The Generality of Law

  • First desideratum of system for subjecting human conduct to governance of rules is obvious: there must be rules. This is the “requirement of generality.”
  • In recent history most notable failure to achieve general rules has been that of our regulatory agencies, esp those charged with allocative functions. More information from Dentist Calgary
    • They have failed to create any rules at all!
  • Appreciate that this principle is different from demand of laws internal morality which just requires there must be rules, however fair or unfair they may be.
  • In actual systems, total failure to achieve anything like general rule is rare: generalisation is implicit even in a single command/wish. Eg tell dog to shake hands…  Still, many systems suffer from lack of general principle
  • Austin treaties this a bit, but his attempt to distinguish between general and particular commands was so arbitrary that it didn’t help. He failed to distinguish what is essential for efficacy of system of legal rule and what shall we call “a law”?

Public Interest Disclosure Act 1998 (PIDA) s103 ERA

REMEMBER TO MENTION THIS IN THE EXAM AS WELL !!!!!!!!

Principle if e/ee loses job cos of disclosing info he is protected from both dismissal – See Accident attorney Abogados

(s103a ERA) and suffering a detriment (s47b ERA) –

a.k.a. Whistleblower’s charter.

 Protection for employees who disclose wrongdoings by their employers to a third

party in specific circumstances.

 Needs to be a qualifying disclosure, ie any disclosure which “in the reasonable belief

of the worker” tends to show one or more of the following:

o A criminal offence

o National security

o Failure to comply with legal oblig

o A miscarriage of justice

o H&S of an individual is endangered

o Environment is being damaged

o Info relating to above is being deliberately concealed.

o Anything where there is a public interest issue

There can be a qualifying disclosure even if employee is wrong, so long as the

employee was reasonably mistaken.

7

 Disclosure must be made to the appropriate person, ie employer, H&S rep, legal

advisor, inland revenue.

 Must consult the employer/company first,

 Ie, try proper channels first and if they don’t work try an outside body

 cannot disclose to the papers, for example, at the first instance.

 Disclosure must be made in good faith, reasonably believing the info disclosed is

substantially true, which is not made for personal gain.

 Where an employee has made a permitted disclosure and is dismissed for that

reason, then that is automatic UD. No qualifying period of service is needed. No

limits on awards of compo and tribunal can order reinstatement or re-engagement.

It is unlawful to subject an employee who has made a permitted disclosure to any

other detriment. Cannot contract out of PIDA.

Damages if it’s automatically unfair, there is no limit on compensation

Cotterrell Politics of Jurisprudence, Chs. 3 and 4

  • Austin’s main aim was to separate law from other doctrines such as morality or politics, and defined law as “a rule laid down for an intelligent being, by an intelligent being having power over him.” Power and “commands” are at the centre of the Austin/Bentham definition, though Bentham, unlike Austin, was willing to include stipulated rewards as an alternative to sanctions. Austin denied this possibility, since he thought law was to do with commands, and commands are different from incentives. He claimed that nullity was a sanction (to get round the power-conferring problem). Hart’s criticism on the basis that (1) Austin’s single coercive model ignores the variety of laws and (2) ignores the different purpose of laws, as demonstrated by the variety of sanctions, is rejected by Cotterrell on the grounds that Austin was merely seeking to demonstrate characteristics familiar to all laws, NOT claim that all laws serve the same purpose. Laws repealing other ones were not laws in a real sense, since they commanded nothing.
  • Austin and Bentham both require generality for a law to exist. Generality relates (1) to the category of addressees, and (2) to the acts prohibited/required by the rule. I.e. not merely a direction on one specific case or action, nor to a particular individual. Austin therefore sees a law as a technical instrument that should aim for utility, NOT as a device to maximise liberty (as many liberal theorists see law).
  • Austin/Bentham believed that liberties were no more sacred than other types of law, and should only be granted where to do so would maximise the common good.
  • Austin’s conception of the sovereign is the office or institution that is sovereign, NEVER the individual person in charge.
  • Characteristic’s of Austin’s sovereign: There can only be one sovereign in any society and it must be determinate (i.e. clear). Also a sovereign cannot issue commands to himself. NB This is NOT only applicable to absolute monarchs: The sovereign body can be split up into several parts so that the executive and legislative powers are in reality exercised by many different bodies, while there are still constraints, just non-legal ones. Austin locates sovereignty in the monarch, lords and electorate of the Commons. BAD for legal purposes, parliament, not the people, is sovereign. Also, how can the public be the subjects of commands made by them? Austin himself said that the sovereign could not be bound by laws. Possibly he is confusing the sovereign with the sources from which the sovereign derives its authority.
  • The problem of the sovereign not being able to bind itself i.e. legally illimitable, may be overcome: If individual parts of the sovereign are limited, that does not mean the sovereign as a whole has been legally limited. A good example would be the parliament acts, limiting the powers of HL, although the power of the queen in parliament altogether has not changed.
  • Judges etc are regarded by Austin as delegates of the sovereign, whose actions are those tacitly commanded by the sovereign (so how to explain judgments to which the queen in parliament is opposed?). He regards judge-made law as no different to other secondary legislators. What does this mean where the courts rule against their sovereign? Does the sovereign just voluntarily agree to obey? No other explanation from Austin, since a sovereign surely cannot be obliged to obey their delegates.
  • The motives behind Austin’s power-based view of law are a belief in the ability of the state to improve lives, given sufficient power and utility.
  • Wide discretion would undermine Hart’s concept of law as a collection of rules

 

  • Penner Schiff and Nobles Jurisprudence & Legal Theory: Commentary and Materials Chs. 3 and 4 (Lacey: Modern Positivism: HLA Hart and Analytical Jurisprudence)

 

  • Hart claimed to be employing both analytical jurisprudence and descriptive sociology.
  • It is a mix of empiricism (looking at the way in which things actually happen) and what Cotterrell labels “conceptualism” (interpreting law by its concepts).
  • The internal aspect is a “critical reflective attitude”- manifested in the account people give of their own behaviour or that of others.

 

https://www.law.cornell.edu/wex/jurisprudence

 

Harris Legal Philosophies, Ch. 9 (explanation of Hart’s Concept of Law)

  • Hart believed in examining legal concepts by the words used to represent them and how those words were used in ordinary language, inside and outside of the law. Use of words could be sociological evidence for something. From language analysis we discover we deduce sociological information.
  • If a group has a rule, 2 things exist: (1) Members perform/refrain from performing certain actions, and (2) there must be a “critical reflective attitude” shared by the majority towards the action in question. (1) alone would merely be habit. (2) – the internal attitude-can be demonstrated by demands for conformity e.g. normative language such as “you ought to do this”. When the pressure to conform is great, the rule is an “obligation rule”.
  • Obligation rules differ from other rules in three respects: (1) the level of pressure for compliance; (2) their association with a prized feature of social life; (3) it is generally recognised that they may cause conflict with a person’s interests.
  • Obligation rules that are enforced by physical sanctions represent a kind of law; obligation rules that don’t go that far are moral rules.
  • A society with only obligation rules cannot change its rules nor decide disputed issues, since it has no means by which to do so. Therefore society needs rules of change, adjudication and recognition. Obligation rules = primary rules; Rules of adjudication, change etc = secondary rules. Secondary rules are those that confer power, NOT impose obligations. A legal system comprises both types of rules.
  • NB an objection to this analysis of rules is to say that some rules are personal, not social, e.g. if I am a vegetarian, nobody may be compelling me to do it, and yet it is a rule to which I subject myself. Therefore, Hart’s analysis only applies to rules which have some degree of social coercion.
  • Hart’s internal element does not depend on a moral approval of the rule- acceptance may be based on fear, habit, self-interest etc
  • Hart doesn’t define what a legal system is, but says that the union of primary and secondary rules.
  • The rule of recognition is the idea that a law is only valid once it has passed through the various stages that the officials etc of the day recognise as being necessary for a law to be valid e.g. if in Britain everybody recognises that “what the queen enacts in parliament is law”, then that is the rule governing the validity of laws.
  • The rule of recognition exists as “social practice”. This social practice, according to Hart, is to be identified by looking at whether members of a group criticise those who do not comply with it.
  • Rules of recognition provide criteria by reference to which rules are identified as legal.
  • For a legal system to exist, there have to be (1) valid rules must be obeyed and (2) the rules of validity/change/adjudication must be accepted by its officials- i.e. obedience of primary rules and recognition of secondary rules by officials.
  • The point of rules on change, adjudication etc is to avoid the problems of a pre-legal society (that rules cannot change, causing rigidity and uncertainty about whether rules still apply). This approach is diagnostic i.e. it allows us to look at a country and determine whether a legal system exists.
  • Hart’s said that what the law “is” depends on both the “external” idea of “being obliged” (i.e. coercion, threats etc), and the “internal” idea of “being under an obligation” (feeling of a sense of duty to act in compliance with a law). However, many argue that the internal duty necessarily involves a moral (normative) value judgment. By contrast Raz argues that moral/normative judgments have nothing to do with what law “is” i.e. there is a difference between asking whether a law exists and whether it is a good law. Raz says there is no general moral argument for obeying the law- whether a law exists is just a function of whether the law-making institution has “authority” to do so.