Batool Alsamadi

Phil of Law – Dr. Bohman

March 6, 2007 [due]

Essay Set I

I.
The acts committed by the Grudge Informers were certainly unjust and inhumane, in that
they acted out of desire, with murderous intent, by using the court and laws as instruments for
expedient means as ways to fulfill their illicit motives. I find that the following considerations
given by the First Deputy and Second Deputy provide the most reasonable argument(s) for the
resolution of the Purple Shirts dispute. First, I will go through the First Deputy and Second
Deputy to show why their arguments are valid for a resolution; I will then go through the other
Deputies’ arguments to show how their suggestions yield as legally invalid.
The First Deputy suggested the actions of the Grudge Informers to have been “in the law
of the land” at the time they were committed. Further, the First Deputy points out that all the
actions the Grudge Informers reported were considered unlawful according to the rules of the
government at the time. I give credit to the First Deputy’s reasoning by expanding on the
opposition of Dworkin’s take on positivism. It would be unfair to deprive a defendant on the
terms of laws that were not given reasonable notice of liability.
The Second Deputy is in agreement with myself and the First Deputy, except he arrived
at his conclusion from the point that a legal system is about laws that are actually known about, or
can be known about, by those subject to them – and hence, a legal system not known to the
Purple Shirts. I want my government to have consistency in due process and fundamental
fairness, both which require reasonable notice of which behaviors give rise to liability. I further
reflect on this by Fuller’s criticism of Positivism: his Eight Principles of Internal Morality of law.
(P2) states that rules must be publicly promulgated. According to Fuller, if my government fails
to adhere to any one of his Eight Principles, I would not be governing a legal system – as seen in
the Purple Shirts. In spite of Hart’s criticism on Fuller’s Eight Principles, Hart overlooks the
important fact I am stressing about these principles: they are principles that double as moral
ideals of fairness. The Grudge Informers derailed on these principles, which is a route we must
avoid.
It would be necessary to discriminate among the cases, as the Third Deputy suggested, if
it were in the case of a genocide. The acts of the Grudge Informers, however, fall short to the
international legal definition of genocide. For example, paralleled to the Purple Shirt regime,
similarly, the Nazis were a regime that did a (larger) destruction to humanity, whom once ruled
Germany as well. The Nazis were abiding by the laws that governed their land at the time,
however, due to the intensity of their acts (strongly defining genocide) they were consequently
tried and punished for their actions once the Nazi regime ended. Like the Third Deputy
suggested, in the case of the Nazis, each case was inventoried, and fully examined. Another
example of this is Suddam Hussein’s regime in Iraq. Therefore, the Third Deputy’s suggestion of
“discriminating” and going through each “clear case” is not ideal in the case of the Grudge
Informers because their actions fall short to the international legal definition of genocide. Even
in the case of genocides, according to Dworkin, it would be only appropriate to govern by the
principles drawn from existing laws rather than creating a new law and trying the defendant for it.
The Fourth Deputy’s argument of enacting a statue yields invalid as well. In his
argument, he is hinting towards Discretion seen in positivism. First of all, we already established
the unfairness involved when creating a new law that did not exist during the time of the Grudge
Informer’s actions. Given this, at the very least, even if we try to apply existing laws in the
course of Discretion, there will be more than one available outcome that adheres to that existing
law we’ve applied it to; therefore it wouldn’t be possible to even apply an existing law and render
a substantive decision without creating a new law. Secondly, the Discretion thesis is inconsistent
with ordinary legal practice. Even in hard cases, lawyers wouldn’t ask the judge to legislate in
the exercise of discretion. Instead, a lawyer would cite cases that are favorable to his/her’s
client’s favor. The suggestion of the Fourth Deputy adheres to Dworkin’s discretion thesis –
which is a strong discretion that lawmaking authorities in legal systems like the U.S. or my own
governing would reject. The Fourth Deputy is suggesting that we have discretion to decide this
case (which is what amounts to an act of legislation) – but this would not work, because my
government is bound by legal standards.
The Fifth Deputy’s route is inevitably the same as the First Deputy and Second Deputy,
because just like them, he is suggesting not to punish the Grudge Informers. However, his
reasoning is invalid because of the way he arrived at this conclusion. The Fifth Deputy is
ultimately suggesting that the government should stay out of this and let the problems solve
themselves, even if “few innocent heads will be broken”. My governing has a purpose, and that
purpose is certainly not apathy. If the problems do indeed solve themselves in ways that result in
destruction to human lives under my governing, it is my duty (citing to Natural Law theory) to
make sure that human lives are preserved. Expanding on this premise, my duty is to treat
everyone just and to contribute to social life, because this is now under my governing.
 II.
Hart’s theory of a rule-based conception of law is found in the union of Primary and
Secondary Rules. Primary Rules are concerned with the actions that individuals must or must not
do; Secondary Rules are rules about rules. Dworkin rejects Hart’s claim because Hart’s
conception of laws are rule-based, and laws are principles with a larger dimension of weight than
rules. Dworkin’s rejection of Hart’s rule-based conception of law yields valid because his
argument proved applicable in the United State’s legal system. I will show that this is the case by
first showing the shortcoming’s of Hart’s rule-based conception of law, and what they can imply
(for the bad); then I will cite a case from the United State’s legal system that employed Dworkin’s
theory of principles.
If we adhere to Hart’s rule-based conception of law found in the union of Primary and
Secondary rules, courts would not be able to judge properly in the situation of hard cases when
there is no law or statue that addresses the case properly. In Hart’s theory, there are three kinds of
Secondary Rules, one being the “Rule of Change”; implying that it is alright for a society to add,
remove, and modify valid rules. As explained in the grudge informer, discretion is a route that
does not yield due process, fairness, or legal validity.
Insofar, as Dworkin recommends, we use the existing laws to cite principles. This is
because rules are based on principles. Having a rule-based conception of law would not allow
judges to decide based on principles, which is crucial in deciding hard cases. If we were to use
Hart’s union of Primary and Secondary rules, it would not work in hard cases because rules only
necessitate – whereas principles suggest a particular outcome. Principles have a heavier weight
of dimension because principles are part of the law.
Dworkin cites the case of Riggs vs. Palmer to prove his point of how judges indeed use
principles when deciding in hard cases. There was no statue or law at the time when the case was
decided which expressly prohibited a murderer from being allowed access to the will. Even
though, the court knew it would be wrong to award the defendant the will. They came across this
conclusion by citing the principle that states it would be wrong to allow the defendant to profit
from a wrong. The court came across this principle by examining the statue of wills, and then
justifying a new interpretation of that statue.