Notes+Mon+Sept+21

PHL271H – Monday, September 21, 2009

HLA Hart (cont’d)

Penumbral Cases (and Interpretation)

What is a vehicle?

Whatever a judge decides (as long as it’s not overturned at an appeal) is the law. But, it could be a good decision or a bad decision. This means that it in our system (common law system) judges make law.

Some legal positivist dispute this, the law has everything it needs…like the ‘legal machine’. Hart disagrees with this, he thinks judges often make decisions about what the law ought to be.

This ‘ought’ not a moral ought. The judge could be thinking about what policy the law aims at. i.e. people were allowed to be slave owners. Judges would use the reading of the law that favoured slave ownership.

Law as it is can be affected by law as it ought to be but, not in the moral sense of how it ought to be.

Many legal positivist (not Hart) think that you have t stick to the narrow meaning of the law. Hart says what you have here is a conflict b/w two kinds of policy. In both cases judges are said to make the law, NOT find it.

Canadian Food Tent in park in NYC (tent now is improved but, still only temporary). A judge would need to decide if this violated the law that ARK has the rights to run a restaurant in that park.

Law that requires intervention, some law is just routine and requires little or not interpretations.

i.e. Impaired driving (routine example) 2 things have to be established -you are permitted to contact legal counsel and you have to be able to get that advice before you blow into the machine (at the station, which is more exact) -then you have to blow into the machine and if it exceeds the legal limit -then the machine is verified to be working correctly. THEN if these are all met, this is sufficient for a conviction.

Model of Rules

People can’t live together unless we have rules to govern our behaviour. We need rules to guide us by ruling out certain kinds of behaviour or co-oordinatin other kinds of behaviour.

Table manners, this is a case where rules govern behaviour. It does things like govern social status, a way to be inoffensive and a way to get food in a social context.

Imagine a society that runs like how table manners works. People do them and there is no enforcement, just public humiliation. The rules are know but not necessarily reported.

Is there such a society? Yes -- !KungSan !KungSan is a foraging society. Their mode of gaining a living was gathering mostly and some game hunting. Richard Lee (researcher) spent a lot of time with these groups. So, he wanted to show his gratitude. Lee decided to kill a large animal and distribute the meat. So, he bought and slaughtered and ox. He was surprised at the reaction, nobody expressed gratitude. Why? Lee actually figured out why. The way you make sure people don’t get too high of an opinion of themselves when they have success is to point out the deficiency. This way people are not too conceited and not too enclined to throw their weight around. So, this will help ensure that no one takes over.

These rules are not law, Hart calls them Primary Rules.

Problems with systems that have only primary rules, according to Hart.

1. sometimes it’s hard to figure out what the rules are. There is UNCERTAINTY 2. a set of rules might work well in one situations but not well if the circumstances change. (like the !Kuns San…who are expected to farm) It is STATIC 3. How to deal with people who don’t follow the rules. There is INEFFICIENCY

So, Hart thinks that we need Secondary Rules. Secondary Rules solve each of the problems with the primary rules.

UNCERTAINTY can be solved by rules of RECOGNITION. This will tell you what the rule is in this case. As in the case of Athens and Rome the laws were written in stone and posted in the market place. Or in the example of the 6 nations, they have something called the great law. It’s an oral document that is recited from time to time and is passed onto new reciters from the older reciters to ensure that it isn’t changed to their own advantage.

STATIC can be dealt with by making rules of CHANGE.

EFFICIENY problem can be dealt with by making rules of ADJUDICATION. Hart claims when the inappropriate behaviour takes place. Then they will specify a procedure for determining (a trial) and set out a remedy.

Hart says we have to find people in the community who will be the decision makers.

When you have these things together, Primary rules with Secondary rules on how to deal with primary rules. You have a legal system. Hart says you don’t need a sovereign, but you do need compliance.

-compliance of the ordinary citizen - officials have to consider themselves as acting on behalf of the rules.

One more problem, how do we recognize which of the rules of recognition are? How do we decide whether a particular piece of legislation is valid or not? It’s hard to handle these problems without going around in circles.