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PHL271 Study Notes Test 1.docx


Department
Philosophy
Course Code
PHL271H1
Professor
David Dyzenhaus
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PHL271 24 Sept, 2011 Reading 1 Notes: Riggs v. Palmer
Riggs v. Palmer 1889
Question: the relation between moral principles and statutory interpretation
Right for an heir to inherit from the grandfather he murdered
Majority: Earl, Dissenting: Gray
-Laws of NY will not be construed so as to secure the benefit of a will to a legatee who has killed the testator in order to
prevent a revocation of the will
FACTS: Francis Palmer made his will, left small legacies to his two daughters, and the remainder to his grandson, Elmer,
subject to support his mother Susan in case she should outlive Francis. Francis entered into an anti-nuptial agreement
with new wife Bresee and included her so that she would receive support if she outlived him. Elmer poisoned his
grandfather because he knew Francis was going to change the will, and so did so to ensure his portion.
DEFENCE: The testator has died, and had made his will when he was alive. It has been admitted to validation and
therefore must have effect according to the law. Statutes regulating wills without modification or control deem the
murderer to be given his profits.
MAJORITY: if some absurd unforeseen consequence arises in the construction of statutes, they are with regard to those
consequences void; judges are at liberty to expound the statute and only to that extent disregard it
-the law was not written with the intention that people would murder the testators of wills for quick profit
-no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, etc.
-these laws have not been suspended by statutes anywhere
-there was no guarantee that the murderer would naturally benefit from the will; he could have died before the testator
or removed from the inheritance; he made himself an heir through murder
-he caused the will to operate by killing the testator, but it should not speak in the murderer’s favour
-to allow the murderer to profit from his crime is a reproach to the jurisprudence of the state and an offence against
public policy
-he unlawfully prevented a revocation of the will, or of a new will from being made by his crime
DISSENTING: the matter does not lie within the domain of conscience
-bound by rigid rules of law, established by legislature
Question: whether a testamentary disposition can be altered, or a will revoked, after the testator’s death, through an
appeal to the courts, when the legislature has by its enactments prescribed exactly when and how wills may be made,
altered and revoked; the law has no room for jurisdiction by courts to alter it
-individual has the right to dispose of his property after death as he wills
-the rules imposed upon the disposition of one’s property have strict and systematic statutory rules for execution,
alteration and revocation which must be substantially, if not exactly, followed to insure validity and performance
-the legislature has assumed entire control over matters of wills, and to regulate them particularly
-there is an absence of rules in the law to allow an issue of morality to disturb the process of inheritance
-rules of law which annul testamentary provisions made for the benefit of those who have become unworthy of them
may be based on principles of equity and of natural justice
-the statutes have prescribed various ways in which a will may be altered or revoked, and it defines these modes as the
only way that these events are legally allowed to occur, and these rules do not involve morality
-a valid will must continue as a will always, unless revoked in the manner provided by the statutes
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Reading 2 Notes: H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’
FOCUS: to offer a statement of legal positivism, that law and morality do not have a necessary connection
BENTHAM AND AUSTIN
Criticism of Bentham: life under the government of laws, ‘to obey punctually, to censure freely’ (critique)
-although this is unstable because evil laws will cause resistance; at this point, the issues should not be oversimplified or
obscured, and the confusion of law and morals had created this
RECAP: the confusion of law and morals oversimplify and obscure the law
Bentham’s Two Scenarios: 1. Anarchist refuses to follow evil laws, and is free to disregard them, and 2. This is the law,
and therefore is what it ought to be morally (both are errors found in Blackstone)
Blackstone: human laws are invalid if contrary to the law of God: what is and what ought to be
Danger 1 law and its authority may be dissolved in man’s conceptions of what ought to be
Danger 2 existing law may supplant morality as a final test of conduct and so escape criticism
Bentham and Austin:
1. In the absence of an expressed constitution or legal provision, it could not follow from the mere fact that a rule
violated standards of morality that it was not a rule of law
2. It could not follow from the mere fact that a rule was morally desirable that it was a rule of law
-even laws that are morally outrageous are still laws; what is, and what ought to be
HART’S QUESTION: not whether every particular rule of law must satisfy a moral minimum in order to be a law, but
whether a system of rules which altogether failed to do this could be a legal system
UTILITARIAN CONCEPTS
Utilitarians insist that law and morals be separated; it is allowed for them to intersect, and it is clear that in
history, the development of legal systems had been powerfully influenced by moral opinions, and that moral standards
had been profoundly influenced by law, so that the content of many legal rules mirrored moral rules or principles
NOTE: Bentham and Austin agree with this Utilitarian view
1. The important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive
vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies, though
it could not supplant them
2. The famous imperative theory of law that law is essentially a command
RECAP: Three essential utilitarian concepts the separation of law and morals, vocabulary of law is highly important,
theory of law as a command
COMMAND THEORY OF LAW
-the notion of a command as supplementing that of a habit of obedience lies in the core of why this theory was
developed by the utilitarians
What is a command an expression by one person of the desire that another person should do or abstain from some
action, accompanied by a threat of punishment which is likely to follow disobedience
Commands are laws if two conditions are satisfied
1. They must be general
2. They must be commanded by an uncommanded commander
ISSUE: this theory of command, sanction, and sovereign omits an essential connection with morality
THUS: legal order is not to be simply identified with compulsion
AND SO: this system omits several characteristics elements of law
EXAMPLES:
1. It is wrong to think of a legislature as a group of habitually obeyed persons
2. Nothing which legislators do makes law unless they comply with fundamental accepted law-making rules
NOTE: these law-making rules are not commands habitually obeyed, nor can they be expressed as habits of obedience to
persons; they lie at the root of the legal system
THUS: what is missing from the Utilitarian system is the importance for the sovereign to accept these law-making rules
NOTE: the bulk of the population obeys the bulk, not the sovereign; they copy each other
EXAMPLE: a widely followed rule such as removing one’s hat while entering church would be obscured if this rule was
represented as habitually obeyed by the mass to specific persons
A Criticism of the Command Theory the picture that the command theory draws of life under law is a
relationship of superior to inferior, with the superior outside the law separated from those inferior within the law
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