Legal Perspectivesfinal 12 James Wegener

Legal PerspectivesFinal – 12’James Wegener

Table of Contents

Natural Law – St. Thomas Aquinas

Legal Positivism – John Austin

The Separation Thesis – H.L.A. Hart

The Morality of Law – Lon Fuller

Law as a System of Rights – Ronald Dworkin

Liberty – John Stuart Mill

Law and Economics – Susan Dimock

Critical Legal Studies

Feminist Theories – Catharine Mackinnon

Critical Race Theory

Natural Law – St. Thomas Aquinas

What is valid law?

Natural law is considered natural as it is a product of a man’s reasoning correctly exercised
(Teleological) The purpose of law is to obtain the common good – law is morality
Man’s nature, as crafted by God, inclines him to the common good
Man’s reasoning, as crafted by God, allow him to devise the steps that will lead us there (laws)
Divine law, filtered through the human reason
Law is the codifying of universal principles through reason, so that they can be followed
Law must have the following four elements, or else it is not law and need not be followed

Four Elements of a Valid Law

Must be directed to the common good

There are some essential goods: self-preservation, happiness, living in stable society ...
“common good = good of community, stability of community

Must follow practical reason
Reasonable steps leading to the common good
Oakes Test given as example
Must be made by valid lawmaker
ruler within community, who hold this position by reason of the natural order
Some people naturally rule; natural rulers know what is in the common good, and what will achieve universal happiness, so are well suited to provide rules to pursue this goal
Must be promulgated
Must be written and known (publically proclaimed)
laws are impossible to obey if unknown

What is the role of a judge?

Judges must apply the written law, unless they find it unjust
In exceptional cases, obedience to the letter of the law may give way to the spirit of the law, which aims at the common good, in order for the judgement to be just
Judges provide “just” judgements through prudence and the inclination of justice
Judges have authority – valid lawmaker (where appropriate)

What is the role of the government?

Legislation is preferable
Legislators possess greater authority and are more likely to possess wisdom on how to obtaining the common good
General abstract laws are more moral than particular application

Legal Positivism – John Austin

Critique of Natural Law

Moral content is not a necessary element of positive law – doesn’t have to be morally good
Like Aquinas, there is a moral obligation to obey “valid law”, but this is not because it is moral, but because it is the standard of justice
Hard to challenge the law if it embodies morality (Divine Law – God’s Law)
Distinguishes 3 kinds of directives: God’s law; Positive Morality – manners, customs, international law, constitutional law (comes from norms & traditions); Positive law – “valid” law
Law is a human artifact

What is valid law?

Law must be empirically provable (tangible)
Must be a command, issued by superiors to subordinates, and backed by sanctions
The sovereign: a determinate and common superior of which the majority of society is in habit of obeying
Must be created in accordance with the rule of the law making jurisdiction (“pedigree” test)
Only the “settled core” is law

What is the role of a judge?

Judicial decisions are specific commands
Judges themselves are “subordinate”, carrying out the limited authority granted by the state
Judges mechanically apply the law from legislation
Judges decides cases that fall out of the “settled core” by appealing to positive morality
Judge made law (common law) is not really law, but as long as the sovereign tolerates it, then it will act like law – though legislation can overrule a judicial descision

What is the role of the government?

Austin’s Positivism is legislation-centric
They give the generalised rules (commands) that apply to a class
The sovereign is not bound by the law as they are superior to it – they delegate it
Problem: This is not the way Canadian Law is

Legal Radicalism – Bentham, Raz

Bentham:Law is a human creation, unlike Aquinas’ view
Law is to be evaluated and crafted on a utilitarian basis – not morality
Laws that come from God cannot easily be evaluated, which is not beneficial
A constitution is binding on the sovereign, and my contain some elements of morality
Raz: authority must perform a service for its subjects when making law – the law must actually help them or help them act better
I.e. seatbelt laws confer a benefit

The Separation Thesis – H.L.A. Hart

Critique of Natural Law

Laws can be morally neutral, or even immoral (to a point), and still is valid law
Law and morality may be congruent, even frequently, but it is not necessarily so
Law is not teleologically moral
BUT, if a law is too immoral, too evil, it may warrant disobeying the law

Critique of Austin’s Positivism

Like Austin, Hart believes law is not dependant on morality – they are separate
Hart’s position comes from WWII era, so, unlike Austin, he argues that there are certain situations in which disobedience may be warranted (where immoral) – otherwise Nazi laws are valid laws – If a law is too immoral, too evil, it may warrant disobeying the law
Laws are not simply commands; there are many kinds of rules, for different purposes
The sovereign is subject to the law, as it is part of the legal system

What is valid law?

Primary Rules: tell us what we can and cannot do
Secondary Rules: rules that govern the system
Rule Governed Practice
The legal system is a rule governed practice – laws have “ought” claims
Laws grant rights and duties
The “terms”, or principles of justice, help judges decide difficult cases
These principles may change as circumstances change
These principles are part of the law
Rule of Recognition
The laws must be recognized by officials, and consistently applied – belief that they ought to be applied
Laws must be recognized by society – believe you ought to obey them
To be stable and effective, the rules must be recognized and obeyed by all

What is the role of a judge?

The legislation and common law is expressed in general terms, so applies generally
There is a “settled core meaning” but factual situations may fall outside the core – “penumbra”
To settle penumbra cases, judges appeal to the “terms” of the rule governed practice
Judges find the law by applying these terms
Judges don’t apply mere discretion of personal morality in penumbra cases (unlike Austin)

What is the role of the government?

Make legislation that is expressed in general terms
Legislature is also bound by the law

The Morality of Law – Lon Fuller

Critique of H.L.A. Hart’s Positivism

That social acceptance of legal rules depends on grounding in morality (external morality)
“recognition” of the law is ultimately grounded in morality
“ought” claims are really that people follow the laws because they are good
Law itself has an inner morality which positivists ignore.

The purpose of law is to effect order in society – need good, stable legal system
These characteristics have the effect of making law good
Law is more than a declaration by authority, more than a label

Immoral laws cannot actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law

Hart said that laws exert an “ought claim” over us, but there can be circumstances where a law that is properly created is nevertheless deeply immoral
Austin would say primary obligation is to obey the law
Hart said the individual can make a choice in this case
Hart never really explains what morality is
Fuller criticizes this and says it gives no explanation to individuals as to what they should do in this kind of situation

Also criticises the “core” and “penumbra” theory of judicial interpretation

Says this is ridiculous and offers his own theory
There is no core of settled meaning, and therefore no penumbra

What is valid law?

When rules fail to be law (law being a coherent system, not a series of commands)

When decisions are ad hoc – arbitrary and random
Where rules are not public, knowable
The abuse of retroactive legislation
Where rules are not understandable
Where rules are contradictory
Where rules cannot be obeyed (obeying them beyond person’s ability)
Very frequent changing of rules (so person cannot orient their behaviour by them)
Disjunction between rules as rules and rules as actually administered by judges

What is the role of a judge?

The role of judges is to interpret the law in context and with reference to the purpose
Judges need to have fidelity to the law in that they should make the law what it ought to be.

What is the role of the government?

Must make good law if it is to be obeyed – Rex story (see above 8 and below)
Law must be coherent- coherence requires reasonableness, rationality and consistency

Law as a System of Rights – Ronald Dworkin

Critique of Positivism

Dworkin rejects what he says are the three key components of positivism:

Law is a set of rules identified with reference to a master rule; separate from content
Austin – Master Rule is the Pedigree Rule
Hart – Master Rule is Rule of Recognition

Principles are part of the law, not above it

Where no rule applies, judges exercise discretion

There is no penumbra; Appeal to principles using legal reasoning to find answer

Legal rights and obligations are the product of legal rules; not a priori

They derive from principles; they don’t need to be created or conferred by rules

What is valid law?

Law consists of rules, principles, and policy (sometimes included in what we call principles)
Rules apply to factual requirements: “all or nothing”
Principles have different weightings in different cases, unlike rules
Based on fundamental ideas of justice and fairness that support certain rights and duties
Principles are developed over time; may change over time – lie in appropriateness
Principles are not super-rules floating above the legal rules – they are part of law
Legal rights and obligations are derived by the principles/policy and conferred by rules
Policy is simply social goals pursued on behalf of some segment of the population

What is the role of a judge?

Judges see if facts of the case fit within a rule – then determine if it meets the requirements
Rules may not compel the outcome in certain cases
Rules may not apply easily to this special case
Where rules are contradicted by compelling principle reasons
Judges apply and draw on general principles of justice and fairness in hard cases
Judges do not have discretion to disregard the principles
BUT Judges do have discretion that is guided by the rules and principles
There is always one right answer, which can be found through legal reasoning
Judicial decisions can result in new rules which did not exist before the case
Judges should not make policy decisions – frowns on judicial activism

What is the role of the government?

The legislature is best suited to make policy decisions
There is political responsibility – rules cannot be arbitrary
They are directed by arguments of policy and consideration of principles

Liberty – John Stuart Mill

When can the law interfere with private choices?

Generally, the law is used to enforce the moral code of society, to regulate human behaviour, and sometimes used as a coercive institution. (BUT… law also gives us individual liberty)

When the law interferes with individual rights, it does so wrongly and in the wrong place – each individual must be presumed to be the best judge for him or her self
Presumption in favour of liberty, so interference must be justified
The harm principle: restriction of individual liberty to prevent serious harm to others

What is good law? The Harm Principle

In return for the protection society provides, we owe an obligation to contribute to the defence of that society, and not to harm others within it
Mill believes this is the only legitimate justification of individual rights infringement
Uphold liberty of thought, feeling, expression – even if others find it foolish or wrong
Right to liberty applies only to persons in possession of mature faculties
Mature faculties = capacity of being guided to their own improvement by conviction or persuasion
Children and barbarians (including backward states) do not have mature faculties
Harm: if my extravagance causes damage to my creditors, I should be punished for that damage, but not for the extravagance itself as it is my choice to be extravagant
Society should not protect the unfit (those who harm themselves)

What is the role of judges?

judges are supposed to be neutral & impartial between the parties
supposed to uphold individual rights against the state

What is the role of the government?

The limits of authority: authority necessary to prevent violent anarchy, but itself inherently despotic, must be limited and controlled
Recognising political liberties or rights
creates zone of immunity from government authority; freedom from authority
creates freedom from tyranny of the majority
Constitutional checks on governmental authority
Authority as delegates of the people (elective and temporary), creates an apparent unity of interest between the governing and the governed (but- beware tyranny of the majority)

Law and Economics – Susan Dimock

What is good law? Efficiency

law as efficiency describes how (some) legal rules work, and why laws tend to develop as they do (towards efficiency),even where the claim is that laws are adopted for other reasons
Normative theory: good legal rules are efficient rules (we ought to have them, and should try to identify their characteristics and develop them)
The point of law should be the maximization of social wealth; law to be used as a tool to achieve, facilitate this – bad laws are still law, but they should be changed
“Wealth” here not merely money; but all “measurable satisfactions”
Note: Assumes people are rational beings and will always choose pareto-superior outcomes

Economic Models

Pareto-Superiority

Pareto-superiority occurs when the latter state of affairs (S2) is better than the previous state of affairs (S1).
A transaction between two parties, for example, will be pareto-superior when one person is better off in S2 compared to S1 and the other is no worse off in S2 than S1.
This can occur in two ways.
In win-win situations all parties benefit from the deal.
In win-lose situations one party benefits while the other does not, but the winner fully compensates the loser while still maintaining some benefit.

Kaldor-Hicks

Response to some of the shortcomings of the pareto-superiority approach
In the Kaldor-Hicks approach S2 is efficient if and only if the winners could compensate the losers so that no one is worse off in S2 than in S1, and at least one person remains better off.
Kaldor-Hicks recognizes that third parties are impacted by these transactions.
A two party transaction may impact many other people in a negative (or positive) way.
Under the Kaldor Hicks model, any neighboring losses should be accounted for when we are looking at social wealth. BUT… It is enough that the losers could be compensated.

CoaseThereom

Where transaction costs are low and where neither party engages in “strategic” distorting behaviour and where information is “perfect”, individuals will reach efficient results by behaving as if each had compensable property rights - we don’t need property rights under these conditions
Assigned property rights may be necessary to promote efficient outcome; allows society to choose and assign value (through property rights) to achieve desirable outcomes
Rights generally conferred, recognised to extent that this is efficient

What is the role of the law?

The common law has developed to give judges considerable power to do this by creating and protecting rights, protecting transactions, and establishing procedural rules to increase efficiency.
Legislators want to get re-elected so it is not uncommon to pass legislation that helps a certain interest group while making things worse for many others. This outcome can be one that does not maximize social wealth at all.
Regulations and taxes make certain people internalize costs (that would otherwise be external to deal), and allow the market to reflect real social costs
Law can work to compensate the loser, turning uncompensated K-H into Pareto-Superior

Property Rights

Objective of property law rules/rights not to produce equality, but to protect entitlements and their efficient use and transfer

Tort Law

If people who do not take reasonable caution to avoid harming others, do not have to “pay” for that creation of risk, and it materialises as harm to another, the creation of risk is “discounted” (and artificially encouraged), an inefficient outcome (the benefit to D is not having to be careful)
Costs do not “lie where they fall” but are borne by the wrongdoer/defendant (“compensating” the plaintiff; restoring him to the position he would have been in had the event not occurred)

Vicarious Liability

Employer has some control over employee and their actions – plaintiff is innocent
Employee has no significant money to pay damages - Employer should bare the burden, not the victim plaintiff

Contract Law

Creates framework for efficient exchange; facilitates trust and confidence, thereby encouraging trade (especially among “strangers”)
Standards reduce transaction costs (basic rules need not be re-established every time)
Rules encourage use of formal/written contracts, relatively detailed terms providing for contingencies

Criminal law