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Law & Morality 271.docx

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Jacob Weinrib

Intro & The Problem of Unjust Law 1/7/2013 7:14:00 AM Intro:  How is a legal system possible?  In order to have authority, the philosopher would argue that there would have to be some pre-determined rule to authorize someone to exercise legal power, but there is no such rule  To use force, your authority only extends as far as your force does  Might doesn‟t make right, doesn‟t answer the philosopher‟s question  Just because a person has coercive power/force this doesn‟t create a rule as to why they have authority  They simply then have the power to force a person to do something  Might establishes that another person can compel a person to act a certain way  Authority involves placing a person under obligation  Both morality and law suggest that one shouldn‟t murder  But it is questionable that law could command things of us that morality might ask  Kant would argue that there is a norm that makes a legal system possible, and an obligation desirable  For a legal system to be possible one can appeal to an ultimate authority i.e. God, or appealing to an ultimate norm  via morality, or not looking at morality at all January 9: Gustav Radbruch –  Radbruch was a law professor  Wanted to develop ideas to explain how a legal system could be organized  Felt responsibility for what went on in own society, Germany  Known as liberal and pacifist, concerned w/human rights  Fights in front lines of first world war, felt it was a social right  Wanted a say in what happened in Germany after the war  Joins social democratic party after the war with decimated economy  Communists vs. Nazis at this time, common street fights at this time  Stood between street fighting groups  Social democratic party sat in the middle  Radbruch tried to abolish death penalty  Was dismissed from job as university professor for having previously spoken out against Nazi power  Also banned from libraries b/c Nazis had power of who could access info & have important jobs  Star professors went abroad to England, US; Radbruch went into internal exile remaining in Germany but refused to participate in wrong-doings  Wrote much on what was wrong with Nazism before his death & what it would be like for Germany to have a “right” legal system outside of Nazism  Positivism – tries to explain what law is without appealing to any idea of morality o Radbruch‟s Lawlessness rejects positivism o Is positivism able to identify what law is? Radbruch would reply not o Positivist view is that a law is a law and this has no connection to morality o Incapable of establishing validity of statutes o A view saying something is a law if enacted, person who enacted it has power to enforce it o Law here is limited by the enforcer‟s power o Law can have any content whatsoever b/c no moral restriction on what can be law; only limit is what the sovereign/ruler can enforce o Dangerous b/c sovereign could make bad laws, as law you are compelled to obey it o Radbruch argues if anything could have stopped the Holocaust or the second world war it‟s lawyers having an opinion against it o His claim is that there is something fundamental about the nature of law that positivism cannot account for o Statutes: laws that a sovereign/ruler enacts using their legal power o By positivism, there is no innate validity of statutes/laws made here o Different conceptions of validity – acceptability, norms o There‟s a kind of validity that positivism can‟t account for o Its missing an obligation to follow the law o Law can generate an obligation to obey o Under positivist law a person may be forced to do something, but you can‟t explain an actual obligation to do so o Positivism tells you something about the world: if you don‟t do x, you will be punished o It doesn‟t tell you why there is an obligation o How can you derive a legal ought from fact o What theory of law for what it means to be valid will affect what there is an obligation to do o The way you conceive of law affects the way you conceive of legal validity January 16: Hart - Separation of Law and Morals –  Radbruch indicated 2 main problems w/positivism [a theory trying to account of what law is w/o appealing to moral concepts]  Positivist can‟t identify what it means for something to be a valid law  Nothing can be a valid law for Radbruch if it disagrees w/suprastatitory law  Second: positivism is a dangerous theory where citizens may end up doing morally unjust things b/c no validity of laws  Hart will disagree saying that positivism isn‟t dangerous, but the best theory H.L.A. Hart –  Permanently on the edge of a nervous breakdown; Jewish descent  Wants to be figure worthy of history, also felt like he doesn‟t belong in society  Much anti-Semitism in British society  Goes to Oxford, becomes a lawyer, works with British military intelligence during WWII Positivism Claims –  Basic positivist claim: theory insists on separating 2 basic questions that other theories blur: Separation Thesis  John Austin “Is „X‟ a law?” “Is this particular norm moral?”  Positivist argues that these are two distinct questions  Something can be both a law and can be moral  Something could not be a law, and not moral  Something could be a law but not moral  Something could be moral, but not law  Still doesn‟t answer how a positivist identify laws  Hart will argue that law can be identified by its pedigree; whether it was enacted in accordance w/the appropriate rule for enacting a law in a given society What Positivism Doesn‟t Claim –  Doesn‟t deny that morality has influenced law or vice versa  Also doesn‟t deny that moral principles could be introduced into a legal system  As a general matter something doesn‟t have to be moral to be law  Some legal systems may enact moral requirements as standards for what can be law  This is only a law for what can be law within a given society Confusion of Competing Theories –  Positivism argues that all who don‟t endorse separation thesis is confused  Bentham & Austin developed legal positivism  Both argued that b/c something violates morality doesn‟t make it not law & also just b/c something is morally desirable doesn‟t make it law  Two classes of confusion:  Anarchism: if something is immoral/unjust, it cannot be law.  Quietism: If something is law, it cannot be moral or unjust.  Hart thinks both positions are confused b/c they fail to separate what law is from what is moral  Neither can recognize that an existing law could be unjust  Hart thinks these are morally deficient  Anarchism is a problem b/c it suggests that if any law is slightly unjust, we are under no obligation to follow it  This then leads to the view that you don‟t have to obey anything  Taking a quietist thesis you commit to the view that just b/c something is law, and enacted in accordance w/enacting standards then it is just  Hart wants an theory that explains obligation to obey law, and also allows criticism of existing laws  Wants a middle path between anarchism and quietism A Progressive Theory –  Endorsing separation thesis that was essential for reformer movement  Reformers wanted precision of what was and was not law  Take a given law: ask is it a law (enacted through appropriate procedure)? Is this law a moral law? If answer is no, what would be a moral law? The answer to this and its proposal be enacted as law.  Not just assuming that what is moral is law, but make better laws  Positivism says take morality for whatever you could imagine morality to be; making no appeal to controversial moral claims  Positivist reformers were able to identify laws, if they were moral, and invalidate unjust laws and enact moral laws Objections To Legal Positivism –  1. Affirms the command theory  2. A formalist view of adjudication  3. Leads to extreme injustice o Radbruch‟s view was positivism was dangerous leading to injustice b/c it viewed law in abstraction from moral terms so lawyers would apply law in unjust terms o Hart replies that positivism doesn‟t lead to injustice, and that Radbruch is confused o We have 2 questions when confronted w/Nazi laws that Radbruch refers to; is it a valid law? Were these laws moral? o Hart answers yes they were enacted validly but no they were not moral o So these laws were not moral, so don‟t follow them; anarchism? Attack on Radbruch –  Radbruch says not a law b/c not suprastatutory law, Hart replies this is nonsensical disagreement of vocabulary  Can‟t be case positivism leads to injustice b/c in our society we benefited w/better gender laws ect  Radbruch argues positivism compatible with any view of morality so you can couple it with Nazism view of morality  Hart argues that Radbruch is arguing disputable philosophy Monday, January 21: Positivism & Hart Continued –  Hart identifies positivism with the separation theory as the heart of positivism, every positivism theory agrees with this  To know whether something is law you ask not whether it is moral, but whether it was enacted rightfully under appropriate social procedure  All laws positive laws; meaning all laws exhaust the concept of law  Anything that is law is law because it was enacted through those procedures; therefore all laws are positive laws  Laws not valid because they are moral  Non-positivists are opposition holding that though there is positive law, but that the idea of law is not exhausted by the idea of positive or enacted law  One of these thinkers is of course Radbruch  Law implies legal obligation if it has been enacted through via acceptable procedures  Hart tries to rehabilitate positivism in his article  Radbruch trying to end positivism in Germany Three Objections To Positivism:  1. Affirms command theory o What is the command theory? A theory developed by Austin, hero of Hart o Separation thesis, Analytical Clarity (speaking plainly for all to understand), and Command Theory are the 3 theses comprising positivism o Command Theory - Law is the expression of a wish that another person do something or abstain from doing something coupled with a punishment for doing the opposite, and this wish is issued by a sovereign who is habitually obeyed but does not habitually obey others, and issued in general terms. o 3 Reasons for Rejecting the Command Theory: o 1. Doesn‟t fit modern democratic societies. o In democratic society everyone is a citizen each giving commands to others through their representative o All have the power to exercise regular public rights, so there is no one who is commanded and not a commander o All are bound by rules and create the rules by which they are bound o 2. Not all laws are commands imposed by the sovereign. o Doesn‟t seem there is any un-commanded commander b/c even they are bound by some sort of constitution o Other aspects of a legal system seeming much less like commands; agreements where citizens give each other & themselves new rights and duties o Command theory can‟t account for something as basic as the contract o 3. Law is not the gunman writ large, and legal order is surely not to be thus simply identified with compulsion. o Command theory is missing something; it is missing legal duty o Law isn‟t simply obligation or forced o Command theory reduces the idea of law to compulsion, to what somebody forces you to do; but force does not create obligation o How can we conceive of legal obligations?  2. It is formalism. o Formalism - view that law involves mechanical application of rules to facts. o Formalism says applying legal rule to facts of a concrete case is simply like applying a formula to a math equation; Hart disagrees with this o This b/c not all rules completely determine how they are to apply to instances (ex. No vehicles in the park) o A “core case of a rule” is where there is no dispute to a way in which a rule applies o A penumbral case is where the application of a rule is in question o Problem isn‟t that the rule is vague, but that terms require definition o Rules indeterminate because laws by their nature are general o Laws try to provide general standards of conduct o Hart argues he isn‟t a formalist b/c he acknowledges that penumbral cases exist where the rule is unclear & judge is faced with incomplete law o Hart says that judges are making law by appealing to different conceptions of social society to decide how the rule applies to a case at hand o Hart wants to show that none of these actually undermine separation thesis o Whether judge appeals to an aggressive or appealing social policy in their new law, the judge is still making law  3. Leads to extreme injustice  When Hart confronted by Nazi law he sees simple solution  Just b/c something is a law doesn‟t mean that you have to follow it  Believes he can use separation thesis to explain legal obligation  Non-positivist i.e. Radbruch says that not everything can be a law, but IF something is a law, one must conform to it  Hart however believes just about anything can be a law, but just b/c it is law, if you ask it is moral, you are not required to conform to it  Nothing about command theory threatens separation thesis for Hart The Minimum Morality of a Legal System:  Particular laws need to be valid not moral  Does a legal system as a whole have any necessary relation to morality?  Radbruch and others of course say yes; purpose of law is to serve justice  Hart is going to say there is no necessary relationship between morality and the validity of a particular law  But there is relation between a legal system as a whole and morality  Due to certain human characteristics/vulnerabilities  B/c human beings are the way they are, there may exist some laws that overlap with morality  Not to be though anything deep about law, but about humans b/c we have vulnerable qualities  If we were like crabs, none of these laws would actually be required  Law involves general rules; b/c of this law requires a principle of procedural justice treating like rules in a like manner Wednesday, January 23: Hart, The Concept of Law – The Pre-Legal World of Primary Rules –  Primary rules are concerned with the actions that individuals must do or must not do  Rules indicating the ways in which we should act in respect to one another  Problem of Uncertainty: no authoritative proc
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