Jurisprudence 315 University of Miami School of Law

II. Where does one find the Law?

3. Humans

2. The Problem of "Evil Legal Systems"

Nuremburg

In Hart's terms, what was the rule of recognition used by the International Military Tribunal?

When the defendants pleaded that it is "a fundamental principle of all law -- international and domestic -- that there can be no punishment of crime without a pre-existing law," what rule of recognition were they using?

Given that Hart's view of the formation of a rule depends upon there being an "internal aspect" among [some members of] a group, it may be very relevant to enquire who makes up the relevant group. Could it be that the prosecution and the defense were relying on different groups?

Given the positivistic definition of law as the commands of the sovereign, is there anything wrong with "just following orders"?

General questions for all the readings in this section

What is Hart's view of the relationship between "law" and "morality": are they the same? Different?

What duty would Hart say a person owes to an evil legal system? What duty would a positivist say one owes to an evil legal system?

What is the "rule of recognition" for identifying an "evil legal system"?

Dworkin

[From "Judicial Obligation and the Rule of Law"]

Consider the questions listed above, and also:

What is Dworkin's view of the relationship between "law" and "morality": are they the same? Different?

What is Dworkin's critique of Hart's "rule of recognition"?

Is Dworkin's suggestion that judges don't simply appeal to rules in deciding cases but that they also use "principles" (i.e. morality?) anything more than a more complicated rule of recognition? Or is it so encompassing as to say "judges do what they like"?

Clearly, Dworkin thinks his vision is something other than "judges do what they like" since he claims that hard cases only have one right answer based on "the soundest theory of the law". What does he mean by this?

What duty would Dworkin say a person owes to an evil legal system? Are you persuaded that Dworkin's vision avoids the danger of "obsequious quietism" (materials p. 183)?

Return to Jurisprudence homepage