Can we separate a descriptive understanding of law from a normative understanding?

Descriptive - statements of facts Normative - prescribing, value judgments and societal norms What, if anything, is really wrong with the 'plain fact view' of law (i.e., do you agree with Dworkin?)? Can law exist without sanction or threat? Freeman Preface and Chapter 1 NATURE OF JURISPRUDENCE What is Jurisprudence Ideology of judges are implicit. Phrased by Holmes as inarticulate major premises. Theories such as natural law and utilitarianism seen in traditional theories in jurisprudence. Law reflects ideologies of its place and time. There is a close relationship of law to social structures, so it brings prominence to the ideological context of legal theory. Relevance of Jurisprudence Law was previously taught under an apprenticeship system. Knowledge of law was picked up in the course of legal practice without any systematic instruction. Prof. Kahn-Freund: any academic discipline must instil a capacity for critical thought. Rules and principles of the law and their meaning and effects in society. Interdisciplinary. Involves the study of general theoretical questions about the nature of laws and legal systems. About the relationship of law to justice and morality and about the social nature of law. Use philosophical and sociological theories and findings in their application to law. Question assumptions to gain better understanding of nature and working of law. In Oppenheimer v Cattermole, human rights was used as justification to disregard a supposed law. Obligation to obey laws? Absolute or qualified? Qualified in what ways? In Grundnorm cases, notably Madzimbamuto v Lardner Burke, looks at validity, effectiveness of legal system, enforcement, authority, attenuation of consent.

Third question relates to justification. What happens when run out of rules from precendent or statute? How non-rules become law? Is it legitimate to invoke teleological considerations, goals, policies? Or confine to deontology. Is there a right answer and how is that to be found embedded in the law? Are there principles like human rights, democracy and the rule of law embedded in the constitution? Are there limits to what parliament can do? In Jackson and Others v. Attorney General, proposition that courts might be able to strike down an Act of parliament as incompatible with fundamental values. Dworkin: the principles of law provide the best constructive interpretation of the political structure and legal doctrine of the community, then perhaps can accept that sovereignty of Parliament not absolute. Acquiring Social Knowledge Sources of knowledge in legal sphere. Compared with natural science or social science? Is objective knowledge possible or distorted by values and biases? in 19th Century, was able to have empirical knowledge by similar methods of natural sciences. John Stuart Mill and his theory: scientific laws of society. Auguste Comtes Cours de Philosophie Positive. Differing natural science explanation: empiricist (relies on induction: observe, hypothesis, inference, testing, explanatory theory. Rejects value judgements. Could result in scientific laws of complete generality and uniformity. (this view rejected) Natural science no mechanistic: no absolute rigid laws, rather, statistical regularities; element of indeterminacy, myth of determinism destroyed by modern physics; verification not always possible. Karl Poppers falsification, all scientific theories tentative and waiting to be refuted. The more tests a hypo survives, the stronger it is; natural sciences not value free, Kuhn shows community of scientists plus govt and industry support where a system of classification is valued. Just because social sciences involve a more complex subject matter not necessarily mean that cannot have no unity with scientific methods.

2 problems for social scientist: subject matter different from natural sciences. Understanding the natural world, the understander imposes a framework. Understanding a social world is different? The social scientist cannot experience the experience of another person. A persons only sees structured things when observing, as the meaning is part history and structure. Many things that are strange are also obscure to observation. The testers and thinkers are human. Reduce many things into inconsequentiality and triviality. The social scientist must transcend common sense to discern working patterns and relationships between actors. He has to concentrate on what society trivialised. Must elicit meanings which may be implicit, disguised, confused. Theorist must distance himself and neutralise his pre-scientific understandings, concepts and values. He has to be an alien. Normative Character of Law Law are rules or norms which prescribe a course of conduct and indicate what should happen in default. Human laws are not statements of fact. The sanction, is not connected with the rule or breach, it is indicative of what the rule prescribes, as the consequence of noncompliance. Normative stuff. Normative laws must be distinguised from physical laws (causual connenction). Difficult to apply True/False to normative statements. ought rather than is. Does not necessarily imply moral obligation, only relates to duty of compliances with rule on pain of suffering the prescribed penalty. Ought and Is Wittengenstein and his language theories. Connection between language and the imperative to understand the logic of legal rules. A statement that something ought to be done prescribes a course of conduct based on the implication that reasons exist for so acting. Reasons can be judged. A rule of law does not give reaons for compliance, it is derived from a valid authority. David Hume: should not rely on things as they are as reflecting things they should be Challenges theories with normative notions on the law. Form (or structure) and Consent

? Philosophy of Law Science is concerned with questions of fact, philosophy is concerned with questions of structure. In anglo-saxon world, on structure of logic and languare rather than on some ultimate metaphysical reality. Study of positive law. The need for comprehensive jurisprudence Law as a system of norms and as a form of social control based on certain patterns of human behavior, are equally legitimate fields of study and inquiry. RONALDS DWORKINs LAWS EMPIRE Chapter 1 What is Law What is law? It matters how judges judge cases, and judgements are made unpredictably and with variance. An action in law has a moral dimension and some form of public injustice. If a judgement turns out unfair, then the community has inflicted a moral injury on one of its members. Courts hold alot of power. Disagreement about Law It matters what judges think the law is, and when they disagree, it matters what kind of disagreements they have. Lawsuits raise 3 issues, issues of fact, issues of law and twinned issues of political morality and fidelity. What is the disagreement in issues of law about? There are the propositions of law where statement and claims allows or prohibits people to entitlements. Dworkin mixes up true with is? Lawyers and judges can disagree on whether a particular law (rule) exists/true (empirical disagreement) or agree on that but disagree on how to apply those propositions (theoretical disagreement). How to see which empirical argument is better? How to see which theoretical argument is better? When judges make new statement of law, they present them as improved statements of what the law already is, even if it was not recognised previously, or has even been denied. Dworkin use the word

discover. Hmm. The plain-fact view What is theoretical disagreement? Plain fact view: All lawyers and judges actually agree on the grounds of law. The law is only a matter of what legal institutions, like legislatures and city councils and courts have decided in the past. For both conservatives and progressives, law is a matter of plain fact. What should judges do in the absence of law? Fill the spirit of surrounding law or satisfy the majority opinion should it differ. Or be adventurous and make new law that is just. There are arguments that there is no fact of law, that judgments are incomplete, ambiguous and incoherent/inconsistence. Theoretical disagreements merely disguised politics? (My thoughts: Theoretical disagreements arise from ambiguity in judgments? Surely judgements were not meant to be ambiguous? Maybe the problem is with the legal structure being unable to cope with the change in the way human beings can interact with one another.) Its all subjective, each judges opinion is different. when when they finally decide, they choose the better one. (Majority). A Threshold Objection Actors within the legal system play by certain rules and forms arguments with prepositions. It is true the arguments made we can observe the nature of law. External perspective is asking why certain patterns of legal argument develop in certain periods or circumstances. Internal perspective is from the point of view of those who form arguments. Asks what role does history and economics (periods and circumstance) play in the formation of those arguments, not about those theories. The Real World How plain-fact thesis distorts legal practice. Elmers Case Will murdered inherit.

Statute can refer to the physical written law or to the enactment of the law. There was disagreement on how to construct the real statute in special circumstances. (why call it special?) Earl: Statute should not have consequence legislators did not have in mind, and would have rejected should they have contemplated it. Earl: Statutes should be constructed in general principles of law. 1st assumption is that legislators have a general and diffuse intention to respect traditional principles of justice unless they clearly indicate the contrary. 2nd, since a statute forms a part of a larger system of law, it should be constructed coherently. The Snail Darter case Snail darter, 100million dollars project to build dam. CJ Warren Burger: when text is clear, the court has no right to refuse to apply it just because it believe the results silly. Agreed that congressional intention was relevant but did not agree with the way it was relevant, does not believe in speculation. Powell says that courts should only accept an absurd result only if congress intended it. Judges disagreed on how the law should be constructed and applied. McLoughlin Accident, emotional injury at hospital - held not foreseeable, then held reasonably foreseeable. Doctrine of stare decisis. Must follow past decisions. Mcloughlin was distinguished on time. in higher court. But higher court refused appeal on floodgates grounds. Yet in higer court HL, they ordered new trial. Policy reasons not adequate to justify. *courts should be able to distinguish genuine and fraudulent claims. Other HL lords say that distinguish only on moral principles. (L Scarman: cannot use social utility (incurance) to deny someones claim as a legal argument.) Brown Plessy v Ferguson held the separate but equal was ok. But later, due to blacks dying in war and social change, ruling in Brown was in favour of black plaintiffs. The judgment did not reject Plessy, the design of the remedy the opinion rewarded the plaintiffs.

Arguements on the fourteenth amendment were on its constitutional grounds, not on morality or repair. Semantic Theories of Law Propositions and Grounds of Law Dworkin says theoretical disagreement is illusory and better understood as argument not about what the law is but what the law should be. Because of the word law, many lawyers and judges have to use disagreement over the grounds of law as a pretense because they are expected to do so. Philosophy of law must elucidate the criteria lawyers use in formulating their arguments. Linguistic criteria oo. Legal Positivism Semantic theories suppose that lawyers and judges use mainly the same criteria in deciding when propositions of law are true or false, they suppose that lawyers actually agree about the grounds of law. These positivist theories support the plain-fact view of law, that genuine disagreement about what the law is must be empirical disagreement about the history of legal institutions. Positivist theories disagree on which historical facts are crucial. John Austin: A proposition of law is true within a particular political society if it correctly reports that past command of some person or group occupying the position of sovereign in that society. He defined a sovereign as some person or group whose commands are habitually obeyed and who is not in the habit of obeying anyone else. Basically, law is a matter of historical decisions by people in positions of political power. H.L.A. Hart: Rejected Austins legal authority as brute fact. He said that true grounds of law lie in the acceptance by the community as a whole of a fundamental master rule (rule of recognition) that assigns to particular people or groups the authority to make law. Propositions are more fundamentally in virtue of social conventions that represent the communitys acceptance of a scheme or rules empowering such people or groups to create valid law.

Is there a difference between Austins and Harts theories? Is popularity a difference? Other Semantic Theories School of natural law: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. The most extreme theory of this kind insists that law and justice are identical, so that no unjust proposition of law can be true. Morality is sometimes relevant to the truth of preposition of law, where precedents are indecisive, a more morally superior interpretation is favoured. School of legal realism: they argue that the linguistic rules lawyers follow make propositions of law instumental and predictive. The exact meaning of a proposition of law depends on context. Works in a way that allows lawyers to predict what possible judgments judges will give. Some say law is just a compilation of predictions. Defending Positivism Theoretical disagreements are misleading. The disagreement in discussed cases were a disguised argument about what the law should be. Some positivist think that judges pretned to disagree about what the law is because the public expects them to follow law that is already there. Dworkin says that such a view is unpersuasive because this thinking is not entrenched in our popular culture. Why should the profession fear to correct their error in the interests of a more honest judicial practice? Many of their arguments are inappropriate to the repair or improvement of the law, and instead make sense only as arguments about what judges must do in virtue of their responsibility to enforce the law as it is. A more sophisticated defence for positivism concedes that lawyers and judges thought they were disagreeing about the law but argues that for a somewhat different reason this self-description should not be taken at face value. Distinguishes the standard/core usage of the word law and borderline/penumbral uses of that word. (linguistic problem difference in understanding of what law is results in the disagreement.) Cross fingers defense: well meaning liars Borderline case defense : simpletons

The Real Argument for Semantic Theories If two lawyers are actually following different rules in using the word law, using different factual criteria to decide when a proposition of law is true or false, then each must mean something different from the other when he says what the law is. So when judges argue, they are really only arguing past each other. THE CONCEPT OF LAW H.L.A. Hart: Preface Aim to further understanding of law, coercion and morality as different but related social phenomena. Persistent Questions Question What is law? 1. International law lacks legislature. 2. Three Recurrent Issues The fact that law exists means that certain kinds of human conduct are no longer optional, but in some sense obligatory. 1st problem: Obligated not by physical force, but by threats. 2ns issue: Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. There is an assimilation of morality and law. 3rd Issue: What are rules? what does it mean to say that a rule exists? Do courts really apply rules or merely pretend to do so? Theres a confluence of behavior and rules. A social thingy? A judge in punishing takes the rule for a guide and the breach of the rule as the reason and justification for punishing the offender. Hart talks about something external that guides the judge and us. Definition How does law differ from and how is it related to orders backed by threats?

How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules? LESSON Validity of law: is law valid if it doesnt accord to morality. Does it need to be consistent/connected with morality. Are we happy to accept it without a connection to morality. Sources of Natural Law: Divine, Natural World, Law our reason would lead us to accept Hobbes and rights: Benthem: only legal rights. consider human rights to be nonsense. legal rights come because of agreement not because of nature. Are human rights a result of advanced civilisation? Humanity feel necessary to declare human rights. Rationalisation + Empathy This one tradition looks for knowledge of the law looks for justification that lies outside of it, that is something natural. Used to be the tradition, because believed in a deity. Believed in a natural order. Characterise the idea is more than just what the text says. Reasons. Maybe because we live in a natural world, theres a supreme being. Legal Positivism: Different varieties and understanding. Hart as major positivist thinker. Legal validity not dependent on morality. He describes it as descriptive sociology. A descriptive process, dont have to be evaluative, does not matter if we like it or not. Trying to be nonmetaphysical about it. Sources of law: social. Law can generate obligations in behavior, thats why it is important? (worthy of resources) Hart wants to say is that there are 3 ways to see law: threats, moral obligation, rules.

Positivist common: law is posited by everyone, rather than resting on something that is just there. Is it too impoverished an understanding of law? We want law to be good. Dworkin: Non-positivist: Dworkinian Dworkin sees a moral dimension to all issues of law, and certainly to issues of adjudication. His focus is law through adjudication. Issues of fact, issues of law and issues of fidelity. When you say what the law is or what the law says, you are talking about the grounds of law. That is the basis to which you find the evidence of law. Theres propositions of law which also counts as law. We can disagree empirically about the grounds of law. We can also disagree theoretically. He thinks we need a better theory of law. We dont disagree because we disagree about plain facts, at the heart of the disagreements are considerations that have a moral considerations (results?). When we debate about law, we engage principles. Propositions of law are propositions of appropriate principles that we should apply to facts at hand. Some principles can have a moral dimension. Law is an interpretative exercise. A theory of law or theory of judging? Is it the same? Does he help us explain the law outside adjudication? Critical Legal Studies - social effects and presumptions made Challenge: sometimes it seems like we are talking past each other. (i think they should address the differences)