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PHIL 2050
Michael Connor

PHIL-EXAM Review 1) Hart; There are six types of court cases; a) Civil: individual vs. Individual b) Civil: State vs. Individual c) Criminal: State vs. Individual d) International: States vs. States and sometimes international society vs. Individual e) Review: courts review law for constitutionality f) Reference: courts are asked to offer an opinion on the constitutionality of proposed law. Difference between Constitutional law and Convention; a) Constitutional law: recognized and enforced by the courts; written rules and judicial precedents; violation results in legal consequences b) Constitutional convention: not enforced by the courts; unwritten rules; violation results in political consequences R v. Manitoba Rights—Language Rights • S. 23 of the Manitoba Act states that all acts of legislation must be published in both French in English, when in reality they were only written in English • This caused problems within the legislation and federal/provincial governments because, by law, all laws written up to date in Manitoba were legally invalid. (no force or effect) • Although legally these laws must be denied as laws and must not be taken seriously, the courts claimed that this would cause “legal chaos”—a legal vacuum was created 2) Dworkin’s Critic of Positivism Three characteristics of positivism; a) It offers a pedigree theory of rules. b) The set of rules exhausts the law; in hard cases judges must exercise discretion. c) To be under a legal obligation is to be subject to a rule. Strong vs. Weak Legal Discretion; In some cases the rules of law run out because they are indeterminate. In such cases, judges must exercise discretion and create new law to reach a decision. a) Weak Discretion #1: Discretion as Judgment; often legal decisions cannot be made in a mechanical way. b) Weak Discretion #2: Having the Final Say; sometimes we mean by discretion only that someone is the final authority on some matter c) Strong Discretion: No Constraints; judges must make new law. Dworkin’s claim: Hart and other positivists have only shown that weak discretion exists in law, but not strong discretion. In other words, Hart (and others) have only shown that judges must exercise judgment, and might have the final say, but not that judges make law. The “Rights Thesis”; • Legal systems actually preclude judges from exercising strong discretion. Legal decisions enforce existing rights: ‘the rights thesis’. • Judicial decision-making in hard cases is not, contra the positivists, divided into two distinguishable stages (discovery of law, then creation of new law). The Difference between Rules and Principles; (i) Rules contain satisfaction-conditions, while principles do not. (ii) Principles have ‘weight’, while rules do not. (iii) Principles operate with terms such as ‘reasonable’ or ‘unfair’ which require interpretation. General Difference: rules apply in an all-or-nothing way, while principles contribute to but do not require any specific decision. Three Characteristics of Principles; (i) So long as they can be shown to explain or justify existing law, principles need not be explicitly recognized to be binding. (ii) They pervade all areas of the law. (iii) Principles are binding, but they are not valid according to any rule of recognition. “The origin of these as legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time.” (C166) Riggs vs. Palmer • Grandson kills grandfather for in heritance money • There was no rule or judicial precedent prior to this case, which caused its popularity because it challenged judges to make unprecedented decisions • The court’s decision was that no one shall profit from a crime and allow it to be legitimate • According to Dworkin the court reached out of its legal rules and adopted their own morality in a very private case, in which the courts did not create a new law, but simply discovered what true law required all along Henningsen vs. Bloomfield Motors, Inc [1960] • Plaintiff got injured by defendant’s product, but due to the agreement the defendant claimed that they are not held legally liable for injuries. • Therefore, we must be responsible for fully understanding a contract, but at the same time the contractor must also be liable to a certain extent for their products. • In terms of legal obligation: you cannot sell yourself into slavery—hence even in the sense of legal responsibility also has limits. ILP vs. ELP a) Inclusive Legal Positivism- b) Exclusive Legal Positivism- 3) Feminist Jurisprudence; Six Types of Feminism; (i) Marxist or socialist feminism: the construction of gender roles is not the primary issue in inequality; rather, inequality is gender and class-based (ii) Postmodern feminism: denies altogether the usefulness of general theories, and that men or women have natures or fundamental differences (iii) Relational feminism: women and men exhibit fundamentally different ethics: for women, an ethic of care is predominant; for men, it’s an ethic of justice. This difference is reflected, eg, in the contrast between (a) restorative justice and reconciliation approaches to crime and (b) retributive justice (iv) Liberal feminism: fundamental freedoms and equality in law must be extended to both men and women (v) Radical feminism: both law and society must be significantly altered to eliminate patriarchy; freedom and equality under law is not enough (vi) Pragmatic (legal Realism): individual issues and laws seize the issue, instead of change the picture. Feminism gives us two principles to re-examine the law; a) Structure of the law b) Particular Laws Catherine MacKinnon’s Definition of Law; 4) Dworkin’s View; Law as Integrity; • Integrity is the key, overarching value of law; it explains and justifies not just particular areas of law (criminal, contract, tort, etc.), but all of law. Law exhibits integrity when it can be seen to encompass a system of rules and principles which hang together in a unified, coherent way, and so can be seen to explain and justify past decisions and justify new ones • “Fairness” is evident because of the use of historical references or precedents to establish a consistent and equal judgement to all who stand before the courts and judges. The Chain-Novel Analogy; • “Suppose you’re given the first
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