PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]

MODULE 7 Crazy Little Thing Called “Law” =Norm is a “philosopher’s term”, they use it instead of the term “Rule” because it is necessarily general
= The term “rule” arbitrarily restricts the principle to generalized standards of conduct, downside of using the term
us that it is used in many different ways, often without specifying which particular one they are using in a given
instance.
THE INVENTION OF LAW
=”Norms” are normative, not descriptive: They don’t purport to tell them what they are entitled to, ought to or may
State of nature by Thomas Hobbes
do
=Social condition without law and government would result to life as “Solitary, poor,nasty,brutish and short”
=Norms need not to be valid; always purport to tell you what you ought to do or what is desirable, good or
=Without a recognized authority for settling disputes, each person acting as judge,jury and executioner, conflict
acceptable, but whether they actually succeed at this task
and competition for scarce resources, would constantly threaten to erupt in violence.
=INVALID NORM- a norm that tells you to do something that you shouldn’t do; bad norm, nonnorm
=State of nature to be a largely fictional construct, no time had everyone lived entirety outside of law
=Norms are like names, always purport to refer,although they sometimes fail to do so
=Rather than risk such fate (life was not tolerable without law) , people were fortunate enough to live under stable
governments,even tyrannical ones, should not attempt to overthrow them but they SHOULD OBEY THEIR LEADERS IN
Possibility Solutions
ALMOST ALL CIRCUMSTANCES
=Possibility Puzzle-challenges the idea that legal authority is possible; arises when because it appears that anybody
with power to create legal norms must derive its power from some norm,while any norm that could confer such a
THOMAS HOBBES as DOUBTEDLY WRONG IN HIS CLAIMS
power must itself be created by someone with power to do so
= Anthropologists- humans mostly lived without law for the vast majority of their time on Earth
=Ultimate norm- Power to create legal norms, but which was not itself created by someone with a similar power, if
= Until 12 000 years ago, most humans called “Bands”(small collections of individuals that are generally mobile, have
they exist halt the Chicken egg principle by rejecting it, the legal power of anybody in a particular legal system
a relatively fluid membership, and subsist through hunting and gathering
would be traceable to some ultimate norm that exists without having been posited by anyone else
= They lack formal authority structures and are governed mostly by tradition,consensus and persuasion by elders(
=DIFFERENT STRATEGIES BY LEGAL THEORISTS
other words, DON’T HAVE LAW)
=God as the Ultimate Authority=classic natural law review, God created the natural law, which confers the legal
right on rulers to rule
2nd Serious Mistake by Thomas Hobbes
God’s moral authority, both necessary and sufficient to create legal authority
=assume that the state of nature was a state of war
Benefit of this approach(if God exists’s), she is a good candidate for the position of Ultimate Authority
=Human beings are social creatures and as such they worked together more or less peacefully in groups to collect
“Voluntaristic conceptions” of theological Eithics= God does not derive moral authority from some other norm or
food, raise, children and protect one another from outside predators
power, but is the unmoved mover of all rules and authority, legal and otherwise
=Governed by rules that regulated the bare essentials of social life: Sharing of food, selection of mates, forbearance
Modern natural law theorists have not relied on God to solve the Possibility Puzzle but have tended to look to certain
from physical aggression and so on
political communities’ moral right to determine the terms and direction of social cooperation
=Cooperation and order have not only been the norm, prehistoric society was only anarchic only in the strict, literal
=Standard Post Enlightenment view= people have the moral authority to direct their communal lives as they see fit,
sense that it did not have in groups without rules, but can and have,lived together for millennia without legal
this sovereign right doesn’t derive from God: it derives from the rules or principles of political morality(people
questions
receive their authority to affect the legal processes from these ultimate norms and thus have the power to transmit
=Contrary to Hobbes= State of nature is a philosophical fantasy, but a historical reality experienced by countless
legitimacy to democratically selected rulers
generations of human beings
John Austin’s View
Correct claims of Hobbes
=Sovereign derives his legal authority not from some other existing norm, but from his ability to coerce others not
=Without law there would be “no culture of the Earth; no navigation, nor use of the commodities that may be
conforming to his will
imported by sea; no commodious building; no instruments of moving and removing,things will be acquired by force
=Sovereign is an ultimate authority because his power to create legal norms rests merely on the social facts that his
and no knowledge of the face of the Earth, no account of time, no arts, no letters,no society
will is habitually obeyed by the political community and that he habitually obeys no one else
=Civilization is possible only with a very high degree of social cooperation and interdependence, which in turn, is
only possible only when a community has the ability to regulate social relations efficiently and effectively.
Legal Authority are ultimately traceable to social rule (Positivistic solution)= People in democratic countries have
=Law was a revolutionary invention precisely because it permitted this regulation and humans could use it to create,
the legal power to select their rulers not because they are morally entitled to so, but rather because these courts
modify and apply rules and thereby manage the myriad aspects of social life without having to rely solely on custom,
and other legal officials follow rules mandating deference to their choices.
tradition, persuasion or consensus
H.L.A Hart= rules come about not through the exercise of normative power, courts do not have the legal authority to
HOW IS LAW POSSIBLE
create a legal system but are simply products of an established practice of deference
=No way of knowing whether the first society to have law intentionally set out to create an efficient method of
=FUNDAMENTAL RULES OF THE LEGAL SYSTEM ARE ULTIMATE NORMS THAT REST PURELY ON SOCIAL FACTS
social regulation, or whether they simply stumbled upon it by accident.
= In creating law, they produced a technology that has remained organized religion,popular morality and social
ULTIMATELY
convention, an invaluable tool for command control.
=Legal Positivist maintains that the law is ultimately determined by social facts alone, whereas the natural lawyer
believes that moral facts play a crucial role as well
A NOTE ON NORMS
HUME’S CHALLENGE
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
Philosophers often use puzzle as analytical puzzles as analytical devices for solving important philosophical problems
Riddles enable them to isolate deep, and hence often unexamined, assumptions underlying our conception of a
certain area or subject matter and show that these presuppositions clash in some fundamental ways
Possiblity Puzzle is therefore the best way the best seen as analytical device that legal philosophers can use to
determine the foundations of legal system
“ON WHAT DOES LEGAL AUTHORITY ULTIMATELY REST,SOCIAl FACTS ALONE OR MORAL FACTS AS WELL?”-Too abstract
question, the best method is to ask the same question in a form of puzzle about the possibility of law, gives us a
better handle on how to resolve an issue about which there are real and living doubts, allows Philosophers to look at
the question from a different angle, thus, suggesting new approaches to resolving these issues
Prompts us to consider the various types of ultimate norms and authorities that exist and whether legal authority can
be founded on any of them
Possibility Puzzle concerns the ultimate foundations of legal systems, for the positivist solution are correct, and the
law rests on social facts alone, then the only way to definitively determine the fundamental rules of a particular
legal system and its proper interpretative methodology is to engage in sociological inquiry
Positive v. Natural
Solution to the Possiblity Puzzle has important implications for legal reasoning
Because legal judgments must track legal facts, a theory that tells us which facts ultimately determine the content
of the law will be essential for a theory that tells us how to discover the content of the law
Natural
= How can positive have the legal authority to create rules when rules are required to confer such authority and
authority to create rules, when rules are required to confer such authority and authority to create such rules?
Positive
= Legal Authority ultimately rests on political power, since he has the ability to punish anyone who does not obey, he
has the legal right to impose an obligation on them to obey
Natural
= In order to be legally obligated to listen, you must demonstrate that you legally ought to be obeyed, since no one
can derive an ought from an is, it follows naturalists can’t be legally obligated to listen to you
Positive
=Legal authority, derives from the practice of deference among members of the group
According to Legal Positivist, the content of the law is ultimately determined by social facts alone, to know the law
therefore, one must be able to derive this information exclusively from knowledge of social facts
Legal Positivism= appears to violate the famous principle introduced by David Hume(Hume’s Law), which states that
one can never derive an ought from is.
NINO AND DINO
=Hume’s Law states” no normative conclusion can follow from statements that report them, in order to justify my
claim as authority, I must produce a principle that “bridges “ the descriptive-normative divide
PICK YOUR POISON
Natural law has its own poison/problem
=By insisting on grounding legal authority in moral authority or moral norms, natural law theory rules out the
possibility of evil legal systems
=”PROBLEM OF EVIL”
=Consider how natural lawyers must respond to the Problem of Evil
 1.) Must deny that they are flouting truism
 2.) Claim that their truism-flouting is not nearly as bad as the problems the positivists face
MODULE 8 NATURAL LAW
Natural law
=Best description: Intersection between law and morals
John Finnis
=”Natural Law and Natural Rights”- When we attempt to explain what law is, we make assumptions, willy-nilly,
about what is “good”
=Supposed to be an evaluation of law as a type of social institution, if it is to be undertaken at all, must be preceded
by a value-free description and analysis of that institutions as it exists in fact. But the development of modern
jurisprudence suggests, and reflection on the methodology of any social science confirms, that a theorist cannot
give a theoretical description and analysis of social facts, unless he also participates in the work of evaluation, of
understanding what is really good for human persons, and what is really required by practical reasonableness.
Trenchant Foundation for an analysis of natural law
= Proposes: When we are discerning what is good, we are using our intelligence differently from when we are
determining what exists
=We are to understand the nature and impact of the natural law project, we must recognize that it yields a different
logic
Cicere( Stoic Philosophy)
=3 main components of any natural law philosophy:
True law is right reason in agreement with Nature, it is of universal application,unchanging and everlasting…It is a
sin to try to alter this Law, nor is it allowable to attempt to repeal any part of it, and is impossible to abolish it
entirety..(God) is the author of this Law, its promulgator,a nd its enforcing judge
= Underlie’s natural law’s universality and immutability,standing as “higher law” and its discoverability by reason
Classic natural law doctrine: Employed to justify both revolution and reaction
It was the Greek Stoics, were particularly attracted to the notion of natural law, where “natural” meant in
accordance with reason
Approach adopted by Romans= Laws which did not conform to reason might be regarded as invalid
Catholicism
= St. Augustine: “What are States without Justice, but robber bands enlarged?”
= St. Thomas Aquinas:Summa Theologiae= FOUR CATEGORIES OF LAW
Eternal law(divine reason known to God)
Natural law(participation of the eternal law in rational creatures (discoverable by reason)
Divine law(revealed in the scriptures)
Human law(supported by reason, and enacted for the common good
St.Augustine
= Natural law is merely one element of divine providence: it is a ‘participation’ in the eternal law-the rational plan
that orders all creation
=Means by which rational beings participate in the eternal law. When human beings ‘receive’ natural law, its content
comprises the principles of practical rationality by which human action is to be judged as reasonable or unreasonable
Aquinas
=’Law’, for law, he asserts, consists in rules of action declared by one who protects the interests of the community:
since God defends and protects the universe, His decision to create rational beings with the capacity to act freely in
accordance with reason entitles our regarding the principles as constituting ‘law’
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
=Tenets of natural law are binding on us, because as rational beings, we are guided towards them by nature; they
point us towards certain specific goods.
=These principles are known to us by virtue of our nature: We exhibit this knowledge in our inherent aspiration to
achieve the various goods that natural law exhorts us to pursue.
=Discern the essence of practical knowledge, though the precise practical consequences of that understanding may
often be difficult to determine
=Our passion or malevolence may obstruct their application.
=GOOD BE DONE AND EVIL BE AVOIDED
=We have a continuing duty to seek the good.
=We know intuitively what constitutes the good: it includes LIFE, KNOWLEDGE, PROCREATION, SOCIETY, AND
REASONABLE CONDUCT
=Good is the prior right
=We are capable of reasoning from these principles about goods to practical means by which to realize these goods
=When an act is fundamentally unsound?
 Dissect features of the acts in questions, such as their objects, their ends,their circumstances under which
they are carried out
>> “LAW THAT FAILS TO CONFORM TO NATURAL OR DIVINE LAW IS NOT A LAW AT ALL”
LEX INIUSTA NON EST LEX- AN UNJUST LAW IS NOT LAW
Corruption of Law=A government that abuses its authority by enacting laws which are unjust (unreasonable or
against the common good) forfeits its right to be obeyed because it lacks moral authority
But he does not appear to support the view that one is always justified in disobeying an unjust law,for though he
does declare that if a ruler enacts unjust law ‘their subjects are not obliged to obey them’
Hugo de Groot/Grotius(1583-1645)
=De Jure Belli ac Pacis- even if God did not exist, natural law would have the same content
Sir William Blackstone’s Commentaries on the Laws of England( 1723-80)
=English law derives its authority from natural law but although he invokes this divine source of positive law, and
even regards it as capable of nullifying enacted laws in conflict with natural law, his account of the law is not
actually informed by natural law theory
Principles of natural law have been used to justify revolutions,specially American and French, on the ground that the
LAW INFRINGED INDIVIDUAL’S NATURAL RIGHTS
LIFE ,LIBERTY, AND THE PURSUIT OF HAPPINESS
Declaration des droit de l’homme et du citoyen= natural rights of mankind
Natural law was applied in the form of a number of contractarian theories that conceive of political rights and
obligations in terms of a social contract.
Not a contract in a strict legal sense, but expresses the idea that only with his consent can a person be subjected to
the political power of another.
NATURAL RIGHTS: HOBBES,LOCKE, and ROUSSEAU
NATURAL LAW
THOMAS HOBBES
=”Leviathan”- Condition of man before the social contract,i.e in his natural state-Life is “solitary, poor,
nasty,brutish and short’
= Teaches us the necessity of self-preservation: LAW AND GOVERNMENT ARE REQUIRED IF WE ARE TO PROTECT
ORDER AND SECURITY
=UNDER SOCIAL CONTRACT-Surrender our natural freedom in order to create an orderly society
=Undermine the legitimacy of revolutions against (even malevolent) governments
=Every act we perform though ostensibly kind of altruistic, is actually self-serving
=We are essentially equal, mentally and physically, even the weakest-suitable armed-has the strength to kill the
strongest
= Generates discord, we tend to wrangle, for 3 main reasons: COMPETITION (FOR LIMITED SUPPLIES OF MATERIAL
POSSESSION), distrust and glory(we remain hostile in order to preserve our powerful reputations)
= As a consequence, we are in a natural state of perpetual war of all against all, where no morality exists and all live
in constant fear
=In order to escape the horror of the state of nature
=PEACE- FIRST LAW OF NATURE
=WE MUTUALLY DIVEST OURSELVES OF CERTAIN RIGHTS SO AS TO ACHIEVE PEACE=2nd
= MUTUAL TRANSFERRING OF RIGHTS IS A CONTRACT AND IS THE BASIS OF MORAL DUTY,HE IS UNDER NO ILLUSION
THAT MERELY CONCLUDING THIS CONTRACT CAN SECURE PEACE
=TO SHOW GRATITUDE TOWARD THOSE WHO COMPLY WITH CONTRACTS= 4th
JOHN LOCKE
=before the Social contract, life was paradise, in this state of nature, property was inadequately protected
=”TWO TREATIES OF CIVIL GOVERNMENT”-in order to rectify this law in an otherwise idyllic natural state that man
forfeited, under a social contract under his freedom
=The social contract, preserved the natural rights to life,liberty,property and the enjoyment of private rights:the
pursuit of happiness,engendered in civil society
=Natural right of every person is every thing
=Our natural right to freedom is constrained by the law of nature and its directive that we should not harm each
other in ‘LIFE,HEALTH ,LIBERTY OR POSSESSIONS”
=LIMITED FORM OF GOVERNMENT: CHECKS AND BALANCES AMONG BRANCHES OF GOVERNMENT AND THE GENUINE
REPRESENTATION IN THE LEGISLATURE WOULD IN HIS VIEW,MINIMIZE GOVT. AND MAXIMIZE INDIVIDUAL LIBERTY
JEAN JACQUES ROSSOUE (1712-78)
=”SOCIAL CONTRACT”, is an agreement between the individual and the community by which he becomes part of
what Rousseau calls the “GENERAL WILL”,CERTAIN NATURAL RIGHTS CAN NOT BE REMOVED, BUT,BY INVESTING THE
‘GENERAL WILL’ WITH TOTAL LEGISLATIVE AUTHORITY, THE LAW MAY LEGITIMATELY INFRINGE UPON THESE RIGHTS
=Concept of GENERAL WILL IS TIED TO HIS CONCEPT OF SOVEREIGNTY WHICH, IN HIS VIEW, IS NOT MERELY
LEGITIMATE POLITICAL POWER,BUT ITS EXERCISE IN PURSUIT OF THE PUBLIC GOOD
=OBJECTIVE- “general” in sense that it cam establish rules,social classes, or even a monarchy, but it can never
specify the individuals who are subject to the ruels,members of the classes or the rulers.
=MAN MUST BE “FORCED TO BE FREE”-individuals surrender their free will to create a popular sovereignty
THE FALL AND RISE OF NATURAL LAW
DAVID HUME (1711-76) TREATISE OF HUMAN NATURE
Moralist seek to derive an “ought” from an “is”: WE CANNOT CONCLUDE THAT THE LAW SHOULD ASSUME A
PARTICULAR FORM MERELY BECAUSE A CERTAIN STATE OF AFFAIRS EXISTS IN NATURE
=Nuremberg war trials of senior officials regenerated law ideals, applied the principle that certain acts constitutes
“crimes against humanity” even if they do not appeal explicitly to natural law theory, but their judgments represent
an important recognition of the principle that the law is necessarily the sole determinant what is right.
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]

LON FULLER: ‘THE INNER MORALITY O F LAW’ 3.) No arbitrary preference among values
4.) No arbitrary preference among persons
5.) Detachment and commitment
LON L. FULLER (1902-78)
6.) The( Limited) relevance of consequences:Efficiency within reason
=”INNER MORALITY”, by this, he means that a legal system has the specific purpose of subjecting human conduct to
7.) Respect for every basic value in every act
the governance of rules
=NECESSARY CONNECTION BETWEEN LAW AND MORALITY
‘WHAT IS REALLY GOOD FOR HUMAN PERSONS’= We cannot pursue human goods until we have a community, the
=KING REX AND THE 8 WAYS IN WHICH HE FAILS TO MAKE LAW
authority of a leader derives from his serving the best interests of that community.Hence, should he enact unjust
1.) HE FAILS TO ACHIEVE RULES AT ALL, SO THAT EVERY ISSUE MUST BE DECIDED ON AN AD HOC BASIS
laws, because they militate against the common good, they would lack the direct moral authority to bind
2.) HE DOES NOT PUBLICIZE THE RULES THAT HIS SUBJECTS ARE EXPECTED TO OBSERVE
Principles of Justice= Generate several absolute obligations which correlative absolute natural rights:One needs
3.) HE ABUSES HIS LEGISLATIVE POWERS BY ENACTING RETROACTIVE LEGISLATION
some conception of human good, of individual flourishing in a form( or range of forms) of communal life that
4.) HIS RULES ARE INCOMPREHENSIBLE
fosters rather than hinders such flourishing)
5.)HE ENACTS CONTRADICTORY RULES OR
6.) RULES THAT REQUIRE CONDUCT BEYOND THE POWERS OF THE AFFECTED PARTY
Natural Right= right not to be tortured, not to have one’s life taken as a means to any further end, not to be lied to,
7.) HE INTRODUCES SUCH FREQUENT CHANGES IN THE RULES THAT HIS SUBJECTS CANNOT ADJUST THEIR ACTION
not to be condemned on knowingly false charges, not to be deprived of one’s capacity to procreate and the right to
8.) HE FAILS TO ACHIEVE CONGRUENCE BETWEEN THE RULES AS ANNOUNCED AND THEIR ACTUAL ADMINISTRATION
be taken into respectful consideration in any assessment of what the common good requires
FULLERS 8 PRINCIPLES(Ill-fated King Rex bites the dust because he disregards his 8 principles
MORAL DILEMMAS:ABORTION AND EUTHANASIA
1.) GENERALITY 5.) NON-CONTRADICTION
2.) PROMULGATION 6.)POSSIBILITY OF COMPLIANCE
=Subject of abortion is highly contentious-especially in US
3.) NON-RETROACTIVITY 7.)CONSTANCY
Christian groups condemn (occasionally violently) the practice as the murder of a potential human being
4.) CLARITY 8.) CONGRUENCE
Feminists: Regard the matter as fundamental to a woman’s right to control her own body.
Roe vs Wade
CONCLUDES= WHERE A SYSTEM DOES NOT CONFORM TO ANY ONE OF THESE PRINCIPLES, OR FAILS SUBSTANTIALLY IN
= 1973, legendary decision of the US Decision=The judges decided that the abortion law of Texas which criminalized
RESPECT OF SEVERAL , IT COULD NOT BE SAID THAT “LAW” EXISTED IN THE COMMUNITY
abortion, except when performed to save the pregnant woman’s life, was unconstitutional as a violation to right of
GENERAL VIEW:COMPLIANCE WITH FULLER’S 8 DESIDERATA CERTIFIES ONLY THAT THE LEGAL SYSTEM FUNCTIONS
privacy
EFFECTIVELY AND HENCE, SINCE THIS CAN’T BE A MORAL CRITERION,AN EVIL REGIME MIGHT JUST AS EASILY SATISFY
=The judgment established the right of states to prohibit abortion to protect the life of the fetus only in the third
THE TEST
semester, the ambition of many Christian groups is to see the judgment overruled.
=In pursuit of a just resolution to this complex subject each society needs to consider its own moral norms.
CONTEMPORARY NATURAL LAW THEORY
JOHN FINNIS
EUTHANASIA
=NATURAL LAW AND NATURAL RIGHTS- represents a significant restatement of classical natural law doctrine
=Active Euthanasia- acceleration of a person’s life by a positive act(injection of potassium chloride)
=he rejects David Hume’s conception of practical reason= my reason for undertaking an action is merely ancillary to
=Passive Euthanasia- Curbing of life by an omission to act: a withdrawal of treatment,which is increasingly accepted
my desire to attain a certain objective
as humane by both the law and the medical profession in many jurisdictions
=Reason- informs me only how best to achieve my desires; it cannot tell me ought to desire
=Generalities are not easy in respect of either the morality or lawfulness of ending the life of a patient
=Prefers Aristotelian foundation: What constitutes a worthwhile, valuable, desirable life?
 Incurable- continuum ranging from incapacity( fully conscious patient attached to a
7 BASIC FORMS OF HUMAN FLOURISHING( to flourish as human beings)
ventilator),unconsciousness,intensive care(patient is comatose and attached to a ventilator)
>Essential features that contribute to a fulfilling life,each is universal(governs all human societies at all times, and
English Case: Anthony Bland
each has an intrinsic value in that it should b evalued for its own sake and not merely to achieve some other
good,purpose of moral beliefs is to provide an ethical structure to the pursuit of these basic goods,these principles
facilitate our choosing among competing goods and enable us to define what we are permitted to do in pursuing a
basic good LEGAL POSITIVISM
1.) Life 5.) Sociability
2.) Knowledge 6.)Practical Reasonableness
3.) Play 7.) Religion Positivism=Latin ‘positum; , Law as it is laid down or posited
4.) Aesthetic experience Core of Positivism= Validity of any law can be traced to an objectively verifiable source
Rejects the view that law exists independently from human enactment
Each is universal, in that it governs all human societies at all times, and each has intrinsic value in that it should be HLA Hart= looks to a rule of recognition that distinguishes law from other social rules
valued for its own sake and not merely beliefs is to provide an ethical structure to the pursuit of these basic goods Hans Kelsen= identifies a basic norm that validates the constitution
1.) The active pursuit of goods No necessary claim between law and morals, and that the analysis of legal concepts is worth pursuing, and distinct
2.) A coherent plan of life from sociological and historical enquiries and critical evaluation
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
Law laid down should be separate, for the purpose of study and analysis, from the law as it ought morally to
be=clear distinction must be drawn between “ought”(which is morally desirable) and ‘is’(which actually exists)
Both Austin and Bentham acknowledge that disobedience to evil laws is legitimate if it would promote change for the
good.
LAW COMMANDS( BENTHAM AND AUSTIN)
JEREMY BENTHAM (1748-1832)
= Indeterminacy of common law, is endemic
=Unwritten law is intrinsically vague and uncertain, can’t provide a reliable,public standard which can reasonably be
expected to guide behavior
=Codification- legal codes would significantly diminish the power of judges; their task would consist less of
interpreting than administering the law
=Remove much of the need for lawyers: the code would be readily comprehensible without the help of legal advisers
=Utilitarian & law reformer, but insisted on the separation between what he called ‘expositorial’( describes what is)
and ‘censorial (what ought to be) ’jurisprudence
=commands are merely one of four methods by which the sovereign enacts law
=Laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct
(permissive laws)
=All laws are both penal and civil; even in the case of title to property there is a penal element
= Show that laws which impose no obligations or sanctions (civil laws) are not complete laws but merely part of the
laws
=Principal objective- creation of a code of law, penal and civil branches should be formulated separately
=sovereignty may be limited or divided, and accepts the possibility of judicial review of legislative action
= concedes that a sovereign’s commands would constitute law even in the absence of sanctions in the Austinian
sense
=Law, includes both punishment (coercive motives) and rewards ( alluring motives)
JOHN AUSTIN (1790-1859)
=The Province of Jurisprudence Determined(1832)
=idea of commands or imperatives, though he provides a less elaborate account of what they are
LAWS OF GOD and HUMAN LAWS
Strictly so called, Human laws=law set down by men for men, positive laws- laws laid down by men as political
superiors or in pursuance of legal rights and laws
Improperly so called, laws by analogy (e.g laws of fashion, constitutional and international law) and by metaphor(law
of gravity)
Positive morality( laws by analogy, together with laws set by men not as political superiors or in pursuance of legal
right)only positive law that is subject of jurisprudence
=Command of the Sovereign( central feature)= only general commands count as law and only commands emanating
from the sovereign are ‘positive laws;’ commanda requires him to exclude customary,constitutional and public
international law from the field of jurisprudence, because no specific sovereign can be identified as the author of
their rules
=Sanction-some harm, painor evil that is conditional upon the failure of a person to comply with the wishes of the
sovereign,realistic probability that it will be inflicted upon anyone who infringes a command
=WISH,SANCTION,EXPRESSION OF A WISH AND GENERALITY) sovereign-whose commands are obeyed by political
inferiors and who owes obedience to no one
=Duty in terms of Sanction: if the sovereign expresses a wish and has the power to inflict an evil(sanction) then a
person is under a duty to act in accordance with that wish
=wish and expression of a wish- bill and a statute
Both share a concern to confine the scope of jurisprudential enquiry to accounting for and explaining the principal
features of the law.
LAW AS SOCIAL RULES:HLA HART
=THE CONCEPT OF LAW(1961)= classic of legal theory and has served as a catalyst for many other jurists around the
world
=Law as a social phenomenon that can be understood only by describing the actual social practices of a commn=unity
=In order for it to survive as a community, there need to be certain fundamental rules
=’minimum content of natural law’= arise out of our human condition which manifests the following essential
features:
‘HUMAN VULNERABILITY’: WE ARE ALL SUSCEPTIBLE TO PHYSICAL ATTACKS
‘APPROXIMATE EQUALITY’: EVEN THE STRONGEST MUST SLEEP AT TIMES
‘LIMITED ALTRUISM’: WE ARE IN GENERAL, SELFISH
‘LIMITED RESOURCES: WE NEED FOOD, CLOTHES AND SHELTER AND THEY ARE LIMITED
‘LIMITED UNDERSTANDING AND STRENGTH OF WILL’: WE CANNOT BE RELIED UPON TO COOPERATE WITH OUR
FELLOW MEN
=NUCLEUS OF HART’S THEORY: EXISTENCE OF FUNDAMENTAL RULES ACCEPTED BY OFFOCIALS AS STIPULATING
PROCEDURES BY WHICH THE LAAW IS E NACTED
=RULE OF RECOGNITION- fundamental constitutional rule of a legal system, acknowledged by those officials who
administer the law as specifying the conditions or criteria of validity which certify whether or not a rule is indeed a
rule
=Law= system of rules, All societies have social rules, include rules relating to morals, games,etc. as well as
obligation rules in all societies
Legal rules- PRIMARY RULES=use of violence,theft and deception to which human beings are tempted but which they
must normally repress if they are to coexist in close proximity
=As society changes there is a need to change the primary rules, to adjudicate on breaches of them, and to identify
which rules are obligation rules
=Existence of a legal system requires 2 conditions must be satisfied
>Valid obligation rules must be generally obeyed by members of society
> Officials must accept the rules of change and adjudication
=Social dimension of rules- manner in which the members of a society perceive the rule in question
=Secondary rules pf 3 kinds
 Rules of change= facilitate legislative/judicial changes to both the primary rules and certain secondary
rules
 Process of change is regulated by secondary rules that confer power on individuals or groups to enact
legislation in accordance with certain procedures
Rule of adjudication that confer authority on individuals (judges) to pass judgment mainly in cases of breaches of
primary rules
=Rule of Recognition- determines the criteria by which the validity of all the rules of a legal system is decided
=RULES ARE VALID MEMBERS OF THE LEGAL SYSTEM ONLY IF THEY SATISFY THE CRITERIA LAID DOWN BY THE RULE OF
RECOGNITION- neither invalid or valid, but is simply accepted as the correct standard
=Where a legal system fails to receive general approval, it would be both morally and politically objectionable
LAW AS NORMS: HANS KELSEN( 1881-1973)
= complex ‘ pure theory of law’
=System of ‘ought’ or norms
= Influenced by the great 18th century Philosopher Immanuel Kant, he accepts that we can understand objective
reality only by the application of certain formal categories like time and space that do not exist in nature: use them
in order to make sense of the world
=We need to disinfect the law of the impurities of morality,psychology, sociology and political theory
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]

=Ethical cleansing: ‘oughts’ that declare that if certain conduct (X) is performed, then a sanction (Y) should be
applied by an official to the offender.
=Law has one purpose: THE MONOPOLIZATION OF FORCE
=Concept as a Norm: Something ought to be, or something ought to happen, in particular, a person ought to behave
in a specific way
=There are values out there, all norms are relative to the individual or group under consideration
=promotion of social order is achieved by governments enacting norms that deternine whether our conduct is lawful
or unlawful, and these norms determine whether our conduct is lawful or unlawful=provide sanctions for failure to
comply them
=Model of legal system: Succession of interconnected norms advancing from the most general ‘oughts’ to the most
particular or ‘concrete’
=BASIC NORM=VALIDITY OF ALL NORMS
=BASIC NORM/GRUNDNORM= as the validity of each norm depends on a higher norm whose validity depends in turn
on another higher norm, we eventually reach out a point of no return, only exist in ‘juristic consciousness’ –
assumption that makes possible our comprehension of th e legal system by the legal scientist, judge, or lawyer
=Basic norm functions: First, it assists us in distinguishing between the demands of a robber and those of the law, it
enables us to regard a coercive order as objectively valid
=2nd: explains the coherence and unity of a legal order
=Any human conduct, may be the subject of a legal norm
=Effectiveness of the whole legal order is a necessary condition of its validity of every norm within it
=’The Pure Theory of Law’- Every by and large effective coervive order can be interpreted as an objectively valid
normative order
=If the validity of a legal order requires the effectiveness of its basic norm,it follows that when that basic norm of
the system no longer attracts general support, there is no law.This what happens after a successful revolution.The
existing basic norm no longer exists,once the new laws of the revolutionary government are effectively
enforced,lawyers may presuppose a new basic norm.
=3 common arguments made for the moral authority of law
-First, often distinguished, as positivists do, between law and other forms of social control, is to neglect the
functions of law; and because functions cannot be described in a value-free manner, any functional account of law
must involve moral judgments and argues that, while law does indeed have certain functions, his own analysis of
them is value-neutral
-Second, content of law cannot be determined exclusively by social facts\
-Finally, it is occasionally argued that what is distinctive about the law is that it conforms to the ideal rule of law
belief that no one is above the law
SCOTT SHAPIRO
-‘Planning Theory of Law’
-Legal activity is a form of social planning
-Legal rules are fundamentally ‘generalized plans’ or ‘planlike norms’ for a community originating from legal
institutions vested with the authority to issue such plans
-Life itself, is an exercise in planning, whether it be our preparations for cooking dinner or the arrangements we
make for our future
Contemporary legal positivism has grown increasingly technical and sophisticated
HARD POSITIVISTS- all criteria of legality must be ‘social sources’, determination of whether something is ‘law’
cannot turn on a norm’s content or substantive value of merit, existence of a particular ‘law’(does not depend on
whether it ought to be the law), insists that the validity of a purported legal norm, can not turn on the moral merits
of the norm in question, they therefore acknowledge that occasionally the law may incorporate moral criteria for
ascertaining what the law is

LAW AS A SOCIAL FACT: JOSEPH RAZ

=identity and existence of a legal system: EFFICACY,INSTITUTIONAL CHARACTER and SOURCES
=legality does not depend on its moral merit SOFT POSITIVISTS (inclusive positivists or incorporationists) accept that some principles may be legally binding by
=Law is autonomous: we can identify its content without recourse to morality virtue of their value or merit, but morality can be a condition of validity only where the rule of recognition so
=Legal Reasoning- not autonomous, inevitable,a and desirable,feature of judicial reasoning,existence and content of stipulates, accepts that the rule of recognition may incorporate moral criteria, therefore what the law is may
every law may be determined by a factual inquiry about conventions, institutions and the intentions of participants sometimes rest on moral considerations
in the legal system
=”What is Law”- a fact but is never a moral judgement
=Hard or ‘exclusive’ positivist- because the reason we regard the law as authoritative is the fact that it is able to
guide our behavior in way that morality cannot do= LAW ASSERTS ITS PRIMACY OVER ALL OTHER CODES OF
CONDUCT
=LAW is THE ULTIMATE SOURCE OF AUTHORITY
=3 PRINCIPAL CLAIMS made by POSITIVISTS and ATTACKED BY NATURAL LAWYERS
SOCIAL THESIS- Law may be identified as a social fact,without reference to moral considerations
MORAL THESIS- moral merit of law is neither absolute nor inherent, but contingent upon ‘ the content of the law and
their circumstances of the society to which it applies
SEMANTIC THESIS: normative terms such as ‘right’ and ‘duty’ are not used in moral and legal contexts in the same
way
= 3 common arguments made for the moral authority of law
-Distinguish between law and other forms of social control, is to neglect the functions of law, and because these
functions cannot be described in a value-free manner, any functional account of law must involve moral judgments
=Primary function of law (justification for the sources of thesis)- Setting of standards by which we are bound, in such
a way that we cannot excuse our non-compliance by challenging the rationale for the standard
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
ADDITIONAL BURDEN:
'The Case of the Speluncean Explorers'
This is a summary of a fictitious case created in Lon L Fuller, ‘The Case of the
Speluncean Explorers’ (1949) 62(4) Harvard Law Review 616. The case takes place in
the equally fictitious ‘Commonwealth of Newgarth’, and Fuller’s article contains five
judicial opinions that explore the facts from different legal perspectives. It is useful as an
illustration of the scope and diversity of Anglo-American legal philosophy in the mid-20th
century.
Basic facts
A group of cave explorers (spelunkers) are trapped by a landslide. Approaching
starvation, they make radio contact with the rescue team. Engineers on the rescue team
estimate that the rescue will take a further 10 days. After describing their situation to
physicians, they are told it is unlikely that they wil survive another 10 days without food.
The explorers ask the physicians whether they would survive if they killed and ate one of
their number. The physicians advise, reluctantly, that they would. When asked if they
ought to hold a lottery to determine whom to kill and eat, no one on the rescue team is
willing to advise.
The radio is turned off, and later a lottery is held. The loser is killed and eaten. When they
are rescued they are prosecuted for murder, for which, in the Commonwealth of
Newgarth, a guilty verdict carries a mandatory sentence of capital punishment.
The opinions of the judges
OlbrychtPalmer.net About Articles Notes
The defendants were initially convicted and sentenced to be hanged by the ‘Court of
General Instances of the County of Stowfield’ but have brought a petition of error before
the court. Truepenny CJ provides a more complete overview of the facts than is above.
Each judge gives a separate opinion: Truepenny CJ,
Judgment of Truepenny CJ
Statement of facts
The four defendants and the deceased were part of the ‘Speluncean Society’, an
amateur cave-exploration organisation, and became trapped in a cavern as a result of a
landslide. The remote location made rescue difficult, time-consuming and expensive. Ten
workmen were killed in the rescue.
In addition to the Society’s funds, it took an additional 800,000 ‘Frelars’ (ie, the currency
of the Commonwealth of Newgarth) provided by popular subscription and legislative
grant to rescue the explorers. After 32 days, they were rescued.
Early on it was recognised that death by starvation was a possibility. On the 20th day, it
was realised that the explorers had a two-way radio of sorts and oral communication was
established.
The engineers informed the explorers that at least 10 more days would be needed to
rescue them. Upon further inquiries, a team of medical experts informed that explorers
that considering the conditions and rations inside the cave, the chances of survival for a
further 10 days were remote.
The explorers asked whether they would survive if they resorted to cannibalising one of
the number. It was reluctantly confirmed they could. Whetmore asked if casting lots as to
whom should be eaten was advisable; no physician, judge, government official, minister
or priest would provide an answer.
No further messages were received from within the cave. When the explorers were
released, it was learned that on the 23rd day after entering the cave, Whetmore had
been killed and eaten.
The defendants’ testimony, accepted by the jury, was as follows:
Whetmore proposed that they derive the necessary sustenance from killing and
eating one of their number. Whetmore also proposed casting lots, using a pair of
dice he happened to have with him. Initially the defendants were reluctant to adopt
this desperate measure, but agreed when hearing the radio conversations. The
explorers devised and agreed upon a method of using the dice to cast lots.
Before the dice were cast, Whetmore withdrew from the arrangement claiming he
would wait another week. ‘The others charged him with a breach of faith and
proceeded to cast the dice.’ Before throwing the dice on his behalf, the defendants
asked Whetmore to declare any objections to the fairness of the throw. He did not
object, and the throw went against him.
Whetmore was put to death and eaten.
The defendants were treated for malnutrition and shock, then indicted for murder. At trial,
the foreman of the jury (a lawyer by profession) asked the court whether the jury could
find a special verdict that left it to the court to say whether, on the facts as found, the
defendants were guilty. Both prosecution and defence accepted this.
On the facts as found by the jury, the trial judge ruled the defendants were guilty of
murder and sentenced them to be hanged, the mandatory sentence.
Post-trial, the jury joined in a communication to the Chief Executive of Newgarth,
requesting the sentence be commuted to imprisonment of six months. The trial judge did
similar. The Chief Executive waits for the Supreme Court’s disposition of the petition of
error before making a decision regarding clemency.
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
Judgment
Truepenny CJ holds the course taken in the first instance to be ‘fair and wise’; and the
only course open to be taken. The Chief Justice acknowledges that no exception to the
statutory provision applies, regardless of how sympathetic people may be.
The Chief Justice prefers to rely on possible executive clemency, described as
‘mitigating the rigors of the law’, and proposes that the Supreme Court joins in the
communication to the Chief Executive, expecting clemency to be granted. Justice can
be done in this way, without disregarding either the letter or spirit of the law.
Thus, Truepenny CJ upholds the conviction.
Judgment of Foster J
Foster J criticises Truepenny CJ’s attempt to ‘escape the embarrassments of this tragic
case.’ His Honour believes that the very law of Newgarth is on trial, and if the defendants
are found to have committed a crime the law of Newgarth is ‘convicted in the tribunal of
common sense’.
The first ground for this opinion is that positive law’s foundation is the possibility of human
social coexistence. Where this coexistence becomes impossible, the condition
underlying the law ceases to exist. Foster J states that the maxim cessante ratione legis,
ceassat ipsa lex (‘the reason for a law ceasing, the law itself ceases’) applies (though
acknowledging it is not usually applied to the whole of the enacted law).
Foster J considers the coexistence principle to be axiomatic. All law, regardless of
subject, is directed towards facilitating and improving human coexistence — regulating
fairly and equitably ‘the relations of their life in common.’ Foster J states clearly:
When the assumption that men may live together loses its truth, as it obviously did in
this extraordinary situation where life only became possible by the taking of life, then
the basic premises underlying our whole legal order have lost their meaning and
force.
Foster J holds that the explorers were outside the jurisdiction of the Commonwealth: ‘If
we look to the purposes of law and government, and to the premises underlying our
positive law, these men when they made their fateful decision were as remote from our
legal order as if they had been a thousand miles beyond our boundaries.’
The explorers were ‘not in a “state of civil society” but in a “state of nature”’ and
consequently the laws of the Commonwealth of Newgarth do not apply. The principles of
law to be applied are those that were appropriate to their condition, and ‘under those
principles they were guiltless of any crime.’
[In common law jurisprudence, such approaches have been rejected. Consider, as the
leading example, the case of R v Dudley (1884) 14 QBD 273 DC where necessity was
rejected as a defence to murder. In that case, two shipwrecked men killed and ate a
cabin boy who was in a coma. On the other hand, in Cooper v Stuart (1888) 14 App Cas
286, the Privy Council held ‘In so far as it is reasonably applicable to the circumstances
of the Colony, the law of England must prevail, until it is abrogated or modified, either by
ordinance or statute’, basing this on Blackstone’s Commentaries.]
Foster J argues that ‘It has from antiquity been recognized that the most basic principle
of law or government is to be found in the notion of contract’ and considers that the
agreement to cast lots was ‘a new charter of government appropriate to the situation’.
Dismissing sceptics, Foster J asserts that it is clear that Newgarth’s government is
founded on some sort of voluntary charter of government to which the current
government can trace itself. The authority to punish is derived from the original compact
and no higher source; ‘what higher source should we expect these starving unfortunates
to find for the order they adopted for themselves?’
[Fuller has Foster J say ‘Sophistical writers have raised questions as to the power of
those remote contractors to bind future generations’. A ‘constitutional contract’ does not
operate the same as a civil contract, I would suggest.]
If it was proper that … ten lives should be sacrificed to save the lives of five
imprisoned explorers, why then are we told it was wrong for these explorers to carry
out an arrangement which would save four lives at the cost of one?
Foster J then proceeds to ‘hypothetically’ reject the above premises, and assumes that
the law applies to the explorers, despite their being somewhat removed from society.
This second grounds concerns the interpretation of the statutory provision and promotes
an approach to statutory interpretation identifiable as the ‘purposive approach.’
Foster J illustrates this with a fictitious example (Commonwealth v Staymore) where the
law was not applied because a defendant was unable to avoid breaking the letter of the
law. A second example (Fehler v Neegas) involved a clear typographical error, and the
court did not take a literal interpretation.
Foster J argues ‘there is nothing in the wording of the statute that suggests’ an exception
of self-defence: ‘The truth is that the exception in favour of self-defense cannot be
reconciled with the words of the statute, but only with its purpose.’
[Ironically in some jurisdictions this reasoning relating to self-defence does not hold up.
For example, in New South Wales there are clear statutory defences, including one of
self-defence: see Crimes Act 1900 (NSW) s 418.]
Foster J then goes on to discuss the reasoning behind the self-defence exceptions,
arguing that the law cannot deter killing in self-defence where a person’s life is
threatened. In such cases, the killer ‘will repel his aggressor, whatever the law may say.’
Foster J applies this reasoning to the explorers — the law does not create a significant
deterrent to persons faced with starvation.
Foster J discusses, briefly, judicial usurpation — where a court is accused of usurping
the legislature by giving a statute or provision a meaning not immediately apparent to the
casual reader who is unaware of the objectives it seeks to attain. Foster J acknowledges
without reservation that the court is bound by the statutes and ‘exercises its powers in
subservience to the duly expressed will of the Chamber of Representatives’, but defends
judicial interpretation by saying that
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
The stupidest housemaid knows that when she is told … to ‘drop everything and
come running’ [her master] has overlooked the possibility that she is at the moment
in the act of rescuing the baby from the rain barrel. Surely we have a right to expect
the same modicum of intelligence from the judiciary. The correction of obvious
legislative errors or oversights is not to supplant the legislative will, but to make that
will effective.
Foster J concludes that the conviction should be set aside.
Judgment of Tatting J
Tatting J begins by stating that in his duties as judge he is normally able to separate the
emotional from the intellectual reactions and decide cases based solely on the latter. His
Honour concedes that it is not possible in this case for him to do that, finding himself torn
between sympathy and abhorrence and unable to dismiss these considerations.
His Honour finds Forster J’s opinion ‘is shot through with contradictions and fallacies.’
Tatting J is critical of the ‘state of nature’ argument, finding that there is no clear basis for
the assertion that the explorers somehow escaped the jurisdiction. His Honour cannot
pinpoint when the supposed transition of jurisdiction occurred.
Tatting J also points out that the courts of Newgarth are ‘empowered to administer the
laws of that Commonwealth’, and questions from where the authority to decide cases
under the ‘law of nature’ could possibly be derived.
His Honour then examines the content of the ‘code of nature’ proposed by Foster J and
describes it as ‘odious’. Under the agreement, for example, Whetmore would not have
been able to exercise his right to self-defence in the cavern as it would be contrary to the
bargain.
Tatting J finds the notion that criminal law relating to murder cannot operate as a
deterrent where a person is faced with the alternative of life or death to be convincing.
Citing the fictitious case Commonwealth v Parry, Tatting J agrees that the interpretation of
self-defence provided by Foster J is supported, though that case ‘seems generally to
have been overlooked in the texts and subsequent decisions’.
Nevertheless, his Honour states that deterrence is not the only purpose. Orderly
retribution (citing Commonwealth v Scape) and rehabilitation of the wrongdoer (citing
Commonwealth v Makeover) are two examples: ‘what are we to do when it has many
purposes or when its purposes are disputed?’
But, conversely, the ‘taught doctrine’ in law schools is that ‘The man who acts to repel
and aggressive threat to his own life does not act “willfully,” but in response to an impulse
deeply ingrained in human nature.’ His Honour holds that in the case of the explorers,
they ‘acted not only “willfully” but with great deliberation’.
Tatting J then describes the two paths available: either to follow the ‘virtually unknown
precedent’ of the Supreme Court in Commonwealth v Parry that the crime of murder does
not sufficiently deter those whose lives are threatened, or to follow the conventional
doctrine of self-defence taught in law schools that it is not a wilful act, ‘but which, so far
as I know, has never been adopted in any judicial decision.’
Tatting J appreciates the significance of precedents relating to judicial correction of
legislative errors; but inquires as to whether the Court should be expected to disregard
or overturn the precedent in Commonwealth v Valjean where a defendant was convicted
for stealing a loaf of bread, despite the probability that he would starve.
While the circumstances do diminish the element of deterrence, it does not remove the
culpability of the explorers entirely. Tatting J is unwilling to create a new exception to
murder on the basis that the scope would need to be adequately defined for application
in future cases — Foster J’s proposed rule lacks any coherent and rational principle.
However, his Honour concludes that he cannot judge the case impartially. In Tatting J’s
view, an alternative charge would have been more appropriate. In the absence of an
alternative, no charge should be been brought: ‘It is to me a matter of regret the the
Prosecutor saw fit to ask for an indictment for murder.’
Tatting J withdrew from the decision of the case, ‘wholly unable resolve’ his doubts.
Judgment of Keen J
Keen J immediately sets aside two questions that, in his opinion, are not matters for the
court: that of executive clemency and that of morality. Executive clemency is a matter for
the Chief Executive, and the judiciary should not be seen to breach this separation of
powers. Keen J would pardon entirely the defendants on the grounds that they had
already suffered enough, but this is a remark made as a private citizen not a judge.
Nor does Keen J concern himself with questions of ‘right’ and ‘wrong.’ Judges are not to
apply their conceptions of morality, but to apply the ‘law of the land.’ Keen J
consequently dimisses ‘the first and more poetic portion’ of Foster J’s opinion, and
agrees that it contains an ‘element of fantasy’ revealed by Tatting J.
[Keen J’s sentiments here are somewhat similar to Lord Mustill’s in R v Brown [1994] 1
AC 212. That case involved consent to assault in the context of sadio-masochistic sexual
activity. The court held (in a 3-2 majority) that consent was not a defence to assault, with
Lord Templeman stating ‘Cruelty is uncivilised.’ Lord Mustill’s dissenting opinion was that
morality ought to be set aside and informed consent to private acts of violence will be
sufficient to escape conviction.’]
The sole question before us for decision is whether these defendants did … willfully
take the life of Roger Whetmore. … I should suppose that any candid observer …
would concede at once that these defendants did … .
Keen J states that the difficulties in deciding the case arise from a failure to separate the
legal and moral aspects of the case. His Honour criticises his fellow judges for shirking
their responsibility to abide by the word of the law; his Honour is determined to put
personal views aside.
Keen J is averse to Foster J’s a purposive approach to statutory interpretation that would
allow the court to justify a result it continues proper.
Keen J then provides a recount of the historical background of the judiciary’s position. At
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
‘judges did in fact legislate very freely [at] a time when the accepted principles of
political science did not designate with any certainty the rank and function of the various
arms of the state. … We now have a clear-cut principle, which is the supremacy of the
legislative branch of our government.’
Keen J turns his criticism towards Foster J personally, stating that his colleague does not
generally respect the restricted role of the judiciary. His Honour uses Foster J as a
prominent example of judicial reform of legislative enactments. The process of judicial
reform is described as being in three steps:
assigning or divining a single purpose for a statute (despite no single purpose
existing in any statute),
discovering that the legislator ‘overlooked’ or omitted something from the statute,
and
filling in the blank that is created as a consequence.
His Honour states that Foster J’s interpretation is flawed because Foster J is attempting
to include some purpose not revealed in the statute, but goes further than Tatting J. His
Honour does not believe the purpose needs to be explained any further than being a
‘deeply-felt human conviction that murder is wrong and that something should be done to
the man who commits it.’
Keen J believes that inquiry should not be directed towards the purpose of the statute,
but towards its scope; and likewise with exceptions. The actions of the defendants
clearly fall within the scope of the statutory provision.
A hard decision is never a popular decision.
Keen J firmly states ‘judicial dispensation does more harm in the long run than hard
decisions’ and concludes that the conviction should be affirmed.
Judgment of Handy J
I never cease to wonder at my colleagues’ ability to throw an obscuring curtain of
legalisms about every issue presented to them for decision.
Handy J holds the case to be one of the application of ‘practical wisdom’ not ‘abstract
theory’, and ‘one of the easiest to decide’. Government is ‘a human affair’ in which
people ‘are ruled well when their rulers understand the feelings and conceptions of the
masses.’
Of all branches of the government, the judiciary is the most likely to lose its contact
with the common man. … When a set of facts has been subject to [judicial] treatment
for a sufficient time, all the life and juice have gone out of it and we have left a
handful of dust.
Handy J describes the distinctions argued by lawyers between when rules and
principles ought or ought not to apply is a necessary evil; a consequence of formal
regulation. His Honour prefers wide discretion and dispensation for the judiciary, save for
a few fundamental areas (eg conduct of elections and appointment of officials).
We should take as our model, I think, the good administrator, who accommodates
procedures and principles to the case at hand, selecting from among the available
forms those most suited to reach the proper result.
The most obvious advantage of this method of government is that it permits us to go
about our daily tasks with efficiency and common sense.
Handy J discusses at length the publicity surrounding the trial, as well as indications of
public opinion (90% of respondents to a major poll believed the explorers should be
pardoned or given a token punishment). Handy J states that to preserve the ‘accord’
between the judiciary and public opinion, a declaration of innocence ought to be made.
Certainly no layman would think that in letting these men off we had stretched the
statute any more than our ancestors did when they created the excuse of self-
defence.
His Honour then acknowledges that his fellow judges will no doubt be horrified by the
suggestion of taking into account the ‘emotional and capricious’ public opinion.
They will tell you that the law surrounds the trial of a case like this with elaborate
safeguards, designed to insure that the truth will be known and that every rational
consideration bearing on the issues of the case has been taken into account.
Handy J lists four means of escaping punishment —
a determination by a judge that the accused has committed no crime,
a decision by the prosecutor not to ask for an indictment,
an acquittal by a jury, or
a pardon or commutation by the executive
— and states that within this framework, there should be no pretence that factual errors
or emotional/personal factors are excluded. His Honour provides jury nullification as an
example, and states that the jury would likely have acquitted regardless of any
instruction given to them, and that this was only prevented by the fact that the foreman
was a lawyer whose ‘learning enabled him to devise a form of words that would allow the
jury to dodge its usual responsibilities.’
His Honour points out that Truepenny CJ and Tatting J want ‘common sense’ to decide
the case. Tatting J wants it prior to the trial (at the prosecutor stage) and Truepenny CJ
wants it after the case (through clemency); neither want to have a personal part in it. His
Honour also points out that there does not appear to be any public support for the Chief
Justice’s suggestion of upholding the verdict and requesting clemency.
Handy J goes on to express doubt that the Chief Executive will grant clemency, citing the
Chief Executive’s conservative views, and his personal knowledge (gained in an indirect
way) that the Chief Executive is determined not to commute the sentence if the verdict is
upheld.
His Honour describes one of the first cases he presided over when he joined the bench,
PREFINALS [PHILOSOPHY OF LAW PREFINALS MODULE 7, 8 AND]
stating that a common sense approach applicable then was applicable now. He
concludes that, taking a common sense approach that considers his above discussion,
the defendants are innocent and the conviction should be set aside.
Conclusion
Tatting J was asked by the Chief Justice whether he wanted to reexamine his position,
but his Honour declined and affirmed he would not participate in the case.
The Supreme Court, divided evenly, affirmed the conviction. Fuller provides no further
details as to the outcome.
MODULE 4 CREAC
Analysis - CREAC
There is no one way to approach your legal analysis. I strongly recommend the approach outlined below, referred to
as CREAC, whereby you start your analysis of the legal issue by telling the reader the conclusion that you have
reached and then proceed to explain to the reader your rationale for how you reached that conclusion.
CREAC (Conclusion, Rule, Explanation of Rule, Analysis, Conclusion) is a common approach to organizing analysis of a
specific legal issue. CREAC begins with your conclusion. That is, you will tell the reader your opinion on the legal
issue from the outset, and you will then proceed to demonstrate your reasoning.
IRAC (Issue Rule Analysis Conclusion) is another common approach to legal writing, where, instead of starting with
your conclusion, you merely state what the issue is. I view IRAC as being more akin to a mystery novel than an
informative memo because, instead of coming out and disclosing your conclusion from the outset, you are keeping
the reader in suspense until the end of your section. But we are not writing mystery novels. We are instead just
trying to communicate our opinion in a direct, easy to understand fashion. By stating your conclusion from the start
of your section, your reader will better understand your analysis and why you reached that conclusion.
One CREAC per element/sub-issue. If your legal issue includes a four-part rule, then you should probably have four
sub-sections within your Discussion section, one for each element of the rule. Each one of those subsections will be
its own CREAC.
CREAC Structure. As mentioned above, CREAC stands for:
Conclusion
Rule
Explanation of Rule
Analysis
Conclusion.
In terms of actually laying out your CREAC analysis, I recommend the following:
Heading (Conclusion): Use your Conclusion as the heading to your subsection. Remember, this Conclusion should
only speak to the particular sub-issue that you are analyzing. Thus, if your memo addresses whether your client
could be held liable for a tort, your overall conclusion might be, "Defendant Jones can be held liable for the injuries
that the Plaintiff suffered as a result of the automobile accident." However, if you divided your memo into three
sections to address the three main elements of the tort i.e., (1) duty, (2) breach of duty, and (2) damages, then your
heading would be limited to the specific element that you are analyzing within that section. For example, your
Conclusion to Section one might read: "Defendant Jones breached his duty to provide safe travel to the Plaintiff by
driving the school bus under the influence of a narcotic."
First Paragraph (Rule, Explanation): The first sentence of the first paragraph of your section should clearly state the
relevant Rule. Remember, as with the Conclusion, this Rule should speak only to the specific sub-issue that you are
analyzing (i.e., "To hold the Defendant liable, a jury must find that Defendant Jones breached his duty of care to the
Plaintiff."). Following your single sentence rule, your second sentence should provide the reader with an Explanation
of the Rule, which could be anywhere from a single sentence to many sentences. Ideally, your Explanation would
include a list of factors/considerations that you plan to discuss in the remainder of your subsection when analyzing
the issue. If you include such a list, then you should organize the remainder of your subsection according to that list
of factors. For example, "In making this determination, the court will consider (1) the amount of hydrocodone that
Defendant Jones consumed, and (2) whether Jones was aware of the impact that the narcotic would have on him
while operating a school bus."
Analysis Paragraphs: Following your introductory paragraph, you should separate your Analysis into individual,
thematic paragraphs, hopefully corresponding to the list of factors that you articulated in your Explanation of the
Rule above. In each of these paragraphs, you should, if possible, start with a topic sentence that indicates the topic
that you will be discussing within that paragraph, followed by a discussion of relevant case law, which you will
compare and contrast to your client's circumstances.
Conclusion: Restate your Conclusion at the end of the subsection in a one or two sentence paragraph.
SPECIFICS
Conclusion (Heading)
C (Conclusion). The first sentence of your analysis/CREAC is your Conclusion.
1. Your Conclusion should only be a single sentence.
2. Your conclusion should only address the sub-issue at hand. That is, when stating the Conclusion to a subsection, you are
not stating a broad conclusion that answers your Question Presented (unless the issue does not feature sub-rules). Instead,
you are only providing an explanation of whether the facts at hand satisfy the elements/sub-rule at issue in the subsection
itself.
3. In your Conclusion, use specific language from the corresponding legal rules (often referred to as "terms of art") or
standards to make the link between your Conclusion and the law obvious to the reader.
4. If possible, incorporate a few salient/relevant facts into your Conclusion that relate to the particular sub-issue at hand.
However, do not allow your Conclusion to become endlessly long.
5. I recommend that you include your Conclusion as your heading to the subsection. In that way, the reader will
immediately understand the issue that you are addressing in the subsection and the conclusion that you are drawing
regarding that issue. The benefit of drafting clear Conclusions that include salient facts and using those Conclusions as
subsection headings is that the reader will literally be able to skim through your headings in a matter of seconds and discern
the basis of your reasoning. Strongly worded Conclusions/headings will therefore make your writing all the more
compelling.
6. This should be obvious, but be sure to frame your Conclusion as such - a conclusion, not an issue statement. You are
not trying to "hide the ball" from the reader. If you word your heading as an issue statement, then you leave the reader
wondering what the answer to the issue statement is, requiring the reader to work and exert more effort to get the answer.
Lawyers do not have a lot of time, so do not make them work more than necessary--just give them your Conclusion. The
lawyers--professors, supervising attorneys, judges, or whomever--may not agree with your conclusion, but they will
appreciate you being straight forward.
7. You could include a "because" clause to explicitly demonstrate why you reached the particular conclusion.
Sample Conclusion/Sub-Heading:
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I. A court would likely find that Petersen's PPI System constituted a trade secret.
3. Once you have identified the relevant factors, present the factors in a list to make it clear to the reader what you will
II. A court would likely find that Dimitri acquired Ms. Petersen's trade secret through improper means. be analyzing throughout the subsection. I recommend a numbered list to draw attention to the factors that you plan to
discuss and to ensure that the reader understands that the factors are distinct form one another.
III. A court would likely find that Dimitri used Ms. Petersen's trade secret without consent.
4. Most importantly, once you have laid out factors in your Explanation, proceed to discuss each factor in separate
Analysis paragraphs in the same order that you listed them in your Explanation. At the start of each of those Analysis
paragraphs, include clear topic sentences to alert the reader of the factor that you are discussing, using common language
Rule in both your Explanation and your topic sentences at the start of your Analysis paragraphs.
R (Rule). Your Rule is a succinct statement of the law governing the specific legal element at issue in the subsection.
Sample Explanation:
(Explaining the Trade Secret sub-rule from Rule)
1. Your Rule should be the first sentence of your first paragraph in the subsection.
In determining whether Ms. Petersen's PPI System is a trade secret, a court will weigh the extent to which (1) the PPI
2. Identifying your Rule is easier said than done. System was known outside of PPI, (2) the PPJ System was known to employees within PPI, (3) Ms. Petersen attempted
to guard the PPI System's secrecy, (4) PPI increased in value by having the PPI System remain secret, (5) Ms. Petersen
As a preliminary matter, there is the Macro-Rule, the big picture that governs the larger issue that you are addressing--the expended time and money in developing the PPI System, and (6) other fitness businesses would need to expend time and
issue that you introduced in your Issue Statement (e.g., battery). This Macro-Rule is what you explained briefly in your money to acquire or develop a similar system. Porter Industries, Inc. v. Higgins, 680 P.2d 1339, 1341 (Colo. App. 1984).
Umbrella paragraph. It is the larger Rule that controls the area of law. Courts balance facts relating to each of these factors, and no one factor is dispositive of whether a trade secret could or
could not exist. Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1132 (l0th Cir. 2003).
However, most Macro-Rules are made up of a number of Mini-Rules or Elements--smaller rules that together comprise the
larger rule, like ingredients in a cookie recipe. In each sub-section of your Discussion, you will analyze one element at a NOTE: In the above example, the Explanation is based on the relevant case law and is quite detailed. Based on the advice
time. Thus, like your Conclusion, your Rule is not the rule that governs the central issue that you are addressing in the above, you would model the remainder of your discussion in this subsection to mirror these factors, doing so by including
memo as a whole (unless your memo only has a single analysis section). Rather, your Rule is actually a sub-rule that only subsections or paragraphs that deal with each of these factors one-by-one.
speaks to the element at issue in the subsection at hand

3. Do not overstate or understate your rule. One of the most common pitfalls for legal writers is to end up overstating
the law. For example, if your overall test is a balancing test, and no single sub-issue is dispositive, then write, “The court
will consider whether the plaintiff . . . .” But if the rule is dispositive, meaning that a plaintiff MUST satisfy the element,
Analysis
then make that clear by writing something to the effect of “To succeed with this claim, a plaintiff must prove . . . .” If you
over- or understate the rule, then your reader will not properly understand the law.
A (Analysis). Following your opening paragraph to your subsection are your Analysis paragraphs.
4. Be sure to cite legal authority in support of your rule. Without citing some sort of legal authority, your Rule may as
well be, quite literally, your Rule, and not that of the of law. Citing case law assures your reader that you are not just 1. Follow the Factors that You Presented in Your Explanation. The easiest way to ensure that your Analysis section is well
making stuff up, which lawyers at times attempt to do. organized and compelling is to follow the road map that you should have provided in your Explanation. If you identified
relevant Factors in your Explanation, then simply discuss each of those factors, one by one in separate paragraphs (or
subsections) in your Analysis section. For this reason, you should make sure that your Explanation of your Rule effectively
lays out the specific factors that you will address in your Analysis.
Explanation of Rule
E (Explanation). Your Explanation, which immediately follows your Rule, should explain relevant nuances of the law and 2. Rule-based reasoning. Another benefit to organizing your Analysis according to the factors that you identified in your
the various factors that a court will likely examine when considering the sub-issue. Explanation is that you will then naturally organize your writing by factor or theme, according to the nature of the law, and
not simply by case. Legal writers often refer to this thematic approach as "rule-based reasoning." In essence, using rule-
1. Try to keep your Explanation as brief as possible, only including further discussion of the Rule that is necessary for the based reasoning, you will analyze the Rule based on the legal factors or elements that courts consider when making
reader to understand the nature of the law. Your Explanation of the Rule can be as short as a single sentence and should determinations based on that rule. Once you have identified those factors and chosen the factors that you wish to discuss,
probably be no more than three to four sentences, unless the issue is particularly complex and warrants a lengthier you will analyze those factors one-by-one. Writers who do not consciously adopt the rule-based reasoning approach often
discussion. analyze the issue at hand by simply discussing relevant cases one-by-one, often discussing one case per paragraph. That is
not a terrible approach, but it makes your Analysis seem more anecdotal and shallow - based on a few select cases rather
2. Use your Explanation to identify the factors that a court would likely consider when analyzing the sub-issue at hand. than on the intricacies of the law.
In this way, your Explanation is like a mini-Umbrella, providing the reader with a road map for this particular sub-rule.
Identifying the relevant factors that underlie your sub-rule is not always easy. Sometimes the law identifies these factors 3. Paragraphing or Subsections. Try to discuss each one of the factors identified in your Explanation in individual
for you--perhaps because the statute at issue contains discrete requirements. More often, you must identify the relevant paragraphs. If you feel that you have too much to discuss, then you might consider breaking your discussion out into further
factors at issue by engaging in extensive research. Courts will often articulate what factors control an issue, but often subsections. It is fine to have multiple layers of subsections, but it can get confusing to the reader.
times different courts will use different factors. Your job is to distill what factors you think are most relevant and to inform
the reader accordingly.
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4. Organizing Your Analysis Paragraphs. You should begin each analysis paragraph with a topic sentence that clearly
identifies the relevant theme or factor. Follow the topic sentence with a discussion of controlling case law. Then apply
that case law to your facts by discussing the relevant similarities or differences between the case law and your case.
Whenever possible, you should use more than one case per theme as it makes your argument more convincing, but you will
sometimes find that you only have one case to discuss for a given theme/paragraph, which is fine. Thus, as a general rule
for organizing your Analysis paragraphs, as mentioned above:
a. Topic Sentence. Begin with a topic sentence that identifies the theme of the paragraph;
b. Precedent Case Law and Other Relevant Authority. Following the topic sentence, briefly discuss precedent case law
relating to the theme at hand; and
c. Your Facts. After discussing precedent case law, usually within the same paragraph, discuss the facts from your case
that relate to the topic addressed within the paragraph.
5. Topic sentence. Begin each Analysis paragraph with a clear topic sentence, and, in each paragraph, only discuss facts
and cases that relate to that topic and that topic alone. It is impossible to stress this latter point enough. If you stray from
the topic at hand, your writing will quickly become confused and less convincing.
6. Precedent case law. After your topic sentence, discuss relevant case law to demonstrate how courts have previously
treated the issue, preferably in situations relatively similar to yours. Be sure to:
a. Cite to cases that address the specific legal sub-issue at hand, preferably with fact patterns that are relatively similar
to yours,
b. Discuss relevant facts from those cases - the facts that pertain to the sub-issue that you are discussing in the
subsection, and
c. Include the holdings of each case that you discuss so the reader knows which way the court decided based on the facts
from that case, which will allow the reader to compare each of those cases to your case.
d. Model format to discuss cases. I have found that the easiest way to succinctly discuss a case in a single sentence is
with the following format: In [case name], the court held [holding as to relevant legal issue] because [statement
of facts that caused the court to rule as it did] (e.g., "In Smith v. Jones, the court held that the defendant should have
known that his conduct would cause the plaintiff injury because the plaintiff asked the defendant to cease threatening her
as the threats were causing her severe distress."). You may of course analyze cases using multiple sentences, and you often
should do so. However, the more succinct you are, the easier it is for the reader to compare the cases that you are citing
to the facts of your own case that you are analyzing.
As you feel more comfortable, you can combine your discussion of two cases into a single sentence, or you can combine
your discussion of a case with your analysis of your facts all in a single sentence. However, when you are just getting
started, try to stick to one case per sentence. Additionally, you can eventually experiment with squeezing analysis into
crafty citations by using effective parentheticals.
NOTE: While I recommend that you first discuss controlling case law and then discuss your facts, you are welcome to try
reversing that order.
7. Your client's facts. After you have introduced precedent case law, compare and contrast your client's facts to the facts
and holdings that you presented from those cases to demonstrate your client's likelihood of success. The aim is for you to
compare/analogize and contrast/distinguish your facts from those of precedent cases to demonstrate to the reader which
way the court is likely to hold.
8. Be Sure to Compare and Contrast. You will benefit from discussing cases where the court ruled favorably on an issue, as
well as cases where the court ruled unfavorably.
-Compare/analogize. Compare your facts to the cases where the court ruled favorably by showing that your case is
similarly strong, perhaps even stronger.
-Contrast/distinguish. Contrast your facts to the cases where the court ruled opposite from what you are arguing by
showing that your case is different and will therefore be more likely to receive favorable treatment from the courts.
9. Spectrum of cases. I like to think of precedent cases on a spectrum that ranges from definite loser to definite winner.
Once you have collected enough cases to flesh out the spectrum, you should determine where in that case law spectrum,
based on your facts, you case fits. Discuss the case law in comparison to your case to demonstrate the likelihood of success
for your client, analogizing to the cases where the court ruled favorably and distinguishing from those where the court ruled
unfavorably.
X-----------------x------------------X
Definite Your Definite
Loser Case Winner
10. Repeat. Repeat this process for each additional theme/factor that you discuss within the subsection. Remember, each
paragraph should include a topic sentence that clearly articulates the theme you are discussing. And, most importantly,
stick to that theme throughout the paragraph. Do not stray into topics that you should discuss elsewhere.
11. Paragraphing. Try to keep your paragraphs under one double-spaced page. Additionally, if your analysis is confined to a
single, concise paragraph, you should combine it with your Rule, Explanation, and second Conclusion to form a single
paragraph, rather than separating your CREAC into three separate paragraphs.
Sample Analysis:
(Trade Secret hypothetical)
NOTE: Here, the analysis is broken down into a subsection to correspond to the first factor listed in the Explanation of
the Rule. The analysis is organized as a mini-CREAC, with (1) a conclusion used for the sub-heading, (2) a mini-rule/topic
sentence used as the first sentence of the subsection is mini-rule, (3) followed by a brief elaboration/explanation of the
rule, (4) followed by the core analysis - first case law discussion of the factor and then discussion of the client's facts that
relate to the factor (which you can repeat as appropriate), and (5) a repetition of the mini-conclusion.
Example 1:
A. Ms. Petersen's PPI System was not known outside of her business.
In determining whether Ms. Petersen's PPI System is a trade secret, a court would consider the extent to which
information pertaining to the System was known outside of her business. See Rivendell Forest Products, Ltd. v. Georgia-
Pacific Corp., 28 F.3d 1042, 1046 (10th Cir. 1994). Even where alleged trade secrets include elements that are known
outside of the business, courts have still found that such methods could constitute trade secrets. Id. In Rivendell Forest
Products, Ltd., plaintiff designed a database that generated on-demand, customer-specific statistics. Id. at 965-66. The
appellate court reversed the trial court's ruling that the database could not be a trade secret because it had publicly known
elelnents and held that, even if plaintiff s database contained publicly known elements, plaintiff's integration of such
elements in a non-publicly know methodology gave plaintiff a competitive advantage and could therefore constitute a trade
secret. Id. at 1046. In Ms. Petersen's case, although her client assessment method is known to current and former
employees, this technique, in conjunction with the PPI Program, is a methodology that is not known to the public.
Furthermore, courts have viewed evidence that a plaintiff is the exclusive user of a business method as evidence that the
method is not publicly known. See Harvey Barnett, 338 F.3d at 1131. The Harvey Barnett court found the fact that no other
aquatic organizations taught plaintiff's aquatic instruction program compelling in determining that the progranl was not
publicly known. Id. In Ms. Petersen's case, the requests by fitness professionals for Ms. Petersen to present her methodology
at public conferences indicates that her PPI System is not known among her competitors.
NOTE: In the example above, after introducing the topic/mini-rule, the writer first discussed one case in comparison to
her client's facts, and then discussed a second case, also in comparison to her client's facts.
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Example 2:

C. Ms. Petersen took sufficient precautions in guarding the secrecy of the PPI System.

In determining whether Ms. Petersen's PPI System is a trade secret, a court would consider the extent to which she took
precautions to protect the secrecy of her PPI System. See Network Telecommunications, Inc. v. Boor-Crepeau, 790 P.2d 901,
902 (Colo. App. 1990). The Network Telecommunications court indicated that reasonable efforts may consist of advising
employees of a trade secret's secrecy and sharing information with employees only on a need-to-know basis. Id. A plaintiff's
effort to patent or copyright a purported trade secret may also be evidence of precautions taken to guard secrecy. See
Mineral Deposits, 773 P.2d at 607; Gates Rubber Company v. Bando American, Inc., 9 F.3d 823, 830 (10th Cir. 1993). In
Mineral Deposits, plaintiff had applied for a patent on its mining equipment. 773 P.2d at 607. In Gates Rubber, plaintiff
copyrighted its computer program. 9 F.3d at 830. Both courts found that plaintiffs could have trade secrets. Mineral
Deposits, 773 P,2d at 607; Gates Rubber, 9 F.3d at 830. In Ms. Petersen's case, Ms. Petersen provided Ms. Dimitri with
information about the PPI System only on a need-to-know basis, Ms. Petersen advised Ms. Dimitri of the system's secrecy by
telling Ms. Dimitri about her plans to copyright the system so that no other fitness centers could use it, and Ms. Petersen is
working with an attorney to procure copyrights and patents on the PPI System. These facts demonstrate that Ms. Petersen is
actively guarding the PPI System's secrecy.

A court may weigh the fact that Ms. Petersen has not had her employees enter into confidentiality or noncompete
agreements against her. See Hertz v. Luzenac Group, 576 F.3d 1103, 1112 (10th Cir, 2009). In Hertz, the court noted that
plaintiff's employee confidentiality agreements enhanced plaintiff's claim that its manufacturing process was a trade secret.
Id. However, the court explained that there always are more security precautions that can be taken, just because there is
something else that could have been done does not mean that the efforts were unreasonable under the circumstances." Id.
at 1113. Thus, PPI's lack of confidentiality agreements may detract from Ms, Petersen's trade secret claim, but should not be
dispositive in determining whether or not the PPI System could be a trade secret.

NOTE: In the example above, the writer again starts with a topic sentence/mini-rule, then more discussion/explanation
of the topic, followed by specific reference to prior case law and discussion of her client's facts. Additionally, the writer
includes a second paragraph that features "counter analysis," which mentions one of her client's weaker factual points, but
concludes with the reassurance that the weakness is not fatal.

Conclusion (2nd)

C (Conclusion). At the end of each subsection, you should include a very brief Conclusion, which more or less restates the
Conclusion you used at the start of your section. This should typically be its own paragraph and should be no more than one
to three sentences. However, if your Analysis section is a single paragraph, then you may simply include the Conclusion as a
single sentence at the end of the paragraph.