Intro to Law Reviewer Day 1 & 2

8/6/2019 Intro to Law Reviewer Day 1 & 2

1/27

INTRODUCTION

TO

LAWREVIEWER(FIRST AND SECOND DAY)


2/27

REGINA IUSTITIAE SORORITY

REGINA IUSTITIAE SORORITY Page 2 of 27

FIRST DAY

THE TRIAL (Der Process)

Take note that Franz Kafka is one of the greatest scholars in thephilosophical movement known as existentialism and that his workdeals with themes such as absurdity and hopelessness. It might beeasier to regard his works with that in mind because some of hisworks will seem weird and oddly contradictory if viewed as anormal piece of literature.

This is Franz Kafka's posthumous work, wherein a man called Josef K. (hereinafter called K.), a senior bank clerk, is arrested for anunidentified crime. The men who come to arrest him do not specifyunder whose authority they are acting. It is a diatribe on the legalprocess and philosophical ruminations on justice and how it ishandled in light of a judicial process like the courts.

This is the plot, in a nutshell, from Wikipedia:

On his thirtieth birthday, a senior bank clerk, Josef K., who lives in lodgings, is unexpectedly arrested by two unidentified agents for an unspecified crime. The agents do not name the authority for which they are acting. He is not taken away, however, but left at home to await instructions from the Committee of Affairs.

K. later visits the court and stands in the witness box pleading his case.He then returns home.

K. later goes to visit the magistrate again, but instead is forced to have a meeting with an attendant's wife. Looking at the Magistrate's books, he discovers a cache of pornography.

K. returns home to find Frulein Montag, a lodger from another room,moving in with Frulein Brstner. He suspects that this is to prevent him from pursuing his affair with the latter woman. Yet another lodger,Captain Lanz, appears to be in league with Montag.

Later, in a store room at his own bank, K. discovers the two agents, who arrested him, being whipped by a flogger for asking K. for bribes, as a result of complaints K. previously made about them to the Magistrate. K.tries to argue with the flogger, saying that the men need not be

whipped, but the flogger cannot be swayed. The next day he returns to the store room and is shocked to find everything as he had found it the day before, including the Whipper and the two agents.

K. is visited by his uncle, who is a friend of a lawyer. The lawyer was with the Clerk of the Court. The uncle seems distressed by K.'s predicament. At first sympathetic, he becomes concerned K. is underestimating the seriousness of the case. The uncle introduces K. to an advocate, who is attended by Leni, a nurse, who K.'s uncle suspects is the advocate's mistress. K. has a sexual encounter with Leni, whilst his


3/27



uncle is talking with the Advocate and the Chief Clerk of the Court,much to his uncle's anger, and to the detriment of his case.

K. visits the advocate and finds him to be a capricious and unhelpful character. K. returns to his bank but finds that his colleagues are trying to undermine him.

K. is advised by one of his bank clients to visit Titorelli, a court painter,for advice. Titorelli has no official connections, yet seems to have a deep understanding of the process. K. learns that, to Titorelli's knowledge,not a single defendant has ever been acquitted. He sets out what K.'s options are, but the consequences of all of them are unpleasant: they consist of different delay tactics to stretch out his case as long as possible before the inevitable "Guilty" verdict. Titorelli instructs K. that there's not much he can do since he doesn't know of what crime he has been accused.

K. decides to take control of matters himself and visits his advocate with the intention of dismissing him. At the advocate's office he meets a

downtrodden individual, Block, a client who offers K. some insight from a client's perspective. Block's case has continued for five years and he appears to have been virtually enslaved by his dependence on the advocate's meaningless and circular advice. The advocate mocks Block in front of K. for his dog-like subservience. This experience further poisons K.'s opinion of his advocate, and K. is bemused as to why his advocate would think that seeing such a client, in such a state, could change his mind. (This chapter was left unfinished by the author.)

K. is asked to tour an Italian client around local places of cultural interest, but the Italian client short of time asks K. to tour him around only the cathedral, setting a time to meet there. When the client doesn't show up, K. explores the cathedral which is empty except for an old

woman and a church official. K. decides to leave, as a priest K. notices seems to be preparing to give a sermon from a small second pulpit, lest it begin and K. be compelled to stay for its entirety. Instead of giving a sermon, the priest calls out K.'s name, although K. has never known the priest. The priest works for the court, and tells K. a fable, (which has been published separately as Before the Law) that is meant to explain his situation, but instead causes confusion, and implies that K.'s fate is hopeless. Before the Law begins as a parable, then continues with several pages of interpretation between the Priest and K. The gravity of the priest's words prepares the reader for an unpleasant ending.

On the last day of K.'s thirtieth year, two men arrive to execute him. He offers little resistance, suggesting that he has realised this as being

inevitable for some time. They lead him to a quarry where he is expected to kill himself, but he cannot. The two men then execute him.His last words describe his own death: "Like a dog!"

The two excerpts: "Before the Law" and "Dialogue between a Priestand K." are found in The Trial by Kafka. The first is a parable, andthe second is a dialogue between two different ideas. Take notethat the first excerpt is found within the second. The Problem of our Laws is a short story, also by Kafka.


4/27



Before the Law:

The parable discussed in this excerpt concerns a doorkeeper andone who wants to pass through it. The doorkeeper is only the firstof a series of doorkeepers, but warns the man who seeks to passthat he is only the first and there are many beyond him, each moreterrible than the last. The man asks if he can ever be allowed inand the doorkeeper says that its possible but not right now. Soinstead of leaving, the man sits by the door and every so oftenasks to be let in, only to be rejected by the doorkeeper. The manponders this question: If the law is meant to be accessible toeveryone, why must it be so difficult to get access to it?

Through the rest of his years, he sits and waits to be let in by thedoorkeeper, doing everything he can to gain access, includingsacrificing his belongings to bribe him and asking the fleas on thefur collar of the doorkeeper to let him pass, to no avail. Thedoorkeeper accepts the bribes only because he did not want theman to think that he (the man) failed to do anything. The manwaits at the door until his senses start to fail him. While his eyesstart to fail, he begins to see the "radiance that streams from thegateway of the Law." Just before he expires, asks the doorkeeperwhy, if everyone strives to reach the Law, no one else has tried toenter. The doorman, seeing that the end was near for the man,said this: "No one else could ever be admitted here, since this gatewas made only for you. I am now going to shut it."

Dialogue Between the Priest and K:

The chapter begins with K. being tasked to show an importantItalian businessman around, who doesn't show up. He then startsto look around their meeting place, a cathedral. Just as he is aboutto leave, a priest calls out to him by name, although K. doesn'tknow him at all. It turns out he is a court employee. He tells K.about the parable of "Before the Law" (discussed above). Thedialogue excerpt is about the two of them discussing theinterpretation of the parable.

The priest (up in the pulpit) talks about his case and how he thinksit's going badly and that K will be proven guilty. K laments that it is

a mistake and that he is not guilty, so how is someone who isguilty be found guilty. The priest says that is how the guilty speak,but makes no presumptions of guilt against K. K says that everyoneinvolved in the proceedings has something against him, andinfluence the others who aren't involved. The priest says thatverdicts do not appear suddenly but are arrived at gradually. K sayshe needs help but the priest says he's looking for help in the wrongplaces, and says that he shouldn't look for help in a woman. K


5/27



argues that women are powerful and that the people in the courtare women chasers. The priest becomes frustrated with K.

The priest comes down from the pulpit and K says that he finds thepriest very friendly and because of this he can speak openly to himmore than he could with anyone from the court. The priest tellshim not to fool himself, and then starts discussing the parable of "Before the Law."

Afterwards, K believes that the doorkeeper cheated the man, butthe priest told him not to believe his opinion before checking it. Ksays that its quite obvious that the man was cheated, and that thedoorkeeper gave him the information that would help the manwhen the man would have no more use of it. The priest said thatthe doorkeeper had a duty and that the man had not asked beforethat. K continued by saying that if the door was intended for theman then the doorkeeper should have let him in. The priest saysthat the doorkeeper explains two things about access to the law:first, that he can't allow him to enter NOW but maybe later on, andsecond, that the door was meant for him alone. If one of thestatements contradicted the other, then the doorman cheated, butaccording to the priest, they didn't. The priest goes on to discussthe many features of the doorman, in that he is incorruptible,precise, duty-conscious, simple-minded and a little arrogant, butthat he is also friendly by nature and even humors the manyquestions and requests of the man which do not contradict hisduty. Not every doorkeeper would have withstood the many yearswith the man. The priest concludes that there are many ways bywhich the doorkeeper's actions may be interpreted.

- - K asks the priest if he thinks the man was cheated, and the priest

states that he does not make any opinion about the doorkeeper; heonly points out that there are many interpretations. The textcannot be altered, and people's differing opinions are onlyexpressions of despair over it. The priest says that there areinterpretations that say that the doorkeeper was cheated, becausehe only knew the outside of the law but not the inside of it. Hisideas of what the law are are supposedly childish, and while hetreats the man as a subordinate, he is also subordinate to the otherdoorkeepers inside, all of whom are more terrible to behold thanhimself. The free man is superior to one who is subservient to

another. The man being made to wait was free to leave and goanywhere except inside the gate guarded by the doorkeeper; heonly chose to stay and wait outside. The doorkeeper had no suchfreedom. Guarding the gate meant for the man alone meant thatthe doorkeeper could not leave but wait for the whole of the man'slife to see if he became worthy to pass through it. In this way, thedoorkeeper was subservient to the man, and could only be releasedfrom his duty at the close of the man's life.


6/27



K sees the point of the priest and says that maybe the two versionsof who cheated who are not incompatible. The priest says that thisis another opinion expressed about the parable. The priest saysthat you don't need to accept everything as true, you only have itaccept it as being necessary. They arrive in piece at the end of theirdiscussions, both at differing sides of the argument.

K becomes tired thinking about the different interpretations of thestory and thinks that the fairly simplistic story at the beginning lostits shape. K believes its time for him to leave the cathedral butclaims to be lost in the dark. Before the priest leaves, K calls backto him to wait. K asks if the priest wants anything from him, butthe priest says no. K says that he was so friendly to him earlier, butnow abandons him as if he were nothing to the priest.

"First, you need to understand who I am," said the priest. "You'rethe prison chaplain," said K., and went closer to the priest, it wasnot so important for him to go straight back to the bank as he hadmade out, he could very well stay where he was. "So that means Ibelong to the court," said the priest. "So why would I want anythingfrom you? The court doesn't want anything from you. It accepts youwhen you come and it lets you go when you leave."

The Problems of Our Laws

This excerpt discusses the problems of law to the common man(meaning, one not versed in law such as barristers/lawyers). K.talks about how difficult it is to grasp the laws when they're

created and guarded by the elite, and how difficult it is to be ruledby laws one does not know or understand.- Laws are ancient, their interpretation has been the work of

centuries and such interpretation has been so well regarded thatthey've become like the law itself. Such interpretation can only bedone with restriction, only by and for the nobles. He talks abouthow nobles stand above the law and it is because of such aposition that the law has been entrusted to them. There is "wisdomin it, but also hardship" for the ones who are not afforded theopportunity to grasp the law.

The fact of the existence of such law is in itself a presumption

because they are presumed to exist, and the reason why is onlyallegedly told to those who hold it -- the nobles. It becomes funnybecause maybe the laws they are trying so hard to understand maynot exist at all. He states that there is a small movement thatbelieves that the Law is whatever the nobles do, and that popularopinion cannot factor in its interpretation or creation becauselistening to their good points cannot offset the heavy drawbacksthat will come in when listening to them.


7/27



He puts stock in the belief that time will come when the worldrealizes that the law is incomplete without societal input and thelaw will belong, finally, to the people and the nobility will vanish.This is nothing against the nobility and is more of a remark of self-hatred of the ordinary people for not being "deserving enough" tobe entrusted with the law. And therefore a paradox exists becauseonly in the rejection of the nobility can this kind of vision cometrue, but no one is strong enough to unite as a force before them."The sole visible and indubitable law that is imposed upon us is thenobility, and must we ourselves deprive ourselves of that one law?"

Law: Lex (law) v. Ius (justice)Dr. Jur Eric Engle

WHAT IS LAW:

- An exclusive answer is not what is meant to be achieved but rathera number of definitions that will be consistent with one another.Thus, natural law, positive law, law as prescription and law asdescription will be distinguished to arrive at a definition.

- Distinguishing between law and justice will allow focus oncommand and right.

- Engle states that unlike Kenley, he regards law as a conflicting setof conditional statements and consequent imperatives rather thanas hierarchically harmonious set of norms.

o A number of norms that are the same ultimately form a unity of norms. This unity of norms can be traced back to a single basicnorm that is the basis for all the number of norms that emanatefrom it. These types of norms are usually known as moral norms.For example: Not to lie, not to cheat and keeping a promise are allthe same kind of moral norms that are derived from the basic normof truthfulness. What is important to know here is that many moralnorms are usually just derivations of a basic general norm (fromthe general norm to particular norms derived from it).

- Normative reference to law is necessary for law to have moresignificance than something done by force. The teeth behind lawisnt only physical violence but more of a moralobligation/sanction.

METHODOLOGY :

1. Legal Science - To be able to answer what law is it must be the object of

scientific inquiry. But as any of the natural sciences, legalscience is not exact. It is nomothetic meaning it presentsprinciples which are laws in the strict sense.


8/27



- Nomotheses cannot be derogated from and must reactexactly as they do.

o Example: If water is heated it eventually boils andevaporates, as a natural science they must act exactly asthey do.

- In human science however, legal science included, it isdifferent. It cannot be said that because of a certain eventthe same outcome will be obtained every time. This isbecause the object concerns human beings, and humanbeings have volition (will). Humans have the capacity to actand interact with the environment.

- Human science cannot have non-derrogable laws but canonly have general trends and tendencies. This doesnt meanthat there is no human science because it is still possible tomake statements regarding human tendencies and trendsand be able to make general predictions.

- These predictions however, are not exact but onlyapproximates. The differing possibilities and limitations of human sciences should be recognized.

2. The Empirical Method - One test to determine whether a position is scientifically

known is when a prediction can be based upon it. So if acertain fact is known, then a prediction may be based uponit.

- If a fact is unknown it is possible that it will be known in thefuture although at present it is unknown. An unknown factmay also just be unknowable. An unknown fact cannot be

the basis of science but it may give rise to speculation andhypothesis.- Ideas may be true, false, unknown and possibly also

unknowable ever.- Through empirical testing, knowable facts can be verified.

Through empirical testing, the observation that if X acthappens Y result occurs and thus from future instances itcan be inferred that the happening will recur.

- Empirical verification can also be done in human sciencesalthough it is less exact as compared to natural science.

- A theory can be verified if there is a correspondencebetween material reality and the predicted outcome. So in

terms of legal science, we need to determine what thepredicted outcomes in law are.- For law we see predictions of legislators or a judge as to

what will happen if a certain act occurs. But thesepredictions are not always accurate and what happens iseven beyond the possible outcomes and those written in lawbooks.


9/27



3. Scholarly Law versus Practical Law - The absence of the correlation between law in the books and

life can be solved in two methods.- First is the idealist approach. Here it is argued that material

reality is an imperfect reflection of ideas and that failure of persons to conform to the law and the law to punish themimply that the law and justice or the person and justice isnot a correct relation. This approach however is empiricallyincapable of verification. Being incapable of science thepaper rejects this method.

- Second response is to look at law critically. First, Scholarlylaw are those in books which include statements of judgesand a description of what is ruled on by judges in a certainset of facts. Second is Practical law (law in the streets) orwhat in fact happens. When law in the books and law in thestreets correlate or actually happen, then that could meaneither a very just regime or a tyrannical one. When they donot correlate and are way out of balance then a revolutionoccurs and a new ruling class takes control.

LAWS ARE CONDITIONALS AND IMPERATIVES

- Reading the law in books, all laws are stated as a conditional thatwhen actuated will trigger imperatives. For example, if you stealsomething then you will be punished. If the conditional is fulfilledthen the imperative reward or punishment happens. The degree of correspondence between these conditionals and their outcome isnot always accurate but it is a measure of the efficacy of the lawand the government enforcing it.

- A direct correspondence between the conditional and imperative isimpossible because of free will. Also, the laws of legal systems arealmost always imperfectly enforced and thus legal science is notnomothetical .

- To consider legal science as nomothetical would be that every lawwill be enforced everywhere, at all times without exception andthat humans behave exactly alike, which is clearly not the case.

- But despite the impreciseness with which legal science acts, it isgenerally enforced and so, generalized predictions can be made asto the probability of an event following another.

- Legal science is dialectical. o The law is dialectical in that it mediates between right andright. Both or all sides of the controversy have some good. And

so the job of the law is to mediate between the rights of twosides, to adjust or accommodate and to sacrifice as little aspossible of what is right on both sides.

o Dialectic in the Aristotelian sense, in that it is the object of discourse. Meaning that different legal opinions are comparedto get a better sense of which governs human behavior.


10/27



Example: When a judge is presented with the plaintiff and defendant, two sides are presented which arecompletely opposite. The decision of the judge is thedialectical synthesis of these competing positions.

o Dialectic in the Marxist sense, wherein law is an element of asuperstructure of a particular mode of production, which

justifies and defends a particular mode of production at aparticular point in history.

- Scholarly law (law in the books) is understood as authoritativestatements of legislators and judges consisting of conditional andimperatives. However, not all imperative commands are a result of conditionals found in scholarly law.

o It is possible, however, for the legislative to issue a purelyimperative statement or a conditional statement that triggersno imperatives.

- Conditional statements can also consist of rules, exceptions to therule and exceptions to the exceptions. This process of exceptionscould continue indefinitely.

- Conditional statements of the law could be procedural rules of positive law or substantive rules, which could reflect principles of natural law and/or natural justice.

o Substantive rules of law are from procedural elements of positive law or substantive aspects of natural law, natural

justice or a combination. o The conditional statements of substantive law are made of

procedural rules, general principles of law and/or fundamentalrights.

META -R ULES 1. General Principles:

- General principles of law are a source of meta-rules which isa concept of civillianist law. It is a source of international law,and also of persuasive authority in domestic law in civil law

jurisdictions but not in common law jurisdictions.- General principles of law are reflected in principles of equity,

embodied as maxims of law.

2. Fundamental Rights and Rules of Procedure: -

Unlike civil law jurisdiction, common law countries haveadopted constitutionally binding charters of rights and havegiven their highest courts the power to review theconstitutionality of ordinary laws.

- Constitutional charters are reflections of fundamental rightsand freedoms found in natural law and natural justice.

- These common law charters of rights and freedoms operatesimilarly as the civilians general principles of law.


11/27



- Fundamental rights (especially in the United States) aregenerally limited to individual freedoms (worded as negativefreedoms freedom from as compared to positive freedoms:the right to). They contain collective freedoms as well.

- General principles of law/fundamental rights can thus be seenas conceptually the same. It is seen as:

o Binding or non-bindingo Independent sources of law or reflections of natural

law/natural justiceo Collective or individualo Negative (freedoms from) or positive (rights to)

- However these rules are constituted, general principles of lawand concepts of fundamental rights and freedoms are rulesthat determine how to form other rules.

- Fundamental rights are essentially substantive and are a morelimited concept than general principles of law, which are bothsubstantive and procedural.

- But both fundamental rights and general principles of law aregenerally binding rules and for that they are similar. Becauseof similarity they may be invoked in theory but less in practicebecause of generality and ambiguity.

- Fundamental rights and fundamental freedoms:o First generation rights: freedoms asserted by the rising

middle class and proto-industrialists were in thenegative freedom from as compared to positiverights to

o 1848 socialist revolutions inaugurated positive rights to.The rising working classes asserted a right to minimumstandards like hours, wages, etc. thus the rights to

expressed not only fundamental constitutional rights butwere also strengthened by secondary legislativeadministrative law.

- What these freedoms and rights have in common is that theyreorder the principle of distributive justice. The bourgeoisrevolution began the era of distribution based supposedlyon merit. While the socialist revolutions introduced a principleof distribution according to need.

- The evolution from negative freedoms to positive rights to allclasses shows the historical dialectical character of theelaboration of rights. General principles, fundamental rights,fundamental freedoms and rules of procedure are all example

of meta-rules rules about making rules.

LAW AND J USTICE :

1. Law as description and law as prescription - Some assert that there is a connection between law and

justice and thus a bad law that serves no justice is not a lawat all. This is true in that one is justified in breaking an unjust


12/27



law since there is no crime in breaking a law that is criminalin itself. However it is not true in the sense of law asconditional predictive statements.

o The prescriptive power of law (normative character) arisesfrom the idea that law reflects morality.

o But the description of a conditional or command of law ismerely positive law. Thus, an unjust law may have nomoral prescriptive force but have a practical descriptivevalidity.

2. Legal Science is not strictly nomothetical - The dual character of law as prescription and law as

description can also be seen from the fact that legal scienceis not strictly nomothetical since the ruler and ruled have thecapacity to act.

- Because legal science is not nomothetic we account for thevariance between what is prescribed (scholarly law) and whatactually happens (practical law) as the difference betweenprescription and description.

- The dual character of law as prescription and descriptioncan be seen from the empirical method and shows that thevalidity of a law is not dependant on its moral character(although most laws have some element of morality, itsenforcement is not dependent on this moral character).

o Thus, those who break unjust law do so at their ownrisk, because as a law it still must be followed even if wefeel it is unjust.

3. Law as Prediction - Law is a description of what is and prescription is what law

should be. Yet, law is also a prediction of what can happen inthe real world.

- The law is not always unjust, and a tyrant can create bad lawsbut having state power, they must be followed. However,these immoral laws will eventually be broken by majority of the people and eventually become unenforceable (goodexample is the people power revolution against martial law).

o In this sense, natural law is self-enforcing.

4. Positive Law and Natural Justice - A connection between law and justice is not necessary since

a law can be just and when it is, it partakes the nature of natural justice. A law may partake of natural justice withouthaving the needed force to make it effective. Thus a juststate must exhibit a tempered union of natural law (force)and natural justice (morality).

o Two types of unjust states:


13/27



Powerless states that lack the capacity to enforcewhat appear to be just laws.

States that are powerful but enforce unjust laws.

5. Distributive and Corrective Justice - Distributive justice determines the general principle

according to which public goods are to be distributed: merit,need, equality or inequality.

- Different states have different principles of distribution. This just goes to show that the system of distribution is positiveand conventional rather than natural and inevitable.

- Corrective (transactional) justice sees to it that privateexchanges are fair and equal.

o That parties to a contract are not cheated, the victim of anothers negligence are compensated.

o Corrective justice, however, may not be translated intopractice. Natural justice is not inevitably translated intonatural law.

6. Ex ante legislation and ex post judgment (temporal view) - Ex ante means prior to the act being adjudicated.- Ex post means a decision made after the act.- Laws are enacted almost always ex ante and judicial

decisions are ex post , although these decisions may have ex ante effects to future litigants.

o Genocide was ex post as there were no treatiesproscribing it until after WW2.

- One of the achievements of the bourgeois revolutions was toreplace arbitrary tyrannical ruling with decisions based onmerit.

- The arbitrary character of aristocratic rule was replaced bythe elimination of ex post facto laws.

o Ex post facto laws are laws that make an act a crime,which was not a crime when it was committed. Example:Person X was smoking in a car while driving. The nextday a law is passed prohibiting smoking while driving acar. Person X is then arrested for the act of smokingprior to the enactment of a law.

o No crime should be made after the fact ( nul crimen sin

lege ).- One of the features of bourgeois liberal government and of

socialist government is the specialization of organs of state.- The role of a legislator is to establish ex ante rules.

o The pronouncements of legislators are general (althoughnot as general as fundamental rights or generalprinciples of law).

o The role of the judiciary on the other hand is to createdecisions ex post , relying upon rules promulgated by


14/27



the legislator ex ante (thus, decrees of courts are a lotmore specific then those made by the legislator).

7. Collective Judgments: - Another achievement of the bourgeois revolutions was the

replacement of collective judgment with a strict principle of individual accountability instead of being based on socialclasses, etc.

o Thus, crimes done by family members or ascendantscould not be penalized against the descendants. Also,crimes committed by a person belonging to a certainclass could not be penalized against all of the membersof that class.

CONCLUSION :

- The fundamental element of law does not consist of ahierarchically ordered set of norms. Instead, they arepotentially conflicting conditional statements with contingentenforcement imperatives.

o This however is only scholarly law or law in the books. o To be considered practical law they must be enforced.

- Natural law is nothing more or less than the law of thestrongest while positive law are the arbitrary statements of alegislator.

- While differing societies have different standards of justice,those differences are functions of their mode of production.Within a given mode of production, moral standards of societyare generally accepted and are intersubjective. They reflect themoral judgment and capacity of judgment of the societydepending upon the societys state of economic development.

SECOND DAY

Bramble Bush

Precedent

An official doing over again under similar circumstancessubstantially what has been done by him or hispredecessors before

Foundation of precedent Official analogue of what in society:

folkways/institutions and of what is in the individual:habit


15/27



Precedent is the dignified name for the practice of theofficer/office

The author thinks that unless there were such practice itwould be hard to know there was an office/officer

If written records exist and are carefully andcontinuously consulted, the possibility of changecreeping into the practices unannounced is greatlylessened.

Law application of precedent: The courts might keep records and keep them and pay little

attention to them But the lawyer searches the records for convenient cases to

support his point, presses upon the court what is hasalready done before, capitalizes the human drive towardrepetition by finding, making explicit, by urging the priorcases

To continue past practices is to provide a new official in hisinexperience of his predecessors.

o If he is idle - have their action brought to hisattention and profit by their industry

o If he is ignorant - can learn from them and profit bythe knowledge of those who have gone before him

o If he is foolish - profit by their wisdomo If he is biased/corrupt - public check on his biases

and corruption, limits the frame in which he canindulge them unchallenged

The knowledge that he will continue what they have donegives a basis from which men may predict the action of thecourts, a basis to which they can adjust their expectationsand their affairs in advance.

To know the law is helpful even when the law is bad. In our system, there has grownup:

1. Habit of following precedent2. Legal norm that precedent is to be followed

Main form of precedento The canon that each case must be decided as one

instanced under the general rule , other canons areonly to support this canon,

ORTHODOX DOCTRINE OF PREDECENT (strict view) Applied to unwelcome precedents Honorable technique for whittling precedents away. It is a

surgeons knife Every case lays down a rule, the rule of the case


16/27



o Ratio Decidendi = prima facie the rule of the case sinceit is the ground upon which the court chose to rest itsdecision

o BUT a later court can reexamine the case and invoke thecanon that no judge has the power to decide what is notbefore him, through examination of facts or of theprocedural issue, narrow the picture of what was actuallybefore the court and hold that the ruling made requiresto be understood as thus restricted

o Extreme form result: confining the case to its particularfacts

o Effect: case overruled

Loose view of precedent The court has decided and decided authoritatively, any point

or all points on which it chose to rest its case to pass Rule of court laid down = the court has held

Extreme form resultso In thinking and arguing exclusively from the language

that is found in past opinions and in citing and workingwith that language wholly without reference to the factsof the case called language forth

Capitalizing welcome precedents

Strict view Hard to use for lawyers, but its okay for the judge because he

has the knife in his hand, he can free himself

NOTE: Precedents do not produce certainty. There must still bepersuasion and judgment.

State v. Rachel Pendergrass2DW & V., NC. 365 [1837]

Facts:

The defendant kept a school for small children. On one occasion, alittle girl of six or seven years of age was whipped (with a switch)by defendant after a milder treatment had failed. Some of themarks from the whip went away after a few days but two markswere proved on her arm and neck, which also disappeared after afew days. The lower court ruled in favor of the State and founddefendant guilty of abuse.

Issue :


17/27



Whether or not defendant is guilty of child abuse or if it was partof the legal chastisement of pupils.

Ratio/Held:

The Court in this case found defendant not guilty and reversed theprior judgment. The law grants to schoolmasters and teachers thediscretion to correct their pupils, analogous to that of theirparents. It is the duty of parents to command obedience to controlstubbornness and reform bad habits but to do this, he must havethe power to administer moderate correction when just andnecessary. The welfare of the child is the main purpose for whichpain is permitted to be inflicted. However, when the punishmentcan seriously endanger life, limb or health or disfigure the child orcause permanent injury, then the purpose of correction is notachieved and this shouldnt be allowed. But if it causes only

temporary pain and no permanent ill, then it is permissible. In thiscase no permanent injury was done to the child and the onlyappearances that could warrant the belief of threatened permanentinjury were the bruises (on the arm and neck) but they were tooequivocal to justify.

State v. Black60 N.C. 262 [1864]

Facts:

The defendant Jesse Black was charged with assault against hiswife Tamsey Black. According to the evidence, they lived separatelyfrom each other and one day as Jesse was passing by the housewhere his wife resided, Tamsey made an ill remark about a Sal Dalyand Jesse Black (have you patched Sal Dalys bonnet?). Theyexchanged angry words and Jesse accused her of havingconnections with a negro. Then the Jesse grabbed her hair andpulled her down the floor. He didnt hit her but during trial shesaid that she was hurt and her throat was injured and sorealthough he did not choke her (at the trial she was completelyrecovered). After she got up from the floor she continued to abusehim. The defense argued that Jesse could not be convicted of battery on his wife unless a permanent injury is inflicted or usesexcessive violence or cruelty.


18/27



Issue:

Whether or not Jesse Black can be convicted for abuse against hiswife.

Held/Ratio:

The Court in this case held that he was not liable for abuse againsthis wife. The Court stated that a husband, being responsible forthe household, can do such acts and enforce a certain degree of force as is necessary to control the unruly temper of his wife. Untila degree of cruelty, or excess passion is inflicted, the Court willnot invade the domestic forum. Such an intervention would put theparties as a public exhibition, widen the breach, makereconciliation almost impossible, and encourage insubordination.The fact that they live separately is a non-issue since they are still

married. Only when there is a divorce where the state recognizestheir separation can this be considered abuse. But a privateagreement to live separately doesnt affect the fact that thehusband is still responsible for her acts.

Antonin Scalia: The Rule of Law as a Law of Rules

Antonin Scalia stands by what Aristotle said that:

Rightly constituted laws should be the final sovereign;and personal rule, whether it be exercised by a singleperson or a body of persons, should be sovereign onlyin those matters on which law is unable, owing to thedifficulty of framing general rules for all contingencies,to make an exact pronouncement. It is this dichotomybetween "general rule of law" and "personal discretionto do justice" that I wish to explore.

He started by discussing the advantages of common-law system,that is, the discretion-conferring approach. It follows that perfect

justice can only be achieved if courts are unconstrained by suchimperfect generalizations.

Scalia gave some substantial competing values which oftencontradicts the search for perfection. First of which is equaltreatment. Parents know that children will accept quite readily all


19/27



sorts of arbitrary substantive dispositions -- no television in theafternoon, or no television in the evening, or even no television atall. But try to let one brother or sister watch television when theothers do not and you will feel the fury of the fundamental senseof justice unleashed.

Second is predictability. Even in simpler times uncertainty hasbeen regarded as incompatible with the Rule of Law. Rudimentary

justice requires that those subject to the law must have the meansof knowing what it prescribes. It is said that one of EmperorNero's nasty practices was to post his edicts high on the columnsso that they would be harder to read and easier to transgress. Aslaws have become more numerous, and as people have becomeincreasingly ready to punish their adversaries in the courts, we canless and less afford protracted uncertainty regarding what the lawmay mean. Predictability, or as Llewellyn put it, "reckonability," isa needful characteristic of any law worthy of the name. There aretimes when even a bad rule is better than no rule at all.

Common-law approach is said to be as the course of judicialrestraint, making as little law as possible in order to decide thecase at hand. However, Scalia have come to doubt whether this istrue because in writing for the majority of the Court, he adopts ageneral rule, and say, "This is the basis of our decision," he notonly constrain lower courts, he constrain myself as well. In thereal world of appellate judging, it displays more judicial restraint

to adopt such a course than to announce that, "on balance," wethink the law was violated here -- leaving ourselves free to say inthe next case that, "on balance," it was not. It is a commonplacethat the one effective check upon arbitrary judges is criticism bythe bar and the academy. But it is [very difficult] to demonstratethe inconsistency of two opinions based upon a "totality of thecircumstances" test only by announcing rules do we hedgeourselves in.

Judges are sometimes called upon to be courageous, because theymust sometimes stand up to what is generally supreme in ademocracy: the popular will. Their most significant roles, in oursystem, are to protect the individual criminal defendant against theoccasional excesses of that popular will, and to preserve thechecks and balances within our constitutional system that areprecisely designed to inhibit swift and complete accomplishmentof that popular will. The chances that frail men and women willstand up to their unpleasant duty are greatly increased if they can


20/27



stand behind the solid shield of a firm, clear principle enunciatedin earlier cases. It is very difficult to say that a particular convictedfelon who is the object of widespread hatred must go freebecause, on balance, we think that excluding the defense attorneyfrom the line-up process in this case may have prevented a fair

trial. It is easier to say that our cases plainly hold that, absentexigent circumstances, such exclusion is a per se denial of dueprocess.

The Queen v. Dudley and Stephens14 Q.B.D 273 (1884)

Facts:

Four men (Dudley, Stephens, Brooks and Parker) were out in theocean in an English yacht while there was a storm. When the yachtwas damaged, they all escaped in an open boat. They had nosupply of food and water except for two tins of turnips and a smallturtle they caught. Stephen and Dudley decided, without theconsent of Brooks, that they would kill and eat Parker since he isthe youngest and weakest of them all. They fed upon Parkersbody for four days and on the fourth day they were rescued. Uponreturning to land, Dudley and Stephens were arrested and broughtto trial.

Procedure:

The jury issued a special verdict. They found that there was nogreater necessity to kill Parker, than there was to kill any of theothers. However, the jury was unable to decide whether the killingof Parker was indeed a felony.

Issue:

Are Dudley and Stephens guilty of murder for killing RichardParker?

Held:

Yes. Where a private person, acting on his own judgment, takesthe life of another, he is guilty of murder, unless his act can be

justified by self-defense. The defendants were not protectingthemselves against any act of Parker.


21/27


22/27



1) Trial should follow the rule of law. A trial is a proceedingpurporting to conform to the rule of law, summary executionhas no such pretense.

No valid legal rules were in effect that outlawed crimesagainst humanity. So the principle of no crime without alaw was violated.

The Nuremberg Charter did outlaw crimes against humanity,but was adopted after the crimes took place, thus violatingprinciples against the retroactive application of law.

International treaties didnt make individuals criminallyliable, and there were no specific punishments.

Prior to the Charter, international treaties didnt criminalizeconspiracy, especially to the extent of the Charter makingevery conspirator responsible for every act carried out.

The tribunal was not an impartial one, since the judges camefrom countries Germany had just fought.

New rules were not equally enforced against other acts

(Hiroshima, Nagasaki) that could also be seen as war crimes. How do you define war of aggression? There would be amorass of historical and moral questions.

So, considering all of this, it was a political trial where thevictors used their superior power.

2) A sovereign power cannot be legally limited by any superiorpower. There is no global sovereign who enforces internationaltreaties, so international law cant really be authoritative andbinding.

Under German law as it existed during the Nazi regime, thedefendants had not acted illegally.

Acts of state are acts of the sovereign. These acts cannot be

illegal, because the sovereign decides what is legal andillegal.

Complying with commands that come from the sovereigncannot be a crime.

Justification of the trial: Several international treaties, including some to which

Germany was a party, renounced aggressive war. So thisdeclared what the international community had previouslyagreed were crime.

The charge of crimes against humanity were part and parcelof the Nazi plan to wage aggressive war and commit warcrimes by exterminating Jews, Gypsies, etc.

Doesnt matter where the judges are from, as long as theyare independent and willing to listen to both sides, and torender a judgment based on law and evidence. (this isevidenced by fact that three defendants were acquitted, andsome not guilty on all counts) Only the most culpable gotdeath sentences.


23/27



Important to make public for historical purposes all of theatrocities committed by the Nazis. No one could doubt afterall of the evidence that it was a horrifying campaign of aggression and genocide.

Sovereign states are obligated under international law. Therule of law must be extended to the internationalcommunity.

Nature Law Theory

According to Hugo de Groot (Grotius) in 17 th century (1583-1645),natural law would be the same even if God did not exist. Certainthings are intrinsically wrong, whether or not God decrees them.

On the other hand, Sir William Blackstone (1723-80) believes thatEnglish law derives its authority from natural law. Blackstone wrotehis books on common law shortly before the United StatesConstitution was written. Many terms and phrases used by theframers were derived from Blackstone's works. The revolutionagainst the British can be said to be based on natural law look tothe Declaration of Independence. they are endowed by theirCreator with certain unalienable rights.

St. Thomas Aquinas

Aquinas gave four categories:1. Eternal law (divine reason known only to God) - principles of action God implanted in things to enable each to perform its

function in the universe.2. Natural law (participation of eternal law in rational creatures) knowable by our natural powers of reason, guiding us toward whatis good for humans.3. Divine law (revealed in the scriptures) the ultimate good,human salvation, not achievable in this life.4. Hman law (supported by reason, enacted for common good) Aquinass term for positive law, rules framed by the legalcommunity for the common good of its members.

Aquinas said a law that does not conform to natural or divine lawis not a law at all. Is this argument a convincing one? Aquinas is

confident because he knows 1) God exists; 2) God has ordainedthat those in charge of political communities frame laws servingthe common good; and 3) the natural reasoning powers of humanslead all reasonable persons to agree on basic principles.

Opponents would argue 1) there is no God; 2) even if there is,Gods existence is not something we can know, but only believe in;3) even if we can know God exists, we dont really know what he


24/27



intends from political leaders; and 4) reasonable people candisagree over fundamental ideas of good and bad.

Lon L. FullerFuller is noted legal philosopher, who wrote The Morality of Law in1964, discussing the connection between law and morality. Hisdebate with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of significant importance for framing the modern conflict betweenlegal positivism and natural law. Like traditional natural lawtheorists, Fuller wrote of there being a threshold that must be met,or a test that must be passed, before something could be calledlaw. But the test that Fuller applies is one of function andprocedure and not just moral content. This is Fullers innermorality of law. It consists of a system of rules that must be met,or substantially met, if a system is to be called law. (A systemthat meets some could be considered partly legal and display agreater respect for principles of legality than a system that doesntmeet the requirements at all.)

(P1) the rules must be expressed in general terms; (P2) the rulesmust be publicly promulgated; (P3) the rules must be prospectivein effect, and not retroactive; (P4) the rules must be expressed inunderstandable terms; (P5) the rules must be consistent with oneanother, and not contradictory; (P6) the rules must not requireconduct beyond the powers of the affected parties, or have thepossibility of compliance;(P7) the rules must not be changed sofrequently that the subject cannot rely on them, or constancy; and(P8) the rules must be administered in a manner consistent withtheir wording.

Legal Positivism

Legal positivism is the view that the validity of any law can betraced to an objectively verifiable source. This rejects natural lawview that law exists in some way separate from human enactment.A common factor among legal positivists is that the law as laiddown should be kept separate for the purpose of study andanalysis from what the law ought to be. They share the view thatthe most effective way to analyze and understand the law is tosuspend moral judgment and establish its source.

Jeremy Bentham became known as one of the most influential of the utilitarians, through his own work and that of his students. Heargued the right act or policy he called "the greatest happinessprinciple," often referred to as the principle of utility. The greatesthappiness of the greatest number is the foundation of morals andlegislation." Utilitarianism is the idea that the moral worth of anaction is solely determined by its contribution to overall utility, thatis, its contribution to happiness or pleasure as summed among allpersons. His critique of Blackstone was that the unwritten


25/27



common law was intrinsically vague and uncertain, and cannotprovide a reliable, public standard that can reasonably be expectedto guide behavior. Legal codes would diminish the power of

judges to interpret the law, and remove much of the need forlawyers.

John Austin

Austin was a noted British jurist and published extensivelyconcerning the philosophy of law and jurisprudence. He was adisciple of Bentham.

Laws are general commands laid down by superiors to guide theactions of those under them. These constitute positive law andimpose legal obligations. This compares to laws laid down by menthat are not as political superiors or in pursuit of legal rights. (Lawsby analogy like laws of fashion, and by metaphor, like laws of gravity.) Those who act contrary to the rules may be punished atthe hands of the political rulers. In his view, this political leader isthe sovereign, defined solely in terms of power, not in terms of moral qualification.

Question of what the law is and what it should be are alwaysseparate. There is no connection between legal and moralobligation. Concepts of law and legal obligation are purely powerconcepts. Austin rejects the idea of an international law sincethere is no global sovereign to issue and enforce commands. Sointernational laws are a kind of positive morality for the

international community. This will be used at Nuremberg.That brings us back to the big question is a rule valid if it iscontrary to natural law or morality? Austin thinks yes, but thatdoesnt mean there arent situations where you might choose todisobey an immoral law. But natural law types might say thatmoral progress will be achieved by the rejection of unjust laws andthe refusal to obey them. Would this cause social disorder andconfusion? Austin would think so.

Bentham pursued the idea of a single, complete law. Austin builthis system on a classification of rights, but not a complete law. A

lot of his focus applies to criminal more than civil law. Austin wasalso not as concerned as Bentham in checking the power of judgesand lawyers.

Law as command requires that there must always be a sanctionthat follows failure to obey a command. smallest chance of incurring the smallest evil.


26/27



H.L.A. Hart

Hart is known for applying techniques of analytical and linguisticphilosophy to the study of law. This is based on a logical view of concepts, as well as a focus on what words actually mean in alanguage. So he tried to illuminate the meaning of legal concepts,the way we deploy them, and the way we think about law and thelegal system. He argues that we need to look to context wordsand rules can have a number of clear meanings. His 1961 workThe Concept of Law is a classic.

Hart starts with human frailties, or the minimum content of natural law:

1. Human vulnerability we are all susceptible to physicalattacks.

2. Approximate equality even the strongest must sleep attimes.

3. Limited altruism we are, in general, selfish.4. Limited resources We need food, clothing, shelter and they

are limited.5. Limited understanding and strength of will we cannot be

relied upon to cooperate with our fellow men.

These require the enactment of rules to protect persons andproperty, and to ensure that promises are kept. Legal rules aredivided into primary and secondary rules.

Primary rules involve the use of violence, theft, deception, thingsthat humans must repress to coexist in society. These impose

obligations.Secondary rules are of three types:

1. Rules of change rules that help society adapt to changingconditions by making it possible to eliminate old rules andenact new ones. These rules confer power on individuals orgroups to enact legislation in accordance with certainprocedures.

2. Rules of adjudication confer authority on individuals to pass judgment mainly in cases of breaches of primary rules. Thisis mainly punishing the wrongdoer or making them paydamages.

3. Rules of recognition helps people recognize the rules underwhich they will be held accountable. This is duty-imposing: itrequires those who exercise public power (judges) to followcertain rules that are the accepted standards. Judges donthave to like the rules, just follow them.

Then, rules are either internal or external. External involvesoutward behavior, people acting a certain way. While internalinvolves the attitudes people take, like seeing deviation from the


27/27


rules as something to be criticized. Hart thinks the internal part iscritical there has to be social pressure to conform to rules, therules must help maintain some aspect of society regarded asimportant and valuable, and sometimes requires people to actcontrary to their own self interest.Hart makes lots of reference to the money or your life gunman.You are obliged to obey, because of the choice, but you dont havean obligation, because no rule imposes an obligation to obey. If governments can create obligations by enacting laws, thatsdifferent from the gunman, because he cant create an obligation,moral, legal or otherwise.

Intro to Law Reviewer Day 1 & 2

Documents

Transcript of Intro to Law Reviewer Day 1 & 2