INTRODUCTION

TO

LAW
REVIEWER
(FIRST AND SECOND DAY)
 REGINA IUSTITIAE SORORITY

FIRST DAY

THE TRIAL (Der Process)

Take note that Franz Kafka is one of the greatest scholars in the
philosophical movement known as existentialism
existentialism and that his work
deals with themes such as absurdity and hopelessness. It might be
easier to regard his works with that in mind because some of his
works will seem weird and oddly contradictory if viewed as a
normal 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 an
unidentified
unidentified crime. The men who come to arrest him do not specify
under whose authority they are acting. It is a diatribe on the legal
process and philosophical ruminations on justice and how it is
handled 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 Fräulein Montag, a lodger from another room,

moving in with Fräulein Bürstner. 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

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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 Priest
and K." are found in The Trial by Kafka. The first is a parable, and
the second is a dialogue between two different ideas. Take note
that the first excerpt is found within the second. “The Problem of
our Laws” is a short story, also by Kafka.

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Before the Law:

The parable discussed in this excerpt concerns a doorkeeper and

one who wants to pass through it. The doorkeeper is only the first
of a series of doorkeepers, but warns the man who seeks to pass
that he is only the first and there are many beyond him, each more
terrible than the last. The man asks if he can ever be allowed in
and the doorkeeper says that its possible but not right now. So
instead of leaving, the man sits by the door and every so often
asks to be let in, only to be rejected by the doorkeeper. The man
ponders this question: If the law is meant to be accessible to
everyone, 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 the
doorkeeper, doing everything he can to gain access, including
sacrificing his belongings to bribe him and asking the fleas on the
fur collar of the doorkeeper to let him pass, to no avail. The
doorkeeper accepts the bribes only because he did not want the
man to think that he (the man) failed to do anything. The man
waits at the door until his senses start to fail him. While his eyes
start to fail, he begins to see the "radiance that streams from the
gateway of the Law." Just before he expires, asks the doorkeeper
why, if everyone strives to reach the Law, no one else has tried to
enter. The doorman, seeing that the end was near for the man,
said this: "No one else could ever be admitted here, since this gate
was 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 important

Italian businessman around, who doesn't show up. He then starts
to look around their meeting place, a cathedral. Just as he is about
to leave, a priest calls out to him by name, although K. doesn't
know him at all. It turns out he is a court employee. He tells K.
about the parable of "Before the Law" (discussed above). The
dialogue excerpt is about the two of them discussing the
interpretation of the parable.

The priest (up in the pulpit) talks about his case and how he thinks
it'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 is
guilty be found guilty. The priest says that is how the guilty speak,
but makes no presumptions of guilt against K. K says that everyone
involved in the proceedings has something against him, and
influence the others who aren't involved. The priest says that
verdicts do not appear suddenly but are arrived at gradually. K says
he needs help but the priest says he's looking for help in the wrong
places, and says that he shouldn't look for help in a woman. K

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

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

Afterwards, K believes that the doorkeeper cheated the man, but

the priest told him not to believe his opinion before checking it. K
says that its quite obvious that the man was cheated, and that the
doorkeeper gave him the information that would help the man
when the man would have no more use of it. The priest said that
the doorkeeper had a duty and that the man had not asked before
that. K continued by saying that if the door was intended for the
man then the doorkeeper should have let him in. The priest says
that the doorkeeper explains two things about access to the law:
first, that he can't allow him to enter NOW but maybe later on, and
second, that the door was meant for him alone. If one of the
statements contradicted the other, then the doorman cheated, but
according to the priest, they didn't. The priest goes on to discuss
the many features of the doorman, in that he is incorruptible,
precise, duty-conscious, simple-minded and a little arrogant, but
that he is also friendly by nature and even humors the many
questions and requests of the man which do not contradict his
duty. Not every doorkeeper would have withstood the many years
with the man. The priest concludes that there are many ways by
which 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; he
only points out that there are many interpretations. The text
cannot be altered, and people's differing opinions are only
expressions of despair over it. The priest says that there are
interpretations that say that the doorkeeper was cheated, because
he only knew the outside of the law but not the inside of it. His
ideas of what the law are are supposedly childish, and while he
treats the man as a subordinate, he is also subordinate to the other
doorkeepers inside, all of whom are more terrible to behold than
himself. The free man is superior to one who is subservient to
another. The man being made to wait was free to leave and go
anywhere except inside the gate guarded by the doorkeeper; he
only chose to stay and wait outside. The doorkeeper had no such
freedom. Guarding the gate meant for the man alone meant that
the doorkeeper could not leave but wait for the whole of the man's
life to see if he became worthy to pass through it. In this way, the
doorkeeper was subservient to the man, and could only be released
from his duty at the close of the man's life.

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

K becomes tired thinking about the different interpretations of the

story and thinks that the fairly simplistic story at the beginning lost
its shape. K believes its time for him to leave the cathedral but
claims to be lost in the dark. Before the priest leaves, K calls back
to him to wait. K asks if the priest wants anything from him, but
the priest says no. K says that he was so friendly to him earlier, but
now abandons him as if he were nothing to the priest.

"First, you need to understand who I am," said the priest. "You're
the prison chaplain," said K., and went closer to the priest, it was
not so important for him to go straight back to the bank as he had
made out, he could very well stay where he was. "So that means I
belong to the court," said the priest. "So why would I want anything
from you? The court doesn't want anything from you. It accepts you
when 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 ruled
by 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 that
they've become like the law itself. Such interpretation can only be
done with restriction, only by and for the nobles. He talks about
how nobles stand above the law and it is because of such a
position that the law has been entrusted to them. There is "wisdom
in it, but also hardship" for the ones who are not afforded the
opportunity 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 only
allegedly told to those who hold it -- the nobles. It becomes funny
because maybe the laws they are trying so hard to understand may
not exist at all. He states that there is a small movement that
believes that the Law is whatever the nobles do, and that popular
opinion cannot factor in its interpretation or creation because
listening to their good points cannot offset the heavy drawbacks
that will come in when listening to them.

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He puts stock in the belief that time will come when the world
realizes that the law is incomplete without societal input and the
law 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" to
be entrusted with the law. And therefore a paradox exists because
only in the rejection of the nobility can this kind of vision come
true, 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 the
nobility, 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 rather

a number of definitions that will be consistent with one another.
Thus, natural law, positive law, law as prescription and law as
description will be distinguished to arrive at a definition.
- Distinguishing between law and justice will allow focus on
command and right.
- Engle states that unlike Kenley, he regards law as a “conflicting set
of conditional statements and consequent imperatives rather than
as 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 basic
norm that is the basis for all the number of norms that emanate
from it. These types of norms are usually known as moral norms.
For example: Not to lie, not to cheat and keeping a promise are all
the same kind of moral norms that are derived from the basic norm
of truthfulness. What is important to know here is that many moral
norms are usually just derivations of a basic general norm (from
the general norm to particular norms derived from it).
- Normative reference to law is necessary for law to have more
significance than something done by force. The teeth behind law
isn’t only physical violence but more of a moral
obligation/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, legal
science is not exact. It is nomothetic   meaning it presents
principles which are laws in the strict sense.

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- Nomotheses   cannot be derogated from and must react

exactly as they do.
o Example: If water is heated it eventually boils and
evaporates, as a natural science they must act exactly as
they do.
- In human science however, legal science included, it is
different. It cannot be said that because of a certain event
the same outcome will be obtained every time. This is
because the object concerns human beings, and human
beings have volition (will). Humans have the capacity to act
and interact with the environment.
- Human science cannot have non-derrogable laws but can
only have general trends and tendencies. This doesn’t mean
that there is no human science because it is still possible to
make statements regarding human tendencies and trends
and be able to make general predictions.
- These predictions however, are not exact but only
approximates. 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 a
certain fact is known, then a prediction may be based upon
it.
- If a fact is unknown it is possible that it will be known in the
future although at present it is unknown. An unknown fact
may also just be unknowable. An unknown fact cannot be
the basis of science but it may give rise to speculation and
hypothesis.
- 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 act
happens Y result occurs and thus from future instances it
can be inferred that the happening will recur.
- Empirical verification can also be done in human sciences
although it is less exact as compared to natural science.
- A theory can be verified if there is a correspondence
between material reality and the predicted outcome. So in
terms of legal science, we need to determine what the
predicted 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 these
predictions are not always accurate and what happens is
even beyond the possible outcomes and those written in law
books.

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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 them
imply that the law and justice or the person and justice is
not a correct relation. This approach however is empirically
incapable of verification. Being incapable of science the
paper rejects this method.
- Second response is to look at law critically. First, Scholarly
law are those in books which include statements of judges
and a description of what is ruled on by judges in a certain
set of facts. Second is Practical law (law in the streets) or
what in fact happens. When law in the books and law in the
streets correlate or actually happen, then that could mean
either a very just regime or a tyrannical one. When they do
not correlate and are way out of balance then a revolution
occurs and a new ruling class takes control.

LAWS ARE CONDITIONALS AND IMPERATIVES

- Reading the law in books, all laws are stated as a conditional that
when actuated will trigger imperatives. For example, if you steal
something then you will be punished. If the conditional is fulfilled
then the imperative reward or punishment happens. The degree of
correspondence between these conditionals and their outcome is
not always accurate but it is a measure of the efficacy of the law
and the government enforcing it.
- A direct correspondence between the conditional and imperative is
impossible because of free will. Also, the laws of legal systems are
almost always imperfectly enforced and thus legal science is not
nomothetical .
- To consider legal science as nomothetical  would be that every law
will be enforced everywhere, at all times without exception and
that humans behave exactly alike, which is clearly not the case.
- But despite the impreciseness with which legal science acts, it is
generally enforced and so, generalized predictions can be made as
to the probability of an event following another.
- Legal science is dialectical.
o The law is dialectical in that it mediates between right and
right. Both or all sides of the controversy have some good. And
so the job of the law is to mediate between the rights of two
sides, to adjust or accommodate and to sacrifice as little as
possible 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 compared
to get a better sense of which governs human behavior.

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! Example: When a judge is presented with the plaintiff

and defendant, two sides are presented which are
completely opposite. The decision of the judge is the
dialectical synthesis of these competing positions.
o Dialectic in the Marxist sense, wherein law is an element of a
superstructure of a particular mode of production, which
 justifies and defends a particular mode of production at a
particular point in history.
- Scholarly law (law in the books) is understood as authoritative
statements of legislators and judges consisting of conditional and
imperatives. 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 purely
imperative statement or a conditional statement that triggers
no imperatives.
- Conditional statements can also consist of rules, exceptions to the
rule and exceptions to the exceptions. This process of exceptions
could 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 fundamental
rights.

META-RULES

1. General Principles: 
- General principles of law are a source of meta-rules which is
a 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 have
adopted constitutionally binding charters of rights and have
given their highest courts the power to review the
constitutionality of ordinary laws.
- Constitutional charters are reflections of fundamental rights
and freedoms found in natural law and natural justice.
- These common law charters of rights and freedoms operate
similarly as the civilian’s general principles of law.

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- Fundamental rights (especially in the United States) are

generally limited to individual freedoms (worded as negative
freedoms –“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 seen
as conceptually the same. It is seen as:
o Binding or non-binding
o Independent sources of law or reflections of natural
law/natural justice
o Collective or individual
o Negative (“freedoms from”) or positive (“rights to”)
- However these rules are constituted, general principles of law
and concepts of fundamental rights and freedoms are rules
that determine how to form other rules.
- Fundamental rights are essentially substantive and are a more
limited concept than general principles of law, which are both
substantive and procedural.
- But both fundamental rights and general principles of law are
generally binding rules and for that they are similar. Because
of similarity they may be invoked in theory but less in practice
because 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 the
negative— “freedom from” as compared to positive
“rights to”
o 1848 socialist revolutions inaugurated positive “rights to”.
The rising working classes asserted a right to minimum
standards like hours, wages, etc. – thus the “rights to”
expressed not only fundamental constitutional rights but
were also strengthened by secondary legislative
administrative law.
- What these freedoms and rights have in common is that they
reorder the principle of distributive justice. The bourgeois
revolution began the era of distribution based “supposedly”
on merit. While the socialist revolutions introduced a principle
of distribution according to need.
- The evolution from negative freedoms to positive rights to all
classes shows the historical dialectical character of the
elaboration of rights. General principles, fundamental rights,
fundamental freedoms and rules of procedure are all example
of meta-rules – rules about making rules.

LAW AND JUSTICE:

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 law
at all. This is true in that one is justified in breaking an unjust

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law since there is no crime in breaking a law that is criminal

in itself. However it is not true in the sense of law as
conditional predictive statements.
o The prescriptive power of law (normative character) arises
from the idea that law reflects morality.
o But the description of a conditional or command of law is
merely positive law. Thus, an unjust law may have no
moral prescriptive force but have a practical descriptive
validity.

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 science
is not strictly nomothetical  since the ruler and ruled have the
capacity to act.
- Because legal science is not nomothetic   we account for the
variance between what is prescribed (scholarly law) and what
actually happens (practical law) as the difference between
prescription and description.
- The dual character of law as prescription and description
can be seen from the empirical method and shows that the
validity of a law is not dependant on its moral character
(although most laws have some element of morality, its
enforcement is not dependent on this moral character).
o Thus, those who break unjust law do so at their own
risk, because as a law it still must be followed even if we
feel 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 in
the real world.
- The law is not always unjust, and a tyrant can create bad laws
but having state power, they must be followed. However,
these immoral laws will eventually be broken by majority of
the people and eventually become unenforceable (good
example 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 without
having the needed force to make it effective. Thus a just
state must exhibit a tempered union of natural law (force)
and natural justice (morality).
o Two types of unjust states:

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! Powerless states that lack the capacity to enforce

what 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 positive
and conventional rather than natural and inevitable.
- Corrective (transactional) justice sees to it that private
exchanges are fair and equal.
o That parties to a contract are not cheated, the victim of
another’s negligence are compensated.
o Corrective justice, however, may not be translated into
practice. Natural justice is not inevitably translated into
natural 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 treaties
proscribing it until after WW2.
- One of the achievements of the bourgeois revolutions was to
replace arbitrary tyrannical ruling with decisions based on
merit.
- The arbitrary character of aristocratic rule was replaced by
the 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 next
day a law is passed prohibiting smoking while driving a
car. Person X is then arrested for the act of smoking
prior 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 (although
not as general as fundamental rights or general
principles of law).
o The role of the judiciary on the other hand is to create
decisions ex post , relying upon rules promulgated by

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the legislator ex ante   (thus, decrees of courts are a lot

more 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 social
classes, etc.
o Thus, crimes done by family members or ascendants
could not be penalized against the descendants. Also,
crimes committed by a person belonging to a certain
class could not be penalized against all of the members
of that class.

CONCLUSION :

- The fundamental element of law does not consist of a

hierarchically ordered set of norms. Instead, they are
potentially conflicting conditional statements with contingent
enforcement 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 the
strongest while positive law are the arbitrary statements of a
legislator.
- 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 society
are generally accepted and are intersubjective. They reflect the
moral judgment and capacity of judgment of the society
depending upon the society’s state of economic development.

SECOND DAY

Bramble Bush

Precedent
• An official doing over again under similar circumstances
substantially what has been done by him or his
predecessors before

Foundation of precedent
• Official analogue of what in society:
folkways/institutions and of what is in the individual:
habit

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Precedent is the dignified name for the practice of the

officer/office
•The author thinks that unless there were such practice it
would be hard to know there was an office/officer
•If written records exist and are carefully and
continuously consulted, the possibility of change
creeping into the practices unannounced is greatly
lessened.

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 has
already done before, capitalizes the human drive toward
repetition by finding, making explicit, by urging the prior
cases
• To continue past practices is to provide a new official in his
inexperience of his predecessors.
o If he is idle - have their action brought to his
attention and profit by their industry
o If he is ignorant - can learn from them and profit by
the knowledge of those who have gone before him
o If he is foolish - profit by their wisdom
o If he is biased/corrupt - public check on his biases
and corruption, limits the frame in which he can
indulge them unchallenged
• The knowledge that he will continue what they have done
gives a basis from which men may predict the action of the
courts, a basis to which they can adjust their expectations
and 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 precedent
2. Legal norm that precedent is to be followed
• Main form of precedent
o The canon that each case must be decided as one
instanced under the general rule, other canons are
only to support this canon,

ORTHODOX DOCTRINE OF PREDECENT (strict view)

Applied to unwelcome precedents
•

Honorable technique for whittling precedents away. It is a

•

surgeon’s knife
Every case lays down a rule, the rule of the case
•

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o Ratio Decidendi = prima facie the rule of the case since

it is the ground upon which the court chose to rest its
decision
o BUT a later court can reexamine the case and invoke the
canon that no judge has the power to decide what is not
before him, through examination of facts or of the
procedural issue, narrow the picture of what was actually
before the court and hold that the ruling made requires
to be understood as thus restricted
o Extreme form result: confining the case to its particular
facts
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 results
o In thinking and arguing exclusively from the language
that is found in past opinions and in citing and working
with that language wholly without reference to the facts
of 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 be

persuasion and judgment.

State v. Rachel Pendergrass

2DW & V., NC. 365 [1837]
Facts:

The defendant kept a school for small children. On one occasion, a

little girl of six or seven years of age was whipped (with a switch)
by defendant after a milder treatment had failed. Some of the
marks from the whip went away after a few days but two marks
were proved on her arm and neck, which also disappeared after a
few days. The lower court ruled in favor of the State and found
defendant guilty of abuse.

Issue:

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Whether or not defendant is guilty of child abuse or if it was part

of the legal chastisement of pupils.

Ratio/Held:

The Court in this case found defendant not guilty and reversed the
prior judgment. The law grants to schoolmasters and teachers the
discretion to correct their pupils, analogous to that of their
parents. It is the duty of parents to command obedience to control
stubbornness and reform bad habits but to do this, he must have
the power to administer moderate correction when just and
necessary. The welfare of the child is the main purpose for which
pain is permitted to be inflicted. However, when the punishment
can seriously endanger life, limb or health or disfigure the child or
cause permanent injury, then the purpose of correction is not
achieved and this shouldn’t be allowed. But if it causes only
temporary pain and no permanent ill, then it is permissible. In this
case no permanent injury was done to the child and the only
appearances that could warrant the belief of threatened   permanent
injury were the bruises (on the arm and neck) but they were too
equivocal to justify.

State v. Black
60 N.C. 262 [1864]

Facts:

The defendant Jesse Black was charged with assault against his
wife Tamsey Black. According to the evidence, they lived separately
from each other and one day as Jesse was passing by the house
where his wife resided, Tamsey made an ill remark about a Sal Daly
and Jesse Black (“have you patched Sal Daly’s bonnet?”). They
exchanged angry words and Jesse accused her of having
connections with a negro. Then the Jesse grabbed her hair and
pulled her down the floor. He didn’t hit her but during trial she
said that she was hurt and her throat was injured and sore
although he did not choke her (at the trial she was completely
recovered). After she got up from the floor she continued to abuse
him. The defense argued that Jesse could not be convicted of
battery on his wife unless a permanent injury is inflicted or uses
excessive violence or cruelty.

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Issue:

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

Held/Ratio:

The Court in this case held that he was not liable for abuse against
his wife. The Court stated that a husband, being responsible for
the household, can do such acts and enforce a certain degree of
force as is necessary to control the unruly temper of his wife. Until
a degree of cruelty, or excess passion is inflicted, the Court will
not invade the domestic forum. Such an intervention would put the
parties as a public exhibition, widen the breach, make
reconciliation 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 recognizes
their separation can this be considered abuse. But a private
agreement to live separately doesn’t affect the fact that the
husband 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 single
person or a body of persons, should be sovereign only
in those matters on which law is unable, owing to the
difficulty of framing general rules for all contingencies,
to make an exact pronouncement. It is this dichotomy
between "general rule of law" and "personal discretion
to 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 such
imperfect generalizations.

Scalia gave some substantial competing values which often

contradicts the search for perfection. First of which is equal
treatment. Parents know that children will accept quite readily all

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sorts of arbitrary substantive dispositions -- no television in the

afternoon, or no television in the evening, or even no television at
all. But try to let one brother or sister watch television when the
others do not and you will feel the fury of the fundamental sense
of justice unleashed.

Second is predictability. Even in simpler times uncertainty has

been regarded as incompatible with the Rule of Law. Rudimentary
 justice requires that those subject to the law must have the means
of knowing what it prescribes. It is said that one of Emperor
Nero's nasty practices was to post his edicts high on the columns
so that they would be harder to read and easier to transgress. As
laws have become more numerous, and as people have become
increasingly ready to punish their adversaries in the courts, we can
less and less afford protracted uncertainty regarding what the law
may mean. Predictability, or as Llewellyn put it, "reckonability," is
a needful characteristic of any law worthy of the name. There are
times when even a bad rule is better than no rule at all.

Common-law approach is said to be as ‘the course of judicial

restraint, “making” as little law as possible in order to decide the
case at hand’. However, Scalia have come to doubt whether this is
true because in writing for the majority of the Court, he adopts a
general rule, and say, "This is the basis of our decision," he not
only constrain lower courts, he constrain myself as well. In the
real world of appellate judging, it displays more judicial restraint
to adopt such a course than to announce that, "on balance," we
think the law was violated here -- leaving ourselves free to say in
the next case that, "on balance," it was not. It is a commonplace
that the one effective check upon arbitrary judges is criticism by
the bar and the academy. But it is [very difficult] to demonstrate
the inconsistency of two opinions based upon a "totality of the
circumstances" test only by announcing rules do we hedge
ourselves in.

 Judges are sometimes called upon to be courageous, because they

must sometimes stand up to what is generally supreme in a
democracy: the popular will. Their most significant roles, in our
system, are to protect the individual criminal defendant against the
occasional excesses of that popular will, and to preserve the
checks and balances within our constitutional system that are
precisely designed to inhibit swift and complete accomplishment
of that popular will. The chances that frail men and women will
stand up to their unpleasant duty are greatly increased if they can

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stand behind the solid shield of a firm, clear principle enunciated

in earlier cases. It is very difficult to say that a particular convicted
felon who is the object of widespread hatred must go free
because, on balance, we think that excluding the defense attorney
from the line-up process in this case may have prevented a fair
trial. It is easier to say that our cases plainly hold that, absent
exigent circumstances, such exclusion is a per se denial of due
process.

The Queen v. Dudley and Stephens

14 Q.B.D 273 (1884)

Facts:

Four men (Dudley, Stephens, Brooks and Parker) were out in the
ocean in an English yacht while there was a storm. When the yacht
was damaged, they all escaped in an open boat. They had no
supply of food and water except for two tins of turnips and a small
turtle they caught. Stephen and Dudley decided, without the
consent of Brooks, that they would kill and eat Parker since he is
the youngest and weakest of them all. They fed upon Parker’s
body for four days and on the fourth day they were rescued. Upon
returning to land, Dudley and Stephens were arrested and brought
to trial.

Procedure:

The jury issued a special verdict. They found that there was no
greater necessity to kill Parker, than there was to kill any of the
others. However, the jury was unable to decide whether the killing
of Parker was indeed a felony.

Issue:

Are Dudley and Stephens guilty of murder for killing Richard

Parker?

Held:

Yes. Where a private person, acting on his own judgment, takes

the life of another, he is guilty of murder, unless his act can be
 justified by self-defense. The defendants were not protecting
themselves against any act of Parker.

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Ratio:

The defendants were subject to terrible temptation and sufferings

that may break down the bodily power of the strongest man and
try his conscience, but nevertheless the defendants put a weak,
innocent boy to death in order to preserve their own lives. They
denied the boy any possible chance of survival. The record shows
that the defendants were rescued four days after the killing of the
boy, but they were not to know that they would not be rescued
within hours or the next day, giving all four a decent chance to
survive. If they were rescued the next day, the killing would have
been unnecessary and profitless. The counsel for the defendants
urges that they killed out of necessity; however, necessity of a
private nature pertains to self-defense, which allows a man to take
another's life in his own defense. Parker was not a threat to the
defendants' lives; in fact, he was weak and could not offer any
resistance. While it may have been necessary to kill Parker for their
own survival, it is not an excusable or justifiable killing. This would
mean that if a man was poor and without clothes, he would be
permitted to steal another man's money and clothes in order to
save himself. The only justifiable homicide of a private nature is
the defense against the force of a man's person, house, or goods.
This necessity must be inevitable. While the court in this case did
not deem the acts of the defendants devilish, they still constitute
murder.

Law and Morality

By Altman

A Common Saying

Natural law is a corpus of moral truths that we can all discover. It

is a name for the point of intersection between law and morals.
Distinguish this from positive law, which refers to any system of
laws created by humans, only with validity over a particular
territory and its inhabitants.

 Judgment at Nuremberg

Two distinct lines of argument against the prosecution and

conviction of Nuremberg defendants:

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1) Trial should follow the rule of law. A trial is a proceeding

purporting to conform to the rule of law, summary execution
has no such pretense.
• No valid legal rules were in effect that outlawed “crimes
against humanity.” So the principle of “no crime without a
law was violated.
• The Nuremberg Charter did outlaw crimes against humanity,
but was adopted after the crimes took place, thus violating
principles against the retroactive application of law.
• International treaties didn’t make individuals criminally
liable, and there were no specific punishments.
• Prior to the Charter, international treaties didn’t criminalize
conspiracy, especially to the extent of the Charter making
every conspirator responsible for every act carried out.
• The tribunal was not an impartial one, since the judges came
from 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 a
morass of historical and moral questions.
• So, considering all of this, it was a political trial where the
victors used their superior power.
2) A sovereign power cannot be legally limited by any superior
power. There is no global sovereign who enforces international
treaties, so “international law” can’t really be authoritative and
binding.
• Under German law as it existed during the Nazi regime, the
defendants had not acted illegally.
• Acts of state are acts of the sovereign. These acts cannot be
illegal, because the sovereign decides what is legal and
illegal.
• Complying with commands that come from the sovereign
cannot be a crime.

 Justification of the trial:

• Several international treaties, including some to which
Germany was a party, renounced aggressive war. So this
declared what the international community had previously
agreed were crime.
• The charge of crimes against humanity were part and parcel
of the Nazi plan to wage aggressive war and commit war
crimes by exterminating Jews, Gypsies, etc.
• Doesn’t matter where the judges are from, as long as they
are independent and willing to listen to both sides, and to
render a judgment based on law and evidence. (this is
evidenced by fact that three defendants were acquitted, and
some not guilty on all counts) Only the most culpable got
death sentences.

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• Important to make public for historical purposes all of the

atrocities committed by the Nazis. No one could doubt after
all of the evidence that it was a horrifying campaign of
aggression and genocide.
• Sovereign states are obligated under international law. The
rule of law must be extended to the international
community.

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. Certain
things are intrinsically wrong, whether or not God decrees them.

On the other hand, Sir William Blackstone (1723-80) believes that

English law derives its authority from natural law. Blackstone wrote
his books on common law shortly before the United States
Constitution was written. Many terms and phrases used by the
framers were derived from Blackstone's works. The revolution
against the British can be said to be based on natural law – look to
the Declaration of Independence. “…they are endowed by their
Creator 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 what
is 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) –
Aquinas’s term for positive law, rules framed by the legal
community for the common good of its members.

Aquinas said a law that does not conform to natural or divine law
is not a law at all. Is this argument a convincing one? Aquinas is
confident because he knows 1) God exists; 2) God has ordained
that those in charge of political communities frame laws serving
the common good; and 3) the natural reasoning powers of humans
lead all reasonable persons to agree on basic principles.

Opponents would argue 1) there is no God; 2) even if there is,

God’s existence is not something we can know, but only believe in;
3) even if we can know God exists, we don’t really know what he

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intends from political leaders; and 4) reasonable people can

disagree over fundamental ideas of good and bad.

Lon L. Fuller
Fuller is noted legal philosopher, who wrote The Morality of Law  in
1964, discussing the connection between law and morality. His
debate with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of
significant importance for framing the modern conflict between
legal positivism and natural law. Like traditional natural law
theorists, Fuller wrote of there being a threshold that must be met,
or a test that must be passed, before something could be called
“law.” But the test that Fuller applies is one of function and
procedure and not just moral content. This is Fuller’s “inner
morality 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 system
that meets some could be considered “partly legal” and display a
greater respect for principles of legality than a system that doesn’t
meet the requirements at all.)

(P1) the rules must be expressed in general terms; (P2) the rules
must be publicly promulgated; (P3) the rules must be prospective
in effect, and not retroactive; (P4) the rules must be expressed in
understandable terms; (P5) the rules must be consistent with one
another, and not contradictory; (P6) the rules must not require
conduct beyond the powers of the affected parties, or have the
possibility of compliance;(P7) the rules must not be changed so
frequently that the subject cannot rely on them, or constancy; and
(P8) the rules must be administered in a manner consistent with
their wording.

Legal Positivism

Legal positivism is the view that the validity of any law can be
traced to an objectively verifiable source. This rejects natural law
view that law exists in some way separate from human enactment.
A common factor among legal positivists is that the law as laid
down should be kept separate for the purpose of study and
analysis from what the law ought to be. They share the view that
the most effective way to analyze and understand the law is to
suspend 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. He
argued the right act or policy he called "the greatest happiness
principle," often referred to as the principle of utility. The greatest
happiness of the greatest number is the foundation of morals and
legislation." Utilitarianism is the idea that the moral worth of an
action is solely determined by its contribution to overall utility, that
is, its contribution to happiness or pleasure as summed among all
persons. His critique of Blackstone was that the unwritten

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common law was intrinsically vague and uncertain, and cannot

provide a reliable, public standard that can reasonably be expected
to guide behavior. Legal codes would diminish the power of
 judges to interpret the law, and remove much of the need for
lawyers.

 John Austin

Austin was a noted British jurist and published extensively

concerning the philosophy of law and jurisprudence. He was a
disciple of Bentham.

Laws are general commands laid down by superiors to guide the

actions of those under them. These constitute positive law and
impose legal obligations. This compares to laws laid down by men
that are not as political superiors or in pursuit of legal rights. (Laws
by analogy like laws of fashion, and by metaphor, like laws of
gravity.) Those who act contrary to the rules may be punished at
the hands of the political rulers. In his view, this political leader is
the 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 always

separate. There is no connection between legal and moral
obligation. Concepts of law and legal obligation are purely “power
concepts.” Austin rejects the idea of an “international law” since
there is no global sovereign to issue and enforce commands. So
international 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 is

contrary to natural law or morality? Austin thinks yes, but that
doesn’t mean there aren’t situations where you might choose to
disobey an immoral law. But natural law types might say that
moral progress will be achieved by the rejection of unjust laws and
the refusal to obey them. Would this cause social disorder and
confusion? Austin would think so.

Bentham pursued the idea of a single, complete law. Austin built

his system on a classification of rights, but not a “complete law.” A
lot of his focus applies to criminal more than civil law. Austin was
also not as concerned as Bentham in checking the power of judges
and lawyers.

Law as command requires that there must always be a sanction

that follows failure to obey a command. “smallest chance of
incurring the smallest evil.”

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H.L.A. Hart

Hart is known for applying techniques of analytical and linguistic

philosophy 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 a
language. So he tried to illuminate the meaning of legal concepts,
the way we deploy them, and the way we think about law and the
legal system. He argues that we need to look to context – words
and rules can have a number of clear meanings. His 1961 work
The 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 physical
attacks.
2. Approximate equality – even the strongest must sleep at
times.
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 and

property, and to ensure that promises are kept. Legal rules are
divided into primary and secondary rules.

Primary rules involve the use of violence, theft, deception, things

that 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 changing
conditions by making it possible to eliminate old rules and
enact new ones. These rules confer power on individuals or
groups to enact legislation in accordance with certain
procedures.
2. Rules of adjudication – confer authority on individuals to pass
 judgment mainly in cases of breaches of primary rules. This
is mainly punishing the wrongdoer or making them pay
damages.
3. Rules of recognition – helps people recognize the rules under
which they will be held accountable. This is duty-imposing: it
requires those who exercise public power (judges) to follow
certain rules that are the accepted standards. Judges don’t
have to like the rules, just follow them.

Then, rules are either internal or external. External involves

outward behavior, people acting a certain way. While internal
involves the attitudes people take, like seeing deviation from the

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rules as something to be criticized. Hart thinks the internal part is

critical – there has to be social pressure to conform to rules, the
rules must help maintain some aspect of society regarded as
important and valuable, and sometimes requires people to act
contrary 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 don’t have
an obligation, because no rule imposes an obligation to obey. If
governments can create obligations by enacting laws, that’s
different from the gunman, because he can’t create an obligation,
moral, legal or otherwise.

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