Legal Consciousness, Hartog, Judicial Decisionmaking - Legal Consciousness Theory Theoris t Natural Law Aquina s Natural Law Fuller Positive Law Austin

Legal Consciousness, Hartog, Judicial Decisionmaking -...

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Legal Consciousness Theory Theoris t Law as Law found in Unified /fragmented Natural Law Aquina s Codification of transcendent moral principles Rules Unified Natural Law Fuller System governed by procedural principles Procedures unified Positive Law Austin Commands given by a habitually- obeyed sovereign Commands Unified Positive Hart Primary and secondary rules shared perspective of members of a society about rules and procedures unified Legal Consciousne ss Hartog An arena of conflict Conflicting perspectives or individuals or groups within a society fragmented Hartog -law is not understood easily since it changes by socioeconomic circumstances Pigs in New York City -1800s- pigs in NYC streets0they are basically a sewer system and they were food for the poor; the rich don’t like it -1809-Common Council (publicly elected) passes a law saying that a pig must be marked and if not then it will be taken to the pound-it is implicitly implied that people have a right to keep pigs -mayor-picked by the state, is head of the court -1819- People v. Harriet-court decides that pigs are a nuisance -mayor says that the court can declare nuisances -defense-court is not the place to declare a nuisance and the council said pigs were ok -the pig keeper was found guilty -Hartog’s central question- did pig owners have a right to keep their pigs on the streets in the first half of the 19 th century? -positivist answer-no; HLA Hart would say that the secondary rules were followed and that court has rights to outlaw “nuisances”; Austin would say that the mayor (sovereign) must be obeyed, also jury expressed (carried out) that vision of the rules in declaring the pigs a nuisance -legal consciousness answer- it depends on who you ask -pigs stay on the street of NYC until 1850 -laws were passed by the Common Council after 1819 and cases were decided by courts that assumed that people had the right to keep pigs on the streets (regulation and pig catchers- people are compensated when pig is taken so they had a right to the pig) -pig keepers did not think that they were breaking the law Legal Consciousness Critique Positivist Response Pigs remained on NYC streets until 1850 Laws de jure are still laws even if
they are unenforced Laws were passed by the Common Council after 1819 and cases were decided by courts that assumed a right to keep pigs on the streets in many circumstances and areas Ignorance of the law does not mean that the law doesn’t exist Pig keepers who kept their pigs on the streets didn’t see themselves as breaking the law Ignorance of what the actual law does not change what the law is Hartog’s Argument -there are often different conceptions about what the law is -sometimes different institutional authorities send opposing signals about what the law is -law is “an arena of social conflict” within which a number of alternative social visions contend -positivism only works if the vision of law is uniform -for Hartog, there is no way to decide who is right

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