Appunti Hart, Dworkin e Raz secondo modulo philosophy of law

KELSEN REALISM HART

The validity is just Validity in a Formal validity+socialformal: a norm is valid sociological view validity of the rule ofif the act that created recognition.social validity.the norm is qualified by it’s a mixed model.A norm is valid only ifanother norm. The so a norm is valid onlyjudges apply it.basic norm is if the procedures in thecompletely formal end traces back to thebecause it is a rule of recognitionconceptual (formal), but this rule ofpresupposition of legal recognition exists onlyscience. if officials practice it.Hart is a legal positivistand not a legal realistbecause the norms canbe valid only if theyfollowed the criteriaestablished by the ruleof recognition (from aformal point of view).Hart says that the existence of a rule is different from its validity, becausevalidity depends on the criteria of the rule of recognition.To summarize Hart, after criticising Austin, shows you that you need thenotion of rule to understand the law; you need to

of view, they have to practice the rule and react to it. They also need to have a distinct vocabulary to understand and apply the rules. Hart introduces secondary rules about powers and validity to further explain the legal system. The rule of recognition is a rule applied by officials to determine the validity of the system. When officials share this rule, other rules can come into existence, and only these other rules are formally valid. Hart emphasizes that the legal system is a formal game centered around validity. However, the ultimate truth of the system lies in the practice of officials. If officials do not share a rule on how to identify the law, a legal system cannot exist. Without a shared understanding of what constitutes a valid norm, it becomes impossible to distinguish between valid and invalid norms. The first possibility is when all members in the community obey the legal norms. However, this is not a good option because officials must adopt the system from an internal point of view and actively practice and react to the rules.

of view. They do not just obey, they really accept the system.

Second extreme possibility all members in the community adopt internally the rule of recognition THIS IS TOO COMPLEX how can it be that all the members have an understanding of the rule of recognition; must people have no idea about the complexity of sources of law.

We can assume this just in simple systems. A legal system exists only if officials adopt the rule of recognition from the internal point of view, so they must follow it as a standard; the other citizens just have to obey the rule of the system. Only when citizens obey the rules of the system and officials accept them, we have legality.

So exist systems that are more or less perfect:

Simple society in which citizens have an internal point of view towards the primary rules of obligation the system is not perfect at all, because there aren't secondary rules.

Complex societies with primary and secondary rules:

- Citizens simply obey and officials

Chapter 7: The Problem of Legal Interpretation

There are cases in which terms are clear and borderline cases, in which terms can be not so clear.

Every term can be open textured, meaning it does not dictate clearly what we mean with a term; some cases are clear and some are borderline.

We don't have to be too strict in defining the terms in a rule.

Pathologies of a Legal System

We can also have pathologies of a legal system, where systems that were in place standing and then in a certain occasion become defective:

• Officials fade away, but the bulk of the population still obeys.
• Officials change the rule of recognition they identify the law in a different way.
• Officials do not agree with the rule of recognition, so it's not clear what is the rule of recognition. Or maybe it is because of political reasons.

Citizens have an internal point of view towards the primary rules, and officials have an internal point of view towards the rule of recognition. This is sufficient.

because if you are too strict you arrive at unreasonable consequences.
Legislators define rules in general terms, so there is the problem of interpretation: what is the actual meaning? How can people know what it is meant?
The world is unpredictable.
When you define a rule, you have some clear examples of that rule and our aim legislating is so far determinate because we have made certain choices. A rule, apart from strictly defined terms, must have an aim/justification of what we mean to achieve with that rule.
The meaning of the words and the aim of the rules can't be decided in advance mechanically, it's necessary to analyze actual cases.
Hart makes a distinction between legislation and precedent. In civil law systems, we regulate classes of persons/acts by way of legislation (general rules); in common law systems, we regulate not only by way of legislation but also by way of precedents (a judge will also ask if the case is similar to a previous case).
Legislation generalization of.

terms

Here we have central cases (in which every term is clear and the judgment is obvious) and problematic cases (borderline; so we need to know is this case similar to the central one). the open texture of language.

Language in all domains is open textured

The open texture of language is needed in legal domain because if you don't accept the open texture of language and you are too mechanical, the rule will can have unreasonable consequences; also an open texture language because it's not possible to predict new circumstances.

Precedent no generalizations but paradigmatic cases. How is the new case similar to the precedent?

So we can have a norm with general terms or a precedent that you must interpret in its relevant terms

The norm has an aim/purpose.

In case of new circumstances we need to adapt both the interpretation of the terms and the aim of the rule. We will have to change and choose.

The judge in borderline cases chooses whether to include the case under

The borderline example of the term and applying the rule or not. Another problem is that of deciding whether interpreting the ordinary meaning falls under a reasonable aim, so reinterpreting the aim. Also in borderline cases we must decide too what we want the purpose of the rule to be.

Formalism certainty of law; applying rule in a mechanical way. Hart says that if you are too formalist as a judge you will not be able to adapt rules to circumstances.

Rule scepticism judges chooses how to decide. Hart wants to give a model in which certainty and choice are balanced in front of an easy case, where the case falls under the paradigmatic case and where the aim still holds because there aren't unreasonable consequences of that application, we have certainty; on the other hand, in order to adapt a rule to specific circumstances and when we have a problematic case, or when we apply the rule in the paradigmatic way but we are lead to unreasonable consequences given the aim of the rule.

We have an hard case and so judges must choose whether to apply the rule strictly or not, whether we should choose the aim of the rule or not.

TAKE HOME BY HART

Legal norms are not commands

Law does not simply limit behaviour but it makes new things possible

Passive obedience is not sufficient to ground a legal system

Officials have a special status in maintaining a legal system

Legal obligation is not just a matter of sanction

Legal system can have different degrees of perfection and this depend on the internal point of view

Language is vague and it is a good thing for law.

Having a rule is a way to behave, also linguistically.

If people do not react, there is no rule.

Several points of view are possible, but the internal one is necessary.

DWORKIN'S CRITIQUE

Dworkin wrote his two most important books in 19.. and 1976

Hart in his postscript wants to reply to all the objections made on his work.

Dworkin identifies a general concept of law the basic concept of law is that force and sanctions

are applied under a scheme of rights and duties;

The main problem is that sanctions and rules must be justified, so there must be a story about the legitimacy. So how to justify the connection between force, rules and rights?

Depending from the answer to this question, we have different conceptions of law:

• Conventionalism states that legal coercion is justified because in that way you can have cases treated equally and you can have a certainty of legal outcomes. (legal positivism)

The main justification of law is that it is able to enforce in a coherent and predictable way. So the ultimate feature is a convention about authority that gives equal outcomes. But Dworkin says that convention can't justify anything because sometimes coherence can't justify unjust outcomes.

• Pragmatism law is justified because it realizes social utility, so law is useful and needed by the social context.

Dworkin does not think that this is a justification, because if you say that law is useful for the

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