Week 2a What is Justice?! Agents receiving what is due! Morality of determining who should receive benefits/burdens in society, given that other may also receive these o A subset of morality that is most concerned with politics! It is necessary to have terms of social cooperation regulation of society! Rawls, A Theory of Justice o circumstances of justice a generated from! moderate scarcity (not everyone gets everything they want), and! limited altruism (people have measure of self-interest) o A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust Justice and the Impartial Point of View! (modern idea) difficult to establish self-certifying principles of justice (or morality)! Less likely to begin argument with an idea of natural rights (that is, presupposed norms of moral truth)! " clear disagreement about what is just! So what is just?! Intuitionism individualistic relativism see Lyons! Only standard is that of the individual and there own system o But [N]ever gets beyond, or underneath, our initial intuitions to show how they are related, or to provide principles that underlie and give them structure. Kymlicka o No help in regulating/structuring justice as a morality for society! Justice is a group system! How do you reconcile conflicting intuitions? " must be something further than intuitionism! How do we justify principles of justice o Claim is made of impartial reasoning! That it is an attempted constraint on intuitionism o Modern ethics establishes impartiality as the hallmark of moral reason. This conception of moral reason assumes that in order for the agent to escape egoism, and attain objectivity, he or she must adopt a universal point of view that is the same for all rational agents. Young: 100! Two levels of impartiality: Is the law itself impartial and therefore justified? Is the law being impartially applied (and therefore justified)?! Supposedly equal and detached impartially applied Impartiality and Equality! What is impartiality? o All agents/people count equally o But [T]reatment as equals requires that persons are not treated equally, but rather treated in accordance with what rights they possess, what legitimate claims they put forward, and, in general with what they deserve. Jollimore! Universalisability (link to impartiality) o Rights/wrongs are not subjective, but rather applied equally according to circumstances o Not just a matter of opinion, each person matters equally
Week 2b Thinking about Law; Historical Overview Questions that will be raised in thinking about Law (see Connoly s Notes for full list)! Why does it matter what the law is?! What is the function of the law?! Why do we need law?! The law s relationship with power and with moral/religious/political norms! Do we have an obligation to follow the law? o The question of civil disobedience o Judges and legal disobedience /judicial activism! ie apartheid rear-guard action of some judges Two influential and conflicting theories/ways of thinking about law the law! Natural Law Theory (Divine Law)! Legal Positivist Theory o This is arguably the Law s official theory. For example the whole basis of statutory interpretation is based upon the rule of law and the foundational nature of the written word (statute, constitution, etc)! Note:! Differences and conflicting tendencies within the theories o ie, ie religiously motivated natural lawyer compared to human-rights lawyer.! Influence of natural law on positive legal interpretation by Judges to differing extents o Natural law may be seen in judicial statutory interpretation, in which ambiguous rules should be interpreted where possible consistently with fundamental human rights. o See Deisenhause (spelling?), overrule racist positive law in the name of fundamental natural law inconsistency (apartheid) Positive Law! Characteristics o Objective and contingent choices and actions of agents/institutions o The actual law, written and tangible o Empirically recognised and known o Tends to be local (relative) rather than universal o Dictionary positive : explicitly laid down, expressed with no qualification! Different norms/rules/laws do exist (ie, there is morality) but it is not divinely inspired! All norms/rules/laws are the product of human s and their social institutions and practices all positive! There are moral and religious norms, but they are not divine or natural. That is they are not universal and do not exist outside of human social practices and institutions.! Law is created by legal forms of positive law-making. These are the only true laws! Positive laws which contradict moral/religious norms are nonetheless still laws, and thus the individual has a choice rather than their being any possible divine imperative. Natural Law! Characteristics o In addition to the existence of positive legal norms, every system holds laws sourced from elsewhere o Provides the normative and critical standard by which we evaluate the lawfulness/justice/goodness of positive law.! Informs the law we should have
Week 3a Legal Positivism NB: - looking from outside the view of the law. The external activity of looking upon the law and its participant s presumed norms - all theory is conditioned by circumstances yet purports to be universal (ie Hobbes universal sovereign) What is law? (or, a better question, what is not law?! The answer determines the framework for all the other questions The rise of legal positivism! Enlightenment ideals, etc and its consequences o Scientific method o Empirical, results based! Religion and its suppositions out of bounds of the scientific method o Secularism > religion/superstition (!!) o Popular democracy > monarchic/religious power o Parliamentary power growth o Science, scientific method free thought o Social sciences, and the idea of law as a purely social phenomena open to scientific inquiry o Capitalism, mercantilist, etc economic structures o Complex bureaucratic state o Nationalism, decline of political universalism o Relativism! Multiculturalism! Opinions and power! Therefore fall of natural law method o Seen as opposed to democracy (v positive law) o Inherently hierarchical! Failure of the positivist project? o Global war, genocide etc! Scientific technology culminating in the thermonuclear weapons go us. o Globalisation, universalism, religion? Connoly s aside to convince us why we should care about this subject.! Why is legal theory important? o Re Haneef! Not just talking about descriptive law, but lawyers etc arguing politically about what the law should be! Liberal-democracy etc o Re Native Title (Millurpum, Yorta Yorta)! Claimants must prove that legal system existed (and claim continued) No legal sovereign, no legal system? Enter Hart: o System of obligations o Societal obligations and consequences Don t need a sovereign from whom the law emanates o Re Tort! Medical negligence for birth of healthy child? Heyden J
Week 3b Kristin, sorry this is a big document, Connoly s slides for this lecture (lecture 6 acc to his system) are extensive to say the least. I have injected his notes in, but only until the discussion on Primary/Secondary Rules from where I ve only taken a little from his slides. My organisation/formatting may prove annoying good luck! Hart (what a hero, all the nations praise his name not) Relevance to our legal reality! Adoption of theory in the Yorta Yorta Case. Comments by Waldron! Hart is mounting a political / normative argument o Natural law thinking will create uncritical thinking about the law o Only positivism allows the room (call it constitutional/moral flexibility?) for a good or bad system! Note, this sounds like contemporary political debate, flexibility! reform!... forward progress! flexibility! reform! say the major parties o Natural law critique creates an opportunity for suspending critique of law? (contrast Deisenhause (spelling?))! Note, perhaps USSR and Nazi Germany provide examples of both positive and natural law s potential shortcomings Hobbes again! Set aside religious, etc presuppositions in and beneath the law o Make analysis from the scientific perspective! " always sovereign and subjects/those who obey because of threat of sanctions! " command theory Hart! Also positivistic o Start from the beginning, analysis of legal system from impartial view of systemic reality! Noticed: o Link between moral concepts and law (but natural law concept wrong)! The meaning of law is certainly linked to ideas of morality (but there is no natural morality, for it is also positive)! Resemblance with law and its imperatives! Both impose obligations and regulations of behaviour, often overlapping! " note, morals are constructed o Link between coercion and law (but classical positivists wrong) not just sovereign command but correctly identified (but exaggerated0 the role of sanctions " incomplete theory Many laws without sanction! Ie marriage, contract, etc! But do these provide their own sanction? Ie failure to marry is a sanction? o Law is a phenomena which renders certain behaviours no longer optional! Thus the difference between morality and law! Thus the link between coercion, morality and the law! Critique of classical positivism
o Classical positivism! Person/body of persons ( sovereign ), issuing general orders/obligations, backed by sanction,! Should be generally obeyed! People should recognise that disobedience will likely be followed by sanction! Sovereign to be internally supreme and externally independent! This model asserts that in every human society, where there is law, there is ultimately to be found latent beneath the variety of political forms this simple relationship between subjects rendering habitual obedience and a sovereign who renders habitual obedience to no one o Critique! Some rules do not emanate from a sovereign (I Law, ie CIL ground up organic)! Some lack sanctions Ie classical positivism is too hierarchical in conception We often obey laws outside of the threat of sanction therefore some other stimuli " we think it is the right thing to do? " another deeper/broader enforcer of obligations?! Fails to account to for: Laws effectiveness in large society s Variety of laws in modern society o Ie power conferring laws Mode of origin of law Range of application, o self binding application of law ie contract! the nature of sovereignty model ie given rules that constrain even the sovereigns, ie rules of monarchic succession persistence of laws made by earlier disappeared sovereign! The root cause of the failure of the classical positivist model is that the elements out of which it was constructed - the ideas of orders, obedience, habits and threats - do not include and cannot by their combination yield the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law. (Hart p.78)! Hart s Model of Rules (rules are evident because they are followed) o Legal systems all consist of rules (seemingly a truism but ) o Model:! Regularities! Habits/Rules! Non-obligatory/obligatory rules! Etiquette and games/moral rules and legal rules! Primary/secondary legal rules o Regularity and generality! But not all convergent behaviour/regularity constitutes a rule Group habits (attending Friday night movies) Absence of popular annoyance (or state sanction) a reflective critical attitude! " Rules have an internal aspect (which habits don t have), and an external aspect (which habits do have)
So what is this internal/normative aspect unique to rules? (as distinct from a behavioural external aspect)! " A reflective critical attitude pressures the group towards conformity, a standard to follow Also, a deviation from a rule is seen as a good reason for criticism on top of the social pressure exerted Criticism/demand for compliance seen as legitimate by both the criticiser and the criticised. Note also the normative language of ought, must, right and wrong! What is necessary [for the existence of a social rule] is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and that this should display itself in criticism (including selfcriticism), demands for conformity, and in acknowledgments that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ought, must, should, right and wrong (Hart p.56) o Summary of conditions for existence of a rule:! Convergence of behaviour! Criticism/sanction for breach of certain behaviour! An element of normativity in the following of rules and sanctions of actions Rule is standard behaviour for all (us and them) Criticism/sanction is justified! Internal and external aspects of rules o Must have both points of view to understand the rule o From a solely external view, rules are mere regularities with sanctions! So, rules only where convergence of behaviour and likelihood of sanction where anomalies in behaviour o From a solely internal view, attitudes of justification and standardisation are important! - ie engage normatively with the members of the community in question o " Obligations when:! Social pressure to conform! Rule thought important re social life/important aspect thereof! May conflict with wishes, therefore involves sacrifice or renunciation o Note: Question from Connoly: Hart says moral, religious, and legal rules impose obligations, but is he right to say that rules of games and etiquette do not?! Primary and Secondary rules o Perplexing aspects of law may be best understood by the understanding of two types of rules and the dynamic interplay between them o A system of legal rules comprises a combination of primary rules whose content and existence is regulated by secondary rules.! Primary Rules o Require people to abstain from behaviour whether they wish to or not o Generate primary obligations or duties in relation to one s behaviour o May be legal and moral! Secondary Rules o Parasitic on primary rules o Regulation! Rules for the regulation of primary rules! System of regulation, change, development etc Ie Constitutional alteration rules! New primary rules may be created according to the system of secondary rules
Week 4a (Thanks go to James W Millen for the lend of his notes to compensate for my sleepiness) Critiques of Legal Positivism Note:! Given different versions of legal positivism, be aware that criticism may be relevant to one and not other variations of the theory o But may be key elements of the critique and elements in common! Necessary to understand both: o Hart s argument o Waldron s reconstruction and extrapolation Hart Revision! More rational/logical than the classical model whatever that means! Two types of rules primary and secondary present in all legal systems o public and private? o That is, law is holistic and distinct because comprised of both these types! Secondary rules include; o Rules of recognition! For determining legal validity, of a purported rule (parking ticket source scenario) o Rules of change (enactment, repeal, alteration)! To identify, empower and regulate law changing institutions and officials (see Const ss 23, 40) o Rules of adjudication and enforcement! To identify, empower and regulate adjudicating and enforcing institutions (see Const ss 70, 75)! " note questions of a law s status, ie Common Law or statute according to the rules of recognition o Gradual codification today! " what is the source of a judges credentials? o Rule of recognition, etc allows (assumes) interpretation without morals?! Accepts possibility of impartiality is an objective fact identifiable? o Normative agenda that law should be judged according to no moral agendas Primary Rules! Primary rules are generally complied with (or else they are just words in statute without any real status as rules) o By way of some combination of acceptance, self-interest, fear of sanction, unreflective behaviour! Different from classical liberalism, because compliance goes beyond just fear of sanction Secondary Rules! Secondary rules empower certain individuals/classes of people to do certain things institutions of state authority (the essential failure of the classical model was its failure to account for these things) o These institutions may be good or bad for us (Waldron)! Secondary rules need not be known o Vast majority of rules only need be known to elites o Need only be sufficient compliance by officials, this is due to their complexity, only select group for the system to function! Compliance by the group control
Week 4b Dworkin on Natural Law Dworkin! Secular natural law theorist, dominant second only to Hart o See influence on US Supreme Court, o Critic of positivism! Note: Hunt s critique of positivism General critique of positivism! Positivism o Positivism s concept of a pure legal realm, distinct and defined by rules of recognition. Validity within the distinct realm of recognition. o Clear and pure view of law descriptive positivism attempts to describe the reality of the law o Democratic reasoning: identification of laws helps accountability, management by the populace! Good to be able to distinguish morally agendered rules from the real law eliminate subjectivity! Descriptive critique " the idea of impartiality as a fallacy Davies, Young o There is no legal realm purified of politics, agenda, sex etc o Therefore positivists have it descriptively wrong! Normative technique " so those who advocate this impartiality idea are being misleading o This is political and ideological o We are being encouraged to relax re the legal system, accept it! Note: Hunt similarly sees a descriptive and normative falsity in Dworkin s theory, ie encourages us not to falsely trust o Similarity in critical method Dworkin! Dworkin begins with an observation (as does Hart), an analysis of judicial reasoning o Hunt sees this source as unreliable, as judges misrepresent their basis of reasoning o Certainly, very judge orientated as a methodological starting point o Note the link between Dworkins faith in judges, and his political belief in American style separation of powers?! Hart s conception of rules as the practices of people o General rules of large groups o Language is key to storing, communicating and understanding these rules o Generality of rules! Can be vague contradictory open texture of language! eg NO VEHICLES IN THE PARK is a skateboard a vehicle? The rule itself may be legally valid, but what does it actually mean? This is legal indeterminacy! Judges go beyond the law! Morals, purpose, politics, grundnorm! This is an extra-legal realm, exercise of discretion outside of the democratic institutional matrix Democratic alarm-bells
Challenge to normative positivism and its relationship with our institutional liberal-democracy o Hart describes this phenomena, but does not take an overt moral stance! Marginal and rare o But the question remains " what if they are not marginal but endemic>?! Thus a threat to our system, but parliament can always come along and plug in the gaps! Dworkin " this open texture/legal indeterminacy is not a problem o Hard cases are common, especially constitutional law because of broad and general framework o So judges are always looking to principles! Political moral principles! Which exist and guide officials in every society! Differ between societies o Judges do and should look to these principles in informing their decision making! ie, the law of wills etc largely procedural in nature killed grandfather for money, judges construed so as not to betray principle that criminal should not benefit from crime o These principles are equally or superior to the positive law! They are used, therefore they are law! ie constitutional interpretation, these concepts (ie FPC, Feder, Rule of Law) are all elements of the greater political morality o Judge may overrule in the case of a crudely and overtly undemocratic positive law?! Democratic risk?!! No, Dworkin argues that this is law and it is democratic o But what are these principles? ie US! Constitution, institutions, rationale for behaviour, general body of case law, political speeches, history! This matrix will reveal the political culture of state! Hunt in response: o Cannot assume that a society has a single political morality! Multiculturalism, pluralism allow room for more than one defining ideology?! This may be the case in any society (if no America), in which case the universal theory will be defunct " note, but why can t the political morality/principle encapsulate a pluralist society? surely just part of the socio-political matrix o What if the political culture is evil?! Judges may legitimately strike down a reformist and good should they deem it in accordance with the principle o Normative:! We are therefore being encouraged not to question the judiciary, because how can one question a states own political morality! May lead us to believe in the inherent goodness of our system! Don t assume it is good or un- agendered o Justices do not apply our principles, but rather they impose their own personal agendas?