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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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