Download a. Morrison: 1. CLS account of positivism is crude. 2

JURISPRUDENCE: 12/2013: Why are liberty/autonomy valuable? We say we’re moral agents, crux is choice: law should allow us to make bad choices as a condition for making good ones.
A. CL Theory: What is law
Authority source
Who can interpret/apply it
How change?
Criticisms
Statute: Crown,
Hale: Judges living oracles, declare
 Statute, CL - found in
 Hale: by
 Problem: privileges past; if sth isn’t like the old argument, we can’t do sth different
Prlmt
law (trained to). Discretion is weak,
judges’ decisions
judges, bit
 Artificial reason: If NR can be used (everyone has), nothing special about judiciary.
CL: custom,
not strong/law-making
by bit
a. Davies: Judges: our ideas about the role of judges has roots in early CL theory, and
 Accumulated wisdom
progress
 Law accessible if immersion in
a. Traditional theory: CL not usage/time
declaratory theory. If law is identified, declared by judges, where does it come from?
practice/artificial reason
and refine
a product of authority. CL as a immemorial,
Timelessness is not an adequate answer – legal positivists reacted against the idea
built of practices
it
product of years of sociothat the authority of law springs from the fact that it has always been.
 Nature of reason, Aristotle:
and social norms
political custom.
world can be understood if we
b. Hobbes: Positivism: authority of law derived from authority of sovereign, judges
Blackstone:
Why: Blackstone et al keen
apply reason. Artificial reason:
appointed/derive power from him. Artificial reason: can’t leave law to reason of one
accepted
to assert CL independent of
paradox: law independent
Hale’s defense of CL: i. CL deals w/complexity, can’t reduce to what a person thinks is
practice.
crown/crown bound by it.
(natural), reason honed to see it.
fair; ii. Reasoning a product of experience, not comprehensible to ordinary person
B. Legal Positivism: What is law
Source of authority
How change?
Criticisms
a. Hart: 1) rule of recognition:  By valid process
a. Davies
 People create law, not metaphysics. Systems define law w/own criteria
Hart: i. Primitive/advanced: no explaination why
a. Hart (followed): 1.laws are human commands; 2.Legal system closed, logical: what actors w/in system
w/in the system
recognize as law: criteria can be  Who interprets law,
one is more legal. ii. Rule of r’n circular: officials
correct decisions from predetermined legal rules/logic 3.Minimum content of
written, e.g. constitution. Says
recognize RoR which recognizes them as officials
NL: legal systems without min. protections die, all systems = similar key norms.
seek to identify of
what the law is, not should be.
Austin: 1. Assumes identifiable sovereign who
4.Primary/secondary rules: primary: substantive law/govern behavior; 2ndy:
what is(n’t) law.
2) Rules v. habits: laws differ
creates law: N/A to modern legal systems with few
rules about rules. Primitive/advanced systems: primitive: no 2ndy rules.
 Interested in what
from other rules b/c of internal
vertical relations 2.Command theory omits enabling
b. Green (Stanford): like Austin: If society has a legal system depends on
happens if a gap in
e.g. contract 3. Can’t explain customary laws
governance structures, not how it satisfies ideals of justice, etc. Whether law’s in aspect: we’re invested in them,
the law (theorists
we believe we ought to (e.g. law
force depends: standards recognized by officials; e.g. legislative enactment
diverge on views re: Kelsen: can’t explain origin of basic norm. He’d say:
validly made). Adherence to
not a Q for legal theory (for political theorists etc.)
c. Bentham (Austin’s mentor): assembly of signs, declaratory of volition,
judicial discretion)
legal norms comes from fear of
b. Hart: (re: Austin) 1. Now hard to identify a
conceived by sovereign, concerns conduct to be observed by subjects, volition
Kelsen: e.g. postsanction, critically reflexive
sovereign: someone habitually obeyed/doesn’t
relies on fear of sanction - prospect of it motivates ppl. Sovereignty from habit
revolution, a new
internal attitude. Rules different pyramid: new regime
obey others. Highest officials now subject to law.
of obedience. Utilitarianism, separation of “is”/ “ought” of law.
from habits: they provide a
d. Austin: series of general commands of recognized sovereign backed by
not responsible for old What counts as sovereignty? 2. Continuity: what
justification for action.
happens when one sovereign dies, another takes
threats. If not a command, not law. Sovereign commands = “positive” laws.
harms (e.g. Vichy
b. Kelsen: grundenorm,
over? The new sovereign has no history of being
f. Kelsen (grundnorm): validity of legal norms based on relation to higher
regime and modern
pyramidic structure.
habitually obeyed, so how does habit emerge?
norms w/in system; leads to basic norm: limit of the law + says what is(n’t) law
French state)
C. Natural Law: What is law
What is divine law?
Source of authority
Who can interpret/apply it
Criticisms
1) Positive law: man-made
What is the content of higher law? How can we
a. Finnis, follows Aquinas: NL
 God, etc. Law,
 Derives an is from an ought: starts by
2) Natural law (Aquinas:
know? What if positive law conflicts w/NL?
principles self-evident. Practical
morality coincide
describing natural world (‘is’), uses it as basis
higher): i) divine law, ii)
Finnis’ self-evident goods: 1) Life, 2) Knowledge,
reasoning: used to decide how
for saying how the world should be (‘ought’)
 What if positive,
3) Play, 4) Aesthetic experience, 5) Sociability, 6)
natural law (application of
natural law conflict? to act/how to order our lives.
 Trumps social institutions, starts war
Practical Reasonableness, 7) Religion.
reason to human existence)
For some, unjust law Universal and natural – not
Davies: No universal reasoning provides a basis
Goods are self-evident – does not mean they’re
Commonality: “Higher law”,
culturally specific, or dependent for Finnis’ theory. You can’t isolate modes of
is not law. Finnis:
obvious (can be divined by practical reason),
exists independently of
on experience, language, class,
subversion in
reasoning. Finnis reproduces bourgeois liberal
and intrinsic, i.e. valuable in and of themselves.
positive law
gender, race etc.
extreme cases.
ideology, e.g. “reasonableness” loaded w/values.
D. Legal Science, Realism, Formalism, Law & Economics: What is law
Source of authority
Who interprets it
How does law change?
Criticisms
a. Formalists: when law runs out, judges
Davies: 1. Assume
 Law = generated by social institutions (take law as given). Davies: borrows
 Objective, value- a. Formalist: ANS
w/in relevant law.
have nothing to say (i.e. no law to use)
facts not mediated
from science to systematize law. Key question: how does law function?
free facts; nonb. Realist: what is
b. Law and economics: Coase theorem /independent; 2.
a. Formalists (e.g. Posner): law is a closed system. If you apply rules correctly,
theological,
efficient outcome will prevail. Law should
Feminist critique –
answers to problems will be consistent. Commitment to continuity, objectivity:
objective view of relevant is prereduce transaction / bargaining costs to
m selection/
promotes confidence in the law (but must be wiling to accept outcomes).
world around us determined by the
attitudes, politics
allow the efficient market to do its work.
definition of
1. Systemic approach to legal education through organized institutions.
+ forms of
of decision-maker.
Assumption: humans are rational utility
problems 3.
2. Case method – a scientific understanding of law through study of cases.
reasoning that
Subjective: notion
maximizers; utility can be defined – the value Primacy of some
b. Realists (reacting to formalism): legal decisions based on law, also judges’
allow prediction
of truth
derived from a good; and aim is to maximize
tests of knowledge
values, public policy, etc.: those factors determine outcome b/c judges decide the  Realists: power
utility – by ensuring that allocation of
(peer review) v.
answer first. Law is: legal principles, politics, policy, etc. Role of principle: good
 substitution of
resources is efficient.
others
to describe old decisions, but law develops through experience, not formal logic
this for religion
1
JURISPRUDENCE: 12/2013: Why are liberty/autonomy valuable? We say we’re moral agents, crux is choice: law should allow us to make bad choices as a condition for making good ones.
E. Critical Legal Theory: What is law
How should we question law?
Key Interest
Critics
Crits challenge: 1. law = complete,
Davies: return to legal realism. CLS a diverse
a. Morrison: 1. CLS account of positivism is
 Rights lead to substantive justice but formal
consistent system; 2. lawyers
movement, difficult to define it, its objects of study.
crude. 2. Liberal legalism as disguising exercise
equality masks/perpetuates inequality.
independent, a principled but benign
Key features: 1. law is political, legal reasoning
is reductive. 3. Law bound by rules, malleable
Crits’ claims about liberalism: 1. Liberalist
elite; 3. law schools ignore human
rationalizes/hides that, so 2. legal doctrines aren’t
b. Goold: i. Judges say they feel bound to follow
assumption law is neutral is misleading. Law
dimension of legal problems, sanitize
determinative: numerous outcomes can be justified.
reach conclusions they would prefer not to. How
is a product of the state, relies on it for
discussions to matters of doctrine,
Crits: need to re-orient thinking: 1. person is the
enforcement, authority 2.No neutral legal logic do we make sense of this? ii. CLS critique of
legal logic; 4. failure of liberalism to
centre of the analysis, idea of independent observer =
liberal project underplays role of rights in
Liberalism: prizes individual liberty, state
deliver promise of equality,
misleading; 2. Focus on political dimensions of law, 3.
helping minorities achieve formal equality.
power is constrained so that individuals are
individual freedom.
Seek substantive equality
free, autonomous.
F. Feminism What is law
What gives law its authority
Key Interest
Criticisms of Liberal Feminism
How does law change?
Seeking equality w/m standard only helps w
Aims to show: A) law
 Official standard for
 CL/positivism male,
 Humans of = moral worth, entitled to be = under
who can/will conform. Anti-autonomy, liberal.
legitimates oppression, treats
what is normal,
developed by men
law. Law: patriarchal, legitimates oppression
Promotes 1 idea of good life
m/w different; B) inspire
accepted. Violations, etc.  Law promotes order by
 Liberal Feminism: formal equality
non-discriminatory reform;
illegal, also deviations
reinforcing adherence to
 Radical Feminism: W can’t trust the state: o/rule RFs: LFs don’t pay attention to underlying
causes of oppression, think liberal values are
C) challenge “normal” derived
from the status quo.
predominant norms,
of law hides inequalities. Substantive equality.
neutral. MacKinnon: focus on eroticization of
from patriarchal views D)
Francis, Smith
presented as universal,
 E.g. sports: huge for w to play (LFs), but should
domination/subordination as discrimination.
wrongs traditionally ignored
(Stanford) +Realism.
natural, inevitable.
we even play this game (RFs)
G.Post-Modernism:WIL
How should we question law?
Source of authority?
Key Interest
Critics
 1) it depends: law as
 Deconstructionism: meaning from interplay Derrida: law based
 Distinguish law/justice: law calculable/applied in calculated
 Davies: uses deconstn:
on force
subjective experience,
of language (e.g. grammar).
way. Justice can be manifested by law, but is circumstantial. Law
pluralism: theory
2) can’t separate the
restrained by justice, justice can come from law
decapitated, not dead
 Disruptive process: show alternate meanings, Foucault (rejects
PM classification):
person, view of the law
destabilize binaries, show constructs
 Three paradoxes: 1) Judicial processes=extend+follow rules. 2)  Goold: if we can’t say
power embedded in
Do justice (unrestrained) w/in a system. 3) Process of justice
anything, isn’t useful –
 This isn’t the Q to ask > Derrida: concepts communicated = binaries.
society
see key interest
Imply one is better (presence/absence)
we’re trying to define is not definable.
about drawing attn
*What are rights: Justifications
Functional Questions
Applications
1) where are rights from/ why
2) what rights should we 4) how do we give effect to this in law? 5) What are rights in law? Dworkin: when conflict, hierarchy of rights. Rights as Trumps:
should we have them
have 5.Dworkin/Hohfeld rights prevail over other interests, protect from majoritarian claims. Sometimes scope can be constrained: constrainer must justify,
i. status theory: rights exist
3) how do rights function like Oakes. Must be willing to uphold right even if society takes a hit. Critique: no “ace” that trumps all others. Hohfeld: clarificatory.
intrinsically b/c we have
/who can have them
Rights: a type of legal interest, rights as relationships, powers, obligations. Rights create duties. in rem: right against everyone, e.g.
attributes that make it
i. will theory: rights
property. in personam: rights against another, e.g. contract. Types of legal rights: 1. claims: requires someone to do sth/refrain,
appropriate to ascribe rights to
grant ability to make
creates duties. 2. privileges: liberties to do things, prevent others from requiring us to do things. 3. powers: compel others to do
us. Status + will theories
choices + give effect.
things/removes liberty to not 4. immunities: others cannot compel you to do sth
compatible b/c of view of
Says what others ca(n’t). 6) rights and responsibilities (note this informed by theory, e.g. NL v. Positivism)
individual rights (e.g. I have
Tied to autonomy:
a. Law and morality: When should law intervene? i) direct harm ii) offence to others iii) harm to self? Western law/morals divide
rights because the deity in my
rights waivable, status
use Mill Harm Principle: only purpose for which power can rightfully be exercised over someone against his will is to prevent harm to
religion says we have rights/ppl theory. (No rights for
others. Depends on view of govt/the individual. Critical v. conventional morality (Bix): Critical states what is morally true,
are moral agents, thus rights
kids/comatose/animals
conventional captures what most see as morally true. Mill: assumes everyone has a right to individual liberty. Feinberg: must
are necessary to protect
b/c no exercise of
distinguish harmfulness and wrongfulness, criminal law is only justified in prohibiting conduct if harmful and wrong. Application of
autonomy). Req’s belief
choices – paternalism)
harm principle requires thinking about harm on both sides to the equation.
ii. consequentialist/
ii. interest theory:
a.1 Cain’s Critique of Hart/Devlin debate: it sets up a false binary b/w law+morality: i. law has function: can clarify/promote
instrumental theory: we
function of rights is to
morals. Law/morals as separate ignores law as obligations w/moral dimensions, ii. Law = institutional resource for enforcing, etc.,
confer rights to people b/c it
further interests of
rules of conduct- may (must) be moral. Law + morality can embrace each other or not. 4 ways law interacts with morals: 1) law
leads to good outcomes/ ends
rights holder (rights
generates reasons for actions, creates moral positions; 2) legitimizes negative reactions breach o/moral norms; 3) strengthen society:
e.g. utilitariansim. Why isn’t this make us better off, e.g.
shifts views o/morals, creates value pluralism; 4) as a forum to deal w/disputes, takes things out o/moral sphere, supports clarity
convincing? Depends on what
property). Autonomy
a.1 value of moral theory: Posner: no need for moral theory: i) moral theory doesn’t provide a basis for moral judgments, ii) even if
you value. Leads to both will
unnecessary (children
it did, shouldn’t be a basis for legal judgments: morals are local/relative/adaptive, are instruments, academic moralism can’t make
(commitment to choice) and
have rights/comatose
the world better (self-interest prevails, readers can find an argument for support). Dworkin: Morality broken in to moral sociology,
interest (commitment to other
people). Unwaivable,
moral anthropology, moral psychology, morality. Re: ii) accepted moral principles exist, provide a basis for moral reasoning, i) people
interest) theories.
attach regardless.
do choose to change their mind, can’t expect it to always have this effect. Brennan: goal of moral theory: say what “goodness” is.