Natural Law St. Thomas Aquinas 1.What is the Source of Law? God, Nature, True law ultimately derived from higher, non- human, divine source. It is discovered by humans through exercise of reasons Gods Law = Eternal Law; Human Law = Natural Law 2. What is the Nature & Purpose of law? Teleological in nature à purpose à to achieve Common Good If a Law does not have this function it is NOT a law, and does not need to be followed Hall: if law doesn t have a purpose it is an empty rule pretending to be law, like a knife that cannot cut then is not a real knife To take us to the Common Good (that is what God wants for us) Law is morally right, and humans have morally right aims, but what is that aim in a diverse society? God is ultimately the source of these laws and his objective for us is that he wants us to get to the state of all living in the common good 3. What is the COMMON GOOD? God sees the common good as essentialist idea that there is one common good (not the same thing as majoritarian preference or utilitarianism which is discussed by the positivist Bentham) Obedience is essential to achieving the Common Good 4. When are laws Valid? i. Must be directed to the common good (community not individual) ii. Must follow practical reason iii. Must be made by a valid law maker (Not a democracy, a natural ordered relationship) iv. Must be promulgated (Written and known) 5. What is the role of Judges for Natural Law theory? Judges must follow the legislation not because of parliamentary supremacy, but instead because of the few legislators possessing greater authority Judges should apply the written law unless it contains anything contrary to the natural right and morality à then do not apply 6. Discuss the Spirit of the Law for Aquinas: Spirit of the Law = God s purpose which is to achieve the Common Good, shouldn t be deviated from Letter of the law = written, may be deviated from if it is contrary to the sprit of the law RELATIONSHIP OF LAW TO MORALITY Law IS morality because GOD MAKES LAW. Law by reason is MORALLY RIGHT. No obligation to obey non laws ** So, Natural Law is basically saying God makes all law and thus law is morality** Then comes the positivists saying that law and morality are actually SEPARATE 1
Classical Positivism John Austin **AS A RESPONSE TO NATURAL LAW THEORY, POSITIVISTS SAY THAT THERE IS NO MORAL CONTENT IN LAW, SEPARATION THESIS à LAW IS SEPARATE FROM MORALITY à HOWEVER THERE IS A MORAL OBLIGATION TO OBEY ALL VALID LAW** SEPARATION THESIS = law as separate from morality There is a moral obligation to obey all valid law A law is a human artifact, men made ità NOT God John Austin - 3 DIRECTIVES GOVERNING HUMANS: 1. God s Law: Similar to TA s divine/natural law Whatever this law is it is NOT our business of OUR law à this is the province of religion 2. Positive Morality: manners, customs, rules, norms (may be immoral) Norms, International law, English Constitutional law à these are not really laws because they don t meet the pedigree test Social norms = expected habits or customs of society that are viewed as good o There is internal and external pressures to follow social norms, but no state pressure à although sometimes norms can become so important or highly valued in society that they become laws 3. Positive Law à command issued by superiors to subordinates, backed by sanctions = Pedigree Test (may be immoral) Was the law created in accordance with the rule of law- making jurisdiction? Command of the Sovereign: Who is our Sovereign in Canada? à Parliament à this is problematic for Austin because according to him the Sovereign cannot be bound by law, but our Sovereign is bound by the Constitution/Rule of Law Also there can be no law during civil war and there is no such thing as International Law b/w there is no sovereign governing it VALID LAW FOR AUSTIN: i. Command à must be written à bc it must be empirically provable ii. Issued by Sovereign iii. Backed by Sanctions What is the ROLE OF JUDGES for Austin? Judicial decisions are specific commands, as opposed to the generalized rule (legislation) Just carrying out limited authority à Austin s theory CANNOT account for what judges are doing when they apply the Common Law (Hart answers this) What is the Role of Legislature for Austin? Legislature = the Sovereign (for us, because our Constitution is WRITTEN, it is our Sovereign) à but for Austin their Constitution wasn t written so it couldn t be) Legal Positivism and Legal Radicalism Separating law and morality allows us to question the content of the law Inquiring if laws are any good allows us to determine if we should follow them If laws are NOT any good we don t have to follow/ respect them 2
Modern Positivists - HLA HART What is Law? Law s are human artifacts; not dependent on moral content for lawness Disobedience to laws à May be warranted where laws are immoral i.e. Nazi Germany Austin would say that these laws are valid and should be obeyed STA would say that immoral laws are not laws PRIMARY RULES Tell us what we can and cannot do: prescribe, prevent and regulate behavior Confer upon citizens the power to create, modify and extinguish rights and obligations Actions individual must or must not do SECONDARY RULES Regulatory in Nature Bring primary rules into being Concerned with primary rules themselves, how they are: ascertained, introduced, eliminated, and varied. Rule of Recognition Jurisdiction requirements for valid laws to be recognized by officials within the legal system Must be consistently applied because they are obligated to apply them (more than a mere command) Critics say the rule of recognition is just another way of saying morality Rule of Change: Enables a society to add, remove, and modify valid rules Rule of Adjudication: Provides a mechanism for determining whether a valid rule has been violated SEPARATION THESIS Law and morality = separate systems à 2 sets of rules standards When law and morality clash, as individuals we must decide whether the obligation to follow the moral rule is greater than the legal rule Law may be law even if it s too evil to be obeyed à if is up to the individual to choose the moral standard Rule Governed Practice Laws have ought claims on us Legal rules are special; rooted in the rule of recognition Separation between law and morality, these TRGP à ideas that float through the law very similar to what DWORKIN LATER CALLS PRINCIPLES Principles of Fundamental Justice à Hart would identify these as terms of rule governed practice What Judges Do Legal Rules are expressed in general terms; there is a settled core of meaning The sun à facts of the case, and the law that it invokes The moon à settled core of meaning; understanding of what the law is that is agree on by everyone The Penumbra à Cases where the overlap is NOT perfect In HARD CASES: judges draw on and apply these terms when exercising discretion in the penumbra/ hard cases. They are not implementing their morality they are implementing the Terms of Rule Governed Practice 3
Other Positivists: Bentham/ Raz BENTHAM Law is a man made artifact, to be evaluated, crafted, NOT on the basis of morality, but instead UTILITARIANISM à Does this rule maximize utilitarianism? If it does then it is a valid law Different from COMMON GOOD à utilitarianism is concerned with the greatest good for the greatest number of people, CG is concerned with what God thinks is the best, doesn t care about the greatest good for the greatest number of people RAZ SERVICE CONCEPTION à law claims authority and that authority is justified when authority actually performs a service for its subjects à helping them really act better Comparisons HART address some of the critiques of positivism o Law doesn t have to embody morality o Law in the Penumbra Traditional Positivist would say: settled core only is law Realist would say: laws are incurably incomplete and judges should decide penumbral cases with reference to social aims AUSTIN = Must evaluate laws through congruence with (divine) morality o Frequent Coincidence à as laws have historically developed, laws may in fact embody moral principles BENTHAM = Must evaluate laws through congruence with utilitarian value o Recognized that a constitution, binding on the Sovereign might draw at least some of its content from moral principle o Law is a means of social control So, all these positivists are saying. Law is Separate from Morality, and then comes Lon Fuller and his Ideas on MORALITY OF LAW he says that Hart is avoiding the use of the word morality! 4
Morality of Law with Lon Fuller INNER MORALITY = something about/intrinsic to the nature of legal systems tends towards morality à inner morality à Morality as a PROCESS (not content) à its not all or nothing, there are different degrees of inner morality that a legal system can possess Bad law was not bad law merely bc of its evil ends BUT bc it abandoned the process of law and therefore, the internal morality of law PURPOSE OF LAW = TO PRODUCE ORDER AND STABILITY à THIS IS DONE THROUGH INNER MORALITY à 8 principles, how rules fail to be law: 1. When decisions are ad hoc (disconnected) 2. Where rules are not public, knowable 3. The abuse of retroactive legislation 4. Where rules are not understandable 5. Where rules are contradictory 6. Where rules cannot be obeyed 7. Very frequent changing of rules so person cannot orient their behavior 8. Disjunction bw rules, and rules as actually administered **DISAGREES WITH THE POSITIVISTS, ESPECIALLY HART. 1.What is Lon Fuller s main criticism of HLA Hart? Fuller says: Hart avoids using the word morality. The ought claim is that people follow laws because they think laws are good, and it would be good for society to follow laws à this is morality! Rule of Recognition is inadequate, doesn t explain WHY people follow the law Recognition is grounded in morality Positivists assume evil aims have coherence and inner logic, like good aims, this is not accurate. When ppl have to justify their decisions, the effect will be to pull those decisions towards goodness. 2. What does Lon Fuller require for a good workable Legal System? For a legal system to be workable the hallmark of a workable legal system is stability and order à so in order to have this working legal system which achieves order it must look like a system like ours à democratic legal system Rex (8 principles) had a lot of trouble because his legal system didn t have these features Fuller says these systems create Goodness and create morality à this is the INNER MORALITY OF LAW 3. What is meant by FIDELITY TO THE LAW? They have just come from world war 2 à what happened to the players in the German Legal System is that they moved to far away from morality and they became primitive positivist John Austin types and by doing this they lost their true fidelity to the law We owe this fidelity to the law and to morality à fidelity doesn t just mean fidelity to the written words produced by the dictator à fidelity to the law is fidelity to laws of inner morality and goodness if you are a player in the legal system that is your oath and that is what you owe. Lon Fullers 4 MAIN POINTS in rejection to the Separation Thesis i. Social Acceptance of Legal Rules depends on a grounding in external morality - the belief that they will produce good order, not just order 5
ii. iii. iv. Law itself has an Inner Morality This is the idea that there is something about the nature of legal system which tends towards morality Morality is the process, not the content Bad Law (Nazi Germany) à not bad law merely because of it s evil ends, but because it abandoned the process of law and therefore the internal morality of law Obligation to Obey Law and the problem of the Immoral Law POSITIVISTS CANNOT ADEQUATELY ANSWER THIS QUESTION The positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws The positivist answer that some laws are so immoral that you don t need to follow them is not a real answer The core and the Penumbra What Judges do according to Fuller o When there is an ambiguity à judges must look at the LEGISLATION and determine what the Purpose and Mischief were à inner morality *** In the 1970 s Dworkin also came along and he also rejected Positivism particularly HLA Hart **** 6
Law, Principles, and Rights (Modern Natural Law) Dworkin Writing in the 1970s, Dworkin rejects Positivism. He rejects the Distillation of the Positivist Position: i. Law is a set of rules identified as law with reference to a master rule à rule of recognition à ii. iii. disconnected from morality Where no legal rule appliesà judges exercise discretion à penumbra cases à drawing on the terms of the rule governed practice Legal rights and obligations are the product of legal rules, with no a priori or independent existence apart from those rules à Dworkin rejects all 3 of these propositions from Positivism and says that Law contains not only rules, but principles and the role of principles in the law undermines the positivist position 1. What are the Principles that Dworkin discusses? Hall s Metaphor: Principles flow in an underground stream that constantly flows through the law and informs the law; flows from the past and also into the future. It is the same stream but it is dynamic and it changes over time What happens in the world socially and politically à these principles change and every time a case is decided based on these principles à we need to understand what these principles are in this point in time Even where a case is not covered by a rule it will be covered by principles, and they are legally binding because they are part of the law Law lives through adjudication and judges apply and draw on these principles of justice and fairness in that process (legal reasoning) 2. So do judges then exercise discretion? No because they are drawing on legal principles to determine cases. Not using personal discretion à judges are simply interpreting principles ONLY judges can weigh principles in the process of judicial reasoning Judges DISCOVER rights and duties based on principles Principles are most important in hard cases à they can stand for a new rule à which did not exist before this hard case We can understand these cases as chapters in a chain novel à the over arching theme for each of these chapters is that law if fair and law is good à basic legal principles à principles of fundamental justice Not only do we need to deal with what came before à we need to try and explain friend s previous chapter consistent with the law à to make a good story. Try to set up future chapters so that they can run with the theme as well. Principles: Provide competing reasons that must be weighted according to the importance of their value Quality of weight that rules do NOT have They are NOT Super Rules, they work together with rules to comprise the law Policies: Subset of Principles Social goals pursued on behalf of some segment of the population Competing sets of goals 7
Decisions around policy are left to eh legislators, but judges to refer to policy sometimes but do so in a way that is consistent with legislators Rules: All or nothing application depending on situation Don t have a weighing quality if 2 rules conflict one is valid and the other is not E.G. Unreasonable interference with the use and enjoyment of property, whereas the principle considers the weighing of the policy matter and the principles behind the rule, E.G. the power/freedom conferred by a property right to the lawful use of property 8
Liberty (Mills) Liberty as Humanity the idea of autonomy being a core of independence lying at the centre of what it means to be human à denying people of their liberty is denying them of their essential humanity. If my extravagance causes damage to my creditors, I should be punished for that damage, but not for the extravagance itself 1. Presumption in favour of Liberty If I am not harming others, I can do as I LIKE, I know what is best for me, not other people. Limit to this à slavery à the one thing you cannot do is sell yourself to slavery because you have total freedom unless you are selling your self because you are totally abolishing your liberty Should society abandon guidance of the unfit (nominally mature persons incapable of self government)? According to Millsà NO. The only exception to the presumption of liberty, and using the paternalistic principle should be towards those of non age and barbarians (those unable to make decisions for them selves, lacking mature faculties) à The unfit however had their chance in society, during their period of childhood. 2. What are Mill s Justifications of Law s Restriction of Individual Liberty? He considers the following, but his only justification of restriction of liberty is the Harm principle à also the Paternalistic principle for people of non age and barbarians Harm Principle Each individual has the right to act as he wants so long as these actions don t harm others Restriction of individual liberty is to prevent serious harm to others Paternalism ONLY FOR CHILDREN AND BARBARIANS Restriction of Individual Liberty is justified to protect that person from harm caused by the exercise of liberty Paternalistic laws = state imposing limitations on liberty to stop you from causing harm to your self Legal Moralism Restriction of individual is justified where actions of individuals undermine social: or community morals/ values Offence Principle Restriction of individual liberty is justified to ensure others are not unduly offended (public indecency) Hall s metaphor: Authority as a hawk/falcon/vulture à it has sharp talons poised to attack other creatures that would come and hurt us: Inherently Despotic: We must always be cognizant of the fact that the powerful bird could turn on US Limited and Controlled: therefore the bird must be in our command 3. Mills view on the Tyranny of the Majority: Majority opinion may not be the correct one On a particular issue people will just align themselves with one side à the side of the greatest volume will prevail à but is not necessarily correct 4. What does Mill think of Polygamy? The restriction on Individual Liberty to engage in Polygamy would NOT be justified Mill acknowledges that polygamy may be a problem for his thesis because he recognizes that polygamy may have negative or deleterious consequences on a woman s liberty 9
GERALD DWORKIN (PATERNALISM) CHALLENGING MILL S PATERNALISM Mill s view that a person cannot rightfully be compelled to do or forbear because it will be better for him precludes paternalistic legislation to which fully rational individuals would agree à are goodà such as health and education, that any rational person needs to pursue for her own good. Dworkin says that the attainment of basic goods like education and health can be legitimately promoted by using states coercive force. Mill says that interference with the individual is WRONG à because each person is ultimately the best situated to judge their own needs, HOWEVER à economic interference might be okay (still a presumption against this which must be rebutted) The only exception is a person CANNOT sell themselves into slavery, slavery would offend ones autonomy so perhaps the state can intervene when autonomy is at issue Dworkin says that paternalism is justified to prevent long term or irreversible damage to that person s autonomy, and where the purpose of interference is prevention of harm to that person. SOME COMPARISONS: Bentham would agree with the harm principle in saying that it is good for utilitarianism however it is not the only thing we need to consider John Austin would also agree Aquinas would also say that harm is actually immoral action and we need to not harm others à to achieve the Common Good Positivists: it is in the interest of everyone not to be harmed by others THE PROPORTIONALITY BETWEEN DEPRIVATION AND RESTRAINT Prohibition = no mountain climbing Restriction = mountain climbing but with a helmet Must look at how significant activity is in terms of the autonomous self à is mountain climbing just a hobby or is it integral to personal identity, self worth, happiness? LEAST RESTRICTIVE ALTERNATIVE in terms of autonomy- MUST BE CHOSEN, and the burden of proof must be on the authority 10
LAW AND ECONOMICS LAW AS EFFICIENCY Hall s analogy: Like plants growing towards the sun the sun is the ultimate goal of efficiency, if the plants stop growing they will be discarded and replaced. 1. What is the purpose of laws? Maximization of social wealth If laws are not good, it doesn t mean they stop being laws, if we go through this purpose of evaluating them then laws need to be changed to become more rational and more efficient to promote social wealth Like positivism evaluate laws reference to morality, except evaluate them in regards to efficiency 2. What is Social Wealth? Is it money? Law and Economics are not just talking about money, they are talking about things that we value à what needs to be globally enhanced is value Black Acre example: I value blackacre more than my money, and you value money more than the land, so we do this exchange à this SWAP is actually maximizing social wealth because we both end up with what we VALUE more 3. Pareto Superiority One state of affairs is better than another because at least one person is better off in one state than in another and nobody is worse off. At least 1 winner and no losers Win- Win transaction, Winner fully compensates loser for loss, but still comes out ahead Pareto Optimality = where no further pareto superior moves are possible 4. Markets and Externalities Externalities à widget production beneficial to X and Y but produces (example) pollution which falls on A who was an EXTERNALITYà the cost of this externality falls on A, not the original X and Y Externalities are by products of the transactions Kaldor Hicks o Transaction is efficient if overall benefit outweighs cost to X s neighbours o Winner can gain enough to compensate loser and leave profit for themselves 5. Thus we have Cost Internalization through Regulation Regulation à internalizes externalities so that they do not bear the loss or the burden (A) This forces players to be more efficient if they are internalizing costs à increase expense of the activity, increase the price of product, demand goes down, supply goes down How Economic Theory effect different areas of Law: Property Rights: Objective is NOT to produce equality, BUT to protect entitlements and their efficient use and transfer o Property Rights created callus and are protected in 3 ways: Property Rules, Liability Rules, Inalienability Coase Theorem: Low transaction costs allow us to maximize free market activity Tort Law: Costs are borne by the wrongdoer/ defendant o Deterrence principle mechanism for evaluating risk 11
o Vicarious Liability à right to fix the cost on the employer because this will create an incentive to decrease the risk and the risk can only be decreased by the employer** Mary M v City of LA à COP raped a woman à City should be held VL à deterrence Contract Law: Creates a framework for efficient exchange; facilitates trust and confidence, thereby encouraging trade especially among strangers o Standards reduce transaction costs Criminal Law: May be understood in economic terms society paying, for protection of interests identified as high value and decreasing crime means spending less, on the system o Criminalization is costly are other more efficient alternatives 12
FEMINIST JURISPRUDENCE Like the critical race theory and critical legal studies, feminist jurisprudence asks us to think about law not in terms of abstract principles like justice fairness, principles, or moralityà instead it is about POWER. 1. Where does law come from, according to Feminist Jurisprudence? Powerà PATRIARCHY A) World as we know it is structured by patriarchy: systematic and systemic domination of women by men B) Patriarchy is bad for women, morally unjustified, and OUGHT to be eliminated 2. How is patriarchy created? Socially constructed à created by humans and can be taken down by humans It appears natural but it is socially created Men have structured in in a ways that allows them to maintain their dominancy Constructs render the inequality of men and women both invisible and legitimate: o Neutrality of Law à fictions o Ideal of the rules of law o Model of judicial reasoning as logical deduction o Separation of law from politics o The separation of law from morality Different sects of Feminism: Liberal Feminism: Classical idea that subordination of women causes blocks to access to success in public spheres, if we remove these blocks there will be equality Modern significance of informal discrimination, the blocks is a bit of a fantasy the reality is that these will not give equal access to most women Radical Feminism: Social construction of gender within the patriarchy It is impossible to understand what female- ness is without pulling the system out by the root Focus on biological reality of being a women BUT we all put on a gender performance Marxist Feminism: Oppression of women is a function of the capitalist system and its de- valuing of the private domestic sphere Type of Radical Feminism Postmodernist feminism Reject universality, Meta theories of essential truths Women should embrace their otherness Reject a single solution à there are many solutions Not an abstract theory about equality Relational feminism The fact that women are embedded in relationship, where they don t act in a free way is NOT a problem Women socialize different than men 13
Katherine MacKinnon à LAW AS THE SITE AND CLOAK OF FORCE Site of force = where the state s power lies, and the mechanism by which the state enforces power; AND at the same time it CLOAKS the force because you cannot see that it is happening Cloak of Force à law making male domination seem invisible and legitimate by adopting the male point of view and articulating it as both natural and right Enforcing power structures over women while pretending that they are applying justice Male point of view incorporated into law: o Norms of judicial restraint o Precedent o Distinction between public and private o Reasonable man The whole system is broken How can women demand actual equality through law? 1) Claim women s concrete reality (unequal pay, demeaned physical characteristics, targeting for rape, using in denigrating entertainment etc ) as a social and political institution 2) Recognize male power over women embodied as individual rights in law o Male power over women are embodied/disguised as individual rights in law o Pornography as freedom of speech à it s not its actually just violence against women o Privacy rights which encourage domestic violence and child abuse o Gender neutrality in child custody which is used to control and harass women à According to Katherine MacKinnon it is impossible to affect real change while continuing to talk about values of objectively and neutrality 14
CRITICAL LEGAL THEORY - DUNCAN KENNEDY Law is about POWER à emanation about society and maintaining and implementing power. 1. What are Critical Legal Studies? Argumentative and full of different points of view à focus is to destroy the argument that law and politics are separate and different 2. What is driving law according to CLT? Critical Legal Theorists are arguing that POLITICS are driving law Not just formal politics like Conservativism and liberalism à but rather ALL politics in all aspects of our lives (work place politics, school politics, etc.) 3. Laws actually PERPETRATE the power structure in the legal system Laws only APPEAR to be doing something about problems Child pornography example: Laws against child pornography only APPEAR to do something about sexual exploitation of children but all they really do is single out the weirdos They plaster the face on the cover of the news paper just to pretend they are doing something about it 4. Judge s Discretion: Judge s are being influenced by their political beliefs If they are more open minded (like in R v RDS) the majority was very open minded, willing to take in all these different views à Duncan Kennedy would say this is liberalism If they are more rigid, old fashioned à conservative (like the dissent in R v RDS) POINTS OF COMPARISON REMEMBER feminism is a branch of critical legal theory They are both saying that law is about POWER à emanation about society and maintaining and implementing power This power is HIDDEN (site and cloak of force Katherine MacKinnon Power is fuelled by POLITICS For feminists this power is PATRIARCHY which is being hidden and some Marxist Feminists say this stemmed from Capitalism For Critical Race Theorists this power is RACE DOMINATION over other races à this stemmed from the Enlightenment period where there was a general impulse to categorize everything 15
CRITICAL RACE THEORY While Feminist Jurisprudence says that the is the ultimate objective and form of power is patriarchy, the Critical Race theorists are saying the ultimate objective and form of power is the domination of one race over another. 1. Race as a Social Construct (this is like when the feminists said that patriarchy is a social construct) Race is non natural, it is a social construct à an invention of the Enlightenment à in the same way that gender came from CAPITALISM RACE came from a general impulse of the enlightenment period to sort everything out into categories and explain everything: category created race then assigned to living human beings Race is a performance (Gender a performance à Judith Butler) 2. Racism and the law in Canada Focus on the experience of African Canadians; history very different from mainstream story (all these ideas that Canada was a haven for American slaves; that Canada never experienced slavery, segregation, that Canada has no history of racism The silence and denial of Canada s actual history has the effect of silencing racial minorities and silencing people who have experienced Canada in a very different way Silencing is oppressive 16