Review of Lon Fuller’s "Eight Conditions of Law". Ronald Dworkin. Short writing

1.

PLAN FOR TODAY
• Review of Lon Fuller’s “Eight Conditions of Law”
• Ronald Dworkin
• Short writing

2.

FULLER’S 8 CONDITIONS OF LAW
(with Fuller’s names)
1. For a legal system to exist, there
must be RULES(“Generality”)
5. The rules must BE CONSISTENT
(“No contradictions”)
2. The rules must be PUBLIC
(“Promulgation”)
6. It must be POSSIBLE TO OBEY THE
RULES (“Not impossible”)
3. The rules must be PROSPECTIVE
7. The rules must NOT CHANGE TOO
OFTEN (“Constancy,” or stability)
(“Not retroactive”)
4. The rules must be CLEAR
(“Clarity”)
8. The rules must be IMPLEMENTED AS
WRITTEN (“Congruence”)

3.

REVIEW OF FULLER’S EIGHT CONDITIONS
Does everyone understand what Fuller means
when he says his eight points are
CONDITIONS
of law,
or, of the existence of a legal system?

4.

REVIEW OF FULLER’S EIGHT CONDITIONS
In presenting his eight conditions,
what idea does Fuller start from?

5.

REVIEW OF FULLER’S EIGHT CONDITIONS
In presenting his eight conditions,
what idea does Fuller start from?
The purpose of law.

6.

REVIEW OF FULLER’S EIGHT CONDITIONS
What does Fuller say is the purpose of law?

7.

REVIEW OF FULLER’S EIGHT CONDITIONS
What does Fuller say is the purpose of law?
To subject human conduct to the governance of rules.
(In other words, to guide human conduct.)

8.

REVIEW OF FULLER’S EIGHT CONDITIONS
How do Fuller’s conditions relate to
(what he says is)
the purpose of law?

9.

REVIEW OF FULLER’S EIGHT CONDITIONS
Fuller says:
To have law,
it’s not enough that a legislature act
(and say they are making a law).
To be law,
what a legislature does,
has to satisfy the eight conditions.
(Or, at least, not fail completely to satisfy any of them.)

10.

REVIEW OF FULLER’S EIGHT CONDITIONS
Fuller says:
To have a legal system,
you have to have rules.

11.

REVIEW OF FULLER’S EIGHT CONDITIONS
You can call something a rule.
But if it does not satisfy the eight conditions,
it does not function as a rule.
(It cannot guide people’s conduct.)
Let’s look again at the eight conditions…

12.

REVIEW: FULLER’S 8 CONDITIONS OF LAW
(with Fuller’s names)
1. For a legal system to exist, there must
be RULES (“Generality”)
5. The rules must BE CONSISTENT
(“No contradictions”)
2. The rules must be PUBLIC
(“Promulgation”)
6. The rules must be ABLE TO BE
OBEYED (“Not impossible”)
3. The rules must be PROSPECTIVE
7. The rules must NOT CHANGE TOO
OFTEN (“Constancy,” or stability)
(“Not retroactive”)
4. The rules must be CLEAR
(“Clarity”)
8. The rules must be IMPLEMENTED AS
WRITTEN (“Congruence”)

13.

QUESTIONS ABOUT FULLER’S EIGHT CONDITIONS?
1. For a legal system to exist, there
must be RULES (“Generality”)
5. The rules must BE CONSISTENT
(“No contradictions”)
2. The rules must be PUBLIC
(“Promulgation”)
6. The rules must be ABLE TO BE
OBEYED (“Not impossible”)
3. The rules must be PROSPECTIVE
7. The rules must NOT CHANGE TOO
OFTEN (“Constancy, ” or stability)
(“Not retroactive”)
4. The rules must be CLEAR
(“Clarity”)
8. The rules must be IMPLEMENTED AS
WRITTEN (“Congruence”)

14.

Another aspect of congruence
How to protect it: procedural safeguards, which include-The right to be heard,
to tell your side of the story,
in a public trial.
=-=-=-=-=-=
The right to be represented
by a lawyer.
=-=-=-=-=-=
The right to appeal to a higher
court, to review decisions in a
lower court.
=-=-=-=-=-=-=
Prohibition of torture (as a means of
getting evidence; obviously, torture is more
than a failure of congruence.)
=-=-=-=-=-=
(How do these protect congruence?)

15.

Another aspect of congruence
How to protect it: procedural safeguards, which include-The right to be heard,
to tell your side of the story,
in a public trial.
=-=-=-=-=-=
The right to be represented
by a lawyer.
=-=-=-=-=-=
The right to appeal to a higher
court, to review decisions in a
lower court.
=-=-=-=-=-=-=
Prohibition of torture (as a means of getting
evidence; obviously, torture is more than a failure
of congruence.)
=-=-=-=-=-=
(How do these protect congruence?)
By helping the legal system
make correct legal decisions,
according to the legal rules.

16.

Another SAFEGUARD of congruence:
Note, also, the constitutional provision
that serves as a safeguard on congruence:
The principle of the separation of powers.

17.

Another SAFEGUARD of congruence:
The separation of powers
serves to protect
the independence of the judiciary
from the legislative and the executive branches
of the government.

18.

Another SAFEGUARD of congruence:
Judicial independence makes it more likely
that when the legal system
arrests, prosecutes, or convicts someone—
the legal system “gets it right,”
—that is, according to the applicable legal rules—
without interference [ = вмешательство?]
from the legislative or executive branches.

19.

Thought question on congruence
Does congruence,
as a condition of law,
(or of the existence of a legal system)
remind you
of something that Hart argued
is a condition of the existence of a legal system?

20.

Thought question on congruence—hints:
• Congruence generally requires government officials to apply
the law as written…

21.

Thought question on congruence—hints:
• Congruence generally requires government officials to apply
the law as written…
• Because the law as written is the law…

22.

Thought question on congruence—hints:
• Congruence generally requires government officials to apply
the law as written…
• Because the law as written is the law…
• Applying the law as written shows an official commitment to
enforcing the law because it is the law…
• Any ideas?

23.

Thought question on congruence
The internal or normative attitude towards legal rules
of ”law workers”

24.

Thought question on congruence
It’s worth thinking about how
congruence
and
the internal or normative attitude of law workers
are similar,
and how they are different.

25.

ANY OTHER QUESTIONS ON FULLER’S 8 CONDITIONS OF LAW?
1. For a legal system to exist, there
must be legal RULES (“Generality”)
5. The rules must BE CONSISTENT
(“No contradictions”)
2. The rules must be PUBLIC
(“Promulgation”)
6. The rules must be ABLE TO BE
OBEYED (“Not impossible”)
3. The rules must be PROSPECTIVE
7. The rules must NOT CHANGE TOO
OFTEN (“Constancy,” or stability)
(“Not retroactive”)
4. The rules must be CLEAR
(“Clarity”)
8. The rules must be IMPLEMENTED AS
WRITTEN (“Congruence”)

26.

Now let’s turn to Ronald Dworkin…
• Ronald Myles Dworkin
(1931-2013)
• Born in the US
• Professor at Yale Law School,
Oxford (where he succeeded
Hart), and New York University
Law School.
• Famous for his criticism of
Hart and development of an
alternative

27.

Dworkin vs. Hart and Fuller
As we have seen,
Hart emphasized
the form and structure of law.

28.

Dworkin vs. Hart and Fuller
Fuller emphasized
the purpose
and
the necessary conditions
of law.

29.

Dworkin vs. Hart and Fuller
Dworkin emphasized:
the content and grounds of law.
Today we are just going to discuss his views about content.

30.

Dworkin vs. Hart and Fuller
Now, what theory of law have we discussed
that relates to the content of law?
It is a theory that judges law by its content.
Not by its form, structure, purpose or conditions.

31.

Dworkin vs. Hart and Fuller
Now, what theory of law have we discussed
that relates to the content of law?
It is a theory that judges law by its content.
Not by its form, structure, purpose or conditions.
Natural law theory.

32.

Dworkin vs. Hart and Fuller
Those of you who believe that
what law is (=what counts as law),
does depend, at least in part,
on its morality, or justice—
will find support for your view in Dworkin.

33.

Dworkin’s Key Concepts:
• Rules of law vs. principles of law (in the reading I uploaded last week)
• Policies
• Legal principles, even if not included in positive law, are part of law
• There is no rule of recognition for principles of law.

34.

To see Dworkin in context…
Hart said:
A theory of law
that limits law to orders or commands (primary rules)
is not good enough to explain what law is.
It causes us to miss
the important role in law, of rules (including secondary rules).

35.

To see Dworkin in context…
Now Dworkin came along and said,
Hart’s theory of law as rules
is not good enough to explain what law is,
because
Hart’s focus on rules
causes us to miss the important role in law
of standards that are not rules, namely…

36.

To see Dworkin in context…
Now Dworkin came along and said,
Hart’s theory of law as rules
is not good enough to account for law,
because Hart’s focus on rules
causes us to miss the important role in law
of standards that are not rules, namely…
principles

37.

Notice about the reading from Dworkin I uploaded last week…
…when Dworkin speaks of the role of principles in law,
he’s talking mainly about adjudication,
not legislation, or executive branch action.

38.

Dworkin on principles
What, according to Dworkin, is a legal principle?

39.

What, according to Dworkin, is a legal principle?
“a requirement
of justice
or fairness
or some other dimension [= aspect] of morality”
His example?

40.

What, according to Dworkin, is a legal principle?
“a requirement
of justice
or fairness
or some other dimension [= aspect] of morality”
His example?
“No man may profit by his own wrong.”

41.

What, according to Dworkin, is a legal principle?
“No one may profit by his own wrong,”
was, of course, one of grounds
for the decision in…

42.

What, according to Dworkin, is a legal principle?
“No one may profit by his own wrong,”
was, of course, one of grounds
for the decision in…
Elmer’s case (Riggs v. Palmer)

43.

What, according to Dworkin, is a legal principle?
Another example?

44.

What, according to Dworkin, is a legal principle?
Another example?
“No one shall be the judge in his or her own case.”
Why is this a principle?

45.

What, according to Dworkin, is a legal principle?
Another example?
“No one shall be the judge in his or her own case.”
Why is this a principle?
It is “a requirement of justice or fairness
or some other dimension [= aspect] of morality”

46.

Dworkin talks about another kind of standard
that is not a rule or a principle: a policy
What, according to Dworkin, is a policy?
A “standard that sets out a goal to be reached,
generally
an improvement in some
economic, political, or social feature
of the community”
Examples?

47.

Dworkin talks about another kind of standard
that is not a rule or a principle: a policy
Examples of “policies” (sets out economic, political or social goals)
• Attracting foreign investment
• Improving voting procedures
• Reducing air pollution

48.

Dworkin talks about another kind of standard
that is not a rule or a principle: a policy
Do you see,
from these definitions and examples,
the difference between a principle and a policy?

49.

The definitions again: Dworkin on principles vs. policies
PRINCIPLE: “a requirement of justice or fairness
or some other dimension [= aspect] of morality”
POLICY: “A standard that sets out a goal to be reached,
generally an improvement in some economic, political, or social
feature of the community”

50.

Dworkin talks about principles and policies…
…but he is mainly concerned with principles,
and
how principles differ from rules

51.

Difference between rules and principles:
How they work (says Dworkin in the uploaded reading)
• HOW A RULE WORKS:
• It either applies or
or it doesn’t.
Example?...

52.

A timely example of a rule:
Article 127.
The Constitution of the Republic of Uzbekistan shall be altered by law
adopted by a majority, not less than two thirds of the total number
accordingly of deputies of the Legislative Chamber and members of the
Senate of the Oliy Majlis of the Republic of Uzbekistan, or by referendum
of the Republic of Uzbekistan.

53.

A timely example of a rule:
Статья 127.
Изменения в Конституцию Республики Узбекистан вносятся
законом, принятым большинством, не менее чем двумя
третями от общего числа соответственно депутатов
Законодательной палаты и членов Сената Олий Мажлиса
Республики Узбекистан, или референдумом Республики
Узбекистан.

54.

A timely example of a rule:
Article 127.
The Constitution of the Republic of Uzbekistan shall be altered by law
adopted by a majority, not less than two thirds of the total number
accordingly of deputies of the Legislative Chamber and members of the
Senate of the Oliy Majlis of the Republic of Uzbekistan, or by referendum
of the Republic of Uzbekistan.
Do you see why the application of this rule is “all or nothing?
Which words tell you?

55.

A timely example of a rule:
Article 127.
The Constitution of the Republic of Uzbekistan shall be altered by law
adopted by a majority, not less than two thirds of the total number
accordingly of deputies of the Legislative Chamber and members of the
Senate of the Oliy Majlis of the Republic of Uzbekistan, or by referendum
of the Republic of Uzbekistan.
Do you see why the application of this rule is “all or nothing?
Which words tell you?

56.

IN CONTRAST, how a principle works:
A principle does not simply apply, or not:
it states a reason
that argues in favor or one side of a case
or the other.

57.

In contrast, how a principle works:
If a legal principle like
"No man may profit from his own wrong”
is relevant to a case, [=might make a difference to the case],
judges must consider it.

58.

In contrast, how a principle works:
The principle is a reason
that argues in one direction or the other.
But it does not require
a particular decision in the case.

59.

Test your understanding:
How do you tell
if a standard
is a rule or a principle?

60.

Test your understanding:
How do you tell if a legal standard is a rule or a principle?
You would think:
The language of the standard tells you.
Let’s look at some…

61.

Rule or principle?
Constitution, Article 77
The Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan
shall consist of one hundred fifty deputies elected according to law…

62.

Rule or principle?
Статья 77
Законодательная палата Олий Мажлиса Республики
Узбекистан состоит из ста пятидесяти депутатов, избираемых
в соответствии с законом.

63.

Rule or principle?
Constitution, Article 77
The Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan
shall consist of one hundred fifty deputies elected according to law…
Which words tell you?

64.

Rule or principle?
Constitution, Article 77
The Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan
shall consist of one hundred fifty deputies elected according to law…
Which words tell you?

65.

Rule or principle?
Article 117.
…The citizens of the Republic of Uzbekistan who have reached eighteen
years of age have the right to elect. [=vote?]

66.

Rule or principle?
Статья 117.
..Право избирать имеют граждане Республики Узбекистан,
достигшие восемнадцати лет.

67.

Rule or principle?
Article 117.
…The citizens of the Republic of Uzbekistan who have reached eighteen
years of age have the right to elect. [=vote?]
Which words tell you?

68.

Rule or principle?
Article 117.
…The citizens of the Republic of Uzbekistan who have reached eighteen
years of age have the right to elect. [=vote?]
Which words tell you?

69.

Rule or principle?
Constitution, Article 25.
Everyone shall have the right to freedom and inviolability of the person.

70.

Rule or principle?
Статья 25.
Каждый имеет право на свободу и личную
неприкосновенность.

71.

Rule or principle?
Constitution, Article 25.
Everyone shall have the right to freedom and inviolability of the person.
Which words tell you?

72.

Rule or principle?
Constitution, Article 25.
Everyone shall have the right to freedom and inviolability of the person.
Which words tell you?

73.

BUT: Dworkin acknowledges:
“In many cases
the distinction
[whether a given standard
is a rule or a principle]
is difficult to make…”

74.

Rule or principle?
Constitution, Article 29.
Everyone shall be guaranteed freedom of thought, speech and
convictions. Everyone shall have the right to seek, obtain and
disseminate any information except that which is directed against the
existing constitutional system and some other instances specified by
law.
Freedom of opinions and their expression may be restricted by law if
any state or other secret is involved.

75.

Rule or principle?
Статья 29.
Каждый имеет право на свободу мысли, слова и убеждений.
Каждый имеет право искать, получать и распространять
любую информацию, за исключением направленной против
существующего конституционного строя и других
ограничений, предусмотренных законом.
Свобода мнений и их выражения может быть ограничена
законом по мотивам государственной или иной тайны.

76.

Rule or principle?
Constitution, Article 29.
Everyone shall be guaranteed freedom of thought, speech and
convictions. Everyone shall have the right to seek, obtain and
disseminate any information except that which is directed against the
existing constitutional system and some other instances specified by
law.
Freedom of opinions and their expression may be restricted by law if
any state or other secret is involved.
Which words tell you?

77.

Rule or principle? Why?
Constitution, Article 29.
Everyone shall be guaranteed freedom of thought, speech and
convictions. Everyone shall have the right to seek, obtain and
disseminate any information except that which is directed against the
existing constitutional system and some other instances specified by
law.
Freedom of opinions and their expression may be restricted by law if
any state or other secret is involved.
Which words tell you?

78.

Again, Dworkin says:
a principle states a reason that argues in one direction or another.
When Dworkin identifies a standard as a legal principle,
he means…
…a judge must take it into account,
if it is relevant [=might make a difference to the case]…
as a consideration or factor (a reason)
in favor of on side of the case or the other

79.

When there is a principle on one side of a case…
…there may be another principle on the other side—
for example, a principle limiting punishment
to what the legislature has stated

80.

Cases presenting conflicting principles: examples
We have seen an example of conflicting principles
(Elmer’s case):
“No one may profit from his or her own wrong,”
versus
a principle
limiting punishment to what the legislature has stated.

81.

Another example
of conflicting principles or policies…
A 16-year old boy
goes to a movie theater.
He is not interested in the film,
so he decides to play a prank or a trick,
what we call a “practical joke,”
on the audience.

82.

Another example of conflicting principles or policies…
Although there is no fire,
just to see how the people will react,
he shouts, “FIRE, FIRE, RUN FOR YOUR LIVES!”
This causes a panic as people rush out,
and some are injured.

83.

“FIRE, FIRE”
The boy is prosecuted
for “disturbing the peace in a public place”

84.

“FIRE, FIRE”
His defense?
Constitution of Uzbekistan, Article 29:
“Everyone shall be guaranteed
freedom of thought, speech and convictions.”
Is this a good defense?...

85.

Did you consider Article 20?
Rule or principle?
Constitution, Article 20:
The exercising of rights and freedoms by a citizen must not encroach
[=intrude, impose oneself] on the lawful interests, rights and freedoms
of other persons, the state and society.

86.

Rule or principle?
Статья 20.
Осуществление прав и свобод гражданином не должно
нарушать законных интересов, прав и свобод других лиц,
государства и общества.

87.

Rule or principle? Why?
Constitution, Article 20:
The exercising of rights and freedoms by a citizen must not encroach
[=intrude, impose oneself] on the lawful interests, rights and freedoms
of other persons, the state and society.
Which words tell you?

88.

Rule or principle? Why?
Constitution, Article 20:
The exercising of rights and freedoms by a citizen must not encroach
[=intrude, impose oneself] on the lawful interests, rights and freedoms
of other persons, the state and society.
Which words tell you?

89.

An American view…
“The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic.”
--SCHENCK v. UNITED STATES, 249 U.S. 47
(1919) (Justice Oliver Wendell Holmes, Jr.)

90.

THE POINT:
Principles have an aspect Dworkin calls importance or “weight”:
When principles conflict, a
judge has to weigh them, and
balance them against each
other.
Who is this?

91.

The point:
principles have an aspect Dworkin calls importance or “weight”:
• When principles conflict, a
judge has to weigh them,
and balance them against
each other.
• Who is this?
“Lady Justice,” a symbol of
the judicial system. See “Lady
Justice,” Wikipedia.

92.

The point:
principles have an aspect Dworkin calls importance or “weight”:
Why is she blindfolded?
“The blindfold was originally a
satirical [= mocking, ridiculing]
addition intended to show
justice as blind to the injustice
carried on before her, …

93.

The point:
principles have an aspect Dworkin calls importance or “weight”:
Why is she blindfolded?
…but it has been reinterpreted
over time and is now understood
to represent impartiality, the
ideal that justice should be
applied without regard to wealth,
power, or other status.”
“Lady Justice,” Wikipedia.

94.

Balancing one principle against another…
This balancing cannot be an exact measurement.
The judgment that a particular principle or policy
is more important than another
will often be a controversial one.
People will often disagree about it.
(See Elmer’s case.)

95.

Short writing
• According to Dworkin, from the uploaded reading and today’s discussion:
• What are legal principles? (Give at least one example of a legal
principle, according to Dworkin.)
• How are legal princples different from legal rules?
• You have many moral principles in your Constitution. They are part of
your positive law.
• Give just one example of how the application of the moral
principles in your Constitution could improve your society.

96.

END OF LESSON