Legal Theory Autumn Term 2022-23

G. 72 Law and International Relations.

Prof. Victoria Roca

Week 4. 4th-7th of October

Lesson 3 Law and Norms (Second part)

List of Materials, Activities, Questions (guide-lines to read and to study materials) to

prepare lesson 3.

To read/study
• Atienza, M. (2012): “Derecho y Normas”, en El sentido del Derecho, Chapter 3.
[BACKGROUND MATERIAL]
• Wacks, R. Philosophy of Law. A very Short Introduction. Read in chapter 3,
Introduction 49-51, Hard Cases 51-55, Principles and policies 55-57.
• Hart, H.L.A (1961): “The Elements of Law”, in The concept of Law, Oxford
University Press, second edition, 1994, Chapter. 5, paragraph. 3. [DONE]
• Dworkin, R. (1978), The Model of Rules I.
• Schauer, R. (2002): “Rules as generalizations”, Playing by the rules.

Guidelines.
1. Explain the idea of generalizations (Schauer’s materials), rules as prescriptive
generalisations and the structure of rules.
2. Characterize the notion of supra and infra-inclusiveness.
3. According to Schauer’s approach, what is the rationality of the practice of enacting
and following rules?
4. Read paragraph “El concepto de sistema jurídico” in Atienza’s El sentido del
Derecho, chapter 3. Make sure you understand the notion of deductive system,
normative system, legal system (notion of plenitude and coherence), notion of
legal order.
5. What are the basic tenets of a positivist approach to Law according to Dworkin?
Notice that Hart’s approach is positivist.
6. Notice Dworkin’s objection to the command theory (commands back by threats;
Austin’s approach). We elaborated on this when we covered Hart’s Persistent
Questions material.
7. Read carefully Dworkin’s synthesis of Hart’s characterisation of legal rules. It will
help you to understand and to study last week material: Hart “The Elements of
Law”.
8. What are the two possible sources of a rule’s authority according to Hart’s
approach? [see page 20 Dworkin’s The model of rules]
9. Dworkin writes: “My strategy will be organized around the fact that when lawyers
reason or dispute about legal rights and obligations, particularly in those hard
cases when our problems with these concepts seem most acute, they make use of
standards that do not function as rules, but operate differently as principles,
 policies, and other sorts of standards. Positivism, I shall argue, is a model of and
for a system of rules, and its central notion of a single fundamental test for law
forces us to miss the important roles of these standards that are not rules. I just
spoke of "principles, policies, and other sorts of standards." [page 22 The model
of rules]. In these lines, Dworkin takes a step into his characterisation of the
content of Law. Notice that both rules and principles are part of Law in his
approach. [You can read Atienza, El sentido del Derecho, chapter 3 paragraph
“Normas regulativas o deónticas: principios y reglas; normas de acción y de fin”.
And then read “Las normas como razones para la acción” to understand the
difference between rules (exclusionary reasons for action) and principles in
practical reasoning (Notice: ethical, political and legal reasoning are dimensions of
practical reasoning; practical reasoning is a kind of reasoning involving values; as
opposed to theoretical -descriptive- reasoning proper to the world of science).
10. Reconstruct Riggs versus Palmer case. What sort of standard is there involved?
11. What is the difference, according to Dworkin between rules and principles
(generic)?
12. Dworkin writes: “In my skeleton diagram of positivism, previously set out, I listed
the doctrine of judicial discretion as the second tenet. Positivists hold that when a
case is not covered by a clear rule, a judge must exercise his discretion to decide
that case by what amounts to a fresh piece of legislation. There may be an
important connection between this doctrine and the question of which of the two
approaches to legal principles we must take. We shall therefore want to ask
whether the doctrine is correct, and whether it implies the second approach, as it
seems on its face to do”. [page. 31 The Model of rules] Read Dworkin’s
elaboration on Discretion. Try to reconstruct in few words Positivist (Hart’s)
approach to Judicial Discretion and Dworkin’s approach. Make sure you
understand the notion of discretion in the strong sense. According to Hart do
judges have that kind of legal discretion in hard cases (cases not covered by legal
rules)? According to Dworkin do judges have strong discretion or they are legal
principles limiting their decisions there where a case does not fall under a specific
rule?
13. According to Dworkin approach Has legal obligation something to do with moral
obligation? Justify.
14. Dworkin writes: “Most rules of law, according to Hart, are valid because some
competent institutions enacted them. Some were created by a legislature, in the
form of statutory enactments. Others were created by judges who decide
particular cases, and thus established them formulated them to as precedents for
the future. But this test of pedigree will not work for the Riggs and Henningsen
principles. The origin of these as legal principles lies not in a particular decision of
some legislature or court, developed in the profession and the but in a sense of
appropriateness public over time. Their continued power depends upon this
sense of appropriateness being sustained. If it no longer seemed unfair to allow
people to profit by their wrongs, or fair to place special burdens upon oligopolies
that manufacture potentially dangerous machines, a role in new cases, these
principles would no longer play much of even if they had never been overruled or
repealed. (Indeed, it hardly as being "overruled" or makes sense to speak of
principles like these "repealed." When they decline they are eroded, not
torpedoed.)” [page 41 The Model of rules] Read the subsequent paragraphs and
answer: What is the difference between Hart’s approach to the identification of
the content of Law (Notice: the rule of recognition is here involved) and
 Dworkin’s. According to Dworkin: is it a clear cut distinction between legal norms
and other social norms? Justify.
15. Dworkin writes: “I conclude that if we treat principles as law we must reject the
positivists' first tenet, that the law of a community is distinguished from other
social standards by some test in the form of a master rule. We have already
decided that we must then abandon the second tenet -the doctrine of judicial
discretion--or clarify it into triviality. What of the third tenet, the positivists' theory
of legal obligation?” [page 45] How does Dworkin answer this question? Relate to
answer in question 11.