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Weeks 1-7 LJM Exam Summary
Entire summary of the course without in-depth answers to the tutorial/practice exam questions.
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10Week 1: The Speluncean Explorers, Radbruch and Hart
The Speluncean Case
This story presents a complex legal and moral dilemma that revolves around a group of explorers who became trapped in a cave while on an expedition.
The explorers found themselves stuck without food and with limited resources. As time passed and their situation became more desperate, they realised
that death was likely if they didn’t resort to extreme measures. With seemingly no other option, the explorers decided to draw lots, and one of them was
sacrificed to provide sustenance for the others. Eventually, they were rescued and subsequently charged with murder of the person they sacrificed to
survive. The case was brought to court, and the central question became whether the explorers were guilty of murder or whether their actions could be
justified under the circumstances of their extreme and dire situation.
Each judge below represents a distinct legal philosophy, which helps to dissect the complexities of law, morality, and justice.
The Judges
Judge Foster (Natural Law)
Opinion: Judge Foster argues from the perspective of natural law. His argument is as follows: in the state of nature created by the situation at hand,
normal laws are inapplicable; a new social contract is created. Moreover, in this situation, the purpose of law (i.e., deterrence) cannot be achieved. In this
way, he finds that there is an universal, justice-oriented law that overrules written law and that this kind of law should be applied by judges in certain cases.
Additionally, departing from his opinion, it can be argued that unjust law is not law and that retrospective judging can be allowed in exceptional
circumstances.
Weaknesses: There is ambiguity surrounding the concept of a ‘universal law’, which is a law that applies to everyone, everywhere. It’s unclear what
constitutes such a law and who has the authority to establish it. Secondly, the statement highlights the issue of ‘relativity of legislation’. This means that
laws can vary greatly depending on various factors such as the country, culture, or time period, leading to inconsistencies and challenges in establishing
uniform legal standards. Lastly, the principle of ‘legal certainty’ is brought into question. Legal certainty implies that laws should be clear and predictable,
allowing individuals to understand the legal consequences of their actions. However, this principle is undermined when new laws or interpretations are
applied retrospectively to past actions, making the legal outcomes unpredictable and unclear.
Judge Keen (Legal Positivism)
Opinion: Judge Keen represents legal positivism. He finds that the task of judges is to simply apply the law. Judges should not change nor create laws,
since that is the task of the legislators. The most important values to him are legal certainty, the rule of law, and trias politica. From his opinion, it can be
derived that law is separated from morality and that formality and procedure are necessary for the well-functioning of law.
Weaknesses: In the given argument, there is no room for a law that is fundamentally unjust. This implies a belief in the inherent fairness of laws. Secondly,
it acknowledges the challenges in the application of law. It suggests that a completely pure application of law by judges is unattainable due to the inevitable
influence of interpretation and the human factor. This means that judges, being human, will invariably bring their own perspectives, biases, and
interpretations to their judgments, which can introduce a degree of subjectivity into the legal process. This subjectivity, while unavoidable, can complicate
the pursuit of absolute justice.
Judge Handy (‘Law Is What Judges Do’)
Opinion: The opinion of Judge Handy can be summed up by saying “law is what judges do”. He views law in light of its instrumental aspects:
achieving good societal goals, justice, etc. He claims public and personal opinions are relevant for legal justice. In this way, abstract legalism is irrelevant.
Non-legal factors also play a significant role; law that is unaccepted by society is not law.
Weaknesses: The principle of legal certainty is often compromised, particularly when considering the perspective that “law is what judges do”. This
viewpoint suggests that the law is not a fixed entity, but rather, it is subject to the interpretations and decisions of judges. This can lead to a degree of
uncertainty, as justice and societal goals are relative concepts that can be flexible and vary based on context. Furthermore, public opinion, which is
frequently changeable and sometimes unjust, is not always a reliable foundation for legal judgements. Basing legal decisions on such volatile public opinion
can further undermine legal certainty. Therefore, it is argued that the courts should not merely reflect public opinion, but rather, they have a duty to
protect against it. This is to ensure that justice is served based on legal principles and facts, rather than being influenced by the fluctuating tides of public
sentiment.
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The Puttfarken Case (Retroactive Punishment)
Retroactive Punishment
Retroactive punishment, also known as an ex post facto law, refers to a law that retroactively changes the legal consequences of actions that were
committed before the enactment of the law. This can take several forms:
1. It may criminalise actions that were legal when committed.
2. It may aggravate a crime by bringing it into a more severe category than it was in when it was committed.
3. It may change the punishment prescribed for a crime, such as by adding new penalties or extending sentences.
4. It may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.
In many jurisdictions, ex post facto laws are considered unconstitutional or are strictly limited to prevent misuse. The principle against retroactive criminal
laws is recognized in most developed legal systems, reflected in the civil law maxim “nulla poena sine lege” (no punishment without law).
IRAC Method
Issue
The issue at hand is whether retroactive punishment can be applied and justified in cases where unjust laws, specifically those enacted under the Nazi
regime, have led to crimes against humanity and murder.
Rule
The rule governing this issue is derived from international treaties and national laws concerning crimes against humanity and murder. Additionally, the
legal theory proposed by German jurist Gustav Radbruch, known as Radbruch’s Formula, is also relevant. This theory suggests that in certain cases, the
requirements of natural justice supersede those of legal certainty.
Application
In the Puttfarken Case, it was argued that the Nazi legal system was not a valid and legitimate legal system. Puttfarken had informed on Göttig for an act
that led to Göttig’s conviction and execution by the Nazi courts. It was argued that in doing so, Puttfarken had given Göttig up to the arbitrary power of
the Nazi courts, which were not operating under a valid legal system. As such, both Puttfarken and the courts that passed the sentence were considered
guilty of murder.
Conclusion
The conclusion drawn from this case was that retroactive punishment can indeed be applied and is justified. This decision was influenced by Radbruch’s
Formula, which was used to argue that statutory law could not, in and of itself, guarantee the moral validity of law. For a law to be morally valid, it must be
tested by certain supra-statutory conditions, otherwise, positivism alone could lead to morally unacceptable judgments. Therefore, the Puttfarken Case
serves as a precedent for the application of retroactive punishment in cases where laws enacted under an unjust regime led to crimes against humanity. It
underscores the importance of upholding justice and human rights, even when it requires challenging the validity of past legal systems and judgments.
H.L.A. Hart (Legal Positivism)
Definition of Legal Positivism
Legal Positivism: This is a philosophy of law that believes the laws are simply rules made by human beings. There is no necessary connection between law
and morality. In other words, a law can be unjust but still be a law.
H.L.A. Hart (Primary/Secondary Rules, The Rule of Recognition)
H.L.A. Hart made significant contributions to the tradition of legal positivism such as the internal point of view, the distinction between primary and
secondary rules, and the idea of a rule of recognition. Hart also clarified the meaning of and reasons behind the separability of law and morality.
Primary Rules: These are the basic laws that govern our actions. They tell us what we can and cannot do. For example, traffic rules are primary rules.
They tell us when we can go, when we need to stop, how fast we can drive, etc. If we break these rules, there may be consequences like fines or penalties.
Secondary Rules: These are rules about the rules. They don’t directly tell us what to do or not to do, but they govern how primary rules work. Here are
three types of secondary rules:
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1. Rule of Change: This rule allows primary rules to be created, altered, or abolished. For example, a legislative body like a parliament or
congress uses the rule of change to enact new laws or amend existing ones.
2. Rule of Recognition: This rule helps us identify what is a valid rule and what isn’t. It sets the criteria for legal validity and provides a way to
identify whether a rule is a part of the legal system. For example, in many societies, if a law is passed by the government and written down, it’s
recognized as a law.
3. Rule of Adjudication: This rule provides a way to resolve disputes about the primary rules. It sets up courts and appoints judges who can
interpret the rules and decide cases.
Hart’s theory of legal positivism asserts that laws are rules made by humans and that there is no inherent or necessary connection between law and
morality. This perspective is encapsulated in the phrase “unjust law is law”. It implies that a law, regardless of its degree of injustice, possesses essential legal
characteristics that should not be overlooked. However, Hart acknowledged that some laws could be too unjust to apply.
Hart’s argument rests on the principle of “nulla poena sine lege” (no punishment without law). He proposed that legal principles should be violated for
the greater good to prevail, but only in very exceptional cases. One such case was Puttfarken, where a justice department clerk named Puttfarken was
sentenced to life imprisonment for having brought about the conviction/execution of Göttig . Puttfarken had informed on Göttig for writing "Hitler is a
mass murderer and to blame for the war". In such exceptional cases, Hart argued that it must be explicitly written down that the principles are violated.
This approach protects legal certainty and does not disregard the important legal traits of such unjust law.
Gustav Radbruch (Natural Law)
Definition of Natural Law
Natural Law is a philosophical concept that suggests there are laws inherent to human nature and can be understood through reason. It’s a system of law
based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive
law (the express enacted laws of a state or society). According to this theory, all people have inherent rights, conferred not by an act of legislation but by
"God, nature, or reason".
The phrase “unjust law is not law” (lex iniusta non est lex) is an expression in support of natural law. It acknowledges that authority is not legitimate unless
it is good and right. The idea behind this phrase is that if a law is unjust (not fair or morally right), then it should not be considered a law at all. This is
because, according to natural law theory, laws should be inherently just, reflecting the moral and ethical standards of human nature. Therefore, an unjust
law would not be in harmony with the moral law or the law of God.
Gustav Radbruch (Statutory Lawlessness and Supra-Statutory Law)
In Radbruch’s view, unjust law is not law. Radbruch argues that justice is a prerequisite of law and that equality is the core of justice. The meaning of law
and the purpose of judges are to serve justice. He agrees that legal certainty is a necessary component for law, but if they are in contrast, equality and justice
prevail.
Statutory Lawlessness (Gesetzliches Unrecht): Radbruch argued that statutory law could lose its validity when it becomes excessively unjust and
contradicts fundamental principles of morality and justice. When laws violate basic human rights or moral principles to an extreme degree, Radbruch
proposed that they should be deemed null and void. The legitimacy of the law, according to Radbruch, depends on its alignment with fundamental
principles of justice and morality. This concept responds directly to instances of gross injustice where statutory law contradicts fundamental human rights
or morality.
Supra-Statutory Law (Übergesetzliches Recht): In contrast to statutory lawlessness, Radbruch introduced the concept of Supra-Statutory Law,
representing principles or norms that transcend written laws. These principles are not codified in positive law but are recognised as higher or superior to
statutory law. Radbruch argues that judges, when faced with a conflict between positive law and higher moral or ethical principles, should be guided by
Supra-Statutory Law. This concept emphasises the importance of ethical and moral values beyond written laws.
The Radbruch Formula
Radbruch Formula: Retroactive punishment is only justifiable in cases when justice is deliberately betrayed. Otherwise, in all other situations, legal
certainty prevails.
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Week 2: Utilitarianism and Freedom of Speech
The Doctrine of Duty
The Doctrine of Duty is a complex concept with roots in various philosophical theories. It’s not attributed to a single philosopher but is a culmination of
ideas from different philosophies.
Duty vs. Consequentialism (How It Relates To Utilitarianism)
Duty is often associated with the idea of a duty of care, which is a legal obligation imposed on an individual, requiring adherence to a standard of
reasonable care to avoid careless acts that could foreseeably harm others.
Consequentialism, on the other hand, is a class of normative, teleological ethical theories that holds that the consequences of one’s conduct are the
ultimate basis for judgement about the rightness or wrongness of that conduct.
Utilitarianism is a specific form of consequentialism, developed by the philosophers Jeremy Bentham and John Stuart Mill. Utilitarianism asserts that an
action is right if it tends to promote happiness or pleasure and wrong if it tends to produce unhappiness or pain—not just for the performer of the action
but also for everyone else affected by it. In the context of the Doctrine of Duty, these theories intertwine. If something is intrinsically valuable (as per
utilitarianism), one has the duty (as per the doctrine of duty) to maximise it, considering the overall consequences (as per consequentialism). This interplay
forms the basis of the Doctrine of Duty.
Jeremy Bentham (With Counter-Arguments)
Bentham’s Definition of Utilitarianism
Jeremy Bentham, an English philosopher and social reformer, is often regarded as the founder of modern utilitarianism. Utilitarianism is a moral theory
that argues that actions should be judged right or wrong to the extent they increase or decrease human well-being or 'utility’.
Bentham sees happiness, or ‘utilitas’, as intrinsically valuable and the ultimate goal of all human actions. This belief stems from his hedonistic perspective,
where all behaviour is motivated by the pursuit of pleasure and avoidance of pain. Happiness is directly experienced by the individual as valuable, and its
normative value needs no additional justification.
The Utility Principle and the Felicific/Hedonistic Calculus
Utility Principle: Bentham formulates the utility principle, asserting that the moral action is one that maximises happiness for the greatest number. He
includes principles of equality, emphasising that everybody’s happiness should count equally. This principle is often summarised as "the greatest happiness
for the greatest number". Bentham introduces the principle of the "greatest happiness principle," which suggests that individuals and legislators should aim
to maximise happiness for the greatest number of people.
Felicific Calculus: Bentham emphasises the quantifiability of pleasure and pain, proposing a utilitarian calculus known as the "felicific calculus”. This
calculus attempts to measure the intensity, duration, certainty, propinquity, fecundity, purity, and extent of pleasure or pain caused by an action to
determine its moral worth.
Hedonistic Calculus: Bentham also discusses the idea of “hedonistic calculus”, which measures pleasure and pain in terms of their intensity and duration.
He argues that the pursuit of pleasure and the avoidance of pain are the driving forces behind human behaviour, and therefore, these elements should
guide ethical decision-making.
Mill’s Take on Bentham’s Utility
John Stuart Mill, a prominent British philosopher and political economist, refined the concept of utilitarianism, originally proposed by Jeremy Bentham.
Mill’s utilitarianism focuses more on general happiness and distinguishes between different types of pleasures. He argues that pleasures derived from
intellectual, moral, and emotional faculties (e.g., reading a difficult book) are more valuable and have a higher utility value than mere physical or sensual
pleasures (e.g., watching TV). This leads to a qualitative distinction between pleasures.
Mill broadens the concept of utility to include not just the promotion of happiness, but also the prevention of unhappiness. He introduces the idea that
choosing personal unhappiness can lead to happiness in others, as seen in the case of martyrs. In his view, the motive of an action is separate from the
morality of the action, meaning that intentions are irrelevant. He also contends that a small evil can be justified for the greater good.
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