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Complete Summary - E-thics (RGBRF50105)
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Complete summary of E-thics, LLB Technology law track, University of Groningen. Includes lecture, readings, and answered questions.
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Week 1 Readings:Frederick Schauer, Thinking like a Lawyer:
Thinking like a lawyer: training in the arts of legal argument, legal decision-making, and
legal reasoning.
>Is there a form of reasoning that is distinctively legal reasoning?
Lord Coke-1628: an “artificial” reason to law- distinction between simple rationality and
the special methods of the law, and particularly of judges.
Jeremy Bentham-19th century: sceptical/deflationary accounts of legal reasoning
>The claim that there is such a thing as legal reasoning is a hypothesis that lawyers have
ways of approaching problems and making decisions that others do not.
Murphy:
- Law cannot be seen as a closed system: not all of the moves in legal argument and
legal decision-making can be found in the rules of law
- Law’s characteristic methods of reasoning are not completely unique to law (e.g.,
making arguments+decisions based on the dictates of written-down rules,
precedent, authority-based reasoning).
- Every one of the dominant characteristics of legal reasoning and legal argument can
be seen as a route toward reaching a decision other than the best
all-thing-considered decision for the matter at hand (e.g., following precedent leads
to often dictated outcomes different than those the decision-maker would otherwise
have chosen).
- Law’s seemingly counterintuitive methods are a function of law’s inherent
generality. Law’s goal is to make sure that the outcome for all or at least most of the
particulars in a given category is the right one (not simply the best outcome in a
particularistic and contextual way)
>Lord Coke: better to reach the wrong result in a particular controversy, rather than adopt
a rule which would produce the correct result for this case but the wrong result in many
others. Similar notion to the Socratic inquiry.
>Appellate judges are often concerned as much with the effect of their immediate ruling on
future cases as with reaching the best result in the present case.
>Traditionally, the Rule of Law was a principle that was wary of individual judgement and
reluctant to rely too heavily on the unguided judgements and whims of particular people.
>The existence of “legal reasoning” is an empirical claim.
,Mark C. Murphy, Philosophy of Law:
What is Law?
Law is a concept that is deployed in explaining behaviour, justifying action, and in
self-understanding.
Philosophers of law- two sources:
1. Commonplaces about a subject matter: when one offers an analysis of a concept, it
should be faithful to, and in some way incorporate and organise, our commonplaces
about that subject matter.
2. Set of clear cases associated with a certain concept: instances to which a concept
clearly does, or clearly does not, apply. Can be used to shape and test analyses.
> There must be something more to the analysis of knowledge besides justified, true
belief-the truth of belief must not be merely lucky or accidental.
In law practice:
1. Commonplaces about law (eg. regarding sociality, authority, and orientation
to the common good)
2. Cases that we recognize as clear instances of legal systems and individual
laws or clear noninstances of legal systems and individual laws.
Roger Brownsword, Law 3.0. Rules, Regulation and Technology:
Law 3.0:
1) Legal rules need to be updated and revised so that they are fit to serve their
intended purposes or policies
2) The supervisory and enforcement agencies – need to be sustained and upgraded so
that the rules are fit for purpose
3) We should also seek out possible technical solutions
Area of problematic online content- proposed strategy of government:
1. The legal rules need to be rendered fit for purpose in the digital age
2. Effective technical measures should be explored, the aspiration being to make
technology itself a part of the solution.
> Law 3.0, as a distinctive conversation, coexists with Law 1.0 and Law 2.0.
Law 1.0: the application of rules,standards, and general principles to particular fact
situations.
,Law 2.0:
- The form of reasoning is policy-directed and instrumental.
- a matter of articulating new rules and regulatory frameworks that directly serve the
purposes which governments now adopt
- The centre of gravity of law shifts from the courts and historic codes to the political
arena where governments operate through the executive and the legislative
assemblies.
Law 3.0- regulatory mindset:
Characterised by a sustained focus on the potential use of a range of technological
instruments the density, sophistication, and variety of which distinguish our circumstances,
quantitatively and qualitatively, from those of both pre-industrial and early industrial
societies.
Proposal of Law 3.0:
Think of a set of tools that can be employed for regulatory purposes.
While some of these tools (such as legal rules) are normative: always speak to what ‘ought’
to be
done, others are non-normative:speak only to what ‘can’ and ‘cannot’ be done.
Powerpoint:
Three questions:
Question 1:
› What is law?
› An open system of rules and principles? (Schauer)
› Written or also unwritten?
›Only rules of the state or also social rules, custom?
›Concept of law has changed
›Four concepts: Law 0.0, 1.0, 2.0 and 3.0 (Brownsword)
› What are the functions of law?
›Regulation of behaviour? Ensuring safety and peace by the government? Protecting
citizens against the government?
›Depends in part on concept of law.
Question 2a:
What is ‘thinking like a lawyer’? Why are the techniques of reasoning distinctive of legal
decision-making?
› Other than e.g. policy makers and public decision makers
, › Law 1.0:
› Reasoning with general rules which are relatively precise; which address behaviour;
which stem from an authoritative source and which need not result in best
‘all-things-considered’ decision.
Question 2 b:
› Have these techniques changed over the last 75 years?
› Law 2.0: policy oriented reasoning with rules, that are much more open, many about
goals instead of behaviour, authority of source disputed
› Law 3.0: not merely the regulation of new techniques, but use of
techniques/architecture to regulate behaviour.
Question 3:
› 3. What is the relation between law and morality?
• a. What is the relation between state law and custom?
• b. What is the relation between law as it is and law as it morally should be?
• Is (very) unjust law nevertheless law?
› 3b Are there (objective) criteria to assess the moral quality of law? Or is it merely a
matter of personal opinion or feelings?
• 1 What are the moral boundaries of state interference?
• 2 How can state punishment be morally justified?
What philosophy is not: Legal dogmatics & empirical legal sciences
› Unlike legal dogmatics, philosophy does not take the ‘internal view’ of what legal
scholars, lawyers and judges think they are doing for granted. And it does not treat
sources as ‘authoritative’
› Unlike the empirical sciences, philosophy does not look for ‘deeper reality’
• E.g. for human biases and prejudices or physical causes such as fatigue or food (Jerome
Frank: ‘what the judge ate for breakfast’) as ‘underlying or deeper causes’ of legal
reasoning
› 1. Is a ‘broadly cognitive’ enterprise: it does not aim at mere knowledge of facts but
more broadly at understanding
› 2. Is essentially ‘self-reflexive’: understanding the nature of human beings as reasoning,
argumentative and self reflexive creatures
› 3. Central task: explication and rational critique of concepts that both shape and
restrain our thinking
• Philosophy does not focus on ‘facts’ and on truth and falsity, but on the concepts that we
use to describe facts
› Concepts are tools:
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