INTRODUCTION

TO LAW 2012-2013 ATTY. SEDFREY CANDELARIA

DWORKINS INTERPRETATIVE o (2) Allows crime to be effectively prosecuted while at
the same time protecting to a significant degree the
RULES AND PRINCIPLES: THE IDEA OF FIT right to privacy
Dworkin believes that legal interpretation requires the making
of moral judgments OLMSTEAD AND BEYOND
It doesnt mean positive laws are declared invalid if they are Case: Unwarranted wiretapping of a suspect
judged to be immoral, only that morality will exercise influence Ruling: SC did not consider the 4th amendment applicable
on how those rules are understood because it was not an intrusion of physical space
Morality is inextricably intertwined with positive law Argument: Right to privacy also entails ones protection from
LAW consists of the explicitly adopted rules plus the best informational invasion
moral principles that can be understood to lie behind those Other points:
rules. o However some people will understand the right of
o Includes more than rules that are explicitly adopted as privacy as extending beyond protection for physical
authoritative by the political community spaces and informational control arguing that it also
o Found in statutory codes, judicial decision and other protects from govt. intrusion with regard to certain
official documents kinds of personal choices.
o Rules are not simply a result of power politics but Dilemma: How can we decide which principle is to be used as
express the underlying philosophy of the government legitimate basis for legal decision-making?
Test of Fitness
o (1) Logical consistency of the underlying principle with THE ROLE OF MORALITY
most of the rules total consistency is not required Morality will help guide whether a narrow or broad concept of
o (2) An underlying principle must help justify or provide a the privacy principle should be used as basis for legal decision
rationale for the rules explain why the rules is good making.
to have In cases of disagreement over what is morally best, each person
(e.g. judge face with a controversy) must decide for him or
FITTING THE FOURTH AMENDMENT: PRIVACY herself.
The right of people to be secure in their persons, houses, Law has integrity by combining positive rules plus moral
papers and effects, against unreasonable searches and seizures principles, the law is raised above the level of sheer power into
by government moral domain.
o (1) Protection of privacy such that the government cant
do whatever it regards as useful in detecting and THE CHALLENGE OF SKEPTICISM
punishing criminal activity Skepticism over the law may result from moral disagreements
of persons which will then reverberate in the arena of legal
interpretation.

RACHELLE GUTIERREZ and ADRIAN TAN
INTRODUCTION TO LAW 2012-2013 ATTY. SEDFREY CANDELARIA

Appeal to morality ensures that there are no right answers to
legal cases because there are no right answers to moral LEGAL POSITIVISM: OVERVIEW
questions Reject traditional natural law idea that genuine law is
Dworkin argues however that disagreement does not by itself necessarily just law
entail the absence of a right answer. Reject the necessary link between positive law and morality
External Skepticism Holds there is nothing objective in the Point of positivism is that law does not need to meet any moral
world that can make a statement about our moral obligations test in order to possess validity or authority.
true of false
o Rooted in the empiricism i.e. nothing empirical in the AUSTINS THEORY OF LAW
world can make moral statements true or false LAW rules laid down by superiors to guide the actions of
o Dworkin fails to come to grips with the fact that there those under them (i.e. commands). Laws, as commands, impose
are many different, conflicting ways of conducting obligation
moral judgment There is no way to establish which Being under obligation means that a person is liable to have
mode is correct. undesirable consequences (sanctions) inflicted on him for acting
Internal Skepticism Principles may be insufficient to give the contrary to the command.
law an integrity that raises it out of the domain of mere power Certain rules are laid down by superiors in private organizations,
politics while others are enforced by general opinion (informal
o legal system is fundamentally unjust and oppressive standards).
o Holds that there is no consistent set of moral laws Positive Law consists of general commands laid down and
underlying our laws. Different legal rules and doctrines enforced by political rulers
reflect incompatible moral viewpoints o Sovereign is the supreme power in the society while it
does not obey any other earthly power
ASSESSING DWORKIN o Sovereign is defined solely in terms of power, not in
Unlike Aquinas version of natural law that holds that unjust terms of justice or morality
rules are invalid laws A positive law is not necessarily a just or good rule
Unlike Fullers version that holds that principles of legality are o What is the law? vs. What ought the law be?
by themselves sufficient to create a prima facie moral obligation No necessary connection between legal and moral obligation
to obey the legal system Law and Legal obligation are just power concepts with no
Dworkin agrees with Fuller that there is some moral reason to relation to moral ones
abide by the laws; for Dworkin, it is the integrity of the law NOT o To have legal obligation simply means that one is liable
principle of legality to undesirable consequences at the hands of the
ALTERNATIVES TO DWORKIN sovereign for acting contrary to its command
o Judge must rely not on personal judgments, but to Views traditional natural laws as:
judgments widely accepted in society

RACHELLE GUTIERREZ and ADRIAN TAN
INTRODUCTION TO LAW 2012-2013 ATTY. SEDFREY CANDELARIA

o Abuse of language to say that positive laws which Austins concept of obligation arising from fear of penal
contradict divine laws are invalid is to talk nonsense consequences makes the sovereign no different from a gunman
because pernicious laws are implemented all the time Being obliged to do something is different from being obligated
o Mischievous advocating unjust laws as void is to SOURCE OF OBLIGATION FOR HART (PRIMARY RULES)
preach anarchy o Explained in terms of the idea of a rule. A rule exists
Does not deny that moral there is a connection but moral when people:
obligations imposed by Gods commands must not be confused (1) Act a certain way
with the legal obligations imposed by the command of the (2) Regard deviations from the that way of acting as
political sovereign. something to be criticized (i.e. there is social pressured
Absence of global sovereign means at best rules of international to conform)
law are positive morality and imposes no legal obligation. All societies have obligations but not all have legal obligations
ASSESSING AUSTIN because not all have legal systems
Arguments he makes against natural law theory are Must have special over-&-above kind of rules that impose
unpersuasive as they stand especially to those who believe obligations
otherwise. PRIMARY AND SECONDARY RULES
Austins argument that natural law invites anarchy is Secondary Rules
questionable as it assumes that a theory about the nature of o Rule of Recognition a rule that singles out the rules
law should be judged (in part) by the practical consequences of that actually do impose obligations
having it adopted in a society. o Rules of Change specify how to change legally valid
Because of the difference of medieval (church-centered) and rules
modern (pluralist) society, traditional natural law approach o Rules of Adjudication empower certain persons to
would generate substantial disagreement and conflict. enforce the legal system
People must generally comply with legally valid primary rules
HARTS LAW AS PRIMARY AND SECONDARY RULES Govt. officials must perceive departure from primary and
TYPES OF LEGAL RULES secondary rules as criticizable, resulting from having an internal
Power-Conferring Rules Austins command theory fails to perspective.
account for other types of legal rules such as those that Harts conception of legally system as union of primary and
empower rather than restrict secondary rules makes it questionable whether international
o But such rules are also like commands as both types law constituted a genuine legal system.
alter the external world rather than describe it and
issue from the sovereign ASSESSING HART
Question whether Harts idea of obligation is essentially
LEGAL OBLIGATION: GOVT vs GUNMAN different from Austin.

RACHELLE GUTIERREZ and ADRIAN TAN
INTRODUCTION TO LAW 2012-2013 ATTY. SEDFREY CANDELARIA

o Harts extreme case scenario where people comply
solely out of fear is identical to Austins gunman
situation
Natural thinker would maintain that the only way to deviate
from Austin is to acknowledge the underlying morality of laws
Both Hart and Austin agree that positive law ultimately stems
from the exercise of power of some human agency and moral
considerations do not necessarily regulate and control that
agency
Hart and Austin differ over whether legal considerations
regulate and control the source of positive law
o Hart: positive law empowers and regulates how
individuals carry out the law
o Austin: sovereign creates the law and is above any and
all rules



SUMMARY: NATURAL VS POSITIVIST
Legal Obligation
Positivists: ideas of law and legal obligation should be explained
in terms of power, coercion, control and/or rules but not in
terms of moral right and wrong
Natural: affirmative answers, arguing that the ideas of power,
coercion, control and rules cannot adequately explain the
nature of legal obligation: moral right and wrong are essential
ingredients as well.

RACHELLE GUTIERREZ and ADRIAN TAN