Unit 3:“The Basic Roles in a Paradigmatic Legal System,” Secondary rules that Hart identified creates need for social roles that we recognize as a legal system. Paradigmatic legal system: A legal system that has introduced a rule of recognition, rules of change, and rules of adjudication This creates “roles” we recognize as essential elements of legal system

What is a paradigmatic legal system?  Remember how Hart showed us that there were secondary rules necessary to remedy the flaws of relying upon social norms alone? This is what leads to creation of a legal system. A paradigmatic legal system is one that has introduced a rule of recognition, rules of change, and rules of adjudication. Introduction of these rules causes the creation of new social roles that are distinctively legal.

What are the distinctive social roles of a legal system? (3 of 28) These social roles are subject, legislator, and judge. Judge: One who applies the law to resolve disputes. Legislator: One who makes authoritative laws for the common good. Subjects: Those whose behavior a legal system claims to govern.  

What does it mean to be a subject, legislator or judge? These roles are constituted by two kinds of rules – occupancy rules, which describe what must be the case for someone to be in a particular social role, and performance rules, what is to be done by someone in such a role. These rules describe what it means to be a subject, legislator, or judge.

What about lawyers, police, etc? Paradigmatic legal systems may generate secondary roles as well, such as lawyers, to help resolve difficulties in recognition and adjudication of law, or roles related to enforcement, such as police, prison wardens, and executioners. These roles are secondary because a legal system theoretically could exist without these roles, but could not exist without the roles of subject, legislator, and judge.

Do you agree? (6 of 28) How could a legal system exist without lawyers? How could a legal system exist without law enforcement?

Neutral questions and moral questions Occupancy and performance rules are conceptual – how does a person come to be in a role and what are the parameters of that role? These questions are morally neutral. How one ought to act in the role is a different and substantive moral question. What does it mean to be a good subject, legislator or judge?

The morally neutral occupancy and performance roles of a subject…. Subjects occupy that role if they are among those whose behavior a legal system claims to govern. To be a subject is not necessarily a voluntary undertaking. The performance role of a subject is to obey the law, which includes deference both to the legal norms of the system and officials charged with interpreting and applying those norms.

The moral question…. (9 of 28) However, whether one ought to be a “good” subject and obey law is a separate moral question.  ???????????????????????????????? Why should subjects obey the law? Should subjects always obey the law?

One argument is that one ought to obey the law is based on consent. "Consent of the governed" is a phrase synonymous with a political theory where in a government’s legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that power is exercised. This theory of "consent" is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism.

But have we really consented? Other than immigrants, few have expressly consented to be subject to law. Do you agree?

What about implied consent? (12 of 28) Regarding implied consent, citizens who choose to remain in the jurisdiction or who choose to vote are likely are doing so for reasons other than a desire to be subject to the jurisdiction’s laws.

Other arguments for obedience (1) that harm would result if subjects did not obey the law; (2) that it is unfair to accept the benefits of society without also accepting the burden of complying with the law; or (3) it is unfair not to shoulder one’s share of collective responsibility of obeying the law for the common good.

Is the duty to obey absolute? What if laws are unfair in dividing the burdens shouldered for the common good? What if laws are very unwise or vicious? Does that justify disobedience? Can you think of examples?

Revolutions and Civil disobedience American French Russian Others MLK, Rosa Parks, etc. Ghandi War protestors

Legislator role…. lawmakers Performance rules are that laws that are made must be authoritative and for the common good. What if a lawmaker didn’t even pretend to be acting for the common good? “I’m making this law just to benefit me and my friends and it will harm the rest of you.” Is he/she still a lawmaker? Is common good really necessary? Occupancy rules for legislators are social facts, e.g. elections. Do corrupt elections affect occupancy rules? Or is it just another kind of social fact? Lawmakers could be chosen by lot, take power by force, etcetera. Elections aren’t the only way  

Your author says…. (17 of 28) Laws also must be for the common good. Any law that serves the interest only of the legislator or the good of some partial group is contrary to the role of legislator. Study your author’s discussion of this point. What do you think? Does the notion of law become nonsensical if it does not purport to be for the common good?

Author says, to be authoritative, laws must provide subjects with genuine reasons for action. True? To serve as a guide, laws must satisfy the formal features identified by Fuller, i.e., be public, prospective, comprehensible, etcetera. The author says that to be genuine guides for action, the laws also must be sufficiently reasonable that subjects can rightly take the rules to be binding. True?

How should a lawmaker carry out duties? Legislating by objective benevolence would require lawmakers to consider the well-being of every subject and advance the well-being of all subjects evenhandedly. Legislating by representation would require lawmakers to make laws that reflect the attitudes, preferences, and beliefs of the subjects.

How do people’s beliefs factor in? Under the objective benevolence approach, a legislator might consider the people’s beliefs only as a factor relevant to effectiveness of the proposed law. (i.e., will they obey) Under the representative approach, the people’s beliefs serve as the premises for the law.

Why should legislators perform their duties? Your author says, as long as there is a fair way to assign people to the role, fairness requires that a legislator perform the duty as his or her fair share of the work of supporting the common good.  Do we have a duty to do our share to support the common good? What do you think?

Judge role… (22 of 28) Occupancy rules are social facts. Who is a judge is determined by the adjudication rules of the legal system. The performance rule is to apply the law to resolve disputes. How does interpreting the law relate to the commonplaces of social fact, authority and common good?

The author argues re Judges interpreting law…. Legislative intent: Interpreting statutes in the context of legislators’ intent relates to the commonplace that law is for the common good, because lawmakers are charged with articulating and promoting the community’s common good. Plain meaning rule: Interpreting according to the words in the statute only (plain meaning rule) relates to commonplace that law must be authoritative, as subjects who are to be guided by the statute have only the statute as a resource.

Distinction between general rule and application in particular cases.. Another interpretation issue concerns the distinction between a legislator’s concept of prohibited behavior and what a legislator counts as an instance of violation of the law (application of the concept to a particular case). Using racial discrimination as an example of a concept of prohibited behavior, affirmative action might or might not be counted by the legislator as an instance of racial discrimination.

Exercising judicial discretion Judicial discretion: The power of the judge to make decisions on some matters without being bound by precedent or strict rules established by statutes. If a judge is not entirely bound by a legislator’s beliefs about what constitutes an instance of discrimination, should the judge decide based upon what the community would think (a representative approach) or what the judge objectively thinks?

How much discretion do judges have? Hart says legal rules have a solid core of determinate cases and a penumbra of indeterminate cases in which judicial discretion can be exercised. Where others differ with Hart is the extent of indeterminate cases. Ronald Dworkin says that judicial discretion is quite limited and that judges are constrained by principles permeating the entire body of law. Judges should aim for a ruling that fits best with the entire body of law. The correct decision proceeds from the most defensible account of the principles that underlie the body of law as a whole. Dworkin says this is the most plausible explanation of how judges actually decide cases and shows how decisions can be determinate in hard cases.

American Legal Realism… (27 of 28) At the other extreme is American Legal Realism, which claims that all or nearly all judicial decisions are discretionary and the judge in the role of discovering what pre-existing legal rules require is a charade or an illusion. Is legal reasoning an illusion or is it a genuine exercise in reasoning? What do you think?

What if the law is unjust? Like subjects and legislators, judges are obliged to apply the existing law as their fair share of the burden of promoting the common good. However, tensions arise when the law being applied is substantively deeply unjust. Should a judge subvert the law? Judges must profess to be acting within the law, so a decision intended to subvert the law involves public duplicity calling into question whether judges really are performing their roles. Should a judge recuse rather than participate in enforcing an unjust law?

Judicial Discretion http://www.nytimes.com/2010/06/15/opinion/15tue2.html What do you think? If you were a Justice on the Court, where would you have come out on this decision?