POSC 130g 1st EditionLecture 3Idea of law: situations where the law might be injusticeSchools 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 contextSociological: legal realism, understand law by looking at the actors/peoples/officials that interpret and enforce the laws, behavioral revolution, 1940sBehaviors of legal system, prisons, legal profession, prosecutors, juries, etc. 1960s, imperial study and sociological study of the institution, different approach to study of lawCritical 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 punishmentHLA 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 theoryof 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 forceHart believed this was too simple and didn’t have a place for the value of rules, criticizedAustin 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 mutualagreement. Austin does not capture the understanding of transactions of civil law. Primary rules: specific rules that apply in circumstancesi.e .keep off the grass, don’t drive 25 mph in a residential area, etc. this is not enough to have a legal systemthere 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 anymoreinefficiency: 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 enoughSecondary rules: rules to address the problem of primary rulesRule of recognition: rule that tells which of the primary rules are valid, addresses problem of uncertainty, designates the valid rulecould be a variety of things, every recognition needs a secondary rule to help recognize the primary problemsi.e. could be whatever the Queen says in Parliament, whatever is in the Constitution is legally binding, whatever the tribal elders sayRules of change: authoritarian mechanisms to address static charactersRules of judication: need courts or institutions when people have conflict over the rulesProblems of Hart’s theory: whole thing is about rules, doesn’t deal with the fact that institutions behave differentlyobsessed 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 anthropologistidea 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 normsIt 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 birthdayLaw: legal federal holidayOnce you make a custom and make it into a law, law is a custom that has been double institutionalizedWhen 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 likediscrimination, one may try to use the law Using the law to make new customs in society, one of the difficulties in this theoryLawyers as Gatekeepers in the Legal SystemNegotiation where people work out problems, people who have a conflict work it out without a third partyMediation: have a conflict where people work out problems with a third party but they don’t say anything reallyarbitration,: private system not part of courts in government, resolution outside of courtsjuditation: go to court, judge must work it out, lawyers are important to process disputes, part of courts in the governmentLawyers are important because they help people seek justice; people have the right to a lawyer, guaranteed in 6th amendmentMonroe explains that it is crucial for legal order to have the right to council, preserves dignity of individualLawyers: duty is to client, professional ethic, what lawyer must do to represent client, may be different then what they actually believeProfessional vs Personal moralityLawyers may have to represent people who do things they do not support; job is to represent clients to the best of their abilityThey must know their responsibility, their own sense of justice and morality cannot