The Sovereign behind the Legislature Austinian response to fact that sovereign is under legal limits Real sovereign is the people and it’s the people that are issuing orders backed by threats to the legislature Hart’s Response This still doesn’t explain legal limits of the sovereign, because we just shifted who’s the sovereign Still have to explain legal limits on the sovereign if the people are sovereign (American’s looking mirror ordering themselves?) This is better explained by normative acceptance of a rule Chapter 5 - Law is the Union of Primary and Secondary Rules Fresh Start What’s the key to the science of jurisprudence? Union of primary and secondary rules Primary - impose duty/obligations Secondary - power conferring rules; about the primary rules What does Hart mean that this is the “key”? 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 Never trying to give a definition This is not a definition of law, but this analytical framework for thinking about legal systems is the way to go The Two Theories Austinian Command Theory Sovereign and his subjects General orders Standing orders Habit of obedience Hart’s Theory!!! Social groups (not sovereigns, some subset of people) Acceptance of set of rules From the internal point of view Accept the rule as binding on themselves Recognizing those rules are normative (ought and ought not) Primary rules of obligation - impose duties Secondary rules - power conferring Obliged vs. Obligated Obliged Implies force or coercion Focus on the likelihood of a sanction which induces compliance External point of view- just looks to external behavior
What is the inner morality of law as a necessary connection between morality and law? Hart says law is about rules and we’re trying to guide people’s conduct through those rules Therefore, citizens need to Understand the rules Be able to comply with the rules must be perspective (no ex post facto) 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” Lon Fuller says that these 3 rules are the inner morality of law Basically, the rules we use to guide human behavior have a moral concept built into them Must publish the rules and make them clear for people to understand Hart’s Response to Fuller Hart is willing to concede that there is some connection between law and morality, but “it is unfortunately compatible with very great iniquity (evil)” Hart is thinking about “Rule of Law Nazis” Nazi’s can publish rules that are understandable and perspective Imagine how many evil legal systems can adhere to the rule of law and due process 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.) He STRONGLY denies that an “unjust law can still be a law” - that’s just wrong The idea that law’s validity turns on morality is mistaken Legal Validity and Resistance to Law “Unjust law is not a law” Hart will not concede that there is such a connection between law and morality such than an unjust law is not a law The thought that legal validity turns on morality is completely wrong Hart is saying that this is a contradiction Before you said it was unjust, you called it a law 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 Legal validity turns on the rule of recognition, not morality 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
Traditional natural law Natural law theorists focus on morality and use it to make sure that we have the correct kinds of law Objective is to learn what we can do to make our legal system a better legal system from a moral standpoint Natural law is not descriptive, it’s prescriptive (what we should do) Foundations Divine origin - Beyond the natural realm, exists some realm of divinity and we have an objective moral order with a divine origin Supreme being has created a moral order where thinks are objectively right or wrong Metaphysical rules on par with physical rules Religious revelation, through reasoning not scripture, may provide points of guidance Self-evident - All men are created equal (not obvious to everyone) Natural Law Tradition Handout John Finnis 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 The debate is not between positive and natural law, but between the separation of power The courts should make sure the positive law reflects the content of the natural/moral law A positivist believes that the legislatures should make sure the natural law principle of equality is reflected Robert George George builds on Finnis’ thought The natural law does not tell us how to make positive law conform to natural law It doesn’t say we need separation of powers or federalism Finnis On Unjust Laws Hart thinks that the focus of natural law is on unjust law However, Finnis says unjust law, or how we respond to legal injustice is important, but it is just a subordinate concern The central concern of natural law is engaging in moral analysis to guide the creation of positive law Types of Injustice - ways in which positive law can be unjust Intent An improperly motivated law can still be compatible with justice and promote the common good 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
High Points Adolph Hitler Everything Hitler did was technically “legal” King said he would have resisted the Nazis White moderate 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 They forget that law and order is good when it promotes justice Civil discord and tension The tension has always been in the South and the Civil Rights movement just brings that tension to the surface Extremism for the cause of justice can be a good thing Can be found within the Judeo Christian heritage Real heroes of the South are those who disobey the unjust laws Rosa Parks and James Meredith Declaration of Independence Main Thoughts 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) Once we decide that the sovereign has a tyrannical intent, that is a large injustice Multiple violations of the British constitution and the manner and form Substantive human rights violations and other injustices Not thinking about sanctions Drafters are pledging their lives, fortunes, and sacred honor British considered the Declaration an act of treason and would have executed the signers would probably be executed if caught Social Group “Say-so” American people say the British have violated their Constitution, while the British think that the Americans have violated the British constitution Who solves this argument? King and parliament American colonies Mainly focused on Collateral Moral Obligation 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 Unjust laws + unjust legal system = mandates refusal King’s Letter with Declaration of Independence Declaration said that the whole legal system was unjust and therefore torn apart Violent armed revolution throwing off entire unjust legal system Clearest statement 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
Hart suggests that Holmes is in between these two theories Holmes is in the middle Noble Dream Faults the Nightmare for not perceiving the relatively large settled core Dworkin belongs here: there is a right answer, judges never make law, finding law that is already there (law is not politics) Two aspects to legal interpretation 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) 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? 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 The well established rules act as a restraint on judge’s ability to simply judge on political ideology Other theorists Dworkin is described as a noble dreamer - but he is an activist Fit and moral justification are theories of INTERPRETATION - not legislation Posner aligns more with the Nightmare - but he is a proponent of judicial restraint “Interpretation” - judges really make law…but he feels they should recognize this and restrain themselves → allow legislature to make the call Pound and Llewellyn are identified more w/nightmare too → even though they were legal realists “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) Who does Hart think is right? *Hart doesn’t say but thinks the truth is somewhere in the middle There is settled core in the nightmare and some open texture in the noble dream § 13 - Sanford Levinson On the Adultery Clause of the 10 Commandments Hypothetical $10,000 prize for a person to not violate any of the 10 Commandments from age 18-35 A - Husband cheats on his wife with unmarried women; adultery only applies to married women B - Wife cheats of husband, but with the husband’s consent - no promise breaking C - Has to wives and only had sexual relations with both women D - Lusts after women who are not his wife E - Never lusted after another women since he’s be married, but he’s been lustful towards his wife You’re the Trustee who has to decide who wins