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Lecture 3

POLB30H3 Lecture Notes - Lecture 3: Legal Positivism, Intellectual Disability, Testator

Political Science
Course Code
Margaret Kohn

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Matters how judges decide cases
Case: death penalty case
2 men released from prison in North Carolina. They spent 30 years in jail. 1 man on death row for
30 years. Both are mentally retarded. They signed a confession which was coerced. Convicted of
raping and murdering a young girl. Not witness or evidence linking them to the murder. They
recanted the confession. Judge allowed the confession to be used as evidence in the trial. New
evidence was allowed to test for DNA which was the reason to their acquittal.
Judges have an impact on public policy
A will was legally executed
The beneficiary of the will murdered the testator
Question: should the court overturn the will?
What would the legal positivist (HART) say? What would the moralist (DWORKIN) say?
Legal positivist would say (HART)
Law is law maybe it’s a bad law maybe after confronting this case the legislature should change
the law and say that a murder cannot inherit but in so far it’s the law so we have to apply it
Moralist would say (DWORKIN)
Unwilling to separate the law and morals. He wants to bring morality internal to the law.
(Law/morality hybrid)
There is kind of a moral principle. No one should benefit from his own wrong. This principle in a
sense triumphs what is written into the actual legal code.
Ronald Dworkin’s approach to law (legal reasoning and judgment)
Dworkin’s theory is normative (he thinks that judges should consider what law ought to be);
It was formulated in part to refute Hart’s positivism
There are standards to assess the validity of moral claims
Law as integrity
1st key idea: Dworkin thinks that judges do not just advance their own moral preferences. He does
not believe that you can just follow your own preferences. But he also says a judge does not
follow the preferences of the electorate. He thinks that you can discover the logic of “common-
Common-law: this British system of developing law not through writing specific statues but
instead through the process of deciding cases which allows the law to develop in response to
problems that arise kind of organically.
Integrity is a principle that applies to both legislation and adjudication (means it applies to the way
we make laws and the way we decide specific cases)
Premise: “each person in a community should have approximately equal influence over decisions
made by parliament/legislature”
Fact: people disagree about important issues such as abortion, government regulation
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Solution: Solomon’s Baby (ex:both women claiming the baby is theirs so he says to tear the baby
in half)/checkerboard solution (class ex: 51% abortion 49% can’t abort)
What is wrong with this solution?
Dworkin says it is impossible to endorse principals that justify both one policy and its opposite
without contradicting oneself
We obey the law because of the
principle of “fair play” = accepting
benefits implies accepting burdens (we
recognize that if we accept the benefits
of social cooperation, we also have to
accept some of the burdens)
We obey the law because we
understand and accept the principles
that underpin it and this generates moral
Example: rulebook community following the syllabus and handing in assign on time
Integrity community - being convinced by the reasons behind the assign
“Judges should treat our present system and standards as expressing and respecting a coherent
set of principles, and, to that end, to interpret these standards to find implicit standards between
and beneath the explicit ones.” - Dworkin
Policy: a goal to be achieved, generally a way to improve some economic, political or social
feature of the community (ex: ending poverty)
Rules: generally applicable obligations (ex: paying taxes…ending poverty)
Principles: these provide a reason for deciding a case and must be weighed against other
principles in the legal system
Principles trump policies and rules
Another example of how these principles fit together is the case about freedom with religion.
Wanted to be Canadian citizens but didn’t want to take an oath to the queen because it was
incompatible with their religious beliefs
Reason for having this oath: to infiltrate a sense of Canadian history among new Canadian
citizens and to encourage a sense of national immunity and this is symbolized in the crown
and in taking of this oath.
Policy goal: Nationalism, pride and Canadian unity
Rule: the new citizens have to stand up and take this oath
Dworkin would say that we have to assess the principle of whether or not freedom of religion
is being jeopardized in this case
If it does jeopardize freedom of religion in this case, then you triumph the rule and you would
have to change the oath
Court however did not change the oath (“rule of law”)
Essay we read on law and morality:
It was written in the 1980s
1980s was a period in the United States of enormous ideological change
This was the era of Ronald Reagan, the conservative revolution in American politics
This was a backlash against liberalism
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