2010 paper, q. 4: 'When it comes to the
question of the
existence or scope of a moral obligation to obey the law, there need be
no difference of opinion between legal positivists and natural
lawyers.' Do you agree?
TEMPTATION: Obligation to obey question! Yay! I'll rehearse Raz's
argument why there is no general prima facie obligation to obey.
Mmmm... how can I link this to positivism v natural law? Well, Raz says
he's a positivist, and he disagrees with Finnis, who is a natural
lawyer. So I will disagree with the statement: there is a difference of
positivists and natural lawyers on the obligation to obey question.
CORRECT THINKING: This question is as much about positivism and natural
law, as it is about the obligation to obey debate. I am asked to
consider these two debates and whether there is a connection between
them. In other words: do positivists necessarily have to adopt one
position on the obligation to obey debate, and do natural lawyers
necessarily have to adopt the opposite position? I should begin by
clarifying what I think the distinction between positivism and natural
law is (and this is a very very contentious question). So, although I
had prepared to defend Raz's position on the obligation to obey debate,
I won't be writing about this after all.
2010 paper, q. 7: Is there truth in the
that a theory of law informs every judicial decision?
TEMPTATION: This must be a Dworkin question. Hence it must be asking
whether law always determines every judicial decision. I'll explain the
early Dworkin on rules and principles, then the later Dworkin on the
interpretive judgment, and I will disagree with him and defend Hart on
the issue of judicial discretion.
CORRECT THINKING: The question is whether a theory of law
judicial decision. This is not - directly - a question about
discretion. It is about Dworkin's famous claim that every judicial
decision relies on a theory of law (which is its "silent prologue"),
hence judges must also be legal theorists, however implicitly. I should
critically discuss why Dworkin
thinks that theory of law and adjudication are continuous (he says that
judicial decisions presuppose a stance about the grounds of law, and a
stance about the grounds of law is a matter of political morality, the
very thing sound legal theory is about [e.g. why we should treat
yesterday's decisions of Parliament as warrants for the use of state
coercion today]). Oh, yes, there are criticisms of this: Endicott,
Finnis, Gardner, Raz... (legal obligation v moral obligation, sound
legal theory is descriptive, "law" v "the law", etc.).
But I really
wanted to talk about discretion! Well, perhaps I can build it in: after
all, Dworkin thinks that a stance about the grounds of law not only
determines decisions in easy cases but also (and most palpably) in hard
cases, i.e. where the 'sources' (past political decisions) run out.
2010 paper, q. 8: 'The coercive dimension
of the legal
system is as important in private law as it is in criminal law.' Do you agree?
TEMPTATION: Ah-ha! Hart versus Austin. Austin said that all laws had
sanctions, so he thought coercion was equally important in criminal and
in private law. Hart said that Austin was wrong to neglect
power-conferring rules, which do not impose sanctions but provide
facilities. Private laws are power-conferring laws. Hence, the coercive
dimension of law is less important in private law, as Hart showed. I'll
disagree with the statement.
CORRECT THINKING: What is meant by coercive dimension? (Does it just
mean whether laws have sanctions, or whether sanctions are decisive to
people's motives? Or something else?) Is all of private law
power-conferring? Are all power-conferring laws private? No and no. Private law
tort, trusts...) is
of both duty-imposing and power-conferring laws (e.g. the
to make a contract, and the duties acquired by the parties once the
contract has been made). So does public law (admin, constit... even
crim). That's because duties and powers are always
powers are the tools to create or change duties. Hence the
criminal/private distinction is not the duty/power distinction, and
hence I need to do something more than just rehearse Hart's criticism
2010 paper, q. 10: Should legal systems be
having authority? Should they be understood as claiming authority?
TEMPTATION: Authority! Yippie! I'll explain Raz and say that he's
right, and that Wolff is wrong: authority is compatible with autonomy.
Since Raz also says that the law claims authority, that's the correct
CORRECT THINKING: I had hoped to write about authority and autonomy,
but this question is not about it (at least not directly). WHat is it
to 'have authority'? Raz isn't clear on the matter (that's probably why
this is being asked). It could mean "de facto authority" or "legitimate
authority". Certainly legal systems should not be understood as all having
(they only have legitimate authority under certain conditions). But Raz
says that all legal systems have de facto authority. I'll critically
discuss what Raz means by de facto authority. As for the claim, that
too is a controversial idea of Raz. It's not at all obvious that legal
systems make claims. That's a personification: the law can't speak, it
doesn't have a human voice. I'll critically consider how Raz supports
his proposition that legal systems make a moral claim. Perhaps I'll
conclude that his grounds for making this proposition are shaky - which
would be funny, given how central this proposition is to his whole
theory! (exclusive legal positivism and all...)
2010 paper, q. 15: Is it necessary to have
system so as to achieve coordination between people? Is the ability to
provide solutions to coordination problems an important characteristic
of all legal systems?
TEMPTATION: That's about Finnis. I'll explain that he thinks the law is
for the common good, and somehow related to the seven basic goods, and
that unless we coordinate we will collide on the roads, etc.
CORRECT THINKING: I must do various things here. First, I should give a
technical definition of coordination problem (not just treat it as a
synonym for 'collective action' or 'organized behaviour'). Secondly, I
should assess whether the law is necessary to achieve that: hence, I
should consider if things other than the law (custom, convention,
propaganda...) could achieve coordination equally well. Perhaps I will
conclude that the law is necessary (so Green is wrong about this).
Thirdly, I must ask whether this means that coordinating is an
important characteristic of all legal systems. For it could be that
legal systems are necessary to achieve coordination, but that this is
not an important characteristic of them all. (Similarly, it could be
that legal systems are necessary to achieve pollution, but that this
isn't an important characteristic -- but just a side-effect or
by-product -- of all legal systems.) So I must ask what counts as an
"important characteristic" of a legal system. And then see whether
coordination is one.
2010 paper, q. 16: 'Given the multiplicity
of aims that
the criminalisation of conduct can serve, it is impossible to establish
that it would never be legitimate to criminalise harmless conduct.'
TEMPTATION: Moral limits question! Is it ever legitimate to criminalize
harmless conduct? The harm principle says no. The quotation suggests
that it's impossible to establish that the harm principle is always
true: it could sometimes be legitimate to criminalize harmless conduct.
I'll disagree with the quotation, and defend the harm principle: it is
always illegitimate to criinalize harmless conduct. So I'll discuss
Mill, then Raz's improvement, and criticize Devlin and Feinberg's
offence principle in the process.
CORRECT THINKING: The quotation presents a piece of reasoning: given that X, Y
must follow. I
am being asked to consider whether this reasoning is tight. So I'm not
just being asked whether Y is true. I am being asked whether Y follows
from X. The quotation is saying: because the criminal law can serve
many aims, there may be exceptions to the harm principle. To discuss
this, I must first unpack what is meant by the first half of the
quotation... the criminal law can serve many aims... is this just
descriptive? Or does it mean legitimate aims? Probably the latter,
since the second half of the quotation deals with what is legitimate. Is it
true that there
are many legitimate aims of criminalization? I thought the harm
principle was justified by the aim of autonomy. Are there other
legitimate aims of criminalization? If so, do they compete with
autonomy? Or are they just part of the aim of autonomy? Or do they
coexist with the aim of autonomy? If they coexist with autonomy, and
they require criminalizing harmless conduct, then the quotation might