The Law: Dworkin's Principles

Back when I started this law stuff, I intended to do 1 post of background, and then get to the stuff I actully wanted to say. And here we are, part four, and it's still just background. So I'm going to quickly blow through Ronald Dworkin's ideas, get to the CLSers, and move on to other things.

Dworkin argued that despite the gallons of ink spilled over the issue, the question "What is the law" had yet to be properly answer. He thought the Realists were arrogant, and that the Positivists answered many questions, but not the truly fundemental ones.

Realists argued that judges have true discretion, while Positivists say judges are bound by the secondary rules. Dworkin says neither answer is sufficient. In practice, judges do not have unlimited discretion and there will always be cases in which the rules are insufficient.

Judges are bound by principles. The distinction between principles and rules is important. Rules are hard and fast, all or nothing. A rule is meant to apply 100% of the time; all exceptions must be explicitly listed as part of the rule. If two rules contradict each other, one must be erased; they cannot exist side by side.

Principles work differently. Principles are not all or nothing; they can apply to some cases, and not to others. They do not have explicit exceptions, because the principles themselves are not explicit. They are simply part of our common conception of justice.

One of Dworkin's example cases is Henningsen v. Bloomfield Motors (1960). Mr. Henningsen bought a car; the warrenty said the manufacturer's liability was limited to "making good" defective parts, and abosolutely nothing else.

My textbook offers no details of the case, but for whatever reason Hennginsen argued that the manufacturer should be liable for more than just parts. At the time, there were no rules governing this issue, but the court decided for Henningsen. The court said that cars are important and dangerous, so manufacturers need to be liable for more than just parts. The court also said it couldn't support an agreement where someone's economic necessity has been exploited.

The court relied on principles - especially the bit about not exploiting economic necessity. The court considered another principle - the need to hold up contracts. Here we have two principles that contradicted each other; the judge needed to weigh the two against each other. This is another aspect of principles; they have weight. In each case, the judge must decide which of the possibily contradictory principles is the most important.

And how do judges weigh principles? Well, it's what you call a hermenutic process. Unfortunately, the rule of recognition cannot deal with principles; the RoR can only handle rules. Principles, Dworkin believes, spring from the meaning of justice itself.

For Dworkin, the law is a continuing story. Each judge - or generation of judges, I guess - writes the next chapter. When dealing with an open texture case, a judge needs to look back over the precedent cases, and find the themes and ideas that are most important, and find a way to tie his current case to those themes.

It's like writing a chain novel. Dworkin's example is A Christmas Carol. Let's imagine a judge in the position of basically writing the last chapter in this novel. How is he going to portray the character of Scrooge? Should the theme of capitalism run amok win out by chosing to have Scrooge continue his ways? Or should the theme of redemption win out, by chosing to have Scrooge reconcile with Cratchet?

That's the work of the judge; picking out the themes of the past and continuing the story.

Review of Star Wars Episode III

This review needs a bit of context. I went into this movie with thoughts of Ep 1, 2, and Return of the Jedi in my mind.

I came away giving Ep 3 the benefit of the doubt in two aspects. One, Episode 2 should have been Episode 1. And this movie - Revenge of the Sith - should have been split in two. There was simply too much ground for one movie to cover. I don't believe this should be held against Episode 3 as a movie as such. Sins of the father and all that.

Second, I had watched Return of the Jedi the night before, my personal favourite of the originals. I haven't seen any of them in quite some time, and watching it now it hit me just how pulpy those movies were. I don't mean that as an attack, of course. RotJ has plenty of bizarre plot points and the Ewoks were obviously the spiritual predecessors of the Gungans. In a word, the original trilogy was not infallible, and it is unfair to compare the prequels to them as if they were. This doesn't redeem Eps 1 or 2 in any way, but it gives some leeway to Ep 3.

I think that takes care of two of the main criticisms that could be levelled at Ep 3. Too much happened, and there was an awful lot of pulpiness.

One thing the originals always had that the prequels don't, of course, is humanity. Watching RotJ, it's easy to be reminded how cool Han Solo was. There is no one truly likable in the prequels. All three are much more sterile.

Now, Ep 3 itself. Specific annoyance: A2D2. The first half hour of the movie, he was a smug little toy that could have been blown out of an airlock and the audience would have cheered. Then he went away. Enough said.

The dialogue, for the most part, was very workhorse. Very little that was clever or interesting. Same with the acting; though Hayden Christensan managed to upgrade from whiny bitch to angsty teenager. Same species, just a little less grating.

This changed in the last half hour. When Kenobie confronts the newly minted Vader and Yoda goes after Palpatine, I thought the acting and dialogue finally found their footing. Ewen McGregor in particular did a fantastic job with some genuinely sad dialogue, half mourning, half pleading. And Yoda had the best line of the movie, in response to Palpatine's "The Jedi are no more!" --- "Not if anything I have to say about it."

This was probably the best looking movie ever. The battle scenes were spectacular; I promise, these are the best fantasy-sci-fi battle scenes ever filmed. I can't imagine them being topped anytime soon.

When the climax was arriving, I was riveted. As Samuel L. Jackson's character went to confront Palpatine, I was into it. I even had a sense of dread, something the other prequels never generated.

So. Keeping in mind that this movie gets a free pass on the many silly plotpoints and the overstuffed narrative, I'm going to just say it: Episode III can stand with the original trilogy. My first instinct was to call it better than Return of the Jedi; maybe I was hasty. But it certainly is a contender. Maybe the best I can say is this: the sins of Jar Jar have been erased. That might be enough.

Sarah McLachlan Concert

Rather than repeatedly tell people what I thought of the Sarah McLachlan concert on Sunday night, I figured I'd just write it out here.

Every artist has their own demographic. Avril Lavigne has her teenypoppers, 50 Cent has his suburban white boys, and Nine Inch Nails have their angsty, black-wearing Trenchcoat Mafia types.

After standing around at the JLC for 5-10 minutes, McLachlan's own demographic becomes obvious: women. Lots of them, of all ages. McLachlan's record label no doubt has a second target demographic, at least for concerts: boyfriends and husbands.

So there I stood, the only single, straight male for at least a mile. I made a lesbian joke or two in an attempt to maintain some semblence of masculinity, but I'm not sure it worked.

So we made our way into the arena, and the first band came out: the Toronto-based Samba Squad. It was a great way to kick off the night; they really pounded the beats out. As far as opening acts go, this one was surprisingly good.

The Perishers stepped up to the plate next, and struck out nicely. It's a toss up as to the worst opening act ever: The Perishers, or "Shaker," who opened up for Great Big Sea last year. Boring, emo mush rock. I might have gnawed my leg off at the knee to dull the pain from their music, but luckily they were short.

Then McLachlan began her set with "World on Fire" and "Building a Mystery," my favourites. Oh, the World On Fire Video is very cool. Clicky.

I'm not enough of a fan to know the names of most of the songs, but they were good. She obviously has an amazing voice. Once or twice, it sounded like she was about to break out into gospel R&B, and boy did I lean forward in anticipation. Didn't quite happen, though. She stayed the songbird path, what she does best.

The most spectacular performance was for "Possession." Great lighting, and played with obvious passion.

Her stage banter was charming, definately better than The Perishers' "uh... yeah, we're The Perishers... buy our CD, or something..." She rambled a bit, like she was doing an episode of VH1's Storytellers. It was nice.

She tossed in a cover of "Salsbury Hill," I guess a ode to her home, Canada. Great stuff.

So what if I'm not her target audience. So what if I listened for every hint of rock from her voice, hoping for me. It was a great concert.

The Law: Hart's Rule Theory

I told Titus that I'd have a post coming soon about why Francis Schaeffer is a terrible historian, but that'll have to wait for a bit. I want to finish this law stuff first.

After the battering legal positivism took by the Realists and the Holocaust, H. L. A. Hart stepped in to take a swing at defending it. He argued that Austin's command theory was pathetically simplistic - after all, the law contains a great deal more than "Don't do this, or I'll hurt you" type statements.

Hart begins by contrasting pre-legal primitive societies and complex legal societies. Both types of societies have particular expectations of their members. To remain a member of a particular society, you must accept its particular rules. These are the natural rules of obligation (NROs). Primitive societies, however, only have a small, limited list of NROs that are easily navigated by individuals and enforced by the society. Hart stumbles here and leaves a problem to be discussed later - how NROs are generated in the first place, and why they typically do not require violence to be enforced. He makes a great deal out of the difference between being "obliged" and being "obligation," but I don't think its as satisfying an answer as the Foucault, discourse-based Critial Legal Theorists will offer.

Complex societies, however, are made of many smaller groups, each with their own NROs; for a complex society to remain coherent, certain NROs must be agreed upon to become primary rules of obligation (PROs). These are the rules that apply to all of the smaller groups, whatever other NROs each group may impose upon their members.

Sexual issues can provide examples of both NROS and PROS. Typically, religious groups have rules against adultery. Remaining monogamous and faithful is a natural rule of obligation for many of these groups. It is no, however, a primary rule of obligation. One example of a sexual PRO that our larger, complex society enforces on everyone is a restriction on sex with children.

A formal legal system (FLS) is marked by its ability to identify these PROs through secondary rules of obligations. (SRO). These are the administrative rules that govern the creation of PROs. There are three SROs.

The first is the rule of recognition. (RoR) The RoR describes the proper source of laws in any given complex society - i.e., Canada's Charter of Rights and Freedoms or the United States Constitution.

The second and third SROs are closely related to the RoR, and many argue they are simply sub-sections of recognition. There is the rule of change (RoC) - who has the authority to change the PROs? The other is the rule of adjudication (RoA) - who has the right or responsibility to enforce the PROs?

There is another ambiguity that appears here. How is the RoR itself recognized? All PROs flow from the RoR - so the RoR cannot be a PRO itself. The RoR must first be recognized before it can generate PROs - meaning the RoR is in fact itself an NRO. To remain a member of a particular complex society, you must accept its rule of recognition. Hart is left trapped in circular reasoning.

Hart runs into another problem. A FLS cannot rely on rules alone; situations will continuously arise in courts in which the RoR has not generated a PRO, or in the validity of a PRO is being challenged. These are situations in which rules simply run out. Hart describes this as "open texture" and argues that judges are left to their own discretion in these situations. Hart almost becomes a Holmesian realist here. Hart's problem is that he cannot describe how and why a judge might handle an open texture case in a particular way.

And yes, that's where the name of this blog comes from. Open texture is where all the fun is!

And now, I have to decide: do I actually want to write a post about the Seperation Thesis, or just cut and paste my study notes? Or should I just move on to Dworkin's theory of the settled law? Decisions, decisions.