LAW THEORY

1. LAW THEORY

2. A jury consists of twelve persons chosen to decide who has the better lawyer Robert Frost

3. Law theory • Natural law – Sokrates,J. Huizinga; Kant; E. Bodenheimer • Positivism – Austin, Hart • Pragmatism – Roscoe Pound, O. W. Holms, K. N. Llewellyn • Hermeneutics - Habermas • Dworkin law theory

5. Key features of positivism: • The law is a set of special rules • The law in any society is a network ofconventional social rules regulating the conduct of both private citizens and legal officials

6. Key features of positivism: • There exist an authoritative test for identifying all valid rules of law, called the rule of recognition which is definable entirely in terms of social facts about the actual behavior and attitudes of individuals, without any overt reference to moral criteria.

7. Key features of positivism: • Law and morals are therefore conceptually separate in the sense that legal validity is not necessarily connected to any particular moral requirements, only pedigree or the manner in which the law was adopted is important

8. Key features of positivism: • Judges have discretion to use more criteria to create law interstitially when a case cannot be decided by existing rules, they can reach beyond the law for some other sort of standards

9. Law according to Austin • Law is a set of legal rules developed by the sovereign who is able to force the abidance of them by sanction • The sovereign grants those who enforce the law discretion to make fresh orders when novel or troublesome cases are presented.

10. Objection to this model • How to define sovereign? • What is the distinction between law and the general orders of a gunman?

11. Law according to Hart’s theory • He distinguishes primary and secondary rules • Primary rules are those that grant rights or impose obligation upon members of the community • Secondary rules are those that stipulate how, and by whom such primary rules may be formed, recognized, modified or extinguished

12. Law according to Hart’s theory • A rule can never be binding just because some person with physical power wants to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks • The rules can be binding by acceptens of practice or by being enacted in conformity with some secondary rule that stipulates that rules so enacted shall be binding – only than we can say that law exist • Rule of recognition

13. Riggs v. Palmer • Fact of the case: • Mrs. Riggs and Mrs. Preston, sought to invalidate the will of their father Francis B. Palmer; testated on August 13, 1880. The defendant in the case was Elmer E. Palmer, grandson to the testator. The will gave small legacies to two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of the estate to the Elmer Palmer to be cared for by his mother, another daughter of the testator, Susan Palmer, until he became of legal age.

14. Riggs v. Palmer • Knowing that he was to be the recipient of his grandfathers large estate, Elmer, fearing that his grandfather might change the will, murdered his grandfather by poisoning. The plaintiffs argued that by allowing the will to be executed Elmer would be profiting from his crime. While a criminal law existed to punish Elmer for the murder, there was no statute under either probate or criminal law that invalidated his claim to the estate based on his role in the murder. • “no one shall profit from his own wrong”

15. Dworkin’s attack on positivism • In hard cases lawyers use of standards that do not function as rules but operate differently as principles, policies and other sorts of standards

16. Dworkin’s attack on positivism • Policy – is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community • Principle is a standard that is to be observed not because it will advance or secure an economic political or social situation deemend desirable but because it is a requirement of justice or fairness or some other dimension of morality – Riggs v Palmer

17. Dworkin’s attack on positivism • Principle are different from legal rules • Rules are applicable in an all or nothing fashion –chess game • Principles operate in different way –they have dimension of weight and importance • No man may profit from his own wrong v. policy of securing title or principle limiting punishment to what the legislature has stipulated

18. Dworkin’s attack on positivism – the role of principles in reaching particular decision of law • We should treat legal principles the way we treat legal rules and say that some principles are binding as law and must be taken into account by the judges and lawyers who make decision of legal obligation – than law include principles as well as rules

19. Dworkin’s attack on positivism • Not all of the community’s long standing customary moral obligations are enforced at law

20. Dworkin’s attack on positivism • Dworkin argues that no positivistic test of law such as Hart rule of recognition can be formulated to include such principle as legally valid.

21. Dworkin’s attack on positivism • since there is no veridical test for identifying all valid law in terms of positivistic features apart from moral criteria there is for Dworkin no conceptual separation as there is for Hart, between morality and legal validity. • In place of Hart’s rule of recognition, Dworkin proposes a coherence theory of legal truth according to which the correct decision in a case at law is determined as a function of two factors:

22. Dworkin’s attack on positivism • how well it fits into the most comprehensive consistent interpretation of the entire history of a legal system,

23. Dworkin’s attack on positivism • how convincingly it can be justified by principles of morality embedded both in the legal system and other political institutions

24. Dworkin’s attack on positivism • the preceding point leads to what may be referred to as the right answer thesis, that when the task of judicial decision making is construed as in was presented, there is at least in theory a uniquely correct answer, determined by already existing law to almost every question that arises in the complex legal systems of modern societies. Conceding that right answers are often difficult to fined in practice, Dworkin refers to the paradigmatic judge in his illustrations as Hercules.