Kramer-Simmonds debate

Wednesday, 11 September 2019

1:11 PM
Morality of duty - whether there is law?
Morality of aspiration - how good is the law?

If the ultimate purpose is bad, we cannot stick to the 8 deciderata.

Respect is the essence of the idea of morality. If a state wants to claim that it is moral, it must treat
people with respect. State should only ensure procedural compliance --> then, we have law + morally
good law

State should not impose any idea of good life on the people
E.g. Hitler's regime - must not impose what is good for the people such as laws against
homosexuality --> state should not tell them what behaviour is acceptable and permitted and what is
good for them and what not --> implies that state does not consider the other person intelligent
enough to decide for themselves thus making all the decisions for them --> NOT giving respect

A commitment to the view that man is, or can become, a responsible agent, capable of
understanding and following rules and be held liable for his defaults.
E.g. we do not follow the 8d with a child as they are not intelligent enough

Statements:
1. Does India have a law on dowry?
2. Does India have rule of law?

Does the meaning of law change in the second statement? - we will not look at one particular statute
but certain principles such as
● Equality
● Absence of arbitrariness
● Due procedure
● Natural justice principles

For the 1st question, we will look at a particular statute and which legislature made it. We will be
looking for some individual norm.

Say, there is a statute but it is not being followed by the people (not effective) - will that mean there
is no rule of law? --> NO
We do not talk about some particular statute when talking about rule of law (we look at certain
principles only)

Fuller says that rule of law means a morally good thing - ensuring respect for and freedom of citizens

Is fuller correct to say that the 8d ensure morality? Will evil regimes have good reason to follow rule
of law?

RULE OF LAW ABSENCE OF RULE OF LAW

● Generality ● Wide discretionary power
● Promulgation ● Extra judicial arrests
● Prospectivity ● Extra legal beatings
● Clarity ● Excessive punishment
● Absence of contradiction ● Excessive curtailment of liberty
● Possibility of compliance ● Insecurity of property
● Constancy through time ● No recourse to constitutional remedies
● Congruence b/w law and official rules and action

If the right side is not there, means that 8d must be there.

Or
The 8d ensure that the absence signs are not there

But, can they exist simultaneously? Is fuller right or wrong?

Led to the Kramer-Simmonds debate

Kramer - says both can co-exist

Simmonds - says that the absence signs cannot co-exist with the 8d (supports Fuller)

Instances of absence - may indicate purpose of regime

Fuller says that if external morality is bad, there cannot be internal morality --> these cannot co-exist
simultaneously

Absence of rule of law should have an impact or adverse effect on the lives of people.
What 'bad' things may be done while following rule of law?

A single violation does not amount to absence of ROL.

Kramer -
● ROL gives no autonomy/ self determination gives the example of a gunman to prove his point.
The banker with gun on his head has the option to follow or not - ROL conditions are satisfied -
therefore, he is treated with respect and autonomy is still there theoretically. Rules known in
advance - people can plan their lives accordingly as they are intelligent. There are options but
the manner is bad - consequences are bad and proactively there is no autonomy - thus 8d are
not enough to prove that there is ROL.
● Whenever an act is done, there could be 2 reasons for doing it -
o Purely moral reason
o Prudential reason

Morality - respect
If the reason for doing the act was self-interest, then the reason is prudential.
E.g. if you quite smoking due to health or expenses, you are quitting for prudential reasons but a
moral reason would be to protect children and their health from the smoke

For a bad regime, it is in their own interest to satisfy the 8d - will serve them even better to follow
them
1. Will be able to give clear cut directions to the citizens - can control better
2. To foster incentives for obedience
3. Enable officials to co-ordinate their activities

A regime would want maximum obedience from people by telling them in advance what they can
and cannot do.

Kramer says that 8d are morally neutral

Probability theory - officials in repressive/ exploitative regimes have solid prudential reasons to abide
by rule of law
Extra judicial beatings would disincentivize people from following law. If people are frequently
punished even when they have obeyed the law, their incentive to comply with the law is markedly
sapped.
● Internal morality
● 8 deciderata
● Procedural and not substantive law
● Moral status of rule of law
● Fuller - rule of law ensures freedom i.e. ROL is compromised if freedom is taken away from the
state
KRAMER
Does rule of No.
law ensure It is possible that a given regime,
freedom or otherwise oppressive, may be
autonomy? following rule of law conditions but
the real choices with people are very
less - people are not really free.
Real freedom is when law in
substance allows people to have more
choices.
Procedural morality is not sufficient to
ensure freedom for people - we need
to have substantive morality
● Gunman giving options to the
bank teller to either give him
the money or die - follows 8
deciderata but is that freedom?
- free to choose any of the two
choices but both are not
acceptable
● state's job is not over when they
follow 8 deciderata
● For kramer, freedom means
having more choices - if we have
more freedom, state is morally
good and if less, state is not
morally good
Mere procedural safeguards are not
enough to free us from the arbitrary
control of others - we need to have
substantive law
SIMMONDS (DEFENDING FULLER -
COUNTER TO KRAMER)
Yes.
● Slave owner has given a lot of choices
to the slave - freedom of movement,
choices etc. - there is a wide range of
options for the slave who can do
whatever he wants to - will we conclude
that the slave is free or that the slave is
NOT UNFREE even though the relations
is of slave-master. - the essence of
slavery is arbitrariness and freedoms
can be taken away - the slave will never
be free of the arbitrary control of the
master - if he gives the freedom he can
also take it away
● Number of choices does not mean
freedom - it actually comes from
absence of arbitrariness
● Rule of law mechanism will cut down
arbitrariness by the state and
unnecessary liberties of citizens - no
excessive liberties or powers - essence
of liberties is to have this balance -
extremes are harmful for the whole
society
● Freedom does not mean jungle law
where there is no limit on what a
person can do
● Rule of law frees people from the
arbitrary control by state but it limits
the range of activities they can do
Assumption: 8 deciderata or the rule of
law is sufficient to counter arbitrariness
Whether bad Yes.
or evil The result is that rule of law becomes
regimes have a morally neutral idea - it is usable for
any reason to good and bad regimes - does not
follow rule of mean It is a morally good thing as
law? anyone can use it - depends on who is
using it and how it is being used
● Even an evil regime would want
to give clear directions to
citizens by following rule of law
(8d)
● It ensures obedience - if they
know what is to be done, they
will do it
● Co-ordination among the top
officers and organizations is
made easy
● Rule of law is serviceable for
good and bad regimes
Does rule of Yes.
law foster Reasoning based upon theory of
incentive to probability - punishment regardless of
comply with following or not following the law will
law?/ reduce incentive to follow or comply
Will the evil with the law - it will be in the evil
regimes have regime's interest to not follow the rule
good reason of law as people will feel less inclined
to conform to follow the law if they will get
with rule of punished regardless.
law?
Evil regimes would want to keep
incentive to follow law high - thus
they have good reason to follow rule
of law through the 8 deciderata.
No.
Evil regime would want to have obedience
and compliance - but an evil regime will
always have dissenters - there will not be
100% compliance by all people - if a group
of people does not follow the directions,
(following in letter but not spirit e.g.
saluting with a limp hand shows lack of
respect - if the regime wants to stick to
ROL, they will have to define salute and
amend the law - next time, the saluters
smirk and make fun of the officers while
doing so - to continue ROL, they will have
to re-define - THERE CAN ALWAYS BE
SUBTLE EVATIONS OF LAW - THERE ARE
INFINITE WAYS OF FOLLOWING THE LAW
IN LETTER BUT NOT IN SPIRIT)
● So for how long will they continue
with ROL - continued amendments
gives a bad impression that they
cannot control their populace
● Continued changes - shows panic
and weakness
A better alternative for the regime is -
whenever there is a parade, you salute.
Next time there is a parade, extra judicial
beating must be given in full public view -
then everyone will be saluting properly
Thus, deviation from ROL is better suited
for evil regimes - they can show strength
by bypassing ROL. Thy do not have
sufficient reasons to follow rule of law.
No.
People will follow the law as the chance of
punishment is less if the law is followed by
them. Illegitimate will not save them from
legitimate - the people would want to save
themselves from the legitimate
punishment which has a higher chance of
happening even if they cant save
themselves from illegitimate punishment.
Everyone will not be punished
extra-judicially but the probability of
punishment for breaking the law is much
higher than for not breaking the law
(90-40 example) - these are two parallel
systems of punishment
 1. Through the process of law
2. Bypassing the process of law
Extra judicial punishment does not
de-incentivize a person from following the
law.

Respect for citizens is moral - when state respects people, it is moral

Respect = more choices so they can make a coherent plan - conception of human being who is a
rational autonomous human being who is treated with respect.
Animals are directed as to what they can and cannot do - but human beings are viewed differently - a
state that does not view animals and humans differently is not respecting humans

Classic def of freedom by Rousseau - I govern and give law to myself

CA 3 SYLLABUS
● Natural law - radbruch, fuller
● Kramer-Simmonds debate
● Mod 4 - reading 1,2, chap 2 of fuller book (reading 3),
● Module 6 - reading 13,14,15
● Reading 6 - law as a moral idea

SIMMONDS THEORY
● Extension to fuller's idea of 8d - more the compliance, better the system

1. Archetypal concept
There are approximations possible - e.g. understanding of a triangle - it does not
necessarily consist of 3 straight lines with sharp vertices - something can be almost
triangular
2. Class concept
Something is falling in or outside the 'class'. E.g. the word bachelor is a class concept
(there is no 'approximate') either it is in the category or not in the category
(bachelor/not bachelor NOT almost bachelor)

Simmonds says that law is an archetypal concept while positivists understand it as a class concept -
they rely on the idea of some identifiable source where law comes from - anything coming from any
other source is not law at all - we can clearly say whether something is law or is not law on the basis
of origin. When we understand law as an archetypal concept, there is some law or legal system is
ideal but something lesser is still a legal system unless sit completely falls of the scale or conditions
are being blatantly violated.

Evil regimes may be satisfying the threshold conditions but they may not be wishing to approximate
the idea of the ideal system. - all legal systems are not the same in quality.

Hitler's regime - barely passes the threshold

Brunei - satisfies the conditions - it is a legal system but not an ideal legal system or even a good legal
system