a re ver known. Even if put laws in street corner, not 1 in 100 would read" - Thom as Arnold. Response by Fuller: o Even 1 in 100 is valuable, and he cannot be ide ntified in advance. o People usually follow others who know law better, must be promulgated. o Must promulgate to allow for criticism o Most laws are specific, and promulgation doesn't rest on idea that all laws known to all people, but sit uation-specific. (iii) prospective In USA, this problem dealt with in Constitution: Art 1 para 3 As with the other 7 desiderata that make up internal morality, difficulties that sometimes retrosp ective laws are necessary to give effect to other desiderata, nuances should not blind us that it is not hard to recognize blatant indecencies: E.g Statute that said "anyone who has been convicted of crime of violence may not receive any fi rearms" ever. This over-clever attempt was stricken down by the supreme court in Tot v United States. (iv) intelligible Note: Although we have focus on legislative clarity, it does not mean we can't h ave things like reasonable, or good faith. Sometimes we even need that! Apprecia te that a "specious clarity can be more damaging that an honest open-ended vague ness" [64] o Hayek criticizes that all these terms of 'reasonable' or 'fair' hav e served to whittle down the rule of law progressively into vague formulas and i ncreasing arbitrariness. Don't think that everything can be safely delegated do Administrative Executives either! (v) not contradictory (vi) possible to comply with Note this is different to the good teacher demanding more from students than he thinks capable can be used in a positive way to encourage - government cannot do

and perform that same function. (vii) reasonably stable through time, and (viii) followed by officials (perhaps should have expressly said that use of for ce only ok if rule as described above violated) Fuller calls it "the most complex of all desiderata". Must also appreciate some clouds of confusions: interpretation is not about what parliamentary intention i s, because that is usually clear, but when judges declare what the intention is, they are in truth themselves legislation to fill up casus ommissi, the left gap s. Analogy: Son must finish project started by father who was working on an inve ntion but father dies and leaves only sketch and then son must start thinking ab out how to remedy the situation. Questions son must ask himself are similar to t hat what must ask when interp. Statues. What about impasse of "legislative inten tion" who's intention. Back to analogy. What the son does is look at the intenti on of the DESIGN, not only put himself in the shoes of his father. So we must sp eak of "the intention of the statute". Some notes about the 8 Principles: 1.Infringements of legal morality tend to become cumulative e.g., neglect of cla rity, consistency, or publicity may beget the necessity for retroactive laws 2. Stringency as well as priority of ranking will be affected by the branch of l aw in question, as well as by kinds of legal rules that are under consideration. 3. Paradox, what seems so simple to do correctly is so difficult in practice E.g Aristotle gives example of dealing justly with people, the rules are easy, but application of simple rule not simple So we may say, echoing Aristotle, that eas y to see laws should accord with 8 desiderata, but knowing how under what circum stances, and in what balance these things should be achieved is no less an under taking than being a lawgiver. Fullers Aim: Can we derive any interesting from this though? Well, Fuller aims t o demonstrate that there is a conceptually necessary connection between law and morality, thereby refuting the LP. Other's have tried, arguing that we could not speak of law conferring rights wit hout morality, or that we could not speak of judges doing justice without morali ty, but LP can easily refute/reply to these. Fuller's 8 precepts not so easy to reject. So LP don't reject Fuller's precepts, but simply don't think Hart Concept Of Law Revision The following is a plain text extract of the PDF sample above, taken from our Ju risprudence Notes. This text version has had its formatting removed so pay atten tion to its contents alone rather than its presentation. The version you downloa d will have its original formatting intact and so will be much prettier to look at. "The Concept of Law", H.L.A Hart I: PERSISTENT QUESTIONS I. Perplexities of Legal Theory: Short way of saying, there is standard case and then some that deviate, of no us e because legislature and courts itself is creature of law. Must not ask "What i s law" but rather fnd out what has puzzled those who have for so long tried to a nswer it and why! Three main themes part of question what is law, arising naturally, but often mis understood. 2. Three Recurrent issues 1. How does law differ from and related to orders backed by threats? 2. How does legal obligation differ from moral obligation? 3. What are rules and to what extent is law an affair of rules? Will show why they come together in form of request for defnition of law to "Wha t is law". 1. Idea of non-optional conduct. One man forced to do what another te lls him with unpleasant threats (e.g gunman threatening woman to give purse or s hoot her). This is starting point for Austin. Too reductionist - so q - how does law differ from order backed by threats? 2. Second way conduct may be obligatory - morality. But: there can be unjust law s. 3. More general: Law as consisting largely of rules. But: what are rules? That people 'generally' do these things? Not enough. Can have convergence withou

t requiring people to do so (e.g have breakfast). What is difference? Deviation is not met with reproof. But not exhaustive to say predictability of punishment because we say we punish/reprove a man not because he has broken the rule, and n ot because it was probable that that we would reprove or punish him. So what is beyond this predictable punishment - its this invisible force that we 'ought' to do it. Also, note that much criticism is that legal system doesn't consist even primarily of rules because of the penumbra (the thing around a fashlight on wal l) because most cases in courts are not simple and straightforward - there is al ways a choice. Consider the uncertainty around phrase like "no personal shall be deprived of life liberty or property without due process of law" March notes th is is like saying ' no, w, y, z, x.' 3. Defnition Defnition is what language uses to divide one thing off from the next. "What is time? I know if no one asks me" In searching for defnition we are looking not me rely at works, but also we are using a sharpened awareness of words to sharpen o ur perception of the phenomena.' - Austin. But, defnitions need genus, or family to locate it within. This requirement makes defnition of law useless as there i s no general category to ft it within. Another shortcoming: defnitions rest on a ssumption that all instances of what is defned have common characteristics which are signifed by expression defned. BUT: instinct to bring all three questions t ogether has not been misguided because possible to isolate and characterize a ce ntral set of elements which form a common part of ansewr to all three. First, mu st consider defciencies in claim that 'key to understanding law is found in simp le notion of order backed by threats.' Next three chapters deal with this. Nabil : Why is Hart assuming that there are only these three questions? Are there not many others to be considered? Such as.. II: LAWS; COMMANDS; AND ORDERS 1. Varieties of Imperatives Austin basically subscribed to similar theory. We use the imperative many times - not always with a threat, however. A command is much close to idea of law than gunman's order backed by threats. But, command too close to meaning of law itse lf, need to, like Austin, have unobscure frst principle concepts. 2. Law as Coercive Orders Policeman ordering person is the exception, not enough to do that all the time. So standard form is general. --> Legal control is, though not exclusively, gener al. Must add this to 'gunman' example. Further shortcoming: laws are not address ed to the subjects, but still valid. Further shortcoming: Gunman does not issue standing orders, but one-time order, unlike laws. Must suppose there is general belief on part of those whom general orders apply that disobedience likely follo wed by execution of threat, time and again. Further qualifcation: Most orders ar e more often obeyed than disobeyed by most of those affected. This fact of gener al obedience lies crucial distinction to gunman e.g.: mere temporary ascendancy is polar opposite of law. Constructed model so far at best resembles penal statu te. To be more true to even penal statute - must address supremacy of legal syst em within its territory and its independence from other territories. Thus, laws of any country 'will be general orders backed by threats which are issued either by sovereign or subordinates in obedience to the sovereign. ' III: THE VARIETY OF LAWS Compare variety of laws with the simple model of coercive orders, many objection s: Not all laws order people to do or not do things. Must laws express any legis lators desires? Would enactment not be law if those who voted for it did not know what it meant? These objections are either addressed at content of laws, their mode of origin, or their applicaiton, Also, idea of sovereign and and supreme is misleading, lit tle in any actual legal system that corresponds to it. 1. The Content of Laws Social function of criminal statute is that of setting up and defning certain ki nds of conduct as something to be avoided or done by those to whom it applies, i rrespective of their wishes, with punishment as motivation to do so. But model d oesn't ft all: e.g legal rules that bestow power to make Wills or contracts. The

y provide facilities, not impose obligations. And not doing it according to stat ute will simply mean it is a nullity, but not a violation of any obligation.