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

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Lon Fuller, continued; Ronald Dworkin

Riggs v. Palmer (New York Court of Appeals, 1889)

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Fundamental legal principles

Legal positivism theory. Legal positivism theory

More on H.L.A. Hart. Different kinds of legal rules. Secondary rules, including the “rule of of recognition”

Dworkin on legal principles

1.

PLAN FOR TODAY
• More on Dworkin on legal principles
• They are part of the law
• No rule of recognition for them
• Review: ask your questions
• Review of Hart: ask your questions
• Midterm control
• It will be on Unit 1 of this
module
• Schedule
• Study and your questions
• Academic integrity
• “Vehicle in the Park”
(may not finish this today)
• Short writing

2.

Dworkin: Legal principles are part of the law
As we saw,
Hart separated the two questions
of the validity of a law,
and the existence of a legal system,
from…

3.

Dworkin: Legal principles are part of the law
…the value or morality of that law or legal system.
Dworkin responds:
The existence of a legal system and its value or morality
are NOT separate;
principles like “no man may profit from his wrong”
are not moral principles from outside the law
(as the Riggs dissent said)…

4.

Dworkin: Legal principles are part of the law
…but are part of the law (as the Riggs majority said).

5.

No rule of recognition for legal principles
According to Hart,
how do we know
which legal rules are valid?...

6.

Dworkin: no rule of recognition for legal principles
According to Hart,
how do we know
which legal rules are valid?
We look at the rule of recognition.
(remember Article 5)

7.

Dworkin: no rule of recognition for legal principles
But, says Dworkin, for principles, there is no rule of
recognition.
The recognition of legal principles
is based on
“a sense of appropriateness
developed in the profession and the public over time.”

8.

9.

Dworkin: no rule of recognition for legal principles
Our recognition of legal principles is based on “a sense of appropriateness developed in
the profession and the public over time.”
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
A “sense of appropriateness”--what does that mean?
In part it means…
(Common law) judges give legal principles as reasons in their opinions
(example, Elmer’s case).
Lawyers include them in their arguments to judges.
Professors teach them.

10.

Dworkin: no rule of recognition for legal principles
But does Dworkin’s view of principles apply
in your civil law system
whose constitution and codes
already include many principles? For example…

11.

Constitutional principles
Constitution, Article 13.
Democracy in the Republic of Uzbekistan shall be based on the
principles common to all mankind according to which the
ultimate value is a human being, his life, freedom, honour,
dignity and other inalienable rights.

12.

Constitutional principles
Статья 13.
Демократия в Республике Узбекистан базируется на
общечеловеческих принципах, согласно которым высшей
ценностью является человек, его жизнь, свобода, честь,
достоинство и другие неотъемлемые права.

13.

14.

15.

Constitutional principle
Constitution, Article 14.
The state shall function on the principles of social justice and legality in
the interests of well-being of the people and society.

16.

Constitutional principle
Статья 14.
Государство строит свою деятельность на принципах
социальной справедливости и законности в интересах
благосостояния человека и общества.

17.

Constitutional principle
Constitution, Article 14.
The state shall function on the principles of social justice and legality in
the interests of well-being of the people and society.
Which other words tell you?

18.

Constitutional principle
Constitution, Article 14.
The state shall function on the principles of social justice and legality in
the interests of the well-being* of the people and society.
Which other words tell you?
=-=-=-=-=-=-=
*Is ”well-being” about policy?

19.

Question about Dworkin for you,
as citizens and future lawyers of Uzbekistan:
So, is Dworkin right about YOUR system?...

20.

So, is Dworkin right about YOUR system?
A reminder of what he said:
“The origin of [Riggs-type] principles lies…
not in a particular decision of some legislature or court,
but in a sense of appropriateness [=rightness]
developed in the profession and the public over time…

21.

So, is Dworkin right about YOUR legal system?
…Their [=Riggs-type principles] continued power
depends upon this sense of appropriateness
being sustained [=this sense of appropriateness continuing].”

22.

YOUR legal system
Your principles don’t need to be justified by
a “sense of appropriateness.”
BECAUSE
Many moral principles
are already enacted as part of your positive law.

23.

But even if principles are part of (your) positive law, as we saw
above…
…we don’t simply apply them;
we weigh and balance them.

24.

How we work with both rules and principles:
The questions
--how we work with principles,
as well as,
how do we work with rules—
are the bridge
from the first unit of this module—”What is law?”
to our second unit, Legal Reasoning and Interpretation.

25.

Dworkin review: legal principles
But before we start Unit 2,
let’s review the main point from Dworkin
that we discussed so far:
the idea of a legal principle.

26.

Dworkin review: legal principles
Dworkin starts by distinguishing principles from rules.
But it turns out
that this distinction
is not as sharp
as he presents it at first.

27.

Dworkin review: legal principles
As Dworkin himself says:
“In many cases
the distinction
[whether a given standard
is a rule or a principle]
is difficult to make…”

28.

Dworkin review: legal principles
That
is
confusing.
(Like this slide is.)

29.

Dworkin review: legal principles
So:
what is Dworkin’s idea of a legal principle?
How we can understand it in a way that will not be confusing?
What is important to know about it?

30.

Dworkin review: legal principles
Dworkin’s view of legal principles is, in short:
[1] A legal principle is a standard
relating to justice, fairness or morality.
[2] A legal principle is sometimes enacted as positive law
(see your Constitution)
(but sometimes isn’t--see Elmer’s case, Riggs v. Palmer).

31.

Dworkin review: legal principles
[3] Not all moral principles are legal principles.
(Example of a moral principle, that isn’t a legal principle:
“People should get what they deserve.”)

32.

Dworkin review: legal principles
[4] But some moral principles have become legal principles,
even if they were not enacted by a legislature,
or included in a constitution,
because
(common law) judges used them,
over time,
to decide cases
(judges used principles as reasons for deciding cases).

33.

Dworkin review: legal principles
[5] In thinking about how to decide a case,
a (common law) judge should consider these legal principles,
as reasons for deciding a case one way or the other,
even though
a legal principle, by itself, does not always decide a case.
(Like rules often do—think of the law on voting age.)

34.

Dworkin review: legal principles
[6] But: a legal principle sometimes does decide a case,
(or, at least, plays a significant role in deciding a case )
See again, Elmer’s case, in which the principle was:
“No one should benefit from his or her own wrong.”

35.

Dworkin review: legal principles
Dworkin says:
The majority opinion in Riggs v. Palmer
illustrates (is an example of)
his view of
what legal principles are
and how they work.

36.

Dworkin review: legal principles
In contrast to Dworkin’s view,
is the view of the judges in the minority, the dissenting judges,
in Riggs v. Palmer.
They said:
moral principles are not part of the law
unless they are enacted as positive law.

37.

Dworkin review: legal principles
That is the view we called:
”The law is the law.”
Or, more exactly:
The law
is
the formally enacted law.

38.

Dworkin review: legal principles
The formal name for this theory of law is:
positivism,
which is the theory defended by Hart.

39.

Dworkin review: legal principles
QUESTIONS ABOUT DWORKIN ON PRINCIPLES?

40.

Hart review
Now let’s review some of the important points in Hart:
The following are the slides I told you to use
to organize your study for the midterm control.
Today I’m emphasizing the most important ideas, in red.

41.

Hart review: questions to check your understanding:
• How could the rule of recognition be “neither valid nor invalid”? Isn’t it a legal rule?
• If the rule of recognition is neither valid nor invalid, how do we know if it is in effect?
• When, according to Hart, can we say a legal system exists?
• Hart says that different groups of people in society show their acceptance of the legal system as a
whole, in different ways. Why shouldn’t everyone show their acceptance of the legal system in
the same way?
• How do ”officials” and “experts” (private lawyers) show their acceptance of the legal system?
• How, according to Hart, do ordinary citizens show their acceptance of the legal system? Do you
think that what Hart requires of ordinary citizens, is enough, for us to say that a legal system
exists?
• What, according to Hart, is a legally “healthy” society? (--Questions on these? Let me know.)

42.

Hart review: points to remember from Hart:
• Acting according to a social rule versus not acting according to a social rule
• External aspect of social rules
• Internal aspect of social rules
• Laws takes the form of rules
• A legal system is a combination of primary and secondary rules
• Different kinds of secondary rules
• The “rule of recognition” (≈enacted according to the applicable legal procedures)
• Legal validity (a valid law is recognized by the rule of recognition)
• Existence of a legal system (valid laws according to rule of recognition plus acceptance of
the rule of recognition and the legal system based on it, in the two ways Hart describes)

43.

Hart review
Here are three more review slides on Hart…

44.

From slides, lesson on 7 March
Summary of elements of internal aspect of rules
• People expect you—
• To observe the rule.
• You believe:
• Observing the rule is:
• The right thing to do
• Something you should
do…
• If you do not observe the rule,
other people--
• Will disapprove of you
• Might criticize you.
• Not observing the rule is:
• A good reason for other
people’s disapproval and
criticism
• The criticism would be
justified, or, legitimate.

45.

Elements of internal aspect of rules
Clarification: the normative attitude vs. its manifestations
• The internal aspect of rules is an attitude: how you see the rule, what you
believe about the behavior governed by the rule.
• You see the rule as a standard for behavior
• You believe that following the rule is the right thing to do
• You criticize yourself for violating the rule
• You take your own violation as a good reason for criticism by yourself or others.
• People expect you to follow the rule (what they expect is part of their internal
attitude toward the behavior governed by the rule)
• And, there are manifestations of (= behavior associated with) the attitude:
• People might say things critical of you for violation (that manifests their attitude)
• You say things like, “Following the rule is the right thing to do;” “Violating the rules is
the wrong thing to do.”

46.

Elements of internal aspect of rules
Clarification:
IN SUM:
• The internal aspect of rules is an attitude:
• How you see the rule, what you believe about the behavior governed by the rule.
• And, there are manifestations of (= behavior associated with) the attitude
• Though they are closely related, I did not clearly distinguish the attitude
and the manifestations (observable behavior)

47.

REVIEW
Any questions AT ALL on Hart, Fuller, or Dworkin?

48.

More on midterm: schedule
The plan is
to upload the midterm control to the TSUL platform
a week from today, 18 April,
before the lesson on that day.
During the lesson on 18 April
you will have a chance
to ask me questions
about the midterm control’s questions.

49.

More on midterm: study
The midterm control will be a take-home test.
It will be on Unit 1 of this module,
not on the standard module
that would have been taught by another TSUL teacher.

50.

More on midterm: study
The best thing to do
to study for the midterm
is to read over all the slides
from the beginning of the module.

51.

More on midterm: study
I would like to make an observation.
In end-of-lesson writing
I sometimes ask you to write about
what one of the thinkers we discussed, said.
In their responses,
some students don’t mention the thinkers.
They just give their own opinions.

52.

More on midterm: study
I do want to hear your opinions.
But I also want you to show me
what you learned in the module
about what the thinkers we discussed, said.

53.

More on midterm: study
This applies not only to end-of-lesson writing,
but also to the midterm control:
Do give me your own opinion,
but do not give me only your own opinion.
That is why I am telling you to review the slides,
if you have not done so already.
.

54.

More on midterm: study
See, after you review the slides,
if you have any questions
about the thinkers we discussed.

55.

More on midterm: study
Ask:
your group-mates,
Maksud,
or me,
in person,
or on Telegram (to help others who may have the same question).

56.

More on midterm: study
I won’t be available to answer questions on Telegram this week
between this evening, 11 April, and Thursday evening, 13 April;
and between Friday evening, 14 April, and Saturday evening, 15 April.
But if you send me questions during those times
I will respond after that.

57.

More on midterm: study
I will not be here for the next lesson,
this Thursday, 13 April.
Maksud will teach.
Next week I will be back to my regular schedule.

58.

More on midterm: Academic Integrity (=честность?)
You may look at the module materials, including the slides from the
lessons, while you are working on this midterm control.
You are not allowed to do any research outside the module material,
because:
o This midterm control is not a research paper: it is a test of what
you learned and understood from the uploaded readings and
exercises, and class discussions, in this module.
o I am interested in your own synthesis (синтез) of what you
learned from the module. I am not interested in your ability to
find material online.

59.

More on midterm: Academic Integrity
Your work on this midterm control must be yours alone. This means:
o Between the time the midterm control is uploaded to the
platform and the time you upload your answers, you are not
allowed to discuss the questions or your answers with any other
person, except that you may ask me questions about the
questions during the lesson on 18 April.
o You are not allowed to work together with any other person on
your answers.
o You are not allowed to present the work of any other student as
your own.
o You are not allowed to share your work with any other student
who will present your work as his or her own.