Issues Arising from “Necessity”
Analysis of the concept of necessity.
Not interested in the law of necessity
But, interested in the concept of necessity fabricated by
legal decision.
Keep in mind: many kinds of necessity in the world, eg.
Metaphysically necessary.
No specific concept of necessity articulated in any given law.
Concept of necessity has developed over time through
judicial decisions.
Unhappiness
Discussion of necessity explained the concept of necessity and (part of) its development.
The discussion did not provide a full justification of necessity.
Not clear why “positive law” cannot tolerate necessity
conceived as something more than an excuse.
Not clear why judicial decision qualifies as legally
binding if there is no legislation about “necessity”
Philosophy of Law
Are not laws just laws because a government imposes them on
people?
So, impositions of law are just arbitrary.
Other than the fact I might get into trouble, why
should I even be bothered about laws?
Key questions: (1) What
justifies
law?; (2) What are laws (what is
it exactly that are we justifying)?
What are laws?
Obviously: statutes/laws made by law-makers (legislators)
through constitutionally enshrined processes or by-laws (laws
about laws).
Not just statutes made by law-makers.
Judges “make” law when they decide cases.
What justifies law?
Some plausible answers:
Force, Fiat or Authority
Tradition or History
What is Common Law?
A system of unwritten law governing the rights and duties of persons that was developed in England in courts of superior jurisdiction having general application and declared in written opinions by
judges and based either on the general customs or on reason and fixed principles of justice and adapted (even in the absence of past cases) to new situations, even if that necessitates changing or
Common Law
1) Law is found in the distillation and continual restatement of
legal doctrine through the decision of the courts.
2) Legal doctrine (legal ideas) is brought to new circumstances
through the succession of cases brought before the courts.
3) Emphasizes the central role of the judge in the gradual
Why do we even need common
law?
Answer from Hugo Grotius via Blackstone.
The laws and statutes made by legislators are universal rules. By virtue of being universal the specific application of the rules to
particular cases is unclear.
Common Law are the precepts and principles by which universal rules are applied to particular cases.
Three Questions
Why is a tradition justified?
If judges are always interpreting and revising the legal tradition in light of particular cases, then is not the so-called “common law
tradition” de facto acquiescence to the authority of judges. What is the relationship between the judiciary and the legislator?
Problems
Not clear that a tradition could be anything more than an explanation.
Unclear how a tradition can be sufficiently fixed to be classed as a tradition, yet sufficiently changeable so as to be malleable in judicial decision
Even if we accept that a tradition is malleable, then it the process of legal
change is unclear. The most common law tradition says is: law changes as legal customs change.
Unclear why judicial authority should be taken as authoritative. Not clear if judicial decision or legislative enactment has priority.
This issue resolved pragmatically in most countries. Legislature or executive trumps judiciary.
Need but justified?
By definition, common law is a tradition of legal decision making. We may need that history of legal decision making.
NOT A PROBLEM: traditions are arbitrary
Conventions do not imply arbitrary.
BEGINNING OF A PROBLEM: Conventions/traditions need to have a history.
How deep a history? “time immemorial”
SERIOUS PROBLEM
Are histories/traditions justified by virtue of being histories/traditions? NO.
From Common Law to Historical
Jurisprudence
The judge is a spokes-person for the community; a representative of an evolving system of legal analysis and decision.
Plausible and perhaps attractive but leaves open some questions:
What is community?
What is the the status of legislation v. decision?
What is precisely the basis for judicial authority?
Leviathan
(1651)
Thomas Hobbes (1588-1679)
Job 40-41: “Can you pull in the leviathan with a
fishhook or tie down his tongue with a rope? Can
you put a cord through his nose or pierce his jaw
with a hook? … Can you fill his hide with
Equality
Humans may be different but they are roughly equal in their
abilities:
(a) Body
•
No person is that much stronger than everyone
else that the physical strength of others poses no
threat
(b) Mind
•
No person is that much smarter than everyone
else that intelligence of others poses no threat.
Why We Fight
(thanks, Eugene Jarecki)
1) Competition for resources
2) Diffidence (the quality of being distrustful)
3) Desire for Glory
WAR!
“during the time men live without common power
to keep them all in awe, they are in that
condition which is called war; and such a war as
is of every man against every man.”
There is a war of “each against all.”
State of Nature
In the state of nature:
(a) No commerce, industry or culture
(b) Constant individual fear.
The state of nature.
•
Philosophical conjecture about pre-legal, pre-social
human life.
•
Not a biological fact
Law and State of Nature
“The desires and other passions of man are in themselves no
sin. No more are the actions that proceed from those
passions till they know a law that forbids them, which till laws
be made they cannot know, nor can any law be made till they
have agreed upon the person that shall make it.”
“To this war of every man against every man, this also is
consequent, that nothing can be unjust. The notions of right
and wrong, justice and injustice have there no place. Where
there is no common power, there is no law; where no law no,
injustice.”
Rights of Nature
“The RIGHT OF NATURE … is the liberty each man hath to use
his own power as he will himself, for the preservation of his
own nature; that is to say, of his own life; and consequently,
of doing any thing, which in his own judgement, and reason,
he shall.”
Entails “the right to all things”:
“There is nothing he can make use of, that may not be a help
unto him, in preserving his life against his enemies; it
followeth, that in such a condition [the state of nature] every
man has a right to everything: even to another’s body.”
Social Covenant or Contract
To escape the state of nature, people agree among
themselves to transfer their rights to a sovereign
with absolute power to make and enforce laws.
• People cannot rule themselves so they agree to have
someone rule over them.
• The rights of nature and things are surrendered to a
sovereign
• The sovereign then rules absolutely.
• The sovereign preserves the safety of persons by
enforcing covenants, i.e., the sovereign makes and
enforces laws.
“The final cause, end, or design of men (who naturally love
liberty, and dominion over others) in the introduction of
that restraint upon themselves (in which we see them
live in commonwealths) is the foresight of their own
preservation, and of a more contented life thereby; that
is to say, of getting themselves out from that miserable
condition of war, which is necessarily consequent (as
hath been shown), to, the natural passions of men, when
there is no visible power to keep them in awe, and tie
them by fear of punishment to the performance of their
covenants.”
“The only way to erect such a common power as may be
able to defend them from the invasion of foreigners, and
the injuries of one another … is, to confer all their power
and strength upon one man, or upon on assembly of
men, that may reduce all their wills, by plurality of voices,
unto one will … and therein to submit their wills, every
one to his will, and their judgements, to his judgement …
as if every man should say to every man, I authorise and
give up my right of governing myself to this man, or to
this assembly of men, on this condition, that thou give up
thy right to him, and authorize all his actions in like
Hobbes’ Law
1) Law emanates from the sovereign. • Not history. Not divinity.
2) The sovereign is instituted by common consent. There is a social contract or social covenant.
• Consent is tacit not actual.
• Consent is in self-interest since the state of nature is an impoverished state of preparedness for war.
3) The social contract entails giving up one of two natural rights, the right to all things.
• All things now belong to the sovereign.
• The sovereign retains a monopoly on force.
4) The sovereign mandates law. Obedience to sovereign law is mandatory.
Conundrums
1. If right to nature is retained, then how or why can the
Hobbesian sovereign execute or command military service?
2. If law emanates from the sovereign, then what is the status of
international law? Surely the existence of international law
refutes the Hobbesian position?
3. What if the sovereign makes silly or immoral laws?
4. What is the status of judge-made law, common law and legal
precept in Hobbes’ account?
Distinctions
Hobbes
Hobbesian
Austin’s Three Key Claims
“Laws and commands are said to proceed from superiors to
inferiors”
“the term superiority signifies might: the power of affecting others
with evil or pain, and of forcing us to comply with his will, is
unbounded and resistless.”
What are laws?
Laws are a command from a superior to an
inferior backed up by force.
Laws are imperatives enforced by threat of
punishment.
Laws are the demands of sovereign power
upon the collective population enforced
by punishments of sovereign power.
Nota Bene: Obedience
1) But, clearly, law does not guarantee obedience.
• A command does not guarantee the command will be followed. • A duty or obligation does not mean that the duty or obligation will
be fulfilled.
2) Sovereign power guarantees obedience.
• Once it is established as “a matter of fact” that a
law has been broken, then the sovereign or the
sovereign’s proxy, mets out a punishment (usually
within parameters themselves defined in law).
Law and Morals
A law
DEFN
is a command from a superior to an inferior that
entails a duty or obligation.
• Morals are not
prior
to law but are
subordinate
to law.
– “Prior” is fine but here we want to distinguish
historical priority from conceptual priority.
– To avoid confusion we can say “subordinate”
Austin (I)
1. “Commands” are (i) an expressed wish that something be
done, with (ii) a willingness and ability to impose “an evil” if
that wish is not complied with.
2. Rules are general commands (applying generally to a group),
as contrasted with specific or individual commands. Rules
have general not particular scope.
3. Positive law consists of those commands laid down by a
sovereign (or its appointed agents). Not: God's general
commands, and the general commands of an employer.
Austin (II)
4. The “sovereign”
receives habitual obedience from most of
the population. The sovereign does not habitually obey
any other (earthly) person or institution.
5. Positive law is contrasted with: “laws by a close
analogy” (which includes positive morality, laws of
honor, international law, customary law, and
constitutional law) and “laws by remote analogy” (e.g.,
the laws of physics).
Neo-Hobbesian (I)
1. In general, neo-Hobbesians extend the basic
Hobbesian argument into domains other that
philosophy of law and political philosophy.
• e.g., ecology, the formation of moral agreement,
globalization and standardization
2. Common form: M
arkets
provide the basis for
governments and morals.
• Markets are the source of the tax revenues that allow
governments to act.
• Markets are the source of incomes that allow
Neo-Hobbesian (II)
3. Market’s need government to enforce contracts;
individuals need government to keep peace; and
governments cannot keep peace without tax
revenue.
• Markets provide the material pre-conditions for
government and individual goods and morals.
• Many of the functions of government can be achieved
by self-regulating markets.
4. The
polis
is thus subordinated to the
oikos
,
• Markets solve the problem of Hobbes’ all-too-powerful
sovereign.
• For better or for worse, political sovereignty morphs
into consumer sovereignty.
Issues Arising from “Necessity”
• Analysis of the concept of necessity.
– Not interested in the law of necessity
– But, interested in the concept of necessity fabricated
by legal decision.
– Keep in mind: many kinds of necessity in the world,
eg. Metaphysically necessary.
• No specific concept of necessity articulated in
any given law.
– Concept of necessity has developed over time
through judicial decisions.
• Violation of law might be excused but never
justified.
Unhappiness
• Discussion of necessity
explained
the concept of
necessity and (part of) its development.
• The discussion did not provide a full justification
of necessity.
– Not clear why “positive law” cannot tolerate necessity
conceived as something more than an excuse.
– Not clear why judicial decision qualifies as legally
binding if there is no legislation about “necessity”
Philosophy of Law
• Are not laws just laws because a government imposes them
on people?
– So, impositions of law are just arbitrary.
– Other than the fact I might get into trouble,
why should I even be bothered about laws?
• Key questions: (1) What
justifies
law?; (2) What are laws
(what is it exactly that are we justifying)?
What are laws?
• Obviously: statutes/laws made by law-makers (legislators)
through constitutionally enshrined processes or by-laws (laws
about laws).
• Not just statutes made by law-makers.
– Judges “make” law when they decide cases.
What justifies law?
•
Some plausible answers:
(a) Force, Fiat or Authority
(b) Tradition or History
What is Common Law?
• A system of unwritten law governing the rights
and duties of persons that was developed in
England in courts of superior jurisdiction having
general application and declared in written
opinions by judges and based either on the
general customs or on reason and fixed
principles of justice and adapted (even in the
absence of past cases) to new situations, even if
that necessitates changing or modification of
Common Law
1) Law is found in the distillation and continual restatement of
legal doctrine through the decision of the courts.
2) Legal doctrine (legal ideas) is brought to new circumstances
through the succession of cases brought before the courts.
3) Emphasizes the central role of the judge in the gradual
Why do we even need common
law?
Answer from Hugo Grotius via Blackstone.
• The laws and statutes made by legislators are
universal rules
.
• By virtue of being universal the specific
application of the rules to
particular cases
is
unclear.
• Common Law are the precepts and principles by
which universal rules are applied to particular
Three Questions
1) Why is a tradition justified?
2) If judges are always interpreting and revising
the legal tradition in light of particular cases,
then is not the so-called “common law
tradition”
de facto
acquiescence to the
authority of judges.
3) What is the relationship between the judiciary
and the legislator? Should legislation trump
judicial decision or vice versa?
Problems
1)
Not clear that a tradition could be anything more than
an explanation.
2)
Unclear how a tradition can be sufficiently fixed to be
classed as a tradition, yet sufficiently changeable so as
to be malleable in judicial decision
3)
Even if we accept that a tradition is malleable, then it
the process of legal change is unclear. The most
common law tradition says is: law changes as legal
customs change.
4)
Unclear why judicial authority should be taken as
authoritative.
5)
Not clear if judicial decision or legislative enactment
has priority.
• This issue resolved pragmatically in most countries. Legislature or executive trumps judiciary.
Need but justified?
• By definition, common law is a tradition of legal decision making. We may need that history of legal decision making.
• NOT A PROBLEM: traditions are arbitrary – Conventions do not imply arbitrary.
• BEGINNING OF A PROBLEM: Conventions/traditions need to have a history.
– How deep a history? – “time immemorial” • SERIOUS PROBLEM
– Are histories/traditions justified by virtue of being histories/traditions? – NO.
From Common Law to Historical
Jurisprudence
•
The judge
is a spokes-person for the
community; a representative of an evolving
system of legal analysis and decision.
• Plausible and perhaps attractive but leaves open
some questions:
– What is community?
– What is the the status of legislation v. decision?
– What is precisely the basis for judicial authority?
Austin’s Three Key Claims
“Laws and commands are said to proceed from superiors to
inferiors”
“the term superiority signifies might: the power of affecting others
with evil or pain, and of forcing us to comply with his will, is
unbounded and resistless.”
Law and Morals
A law
DEFN
is a command from a superior to an inferior that
entails a duty or obligation.
• Morals are not
prior
to law but are
subordinate
to law.
– “Prior” is fine but here we want to distinguish
historical priority from conceptual priority.
– To avoid confusion we can say “subordinate”
Obedience
1) But, clearly, law does not guarantee obedience.
• A command does not guarantee the command will be followed. • A duty or obligation does not mean that the duty or obligation will
be fulfilled.
2) Sovereign power guarantees obedience.
• Once it is established as “a matter of fact” that a
law has been broken, then the sovereign or the
sovereign’s proxy, mets out a punishment (usually
within parameters themselves defined in law).
Wedging in on the Hobbesian (1)
The Hobbesian position is
coherent
but not
unproblematic.
• According to the Hobbesian, laws stem from
sovereign power. There is no law outside of
sovereign power.
• Notes:
(1) Hobbesians will claim, for example, that
international law does not exist.
(2) The Hobbesian will claim that without
sovereign power there is
necessarily
a
fear of the potential for sudden violent
death.
Wedging in on the Hobbesian (2)
But:
(a)
Datum 1
: There seem to be international laws. The
force of such laws cannot stem from the sovereign since
there is no “sovereign of all nations.”
• For example, the Geneva Convention, the Warsaw
Convention and SALT I and II.
(b)
Datum 2
: There are
de facto
rules that are not
de jure
rules.
• Internet RFCs, USB 3.0 protocols, Ultimate, game
playing.
Wedging in on the Hobbesian (3)
De facto
rules have a force that comes not from
sovereign power but self-interest.
• Plausible
minimal
moral claim: ethical egoism
(Enlightened self-interest) is a moral
framework that can lead to rules having
widespread properties without coercive force.
• There are some rules that have force of law
(they are obeyed) without being fully-fledged
laws (by the Hobbesian definition).
From Legal Positivism to
Legal Realism
Remedy
• For the Hobbesian, law is about
recourse to sovereign power for
remedy
.
• What likelihood is there that the law will
provide remedy?
Legal Positivism
Laws are commands that tell you
positively
what to do or
not to do.
Upshot of positivism
: no
necessary
connection between
law and morals.
1. Things that law the prohibits are not necessarily
immoral, and things that are immoral are not
necessarily illegal.
2. So, the distinguishing feature of legal positivism is
the thesis that law depends on
social facts not
Two Kinds of Legal Positivists
1) Legal postivists (proper) / Legal positivism (proper)
•
Laws (statutes and cases) are (or can be)
reasonably explicit and that the decisions of judges,
as well as the actions of individuals, can be
constrained by exactly what the laws state or
assert..
2) Legal realists / Legal realism
•
Laws (statues and cases) are
insufficient
to
determine the decision of a judge.
Two Interpretations of Legal
Realism
(a) Brute-force Interpretation
Brute Force
1. The practical claim and (apparently) sensible core of legal
realism is that laws are human artifacts and so are subject to
human frailties and imperfections.
2. Neither the laws themselves, or the judges who decide upon
laws (and in the process make new law) are perfect, and so
the outcome of cases is not explicitly determined by statute
and cases.
3. The creation of laws and legal decisions are made for
contextual reasons, not for over-riding principles or reasons.
(Entails a commitment to sociological and anthropological
approaches to philosophy of law, since legal decisions and
reasoning are an outcome of local matters of fact.)
Extreme Brute-Force Reading
Jerome Frank (1889-1957)
•
US Court of Appeals for Second Circuit
Reported
to have stated:
“what a judge ate for breakfast determines
the decision.”
Anti-Metaphysics (I)
1. Legal concepts like “moral duty” and “moral rights” are not concepts that correspond with things in the world.
–
Concepts must be explained in terms of concepts
that correspond to circumstances in the actual,
experienced world.
2. Legal concepts like rights or duties are never experienced directly.
–
If we say something like “Jim is convicted because
he didn't perform his legal duty,” we might infer that
there are “legal duties.”
–
Legal realists deny this inference.
3. Legal concepts are inferred as an explanation of experience in courts, in encounters with government and so forth, but the legal realist maintains that the inferences is illicit. There is just the
Anti-Metaphysics (II)
1. LEGAL
–
Legal concepts, past cases and statutes are
ultimately (and merely) have only predictive force
under the expectation that future experience will
conform to past experience.
2. REALISM
–
No existence of legal concepts independent of the
experience of those concepts. Legal concepts have
no intellectual, moral, spiritual or conceptual
existence apart from the
experienced
uses of those
concepts.
The Bad Man
“You can see very plainly that a bad man has as much reason as
a good one for wishing to avoid an encounter with the public
force, and therefore you can see the practical importance of
the distinction between morality and law. A man who cares
nothing for an ethical rule which is believed and practised by
his neighbors is likely nevertheless to care a good deal to
avoid being made to pay money, and will want to keep out of
jail if he can. ... If you want to know the law and nothing else,
you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to
predict, not as a good one, who finds his reasons for conduct,
whether inside the law or outside of it, in the vaguer sanctions
of conscience.”
Law and Morals
“I take it for granted that no hearer of mine will
misinterpret what I have to say as the language of
cynicism. The law is the witness and external deposit of
our moral life. Its history is the history of the moral
development of the race. The practice of it, in spite of
popular jests, tends to make good citizens and good
men. When I emphasize the difference between law and
morals I do so with reference to a single end, that of
Holmes: Buck v. Bell
“We have seen more than once that the public welfare
may call upon the best citizens for their lives. It would
be strange if it could not call upon those who already
sap the strength of the State for these lesser sacrifices,
often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute
degenerate offspring for crime, or to let them starve for
their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad
enough to cover cutting the Fallopian tubes.”
US Constitution: 14
th
Amendment
Section 1.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Question:
Is the judges’ decision
justified?
Two interpretations of question:
(1) Substantive: What justification is there for the judges' (particular) decisions?
–
What justifies the decision of an authority?
–
Are the reasons offered by the judge adequate?
–
Are the reasons substantial?
(2) Legitimacy: What justifies the decision of a judge (in general)?
–
What justifies the authority?
–
What makes the judge an appropriate authority?
–
What gives the judges' decision binding force?
Legitimacy and Substance
Thought experiment:
–
Imagine a King that appoints judges but
demands that judges do not accept (or give
less credence to) the testimony of women.
–
We can further imagine a case in which
crucial testimony of a woman is ignored
because of this demand.
NOTE: In this case, the
legitimacy
of the judge stems from the
King, yet the King places a constraint on a judges'
Possible Answer 1
1. We recognize that the domain of permissible reasons is
being defined by an authority beyond the judge.
2. Given this, the judge might then be considered justified this
way: the substantive decision is in accord with the dictates of
the legitimating power.
If
we accept this,
then
we acknowledge that what qualifies as a
justified judicial decision is relative to a context of justification,
in this case, the context as defined by the King.
– i.e., the context of justification determines what is justified or unjustified.
– Substantive justification stems from legitimacy, but there is a distinct issue of substantive justification.
Possible Answer 2
1. We might explain, and thereby understand, the judges'
decisions in light of the fact that the judge is constrained by
the appointing authority.
–
This is not justified, however, since justifications and
explanations are altogether different.
2. We do not wish to say that the judges' decision was
ultimately justified
if it ignored the relevant testimony of a
woman because of the King's edict or demand.
3. At the same time, we could say that the judges' decision was
locally justified
because of the King's edict.
Possible Answer 3
1. (Repeating answer 2) We might might explain, and thereby
understand, the judges' decisions in light of the fact that the judge is constrained by the appointing authority.
2. (Repeating answer 2) This is not justified, however, since justifications and explanations are altogether different.
3. We do not wish to say that the judges' decision was justified if it ignored the relevant testimony of a woman because of the King's edict or demand.
4. Yet, we recognize the judge is acting in accord with the dictates of higher authority but this confers no justification.
•
There is a difference between justification and
acting in accord with the legitimating power.
Key Point
Pure legal positivism (Hobbesianism) accounts for the legitimacy
of legal decision but does not thereby necessarily also give
an account of the substantive basis for legal decision.
(a) The pure Hobbesian
must
recognize that the issue of
substantive justification is different than the question of
legitimacy (justification of authority).
(b) The pure Hobbesian simply maintains that questions of
substance are ultimately referred to questions of legitimacy.
(c) But, now the Hobbesian must give a non-question begging
The Model of Positive Law
Law
def= A command from a superior to an inferior that confers a
duty or obligation.
Law
def= Orders backed up by threats
Principle: Law is prior to morals.
Problems
Some commands meet definition of law but are clearly not laws. Some laws don’t seem to be commands.
Thus, definition is in adequate.
Morality seems to be involved in judicial decision.
Grotius: judicial decision is required to apply general legal principles to specific cases.
A clear separation of law and morals leads to problems.
Motivation to Rethink Positivism
Why should we rethink classical legal positivism? Account of “command” motivates rethinking. Why?
In the terms of analytic philosophy, the
intension
(concept) or definition is not adequate to the
extension
of the concept (the things covered by the
concept).
Doubts about separation of law and morals seems a good place to start.
Obliges and Obligation
“There is a difference, yet to be explained, between the assertion that someone
was obliged to do something and the assertion that he had an obligation to do it.” (80)
(i) Obliged is psychological (subjective)
Whether someone was obliged to act concerns the beliefs and motives for the act.
“In such cases the prospect of what would happen to the agent if he disobeyed has rendered something he would otherwise have preferred to have done … less eligible.” (80)
(ii) Obligation is objective
“the statement that a person had an obligation … remains true even if he believed (reasonably or unreasonably) that he would never be found out and had nothing to fear from disobedience.”
Prediction (I)
“Some theorists, Austin among them, seeing perhaps the general irrelevance of the person's beliefs, fears and motives to the question of whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the chance or likelihood that the person having the obligation will suffer a punishment or 'evil' at the hands of others in the event of disobedience. This, in effect, treats statements of obligation not as psychological statement but as predictions or assessments of
Prediction (II)
The main problem for legal positivism is this: the account of law as a prediction does not provide a justification for punishment or sanction.
“the predictive interpretation obscures the fact that, where rules exist,
deviations from them are not merely grounds for a prediction that a hostile reaction will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying sanctions.” (82)
Prediction and Description
Consider these statements [uttered before Sunday]:
“I predict that it will rain on Sunday”
“It will rain on Sunday.”
A predictive claim is simply a descriptive statement about a future state of affairs. It will be a true or false description, in this case, depending on whether it does in fact rain on Sunday.
For any statement that has a tense could be simply recast in the form: x,y,z,t: P where P is the predicative content of the statement.
This highlights Hart's point. Predictions are descriptions of future facts or states of affairs
Legal Realism Again
The predictive theory of law adopted by legal realists
admits that
laws make adequate or reliable predictions
about judicial
conduct.
Recall, this is why legal realists claim that
attorney's and (other) bad men pay attention
to the law.
But, legal realists cannot answer this question:
why
do laws
make reliable predictions about future practices?
The Issue
According to Hart, the main problem with the predictive theory of legal realism is that it ignores the social background presupposed by the predictive theory.
For Hart, laws are prescriptions not descriptions or predictions. The violation of a prescription that justifies a punishment or sanction (in large part).
“Rules are conceived and spoke of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. Such rules make be wholly customary in origin: there may be no centrally organized system of punishments for breach of the
rules; the social pressure may take only the form of a general
diffuesed hostile or critical reaction which may stop short of physical sanctions.” [84]
External vs. Internal (I)
(a) External.
Holmes' “bad man”
The laws are fetters or impediments to action that must
be obeyed only because of the risk of punishment.
“those who … reject the rules and attend to them only
from the external point of view as a sign of possible
punishment.” [88]
The externalist is
obliged
by every law for every law is
treated sceptically as an impediment only obeyed to
avoid sanction.
External vs. Internal (II)
(b)
Internal
Presumably, Holmes' “good man” of conscience
and moral concern.
“those who … accept and voluntarily cooperate
in maintaining the rule, and so see their own
and other persons' behaviour in terms of the
rules.” [88]
The internalist takes the law on board and
recognizes the reasons for the rule.
Prediction (I)
“Some theorists, Austin among them, seeing perhaps the general
irrelevance of the person's beliefs, fears and motives to the question of whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the
chance or likelihood that the person having the obligation will suffer a punishment or 'evil' at the hands of others in the event of
disobedience. This, in effect, treats statements of obligation not as psychological statement but as predictions or assessments of
Prediction (II)
Consider these statements:
[uttered before Sunday]: “I predict that it will rain on Sunday” “It will rain on Sunday.”
A predictive claim is simply a descriptive statement about a future state of affairs. It will be a true or false description, in this case, depending on whether it does in fact rain on Sunday.
For any statement that has a tense could be simply recast in the form: x,y,z,t: P where P is the predicative content of the statement.
Prediction and Legal Realism
The predictive theory of law adopted by legal realists admits that laws make adequate or reliable predictions about judicial conduct.
Recall, this is why legal realists claim that attorney's and (other) bad men pay attention to the law.
But, legal realists cannot answer this question: why do laws make reliable predictions about future practices?
Prediction vs. Sanction
For Hart, the main problem with the predictive theory of legal realism is that it ignores the social background presupposed by the predictive theory.
Laws are prescriptions not descriptions or predictions. The violation of a prescription that justifies a punishment or sanction (in large part). Hart claims that laws are social sanction or rules in “social situations”
Rules as Obligations
“Rules are conceived and spoke of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. Such rules make be wholly customary in origin: there may be no centrally organized system of punishments for breach of the
rules; the social pressure may take only the form of a general
diffuesed hostile or critical reaction which may stop short of physical sanctions.” [84]
External vs. Internal (I)
(a) External.
Holmes' “bad man”
The laws are fetters or impediments to action that
must be obeyed only because of the risk of
punishment.
“those who … reject the rules and attend to them
only from the external point of view as a sign of
possible punishment.” [88]
The externalist is
obliged
by every law for every law
is treated sceptically as an impediment only
External vs. Internal (I)
(b) Internal
Presumably, Holmes' “good man” of conscience and moral concern. “those who … accept and voluntarily cooperate in maintaining the rule,
and so see their own and other persons' behaviour in terms of the rules.” [88]
The internalist takes the law on board and recognizes the reasons for law.
Recalcitrant Legal Realist?
What does Hart have to say to the legal realist who simply replies that the internalist is thinking in an ill-advised way? Not much. Hart concludes the section with:
“One of the difficulties facing any legal theory anxious to do justice to the
complexity of the facts is to remember the presence of both these points of view and not to define one of them out of existence.” Perhaps all our
criticism of the predictive theory of obligation may be best summarized as the accusation that this what it does to the internal aspect of obligation.” [88]
Ought v. Obligation
For Hart, there is a distinction between an “ought” and an
“obligation.” Oughts are more trivial.
Grammatical and compositional rules are
oughts
. They are
things that should be done but carry no obligation. e.g., “Don't
end sentences with prepositions.”
Likewise, rules of etiquette are oughts. e.g., “Hold open doors for
women.”
Social Stability
A society can only be successful (stable?) if the majority of individuals “internalize” the rules and laws of society.
Some people might regard laws “empirically” and “predictively” – as things external to themselves – but they are the flies in the ointment.
Such externalists make laws mere predictions about possible future outcomes, rather than concrete realities.
The traffic light example is good and germane here. Is a traffic light a mere sign that people may stop and start, or is it a substantial indication of an underlying rule?
Primary vs. Secondary (I)
Primary rules (rules of obligation) that create obligations by saying what people must or must not do.
Minimally: “the free use of violence, theft, and deception”
Even “primitive societies” must hold on to these rules. i.e., there are minimum conditions for the recognition of what constitutes a society in the first place. [Erroneous]
Problems with Primary
Only
Uncertain – if and when there is disagreement about the assertions of primary rules, or about whether an assertion is a rule at all, there is no way of settling this disagreement since there is just the rule and nothing else
Static – the rules will be largely unchanging since there is no way of deliberately altering the rules.
Rules will only change by adaptation and evolution. This
controversially suggests that adaptation and evolution are not deliberate and therefore not rational.
Primary vs. Secondary (I)
Secondary rules: rules about primary rules.
Secondary rules are about primary rules and that confer power related to those rules.
Note that what John Searle calls “aboutness” is key here. For Searle and others, “aboutness” is essential for autonomy in the face of a determinate material order.
There are three kinds of secondary rule and each kind of secondary rule deals with one of the problems faced by primary rules.
Three Kinds of Secondary Rules (I)
(I) Rules of Recognition
Reduce uncertainty by specifying the criteria for
determining whether a given rule is a primary rule.
Hart: “[recognition rules] specify some feature or
features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a
rule of the group to be supported by the social
pressure it exerts.”
Hart: a rule of recognition is “whatever a legal system
uses as its final authority for determining whether
something is a law.”
Three Kinds of Secondary Rules (II)
(II)
Rules of Change
Rules for changing extant laws, and thus allowing laws to
change rather than be static.
Three Kinds of Secondary Rules (III)
(III)
Rules of Adjudication
Hart: “confer competence upon judicial officials
to judge and enforce the law.”
Holmes: Buck v. Bell
“We have seen more than once that the public welfare
may call upon the best citizens for their lives. It would be
strange if it could not call upon those who already sap the
strength of the State for these lesser sacrifices, often not
felt to be such by those concerned, in order to prevent our
being swamped with incompetence. It is better for all the
world, if instead of wating to execute degenerate offspring
for crime, or to let them starve for their imbecility, society
can prevent those who are manifestly unfit from
continuing their kind. The principle that sustains
compulsory vaccination is broad enough to cover cutting
the Fallopian tubes.”
US Constitution: 14
th
Amendment
Section 1.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
Hart’s Position
Legal positivist
Law(def)=command that confers an obligation
The law BOTH obliges AND obligates
No view of law is credible that obscures either feature.
Morality apart from law, but morality can indirectly influence law by way of secondary rules.
The interpretation of specific laws changes over time for analytic reasons related to specific social and historical relations.
“I have [says Fuller trying to use Hart’s voice] throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised, therefore, as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality. They derive their efficacy from a general acceptance, which in turn rests ultimately on a perception that they are right and necessary. They can hardly be said to be law in the sense of an
authoritative pronouncement, since their function is to state when a
pronouncement is authoritative. On the other hand, in the daily functioning of the legal system they are often treated and applied much as ordinary rules of law are. Here, then we must confess there is something that can be called a ‘merger’ or law and morality, and to which the term “intersection” is hardly appropriate.” [76]
Fuller Contra Hart 2
“When Austin and Gray distinguish law from morality, the word “morality” stands indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law. The inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices – all of these are grouped together under the heading of “morality” and are
excluded from the domain of law … When he [Hart] speaks of morality he seems generally to have in mind all sorts of extralegal notions about “what ought to be,” regardless of their sources, pretentions, or intrinsic worth.” [72]
Fuller: Hart Criticism 1
Hart’s theory of legal interpretation is inadequate, because it rests on an implausible view of language meaning.
We do not interpret specific terms of law, rather we
interpret the law on a holistic basis. Not just terms but
the integration of the terms within a system.
Interpretation is purposeful not analytic. Interpretation considers domains of law not specifics.
When I interpret a law, I ask “What is this law for?” NOT
“What does a law mean?”
Fuller Reading Hart
“The task of interpretation [Fuller thinks Hart is saying] is commonly that of determining the meaning of the individual words of a legal rule, like “vehicle” in a rule excluding vehicles from a park.
Communication is possible only because words have a “standard instance,” or a “core of meaning” that remains relatively constant, whatever the context in which the word may appear … This meaning a word will have in any legal rule, whatever its purpose. In applying the word to its “standard instance,” no creative role is assumed by the judge. He is simply applying the law.” [96]
Law: “Don’t Sleep in the Train Station.”
Two people are arrested:
Person A: Found sleeping on a bench with a pillow,
blanket and his shoes off.
Person B: Found sitting in a seat with head drooped
forward and snoring.
Question: Does Person A violate the law any more or less than Person B?
What would a reasonable judge decide?
What are the criteria of reasonableness and how are
they determined?
Fuller: Hart Criticism 2
Rule of Recognition: “certain fundamental accepted rules specifying the essential lawmaking procedures”
Recognition rules thus determine when a pronouncement is valid law, but are not themselves law
Two points:
Secondary rules imply a connection between law and
morality. The connection is stronger than Hart’s
characterization of those rules suggests..
Secondary rules
must
consist of rules of morality
because their force and efficacy stems from their
acceptance
.
Why do we accept them? They must be based on the
Fuller’s Position
There is an “external morality” that makes law
possible
and good laws have an “inner morality fo law”
There is a morality that is apart from law and makes
laws make conceptual sense and without which laws
could not be.
Eight Ways to Fail to Make a Law
Make only
ad hoc
decisions. No rules.
Failure to make the rules public.
Employ retroactive rules.
Cannot direct behaviour
Makes the authority of existing rules suspect
Eight Ways to Fail to Make a Law
Offer contradictory rules
Make rules that cannot be obeyed.
Change the rules all too often
Decide cases so that there is no transparent connection between
the rules and the administration of rules
Question
Are Fuller’s eight ways not to make a law indicative of any particular moral commitments?
They don’t seem to be moral in the usual way of talking
about morals?
Are Fuller’s eight ways not to make a law merely eight conditions that a law needs to meet in order to make sense?
They might be conditions for the sense (vs. nonsense)
of something being a law.
Law and Procedure
Legal positivism claims that laws are justified by appropriate
procedures.
From Hobbes to Hart, the definition of
appropriate procedure has shifted.
A law made by an appropriate procedure is justified in the sense
of
legitimate
.
Recall: Legitimacy Questions
Legitimacy
: What justifies the decision of a judge (in
general)?
What justifies the authority?
What makes the judge an appropriate
authority?
What gives the judges' decision binding force?
Is the authority legitimate?
Hart Deepens the Concept of
Legitimacy
Hart distinguishes between primary and secondary rules.
A primary rule must be accompanied by, or be the
consequence of, appropriate secondary rules.
Primary rules are not sufficient by themselves for a system of law.
They are uncertain, static and inefficient.
Secondary rules provide rules of recognition, change and arbitration. For Hart, the legitimacy of secondary rules requires primary rules.
Recall: Substantive Questions
Substantive
: What justification is there for the judges' (particular)
decisions?
What justifies the decision of an authority?
Are the reasons offered by the judge adequate?
Are the reasons substantial (good/right reasons)?
NB
: Hart’s account of secondary rules attempts to show that these
substantial questions are in some part (but not totally) answered
by accounts of
legitimate procedures
.
Hart vs. Fuller (I)
Hart’s position is that some substantial questions are best answered as questions of legitimate procedure.
The moral component of law is not eliminated, but it is
“pushed back” into the socio-historical milieau.
Fuller argues that Hart’s secondary rules are not merely issues of
legitimate procedures, but they have a significant, if not total, moral
component.
Hart vs. Fuller (II)
Fuller argues that Hart doesn’t tell us why secondary rules are “right and necessary.”
Fuller claims that there are moral precepts that inform the law.
NOTE: These are general precepts not particular
injunctions. Individual’s beliefs about good and bad
behaviour
are not
what Fuller has in mind.
Now, Hart does not deny a relationship between law and morals, but it is just that morals do not necessitate specific legal outcomes.
King – Birmingham Jail (I)
“Injustice anywhere is a threat to justice everywhere.”
“I am sure none of you would want to rest content with the
superficial kind of social analysis that deals with effects and
does not grapple with underlying causes.”
King – Birmingham Jail (II)
“We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” “We have waited for more than 340 years for our constitutional and
God given rights.”
“Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue.”
King – Birmingham Jail (III)
“We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate
Thoreau (I)
“I HEARTILY ACCEPT the motto, — "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe, — "That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient.”
Thoreau (II)
Thus the State never intentionally confronts a man's sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. … When I meet a government which says to me, "Your money or your life," why should I be in haste to give it my money? … I perceive that, when an acorn and a chestnut fall side by side, the one does not remain inert to make way for the other, but both obey their own laws, and spring and grow and flourish as best they can, till one, perchance, overshadows and destroys the other. If a plant cannot live according to its nature, it dies; and so a man.
Thoreau (III)
I have never declined paying the highway tax, because I am as desirous of
being a good neighbor as I am of being a bad subject; and as for supporting schools, I am doing my part to educate my fellow-countrymen now. It is for no particular item in the tax-bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with — the dollar is innocent — but I am concerned to trace the effects of my allegiance. In fact, I quietly declare war with the
State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.
