Aspiration toward Perfection in legality

  • Corresponding 8 routes to legal excellence. Fulfilment of all 8 is utopia. But this Utopia not actually a useful target for guiding impulse toward legality, goal of perfection is more complex. But suggest 8 standards by which excellence in legality may be tested. – Workings from Dentist Calgary
  • Now clear, that inner morality of law presents all aspects of that scale which starts with MOD and ascends to MOA.
  • Applying analysis of first chapter to this subject, must consider distinctive qualities of inner morality of law.
    • Basic morality of social life, duties towards others, usually only require negative “do not kill” type commands.
    • But inner morality requires more, also needs ‘make law known’ ‘make it coherent’ etc. To meet this, energies must be directed towards specific kinds of achievements not merely warned away from harmful acts.
    • Because of affirmative quality of its demands, IM lends badly to realization through duties, whether moral or legal, why? Because now matter how desirable direction of human effort may be or appear, if we assert there is a duty to pursue it, we shall confront the responsibility of defining at what point that duty has been violated.  Thus, duty on legislator to make laws clear is an exhortation unless we define degree of clarity he must attain to discharge duty.  Adds to up saying: Morality of law condemned to remain largely a morality of aspiration and not duty. Its primary appeal must be to a sense of trusteeship and to pride of the craftsman.
    • Importance exception: relates to desideratum of making laws known. This demand lends itself to formalisation.
    • You would think that non-retroactivity also easily formalised, but this seeming obvious demand turns out to be one of most difficult problems of whole internal morality of law.

Civil Liability:

E/ers can be personally liable to e/es for accidents at work on a number of bases:

i. negligence

ii. breach of statutory duty (eg Regulations made under HSWA

1974 or Occupiers’ Liability Act 1957)

iii. breach of contract (eg breach of the implied term to provide

a safe premises, plant and equipment and a safe system of

work)

Criminal Liability:

This can arise under the following:

i. HSWA 1974 – eg both the company and individual directors can be

prosecuted for breaches of the Act

ii. General criminal law, if death results, in a possible prosecution for

manslaughter

iii. S37 HSWA – prosecute officer if breach occurred with their consent

or due to neglect

New Legislation – Notary Public London solicitors

In June 2000, the Department of the Environment, Transport and the Regions (DETR) issue

proposals for a UK wide strategy on health and safety in the workplace with a view to

establishing a common standard for all businesses on health and safety issues.

In July 2001 the Health and Safety Commission (HSC) published new guidance

recommending health and safety responsibilities for company directors

Corporate Manslaughter

There are also government proposals to reform the law in England and Wales on involuntary

manslaughter and introducing a new offence of corporate killing so that management failings

could lead to prosecution where there is conduct ‘far below what can reasonably be expected

which causes death.’

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The company would be liable regardless of whether:

i. the immediate cause was an e/ee or an independent contractor

ii. there was a responsible individual within the company

Health and Safety at Work

EXAM TIP – discuss both the Act and the Regulations

Exam Checklist

1. s2 HSWA “as far as reasonably practicable”

look at what the e/er has done including size and resources of the company then look at the degree of risk and decide whether e/er should have done eliminated/reduced the risk on the basis of the

cost, time, disruption to workforce, etc Framework of legislation and regulations:

 Health and Safety at Work Act 1974 (HSWA) – it’s actually criminal legislation but you use it to show civil liability

– This provides the framework for modern health and safety legislation

– the Act specifically recognizes the need to progressively replace pre-1974 legislation by a system of Regulations and Approved

Codes of Practice (ACOPs) made under it.

The result will be that eventually, pre-1974 legislation will be repealed and those provisions which have modern application will exist as Regulations and ACOPs made under HSWA 1974

 – aim to secure the health, safety and welfare of people at work, inc employers, employees and self employed. Also protects people other than those at work against

risks to their health and safety arising out of work activities, i.e. visitors, contractors, even trespassers, it protects the public in general as well as employees.

 S.2 – ‘it shall be the duty of every employer to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees’.

Such things as system of work, use, handling, storage and transport of articles and substances, info, instruction, training and supervision, place of work, plant; system of

work; use, handling, storage and transport of articles and substances; information, instruction, training and supervision; place of work; and working environment

 ‘So far as is reasonably practicable’ means the degree of risk should be balanced against the time, trouble, cost and difficulty of taking measures to avoid the risk and is therefore less than absolute (Hawes v Railway Executive (1952) RB 199)

 Burden of proof is on the accused to prove reasonably practicable.

 S.2(3) requires every employer who carries on an undertaking employing 5 or more employees to prepare a written statement of health and safety policy.

 S.3 – obliges employers and self employed persons “so far as is reasonably practicable, to conduct their undertakings in such a way as to ensure that non- employees affected by work activities are not exposed to risks to their health and safety.” This covers public at large, visitors, contractors, even trespassers.

Non-employees range from outside contractors (R v Associated Octel Co Ltd) to visitors or even trespassers. Similar to the case of  abogados de accidentes de carro file.

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Self employed people also have a duty to ensure that they do not risk their own health and safety by work activities, but the circs are rare in which a person will be prosecuted for being careless as regards his own safety.

 S.4 – anyone who has control on a non-domestic premises must, as far as is

reasonably practicable, take steps to ensure that there are no risks to the health and safety of people at work there who are not their employees. Aim is to place duties

on whoever has the power to redress the sources of hazard, i.e. a building owner or maintenance contractor.

 S.7 – all employees must take reasonable care for health and safety of themselves

and other persons and where duties are imposed on employees to co-operate with them to enable the duty or requirement to be carried out.

 S.8 – all people are required not to intentionally interfere with or misuse anything

which has been provided by law in the interests of health and safety, e.g. fire escapes, guards on machinery etc.

PHILOSOPHERS OF COURTESY

  • Institutional Identity
    • Remember, in Ch1 Dwork says that classical theories of law unhelpful because of semantic sting. So what philosophies helpful when people take interpretive attitude when describing social tradition.  Suppose guy in community is asked to describe conceptual account of courtesy — he must join the practices he describes. He cannot say that taking off ones hat to lady is by def a case of courtesy, like how Moby Dick is book by def.  — “He is like a man at the North Pole told to go any way but south.”
    • He complains, so given new task “our practices of courtesy different to other generations, but we have same sort of practice. Must be some feature we all share. Please tell us what”.
    • He can answer this, but not how they want. His answer will be historical. Like rope with strands none of which run all along the rope. — But which changes great enough to cut thread of continuity? That is interpretive question. There is NO feature that any stage or instance of the practice just must have to be courtesy, and looking for it just another e.g. Of semantic sting.
  • Concept and Conception
    • Can the philosopher provide an account more conceptual and less substantive? Perhaps, the structure is tree like. All agree respect part of courtesy, but not all agree what respect is.
    • So this common trunk serves as base of very meaning of courtesy and for discussion: respect provides concept of courtesy and that competing positions about what respect really require are conceptions of that concept (the contrast of concept and conception is levels of abstraction)
    • But concept/concpetion distinction NOT same as word and its extension distinction. So in one way his analysis, if successful, must also be uncontroversial, because him claim that respect provides concept of courtesy fails unless people are by and large agreed that courtesy is a matter of respect. Similar to the abogados de accidentes de autobus.
    • BUT, his claim is interpretive, NOT semantic! Not claim about linguistic ground rules everyone must follow. Nor is his claim timeless. Can also be challenged, but if, then at deeper disagreement, not superficially.
  • Paradigms
    • One more task philosopher might perform for his constituents. At each stage of historical development, will be certain concrete requirements of courtesy that strike all as paradigms — requirements of courtesy. They will be treated as concrete e.g. Any plausible interpretation must fit.
    • If you reject paradigm seen to be making big mistake. “Paradigms anchor interpretations, but not paradigm is secure from challenge by new interpretation that accounts for other paradigms better and leaves that one isolated as mistake.”  Yesterday’s paradimg could become today’s chauvinism

The ‘Internal Aspect’ of Law

Another important way in which both Kelsen and Hart tried to improve upon Austin’s legal positivism was to give a better account of law’s “internal aspect”. Austin presented those who were subject to the law as being passive in the face of an external force: law was the command of a Sovereign backed up by sanctions in the face of which the population had a habit of obedience. In Hart’s view, this account of law only explained how law looked on the surface, and from the ‘outside’ and was akin to an account of cars stopping at traffic lights such as a Martian sociologist might offer. A Martian sociologist could state that cars have a habit of stopping in the face of traffic lights turning red. This way of looking at the situation, however, fails to tell us how things appear ‘from the inside’ to those who use legal rules to guide their conduct in their daily lives. Cars do not merely happen to have a habit of stopping at red lights. Rather, those people in the cars understand that there is a rule requiring them to stop which they are using to guide their conduct, and which they take as a reason for stopping when the traffic light turns red. The point which Hart wanted to make was that legal theorists will miss some of the most important things about the nature of law unless they understand law as it is understood by those who are subject to it and use it as a guide to conduct. Hart dubbed this insiders perspective the internal aspect of law, and insisted that law had to be understood taking into account this internal point of view if it was to be understood adequately.

Hart and Kelsen gave different accounts of this internal aspect of law, but both wanted to stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal positivism. According to Hart and Kelsen, then, legal theorists must understand law from the internal point of view, but that point of view must not be so internal as to entail a moral endorsement of the law. For Hartian and Kelsenian legal theorists, having an internal attitude toward the law, then, does not entail accepting the law as a morally good thing which creates moral reasons to do as it says because it says so.

General Reading

Primary texts 

  •  Hart The Concept of Law, esp. Preface and Chs. 1–7 (Note: See 2nd Ed. with Postscript)
  • 3 main questions prompt the discussion of what is law: (1) How do laws differ from orders backed by threats? (2) What is the link between morality and the law i.e. is an unjust law still a law? And (3) What is a “rule” (e.g. as opposed to merely convergent habitual behaviour) and to what extent is law “an affair of rules”?
  • Austin defined law by the “command model” i.e. laws are just orders backed by threats or habit, issued by a person/institution that is generally obeyed. When defining legal control, orders from officials cannot be the primary way the law functions i.e. the law doesn’t function primarily by officials going around and telling everyone of every single act that they are required to do- no state would have the resources to do this. Where officials do communicate the rules to individuals it is the exception. Normally laws are made by general forms of directions (e.g. statutes). Therefore legal control is primarily control by directions that apply to general classes of people and prescribe general types of behaviour. The party issuing the order must be habitually obeyed by the population and there has to be a belief that the sanctions for non-compliance will be effected.
  • Hart lists several objections to Austin’s point of view: These are categorised into the “content”, “mode of origin”, and “range of application” of laws.
    • Content: While criminal law and tort law do bear an analogy to the command model, many areas of law do not. Rules that confer legal powers on people e.g. by allowing them to contract and giving effect to their contracts, or the power to make a will, is not demanding any particular type of behaviour and there is no sanction involved. Some try to get around this objection by associating power-conferring rules with coercive rules by suggesting that nullity (e.g. from failure to comply with the formalities of the Wills Act) is the sanction resulting from non compliance with the rule. Hart denies this, saying that it makes no sense to speak of nullity as a sanction since power-conferring rules are not trying to suppress a type of behaviour (as criminal laws do), but instead are setting limits to the power conferred. E.g. the rule that only a majority vote in parliament will allow a bill to pass cannot be regarded as punishing failure to obtain a majority. Another attempt to counter the “content” argument (used by Kelsen) is to say that laws are really just directions to officials to impose a sanction if an act is performed i.e. the law doesn’t prohibit murder, but merely requires judges to imprison those who murder i.e. murder is an “if” clause in a direction. This would mean that nullity simply means that the “if” clause is incomplete, and thus the sanctions against executors who breach their duties cannot be punished (since there is no will to breach). Thus power-conferring laws are mere fragments of the “real” laws i.e. orders backed by threats. Hart points out that if a law without sanctions is shown to be possible, then this argument disappears. He also says that laws which operate as orders backed by threats ARE fundamentally different from other types of laws, since only the former are designed to suppress activity viewed as negative e.g. there is a difference between a fine meant to deter people from driving above the speed limit, and a tax whose purpose is simply to collect revenue.
    • The “range of application argument” against Austin’s model: An order is a desire that someone else should do something. Therefore, if many laws apply also to the person creating the rule, then it cannot be an order.
    • The modes of origin argument: The idea of an order is only really compatible with laws from certain sources, such as statutes. It does not account for rules which have become law by virtue of being custom. Even statutes ordering that custom form no part of the law will not be effective necessarily in places where the courts have discretion. Others argue that customs which become law are recognised by the officials and, since no action is taken, a tacit order to continue can be inferred. Hart counters this by saying (1) such an inference is not always necessarily true, and (2) it is hard to ascribe knowledge, consideration, approval etc to the sovereign in modern states.
    • NB another argument is that Austin’s system cannot account for countries with full judicial review. Firstly under Austin’s system, there is no reason why limitations would exist on the types of orders that an issuer of orders (the sovereign) could make, unless he placed them on himself or did not have the coercive power to carry out the sanctions. This fails to take account of systems where the courts have assumed the power of full judicial review i.e. to strike down the sovereign’s orders, since it is (1) not a power granted by the sovereign, (2) a limitation that is neither requested by the issuer of orders nor created through want of force.
    • The idea of habitual obedience fails to explain the continuity of legal systems as one lawgiver is replaced by another- people (a) have no habit of obeying the new lawgiver and (b) on what basis does the new lawgiver have the right to take his predecessor’s place? E.g. When one king, whom the population is in the habit of obeying, dies, then his successor can still promulgate laws etc despite the people having no habit of obeying him personally. Perhaps Austin’s point here is more that people have a habit of obeying an institution e.g. “parliament” or “the monarchy” rather than the particular actors within it.On the “right” point, Austin’s view is basically “might is right”, so questioning the new lawgiver’s title is irrelevant.
    • There is a difference between a mere “habit” and a “social rule”: (1) Habit is merely convergence of behaviour but does not necessarily seek to repress any other knd of behaviour i.e. just because someone breaks a group habit does not mean they are open to censure. By contrast deviations from rules are seen as faults meriting punishment; (2) Rules have an internal aspect, demonstrated by criticisms of people who don’t conform. Habits are unthinking and therefore don’t have this.

Problem with the idea of the “sovereign,” obedience to whom comes from his orders backed by threats: Why do statutes from previous reigns still operate in law under the new sovereign? Not habit of obedience to new ruler since he did not enact the rule. NB Hart moots the answer that authority rests with the institution and therefore it is the institution that is regarded as sovereign, but still calls it “puzzling”. Why? Seems a valid enough answer. One answer (Hobbes) was that the new sovereign tacitly expresses his will for the law to remain by not changing it. Hart responds that such an inference is wrong in fact (refraining to change the law does not equal an order that it should remain.

Introduction to Legal Positivism

Legal positivism is a doctrine about the nature of law according to which (a) all laws are laid down or posited by a certain person or procedure, and (b) something counts as a valid law of a certain system in virtue of being laid down by a certain someone or according to a certain procedure. In other words, the legal validity of a rule or decision depends on its sources (e.g. where it has come from, and how, and when), rather than its merits (e.g. whether or not it is a good rule or decision). This way of understanding law was made famous during the nineteenth century by the ‘command’ theories of law espoused by Jeremy Bentham and John Austin. According to these theories, something is law if it has been commanded by a Sovereign, and is backed up by the threat of a sanction in case of non–compliance.

Command theories help us to understand the posited nature of law, allow us to identify and understand what law is before considering whether it is morally good or bad, and foreground the role which coercion plays in the law, and so furnishes us with a legal theory which attempts to tell citizens subject to the law exactly the sort of thing they are dealing with.

Unfortunately, however, the command theory makes it difficult to understand how legal systems work as a system. Each law is a law because it is posited by an act of the Sovereign, and so each law appears to be self–contained and self–sufficient, unified only in that all laws have in fact been commanded by the present Sovereign in the way explained by the command theory. This, however, fails to explain the way in which legal systems seem to have a life of their own, independently of the lives of the Sovereigns, or legislatures, which posit their laws. Legal systems remain in force, and are capable of altering the laws which comprise them, and of creating new laws, across time, and they retain these characteristics even when one Sovereign dies or one legislature dissolves and a new one ascends to the throne or is reconvened. Twentieth century legal theorists H.L.A. Hart and Hans Kelsen both criticised these weaknesses in Austin’s command theory of law, and, in their own separate ways, set out to explain what it is that unifies laws into legal systems, and which allows legal systems to regulate their own creation: to determine which laws belong to the system, alter existing laws, and make new ones, according to their own internal procedures for so doing.

How can legal systems pull off this amazing trick of regulating their own composition and creation?

https://plato.stanford.edu/entries/legal-positivism/