POSC 130g 1st Edition Lecture 3 Idea of law situations where the law might be injustice Schools of Jurisprudence within the three schools Natural Law law and morality must coincide absolutist approach Legal Positivism law and morality are not related both are separate regardless if the law is just or not it counts as a law power is the main ingredient law is tied to the state and political apparatus of the state Historical School law reflects the value system of a community i e Nazis is the legal system moral Does it still count as a legal system Is there such thing as a amoral legal system The values and laws at the time reflected feelings and morals Criticism towards the schools Historical school must look at law at a social context Sociological legal realism understand law by looking at the actors peoples officials that interpret and enforce the laws behavioral revolution 1940s Behaviors of legal system prisons legal profession prosecutors juries etc 1960s imperial study and sociological study of the institution different approach to study of law Critical legal studies 1980s and 1990s political analysis of law radical and political analysis of law tried to deconstruct the doctrine tended to be liberal white professors who were mainly men Even though it was supposed to be a radical movement it seemed to reflect elitism Splintered into a lot of theories of law Critical Latino theory critical queer theory etc The notion of legality basic idea of law must give people notice of what the law is so people have the choice to modify their behavior have the opportunity to conform their activity for the law retroactive imposition of punishment HLA Hart one of the most famous legal theorists wrote a book called the Concept of Law basic idea union of primary and secondary rules His book gave the classic theory of legal positivism and he was criticizing the early legal positivist John Austin who argued that law should be thought of as an order backed by force Hart believed this was too simple and didn t have a place for the value of rules criticized Austin because his theory did not have any place for the concept of rules and used criminal law model rather than a civil law model If Austin thinks of an order backed by force that is more criminal law and may feel intimidated not to act in a certain way because they might be punished Contracts are not orders backed by force it is a mutual agreement Austin does not capture the understanding of transactions of civil law Primary rules specific rules that apply in circumstances i e keep off the grass don t drive 25 mph in a residential area etc this is not enough to have a legal system there are three problems that arise when having a set of rules uncertainty about whether there are rules or if two laws seem to be in conflict static character wouldn t have a mechanism by which to revise and update laws things changed radical change in circumstance rule may not be appropriate anymore inefficiency if two people disagree on how a law works what the rules require how can they arise at a compromise doesn t incorporate any mechanism or institution about what the primary rule is need some sort of authority set of rules is not enough Secondary rules rules to address the problem of primary rules Rule of recognition rule that tells which of the primary rules are valid addresses problem of uncertainty designates the valid rule could be a variety of things every recognition needs a secondary rule to help recognize the primary problems i e could be whatever the Queen says in Parliament whatever is in the Constitution is legally binding whatever the tribal elders say Rules of change authoritarian mechanisms to address static characters Rules of judication need courts or institutions when people have conflict over the rules Problems of Hart s theory whole thing is about rules doesn t deal with the fact that institutions behave differently obsessed with validity of primary rule but why should we accept the validity of the secondary law unless there are a treasury set of rules to tell which secondary rules are valid there is a level of uncertainty What validates the rule of recognition Why should we have to accept the rule of recognition Paul Bohaman legal anthropologist idea of law law is custom that has been double institutionalized says that we may have customs that are important to us and once those customs become sufficiently important we designate them as laws Laws are custom double institutionalized both custom and laws Theory doesn t help answer why some laws customs are so significant that they must be double institutionalized Why must these be reclassified as double norms It is hard to distinguish between those conventions that are legally binding and those that are customs Customs have birthday parties today is Martin Luther King s birthday Law legal federal holiday Once you make a custom and make it into a law law is a custom that has been double institutionalized When one makes a bargain with something you must shake hands Is that legally required or is it just a custom Sometimes law comes before the custom for example if there are negative practices like discrimination one may try to use the law Using the law to make new customs in society one of the difficulties in this theory Lawyers as Gatekeepers in the Legal System Negotiation where people work out problems people who have a conflict work it out without a third party Mediation have a conflict where people work out problems with a third party but they don t say anything really arbitration private system not part of courts in government resolution outside of courts juditation go to court judge must work it out lawyers are important to process disputes part of courts in the government Lawyers are important because they help people seek justice people have the right to a lawyer guaranteed in 6th amendment Monroe explains that it is crucial for legal order to have the right to council preserves dignity of individual Lawyers duty is to client professional ethic what lawyer must do to represent client may be different then what they actually believe Professional vs Personal morality Lawyers may have to represent people who do things they do not support job is to represent clients to the best of their ability They must know their responsibility their own sense of justice and morality cannot intrude on this time of analysis This may partly explain why lawyers have a negative image in reality Bar