Jurisprudence - Nowlin - Spring 2011
Table of Contents
I. Introduction & Overview of the Three Schools ....................................................................................... 2
II. Legal Positivists (LPs) .................................................................................................................................... 4
A. LPs - Hart: Preface - What he’s going to do; & Ch. 1 - Why he is going to do it ........................................................ 4
B. LPs - Hart: Ch. 2 - builds up CT .................................................................................................................................................... 6
C. LPs - Hart: Ch. 3-4: Begins to break down CT ........................................................................................................................ 7
D. LPs - Hart: Ch. 5-6: Hart develops own LP theory ............................................................................................................ 11
E. LPs - Hart Ch. 7: Responds to Legal Skeptics ...................................................................................................................... 16
F. LPs - Hart Ch. 8-9: Takes on Natural Law theory & relationship of law & morality ........................................... 19
G. LPs - Hart: Ch. 10: International Law ..................................................................................................................................... 25
II. Natural Law (NL) ............................................................................................................................................ 26
A. NL - Natural Law Handout / Introduction .......................................................................................................... 26
B. NL - Finnis: Natural Law & Natural Rights.......................................................................................................... 27
1. Four Types of Injustice(how laws/acts can be unjust) ............................................................................................. 27
2. Four Forms of Obligations ..................................................................................................................................................... 27
3. Authority of Rulers.................................................................................................................................................................... 29
4. Deduction of PL from NL ........................................................................................................................................................ 29
5. Poles of Debate / Features of a Legal System ................................................................................................................ 29
C. NL - Declaration of Independence; Birmingham Jail ...................................................................................... 31
1. Declaration of Independence ................................................................................................................................................ 31
2. Letter From Birmingham Jail ................................................................................................................................................ 31
D. NL - Finnis: The Incoherence of Legal Positivism............................................................................................ 32
E. NL - Fuller ....................................................................................................................................................................... 34
III. NL & Adjudication (NL & A) ....................................................................................................................... 39
A. NL & A - Hart; NL Handout; Finnis . . . Fuller on Adjudication; Dworkin (Patterson)........................................ 39
B. NL & A - Hart & Dworkin ............................................................................................................................................................. 43
IV. Legal Skeptics (LS)........................................................................................................................................ 45
A. LS - Holmes: Path of the Law ..................................................................................................................................................... 45
B. LS - Legal Realists - Llewellyn: Realistic Jurisprudence, the Next Step (Patterson & Handouts) ................. 48
C. LS - Legal Realists - Frank: Law & the Modern Mind ....................................................................................................... 51
D. LS - Legal Pragmatist - Posner: Ch. 9, Handout, & Law Review Article ................................................................... 52
E. LS - CLS (extreme skepticism) & Balkin: Deconstruction.............................................................................................. 58
V. Adjudication ..................................................................................................................................................... 62
A. Adjudication - Nightmare & Nobel Dream: Handout on Interp. in Am. Jurisprudence ..................................... 62
B. Adjudication - Levinson: Adultery Clause ............................................................................................................................ 63
C. Adjudication - Levinson: Embarrassing Second Amendment (Bobbitt’s Modalities) ........................................ 64
D. Adjudication - Hutchinson: Forms of Legal Argument ................................................................................................... 67
E. Adjudication - Federalist Handout .......................................................................................................................................... 70
F. Adjudication - Spelunkian Explorers ...................................................................................................................................... 73
G. Adjudication - Fallon: Implementing the Constitution ................................................................................................... 74
H. Adjudication - Dred Scott & Attached Handout (Departmentalism or Co-ordinate Review)......................... 77
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I. Introduction & Overview of the Three Schools
 Jurisprudence
 What we’re going to do
 Study 3 Schools of Law
 Natural Law (oldest)
 Morality is important
 What’s the relation of law to morality?
 Positivistic School (1800s)
 What’s really important about the law is that some authority (us as human beings) posited the law.
 We hope laws are just but they aren’t always synonymous to morality
 If law is all about rules, then what sort of rules are there? ([Commands/Orders] vs. [rules about
what makes a contract valid])
 Legal Skeptics (late 1800s)
 Law is really politics from the perspective of the one who is interpreting the law
 Really the politics of the judge
 What is the impact of the judges who can remake the law and the impact of politics
 Interpretation (catch-all category)
 What are the current forms of legal argument
 Adjudication - Role of the judge
 Doctrine (i.e., constitutional tests, and such)
 Keeler v. Superior Court
 Interpretation of 187
 First the court seeks to establish the intent of the CA legislature when written
 Based on the language of 187 it was taken from the common law, so the court logically chooses to
use the common law to fill the gaps in definition left in the statute.
 Common law had the born-alive rule.
 At common law killing a quickened fetus was a “great misprision” and was severely punished
but wasn’t murder.
 Second the court reasoned that other states had feticide and anti-abortion laws, and that if CA had
wished to it could have written a law making feticide a crime.
 The code commission also noted that fetal homicide wasn’t law and that CA had the born-alive rule
 Response to Modern Scientific Changes
 Was the born-alive rule merely a form of evidentiary rule b/c otherwise how could we prove it was (or
likely able to continue) living unless it was born alive.
 Now the burden of evidence is on the State so we don’t need this rule to protect Keeler
 14th Amend Due Process Clause
 It would undermine fair-notice and warning to retroactively apply crimes
 If the court were to reinterpret 187 it would not give Keeler sufficient fair-notice
 State Constitutional Principle
 State legislature decides what the law is, not the judges (judges don’t make the criminal law)
 Rule of lenity
 If there is an ambiguous interpretation of a criminal law, then you take the more lenient for the
defendant construction
 Dissent’s Arguments
 We shouldn’t be bound to the ancient medicine that had much lower rates/chance of survival than today.
 Since human being is undefined, then the task of defining it has been delegated to the judicial system
 CA has adopted a codified canon of interpretation that seeks the “fair import of the terms/words and in
the interest of justice”
 The words comprehend her being a homo-sapien and that she was in being
 Also the justice is better served by attributing blameworthiness for this bad act
 Constitutional Issues
 Murder has always been a crime and he should have been on notice that he might fall under it
 There was no definition so this was the judges interpreting the terms where it was delegated
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 What’s the law?
 Positivistic
 Well the dissent focuses on the interplay of the codified law and the codified interpretation canon,
while the majority focuses on how it is bound by Due Process and by focusing on the common law
(and mysteriously ignoring the modification of the rule of lenity).
 Natural Law
 Dissent sort of takes a natural law approach by seeking to interpret the statute in a way that takes
into consideration the moral reality of these events
 Majority may merely disagree with the dissent’s interpretation that an unborn fetus is a human
being.
 Also the notice issues and how that might be unfair under the Due Process clauses
 Concept that the separation of powers requires an adherence to the democratic rights and
principles of majority rule
 Legal Skeptics
 Maybe the politics of the judges plays in and the majority’s ruling relies on their feelings towards
abortion (and maybe they don’t want to bolster the rights of fetuses)
 Politics plays in about who should interpret the statutes and the extent of their interpretation
 While natural law would say the real law was the underlying unseen morality, and positivists
would say the real law was the statute, the skeptics would say that the real law was the attitude of
the judges
 Natural Law Overview
 Origins
 Divine Origin: Natural law has a divine origin
 This means objective principles of justice or morality that we might think of as ethics: things that
are normative and seem like things we clearly ought to do or ought not to do
 “natural” principles of what is right and wrong
 Metaphysics as opposed to physics
 People who believe in natural law believe in something that doesn’t exist in our material world,
that ‘law’ comes from this non-physical realm
 This is where you fall if you are a moralist but not a believer in a divine being
 Supernatural as opposed to natural
 Self-evident
 Self-evident basically means you can only grasp them with you mind, you just sort-of know them
 This is like the geometry principle of “shortest path b/t two points = straight line”
 Examples:
 Life is good - is self evident (but for a Nazi this might not be understandable -- he just has an
impairment)
 Principles of Reason
 Although of divine origin, this is reason -- not revelation: we are discerning these principles
through exercise of reason not just having them revealed to us
 Human Created to Reflect Natural
 Derived from the origins: we make law to reflect what we discern from
god/metaphysics/supernatural
 Close Connection v. Loose Connection (with some natural principle)
 Close: Principle that “life is good” is closely connected with homicide
 Loose: Stop at red light, yield at yellow light, etc. Loose connection to life is good
 These are arbitrary in themselves, but still rules that compliment natural law principles
 These are relatively far removed from the natural law principle
 Authority When In Conflict w/ Natural
 When there is a conflict with natural law then the human rule lacks authority to be “law”
 “An unjust law is not a law” Aquinas
 I.e., when England became tyrannical then it no longer had authority over the American Colonies
according to the Declaration of Independence
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 Legal Positivists Overview
 HLA Hart is a legal positivist critiquing other legal positivists
 Origins
 They are interested in empirical facts, material world, physical world and facts we can understand
 I.e., if we are thinking about law we should look at our world and evaluate it (not divine beings)
 What do we See in the world?
 We see superiors and inferiors
 Force and the threat of force (this is what law is really about)
 Law is Really About: Orders issued by sovereigns/superiors backed up by threats of force/sanctions
 Traces back to Hobbes, etc. and his social contract about we have a fear of death and we thus create a
government to which we give power to protect us
 Natural Law Conflict: Idea that you claim b/c this isn’t natural law then it isn’t law -- while the reality is
that this doesn’t work b/c someone is still in power and they will just kill you for complaining (see large
quote in middle of legal positivists page)
 I.e., we are free from Europe’s power not because they were unjust but because we won on the battle
field. We didn’t win WW2 b/c we were on the good guys side -- we won by an exercise of force
 “Just” causes frequently lose out to force
 Legal Skeptics Overview
 Mostly associated with US and Holmes
 What does it say
 Statute isn’t the law -- the law is what the courts do or will do
 Interpretation is what the law is
 Example: So the first amendment doesn’t protect you -- but the Supreme Court cases do
 Courts don’t apply the statute, courts create a rule in interpreting & applying their own politics by way
of the statute
 The Concept of Law Organization
 Viewed as the preeminent primary source on the theory and philosophy of law
 He was an analytical philosophy scholar (relationship of ideas to other ideas -- not just what is right
from wrong)
 Structure of Book:
 Preface - What he’s going to do
 Ch. 1 - Why he’s going to do it
 Ch. 2 - Builds of Command Theory (CT) so it is more impressive when he breaks it down
 Ch. 3-4 - Breaks down CT
 Ch. 5-6 - Develops his own LP theory (different from Austin’s CT) and answers many interesting Qs
 Ch. 7 - Responds to the LS
 Ch. 8-9 - Takes on NLT and takes on the relationship of law and morality
 Ch. 10 - Int’l Law (addresses whether it is really “law” at all)
II. Legal Positivists (LPs)
A. LPs - Hart: Preface - What he’s going to do; & Ch. 1 - Why he is going to do it
 Preface & Chapter 1
 He’s trying to answer the basic question of what is the law in modern western legal systems
 We basically get a lot contradictory statements in the varying camps of legal philosophy
 We get at this question by looking at the varying contradictory statements
 NL: An unjust law is not a law (even though we are already referring to it as a “law” -- tell it to the
hangman)
 LP:
 Law as a sanction - law is really the application of force (i.e., it is we will kill you if you kill
someone, not don’t kill someone)
 Constitutional law is not law because there is no force to back it up (there is not order backed by a
threat)
 I.e., Magna Carta wasn’t a law b/c the king was only bound by his promise
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 LS: A statute is not law
 Need to think about
 Law’s relationship to morality (i.e., why would one see connections here)
 Hart wants us to be aware of these issues so we can fully understand them
 Frequently there is an overlap b/t the two: often about normativity
 Similar language: normative (must should) hortatory (ought to do something) rights (legal
rights/duties and moral rights/duties)
 Justice as both a moral concept and a legal concept (highest court is staffed by “justices”)
 Law’s relationship to coercion
 Law is strongly supported by the existence of force (think about when the ability to enforce breaks
down during a disaster then people break the law and the system breaks down -- law loses
meaning)
 W/o coercion the system breaks down
 Law’s relationship to rules
 The focus is really on interpretation of the rules
 Idea that the first amendment isn’t even really a rule, but a directive to the Court to figure it out
 Rules v. Habits: What is a rule anyway
 Going to the movies on Friday (habit) v. Going to church on Sunday (rule that is more founded on
normative requirement)
 Not fulfilling the habit might leave you disappointed, while not going to church may make you
feel guilty
 What’s the Difference?
 LP: seems to be people’s feelings (guilt v. disappointment) or their thoughts in their heads
 Hart’s Methodology
 Focusing on concepts: we are building concepts and maps in our head of what the legal system looks
like
 Focusing on Facts (empiricism): not how legal systems ought to be but how in fact they “are”
 Descriptive Sociology:
 We want a better understanding of law in order that we can understand the facts of how our
society/legal system works (as opposed to exercising in philosophy for fun)
 Special Attention To:
 Language and how we use words
 Rule v. Habit?
 Sharpened awareness of language = sharpened awareness of concepts = sharpened awareness
of facts of our society and legal system
 This is “armchair sociology” of basically Hart conducting a sociological analysis of himself as a
British lawyer
 Parting Thoughts
 We aren’t going to get a definition
 There is the idea that anyone could give a basic definition of a legal system -- but that’s not what
we care about
 We also aren’t asking about whether primitive law or international law are law
 The big philosophical issues are what we care about, but they can’t be pinned down to a definition -we hope to just get concepts and models that help us narrow and sharpen our conceptual understanding
of what law is
 Recap
 Discussed the three schools of law
 NL - Ethics / Normativity & Justice / Injustice & Authority of law (should it be obeyed if unjust?)
 I.e., the declaration of independence -- we don’t have to obey the British system
 Lp - Facts / Empirical Realities that exist & the authority of law in the sense of enforcement (not
morality or justice but things like sanctions and force)
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LS - Rules / Final Authority (a court which interprets). Are statutes really law or are they merely an
ingredient in judicial decision making. A statute is not law, it is a point of departure for the judicial
decision/interpretation of the statute
Paradoxical Statements
 An unjust law is not a law
 Constitutions are not law (i.e., unenforceable)
 A statute is not a law
Hart’s Preface
 As a LP he wants to focus on empirical facts and realities -- he is doing descriptive (armchair)
sociology
 He wants to build a concept or a model / road map
 Going to focus on the way we use words (linguistics) and understanding the way we talk about the law
will help us better understand the concepts, which will in turn help us understand the facts of the law
Why do we have Paradoxical Statements?
 It isn’t that they don’t understand the basics of “law”
 It also isn’t the borderline cases like Int’l law or Primitive law (i.e., no court to enforce judgment,
etc.) and we aren’t referring to tribal law of sorts
 These are provoked by:
 NL - Recurring issues (links) b/t the relationship of law and morality (common vocabulary: right
duty justice) and obvious overlap
 The paradoxical statement tells us we should be considering an unjust law
 LP - Coercion is the marker of this paradoxical statement b/c force is a common aspect of all legal
systems (state monopolizes force). When we don’t see force (disaster/black-out) the law can break
down (links b/t the two).
 The paradoxical statement tells us we should consider the role of force
 LS - Rules and habits -- what is the relationship? What does it mean that there is merely convergent
behavior. What is a rule and what does it mean to apply a rule and does the “applier” or judge
actually apply it?
So we are working backwards by understanding words in these paradoxical statements, to create models,
and to then understand the facts of law
We aren’t looking for a definition
 We won’t find some meaning based on an analysis of similarities and differences
 What we hope is to advance our knowledge of modern legal systems and a concept of law that will help
us understand the various relationship elaborated upon in the NL, LP, and LS paradoxical statements
(morality, coercion, Rules vs. Habits)
B. LPs - Hart: Ch. 2 - builds up CT
 Chapter Two
 Goal:
 Hart is a LP and he wants to focus on facts. John Austin is also a LP and interested in facts. Hart is
looking/examining John Austin
 He is attempting to build up Austin’s theory (make the strongest version of the Command Theory CT)
 Gunman Tweaks
 What do we have to do to make the gunman setting apply to everyone
 Generality: A class of persons and a class of conduct
 The addressing of the person affected is general and is defined by the statute (think IRS tells you to
pay taxes)
 Sovereign & Subject: (we need some authority) King/Peasants
 King issues general orders
 GHO: There needs to be a ‘General Habit of Obedience’ in order to form the Sovereign/Subject
relationship
 This gives us a standing order or an enduring character
 Later the differences b/t habits and rules becomes critical to Hart’s theory
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 What do we need for this?
 We need a sanction
 We need a fair amount of obedience (more often than not)
 We need the sovereign to be independent of another legal system
 So if the king actually turned out to be the crown prince, then he isn’t really the
sovereign
 Voluntary cooperation to some extent (you can’t effectively rule if everyone revolts)
 This relationship makes the laws enduring over time (persistent/standing aspect of law)
 Command: There is a problem with using the term command b/c it suggests preexisting authority or
hierarchy; We want to think about it as more of an ‘order’.
 We are attempting to get at/understand ‘authority’ so we don’t want to mistakenly build it into our
theory
 Good Thoughts About CT b/f we break it down
 It endorses a sort of moral realism that this is how legal systems (even unfair ones) often work like this
 Nazis in fact “existed,” they established obedience by “sanctions” and “force”
 Recap of Ch. 2
 Hart = LP -- Interested in facts
 Pay attention to language 
 It leads to conceptual understanding 
 This conceptual roadmap will lead us to clear understanding of the facts
 I.e., Language clarifies concepts; Concepts clarify Facts
 Chapter 2 he built-up basic model of Early LP (command theory) - Orders backed by threats
 GHO - General habit of obedience by the peasants and no general habit of obedience by the sovereign
 Sovereign: Gunman at large idea
C. LPs - Hart: Ch. 3-4: Begins to break down CT
 Chapter 3 - Problems with the Theory
 If we break it down, then we’ll have a better understanding of what the legal system really is without
the obscuring nature of the flawed CT
 (1) Content of Law
 Does CT really explain the content of all laws? If it doesn’t then it misses a huge portion of the
‘law’
 Types of Law
 Criminal Law
 Looks a lot like orders backed by threats/force
 Tort Law
 Looks sort of like CT -- imposes duties
 Contract Law
 Don’t really look like orders backed by threats at all
 These are like a how-to manual
 Power Conferring Laws of Governance
 Nullity as a Sanction (re: Contract & Power Conferring Laws)
 CTs say that the threat of nullity is the sanction/threat in the CT
 Examples
 Contract void
 Will is no good
 Judgment overturned
 Counter-Argument
 Nullity Not Always a Bad Thing
 Sometimes a pitcher wants a strike, sometimes a ball
 What is the purposes of social promises versus contracts that are binding?
 Sometimes you just want a promise and sometimes you want a binding agreement
 This can be disappointing for one party, but not the other
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 We aren’t trying to discourage people from making promises (unlike homicide law trying
to discourage murder) -- not the goal of the nullity so it isn’t a sanction
 This is a manual for what do you want to create?
 Criminal Laws can be separated from the standard and the sanction, but the nullity (if it were a
sanction) cannot be separated from the rule
 Power Conferring Rules as Fragments of Laws
 Contracts, political authority, etc.
 Extreme form vs. Less extreme Form
 These “secondary rules” are really just portions of the primary rules
 Death penalty (the real law - what the official does) is really just related to a fragment about
don’t kill, which is really just a fragment of both houses of the legislatures say so (create the
secondary rule)
 So when we have secondary rules, they are fragments to a more universal rule ordering an official
to do a certain thing (they are like the antecedent ‘if’ clauses, and the ‘then’ clause is the real law)
 Counter Argument
 Will you get a better or a fuzzier picture of a legal system if you imagine portions of the
constitution as merely fragments of the criminal code?
 NO, these look like their own rules and it is confusing not to think of them as such
 Clarity, not dogma, is important to Hart, so the confusing nature of this (is part of the
problem?)
 Problem w/ putting the sanction in the center (distorts the nature of a healthy legal system)
 This is the bad man in the center theory: focus on the bad man & manipulate our
sanctions to deter him
 But, the ordinary citizen isn’t the bad man; Ordinary citizen is the puzzled man
 A moral man doesn’t want to pay taxes, no matter what. Just tell me what I owe so I
know what I need to pay. I don’t like it but I’ll do it anyway.
 Another idea, is that the puzzled man is really just a more naturalized bad man, and if we
don’t focus on him then break downs might lead ‘puzzled men’ to increasingly become
‘bad men’
 Note: Although Hart is saying not to put the sanction at the center, his terminology of Primary
versus Secondary Rules takes for granted the idea that he puts sanction as central in part of his
own theory
 (2) Range of Application
 Under CT Sovereign is Immune
 Because an order must be backed by a threat, how can the sovereign’s orders be directed against
himself
 CTs think that any limits on the sovereign is not actually binding law, but is just a promise by the
sovereign to behave a certain way
 Legal Fiction Manipulation
 We can circumvent this problem w/ ludicrous efforts where the Sovereign is a dual person: his
official self making law, and his non-official self that must obey his orders
 Modern Legal Systems are Self-Binding on Legislators
 It is a problem for modern legal theory if it identifies something we regularly think of as law, as not
really being law. People will doubt our theory/model
 Assume Congress is the Sovereign
 They frequently bind themselves (more-so than not) so how do we explain this self-binding
nature of legislation (thus problem/flaw w/ CT)
 (3) Mode of Origin
 Custom as a form of law if reasonable (in British courts)
 Problems
 In CT you need someone to have ‘issued’ (or commanded) an ‘order’
 Maybe there was an order that made the custom law
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 But generally there is a pre-application b/c it is reasonable as law, not because it already
was law
 Why can’t a legal system just have a rule that some types of custom are law? Do they all have
to be ordered by someone else
 Tacit Ratification
 We logistically lack the awareness of the sovereign to tacitly ratify many customs
 Aside on Hart’s Terminology Later
 Primary Rules
 Torts and Criminal Law
 Secondary Rules
 Power conferring rules
 Rules about how to create the primary rules etc. (i.e., legislative authority to pass a criminal statute)
 Recap of Ch. 3
 Addresses three failures of CT
 1) Content: Fails to explain content well
 Primary Rules: Orders backed by threats
 Secondary Rules: Power conferring rules (contracts / wills / legislative and judicial authority)
 Secondary rules can create primary rules
 By focusing on sanction we miss the social function of the law in guiding the “puzzled man’s” conduct;
person who wants to obey the law b/c they are a good citizen -- not b/c they want to avoid sanction.
 So we misconstrue the “ancillary” sanction with the “primary” guiding conduct feature
 2) Range of Application:
 Law sometimes limits the sovereign (which CT says we need)
 How can the Monarch “threaten” himself to support the order backed by threats feature
 3) Mode of Origin
 Custom as a form of law, but when does it become law?
 Chicken or the Egg: Does the custom become law when it is applied by the courts or before?
 Tacit Orders of Sovereign: by not countermanding the custom, then it is tacitly law
 Generally, however, parliaments are not self-aware enough to justify or deduce a tacit order
 Chapter 4 - Sovereign & Subject
 Big Picture:
 Not Sovereign/Subject (Austin), but Social Groups (Hart)
 Social Groups accept some rule (acceptance as opposed to the order backed by threat)
 Understanding the idea of internal aspects allows [clearer understanding?]
 Rule vs. Habit
 Sense of Normativity; of “Ought”
 You “accept” that there is a rule and this is the issue, not the mere convergence of behavior
 Justification: for both following the rule and for criticizing when failing to follow the rule
 I recognize that when I fail to follow the rule, others may criticize me (in varying levels of
strength from a car honk to an arrest)
 Internal POV:
 The internal POV is the idea in someone who accepts a legal system, considers it normative,
and that their criticism following breach is justified
 External POV is someone who is either outside a legal system (i.e., we are external -- we see it
but don’t “internalize” it), or someone who rejects their own system and is essentially only
guided by fear of sanction
 To understand the facts of legal systems we need to be able to articulate the internal POV to
understand both “what” people do (the habit/conduct), and “why” people do it
(justifications/normativity/ought to).
 Other failings of CT - (4) Continuity
 Examples:
 How does one king succeed another king and then there be continuity of law?
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When Rex I dies and Rex II takes the throne, there is not yet a habit of obedience, so how is there
law at this stage? Does law not exist until habit forms, or can we create continuity?
 Obviously in legal systems this isn’t how they work b/c there is some stability b/t rules
 What can create continuity?
 The idea that the social group follows Rex I’s “rules” can create continuity:
 I.e., that Rex I is the anointed king, and his bloodline will hold power
 So we need these type of continuation rules to be accepted
Other Failings of CT - (5) Persistence of Law
 Examples:
 We follow Rex III, but we are still following the law of Rex I even though those laws have not
been repealed and Rex I has been dead for some time.
 Basically, law persists over time.
 Habit of Obedience Problem:
 Old laws have a problem under traditional CT, b/c there begins to be no habit of obedience to old
laws once the earlier king has died (or all the old followers of Rex I have since died).
 How do we explain this in a legal model concept?
 What Explains Persistence?
 Social group can have an acceptance of a rule some set of rules about the persistence of law or
legislative enactments
 The “fact” that would make this law is not our habit of obedience to old dead and gone legislators,
but to our acceptance as a social group of rules of continuity
Other Failings of CT - (6) Limits on the Sovereign & The Sovereign Behind the Legislature
 I.e., “Constitutional law is not law” explains the CT thought that you need an order backed by
threats
 Disabilities not Duties:
 Legal limits on the sovereigns are not really duties on the sovereign but disabilities
 Solution: Social Groups Accepting Rules Placing Legal Limits
 The social group can accept a set of rules (a constitution) and consider it normative and as
legitimizing certain conduct, etc.
 Orders backed by threats theory cannot account for these things we clearly think of as legal limits,
but this social group theory can
 Who is the Sovereign
 If people are the sovereign in a democracy we are back to the problem of people looking
themselves in a mirror -- everyone orders themselves to obey themselves.
 Hart says this result forced by the Orders backed by threats sovereign/subject model just
doesn’t work
 Better way: Social groups accept a certain set of rules regarding self-governance
Mode of Origin Explained
 Why can’t a certain legal system include an accepted rule by the social group that some customs are
law?
Range of Application
 Why can’t we just solve this problem also by thinking of it as a social group acceptance of rules
detailing self-application re: laws.
Overview / Result: In all these details the Orders Backed by Threats model becomes preposterous, but we
can remedy these problems if we contemplate a legal system that is really a social group that internally
accepts certain rules and the normativity associated with that acceptance that creates an idea of criticism
that is both justified (towards others) and deserved (on one’s self) in times of violation
 CT has been pretty thoroughly demolished
 This model also contemplates how an “unjust law” can still be law: i.e., the Nazi’s essentially became
the dominant social group and that is why it empirically existed
Counterargument:
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
Where does the social group acceptance come from? Some CTs would argue that the truth of our
“acceptance” lies in the intermittent use of force (i.e., civil war, rejection of communism, WWII defeat
of Nazis)
D. LPs - Hart: Ch. 5-6: Hart develops own LP theory
 Ch. 5 - Fresh Start
 The Key to the Science of Jurisprudence:
 The union of primary and secondary rules (and their interplay)
 Primary Rules: Rules of obligation (do this, don’t do that)
 Secondary Rules: Power creating/conferring rules; rules to create new primary rules
 Hart’s Theory
 What we have is a social group accepting a set of rules from an internal normative POV, and the rules
that they are accepting are a combination/union of Primary & Secondary rules, and their relationships
 This links back up to the failure in Ch. 3 re: the content of law being failed by the CT
 What does Social Group Acceptance Entail?
 The Idea of Obligation: Obliged vs. Having an Obligation
 Example: Mugger stops you and demands money. You may be obliged b/c otherwise you’ll get
shot, but you don’t really “have an obligation” b/c this implies authority / internal POV.
 Contrast w/ an officer who pulls you over to whom you “Have an Obligation”
 Habits + Sanction = Obliged? / Normative Rules = Obligation?
 Obliged:
 This appears to be hardline empirical facts b/c they follow a sanction
 Obligation:
 This appears to be soft and seems to involve going into the psychology of things (but Hart
disagrees)
 Internal POV = Obligation?
 So we don’t really need to get into the psychology of things, we just need to consider that they
(social group) have accepted the rule as normative or justified
 We can get to this internalization w/o having to talk about someone’s psychology in accepting it
 Acceptance of Rules as Normative (the manifestation of those internal POVs)
 Distinguish this with habits + sanctions + psychological states
 Example: Frenchman comes to Miss. and speeds, but then returns to France
 He has an obligation to the state of Miss. He does not have a habit of obedience. There is probably
not way to enforce the sanction. Does he feel guilty (psychology)? -- doesn’t really matter actually.
 None of the above is as important as the internal POV of those in the social group who accept the
rules as normative
 Convergence: Frequently we have a convergence between these two camps anyway
 Just because we sometimes have all of these (GHO, sanctions that can be enforced, and
psychological states associated); this is not what explains the law - What explains the law is the idea of a social group (whether we are a part of it or not - really
just the dominant social group) accepting a certain set of rules (which are the union of primary
and secondary rules) as normative or creating a justification for enforcement
 Elements of Law (what are secondary rules)
 Primary Rules are Easy, so focus on Secondary (power conferring) Rules
 Rules of Recognition - Ability to ID Rules
 U.S. Rule of Recognition: Our overarching framework is the Constitution - it tells us how things
relate in hierarchy
 Sometimes we need help understanding “what is the law.”
 Example: There may be a law against flag burning in Texas, and (even though invalidated
by SCOTUS) it may still be on the books but U.S. Rules of Recognition tell us that it isn’t
actually the law
 Rules of Change - How do we change the rules?
 Public Rules: Legislative rules of authority / precedent
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
Private Rules: Contract law is equivalent to private law b/t the parties -- i.e., when we make a
contract we temporarily create law between party A and party B
 Rules of Adjudication - How do we apply the law and resolve issues of uncertainty about violations
 Interaction of Secondary and Primary Rules Diagram in the American Legal System
 Secondary Rules
 Rule of Recognition (RR) = American Constitution
 Rule of Change (RC) = Constitutional Amendments  but this strangely just points back to the RR
 Rules of Adjudication (RA) = Article III and the idea of Supreme Court as being the one who can
interpret our RR  This just again points back to the Constitution
 Primary Rules
 Congress uses RC along lines of RR to make controlled substance law that RA ultimately interprets to
create an adjudication
 To even create the lower district courts, Congress used RC under RR to create RA (district courts)
 We even have RC that determine what types of cases the courts will hear (jurisdiction, political
questions, federal question)
 Primary rules of obligation not to violate RR  § 1983 and Bivens created through RC that make it a
violation to go against our Constitution (RR) and ultimately this must be adjudicated in RA.
 Basically recognize the complicated relationships b/t Secondary (RR / RC / RA) and Primary
 Adjudication of Adjudication
 This was what Marbury v. Madison was  it was jurisdiction to decide jurisdiction (haha)
 RC under Article I changing Article I requirements
 Legislative equivalent of adjudicating adjudication
 For example we have altered our filibuster rules over time: this is what rules do we need to follow to
make new rules
 Could you filibuster a proposed rule change to the filibuster rule? Whoa, paradox or endless ‘oscillation’
 Recap of Ch. 5: Outline of Hart’s Theory
 Social Groups
 We have social groups of persons, and there are dominant ones (sometimes political, sometimes
military)
 These Groups Accept rules
 These dominant social groups accept certain rules as normative and manifest an internal point of view
 Rules are a Union
 There is no orders backed by threats
 There are rules which are a union b/t the secondary and the primary rules
 So the social groups accept sets of rules which are a union of primary and secondary rules, and the social
groups accept these rules as normative and as legitimizing criticism.
 This is less complicated and makes more sense than the original LP theory of orders backed by threats
 But it is still complicated and its complexity is best understood by the RR/RC/RA interaction diagram
above.
 Ch. 6 - Foundations of a Legal System
 Overview
 Hart is saying once we adopt this conceptual model of a legal system, then we have new issues to
address
 1) RR and Legal Validity
 RR & Legal Validity
 Specific Question: What is the law of [blank]?
 Question order (in approximate order):
 Is there a statute?
 Was there an interpretation of the statute?
 Do Prosecutors prosecute?
 Did the legislature have authority to make it?
 Has it been struck-down?
 What are we doing when we ask this?
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 We are trying to determine if a law is valid by tracing back to the R.R.
 It is the master ‘rule’
 Why does Texas get to legislate in its jurisdiction?
 The R.R. says it can (the Federal Constitution says it can)
 What if there was a case from SCOTUS that struck down a Texas flag-burning law?
 Well SCOTUS was authorized by the RR to make that type of decision
 Ultimate Authority: Why does such a ruling make a law invalid?
 Because we have a hierarchy that goes up to the Constitution as our Ultimate RR.
 We often don’t discuss these things, but sometimes the Supreme Court will elucidate on them
 I.e., sometimes SCOTUS will say we get to strike down unconstitutional legislative acts
 Hart wants to draw these obvious things out so we can see the structure of the complex
secondary rules to the Ultimate RR.
 Legal Validity and Efficacy [of a law]
 CT
 A hardcore command theorist would say that legal validity depends on efficacy (or actual
enforcement)
 Hart
 We can separate legal validity from efficacy
 Legal Validity deals with the question of whether someone has an ‘obligation’
 This is a statement about how the rules operate and about how the social group accepts the
rules
 Efficacy deals with whether one is ‘obliged’
 This would be a statement that a person (or the social group) has a habit
 A statement of legal validity is not necessarily a statement about the efficacy
 Whether or not we can actually enforce the speeding ticket against the French national does not
affect the fact of whether the law is valid
 Hypo
 1862 in South Carolina:
 Suppose you ask Abe Lincoln whether SC is part of the United States?
 He would say under his views of legal validity that a state cannot secede (it is a state
engaged in insurrection and treason, but it cannot leave)
 This is still true (about legal validity) even though there was presently no efficacy
 So a legal system can exist if there is temporary lack of legal efficacy
 Lincoln’s statement would be a statement about the present legal validity under the RR
he accepted, and not a statement about the efficacy of the rule against South
Carolinians (unconcerned w/ their habit of obedience, the reality of sanctioning them,
and their psychology)
 Suppose you ask South Carolinians
 They would disagree; we would have a temporary divergence.
 This is an exception to the normal context of a statement about legal validity: typically they
converge
 1920 in South Carolina
 They are now over all the unpleasantness of the civil war
 We now have both the original claims of legal validity by one recognizing the Ultimate RR in
the U.S. Constitution
 We also have a good healthy state of efficacy  and the fact that these two now converge and
are associated does not mean they rely on one another
 RR & Its Own Validity
 RR = It is the criterion of legal validity; tells us whether other rules are valid or not
 We can’t discuss the validity of the RR
 It just, factually, “is”
 We judge subsidiary validity by comparison, so when you are trying to judge the validity of the RR
there is nothing to compare it to
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




What Can We Ask About the Ultimate RR?
 Is it good? Does it exist as a matter of social fact? Is it ethical or moral?
 These are good things to think about, but not for philosophy / political science not
jurisprudence
 This makes the Ultimate RR different from all our other rules
RR & Existence
 Statute
 The statute exists b/c as a matter of legal validity it is under the RR
 RR
 It cannot exist as a matter of legal validity
 It exists only as a matter of social fact
Classifying the RR
 Should we classify it as law or fact?
 Law: well there is an internal aspect and we think of it routinely as “law”
 Fact / Pre-Legal Fact: argument that RR only exists as a matter of Social Fact not Legal Validity
 We can say a statute has a “legal validity” despite its actual efficacy
 But we can only talk about the RR as existing
 Hart: Both classifications are right in some ways
What does it mean for Existence of the RR as Social Fact?
 Two Groups of People (with roles)
 Officials (active acceptance)
 Citizens (passive acceptance / acquiescence)
 This is a Complex-System Compromise
 In a complex system we just can’t plausibly say that all citizens understand how the system works
 So we break this up into a set of officials (who understand big chunks of the RR) and citizens (who
have a much more vague understanding of the system).
 Officials: Understand the nuances and apply those rules in determining legal validity
 Citizens: Passive acceptance of an understanding of the law
 Personal Thought: do we really have a natural law view in citizens and a LP view in the officials
 Thus the relationship b/t the two is force?
 Classes w/in the System
 External Classes: (potential presence of these external classes)
 We have people who break free and are not really part of the system
 Separatists movements
 Sometimes the external class becomes huge (i.e., civil war era)
 The Internal POV
 Recognizes the normal distinction of Officials and Citizens
 So Existence of a RR is a legal fact that involves groups of official and citizen components
Pathology of a Legal System
 What does it mean to say that it is sick?
 We have social groups who disagree about the meaning of the RR
 Examples
 These are situations where the legal system is in pathology, and it needs to be resolved
somehow
 American Revolution
 There were two perspectives on the RR: England’s view and the view of the dominant social
groups on the ground in America
 Civil War
 Some groups said they were leaving the system, and other disagreed it was possible (can’t
secede, only treason)
 What Level = Pathology
 When do you know you’re system is sick?
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 Regular case load going to SCOTUS every term is not necessarily sickness -- this is normal
 When we enter a state of ‘oscillation’ we may be sick
 Examples
 South Carolina in 1830s
 They began exercising the power of nullification (i.e., voiding things it felt were
unconstitutional acts by the U.S.)
 It was a disagreement over who had final authority to decide something
 Miss. Rules of Civil Procedure (oscillated b/t the Legislature and the State Supreme Court
claiming authority)
 Problems with the Official v. Citizen disparity
 How do we account for the fact that citizens are not quite so passive as we would think?
 Can you box them into a type of external class?
 Do the citizens typically guide their behavior more by ideological idea and moral equations? Moral
evaluations?
 If you lose this system do you then also lose the idea of RR as a matter of social fact?
 So
 If people are not passively accepting as Social Fact the RR, then does it really make sense to
describe it so shallowly as existing only as a matter of fact and not as a matter of something else?
 Recap of Chap. 6
 RR = Criteria for Legal Validity
 Validity of all laws traces back up the ladder to the RR (so in validating a U.S. law we trace back to the
Constitution, even though we typically don’t trace all this back b/c we may assume much of it
 Differs From
 Not the same as a statement about habits/sanctions/psychology
 I.e., the validity of a rule does not depend on these things (French national w/ a speeding ticket
or South Carolina in 1800s).
 However often these things coincide w/ statements of validity
 All Rules under the RR Can be Described As:
 They can exist as both a matter of legal validity and social fact
 Sometimes/frequently both
 But not always (i.e., an old law on the books that isn’t enforced; or a law on the books that has
been ruled invalid even though it hasn’t been formally deleted)
 RR’s validity?
 You can’t talk about the RR as being valid or invalid
 It just merely exists as a matter of social fact
 Classifying RR
 Law & Fact
 Both are really good, don’t need to classify it as one or the other
 In terms of the way we think it makes sense to think of it as law
 But since we can’t test the validity of the RR then it makes sense to think of it as a matter of
social fact
 Officials vs. Citizens vs. External Class
 Officials actively accept the RR
 I.e., a judge engaging in Article III adjudication
 Citizens passively cooperate with the RR
 Plumber who doesn’t know what the constitution says but still follows it generally
 External Class actively or passively rejects the RR
 Criminals, seditionists, revolutionaries
 Pathology of the Legal System
 Division among dominant elites/officials over what the RR says
 Moderate - South Carolina nullification crisis; Miss. R. Civ. P. and Newell v. State
 Extreme - Revolution
 Minor - A typical system contains regular constitutional issues that are dealt with each term
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 If they don’t threaten instability then there isn’t a pathology, when shooting breaks out you
know for sure you have a pathology
E. LPs - Hart Ch. 7: Responds to Legal Skeptics
 Ch. 7 - Skepticism (intro)
 Hart’s Big Thought
 So we have a rule: “No vehicles in the park.”
 Hart says every rule has a (1) settled core, and (2) and open texture.
 Settled Core: the law is clear
 Formalists think law is all settled core
 Open Texture: the law is unclear
 Skeptics think all law is unclear
 Hart: Both are wrong; there is a combination
 What is Settled Core and what is Open Texture?
 What is clear: A car
 What is unclear: Bike, a moped, a stroller?
 Chapter 7 - Skepticism
 Open Texture (OT) vs. Settled Core (SC)
 All laws have both an open texture and a settle core of meaning
 Hypothetical of what is a vehicle re: no vehicles in the park
 SC - Meaning is clear
 OT - Meaning is unclear
 Formalists vs. Skeptics
 Say that rules are either all OT or all SC
 They are both wrong
 Key To Jurisprudence
 Union of primary and secondary rules
 What is the legal system all about then? -- Rules
 What are Rules / How are Rules applied
 In introduction Hart says he wants to clarify the relationship b/t law and rules (he already tackled
law and coercion relationship)
 Law as a Guide to Behavior
 Categories
 Authoritative Example (do as I do) = precedent (words minimally)
 Rule Verbally Conceived (do what I say) = statute (words maximally)
 Both Flawed
 Both create a situation of open texture and open core.
 Statutes appear to be more clear (more SC) but maybe not
 Law Balances
 Formalists want everything to be clearly and fully explained (This makes compliance and
notice more clear and restricts judicial law-making / judicial discretion)
 We need both OT and SC
 We have ignorance of fact and indeterminacy of aim
 We can’t predict the future or the facts so w/ open texture we can afford this
 New technology may come along later that we want to account for with “no vehicles in
the park”
 This flexibility balances against the SC
 Similarities of Precedent and Statutes
 Precedents as Rules:
 Frequently courts will articulate their precedents in the formulation of rules similar to what
would be in a statute
 Statutes like Precedents:
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 The verbalization of the rule creates an image in our mind and we begin thinking of
examples of how to conform our behavior to that “concept”
 The statue puts in your mind a central plain example and you try to follow it
 Statutes and how the Balance SC and OT
 Statutes emphasizing SC: Voter registration statute which seeks to minimize the open texture
b/c we want it to be very clear
 Statutes emphasizing OT: Statutes which deal with negligent homicide basically kick the issue
to the jury -- it really isn’t a rule at all but a standard to be followed by the jury
 Why!? We don’t want 10,000 sub-rules, we just (or there is no way to state with precision
how careful you have to be) create a standard that says be careful and lets the jury deal
with the circumstantial facts
 Tax code we want to emphasize formalism (exact amounts not “reasonable” or “just” amounts)
 Correlate the two by where we have more cases (i.e., more facts) we can create greater SC over
OT aspects.
 I.e., a strict rule of Murder with a small sub-core of exceptions like self-defense if it is
reasonable -- but Murder isn’t reasonable; remember Hall’s distinction he drew in crim law
 Formalism is pretty much dead at this point so the Skeptics Receive most of his flack
 Who Are the Skeptics
 Holmes
 Legal Realists
 Karl Llewellyn
 Jerome Frank
 Critical Legal Scholars - CLS (not around when Hart is writing)
 They say the SC is not in fact so well settled
 Hart’s Attack
 Skeptics’ Predictive Theory
 Law is the prediction of what courts will do
 1) It Takes Law to Create Courts
 This concept fails to take into account the fact that we need secondary rules to create courts,
and they aren’t self-created
 But doesn’t he undermine this in the infallibility section where their authority is derived over
practice
 2) Judges use the Law From an Internal POV
 The courts cite the rule as the law when they use it to formulate opinions
 Courts use the law from an Internal POV
 3) Function of Rules
 (a) Remember we are starting from a settled core
 (b) Judges from an internal POV adhere (or start from) the SC
 So the judge looks at the Verbalized Statute and formulates an idea of a SC and then
go from there (they start the Internal POV)
 Judges who are obviously wrong are subject to criticism
 (c) Finality and Infallibility
 Finality and Infallibility
 History of Dissents: There used to be no dissents but now there are
 Theory
 If a high court is really “final” then it cannot be “fallible”
 This would mean the Constitution is what the Court says it is
 Baseball Hypo:
 Suppose we have a rule book for baseball that contains 100 rules applicable to the players.
Rule 101 says no appeals from the umpire.
 Legal Skeptics say that this would mean the first 100 don’t mean anything
 But no one really believes this
17




 Say one rule says three strikes your our; if the up allowed four strikes then it is in no way
illogical to argue that he is misinterpreting the SC of that rule
 There may be no practical appeal but it still makes sense to argue with the ump that he
broke the rule
 We might fire him later, etc.; but for this game there may be no practical remedy but it still
makes sense
 Constitution Has A Settled Core
 So even though the Supreme Court might get it wrong sometimes, there is still a good reason
for arguing with them even though there is a rule of “no appeals from the Supreme Court”
 We can still argue and criticize them
 There is no infallibility: The fact that we have dissenting opinions means that there is fallibility
 So if the Court can get the Settled Core wrong sometimes, what does that mean for the OT?
 Just b/c they can’t be overruled doesn’t mean that they got it right
 So he is rejecting Predictive theory because finality does not equal infallibility
 Hart’s Concession
 In the OT law does appear to be “what courts do” b/c there is no clear answer anyway
 This makes it perfectly reasonable (and in fact the only reasonable thing to do is) to make a
prediction on how the OT will be decided.
 Judges are here openly engaged in Quasi-Legislation
 Judges through this judicial function basically amended the statute by giving it a factualparticularity by deciding upon that moment this is what the OT means and it creates a new,
tiny and specific SC
 Criticism of Hart
 He has no interpretive theory here: there is no clarity b/t he SC and OT branches and
whether one falls into the other depends on your interpretive approach
 I.e., Eighth Amendment on what is Cruel
 For some who take an OT approach it is broad
 For some (like Scalia) you look at what the founders thought
 We need an interpretive theory to deal with this
 How do we interpret words (plain language vs. legislative intent)
 Howe do we handle Stare Decisis: is it a hardline command or a general guide that can
be reconsidered
RR and Infallibility
 If Finality in the OT really is infallibility, then when is the Constitution or parts of it OT and when
is it SC?
 So some people see the Constitution as mostly settled (Scalia) some see it as mostly open
 If all the cases that the Court takes are the hard ones, then all the cases are OT, then it is infallible
Authority of Courts (huge concession to the skeptics)
 Authority of Court is retrospective and later appears when it is legitimized by recognition of its
rulings
 Nothing succeeds like success -- they asserted authority and they got acquiescence eventually
 The authority of the Courts could be in the SC of the R.R. (could clearly say that Courts have
authority)
 But for us the authority of the Courts is in the OT of the R.R. (our Constitution)
 This deeply undermines the idea that you even need Secondary Rules to create the courts because
they are self-actualized
 This means that there is actually a lot of truth that the “law is what the Courts say it is”
Criticism of this Chapter
 Appears to say 80% of the skeptics belief is right but 20% is wrong, but that 20% is a huge
exaggeration
 So instead of a huge attack on legal skeptics, this appear to be a huge concession that they are right
 This is a critique that ends up conceding much of what the Skeptics really care about
But What is Hart’s Big Push?
18

When we focus as Legal Skeptics do on what is happening at the highest level of the court, then:
 We fail to take into account a majority of the SC that never makes it to the Supreme Court
 As a type of pyramid, the Supreme Court operates at the top in the OT area and primarily
everything they do is in the OT, but a bulk (the base of the pyramid) occurs in the SC area
 Discussion of Hart
 Why doesn’t he discuss interpretation of OT vs. SC?
 Nicer approach to Formalists: they use rules of interpretation to minimize the OT
 To minimize the
 Sometimes OT is needed
 Where there is no sufficient factual compartmentalization available even the formalists may
favor some
 Differences to how you Read Precedent
 Some people disagree w/ the whole distinction of holding vs. dicta; or stare decisis vs.
rationale; policy vs. not policy of the case
 Codification Movement
 Sometimes the legislature will pass a statute that says exactly what a precedent says, and it is
merely to emphasize the separation of power
 Review (pre Natural Law critique)
 Law is an Affair of Rule
 Key of science of jurisprudence is union of primary & secondary
 Rules has a combination of SC and OT – this is just how rules operate
 This is a good thing and those who sit on either extreme (formalists or skeptics) are wrong
 This allows us to write rules that meet more or less formal standards depending on society’s needs
 Skeptics are Wrong
 Takes law to create courts
 Judges don’t just make law, they invoke the statute – so rules are just predictive
 There is a settled core in all rules and the judges start from that point (and those judges who don’t get
criticized)
 Finality not equal to Infallibility
 Just because a court has a final say-so over an interpretation does not logically destroy the existence of
rules other than the Judge has the final word
 Judges can be right/wrong in the SC (b/c by definition there is a clear meaning)
 Concession:
 In the OT there no right or wrong and here finality does equal infallibility b/c since there is no clear
right/wrong; the “right” answer is logically what the judge decides
 OT Rule of Recognition: We have left open things in our Constitution to make the final
interpretation a matter for judges
 Concession and Criticism
 Hart makes a big criticism of skeptics, but also a huge concession re: infallibility of OT interpretation
 Hart doesn’t tell us how we know what is in the SC or OT
 This will depend on how we think about the rules of interpretation
F. LPs - Hart Ch. 8-9: Takes on Natural Law theory & relationship of law & morality
 Law & Morality - Chaps 8-9
 Paradoxical Statement of Interest
 An unjust law is not law
 What is right; what is wrong about this statement?
 Can we clarify it?
 Ch. 8: Justice - What is the concept of justice
 He is not describing what justice really is, but he is talking about what justice is in our legal system
 What is Just/Unjust
 Fairness - Justice is really about fairness
 Classes of Individuals
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
We are thinking about classes of individuals and their conduct / benefits / burdens
 Moral principle is equality: treat like cases alike and different cases differently
 How do we Apply the Principle of Fairness?
 How does Justice Relate to Law (these are two ways we can critique the justice of law)
 External sense: a critique of law as inherently just/unjust
 Is what the law calls for or forbids just?
 A just law may be unjustly administered
 Likewise there can be an unjust law that is unjustly applied
 Internal sense: a critique of law to describe the application of law as just/unjust
 Is the law applied in a fair/just way despite its content
 Did you get “justice” according to the law (whatever it may be)
 An unjust law may be justly administered
 Internal Sense:
 Principles of Natural Justice: Insure we follow Legal Rules (whatever they are) in a just fair way
 Can’t be a judge in your own case
 Principles we have in place to make sure the system is fair in an internal sense
 What’s the Point?
 We are trying to draw the connection b/t law and morality - justice seems to sit somewhere in the
middle
 What we have here is a correlation that moral discourse bleeds over into justice discourse, and then
justice discourse bleeds over into legal discourse
 But we have not formulated a proof for the requirement that “an unjust law is not law”
 Ch. 8: Obligation: Moral and Legal
 There appears to be a lot of overlap b/t legal and moral obligations
 Obligation:
 Overlap (moral-legal) of Content
 Similarities: (note look out for Hart’s lists - EXAM)
 Obligation-Binding: Actually do create an obligation and are viewed as binding in some sense
 Serious Pressure to Conform: There is both moral and legal pressure in society to conform to
the obligations
 Minimum Contributions: You are expected to satisfy these obligations and you don’t get praise
for regular compliance (this is the baseline requirement for social law)
 Recurring Situations: These are for day-to-day social life requirements
 Necessary for social life (typically requiring some sort of sacrifice)
 You learn how to control your temper, for example
 Differences: (there is space b/t legal and moral obligations - undermining the paradox)
 Internal Nature of Morals: Voluntary violation required
 We often will have strict liability in the legal sense, but moral obligations are not
considered breached if you did not voluntarily do something
 So contrary to legal obligations (with exceptions) saying “I didn’t mean to” is a sufficient
excuse to avoid opprobrium
 It is too hard in the law to untangle the complexity/validity of this type of “excuse” so
frequently the breach of a legal violation is more or less indifferent to your excuse
 Moral Obligations are Routinely Important (to society)
 Many legal obligations are not the type that we can refer to as morally important
 Morals on the other hand are generally regarded as important or valuable
 But see a moral obligation to follow legal obligation?
 Law = malum in se and malum prohibitum; Moral = all malum in se
 Moral Obligations have Immunity from Deliberate Change
 We know how to change legislative rules
 Moral rules are not similarly changed
 Moral rules do change but we don’t think of them as changing affirmatively in the
same manner
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 Is the authority that justifies morality in part b/c the obligations are static
 Social Pressure in Moral Rules
 Shame / Fear condemnation are frequently used in moral obligations
 In Legal Obligations we use sanctions that differ in ways, but may share similarities
 Ch. 8: Morality and Ideals
 There is an Open Texture to Morality
 There can be both an societal morality
 There can also be a personal morality
 Personal Morality
 These things have the same form and function of morality b/c they direct you to do something
 Differ from social morality b/c they may not be compatible w/ overall application to society
 Examples
 A conception of oneself that they are heroic
 They are a scholar
 Someone who loves aesthetics
 Morality Aspirations / Maximums vs. the Minimum Duty of Morality
 There is a general sense that morality sets a minimum threshold of compliance
 There is also a type of “heroic” maximum
 You do get praise for living-up to these aspirations
 Critical Morality
 You stand outside of society and criticize the internal morality
 Critique
 Maybe we need to evolve the social morality - needs to move along further
 Maybe you just think it is wrong and needs to be entirely changed
 Purpose of this section
 Thinking about the many types of morality that exist before diving in?
 Ch. 8: Discussion
 Support of Government
 There may be a moral sense of supporting morality and there may instead be a self-interest in the idea
of why they support the government
 Concession for Sanctions
 Here while Hart is attacking the Natural Law people he seems to concede very much to the idea of
sanctions as important to the qualities of law
 If we didn’t have the law, would we not engage in moral sanctions?
 Also the law frequently leans back on morality (senate censures; apology or show of remorse before
sentencing)
 Moral Rules may not always be important
 Not all moral obligations are “important”
 Does moral “law” supersede and always loom out there above and beyond regular law?
 The NL people claim later that they did not literally mean that “an unjust law is not a law” because this
would both be internally contradictory and a miscontextualization of what was meant
 Could we make this work in a more patient perspective
 Ch. 9: Critique of Natural Law
 Descriptions v. Prescriptions
 The confusion b/t these two is an inherent problem w/ early natural law
 Types
 Descriptive law like “law of gravity” is something that happens
 Prescriptive law like “law of murder” is something we want to happen
 Free-Will
 NL people would say that the distinction is really that one can be broken by free-will and one
cannot . . . yet?
 Core Good Sense of Natural Law
 Minimum Content of Natural Law
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
We all have a natural aim not to die; we all seek this end (the Greek telos) and we can use this as
the minimum content of law
 Hart is not interested in the niche segments of suicide clubs, etc.
 This is not supposed to be a metaphysical thought of what types of ends humans seek
 Hart keeps it simple by sticking to the idea of survival as the baseline
 Medicine Analogy
 The basis for distinguishing b/t healthy and unhealthy is the presumption that the human body
is supposed to keep you alive
 The entire medical profession is based on the idea that we want to live, not die. This is no
complicated moral argument
 We can make the same sort of positivistic thought about morality as starting from not dying
 Aspects of the Human Condition
 Human Vulnerability:
 If we couldn’t hurt one another we might have a different need for moral rules against violence
 Without the ability of harm we might not have rules against violence
 See Bruce Willis Movie
 Overview (Mid-Chapter 9)
 Consider NL Paradox Statement
 Considering Connections b/t Law & Morality
 Let’s be analytical and see where there is and is not connection
 Analyzes “Justice” and how it is used in legal and moral thought
 About fairness
 We have a common language of “justice” in law in morality -- no surprise
 Also there is a common language of “obligation” in both -- no surprise
 These two similarities do not support the notion that law requires morality
 There are several instances of overlap b/t Legal & Moral Obligations
 Change possible
 Importance level varies
 Internal POV not necessary for law
 Minimum Content of Natural Law
 Confusion b/t Prescription Description
 The law of gravity is different from the law of homicide
 Good Sense of NL
 Survival - this is the primary social goal that we can acknowledge w/o much metaphysical
discussion
 We posit this as a goal
 The doctor hypothetical about what makes for a good moral judgment -- judgments that keep
us alive
 This is a fact based thought that w
 Facts About Human Nature (combine w/ facts about survival generate content that law typically
combines) (these are not moral judgments, these are factual reasons people need law)
 1) Vulnerability - We can harm each other so this “fact” seems to mandate laws forbidding
violence
 If we were crab-people w/ exoskeletons then this might change
 2) Approximate Equality - We are more or less equal in ability to hurt each other
 In the greater world we have international super-powers and perhaps this explains why
there is no international legal system, but within those superpowers where there is
approximate equality
 3) Limited Altruism - We are neither all devils nor all angels  If this were the case then we
would not need a legal system at all nor would a legal system be possible.
 We are all somewhere in the middle
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 4) Limited Resources - We all need food, water, etc.; so we need to have law so we don’t fight
over these resources and can survive
 5) Limited Understanding and Strength of Will - We may not always understand what is right
and wrong (meaning we have to communicate the threat of punishment), and also we may
often lack sufficient will to sublimate our anti-social impulses w/o the threat of punishment
 If we all understood the rules completely and if we could all exercise the perfect willpower then we would not need the same type of legal system we have
 These two things together generate the minimum content of the natural law that makes sense
 We posit a fact about the world (survival) with facts about why people need law (5 things) and we
then get a core of good sense about law w/o having to discuss right/wrong or justice/injustice
 NL camp would not recognize this as natural law b/c it doesn’t contemplate right/wrong
 Issues
 Hart wants to emphasize that every legal system has violence-sanctions rules -- but he doesn’t want
to slip into command theory
 He couches this as a natural necessity -- would you support a legal system that didn’t have such
violence restrictions backed by sanction
 This is a natural necessity b/c a legal system w/o this would not be supported
 But this isn’t a requirement for definition of a legal system -- it is just a factual
consequence that always happens (again unless we are crab people and we don’t need these
rules)
 Granted he wants to look at it this way, it is interesting how he pushed sanctions away in his
discussion of CT, but now he is using sanctions as part of his argument that it is a natural
necessity and that there are “analytical differences”
 NL would argue that the primary goal is not survival -- for Americans it seems to be freedom
(better red than dead vs. live free or die)
 Second List (Page 202) - Aspects of Law and Morality that LP/Hart are comfortable with
 1) Power and Authority
 Having merely the minimum content of the natural law isn’t enough -- the legal system needs to
reflect the values of the governed individuals
 I.e., a fundamental population of Islam will need a government that reflects those values in
order to be stable
 2) Influence on Legislative
 The actions of the legislature is influence by moral thoughts
 3) Interpretation (* important)
 There is pushback here, not totally conceded
 In the OT judges are actually having to make the rules, and when they do this they are influenced
to some extent by their own sense of morality
 But judges are supposed to be impartial, supposed to base decision of principles, so this
undermines the argument that judges use their morality
 So you can’t just easily translate judicial morality into interpretation
 In the SC judges are merely applying law
 4) Criticism - The law should be criticized when it is good or bad?
 People criticize law in terms of morality
 5) Principles of Legality (Hart earlier called it natural justice, which meant a term in common English
law talk) (* important)
 There is pushback here on the compatibility with great evil
 If the purpose of law is to guide human behavior, then there are certain things we must do in order
to guide the behavior
 We have to have rules
 Have to publish the rules
 They must be understandable
 Where do we see these
 Void for vagueness doctrine, due process
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


If the law is going to guide our behavior then it is going to have some of these principles
Lon Fuller - Inner Morality of Law (who doesn’t get cited)
 If you have law as rules that will guide behavior then there will be an inner current of morality
such as no ex post facto laws
 These things are built into the law
 “It is unfortunately compatible with great iniquity (evil)” - Hart’s mention
 Rule of law Nazis
 The Nazis guided their behavior by rule of law and procedural due process, even though
the law was evil and sent people to concentration camps
6) That Legal Validity Turns on Moral Value (an unjust law [law lacking moral value] is not a law)
 Why?
 Whole purpose is clarification
 It doesn’t help us understand the law if we identify a lot of things that look like law and
then say that they aren’t law
 Hypo: We have a social group that acknowledges a union of Secondary and Primary
rules, then it will only be confusion if we have a 2d rule saying it is valid, but we then
identify a Prime law as not law b/c it isn’t moral
 If we have Primary Rules that are Legally Valid if Just and Legally Invalid if Unjust,
then there will be confusion about what the law is
 People may assume that a Legally Valid law is just, because it was considered valid by the
courts
 So this is sort of a reversal of the problem
 I.e., Blackstone assumed that if a court found something legally valid, then it must be just
 but this was a reactionary problematic conclusion
 Do we Obey or Disobey
 What is the danger of allowing people to choose to disobey laws they view as unjust
 Well we can’t agree about justice and it will undermine the goal of running the country
 What if you just stopped paying taxes when you disagreed w/ the government
 Anarchy
 Simpler thing is just to say that we obey laws that are ruled Legally Valid under the RR
 If we say an unjust law is not a law then we may conceal the consequences
 Do we Accept Punishment?
 Do we accept punishment
 Do we do it violently or nonviolently?
 Obey or Disobey
 What are the costs of each and how does violence play into this
 See Letter from Birmingham Jail
 So if you have enough thoughts of “unjust law” then you might get enough of a
following and then start to have disobedience building that can serve to undermine the
legal system of change
 Retroactive Punishment
 Hypo:
 Germans after WW2 that we accost for putting people in concentration camps. They
claim that it wasn’t them and that they were just obeying order
 Under morality view we could argue that they shouldn’t have done it anyway b/c it was
immoral
 But this undermines are morality and practicality issues w/ retroactive punishment
 We don’t want to conceal retroactive punishment  if we are going to use it we need to
acknowledge that we are making a hard choice and that although these were valid laws at
the time (under Hitler’s rule) they are so immoral that we are going to permit retroactive
punishment as an exception
 This formulation makes it easier to see that we are dealing w/ complex choices of engaging
in ex post facto law
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 The simplistic effort to couch law as reliant on morality conceals these issues
 Holes in the law
 For example LSD was invented and then temporarily legal b/f a law was written to address
it
 But you might think could we write our laws more broadly to already cover such a social
harm?
G. LPs - Hart: Ch. 10: International Law
 Chapter 10 - International Law
 This is sort of an add-on chapter -- Hart has already addressed his main goals
 Goal
 Is International Law Really Law?
 Should we call it something else?
 Issues
 1) If we think of states as Sovereign then how can we have an international law among them? (no
world sovereign)
 2) There is no central sanctioning body -- no effective sanctions
 Issue 1
 Problem
 There is no international sovereign and the very fact that the international community is made up of
sovereigns
 Hart’s Model
 Social Groups Accept Rules
 Nation states could be the social groups and there could be international law merely b/c nation
states accept rules
 So this issue is only a problem if you are a command theorist
 Issue 2
 CT - Law needs to be an order backed by a threat/sanction
 So if there is no sanction then there is no law
 Social Group Theorists
 Sanctions aren’t built in to the definition of law
 These things can still be analytically classified as law even though there is no sanction
 Why Don’t we Have Sanctions?
 Well the world powers don’t want this to happen yet, b/c they don’t acquiesce
 Maybe we’ll get there one day
 You can still call these things laws
 But there is still a problem w/ no Union of Secondary and Primary
 Union Issues
 No R.R.
 There are Primary Rules in international law, but there are no secondary rules
 This Can Still be Law
 Just because we don’t have a secondary RR, we can still have a legal system
 Are International Laws more Like Law than Morality?
 1) We Don’t Use Moral Language in the Face of a Breach
 We don’t say shame on you, we say this is against the law
 We talk about “international law” like the way we talk/argue as lawyers -- not as people arguing
morality
 2) International Law is Often Filled W/ Malum Prohibitum
 These are rules that are indifferent to morality, per se, and these rules can be detailed, arbitrary and
legalese
 3) We change the law frequently unlike morality (and much more like municipal law)
 4) Also there is no moral obligation necessary in order for there to be international law
 We have a social group, of nations, that accept rules which consist mainly of Primary Rules of Obligations
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 International Law is law, it just looks a little different than the law we are familiar with
 Discussion
 Hart doesn’t address the nature of the “acceptance”
 Since there is no Secondary RR the validity of the Primary Rules is merely a nature of acceptance, and
they only exist until they become inconvenient to obey
 Even social groups in the municipal instance still only accept the rules for less than legalistic
reasons . . . self-interest, habit, morals
II. Natural Law (NL)
A. NL - Natural Law Handout / Introduction
 First Three Quotations
 Thought that there really is an objective morality
 There is a true principle
 There is a duty
 Divine Origin
 Most of the objective duties have some natural origin
 Most people in the NL camp have theological thoughts
 That these are a part of human nature we are supposed to live through as handed down by divine
 Reasoning & Rationality: We grasp these ideas through reason — These ideas are self-evident (you either
grasp it or you don’t  there isn’t a lot more you can say about it to divide it up)
 Quotation Four
 If we move from first principles that are reasonable
 First Principles: whether they are good or bad we then choose/reason;
 Reason: To either Pursue or Avoid
 What our Moral Standards Are:
 We can come up with a list of what our moral standards are based on these things
 Life is a good to be pursed, thus killing should be avoided
 To get these our exercise of reason tells us we need government/law
 How to organize/structure these rules and government?
 Do you want divided government or monarchy?
 Federalism in some places; separation of powers in others
 Decentralized power to avoid tyranny
 Quotations 5 & 6
 An unjust law is not a law
 Well really, an unjust law is a corruption of law / lacks validity or authority
 Why? The purpose of the law is to promote justice, and a law that is unjust perverts that principle
purpose
 There are reasons to disobey an unjust law
 Quotation 8
 How do we deduce Positive Law from Natural Law?
 Some law has a close connection
 Homicide Law: Don’t kill people  Life has value
 Some law has a very loose connection
 Rules of the Road: Drive on the left side of the road  Life has value
 Finnis says this is a question of degree (Nowlin says he thinks he is right)
 Quotation 9
 Where does authority come from?
 If you have the power to act to promote justice for the common good, then you have authority and as a
practical matter people should/will respect/recognize your authority
 This links up w/ unjust law is not a law (i.e., lack of authority) because authority derives from the
power to promote the common good
 Quotation 10
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
Natural law tells us to have a criminal law w/ sanctions (positive law and government) in order to pursue
the common good viz. moral order
 Quotations 11 & 12
 There is often a dispute b/t classes of positivists and classes of Natural Lawyers
 Natural Layers want to consider/emphasize how important moral discourse is to the concept of the law
 They want to emphasize the OT b/c that is where we get to use moral judgments
 Formalists want to focus on the Settled Core (moped has a motor so it is . . . )
 They want the focus on the SC so that we don’t have ambiguity breaking away from the ‘rules’
 Finnis says that this debate doesn’t matter b/c it is really a Skeptic/Formalist debate
 This debate is driven not by Positivist v. Natural Law; it is about Legislature v. Courts
 Robert George: The question of Legislature v. Courts is not a concern of the NL Camp, it is a prudential
concern going back to the idea that we will pick what type of government we want
 I.e., do we want federalism or separation of powers
 This is a lot like the rules of the road as in there is a loose connection to the moral guide so that there is
room for varying types
B. NL - Finnis: Natural Law & Natural Rights
 Finnis’s Goals - To Talk About Unjust Laws
 Finnis is largely responding to Hart
 Hart Misconstrues
 He makes it look like all the NL care about is “unjust law is not a law”
 The main goal is really thinking about morality so we know what the right standards are, then shifting
those thoughts into how we generate positive law/government
 How do we make the law reflect the morality
 When this goes wrong is important, but it is not central as Hart suggested
1. Four Types of Injustice(how laws/acts can be unjust)
 1) Intent
 A government actor acting in some way that is self-interested or not in the common good (i.e., a legislative
bill)
 I.e., favoring cousin bill of legislator jack; or a law that appears facially neutral but is racially unfair
 2) Authority
 Routinely we have rules that set up the structure of government — This is acting/governing beyond your
limits of authority; exceeding jurisdiction
 Healthcare law if you think it exceeds commerce clause
 3) Form
 Does not adhere to the due process of law or the rule of law
 I.e., an ex post facto law
 4) Substantive Injustice
 The Catch-All Category: maybe the government just takes away your right
 I.e., you believe that we have a right to abortions (or other side) and that the government’s actions are
substantively unjust
 We are heading towards what are unjust laws and what is the status of those
2. Four Forms of Obligations
 1) Sanction
 We would identify this with John Austin - This is a type of legal obligation
 I.e., you have a legal obligation to pay your taxes or the sanction will impact you
 2) Social Group Say-So (Hartian ideas)
 There is an obligation just because a dominant social group says you have an obligation
 I.e., the French nationalist w/ a speeding ticket—while we can’t ‘reach’ them—they do have an
obligation under the social group saying they have an obligation
 We have obligations under the US Constitution b/c the dominant social groups says so
 This is an empirical look at things.
 The positivists would stop here (Hart does say stop here, even though he acknowledges that some
people think about this as #s 3&4)
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 Finnis says we can’t stop -- we need to look further into obligation
 3) Moral Obligation to Obey One’s Legal Obligations
 This follows from the Social Group Say-So  When the SG says-so then we have a moral obligation to
follow it  w/o this there would be social disorder / anarchy which is bad
 I.e., “Moral order is good, mmmkay?”
 This is a prima facie moral obligation to obey your legal obligation based on the notion that your legal
obligation promotes justice
 If the law stops promoting justice then your prima facie moral obligation dissolves
 4) Collateral Moral Obligation to Obey Unjust Laws if Necessary to Promote a Just Legal System
 No legal system can achieve perfect justice; if you look at every law in the U.S. you think is unjust and then
don’t obey it then we may move too far towards social disorder
 There is a duty to obey some unjust laws (to an extent) when disobedience would have a collateral
effect on the stability/survival of an overall just legal system
 I.e., MLK seeing the bus laws were unjust, should he disobey it b/c it is unjust or should he continue to
obey it b/c it might promote overall justice?
 If it is a fundamentally just legal system, let’s not take up arms to try and change things (complete
disobedience) let’s moderate our disobedience to encourage reform not revolution
 So 1&2 are linked, then 3&4 helps us think about the impact of those two (sanctions and the say-so of a
SG)
 In these types of evaluations, there is no rule: you have to make a judgment of reasonableness in the
context of the situation (totality of the circumstances)
 Finnis says this is the right way to think about it: by factoring in the morality
 Interactions
 Hart: He says we should just end the discussion at obligations 1&2
 Leave the rest of this morality mumbo-jumbo to the ethicists and political scientists
 Finnis: It is artificial to say there is a jurisprudence of law that can cut out all the normative stuff
 SG Say-So & Morals
 Even this can’t be decided in a purely amoral manner
 The OT acknowledged by the SG in their say-so is dependent on normative/natural law/public policy
concerns
 In legal education we are most concerned w/ the areas that are unclear that ultimately involve
moral questions
 Also, without moral obligations we don’t have something that instructs the society
 So that when society meets these moments of OT they will model their future behavior off their
ideas of what morality in the SC has told them
 Hart’s Response:
 There is value to having a descriptive jurisprudence that discusses the existence of moral lines, but
it is better not to cross the line from descriptive to prescriptive
 Leave the choice of saying what is right/wrong (i.e., taking positions on things) to ethicists and
political scientists
 It is hard enough to get a clear model/system of the what a legal system looks like — let’s not
junk it all up by bringing in normative arguments
 We also might get confused about what is descriptive and what is prescriptive, so it is
better to have separate disciplines
 Finnis: No we need to take a position and be involved in making the right choices
 NOTE: This is the single biggest difference b/t Hart and Finnis (whether we should just describe the
debate or participate on it by its merits)
 Unjust Law is Not a Law
 This statement doesn’t mean:
 That there is no sanction (there is)
 That the social group doesn’t still say so (it does)
 What it means is it is a corruption of law that doesn’t carry full authority:
 There is no Prima Facie moral obligation to obey it
 There may be no collateral moral obligation to obey it
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The individual must make their own determination of the weighty choices of following/disobeying
3. Authority of Rulers
 Authority of Rulers --- Basic Thought
 Order is good; Anarchy is bad  Thus we institute government and law to establish this
 Basic source of authority is power  from power flows responsibility  responsibility to promote and
comply w/ the common good
 We should follow established rules if they exist and what a reasonable person would do is
acknowledge the authority if there is one
 Hypo:
 There is a terrible nuclear disaster and all vestiges of our national government is gone (although the
U.S. Const. is still theoretically in force)
 We should be looking around for someone who can establish order (there are still powers we can’t
trust and worry about them moving in: China, Iran, Russia). There is also the risk of domestic
danger.
 Who has the power to act? Those with the power should act. And we as reasonable people
should acknowledge that power and follow it.
 So if a West Coast alliance was forming, would we as Mississippians acknowledge this (although it
was outside the Constitution) while there are also other governments springing-up in Florida and
Tennessee?
 Well it is a choice of reasonableness
 And what if part of the national government still exists (i.e., the VP is still alive but in a bunker),
then it would look like the budding West Coast alliance was illegitimate and perhaps had bad
motives
 So where we already have an established government or constitution that is actually fairly just, then we
should adhere to it. But whenever it becomes overly unjust or begins to become radically unjust, then at
some point you may have to step out from under it and form a new legal regime based on the idea of
following authority that is authoritative because it has power
4. Deduction of PL from NL
 Natural Law and How it Leads us to Establish Positive Law --- Deduction of PL from NL
 Close Connection
 Loose Connection
 What do we gain when we move from NL (moral norm - don’t kill) to a PL (legal norm - homicide law)
 We gain specifications
 Details (what constitutes the elements and the defenses)
 There may be irreducible moral norms in some things, but w/ homicide we can tie this off
fairly clearly
 Consequences (what the actual sanction/consequence will be)
 This helps to avoid the conduct
 Other Legal Disabilities: I.e., if you kill someone you can’t collect on their life insurance; or
take their inheritance; or if you are a felon you can’t later possess a firearm.
 We gain a new Motive
 It is now against the law and we now have an additional moral obligation to obey our legal
obligation (which adds to our existing moral obligations)
 Imagine it is a more arcane rule like speed limits: the moral obligation is public safety, but the
rule gives you better motivation to obey but setting a clear rule of what is safe (i.e., 18 miles an
hour) -- so you have your general broad idea of the moral thing to do and then by having the
positive law in this “loose connection” area then you have a sharpened idea where the moral
line is and you also have a moral obligation to also follow it
 Sort of circular that you have moral that equals the law, and then you have a new moral to
follow that law
5. Poles of Debate / Features of a Legal System
 Two Poles of Debate - Types:
 Laws as a Coercive Order (Austin)
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 Law as a System of Rules that Regulate their Own Creation (Hart)
 Finnis: These are both good and we oscillate b/t these two
 Re: Hart — sort of paradoxical that we have rules that create institutions that then modify the rules (in
theory there should be no gaps)
 Hypo: Article 7 — When 9 Colonies accept the Constitution, then it comes into effect
 How can a proposal that contains a rule that says it is binding upon a contingency, then it is sort of
paradoxical b/c where do you start? How can article 7 be binding b/f we ratify the Constitution, the
article which tells us when the Constitution has been ratified
 Overview/Review of Finnis
 Unjust Law is Not A Law
 How do you react when you find an unjust/immoral law
 Four Types of Injustice we typically see in legal systems
 Intent
 Authority
 Form/Procedure (the rule of law or ex post facto)
 Substantive Injustice
 Authority - What makes it - Is it an Obligation - Where does the obligation come from
 1) Sanction (Austin’s Theory)
 2) SG Say-so (Hart’s Theory)
 3) Moral Obligation to Obey Legal Obligation
 4) Collateral Theory to Sustain an Overall Just Legal System
 What Do We Do?
 Order v. Anarchy
 Authority
 Since Order is Good & Anarchy Bad
 Thus persons who can establish order, have a responsibility to assume Authority
 This also gives us a responsibility to obey the obligation of their authority
 But if it becomes an authority towards bad then the responsibility fades
 Derivation
 If we think about deriving law from the idea that human life is good,
 Then we can derive the homicide law from this idea closely
 And we can derive traffic laws more loosely (concept of ordered safety)
 Positive law adds to the natural law:
 Specifications
 Sanctions (to help enforce)
 Collateral Consequences (can’t get inheritance from someone you murder)
 New reason: a new moral obligation to obey the law
 W/o specificity, my moral obligation for driving too fast may kick in at 85 MPH instead of 65...
 Finnis Thoughts on how law attempts to regulate itself
 He isn’t too troubled by the coercive order idea
 He is troubled by law’s “bootstrapping”
 Law regulates itself in a form of paradoxical way
 See Article 7 discussion
 B/f the new Constitution (w/ Art 7 requiring 9 states/colonies) went into effect, we had the
Articles of Confederation that required 13 colonies (unanimity) to get anything done.
 This is a paradox
 Article 7, as an internal rule under the proposed R.R., seems to self authenticate in a
paradoxical way
 Similarly the Supremacy Clause is somewhat “self-authenticating” or makes a power statement
that is self-reinforcing/self-authorizing — but it is not really self-authenticating b/c what is
requiring for a test of validity
 Rules Talk about Rules; Rules talk about institutions; and Institutions talk about rules
 Discussion
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Conflict Over What to Call “Jurisprudence”
 Hart says that 1&2 above are for legal theory, and that 3&4 are for moral philosophy of political
scientists and ethicists
 NL argues that this is all mixed in and there is no real line differentiating empirical Hartian
observations and moral assessments
 Hart was worried about confusion by entering this realm, but many thinkers don’t seem to be
confused (MLK doesn’t look confused; Finnis doesn’t look confused; authors of the
Declaration of Independence don’t look confused).
Fundamentally Unjust Legal System
 In these types of circumstances, number 3&4 collapse on one another so we aren’t asking 3) is it
moral to follow and 4) is there a collateral necessity — instead we are asking morally if we should
break out from the legal system by starting new government
C. NL - Declaration of Independence; Birmingham Jail
1. Declaration of Independence
 Why do we Have Government
 To encourage life, liberty, etc.  but when it stops promoting these ends and becomes destructive then
it loses its authority
 How Does Dec. of Indep. Look Like Natural Law
 What Justified The Dec. of Indep.
 They try to prove that King George III had the intent of a tyrant and wasn’t aiming to improve the
common good
 American Colonists thought that they had certain colony rights under the unwritten constitution of
Great Britain, and that it was an usurpation of authority when King George dissolved Va. Legislature
 Others having to do w/ power of judges and people subjected to “mock trials” — judges who
follow King George despite what the law says
 This leads to procedural and substantive injustice
 King George was conscripting mercenaries and was causing insurrection — waging an unfair fight
 Taxation w/o Representation — this is a thought about the power of British Parliament and an
usurpation of authority and an unfair exercise of form or procedure.
 What Did we Know About the Authority we were Breaching?
 1) Sanctions: We knew there were sanctions that we were subject to for signing the Dec. of Indep.
 2) Social Group Say-So: We knew there was a dominant social group in England that thought we
were subject to their authority; That there was a dispute over interpreting the unwritten British
Constitution
 3) Moral Obligation to LO: This is pretty easy to assess
 4) Collateral: There is so much British tyranny that we think the cost of social upheaval is worth
trying to throw off our tyrants.
 Weighing all these things, the Dec. of Indep. found that rebellion was justified
 Contrary to Hart’s fears — there was not really any legal confusion about the issues when the founding
document of our Country contemplated ideas of morality
2. Letter From Birmingham Jail
 Goals
 Use this to think about John Finnis, and Natural Law Thinking
 Unjust Law Not Law
 King squarely addresses what he believes to be the fact that Just law is in accord w/ the existing law of
divinity
 Types of Injustice
 King sees many forms of injustice including authority and form in the sense that blacks couldn’t vote
for many of these leaders and acts that were harmful and that the leaders had no authority to exercise
this segregation on blacks
 What Does he Think About the Authority-Obligation
 1) He knows there is a sanction
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2) He is aware that the majority social group thinks it is law
3) He knows the laws are unjust
4) This letter is primarily about are the injustices so great that we should break the law and cause
discord
 This letter explains the why and the how of the strategy of civil disobedience
 MLK thinks the American system is a good system so he is especially concerned w/ the collateral
effects because he doesn’t want to destroy it entirely
What Does King say About Unjust/Just & Order
 He is in the Middle: He is stuck b/t the groups who want violence and the groups who want to ignore
the problems and be complacent
 We can’t maintain the status quo and if we do nothing the black community will shift to violence
 Function of Civil Disobedience
 It will spur on debate and negotiation by forcing us to confront the issue through boycotts, sit-ins,
walks—causing tension.
 Tension is a good thing to MLK
 Maintaining Order
 The civil disobedience helps to maintain order b/c they accept their punishment
 Those who are breaking the law are those in defiance of Brown v. Bd. of Education and others
who are purveyors of segregation
Four Steps to Determine if We Should Protest?
 Is there factual injustice
 Self-purification: Can I meet the injustice w/ a non-violent response?
Hitler Comparison
 MLK essentially compares the White Moderates afraid to break the law to those who were complacent
with Hitler and his conduct
 King says he that there are clearly justifiable situations of breaking the law, and that this is one of them
b/c there is gross injustice
 Also compares himself to other extremists like Jesus and authors of the Dec. of Indep.
Be mindful of two currents w/in the concept of law: that a law can have a just/unjust purpose or content,
and that a law may have an entirely separate just/unjust administration
Confusion
 MLK is not confused about things; he is not confused with what “an unjust law is not a law” means; he
understands the need to balance disobedience w/ the issues of sanctions and social groups
 This suggests that Hart is wrong when he asserts the NL paradox breeds confusion
D. NL - Finnis: The Incoherence of Legal Positivism
 Why is It Incoherent?
 What does it Mean to Say something is Posited?
 Hypo:
 Text: No Vehicles in the Park
 Policy: Want people to use the park but also keep it safe and peaceful
 Exclusive v. Inclusive LPs
 Exclusive: The only thing that is the posited law is the text of the law (not the policy b/c it isn’t the text)
 Think that judges are making law inappropriately when they use policy — thus the judges aren’t really
engaged in the law
 Inclusive: The text is definitely positive law, but the policy when it is really clear and integral to the text of
the statute is also positive law
 The judge under these theorists’ thoughts will look to policy in the harder, OT cases
 Problems With Both
 Exclusive
 This fails to take into account that when judges are interpreting statutes, they aren’t really making new
law
 They think everything judges do at the COA level is really legislation — yea right
 Inclusive
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And that for the inclusive LP, this is merely what lawyers describe when they are embarrassed to admit
what they are doing when the integrate the policy ideas
 They ultimately are in the NL camp even though they claim not to be
 Second Big Thought
 Example: MLK and Mandela clearly know that there is (1) a sanction for disobedience, and (2) a dominant
social group that says-so. Everything they care about has to do with (3) moral obligation, and (4) collateral
effects
 LP attempts to answer questions 1&2, that no one cares about — they say go talk to a philosopher
 NL tries to answer these hard questions that people want to understand
 Overview/Review (Mid NL & Incoherence of LP)
 Natural Law Theorists - Single Biggest Thought
 They want to think about justice & injustice about how we should then evaluate government & laws
 When there is Injustice it can be in the form of:
 Intent, authority, manner or form, and substantive (basic issues of liberty & equality)
 Injustice affects Obligation
 Power = Responsibility to Act + Authority conferred by people following
 Types of Obligation
 Sanction, Social say-so, MO to follow LO (unjust = no MO), then collateral MO (support a legal
system so it doesn’t fall apart - MLK)
 Contrary to What Hart says, many people are not confused by the introduction of moral questions (i.e.,
MLK)
 Finnis & the Incoherence of Legal Positivism
 Two Basic Thoughts:
 1) LP has nothing to say to those confronting an unjust legal system (Mandela and apartheid; MLK and
segregation)
 LP claims to want to talk about obligation, but only addresses sanctions and social say-so
 2) The problem of Inclusive (soft) and Exclusive (hard) Legal Positivists
 Inclusive/Exclusive LP
 What is Posited?
 Text of a Statute: clearly this is posited (both inclusive & exclusive would agree)
 Policy of a Statute: depends
 Say the policy of “no vehicles in the park” is safety; is it part of the law?
 Exclusive: Policy is not positive law, and is only positive law if it makes it into the statute
as a statement of purpose or something similar
 Inclusive: In some sense the policy can be so clearly implicit in the text as the reason for
the text that the policy is positive law
 Advantages to Differing Approaches
 Exclusive: we get a really clear view of what is positive law (excludes moral policy)
 But the cost is that when a judge gets a hard case, then the judge will resolve the case by
“making” law on what is not considered “legal” reasons. They will say that he in effect made
new positive law (he legislated)
 Inclusive: We don’t have the problem of saying all OT decisions are “making” law and this is truer
to the internal POV of many judges (includes moral policy)
 But the cost is that these people are relying on moral reasons that animate the statute, so in
effect the inclusive legal positivists are really just NL people who are afraid to admit it.
 And it also is less clear what the positive law is
 LP is incoherent b/c they can’t decide what their own answer is (b/t inclusive and exclusive).
 If they pick exclusive then they improperly categorize most of what COA judges do as
legislating
 If they pick inclusive then they are basically adopting NL
 Also, LP don’t tell people how to react under the unjust legal system
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 LP Theoretical Response
 LP only set-out to give a descriptive account, and said they were not attempting to answer moral
questions
 There is nothing incoherent to have merely a descriptive analysis of legal obligation
 Hart is not incoherent merely b/c he had a limited goal and some would prefer he had a wider goal
 Might also argue that the inclusive/exclusive conflict is a dogmatic forced choice
 When you are engaged in descriptive legal conceptualization, then it makes sense to consider that
there are both exclusive and inclusive situations
 The judge can often engage in both these things at the same time (this is sort of a half-empty halffull argument — both are right)
 These are two different ways to talk about the same reality, one just obscures some aspects of
the legal system that the other reveals
 To have a truer understanding we need to contemplate both of these simultaneously (we never
always say the glass is half-empty — nor do we have to choose)
 There is merely a disagreement in LP camp about how to describe the same legal reality
 Pattern b/t Hart and NL theorists
 They are attacking each other for not engaging in the same projects (i.e., Hart attacked for not
asking the same questions as Finnis).
 Also seems to be some misunderstanding about what the other means: Hart misunderstands what
the NL theorists mean about justice/injustice; Finnis seems to misunderstand what Hart means by
obligation as descriptive
E. NL - Fuller
 Lon Fuller
 Review Hart at 206 re: Principles of Legality and Justice
 Hart admits there are principles of legality of justice, but that this theory is compatible with great
iniquity
 It is possible to imagine an evil regime that is procedurally just, but substantively unjust
 Thus, it is strange to call such evil promoting elements the “inner morality of law”
 Legality:
 The Rule of Law (due process in American legal thought)
 Fuller & Inner Morality
 Finnis calls the manner & form inner morality; everything else is external/outer morality (intent,
authority, substantive)
 Fuller - Why is Fuller concerned with the inner morality of law
 Distinguish Morality of Duty and Morality of Aspiration
 Duty is minimum you are not supposed to fall below (don’t kill); Aspiration is the thing we aim for
(give some money to charity)
 Purpose of Law (not justice as Finnis say) is to Guide Human Behavior
 Eight Principles of Inner Morality of Law are the various levels of aspiration
 You don’t have to have them all, and you usually won’t, but you aim as high as you can and try to
give the most justice by meeting the most of these aspirations
 Eight Aspirational Principles of the Inner Morality of Law (i.e., aspirations leading to due process)
 1) Must make Rules
 2) Must publish the rules or communicate them in some fashion
 3) Prospective, not retrospective (if we want to guide behavior then we have to tell them in advance)
 4) The rules have to be understandable so that people can follow them
 5) Stable, if the law is changing constantly then people will not be able to keep up with it
 6) Rules must be coherent (non-contradictory) (so you can’t have multiple courts / authorities telling
you different things)
 7) Capable of compliance (must be able to actually obey the law — it can’t ask you to do things that
are not possible)
 8) Administration in congruence with the written standard (laws vs. their application)
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 Review
 Basic purpose/aspiration of law is to guide human behavior
 To guide human behavior we have a list of eight factors that we aim for, we don’t get them all, but
if we have massive failures in some we may not have a just legal system
 Idea is that these are internal to the meaning of law, since law is a system of rules guiding behavior.
 In order to have any substance, we need an underlying grid that works
 Individual vs. System
 Fuller is having a systemic thought about an overall legal system
 There could be singular laws that may fail these aspirations, but he is thinking about how the whole
system works
 Fuller says “Rex never made any law during his life” because there was never an inner morality of law
 This type of statement drives Hart crazy
 This is somewhat an overstatement, but is a definitional proposition that without inner morality of
law (which is composed of the 8 aspirations) then substantive laws in the system are not law
 But Fuller is not telling us how he feels about the dramatic overstatement of “an unjust law is not a law”
 Fuller & Reciprocity Consistent w/ the inner morality of law
 If the government is to appropriately guide behavior, then there needs to be a reciprocity b/t the
government and the citizen
 If the government has secret statutes, or if the government doesn’t enforce all statutes, then the
citizen will not be effectively engaged in an obligation to obey
 Compatibility w/ Iniquity of Inner Morality of Law
 Fuller: it is not as compatible as you might think
 1) IML is a precondition to OML: so we have to have an inner morality b/f we address an outer
morality
 I.e., law is a precondition of good-law — we can’t have a good legal system until we have a
legal system
 Fuller argues that big parts of the world would benefit even from the introduction of law in and of
itself!
 I.e., Somalia needs a legal system at all instead of just fighting war lords
 2) Hart fails to grasp that a breakdown in the IML (inner morality of law) is a type of legal pathology
 For Hart Legal Pathology was disagreement among social groups re: the validity of the R.R.
 Why is absence of IML a pathology?
 If a legal system’s central purpose is creating order by laws and guiding behavior (even Hart
agrees this is the central function of law: guide for puzzled man)
 Then without a smoothly operating system we cannot achieve these goals
 IML is necessary but not sufficient for OML
 Hart should recognize this b/c he too believes that law is designed to guide behavior
 For Hart, since the key to understanding law as a guide is the Union of an affair of rules
 Then it makes sense that when the rules break down internally then we have a pathology
 3) The IML influences the OML
 Elbows v. Fists
 Hypo: Jewish store owners had to put signs in their windows not by legal requirement, but by
an unwritten assertion by authority figures
 These were “non-law” that were not published
 If this type of law were really in the statute books then it would be more visible what the legal
system was really doing
 It would cost the government to do this explicitly
 White Moderates are the Elbows that obscure the system (although they are not lawmakers)
they in effect obscure the problems with the system by negligently harming you instead of
directly harming you
 Thinking about the pattern of sniping b/t Hart and Fuller
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Is Fuller’s IML of law merely picking up where Hart left off in not defining what makes a R.R. valid
(and also that it left out the pathology issue b/c Hart didn’t address the inner complexity of social
groups rejecting a R.R.)
 So is breakdown of the IML a (also OML can be a prerequisite) prerequisite leading to (but not always)
Social Group rejection?
 Fuller & Nazis
 Hypo: In Nazi Germany suppose you speak out about the evils of Nazism.
 Theoretically you might get tried (fairly at that) for Nazi treason and put to death
 You also might just get assassinated (and it might later be authorized by the “law”)
 To Fuller this is a type of legal pathology that is not social group disagreement about the R.R.
 It is the legal system falling apart
 Why doesn’t Fuller just admit or address the most central aspect of NL Theory: unjust law not a law?
 Well he may be trying to avoid the NL issues b/c when he is writing (unlike Finnis) NL is in bad
shape and heavily associated with Roman Catholic Church
 Lon Fuller - Review / Revisited / Finished
 NL Camp Person  But he is a non-traditional NL theorists (procedural NL person b/c of emphasis on due process/rule of
law: the inner morality of law)
 Eight Requirements for Inner Morality of Law
 Have to have rules
 Have to publish
 Prospective
 Consistent
 Capable of compliance
 Stable
 Congruently applied
 Must be understandable
 These aren’t about duties, but about aspirations
 These aspirational matters of degrees not absolutes
 Compatibility w/ iniquity
 Hart counters that inner morality of law is compatible w/ great iniquity
 Fuller said that this inner morality is a morality of its own and that it is not so compatible w/ great
iniquity
 Internal to guiding someone’s behavior—in any direction be it good or bad—then you have to have
these eight qualities of IML in order for there to be effective delivery of behavior guiding rule
 The outer morality of law is all the substantive things in a legal system
 Other Thoughts
 You have to have law as a precondition to good law
 Without IML rules, then you can’t possibly have good law b/c nothing is there (no
structure) to move you towards a legal system
 IML of law affects the OML by making us articulate the rules and thus be subjected to
criticisms (affects both intentional wrongs [fists] and unintentional wrongs [elbows])
 Example was Nazis requiring by “unofficial rule” that signs be put in Jewish shops.
This was never part of the German penal code b/c doing so would alert foreigners of
the evils of the OML
 Breakdown in IML is a pathology
 Even Hart should recognize this — he only recognizes a breakdown in recognition of the
R.R. as a pathology
 S.C. nullification example  Classic Hart pathology
 To Hart, law is about the union of primary & secondary rules
 Hart wants to push sanctions to the perimeter and bring law as a guide to the central
part of his inquiry (law as a guide not a goad; law for the puzzled man)
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 If the Key to understanding is this union of rules, then a IML breakdown is a pathology b/c
this union is being undermined
 If Hart is so concerned w/ the puzzled man, then he should realize that a breakdown in
IML will fail the puzzled man seeking guidance
 If a legal system is going to meet these requirements of guiding human behavior w/
rules, then a breakdown in IML (which is the delivery mechanism for behavior guiding
rules) is a pathology of a legal system b/c it undermines the main goal of a legal
system
 Nazis Thoughts on who is right: Hart / Fuller
 Rule of Law Nazis
 Hart says there were “rule of law Nazis”  Conceptually
 Hart is mostly conceptualizing that we could imagine such a Nazi legal system

 Fuller says there were no Rule of Law Nazis  historically
 Finnis has a thought too but it is better
 Fuller says that Hart’s Nazi Germany looks like Nazis applying English law  but really
the system was far more broken than that and they didn’t really have a full scale legal
system
 They had a shell legal system that they applied when it was convenient
 Also think about the fact that these Nazi types of laws basically made it illegal to be Jewish,
so meaning that there wasn’t adherence to the IML
 Finnis Think about ROL Nazis as terms of justification or a moral reason/justification for
action
 If ideologically you are committed to German Dominance, then you don’t have any moral
reason to adhere to the rule of law
 The Nazis weren’t concerned about the Rule of Law, because they would never exist as
a matter of moral reason for adhering to procedural IML
 If you are committed to human rights violations, then there is no reason to believe that
you would also adhere to the [procedural law? IML?]
 What would be Finnis’s point that he draws from the Nazi experience re: American slavery
 It would be no surprise that we had violent defenses of slavery, b/c if you are
committed to substantive injustice then you will breach procedural IML as much as
you need and when you need in order to preserve your substantive OML
 Feels that Fuller’s narrow conception of IML as a concept of justice is too narrow, because
substantive and procedural justice are interconnected
 Fuller can’t see this connection b/c he views procedural and substantive as traveling on
separate tracks; not as two currents running parallel.
 If you are the type who thinks everyone has rights substantively, then you are likely to
adhere to procedural ideas of justice
 Others:
 What about when government messes with categories
 Taxes sometimes used when we don’t want to criminalize something (smoking/vice
tax)
 Criminal law sometimes used to raise revenue while discouraging behavior (speeding)
 Fuller: Conception of the Individual Built into the IML
 B.F. Skinner - Thinks we don’t really have free will (determinism) (rat in a maze)
 This is opposite to the idea of the Concept of the Individual built into the idea of the IML: ideas of guilt,
innocence, fault, intent
 There is a conception of people as having a moral choice and a dignity to comply
 Counter-argument for Skinner is that like a rat in a maze, maybe law isn’t a guide for the puzzled
man but a goad for the rat (shock him so he turns left not right)
 Fuller: Minimum Content of NL
 We shouldn’t emphasize survival
37

If all we wanted to do was survive, then we would live very differently (i.e., never sail your ship
out of port if you don’t want it to sink)
 So we have an interest in survival, but also have an interest in doing something else
 Hypo: During Cold War we lived w/ the fear that there could be nuclear annihilation
 If we really cared about survival we would have surrendered
 So not “better red than dead” but “live free or die”
 We should instead emphasize communication (not just living but living well)
 Fuller has four parts of his argument,
 Nazi Informer Cases
 Fuller in Patterson book
 Facts: Persons were being prosecuted under old German statute (post Nazi) that made it criminal to
have someone illegally put in jail
 Earlier, during WW2 several people informed on people for “treason” when they really just didn’t
like the person to begin w/ — this was just a good way to get rid of them
 After WW2 they were prosecuted under the old statute
 Issue: Was it “illegal” in the post war period to have abused the Nazi treason statutes that were in effect
at the time they were used  was the use of the Nazi treason laws a lawful procurement of
imprisonment or an unlawful procurement of imprisonment
 New Player: Radbuch
 He argued that the old laws were still in effect and that punishment in post-WW2 was proper
 Hart:
 The problem with saying a Nazi law was not a law, is that we are either enabling retroactive
enforcement or we are hiding the moral dilemma of allowing scurrilous people go
 This is a choice and we have to make a choice — Hart thought the situation justified retroactive
enforcement, but that we just need to admit what we are doing
 This creates confusion and conceals the real moral issue b/t should we or shouldn’t we apply
retroactive punishment
 Fuller & Radbuch are not confused (see pg. 103-04 of Patterson)
 If you just read Hart, you would get the wrong idea that the German treason statutes had IML
(these laws weren’t clear, weren’t necessarily published or enforced correctly)
 These statutes didn’t even really seem or look like rules/laws  and weren’t applied like rules
 He isn’t saying that people just shouldn’t have followed these rules b/c they were immoral  he is
saying that the rules weren’t really even rules and that for that reason alone we shouldn’t have
followed them
 What did they want?
 They wanted legislation declaring the Nazi treason laws weren’t laws b/c this will maximize
the clarity of what judges are doing when they rule these were illegal procurements of
imprisonment
 Unclear though among these theorists if this would in fact be creating retroactive
punishment, or if based on the earlier statute it was against the law all along
 But this in some ways may not really be a confirmation of what the judges are doing, but
makes it look even more like an ex post facto law
 Typical German Court Resolution
 Reasoned that there was no requirement of compliance (i.e., you didn’t have to report treason), so
if you voluntarily reported someone then that was an illegal procurement
 Radbuch & Fuller think LP allowed Nazism to come to power
 Germans had been heavily adopting the idea that the law is the law is the law
 Different Views
 Radbuch: LP led to Nazism (I was there)
 Fuller: It is possible (but I wasn’t there)
 Hart: This is outrageous that English LP could be applied that way
 Arguments
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

Radbuch: Judges were taught to accept the law as given down from on-high -- questions of justice
and injustice are not questions for judges and lawyers; we are merely cogs in the machine
 So there was no pushback by members of the justice system
 Hart: LPs never said you shouldn’t ask the second question of if the law is just or unjust. LP is a
conceptual model for the law; Nazism came about because Germans were focused on
nationalism/fascism?
 Hart is too polite to say it: but he is implying it was the Germans and Austrians who allowed
this to happen by favoring a strong nationalism concept in its thought
 Also, why didn’t English LP cause fascism in England? Well because it was other factors in
the German culture that caused this
Thoughts:
 Many facets of society lined up behind the Nazis (for whatever reasons), not just the German
lawyers and judges who had LP education.
 Also, people in England didn’t take their theories as serious as the Germans did (they treated
theories dogmatically)
 So the liberalism of the LP theory (as used in England) perhaps go lost in translation b/c
Germans didn’t like liberalism of thinking about theories
 Hart: Maybe we should ensure our judges and lawyers are educated in moral philosophy, w/o
necessarily confusing it with what the Law is
III. NL & Adjudication (NL & A)
A. NL & A - Hart; NL Handout; Finnis . . . Fuller on Adjudication; Dworkin (Patterson)
 Hart
 There is a SC & an OT
 SC has right answers and the judge just applies the law and can be wrong (i.e., judge can get it wrong
by misapplying the law)
 OT there is no right answer and the judge has to create/posit the law and the just can’t get the law
wrong b/c it is his interpretation (there is no preexisting correct answer)
 Legal Formalists
 It is all SC
 Legal Skeptics
 It is all OT
 Exclusive Legal Positivists
 Hart sounds a lot like an exclusive LP b/c he thinks the judge applies the law in the SC, but the judge
posits the law in the OT
 Morality-Interpretation (plays a role here)
 In the OT (positing) morality of course plays a role here (and this is the proper place for it)
 Morality plays a role in the same way that it does for the legislature
 So this is where policy thoughts come in for the judge to determine the law (same as for the
legislature in making the law)
 Some are reluctant to call this judicial legislating (and we might should be too) b/c the judges retain
judicial legal virtues/methods (characteristics differing from legislating)
 Judges will be impartial; they will attempt to be impartial; they draft opinions (unusual that
legislature includes an explanatory preamble)
 Thus judicial positing of law differs from legislative positing
 Finnis
 Handout of Quotations
 #10 - What does the NL theorist want to do:
 Want to tell us about good/evil and justice/injustice so that we can institute PL
 They are talking to citizens, legislators, and also judges (under the assumption that
adjudicative/interpretive decisions get to rely on policy somewhat)
 #11 - How open is PL to NL theory (Hart’s terms - is the SC big & OT small, or vice versa)?
 Meaning that the area where judges make policy decisions bigger or smaller
39

Finnis says we don’t really have an opinion on this and aren’t concerned with it;
 This is really just a debate about whether legislature is big and judicial power small, or vice
versa.
 So if SC is big, that means that the legislative power is big, and so on
 Modern Terminology
 Big Const. SC - we call originalists, strict constructionists
 Big OT - we call them judicial activists, etc.
 NL doesn’t tell us precisely how to organize our government, it just tells us to be prudent in doing
this so that there is an absence of tyranny (we don’t get a map of the exact balance of powers)
 #12 - Legislative power v. judicial power is not settled by the NL
 Just make it a good one
 Finnis: 136 of Patterson
 Exclusive v. Inclusive LP — What does it mean for something to be posited?
 Categories
 Exclusive - Text has been posited but policy is not posited
 Inclusive - Text has been posited, but that the policy may also be considered posited as implicit
 Examples: “No vehicles in the park”
 Exclusive: No policy of safety has been posited
 Inclusive: The policy about safety may very well be viewed as implicit
 Criticism
 The LPs can’t even agree about what it means to be posited
 Upside of Exclusive - you get a sharp distinction b/t PL and NL (a positivist wants that
distinction to be sharp)
 Inclusive get a blurry line b/t PL and NL
 Downside of Exclusive - you put a wedge b/t PL and what courts do
 Since courts frequently look to policy, this means that most of what courts do is make stuff
up (putting on his deputy legislator hat)
 Inclusive - There is no wedge so how we describe the judicial process is a realistic description
of the process
 Fuller: Patterson 108-12
 Criticism of OT & SC
 Although Hart generally says there is a word that is in dispute
 But usually there is
 Contrary to what Hart says, the SC is not where the law is posited
 According to the Exclusive framework, the SC is not itself even posited
 Hypo:
 Guy w/ 18 wheeler runs over kid in the park
 Is it a vehicle in the park?
 The SC (not entirely) but usually is being evaluated by what the NL thoughts are of the legislature
 The statute didn’t describe what a vehicle is, but we know an 18 wheeler is a vehicle b/c we
understand the purpose of the statute
 We know the “SC” b/c we are putting the text in the policy framework (contrary to what the
Exclusive think)
 This means that a lot of what defines the SC is not the fact that it has been posited, but b/c we
have a general understanding
 Problem - This expands the wedge so large in the Exclusive camp that it means the theory b/c silly b/c
the amount of law being posited is very small
 In the SC, now, we might think that there is no wrong answer b/c getting the answer wrong would
purely mean a wrong policy choice of the judge (who would think that the policy of the statute would
allow an 18 wheeler in the park)
 If you have to think about the policy/objective of the statute to understand what parts of its
otherwise SC means, then you are not relying on posited law (the statute’s terms were undefined)
you are instead relying on an assessment of the goals of the statute in order to define the words
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 Hart Theoretical Reply
 Well this isn’t such a big deal b/c sometimes he applies exclusive and sometimes inclusive
 He would describe what he is doing is merely describing the circumstances as they exist
 That sometimes law intends to set an “open box” standard where you have to inflate it with OT
interpretation
 Maybe instead of SC = applying posited law; and OT = positing law — instead maybe SC just means
this is where we agree there can be wrong answer, and OT means where there can be no wrong answer
 Dworkin: Patterson
 Contrasting Hart & Dworkin: Understand the differences in their projects
 Hart: LP doing description (conceptual look)
 Interested in the legal system as a whole -- wants a conceptual roadmap
 Hart is always thinking about the English legal system
 Dworkin: Non-traditional NL theorists (modern welfare state liberalist) - but he emphasizes morality
on the interpretation of law (he is engaged in a prescriptive enterprise)
 He is attacking Hart harshly
 He is mainly interested in how judges resolve cases (adjudication); how judges make decisions
 Dworkin is interested in the American legal system / constitutional law
 He has a very political agenda of defending the Warren Court (thus why Scalia is a bad Justice)
 Vocabulary
 Hart
 SC & OT
 Dworkin
 Easy Cases (know it’s easy b/c it doesn’t produce disagreement) & Hard Cases (know it is hard b/c
it produces disagreement)
 Problem with Hartian Classification
 In the OT the judge is characterized as a deputy legislator (judge is amending the statute in this
area)
 Dworkin - this is never the case b/c judges are doing what they are supposed to do
 Whether it is an easy case or a hard case:
 What judges do is interpret the law and get the right/best answer implicit in the law
 Easy case we interpret the rule and agree
 Hard cases we interpret the rule and disagree about the answer, but it is still interpretation
and not merely making up the rule
 What’s the point of Dworkin’s classification
 He is trying to argue that judges aren’t just making stuff up — they are always interpreting and
choosing the right answer based on principle and policy
 Dworkin wants to push-back against conservatives who think that in the SC judges should never be
making things up
 Why Dworkin Doesn’t Like Idea that Judges Make Law
 Preemptive Hartian response: Dworkin is just putting spin on the language; my (Hart’s) goal is not
to make judges feel good about what they are doing
 1) Doesn’t fit the Internal POV of judges - They believe they interpret
 Their point of view is that they don’t make things up — that isn’t how they think
 2) Inconsistent w/ Structures like Separation of Power & Democracy
 He doesn’t want to describe judges as “making stuff up” b/c this infringes on legislative power
 Also we don’t elect judges and this is inconsistent w/ our conception of democracy
 3) Ex post facto problem
 If we say judges are making things up, then they would be routinely applying ex post facto laws
and punishments as they “make law” under the exclusive branch
 But if all they are doing is interpreting then that isn’t so much like ex post facto
 Hartian Response: This is there even in the OT and we either live with it or not
 4) Interpretation - What does Dworkin mean by this?
 Interpretation has two aspects
41
 (a) An aspect of description (Dworkin calls it fit), and
 (b) A normative aspect (Dworkin calls it justification)
 When we are presented with a job of interpreting we must ask
 Does it fit the legal materials?
 If we get more than one answer, then we pick the one that is the most normatively
attractive answer (the one that makes the legal system the most just it can be)
 Hypo:
 Suppose instead of law we have a nice pastoral scene painting, but there is a big hole in the
middle where it is incomplete: You must complete the painting
 So you must decide (1) what fits the hole, and (2) what makes the painting the best it can
be (the aesthetic justification of beauty might be a good justification)
 So some things wouldn’t fit: bat-signal, lady gaga
 Some things will fit: a bird, sky, a cloud
 Then decide which one justifies the aesthetic beauty of the work
 In the legal system some things will fit and they will also then satisfy a justification (justify the
legal system)
 So:
 Either only one answer fits (easy case)
 Or out of the multiple answers that fit we have then choose the answer that justifies our idea of
the legal system (hard cases)
 5) There is a right answer
 Something out of the combinations of fit and justification is a right answer and best fits the legal
system
 Hart would say, no there is no right answer in the OT/Hard-Case area
 6) Litigants have a right to the “right” answer
 We miss something about the law if we don’t understand generally that if we believe there is a
“right” answer out there, then litigants have a right to get the “right” answer
 7) Courts are a Forum of Principle not Policy
 He is saying that the method we engage in (fit & justification) is a matter of principle not policy
 Hart: In the OT we just do the best policy
 When someone is in a court they are asking for their rights under the law, so we are supposed to
find and vindicate those rights as a matter of principle
 So we aren’t looking at overall social policy, but the rights of the litigants as a matter of
principle
 8) Any “discretion” that judges have, is weak discretion (not strong)
 Contrast with Hart: the OT discretion is strong discretion and can do whatever they want as deputy
legislators
 The discretion that the judges have in Dworkin’s mind is limited by methods of interpretation
 Judge isn’t just making the answer up as a matter of policy
 Judge has only the weak discretion that exists as a matter of interpretation (not the strong discretion
that comes with legislation)
 9) There are Legal principles that govern cases and are not traceable to a master rule (RR)
 Hypo: If you are a criminal you want to invoke the rule of lenity
 This is a rule that is enforced by judges even though they don’t really know where it came from
 There are background principles of law that are not positivistic and cannot be treated as such, but
they exist nonetheless even though they cannot be traced back
 Discussion
 What does it mean to say there are “right answer” when you are revolving around fit/justification
 Well that sounds like a belief in an objective morality that Dworkin won’t admit to
 If you are a moral skeptic then you see there being no “right answers”
 Say you are a liberal judge in Nazi Germany
 How you do function when the legal system rejects many good answers on “fit” grounds, and then
you are left with trying to manipulate your answer on justification grounds
42


 What if all the “fit” answers are morally dysfunctional? Well it becomes hard/problematic
Hart Response to 2&3
 This is Dworkin’s “spin,” and we recognize that this is what judges do to an extent in their rule
making responsibilities
Principle not Policy
 Dworkin has a normative point of view, but this is not what judges really do
B. NL & A - Hart & Dworkin
 Hart & Dworkin
 Review
 Hart is:
 Descriptive; Positivism; he Criticizes LS
 Agenda is for clarity
 He has the British legal system in mind (there is no supreme constitution that judges can use for
expanded power)
 Dworkin is:
 Normative; NL; Adjudication is a focus of his
 His agenda is about American Constitutional Law & Warrant Court
 He has the American system in his mind
 Dworkin List of Hartian Problems (problems w/ thinking like Hart & his system)
 Aside
 Hart says we have an OT (create) & SC (apply)
 Dworkin says we have Easy & Hard Cases — but in both areas judges interpret
 Both are interpretations and one area just creates disagreement and one doesn’t
 1) Doesn’t fit internal POV of judges
 2) Inconsistent w/ democracy and separation of power
 But if they are interpreting the binding constitution then this is w/in their power
 3) Would be ex post facto
 If we are interpreting what is already the law then no problems
 4) Misunderstands the interpretive model
 We have Fit first, then moral Justification
 Fit = Descriptive; Justification = Evaluative, moral aspect
 5) Right Answer - Even in a hard case there are “right answers” and a judge who correctly mixes Fit
and Justification gets it right
 At a minimum he seems to think that for judicial discipline it is good for them believe there is a
“right answer” that they should seek to find
 A more literal view is complicated and perhaps paradoxical b/c if you are saying the right answer is
what lawyers and judges think, but that there can also be a right answer in the “hard cases” makes
one wonder how can there be a right answer if the people you would ask (judges & lawyers) -- So
Dworkin is a little “cagey” on this
 But if we at least impose this idea as a minimum standard, it helps constrain our adjudication
 6) Litigants have a right to the right answer b/c it is exists
 7) Principle not policy whenever judges are interpreting rights
 8) Judges only have weak discretion (strong discretion is where they just make it up)
 Weak discretion is applying the legal materials and then interpreting them
 9) Hart doesn’t recognize the importance of legal principles in interpretation (canons of construction &
legal maxim[i.e., buyer beware])
 So these are part of the law but they do not trace back to the R.R. (indicating that Hart’s entire
theory that law is about rules that trace back to the RR is flawed)
 Fit & Justification
 Defined
 Fit = Descriptive -- what the law is
 Justification = prescriptive -- what the law ought to be
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
Effect
 Sometimes there is a “Fit” that is on point that answer the question
 Sometimes there is not exact fit and you have to weigh the justifications and interpret what is “right”
 Hypo
 Miranda prior to 1994 if you said “I think I want a lawyer” it is unclear then if that was
satisfactory b/c there was no “fit” yet b/c a specific case had not come down
 This may be a hard case, but it doesn’t mean we get to make something up and just “plug the
whole”
 Painting Hypo
 We have to fill the hole w/in weak discretion, not strong/full discretion
 So there is some creativity taking place, but it is not full creativity
 Discussion
 Does Dworkin to a better descriptive job?
 His explanation seems to be a pretty clear idea of what an Anglo-American legal system actually
looks like
 What if interpretation goes too far?
 There is a range of generality here w/ different Justices about how much tightness of “fit” we need
 How do we decide if we want a tight/loose fit?
 Dworkin: that is a matter of political theory according to our judicial theory
 This might also lead us to a discussion about Art. III, separation of powers, and questions
of federalism and democracy
 This is similar to what Finnis (or Fuller maybe) said that we may at some point need to
have a discussion about the philosophy of our legal system and the balance of power
 There is a point where judges can run-amok — but if we don’t encourage them to try and
interpret with an aim towards a “right” answer then they might not exercise the same restraint
 So if we resort to Hart’s model and tell judges they are making law in some areas then they
may be more unbound
 We are also occasionally confronted w/ prudential concerns about what counts when there is both
statutes/positivism & cases
 There are also sometimes mistakes and part of your political theory of things like “fit” can
determine how you think about stare decisis and whether cases/statutes predominate and other
things like that
 So the legal fit aspect can get much more complicate that simply the “no vehicles in the park”
 Model of Rules & Legal Principles of Adjudication
 Maxims (read 51-65 in Patterson)
 Legal maxims and canons of construction help guide us in our interpretation in the area of
adjudication
 Dworkin thinks these are actually part of the law and that these aspects don’t trace back to a RR
 These show up in cases when judges want them to
 These canons/maxims are enforced when the judges want to enforce them
 So these are like PRO that exist only as a matter of Social Fact
 Hart Counterargument
 Hypo
 Rule of lenity (Dworkin would agree this is a canon/maxim)
 Modern trend has been away from rule of lenity, towards Model Penal Code idea of fair
import and doing justice
 In Most states the rule of lenity, or its alternative has been codified
 If Congress wanted then they could overrule or codify the rule of lenity
 But they haven’t and Hart might say that judges are merely exercising their Art. III power
to adopt canons of construction
 So we don’t have to have a clear statement from the courts, they have this power under the
Constitution/R.R.
44


We are saying that these canons/maxims could be codified by congress, but just b/c they aren’t
doesn’t present any problems b/c they otherwise fall w/in the Art. III powers of judges to
implement rules to make decisions in the OT
 Exclusive Legal Positivists
 The idea of legal maxims/canons would fall somewhere b/t the statute (posited) and the policy
(not posited)
 So yet again the LP realm is muddied up by the introduction of trying to merge these ideas into
the LP realm
 But: What if the highest court embraces a maxim — well then it, in some ways, becomes posited
law
So in some ways as part of his normative goals, Dworkin is trying to tell judges how to be good
adjudicators
IV. Legal Skeptics (LS)
A. LS - Holmes: Path of the Law
 Overview of Legal Skeptics
 Holmes (proto skeptic)
 Llewellyn & Frank — 1930s legal realists
 Richard Posner - Legal Pragmatist
 Levinson & Balkin — Critical Legal Studies CLS
 Holmes - Path of the Law
 Practical Focus
 Lawyer’s Perspective: Law is (from the lawyers perspective) a prediction of what the court will do
 Judge’s Perspective: The idea is of reform and what judges/courts should do
 During this time there is a lot of law still un-codified
 So if judges make law, and legislature never ratifies it, then they can also undo/unmake the
Common Law in a goal or in the pursuit of reform
 This is a very different view of stare decisis: keep it unless it no longer fits with the social setting
 Avoiding Confusion
 From the lawyer’s perspective — confusion mean bad advice to the client
 From the judge’s perspective — you make bad decisions
 Pitfall 1: a huge pitfall is the assumption that there is a connection b/t law and morality
 Why do we think there is a connection? There is a common vocabulary that can make us assume
that the legal use of a word = its moral use
 Malice aforethought: merely intent to kill or depraved heart/indifference to human life, not an
evil premeditation
 So there is a conflict b/t mercy killing (assisted suicide) and how we think of that morally
and legally (so not necessarily immoral but illegal)
 Efficient Breach & Contract: A breach of contract is not necessarily an immoral act, but
Holmes would argue that a contract is merely a promise to perform or pay for not performing
 So there is no evil associated (typically) with breaching a contract
 Intent
 Holmes says that intent is an objective standard, not us trying to look inside your heart/head
and see what the person thought
 Now many people disagree w/ Holmes on this
 Pitfall 2: It is a problem to believe that law = logic
 Holmes is unhappy with Christopher Columbus Langdell (creator of case method)
 Langdell was a formalist and this is connected to the case method
 So you learn a body of cases that are seen as the axioms of the legal system, and then
presumably (to formalists) there is a logical structure and then once you have the
foundation then you can work out all the details and answer new questions
 This presumption is that if we “do the math right” and have understood our axioms then
you can work out all the cases and everything is Settled Core
45
 Holmes disagrees with this idea
 The rules we have in contracts & torts are historical accidents that give us the law we have
 Holmes Continued
 Review (Mid-Holmes)
 Remember this was 1867 and he was a proto-legal skeptic
 Two Perspectives
 Practical Lawyer’s Perspective (goal of predicting to help your client)
 Practical Judge’s Perspective (goal of reform)
 Pitfalls:
 Law ≠ Morality — we have a common shared language that doesn’t have the same meaning
 Malice merely means you intended to kill (Not that you are evil)
 Intent is objective according to Holmes
 Law ≠ Logical (responding to Chris Langdell & case/socratic method)
 Came From: Thought is that law has an axiomatic/geometric logical structure through
which you can deduce what the law should be
 The real key to law is not its logic, but the key is:
 History & Policy Analysis
 History & Policy Analysis
 History
 Why is it important and more definitive of law than logic
 We study history to understand why we have the laws we have, but that isn’t where we stop
 Sometimes we look to the legislative intent of what they want and there is no logic necessarily in it
 Holmes is responding to people like Coke who saw historical evidence of law and then tried to
derive or attach logic from it
 Contract Example: We had a historical rule that required the physical contract (historical accident)
and in trying to make it seem logical lawmakers applied it to all types of contract, but it wasn’t
logical
 Born Alive Example: This was a historical rule about when you could murder a new born.
 This rule was historically based on scientific knowledge at the time, so it wasn’t a stupid rule in
the 1600s
 But now in modern times it isn’t as logical as it once might have been
 Policy Purpose
 Since we are seeking to change/reform the law, we don’t just stop at the history — we analyze
the history alongside with the policy matters
 Dragon Example
 History is what gets the dragon out of the cave, but policy is what either tames or kills the
dragon
 Point of Policy
 Once we know what the rule is because of history, then we should do a policy analysis
 Larceny vs. Larceny by Trick
 Why do we have a difference (in Holmes’s time)?
 Well as a matter of history we started out only punishing larceny by trick (b/c they are
likely to get caught and then hurt someone in the process)
 But later we then expand the common law and introduce other crimes like simple larceny
and embezzlement
 This is illogical and breeds complications b/c the wrong charges might be brought etc., and
get quashed
 Now we create a consolidated theft statute that is logical and simplifies this
 Policy Analysis
 Concerned w/ Economics & Statistics
 “Future of law belongs to the master of economics & statistics” -- not concerned w/ morality
 He is concerned with judges thinking about practicalities & efficiencies not morality
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
Cost Benefit Analysis
 What are the benefits of a particular policy and what are the costs and this should weigh into
the thoughts of the judge/legislator when deciding what the law should be
 Specific Examples of Economic Analysis
 Breach
 A contract is a dual promise: you agree to either perform the contract or pay for the breach
 So breaching a contract is not a moral wrong
 Employer Injuries
 There is a rule that the employer doesn’t have to pay the employee for injuries unless the
employer were negligent, but often if it actually gets to the jury they somehow will find that the
employer was “negligent”
 This has led to an evolution where we believe that the big employer ought to almost insure the
employees, so we then begin to have modern ideas of workers’ compensation and health
insurance
 And then the historical ideas like 1 arm = 1 gold piece, is a lot like life wage earning tables
 Hart & Legal Skeptics
 Hart remember thought that the skeptics thought of all law as OT
 Holmes:
 He doesn’t have any ideas of conceptual work like Hart (no mention of what is SC and what is OT)
 Holmes is making a practical assessment of the law
 What does Holmes say?
 He is having a practical thought from the lawyers’ perspectives to understand precisely what
the judges in their jurisdiction will do
 He is also having a practical thought about judges who ought to be seeking reform through a
combination of looking at the history and then doing a policy based cost-benefit analysis
 None of what Holmes is doing is anything that Hart said he was doing — he is unconcerned with
the OT/SC
 Holmes as LP or NL?
 Well he isn’t NL b/c he rejects morality
 But he talks about “we need to change the law” which suggests there are vast bodies of Settled
Core of law that we need to alter
 What does Hart get right?
 Well Holmes does believe that the law can be changed and altered by judges
 And Holmes does in some way have a conception of a SC and an OT
 But Holmes isn’t making a conceptual model, he is describing practicalities
 Holmes as a Legal Realists
 LP want to describe
 Legal Realists want to propose social change and reform (so they have a normative agenda)
 But this differs from the NL agenda b/c NL people want to infuse the law with morality and ideas
of rights and justice
 Legal Realists want to infuse the law with economics and cost/benefit analyses; ideas of utility;
ideas of maximizing wealth
 Holmes & Judicial Restraint
 Before getting on the Supreme Court, Holmes has ideas of judicial restraint
 Lochner: Holmes had a famous dissent on this right-to-contract case
 Laissez Faire economics are not part of the Constitution, and in this area the Court should have
deferred to the democratic process
 See page 15 (top left ¶)
 Judges can have a tendency to have a knee-jerk reaction and then rely on their internal ideas
and then mistake them for being logical or related to the constitution
 Judges can mistakenly engage in judicial activism by jumping to internal moral conclusions
 The fact that we find some view shocking is not a good reason to strike them down?
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 A good way for judges to engage in reform is to “get out of the way” and not to strike it down
as unconstitutional
 So there can be judicial reform through activity and passivity
 So when Holmes was writing in 1897, he was well aware of judges striking down socially
progressive laws on economic grounds in the early Lochner era
 So Holmes says that the working conditions in 1905 are not the same as they were in
1880, so we have to analyze the history and consider the policy for the best choice
 Holmes wants judges not to have knee-jerk reactions
 The fact that you have “historical” beliefs (republicans who grew up during the period of end
racism b/c everyone has a right to sell their labor)
 Those should not be blindly applied b/c they exist as a matter of historical fact, but you should
consider the policy implications
 Brandeis brief: a brief filled w/ empirical and factual evidence that stays away from morality based
decision making — so this is a way to argue for empirical policy
 Judicial Restraint: It is often that this mode of analysis is so difficult, and the Brandeis brief can be so
intimidating that judges will exercise more restraint and may say “well let’s wait” and see what the
legislature does in reform
 Holmes & Jurisprudence
 What is jurisprudence?
 An example: we take some area and then we start to dissolve it and get to the bottom of it and try to
then theorize where it would go next
 So to Holmes this is similar to his idea, but he thinks that jurisprudence is just more theoretical
 Can’t-Helps (things he just can’t help but believe) (Holmes actually gets metaphysical a little here)
 I.e., you possess something long enough then it just becomes yours, so Holmes then tries to make it
logically make sense
 NL would call these self-evident truths
 So jurisprudence is just History + Policy analysis, that goes down a theoretical road to a deeper basis?
 But this sounds a lot like Natural Law (as Finnis would say everyone engages in NL as some level
or anther no matter what they call it)
 Some costs & benefits (i.e., bakers are dying early) might also just be moral costs & benefits
 But legal skeptics have a tendency not to acknowledge these things
 Half-way Analysis
 Not everyone falls into pitfall 1 (morality) and not everyone falls into pitfall 2 (logic)
 Frequently judges sort of halfway do both in an un-analytical manner,
 But we instead need to be methodical about it
B. LS - Legal Realists - Llewellyn: Realistic Jurisprudence, the Next Step (Patterson & Handouts)
 Llewellyn - Realistic Jurisprudence: The Next Step
 Setting
 This is 30 years after Holmes’s essay
 He sees himself taking the next step after Holmes
 He wants to be even more of a realist than was Holmes
 His Project
 He is not defining law; he is not conceptualizing law
 He wants to have a focal point and then no limits/boundaries on what is included in the legal system
 He wants reform for the most part (LP wants to clarify and understand; NL have their own agenda)
 Focus:
 We should shift our focus from the paper to the working rules
 Paper Rules: Rules that are in the actual books/statutes/opinions/etc.
 Working Rules: What actually governs peoples’ behavior
 Actors
 We have high courts & legislatures who author the Paper Rules
 But we should actually be thinking about the low-level officials like:
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 Trial courts
 Administrative agencies
 Want to see how the government really works is go down to the DMV!
 Police
 General Rules vs. Specific
 We shouldn’t be focused on the general rules handed down by a legislature or high court
 We should focus on the particular (as it applies?)
 Example
 We have an interest like privacy; a right lke the 4th amend; rule like knock-and-announce rule; & a
remedy like a § 1983 suit (no exclusionary rule here)
 If you want to know what really happens in the law you could focus:
 On the right
 On the rule
 On the remedy
 But if you really want to know you should then focus on the working rules, low-level officials, and
it should be particularized
 He would study what the vice squad on South Side of Chicago do
 What are the rules they actually follow; what are the rights that these individuals under
them actually have?
 You can’t have the thought that the same thing happens everywhere
 If you really want positive reform then the focus shouldn’t be on the general paper rules; but on the
actual working rules and the low-level officials in particular/specific places
 How does this rule actually translate into police behavior
 Working Rules of Criminal Procedure - Dershowitz Handout
 How is justice defined: He probably means adherence to the paper rules
 Manipulating the paper rules is a waste of time; we need to look at the actual working rules
because this is the path to reform
 Legal Skeptics Review (Post-Holmes, Mid-Llewellyn, Pre-Frank)
 Holmes:
 Focus on - History & Policy w/ a reform goal; Cost-Benefit & Economics
 Avoid - Logic & Morality
 Legal Realists Typified by
 Karl Llewellyn
 Frank
 Llewellyn
 Not engaged in:
 Not doing conceptual analysis like Hart
 But the goal is reform to achieve a desired social purpose
 Focus on:
 Form
 Facts
 Shift
 From paper rules, to working rules
 Away from SCOTUS & Congress, to trial judges & police officers etc.
 Local issues, not national issues
 Another Thought: consider . . .
 Classes
 Interest
 Ex: Privacy
 Rights
 Ex: 4th Amendment
 Rules
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 Ex: Knock & Announce Rule
Remedies
 Ex: § 1983 suit, but no exclusionary rule
 These progress from the most abstract (interests) to the least abstract (remedies)
 We shouldn’t focus on the abstract stuff (these are “paper” rules), instead we should shift to the
working rules (remedies).
 We should start at the remedies and work our way back up to the more abstract things; I.e.,
understand what the “real” rules are
 Ex: What is the “real” knock & announce rule
 Drug Dealer Example
 The exceptions for the knock & announce (futility & exigency) swallow the entire rule
in drug dealer cases
 Since there is no exclusionary rule, then this civil rights remedy has nothing to do with the
main goal of staying out of jail.
 Even if they bring the suit, they might lose on qualified immunity or the jury may just not
allow a win b/c it is a drug dealer vs. the swat team
 The swat team also knows a suit is unlikely so they won’t really care about this as a
remedy b/c it isn’t really legitimate.
 This means there is no practical remedy which obliterates the idea of the paper rules
b/c with no remedy there is no real rule or protected aspect of the fourth amendment
right here, and no real protection of the privacy interest here.
 This shows us that the reality is far different from what is on paper
 If we want to engage in reform then we need to see more clearly what the legal world really
looks like
 Llewellyn: The Next Step (Holmes took the first step)
 How is he more of a realist than Holmes
 Formalist Examples
 Contract
 To a formalist is basically a promise to perform
 To Holmes, it is an explicit promise to perform and an implicit promise to otherwise pay for not
performing
 Thus it isn’t wrongful to breach a contract
 To Llewellyn it is either perform, pay, or “see you in court”
 You don’t often get someone who admits they failed to perform, they fight it and make it hard
 The contract was really perform or take me to court (and take a shot at suing and this is an
imperfect right w/o full recovery)
 This results often in a settlement b/c the wronged party doesn’t want to go through all
the legal troubles.
 So, by moving backwards from the actual imperfect remedy, we see what the contract law is
really about: Promise to perform or a right to sue (and likely only get a partial recovery)
 Hart & Llewellyn
 Hart on LS
 Said the LS deny the SC and think it is all OT (think law is what courts do)
 Llewellyn
 He is saying nothing about the SC & OT business
 He is more radically saying that is “paper”—he cares about facts and actual observable
behavior; the disconnect b/t paper & actual rules
 We can be in the SC or OT, but it is likely that the working rule is something entirely different
 I.e., if the speed limit is 50mph (clearly SC), but the cops may only write tickets for 60mph
as the working rule which is the rule.
 So Hart misinterpreted LS thought as a skeptical thought, but it was a practical thought by the LS
 So he wasn’t conceptualizing the “law”, he was identifying a disconnect b/t conceptualization
and actualization of law

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 Hart misinterpreted Llewellyn, just like he misinterpreted Holmes.
 Note: He probably didn’t really misunderstand the LS (he was probably just advancing his
argument), but he might have really misunderstood the NL.
 Llewellyn & NL (Finnis & Dworkin)
 Similarities
 They both have reform as a driving force (both have normative agenda of make the world a better
place)
 Llewellyn - Get better facts so we have better reform
 NL - Understand the facts so we can have a better world
 Adjudication - This similarity comes out in adjudication
 They all seem to want the judges to think about these reform goals when they decide cases
 Differences
 NL has a lot of abstract theorizing about right/wrong; justice/injustice; metaphysics
 Llewellyn (like Holmes) doesn’t want metaphysics or abstract theorizing (this is arguing how many
teeth does a unicorn have)
 Instead wants to think about common sense social goals, and do a cost benefit analysis focus
on the facts to determine which is the best of these social goals
 Finnis & Dworkin would focus on the paper rules, not on the actual rules
 They would argue at the highest level of abstraction (interests & rights through the lens of
morals)
 Llewellyn on how to actually address working rule issues, like the knock & announce example
 We ask what are the actual rules and what are the costs and benefits of them.
 So we could continue to restrict the exclusionary rule, but we could make 1983 suits easier and
then that would raise the costs on police and perhaps incentivize knocking and announcing
 We can’t do this from the armchair, we must look at actual police departments and see what
motivates them
 Discussion
 There are some things that cannot turn on a cost-benefit analysis of any kind (i.e., abortion)
 If judges are supposed to reform, should they be active or conservative
 Like Holmes, Llewellyn thinks that sometimes judges should just get out of the way
 Llewellyn was part of the group saying the Court needs to stop Lochnerizing legislation
C. LS - Legal Realists - Frank: Law & the Modern Mind
 Frank: Law & The Modern Mind
 He is more radical then Llewellyn
 Focus
 Frank is focused as a realist on adjudication and on how judges really make a decision
 How Do You Figure Out Why the Decision Was Made?
 You don’t try to find it in the legal opinion (as a formalist would do)
 Judges hunch-out a conclusion and the drafted opinion is a post-hoc rationalization/justification
 Facts for Hunches
 Personality of Judge
 Stimuli Going Through the Judges Personality
 So:
 Stimuli  Judges Personality  Hunch Out a Conclusion  Opinion is a post-hoc rationaliation
 Stimuli
 The rule is stimuli
 Also other things like the witnesses, if he likes the defense or plaintiff, other facts and biases about
the judge’s personality
 Biases that can be as simple as you remedy me of someone I don’t like
 Basically:
 Who knows, there are lots of things floating around
 Practical Effect:
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 People Judge shop (lawyers and police)
 There is not really a working rule about “how” the system works
 Where is Frank “going” — what is his goal?
 It is a reform goal, and the facts are that the real judicial process is stimuli
 Frank wants us to study psychology in the law schools and train judges in psychology b/c adjudication
is a mind game and if we understand the stimuli and the biases, we will better understand how to avoid
them.
 If we think about our biases, we can transcend at least some of them
 Also, lots of judges think (once finished w/ opinion) that it justifies their “hunch” -- they need to realize
they actually had greater discretion and then they might be able to use that knowledge to enhance
reform by choosing to be either more or less active in reform
 Note: This would also make lawyers better at what they do by being aware of the stimuli
 Note: This is a very radical, rats-in-a-maze thought they we don’t just want to accept at face value
 In some ways, Frank is sort of making a conceptual statement about the legal system
 LS Review (Post Llewellyn & Frank / Pre Posner)
 Holmes
 Agenda - They are interested in reform (judicial and legislative)
 Skeptics - I.e., they are opposed to formalism (there are mistakes to being a formalist)
 You need to study history and policy
 Llewellyn & Frank
 Similar POV to Holmes
 Llewellyn - Antiformalism - Paper rules vs. Working Rules
 This sets up a reform agenda
 Frank - Anti-formalism - What actually resolves cases is stimuli and personality
 This is also meant to suggest a reform agenda
 Reform Agenda - Getting past these barriers helps our reform agenda
D. LS - Legal Pragmatist - Posner: Ch. 9, Handout, & Law Review Article
 Posner - Ch. 9 in Patterson
 Overview: Posner considers himself a modern Holmesian
 Posner chooses to call himself a legal pragmatist (not a legal realist as Holmes did)
 So what is pragmatism:
 Hostility to metaphysics - Don’t spend time thinking about metaphysics
 Focus on felt needs, consensus values, common sense
 Law as an instrument to achieve these things/goals that we feel
 Forward Looking focus on human needs
 Emphasis on Scientific Methods
 Other Terms
 Progressive, not looking at the past
 Secular
 Experimental where we try things and see if they work
 Based on common sense as these are things we appeal to (we don’t have justify why we don’t
want Baltimore to be blown up; whether we want people to be rich or poor)
 New v. Old Pragmatism
 This is an attitude so there is cross-over between “new” and “old” . . . what there really is is a
difference b/t the legal realist movement of the 1930s and the legal pragmatism movement of the
1980s
 Failures of Legal Realism in the 1930s
 1) Naïve thought about legislation: There was a problem with viewing the judges as faithful assistants
to the legislature b/c frequently the legislative process is not considerate of the public good b/c it is
often dominated by interest groups, etc.
 You can’t be a faithful agent of the legislature, when it has farmed out the process of legislating to
interest groups
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 Recognize the realism, the messiness of legislation
2) Too much faith in government
 New deal era LR liked government and wanted it to be bigger and better.
 Posner is conservative and says there is nothing pragmatic about always thinking bigger
government is better. We shouldn’t assume this is always a good thing.
 3) They lacked a social science method for achieving their goals/thoughts
 They knew the right thing to do (study facts not paper rules—Llewellyn), but they didn’t have the
tools to manipulate and use those facts (no method for empirical analysis)
 What has pragmatism to offer the law
 1) Free Speech - There is a marketplace solution to protecting free speech
 This pragmatic theory can offer us a hard theory (non philosophical) that can protect a free market
of ideas
 2) Pragmatism gives us the best idea of how to interpret things that appear to be metaphysical (like
Holmes saying don’t use the moral definition when there is shared language)
 Examples:
 Intent: With intent you shouldn’t really try peer into the metaphysical/subjective intent of
someone
 Instead we should be concerned about the public policy and social consequences of how
dangerous the criminal may be
 Causation: Frequently in law when we talk about proximate cause we aren’t actually talk about
real cause
 We are talking about policy and when should someone be responsible
 There can be problems if judges really get caught up in trying to identify metaphysical
causation — better to recognize this is a policy choice here about assigning liability
 3) Critique of Legal Formalism in the Common Law
 Basically we shouldn’t assume that bodies of law (common law) make sense; instead we should
recognize the law is what it is and we should consider that alongside our felt needs
 Looks at wild deer example: Who owns a deer that moves over various parts of private land?
Should the same theory apply to oil and gas rights that flow b/t private property owners?
 No there is no similarity and we shouldn’t bind ourselves to thoughtless formalism
 Example: Don’t assume that a computer is always like a filing cabinet for 4th amendment
purposes—maybe it is of its own class
 4) Critique of Legal Formalism for Statutory Interpretation
 The statute is more of a tool for interpretation (not that you look at the statute and find a “right”
answer)
 This plays into our idea the legislation is often controlled by interest groups
 Use the text as a vehicle for making a pragmatic, forward looking, human needs based,
hostile to metaphysics decision
 But you can’t completely throw out the legislation b/c the parties to the litigation expect it to be
interpreted somewhat
 There is also a thought about the separation of powers and that we can’t completely ditch the
legislature
 5) Theories on Adjudication
 Need to recognize that while originalists have a point (they want some way to enforce judicial
discretion) but we shouldn’t retreat to formalism; we still need to rely on pragmatism and build into
our theory of adjudication that sometimes we should defer to the legislature.
 Judges need to exercise self-restraint through a pragmatist theory, not through revival of
formalism
 Roe v. Wade Example: This was a bad case not b/c there was nothing in the Const. about it, but
because it was a pragmatically bad idea to dive into this area and create needless social division
 6) Economic Analysis

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
We should take areas where economic analysis produces a plausible result, and then use that
economic thought to find what is good for public policy—areas where we are all generally
interested in increasing wealth
 7) Scientific Method
 Science and Pragmatism are a natural match for one another: they are both progressive and look at
common sense thoughts and goals
 Paradox: Science is a search for truth (and pragmatism doesn’t care about truth)
 But maybe scientific search for truth is just a search for the facts as we understand them today
 8) Legal Rhetoric
 Since they avoid truth, pragmatists have a tendency toward legal rhetoric
 Example: Critical Legal Studies people, for example, think all law is rhetoric
 The marketplace of ideas feeds into rhetoric b/c we want to sell/market our ideas (advertising)
and similarly rhetoric is about getting someone to believe what you want them to believe
 Example:
 Abortion reduced the crime rate. This may be a clinical pragmatic look if you are really
hostile to metaphysics, but you have to be pragmatic about your legal rhetoric b/c if you
are too hostile to metaphysics then you may turn people off and they may view you as a
fascist.
 What are they good at? (I’m not sure what Nowlin was getting at -- is this what LF were good at or
what Legal Pragmatists are good at?)
 Critique of LF in the Common Law
 Looks at adjudication
 Posner: Handout on Hart & Dworkin
 Hart v. Dworkin
 Hart:
 There was OT (create rules) & SC (apply rules)
 Dworkin
 Hart was completely wrong and we have Hard (people disagree) & Easy (people agree) cases, but
regardless we are always engaged in interpretation
 Posner About this Argument
 1) Matters what you think judges do
 Hart is from an English system where judges do less (defer to Parliament more)
 Dworkin is from America were judges do more (they are less deferential b/c they frame their minds
on Constitutional law and have more free-wheeling power)
 Says Hart is descriptively more accurate, but semantically/rhetorically Dworkin is correct in the
American system
 If you say a judge is legislating in America we interpret that as wrong!
 This doesn’t bother Hart b/c there isn’t a fear of judges usurping legislative power
 But if we say that the judge is interpreting that carries w/ it the implication that judges are
doing what they are supposed to be doing (i.e., not wrongful)
 Summary
 Hart describes better what judges do in the OT (Posner: I’m a judge and I make stuff up and
the text of the rules just aids me)
 But this is bad rhetoric b/c if I (Posner) call what I do legislation, people think I am violating
the separation of power, but actually I am not because interpretation is what judges get to do in
the American system consistent w/ the separation of powers
 The only issue isn’t having the clearest picture in your head (what Hart gives us), part of
the course of action is to properly describe to fellow citizens so they understand!
 2) Fit & Justification and Morals
 In the hard cases, judges shouldn’t focus on moral principles (that is metaphysics)
 Instead what we should do in the open texture is fit (look at statute) and justification (based on
forward looking, human needs, progressive, secular, economic analysis, cost benefit analysis,
etc.)
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
Example:
 Minimum wage example: Dworkin would look at human dignity, etc. Posner would say look at
the facts and see whether this is good for the public policy (i.e., put people out of work or help
sustain the economy)
 Posner: Law Review Article
 Metaphysics - Worst Kind Academic Moralism
 The worst kind of moralism is that engaged in by academics who moralize things
 Nonetheless, Posner still wants to engage in a normative argument
 But this is based on felt needs, consensus values
 Should be results oriented and based on facts and social science and cost-benefit analysis
 What’s the Difference?
 Hypo: Should we put to sleep spina bifida babies in the future?
 Well, Academic Moralists would look at human diginity, etc.
 Pragmatists would say no, we should look at the above pragmatic factors
 They would argue there is no need to debate whether infanticide is right or wrong b/c general
consensus is that it is wrong.
 So moral arguments are wrong b/c either we already agree or we will never agree (i.e., try
telling roman gladiators about how infanticide and murder is wrong)
 So these arguments are unnecessary because:
 (a) We already agree on the morals, or
 (b) We will never agree and there is no use in endlessly debating it
 Strong v. Weak Thesis
 Strong:
 Academic Moralism doesn’t do any good for us and is a complete waste of time b/c there aren’t
any objective truths
 But, maybe people mistakenly believe there are so that people give some ground to Academic
Moralists
 Why it doesn’t work — Does academic moralism motivate people??
 There are moralist who make arguments that are inaccessible (Dworkin)
 But there are moral entrepreneurs like MLK and Lincoln who convince people to do
things that are fundamentally non-rational
 So is Posner saying that we should focus on political rhetoric (like MLK and Lincoln) if
we want to use this, not on carefully crafting our arguments like Dworkin
 Weak
 Even if academic moralism could motivate, then it isn’t even good for judges to use anyway
 Review (Mid Posner Law Review Article Review)
 LS - Holmes, Llewellyn, Frank
 Now comes Posner joining the party
 Posner (Law review Article Cont’d?)
 Attacks . . .
 Formalism/Logic (comparing deer law to oil/gas issues)
 NL - Academic Moralism (attacks engaging in abstract morality
 Hart & Dworkin
 Hart is descriptively correct (this is what most judges do but people freak out about this)
 Dworkin is semantically correct (as this is a more palatable way to state what judges do b/c people
don’t think this is wrongful conduct by judges)
 But fit/justification is wrong where the justification debate is academic moralism
 Metaphysics, objective morality and truth; concepts like justice fairness & truth
 Normative analysis ought to be pragmatism (according to Posner)
 Law as an instrument to achieve social ends; these are felt needs (consensus value of what we
feel we need); cost-benefit analysis; and if possible economics to guide us
 Problems w/ Academic Moralism - Strong Version
 Academic Moralism gives us no answers of any use
55


Counting the teeth on a unicorn — there are no answers out there
Reasoning
 Most moral concepts can be explained w/o reference to morality
 Why a prohibition of homicide:
 Dworkin (or right-wing equivalent Finnis) would say b/c we value human life
 Posner: we collectively want to live and we can use and posit that w/o having to get
into metaphysics and human dignity, etc.
 Knowledge does not equal motivation
 Even if we could convince that an academic moralist is true, then people might still not
follow the advice
 Donuts, smoking, etc. are bad for us, but we still do them.
 So academic moralist arguments may not provide sufficient motivation for the
behavior to change
 Academic Moralism is too feeble to overcome self-interest or moral intuition
 Example:
 Someone raised in the catholic church and very opposed to abortion, then Dworkin
probably couldn’t convince them through academic moral arguments that abortion is
right
 Someone raised in liberal Massachusetts family probably couldn’t be persuaded by
Finnis’s academic moralism arguments
 Academic Moralism lends itself to rationalization
 Dworkin & Finnis are both smart, and have their own political views. They are essentially
rationalizing their academic moralism views to fit with their greater political interests, but
they never admit it.
 If there really was an objective morality, etc., then it is likely Dworkin & Finnis might
occasionally come to conclusions not in sync w/ their beliefs...
 Problems w/ Academic Moralism - Weak Version
 There are just no answers in academic moralism that are useful in resolving legal cases
 Good in ethics and philosophy, but now law
 Why:
 Judges are not comfortable w/ academic moralism (not trained in it)
 Academic Moralism is divisive and makes cases more complicated then they need to be
 Academic Moralism doesn’t mesh well with legal materials
 Examples:
 Glucksberg (is there SDP for physician assisted suicide)
 Finnis & Dworkin were on opposite ends, but SCOTUS didn’t take either’s position.
 Court avoided academic moralism, why?
 There are other ways to get there w/o academic moralism
 History of Rights for SDP - There is a history that it has been criminalized
 So Dworkin & Finnis POVs wouldn’t mesh well with historical analysis for SDP
 Staking-out a position here would just breed divisiveness among those who disagree
 SCOTUS Justices are not trained in academic moralism as are Finnis & Dworkin
 Technical Complications - Court also didn’t want to mandate physician assisted suicide b/c
there are all sorts of regulations & protocols that the Court doesn’t want to mandate (looks to
legislative)
 Roe & Casey (Contrast w/ Glucksberg)
 Unlike Glucksberg, the Court didn’t defer and found a substantive due process right to
abortion
 Reasoning:
 There was less historical impediment here (according to Blackmun) and there was more
common-sense balancing of the burden on women and the consequences on the medical
profession — so less impediment of meshing w/ legal materials
 There is a felt need that this is needed
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 Some sort of balancing of social interest perhaps based on economics
 Court disclaimed any ability to answer metaphysical questions of when life begins, etc.
 The snuck-in the 3d trimester issue w/o addressing the value of fetal life. This way
they strive to duck the issue, and implicitly but purposefully avoid the issue of is a
post-viability fetus deserving of human life
 Brown v. Board of Ed.
 Reasoning:
 Schooling is really important to economic life and social education
 We know this through social psychologists who have done the “doll” study to show
that African American kids wanted to play w/ white dolls
 There is no academic moralizing here
 Rigs v. Palmer (murdering heir case)
 Dworkin - The right way to resolve this is to look academic moralism about the wrongness of
murder
 This is a favorite case of Dworkin
 Posner: We look at the statute and just b/c they left this out is no big deal
 Common sense tells us that the testator’s implicit intent was this and the legislature won’t
mind if we add it
 Nothing more than common sense evaluation/assessment of felt needs, etc., is needed to
resolve this.
 Posner Discussion
 Judicial Restraint: The attack on formalism and NL (with Posner as w/ Holmes) routinely leads to
judicial restraint b/c the judges routinely don’t have any better answers than the legislature
 Occasionally there may be judicial conscience that requires civil disobedience by the judge (so
Glucksberg = right; Roe/Casey = wrong; Brown = right (b/c of judicial disobedience)
 He might also argue that the SDP founded in historical notions etc., is a basis for judicial restraint
so that we don’t drift too far
 Dworkin & Finnis
 They basically write as part of conversations b/t academics
 They also write to buck-up the troops who follow their political POV, who may not understand
Finnis or Dworkin, but they like the same results
 Posner - Why does he write?
 He is writing for other academics (like Finnis & Dworkin)
 And he is also writing to buck-up his troops (the libertarians)
 Posner Reform Agenda:
 He probably does have a reform agenda, but he is more reluctant in it b/c he is a skeptic
 Rhetorical Power
 Sometimes academic moralism is more rhetorically powerful (and part of pragmatism is rhetoric
and recognizes that sometimes the pragmatic method is to use something other can pragmatism:
i.e., moral entrepreneurs like Lincoln and MLK)
 So maybe Brown would have been a stronger case if it hadn’t relied on the doll study (later
debunked) and had been less narrow and included a little bit of academic moralism.
 But, Posner might also argue that moralistic arguments might not work on a hardcore racist,
and maybe we should garb our morals in arguments based on social goals and needs
 Slipperiness of Posner’s Theory
 Sometimes it becomes unclear what is the difference b/t Academic Moralism (Finnis & Dworkin),
Moral Entrepreneurs (Lincoln & MLK), and Pragmatism.
 Note: Finnis is self-consciously writing in Acquinis/Aristotelian tradition where if you have a
faulty upbringing then you morals are corrupt and you have bad moral intuition
 So knowledge may not equal motivation is an idea that is also part of the academic moral
tradition?
 Academic moralists see the mind as forming our intuition etc.
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
 But Posner has a more Hobbesian view that that we rationalize things to satisfy the heart/gut
feelings and desires we have — the mind serves the purpose of rationalizing what we deeply
want to do
 Goes into Posner’s arguments in strong version for why academic moralism doesn’t work
Basically there is questionable basis for dividing the various categories here
 So there may not be that many reasons why we couldn’t have judicial opinions that looked
more like pragmatic academic moralism opinions (like Brown could have been more
academically moral — look more like an MLK or Lincoln opinion)
 If people often want opinions that affirm one moral position or another, can it be fundamentally
un-pragmatic to always be writing pragmatic opinions when people would respect and
legitimize moral opinions more?
E. LS - CLS (extreme skepticism) & Balkin: Deconstruction
 Deconstruction Article
 Goal
 Look at how this theory is applied to literary criticism and apply it to law
 Challenges:
 This stuff is written (intentionally) in a non-penetrable, inaccessible manner
 Not all of the deconstruction theory is applicable to legal theory
 This is viewed as a practice not a creed, so we face issues of using this “method” when it isn’t a
creed in our application of it to legal theory
 Goals / Promises of using this theory:
 This is abstract at first, but becomes clear as we go through examples
 We get a way to challenge legal doctrines
 We can uncover hidden patterns of ideological thinking
 We get some new strategies for interpretation
 Two basic Practices:
 These are listed as two distinct practices, however two is a subversion of the first
 1) Inverting Hierarchies
 2) Liberating the Text from the Author
 Examples
 Concept of being tall:
 This is typically privileged over the concept of short (hierarchy)
 Terms:
 Nested oppositions
 We have two things in opposition, but they are nested and reliant on the other for their
meanings — tall only means something in opposition to short)
 Differance (pun that something differs and defers)
 Just a jargon term for nested opposition
 Trace
 Thought that the concept of tall spoken w/o mention of short, carries w/ it a trace of short
b/c we automatically picture short in our head.
 There is always a trace when we think/hear a nested opposition
 Overall idea is that there is no foundation ideas
 No one cares about tall/short, so moving on ...
 Speech & Writing
 Speech has traditionally been superior/privileged over writing
 Reasons for current Hierarchy (Speech superior to Writing)
 Speech has an immediacy
 You can ask a question when you don’t understand speech (can’t w/ writing)
 Speech has additional elements to tone and inflection
 Speech came first, so writing was meant to isolate speech
 Writing is parasitical on speech
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
Inverting Hierarchy (could writing be better than speech)
 Point isn’t to show writing is superior to speech, but to show it is capable of being inverted
 Metaphor Example
 “There is nothing outside the text”
 I have thoughts in my head and those thoughts occur in the form of signs (be it pictures,
symbols, sounds)
 We then communicate those mental signs in words (which are themselves just signs
that represent other mental signs)
 Spoken and written words are a form of hard-writing
 Then someone else reads your signs and interests them
 We never actually get to the thing signified by the signs, we have only the text
 There is nothing we ever do that isn’t signs exchanged among people
 This suggests that speech is not superior to writing b/c it is of the same symbolic substance
 Writing endures times unlike speech (unless the speech was captured in video or recording)
 There is a thought that putting something in writing (in folk culture and academic culture) that
it is more serious or legitimate; that we think about things more carefully b/f we write them
 Purpose of Inversion
 To show that there is no superiority (in actuality) b/t speech and writing
 Legal Inversion - Automobile Exception to Warrant Requirement vs. The Home Where There is No
Exception
 Traditional Hierarchy
 The home is higher on the hierarchy than the automobile
 Invert the Hierarchy: Why is the auto inferior
 Automobile has a lowered expectation of privacy
 But frequently we share a home with others, but we may have in all actuality a greater real
expectation of privacy in our vehicles trunk
 There is a recurring exigency that you will drive out of the jurisdiction and we’ll lose the
evidence
 It is a lot harder to flush narcotics in a car (best you can do if cops are watching is swallow
the drugs and hope you don’t die)
 Maybe the thought that I can’t so easily just drive away (and abandon my home as well)
 Point:
 Show that there are assumption being made here that reveal certain ideologies
 Review (Mid-Balkin Review)
 CLS - Balkin on Deconstruction & Derrida
 Derrida intentionally wrote inaccessibly (a practice not a creed)
 But the goal is to challenge legal doctrine, uncover ideological patterns, and gain new methods of
interpretation
 Methods of Deconstruction
 Inverting Hierarchy
 Not to prove the inversion is correct/better — but to prove inversion is possible
 Liberating Text From Author
 Deconstruction
 Inverting Hierarchy Examples
 Automobile exception to warrant requirement continued
 There are a lot of reasons why cars may have more privacy (personal car) than a home (roommates)
 There is a recurring exigency in homes (you can flush drugs) and cars maybe not so much (can
only throw it out the window)
 Plaintiffs and Standing (art. 3 judiciability): Ps w/ actual injury and Ps w/ ideological injuries
 Say there is a nuclear problem/leak
 Do we want an ideological P or a P who was actually harmed
 We want someone who is actually harmed
 Current Hierarchy
59
 The job of courts is to resolve injuries/harms so we need an injury in fact
 We have a better resolution when there is a concrete actual fact (not theoretical)
 We will get better advocacy for an actually injured person
 Inverting Hierarchy
 The ideological Ps may make a better merit argument b/c they don’t want money (perhaps
better policy arguments)
 Ideological Ps may be better funded and can hire better council on this issue (Sierra Club vs.
random injured P)
 It may be more efficient to get an injunction before injury occurs by allowing ideological Ps to
bring suit
 Art. III courts are making federal law and we may get more lawmaking if we allow ideological
Ps who want settle before the issue is resovled
 Goal:
 Not to show one is better than the other, but to show that the dogmatic answer we are used to
(injury in fact) may not be so right
 First Degree Murder Based on Premeditation vs. Second Degree Murder Spontaneous Intent
 Privilege
 We privilege First Degree murder as worse
 Current Hierarchy
 Well we consider it more culpable/blameworthy/evil to have someone who plots and plans to
commit murder (instead of just spontaneously doing it)
 Guy who plots to kill uncle for inheritance
 Inverting Hierarchy
 Well spontaneous killers may be more troubling b/c they can’t control themselves
 More worried potentially about the guy who will kill you in a barroom brawl over killing
to get the inheritance
 Sometimes premeditated isn’t so bad, for example battered wife syndrome (diminished
culpability for premeditated murder)
 Or mercy killings for those who are suffering (less culpable than a barroom killer)
 Remember Goal
 Not showing one is better than the other, but that you can invert and realize our unnoticed
ideologies
 We may still think that the original hierarchy is still good
 Courts over Legislatures:
 Privilege
 B/c of judicial review, courts interpret the Constitution and legislatures don’t
 Current Hierarchy
 Thus we view the Court as the protectors of the Constitution, and thus the political branches
(legislature and executive/police) are the threat to the Constitution
 This is the popular view in American constitutional law
 Inverting Hierarchy
 This is a people’s Constitution and there is nothing holding SCOTUS Justices accountable for
their decisions
 There is always an argument that the Court is exceeding its Article III powers
 Brown is privileged Over Dred Scott
 Legislature/Executive wanted to overrule Dred Scott (allowing slavery)
 Here it appeared the Court was the threat (slavery) and the administration was the protector
 Thus we tend to view Dred Scott as bad precedent b/c they got it wrong
 Proves: The orthodox view is subject to challenge
 Liberating the Text From the Author
 Inverting the hierarchy in itself
 We traditionally privilege readings over misreadings;
60
 We privilege intent over text
But all readings are really misreadings
 We have readings where we care about the “mis” and those where we don’t care about the “mis”
 All readings are misreadings b/c of signs, signs, signs — readings are just looking at the symbolic
manifestations that originate from our original trapped thoughts.
 Privileging Intent over Text
 You have to try and capture intent of the lawmaker b/c there are otherwise too many interpretations
 Inverting intent over text
 Maybe the better hierarchy is to privilege text over intent
 The text is what we value because we codify it, and otherwise we would codify debates, etc.
 Minimum Wage Example
 Suppose congress passes Min. wage law for $9 an hour, and there is preamble of the intent
of the law
 But if you really thought intent controls, you would say $9 and hour doesn’t really mean 9,
it really meant $7
 In re Jane Doe (2000) Example
 Facts: This was a case form Tex. legislature and there was an abortion statute requiring
parental consent and there was a judicial bypass for minors. Legis. made it an ex parte hearing
under preponderance of the evidence (they meant for it to be a hard standard)
 But this is really an easy standard in an ex parte hearing b/c only one side is there
 Suit brought saying the standard should be clear and convincing.
 Legis. filed amicus brief saying do what we meant, not what we said . . .
 Court said no way, you have to rewrite the statute
 But believe it or not there was a dissent that thought they should be able to lean on the
intent
 Sexton Case:
 Facts: NJ legislature had a law in their penal code. The mental state standard following the
MPC was in their code. It also had a provision about MF provision: being a reasonable
mistake if a mistake of fact can negate a mental state
 There was a guy who shot someone and didn’t know that the gun was loaded
 Court had to decide what to do with the MF provision that looked like common law, and
how it meshed with the provision Mental State that looked like the MPC.
 Held: The court just quietly read the MF portion out of the NJ penal code b/c there was a
problem
 Maybe the court shouldn’t have let intent trump here (what it thought was a problem that NJ
should have foreseen)
 But this was intent over text b/c court assumed legislature made a mistake
 Recall from Crim Law: Defense to a crime called reasonable reliance on an official statement of
law later determined to erroneous/invalid
 See Morero Case
 Facts: I get prosecuted after getting advice from Atty Gen., but later Atty Gen. prosecutes me
and court finds me guilty
 NY took this provision of the MPC and removed the part about “later determined
erroneous/invalid”
 He claimed that his interpretation of the statute as an officer was a reasonable interpretation,
but court read the omitted portions back into the statute so that the reasonable reliance
provision requires that it be an official interpretation later ruled invalid, not just someone’s
interpretation of a statute (I didn’t accurately copy the example, and this text may not really
make sense)
 Court changed the statute so that the official statement wasn’t the text of the statute, but
was the statement of an official
 What should we do: Does intent trump text?
 When do we know we are done, when we flip hierarchies etc.?

61

Reflection: Like psychoanalysis you engage in reflection and know when you have accomplished
something
 Similarly, deconstruction flips us back and forth and then we reflect if we learned anything
 Who is Deconstruction most valuable to?
 Well probably the left b/c they are most interested in attacking the status quo.
 But it is also attractive to people on the right b/c of the text vs. intent thoughts.
 Thoughts
 This might be the kind of practice that would address Frank’s assertion of how our prejudices can be
discovered.
—————————————————————————
 CLS - Personal Thoughts while reading Balkin
 In life/reality there are not directors and actors; we are all simultaneously directors and actors so we cannot
hypothesize that an external directing force created a system in which we can act. So there is not a chicken
or egg dilemma, there is just both. Contrary to Hart’s argument that there wasn’t an act of promising until
there was a creation of the practice of promising, there is perhaps no discernable sequence; all we can
identify if the tension b/t the two
 So by exercising the deconstructionist theory we strive to straddle the line in a dynamic manner of seeing
both simultaneously; i.e., having a split mind that simultaneously comprehends A>B and B>A.
 So when we comprehend in our mind “identity,” we actually comprehend the dynamic middle ground
b/t what we actively try to discern “identity” and its opposite “difference.”
 Speech v. Writing: Appellate courts giving deference to trial courts who hear the trial and don’t just read
the record.
—————————————————————————
 This concludes the three schools of thoughts
 Big thought about the interactions of the schools
 They did to caricature each other
 LS didn’t caricature any other legal theorists, but they did caricature Langdell and he was much
smarter than they made him sound
 Rest of the Course
 Theoretical analyses of legal argument and adjudication
—————————————————————————
V. Adjudication
A. Adjudication - Nightmare & Nobel Dream: Handout on Interp. in Am. Jurisprudence
 Hart Handout - Interpretation and Adjudication
 What is the Nightmare and what is the Noble Dream?
 Based on problems in expansive court role in American system
 Noble Dream: Courts never make law (Formalists - Settled Core - the caricature of Langdell)
 Nightmare: Courts always make law (LS - Open texture)
 Hart says he is in the middle
 American Law Through English Eyes
 Americans are obsessed with the Supreme Court and how much power it has and what interpretation it
can engage in
 Britain doesn’t have a written Constitution so Parliament is supreme
 America does have a Constitution (and 50 state constitutions) so the high courts are supreme
 The best an English judge could do is find that the law was in conflict with some traditional common
law notion
 Much more constrained by these conventions of adjudication
 Americans & Nightmare/Dream
 B/c we are so concerned with the role of court interpretation:
 We are obsessed with the question of do judges always make law or never make law by nature of our
system
 Criticism
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
To the typical Englishman, a lot of what American’s call law Britain calls it politics (thus our method
maybe isn’t so democratic)
 Addressing Other Legal Theorists
 Dworkin - Noblest dreamer of them all — he is in the area of judges never make law b/c he thinks of it
as interpretation (even in hard cases judges never make stuff up)
 But maybe he should be more in the middle b/c most cases are easy cases, but the hard cases
require the fit/justification mix
 Frank - he is probably on the nightmare side of things
 Posner: Well he should be in the middle, but Hart puts him on the “never make law” side
 We should do an economic analysis of the law, and this utilitarian theory guides him (so not
making law)
 But Posner would probably self-identify in the middle
 Difference b/t Noble & Nightmare
 This may merely be semantics (as Posner says Hart and Dworkin really say the same thing)
 We used semantics to argue that maybe Dworkin belonged more in the middle
 But maybe there is less semantics and this was Hart pinning people based on how strongly they
believed things (Hart thought Dworkin was very certain about his views)
 Nightmare & Noble Dream Review
 Classes
 Nightmare: All politics / Open Texture
 Frank (most skeptical of the skeptics)
 Noble Dream: Never politics / Settled Core
 Formalists / Langdell
 Where does Dworkin Go?
 Hart puts him in the Noble Dream,
 But maybe Dworkin belongs in the middle b/c of the hard/easy cases distinction (hard cases are like the
nightmare)
 Posner?
 Hart put Posner on the noble dream (he had an economic process)
 But maybe he belongs in the middle b/c sometimes the statute/rule is just an aid to decision making
 Adjudication / Interpretation / Legal Arguments (last portion of the course)
 Point of the course is to get a taste of the theories surrounding interpretation
B. Adjudication - Levinson: Adultery Clause
 Interpretation - Levinson
 Adultery Clause
 Facts: Swear allegiance to the 10 commandments and if you adhere to them for 17 years then you can
get a pot of money at the end of the line. You are the administrator of the trust, so did they adhere (and
we are focusing only on the adultery portion).
 The People
 A: He slept w/ other women who were not his wife, but these other women were not married
 Claimed that under Judaic dictionary, adultery was not merely sleeping with a woman not your
wife, but sleeping with another married woman
 B: She was A’s wife, and she said that under modern conceptions of adultery she didn’t commit
adultery b/c she had permission from her husband.
 C: Polygamist/Bigamist: He only slept with his two wives.
 Argued that polygamy was permitted in ancient Israel.
 D: He lusted over other women
 According to New Testament, lusting after women is committing adultery in your heart
 E: He lusted after his own wife
 Papal teachings instruct that lusting, even after ones own wife, is adultery b/c you are devaluing the
person
 How do you resolve as trustee?
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
Choices:
 Personal Opinion: What you think adultery is
 Deferring to Authority: Should you defer to someone who is authoritative (and who would that be:
trust originators, new testament, Judaic encyclopedia)
 Objective / Subjective: Do we look for any reasonable plausible claim (objective), or do we look at
good faith claims (subjective)
 Resolving A:
 Do you look at what the trust formers said “they wanted to return to old time tradition” so interpret
this to mean that the intent permitted sleeping with other unmarried women
 Personal Opinion: They committed adultery — is it possible you are the trustee because of your
personal opinion
 Authority: Could you ask the trust formers? They probably think this is adultery
 Objective/Subjective: Is this even reasonable/plausible?
 What if he consulted the attorney first and then when and did the adultery?
 Good faith? Bad faith? Trying to find a loophole?
 Resolving B:
 Maybe defer to authorities on promise breaking? Well there was no promise broken here.
 If you say you have to defer to A and give him the money for his reasons, then you must find
against B, which goes against common sense
 Is this claim plausible and should they get money as long as it is plausible?
 But we should definitely reject both A & B and look to the authority of the trust formers and say
they definitely were clear about “this isn’t adultery”
 Resolving C:
 Well he hasn’t had sex w/ anyone who isn’t his wife, but if we reject polygamy then what?
 What does our personal opinion tell us? Well what if I reject the validity of polygamy?
 Is this claim plausible or reasonable?
 What if bigamy is illegal so he isn’t married to them both? Then we have sex w/ one wife and sex
w/ one non-wife.
 Resolving Someone Who Only Had A Religious Marriage?
 Resolving D:
 Authority? Well there is the statement in the new testament (a protestant might find the new
testament much more authoritative than the Pope/Church)
 Is this looking to the letter of the Ten Commandments, or to the spirit as embraced in the New
Testament?
 Resolving E:
 Authority? Well we have the Pope (not quite the new testament, but a Catholic might say the Pope
is more authoritative)
 Overall the trustee gets to decide what method he will use!
 What if they Don’t get the Money and they Sue the Trustee
 You are the judge, has there been a breach of contract
 Do you use your personal opinion
 Do you defer to the trustee
 Do you basically tell the trustee the same things he is already considering?
 Isn’t the basis of contracts that we want to effectuate the intent of the parties
 Who intent? The formers’ intent or the participants’ intent?
 So Thoughts
 Is our role as trustee different than our role as a judge?
 Should the judge take a procedural view of the trustee and defer to his substantive findings?
C. Adjudication - Levinson: Embarrassing Second Amendment (Bobbitt’s Modalities)
 Embarrassing 2d Amendment article:
 Changes in Law
 Heller: 2d Amendment protects right to possess handguns in the home in federal enclaves
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 McDonald: 2d Amendment is incorporated into all the states
 Goal
 This isn’t really about the second amendment, this is about the ways we interpret things
 Why is it embarrassing
 Well people like the ACLU vigorously defend the bill of rights, but those same people are huge fans of
gun control and pretend that the 2d Amend. isn’t anything to be vigorously protected
 Cognitive Maps
 Ways to graphically detail
 Manhattan Example: We naturally prefer the things we come from
 ACLU Cognitive Map: The ACLU over estimates the 1st Amend (free speech & establishment, but less
on the free exercise clause)
 Also almost no emphasis on 2d amendment and the 5th Amendment takings clause
 New Right (Reagan republicans) Cognitive Map: 1st amend (free exercise), the 2d Amendment, the
10th amendment.
 But less emphasis on other parts of the first amendment?
 Modalities (methods) of Constitutional Interpretation (borrowed from Prof. Bobbitt)
 Textual Arguments:
 Historical Arguments (original understanding and historical analysis):
 Structural Arguments: What are the logical ramification sof separation of powers, etc
 Doctrinal Arguments: Precedents of the Supreme Court
 Prudential Arguments: What would be prudent or imprudent (wise or unwise) (policy?)
 Ethical (Ethos) Arguments: Reference to conventional morality, not what you thik is the right
philosophical answer but what the American people think is the right answer for America (small,
limited government)
 Discussion of Modalities
 Point of the Modalities
 Bobbitt thinks if you have an interpretation that is grounded in one of these modalities, then it is a
legitimate interpretation
 What does it mean to say this is a legitimate interpretation?
 What counts as legitimate means what is perceived as legitimate by judges an lawyers
 The modalities are what the lawyers and judges regard as legitimate.
 Thus a decision (yes it is circular) rooted to a modality is a legitimate decision
 Bobbitt on Circularity: There is nothing about law we didn’t invent (unlike physics), and
there is nothing there but our practices in employing the law.
 So if we do this stuff and recognize it as legitimate, then it is what it is.
 What the law is depends on what we call it. We call a table a table b/c we choose to
call it that.
 Modalities Point Different Places, then what?
 Well if they point different places then we go to a justification argument on morality and it is
legitimate if w/in the legitimate range of the modalities we pick the choice that is most morally
attractive.
 We are looking for moral attractiveness which means it will be justified (sounds like Dworkin)
 Discussion on Dworkin:
 He had in his theory
 Legal Fit (threshold question) & Moral Justification (tie breaker)
 Legal Fit Comparison (Dworkin &
 Dworkin would find these as Legal Fits:
 Text
 History
 Precedent
 Levinson/Bobbitt Would put this here
 Structures (this is interpretation of a right as a structure which is in itself a legal fit?)
 Moral Justification
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



 Dworkin
 Moral Analysis
 Levinson/Bobbitt
 Prudence belongs here probably (this seems to be where Posner would put it too)
Broader Levinson Attitudes Alongside the Modalities
 What do we typically privilege?
 In the Bill of Rights we privilege expansive interpretation over narrow interpretation
 We privilege incorporation of the bill of rights through the 14th A over non-incorporation theories
 This often Results in a substantial pattern of Constitutional Violations
 So? We know the Gov. is doing some bad stuff so we need to interpret the BoR to fit with this?
 This means we will frustrate majority will and may cause some social harm
 Flag Protection: SCOTUS Held free speech is broad and includes freedom to burn a flag
 The majority may want this to be unprotected (stop flag burning) but that is majority tyranny,
and it also might cause some social harm b/c then the Government won’t be able to censor as
much troubling speech
 So these are the “prices” of privileging an expansive interpretation of the BoR
Second Amendment Modality Arguments:
 Textual Args: (remember we are looking for a legal fit argument to get us to a justification argument)
 Grammatical: the independent clause (right to bear arms) is the most important portion, and the
other dependent clause is merely a dependent, prefatory, preamble (but this doesn’t change the
meaning of the main clause)
 Words: People doesn’t mean the state. In other places in the BoR we use the word people to mean
people: 4th Amend., 1st Amend assembly. So there is no way to interpret “people” to limit the 2d
Amend. w/o doing damage to the rest of the BoR.
 Historical Args.:
 There was a common law right of a citizen to possess a weapon for lawful purposes. Lots of state
constitutions recognize this same right.
 Militia: There is lots of historical data showing the militia was thought to be every able bodied
citizen (all white men at the time), not what we think of as the militia today (as the nat’l guard)
 The best checks on power of the Federal and the State government is a populace that isn’t
disarmed (unlike China & Tienneman Square)
 Doctrine:
 Miller: There was no function of a sawed-off shotgun in military service as part of the militia.
 This is a short terse opinion, but this at least suggests that if there was a principled reason for not
having a sawed off shotgun, then maybe a rifle would have been okay
 Prudential Argument:
 There is a danger of tyranny
 There is a danger of self defense
 Gun control saves live
 But the caveat is that liberals typically say (one first amendment arguments) that there are
social harms we must pay for
 Maybe the argument that gun control states embolden criminals
 Ethos:
 What about American social norms about self defense? Norms of self-reliance and masculinity
Since there are multiple modalities, then we would have a moral justification debate
 But Levinson doesn’t really care about this
 What he cares about is showing that the ACLU (him included) should be embarrassed b/c of the view
they take on the 2d Amend. in light of how many of these modalities of constitutional interpretation
support the idea of a broadly determined 2d Amend. right.
Heller & McDonald Discussion
 Voting Patterns
 Heller: 5 (conservatives) / 4 (liberals)
 Irony:
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
Usually the liberals of the court take the broad interpretation stances towards BoRs, but here it is
the conservatives who take the broad interpretation
 Liberals wanted to take the view that wouldn’t have resulted in substantial constitutional
violations by the state
 The Conservatives want to view the 2d Amend in a way that finds many constitutional violations
by the state
 Voting on McDonald (incorporation)
 McDonald: 5 / 4 (liberal Stevens broadly criticizes incorporation doctrine altogether)
 Everything Stevens wanted to have incorporated, was already incorporated, so now let’s not
incorporate anything else
 Example
 Thomas: Establishment clause is federalism and not meant to apply to the states
 Stevens: 2d amend is a clause of federalism and not meant to apply to the states
 But they both disagree with the others methods and procedures for coming to such conclusions
 To understand what is really going on (Levinson would say)
 You must understand the modalities
 You must also understand the politics of interpretation (i.e., if Scalia takes one position, then the
liberals are likely to take another position, and then perhaps alter their interpretive stances).
 Adjudication Review: Bobbitt’s Modalities
 Types:
 Text
 History
 Doctrine
 Structure
 Prudence
 Ethos
 If it fits one of these modalities then it is legit = accepted by legal community as a legal practice
 If you have a modality, then move to a justification (moral) argument
 Pick the one you like the best
 Bobbitt claims all mainstream legal argument involves this mixture / process
 Dworkin/Bobbitt Interplay
 You have something that is a statutory right / structure to interpret, then there is the process of
adjudication (involves interperetaion), then you can do an interpretive procedure which is a mix of
legal fit and moral justification
 (Fit) Ask what does the text/history/precedent/ethos tell us
 (Justification) Then ask what does the prudential (Posner type view) tell us and what are the moral
arguments
 Add to this, Hutchinson’s forms of legal argument (below)
D. Adjudication - Hutchinson: Forms of Legal Argument
 Hutchinson
 Overview
 He is British so his examples are English and Canadian
 He is a deconstructionist, which makes him good at crafting arguments b/c he thinks everything can be
wrong
 He looks at standard legal moves / arguments that all lawyers engage in
 Moves and Countermoves
 Categories
 A) Law (precedent)
 This is an elaboration on what Dworkin would consider legal fit
 1) Literal v. Purposive Interpretation
 Do we focus on the words or the purpose?
 2) Narrow v. Broad Interpretation
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 Do we want to interpret a statute/case narrowly or broadly?
3) Detailed v. General Statements of Fact
 Do we want to state the facts broadly/abstractly or narrowly/detailed
 4) Old v. Modern Authorities
 Emphasize old sources b/c traditional or new sources b/c cutting edge
 B) Policy
 This is an elaboration on what Dworkin would consider moral justification
 1) Judicial Administration: Strict Bright Line Rules v. Flexible Standards or Balancing Tests
 2) Institutional Competence: Are the courts competent to answer the question before them?
 3) Equality: Emphasize formal equality vs. Substantive Equality
 Treat everyone alike all the time or perceive that like things are alike and different things
should be treated differently
 4) Morality: Freedom v. Security
 5) Deterrents: Are we deterring bad behavior that is bad or good behavior that is good
 6) Cost Benefit Analysis: Who bears what costs and who is able?
 7) Distributive Considerations: Who should be subsidizing who; who’s to buy the insurance
 8) Choice Arguments: Paternalism v. Anti-Paternalism
 Emphasize people making their own choices, or think we should make choice for others
 Hypothetical 1:
 Menow Case:
 Facts: Commerical host served alcohol and he left and got hurt. Commercial host held liable.
 New Case / Jones Case:
 Facts: Social host serves alcohol and the attendees leave and get hurt. Do we impose liability?
 Application of Argument Categories
 A-1)
 A-2) We could narrowly say this was just for commercial hosts, or broadly say that this applied to
all hosts
 A-3) This is tied to the facts and depends how we think of it; just a host or specifically a
commercial host. We can bring in more facts of foreseeability depending how we think of it.
 A-4) (if Menow were 10 years old) - Would argue this is a cutting edge decision that is tackling a
social problem of drunk driving. Alternatively argue that the long standing position was not to
impose liability in these situations, all we did in Menow was carve out a small exception and we
shouldn’t allow the law to run free — be conservative.
 B-1)
 B-2) This is what courts do, they innovate in the Tort law. Alternatively, this is such an imposition
on the social realm that the legislature should decide it as a matter of social policy
 B-3) A host is a host is a host (formal equality), or alternatively commercial hosts who are licensed
are very difference from
 B-4)
 B-5)
 B-6) Will this rule have a benefit by deterring wild crazy parties, or will it just deter people from
having fun social interactions which are part of our society.
 B-7) Is the host in a better position than the guests to insure against accidents that occur based on
alcohol served in the home. But D might argue that the drunk driver should have forborne getting
so drunk or should have insurance.
 B-8) Whose job is it to police when someone has drank too much
 Hypothetical 2:
 Smith Decision
 Facts: Free exercise of religion case; he was a member of the native American church and took
controlled substance peyote as part of religion. He is fired for consuming illegal drugs and seeks
workers comp but is denied for taking drugs. He sues under free exercise saying he was punished
for his religion.

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
Precedent:
 Sherbert Precedent (1963): Strict Scrutiny Balancing Test, 7th Day Adventist fired for refusing
to work on Saturdays (P won) (Smith would win)
 Yoder Precedent (1972): Strict Scrutiny Balancing Test, Amish family that refused to send kids
to school at a certain age (P won) (Smith would win)
 Reynolds (1879): No targeting test, the law here was a law of general applicability against
polygamy (Smith would lose)
 Held: Adopted a no targeting rule and distinguished Sherbert and Yoder so they are now the
exception
 Categories
 A-1)
 A-2) If we broadly interpret these cases we can see these were just times when the government
burdened religious practitioners, so SS (strict scrutiny) should apply. Or we read them narrowly on
the facts and then distinguish them
 A-3) If we hang on the facts we can hook Yoder to a SDP claim on parental rights, and then we can
make it look like these weren’t just religious cases.
 A-4) Argue that Reynolds was old case that has now been overruled, alternatively you would argue
that founding of country used a “targeting test” and that these were just modern cases in the liberal
1960s and 1970s.
 B-1) Targeting Test was Strict (determine on the facts); and SS was a flexible test. The bright line
rule would be an easy clear standard. Other would be harder to determine.
 B-2) The court (with a bright line rule) could avoid evaluating the important of peyote to one’s
religion.
 B-3) Peyote is banned for everyone (bright line rule), versus peyote is okay for some people to
whom it is really important. Smith would argue that free exercise clause is about substantive,
personal exercise of religion
 B-4) We need to protect some actions that might be against the law b/c they are parts of religion.
But alternatively we don’t want to create a religious exception to the criminal code (how far could
this go if we start allowing exceptions to be carved out).
 B-5)
 B-6)
 B-7)
 B-8)
 Hypothetical 3:
 Lochner: We are looking at what the attorneys on both sides should have argued in 1905.
 Precedent:
 1898 - Holden v. Hardy - Same facts but coal mine and the regulation was upheld (court
distinguished)
 Categories
 A-1) Literal would have found this essentially just a procedural right to freedom (and no procedure
was violated here), or you could argue for a substantive interpretation that finds the right to
contract, etc. that there was a substantive right to freedom
 A-2) A broad interpretation of SDP
 A-3) Facts could be construed to find that coal mines and bakeries as so different, or make them
seem similar. Also there was a history of underground mine regulations for them
exploding/collapsing. There was no similar factual history here.
 A-4) American tradition was that of a free market (and justices saw this as creeping socialism), but
there was also a focus on the modern end that we are seeing changes working environments and the
laws regarding workplace safety are a response to working conditions being more dangerous than
they sued to be
 B-1) The bright line rule could basically be both holdings (bright line towards right to contract or
bright line towards rational basis deference to government). Justices want a balancing test here
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






B-2) Court felt they were judicially competent, but the dissenters saw these as policy questions that
were outside the hands of the federal courts
B-3) The formal view is that the employer and the employee have the freedom to contract. But the
substantive view would be that they didn’t have equal bargaining power and there was no
collective bargaining so we should protect this.
B-4)
B-5)
B-6)
B-7) Who can afford to pay in this situation? Well the bakeries can afford to subsidize the workers,
and if we don’t put it on the employers then the employees will be unemployed and people will
then be on welfare and the taxpayers will be stuck with the bill
B-8)
E. Adjudication - Federalist Handout
 Federalist Handout
 Overview
 We have been thinking about all these models of legal interpretation and legal argument
 But we should also think about the scope of judicial power as it relates to the nature of the Constitution
 So how do we think about fit & justification in this area?
 Example: Suppose the court is reviewing/adjudicating an act of legislation that is a component of
the power of the constitution (Lopez and gun control law around schools under commerce clause)
 What also came up is whether the Court should be enforcing the federal structure (commerce
clause), or whether this was beyond Article III power and should instead be a matter for the
political process.
 Fit & Justification in this Scope of Judicial Power
 Considering
 Text / History / Precedent / Ethos
 Prudential Arguments / Moral Arguments
 Hypo: Think about the Court’s supreme authority to interpret the Constitution (So we must interpret
Article III) and we are looking at Federalist 78 (Hamilton’s explication of why courts have the power
they have: has the power it needs and ought to have)
 Might look like the Court has more power than Congress and the People (Court  Legislature 
People), but really if they are only striking down unconstitutional acts, then they are only striking
down ultra vires acts
 So real model is People (at top)  they established the Constitution  Articles: III (courts) &
I (legislative)  Legislative = Power to make law/statute; Judicial = Power to interpret
laws/statutes AND power to interpret the Constitution
 So the Court has no power to invalidate Article I legislation; the power is to identify when
there is a conflict with a statute and the Constitution and thus which is valid
 So this argument is looking at legal fit and what Article III says, but also a prudential justification
argument about the scope of the judicial power and the nature of the Constitution
 We must think about this to answer why and how do courts engage in adjudication and
interpretation
 So with Lopez, do the normal rules apply or are we going to tag this as an exception (exceptions
like political questions, foreign matters for president)
 So when a Court interprets the 14th Amend., there is also lurking in the background an issue of
why the Court gets to adjudicate it anyway (maybe a standing argument gets raised that takes this
14th Amend. interpretation out of the Article III realm of the Court)
 So in all constitutional questions you have a procedural question of whether the court has the
power to interpret and the substantive issue of the actual interpretation
 What about situations when people like Scalia & Stevens Disagree?
 Consider Art. III alongside Separation of Powers, Federalism, & American Democracy
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 Is this power consistent w/ S/P? With the fact that SCOTUS is part of the federal government
and we now have 50 states, and alongside the concepts of American Democracy and the Power
of the People
 Calder v. Bull Facts: It was a will contest case and Justices Chase & Iredell had a long
philosophical digression
 Chase: He is thinking about NL as regards the Article III power.
 Said we have reasons that we created compacts in the federal and state constitutions. The
purpose was protecting NL and natural rights.
 Therefore is a legislative act violates one of the natural rights, then it may be explicitly
unconstitutional, but it is at least implicitly unconstitutional b/c it violates our natural rights
 The power of the Court involves the power to protect the purpose of the Constitution’s
implicit protection of natural rights (broad view of Judicial power / Narrow of
legislative)
 Iredell: If the law is explicitly unconstitutional then we have the power to strike it down
 But if the law might be implicitly unconstitutional then judges ought to uphold it b/c we
can’t agree on what the natural rights are.
 When we can/do agree on natural rights, then we install them in the Constitution —
until that time we are going to defer
 Broader view of legislative power / more democratic view / less judicial power
 What they are both doing is contemplating the theory of adjudication and the power of the
court; how to interpret the power to adjudicate against the backdrop of the scope of judicial
power and the nature of the Constitution.
 Adjudication Review (Post Hutchinson & Mid-Federalist Handout)
 Courts interpret
 Rights & Structures
 We know we have aspects of
 Legal fit / Moral justification
 Modalities (involving “fit” [history text precedents] and “justification” [academic moral theory,
Posner’s economic analysis])
 Hutchinson’s branches of “Law” and “Policy” on interpretation
 Literal vs. Purposive Interpretation
 Narrow v. Broad
 Judicial competence
 Etc.
 Thoughts on Judicial Philosophy
 Scope of Judicial Power (is it broad or narrow)
 Nature of the Constitution (living or historical)
 How do we answer questions about judicial philosophy
 We begin by considering interpretation and looking at a combination of fit and justification
 So the interaction of
 Federalist Handout
 Chase & Iredell
 Chase: Have Constitutions to protect natural rights, so the const. implicitly makes violations of natural
rights unconstitutional b/c it does not make them explicitly unconstitutional
 Living constitution
 Iredell: Narrow view of judicial power & a text/history based view on the constitution
 What do they want
 They both think it is a violation of natural rights
 Chase: If it isn’t explicitly unconstitutional, then it is at least implicitly and we can enforce it
 Iredell: Well since this is only implicitly unconstitutional then we need to leave the issue to the
legislature
 Politics of the Judge and Impact
 The views of the judge (their political/philosophical views can drastically alter how they apply/interpret
legal fit and moral justifications)
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 Robert P. George
 Explanation of Judicial Philosophies:
 Bork (Scalia Plus)
 Modern disciple of justice Iredell
 Dworkin (Brennan or Thurgood Marshall)
 Modern disciple of justice Chase
 What leads these judges to have differing views of the judicial power?
 Hamilton’s Art. III Argument:
 Sep. of Powers argument; has to do w/ the text and history of the Constitution
 We are actually interpreting the structure of the government?
 Judicial philosophy is not just an interpretation of the substantive matter at hand, it is also an
interpretation of the judge’s own power
 Foreground: The 14th Amend. substantive debate over right to privacy
 Background: Debate on whether Art. III authorizes review under the meaning of the 14th Amend
 So the Court is focused on the 14th Amend but we are automatically interpreting the exercise of
Art. III power by nature of the system (procedural interpretation and substantive interpretation)
 We are automatically asking questions of broad/narrow, etc. judicial philosophy whenever the
Court interprets.
 Note: Is this similar to the inner morality of law (the inner adjudication/interpretation of law?)
 So what we do with the 14th Amend depends on our inner interpretation of our judicial
philosophy and Art. III.
 What would some judges/figures argue
 Bork & Scalia:
 Would argue that the original understanding of constitutional interpretation, is that we adhere
to the original interpretation . . . (tautological)
 Basically saying that the framers were originalists
 Other Arguments:
 Broad power undermines democratic majorities and democratic structures (this can be a fit
argument of adhering to history, or a justification argument that people deserve to have
moral issues resolved in the democratic process)
 Dworkin & Brennan
 Basically that this is a living constitution, so we should adopt the best view of the constitution
 And that “best view” is the living constitution view b/c it gives judges power to alter things
 Other Arguments:
 The big contrast to majority rule is minority rights (which need to be protected). As a
matter of history look at the 14th Amend and the BoR (we will have a better democracy is
the majority is stopped sometimes from harming the minority)
 How do the different sides deal w/ bad precedent (like Dred Scott case)
 They flog the other sides view
 Conservatives: This was the liberal judge’s fault b/c this was an expansive SDP case
 Liberals: This was the conservative judge’s fault . . . Art. V on amendments is too cumbersome
 Quotations of Interpretation
 1) (Aristotle) We need to have interpretation that minimizes discretion
 2) the justification issues (what you bring to the document are what matter)
 3) (Jefferson) We need legal fit arguments that constrain judges & lawyers
 4) Spirit (justification) is important
 6) we have a living constitution
 7) “I don’t like laws against contraceptives, but Art. III doesn’t give me the power to interpret the 14th
Amend so broadly”
 8) Courts are to protect the rights of minorities (just as democratic principles of legislatures protect the
majorities)
 9) There aren’t a lot of checks on SCOTUS so we have to be careful about our authority and the minority
may need to suffer some hits
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 11) Harvard profs. have the most influence on the judiciary (so naturally we view judicial power as
broader); and average Joes get to vote so they view legislative power as broader
 12) The values that Art. III judges will import into the 14th Amend will be the values of those people who
come from a certain political social class
F. Adjudication - Spelunkian Explorers
 Case of Spelunkian Explorers
 We are still having the same adjudicatory/interpretive thoughts
 Facts: Cavers are trapped, they are going to starve, they agree one will be killed and eaten, one backs out
and then is chosen and killed and eaten. They are prosecuted for murder and there is a non-discretionary
death penalty.
 Issues:
 Interpretation of the statute (to see if there is an implied exception for necessity to kill)
 Role of the Court in light of the Separation of Powers (this cross cuts w/ the first issue)
 What is the scope of the necessity exception if there is one
 Chief Justice Truepenny (affirm - overall lower court is affirmed b/c tie judgment)
 Normative Positivist: Judge who thinks you ought to adhere to the law (don’t add a bunch of stuff)
 This is someone like Thomas or Scalia
 There is no loophole in the statute, and if we don’t like that these people will be executed then the
prosecutor shouldn’t had prosecuted them or the Chief Executive should pardon them
 Men are guilty under the plain language
 Justice Foster (reverse)
 Natural Law Judge
 1) Once the men are in the cave they are under the Natural Law of Newgarth
 So the natural law b/t the men was that they were in a state of nature and they engaged in a social
contract of how things would be resolved (similar to how we say that executioners can kill people
in our society who are found guilty)
 Since they agreed, and made a reasonable agreement, then they didn’t do anything wrong
 2) (alternatively) If the PL of Newgarth governs, then we have to read in the purpose of the murder
statute and if there is an implied exception we must apply it (but circularly the purpose is implied
through natural law)
 Purpose: Deter unjustified killing. But we can’t deter this type of thing and this is analogous to self
defense
 In the same way we have a self defense exception, we should also find a necessity exception here
too
 Justice Tatting (abstain)
 Confused and Can’t Make up his mind
 Picks on Foster: How many days and how much rock b/f we decide as a legal principle that they were
in a state of nature?
 Additionally, if Newgarth law doesn’t apply, then why are we adjudicating it in Newgarth?
 Also, is this really Natural Law is a protestor is forced to undergo this “agreement” and gets killed
 It is unclear there is a single purpose under the statute, and self defense is based on absence of
willful intent
 Justice Keen (affirm)
 Normative Positivist
 Good & Bad are not judicial prerogatives: what judges do is interpret the law
 Foster likes the gaps in statutes b/c he can read in his views, but Keen thinks there is no reason to read
in controversial purposes to carve holes into the statute; that is not faithful to our law or judicial duty
 If we stick to our rule as courts in only applying the law (not finding implied exceptions) then the
legislature will stick to their role and actually legislate the exceptions they want (otherwise they’ll be
inspired to merely right broad laws and let the court work out the necessities)
 Justice Handy (reverse)
 Legal Pragmatist / Skeptic
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We need the law to reflect popular opinion (90% want them to go free; and the judges seem to want
them to go free too just not sure how to reach that outcome)
 Argues we should read the statute in light of our common sense view to find a necessity exception
 We will use tools to find a pragmatic result
 Related Cases
 Holmes Decision (American Example) (1842)
 Facts: N. Atlantic, boat carrying immigrants goes down and lifeboat is being swamped so pursuant
to captains orders a number of people are thrown out of the boat (but none of the staff). Sentenced
to manslaughter and President refuses to pardon. So manslaughter + no pardon.
 Regina v. Dudley & Stevens (1884)
 Facts: 3 men on lifeboat are stranded and two conspire to kill the weakest one and they kill him and
eat him. Charged & convicted of murder, but pardoned by queen. So murder + pardon.
 Scope of Necessity
 In the Rope example (bottom guy slipping and gets cut loose so he doesn’t drag them down)
 Review
 Adjudication Review (Post Federalist Hand-out and Mid-Spelunkian Explorers)
 Thinking about interpreting a right and a structure in the Constitution
 Interpretation leads us to fit and justification discussion
 But Interpretation also leads us to an interpretation of adjudication itself
 Role of the Judge
 Nature of the Constitution
 So we can enter a whole other interpretive exercise of fit and justification for how much power to
interpret, we interpret Article III to give judges (or how to interpret the Const as a whole: living vs.
historical)
 This interpretive tangent into the role of the judge and the nature of the constitution can alter our fit
analysis (for example focusing on history vs. text) or our justification analysis
 Federalist Handout Review
 Federalist 78: Why do courts have the final say?
 Calder v. Bull: Chase & Iredell view
 Chase as forerunner for (one view [liberal?])
 Iredell as a forerunner for (another view [conservative/historical?])
 George: difference b/t people like Bork/Dworkin and Scalia/Marshall is really just a difference about
their view of the constitution as a whole
 Quotes
 Spelunkian Explorers
 Looked at: (1) interpretation, (2) role of the judge, and (3) contour of the necessity exception
 Spelunkian Revisited: Contour of Necessity
 Comparison
 Holmes Opinion: class of persons chosen
 D&S: weakest person chosen
 Spelunkian Explorers: Lots drawn for who is chosen
 Judges Kozinski and Easterbrook revisited this
 Easterbrook: no reason 5 should die when just one could; if the “lots” system was fair then we should
not uphold the conviction
 Note on Handy
 Typically the economic analysis might not “coincidentally” fit with public opinion
 Handy is also writing in a way that is more pragmatic than a pragmatist would ever admit (he would
just have his pragmatic thought and then write a rhetorical opinion)
G. Adjudication - Fallon: Implementing the Constitution
 Fallon - Implementing the Const.
 What are we talking about:
 Talking about the creation of doctrine
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Doctrine: Text, rules, frameworks for analysis
Ex: 4th Amend says “free from ....” Most agree consent searches are consistent w/ 4th Amend.
What is the doctrinal explanation for why consent is okay under the 4th Amend?
 Reasonable: Consent searches are reasonable, so consistent w/ 4th Amend
 The theory we choose impacts the implementation result we construct
 Might just require us to say that in absence of coercion, it is reasonable (view today)
 Waiver: Consent searches are a waiver of the 4th Amend (that it is waivable)
 Sends us to traditional waiver analysis: voluntary, knowing, & intelligent.
 This theory might require a police warning
 Not a Search: Consent searches are outside of the definition of a 4th Amend search (b/c you
give up your reasonable expectation of privacy).
 Ex: Interpreting a right (i.e., 14th Amend Equal Protection Clause) but we also want to construct
doctrine
 Say we are historical proponents: The main purpose when enacted was about race in ways it
was not about disability
 Disability isn’t necessarily excluded, but no one was thinking of this likely when it was
enacted
 How do we implement this meaning into a doctrine that can become case law?
 SS: to race classes we apply strict scrutiny (presumptively invalid) (government usually
loses)
 Rational Basis Review: for disability classification we have a lower level of scrutiny
(government usually wins)
 So this is a doctrine based on our view of the Constitution that is supposed to implement the
meaning in a predictable fashion that will guide litigants and courts
 Tiers of Scrutiny:
 Criticism is that the different tests and tiers of scrutiny that emerge have very little to do
with the Constitution
 Non Court members who criticize the tests are often conservatives (saying just use the
constitution)
 Court members: in the equal protection area court members on the conservative side
wanted to keep the levels of scrutiny and the liberals want to just eyeball all the statutes
and not be confined by judicially created tests
 Question: is the addition of the doctrine helpful/harmful/reflective of constitution/not?
 How do we get from a right/concept in the constitution do an implemented doctrine
 I - Fidelity to the Constitution
 Say we have 14th Amend and Article III (judicial supremacy - final say-so)
 Everyone agrees we need to be faithful to the 14th Amend, but strict scrutiny and all those tests are
not in the 14th
 Fallon is saying that the institutional mission of the Court is to implement the Constitution, and the
only way to do that is with doctrine
 So Justices have to be faithful to the whole Const., not just Art. III and not just to 14th Amend
 14th Amend calls for certain things, and Art. III calls for implementation, so the justices must make
rules that strike a balance in implementation
 II - Creation of Doctrine: What should the Court think about when it makes doctrine
 Const. Provision/Meaning compared to Doctrine - Factors for the Court to look at regarding the
distance b/t the two - What factors lead to the court choosing different doctrines
 Courts make mistakes - not a the main concern for Fallon
 Ambiguity - the constitution is often vague and just lays out normative ideas/concepts
 14th Amend tells us nothing about affirmative action (race) or mentally retarded mistreatment
(disability)
 4th Amend is also vague regarding what is consent in context of the normative ideal
 We need doctrine to specify; try to be faithful as we can be, but have to make some stuff up
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Stare Decisis / Precedent: You can’t be faithful to Art. III goal to implement Constituion if you are
constantly overruling doctrines every time they are wrong—justices need to leave sub-optimal
doctrines in place
 Judicial Competence: What types of doctrines are judges competent to use (think of Hutchinson)
 Fairness of Judicial Resolution: Some doctrines implement an idea that a decision isn’t for the
judges but for the political branches
 Uncertainty in Litigation: Opinions are often concerned about breeding litigious uncertainty
 Empirical Guesses: Often concerned about how the doctrine will actually work
 Free speech being chilled w/o a doctrine more broad than the 1st Amend was an empirical
guess about how people were likely to react
 Examples:
 Free Speech & Defamation: NY Times v. Sullivan test may not actually reflect what the first
amendment say, but we need to evaluate all the factors above in making a doctrine that is realistic
and workable and use “empirical guesses” to consider how chilling might occur if we don’t chose a
protective enough test.
III - What does this lead to (const. provision/meaning + doctrine = under- or over-inclusive)
 Over-enforce: Some doctrines may over-enforce the Constitution, but it will be thought of as a “better”
test in light of the compromise
 Under-enforce:
 Examples:
 SS & EPC - Strict Scrutiny is probably over-enforcing the 14th Amend. Think of the challenges the
Court faced in Grutter v. Bollinger when it wanted to uphold affirmative action at the university.
 So you have to stick to your doctrine b/c the alternative might be more problematic
 Rational Basis & EPC - this is a view that some things might deserve more 14th Amend protection,
but we choose a weaker doctrine/test b/c a stronger test may be a negative trade-off of uncertainty
or more litigation or causing other problems highlighted in the factors above
IV - Typology of Doctrinal Tests
 This isn’t comprehensive; but most con law tests are more or less these 8 or a combination of them
 1) Forbidden Content: You just can’t do it
 This isn’t really a test at all; more like a doctrinal rule
 Ex.: Commandeering the state legislature by the federal government; no test, just not allowed.
 2) Suspect Content Test - SS - this is a presumption that something is forbidden and we can only get
around it with a high showing of state need
 3) Balancing Tests - Intermediate Scrutiny (Special Strict Scrutiny sometimes) - Things aren’t
absolutely forbidden or as hard to show
 4) Non-Suspect Balancing Test - Rational Basis Review - Government wins almost every case
 5) Purpose Tests - What is the government’s purpose? (basically subjective purpose; see also number 8
below which is basically as subset of this one)
 Ex.: Secular purpose? Race/Discriminatory purpose.
 6) Effects Tests - Is there an prohibited primary effect of the law?
 Ex.: Effect to discriminate; effect is not secular?
 7) Appropriate Deliberation - Did the legislature engage in appropriate deliberation
 Ex.: Were wrongful stereotypes used for example in gender discrimination cases
 8) Aim (basically [objective?] purpose) - What was the objective purpose of the legislature, not what
they really thought but what a reasonable person would attribute to them looking at the statute
Examples
 Often the examples will illustrate how these tests work together, and how you might get one answer in
the initial test you apply, and then that sends you to another test like SS or rational basis review
Discussion
 How true are we in the implementation of the doctrines we implement?
 Sometimes we pretend to apply strict scrutiny, but are disingenuous and the state wins; and
sometimes we say Rational Basis Review but we strike the law down and don’t adhere to the fact
that the government had a rational basis.
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Perhaps at some point we become too faithful to just the doctrine and less faithful than the
Constitutional norms, so maybe this means that sometimes we have to silently alter the doctrine a little
or we have to overrule precedent to get back to being true to the constitutional meaning
The high level abstract idea is that maybe we can improve the vague normative constitutional
provisions by making-up some implementing doctrine that is remotely true to the constitutional ideas
 Sometimes over-enforcement is worth the cost b/c of the factors to be considered above
 Other times under-enforcement is worth it b/c other reasons in the factors above
Fallon doesn’t discuss how Art. III feels about judges creating doctrine that exceeds their power
 Maybe an argument is that when the principle under interpretation is unclear, then the Court should
defer by just upholding
Art. III & Stare Decisis
 Fallon argues that judges are required to consider precedent (give it weight)
 But some say that no, judges are only bound to the constitution, not other cases
 Some say that Art. III neither mandates nor prohibits it
Does Art. III require creation of implementing doctrine / Construed w/ Federalist 78
 Does the Court ever invalidate legislation?
 Or does it merely identify things that are already knocked down by the constitution?
 Argument we are thinking about is that Art. III doesn’t empower the court to create doctrine, only
empowers them to interpret when laws are outside of it
 Is the power of Court under Art. III very minimal (Hamilton)
 Or is it broad and the Court can engage in over- and under-enforcement by making doctrine?
H. Adjudication - Dred Scott & Attached Handout (Departmentalism or Co-ordinate Review)
 Point of Reading Dred Scott
 Use it to think about a host of Constitutional issues: interpretation, authority, slavery
 Declaration of Independence (Mentioned in Taney’s majority, and in the concurrence/dissents)
 What is the Declaration of Independence (how does it fit w/ our legal system & Constitution):
 Is it a Statement of Founding Principles?
 Yes: What the Constitution is supposed to accomplish (Founding Principles)
 Lincoln: it was the statement of founding principles
 Example: Frame is to adorn the picture (or sometimes the picture is the main focus instead).
So the Declaration of independence is the core, and the constitution and other things are
the frame that adorn the picture (founding principles)
 Jefferson: Common sense of the American Mind
 No: Deprecate the Declaration of Independence: It is propaganda circa 1776
 Was narrow propaganda w/ a limited political purpose (no need to assign greater meaning)
 Does the Declaration of Independence Constitute a Constitution (what constitutes a Constitution)?
 Declaration doesn’t constitute government
 But it does constitute founding principles; principles of what we won’t do b/c the British
government does do it
 The Declaration constitutes our political polity (political community)
 Opening line of Lincoln emancipation speech referred back to 1776 (4 score and 7 years ago)
 This is what we date America’s birthday to
 Declaration of Independence & Slavery (what does it say
 If it is a statement of founding principles that we care about, then what does it say about slavery?
 Plain Text: Appears to be incompatible w/ slavery based on broad language (all men created equal)
 But original draft of Dec. of Indep. had specific condemnation of slavery that was taken out
 Thoughts on Compatibility of Slavery and D of I
 1) Taney - D of I is compatible w/ slavery b/c when it said “men” it meant “white men” only.
 2) Taney - Hypocrisy - The founders must have meant “white men” b/c they can’t be hypocrites,
can they?
 Maybe they were just hypocrites
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3) Lincoln - D of I as a statement of principles is an aspirational document & it sometimes takes
time to be faithful to our principles; it was an aspiration to end slavery as soon as prudently
possible
 But, slavery had become more profitable by 1820s in the south (despite aspirations in 1776 that
it was on the way out)
 Lincoln is arguing he is the conservative/traditional view; and the South was the radical group
that was becoming bigger newer proponents of slavery
 Constitution & Slavery: Is it a pro-, neutral-, or anti-slavery document?
 Where does slavery appear?
 Art. I - 3/5s Compromise: Free persons = full persons (100%); “others held in bondage” = 3/5s for
purposes of taxation and representation
 Art. I - Protects the slave trade until 1808 (20 year postponement b/f restrictions on slave trade)
 Art. IV - Fugitive Slave Clause: Persons who escape from bondage and make it to a free state, then
they can’t stay and if caught must be returned to the slave-owner
 Well what is it?
 Neutral: It is pro and anti in some respects (compromise on representation and delay on abolition)
 Compromises intended to keep it a state issue and avoid arguing about it on the national level
 Pro: 3/5s compromise was obviously a reference to slavery; failure to use the word “slavery”
doesn’t change the understood meaning; the slave trade is actually protected for 20 years; fugitive
slave clause essentially enforces slavery
 So argued New England should secede from the “slavery” constitution prior to civil war . . .
 Anti: “Slavery” never appears as a word in the document (was present in confederate const.)
 As Lincoln would argue: Since Constitution is animated by D of I (which is anti-slavery) then
the Constitution is also anti-slavery.
 Discussion:
 Resolution of this dispute may depend on what interpretive tools used
 Art. III View - apply judicial methods to resolve issues
 Art. I or II - Political process so defer to those methods to resolve it
 Realistic view that much of New England was complicit in the slave trade (ships flew American
flags and parked in New England ports)
 Arguably these three provisions were necessary (south wouldn’t have ratified w/o at least some
equivalent provisions)
 Since the document talks about natural rights principles, was it obviously anti-slavery, but with an
attempt to be written in neutral terms
 Riding the Tiger: A lot of people may have been opposed to slavery, but didn’t know what to do
with the slaves if we let them go (even people opposed to slavery were still very racist)
 Garrison (someone Nowlin mentioned) would argue that since slavery is so wrong, if you don’t
oppose it explicitly, then the document is pro-slavery
 Dred Scott Opinion (1857)
 Overview
 Everyone thinks its wrong, but people disagree about precisely why it is wrong
 Some might even argue that it wasn’t so wrong at the time is was drafted b/c it was a product of its time
 Facts:
 Dred Scott (in Missouri) a slave of Sanford (in NY). Scott sues that he is being held in bondage
illegally by Sanford’s agents in MO. Jurisdiction and merit facts collapse: if he is a slave then there is
no jurisdiction
 Arguments
 That he is free: He resided in a free state in the territory (started in MO, taken to Ill., then to Wis. (a
free state under the MO Compromise), then back to MO)
 Common Law in MO was if you took slave to free state then you emancipated him
 Slavery is against natural rights, so if you take the slave to somewhere where slavery is against the
law then the bondage goes away (and most states didn’t think you could re-enslave people)
 But MO overturned years of law and said that Scott was still a slave
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Political Intent of Case Originally:
 Was going to be decided on narrow grounds (his citizenship is based on what MO says)
 Taney Opinion
 Issues/Holdings
 1) Can African Americans be citizens, even if free and recognized by a state?
 No, there was color bar in the Constitution
 2) MO Compromise was Unconstitutional (Art. IV & 5th Amend due process arguments)
 This Compromise was what said some northern territories would be free
 Art IV - Congress can’t regulate subsequent federal territories (Article only allowed reference
to the one original territory) argument they couldn’t even regulate federal territories like DC
 5th Amend - SDP argument that violates property ownership one can have in slaves
 1) Taney’s argument that African American’s can’t be citizens?
 Said, “don’t blame Court, I’m just interpreting the Constitution”
 D of I only meant white men, otherwise they would be hypocritical
 Constitution’s “we the people” meant “we the white people,” b/c otherwise we wouldn’t have the
seemingly pro-slavery provisions in the Constitution (3/5; 20 years for slave trade; fugitive slave)
 Counter Argument:
 These were provisions of aspiration that banned slavery in principle
 Were also African American citizens in US & States on the date of ratifying the Constitution
 Also, state citizenship was prerequisite to federal citizenship b/c States came b/f the Union
 Note: Both sides invoke original understandings of Constitution / D of I
 2a) Taney’s argument that Art. IV doesn’t allow Congress to regulate “territories” and create free areas
 Art. IV refers to original territory (and if Congress could buy a huge territory and the “run” it like a
super-state, then that wouldn’t be federalism).
 So territorial legislators get to govern as incipient states (getting ready for statehood)
 Counter Argument: But read literally Art. IV does allow this
 Frankly Congress needs this power to get anything done (how else will they become a state w/o
congressional guidance)
 Modern reading is Congress has police power in federal territories that it can hand off to
incipient states
 2b) Taney’s argument that 5th Amend SDP creates a right to own slaves
 No real argument, just a conclusory statement that you law could be dignified that takes away
property rights when you enter a certain state
 Counter Argument: There was ordinary legislative process, so you had all the due process of law
 Questions of Judicial Supremacy
 Overview
 Court As Supreme: Then this is over until we amend the Constitution
 Court Not Supreme: (there was a debate going on at the time about supremacy of the Court)
 Departmentalism: The three departments of government are equal in their interpretive authority
to interpret the Constitution
 Dred Scott Impacts:
 Supreme (Buchanan View): Wouldn’t give blacks passports or grant them patents b/c Court said
they weren’t citizens
 Not Supreme (Lincoln View): Granted them passports and patents b/c he refused to defer to
decision of the Court he thought were wrong
 Congress while Lincoln was in office banned slavery, and basically SCOTUS - we double dog
dare you to strike it down
 Lincoln’s Views:
 At inauguration: Says if we are to have self governance, then we can’t just say this is so simply
resolved by just what SCOTUS says in a case. In a democratic government, there has to be balance b/t
the branches
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But if this is the view, then what power does the Court have (What is its point? Just to interpret
federal laws?)
 Settlement as Tyranny: McCullough v. Maryland said that if every agrees to let the Court settle
disputes we won’t have so many constitutional disputes. But Jeffersonians/Departmentalists say this is
just another name for tyranny
 Lincolnian Departmentalism v. Jeffersonian Departmentalism
 B/f Lincoln was a Republican, he was a Whig (Which descended from Federalists and Hamilton)
 Jeffersonian - No deference to Supreme Court; clear assertion of co-equal authority and we should
push-back when we think they are wrong
 Lincolnian - Deference to Supreme Court along lines similar to stare decisis
 The deference he gives as the President to Court decisions, is the same deference he would give on
stare decisis ground if he were a Justice of the Court (stare decisis isn’t absolute: balancing
correctness and stability)
 Sometimes will be important for stability that the President adhere to the decision (sometimes not)
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