Monday, May 19, 2014

SEGMENT 1 OF VIDEOBLOGS

For this first blog, team 4 will be discussing the laws that were around during the time of Martin Luther King Jr. Specifically laws that promoted equality and removed any form of segregation from existence. A very important act that resonated during the time of Martin Luther King Jr., was the Civil Rights Act of 1964. This Act prohibits discrimination against sex, race, religion, and national origin. The passing of this act ended the harsh Jim Crow laws which were basically racial segregation laws. Employees are protected against this act in regards to sex, race, religion, and national origin. They are also protected against retaliation against their employers for acting against them if they were to file a discrimination complaint based on those topics.

 My other actually video was posted on dropbox in the video sections.
For this first blog, team 4 will be discussing the laws that were around during the time of Martin Luther King Jr. Specifically laws that promoted equality and removed any form of segregation from existence. A very important act that resonated during the time of Martin Luther King Jr., was the Civil Rights Act of 1964. This Act prohibits discrimination against sex, race, religion, and national origin. The passing of this act ended the harsh Jim Crow laws which were basically racial segregation laws. Employees are protected against this act in regards to sex, race, religion, and national origin. They are also protected against retaliation against their employers for acting against them if they were to file a discrimination complaint based on those topics.

 My other actually video was posted on dropbox in the video sections.

Monday, May 12, 2014

My name is Ronald Dworkin- Final Paper


Gennaris Zughbi
Professor Thompson
Final Paper
“I am Ronald Drowkin”
    Hello my name is Ronald Dworkin and I am a scholar of constitutional law and a very well known American Philosopher. I have been a professor at some of the top schools in the world such as Oxford University and Yale Law School. In 2007, I received the international Memorial prize of Humanities for my pioneering scholarly work of worldwide impact. I would say I’m a very influential contributor to both political philosophy and philosophy of law. The Journal of legal studies survey considered me to be the second most cited American legal scholar of the 20th century.
My theory of the law, in which judges understand the law in terms of consistent and shared moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law. I supported a moral reading of the US Constition, and interprvitist approach to law and morality. I’m a frequent commentator on contemporary political and legal issues, particularly those concerning the US Supreme Court.
      I’m sure you are also interested knowing more of my early life and education before I became one of the most cited American legal scholars of the twentieth century so here’s a little information. I was born in 1931 in the small town of Providence, Rhode Island in the United States, and the son of Madeline Talamo and David Dworkin. I studied at Magdelen College and at Harvard University, and Oxford was where I was a Rhodes Scholar. After I completed my final year's exams at Oxford, the examiners were so fascinated with my script that the Chair of Jurisprudence was summoned to read it. Then I attended law school at Harvard and subsequently clerked for Judge Hand of the 2nd circuit US Court of Appeals. Judge Hand would later called me the finest clerk he ever employed (specifically), "the law clerk to beat all law clerks" and I would recall Judge Hand as an enormously influential mentor.
      I would say I’m most famous for my critique of the legal positivism of Harts. I sets forth the fullest statement of his critique in his book Law's Empire. My theory is intepretive; the law is whatever follows from a constructive interpretation of the institutional history of the legal system. I argue that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one's principles are skewed enough. To discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. All interpretation must follow, I argue, from the notion of law of integrity to make sense. Out of the idea that law is 'interpretive' in this way, I argued that in every situation where people's legal rights are controversial, the best interpretation involves the right answer thesis. I oppose the notion that judges have discretion in such difficult cases.
    My model of legal principles is also connected with Hart's notion of the rules of recognition. I reject Hart's conception of a master rule in every legal system that identifies valid laws, on the basis that this would entail that the process of identifying law must be uncontroversial, whereas (I argue) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute. While I move away from positivisms separation of law and morality, my concept suggests that the two are related in an epestimic rather than ontological sense as posited by traditional natural law. 
“Positivism's most significant critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.”
     Suppose the legislature has passed a statute stipulating "sacrilegious contracts shall henceforth be invalid." The community is divided as to whether a contract signed on Sunday is, for that reason alone, sacrilegious. It is known that very few of the legislators had that question in mind when they voted, and that they are now equally divided on the question of whether it should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to enforce the terms of the contract, whose validity Tim contests. Shall we say that the judge must look for the right answer to the question of whether Tom's contract is valid, even though the community is deeply divided about what the right answer is? Or is it more realistic to say that there simply is no right answer to the question?
     I’d have to say one of my most interesting and controversial theses states that the law as properly interpreted will give an answer. This is not to say that everyone will have the same answer (a consensus of what is "right"), or if it did, the answer would not be justified exactly in the same way for every person; rather it means that there will be a necessary answer for each individual if he applies himself correctly to the legal question. For the correct method is that encapsulated by the metaphor of Judge Hercules. This metaphor of Judge Hercules, an ideal judge, immensely wise and with full knowledge of legal sources. Hercules (the name comes from a classical mythological hero) would also have plenty of time to decide. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, I argue, would always come to the one right answer.
    But here’s the thing, I don’t deny that competent lawyers often disagree on what is the solution to a given case. On the contrary, I actually claim that they are disagreeing about the right answer to the case, the answer Hercules would give.
     My critics argue not only that law proper (that is, the legal sources in a positivist sense) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable. In any of these situations, even Hercules would be in a dilemma and none of the possible answers would be the right one.
    I defend my position saying that non-Herculean judges, much like everyday people, find their way and choose between options and values that were supposed to be incommensurable. I also argue that it is always possible to find out other rules or principles to solve the conflict between those we had in mind. The same counter-argument, however, regarding principles and moral standards that are incommensurable, would seem to apply to any further principles or rules we may discover in the process. In other words, the claim that there may always be more principles or rules to be taken into account proves nothing about the nature of those further principles, or about my claim that the exercise, in the hands of the omnipotent Judge Hercules, will eventually come to a stop (when we have reached the right answer). In fact, the opposite conclusion could just as well be drawn from my claim that the exercise in question, under the guidance of such an omnipotent figure, would extend into infinity. Thus while a "right" answer may be available at any given stage, no final right answer would ever be arrived at by Hercules. Or, there is nothing to suggest one way or the other.
     My right answer thesis turns on the success of my attack on the skeptical argument that right answers in legal-moral dilemmas cannot be determined. My, you would say, “anti-skeptical” argument, is essentially that the properties of the skeptic’s claim are analogous to those of substantive moral claims, that is, in asserting that the truth or falsity of "legal-moral" dilemmas cannot be determined, the skeptic makes not a metaphysical claim about the way things are, but a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individual.
    I have also made important contributions to what is sometimes called the equality debate. In a famous pair of articles and in my book Sovereign Virtue, I advocate a theory I call 'equality of resources'. This theory combines two key ideas. Broadly speaking, the first is that human beings areresponsible for the life choices they make. The second is that natural endowments of intelligence and talent are morally arbitrary and ought not to affect the distribution of resources in society. Like the rest of my work, my theory of equality is underpinned by the core principle that every person is entitled to equal concern and respect in the design of the structure of society. 
     My analysis of law is essentially ideal and shows an agile type of intelligence. I make very interesting points even thought it took me a while to arrive at what my theory really is. I believe that my novelty and witty remarks are amazing. Some of my readers may consider me to be a rambler, but do agree that most of the points I make, stand out.
    I believe that there are several strengths in my theory, especially when compared to a positivist’s perspective. My theory is an attempt to bridge the inadequacies and anomalies present in the positivist approach as espoused by theorists like Herbert Hart. I will give you an overview of my theory followed by a summary of the main elements of Hart’s. I will also like to discuss the differences between the main propositions of mine and Hart’s with a particular focus on my constructive interpretation and my challenge of Hart’s views on judicial discretion.
    As I’ve mentioned earlier, I have become an influential legal theorist of this generation, and have developed a sophisticated alternative to legal positivism. My theory is an “interpretive theory of law,” primarily asking the quintessential question of whether there is truth in interpretation and judgment. Essentially humans understand that disagreement is inherent in many aspects of life, especially when looking at provisions within the law. It seems that disagreements in interpretation are endless and the fact that a judge cannot say anything other than, "he sees it this way, or he sees it differently," does not sit well to me within a legal argument. The first principle of my theory suggests that saying that there is no truth at all is skeptic and is just another judgment or position. The most that one can say is that there is an inherent disagreement because through saying that there is no truth, this develops another truth, resulting in a convoluted and circular argument. My answer to this issue is that humans have a personal responsibility to interpret. I strongly suggest that judges are simply interpreting against a backdrop of everyone who has interpreted before. My argument does not refute legislative intent but instead suggests there is reason to think that the legislature is capable of intentional action. I use the metaphor of an iceberg to compliment my theoretical answer. In other words, I suggest that the judgment is merely the tip of an iceberg and the build up to the tip is a concoction of other interpretations, and this build up is just as important as the climactic tip. As my interpretive theory suggests, this, in fact, is how truth arises; the shared responsibility of interpretation over time is what gives the judgment truth. This theory contradicts the opinions of a positivist because I concentrate more on judicial action and interpretation as compared to the positivists.

     Positivism revolves around the idea that legal systems are posited, created by people rather than having a natural or metaphysical existence. It is based on the idea that a, descriptive or at least morally neutral theory of law is both possible and valuable. The central question of legal positivism is what is law, not what the law should be, the existence of law is one thing; its merit or demerit is another. Hart is known as one of the prominent theorists in positivism, and is known for moving positivism forward from the initial ideas developed by Austin. Hart criticized Austin’s theory in suggesting that it did not look at the internal point of view; it did not question the difference between being obliged and having an obligation. On this point, Hart suggested that law is connected to having an obligation to act as the law tells us to.

    Harts approach is the internal aspect of rules and laws in which he rejects sovereignty as itself being a necessary feature of the legal system. The theory which Hart developed is grounded on his concept of rules, and how they differ from habits. In this way, he consequently divides his theory into two groups, primary and secondary rules which are joined and made coherent by a superior rule. Hart’s overriding superior rule, is the rule of recognition which he develops as the basic source of authority in any legal system. Hart most importantly argued that there are two necessary conditions for the existence of a legal system: “That the valid rules of the system must be generally obeyed, and that the criteria set forth in the systems rule of recognition must be effectively accepted as common public standards of official behavior by its officials.”
     There are many differences between my and Harts theories. The essential issue of disparity is the question of what makes the rule of recognition valid. Hart suggests that the rule of recognition is assumed by the officials of the legal system, and it is at this point in which I find his first point of difference with legal positivists. I argue for the, existence of legal principles, and Hart argues that, “there will inevitably arise cases that do not fall clearly under a rule, but concede a rule of recognition could deny judge’s discretion to make law in such cases by requiring judges to disclaim jurisdiction or to refer to points not regulated by the existing law to the legislature to decide.” I say that the propositions of law are true if the figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice. Through this, I find a weakness in Hart’s theory, which is umbrage with this idea of discretion as it contradicts the basic tenets of democratically elected parliaments creating laws. Contrastingly, I attempt to, term law as integrity. Although Hart suggests that the rule of recognition relies upon the attitude of the systems officials, and thus begging the question of who or what makes the officials official, I believe that this positivist approach gives judges too much discretion in their judgment, allowing them to be the legislature and giving them too much power.

     I conclude that there is no law beyond the law and that law and morals are inextricably interwoven. I suggest that judges look at principles that emanate from the cases, and the general principles in this case rely on morality and the sense that you should not benefit from your own wrong. These are not rules I conclude, these are principles. I say that the judge’s role is not to consider policy, a judge should weigh principles about individual’s rights. Therefore, judges should weigh principles and then they make the judgment justifying why they chose one principle over another. I highlight that law as interpretation results in no gap in law; rather it is an ongoing narrative of weighing principles. My aim is to create a community under the law, in the sense that everyone should abide by the law and come to court as equals battling out principles which have been historically embedded in previous case law.
    It is essential to discuss the distinction between rules and principles, a concept which varies between both theories of law. One of my principle ideas is the importance of principles. I ascertain that it is the task of the judge to actually find a coherent set of principles, which will justify their decision. The legal question and analysis results in a moral and principled outcome, this is the bench mark which I develop through my theory, the guiding principles are selected, in the way that fairness requires. Therefore, based on Hart’s approach, I have clearly set out the weaknesses from such theories as has been discussed above. My ability to scope so deeply into the positivists way of legal theory and discover the weaknesses which it possesses is very clever and intelligent. Therefore, as commentators note, I am “probably the most influential...legal theorist of this generation...(and) has developed a sophisticated alternative to legal positivism.”  And I’m very proud of that.



Monday, April 21, 2014

Positive law

Morality determines law so in that sense, slave and nazi law are not law. Positivist agree with slave and nazi law being laws in a sense though.

Shapiro continued

Natural lawyers says that the positive law comes from something external instituionally.

Hart- positive law is a set of structured array of rules

Shapiro-positive law can be understood as plans versus rules, is a structured array of plans

Shapiro's approach

"Shapiros approach to law is positive law. The actual made law. Positivism-the view that there is no more to the content of law than that which is made (institutionally real)."

Constrasts Holmes realism
Natural law, says positive law has something that gives rise to it.

Holmes view is realism, gives the institution what it needs by make them in control

Monday, April 14, 2014

Problem with Disgust Law

An issue that I'd like to raise with the theory that law should be based on disgust, a human sensation, is that it oversimplifies a very complex problem and, in doing so, often harms the overarching situation more so than it helps. By allowing a person to justify their actions by claiming that it spurred in them intrinsic emotions that promote aversion you allow that person the legal flexibility to use that position to justify most behaviors. One case where a man shot two lesbians because it disgusted him is no different than the actions that philosopher Dzung Nguyen could wrought. Nguyen believes that heterosexual families (and, in certain ways, heterosexuality) is an abomination of nature, that men and women are separate species and should not live together. Neither of these stances, in my opinion, have any legal footing, though for very different reasons. 

By making the claim that a legal decision can be based on a complex emotion shows out tender habit of searching for a simple solution for a complex problem. However, this conundrum, though tragic, is inescapable. For example, in cases of affirmative action, the justices, lawyers, or parties involved cannot abolish racism or erase it from history, but instead do what they can to analyze the present situation, consider the actions that they can enact, and work to use those actions to promote ideals that reflect some greater sensibility. However, even this statement falls prey to our desire for a transcendental answer, some end all solution that can be trusted unquestionably. 

Similar to the profundity and incredulity of religious faith, legal scholars look for the one inarguable principle that will defeat any argument, and do this to ignore the glaring issue of our own incompetency. Understandably, there is no way that we can examine all of the possible factors, elements, and outcomes of any case. But our habit of saying "disgust is an unquestionable sensation that can be used to justify irrational decision" will leave more people hurt than helped as it ignores factors that we can consider.

In summary:

1) Disgust is little more than a subjective sensation, not an intrinsic indicator of holy or transcendental law
2) To side with disgust ignores the complex mechanics and phenomenology of law, society, and life
3) While we cannot examine cases exhaustively, we can and should examine them to as extensive as can be allowed to be fair and just to all parties that are able to be considered.