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Dworkins Interpretative Theory A. Key Characteristic: Legal interpretation requires the making of moral judgments.

- This doesnt discount positive laws (which may be unjust), it simply assert that morality will have a significant influence over the way rules (including positive laws) will be understood. Laws are not limited to rules (statutory codes, judicial decisions, and other official documents) explicitly adopted as authoritative by the political community. It isnt just a collection of norms or the result of power politics (not just based on how people act and how the people in power decide). It is an expression of the philosophy of the government. Moral principles of the fundamental purpose of the government and its relationship with its people; serves as a legitimate basis of legal decisions and a guide for the interpretation of legal rules in hard and unclear cases. Laws are explicitly adopted rules PLUS the best moral principles behind these rules. How to determine the best moral principles behind explicitly accepted rules? A person must judge for himself/herself which fits: Fit is a matter of logical consistency. It doesnt have to be completely consistent (impossible to expect), just with MOST of the rules to show to reflects the philosophy of the government. Fit must be a principle that justify the rules. It must explain how its a good explicitly adopted rule. Persons will disagree over what is morally best. Morality is always a point of contention. Deciding as an individual might mean an incorrect legal outcome but a judge under Dworkins would act in good-faith to determine what is morally best. B. Example: 4th Amendment - The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures by government. Logically consistent and explain how the rule is a good one: Not about government using whatever means to detect criminal activity. Not logically consistent because if this was the principle, there should be little or no limitation to search for possible crimes. About the principle of privacy (both in the physical and informational sense) and peoples consent to give it up. Not an absolute right but there needs to be a basis for it to be taken away. - Olmstead v. United States (1928) allowed wire-tapping because privacy was understood only as searches and seizures which are simply physical manifestations of privacy. - Under Dworkins theory, the moral principle of the 4th Amendment is to protect privacy (so the person can protect himself from others who might wish to do him harm) and informational aspect of privacy is just as relevant to this principle as its physical on. - The right to privacy can also be understood dependent on the intimacy of the information to the person (i.e. contraception or abortion v.s. drug testing) C. Criticisms and Responses Criticisms: People will be skeptical of the law. The moral disagreements of people will be unavoidably played out in the sphere of legal interpretation. This will cause disputes over interpretation and what is right. There is no right moral answer. Responses: Disagreement doesnt mean there is no right answer. People disagreed about the position of the earth but it was still correct so say its not the center of the universe. (However this doesnt respond to the concern of skepticism of the law

External Skepticism: No objective standard to determine what is true or false for morality. Unlike statements of empirical features of the world, morality has no basis that is universally accepted as a standard for it. Problem this argument poses: How is there moral obligation when the world is comprised of empirical facts? Where do obligations come from and what is the authority that obligates us? Are these obligations real? The only basis we can measure this with in the world is empirical facts and there is none with morality.) (Though it isnt just about the lack of empirical facts. It is also about weighing the competing modes of moral argument)

and its possible deprecations.) This rests on the false premise that there needs to be fact to understand what is right or wrong and that empirical standards are necessary to resolve such disagreements. It is possible to be meaningful and reasonable without empirical facts. torturing babies are wrong wrongness is perceived differently from a question of height but it is still possible to reasonably argue why it is wrong. (Correct to argue that reasoning for moral questions will always be different from empirical one but this doesnt respond to the multiple ways people can reason morality.)

(Could have simply accepted that the basis of moral theory is an unproven assumption that there are right moral answers. It is a reasonable *** But isnt empirical standards what the critics assumption that there is right and wrong: torture are trying to weigh these differences with? Its not and genocide) as if you just compare one mode of morality with one empirical standard. Its about comparing *** Is it really a safe assumption when there are different modes of morality with one empirical clear grey areas (Torture in times of war) standard to ascertain which one is more correct. Internal Skepticism: The best moral principles arent enough to separate law from power politics. The legal system is fundamentally unjust and oppressive because the system promotes the interests of the wealthy and privileged at the expense of the rest of society. Different rules reflect incompatible moral viewpoints. There are moral contradictions and inconsistencies. Dworkin disagrees with the assessment that there are contradictions in law and that it is oppressive.

D. Assessing Dworkin: - Differences with: Aquinas: traditional version of natural law theory identifies unjust rules as invalid rules. For Dworkin, positive law can be unjust but how it will be understood will use morality. Fuller: principles of legality are sufficient to create prima facie obligations to obey the rules of any system of positive law. You follow the law because of the position of legality of such rules. For Dworkin, legal obligation roots more of the integrity of the law because it is based on the best moral principle. - Assuming but not conceding that cases require moral judgments of individuals, it does not give judges the authority to decide using their own moral judgment. The correct moral judgment doesnt mean the correct legal answers. One alternative is to rely on judgment widely accepted in society.

Dworkin: The integrity of the law is the result of correct morality. What is widely accepted doesnt necessitate correct morality. There is no assumption of good-faith when dealing with society in general. Integrity might not assure justice but it guarantees that morality, to some degree, is used to determine the law. Dworkin never explained why law needed to be determined by morality. He explained that laws should not be mere products of power politics but never explained why it cant be just that. Legal Positivism A. Key Characteristic: Rejects the idea that genuine law is a just law. They reject the necessary link between positive law and morality. Law does not need to meet any moral test. - Austin: superior alternative to Blackstone and Aquinas traditional natural law theory. - H.L.A. Hart: developed version of positivism that addresses the flaws of Austins version of it. Austins Theory of Law A. Key Characteristic: Law as Command. Laws are rules laid down by superiors to guide the actions of those under then. - Laws impose obligations on those whom it covers. They are liable to have undesirable actions done unto them if they act contrary to said commands. Commands by God: divine laws with moral obligations (heaven and hell). Commands by political rulers: positive laws with legal obligations (jail). Commands by society in general: Positive morality which are informally accepted by society (low opinion of offenders) - Positive laws: laid down and enforced by the sovereign of an independent political society. Sovereign is the supreme power (It is defined by power and not morality. It does not need to claim to be just). Obeyed by people but doesnt obey any other earthly power. - The question of the existence of law is separate from the question of it merit/demerit. To say that positive laws which are inconsistent with divine laws (morality) are not laws is absurd because the most pernicious laws are enforced by judicial tribunals. To proclaim that unjust laws are void will lead to anarchy. A wise benign rule will be similar to a stupid tyranny. - Positive morality is an important source of positive law. *** But doesnt this concede that morality is the basis of law since positive morality comes from the collective morality of individuals as well? B. Example: International Law - Rejects international law as law. There is no global sovereign to enforce the commands. Positive morality at best, with no legal obligation. C. Criticisms and Responses Criticisms: To claim that pernicious laws will still be implemented is value neutral because natural law theorists agree. The question is: does the implementation of it assume validity given that it Responses:

goes against morality? It is not enough create validity for the law by punishing those who believe it unjust and invalid. It is an illegal employment of brute force. The argument that traditional natural law theory invited anarchy is questionable. It assumed that law should be judged based on its practical consequences. *** And comparatively, its not like people wont cause anarchy if laws that are being imposed are pernicious. The bigger consequence with the natural law theory is the progress achieved by the rejection of unjust laws. This can outweigh the disorder it might cause. Disobedience and conflict can sometimes result to moral progress (Civil Rights Movement and Matin Luther King) Hart: Laws as Primary and Secondary Rules

Anarchy will result from natural laws theory. There are too many conflicting ideas that it cannot result to moral progress. (shows the difference with Aquinas medieval society which had a collective moral belief based on the Church and Austins modern society which was more secular and diverse in its moral beliefs.)

A. Key Characteristic: There are different types of legal rules. - Some legal rules cannot be completely understood as a command. While criminal law (which prohibits certain actions) fit the command characterization, some legal rules empower individuals to do things that would normally be impossible to do. B. Example: Contract law - It empowers individuals to enter into legally binding contracts. While they can still agree, it isnt legally binding without the rule of contract law. - Power conferring rules- empower both individuals as well as public officials. Gives people the power to enforce contracts and judges the power to interpret the law. C. Criticisms and Reponses: Criticism: Still like commands in an important way: the goal is to alter the world in some way instead of simply affirming the way the world is. Even the powerconferring rules seek to change society by empowering individuals. Also, power conferring rules are still issued by the sovereign. They allow people to enter contracts and write wills. It is still based on their say so. The lack of delineation of declarations from commands of the sovereign doesnt mean that it cannot be explained in the terms of the power of a political sovereign. Fear of the consequences is the primary motivator of individuals to be obliged to act in a certain way. Responses: Legal obligation cannot be limited to commands backed by threats because this is equitable to a gunman. While a person might comply and give his money to a gunman in fear of undesirable consequences, it does not mean that he had the obligation to give his money. Being OBLIGED to do something is different from being OBLIGATED to do it. (Natural law will understand the distinction between the gunman and the sovereign as morality) Obligation must be explained in terms of the idea of a rule. And a rule exists when people generally (1) act in a certain way, (2) deviation from that way of acting is something to be criticized.

*** Sounds a lot like morality. Given people act a certain way based on their idea of divine law/morality, then the rule can only call on obligations when it is moral for the collective. There must be a great deal of social pressure to conform to the rule. The rule must maintain a certain aspect of society that it regards to be important which can sometimes require individuals to act against their own self-interest. It isnt solely fear that motivates people to follow primary rules (this can happen only in extreme cases; which is still legitimate) but with the regards that its violation is something to be criticized. A genuine legal system requires a unity of primary and secondary rules Primary Rules: Rules imposing obligations. Identified by society (Common laws. Social norms) Secondary Rules: Cannot exist unless there are rules that impose obligations. 1. Rule of Recognition- a rule that singles out the rules that actually impose obligations in society. People must recognize the rules which they will be made accountable. Diminish uncertainty over peoples obligations. 2. Rules on how legally valid rules can be changed- adapt to changing conditions. 3. Rules to empower specific individuals to enforce and apply societys legally valid rules- ensure that obligations being imposed are met. People must generally comply with the legal primary rules and officials must accept the secondary rules and enforce primary rules (identified by the rule of recognition). This means that public officials must regard the departure of these rules as something to be criticized. The existence of a legal system is a matter of degree and not all or nothing. The absence of secondary rules means that the Nuremberg trial wasnt enacted by legal system (given that it was incomplete). But it is the best feasible way to promote the establishment of an international rule of law (since it enforces primary rules and attempts to create secondary ones) The government isnt as arbitrary as a gunman. There is basis for the primary rules which is what they uphold with the secondary rules.

How can international law constitute a genuine legal system if it requires the unity of primary and secondary rules? Specifically looking at the Nuremberg trial.

The extreme case scenario (with fear being the sole creator of obligation), which Hart still recognizes as legitimate, is still comparable to that

of a gunman.

Positive law ultimately stems from the exercise of power by some human agency. Morality does not necessarily regulate it. Hart separates himself from Austin by affirming that the rules of positive law themselves empower specific individuals to make, enforce and apply the law. They direct the sovereign on how those tasks must be carried out (secondary rules). Possible to have a sovereign that acts arbitrarily but it is also possible to have a different kind. Unlike the gunman, this sovereign is limited by secondary rules. Both the arbitrary sovereign and the gunman are on the same side of the line because they both have arbitrary power. (Never explained why it is more relevant to account the use of power instead of who is wielding it. He only provided for a method to address the need to counter arbitrary use of power, through the secondary laws, but never why it was necessary. Natural law would say that it is because the use of power calls on a prima facie force of morality. It identifies what is right or wrong.)

Difference of the gunman and the sovereign is the power they hold: which is why one can only oblige a person to act but not impose legal obligations.

Summary: The dividing line between Natural law and Positivism centers around the concept of legal obligation (how it is understood, how it is enforced, and is morality necessary) Harts International Law Connection between threat backed by an order with morality but there is a danger of exaggerating it and blurring the difference of law and other means of social control. Though the union of primary and secondary rules has this possibility, it is a sufficient condition for the application of the term legal system but not law. It is the nature of law and not the definition of law that must be assessed. Example: German case: certain laws should not be considered as valid due to their moral iniquity. This must be rejected. Not because all rules in a system must be called laws or the weight of usage. It must be rejected because the exclusion of what is morally iniquitous will narrow the class of valid laws but not advance or clarify theoretical inquiries or moral deliberations. A. International Law - International law isnt structured similarly. It lacks legislature, courts with compulsory jurisdiction, and centrally organized sanctions. This makes it more of a social structure (primary rules of obligation) than law (lack of secondary rules of (recognition, change, and adjudication). - Is international law really law? Not dismissing the doubts caused by the current use of terms (order backed by a threat/secondary rules) and will not affirm the existence of the

union of primary and secondary. Look at the detailed doubts a will a wider usage of international law obstruct any practical or theoretical aim. - Some think its a question of accepting the current model/understanding of international law or moving away from it. Too shallow. Must also look into what principles have guided it to its existing usage. B. Doubts - Laws as commands backed by threats How is international law binding? How is something binding? It is a valid rule which a person has an obligation or duty to follow. Confusions with occupied Belgium. Absence of centrally organized sanctions. Nature of law begins from the assumption that its existence makes certain conduct obligatory. This, however, is a question of law arising from within some system of law. It doesnt question the validity of international law, simply the scope of it. Assuming that Article 16 of the Covenant of the League of Nations and Chapter VII of the UN Charter cannot replicate the sanctions of municipal laws because it can easily be paralyzed by a veto The argument still assumes the obligation theory of orders being backed by threat. Even municipal rules, which have effective organized sanctions, need to differentiate external predictive statements (I am likely to suffer for disobedience) and internal normative statements (I have an obligation to act a certain way). The latter assesses a persons situation from the point of view of rules as guiding standards of behavior. Not all rules call for obligation but the ones that do so call for personal sacrifice, conformity, and criticism of deviation. There is no good reason to limit the normative idea of obligation to rules supported by organized sanctions. Different environment and context. In a municipal setting, individuals have approximately equal physical strength and vulnerabilities. Physical sanctions are necessary (so the ones who do follow the rules arent victims for doing so, no natural deterrence because the crime can be hidden/easy to escape, easier to commit a crime because the other is an approximate equal, and simplest form restraint) and possible (it can be used with small risks but adds to what other natural deterrence there may be) The use of violence between states must be public. The risk of war is high because it isnt predictable but the costs are great. Fear isnt the only factor given there is already a strong

Municipal systems have provisions which are necessary (such as prohibiting the free use of violence and provisions for the official use of force as a sanction). Why are they not necessary for international law?

natural deterrent. There general pressure of conformity to these rules which makes it obligatory: a breach of such laws can justify the demands of compensation, reprisals and counter measures. (only efficacious if there are willing parties to launch counter measures but this doesnt discount that organized sanctions arent a necessity in international law unlike municipal laws)

States are incapable of being subjects of legal obligation. A state is not by nature outside the law. A state refers to (1) a population within a territory under an ordered government provided by a legal system (legislature, courts, primary rules) and (2) government enjoys a defined degree of independence (some are dependent: federal states of the US, colonies, protectorates, etc. some have legislature which reflects their dependence but not all. Dependence will be reflected in other ways such as limitations of powers to internal affairs or a puppet government). There are many different international authority and limitations on the independence of states. The differences are important because it addresses the idea that sovereigns cannot be bound by international laws. Sovereign now is simplistically understood as independent, not subject to types of control, and has an area of conduct that is autonomous. While a certain degree of autonomy is important, it does not mean that it must be unlimited. States can only know if they are sovereign and by what degree they experience it if there are rules which identify them as such. While international law is vague and more space is given to municipal law to identify a citizens freedom, it doesnt mean that absolute sovereignty belong to states.

A state which is a sovereign should not have obligations. It is inconsistent to say that a sovereign is subject to law. It is a Being inherently lawless but the source of laws. The notion of sovereignty is not applied on a legislature or a person within a state, but the state itself.

In a municipal system, we assume there must be a sovereign legislator with no legal limitation. With international systems, we assume it must be able to respond to sovereigns incapable of legal limitation save by

No way to know what sovereign states have until we know what the forms international laws and whether or not they are empty forms.

themselves.

Voluntarist or auto-limitation- absolute sovereigns which self-impose international obligations. Counterpart of the social contract.

(1) Never explained why sovereigns can only be obligated when it is self-imposed and why it should remain to be the assumption. (2) Inconsistent in itself to say that sovereignties are only subject to themselves. Even if it is self-imposed, there is another they are bound to. It is a promise to give rise to obligations. This means that there needs to be an acknowledgement of fulfillment. Even the most voluntary form of social obligation involves rules that are binding independent from the choice of the party bound by them. This is inconsistent with the supposition that sovereigns are free from all rules. (3) States can only be bound by self-imposed obligations, no other obligation exist under the present rules of international law. Modern international law is very largely treaty law and is dependent on consent (whether given freely, tacitly, or inferred). There are some exceptions: A new state: bound by general obligations of international law including rules that give binding force to treaties. A state acquiring territory or undergoing some change, brings with it the incidence of obligation which it didnt have before. Effects on non-parties of general or multilateral treaties. This proves that the assumption that all international obligations are self-imposed has been based on abstract dogma and little facts.

C. International Law and Morality - Some claim that morality is the difference between municipal and international rules. This is based on the idea that every social structure that isnt reducible to orders backed by threats can only be a form of morality. - For international law specifically, there are multiple reasons why it should reject the classification of its rules as morality. States constantly reproach each other for immoral conduct or praise each other for fulfilling international morality. Some action might, but not all of it, will be subsumed under international law. Morality is not international law.

Appraisal of states conduct in terms of morality is different from formulation of the claims, demands and acknowledgement of rights and obligations under the rule of international law. Morality doesnt deal with fear of threats of retaliation or demands of compensation. International law, like municipal law, is joined with moral appeal. What predominate in the arguments between states are references to precedents, treaties and juristic writings. There is often no mention of morality, right or wrong. Relations of states are half way houses of what is clearly law and what is clearly morality. Rules of international law are often morally different. A rule can exist for organization and have no moral purpose. Examples: how many witnesses can be valid/which side to drive on. Not all are morally neutral but there are some which exists. It might result into changing a persons morality but it isnt the attempt. Morality is an ultimate standard for human action to be evaluated on. It is an absolute a non-negotiable value. International law is open to change. International law must rest on the conviction of states and that there is a moral obligation to obey them. it cant be helped that some might act based on what they conceive as morally acceptable. But this doesnt mean morality must exist in international law, only that some might follow it due to morality. Reason for accepting the law will always be diverse. Even with municipal laws, some voluntarily accept a more coercive system. Summary: None of the said difference between municipal law and international law is significant. It is sufficiently analogous to municipal law. Order backed by a threat fear of retaliation. Not assured retaliation due to the possible veto can also be paralyzed by a general strike. Municipal law need a basic norm/rule of recognition international law is a set of primary obligations which the rule giving binding force to treaties is one. It doesnt need to contain a basic norm. It can be binding even if its a set of separate rules. If rules are accepted as standards of conduct and supported with social pressure distinctive of obligatory rules, then it has what municipal law has.