LEGAL THEORY / JURISPRUDENCE SUMMARY

Transcription

1 LEGAL THEORY / JURISPRUDENCE SUMMARY LAWSKOOL PTY LTD

2 CONTENTS INTRODUCTION 4 POSITIVISM AND THE NATION OF LAW/S 5 What is legal system? 5 Obligatin 5 Law as a System f Rules 6 Legal Obligatins and Mrality 11 NATURAL LAW THEORY AND THE NATURE OF LAW/S 12 What is a legal system? 12 Adjudicating in hard cases: Psitivist View Pint 12 Adjudicating in hard cases: Naturalist View Pint 13 Is naturalism undemcratic? 15 Judge s and the plitical rder 15 Law as Integrity 16 Dwrkin s critics 17 LEGAL OBLIGATION, CIVIL DISOBEDIENCE & UNJUST LAWS 22 Legal Obligatins 22 Hart n the legal bligatins f citizens 22 Dwrkin n the legal bligatins f citizens 23 Civil Disbedience 23 Plat s Crit n the citizen s right t disbey unjust laws 24 Michael Walzer n Civil Disbedience 25 Unjust Laws 31 Dyzenhaus n the rle f the Judiciary in apartheid Suth Africa 32 Dyzenhaus thery n the RL 34 RULE OF THE LAW THEORY 37 Cnceiving the Rule f Law? 37 (i) Rule f Law versus the Rule f Pwer/Persns 37 (ii) A Standard Accunt? 38 (iii) Standard Accunt as a Frmal Cnceptin f the Rule f 38 Law? (iv)the Frmal/Substantive distinctin 39 (v) The imprtance f institutins 40 Which Cnceptin f the Rule f Law is Preferable? 40

3 Debating the Rule f Law 40 Des the Rule f Law require a law f rules? 42 Braithwaite s Thery f Legal Certainty 44 Legal Reasning and the Rule f Law 44 Legal Realism 45 Legal Frmalism 45 RIGHTS THEORY 47 What d Rights D? 47 Cnstitutinally Entrenched Rights 47 Why d peple want t Cnstitutinalise rights? 47 Judicial Pwer and Rights 48 Rights and Legal Authrity 50 Law, Rights and Demcracy 50 Cnstitutinal rights as cllective chices 51 LAW AND DEOCRATIC THEORY 52 Law abut Demcracy? 52 Pst-structuralism and Demcracy: Implicatins fr the mdern 52 legal system Pst structuralist thery f Demcracy: The challenge t 52 Liberal Demcracy CRITICAL LEGAL THEORIES 58 Intrductin 58 Feminist Legal Thery r Law and Gender 59 SOURCES CONSULTED 60

4 INTRODUCTION Legal Thery, r Jurisprudence, is the study f philsphies f law. It als encmpasses the examinatin f legal systems frm a theretical and philsphical perspective. Legal therists recgnise that the law f a natin state des nt just exist nr that its develpment happened independent f intellectual traditins. Legal thery and jurisprudential enquiry cnsiders the brader implicatins f legal systems and the practice f law. In many respects legal thery is the glue, which binds all areas f law and legal practice. This summary utlines the majr aspects and appraches t thinking abut the law, legal systems and western legal philsphies. It is written t give a basic utline and understanding f majr tenets and develpments within legal thught and prvides an intrductin t fundamental principles which underpin Australia s and ther natin s legal systems. This summary is structured in a way t intrduce majr aspects f legal thught. It is by n means definitive in its cverage f legal thery traditins. This summary is intended t be supplemented with wider reading in rder t understand the finer nuances f therists arguments and t develp individual critical thught. This summary is merely a starting pint in which t revise majr aspects f legal thught and t intrduce students t the idea f critically analysing the state f the law at present. This summary cvers the majr traditins f legal thught including psitivism, natural law thery, as well as legal bligatins, law and mrality, civil disbedience, and unjust laws. It als cvers legal philsphy such as rights based legal discurse, the rule f law, law and demcracy and pst-structural legal thery. The summary cncludes with a brief cnsideratin f critical legal thery and the interactin f law and gender; r feminist legal thery.

5 POSITIVISM AND THE NATURE OF LAW/S What is a legal system? There are three main perspectives taken by psitivists n what the law is and what cnstitutes a legal system: A system f bligatins fr citizens and state; A system f rules that regulate citizen cnduct; A system f bligatins regulating mrality. Obligatin Prminent feature f law is its existence means that certain kinds f human cnduct are n lnger ptinal and can be cnsidered mandatry; Tw frms f nn-ptinal cnduct: I. When ne is cerced/bliged r frced t act under threat f frce (eg. by a gunman); and II. When ne is subject t an bligatin when ne acts accrding t nrms which withdraw certain cnduct frm the free ptins f what ne may d. Whether a persn is bliged/bligated by a law is nt a matter f what they think but, rather, a matter f whether r nt the scial cnditins fr being bliged r bligated exist. Law as a System f Rules Grup habits vs. scial rules:

6 Grup habits cnvergent behaviur btw members f a scial grup (withut a rule requiring that behaviur); and Scial rules a general standard t be fllwed by the grup as a whle. If nt ) criticism. Rules: Deviatins meet with criticism and threatened deviatins meet with pressures fr cnfrmity; and Breaches f a rule are ften met with sanctins; and Deviatin frm the rule is accepted as gd reasn fr the making f the criticism; and The criticism/pressure is generally seen as legitimate, and is expressed with nrmative language (eg. ught, must, right, wrng). Requirements fr the existence f a rule: Cnvergence f behaviur; Sanctin/criticism fr breach f that behaviur; An element f nrmativity in the fllwing f rules and sanctining f deviatin; Rule treated as a standard f behaviur; and The criticism/sanctin is regarded as justified. Rules impse bligatins when:

7 Serius scial pressure exists t cnfrm; Rule is thught t be implied because is believed t be necessary t the maintenance f scial life r sme implied feature f it; Rule may cnflict with what the persn wh wes the duty may wish t d and may invlve a sacrifice/renunciatin because f a cnflict between duty and self-interest. Law as primary and secndary rules Primary rules: Require persns t d/abstain frm actins whether they wish t r nt; and Impse duties; and Cncern actins invlving physical mvement r changes. Secndary rules: Allw persns by ding r saying certain things t intrduce/mdify/extinguish/influence/cntrl primary rules; and Cnfer pwers, public r private; Prvide fr peratins which lead nt merely t physical mvement/change but t the creatin r variatin f duties r bligatins. Defects f a regime f slely primary rules: Uncertainty:

8 N means t determine what are r what the precise scpe f a rule is because there wuld be n rule abut an authritative text/fficial/prcess f determinatin (these wuld be secndary rules); Remedy Intrduce a rule f recgnitin r set f rules becmes a system f rules. Static quality: Culd nly change thrugh slw prcess f change in cnduct (ptinal, habitual, bligatry, r reverse); there is n means f deliberately adapting the rules; Remedy intrduce rules f change and empwer an individual/bdy t intrduce new rules end eliminate ld rules such as parliamentary legislatin. Inefficiency: Disputes abut the rules will remain unslved withut an agency empwered t finally and authritatively ascertain the utcme. Punishment f ffenders will be inefficient fr the same reasn; Remedy Intrduce rules f adjudicatin t empwer individuals t make authritative determinatins, r whether the rules have been vilated n a particular ccasin such as judicial pwer. T rder the cmplete versin f the lawskl Legal Thery / Jurisprudence Summary please visit