Lwb333 SG Sem1 12

Theories of Law
LWB333 Study Guide Semester One 2012
SEMESTER CALENDAR
The QUT academic calendar includes the starting and finishing dates for the University's first and second semesters, and the Summer Program. http://www.studentservices.qut.edu.au/info/calendar/
Theories of Law
Study Guide Semester 1, 2012
Table of Contents
DIARY CRITICAL DATES .............................................................................................................. 4 1 2 3 4 5 6 7 8 RATIONALE .......................................................................................................................... 5 AIMS ....................................................................................................................................... 6 OBJECTIVES.......................................................................................................................... 6 CONTENT .............................................................................................................................. 7 Teaching and learning approaches ........................................................................................... 9 Assessment ............................................................................................................................ 10 RESOURCE MATERIALS................................................................................................... 21 Risk management .................................................................................................................. 21
PART B FACULTY POLICY .............................................................................................................. 22 PART C FORMS ................................................................................................................................. 23 PART D: WORKSHOP TOPICS ...................................................................................................... 26 Workshop One Activities ................................................................................................................. 33 Workshop 2 Module One Natural Law Theories .......................................................................... 36 Workshop Two Activities ................................................................................................................. 42 Workshop 3 Module One Natural Law Theories.......................................................................... 45 Workshop Three Activities .............................................................................................................. 51 Workshop 4 Module Two Modern Legal Thought: Historical and conventional approaches ........................................................................................ 53 Workshop Four Activities ................................................................................................................ 65 Workshop 5 Module Two Modern Legal Thought: Historical and conventional approaches ......................................................................................... 66 Workshop Five Activities ................................................................................................................. 72 Workshop 6 Module Three Modern Legal Thought: Critical aspects ....................................... 73 Workshop Six Activities ................................................................................................................... 83 Workshop 7 Module Four Modern Legal Thought: Contemporary Rights Theory ................ 84 Workshop Seven Activities .............................................................................................................. 89 Workshop 8 Module Five Modern Legal Thought: Contemporary Critique ........................... 91 Workshop Eight Activities ............................................................................................................... 95 Workshop 9 Module Five Modern Legal Thought: Contemporary Critique ............................ 96 Workshop Nine Activities .............................................................................................................. 107 Workshop 10 Module Five Modern Legal Thought: Contemporary Critique ....................... 108 Workshop Ten Activities ................................................................................................................ 113 PART E PAST REFLECTIVE JOURNAL FEEDBACK .............................................................. 114 Sample Reflective Journal Feedback ............................................................................................ 115 Sample Examination Groupings.................................................................................................... 117 Sample Exam Questions ................................................................................................................. 119 Sample Exam Feedback ................................................................................................................. 124
QUT Faculty of Law 2012
Theories of Law
DIARY CRITICAL DATES
Task Leadership
Date
Reflective journal in progress Friday 23 March 2012 upload Reflective journal completion Thursday 26 April 2012
Theories of Law
PART A: Unit Material

Unit Code: Unit Title: Credit Points: Semester of Offer: Prerequisite: Corequisite: Coordinator: Phone: Email: Office: Consultation: LWB333 Theories of Law 12 Semester One Nil Nil Nicolas Suzor 0402 427 723 n.suzor@qut.edu.au (email preferred) C707 Available on blackboard during semester
RATIONALE
The practice of law requires an understanding and appreciation of its philosophical and theoretical foundations. These notions guide the development of the policies underlying law, and inform changes to law through legislative and judicial action. Legal theory, also known as jurisprudence, has exerted an enduring influence on the direction and nature of legal thought in the common law world and through all legal systems. In order to effectively participate in the practice of law, law graduates need to understand the underlying, and often unstated, philosophies that guide the developing law, especially through decisions at the highest level. The unit is placed in the latter stages of the course as it builds on existing attributes, skills and substantive knowledge, and develops these to a higher level.
1.2
WHAT IDEAS LIE BENEATH THIS RATIONALE?
It is expected that law graduates will have a knowledge and understanding of legal theory, or jurisprudence. Legal practitioners use legal theory in different ways. You will be better able to understand some decisions of the superior courts if you understand the theoretical foundations which lie beneath their reasons. Some members of the Bench, in particular, will expect that you will understand some legal theory. If you work in legal policy, understanding the theoretical basis of the law is essential. Within this law school, there is an expectation that you will be able to use this theory in a practical legal sense, particularly in units with a substantial research and analysis component. You may like to visit the Australian Legal Philosophy Students website for some insights into the uses in practice, in particular the references to the inaugural seminar lecture for 2004 by the Hon. Dr. Desmond Derrington QC - 'Philosophy and the Judicial Career: http://www.alpsa.net.
Theories of Law
This unit has been designed to build on your existing abilities, and will move up a gear in terms of your intellectual development. As a unit now studied as an elective, you will be expected to work more independently, be self-directed and take responsibility for your own development. These attributes are essential once you commence work. For example, some of the administrative tasks you carry out, and some of the cross-referencing you will need to do, are a very basic introduction to the practical skills of a lawyer. 1.3 HOW DOES THIS AFFECT ME?
Some of the ways we do things in this unit will differ from your expectations of law study. We are aware that you find it challenging at first to be confronted with different learning approaches, and content that is very different from what you are used to. Adapting to change and different situations is an important capability of a law graduate for example, employing different advocacy skills for different purposes, or taking instructions in a novel situation. The ability to think independently and critically will be of advantage to you, whatever form of legal work you move into. It is our hope that you find the unit challenging and stimulating.
AIMS
This unit aims to foster and develop a basic appreciation of the major theoretical and philosophical approaches that have guided the law in all stages of its development, and the impact that conflicting and competing theoretical frameworks have in assisting with the resolution of novel and difficult legal problems.
OBJECTIVES
On the successful completion of this unit, you should: 1. have acquired knowledge of the major movements in legal philosophy and legal theory, including an understanding of the historical, economic, political and social contexts in which these movements emerged; 2. be able to understand the ways these philosophies and theories are used in law at all levels of practice, and be able to evaluate the impact and effect that these philosophies and theories have had on legal thinking and practice; 3. using these philosophies and theories, be able to provide solutions to novel and difficult legal problems, and to reappraise established legal approaches in contemporary circumstances; 4. have acquired critical reflective competencies so that you can develop and construct effective solutions and reappraisals, to enhance standard legal problem solving methods;
Theories of Law
5. have acquired the capacity for reflective practice through tasks designed to demonstrate its importance as an essential component of lifelong learning; and 6. be able to effectively communicate in a range of modes, focussing on the capacity to work with a small group of people over a period of time, requiring an ethical orientation, an inclusive perspective, a social justice orientation, and an appreciation of race, culture, gender and socio-economic differences.
CONTENT
The content of this unit seeks to impart both knowledge based content and process based competencies that will result in independent learning outcomes, which will provide a sound foundation for lifelong learning. 1. Overview and skills Critical reading and writing methods Requirements of independent learning the use of the online activity Development of reflective practice The inculcation of ethical and attitudinal attributes through syndicate work The expectations of social and relational competences through syndicate work Content overview Outline writing 2. Topic One - Natural Law Historical and contemporary natural law theories 3. Topic Two - Modern Legal Thought: historical and conventional approaches Modernism and Liberalism and Law as Science, Bentham and Austin, Hart and Kelsen 4. Topic Three - Modern Legal Thought: critical aspects Marx, Weber, and Durkheim, sociological legal theories, American Legal Realism 5. Topic Four - Modern Legal Thought: contemporary rights theory Dworkin 6. Topic Five - Contemporary Critique Critical Legal Studies, Postmodern Legal Thought, Feminist Theories of Law, Critical Race Theory and postcolonial legal theory
When you look at the grouping of topics for the exam (see Part E), you will see that these general topic areas form the basis of the groups of theories/theorists used for the exam.
Theories of Law
4.2
What is the purpose of knowing this content?
In this unit, you will be introduced to a cluster of legal theories that have profoundly influenced the practice of law in the common law world. You will also be introduced to some of the key legal theories that adopt a critical approach towards law. Knowledge of all the general ideas of all the theories is imperative in this unit, though within a semester, it will not be possible for you to cover all the theories in the same depth. You must ensure that you learn about all the theories you will be introduced to over the semester. Knowing a few theories only, in isolation, will hamper your understanding of the theory itself. You will see later in this Study Guide that the content of this unit is divided into general topic areas referred to above. These topics contain groupings of theories that adopt the same or similar approaches. To ensure that you have covered a range of different theoretical groupings, your exam in this unit will cover 3 theories taken from three of the five general topic areas. This means that you will be required to study 3 theories in more depth than others for the exam. 4.3 Graduate Capabilities
Your understanding of the unit content and the further development of these skills will assist you to acquire the following law graduate capabilities: Discipline Knowledge; Problem Solving, Reasoning and Research; Effective Communication; Life Long Learning; Working Independently and Collaboratively; Social and ethical responsibility and an understanding of indigenous and international perspectives; and Characteristics of self-reliance and leadership.
Theories of Law
Teaching and learning approaches
The teaching and learning approaches for this unit aim to encourage and assist you to engage in the active and interactive learning of legal theory and philosophy. They are designed to foster and develop your abilities as self-directed independent learners, and aim to enhance your ability to be adaptable and open to unique, novel and untested legal scenarios. As a third-level unit, you will be expected to bring earlier level capabilities to this unit, and to be equipped to engage with the expectations set in this unit.
5.2
Lectures
Two lectures are held in this unit: one at the beginning of semester and one at the end of semester. The lecture in Week One will introduce you to the unit. The final lecture, in Week Thirteen, takes the form of a revision session for your exam. These two lectures are recorded and made available on the Blackboard site.
5.3
Internal workshops
Instead of a regular lecture, internal students will participate in a two hour workshop each week. Most two hour workshops will be split between whole group work, in which you will work through the unit content in a structured setting with the lecturer, and small syndicate group work. In your syndicate groups, you will rotate through a series of activities designed to enhance your independent learning. Each of you will be required to lead your syndicate group through the weekly activities once during the semester. Workshops in this unit do not replace lectures. You will be required to go through the unit content in your own time prior to each workshop. You will need to complete the readings listed in the study guide each week and come to class prepared to discuss the unit material. Your tutor will make sure that you understand the theories, and clear up any misunderstandings, and guide your structured learning. Your tutor will encourage you to develop reasoned arguments about a topic, and let you know how well you are progressing. 5.4 External discussion forum
External students will be able to access a recording of the whole-group portions of internal workshops each week. External students are expected to participate each week on the online discussion forum, where you will interact with the tutor and your peers as you work through the content together. You will be required to log on and post to the online forum at least twice a week in order to ensure that a real discussion is possible. You are expected to spend two hours over the course of each week reading and responding to the online discussion.
Theories of Law
Assessment
Assessment Workshop / forum participation Reflective journal Weight 30% 10% Due Date Weeks 2-12 300 word in-progress component due Week 4. 1000 word final journal due Week 8. End of semester
Final take-home exam
60%
6.2
Formative assessment
Active participation in workshops and the online discussion forum, based on your own preparation, will provide you with immediate feedback about your understanding of the unit content, the process of learning and your attitudinal and communication skills. The leadership activities you undertake provide you with both formative and summative elements, designed to feed into the major piece of summative assessment for the semester. You are provided with feedback in the next teaching week after you have undertaken this work. Your reflective journal provides you with the opportunity to reflect on your own development from an early to later stage of semester. 6.3 Internal workshop participation: 20% (internal only)
Assessment Item No. 1 Assessment name: Relates to learning outcomes: Weight: Internal or external: Group or Individual: Due date:
Workshop participation 1-6 30% Internal Individual Throughout semester
Participation comprises the level of preparation and contribution you make to the workshops, and includes the ability to balance your ability to speak with your ability to actively listen. It is possible to attend all workshops and receive no marks for participation. You will also be required to lead your syndicate group through the weekly exercises once during the semester. You will facilitate a small group discussion of the workshop question for that session. This task will include both a short written component and an oral leadership component. You will prepare a short (300 word) outline of your answer to the question.
10
Theories of Law
You will then lead your syndicate group through the discussion of the question. Your task is to facilitate discussion, not to give a presentation. You must try to stimulate discussion and develop understanding while exploring the differing points of view of your other syndicate group members.
As a basic proposition, participation involves: speaking, answering questions and engaging actively in the workshop. active, involved listening, and knowing how to balance your contribution verbal and non-verbal activities by which you contribute to the learning environment. it also includes helping others to participate, for example by listening attentively. inconsiderate behaviour, like rolling your eyes, or speaking while others are trying to contribute, hogging the discussion, demeaning your peers, or not listening, negatives your participation. You will lose participation marks for engaging in this type of inconsiderate behaviour.
6.4
External online discussion participation: 30% (external only)
Assessment Item No. 2 Assessment name: Relates to learning outcomes: Weight: Internal or external: Group or Individual: Due date:
Workshop participation 1-6 30% External Individual Throughout semester
External students are expected to participate each week in an online discussion forum. Participation marks are awarded on the basis of active contribution and dialogue on the forum, and students are expected to access the forum multiple times throughout each week in order to fully participate in the discussion. Each external student will also undertake a leadership task once in the semester, in which you will be expected to facilitate the discussion of the tutorial questions for a particular week. You will prepare a short (300 word) outline of your answer to the question which you will post on the discussion board. You will then commence the discussion by asking some starting questions for other students to consider. You will then be required to support and respond the discussion during that week.
11
Theories of Law
6.5
Reflective journal: 10% (internal and external students)
Assessment Item No. 3 Assessment name: Relates to learning outcomes: Weight: Internal or external: Group or Individual: Due date: Submission:
Reflective journal 1-6 10% Internal and external Individual Week 4 (in-progress component) Week 8 (final journal) Assignment Minder
The reflective journal is a two stage item of assessment integral to understanding your own process of development through a staged task. It is designed to give you an insight into how your understanding of a topic develops through exposure to new information and ideas, and how this process is part of the reflective practice that continues through lifelong learning. A reflective journal is like a diary setting out your insights and understanding of your own process of learning and development. The reflective journal you do in this unit is based around your thoughtful responses to a piece of writing, such as an article, a book, or an extract from a case (the text). You do the reflective journal in two stages once early in semester, and once later in semester. You are being asked to look at the changes that you go through over a period of time. You are asked to use the text as a catalyst on which to base your observations and responses to something that is likely to be new, unknown and different to you. You will also use the text to plot your starting point in the unit, and when you return to it later in semester, you will be able to chart any changes to your own abilities to deal with the piece of writing. Through this work, you are asked to return to your original observations, and respond to and reflect on them. You are assessed on how thoughtfully you have approached this process of reflection.
Information The reflective journal question and instructions for completion and submission of the journal are on the Blackboard site. The text you need to read for the reflective journal will be located on the Course Materials Database (CMD) from the start of semester. The CMD is accessible from the Blackboard site Feedback from a previous year journal is included in Part E of this Study Guide.
12
Theories of Law
Timeline and submission requirements Activity Comments or requirements Due Date/When
Upload in-progress component to the Blackboard site Submit Completed journal
Word limit: 300 words
Week 4
Word limit: 1000 word o Made up of 300 words in-progress component as uploaded; and o remainder of 700 words reflecting on how your understanding has changed and how you approach new material.
Week 8: See semester timetable Standard penalties for late submission apply Submitted through Assignment Minder
By understanding your own process of development, this activity will help you with your learning in the unit itself, and will give you insights into the ways you may approach new and untested topics in the future. As a process of explanation and argument, your work in the journal will assist you with your ability to develop a reasoned, logical argument in your exam for this unit. 6.6 Take-home exam: 60% (internal and external students)
Assessment Item No. 4 Assessment name: Relates to learning outcomes: Weight: Internal or external: Group or Individual: Due date: Submission:
Take-home Exam 1-5 60% Internal and External Individual Central Exam Period Blackboard
The final exam in this unit will be a take-home exam released on blackboard during the central examination period. You undertake one question only from three, using theories from three modules of unit. In week 12 of semester, you will be told of the exam groupings, but not the exam question. You will be able to make a choice of question based on these groupings, and undertake in depth preparation for the take-home examination.
13
Theories of Law
LWB333 THEORIES OF LAW: INTERNAL WORKSHOP PROGRAM 2012

Week Workshop Dates (week beginning) 27 February 2012 Workshop Format
Introductory lecture Note: no workshop this week, only the Monday lecture. Workshop 1 Lecture only, no workshop
5 March 2012 Session 1: Introducing legal theory
Whole group work
Session 2: Reading and writing Workshop 2 3 12 March 2012 Session 1: Classical natural law Whole group work
Session 2: Social contract theories of natural law Workshop 3 4 19 March 2012 Upload RJ in progress Friday 23 March 2012 Syndicate groups Contemporary natural law Whole group work Workshop 4 5 26 March 2012 Session 1: Modernism, liberalism and law as science Whole group work
Session 2: Bentham and Austin Workshop 5 6 2 April 2012 Session 1:Hart
Syndicate groups
Syndicate groups
Session 2: Kelsen
Whole group work
Mid-semester break Workshop 6 7 16 April 2012 Session 1: Marx, Weber and Durkheim Syndicate groups
Session 2: Sociological legal theories, American Legal Realism
Whole group work
14
Theories of Law Workshop 7 8 23 April 2012 Submit completed reflective journal Thursday 26 April 2012 Dworkin
Syndicate groups Whole group work Workshop 8
30 April 2012 Critical Legal Studies
Syndicate groups
Whole group work
Public holiday Monday 7 May, no workshop this week Workshop 9 12 21 May 2012 Feminist Legal Theories Whole group work Workshop 10 11 14 May 2012 Postmodern legal theory, Critical Race, Postcolonial Legal Theory Whole group work Syndicate groups Syndicate groups
13
28 May 2012
Final lecture Exam groupings provided
Lecture
15
Theories of Law
LWB333 THEORIES OF LAW: EXTERNAL WORKSHOP PROGRAM 2012

Week Workshop Dates (week starting) 27 February 2012 7 March 2012 Session 1: Introducing legal theory Workshop Format Lecture (recorded) Recorded internal workshop Online discussion board
Introductory lecture Workshop 1
Session 2: Reading and writing Workshop 2 3 12 March 2012 Session 1: Classical natural law
Recorded internal workshop Online discussion board
Session 2: Social contract theories of natural law Workshop 3 4 19 March 2012 Upload RJ in progress Friday 23 March 2012 Contemporary natural law
Workshop 4 5 26 March 2012 Session 1: Modernism, liberalism and law as science Session 2: Bentham and Austin Recorded internal workshop Online discussion board
Workshop 5 6 2 April 2012 Session 1:Hart Recorded internal workshop Online discussion board
Session 2: Kelsen
Mid-semester break Workshop 6 7 16 April 2012 Session 1: Marx, Weber and Durkheim Recorded internal workshop Online discussion board
Session 2: Sociological legal theories, American Legal Realism
16
Theories of Law Workshop 7 8 23 April 2012 Submit completed reflective journal Thursday 26 April 2012 Dworkin
Recorded internal workshop Online discussion board Workshop 8
30 April 2012 Critical Legal Studies
Public holiday Monday 7 May, no workshop this week Workshop 9 12 21 May 2012 Feminist Legal Theories Recorded internal workshop Online discussion board Workshop 10 11 14 May 2012 Postmodern legal theory, Critical Race, Postcolonial Legal Theory Recorded internal workshop Online discussion board
13
28 May 2012
Final lecture Exam groupings provided
Lecture (recorded)
17
Theories of Law
GENERIC CRITERIA OUTLINES AND EXAM

Criterion Explanation Where you can find yourself in trouble You should not change the question to suit you, or answer a different question.
7
You engage with the subtleties and complexities in the question at a very high level
6
You engage with many of the subtleties and complexities in the question at a high level
5
You show that you are aware of the some of the complexities of the question, but tend to a more surface level approach to the question You have enough understanding of the theory to be able to show how it can be used to deal with the question at a general level, but not enough to pick up the complexities of the question
4
You have a base level awareness of the question, and do not pick up anything more than a surface level approach to the question You have some knowledge of the theory, but only have a bare understanding of the theory
3
You cannot grasp the focus of the question.
2 or 1
You show no recognition or acknowledgement of the question, or you may disregard the question
Answering the question
What this means is answering the question as set. You read what it is asking, and direct your answer to it. You have to be able to do more than simply describe or repeat the content of a theory. Understanding a theory can only be shown by using the theory in answering the question.
Understanding the theoretical material used
Repeating or describing the theory without showing any understanding of how it is used.
You demonstrate a very high level of understanding by knowing the theory in depth, so that you can use the most relevant facet of the theory to engage in the subtleties and complexities of the question
You demonstrate a high level understanding of the theory , and can make use of this understanding to engage in the complexity of the question
You have a superficial knowledge of the theory, but no effective understanding of the theory
You do not have an acceptable level of knowledge of the theory, and have not demonstrated any understanding of the theory
Relating of the theories to the question
What this means is thinking about the way the theories can be used to direct your answer to the question
You dont demonstrate any knowledge or understanding of the theories You disregard the theories you are asked to consider
You rely on a high level understanding of the relevant aspect of the theories to develop your answer to the question
You have a very good understanding of and make a sustained use of the relevant aspect of the theory to answer the question
You have a more general understanding of the theories, which means that you miss the subtleties found in the question
You have some basic understanding of the theories and use this to pick up basic connections to the question
You do not have a basic awareness of the theory to be able to use it in the question. You may have some knowledge of the theory, but do not demonstrate understanding
You do not have any basic knowledge or understanding of the theories to be able to connect the theory to the question
18
Theories of Law
Criterion Explanation Where you can find yourself in trouble You simply rehash or repeat the theories. You waste words repeating theories at the expense of developing your answer
7
You use the theories in a way which both demonstrates understanding and which supports your argument at a very high level. Your use of description is built into your argument. You will take the reader through a developed argument from beginning to end, in which you draw on the theories to support your conclusion, at a very high level.
6
You balance these elements at a very high level, but lose argument in favour of description, or vice versa
5
You tend to focus on description with some limited argumentation
4
You simply describe the theories and do not link this description to the argument or developing your answer
3
You make no attempt to develop an argument, and simply repeat or describe the theory, and/or may provide unsubstantiated assertion in place of argument
2 or 1
You simply repeat poorly understood knowledge about the theory and/or provide unsubstantiated personal views about the question
The balance between description of the theories and the development of your argument or justification
You know which aspect of the theory helps you develop your argument and which does not help you.
Logical development of argument/ Coherence of argument
A high level of preparation and understanding will help you develop your argument or answer so that it will logically follow through You have planned an answer based on a high- level understanding to know how your argument pulls together.
You will jump around from one thing to another without seeing the connections, detracting from the rest of your answer. You have a fractured collection of responses that do not coalesce to form a sustained whole
You will build your answer so that the reader is taken through your argument at a high level of development.
You set out your answer in a logical fashion with some development of argument
Your answer is given a basic structure without relating the structure to an argument, but with reference to the question.
You will have attempted to structure an answer but to theories and arguments without reference to the question
You will have used disconnected references to theories and arguments without reference to the question
19
Theories of Law
Criterion Explanation Where you can find yourself in trouble You will use personal opinion, viewpoints, or polemic without recourse to reasoned argument
2 or 1
Critical analysis and evaluation of your own premises and arguments as well as those of others
This includes an understanding the limitations, the effectiveness of your reasoned standpoints. You can use this material to develop and support your argument.
Originality of argument
Originality does not mean creating a new theory, but can include insights and new ideas based on your work
You can be very original but fail if you dont understand what you are doing
You clearly develop a reasoned criticism of your own or others views based on your knowledge and understanding, at a very high level, on which you build your own argument. You show new insights about a theory, or into a legal scenario based on that theory, or new ideas
You show a good appreciation of the limitations of a theory based on your understanding of the theory, at a high level
You show some critical analysis but rely strongly on the views of others without demonstrating more than a basic understanding of the basis for those views.
You can repeat the criticism of others without demonstrating your own understanding of why the criticism is valid, or make assertions without properly understanding why You do not come up with any original ideas or arguments but your answer is linked to the question
You will offer criticism without demonstrating an effective basis for that criticism
Your criticism will not be connected with a broader understanding of the basis of those views, and so cannot be substantiated
You can use your understanding to uncover limitations of the theory, or legal scenario, or new ideas
You show some limited insights into the theory and its practical use
You do not attempt to think about the question.
You do not attempt to think about the question or make up an answer unrelated to the question
20
Theories of Law
7
7.1
RESOURCE MATERIALS
Prescribed Texts Margaret Davies: Asking the Law Question 3nd edition, Law Book Co 2008 Leiboff and Thomas: Legal Theories: Context and Practices, Thomson, 2009 (LTC&P) We have provided parallel citations to the earlier edition of the Leiboff and Thomas text, Legal Theories: In Principle, Thomson, 2004 (LTIP) for those of you who have access to a second-hand copy. Either book will be sufficient for the purposes of this unit. Additional prescribed primary readings are required as referred to in the study guide. These readings are made available on the Course Materials Database (CMD).
7.2
Recommended text Freeman Lloyd: Introduction to Jurisprudence 7th or 8th edition, Sweet and Maxwell 2001/2008 Sometimes, the material on the CMD may be sourced from the recommended text, Freeman Lloyds Introduction to Jurisprudence (Lloyd), from the original source, or from some other material. A guide to materials is included in the back of the Study Guide, as the Study Guide will refer to extracts from Lloyd, while the CMD may use the original source (for copyright reasons). We suggest it may be helpful to obtain Lloyd, the recommended text, especially if you are studying externally, as it includes a considerable amount of primary material.
7.3
Reference materials Sandra Berns: Concise Jurisprudence, Federation Press: Sydney 1993 Roger Cotterell: The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy, Butterworths: London 1989 JW Harris: Legal Philosophies 2nd edition, Butterworths: London 1997 McCoubrey and White: Textbook on Jurisprudence 2nd edition, Blackstone Press: London 1996 Raymond Wacks Swot: Jurisprudence 5th edition, Blackstone Press: London 1999 Ian Ward: An Introduction to Critical Legal Theory 2nd edition, Cavendish Publishing: London 2004
Risk management
Risk Assessment Statement There are no out of the ordinary risks associated with this unit
21
Theories of Law
Part B: Faculty Policies

For all relevant faculty policies consult the law school website see: http://www.law.qut.edu.au/study/current/lawschool/ Academic Integrity QUT is committed to maintaining high academic standards in all of its course and unit offerings, and expects students to conduct themselves in a manner which is fair, honest and consistent with the principles of academic integrity, particularly when undertaking assessment. Failing to maintain academic integrity is a serious breach of QUT Student Rules (Appendix 1C of the Manual of Policies and Procedures (MOPP) at http://www.mopp.qut.edu.au/Appendix/append01cst.jsp#Part5) relating to assessment, and is of particular relevance to any unit which has a research assignment or similar assessment as an assessment item. All instances of failing to maintain academic integrity in this unit will be dealt with in accordance with the University procedures as detailed in Chapter C of the MOPP and penalties may be imposed. For further information see: http://www.mopp.qut.edu.au/C/C_05_03.jsp#C_05_03.04.mdoc Failing to maintain academic integrity includes copying any part of another students work, providing copy to another student for the purposes of plagiarism, collaboration with other students which defeats the purpose of the assessment, copying information directly from books, articles or the internet without full and comprehensive acknowledgement of the source, obtaining material from a plagiarism website which provides complete papers on university topics, or similar activities.
22
Theories of Law
PART C FORMS
23
Theories of Law
LWB333 Theories of Law Semester One 2010 Internal Syndicate Group Management Form
Internal Syndicate Group Members
1 2 3 4 5 6 7 8
Week Week 4
SYNDICATE SESSION Diary Workshop 3: Contemporary Natural Law Session 2: Finnis Workshop 4: Session 2: Bentham and Austin
Leader
Week 5
Week 6
Workshop 5: Session 1: Hart
Week 8
Workshop 6: Session 1: Marx, Weber and Durkheim
Week 9
Workshop 7: Session 1: Dworkin
Week 10
Workshop 8: Session 1: Critical Legal Studies
Week 11
Workshop 9: Session 1: Feminist Legal Theories
Week 12
Workshop 10: Session 1: Post-modern legal theories, Critical Race, Post-colonial Legal Theory
24
Theories of Law
LWB333 Theories of Law Semester One 2010 External Discussion Board Management Form
Week Week 4 DISCUSSION FORUM Workshop 3: Contemporary Natural Law Session 2: Finnis Week 5 Workshop 4: Session 2: Bentham and Austin Leader
Week 6
Workshop 5: Session 1: Hart
Week 8
Workshop 6: Session 1: Marx, Weber and Durkheim
Week 9
Workshop 7: Session 1: Dworkin
Week 10
Workshop 8: Session 1: Critical Legal Studies
Week 11
Workshop 9: Session 1: Feminist Legal Theories
Week 12
Workshop 10: Session 1: Post-modern legal theories, Critical Race, Post-colonial Legal Theory
25
Theories of Law
PART D: WORKSHOP TOPICS
26
Theories of Law
Workshop 1 Introducing legal theory
27
Theories of Law
Workshop 1 - Introducing legal theory

WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES After completing this workshop, you will have acquired:

a basic understanding of what this unit requires of you this semester an understanding of the role of theories in the process of law an introduction to the variety of theories which exist in relation to law ways into approaching the reading of the material to be used in this semester ways into the writing tasks
WHOLE GROUP WORKSHOP: TASKS AND ACTIVITIES 1. This workshop is held in Week Two of semester 2. In Week One, look through Parts A of the Study Guide and the Blackboard materials to find out how the unit is taught and what tasks are expected of you, including assessment. Make sure you look at the information applicable to you, and cross-reference between the parts of the Study Guide. 3. Find the participant checklist on the Blackboard site that guides your preparation for this workshop 4. Read through the content and activities for this workshop during Week One 5. Do your prescribed reading, and do recommended or further reading if you want 6. Come to LECTURE ONE, which is held on the Monday of Week One, access the PowerPoint slides, or access the tape 7. Work through the online activity, making sure you complete it by the date set out in your timetable 8. Follow through the rest of your participant checklist to prepare for this workshop
ONLINE ACTIVITY FOR THIS WORKSHOP TOPIC ONE: questions) INTRODUCING YOU TO LEGAL THEORY (20
READING Prescribed Reading: *LTIP Chapters 1 and 2 OR LT&CP Chapters 1 and 2 *Davies Asking the Law Question (2nd ed) Chapter 1
28
Theories of Law
Further Reading: 8th ed)
Freeman Lloyds Introduction to Jurisprudence (7th or Chapters 1 and 2 Wacks Swot Chapters 1 & 2
Introducing You to Legal Theories

CONNECTING LEGAL THEORY TO LAW Read: LTC&P pp 1-8 OR LTIP pp 1-8, Davies pp 1-12 By the time you get the third year, many of you will be very practically minded, and may think that theory has no real connection to law. But, as we will discover, acquiring a deeper understanding of how and why the practical things operate can only enhance how you go about doing those things. In this unit, we will look behind the black letter of the law, to try to find out some of the fundamental assumptions on which the law is based, and learn to either support those assumptions or question them. Aspects of legal theory may be a challenge for you, because you will be introduced to different ways of thinking, and acquiring a new language. You may also find it very different to stand back from a judgment and look at the theory that underlies it or can be used to critique it. You are also being challenged to learn to substantiate a reasoned and logically developed argument, which is very different from techniques like problem-solving. At the same time, you will be thinking ideas through for yourself to become a critically reflective reader and thinker.
A BROAD RANGE OF THEORIES

Read LT&CP pp 22-26 OR LTIP pp 8-21, Davies pp 13-31 We will be exploring a number of influential legal theories in this unit, which can be grouped, roughly, around two categories: conventional and non-conventional legal theories. Because of the way the unit is structured into 5 general topic areas, you will have to consider at least either one or two of these different approaches towards legal theory in your exam. The unit takes a broadly chronological approach towards the legal theories you will study. In Leiboff & Thomas, at Figures 1.1 and 1.2, you will find two timelines that will help you find out where in time particular theories originated, when they have had their greatest influence, and when (or if) their influenced waned. In this unit, we reach back in time to the Ancient Greeks until the present day, and consider the underlying political and other philosophies that influenced some of the specifically legal theories we will pay attention to: see Part A at 6.1 for an overview of the modules and content we will cover in this unit. Conventional legal theories: Modules 1, 2 and 4 Natural law, Modern Legal Thought: historical and conventional approaches and contemporary rights theory (Dworkin) - can be roughly grouped together as the conventional legal theories we
QUT Faculty of Law 2012 29
Theories of Law
will look at in this unit: see L&T pp 16-18 for an overview. Conventional legal theories include those which have influenced law for centuries, and current legal theories which seek to justify the methods, assumptions and approaches of law through adopting an internal approach towards legal thinking. In broad terms, for these theories, law stands apart as an area of thought. Despite this, some conventional legal theories can be socially radical. Non-conventional legal theories: Modules 3 and 5 - Modern Legal Thought: critical aspects and Contemporary Critique can be roughly grouped together as the nonconventional legal theories we will look at in this unit: see L&T pp 19-21 for an overview. These theories can be traced to the ideas of Marx in the early 19th century, and the ideas and methods that derived from Marx has spawned a broad range of legal theories that look at law using external or non-legal techniques and methods to either critically examine legal assumptions or to make law work better. These theories all challenge the notion that law is a distinct area of human existence uninfluenced by external factors. Some non-conventional legal theories can adopt a relatively conservative approach.
Reading and Writing: Learning Strategies

MAKING A START Read LTC&P pp35-57 OR LTIP pp 25-26, 28-33 Making the connections between the law you have been learning over the last few years and the approaches of legal theory may be a challenge for you. You can get some ideas about learning legal theory from these pages of L&T, and by trying to work out your learning style. Knowing how you approach your learning will help you understand why using other peoples notes or learning methods may not be helpful for you. Your activities for this workshop include a quiz that will give you some idea about your own approaches towards learning. READING LEGAL THEORY Read LTC&P pp 57-68 OR LTIP pp 5-7, 26-29, 38-40 Reading is crucial to your work in this unit. Learning how to read cases and statutes was hard initially but you are becoming good at doing both. You may find some of the reading hard going at first, but the more you work through things, the easier it will become. Each time we read them, we are rewarded with new insights and new observations, and new understanding. You will do a couple of activities over semester where we want you to review and reflect on how youre going, to encourage you to read more than once. DOING THE ONLINE ACTIVITY One of the roles of the online activity is to help you through your reading. As it is the first of your online activities, we thought we would give you a leg-up to help get you started. The focus of the activity is your prescribed reading from Davies Chapter 1. We strongly recommend that you read L&T before you attempt reading Davies.
30
Theories of Law
Here are some starting questions, which might help you break down the ideas in the chapter, which you can use to help you work through the online activity. We havent given you the page references to our questions here we want you to think about the ideas she is coming up with and not just trying to find an answer. We will work on this chapter in one of the activities for this workshop. Dont worry if you cant understand everything now you will be looking at this chapter again later in semester. What does Davies want to tell us in Chapter 1? Is jurisprudence boring what type of boring is she talking about? Is theory divorced from practicalities? A blank form? What is the point of the story about Charles Yablons papers? Is knowledge actually fixed, certain, and out there: and does the same go for law? Does everyone think the same way: is this relevant to legal theory? Is it important that we understand the inside and the outside view of law? Does it matter who you are in terms of how you see law, and how law sees you: does law respond to you differently if you are an outsider? The D H Lawrence story is designed to make us think about the concepts of law and how law might change: would it be better if lawyers were cabbages? Why are there so many legal theories, and why has they changed so much and has it really been decapitated?
FINDING ARGUMENTS Read Leiboff & Thomas pp 7-8, pp21-22, 26-28, Davies pp10-12 One aspect of your working through Davies chapter is to find her argument about legal theory, or jurisprudence otherwise you will miss the point about cabbages! It can be very different reading something to find an argument than simply to find information. One of the challenges of reading legal theory is that much of the text is part of the supporting argument. The content is not used to simply give you knowledge or information. But when you think about it, this is not really all that different from finding the ratio of a case. DEVELOPING YOUR OWN ARGUMENTS Read LTC&P pp18-22 OR LTIP pp 33-37 Your challenge in this unit is to learn to think and write in a way which will convince the person listening to you or reading your writing that your argument is good, interesting, and well constructed. This is not just a skill for this unit, but for your legal work, and other aspects of your general skills. What this means is that to be able to pass this unit, you will need to be able to write a reasoned well constructed argument, rather than describe a theory or apply it to facts. The criterion based assessment used in this unit is designed around the idea that you will do more than simply repeat knowledge you have acquired: see PART A, 9.4. To help you work out what is expected of you, work through these pages of L&T. WRITING
31
Theories of Law
You have two main pieces of writing in this unit your outline and your exam answer. Your outline is designed to help you with preparing for and writing your exam. An outline, for this unit, is not a summary of a textbook or notes, but is your answer to the question set in dot point form its OK to use fragments of sentences. You use a very similar technique when you are counsel in a moot. You need to pull away from wanting to describe the theories, to using them to support your answer or argument. You can show that you have relied on the theories by referencing them in footnotes. You might think it is very easy to do, but you actually have to work very hard at this process. When you need to do an outline, your checklists give you a timeline that you should try to follow at a bare minimum. Keep the generic criteria and your marking sheets in mind when you decide what to keep or leave out of your outline. Writing an outline is also practice for doing an exam in this unit, because an outline is like your plan of an answer, and helps you to work out what you need to include and what you can leave out. Keep in mind everything weve said in the generic criteria in PART A and the feedback you are given over the semester. Have a look at the exam feedback and last years answer guides in Part G of the Study Guide, which are like outlines they go to the heart of the issue. You might also like to look ahead to Chapter 14 of L&T as well. You will see that our answer guides can be longer than we expect of you in your outlines, but that is because we are giving a range of possibilities for your answers. Remember that if your answer is based in the theory, you understand it, and have thought about the question, you can easily come up with a different approach towards the question.
WORKLOAD
If you flick through the work you will being doing over the semester, you will see that you are expected to do quite a bit of work in the early weeks of semester. However, as the semester goes on, your workload will decrease. We think that it is better for you to focus hard early in semester, and for you to spend the last part of semester thinking about the theories you have learnt. You need to start work on your reflective journal NOW so that you can have it ready in time to submit in Week Three; and you also need to balance your preparation so that you can do your online activity in Week Three.
32
Theories of Law
Workshop One Activities

You need to do a small amount of preparation for these activities
Activity One
1. You will meet your peers and get to know each other 2. You will be split into syndicate groups and choose and negotiate your leadership topics, and allocate the other tasks. 3. You should check the topics before you come to the workshop and your other assessment obligations 4. Your tutor will answer questions and clarify issues that arise
Activity Two
1. You can answer do this quiz before or during your workshop 2. In your workshop, you will be given the opportunity to discuss how your preferred learning approach may influence the way you work in this unit 3. You can discuss with your peers the differences or similarities between you 4. You can refer to LTC&P pp 46-57; LTIP pp 25-26, 28-33 to see if you can relate your outcome in this quiz to what you think your learning style is 5. You can then discuss how these differences will impact on how you communicate with each other
33
Theories of Law
Which is more like you? This is not a test and there is no right or wrong answer. 1. When studying an unfamiliar area, you prefer (a) to get information from diverse areas (b) to focus on one topic only You would rather: (a) know a little about a great many areas (b) become an expert on just one area When working from a textbook, you: (a) skip ahead and read chapters or parts of chapters of special interest out of sequence (b) work systematically through it, not moving on until you have understood what you have just worked through When browsing in a library or a bookstore (or online), you: (a) roam around looking at books on many different subjects (b) stay more or less in one place, looking at books on just a couple of subjects When asking people for information about some subject of interest, you: (a) tend to ask broad questions that call for rather general answers (b) tend to ask narrow questions that demand specific answers You are best at remembering: (a) general principles (b) specific facts When performing some tasks, you: (a) like to have background information not strictly related to the work (b) prefer to concentrate only on what you decide is strictly relevant information When on holidays, you would rather: (a) spend a short amount of time in several places (b) stay in one place and get to know it well When learning something, you would rather: (a) follow general guidelines (b) work with a detailed plan of action In addition to specialised knowledge, a person should know some maths, art, physics, literature, psychology, politics, languages, biology, history and medicine. If you think people should study four or more of these subjects, mark (a); otherwise mark (b): (a) four or more (b) otherwise Total all of your (a) and (b) answers: (a) _______ (b) _______
2.
3.
4.
1.
2.
3.
4.
5.
6.
Results again, this is not a question of right or wrong
34
Theories of Law
If you scored 6 or more for (a), you are like STYLE B and STYLE D in L&T If you scored 6 or more for (b), you are STYLE A and STYLE C in L&T If your totals are = or close, then choose the one the method that suits what you are learning The higher your total for one category, the more specialised your learning style is. 6 or more for (a) You prefer to take a broad view of a subject. You search out general overall principles, rather than details, relating one topic to as many areas as possible. You find relationships and draw parallels. You learn most easily and effectively in unstructured situations. You learn best by keeping a big plan and general concepts, in mind but keep a separate list of detailed parts of the subject matter you need to master later. For this unit, this means that you should perhaps flick through the material to get a broad picture of the principles of legal theory, and have got the general idea, then go back to look at the detail. In the main, we will lecture in part taking this approach, but do not mistake this for you to ignore detail rather, we want you to get the picture in broad outline so that you can see how legal theory can be applied. 6 or more for (b) You are systematic and methodical, obtaining the details before moving to general concepts. You will have a detailed roadmap when you finish you study, so dont be anxious about the time you spend on it. Develop a firmly structured plan with which you feel comfortable, but also establish clear long-term goals, so you will end up with the total picture. For this unit, you will want and need to get a detailed grasp of each and every theory, knowing the detail of what it is about, and having got the detail, only then will you feel comfortable making the connections with how the theory fits into the big legal picture. You will want to work through the online activity and make very detailed notes, and will prefer to work through L&T using the content rather than themes or methods as the basis for your work
Activity Three
This activity is based on your reading of Davies Chapter 1. You should have access to any notes you made while working through the online activity, and the chapter itself, so you can refer to it in your workshop.
1. You will be split into a group of 3, and you will have 2 minutes to tell the other two what you think Davies is saying in Chapter 1. You will then move onto the next person. Between the 3 of you, you will try to find out why there are similarities or differences between what you thought she was saying. 2. You will then meet up with another group, and one of you will have to explain to the other group what your group thought Davies was saying and the differences only between you you have 1 minute to do this. You will then swap, and again find out why there are similarities or differences between you. Choose a representative from your group of 6, who will be called on by your tutor to say in one minute what you thought Davies was saying, and points of similarity or difference between you, and why. Your tutor will synthesise and compare the responses between all four groups, which you should note down.
35
Theories of Law
Workshop 2 Module One Natural Law Theories

SESSION 1:
CLASSICAL NATURAL LAW
SESSION 2:
SOCIAL CONTRACT NATURAL LAW THEORIES
36
Theories of Law

An understanding of the influence of Ancient Greece and Rome on our ideas of natural law An understanding of the influence of St Thomas Aquinas on current ideas about natural law An appreciation of the reasons underlying the challenges to natural law theory during the Enlightenment An understanding of the features of contemporary natural law theory An appreciation of the deep influence of these theories on law
READING Prescribed Reading: Leiboff & Thomas LTC&P Chapter 4; Ch 5 pp 145-153 Davies Chapter 3, pp 75-88 Aristotle, Nichomachean Ethics, Lloyd p137; or on CMD Cicero, De Re Publica, Lloyd pp137-8; or on CMD Aquinas, Summa Theologica, Lloyd pp138-143; or on CMD Hobbes, Leviathan, Lloyd, pp143-145, or on CMD Locke, Two Treatises of Government, Llyod, pp 145-147. Recommended Reading: Lloyd Chapter 3, pp 89-117
Alternative sources for some original materials have been placed on the CMD under the names of the theorists. A guide to help you locate these materials is available on the Blackboard site under the link to CMD Ready Reckoner
37
Theories of Law
Introducing you to natural law theories

WHAT IS NATURAL LAW THEORY? Read: Leiboff & Thomas LTC&P pp 118-122 OR LTIP pp 43-46 Davies pp 75-79, 81-84 Natural law theories aim to provide guidance for the creation and application of law, in order to ensure the creation of moral (good) law. Natural law is derived from are not dependent on individuals but on unchanging principles to which humans look to create law. Human laws created in this way will be good.
HOW LONG HAVE NATURAL INFLUENTIAL?
LAW THEORIES BEEN
Read: Leiboff & Thomas LTC&P p 120 OR LTIP pp 46-47 Natural law theories are the most ancient of all the legal theories we will look at in this unit. They go back for over 2,500 years and natural law continues to have a very strong influence now. Part of the reason for the influence of natural law theory was the close connection between church and state in the medieval period, through which the ideas of ancient Greek philosophers were adopted into church thought, and legal thought.
READING, UNDERSTANDING AND USING NATURAL LAW THEORY

Read: Leiboff & Thomas LTC&P pp 122-129 OR LTIP pp 47-52 We have to step out of our comfort zone when reading natural law theories, because we have to try and understand how theorists and philosophers work out what natural law is, and how it connects to the law we work with. A variety of methods are used to work out what natural law is the use of reason, ideas of community good, or forms of self-evidence. We suggest that you have a look at these methods briefly now, and return to this aspect of the topic after youve worked through the rest of natural law. For the moment, you might like to see how natural law turns up in law all the time, through the example we give you at pp47-49 of L&T.
Historical Natural Law Theories

RELEVANCE OF THESE THEORIES Read: Leiboff & Thomas LTC&P pp 129-131 OR LTIP pp 53-65 Davies pp 81-88 We look at these forms of natural law because it is virtually impossible to work out what legal theory is about without knowing where the ideas came from. This aspect of the topic looks at the Ancient Greek and Roman philosophers, and the later development of notions of a religious foundation to an approach to thinking about law
38
Theories of Law
and its validity for society. In doing so, we traverse a standard road in legal philosophy, to see the source of our fundamental ideas in law. We will then consider a side to natural law called natural rights, based on the notion of the social contract, as developed in the political manifestations of the Enlightenment. We will come back to these ideas in the next module: modernism and liberalism.
ANCIENT GREECE
Read: Leiboff & Thomas LTC&P pp 131-135 OR LTIP pp 53-55 Davies pp 84-88 The ancient Greek philosophers were the earliest influence on the development of a doctrine of natural law. They introduced the idea that natural law was discoverable by reason. Aristotle explained the process of discovery of natural law in terms of teleology. He argued that nature prescribes predetermined ends. Certain key ideas fundamental to classical natural law doctrines can be observed in the writings of the ancient Greek philosophers, especially Aristotle: a distinction was made between what is good by nature or the right way and what is merely good by convention. Convention designated what the law custom or by convention of the group claimed to be authoritative. Natural justice is regarded as universal and unchanging, whereas what is just by convention may vary from one community to another. human beings were expected to have a life of thoughtful understanding and thoughtful action - a life of excellence or virtue. human beings were conceived of as being by nature social and civil society was regarded as essential for the perfection of human nature (teleology) justice was an essential component for the establishment of the best kind of society conducive to human excellence. a pre-occupation with fundamental or political questions and in particular with the question of what is the best regime. This is the theme of Plato's Republic and Aristotle's Politics.
ANCIENT ROME
Read: Leiboff & Thomas LTC&P pp 135-137 OR LTIP pp 56-57 Davies pp 81-84 Natural law, though, could only be developed through correct processes, and needed to be distinguished from an individual and their personal response to nature or a deity. The Roman Stoic, Cicero, demonstrated through his explanation of the notion of natural law in De Re Publica how a correct formulation of natural law functions: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and avers from wrongdoing by its prohibitions, thus expressing the recognition of natural laws universality and immutability, and its discovery through reason.
39
Theories of Law
RELIGIOUS AND THEOLOGICAL THOMAS AQUINAS
NATURAL
LAW:
ST
Read: Leiboff & Thomas LTC&P pp 137-143 OR LTIP pp 57-61 Davies pp 86-88 Aquinas: Lloyd pp142-146, or on CMD# Aquinas connected natural law through theology and was made to depend upon the natural guidance of things on the part of God, using both. Natural law depends upon such external guidance through a natural inclination to such ends as are fitting. In his Summa Theologica Aquinas proposed a set of fundamental ideas establishing a process of natural law, against which human law must be considered: the fundamental propositions of natural law become immutable and suffer no exceptions how the natural law can always be promulgated to everyone and therefore universally obligatory there are certain principles which are naturally known, as for example that good is to be done and evil avoided the apprehension of the first principles depends upon a natural inclination, a habit born in the mind of human beings, which enables understanding to be based upon certain self-evident principles, such as that principle that evil should not be done the issuing of a command must be regulated by first principles and have as its end the ordering of the common good. Private interests are subordinated to the common good of the whole community and law is understood as an external ordering of things which concern the common good promulgated by whoever is charged with the care of the community. Human reason was conceived of as proceeding from certain common and indemonstrable principles upon which the justice of a law depends. Fundamental to this approach was the notion that human beings have a natural aptitude for virtuous action but such action can only be achieved by the practice of a certain discipline provided by the law and the imposition of penalties.
SOCIAL CONTRACT THEORIES OF NATURAL LAW

Read: Leiboff & Thomas LTC&P pp 148-153 OR LTIP pp 61-65 Hobbes and Locke: Lloyd, pp146-150, or on CMD#
A rethinking of notions of natural law can be seen in the early stage of Modern thought in the C16th and C17th, where natural law was connected to newly emerging notion of the individual and property to create the concept of natural rights. Hobbes and the social contract Natural law is adapted to provide for a Commonwealth, based on the notion of the social contract. Certain liberties are given up to a sovereign who is, in effect, the body in which all our wills reside.
40
Theories of Law
Locke and the state of nature The preservation of private property is identified by Locke as the chief end of civil society. In the state of nature, property originates through labour which separates it from the commons. Restraints are imposed upon the exercise of arbitrary legislative power since the end sought is the preservation of life, liberty and the possessions of its subjects. Rights of the subject are made to depend upon promulgated standing laws and upon the appointment of known and authorised judges. Laws are to be made by those who the people have chosen.
41
Theories of Law
Workshop Two Activities

Depending on the structure of your workshop, your tutor may move in and out of these questions, or will work through the theories and deal with some, but not all, of these questions in the time available.
Activity One
Read the decisions of Chesterman J in Re Gray, Muir J in Baker v State of Queensland and Atkinson J in Re Denman (copies of each case are available on Blackboard > Learning Resources > Cases). We will be using these three cases as a basis for our discussion throughout the semester.
1. Read the story of Antigone in Davies. o Is there a difference between Antigones personal relationship to a deity and natural law? Can you explain your reason for your answer? o What would Aristotle and Cicero tell Antigone? 2. What would St Thomas Aquinas say about a law that allow a person to harvest his or her spouses sperm or ova after death? o A clue: to answer this, you need to work through his structure, almost like you would a law problem. You cannot answer this question by saying that the law is just or unjust 3. A group of protesters taking part in an unlawful street march throws a paint bomb, which hits your house. Should you be able to take action against them? 1. See what ideas you can get from Hobbes and Locke. 4. In Re Gray, Chesterman J quotes Griffith CJ in Doodeward v Spence:1 It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires the right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial . . . (emphasis added). Contrast this Lockean argument with the classical natural law arguments discussed in relation to the story of Antigone in Q1.
(1908) 6 CLR 406, 414.

42
Theories of Law
Activity Two (2010 Exam Q4)

In R v Williamson [2009] QSC 434, Byrne SJA had to rule on the admissibility of evidence that police had uncovered after illegally forcing entry into two sheds without a warrant. The sheds contained highly prejudicial evidence: [3] Inside Shed 20 was about $4000 in cash, a small quantity of cocaine, more than five kilograms of high grade cannabis packaged for sale in a variety of weights, tablets and substances containing more than 200 grams of Methylamphetamine, 1500 light brown tablets containing in excess of 26 grams of Methylenedioxyethylamphetamine and more than 80 grams of Methylenedioxymethamphetamine, cannabis seeds, a .45 calibre pistol, ammunition and electronic scales (weights are estimated pure). [4] In Shed 28, more than $500,000 in cash was discovered. The Judge found that the decision not to obtain a warrant was a calculated disregard of the law. In determining whether to exercise the Court's discretion to exclude the evidence, Byrne SJA weighed the need to ensure that the law was followed by police against the threat to society if the evidence was not admitted: [51] The deliberate disregard of the law by those whose duty it is to enforce it ... is a highly significant factor, favouring exclusion of evidence of what was found in Sheds 20 and 28. [52] So, too, does the consideration that a search warrant could easily have been obtained, and in circumstances where a delay in entering while the warrant was obtained could not have resulted in concealment or destruction of shed contents. [53]But what was found in the sheds seems vital to the prosecution case. [54] In the circumstances, exclusion of evidence of the shed contents could well let a man guilty of serious crimes go free. (Mr Farr acknowledges, appropriately enough, that a conviction after a trial in respect of this trafficking charge would attract a sentence of at least ten years imprisonment.) [55] Here, then, there is every chance that suppression of the truth would impose substantial social costs. [56] Weighing the pertinent factors, the balance decidedly favours refusal of the application to exclude evidence about the shed contents. Consider Byrne SJA's reasoning in light of the need to see justice done, to deter wrongdoing by the state, and to ensure the integrity of the judicial system, with reference to historical natural law theories.
43
Theories of Law
44
Theories of Law
Workshop 3 Module One Natural Law Theories

Contemporary natural law theories
45
Theories of Law

An understanding of the influence of Ancient Greece and Rome on our ideas of natural law An understanding of the influence of St Thomas Aquinas on current ideas about natural law An appreciation of the reasons underlying the challenges to natural law theory during the Enlightenment An understanding of the features of contemporary natural law theory An appreciation of the deep influence of these theories on law
READING Prescribed Reading: Leiboff & Thomas LTC&P Chapter 5 pp 153-179 Davies Chapter 3, pp 88-99, 115-123 Lloyd, The Nineteenth and Twentieth Centuries, pp 117-136 (on CMD) Fuller, The morality of law, Lloyd, pp154-167 or on CMD Finnis, Natural Law and Natural Rights, Lloyd pp 168-188, or on CMD Recommended Reading: Lloyd, remainder of Chapter 3 Wacks, Chapter 5 Alternative sources for some original materials have been placed on the CMD under the names of the theorists. A guide to help you locate these materials is available on the Blackboard site under the link to CMD Ready Reckoner
46
Theories of Law
A GAP IN NATURAL LAW

Read: Leiboff & Thomas LTC&P pp 153-158 OR LTIP p 66
By the C18th and early C19th natural law theory gave way to the legal theory known as legal positivism. Hand in glove with the rise of modernism and liberal philosophy, positivism divorced questions of good and morality from the validity of law itself. However, natural law kept its place in the common law through Blackstones Commentaries.
Contemporary Natural Law Theories

A TWENTIETH CENTURY RE-EMERGENCE OF NATURAL LAW Read: Leiboff & Thomas LTC&P pp 158-160 OR LTIP p 66-67 Davies pp 79-81, 119-121 Dissatisfaction with the formalistic approach to thinking about law which characterised legal positivism, and its apparent uses to justify immoral and reprehensible regimes and legal practices, saw a re-emergence of a regard for the values and approaches of natural law theory in the mid-C20th. These ideas started to be reconsidered, especially after the uses and abuses of law in Soviet and Nazi regimes. Some of the writings you will be reading expressly attempt to deal with law's role in resolving the ethical dilemmas associated with law being used as a tool of oppression.
REVIVING ARISTOTELEAN COMMUNITIES: LON FULLER Read: Leiboff & Thomas LTC&P pp 160-164 OR LTIP pp 67-70 Fuller: Lloyd, pp160-163, 168-171 or on CMD# The American legal philosopher whose writings span the period of World War Two until the 1970's, Lon Fuller developed an idea of 'procedural naturalism', in which the primary issue is one of order or law compared with good order in which law corresponds with justice or morality. He identified a morality external to law, namely that the authority to make law must be supported by moral attitudes that accord to it the competency which it claims. In addition there is an "inner morality of law" in so far as there cannot be law until there is an acceptance of the inner morality of law itself. Fuller argues there can be such a departure from the inner morality of law and the morality of order that a regime will cease to constitute a legal system. Fuller discusses how a total failure in any one of eight directions does not result in a legal system of law but results in no legal system at all. Law is presented by Fuller as a matter of providing the citizen with a sound and stable framework for interaction with one another. In maintaining a legal system he suggests that there are interlocking responsibilities of government towards the citizen and of the citizen towards the government. Law is presented as a facility which enables human beings to live a satisfactory life in common and in order for this facility to serve its intended beneficiaries it must be used well. The internal morality of law is used by Fuller to describe this responsibility.
47
Theories of Law
A MINIMUM CONTENT OF NATURAL LAW: HLA HART

Read: Leiboff & Thomas LTC&P pp 164-167 OR LTIP pp71-72 Hart: Lloyd, pp120-132, pp 170-171 or on CMD# HLA Hart, who engaged in a long-standing debate with Fuller, is best known for revitalising positivism in the C20th. However, he was to acknowledge at some level the need for what he called 'a minimum content of natural law' underpinning a positivist system of legal thought. Harts minimum content has more in common with Hobbes and Locke than any other part of the natural law tradition; it assumed that the proper end of human activity is survival; this rests on the simple contingent fact that most men (and women) most of the time wish to continue in existence (pp 188-89 of The Concept of Law). Hart concludes that there are certain rules of conduct which any social organisation must conform with if it is to be viable, so it wont be a suicide club. This is what Hart calls the minimum content of natural law. The minimum content of natural law proposed by Hart is based on: human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will. Hart argues that, since all people are tempted at times to prefer their own immediate interests and in the absence of special arrangements for their detection and punishment, many would succumb to the temptation. Sanctions are therefore a natural necessity as a support for the minimum forms of protection for persons, property and promises. Hart rejects the idea that a law contravening the basic principles of morality should be invalid on that basis. Hart maintains that beyond the minimum contract of natural law, the purposes for which human beings live in society are too conflicting and variable to justify an argument that there must be some further overlap of legal rules and moral standards.
REVIVING AQUINAS: FINNIS Read: Leiboff & Thomas LTC&P pp 167-178 OR LTIP pp72-80 Davies pp 88-95, 119-122 Finnis: Lloyd pp 132-140; pp 171-195, or on CMD# One of the most influential developments in contemporary natural law theory is its reinvigoration by John Finnis in his book, Natural Law and Natural Rights. His theory of natural law has been expounded in terms of the requirements of practical reasonableness in relation to the good of human beings, thus 'rediscovering' notions of natural law last seen with Aquinas. Finnis seeks to understand the relationship between the particular laws of particular societies and the principles of practical reasonableness; positing laws can and should be guided by moral principles and rules and that those moral principles are a matter of objective reasonableness. Natural law is used by Finnis to indicate the basic forms of human flourishing as goods to be pursued and realised. These goods are used by everyone who considers what to do, however unsound his or her conclusions. It is the principles of practical reasonableness which provide the criteria for distinguishing between acts which are reasonable and acts that are unreasonable, that is between ways of acting that are morally right or wrong. This leads to the formulation of a set of general moral
48
Theories of Law
standards, which informs the creation of good law. Finnis follows in the footsteps of Aristotle and Aquinas, by relating reason and teleology to the creation of these standards, by requiring: o A rational plan of life realisable only by one who intelligently directs, focuses and controls his or her urges, inclinations and impulses; o the choice of action should not damage or impede the realisation or participation in any one or more of the basic forms of human good; it requires the favouring and fostering of the common good of one's communities and that one must act in accordance with one's conscience. Are unjust laws law? Finnis takes the view that the main responsibility of the ruler is to further the common good: o This authority is defectively used if stipulations are made for the rulers own or his or her friends party or factions or out of malice against some group; o Injustice may result where the ruler denies to one, some or everyone an absolute human right consistent with a due exercise of human rights and the same human rights by other persons. Are you obliged to obey a bad law? Finnis approaches the issue from a moral sense and poses the question of whether a particular unjust law imposes any moral obligation to conform to it given that the legal system is by and large just: o When assessing your legal obligations in the moral sense you are entitled to discount laws which are unjust, which are against any of the basic principles of practical reasonableness. But this does not mean that a law is deprived of moral authority when those enacting it have improper motives, provided that the law is for the common good. o Disobedience of a law may destroy the effectiveness of other laws or respect for the authority of a generally desirable rule or constitution, which requires compliance as is necessary to avoid bringing the law as a whole into contempt.
49
Theories of Law
Finnis is prepared to say that there may be an obligation to conform to some unjust laws in order to uphold respect for the legal system as a whole. Finnis natural law therefore does not deny legal validity to iniquitous rules; unjust laws are accorded validity in the sense of acceptance by courts as guides to judicial decision or in the sense of satisfying criteria laid down by constitutional or legal rules. Criticising Finnis A considerable debate about Finnis, his methods, assumptions and approaches towards natural law is contained in Davies and in Lloyd. His debate should set the stage for some aspects of thinking about law for you - why can such divergent views emerge in something which seems as stable as law?
CRITICAL RESPONSES TO NATURAL LAW THEORIES

Read: Leiboff & Thomas LTC&P p 179 OR LTIP pp 46, 49-52, 80 Davies generally Why do you think that there is such a strong set of criticisms of natural law theories? You can draw on some of the main forms of criticism from your reading for this workshop.
50
Theories of Law
Workshop Three Activities

Session 1 Contemporary Natural Law Theories
Syndicate question
These are the syndicate leadership questions. Syndicate leaders will need to read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard) and guide their groups through these questions:
1. Consider the problem raised by the posthumous reproduction cases. Would Finnis think that a law that prohibits post mortem harvesting was a good or a bad law? 2. You will need to look at the structure Finnis puts in place to decide what constitutes natural law. 3. Would you be morally entitled to disobey such a law?
2. Read the parable of King Rex. In it, Fuller gives an account of several routes of failure for any legal system. o Why does Fuller frame his inner morality of law as having primarily procedural requirements? o Hart and others have argued that Fullers principles are really principles of efficient legal ordering, rather than moral principles. Would it be possible for an evil government to comply with Fullers inner morality of law?
51
Theories of Law
Session 2 Natural Law Theories and human rights Read the following speech: Julian Burnside QC, Its Time. A Bill of Rights for Australia (2008, International Human Rights Day Address) <http://www.julianburnside.com.au/It's%20Time.htm>. We will be using this argument in favour of a substantive Bill of Rights as a basis for our discussion throughout the semester.
1. Burnside alludes to a quote from A V Diceys Introduction to the Law of the Constitution. The full quote is: Lawyers are apt to speak as though the legislature were omnipotent, as they do not require to go beyond its decisions. It is, of course, omnipotent in the sense that it can make whatever laws it pleases, inasmuch as a law means any rule which has been made by the legislature. But from the scientific point of view, the power of the legislature is of course strictly limited. It is limited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blueeyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it. In the British tradition of parliamentary sovereignty, representative and responsible government is often thought to be sufficient to protect the substantive rights of citizens. Do you think this faith in democracy and democratic institutions is justified? Why or why not? Try to think of some examples from Australian law and politics to back up your reasoning. 2. Burnside uses the story of Antigone to suggest that our legal system does not adequately protect rights that are innate in us all as humans. Critics of natural law theories suggest that rights only arise through a particular social and political context, and can change over time. As we will see, this forms a great divide between natural law and positivist approaches. Do you think there are a set of rights which should be universally accepted by all societies, at all times? o Also compare here the differences between substantive conceptions of rights and the procedural approach taken by Fuller.
52
Theories of Law
Workshop 4 Module Two Modern Legal Thought: Historical and conventional approaches
SESSION 1: MODERNISM, LIBERALISM, LAW AS SCIENCE SESSION 2: BENTHAM AND AUSTIN
53
Theories of Law

a basic understanding of the influence of modernity on legal thought an understanding of the way liberal theory has influenced law, and the implications of this influence an appreciation of the way that Enlightenment based scientific methods influenced development in legal theory and the practice of law a basic understanding of the meaning of legal positivism and its influence in practice an understanding of principles of classical theories of positivism: Bentham & Austin an awareness of the challenges which have emerged to these theories and methods
General READING Prescribed Reading: Davies pp 6-9, 12-15, 40-45, 75-81, 99-101, 104-106, 112-119, Sugarman D, A Hatred of Disorder in Fitzpatrick, P, Dangerous Supplements (on CMD) Wacks pp 45-46, 66-68,184-188 (on CMD) Recommended Reading: Lloyd pp 5-10, 28-36, 199-289 (7th ed); 11-14, 24-32, 247-303 (8th ed). Further Reading: SESSION ONE Prescribed Reading: Modernism Leiboff & Thomas LTC&P Ch 6 pp181-203 OR LTIP Chapter 4 pp 83-97 Davies pp 6-9, 288-293, 327-331 Recommended Reading: Lloyd pp 118-123, 358-367 (7th ed); 113-117, 405-414 (8th ed) Davies Chapter 2
Prescribed Reading: Liberalism Leiboff & Thomas LTC&P Ch7 pp 221-238 OR LTIP Chapter 5 pp 109-122 Davies pp 203-206, 228-229 Bottomley, S & Parker, S, Law in Context (2nd ed) Chapter 2 (on CMD) Recommended Reading: Lloyd pp 111-118
54
Theories of Law
Further Reading: Lloyd pp 534-539, 566-593 7th ed; 583-603 632-659 (8th ed)
SESSION TWO Prescribed Reading: Bentham Leiboff & Thomas LTC&P pp 262-275 OR LTIP Chapter 6 pp 143-151 Davies pp 64-69 Lloyd pp 200-242 (7th ed); 247-255, 269-291 (8th ed)
Prescribed Reading: Austin Leiboff & Thomas LTC&P pp 276-291 OR LTIP Chapter 6 pp 151-165 Davies pp 102-104 Lloyd, pp 249, 251-254 (7th ed); 255-269 (8th ed)
Modernity Read: Leiboff & Thomas LTC&P pp181-196 OR LTIP Chapter 4 pp 83-94 Davies pp 6-9, 288-293, 327-331 In this workshop, we will look at the characteristics of Modernism. In looking at things in a Modernist framework, it will become apparent that certain characteristics typify the way thought is organised. In particular, Modernist philosophy insists on the existence of an organising theory, or metanarrative, from which objective principles are derived. This involves a particular way of thinking and understanding, which is very normal for us, and which we take as given. In order to understand this concept, we will look at some of the founding ideas of modernism, in particular, Descartes (1596-1650 - he was French) famous formula: I think therefore I am (otherwise know as the cogito). In particular, we will see how this formula allowed for the development of the rational human being, observing the world, to see the world objectively. Cartesian thought aimed for certainty and the belief that true knowledge must come from human reason alone consider how this compares with natural law thought. It resulted in what has become a very familiar and normal concept for us. Modernism has been the dominant mode of thinking in Western thought over the last two centuries, and is the theory which typifies the way that law is seen in theoretical terms. These ideas came to prominence during the historical period known as the Enlightenment or the Age of Reason, which resulted in a radical change in the way in which people thought about their life status, and ways of thinking. The rise of the individual, knowing subject as the centre of thought resulted. Among other things, it resulted in a shift of approach towards how people should be rewarded, from privilege to talent and hard work as a social ideal. These ideals are expressed in much of the law we have. It is categorised by a number of beliefs, such as science, progress, liberal ideas, and expressly for law, and a reliance on legal positivism as a founding philosophy.
Theories of Law
The renowned legal historian, Sir Henry Maine, termed the legal manifestation of this change as being from the notion of status to one of contract. In other words, this means that the legal subject is no longer given rights because of who they are, but rather it was assumed that everyone was a free-thinking rational individual who had mastery over their own condition, and were therefore free to enter into legal arrangements for themselves. It also assumed that people were no longer merely subjects, but were responsible in part for how they were governed. You can read further on this topic in Lloyds (Chapter 11 in 7th ed Historical and Anthropological Jurisprudence) We will begin to look at the way that the law finds some things important, and we will look at the theoretical underpinnings which underlie concepts of the objective, which is typically modernist in its approach. Does it surprise you that there is such a thing as an underpinning theory in which the law operates? If there is such an underpinning theory, we may be tempted to ask whether or not certain assumptions underlie Western legal systems. We will start to explore this idea over the next few weeks. In particular, consider the fundamental principle that typifies our beliefs about the operation of law: namely that it tries to discover absolute grounds for knowledge. Thus, the application of a set of abstract principles, such as those found through the cases, will typify the situation for all like cases, irrespective of context and circumstance.
56
Theories of Law
Liberal Thought Read: Leiboff & Thomas LTC&P Ch 7 pp 221-238 OR LTIP Chapter 5 pp 109122 Davies pp 203-206, 228-230 Bottomley, S & Parker, S, Law in Context (2nd ed) Chapter 2 Liberalism is the main philosophical concept underpinning the 20th century and the philosophy that applies to much of our law, whether the philosophical statement is express or implied. It is the philosophical expression of modernity, and you will have already seen a number of the characteristics of liberalism referred to above. The things we take for granted, such as the separation of powers, the notions of equality and the like, are all expressions of liberalism. In this session, we will concentrate on a particular form of liberalism - classical liberalism. In particular, you should take notice of the main elements of liberal thought as set out in this reading: liberty, individualism, equality, justice, rights, utilitarianism, and rationality. You will also find it useful to look at the manifestations of liberalism, to see how liberalism works in a practical way. The main features of liberalism underpin the way we see our law in a practical way as a protection of rights and freedoms. Liberalism stresses the paramountcy of individual freedom. Concepts of freedom are very familiar to lawyers - think for a moment about ideas like freedom of contract, and other ideas like the paramountcy of human rights and freedoms. Liberalism and its manifestations in law Many of these characteristics are accepted as axiomatic in a legal context. These ideas include ideas such as the: consent to government otherwise there is no reason for government to interfere in lives importance of autonomous individual limited state intervention public/private distinction framework for individuals to regulate their lives freedom of contract human rights and freedoms absence of the State in lives eg admin law, constitutional law focus on property As an example, you may wish to consider the way that contract law operates as a foundation for the consideration of liberalism. Think also about the interference with individual rights and freedoms, as assumed in law, either through decisions of the courts, or legislative intervention. You may also want to think about the assumptions we have about freely assumed bargains, and our responses to the interference of government in our lives, through legislative initiatives which impinge on those
57
Theories of Law
freedoms, such as trade practices legislation, and the like. Think about this again when we look at Marxian responses to Liberalism. How the law defines limits: liberalism and its response to the conflicts of individuals In law, individual freedoms are expressed as inalienable rights. Even liberal communities will, however, produce individuals whose rights collide. The right to swing your arm ends where you hit my nose: hence the need for the State to order rights through law. Your study of contract and torts shows you how the law has considered the limitations of these freedoms, as does the intervention of the State in criminal law. However, if liberalism allows for the proper intervention of the State in organising these competing rights according to a set order, does it explain the theoretical basis for creating that order? Does it make clear the conditions in which my right takes precedence over yours, and vice versa, or does it merely accept the way that the law has developed these rights over time? Liberalism's Trajectory: the impact of theory into practice Liberalism's emphasis on limited government intervention in the market (and hence in individual freedom) was revived in the 1970s as a response to and critique of the Welfare State. These libertarians have been called "The New Right", the foremost proponents of which are Nozick (Anarchy, State and Utopia) and Rawls, and Hayek in the 1980s. A basic description of these theorists is contained in your prescribed reading, and the further reading you can do for this week provides you with more material to understand the ideas of these theorists. Consistent with the libertarian goal of individual freedom is the absence of the State in the regulation of the market. If you look at the Bottomley extract in your prescribed reading for this week, you will get a good overview of the way this works. The free market is the centrepiece of a free democracy. This relies on individual self-interest and is created by competition, relying on the Smithian law of supply and demand (explicated in his Inquiry into the Causes of the Wealth of Nations, 1776). The market regulates social factors as much as it regulates economic factors. Hence, the role of the State is limited to intervention upholding the free market, and necessary public works unable to be undertaken profitably in the public sector. Where these interventions operate, how does law respond to any fetters on the market? Liberalism in the late 20th century This relationship between liberalism and the market is an example of classic modes of liberal thought, is something you will recognise as underpinning law: you may wish to ask yourself which are the most valued areas of law in terms of study and practice? You may wish to consider the historical contexts underlying the operation of liberal practices at the end of the twentieth century. Many of the theories of Nozick and others rely heavily on notions which developed in the seventeenth and eighteenth centuries - Hobbes (1588 - 1679) and Locke (1632 - 1704) - as the theoretical foundation for their ideas. They have done this, though, without analysis of the problems encountered in applying these theories unaltered to twentieth-century contexts. This uncritical reliance gives rise to other questions about assumptions in
58
Theories of Law
liberalism which remain unexplicated, which are perhaps assumed in the conventional modes of legal reasoning. For instance, how often do we just accept something as given in law, even if the circumstances in which, say, a rule grew up in was vastly different from our own circumstances? Liberalism and Modernity Theories of law have had in common a search for the just solution. This often means an attempt to isolate the objective and the unbiased, or, in other words, a good and proper truth. This search has traditionally taken the path of rationality, scientific reasoning, and the methods of the Enlightenment. Such a belief in the one true path, the organising theory, the objective process and conclusion may be characterised as Modernist. Liberalism, for its belief in the pre-eminence of individual freedom (and market theory in realising that freedom), may also be placed within Modernity. As we will see, one of the most influential and sustained critiques of liberalism (Marxism) also takes place in the language of Modernity.
Law as Science Read: Leiboff & Thomas LTC&P pp 200-203 OR LTIP Chapter 4 pp 96-97 Davies pp 125-157 Science is considered to be the archetype of knowledge, the fountain of all knowledge which owes no allegiance to any other discipline. It is characterised by being neutral, rational and objective. You will recognise these ideals from the notions of modernity and liberalism. We will consider the assumptions of rationality and objectivity that underlie the scientific endeavour, and the impact this has for law. Looking at law in a scientific way underscores most of our study and practice of law, as can be seen in the methods of legal reasoning and legal research. The scientific approach to law is made clear early in our law study: we strive to look for the objective rather than the subjective. You can see how this relates to the way that science is seen to be value-free, and apparently neutral. These are also methods which grew up from the Enlightenment, and are characteristic of modernism. Think about the way that these are related. Think also about the ways that this is an expression of liberalism. We will then go on to consider the empirical mode of thought and empiricism which are typical of the modes of thought in our legal tradition (these terms are discussed in your prescribed reading). To be empirical is to see something and draw conclusions from what you see, just like when we find facts and apply them to the law. This is related also to the way we obtain facts in an objective way, and the way we go about proving them in court in a scientific way. Look back to your reading for the last two weeks, so that you can now see what is meant by these terms as they apply to the positivists. We will then go on to explore the change which occurred to law teaching in the 19th century. This period was marked by a desire to counteract the impact of common law theory. The famous law teachers of this period systematised law textbooks in
59
Theories of Law
categories with which we are familiar, developed general principles, set up notions of leading cases, and the idea of best law. In other words, it was an attempt to organise what had been a previously messy way of seeing the law - (Benthams shapeless heap of odds and ends) - into a rational, coherent and sensible method. We will see these notions expressed in the way we do law we follow the appropriate method, keep the law untainted by other factors, and desire an outcome of objective truth and objective reality.
Positivism Read: Leiboff & Thomas LTC&P pp 255-262 OR LTIP Chapter 4 pp 94-95; Chapter 6 pp 137-143 Davies pp 75-81 What do we mean by positivism? No, we dont mean positive and negative. When we talk about positivism in this sense we mean something that is posited, positioned, put down (as in placed, not sent to the vet, though undoubtedly you would like to see it put down in that other sense). You will undoubtedly be familiar with positivism, even if you have not heard the word before. It is the theory of law which has underpinned the way you have been taught and learnt law. But that does not mean that you will have heard the ideas of positivism expressed in this way before: it is generally the case that these ideas are taken as given in the way we see law in Anglo-Australian jurisdictions. As we contemplate the ideas of positivism, you will be helped if you bear in mind the concepts we looked at last week and in the first part of this session. In particular, it will become apparent to you that the development of positivism in law represented a departure from natural law and unsystematised common law. The theory was espoused during the 19th century during the age of economic expansion when advocates of legal sovereignty were concerned to constitute the Nation State as the supreme power, an independent legal entity reposed with unlimited capacity to make new laws. The rise of positivism also looked forward to, and made way for the development of the new science of law.
WHAT ARE POSITIVISM?
THE
MAIN
CHARACTERISTICS
OF
CLASSICAL
Positivism concentrates on the law as it is and where it came from in a formal way: in a sense, you can adapt Gertrude Steins a rose is a rose is a rose to a law is law is law to explain the ideas of positivism in a very crude way. In other words, positivism sets out to look at law as law, and to see it on its own terms, not mixed up with other matter, such as ethics, morals or other factors which may relate to, but are not, laws. Positivist legal theorists confine their analysis of the law to a description of the law as it is, not as it ought to be. It is not possible to do this without the separation of law from morality, politics, history, economics, and sociology, which is the cornerstone of legal positivism. It will become apparent, then, that positivism also
60
Theories of Law
encourages the notion of law as scientific or rational standard, which scientific offer the possibility of a claim to objectivity and neutrality. Reaction to natural law You will not be surprised, then to find out that positivism as it emerged in the early 19th century was a reaction to natural law. If you look back to the work of Hume, you will see some of the seeds of this reaction in operation. Positivism began with the best of intentions: to overcome the perceived problems of another theory of law. Law and morality A number of features of positivism have resulted, borne of that original reaction of positivism to the earlier theory. One is the split between morality and law, a debate we will return to later. Positivist theory divorces the question of the legitimacy of law from morality, and treats them as separate area of study. Is/ought Related to this is a standard feature of this reaction, which is drawn from Hume: the is/ought distinction. This distinction raises a concern about drawing an inference from facts to norms. It is argued, adopting Hume, that it is not logically possible to deduce a norm of conduct about what one ought to do (a moral obligation) from a statement about the nature of humankind (an empirical fact). That is to say, you cannot derive legal propositions from facts in the natural world. Positivism and modernity You will remember from the discussion of modernity last week, during the Age of Reason (or the Period of Enlightenment), the advent of science constituted the subject as a rational being with the capacity for logical enquiry. This approach underpins the way positivism sets up its analytical model. Positivist theorists therefore advocated a logic of law, a scientific analysis that was aimed to describe the objective fact of existing law. Law was created by human beings, whether judicially or legislatively or otherwise; no further questions were entered into. There was no need to look to nature or to God's plan. Instead, they set out to provide a definition or description by which a standard for human action, a norm, might be adjudged to be a law, without looking at other factors. For instance, a standard question, which would be valid for a positivist to address, would be whether the law was validly enacted. The question has to focus on conceptual tools of analysis by which is it possible to determine whether or not a norm of conduct bears the status of law. Law and sovereignty/command In their examination of the foundation or source of legal authority, positivists focus upon the concept of sovereignty, the formal structure of law, its constituent elements, command, sanction or punishment, coercion. We will look in more detail at how this works when we look specifically at Austin and Bentham, and Hart as positivist.
61
Theories of Law
Bentham Read: Leiboff & Thomas LTC&P pp 262-275 OR LTIP Chapter 6 pp 143-151 Davies pp 64-69 Lloyd pp200-203, 205-219, 221-224, 230-242 Jeremy Bentham (1748-1832) set out what we now identify as the basis of classical positivism, although it was through the writings of Austin that his theories first came to law (it was not until 1970 that a definitive edition of his work was published - does this tell us anything about the way we see the world and knowledge?). He was a strong critic of the common law, an antiquated system constructed upon artifice and replete with anomalies, and thus broke with natural law precepts which underpinned much of the idea of the common law as expressed by Blackstone. He did not like lawyers, and he did not like judges. Bentham aimed to subject the law to the new ideas which developed in the Enlightenment. The notions you saw last week, as expressed in liberal theory, were also the ideas which Bentham brought to bear on the way that law should be analysed. He was concerned to devise a scientific theory of legislation, and particularly keen on the idea of codification, and advocated the enactment of a scientific code of law to enable reform of substantive law. Trivia If you go to the main building at University College, London, which Bentham founded, you will see him sitting in a glass case, wearing his clothes, although his head is a replica - the original is sitting in a safe, having been stolen on many occasions. This is his auto-icon; he is mummified. This may explain some aspects of Bentham to you - what a scientific, unemotional thing to do with yourself when you die.
Bentham dealt with two forms of theories of law in his writings: law to be reformed (this can be termed censorial, which deals with what ought to be), and law to be explained within its bounds (expositorial, which deals with what is). Within this framework, the main facets of Benthams positivist ideas can be identified: sovereignty, command and sanction. In relation to the sovereign (not a king, but rather, the body people identify as that to which they are obedient), it is the fact of this habit of obedience that is important, and not any of the underlying political or social causes. This forms the foundation for the command of the sovereign. This is merely the existence of laws, which are defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed. However, what will take them beyond a mere mouthing of words is the need for some form of sanction without which there is no law. Bentham developed a "logic of imperatives" which identified laws as constituting either commands or prohibitions or human action. If an action was either commanded or prohibited, then the subject fell under a legal duty. This concept is broad, and will extend to both prohibitions and permissions, rather than sanctions in a more limited
62
Theories of Law
sense. From this, you will see that there is no need, within this type of theory, to look outside law and its bounds in order to analyse the law and its validity. Censorial or ought However, Bentham did not ignore the censorial, or ought, aspect of law, which can be seen to be directly linked to the expositorial theory of law. It was just that it was dealt with separately, in an analytical sense. The linking point can be seen in the principle of utilitarianism, a scientific or rational standard by which every action could be judged to be right or wrong solely by reference to its consequence in terms of human happiness. As you will remember, the notion of utility is one of the major tenets of liberal theory. A short explanation of the utility principle is warranted. Be aware that the simplicity of the principle and the equation for which it is famous - the felicific calculus - are ideas which were of their time, and their science has been discredited in a psychological sense. The equation does not add up well. Bentham's view of human nature was that it should be analysed in terms of pleasure and pain rather than some innate capacity for a life of excellence or virtue. He described natural rights as "nonsense upon stilts" flawed by their fictitious character lost in rhetoric about what ought to be, rather than what is. He believed that human beings were motivated by their desire for pleasures and to avoid pain. The utilitarian test determined whether any particular action was right or wrong. This "felicific calculus" purported to measure the value of particular lots of pleasure or pain by reference to seven criteria: intensity, duration, certainty, propinquity, fecundity, purity and extent, and balanced the in the equation "the greatest happiness of the greatest number which was the only reason behind the making of any law by the legislature. Can you see a fallacy in the equation?
John Austin Read: Leiboff & Thomas LTC&P pp 276-291 OR LTIP Chapter 6 pp 151-165 Davies pp 102-104 Lloyd, 249, 251-254 Austin (1790-1859) took on board and developed many of Benthams ideas, and until the publication of Benthams work, provided the main exposition of positivism in the common law world. Lloyd and Lloyd make it clear whom they believe was the initiator of the main ideas of positivism, and Austin clearly applied Bentham's analytical analysis. Austin did not extend his enquiry to points beyond a descriptive view of law. He did not move into Benthams censorial analysis. He only looked at the is, which, of course, is the way we usually contemplate law as we study it. You can see the extent of his influence in the way we are taught, study and practice law: looking beyond the black letter has only recently been considered valid aspects of the study of law: The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. You can see that Austin adopted the
63
Theories of Law
pattern established by Bentham, and dealt with law on the foundation of sovereignty, command and sanction. Austins version of sovereignty again thinks in terms of some kind of pre-existing fact: the habitual obedience requirement as we saw in Bentham, although Austin extended this to a notion of a sovereign answerable to no-one else (you may, as you will see writers in this area do, wonder how this could be so). The effect is that if you know who has the power to enact laws, you have to go no further in your inquiry into the sovereign. The distinction between laws properly and improperly so called relates to Austins concept of command. Simply stated, a law that is not a command is not a proper law. He then limited these proper laws in a narrow way. Laws were those commands issued by the sovereign which laid down general and continuing rules to guide a subject's conduct. In addition, to ensure that the commands were law, they had to be backed by a sanction. He said that: It is the power and purpose of inflicting eventual evil ... which gives to the expression of a wish the name of command. It may be that Austin only had a criminal form of law in mind in having developed his notion of sanction: unlike Bentham, Austin has oversimplified this concept - Bentham also provided for non-imperative forms of law. The conclusion is simply stated: if a law has been properly enacted, it will be a law if backed by appropriate sanctions.
64
Theories of Law
Workshop Four Activities

Activity One
Whole Group
Session 1 Modernism, Liberalism, Law as Science 1. Read the posthumous reproduction cases again (see workshop 2). o Do the judgements in the cases reflect a liberal view of law? o What would liberal theory tell us the law should be in such cases? o How does this conflict with the natural law approaches we saw over the last two weeks?
Activity Two
Syndicate Bentham and Austin
These are the syndicate leadership questions. Syndicate leaders will need to read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard) and guide their groups through these questions:
1. What would Bentham think of the way in which these cases were decided? 2. How would Bentham's censorial jurisprudence resolve the issue of whether the partner of a deceased person should be entitled to collect and use reproductive material from the corpse?
65
Theories of Law
Workshop 5 Module Two Modern Legal Thought: Historical and conventional approaches
SESSION 1: HART SESSION 2: KELSEN
66
Theories of Law

a an understanding of the work of Hart as positivist an understanding of the ideas of Kelsen's pure theory of law a recognition of the major differences between Hart and Kelsen
READING Prescribed Reading: Hart Leiboff & Thomas LTC&P Ch 9 OR LTIP Chapter 7 pp 167-182 Davies pp 12-15, 19-21, 104-106 Lloyd pp 331-350, 451-481 (7th ed); 371-391, 510-539 (8th ed). Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, pp 87-106 (on CMD) Hart, H L A, The Concept of Law, Clarendon Press, Oxford, 1994, Ch 5 (pp 79-99) (on CMD) Further Reading: Lloyd pp 367-396, 481-510 (7th ed); 414-421, 444-461, 539-569 (8th ed) Prescribed Reading: Kelsen Leiboff & Thomas LTC&P pp 203-220 OR LTIP pp 96-106, re-read pp 83-95 Davies pp 6-9, 106-123, 141-142 Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, pp 106-109 Lloyd pp 291-302 (7th ed); 341-352 (8th ed) Further Reading: Lloyd Chapter 5 Alternative sources for source materials have been placed on the CMD under the names of the theorists. A guide is available on the Blackboard site.
Hart Read: Leiboff & Thomas LTC&P pp 295-297 OR LTIP Chapter 7 pp 167-182 Davies pp 12-15, 19-21, 104-106 Lloyd pp 331-350, 451-481 (7th ed); 371-391, 510-539 (8th ed). Cotterrell, pp 87-106 Hart, H L A, The Concept of Law, Chapter 5 (pp 79-99) You have already met Hart when you studied his minimum content of natural law. Hart is usually studied as a positivist, and we will spend part of this session seeing
67
Theories of Law
how his theory of positivism worked. You can, for yourselves, then fit his minimum content of natural law into the positivist schema. When we look at Dworkin later in semester, you may want to reconsider Hart in the context of Dworkins criticisms of his theories. Hart, according to Lloyd and Freeman, developed a contemporary (in the 1960s) form of analytical jurisprudence that England had been lacking. Hart saw the problems inherent in Austinian positivism and moved English jurisprudence forward, in the process building on Austins work. You will see that there is no room for command or sovereignty in Harts theory, as was found in Austins version of positivism. Rules (and the recognition of those rules) form the system of law.
LAW AS A SYSTEM OF RULES Read: Leiboff & Thomas LTC&P pp 297-308 OR LTIP Chapter 7pp 167-176 Hart, H L A, The Concept of Law, Chapter 5 (pp 79-99) From this, you will see that Hart sees law as a system of rules. Law as a system of rules is part of a wider system of rules, which commences with social rules (see how Margaret Davies considers Harts social rules as they are seen in the rules of chess or cricket or hockey). The next point of departure in the system, as an offshoot of social rules, are obligation rules. The obligation rules ensure there is room in this system for morals. They enable scope for the minimum content of natural law which recognises moral rules. Under these general ideas of social and obligation rules are the rules which enable the functioning and operation of the legal system. The concept of obligation rules underpins legal rules. Legal rules are then divided it into two types: primary rules and secondary rules. Hart typified a legal system of primary rules as a primitive system of law, one in which sets out certain forms of proscribed behaviour. (Margaret Davies asks where he did his research on primitive legal systems - why should she ask this?) Secondary rules, on the other hand, are found in sophisticated legal systems (such as Englands), which instead of proscribing behaviour, enabled the functioning of the system. Under this heading are the rules of change and adjudication. In addition, central to the functioning of the system is the rule of recognition, which enables those involved in the legal process to function under a valid system.
68
Theories of Law
THE RULE OF RECOGNITION Read: Leiboff & Thomas LTC&P pp 308-310 OR LTIP Chapter 7pp 176-178 The rule of recognition is one of the central elements of Harts thesis: to be a proper rule, there must be some valid foundation for the existence of the rule. If those who operate and administer the system accept the rule, then the rule is validly recognised. Without that recognition (for example, by judges) the system would not work. But, the question arises, who can say what is valid - where does the validity begin or end? The circularity of this aspect of Harts theory has been pointed out by a number of theorists. Harts system in the way in which it identifies law through its rules is clearly positivist. However, the way in which Hart set out these rules identifies him as an empiricist: in particular, the way his theory contains the description of legal systems (albeit a system which has not be empirically identified!) OPEN TEXTURE Read: Leiboff & Thomas LTC&P pp 310-315 OR LTIP Chapter 7 pp 179-181 Hart also analysis rules by reference to what he calls the open texture of language - it is never possible to state a rule in language which covers every possible situation. Language is not like that. So the application of a rule in many situations will not involve any uncertainty. However, there will always be marginal cases, where the rule as stated does not adequately determine its application. Hart argues that in these situations, judges have discretion to decide how the rule should be applied, and that they will often rely on their sense of morality to determine how an uncertain piece of language will be interpreted. (We will see, in Dworkins theory, a different view of how judges should decide these uncertainties.)
Kelsen Read: Leiboff & Thomas LTC&P pp 203-205 OR LTIP Chapter 4 pp 96-106, reread Chapter 4 pp 83-95 Davies pp 6-9, 106-123, 141-142 Cotterrell, pp 106-109 KELSEN CONCEPTUAL, KANTIAN, POSITIVIST? Read: Leiboff & Thomas LTC&P pp 205-206 OR LTIP Chapter 4 pp 96-99 Kelsens theory is an attempt to remove form the study of law anything which is not objective hence the pure theory of law. Although Kelsen recognised that law was a social phenomenon which was related to other disciplines such as sociology, psychology and politics, he was trying to discover the conceptual basis of law its own structure rather than the way it operated in practice. This theory, therefore, is a normative legal theory, using as its basic building block the legal norm. In the development of the pure theory, Kelsen follows a Kantian approach: we understand the world around us by imposing on it a conceptual framework. Without
69
Theories of Law
the framework, our observations are unconnected and messy. It is only when we fit the results of our observation into categories that they can be said to have any meaning. Kelsen thinks of legal statements as purely normative that is, they are statements about what ought to happen within the legal system. (These legal ought statements need to be distinguished from the ought statements of morality. Kelsen is not concerned with the values that are involved when a legal norm prescribes certain forms of conduct. The ought describes what ought to happen within the legal system, rather than being a moral statement about how one ought to behave.) THE PURE THEORY OF LAW? Read: Leiboff & Thomas LTC&P p 204 OR LTIP Chapter 4 pp 99-103 Kelsens pure theory separates the science of law from any of the other subjective aspects which are associated with law. This legal science is concerned with knowing about the norms which are established within a legal system which give legal meaning to human activity. Driving at 100 kph in a built-up area has no legal meaning until it is looked at within the framework of legal concepts. Law is not defined as a command (as classical positivism had defined it), but as a statement of the relationship between specified forms of human activity and the consequences which flow from those activities. If certain activity occurs (such as murder) then the relevant legal norm prescribes what ought to happen (ie a sanction should be imposed so, for example, the murderer should be imprisoned for life). The theory has nothing to say about the moral or ethical values which are promoted by the existence of specific legal norms. A legal norm can have any content, provided the relationship between conduct and consequence is formulated in a legal rule. LEGAL SYSTEMS Read: Leiboff & Thomas LTC&P pp 206-220 OR LTIP Chapter 4 pp 103-105 Lloyd pp 291-302 (7th ed); 341-352 (8th ed) Kelsen describes law as a system of norms which exist within a defined relationship. Norms do not stand alone, but are embedded within a hierarchical structure, in which every norm is valid not because it expresses a desirable value, but because it is authorised by another norm further up the hierarchy. All norms can be traced upwards through the hierarchy, with each successive norm validated by a higher norm. However, this will ultimately reach a point where the validity of the norm cannot be derived from a superior norm otherwise the process would go on for ever. To avoid the problem of infinite regression, Kelsen puts at the apex of the hierarchy of norms a hypothetical norm, the Grundnorm or Basic Norm. The Grundnorm is not, like other legal norms, dependent on a higher norm for its validity by definition, there is no such higher norm. The Grundnorm is simply assumed to be valid. Neither is the Grundnorm the same as the Constitution of a state. Concretisation The highest norms in the hierarchy are also the most general - they stipulate what institutions have the capacity to create other norms. So a norm may authorise
70
Theories of Law
parliament to make laws for a state and courts to interpret laws. The lower level norms are said to be more concrete ie they apply at a very practical level and directly affect the people who are subject to them. So the general power of government to make and enforce laws may be made more concrete in the shape of specific norms about, say, driving on public roads. Such norms may specify a speed limit, and the legal consequences of not sticking to it.
71
Theories of Law
Workshop Five Activities

Activity One
Syndicate Session 1 Hart
Syndicate question Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). 1. Reading these cases, how valid is Hart's acceptance of the open texture of law? Does Hart's view of language have any bearing on these cases? 2. Identify aspects of the cases which fall within Hart's structure of law as rules. Can Hart's theory help us reconcile the differing conclusions in Re Denman with the earlier cases? 3. What methods and techniques was Hart able to use to re-invigorate the version of positivism inherited from Austin?
Activity Two
Whole Group Session 2 Kelsen 1. How would Hans Kelsen view the proceedings in Re Gray and Baker v Queensland? Identify, as far as possible, the norms which are evident or implied in the judicial considerations offered in these cases, including both concrete and abstract norms which operate within the legal system as described by Kelsen.
2. 2011 was a turbulent year and saw several revolutions in North Africa and the Middle East. What does Kelsen tell us about the way in which legal orders change when a revolution occurs?
72
Theories of Law
Workshop 6 Module Three Modern Legal Thought: Critical aspects

SESSION 1: MARX, WEBER, DURKHEIM
(Social, economic and historical theories of law)
SESSION 2: SOCIOLOGICAL LEGAL THEORIES AMERICAN LEGAL REALISM
73
Theories of Law

a basic understanding of the impact of social, economic and historical factors on law and its practices through Marx, Weber and Durkheim a basic understanding of the way that Marxs theories influenced law and changes to law through law reform an appreciation of the practical implications of Marxist critiques of law a basic understanding of the ideas of sociological theories in law and the American legal realists the impact these theorists have had on current legal theory and practice ways of linking the work of theorists across fields
READING SESSION ONE MARX AND MARXIST THOUGHT Prescribed Reading: Leiboff & Thomas LTC&P Ch 10 and Ch 14 pp437-450 OR LTIP Chapter 8 and Chapter 12 pp 274-282 Recommended Reading: Hunt A. Marxism, Law, Legal Theory and Jurisprudence in Fitzpatrick P (ed), Dangerous Supplements, London, Pluto Press, 1991, 103 (CMD) Lloyd Chapter 12
WEBER, DURKHEIM AND SOCIOLOGY Prescribed Reading: Leiboff & Thomas LTC&P Ch 11 pp345-358 OR LTIP Chapter 9, pp 203-212 Cotterrell in Lloyd pp 747-758 Further Reading: Lloyd Chapter 8 pp 659-672, 706-720 (7th ed); 835-849, 881-897 (8th ed)
SESSION TWO SOCIOLOGICAL LEGAL THEORIES: SOCIOLOGICAL JURISPRUDENCE Prescribed Reading: Leiboff & Thomas LTC&P pp 358-366 OR LTIP Chapter 9, pp 212-216, 222225
74
Theories of Law
Pound in Lloyd, pp 672-678, 721-727 (7th ed); 849-854,897-904 (8th ed)
AMERICAN LEGAL REALISM Prescribed Reading: Leiboff & Thomas LTC&P pp 366-380 OR LTIP Ch 9, pp 216-222 Davies pp 29, 142-151 Llewellyn in Lloyd, pp 805-810, 830-847 (7th ed); 990-996, 1011-1029 (8th ed) Frank in Lloyd, pp 827-830 (7th ed); 1008-1011 (8th ed) Further Reading: remainder of Lloyd Chapter 9 (7th ed); Ch 10 (8th ed).
75
Theories of Law
Marx ACKNOWLEDGING SOCIETY Read: Leiboff & Thomas LTC&P pp 317-325 OR LTIP Chapter pp186-189 We look at Marx in this unit because of the key role his theories have played in asking questions about the operation of law. In particular, Marxs social theories have provided a language and method for critiquing law. It also provides a means by which questions can be asked about the neutrality and objectivity of conventional approaches towards law, such as those we have seen in the last two modules. MARXS SOCIAL THEORY Read: Leiboff & Thomas LTC&P pp 325-339 OR LTIP pp190-199 Marx wrote throughout the middle to latter 19th, a period typified by laissez-faire liberalism. He made a connection between the impact on economic structures and their effect on peoples lives. In the context of the time in which he wrote, he observed that individuals couldnt be understood apart from their social relations, which are in turn the product of capitalist manufacturing activity, or the economic sphere of life. From this foundation, he then structured a complete theory on which to base a new version of class and economic structure. He did this from the basis of observing a society typified by serious inequalities. From this point, he extrapolated that biases originate in class structure derived from the economic system. He argued that this was the foundation for inequality; this was simply a case of seeing that the merchant class (or bourgeoisie) controlled the working classes (or proletariat), a situation supported by government. Because the bourgeoisie controlled the means of production, they also controlled the sources of information and ideas - to such an extent that the proletariat was kept in ignorance of its own plight as exploited labour. The masses were, in effect, kept stupid. The claim of liberalism to universal equality could not be maintained, on the basis of his observations. Marx set up the difference between the base the economic and the superstructure all other facets which support the economic, including law. The big picture established by Marx was to abolish of the class-ridden structures of capitalism. In his big picture, this would mean the end of the state, and these structures supported inequality. In his Manifesto, Marx suggests that the end of this exploitation would arise through the seizure of power by the proletariat, causing the replacement of capitalist democracy with true democracy. Because there would be no reason to exploit the proletariat, there would be no reason for the existing political structures of capitalism - and after this revolution, the State would wither away. The end of capitalism would mean the end of politics.
THE CONSEQUENCES OF MARX FOR LEGAL THEORY Read: Leiboff & Thomas LTC&P pp 339-343 OR LTIP pp199-200 Marx showed that differences in viewpoint exist at a deep theoretical level, which leads to the question: are the ideals of modernism and their related theories correct,
76
Theories of Law
because Marx showed that the world could be explained differently from that inherited through Modernism.
ADAPTING MARXISM Read: Leiboff & Thomas LTC&P pp 437-450 OR LTIP Chapter 12 pp 274-282 Marxist critique has had a number of offshoots, which relied on the insights developed by Marx. For law, these theories ask, "What part does law play in the production and reproduction of class relations that are characteristic of capitalist societies"? These theories consider the consequences of Marxs position based in the notion that law provides and guarantees a regime of property that formalises a complex and interdependent system of rights that permeate land law, industrial law, contract law and family law (to name a few). Alan Hunt identifies six themes setting out this sort of critique of law: 1. Law is political 2. Law and the State are closely connected, but the law exhibits a relative autonomy from the State 3. Law gives effect to prevailing economic relations, and the legal form replicates the economic form 4. Law is always potentially coercive or repressive and manifests the State's monopoly of the means of coercion 5. Law's content and procedures manifest the interest of the dominant class(es) 6. Law is ideological; it both exemplifies and provides legitimation for the embedded values of the dominant class(es). More subtle readings of Marx bring to the fore social and cultural, rather than economic explanations for law and its influences. You will see the discussion of these extrapolations in L&T at the pages set out here.
Weber, Durkheim, Marx and sociology Read: Leiboff & Thomas LTC&P pp 345-358 OR LTIP pp 204-207 Cotterrell in Lloyd pp 747-758
Legal theories based in sociology and ideas derived from sociology have been influential since the early C20th in some jurisdictions such as the USA, but have been of varying influence in the English based common law world. As a way of explaining how law operates in practice, and in connection with society, the legal theories that use sociology and its methods range from those which seek to make the law work better, while others seek to critique the law, by exposing the gaps between law and reality. All of these theories take issue with the idea that law operates on the basis of abstract rules; positivists like Hart, despite using the term sociology to describe their work, do not use sociology at all. Instead, theories like Hart operate in the abstract. In order to understand where the influences have come from, we will look at the origins of the ideas of sociology and their relationship with law in the C19th Marx,
77
Theories of Law
Durkheim and Weber are considered to be the founding fathers of sociology, and to a greater or lesser degree explained the relationship between law and society MARX See above DURKHEIM Read: Leiboff & Thomas, LTC&P pp 352-353 OR LTIP pp 207-209
Durkheim explained the role of law as a measure of the essential characteristics of society. Changes in law reflected changes in society, and Durkheim showed how the law was interconnected with other social forms. WEBER Read: Leiboff & Thomas LTC&P pp 354-358 OR LTIP, pp 209-212 Weber is known as the bourgeois Marx, by placing individuals, not social classes or economic order, at the centre of society. His sociology of law aimed to encourage the very best form of legal order needed to facilitate capitalism. His ideal type was the formally rational law which was characterised by the practices of European legal systems. On the other hand, the English common law was characterised as being substantively irrational, but he saw that England had the most advanced capitalist system in the world. He also sought to explain why people accept the law imposed upon them. Roscoe Pounds sociological jurisprudence POUNDS THEORY Read: Leiboff & Thomas LTC&P pp 358 OR LTIP pp 212 Pound in Lloyd, pp 672-673, 721-723 (7th ed); 849-854, 897-904 (8th ed) Roscoe Pound (1870-1964) was the American theorist who developed his self-styled sociological jurisprudence, which has had considerable influence in the development of sociological theories of law. The use of terminology, though, was significant: Pound was not intending to just see how law operated in society. As we shall see, Pound was aiming to develop a new scientific mode of legal thinking which drew itself from the insights of social science. In this, Pound was clearly of his generation, one in which the pre-eminence of the scientific was apparent. Pound had as his aim the development of a legal system which worked with the minimum of friction and waste. The engineering analogy is clear: the law is a machine which has to work effectively. The way this legal system was to work was through his sociological jurisprudence.
78
Theories of Law
THE THEORY OF INTERESTS Read: Leiboff & Thomas LTC&P pp 359-364 OR LTIP pp 213-215 Pound in Lloyd, pp 674-675, 724-726 A number of steps had to be taken in order to develop his sociological jurisprudence. The first thing that had to happen was the listing and classifying of all interests law should consider in its operation. These interests were the claims, demands or expectations which people had in the legal system. Pounds approach was to identify the interests on the basis of those who approached the legal system, rather than looking beyond the legal system itself. Can you see if there is a problem with this? It was of course necessary to identify the interests, and Pound identified three different kinds: social, individual, and public. Social interests are collective, and include the moral health of society, and conservation of natural and social resources, among other things (remember that the social interests were not derived from a broad view of society, but from within the legal system). Public interests relate to the legal embodiment of politically organised society. Individual interests can be found in areas we would think of as private law areas. This latter interest was the most important of all. Having identified all of this, the machine can start to operate. The first thing that needs to be done is to select the interests that law should recognise (which we have started to identify). The second is the fix the limits of the protection of those interests which law should provide, the third how and to what extent law can effectively provide that protection, and fourthly, the formulation of principles of valuation by which the previous three are to be accomplished. However, like has to balanced against like, so that interests are to be balanced on the same plane, but preferably be dealt with at the generalised social level.
JURAL POSTULATES Read: Leiboff & Thomas LTC&P pp 364-365 OR LTIP pp 215-216 Pound in Lloyd, pp 675-676, 726-727 How is this to be done? The theory requires the identification of values as an integral part of its operations: a measure of values which aim to provide guidance in how the interests should be balanced and to be used for further development was part of Pounds project. These were the jural postulates, which were to be found in the law itself. The jural postulates were the most abstract and generalised normative components of a legal system in a given time and space. Although the jural postulates would alter at any given time, the ideas underpinning them can be seen to be broadly consensus oriented. Can you see the extent to which Pounds ideas are firmly planted in modernism? CRITIQUE OF POUND Read: Leiboff & Thomas LTC&P pp 366 OR LTIP pp 213, 215, 222-225 Pound in Lloyd, pp 676-678 You will find a number of criticisms of Pound are summarised in L&T and included in Lloyd. If you read the recommended reading (Wacks), you will see a list of
79
Theories of Law
criticisms made of Pound. You will need to think about the criticisms and what they are saying, and not simply repeat them without explaining the basis on which you are adopting the criticism.
American Legal Realism GENERAL Read:
Leiboff & Thomas LTC&P pp 368 OR LTIP pp 216, 217- 219 Davies pp 34, 157-158
Realism was a movement - a number of disparate thinkers of a similar family of thought that emerged and was influential during the first part of the C20th in the United States. They sought to place the practical and real rather than the abstract as and though not sociologists, relied on the methods of sociology and ideas of society as key to their project of making law work better.
INFLUENCES: PRAGMATISM AND HOLMES Read: Leiboff & Thomas LTC&P pp 368-370 OR LTIP pp 216-217 Davies pp 158-161 The philosophy called pragmatism influenced the realists; on this basis, law was treated as a work in progress, and this was preferable to the adoption of abstract rules. The ideas of Justice Oliver Wendell Holmes (1841-1935) were influenced by pragmatism, and in turn, adopted by pragmatist philosophers. A Justice of the US Supreme Court from 1902, Holmes recognised that much of the law he was required to deal with was contextually out of place in the US at the turn of the twentieth century. His work was very court and lawyer centred, and he was concerned with the idea of law that was court-developed and not merely book based: application was important. He developed the notion of the bad man who will decide what to do on the basis only of the consequence of an action, not the legal or moral thing.
THE REALIST PROJECT Read: Leiboff & Thomas LTC&P pp 370-372 OR LTIP pp 219-220 Davies pp 161-163 Llewellyn in Lloyd, pp 830-834 There was not one type of realist, or realist method. In 1931, Karl Llewellyn summarised their common point of departure, which is summarised in L&T. You should read the original as well.
80
Theories of Law
LLEWELLYN Read: Leiboff & Thomas LTC&P pp 372-374 OR LTIP p 220-221 Law as institution Read: Llewellyn in Lloyd, pp 805-806, 834-840 Llewellyn saw law as a key institution in society to keep society going and functioning through its values, rules and principles. The people involved in carrying out what he called law jobs were to improve law and thus society. Pragmatism influenced his ideas about the effectiveness of law, in terms of constantly testing it against societal needs. Judging was central to this task, and the ability to predict cases would enable litigants to better judge whether to proceed with litigation. Judging styles Read: Llewellyn in Lloyd, pp 807-810, 840-847 Llewellyn divided identified two characteristic styles of American appellate courts: grand style and formal style, which would help in the predicability of decisionmaking. He preferred the grand style, which provided for the ongoing renovation of doctrine. In contrast the formal style is one in which the judge allows the rules to decide cases and leaves policy to the legislature. You should make sure you read the table prepared by Twining in Lloyd at p 847 which summarises the differences in the styles. In effect, it is easier to predict the outcome of a grand style judge because formal style is always open to being twisted to achieve whatever outcome the judge wants to adopt. This is despite formal style looking more certain The notion of the predictive role of judging has been picked up and misconceived by some writers as being the only function of realism; as you can see Llewellyn connected the issue of predicability into a social function.
FRANK Read:
Leiboff & Thomas LTC&P pp 374-377 OR LTIP pp 221-222 Davies p 163-164 Frank in Lloyd, pp 827-830 Frank in Lloyd 6th edition, pp 683-686
Frank took a fundamentally radical approach towards law by arguing that the ideal of legal certainty should be replaced with a fundamental desire for justice. At one level, he wanted to dismiss the idea that you can ever such certainty, but at another, provided a program that would assist with overcoming the true reason for indeterminacy: facts. He saw facts rather than appellate judging as the trying indeterminate factor in successful prediction, and the chief obstacle was how a particular trial judge or jury would decide were the facts, such as: o mistakes by witnesses in observation
81
Theories of Law
o prejudices, biases of trial judges and juries, such as peculiarly individual traits of the person, played their part in the attitude of a judge to that person, which were political, economic and moral biases. o ability of counsel, among other things. Judges work backwards from the conclusions and not as we are taught to believe from application of rules and principles to facts: o rules and principles enabled judges to give formal justifications and rationalisations for the judges conclusions. o the bad effects of precedent would allow judges to refuse to do justice in the case as well as manipulating the language of former decision o judges should work out present problems by reference to social ends and that they should make evident the concealed circumstances upon which a decision was based. Frank had a remedy for these problems. In the Courts on Trial, he suggested that trial court judges should learn all that is known about psychological devices for testing the trustworthiness of witnesses, that they should learn about the interpretation of demeanour and that they should be trained in the best available methods of psychology. Indeed, students at law school should engage in a voyage of intensive self-exploration so that he (sic) will be sensitively aware of many of his own hidden biases and antipathies to other kinds of persons; then he will be able to control or modify many of his biases with respect to witnesses who will appear before him.
LIMITATIONS OF REALISM Read: Davies pp 160-167 Leiboff & Thomas LTC&P pp 376-380 OR LTIP p 222-224 Davies, whiles sympathetic to their project, argues that at a philosophical level, realists (or a number of them, in particular Cohen) are too concerned making facts and law pay up in reality, when much of laws reality is actually based on nothing more than concepts or categories we impose on the world. For instance, torts or corporations dont actually exist as something we can touch and feel we make them up in order to place some kind of order our world. They are no less valid, despite this!
LATER DEVELOPMENTS Read: Leiboff & Thomas p 222 While as a movement the American Legal Realists dissipated in the 1950s, they went on to influence the Critical Legal Studies movement of the late C20th that we will return to in Workshop 8.
82
Theories of Law
Workshop Six Activities

Activity One
Syndicate
Session 1 Marx, Weber, Durkheim (Social, Economic and Historical Theories of Law) Syndicate Question
Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). 1. Critique the decisions in these cases from the perspective of Marxism and the most relevant Marxist legal theories (hint: the non-economic based theories will provide a more fruitful critique). 2. How valid is Durkheim's point that law is the external index of morality in respect to these cases?
Activity Two
Whole Group
Session 2 Sociological Legal Theories American Legal Realism 1. Should social issues be considered by judges in developing the law? How do the decisions in Re Gray, Baker v State of Queensland and Denman take social issues into account? 2. How do we evaluate the competing tensions in these cases in light of Roscoe Pounds theory of interests? 3. Critique the judgments in these cases from the perspective of the realists; what would Frank have to say about the judgment in Denman?
83
Theories of Law
Workshop 7 Module Four Modern Legal Thought: Contemporary Rights Theory

DWORKIN
84
Theories of Law

A basic understanding of Dworkins rights theories An understanding of the difference between principles and policies, and the role of each in legal determination An idea of the major criticisms which have been levelled at Dworkin An appreciation of the stages in which you acquire knowledge and understanding of new content and material A recognition of the differences in understanding and interpretation of the same material between yourselves and your peers
READING Prescribed Reading: Leiboff & Thomas LTC&P pp 238-254 OR LTIP Chapter 5 pp 122-134; pp109-122 Davies pp 69-74 Lloyd pp 540-548, 593-614, 1429-1430, 1441-1444 Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, pp 166-181 Recommended Reading: Further Reading: Wacks pp 249-252 Lloyd Chapter 17
Dworkin When Ronald Dworkin was still a young academic, he gave evidence for the defence in the Oz magazine prosecutions in London in the 1960s. Two of those charged were Australians who were the editors of the Schoolkids edition (actually edited by the kids). The magazine contained images of Rupert the bear, among others, which were considered obscene. The editors were convicted, but on appeal, the convictions were overturned.
DWORKIN READ: 124
Leiboff & Thomas LTC&P pp 238-242 OR LTIP pp 122Lloyd pp 540-548, 593-614 (7th ed); 603-612, 659-680 (8th ed)
85
Theories of Law
Dworkin is an American, and is committed to liberalism, which incorporates a heavy emphasis on civil liberties: that is, a meaning of the term which is associated with one of the common meanings of liberal (as opposed, say, to a conservative morality which may happily censor certain types of material). The importance of equality of all individuals is of vital importance to his theories: it is not just a limited notion of equality, but one in which there is equal concern and respect for all individuals. This requires the treatment of people as individuals, not to be devalued, and so minorities are not allowed to be denied their civil and political rights. This aspect of his work is concerned with the freedom of the individual and with the freedom of the minority: he is anti-utilitarian. The framework of his theory is liberal democracy. This aspect of Dworkin is related to and interwoven with the other main aspect of his work - that of his theories of adjudication. The concept that underpins his work relates to a desire for the democratic process to be continued in the judicial arena.
DWORKIN AND RIGHTS READ: Leiboff & Thomas LTC&P pp 250-254 OR LTIP pp128-132 Davies pp 69-74 Cotterrell, pp 166-172 Lloyd pp 1429-1439 (7th ed); 734-745 (8th ed) The point at which these notions link up is the underlying concept of rights. Dworkin is concerned with the protection of rights and on the moral (in the philosophical sense) autonomy of individuals. Rights pre-exist legal rules, and gives the actual meaning to those rules. However, they are expressed in those rules, and should not be taken away. In judicial decision making, there is no room for discretion, or rights are adversely affected. Dworkins moral stance can come into play here. He takes the view that there is some background moral right which a community has which is to be distinguished from populism. You can see from this that his work is not positivist and indeed he is strongly critical of analytical theories of law; there is room in his rights thesis for morality in law, but it is not natural law. It is, though, normative (in the sense of ought principles). The theory of rights The title of Dworkins book, Taking Rights Seriously (1978), sets out how important rights are in his theory. He distinguishes between rights (of the individual) and policies (of the community). Dworkin takes as a starting point the idea that a right is a principle, while policies are goals. This distinguishing point means that you start with the belief of the need of the individual, rather than the need, say, of the community. Dworkin says that it is not for the judges to make decisions on policy grounds. However, they may make decisions on the grounds of principle. The extension of this idea is that judges are not there to make law, but to decide cases, and therefore there is a limited point at which principle may be used - that is, in hard or marginal cases. The rights thesis has as its foundation the idea that there are certain entrenched rights of the individual that cannot be shifted. Indeed, these rights are so strong and so
86
Theories of Law
important, that they are actually part of the law. Rights are trumps (as in trump card). Rights are what the individual has over the rest of the community. When it comes to judging, the rights will always trump policy because of the requirement of a judge to interpret law in a principled way (see below). Associated with the importance of rights is the extent to which the thesis is counterutilitarian. That is, the rights of the individual may not be sacrificed to the wider community, except by the legislature. However, the legislature is not able to take away the right of the individual on the basis of the general welfare. It is the role of the judiciary to look after the individual through the protection of rights, which in Dworkins theory are entrenched, such as the right to free speech, or the right to recover damages in negligence claims. These rights are either principles derived from general legal rules or legal rules themselves. The stronger the rule or principle (in terms of its concreteness or the extent of institutionalisation) the more difficult it is to politically dislodge the right. DWORKINS JUDGES Read: Leiboff & Thomas LTC&P pp 242-250 OR LTIP pp 125-128, 132133 Cotterrell, pp 172-181 Lloyd, pp 1441-1444 (7th ed); 747-750 (8th ed) There are two tramlines of thought about the judge in Dworkins theory. The first is a positive role (in the regular sense): the judge must ensure that rights of the individual are not eroded. The protection for the individual is found in the principles set out in the legal rules. The second tramline is a negative: it does not allow for judicial discretion. Judges are not there to implement policy (that is, something is community based). It is outside the scope of the judge to do this for it is anti-democratic, and has a taint of retrospectivity. However, judges are allowed to be creative: judges do not make law,
87
Theories of Law
but they do interpret law through the existing resources provided for them in the rules and principles which already exist. These rules and principles are law in Dworkins scheme. It is therefore always the situation that in any hard case, an answer will be found within law. The judge will ensure that the law as decided forms part of the seamless web of judicial decision making, through a linkage between rules, principles, and policy. There are no gaps in the law: there is always one right answer, which is found through this process. Judges are not free to put their own stamp on the decision. Their political or philosophical views cannot fit into this scheme. You will see how this fits into Dworkins notions of rights, liberalism and inherent belief in the democratic process. However, the interpretation will alter over time, as the story changes and as times change. It is not a merely mechanical application: it could not be, or the story would not work. The outcome of doing this correctly will ensure that the integrity of law remains.
88
Theories of Law
Workshop Seven Activities

The whole group session is held in Session 2
Activity One
Syndicate
Syndicate question Dworkin Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). 1. Use Dworkins theories to propose and justify a legislative regime regulating the issue raised by these cases. (You may take any view as to whether access to reproductive tissue should be allowed, but must show how Dworkins theories would support the view you suggest). 2. How would Dworkin view the decision in Re Denman? Does it reflect Dworkin's conception of law as integrity?
Activity Two
Whole group
Session 2: 2010 Exam Q1 In 2010, the Australian Government announced that it would not adopt the recommendations of the National Human Rights Consultation Committee to implement a charter of rights in Australian law. Commonwealth Attorney-General Robert McClelland explained that a legislative charter of rights was not included in the government's human rights framework ''as the government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community''. Former NSW Premier Bob Carr has welcomed the move in an op-ed in The Australian, stating: Australians have a high civic IQ. They know their country is robustly free. They wake each day to see their elected leaders, state and federal, traduced in the media. They have seen victims such as Mohamed Haneef triumph against the authorities in the courts. The people have changed a federal government and have made two recent state elections look competitive.
89
Theories of Law
Yet the people are probably reasonably happy that government can take action to limit liberties, as the Victorian government did in November when it gave police the power to target knife and alcohol violence. This included the right to stop and search people without suspicion (in unapologetic contradiction of Victoria's own charter). Governments state and federal have also strengthened laws against terrorism and, far from feeling threatened, people feel more secure. [] I'm told that during the period cabinet was considering the Brennan report Kevin Rudd was reading Steven Pincus's 1688: The First Modern Revolution. That we've avoided a lurch towards a charter reflects Rudd's understanding that the untidy ebb and flow of common law, free elections and freedom of speech will keep us freer than lawyers' arguments over every word and clause in a charter. His reading would confirm it's the ethos of a country that counts, the spirit of a people. 1. Critically examine Mr Carrs statements with respect to Ronald Dworkins theory of rights.
90
Theories of Law
Workshop 8 Module Five Modern Legal Thought: Contemporary Critique

SESSION 1: CRITICAL LEGAL STUDIES
91
Theories of Law

An understanding of the development of the critical project in law, from its origins in Marx and sociology An appreciation of the reasons that led to the type of critique undertaken by the Critical Legal Studies (CLS) movement an appreciation of the practical influences of CLS an understanding of the changes and influences that occur in the development and change in legal theories
READING Prescribed Reading: Leiboff & Thomas LTC&P pp 450-461 OR LTIP Chapter 12 Re-read Leiboff & Thomas Chapters 5, 8 and 9 Davies Chapter 5 and p 34-35 Robert Gordon in Lloyd, pp 1056-1063 (7th ed); 1225-1232 (8th ed) Duncan Kennedy in Lloyd, pp 1104-1108 (7th ed); 1267-1271 (8th ed) Further Reading: Remainder of Lloyd Chapter 13 (7th ed); Ch 14 (8th ed)
Critical Legal Studies WHY DO WE LOOK AT CRITICAL LEGAL STUDIES? READ: Leiboff & Thomas LTC&P pp 450-452 OR LTIP pp 282-287, 283-289 Davies pp 186-191 The Critical Legal Studies Movement (CLS) was a key critical movement in law that had its heyday in the latter part of the C20th. CLS as a movement has now dissipated, and the scholars who formed part of the movement have now shifted into other modes of critique, some of which we will deal with in this module. CLS is also interesting because of its use of earlier critical forms of theory, such as those we looked at in Module 3. Its influence is still felt through the impact that CLS has had on the practices of law.
THE CRITICAL PROJECT: TRACING ORIGINS READ: Leiboff & Thomas LTC&P pp 455-458 OR LTIP pp 272-282, 284-285 Davies pp 183-185, 191-193
92
Theories of Law
Some of the ideas of CLS seem to be dramatically disconnected with the way we have learnt most of our law. Their methods and approaches seem to come from nowhere. However, we can easily understand what the crits were doing by understanding the basis on which their theory emerged. CLS started to emerge in the 1960s, but was formalised through a now famous Conference on Critical Legal Studies, first convened in 1977 in Madison, Wisconsin. Indebted to the social theories of Marx, later Marxist critique, including critical theory and hegemony, the crits took on a range of critiques of law, but in particular bored in on the underlying notions of what was known as liberal legalism. You will find it much easier to understand what the crits were doing by referring back to the material you have already covered.
THEMES AND IDEAS READ: Leiboff & Thomas LTC&P pp 452-455 OR LTIP pp 272-282, 284-287 Davies pp 188-191 CLS uses a number of techniques to expose the way that law is imbued with political ideologies, under the guise of objectivity and using doctrine to legitimate and make natural what is instead constructed and subjective. The strands of CLS thought are summarised in L&T. Uncovering the ideological foundation of law READ: Davies pp 193-202 Gordon Law as Ideology in Lloyd pp 1056-1063 The techniques used by the crits to uncover laws failings what they see as its incoherence or indeterminacy and contradictory nature - was to use techniques called trashing and demystifying, and deconstruction (which we will look at in postmodernism). This led to the charge that all the crits were doing was showing what was wrong without providing a program for change itself. In the original text from Robert Gordon, you will see his description of the main features of the (different) strands and methods of the CLS movement. Liberal Ideology and attacking rights READ: Davies pp 196-210 Gordon Law as Ideology in Lloyd pp 1061-1063 One of the key sites of dissatisfaction for the crits was with the assumptions of liberalism that underscores much of law; one area in particular that caused concern was the idea of rights as an alienating (in a Marxist sense) force in society. While rights may seem a good thing, the crits saw them as dividing and divisive, and a furphy or chimera for most of us (we have them but we cant use them). However those who traditionally had no rights, like African-Americans, want to assert (or need to assert) rights in a way that the privileged men of CLS did not have to do look at Patricia Williams story in Davies. Focusing on practice
93
Theories of Law
READ: Davies pp 209-210 Gordon Law as Ideology in Lloyd pp 1060-1061 The actual effects of the law can work to reproduce existing social circumstances, and can also replicate inequality in society. Examples like class actions are anathema to the liberal ideal because a group bringing an action against an individual is unequal, oppressive and unfair, even if the group is comprised of ordinary individuals and the individual is a large globalised corporation; in a formal sense, this antipathy is reconstructed into substantive or adjectival questions of damage, and proof. Exposing the personality of a judge or a legal practitioner is reminiscent of the approaches of the earlier realist movement, but one which brings to bear the techniques of critical theory. It also illustrates the concerns of the CLS movement that law is political and ideological. Legal Education READ: Kennedy The Ideological Content of Legal Education, in Lloyd pp11041108 Gordon Law as Ideology in Lloyd pp 1058-1059 One of the main features of the CLS project was to focus on legal education as a site for reproducing the assumptions and beliefs of the liberal ideal in law in law students. A critical legal eduction wanted law students to shift out of the mathematical and formularised approach towards law, by bringing them face to face with the effect of law in a practical sense. They advocated skills training and legal clinics. They also wanted to make explicit the reasoning methods which hid underlying political ideologies. The extract from Sandra Berns illustrates one of the ways in which this process occurs. DEVELOPMENTS READ: Leiboff & Thomas LTC&P pp 458-461 OR LTIP pp 284-286, 287-290 Davies pp 210-212, 34-35 At the end of the 20th Century, CLS shifted into a variety of other critical movements, which are more closely directed to specific areas of concern, through a nuancing and refining of theoretical methods. Some have even returned to the methods of positivism, liberalism and realism, while others have turned to postmodernism and poststructuralism, a range of specialised critical movements, and psychoanalytic legal theories, among others. As you will see in later weeks, the techniques and methods used by the crits, like genealogy, deconstruction and trashing, were consonant with those other theoretical modes
94
Theories of Law
Workshop Eight Activities

Activity One
Syndicate
Session 1 CLS Syndicate Questions Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). 1. What assumptions can you see about liberty and property rights in these judgments? Critique these assumptions from the point of view of CLS. 2. How correct were the crits in arguing that law is alienating, as demonstrated by these cases?
Activity Two
Whole Group 1. Go back to the Workshop 7, Activity 2 extract from Hon Bob Carrs op-ed piece on a charter of rights (2010 Exam Q1) and the speech by Julian Burnside QC covered in Workshop 2, Activity 2. What do the crits think about rights? Would a Charter or Bill of Rights be a good idea in Australia? Last workshop, we critiqued Hon Bob Carrs op-ed through Dworkins theory. Now, critique Dworkins approach from the viewpoint of CLS.
95
Theories of Law

SESSION 1: FEMINIST LEGAL THEORIES, CRITICAL RACE THEORY, POSTCOLONIAL LEGAL THEORY
96
Theories of Law

The underlying basis of the approaches of personalised legal theories An appreciation of the differences between feminist perspectives, and the different types of legal reforms this leads to A basic understanding of the themes and aims of critical race theory A basic understanding of the themes and aims of postcolonial legal theory An understanding of the ways that you can approach revising and refining your knowledge and understanding of the different theories you have covered this semester
READING FEMINIST LEGAL THEORIES Prescribed Reading: Leiboff & Thomas LTC&P pp 413-436 OR LTIP Chapter 11 pp 251-269 Davies pp 213-253, 274-282 Recommended Reading: Davies pp 233-249 Lloyd Chapter 14 (7th ed); 15 (8th ed) CRITICAL RACE THEORY Prescribed Reading: Leiboff & Thomas LTC&P pp 463-475 OR LTIP Chapter 13 pp 293-303 Davies pp 283-300, 316-324 Recommended Reading: Davies pp 253-274 Lloyd Chapter 16 (7th ed); 17 (8th ed)
POSTCOLONIAL LEGAL THEORY Prescribed Reading: Leiboff & Thomas LTC&P pp 475-481 OR LTIP Chapter 13 pp 303-308 Davies pp 300-316
97
Theories of Law
Feminism THE HERITAGE OF FEMINIST LEGAL SCHOLARSHIP READ: Leiboff & Thomas LTC&P pp 413-417 OR LTIP pp 251-255 Davies pp 213-220 Contemporary feminist legal scholarship challenges the role that law and the legal system play in sustaining the patriarchal character of Western societies. Feminist legal scholars are committed to the project of transforming society into a place where women are effectively equal to men, although individual feminists differ widely in their visions of what is necessary to achieve such justice for women. The tradition of feminist criticism of law is considerably older than most people realise, extending back in the case of the English legal system at least to the sixteenth century. It is perhaps ironic that many of the issues which concerned women at that early date were still alive when the so-called "second wave" of the feminist movement was felt in Western nations in the 1960s and '70s. For many, it is positively disturbing that the demands made by "second-wave" feminists - for an end to discrimination and violence against women; the cessation of pornographic exploitation of women; reproductive rights for women (eg, ready access to birth control and abortion); equal pay, entitlements and opportunity in employment; equal representation in public office; freedom of sexual relations; - remain, in practical (as opposed to purely formal) terms, unsatisfied several decades on. Much recent feminist critical scholarship overlaps with the work of CLS scholars and critical race theorists. All three movements question and problematise the existing structure and content of law and the legal system. They share certain themes (eg, the critique of liberal legalism; the critique of the distinction between public and private spheres of society) and methodologies (eg, an emphasis on the context of lived, actual experience; the use of narrative, personal styles of writing; the "deconstruction" of legal texts). Law's Marginalisation of Women Feminist legal theorists criticise the way that law marginalises, silences or excludes women. Given that married women were denied a legally recognisable identity until the Married Women's Property Acts 1870 to 1882 (Imp), their absence from the law reports prior to this time isn't entirely surprising, but the repercussions of this invisibility are serious. Having developed overwhelmingly as a response to the interests and demands of male litigants, the fundamental principles and doctrines of our common law frequently fail to recognise women's life experiences: the harms done to them, their own specific needs. The difficulty is compounded when we consider that much legislation - eg, our Criminal Code - was enacted by (or at least modelled on legislation enacted by) MPs for whom women were not allowed to vote did not elect Parliaments to which women. A considerable body of scholarship produced by feminist legal theorists examines the many ways in which legal discourse is structured around men's perspectives and experiences, rendering it virtually impossible for the meaning of experiences as they
98
Theories of Law
are registered by women to appear. Consider, for example, the way women are objectified and their experiences distorted in rape trials. Think also of how the criminal defences of self-defence and provocation, which assess "reasonableness" according to male conceptions of threat and response, cannot comprehend the powerlessness and hopelessness of so-called "battered" women (women caught in a cycle of domestic violence) who kill their abusive male partners. Outside the criminal law, many feminist legal scholars have also drawn attention to women's marginalisation in areas such as contract, torts, labour law, taxation and equity. Theoretical Approaches to Feminist Critique READ: Leiboff & Thomas LTC&P pp 418 OR LTIP p 255 Davies pp 220-227 Just as acutely as other critical legal scholars, feminist legal theorists have realised the importance of connecting theory to political practice. Many employ methods such as "consciousness-raising" (in which women's individual personal experiences are shared with other women in order to raise political awareness) and generally attempt to base their theoretical work in women's actual lived reality. There are many different feminist approaches to critique (hence Margaret Davies' insistence on the word "feminisms"), of which we can only consider a few. One way of gaining an overview of the feminist legal literature might be to use the following headings (although please bear in mind that imposing such a classification is highly arbitrary, rather clumsy and - in keeping with one running theme in this lecture block - necessarily violent!): "Partial" Critiques of Legal Discourse By "partial" critique, what is meant is the kind of criticism which accepts that the law is essentially fair and rational, and that women's inequality is basically the result of existing legal rights not having been fully and effectively extended to women. The law is seen as retaining some discriminatory features, but when these are overcome it is expected to treat women and men equally. The focus is on securing formal legal equality for women in the public sphere (ie, as citizens, employees and professionals). No radical changes are called for. This debate revolves around the sameness/difference critiques in legal theory:
LIBERAL FEMINISM READ: Leiboff & Thomas LTC&P pp 418-422 OR LTIP pp 255-258 Davies pp 227-240 Sameness models: This is the model of so-called traditional "liberal feminism". Liberal feminists argue that women should legally be treated the same as (as being equal to) men. Rights and entitlements presently enjoyed by men must be extended to women. Liberal feminist "victories" include legislation securing equal pay and prohibiting discrimination in the workplace (eg, the Sex Discrimination Act). The assumption underlying the liberal feminist model is that women are no different from men. This assertion has been helpful in many contexts, but has caused problems in others. Are women really the same as men? Do they want to be the same as men?
99
Theories of Law
Men, for example, do not have the capacity to bear children. Are women claiming maternity leave entitlements seeking the "same" treatment as men (eg, leave for a "disability" or "sickness") or "special", "different" treatment? Does the refusal to censor pornography in the name of a formally equal right to "free speech" really impact equally on men and women in our society? Is the "reasonable person" of legal texts really gender neutral, or does s/he resemble more closely someone with traditionally male values and interests? Doubts about the adequacy of the assimilationist model of liberal feminism have caused other feminists to adopt different approaches. Difference models: Feminists employing this model recognise that women are, in some respects, different from men. They argue that the law must, to this extent, recognise and make allowance for women's differences: eg labour law must include "special", additional entitlements such as maternity leave for women. The work of cultural feminists (considered below) is sometimes used in this vein to maintain that women have a "different", more empathetic approach to dispute resolution and legal practice. It is argued that as greater numbers of women make their way in the legal profession, sexism will be overcome and women's alternative perspectives will supplement or mix in with the conventional legal culture. The call for more women may be supported by affirmative action measures. "Total" Critiques By "total" critiques, we mean criticisms which view the law and legal system as fundamentally male-biased or phallocentric (ie, the law is said to embody a male culture and outlook, preserve male values and protect male interests, even as it purports to be neutral in its application to men and women). Feminists point here, for example, to women's marginalisation in legal texts, the legal profession's hierarchical structure, the adversarial culture of law schools and practice, the legal emphasis on cold calculating rationality, and the insistence that emotional responses can never be legally "relevant". Two examples of "total" critique are: CULTURAL FEMINISM READ: Leiboff & Thomas LTC&P pp 429-433 OR LTIP pp 263-266 Davies pp 250-253 Cultural feminists draw upon the work of Carol Gilligan, a moral psychologist who argued that (for whatever reason - biological or environmental) women tend to reason in a "different voice" from men. Conventional models of moral reasoning privilege an ethic of competing rights and value the ability to think abstractly about and apply universal moral principles to a moral problem. Gilligan sees this view of "objectivity" as male-biased and partial. She believes women reason according to an "ethic of care" which emphasises context, the importance of relationships, empathy, compassion, love and understanding. Cultural feminist legal theorists argue that rather than denigrating such traditionally "feminine" qualities, the law and legal profession must seek to foster and develop women's unique capacities. Such a move would require a fundamental change in legal thinking and practice, challenging the purportedly "objective" perspective of the "reasonable man/person".
100
Theories of Law
RADICAL FEMINISM READ: Leiboff & Thomas LTC&P pp 422-429 OR LTIP pp 259-263 Davies pp 240-249 So-called "radical feminists" such as Catharine MacKinnon claim that the "objective" legal standpoint is not neutral, but rather embodies the male gaze. MacKinnon argues that "the law sees and treats women the way men see and treat women" (ie, it objectifies them; man is the subject viewing woman-as-object). Law itself works to oppress women. MacKinnon criticises Gilligan for affirming women's difference from men when this "difference" has, in fact, been defined by patriarchal society. Men, to suit male needs and desires, have constructed womens identity and sexuality. It is a trap to celebrate our present "feminine" qualities. Indeed, MacKinnon sees the whole "sameness/difference" debate as a dead-end for women. She argues that women's oppression is a result of their sexual subordination to men. Power and control over sexuality are inextricably linked, men have both (relative to women anyway), and women must challenge this. MacKinnon and her supporters nearly succeeded in having legislation enacted to make pornography a form of unlawful sexual discrimination, empowering women to sue producers and distributors for harms caused by their work. BEYOND "TOTAL" CRITIQUES: RELATIONAL AND POSTMODERN FEMINISMS READ: Leiboff & Thomas LTC&P pp 434-436 OR LTIP pp 266-268 Davies pp 274-282 Some feminist legal scholars have attempted to move beyond the limitations of straightforward "partial" and "total" critiques. They agree with the more deeply challenging stance of radical and cultural feminists, but wish to avoid (in particular) two problems which haunt their work: Determinism - if women's present (oppressed) position is attributable to their unique, innate qualities (cultural feminism) or to the all-encompassing nature of male power (radical feminism), then how is change possible? Total critiques may be too negative: if the influences determining women's identities and social roles are as complete as claimed, aren't women stuck? (This might not be a problem for cultural feminists who are happy to affirm "feminine" values, but not all women least of all MacKinnon - are.) Essentialism - is it really the case that all women reason on the model of the "ethic of care"? Are all women who do not see themselves as oppressed by male power experiencing false consciousness (as MacKinnon has claimed)? And what about the many important differences which exist between women? (As we shall see next week, critical race theorists have questioned the ability of white feminists to speak for all women, including women of colour.)
101
Theories of Law
Communitarian and Relational Feminisms Recently, some feminist legal theorists have argued for alternative theories of social and political organisation, which emphasise "community across diversity". They attempt to move beyond a merely "negative" critique by offering a reconstructive vision. Some feminists are radically revising classical liberal notions such as "autonomy" and "liberty" by focussing on positive rather than negative liberty (ie, individuals must take responsibility for their own freedom and the way it is used). This is combined with a feminist emphasis on the importance of empathy, the fostering of relationships between different, unique individuals, and the reconciliation of the public and private spheres of society. Postmodern Feminisms So-called "postmodern" feminisms also focus upon the importance of the diversity of women's experiences. Rather than determining whether women are the "same" as or "different" from men, they seek to develop alternative epistemologies (ways of knowing) which don't reduce women's many differences by comparing women with a governing male standard. Postmodern feminists agree with MacKinnon that, under patriarchy, women's identity and sexuality has never been free to emerge in its own right. In the pair of terms "Man/Woman", "Man" is dominant; Woman" has been constructed simply as "not-Man", the perfect complement to masculine identity. Some postmodern feminists believe, however, that MacKinnon simply reverses this phallogocentric opposition, claiming for "Woman" the power that "Man" has traditionally enjoyed. Unlike MacKinnon, they believe it is possible and desirable to move beyond this oppositional approach. To do so, women must work to "rewrite" (quite literally, to invent) an identity for themselves which does not revolve around male expectations and values. There is no absolute female essence (biological or cultural) which can be drawn upon for this purpose. Rather, women must strategically create a rallying point for themselves. Postmodern feminists are prepared to utilise legal discourse (eg, the abstract, essentialist and "violent" language of legal rights), but only where necessary to further this strategy. Black Feminist Criticism Black feminist criticism is a recent development in jurisprudence. It reacts against the tendency of feminist legal scholars to treat race and gender as mutually exclusive categories of experience and analysis. Black feminist criticisms attempts to decentre the subject position of feminists who make essentialist claims about race and gender criticism in the law has pushed feminist legal criticism to reconsider the subject position of women in its critical analysis of the law. It illustrates the challenge of postmodernism, because postmodernisms challenge to the primacy of modern theory seeks to decentre the identity of a universal concept of self in contemporary legal criticism. We saw this mode of thinking last week in CRT. Pragmatic Feminism Pragmatic feminists argue that feminism should not look to any one approach (eg either sameness or difference), but should consider that there are a variety of tools should be used wherever appropriate. Mary Becker and Margaret Radin are the best
102
Theories of Law
examples of this type of feminism. It is a peculiarly Unites States approach, because their reading of pragmatic draws on a long US philosophical tradition drawing initially from Deweys form of pragmatism.
Critical Race Theory NOTIONS OF RACE READ: Leiboff & Thomas LTC&P pp 463-470 OR LTIP pp 293-299 Davies pp 288-293 Our legal system has historically assumed that the subjects of law have no personal characteristics. However, the actual practices of law, as seen in the courts and in associated institutions that support law and justice, have in fact been highly susceptible to those personal characteristics, especially those which relate to matters race or ethic origin. You may recall some discussion of these matters from the material you read in Module 3 for instance, in Marxian theory, the work of the sociology of law and Jerome Frank. More recently, studies have been undertaken which have attempted to bring out and acknowledge those personal characteristics. This is the emerging disciplines of race and colonial theory. An associated area of study that has grown up recently considers the effects of colonisation by European nations, in particular, the colonisation of places where people were of different races. Underlying this entire new area of study has been a desire to unpack the idea of race, and what it assumes. As you will see from your reading of Davies, race is something which has historical connotations which assumes that Europeans have no race.
THE THEMES AND METHODS OF CRITICAL RACE THEORY READ: Leiboff & Thomas LTC&P pp 470-473 OR LTIP pp 299-303 Davies pp 316-324 Critical race theory in law is a movement which, even more than CLS and feminist legal theory, cannot be clearly distinguished from related work in associated disciplines, such as literature, history, philosophy and cultural studies. This is at least partly because critical race theorists, to an even greater extent than CLS and feminist legal scholars, have emphasised the importance and rhetorical power of narrative as a method. Breaking the traditional mould of "law review" articles, critical race theorists often write highly personal accounts of their own experiences, and draw upon and relate stories about the experiences of others. Such a technique is deliberate. Critical race theorists wish to eliminate ethnocentrism (ie, the tendency to produce discourses from the perspective of one particular culture or ethnicity - eg, Western European culture - while presenting those discourses as objective and impartial in their outlook). They explore, from the (political) perspective of "racial minority" groups, how racism has been inscribed within existing discourses, including law. This involves revealing the ways in which such groups have been written out of law, literature, history, philosophy, popular culture, etc. Arguably the most effective strategy here is narrative: giving voice to those who have
103
Theories of Law
been silenced, telling the "victim's story",2 rewriting histories from perspectives previously ignored, reinscribing the subject of legal discourse as one whose identity is always shaped by the particular ethnic or racial group to which s/he belongs. It is crucially important to respect the many differences in the way law and different ethnic and racial groups experience the legal system. For example, there are important differences between the experiences of "coloured" groups in the US and those of indigenous Australians, and the experiences of non-Anglo-Celtic migrant Australians are distinct again. In the US, the Bill of Rights has been central in the battle against racism, and figures prominently in the "consciousness" of minority groups, particularly African Americans and Hispanic Americans. By contrast, the relationship of indigenous Australians to the Australian Constitution and legal system has traditionally been closer to one of uniform oppression. Indeed, the devastating experience of European "colonisation" - compounded by the invisibility of Aboriginal and Islander peoples in the eyes of Australian law (at least prior to the Mabo decision) and their enduring "absence" (another euphemism) from law schools and the legal profession - is no doubt primarily responsible for the delayed emergence of critical race theory in the Australian legal context. In the US, critical race theory has for been a significant presence in the critical legal literature for the last 10 years. Their rejection of objectivity, respect for "Otherness", and commitment to antiessentialist writing have made critical race theorists generally receptive to the themes of postmodernism. Patricia Williams's innovative biographical literary style exemplifies the postmodern influence. In her book, The Alchemy of Race and Rights, Williams explores the tensions amongst the multiple subject positions (commercial lawyer, law teacher, black person, female) - not all of them legally recognisable which together constitute her "identity". Critical race theorists working in legal theory have not been so concerned to "deconstruct" their own personal identities or group racial identities, as to narrate their own experiences as instances of a specific ethnic (cultural) heritage. In this way, they hope to establish a speaking position for minorities, which takes as its starting point common experiences of subordination. With this aim in mind, critical race theorists (like many postmodern feminists) often tone down the strict postmodern insistence on the "plurality" of experience and the "violence" of abstract legal language. Instead, they are strategically electing to privilege concrete experiences, utilise legal rights discourse, and employ essentialist banners (eg, "Aboriginal women") to create political solidarity out of diversity. Against this, some writers - both inside and outside the movement - argue that there is a risk (if the lessons of postmodernism are entirely forgotten) that narratives will be accepted uncritically as "authentic" experiences that speak for all similarly oppressed people, supplying some magical "truth" about what is needed to overcome oppression. Marginalisation within Academic Legal Discourse One strand of critical race theory has analysed the various mechanisms by which racial and ethnic minorities are marginalised in the writings of other legal academics. For example, in 1984, the US critical race theorist Richard Delgado examined the
2
Mari J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" 87 Michigan Law Rev 2320 (1989).
104
Theories of Law
"studied indifference" towards "outsider writing" (literature produced by members of racial minority groups) displayed by the overwhelmingly white, male authors of US law review articles on civil rights. Delgado argued (somewhat controversially at the time) that this exclusion dangerously narrowed the perspective of the literature produced, and he suggested that white liberal authors should make way for minority scholars by shifting their attentions to other fields of scholarship. In 1992, Delgado maintained that, although the intervening years had yielded improvements, mainstream figures had refined their methods of marginalising outsider writing. From the point of view of the intersections of CLS, feminist legal theory and critical race theory, it is illuminating to consider two of the ways in which CLS and feminist legal theorists are said to exclude the viewpoints of racial minorities:
CRT AND RIGHTS READ: Leiboff & Thomas LTC&P pp 474-475 OR LTIP pp 302-303 Many critical race theorists also take issue with the ethnocentrism of CLS, particularly as revealed in its critique of rights. They argue that the assertion of legal rights bears a different meaning for oppressed groups (including racial minorities) than for the predominantly white, middle-class men who short-sightedly reject rights discourse as an instance of alienating liberal legalism. Patricia Williams suggests that whites view the world by focussing on personal self-possession; blacks see reality against a backdrop of physical and psychic dispossession. In criticising rights, CLS scholars, insufficiently self-reflective about the partiality of their own perspectives, overlook the political importance of rights as a strategy for dispossessed groups. It is a case of "those who have, telling those who do not, 'you do not need it, you should not want it.'"3 For those traditionally denied legal subjectivity, the right to claim "rights" has proved profoundly empowering. As Williams eloquently explains, it is politically naive and regressive to disclaim rights simply because, strictly speaking, they reflect liberal ideology and utilise abstract, essentialist concepts: "'Rights' feels so new in the mouths of most black people. It is still so deliciously empowering to say. It is a sign for and a gift of selfhood that is very hard to contemplate reconstructing (deconstruction is too awful to think about!) at this point in history. It is the magic wand of visibility and invisibility, of inclusion and exclusion, of power and nopower. The concept of rights, both positive and negative, is the marker of our citizenship, our participatoriness, our relation to others."4 In the Australian context, the continuing struggle of the Aboriginal peoples - for, amongst other things, citizenship and the vote (not granted federally until 1967), an end to their exploitation as slave labour on pastoral properties, the right to keep their children, adequate health care, housing and social services, an end to mistreatment by the criminal justice system, the recovery of stolen lands, the protection of sacred sites, self-government and the recognition of Aboriginal sovereignty - has been carried on
3
4
Martha Minow, "Interpreting Rights: An Essay for Robert Cover" 96 Yale LJ 1860 (1987) at 1910. Patricia Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights" 22 Harv CRCOMMON Law Rev 401 (1987) at 431.
105
Theories of Law
largely without appeal to formal rights discourse. As indigenous Australians join the international campaign for the recognition of the rights of indigenous peoples, we can also observe how quickly changing political and economic circumstances disproportionately affects the most marginalised peoples- note the changing fortunes of the Native Title legislation with different federal governments.
Colonialism and Post-Colonialism READ: Leiboff & Thomas LTC&P pp 475-481 OR LTIP pp 303-308 Davies pp 300-316 The neutral operation of the law has been seen most clearly as an agent of colonial interest in many of the doctrines which were introduced at the time of settlement by colonising Europeans. The effect of colonisation at the most basic level subjected indigenous people to the applicable law designed for the new colony and the existence of indigenous law was denied. You are all familiar with the impact of cases like Mabo and Wik in breaking down the legal fiction of terra nullius. But other matters to do with the interests of indigenous people have not been recognised in Australian law. For instance, indigenous cultural practices or connection with land is only given validity within the language of experts (eg anthropologists) who are allowed to prove the existence of such phenomena. This is an example of the effect of post-colonialism ie the continuation of colonial practices despite the rhetoric and assertions of their demise. In order to demonstrate the effects of some of these practices, scholars have refocussed characteristics and designations onto European people to show how this occurs. A classic example would be the subjecting of Christian practices to the same anthropological assessment as that which applies to indigenous spiritual beliefs.
106
Theories of Law
Workshop Nine Activities

Activity One
Syndicate
FEMINIST LEGAL THEORIES, CRITICAL RACE THEORY, POSTCOLONIAL LEGAL THEORY Syndicate Session Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). 1. Critique these decisions from the point of view of Liberal, Radical, and Cultural feminism.
Activity Two
Whole group
In 2007, the Howard Government enacted the Northern Territory National Emergency Response Act 2007 (Cth). The Intervention, as it is known, included several controversial measures, including the compulsory acquisition of indigenous townships on other than just terms and the quarantining of a portion of welfare benefits to all recipients in designated communities. 2. Critique the operation of the Northern Territory Intervention from the perspective of Critical Race Theory and Postcolonial legal theory. 3. In order to implement the scheme, certain provisions of the Racial Discrimination Act 1975 (Cth) which prohibited discrimination were suspended by the Commonwealth Government. In previous weeks we have discussed the potential implementation of a Charter or Bill of Rights in Australian law. Consider whether Australia should introduce a constitutionally entrenched prohibition on racial discrimination in light of the NT Intervention, from the perspective of: a. Utilitarian theory; b. Liberal theory; and c. Natural law theory.
107
Theories of Law

POSTMODERNISM
108
Theories of Law

a basic understanding of the postmodern project; how this can illuminate the operation of law; an understanding of the methodologies of deconstruction; and an appreciation of the practical application of postmodernism in law
READING Prescribed Reading: Leiboff & Thomas LTC&P Ch 12 or LTIP Chapter 10 pp 227-250 Davies Chapter 8 Further Reading: Lloyd Chapter 15
INTRODUCTION READ: Leiboff & Thomas LTC&P pp 381-392 OR LTIP pp 227-231 Davies pp 325-337 Postmodern legal theory aims to provide us with ways into seeing the context of law, and to assist us in providing strategies for reviewing the operation of the law. In order to understand the ideas underlying this concept, we will need to move outside of standard forms of legal theory, to look at theories underlying language, and textual meaning. We will also look at the ways in which notions of truth as a concept are reconsidered by a postmodern critique of law, and we therefore are led to ask questions about legal objectivity. You should look back to the material on modernism at this point, and consider the effect of the theories of law which typify the ideas of modernism, such as positivism. How well do these notions deal with the differences of lived experiences, by their desire to provide an abstract certainty to apply to all circumstances? Postmodernism challenges not only the claim of modernist methodology to an ability to derive a neutral methods and practices. What it aims to do instead is to suggest that law recognise difference, and that aspects of a just outcome rely on this recognition. Postmodernism arose as a critique of modernity, by recognising the diverse nature of the human condition and experience, in particular those who had been excluded in some way. In law, this is easily identifiable as the rational actor in law who forms objectivity: a.k.a. the reasonable man. Pomo will always question and critique the
109
Theories of Law
assumptions set out in this way, in an attempt to see how the reliance on this form of objectivity in law may have hidden injustices from view in the past.
THE LEGAL SUBJECT READ: Leiboff & Thomas LTC&P pp 392-397 OR LTIP pp 231-233, 236-240 Davies pp 349-358 This form of thinking reconsiders our ideas about the subject in law. It says that the rational subject of Enlightenment thought is not what we had always thought it had been. Context and circumstance make up who we are. Descartes external observer of the world is flawed. Many of these ideas were set out up by Freud with his observations of subconscious thought (look back to Frank on this as well) that is, we are not always able to fully judge our thoughts and behaviours, as had been assumed by modernity. FOUCAULT POWER/KNOWLEDGE READ: Leiboff & Thomas LTC&P pp 406-409 OR LTIP pp 246-248 Davies pp 358-364 We can learn a lot about the structures and processes of law through the work of French philosopher, Michel Foucault (1926-1984). His work was generally concerned with a challenge to rationality, and the inevitability of the legitimacy of power. His value for us in law is his development of the notion of linking power to knowledge: in effect that knowledge is an effect of power. Foucault took the critiques of the Frankfurt School and adopted a genealogical analysis of the transition of power in particular institutional sites such as prisons, hospitals and schools. Foucault followed Marx in pointing out that institutions have the capacity to create a regime of truth, against which everything else stands as falsehood. However, unlike the belief that it power comes down from the top, Foucault has shown us how this is more locally driven, so we can derive from his work the idea that real decisions in law, for instance, are more likely made in a solicitors office than the High Court. Law is powerful not because its decision-makers are the top of a hierarchy rather, it is the systems which make up law, what becomes a legal problem, who goes to a lawyer, and what the lawyer recognises as a problem, and so on.
LANGUAGE READ: Leiboff & Thomas LTC&P pp 397-405, 409-411 OR LTIP pp 234-236, 240-246, 248-249 Davies pp 337-349, 364-384 The techniques of postmodernism rely on understandings of the formative work of language in comprehending meanings. Language does not pre-exist the world, though, and the meanings set out by it do not exist UNTIL it is set up within societal bounds. This challenges modernisms claim to set meanings of language, such as
110
Theories of Law
Harts language theories in law. If this is so, this particularly challenges us as lawyers, when it comes to interpreting statutes, or making assumptions about legal principles. The effect is that all texts are interpreted by readers who cannot help but put own meanings /interpretations the text, and that, as language and meaning changes, the understanding of the text will change as well. Read what Davies says about the readings of the constitution on this point. We will also come across Derrida, through his deconstructive method of linguistics, exposed the limitations of all means of communications to exist in a "pure" form. He identified every communication ("text") as subject to the mediated understanding of those who receive it. Everything is defined not only by what it includes, but what it excludes. This effectively means that whenever we use a word or a meaning, we have to have an opposite meaning against which it is constructed. This means that the dominant term excludes "others" placed in opposition to it. However, the other has to be there in order to confirm the dominance of the first term: for example, if you put the words man/woman together, you would be putting the dominant first/inferior or other second. What this aims to show is that language and meaning is not a necessary or natural given, and that deconstruction enables the unspoken opposition to be heard. Think about this idea: when we now talk about the reasonable person, whom do you see in your minds eye? This expression of Postmodernism, which focuses on the production of texts (or linguistics) as the site of meaning, is called Poststructuralism. Poststructuralism examines the way in which thoughts and ideas become recognised as "thoughts" and "ideas". Context As a method of legal critique, postmodernism argues that there is no possibility of talking about a problem without siting it in its particular context. This means the legal actor, or subject, will always be considered by postmodernism, in relation to any specific problem. Truth? Postmodernism exposes the political truths behind and within law. It exposes the oppression and exploitation embedded within Enlightenment values. It is a critique of individualist epistemology. Foucault considered the way in which institutions have the capacity to create a regime of truth all else stands as falsehood see the description of Larner below. He takes this to a level of showing how the reason of rationalism contains exclusion of the deviant, as an effect of methodologies of thought that emerged in age of reason. This provided an excuse to marginalise and exclude "others". This sets up ways for excluded voices to be heard. Foucault points out that the construction of a totality of truth represses any difference beyond that truth. These excluded ideas then become "untrue" (in legal terms, "bad law. Here is a simple example - in discussing how institutions create "Truth", Larner's model of truth making as a four-stage process can be adopted (see (Larner, C., "Enemies of God - The Witch-Hunt in Scotland" (London: Chatto and Windus) 1981):
111
Theories of Law
Firstly, the powerful disapprove of something outside their own orthodoxy, and articulate their own orthodoxy as correct - this is then the "truth". Secondly, this "truth" is enforceable by the regime. Thirdly, the regime enforces the truth Fourthly, particular people and groups are nominated to be the truth-tellers within the regime.
Can we see how this can be applied to law? Larner's account does not provide an analysis of the transition of truth to untruth and vice versa, an analysis of the selection of truth-tellers, or an examination of questions of power - gender, political, racial and religious power. Law aims to be the means of truth-creation. Through legal adjudication, matters previously excluded from legal discourse become contested. If the proponent of the unorthodox interpretation is successful, their interpretation becomes truth, transforming the old "truth" into "untruth". Within the framework of the law, there can exist many truths: and this recognition is inconsistent with an assertion that law is the child of a truth (such as objectivity). Hence, there can exist within law many solutions, depending on the specifics of each contested matter. Giving up the idea of a metanarrative allows law to view the array of other discourses and solutions that were previously beyond the boundaries of law as a normative discourse. It can therefore allow for reconstruction of law, either through new legislation, or the interpretation of a new principle, which explains the methods underpinning the assumptions set out by the decision. In another simple example: compare how well judgements now explain their rationales and understandings of the law and the context of the decisions made. This reading of postmodernist critique rebuts the criticism that Postmodernism frequently incurs: that postmodernism attacks all meaning to such an extent that there is no meaning and there is no reality. The effect of this for law may be to listen to "outsiders", and consider non-legal narratives as a way to assist with reconstruction of law. It is also to prevent the closure of law. It may also provide a foundation to give voice to the marginal in society, thus increasing the access of all members of the community, whatever their differences, to law.
112
Theories of Law
Workshop Ten Activities

In Session 1, which is a whole group session, depending on the structure of your workshop, your tutor may move in and out of these questions, or will work through the theories and deal with some, but not all, of these questions in the time available. If we have time, we will look at some of the additional questions in the syndicate session
Activity One
Syndicate Read the posthumous reproduction cases Re Grey, Baker v State of Queensland, and Re Denman (each available from Blackboard). Consider how a postmodern theorist might analyse these decisions, including in your discussion: o any binary oppositions which might be apparent in the language of the judgements; o how a deconstruction of the underlying issues might be carried out; and o the role played by Foucaults concept of power/knowledge in determining the outcome of the cases.
Activity Two
Review session In your syndicate groups, you are asked to prepare three questions from separate modules to help you start preparing for your exam. The questions can be comparative or be limited to a specific topic. As well as setting out the questions, you also have to explain why you wanted those questions answered further. You need to think about the kinds of questions you would like considered for the final lecture for this unit in Week 13. Your syndicate group will be limited to asking 3 questions only. You must agree on the questions and one representative from your syndicate group will be responsible for emailing the questions to the lecturer.
113
Theories of Law
PART E
PAST REFLECTIVE JOURNAL FEEDBACK
Past Exam Grouping Past Exam Questions Past Exam Feedback
114
Theories of Law
Sample Reflective Journal Feedback

In this unit, we give you generic feedback about your reflective journal marks which explains why you received the mark you did. All RJs were marked by one marker, and then reviewed by another marker. If your mark was between 8.5-10 (7): You were likely to have demonstrated an exceptional understanding of your relationship with the text, your understanding of your work in relation to that of your peers, your own insights into your approaches and limitations, and showed outstanding levels of original thought and closely integrated responses and specific parts of the text. If your mark was between 7.5-8 (6): You were likely to have shown some very good insights, had undertaken a thoughtful response to your development over semester, and will have undertaken a very good understanding of the relationship with your peers. You did not achieve quite the high level of response awarded to the 7 range. If your mark was between 6.5-7 (5): You were likely to have developed your response beyond treating the RJ as a Q and A, and showed some refection based on the text. This group of marks did not develop their approach towards learning styles or relationships with peers beyond a descriptive approach, which did not show a real understanding of what impact this may have had on your process of development. Some journals offered a generic assessment of like and dislike of material or responses without further interrogation of how that response was achieved. Some very good book reviews or descriptions about the text and its relationship with the knowledge of the theories were marked at the higher end of this grouping. They did not end up in the higher grades, as these responses were generally unable to explore the process of development that occurred throughout the semester. Some answers at the top end of the range just tipped under the range for a 6 because there was not quite enough development of your understanding and reflection on your development, or because your responses about the group work were descriptive rather than developmental. If your mark was between 5-6 (4): You were likely to have dealt with the prompts in the RJ question as a Q and A without delving into the reasons why the prompts were asked, namely as a springboard. You demonstrated very little thought about your reflection, with a bare link back to the reading, and would have tended to catalogue or identify a learning style without explaining why. Some of you may have simply summarised the authors argument, undertaken a book review, or just set out your knowledge of theorists, or how you now understood so much better without showing why. You may have broadly generalised about the text. In connection with the group activity, you were likely to describe your encounters rather than explore why there may have been differences, despite the RJ question directing you not to do this. You were likely to have added it after the completed
115
Theories of Law
journal showing that you did not understand how this work fed into your completed response. If your mark was under 5: In this case, you will have not shown any effective understanding of the text, or shown that you had actually read it, would not have shown any real process of understanding about your development, or have adopted a diary approach without relating it to your development. Others used the wrong reading, resulting in a mark of 0. Some of you changed for in progress component, resulting in a reduction in marks. If only one part was submitted, or no reference made to the workshops, or you did not attend the workshop, then your marks were reduced, in the terms set out in the study guide, as it was impossible for the marker to be able to assess what reflection had occurred, or what changes were evident between the initial and the later response. Marett Leiboff and Mark Thomas: 7 June 2005
116
Theories of Law
Sample Examination Groupings

SEMESTER ONE, 2003Availability: 19 May 2003 (Week 12) As part of the examination process in this unit, you are given your 'exam groupings' at the commencement of week 12 of semester. You choose ONE only combination of theories. You can obtain guidance from previous examinations and examination groupings, which are found in Part G of the Study Guide. You should note that the words describing topic areas to be covered in each question are those that will appear on the examination paper itself. The groupings are set out as follows: Question One This will refer to, and contain, a short extract from a recent judicial decision. The theories to be covered are: Relevant historical natural law theories Relevant aspects of Jeremy Benthams theories; and Postmodernism. Question Two This will refer to, and contain, a description of a hypothetical situation. The theories to be covered are: Kelsen; Dworkin; and Marx plus at least one subsequent extrapolation of Marxist thought. Question Three This will refer to, and contain, a short extract from a judgment. The theories to be covered are: Finnis American Legal Realists; and Post-colonial legal theory. Question Four This will refer to, and include, a quote. The theories to be covered are: HLA Hart (as positivist); CLS; and Postmodernism.
117
Theories of Law
A summary of the modules and the topics (in brief form only) is set out as follows. Module 1 1 Relevant historical natural law theories Module 2 Relevant aspects of Benthams theories Kelsen Dworkin Marx plus at least one subsequent extrapolation of Marxist thought American Legal Realism CLS Module 3 Module 4 Module 5 Postmodernism
Finnis
Postcolonial legal theory Postmodernism
HLA Hart as positivist
118
Theories of Law
Sample Exam Questions

Past Exam Paper 2003 QUESTION 1 R v MJR [2002] NSWCCA 129 examines whether a court sentencing for an offence committed in the distant past should apply current sentencing guidelines or those which were operating at the time of the offence. The offences in question were a series of sexual offences committed by the accused against two of his daughters in the 1980s. Read the following extract from Mason Ps judgement in MJR: 45 Stated bluntly, it is wrong for a court to apply earlier patterns that have been repudiated as erroneous in the single eye of the law. There is tension between acknowledgement that judges may change the common law and the still useful fiction known as the declaratory theory. One effect of the declaratory theory is the masking of individual responsibility for judicial decision-making, thereby promoting public acceptance of the rule of law. The theory was and remains attractive because, as Professor Cross pointed out "it concealed [the fact] that judge-made law is retrospective in its effect" The declaratory theory is not inimical to change in the common law, but it attributes change to clearer perceptions of the grand tapestry of "the Law" as distinct from individual judicial whim. Isaacs J described the theory in classical terms when, in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australia (1913) 17 CLR 261 at 275, he said: A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong, in the opinion of those whose present function is to interpret and enforce the law. 48 Later, in a celebrated passage he referred to the judicial oath which binds the judge "to do right to all manner of people according to law" and continued (at 278): If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right." 49 Our system of law works on the basis that it is what today's appellate courts declare to represent "the law" that binds all inferior
46
47
119
Theories of Law
courts and, through them, all citizens of a polity governed by the rule of law. Justice according to law means that all judges must accept and apply the latest authoritative declarations. Analyse these statements from the perspective of: relevant historical natural law theories; relevant aspects of Benthams theories; and postmodernism. QUESTION 2 Consider the following hypothetical situation: Arcadia is a small republic in Africa. For many decades, it has been ruled by a military dictatorship known to have committed numerous human rights abuses against its own citizens. It has also been suspected, for many years, that it is in breach of its undertakings in international law relating to nuclear nonproliferation treaties. After a prolonged period of diplomatic negotiations aimed at forcing compliance, an alliance of Western democracies mounts a military invasion of Arcadia, with a view to deposing the current regime, bringing about compliance with international law, rebuilding and modernising the economic and commercial institutions in the country and instituting a democratic form of government. Some months into the campaign, many of the institutions of government, including the courts and the judiciary, have broken down. While the invasionary force is still some 50 kilometres outside the capital, the regime has suffered substantial losses to its military personnel and formally surrenders. The damage done to communications networks during the fighting leaves the regime with no capacity to control elements of the army, as a result of which the alliance forces are unable to enter and secure the capital and establish any form of interim administration for a number of days. In the vacuum left by the fall of the original regime, including the absence of any police force, widespread looting and civil unrest breaks out in the capital, with considerable loss of life as the inhabitants seek to protect their property against looters by force. On the basis of the information provided, assess the contribution which each of the following theorists could make to an analysis of the situation described above: Kelsen; Dworkin; and Marx plus at least one subsequent extrapolation of Marxist thought.
120
Theories of Law
Question 3 In Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, the High Court had to consider whether the Yorta Yorta people could claim native title to an oval-shaped area of public lands and waters in northern Victoria and southern New South Wales, bisected by the Murray River. The claim failed. In their original application the claimants provided some anthropological material setting out what had happened to the Yorta Yorta people since European settlement in the area 155 years before: there had been massive alterations in technical, environmental and economic circumstances, depopulation from disease and conflict and the separation of children from their parents, ceremonies and other traditional customs and practices had been forbidden, the use of traditional languages had been inhibited where they lived was controlled. At various times, different policies - absorption, segregation, integration had its effect. As part of their decision-making, Gleeson CJ, and Gummow and Hayne JJ decided that they had to find out if the traditional laws and customs of the Yorta Yorta people, concerning their rights to lands and waters, was a body of norms (that) has a continuous existence and vitality. (para 48). As part of addressing this issue, their Honours considered the inextricable link between a society and its laws and customs to find that the Yorta Yorta people did not have this necessary link. Here is an extract from their Honours reasoning: Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone's words, "socially derivative and non-autonomous". As Professor Honor has pointed out, it is axiomatic that "all laws are laws of a society or group". Or as was said earlier, in Paton's Jurisprudence, "law is but a result of all the forces that go to make society". Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. (para 49) if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise. (para 50) If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. .... (para 53) In so far as it is useful to analyse the problem in the jurisprudential terms of the legal positivist, the relevant rule of recognition of a traditional law or custom is a
121
Theories of Law
rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty. It is not some later created rule of
122
Theories of Law
recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty.. (para 54) Using all the material provided to you, undertake an analysis and/or a critique of the approach of their Honours using each of the following theories Finnis The American Legal Realists Post colonial legal theory Question 4 because law reduces, simplifies, excludes otherness and dominates the field of its operation, it is not the same as justice. Justice, rather, requires a reflective approach to the application of law: an approach which recognises the inability of law to distribute justice on a case-by-case basis. Law fails to recognise the particularity of cases, the otherness of one case to the next: instead it reduces them all to rules and variation on rules (analogies, precedents, distinctions, policies, and so on). It is important to understand that law is necessarily like this: it cannot recognise all differences, but simply provides a way of proceeding (without which we could not go anywhere). Justice, on the other hand, cannot be determined in advance: if it exists, it is at the point where law fails. It is therefore not possible to lay down rules which will ensure justice rather justice requires a recognition of the uniqueness of each case, and the reinvention of the law in it own application to the case. Margaret Davies Asking the Law Question 2nd edition, p 347 Evaluate these observations using: Hart (as a positivist) Critical Legal Studies Postmodernism
123
Theories of Law
Sample Exam Feedback

Semester One 2003 Here is some general feedback on the exam. Remember that we were marking you on the same criteria on which all other content-based aspects of the unit were assessed. You might want to think about the criteria again in the light of your result. If you view your answer, you will find the marked criteria sheets that your examiner used, and this may assist you in deciding if you want your mark reviewed. What went right: The majority of you did a good job of answering your exam question, as evidenced by the mark you received. You generally focussed on the question as set and made some attempt to direct your answer toward the question. A number of papers were outstanding in terms of their understanding of the theories and their implications, directing their answer to the question as set, and showing deep understanding of the theories by knowing what aspects were relevant to the question. A small number of papers also demonstrated extraordinary capacity to think and develop an original argument of an extremely high level, showing an outstanding ability to develop a thoughtful and directed piece of writing of the highest order. What went wrong: A number of answers did not deal with the question asked. Some answers described the theories well, but were not related to the question as asked. Some of these papers were very well argued, but did not address the question, and achieved good, but not excellent marks. As indicated on many occasions throughout semester, if all you did was describe the theories asked of you, you would be unable to pass the exam, on the basis of the criteria on which you were assessed. Prepared answers performed poorly as you were told a number of times throughout semester, you could not answer a question effectively if you already had an answer in mind. A tendency to merely attempt to learn off a set of notes about the theories, rather than showing the deep understanding needed to be able to address the question, resulted in poor marks. Attempting to try to come into the exam with too little knowledge of the range of theories made it impossible for some answers to come to grips with the question. You were warned about unsubstantiated polemic: eg I think Kelsens theory is good. It is irrelevant what you think about a theory without having shown an understanding through a developed argument, and when this occurred, it showed a poor understanding of the theories, in many cases, and a tendency to demonstrate an inability to answer the question as a whole. Some answers, unfortunately, did not get a basic description of the theories right, or did one theory well and others at a very poor level, or, perhaps not at all. These answers could not reach the pass mark. A very small number of answers described theories which did not relate to the question, wrote answers that did not demonstrate any knowledge of the theories asked, or did not mention theory at all.
Theories of Law
These answers also failed, and represent the lowest mark in a number of questions in the table below. Question 1 2 3 4 TOTAL Number sitting 160 65 75 68 368 Highest /65 60 62 62.5 62.5 62.5 Lowest /65 4 29 12.5 0 0 Mean /65 36.9 37.4 46.8 44.9 40.3
The distribution of grades for the unit for all aspects of assessment was: Grade 7 6 5 4 3 2/1 Percentage 8.4% 20.4% 26.4% 41.3% 1.4% 2.2%
Mark Thomas Unit co-ordinator Theories of Law 9 July 2003
125
Theories of Law
Exam Question-by-question Feedback

Question 1 General There were some fairly obvious cues in this question to trigger connections with elements of each of the 3 theoretical approaches. Most of you were able to recognise these cues. Better answers did not simply take these cues at face value and went beyond the literal words of the extracts to try and articulate the conceptual issues raised. Some of you tended to focus on isolated phrases in the extracts and hence produced relatively shallow and 2-dimensional responses. For example, in para 46 Mason is doing much more than claiming that the declaratory theory has been a mechanism for masking judicial whim - and better answers considered what the grand tapestry of the law might be and how we would know if judicial perceptions of this were in fact clearer or simply different over time. A couple of excellent papers grappled with the concept of justice according to law and asked what that meant from the various perspectives. There was significant potential in this question to examine the relationship between law and justice and to consider, inter alia, whether it is necessarily the case that a recent judicial decision is any more just than an earlier one - regardless of its legal authority. Historical Natural Law Some answers relied heavily on the work of John Finnis. This was, of course, not what the question asked for Finnis is a contemporary natural law theorist not historical. Good answers analysed the issue of whether there is any fundamental benchmark by which we can test the validity and justness of laws and did this by reference to specific aspects of NL theory - although there was little to be gained from trying to comment from the perspective of every historical NL theorist. Although most papers attempted to find some relevance to a teleological perspective, there was much that could have been made from a consideration of Lockes thoughts about the role of law in a civilised community. Bentham Again, some less successful papers tried to incorporate too many aspects of Benthams perspectives in their analysis. The effect of this is that too much time is spent on description and the analysis is spread too thinly to produce a credible commentary. Better answers limited their application to a few highly relevant positions - such as Benthams specific criticisms of the inherent weaknesses of a common law legal system. Postmodernism There was ample scope in the extracts to engage in a postmodern analysis of the conceptual issues raised. Again, too many papers launched into a general discussion of what they thought to be the postmodern perspective which resulted in two fundamental weaknesses: There was a lack of identification of specific conceptual issues. The issue of judicial whim in para 46, for example, was commonly engaged with at some level, but not many papers considered the claim that contemporary judges have a clearer perception of the law than their predecessors and whether that (if it
126
Theories of Law
is true) is a phenomenon which is substantially different from mere judicial whim Lack of specificity: Postmodern legal theory represents a diverse range of theoretical positions and there is little to be gained from making such observations as PoMos would say or PoMos would agree with. Better responses selected relevant Postmodern commentators and related elements of those specific perspectives to conceptual issues raised in the extracts.
Question 2 General Some of the papers relied on broad, prepared coverage of the theories and the application to the question appeared almost as an afterthought. A larger number of papers did attempt to evaluate the theory in terms of the facts, but with no real selectivity about what parts of the theories were most applicable or relevant. If part of any theory is only marginally relevant, but you still want to apply it, thats fine but you have to persuade the reader that the application works (just as you have to persuade a judge that your, perhaps novel, argument on the laws application to facts can work). Otherwise you have to show why it does not work, pointing out where a particular theory falls down or doesnt travel well. Good papers selected the most readily applied elements of the three theories and related them specifically to the facts, dealing with the issues clearly. The very good papers went further, attempting to show why certain aspects of a particular did not help in the situation, or critiqued each theory in terms of the question. Kelsen Most papers did a reasonable, although fairly basic, coverage of Kelsens theory of norms with reasonable understanding of the Grundnorm (although a few confused the Grundnorm with the countrys constitution). Some did a reasonably good application of the hierarchy of norms to the domestic legal system, but ignored the application in the international sphere. If they showed good understanding of Kelsens norms and the concept of a closed system of law, these will have received a reasonably good mark. When looking at the domestic legal system as a closed hierarchy, the problem of overthrow and establishment of a new Grundnorm should have been dealt with, but in some cases, answers seemed confused about efficacy and when/whether transition occurs. Better papers also discussed Kelsens attempt to extend his theory into the international arena and evaluated it in terms of the given situation. One or two good papers critiqued Kelsens application of his theory to the international arena and discussed it in terms of the Grudnnorm, international law and the given scenario. Dworkin The scenario given could have provided you with an example of how Dworkins theories may not work well beyond the liberal democratic system. Too many answers tried to fit bits of every aspect of Dworkins theories (and he has ranged over many legal subjects) into their answer. This was an ineffective way to tackle the question. For example, discussions of Hercules J and the theory of adjudication were not
127
Theories of Law
directly applicable (although some of you managed to construct a scenario eg a judge dealing with looters after the fall and dealt with it cleverly in that way). The main elements of Dworkins theories that could be evaluated in terms of the question came from the work on individual rights. But extensive discussions of a right to produce pornography were not useful in this context, unless they went further and applied the reasoning to the scenario itself. Most of you discussed the basic elements of the rights thesis and deal with issues of rights of individuals under the dictatorship, and tried to deal with the question of what Dworkin would say about the protection of rights during the period of lawlessness. (However a number of answers found it difficult to assess whether Dworkin would privilege the right to property over the right to life.) Some good papers approached the problem by supposing what Dworkin would like to see for the new legal system, to be set up after the fall of the old. A few managed to introduce a relevant discussion of Dworkins concept of the chain novel and what might have happened to it if the old justice system has been completely destroyed perhaps an instance of the theory breaking down? These papers showed some creativity combined with understanding of the material. A number of papers, however, simply described the chain novel concept without applying it to the situation. Marx and extrapolations of Marx One problem that many of you seemed to have made for yourselves when tackling this question in terms of Marxian extrapolations was trying to cover too many possibilities. Most dealt with orthodox Marxism at least in a basic way, with the supposition that the repressive regime would have a small ruling class dominating the mass of people, using ideology and probably capital. A number of papers sought to argue that the period of lawlessness was the revolt of the proletariat an approach which was not generally successful. A very few made a good attempt to discuss the period of lawlessness and looting of property in terms of breakdown in the system of capitalist power and associated breakdown in laws effectiveness. The best of the extrapolations that were used were discussions of hegemony, also the Frankfurt School and the dominant groups use of media, communications technology etc. Some papers picked out useful elements of Hunts work eg law as politics. Too many answers produced a confusing mixture of theory, and had difficulty with application. Some of the theorists taken as Marxian extrapolations demonstrated fundamental misunderstandings, either of the meaning of the word extrapolation or of the theories themselves: Weber, a staunch admirer of capitalism, did not extrapolate his theories from Marx. Neither did Durkheim. It was evident in the lectures that these theorists were not extrapolation of Marxian thought, but were dealt with in a separate category.
Question 3 General Good answers gave a balanced, multi-dimensional response; dealing specifically with the approach taken by their Honours and relating their analysis back to particular
128
Theories of Law
issues in the extract at every opportunity. Less well-developed answers tended to treat the issues at a relatively superficial or emotive level. These failed to see the divergent possibilities inherent in answering the question and sought to establish one `answer to each theoretical idea. A number of answers focussed on the legal, social and moral problems surrounding native title rather than attempting to analyse and/or critique the approach of their Honours. Jurisprudentially-inspired commentary on Australian history was insufficient in terms of answering the question. The approach of their Honours needed to be looked at from the nominated theoretical perspectives, meaning that an historical perspective was of value only if it made explicit the link between history and the approach of their Honours in the Yorta Yorta case under consideration. Many of you offered up a discussion of how their Honours should have decided (according to the theoretical approaches) rather than an analysis and/or critique of what and how they actually did decide. This difference in emphasis meant that many answers didnt properly analyse or critique the decision and were less likely to engage with or reference specific parts of the text provided. Finnis Analysis and critique from this theoretical perspective was generally well done. Wellconsidered answers listed some or all of the basic goods, but importantly detailed their relevance to the Yorta Yorta decision and relating this back to the approach of their Honours. Whether you argued that none, some, or all of the goods were relevant, your perspective had to be justified and supported. Listing (or not listing) the goods and the components of practical reasonableness without stating why or how they were relevant (or not) was of limited value. Similarly, a discussion of the goods in the historical context of Australia without demonstrating how this affected/was perpetuated by the approach of their Honours failed to address the question. When discussing community good, some answers recognised indigenous and nonindigenous communities could be taken into consideration. These answers did not seek a definitive answer of whether `Finnis would agree but analysed and critiqued the approach of their Honours in terms of the impact of the decision on the Australian community taken as a whole and on the Yorta Yorta community, as well as the arguments for and against the decision as it stands in terms these communities. A number of answers which concluded that the decision was unjust recognised that Finnis would nonetheless argue that this was necessary for the good of the community. Though reaching this point however, many answers did not go on to contemplate whether or not their Honours had such a justification in mind, nor did they seek to criticise this aspect of Finniss theory from another theoretical perspective (Postcolonial Legal Theory for instance). Frank Many of you mentioned bias without stating which particular biases may be relevant in this case (ie: racist, cultural, western, economic, spiritual, etc) and how this may have affected the decision. Good answers related the idea of bias to the case at issue
129
Theories of Law
hypothesising as to what may have determined their Honours approach. Answers that said there was no evidence to suggest any bias seemingly missed one of Franks points. Many answers mentioned fact scepticism in a very general way without attempting to apply the theory to the question. Good answers adapted the idea of `fact scepticism to the approach of their Honours, examining what facts their Honours included/excluded and what facts needed to be proved and highlighting the significance of this for the case. Llewellyn Answers came to differing conclusions as to what style of judging their Honours had adopted and were generally able to substantiate a claim either way. The best answers were those that considered both styles, utilising parts of the extract of the Yorta Yorta decision in order to substantiate their assertions as to how they argued their Honours had judged. Most answers dealt well with the general propositions about predictability and law jobs, although many answers treated these without going into sufficient depth or relating these general statements back to parties in the Australian legal landscape the contrast between predictability for indigenous people or for white landowners, for instance. Post colonialism Many had an intuitive, personal response to the irony inherent in the `continuing connection requirement when the system requiring it is the same that broke the connection in the first place. However, some of you had difficulty directing PoCo towards an analysis and/or critique of the approach of their Honours by discussing this unjust premise or the typically western notion of `society, the inability of white law to recognise spiritual connection, the use of anthropological evidence, or the idea of indigenous law as a dynamic system. Those of you who used PoCo to vent their feelings of injustice about the oppression of the Yorta Yorta tended to conclude that `PoCo would disagree with the decision, which is fairly shallow. Excellent answers used PoCo to delve in to the postcolonial dilemma and deconstruct the approach of their Honours on a sophisticated level. Some of you spent a great deal of effort seeking to `prove why postcolonial legal theory is relevant to the Australian context. Arguably this does not require a great deal of justification and could be dispensed with in a sentence or two. Others asserted that their Honours must not be aware of the history of white oppression in Australia. These answers suffered as they did not engage with the political, theoretical or sociological nuances negotiated by their Honours in the Yorta Yorta decision; citing ignorance as the only possible explanation. These answers were necessarily wide of the mark.
130
Theories of Law
Question 4 General This question was generally answered very well. Better answers showed a good understanding of the theories without needing to provide a summary of every aspect of each theory, focusing more on specific relevant aspects of theory, and engaging in close analysis of and engagement with the quote, rather than discussing justice in a broader sense. Poorer answers, however, spend too much time explaining the content of the theories and only a couple of sentences were devoted to applying the theories to the question. Many of those who performed poorly misunderstood some or all of the theories and/or came to dubious conclusions when trying to apply the theories to the question. A small number of answers did not attempt to address the question at all they received very poor marks. Another common trap which was evident from many responses was lack of planning. Some responses lacked coherence and logical flow, ie. they did not put forward a cohesive argument, did not argue their case clearly enough, and/or jumped from point to point or theory to theory with no logical connections being demonstrated. The importance of planning your response cannot be over-emphasised, and lack of planning is very obvious marker. However, overall, the answers to this question were of a high standard. It was pleasing to see some people use cases to illustrate their points, and there were some very clever and original responses to the question. Hart Hart was generally dealt with well. Better answers used Harts thoughts on critical reflective attitude, the hierarchy of rules and the open texture of language to demonstrate that justice was under-valued by Hart, concluding that his main concern was validity. Those who speculated over whether officials critical reflective attitude and the application of precedent allowed for some intrusion of justice into law tended not to argue this well. Poorer responses devoted a lot of time to describing Harts hierarchy of rules (many reproduced the diagram in the text) without considering how this related to the Davies quote. Some misunderstood the rule of recognition and others misunderstood the distinction between the internal and external point of view. Critical Legal Studies Most responses demonstrated a good general understanding of CLS, and many responses were able to cite individual theorists ideas. However, few responses were able to effectively use CLS to engage with the Davies quote. Those who did attempt to apply CLS to the quote came to a wide range of conclusions, some of which were well argued. Some responses demonstrated a misunderstanding of the concept of reification, and only very few of those who did understand it were able to relate it to the Davies quote. Also, some people fell into the trap of discussing feminism and critical race theory CLS should have been discussed as a theory in its own right.
131
Theories of Law
Postmodernism Most responses demonstrated a general understanding of the central tenets of postmodernism, although the majority of responses failed to note that the Davies quote was referring to Derridas views on justice. Very few answers attempted to explain Derridas theory of deconstruction in relation to the quote. Most answers, although dealing well with postmodern theory as a broad concept, did not engage with specific theorists or aspects of postmodern theory.
132
Key Administrative Dates

Key dates for students include the dates of supplementary and deferred examinations, QTAC offers, and closing dates for lodging various enrolment and admissions forms. Due dates and deadlines are listed for each month of the year in Key Administrative Dates. http://www.studentservices.qut.edu.au/info/calendar/
Legal Citation Guide

The Legal Referencing Style Guidelines below are to be used by students for all formal legal writing in the Law Schools undergraduate program, eg for the citation of cases, articles, books and legislation. http://www.law.qut.edu.au/files/Legal_Reference_Style_Guide.pdf

Lwb333 SG Sem1 12

Загружено:

Сведения о документе

Исходное описание:

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Lwb333 SG Sem1 12

Загружено:

Авторское право:

Доступные форматы

Theories of Law

LWB333 Study Guide Semester One 2012

Study Guide Semester 1, 2012

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

DIARY CRITICAL DATES

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

PART A: Unit Material

WHAT IDEAS LIE BENEATH THIS RATIONALE?

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

What is the purpose of knowing this content?

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Teaching and learning approaches

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Final take-home exam

Workshop participation 1-6 30% Internal Individual Throughout semester

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

External online discussion participation: 30% (external only)

Workshop participation 1-6 30% External Individual Throughout semester

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Reflective journal: 10% (internal and external students)

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Timeline and submission requirements Activity Comments or requirements Due Date/When

Upload in-progress component to the Blackboard site Submit Completed journal

Word limit: 300 words

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

LWB333 THEORIES OF LAW: INTERNAL WORKSHOP PROGRAM 2012

5 March 2012 Session 1: Introducing legal theory

Whole group work

Session 2: Bentham and Austin Workshop 5 6 2 April 2012 Session 1:Hart

Whole group work

Session 2: Sociological legal theories, American Legal Realism

Whole group work

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Syndicate groups Whole group work Workshop 8

30 April 2012 Critical Legal Studies

Whole group work

Final lecture Exam groupings provided

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

LWB333 THEORIES OF LAW: EXTERNAL WORKSHOP PROGRAM 2012

Introductory lecture Workshop 1

Recorded internal workshop Online discussion board

Recorded internal workshop Online discussion board

Session 2: Sociological legal theories, American Legal Realism

QUT Faculty of Law 2012

Study Guide Semester 1, 2012

Recorded internal workshop Online discussion board Workshop 8

30 April 2012 Critical Legal Studies