ASAP/JN
Conference: Global Justice and Crisis [Manchester, Saturday 6th October,
9:30am-5pm]
An
event jointly organised by Yale's ASAP (Academics Stand Against
Poverty) and Juris North. Please find the provisional programme attached.
We have
representatives of 10+ countries. This conference will bring together academics
(law, political sciences, philosophy, sociology, etc.), non-governmental
organisations and activists to present, explore, and discuss ways in which we
may address worldwide current issues by means of global justice. The aim of the
conference is to provide a forum for debate over some key issues (poverty,
access, dispute resolution and terrorism) ranging between particular case
studies to their global impact, and including analysis of political,
sociological, legal, policy, and everyday conceptualizations. The conference
will provide a forum to analyse developments, and seek to discern underlying
social, legal and political processes to address them
FYI we'll
have BSL (British Sign Language) interpreters .
Provisional Programme
Free event
ticket (please book in advance for this event since there is limited
availability). Select the first choice from the drop down menu:
Herberet Lionel Adolphus Hart—H.L.A. Hart—was born in 1907 and began his career as a barrister, practicing law in London for eight or nine years
He then was a Fellow and Tutor in Philosophy at New College, Oxford from 1945-1952, then University Professor of Jurisprudence at Oxford until 1968, and then Principal of Brasenose College, Oxford until he retired in 1978, although he remained quite active until his death in 1992.
Ronald Dworkin, who we will also read in this course, was a student of Hart’s, and eventually succeeded Hart as Professor of Jurisprudence at Oxford, although Dworkin is now Professor of Jurisprudence at University College London.
The Concept of Law
It was published in 1961 and which is considered a modern classic in legal theory. Just before his death, Hart added a postscript to The Concept of Law to respond to some of the criticisms leveled against the book by Dworkin.
In The Concept of Law, Hart not only addresses the question “what is Law,” he also discusses the role judges play in creating and interpreting the law and examines the connection between law and morality.
The following video introduces The Concept of Law, Persistent Questions, and Austin-Hart key differences.
Persistent questions
Hart begins by noting that there are three persistent questions about the nature of law:
a)First, what is the relationship between law and coercion?
1.the most prominent feature of law in all places and in all times is that it makes certain kinds of human conduct no longer optional, but in some sense obligatory
2.this has led some theorists (notably John Austin) to characterise law as “orders backed by threats,” and Austin’s view has had a great influence on much of the science of jurisprudence
3.Hart concedes that there is some truth to this view, but he considers it overly simplistic, and therefore tells us that one of his tasks will be to examine more precisely the ways in which law and legal obligation differ from and are related to “orders backed by threats”
b)The second persistent question about the nature of law that Hart tells us he plans to examine is the relationship between law and morality
1.law and morality clearly share a certain vocabulary—there are both legal and moral rights, legal and moral duties, and morality also makes certain forms of human conduct no longer optional but in some sense obligatory
2.there is also a great deal of coincidence between the types of conduct that are subject to moral prohibitions and the types of conduct that are subject to legal prohibitions—murder and most other forms of violence, theft, and most instances of breach of promise, for example, are all prohibited by both legal and moral rules in every society
3.this as led some to argue that law is simply a branch of morality called justice
4.yet we are also prepared to criticise law as unjust, and to argue that unjust laws should not be obeyed, so clearly the relationship is more complicated than this—justice is something both inside and outside law, not coextensive with it, it is a standard against which law may be evaluated, and a more precise statement of the relationship between the two needs to be specified
c)And finally, the third persistent question about the nature of law that Hart plans to examine is the nature and status of rules
1.for example, some rules tell us how to behave and other rules tell us what we must do to give effect to our wishes (e.g. how to make a will), and this is a distinction that needs to explored and explained
2.there is also a distinction between rule-obeying behaviour and habitual behavior that needs to be examined and explained
3.and finally, there is the question of what courts are doing when they purport to apply rules
Hart prepares the ground for his own theory of law by examining the failures of an earlier (19th century) theory of law, that of John Austin.
Austin’s theory of law was very simple, perhaps even simplistic. He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and the legal systems are not based on what Austin called sovereigns.
Austin's command model of the law.
Austin (1790-1859) argued that law is simply a set of imperatives or commands or orders issued by a sovereign and backed by threats. Hart concedes this model has been extremely influential on jurisprudence, but he notes that the “gunman analogy” cannot be taken too literally—it must be qualified in a number of ways if it is to capture certain features that are present in our concept of a legal system
a)first, for a legal system to exist, the commands must be general. in two ways
b)second, the commands must also be durable, meaning they have standing force over time.
c)third, it must be generally believed that the threats are likely to be implemented in the event of disobedience.
d)fourth, the law must be generally and habitually obeyed.
e)and finally, the commands must emanate from a source that is not itself subject to and does not itself habitually obey some other source of command.
Hart refines Austin’s statement of the command model. A legal system under Austin's model exists wherever there are general orders backed by threats that are given by a sovereign who is habitually obeyed and habitually obeys no one.
Note, however, that the sovereign referred to in the model need not be a particular individual—the claim is simply that wherever there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as an absolute monarchy, this simple relationship between subjects or citizens rendering habitual obedience and a sovereign person or entity which renders habitual obedience to no one.
Whether a legal system exists under this model is purely a question of fact. In other words, all these various characteristics either exist or not as an empirical matter, and while some of them may be a bit vague, it should be theoretically possible to determine as a matter of fact whether the necessary features are present.
But this is not Hart’s model or concept of law—Hart is merely trying to make the strongest case possible for the command model, and once he does so, show that even this refined version has problems that cannot be corrected merely by making adjustments to the model.
For more details about "Hart vs Austin" refer to the link below: Hart vs Austin Next time Chapters 5 and ff. HLA Hart's The Concept of Law.
The first level we will
refer to is meta-ethics and whether there are rational procedures to justify
the validity of the value judgments, that is, if there is any way to
demonstrate that a justice or moral goodness is true or valid so that
demonstration is, in principle, accessible to any person who was in the right conditions.
In this theoretical level
the kind of meaning that characterises ethical terms such as "right"
"wrong", and others and their opposites and the significance of value
judgments depends on what kind of judgment they are and what expressions are
typically used to formulate them.
There are several theories that have been
proposed about the meaning of ethical terms (such as "good,"
"fair", etc.) and the meaning of statements in the form of value
judgments
(e.g. "it is unfair to punish someone because…").
For the sake of simplicity, these theories may
be broadly classified as follows:
a)Descriptivist theories,
subdivided into
1.Ethical naturalism,
subdivided into
A.Subjectivists.
B.Objectivists.
2. Ethical non-naturalism, subdivided into
A.Subjectivists.
B.Objectivists.
b)Non-Descriptivist theories,
examples of which are
1.Ethical emotivism.
2.Ethical prescriptivism.
c)Other theories.
Descriptivist Theories
These theories hold that value judgments are
descriptive statements of some kind of facts. Consequently, they claim that
such judgments, and ethical terms in them, have cognitive meaning. Therein, it
may be possible to attribute truth or falsity to moral judgments and, in
principle, such judgments can be justified rationally. However, there is no
agreement between descriptivists about what facts relate to moral judgments and
how it determines its truth or falsity. This disagreement leads to the concepts
that we will examine in future posts.
Non-Descriptivist Theories
These theories differ from those previously
introduced in that they maintain that value judgments are characterized by not
being centrally descriptive of certain facts. This is linked with the idea that
ethical terms do not have, or have not exclusively, cognitive meaning: they do
not typically refer to factual properties, whether objective or subjective,
empirical or supra-empirical. The implication of this conception with regard to
moral judgments is that they cannot be true or false. They are not formulated
for the purpose of conveying information about how reality is but for other
purposes, such as to influence the behavior of people. This generates doubts
about the possibility of rationally justifying our value judgments, so the
non-descriptivism is usually followed by skepticism, which may be more or less
extreme, regarding the role of rationality in ethical matters.
In the posts to come we
will be reviewing each of these theories. In the meantime, for more
information:
Introduccion Al Analisis
del Derecho, by Carlos Santiago Nino (1980) Ed.
Astrea.
What are "value judgments"? According to the Oxford
Dictionary “value judgment” means:
“An assessment
of something as good or bad in terms of one’s standards or priorities.”
In very simplistic and
schematic terms we may have:
“X is good” or “X is bad”
“X” being any thing,
person, action, omission, etc. and “good” or “bad” representing positive or
negative assessments.
In life as in
jurisprudence, we all use value judgments. When is a value judgment “correct”?
There are several problems linked to this question.
The first problem is
whether there are rational procedures to justify the validity of the value
judgments, that is, if there is any way to demonstrate that a justice or moral
goodness is true or valid so that demonstration is, in principle, accessible to
any person who was in the right conditions.
The second problem is to
determine whether there are principles of justice and morality that allow
assessing the law and legal institutions, and what are the implications of
these principles in specific areas.
The first problem, that is,
the ability to rationally justify value judgments is the object of study of the
branch of philosophy that has been called meta-ethical or ethical analysis. In
this theoretical level the kind of meaning that characterises ethical terms
such as "right" "wrong", and others and their opposites and
the significance of value judgments depends on what kind of judgment they are
and what expressions are typically used to formulate them.
The second problem is, to
determine the basic principles of justice and morality and their specific consequences
is called normative ethics. These are no attempts to analyse the logical
character of the moral judgments and the meaning of "good" or
"bad" but to formulate and justify (assuming this is possible) moral
judgments and determine what actions or institutions are good or fair.
There is a third level
comprising what is called descriptive or sociological ethics. The character of
the value judgments and meaning of ethical terms is not disputed (as does the
meta-ethics), and value judgments are made, determining what things are fair or
good (as it does normative ethics), but value judgments that are made in a
certain society at a certain time described, realizing what things the members
of that society considered fair or good.
The chart below briefly presents
the different levels:
Next time we will start reviewing
each level in detail. In the meantime, for more information:
Introduccion Al Analisis
del Derecho, by Carlos Santiago Nino (1980) Ed.
Astrea.
