95523357-Intro-to-Law-Reviewer-2012-1.pdf - \u201cDworkin\u2019s Interpretative Theory\u201d DAY 1 A OVERVIEW OF THE COURSE(Powerpoint Presentation THE CONCEPT

95523357-Intro-to-Law-Reviewer-2012-1.pdf -...

This preview shows page 1 out of 37 pages.

You've reached the end of your free preview.

Want to read all 37 pages?

Unformatted text preview: “Dworkin’s Interpretative Theory” DAY 1 A. OVERVIEW OF THE COURSE (Powerpoint Presentation) THE CONCEPT OF LAW Positive laws are those that may be promulgated, passed, adopted, or otherwise posited by an official or entity vested with authority by the government to prescribe the rules and regulations for a particular community or otherwise they are the written rules and regulations enacted by government. Natural law is purportedly based on universally accepted moral principles, "God's law," and/or derived from nature and reason. It is the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed Divine natural law represents the system of principles believed to have been revealed or inspired by God or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Human law emanates from human reason provided that it has the following requisites: The law must be a measure of things, and such measure must be certain. Also, a person’s participation in eternal law is not perfect. It involves a certain level of mode and individuality. This imperfection is mitigated by human reason, such as providing legal sanctions LEGAL PROCESS Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. B. International law is the body of legal rules governing interaction between sovereign states (Public International Law) and the rights and duties of the citizens of sovereign states towards the citizens of other sovereign states (Private International Law). Rules and Principles: The Idea of Fit • Legal interpretation, when properly carried out, will require the making of moral judgments o Morality is intertwined with and will have a great influence on the interpretation of laws • Laws are rules not just confined to the written codes, judicial decisions and official documents or a mere product of power struggles and politics. Rather, they are a reflection of an underlying government philosophy. o Govt philosophy = moral principles on the purpose of government + relations of the govt and the individual • Moral principles behind the laws then serve as the basis in finding answers for hard cases, if the direct solution cannot be found in the written laws themselves. • How does one determine the moral principles behind the laws being adopted by a community/group of people? o By looking at the DEGREE OF FIT between the moral principles and laws/rules § DEGREE OF FIT is measured by looking at: 1. Logical consistency – total consistency is impossible, expression (through the rules/laws) is the outcome of consistency 2. Power to help provide a rationale – can explain why most of the rules being followed and adopted are the good ones th Fitting the 4 Amendment (of the USA) : PRIVACY th • US Constitution, 4 amendment: “Right of people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures” o Search for evidence in one’s home requires the officers to have a search warrant à for the officers to get one, they have to pursue the judge that they have probable cause that the person to be searched did commit the • crime. If no search warrant was obtained, the evidence collected will be treated to be inadmissible in court. th The protection of privacy “fits” the 4 Amendment o It is a moral principle which places restrictions on the government in implementing anti-­‐criminal measures o Privacy – others may not intrude (the homes, papers, person/body) without the owner’s consent; right to non-­‐disclosure of information that may be used to harm the person o Restrictions may not be absolute, it should find a balance between effective implementation of the law and respect for the rights of the people by the government and the other citizens § Case in point: Olmsted v United States • This case involved the wiretapping of a suspected criminal’s phone by the government without a search warrant • Because technology was not yet apparent to th those who wrote the 4 amendment, they only imagined physical intrusion as an invasion of privacy • The court decided that this was not a violation because it only served the government a gathering of information, not a direct physical invasion of the criminal’s person or any of his property. o BUT, in using the “fit theory” of Dworkin, we can conclude that this th is a violation of the 4 Amendment o Because, again, there are 2 aspects to privacy: physical and informational o More correct conclusion: wiretapping without a search th warrant is a VIOLATION of the 4 Amendment C. D. th As a support for the 4 amendment, the right to privacy can still be interpreted in different ways. Some may actually think that wiretapping is a violation, but the random drug testing for employees isn’t. While others think that privacy stretches to most, or almost all the intimate choices we make, such as using contraceptives or not. Although they are all varying perspectives on the concept, they are still logically consistent, they are th still “fit” to give the 4 amendment a rationale. But, if we are to make a choice among all, how are we to choose? At this point, MORALITY steps in. The Role of Morality • In choosing among the “fit” principles, one has to choose which is the best morally. • For example, a more restricted privacy principle (right to choose to use contraceptives or get an abortion) may not be morally upright, then the broader principle (right against intrusion), which is moral, can be treated as part of the law. • Again, by having these principles, which provide a rationale to the written laws, we can actually consult these principles if we are to resolve hard cases whose answers can’t be found directly in the written laws. • To decide which one is moral is an individual choice. Although a case has been decided incorrectly, it still bears the good faith of the judge who went through the process of picking out which is moral or not, consulting his own values at that. • It is morality, which gives the law more authority and integrity, moral laws are not just a product of coercion, authoritarianism or rather, dictatorship. It is a set of laws, which has been adopted by a community because they believe that those laws stand for their personal values. The Challenge of Skepticism • Moral laws are those which have the most room for disagreements and second-­‐guessing, and this invites a deep skepticism in the law o • • Although disagreement may weaken the “fit” principle of Dworkin (that tells us that written laws are backed up by principles), by leading to point that really there are no right answers on which everyone can agree on (because again, moral choices are to be made individually) o BUT Dworkin tells us that, it doesn’t mean that we argue so much, that we can’t arrive at a correct answer, there is no correct answer at all. 2 kinds of skepticism: o External skepticism – holds that there is nothing objective in the world which can make a statement about our moral obligations true or false § It poses the possibility that everyone has their own biases, so not one can say that his view is more apt than the other, because their standards are not the same. § Simply put, there is no standard ruler for moral questions as compared to the determination of someone’s height (which uses the metric/English system) § BUT, Dworkin counters this questioning by saying that making moral choices are far from the methods of the objective realm, one does not use a rigid ruler. Instead, moral questions and answers are as varied as those individuals who pose them • Making moral decisions does not have to be based on facts which are perceivable by the senses • It is an exercise of REASON rather than empirical judgments § BUT, BUT the author tells us that Dworkin’s view still has loopholes, better to put it in a way that instead of moral decisions not having a standard rule, it is the mode of argument (or mode of arriving at the answer) which is varying o Internal skepticism – this view actually trashes the whole “fit” theory of Dworkin, it tells us that there are no principles, which back up the laws. Laws are just a product of a leader’s E. whims and will, mere exercise of power by the one who controls the government § That politics is unjust and oppressive, that the laws coming from the government favor those who rule it (the wealthy and the powerful) Assessing Dworkin • Unlike Aquinas, Dworkin that does not hold that unjust rules are invalid laws • Unlike Fuller, Dworkin believes that legality of the laws does not oblige the people to actually follow o Locates the foundation of laws in the integrity of it • His views, although it seems like, does not give the judges the authority to just whimsically decide the cases (because how they will resolve it will depend entirely on their moral beliefs) rather, these judges are highly encouraged to look at the other decisions, because these decisions, especially if they decide as a majority, reflects the morality of a bigger population, the morality of a society. • Critics assert that it is faulty to look at morality as the source of authority of the law, rather there is a superior theory, Legal positivism which poses a more apt explanation LEGAL POSITIVISM • This view rejects the traditional natural law theory that genuine laws are necessarily just laws. • This view also rejects the necessary links between morality and laws (rejects Dworkin) A. John Austin’s Theory of Law • Law as a Command o Laws are laid down by the rulers (or a sovereign independent political society), to be followed by those who are under them. § Sovereignty can only be defined by power, not by any other standard such as morality or justice Though might does not make right, it can be implied that (for Austin) might makes sovereignty, and so, might makes positive laws § No need to think of the common good, not at all These laws impose obligations to the followers, and if they fail to abide by it, they will face undesirable consequences (sanctions) Laws are considered general commands § They don’t stop at telling you to do a specific thing at a specific time, but it tells you to act in a certain way all the time, continuously Divine laws: God à creatures; Positive law: rulers à followers, constituents Positive morality – those rules accepted informally by a group of people (i.e. club, organization) Though, not all the violations of these laws may not amount to punishment, they may just receive a lowly treatment from the other members of the group or the society Austin’s theory answers the question “What is law?” as distinguished from “What ought the law be?” For our legal obligations, we owe allegiance not to the higher being beyond the empirical world, but to the ruler of the territory we occupy in this world. Condemns the natural law theory that if a law goes against the Divine law, it is not binding § It is an abuse of language, because this is all nonsense § If a person obliged by some positive law and violated some of it goes by this “reasoning”, judges should treat this as an inconclusiveness of reasoning and should be punished § May also lead to anarchy, tyranny and hostilities because traditional natural law is too ideal and preachy § Morality is not entirely set aside, because the decision of the rulers in adopting the laws is still a reflection of his own morality and the morality of the society he belongs to. It’s just that the theory tells us that no individual can exempt himself from the rule of law just because he believes that it does not go with the Divine Law. Because again, in obeying the laws of the sovereignty of the territory you occupy is different from obeying the Divine, which is the source of all sovereignty. § o o o o o o o o B. Assessing Austin • Clear cut explanation in approaching the natural law theory • Although it says yes and gives reasons to its answers to the question “If a law enforced by the courts is contrary to morality and Divine laws, is it still valid law?”, these reasons are not strong enough to convince someone who says no. • That the adoption of just traditional law may invite anarchy is also questionable, because the application of a law to a society may be too practical; it can be rejected by some theorists. o Moral progress through the rejection of unjust laws may be achieved, but what Austin asserts is that there may be a lot of moral standards, which could inevitably amount to confusion. o Take note that Aquinas lived in a medieval world dominated by just one Church, while Austin lived in a modern world with competing creeds and beliefs. o But then again, moral argumentation may actually lead to genuine moral progress. H.L.A. Hart: Law as Primary and Secondary Rules • Hart is considered as one of the most prominent positivist critics of Austin A. Types of Legal Rules • For Hart, Austin provides for a good start for the positivist theorists but his theory is not adequate enough to cover all kinds of laws o It may be good to cover criminal laws and tax laws (because these laws prohibit or command someone to act) but NOT B. for contract law (which empowers the people, asserts rights and obliges those who have an established duty) § Laws like the contract law are called power-­‐ conferring laws § Although these rules can also be likened to a command: they are written to alter something in the world rather than describe it. It empowers the person to do something that they may not be able to do without the law. While command laws change the world by requiring that person to do something, otherwise he will face undesirable consequences. § Declarations of the sovereign (power-­‐conferring) :: Commands of the sovereign (Command laws) Legal obligation: Government and Gunman • Hart critics the analogy of Austin that for the people to follow, to have a sense of moral obligation, they should be informed of the possibility of a punishment, of a negative consequence which can happen if they failed to abide. And this approach, as Hart tells us does not distinguish the government from a gunman. • For a victim of a gunman, the obligation that arises from the command does not source from any moral conviction that if the victim follows, he is doing what is good for himself, for the gunman and for everyone else. But, he is abiding by the commands just because of the possibility of a negative consequence or a punishment (i.e., torture, death). • Hart asserts that governments should differentiate itself from a gunman because a threatened following does not create any obligation at all (moral, legal etc). • To do that, Hart explains the idea of an obligation through the idea of a rule. o A rule exists if generally: § People act in a certain way, AND § People regard deviations from the way as something to be criticized o Condition is: § External if it involves outward behavior § Internal if it involves the attitude people take Hart thinks that the attitude present in the people (that deviation from the rule is a reason to criticize a violator) in following the rule is essential because without it, it is as if these people are just following regularities/routines which they can perceive, thus there is no rule at all. o There is a rule if there is a social obligation exerting pressure on the individual to actually abide by it. § That would imprint value and importance to the rule, to the point that the follower may set aside self-­‐interest to give priority to it o Not all societies impose legal obligations because not all of them have legal systems. Primary and Secondary Rules o I. Primary Rules: Rules that imposes obligations. Secondary Rules: Not considered as unimportant but rather in the sense that they could not exist unless there were other kinds of rules, namely, rules that impose obligations. • • • II. • st 1 rule-­‐ Rule of Recognition: A society with legal system that has a rule that singles out the rules that impose obligations in the society. The rule helps people recognize the existing rules under which they will be held officially accountable. nd 2 rule-­‐ A society must have rules that specify how legally valid rules can be changed. This could help the society adopt to the changing conditions by making it possible to eliminate old rules and enact new ones rd 3 rule-­‐ A society must have rules that empower specific individuals to enforce and apply society’s legally valid rules. This helps society ensure more effectively the obligations it imposes on its members are met. Legal system A system that brings together both primary and secondary rules. In any functioning system, the people must generally comply with the legally valid primary rules, and public officials must accept the secondary rules and the primary rules identified by the rule of recognition. • III. • • • • IV. • • A union of primary and secondary rules makes it questionable whether international law, at least at the time the Nuremberg defendants committed their atrocities, constituted a genuine legal system. Hart’s View of Legal System People comply to rules from fear of punishment that might be inflicted on them. People generally perceive valid primary rules as command backed up by threats. Existence of a legal system is a matter of degree, not an all-­‐or-­‐nothing affair. But the absence of secondary rules covering the enforcement of the primary rules seems to be a rather large gap. Trial of the Nuremberg defendants was the best feasible way to promote the establishment of International rule of Law. Assessing Hart Idea of legal Obligation: To draw a line that has governments operating by secondary rules on the one side, and both gunmen and arbitrary governments on the other. Harts’ secondary rules are very much like Fuller’s inner morality of law: both Hart and Fuller are providing accounts of what is for a government to operate under the rule of law. However, Fuller goes on to contend that a government abiding by his inner morality creates a prima facie moral obligation to obey laws, while Harts resists the conclusion that a government ruling through a system of primary and secondary rules necessarily creates any such obligation. • • II. Obligations and Sanctions • • • Hart’s International Law I. Sources of Doubt • Is International law really law? • The absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. • The absence of these institutions means that the rules for states resemble that • • simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. International law not only lacks the secondary rules of change and adjudication which provide for legislature and courts, but also a unifying rule of recognition specifying 'sources' of law and providing general criteria for the identification of its rules. Two principle sources of doubt concerning the legal character of international law: Both arise from an adverse comparison of international law with municipal law, which is taken as the clear standard of what law is. o First. Law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. o Second. States are fundamentally incapable of being subjects of legal obligation, and contrast the character of the subjects of international law with those of municipal law. What is meant by saying of a whole system of law that is 'binding'? The rule in question is a valid rule, and under it the per...
View Full Document

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture