Term
| Dworkin's Explanation of coherence and continuity in the “story” of law |
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Definition
Dworkin believes we are continually adding on to and amending law so law and government becomes something of a “story” rather than something static.
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Term
| Dworkin - Why his theory claims there is always one correct legal decision in each case |
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Definition
| Dworkin’s theory is based on the idea that law is not just a set of rules or a set of judicial decisions but that law includes principles and principles must include justice and morality. This moral claim to law makes it a necessity that there must only be one correct legal decision in each case. |
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Term
| Dworkin and Hart - Reasoning that each gives regarding whether Legal Positivism can incorporate principles |
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Definition
| Dworkin claims that unless at least some principles are acknowledged to be binding upon judges then no rules, or very few rules can be said to be binding on them either. If judges have strong discretion then they have discretion to change the rules, however if this is true then the rules are not binding upon judges. Therefore legal positivists must either abandon the belief that rules are law or accept that there are some other standards besides that explain when rules are binding. These other standards, says Dworkin, are principles and because Legal Positivism is based on the idea that law is separate from morality it is incompatible with the idea of principles. For Hart, legal positivism can incorporate principles but he argues that a judge uses principles from an internal point of view. According to Hart, legal positivism is explaining law in general and to base law off of principles rather than rules would be looking at law from only an Anglo/American point of view. Therefore, under a legal positivist point of view judges can use principles when making decisions but principles cannot be the basis of law. |
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Term
| Hart’s general claim about how his theory differs from Dworkin’s theory |
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Definition
| Hart claims that his theory is different from Dworkins in that his is meant to explain law generally and Dworkin’s theory can only explain Anglo/American law. |
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Term
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Definition
| In a pareto-Superior society it is almost impossible to make any policy or exchange without making at least one person worse off. Kaldor-Hicks is the theory that within a Pareto-Superior society a person can be made worse off as long as they are compensated by those made better off. Kaldor-Hicks then describes a Pareto-Superior situation in which at least one person is better off and the loser can be compensated. |
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Term
| Coase theorem, and relation to externalities and transaction costs |
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Definition
| The coase theorem states that no matter how you distribute initial rights you will have the same outcome given perfect conditions (no externalities and no transaction costs). |
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Term
| Nature of “mimicking the market” |
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Definition
| Mimicking the market refers to the idea that when deciding a case a judge must attempt to try and figure out what the result would be under perfect conditions and then assign rights accordingly, i.e. “mimic the market”. |
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Term
| Application of economic approach to Tort law |
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Definition
| The economic approach to tort law is the idea that society should attempt to maintain an “efficient number of accidents”, that is, keep the number of accidents to a level where the cost of the accidents and the cost of preventing accidents are balanced to maximum efficiency. Tort law attempts to achieve this efficiency by encouraging accident prevention and keeping costs low. |
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Term
| Critical Legal Studies - Relation to legal realism |
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Definition
| critical legal studies is an update of the arguments of legal realism. Legal realism makes the claim that law is simply what judges decide, critical legal studies says that law is an arena for political struggle and while law is not entirely based on the decisions of judges judge’s have a wide latitude in which they can make their decisions. |
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Term
| CLS - Arguments against Dworkin’s claims regarding coherence (and Dworkin’s replies) |
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Definition
| Dworkin argues that principles provide coherence in law, which leads to determinacy. Critical Legal Studies rejects this and says that principles themselves are inconsistent and thus indeterminate. Dworkin replies that he never argued that principles were consistent and that the different weight of principles shows determinacy. CLS asks of this reply: who determines weight of different principles and what allows us to specify weight of certain principles in certain cases? |
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Term
| CLS -Arguments that even if law is coherent, Dworkin is still wrong (and Dworkin’s replies) |
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Definition
| CLS makes the argument that even if legal principles are coherent this coherence is merely formal/minimal and thus they cannot give instructions in specific cases; there is no maximal coherence to determine particular cases. Therefore, even if legal principles are coherent as Dworkin claims, this is irrelevant. Dworkin replies to this argument by saying that actual clashes come about in society not because principles cannot give instructions in specific cases but because judges do not share principles. Dworkin also argues that saying principles are formal/minimal strips them of their actual content. It leaves them with only the words, not the actual principles behind those words and it is the content that makes principles point in certain ways. |
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Term
| MacKinnon’s arguments about nature of gender as dominance |
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Definition
| MacKinnon argues that gender is defined by dominance. She says the very conception of men and women creates a system in which men are supposed to have power over women. |
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Term
| The law as taking male point of view, with examples |
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Definition
| MacKinnon says that law is from a male point of view; that law is set up to institutionalize men’s power over women. For example, legal protection of pornography under “freedom of speech” ignores the oppression of women by looking only at the free speech factor involved in pornography and not the oppression of the women in the videos or the consequences it has for women in society in general. |
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Term
| Rawls - Nature of political liberalism as justification for the original position |
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Definition
Rawls argues that in a politically liberal society there are two characteristics of society that justify the original position, overlapping consensus and public political culture. Overlapping consensus is, according to Rawls, the idea that citizens in a politically liberal society hold different doctrines but that all citizens agree on some things regardless. These things, says Rawls, are a belief that people are free and equal and a desire to find fair terms of social cooperation. Furthermore, Rawls argues that the public political culture of a politically liberal society already endorses the ideas found in the overlapping consensus, therefore both the overlapping consensus and the public political culture justify the original position.
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Term
| Role of Supreme Court decisions in interpreting and identifying constitutional principles |
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Definition
| The actions of the Supreme Court specify the general norms lay down by the founders, their interpretations form “bedrock” from the very general principles stated in the constitution. According to Perry, the Supreme Court has the power to interpret the norms specified in “constitution 2”. |
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Term
| Temporal status of norms to be used in interpretation |
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Definition
| Rubenfeld argues that the norms used in interpretation must be temporally extended, that is, existing over time. |
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Term
| Identification of “the people” |
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Definition
| Rubenfeld says we should understand the legitimacy of the constitution based on who the people are – who gave it legitimacy. Rubenfeld rejects the claim that “the people” are the founders saying that the founders cannot assert power over us, therefore legitimacy must come from some other “we the people”. However, it cannot come from the group of citizens existing today because the constitution is supposed to be a bedrock document asserting power over those citizens. Therefore, we must understand “the people” as a temporally extended whole – a collective identity that persists over time and transcends certain groups of individuals such as the collective citizens of the country at any one time. |
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Term
| Rubenfeld’s “paradigm case method” |
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Definition
| when individual groups of people are instituting new ideas as amendments the paradigm case is the core used to understand what that amendment is supposed to be. For example: the 14th amendment was aimed at the black codes (eliminating laws which inhibited the equality of black citizens post civil war). The core of the 14th amendment is its aim, that is, to eliminate the black codes and enforce equality. All else falls under the penumbra. Rubenfeld says these amendments must be negative, i.e. “we never want X to happen in our society again” |
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Term
| Perry’s basis of authority for Supreme Court |
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Definition
| Where did the Supreme Court get the right to interpret C2? The right is not contained in the constitution; rather, the Supreme Court itself declared that it has the right (Marbury v. Madison). This is paradoxical. So, why should we accept the rulings/interpretations of the Supreme Court? The Supreme Court’s right to rule/interpret comes from accepted tradition. |
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