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Lecture

PHL271 M Sept 19 Lecture 2.docx


Department
Philosophy
Course Code
PHL271H1
Professor
David Dyzenhaus

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PHL271 M Sept 19, 2011 Riggs v. Palmer Continued Lecture 2
Riggs v. Palmer
-majority; statute leads to an immoral result, general principle in the law that no man should profit from his crimes
-judges under a duty to reach a moral result
-judge can be characterized as a natural lawyer
-Dissenting; read the law as it stands, not according to conscience, but to read the law literally; amend present law
-look to law, not to morality is a legal positivist view, deny connection
-law is an instrument of power
Dworkin endorses the majority decision
-Hart thinks both judgements are wrong
-there exists a core and penumbra to law
-no matter how carefully a rule is made, it cannot accomplish complete clarity or predict the future
-care of determinate meaning; meaning of rule can be worked out by factual rather than actual tests
Penumbra does vehicle include bicycles, motor scooters etc.
-judges settle controversy over the application of the rules
-any case that gets into the courts where it is a question of law will take place in the penumbra, not the core; core cases
rarely make it to court
-get rid of the fiction that judges don’t make law
-law doesn’t say you can’t take if you kill your grandpa, nor does it say you can
-in the penumbra, judges must examine social policies
-there is no necessary connected between law and morality by showing that the penumbra is not necessarily a moral
question
-penumbra is unsettled law; most law is core law because it does its job; large part of the law is settled law
-its true that sometimes we can look closely at the law that have policies which dictate an answer; values found in the
law tell the judge how to make a decision even if there was controversy on what the law required in the case; legal laws
are not moral laws
-law creates obligations that aren’t necessarily morally good
-e.g. judges in Nazi Germany judging based on strengthening the regime
Hart The Rule of Recognition
-criticizes command theory of law because an uncommanded commander cannot exist; in order to make law, one has to
follow criteria in order to make it
-constraint on law making power will always exist
-also subject to follow their own law on top of this
-people live according to the primary rules when no authoritative figure exists
Problem of Uncertainty majority know and accept the rules; what rules are and their contents
Problem of Static Rules cannot adapt to social change without mechanism to change the rules
Problem of Inefficiency inability to resolve problems with the rules
-solved by becoming legal societies by adopting secondary rules; rules regarding the primary rules
Rule of Recognition public standard for law counting as law by being authoritative
-rules of changes, rules of adjudication; body of judges; unity of secondary and primary rules, with rules of recognition
being most important
-empowerment in adjudication; official body of judges
-simple society can work if they agree on rules and accept that it’s a good thing to have rules; internal point of view
-not necessarily the case in complex society; necessary only that officials follow law because they agree it is right
-majority of those subject to law must obey most laws, most of the time
-don’t have to have a positive moral relationship with the law
-laws are made based on what the law-maker thinks is right or wrong, disregarding its moral character
Dworkin
-hard cases are those where the law is unclear; uncertain what law requires
-if judges decide hard cases in the right way, the answer is fully determined by law itself; law contains all the info needed
to solve these cases
-judges don’t determine law idea; opposite to Hart
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