2080 Lecture NOTES

STRICTLY FOR PRIVATE USE ONLY - VERY ROUGH NOTES: 1
Copyright 2010-2011. Professor J. Kow.
Philosophy of Law 16 May, 2011.

Lecture 1 - Introduction
Law, Reason, Authority, and Power
- 1. What is philosophy?
- philosophy is the activity of thinking: continual process of questioning

and answering. examining the assumptions and beliefs and opinions which you
naturally hold. you normally feel that they are so obvious that there is
no need to question them. philosophy expects you to question and examine
the fundamental concepts which you rely upon. this is an unusual procedure.
it may feel quite strange at first. but the point is to get you justify what
you believe you know.
- philosophy does not mean giving direct expression to your feelings and
opinions and beliefs. these may well be wrong and false. undoubtedly you
must start from feelings and opinions, but you cannot remain with them. you
must defend them in argument with good reasons. so philosophy is more than
mere emoting. it is also different from merely rationalizing your emotions,
with no intention of critically examining them.
- 2. philosophical method: (a) analysis and synthesis. exhibits both
centrifugal and centripetal force. moving from vagueness to clarity. (b)
the method is argumentative and dialectical. it tacks back and forth,
proceeding from the examination of one position to the examination of its
opposite. all this is done in order to help you to clarify your own position.
you evaluate contrary positions so as to better evaluate the validity of
your own position. frequently philosophy questions what seems to be obvious.
this · does not mean that philosophy is attacking the obvious. rather
philosophy is trying to understand why the obvious is obvious. trying to
see what lies is behind the obvious.
- Now for the Philosophy of Law Proper:
- 1. the aims of normative legal theory: (1) the philosophical justification

of the legal framework; (2) a unified understanding of law and the legal
system. include both the continuity and changing nature of law. deal with
the law and the judgement applying it. understand this as a unity. so get
the philosophical framework in focus. law as a general institution, not
particular laws.
we are reflecting upon law. not doing law per se. knowledge of
philosophical legal theory is not a prerequisite for being a good lawyer.
In this course we attempt to understand the presuppositions of law.
- 2. various questions: (1) what is law? what are the prime examples of law?
a) scientific laws. mathematical. laws of nature. laws of physics. expressed
in universal and necessary propositions. and these brook no exceptions. b)
this course. laws in the context of a legal system. natural law, rational
law, positive law, and (c) moral law.
- what is the chief difference between scientific laws· and legal laws? the
former are descriptive. mathematical descriptions of reality.
quantitative. deal with the measurable. laws in the legal area are
prescriptive. they tell us what ought to be. these laws can be violated,
and still remain laws. scientific laws when violated cease to be laws.
- 3. we will study law in the context of a legal system. what is the concept
of a legal system? look at the elements composing it. its legal complexity.
- first why does law exist? The liberal political origin of law: think of
a state-of-nature. violent competition between individuals. omni-present
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fear of death. no safety here. so people decide to agree to limit their
warlike competition. agree to obey the same laws. decide to confine
competition to the economic sphere. agree on constructing a situation for
mutual advantage. create rules for curtailing violence (Criminal Law) and
for regulating economic competition (Tort or Private Law) . rules or laws
so that we can live peaceably together while pursuing our private goals.
- so we have looked at the purpose of law. (1) to settle disputes in an orderly
and fair fashion. it is a dispute settlement device. disputes are a fact
of life. (2) to protect innocent people from violent people, ie. criminal
law. (3) another view argues that even if people were all good they would
still require laws. because they would have different opinions about the
goals of society, and how to reach these goals. over the ends and means used.
laws regulate competition and coordinate social life in general, ie. the
law of contracts. Tort law, Regulatory laws. so dispute-settlement,
regulation/coordination, and protection.
- but the need for laws is the need for a framework for these laws, a
fundamental law or Constitution to ensure social order and stability in our
dynamic societies. ever changing social patterns of behaviour, and evolving
forms of economic life. this framework is the political structure of the
modern nation state. the law-structured state--rule of law- -is our response
to the volatility of the pure state of nature where everyone is free to do
his or her own thing without limitation. since the sum of laws makes up the
legal system, there is a political basis to the legal system.
- 4. the 5 elements composing the legal system.
- (1) law/laws exist. both as fundamental laws and as derivative laws. a
framework with internal parts. (unwritten. revealed. divine law. ancestral.
natural vs customary law. canon law.)
- imagine: that there no laws exist. can there be a lawless legal system!
a minimal condition for a legal system is that laws exist. laws structure
a legal system. ie. no punishment without a law.
- (2) an agency that makes and changes the laws. ie. the legislature. this
gives the laws their legitimate authority. ie. our Parliament.
- imagine: that there is no agency for making law. maybe some law can be
eternal. ie. a divine law exhibited in social customs and traditions.
- (3) an agency to determine whether the law of society has been violated.
where there have been infractions. ie. the judiciary.
- imagine: that there is no agency to determine whether the law has been
violated. what would the purpose of law be then?
- (4) an agency exists in the community for settling private disputes between
individuals. a dispute settlement device. ie. a civil court. maybe
regulatory agencies, or other bodies of mediation.
- imagine: that no agency exists for settling disputes between individuals.
individuals resolve their disputes by fighting it out. perhaps a duel. s.71
of the CC (Criminal Code 1995)
- (5) an agency for enforcing the law. ie. the police, neighbourhood women.
agency for law enforcement. police. army?
- imagine: that there is no agency for enforcing the law. no police. ie.
when the police go on strike. the circumstances in strife torn or war torn
regions.
- are laws, when there is no physical power to enforce them still laws? does
power exhaust the nature of law. ie. is might right? or is law something
over and above the power that enforces it. can a law still possess authority
without power? are you obliged to obey it? legally? morally? is authority
different from power? do physically powerless laws still possess authority?
ie. driving home late at night, a stop-light in the middle of nowhere. do
we have moral or legal obligations to obey laws that cannot be enforced at
the moment, or for an extended period of time?
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- lastly, what image do you have of law? are laws barriers (hedges) or guides
(roads, paths) to freedom? do laws make you more or less free? what do you
mean by freedom? in a void of power you are legally (and morally?) still
bound to obey the law. the law is still authoritative; it simply cannot be
enforced for contingent reasons. so reason is the basis of law.
- A Case Study Problem:
- the inadequacies of natural law and positive law.

- contract between A and B. A sells B a car. B sells the car to C. the cheque
from B to A bounces. C's cheque to B is okay. the money B obtains from C
cannot be reclaimed.
- who owns the car? not B. but A or C? was the contract between A and B valid.
if yes then the car was B's to sell. but A loses out. if the contract between
A and B was voided by the bounced cheque, then B had no ownership of the
car. so he could not sell it to C. then C loses out. the problem: someone
else besides B (jail) loses.
- does natural law or positive law help us make a fair just judgement in
this situation? it seems not.
Lecture 2 17 May, 2011.

Natural Law - Aguinas
- Natural Law Theory - St. Thomas Aauinas:

- 1. The Explanation of Law:
- (1) Reason and Law - law is a rule or measure of human actions. it places
an obligation on us to act or not to act in a certain manner. it is a guide
for human action. now reason ·rules or measures our aCtions, reason directs
us to Our ends. and the end is the first principle in action. reason rules
by rules; it rules by laws. therefore reason pertains to law. Let=s look.
- a law must be reasonable to be a law. a law derives its authority from
reason. the reasonableness of law is the source of the law's authority. and
this rational and legal authority should be recognized by human reason.
Reason and Law, not Power/Will and Law.
- (2) Law and the Common Good - what is the end of law? what does law exist
for? what is the goal of law? the ultimate end in human life is to achieve
happiness! and this end of happiness is the first principle in practical
matters, in our actions. now it is law that guides our actions to this end
of happiness. this is the common good which we all have an interest in.
- (3) Reason and Legislation - the rationale for the existence of law is
that it helps us to achieve the common social good. people are naturally
social beings. the common good is a natural good. and it is the law-maker's
responsibility to legislate so as to bring about this common good. hence
law-making is a purposive activity. reason -> law -> common good.
- ( 4) Law and Promulgation - those who are ruled by law are ruled rationally.
so they must be made aware of the rules or laws imposed upon them. it is
a condition of valid law that it be made public.
- law is "the ordinance of reason for the common good." law is made for the
public good, for an earthly goal or earthly happiness. again the reason for
the law should be public.
- 2. Kinds of Law:
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- (1) Eternal Law - eternal law governs the universe. it is disclosed in

the order of the nature. all things being equal, natural beings move towards
their natural ends in an intelligent manner. this shows the factor of
providence (a pattern of rationality) immanent in experience.
- consequently there must be a mind behind the uni verse's order. this mind
employs law to order the uni verse's parts to their natural ends. this mind
is God. in sum: if there are laws, then there must be a law-giver. his law
is eternal as he is.
- (2) Natural Law - this is the unwritten law in human beings which they
know by reason. human reason shares in the eternal reason which governs
nature. ie. as human beings we have a natural inclination to aim at certain
ends and to perform specific acts. ie. being rational. we participate in
the eternal law in a rational free manner. note: freedom and obedience are
compatible.
- consequently natural law is simply the rational creature's participation
in eternal law. the light of natural reason permits us to see what is good
and to see what is bad, and it should motivate us to do what is good, and
avoid what is bad.
- note: human nature provides the key to the nature of natural law. human
beings possess the same nature. this human nature is objective and
universal. individuals are under a rational obligation to actualize their
human natures to the fullest, namely to be rational and to be in control
of their appetites. this is what is good. what frustrates this realization
of human nature is what is bad. for Aquinas these are self-evident lucid
truths about human nature.
- (3) Human Law - human law is Positive Law (GesetzBCf Austin}. law is a
dictate of practical reason. based on natural law we make human laws. we
make human. laws because human reason is concerned with a changing society
with evolving needs. so from the universal precepts of natural law (common
and indemonstrable) we reason to particular conclusions which respond to
the changing needs of society. and it is these conclusions which form human
law.
- 3. Natural Law:
- (1) the first principle of practical reason states that: "the good is to
be done and promoted, and evil is to be avoided." the good has the nature
of an end. the order of precepts of the natural law is in accordance with
our natural inclinations. ie. self-preservation, sexual intercourse,
rational orientation to the good.
- (2) Prescribing the Virtues - interestingly for Aquinas there is an area
of human life which law should not touch. there is a zone of privacy in which
we are allowed to cultivate freely our private virtues. ie. private charity.
thus morality and the legal sphere are not co-extensive. ie. private
kindness.
- (3) Universality of Natural Law - the common principles of natural law
are common to all people. why? because there are the same natural
inclinations present in everyone. we all have the same human nature. thus
we can all reason from the same principles.
- (4) Mutability of the Natural Law - (a) the natural law can be added to.
it can change in this way. (b) but the natural law cannot be subtracted from.
it is not changeable in this way. in sum: (a) it is unchangeable in terms
of its first principles, (b) but is changeable in regard to its secondary
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principles.
- or the fundamental principles of natural law are immutable, but practical
reason has to apply them in particular situations. the application of these
principles can differ since particular situations differ. We need prudence.
- 4. Human Law:
- (1) Human Law and Natural Law - a law is determined to be just or to be

unjust according to the rule of right reason. the first rule of reason is
natural law. hence human law is just to the degree that it is derived from
natural law, to the degree that is according to natural law.
- "lex iniusta non est lex." an unjust law is equivalent to an act of
violence. it is not a valid law. human law or positive should not violate
natural law. human law can be either neutral or moral, but it cannot be
immoral. (See Fuller). note that natural law and human/positive law are not
coextensive.
- (2) Repressing Vices - we should frame our laws for the majority of people.
hence laws should not demand that individuals be perfectly virtuous. as a
result laws should not forbid all vices, but only those vices that are
grievous, ie. harming others. the purpose of human law purpose is to lead
men to virtue gradually.

Common Law
Positive Law - Austin
Legal Realism - Holmes - Frank
- 1. Common Law:
- common law originates in the collective wisdom of the community. it is

characterized as judge-made law. this is in contrast to statutory law which
is made by legislatures. common law is also called "lex non scripta." it
is unwritten law.
- in common law the "judge" is seen as representing the common law. he is
seen as a "depository or living oracle" of the law. but the individual judge
is not seen as making law. instead ancient custom makes the law by speaking
through him to the community. this is the source of the law's authoritative
voice. ie. in Mediaeval England: the Bailiff, Coroner, Keeper of the King's
Peace, the called upon jury of men, etc ...
- thus the authority of common law resides in custom going back to antiquity.
common law is a collective enterprise. it emphasizes the continuity of the
community and its traditions. it has the weight of ongoing custom and
tradition. and so it tends to be conservative.
- how does one come to know the common law? a knowledge of common law can
only be acquired through experience. it can be described as a "refined
artificial reason," which one must develop. unlike natural law common law
does not depend upon a theory of human nature. instead it depends upon a
conventional community.
- Objections: some difficulties with common law:

- ( 1) common law has trouble explaining the fact of parliamentary supremacy,
the fact that parliament can legislate and make laws. it fails to account
for the political authority underlying legislating. common law refers to
the Crown which is a part of the tradition of the community like common law
itself. common law -> Crown.
- (2) common law overlooks the society from which common law originates,
and it fails to explain society's relationship to the common law. moreover
it has no well-defined concept of the modern nation-state. ie. the
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law-governed state. See Austin and Hart.

- (3) common law has difficulty explaining the process of legal development.
its stress on the mythical origins of law's authority preempts an
explanation of both the judge's (King's) role and parliament's role in
law-making. an example below.
- a common law principle: like cases should be decided alike (stare decisis
the principle of fairness. this is also the doctrine of precedent. and yet
sometimes we break free from past ways of deciding cases (ratio decendi -
obiter dicta). See the evolution of rape laws. ie. since 1982 in North
America a husband can be charged with raping his wife. Cf Afghanistan today
on minority Shea law. Cf laws on incest in Europe.
- 2. Austin - Positive Law:
- 1. Austin wants to eject and delineate the area of legal theory. an area
which for him is separate from the morality of natural law, and also from
common law. he has a negative view of law. law is a barrier. Austin stresses
the importance of government and its legislation as the source of law. he
zeroes in on political centralization and a top-down view of law. a
positivistic theory of law: what is legislated or posited by the legislature
is law. Austin opposes natural law theory. Human Law > Natural Law.
- 2. and yet Austin has a moral theory. he is a utilitarian. he advocates
. the principle of utility. ie. namely that one should bring about the greatest
happiness for the greatest number. and we must evaluate laws by this
principle. and he contends that the state of the law in his day already
embodies this principle.
- 1. (1) what is law? the answer to this question lies in the area of
jurisprudence which deals with positive law. positive law is "law set down
by political superiors to political inferiors." 11 • • • a rule laid down for
the guidance of an intelligent being by an intelligent being having power
over him. 11
- law is a general command expressing the power of the commander.
- (a) men-> men= positive law or human law. political superiors (sovereign)
command their inferiors. for Austin the notion of sovereign refers to the
office or institution, not to specific persons.
- (b) rules which are enforced by opinion constitute positive morality. this
is not positive law. hence it is not properly termed law.
- (2) Austin provides us with a depsychologized concept of law. law is a
type of command. a command which is an expression of a desire behind which
there is sufficient power to inflict evil or pain on the person who disobeys
the command.
- the threat of evil in the case of disobedience obliges the individual
commanded, to obey the command. this is his duty. thus command and duty and
sanction are correlative. a sufficient probability of punishment and
sanction is a necessary condition of command, and of law.
- negative sanctions behind commands make these commands laws. the negative
view of law. positive sanctions/rewards cannot constitute commands and
laws. so command, duty/obligation, and law form one concept. power is
central to law. power -> law's authority.
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- (3) laws establish duties which may generate rights. natural rights do
not exist independently. laws themselves do not directly establish rights.
instead law is an instrument of government which should be efficiently used
so as to attain the common good (utility) .
- so Austin permits only a limited scope for civil liberties (Britain. not
civil rights. no Bill of Rights there. rights as a French then American
notion) . they are useful insofar as they serve the common good. this flows
from his command theory of law. for Austin duties a·re- more fundamental than
rights.
- (4) lastly judges do not simply interpret the law, they also make the law.
a judge legislates as much as a legislature does. a judge can transform
custom/common law into positive law by positing the common law as statutory
law. the judge is a delegate of the sovereign. he is commissioned to act
on behalf of the state in rendering judicial decisions making law. thus for
Austin judge-made laws are "tacit commands of the sovereign legislature."
- 2. (1) the sovereign determines the law. yet what is sovereignty? (a)
sovereignty is attributed to a determinate superior to whom the bulk of the
people are in the habit of obeying; (b) in turn, this determinate superior
does not habitually obey any human superior. the people are the sovereign's
subjects. sovereignty and subjection. this appears to be a sociological
criterion.
- further only the determinate superior, the sovereign, is independent.
society is not independent. instead society depends upon the sovereign. for
society even to be a society,
the generality of the given society must be in the habit of
obedience to a determinate and conunon superior.
- (2) Austin is outlining a factual sociological criterion for determining
what sovereignty is. he chooses to approach jurisprudence and sovereignty
in a mundane fashion.
- Some Questions:
- 1. shouldn't there be more legal room permitted for laws which human beings
do not make or legislate? ie. customs/ common law. for Austin custom is only
law if it is formulated as a statute. what Austin is interested in is
codifying and thus rationalizing the conunon law. this is the trend in
modernity. Cf Bentham and legal reform.
- 2. is the Sovereign merely a "Gunman writ large?" does Austin's legal
theory affirm that might is right? can't the laws possess authority without
legal power behind them? Austin argues that the sovereign's power is
unlimited! "Every supreme government is legally despotic." here a pre-legal
notion of sovereignty is coupled with factual habitual obedience.
- Austin does remark on the greater importance of habitual obedience over

commands with threats, legal power. moreover there are side-constraints on
what is lawful. ie. the principle of utility and the notion of the common
good. but are these sufficient to prevent the abuse of law?
- 3. what is the origin of the sovereign's power to command? are there laws
or rules for conferring power and authority on persons? these would be
enabling rules or enabling laws, ie. social contract or the Constitution.
consent. ie. laws for making laws?
- 4. is there a tight correlativity between command and duty? after all,
being obliged (prudential) is not equivalent to having an obligation
2080 NOTES 8
(moral) . law appears to be hypothetical in the Austinian schema. it is
dependent upon power. it does not appear to have any categorical features.
- Austin emphasizes the rule of men (not really offices) over the rule of
a written constitution, Austin emphasizes the rule of men over the rule of
independent laws. human beings are the ultimate authors of law. human beings
are the ultimate legal authority. a determinate superior is the ultimate
authority.
- 3. Holmes: Prediction Theory:

- 1. Holmes argues for the bad man or prediction theory of law. Holmes is
concerned with being able to predict judicial decisions. the law is not a
detached "brooding omnipresence in the sky. " and law is also not the same
as ethics. he takes a low view of law as the true view of law. by taking
the bad man's predictive route to law we will uncover the true nature of
law.
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.
- 2. Holmes begins by adopting the judicial/court's/ lawyers/client's
viewpoint. this is the insiders or professional' s viewpoint. for Holmes the
purpose of jurisprudence is to study "the incidence of public force through
the instrumentality of the courts"
- but this requires predictive powers. predictions reveal the nature of both
legal duties and legal rights. ie. what will be decided to be a legal right
and a legal duty. or law is "systematized prediction." law is an instrument
that helps the lawyer to prophesy what the judges will decide. now observe
that law and morality are connected externally. for Holmes law is the deposit
of morality. but he wants to isolate what law is so as to define it. this
is like Austin.
- thus he adopts a realistic approach to the law, the approach of the "bad
man." the bad man's predictions disclose what law truly is. the good man
can internally uncover what is moral; the bad man uncovers what externally
is legal. law is a barrier.
- 3. law deals with the external, the formal; morality with the internal.
Holmes opts for a narrow approach to the study of legal doctrine. so law
is not a solely matter of logic. law and experience. judicial judgements
balance alternatives. it helps to be able to predict which side the judge
will come down on.
- 4. consequently there cannot be any real legal certainty. thus judges have
to make policy decisions, political decisions, ie. which weigh the social
advantages and disadvantages of the decision. ie. environmental law. jobs
vs. environment. See Austin's Utilitarianism.
- Questions:
- 1. is Holmes' s legal method "too self-consciously predictive"? do judges
make their judgements with an eye to predicting how other judges (appeal
judges) will judge their decision? and is that even relevant? yes, to an
extent.
- 2. does Holmes' s instrumentalistic realistic approach to law overlook the
existence of unjust laws? is his low view of law only a partial view of law?
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don't we need to establish an independent moral standpoint in order to be

able to evaluate the validity of law? Cf Austin's theory of positive
utilitarian morality -> law. (??)
- 4. Frank: Legal Realism:
- 1. Frank proposes a markedly practical approach to law. for him law is

what it means to a person consulting a lawyer~ his approach is
result-oriented. dealing in legal matters is obtaining the result you want.
law is like a game. one plays to win. how one plays will determine the
outcome; how one plays will determine what will be lawful.
- 2. there is great uncertainty in trial court's "fact-finding" process.

Frank is a "fact sceptic. " for him ascertaining the facts is a result, not
a given. ie. witnesses (fact: the more witnesses the more divergent the
descriptions of the events tend to be. the fact of interpretation in
"empirical" observation) obvious prejudices, the skills and performances
of the lawyers. one engages in "modern legal magic."
- 3. the individual should focus upon the outcomes of the case. and so he
argues for an experimentalist version of law in the service of policy ends.
ie. New Deal, Patriation case.
- 4. what is the purpose of Frank's example? to show that what the law is,
is different at different moments of time. there is no fixed settled law
and there are no settled rights beforehand. instead law is situation bound.
law is made from and for each set of facts presented to the judge. it helps
immeasurably to be able to predict what will be judged to be the law.
Law, then as to any given situation is either (a) actual law, that is,
a specific past decision, or (b) probable law, that is, a guess
as to a specific future decision.
- 5. Objection: (a) the prediction of what the law will be is just as elusive
as trying to determine the nature of the law. (b) this approach operates
as if the law does not possess any nature of its own.
2080 NOTES 10
19 May, 2011.
Lecture 4
Analytical Jurisprudence - Hart
- Hart - Analytical Jurisprudence:
- Hart is interested in the "Rule of Law." a self-regulating system of rules

based upon rational recognition of their normativeness. he is also opposed
to what he takes to be the Austinian doctrine of law as the "Rule of Men."
Hart's rational authority of law v. Austin's power-based authority of law.
- his empiricist approach. Hart's theory begins by criticizing Austin's
theory of the sovereign issuing coercive commands. why? because Austin's
sovereign and his commands are like a "Gunman writ large." Austin's system
is not a legal system. surely human society is different from a gang of
thieves.
- Hart's Objections to Austin: (1) law is not a matter of threats and power.
(2) law also applies those who enact it. (3) a fundamental type of law
overlooked in Austin's theory is power-conferring or authority-conferring
law. ie. laws governing how one legislates, and adjudicates. (4) finally
secondary rules are required so as to account for continuity of legislative
authority.
- for Hart the law is more fundamentally a rule than a command. and the nature
of a rule, for him, is both rational and normative; the nature of a command
for Austin is predictive.
- Hart: (1) primary rules. primary rules impose duties directly. they apply
to particular actions. Austin limits all law/commands to this type of law.
ie. criminal laws.
- (2) s_econdary rules. secondary rules confer authority and powers. they
govern and regulate the operations of the legal structures. secondary rules
provide the context and justification for primary rules. how rules are made
tell us whether they are laws or not. their pedigree. this is what makes
them laws, even if we decide not to obey them.
- The Idea of Obligation:
- for Hart law involves a "non-optional" sense of rational obligation. Hart

distinguishes between: (a) I am obliged to do X. ie. Austin's Gunman forces
me. this can be interpreted psychologically as a statement about beliefs,
ie. the likelihood is that I will be punished if I disobey a command which
is backed by power and threats of punishment. if the likelihood is
sufficiently high, then the command is a law because it causes me to obey
it.
- (b) I have an obligation or duty to do X. I am persuaded to do X. ie. to
be loyal. so I have an obligation to obey a law even if there is no possibility
of being caught and punished. this would be a contradictory notion in (a).
- Hart: obligations do not always imply rules (private obligations), and
rules do not always imply obligations. ie. rules of correct speech and
etiquette. but with rules in general there arises an insistence upon the
seriousness and social pressure which is a part of the obligation to obey
them. rules are important because they maintain social life. ie. rules
against violence, and rules to help the vulnerable.
- being subject to social pressure is not a matter of being coerced. ie.
of being obliged. being subject to social pressure means having an
obligation to obey social rules because we all are in society together; we
all have a vested interest in society.
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Copyright 2010~2011. Professor J. K~w.
- (1) the external aspect of rules. this is the viewpoint of the detached
individual who observes those who actually obey the rules. it is a spectator
theory. ie. predictions about behaviour. he is concerned with the observable
external regularities of behaviour.
- (2) the internal aspect of rules. this is how the rules are acknowledged
by those who accept them. this is the participant's point of view. it is
the proper.way to understand rules and what they mean? Hart stresses the
normative rather than the psychological dimension of the internal aspect.
- those who accept the rules acknowledge that these rules are rationally
obligatory. those who occupy the internal aspect are law-abiding. however
they do not obey the law out of fear of being caught if they disobey it.
they obey the law because the law makes sense.
- the laws provide reasons why they should be obeyed. and so the legal order
is perceived to be a rational order. the legal order, the legal system, makes
good sense. it is sensible.
- (1) primary rules are concerned with the actions of individuals. the social
pressure and seriousness associated with these primary rules provides the
reason for obeying them.
( 2) secondary rules are concerned with primary rules. ie. with
establishing, certifying, altering, abolishing, and with determining
whether they have been violated. customary law or common law is an unruly
example of unorganized primary rules.
- secondary rules. (a) the rule of recognition deals with the problem of
uncertainty. the rule of recognition is acknowledged as an authoritative
rule for determining the validity of other rules, ie. how rules are to be
made. this identifies primary rules. it permits one to identify the primary
rules of obligation, and so it produces a unified legal system.
- (b) secondary rules of change govern alterations in the primary rules.
ie. rules of enacting, repealing, and amending primary rules.
(c) secondary rules also empower individuals to make authoritative
determinations regarding whether a primary rule has been violated. ie. the
rules of jurisdiction and adjudication. or the courts as a source of law.
- recall that we are operating with the internal point of view. we have
extended the internal point of view of primary rules through the addition
of secondary rules. ie. rules governing legislation, jurisdiction validity,
legal powers, etc ...
- Rule of Recognition and Legal Validity:
- the legal system requires a secondary rule of recognition to determine
what the primary rules of obligation are. there are many sources of law in
our legal systems. so the rule of recognition can either be a complex or
a simple rule. ie. arguably the English Rule of Recognition includes custom
and precedent in common law, statutory law, Parliament, and the Crown etc ...
- we presuppose the rule of recognition. it is shown, not said. and a legal
system requires that officials accept the secondary rules governing the
primary rules. everyone has an obligation to obey all these rules.
- the validity of a rule (the internal view) does not depend upon its
efficaciousness (the external view). the rule is valid independently of its
efficaciousness. it possesses authority independently of its
efficaciousness. the rule of recognition validates all rules. the rule is
recognized as rational, and for that reason it is normative. it ought to
be obeyed~. what is rational is normative.
2080 NOTES 12
Copyright 2010-2011. Professor ~· Kow.
- two characteristics of the rule of recognition. ( 1) this rule of
recognition is supreme. it can identify other rules as legally valid and
ensure their validity even if they conflict with other sources of law. ie.
common law. the rule of recognition does not imply a concept of unlimited
legislative power. the rule is ultimate, not the rulers.
- (2) the rule of recognition is the ultimate rule of the legal system. unlike
particular rules one cannot ask if the rule of recognition is legally valid
or legally invalid. the rule of recognition is factually accepted.
- this is like Austin's notion that it is factual habitual obedience to the
pre-legal sovereign which constitutes the sovereign's sovereignty. for Hart
the rule of recognition is the last court of appeal for all other rules if
the question as to whether they are valid or not is raised. Austin's
sovereign is ultimate and supreme.
23 May, 2011.
Lecture 5
What is Judicial Decision-making? (Hart)
Rules, Principles and Rights - Dworkin
- 1. Judicial Decision-making:
- we are still examining legal theory, but from the viewpoint of judicial
decision-making. the question at present is what elements compose a judicial
decision, and legal reasoning? what elements go into a legal judgement, and
what type of reasoning does it involve?
- what happens in hard legal cases? Austin argued that judges in all
instances in all cases possessed the sovereign's power delegated to them.
so they could legislate judicial legal judgements. his judges are delegates
of the sovereign. they have delegated sovereign power.
- Positivism in general holds that in hard cases the judge has strong
discretion to make the law. but in Dworkin' s view this transforms the judge
into a legislator. Dworkin fears that in this capacity the judge will be
predisposed to defer to the wishes· of the majority, thus jeopardizing
minority entitlements/rights.
- Hart's judges do not legislate in normal core cases. but in "hard" or
penumbral cases beyond the written positive laws, they are entitled to use
strong discretion in order to reach a legal judgement. Cf Austin's judges
as delegates of the sovereign.
- for Dworkin the purpose of law is to protect the minority's legal against
the possible tyranny of the majority. law is designed to protect the
individual citizen's legal rights and moral autonomy.
- in sum: Dworkin sees rights as anti-majoritarian. he argues for the rights
of individuals against the notion of majority rights. his principle of
individual rights determines both law and rules.
- 2. Dworkin - Rules/Laws and Principles - Judicial Decision-making as

Interpretation:
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Copyright 2010~2011. Professor J. Kow.
- Background: Dworkin criticizes the Hart's and Legal Positivism's notion

that the legal model of rules completely explains the nature of law. instead
he argues that:
- (1) law is composed of more important elements than rules.
(2) judges are not legislators. but by their interpretation of the
principles of law they can help law to develop from its own resources.
- for Dworkin the law is neither merely found {Common Law), nor made/enacted
{Positivism), instead law is the result of a non-arbitrary interpretation.·
now we will look at the parameters of judicial decision-making.
- 1. Questions.
- (a) Dworkin. isn't law a matter of reason? and don't legal realists turn
law into a policy battle-ground?? don't they turn law into politics?? and
in doing so don't they give up on law as a conflict resolution device?
- (b) Legal Realism adopts its activist position because it erroneously
perceives law to be static "mechanical jurisprudence." it mistakenly judges
law to be essentially conservative. TALK ABOUT THE BASIC MYTH OF J. FRANK.
- 2. Positivism.
- Recall: distinguish between: (1) Austin: power is the source of authority;

and (2) Hart: authority determines power. rule-governed. note Hart's more
complex account of the authority of rules (law). ie. secondary
power-conferring rules ->primary rules. ultimately all rules rely upon a
rule of recognition.
- what are the sources of a rule's authority or normativeness for Hart?

- (a) the secondary rule of recognition validates all other rules. (b) it
itself is accepted as authoritativei as supreme it cannot be validated by
a higher rule.
- for Austin since the judge is the sovereign's delegate, and for ·Hart since
hard penumbral cases crop up, both hold that the judge has the discretion
to make law when the statutory law does not immediately apply.
- to repeat: (a) Austin's judge is a delegate of the sovereign. he is a
legislator. wider latitude. (b) Hart's judge can only legislate in penumbral
or hard cases. let's deal with Hart. what is a penumbral or hard case?
- for Dworkin easy and hard cases differ in degree, not in kind. he considers
Hart's distinction to be too sharply drawn. why? because interpretation is
involved in all cases.
- 3. Dworkin's Rules Principles, and Policies:
- in hard cases for Dworkin judges have to appeal to non-rules in order to

render a judgement. ie. they do not appeal to the defined rules, to posited
law, so as to resolve the case at hand. there are two alternatives:
- (1) these judges could appeal to policies {social goals). Objection: but
this is realm of politics and legislation.
- (2) instead judges should appeal to principles {"requirement of justice
or fairness or some other dimension of morality") in interpreting and
applying the rules/law. and in fact they do appeal to principles.
- however judges do not explain their appeal to principles. as a result no
theory of the role principles play in law has been developed. hence Dworkin' s
goal: to display the role that principles play in law.
2080 NOTES 14
- Riggs vs. Palmer: 1889. Riggs' sisters as daughters of their slain

Grandfather.
- the rule regarding inheritance is explicit, yet the judges utilize a
principle underlying the law to resolve the issue. they appear to create
a new rule to govern this situation.
- 1. (a) Earl, J. the statute is on the side of Elmer. he inherits.

-;..._. .. , "'
'" .... -.!")«-\ - (b) but the intention of the law-makers must also be considered. note the
'(.+.~\\~ (s~<-... failure to fully express one's intention. so employ the "rational
' \
interpretation" of the statute. reasonable man standard? need equity to
'Jc.•
correct deficiencies in the law, deficiencies due to law's generality,
~
\ · ..v'• .;.>
unforeseen circumstances etc .... the crucial principle is that "No one shall
l:J~~,...,.c.N
,..,,., be allowed to profit by his own fraud, or to take advantage of his own wrong."
- (c) social and public-policy maxims would approve of denying the legality
of Elmer Palmer's inheritance claim.
- (d) denying the legality of Elmer Palmer's inheritance claim is not an
additional punishment upon him.
- 2. (a) Gray, J. dissents from the majority decision. the judges are
strictly bound by the "rigid rules of law. " as judges they must judge
according to the letter of the law as formulated by the legislature.
- and so they cannot revoke someone's will after his death, no matter what
the circumstances of his death might be. to do so in the case of Elmer Palmer
would constitute an instance of remedial justice which is beyond the
jurisdiction of the court.
- (b) an intention in law is superseded by an action. the action of making
the will in Elmer Palmer's favour, and the non-action of not revoking it.
- (c) moreover public policy has no role here. indeed public policy is best
served when judges see to it that the law is carried out. Objection: no matter
what the law is?
- (d) and the failure to carry out the deceased's will is an unjustified
additional penalty imposed upon Elmer. this violates the principle "nulla
poena sine lege." = "no penalty/punishment without a law."
- Dworkin again. the maxims of common law determine the operation of all
laws. he advocates a kind of common-law theory guided by principles.
- what are the differences between rules and principles?

- (a) rules are applicable in an all or nothing manner. on the other hand
the application of principles admits of degree. so while rules give judges
specific directions, principles only incline a judge in a particular
direction. also rules tend to be seen in isolation, while principles must
be coherent and hang together.
example: there are many possible principles governing the choice,
interpretation, and application of a riule. the question is which is the
relevant principle? ie. #1, #2, freedom of the legal will and contract v.
permitting injustice through a legal loop-hole.
(b) principles have weight, rules do not. rules are efficient or
inefficient, they either work or they do not work.
- 3. Principles and Law.
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Copyright 2Dl0-2011. Professor J. Kow.
- in Riggs a principle is cited as the justification for creating a new rule.

the principle that "no man may profit from his own wrong. 11 we will examine
two concepts of legal principles.
- (1) Dworkin's position. principles are binding upon judges. so the law
includes principles. law includes both rules and principles.
- or ( 2) principles are summaries of what most j utjges do when they have to
go beyond normal legal standards in hard cases. in this area the judges have
to make up the relevant legal principles. this is.judicial discretion.
5. Dworkin on Hart's Rule of Recognition.
- this is a formal rule. the problems with strong judicial discretion have
forced Positivism to drop it. ie. the notion that principles are
extra-legal.
- Dworkin: the law includes principles. principles are binding upon judges.
again the law includes principles. law includes both rules and principles.
- but the principles that determine the Riggs and Henningsen cases are not
enacted rules, they are not valid rules. instead they are found to be
appropriate. in addition they are not grasped in any ultimate secondary rule
of recognition. they are beyond Hart's ultimate rule. what is the status
of these principles then? do they form the ultimate "rule of recognition?"
no. Dworkin is unwilling to assert this.
- principles grow out of the tradition of the legal system. in this they
are like common-law. we could say that Dworkin seeks a principled common
law. Marry French Rights with English common-sense in the U.S.A ..
- consequently legal interpretation and reasoning involves the weighing of
principles. in every case the judge must relate rules to the relevant
principles. hence judicial principles rather than legislative policies
determine the decisions of judges. so the judiciary is not political.
- Dworkin: now judicial decision-making is an interpretive activity. it is

creative, but this creative judicial interpretation is not arbitrary.
indeed interpretation constitutes the law. judges are not making law; they
are not legislating. Dworkin is not interested in just a realistic
description of the law. his organic common-law conception of the law
indicates that the law must grow and develop in a principled manner.
- natural law theory argues that "what law is depends in some sense on what
law should be." morality is in some way connected with law. Dworkin agrees
with this. Dworkin wants to defend this.
- the issue of hard cases. judges should render judgements/adjudicate in
hard cases by interpreting the political structure of their community. ie.
look at the moral principles that govern the political structure as a whole.
this demands a full constitutional interpretation. this is not within the
ability of human judges. they can only approximate the mythical judge
Hercules with his complete interpretation of the political-moral-legal
structure of his society behind his legal judgements. but real judges can
aim at a partial justification of their legal judgements in this vein.
- 3. the chain (novel) of law:
- common law adjudication is like the chain novel interpretation. judges

can and must make creative decisions, but these decisions must in some sort
2080 NOTES 16
of continuity with what has preceded.

- these decisions are not made in a legal vacuum. judges interpret past law
with an eye to the present and future. but this is not arbitrary. it adheres
to the criterion of coherence.
- so try thinking of judicial reasoning and decision-making in a literary
terms. each judge has to continue the on-going story of law in the most
consistent, and in the best way he can. he isn 1 t a detached observer of the
law, but a participant, occupied in the story or "game" of legal
interpretation about what law ought to be. Dworkin' s point: judicial
decision-making should be principled.
- Interpretation in Practice: an interpretation, an interpretative judicial

decision, must fit the legal data-- statutory law, common law, precedents,
etc ••.. --and it must exhibit the past legal data in the best light. the
continuity and integrity of the legal tradition.
- a judge must have some sense of what it is for his decision to fit into
the legal system. he will require a theory of the constitution, the state,
the community, a political theory, a moral theory, etc ... how he puts these
together, how he makes a judicial decision is not a mechanical process. a
process of reflection. and prudence. Dworkin's ideal judge is Hercules.

Law and Morality and Liberty - Mill
Liberty-Limiting Principles (Hart, Devlin, Fuller, Mill)
Justice. Types of Rights and Duties
- Initial Remarks:
- 1. the issue.we are now concerns unjust or immoral laws. (a) can an "unjust"
immoral law be called a law? (b) and if it is technically a legitimate law,
is there an obligation to obey it?
- (1) are there limits to what can be posited or legislated as law? as to

what can be called law? natural law theory (Aquinas) argues that both
objective human nature and morality place limits on what can be called law.
a law cannot be a law and violate moral norms. hence an "unjust law" is an
oxymoron. properly speaking it is not a law, but rather a violation of law.
consequently for Aquinas law must meet a moral minimum in order to be a law .
. ,. (2) for the Positivists "law is law, 11 period. the limits that define what
law is are not moral limits, but rather rational limits. limits that a
reasonable individual recognizes. See Hart.
- 2. Some Problems with Natural Law Theory:
(1) natural law theory does not define what human nature is. indeed, what
is natural, and what is unnatural? what makes something natural? it has not
dealt with the difficulties involved in defining these terms.
- (2) moreover, is there just one good, one end, shaping human life as natural
law theory contends? if there is, then is it the duty of the state to bring
about this objective end-good? is it its duty to morally educate its
citizens? especially the young? the city should make laws to help
individuals to choose the good. however if individuals do not choose the
good, should the state choose the good for them?
- Objection: this leads to legal moralism. the state acting on moral grounds
would force people to be good against their will.. but this violates the right
2080 NOTES 17
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of freedom of expression, the right to privacy, pornography, literature

etc... it disrespects other kinds of life styles. ie. alternative
life-styles.
- (3) the notion of a substantive good which everyone ought to choose can
lead to intolerance. one who believed in this good might be tempted to
enforce this particular good/a particular morality upon others. ie. trying
to force one's morality upon another.
- such a morality argues that everything is the business of the state. so
there is no room for a private morality. the only morality is the state's
morality. in this situation one could be on the receiving end. all objective
moral theories are in danger of going down this road. and whose moral
objectivity will rule?
- 3. (1) Cultural Liberal Points: it better to be tolerant and to recognize

and accept the agreed upon rules (laws) we all live by in a pluralized and
diverse society. it is far better to respect differences by obeying the
minimal rules that permit individuals freely to choose their own
life-styles.
- what is the core of these liberal rules? "do not harm others." this
procedural rule permits everyone to take part in the social game. each
individual can pursue her own goals as long as she does not harm anyone.
this is the human right of self-determination that belongs to each
individual as a rational being. the liberal argues that we can agree on the
minimum/starting points we need in order to live in society, but that we
do not have to agree on the maximum/ends we pursue in society. ie. "do this
good." Liberalism argues that we have an obligation to do the rational
minimum: "do no harm." a rational morality of duty.
- (2) Natural Law Theory makes both the minimum and especially the maximum
a matter of moral obligation. "you are obliged to follow the natural law
and the laws of society insofar as they embody the natural law." (a) the
moral minimum is "do no harm." the moral maximum is "do good." this is natural
law's Morality of Aspiration.
- Hart's liberal approach makes the minimum standards in society a matter

of rational obligation. this can be formulated in a hypothetical statement.
"If you want to live peaceably, then you ought to follow the primary and
secondary rules of society." in the liberal view laws are procedures
enabling fair play in society. they are rules we play by. these rules produce
a level playing field for everyone. we are ruled by the rule of law and more
particularly by the constitution. we are not ruled by men. the rules that
rule us are impersonal and fair.
- Hart:
- 1. a review: law is not morality. law is law. its moral merit or demerit
is another thing. (a) what is moral is not necessarily legal. (b) and what
is legal is not necessarily immoral. so properly speaking an immoral law
is still a valid law.
- 2. what is Austin's Utilitarianism?

- (a) law is not the same as morality.
(b) he focuses upon the analysis of legal concepts. ie. law, personality,
etc ...
2080 NOTES 18
- (c) law is command (threat/punishment/power) .
- Hart accepts (a) and (b) , but not (c) . for Hart compulsion is not a defining
mark of the legal order. in addition Hart uses (b) - -the empirical
observation of social linguistic practices--to explicate (a). an analysis
of the term "law" will disclose that morality is not a part of its definition.
- regarding (c), note that in making law, the law-makers have to comply with
law.· primary rules must be in accord with secondary rules. so legislators
must act in accordance with authority-conferring or power-conferring rules,
and ultimately in accordance with the complex rule of recognition.
- types of law: (a) criminal law. law as prohibition, as a barrier. "do not
do X." these laws are categorical in nature. (b) Private Law/Contract. law
as enabling. "if you want X, then you must do Y." hypothetical or conditional
nature of these laws. these rules of law confer rights and powers. but they
need not be moral rules, they can be common-sense rational rules.
- 3. another way of approaching the separation of law from morality. Cf
Realism, Holmes, and Frank. a discussion of judicial decision-making. then
Hart's example: "vehicles are not allowed in the park." what constitutes
a "vehicle." what is the definition of a "vehicle." the ambiguity of the
facts in the case reveals that legal rules possess a core focal meaning and
a penumbra displaying the open texture of language. so we can't solve such
cases by logical deduction. this is the plain meaning theory of law. judges
are guided here. in penumbral cases they can exercise strong judicial
discretion. legally this is a hard case.
- decisions about the penumbral areas of the law invariably include policy
considerations. the penumbral area is not the moral fringe of the law. there
is no mysterious fusion of the law and morality here. instead Hart's
injunction is "be reasonable." for normal cases there is no real cause to
appeal to moral considerations. instead we can refer to the rational core
of the law for a decision.
- 4. G. Radbruch on the Moral Implications of Positivism:

- G. Radbruch. German legal positivism was not impressed with the messiness
of Anglo-American law. ie. the common law (UK) and natural law (USA). it
wanted to make the law into a value-free science. to this end it decided
to ignore moral concerns. so this positivistic value-free legal science
separated law from any morality. for Fuller, as you will read in a short
while, this means that it had no inner morality. consequently it falls short
of being a proper legal system. because a proper legal system requires a
constant striving after "justice and decency."
- the "law is law" slogan. law is a fact; because it is a fact it is
susceptible to scientific treatment. ie. Weimar Constitution. and so one
should leave the question of value out of legal discussions.
-- again Radbruch's Objection: this position that proposes law is morally
neutral results in justifying individuals obeying "immoral" laws. this is
precisely what happened in Nazi Germany, leading to horrific results. ie.
the Nazi regime. to avoid this result we have to acknowledge that law is
not just law. law must also include a moral dimension. but Hart resists this
conclusion. for him Nazi laws were valid laws. however the fact that were
2080 NOTES 19
Copyright 2010-2011. Professor Je Kow.
technically valid does not entail that they ought to have been obeyed!
- Hart's example of the German Hausfrau who turns in her husband. legally
what should we do with her after the war comes to an end? what she did was
immoral. but was it illegal?
- some options in dealing with Nazi law on informers: (a) Fuller argues that
the law regarding informers because it violated moral norms was not a genuine
law. Fuller's argument is based on a new version of natural law theory. for
him the law must contain its own inner morality. this is different from
Aquinas' position.
- (b) Hart argues that the solution to the Nazi law on informers is to
retroactively invalidate the original law. it was a genuine law at the time,
but it was too evil ( ! ) to be obeyed. See Fuller on the problem of retroactive
legislation and judicial judgements.
- the problem with Aquinas' natural law approach is that it sees a
substantive purpose animating law. it has a thick notion of the human good.
this is dangerous because it can be used to justify the limitation of human
freedom, human rights, and to justify the intrusion of the state into the
individual's private life.
for Hart this is a procedural (beginning point) principle for
administering the law, it is not a substantive principle of justice
(end-point), it is neither moral nor immoral. it is natural procedural
justice. also ie. impartiality and objectivity.
- Fuller's Modern Natural Law {more Procedural than Aquinas• s Substantive

-version of Natural Law) :
- why is legal positivism opposed to natural law theory's notion that law
must have a purpose to be law? beca~se the theory of natural law sees the
purpose of law to be a moral purpose. for the legal positivist this poses
a potential threat to human freedom. hence we must separate morality from
legality/law. an example of what might happens under natural law theory:
- (1) prohibitions. you can't shop on Sunday. law as a barrier.
(2) compulsion. you must go to Church on Sunday. law as coercion.
(1) is negative, and (2) is positive. (2) forces you to do something
supposedly good, even if you do not want to do it.
- laws like (2) could force you to realize your human nature. they could
force you to be an excellent human being. Objection: but this is
self-defeating because to be excellent you have achieve it of your own free
will. natural law theory makes the private aspiration to be excellent a
public legal duty. this applies a very high and severe standard to human
conduct.·
- classical natural law theory argues for a maximal morality of aspiration.

law should be concerned with making us the best we can be. it should help
us in achieving the common good.
- Hart disagrees. for him the law does not involve a morality of aspiration.
being an excellent human being should not be made a matter of legal
2080 NOTES 20
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".//
obligation. this would give too much scope and discretion to the
authorities. instead there should be a basic set of legal obligations which
all citizens are required to abide by, and can rely upon others to live by.
ie. the Criminal Law.
- Fuller:
- there are two influential approaches to law. first the theory of legal
positivism which both Austin and Hart (in part) espouse. (1) legal
positivism advocates separating law from morality. recall that Austin
argues that we should examine law as an expression of state power (laws are
coercive commands), while Hart argues that laws are rationally normative
rules.
- (2) Fuller argues that we only come to know what law is, by knowing what
the purpose of law is, by knowing what the substantive purpose behind the
legal system is. all law prescribes with a goal in mind. law does not merely
neutrally describe the rational operation of the state. knowing the purpose
behind the legal system will enable us to answer the question why there ought
to be "fidelity to law," why we have a legal obligation. how the law was
made and operates determines our "fidelity to law." this is a purely legal
criterion. it generates only legal obligation.
- 1-2. The Definition of Law and Morality:
- Fuller: but the definition of law must be the definition of a good law.
because a good law is the standard by which to evaluate what law is. define
law by the ideal of what law ought to be. the notion of a standard is built
into any definition. we can define something either by a common denominator
or by what is the best. what makes a legal system good? Positivism argues
that it is difficult to define morality. morality is socially divisive.
hence don't contaminate the definition of law with a confused definition
of morality.
- 3. The Moral Foundations of the Legal Order:
Hart argues that law is more a system of rules than a series of commands.
but according to Fuller although Hart mentions the importance of fundamental
rules, he does not explain them.
- but for Hart what is the basic procedure by which law is made? he replies
that it is the "rule of recognition." this rule of recognition is sui
generis. it is not a rule like any other rule. consequently what is not law
makes law possible! for Fuller the morality implied in the rule of
recognition makes law possible. in other words, morality is the necessary
condition for the existence of law.
- 4. The Morality of the Law Itself:
- Fuller continues that the law must express good order, not just any order.
hence law must contain an implicit morality. "the morality of law itself."
this morality internal to law is the condition for the existence of law.
it is the moral infrastructure of law and of the legal system.
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- Objection: now Hart has neglected the internal morality of law. he fails
to see that the morality internal to law means that the legal system is an
achievement, not a given. thus the existence of the legal system is a matter
of degree, not an all or nothing proposition as in analytic jurisprudence
or legal positivism.
- hence in regards to Nazi Germany, despite the mutilation of its social

order' it can be asked to what degree a legal system existed there. ie. did
the Nazi legal system meet the threshold test of law, and in fact how far
did it fall short of the ideal of law? in sum: the internal morality of law
determines the degree of law or legality present in a legal system.
- but what is the internal morality of law? for Fuller it is a morality of

aspiration, rather than a morality of duty. ie. make the best use of our
short lives. (Cf marginal utility in economics to make best use of scarce
resources . )
- Fuller's theory is a procedural theory of natural law. it is not

substantive/end-directed as Aquinas' theory is. Fuller's theory does not
judge particular issues. it is open in this respect. note that Fuller's
natural law theory (an inner morality of law) embraces both the morality
of duty and the morality of aspiration.
- what are the conditions that violate the internal morality of law:
- "Eight Ways to Fail to Make a Law:"
(1) laws made on an ad hoc basis. ie. instead of ruling by laws the
authorities rule by discretion.
- (2) laws that are not publicized, or promulgated. ie. secret laws, trials.
- (3) laws made retroactive. ie. informer's case. you are commanded to do
something yesterday! ex post facto criminal statutes. ie. tax laws.
- (4) laws that are obscure. ie. regulatory agencies.
- (5) laws that contradict each other. ie. human being and person.
(6) laws demanding the impossible. ie. this may be pedagogically
appropriate, but it is not legally appropriate.
- (7) laws that change too frequently in order to try to keep up changes
in society. laws should be constant. ie. tax laws.
- ( 8) laws that are not administered properly. ie. conflict between the laws
and their administration. ie. Ontario family support payment services.
- summary: ad hoc; secret; retroactive; obscure; contradictory; requiring
the impossible; frequent changes; lack of fit.
- note that only a total failure in all of these aspects results in a

purported legal system not being called a legal system properly speaking.
and since it is not possible to combine all these conditions perfectly, the
existence of a legal system is always a matter of degree. we morally aspire
to create the best legal system. again purely legal procedures do not make
laws.
- Restoring Respect for the Laws ... :
- Fuller then turns to the problem of the Nazi "legal system." he deals in
particular with the problem of Informers, who took advantage of Nazi laws
to get rid of certain people, although these people were innocent.
2080 NOTES 22
- (1) Hart argues that the law regarding informing on others was technically
the law at the time. still the social situation in which this law was applied
was odious. it would have been better not to obey this law. but to resolve
the problem of the past law regarding informers we should now enact a
retroactive criminal statute to punish these informers for their actions
that were legal at the time when they committed them! this would be an ex
post facto criminal statute!
- (2) Fuller retorts that we should instead consider the Nazi state to be
a lawless state. its "laws" were not really laws. they were violations of
law. why? because for law to be law, for a legal system to be a legal system
it must be made in accordance with the inner morality of law.
- but at the heart of the Nazi legal system there is no moral infrastructure
or morality. there is only the void of moral corruption, which entails the
corruption of the legal system itself. the Nazi legal system violated the
8 aforementioned conditions for the existence of a legal system.
consequently the Nazi state was a state without legality. its "laws" were
void.
- Hart objects on technical grounds to Fuller's interpretation. for him "law

is law." it is not a matter of morality. recall that he would retroactively
penalize the activities of informers. yet note that the Nazis also used
retroactive statutes to cure "past legal irregularities." for Fuller this
means the deterioration in the form of legal morality and thus law. and the
Nazis also employed secret statutes and unlimited administrative discretion
among other immoral means.
- Fuller returns to the example of the soldier who in private criticizes
the Nazi regime. his wife informs on him to the authorities. what he has
done is publicly, but not privately prohibited. this fact is ignored.
instead we have a totalitarian elision of all private life into a matter
for public concern.
- did his wife have a moral obligation to obey such an immoral law? no she
did not since it was not morally speaking a law. the very way this "law"
was enforced was known to be arbitrary and so immoral. on the other hand,
did she have a moral obligation not to obey this decree? probably yes. that
she acted in concert with this immoral decree makes her an accomplice in
an immoral system. note this is not an immoral legal system. the system's
immorality makes it impossible for it to be a legal system.
- so what meaning can Hart assign to the phrase "fidelity to law" in this
circumstance? indeed how can Hart make sense of our moral obligation to obey
the law in such situations?
- Mill- Promoting individual Liberty:

- Liberty-Limiting Principles:
- Overview:
in this section of the course we will examine the relationship between
law and liberty, or between authority and freedom. we now ask what are the
limits to individual liberty? in other words, what are the justifiable
liberty-limiting principles? in our liberal-democracies the presumption is
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in favour of individual liberty and individual rights. duties and

obligations take second place.
- what is most important for us is the freedom of the individual to do what
he desires to do, and what is in his interest. but the individual 's freedom
is not absolute. his actions are curtailed by public opinion and by public
law. nevertheless, we have moved in the direction of greater individual
liberty.
- an example of private liberty as an issue: the Wolfenden Report in 1957

was an inquiry into whether "homosexual offenses and prostitution" should
fall into the area of law (criminal law) or not? are these purportedly
private activities any business of the state and the legal system? two
positions can be adopted:
- (1) the strict position: every (sin) immoral act is a crime, which involves
the public and the state. yet remember Aquinas. not all vices and virtues
fall within the orbit of law. there are private virtues and private vices
beyond positive law.
- (2) the Wolfenden Report concluded that: "It is not the duty of law to
concern itself with immorality as such ... " so private morality and public
morality are distinct from each other. furthermore these purported crimes
of homosexuality and prostitution are "victimless crimes." but if there is
no victim, then there is no crime. consequently these activities should not
be subject to law.
- Mill:
- 1. Mill's question is: what is the justification for limiting the liberty
of an individual?
- his answer is: (a) the only purpose for interfering with, or limiting the
liberty of the individual, is to prevent him from harming others.
- (b) it is not legitimate to interfere with an individual or prevent him
from harming himself. if his conduct only affects himself he that is his
business alone.
- 2. what is the scope of individual liberty?

(1) the individual possesses the freedom of consciousness to think for
himself. he possesses the liberty form his own opinions.
- (2) the individual possesses the liberty to choose to act according to
his tastes and to pursue what he desire. ie. to choose his own plan-of-life.
- (3) the individual possesses the liberty to associate with those whom he
choose to associate.
- in sum: for Mill the only worthwhile individual freedom is the freedom
to pursue the good in his own singular way.
- 3. the basic freedom for Mill is the freedom of expression of opinion.
why? simply look at the costs of denying freedom of expression:
- (1) a silenced opinion could be true.
- (2) only through the clash of opinions is the truth disclosed. and every
opinion seems to have a portion of the truth.
2080 NOTES 24
Copyright 2010-2011. Professor y. Kow.
- (3) only opinions that are tested in debate can be held with conviction.
- (4) finally freedom of opinion keeps doctrines and opinions alive and
prevents them from becoming rigid. ie. a defence of free speech.
- in sum: freedom in general and freedom of opinion are conditions of
individual self-realization. hence the state should be
non-interventionistic. except to help the individual become more free.
- 4. 4 Liberty-limiting Principles:
(1) the law can legitimately (with authority) limit the individual's
liberty if he harms another. Harm Principle. Mill's position. ie. criminal
activities.
Question: (a) what constitutes harm? physical, emotional. yes.
psychological? (b) additionally can the harm be collective as well as
individual? ie. libel. Mill's principle of harm has a causal and transitive
nature. example:
A harms B.
individual physical individual
corporation emotional society
(2) the law can legitimately limit the liberty of the incompetent
individual and the liberty of the competent individual if he harms himself.
(liberty/right to privacy and private activities) the Principles of Weak
and Strong Legal Paternalism. ie. seat-belts, smoking, alcohol, etc ... we
go beyond Mill in the later case.
- Question:· in the case of Strong Paternalism doesn't the law violate
individual freedom? after all we are dealing with an independent rational
individual who presumably possesses the right to decide how he wants to live
his life.
- (3) the law can legitimately limit the individual's liberty to prevent
him from engaging in immoral conduct. this deals with so-called "victimless
crimes." this position advocates the legal enforcement of morals, or the
enforcement of conventional morality. this extends to actions rather than
to beliefs.
- this is the Principle of Legal Moralism. ie. homosexuality, prostitution,
thinking certain thoughts, Sunday shopping, S & M. the Wolfenden Report
rejects legal moralism.
- Question: doesn't this principle expose society to the danger of the
tyranny of the moral majority. a majority forcing its morality on
minorities. isn't such intolerance anti-liberal? in an extreme form it can
become totalitarian and the public realm can end up obliterating the private
realm.
- (4) the law can legitimately limit the individual's liberty if he engages
·in public conduct which is offensive to others. this is behaviour which
causes, embarrassment, humiliation, etc ... this is the Offense Principle.
ie. verbal and visual depictions of women and minorities. pornography.
insensitive speech and behaviour, poisoned environment.
- Question: who will judge what is objectively offensive? the reasonable
person standard. or the reasonable woman standard?
- 5. (1) for Mill the only valid liberty-limiting principle is the harm
principle. he now turns to the question of the individual's relationship
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to society.
- Mill: he notes that if the individual lives in society and benefits from
it, then he owes society a debt: (1) he ought not to injure the interests
of others; (2) he should shoulder his fair share of the social burdens.
- (2) yet even in these circumstances Mill rejects the principle of Legal
Paternalism in favour of individual liberty. he discusses the harm principle
again. Objection: why shouldn't we prevent the individual from harming
himself? responses:
- (a) because a mature rational adult is the best judge of his own interests.
- (b) because he is also the person most interested in his own well-being.
and so he, more than anyone else, will act to further his own well-being.
- given this, the state should be satisfied with securing the individual's
observance of general rules in conduct regarding others. beyond that point
the individual should have the liberty and the right to cultivate his own
individuality.
- (3) but the individual does have a duty to himself: the duty of self-respect
and self-development. but this duty makes the individual only accountable
to himself. he is not accountable to anyone else.
- note that Mill's argument for individual liberty presupposes the modern
distinction between public and private conduct, and most importantly
between public and private morality.
- 6. Mill recognizes that there are some individuals who are excluded from
the principle of liberty: children, feeble-minded, and backward peoples.
in their cases Legal Paternalism can legitimately be exercised since these
individuals are not rational and so not at liberty.
- they are not free beings. hence they are restrained for two reasons: (a)
to prevent them from causing harm to others; (b) to protect them from
themselves for their own good. they are not competent to make their own free
decisions.
- 7. Objection to Mill's Harm Principle: (1) the harm an individual does

to himself has repercussions on his family and on those close to him. Mill:
but it is society that raised this individual. it has only itself to blame
for his present conduct. it could have prevented the problems it now faces.
- in any event to try to compel this individual to be good would be
self-defeating. an individual has to be allowed his freedom and right to
act in private as he sees fit. we can express our moral disapproval of an
individual, etc ... but we cannot legitimately use the laws to restrict his
liberty.
- (2) Objection: what about the bad example set by an individual who harms
himself? surely society should intervene here.
- Mill: (a) we have to ask what a bad example teaches? does it teach one
to do what the individual is doing, or does it offer a warning against what
he is doing, ie. this conduct brings pain in its wake? (b) moreover state
interference is a blunt instrument. it cannot be wielded very effectively.
( c) and lastly when one objects to a bad example one is normally expressing
one's distaste for it. one is making a disguised moral judgement. one is
not harmed by the example.
2080 NOTES 26
- Justice - Types of Duties and Rights:
- Liberty and Equality involve trade-offs. they are not fully compatible.
- Justice. Distributive Justice and Compensatory Justice.
- (1) Formal Justice is formal: give equals to equals, and unequals to
unequals to unequals.
- (2) Material Justice. what criterion is to be used in the distribution
of benefits and burdens? (a) share. (b) need. (c) e~fort. (d) merit. (e)
contribution/productivity. (f) fair free exchanges.
- note the justice or just procedures/laws (ie. free market) may give rise
to unjust results. do we need equity to remedy this situation? this would
be a situation of imperfect justice. ie. is it equity in the Riggs case?
- (1) Negative Rights. this is the liberal private right not to be interfered
with. the duty correlative to this right on the part of everyone else is
to leave the individual alone. note that the notion of negative rights
focuses largely upon individual freedom, and individual privacy. ie.
property rights.
- (2) Positive Rights or Ideal Rights are rights to have a certain good
(product) or service. ie. health, education, job, etc ... no correlative
duties are present here. no individual and no institution is specified as
being responsible for fulfilling a positive or ideal right. ie. WHO on human
rights to healthcare and education.
- this does not mean that positive rights are unimportant. ie. natural rights
(to equality, liberty, and fraternity) ->manifesto rights-> human rights.
they were Revolutionary ideals that formed the Western World. they were
realized concretely through political struggle. now they have become
institutionalized rights.
- (3) Prima facie (conditional/provisional) rights and duties are rights
or duties an individual possesses, all things being equal. ultimately one's
actual rights and duties are subject to judicial determination. ie. the
right to property in Wartime. distinguish between one's actual/absolute
right and one's conditional or prima facie right.
- (4) Conflicts do arise between various categories of Rights. ie. between
(a) property (individual) rights and (b) social (collective) rights. why?
because inequality in (1) can lead to a deterioration of equality of (2) .
socio-economic inequality can breed political inequality. ie. wealthy
individuals and Corporations, and average individuals.
- (5) are there then any absolute rights or duties? or are all rights and
duties conditional? (a) the right of innocent individuals not to be killed.
(b) the right of individuals not to be tortured.
- this can be reformulated in terms of duty: (a) everyone has a duty not
to kill innocent individuals. (b) everyone has a duty not to torture human
beings. note that regarding animals we seem to recognize a duty not to be
cruel to them. and yet do they have any rights in this matter? apparently
not. so there can be duties without rights. do children have rights? do we
have duties towards them? or do we have responsibilities towards them?
- (6) (a) traditionally duties were considered to be fundamental. (b) in
modernity rights are considered as more fundamental than duties. we possess
a new sense of human individuality, individual freedom, and individual
rights.
- (1) the violation of a right is an unjustified action against a right.
the right is still a valid claim but it is ignored and overridden. the right
is wronged. ie. some aspect of due process is denied. the rules of evidence
are tampered with. ie. the Milgaard case. ie. the patient's right to be
2080 NOTES 27
Copyr~ght 2010-2011. Professor J. Kow.
informed of his or her treatment and to decide whether to proceed is denied.

- (2) the infringement upon a right is a justified action overriding a right.
why? because all rights are only prima facie valid. in this instance the
right is temporarily suspended in the face of a more pressing need. ie.
Emergencies, National Security. ie. the censorship in the Homolka case. Paul
Bernardo's right. s.11 (d) the right to be presumed innocent. and the
public's right to know.

Equality/Discrimination. Employment Equity - Compensatory Justice
Freedom of Expression, Offense Principle, Privacy Issues
- 1. Discrimination occurs when:
- (1) an individual is judged on the basis of an irrelevant property (she

is not judged on the basis of individual merit, but on the basis of some
property she possesses in virtue of a group she belongs to) . what are
irrelevant properties?: see s.15 (1) of the Charter, "race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability."
- (2) this causes the individual to be treated differently (in a morally
unjustified and prejudicial manner) from others.
- (3) she is harmed by being treated in this manner; her legitimate interests
are arbitrarily blocked. who are the victimized groups? visible minorities,
women, the handicapped, aboriginal peoples. perhaps also the elderly,
homosexuals, those with Aids, those who look different, etc ...
- the various situations of discrimination: (a) individual and intentional.
(b) individual and unintentional. (c) systemic or institutional and
intentional. (d) systemic or institutional and unintentional. this last one
is the key one. the Court in Andrews (1989) directs us to look at the impact
of discriminatory practices, not at the motive. so one may be held
responsible for discriminatory practices although one did not intend them.
- how do we know discrimination is systemic? after all it is unintentional.
the prima facie evidence for discrimination is under-representation or
over-representation in any area of, for example, the general employment
pool. ie. (a) school admissions. (b) but especially in any phase of
unemployment, screening and recruitment, employment, promotions, wages,
firings etc... we have to look at the group. discrimination is a
group-centred phenomenon.
- question: is compensatory discrimination (employment equity) compatible

with justice? we are not asking whether it is required by justice.
- 1. (1) the history in the US. it is accepted now that deliberate barriers
against admissions of blacks and women should be abolished. but these
barriers still persist despite AA. they persist in other ways. ie.
attitudes.
- (2) sometimes these barriers are individual. conscious or unconscious.
intentional or unintentional.
- (3) more importantly these barriers are systemic. they are part of the
social structure and social system within which we live. systemic barriers
can be consciously (intentionally) maintained and constructed, or
unconsciously (unintentionally) maintained and constructed. in sum:
certain groups are systemically advantaged and certain groups are
systemically disadvantaged.
2080 NOTES 28
- hence we need to adopt compensatory measures to rectify this unequal

situation. ie. preferential programs, special training programs, financial
support, tutoring for certain disadvantaged groups. in this way we try to
increase equality of opportunity for all.
- (4) but then we realize that formal equality of opportunity (preferential
programs, etc ... ) falls short. informal barriers can still block people.
ie. old boys' network. the phenomenon of networking. so should we
institutionalize a system to help disadvantaged groups? how do we reverse
the unequal differential (discriminatory) treatment blacks and women
experience?
· - (5) but are the present criteria, for admission to school or to employment,
relevant for predicting performance perfect? no. so maybe we can infringe
upon them to help disadvantaged groups. this would not be wrong. but then
what grounds should we employ to admit groups and individuals to desirable
positions?
maybe use different standards to measure the ability of these
disadvantaged groups? we do this to ensure equality of results.
- Objection: this is too open-ended a solution. ensuring equality of results
brings its own costs with it. so maybe we should act on the principle that
different abilities do not merit different rewards. this is meritocracy.
maybe this would produce more equality. differential rewards are a great
problem. maybe greater than discrimination.
- 2. the liberal idea of equal treatment. judged based solely on. the
abilities, skills, etc ... required for admission to a job etc ... this is
equality of opportunity. but are blacks and women receiving equal treatment?
getting a fair break? but the liberal approach stressing equality of
opportunity seems too weak to remedy the inequalities (inefficiencies)
present in our social system.
- most liberals assume that individuals and groups deserve their starting
positions in society. but these starting positions are determined
arbitrarily by the natural lottery. and the uneven starting positions give
some individuals and groups an advantage which they turn into a compounded
advantage as time goes on. it is difficult for those behind to ever catch
up to those ahead.
- the point: no one deserves his starting position in life. and therefore
no one deserves the reward that flows from having a certain starting position
in life. hence inequalities are contrary to what people deserve.
consequently people with different talents do not deserve differential
rewards, although they may deserve different opportunities to develop their
talents.
- 3. now regarding racial and sexual discrimination. maybe admission quotas
are needed to ensure proportional representation of all groups at
university, in proportion to their representation in the population as a
whole. in most societies we reward individuals based on the demand and
perceived need for their skills. these individuals are gifted with certain
talents. ie. intelligence. this is the great unequalizer in society.
superior intelligence brings greater rewards generally speaking. ie. a
technological society.
- 4 . but is compensatory discrimination (?) (employment equity) compatible
with justice? we are not asking whether it is required by justice.
- an argument that compensatory discrimination (employment equity) is not
seriously unjust. it may be warranted by considerations of social utility.
equality of opportunity and equality of results may benefit society overall.
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Copyright 2010-2011. Professor J. Kowo
ie. produce the best state of affairs, a larger pool of skilled candidates.
- more competition, more excellence. artificial barriers informally barring
blacks and women from certain positions are removed. the resulting free
movement of labour is more efficient. ie. free trade rather than
protectionism (trade barriers) .
- further what is the advantage of a social system that discriminates? it
does not make use of developing all of its members' skills. it harms those
whom it discriminates against. ie. the aristocracy critiqued by the
bourgeois.
- maybe this is compensatory discrimination (employment equity) reverse
discrimination. this is inaccurate. bad discrimination unwarrantedly
advantages certain groups for no good reason and disadvantages other groups,
again for no good reason. this is harmful and arbitrary.
- employment equity (misnamed affirmative action/reverse discrimination)
tries to bring about a state of equality that was not previously permitted
to occur in the first place. it is just trying to level the playing field.
- think: we allow more women into medical school. males complain that
individuals should be allowed in on the basis solely of ability. purely
intellectual ability? is this the proper criterion for admissions?
- but who will serve female patients in the community? they may well want
female doctors. and generally they do. is it fair to women as consumers and
as citizens to be forced to deal with male doctors who may not understand
their problems as well as a female doctor might? ie. Cf the set percentage
of Northern Ontario students accepted into Southern Ontario medical
schools.
- the best doctor, the best police person is determined by the conununity
he or she is going to serve. ie. also the case for more black student to
be admitted to medical school. greater chance they will serve the black
community. is it likely that white doctors in the USA are going to serve
the inner city poor black community, and the black community at large? no.
- maybe whom society needs should determine whom is admitted to the
professions and to jobs? note that this argument is based on social utility,
(utilitarianism) . the better placed are being disadvantaged, and the worse
placed are being advantaged. the overall result is good.
Objections: (1) the better qualified may grow resentful. (2) the
self-esteem of those who are given special admissions may be damaged. look
at the context.
- in any event there will still be inequalities of intelligence that no
employment equity program will be capable of resolving. we will still have
to balance individual liberty with social equality.
- 5. what is the message expressed in affirmative action? that there should

be fair opportunity, mutual respect, and respect for all. the instantiation
of this message is a matter of prudence, and sensitive political judgement.
- whether we are personally guilty or not we admit that the disadvantaged
have been wrong and discriminated against. and that remedial steps must be
taken. ie. apologies, recognition, preferential programs, etc ... See India.
- these preferential programs are neither charity, nor entitlement. they
are an opportunity. they will have drawbacks no doubt.
- The Limits of Freedom of Expression.
1. For Freedom: individual freedom v. state coercion. Mill. freedom of

expression is of prime value in a liberal society. the costs of quelling
2080 NOTES 30
it are outweighed by its benefits. freedom of expression is the basis of

a liberal/free society. two reasons for freedom of expression:
(a) a silenced opinion may by partially or wholly true. freedom of
expression both decreases and escapes the risk of perpetuating untruths.
moreover no individual is infallible. so even if there are infallible
statements (absolute truths} , no human being can draw the line between what
is fallible (truth} and what is infallible (error} in an infallible
(error-free} manner. freedom of expression is also the basis for our
adversarial theory and practice of politics. we hold that truth only emerges
out of deliberation and contrasting points of view. note the parallel
between the process of law and the process of politics.
- (b) and even if the opinion is false, it still forces us to look at our
convictions in a new light. and this produces the greatest good for the
greatest number. this is a utilitarian argument.
- 2. Acceptable Limits to· Freedom of Expression: now certain expressions
of opinion should be prohibited because they cause harm. the harm principle.
(1) Defamatory Expressions and Malicious Truths. (a) Defamatory
Expressions. in Canada libel has to target a specific individual. these
expressions either damage or significantly diminish an individual's
reputation. reputation is an important item for the individual. (such
statements can be countered by means of a civil suit.)
- there are statements which although they injure an individual's reputation
are still allowed. privileged statements, ie. fair comment (book and art
reviews) , political comment, analysis of a financial company. why? because
the public interest is furthered by permitting freedom of expression here.
(b) Malicious Truths: the statement made is actually true. but it is
irrelevant, more a part of idle gossip. individual's reputation v. public
interest in truth·. public interest should not take precedence when the
matters concerned are either past misdeeds, or non-moral failings, or of
a private moral nature. truth in general v. truth about a particular
individual. we must weigh the public and personal interests involved. ie.
a reformed young girl/now woman with a questionable past. should it be
exposed? does the public have a right to know about it?
(2) Invasions of Privacy: (Criminal Code. also there are various new
Privacy Acts) these invasions harm the individual concerned. they mar his
peace of mind, dignity. and conflict with his right to privacy. an individual
has a right to be left alone. the right to privacy v. public's right to know
(media}. question: what news is "news that is fit to print?" public figures
must accept a certain contraction of their private life, but not its
disappearance. where is the line to be drawn? also consider the case of
reluctant public characters. a clash of interests. individual privacy v.
public curiosity. also think of Facebook, Twitter (generally the "social
media) and privacy issues around the Internet, Google Eye, thermal imaging
etc ...
- (3) Causing Panic: (a) intentional. some expressions can cause those who
hear them to react in a violent or harmful manner. these expressions can
cause a "breach of the peace, " and thus incite people to crime and to revolt.
here the issue of potential individual and social harm is pertinent. ie
"shouting fire." note: the circumstances decide the issue. but intending
to cause harm in such a situation is punishable. (b) recklessness. even if
the individual's actions do not result in harm, he is responsible for his
actions and may be punished if there was a high probability that they would
lead to harmful results, thereby exposing others to unnecessary danger. ( c)
an individual can be punished if his action is either intentional or
careless. in Holmes' words if his action poses a clear and present danger
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to others.
(4) Provoking Retaliatory Action: an individual by his words causes
violent action to be directed against himself. his words bring about
physical harm. (a) unintentionally. then perhaps police protection is
required in this instance. (b) intentionally. this is a direct provocation.
it can be so severe that even a reasonable individual is overcome. (Criminal
Code regarding defences based on being provoked by some individual) . then
the harm principle may justify the suppression of freedom of expression.
but note that there are also other ways to deal with provocative speech.
note also that provocation by spoken words is more potent and dangerous than
that caused by books/written works. T.V., and music.
- (5) Incitement to Crime or Insurrection: (Criminal Code). (a) counsel,
command, or encourage another to commit a crime. so one can be an accessory
before the fact. (b) inciting another to commit a crime. not "planting a
seed" metaphor, but rather the "spark and tinder" analogy. the law
presupposes that the individual intends the natural and probable
consequences of his actions. (c) the individual incited is the immediate
cause of the action, not the one who incited him. but the inciter can prod
the incited into voluntarily doing what he otherwise would not do. this is
a case of causing someone else to do something voluntarily.
- 3. Sedition: (Criminal Code) instance of riot or breach of the peace.

originally it meant to cause dissension. to weaken the duly constituted
authority. advocacy. (a) advocating violence. ie. revolutionary violence.
when does this occur? the temporally stretched nature of the action. (b)
advocating assassination. the proximity to the action of the advocate is
relevant in analyzing these cases. use the clear and present danger test
to apply the harm principle in this area. this entails the presence of
intent, preparation, and direction towards carrying out the act in question.
See Terrorism as a whole new area of the Law especially in the USA. expansion
of Immigration Department. military tribunals etc ... a threat to civil
liberties and constitutional rights? the aspect of the need for secrecy as
a cloak on information available to the public?
regarding: conspiracy/dissenting voices. example: now USA Homeland
Security. we have to weigh the private interests of the suppressed group,
the public interest in law and order/peace, and the public interest in the
free flow of information dealing with policy. prudence needed in assigning
weight to each of these.
- Privacy Issues:
- USA SC (Supreme Court) Roe v. Wade: 1973
- 1. involved a statute that restricted legal abortions to those necessary

to save the mother's life. verdict. a woman has a right to privacy, and within
this privacy she has the right to decide what she will do with her body.
- this right to privacy is not mentioned in the constitution, but it is
implicit there. a right to personal privacy. Griswold (1965). the Court
overturns a statute that made the use of contraception illegal. a criminal
offense. there is a right of marital privacy in the "penumbra" of numerous
Amendments of the Constitution. the individual under law has a recognized
zone of privacy that the state cannot intrude into.
- 2. it is also argued that the right to privacy is absolute. therefore in
the case of abortion the woman would be able to terminate her pregnancy
2080 NOTES 32
whenever she chooses to.

- the Court rejects this position. the right to privacy is limited; it is
not absolute. but not because the fetus is a person in law. the fetus is
not a person in law. the SC does not need to resolve the issue of when life
begins. it begins at live birth. it does not begin at quickening.
- 3. the fetus' life can be considered to warrant protection when it is
viable. ie. outside the womb even though it requires artificial support to
live. the unborn are not "persons in the whole sense!" or not persons at
all. certainly not legally, but morally are they persons?
- the states are allowed to protect the fetus at the point of viability.
this occurs in the second and third trimester. in the first trimester the
woman has the right to an abortion (in her privacy). but states can regulate
abortion in the second and third trimesters. a compelling point has been
reached. prior to this compelling point a woman has the right in her privacy
to make her own decision about whether to abort or not.
- 4. Dissent: (1) many decisions to abort involve cases in which the reason
for the abortion does not concern a threat to the health or life of the
mother. merely a matter of convenience. ( 2) and there is no constitutional
right to privacy to support a right to an abortion. instead this decision
of the court is an improper exercise in strong judicial review. it is a
quasi-political decision usurping the role of legislators.
- Principles of Constitutional Interpretation:
- 1. (1) literal interpretivism. "judges should confine themselves to

enforcing norms that are stated or clearly implicit in the written
Constitution." Judge R. Bork.
- (2) a recent theory. the alternative view. the SC based on fundamental
values should give content to the open-ended provisions of the constitution.
the courts have to make substantive choices (equality and freedom). so where
can the SC draw its values from?
- 2. Judge's Own Values:
- a judge decides a case based on his own values? ie. women should behave,
dress a certain way.
- Objection: this violates the democratic theory of government. no. the
judges will not run the country, they will merely give the constitution
greater content. and even in this case the fact that the SC is a not a
democratic institution curtails its powers of judicial review.
- no. too sanguine. judicial activism tends to be self-perpetuating. the
SC strikes out ahead of the public. ie. cases of gross abuses where it must
intervene.

Criminal Law, Causation and Responsibility, Defences
Business Law. Private/Tort Law. Liability
- (1) State/Prosecution v. the accused. in a crime the State is the party

wronged. thus the prosecution presents the case. in this case the accused
must be proven guilty beyond a reasonable doubt. if there is any doubt the
benefit of the doubt must be given to the accused. the judgement is either
2080 NOTES 33
guilty or innocent. if the judgement is guilty, then a punishment is

assessed. the convicted individual is criminally liable.
- (2) a crime is composed of two elements. (1) actus reus. the physical
component. the action in question is prohibited. this illegal act is also
prima facie intrinsically (morally) wrong. (2) mens rea. a voluntary
state-of-mind is involved. the individual acted intentionally,
purposefully, or knowingly. this concerns knowledge, intentions, desires,
recklessness etc ... but the individual is not punished for merely having
criminal thoughts, for mens rea alone.
- if (1) actus reus and (2) mens rea are found together then the individual
can be charged with a crime. if he is found guilty then personal fault is
found with him. criminal liability is dependent upon a finding of this prior
fault. the individual is then condemned and sentenced in criminal law. there
is a moral core to criminal law. Law Reform Commission: "criminal law is
applied morality."
- Case Study:
- 1. (1) A throws a cigarette away, and (2) B pours petrol on it causing
(3) a forest fire. the analysis: B causes the fire. why? because B acts
voluntarily. the causal chain running from A to the fire has been broken.
- if A caused B to cause the forest fire, then we would have a possible case
of coercion. would depend upon how A caused B to act. ie. how A acted upon
B.
- [A - >] B -> F.
- 2. (1) A throws a cigarette away, and (2) a breeze comes up causing a (3)
·forest fire. the analysis: be it intentionally or unintentionally, A caused
the fire. why? because we corn~ider condition (2), the breeze, to be a part
of the normal course of natural events. it is not an intervening factor.
it is part of the natural circumstances. of this complex set of causal
processes.
- A (N/Breeze) -> F.
- 3. (1) A knocks B over and (2) B falls to the ground, and (3) a tree falls
on B, and kills him. the analysis: the tree kills B, not A. even if A intended
to kill B, it is still the tree that killed B. so although A attempted to
kill B, the falling tree killed B instead. in the present case, the
conjunction of two events removes A as the cause of B's death. B's death
is an accident.
- A#> B; Tree.-> B.
- (1) opportunities. if A provides B with the opportunity whose natural

consequence is harmful to A, then although B causes the harm, A due to his
own negligence is partially responsible for the harm. this is fluid. ie.
drinking at bar. provocative clothing. no longer considered as an
opportunity. a policy change in understanding sex crimes. not sex crimes.
really violent crimes.
- (2) reasons. A advises or persuades B voluntarily to do something harmful.
B is the cause of the harm, but A is responsible for the hann done by the
free agent B. (Criminal Code). in both cases, (1) and (2), B causes the harm,
but A is also to a lesser or greater degree responsible for it as well.
- A -> B -> H.
- in sum: note that the sense of legal responsibility extends beyond the
sense of causal (scientific) responsibility. legal-responsibility is not
2080 NOTES 34
the same as causal responsibility. but doesn't legal responsibility refers

to and includes proximate causal responsibility?
- Legal Liability Responsibility:
ie. Fuller's Spelunceans. Talk about in class. Murder and Defence.

- Defences: the defence of necessity. when a law is violated one can defend
oneself in two ways: (1) by justification. what the defendants did was not
wrong. they were justified in doing what they did, anyone in their position
would be justified in doing the same thing.
- only in the case of self-defence- -when one's own life is in danger- -would
the defence of necessity justify the taking of another individual's life.
the judges do not seem inclined to regard Whetmore's death as a case of
self-defence. one might see it as a case of manslaughter if this category
was available in their criminal code.
- (2) the defence by excuse. (this was used in the Morgan case.) it is not
applicable here. for instance the defence of duress. these were
extraordinary conditions. the defendants acted in as civilized a way as
possible. they needed a source of food, and they chose the victim by lot.
- there are no other material facts to be considered. there was no other
path of action. what they did was technically wrong, but it is excusable.
- Sexual Assault - Regina v. Morgan:
- Morgan invites three companions home to have sex with his wife. forcible
sex. violent. he tells them his wife is kinky. but she is NOT, and so
experiences being raped. Morgan is charged with aiding and abetting rape.
- the three defendants claim that they did not have mens rea to commit rape.
they did not intend to have sex with Morgan's without her consent. why?
because they honestly believed that Morgan's wife liked forcible sex. a
defence of honest belief.
- they argue that an honest belief is enough to excuse them, even if- this
honest belief was not reasonable. how should we construct the intentions
of these defendants? subjectively or objectively? using what standard?
- Morgan Rule and Rape:
- 1. the Morgan rule: one can't be convicted of rape if one honestly believes
that the victim is consenting. there is no mens rea present for there to
be a crime. so the problem of determining what mens rea is and the role it
plays in crime. what test should we employ in interpreting the defendants'
intention/mens rea? the subjective test or the objective test? or another
test?
- the subjective interpretation of mens rea. if the defendant honestly
believes that the woman is consenting he can't rape her. (we now say sexual
assault.) his belief can be either reasonable or unreasonable. his belief
in her consent, no matter how unreasonable it may be, is incompatible with
an intent to commit rape. because the mens rea of the subject is a constituent
part of the crime.
- if mens rea or intention is absent, then there is no crime of rape. it
is legally impossible to commit rape without the mens rea or the intention
2080 NOTES 35
to commit rape. the defence here is a defence of mistake of fact. a subjective

approach is taken to this mistake of fact. note that a mistake (or ignorance)
of law is no defence or excuse for the criminal action. (Criminal Code) .
- 2. (1) should we treat rape as a strict criminal liability offense? then

intention would not have to be proven. one is guilty of rape if intercourse
is unconsented to. the state of mind of the perpetrator is not considered
relevant. See statutory rape as a strict criminal· liability offense.
(2) in private law strict liability offenses are relatively minor
offenses. they concern everyday problems of administration and regulation.
ie. traffic, liquor, foods, etc ... called violations, and if liable, then
costs are the result.
- (3) strict criminal liability. serious offenses that do not require proof
of intent. ie. possession of burglar's tools, recently stolen goods, etc ...
here the defendant has to prove his innocence. the presumption is that he
is guilty.
- originally, what we now consider criminal law, may have been based on
absolute or strict (moral) liability, regarding both individual and
communal responsibility. ie. Greek Tragedy, and Medieval villages. then the
Christian notion of intention mitigates this original approach.
- 3. problems: (1) while strict criminal liability disturbs our sense of
justice, the subjective approach to liability seems too loose, too loaded
in favour of the defendant. so social attitudes favour an objective
liability approach based on retributivism. (2) objective liability. ie.
ignorance of the law does not excuse. we determine the defendant's intention
by considering the natural consequences of the action and the circumstances
of the action. this is a constructive crime. we impute guilt by applying
an external standard, the reasonable person standard.
- we do not consider the particular circumstances/facts of the case in a
subjective manner. so a mistake of fact defence would not be interpreted
in a subjective manner. it would be interpreted in an objective manner. we
ask how would reasonable individuals act in the position of the Morgan
defendants? would reasonable persons act as the Morgan defendants acted?
- 4. it is important because it leads to a reaction in the Morgan result.

it leads to a subjective interpretation of mens rea. if the objective
liability/reasonable person standard is applied this is the doctrine of a
constructive crime.
- the relevant test: what intention would a reasonable individual have here?
what would a reasonable person have foreseen?
- Morgan. Problems: how can the husband be convicted of aiding and abetting
rape if it did not occur? is this attempted rape? but they were not attempting
to rape her. and yet she did experience rape.
- rape convictions are difficult to obtain. (1) concern about women who make
false accusations out of sexual malice. possibly convicting some innocents.
thus we need the subjective approach to the intention.
- (2) but what about all the women who never report incidents of rape? thus
we need an objective approach to the intention for social policy reasons.
- apply the objective liability test in Morgan. the mistaken honest belief
of the defendants involves severe harm to the woman. this type of stupidity
or credulity, if it is just that, is vicious. one must disregard the
"innocent" motive/rationale for the.ir action~ this is not a case of
2080 NOTES 36
negligence.
- rather it concerns the sheer recklessness of the defendants regarding the
woman's consent, and the total disregard of her interests. recklessness
occurs when one "consciously disregards a substantial and unjustifiable
risk" to another person~
(1) (a) negligence is inadvertent, it does not advert to the risk.
recklessness adverts to the risk, but disregards it. (2) the element of
substantial risk. the benefits of the action (to the Morgan defendants) are
trivial compared to the costs (to the female victim) if the defendants are
wrong in their judgement about her consent.
- consequently it is better to err on the side of safety or caution. what
is their implied attitude here? is it "wilful blindness." wanting to believe
for the thrill. use any excuse to get what they want.
- a mistake of fact defence is regarded as inadequate here. one is
responsible for knowing the facts. ie. the fact of the woman's explicit
consent or refusal to consent.
- the seduction argument. this objective liability approach to rape would
eliminate the element of seduction. the seducer's rationale: when she says
yes she means yes, when she says no she means maybe or really yes.
- if this is true, it is impossible for her to say no to sex with him. his
desire for seduction overrides her right to choose. but there is no right
to seduction or to sex. there is a right to choose to refuse sex. and only
the latter is protected in law. no means no.
- to get more rape convictions. exclude information regarding complainant's
sexual history. yet no blanket exclusion can be allowed. past leniency to
the defendant. rape shield laws.
- ( 1) the assumption of risk on the part of a woman. ie. picking up a stranger
and taking him home. negligent ·in providing the opportunity.
- (2) the contributory fault on the part of a woman. ie. the element of sexual
excitement in the encounter. these aspects (1) and (2) are irrelevant in
our new rape shield law. they do not provide a mitigating defence for the
crime of sexual assault.
- Defences - Legal Insanity/Mental Disorder
- 1. four kinds of mental abnormality: (a) disease of the mind. ie.

pathology. morbidity. (b) intoxication. ie. drugs. alcohol. (c) mental
defectiveness. a serious deficiency in intelligence. affects ability to
control behaviour. (d) automatism. ie. insane and sane. dissociative state.
between consciousness and actions. ie. somnambulism, seizures, sleep
disorders.
the two origin of mental abnormalities: ( 1) impairments having an
extrapsychic (external to the mind) origin. ie. drugs, alcohol (involuntary
drunkenness) blow to the head, emotional shock, brain tumour. one can be
responsible for this condition without being criminally liable for it,
although one can also be criminally liable. (2) intrapsychic (inside the
mind) impairment. this raises the notion of mental illness/disorder. what
implications does this have for individual responsibility though? (3) well
both extrapsychic and intrapsychic origins of mental abnormality can
severely affect the individual's mental capacity and ability to form an
intention (mens rea) .
- note: before the trial. an individual is found to be unfit to stand trial.
thus he cannot exercise his right to answer and make a full defence at his
trial. this .is determined in the preliminary examination. possibly
2080 NOTES 37
STRICTLY PRIVATE USE ONLY - VERY ROUGH NOTES: 37 ;
institutionalized. ie. Review Board.

- why is mental abnormality or mental disorder important in law as a defence
to a criminal charge? the law considers it unjust to punish an individual
who is incapable of mens rea because of mental disorder. because the punished
individual has to understand the reasons for his punishment. so the
individual's mental condition (mental abnormality) at the time of the
"crime" may relieve him of culpability or criminal liability. he cannot form
the intention (mens rea) to commit the crime he is accused of.
- in court at the trial: what type of mental abnormality excuses? look at
the conditions of incapacitation. these criteria govern the insanity
(mental disorder) defence. this will be determined legally. the expert
medical opinion is part of the judicial determination. ie. See the battered
woman's defence. the proof (?) of a defence of insanity lies with the
defence. ie. G.P. Morin, C. McGregor.
- the law is concerned with those whose conduct is excusable, not with those
who are sick. so "disease of mind" or "mental disorder" is a legal concept.
it is a question of law, not of medicine.
- having an evil motive or committing a particularly heinous act does not
constitute prima facie proof of insanity despite what many people feel.
- the old "wild beast" view of insanity. an insane individual is a madman;
he is like a brute, like an animal. why? because he lacks the mind and the
reason to discriminate between good and evil. not to have this ability is
to be subhuman.
- 2. Four versions of the Insanity Defence/Mental Disorder Defence.
- (1) M'Naghten Rules. either (a) or (b) constitutes an insanity defence.

- (a) "to establish a defence on the ground of insanity [it] must be clearly
proved that, at the time if committing the act, the accused was labouring
under such a defect of reason, from disease of mind, as not to know the nature
and quality of the act he was doing, or, if he did know it, that he did not
know he was doing what was wrong." (b) M'Naghten had morbid and insane
delusions. his defence was based on the fact that he had insane delusion
at the time of his action. Daniel M'Naghten shot Edward Drummond, but he
wanted to kill the Prime Minister.
- objection: (a) this places too much emphasis on the cognitive aspect of
mental sickness. it focuses excessively on cognitive defects. consequently
it is an overly restricted description of insanity. moreover this defence
does not recognize that mental sickness is a matter of degree, shades of
grey, and not a black and white issue. what about partial psychosis? it also
focuses on particular action, not on the general incapacity. lastly does
"wrong" here mean morally wrong or legally wrong?
(b) other mental disorders that are left out of consideration.
melancholia, schizophrenia, paranoid states, senile dementia. one clearly
knows what one is doing, but without appreciating the significance of one's
conduct.
- Objection: (c) insane delusions do not exculpate the individual. despite
being partially insane he can be held responsible for his actions because
he is still capable of choosing to act in accordance with the law or not.
ie. he can appreciate that his action is legally wrong, although he can't
appreciate its moral culpability.
(2) a supplement to the M'Naghten Rules. the inability to control
behaviour. this individual is excused because of a grossly deficient
inhibitory capacity. the Irresistible Impulse Rule. he can't restrain
himself from what he knows he ought not to do. he is subject to an inability
to exercise self-control. he lacks the ability to resist his impulses. note:
2080 NOTES 38
the focus is upon his inability to resist a particular impulse, rather than
upon the over-powering urge to do the act.
- Objection: this describes an internal compulsion after the manner of an
external compulsion. aren't they dissimilar though? what are these
uncontrollable urges? this is the strange notion of not having the personal
resources to do otherwise. Dahmer (irresistible impulse) . not morally weak,
vicious?
- Objection: it is too easy to feign this illness, this irresistible impulse.
further it turns the issue over to the discretion of medical experts who
disagree with each other.
- ( 3) but another door is open to psychiatrists to contribute their medical
expertise on the issue of insanity. criminal conduct can excused based on
the Durham Rule. "It is simply that an accused is not criminally responsible
if his unlawful act was the product of mental disease or mental defect."
mental disease caused the crime. the perpetrator was a victim of the crime
too.
- Objection: in what sense is the crime a product, an ef feet, of the mental
disease? how is this really known? it is too vague. there is a problem of
causation here. no standards are provided for the fact-finder/jury. this
is more a medical than a legal judgement.
- the public tends to feel these kinds of individuals are more bad than mad.
- (4) the mental defect at the time of the crime provides an excuse.
- Objection: here there is no causal relation between the mental derangement
and the act. their contemporaneity is irrelevant.
- (5) See s .16 Canadian Criminal Code: "No person is criminally responsible
for an act committed or an omission made while suffering from a mental
disorder that rendered the person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong."
- 3. Again Reasons for the insanity defence. (1) generally it is considered

wrong to punish sick people. (Cf Texas). yet one can be sick and still be
liable. the question of degree is relevant. we ought to make the punishment
fit the crime. (2) it is wrong to punish someone for being sick, for having
a certain mental disorder. psychopaths (weak and not so bright?) and
sociopaths (strong and very clever) who experience no internal conflict over
their wrong-doing. (3) it is wrong to punish someone for doing something
which is the result of his sickness. the abnormality is a sufficient
condition of the criminal act. ( 4) it is futile to punish the insane. because
this can have no deterrent effect. there is no moral deterrent. the insane
can't appreciate the culpability and condemnation of their action by the
community. the sane can.
- Objection: but a real threat of legal punishment can deter even the insane.
also see Michigan's "guilty but insane" verdicts.
- (5) the mental abnormality of being dangerous. but this warrants being
deprived of liberty. ie. possible sexual predator law. Objection:
medicalizing a perceived "criminal" problem. danger to the medical system.
the reverse. criminalizing a medical problem so the sick individual can be
sentenced to treatment.
- 4. a deviation from normal capacities. this limits the individual's

accountability. he has diminished or partial responsibility. blame within
limits. culpability, not responsibility, is diminished. intoxication,
serious deficiency, automatism, temporary insanity.
- we need criteria for determining mental incapacities so as to judge who
is to be excused. note the required criteria are legal criteria.
- generally we do not acquit if the action or behaviour is too monstrous.
2080 NOTES 39
the desire for retribution is too strong. we are also suspicious of the
notion of temporary insanity. ie. L. Bobbit.
- 1. Psychopathic (suggestion: weak and not so bright) and Sociopathic

(suggestion: strong and very clever) Personalities. They is not legally
insane. people with impaired capacities that make it difficult for them to
avoid criminal conduct. the psychopath or sociopath. one can look at the
clinical literature. this is an empirical approach.
- many legally sane individuals are psychologically troubled. ie. emotional
burdens. and likely to commit crimes. so to be law-abiding they must exert
more effort, discipline, and restraint, than normal sane individuals. these
troubled individuals are found in the middle range of the population. not
at the extreme. note that devils and animals are not sick human beings, they
are inhuman. so they are not bad or evil.
- NOTE: some groups that are not part of this mix: the extremely neurotic,
suffering from syndromes, pms women, the hormonally challenged, the
compulsive, and various forms of automatism. But these go to make up for
a whole range of excuses for criminal behaviour. note. just because an
explanation makes a crime more intelligible, that does not mean that it
constitutes a defence for it, that it excuses it. the capacity to appreciate
wrongfulness and to conform one's conduct to law is a matter of degree. this
can lead to a judgement of diminished responsibility. now look at the
sociopathic personality.
- 2. the sociopathic personality never experiences genuine passion. does

not really hate other individuals. (JK. but anger?) unlike the
psychoneurotic, he suffers from no anxiety. many sociopathic individuals
are highly intelligent. ie. charming, persuasive, manipulative. so good
external social skills. can fool institutional staff.
- the sociopathic personality appears to have no conscience (knowing
together). only experiences irritations and inclinations. incapable of
experiencing empathy. cannot put himself into another person's emotional
position. because the sociopathic personality does not have an emotional
position of his own to occupy.
- yet the sociopathic personality is sane! he is not prof ligate or
dissipated. what he is, is pathologically egocentric and anti-social
(non-social, a void, a blank). not aware of others. an impersonal
individual. failure to care. cannot care (no empathy) . a "drifting
approach. " he is disordered. or no order? asocial, aggressive, impulsive,
who feels no guilt, who feels no bonds with others.
- 3. the vast majority of psychopathic and sociopathic individuals have been

rejected in childhood. (true?) yet not all rejected children become
psychopaths or sociopaths. so what happens in the case of the psychopath
and the sociopath? the possible causes of the psychopathic and sociopathic
personalities: (a) severe rejection. (b) mild rejection and damage to the
brain area. (c) mild rejection and harmful environmental influences.
- the sociopathic 1 s lovelessness -> the sociopathic lack of conscience.
children who fear (then psychopathic?) the loss of love develop the concept
of "must", but not the concept of "ought" (due to identification with
parents).
- the sociopathic personality: (a) intensified aggression. unusually so
though? (b) impulsivity. no moderation. no inhibitory factors. (c) pleasure
seeking. to combat immediate emotional frustration. (d) he is indifferent.
- in sum: trace the psychopathic and sociopathic personalities to early
2080 NOTES 40
Copyright 2010-2011. Professor J .. Kow.
deficiencies in affectional relations.
- 4. most crimes committed by psychopaths and sociopaths are relatively
minor. when he does act violently, he feels no guilt. but the crime does
not seem to benefit the psychopath (not sociopath though?) himself! he is
not rational individual calculating what is in his long-term self-interest.
instead the psychopathic and sociopathic personalities are ill--in
different ways? they suffer from the impaired functioning of some organic
system.
- note: the evaluation of an individual as sick or healthy (fact) contains
a normative element (moral value) .
what about mental dysfunctions that are non-cognitive? affective
emotional, or volitional disorders. but their cognition is working fine.
but to include all these non-cognitive faculties which can malfunction can
lead us to the conclusion that all immoral behaviour is sick, and therefore
excusable. this breaks down the distinction between sin wrong-doing, crime
and sickness.
- The Crossbow Murder - 1992:

- 1. 1991 - in Ottawa Colin McGregor killed Patricia Allen with a steel bolt
fired from a crossbow. pretrial poll to determine the public's judgement
of Colin McGregor. public not sympathetic to his defence of not guilty by
reason of insanity. so the judge ruled that McGregor was entitled to a trial
by judge alone. Another Case: See Teale/Homolka/ Bernado- -the victims were
N. French and L. Mahafee.
- 2. McGregor at the time of the murder was under psychiatric care. had a
mental disorder, expressed violent thoughts about his wife, but not judged
dangerous. his relationship with his wife deteriorated. developed a number
of bizarre physical complaints. treated for a delusional disorder. treated
with an anti-psychotic drug. not considered a threat.
- 3. the trial. a defence of insanity. psychiatrists square off against one
another. judge finds McGregor guilty of first-degree murder. he is mentally
ill. also not able to control his delusions. McGregor patient
confidentiality (privacy) could not be broken (warn Allen) . but see Tatiana
Tarasoff case. patient privacy ends where public peril begins. but can we
predict violent behaviour though? which side do we err on? less freedom or
less safety?
For Information: Canadian Business Law - Very General Rough Notes
1. Setting Up a Corporation:
- Federal Canadian Business Act and Regulations.
- Provincial Canadian Business Acts, Statutes and Regulations.
- Charities Legislation.
- Educational and Religious Institution.
- Private Incorporated Groups. ie. clubs etc ...
- Laws regarding Small Business. NOTE. There is MUCH MORE.
2. E-commerce Legislation.
3. Different Areas Finance--Banks, Insurance Companies,
of the Economy. etc ...
2080 NOTES 41
STRICTLY PRIVATE USE ONLY - VERY ROUGH NOTES: 41 '•
Resources--Mining, Lumber, Fisheries ...

Agriculture ... etc
Manufacturing. Production. etc ...
4. Taxation Laws.
5. Competition/Regulation Agencies.
- What is a contract? This is narrowly business please note. It is a

bare-bones presentation. A contract is a legally binding document on two+
parties. It is a binding promise to perform one's side of the contract. AN
exchange is involved of: salei lease or hire of servicesi lease or hire of
goods.
- NOTE: The Criminal Law invalidates contracts which violate the Criminal
Code.
- What composes a contract? (a) the ability to consenti (2) mutual consenti
(c) an object/purpose exists for the contracti (4) there is a serious
obligation involved--for "lawful causei" (5) there is compliance with legal
formalities.
- The growing important areas of law is Consumer Law, Privacy Law, and E-Law,
and International Law. Again there are more areas than mentioned.
- The SANCTIONS for NON-COMPLIANCE of a Contract?
The claimed aggrieved party can appeal to the realm of Tort or Private Law.
We briefly study Tort Law forthwith.
- Private/Civil Tort Law:
- this is a civil action--a private suit--between two legal individuals.

what is at issue is a private wrong in which damages are involved. one
individual v. another individual. the plaintiff sues the defendant for
damages. the individual controls his own case. proof in civil law is based
on balance of probabilities. {sometimes whose word is more believable.) the
procedure: {1) has there been a loss; {2) if there has been a loss, then
what should we do about it? should we leave the loss where it falls? {3)
if not, then how should the loss be distributed? the judgement is that the
defendant is either liable or not liable for damages. this is civil
liability. NOTE: the philosophical basis of Tort Law is utilitarian.
Divisions of Tort/Private Law: NOTE: we will expand on this important area

in class lectures and questions.
- 1. Negligence. 2 Intentional Tort. 3. Strict Liability
- Also Cf Cases in Case Study Section of the Course.

Theories of Punishment,
Determinate and Indeterminate Sentencing
2080 NOTES 42
Copyright 2010-2011. Professor J. Kqw.
- Punishment:
- it appears to be prima facie wrong to inflict pain on someone without his

consent. now a guilty individual does not normally consent to his
punishment. It is forced upon him. as a result a justification of punishment
is required. the key to the analysis is to recognize that the problem of
punishment is not a unitary issue. it can be divided into several aspects.
- The Classic Debate Between Utilitarianism and Retributivism:
- 1. Utilitarianism claims that punishment is not a good in itself.

punishment is painful, and pain is generally regarded as an evil. any
infliction of pain which is unconsented to therefore has to be justified.
now utilitarianism submits that the institution of punishment can be
justified by looking to the results of punishing individuals. only the
consequences of punishment are germane to evaluating the legitimacy of the
practice of punishment.
- utilitarianism considers past wrongs to be irrelevant in justifying the
practice of punishment. instead it judges that punishment is a necessary
evil in order to prevent even greater evils in the future. ie. like "bad"
medicine or surgery which help one get well.
- thus punishment is a means to future goods: (a) the correction of the guilty
individual; (b) securing the protection of society; (c) deterring others
from committing criminal acts. consequently the social good achieved in
punishment is a sufficient condition for legitimating it. in the end the
chief value of punishment for utilitarianism lies in its deterrent ef feet.
hence this theory is also called utilitarian-deterrence theory.
- Two objections have been made to the utilitarian-deterrence theory of
punishment.
- (1) Utilitarianism, on the one hand, seems to justify not punishing a
guilty individual, if not punishing him produces more social good overall.
ie. mobsters (killers?) who become prosecution witnesses for the state, and
then live out their lives at the public expense and under the state's
protection. (2) On the other hand, Utilitarianism seems to justify punishing
an innocent individual, if punishing him produces more social good overall.
ie. Marshall case, Morin, Nelles. additionally utilitarianism appears to
justify both strict criminal liability and vicarious criminal liability
when it comes to distributing punishment. (3) finally, it would also seem
to justify the excessive punishment of a guilty individual if this is judged
to be good for society overall. In other words it justifies a level of
punishment exceeding the level of the crime. ie. three strikes. punish one
individual excessively to send a message to society. ie. zero-tolerance.
we may say that utilitarian sees only a loose connection between the crime
and punishment.
- 2. Another approach to the utilitarian theory of punishment. in this view

it is crucial that Utilitarianism respond to the objection that it permits,
in principle, both punishing the innocent and not punishing the guilty.
- This occurs in cases in which either action produces more social good
overall. (a) Yet it seems obvious that punishing an innocent individual is
wrong notwithstanding all the social good it might do. (b) conversely
permitting a guilty individual to go unpunished seems to be prima facie
wrong.
- the utilitarian responds to these problems on a general and on a particular
level. In effect he adopts a division-of-labour between a utilitarian theory
of general justification and another (retributive) theory of particular
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Copyright 2010-2011~ Professor J. Kaw.
violating the universal (social norms) he commits an offense against

himself. thus he needs correction, he needs to be brought back to the
universal and social norms of behaviour.
- 2. For the retributivist the punishment should fit, or be proportionate
to, the crime. And so the state should punish only according to the degree
of wrong-doing. (1) On one account ·of retributivism the punishment must be
equal to the crime in mode and manner. This appears to entail retaliation
in kind. Lex talionis. the state should inflict the same pain on the guilty
individual which he caused his victims to suffer. Baldly stated, the guilty
deserve to suffer pain. (2) On another account of retributivism punishment
should be related to the offense. there should be an individuation of the
punishment within limits. in this view, a certain discretion is permitted
to the judge.
- There are a number of objections to retributivism:
- (1) The first objection to the retributivism' s theory of punishment states
that the infliction of pain on another human is an evil. And as an evil it
cannot be justified. Of course you can argue that punishment is a response
to an evil. But the objector will note that two evils do not produce a good.
or two wrongs do not make a right. In the last analysis the only action that
is justified is to do good to another individual.
- Response: Although both the crime and the punishment are each an evil,
the close fit or connection between the two of them is good. It is
appropriate. civil, social expiation.
- (2) It is also argued that retributivism stems from an inhuman desire for
vengeance and revenge. retribution or punishment is an act of
retaliation--paying back the individual who caused pain with pain--which
only serves to provoke and perpetuate a cycle of vengeance and violence.
indeed this makes society as bad as the criminals it is punishing.
Response: The retributivist counter-argues that punishment is an
institution designed to achieve justice and to bring about just deserts.
the justification of punishment is independent of any desire for vengeance.
- (3) another objection takes aim specifically at moral retributivism. this
objection claims that the state should not be in the business of distributing
punishments among its citizens according to their degree of moral fault.
why not? because the state is unable to judge the moral condition of any
individual in fore interno. ie. her conscience. Furthermore punishment also
penalizes the innocent parties associated with the guilty individual and
this is immoral.
- Response: The retributivist replies that if the state can't judge and
punish anyone, that would be a license for each individual to take the law
into her own hands. The result would be a reversion to an anarchical
state-of-nature. in this state the result is that all individuals punish
each other extra-juridically.
- concerning the other part of the objection it is true that innocent parties
associated with the guilty individual also suffer, when she is punished.
But the question is whether it is the state which is the cause of their
suffering, or whether it rather the guilty individual who causes them to
suffer? ie. someone who commits a crime has to realize that he is exposing
himself and the innocent associated with him to social penalties.
- but even if this general objection succeeded against moral retributivism,
one could still retreat to legal retributivism to justify punishment.
- consider: the correctness of retributive judgements. they cohere with our
other general moral beliefs. is it plausible that retributive judgements
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are essentially motivated by the desire for revenge? we will employ three
steps in defining retributive judgements:
- (1) turning the tables. maybe anti-retributive judgements are in turn
based upon non-virtuous emotions. while it is saintly to turn one's own
cheek, it is not saintly (but evil) to turn one's cheek when another is being
harmed. it shows a lack of sensitivity and sympathy to the suffering of
another. this is an egocentric lack of compassion, which is as bad as the
"supposed" retributive desire for revenge.
- moreover the compassion may get transferred to the criminal. pity the
criminal as a victim so that one can feel good about oneself. surely it is
human and right to feel anger at wrong-doing, at the harmful actions of
others.
- (2) we can be motivated to make retributive judgements by the virtuous
emotions of guilt and fellow feeling. imagine how you would feel if you did
what Stephen Judy or Richard Herrin did (who hammered his girlfriend to
death). you should feel "guilty to death." it would be obscene to engage
in an apparently easy self-absolution. the anti-retributivist mistakenly
sees guilt over past acts as· a useless emotion. but is it true in these
cases??
- morality has to take the past seriously. your past constitutes your
identity. you are responsible for it. you are responsible for both the good
and the bad. the experiment of imagining our own guilt in the Judy and Herrin
situations enables us to judge the connection between emotion and its
epistemic import.
- our imagined guilt discloses that we are morally culpable. it generates
the judgement that we deserve punishment. we ought to be punished. (positive
or maximal retributivism). to feel guilt is to judge that we must suffer.
this is more than a corrective theory of punishment then.
(3) punishment as a public insti.tution ideally controls the private
emotions of revenge and resentment by channelling them into more humane form
of expression. penitentiaries should be places for penance. for expatiating
the wrong-doing individuals have engaged in. Cf Quakers.
- 3 Principles of Sentencing and Punishment:

- Lest one still worry about the legitimacy of punishment one should
recognize that principles of justice apply also to punishment.
- (1) "like cases are to be treated alike." ie. the uneven application of
the death penalty in the U.S.A. (2) offenses of different gravity should
be punished differently. this individualization of punishment enjoins that
we look at the individual to be punished, and then given the limits of the
law, assign the appropriate punishment to him. (3) if the same objective
in sentencing can be achieved with a minimal sentence, then that is the
appropriate sentence to assess. See Bail Applications etc ...
- As for those who advocate that punishment's goal is the moral reformation
of the offender, they are really advocating substituting treatment for
punishment. They are suggesting that the rationale of punishment lies in
strengthening the offender's disposition and capacity to act within the law.
- one can object that moral reform can only be a part of the general system
of punishment. The system of punishment does not exist to reform the
criminal. It exists primarily to prevent crime. this is utilitarianism.
moreover the reform approach neglects to recognize all those innocent
individuals who are influenced not to commit crime by the punishment of
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Copyright 2010-2011. Pro~essor J. Kow.
others. They are not being reformed in being so influenced. but soci~
punishes with an eye to the effect that punishment has upon these"'. '
individuals.
- (1) punishment can be seen as directly including both the criminal and
the rest of society, (2) the reform position sees punishment as directly
including only the criminal. it seems punishment is not the same as reform.
It may include reforming the c'riminal, but it cannot be reduced to just this
goal.
- Note: Brief comments here.

(1) Determinate Sentencing. a precise penalty is associated with being
found guilty of the crime. No discretion is allowed to the judge in assigning
the sentence. it is determined by statute.
- (2) Indeterminate Sentencing. no precise penalty is associated with being
found guilty of a particular crime. there can possibly be a suspended
sentence. or in more serious cases there are upper and lower sentencing
limits (years of incarceration). the judge is permitted discretion within
these limits in assigning the punishment to the guilty individual.
2080 NOTES 46

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Copyright 2010-2011. Professor J. Kow.

Philosophy of Law 16 May, 2011.

- philosophy is the activity of thinking: continual process of questioning

- Now for the Philosophy of Law Proper:

- 1. the aims of normative legal theory: (1) the philosophical justification

- A Case Study Problem:

- the inadequacies of natural law and positive law.

Lecture 2 17 May, 2011.

- Natural Law Theory - St. Thomas Aauinas:

- (1) Eternal Law - eternal law governs the universe. it is disclosed in

- (1) Human Law and Natural Law - a law is determined to be just or to be

Lecture 3 18 May, 2011.

- common law originates in the collective wisdom of the community. it is

- Objections: some difficulties with common law:

law-governed state. See Austin and Hart.

- 2. Austin - Positive Law:

- Austin does remark on the greater importance of habitual obedience over

- 3. Holmes: Prediction Theory:

don't we need to establish an independent moral standpoint in order to be

- 4. Frank: Legal Realism:

- 1. Frank proposes a markedly practical approach to law. for him law is

- 2. there is great uncertainty in trial court's "fact-finding" process.

- Hart - Analytical Jurisprudence:

- Hart is interested in the "Rule of Law." a self-regulating system of rules

- The Idea of Obligation:

- for Hart law involves a "non-optional" sense of rational obligation. Hart

Copyright 2010~2011. Professor J. K~w.

- 2. Dworkin - Rules/Laws and Principles - Judicial Decision-making as

Copyright 2010~2011. Professor J. Kow.

- Background: Dworkin criticizes the Hart's and Legal Positivism's notion

- Recall: distinguish between: (1) Austin: power is the source of authority;

- what are the sources of a rule's authority or normativeness for Hart?

- 3. Dworkin's Rules Principles, and Policies:

- in hard cases for Dworkin judges have to appeal to non-rules in order to

- Riggs vs. Palmer: 1889. Riggs' sisters as daughters of their slain

- 1. (a) Earl, J. the statute is on the side of Elmer. he inherits.

- what are the differences between rules and principles?

- in Riggs a principle is cited as the justification for creating a new rule.

5. Dworkin on Hart's Rule of Recognition.

- Dworkin: now judicial decision-making is an interpretive activity. it is

- 3. the chain (novel) of law:

- common law adjudication is like the chain novel interpretation. judges

of continuity with what has preceded.

- Interpretation in Practice: an interpretation, an interpretative judicial

Lecture 6 24 May, 2011.

- (1) are there limits to what can be posited or legislated as law? as to

- 2. Some Problems with Natural Law Theory:

of freedom of expression, the right to privacy, pornography, literature

- 3. (1) Cultural Liberal Points: it better to be tolerant and to recognize

- Hart's liberal approach makes the minimum standards in society a matter

- 2. what is Austin's Utilitarianism?

- 4. G. Radbruch on the Moral Implications of Positivism:

- Fuller's Modern Natural Law {more Procedural than Aquinas• s Substantive

- classical natural law theory argues for a maximal morality of aspiration.

- 1-2. The Definition of Law and Morality:

- 3. The Moral Foundations of the Legal Order:

- 4. The Morality of the Law Itself:

- hence in regards to Nazi Germany, despite the mutilation of its social

- but what is the internal morality of law? for Fuller it is a morality of

- Fuller's theory is a procedural theory of natural law. it is not

- note that only a total failure in all of these aspects results in a

- Restoring Respect for the Laws ... :

- Hart objects on technical grounds to Fuller's interpretation. for him "law