week 1 – what is...
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Juris Essay CANS – Goldbach 2019 April (Charlie Shi)Designed for the Jurisprudence Take-Home Exam, Citations Included
Table of ContentsWeek 1 – What is Jurisprudence?.........................................................................................3
Descriptive Legal Theory...............................................................................................................3Introduction to Jurisprudence........................................................................................................3Group Exercise #1: Riggs v. Palmer..............................................................................................4Gordon Christie: Law, Theory and Aboriginal Peoples...................................................................5
Week 2 – Natural Law and Positive Law...............................................................................6Historical Theories of Natural and Positive Law............................................................................6Legal Positivism.............................................................................................................................8Contemporary Theories of Natural and Positive Law.....................................................................9
Week 3 – H.L.A. Hart, The Concept of Law........................................................................11HLA Hart’s Concept of Law..........................................................................................................11Primary and Secondary Rules......................................................................................................13Indigenous Legal Rules................................................................................................................13The Case Of The Speluncean Explorers – Lon Fuller...................................................................15
Week 4 – Hans Kelsen’s Pure Theory of Law.....................................................................15Pure Theory of Law......................................................................................................................15The Hierarchy of Norms...............................................................................................................16
Week 5 – Lon Fuller and the Inner Morality of Law...........................................................18The Morality of Law.....................................................................................................................18Moralities To Make Law (8 Conditions).......................................................................................208 Conditions In Practice...............................................................................................................21Fuller On Separation Thesis.........................................................................................................23
Week 6 – Indigenous Legal Studies...................................................................................23Truth and Reconciliation..............................................................................................................23Intersecting Worldviews...............................................................................................................24Canada’s Indigenous Constitution................................................................................................25
Week 7 – Joseph Raz, Authority of Law..............................................................................28Practical Reasoning (Order of Reasons).......................................................................................28Conditions For Authority..............................................................................................................30Sources of Law.............................................................................................................................30
Week 8 – How Do Judges Decide? (Part 1).........................................................................31The Path of Law (Holmes)............................................................................................................31Classical Legal Thought and Legal Formalism.............................................................................32Legal Realism...............................................................................................................................34Critique of Legal Realism.............................................................................................................36
Week 9 – How Do Judges Decide? (Part 2).........................................................................38Hard Cases (Dworkin)..................................................................................................................38Judges’ Decision Analysis.............................................................................................................39
Week 10 – Critical Legal Theory and Feminist Legal Theory.............................................40Feminist Legal Theory..................................................................................................................40The First Wave of Feminism and Feminist Legal Theory.............................................................41Intersectional Feminist Legal Theory...........................................................................................42Critical Legal Studies...................................................................................................................44
Week 11 – Critiquing Rights..............................................................................................45Rights - Hohfeld............................................................................................................................45Critique of Rights - Brown............................................................................................................46
Week 12 – Key Issues and Course Summary......................................................................47
Three Globalizations (Duncan Kennedy)......................................................................................48
Week 1 – What is Jurisprudence?
Descriptive Legal TheoryBrian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 3-8.
Legal theory would be more clearly (and more deeply) understood if its issues and the writings of its theories were approached through a focus on questions rather than answers. Once one sees that different theorists are answering different questions and responding to different concerns, one can see how these theorists are often describing disparate aspects of the same phenomenon, rather than disagreeing about certain simple claims about the law.
Descriptive TheoryThe approach mentioned above, emphasising the extent to which different (and apparently competing) theorists might be seen as an answering different questions, both derives from an helps to explain the under discussed matter of how we can have descriptive theories of an ongoing social phenomenon such as law. Legal systems are extremely complex. Inevitably, a theory about law can capture only a portion of the relevant facts (This assertion is not new to legal theory: the claim and its implications are discussed insightfully and in detail by H.L.A. Hart and John Finnis among others). (Page 4)
What maybe the most remarkable about Hart’s discussion is that he never directly answered the question he was considering. Instead, Hart’s discussion achieved something far more subtle. The question is not so much answered (or avoided or circumvented) as transformed. Hart’s argument is that when we ask this question, we are actually seeking the solution to an entirely different question or set of questions, and it is because we have been asking the wrong question(s) that the answers given have been unsatisfactory. (Page 6)
Hart proposes 3 issues we consider when we ask “What is Law?”:1. How does law differ from and how is it related to orders backed by threats?2. How does legal obligation differ from, and how is it related to moral obligation?3. What are the rules and to what extent is law an affair of rules. (Page 7)
4. To what extent is there or should there be legal theory? The question is not quite as strange as it sounds. In many of the discussions that go on in the name of jurisprudence, what is being considered is nothing more than the application to law of some more general theory from another area (moral theory, political theory, social theory). For example, traditional natural law theory (Chapter 5) is the application of a general ethical theory to law; legal positivism (Chapters 3 and 4) is arguably the application of general principles of social theory to law; feminist legal theory, critical race theory and critical legal studies (Chapter 19) are the application of particular critical social theories to law; and the questions about justice, punishment and the moral obligation to obey the law (Chapters 8, 9, 16) are the application of general moral theories to legal issues. (Page 8)
Introduction to Jurisprudence
“In 1958 H.L.A. Hart posed a hypothetical. Here it is: A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called "vehicles" for the purpose of the rule?”Pierre Schlagg (1999).
• How did you decide whether something was a vehicle? What criteria did you use? • Does it make a difference that you are designating something as a vehicle for the purposes of applying a
particular rule? • What kinds of background questions or underlying purposes inform your thinking? • Different theorists have different agendas / questions they are seeking to answer / theorists that they are
talking to or against. Even if not stated, it is important to know what questions each author is attempting to answer.
• Per Bix, – I suggest that the best approach is the following: where a theorist has not articulated a purpose
for her claim, one should seek a purpose against which the theory would have some claim to success, without making the theory trivial.
First definition from Andrei Marmor, Jacob Gould Schurman Professor of Philosophy & Law at Cornell University:“Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist.”
M.D.A. Freeman in Lloyd’s Introduction to Jurisprudence (9th Edition): “Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law to justice and morality and about the social nature of law. A proper discussion of questions such as these involves understanding and use of philosophical and sociological theories and findings in their application to law. Questions of theory constantly spring up in legal practice, though they may not be given very sophisticated answers.”Michael Freeman, Lloyd’s Introduction to Jurisprudence, 9th ed (London: Sweet & Maxwell, 2014) at 3.
How does Professor Christie define the nature of law? – “law is always "ought" momentarily crystallized , as it expresses one set of values captured in a
system meant to promote these values in a society desirous of living in and through them.” – Regulating relationships between people; trying to create order
Group Exercise #1: Riggs v. Palmer
An introduction to natural law & legal formalismRiggs v. Palmer, 115 N.Y. 506 (1889).
On the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer, subject to the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer, in case Elmer should survive him and die under age, unmarried and without any issue. The testator at the date of his will owned a farm and considerable
personal property. He was a widower, and thereafter, in March 1882, he was married to Mrs. Bresee, with whom before his marriage he entered into an ante-nuptial contract in which it was agreed that, in lieu of dower and all other claims upon his estate in case she survived him, she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and, subsequently, to the death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old. He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he wilfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it? The defendants say that the testator is dead; that his will was made in due form and has been admitted to probate, and that, therefore, it must have effect according to the letter of the law.
According to Judge Earl, writing for the majority, lawmakers did not intend for Elmer to inherit in such circumstances:
“It could never have been the lawmakers’ intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it….”
• Moreover, “We need not … be much troubled by the general language contained in the laws.” Judges should rely on the "fundamental maxims of the common law," which include the idea that "[n]o one shall be permitted … to take advantage of his own wrong.”
• Fundamental maxims “are dictated by public policy, have their foundation in universal law administered in all civilized countries and have nowhere been superseded by statute.”
Minority follows the literal or strict interpretation of the statute. According to Judge Gray (dissenting), even though it may be repugnant to think that Elmer can inherit under the will, unfortunately the court has to follow the letter of the statute:
– “If I believed that the decision … could be affected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of conscience. We are bound by rigid rules of law.”
• In the same case and the same court, judges fundamentally disagree about how to decide what the relevant law is. What does this say about the law? How is it possible to have such differing opinions?
• What are the values that are being created and promoted through the majority and minority opinions?
Gordon Christie: Law, Theory and Aboriginal Peoples
Gordon Christie, “Law, Theory and Aboriginal Peoples” (2003) 2 Indigenous LJ 67, vol 2 at 70.
Approaching the Law From Various Critical Perspectives The law is always "ought" momentarily crystallized, as it expresses one set of values captured in a system meant to promote these values in a society desirous of living in and through them. As an institution whose purpose is to bring a certain kind of order to relationships between people, between people and resources, and between people and the state, snapshots can be taken such that the order can be studied and internally criticized. Nevertheless, the law itself is not a lifeless monolith whose inner nature is to be discovered and described, but a normative theoretical construct constantly being created and reinforced from within, constantly asserting that these values ought to be promoted in this way. (Page 70, Volume 2)
There are two sorts of prescriptive analysis with which a scholar might engage. On the one hand, scholars might undertake to criticize the law from the standpoint of the very theory about the good and the right it purports to embody. These scholars agree the law ought to promote the values and principles it has been designed around, but find fault with how this project of building a world of crystallized value has been carried out. This I call "internal prescriptive criticism." (Page 71, Volume 2)
On the other hand, scholars may find fault with the very theory about the good and the right underlying the law as it currently exists. There are any number of independent theories about the good and the right at play in the Western world, any one of which could serve as underpinning for the law as a social institution. Scholars arguing that the law ought to be designed around values and principles contained within one of these other theories would be engaged in what we could term "external prescriptive criticism." (Page 71, Volume 2)
In exploring the perception of some Aboriginal people that domestic Canadian law is alien and oppressive , we begin with a description of the law, a description which articulates that vision of society which animates the law, giving it life and guidance. In unpacking how the law approaches the question of the protection of Aboriginal interests, we also consider an internally critical perspective, the perspective of a liberal theorist, examining an argument to the effect that the liberal project must be rethought, as more must be done to further the aim of protecting Aboriginal culture by respecting the autonomy of Aboriginal communities. In examining this sort of internal criticism, however, we will begin to see how debate between liberal theorists about how best to protect Aboriginal interests masks the threat liberal theory presents to Aboriginal peoples. In adhering to deeper shared visions about the self, the community and the state, and in engaging in the shared mission of transposing these visions onto the lives and worlds of Aboriginal peoples, liberal theorists reveal liberal theory as the problem, not as a source of any acceptable solution. (Page 72, Volume 2)
Critical theorists attack the liberal notion of the self, the independent and prior entity which has beliefs and values, substituting in its place the fluid, dynamic and experientially-determined self. There are no "essential interests," no aspect of the self that is necessary or fixed, as the self is conceived as entirely contingent, a mere vessel for "possibility" itself. This can be a very attractive notion of self for contemporary Aboriginal people, for it permits an unlimited amount of free play to infuse the modem self-identity of Aboriginal individuals. In this modem world of inter-mixed and inter-mingled cultures, with Indigenous peoples around the world struggling to maintain their identities in the face of massive cultural shock and relentless efforts at cultural assimilation, Aboriginal people can grasp onto this critical notion of the self, protecting the sense that there still are many Aboriginal people surviving in the midst of the larger cultural milieu. Just as there is no self that is fixed and determinate, there is no culture that is fixed and determinate-the edges of selves and cultures are blurred, with even the centres open for revision, as cultures meet and interact. (Page 110, Volume 2)
Week 2 – Natural Law and Positive LawBix Chapter 3 (p33-37) and Chapter 5
Historical Theories of Natural and Positive LawConceptual Analysis
• What is conceptual analysis?– Tracking shared understandings of concepts– Define terms by necessary & sufficient conditions
• What is not conceptual analysis? – not empirical, not causal, – not falsifiable or provable, – not necessarily testable through experimentation
Cicero (106-43 BCE)
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands…”
Cicero on Natural Law:1. Law is Justice
– right reason agrees with what is natural [very Platonic]– “in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is
just and true”. Q: Any examples of true law?2. Universal application and obligation
– “We cannot be freed from its obligations by senate or people…”3. Every person has access to knowledge of the law by use of reason
– “We need not look outside ourselves for an expounder or interpreter of it”4. Law is unchanging over time
– does not differ in different societies–unchanging and everlasting – “there will not be different laws at Rome and at Athens or different laws now and in the future, but
one eternal and unchangeable law will be valid for all nations and all times…”
Thomas Aquinas (1225–1274)Italian theologian, believed that the exercise of philosophy depends upon pre-existing knowledge, which can be traced back to the common truths known to all (philosophy begins from pre-philosophical principles already had by everyone).
• Aquinas deduced four categories of law: – (i) God’s Eternal Law (e.g. laws of physics)– (ii) Natural Law,– (iii) Divine Law (e.g. law of the church), and – (iv) Human-made or Positive Law
• “Natural law is: a reflection of God’s reason , built into human nature; it consists of a first judgment–that the good should be done and pursued and evil avoided—and other most general judgments that are beyond contest”
• Cicero: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands…” (Cicero)
• Law made by people is posited; positive law includes rules “that are restatements of, or authoritatively promulgated deductions (conclusiones) from, general moral principles or norms.”
– Positive law is derived from natural law. – Positive law that is just have the power of binding in conscience.
• Sometimes the natural law dictates what the positive law should be: eg. Prohibition of murder.• Law “is an appeal to the mind, choice, moral strength (virtus) and love of those subject to the law”
Just and Unjust Law• If the law is (1) ordered to the common good, (2) the law-giver has not exceeded its authority, (3) the
law’s burdens are imposed on citizens fairly, then it is just.• There are often moral reasons to obey an unjust law.
– If the law is part of a generally just legal system and public disobedience might undermine the system
– Aquinas: A citizen is not bound to obey “a law which imposes an unjust burden on its subjects” if the law “can be resisted without scandal or greater harm”. (Bix page 74)
“Legal Interpretivism.” In The Stanford Encyclopedia of Philosophy; Brian Tamanaha (2001). A General Jurisprudence of Law and Society. Oxford: Oxford University Press.
• The person or body that “has the care of the community” is entitled to make laws. All human-made law is “posited” (hence “positive” law). This includes rules “that are restatements of, or authoritatively promulgated deductions (conclusiones) from, general moral principles or norms.”
• As opposed to a law that always was and is, positive law is human-made law articulated and enforced by an authority. Its existence is a question of fact rather than a “natural always being” (Tamanaha 2001: 5). For Aquinas, positive law still had to conform to natural law in order for it to have authority. In that way, subjects of the sovereign are obligated to comply with a just law, even though they may be coerced to comply with an unjust law (Tamanaha 2001: 18).
Law in medieval and renaissance periodsNature means human nature which at its source is the good; this opened the door for a secular theory of natural law, the “Laws of Nature” and “unalienable rights”
When and how does positive law become the dominant source of law?• Hobbes, Locke, Rousseau: Political (and thus legal) authority is grounded not in conquest or divinely
instituted hierarchy, nor in obscure myths and traditions, but rather in the rational consent of the governed.
– Questions that concerned theorists of the time: Under what conditions are laws that government espouses legitimate and obligatory? (e.g. under what conditions do citizens have an obligation to obey the law?)
• Social contract theory: We rationally contract together to set over ourselves a political authority, charged with promulgating and enforcing a single, clear set of laws, for the sake of guaranteeing our natural rights, liberties and possessions.
• In other words, law is made by people, but there are still some “unalienable rights”• Natural Law can be discovered by reason and applies universally, to all people
EnlightenmentDuring the Enlightenment, reason replaced religion as the guiding force and theory shifted to finding the legitimacy of institutions in the form of a “natural” social contract, for the protection of “absolute rights.” These absolute rights – for example, the right to life or the right to protect private property – were immutable, vested in individuals, independent of the sovereign and inextinguishable. The norms that formed their basis had determined content, with natural origin and truth (in a world where there is a truth which is and can be discovered).
Sidebar: Enlightenment Per Kant, “enlightenment” is the ability to and process of undertaking to think for oneself, relying on one’s own intellectual capacities to determine what to believe and how to act
Natural Law and Property Rights• How do we understand natural law claims to property rights?
– Locke believed in a natural right to life, liberty, and property– Natural rights? E.g. claims or privileges that we have as an individual– Or Natural Law? E.g. duties that we have toward others: the duty not to kill, enslave, or steal– US Constitution drops reference to property : natural rights are life, liberty, pursuit of happiness.
Any ideas as to why? • DELGAMUUKW v. BRITISH COLUMBIA [1997] 3 S.C.R. 1010
– Recall: claim by 71 Houses for title and self-government; presenting evidence of a spiritual connection between Houses and the territory. One of the main issues the court addresses: what is
the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof?
Legal PositivismBrian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 33-37.
Legal positivism is based on the simple assertion that the proper description of law is a worthy objective, and a task that needs to be kept separate from moral judgments (regarding the value of the present law, and regarding how the law should be developed or changed).
– Early advocates included Jeremy Bentham (1748-1832), John Austin (1790-1859).
Insightful terms, legal positivism is built around a belief– or perhaps the assumption or the dogma–that the the question of what is the law is separate from, and must be kept separate from, the question of what the loss should be. The position can be summarized in the words of John Austin:
“the existence of law is one thing; it’s merit or demerit is another. Whether it be or not is one inquiry; whether it be or be not conformable to an assumed standard, is a different inquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”
Rise of Positivism• They are related, but what is the difference between legal positivism and positive law?
– Legal positivism: law is separate from considerations of ethics and morality– Positive law: a law created by man; non-natural law
• The “view that a descriptive, or at least morally neutral, theory of law is both possible and valuable.”– 1) law is a social institution– 2) social institutions can be studied in an objective fashion, without bringing in ethics or ideology
• “the question of what is that law is separate from, and must be kept separate from, the question of what the law should be.” Is versus Ought. Per Austin “the existence of the law is one thing; its merit or demerit is another.”
• Legal positivism focuses on the law as a type of social institution, and, within that focus, a morally neutral theory seems both possible and valuable. (Bix p81)
• Bix identifies 3 aspects of separation thesis (p35). What are they?– Legal validity—what makes legal rules valid– Status of a legal or norm system– Place of moral standards in the construction of a theory of law
Recalling Riggs v Palmer:
Judge Earl (writing for the majority)• Judges should rely on the "fundamental maxims of the common law," which include the idea that "[n]o
one shall be permitted … to take advantage of his own wrong.” • Fundamental maxims “are dictated by public policy, have their foundation in universal law administered
in all civilized countries and have nowhere been superseded by statute.”• What theory of Law is at play here?
Contemporary Theories of Natural and Positive LawNatural Law and John Finnis (Page 69)The standards against which law is judged have sometimes been described as “a/the higher law”.
The approach traditionally associated with the title of “natural law” focused on arguments for the existence of a “higher law”, operations of its content, and analysis what should follow from the existence of a “higher law” (in particular, what response citizens should have to situations where the positive law – the law enacted within particular societies– conflicts with the “higher law”).
John Finnis (Born 28 July 1940)• Finnis’s work is an explication and application of Aquinas’ view: an application to ethical questions, but
with the special attention to the problems of social theory in general and analytical jurisprudence in particular. (Bix p77)
• Law enters the picture as a way of effecting some goods—social goods which require the co-ordination of many people that could not be effected, easily or at all, without it, and as a way of making it easier to obtain other goods.
• Like Hart, Finnis emphasis the need to use an “internal point of view” in analysing a legal system, and like Joseph Raz, he believes our understanding of legal systems should centre on the fact the law affects our reasons for action.
Seven Basic Goods:– Knowledge, Life, Play, Aesthetic Experience, Sociability, Practical Reasonableness, Religion – These are BASIC GOODS that help human beings to flourish (this is a sufficient (full) list, but
you don’t necessarily have to be interested in or try to realize all seven)• What does it mean that these goods are intrinsic?• Law is the social institution that provides an ordering to support people in achieving those basic goods. • Morality comes in as we seek these goods which are all of the highest priority. The question then
becomes what principles one should use to decide between intrinsic goods (Maslow’s Hierarchy of Needs)
• “Basic requirements of practical reasonableness”: one may never act against a basic good, regardless of the benefit one believes will come from taking that path.
• Is there an obligation to obey an unjust law? p79• The law is binding because in a just legal system “valid legal rules create (prima facie) moral obligations”
– What does this mean? – How does Finnis’ Natural Law theory reflect or differ from earlier theories of Natural Law?
Universal Declaration of Human Rights (UN)– Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood– Article 3. Everyone has the right to life, liberty and the security of person. – Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all
their forms. – Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. – Article 9. No one shall be subjected to arbitrary arrest, detention or exile.– Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him. – Article 13 (1). Everyone has the right to freedom of movement and residence within the borders of each State.
Canadian Charter of Rights and Freedoms is another example of contemporary natural law.• Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice. • Are these Natural Law rights? What is the source of Law?
– For example, in R. v. Morgentaler: Per Beetz, “If an act of Parliament forces a person whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain
effective and timely medical treatment and, on the other hand, inadequate treatment or not treatment at all, the right to security of the person has been violated.”
– Per Wilson J, “the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass.”
Re Section 24 of the BNA Act (Persons Case) and Natural law• “Their Lordships are of opinion that the word "persons" in s. 24 does include women, and that women are
eligible to be summoned to and become members of the Senate of Canada.”• How does the Privy Council make this finding? On what does the Privy Council rely?
– NOT Natural Law—”Nor are their Lordships deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one either male or female has a right to be summoned to the Senate.”
– Why not Natural Law? • “The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural
limits. The object of the Act was to grant a Constitution to Canada.”• Law and Social Norms: “The exclusion of women from all public offices is a relic of days more
barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary.”
• “Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive.”
• Law and History: Referring therefore to the judgment of the Chief Justice and those who agreed with him, their Lordships think that the appeal to Roman Law and to early English decisions is not of itself a secure foundation on which to build the interpretation of the B.N.A. Act, 1867
Week 3 – H.L.A. Hart, The Concept of LawBix Chapter 3 (p37-49)Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
HLA Hart’s Concept of LawH.L.A. Hart (1907-1992)Probably the largest influence on modern legal positivism. According to Oxford, he worked in MI5 during WWII. Was chair of Oxford Jurisprudence from 1952-1969. Published The Concept of Law in 1961 based on lectures given to undergraduate students. Social theory in the sense of trying to understand social behavior.
Command Theory (Sovereign Command) (Bix p37)• John Austin, inheritor of Bentham’s Utilitarian tradition, removed moral content as a necessary feature in
law and declared that a thing is a law when a rule is the command of the sovereign backed by the threat of punishment. Laws are influenced by morality and the customs of society, but they are not coterminous.
• “The existence of the law is one thing; its merit or demerit is another.”• Laws are general orders that apply to classes of actions and people and that are backed up by threat of
force or “sanction.” • This approach is positivist because, legal systems are understood as patterns of command and obedience
that can be identified without thinking about whether the sovereign has a moral right to rule or whether the commands are ethical
According to Austin, Law is:
• General commands that apply to the population at large (not a particular command that you would issue to one person)
• Emanates from the Sovereign/ruling person(s) not God or Nature • Existence of law is a matter of fact• Backed by the force and power of the Sovereign (state has the ability to enforce its rules)• Hart also refers to Austin’s concept of law as the predictive theory—predicting what an authority will do
if you violate a rule
Hart says Austin is wrong because he does not understand the meaning of obligation.• How is obligation a central part of Hart’s theory?
– “The fundamental objection is that the predictive interpretation obscures the fact that, where rules exists, deviations from them… are also a reason or justification for… applying the sanctions.” (Bix p84)
– Rules are the reason or justification for applying sanctions when they are broken.– NB: We will talk more about reasons when we look at Joseph Raz
• What is it in the difference between obligation/duty versus being compelled that is so important to Hart?
According to Hart, Austin is wrong because… 1. Issuing a command does not capture the full breadth of our understanding of law
– What does it mean to command someone to do something? The robber armed with a gun orders the store clerk to hand over money, is the robber issuing a command? Is that how we understand Law?
2. Is the threat of punishment a necessary part of law?– What is our reason for obeying a law? Is it because we fear punishment? What if you knew
you’re not going to get caught? E.g. At a red light in a hamlet at 3AM, waiting to make a left and you know there is no police. Do you wait or make the left? (Hart’s example: reporting for military service)
– Law is not just a command backed by threat. It has some element of authority. We have some obligation even if we would never be found out and have nothing to fear from disobedience.
3. A command backed by threat is not the only type of law – Very narrow view of law. Are commands backed by threat of punishment the only types of laws?
What other kinds of laws are there? What are power conferring laws? 4. How do we explain obedience when regimes change?
– We know from #2 that law is not just threat of punishment. Laws have a “general habit of obedience,” and “deference to authority” But, law can’t merely be the habit of obeying the sovereign.
– Queen Rani 1 rules with commands backed by threat of punishment. We can observe that people general follows her rules. Queen Rani 1 dies in her early 80s. Her daughter Rani II takes over and rules her in place. Will citizens follow the laws of Rani II? Why?
The Internal Aspect Of RulesIf Law is not command backed by threat, then what is it?
The idea is that one cannot understand a social system unless one understands how the people who created the system or who participate in the system perceive it. This “hermeneutic” approach – that giving priority to trying to understand how other people perceive their situation – is always in tension with those who want social theory to be more scientific. (Bix p42)
Laws have a “general habit of obedience.” True, but citizens do not follow the rules of the Queen merely out of habit.
• “general convergence or even identity of behaviour is not enough to constitute the existence of a rule requiring that behaviour” (Hart, 55).
• It is not enough to explain law by reference to external points of view; need to understand and explain the internal aspect of social rules—the way that social rules justify demands for conformity and criticism for disobeying
• “the continuity of legislative authority … depends on that form of social practice which constitutes the acceptance of a rule” (Hart, 59)
Mapping Internal Versus External Perspectives (Bix p43)Mapping external behaviour is not enough. A theory of Law needs to explain the complex internal aspect of rules that are their own reasons for actions• As an external observer, you could map the system of punishment— “the external observer may, on the
basis of the regularities observed, correlate deviation with hostile reaction” (89)—but is that really to know or understand the legal system?
• Consider Kafka’s The Trial (or the TV show, Lost): imagine you lived in a world where you did not understand the rules or how they were made but were reasonably able to predict when a behaviour would be met with hostile reaction or punishment.
• Is there a legal system? Are you really part of this society?• External POV “cannot reproduce… the way in which the rules function as rules in the lives of those who
normally are the majority of society” e.g. “the officials, lawyers, or private persons who use them” (Hart, 90)
Minimum Content of Natural Law (Bix p48)Hart: “The minimum content of natural law” is just one more exploration along the border between law and morality’s overlap. Often they do overlap, without there being any necessary connection between the two.
There are certain contingent facts of the human situation in the present time that we are all mortal and vulnerable, that resources are limited, and that we are all dependent to some extent on other people.
Hart speculated that any legal or moral system which did not offer minimal protection to at least a significant minotiry of the population would not-- and could not-- survive for very long.
Primary and Secondary Rules“Words said or written by the persons qualified by these rules, and following the procedure specified by them, create obligations for all within the ambit designated… by the words.”
• Primary rules: the rules that we would most commonly recognize as substantive law (such as tort law, contract law, etc.).
• Primary rules govern behaviour of citizens.• Secondary rules: The rules that regulate rules and which “specify the ways in which the primary rules
can be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”
• Rules of recognition - A written constitution, or the criteria (in the US) that in order for a law to be valid, it has to be passed by a majority of both Houses of Congress and then signed by the President.
• Rules of adjudication – for example, the rules that govern procedures in court.• Rules of change – for example, the rules of a parliament that determine how legislation is enacted
and amended.• Why are Trumps tweets not law?
Rules of Recognition in CanadaConstitution Act of 1867?
• Section18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to
time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof
Indigenous Legal RulesUN Declaration of the Rights of Indigenous Peoples
Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.
Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010• “Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations
in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) — ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown’.”
Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40“In April 2012, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation was not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8. The reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions. On appeal, a majority of the Federal Court of Appeal concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act . The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. It deemed the reviewing judge’s decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The Mikisew appealed.”
“With respect to the duty to consult, the development of legislation by ministers is legislative action that does not trigger this duty. The duty to consult is an obligation that flows from the honour of the Crown, a foundational principle of Aboriginal law which governs the relationship between the Crown and Aboriginal peoples. This duty requires the Crown to consult Aboriginal peoples before taking action that may adversely affect their asserted or established rights under s. 35 of the Constitution Act, 1982 and ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights. Although the duty to consult has been recognized in a variety of contexts, Crown conduct sufficient to trigger the duty has only been found to include executive action or action taken on behalf of the executive.”
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) [2017] 2 SCR 386“The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought government approval to
build a year-round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. After efforts to continue consultation failed, the respondent Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion, and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision.”
The Case Of The Speluncean Explorers – Lon FullerLon L. Fuller, “The Case of Speluncean Explorers” (1949) 62 HLR 4 at 616-645.
The cavers survived and were arrested for murder. In Newgarth, a guilty verdict carried a mandatory sentence of capital punishment. The relevant statute states, "Whoever shall willfully take the life of another shall be punished by death.“ N. C. S. A. (N. S.) section I2-A. Even though they were found guilty, the trial judge, the jury, and the Chief Justice of the court of appeal petitioned the Chief Executive (head of state) asking that the sentence be commuted to a term of imprisonment of six months.
– The Chief Justice, Truepenny CJ finds that they cavers are guilty of murder. The Statue is clear on its face and should be interpreted literally. However, he supports asking the Chief Executive to commute the sentence.
– Foster J, felt that the cavers were innocent of murder because they were in a “state of nature”; positive law only exists insofar as people are part of a society. He wrote, “When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist.” Additionally, this was a case of self-defence.
– Tatting J, Is skeptical about the idea of the state of nature (how do we know when to invoke it). He disagrees that self-defence applies in this case, and takes issue with the fact that the four are able to make binding agreements in the “state of nature”. He also struggles with the challenges of this case and ultimately decides that he is unable to discharge his duty in this case.
Week 4 – Hans Kelsen’s Pure Theory of Law
Bix Chapter 4Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
Pure Theory of Law
Hans Kelsen was born in Prague. He was the author of the Austrian constitution in 1920 following the First World War. He left Austria in 1930 because of the rise of totalitarianism and moved to Germany, but then had difficulties in Germany because of his Jewish ancestry. In 1940, Kelsen moved to the U.S.
1. What is the general question that Kelsen is grappling with? What is the overall issue or topic?– What is law and how is it made?
2. How do others address this issue? – Natural Law—law is… Legal Positivism—law is …
3. What is the problem with how others address this issue?
– Terminology gets confusing b/c Kelsen uses “nature” to refer to socio-empirical theories: “Hand in hand with progress in the empirical natural sciences and with the breakdown of religious ideology, bourgeoisie legal science shifted from natural law to legal positivism” (21)
Kelsen is concerned about the Law & Morality folks, proponents of Natural Law who believe that “the positive state system must have some concern for justice…” (22). For Kelsen this confuses law with legal policy [Separability Thesis]. “Norms of the law are not valid by virtue of their content” (Kelsen 60).
Kelsen is also concerned about law being understood as a material fact—the empirical and sociological theories of law that only see law as part of the world of fact or natureThe validity of a legal system should not be confused with its efficacy, “that is, with the fact that the human behaviour referred to by the legal system corresponds to the system to a certain degree” (Kelsen 60).
Separability ThesisThe idea of separation of law and morals, the “separability thesis” associated with legal positivism, can operate at one of three levels: (1) the question of whether the legal status (legal validity) of a rule or norm can be separated from a moral evaluation of its content; (2) the question of whether the legal status of a rule or norm system can be separated from a moral evaluation of its content (a question often discussed in terms of the Nazi regime had law or not); and (3) the question of the role of moral standards in the construction of a theory of law.
Normative Thesis• The separation of law and fact • Legal positivists* look to an act (sovereign command, threat of punishment, passing of legislation,
actions of officials), something that is perceptible to the senses– * this includes Hart, who published his book, The Concept of Law, 30 years after Kelsen
published Introduction to the Problems of Legal Theory• Kelsen says: in order to understand what Law is, it is not enough to point to material facts; there is
also some meaning “immanent in or attached to the act or event” – We can describe the acts, events, material objects in both their factual-empirical sense, and we
can describe them as legal acts, events, or objects (e.g. documents)– Therefore, law and fact have to be separable.
• What makes these acts, events, or material objects “legal”?– Kelsen: “The specifically legal sense of the event… comes by way of a norm whose content
refers to the event”. What is the meaning of norm in this sense?– Kelsen’s solution to the problems in other theories of law: a pure theory of law that does not rely
on morality and is not reducible to social fact alone.
The Hierarchy of Norms
How Norms Operate In A Legal SystemKelsen describes the interrelationship of norms in a legal system:
• The legal system is a system of legal norms. • There are “higher” and “lower” level norms? What are some examples?
– Two laws, where one authorizes the creation of another, belong to the same legal system. A criminal law enacted by parliament (e.g. the Criminal Code) and a constitutional law authorizing parliament to enact criminal laws (e.g. the BNA Act)
• Moreover, every act or event gains its legal-normative meaning by another higher legal norm that confers this normative meaning on it. All legal norms can and should be understood as an authorization to an official to impose a sanction (Bix).
Another way to think about it: Kelsen talks about each law existing on the basis of a presupposed norm. The Criminal Code presupposes parliament’s authority to enact legislation.
• Chain of validity: the legal system as a chain of creation– Two laws belong to one chain of validity if one authorizes the other or if there is a third law
authorizing both– A legal system means that all laws belong to one chain of validity
Higher norms can be higher either because they are more general (general versus the particular; think of Acts, Regulations, and Standards) or because they are procedural versus substantive
1) A higher legal norm may govern the process for making law, for example a constitution EG: Constitution > Legislation > Adjudication > Judiciary and Administration
2) A higher legal norm may also be the more general rule which establishes the validity of more concrete or particular pronouncements, for example a will or a contract
Examples• British Columbia Hydro and Power Authority;
– Before dealing with the substance of the claims alleged by Hydro, I must comment on the defendants’ objection to my consideration of hearsay evidence. They rely on Litchfield v. Darwin (1997), 29 B.C.L.R. (3d) 203 (S.C.), for the proposition that hearsay evidence should not be relied upon in an application for injunctive relief when it has not been shown that evidence from the original source is unavailable.
• A law allowing qualified medical practitioners to provide assistance to those expressing a wish to die;– 227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide
a person with medical assistance in dying in accordance with section 241. 2.
How does Kelsen explain legal change? If laws are connected via the chain of validity, how do laws change? How do norms change?
• Cannabis as a Controlled Substance – Schedule II drug under the Controlled Drug and Substances Act, illegal– Then Schedule II drug unless otherwise regulated for production and distribution for medical
purposes, possession and selling for non-medical purposes is illegal – July 2018: “The proposed Cannabis Act would create a strict legal framework for controlling the
production, distribution, sale and possession of cannabis across Canada.”
Basic norms: Not created, not enacted. The basic norm “provides the nonfactual starting point essentialto the explanation of the normativity, and it guarantees that all the laws of one system belong to the same chain of validity.” (Raz)
• The basic norm is the final (or first) presupposition. It is presupposed by legal consciousness. • “Single norm as the ultimate basis for validity” “Highest principle of validity” (Kelsen)
– Example of revolutionaries staging a violent coup d’etat in a monarchy on pg. 59 – the basic norm determines whether we perceive the actions as revolutionary or treasonous
• Norms are not valid by virtue of their content • A norm is valid as a legal norm because it was arrived at in a certain way, according to certain rules • “Given the presupposition that the basic norm is valid, the legal system resting on it is also valid”
(Kelsen, 58)• All the material facts constituting the legal system are rooted in the basic norm. In other words, the “basic
norm is simply the expression of the necessary presupposition of every positivistic understanding of legal data.” (Kelsen 58)
• What is/was the basic norm in Canada? – See e.g. Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para. 69.
Other basic norms in practice: Israel’s Basic Laws (without constitution)
• First basic law: governing The Knesset (house of representatives) • 1984 Basic Law: The Judiciary • 1992 Basic Law: Human Dignity and Liberty 1992• 1994 Freedom of Occupation: “The law established the right of every citizen or inhabitant to engage
in any occupation, profession or trade”• High Court has found that Basic Laws have quasi-constitutional status
Kelsen’s PopularityWhat is the difference between efficacy and validity? (p60, 62)
– Need some level of efficacy but not complete correspondence • What does Kelsen say about International Law? (p61)
– What is the basic norm in International Law? – But, does his discussion reveal problem with the system of statehood
• On Adjudication: What does Kelsen say about making versus applying law, and how does it fit in to Kelsen’s theory? (p.68-69, 70)
– “a material fact, determined in abstracto by the general norm, must be established as actually existing in concreto” … “The act of the court is not simply a matter of pronouncing or discovering the law already compelete in the statute, the general norm. Rather, the function of adjudication is constitutive… it is law creation”
Hart KelsenMorality enters the picture through internal perspective
Separation of Law and Morality Separation of legal normativity from moral normativity
Rule of recognition -> validity comes from internal perspective
Validity of a Law Chain of validity -> origin of validity is the basic norm
Creation of law Making vs Applying Law Norms can both create and apply or do one or the other
Week 5 – Lon Fuller and the Inner Morality of Law
Bix Chapter 6Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
The Morality of LawLon L. Fuller (1092-1978)BA, LLB from Stanford University. Taught law at University of Oregon, Duke University Law School, and Harvard Law School. 1958 Hart—Fuller debate in the Harvard Law Journal. The Morality of Law first published in 1963 based on lectures given at Yale. "Lon L. Fuller was one of the four most important American legal theorists of the last hundred years.“ Professor Robert S. Summers, Lon L. Fuller (1984)
Step 1 – Two Types of Morality• There are two types of morality: the morality of duty and the morality of aspiration
• Morality of Aspiration starts at the top of human achievement• Elegant writing• “whether it is an activity worthy of a [person’s] capacities…” • You see a person drowning, what do you do?
• Morality of Duty starts at the bottom on human achievement• Grammar Rules• Gambling? Have to be 18, what else?• You see a person drowning, what do you do?
• Invisible Dividing Line between Morality of Aspiration and Morality of Duty• Too much obligation “may stifle experiment, inspiration, and spontaneity.” On the other
hand, if we set the dividing line too low, “men may begin to weigh and qualify their obligations by standards of their own” (Fuller 1963, 28)
Step 2 – Agreement on Duties• Just because we can’t agree on our aspirations, doesn’t mean we can’t achieve agreement on our
bottom level of essential duties • Previously, two camps:
• Natural Law folks : we can know and agree on what is bad, therefore it follows that we have in the backs of our mind some shared idea about what is good; our laws and regulations should reflect this
• Legal Positivists : we cannot achieve agreement on what is perfectly good, and, “it must follow that our apparent agreement on what is bad is an illusion” (Hart)
• FULLER : just because we cannot get agreement on what is Good, does not mean we cannot agree on what is bad. We may not agree on our aspirations, but we can at least agree on our minimal level of duties.
• For example, Fuller (1963, 11): The moral injunction “thou shalt not kill” implies no picture of the perfect life.
• “In no field of human endeavor is it true that our judgements as to what is undesirable must be secretly directed by some half-perceived utopia”
Step 3• We owe duties in relationships of exchange (relationships based on reciprocity)• Duties (both moral and legal) arise out of relationships of exchange
• E.g. an exchange of promises, exchanging a future act for a present act• Must all exchanges that give rise to duties be explicit?
• A citizen can have a moral duty to vote without a written contract between the citizen and the government
• There are some implicit exchanges that give rise to duties: “What the Golden Rule seeks to convey is not that society is composed of a network of bargains, but that it is held together by a pervasive bond of reciprocity” (Fuller 1963, 20)
• The affinity between duty and exchange is based on relationships of reciprocity. What is reciprocity?
ReciprocityThere are 3 conditions for reciprocal relationships:
1) Relationships of reciprocity must result from a voluntary agreement between the parties involved;2) The reciprocal performances must be equal in value;
– We are not speaking of exact exchange, there is no reason to exchange if there are no differences, we exchange because of difference: “The bond of reciprocity unites men, not simply in spite of their differences, but because of their differences (Fuller 1963, p23)
3) Relationship of duty must be reversible— there must be at least the possibility that the duty you owe me today I may owe you tomorrow.
– “Hayek sees the rule of law itself as dependent on a condition of society such that men may meet today to legislate their duties not knowing tomorrow whether they will owe these duties or be their beneficiaries” (Fuller 1963, p24)
• There exists “a kind of reciprocity between government and the citizen with respect to the observance of rules.” The government says “’These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.”
• Another way to think of it: these are conditions of ‘legality’ (NB: this has been taken up by Int’l Relations theorists)
• “A mere respect for constituted authority must not be confused with fidelity to law. Rex’s subjects, for example, remained faithful to him as king throughout his long and inept reign. They were not faithful to his law, for he never made any.”
Moralities To Make Law (8 Conditions)
For a system of governance to be genuinely legal – that is, to accord with the principle of legality – the rules within that system must meet eight minimal conditions: (Fuller)
(1) Rules must be sufficiently general;(2) Rules must be publicly promulgated;(3) Rules must be prospective (i.e., not retroactive) and applicable only to future behavior;(4) Rules must be at least minimally clear and intelligible;(5) Rules must be free of contradictions;(6) Rules must be relatively constant over time;(7) Rules must be capable of being obeyed; and (8) Rules must be administered in a way consistent with their obvious or apparent meaning.
Do all eight conditions have to be met? In what measure? • A total failure in any one of the eight conditions “results in something that is not properly called a legal
system at all” – There is no moral obligation to obey a legal rule that does not exist , or is kept secret…
• Any system that does not demonstrate substantial adherence to the principle of legality cannot be legal.– systems can be in various levels of compliance with the principle of legality, and argued that such
systems could be regarded as ”partially legal.”– Describes the situation in Nazi Germany as a “drastic deterioration in legality”
• The demands of the inner morality of law are largely aspirational (43). The only exception is making laws known—promulgation– “or at least making them available to those affected by them.” Does this ring true?
– Sometimes some principles have to be sacrificed for the good of others• In the end (93), Fuller gives the classic lawyer’s answer: it depends.
– “the stringency with which the eight desiderata as a whole should be applied, as well as their priority of ranking among themselves, will be affected by the branch of law in question, as well as by the kinds of legal rules that are under consideration.”
Generality of Law• Generality is about making rules. It is not about mandating that law act impersonally or that rules must
apply to general classes. – This has to do with fairness, which “belongs to the external morality of the law” (47)– What does this mean? What is the difference?
• Difference between rules and ‘freedom of action’ (48)—a general system of rules limits particularism, innovation
– Think of the popularity of arbitration. What level of ‘legality’ does arbitration have?
Retrospective Rules
• Here we come closest to a Fuller statement on the concept of law: “Law has to do with the governance of human conduct by rules.” Similarities to Hart? Kelsen?
• When a judge decides on a dispute before her, and holds for one party against another, she inevitably engages in retrospective legislating (56). How can Fuller reconcile this with his theory?
– Plaintiffs expect the decision to apply to their case. Perfect prospectivity is impossible• Contrast retroactively making an act criminal (everyone who drove through flashing green lights this
morning committed and offence) with: Tax law enacted in 2018 imposes tax on financial gains realized in 2015, which at the time were not subject to tax. Is this law retroactive? (59) Fuller says no. Why?
– Fuller: “If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, thewhole body of our law would be ossified forever.” (60) Is this answer satisfying?
Requiring the Impossible• If we hold people accountable for matters for which they are not to blame, then we are holding them
responsible for violating the command, “This must not happen,” which is impossible to obey. • Why? What is the relationship between intent and laws requiring the impossible?
Inner and External Moralities: Do we solve the “natural law” problem by speaking about inner morality of law versus moralities that are external to law?
8 Conditions In Practice
R v KRJ [2016] 1 SCR 906“In 2012, Parliament expanded the scope of s. 161(1), empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age (s. 161(1)(c)) or from using the Internet or other digital network (s. 161(1)(d)).
– [E.g. “rather than being prohibited from using the internet for the purpose of communicating with children, s. 161(1)(d) could be used to prohibit him from using the internet for any purpose.]
• “On March 6, 2013, the appellant pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011, and involved the appellant’s preschool-aged daughter
• “The question arose as to whether the 2012 amendments could operate retrospectively such that they could be imposed on the appellant.
Karakatsanis J. —• I. Introduction
(1) People’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at the time. This is a basic tenet of our legal system.
(2) In recognition of this principle, s. 11(i) of the Canadian Charter of Rights and Freedoms provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”. Like the other legal rights enshrined in s. 11 of the Charter, s. 11(i) is fundamentally important to our justice system because it protects the fairness of criminal proceedings and safeguards the rule of law.
R. v. Ferguson, [2008] 1 SCR 96This case arises out of the fatal shooting of Darren Varley by an RCMP officer… while he was being held in a cell at the RCMP detachment. The RCMP officer who shot Mr. Varley, Michael Esty Ferguson, was charged with second-degree murder but convicted by a jury of the lesser offence of manslaughter. The judge imposed a conditional sentence of two years less a day, notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm ((2004), 39 Alta. L.R. (4th) 166, 2004
ABQB 928 (CanLII)). The majority of the Alberta Court of Appeal overturned that sentence, and held that the mandatory minimum must be imposed ((2006), 65 Alta. L.R. (4th) 44, 2006 ABCA 261 (CanLII)). Constable Ferguson appeals to this Court, contending that a four-year sentence in the circumstances would constitute cruel and unusual punishment contrary to s. 12 of the Charter, and that the trial judge was right to grant him a constitutional exemption from the four-year minimum sentence imposed by Parliament.
• 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
R. v. Fearon 2014 SCC 77“When Mr. Fearon was arrested, Sgt. Hicks conducted a pat-down search incident to the arrest. He found a cell phone in Mr. Fearon’s right front pants pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message referring to jewellery and opening with the words “We did it”. They also found a photo of a handgun and photos of males. Police later recovered a handgun during their search of the getaway vehicle and, at trial, the judge found that it was the handgun used in the robbery and depicted in the photo found on Mr. Fearon’s cell phone: trial judge’s oral reasons. Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.
Joe Arpaio PardonPresident Trump pardoned a fellow fan of wall-building, former Sheriff Joe Arpaio, just weeks after the controversial lawman was convicted of criminal contempt of court for violating a federal judge’s order to stop his Maricopa County, Arizona, deputies from detaining citizens they suspected of being here illegally. ABA President Hilarie Bass said that the president’s broad pardon powers should not be used in a manner that undermines public trust in the justice system. “Pardoning a law enforcement officer who has disobeyed the courts and violated the rights of people he has sworn to protect undercuts judicial authority and the public’s faith in our legal system,” Bass said in a statement immediately after Arpaio’s pardon. But a federal judge ruled the pardon did not vacate his conviction.
Jordan’s Principle“Jordan River Anderson was a First Nations child from Norway Cree House Nation in Manitoba. Born in 1999 with complex medical needs that could not be treated on-reserve, he spent more than two years in a hospital in Winnipeg before doctors agreed that he could leave the hospital to be cared for in a family home. However, because of jurisdictional disputes within and between the federal and provincial governments over who would pay costs for in-home care, Jordan spent over two more years in hospital unnecessarily before he tragically died in 2005. He was 5 years old and had never spent a day in a family home.”
R v Stinchcombe [1991] 3 S.C.R. 326Stinchcombe was a lawyer charged with theft and fraud and one of the Crown's witnesses was a former secretary of Stinchcombe's who gave evidence at the preliminary inquiry that supported the defence's position. A later statement was taken from her by an RCMP officer, however, at trial the defence was denied access to the statement. When the Crown decided not to use the statement the defence made a request for it to the judge who refused to provide it and the accused was eventually convicted.
R. v. Vaillancourt, [1987] 2 SCR 636During an armed robbery in a pool hall, appellant's accomplice shot and killed a client. The accomplice managed to escape but appellant was arrested and convicted of second degree murder as a party to the offence pursuant to ss. 21(2) and 213(d) of the Criminal Code. Section 213(d) provides that "Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit ... robbery ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if ... he uses a weapon or has it upon his person during or at the time he commits or attempts to commit the offence ... and the death ensues as a consequence." At his trial before judge and jury, appellant
testified that at the time of the robbery, he was certain that the gun in possession of the accomplice was not loaded. He stated that they had agreed to commit the robbery armed only with knives and when, on the night of the crime, the accomplice arrived with a gun he insisted that it be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. Appellant's glove containing the three bullets was recovered by the police at the scene of the crime. The Court of Appeal dismissed appellant's appeal from conviction. In this Court, he challenged the constitutional validity of s. 213(d) of the Criminal Code. This appeal raises two constitutional questions: (1) Is section 213(d) of the Code inconsistent with either ss. 7 or 11(d) of the Charter and, therefore, of no force or effect?
Fuller On Separation Thesis
• “The existence of law is one thing; it’s merit or demerit another.” It does not follow from the mere fact that a rule violates standards of ethics or morality that it is not a valid rule of law.
• The existence of law is a social fact which we can observe in the actions of officials and persons close to the legal system.
• A strong ‘separatist’ might say that the validity of a law cannot “be disproved by showing that its requirements [are] morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience.”
• Concern (Bentham) about society devolving into anarchy. What happens if everyone says, "This ought not to be the law, therefore it is not and I am free not merely to censure but to disregard it.“
• Concern: how united are we in our conception of aims? Hart: “it seems to me that above this minimum [basic survival] the purposes [people] have for living in society are too conflicting and varying…”
From Proponents of Natural Law• There is an essential connection between law and morals. • All valid laws derive their force from being morally just. • No human law which conflicts with natural (just) law is obligatory or binding.• Law must have some minimum moral content. It may be the case that not every rule of law has to satisfy
a moral minimum in order to be a law, but "a system of rules which altogether fails to do this [cannot] be [classified as] a legal system.“
• A strong ‘naturalist’ might believe that “fundamental principles of humanitarian morality [are] part of the very concept of Legality so that no positive enactment or statute, however clearly it… express[es] and however clearly it conform[s] with the formal criteria of validity of a given legal system, [can] be valid if it contravene[s] basic principles of morality.”
Fuller’s Take• There exists “a kind of reciprocity between government and the citizen with respect to the observance of
rules.” The government says “’These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.”
• For a system of governance to be genuinely legal – that is, to accord with the principle of legality – the rules within that system must meet eight minimal conditions:
1. Rules must be sufficiently general;2. Rules must be publicly promulgated;3. Rules must be prospective (i.e., not retroactive) and applicable only to future behavior;4. Rules must be at least minimally clear and intelligible;5. Rules must be free of contradictions;6. Rules must be relatively constant over time;7. Rules must be capable of being obeyed; and 8. Rules must be administered in a way consistent with their obvious or apparent meaning.
Week 6 – Indigenous Legal Studies
Truth and ReconciliationBetween 1967 and 1995, provincial and federal levels of government sponsored more than thirty justice studies regarding the causes and effects of systemic discrimination against Aboriginal people (Dara Culhane, Justice and Healing: Aboriginal Peoples in Canada, 6 J. HUM. JUST. 140, 151 (1995)). For example, the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta assigned former Chief Judge of the Provincial Court, Justice Allan Cawsey, a mandate to review of the criminal justice system in Alberta.
Commissions and task forces examined feelings of alienation, as well as the disproportionate representation of Aboriginal offenders in provincial and federal prisons. For example, RCAP’s comprehensive report found that, in Saskatchewan, a treaty Indian boy of sixteen had a 70 percent chance of serving a prison term by the age of twenty-five, while a non-Native Saskatchewan boy only had an 8 percent chance.
The National Round Table on Aboriginal Justice Issues was held in Ottawa on November 25-27, 1992 and brought together more than 100 invited guests including national leaders of the Assembly of First Nations, the Inuit Tapirisat of Canada, the Native Council of Canada, the Native Women’s Association of Canada, and the Métis National Council. James C. MacPherson, then Dean of Osgoode Hall Law School, sat as rapporteur.Aboriginal Peoples and the Justice System, the Report of the National Round Table on Aboriginal Justice Issues is available at http://publications.gc.ca/collections/collection_2017/bcp-pco/Z1-1991-1-11-2-eng.pdf
Call to Action #27: “We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate
cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal – Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”
Intersecting Worldviews
Val Napoleon, Associate professor, Law Foundation Professor of Aboriginal Justice and GovernanceThe title of my research chair is Law Foundation Professor of Aboriginal Justice and Governance. I am from northeast British Columbia (Treaty 8) and a member of Saulteau First Nation. I am also an adopted member of the Gitanyow (Gitksan) House of Luuxhon, Ganada (Frog) Clan. Prior to joining the Faculty of Law at UVic om 2012, I was cross-appointed with the faculties of Native Studies and Law at the University of Alberta.
• Val Napoleon: Understanding the connection between worldviews and law– “Since our legal orders and law are entirely created within our – s, it is difficult to see and understand law in other cultures.” (3) – “all law, including western law, is founded on a world view (i.e., how we see human beings, non-
human life forms, and the spirits and the universe”)– All law is based on our understanding of humans and their connection to the larger world
• What are worldviews? Worldviews are the “interpretive filters inherent in cognition (how we perceive and understand life and particular events).” Mark Davidheiser, “Race, Worldviews, and Conflict Mediation: Black and white styles of Conflict Revisited,” Peace & Change 33 (2008): 67.
“If culture is an iceberg, above the surface of the water are visible cultural artefacts like architecture or music. Just below the surface lay consciously held values or principles. It is extremely deep below the surface where
underlying assumptions and worldviews—the source of values and actions—are hidden.” David C. Thomas, Cross-cultural Management: Essential Concepts, 2nd ed. (Los Angeles: Sage Publications, 2008), 30
• TIME: Sequential time is rigid and exact. There is a separation of past, present and future into distinct periods, with a major focus on the present and short term. In synchronous-time cultures, time is “cyclical, episodic, and circular.” It may be seen to stretch “far beyond the human ego or lifetime.”
• POWER: High and low power distance relate to “the extent to which power differences are accepted and sanctioned in a society” or the “degree to which members of a collective expect power to be distributed equally”
• COMMUNICATION: high context communication in which meaning is taken from behaviour and nonverbal communication, and low context communication which is more direct.
What is Law? According to Napoleon:• Law “enables large groups of people to manage themselves.” • Law is a collaborative process, “something that groups of people do together.” • Process: Law is an intellectual process “of deliberating and reasoning to apply rules according to the
context” • Interaction: law is a “‘language of interaction’ that is necessary for people’s social behaviour to be
meaningful and predictable [sic]” (8)
Law From Central Processes of Enactment
Law From Social Interaction Law From the Divine or From Within Human Beings
Known as Posited Law (Legal Positivism)
Known as Customary Law Known as Natural Law
Law comes from a central authority through a formal process.(E.g., Canadian Constitutions, Indian Act, etc.)
Law comes from the interaction between human beings that enables people to generally predict behaviours in a group.(E.g., Resource management law of decentralized peoples)
Law comes from a divine authority or from basic human nature characteristics.8(E.g., Ecclesiastical law, etc.)
Customary Law Legal Authority• “Law is never static, but rather lives in each new
context.” And it has to change in order to maintain authority
• What is the goal of customary law? What was the example storing the sweet grass?
• What is the process for identifying customary law? Regarding the boundary overlap with Treaty 8 lands: “how did people manage the overlap area in the past? What were the trade and intermarriage arrangements? How might these former conflicts and arrangements inform today’s dispute?” (10)
• People have to believe that law is legitimate; if people don’t uphold the law, the resulting orders have no meaning
• Problem for Indigenous legal authority when Indigenous laws have been broken with no consequences, “When laws are broken with no recourse, the legal order begins to break down” (10)
Gitksan Law (Napoleon):• Much Indigenous law is implicit • Major agreements affirmed in Feast hall and witness in formal public process
• Example: Cree doctrine of wâhkôhtwowin reciprocal responsibilities and obligations founded in the status of relationships
Canada’s Indigenous Constitution
John BurrowsJohn Borrows is from Anishinaabe from the Chippewas of the Nawash First Nation on the shores of Georgian Bay in Ontario. He received his PhD from Osgoode Hall Law School. He is the Canada Research Chair in Indigenous Law in the Faculty of Law at the University of Victoria and is the winner of both the Canadian Political Science Association's Donald Smiley Prize (for Recovering Canada ) and the Canadian Law and Society Association Book Prize (for Canada's Indigenous Constitution).
Canada’s Indigenous ConstitutionOne of the main arguments made by Professor Borrows in Canada’s Indigenous Constitution is that many negative stereotypes of Indigenous law can be overcome these if we understand these laws and legal systems in greater detail, and recognize that they are sophisticated and diverse:
• At p. 24 he writes: “There are many negative stereotypes in circulation regarding Indigenous law. Recognition can be enhanced if Indigenous laws are understood in greater detail, free from misleading characterizations. For example, Indigenous peoples are diverse and their laws flow from many sources. Understanding their communities' legal foundations can lead to a better appreciation of with the social, historical, political, biological, economic, and spiritual circumstances of each group.” (page 24)
Sources of Indigenous LawAccording to Professor Borrows, the sources of Indigenous law include:
(1) Sacred Law – based spiritual principles / higher law (the Creator) (2) Natural law – laws based on observation of the physical world (The environment)(3) Deliberative law – law developed through processes of persuasion, deliberation, council and discussion
(the community) (4) Positivistic law – proclamations, rules, regulations, codes, teachings (authority figures) (5) Custom – social practices developed through interaction – unspoken agreements which might guide
action / interpretation of other laws.
The ability of s. 2 (a) to “protect” Anishinabek beliefs?• “Not many post-Reformation religious adherents or legal practitioners talk to the Earth, study her
character, and expect to receive responses by observing her behaviour. The fact that Anishinabek religion and law treat the Earth as a living being with the power of choice, requiring respect for its autonomy, privacy, and personal convictions, might seem to fit within a liberal framework. Liberalism strives to protect these central values. However, the notion that the Earth is the individual possessing these characteristics probably propels Canadian constitutional law beyond its informing commitments.” (p. 249)
• What was the religious practice at issue in the Jack and Charlie case? (p. 251) How does the example highlight the Coast Salish practices, and the problems of having to bring spiritual beliefs before the Court?
• How does Professor Borrows describe the conflict between religious beliefs and private property interests? (p. 256) How do non-Aboriginal legal forms, such as the “underlying land allocation scheme”, amplify the risk to religious freedom?
• In what sense is “Canada’s constitutional tradition … constructed as culturally non-native” and “legally ‘neutral’”?
• How might the proportionality consideration in section 1 be used for restorative or redistributive efforts? • Why, according to Professor Borrows, is section 35(1) “securely tied to its non-Aboriginal foundations”?
• Professor Burrows writes that “Indigenous legal traditions are almost invisible in the current way problems are addressed under section 35(1).” (p. 261) How might section 35(1) be indigenized?
• What would be the process of protecting an Anishinabek religious practice under section 35(1)? What is the problem of the “integral to the distinctive culture” test in relation to religious rights? How does the Supreme Court’s test both distort Indigenous spirituality and Indigenous legal development?
Reviewing Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) [2017] 2 SCR 386
“The case arose after the British Columbia Minister of Forests, Land and Natural Resource Operations (the Minister) approved the development of a year-round ski resort within the Jumbo Valley, which makes up part of the traditional territory of the claimant Ktunaxa Nation.The claimants subsequently applied for judicial review, claiming that the Minister’s decision violated their section 2(a) Charter right to freedom of religion and their Aboriginal rights under section 35 of the Constitution Act, 1982. With regard to their Charter challenge, the Ktunaxa Nation claimed that the development would lead to an erosion of the local grizzly bear population and drive away Grizzly Bear Spirit, the focal point of Ktunaxa spirituality in the Jumbo Valley.” specifically, that any overnight human accommodation would irreparably damage their relationship with the Grizzly Bear Spirit.
• [59] The Ktunaxa assert that the project, and in particular permanent overnight accommodation, will drive Grizzly Bear Spirit from Qat’muk. As Grizzly Bear Spirit is central to Ktunaxa religious beliefs and practices, its departure, they say, would remove the basis of their beliefs and render their practices futile. The Ktunaxa argue that the vitality of their religious community depends on maintaining the presence of Grizzly Bear Spirit in Qat’muk. …
• [62] The seminal case on the scope of the Charter guarantee of freedom of religion is this Court’s decision in Big M Drug Mart. The majority of the Court, per Justice Dickson (as he then was), defined s. 2(a) as protecting “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” (p. 336).
• [68] To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief: see Multani, at para. 34.
• [69] In this case, it is undisputed that the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat’muk will drive this spirit from that place. …
• [70] The second part of the test, however, is not met in this case. This stage of the analysis requires an objective analysis of the interference caused by the impugned state action: S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 24. The Ktunaxa must show that the Minister’s decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. But the Minister’s decision does neither of those things. This case is not concerned with either the freedom to hold a religious belief or to manifest that belief. The claim is rather that s. 2 (a) of the Charter protects the presence of Grizzly Bear Spirit in Qat’muk. This is a novel claim and invites this Court to extend s. 2 (a) beyond the scope recognized in our law.
• [71] We would decline this invitation. The state’s duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship. We have been directed to no authority that supports the proposition that s. 2 (a) protects the latter, rather than individuals’ liberty to hold a belief and to manifest that belief.
Week 7 – Joseph Raz, Authority of Law
Bix p49-62 and Chapter 16Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
Practical Reasoning (Order of Reasons)Joseph RazMagister Juris, Hebrew University, 1963. D. Phil., University of Oxford, 1967 (under the supervision of HLA Hart). Started as a lecturer at Hebrew University. Also taught at Oxford. Now a Professor at Columbia University, and part time professor at Kings College. We are reading from Ch. 9 in Ethics in the Public Domain, published in 1994.
2a. What is the main issue that Raz is concerned about?• What is the authority of law? Why must we obey the law? • When should we accept the authority of the political system (and why)?• Is a rule a rule of law because it is morally binding? Can a rule ever fail to be legal binding on the ground
that it is morally unacceptable?
1) Raz’s Sources Thesis: • all law is source based (reference to social facts, no evaluative argument)• = Exclusive legal positivism
2) Incorporation Thesis:• Moral/ethical judgments can be incorporated into the law (all law is source based or entailed by source-
based law) • = Inclusive legal positivism
3) Coherence Thesis: • There is a necessary coherence between sources of law and the morally soundest justification • = Natural law
Regarding other sourced based theories: e.g. Austin: • command backed by threat of punishment; the sanction-based approach – gives us prudential reasons for
action (it is prudent to follow the rules so that we don’t get punished)• But what happens if you live in a world only populated by rational angels? • We can imagine a legal system where there are no sanctions, where just have directives and dispute
resolutionProblems with Coherence Theories: does not accord with our experience
• Many believe that the law of their country, though not perfect, ought to be respected. It provides reasonable constitutional means for its own development. where reform is called for, it should be accomplished by legal means. While the law is in force, it should be respected.
2b. On the nature of authority. Where does authority come from? What are some justifications for authority? Imagine that Parliament legislates a no spanking rule. Parents are :. not allow to spank their children.*
You follow this law because…? o Dependence thesis: authoritative directives are dependent on reasons which apply to the subject
of those reasons; authority in this case is ‘justified’.o Normal Justification: I am likely to be better off complying with the directives of the authority
than if I try to follow the reasons which apply to me directly o Pre-emptive: because the authority said so, not relative to or dependent on the reasons but
replaces them
Connection between Theses• In the arbitration example, once the arbiter decides, the reasons to follow/obey the decision become pre-
emptive; they are no longer dependent reasons. What does this mean? How does this work? • Are the arbiter’s reasons “absolute reasons” (meaning that you always have to obey the decision)? Why
or why not? • Dependent and pre-emptive reasons are “intimately connected”. What does this mean?
What is Raz’s service conception of authority? • Authorities mediate between people and right reasons which apply to them• Authorities’ directives replace the dependent reasons
NB: Is there a difference between adjudicative and legislative authority? Raz says no. Why?• Law claims authority and replaces individuals having to think on the balance of reasons. Raz’s claim that
this does not conflict with autonomy, e.g. that there are rational reasons to give up having to think on the balance of reasons seems to be somewhat functional. As society becomes more complex, there is more pressure to find systems or institutions that will mediate between people and the reasons which apply to them; there is a sociological need to have an authority to stand in for dependent reasons (Raz’s service conception).
– Authorities mediate b/w people & right reasons which apply to them– Authorities’ directives replace the dependent reasons
2c. What are reasons? Raz says there are two types of reasons:
First Order Reasons Second Order Reasons • A reason for action, i.e. a reason for performing or
refraining from a certain act. • Example: I bake cookies after assessing the pros
and cons. – I might bake cookies because it will be a
relaxing break and they will taste good. – Or, I might refrain from baking cookies
because they will take time and I need to prepare my lecture on Raz.
• A reason to act for a reason or to refrain from acting for a reason.
• Example: Ann, tired after a long and stressful day, has reason not to act on her best assessment of reasons bearing on an important investment decision that she faces.
• An exclusionary reason is a negative second-order reason, i.e., a reason to refrain from acting for some reason.
– being tired is a reason not to bake cookies because it might lead me to make mistakes and burn things
• 2nd order reason: is any reason to act or to refrain from acting for a reason. • Exclusionary reasons: exclude other reasons from playing their normal role in determining what ought to
be done. Excluding a reason is a way of defeating it. – OTHER ways that one reason can defeat another: one reason can be stronger than another. For
example: My own safety might be a stronger reason for me than a promise. I don’t engage in some dangerous activity even though my promise to join in;
– A reason can be defeated by some consideration, which itself need not be a reason for or against doing anything, by being cancelled or undermined. For example: Although I have promised the robber not to call the police, the special circumstances in which I have made the promise render it void.
– Example: you don’t follow the arbitration order in the case where the arbiter was bribed or incapacitated while making the order.
Raz’s Example:
• ‘While serving in the army Jane is ordered by her commanding officer to appropriate and use a van belonging to a certain tradesman. She has reason to appropriate the van. Her friend urges her to disobey the order pointing to weighty reasons for doing so. Jane does not deny that her friend may have a case. But, it does not matter whether the friend is right or not. Orders are orders and should be obeyed even if wrong, even if no harm will come from disobeying them. That is what it means to be a subordinate’ (Raz 1990, 38).
• The order is an exclusionary reason; it excludes the reasons, which would make it wrong to appropriate the van.
Arbitration, Judicial Decisions, Legislation Express: what people should do in a situation, how parties ought to behave They are reasons for action, replace the reasons on which they depends, and are also exclusionary reasons This is what Raz ultimately wants to prove: the fact that something is a law is a reason to obey and a
reason not to do something in contravention of the law The core tenet of Raz’s theory is that rules are both first order reasons and exclusionary reasons—that is
they are reasons themselves AND they trump other reasons
Conditions For Authority
(1) The persons/institution making the directive has to have the ability to issue directives; e.g. it has to be capable of having authority What is the difference between not having legitimate authority and being incapable of having
authority? (2) It has a mediating authority:
a directive can be authoritatively binding only if presented as someone's view of how its subjects ought to behave;
it must represent the judgement of the alleged authority on the reasons which apply to its subject; If Trudeau's aides told Minister Wilson-Raybould, while attorney general, to intervene in the
prosecution of SNC-Lavalin, was this an authoritative directive? (3) It does not rely on reasons:
it must be possible to identify the directive as being issued by an alleged authority without relying on reasons
An (inverse) example: two parties go to arbitration; the arbitrator makes the correct decision. The parties are only told this—that the arbitrator made the correct decision. Do the parties know how to act? Why not?
Raz says that we benefit from authority only if we can establish the existence of directives in ways that do not depend on the reasons for their existence (if we knew the correct result of the arbitration we wouldn’t have to resort to arbitration)
Sources of Law
Source Thesis: All law is source based. Reference to social facts alone (exclusive legal positivism)Incorporation Thesis: Sourced based + the standards recognized as binding by source-based law (inclusive legal positivism)
• Coherence Thesis: sourced based law + the morally soundest justification (natural law)Coherence theory is wrong because it ignores the mediating authority of law
• Review the service conception of authority—we put authority in place because of the service it provides • Many believe that the law of their country, though not perfect, ought to be respected. It provides
reasonable constitutional means for its own development. where reform is called for, it should be accomplished by legal means. While the law is in force, it should be respected.
• Why is the incorporation thesis wrong? What might Raz say?
Stanford Prison Experiment In an effort to make a case for exclusive legal positivism, Raz argues that law is necessarily and only
source based because directives are only meaningful if they can replace dependent reasons for action. We benefit from authority because we can establish the existence of directives without resorting to their dependent reasons. What does this mean?
What are the dangers of continuedr eliance on authority absent dependent reasons? Is there difference between a one-off isolated authoritative directive and a system of authority?
What does the Stanford Prison Experiment tell us about potential behavioural effects when authority is organized and coordinated? Does the Stanford Prison Experiment prove or disprove Raz’s theory?
In the official site for the Stanford Prison Experiment, one of the discussion points reads: “Most prisoners believed that the subjects selected to be guards were chosen because they were bigger than those who were made prisoners, but actually, there was no difference in the average height of the two groups.”
Week 8 – How Do Judges Decide? (Part 1)
Bix Chapter 17Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
The Path of Law (Holmes)Oliver Wendell HolmesBorn in Boston. Fouuht in the US Civil War. Attended Harvard Law School in 1864. Became a judge in 1883. In 1902, Holmes was appointed to US Supreme Court by President Roosevelt. He sat on the bench from 1902-1931 (retired at the age of 91), apparently earning the nickname “The Great Dissenter” for opposing a mostly conservative court during the early 20th century.
Sociological JurisprudenceInside Law:Legal influences on SJ
Outside law:Non-Legal influences on SJ
Early 20th century saw a mostly conservative Pragmatism: philosophical tradition that originated
Supreme Court in the U.S. The zenith of conservatism can be seen in Lochner v. New York, 198 U.S. 45 (1905), where a 60hr work week limit in the Bakeshop Act was struck down by court on the basis that legislation violated US Fourteenth Amendment (same amendment supported Roe v. Wade, Brown v. Board of Education and Obergefell v. Hodges). This period became known as the “Lochner Era”.
around 1870. John Dewey (1859– 1952) influential in legal circles, wrote, the “Logical Method and the Law” in 1924 Pragmatist Maxim: “Consider what effects, which might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of those effects is the whole of our conception of the object.” Charles Pierce. In other words: we clarify a hypothesis by identifying its practical consequences.
The “bad man theory”Some now famous quotes from this article (at p.993) • “Butifwetaketheviewofourfriendthebadmanweshallfindthathedoesnotcare two straws for the axioms or
deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact.” • “If you want to know the law and nothing else, you must look at it as a badman, who cares only for the
material consequences which such knowledge enables him to predict...” • People tend to leave out the rest of that sentence, which reads: “not as a good [person], who finds his reasons
for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” • So,in the first half of the article(until roughly page 997),what is Holmes arguing against? What are the limits
of law?
What are the limits of the law? • “What I am trying to do now is only by a series of hints to throw some light on the narrow path of
legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it.” (997) – In sum, law and morality are separate because the bad man does not care about anything but
what is decided by the courts: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
– The bad man wants to know what the courts will do in either a criminal or civil case so that he knows whether or how much he will be fined or whether he will have to go to jail.
• Holmes: the best example of confusion of law and morality in the area of Contracts, e.g. – Bromage v. Genning (p995): English case for specific performance, proceedings in Welsh court
to compel Genning to execute the lease as promised; prohibition against the proceedings was sought in court of Kings Bench, Lord Coke wrote that forcing Genning to execute the contract would go against the idea of contracts which allows a person to choose between executing or paying damages
– “here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained.”
• “The fallacy to which I refer is the notion that the only force at work in the development of the law is logic.”
• “The danger of which I speak is... the notion that a given system...can be worked out like mathematics from some general axioms of conduct.”
Classical Legal Thought and Legal Formalism
Classical Legal Thought: law is “systematic, logical, objective, neutral, and professional” Law is gapless, knowable and discoverable Legal formalism utilizes “the method of deduction from predetermined conceptions” (Roscoe Pound,
610)
Law is a set of abstract principles, a self-justifying body of precepts that can be deduced or discovered through formal logical methods
Legal reasoning consists of logical techniques of induction and deduction; – E.g.: “Courts must reconstruct the past solution imaginatively in its setting and project the
purposes which inspired it upon the concrete occasions which arise for their decision.” (Learned Hand 1953)
– “for every possible case which may arise, there is a fixed antecedent rule already at hand; that the case in question is either simple and unambiguous, or is resolvable by direct inspection into a collection of simple and indubitable [sic] facts.” (Dewey 1924, 22)
Formalism: argument presented as if the conclusion followed simply from undeniable premises. a. Once the proper label was found for an object (contract, property, trespass, etc), the legal
conclusion could soon be drawn. b. This notion that decisions can be deduced from general concepts or rules is called mechanical
jurisprudence.c. Eg. Sugar Trusts Case, found that congress could not interfere with interstate trade despite fact
that company had control of 98% of sugar refining capacity of the US and had real consequences, i. but these facts were treated as irrelevant or subversive of the proper legal analysis
d. Christopher Columbus Langdelle: principles and doctrines of the science of law could be discovered in cases (completed contained in printed books),
i. like how biologists discover the principles of their science in their laboratories. ii. "Science of law involved the search for a system of general, logically consistent
principles built from the studies of particular instances."iii. This was an attempt to derive the law from basic axioms and logical deduction, and real
world consequences and moral evaluations were excluded from this process.
How does legal formalism operate at court? • Judges apply pre-existing law to facts presented during the trial. Formal legal rules give judges the
methods to find a law that was out there: – “judges almost scientifically apply analogical reasoning to the Constitution, prior precedents, or
statutes to find the proper resolution of a case” (Cross 1997) • Any Max Weber fans out there? Weber (early 20th century sociologist) describes formally rational legal
systems as having 5 characteristics: 1. every concrete legal decision should be the ‘application’ of an abstract legal proposition to a concrete
‘fact situation’; [think L x F = D] 2. it must be possible in every case to derive the decision from abstract legal propositions by means of legal
logic; 3. the law must actually or virtually constitute a ‘gapless’ system of legal propositions...; 4. whatever cannot be ‘construed’ rationally in legal terms is also legally irrelevant; and 5. every social action of human beings must always be visualized as either an ‘application’ or ‘execution’ of
legal propositions (Weber 1926, 64).
What’s the problem with legal formalism? “This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State, it is valid although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: is it within the police power of the State?” “Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. ... Clean and
wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.” Lochner v. New York, 198 U.S. 45 (1905) (5-4 decision, Holmes dissenting)
Legal Realism Origins:
Themes stemmed from Oliver Wendell Holmes Jr: The Common Law (1881)o The life of the law has not been logic; it has been experience.
The necessities of time, prevalent moral and political theories, intuitions of the public policy, and prejudices which judges share with citizens
Roscoe Pound, advocate of Sociological Jurisprudence:o Difference between "law in books" and "law in action"
Purpose: It is a prediction theory that aims to shake up the formalistic approach used for discussing law. o Realists want to know how the law appears on the ground to citizens for whom the law means
only a prediction of the results Law should be defined as a prediction of how the courts behave.
o By undermining confidence in the science of law, there is a need for a new justification of legal rules and judicial actions.
Definitions:
Law is an inherently subjective system, in which results are determined as much (if not more) by political, social, and moral considerations.
Legal Realism means being realistic about what Law is and what it is doing: a “fidelity to nature [and] accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be” (Llewellyn 1931, 1224).
A Realistic View Of The Lawo Holmes: To the bad man, they just want to know what the court will likely do in fact. Which
actions will result in what consequences and everything else is superfluous. To the good man, they find reasons for conduct, whether inside the law or outside of it. What is the difference between this bad man knowing his actions will be punished with a
fine and being taxed a certain sum for doing a certain thing? A formalistic approach to the law in the eye of the bad man may not see a difference between the right and wrong of the actions, but there must exist some additional disadvantages to doing something not legally permitted.
Theft could have been committed by the person either handing the thief the good or by the thief taking it.
Statute makes embezzlement a crime due to the force or tradition. Judicial decision making is:
o Fact-centered. o Often based on personal or political biases and construed from hunches.o Public policy and social science should play larger role.
Beneath the veneer of scientific and deductive reasoning:o Legal rules are often indeterminate within legal reasoning
Realism attacks Formalism on 2 (actually 3) grounds:
a. Common law concepts and standards are not neutral or objectivei. Premise used by lawyers are often open to question and hid moral and policy assumptions
ii. Palsgraf v Long Island Railroad:
1. Majority opinion is more formalistic because they found that the train conductor owed no duty to the passenger who was injured, only to the one that carried the package.
2. Dissent by Judge Andrews is more realistic: the determination of what is "proximate cause" was made based on convenience, public policy, and a rough sense of justice which prevents it from being extended beyond a certain point. This is not logic, it's practical politics.
b. General legal concepts or rules could not determine the results in particular casesi. Holmes: "General propositions do not decide concrete cases"
1. There is always some sort of logical gap between the proposition or statute and the result of particular cases
ii. Jerome Frank (radical position): legal phrases and concepts alone do not get us to a decision. Final decision usually based on unstated premises regarding public policy or unstated biases or prejudices.
c. Even if the law is known and it is sufficient to decide the case, it may be that law should be changed
i. The scientific pretension of legal science created an opening for moral criticism and ii. that legislative or judicial reform of the law might be morally and legal legitimate
iii. Holmes : It's revolting to have no better reason for a law than the fact that it was laid down, especially if the grounds upon which it was laid have vanished and the rule simply persists from blind imitation of the past.
d. Realism as a result: Legal concepts should be taught in a way which demystified them, and that legal issues
should be shown to be often underdetermined by legal rules alone, with policy arguments appropriate and necessary for resolution.
Realism and Courts:
Jerome Frank: Judges are human:o They follow their instincts, making sham references to rules of lawo Generally they are unaware of what they are doing and persist in believing they are being
obedient to precedent.1. Judicial reasons were strongly underdetermined by legal rules, concepts and precedent2. Judges were highly responsive to the facts and the way they are presented in reaching their decisions Karl Llewellyn (Helped write uniform commercial code): Argued for greater congruence between legal
rules and socialo If business people see themselves as bound under a contract, the law should treat them as bound.
Difference between general principles do not determine results and general principles cannot determine results.
Brandeis Brief: The issue with existing law was that it was out of touch with that reality. Felix Cohen:
Legal concepts don't have verifiable existence and can't be refuted. Tauza v Susquehanna Coal Company: Court decided without considering any scientific or factual
inquiries into the practice of modern corporations. Court simply decides that if the company has come into new work then it is possible to sue them.
o Why it's essential or how it is possible is not explained.o Differentiated from Dodge Bros Motor Corporation since corporation (not including NY
employees and dealers) is not in New York.
o In America v Whitney Central National Bank, company incorporated in Louisiana did not own desks in NY, but president was served there and has financial transactions in NY. -> SC said that it was not a NY business.
Cohen says this is transcendental nonsense Hart's Criticism:H. L. A. Hart criticized the theories in his The Concept of Law (1961). He argued that
1. (1) they were blind to the internal point of view towards law, the sense shared by officials and law-abiding citizens that rules of law `ought' to be obeyed, and
2. (2) they undervalue "the ways in which the law is used to control, to guide, and to plan life out of court."3. As for the `bad man', Hart asks, "Why should not law be equally if not more concerned with the `puzzled
man' or `ignorant man' who is willing to do what is required, if only he can be told what it is? Or with the `man who wishes to arrange his affairs' if only he can be told how to do it?"
Max Weber:
1. Every concrete legal decision should be the application of an abstract legal proposition to a concrete fact situation.
2. It must be possible in every case to derive the decision from abstract legal propositions by means of legal logic.
3. The law must actually or virtually constitute a 'gapless' system of legal propositions.4. Whatever cannot be construed rationally in legal terms is also legally irrelevant; and5. Every social action of human beings must always be visualized as either an 'application' or 6. Execution' of legal propositions.
Critique of Legal RealismBix writes that the attack on legal formalism can be divided into two main critiques:
1) common law concepts and standards are not neutral and objective recall Holmes’ discussion of history Labels and categories hid moral and policy assumptions
2) the results in particular cases are not derived from general rules Law is simply an instrument that is used by judges to justify conclusions based on their own
personal views or convictions about a case How a judges decides a case will depend in large part on their political, cultural, and religious
convictions, as well as their personality and psychological characteristics.
Critique #1: Common Law Concepts And Standards Are Not Neutral And Objective – (a) Labels and categories hid moral and policy assumptions
• Example in Bix: Palsgraf v. Long Island Railroad and “proximate cause”. What was the issue? What were the “practical politics” embedded in the court’s decision on proximate cause?
– Judge Andrews, “What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”
• HALE:“In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned.”
– From Elgar Companion to Law and Economics: "Much of Hale's writing developed and expanded upon the theme that virtually all legal transactions, including those involving individuals, corporate bodies or the state, constitute and channel compulsion or coercion and
thereby reinforce the economic bargaining power of one party vis-a-vis another throughout the government and the economy"
– In what way is Robert Hale a Legal Realist? – “Important interests are affected by the shape that these arrangements shall take. It is difficult to
measure the interests, and even if they could be measured, there are no simple rules for determining how conflicts between them should be settled. The ‘principles of justice’ supposed to govern courts do not suffice.” Hale’s writings have been used to support Feminist Legal Theory. Hint: how does law treat the “public” and “private” spheres differently?
Legal Realism Critique #2 (Bix 203)Bix writes that the attack on legal formalism can be divided into two main critiques:
• 1) common law concepts and standards are not neutral and objective • 2) the results in particular cases are not derived from general rules (aka, How do judges decide?)
– 2a) General principles in fact do not determine the results in particular cases; and/or
– 2b) One cannot derive the correct result by deductive method from general principles
Legal Realism Critique #2a—General Principles Do Not Determine Results in a Particular Case• What is Cohen’s concern? What is the standard way of thinking that Cohen is arguing against? • Cohen accused judges of “hiding” behind the “language of law”. He argued that formal legal language—
the concepts and abstractions upon which judges relied—consisted of “fictions and metaphors” that were not themselves reasons for decisions, but were rather “poetical or mnemonic devices for formulating decisions reached on other grounds.” (Cohen 1935, 812)
– “[I]n every field of law we should find the same habit of ignoring practical questions of value or of positive fact and taking refuge in "legal problems" which can always be answered by manipulating legal concepts in certain approved ways. In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.” (Cohen 1935, 820)
• Cohen’s example of “fictions and metaphors” in law: “when a corporation incorporated in another State should be subject to suit” What is Cohen’s concern with how the Court of Appeals approaches this question?
• “Clearly the question of where a corporation is … is not a question that can be answered by empirical observation…. It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, "How many angels can stand on the point of a needle?" …. the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem.”
Legal Realism Critique #2b—Principles Cannot Be Predictive of Results• What is Frank concerned about? What is the standard way of thinking or describing law that he is arguing
against? – D = F x R
• What does Frank argue? Why can’t judges derive the correct result by deductive method from general principles?
– But "the facts" of cases cannot be ignored... The “finding of facts” in a contested case is an inherently subjective exercise. What makes a case contested?
– “His fact premise is nothing more and nothing less than what he thinks the facts are”– “The failure to recognize the composite nature of this hunch and the artificial breaking up of the
decisional process into "rules" and "facts" accounts in part for the delusion of the formalist as to the exclusive value of the "rules."
• How does a focus on Facts make Frank a Legal Realist? • Apparently, Frank is credited for the famous line that Justice is what the judge ate for breakfast. More
accurately, he wrote (in Courts on Trial): – “Out of my own experience as a trial lawyer, I can testify that a trial judge, because of overeating
at lunch, may be somnolent in the afternoon court-session that he fails to hear an important item of testimony and so disregards it when deciding the case. ‘The hungry judges soon the sentence sign, And wretches hang that juryman may dine,’ wrote Pope. Dickens’ lovers well remember Perker’s advice to Pickwick: ‘A good, contented, well-breakfasted juryman, is a capital thing to get hold of. Discontented or hungry jurymen, my dear sir, always find for the plaintiff.’”
Legal Realism Critique #3 (Bix 203)• What does Jerome Frank argue? Why can’t judges derive the correct result by deductive method from
general principles?– But "the facts" of cases cannot be ignored... The “finding of facts” in a contested case is an
inherently subjective exercise. “His fact premise is nothing more and nothing less than what he thinks the facts are”
– “The failure to recognize the composite nature of this hunch and the artificial breaking up of the decisional process into "rules" and "facts" accounts in part for the delusion of the formalist as to the exclusive value of the "rules."
Week 9 – How Do Judges Decide? (Part 2)
Bix Chapter 7Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
Hard Cases (Dworkin)
Timeline on How Judges Decide
Dworkin articulates the two problems that are raised by the legal realist account of how judges decide. What are they?
1) Judges’ decisions are based on policy preferences and not law2) If judges make law, that is anti-democratic (this is new) (also relates to the judicialization or legalization
of politics critique)
Dworkin’s Description of the Critical View of the Judicial Process• Realist: Judges decide according to the law until the law runs out. At that point, judges switch and decide
according to their policy preferences. • How does Dworkin counter this argument? Why, according to Dworkin, does this not capture about how
judges decide in hard cases? • What is the difference between policy and principles according to Dworkin? Why does this matter? • On the other hand, is this what the
legal realists really said?
Institutional Right• What are institutional rights? What are institutional constraints? • What is the difference between a fully and partly autonomous institution? • How does an official’s “institutional duty” insulate her from “background political morality”? (1079) • What is the specific case of legal rights as part of the institution of law? How does this effect how judges
decide?
Dworkin’s Questions• What is the interpretive approach? • Who, then, is the judge, and what is required of her?• What is the “gravitational force” of precedent? How does it work? • What is the weakness of the interpretive approach according to Bix (99). Why is it important to us to have
a stable legal system?
Dworkin v. TWAIL• Articulate consistency – how is this different than classical legal thought?• What are principles? Are they really that different from rules, and if so, are they really that different from
moral principles? Don’t we run into the same problems that we had with natural law? Who gets to decide?
– “We have here a clear apprehension of the principle that an uncivilised tribe can grant by treaty such rights as it understands and exercises, but nothing more.” (Westlake).
• If you are interested, read Tony Anghie, Finding the Peripheries, in Harvard International Law Journal. • Anghie quotes 19th century scholar Oppenheim on occupation: “Only such territory can be the object of
occupation as is no State’s land, whether entirely uninhabited… or inhabited by natives whose community is not to be considered as a State. Even civilised individuals may live and have private property on a territory without any union by them into a State proper which exercises sovereignty over such territory”
• Here are legal principles, dictated and structure by the institution.
Judges’ Decision Analysis
1. What methodology did the court use in its reasons? Read the judgment closely and identify text that exhibits elements of each of the following:
– Legal Formalism/Classical Legal Thinking
– Do judges use neutral legal concepts, legal fictions, or legal devices? Do they use logical methods? Do they approach deciding the case as if it was a science? Does the decision as a whole take a particular form?
– Sociological Jurisprudence – Do judges consider the rules’ historical foundations or the ends that the rules seek to
accomplish? Do they consider potential sociological outcomes? Is there a place where they could have considered (but didn’t) the effects of their ruling?
– Legal Realism– How do judges talk about facts? Do we see political considerations? To what extent are
judges being realistic about their background and its potential effect on the decision?– Dworkin’s Interpretive Theory
– To what extent does the decision reflect a consideration and interpretation of principles? Policy?
2. What sources of information did judges use to come to their decision? Did the judges consider legal sources only? Extra-legal sources (be specific)? Judicial notice
– Was Holmes correct in thinking that the legal scholar of the future would be the scholar of statistics and economics?
Week 10 – Critical Legal Theory and Feminist Legal Theory
Bix Chapter 19Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
Feminist Legal TheoryBecause feminist legal theory is wide-ranging and diverse, it is difficult to identify a single set of concerns that unite all feminist legal theorists. Having said that, there are certain issues that most feminist legal scholars aim to highlight and address:
• What are the ways that law legitimates and exacerbates the oppression of women?• What are the ways that patriarchy influences the law and legal institutions? How is equality to be
understood against this backdrop of presumed male authority? And,• What assumptions are made about differences between women and men in terms of their capacity
for the abstract and impartial reasoning that law traditionally demands?
Bradwell v. Illinois 83 US 130(1873) (in Choudhury)In 1873, the “stereotypes of womanhood were used to deny a female applicant admittance to the bar”:
• “[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.”
Young v. United Parcel Service USSC (2015)• Young was a part-time driver for UPS. Her doctor advised her that she should not lift more than 20
pounds. UPS required drivers to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young filed a federal lawsuit, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction.
• WWA Feminist Legal Theorist say about Scalia’s dissent in the decision?
• “Title VII forbids employers to discriminate against employees “because of . . . sex.” 42 U. S. C. §2000e–2(a)(1). … The most natural way to understand the same-treatment clause is that an employer may not distinguish between pregnant women and others of similar ability or inability because of pregnancy. Here, that means pregnant women are entitled to accommodations on the same terms as other workers with disabling conditions. If a pregnant woman is denied an accommodation under a policy that does not discriminate against pregnancy, she has been “treated the same” as everyone else.”
Feminist legal theory challenges standard understandings of law in a variety of ways:1. It highlights areas where the law either legitimates oppression or the operation of law effectively treats
men and women differently; (how is this a kind of feminist legal realism?)2. It provides a critique of traditional jurisprudence and thinking about the law that can provide a basis for
reform that is not inherently patriarchal or discriminatory;3. It challenges common ideas of normality which are based on masculine / patriarchal conceptions of the
social and legal world; 4. It aims to highlight wrongs done to women that are typically ignored by traditional perspectives;5. Because law plays a role in indicating which violations, wrongs, injustices, harms, or infractions are
illegal, and thus regarded as deviations from the status quo, it also sets the official standard for what is normal and accepted:
– “From these observations, feminist philosophers of law have concluded that law makes systemic bias (as opposed to personal biases of particular individuals) invisible, normal, entrenched, and thus difficult to identify and to oppose. Such systemic bias may be accepted not only by actors within the legal system such as judges but also by its victims as well as its beneficiaries. A primary task of feminist philosophy of law is conceptual revision to identify such bias wherever it occurs within the legal system.”
The First Wave of Feminism and Feminist Legal Theory
• The key concern of liberal (first wave) feminism was equality of treatment for both men and women. It started from the premise that women are autonomous beings who should have the same rights, freedoms and privileges as men
• E.g. Right to vote; Right to equal pay, benefits and access to employment; Right to serve on juries; (Limited) right to abortion
• Liberal feminism has been deeply involved in calls for law reform aimed at (at the very least) formal equality for women.
• It takes as its starting point the liberal view of the world – that autonomy and individualism are key values
Criticisms of First Wave Feminism1) Nicola Lacey (1995) in ‘Feminist Legal Theory: Beyond Neutrality’, Current Legal Problems
a. “Liberal feminism’s central idea amounted to a strategy of assimilation of women to a standard set by and for men. The rights assigned to men as legal subjects had to be made available to women whenever a comparison between the treatment of the two revealed a disparity: the equalization was almost invariably in one direction – towards a male norm. The radical potential inherent in the idea of ‘treatment as an equal’ was not realized, because the political debate issued in by liberal feminism was highly circumscribed. Far from engineering a substantial reconsideration of the way in which the world was organized, the public standards already in place were assumed to be valid, and the feminist conceptual tools of bias, discrimination, equal worth measured against them.”
b. How does Legal Realism help us understand why liberal feminism would not be successful? 2) The idea of the “rule of law” acts like an illusion that blinds us to the structural inequalities that are
at the heart of the entire legal system. Because the law is a product of male-domination, it is inherently
male in its focus and the values it promotes; the “rule of law” is not a neutral concept, but rather acts to legitimate existing power structures and rules that serve the interests of men.
a. Liberal feminism does not pay enough attention to the underlying causes of the oppression of women, including the eroticization of domination and subordination that are foundations of gender discrimination. Formal inequality is not sufficient where structural inequality is left unaddressed.
b. For example, Catharine MacKinnon writes, “Women and men are divided by gender, made into the sexes as we know them, by the requirements of its dominant form, heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality”
3) A third critique of liberal feminism's emphasis on autonomy and fairness is that it runs the risk of elevating one idea of the good life over others found in multicultural societies:
a. “Early feminism’s focus on formal equality in public life and the workplace was criticized for its inadequate attention to the conditions of material inequality experienced by poor and racialized women. Feminists of the 1980s were criticized for essentializing the category ‘woman,’ whether they preferred ending patriarchal domination or celebrating women’s unique gifts. Both law and feminist legal theory had failed to theorize women of color’s experiences of discrimination along multiple axes of identity. Kimberlé Crenshaw introduced the concept of intersectionality to challenge the default whiteness of feminist analysis (Crenshaw, 1991). Legal tests often require categorizing harms based on ‘race’ or ‘gender,’ with the result that some plaintiffs fall between categories, while others receive no legal recognition of the compounding interactions among different forms of discrimination (Williams, 1987).”
Legal Proceedings As a Form of ViolenceGendered violence is not confined to physical or psychological harm. Law and legal proceedings are also a form of violence. Carol Smart (1990) writes:
– “The rape trial is a process of disqualification and celebration. It disqualifies women’s experience of sexual abuse. This is more than saying that law take’s a women’s no to be yes, or that law is sexist. It is both of these; but the point is that the very spectacle she must relate draws the rape trial firmly into the realms of uncertainty and doubt. The law exaggerates a common sense understanding of women’s sexuality. It allows it free reign and it constructs the story of the rape in a sexualized form. The sexualized woman can then be disqualified. But at the same time it celebrates so-called natural heterosexuality. Because it is concerned with consent and non-consent, the sexual pursuit of women which may lead to submission is defined as outside the law. Being a sexual predator is regarded as normal, even desirable, for men. Sexualizing all women is equally regarded as natural; pressing a woman until she submits is regarded as a natural, pleasurable phallocentric pastime. The rape trial will not allow for any critique of this ‘natural’ activity.”
Intersectional Feminist Legal Theory
Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8. (Kimberle Crenshaw)
– “I am suggesting that Black women can experience discrimination in ways that are both similar to and different from those experienced by white women and Black men. Black women sometimes experience discrimination in ways similar to white women's experiences; sometimes they share very similar experiences with Black men. Yet often they experience double-discrimination-the combined effects of practices which discriminate on the basis of race, and on the basis of sex. And sometimes, they experience discrimination as Black women-not the sum of race and sex discrimination, but as Black women. …
– “Unable to grasp the importance of Black women's intersectional experiences, not only courts, but feminist and civil rights thinkers as well have treated Black women in ways that deny both the unique compoundedness of their situation and the centrality of their experiences to the larger classes of women and Blacks.
Culture DivideCulture is not static. Culture is also not the primary (or only) cause of gender violence; the “First World obsession” with culture obscures the effects of “global inequality and structural economic exploitation… From such a perspective, human rights and feminism might well be Trojan horses. They may bring some gains for women’s equality and wellbeing, but other, new harms, like the demonization of culture and disregard for global material inequalities, might creep in as well.”
• Liberal (culturally neutral) feminism that emphasizes autonomy also prioritizes individualism over communitarian values
Cyra Choudhury, Florida International University Law SchoolProfessor Cyra Akila Choudhury graduated with a J.D. (cum laude) and an LL.M from Georgetown University Law Center. She received an MA in Comparative Politics from Columbia University focusing on women, religion and South Asia. Prior to joining FIU, Professor Choudhury worked for The National Academies advising the federal government on international labor standards and Freshfields Bruckhaus Deringer. In 2012, Professor Choudhury was awarded a grant from the Institute for Global Law and Policy (IGLP) at Harvard Law School to study domestic migrant workers. She is part of a number of research groups including the Ottoman Legacies in Post-conflict societies, an initiative started at the School of Oriental and African Studies in London, UK; a network of TWAIL scholars; and a critical human rights study group funded by IGLP.
• What is Feminism’s “problem with culture” as Prof. Choudhury describes it?• How does culture get used as an “alibi”? Who are the “traditionalists” and who are the “universalists”?
What do they have in common? How do their positions become a tool for political agendas?
Example #1: the Uniform Civil Code (UCC) in India, which would eliminate religious-based family law, and CEDAW (p. 236-238); how do those agendas get usurped? What is the difficulty for liberal feminists? What are the difficult effects for minority feminists and feminists from the Global South?
• Problem with example #1: Conflating feminists from the Global South with ‘cultural traditionalists’ “elevates the cultural commitments of minority feminists (to the extent that they exist) above their gender justice commitment by fiat, and does so in contravention of their own priorities. It obscures the fact that everyone in a heterogeneous society is negotiating multiple identities and hybridity—not just minorities.” (239)
Example #2: According to Prof. Choudhury, how does universal human rights “mask the cultural content” (p. 241) that goes into the articulation of woman’s rights? Similarly, “Treating Muslim women as primarily subordinated by males acting on religious authority”; what political and social circumstances are ignored by this assumption?
• Problem with example #2: US feminists erase their own cultural positionality; their fight at home is political, while struggles abroad are part of culture wars: “A pro-universal human rights position is normalized as he neutral secular position devoid of any cultural or religious baggage” (243)
– “Treating Muslim women as primarily subordinated by males acting on religious authority” requires ignoring or oversimplifying the complexities which underscore the reality that women are not always allies, that men are not always enemies, and that culture and religion (Islam) cannot explain the problems of gender inequality and oppression when liberal ideology propels imperial intervention.” (250)
Example #3: Dress Code
How does dress and clothing exemplify the different priorities of different feminists, the underlying assumptions of a “culturally neutral” approach, or the difficulty in pitting feminism as against culture?
– “Even a cursory examination of the porn, diet, and fashion industries throws up contradictions about “freedom” and choice. It seems as though liberal feminists espousing beliefs about autonomy are willing to indulge themselves in the fantasy of choice, refusing to unpack the many layers of influence that make up subjectivity and inform choice, rather than confront the structural impediments to freedom.”
Critical Legal Studies
Bix’s list of Critical Legal Studies themes: • The political nature of law (ideological biases inherent in neutral concepts)• The radical indeterminacy of law• That law promotes the interests of the powerful and legitimates injustice• That rights rhetoric works against the interest of the groups that it purports to protect
• Bix quotes James Boyle, regarding the indeterminacy of law, CLS scholars were also quick to show how the language of the law was used to mask or obscure power imbalances. The legitimating function of law serves to obscure contradictions, for example, between rules and standards (Bix 241). CLS scholars also worked to break down fictitious categories in law, like the separation of public and private (Bix 240)
• Robert Cover in two seminal pieces argued that Law was not a system of rules but rather a normative world that constructed meaning. In “Violence and the Word” 95 Yale LJ 1601 (1986), he highlights the way that legal interpretive acts "signal and occasion the imposition of violence upon others”:
– A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.
Cheryl I. Harris B.A. Wellesley, 1973, J.D. Northwestern, 1978, UCLA Faculty Since 1998Cheryl I. Harris is the Rosalinde and Arthur Gilbert Foundation Chair in Civil Rights and Civil Liberties at UCLA School of Law. Professor Harris began teaching at Chicago- Kent College of Law after working in criminal defense law and serving as a senior legal advisor in Chicago’s AG office as part of the reform administration of Mayor Harold Washington of Chicago. She has received several awards and accolades including the ACLU Foundation of Southern California's Distinguished Professor Award for Civil Rights Education. We are reading excerpts from “Whiteness As Property,” 106 Harvard L Rev 1709 (1993).
Critical Race Theory (Cheryl Harris) – Whiteness as Property• How, historically, has law through the regime of property institutionalized race inequality and race-based
violence? – What are the ways that law ratified the “inherent instabilities” of the “mixed category of property
and humanity” that was found in slavery, and in the particular treatment of Black women’s bodies?
– Harris also writes that the entrenchment of plantation slavery was in part a response to the “social crisis produced by the eroding capacity of the landed class to control the white labor population”
• Harris writes that the “legal legacy of slavery and of the seizure of land from Native American peoples is not merely a regime of property law that is (mis)informed by racist and ethnocentric themes. Rather, the law has established and protected an actual property interest in whiteness itself…”
• Other scholars have similarly argued that particular venerated legal institutions are premised on race inequality and exclusivity;
• See e.g. Aziz Rana, The Two Faces of American Freedom and Tony Anghie, Imperialism, Sovereignty and the Making of International Law
• More generally, according to Harris, how do race, culture, custom, government and law interact and intersect? Harris writes,
– Rather than remaining within the bipolar confines of custom or command, it is crucial to recognize the dynamic and multifaceted relationship among custom, command, and law, as well as the extent to which positionality determines how each may be experienced and understood.” (Harris 1993, 1727)
Week 11 – Critiquing Rights
Bix Chapter 10Brian Bix, Jurisprudence: Theory and Context, 7th ed (London: Sweet & Maxwell, 2015) at 1.
Rights - Hohfeld
Function of Rights• Interest or Beneficiary Theory of Rights:
– We have rights to make us better off. The function of rights is to further the interest of the rights holder. We grant individuals property rights not because ownership rights are valuable in and of themselves, but rather because these rights make owners better off.
• Will or Choice Theory of Rights:– The purpose of rights is to grant the rights holder the freedom to control the duties that others him
or her. To have a right is to have the ability to determine what others may or may not do, and to exercise authority over certain aspects of one’s life or surroundings. Property as a “bundle of rights” (e.g. right of exclusion) is an example. Rights can be waived and there is no such thing as an un-waivable right (i.e. you can, for example, waive the right to be free from slavery or torture)
Hohfeld’s Taxonomy Of Rights: Components And Features1. Relational theory: If there is a right for A, that right always works as against another B for some X. In
other words, A is the rights holder; B is the person (or group of persons) effected by the right, and X represents the object of the right.
2. There are four types of rights entitlements (meaning in law, in decisions, we tend to call these four different things “rights”):
1. Claims 2. Privileges3. Powers4. Immunities
Claim Right With a claim right for A, it imposes a duty on B.
o Employee has a claim that employer must pay his wages.o B borrowed money from A, so A has a claim against B for returning the money.o A has right against B to not publish something that will injure her reputation.
Rights relation: A has claim against B to X (or refrain from X) Correlative relation: B has duty to A to X (or refrain from X)
Privilege Right
Option to do something and prevent others from stopping us doing those things:
o You have a right to pickup a shell on a public beach. There is no duty to pick it up. Rights relation: A has liberty against B to X.
Powers/Authority Right
Enables the rights holder to annul the liberty rights of others to chose whether or not to do a certain thingo A ship's captain has power to order a ship hand to scrub the deck/ The captain's exercise of power
changes the sailor's situation. It imposes a new duty upon him and annuls one of his privileges (to not scrub the deck).
o Librarian has power over a student with regards to use of the library. Rights relation: A has authority over B to X. Correlative relation" B has a liability to A to X.
Immunity Rights
Immunity rights prevent others from compelling me to act in a certain way or requiring me to do a particular thing.
Example: witnesses in court have a right not to be ordered to incriminate themselves; Another Example: civil servants have a right not to be dismissed after a new government comes
to power. The rights are immunities, corresponding to an absence of a power in some other party to alter the right-
holder's normative situation in some way. Rights relation: A has an immunity against B to X. Correlative relation: B has a disability (no authority)
against A to not-X. Taxonomy:A’s right B’s disablementClaims DutyPrivileges No RightPowers LiabilityImmunities Disability
Figure 1 Jural Opposites
Critique of Rights - BrownWendy L. Brown (born November 28, 1955) Professor Brown received her Ph.D in Political Philosophy from Princeton University in 1983. Prior to coming to Berkeley in 1999, she taught at the University of California, Santa Cruz and at Williams College. Her work has
been translated into more than twenty languages. She lectures around the world and has held a number of distinguished fellowships and visiting professorships, most recently at Columbia, Cornell, Birkbeck and the London School of Economics. In 2017-18 she was a Simon Guggeheim Fellow and a UC Presidents Humanities Research Fellow.
Critique of Rights• Why is it important to think about and critique rights? Prof. Brown gives us a clue in her introduction:
“the transposition of venue from the streets to the courtroom” of what? What’s happening in the courtroom?
• How does Prof. Brown describe or define rights? Rights appear as that which we cannot not want… – If the acquisitions that women have made in the last century are tenuous and partial, “then surely
procuring and pressing our rights to them can only abet the process of making them more certain possessions.” (421)
• So then why does she talk about “suffering the paradoxes of rights”? What are the paradoxes imbued in or inherent in rights talk? (see also p430)
Paradoxes• Brown describes rights as concealing “unemancipatory relations of power… in its sunny formulations of
freedom and equality” (421). What specifically are the paradoxes she describes? 1) Rights protect as they subordinate
The process of claiming rights as an X (woman, racialized person, LGBTQ person) re-encodes definitions of X premised on subordination
“To have a right as a woman is not to be free of being designated and subordinated by gender” (422)
2) Potential but unlikely Rights “that are neutral and universal potentially entrench the subordinated status of women
by augmenting the power of the already powerful” (423)
Rights as Liberties versus Rights as Claims
Rights as Powers, Claims, and Privileges
“To have a right as a woman is not to be free of being designated and subordinated by gender.” (Brown 422) It reinscribes as it protects, enabling regulation through designation.
“rights differentially empower different social groups depending on their ability to enact the power that a right potentially entails.” “The paradox, then, is that rights that entail some specification of our suffering, injury, or inequality lock us into the identity defined by our subordination…” (Brown 423)
Other Critiques Of Rights– Brown: the difficultly of expressing rights in a general enough way so as to capture the concept of
right, but in a way that is particular enough to ameliorate the circumstances of the disadvantaged group; feminist legal reformers struggle with the tendency to “render gender so abstractly that the particulars of what constitutes women’s inequality and women’s violation remain unarticulated and unaddressed” (Brown 423)
– What is gained and conversely what is lost when, for example, when gender discrimination or sexual harassment is cast as something women can do to men?
– Rights “subordinat[e] … political ends to liberal discourse”; rights “in liberalism also tend to depoliticize the conditions they articulate”
Week 12 – Key Issues and Course Summary
Timeline
Three Globalizations (Duncan Kennedy)
1) First Period 1850s-WWI: Classical Legal Thought (Legal Formalism)– Law as a system, as a science– Characteristics: separation of public and private law, individualism, interpretive formalism, gapless
system – Will theory: help individuals realize their will– National system of law as a reflection of the normative order of the underlying society
2) Second Period 1900-1960s: The Social – Critique of CLT and deductive formalism– Law as a purposive activity– Functionalism, legal instrumentalism (law as a tool for social change)
3) Third Period Post WWII: – Legal technique as the pragmatic balancing of conflicting considerations– Law as guarantor of rights – Neo-formalism in public law—balancing tests, proportionality – Legal remnants of the confrontation between CLT and the Social—e.g. contract law + labour law– Legal pluralism as the “contemporary ideal”
• What does Kennedy mean when he writes that what was globalized was not a philosophy of law in the usual sense?
• What examples does he give of philosophy of law? Do you recognize these? Can you define them? – Legal positivism– Natural law– Rights– Pragmatism
I n d i g en o u s L e g a l
T h e o r ie s
B u r r o w s, C h r i t i e , N a p o l e on
J o s e ph R a z ( U K / U
S )( 1 9 9 4
)A u t h o r i ty o f L a w
C r i t i ca l
S c h o la r s
( U S ) ( 1 9 8 0s - > )C r i t i c a l
L e g a l S t u d i e s a n d C r i t i c a l R a c e T h e o r yF e m i n i s t L e g a l T h e o r y
D w o rk i n
( U S ) ( 1 9 7 5
)I n t e r p r et i v e T h e o r y
F u l l e r ( U S ) ( 1 9 6 4
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R e c i p r o c it yI n t e r n a l M o r a l i t y o f L a w
H a r t ( U K ) ( 1 9 6 1
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L e g a l P o s i t i v i smI n t e r n a l A s p e c t o f R u l e s
K e l s en
( A u s t ri a )
( 1 9 3 4)
P u r e T h e o r y o f L a w & t h e B a s i c N o r m
L e g a l R e a l i s
m ( U S ) ( 1 9 3 0
s )L a w i s i n d e t e r m in a t e
H o l me s
( U S ) ( 1 8 9 7
)S o c i o l o g ic a l J u r i s p r u de n c e
A u s t in
( U K ) ( 1 8 00 s )
L e g a l P o s i t i v i smC o m m a nd T h e o r y
A q u in a s ( 1 2 00 s )
N a t u r a l L a w
First G lobalization (1850-1914)Classical Legal Thought
Second Globalization (1900-1968)The Social
Third G lobalization (1945-2000)Legal technique and pragm atic balancing
What does Kennedy mean by “mode of thought”, “mode of reasoning” or “characteristic argument”? How is what he is presenting different from philosophy of law? What is the difference between legal technique and philosophy of law?
Where are we now? Where does this leave us? According to Kennedy, our mode of legal thought includes pieces of Classical Legal Thought and The Social. We still use methods of deduction, within the confines of positive law. At the same time, judges engage in policy analysis, balancing or doing proportionality tests on conflicting considerations.
• Initially, these modes of legal thought did not have political valences, but they do now (in other words, they are now associated with left/right politics in different areas of law, but that was not the case in their original form).
• “In place of the unselfconscious confidence in reason and science of CLT, and of the combative self-assertion of the social, policy analysis has been, for fifty years, the vehicle of modest, workmanlike devotion to doing legal work with whatever materials are left over from the grandiose projects of the past. Its practitioners are most proud when their conclusions are warranted non-political because they please and displease the left and right without apparent pattern.”