Intro Legal Quiz 3: Legal Consciousness

1902-1978. The "Inner Morality" of Law. Key Assumptions: Law is "the enterprise of subjecting human conduct to the governance of rules". Law guides human behavior toward some larger purpose, like justice (higher order/morality). Lawmaking is moral when its procedures lead to this purpose.

Fuller agrees morality needs to play a role - but different from natural law theorist. Talks about procedures - lke Hart. Also looks at what people think about and see as law - Fuller believes people must feel the law is legitimate. Hart akes no stance on content of procedures whereas Fuller says those procedures must have morality. Hart believes all primary and seocndary rules created equal - Fuller does not agree - for fuller if legal system's creation does not follow inner morality, is not legal system and law is not law and you must not obey

Until 1819 pigs a common occurrence - were dangerous and served as food for poor and street cleaners. poor liked the pigs, but upper classes were put off by the pigs. 1819: People v. Harriet, 1850: Pigs a rare occurrence on NYC streets after cholera outbreak of 1849, 1984: Muppets take Manhattan (lol)

Critiques legal positivism - law is not a unitary thing - people have varying views of law depending on social status. it is an area of conflict. By having different opinions people are staking their claims. Hartog asks were pigs allowed in NYC? and answers yes and no at the same time

1. Common council - popularly elected (make laws about pounds for pigs, rings in pigs noses as if there is a right to own pigs - are they regulating pig ownership?)
2. Mayor - elected by state - head of local court which looks at whether or not something counts as a nuisance - dcide on Harriet v. People case and decide yes pigs as a nuisance

Positivist response: Not after people v. Harriet
Legal Consciousness Response: It depends on who you ask

1. they attack children
2. boys keep trying to ride wild pigs
3. women have to view them copulating in public
4. hogs defacate on people
Also makes jurisdictional argument that the court is the right place to determine nuisance

Also makes jurisdictional argument - court not place to decide if nuisance - that is job for common council. does not touch idea of whether pigs are a nuisance

Harriet fined $1 pigs declared nuisance but stay on the street until cholera epidemic 1849

H.L.A Hart: secondary rules in society spelled out court's right to adjudicate laws prohibiting nuisances
Austin: Mayor (as sovereign) said, in his charge to the jury, what the rules were; jury expressed (or carried out) that vision of the rules in declaring pigs a nuisance

1. pigs remained in NYC streets until 1850
2. Laws were passed by the common council after 1819 and cases were decided by courts that assumed a right to keep pigs on streets in many areas and circumstances
3. Pig keepers who kept their pigs on the streets didn't see themselves as breaking the law

1. There are often different conceptions about what the law is (la can only be unified if EVERYONE has same view of law - positivism only works if we all have same conception)
2. there are sometimes different institutional authorities sending opposing signals about what the law is
3. The law is "an arena of social conflict" within which a number of alternative social visions contend
-In Hartog's world stating your claim to what you think the law is is claiming rights. Our beliefs of what legal order is/should be can differ from what law actually is. In Hartog's world law is constantly contested

1. There are generally secondary rules that specify which institutional authority gets the last word; he uses an exceptional case to make a general argument about the nature of law
2. we can recognize that law is an object of political conflict without saying that it is inherently pluralistic