LAWS1012 2012-13 Wks 3-7 Lecture Guide

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UNIVERSITY OF SOUTHAMPTONSCHOOL OF LAW

LEGAL SYSTEM AND REASONING (LAWS 1012)2012-2013

LECTURE GUIDEWEEK 1 (le!"#e $) %&' WEEKS 3 -

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INTRODUCTION

Ge&e#%l O"!l&e

During weeks 3 7, we will look at the concepts of law and legality in liberal societies; inparticular, we will look at how these relate to and inform our understandings of the processesof legal reasoning in judicial decision making.

We start with a general introduction see !riday lecture in week "# to the idea of the $ule of%aw, asking &uestions such as 'What is law(), '*ow can we know what law is(), and 'What arerules and what do they ha+e to do with law() We will the, from week 3 onwards, begin toconsider this against a background of positi+ist theories about what law is, on the one hand,and atural %aw theories, on the other. *ere we will look at notions of rationality andformality in law and consider the formalist-rationalist model in terms of the criticisms andadaptations that ha+e been oered against it, beginning with /merican %egal $ealism.%ooking closely at the work of * % / *art and eil 0ac1ormick, we will focus on the problemof judicial discretion in decision making, before comparing and contrasting these approacheswith the so2called 'fact scepticism) of erome !rank, a leading 45 /ppeal 1ourt judge writingin the "68298s.

Re%'&

:he recommended tet for this part of the module is. and !armer, %. ?887#,Jurisprudence: Themes andconcepts /bingdon< $outledge#. @5A< 67B2"2B962"B"92.

/n alternati+e tet, which pro+ides an e&ually good reference book for this part of themodule, isssential $eadingplorers) case, will nowconsider some related and contrasting approaches to understanding what makesrules normati+e< the 'command theory); the 'pure theory); the practice theory) andthe 'natural law) theory.

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Wee/ :

Le!"#e+ '%aw as a 5ystem of $ules)'%aw and 0orality)

$eading4, the >1*$, etc(

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Does he concentrate too much on the formal aspects of law( 1an we so easilyseparate &uestion about law from those of morality, politics, religion, etc, as Nelsenseems to suppose( /lso, isn)t this all a bit one2sided( What becomes of the 'ordinarycitiKen), and his-her perspecti+e, when there is all this concentration on the 5tateand its powers of coercion( @f +alidity is predicated upon eistence, what about those

abusi+e political regimes that ha+e no mandate from the people to rule, and whomake ini&uitous laws, but which are nonetheless eGcient( cf. Madzimbamuto vLardner!ur"eO"6CBP#. @s the fact that the system2+alidating basic norm, orGrundnorm, is essentially presupposed, and therefore diGcult to identify, notsomewhat problematic in terms of founding any sense of the structural coherenceand consistency of a legal system(

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'rules of obligation)# and these sort of 'duty2imposing) rules are found in allsocieties, e+en primiti+e ones< e+en the most primiti+e society, if it is to continue asa society at all, must ha+e primary rules against 'the free use of +iolence, theft, anddeception) 2 if you could ne+er depend on not being killed by your neighbour, thenyou would ne+er associate with any one else and social li+ing would becomeimpossibleQ @n this way, the +alidity of these rules may be seen to depend upon a

critically reMecti+e attitude, an 'internal point of +iew) that makes possible the senseof obligation that the members of a community feel towards obeying its laws.

*owe+er, primary rules are not enough. @f the onlytype of rules that eist in a socialgrouping are primary rules then the members of that social group will be faced withat least three problems< i# there will always be a continual state of uncertainty eg.there will be no established way of settling disagreements that o+er what the rulessay, or whether any particular principle is a rule of law or some other type of rule;ii# the rules will be too static 2 although new types of situations will continue to arisethat are not already co+ered by the rules, there will be no eGcient way ofdeliberately altering the rules since the re&uirement of consensus will mean that theonly way the rules will be able to be changed is slowly, by a sort of natural e+olution;

iii# the system will be ineGcient how would they be able to settle disputes o+erwhether a gi+en primary rule really has been +iolated, and to what etent(

5o we need another type of rules rules that tell us how these primary rules comeabout and how they operate. 5econdary rules are rules aboutprimary rules and theyconfer power on persons or bodies to be able to do something related to those rules.

:here are three types of secondary rule and each type corresponds to one of theproblems mentioned abo+e#$5/%@5/A@%@:J.:o gi+e an ade&uately justiFed decision on a no+el point, a judge must gi+e a rulingon the point in issue, but, according to the doctrine of formal justice, the way youdecide a hard case mustbe the way you decide every such casein the future ie.you must 'treat like as like).

5o, uni+ersalisability is both backward2 and forward2looking

:wining, W. "6B#, '5ome 5cepticism about 5cepticisms),Journal o# Law and 7ociety,=ol. ", nos ? and 3.Aennett, W. and !eldmann, 0. "6B"#, Reconstructing Reality in the ,ourtroom,

$utgers.Aankowski, X., "6B"# ':he =alue of :ruth), Legal 7tudies ".

LANGUAGE AND NARRATIVE IN THE COURTROOM

When we say that law is a formally rational system, we mean that its decisions, itspoints of law, can and will be rationally deduced from the rules. $emember thesyllogism+ery sensible lawyer inter+iewswitnesses beforehand, so witnesses mould their stories according to their

perceptions of what they belie+e the lawyer wants to hear, to assist one side ratherthan the other. :he idea that somehow, out of all of this, the truth will emerge, isnonsenseQ

F;! T;e.#< 9+ T#"!; T;e.#

LAWS1012 2012-13 Wks 3-7 Lecture Guide

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