I am the Chief Judge of Nowhere’s constitutional court, giving my opinion in the issue concerning actions raised against its Parliament passing Patriotic_Act. Actions were raised against Patriotic_Act’s inconsistency with Nowhere Constitution’s terms on freedom of expression rights and the fact that the Constitution has to prevail Parliament’s legislation. To give balanced decision whether the act should be set aside, thorough evaluation of my colleagues’ opinions, need to be done.
Judge_A refers herself to legal positivism – she upheld Patriotic_Act on another similar case’s judicial precedent. She seems to back Kelsen’s theory on the basis of authoritative sources. However, it was done incorrectly. As Kelsen valid law is derived from a higher rule (grundnorm, basicnorm). Constitution is self-validating, is the grundnorm of states’ legal system and in chain_of_validity. Therefore it must prevail Patriotic_Act as it expressly says in Nowhere’s_constitution. This_Act is contrary to Nowhere’s_constitution, thus breaks the chain_of_validity. It is invalid law, as it can’t be traced back. Kelsen’s point can be supported with Austin’s view about command backed by sanction, where the sovereign is uncommanded commander and is habitually obeyed by societies. However, Patriotic_Act wasn’t issued by the sovereign but was issued by Nowhere’s_Parliament, thus Patriotic_Act is invalid. Dworkin’s view on legal_positivism is different: he doesn’t look at legal sources. Judge_A has all discretion, has to undertake community’s fundamental morality. Therefore, he supports that this Act is invalid, as the principle of inconsistently with Constitution’s rights of freedom of expression outweighs. Also, Judge_A’s decision could be argued on Patriotic act’s consistency with freedom of expression rights which are “subject only to reasonable limits demonstrably justified in a free and democratic society” from Hart’s view. Judge_A might be regarded as soft_legal_positivist – her opinion was “unclear and open-ended”. So sources fall in separation pieces and she has to make internal view by giving moral judgements. However, she hasn’t done moral judgements; therefore contradicts herself in upholding this Act, as it doesn’t fall into subject “reasonable limits”. On the other hand, hard_legal_positivists argue that the view of law can’t be open-ended because will fall to separation of law_and_morality. Therefore, basing on theorists’ arguments above, I reject Judge A’s view on upholding Patriotic_Act.
Judge_B seems to back Finnis’s natural theory, focusing on basic good of life as reason to uphold Patriotic_Act for Nowhere’s residents’ security. She by prioritising the basic good of life over other goods, acts contrary practical reasonableness’s basic requirements – no arbitrary preference among values, where all basic_goods have to be equal. Therefore, her view contradicts Finnis’s point of view about basic_good_of_knowledge. When passed legislation gives Nowhere’s Parliament discretionary powers to punish people for positive publications about Anywhere’s is immoral and interferes with basic rule of knowledge. There is injustice and immorality in censorship_law_passing. Basic_good_of_knowledge means that people shouldn’t be deprived of any information from any particular source. Basic_good_of_knowledge means that people should be able to decide by themselves. It shouldn’t be up to our leaders to say that we can’t get positive information about enemy. In the interest of knowledge we are rational human beings. There should be no censorship. However, there is some limited degree of censorship to be plausibly justifiable regarding people’s security. Nevertheless, there is a breach in basic_good_of_knowledge from Finnis’s_view – failure to promote the common good and breach of one or more of basic goods counts as reasons not to obey Patriotic_Act. This makes this Act invalid and therefore, I am rejecting Judge_B’s view.
Judge_C follows Dworkin, decides that Patriotic Act is inconsistent with principle of equal respect and concern for Nowhere’s residents. I agree with his notion that it’s invalid as for Dworkin the definition of positive law is the rules of principles, which stand outside the law and implicit in the law itself. He introduced judge Hercules as idol standard to which judges should be inspired. Principles have dimension of weight. Riggs v Palmer case can be related to the procedure how courts do balanced judgements outweighing principles against each other. In our case, there are principles of equal respect and concern for Nowhere’s residents against principles of state’s patriotism compliance. It is necessary to treat people as equals, not equally. Therefore technically everyone is treated as equals if this ban is for everyone. There is fundamental principle that we should treat people with equal respect and concern that underlines all principles. The reason actions were raised against Patriotic_act is because the law wasn’t best fit with community morality. It fits only when people get these principles from their own moral reckoning and understanding of community cultures. For this reason, Judge_C also decides that Patriotic act is unconstitutional and should be struck down. This raises another question whether it was a bad law or not law at all. If we refer to Radburch and Fuller, the answer will be that Dworkin says it’s a bad law and should be invalidated. However, there is another argument from Fuller that it was such a bad law that it has never been the law on the first place as it failed the criteria to achieve inner morality.
In my conclusion, I am giving credits to Kelsenian_chain_of_validity, as constitution is the highest form of legal system’s validity. Therefore, I disagreed with Judge_A approach. However, moral values aspect in respect to law plays significant role in my decision as well. I support Nowhere’s_constitution about rights of freedom of expression; therefore rebutted Judge_B’s argument on Finnis’s breach of basic good of knowledge. Finally, I agree with Judge_C’s Dworkinian approach about principles of equal respect and concern inconsistency with constitution. However, I enjoyed Fuller’s view in response to Grudge_Informer_case. There is an example based on Radburch’s_formula when law is immoral, unbearable unjust – it doesn’t count as law. The debate between Fuller and Hart published in Harvard_Law_Review on the basis of Grudge_Informer_case helped me to understand different conceptions of law(valid and invalid law). Our case’s relation is seen in Judge_C’s evaluation. I approve Fuller’s view – there has never been a law, because it breeched the law of morality. Failure in any of these eight desirable things_(desiderata) doesn’t result in a bad law; it results in no system of law. The issue of Patriotic Act and inconsistency with constitution’s rights of freedom of expression resulted in breach of the 5th_desiderata – inconsistency and rules non-contradiction.
To conclude, I am backing my view with Fuller because I refer myself in middle_course between legal_positivism and natural_law_theory. The case of the Speluncean_Explorers has also helped me to contrast different legal theories, where legal_positivism and natural_law are significant ones. I reject natural_theorist’s claim that “unjust law is not a law” and legal positivist’s claim morality_and_law’s unnecessary connection. Therefore, I support Fuller that there are certain moral standards(“principles of legality”), built in law concept. Nothing counts as genuine law if they aren’t met. There’s also an inner morality to law imposing moralities of fairness. I agree with his point that there shouldn’t be obedience with laws that are over-unjust. However, even there, there is a positive law feature that imposes a moral obligation to obey such laws. In my opinion, this theory is best for the society.
My final decision is that Patriotic_Act should be set aside on the basis of its contradiction with inner morality of law and its break of chain_of_validity.