on August 20th, 2017 by - Comments Off on THE MORALITY THAT MAKES LAW POSSIBLE

This is the story of the unhappy reign of a monarch of Rex: also known by Dentist Calgary

Eight Ways to Fail to Make Law


  • Rex was resolved to remedy a bad situation: but, alas, he fails.
  • First act was dramatic: announced repeal of all existing law (to get clean slate) But making new laws was tough, and strained him to the breaking point.
  • So gave up on making code, and said, he would be judge over any disputes that may arise, in hope that case by case he would work out a system of rules that could be made into a code.  Unfortunately, after 100s of decisions, could not detect any pattern.  Any attempt led to even more confusion and threw his meagre powers of judgment off balance.
  • Following that Fiasco, Rex took fresh start, and took lessons in generalisation and tried to make code again.  Not 100% confident, said that there is code but would still sit as judge, but code was state secret, only known to him.  Subjects did not like this.


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Disability Discrimination

on May 26th, 2017 by - Comments Off on Disability Discrimination

Statue Disability Discrimination Act 1995 (RB 165)

Principle It’s equality of opportunity and not treatment whereas with Sex and

Race D it’s about equality of treatment, provisional records from abogados de accidentes Hollywood

Checklist – key steps to go through addressing whether DD has occurred under the


1. Eligibility? -employee must have a disability

Age irrelevant

no continuous service needed

at present only applies to employers who have more than 15


2. Does employee fit the definition of a disability?

Defn taken from Disability Discrimination Act 1995

 Def: ’Physical or mental impairment which has a substantial, long term and

adverse effect on his ability to carry out normal day to day activities.’

Physical impairments = MS, cancer, blindness and arthritis, deafness

Mental impairments = clinically recognised disorders– to be sure check the World

Health Organisation (WHO) International Classification of Diseases which will say

one way or the other

Exclusions = addictions to booze or drugs, hay fever, correctable sight problems,

pyromania, cleptomania

 Make sure it’s the normal activities affected. Only has to affect one of the day

to days activities, as listed on p167 RB, they include mobility, shopping,

cooking, walking, speech, ability to lift etc. Does NOT include working !!!

IGNORE drugs taken – the condition may not be a problem now but could do soon or

could get gradually worse

Vicary v BT Plc, ET stated that Mrs V’s impairments were not everyday activities ie

preparing veg, carry pans of water etc, and that she should learn to cope with her

disabilities. ET systematically went through her tasks and dismissed them.

Vicary has since been overruled because a tribunal must ignore lifestyle

adaptations such that they may, in fact, manage reasonably well and concentrate on

what the applicant cannot do or only do with difficulty rather than on things they

can do. Ie, e/ee has managed to do something doesn’t count even though they’ve

worked round the diability

A substantial effect is one which is more than minor or trivial, medical evidence will

usually play a vital role in DDA cases. Will be assessed by the ET on the facts.


Progressive conditions (eg cancer, MS HIV etc) do not have a substantial adverse

effect if the condition is likely to result in such an impairment. However they need to

have some effect, therefore once a person with a progressive condition experiences

symptoms which have any effect on his normal day to day activities, he will fall

within the definition of disability, so long as the effect of the impairment is likely to

become substantial in the future.

Severe disfigurement will be deemed to have substantial effect on a persons day to

day activities.

Long Term = The effect of an impairment is long term if it has lasted at least 12

months, the period for which it lasts is likely to be at least 12 months or it is likely to

last for the rest of the life of the person affected.

The tribunal in Goodwin emphasised that each of these conditions should be

addressed, but that at the same time the tribunal should consider the whole picture.

3. Is there an unlawful act?

ie, refusing to recruit, promote or dismissal due to disability (same as


4. Is it less favourable treatment for reason related to disability?

Need to compare them to other people to whom the disability does not apply

If so, is it justified?

Employer discriminates if he: (quote the 4 points below as one

sentence in the EXAM)

 Treats him less favourably;

 for a reason relating to his disability;

 than he treats others to whom that reason doesn’t apply.

 and he cannot show that the treatment in question is justified.

Eg – treatment of typist denied job because speed is too slow as result of arthritis in

her hands is compared to somebody who hasn’t got a disability ie the average typist.

Not very fair or comparable.

 Treats him less favourable………..

 For a reason related to his disability (eg slow typing, absence for doctors

appointments, inability to do job at workstation – all because of disability)

 Than others to whom the reason doesn’t apply………..

 Ie – detrimental treatment connected to disability is unlawful unless justified.

What is the test for justification? is it material and substantial (major part of the

job) to discriminate? Are employers justified in

needing fast typists?

5. Is there a duty to make reasonable adjustments?

If so, can employer justify not doing? To be outlawed in

October 2004


6. Could any less favourable treatment at 4 now be justified if the

adjustment at 5 had been made? See below

2 nd type of discrimination – failure to make adjustments (from 6 above)

Employer discriminates if he:

 Fails to comply with a duty to make reasonable adjustments imposed on him

in relation to the disabled person:

o Duty arises if employer’s working arrangements put the claimant at a

substantial disadvantage, and it is the employer’s duty to take such

steps as is reasonable to prevent the disadvantage.

o Unless justified because it’s material to the circumstances and


 Finally:

 If you should have adjusted, review any earlier findings of less favourable

treatment – would it still be justified?

Are adjustments reasonable? Is it cost effective, practical to implement adjustments?

Cost shouldn’t be so much an issue as the employer pays the first £300 then the

g’ment pay anything up to 80% of the rest of the bill.

Practical Points: E/er not usually expected to take a hit on productivity to make

reasonable adjustments

Disability discrimination damages can be combined with UD damages as well. The

highest award in the UK has been £104,000


When may deductions be made from wages lawfully ?

on May 26th, 2017 by - Comments Off on When may deductions be made from wages lawfully ?

The basic right given to employees by Part II of the ERA 1996 is stated in s 13, whereby an employer must not make any deduction from wages unless:


(1) it is authorised by statute (eg Pay As You Earn (PAYE) and national insurance);


(2) it is authorised by the worker’ s contract; or

(3) the worker has previously signified in writing his consent to the making of it.


A deduction is defined in s 13(3) as follows:


‘ Where the total amount of wages paid on any occasion by an employer to a worker

employed by him is less than the total amount of wages properly payable by him to

the worker on that occasion … the amount of the deficiency shall be treated … as a

deduction …’


Therefore, if the total amount paid to the employee is less than the total amount properly payable (which will not include pure errors of computation), it will be a deduction.


Non-payment of a sum due can amount to a deduction, provided that the sum relates

to a period of employment.  Non-payment of wages in lieu of notice after termination

of the contract does not therefore fall under the ERA 1998 (Delaney v Staples [1991]

IRLR 112).


A unilateral reduction in wages can amount to a deduction, as can a non-payment of

commission or holiday pay.


An employer may also make deductions where those deductions are covered by one of the exemptions in s 14 (see 1.10.3).


If the employer wishes to make any deductions from an employee’ s wages, for example penalties for substandard work or to recoup ‘ till shortages’ from employees handling money, authority to make the deduction should be specified in the contract.


retail employment     For workers in this field, deductions for cash shortages or stock

deficiencies must not, except for the final payment of wages, exceed one-tenth of the employee’ s gross wages (ERA 1996, s 17). Take for example the collapse of the Notary public London firm


Loans              If the employer wishes to make deductions of a type not provided for in the  contract, for example, if the employer makes the employee a loan to be repaid by deductions from wages, the employee must give his written consent to the deduction. (In the example given, this would usually be done in the loan agreement.)


Definition of ‘wages’?


The ERA 1996 prohibits deductions from ‘ wages’ and s 27 of ERA 1996 defines

wages as           ‘ any sum payable to the worker by his employer in connection with his

employment … including any fee, bonus, commission, holiday pay or other

emolument referable to his employment, whether payable under his contract of service or otherwise’ .




on May 24th, 2017 by - Comments Off on GROUNDS AND FORCE OF LAW
  • Dworkin on our concept of law: Legal argument takes places on a plateau of rough consensus that if law exists it provides a justification for the use of collective power against individual citizens or groups.
    • General conceptions (like 3 mentioned earlier) begin by some broad thesis about whether and why past political decisions do provide such a justification. ( for example the cornerstones from abogados de accidentes)
      • Powerful objection?: There is difference between what law is, and what judges do, Austin and Hart recognised this because propositions of law are factual.
    • This objection calls for important clarification: across field of further controversy there is an underlying agreement. We have, even in flourishing legal system, there is an exceptional case where coercion does not stand because powerful counter-argument available.  This must exist.  This leaves connection of law and coercion at abstract level.  But fully theory needs more concreteness.
    • Full theory includes two main parts : speak to both GROUNDS of law and FORCE of law (the relative power of any true proposition of law to justify coercion in diff sorts of exceptional circumstance).
    • But this complexity poses practical problem: we all have attitudes toward law along with rest of our general social knowledge. We find it difficult to achieve distance from our own convictions necessary to examine these systematically as a whole. We can only do it one by one, step by step and not mingle and mix when we look at discrete parts.
    • Academic tradition focuses on grounds, silent on force.
    • Now we can reply to the above objection: Conceptions of law (theories about grounds of law) commit us to no particular or concrete claims about how citizens should behave or judges should decide cases. Remains open that though law is for Elmer, circumstances of case are special so judge should not enforce law.
    • Note that process of abstraction, allows to discuss grounds of law, abstracting from tis force, also allows political philosophers to argue in other directions. Ie, we can ask the complementing question of jurisprudnce “Given the sort of thing we call and accept as law, when can we morally be free to disobey” ?   — of course, we need some sort of agreement on grounds to perform this abstracting.
      • “But if many people in any community disagreed THAT far about grounds – if shared no paradigms – civil disobedience would be the least of their problems.”



  • “The law is the law. Not what judge thinks.” this is view of laymen and legal conservative. This slogan translates into “collective force be used gainst individuals only when some past political decision has licensed this explicitly in such way that competent lawyers and judges all agree about what decision was.
  • Conventionalism shares slogan, but interpretation it builds is more subtle in two ways:
    • it explains how content of past political decisions can be made explicit and non-contestable (in america it is settled that law made by congress). So legal practice is matter of respecting these conventions.
    • Corrects layman’s view that there is always law to enforce. Judge must arrive at decision, and no party entitld to win. And judges decisions then turn into convention for the future.
  • Obvious similarities between conventionalism and positivist semantic theories. BUT, important difference: semantics argue that the description of law given is enforced by very vocabulary of law, so to say anything else would be self-contradiction. But, conventionalism uses interpretive method. It says that this way of describing what lawyers and judges do is most illuminating account, and thus best guide to what they should do.   THUS, conventionalists do not deny that people who think otherwise cannot possibly mean what they say.
  • Conventionalism makes two post-interpretive, directive claims:
    • Positive claim: judges must respect the established legal conventions of their community except in rare circumstances. Doesn’t matter what judge thinks, must apply e.g. Statute in britain.
    • Negative claim: There is no law, no right flowing from past political decision apart from law drawn from those decision by techniques that are themselves matters of convention, and therefore that on some issues there is no law either way. — here, judges must use disc power.

General Reading

on May 22nd, 2017 by - Comments Off on General Reading

Primary texts

  • • Dworkin Taking Rights Seriously, esp. Chs. 2–5:
  • Dworkin says that a descriptive account of law is useless: It only looks at the law from the external perspective and is incapable of truly understanding the law from the POV of participants. NB The descriptive account of Hart DOES take IPOV, as Hart points out in his postscript.
  • Dworkin states instead that useful theories of law must be ‘interpretive’ – one must

adopt an interpretive attitude.  This involves inter alia bringing political convictions to bear on the relevant data.  It follows that legal theory must always be politically committed.  There is no room for value-free theorizing of the kinds set forth by Austin, Kelsen or Hart.

Hart responds that the way participants respond to the law can be recorded as a fact within the descriptive approach: ‘description may still be description, even when what is described is an evaluation’.

  • Dworkin also criticizes positivism’s claim that value-free theories of law can exist.  He says that they may be denying the need for the interpretive attitude because they say that we know what law is simply by attending to the way in which people use the word ‘law’ – Dworkin calls this the ‘semantic sting’.
  • This would mean that when people disagree about the law on any topic they are disagreeing about questions of linguistic usage, and that would be such a silly view that Dworkin charitably recasts positivists as theorists who do take up the interpretive attitude, but the wrong one – conventionalism.
  • Integrity: Why don’t we have checkerboard laws i.e. those that treat people in the same situation differently. E.g. why don’t we make abortion legal on even years and illegal on odd years, if the population is evenly split as to legalisation, and each person has equal impact on the system? The checkerboard would surely be “fair” as it allows the views of all people to be taken into account and reaches a compromise. Similarly it is just, since a person who is opposed to abortion may consider a checkerboard solution more just than full legalisation. He says the reason is “integrity”- i.e. that the law must take a decision and justify it on the basis of the principles that it considers correct. A checkerboard compromise undermines the principles for taking a particular decision, which integrity demands.
  • NB Dworkin says that the point of law is to justify coercion. NO: Hart’s postscript points out that much of law is not concerned with coercion e.g. power-conferring rules.


Dworkin’s Critique of Positivism: Judicial Role, Interpretivism, and Law as Integrity

on May 22nd, 2017 by - Comments Off on Dworkin’s Critique of Positivism: Judicial Role, Interpretivism, and Law as Integrity

Introduction to Critiques of Positivism

Positivism has been identified with the thesis that the validity of individual laws depends upon their sources and not their merits. A particularly powerful model for this approach is provided by Hart’s conception of every legal system having a ‘rule of recognition’, establishing criteria by which standards can be identified as legal standards. The rule of recognition of a particular legal system identifies the sources of law which are valid in that system (legislation, precedent, …), and laws are valid because they either belong to one of those sources or are validated by other laws which do (e.g. delegated legislation).

The idea that the validity of a legal standard depends upon its sources rather than its merits is not uncontroversial, since many legal standards in both private and public law seem to derive at least part of their force from their intrinsic merits (e.g. no one is to profit from their own wrong, no one is to be a judge in their own cause). How is positivism to account for the status of such standards, often described as ‘legal principles’? Dworkin claims that positivism cannot, and that principles show that law is not necessarily source–based.

Many positivists, on the other hand, think they can, since laws can specify moral conditions for the validity of other legal standards (e.g. inhuman and degrading treatment, unconscionable conduct). But does this deal adequately with the problem raised by the existence of principles?

So far as Dworkin’s critique of positivist accounts of validity goes, the original argument merely claims that the positivist account is inadequate. Which leaves the question, what alternative account of legal validity is there? This is the challenge to which Dworkin responded in his work on ‘hard cases’.

Dworkin argues for a much more liberal conception of the scope of legal considerations than positivists. For Dworkin law encompasses not only court decisions and legislation considered discretely, but the totality of law seen as an internally coherent and consistent set of individual rights and duties. Law has to be seen as an enterprise with underlying values which inform its content and interpretation.

But does this work, or does it make any type of consideration which a court relies upon in reaching its decision a ‘legal’ consideration? Does it obliterate the idea that courts rely on both legal and non–legal considerations in deciding cases?

Dworkin and Interpretative Approaches to Law

To resolve legal disputes, courts often need to interpret sources of law such as constitutions and statutes and precedents, and they need to interpret the communications by which parties try to order their own and others’ legal rights and duties (such as leases and wills). Is interpretation a technique for dealing with uncertainties and controversies as to the effect of such legal instruments? Or does it take interpretation to answer any question of law? Is legal reasoning a form of interpretation, or is it a form of reasoning that often requires interpretation?

Ronald Dworkin argues that law is an ‘interpretive concept’, by which he means that any true statement of law is true because it follows from the best interpretation of the legal practice of the community. We will consider Dworkin’s claim that all questions of legal rights and obligations (in what he calls ‘easy cases’ as well as what he calls ‘hard cases’) are to be answered by interpreting the community’s legal practice in a way that shows that practice (as well as it can be shown) to respect the rights of the members of the community.



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