PUB 3: Foundations | January 10th, 2024

Sophocles, ed, trans, David Mulroy, Antigone (2013), 22-5

●​ Antigone’s invocation of eternal, unwritten laws is one of the most famous passages in
Greek tragedy
●​ The guard reports to Creon that Antigone has been caught in the act of burying her
brother, who was condemned to remain unburied by Creon’s decree. Antigone is being
arrested for defying this law, which prohibits the burial of the body.
○​ “This girl arrested for committing burial “
■​ He saw her trying to bury a corpse
●​ Antigone agrees this testimony is true
○​ She argues that the law of the gods, which demands respect for the dead and
proper burial, is eternal and unbreakable, in contrast to Creon's mortal,
human-made laws.
○​ So despite knowing it was illegal, Anitgone proceed anyways
■​ It wasn’t Zeus who issued that decree”
■​ “If, however, I allowed my mother’s son to lie unburied, that would truly
hurt. This doesn’t hurt at all”
○​ Antigone explains that she chose to follow the unwritten, divine laws of the gods
over the commands of a mortal ruler
■​ Theme: Tension between state law and unwritten law
●​ “Freeing oneself from trouble is a very pleasant thing, but bringing friends misfortune
causes pain”
○​ He is essentially saying that getting out of a challenging situation, in this case, by
capturing Antigone, is a good feeling for him personally. He has solved his own
problem by fulfilling Creon's order, and this brings him comfort.
●​ “If, however, I allowed my mother’s son to lie unburied, that would truly hurt. This
doesn’t hurt at all”
○​ Antigone accepts the reality of death and doesn’t fear it, as she knows it will come
eventually. She sees her act of burying her brother as morally right, even if it
leads to her own death.

Rod Macdonald, General Schematic of Theoretical Approaches to Law (2004-5)

●​ Since the emergence of western legal systems, there have been tree dominant conceptions
of law and its origins
 ○​ A. legal positivist perspectives
■​ See law as a result of the conscious application of human effort to the
creation and elaboration of systems of rules and systems
■​ Law is whatever the relevant political authority declares law to be
●​ Law is closely aligned with the state in this approach.
●​ Key features:
○​ A hard criterion exists to distinguish what is law and what
is not.
○​ Morality (whether law is just) and efficacy (whether law
works) are separate from the existence of law.
○​ The existence of law depends on its pedigree (source)
rather than its value or function.
○​ Only norms created by or incorporated through state
institutions qualify as law.
○​ B. natural law perspectives
■​ Central claim of this perspective si that there is a “higher law” than that
given by any particular political state at any particular place and time
●​ This “higher law” is said to have one of two main inspirations: the
nature of human beings and human society or divine will
○​ C. socio-historical perspectives
■​ This perspective affords a large palace to social mores, customs, practices,
and usages as instances of law
●​ Originates from idea that every society threw up its own particular perspectives on law
and legal institutions,a although he also attributed important dimension of law’s character
to universal reason as well
■​ Customary law - the law established by long usage and refinement was the
true law by which people organized their relationships with each other
○​ D. Continuing reflections of these traditional perspectives
■​ These perspectives pose two of the central issues in legal studies:
●​ The relationship of the universal to the particular, and the
relationship of the contracted (Construit) to the given order
(Donne)
○​ Law as a human creation vs. law derived from natural or
divine authority.
■​ Adoption by disciplines
●​ Legal Philosophy: Supports legal positivism (focuses on law as it
is, not as it should be).
●​ Sociology & Anthropology: Emphasize historical and cultural
influences on law.
 ●​ Religious Studies & Ethics: Often align with natural law
(morality-based legal systems).
●​ Political Science: Focuses on state authority and often adopts
positivist views.
●​ Economics: Positivism fits their focus on markets vs. state
regulation.
●​ The main focus of each of these perspectives is definitional: what is law? And where
does it come from? What is the source of its authority?
●​ Two sig developments exploded the terrain of legal theory
○​ 1. Radical expansion in inquiry into human activity
■​ With the attempt to apply so called “scientific method” to human
endeavors
●​ The object of law became a subject of study
○​ 2. The development of full time legal study with full time faculty and the better
accessibility of materials to study
●​ Issue with saying endogenous and exogenous critique of law
○​ It presupposed that “law” exists and that there is a criterion by which “that which
law” can be distinguished from “that which is not law”
●​ Is a definition of law possible? If so, is this definition based on empirical evidence, or
is it based on an assertion about criteria of differentiation?

A. American legal realism and its aftermath

○​ discovered that there was a "gap" between the law in books and the law in action,
that judges frequently delivered judgements that bore no relationship to existing
statutory or common law rules
■​ and that sometimes judges seemed to be doing nothing other than "what
they wanted to do"
○​ New approach to legal theory emerged, known as “legal realism”
■​ The gist of legal realism was to recreate a new theory of legal positivism,
in which the source of law was not the state (or legislature) but the courts
and judges
■​ Legal realism and many of its successors are legal theories that are
intensely focused on courts
○​ After World War II, jurists developed "jurimetrics," which applied Boolean logic
and computer simulations to judicial decision-making.
■​ A central assumption of jurimetrics was that judges are influenced by
factors beyond legal rules, such as personal biases or external motivations
 ●​ By the 1960s, U.S. legal scholarship shifted focus due to movements like civil
rights, anti-Vietnam protests, feminism, and increased immigration
○​ Scholars during this period believed that:
i.​ Law and politics are deeply connected.
ii.​ Law primarily serves the interests of the state.
iii.​ Law reflects existing distributions of social power.
iv.​ Courts could be strategically used through litigation to advance
progressive goals.
v.​ Political power could be leveraged to transform society through the
legal system.
●​ Over the next three decades several “critical approaches” to law were developed
and explored
○​ 1. Critical legal studies (CLS)
■​ Demonstrate the inability of rules or principles to meaningfully
control the exercise of judicial decision
●​ CLS amounts to the recognition of the power of the judge
over the words of a text, coupled with hostility to their
intentions
○​ 2. Critical feminist theory
■​ Existing institutions, procedures and rules of western legal system
are gendered in their conception, and the outcomes they produce
are differential, depending on gender consideration
■​ A better theory of law would recognize these hierarchical patterns
of male domination and would attend to particularity to context
○​ 3. Critical race theories
■​ Locating law and legal institutions as an instrument of oppression
○​ Public choice conception of the legislative and regulatory processes

​ B. Legal process, Law and Society and Socio-legal studies

○​ Marxist Legal Theory critiqued law as a tool for class oppression.

■​ Focused on state-driven legal systems.
■​ Later expanded to include global institutions like the WTO and IMF.
○​ Law and Society Movement started in the 1960s, focused on studying how law
operates in practice.
●​ Brought together sociologists, anthropologists, and historians.
●​ Studied law critically without promoting specific theories about how it
should work.
●​ Socio legal studies
 ○​ Focused on informal legal systems, like community rules or traditions.
○​ Studied legal pluralism (many legal systems coexisting).
●​ Two main perspectives
○​ Statist: Focused on state-based laws and theories about improving them.
○​ Relativist: Emphasized non-state laws and diverse legal systems.

​ C. Postmodern jurisprudence

●​ In the 1970s-1980s, legal theory expanded with the influence of postmodernism,

building on thinkers like Derrida and Foucault
○​ This approach examined how law constructs power, authority, and
meaning, integrating insights from language, psychoanalysis, and social
theory
●​ It challenged modernist formalism and interdisciplinary boundaries, emphasizing
law's cultural contingency and its use as a tool of state power. Postmodern
perspectives also fostered "critical legal pluralism," linking law with diverse
cultural and normative systems

Module 1: Foundations of Law | January 15th, 2024

Hans Kelson “Pure Theory of Law, Its Method and Fundamental Concepts (1934)

Austrian jurist Hans Kelsen describes his theory of law as “pure”. What are the impurities he seeks to
avoid by developing this theory? Why? What is the ‘basic norm’ or grundnorm in the structure of law,
according to Kelsen? If Kelsen is right about law, what does "learning the law" require?

1.​ What are the impurities Kelsen seeks to avoid, and why?
○​ Kelsen seeks to exclude "foreign elements" such as morality, sociology,
psychology, and natural sciences to maintain the law's autonomy and purity.
These external influences, he argues, dilute the essence of legal science.
■​ "[The Pure Theory of Law] endeavours to free the science of law from all
foreign elements. This is its fundamental methodological principle...
Jurisprudence, in a wholly uncritical fashion, was mixed up with
psychology and biology, with ethics and theology."
2.​ What is the ‘basic norm’ or grundnorm in Kelsen’s theory?
○​ The grundnorm is the presupposed foundational norm that gives validity to all
other norms in a legal system. It is hypothetical and necessary for the unity of
legal norms.
 ■​ "A multiplicity of norms constitutes a unity, a system, an order, when
validity can be traced back to its final source in a single norm. This basic
norm constitutes the unity in diversity of all the norms which make up the
system."
3.​ If Kelsen is right about law, what does "learning the law" require?
○​ Learning the law requires understanding the hierarchical system of norms and
how specific norms derive their validity from the basic norm. It involves
comprehending legal rules as binding, independent of their moral or political
value.
■​ "To comprehend something legally can mean only to comprehend
something as law... Legal knowledge is directed towards these norms,
which confer on certain circumstances their character of legal (or illegal)
acts."

●​ Pure theory of law is a theory of positive law

○​ Answers the question: what is law?
■​ But not: what ought it to be?
○​ It is concerned with that part of knowledge which deals with law, excluding form
such knowledge, everything which does not strictly belong to the subject matter
●​ Law is a social phenomenon
○​ Law must be distinguished in the plainest possible manner form nature
●​ A social act can carry with it an indication of it sown meaning
●​ Need to distinguish between the subjective and the objective meaning of an act
○​ The objective meaning adheres to the act by virtue of its place among all legal
acts, that is, in the legal system
●​ Characteristically legal meaning is received from a norm whose content refers to it
○​ Norm functions as a schema of meaning
■​ Born of a legal act which receives its meaning from another norm
●​ To comprehend something legally can mean only to comprehend something as law
○​ For law, the sole object of legal knowledge, is norm
■​ The norm is a category which has no application in the sphere of nature
●​ In defining the law as norm, and in restricting legal science to knowledge of norms, we
delimit law from nature and the science of law, as a normative science, from all other
sciences which aim at explaining casual, natural processed
●​ The pure theory of law considers legal norms not as natural realities, not as facts in
consciousness, but as meaning contents
○​ It considers facts only as the content of legal norms, that is, only as determined by
the norms
●​ The science of law is a mental and not a natural science
●​ The law, or the legal order, is a system of legal norms
 ○​ Norms are valid by virtue of their content
■​ Which has a directly evident quality compelling recognition
○​ A norm becomes a legal norm only bc it has been constituted in a particular
fashion, born of a definite procedure and a definite rule
○​ Law is valid only as positive law
■​ State constituted law
○​ The basic norms of law can only be fundamental rule, acc to which the legal
norms are to be produced
○​ The norm is only an expression for the necessary presupposition of all positivistic
constructions of legal material
●​ The law regulates its own growth and its own making
○​ The unity of the legal order is a law making unity
○​ The law is not a system of equal, side by side norm
■​ It is a hierarchy with different layers
●​ It must be known definitely whether there is present in concreto a condition of fact which
the general norm in abstracto regulates

Hart The Concept of Law

HLA Hart, a famous English legal scholar, takes a slightly different (but perhaps still unfamiliar)
approach. Why, according to Hart, has it been so difficult for legal thinkers to define what law "is"? What
are some of the sources of confusion, in his view? How does Hart go about beginning to answer the
question "what is law" (i.e., what methods or sources of evidence does he use)? What does the definition
or "essence" of law have to do with "foundations"? What is significant in the metaphor of foundations as
opposed to roots?

1. Why has it been so difficult for legal thinkers to define what law "is"?

Legal thinkers struggle to define law due to the complexity and multifaceted nature of the
concept. Various theories highlight different aspects, often exaggerating certain truths while
neglecting others, which has led to confusion.

"Speculation about the nature of law has a long and complicated history; yet in
retrospect it is apparent that it has centred almost continuously upon a few principal
issues... [which] concern aspects of law which seem naturally, at all times, to give
rise to misunderstanding."

2. What are some sources of confusion, according to Hart?

Hart identifies several sources of confusion, including:

 ●​ Misunderstanding the relationship between law and morality.
●​ Viewing law as merely orders backed by threats.
●​ Failing to distinguish legal rules from habitual behavior or other social rules.

"The most prominent general feature of law at all times and places is that its
existence means that certain kinds of human conduct are no longer optional, but in
some sense obligatory... Yet this apparently simple characteristic of law is not in fact
a simple one."​
"There is a difficulty in identifying precisely the relationship [between law and
morality] and a temptation to see in the obviously close connection an identity."

3. How does Hart begin to answer the question "What is law"?

Hart begins by analyzing the deficiencies of simplistic theories, such as Austin’s "orders backed
by threats" model, and develops a more nuanced framework that accounts for both primary and
secondary rules.

"The main ways in which the theory failed are instructive... [including that] there
are other varieties of law, notably those conferring legal powers... which cannot,
without absurdity, be construed as orders backed by threats."

4. What does the definition or "essence" of law have to do with "foundations"?

The "foundations" of law are its basic principles and rules that provide a framework for
understanding its operation. Foundations offer stability and coherence, as opposed to transient or
superficial characteristics.

"The set of elements identified... serve this purpose in ways which are demonstrated
in the rest of the book. It is for this reason that they are treated as the central
elements in the concept of law and of prime importance in its elucidation."

5. What is significant in the metaphor of foundations as opposed to roots?

The metaphor of "foundations" implies a structured and deliberate basis upon which the legal
system is built, while "roots" suggests something organic and less deliberate. Foundations
highlight intentionality and coherence in the system.

"The purpose is not to provide a definition of law, in the sense of a rule by reference
to which the correctness of the use of the word can be tested; it is to advance legal
theory by providing an improved analysis of the distinctive structure of a municipal
legal system."
●​ The question "What is law?" has been persistently asked, with diverse and paradoxical
answers from serious thinkers over centuries.
○​ Unlike other disciplines, legal theory has no straightforward definition; it’s been
marked by debates and disagreements.
○​ Many definitions of law focus on exaggerations of specific aspects, often
neglecting the full complexity of law.
○​ People can recognize laws and legal systems in practice, but defining their
essence remains challenging due to unclear or conflicting views.
●​ Common knowledge about law includes its role in regulating behavior, the presence of
courts and legislatures, and its system-like structure.
○​ Despite this familiarity, confusion arises because certain types of law, such as
international or primitive law, deviate from standard legal systems.
○​ Legal thinkers often conflate law with other concepts like morality or orders
backed by threats, leading to misunderstandings.
●​ Legal obligation is sometimes wrongly equated with moral obligation or orders backed
by threats, missing key differences.
●​ Rules are central to law, but their nature is debated. Rules differ from habits because
they involve a sense of "ought" or obligation, often enforced by penalties.
●​ Critics argue that rules are more than predictable reactions to behavior; they provide
justification and guidance for actions.
●​ Simplistic theories, like Austin’s "command backed by threat" model, fail to account for
many features of modern legal systems, such as laws conferring powers or rules that bind
lawmakers.
●​ Hart introduces the idea that law is a union of primary rules (obligations) and secondary
rules (governing how laws are created, applied, or changed).
●​ Defining law concisely is difficult because it involves resolving complex questions about
its nature and structure.
●​ Instead of offering a narrow definition, Hart focuses on analyzing the unique structure of
legal systems to clarify how law operates.
●​ The foundation of law lies in its structural elements, which give it coherence and
distinguish it from morality or coercion.
●​ The metaphor of "foundations" suggests an intentional, structured base for law, unlike the
organic, uncontrolled implication of "roots."
Module 1: Foundations of Law | January 17th, 2024

Jacques Derrida: Declarations of Independence

The signature invents the signing

The coup of force makes right, found right or the law, gives right, bring the law to the light of
day, gives both birth and day to the law

The sign in the law of nature and in the law of god

How does Derrida build on, or undermine, Kelsen’s idea of the grundnorm?

Derrida refers to law as being written in the "future anterior" tense. What does this mean?

When and how can we know whether a legal structure is legitimate?

Weber Profession and Vocation of Politics 1994

Although Weber does not address law directly, how does his definition of political authority relate to, say
Austin's jurisprudence as discussed by Hart?

●​ Uses the term pooltics to mean the leadership, or the exercise of influence on the
leadership, of a political association
●​ Politics would mean striving for a share of power or for influence on the distribution of
power, whether it be between states or between the group of people contained within a
single state
●​ Anyone engaged in politics is striving for power, either power as a means to attain other
goals or power for its own sake
○​ Which is to enjoy the feeling of prestige given by power

In what ways can that authority be considered legitimate, according to Weber's schema?

●​ For state to remain in existence, those who are ruled must submit to the authority claimed
by whoever rules at any given time
●​ There are three grounds legitimating any rule
○​ 1. Authority of ‘the eternal past’ of custom,
■​ Held sway from time immemorial and by a habitual predisposition to
preserve it
 ■​ It is a traditional rule as exercised by the patriarch
○​ 2. Authority of exceptional, personal ‘gift of grace’ or charisma
■​ The entirely personal devotion and personal trust in revelations, heroism
or other qualities of leadership in an individual
■​ Someone who is inwardly called to the task of leading men, and that the
led submit to him, not because of custom or statue but because they
believe in him
○​ 3. Rule of virtue of ‘legality; by virtue of belief in the validity of legal statue and
the appropriate judicial competence founded on rationally devised rules
●​ These notions of legitimacy and their inner justification are of very considerable
importance for the structure of rule
●​ All organized rule which demands continuous administration requires on the one hand
that human action should rest on a disposition to obey those rulers who claim to be the
bearers of legitimate force
○​ In other words, it requires asn administrative staff and the material means of
administration
■​ The administrative staff is bound by two means which appeal self interest:
material reward and social honour

What distinguishes the modern state from other forms of centralized power, according to Weber?

●​ In the analysis of the modern state, it could be defined in sociological terms of a specific
means, which is peculiar to the state, as it is to all other political associations, namely
physical violence
○​ Every state is founded on force as Trotsky once said
●​ He think this is correct
○​ If there excited only social formations in which violence was unknown as a
means, then the concept of the ‘state; would have disappeared
■​ Then the situation that would arise is energy
●​ Violence is not the sole means sussed by the state
○​ But it is the means specific to the state
●​ Relation between state and violence is intimate one
○​ The state is held to be the sole source of the ‘right’ to use ‘violence’
●​ All forms of state order can be divided into two main categories based on different
principles:
○​ 1. Staff of men on whose obedience the holder of power must be able to rely, own
the means of administration in their own right
■​ Whether these consist of money, buildings, war material, carriage, or
whatever
○​ 2. Administrative staff is separated from the means of administration
 ■​ It is a question of whether the holder of power controls the administration
personally and directly, having the actual administrative work by personal
servant or by paid officials or by personal favorites and confidants
●​ “The development of the modern state is set in motion everywhere by a decision of the price to
dispossess the independent ‘private’ bearers of administrative power who exist alongside him,
that is all those in personal possession of the means of administration and the conduct of war, the
organization of finance and politically deployable goods of all kinds”
○​ So the modern state formed when rulers took control of key functions like
administration, military, and finance, which were previously managed by
powerful individuals or groups.

Module 2: Law as sovereign rule | January 22nd, 2024

Valverde

What is "liberalism"?

●​ Historically in dedicated an opposite to absolute monarchies and to the power of

the catholic church to monopolize education and ethical thought
●​ Liberals inspired by the new notion of ‘liberty; made popular by the American
and FRench revolutions
●​ For this chapter, meaning of ‘liberalism’ that matters most is not related to
economics, but rather is connected political and legal theory and policy
○​ Hobbes’ view that political sovereignty lies originally and fundamentally
in the individual
■​ Individual is regarded as existing by nature and as autonomous and
separate by nature
●​ Political systems, like governments, are not naturally formed from the specific
needs or customs of society (as medieval thinkers believed), but rather emerge
from the decisions of individual, isolated people
○​ According to this view, people agree to limit some of their personal
freedom (autonomy) for the collective good—primarily to create
conditions for market activity (economic transactions) and to maintain
basic safety and security.
●​ “They believed that a proper government is one that can be
understood as if it were the product of a simultaneous agreement
amongst naturally free individuals to give up a part of their natural
sovereignty, pooling those in what would then become the state”
○​ some political theorists believe a legitimate government arises when free
individuals come together and collectively agree to give up some of their
natural freedom
 ○​ By doing so, they form a collective entity—the state—that functions to
serve the interests of the whole group, while still protecting basic rights
and ensuring order
○​ It's about individuals voluntarily sacrificing a portion of their sovereignty
for the common good and the creation of a stable, organized society.
●​ The notion that even when living in organized societies with governments,
individuals Liberalism are entitled to a certain autonomy
○​ a sphere of ‘privacy’ – the ‘inalienable’ rights invoked in the US
Declaration of Independence

Why are imperialist rulers, according to thinkers like Mill, justified in forcibly governing
communities and societies elsewhere?

●​ in countries like the US, which follow Locke-style constitutional ideas, it's
assumed that everyone—citizens and even residents—has implicitly agreed to live
under a shared government, even if no one actually signed anything
●​ This means people are expected to follow the laws, even if they don't agree with
them or find them oppressive
●​ The concept of a "social contract" becomes complicated when considering
foreigners living in the country or Indigenous people in settler societies, as they
may feel they never agreed to or are not included in this supposed contract.
●​ Mill’s argument was that coercive authority should be limited, with individuals
being entitled to think and act as they see fit, as long as ‘harm to others’ does not
ensue
○​ This is the principle courts and legislatures have used in various countries
to decriminalize morally contentious behaviour such as abortion,
homosexuality, prostitution, and marijuana use
●​ “Mill’s theory of individual liberty was thoroughly imperialist: for him, the human
desire for liberty was not inborn in all humans but is the product of a
civilizing process that has succeeded only in a few favoured nation”
○​ For Mill, the reason some nations or people were seen as deserving of
individual freedom while others were viewed as needing to be ruled by
wise leaders was not based on biology, but rather on cultural and
institutional differences
■​ He believed that certain cultures or societies were more capable of
self-rule than others.

How is liberalism tied to particular economic ideas about the individual, and about the
value of individual or societal "improvement"?

●​ Economic liberalism is a broad term encompassing policies that support capitalist

business and the abstract concept of "the market."
 ●​ It tends to oppose high corporate taxes and is wary of powerful labor unions.
Historically, economic liberals have been against tariffs and trade barriers
●​ However, in recent years, some supporters of free-market principles, like
President Trump, have reverted to protectionist measures, such as tariffs,
challenging the traditional liberal stance
●​ This demonstrates that the term "liberal" is not confined to a singular economic
ideology.

As you read both Hobbes and Arendt, trace the elements of Hobbes' argument by
answering the following questions:

Which characteristics does Hobbes ascribe to humans as individuals and to early human
societies?

Which methods, or sources of evidence, does he use to support his account?

Why is it that individual humans come together in organized body politics (or states),
according to Hobbes? What types of powers (or political sovereignty) do people give to
their leader (or sovereign ruler)? On what basis are they justified in granting such
powers to that ruler? (hint: Valverde and Arendt both help to make sense of these
matters.)

●​ Hobbes argues that all humans are fundamentally equal in physical and mental capacities,
despite minor differences.
○​ This equality creates equal hopes for achieving desires, leading to competition.
○​ When two people desire the same thing, conflict arises, driven by competition
(gain), diffidence (safety), and glory (reputation).
●​ In the absence of a common power to enforce laws and peace, humans exist in a state of
war, where life is solitary, poor, nasty, brutish, and short.
○​ War is not limited to active fighting but includes the constant threat of conflict
when there is no assurance of peace.
○​ In this state, there is no place for industry, culture, navigation, or society.
●​ Natural law inclines humans toward peace due to fear of death, desire for comfortable
living, and hope for improvement through effort.
○​ Reason identifies mutual agreements (laws of nature) as necessary to achieve
peace, such as fairness, equity, and fulfilling agreements.
●​ To escape the state of war, individuals collectively agree to establish a common power (a
sovereign).
○​ This requires transferring individual rights and strength to one person or
assembly, creating unity and enabling peace and security.
○​ The sovereign represents the collective will and ensures the common good, with
subjects agreeing to obey their decisions.
 ●​ The sovereign’s power derives from mutual covenants, making them absolute and
indivisible.
○​ Subjects cannot revoke sovereignty or act against the sovereign, as doing so
would violate the original agreement.
●​ The sovereign has rights to maintain peace and order, including defining laws, judging
disputes, punishing offenders, and determining war and peace.
○​ Justice and morality depend on the sovereign’s laws, as there is no right or wrong
without a common authority.
●​ Unlike animals, humans require a common power due to their tendency toward pride,
envy, and disagreement.
○​ Unlike natural cooperation in animals, human unity is artificial, relying on
agreements upheld by the sovereign.
●​ The sovereign must regulate opinions, doctrines, and communication to prevent discord,
as ideas influence actions and societal peace.
●​ Hobbes emphasizes that the institution of a commonwealth is essential for societal
security, peace, and the proper functioning of justice.
○​ Without a sovereign, humanity reverts to a state of war, characterized by
insecurity and conflict.

Arendt's discussion of Hobbes begins at 139, but you may find that the earlier pages included
in this module's readings provide useful context for her analysis.

●​ Imperialism emerged from economic crises like overproduction of capital and

oversaving, where surplus wealth couldn't be invested domestically.
○​ Export of money preceded export of political power, with financiers and states
collaborating to protect risky foreign investments.
○​ Early Jewish financiers played a role in opening channels for capital export but
were later replaced by native bourgeois leaders like Cecil Rhodes.
●​ Export of power led to imperialist policies, where state violence (police and army)
supported capital abroad, especially in underdeveloped regions.
○​ In these regions, violence overshadowed both economic and ethical constraints,
enabling unchecked exploitation and the accumulation of wealth through force.
○​ Expansion became a permanent political aim, linking unlimited accumulation of
capital to endless growth of power.
●​ The bourgeoisie, traditionally focused on private wealth, entered politics through
imperialism, adopting reckless private behaviors as public policies.
○​ Statesmen began mimicking businessmen, applying competitive and expansionist
strategies to political governance.
 ○​ Hobbes's philosophy, emphasizing power as the driving force of human behavior
and politics, aligned with this transformation.
●​ Hobbes's "Leviathan" proposed a commonwealth based on the delegation of power, not
rights, with the state monopolizing violence to ensure security.
○​ This structure reduced individuals to powerless parts of a power-accumulating
machine, where private interests were subordinated to state authority.
○​ Public and private lives merged under the guise of necessity, fostering
competition and making chance the arbiter of success.
●​ Imperialism aligned with bourgeois ideals by treating expansion as necessary for stability,
despite its destructive potential.
○​ Accumulating power to sustain wealth led to instability, requiring constant
conquest to maintain order.
○​ The process ultimately destroyed both the conquered and the conquerors, turning
power into a self-consuming force.
●​ Imperialist expansion was initially seen as a solution to domestic political and economic
challenges, masking internal instability in European states.
○​ Governments supported imperialism despite recognizing its risks, as it delayed
their nations' internal disintegration.
○​ This delay created a false sense of stability, which collapsed into destruction
during the world wars.
●​ The bourgeoisie’s rise through imperialism redefined politics as a continuous process of
power accumulation, where destruction became inevitable.
○​ Power became self-justifying, disconnected from ethical or practical ends,
perpetuating cycles of expansion and conflict.

●​ Why does Arendt describe Hobbes' account as one that gives an "almost complete
picture, not of Man but of the bourgeois man" (139)?
●​ What paradox does Arendt identify at the core of Hobbes' account of why humans (or,
more accurately, men) create states? What does this paradox tell us about the purpose of
a text like Leviathan: does Hobbes explain how sovereign rulers come to be, in the newly
emerging bourgeois society, or does he instead articulate a new vision of "man" and his
motivations, one that is in harmony with bourgeois (as opposed to
monarchical/aristocratic) society?
●​ How does "law" operate in Hobbes' bourgeois society, according to Arendt? Does
Hobbes' account of what "law" is resemble any of the three methods we've examined thus
far (positivism, natural law, sociolegal approaches)? Why or why not?
●​ Why does Arendt describe Hobbes' philosophy as foreshadowing 19th century
imperialism (143 forwards)? Do you find her argument convincing? Why or why not?
Module 2: Law as sovereign ruler(r) | January 24th, 2025

Borrows “Beauce it does not make sense” sovereignty power in the case of Degamuukw v
the queen 1997

●​ The Supreme Court of Canada ruled in Delgamuukw v. The Queen (1997) that Aboriginal
title crystallized upon the assertion of Crown sovereignty, effectively transforming
Indigenous land relationships.
○​ Sovereignty was presented as a powerful force that altered Indigenous possession,
allowing Crown claims to supersede Indigenous rights.
○​ The Court acknowledged historical injustices but maintained Crown sovereignty
as the basis for resolving land disputes.
●​ The Gitksan and Wet’suwet’en peoples sought recognition of Aboriginal title and
self-government over 58,000 km² in British Columbia.
○​ Their governance structure involved Houses, Clans, hereditary chiefs, and Feasts,
which solidified land rights and social organization.
○​ Despite recognizing these traditions, the trial judge rejected their claims, citing
colonial laws and Crown sovereignty.
●​ The Court of Appeal upheld the trial judge’s decision, maintaining that Aboriginal rights
were non-proprietary and subject to Crown governance.
○​ British sovereignty was deemed to have negated Indigenous claims upon the
establishment of British Columbia and Confederation.
●​ The Supreme Court addressed procedural issues, emphasizing that Indigenous claims
must conform to Canadian legal frameworks.
○​ Changes in pleadings and a formalistic approach to legal procedure limited the
ability of Indigenous peoples to present their cases effectively.
●​ The Court acknowledged the importance of adapting evidentiary rules to respect oral
histories and Indigenous perspectives.
○​ However, these measures were overshadowed by the need to reconcile Indigenous
rights with Crown sovereignty, limiting their impact.
●​ Aboriginal title was characterized as sui generis, blending Indigenous and common law
perspectives.
○​ This framing prioritized reconciliation with Crown sovereignty, reducing
Indigenous rights to a secondary status.
●​ The Court justified limitations on Aboriginal title by citing broader societal objectives,
such as economic development and infrastructure projects.
○​ This approach reinforced the Crown’s ability to infringe upon Indigenous rights to
serve non-Indigenous interests.
●​ The Court's stance on self-government mirrored its treatment of land claims, rejecting
broad assertions of Indigenous sovereignty.
 ○​ Crown sovereignty remained the foundation for legal recognition, further
marginalizing Indigenous governance systems.
●​ The decision highlighted the entrenched power dynamics in Canadian law, where Crown
sovereignty overrides Indigenous entitlements.
○​ The ruling perpetuated historical injustices and limited the potential for
equitable recognition of Indigenous rights.

●​ Borrows articulates the paradox underlying the SCC's logic that aboriginal title
"crystallized" at the time that Crown sovereignty was asserted. How does this paradox
mirror the paradox that Arendt identifies in Hobbes' account of why it is that sovereign
rulers come to exercise power over societies?
○​ Sovereignty - mere assertion by one nation is said to bring another’s land rights to
a ‘definite and permanent form’
■​ Use and occupation are found to be extinguished, infringed, or made
subject to another’s designs
○​ Delgammuukw - Court’s unreflective acceptance of crowns sovereignty
perpetuates the historical injustice suffered by aboriginal peoples at the hands of
the colonizers who failed to respect the distinctive cultures of pre existing
aboriginal societies
○​ evaluating the Supreme Court’s attempt to avoid the risk of
‘perpetuating historical injustices that aboriginal people suffered at the
hands of the colonizers’, the period of Gitksan and Wet’suwet’en
presence in the area was for ‘a long, long time prior to sovereign

●​ How would you characterize Borrows' method? Does it fit within any of the models that
we have discussed (positivist, natural law, socio legal)? Why or why not?

●​ Does the SCC's concept of, or explanation of, Crown sovereignty (as analyzed by
Borrows) and its diminished concept of Indigenous self-government reflect elements of
liberalism, as discussed by Valverde? If so, which ones
○​ In its decision the Supreme Court did not substantially depart from the
previous courts’ reliance on assertions of British sovereignty in
grounding its discussion of aboriginal title. It found that ‘[a]boriginal title is a
burden on the Crown’s underlying title’
■​ Furthermore, it did not recognize or affirm Gitksan and Wet’su wet’en
ownership or jurisdiction over their territories
 ●​ Is Delgamuukw, and the SCC's description of how aboriginal title relates to Crown
sovereignty, an example of the never-ending acquisition of property and power that
Arendt associates with Hobbes? Why or why not?

Module 3: Law as courts and their judgments | January 28th, 2025

Langdell’s orthodoxy p. 46-61

●​ Introduction: Langdell’s Role in Modern American Legal Thought

○​ 1870: A pivotal year in American legal thought.
■​ Oliver Wendell Holmes, Jr. writes, “The merit of the common law is that it
decides the case first and determines the principle afterward.”
■​ Christopher Columbus Langdell becomes Harvard Law Dean and
implements the case method.
○​ Langdell's teaching method and institutional reforms established the model for
modern legal education:
■​ Shifted legal instruction from abstract principles to case analysis.
■​ Created the three-year law school model with a research-oriented faculty.
○​ Classical orthodoxy emerged from Langdell’s approach, influencing legal though
●​ 1. Classical Orthodoxy: The Foundations of Langdell’s Legal Science
○​ Law is a self-contained system of rules and principles.
■​ The legal scientist discovers pre-existing principles through case law
analysis.
■​ Courts apply principles logically to resolve disputes.
○​ Law students must learn by analyzing cases, not by memorizing legal doctrines.
■​ The case method teaches students how to extract legal principles from
judicial decisions.
○​ Langdell’s approach assumes that courts do not create law; they discover it.
■​ Judicial reasoning should be logical, consistent, and based on formal legal
categories.
○​ Langdell’s influence on legal education
■​ Harvard became the model for other law schools.
■​ The Langdellian approach shaped American legal thought for decades.
●​ 2. The Science of Law: Legal Science and the Geometry Analogy
○​ Langdell compared law to Euclidean geometry.
■​ Just as geometry derives theorems from axioms, law derives rules from
principles.
■​ Legal reasoning should be logical and demonstrative.
 ○​ Precedents are like scientific observations—they provide data for generalizing
principles.
■​ Once a principle is established, future cases should be decided based on
logical deductions from it.
○​ Law should be comprehensive: every case should have a clear legal answer.
■​ Law should be complete: all rules should derive logically from
fundamental principles.
■​ Legal reasoning should be formal: judges should apply rules without
external considerations (e.g., morality, policy).
○​ Limits of Langdell’s approach
■​ Unlike geometry, law is not purely abstract; it operates within a social and
historical context.
■​ Critics argue that Langdell’s system ignores the evolving nature of law.
●​ 3. Holmes’ Critique: The Challenge to Langdell’s Orthodoxy
●​ Holmes argued that law is shaped by experience, not logic.
○​ Judges inevitably consider social policy and practical consequences.
●​ Famous critique: "The life of the law has not been logic; it has been
experience."
○​ Holmes believed Langdell treated law as a closed system when it is
actually shaped by human affairs.
○​ Legal rules evolve based on judicial reasoning and social needs.
●​ The mailbox rule example
○​ Langdell opposed the mailbox rule (which makes acceptance binding
when a letter is mailed).
○​ He argued that acceptance must be received to be valid, based on strict
doctrinal reasoning.
○​ Holmes saw this as an example of "legal theology"—formalism detached
from reality.
●​ 4. The Rise of Legal Realism: A Rejection of Classical Orthodoxy
○​ Key ideas of Legal Realism
■​ Legal rules do not dictate outcomes; judicial discretion plays a role.
■​ Courts are influenced by social, political, and economic factors.
■​ Law should be evaluated in terms of its real-world effects.
○​ Realist critique of Langdell’s system
■​ Langdell’s model assumes legal principles are fixed and objective.
■​ Legal Realists argued that law is fluid and adaptable.
■​ Judges do not simply "apply" law—they shape it based on policy
considerations.
○​ The decline of classical orthodoxy
 ■​ By the 20th century, legal scholars increasingly rejected Langdell’s rigid
framework.
■​ The emphasis shifted from abstract doctrine to policy-driven legal
reasoning.
●​ 5. The Legacy of Classical Orthodoxy
○​ Langdell’s lasting impact
■​ The case method remains dominant in legal education.
■​ The three-year law school model persists.
■​ The idea of law as a science still influences legal scholarship.
○​ Neo-Orthodoxy: Revival of Langdellian Ideas?
■​ Some modern legal scholars advocate a return to structured,
principle-based legal reasoning.
■​ Law and economics movement uses formal models, echoing Langdell’s
scientific approach.
■​ The debate between formalism and pragmatism continues in legal theory.
●​ Conclusion: The Ongoing Debate Between Formalism and Realism
○​ Langdell’s system was revolutionary but flawed in its rigidity.
○​ Holmes and the Legal Realists reshaped legal thought by emphasizing experience
and social context.
○​ Modern legal thought continues to wrestle with the tension between structured
legal principles and pragmatic decision-making.
○​ The question remains: Should law be a science, a tool for justice, or a balance of
both?

Kennedy, Legal Consciousness (1998) 7-14

●​ Chapter 1: Legal Consciousness

○​ The purpose of the study is to examine the rise and fall of Classical Legal
Thought in the U.S.
■​ Classical legal thought emerged between 1850–1885, dominated from
1885–1940, and then declined.
■​ Unlike previous systems, it sought to rationally order the entire legal
universe
■​ Rejected natural rights, utilitarianism, and earlier instrumentalist legal
approaches.
■​ Legal elites viewed law as a science, superior to philosophy and
democratic politics.
○​ Liberal Historiography & Its Limits
■​ Common liberal historical view:
●​ Legal elites allied with conservative business interests and
politicians.
 ●​ They used law to suppress workers, farmers, and the public
interest.
■​ Kennedy challenges this as too simplistic:
●​ Argues that legal thought had relative autonomy from politics and
economics.
●​ Legal ideas evolved independently, though they were influenced
by broader structures.
○​ Before the Civil War, law was divided into separate categories:
■​ Private law: governed relations between individuals.
■​ Public law: governed the state’s role.
■​ Constitutional law: controlled government powers.
○​ Classical Legal Thought unified these categories under one general framework:
■​ Each legal relationship became a delegation of legal powers that was
absolute within its sphere.
■​ Courts’ main job was to police the boundaries between these spheres.
●​ Chapter 2: The Rise of Classical Legal Thought
○​ The Classical System
■​ Integrated legal science, natural rights constitutionalism, and Classical
Economics.
■​ Judges enforced rules ensuring economic competition among private
actors.
■​ The judiciary played a central role in maintaining economic and legal
order.
○​ Judicial Activism and Its Role
■​ Judicial activism ≠ politically liberal or conservative.
■​ Courts in different periods used activism to support both property rights
(1890-1937) and equality (1955-1970).
■​ Judges justified activism as reason-based rather than driven by political
majorities.
○​ The Decline of Classical Thought
■​ Critics saw the judiciary as overly political, protecting business elites.
●​ Progressives wanted more legislative power over economic
regulation.
■​ Economic & Philosophical Shifts (1900s-1930s):
●​ Marginal utility economics replaced Classical Economics.
●​ Pragmatism undermined faith in objective legal reasoning.
●​ Law was no longer seen as a self-contained system, but as deeply
tied to social and economic forces.
●​ Chapter 3: The Structure of Classical Legal Thought
○​ Legal professionals shared a common worldview beyond mere legal rules.
 ■​ Their thinking was shaped by implicit assumptions about law’s role in
society.
■​ These assumptions changed over time, influencing judicial decisions and
legal practice.
○​ Key Features of Classical Legal Thought
■​ Law as a system of logically ordered principles:
●​ Legal rules derived from abstract principles, similar to scientific
reasoning.
●​ Courts applied consistent, objective rules to resolve disputes.
■​ Absolute Powers Within Defined Spheres:
●​ Law recognized distinct spheres of authority (e.g., private property
vs. government power).
●​ Judges ensured that no actor exceeded its delegated authority.
■​ Judges as Neutral Arbiters:
●​ Unlike legislators or executives, judges were seen as above
politics.
●​ Their role was to apply legal science, not personal or political
beliefs.
●​ Chapter 4: The Role of Federalism & Property Rights
○​ Two Parallel Systems in Classical Thought
■​ Federalism: Division of power between federal and state governments.
■​ Property & Contracts: Absolute private rights vs. legislative regulation.
○​ Courts applied the same formal reasoning to both systems:
■​ Property disputes were seen like boundary disputes between states.
■​ Both involved jurisdictional limits that judges had to enforce.
○​ The Judicial Role in Economic Order
■​ Judges ensured that:
●​ Private actors retained economic autonomy.
●​ Legislators did not interfere excessively in markets.
■​ This reinforced laissez-faire economics and limited government
regulation.
●​ Chapter 5: The Decline of Classical Legal Thought
○​ Challenges from Legal Realism (1920s-1930s)
■​ Realists argued that:
●​ Law was not a closed system of logical principles.
●​ Judicial decisions were influenced by policy, economics, and social
context.
■​ Courts began considering social justice and economic fairness, rather than
just formal legal principles.
○​ New Theories Undermining Classical Legal Thought
 ■​ Marginal Utility Economics:
●​ Replaced rigid Classical Economic theory.
●​ Showed that markets do not always self-correct.
■​ American Pragmatism (e.g., John Dewey):
●​ Rejected rigid, abstract reasoning.
●​ Emphasized that law must evolve based on experience and
consequences.
■​ Rise of Government Regulation:
●​ The New Deal (1930s) expanded federal intervention in the
economy.
●​ Courts shifted from protecting contracts to upholding regulatory
policies.
●​ Chapter 6: The Disintegration of Classical Legal Thought
●​ No single dominant legal framework replaced Classical Thought.
○​ Law divided into multiple, autonomous categories
■​ e.g., constitutional law, labor law, antitrust law
○​ Judges no longer had a single, unified method for legal reasoning.
●​ Judicial Role Changed
○​ Courts became more willing to adapt law to changing social conditions.
○​ Judicial activism continued, but often in a policy-driven rather than
formalistic manner.
●​ Kennedy’s Key Argument
○​ The decline of Classical Legal Thought was not an aberration.
○​ Instead, it was part of a necessary transformation leading to today’s
fragmented legal system.
○​ Modern law is not a return to pre-Classical ideas, but a new, disordered
legal reality
●​ Final Thoughts: Legacy of Classical Legal Thought
○​ The idea of law as a system still influences legal education.
■​ Many legal scholars and judges still seek objective legal principles, even if
they acknowledge outside influences.
○​ The Debate Continues
■​ Tension remains between:
●​ Formalists (who seek structured legal reasoning).
●​ Realists (who emphasize law’s role in shaping policy and society).
■​ The decline of Classical Legal Thought did not resolve this debate—it
only reshaped it.

Holmes, The Path of Law (1897), 21-26, 29-32 (operations of the law), 34-36 (burning
questions)
●​ Oliver Wendell Holmes Jr. was born in 1841 into a prominent Boston family.
○​ His father was a well-known doctor and writer, authoring The Autocrat of the
Breakfast Table (1858).
○​ His mother, Amelia Lee Jackson, was a notable Boston social figure.
○​ He grew up surrounded by intellectuals, including Ralph Waldo Emerson, who
inspired his interest in philosophy.
○​ Holmes attended private schools and then Harvard College from 1857 to 1861.
●​ Volunteered for the Massachusetts militia during the Civil War, serving as a lieutenant
and later captain.
○​ Suffered serious injuries during his three years of service.
○​ After the war, enrolled in Harvard Law School and earned his degree in 1866.
●​ Briefly practiced law in Boston before trying to establish himself as a writer.
○​ Edited James Kent’s Commentaries on American Law and wrote essays, reviews,
and poetry.
○​ Financial constraints led him back to law, where he worked in commercial and
admiralty law for a decade.
●​ In his spare time, he wrote legal scholarship, culminating in The Common Law (1881), a
significant work that established his reputation.
○​ Appointed to Harvard Law School faculty in 1882 and later to the Massachusetts
Supreme Judicial Court, where he served for 20 years.
●​ "The Path of the Law" (1897)
○​ Delivered a notable lecture at Boston University Law School, later published in
Harvard Law Review.
○​ The essay became a foundational piece in American legal thought.
○​ Key ideas:
■​ Law is best understood as predictions of what courts will do, not abstract
principles or ethical axioms.
■​ History is vital in understanding law, but rules should evolve based on
their social utility rather than blind tradition.
■​ Legal practice can be philosophically and spiritually enriching, connecting
practitioners to universal truths.
●​ Shifted legal analysis focus from legislatures to courts, emphasizing judicial decisions as
the essence of law.
○​ Advocated for evaluating legal rules by their social welfare impact rather than
fairness.
○​ Presented legal practice as a philosophical pursuit, blending natural law with
practical application.
●​ Studying law is not about mysteries but practical knowledge for appearing before judges
or advising people to avoid legal troubles.
 ○​ Law is a profession because judges, empowered by society, enforce decisions
backed by the state’s force.
○​ People hire lawyers to avoid conflict with this power, making legal practice a
business of prediction.
●​ The study of law involves understanding court judgments, statutes, and precedents, often
documented over centuries.
○​ Legal reports, statutes, and treatises serve as "prophecies" of when the law will
intervene.
○​ Lawyers simplify cases, excluding irrelevant details, to predict how the law will
act.
●​ Legal rights and duties are essentially predictions about consequences enforced by courts.
○​ A legal duty arises from the expectation that a breach will lead to a penalty.
○​ Generalizing these predictions creates a structured legal system that can be
mastered over time.
●​ The increasing number of legal reports is manageable, as the core of the law is often
restated in each generation.
○​ Earlier reports serve primarily a historical purpose and are not indispensable for
current legal practice.
●​ Understanding law requires distinguishing it from morality.
○​ Both good and bad individuals have practical reasons to avoid penalties enforced
by the law.
○​ The law reflects societal morality but operates within specific boundaries and
does not always align with moral ideals.
●​ Legal language often borrows from moral terminology, leading to potential confusion.
○​ Terms like rights, duties, malice, and negligence may be used differently in moral
and legal contexts.
○​ Assuming moral rights equate to legal rights can lead to fallacies since laws often
deviate from the moral consensus.
●​ Laws are sometimes influenced by practical considerations rather than moral principles.
○​ Cultural habits and societal norms at specific times shape the limits of legal
enforcement.
○​ For example, even minor changes, like increasing the cost of beer, might provoke
societal resistance in certain populations.
●​ The author highlights the risk of confusing morality with law, suggesting the need for
legal language devoid of moral implications to improve clarity
○​ While this may sacrifice historical and ethical resonance, it would remove
unnecessary confusion.
●​ Laws evolve through forces such as societal norms, sovereign authority, and judicial
interpretation. The focus should be on understanding the principles driving legal
development, rather than solely attributing it to sovereign power or logic.
 ●​ A common fallacy is believing that law develops purely through logical deduction. While
logic is integral to legal reasoning, decisions often rely on subjective judgments about
policy, community practices, or social attitudes.
●​ Legal reasoning and judicial decisions, while appearing logical, often reflect underlying,
unconscious judgments about competing values and societal priorities. These decisions
embody preferences of specific times and contexts rather than timeless truths.
●​ Judicial dissent is sometimes misunderstood as a lack of logical rigor. However, differing
judgments often arise from varied perspectives on competing legislative or social values
rather than errors in reasoning.
●​ The law is influenced by shifting societal attitudes
○​ For example, doctrines like liability in tort law evolve based on public sentiment
and economic considerations
○​ Liability for workplace injuries often reflects the balance between public safety
and economic feasibility.
●​ Judges have a responsibility to weigh social advantages when making decision
○​ Often, judicial decisions are influenced by societal fears or biases (e.g., fears of
socialism historically influenced rulings), though these influences remain
unacknowledged.
●​ The judicial system can reflect outdated economic or social doctrines due to the
entrenched perspectives of legal professionals
○​ This can result in resistance to legislative changes or reliance on interpretations of
constitutions that align with older ideologies.
●​ Lawyers' training focuses heavily on logic and deductive reasoning but often neglects the
broader social and economic implications of legal decisions. A more explicit
acknowledgment of these factors could improve judicial outcomes.

Watch short clips on New York bakeshop conditions (2.5 minutes)

●​ Lohcner v New York: Bakery conditions

○​ Bakery condition at turn of 20th century
○​ Bakery workers were working in underground cellar bakeries, were they had to
toil for hours producing bread to feed fast and growing city
○​ They would come down to these cellars and spend their lives here
○​ Everything in the room grimey with coal dust
■​ Bakery owners breathing this in all day
○​ Lochner v. New York struck down a New York state law that created a 10-hour
workday for bakers at the turn of the 20th century. The law was intended to
protect workers and create a more sanitary environment in New York City
 bakeries. We go inside an old bakery to learn more about working conditions at
the time.
○​ Not sanitary conditions for product or workers themselves

Lochner v New York, 198 US 45 (1905), skim the facts (45-52) and Peckham J’s majority
decision (52-64), then read Holmes’ dissent (74-76)

Lochner v New York (1905)

Facts:

●​ The state of New York enacted a statute known as the Bakeshop Act, which forbid
bakers to work more than 60 hours a week or 10 hours a day
●​ Lochner was accused of permitting an employee to work more than 60 hours in one
week
●​ The first charge resulted in a fine of $25, and a second charge a few years later resulted
in a fine of $50
●​ While Lochner did not challenge his first conviction, he appealed the second, but was
denied in state court
●​ Before the Supreme Court, he argued that the Fourteenth Amendment should have been
interpreted to contain the freedom to contract among the rights encompassed by
substantive due process.

Reasoning:

Majority Opinion (5–4) – Justice Rufus Peckham

●​ The Supreme Court struck down the Bakeshop Act’s hours provision as
unconstitutional.
○​ It violated freedom of contract, which the court had recognized in Allgeyer v.
Louisiana (1897) as part of the liberty protected by the Fourteenth
Amendment’s due process clause.
○​ The due process clause prevents states from depriving individuals of life,
liberty, or property without due process of law.
●​ Restricting bakers' work hours was not a valid public health measure.
○​ Peckham argued:
■​ Clean and safe bread does not depend on whether a baker works 10
hours per day or 60 hours per week.
■​ The law did not serve to protect workers in dangerous occupations
 (unlike the law upheld in Holden v. Hardy (1898), which applied to
miners).
■​ No strong evidence proved that baking was a dangerous profession.
●​ Since the law did not qualify as a health and safety measure, it was not a valid exercise
of the police power.

Dissenting

Justice John Marshall Harlan (Joined by Justices White & Day)

●​ The police power of the state allows it to protect public health, safety, and welfare.
○​ The Fourteenth Amendment was not meant to interfere with this power.
○​ Liberty of contract exists but must be subordinate to the police power when
necessary to protect the public.

Justice Oliver Wendell Holmes, Jr. (Separate Dissent)

●​ Main Criticism of the Majority Opinion:

○​ The ruling was based on an economic theory (laissez-faire capitalism) that
many Americans did not support.
○​ The state’s right to regulate contracts was well established in history (e.g., laws
against usury or Sunday work).
○​ The Constitution should not favor a specific economic ideology (whether
paternalism or laissez-faire).
●​ Famous quote:
○​ “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social
Statics” (a book advocating laissez-faire economics).
○​ The majority's interpretation of liberty was too rigid—laws should reflect the
dominant opinion of the time.
○​ Since reasonable people could see the hours law as a health measure, it should
have been upheld.
●​

Derrick Bell, Racial Realism (1992) 363-370, 374-376

●​ Black Americans have struggled for freedom, justice, and dignity since the nation's
founding.
 ○​ Inspiring leaders emerged, urging racial equality through legal and judicial means.
○​ Despite civil rights movements and legislative victories, racial equality remains
elusive.
○​ Aiming for equality in a persistently racist society often leads to frustration and
despair.
●​ A new approach, "Racial Realism," challenges the idea of racial equality as the ultimate
goal.
○​ Racial Realism focuses on addressing systemic racism realistically.
○​ It views the law and courts as tools that preserve the status quo but can
occasionally amplify marginalized voices.
●​ Racial Realism draws inspiration from "Legal Realism," a movement in the early 20th
century.
○​ Legal Realists rejected the belief that law is a logical, objective system.
○​ They argued that judges make decisions based on personal values and social
factors.
○​ Legal Realists emphasized the function of law over abstract principles.
○​ They critiqued "precedent," noting that judges interpret facts subjectively to
justify their desired outcomes.
●​ Legal Realists challenged the idea of private and public rights as objective and separate.
○​ They argued these concepts masked underlying political and economic power
dynamics.
○​ Decisions justified as "rights-based" were seen as result-driven and subjective.
●​ Example: Regents of the University of California v. Bakke
○​ The Court ruled that affirmative action policies cannot favor minority candidates
over whites based on race.
○​ This decision ignored historical discrimination, systemic inequities, and social
realities.
○​ A Realist approach would have considered factors like inadequate urban schools
and biased standardized tests.
●​ The Supreme Court often protects white privilege through decisions like Bakke.
○​ Abstract concepts like "equality" obscure policy choices and perpetuate
inequality.
○​ Clarence Thomas's appointment to the Court symbolizes this trend.
○​ Critics liken his role to historical practices of promoting Black individuals who
align with oppressive systems.
●​ Broader implications:
○​ Increasing racial discrimination reflects white America’s fear of losing
dominance.
○​ Economic struggles and political setbacks have worsened Black Americans'
status.
 ○​ The appointment of figures like Clarence Thomas reinforces systemic oppression
rather than challenging it.
●​ Legal precedents that seemed permanent have often been overturned, ignored, or
modified, showing their instability.
●​ Although "Jim Crow" laws were eliminated, many Black Americans face even deeper
systemic poverty and despair than during the "Separate but Equal" era.
○​ Public segregation signs are gone, but modern racial barriers remain subtle yet
equally oppressive.
○​ The lack of visible discrimination fosters a false sense of racial neutrality, leading
many white Americans to believe racism no longer exists.
●​ Black individuals experiencing rejection (e.g., in jobs or promotions) often question
whether it was due to race or personal shortcomings.
○​ This uncertainty creates frustration and eventually despair.
●​ Despite progress, Black Americans remain vulnerable to racially motivated exclusion or
restriction, regardless of their prestige or position.
●​ The condition of many Black Americans today reflects ongoing racial inequality.
○​ Statistical data reveals disparities in economic, social, and psychological
well-being.
○​ Reports of these disparities rarely impact policymakers or society at large.
●​ The "We Have a Dream" optimism of the 1960s has shifted into a harsh reality of racial
inequality for many in the 1990s.
○​ Psychological harm from lack of opportunity often outweighs economic or social
losses.
●​ Maya Angelou described the psychological toll on Black individuals, leading to self-hate
and violence within their own communities.
●​ Traditional reliance on racial remedies (e.g., civil rights laws) may have limited
recognition of how discrimination evolves into subtler forms.
○​ Legal rights often address one type of discrimination while allowing others to
emerge.
●​ Civil rights goals of racial equality and opportunity must be redefined.
○​ The traditional belief that the Constitution guarantees racial equality after the
Civil War Amendments fails to address persistent inequalities.
●​ Formalist legal models still dominate despite the Realist critique.
○​ Judges can advocate racial equality while issuing rulings that harm Black
Americans, as seen in Bakke.
○​ Race-conscious policies, such as affirmative action, are often framed as contrary
to racial equality.
●​ The formalist legal approach legitimizes existing power structures and prevents
significant challenges to inequality.
●​ History highlights the limitations of equality theory.
 ○​ The Constitution originally protected property, including enslaved Africans.
○​ Political motivations behind the Civil War Amendments prioritized self-interest,
making enforcement of racial equality inconsistent over time.

Module 4 | Law as Reason, Rationality, Rule of Law (or Natural Law, part I) | February
4th, 2025

Herzog, A Short History of European Law: The Last Two and a Half Millennia (2017),
152-154

●​ During the early modern period, various european countries began engaging in overseas
expansion
○​ These early expeditions were followed by subsequent voyages, eventually leading
to the extension of European heremony to parts of Africa, Asia, and the Americas
●​ The intense encounter with non Europeans, as well as the need to settle rivalries among
europeans overseas, led to the renewed use of Roman law, spurred discussions regarding
natural law, and made European law assume the trappings of universality
○​ Natural law discussions increased, leading to the idea that European law could be
universal.
●​ Roman judges didn’t actually study different societies but instead assumed that rational
laws must be universal
●​ After the Roman Empire became Christian, natural law was no longer just about reason
but about God’s divine order.
●​ Natural law became a standard for judging human laws, meaning people could oppose
unjust governments based on religious principles.

Tamanaha, The History and Elements of the Rule of Law (2012) 232-247

●​ The rule of law is one of the most powerful political ideals today.
○​ It is widely accepted as essential for government legitimacy.
○​ Despite its popularity, the concept is elusive and difficult to define.
■​ Legal scholars call it an “essentially contested concept” because people
interpret it differently.
■​ Its broad appeal comes from the fact that almost everyone supports it,
even if they define it differently.
●​ The text explores three key aspects of the rule of law:
○​ 1. Government is limited by law.
○​ 2. Formal legality (laws must be clear, predictable, and applied consistently).
○​ 3. The idea that law, not individual rulers, should govern society.
■​ The rule of law, not man
●​ The rule of law means that both government officials and citizens are bound by and abide
by the law.
○​ This definition is simple but has important implications:
■​ There must be a system of laws that are publicly known and understood.
■​ Laws must be clear, enforceable, and possible to follow.
■​ Laws must apply equally to all people.
■​ Legal institutions must enforce laws consistently
○​ Without these conditions, the rule of law cannot exist.
●​ Some people argue the rule of law must include democracy and human rights, but the
author disagrees.
○​ Why exclude them?
■​ The rule of law is about legality—it does not dictate how laws are made or
what they should contain.
■​ Including democracy and human rights assumes only liberal democracies
have the rule of law, which is incorrect.
■​ John Rawls (a major political philosopher) argued that even
non-democratic societies can be legitimate if they provide basic rights and
justice.
■​ The rule of law can exist without democracy or a full set of human rights.
■​ Including democracy and human rights in the definition of the rule of law
makes it too broad and politically biased.
●​ A key principle of the rule of law is that even rulers and government officials must obey
the law.
●​ This idea is ancient, however it creates a paradox:
○​ Governments create laws—so how can they be bound by them?
●​ Formal legality means that laws must:
○​ Be clear and publicly known.
○​ Be applied equally to all people.
○​ Be predictable so people can plan their actions.
○​ Not demand the impossible.
●​ Why is formal legality important?
○​ It increases freedom by allowing people to know what they can and cannot do.
○​ It supports capitalism by making contracts and property rights predictable.
●​ Problems with formal legality:
●​ Over- and under-inclusiveness: Laws may be too strict or too broad.
●​ Bad laws can still be legal: Apartheid and segregation followed formal legality
but were unjust.
●​ Some areas need flexibility: Not all government actions can be strictly rule-based.
●​ The ideal of the rule of law is that decisions should be based on laws, not personal
opinions or biases.
 ○​ However, there is a problem:
■​ Laws are interpreted and enforced by people, which means human
judgment always plays a role.
■​ Judges are supposed to be neutral, but they can still be biased or political.
○​ The modern solution:
■​ Independent judiciary: Judges should follow legal principles, not political
influence.
■​ Legal training: Judges must be experts in law and impartial
decision-making.
○​ The danger of judicial overreach:
■​ Some worry that judges have too much power, shaping laws beyond their
intended role.
■​ Judicial decisions must balance fairness and legal consistency.
●​ The most fundamental aspect of the rule of law:
○​ When the government exercises power, it must do so according to pre-existing
legal rules.
○​ If a government violates the law, independent courts must have the power to
intervene.
○​ Government officials must accept and follow court rulings.
●​ No nation perfectly follows the rule of law, but some fall short to the point where they
cannot claim to follow it at all.
●​ The rule of law only works if society believes in it.
○​ People must accept the law as fair and legitimate.
○​ If people see the legal system as corrupt, unfair, or biased, they will not follow it.
●​ In many societies, the legal system is distrusted due to:
○​ Colonial history (laws used to control populations).
○​ Corrupt or biased judges.
○​ Laws that favor elites over ordinary citizens.
●​ Legal trust must be built over generations:
○​ The rule of law survives only if people believe in it and see it working for them.
○​ Each new generation must be taught to respect the law, or the system will weaken.

Fuller, The Morality of Law (1969) 33-41

●​ The chapter discusses the fundamental moral principles that make law possible, using an
allegory about a monarch named Rex who repeatedly fails in his attempts to create a
functioning legal system.
●​ Rex’s Failures in Lawmaking
 ○​ Rex, an ambitious reformer, abolishes all existing laws to create a new legal
system but lacks the ability to make general legal principles.
○​ He first attempts to govern by deciding individual cases without a guiding legal
framework, but this results in arbitrary and unpredictable rulings.
○​ Next, he drafts a legal code but keeps it secret from his subjects, preventing them
from knowing how to act according to the law.
○​ When he finally publishes a code, it is so obscure that no one can understand it.
○​ After revising the code for clarity, contradictions within the laws become
apparent, making them impossible to follow consistently.
○​ Another revision removes contradictions but introduces excessively harsh and
unrealistic requirements, making compliance impossible.
○​ A further revision results in a clear and enforceable code, but constant
amendments make the law unstable and unreliable.
○​ Finally, Rex personally takes over judicial decisions, developing a coherent body
of reasoning but completely disregarding the legal code he created. This destroys
the legitimacy of the law.
○​ His failures culminate in discontent and near rebellion. Upon his death, his
successor, Rex II, abandons law entirely in favor of governance by public
relations and psychological manipulation.
●​ The Eight Ways to Fail in Lawmaking
○​ (1) Failing to create rules, leading to arbitrary decisions.
○​ (2) Keeping rules secret, preventing compliance.
○​ (3) Using retroactive legislation, undermining trust in laws.
○​ (4) Making laws incomprehensible.
○​ (5) Enacting contradictory laws.
○​ (6) Imposing impossible demands on citizens.
○​ (7) Constantly changing laws, creating instability.
○​ (8) Failing to enforce laws as written, leading to a disconnect between written
rules and their actual application.
●​ Consequences of These Failures
○​ A legal system that fails in any of these ways ceases to function as law.
○​ People cannot have a moral obligation to obey rules that do not exist, are secret,
contradict each other, or require the impossible.
○​ If laws are unpredictably changed or ignored by those in power, they lose
legitimacy.
○​ Government has an implicit agreement with citizens: it provides stable and
knowable rules, and in return, citizens follow them. When the government breaks
this agreement, legal authority collapses.
●​ Lessons from History
 ○​ The deterioration of legality under Hitler’s regime illustrates how an erosion of
legal principles leads to lawlessness.
○​ Laws became selectively applied, secret rules governed key matters, and courts
ignored established laws when politically convenient.
○​ In such cases, citizens must determine whether they still owe loyalty to the legal
system.
●​ Legal Excellence as an Aspiration
○​ The opposite of these eight failures is a legal ideal where laws are clear, public,
stable, consistent, reasonable, and properly enforced.
○​ Absolute perfection is unrealistic, but striving toward these principles enhances
the legitimacy and effectiveness of legal systems.

Nedelsky, Embodied Diversity and the Challenges to Law (1997) 93-117

●​ The article challenges traditional notions of impartiality, neutrality, and the rule of law,
arguing that diversity disrupts conventional legal concepts and requires new
understandings.
●​ Traditional legal thought assumes impartiality based on unity and abstraction, excluding
factors like desire, affectivity, and embodiment.
○​ Feminist theorists Iris Young, Elizabeth Spelman, and Carol Gilligan critique this
view, arguing that impartiality and neutrality are built on exclusionary
frameworks.
○​ Neurologist Antonio Damasio’s work on emotions and reasoning supports the
feminist claim that affect and the body play a fundamental role in judgment.
○​ Exposure to diversity transforms affective responses and enhances judicial
deliberation, leading to a new conception of impartiality grounded in equality.
●​ Feminist Challenges to Conventional Legal Concepts
○​ Iris Young
■​ Traditional impartiality excludes desire, affectivity, and the body to
maintain a false unity.
■​ This logic of identity suppresses difference and maintains hierarchical
power structures.
■​ Universality assumes an essential sameness among people, which ignores
real differences.
■​ Exclusion of the body in reasoning leads to an inability to evaluate
particular moral contexts.
■​ Women and marginalized groups have historically been seen as
repositories of affect and thus excluded from the civic public.
■​ The challenge is to either abandon impartiality or redefine it to embrace
diversity.
○​ Elizabeth Spelman
 ■​ Gender is constructed differently across race and class, making the
category of “woman” unstable.
■​ White women’s experiences cannot stand in for all women, just as the
male norm does not represent all people.
■​ Identity categories are fractured, raising problems for legal reasoning that
depends on general rules.
■​ Law presupposes that individuals are interchangeable rights-bearers, but
real-life contexts complicate this view.
■​ If gender, race, and class interact in complex ways, then the very idea of
universal legal categories becomes untenable.
○​ Carol Gilligan
■​ The “ethic of care” contrasts with the dominant “ethic of justice.”
■​ The ethic of care prioritizes relationships, context, and responsiveness
over abstract principles.
■​ Legal reasoning has historically devalued the ethic of care, reinforcing
gendered hierarchies.
■​ Attempts to “add on” the ethic of care fail to address its fundamental
challenge to dominant legal frameworks.
●​ Emotions and Reasoning
○​ Damasio’s Somatic Marker Hypothesis
■​ Emotions are essential to reasoning; judgment requires affective
responses.
■​ Patients with damage to emotion-processing areas of the brain struggle
with decision-making.
■​ Rational decision-making depends on emotional associations that guide
choices.
■​ Kantian notions of pure rationality are unrealistic; reason and affect must
work together.
■​ Legal reasoning must integrate the body and affect, recognizing that
cognition is embodied.
○​ Somatic Markers and Failures of Judgment
■​ Certain judicial failures stem from inappropriate affective responses rather
than flawed logic.
■​ Examples of judicial bias illustrate how entrenched attitudes distort
judgment.
■​ A judge viewed a three-year-old girl as “sexually aggressive,” failing to
grasp the gravity of child abuse.
■​ Another judge described rape as a “normal” reaction to societal
permissiveness, shifting blame onto victims.
 ■​ A judge sentenced a man lightly for murdering two gay men, equating
their value with prostitutes.
■​ Legal systems must address inappropriate affective markers to ensure fair
judgments.
○​ Rethinking Judgment and Impartiality
■​ Hannah Arendt’s View on Judgment
●​ Judgment is subjective but valid within a community of judging
subjects.
●​ True impartiality arises from taking multiple perspectives into
account, not from abstraction.
●​ Diversity in judicial education and deliberation is necessary to
foster broad-minded judgment.
■​ The Role of Experience in Judgment
●​ Exposure to different perspectives shifts affective starting points.
●​ Diversity in the judiciary is essential to prevent blind spots in
judgment.
●​ Judges should undergo education that fosters appropriate affective
responses.
■​ Affective Transformation
●​ Judgment must integrate affect rather than suppress it.
●​ Legal education should include literature, storytelling, and
firsthand exposure to diverse experiences.
●​ Impartiality in the Face of Diversity
○​ Sexual Harassment Cases
■​ Adjudication requires sensitivity to differing experiences of harm.
■​ Judges with direct experience of harassment may be better suited to handle
such cases.
■​ Traditional notions of impartiality wrongly assume that neutrality requires
detachment.
○​ Challenges to Judicial Diversity
■​ Critics argue that diverse judges are biased, but exclusionary neutrality is
itself biased.
■​ Judges with histories of fighting discrimination have been accused of bias,
revealing systemic resistance to diversity.
○​ Impartiality in Daily Life
■​ Everyday decision-making also requires impartiality informed by
diversity.
■​ Classroom participation rules illustrate how impartiality can be structured
to promote equality.
●​ Reflections on Equality and Embodiment
 ○​ Formal equality is insufficient without recognizing embodied diversity.
○​ Universal moral worth must be combined with attention to differences.
○​ Legal reasoning must move beyond abstraction to incorporate real-world contexts.
○​ Justice requires rethinking neutrality and impartiality to acknowledge systemic
inequalities.

Charlesworth, Human Rights and the Rule of Law After Conflict (2008) skim intro, read
46-60 on post-conflict peace building and rule of law

●​ The article explores the relationship between human rights and the rule of law in
post-conflict societies, critiquing how international institutions approach rebuilding
efforts.
○​ The rule of law is widely promoted as essential for post-conflict recovery, but its
implementation often prioritizes legal institutions over substantive human rights
concerns.
○​ There is a tension between procedural understandings of the rule of law, which
focus on institutions and legality, and substantive views that integrate human
rights.
○​ The article argues that post-conflict rule of law programs should include
economic, social, and cultural rights alongside civil and political rights to address
power imbalances.
●​ Historical and Theoretical Background
○​ The Hart-Fuller debate in 1958 discussed the connection between law and
morality.
■​ Hart’s positivist view saw law as distinct from morality, arguing that even
bad laws remain laws.
■​ Fuller believed law had an inherent morality, with principles like
consistency, public accessibility, and non-retroactivity ensuring its
legitimacy.
○​ Human rights were absent from the Hart-Fuller debate despite their relevance
after World War II.
○​ The rule of law is central to international governance but has different
interpretations.
■​ Hart linked the rule of law to principles of legality, emphasizing
procedures over morality.
■​ Fuller’s concept of internal morality influenced modern understandings of
the rule of law.
●​ Post-Conflict Peace-Building and the Rule of Law
○​ The international community increasingly uses the rule of law as a framework for
rebuilding societies after conflict.
 ○​ The term "post-conflict" can be misleading, as many conflicts persist long after
formal peace agreements.
○​ International organizations like the World Bank, the UN, and NGOs implement
rule of law programs to create stable governance structures.
○​ The rule of law has become a flexible concept, allowing for varied interpretations
that sometimes exclude human rights.
○​ Early skepticism toward the rule of law arose from its association with
authoritarian regimes.
●​ Approaches to the Rule of Law
○​ Definitions of the rule of law range from procedural (thin) to substantive (thick).
○​ Thin definitions focus on procedural aspects like judicial independence and legal
stability.
○​ Thick definitions include broader human rights protections and democratic
principles.
○​ Many international programs adopt procedural definitions, emphasizing judicial
training and institutional reform.
○​ Some definitions incorporate limited human rights concerns, often focusing on
civil and political rights rather than economic, social, and cultural rights.
○​ The World Bank and international financial institutions promote rule of law
primarily as a mechanism for economic stability and market regulation.
●​ Critique of Rule of Law Programs
○​ Many rule of law initiatives are top-down, prioritizing Western legal models over
local contexts.
○​ Programs often focus on criminal justice reform while neglecting broader legal
and social issues.
○​ Legal institutions are treated as proxies for justice without ensuring they function
effectively.
○​ Short-term funding cycles prioritize visible reforms like building courthouses
over long-term capacity-building.
○​ Local populations often view these programs as foreign impositions rather than
addressing their actual needs.
●​ Failures in Implementation
○​ Examples of unsuccessful rule of law programs include East Timor and
Cambodia.
○​ In East Timor, international interventions failed to establish a functioning judicial
system.
○​ In Cambodia, the UN disregarded existing legal traditions and imposed foreign
models.
○​ Many post-conflict societies lack the resources, political will, or social structures
necessary to implement rule of law reforms effectively.
 ○​ Traditional conflict resolution mechanisms are often ignored, further
disconnecting rule of law programs from local realities.
●​ Human Rights and the Rule of Law
○​ Many rule of law programs limit their engagement with human rights to
procedural protections rather than substantive rights.
○​ Economic, social, and cultural rights are often excluded from rule of law
initiatives.
○​ International definitions of human rights vary, with some programs emphasizing
negative rights (freedom from state interference) over positive rights (state
obligations to provide resources).
○​ Some scholars argue that human rights and the rule of law should be more
explicitly linked to address power imbalances in post-conflict societies.
●​ Alternative Approaches
○​ Some propose a minimalist approach to the rule of law, focusing on basic
protections against government abuse.
○​ Others argue for a more expansive definition that includes human rights as
essential components.
○​ Pragmatic approaches integrate human rights but remain flexible to different
social and cultural contexts.
○​ Economic and social rights should be central to post-conflict rebuilding to ensure
long-term stability.
○​ Programs should focus less on institutions and more on addressing the distribution
of power in society.
●​ Conclusion
○​ The rule of law in post-conflict societies should not be reduced to legal
institutions but should address broader issues of justice and power.
○​ Economic, social, and cultural rights should be included to ensure comprehensive
protections.
○​ International interventions should prioritize local needs rather than impose
external legal models.
○​ The rule of law should be a tool for limiting arbitrary power rather than an end in
itself.

Module 5 - Postwar Anxieties: Law as Statutes vs. Morality of Law (or Positivism and
Natural Law, Parts II)

LSE lecture, The Moral Structure of Legal Systems (2010) (watch time: approx. 7 mins)

●​ Jurisprudence philosophical investigation of the concept of law

●​ Debate between philosophers of legal positivism vs natural law
○​ Positivist ⇒ know what the law is, law is clear
■​ Isn't that law is not referable to any kind of moral idea
●​ It's a question of social fact: does it or does it not exist
●​ Don't need to put it against standards like morality
○​ Natural law ⇒ main claim is that law has some kind of important moral
dimension
■​ Thinks that positive legal philosophy does not exhaust our understand of
law
●​ There's something more to it
●​ This debate was most famously captured by HLA Hart, most important figures in 20th
century legal philosophy
○​ He debated questions of law and morality, and whether they are in fact connected
or not
■​ Whether law has some moral content
●​ Been a debate for 50 years
○​ These questions remain salient
○​ Natural law position in this debate, is different from what we ordinarily associated
with
■​ It was about whether law includes some kind of moral criteria that go to
the form through which its expressed
○​ Whether the rule of law imports some sort of moral connection to law
■​ Are the two so closely connected that morality creeps through the moral
value of the rule of law
●​ Nazi law
○​ Hart defining legal positivism against this claim that law and morality are not
necessarily connected
■​ Taken on the question is nazi law with evil characteristic should be given
the title of law
●​ His argument consistent with positivist tradition ⇒ these laws
were considered valid by nazi officials then they were valid laws.
Their moral content is a separate question.
○​ Fullers response to Hart
■​ Look at the way that Nazi convened their legal system (secret laws, modes
of interpretation)
■​ Traditionally understood as debate if law and morality are connected, but
fuller is asking how much does the rule of life matter to your concept of
law
●​ Are you willing to look at instance of nazi legality
 ○​ Where the letter of the law was abandoned when officials
saw fit, with secret laws, etc - is this still law?
■​ As legal philosophers are we content to having such an indiscriminate
notion of law just because certain officials in a system say this is law
●​ We need to know what the law is
○​ What quality of legal systems do we want to grant the title of law to?

Hart, Positivism and the Separation of Law and Morals (1958) 593-629

●​ Hart defends the legal positivist tradition, emphasizing the separation of law and
morality.
●​ He argues that critics misrepresent positivism by conflating it with other flawed legal
theories.
●​ The distinction between law as it is and law as it ought to be is essential for legal
clarity and reform.
○​ Austin and Bentham
○​ For Austin: For him, it must be remembered,the fundamental principles of
morality were God's commands, to which utility was an "index"
○​ Bentham: Bentham insisted on this distinction without characterizing morality
by reference to God but only, of course, by reference to the principle of utility
●​ The article is a response to scholars who argue for the necessary intersection of law and
morals, particularly post-WWII critiques of positivism.

Historical Background: The Utilitarian Legacy

●​ Bentham and Austin were the principal advocates of the separation of law and
morality.
●​ Their motivation:
○​ Clarifying law—Law should be understood as it is, not what people wish it to
be.
○​ Enhancing legal critique—Separating law from morality allows for meaningful
legal criticism and reform.
○​ Avoiding legal anarchy—Without this distinction, individuals could justify
disobedience based on their own moral views.
●​ Bentham condemned natural law theories for blending moral and legal reasoning,
arguing they obscured legal reality.
●​ Austin reinforced this by defining law as commands issued by a sovereign, habitually
obeyed, and backed by threats of sanctions.
●​ “We must remember that the Utilitarians combined with their insistence on the
separation of law and morals two other equally famous but distinct doctrines. One was
the important truth that a purely analytical study of legal concepts, a study of the
meaning of the distinctive vocabulary of the law, was as vital to our understanding of
 the nature of law as historical or sociological studies, though of course it could not
supplant them. The other doctrine was the famous imperative theory of law - that law is
essentially a command.

These three doctrines constitute the utilitarian tradition in jurisprudence; yet they are
distinct doctrines.” (601)

○​ The three doctrines of utilitarians:

■​ Separation of law and morals
■​ Analytical study of legal concepts (vocabulary of the law)
■​ Command theory of law
●​ “It is easy to see that this account of a legal system is thread- bare.
One can also see why it might seem that its inadequacy is due to
the omission of some essential connection with morality.” (603)
○​ Critics make the mistake of finding inadequacies in one and then saying that was
sufficient to demonstrate the falsity of separation of law and morals
●​ Hart presents critiques of Austin's Command Theory of Law, which defines law as
commands from a sovereign, backed by sanctions, and habitually obeyed.
○​ Key Problems:
■​ Law is more than coercion – Not all laws impose duties; some grant
powers (e.g., contracts, wills, and constitutional rules).
■​ The "Gunman" objection – Law is not just threats from a ruler; it
functions through accepted rules, not mere coercion.
■​ Sovereignty is unclear – In modern democracies, power is distributed
and changing, making Austin’s single "sovereign" unrealistic.
■​ Law depends on rules, not just commands – Hart introduces the rule of
recognition, which defines valid laws based on social acceptance, not
force.
○​ Conclusion: Law is a complex system of primary and secondary rules, not just
commands from a ruler.
●​ American criticism of separation of law and morals: emerged largely from realists of
1930s
●​ Critics of positivism argue that this rigid separation of law and morality enabled
authoritarian regimes like Nazi Germany to claim legitimacy for unjust laws.

The Rule of Recognition & Legal Validity

●​ Hart proposes an alternative theory of legal systems based on a “rule of recognition.”
○​ Unlike Austin’s command theory, law is not just commands enforced by
coercion.
 ○​ Instead, a legal system operates based on a social rule that officials accept and
apply to identify valid laws.
●​ This rule of recognition is not inherently moral—it is a social fact that defines legal
validity.
○​ Example: The U.S. Constitution is recognized as the supreme law because
judges and citizens accept it as authoritative.
●​ Key Point: A legal system can exist even if its laws are unjust—whether it ought to
exist is a separate moral question.

The "Penumbra" Problem: Hard Cases & Judicial Decision-Making

●​ Core vs. Penumbra:
○​ Legal rules have a core meaning, where their application is clear.
○​ However, there is always a penumbra of uncertainty, where rules are vague or
ambiguous. (problems of the penumbra)
○​ Example: If a law bans “vehicles” from a park, does this include bicycles, roller
skates, or toy cars?
●​ Judges must resolve such cases by choosing among competing interpretations.
○​ This choice is not dictated by logic alone—it involves social policies and
objectives.
○​ However, this does not mean that judges are always applying morality in these
cases.
○​ “Fact situations do not await us neatly labeled, creased, and folded, nor is their
legal classification written on them to be simply read off by the judge. Instead,
in applying legal rules, someone must take the responsibility of deciding that
words do or do not cover some case in hand with all the practical consequences
involved in this decision.” (607)
○​ “In this area men cannot live by deduction alone” (608)
●​ Says Bentham and Austin ignored the problems of the penumbra
●​ Hart rejects "formalism" or “literalism”, which treats legal reasoning as purely
deductive and automatic.
○​ “Logic only tells you hypothetically that if you give a certain term a certain
interpretation than a certain conclusion follows. Logic is silent on how to
classify particulars- and this is the heart of a judicial decision.” (610)
●​ But he also rejects the opposite extreme—the idea that all law is just open-ended moral
reasoning.
○​ Judges’ decisions are constrained by the core meaning of legal rules.
○​ “We must, I think, beware of thinking in a too simple-minded fashion about the
word "ought.”” (612)
 ○​ “The word "ought" merely reflects the presence of some standard of criticism;
one of these standards is a moral standard but not all standards are moral.”
(613)

Response to Critics: Law & Morality in the Nazi Legal System

●​ Hart addresses Gustav Radbruch’s critique of positivism.
○​ Radbruch had shared the positivist doctrine until the Nazi tyranny
○​ Radbruch argued that legal positivism enabled blind obedience to Nazi law
because it treated all enacted law as valid, regardless of morality.
○​ Radbruch proposed that laws contradicting basic moral principles should not be
recognized as law at all.
■​ “These German thinkers put their insistence on the need to join together
what the Utilitarians separated just where this separation was of most
importance in the eyes of the Utilitarians; for they were concerned with
the problem posed by the existence of morally evil laws” (616)
●​ Hart's response:
○​ Acknowledging that Nazi laws were evil does not mean they were not laws.
○​ Calling them "law" does not mean we must obey them—it simply clarifies the
need for moral resistance.
○​ The problem was not positivism but moral and political failure in Germany’s
legal and social system.
■​ “The special importance of these cases is that the persons accused of
these crimes claimed that what they had done was not illegal under the
laws of the regime in force at the time these actions were performed.
This plea was met with the reply that the laws upon which they relied
were invalid as contravening the fundamental principles of morality”
(618)
●​ Example about wife reporting her husband criticizing Hitler:
○​ “to quote the words of the court, the statute "was contrary to the sound
conscience and sense of justice of all decent human beings." This reasoning
was followed in many cases which have been hailed as a triumph of the
doctrines of natural law and as signaling the overthrow of positivism” (619)
●​ Hart warns that blurring law and morality can be dangerous, as it could lead to:
○​ Judges making decisions based on subjective moral preferences rather than
legal reasoning.
○​ Loss of legal certainty, making the law unpredictable.
●​ “There is a wish, which may be understand- able, to cut straight through the question
whether a legal system, to be a legal system, must measure up to some moral or other
standard with simple statements of fact” (622)
 ●​ “We have only to consider how the whole of our social, moral, and legal life, as we
understand it now, de- pends on the contingent fact that though our bodies do change in
shape, size, and other physical properties they do not do this so drastically nor with
such quicksilver rapidity and irregularity that we cannot identify each other as the same
persistent individual over considerable spans of time”
●​ Talks about a concern of those against positivism: "subjectivist" and "relativist" or
"noncognitive" theories concerning the very nature of moral judgments, moral
distinctions, or "values."

Last section:

H.L.A. Hart addresses subjectivist, relativist, and noncognitive theories of morality, particularly
in relation to legal reasoning and moral judgments. He also critiques Lon Fuller’s views on the
connection between law and morality.

These theories suggest that moral judgments are not objective facts but instead reflect personal
attitudes, emotions, or societal conventions.

●​ Subjectivism: Morality is a matter of individual preference or feeling (e.g., "stealing is

wrong" simply means "I disapprove of stealing").
●​ Relativism: Moral values are determined by cultural or societal norms, not universal
truths.
●​ Noncognitivism: A broader view that moral statements are not capable of being true or
false—they are expressions of emotion or prescriptions for action rather than factual
claims.

Hart’s Concern with These Theories in Legal Reasoning

●​ If morality is purely subjective or relative, it undermines the idea that laws should be
evaluated based on objective moral principles.
●​ This would challenge natural law theories, which assume that law and morality are
inherently linked through universal moral principles.
●​ Hart’s key point: Even if moral judgments are subjective or relative, this does not affect
legal positivism’s core claim—that law and morality are distinct and that a rule can be
legally valid even if it is morally objectionable

Hart’s Response to Fuller

●​ Hart rejects Fuller’s claim that law has an intrinsic morality.
●​ He argues that even evil legal systems (like Nazi Germany) still functioned as law,
despite their moral failings.
●​ Hart distinguishes between:
 ○​ Procedural morality (e.g., laws should be clear and consistent).
○​ Substantive morality (e.g., laws should be just and fair).
○​ Hart’s key argument: A legal system can follow procedural morality (be
internally consistent) while still being profoundly immoral (e.g., enforcing
racial discrimination or political oppression).
●​ Hart maintains that laws should be judged separately from moral standards, even if
moral reasoning plays a role in legal interpretation.
●​ He acknowledges that moral debate influences judicial decisions, but this does not
mean that law and morality are fused—legal rules can be valid even if they are morally
reprehensible.

Key Takeaways & Hart's Conclusions

1.​ The separation of law and morality is essential for legal clarity and objective legal
analysis.
2.​ Legal rules are not always morally justified, but they remain law unless changed
through legal reform.
3.​ Judicial decision-making involves discretion, especially in hard cases, but this does not
mean that law is inherently moral.
4.​ Positivism does not promote blind obedience—it allows for moral criticism of law
while maintaining legal stability.
5.​ The failure of Nazi Germany was a moral and political failure, not a failure of legal
positivism itself.

Significance of Hart’s Argument

●​ Hart’s article remains a foundational defense of legal positivism in modern
jurisprudence.
●​ His ideas shaped modern legal theory, particularly the debate between positivism and
natural law.
●​ The article addresses major post-war concerns about law’s role in legitimizing
injustice.
●​ Contemporary debates on law—such as human rights, judicial activism, and
constitutional interpretation—often reflect Hart’s themes.

His argument helps separate legal analysis from moral advocacy, ensuring that law remains a
distinct discipline rather than a tool for political ideology.
Fuller, Positivism and Fidelity to Law (1958) 630-672

Fuller's Key Criticisms of Legal Positivism

A. The Separation of Law and Morality (Hart vs. Fuller)

●​ Hart, a legal positivist, maintains that law and morality must be strictly separated.
○​ Hart argues that law is law regardless of its moral value.
○​ He acknowledges that moral considerations may sometimes influence legal
interpretation, but he denies that morality is essential for something to be
considered "law."
●​ “It is now explicitly acknowledged on both sides that one of the chief issues is how we
can best define and serve the ideal of fidelity to law” (632)
●​ Fuller rejects this separation and argues that a legal system must have a moral structure
to function.
○​ He claims that law itself contains an "inner morality" that ensures legal order.
○​ This internal morality is not about "higher law" or religious morality but rather
procedural principles that make law coherent and functional.
●​ Re: definition of law:
○​ “Surely it is not only in the affairs of everyday life that we need clarity about
the obligation of fidelity to law, but most particularly and urgently in times of
trouble. If all the positivist school has to offer in such times is the observation
that, however you may choose to define law, it is always something different
from morals, its teachings are not of much use to us.” (634)

B. The Morality of Order: The "Internal Morality of Law"

Fuller introduces a key concept: "the internal morality of law."

●​ For a legal system to function properly, it must meet certain fundamental criteria.
●​ Internal morality of law seems to be almost completely neglected by Hart (645)
●​ These principles of legality ensure that laws:
1.​ Are general (apply to all cases of a given kind).
2.​ Are publicly known (citizens must know the law).
3.​ Are clear and understandable (so people can comply).
4.​ Are consistent (laws must not contradict each other).
 5.​ Are not impossible to follow (laws must be realistic).
6.​ Are relatively stable over time (frequent changes lead to uncertainty).
7.​ Are applied consistently (law must be administered fairly).
8.​ Reflect a congruence between official action and declared law (laws must be
enforced as written).

➡ Fuller argues that if a legal system fails to meet these criteria, it collapses into
lawlessness, even if it follows the formalities of legislation.

Note: external morality– “the authority to make law must be supported by moral attitudes that
accord to it the competency it claims. Here we are dealing with a morality external to law,
which makes law possible. But this alone is not enough”

Fuller's Argument Against Hart's Positivism

A. The Problem of Interpretation: Meaning vs. Purpose

●​ Hart suggests that legal interpretation involves distinguishing between:
○​ Core cases: where meaning is clear.
○​ Penumbra cases: where meaning is vague and requires judicial discretion.
○​ Fuller says with this that Hart is proposing “a theory of judicial interpretation
which is, I believe, wholly novel” (662)
○​ “Professor Hart seems to assume that it is a kind of cataloguing
procedure…Surely the judicial process is something more than a cataloguing
procedure” (666)
●​ Fuller rejects this strict distinction.
○​ He argues that law should be interpreted based on its purpose, not just its
words.
○​ Judges should not simply "apply the law" mechanically but should interpret it
in a way that maintains the law’s broader objectives.
○​ “Professor Hart seems to assume that evil aims may have as much coherence
and inner logic as good ones. I, for one, refuse to accept that assumption” (636)
■​ Because “coherence and goodness have more affinity than coherence
and evil”
 ○​ “Is it not also clear that our judge can never achieve a satisfactory resolution of
his dilemma unless he views his duty of fidelity to law in a context which also
embraces his responsibility for making law what it ought to be?” (647)

➡ Example: A traffic law saying, "No vehicles in the park."

●​ Hart: The law’s core meaning includes cars but not bicycles (a "penumbra case").
●​ Fuller: The purpose of the law (to protect pedestrians) matters more than literal
wording.
○​ “The most obvious defect of his theory lies in its assumption that problems of
interpretation typically turn on the meaning of individual words.” (662)
○​ “Even in situations where our interpretive difficulties seem to head up in a
single word, Professor Hart's analysis seems to me to give no real account of
what does or should happen.” (663)

Other points:

●​ “Professor Hart emphatically rejects "the command theory of law," according to which
law is simply a command backed by a force sufficient to make it effective” (638)
○​ Gunman situation - law is not the gunman writ large
○​ Reveals defects of this theory
○​ Fuller agrees
○​ Hart: “His conclusion is that the foundation of a legal system is not coercive
power, but certain "fundamental accepted rules specifying the essential
lawmaking procedures.” (639)
●​ “For if law is made possible by "fundamental accepted rules"-which for Austin must be
rules, not of law, but of positive morality- what are we to say of the rules that the
lawmaking power enacts to regulate its own lawmaking?” (641)
○​ Talks about Kelsen’s basic norm as a symbol not a fact
○​ “It is a symbol that embodies the positivist quest for some clear and
unambiguous test of law, for some clean, sharp line that will divide the rules
which owe their validity to their source and those which owe their validity to
acceptance and intrinsic appeal.”
●​ “to be effective a written constitution must be accepted, at least provisionally, not just
as law, but as good law.” (642)
 ●​ “substantive aims should be achieved procedurally, on the principle that if men are
compelled to act in the right way, they will generally do the right things.” (643)
●​ “the theory of meaning implied in Professor Hart's essay seems to me to have been
rejected by three men who stand at the very head of modern developments in logical
analysis: Wittgen- stein, Russell, and Whitehead.” (669)
●​ “A statute or a rule of common law has, either explicitly, or by virtue of its relation
with other rules, something that may be called a structural integrity.” (670)

B. The Nazi Legal System: Can Evil Laws Be Law?

●​ Hart argues that Nazi laws were still "law" even if they were morally abhorrent.
●​ Fuller strongly disagrees: Nazi Germany’s legal system was not law at all, because it
abandoned the internal morality of law.

Key Case: The Nazi Informer Case

●​ A woman informed on her husband for criticizing Hitler.

●​ Under Nazi laws, her actions were legal, and her husband was punished.
●​ After WWII, the courts convicted the woman despite Nazi law.
●​ Hart: The court should have admitted the law was valid but then passed a retroactive
law to punish informers. (as the least objectionable solution)
○​ Fuller argues that “retroactivity presents a real problem for the internal morality
of law” (651).
○​ However, Fuller would have also preferred a retroactive statute but to
symbolize a sharp break with the past
■​ “it would make it possible to plan more effectively to regain for the
ideal of fidelity to law its normal meaning.”
●​ Fuller: Nazi law was so unjust and lawless that it should not be considered law at all.

➡ Fuller's argument:

●​ If a law lacks basic procedural morality, it ceases to be law.

●​ Nazi statutes were unclear, secret, inconsistent, and arbitrarily enforced, violating the
internal morality of law.
○​ “since the procedures followed by an administrative agency, even in its
"internal"actions, may seriously affect the rights and interests of the citizen,
 these unpublished, or "secret,"regulations are often a subject for complaint.”
(651)
●​ Courts rightly refused to recognize Nazi laws as legitimate.
○​ “Germany had to restore both respect for law and respect for justice.” (657)
○​ Doesn’t totally agree with Radbruch but more than Hart does
●​ Considers if legal positivism had any causal connection with Hitler’s ascent to power
(658)
○​ German legal positivism was blind to the inner morality of law itself (659)
●​ “legal morality cannot live when it is severed from a striving toward justice and
decency.” (661)

C. Judges and the Problem of Bad Law

●​ Fuller discusses the dilemma of judges who must apply bad laws.
○​ Should a judge blindly apply unjust laws?
○​ Or should they interpret laws in line with justice?
●​ Fuller argues that:
○​ Judges must use reasoned interpretation rather than strict formalism.
○​ Law and morality are intertwined—legal positivism is unhelpful in real-world
dilemmas.
The Broader Implications of Fuller's Argument

A. Law as a Human Achievement

●​ Fuller believes law is not just a set of commands but a framework for social
cooperation.
●​ A functioning legal system requires respect for legal principles, not just obedience to
authority.

B. A Critique of Austin & Kelsen

●​ Fuller critiques Austin’s command theory (law is simply what the sovereign orders).
●​ He also criticizes Kelsen’s "pure theory of law," which separates law from moral
considerations.
●​ Fuller argues that both views fail to account for how legal systems actually work in
practice.
C. Does Legal Positivism Enable Tyranny?
●​ Fuller agrees with Radbruch’s claim that legal positivism made Germany more
vulnerable to dictatorship.
○​ If people are taught that law and morality are separate, they may obey immoral
laws without question.
○​ A legal system without moral limits can become a tool for oppression.

➡ Fuller’s Warning: A system that ignores law’s moral foundation risks becoming a weapon for
tyranny.

Conclusion: Why Fuller’s Argument Matters

●​ Fuller rejects legal positivism’s claim that law and morality must be kept separate.
●​ He argues that law has an internal morality—basic principles that ensure law is fair,
clear, and just.
●​ He criticizes Hart’s rigid distinction between core meaning and penumbra cases,
arguing that interpretation must consider law’s purpose.
●​ He disputes Hart’s claim that Nazi law was valid law, instead arguing that Nazi legal
failure shows how law collapses when it loses moral integrity.

Fuller’s theory suggests that judges and lawmakers have a duty to ensure that laws align with
fundamental moral principles.

Naffine, The Common Discourse of Hart and Fuller (2008) read 222-225, you may skim the
rest

●​ Manderson’s approach to legal interpretation is rooted in literary theory, which employs

metaphor and fiction to explore legal concepts.
○​ His method follows a structured analytical sequence when examining the
Hart-Fuller debate.
■​ First, he critically examines the rhetoric used by Hart and Fuller and their
two conflicting visions of law.
■​ Second, he observes that both theorists fail to completely exclude the
other’s approach.
■​ Third, he argues that their perspectives interact and influence each other
but do not reconcile.
■​ Instead of merging into a single viewpoint, each remains "haunted" by the
other, creating productive tension.
●​ Hart and Fuller’s views are presented as incommensurable, evidenced by their rhetorical
styles.
○​ Hart’s writing is linear, seeking simplicity and certainty in legal meaning.
○​ Fuller, in contrast, embraces circularity and reflection, considering these qualities
strengths of legal analysis.
○​ Their rhetorical styles are not just methods of argument but expressions of their
understanding of law.
○​ Manderson compares their legal debate to the ghostly storytelling technique in
The Turn of the Screw, where meaning is found as much in the telling as in the
content.
●​ Despite Manderson’s claim that no side "wins," his analysis implicitly favors Fuller.
○​ Hart’s attempt to simplify and demystify law leads him to use increasingly rigid
and extreme rhetoric.
○​ Fuller, however, appreciates doubt and ambiguity, which Manderson presents as a
more sophisticated and flexible approach to law.
○​ Fuller’s vision allows for a dynamic, evolving understanding of law, while Hart’s
perspective risks becoming overly rigid.
●​ Another perspective challenges Manderson’s interpretation by arguing that Hart and
Fuller’s views are not truly incommensurable.
○​ While Manderson emphasizes their differences, another analysis suggests that
their debate is a conversation with shared assumptions.
○​ Despite not clearly defining key terms like “law” and “morality,” their discourse
remains meaningful.
○​ The ability to sustain dialogue without precise definitions suggests a foundational
agreement between them.
●​ Hart’s positivism seeks to maintain a clear distinction between law and morality.
○​ He argues that moral considerations can influence law but should remain
analytically separate.
○​ He acknowledges a "minimum content" of natural law—rules against violence
and basic property protections—since humans require basic order to survive.
○​ Beyond this, morality is subjective, leading to variation in moral beliefs across
societies.
●​ Hart assumes that his legal system inherently contains a minimum moral content.
○​ He presumes a liberal legal system where debate is free and open.
○​ This assumption is unexamined and taken as a given, as though the audience
shares his perspective.
●​ Fuller critiques Hart for failing to define “morality” clearly.
○​ He argues that Hart, like Austin and Gray, uses "morality" as an umbrella term for
any standard of conduct outside the law.
○​ Fuller distinguishes between different kinds of morality.
 ■​ Procedural morality (inner morality of law), which ensures coherence,
stability, and predictability in legal systems.
■​ An undefined concept of "ultimate goodness," to which proper legal
processes naturally gravitate.
■​ Common decency, a form of social morality based on shared experiences
and discourse.
■​ Religious morality, such as Catholic doctrine, which he argues is wisely
kept separate from law.
○​ Fuller implies that procedural morality itself leads toward substantive moral
goodness, though this remains vague.
●​ Like Hart, Fuller assumes his legal system is fundamentally moral.
○​ He differentiates it from “perverted regimes” but suggests even authoritarian
systems hesitate to openly codify cruelty and inhumanity.
○​ He appeals to a universal sense of justice that all legal systems, even corrupt ones,
recognize at some level.
●​ The debate between Hart and Fuller is shaped by underlying assumptions rather than
completely opposed perspectives.
○​ Their discussion remains intelligible despite ambiguities because they share
implicit common ground.
○​ While Manderson views their debate as unresolved and mutually haunting,
another interpretation sees it as an example of legal discourse shaped by shared
legal traditions.
●​ Hart and Fuller share a strong belief in the goodness of their own legal systems, which
they view as morally grounded.
○​ Hart refers to a "developed legal system," implying both complexity and morality,
viewing his own system as such.
○​ Fuller distinguishes between legitimate legal systems and "perverted" regimes,
suggesting that his system possesses an internal procedural morality that aligns
with the good.
○​ Both implicitly believe that their legal systems exhibit procedural justice and
fairness.
○​ They view law itself as a positive force, distinguishing them from anarchists like
Kropotkin, who see law as harmful.
●​ Both theorize at a high level of abstraction, presenting their ideas about law as universal
concepts.
○​ They see Anglo-American law as a template for all legal systems.
○​ Both assume certain moral values are intrinsic to law, though neither provides a
clear definition of morality.
○​ The debate between them proceeds despite the lack of precise moral definitions,
as they share a broad understanding of what constitutes "good" law.
 ○​ The dialog between Hart and Fuller is feasible because they share similar
worldviews about morality and law.
●​ They are both influential intellectuals from leading law schools, shaping the terms of
their debate about law and morality.
○​ Both assume their legal systems are fundamentally decent, humane, and not
susceptible to cruelty or injustice.
○​ Their belief in the goodness of their legal systems influences their theories.
○​ The idea of "implicit 'ways'" is used to describe their shared mindset, which is
based on deep assumptions about law and morality rather than explicit doctrines.
●​ Hart and Fuller both envision a society with an orderly legal framework, assuming their
legal systems already align with moral values.
○​ Neither can fully conceive of radically different or "incommensurable" ways of
thinking about law.
○​ Hart refers to the "undeveloped legal system," while Fuller refers to the
"perverted legal system," but neither seems to imagine a legal system that fails to
meet their moral expectations.
●​ An interlocutor with a genuinely different vision of law might offer perspectives that
challenge Hart and Fuller's assumptions.
○​ Possible alternative visions of law might come from various groups, such as
anarchists, Confucian or Shari’a regimes, or Aboriginal customary law.
○​ Ordinary citizens within Hart and Fuller's legal systems might also offer
alternative visions, such as marginalized groups.
■​ A married woman from the 1950s might highlight the lack of legal
protection for her rights, challenging the adequacy of the English legal
system.
■​ A homosexual Englishman might point out the criminalization of his
desires.
■​ An African-American might reflect on systemic racism and exclusion
from the legal system.
■​ A prisoner on death row might critique the legal system's intolerance and
inhumanity, particularly regarding the death penalty.
●​ These alternative perspectives are not minor criticisms of legal theories but reflect deeper
issues with the laws themselves.
○​ If law is to protect bodily integrity and ownership, then Hart's legal system might
be inadequate if it fails to protect a married woman's basic rights.
○​ If procedural fairness is essential to Fuller, then the exclusion of marginalized
groups (such as African-Americans) from participating in the legal system
undermines Fuller's vision.
●​ Hart and Fuller are more aligned with each other than with these alternative perspectives,
despite their intellectual differences.
 ○​ The "implicit" faith they have in their legal systems is not shared by many
ordinary citizens who experience legal marginalization.
○​ The standards of decency Fuller invokes did not apply to many marginalized
groups.
●​ The debate between Hart and Fuller, which took place in 1958, reflects a limited view of
law and morality.
○​ They took little account of contemporary developments in human rights, feminist
legal theory, critical race theory, and queer theory.
○​ They did not engage with the evolving legal landscape or look beyond their
national contexts.
○​ The ideal types of "developed legal systems" and "perverted regimes" they use are
overly simplistic and do not account for the complexities of modern legal
systems.
●​ Fifty years later, after the rise of feminist, racial, and queer legal theories, along with the
growth of international human rights and global legal knowledge, it is easier to critique
their limited and provincial view of law.

PUB 3: Foundations | February 19th, 2024

Hayes, Can We Even Speak of Judaism and Law? (2017) 1-16

●​ The phrase "Judaism and Law" assumes a Western Christian perspective, which separates
law and religion as distinct entities.
○​ This assumption works for Christianity, which historically distanced itself from
Mosaic Law.
○​ In contrast, Judaism has traditionally viewed law and religion as overlapping or
even identical.
●​ As is well known, this original alienation of the faithfrom law proved to be unsustainable,
and in due course Christianity found it necessary to negotiate the bounds and claims of
normativity
●​ The Jewish tradition considers divine law as the foundation of religious life.
○​ This view contrasts with Greco-Roman thought, where divine law was often
metaphorical for natural law.
○​ Biblical law is divine because it reflects God's will and is explicitly written.
●​ Law in Judaism is not just religious law but an all-encompassing system tied to divine
will.
○​ Law was long viewed as an essential and constitutive element of Jewish religious
expression
 ○​ [...] it is not possible to speak of law and Judaism since law is Judaism”
(3)
○​ The covenant at Sinai establishes Jewish law as a divine directive.
○​ Jewish law is both legal and theological, defining the relationship between
humans and God.
●​ The modern concept of Judaism as a "religion" separate from law is a relatively recent
development.
○​ Intellectual and political shifts in Europe led to viewing Judaism as a religion like
Christianity.
○​ Some Jewish thinkers resisted this change, emphasizing the continued importance
of Jewish law.
●​ The book explores Judaism's concept of divine law and its historical developments.
○​ Topics include the role of divine law, legal mediation, and mechanisms for legal
change.
○​ The distinction between Written Torah and Oral Torah is central to Jewish legal
tradition.
●​ The book also examines resistance to legalism within Judaism.
○​ Various Jewish movements, such as Hasidism and Reform Judaism, have
challenged the centrality of law.
●​ Judaism has historically had to navigate secular legal systems.
○​ Jewish communities, often under foreign rule, had to reconcile Jewish law with
external legal frameworks.
●​ The Enlightenment reshaped Jewish law's role in modern society.
○​ European emancipation of Jews led to debates on the relationship between
Judaism and secular legal systems.
○​ Some Jews embraced a version of Judaism that downplayed legal elements in
favor of moral or cultural identity.
●​ The book analyzes the impact of modern Jewish movements on Jewish law.
○​ Reform Judaism redefined Jewish law as a set of ethical rather than legal
obligations.
○​ Orthodox movements defended the continued authority of halakhah.
●​ The Israeli legal system adds another layer to this discussion.
○​ Israel's legal framework is based on multiple sources, including Jewish law,
British common law, and Ottoman law.
○​ The debate over Israel's legal identity revolves around the extent to which Jewish
law should influence state law.
●​ The book includes discussions on feminism and Jewish law.
○​ Jewish feminist scholars have critiqued traditional halakhah and sought to reform
it.
●​ The final sections discuss the role of Jewish law in Israeli politics.
 ●​ The tension between religious and secular views of law shapes debates on
marriage, conversion, and civil rights.
●​ The relationship between the Israeli High Court and religious authorities is a key
area of legal conflict.

Kilgannon, At the Center of Pizza War, an Unusual Ingredient: Ancient Talmudic Law (2017)

●​ A kosher pizza war unfolded in Brooklyn, involving two Orthodox Jewish pizza
restaurant owners.
○​ The dispute was settled in a rabbinical court (beth din) rather than a civil court.
○​ The case revolved around an interpretation of Talmudic law on unfair competition
(hasagat gevul).
●​ The plaintiff, Daniel Branover, owns Basil Pizza & Wine Bar, an upscale kosher
restaurant in Crown Heights.
○​ Basil offers specialty pies and has a mixed clientele of Hasidim, local Caribbean
immigrants, and professionals.
○​ Branover accused the new pizza shop, Calabria, of copying his business model
and poaching customers.
●​ The defendant, Shemi Harel, opened Calabria, a casual pizza shop across the street from
Basil.
○​ Calabria has a different atmosphere—graffiti-style décor and counter service.
○​ Harel denied the accusations and claimed his restaurant’s look and menu were
distinct.
●​ The rabbinical court, composed of three rabbis, ruled mostly in favor of Branover.
○​ They cited Talmudic law, determining that Calabria was too similar in food style
and location.
○​ Calabria was instructed to switch to "regular pizza," defined as "New York-style
pizza."
●​ Harel attempted to comply by changing his website description and searching for a "New
York-style" dough recipe.
○​ However, he continued selling rectangular slices, leading to further accusations of
flouting the ruling.
○​ Branover considered filing a civil lawsuit using the rabbinical ruling as leverage.
●​ The rabbis took an unusual step by personally visiting both restaurants.
○​ They examined differences in ovens, atmosphere, and menu.
○​ Rabbi Reuven Alt stated that while Jewish law does not generally oppose
competition, the circumstances of this case were exceptional.
●​ Harel argued that the ruling was unfair.
○​ He pointed out that Branover owns a successful energy management company and
is wealthy.
○​ He viewed Calabria as his livelihood, while Branover saw Basil as a side project.
 ●​ The case highlights the intersection of ancient Jewish law with modern business disputes.
○​ Rabbinical courts are traditionally used for religious matters like divorce and
kosher certification.
○​ This case demonstrates their occasional role in business conflicts within Orthodox
Jewish communities.

Hallaq, An Introduction to Islamic Law (2009) 1-30

Introduction

●​ One in five people worldwide is Muslim, yet there is limited understanding of their
culture, religion, and history.
○​ Many books about Islam focus on violence and portray a negative image.
○​ Shariʿa (Islamic law) is often misrepresented and associated with harsh
punishments and politics.
○​ Modern representations of Shariʿa differ greatly from its historical role.
●​ The book aims to correct misconceptions by:
○​ Providing a historical overview of Islamic law.
○​ Explaining how colonialism and modern politics changed its function.
○​ Analyzing how Shariʿa became a political tool rather than a legal system.
●​ Key questions addressed:
○​ Was Shariʿa as harsh as it is depicted today?
○​ How did it function in historical societies?
○​ How did colonialism dismantle and reshape Islamic law?
○​ How did modern states manipulate Shariʿa for political control?

​
Who’s who in the Shari’a

●​ Judges, lawyers, and notaries are products of the legal profession.

○​ They receive education in state-regulated elementary and secondary schools.
○​ Law schools are also regulated by the state.
○​ They study state-legislated laws and, in some cases, legal decisions of judges.
○​ The legal profession is heavily regulated by state policies.
○​ Passing state-ordained exams is necessary to practice law.
○​ Lawyers and judges primarily refer to state-made law.
●​ The modern state did not exist in Muslim lands before the 19th century.
○​ The pre-modern Muslim rule lacked pervasive state power.
○​ Bureaucracy was minimal and mostly limited to urban centers.
○​ No formal systems of birth registration, citizenship, or borders.
○​ People moved freely without passports or nationalities.
○​ Rulers had limited influence over distant regions due to logistical constraints.
●​ Self-Governance in Pre-Modern Muslim Societies
○​ Communities regulated their own affairs.
○​ Rulers were primarily for protection from external threats.
○​ Internal affairs were managed through local mechanisms.
○​ Customary law and Shariʿa played central roles in governance.
○​ Shariʿa was not a product of Islamic government but of society.
●​ Role of the Ruler in Islamic Law
○​ The ruler appointed and dismissed judges.
○​ The ruler could define judicial jurisdictions but not influence the law itself.
○​ Law was created by society, not the ruler.
○​ Legal experts emerged from communities to construct the Islamic legal system.
●​ Key Legal Figures in Shariʿa
○​ Four main legal professionals:
■​ Mufti – A private legal specialist responsible to society, not the ruler.
■​ Author-jurist – Created legal writings based on fatwas.
■​ Judge – Applied legal principles in courts.
■​ Law professor – Educated future legal professionals.
●​ Role of the Mufti
○​ Issued fatwas, legal opinions on specific questions.
○​ Consultations were free, making legal advice accessible.
○​ Fatwas were used in courts and could settle disputes outside of them.
○​ Judges often relied on muftis for legal guidance.
○​ Fatwas were authoritative but non-binding.
●​ Impact of Fatwas on the Legal System
○​ Courts did not establish legal precedent (stare decisis).
○​ Legal knowledge came from juristic writings, not court decisions.
○​ Fatwas were collected, edited, and used as references for future cases.
○​ Author-jurists compiled and commented on fatwas, adapting them over time.
○​ Islamic law evolved through scholarly debate and the work of legal experts
●​ Early law professors
○​ Evolved from muftis in the 7th century
○​ Studied law for piety, not pay
○​ Taught in mosques to students interested in the Quran and Prophet’s life
●​ The teaching method involved
○​ Informal circles, modeled after tribal councils
○​ No formal application or fees, only occasional gifts
○​ No degrees, just personal licenses to teach the same book
●​ Muftis switched roles throughout the day:
○​ Issued fatwas
○​ Acted as judges
 ○​ Taught students
○​ Wrote treatises at night
○​ Students sometimes served as witnesses in court
●​ Muftis could teach and judge, but judges needed official qadi appointment
○​ Judges were paid by rulers, muftis and professors were unpaid
○​ Ottomans later introduced salaries for some

The Law: how is it found?

●​ Interpretation of Islamic Law

○​ Since early Islam, scholars debated the role of human reason in law.
○​ Some philosophers believed intellect alone could determine morality and laws.
○​ Islamic tradition concluded that reason alone is insufficient; divine guidance is
needed.
●​ Rational thought is a divine gift but must be guided by revelation.
○​ The Quran and the Prophet’s teachings (Sunna) provide the necessary framework.
○​ Law is derived from a balance of reason and divine instruction.
●​ Sources of Law
○​ Quran: Primary and sacred source, containing about 500 legal verses.
○​ Sunna: Prophet Muhammad’s example, documented in Hadith.
○​ Hadith: Specific sayings/actions of the Prophet, but only about 5,000 out of
500,000 were deemed reliable.
○​ Consensus (Ijma): The entire Muslim community's agreement ensures
authenticity.
●​ Quran’s transmission is universally accepted and undisputed.
○​ Hadiths were scrutinized for reliability based on transmission chains.
○​ Recurrent reports (Mutawatir): Strongest, widely transmitted texts ensuring
certainty.
○​ Solitary reports (Ahad): Less certain, forming most Hadiths, providing probable
but not absolute knowledge.
●​ Islamic law accepts that not all rulings require certainty.
○​ Certainty is crucial for fundamental beliefs and primary legal sources.
○​ Most Hadith-based rulings offer probable knowledge, not absolute truth.
●​ Quran and Hadith language is sometimes ambiguous, requiring jurists to interpret terms
using linguistic rules.
○​ Jurists aimed to establish legal norms for new cases, focusing on ordering life
rather than state control.
●​ Shariʿa categorizes actions into five norms: forbidden (punished if committed),
obligatory (punished if omitted), recommended, neutral, and disapproved.
○​ Recommended and disapproved acts have no punishment but may be rewarded in
the afterlife.
 ●​ When interpreting imperatives in the Quran/Sunna, jurists debated whether they signified
obligation or other legal categories.
●​ Justification for consensus relied on reports suggesting divine protection from error,
despite no direct Quranic basis.
●​ Consensus applied to a small fraction of cases but carried great authority, equating them
with Quranic and Hadith texts.
●​ Jurists used reasoning methods like qiyas (analogy), istislah (public interest), and istihsan
(juristic preference) to derive legal norms.
●​ Qiyas involves comparing a new case to an established ruling based on shared attributes.

Emon, Islamic Law and the State (2021) 174-177

●​ 9/11's impact on research:

○​ Marked a shift in what is studied, by whom, and how.
○​ Introduced a security-conscious environment with immigration restrictions.
○​ Led to a stronger surveillance of academics and their work (e.g. Campus Watch,
UK’s PREVENT program).
○​ Scholars in various fields (law, psychology) now focus on combating 'Islamic
extremism' in the context of state security.
●​ Selective constructions of 'Islam' and 'Muslim':
○​ 'Islam' and 'Muslim' are terms used strategically in governance projects.
○​ Debates, such as the Sharia law bans in the U.S., often reflect state values (e.g.,
democracy, rule of law).
○​ Example: Tennessee’s Sharia bill, where Sharia is framed as a threat to U.S.
sovereignty.
●​ Use of Sharia in Muslim-majority states:
○​ Muslim-majority states issue reservations to international treaties, citing Islamic
law.
○​ Example: Reservations to CEDAW that preserve patriarchy in family law.
●​ Global and local deployment of 'Islamic' laws:
○​ Saudi Arabia's contradiction between domestic fatwas (e.g., against insurance)
and international insurance market regulations.
○​ State uses Islamic law selectively to appease both domestic conservative groups
and international partners.
●​ 'Islamic' and 'Muslim' as 'sliding signifiers':
○​ These terms are unstable, meaning they change in meaning depending on context.
○​ Policy decisions (e.g., War on Terror) treat 'Islam' as a fixed object, while it is
actually a flexible concept.
○​ The state uses constructions of 'Islam' to justify and normalize policies such as
surveillance, immigration, and refugee law.
●​ Conclusion:
 ○​ Understanding the deployment of 'Islam' and 'Muslim' requires examining the
intersection of epistemic assumptions (how knowledge is constructed) and state
practices (how that knowledge is used).

Module 7: Tying threads together: Law as rights, or the right to have rights

Arendt, The Origins of Totalitarianism, Ch 9, 290-302

●​ The Declaration of the Rights of Man, established at the end of the 18th century, was a
significant shift in history
○​ It marked a movement away from laws based on divine commands or historical
customs to laws rooted in human agency.
■​ It signified man's emancipation and coming of age, signaling
independence from historical privileges given to certain social groups or
nations.
■​ This declaration was also intended to provide protection in a new era
where individuals were no longer tied to the estates they were born into,
nor assured of their equality before God.
●​ In this secularized society, human rights became essential, as they were no longer
guaranteed by religious or social forces, but were now invoked when people needed
protection from the state or societal authority.
○​ The rights were described as "inalienable" and derived from human beings
themselves, not external authorities.
■​ The declaration presented humans as sovereign in legal matters, with
people being sovereign in governance.
■​ The idea was that "inalienable" rights would naturally become part of a
people's right to self-government.
●​ However, a paradox existed in that these rights were based on an abstract concept of man,
but even primitive societies had some form of social order.
○​ Human rights were linked to national sovereignty; they were seen as
achievable only within the context of a nation's self-government.
○​ Human rights were then associated with national emancipation, and only
emancipated nations were believed to guarantee human rights.
●​ The realization that many people, such as minorities or stateless individuals, did not have
their basic rights protected in the nation-state system brought attention to the flaws of the
declaration.
○​ Human rights, which were supposed to be independent of governments, turned
out to be difficult to protect without state structures to uphold them.
●​ Stateless people and minorities believed that losing national rights equated to losing
human rights.
 ○​ Refugees and displaced people began to identify strongly with their national
identities, seeking protection from their "national" governments or forming
solidarity based on ethnicity or religion.
●​ The attempts to protect human rights through international bodies were often ineffective.
○​ These bodies were often ignored or opposed by governments and the people they
sought to protect, and they were seen as disconnected from the reality of national
sovereignty.
○​ Furthermore, the concept of human rights was difficult to implement in practical
political terms.
●​ Political parties, even in times of urgent need, did not prioritize human rights as a central
part of their programs.
○​ The "Rights of Man" were meant to be universal and inalienable
■​ but they became unenforceable when people found themselves stateless
and without government protection.
●​ These rights were often ignored when people were no longer citizens of any state.
○​ The confusion surrounding human rights grew as more people lost their basic
rights, and no clear definition existed of what human rights were, separate from
civil rights.
○​ Stateless people experienced significant losses, including the loss of their homes
and the social structures they were part of.
○​ While the loss of a home is not new in history, the inability to find a new one
without restrictions was unprecedented, driven by political organization rather
than overpopulation.
○​ Stateless individuals also lost government protection, leaving them without legal
standing in any country.
●​ International treaties typically ensured citizens' legal status across borders, but stateless
people had no such protections.
○​ While the right to asylum had been a practice in the past, it was no longer
effective as the number of persecuted individuals increased.
●​ Many refugees were persecuted not for political or religious reasons but due to
immutable characteristics like race, class, or government affiliation.
○​ As the number of stateless people grew, there was increasing difficulty in
addressing their plight, as they were often persecuted under political pretenses but
had no legal or national support.
●​ The issue of people who are deprived of rights is not about lacking life, liberty, or
happiness, but about being excluded from any community.
○​ Their suffering isn't that they lack legal equality, but that no law applies to
them.
■​ They aren't oppressed because no one even bothers to oppress them.
 ○​ They become a "superfluous" population, at risk only if no one claims them, as
seen with the Nazis and the Jewish people.
○​ Freedom and safety don't change their condition of rightlessness.
■​ Even if they have freedom of movement or opinions, they don't have a
true right to safety, residence, or meaningful opinion.
●​ Their survival is dependent on charity, not on any legal right.
●​ A fundamental deprivation of rights happens when a person no longer has a
meaningful place in the world where their actions and opinions matter.
○​ This is worse than a lack of freedom or justice.
○​ They lose the right to act and to have their opinions matter.
○​ Their treatment is random and based on chance, not on their actions or merits.
○​ The right to belong to a community is a core human right, but this is lost when
one is stateless or not part of any society.
●​ Historically, even slaves had some place in society, even if exploited.
○​ The loss of belonging to a community, not just rights, is the true calamity.
○​ The right to have rights isn't something mentioned in historical human rights
documents, as they assumed rights were inherent from nature or divinity.
●​ Modern views question the idea of human "nature" as a source of rights.
○​ Humanity has advanced to a point where nature and history no longer define
human essence.
●​ Today, humanity itself is more important than nature or history in defining human rights.
○​ The right to belong to humanity should be guaranteed by humanity itself.
○​ However, international law doesn’t yet have the power to enforce this, and it's
unclear if it ever will.
●​ A "world government" may not solve the issue, as majoritarian views could justify
harmful actions for the "greater good."
○​ Historical and religious concepts of law and rights, such as those of Plato, are
challenged in today's political context.
●​ Edmund Burke’s opposition to the idea of universal human rights seems relevant today.
○​ Burke argued rights come from within a nation, not from abstract concepts of
humanity.
●​ The restoration of rights often requires the re-establishment of national identities, as seen
in the case of Israel.
○​ The failure of the concept of universal human rights is exposed when people lose
all specific qualities except their humanity.
○​ The world struggles to value people as simply human without belonging to a
nation or community.

Williams, Alchemical Notes: Reconstructing Ideas from Deconstructed Rights (1987) 97-105

The Brass Ring and the Deep Blue Sea

 ●​ A society of priests builds a Celestial City secured by word-combination locks.
○​ They master "Word Magic," gaining increasing levels of power and treasure.
○​ The most powerful priests become gods and entertain themselves with games.
○​ Their ultimate pursuit is "Superstanding," the highest level of refined knowledge.
●​ Some priests-turned-gods reject the endless pursuit of knowledge as meaningless.
○​ They become pilgrims again, learning the "Undoing of Words."
○​ Beyond the City lies the Deep Blue Sea, where they sail in search of new
knowledge.
○​ Eventually, they reach a place "Beyond the Power of Words" and experience
godhood anew.
●​ Beneath the Celestial City, mortals suffer under the trampling of the gods’ games.
○​ Drowning mortals in the Deep Blue Sea reach for dangling anchors, believing
them to be lifelines.

The story

●​ The parable represents Critical Legal Studies (CLS) and its approach to law.
○​ CLS deconstructs legal structures but often fails to address the lived realities of
marginalized people.
●​ As a new lawyer, the author saw the overwhelming presence of poor, Black, and Hispanic
defendants in court.
○​ Many viewed lawyers as gods, reaching out for help with desperation and
mistrust.
○​ The author, as one of the few lawyers of color, received more direct appeals for
help.
●​ CLS criticizes "rights" as illusions but fails to make legal theory practical for the
marginalized.
○​ It risks treating legal advocacy as futile, undermining the struggles of oppressed
communities.
○​ The black struggle for civil rights cannot be dismissed as naïve or misguided.
●​ Rights are often selectively applied, used to exclude and control marginalized
people.
○​ However, for disenfranchised groups, rights assertion is a crucial form of
empowerment.
○​ White and Black communities experience rights differently—whites may see
rights as abstract, while Black individuals often experience them as real struggles
for survival.
●​ The author argues that legal scholars must reconnect with real-world struggles.
○​ The goal is to move beyond theoretical debates and make law tangible, reachable,
and useful for those who need it most
A tale with two stories

●​ Peter Gabel and the author co-taught a contracts class.

○​ Both moved from California to New York and searched for apartments at the
same time.
■​ Peter Gabel paid a $900 deposit in cash without a lease, receipt, or key
exchange.
●​ Relied on a handshake and good vibes as indicators of trust.
●​ Believed formal contracts imposed unnecessary distance and
formality.
●​ His trust paid off—his sublessors honored their agreement.
■​ Author signed a detailed, formally negotiated lease.
●​ Wanted to demonstrate trustworthiness through legal
documentation.
●​ Preferred formal, structured agreements for security and
legitimacy.
○​ Both wanted to build relationships with landlords and establish trust.
■​ Their different life experiences shaped their perspectives on contracts and
trust.
●​ As a white, male, and lawyer figure, Peter was aware of the power
he represented.
○​ Avoided formal power structures to build trust in an
informal, human way.
■​ As a Black woman, the author was accustomed to being perceived as
untrustworthy, powerless, or irrational.
●​ Legal formalities (like leases) were essential for proving credibility
and securing her place in business transactions.
●​ Grew up where landlords often refused to sign leases with Black
tenants, making informal agreements a sign of distrust rather than
trust.
○​ Peter: Saw formal contracts as alienating and dehumanizing; Author: Saw
formal contracts as necessary for recognition, independence, and equality.
●​ Critical Legal Studies (CLS) and the Rights vs. Needs Debate
○​ Empowerment Shapes One’s View of the Law
■​ Trust vs. mistrust
■​ Formality vs. informality
■​ Rights vs. needs
○​ Some CLS scholars argue that “needs” should be emphasized over “rights.”
■​ The author argues that “needs” are often just another form of “rights”
discourse.
 ■​ Rights rhetoric has historically been effective for Black communities in
achieving social change.
●​ The Importance of Perspective
○​ Words and concepts can hold different meanings for different people.
○​ Recognizing multiple perspectives is crucial to understanding justice and legal
structures.
○​ A personal childhood anecdote illustrates that even concrete things (like the color
of a road) can be seen differently yet simultaneously.

Listen to Taylor, Barons or Commoners? (2023, approx. 1 hour), Part 2 of Taylor’s Massey
Lectures

Revisit Charlesworth, Human Rights and the Rule of Law After Conflict, especially
concluding discussion of socioeconomic rights

Law as practice (or socio legal traditions, Part I) | March 12th, 2025

Macdonald at I.C (page 3, on socio-historical perspectives), and II.B-C (pages 7-8)

What are some key features of socio legal scholarship (or "law and society" scholarship) that
Macdonald identifies? Create a list that we can use as a basis for our discussion

👉 What does Macdonald say about how law is connected to society, culture, and history?

●​ Socio-legal scholarship examines the interaction between law and society, exploring
how laws influence social structures and how societal factors shape legal systems.
●​ Socio-historical perspective
○​ Law is deeply connected to social mores, customs, and practices
○​ Law isn’t just about official rules—it also comes from everyday social behaviors
and traditions.
○​ Instead of laws being imposed from the top down, they often come from the way
people live and interact over time (bottom up approach)
○​ Customary law theorists, before the 18th century, who argued that law emerges
from established social customs and traditions.
 ●​ Law and power: a critical perspective
○​ Law is not neutral but reflects power dynamics in society.
■​ It serves as an instrument of class oppression (Marxist critique) or a tool
for maintaining social hierarchies.
■​ "Scholars such as Hugh Collins, Judy Fudge, Harry Glasbeek, and
Michael Mandel applied the tools of Marxist analysis to develop a critique
of law as an instrument of class oppression."
●​ Postmodern legal critique
○​ Challenges traditional legal reasoning by questioning the very foundations that are
often associated with law
■​ Derrida’s deconstruction focuses on how texts (including legal texts) are
full of contradictions and ambiguities, and thus cannot be interpreted in a
singular, objective way.
■​ Foucault’s theories of power suggest that law doesn’t just regulate
behavior but is part of larger systems of power that shape society, often
subtly and insidiously.
■​ Lacan’s psychoanalysis suggests that law is also shaped by unconscious
desires, fears, and drives, which are often not acknowledged in traditional
legal reasoning.
●​ Legal pluralism
○​ Legal pluralism aligns with Macdonald's view that law is connected to society,
culture, and history by recognizing multiple legal systems within society, such as
state law, community norms, and customary laws. Socio Legal scholarship
highlights how marginalized groups develop their own legal traditions,
showing that law is culturally and historically shaped, not limited to formal
state structures.
■​ Instead of viewing state law as the only form of law, sociolegal studies
recognize the existence of multiple legal systems within society, such as
customary laws, community norms, and international regulations.
■​ Scholars explored how different groups (especially marginalized ones)
develop their own legal traditions and ways of resolving disputes.
○​ "Many of those in this field were anthropologists and sociologists who attempted
to disassociate law from the political state and look at the range of informal legal
orders that existed in various social sites."

👉 Notes

C. Socio-Historical Perspective

●​ Theories of Law and Social Mores

 ○​ Some legal theories emphasize the role of social mores, customs, practices, and
usages as fundamental to law.
■​ In other words, Law isn’t just made by governments; it also develops
naturally from the customs and traditions of a society.
○​ These theories argue that law is not solely a creation of formal legislative bodies
but emerges organically from societal traditions and practices.
■​ Instead of laws being imposed from the top down, they often come
from the way people live and interact over time.
●​ Montesquieu and the Historical-Cultural-Social Theory of Law
○​ Montesquieu is credited with shaping a historical-cultural-social approach to law.
■​ He was the first to argue that law is shaped by a society’s unique history
and culture.
○​ He believed each society developed its own unique legal perspectives based on
its cultural and historical context.
■​ Different societies create different types of laws based on their own
traditions and ways of thinking.
○​ However, he also acknowledged the role of universal reason in shaping law.
■​ While laws are influenced by culture, Montesquieu also believed that
some legal principles are universal and based on reason.
●​ Before the 18th century, legal arguments often blurred the lines between:
○​ Non-Catholic natural law theorists, who sought law’s origins and purposes in
reason and universal principles.
■​ Some legal thinkers believed that laws should be based on logic and moral
principles that apply everywhere.
○​ Customary law theorists, who argued that law emerges from established social
customs and traditions.
■​ Others thought law should come from long-standing traditions rather than
abstract principles.
○​ Example: Antigone’s Argument
■​ The play presents two justifications for defying the state’s law:
●​ Universal reason (divine or natural law).
○​ Antigone believes there are higher moral laws that override
human-made laws.
●​ Social mores (customary obligations to family and tradition).
○​ She also follows traditions and social expectations that say
family loyalty is more important than government rules.
●​ Early arguments emphasized that true law comes from long-standing social practices:
○​ People historically followed laws that grew out of their everyday lives, like rules
in villages or trade markets.
 ○​ The law of the Prince (i.e., centralized authority) was seen as an external
imposition of power rather than an organic reflection of society’s legal spirit.
●​ 19th Century: The Rise of Nationalism and Historical Jurisprudence
○​ Neo-Hegelian scholars, such as von Savigny, expanded historical-cultural
jurisprudence.
■​ legal scholars built on the idea that law should reflect a nation's
history and traditions.
○​ He argued that law should reflect the Volksgeist (the spirit of the people).
■​ Laws should match the values and identity of a nation’s people.
○​ If people were not ready for legislative reforms, jurisprudence
(customary/common law) should guide legal development.
■​ So courts should rely on long-standing traditions instead.
○​ Napoleon’s Civil Code was similarly tied to French nationalism, reinforcing the
idea that law serves national identity.
■​ Napoleon used law to unite France, just like von Savigny wanted German
law to reflect German culture.
●​ Historical-Cultural Approach in Common Law Traditions
○​ Several legal thinkers in English-speaking countries also supported the idea that
law evolves from history and culture.
■​ Leading figures include:
●​ J.C.C. Carter, Henry Maine, F.W. Maitland, and Oliver
Wendell Holmes.
○​ Holmes' famous assertion:
■​ "The life of the law has not been reason, but experience."
●​ Laws are shaped more by real-life experiences than by abstract
logic.
●​ Contemporary Perspectives: Pluralism and Social Science
○​ Modern scholarship integrates historical and social perspectives with pluralist
legal theories.
■​ legal scholars recognize that multiple factors—history, culture, and social
differences—all shape the law.

B. Legal Process, Law and Society and Socio-Legal Studies

●​ New ways of thinking about law started gaining popularity alongside critiques of legal
realism.
●​ Traditional Marxist legal theory, which had been relatively quiet in Europe and North
America, was revived.
○​ Scholars such as Hugh Collins, Judy Fudge, Harry Glasbeek, and Michael Mandel
used Marxist analysis to critique law as a tool of class oppression.
 ■​ These scholars believed that law mainly served the interests of the
wealthy and powerful at the expense of the working class.
●​ Unlike earlier Marxist approaches, these analyses were highly sophisticated and
examined legal institutions and processes in great detail.
○​ Instead of broad, simple arguments, these scholars carefully studied how law
works to benefit the elite.
●​ However, they all assumed that the only important legal structures were those created by
the political state.
○​ They focused only on government-made laws and ignored other forms of law.
●​ In recent decades, globalization has led scholars to recognize that law is shaped by
economic and political forces beyond the state.
○​ Institutions like the WTO, the World Bank, and the IMF have created powerful
legal systems that affect global trade and finance.
■​ These organizations make rules that impact countries worldwide, even
though they aren’t traditional governments.
●​ International Human Rights and International Criminal Courts also emerged, showing
that law isn’t only controlled by national governments.
○​ Human rights laws and courts operate across borders and influence how countries
treat people.
●​ This led to the realization that legal structures can exist outside of state control.
○​ Law isn’t just made by governments—it can come from global institutions,
economic conditions, and social movements.
●​ The 1960s saw the rise of "law and society" scholarship, mainly from left-leaning
scholars with a strong focus on empirical research.
○​ Scholars started studying law by looking at real-world evidence rather than just
abstract theories.
○​ This movement attracted historians, political scientists, linguists, and cultural
studies experts.
■​ Researchers from different academic fields started analyzing law from
multiple perspectives.
○​ Most law and society scholars were not committed to a specific legal ideology.
■​ They studied law critically but didn’t argue for a particular way that law
should function.
●​ A specific branch of law and society scholarship was the "legal process" school and the
"eunomics" project.
○​ These scholars studied how law functions in society but with a focus on legal
rules and order.
●​ This dimension of law and society scholarship was taken up by those who
considered themselves to be partisans of the "socio-legal studies" movement.
 ○​ Anthropologists and sociologists in this field tried to separate law from the
political state.
■​ They looked at informal legal orders in different social settings.
●​ They studied how communities create their own legal systems
through customs, traditions, and social norms.
○​ Decolonization studies and movements for ghetto empowerment influenced
theories of legal pluralism.
■​ Scholars explored how different groups (especially marginalized ones)
develop their own legal traditions and ways of resolving disputes.
●​ There is still a divide in socio-legal studies between two groups:
○​ Statists: Traditional law and society scholars who believe legal theories should
prescribe how law should function.
■​ They think law should be studied with the goal of improving it.
○​ Relativists: Scholars who argue that the state should not be the central focus of
legal studies.
■​ They believe law exists beyond government control and should be studied
in a broader social context.

C. Postmodern jurisprudence

●​ The 1970s and 1980s were important decades for legal theory, especially in North
America, Europe, and Australia.
○​ During this time, scholars expanded on earlier realist critiques, leading to
"pragmatic positivism with a critical edge."
●​ There was also renewed interest in studying law through history, sociology, and
anthropology, leading to "critical socio-legal studies."
●​ A new approach called postmodernism was introduced to legal analysis
○​ Describing postmodernism in legal studies is difficult because there is no single
postmodern approach.
●​ There is no one way to apply postmodernism to law—it depends on the scholar's
focus.
○​ Scholars like Ricoeur, Derrida, and Foucault studied how power is created and
maintained through law.
■​ They explored how legal systems justify authority and maintain control
over people.
○​ Key scholars in this area include Alan Hunt, Costas Douzinas, and Peter
Goodrich.
■​ These thinkers applied postmodern ideas to legal theory.
●​ Some scholars focused on how language shapes law.
○​ They used ideas from hermeneutics (interpretation theory) and discourse theory.
 ■​ They studied how the way we talk about law influences its meaning and
function.
●​ Manderson’s article "Apocryphal Jurisprudence" explores how postmodernism fits into
legal writing.
●​ Postmodern legal theory builds on earlier critiques while adding a deeper understanding
of language, power, and meaning.
○​ Indeterminacy theory (the idea that law is uncertain) has been expanded by
Derrida’s deconstruction.
■​ Derrida's work showed how legal rules can be interpreted in many ways.
○​ Studies of power in law have been enriched by Foucault’s ideas on surveillance
and government control.
■​ Foucault explained how laws are used to monitor and control people.
○​ Psychology in law has been influenced by Freud and Lacan’s psychoanalysis.
■​ Scholars started using theories about the human mind to understand legal
behavior.
○​ The study of law has been expanded through literature, discourse analysis, and
semiotics (the study of signs and symbols).
■​ Scholars looked at law not just as rules but as a cultural and symbolic
system.
●​ The impact of postmodern legal theory has been to break down barriers between law,
social sciences, and humanities.
○​ Postmodernists reject rigid, old-fashioned ways of studying law.
●​ Postmodernism can be applied to almost any legal critique because it questions how
knowledge is created.
●​ It can be used in many different areas of legal theory.
●​ Despite rejecting state-centered views, most postmodern legal writing still focuses on
how states use power.
○​ Some scholars combined postmodernism with legal pluralism (the idea that
multiple legal systems can exist at once).
■​ This perspective is called "critical" or "radical" legal pluralism.

Seron & Silbey, Profession Science & Culture(2004) 30-51

Seron and Silbey propose that the law and society movement was born when scholars began
examining how law is "made on the streets or 'in action'" (at 34). From that starting point,
some scholars would also assess to what extent law in action reflects, or diverges from, the
promises made by law "on the books" (i.e., in statutes, but also in court judgments).
👉 To what extent does Seron and Silbey's framing of sociolegal scholarship (i.e., as an
approach that compares law in action to law on the books) reflect a positivist (perhaps a "legal
realist") starting point? To what extent might it reflect some of the tendencies of natural law?

👉 As you prepare responses to these two questions, find one or two examples from Seron and
Silbey's text to use as evidence or support for your position.

●​ Seron and Silbey’s Framing Reflect a Positivist (or Legal Realist) Starting Point
○​ Seron and Silbey emphasize studying how law operates in practice rather than just
its formal rules. This reflects legal realism, a movement that rejected the idea that
legal outcomes are dictated solely by legal texts and instead looked at how factors
like judges’ backgrounds and social pressures shape decisions​.
○​ Legal realism and positivism share a methodological focus on empirical
observation.
■​ “Some researchers build on a tradition to study the ‘gap’ between law on
the books and law in action… nonetheless, the themes and frameworks
build from a legal realist foundation”​.
●​ Positivism sees law as a system of rules that should be studied scientifically. Seron and
Silbey emphasize that socio legal scholars use scientific methods to analyze how law
works in reality, rather than relying on abstract legal principles​.
○​ “Scholars used the newly minted methodologies of social science to answer the
legal realists’ question – does law deliver on its promise?”​.
○​ This reflects a positivist approach because it analyzes law as an observable
system, rather than debating moral or philosophical ideals.
●​ While positivism seeks to describe law as it is, natural law theory considers law’s moral
foundations. Seron and Silbey acknowledge that law is not just a set of rules but also
a cultural system that shapes justice and fairness​.
○​ They highlight Philip Selznick’s work, which argues that law embodies societal
values and acts as “the bridge between justice and community”​. This aligns with
natural law’s view that legal systems should reflect universal moral principles.
○​ Their argument that “law is everywhere” (in schools, hospitals, and everyday life)
supports the idea that legality is embedded in social and ethical structures, a
perspective closer to natural law​.
●​ Law as Separate from Morality
○​ Legal positivism rejects the idea that law is inherently tied to justice or morality.
Seron and Silbey’s research highlights how law does not always deliver fairness
but still functions as a system. This aligns with Hart’s positivist theory, which
argues that unjust laws are still laws as long as they are enacted properly.
○​ Example:
 ■​ “Legality is not what it claims to be: it is both less and more; it is also
raced, gendered, and unequal”​.
■​ This suggests that law operates independently of moral ideals, which is a
key positivist argument.
●​ Positivism argues that law derives its authority from institutions (legislatures, courts,
etc.), not from morality. Seron and Silbey’s work acknowledges that the legal system
operates as a structured institution that applies rules through courts, police, and
regulatory bodies​.
○​ For example, police officers often make decisions based on "situational
exigencies" rather than strictly adhering to legal codes.
■​ This practice aligns with legal realism, which emphasizes that law is not
just a set of written rules, but is influenced by human judgment and social
factors.
○​ Bittner (1970) supports this view by stating that no matter how detailed formal
instructions become, there will always be a need for further interpretation based
on the specific circumstances of a situation.
■​ ‘‘no matter how far we descend on the hierarchy of more and more detailed
formal instructions, there will always remain a step further down to go, and no
measure of effort will ever succeed in eliminating, or even in meaningfully
curtailing, the area of discretionary freedom of the agent whose duty is to fit rules
to cases’’(Bittner, 1970).
●​ Law in action is shaped more by practical, on-the-ground decisions
than by rigid legal codes.
○​ Overall it seems like there is tension between the written law (law on the books)
and how law is applied in practice (law in action), as police officers may apply
discretion and judgment to adapt to the needs of a situation, potentially diverging
from the formal legal guidelines.

👉 Notes

●​ The “site” of social action matters to the meaning and organization of that action
○​ Law and society research has evolved over decades by focusing on the importance
of context in understanding law.
○​ There has been a shift from large-scale theories to more situated and empirical
studies of how law functions in society.
○​ The field bridges behavioral and structural, as well as micro and macro,
perspectives.
○​ Law is both formal and informal; it exists within society, rather than separate from
it.
○​ The study of legality has shown that law is not neutral—it is shaped by race,
gender, and social inequalities.
●​ Tracing the Origins of the Canon: Antecedents and Intellectual Currents
○​ Law and society research has roots in Marx, Weber, and Durkheim, who studied
law in relation to modernization and social change.
○​ American legal realism influenced early law and society scholars by emphasizing
the difference between law on the books vs. law in action.
○​ Legal realism questioned whether the law truly delivered justice and fairness in
practice.
○​ Early American law and society research focused on empirical studies rather than
grand theoretical frameworks, making it distinct from its European counterparts.
●​ Law and Modernization
○​ Durkheim: Law is a reflection of the "collective conscience" and changes with
society’s division of labor.
○​ Weber: Modern legal systems are built on formal rationality and bureaucracy,
creating tensions between predictability and substantive justice.
○​ Marx: Law is an ideological tool that conceals and reinforces class inequalities.
○​ Unlike these European theorists, American law and society research focused more
on empirical observation than theoretical explanations of modernization.
●​ The Empirical Study of Law-in-Action
○​ “To the traditional legal scholars’ claim that law can be explained through the
close reading of texts, its own printed materials, the turn of the century law and
society scholar responded that law must be understood and explained
empirically, as it is practiced and implemented in various formal and
informal institutional settings (‘‘law in action’’) (33)
■​ American legal realists argued that law cannot be understood just by
reading legal texts—it must be studied in practice.
○​ Researchers examined how legal norms operated in courts, policing,
administrative agencies, and informal settings.
○​ The field evolved into specialized studies of different legal institutions, using
quantitative and qualitative methods.
●​ Professionalization of Law and Society
○​ Law and society developed academic programs, associations, and journals, but it
remains somewhat marginalized compared to other social sciences.
○​ Unlike law or political science, it lacked a single core theoretical framework to
unify its research.
○​ Specialization in different legal fields (e.g., courts, policing, regulation)
strengthened the discipline but also fragmented it.
○​ Despite professionalization, most law and society scholars remain housed in
traditional social science departments rather than in distinct law and society
programs.
●​ The Classics of Law and Society
 ○​ “Law in action unfolds in court-rooms between judges and lawyers, among lawyers in
their private offices, behind closed doors when juries make decisions, in negotiations
among bureaucrats in regulatory agencies, on the street where police officers meet
citizens, or in the actions and minds of citizens themselves when they make demands of
the law, or contem-plate and decide that this is not a matter for law” (35)
○​ Students of law and society have historically pursued the study of law-in-action in
(1) courts, (2) lawyers’ offices, (3) juries, (4) regulatory agencies, (5) police work,
and (6) citizens’ interactions with those legal actors and agencies
○​ The field is built on foundational studies of courts, disputes, legal professionals,
policing, and administrative regulation.
■​ Over time, how-ever, as the discourse and exchange developed, law and
society scholars began to deconstruct their own categories and
terminology and began to seek out thetraces of legality in spaces further
removed from formal or official law, for example,in theaters, homes, and
hospitals
○​ Research has revealed key insights:
■​ Legal resources are unequally distributed; access to justice depends on
wealth and power.
■​ What may seem deviant from a legal perspective is often normal practice
in real-world settings.
■​ Lawyers’ identities and roles vary based on their clients, education, and
workplace setting.
■​ Law is both a structure and a process, shaping and being shaped by
society.
●​ Courts
○​ Early studies focused on how judges’ backgrounds influence their rulings.
■​ “Growing out of a behavioral approach that takes ‘‘the behavior of individuals
or groups of individuals as the primary unit of analysis’’ (Ulmer, 1961: 1), a
large body of research developed early in the 1950s and 1960s that explained
judicial activity at the appellate level as a function of judges’ background and
political ideology” (37)
○​ Later research examined day-to-day interactions in courts, revealing bureaucratic
inefficiencies and inequalities.
■​ Blumberg (1967) showed that criminal courts prioritize speed and
efficiency over substantive justice.
●​ “He concludes that the day-to-day work of local courts is more
akin to a rational, efficient bureaucratic system than it is to a
procedurally fair, if slow, model of deliberative (judicial-like)
decision making guided by doctrinal rules and procedural
constraints. To study only the lofty reaches of appellate decision
 making, Blumberg implicitly claims, is to miss the main event in
local courts where most of the work of law takes place” (37)
■​ Feeley (1977) found that for many defendants, the legal process itself is a
punishment, not just the outcome.
●​ “Feeley displayed the ways in which efforts to do ‘‘good,’that is, to
ensure substantive justice, are regularly compromised. This supposedly
transparent and open system is fraught with politics, especially through
elections and patronage appointments” (38)
■​ Jacob (165) works dispels similar myths about local civil courts
●​ that the quality of justice depends on the quality of legal services
and its availability to the public, that the quality of legal services
available to a citizen is a function of that citizen’s wealth and his or
her ability to p
■​ Galanter (1974) demonstrated that repeat players (large organizations)
tend to have more legal success than one-shot players (individuals).
○​ Courts are complex social institutions embedded in networks of relationships
which both enable and constrain the courts’ work
■​ Where efficiency trump effectiveness, administration of justice trumps
adjudication, these findings show
○​ “Across a wide body of research at various tiers, law and society studies show that the
work of courts is locally shaped and culturally entwined in place and
setting.Idiosyncratic and particularistic practices develop among teams or work groups
and between and among judges, lawyers, and court personnel to shape the disposition of
legal matters, the constitution of subjects and communities, as well as the quality of
justice and the meaning of the rule of law” (39)
●​ Disputing
○​ The Cheyenne Way
■​ Llewellyn and Hoebel (1941) studied "trouble cases" to show how legal
norms emerge from social conflicts.
●​ studying law must begin before law, or legal norms, emerge
●​ “Hoebel and Llewellyn threw out the lawyer’s understanding of laws
organized social control and violence and replaced it with a notion of
law as a system of normative regulation with four basic functions:
disposition of ‘‘trouble cases’’; preventive channeling, orientation, and
expectations to avoid conflict; allo-cation of authority; and ‘‘net drive’’
providing incentive, direction, and harmoniza-tion of activity” (39)
○​ Dispute resolution occurs outside of formal legal institutions.
■​ “Anthropologists were not, however, alone in noticing that much law-like activity
took place outside of the formal institutions of law, or in noting the virtue of
studying trouble and dispute” (40)
 ○​ Llewellyn and Hoebel (1941) studied "trouble cases" to show how legal norms
emerge from social conflicts.
○​ Macaulay (1963) found that businesses often avoid using formal contracts, relying
instead on informal agreements.
○​ The Civil Litigation Research Project (1980s) revealed that most people avoid
using the legal system, choosing to "lump" their disputes rather than litigate.
○​ So much of everyday life and normativity was saturated with law, providing
additional concepts with which to understand cultural and social phenomenon
●​ Lawyers
○​ Law is not a unified profession—it is divided by class, race, gender, and client
type.
○​ Carlin (1962): Solo practitioners face economic struggles and ethical dilemmas.
○​ Smigel (1969): Wall Street law firms are highly stratified by ethnicity and class.
○​ Heinz & Laumann (1982): The legal profession is split into two
hemispheres—those serving individual clients vs. those serving corporate clients.
○​ Epstein (1998): Women in elite law firms face systemic barriers and are pushed
into lower-status specialties.
●​ Juries
○​ Kalven & Zeisel (1966) found that juries usually agree with judges, but when they
differ, jurors tend to focus on fairness over strict legal interpretation.
○​ Simon (1967) studied jury decision-making in insanity cases, showing that jurors
want more flexible options than the legal system provides.
○​ The Chicago Jury Project (1950s) was one of the first large-scale empirical
studies of jury behavior.
●​ Policing
○​ Research on policing emerged from civil rights movement concerns about police
power and discrimination.
○​ Skolnick (1966), Reiss (1971), and Bittner (1970) found that policing is shaped by
social expectations and discretion.
○​ Police officers operate in ambiguous situations, where formal legal rules do not
always guide decisions.
○​ Black & Reiss (1967): Police behavior is influenced by citizens' social status and
demeanor.
○​ Courts attempted to impose legal restraints on police, but in practice, officers still
have broad discretion.
●​ Conclusion: The Role of Law and Society in Social Science
○​ Law and society research has expanded beyond its original focus on legal realism
to engage with broader social and cultural theories.
○​ The field contributes to contemporary social science by emphasizing:
■​ The contingency of law (how law varies across contexts and time periods).
 ■​ The importance of empirical studies over abstract legal reasoning.
■​ The interplay between legal institutions and social structures.
○​ Law and society remains interdisciplinary, engaging with sociology, anthropology,
political science, and history.
○​ Moving forward, it must continue bridging theory and empirical research to
solidify its role in mainstream social science.

Arthurs, Labour Law Without the State? (1996) read pages 1-4 (Part I), skim Parts
II and III for important context (pages 4-32), focus on Parts IV and V (pages 32-45

Why might we describe Arthurs' argument, especially as it is developed in Parts IV and V, as a

sociolegal argument?Which features (i.e., Arthurs' methods, sources of evidence, style of
argument) suggest that it is socio legal? Identify 1-2 to support your answer.

●​ Arthurs' argument as socio legal:

○​ Method:
■​ Arthurs uses an interdisciplinary approach, combining law with history,
politics, and social realities.
●​ This allows him to explore not only the formal structure of labour
law but also how it functions within broader societal contexts.
■​ Example: He discusses how U.S. labour law influenced Canada and how
multinational companies shape local labour law practices. This shows he
looks at law in the broader social and political context, typical of
sociolegal studies.
○​ Sources of evidence:
■​ Arthurs pulls from a wide range of evidence, such as historical events,
political influences, and real-world practices in labour law.
■​ He uses both academic sources and practical case studies
■​ Example: He uses the history of U.S. law affecting Canadian law and the
role of unions in shaping labour law. This shows he uses both empirical
evidence (real practices) and legal theory.
●​ Not a purely legal argument, but interdisciplinary
○​ Style of argument:
■​ Arthurs focuses not just on legal rules but also on power dynamics and
social structures.
■​ Example: He considers how power relations and historical forces impact
the development of labour law. This is characteristic of socio legal
 scholarship, which connects law with society rather than treating it as
separate.
●​ showing that legal decisions are not isolated from social and
economic realities.

Why do you think that Arthurs would use a sociolegal approach to make the argument that he is
advancing? Could he make the same argument by simply using a positivist or natural law
approach?

●​ Arthurs' argument is that global labour law is not just about legal frameworks or human
rights but is deeply influenced by social, political, and economic forces
○​ He critiques how international labour laws fail to address issues like inequality,
the power of multinational corporations, and the challenges posed by
globalization
○​ He believes that these laws, while well-intentioned, don't always work in practice
because they are shaped by larger societal dynamics, such as class and capitalism.
○​ Therefore, a sociolegal approach, which considers both law and society, is
necessary to understand and address these issues effectively.
●​ A positivist and natural law approach would both be missing factors of his analysis
○​ Positivist approach would be insufficient for his argument, as it would exclude
critical social elements that are central to his critique.
○​ Natural law theory tends to focus on ideals /principles rather than the practical
realities of legal systems, which makes it less suitable for the empirical and
socio-political critique that Arthurs offers.

👉 Notes

PART IV and V

●​ Labour law is more localized compared to other legal fields like banking law or patent
law.
○​ Labour cannot be easily deployed globally like financial capital or raw materials
due to the need for technology, knowledge, and cultural understanding.
○​ Transferring labour across borders requires managing various factors such as local
work discipline, capital resources, and managerial structures.
 ○​ Often, only basic, repetitive elements of production are transferable, and
employers may work with existing local labour institutions.
●​ The local nature of labour law reinforces disparities between workers in different regions.
○​ Workers in advanced economies have more rights and entitlements than those in
less advanced economies, which attracts multinational employers seeking lower
costs.
○​ This disparity can lead to a "race to the bottom," with workers in advanced
economies competing with lower-paid workers in other countries, or workers in
less advanced economies facing higher labour costs.
●​ International efforts to standardize labour law have been made.
○​ The International Labour Organization (ILO) has worked since 1919 to encourage
universal labour conventions, focusing on issues like child labour and collective
bargaining.
○​ The European Union has sought to create a more ambitious transnational legal
framework for labour law.
●​ The emergence of a transnational legal field of labour law.​
This field is shaped by the practices of governments, unions, employers, and academic
discourse.
○​ Examples include the influence of U.S. labour law in Canada, especially since the
1930s, due to U.S. corporate penetration and union activity in Canada.
●​ U.S. influences on Canadian labour law.
○​ U.S. firms in Canada often followed U.S. labour-relations practices, shaping
Canadian labour law institutions and practices.
○​ The Wagner Act of 1935 inspired Canadian labour law, particularly after the
Canadian federal government introduced similar regulations in 1944.
●​ Canadian labour law's distinctiveness.
○​ While influenced by U.S. labour law, Canadian law has incorporated unique
features over time.
○​ Canadian academics have played a significant role in shaping labour law by
drafting legislation, conducting public inquiries, and influencing judicial
decisions.
●​ The relationship between academic influence and the development of labour law.
○​ Canadian labour law academics, influenced by institutions like Harvard Law
School, played a crucial role in shaping labour law policy and practice.
○​ However, the development of labour law is not solely a technocratic or academic
exercise; politics, history, and power also shaped its evolution.
●​ The potential impact of the Canadian Charter on the legal field.
○​ The 1982 Charter may reinforce Canada's subordination to U.S. labour law,
especially in procedural standards and constitutional dimensions of labour law.
 ○​ U.S. legal principles, especially from the Bill of Rights, have influenced Canadian
jurisprudence, particularly regarding freedom of speech, association, and equality.

Law as plural legal orders (or socio legal traditions, Part II) | March 12th, 2025

Valverde et al, Contested Law, Contested Societies(2021) 1-6

●​ In February 2020, a significant story regarding state law's legitimacy in Canada made
headlines.
○​ The issue began in British Columbia, where a proposed expansion of a natural gas
pipeline faced resistance from the hereditary chiefs of the Wet’suwet’en Nation.
○​ The Wet’suwet’en hereditary chiefs blocked the pipeline's progress by creating a
road blockade and refused to allow bulldozers and equipment through their
territory.
○​ The chiefs claimed that their land was 'unceded', meaning it had never been
legally acquired or purchased by Canada, unlike much of the land in Eastern
Canada.
○​ The company behind the pipeline sought a judicial injunction, which the police
enforced by arresting a few leaders and ensuring pipeline work could continue.
●​ The conflict between elected 'band chiefs' and hereditary chiefs was highlighted during
this event.
○​ The Canadian public was educated about the ongoing existence of hereditary
chiefs, despite the imposition of elected band chiefs on Indigenous communities
in the late 19th century.
○​ Elected 'band chiefs' are part of the settler colonial system created by Canada’s
Indian Act, which has often been in conflict with traditional Indigenous
governance systems.
●​ The situation escalated, moving beyond British Columbia to Ontario.
○​ In Ontario, Mohawks near Belleville blockaded a key train line linking Toronto
and Montreal.
○​ CN, the freight rail company, obtained an injunction from the court, demanding
the end of the blockade, but the Mohawks refused to comply.
○​ The Ontario Provincial Police (OPP) refrained from enforcing the injunction,
opting not to escalate tensions after their criticized history with Indigenous issues.
○​ The OPP did not remove the blockade or seize the trucks involved, avoiding
physical action against Indigenous activists.
●​ Tensions escalated, with solidarity protests spreading across Canada.
○​ Protesters blocked infrastructure in various cities, including Victoria, Vancouver,
Vaughan, and Niagara Falls, creating widespread disruptions.
 ○​ The private sector, including CN and VIA Rail, put pressure on the police and
politicians, leading to the cancellation of freight trains and other services.
●​ Prime Minister Justin Trudeau, trying to maintain a progressive image, faced political
challenges.
○​ Initially, he assumed the issue was resolved after the blockade in British
Columbia was removed.
○​ However, as protests grew across the country, Trudeau had to return from a trip to
Africa and address the issue.
○​ He stated that Canada was a 'country of the rule of law' but emphasized that
politicians should not direct police actions, which seemed to respond to
right-wing criticism.
●​ The notion of the "rule of law" was questioned and revealed inconsistencies.
○​ Oil and gas companies and right-wing politicians claimed the pipeline's
legitimacy, citing agreements with 20 elected band council chiefs.
○​ However, the Wet’suwet’en hereditary chiefs rejected this argument, asserting that
their land was not part of Canada and had never been subject to Canadian law.
○​ The hereditary chiefs argue that they are protectors of the land, adhering to their
own legal system, which they view as sacred.
○​ There was a clash between Canadian legal principles (based on the Indian Act and
settler colonialism) and Indigenous legal systems.
●​ This conflict over land and authority revealed deeper issues regarding the legitimacy of
different legal systems.
○​ The question arose: whose law is valid in these contested spaces, and what does
the "rule of law" actually mean in this context?
○​ The Wet’suwet’en hereditary chiefs' legal system conflicts with the settler colonial
framework imposed by the Indian Act.
○​ This conflict highlights broader struggles between Indigenous legal systems and
state-enforced laws, especially concerning resource extraction on Indigenous
lands.
●​ The situation in Canada was part of a larger global issue regarding Indigenous land rights.
○​ Indigenous peoples around the world are increasingly resisting the encroachment
of extractive industries on their traditional territories.
○​ The Wet’suwet’en conflict illustrates the broader clash between competing legal
systems, each claiming legitimacy over the same land.
●​ The "rule of law" principle also raised questions in other global contexts.
○​ For example, in France, the state’s ban on Muslim women wearing hijabs in
public spaces raises concerns about the conflict between Islamic law and French
secular law.
 ○​ Similarly, in the U.S., President Trump’s declaration of "absolute power" during
the COVID-19 pandemic raised issues about the relationship between presidential
power and the rule of law.
●​ The need for a more nuanced understanding of law in contemporary society is crucial.
○​ Socio-legal scholarship today focuses on the complex and overlapping legal
systems that shape our world.
○​ There is a growing recognition that nation-states' legal systems have always been
plural, with competing legal systems coexisting within them, particularly in settler
colonial contexts.
○​ The legal monopoly that states claim over law-making and enforcement is
increasingly seen as a fiction, as diverse legal systems and conflicting views of
law become more apparent.

Sally Merry, Legal Pluralism (1988) 869-92

○​ Evolution of the Concept of Legal Pluralism

○​ Merry highlights the shift in focus from studying indigenous law in colonized
societies as distinct from European law to recognizing that legal pluralism,
defined as the coexistence of two or more legal systems within the same social
field, is a prevalent feature of virtually every society.
■​ "Indeed, given a sufficiently broad definition of the term legal system,
virtually every society is legally plural, whether or not it has a colonial
past."
○​ Early anthropological work aimed to understand how social order was maintained
in colonized societies without European law, leading to the realization that these
societies possessed their own rich systems of social control, custom, and
customary law alongside imposed colonial law.
■​ "As they documented the rich variety of social control, social pressure,
custom, customary law, and judicial procedure within small-scale
societies, these anthropologists gradually realized that colonized peoples
had both indigenous law and European law."
○​ The imposition of European law was often framed by colonial powers as a
civilizing gift, but it simultaneously served to mold a cooperative labor force and
disregarded the complexity and legitimacy of pre-existing legal orders. The
"repugnancy principle" allowed colonial powers to selectively incorporate or
reject aspects of customary law.
■​ "In Africa, the British and the French superimposed their law onto
indigenous law, incorporating customary law as long as it was not
'repugnant to natural justice, equity, and good conscience,' or 'inconsistent
with any written law'..."
 ○​ Contemporary sociolegal scholarship extends the concept to analyze the interplay
between state law and non-state forms of normative ordering in all societies,
including advanced industrial ones. This includes formal rules within institutions
(factories, universities) and informal norms within social networks (families,
work groups).
■​ "According to the new legal pluralism, plural normative orders are found
in virtually all societies. This is an extraordinarily powerful move, in that
it places at the center of investigation the relationship between the official
legal system and other forms of ordering that connect with but are in some
ways separate from and dependent on it."
○​ Legal pluralism is generally defined as a situation where multiple legal systems
operate within the same social field.
○​ "What is legal pluralism? It is generally defined as a situation in which two or
more legal systems coexist in the same social field..."
○​ The "new legal pluralism" employs a broad definition of "legal system" to
encompass not only state-backed courts and judges but also non-legal forms of
normative ordering within institutions and informal social groups.
○​ Griffiths distinguishes between the social science view (empirical coexistence of
legal orders not belonging to a single system) and the juristic view (dual legal
systems created by colonial imposition, with subgroup law dependent on the state
legal system). Merry focuses primarily on the social science perspective.
■​ "Griffiths distinguishes between the 'social science' view of legal pluralism
as an empirical state of affairs in society... and what he calls a 'juristic'
view of legal pluralism as a particular problem of dual legal systems
created when European countries established colonies..."
○​ There is a lack of universally accepted terms for non-state law
■​ Terms like "custom," "customary law," "folk law," "indigenous law,"
"private government," and "private justice" carry unwanted connotations
or limitations.
■​ "There are a wide variety of terms used to discuss the parts which make up
legally plural societies: the systems or normative orders that make up a
legally plural situation. Each is discredited in various ways because the
term carries with it unwanted perjora-tive implications."
○​ Merry emphasizes the argument that "customary law" in colonial settings was
often not a straightforward reflection of pre-colonial practices but a new
form shaped by the colonial encounter, influenced by European legal categories
and the interests of the colonial state.
■​ "...a rich body of recent ethno/historical research in Africa, Indo-nesia, and
Papua New Guinea argues that the notion of an un-changing custom or
 even customary law was a myth of the colonial era, while customary law
itself was a product of the colonial en-counter..."
○​ Moore's concept of the "semiautonomous social field" is presented as a useful
framework for understanding plural legal orders. These fields can generate their
own rules and symbols and induce compliance but are also vulnerable to the
influence of the larger social matrix.
■​ "The most enduring, generalizable, and widely-used conception of plural
legal orders is Moore's notion of the semiautonomous so-cial field..."
○​ Relations Between Normative Orders:
○​ Early research viewed normative orders as largely separate. Later studies
highlighted the power of state law to reshape social order. Contemporary
perspectives emphasize a dialectical, mutually constitutive relationship between
state and non-state law.
■​ "Historically, there has been a shift in the way the interaction between
legal or-ders, particularly between state law and nonstate law, has been
de-scribed. Early research in classic legal pluralism saw normative orders
as parallel but autonomous."
○​ State law influences other normative orders through direct coercion, symbolic
power, and by shaping the context in which other forms of ordering operate.
■​ "Research in the 1980s emphasizes the way state law penetrates and
restructures other normative orders through symbols and through direct
coercion..."
○​ Non-state normative orders are not passive recipients of state law. They can resist,
circumvent, or even adopt and utilize the symbols and forms of state law for their
own purposes. Examples include the creation of "law of the asphalt" in Brazilian
favelas and the replication of state court symbols in Papua New Guinea village
courts.
■​ "...the way nonstate normative orders resist and circumvent penetration or
even capture and use the symbolic capital of state law."
○​ Fitzpatrick's concept of "integral plurality" argues that state law and other social
forms are integrally constituted by their interrelations. They both support and
oppose each other, leading to ongoing challenge and change.
■​ "Fitzpatrick's concept of 'integral plurality' focuses on the interaction
between normative orders, positing that state law is integrally constituted
in relation to a plurality of social forms..."
○​ Sugarman's concept of "facilitative law" highlights how state law can enable
private law-making, allowing individuals to create their own legal arrangements
and potentially subvert state policy.
■​ "Sugarman explores the plurality of law through his discussion of
facilitative law, law that functions not by imposing obligations but by
 providing individuals with facilities for realizing their wishes through
conferring legal powers on them..."
●​ Legal Pluralities and Local Knowledge:
○​ Geertz offers an interpretive view, understanding law as a cultural code and a
system of symbols for interpreting the world. This perspective emphasizes the
diversity of "legal sensibilities" across cultures.
○​ "Law is understood as a system of sym-bols, of meanings... "'law' here,
there, or anywhere, is part of a distinctive manner of imagining the real..."
○​ Different legal orders embody different ways of understanding reality, truth, and
justice. Geertz illustrates this by comparing legal concepts in Islamic, Balinese,
and Anglo-American contexts.
○​ Santos introduces the concept of "interlegality" as the phenomenological
counterpart of legal pluralism, describing the way different legal spaces are
superimposed, interpenetrated, and mixed in our minds and actions.
○​ "Interlegality is the phenomenological counterpart of legal pluralism and that is
why it is the second key concept of a postmodern conception of law."
○​ O'Connor suggests that law can be understood as a society's own theory about
social order and relationships.
○​ Foucault's work on power and discipline offers another lens for understanding
legal pluralism, highlighting how modern law operates through "disciplinary
technologies" that shape individuals and institutions.
●​ Implications and Future Directions for Research:
○​ A focus on legal pluralism challenges the assumption that state law is the sole or
primary form of legal ordering, directing attention to the interplay of multiple
normative orders.
■​ It necessitates a historical understanding of legal phenomena, recognizing
that legal pluralism evolves through the dynamic interactions between
legal systems over time.
○​ It encourages the examination of the cultural and ideological dimensions of law,
exploring how different groups conceive of order, social relationships, truth, and
justice.
○​ It broadens the scope of sociolegal research beyond the study of disputes to
include the analysis of ordering in non-dispute situations and the role of
facilitative law.
○​ It provides a framework for analyzing the dynamics of legal imposition and
resistance, as well as the interplay between dominant and subordinate groups.
○​ Merry notes that the concept may have limitations in analyzing change within a
single social field and in capturing the specific characteristics of particular local
contexts. It can sometimes prioritize systemic analysis over the nuances of local
practices.
 ●​ Conclusion:
○​ Merry's "Legal Pluralism" offers a comprehensive overview of a crucial concept
in sociolegal studies.
○​ By tracing its intellectual history and exploring its various dimensions, the article
demonstrates the pervasiveness of multiple legal orders and the complex,
dynamic relationships between them
○​ The move towards the "new legal pluralism" encourages scholars to look beyond
state law and examine the diverse forms of normative ordering that shape social
life, as well as the ways these orders interact, influence, and resist one another
○​ The article concludes by suggesting future research directions that build upon the
insights of legal pluralism while acknowledging its limitations.
○​ This briefing document provides a summary of the main points in Merry's article
and should serve as a useful overview for understanding the concept and
significance of legal pluralism in sociolegal thought.

Webberet al, Sally Engle Merry, Legal Pluralism, and the Radicalization of Comparative
Law(2002) 846-57

●​ Early Focus on Marginalized Groups

○​ Merry's initial research centered on the "legal relations of nonlegally trained
people—often members of the working class, marginalized or racialized groups.
○​ She explored the gap between their understanding of disputes and the formal legal
system.
●​ Merry embraced the concept of "new legal pluralism," moving beyond its initial focus on
colonial contexts to recognize legal pluralism as "a characteristic of virtually all
societies and all law.”
○​ This involved recognizing diverse sources of normativity beyond the state.
●​ Her engagement with this expanded view of legal pluralism was significantly shaped by
discussions with Canadian scholars Harry Arthurs (emphasizing plural sources of law in
labor law) and Rod Macdonald (exploring normativity outside the state).
●​ Merry became a valued participant in a growing community of Canadian scholars
grappling with Canada's legal diversity
○​ the coexistence of Civil and Common Law, the interaction with Indigenous legal
traditions, and the diversity within Indigenous legal traditions themselves.
●​ Merry directly influenced the development of two key Canadian legal education
initiatives:
○​ McGill University's Transsystemic Program (BCL/LLB/JD): Merry was a key
member of a research group leading up to the transformation of McGill's program,
which aimed to integrate the teaching of Civil and Common Law
 transsystemically (simultaneously in the same class) and make dual degrees
compulsory. The goal was to build comparative teaching into the program's core.
○​ University of Victoria's JD/JID Program: Merry served as an international
reviewer for this program, which sought to teach Common Law and Indigenous
legal orders "as even-handedly as possible." This program recognized the richness
and diversity of Indigenous legal traditions.
●​ The authors emphasize that these conversations were not one-sided
○​ Merry's engagement with Canadian scholars and these projects also impacted her
own research, particularly her work on pursuing gender equality cross-culturally
through international law.
●​ : The development of these teaching programs brought the fields of legal pluralism and
comparative law into close conjunction, disciplines that had previously operated largely
independently.
●​ Comparative law, traditionally state-centered, was forced to engage with "law that was
not the product of a state, perhaps even ‘stateless law’."
○​ This expanded the scope of comparative analysis to include religiously based or
customary legal orders and questioned the "implicit teleology" of the field, its
confidence in a linear progression towards an ideal legal ordering.
●​ Legal pluralism, originating in anthropology and sociology, had often taken an external
approach to law, neglecting the internal argumentative resources within non-state legal
orders
○​ The new teaching programs aimed to train students to work critically within these
orders, understanding their internal logic and contributing to their development.
●​ 3. Key Challenges and Merry's Responses:
○​ Challenge 1:Working across legal traditions raises concerns about the
potential compromise, displacement, or erosion of one's own tradition, as the
"grammar of their law furnishes the terms by which they have come to understand
their place within the world" and can be "constitutive of their social identity."
■​ The McGill debate over transsystemic teaching and the anxieties of
Indigenous students in law school illustrate these concerns.
■​ Merry's Approach: She rejected the notion of cultures as "radically
independent wholes" and saw legal change as involving "cultural
production and cultural appropriation," both potentially positive. She
cautioned against "reify[ing] indigenous law as an ancient or unchanging
system" and advocated for understanding the impact of colonialism on
contemporary Indigenous law. She sought ways to promote human rights
and gender equality cross-culturally in ways tailored to specific societies.
■​ Quote: "We should not ‘reify indigenous law as an ancient or unchanging
system,’ presenting it in a ‘static, ahistorical way,’ and that we take
 seriously aspects of today’s Indigenous law that are a product of
colonialism." (referring to Merry's 2011 evaluation)
○​ Challenge 2: This challenge involves navigating between centrally organized state
legal systems and nonstate legal orders with distributed authority and persistent
normative disagreement.
■​ Merry adopted a pragmatic definition of law as "a set of ideas and
practices for managing conflict and creating order but the more precise
definition depended on the particular goal of the inquiry."
■​ Engaging with Indigenous legal orders requires understanding their
structural features (kinship, modes of knowledge transmission,
decision-making forums, connection to land) and the "more allusive
character of legal reasoning and expression."
■​ Merry's Approach: She drew on linguistic analogies like "translation and
vernacularization" to understand interaction across legal traditions. She
cautioned against understanding Indigenous law solely through the lens of
the Common Law and emphasized the importance of respecting
Indigenous conceptual categories.
■​ Quote: "[T]here was a danger ‘that indigenous law will be understood
through the lens of the common law and expected to manifest similar
systems of rules, institutions, and procedures.’ It was important that the
conceptual categories, through which Indigenous law was approached, not
be those of the Common Law alone, but be faithful to their own."
(referring to Merry's 2011 commentary)
■​ The authors note that this expanded framework also benefits the
understanding of state law and international law.
○​ Challenge 3: The Problem of Power:This challenge involves accounting for power
imbalances and redressing them without losing the aspirational dimension of legal
reasoning.
■​ It highlights the tension between sociological (external) and normative
(internal) explanations of law, particularly in the context of nonstate law
where discursive processes can obscure power dynamics.
■​ Merry's Approach: Her work was a model of self-reflective practice,
constantly considering the role of power while still upholding the validity
of normative aspirations and striving for "equal and nondominating
interaction."
■​ Quote: "We know that power conditions the operation of legal institutions
in all societies but we nevertheless hope, through our practice, to advance
ideas of justice that transcend the effects of power..."
●​ 4. Merry's Conception of Legal Pluralism and Comparative Law:
 ○​ Merry viewed legal pluralism not as a theory but as "a description of what
law is like." This implies that plurality is an inherent aspect of the human
condition.
○​ She believed that theorizations of legal pluralism should be "modest, partial, open
to trial and error and to continual revision in the light of experience."
○​ In her later work, Merry embraced New Legal Realism, a framework calling for
legal analyses that integrate empirical and normative modes, incorporate
sociological insights, work transnationally, and maintain normative aspirations.
○​ Merry continually stressed the need to hone our critical capacity and our agency
as legal actors, paying full attention to the world's plurality.
○​ The authors conclude that "at its radical best, comparative law ought to be"
aligned with Merry's vision, training students to be active custodians and
practitioners in a plural legal world

Law as Administrative Infrastructures | March 26th, March 28th 2025

Mawani, Postcolonial Legal Studies (2021) 47-52

●​ Edward Said's book Orientalism challenges traditional views of colonialism, arguing it

was not just a political or economic project, but also a cultural one.
○​ Colonialism and imperialism were cultural formations informed by various types
of knowledge.
○​ The “Orient” or “East” was not a real place but a European construct.
○​ Distinctions between East/West and Orient/Occident were shaped by European
imagination.
○​ The creation of the Orient as inferior justified the subjugation of lands and
peoples.
○​ European notions of superiority were reinforced through these cultural constructs.
○​ Colonialism affected both the colonies and European centers of power.
●​ Although Said was not the first to critique colonialism, he is seen as the father of
postcolonial studies.
○​ Previous thinkers like Amílcar Cabral and Frantz Fanon contributed to
decolonization thought.
○​ Said’s 1978 Orientalism marks a shift from Marxism to post-structuralism,
influenced by Michel Foucault.
○​ Unlike Fanon, who focused on colonial struggle, Said emphasized cultural and
knowledge-based violence.
 ○​ Said didn’t use the term "postcolonial"; it was coined later to encompass his and
others' work.
○​ "Postcolonial" signals a shift in how we conceptualize colonialism and
imperialism, beyond a historical moment
●​ Said’s ideas have been widely influential, though critiqued in several areas.
○​ Critics argue Said’s focus on the European imagination neglects the voices and
resistance of colonial subjects.
○​ Colonial subjects actively resisted domination, with examples like the Haitian
Revolution and the Indian Rebellion of 1857.
○​ In Culture and Imperialism (1993), Said addresses this critique, emphasizing
resistance but focusing on culture and knowledge as colonial power sites.
●​ Postcolonial studies in law emerged gradually, influenced by Said’s work but slower
to take hold.
○​ Early legal scholars focused on law and colonialism, but postcolonialism’s
challenges to law’s foundations were disruptive.
○​ Postcolonial legal studies examine both the material and representational aspects
of colonialism and imperialism.
○​ Legal regimes were used to enforce racial hierarchies and undermine indigenous
legal systems.
○​ Said’s work has influenced the study of law’s relationship with its others and its
own self-perception.
●​ Postcolonial legal studies have become a diverse field, extending Said’s insights into law.
○​ Critics of Orientalism accused Said of overlooking material colonial effects, but
scholars now emphasize how law and culture are interconnected.
○​ Legal institutions also produced racial and cultural meanings that influenced who
had legal authority and sovereignty.
○​ Laws were enacted to control colonial subjects and erase indigenous communities
and practices.
●​ Said’s death in 2004 meant he did not witness the intensification of orientalism and
Islamophobia post-9/11.
○​ Orientalism’s role in colonialism and imperialism continues to shape global
geopolitics, legalities, and imaginaries today
●​ In Culture and Imperialism, Said links colonialism and imperialism to territorial and legal
control.
○​ Colonialism and imperialism were rooted in land control, with different colonies
and territories treated unequally.
●​ White settler colonies like Canada, Australia, and New Zealand were afforded more
autonomy than colonies like India.
○​ The dependency of colonies was maintained by orientalist writings that justified
their subjugation.
 ●​ Early postcolonial legal studies focused on law, identity, and territory.
○​ Legal scholars have applied Said’s framework to question how colonial powers
used law to distinguish between "civilized" and "lawless" peoples.
○​ The British Empire presented itself as a promoter of law, but its legal system was
used to justify violence and colonial interventions.=
○​ The U.S. similarly used claims of democracy and law to justify occupations like
in Iraq and Afghanistan.
●​ British legal regimes, like the Indian Penal Code (IPC), were applied across the empire,
including in settler colonies.
○​ Criminal laws were imposed on indigenous peoples and colonial subjects,
undermining their own legal systems.
○​ In Canada and Australia, British criminal laws were used to diminish the political
and territorial sovereignty of indigenous peoples.

Merry, Indicators (2021) 162-165

●​ Numbers are commonly used to describe economic activities and are seen as authoritative
and reliable, shaping policy decisions.
○​ Examples include GDP, unemployment rate, and credit ratings.
○​ These numbers are assumed to be objective measures of economic activity.
○​ Economic development is increasingly measured by numerical goals like the
Sustainable Development Goals.
●​ Quantification influences many aspects of life, with an expanding role in shaping
decisions
○​ Indicators are statistical measures combined to form a single number or rank for
complex ideas (e.g., rule of law, access to justice)
○​ These indicators are used to make decisions about funding, education, and
governance.
○​ Examples include Human Development Index, Consumer Price Index, and World
Governance Indicators.
●​ The process of counting and categorizing reveals choices about what is included or
excluded in measurement.
○​ Categories like race, gender, and disability can influence what is counted.
○​ Historical examples include the exclusion of unpaid labor by women.
○​ New areas being quantified include happiness, daily steps, and sleep.
●​ Indicators are valuable for raising awareness and spurring social movements (e.g.,
violence against women, trafficking).
○​ However, numbers often distort the picture due to limited, inaccurate, or
missing data.
○​ Data challenges include poor quality in developing countries and difficulty in
comparing diverse entities.
 ○​ For complex issues like gender-based violence, quantification simplifies the issue
but misses important context (e.g., marriage, kinship, and economic factors).
●​ Quantification has knowledge and governance effects, influencing policy decisions and
shaping worldviews.
○​ Despite their importance, the processes behind measurements are often
unrecognized and untheorized.
○​ Quantification can reveal patterns of inequality, but it may also obscure them.
●​ Categories and standards used in quantification are often determined by experts,
primarily from the global North.
○​ These standards influence policy decisions and the global ranking of countries,
schools, and institutions
○​ There is a power imbalance in who decides what gets measured and how it is
categorized.
●​ Issues excluded from quantification include aspects like social climate in schools or
contributions of natural resources to GDP.
○​ Quantification often requires shared standards, ignoring local context and
diversity in governance.
●​ The rise of quantification aligns with neoliberal views of society, where wealthy private
actors shape indexes.
○​ Examples include the rule-of-law index and educational rankings, which reflect a
Northern perspective.
●​ The cost of collecting data for governance raises questions about resource allocation.
○​ Poor countries face more challenges, but even in wealthy countries, data
collection absorbs resources that could be used for other reforms.
●​ Quantification may foster an economistic, market-driven view of society.
○​ The reliance on indicators and quantification poses questions about the validity of
knowledge produced and its consequences for governance.
○​ It is crucial to interrogate how numbers are constructed, what is measured, and
what is excluded.

Foucault, Discipline & Punish 3-7, 200-202, 213-228

●​ Leon Faucher drew up his roles for the house of young prisoner sin paris
○​ They do not punish the ame crimes or the same type of delinquent
○​ But they each define a certain penal style
●​ The Invisibility is a guarantee of order
○​ If the inmates are convicts, there is no danger of a plot, an attempt at collective
escape, the planning of new crimes for the future, bad reciprocal influences
●​ The crows, a compact mass, a locus of multiple exchanges, individuality merging other, a
collective effect, si abolished and replaced by a collection of separated individualities
 ○​ From the point of view of the guardian, it is replaced by a multiplicity that can be
numbered and supervised
○​ From the point of view of the inmates, sequestered and observed solitude
●​ The major effect of the panopticon ⇒ to induce in teh inmate a state of conscious and
permanent visibility that assured the automatic functioning of power
●​ Power should be visible and unverifiable
○​ Visible –==> inmates will also see the outline of the central tower for which they
are being watch
○​ Unverifiable ⇒ the inmate must never know whether he is being looked at any
one moment, but he must be sure that he may always be so
●​

Sullivan & Van den Meerssche, An Infrastructural Brussels Effect (2024) 1-11

●​ The article examines how legal regulations shape the UK's digital border system.
●​ Despite Brexit, UK must comply with EU legal safeguards, particularly concerning
Passenger Name Records (PNR) data.
●​ EU law shapes UK digital border design through regulatory influence.
●​ Norm Diffusion vs. Sociotechnical Shifts:
○​ Legal norms are embedded in technological systems.
○​ Once embedded, these norms are transformed by machine learning and
algorithmic decision-making
●​ EU law (via the EU-UK Trade and Cooperation Agreement) limits the retention and
processing of PNR data
○​ The UK is subject to the stringent privacy protection rules from CJEU’s Opinion
1/15.
●​ Post-9/11 security policies prioritize surveillance and risk assessment.
○​ CJEU prioritizes data protection and individual privacy rights.
●​ Algorithmic systems like Cerberus face resistance from legal, administrative, and
technical challenges.
●​ Post-Brexit, the UK is held to higher data protection standards by the EU.
○​ PNR data sharing continues between the EU and US under a 2012 agreement,
with rising tensions over renewal.
○​ 2021 EU evaluation found the agreement non-compliant with CJEU Opinion 1/15
due to:
■​ Retention of PNR data.
■​ Processing of sensitive data.
■​ Lack of prior independent review.
■​ Issues with domestic sharing, onward transfers, and oversight
independence.
●​ The US refuses additional PNR data restrictions, creating geopolitical discord.
●​ The EU’s legal standards on data retention and processing were integrated into the UK
through the TCA.
●​ Despite Brexit, the UK remains part of the European "privacy family" due to:
○​ Adherence to the European Convention on Human Rights (ECHR).
○​ Jurisdiction of the European Court of Human Rights (ECtHR).
●​ Adequacy decisions (under GDPR and LED) allow data transfers but have a four-year
sunset clause with ongoing monitoring
●​ The UK developed Cerberus, a digital infrastructure project for PNR data analysis, to
comply with TCA rules.
○​ Cerberus uses predictive analytics and machine learning to identify future security
risks.
○​ Human review is required before adverse measures are taken against individuals
flagged by automated processing.
○​ The system operationalizes legal norms into technical code, enhancing the UK’s
border security capabilities.
●​ The EU’s legal norms are translated into technical infrastructure, creating a new
regulatory order.
○​ Legal standards are embedded into the UK's digital border governance practices.
○​ The EU’s extraterritorial reach influences UK security infrastructure, despite
Brexit
●​ Sheds light on the UK’s novel post-Brexit PNR data-sharing issues.
○​ Demonstrates the translation of legal norms into digital infrastructures
○​ Highlights the role of algorithmic governance in reshaping legal standards.