Finish discussion of Riggs v. Palmer. Introduction to H.L. A. Hart

1.

PLAN FOR TODAY’S LESSON
• Hand back notebooks
• Finish discussion of Riggs v. Palmer
• Introduction to H.L. A. Hart
• Pair Exercises/Class Discussions
• (What we don’t get to today we will continue with next time.)
• 1: Social rules
• 2: Legal rules and their variety
• Short writing

2.

Finish discussion of Riggs v. Palmer
From the group, and class, discussions,
and your in-class writing,
I know how all of you would have decided this case.

3.

Finish discussion of Riggs v. Palmer
We’re not going to debate the question any more now.
But I want you
to distinguish
and to understand
the specific arguments of the judges.
Because:
In Unit 2 of this module, on legal reasoning,
we will hear more arguments like the ones on both sides of this case.

4.

Finish discussion of Riggs v. Palmer
But first: how many of the judges’ arguments
did you come up with on your own?

5.

6.

Finish discussion of Riggs v. Palmer
The photo’s hard to read, so…
In favor of Elmer, I wrote down:
1. “Will says, can’t change” (that is, the court does not have the
authority to change the will); and
2. “The law is the law” (in other words, the court does not have the
authority to change the law, which didn’t say that an unworthy
heir does not inherit)
Please note: you came up with these arguments of the dissent.

7.

Finish discussion of Riggs v. Palmer
In favor of the daughters, I wrote down:
1. “Murder” (that is, Elmer has no legal right to inherit property from
a testator he murdered; we won’t let him benefit from his crime);
2. “Didn’t want him” (in other words, Francis wouldn’t have wanted
his murderer to inherit his property)
Please note: you came up with these arguments of the majority.

8.

Finish discussion of Riggs v. Palmer
I also wrote down, based on what you said:
“No more murders” (in other words, if Elmer wins, maybe others will
commit murder, too: they’ll go to jail for a time, but they’ll get the
money.)

9.

Finish discussion of Riggs v. Palmer
Now let’s review
the specific arguments of the judges:
These are on the sheet for Exercise 2.2,
but I want to go over them with you.
You don’t have to read the slides now.
I will upload them slides so you will have them.
Just listen and tell me if you don’t understand.

10.

Finish discussion of Riggs v. Palmer
Majority argument number 1:
Dissent response:
THE PURPOSE OF THE STATUTE
The purpose of the statute on wills is to enable
people to give their property, after they die, to
the people they want to give it to.
Francis was murdered by Elmer. We can assume
Francis wouldn’t have wanted Elmer to get
Francis’s property.
We can assume Francis would have changed his will
if he had known Elmer intended to kill him.
Therefore, giving Elmer the property would defeat
the purpose of the statute.
But: Francis didn’t change his will before he died.
Based on the law as written, the court does not have
the authority, to—in effect—change Francis’s will.

11.

Finish discussion of Riggs v. Palmer
• In essence:
• Majority: decide the case according to the purpose of the statute,
what the statute is supposed to accomplish.
• Minority: Purpose doesn’t matter. What matters is what the law
says.
• Everybody understand the purpose argument and the response?

12.

Finish discussion of Riggs v. Palmer
Majority argument number 2:
Dissent response:
THE INTENTION OF THE LEGISLATURE
If they had thought about this case, the legislature
would not have wanted Elmer to get Francis’s
property.
But: it was the legislature that established “the rigid
rules of law” by which the court is bound.
The law does not say that the murderer of a testator
cannot inherit under the will.
The idea that the legislature intended that a person
who murdered a testator to get the testator’s
property is “inconceivable” (=not able to be
imagined).
Therefore, the court must follow the law as written.

13.

• In essence:
• Majority: think about what legislature would have said if they had
thought about this case.
• Minority: What they would have said doesn’t matter. What matters
is what the law says.
• Everybody understand the intention argument and the response?

14.

Finish discussion of Riggs v. Palmer
Majority argument number 3: PRINCIPLE
Dissent response:
A principle (from the common law tradition): “No
one shall be permitted…to take advantage of his own
wrong…or to acquire property by his own crime.”
The argument that Elmer should not get Francis’s
property is a moral one.
It is only a reason to make a law to cover that case.
Since that moral principle was not made into law, the
court must follow the law as written.
• Allowing Elmer to get Francis’s property would be
contrary to “public policy” (= in the common law
tradition, a general social understanding of what is
appropriate). (Mention consequences)
“…the demands of public policy are satisfied by the
proper execution of the laws [as they are written]
and the punishment of the crime.” court must follow
the law as written.

15.

Finish discussion of Riggs v. Palmer
• In essence:
• Majority: we have a common law principle: a person should not be
allowed to benefit from his own wrong.
• Minority: That’s a moral principle, not a legal principle. Since that moral
principle was not made into law, the court must follow the law as written.
• Everybody understand the argument based on principle and the response?

16.

Finish discussion of Riggs v. Palmer
• On the “principle” argument, after the last lesson, Said asked a very
good question:
“In what book are those principles written down?”
• More generally, if these principles “from common law tradition” are
not part of the statutory law, where do they come from?
We’ll come back to that question.

17.

Finish discussion of Riggs v. Palmer
Majority argument number 4: CIVIL LAW
Dissent response:
The civil law would prevent Elmer from getting the
property under the will.
But: our legislature [of the state of New York] did not
enact the civil law rule.
“Under the civil law…one cannot [benefit under a will of
someone] whom he has murdered.”
The court has no authority to adopt or establish that
rule.
The court must decide the case according to the law as
written.
Majority reply to the dissent’s response:
“Our…law-makers were familiar with the civil law, and
…evidently supposed” that in light of the common law
principle that no one should profit from his own wrong,
“a specific enactment [stating that principle] was not
needed.”

18.

• In essence:
• Majority: the civil law has the rule of the unworthy heir.
• Minority: but our legislature didn’t enact the civil law rule. A court
doesn’t have the authority to adopt it. A court has to follow our law,
as written.
• Everybody understand that argument and the response?

19.

Finish discussion of Riggs v. Palmer
Additional dissent argument:
NO ADDITIONAL PUNISHMENT
Elmer was punished for his crime.
The majority response to the additional dissent
argument:
To deny Elmer the benefit of the will does not impose
“any greater or other punishment for his crime” than the
law says.
The court takes from him no property, but simply
decides that he shall not acquire [=get] property by his
crime, and thus be rewarded for committing that crime.
The court is not authorized to impose the additional
punishment of preventing him from getting property
under the will.

20.

Finish discussion of Riggs v. Palmer
Now you’ve heard and thought about what the judges said.
They disagree about
whether Elmer should get his grandfather’s property.

21.

Finish discussion of Riggs v. Palmer
But they disagree not just about wills.
They disagree about deeper questions.

22.

Finish discussion of Riggs v. Palmer
We are not going to debate these questions now.
Now, I just want you
to understand the questions
and to keep them in your mind
as we go forward in the module.

23.

Finish discussion of Riggs v. Palmer
These deeper questions are the ones we asked before:
What is (or counts as) law?
What is proper legal reasoning?
What is the proper role of the judge?

24.

Finish discussion of Riggs v. Palmer
What is, or counts as, law?
In a case involving the application of a statute,
is the law no more than the text of the statute?
Or:
Does the law also include principles like
no person should benefit from his or her wrong?

25.

Finish discussion of Riggs v. Palmer.
What is, or counts as, law?
The dissent said:
We have to apply the statute as written.
Principles like, no person should benefit from his or
her wrong, are moral principles outside the law.

26.

Finish discussion of Riggs v. Palmer
What is, or counts as, law?
The majority said:
The principle,
no person should benefit from his or her wrong,
is a legal principle that is part of the law.

27.

Finish discussion of Riggs v. Palmer
What is proper legal reasoning?
Even if the principle,
no person should benefit from his or her wrong,
is a moral principle…

28.

Finish discussion of Riggs v. Palmer
What is proper legal reasoning?
…is it proper for a judge to base a decision
on that principle
(or on the intention of the legislature,
or the purpose of a statute)?

29.

Finish discussion of Riggs v. Palmer.
What is proper legal reasoning?
The dissent said:
The only good legal reason is:
what the law, as written, says.

30.

Finish discussion of Riggs v. Palmer.
What is proper legal reasoning?
The majority said:
Other good legal reasons include…

31.

Finish discussion of Riggs v. Palmer.
…The purpose of a statute
The intention of a legislature
A principle
“Public policy”
(a general social understanding
of what is appropriate)

32.

Finish discussion of Riggs v. Palmer.
What is the proper role of the judge?
Is a judge required to decide a case
based on the laws as written, and nothing else?
Or--

33.

Finish discussion of Riggs v. Palmer
What is the proper role of the judge?
Is a judge allowed (or even obligated)
to consider,
in addition to what the laws say,
what would be a just or fair result?

34.

Finish discussion of Riggs v. Palmer.
Are these three questions related?...

35.

Finish discussion of Riggs v. Palmer.
Can you see these questions
as three ways
of getting at one basic principle?...

36.

Finish discussion of Riggs v. Palmer
Have you all taken a module on constitutional law?...

37.

Finish discussion of Riggs v. Palmer.
Do you the know the principle of
the “separation of powers”?...

38.

Конституция Республики Узбекистан
Статья 11
Система государственной власти Республики Узбекистан
основывается на принципе разделения властей на
законодательную, исполнительную и судебную.

39.

From Article 11
of the Constitution of the Republic of Uzbekistan:
“The principle of separation of powers
into the legislative, executive and judicial
shall underlie
the system of state authority
of the Republic of Uzbekistan.”

40.

Finish discussion of Riggs v. Palmer.
The “separation of powers”—
What does it mean?...

41.

Finish discussion of Riggs v. Palmer
In general, it means:
The Constitution assigns the 3 branches of government
certain powers and functions.
Each branch should use only those powers
to perform only those functions.

42.

Finish discussion of Riggs v. Palmer
Why do we have the separation of powers?...

43.

Finish discussion of Riggs v. Palmer
One reason: to have “checks and balances”
(Do you know that expression?)

44.

Finish discussion of Riggs v. Palmer
“Checks and balances”
The power of each of the 3 branches of government
serves as a “CHECK” (=limit) on the power of the others…

45.

Finish discussion of Riggs v. Palmer
“Checks and balances”
…and achieves a “BALANCE”
(here, =appropriate distribution)
of government powers.

46.

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“Checks and balances”
The goal:
that no one branch of government
have too much power.

47.

Finish discussion of Riggs v. Palmer
What is the separation of powers question
between the legislature and the judiciary?

48.

Finish discussion of Riggs v. Palmer
The question is:
How far can a court go,
in exercising its judicial power,
before it goes too far and
and improperly exercises legislative power?

49.

Finish discussion of Riggs v. Palmer
But to know if a judge has gone too far,
you have to know how far a judge can go--
what the limit of a judge’s power is.

50.

Finish discussion of Riggs v. Palmer
It is said:
The legislature makes and changes the law
and
the courts interpret and apply the law.

51.

Finish discussion of Riggs v. Palmer
Why divide the powers that way?...

52.

Finish discussion of Riggs v. Palmer
It is said:
The legislature has the power to make and change
the law
because the legislators
are elected representatives of the people,
chosen to express the will of the people.

53.

Finish discussion of Riggs v. Palmer
It is said:
The courts have only the power
to interpret and apply the law,
because
judges are (generally) not elected.

54.

Finish discussion of Riggs v. Palmer
So:
Why divide the powers that way?...

55.

Finish discussion of Riggs v. Palmer
So:
Why divide the powers that way?...
What (political) principle is served by that division?

56.

Finish discussion of Riggs v. Palmer
So:
Why divide the powers that way?...
What (political) principle is served by that division?
Democracy.

57.

Finish discussion of Riggs v. Palmer
BUT: where do you draw the line
between
making law
and
interpreting the law?...

58.

Finish discussion of Riggs v. Palmer

59.

Finish discussion of Riggs v. Palmer
In Riggs v. Palmer,
the majority draws the line between
making the law and interpreting the law
in one place,
and the dissent draws the line in another.

60.

Finish discussion of Riggs v. Palmer
The dissenting judges believe:
It is the duty of a judge
to decide a case
based only on the laws as written,
even if the result seems unfair or unreasonable.
The judge has no power to do more.

61.

Exercise 2:2: Class discussion.
The majority believes:
It is the duty of a judge
to decide a case in a way
that avoids a very unfair, unjust, or unreasonable result.
To do this, the judge has the power
to go beyond the laws as written.

62.

Exercise 2:2: Class discussion.
To repeat:
These different beliefs
are
different
value judgments…

63.

Exercise 2:2: Class discussion.
…about
honoring the letter of the law,
or
the spirit of the law.

64.

Exercise 2:2: Class discussion.
These value judgments depend on--
a society’s history and culture,
including its legal tradition, and
a judge’s own values…

65.

Exercise 2:2: Class discussion.
and a judge’s
“temperament” (TEM-pr-ment)
(=the kind of person one is,
and
how one responds to things).

66.

Exercise 2:2: Class discussion.
These different value judgements
may be
irreconcilable (ir-re-con-C (EYE)-lable
(=so different,
that neither side may be able to convince the other).

67.

Exercise 2:2: Class discussion.
Which side you take
in this conflict of values
you will decide for yourselves.

68.

Exercise 2:2: Class discussion.
Any final thoughts, comments, or questions
about Riggs v. Palmer?

69.

H.L.A. Hart
Now we’ll go on to H.L.A. Hart, on:
1. Social rules
2. Legal rules
3. The variety (=different kinds) of legal rules

70.

Unit 1 of the module
With this lesson we begin Unit 1 of the module: “What is law?”
The first thinker we will discuss is H.L.A. Hart.
Hart is in the Anglo-American tradition.

71.

H.L.A. Hart
You might wonder why he analyzes law the way he does.
Try to understand the concepts he introduces.
His concepts are useful, and we will use them later in the module.

72.

Herbert Lionel Adolphus Hart
(known as H.L.A. Hart) (1907-1992)
• “English philosopher, teacher,
and author who was the
foremost legal philosopher
and one of the leading
political philosophers of the
20th century.”
• (From Britannica.com)
• Known mainly for his book,
The Concept of Law (1961)

73.

H.L.A. Hart on the form of law
and the structure of a legal system.
• Hart says:
• Law takes the form of rules.
• A legal system is a combination of different kinds of rules.
• What do these mean?

74.

Let’s start with: law takes the form of rules.
We asked:
What is law?
Now we will discuss Hart’s answer to that question.

75.

Law takes the form of rules.
Remember our discussion of the definition of law…

76.

Definition of ‘law’
Law is
a ”system of rules” …

77.

Law is a system of rules
The idea that law is a system of rules,
Is due, in part, to Hart.
What do I say that?...

78.

To answer the question, “What is law, in general?”…
…it is natural to start
by giving our examples of laws:
Do not commit murder
Pay your taxes.

79.

Examples of laws
What is the “grammatical form” of
“Do not murder” and
“Pay your taxes”?

80.

Examples of laws
What is the “grammatical form” of
“Do not murder” and
“Pay your taxes”?
A statement?
A question?
(What we call in English, an “interrogative” sentence.
For example: “Is the tea ready?”)

81.

Examples of laws
What is the “grammatical form” of
“Do not murder” and
“Pay your taxes”?
A statement?
A question?
A command.
(What we call in English, an “imperative” sentence.
For example: “Make some tea.”)

82.

It is natural to think of laws as commands…

83.

It is natural to think of laws as commands…
Why?...

84.

It is natural to think of laws as commands…
Why?...
Because—as we just saw—
some laws are commands.

85.

It is natural to think of laws as commands…
Also:
because we know what happens
to SOME people…

86.

…we know what happens to some people…
who don’t obey those law-commands.
You’ll remember this…

87.

What happens to some people who don’t obey the commands

88.

What happens to some people who don’t obey the commands
One thing we call this, is…

89.

What happens to some people who don’t obey the commands
Getting into trouble
with THE LAW

90.

Now, Hart comes along and says,
“Wait a minute..”

91.

…Hart comes along and says…
Yes,
some laws are commands…

92.

…some laws are commands…

93.

…some laws are commands…
But, Hart says:
law is MORE than that.

94.

…some laws are commands, but…
…not all laws are commands.

95.

…some laws are commands, but…
Not all laws are commands.
We will soon consider some laws that are not commands.

96.

Not all laws are commands.
It’s more correct to say…

97.

Not all laws are commands.
It’s more correct to say…
Laws are rules…

98.

Not all laws are commands.
Laws are rules…
…because there are some legal rules that are not commands.

99.

Laws are rules.
This is what it means to say (at this point in the module):
Law takes the form of rules.

100.

Laws are rules.
So: Hart will help us understand
the beginning of our definition of law, as:
“…a system of rules…”

101.

Law takes the form of rules
The first thing I said that Hart said was
Law takes the form of rules.
What was the second thing I said Hart said?

102.

The second thing I said Hart said?
A legal system is a combination of different kinds of rules.

103.

A legal system is a combination of different kinds of rules.
A command is one kind of rule.
But law includes other kinds of rules.
Hart describes and explains these.
(We will see how.)

104.

A legal system is a combination of different kinds of rules.
The different kinds of legal rules
are related to each other.
Hart explains how they are related.
(We will see how.)

105.

The structure of a legal system
The different kinds of rules,
and their relations,
make up the structure
of a legal system.

106.

Structure of a legal system
There is more to a legal system
than its structure.

107.

Structure of a legal system
Just as,
there is more to
our human bodies
than their structure:

108.

Structure of a legal system
Just as,
there is more to
our human bodies
than their structure:

109.

Structure of a legal system
But:
to know the structure
of our bodies
is to know a lot.

110.

That is my introduction to Hart.
Any thoughts, comments, or questions about my introduction to Hart?

111.

That is my introduction to Hart.
Any questions or comments about anything I said?
Let’s review Hart’s two main points, so far:

112.

• Law takes the form of rules.

113.

• Law takes the form of rules.
• A legal system is a combination of different kinds of rules.

114.

Assigned Exercises and Reading
What did you think
about doing the exercises, and reading,
before the lesson?
If you did the exercises before the lesson,
please raise your hand.

115.

Assigned Exercises and Reading
How did you think about the short reading?
Were you able to understand it?
If you did the reading in English before the lesson,
please raise your hand.
If you looked at the Russian translation, please raise your hand.

116.

Exercise 3:1: Social Rules
Since I asked you to prepare the exercise before the lesson,
take just 5 minutes, in pairs, to review
both Parts 1 and 2
In preparation for the class discussion.

117.

Exercise 3.1: Social rules (discussion: Part 1)
Following a rule versus acting without following a rule
Part 1:
Examples of people acting according to a social rule?...

118.

Exercise 3.1: Social rules (discussion: Part 1)
Following a rule versus acting without following a rule
Examples of people acting as others do,
according to a social rule?...
Taking off your shoes when entering a home.

119.

Exercise 3.1: Social rules (discussion: Part 1)
Following a rule versus acting without following a rule
Examples of people acting as others do,
not according to a social rule?...

120.

Exercise 3.1: Social rules (discussion: Part 1)
Following a rule versus acting without following a rule
Examples of people acting as others do,
not according to a social rule?...
Taking a taxi to work

121.

Exercise 3.1: Social rules (discussion: Part 1)
Following a rule versus acting without following a rule
Taking a taxi to work is something people do.
But: there is no rule that requires people take a taxi to
work.

122.

Exercise 3.2: The different kinds of legal rules
(Our discussion of following a rule versus not following a rule
led to a discussion of primary and secondary rules.)

123.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
What are primary rules?...
Examples?...

124.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
What are primary rules?...
Examples?...
Do not murder
Pay your taxes

125.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
What are secondary rules?...
Examples ?...

126.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
What are secondary rules?
Examples ?
Elmer’s case?

127.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
What are secondary rules?
Examples?
Elmer’s case
(How to make a will)

128.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
• Secondary rules:
• One kind of secondary rule: tells you how to do
something you are allowed to do and want to do.
• What are some other legal rules like this?

129.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
• Secondary rules:
• One kind of secondary rule: tells you how to do
something you are allowed to do and want to do.
• What are some other legal rules like this?
• Rules for how to make a contract

130.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
• Secondary rules:
• One kind of secondary rule: tells you how to do
something you are allowed to do, and want to do.
• What are some other legal rules like this?
• Rules for how to make a contract
• Rules for how to establish a corporation

131.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
Secondary rules:
You don’t have to make a will or a contract,
or form a corporation.
But if you want to, the legal rules tell you
how to do these things
in a way
that will be protected by the law
(=that a court will enforce).

132.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
These rules, unlike rules about murder and taxes, don’t
impose legal duties.
What, then, do these rules do?...

133.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
These rules, unlike rules about murder and taxes, don’t
impose legal duties on you.
What, then, do these rules do?
We say: they grant legal “powers.”

134.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
Our examples so far:
Rules granting private powers
(to make a will or contract, or
to establish a corporation)

135.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
There are also legal rules that grant public powers
(that is, grant powers to the government).
Examples?...

136.

Exercise 3.2: The different kinds of legal rules (discussion: Part 1)
Primary and secondary rules
There are also legal rules that grant public powers
(that is, to grant powers to the government).
Examples?
How to make a law (legislation)
(the Oliy Majlis has to follow these)

137.

Brief writing (last 10 minutes)
Our definition of “law” said: “…law is a system of rules…”
[1] What did you learn today about social rules?
[2] What questions do you have, or you can think of, about
what you learned?
• Even if “Everything was clear,” come up with 2 or 3 questions.
• The point of this exercise is to get you to think about what you learned
(Schopenhauer).