Philosophy of Law 510

Thursday, January 17, 2013

2 parts of the course Race, justice, and rights Responsibility and punishment

Race, Rights, and Justice Features 3 Parts Interpreting constitutional rights Justice Companion volume to Responsibility and Punishment

Interpreting Constitutional Rights Scalia Bork Cardozo Hart Dworkin Constitutional coherentism

Foundations of International Law Kant Hart

Global Justice Rights Individual rights Collective rights Rawls Cosmopolitan liberal critique of Rawls In defense of Rawlsian global justice

Example of collective human rights: Humanitarian Intervention in Colombia Walzer on humanitarian intervention Rawls on the duty of assistance

Other Features Integrates the problem of racism into the entire discussion of justice and rights, while critical race theorists mostly eschew rights as harmful to all but those in power Employs a wide range of scholarship from philosophy of law to legal theory Uses mainstream analytical philosophy to argue for conclusions many of which are acceptable to critical race theory which most often rejects much of mainstream analytical jurisprudence.

Legal Theory Elements of a general theory of law. Explores NATURE of law: What is law? FUNCTION of law: to claim entitlement to confer rights on people (and things) Bootstrapping problem: How can duties and rights come about by the say-so of a person or an institution like the law? (Raz between authority and interpretation)

Types of Legal Theories Global: Applies to law regardless of region Local: Relativized to a particular legal context or region In either case, a legal theory identifies and explains the concepts involved in legal actions, and explains the nature of law given that legal actions have that character. (RAZ BAI, 2)

Epistemological Issues While it is true that a complete analysis of the nature of law is not likely, it is also not impossible Just because the concept of law is incomplete does not imply that it is not meaningful and useful.

Analysis of Law A) Setting forth conditions of a complete understanding of law, including its essential features B) Setting forth conditions for a minimal understanding of law, essential or nonessential, necessary but not sufficient C) Setting forth conditions for the minimal understanding of law Revised from Raz, Each set of conditions admits of degrees, implying that the understanding of law is a matter of degree.

Defining Law If a complete analysis of law is unlikely, and if it is not impossible, perhaps what we can hope for is an analysis of law that best describes most systems of law though perhaps not all of them, a kind of family resemblance idea of a legal system. Wittgenstein on family resemblance

What is Law? Austin: A law is part of a legal system iff it was enacted directly or indirectly by the sovereign of that system Kelsen: A law is a part of a legal system iff it is authorized by the basic norm of the system H.L.A. Hart: A law is part of a legal system iff it ought to be recognized according to the rule of recognition of the system. These are positivistic theories of law: Natural law theories will be covered shortly. Each view provides a very different idea of the nature of law and legal authority.

Harts Legal Theory (Concept of Law) Rule of recognition identifies primary rules of law and resolves conflicts between other rules under it. It says what counts as a valid law. Primary Rules: Rules identified by the rules of recognition. They are rules of conduct and say what you can and cannot do and what penalties will attach to this or that behavior. EX: 1st amendment right to free expression. Secondary Rules: Rules that explain how primary rules function in the system mof law. EX: Const rules conferring legis. Powers on congress No one rule can conflict with a superior one o OBJS: Non reason to think that there can be only one rule of recognition. And that it cannot be open to change (RAZ the authority of law).

Unity of a Legal System (RAZ) Material Unity: depends on the contents of its laws and how they are applied Formal Unity: Principles and structure of the system While most philosophers of law have concerned themselves only or mostly with formal unity, we shall concern ourselves with both formal and material unity.

Analytical Jurisprudence 3 main problem areas Judicial process and judicial reasoning (problem of interpretation of law) Legal concepts like rights, duties, responsibility, punishment, etc. How legal systems differ from and compare to other normative systems RAZ AL 103

Problem of Legal Identity Relation between the existence of law and its efficacy Distinction between making new law and applying an existing one Relation of law to the state RAZ AL 85

Chapter 1 What is Law? The product of many acts of law-making usually over long periods of time, not always enacted coherently and by various institutional bodies somewhat aware of one another, often pursuing divergent ends (RAZ 5) Lesson for law: Periodically check the law for ones that need to be repealed! This helps to keep the morally in tact

Problems of Legal Interpretation Law can vary from country to country Law can vary from period to period within a country Basics of law can vary from country to country Can a theory of interp. Span these diefferences RAZ BAI

Legal Pragmatism: An Excursion in Veriphobia Veriphobia: fear of the truth Post-modernists, pre-structuralists, deconstructionists, critical legal studies, critical race studies, and other anti-theorists (Fish; Posner) Denies possibility of objective truth, legal, or moral Law oppresses those under it as it coerces them to obey a set of rules assumed to be just or right or true Against theory because theory seeks to delude us into falsehoods masquerading as truths. Based on a language game metaphysic that subjectivizes all truth talk to mere expressions of feelings. o They say its true that there is no truth Thus law should be decided on the basis of what works for this or that party. Truth has nothing to do with correct legal decision-making.