Friday, 12 August 2016

Jurisprudence: key authors in legal theory and political theory (a nutshell)

What do we study when we study law? According to...

Jeremy Bentham  (1748 – 1832)
  • Utilitarianism. Principle of utility or principle of the greatest happiness.
Law as a social fact.

John Austin (1790 – 1859)
  • Law: commands laid down by a sovereign.
  • Two problems: a) commands and sanctions; b) sovereign and persistence.

Hans Kelsen (1881 -  1973)
  • Pure Theory of Law. Law as binding norms, hypothetical norms.

Herbert Lionel Adolphus Hart (1907 – 1992)
  • Rules. Social rules.
The basis of law-making authority lies not in habits of obedience but in the acceptance of a basic rule.
  • Primary rules (conduct) and secondary rules (operations: how to alter rules; how to interpret/enact rules; how to recognize rules).
  • Legal system. Two conditions: 1) officials accept and apply basic rule of recognition; 2) population comply with primary rules.
Efficacy and validity.
  • Judges, law-making power and “discretion”.
  • Language and open-texture.



Do clear, unambiguous propositions of law exist?

Numbers and effect (precedent)

Clear, unambiguous propositions of law as open hypotheticals

An exercise of creative, judicial power

What is deductive justification? (LRLT, p. 19).

Some problems of predictability, rationality and legitimacy

Ronald Myles Dworkin (1931)
·      Problems of interpretation. Propositions of law. “Hard cases”.
·      Criticism of legal positivism.
Positivists cannot recognize fundamental theoretical disagreements over the criteria for the rule of recognition. Legality = social facts + moral facts
·      Theory of constructive interpretation.
There are two criteria for constructive interpretation: fit and moral attractiveness.
Under Hart’s theory, the existence and content of the law can be identified according to the social sources of the law without reference to morality.
Under Dworkin’s interpretative theory every proposition stating what the law is on some issue necessarily involves a moral judgment.
·      Concept of law (a return to the command model)
Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified (p. 93 LE)
·      Best conception of law: conventionalism, pragmatism, or law as integrity.
Law as integrity: integrity denies that statements of law are either the backward-looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism. It combines backward and forward-looking elements.
·      LE Chapter 7: Integrity in law

Neil MacCormick (1941-2009)
·      Hard Cases.
a.    Arguments form consequences.
Extra-systemic and are concerned “with what makes sense in the world” (LRLT, p. 103);
b.    Arguments from coherence.
Intra-systemic and rest on the assumption “that the multitudinous rules of a developed legal system should ‘make sense’ when taken together” (LRLT, p. 152).
c.     Arguments from consistency.
Intra-systemic and embody “a fundamental judicial commandment: Thou shalt not controvert established and binding rules of law” (LRLT, p. 195).

John Finnis (1940)
Natural Law and Natural Rights
Sources and content of natural law.
·      The principles of natural law are:
a)        a set of basic practical principles used by everyone in deciding what to do;
b)        a set of basic methodological requirements of practical reasonableness used to distinguish sound from unsound practical thinking and which provide criteria for distinguishing between actions that are morally right and morally wrong;
c)         a set of general moral standards – (NLNR p. 23).
·      The relationship between positive and natural law:
The purpose of positive law is to supplement natural law by adding compulsion and forcing selfish people to act reasonably.
·      Positive law is legally binding (in the focal moral sense) only if
1)        the law originates in a way that is legally (in the strict legal sense) valid and
2)        the law is not materially unjust either in its content or in the circumstances of its positing
·      There may also be a moral obligation to obey even an unjust law if disobedience will undermine an otherwise moral system
Objective goods (definition; characteristics).
The requirements of practical reasonableness.
Community and the common good. Justice.
Law. (The purpose of law; five formal characteristics + Fuller's 8 procedural desiderata).

Negative liberty and positive liberty[1].
Negative liberty: the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense.
Positive liberty: the possibility of acting — or the fact of acting — in such a way as to take control of one's life and realize one's fundamental purposes.
See Isaiah Berlin “Two concepts of liberty”.

Distributive justice.
It presents a conflict between two competing values:
a)              Liberty or freedom: the less government interference in our lives the better.
b)             Equality: unless there is a good reason to do otherwise, the benefits and burdens of social cooperation should be distributed equally.
Problem: since in most cases the benefits and burdens of social cooperation are not distributed equally, this requires some and sometime government interference in our lives, hence the supposed conflict with liberty.
Ronald Dworkin has an argument that this supposed conflict is illusory—that our interest in liberty is no more than that—an interest, while our interest in equality is in fact a right, and that to the extent we have a right to certain basic liberties, these stem from notions of equality, not liberty.

John Rawls (1921-2002)
A Theory of Justice.
  • The circumstances of justice (limited resources and limited altruism).
  • Rawls’s criticisms of other theories of justice (intuitionism, utilitarianism).
·      Reflective equilibrium.
·      The Contractarian method

·      Principles of justice and fairness.
a.        The first principle is that people are entitled to the most extensive system of basic liberties compatible with a similar system for everyone else;
b.        The second principle is that social and economic inequalities are justified only if
1.                                    (1) they are attached to offices and positions open to all under conditions of fair equality of opportunity, and (2) they benefit the least advantaged (the difference principle).
The first principle has lexical priority over the second. Additionally, the first part of the second principle—the principle of fair equality of opportunity—has lexical priority over the difference principle, meaning you cannot sacrifice fair equality of opportunity for greater social and economic equality.
·      The strains of commitment.
They are the reasons why a party might violate an agreement or urge renegotiation

Nozick (1938-2002)
Anarchy, State, and Utopia.
  • Self-ownership (each person has exclusive rights in himself and no rights in other persons).
  • Rights (Kant’s view that people are ends and not merely means; but while Kant’s theory focuses on duties, Nozick’s focuses on rights).
  • From anarchy to the state; from anarchy to the ultra-minimal state; from the ultra-minimal state to the minimal state.
  • Historical entitlement theory of justice. Three principles:
a)    a principle of transfer: whatever is justly acquired can be freely transferred
b)    a principle of just initial acquisition: an account of how people come initially to own things
c)    a principle of rectification of injustice: how to deal with holdings that were unjustly acquired or transferred.

[1] From Stanford Encyclopedia of Philosophy.

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