Morgan Stephens
JURISPRUDENCE OUTLINE
SPRING 2010
NOWLIN
TABLE OF CONTENTS
§ 1 - Schools of Legal Thought
§ 2 - The Concept of Law
§ 3 - Introduction to Natural Law
§ 4 - John Finnis
§ 5 - Birmingham Jail and the Declaration
§ 6 - Non-traditional Natural Law
§ 7 - Natural Law and Adjudication
§ 8 - Oliver Wendell Holmes
§ 9 - Legal Realism: Llewellyn and Frank
§ 10 - Richard Posner and Legal Pragmatism
§ 11 - Balkin and Deconstruction
§ 12 - Hart on Adjudication
§ 13 - Sanford Levinson
§ 14 - Hutchinson: Forms of Legal Argument
§ 15 - Federalism
§ 16 - Case of the Spelunking Explorers
§ 17 - Implementing the Constitution
§ 1 - SCHOOLS OF LEGAL THOUGHT
1) Natural Law - morality
a) Divine/transcendent
b) Supernatural/metaphysical
c) Focused in morality
d) Deduced by reason
2) Positive Law - force; factual authority
a) A direct response to Natural Law
b) What’s the concern with jurisprudence?
i) Not values, not ethics, not morality - only confuses
c) Should be focused on facts
i) Empirical realities
ii) Descriptive sociology
d) Authority of law
i) Factual or empirical authority
ii) Force (Thomas Hobbes)
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(1) Command - general order to the populace backed by some kind of threat,
punishment, or sanction
(2) Police will stop you if you violate laws (force)
e) Not asking who’s right (moral), we’re asking who’s in control
i) Who can apply force
3) Legal Skeptics
a) Is the law really about rules at all?
i) Rules are illusions
ii) Courts create what law is
iii) Law can simply be defined as what courts do
b) The rules are really just input into the judge’s decision
§ 2 - THE CONCEPT OF LAW
1) Preface & Purpose - clarify law, coercion, and morality
a) Hart is a positivist
b) Hart’s purpose of writing the book? (Facts, concepts, and language)
i) Empirical Factual Inquiry into the law as it currently exist
(1) Descriptive Sociology
(2) What is the law we see around us
ii) We’re looking for clarification of the concepts and ideas of law
(1) What is a law; rule? - concept
iii) Clear understanding of modern legal systems by clarifying the concepts and
ideas
iv) Linguistic Analysis
(1) If we get a better understanding of words then we understand the
concepts in words, ideas, and social phenomenon
(2) Will give a clearer image of law
c) Descriptive sociology
i) Describes what is, not what ought to be (not prescriptive)
ii) Sociology refers to organized society
2) Chapter 1 - Persistent Questions
a) Perplexities of Legal Theory when asking “what is law”
i) Paradoxical questions
(1) Natural Law
(a) An unjust law is not a law
(b) An unjust law lacks moral authority
(2) Positive Law
(a) Constitutional law is not law, it’s the sovereign’s promise
(b) The only thing that counts as a law is a threat of punishment
(3) Legal Skeptic
(a) Statutes aren’t the law, statutes are just ingredients in the
judge’s decision
ii) What’s at the root of the paradoxical statements
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(1) This is not based upon any real ignorance about the law because most
people could give you a sketch of the legal system which Hart refers to
as a skeleton (Pg. 3)
(2) Relationship between law and coercion
(3) Relationship between law and morality
(a) Law and morality share terminology
(b) Duty, rights, justice
(4) Relationship between law and rules/habits
(a) Distinction between rules and habits
(b) Rules have a sense of normatively
(c) Predictability of punishment (convergent behavior)
iii) What are we trying to do given these sources of confusion?
(1) Hart’s not trying to give us a definition of law that answers these
questions
(2) Can’t define law like a triangle and rectangle
(a) Per genus et differentiam
(3) Railway analogy
(a) The various concepts of law do not fit together neatly
3) Chapter 2 - Building up Austin’s Theory
a) John Austin (1790-1859) - Command Theory (legal positivist)
i) Concerned with “an unjust law is not a law”
(1) Reactionary approach
(a) Extremely conservative
(b) Blackstone - since the law of England is in place, and because
an unjust law is not a law, then England’s law must not be
unjust
(c) Shrouds the existing law as divine commands of deities
(2) Radically approach
(a) Revolutionary War - because an unjust law is not a law, we
should stop recognizing English law because it’s unjust and
change or reform the legal system
ii) Austinian Approach
(1) We would have a clearer understanding if we only looked factual at
“what is law” and we would also eliminate the reactionary and radical
confusion
(2) Should be an empirical focus on law, not on morality
(3) We might also avoid the Blackstonian mistakes trying to show how the
current laws are just because they’re in place (really just historical
accidents)
(4) Pessimistic nature of human nature (like Hobbes)
(a) Violence, force, and fear of death actually dictates human
relationships (orders backed by threats)
(5) Questions regarding the justice and injustice of law should be left to
ethics, not the discipline of jurisprudence
b) Similarities between Hart and Austin
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i) Agree that the study of jurisprudence is about facts, an empirical study and
trying to describe the law without using morality
ii) The idea law that an unjust law is not a law is nonsense in Austin’s opinion
c) Hart on Austin’s Theory
i) Gunman at large hypothetical
(1) Hand over your money, or I’ll kill you
ii) How do we alter it to look like a legal system? (Hart building on Austin)
(1) General Orders
(a) Legal system has general orders toward of person and classes
of conduct
(b) The gunman is an example of a specific threat
(2) Standing Orders (Persistence)
(a) General habit of obedience
(i) Legal system has orders that stay around
(ii) You need voluntary cooperation, or involuntary
cooperation if needed (think about Saddam)
(b) Gunman’s order goes away when he leaves
(3) Need a sovereign
(a) A sovereign has no habit of obedience to anyone else but
receives obedience within his territory (habitually obeyed, but
obeys no one else)
(b) Supreme and independent of any other legal system
(c) Emphasis on coercion and violence
4) Chapter 3 - Dismantling the Command Theory
a) Content of Laws
i) Primary rules of obligation vs. Secondary rules -power conferring
(1) Primary
(a) Impose duties/obligations
(b) Ex - Criminal laws and torts
(2) Secondary
(a) Power conferring rules (rules about the primary rules)
(i) Private conferring rules - wills and contracts
(ii) Public conferring rules - set up courts and legislatures
(b) Don’t impose duties/obligations and don’t look like commands
ii) Why is Austin’s Theory incomplete?
(1) Hart’s Attack
(a) Hart believes Austinians miss something important about the
content of laws
(b) Primary rules, that impose obligations on people, work well
under the Command Theory
(c) Secondary rules don’t look like duty imposing rules because
there are no orders backed by threats
(2) Austinian Response
(a) Nullification, in wills or contract law, is a kind of sanction or
threat and looks like
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(b) Ex - order is that you must make your contract in a particular
way, or we will coerce you with a threat of nullity
(3) Hart’s Rebuttal
(a) Nullity is not a sanction
(b) Purpose of primary rules is to shape peoples’ conduct
(i) Law to pay taxes = make people pay
(ii) Law against murder = deter killing
(c) However, secondary rules are different
(i) Law that tells us what we need in order to have a legally
enforceable contract = not trying to deter people from
making promises
(ii) Just used for a guide for people’s conduct
(4) Austinian Rebuttal
(a) Secondary rules are fragments of laws
(i) “If clauses” or “antecedent clauses”
(ii) Secondary rules are necessary for primary rules to be put
into place
(5) Hart’s Response
(a) No one believes that law of contracts is not law
(b) It’s not parasitic on kind of law
(c) However, there is no test as to who’s right on this issue because
we’re not trying to be dogmatic, rather, we’re simply trying to
find clarity about the law
iii) Guide vs. Goad
(1) Primary purpose of law
(a) Guide for the puzzled person to comply with the all
(b) Hart believes this is the primary purpose
(2) Ancillary purpose of law
(a) Sanctions, added because some people won’t comply
(b) Command Theory puts the goad (sanction) at the center of law
b) Range of Application
i) Austinians theory can’t explain how the sovereign can limit himself legally
(1) They try to separate sovereign’s official capacity and private capacity
(2) Looking into the mirror and pointing the “gun” at himself as his own
subject (embarrassing legal fiction that Hart believes doesn’t help us
understand the law at all)
(3) Austinians recognize that a constitution placing limits on the sovereign
is inconsistent with this approach
(4) Therefore, they conclude that constitutional law is not law - more like
the sovereign’s moral promise
c) Mode of Origin
i) English courts often recognize custom as Law
(1) However, courts recognize often recognize custom as law just like a
statute or ordinance
(2) Austinian theory cannot explain this
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(a) A custom isn’t really created by anybody to look like an order
(mode of origin issue)
ii) Austinian Response to custom
(1) Tacit approval - custom’s not law, until judges make it so and the
legislature doesn’t overrule it
(2) Statute’s are law because they’ve been passed, however, custom is just a
part of the decision making process
iii) Hart’s Response
(1) Sovereign can delegate authority without giving tacit orders
(2) Custom is in fact law, and the judges are just applying it - no need to
wait for tacit approval from the legislature
5) Chapter 4 - Sovereign and Subject
a) Continuity of Law
i) Cannot be a habit of obedience to new sovereign
(1) Ex - Rex I dies and Rex II becomes king
(2) However, there can’t be a habit of obedience to Rex II until he has
actually been in place long enough to form that habit
(3) Means there will be no legal system in place during the transition
ii) What does Austinian command theorist have trouble with?
(1) Can’t explain peaceful legal transitions
(2) Not habits, but acceptance a rule explain the continuity of law
iii) Normative acceptance of a rule
(1) Oughtness - ought to do, must not break rule (normative)
(2) Internal point of view
(3) Criticism from breaking a rule, but not for breaking a habit
iv) How does this apply to Rex?
(1) Social group accepts the rule that Rex II becomes king
(2) Accepted from the internal point of view with normativity as something
that we ought to be following and gives us a reason for obeying Rex II
b) The Persistence of Law
i) No habit of obedience to a long dead king, but the laws enacted under his rule
are still obeyed (unless repealed)
ii) Can be explained as normative acceptance of a rules, not through habits of
obedience
iii) Habits don’t explain very much
(1) Trying to force continuity and persistence into a habits of obedience
framework and you’re probably creating legal fictions
(2) Much simpler is acceptance of rules
c) Legal Limitations on Legislative Power
i) Every modern legal system places limits on the sovereign
(1) Austinians believe that there can be no limits on the sovereign and try
use an embarrassing legal fiction to make it work
ii) Normative acceptance of rule makes this more understandable
(1) Power conferring rules accepted through and internal point of view by
social group
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d) The Sovereign behind the Legislature
i) Austinian response to fact that sovereign is under legal limits
(1) Real sovereign is the people and it’s the people that are issuing orders
backed by threats to the legislature
ii) Hart’s Response
(1) This still doesn’t explain legal limits of the sovereign, because we just
shifted who’s the sovereign
(2) Still have to explain legal limits on the sovereign if the people are
sovereign (American’s looking mirror ordering themselves?)
(3) This is better explained by normative acceptance of a rule
6) Chapter 5 - Law is the Union of Primary and Secondary Rules
a) Fresh Start
i) What’s the key to the science of jurisprudence?
(1) Union of primary and secondary rules
(a) Primary - impose duty/obligations
(b) Secondary - power conferring rules; about the primary rules
ii) What does Hart mean that this is the “key”?
(1) Union of primary and secondary rules and their complex interactions
between the two gives us the greatest conceptual clarity to
understanding modern western legal systems’ complexity in the simplest
way
(2) Never trying to give a definition
iii) This is not a definition of law, but this analytical framework for thinking about
legal systems is the way to go
b) The Two Theories
i) Austinian Command Theory
(1) Sovereign and his subjects
(2) General orders
(3) Standing orders
(4) Habit of obedience
ii) Hart’s Theory!!!
(1) Social groups (not sovereigns, some subset of people)
(2) Acceptance of set of rules
(a) From the internal point of view
(i) Accept the rule as binding on themselves
(b) Recognizing those rules are normative (ought and ought not)
(c) Primary rules of obligation - impose duties
(d) Secondary rules - power conferring
c) Obliged vs. Obligated
i) Obliged
(1) Implies force or coercion
(a) Focus on the likelihood of a sanction which induces
compliance
(b) External point of view- just looks to external behavior
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(c) If you can predict a severe enough sanction the party will
comply
(d) Ex - Gunman (you feel obliged to give your wallet)
ii) Obligation
(1) Social group accepting the rules creates obligations
(a) From the internal point of view of the social group, who has
accepted some rules, then you have an obligation under the rule
(b) Doesn’t mean someone could sanction you or that there’s a
habit of obedience
iii) Acceptance of a rule by a social group (obligation) vs. habits, sanctions,
psychological feelings of guilt or remorse (obliged)
(1) Connections (correlations)
(a) A social group accepts a rule, then following the rules becomes
a habit, and tendency to create sanctions, but acceptance comes
first
(b) If people accept a rule, they will likely have psychological
feelings for breaking the rule
(2) Differences - Frenchman comes to U.S. and runs traffic light
(a) When he goes back to France, he has no habit obeying the
Mississippi traffic laws
(b) He’s beyond any sanction because France won’t extradite him
for this
(c) He might not have a psychological feelings associated with
violation of the traffic rule he broke
(d) He also does not accept the rules
(i) However, the social group in Mississippi accepts the
rules and we believe that he has a legal obligation to pay
his ticket
(ii) We can’t oblige him to pay the ticket with threats of a
sanction
d) Kinds of Secondary Rules (Power conferring)
i) Rule of recognition
(1) Defined
(a) The ultimate rule, that tells us what the other rules are
(b) In place to deal with uncertainty
(2) Primary legal system with only primary rules
(a) Maybe they have a sense of what’s right/wrong
(b) Their rule of recognition might be the chief/head guy
(c) But it’s not a legal system
(3) Complex legal system would be the U.S. Constitution
(a) The rule of recognition is the U.S. constitution
(b) It includes the rules of change in the legislative authority
conferred on congress to act with the president to pass statutes
(c) These create primary rules of obligation
ii) Rule of change
(1) In place to adapt/change the primary rules with social changes
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(2) In a modern western legal society, it’s Congress’ general legislative
authority under Article I
iii) Rule of adjudication
(1) In place to apply the rules and deal with questions of enforcement
(2) We’re going to have situations in which persons violate the rules and
we’ll need something in place to enforce those rules
e) U.S. Constitution
i) Has all three kinds of secondary rules
(1) Rule of recognition
(2) Rules of change
(3) Rules of adjudication
ii) Adjudication + Recognition
(1) Article III for Supreme Court hear cases arising under the Constitution
(2) Authority to interpret and apply the rule of recognition
iii) Change + Adjudication
(1) Congressional legislation concerning the Supreme Court
(2) Judiciary Act of 1789 set up Supreme Court
(3) Primary rules of obligation come from the rules of change
(a) § 1983 who violate the rule of recognition
iv) Notice how the Command Theory cannot do this at all
7) Chapter 6 - Foundations of a Legal System
a) Rule of Recognition and Legal Validity
i) Rule of recognition is the criterion, standard for legal validity
(1) Legal validity of constitutionality; Constitution is used to test was laws
are valid the U.S.
(2) Not a statement about sanctions, efficacy, or enforcement, rather it’s a
statement about social group acceptance of a rule
ii) Ex - 1862 and we’re in Columbia, SC - we ask Lincoln what’s the valid law in
South Carolina? He would say it’s the U.S. Constitution - an accepted rule that
generates the authority
(1) Secession is illegal and South Carolina cannot legally remove itself from
the U.S. - it’s just a state in rebellion
(2) The Constitution is legally enforceable, but it’s not a statement about the
habits, sanctions, or feelings of those feelings involved
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iii) Rule of recognition is the supreme and ultimate rule
(1) Supreme because it’s the top of the legal hierarchy
(2) Ultimate because it’s the last rule
(a) You can trace any law back to the U.S. Constitution
iv) Constitution’s legal validity?
(1) If the U.S. Constitution is the standard for which we determine whether
something is constitutional or unconstitutional and we cannot say
whether the Constitution is constitutional or unconstitutional
(2) It’s the standard because we say it’s the standard (it’s the
criterion/standard for measuring other things)
(3) Can’t presume that the rule of recognition is valid either (I.e., the Paris
meter bar)
v) If we can’t talk about rule of recognition and its legal validity, what COULD we
talk about? Hart doesn’t want to talk about these, just that you could
(1) Merits
(2) Justice/injustice
(3) Factual existence
(4) Compare the U.S. Constitution to the Confederate Constitution
b) New Questions
i) How do we classify the rule of recognition?
(1) Law - do we accept the Constitution?
(a) Internal point of view
(b) Ultimate and supreme criterion of legal validity
(c) Although it cannot itself be valid or invalid, but can still be law
(i) It’s the “highest law”
(2) Fact - it simply exists
(a) Existence of rule of recognition is purely a matter of social fact
(i) All the other laws in the system we can classify as
legally valid because they ultimately flow from the rule
of recognition
(b) Empirical
(i) No one recognizes the Confederate Constitution because
no social groups accept it
(ii) U.S. Constitution exists because it’s recognized
c) How to tell that a Legal System Exists
i) It has a rule of recognition
(1) Whether it exists turns on the existence of social facts
(2) What social facts do we need to determine whether a rule of
recognition exists? Not just an on/off switch
(a) Officials - obedience and active acceptance
(i) Obedience and acceptance that involves the active use of
the rules to engage in acts of government
(ii) Congress uses its Article I powers to create new laws
(iii)Judges use their Article III power to rule on cases
(b) Ordinary citizens - just passively obey
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(i) Passively accept the rules - just need to obey the primary
rules of obligation and recognize the authority of
government
(c) External class - obey because of sanctions
(i) Obey, if it all, because they’re concerned about being
sanctioned for disobedience or whatever (criminals)
(ii) Ideological extremes who don’t accept the authority of
the government (zealots) and want to set up a separate
form of government
d) Pathology (sickness) of a Legal System
i) Social group disagreement, disputes about the rule of recognition
(1) Government officials who are supposed to be actively applying the rules
are not because they cannot agree - this leads to a fundamental
breakdown in the legal system (leads to revolution)
(2) There’s always some low level disputes
ii) Civil War - a fundamental breakdown about what is the ultimate law
(1) South believed that because the states entered into the Union under a
ratification, that they should be allowed to deratify as well - once the
Constitution is deratified then there are independent republics
(2) The North believes that South Carolina cannot legally secede - the rival
statement is that South Carolina can legally secede
iii) Legal vs. Factual Statements
(1) Legal statements from internal point of view about the rule of
recognition are not rivals to factual statements (just on different planes
or dimensions of analysis)
(2) A factual statement can render a legal statement ultimately pointless
(a) I.e., a modern British person not legally recognizing America’s
existence (facts trump legality)
(3) What’s the rival statement of Lincoln’s statement that South Carolina is
part of the Union and may not lawfully secede?
(a) South Carolina can legally secede
iv) Hart is criticized because he only recognizes this one form of pathology
8) Chapter 7 - Critiquing Legal Skeptics
a) Legal Skeptics
i) Paradoxical statements
(1) Laws are not rules, but what courts do - a prediction
(2) A statute is not a law, it’s just a source of law
ii) Charles Evan Hughes - “We live under a Constitution, but the Constitution is
whatever the courts say it is.”
b) The Open Texture of Law - Ex: “No vehicles in the park”
i) Settled core
(1) Everyone agrees about how to apply a rule - easy cases that judges can
resolve without any creativity
(2) “Vehicle” connotes a settled core of meaning which includes cars,
trucks, and tractors (a common sense understanding)
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(a) If a judge concluded that the word “vehicle” didn’t include
automobiles, then we’d say he obviously screwed that one up
(3) “Vehicle” would not include walking or running through the park - fits
the dictionary definition, but the statute surely doesn’t mean that people
cannot use their feet in the park
ii) Open texture
(1) When there’s ambiguity, judges have discretion
(a) Whether a bicycle is a “vehicle” under the statute
(b) Remote control car
(2) How would we resolve these cases?
(a) First, ask ourselves what is commonsense purpose to the
statute?
(i) Peace and tranquility
(ii) Safety
(iii)Physical integrity of the park
(b) Hart doesn’t spend much time on adjudication - so we don’t
really know how he distinguishes the tough cases
(i) Can be very complex - I.e., guns “vehicles” for bullets
iii) Rules vs. Precedents
(1) Rules (statutes)
(a) Maximum language for guidance
(2) Precedents (cases)
(a) Minimum language for guidance
(3) Ex - wearing your hat in church
(a) Could tell your child to take your hat off when you walk into
church (Maximum)
(b) OR tell your child “Do what I do” (Minimum)
(4) However, this distinction isn’t as sharp as it first appears
(a) Because cases (examples) help us to better understand the rules
(b) We often find statements of rules within precedents (tests)
iv) Formalists vs. Skeptics - extremes
(1) Formalists: hold that the law is all settled core and no open texture
(a) Deny or minimize the open texture
(i) The law has basic points and if we take the core case, we
can make out the rules
(b) Hart, not a formalist, believes there must be an open texture as
the core doesn’t settle everything
(i) There’s an uncertainty of facts - they’re going to change
and there’s no way to predict what will happen
(ii) Formalism is analytically incorrect, but even if it wasn’t,
it still wouldn’t provide officials with the flexibility they
need to respond to changing facts and values
(c) Hart describes formalism as “vice” because most people now
accept that law has an open texture
(i) Question now becomes “to what extent are the legal
skeptics right”?
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(2) Legal Skeptics: the law is just open textured with no settled core
(a) Rules are not about laws - it’s about judicial decision
(i) Ex: No vehicles in the park does not create a rule that
binds courts, it’s a prediction
(b) Hart believes there must be some settled core meaning to all
rules
c) Hart’s argument against Legal-Skeptics
i) It takes rules create courts (secondary)
(1) It takes rules to create court and to know what a court is, there has to be
rules actually making them
(2) Cannot have an infinite regression of courts that create other courts eventually we would need some rule that created the first court
ii) Courts display internal point of view
(1) Judges use the law as reasoning and justification for reaching their
conclusions (just like the police officer writing the ticket)
(2) Judges accept the normativity of rules, not as a matter of habit, but
because they believe that rules have legitimacy to guide their behavior
and use it as a justification, not as a prediction
iii) Practical function of rules in the legal system (skeptic’s response)
(1) If the skeptics are denying that there’s a settled core, and the formalists
deny that there’s an open texture, what does Hart’s first and most
fundamental response?
(a) Law has both an open texture and huge settled core
(2) Hart says the open texture looks so big because those cases fall outside
of the settled core
(a) Legal skeptics are wrongly focused on appeals courts in the
U.S. Supreme Court operating in the open texture
(i) These are the hard cases where the open texture tends to
predominate
(b) Settled core cases are quickly disposed of at the trial level
(i) In fact, the vast majority are handled this way
d) Finality and Infallibility in Judicial Decisions
i) Finality (highest court of appeal) does not equal infallibility
(1) Skeptics claim that there’s nothing to stop a judge from making a bad
decision; the key to understanding law is predicting what the courts will
say, courts can’t be wrong
(2) If the Supreme Court says “Up means down or left means right” there’s
no way to overrule that decision - can’t appeal and therefore infallible
ii) Hart’s Response
(1) Ex - there are 200 rules for a game, but the 201st rule says that the
umpire gets to interpret the other 200 rules
(a) Legal skeptic - 201st rule wipes out the other 200 rules and
replaces them with umpire’s discretion
(2) Hart - the 200 rules are the settled core and the umpires will follow the
settled core from the internal point of view and the only question is
official statements vs. unofficial statements
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(a) If the umpire decides that there should be four strikes rather
than three - can’t do this says Hart (umpire has gotten the rule
wrong)
(b) Authoritative statements vs. unauthoritative statements
(3) There is a core meaning to the law and judges can be wrong about that
(4) Existence of a final authority doesn’t mean that the rule is eliminated
(5) Practical finality is not the same as substantive infallibility
(6) Acquiescence of the legislature in misinterpretation of the statute can
mean that bad decisions because right decisions form the passage of time
iii) Is there right or wrong areas in the open texture?
(1) Hart believes if we adhere to the settled core, then we have the right
answer and it we don’t then we don’t have the right answer
(2) However, in the open texture, there are not right or wrong answers,
just answers (like moped in the park)
(3) Does this fit with the internal point of view of judges?
(a) Depends on which judge you ask
iv) What do legal skeptics miss?
(1) It’s an American movement coming from the late 1800s focusing on the
higher courts of appeal
(2) The problem is that the lower courts employ the settled core all the time
for the easy cases
(3) Open texture on top and settled core on bottom
e) Rule of recognition and settled core vs. open texture
i) Settled core - right or wrong (a truck in the park)
ii) Open texture - just answers (cannot be right or wrong) (a moped in the park)
iii) The Rule of Recognition (Constitution) has both the settled core and open texture
(1) It would depend on the Constitution whether it was more settled core or
open texture
(2) Montana and New York get two senators = settled core
(3) Whether the 1st Amendment gives a person to burn American flag =
open texture
iv) The Constitution has to create the courts who then find their interpretive
authority in the settled core which allows them to settle the meaning of the
Constitution in the open texture
(1) Interpretive authority Article III = settled core
v) What if this authority is not the settled core, but rather in the open texture that
gives the courts the authority to interpret the open texture?
(1) The Court just says it and the people accept it
9) Chapter 8 - Critique of Natural Law Theorists
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a) Principles of Justice
i) The very concept of justice (a moral concept) is deeply connected with the law
ii) What is meant by the term justice?
(1) Hart defines justice as fairness which boils down to equality (treat like
cases alike)
iii) We’ve got to think about the relevant characteristics
(1) Relevant factors
(a) The right to vote
(b) For minors we are justly denying, fairly denying, and equally
denying them the right to vote
(c) Only Americans
(2) Previous relevant factors
(a) Race
(b) Sex
(c) Property ownership
(3) Compensation/correction
iv) The law deals with classes of person and classes of conduct (so does morality)
(1) Justice as moral concept in law enters 2 different ways
(a) Justice of the law (External)
(b) Justice according to law or application of the law (Internal)
(i) Does the law that exists being correctly applied?
v) Principles of Natural Justice
(1) Let no one be a judge in his own case
(2) There’s not going to be a just application of the law
b) Moral and Legal Obligation
i) How they overlap? Hart doesn’t want to deny these connections
(1) Both are understood to be binding obligations
(2) Pressure to conform
(3) Serious things - things about violence, marriage, sexual conduct, etc.
(4) Recurring issues in social life
(5) Minimum contributions to social life
(6) Necessary to our social life
(7) Routinely require some kind of sacrifice
(8) Ex) you get angry, but you never think about killing anyone
ii) What are the differences between legal and moral obligations?
(1) Importance - Malum men sea vs. Malum prohibitum
(a) Many legal obligations that have no moral obligation like where
you have to park on campus
(2) Moral obligations have an immunity from deliberate change
(a) Morals evolve slow, but law can change very quickly
(3) Internal aspect with subjective culpability
(a) There is strict liability in criminal law
(b) It would be weird to think of strict liability in morality
(4) Form of social pressure
(a) Morality - make you feel bad, shame, ostracize
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(b) Law - speeding tickets are about the money, not making you
feel bad
c) Moral Ideals and Social Criticism
i) Morality has ideals or aspirations
(1) You need to be a better person (something to strive for)
ii) The legal system is asking you just to make the bare minimum
iii) Personal moral ideal not directed toward society at all
(1) Adopt the ideal of the scholar - not societally directed
10) Chapter 9
a) Natural law and legal positivism
i) Natural law is based on a confusion of physics and meta-physics
(1) Law of gravity - law of physics (descriptive)
(2) Law that you shouldn’t kill people - meta-physical
(3) Treating these laws as the same leads to confusion
(4) Descriptive (what things are) vs. Prescriptive (what we should do) and
these are fundamentally different categories
ii) Hart wants to get to the “Core of Good Sense” in the Natural Law
(1) Remove all of the metaphysics
(a) Nothing about right or wrong or the supernatural
(b) Hart only wants to describe sociologically the way humans
interact - that’s his enterprise
(2) End/telos/finis (individual and collective survival)
iii) There is some end, purpose, finis, or telos to the human condition
(1) We can describe what most people value at a bare minimum without
doing any metaphysics
(2) By contrast a rock doesn’t think of itself as having an end purpose
(3) Survival is almost universally recognized as the end purpose or telos of
human condition (we don’t find many suicidal societies that last very
long - because they kill themselves)
iv) Minimum contents of natural law
(1) Survival aim and we think about social facts regarding the human
condition what those things produce together is the minimum content of
natural law
(a) Every society is designed to replicate itself to survive
(teleological)
b) Minimum Content of Natural Law - natural necessities of wanting to survive will
replicate the last three limits
i) Human Vulnerability
(1) We need rules of forbearance from violence in order to survive
(2) If we had exoskeletons and could beat up on each other all day without
causing any damage then we wouldn’t need these rules, but we don’t
have exoskeletons
(3) If we want to survive, we must have some core restrictions on violence
ii) Approximate Equality (Physical)
(1) Even the strongest person is subject to sanctions that could be imposed
on him by everyone else in society
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(2) Everyone has an interest in banding together to protect themselves from
the people who are strongest and more predatory
(a) This is why we have prisons
(3) It’s easier for people to bind together and form a system of organized
coercion (explains why we have police and prisons)
iii) Limited Altruism
(1) Human aren’t completely evil, not completely harmonious either
(2) We need some kind of law to live together in common
iv) Limited Resources
(1) We have to create our own food supply; requires work
(2) Property, contract rules are based on limited resources
v) Limited Understanding and Strength of Will
(1) Be need sanctions to make our legal system work
(2) Some people will stand in the way of the rules and we need sanctions in
order to deter that behavior
c) Legal Validity and Moral Value - Positivists won’t deny these
i) Power and Authority
(1) The power of legal system is connected with morality
(a) A legal system with no morality will be unstable however there
have been plenty legal systems that use coercion and they
values don’t reflect the average citizen’s values
(2) If there’s a radical mismatch between the values of society and the value
of the citizens then the system will become unstable
(3) However, Hart doesn’t want to overstate this point
(a) While this does increase stability in western democracy, are
plenty historical examples of legal systems that use coercion
and don’t value the values of the citizens
(b) Think of Iraq - the values of the system don’t reflect the values
of the citizens
ii) Influence of Morality on Law
(1) Morality of social group influences morality of a legal system; nobody
(even positivists) could deny that the stability of legal systems depends
in part on conceptions of morality and fairness
iii) Interpretation
(1) Judges look at the legislative source of the law in making their decisions,
but those decisions often involve choices between moral values
(2) However, Hart thinks it’s ridiculous that when there’s doubt as to the
meaning of the law that morality always provides a clear answer
iv) Criticism of the Law
(1) Most criticism of legal system of their state is often couched in moral
terms when people seek change
(a) I.e., same sex marriage
v) Principles of Legality and Inner Morality of Law
(1) This is Hart’s Debate with Lon Fuller
(a) Doesn’t mention Fuller at all (inner morality of law)
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(2) What is the inner morality of law as a necessary connection between
morality and law?
(a) Hart says law is about rules and we’re trying to guide people’s
conduct through those rules
(b) Therefore, citizens need to
(i) Understand the rules
(ii) Be able to comply with the rules
(iii)Rules must be perspective (no ex post facto)
(c) These are NOT just facts about guiding human behavior, they’re
also connected with the moral aspect of the rule of law and the
moral constitutional concepts of the U.S. like “Due Process”
(3) Lon Fuller says that these 3 rules are the inner morality of law
(a) Basically, the rules we use to guide human behavior have a
moral concept built into them
(b) Must publish the rules and make them clear for people to
understand
(4) Hart’s Response to Fuller
(a) Hart is willing to concede that there is some connection between
law and morality, but “it is unfortunately compatible with very
great iniquity (evil)”
(b) Hart is thinking about “Rule of Law Nazis”
(i) Nazi’s can publish rules that are understandable and
perspective
(ii) Imagine how many evil legal systems can adhere to the
rule of law and due process
(c) But again, Hart doesn’t want to deny that there is some
connection between law and morality (I.e., how moral values
might influence legislation or judicial interpretation, etc.)
(i) He STRONGLY denies that an “unjust law can still be
a law” - that’s just wrong
(ii) The idea that law’s validity turns on morality is
mistaken
d) Legal Validity and Resistance to Law
i) “Unjust law is not a law”
(1) Hart will not concede that there is such a connection between law and
morality such than an unjust law is not a law
(2) The thought that legal validity turns on morality is completely wrong
ii) Hart is saying that this is a contradiction
(1) Before you said it was unjust, you called it a law
(2) We get the most clarity if we reject this proposition and say “An unjust
law is a law that is unjust” and think about the first statement as a matter
of ethics
iii) Legal validity turns on the rule of recognition, not morality
(1) A social group accepts the union of primary and secondary rules, those
rules are valid under the rule of recognition (if they meet the criteria) that’s how we know something is a law or not as matter of positive law
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(a) Its justice/injustice or morality/immorality is a separate question
(2) Hart’s concerns over an “unjust law is not a law”
(a) Ex - if we ask whether a rule is valid under the rule of
recognition, and then ask whether it’s just or not - if we
conclude that it is unjust what would that help us see?
(b) Costs of non-compliance
(i) Because you’re inclined to violate unjust laws when you
face unjust laws, then you won’t reliance the costs of
your non-compliance with the rule of recognition
(ii) Leads to instability in the legal system
(c) If we violate the law, do we submit to punishment or do we
use violence?
(i) Submit - Socrates and Martin Luther King Jr.
(ii) Violence - American Revolution
(d) Following “Unjust Laws” (like the Nazis)
(i) Want to think carefully about retroactive punishment
1. Doesn’t mean that we shouldn’t to punish
people retroactively
(ii) We want to say to a Nazi, what you were doing was
valid under your rule of recognition and no should be
retroactively punish you anyway?
11) Chapter 10: International Law
a) Is International Law really Law?
i) Introduction
(1) Hart doesn’t want to follow convention and say international law is law
(2) Rather, what are the reasons that people doubt that this is a form of law
are those reasons such that we should call it something else?
(3) No secondary rules
ii) Obligations and Sanctions
(1) Austinian Doubters - no sanctions in international law
(2) Hart’s Response
(a) Hart says social group accepting rules is law, so no need for
sanctions
(i) More powerful nations won’t accept sanctions
(b) It’s enough that there’s a sense of obligation but how do we
explain where the sense of obligation comes from?
(i) Social group of nations accept the rules, but they don’t
follow up by implementing sanctions because the more
powerful nations would rather enforce things themselves
and not rely on a organized, international police force
(c) Not possible to organize sanctions among nations because
inequalities of power between nations
(i) It’s in the interest of larger countries not to accept the
rules of smaller countries
iii) Subjects as Sovereign
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(1) Austinian Doubters - international law cannot be law because the
subjects (nations) each consider themselves as sovereigns
(a) For this reason, an Austinian Command Theorist believes that
international law cannot be law
(2) Hart’s Response
(a) Well if you’re not an Austinian dogmatic Command Theorist,
then it doesn’t matter if the nations consider themselves
sovereign
(i) Plus, there’s no test to determine sovereignty - varying
degree of independence
(b) Key - If the sovereigns that make up the international realm
as a social groups accept rules that include legal limits on
their sovereignty and independence - the fact that there’s no
sanction is irrelevant to their obligation
(i) Just like a domestic social group that accepts the rule of
recognition like the Constitution which in turn creates an
obligation
iv) No Secondary Rules
(1) Hartian (not Hart himself) Doubters - no secondary rules
(a) If you think about law as a union of primary and secondary
rules, not sure that international law has secondary rules, no
power conferring rules that create world legislatures, world
courts, etc
(b) Lack of rule of recognition, change, and adjudication in
international law
(i) No world constitution or world legislature
(ii) Pacta sunt servanda - promises must be kept
(2) Hart’s Response
(a) The union of primary and secondary rules was never meant to
be a definition of law or of the legal system
(i) Rather the union of primary and secondary rules is the
key to the science of jurisprudence because it provided
the best conceptual clarification
(b) Primary rules of obligation can by themselves be law if the
social groups accept the rules, and they look like law and not
morality then there’s no reason why we wouldn’t want to call
those rules as law
(c) International law is a primitive pathological system where rules
are constantly broken and there is no punishment for it (in that
there’s no clear constitution or set of rules)
(d) But stronger countries will try to enforce them so as to prohibit
smaller countries from setting secondary rules
§ 3 - INTRODUCTION TO NATURAL LAW
1) Introduction to Natural Law
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a) Traditional natural law
i) Natural law theorists focus on morality and use it to make sure that we have the
correct kinds of law
ii) Objective is to learn what we can do to make our legal system a better legal
system from a moral standpoint
iii) Natural law is not descriptive, it’s prescriptive (what we should do)
iv) Foundations
(1) Divine origin - Beyond the natural realm, exists some realm of divinity
and we have an objective moral order with a divine origin
(a) Supreme being has created a moral order where thinks are
objectively right or wrong
(2) Metaphysical rules on par with physical rules
(3) Religious revelation, through reasoning not scripture, may provide
points of guidance
(4) Self-evident - All men are created equal (not obvious to everyone)
2) Natural Law Tradition Handout
a) John Finnis
i) Positive law is supposed to be close to natural law, but it’s an institutional
question as to who decides how natural law should be reflected
ii) The debate is not between positive and natural law, but between the separation of
power
(1) The courts should make sure the positive law reflects the content of the
natural/moral law
iii) A positivist believes that the legislatures should make sure the natural law
principle of equality is reflected
b) Robert George
i) George builds on Finnis’ thought
ii) The natural law does not tell us how to make positive law conform to natural law
(1) It doesn’t say we need separation of powers or federalism
§ 4 - JOHN FINNIS
3) Finnis On Unjust Laws
a) Hart thinks that the focus of natural law is on unjust law
i) However, Finnis says unjust law, or how we respond to legal injustice is
important, but it is just a subordinate concern
b) The central concern of natural law is engaging in moral analysis to guide the
creation of positive law
4) Types of Injustice - ways in which positive law can be unjust
a) Intent
i) An improperly motivated law can still be compatible with justice and promote
the common good
ii) A ruler’s use of authority is radically defective if he exploits his opportunities by
making stipulations that favors himself over the common good or out of malice
against a person or group
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(1) I.e., George III had a tyrannical intent with respect to the colonies
(mentioned in the Declaration of Independence)
b) Acting outside of Authority (Ultra Vires)
i) An office holder may exploit his opportunity to affect people’s conduct
ii) I.e., we have the separation of powers and Congress exercises a judicial power or
we have a federal system and the states use powers reserved for the national
government and vice versa
c) Manner and form
i) Due process of law (procedures) and rule of law
ii) I.e., an Congress passes a law that didn’t get support from both houses or passing
an ex post facto law (person hasn’t been given fair notice to conform his
conduct)
d) Substantive injustice
i) A catchall category
ii) Distribute resources unjustly to a class no entitled to it while denying it to others
iii) All sorts of laws that violate basic human rights (segregation laws)
5) Effects of Injustice on Obligation
a) Sanction in the event of non-compliance (Austinian sense of obligation)
i) Never a denial in the natural law camp that there could never be a sanction under
an unjust law
ii) Finnis says we can’t stop here, like the Austinians did
b) Social group acceptance of the rule (Hartian sense of obligation)
i) Finnis calls it the “Say so” - the social group says there’s a rule
ii) Why do I have this obligation? Because some social group said so
iii) Hart stops analyzing here yet Finnis believes that there are two more types of
obligation in order to fully understand obligation and what is meant by an unjust
law is not law
c) Moral obligation to follow our legal obligation
i) We all have a prima facie (defeasible/not absolute) moral obligation to follow
our legal obligation as that flows from the social group’s say so
(1) The moral obligation will be rebutted when the laws are unjust
(2) If the law fails to promote justice, then that eliminates your moral
obligation to follow that legal obligation
(3) Doesn’t mean we should violate every unjust law
d) Collateral moral obligation
i) We have a collateral moral obligation to follow some unjust laws in order to
preserve a just legal system
ii) If a legal system overall promotes justice, then maybe particular unjust laws
should be adhered to the degree necessary to promote the justice of the overall
legal system
(1) If everyone violates laws that they consider unjust, then that will lead to
civil unrest and call into question the authority of the law
6) Meaning of “unjust law”
a) Most common formulation - an unjust law is a corruption of law (Aquinas)
i) We want to know what this means to see whether Hart simply misunderstood
(Hart’s reputing the straw man)
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ii) A law that is not corrupt promotes justice, and a law that is corrupt does not
promote justice
b) Stating that an “unjust law is not a law” is just a dramatic overstatement
i) Remember the heart attack medicine example where the doctor gives you
medicine to prevent heart attacks, but it actually causes them
(1) You might dramatically say that this isn’t medicine, it’s poison
7) Authority of Rulers
a) Anarchy is bad because there’s nobody to protect your natural rights
b) Law and order is good
i) Unanimity is impossible to get so we substitute the recognition of authority
(government and laws)
ii) Authority flows from the ability of a person or institution to get others to follow
their rules
iii) Ex - If a bomb went off in D.C. - as a moral matter, whoever can prevent anarchy
has the moral authority to govern
(1) Not a privilege to govern in the natural law tradition, but a burden or
responsibility to care for other people
c) Caveats to this theory
i) Accept rules already in place
(1) Rules are already in place about authority and so we should generally
follow these rules (a strong thought)
ii) Reasonable in Recognizing Authority
(1) We should only recognize authority, when the authority is reasonable or
when a reasonable person would recognize the authority
iii) Basically, we should submit to rules already in place, unless those rules are
unreasonable - not submit to the genocidal German army
iv) The authority of law is linked to justice
(1) When authorities promote injustice, they do the opposite of what
they’re supposed to do and the legal system loses its moral claim on
our obedience
8) How does positive law derive from natural law?
a) Derivation from natural law
i) Deduction
ii) Determination or Implementation
(1) However, what about rules of the road (no natural law)
(2) Connected to natural law goals, but it’s not a deduction
iii) Ex - Natural law thought that it’s better to be alive than to be dead leads to the
principle of “You shouldn’t kill innocent persons”
(1) Deduction - leads homicide statute
(2) Determination - rules of the road
b) What does the positive law add to the natural law?
i) Specifications of natural law premises
(1) Life is sacred = homicide statute (very narrow specification)
ii) Sanctions
(1) We’re now saying if you kill, then you get punished
iii) New motive for following natural/moral law
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(1) Obey the law and support the legal system
(2) Based on the good of being law abiding
9) Main features of a legal order
a) Sanctions (Austinian)
i) Focus on the legal system as a set of sanctions (separates morality from legality)
ii) Finnis believes sanctions are crucially important, so even we refute Austin, we
should think that imposing sanctions are wrong
b) System of Rules (Hartian)
i) System of rules that regulates its own creation
(1) Institutions created by the rules who then make rules themselves
ii) Like the flow chart of rules above
§ 5 - BIRMINGHAM JAIL AND THE DECLARATION
1) Martin Luther King Jr.
a) Context
i) Letter is a response to clergymen who sent wished Dr. King would slow down,
be patient, and stop breaking the laws because this is causing civil unrest
b) No paradox
i) There’s no paradox between the civil rights movement breaking unjust laws
while trying to enforce Southern states to comply with a just law
ii) King believes that you only have a moral obligation to follow just laws
(1) There are two types of laws: just and unjust
(2) You have a moral obligation to disobey unjust laws
c) Collateral Moral Obligation
i) Clergymen - wanted King to slow down and use the courts because sometimes
you need to accept unjust laws in order to preserve stability and avoid civil
discord
ii) King’s Response - if we have a law that is unjust enough, we have moral
obligation not to follow it (never been an absolute - I.e., American Revolution)
(1) If the cause of justice can be promoted by violating an unjust law then
we should violate the unjust law
iii) The civil rights supporters are breaking laws, but doing so in a non-violent
manner and then accepting the punishments
(1) Doing the least possible damage to the legal system
d) Different Types of Injustice
i) Laws unjust in their application
(1) King was jailed for not getting a permit for a parade, which he believes
is an okay law, however, such an ordinance becomes unjust when it is
used to maintain segregation
(2) Manner and form injustice
ii) Democracy
(1) U.S. is supposed to be a democracy and a state like Alabama should
have equal voting rights, yet blacks have been systematically
disenfranchised by laws that violate the 15th Amendment
(2) Systematic denial of the right to vote
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e) High Points
i) Adolph Hitler
(1) Everything Hitler did was technically “legal”
(2) King said he would have resisted the Nazis
ii) White moderate
(1) Black people’s largest obstacle is the white people who are more
devoted to “order” than to justice; who prefer a negative peace in the
absence of tension
(2) They forget that law and order is good when it promotes justice
iii) Civil discord and tension
(1) The tension has always been in the South and the Civil Rights
movement just brings that tension to the surface
iv) Extremism for the cause of justice can be a good thing
(1) Can be found within the Judeo Christian heritage
(2) Real heroes of the South are those who disobey the unjust laws
(a) Rosa Parks and James Meredith
2) Declaration of Independence
a) Main Thoughts
i) Looking at the British legal system and seeing lots of injustice and the document
concludes that George III’s intent with respect to the colonies is malicious,
tyrannical (Grievances as evidence of a tyrannical intent)
ii) Once we decide that the sovereign has a tyrannical intent, that is a large injustice
iii) Multiple violations of the British constitution and the manner and form
(1) Substantive human rights violations and other injustices
b) Not thinking about sanctions
i) Drafters are pledging their lives, fortunes, and sacred honor
ii) British considered the Declaration an act of treason and would have executed the
signers would probably be executed if caught
c) Social Group “Say-so”
i) American people say the British have violated their Constitution, while the
British think that the Americans have violated the British constitution
ii) Who solves this argument?
(1) King and parliament
(2) American colonies
d) Mainly focused on Collateral Moral Obligation
i) If you have a moral obligation to follow just laws and even a collateral obligation
to follow some unjust laws in an otherwise just legal system, then you don’t have
any moral obligations to follow unjust laws in an unjust legal system
ii) Unjust laws + unjust legal system = mandates refusal
3) King’s Letter with Declaration of Independence
a) Declaration said that the whole legal system was unjust and therefore torn apart
i) Violent armed revolution throwing off entire unjust legal system
ii) Clearest statement
(1) We hold these truths to be self evident, that all men are created equal,
that they are endowed by their creator with certain unalienable rights,
that among these are life, liberty, and the pursuit of happiness
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(2) If law and order doesn’t lead us to good regime of justice then it’s time
to go back to the drawing board and establish a new regime that’s just
b) King believed just single laws were unjust in an otherwise just system
i) Non-violent civil disobedience movement
4) On the Incoherence of Legal Positivism - Finnis
a) Hart says natural law theorists are confused and Finnis says that legal positivism is
incoherent
b) Positive law has been put in place or created by human beings
i) What does this mean about a statute?
(1) Statutes have both settled core and open texture
(2) Some value motivated the legislature to pass the statute and judges try to
interpret the statute using his values to fill in the open texture
(3) The values inherent in the statute are already in the statute and when the
judge interprets the statute, he does not go outside the law
ii) What judges do is consult natural law values internal law and we’re blurring the
positivity of law
c) Inclusive vs. Exclusive in Judicial Decision Making
i) Exclusive - the natural law values the motivate the statute are not actually part of
the statute, therefore, when the judge takes his own values to interpret the statute
he becomes a deputy legislature
ii) Finnis doesn’t care about this distinction because whichever side they pick they
are incoherent
d) Finnis believes that this is actually just more legislation
§ 6 - NON-TRADITIONAL NATURAL LAW
1) Lon Fuller
a) Procedural natural law theory
i) Inner morality of law is a procedural thought about law
(1) Connected to the American idea of due process/rule of law
ii) External moralist of law is a substantive morality
2) 8 Requirements of the Inner Morality of Law
a) Requirements that law needs to meet to guide human conduct (not law if it doesn’t meet
these requirements)
i) Must be rules
ii) Published - made available
iii) Prospective - forward looking
iv) Understandable
v) Coherent - noncontradictory
vi) Capable of compliance/possible
vii) Administered consistently throughout
viii) Stable
b) Where do these requirements come from?
i) Not used to describe, but evaluate the purpose of law
ii) Purpose of the legal system is to guide human conduct, using the 8
requirements, to achieve some kind of social order
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iii) 8 requirements guide conduct (aspirations)
3) What motivates Fuller?
a) 1950’s and Nazi Germany
b) Suppose the Germans suspect you of treason because you say Hitler is a “bastard”
i) You could be convicted of treason by fair trial
ii) Or, you could be taken by the SS in the middle of the night or anytime
c) Large range of possibilities - the whole system was corrupt because the people decided
whether or not to follow the principles of legality
i) Here, there is an appearance of a legal system, but the reality is the legal system
is Hitler’s own personal brand of justice
4) Hart vs. Fuller
a) Hart’s Attack
i) The inner morality of law, the efficiency of law, is compatible with great
iniquity
ii) Let’s not exaggerate the extent to which an efficient legal system is a just legal
system because it adheres to the inner morality of law
(1) I.e., Nazi legal system applying the inner morality of law, yet reflecting
an external morality of law that’s unjust
b) Fuller’s Response
i) Extent that Fuller agree with Hart
(1) Has to agree to some extent with Hart because Fuller is focused on the
procedural aspects of law rather than the substantive aspects
(2) Justice requires law and law requires the internal morality of law
(preconditioned)
(3) Law that dramatically fails to meet the inner morality of law is radically
inefficient and we’d get anarchy and not justice
(4) The only way to achieve justice, is to guide human conduct, and the
only way to guide human conduct, is to use to adhere to the inner
morality of law
ii) Inner morality vs. External morality
(1) Procedures affect substance (not completely separate)
(2) If we adhere to the inner morality of law at stage one, that will have
implications on the external morality of law at stage two
(3) Committing to justice at the inner morality of law will lead to justice at
the external morality of law
(a) In order to evaluate the morality of a legal system, you need to
know something about the rules which puts us in a better position
to critique and reform the external morality of law
(b) Ex - Nazi’s deviation from the internal morality of law makes it
hard to see what the inner morality is - makes it harder to critique
and reform the legal system (full iniquity of Nazi system was
concealed by its deviations from the inner morality of law)
(i) Had Nazi’s really adhered to the internal morality of
law it would have been hard for them to be Nazis
because they’d be open to criticism
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(4) Hart fails to grasp the degree to which the internal morality of law
which includes transparency effects the external morality of law
(a) I.e., the communist paper constitution - not representative of the
real system that’s in place - conceals the system from critique
iii) Articulating Principles
(1) Forcing regimes to articulate principles (Fists vs. Elbows)
(a) Hitting someone deliberately with fist or “accidentally” hitting
someone with your elbow (same level of damage)
(b) If regimes must write and publish their rules, they will need to sit
and think about the reasons behind those rules and maybe then
think better of them
(2) Ex - interrogating suspects
(a) Big difference between telling the CIA to “just find out the
information” vs. passing a statute that describes the authorized
methods of interrogation
iv) View of human nature
(1) Inner morality has a built in view of human that are capable of being
guided by rules
(2) Guiding people’s conduct with rules suggest people are responsible and
not just rats in a maze
(a) People are intelligent - notions of intent
(b) People are moral agents - recognize fault
(3) Therefore, the picture we have of people (responsible and moral) at the
internal morality of law will weigh against having lots of strict liability
and instead puts intent and fault at the heart of the criminal law
c) Rule of Law Nazis
i) Hart’s Attack
(1) We can imagine persons who adhere to these 8 requirements yet still
pursue a Nazi social order so it’s the inner morality of law is compatible
with great inequity
(2) Hart is making a logical/conceptual point
ii) Fuller’s Response
(1) Hart’s engaging in logic chopping and conceptual analysis
(2) Empirically, there have been “Rule of Law Nazis” in history
(3) Hart and other positivists are supposed to be grounded in fact yet he’s
approaching this conceptually
iii) Finnis’ Thought
(1) Shouldn’t focus on empirical or conceptual questions, but morality
(2) Would a regime committed to tyranny have any moral reason to
adhere to the inner morality of law?
(a) Anyone committed to a Nazi level of tyranny has no moral
reason to adhere to the inner morality of law
(b) No, any adherence would be based on prudential/practical reason
like efficiency and not moral
d) Legal Pathology
v) Hart’s definition
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(1) Social group disagreement, disputes about the rule of recognition
(1) A breakdown among dominate social groups about the rule of
recognition (I.e., American Revolution)
ii) Fuller says that there’s a second kind of pathology
(1) Even Hart should recognize a legal pathology results from not just
disagreement over the rule of recognition, but also from a breakdown
in the inner morality of law
(2) If there’s a breakdown in the 8 requirements of the inner morality of law
then the system will not work that even a Hartian positivist should see
iii) Fuller with Hartian hat on
(1) Hart says that if the key to the science of jurisprudence is the union of
primary and secondary rules
(a) Therefore, a legal system is fundamentally about rules
(2) Hart’s Guide vs. Goad
(a) Sanctions are simply peripheral
(b) The main function of the rules is to guide the puzzled person
who just wants to know what he should do
(3) Without the 8 requirements, the law could act as a guide
e) What’s the real disagreement between Hart and Fuller?
i) Hart dislikes Fuller’s sweeping language that there’s no law without inner
morality of law
5) Nazi Informer Statutes
a) Hart’s view
i) This issue with these cases is whether we want to retroactively punish the
German spouse who listens to her husband speak badly about Hitler to get her
husband executed or whatever
ii) Spouse has done nothing illegal under German law, but we may want to punish
them retroactively
iii) Just need to admit that that’s what we’re doing though
b) Radbruch’s view
i) German positivist that switched to Natural Law after the war
ii) The Nazi treason statutes don’t count as justice because they’re unjust and
therefore we’re not punishing them retroactively because it wasn’t law
c) Fuller’s view
i) Doesn’t believe the statutes applied by the Nazis to punish those who bashed the
government were law because they didn’t satisfy the 8 requirements
ii) One says it applies only to public states
iii) The other doesn’t say anything about the death penalty
d) Positivism helped spread Nazism (Radbruch)
i) Hitler was legally elected
ii) Whatever the Nazi officials did IS LAW
b) Of course, Hart disagrees calling Radbruch’s opinion as naïve
i) Positivism only should be used to describe the Nazi regime and you should
switch hats to speak on ethics - so it’s not positivism that made the Nazi work
ii) Positivism was alive in Britain as well and they had no problems with fascism
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c) Fuller thinks Radbruch’s opinion is plausible and if the Germans had been trained in
procedural
§ 7 - NATURAL LAW AND ADJUDICATION
1) Spectrum of adjudication
a) Positive Law ---------Hybrid--------Natural Law
b) Positive Law = emphasis on separation between morality and positive law
i) Sometimes positive law posits an answer (Settled Core)
ii) Sometimes positive law does not posit an answer (Open Texture)
c) Natural Law = trying to blur the line between morality and positive law
i) What Hart is calling settled core is easy cases where we tend to agree
ii) Open texture are hard cases and in the hard cases the judges within the context of
the positive law and tries to interpret using his morality
iii) In both the open texture and settled core, we’re looking at the natural law
foundations - commonsense appraisal
2) Hart (Positivism)
a) Law has a settled core with a right answer and courts either get it right or wrong
b) Law also has a open texture with no right answer; the judge simply settles the answer
be engaging in some creative activity that may be legislative in nature
i) Judges making law to fit in the open texture
ii) Ex - No vehicles in the park
(1) Trucks are vehicles; feet are not vehicles (settled core)
(2) Mopeds (open texture)
c) Judges exercise discretion open texture (gaps in the law)
i) Hart is reluctant to call what judges do “legislative”
(1) Legal materials are constraining judicial discretion
(2) Judges display virtues
(a) Impartial in the case
(b) Neutral in a way that legislators may not
(c) Consider all sides of the issue and legislators may not
(d) Reasons grounded in principle; judges don’t just give their
answer
(3) Legislative in that it’s technically “law-making” but it’s not the same as
what legislative bodies do because judges are confined by the legal
materials and filling in the gaps of the statute - not writing new law
d) Hart doesn’t focus on adjudication because in Britain the judiciary is subordinate to
Parliament (unlike America where the Supreme Court interprets the Constitution)
3) Finnis (Traditional NL)
a) Quotation Handout (10-12)
i) Natural law is principally concerned with how to create positive law
(1) Natural law is philosophical first and foremost and the a legal theory
ii) Separation of powers
(1) When we interpret the positive law of the 14th Amendment Equal
Protection Clause, should we interpret it in a positivistic fashion (text,
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history, tradition, and precedent) or embrace a more living
interpretation?
(a) I.e., assume that principles of natural law says that same sex
people are entitled to get married
(b) Positivistic interpretation of the Constitution excludes same sex
marriage
(c) Living Constitution thought says we should move quickly from
the text to moral thoughts about what equality really requires
(2) Proponents of the living constitution want courts to answer the question
and those who support traditional interpretation want legislatures to
decide
iii) Natural law itself does not settle the question of the separation of powers
(1) All that natural law tells us is that we should prudently design a
government to promote justice but doesn’t tell us in any detail how
exactly to do this
(a) The same way we should design rules of the road, to promote
safety in traffic
(b) Natural law doesn’t tell us whether to drive on the left or right
side of the road - or the speed limit - just that you have natural
goals
(c) Lots of different types of government can promote justice
(i) I.e., in 1960, England didn’t separation of powers, a
written constitution, etc., yet was a free country
(2) Natural law suggests we should institute positive law that reflects natural
law principles - doesn’t tell us whether the positive law should be
extremely positivistic or more open to natural law analysis
b) Exclusive and Inclusive Legal Positivism - incoherent as an enterprise
i) Exclusive Legal Positivism
(1) Defined
(a) What judges do in open texture is posit law and that he morality
that the judges use to posit law is not part of the law
(i) Morality underpins the law, but is outside of it
(2) Finnis’ criticism
(a) Drives a wedge between the law and what courts do and they
recharacterize what judges do as legislative activity
(b) Judges don’t consider their actions as legislative in nature, so
we’re misdescribing what they do
ii) Inclusive Legal Positivism - Hart later endorses this
(1) Defined
(a) In the open texture the judges are creating law, but that’s based
upon moral values that are implicit in the law already
(i) Morality underpins the law, and is included in it
(2) Finnis’ criticism
(a) Creates a problem for inclusive legal positivist because it blurs
the positivity of law by including the morality underpinning the
law as part of the law itself
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iii) Either way, problem for positive law because they’re either blurring the
positivity of law or classifying what judges do as legislative in nature
4) Lon Fuller (Non-traditional NL)
a) Can’t distinguish between the settled core and the open texture until we know the
purpose of the statute
i) Is a moped a vehicle? Well, depends on what context the word vehicle is used in
the statute - we have to know this
b) Hart’s theory
i) Defective because it assumes that the problems of interpretation typically turn on
the meaning of individual words
c) Fuller believes that interpretation turns on the purpose (moral or political) of the statute
i) We don’t even know what the settled core until we interpret the statue
ii) We cannot interpret a word in a statute without knowing the aim of the statute
d) Always thinking about the purpose of the laws
i) Most of the time there’s some room to maneuver (except for procedural laws)
and find a moral purpose behind the law
e) Make a distinction between description of law as it is and evaluation of law as it ought
to be
i) When engaged in interpretation we’re moving back in forth and blurring (the
positivity of the positive law) the line of where the law needs to mean
ii) Description - as it is
iii) Evaluation - what it ought to be
5) Ronald Dworkin (Non-traditional NL)
a) Roadmap of his critique of Hart’s theory of adjudication
i) Hart believes that judges in the open textures are deputy lawmakers
(1) They make law in a legislative fashion base it on some commonsense
policy concerns
(2) No answers in the open texture
b) What’s wrong with Hart in Dworkin’s opinion?
i) Fails to capture the internal point of view on judges especially in the AngloAmerican tradition
(1) Judges in the Anglo-American common law world do not view
themselves as legislating in the open texture
(2) Just looking for the right answer to the case based on their interpretation
of the statute
ii) Inconsistent with democracy
(1) Lawmaking should be done by legislatures, and if we say that judges are
just deputy lawmakers, then this is inconsistent democracy
iii) Inconsistent with prohibitions on retroactivity
(1) Under Hart’s theory, if there’s no answer as to whether a moped is a
vehicle within the statute then the judge just makes law and applies the
law retroactively
(2) If Hart’s view is right, then it violates basic principles of legality in
western legal systems
iv) Judicial activity is interpretative in nature, not legislative (Most important)
(1) Judicial interpret, and that interpretation has an aspect of…
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(a) Fit with legal materials (description)
(i) Text, intent, precedent, legal traditions
(ii) If this works, it would be an “easy” case
(b) Moral justification (evaluation)
(i) Political morality, restraint
(ii) These are the hard cases
(2) To Dworkin, judges are not making new law in a legislative fashion
when they decide the hard cases (open texture), they’re simply
interpreting the existing law to find the answer that’s implicit
(3) Ex - say we have a painting of beautiful pasture
(a) But there’s a hole in middle of it and you’ve been asked to
restore the painting (like a statute with a hard question)
(b) What we put there needs to “fit” with the rest of the painting and
it also has to make the painting the best it can be
(c) Same as with a statute, there are a lot of objects we can fill the
hole of the painting with that wouldn’t fit
(d) Judges have some weak discretion, but whatever they choose
must fit with the rest of the materials and their basic goal is to
promote whatever social goal is behind the law
(4) Easy vs. Hard Cases
(a) In easy cases (settled core) fit or some mixture of fit and moral
justification can resolve the questions and everyone agrees
(b) In hard cases (open texture), where there’s controversy as to
what the fit aspect is or controversy over the underlying moral
justification, we’ll have disagreement as to what’s right
(c) Whether it’s easy or hard though, judges are never simply
applying the rule without interpretation and or positing new law
as a lawmaker
(i) Not application or legislation, but interpretation
v) Right answers to even the hardest legal questions
(1) Hart says there’s no right answer in the open texture
(2) Dworkin disagrees because even if people don’t agree, there’s still a
right answer
vi) Litigants have a right to the right answer
(1) Court giving you a right answer is different than the court acting like a
deputy legislature and making up answer
vii) Courts are a forum of principle
(1) Courts are institutions that are structured to find the right answers to
legal questions drawing upon the appropriate legal principles
(2) Supposed to interpret the statute with legal materials and select the right
answer that’s implicit in the statute and give the right answer that the
litigants are entitled to
viii) Judicial discretion is weak, not strong
(1) Hart says courts have a lot of discretion, like legislatures, when they
operate in the open texture
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(2) Dworkin believes that judges only have weak discretion - they’re only
supposed to exercise judgment as to the right legal answer
(a) Just because it’s debatable does not mean there is large amounts
of discretion - they’re not amending the statute, they’re
interpreting the statute and giving us the right answer
ix) There are legal principles that are not rules, yet are binding on judges and
cannot be traced back to the rule of recognition
(1) Legal principles - Latin phrases
(a) No person should profit from their own wrong - not a rule, just a
principle that courts sometime use
(2) Simply permeate in a moral and political fashion
c) Hard case example - Roe v. Wade
i) Set-up
(1) Claim that there’s a constitutional right to abortion and there’s a Texas
statute restricting abortion in almost every instance and the Supreme
Court must resolve under the 14th Amendment
(2) Article III Supreme Court interacting with the 14th Amendment and the
Due Process and Equal Protection Clause
ii) Hartian Positivist Analysis
(1) If settled core (it’s not), but judges would just mechanically apply the
law
(2) If open texture question, meaning it is not answered in the Constitution,
judges must posit/create an answer sitting as a kind of informal
Constitutional Convention, amending the Constitution
iii) Dworkin’s Analysis - this is all interpretation
(1) This is a hard case and judges would have to interpret the law
(a) Does it fit with legal materials and if it fits, is it the only thing
that fits?
(b) If multiple interpretations fit, which answer makes our
Constitution the best it can be to promote justice
(2) First, we’d have to decide what legal materials fit
(a) Types of legal materials
(i) Constitution’s text
(ii) Original understanding of Constitution
(iii)Traditional understandings
(iv) Precedent
(v) Consensus (contemporary) values
(b) In our legal system, we can imagine a wide range of judicial
opinion as to what legal material we use (best Dworkinian
answer is that it’s an answer of interpreting Article III and the
separation of powers)
(i) Scalia would talk about original understanding and
traditional values
(ii) Souter would talk about precedent and text
(c) Dworkin says this is the basic form of judicial philosophy
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(i) Restraint judges would say we need a tight fit with legal
materials like text, traditional understanding, and
tradition
(ii) Activist judges would say we a loose fit with text,
precedent, and perhaps contemporary values
(3) Second, we’d have to settle moral justification - what makes the 14th
Amendment the best it can be?
(a) Assuming we’re in the activist judicial camp that says we only
need a loose fit the with the text, and some contemporary values
with precedents
(i) Pro-choice judge might say as a matter of moral
justification, that a just regime would women to have
the reproductive freedom to have abortions
1. This claim fits the text concerning liberty,
precedents that recognize reproductive
freedom, and reflects the contemporary
changing values of society
(ii) Pro-life judge, who believes that the best Constitution
would protect the rights of unborn children and you
only need a loose fit with the text, precedent, and
contemporary values
1. He’d uphold the Texas law as necessary to
provide the constitutional rights afforded to
unborn children
(b) Assuming we’re in the judicial restraint camp that needs a tight
fit with the text, legal tradition, and understanding it’s not clear
that either the pro-life or pro-choice constitutional claim actually
fits the materials tightly
(i) Traditional understanding has nothing to do with
abortion
(ii) Legal traditions have routinely treated abortions as a
crime, but not as homicide
iv) Interpreting the concept of interpretation
(1) Before the Supreme Court can interpret the 14th Amendment, it must
interpret the scope of its judicial power under Article III
(a) Must determine fit and moral justification within the context of
Article III first
(2) There can be a double area of interpretation where we’re interpreting the
scope of Article III and judicial power, then moving down to the 14th
Amendment with rival views on the scope judicial power
(a) Interpret Article III and believe in restraint (narrow)
(i) Tight fit with legal understanding and legal tradition
(b) Interpret Article III and believe in activism (broad)
(i) Loose fit with text, precedent, and contemporary values
(c) Then we move on to the 14th Amendment interpretation
d) How does interpretation tie into everything else?
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i) Judges internal point of view
(1) Dworkin thinks that the internal point of view in the Anglo-American
system reflects interpretation
(2) Judges think about what they do as interpretation, not legislation or
mechanical application
ii) Inconsistent with democracy
(1) It’s for elected officials to legislate and if judges are legislating, then
that’s offensive to democracy in western legal systems
(2) However, if in the hard cases judges are just interpreting the law then
that’s not very offensive to democracy (not usurping legislative power)
iii) Inconsistent with retroactivity
(1) If there’s no right answer within the statute, and judges just make up an
answer and apply it retroactively then that’s a problem
(2) Not anything retroactive about a judge interpreting existing law to “find”
the best answer, not make it up
iv) Litigants have a right to the right answers
(1) Even in the hardest cases, there are right answers although we might
disagree on what the right answer actually is
v) Court is a forum of principle
(1) Interpretation is the right way to think about courts
(2) Offensive to think that appellate courts are actually engaging in
legislation
vi) Judicial discretion
(1) In hard cases, judges may disagree over the right answer, but they lack
the discretion that legislators have to create a law or not
6) Hartian response to Dworkin
a) Internal point of view of judges
i) Certainly more faithful to judicial rhetoric
b) Democracy
i) Whether you talk about settled core or open texture, it’s the same thing
ii) These are only formal distinctions
(1) If a judge is deciding a legal question, it doesn’t matter whether it’s
legislative or interpretative (it’s either offensive to democracy or not)
(2) Redescribing it doesn’t change the fact that judges are drawing on their
own personal values to decide hard questions
c) Same with retroactivity
i) It doesn’t matter how you describe it, it doesn’t change the fact that the answer
was unclear and debatable and you’re now being held criminally liable
d) Legislation in the open texture vs. Interpreting hard cases
i) All just semantics - word games
ii) Doesn’t change the substantive argument
e) Discretion
i) Weak vs. strong discretion (just renaming it)
ii) Doesn’t change the fact that judges have discretion in interpreting a statue
f) Courts as a forum of principle
i) Again, just a redescription - it’s still legislation in the open texture
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g) One rights answers
i) Dworkin - there is a right answer - even if we disagree about what the right
answer is (on a theoretical level)
ii) Hartian - that’s just subjective, the very fact that we disagree suggests there’s not
a right answer
7) Different Purposes
a) Hart - just describe with analytical clarity
i) Their purpose is to describe the legal system
ii) Trying to give the most clarity and description and we get the most clarity if we
recognize there’s an open texture to most law - judges exercise discretion to
create an answer
iii) Being British, Hart is not really interested adjudication because it’s not that
important in England where Parliament is supreme
b) Dworkin - evaluate, justify, and guide
i) Not interested in description per se but justification, he’s interested in putting
forth the best theory of judging to guide the exercise of the judicial power
ii) As an American, he’s preoccupied with the Supreme Court’s interpretation of the
Constitution
iii) Very interested in adjudication with an eye towards advancing analysis of
constitutional law
8) Principles in the law
a) Legal principles are not really rules and cannot be traced to the rule of recognition
i) Dworkin’s biggest attack on Hart’s theory (but weak) because Hart’s theory
says there is a master rule of recognition that all law can be traced to
direct/indirectly
b) Ex - Whether a murdering heir may inherit
i) Common law says that “No man should profit from his own wrong”
ii) Not a rule, there’s no statute or rule that says this, but it is one of those common
law maxims that you often see cited in cases
iii) Also, not traceable to a rule of recognition
c) Hart’s Response
i) Implicit in Article III is that judges can adopt various legal principles under
Article III as a valid exercise of judicial power
(1) Acceptances of these principles is an implicit aspect of judicial authority
ii) Same way, under Article I, the Senate can adopt rules of debate like the filibuster
and we know we have a filibuster because the Senate accepts it (discretion)
iii) Therefore, it’s really easy to trace these legal principles back to the rule of
recognition
(1) Plus, the rule of recognition doesn’t need to be precise, it can have its
own open texture
(2) For instance, Article III doesn’t expressly give courts the power of
judicial supremacy, but we’ve interpret that into the meaning
d) What about the idea that principles are not rules?
i) Hartian - there’s no difference between principles and rules
(1) Artificial - the Hartian description of rules is broad enough to encompass
legal principles
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(2) Nowlin cannot think of a response to this - Dworkin got smacked down
§ 8 - OLIVER WENDELL HOLMES
1) Introduction
a) Legal positives want to describe and gain conceptual theory
b) Natural law theorists want to evaluate the law and speak to the public about whether
they should follow the law
c) Legal skeptics - describe and evaluate
i) Think about how the legal system really works
ii) Aspects of description like the positivists
iii) Also done with a motive of reform - like evaluation of natural law
d) Hart’s view of legal skeptics
i) Put all emphasis on the open texture and seem to deny the settled core
ii) “Law is whatever the courts say it is” - Jerome Frank
2) Oliver Wendell Holmes - The Path of the Law (1897)
a) Outline of Essay
i) Prediction thought
(1) Lawyer’s perspective is to predict the law to help our clients
(2) Because the lawyer has clients and clients want a prediction of what the
courts will do (predication is crucial from lawyer’s perspective)
(3) To engage in prediction we have to understand how the legal system
really works
ii) Reform thought
(1) Judges perspective
(a) Huge emphasis on reform because there’s a lot of uncodified
common law and because judges have created that, it’s up to
them to fix it
(2) Want the best rules we can have and judges should alter the rules to get
the best rules possible in the absence of statutes
b) Pitfalls that lead to misunderstanding the law
i) Associating law and morality (natural law criticism)
(1) Shared concepts and vocabulary
(a) May lead us to think that moral duty is same as legal duty
(b) Ex - Malice aforethought
(i) Ordinary meaning - some spite, or ill will that’s
premeditated
(ii) English common law - intent to kill; intent to do serious
harm; reckless disregard to human life
(c) Ex - Mens rea
(i) Morality - guilty mind
(ii) Criminal law - you can have strict liability mens rea
(2) Morality deals with the internal state of mind
(a) At trial, we infer based on circumstantial evidence by making
inferences from objective standards
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(b) Law is concerned with objective fault (even though it says it
focuses on subjective intent)
(3) Contracts and Breach of Contract
(a) In the moral realm, you’re supposed to keep your promise and if
you break your promise you’ve done something wrong
(i) Some people have said that a contract is a legally
enforceable promise and if break your promise then
you’re forced to pay as a kind of punishment
(b) Big mistake in Holmes opinion because in contract law, all
you’re really being asked to do is perform or pay
(i) A contract is not a promise to perform, it’s a promise to
perform or pay damages for breach
ii) Reject legal formalism
(1) Legal formalism defined
(a) Exact opposite of legal skeptics - settled core is everything and
there is no open texture
(b) Christopher Columbus Langdell
(i) Associated with the case method of law school
(ii) All you need is the basic cases of torts or contracts then
you can work out all the internal logical structure and
can answer every problem in torts logically
(c) Logic, rather than morality, is the key to understanding law
(i) If we get disagreement then some people have been
doing their math correctly
(ii) Some judges being deficient in logic
(2) Why is this a pitfall in Holmes’ opinion? (I.e., make it harder for both
lawyers to predict and for judges to reform)
(a) There’s no logical coherence of law
(i) Law is filled with illogical rules and inconsistencies
that only make sense in a historical history perspective
(ii) I.e., Larceny by trick vs. embezzlement
(iii)Pretty much the same thing that led to confusion
(b) Judges expand the definitions and it makes sense in the historical
evolution of law and they don’t make any sense anymore
(c) Anachronisms - things that made sense in old days, but no longer
make any sense
(d) Contracts example
(i) There’s so illogical thought, some anachronism here
(ii) A contract is an agreement, but if the contract
disappears, it doesn’t mean that the agreement doesn’t
exists
(iii)Contrast this with material alterations of bonds in
English common law - Judges extended this to all
contracts
(3) After historical analysis, get the dragon out of cave
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(a) Once judges understand historically what the law is, they need to
actually revisit the policy reason imbedded the law - does it make
sense from a modern perspective or has it become an
anachronism?
(b) We might make a new rule that better serves our contemporary
policy needs - but how do we determine whether it’s the right
rule?
(c) Perform a cost benefit analysis of rule
(i) What are the costs, benefits of the rule? Do this so we
can have a rational rewriting of the rule to reflect of
contemporary notions of the rule
(ii) Economics (rational) and statistics (empirical) are the
wave of the future in Holmes opinion
c) Holmes vs. Blackstone
i) Blackstone often connects legal with moral thoughts - whatever the law of
England is rational because it is
(1) Holmes thinks this is dubious and if we do this, we’ll make bad
predictions as attorneys and judges will not be able to properly reform
ii) Holmes thinks we should resist this because we’ll be rationalizing rules that no
longer make any sense in modern times
(1) We should be asking what’s the historical reason we have the rule to
see if it makes sense and to do that we should ask rational questions
about cost/benefits guided by economics and statistics
d) Holmes vs. Hart
i) Different purposes
(1) Hart wants to describe
(2) Holmes urges for reform that leads to some evaluation of the rules
ii) What about Hart’s thought that everything’s open texture to legal skeptics?
(1) Holmes would say that he wasn’t denying a settled core and you can’t
predict everything (lawyers trying to predict should be aware of the large
open texture)
(2) Holmes is aimed at appellate court judges dealing with common law
principles that haven’t been codified
e) Holmes vs. Natural law
i) Natural law
(1) Focused on justice that represents a metaphysical truth
(a) Divinity at the top of everything (supernatural aspects)
(2) There’s a metaphysical reality we don’t experience directly
(3) Injustice and justice exist as a metaphysical part of reality
(a) Can’t test justice in a test tube, but it exists
ii) Holmes
(1) Like, natural law, Holmes has a reform agenda, but he wants to avoid
any talk of morality
(2) Common sense assessment of what we view as benefits (peace,
prosperity, liberty, security, etc.) - Holmes’ “Can’t helps,” but there’s no
metaphysics behind these - it’s a commonsense recognition of benefits
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(a) Turn to social science and empirical analysis (pragmatic, results
oriented)
(3) The law is a series of rules that should evolve with each generation
3) Lochner Era (1905)
a) The era of judicial invalidation of social welfare legislation
b) After the Civil War = urbanization and industrialization
i) Conservative economic rights - you have a right to work for slave wages and
employers have a right to hire for that wage
ii) How else may judges reform?
(1) Not doing anything - not striking down reform legislation based on
conservative values read into the Constitution
(2) Should look at history and determine whether from a cost/benefit
analysis that allows those laws to move forward
c) Holmes dissent in Lochner
i) Majority opinion is based on an economic theory that the country agrees on
ii) The issue of the court is the rationality of the legislation (cost/benefits)
(1) We shouldn’t imagine that the Constitution embodies 1900 economic
theories
4) Holmes on Jurisprudence
a) Try to identify the highest level of generality and look at the historical basis and ask
what’s the rational basis of the law and should it be replaced
b) Vermont judge who couldn’t decide a case because he couldn’t find a case on butter
churns
c) History first then cost/benefit analysis
5) Recap of Holmes
a) Importance of lawyer’s and judge’s perspectives
i) Lawyer wants to predict what the judge will do
ii) Judge wants to reform
b) The key to law is not logic or morality
c) We want to focus on history and policy
i) History shows us what we have
ii) Policy clears away the anachronisms
iii) Holmes wanted to do cost benefit analysis
(1) Common sense consequences
(2) Emphasizing economics
d) Allows judges to promote reform
i) Passive - constitutional law
(1) Defer to the legislature when confronted with policy
ii) Active - common law
e) Holmes vs. Hart
i) Hart interprets Holmes to mean there’s no settled core
ii) However, Holmes is talking about the best way to be a lawyer
iii) Hart is misinterpreting Holmes
§ 9 - LEGAL REALISM: LLEWELLYN AND FRANK
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1) Karl Llewellyn - A Realistic Jurisprudence: The Next Step
a) His Theory
i) Recognizes Holmes as the first step
ii) Makes a distinction between paper rules and working rules
(1) Paper rules = statutes, case law, constitution (theory)
(2) Working rules = actual practices of government officials (facts)
iii) Makes distinction between interests, rights, rules, and remedies
(1) Interest = privacy
(2) Right = 4th Amendment of no unreasonable searches and seizures
(3) Rules = Police must knock and announce their presence
(4) Remedies = § 1983 civil suit
iv) Llewellyn states that the focus should be shifted from paper to working
rules
(1) If we shifted the focus to working, we’d ask what really happens when
police execute search warrants
(a) I.e., if police don’t knock and announce, what actually happens?
(2) In reality, there’s a huge exception to the knock and announce rule
known as reasonable suspicion (very low standard)
(a) Big difference between paper and working rule
(b) Legal realist would say there’s not a remedy
v) Why does he want to do this?
(1) Llewellyn is focused on reform that has real world consequences
(2) We have to understand how the real world works (know the facts)
(a) Often that’s not the facts of appellate courts
(b) Rather we should focus on low level governmental officials who
interact with citizens to see how the working rules really work,
and the Supreme Court can play with paper all day long
vi) Ultimate Reform Goals
(1) What would we need to know in order to reform?
(a) Lots of emphasis on facts and less on values
(i) Use an empirical social science like economics then
rely on commonsense value judgments
(b) Doesn’t want an abstract law debate like natural law
(c) Empirical facts with cost benefit analysis and common sense
value analysis
vii) Wants a move from generality to specificity
(1) Because of the emphasis on facts, we need a more narrow focus on
jurisprudence
(2) Not a national police study, but a study on the Chicago Police
Department
b) Llewellyn vs. Hart
i) Llewellyn says law is what the police and courts do
(1) Hart believes this is a denial of analytical jurisprudence and a denial that
there’s any settled core
ii) However, Llewellyn doesn’t deny that there are rules - just different kinds
(1) Paper rules do not always transfer to working and vice versa
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(2) Not about how to interpret a statute, just understanding the difference
between paper and working rule
(3) Ex - there might not be a rule about kicking homeless people out of the
park, but it’s just a reality of what the police do - not a denial that there
are no rules, just that the paper rules don’t necessarily translate into
working rules
c) Llewellyn and Holmes
i) How does Llewellyn add to Holmes’ analysis?
(1) Distinction between paper rules and working rules
d) Llewellyn vs. Dworkin (almost diametrically different)
i) Dworkin is all about paper rules interpreted through abstract principles of
morality to make the paper rules the best rules they can be
(1) Loves common law, constitutions, and judicial opinions
ii) Llewellyn is all about the actual workings of the rule
(1) Not abstract moral theory, but a focus on common sense social
consequences and economics
2) Jerome Frank - Law in the Modern Mind
a) Overall Thought: It is the hunches of judges that drive decisions
i) The conclusion (decision) precedes the justification, the rationale is post hoc
ii) Certain stimuli drives judges personality that drives the hunches:
(1) Law and legally relevant facts
(2) The political, economic and moral prejudices of the judge, the hidden
factors in the inferences and opinions of ordinary men
(3) Judges personality - this actually also filters all of the other stimuli
driving the hunches (judges own past influences their decisions)
(a) Education of the judge
(b) Wealth and social position
(c) Legal and political experiences
iii) Decision Making Process
(1) Stimuli → Personality → Hunch → Decision → Justification (witches
cauldron)
iv) Judges just rationalizes the hunch in the opinion about what the right answer is
supposed to be
(1) Frank says if you’re reading the opinion as a justification, then you’re
being mislead
(2) You’ll never know that the judges are really thinking when they make
their decisions
b) Why does Frank think this is important to know this?
i) Reform the legal system
(1) It always helps reform to know what’s happening
(2) If judges learn behavioral psychology then they could become more
aware of their biases
(3) If judges really exercises discretion whether than the law, then we’d
want judges to do something good and not arbitrary with their discretion
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ii) If this is the way the legal system really works, then the canny lawyer should
tailor his case to the judge or the jury
(1) Helps us to be a better lawyer
c) What does Frank add to Holmes?
i) Focus on judges
d) Frank vs. Hart
i) Other facts influence the case
e) Frank vs. Dworkin
i) Dworkin sees judges as Hercules and wants opinions filled with moral stuff
ii) Frank says legal opinions are post hoc rationalizations from hunches based on
judge’s personalities
iii) Very opposing ideas of judges
(1) Forum of principle vs. forum of hunches
§ 10 - RICHARD POSNER AND PRAGMATISM
1) Pragmatism is a tendency or set of attitudes, not a school of thought
a) Generally
i) Hostility to metaphysics, reliance on reality or truth or nature as certainties
ii) Like Holmes, wants to banish morality/metaphysics
b) Focus on social consequences
i) Propositions must be tested by their consequences
ii) Focus on social policy as an instrument to achieve ends (reconsider what we do)
c) Empirical Testing (Focus on scientific methods to promote goals)
i) Projects need to be assessed using social sciences, criteria to judge against are
the amount of conformity to social and human needs (felt social needs)
ii) Associate Posner with law and economics
d) Purpose of Law
i) Instrument for achieving social goals
ii) Felt social needs
e) Other thoughts on pragmatism
i) Progressive - forward looking
ii) Secular - no religious stuff
iii) Experimental - because no set metaphysics we want to experiment
iv) Common sense - part of hostility to metaphysics
2) Old vs. New Legal Pragmatist
a) Old Legal Realism of the 1930s
i) Holmes, Cardozo, Legal Realist- Frank
b) Criticism of this school’s failings
i) Naïve enthusiasm, faith in government (New Deal mentality)
(1) The pragmatic position is not for the expansion of government
ii) Legislative process is a product of interest group competition
(1) Unrealistic view allowed legal realism to see courts taking part in
legislative process- public interest and special interests
iii) They had a hunch, but no method for implementation
(1) Social sciences have improved greatly since the 1930s
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3) New Legal Pragmatism: Posner
a) When a judge is faced with questions in the open texture he should look at social
consequences, focus on things that can be tested, use the methods of social science, not
focus on metaphysical to take us in the direction we as a society want to go
b) Economics
i) If faced with an open legal dispute a cost benefit analysis should take place
focusing on facts and empirical evidence
c) Language as a means of communication
i) Follow the language of the statute to avoid social consequences
ii) Lower courts should think about what the higher courts will do with the same
case, government structure- preserving the language as a means of
communication so we have greater predictability/stability in the law
iii) Focus of systemic concerns
4) What does Pragmatism offer the law?
a) Free Speech (wide open)
i) No objective truth to achieve, so we should talk about social goals and social
utility will be advanced by free discussion
b) Critique of metaphysics
i) Make sure we don’t get sucked into metaphysics when we talk about terms like
mens rea when we’re really focusing on what it really means
ii) There’s no way to know what a “mind” is
iii) Reaffirm the Holmes disdain of morality in the law
c) Critique of legal formalism in common law
i) Legal formalism - use logic to pedigree every decision (look at text and intent)
(1) I.e., a computer’s like a filing cabinet so let’s treat it the same
(2) We should pick the rule that best serves the social goals (forward
looking)
d) Critique of legal formalism in constitutional law
i) Legal formalism - trying to adhere to the words of the constitution and every
decision has a pedigree that traces back to intent
ii) Instrumental focus of adjudication
(1) Interpret the constitution in a progressive, instrumental fashion that
promotes the best social policy but also defer to the legislature
(2) Sounds very activist to read in policy, but when we’re thinking
instrumentally about achieving our social good, but also preserving the
integrity of the statute’s language as a predictor of what the law means
and preserving the separation of powers
(3) Not every problems are best solved in courts
(a) I.e., Roe v. Wade is not wrong because of its constitutional
interpretation, but that it should be left to the states because its
socially divisive
e) Theory of adjudication
i) Pragmatism enables judges to use law as a means of achieving social policy
ii) We should treat the law as an instrument to achieve social needs
f) Economic theory
i) Holmes suggested this, but didn’t develop - Posner ran with it in the 1970s
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ii) Law should be interpreted to maximize prosperity/wealth (use economics)
iii) Of course, economics has nothing to do with metaphysics or morality
g) Scientific Method
i) Some people think pragmatism rejects truth because it’s hostile to the scientific
method, but pragmatism is really focused on social sciences (empirical)
ii) Tells us what are the factually conditions needed to achieve our social goals
h) Rhetoric
i) We’re not looking for the right answer, only the advocacy skills to make the best
answer for either side
ii) Pragmatism is focused on rhetoric because the hostility to metaphysics (that
there are objective answers to moral questions) - and in order achieve
instrumental social goals, we have to convince people that we’re right
iii) How do we use moral concepts to persuade people?
iv) People who are engaged in rhetoric are the important people
5) Posner on Hart vs. Dworkin
a) Hart - Open texture judges legislate
i) Posner says Hart is right about because judges actually make law in the open
texture, no answer for judge to find (descriptively)
ii) Formally and semantically wrong
(1) Interpretation is the better rhetoric
b) Dworkin - Easy cases where judges agree and hard case where we disagree
i) Judges disagree about the interpretation of law and fit and justification
ii) Posner says Dworkin is formally and semantically right
iii) What Dworkin should be saying in response to Hart is that when judges render
political decision in the open texture they are simply doing law as part of their
role, because law is interpenetrated with politics
iv) Dworkin is wrong because he uses morality (big mistake in Posner’s opinion
c) Their talking about different legal systems
i) Hart talking about British - small open texture
(1) Deference to the legislature
ii) Dworkin talking about American appeals - lots of hard cases
(1) Not much deference to the legislature
6) Posner on moral theory - Harvard Law Review
a) Strong version of thesis
i) Academic moral theory
(1) Thought that there are true principles of justice that exist in some
metaphysical realm
ii) Posner responds to Dworkin (political left) and Finnis (political right) - both
wrong what he calls academic moralism
iii) There are no answers that exist in moralism or no answers that do anybody any
good (How many teeth does a unicorn have?)
b) Weak version of thesis
i) Judges are not good at moral inquiry
ii) Social decisive if they did (more morals = more divisive)
c) Thoughts on morality
i) Morality is local - no moral universals
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(1) We have different thoughts depending on where you are in the world
(2) Restrictions on violence - social necessities
ii) Morality can be explained without using moral categories
(1) Social or historical or cultural analysis explain why believe have the
moral beliefs they hold
iii) Academic moralism doesn’t improve human behavior
(1) The fact that we know something doesn’t turn into motivation
(a) Know about doughnuts, but still eat them
(2) What would the knowledge have to overcome?
(a) Intuitions - get a sense that abortion is bad thing and hand them
some document to contrary will not change their belief (intuition
is stronger than)
(b) Self interests - may lead a person to conclude that abortion is fine
(get a girl pregnant)
(c) You can rationalize what you intuitions and self interests tell use
is the right interest
(i) Any position form any academic
d) Euthanasia, Roe, and Brown
i) Supreme Court deferred to the legislature
(1) Legislatures are more competent to decide the issue with codes and
regulations
(2) Doesn’t mesh well with what the court’s trying to do in interpreting the
constitution
ii) Posner believes judges should defer and when they don’t defer, they should not
be talking about metaphysics and moralism, rather should focus on legal
materials
7) Recap from Posner
a) Avoiding metaphysics
i) We don’t want to talk about objective right or wrong
ii) Rather, view the law in instrumental terms (object with social goals in mind)
iii) Goals should be based on our felt social needs (reflect consensus values and
common sense)
iv) Should being doing cost benefit analysis of different policies for achieving those
social goals using empirical science like economics
(1) Sees himself in the Holmesian tradition
b) Adjudication
i) Judges sometimes apply the rules and sometimes have make rules
(1) Hart is right that judges sometimes make the rules (descriptively more
accurate)
(2) And Dworkin is right to call this interpretation (semantically more
accurate), because we want to signal that this okay under the separation
of powers (legislation vs. adjudication)
ii) When judges make the rules…
(1) They should avoid metaphysics
(a) Incompetent to do this things
(b) Socially divisive
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(c) Don’t mesh with the law
(d) There are no answers that are of any interest
(2) Defer to legislatures on controversial issues (abortion)
(a) If they cannot defer, judges should still avoid the moral issues
and use cost benefit and economics to decide - empirical
(i) Academic moralizing of metaphysics is not something
that judges should do
(b) “When you have a hammer, everything looks like a nail”
(c) Criticism - there’s no way to figure out when judges should stop
deferring to the legislature, until your conscious tells you
otherwise
§ 11 - BALKIN AND DECONSTRUCTION
1) Jack Balkin - Deconstructive Practice and Legal Theory
a) Legal Skeptics
i) Critical Legal Studies movement
b) Deconstruction
i) Based on the work of French philosopher Jacques Derrida
ii) How does deconstruction apply to the law?
(1) It helps us critique the existing law
(2) Uncover ideological thinking that we’re engaged in, yet not even
aware of (wrench us out of our current methods)
(3) Help us create new strategies for legal argument
iii) Doesn’t tell us what the law ought to be
(1) Deconstruction is a tool/practice/method of analysis for critiquing
(2) Deconstruction won’t tell us whether the existing law is good or bad
or whether a new law would be better or worse
iv) The goal is enlightenment and emancipation
(1) New thoughts - freeing us from old thoughts
(2) Self referential
(a) You can deconstruct any deconstructive method
(3) The value of deconstruction is confirmed through self reflection
c) Reversing Hierarchies
i) I.e., A is superior to B
(1) Without thinking, we assume that A is better - but if we think about it,
we might conclude that B is actually better than B
ii) Speech is superior to writing (deeply rooted in western legal thought)
(1) Assumptions
(a) Writing is only a method of representing speech (signs or
symbols) - writing is parasitical on speech
(b) Speech is immediate; writing is less immediate and labored
(c) Speech has subtle nuances (like sarcasm)
(d) Person is present and you can ask questions
(2) Invert the hierarchy - counter arguments to the assumptions
(a) Writing is more precise; speech can be unclear
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(b) Writing can be objective and focused because you’re not reacting
to an audience like speech
(c) Speech is also just a sign or signifier of what you’re thinking
(d) Writing’s durable and lasts indefinitely - if speech isn’t recorded
then it’s gone forever
iii) Supreme Court Standing
(1) Set up
(a) Standing makes a distinction between actual injury plaintiffs and
purely ideological ones
(b) Ideological plaintiff does not have standing and can’t sue
(2) Assumption favoring actual injury plaintiff over ideological plaintiff
(a) More motivated to obtain a remedy
(b) More reliable
(c) More adversarial
(3) Inverting the hierarchy
(a) Ideological plaintiffs are motivated by ideological concerns that
gives them more zeal
(b) Actual injury plaintiff just wants money, not resolve the issue in
accordance with public policy
(c) Ideological plaintiffs are better funded and less willing to just
accept money and go away
iv) Premeditated Murder vs. Impulsive Murder
(1) Assumption - Premeditated murderer is more culpable
(a) Someone who’s thought about something ahead of time and
weighed the alternatives, yet still taken a life is more culpable
than someone who impulsively kills
(2) Inverting the hierarchy
(a) People who premeditate murder are only (sometimes) more
dangerous to only a small group of people or one person
(b) Contrastingly, a spur of the moment killer is more dangerous to a
large group of people
(c) If we’re trying to deter, a small sentence may deter the
premeditated crowd and we need a strong punishment to break
through the other groups impulsive nature
v) House Search vs. Car Search
(1) Set up
(a) Police only need a warrant based on probable cause to search
someone’s house
(b) However, police only need probable cause under the automobile
exception to search your car
(c) Supreme Court justification
(i) Car’s have a diminished expectation of privacy
compared to a house
(ii) Recurring exigency with car - always able to drive
away, need to search before it does
(2) Inverting the hierarchy - privileging cars over houses
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(a) Houses are shared, while cars are more personal; car may be the
most private space a person has
(b) People can flush drugs down the toilet
d) Liberating the Text from the Author
i) How do we interpret the text of a legal document?
(1) We look at the intent of the author of the text
(2) The rule of law requires that the text reflect the intent and that gives
legitimacy and stability to the law
ii) Elevating the intent over the text
(1) Because text is really just the key to the intent
(2) Intent is really what we’re after
iii) Inverting the hierarchy (Text more important intent)
(1) Rule of law argument that text is superior to the intent
(a) I.e., Scalia (a strict textualist) refuses to rely on legislative
history because if the text is the statute and he won’t join
opinions if the majority uses the congressional record
(b) Extrinsic evidence is often used to undermine the meaning of the
statute
(2) It does not prove that we should place text over intent, but just that we’re
allowed to make choices
iv) Examples of liberating the text from the author
(1) Congress passes new law raising minimum wage meant to promote a
living wage among Americans
(a) Increasing minimum wage in bad economic times forces
employers to lay people off and raise prices
(2) In re Jane Doe (2000) Texas case
(a) Required minors to notify parents, but given the supreme court
they needed a judicial bypass option
(b) Parental notification process (ex parte - preponderance of the
evidence that you’re a mature enough girl to have the abortion)
(c) Nobody on the other side, so the girl would win every time
(d) The Texas court upheld the statute because its text was explicit
(3) Mistake of fact
(a) Specific intent crime like theft
(b) Common law = mistake of fact is only a defense if it’s nonnegligence
(c) MPC = only a defense if it negatives the mental state of the
crime
(d) New Jersey adopted the MPC and but then they had a mistake of
fact defense from the common law at the same time
(i) Text over intent OR intent over text?
(ii) The court blue penciled the common law defense and
harmonized the code
(iii)Not clear that the legislature understood the problem
and therefore there’s no clear intent, but yet can’t be
completely faithful to the text
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v) Will be used by the legal left because it upsets the status quo
(1) Continental philosophy and people on the left like that better (German
and French)
(2) Political right like Anglo-American based philosophy
(3) Is there anything inherently left winged about deconstruction?
(a) No
(b) Court interprets the Constitution, therefore
(i) Court is over the Constitution
(ii) Court is over the legislatures
(4) Inverting the hierarchy
(a) Ways constitution is over the court
(i) Without Article III, there would be not court
(b) Court of the legislature
(i) Courts can change the Constitution
§ 12 - HART ON ADJUDICATION
1) Introduction
a) Hart notes how the U.S. system of judicial review by the Supreme Court makes it
unique
b) American legal theorists much more preoccupied w/adjudication because we have
judicial supremacy, a written constitution, and substantive due process (i.e. Roe)
c) The Court has so much power → rather than avoiding the question of where that power
comes from, Hart commends American jurisprudence for tackling the problem → he
calls the two theories of explanation the NIGHTMARE & THE NOBLE DREAM
2) Nightmare
a) The fact that all judicial decisions are simply a product of politics (no distinction
between law and politics)
b) Jerome Frank belongs in the Nightmare
c) Hart attacks the Legal Skeptics
d) Nightmare is that the judge as distinguished from the legislator is merely an illusion →
courts have been politicized
e) Two main aspects
i) The law is nothing more than what courts do
ii) Courts should reject laws that lead to unsatisfactory results → forward looking
method of adjudication
f) Benefits
i) Teaches judges that they should always suspect, but not always reject arguments
that laws should be followed simply because they are precedent
ii) Teaches judges that they should not bootleg their politics into the law, but
recognize and discuss those implications
iii) Remind people that legal rules don’t always provide a clear answer, and when it
doesn’t, questions should be decided on a policy ground (which could be to defer
to the legislature or economic efficiency)
g) The lasting legacy of the Legal Skeptics will be in law school and in judicial opinion
writing
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i) Hart suggests that Holmes is in between these two theories
ii) Holmes is in the middle
3) Noble Dream
a) Faults the Nightmare for not perceiving the relatively large settled core
i) Dworkin belongs here: there is a right answer, judges never make law, finding
law that is already there (law is not politics)
b) Two aspects to legal interpretation
i) Particular view - is there a particular law that answers the question? If
not…Nightmare makes the mistake of simply asserting that judge gets to make
up the law (legislate)
ii) Holistic view - Noble Dream would move to this next step of interpretation - is
there a broad principle or principles of law that are able to guide the judge?
c) Questions of law always exist against a background of established law…although law
does not answer this particular question, the holistic approach would be a guide to the
right answer
i) The well established rules act as a restraint on judge’s ability to simply judge on
political ideology
4) Other theorists
a) Dworkin is described as a noble dreamer - but he is an activist
i) Fit and moral justification are theories of INTERPRETATION - not legislation
b) Posner aligns more with the Nightmare - but he is a proponent of judicial restraint
i) “Interpretation” - judges really make law…but he feels they should recognize
this and restrain themselves → allow legislature to make the call
c) Pound and Llewellyn are identified more w/nightmare too → even though they were
legal realists
d) “Grand Style of Judging” → not always one right answer but there are answers that fit
and answers that don’t fit (some answers are more right than others)
e) Who does Hart think is right?
i) *Hart doesn’t say but thinks the truth is somewhere in the middle
ii) There is settled core in the nightmare and some open texture in the noble dream
§ 13 - SANFORD LEVINSON
1) On the Adultery Clause of the 10 Commandments
a) Hypothetical
i) $10,000 prize for a person to not violate any of the 10 Commandments from age
18-35
ii) A - Husband cheats on his wife with unmarried women; adultery only applies to
married women
iii) B - Wife cheats of husband, but with the husband’s consent - no promise
breaking
iv) C - Has to wives and only had sexual relations with both women
v) D - Lusts after women who are not his wife
vi) E - Never lusted after another women since he’s be married, but he’s been lustful
towards his wife
b) You’re the Trustee who has to decide who wins
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i) For A
(1) Look at the text
(2) Exercise my subjective view
(3) Defer to the intent of the trust makers
(a) Or to religious authorities
(4) Maybe we’re looking at plausible views
ii) For B
(1) Living 10 Commandments argument
(2) Given changing times, no promise breaking constitutes adultery
2) The Embarrassing Second Amendment
a) Introduction - conventional methods of interpretation
i) Based on Philip Bobbitt’s categories
(1) Modalities - what makes interpretations legitimate
(a) Modes or methods of constitutional interpretation
(b) They way in which we structure debate - law talk
(2) If we use one these categories then the answers we generate is legitimate
- the tie breaker is the best moral answer
ii) We’re thinking about adjudication and interpretation
(1) Want a theory that helps us map out the way we think about adjudication
iii) Dworkin
(1) Legal fit - we can ask ourselves what fits with text, history, tradition,
precedent, structures of the Constitution, the evolving social ethos of the
American people (If we don’t get one clear answer from the fit analysis,
then we go to policy/prudence)
(2) Moral justification - asked what is the objective moral answer
b) Levinson vs. Dworkin - can be linked together
i) Dworkin
(1) Legal fit = modalities
(2) Moral justification = tie breaker, and maybe prudence belongs
ii) Levinson - modalities of constitutional interpretation (law talk)
(1) Text
(2) History
(a) Original understanding
(b) Legal tradition
(3) Precedent
(4) Constitutional structure
(5) Social ethos
(6) Prudence
iii) Bobbitt believes that morality should only be a tie breaker
iv) Difference between Dworkin’s moral justification analysis and Levinson’s
prudence is a policy justification
(1) Prudence is a cost benefit analysis of different policies and measure
them empirically
(2) Morality is a spectrum (Dworkin’s academic moralism)
c) Textual interpretation
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d)
e)
f)
g)
h)
i)
i) A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed
ii) Does the text at a heightened level of scrutiny allow a person to possess a
firearm?
(1) Narrow interpretation
(a) Only members of state militias have a right to keep and bear
arms
(2) Broader interpretation
(a) The phrase “the people” appears a few different times in the
Constitution in the context of individual rights - each person
(3) It has a preamble talking about a well-regulated militia (suggests a
collective right, state power against the federal government)
Historical interpretation
i) Individual (NRA) reading
(1) Look to the historical definition of militia and it meant something
different (anyone able to bear arms - of age)
ii) Collective - once again look above
iii) Neo-republicans - another link to every able-bodied man
iv) Jefferson’s concern about standing armies - they were used as mercenaries
Structural argument
i) Individual: armed populace is a check on state and federal governments
ii) Collective Right: allows states to combat the evil federal government (states
cannot be disarmed by federal government)
Doctrinal
i) Look at Supreme Court precedent (Miller)
ii) 2 issues - is it incorporated in the 14th amendment and applied to states?
iii) The opponents of gun control take a full incorporation view
iv) Some conservatives reluctant to incorporate
v) We take judicial notice is that a sawed off shotgun was not protected because it
is not a regular military weapon
Social ethos as a basis for interpreting
i) American values
ii) Collective - restrictive interpretation - violence is bad and guns are instruments
of violence, we should be a nurturing community opposed to violence
Prudence -(attentiveness to practical consequences)
i) Collectiveany right to bear arms that interfere with gun control is not prudent
ii) Individual lots of the people who are killed every year are criminals
iii) If criminals have guns, we need everyone to have guns to protect themselves
iv) Go back to civic republican argument of historical argument -we have lost lots of
distrust of government
v) Taking rights seriously - Dworkin
(1) A right you have is something you have regardless of the social costs
(2) Therefore, you should never be worried about the social costs
Heller (2008)
i) Majority
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(1) Ruled that the 2nd Amendment gives a broad right for people to own
guns
(2) It doesn’t matter whether those people are members of a militia (militias
are just citizens)
ii) Dissent
(1) Only members of the national guard should be allowed to keep and bear
arms
§ 14 - HUTCHINSON: FORMS OF LEGAL ARGUMENT
1) Introduction
a) Set of argumentative maneuvers that repeat themselves in legal debate and that can be
used to support or undermine each other
2) Precedent
a) Enables a lawyer to argue about and reason with rules or past decisions
b) Literal and purposive interpretation
i) Literal - dictionary meaning and apply it to the facts of the case without
reference to the context in which the rule or facts arise
ii) Purposive - posit the purpose(s) that the rule arises from and elaborate on the
meaning of the particular word or phrase in light of that purpose and the factual
context
iii) Ex) Criminal Code - “to use a weapon”
(1) Can be literal - wielding or thrusting a weapon
(2) Can be purposive - focus on the purpose of the object rather than its
character (unleashing a dog maybe)
c) Narrow and broad interpretations
i) Narrow - elaborate the rule in narrow terms so it can’t be applied easily to other
fact situations
ii) Broad - much easier to apply to other fact situations and earlier precedent will
need to be followed
iii) Ex) Neighbor principle - very specific application to very general
d) General and detailed statement of facts
i) General - used to make two cases seem as similar
ii) Detailed - used to distinguish cases
e) Old and modern authority
i) Old - outmoded or deeply rooted in our legal system
ii) Modern - to new to built on or represents the latest social thought
f) Connection with Dworkin’s Fit and Bobbitt’s
i) Dworkin’s Fit tells us to look at these fit based modalities and also about how to
look at the text of the statute
3) Policy
a) Judicial administration
i) Strict tests - bright line rule; gives lots of guidance but it not tailored to each
individual fact situation
ii) Flexible tests - can be tailored to each individual fact situation; doesn’t give us
much guidance so we have to litigate each case
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b) Institutional competence
i) Judicial competence - Is this something courts can do because they’re
experienced in the area of law?
ii) Judicial incompetence - Or is this something courts cannot do because it
requires legislative fact finding of some kind
c) Equality
i) Formal - lets treat everybody the same
ii) Substantive - but some people are different from other people so they should be
treated different so that the equality isn’t superficial but substantive
d) Morality
i) Freedom - Should we emphasize individual freedom?
ii) Security - Or should we focus on the government’s ability to give us some kind
of security?
e) Deterrence - similar to judicial administration point
i) Flexible ii) Stable f) Cost-Benefit analysis
i) Incentives - to engage in socially desirable behavior
ii) Disincentives - so you won’t engage in socially undesirable behavior
g) Distributive considerations
i) Redistributions ii) No distribution h) Choice
i) Paternalism - Should we emphasize the role states should play in protecting
against a person’s impulses?
ii) Antipaternalism - Or should we should be emphasize the fact that the state is
not standing like a parent and its citizens should be allowed to make their own
choices whether or not those choices are socially destructive
4) Hypothetical
a) Facts - person who throws a party and two drunken guys leave the party and injury
another party. Is the party host liable?
b) Precedent - Hotel was partly responsible after throwing out a drunken patron who then
was hit by a car
5) Hypothetical #2
a) Statute that makes it a crime to use a firearm during or in relation to a drug transaction
b) Guy trades gun for cocaine
c) Break it down again
§ 15 - FEDERALISM
1) Alexander Hamilton
a) Federalist No. 78
i) Separation of Powers thought
(1) Courts have the power of judgment (interpreting and applying law)
(a) To say what the law is and when a law conflicts with the
Constitution, the law must be struck down
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(2) This is separate from the power of Congress (will - power to make law)
(3) The people are the supreme
ii) What does Hamilton not tell us that is relevant today?
(1) He doesn’t tell us where the separation of powers and what’s the
distinction between judgment and will
b) Federalist No. 81
i) Congress can impeach judges
ii) Judges will only make minor mistakes and when those mistakes are large
enough, and when they do then Congress will step in
c) Federalist No. 84
i) Criticizes the Bill of Rights as unnecessary and even harmful
ii) Points to the Freedom of the Press
2) Calder v. Bull (1798) - Judicial Activism vs. Judicial Restraint
a) Activism (focus on minority rights)
i) Flexible methods of interpretation
ii) Loose construction of statutes and Constitution
iii) Focus more on evolving traditions, popular values, and natural law
iv) Purpose of the Constitution is to protect and promote natural rights and justice
(1) Anything that violates at natural law is unjust, and unconstitutional
b) Restraint (focuses on majority democratic, representative rule)
i) Strict interpretation of the Constitution
ii) Generally, deferential to other branches
iii) Rejects expansive judicial policy making
iv) Relies heavily on text, original intent, and precedent
3) Quotes
a) Justice John Marshall Harlan II quote 5
i) Very sharp separation of powers like Iredell
b) Justice William Brennan quote 6
i) Living Constitution
ii) Blurry separation of powers like Justice Chase
c) Justice Black quote 7
d) Justice Brennan quote 8
i) Protect the minorities
ii) Judicial competent
e) Mary Ann Glendon
i) Elitist view
f) John Hart Ely
4) Robert George - Bork v. Dworkin
a) Separation of powers is resolved by the positive law of the Constitution
b) Agree with Iredell
§ 16 - CASE OF THE SPELUNKING EXPLORERS - 4/12
1) Basic Facts
a) Country of Newgarth, 5 spelunkers, go in cave, landslide, stuck in there
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b) Rescuers come; on day 20 they ask if they can make it another 10 days. Physicians say
no, they ask if they eat one, would they live. Doctors say yes. No one gives them any
advice. So the guys throw dice to choose who will die. On day 23, Whetmore decides
he wants out, but they guys throw any way and he loses. they eat him
c) 4 who kill one to survive, and 8 workmen killed to save the guys
d) The 4 are convicted under the statute for murder
e) Jury foreman - makes a deal with judge to make factual determination and let the judge
to decide if it constitutes murder
i) Judge says it does and it goes up to Supreme Court
2) Ideas
a) Interpretation
b) Separation of powers
c) Justification defense
3) Opinions
a) Chief Justice Truepenny (Positivist) - Affirm
i) Their crime falls under the plain meaning language of the statute
(1) Under the positive law, these individuals are guilty
ii) Says this should be up to the Chief Executive to pardon the guilty men or grant
clemency
b) J. Foster (Natural law) - Reverse
i) First argument
(1) If this had occurred outside of the boundaries/purpose of the law of
Newgarth, then they shouldn’t be subject the law
(2) Can be outside jurisdiction in jurisprudential reason -the purpose of law
is to allow persons to engage in cooperative endeavors to maximize the
chance for survival
(3) They reverted to state of nature and created a social contract underneath
their new rules of government
ii) Second argument
(1) The purpose of the statute is to deter killing people, but courts have
always allowed a self-defense exception because one cannot deter
someone from saving themselves
(2) Cannot deter self-defense, just as you can not deter someone from
killing in this situation
(3) We should have a necessity type exception, even though it does not fit
the terms of the statute
c) J. Tatting (Withdraws)
i) Pokes holes about the law of nature
(1) How do we know when people revert to a state of nature?
(2) How much rock do they have to be under, how long?
(3) This is a problematic concept to apply
(4) And odd to say contracts outweigh a person’s liberty rights
ii) He expresses revulsion about what happened
iii) Purposive analysis of the statute
(1) So many purposes, and you can’t decide which it is
(2) Could’ve been retribution, rehabilitation, isolation
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d) J. Keen (Positivist) - Affirms
i) Introduction
(1) Fits the literal language of statute and separation of powers
(2) Clemency is for Chief Executive, then he gets on to Truepenny for
giving opinion to Chief Executive, but then as a private citizen gives his
opinion to the Chief Executive
ii) Given the history of Newgarth and statutory interpretation, there is legislative
supremacy on statutory interpretation
(1) The intent of the leg governs
(2) Says they cannot remake the statute just because don’t like where it goes
(3) Gets on to Foster for being old-fashioned - Must stick to the statutory
language
iii) What does he say about Foster’s purposive analysis?
(1) Skeptical that we can identify a purpose - different people thought
different things when passing the murder statute
(2) There is no single purpose because that creates gaps in the statutes and
allows judges to recreate the statute
(3) Foster wants to read holes in the statute to protect those men
e) J. Handy (Pragmatist) - Reverse
i) Homicide statute is just words on a page to lead to resolution by common sense statute is just an aid
ii) What is the common sense answer that he gives to lead to reversal of conviction?
iii) He wants to go to public opinion - pick most convenient legal argument to
promote this policy
(1) And 90% say there should be no punishment or nominal punishment
(2) Exercising common sense - we should choose the most convenient legal
theory to get to no punishment, so we should adopt Foster’s purposive
analysis
(3) No because legally right but it is a legal pathway to the feelings of
Newgarth
4) Similar Cases
a) Regina v. Dudley and Stephens (1886)
b) Holmes (1842)
§ 17 - IMPLEMENTING THE CONSTITUTION
1) Supreme Court has the duty to implement the Constitution
a) Constitution is law
b) Province of courts to decide law
c) So province of courts to decide what Constitution means
2) Courts decide cases
a) Cases set up doctrines or tests
b) Cases also set up precedent (stare decisis)
3) Why set up these tests
a) Guidance
b) Serve values of constitution
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4) Why aren’t these tests a perfect ID of the Constitution
a) The Constitution is a vague collection of general principles
b) Court may be wrong
c) Must respect Stare Decisis
d) Must also consider the costs of creating these doctrines
i) Uncertainty in litigation
5) 8 tests
a) Forbidden Content
i) Can’t do (Printz)
b) Suspect Content
i) Strict Scrutiny
ii) Default lose for government
iii) Suspicious; need really good reason
iv) Race classifications
c) Balancing Tests
i) Intermediate Scrutiny or ad-hoc test
ii) No default win or lose
iii) Competing interests weighed
d) Non-suspect Content
i) Rational basis review
ii) Default win for government
e) Effects Tests
i) Focus on what effects a government action has, regardless of the purpose
f) Appropriate Deliberation
g) Purpose
i) Focus on the purpose of the government action
h) Aim
i) Focus on the aim
6) Combinations of the tests
a) The tests do not necessarily stand alone
b) Example: O’Brien test
7) Routine over- and under-enforcement of the Constitution in a lot of cases
a) Over-enforcement
b) Affirmative action stuff being knocked down
c) Under-enforcement
i) Disabled people not being treated equally
d) Main Point: if we except judicial supremacy, this is what happens
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