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Test 4 Review.docx

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PSYC 3390

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PHIL*3040 Test 4 Review There are 7 questions on the test for 7 lectures + 1 case study (I don't know if he'll test us on the case) so likely 1 question from each lecture. This review does not include everything, just the stuff listed on Courselink under "Topics for scheduled classes". Happy studying! Lecture 21 - Fuller Continued The source of meaning in law -Hart says that in interpreting a rule, the task is to determine the meaning of an individual word in that rule -In the penumbra cases, the example of "vehicles" in the park in which the park excludes "vehicles" but it is unclear to what types of vehicles (does it include planes, segways, skateboards?) -Says that even in the case of statutes, we commonly have to assign meaning not to a single word, but to sentences, paragraphs or even a whole page or more of text King Rex -Fuller uses the allegory where a new King (King Rex) faces the challenges of law-making -He beings by creating a legal reform  Repealed all existing laws to write new ones himself  Then he decides to judge all disputes himself  Writes a new but secretive code  Avoids publishing the code and adjudicating on a yearly basis  Publishes the code, but obscurity impairs its understanding  Clarifies the code, but leaves the code with many contradictions  Adds to the list of crimes (sneezing, coughing, etc.)  Almost Revolution  Full re-writing, complete set of law  Proves outdated and hence submitted to daily amendments  Further discontent Eight ways to fail to make law 1. Failure to achieve rules at all, so that every issue must be decided on an ad hoc basis 2. Failure to promulgate or make the information known 3. The abuse of retroactive legislation (retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law) 4. Failure to make rules understandable 5. The enactment of contradictory rules 6. The enactment of rules that require conduct beyond the powers of the affected party 7. Introducing such frequent changes in the rules that the subject cannot orient his action by them 8. Failure to achieve congruence between the rules as announced and their actual administration Procedural natural law approach Rather than adopting a substantive natural law approach which postulates a higher law that sanctions the legislative functions of the State (ex. Gustav Radbruch), Fuller counsels in favour of procedural natural law approach -Taking up his eight ways to fail to make law Fuller explains that they are mirrored by eight "desiderata" (or requirements) which are implications or specifications of the aspiration and duty to treat people with fairness and justice - to be ruled as free persons, fundamentally the equals of their rulers Lecture 22 - Dworkin - Rules, Principles and Rights Dworkin's critique of Hart -Says Hart's positivist account of law misses a very important element of the legal system -Says when it comes to basic questioning convening law, we still haven't satisfactorily answered them -For legal realists, these questions should be answered by analyzing how legal institutions really operate; for them, law is simply what a judge says it is Nominalist view of law -Nominalists (a legal realist view) see "the law" and "legal obligations" as myths invented by lawyers and judges for various motives -They argue we can't find satisfactory answers to our questions ("what is law?", "what is legal obligation?") because the problem they point to are not real and hence cannot be solved -They suggest these problems are unsolvable and we turn our back on these problems and spend our time on other social issues Critique of positivism -Unlike legal realism, legal positivism can provide detail and elaborate answers to the questions about the law and legal system; Dworkin says: 1. The law is a set of rules that can be identified not by their content but by their pedigree that includes an ultimate rule of recognition and supreme criterion of validity 2. A set of valid rules is exhaustive of "the law" and if someone's case is not clearly covered by such a rule, then law must be made by judges discretion 3. One has a "legal obligation" when one's action falls under a valid legal rule as decided by a judge's discretion Legal principles -Dworkin: in emphasizing the concept of legal rules and the condition of their validity and recognition, Hart fails to see an important element of law-making: legal principles -He speaks of principles as requirements of justice and fairness, giving them a moral dimension (illustrated in the following two cases...) Riggs v. Palmer -A New York court had to decide if a grandson (who was listed under his grandfather's will) could inherit under that will, even though he murdered his grandfather to get the inheritance -While the court recognized the binding power of the will as a legal rule, it argued that no one should be permitted to benefit from his crime Henningsen v. Bloomfield Motors -Court had to decide how much a car manufacturer may limit its liability when its cars are defective -Henningsen bought a car, and signed a contract which said the manufacturer's liability for defects was limited to 'making good' defective parts -Henningsen argued that, at least in the circumstances of his case, the manufacturer shouldn't be protected by this limitation and should be liable -He was not able to point to any statute, or to any established rule of law that prevented the manufacturer from standing on the contract, but the courts ultimately ruled with Henningsen -Courts said that since cars are a necessary instrument of daily life for many people and since using them poses many dangers to the public, car-markers are to be held to higher standards of quality Rules and Principles (THIS WILL BE ON THE TEST - NAME TWO OF THE THREE!) -Dworkin uses these cases to point out the distinction between rules and principles as a logical distinction: 1. Legal rules either apply to a case or they don't -But this is not true of principles; they don't apply in all or nothing fashion and a counter example to a principle doesn't require revision of the principle or admitting of the example as an exception 2. Unlike rules that contain the conditions of their satisfaction, principles don't have such conditions -Instead, they provide reason for making a decision without specifying what the decision should be 3. Principles have the dimension of weight or importance in the judge's consideration while rules lack this dimension because their importance is merely functional Lecture 23 - Dworkin Continued The sense of discretion -Dworkin distinguishes three sense of discretion: 1. A weak sense - when the standard that the official should apply cannot be used automatically, she should use judgement -Example, "The sergeant's orders left him a great deal of discretion" - to those who do not know what the sergeant's orders were make those orders vague or hard to carry out 2. A second weak sense - sometimes an official has the final authority to make a decision that cannot be reviewed by any other official -Example, in baseball if an umpire is faced with the decision of whether the ball or runner reached second base first, this is left to the discretion of the second base umpire and not reviewed by the home-plate umpire 3. Strong sense - used when an official on some issue is not bound by any authority -Example, a sergeant has discretion when he has been told to pick any 5 men for patrol -He makes a decision here, if he is told "pick your 5 most experienced men" then he does not have a strong sense of discretion since that order governs his decision What sense do positivists have in mind when they say judges exercise discretion -Positivists argue that if a case is not decided by an established rule, the judge should decide it by exercising discretion -If they mean weak sense it is a tautology(stating of truth/fact; not opinion) to say that when no clear rule is available, discretion must be used -Dworkin says we must examine the doctrine of judicial discretion in the strong sense -A positivist's reaction to the role/significance of legal principles can be: (a) to treat them the same way as we treat rules and say that they are binding as law; or (b) to resist that principles can be binding the way rules are Appropriateness -But they reject (a) because principles are not rules; they take (b) but to deny the binding power of principles would be counter-factual -In American and English jurisdictions judges do overturn established rules by appealing to principles -So, in either sense
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