cans.allardlss.comcans.allardlss.com/.../media/cans/Stewart_73_Fall_2019_…  · Web viewBASICS . What is Positivism . Main thesis: existence and content of law depends on social

JURISPRUDENCE CAN – STEWART FALL 2019INTRODUCTION.................................................................................................................................................................................. 1

WHAT IS JURISPRUDENCE................................................................................................................................................................................. 1Basics............................................................................................................................................................................................................................ 1

WHAT IS LAW........................................................................................................................................................................................................... 1What is Law............................................................................................................................................................................................................... 1Three Recurrent Issues......................................................................................................................................................................................... 1Legal Obligations vs Non-legal Obligations................................................................................................................................................ 1What are Rules? (HLAH)...................................................................................................................................................................................... 2What is a Legal System?....................................................................................................................................................................................... 2Why Do We Care About Defining Law?......................................................................................................................................................... 2

LEGAL POSITIVISM............................................................................................................................................................................. 3

BASICS.......................................................................................................................................................................................................................... 3What is Positivism.................................................................................................................................................................................................. 3(Hart’s) Central Tenets of Positivism............................................................................................................................................................. 3

BENTHAM AND AUSTIN’S POSITIVISM........................................................................................................................................................ 3Bentham’s Critique of Rights............................................................................................................................................................................. 3Critique of Natural Law....................................................................................................................................................................................... 4Command Theory.................................................................................................................................................................................................... 4

HART’S POSITIVISM............................................................................................................................................................................................... 4Basics............................................................................................................................................................................................................................ 4Primary and Secondary Rules........................................................................................................................................................................... 4Core of Settled Meaning....................................................................................................................................................................................... 5Internal Aspect of Rules and Law.................................................................................................................................................................... 5

KELSEN’S POSITIVISM.......................................................................................................................................................................................... 5Non-Reductive Account of Law......................................................................................................................................................................... 5The Grundnorm & Normativity......................................................................................................................................................................... 6Reduction and Legal Theory.............................................................................................................................................................................. 6

SCHOLAR COMPARISONS.................................................................................................................................................................................... 6Hart v Kelsen............................................................................................................................................................................................................. 6Hart v Austin/Bentham........................................................................................................................................................................................ 7

NATURAL LAW.................................................................................................................................................................................... 8

HISTORY & BASICS................................................................................................................................................................................................. 8Basic Principles........................................................................................................................................................................................................ 8History......................................................................................................................................................................................................................... 8Main Proponents..................................................................................................................................................................................................... 8

MAIN TENETS........................................................................................................................................................................................................... 9What is Nature......................................................................................................................................................................................................... 9Finnis’s Basic Goods............................................................................................................................................................................................... 9

SHORTCOMINGS & UPSIDES.............................................................................................................................................................................. 9Shortcomings............................................................................................................................................................................................................ 9Upsides...................................................................................................................................................................................................................... 10

COMPARISON WITH POSITIVISM.................................................................................................................................................................10

DWORKIN & INTERPRETIVISM................................................................................................................................................... 11

BASIC TENETS....................................................................................................................................................................................................... 11No Discretion.......................................................................................................................................................................................................... 11Right Answer Thesis............................................................................................................................................................................................ 11The Seamless Web................................................................................................................................................................................................ 11Principles and Policies........................................................................................................................................................................................ 11

Riggs v Palmer, 1889..................................................................................................................................................................................................................................................................12

The Donut................................................................................................................................................................................................................ 12Constructive Interpretation............................................................................................................................................................................. 12Chain Novel Metaphor....................................................................................................................................................................................... 12

AI AS DWORKIN’S HERCULES.........................................................................................................................................................................13Hercules.................................................................................................................................................................................................................... 13Advances in AI........................................................................................................................................................................................................ 13Potential Issues with AI Judges....................................................................................................................................................................... 13

DWORKIN VS HART............................................................................................................................................................................................ 13Difference in Approaches.................................................................................................................................................................................. 13Discretion................................................................................................................................................................................................................. 13

SPELUNCEAN EXPLORERS............................................................................................................................................................. 14

CORE FACTS............................................................................................................................................................................................................ 14Facts........................................................................................................................................................................................................................... 14Significance............................................................................................................................................................................................................. 14

TRUEPENNY CJ...................................................................................................................................................................................................... 14POSITIVIST.............................................................................................................................................................................................................. 14

FOSTER J................................................................................................................................................................................................................... 14NATURAL LAW/PURPOSIVE APPROACH.................................................................................................................................................. 14

TATTING J................................................................................................................................................................................................................ 15UNDECIDED............................................................................................................................................................................................................ 15

KEEN J........................................................................................................................................................................................................................ 15FORMALIST/LEGISLATIVE SUPREMACIST – Guilty.............................................................................................................................. 15

HANDY J.................................................................................................................................................................................................................... 15LEGAL REALIST/PRAGMATIST – Not Guilty............................................................................................................................................ 15

VERDICT................................................................................................................................................................................................................... 15

THEORIES OF JUSTICE.................................................................................................................................................................... 16

DISTRIBUTIVE JUSTICE..................................................................................................................................................................................... 16What is Distributive Justice.............................................................................................................................................................................. 16Necessity of Distributive Justice..................................................................................................................................................................... 16

RAWLS’S LIBERAL THEORY OF JUSTICE...................................................................................................................................................17Liberalism................................................................................................................................................................................................................ 17Original Position & Veil of Ignorance.......................................................................................................................................................... 17Two Basic Principles........................................................................................................................................................................................... 17Justice........................................................................................................................................................................................................................ 17

LEGAL REALISM................................................................................................................................................................................ 18

SKEPTICISM............................................................................................................................................................................................................ 18KEY TENETS OF ALR........................................................................................................................................................................................... 18

Pushback Against Formalism.......................................................................................................................................................................... 18Indeterminacy & Class of Legal Reasons.................................................................................................................................................... 18ALR Approach........................................................................................................................................................................................................ 19Bad Man................................................................................................................................................................................................................... 19Fact Skeptics & Rule Skeptics.......................................................................................................................................................................... 19

RELATIONSHIP WITH OTHER THEORIES.................................................................................................................................................19Legal Realism vs Philosophical Pragmatism............................................................................................................................................ 19Legal Realism vs Dworkin’s Interpretivism............................................................................................................................................... 20Legal Realism vs Positivism............................................................................................................................................................................. 20Legal Realism vs CLS, Feminism, and Law and Economics................................................................................................................ 20

CRITICAL LEGAL STUDIES............................................................................................................................................................. 21

ORIGINS.................................................................................................................................................................................................................... 21Origins in ALR........................................................................................................................................................................................................ 21Influences................................................................................................................................................................................................................. 21

KEY TENETS........................................................................................................................................................................................................... 21Law, Politics, & Dominance.............................................................................................................................................................................. 21Indeterminacy of Legal Doctrine................................................................................................................................................................... 21Pacification & Paralysis..................................................................................................................................................................................... 22Criticism of CLS..................................................................................................................................................................................................... 22

FEMINIST JURISPRUDENCE.......................................................................................................................................................... 23

BACKGROUND FACTS ABOUT GENDER EQUALITY..............................................................................................................................23SCHOOLS OF FEMINIST JURISPRUDENCE................................................................................................................................................23

Liberal Feminism.................................................................................................................................................................................................. 23Cultural Feminism............................................................................................................................................................................................... 23Radical Feminism................................................................................................................................................................................................. 24Post-Modern Feminism...................................................................................................................................................................................... 24

FEMINIST METHODOLOGIES..........................................................................................................................................................................24KEY FEMINIST TERMS/PHRASES.................................................................................................................................................................24

Consciousness Raising........................................................................................................................................................................................ 24Intersectionality.................................................................................................................................................................................................... 25The Personal is Political.................................................................................................................................................................................... 25The Tyranny of Objectivity............................................................................................................................................................................... 25

RELATIONSHIP WITH OTHER THEORIES.................................................................................................................................................25Rule of Law.............................................................................................................................................................................................................. 25ALR and CLS............................................................................................................................................................................................................ 26

MARTHA NUSSBAUM & EMOTIONS............................................................................................................................................................ 26General Concepts.................................................................................................................................................................................................. 26Aristotle and MLK on Anger............................................................................................................................................................................ 26Rationality vs Emotion....................................................................................................................................................................................... 26

GLOBAL JUSTICE............................................................................................................................................................................... 27

STATE OF GLOBAL INJUSTICE TODAY.......................................................................................................................................................27Sad Facts.................................................................................................................................................................................................................. 27Learned Helplessness.......................................................................................................................................................................................... 27

ROLE OF THE STATE.......................................................................................................................................................................................... 28Sovereignty & Role of the State...................................................................................................................................................................... 28Thomas Nagel’s Statist View........................................................................................................................................................................... 28Peter Singer and the Drowning Child.......................................................................................................................................................... 29Thomas Pogge’s Cosmopolitan Response.................................................................................................................................................. 29

WORLD GOVERNMENT..................................................................................................................................................................................... 29World Government as a Basis for Delivering Global Justice.............................................................................................................. 29

AMARTYA SEN’S FINDING INJUSTICE........................................................................................................................................................ 30SUNDHYA PAHUJA’S CRITICAL APPROACH.............................................................................................................................................30

INTRODUCTION

WHAT IS JURISPRUDENCEBasics Jurisprudence is about understanding how legal systems interact, co-exist, and differ About the study of general theoretical Qs re: laws and legal systems & relationship of law to justice and morality Uses philosophical and sociological theories and applies to the law and these questions Questions jurisprudence asks:

o What is a lawo What is a legal systemo Relationship of law to justice and morality (often tension btwn the two)o Is the law fairo What impact does the law haveo What is my role in the law

WHAT IS LAW What is Law For some types of law it is easy to see they have similar elements, but hard fringe cases – is international law “law”:

weak enforcement, no centralized system, imposed by agreement Two main schools of thought on what is law

o It is something that naturally exists in societyo It is something that is created by society

Hard to define “law” – one of the “you know it when you see it” type things (HLAH)o Sometimes can define things per genus et differentiam (by genus and then by different characteristics that

identify it among other things in the genus) – but there are two issues:i. The genus that law would fall into is vague and confused, so not of much helpii. Not all laws have common characteristics to be the “differentiam” – international law, primitive law,

statute law have some similarities but some also lack key elements

Three Recurrent Issues 1. How does law differ from and how is it related to orders backed by threats?2. How does legal obligation differ from and how is it related to moral obligation? 3. What are rules and to what extent is law an affair of rules?

Legal Obligations vs Non-legal Obligations HLAH prominent feature of law (and all legal systems) is that its existence means certain kinds of conduct are

obligatory and no longer optional LAW CREATES OBLIGATIONSo But this is an overinclusive definition – law is not the only thing that creates obligations; you cannot

determine if something is law just from the fact that it creates an obligation o We need to look further than just finding obligations to determine what is a law

Law must distinguish itself from a number of obligations - need criteria to distinguish (hard part)o Social obligations

Just because ppl tend to do things doesn’t mean there is legal force behind ito Coercion obligations (gun to head)

HLAH – one of the recurrent issues is how to distinguish law from orders backed by threats (Austin would say there is no distinguishing but that is incorrect)

o Moral obligations Moral and legal obligation often use same language and are linked Tempting to view law as a branch of morality/justice essence of law is morality = natural law BUT

this leaves insufficient room for differences btwn moral and legal rules – what happens (even if rarely) when the law does not accord with morals?

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Power creates obligations but power does not always intersect with what is law either Need a standard for differentiating legal obligations from non-legal obligations

o If the standard is a “law” then we are defining law circularly o But if the standard is our “feelings” and compulsions, that invites subjectivity at the precise moment we are

looking for an objective determination btwn legal and non-legal obligations Do we just adopt the fiction of rules and this is why we follow them? Internal push to follow but no

actual external element of the “rule” that causes us to do so? (HLAH) “All that there is, over and above the clear ascertainable facts of group behaviour and predictable

reaction to deviation, are our own powerful feelings of compulsion to behave in accordance with the rule and to act against those who do not. “

What are Rules? (HLAH) Many types of rules – social rules, procedural rules, prohibition/punishment rules Legal rules include prohibitions as well as rules dictating what must be done to get a desired result (like sports)

o Even focusing on 1 type there is still divergence among scholars about what makes a rule exist What do you need for a rule to exist?

o Convergence in behavior – necessary but not sufficient (ppl can converge w/ no rule)o Deviations met by hostile reactions or, if legal rules, punishment by officials

Predictability of punishment is one of most important aspects of legal rules for the ppl subject to them, but not all ppl see them that way a judge punishes someone BECAUSE of the existence of the rule, does not look upon it as a predictive statement of punishment

Rules are seen by some as predictive tool and by others as a guide/justification o Difficulty in determining whether there is another element to encompass these diff views

What is a Legal System? HLAH - Can probably identify salient features of all legal systems

o Rules forbidding or enjoining some behaviours under penalty o Rules requiring compensation to those ppl injured in certain ways o Rules specifying what must be done to make wills, contracts, or other arrangements that confer rights and

create obligations o Courts to determine what the rules are and to fix punishment and compensation when breachedo Legislature to make new rules and abolish old ones

However, is difficult in borderline cases like international legal system – missing courts, legislature, binding?? “laws of various sorts that go together” – one of the properties of law is existence in relation to other laws

within a system – HLAH always need context, cannot have a law in isolation Are legal systems even really made up of rules? OR are judges simply choosing interpretation of the “rules”

they want such that they are not really set, no real defined rules positivism, ALR, CLS all have differing views on this – is there any core of settled meaning? (HLAH)o In light of all the possible interpretation of rules, is it a mistake to think of a legal system as a group of rules?

Why Do We Care About Defining Law? At the exact moment where a breakdown in an interaction occurs/when you need to know whether to comport with

law that is when you NEED to know whether are obligatory, clear, known rules that govern the parties and the dispute – certainty, clarity, objectivity are key

Core component of society to have non-arbitrary determinable rules (vs totalitarian) Natural Law Dilemma – how do we know what law to follow in situations where what is carved in stone and has the

formal features of a law is a tool for grotesque (moral) injustice – Nazis o Opinion on what is a law will determine whether are valid laws (positivism vs natural law)

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LEGAL POSITIVISM

BASICS What is Positivism Main thesis: existence and content of law depends on social facts, no on its merits

o Social facts – phenomena in society that change something from a proposition into law (these are basically procedurally rules that determine when something becomes a law)

o social institutions determine whether something is law o can be factually determined whether law has been made by determining whether a social institution has

carried out its function to do so o laws are only created a social fact – if you adhere to what the social requirements are to create a law, you have

created one – that is all you need Positivists only care about describing what a law is, they do not care about the merit or demerit – the

relationship btwn law and “justice” is not part of the positivist pursuit o No concern about what the law SHOULD BE based on moral/ethical/other standards o Question is limited to whether the proposition has followed the procedural requirements to become a law o “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one

enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (Austin) Proper description of law is worthy objective, entirely separate from moral judgments

o DESCRIPTIVE THEORY – about “what is the law” not “what should the law be”o Separability thesis – three levels: whether legal status of rule can be separated from moral content; whether

legal status of system can be separated; role of moral standards in construction of a theory of law Positivists see a legal system as totally dependent on the structure of gov’t, not dependent on ideals of justice,

democracy, or ROL o Nothing floating in the ether that is inherent to the legal system – all depends on the gov’t, social institutions,

procedural requirements, and social factso A legal system is based on the structures created in these rules o Moral judgment is not a relevant consideration – you follow the law not because it is moral, but because it has

become a law through social facts Positivists can be concerned about morality, fairness, and justice – but that is not a basis to deny that a law is a law

if have issue with a law on that basis, need to exercise social institutions to change it

(Hart’s) Central Tenets of Positivism1. Laws are the commands of human beings2. There is no necessary connection between laws and morals3. The analysis of legal concepts is (i) Worth pursuing; and (ii) Distinct from sociological and historical inquires

o Law is its own thing separate from sociological and historical inquiries ABOUT law 4. A legal system is a “closed logical system” [separate from culture, identity, history, morality] in which correct

decisions can be deduced from pre-determined legal rules by logical means alone o Can be informed by these elements BEFORE to determine the procedure which determines what is law, not

after law has already been created o Legitimacy of a law comes from the insulation so ppl cannot question whether it exists and what content it

has 5. Moral judgements cannot be established, as statements of facts can, by rational argument, evidence, or proof

o Positivism is desirable b/c we cannot agree on higher moral judgments but society can agree on whether social facts have been established and thus agree what is law (even if we don’t agree on whether the law is good or not)

BENTHAM AND AUSTIN’S POSITIVISM Bentham’s Critique of Rights "simple nonsense, natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts"

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Rights are granted by a legislature or law-making body conferring them upon you – “real rights” arise from “real law” but rights that come from laws of nature/morality are imaginary

Critique of Natural Law Historically, it was thought that justice depended on morality (which came from God/higher power) Bentham thought this was dangerous b/c law is too uncertain when ppl cannot agree on higher moral norms and

there is no objective means of preferencing one person’s opinion on what the law is o This results in everyone following their own moral codeo Also means gov’t can commit to a different set of norms on a whim and cancel Constitution

Need a more objective way of determining what laws are binding on ppl Positivism is in conflict w/ natural law b/c natural law says whether something is “law” depends on the content

being consistent with higher norms

Command Theory Bentham and Austin both saw sovereign as essential to the law – sovereign was source of legal authority, rather

than nature or God Legal systems = patterns of command and obedience w/out recourse to morality Law is a matter of commands (orders backed by threats) by a sovereign (obeyed by others, obeys nobody) Doesn’t distinguish btwn power from institutions and rules that are accepted by community (no difference btwn

coercive obligations and legal obligations)

HART’S POSITIVISM Basics Moved positivism away from empirical approach – more social sciences approach where you need to

understand both the actions in the system as well as effect on participants in the system (internal) Lots of criticism to command theory – no gov’ts these day have a true sovereign, that doesn’t allow for easy

explanation of continuity of law, that is too narrow of a view Multiplicity of law rules impose duties, confer powers, apply both directly to citizens and the operation of the

rule-making system itself (primary and secondary rules) Rules have a core of settled meaning (most of the time mean something) and penumbra of doubt Hart accepts that there are always some basic natural law elements present (ie “thou shalt not kill”) but that a

legal system can decide if part of criteria for law (ROR) involves moral judgment or not called inclusive legal positivism

Primary and Secondary Rules Two necessary and sufficient conditions for the existence of a legal system:

i. Valid rules of the system that are generally obeyed (primary rules)ii. Criteria set forth in a system’s rule of recognition (secondary rule) are effectively accepted as common public

standards of official behavior by officials Hart believes law is broader than commands (refutes command theory) – there are BOTH primary rules

(commands) and secondary rules (rules that dictate that primary rules are law = procedural) The most important secondary rule is the RULE OF RECOGNITION law (set of criteria) about what constitutes

a law and when it should be recognized as law o This is a symbol of the main tenet of legal positivism whether a rule is a law depends ONLY on application

of a set of conventional criteria, not on any moral evaluation o Different in each legal system o A sovereign making commands is too simplistic for a legal system today – a legal system today has courts,

procedure for voting in laws (these are secondary rules)

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Core of Settled Meaning Hart sees rules as having a “core of settled meaning” and a “penumbra of doubt” words on a page DO have

meaning most of the time, but in some (rare) propositions there is a penumbra of doubt where judges/citizens have some discretion to make decisionso Hart is unconcerned with justifying or explaining the limited judicial discretion that exists – it exists as a

matter of sociological fact Judges can have weak discretion interpretive role in determining whether a specific situation fits

into a regulated area (is a skateboard a “vehicle” in the park) Judges can also have strong discretion where there is a gap in the law and so law is entirely silent

on a topico Just because there is some discretion in penumbra doesn’t destroy positivism b/c most of the time there is

not discretion Penumbra of doubt AKA being “open texture” – when law doesn’t cover unusual factual situations Positivism requires words on a page to mean something to allow the closed logical system, to allow everyone

to know objectively what the law is, and for law to be bindingo Words on a page (mostly) withstand politics, culture, morals, and prejudice

WORDS MEAN SOMETHING MOST OF THE TIME For law to be an objective fact, language must be able to mean something and not just bend to what you “want” it

to say based on politics, morality, prejudice, emotion (that would be natural law) Thus for this theory to hold, interpretation of law must be limited – if you can interpret laws to get any result, they

certainly do not have a core of settled meaning This is a key difference from ALR (rules are of little importance, but some), CLS (rules are of no importance), and

natural law (rules have little purpose b/c ultimate goal is to comply w/ moral code)

Internal Aspect of Rules and Law Law created by humans for humans – understanding it requires a different approach than physical sciences, you

need to consider how ppl who created and participate in it perceive it Some ppl comply with the law because it is the law, not because of a threat of consequences – internal aspect of law

that speaks to our feelings and desires to comply Can only understand rule following behavior by understanding perspectives

o Difference btwn feeling obliged (fear consequences) and feeling obligated (feel you have to act that way, not merely due to fear of consequences) – need to consider both

o Habits vs rules – how ppl act is the same, what differentiates is why they are acting that way Requires a balance btwn accepting the perspective of participant but remaining outside the system enough to

objectively evaluate it accept a normative position without endorsing it

KELSEN’S POSITIVISM

Non-Reductive Account of Law Kelsen sought to explain law without reducing “legal science” to any other domains focus on a hermetically

sealed discipline Wanted to understand “what is law” without reducing it to anything else like morality, justice, politics, religion,

preferences, culture, etc isolate law completely Book title is “A Pure Theory of Law” purely descriptive of law and attempts to eliminate everything else that is

not strictly law o Important to be pure b/c law might try to masquerade as something else if law is not “something” by itself,

then it is claiming to be objective but actually is vulnerable to criticism Kelsen did not want sociological perspective of law or looking at actual practice like Hart Abstract logical analysis of law and normative thinking

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The Grundnorm & Normativity Normative means “you ought to” – so normative theory observes how societies attach normative meaning to certain

actions (ie ppl raising hands in Parliament) and asks why certain acts and events create legal meaning/obligations and others do not

Kelsen says an act or event gains its legal-normative meaning by virtue of another legal norm that authorizes its creation in that way

based on that theory, each act or event gains meaning by virtue of something “higher” than it – but this necessarily means there must be something at the very apex that shines normativity down the entire system (if there was no such thing, would have no normative obligations) o CALLED THE GRUNDNORMo Grundnorm must be legitimate – be the appropriate legal authority o Everything is in a pyramid shape – act, regulation, statute, constitution, int’l law, grundnorm

Grundnorm = grounds non-reductive explanation of law, inescapable if there is to be any normativity in the world, and helps explain the systematic nature of law by allowing branches of normativity

Bottom up approach – start with the norms at the bottom and move up to find grundnorm at the topo Note this is opposite of natural law which starts with the highest value and moves down to determine which

laws align

Reduction and Legal Theory Kelsen believes all norms can be understood in terms of authorization to impose sanctions If A (citizen) does X (bad action) then B (official) is authorized to impose Y (sanction) This is a very extreme reduction and it doesn’t fit that well with non-criminal laws

SCHOLAR COMPARISONS Hart v Kelsen

1. Both consider how to distinguish btwn valid law and law created by gangsters o Hart explain in terms of internal aspects of law – how do the ppl in the system feel are they feeling obliged

or obligatedo Kelsen would explain that it depends on the basic norm dealing with who can officially promulgate the law – if

the norm allows, it is valid; if norm doesn’t allow, they are gangsterso BOTH are comparable b/c the difference depends on the attitudes of citizens (note that they do not consider,

like natural lawyer would, whether gangsters are “good” and thus shouldn’t rule)2. Both emphasize the normative aspect of the law

o Kelsen that is kind of the whole thing But he also doesn’t reduce it as much as Hart does (Hart reduces to social facts)

o Hart cares about normative aspect wrt the internal aspects of law, but also theorizes about other aspects of law like primary vs secondary rules, open texture, etc

3. Both have descriptive rather than evaluative theories o But Hart’s theory is more of an analytical description of actual practices o Kelsen has a theory purified of everything – “neo-Kantian transcendental deduction from the fact that we

treat certain rules as legal norms.”4. Hart’s ROR and Kelsen’s grundnorm

o both rest on the idea of chains of normative validity – norms are valid only to the extent they have been authorized by another norm and this validity ends somewhere – ROR or grundnorm

Hart says the ROR is “accepted” and Kelsen says grundnorm is “presupposed”o Kelsen sees it as a chain of normativity up to the grundnorm, chain is what matters to make something a legal

obligation o Hart cares more about the sociological reactions of ppl in the system and if we accept the ROR then we accept

a certain thing is legally bindingo Both see legal systems as systematically coming from one ROR or one grundnorm and fitting within that

hierarchy – but feasibly there could be more than one ROR or grundnorm if you do not think the legal systems are necessarily systematic and all fit under one of them as nicely

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Hart v Austin/Bentham 1. Primary and secondary rules as a refutation of command theory

law is broader than commands, it also includes law that dictates what rules are law2. Rule of recognition as denial of role of sovereignty

Sovereign just making commands is too simplistic -- a legal system actually has laws defining what laws are!

3. Internal aspect of law as a rejection of reliance on sanctions/punishment by sovereign Austin says law is whatever the sovereign commands and that they are prepared to back up with some

consequences Hart says this misses the fact that some ppl comply with the law because it is the law, not due to these

consequences Internal aspect of law speaks to this feeling and our desires to be compliant with law, not just about the

sovereign aspect

Maybe add stuff on Joseph Raz

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NATURAL LAW

HISTORY & BASICSBasic Principles Main idea is that there is some “higher law” (whether literal bible etc or metaphorically collection of public morals)

against which we can judge laws and legal system on moral grounds One of the main issues is the response citizens should have when the positive law conflicts with higher law Natural law requires close connection btwn human nature and law a law must be consistent with human nature Natural law is mathematically crafted for human and social realities legal code consistent with higher values (ie

commitment to life) that accords with these realities

History Best known ancient formulation is from Roman orator Cicero

o “True law is right reason in agreement with nature; it summons to duty by its commands, and averts from wrongdoing by it prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment.’”

Nature dictates certain things – like life is precious – and our law is reasoned conclusions from what nature dictates

Higher principles cannot be changed because they are born of nature; consistent No way a legislature can free you from commitment to higher norms b/c they exist separately from any

legislature or gov’t Natural law is accessible through our own rationality we all have rationality that allows us to access

the universal moral code interpret it for ourselves Universal law all around the world and for all time b/c these key norms transcend culture

o Key themes of traditional natural law are present here Natural law is unchanging over time and in diff societies Every person can access standards of higher law just by using reason Only just laws really deserve the name “law” – must be just and true to get that title

After this, came early Church writers source of higher standards now comes from a divine being who lays down commands for mankind rather than just inhering in the nature of things

Early law theorists mostly focused on what citizens, legislators, and gov’ts could or should do, not really considering more abstract questions like “what is law” like modern theorists

Main Proponents Traditional approach = St Thomas Aquinas

o Identified natural law and positive/human law; positive law is derived from natural law either directly (shall not murder) or with some room for choice (regulate cars on road in some way)

o Positive laws are binding if they are JUST - three criteria for law to accord w/ natural lawi. Ordered to the common goodii. Law giver has not exceeded authority iii. Law’s burdens are imposed on citizens fairly

o If a law is unjust, there is no obligation on citizens to obey it – it is not a law in the fullest sense However, there are suggestions Aquinas thought might obey if is a generally just legal system and not

obeying would throw the system into questiono Aquinas argued nature was what is consistent w/ ppl as reasonable creatures

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Medieval = Francisco Suarez o Breaks with Aquinas on 2 points

i. Emphasizes that moral standards are the “will” of the lawmaker = God, rather than from the reasoning of the ppl

ii. The “nature” part of natural law was knowledge of the good derived from knowledge of human nature Modern = John Finnis

o Basic questions are “how should one live” and “how can we discover the answer to such ethical questions as that” legal theory is a small part of these questions

o Core rationale of natural law theory is to establish what is really good for persons Paternalistic aspect as well as majoritarian process Top-down approach presumes you know what is good for everyone! Not necessarily true

o Believes there are seven basic goods: life (health), knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and religion

While you may morally prioritize some, you can never act against a basic good o Agrees with Aquinas that ppl have obligation to obey just laws, unjust laws are not full laws and you only have

to obey them to the extent it upholds otherwise just systems/institutions

MAIN TENETS What is Nature Three options for what nature is in natural law

o Standards are natural because they derive from human nature (our essence as humans) Suarez

o Standards are natural because they are accessible through the application of natural faculties such as reason Aquinas; Finnis

o Standards are natural because they derive from nature. They find expression in the natural world and can be observed as such.

??

Finnis’s Basic Goods These are the things that laws must be consistent with in order to be just and considered true laws Self-evident ie, the opposite of provable Law enters as a way of effecting the goods Life, knowledge, play, aesthetic experience, sociability, practical reasonableness, religion

o Not everyone agrees on what belongs here – contested!! One of key issues with natural law Practical reasonableness is not only a good but also a means of interpreting the others

o How to pursue the goods, develop a life plan, avoiding arbitrary preferences, being open minded, showing respect for all the basic values, acknowledging the common good and consequences of your actions, and following one’s own conscience

o These are all needed to go from highly abstract values/norms to a functioning legal system NECESSARY to have a rational way to synthesize these core values together to get a “just law”

SHORTCOMINGS & UPSIDES

Shortcomings No consistency with what the higher principles are and ppl can disagree – not readily discernable Overly abstract basic norms that do not easily give link to precise laws Insensitive to change if the basic norms are unchanging all time, this seems inconsistent with the practical fact

that our laws have changed over time (ie slavery) Inaccessible abstract principles are such that they can fail to deal with differences of opinion or conflicting values

in certain specific cases (abortion) Inappropriately universal without allowing for cultural variance – assimilation, does not allow for legal pluralism or

existence of different legal systems

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Upsides Higher law allows us to have some concept of justice the law is supporting Normative content to law having a normative core of what you should do allows us to scrutinize the laws to

ensure they support justice Places limits on law – moral, rational, just – so we can ensure the ppl who create law do not go too far and you do

not have to follow an unjust law that violates conscience

COMPARISON WITH POSITIVISM Finnis’s theory is most prescriptive (how you should live our lives) while positivism is descriptive

o But Finnis has to assume some descriptive things that are similar to positivism must understand what “law” is before asking what implications morality has upon it

Like Hart, Finnis thinks must use an internal point of view in analyzing legal system o But makes an amendment: thinks you should take the perspective of those who accept the law as binding

b/c they believe that valid legal rules create moral obligations – not just those who accept the law as valid for any reason

o This brings in morality where positivists try to avoid doing so o Finnis evaluates the moral merits of the legal system as a key part of a proper description and analysis

– Hart does not go into morals or merits Like Raz, Finnis thinks understanding of legal systems should center on fact that law affects our REASON for our

actionso But Raz’s central idea is that law purports to create moral reasons for actiono Finnis’s central idea is that under certain conditions, law DOES create moral reasons for action

Key differenceso Natural law theory assets a morally neutral theory of law is not possible (or not valuable)

Natural law theory sees law as a reason for action (adding to our existing moral reasons for action) so on that basis, says law CANNOT be understood except in the context of evaluating on basis of morality – makes sense that cannot be morally neutral

Legal positivism focuses on law as type of social institution which seems reasonable to have a morally neutral approach in that sense

o Natural law theory focuses on how, whether, and when positive law adds to our set of moral obligations (which it only does when it is consistent with them and a party with authority enacts them) – positivism expressly tries to avoid answering that question

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DWORKIN & INTERPRETIVISM

BASIC TENETS

No Discretion Dworkin rejects the model of judicial decision-making as involving discretion

o Judges are constrained in their decision making even within ambiguity or the penumbra of doubt any “gaps” in law are just shifts from rules/laws to principles and policies

o Judges do not get to simply decide or make up what they want to happen because even if there is no specific law governing them, there are principles and policies guiding them

since judges are, in fact, constrained in making their decisions, NO SUCH THING AS DISCRETION Discretion is not normatively acceptable for two reasons

i. Separation of powers and appointment of judges Because judges are unelected, cannot provide them with free reign Decision in a legal vacuum could give a result perverse to the legal system and contrary to

other heads of powerii. Retrospectivity and the rule of law

Arbitrariness, which is inherent if you say the law has multiple possible valid interpretations, is not good for ROL

Making a decision in a legal vacuum means you can be punished retrospectively for something that was not law at the time you committed offence – if the law was just “created” by the judge at the time your case was heard

Right Answer Thesis at the core of Dworkin’s ideas is the theory that there is always a “right answer” to cases may be difficult to find,

but does not mean legal system shouldn’t strive to find it o judges cannot just choose an answer, they are always aiming for this “right answer” o finding the right answer requires looking deeper than words on a page (principles and policies)

This reflects our practice judges and lawyers discuss, argue, and decide cases as if there were one right answer Also had the idea that there must be a right answer because judges must come up with an answer, and necessarily

there is a hierarchy for which answer is better Dworkin sees the right answer as the interpretation that “best explains and justifies” the legal system

explanatory value as well as a normative justificatory value for the legal system as a whole

The Seamless Web Key phrase for Dworkin as he sees the law as a seamless web with no holes No holes because any places without law are still filled with principles and policies Holes would allow discretion, but synthesizing principles and policies with the law eliminates this

Principles and Policies Principles and policies underly the laws in a legal system; embedded in legal system generally Where there is a gap/doubt/uncertainty in the law, judges make decisions on the basis of these principles and

policies gleaned from the legal system as a whole Principles are moral propositions that are stated or implied by past official acts (statutes, judicial decisions,

constitutions) they can apply to cases w/out being dispositive, they have weighto ie “no man shall profit from his own wrong” o Note that these are not the natural law “higher laws” – they must be implied/stated by the existing

positive law in the legal system Policies are “goals to be reached, generally an improvement in some economic, political, or social feature of the

community” Principles/policies animate judicial decision making where there are gaps (Riggs v Palmer)

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Riggs v Palmer, 1889 F: Francis Riggs in his will granted interest to grandson Elmer Palmer if Riggs died before Elmer turned 18 | At 16, Elmer killed Riggs to secure the property in the will | no statutory rule in legislation preventing recovery by Elmer (gap in the law)Dworkin Analysis: Elmer does not get the money due to the principle embedded in the legal system that one should not profit from their own wrongdoing | judge is not utilizing discretion, the legal system is already pursuing such a principle in the rules it has | synthesizing rules and policies eliminates any discretion or loopholes such as this

The Donut A donut is an analogy to Dworkin’s theory of the law Donut = the law Donut hole = judicial discretion

o Key point is that the donut hole is PART OF THE DONUT There is no hole w/out the rest of the donut discretion is a product of the law The hole is embedded within the donut discretion is internal and embedded in the law The size of donut determines the size of the hole discretion is limited by the law “Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of

restriction”

Constructive Interpretation Law and legal theory can be understood as process of constructive interpretation interpretation where the goal is

to be “the best it can be” Can be seen as analogous to statistical methods analyzing points on a graph and determining what

mathematical equation best explains the correlation btwn the data Must be able to assign a value or purpose to the object of interpretation so you can use that as a criteria to

determine which interpretation of the object is “worse” or “better”o Dworkin says the purpose of law is to constrain or justify the exercise of gov’t power

Past action of officials is data to be constructively interpreted wrt two considerations: fit and moral valueo For some legal questions, only one theory of law will have “fit” so that is the right answero Where multiple theories have adequate fit, you compare them on the degree of fit as well as moral value

Whether you prioritize fit or moral value will depend on interpretation itself and can vary depending on the area of law (ie human rights = morals, contracts = protecting expectations and consistency so fit)

The outcome of the right result of fit and moral value is INTEGRITY – a decision on a case that makes the law more coherent, more the product of a single vision

Skeptics who say there is no truth in interpretation are themselves making an interpretation so they are contradicting themselves interpretive skepticism is internally incoherent

The interpretation of some object is the reading of that which best acquits the responsibility of interpreters given by the best interpretation of the practice they have joined – responsibility interpretation (youtube video)

Chain Novel Metaphor Dworkin has a metaphor of a chain novel with each chapter written by a different author to describe how

subsequent cases are CONSTRAINED by earlier ones The idea is that each author is constrained by the work of the earlier ones to ensure flow and continuity in the novel

o This is the “judge model” idea that judges make decisions based on trying to synthesize previous cases and have their decision consistent with previous cases to get the “right answer”

o Whenever a judge has a legal problem, they construct a theory of what the law is that adequately fits “relevant past governmental actions…while making the law the best it can be”

o There is a chain connecting all the cases going back and forward in time Stanley Fish, an author, directly disagrees with it he says that the next author INTERPRETS the previous

chapters in a way that accords with what he wants his chapter to be about o This is the “lawyer model” each case is a discrete argument and only forceful arguments on each point

from either side will establish the “right answer”o Each new decision recreates/reinvents/reinterprets history such that there can be no chain

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AI AS DWORKIN’S HERCULESHercules Hercules is Dworkin’s fictional character who can always reach the “right answer” in every legal question Hercules is superior than humans in ability to get the right answer Some ppl have posited that AI may be Dworkin’s Hercules come to reality

o Before AI, did not seem possible that something could transcend ppls differences in opinion on legal issues to be able to determine the objectively “right” answer

Asking AI to give an answer that best explains and justifies give an answer most consistent w/ all other rules, principles, and policies contained in legal system that is the “right answer”

Advances in AI AI recently predicted outcomes of difficult human rights trials to 79% accuracy AI has passed the Japanese bar (hardest bar in the world) Clear the question as to whether we want AI to be judges/decision makers is imminent AI must be PROGRAMMED by someone big question who decides what inputs to begin with Different potential approaches to programming AI

o Top down approach (natural law) give AI fundamental values and have it determine what the laws SHOULD BE based on those, make case decisions based on those laws

o Bottom up approach (positivistic) input all the rules to IA and then AI generates answers in a predictive way given the rules and previous court decisions

This is similar to DWORKIN’s ideas of pre-interpretive data points

Potential Issues with AI Judges There always has to be someone who programs the computer issues with transparency and bias from the

beginning, even if the computer is evolving and learning throughout Fear of being judged by something with no emotions is human emotionality and empathy something important to

us in judging Will the decisions be “just” if the pre-interpretive data points are unjust? Simply following the unjust past does

nothing to ensure the future decisions are just AI operates at a completely different level than us how will we know if there is a glitch? If we cannot determine

the “right” or just result ourselves, how can we evaluate if AI is reaching this goal

DWORKIN VS HART

Difference in Approaches Hart is a sociological description of what law is Dworkin is a more normative approach and whether the law is normatively justifiable

o Dworkin does not think you can describe the law “as it is” in an objective way the existing law is the pre-interpretive data (past official decisions) but that cannot answer a current legal issue until you constructively interpret them, giving order and cohesion and “fit”

o Note that this approach is better at being able to account for the way that the law is regularly subject to change and re-characterization

Hart’s positivists would have 2 ways of explaining a radical change either the law as existed before didn’t properly satisfy ROR & erroneous OR new court got it wrong b/c they didn’t properly observe ROR and allowed in other factors either way not a very satisfying explanation for changes in law

Some ppl argue that Dworkin’s approach is fine for judges but is not particularly helpful for the “bad man” (Justice Holmes) average citizen who wants to determine what they can do, what judges will actually punish them for doing

Discretion Hart accepts discretion exists (though limited) not his job to defend the existence of discretion, just describing

how the legal system works and discretion is part of that Dworkin law does not have discretion b/c judges are constrained in their decision making, and further we

SHOULD NOT allow discretion not normatively justifiable Discretion not normatively justifiable for two main reasons (above): Separation of powers; Retrospectivity & ROL

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SPELUNCEAN EXPLORERS

CORE FACTSFacts Explorers in a cave, landslide and they are trapped, in order to survive they roll dice and kill and eat someone, now

being charged with murder The victim is the one who originally suggests the plan but tries to back out of it later They use a machine for communication to get expert evidence they will not survive without killing him, priests don’t

tell them what to do Found guilty at trial, jury sought a special verdict to pronounce on facts but leave judgment, judge decides guilty but

tells chief executive they should pardon them Case takes place in year 4300 and all the judges are white men

Significance Portable machine communication to outside shows they have objective evidence the murder is necessary Priests are abdicating responsibility just like jurors did in the original trial – much of case about this Dice are a metaphor for procedural fairness Victim came up with the idea but could not revoke his consent once he had committed

TRUEPENNY CJPOSITIVIST The law is the law, judges are committed to the law in their role, despite sympathies lying elsewhere

o “This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves”

Do not want to encourage ppl to break the law, and letting them off without a murder charge would be doing exactly that

However, will join in jury/TJ in communicating to Chief Executive that should be pardoned o This balances “justice” with following the law and not encouraging disregard of it

Guilty

FOSTER JNATURAL LAW/PURPOSIVE APPROACH SHOCKED that Truepenny tried to wash hands of justice problem by just appealing to Chief Executive – a problem of

justice is exactly what the courts are supposed to deal with What is at fate is the law of our Commonwealth if our law declares this murder, there is no common sense in it

(common sense = natural law/morality), the law would not be just Purpose of our positive law (including prohibition on murder) predicated on men’s co-existence in society, so

clearly here when men were “remote from this legal order” this situation doesn’t fit in the law b/c it doesn’t align with that purpose o Analogy of the landslide closing off the physical entrance as also closing off the legal system leaving them in a

state of nature where law ends at the border of the cave The men essentially drew up a new Charter of gov’t for their particular situation and the procedure they selected

with the dice rolling was part of this new legal order Clear based on purposive approach that legislature wouldn’t mean to criminalize this, so need to interpret the

statute to create such an exception and make the will of legislature effective Not guilty

TATTING JUNDECIDED Usually able to separate emotional and intellectual sides and decide cases only based on the latter but here, unable

to do so

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o Can see ideas of role of judges – should they consider emotion? (think AI judges) Disagree with Foster’s opinions

o how would you just create a new legal system, what is sufficient to say you are “remote” from the original legal order – how thick the rock, how hungry they were, at what time did it flip

o We are not a court of “nature” so who are we to decide cases if governed by that o The code in the law of nature says contracts > murder (rolling of dice was contract) madnesso Is it ever really helpful or make things more clear to determine the purpose of a statute, does a statute ever

only have one clear purpose? o What selection criteria would we be okay with for who should die? Would we see some of them as just or

unjust (ie if victim was only one who believed in an afterlife) Shifts the blame to the Prosecutor shouldn’t have asked for an indictment for murder, trying to abdicate

responsibility for this decision to the Prosecutor “I have been wholly unable to resolve the doubts that beset me about the law of this case… I declare my withdrawal

from the decision in this case”

KEEN J FORMALIST/LEGISLATIVE SUPREMACIST – Guilty Criticism of CJ for instructing the Chief Executive what to do that is not the role of judiciary

o But then is a hypocrite b/c tells the Chief Executive he would also grant clemency but does so in capacity “as a private citizen” not a judge cheap trick, not really allowed!!

Clear-cut principle is supremacy of legislature if there was a breakdown of relationship btwn legislature and the judiciary the legal system would breakdown and violent conflict could result

“I doubt very much whether our statute making murder a crime really has a ‘purpose’ in any ordinary sense of the term… How can we know what its draftsmen thought about the question of killing men in order to eat them?”o Cannot just spend our time looking for purposes or try to determine what the draftsmen meant we need to

look at the language of the law and decide Should let the legislature close this loophole if they want to although judges did invent the defence of self-

defence, if the judges had not done so the legislature definitely would have, do the same here “I feel deeply that my colleagues are insufficiently aware of the dangers implicit in the conceptions of the judicial

office advocated by my brother Foster.”o REALLY doesn’t like judicial activism that Foster is talking about

HANDY JLEGAL REALIST/PRAGMATIST – Not Guilty This is a practical question before us – what should we, as judges, do with the defendants We should do what the people want and reach a conclusion linked to values in community

o “They are ruled well when their rulers understand the feelings and conceptions of the masses.”o This is what wrecks gov’t when ruled and rulers don’t accord

90% of ppl thought there should be no punishment that is importanto “law is politics” stressing importance of popular opinion

“When a man is accused of crime, there are, speaking generally, four ways in which he may escape punishment… can anyone pretend that these decisions are held within a rigid formal framework of rules” o Prosecutor, executive have discretion who is to say court doesn’t also have discretion in the same way, we

are all subject to rules why would we be more restricted Risky that Executive won’t pardon them (and in fact heard rumor he would not)

VERDICT Since 2 judges said guilty and 2 said not (one abstained), the conviction is affirmed and they will be hung

o Irony of deciding by a procedural rule at the end of things despite all the debate Year of 4300 shows us that these problems and disagreements will never go away

THEORIES OF JUSTICE

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DISTRIBUTIVE JUSTICE What is Distributive Justice Distributive justice is about the distribution of goods (goods = what people value and need) Question of distributive justice is how to distribute limited goods btwn ppl in a JUST SOCIETY Law plays a major role in bringing about (or not bringing about) the goals of a just distribution of goods in society

[as well as deciding what distribution rules are indeed “just”] Fundamental value underpinning distributive justice = EQUALITY

o But scholars debate on equality of what exactly Competing fundamental value is FREEDOM freedom to decide how you distribute or dispose of your own goods

without having to worry about the distribution being equal o Diff theories of distributive justice debate on how to appropriately balance these two values

Rawls = equal focus on both Nozick = more emphasis on freedom Marx = more emphasis on equality

Distributive justice is different than corrective justice o Corrective justice brought about in response to a wrong, legal system deters and punishes o Corrective justice is not interested in the wider question of the initial distribution of goods or re-distribution

of goods apart from the re-distribution that occurs in response to a legal wrongo Is there necessarily a connection btwn the two? No, but some ppl seem to think a lack of distributive justice

may be a factor in whether or not there need be corrective justice (ie scamming a big corporation) (Bix)

Necessity of Distributive Justice Without distributive justice there would be no tax system and thus no public services, no health care system, no

public infrastructure There would be no way to enact corrective justice police, courts all depend on public services What would start occurring is private militaries funded by the rich enacting their will upon ppl Globally distributive justice responds to the issue of widespread poverty vast majority of ppl in the world do not

have access to distributive justice and this shows in their life situations o If access to justice is key to ROL, this means most of the world doesn’t have ROL

RAWLS’S LIBERAL THEORY OF JUSTICE

Liberalism Gives everyone equal access to BASIC goods level playing field

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But beyond that, ppl have freedom to improve their situation, PROVIDED it is in the best interests of everyone in society (not hurting others)

This is more than just a political ideology b/c it goes to the heart of ideas about distributive justice balancing equality and freedom

Original Position & Veil of Ignorance Veil of ignorance = a throught experiment where ppl are stripped of all their natural characteristics and determine

the society they want to live in behind a veil of ignorance, not knowing what characteristics you will have when you are born into it o Participants asked to define ideas of distributive justice from this “original position” they occupy behind veil

Rawls believes ppl will be risk adverse b/c do not want to be in the very bad positions want to create a society that is reasonably fair to avoid this risk most ppl are “fine” but few are “great”

The “original agreement” is the system of society we come up with from behind the veil Rawls thinks that ppl will believe a distribution of goods, to be just, should not defer to random luck (because you

do not know where you are going to fall) V. important to do experiment from original position b/c ppl are selfish if they know where they will fall in society

o Also, we would never reach a consensus due to different positions in life that would create a majority and a minority and the minority would have a ground to object to whatever principles imposed on them

This ends with a balanced playing field on the basic needs – education, healthcare (equality aspect) – with opportunities to WORK to improve your station in life (freedom aspect)

The notion of everyone agreeing as foundation of just principles is the basis of “social contract theory” (Bix)o This gives force to argument that gov’t can legitimately govern subjects if subjects have granted such power

Two Basic Principles 1. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others

o Basic liberties include political liberty, freedom of speech & assembly, freedom of conscience, right to hold personal property, right to fair treatment under the law

o This principle has priority over the second equality of liberty cannot be traded off for wealth or equality of resources – negotiators will not take chances with their liberty

2. Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage [aka to the greatest benefit of the least advantaged]; and (b) attached to positions and offices open to all o Economic inequalities are okay as long as they meet these conditions doctors can have a high salary as long

as everyone has the opportunity to get that position and there is graduated taxeso Typical way this is achieved graduated tax regime

Justice Rawls justifies equality by saying that everyone’s well-being in a modern society depends on interdependence and

cooperation, but that will only happen with willingness of everyone to take part in this division of labour o If you want ppl to cooperate, even those more poorly situation, you must have reasonable terms – something

close to equality Rawls sees “justice as fairness” a just system is a the agreed upon system by persons under fair conditions Rawls’s later work presents justice as a set of institutions and practices allowing ppl with different ideas about “the

good” to co-exist and the two principles reflect the consensus of “the good” values everyone would agree upon

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LEGAL REALISM

SKEPTICISM Fact skepticism moral judgment of victims (Kosovo tortured, became drug addict and sold daughter) Fact skepticicm saw one of the accused, trial said couldn’t say where saw this happen Rule skepticism unlawful confinement as cruel treatment, not war crime b/c no war crime for arbitrary detention

in civil war

KEY TENETS OF ALRPushback Against Formalism Formalism idea that judges decide cases on basis of legal rules and reasons, which justify a unique result in

most/all cases Formalism: rules + facts = decision

o Presents argument as if the conclusion followed simply and logically from undeniable premises (Bix)o Formalism didn’t care about practical consequences of decisions in the real world decided on pure labelso Idea that law is a science (Christopher Langdell) all the available materials of this science are printed

Tried to derive law from basic axioms and logical deductions to create well-ordered system of rules ALR is a pushback against that saying that is not actually how the law works at all

o Example “proximate cause” concept based on public policy, it is practical politics not logic (Palsgraf dis) Legal realism is concerned with what the courts REALLY do, how the law REALLY functions, where theory becomes

concrete and meaningful empiricism ALR believes decision = facts + law + “X” and that the X is actually most important factor in determining outcomes

o "The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." – Justice Holmes

o X = politics, morality, prejudice, bias ALR thinks that judges actually use INDUCTIVE, not deductive reasoning to make decisions

o start with the result they want and then work backwards to find ways to justify it (inductive) rather than starting from premises and moving to conclusion (deductive)

o In this way, legal process is about defending your “hunch” based on the X factors, but using legal reasoning as a façade in claiming you are using deductive reasoning

o In this way, matters extraneous to law become most powerful in deciding cases Prominent ALR theorists Roscoe Pound and Justice Holmes

Indeterminacy & Class of Legal Reasons Since legal decisions are made due to the X factor, there is necessarily indeterminacy in legal decisions Rational indeterminacy the available class of legal reasons did not justify a unique decisions Explanatory indeterminacy legal reasons did not suffice to explain why judges decided as they did However, ALR doesn’t believe law is ENTIRELY indeterminate any given legal dispute gives rise to a class of legal

reasons that are all plausible in reaching the verdict (4-5 plausible answers) o In choosing btwn the 4-5 possibilities, the court has adopted X factors that are not a product of law, so the

answer cannot be said to have been “logically: found ALR believe that words on a page do have some meaning but there is always significant wiggle room for multiple

plausible legal interpretations o These multiple interpretations require consideration of factors outside pure law and facts to have judges

make a decision Interpretive canons lead to indeterminacy b/c you again get choices on how to use them strict or loose

interpretation, the choice you make is not a function of law is a function of “X” Legal realists view precedent as broad, open, and indeterminant b/c again inherently open to interpretation, entire

job of lawyers is to find precedents that suit their side and allow to reason their hunch One common thread is idea that judges respond mostly (or entirely) to the facts of the case, not legal principles

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ALR Approach ALR thinks abstract theorizing about law is not really their task, they are concerned about empirically what

decisions are being made Theorizing could be irrelevant and part of the façade of legal analysis Or it could be relevant to ALR b/c gives judges certain legal interpretation for considering cases (makes up some of

the X factor) dictating how they choose btwn a class of legal reasons Theorizing is influential but not “legal” another example of the X factor Theorizing certainly does not necessitate concrete legal outcomes ALR is a descriptive critique of how law really works

o They do not have a view on how law SHOULD work – not their project o Probably think that judges should be more transparent about X factor and stop façade of mathematical

deductive reasoning

Bad Man The “bad man” is a citizen who does not care about legal reasoning or theorizing, only wants to know what the

courts are likely to decide in fact, and thus what he can get away with w/out punishment Does not care about being a good citizen or compliance except to the degree compliance avoids punishment Lawyers are paid to predict and bet on what a judge will decide ALR thinks “the law” is this prediction of what the courts will, in fact, do in each case in front of them

o “if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” - Holmes

The bad man cuts through the moralistic language of lawyers and judges and seeing what is actually going on

Fact Skeptics & Rule Skeptics Fact skepticism when presented with a version of facts and skeptics say no way of precluding a range of answers

about what actually took placeo Skepticism comes from doubting whether judges can concretely determine what happened in a mathematical

objective way as claimed o ALR says that judges have options to decide from based on the known facts and they select based on X factor o TRIAL COURTS are most interesting for this b/c that is where determination of facts take place that appeal

courts over turn expressly b/c they say TJ have the best chance at getting it right Rule skeptics skeptical about what judges determine the law to be again governed by X factor

o Mostly interested in appellate courts that decide law as precedent and can overturn incorrect law by trial judges

Combining rule and fact skepticism bring together the ideas are indeterminate and not reached by objective means objective decision making is a façade and not actually deductive approach

RELATIONSHIP WITH OTHER THEORIESLegal Realism vs Philosophical Pragmatism Two theories arose at the same time PP = idea that philosophy is disconnected from th real world and ppl should stop doing that need to have

philosophical discussion in the language of “town hall meetings” that are not high or lofty Not a full vilification of abstract concepts just important to ask “what is this good for” PP and ALR think we should be trying to see how theories work in the real world

Legal Realism vs Dworkin’s Interpretivism Dworkin says there is NO SUCH THING as discretion b/c what appears to be gaps in the law is filled with principles

and policies discerned from the legal system as a whole

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Dworkin would say the “x” factors are actually principles and policies Dworkin also has a different approach his is normative, how judges should deide cases

o Compared to ALR (and Hart) which is how things are, not how they should or should not be ALR thinks that discretion is primary in how the law functions and is enormous

Legal Realism vs Positivism Both projects are descriptive about what the law is, not how it should be Big difference is the view of how much words on a page restrict meaning and interpretation

o Hart thinks words mean things most of the time and the core of settled meaning is dominanto ALR thinks the penumbra of doubt is dominant b/c the X factor and the interpretive canon flexibility mean

that words on a page are somewhat restrictive but still enable a class of legal reasons Both judges asking “what is the law on restraint of trade”

o Hart would say look up answer in statute 6 months that is clear example of words binding meaning, ridiculous to suggest otherwise

o ALR would say that in some circumstances like this one there may be a “correct” answer like 6 months, but they say there is a class of answers available in most situations (and even here, judges are deciding when this 6 months starts to run)

ALR are concerned with discretion in a way Hart is not Hart accepts and says is not a problem b/c is small, ALR says is much bigger than you think and this leads to façade of formalistic reasoning

Legal Realism vs CLS, Feminism, and Law and Economics ALR started as the gateway for ppl to advance an analytical and critical agenda, in particular from the standpoint of

certain grounds ALR leads to CLS which takes the ideas even further says things are absolutely indeterminate, judges can decide

what they hwant and this allows a legal system that goes against justice Other grounds feminism, critical race theory, law and economics, all trying to figure out what the “x” factor is and

how that makes decisions and the legal system biased CLS and other critical studies takes the descriptive approach of ALR and adds a normative aspect that they are both

observing how law functions with this discetion and saying this is a problem leading to injustice

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CRITICAL LEGAL STUDIES

ORIGINS Origins in ALR Officially started in 1977, but dates back to civil rights movement against Vietnam war in 1960 Offspring of legal realism ALR opened door, CLS threw it open ALR started with the idea that the law is telling us lies façade about how it operates

o CLS said that not only is that true, it is normatively a big issue o Law is part of the problem with injustice and is so effective in serving injustice particularly because it

claims (and convinces us) that it serves justice deceptive These ideas arose out of the ideas of social discontent at the time ppl wanted to step outside the established

political and legal structures

Influences Born out of the ideas of false promises of progress that came from the political atmosphere of the time Heavily influenced by European social philosophers Marx, Weber, Gramsci, Foucault, etc

o Some CLS scholars were hidden Marxist (at the USA at the time, ever looked down upon)o The Marxist philosophy underpins many CLS ideas

CLS was focused on the ways that law contributes to illegal hierarchies producing domination by the ruling class o And law particularly not just failing to stop dominance, but is vehicle entrenching hierarchy & dominance

KEY TENETSLaw, Politics, & Dominance CLS sees the way that law functions, the structure, and content as being a function of the pre-existing political power

structure in our society Law is a product of the higher classes, and in that way it expresses a set of beliefs and prejudices that legitimate the

injustices of society wrt the lower classeso EXAMPLE: criminal law numerically, most common offences are white collar crime but most common

enforcement is against poor blue collar ppl o CLS would say this is not an exception or a mistake law purposely works to favour dominant groups

“How could law be so tilted to favor the powerful, given the prevailing explanations of law as either democratically chosen or the result of impartial judicial reasoning from neutral principles?”o Law is a trickster makes promises of equality, fairness, and impartiality yet society maintains extreme

inconsistencies CLS says this is not a failing of the law, it is supposed to encourage inequality and is set up to do that, just lies about it

Law is politics you cannot have a “pure” theory of law (Kelsen) b/c it is impossible to have law that is neutral, value free, or insulated from politics politics and society dictates law

Robert Gordon “So the big premise of the CLS method, the raison d’etre of its scholarship and local political tactics, is that the deployment of ordinary legal discourse is a form of political practice, and one with unnecessarily conservative consequences”

“long ago, empowered actors and speakers enshrined their meanings, preferences, and views of the world into the common culture and language. Now their deliberation within that language, purporting always to be neutral and fair, inexorably produces results that reflect their interests” – Delgado and Stefancic

Indeterminacy of Legal Doctrine CLS seeks to demonstrated indeterminacy of legal doctrine and show how sets of legal principles can provide

competing or contradictory results ppl in the legal system can manipulate doctrine to get any result they wish NO CORE OF SETTLED MEANING – all penumbra of doubt, all discretion, and this is based on politics Words on a page can be interpreted to get any result you want (and the result that is achieved is always the one that

favors the dominant class) Robert Gordon “But by showing that the agile interpreter can justify as economically efficient virtually any

imaginable scheme of social arrangements, the critique helps to deprive technology of its mystery” When legal materials do not actually determine outcome of legal cases, rule of law values are undermined

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Pacification & Paralysis Because law says that it is supporting justice, it pacifies ppl and inhibits from having commitment an demotion to

define a society we want to live in and argue ours is currently unacceptable The idea of law as our savior prevents us from constructing an actual savior Law does part of this job through mystifying outsiders to make the legal result seem legitimate, or at the very least,

to make it difficult to understand why they are reached the way they are o Easiest example is use of latin in the law despite the push for transparency as key f’n of law

CLS says not an accident to choose a dead language nobody speaks trying to mystifyo Another example is the restrictiveness of law school saying ppl need to be very smart to understand the

rules that govern society, CLS thinks this is purposely perpetuating hierarchies and classes Idea of hegemony i.e. that the most effective kind of domination takes place when both the dominant and

dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are” (Robert Gordon)o When the dominated class believes the existing order is as good as it can get, they will not try to change it o Law is the mechanism used to convince ppl this is as good as it can get and facilitating these expectations,

preventing uprising and change When you are engaged in the struggle in the format and following the rules of the legal system that is built against

you, you are unable to win its pretense that science, magically substituting for agonizing political and ethical choices, dictates that if we

want to remain prosperous we must endure all the miscellaneous injustices now in place and even invent new ones.” – Robert Gordono we do not have to engage in agonizing choices b/c we see (falsely) law as the solution to remain that way

and not have to think about choices we have to endure injustices of law CLS sees itself as radical b/c invites you to think about the society you want to live in and to discard law in achieving

that vision Changing the legal system and legal institutions can be “radical” in a number of different ways (Duncan Kennedy)

o Radicalism can consist in believing there should be fundamental and far-reaching reforms in the legal system o Radicalism in elite institutions is also to changing the distribution of ppl who are in those institutions

affirmative action for women and minorities CLS thinks that need to try to combat the inequality of the current political standing by redistributing class power

o Radicalism aimed at changing the culture internal of the elite institutions themselves changing the culture of institutional sexism through challenges to microbehaviours (exhibited against the minority groups)

This is connected to the feminist ideas of “the personal is political” issues that seemed to be part of trivial individual life are actually part of the sexist structures in society and are not just personal, this is similar to the microbehaviours that occur in elite institutions (like interruption, dirty jokes, etc)

“For if social realities consists of reified structures, “law” and “the economy” are both belief-systems that people have externalized and allow to rule their lives.” – Robert Gordono Reified structure - making a thing out of something that is not actually a thing

CLS thinks that legal training produces paralysis graduates of schools are drained of energy and hope for social change b/c corporate law offers money, everyone else just happy to get any job all get to the point that nothing can change anyway, so why even try CLS thinks this view comes from conservatizing elements in academic-legal discourse (Robert Gordon) o Opposite view though is that legal studies does give you the ability to argue in the correct language

legal/political to actually be able to change the system

Criticism of CLS Often seen as just presenting problems with no solution Eliminating all legal norms would help the far left but it would also help the far right eliminating human rights

norms far left says yes need to step outside box, but far right also encourages that for the wrong reasons Is it really true that EVERY law is hegemonic with no emancipatory potential?

o Law certainly has the potential to disrupt power b/c power has promised to obey the law the way to push back against power is to use the law, rather than just arguing it is rigged

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o Of course it is difficult when it is stacked against you but better than doing nothing

FEMINIST JURISPRUDENCE

BACKGROUND FACTS ABOUT GENDER EQUALITY

1 in 8 women die giving birth in Sierra Leone - worst in the world o Vs about 1 in 200,000 in Sweden - best in the world o Difference btwn the two is largely health care

In 1912, the BC legislature passed the Act to Remove the Disability of Women so far as relates to the Study and Practice of Law

Women were only given the vote in Canada in 1918. This right was limited to white women, excluding Asian and First Nations.o At this point at least some women could participate in the democratic process - but is that when they started

participating? Is this the point where its "fair"? No, marks the very beginning of the disparity btwn law and social reality - this is the point where CLS

would say begins huge distance btwn the promise of law and what it deliverso Before 1912 the role of law was to prohibit - it restricted participation

Crits would say after 1918 it ushered into a reality where ppl were okay with women not participating in the democratic process

So what is the disparity btwn law 's promise and social reality since then? Gap btwn what is legally mandated (equality) and lived social experience

The CLS say this is NOT a coincidence - not that the law was frustrated in trying to reach equality - the law is what is causing the gap; law constructs these types of power imbalance o Does so by pacifying ppl with this legal structure so they don’t step out and insist on something different - so

they don’t ask for a powerful political way to guarantee equality o It was not until 1971 that a female UBC graduate was appointed as a Bencher at the Law Society.o Madame Justice Bertha Wilson was appointed as the first female justice of the Supreme Court of Canada in

1982.o Kim Campbell is the only woman to have served as Prime Minister in Canada. She served for less than a year

in 1993. To date, there have been 23 Prime Ministers.

SCHOOLS OF FEMINIST JURISPRUDENCE

Liberal Feminism Emphasis on equal opportunity and women being equally rational; free choice by emphasizing sameness (Ginsburg)

o Many early cases brought by men excluded from womens institutions as well all about equality Goal to outlaw biased treatment and ensure laws provided women w/ equal opportunity to men (Fineman)

o Attacked clear differences codified in law and the stereotypes that justified them Fighting against the idea that women are inherently more emotional and thus less capable of performing functions

in society (Nussbaum idea) women are equally rational Opinion that women are the same as men and should get to make the same free choices Sex work should decriminalize, women should be able to choose for themselves, regulate and protect women in

that work from violence, can genuinely make choice to engage in sex work Focus on autonomy of women Has a link to idea of seeing law as insulated rational system but critique that this system is based on biased and

patriarchal ideas in the first place that makes it unequal

Cultural Feminism Emphasizes differences in cultural construction of gender (Carol Gilligan) Social constructions of gender femininity and masculinity and seeing how this plays into law, justice, and reality

o Found masculinity constructed in separateness and threatened by intimacy, femininity opposite Idea of acknowledging there are social differences and these should be embraced Argument that women were diff than men b/c had a unique way of “knowing or feeling” (ie, mediation) (Fineman)

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Radical Feminism Differences btwn men and women as bases to challenge domination (Catherine MacKinnon) Saying women are the same as men is “playing into their game” are inherent differences and the law should

accommodate them o The law itself is male law attacked as being reflective of male bias (Fineman)

Idea that facially neutral rules also generated inequalities in a society that is inherently unequal (Fineman) Legal system shouldn’t just be organized around men if organized around women, recognizing differences, we

wouldn’t have to fight for things that only exist for women (ie maternity leave) Sex work inherently structured in a way where women never fully choose to be a part of it, are forced into it

(paternalistic view won’t know what women want until men “get their boots off our throats”)o Everything is forced upon women in patriarchal hierarchy, can never say anything is free choice o Law & justice should protect women’s interests from systemic exploitation by criminalizing act of prostitution

and men engaging in the inherently unequal and violent act (but don’t criminalize women victims) Idea that women have inferior/subordinate position in society so need special concern to equalize things (Fineman) Substantive equality is the focus rather than just facial equality = liberal feminism

Post-Modern Feminism Denies single theory of gender or equality (Judith Butler) More plural and diverse, ppl should stop thinking in broad sweeping singular categories Ppl are multifaceted and we should consider that in determining law and justice

FEMINIST METHODOLOGIES Feminism jurisprudence = the way that feminism has reformed, advanced, and looked at the relationship btwn

feminism and law and justice feminist perspective informing thinking about law Early feminist scholars focused on revealing the ways legal systems were calibrated inadequately

o Did not reflect experience of women, highly patriarchal o Importance of looking at legal doctrines and asking whether women’s experience is reflected in how it

actually functions ie self defence, continuing career after children Feminists wanted to bring to the forefront the assumptions, assertions, and definitions of experience the law makes

and point out they are inherently unequal or non-representative of female experienceo Status quo is “invisible” default need to show that systemic bias is invisible, normal, and entrenched which

is what makes it so difficult to expose and change (Francis and Smith) Same idea of a “mismatch” btwn what the law’s assumptions or imposed structures and women actual life

experience that is subject of CLS o Taking it further what interests are served in law’s making of promises and not delivering on them

serves dominant class in society (men) Feminists also looked at what reforms had been proposed, and how would affect women ideologically and

practically consider what ideal world would look like and how law can get us there One major thing is feminism is an integration of practice and theory (Fineman) assesses and revises institutions

KEY FEMINIST TERMS/PHRASES

Consciousness Raising Idea that in a facially equal legal environment, the more powerful group often does not realize they are more

powerful does not realize things are substantively not equal b/c their lived experiences do not reflect that Consciousness raising is making the group in power aware of lived experiences of non-powerful group

o Understanding how common a phenomena is can raise consciousness (ie Me Too) Hearing stories from the less powerful group brings greater perspective and might encourage change to come both

from the non-powerful group and the powerful group – more likely to happen

Intersectionality Early feminism was critiqued as being upper class white women when in fact the effects and lived experiences of

non-white, non-rich, non-elite women are much difference

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Intersectionality appreciates the additional layers of discrimination, bias, and oppression that women of colour, gay women, disabled women, poor women, etc experience

This is an exponential relationship, not a simple addition

The Personal is Political Attempt to break down the state perception that the personal sphere is okay to leave untouched by law/state

interference b/c is a private matter not to be interfered with o Big part of feminist critique is to stop this strange divorce private vs public o Large part patriarchy has been about relegating women to private realm o Discrimination and domination happens in private realm just like it does public o Domestic abuse, women being relegated to homemaking not working, etc

Part of work was showing that the dichotomous concepts of private/public have political implications (Fineman)o More than just labels implications for state regulation and legitimacy of norms of interaction

The fact is that the politics of a women’s situation cannot be artificially divorced from her personal lifeo “The personal is political means that women’s distinctive experience as women occurs within that

sphere that has been socially lived as the personal – private, emotional, interiorized, particular, individuated, intimate – so that what it is to know the politics of woman’s situation is to know women’s personal lives.” - Catherine MacKinnon

The ideology of the public/private dichotomy allows government to clean its hands of any responsibility for the state of the ‘private’ world and depoliticizes the disadvantages which inevitably spill over the alleged divide by affecting the position of the ‘privately’ disadvantaged in the ‘public’ world.” - Nicola Lacey, Unspeakable Subjects (1998), p 77.o If the state is just relegating all ideas about discrimination and inequality into the private realm and then

saying cannot touch the private realm b/c it is private, that is unjust Liberal and radical feminists have some disagreement here

o Radical feminists say women cannot be choosing to stay at home and not participating (living in this apolitical space) is b/c of the patriarchal society no real “choice”

o Liberal feminists would say women should have the choice to stay at home if they want but also the choice not to and just b/c they stay at home is the entire point that you cannot understand their politics without also understanding the personal aspects of lives

The Tyranny of Objectivity When we are promised objectivity and neutrality this comes from a pre-existing place of patriarchal and male-

dominated ideals that operates to the detriment of women Objectivity is tyrannical b/c it always ends up deferring to power But also the idea of objectivity makes it harder to fight and harder to show there is inequality

o Can also lure into false sense of fairness – CLS idea of pacification and paralysis Objectivity does too little in the fight for justice “With nothing above ground, abstract universality constructed a dark tunnel to its tainted delusion. It made

maleness the norm of what is human, and did so sub rosa, all in the name of neutrality.” – Ann Scales

RELATIONSHIP WITH OTHER THEORIES

Rule of Law ROL is part of the problem, particularly thin concept

o Thin concept just requires ppl to comply with the rules but when the rules are inherently partriarchal and support inequality, this does v. little work in actually substantively amending the law and its relationship to justice in favour of women

Substantively conservative outcomes not good enough ROL as coherence and consistency reinforces status quo and existing power relationships (Scales, MacKinnon)

ALR and CLS Feminism agrees that law has problems and specifically affects women just like CLS but specific

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Key in both CLS and feminism is the mismatch btwn what law promises and what it actually delivers, the lived experience of ppl in society o CLS goes further to say this is not just a failure, it is purposeful and law functions to create a society that

tolerates disparities so ppl do not engage w/ politics and fight against it Similar to ALR in looking how things actually happen on the ground, how is the legal system actually affecting the

ppl in it and specifically this is affecting women in an unequal and biased way despite any claim of objectivity or logical reasoning

MARTHA NUSSBAUM & EMOTIONSGeneral Concepts opening a wider space for human emotionality undermining the hyperrationalistic (masculine) vision that has

defined law for all time until very recently idea that anger underpins a lot of our legal system when someone wrongs you, you get angry and the justice

system punishes with the “anger of justice” ppl think great change and revolution requires anger but anger is fatally flawed from a normative viewpoint don’t need it for justice or revolution political justice should do more than put a cage around resentment should transform it into something calm,

reasoned, and measures (Athena and the furies) law also has a role in reducing anger used to be eye for eye familial retaliation and constant revenge, law takes

over the task and in that way eliminates some of anger of families

Aristotle and MLK on Anger Anger is an emotion that is a response to a significant damage to something or someone you care about and you

believe the damage is wrongfully inflicted Also contains a wish for payback or retribution

o This is more controversial o This doesn’t have to be payback yourself - can wish the law, divine justice, karma o This is what differentiates anger from other emotions - this desire for a strikeback

Anger is a response not to any wrongful act, it is generally to a slighting to yourself o Not always - can be angry at not-following of principles or angry at how other ppl are treated

But inflicting pain on the wrongdoer does nothing to bring back what was losto It is an empirical question whether punishing the wrongdoer will actually help

A wronged person has three pathso Status - seeing events as entirely about you and your relative ranking so punishing the offender makes

you better off relativelyo Payback - offender suffering will restore what was lost o Rationality - picking what will actually help in the particular situation

may be punishing the offender but in a forward looking way not simply retaliatory So anger doesn’t make sense either way doesn’t assist with any of the three paths

MLK speech black ppl have been written a “Bad cheque” not about humiliating or punishing the white ppl, about repaying the debt they owe

We are sure there are sufficient funds for equality - not anger again Oppressor's pain and suffering do not make the inflicted free - retributivism is not helpful

Rationality vs Emotion Law has forever tried to see itself as rational apart from emotion Nussbaum’s work on all emotions including anger asks why this is necessarily the case Emotions have significant aspects in law and justice and should recognize that Saying that law has no place for emotions mirrors the ideas of masculinity as rational and femininity as emotional

and therefore inferior Anger is unhelpful and overrated law should stop deferring to anti-social obsessive emotions like anger, but

doesn’t mean it cannot consider emotions generally just be open about it

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GLOBAL JUSTICE

STATE OF GLOBAL INJUSTICE TODAYSad Facts Global Access to Justice

o 1.5 billion people cannot obtain justice for civil, administrative, or criminal justice problems. o 4.5 billion people are excluded from the opportunities the law provides.o 253 million people who live in extreme conditions of injustice

Slavery, crimes against humanity, overt violent oppressiono “When viewed in the aggregate, these figures amount to 5.1 billion people – or approximately two thirds of

the world’s population – who face at least one of these justice issues, with many confronted by multiple injustices” - Source: World Justice Project, Measuring the Gap (2019)

The richest 1% own half the world’s wealth and the poorest 3.5 billion adults (70% pop’n working age) have 2.7% of global wealth

1.3 billion ppl live in extreme poverty, w/ 22,000 children a day dyingo Conflicting violence by hand and violence by politics/economy if this happened by hand, would be a war

crime but there is nothing done b/c seen “inevitable” due to wealth distribution 2.3 billion ppl do not have basic sanitiation facilities like toilets and around 3 billion ppl cook and heat homes using

open forest and simple biomass stoves/coal (4 M ppl die early from this air pollution)o Well agreed upon that the two most pressing global justice issues are toilets and stoves

There are 750M illiterate adults, 2/3 of which are women this entrenches poverty and social dependenceo Rawls: literacy would be a basic good that ppl behind veil of ignorance would probably want

Increased globalization 258M ppl living in country other than one of their birtho Thinning of the state o This number includes 26million refugees or asylum seekers, 84% of whom are hosted in low and middle

income countries Climate change -> effects will be distributed unequally upon the poor countries yet most emissions are created by

the rich countries

Learned Helplessness Learned helplessness - situation where a problem seems so immense that ppl stop trying “I consider it a dangerous misconception of mental hygiene to assume that what man needs in the first place is

equilibrium or, what is termed in biology “homeostasis” i.e. a tension-less state. What man actually needs is not a tension-less state but a striving and struggling worthy of him. What he needs is not the discharge of tension at any cost, but the call of a potential meaning waiting to be fulfilled by him.” - Viktor Frankl, Man’s Search for Meaningo Our approach to problems should be couched in meaning not a search for a tension-less state

“It should be pointed out that the impossible happens rather frequently. Recent instances include decolonization, the American Civil Rights Movement, the liberation of Eastern Europe, the collapse of apartheid in South Africa, the election of an African-American as president of the United States, and the Arab Spring.” - Richard Falk, Toward Humane Global Governance: Rhetoric, Desire and Imaginarieso All examples of things that ppl would prior have said were unthinkable

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ROLE OF THE STATE

Sovereignty & Role of the State Sovereignty comes from the idea that each country has its own sphere and within it they can do what they way

organize the way they want, have legal system the way they wanto You do not tell another sovereign state what to do, you co-exist that is all we want (thin justice) mostly about

just avoiding war This comes from the Westphalian notion of the nation-state where war was about empires and running your state

the way you wanted to Key to idea of justice b/c if you think sovereignty need be protected, the idea of justice should stay within your

sphere your idea of justice is limited to your nation state o Idea that we cannot agree on any justice greater than that, only bind ourselves not others

States were defined historically by straight lines arbitrarily and forcibly imposed by colonization/world conferences o Berlin Conference of 1884 divided random lines in Africa to avoid war in Europe

The idea of whether justice ends at the state border is a key debate in global justice debates o Undoubted that states are important in our thinking of global justice, but are they the appropriate "frame" for

viewing justice? “It is now apparent that no claim for justice can avoid presupposing some notion of

representation, implicit or explicit, insofar as none can avoid assuming a frame.” (Nancy Fraser)o Framing matters physically but also temporarally do we care about future generations

Framing and whether it is done around the state has a HUGE Impact what we include in our justice concerns (and who we include) necessarily dictates who we exclude which can cause great injustice outside the circle o Before globalization ppl didn’t really interact outside the circle of the state, but they do now

Thomas Nagel’s Statist View Nagel’s view is that he thinks that states DO MATTER in the way we conceive justice This is because of democracy the entire point is that we cede our power to fight back and in return we elect

representation from within our group Those ppl we elect are supposed to look out for the best interests of the ppl who elected them because of the social

contract we have made with them Our duties arise in our state b/c they are created by our democratic process

o If we go away from this we risk arbitrariness Rawls argued liberal requirements included equality among citizens but that is a political demand only possible

w/in a unified nation state o If Rawls is right the most we would get would be “justice” or “injustice” wrt relations between state a “just”

world would end up amounting to just a world of internally “just” states Hobbes says no justice w/out sovereign state would require a world government for global justice w/out sovereignty to confer stability on institutions, there will be no practical justice depends on a coordinate

conduct of large ppl backed by force we owe some minimal concern to fellow human beings threatened with starvation, severe malnutrition, or

death but that is quite apart from any demand of justice political conception: sovereign states are more than just instruments for realizing justice their existence is

EXACTLY what gives justice its application and value o while the actual boundaries might be arbitrary or accidental, the exercise of sovereign power over citizens,

the imposing of duties of justice towards one another through institutions is what makes justice possible within states and for sovereignty we need a boundary

o justice is something we owe through shared institutions ONLY TO THOSE WHOM WE STAND IN A STRONG POLTICIAL RELATION only enter voluntarily, no obligation

a sovereign state makes unique demands on the will of its members through institutions this imposes moral obligations of justice (positive obligations)o but without global institutions to help impose these obligations globally, impossible to do it

historically in nation states, sovereignty usually precedes legitimacy first you get a concentration of power, then you get demand for concern of the interests of the governed and give them a greater voice same thing would have to happen here in global justice

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Peter Singer and the Drowning Child comparison of global poverty with the duty to help a drowning child if you walking around and you saw a young

child drowning, you would have a moral obligation to help if would be easy this is the same as global poverty – 2300 children die of dysentery each day b/c of a lack of extremely inexpensive

medicine it would be easy to help, we have a moral obligation this places the obligation as a positive duty to assist, it would be an omission to ignore it

Thomas Pogge’s Cosmopolitan Response Cosmopolitanism the demands of justice derive from an equal concern or duty of fairness we owe to all fellow

human beings; institutions to which standards of justice apply are instruments for fulfillment of that dutyo See themselves as citizens of the world, each human is entitled to equal consideration and moral concern no

matter their affiliation States do not and should not matter at all you are only drawing a boundary around a territory to isolate it from

the suffering everywhere else and then claim your “Circle” is doing well Should forget about the state, and extrapolate all basic principles across the world

o Do not kill, everyone should have food, everyone should have basic education No reason that morals should be affected by an arbitrarily drawn border no moral basis for ppl on one side to be

doing well and suffering on the other o Our willingness to draw the border line allows the injustice outside the border to go unchecked b/c we

see it as not our problem but the very fact that we drew the line makes it our problem Democracy is only ever successful when parasitic when other ppl suffer

o Colonialism in Europe and free slaves in the USA o Similarly, disparities of wealth are not coincidental global poverty is caused and maintained by the states

without poverty This was bound to happen due to the thin concept of justice found in the US Charter all states agreed was for

there to be no war, they did not try to do more than co-exist In response to Singer, Pogge says the analogy is broken b/c WE PLACED THE CHILD IN THE PUDDLE

o We are not innocent parties in this, it is a positive act we have done to put it there so it is more than a mere omission to ignore it now

o We have responsibility b/c we have created the inequality and maintained it (one of the ways is in how we framed our concepts of justice by drawing them in circles only within our community)

o since developed countries impose coercive global order on the poor that cause harm, they have important responsibilities to reform the global order such that it ceases to do so and instead secures better human rights

WORLD GOVERNMENT

World Government as a Basis for Delivering Global Justice Immature system of global justice we have right now But also there is no way we want a world gov't - anything with that much power and influence across the entire

globe would necessarily be a tyrannical regime o Everyone who has attempted it has been awful and brutal

To what extent do we currently have a world government, replete with legislature, executive and judiciary?o Pretty much not at all

If every state gets a vote, that would give power to the third world What about if every man/woman globally gets a vote (online) - hands power to the numerically

largest countries, India, China, Brazil Neither of these have a situation where the real superpowers that have the most MONEY and

GUNS are in position of power Our current system defers to these countries (Permanent Security Council) – seems

inconceivable to change it so dramatically from our current systemo For all these reasons, any UN resolutions are democratic, all the states vote, but they are not legally

bindingo No court of compulsory jurisdiction - everyone has choice whether an international court has jurisdiction

over them - need to agree to be part of it before it binds you - opt in basis

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o UN not much of an executive

AMARTYA SEN’S FINDING INJUSTICE Rawlsian tradition based on ideas of social contract - Rawls asks what ppl would agree to behind veil of ignorance

wrt the distribution of goods in society so that comes from the idea that we have an agreement in scoeity grounding a notion of justice under a particular soveriegn state

o To move this globally doesn’t make sense b/c there is no global social contract in the same sort of wayo Sen rejects Rawl’s view and says it is a waste to constantly be looking for this concept of “justice”

Departs from social contract approach (Rawls) in three wayso Comparative nature of this theoryo Focus on lives of ppl rather than on institutions o Inclusiveness in allowing voices globally, not confining attention only to views of citizens of a given

sovereign country We do not need a perfect theory of what is justice to do meaningful work Sen's idea - we are not going to agree on justice, but we might agree on injustice

o Lets focus on what we agree are the injustices because we can reach agreement on thato We are not going to resolve the contest btwn libertarianism, liberalism, and Marxism but we can all agree

that slavery is wrong and is an injustice o We might not be able to agree on a fair distribution of wealth globally but we can agree that we need

action on climate change Focus on comparative rather than superlative or transcendental

o When we make actual choices we tend to be limited to non-transcendental choices (not the "best" choice)o It is possible to compare the justice of two different situations w/out perfect theory of justice, and if X is

better than Y and Z we know that we want to pick X o An agreement on what the top is doesn’t tell us much about the ordering of things below the top o Comparing all elements gives us much more info about what ppl think about them -- ranking all 5 rather

than just picking the top one gives us info about what would be better to choose btwn non-top options

SUNDHYA PAHUJA’S CRITICAL APPROACH Marked increase in growth of inequality both within and across nations over recent history

o Despite all the increased institutions, global organizations, and foreign aid, lack of improvement!! We have to think about the structure of international law itself as contributing to these injustices CLS

ideas if every exception to int’l justice is an aberration, how can we still have hope we will get to the “ideal”?o Are more institutions and more law actually helpful to address global poverty? o Since 1960 there has been a great expansion of these yet we do not see things getting better is a really

a perversion of international lawo Human rights used to be seen as needed to be sacrificed for development but this has changed

How does the structure of international law actually help encourage this injustice?o Development has become a proxy for the way we talk about material well-being and global inequality

Solution to global poverty is always "development" Development as an idea doesn’t just mean improvement in QOL - specific way of viewing the world

that is both discourse and institutional machinery Two problems with our focus on development by the institutions of global institutions

1. Explanation about the causes of poverty that development provides Explanations for why countries are poor geographic, global, local/national, and historical Development discourse only considers present and local causes and thus concentrates

measures to change it by adjusting into internally the country into a “modern nation state” that is allowed free trade, ignoring the international/historical issues that restrict it

The structure of international law plays a large role here: localizes responsibility through focusing on nation state, no jurisdiction for calling political economic causes of poverty to account

Development is a global project but there is only ever national responsibility (ex the world bank has no jurisdiction – even if sees that poor countries are being hurt by trade they cannot change it, AND WORSE they continue to oblige countries to open their markets and encourage free trade

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“Triumph of hope over experience” produces effect where self-interest of the rich is equated with altruism

“International law and development work to vest responsibility downwards, not upwards into the international community”

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