Law and Society – Semester 1 2011
Topic 1 – Critical Thinking
Criteria for Judgement;
· Reasonableness - Challenging an arguments assumptions and validity of reasoning. Is there reliable evidence? Are the conclusions logical?
· Objectivity – The bias in making a claim. Does the person making the claim have a vested interest in that claim being accepted?
· Consistency with ideological standards or ideals – Is a phenomenon consistent with a particular ideological standard. For example, a girl moving in with her boyfriend in terms of its consistency with Christian ideals. In what way is a phenomenon consistent/inconsistent with the aforementioned standards?
· Consistency with theoretical standards – (An extension of the previous criteria) – Involving the comparison/contrast of one set of ideals beliefs to that of another set. Is the theory of evolution consistent with theories regarding Darwinism? Would a Christian priest agree with this claim?
· Fairness and Equity – Is a decision fair? Is it just? Is everyone treated equitably?
Three main categories of criteria for judgement by a critical thinker in law;
· Consistency with legal authority
· Consistency with theoretical, ideological and ethical standards; and
· Equity of outcome
Consistency with Legal Authority
Is a judgement “correct” in terms of its consistency with statutory or case law authority? Is an argument based on correct understanding and application of legal authority?
Consistency with Theoretical, Ideological and Ethical Standards
It is the critique of legal claims, arguments, rules, decisions, doctrines etc… based upon frameworks, such as;
· Legal/political standards like rule of law, or doctrine of separation of powers
· Jurisprudential frameworks such as positivism or natural law theory
· Feminism or Marxism, etc.
· Liberal standards, liberty, justice, rights and utility
· Frameworks of other disciplines such as sociology or economics
· Ethical models and professional codes
All these involve a contextualised understanding of the law. Challenging assumptions about what the law is.
Consistency with Equity of Outcome
Considers the political and social consequences of legal decisions and that the law can be used to oppress and be a source of injustice.
Critical Thinking in terms of Legal Arguments
Remember to! Penetrate the surface of the argument, uncover its hidden structure, unstated assumptions, vested interests involved, faulty premises and generalisations.
– Critical Skills
The six critical skills;
1. Interpretation – Understanding the surface meaning of a claim or statement. How it is intended to be understood.
2. Analysis – Understanding the hidden elements and structures of a claim or statement and how these contribute to the overall meaning of it. Identify the reasons presented for a stance, any bias, and any assumptions made.
3. Evaluation – Judging and object of critique based on an explicit criteria, for example in terms of its truthfulness, legal precedent, or consistency with social norms.
Look at the reasons for and against the claim being made, both within the claim and externally.
4. Inference – Identifying a reasonable and justifiable conclusion about the object of critique based on facts, evidence and the result of our own interpretation, analysis and evaluation. Identify the consequences of the conclusion.
5. Explanation – Being able to effectively communicate my conclusion.
6. Self-Regulation – Critically think about our own thinking. Has bias/assumptions affected our judgement?
Legal Arguments
A sound argument is where it is impossible to accept the premises and not the conclusion.
A valid argument is a sound argument where all the premises are true.
Two Important Legal Rules!
According to the literal rule, we should always begin by reading a legal text literally, with words and phrases given their ordinary and natural meanings. (Fisher v Bell)
One exception to the literal rule is the class rule. According to the class rule, where two or more specific words are followed by a general word, the general word is limited to the class created by the specific words. (DPP v Farrell)
Faulty Thinking
- Attacking the person (argumentum ad hominem): Judging/criticising the person making the claim rather than the claim itself. àIslam is wrong; it is advocated by terrorists!
- Appeal to authority (argumentum ad verecundium): Seeking to establish the truth of a claim by pointing to the authority of the person making the claim. à Eating meat is unethical, my law lecturer says so.
- Appeal to majority (argumentum ad populum): Seeking to establish the truth of a claim by pointing to the number of people who believe it. à Global warming is no longer a threat; most people now believe that the climate is cooling.
- Affirming the consequent: If P then Q. Q. Therefore P. This is only acceptable if and only if P then Q. X could only commence legal proceedings if she qualified for legal aid. She hasn’t commenced legal proceedings, so she must not have qualified for legal aid.
- Straw man argument: Judging/criticising a distorted version of your opponent’s claim.
à The people protesting President Obama’s visit to Australia are just another bunch of US-haters. - Correlation and causation (cum hoc ergo propter hoc): Insisting that a correlation between two variables means that one has caused the other. à There have been a decreased number of pirates world-wide in the past century. Global temperatures have risen in the past century. Therefore, a decrease in pirates has led to an increase in temperature.
Topic 4 – Legal Education
Legal education in universities from the 12 century, doctrinal approach. Those who studied law not likely to become lawyers.
In Australia, vocational, on the job training until late 19th century.
In order to improve credibility of legal professionals government intervened, leading to the controversial decision to make it necessary for university education to become a lawyer.
↓
Vocational focus, teachers mainly themselves lawyers who gave lectures in evenings, students did clerkships at the same time.
Post WWII pressure from government to a more academic focus of legal education, perceived inadequacy of the profession compared to other countries.
- Teaching of law in distinct areas, such as contracts, torts, and identifying the underlying doctrines, thus doctrinal approach. (Context of law not important, so political and social factors not considered at university).
- Doctrinal approach also emphasised the difference between law and any other discipline, thus strengthening its position in the university.
The Pearce Report 1987 and Onwards
Law schools flawed, dreary programs, terrible teachers.
Need for more emphasis on vocational approach, not simply doctrinal as had been the case.
Also part of the rise of corporatism in legal education, with focus on graduate outcomes and desires of employers. University degree seen as a product, with students being the consumers.
Increased pressure to be profitable due to decreased government funding has led to focus on marketability and expense of courses. Trend towards closer ties between the profession and universities once again, with teaching staff practitioners and sponsorship.
Differing views if current trend is good or bad. See p 76-77.
Four Different Approaches to Teaching Law
Doctrinal Approach - p78
- Positivist, legal system works independently of other considerations.
- Focus on the doctrines underlying the law. What the law is.
- Traditional method of teaching and dominant one in Australia.
- Various reasons for its dominance, p 80.
Vocational Approach – p80
- Teaches students how to be lawyers, more so than what the law is.
- Key focus of law schools today along with Doctrinal approach, trend since the 1980’s.
- Emphasises critical thinking within the scope of employment. Thinking about an opponent’s arguments, etc. Not regarding the law itself.
Liberal Approach – p82
- Emphasis on broad education, considering law within its societal context.
- Focus on freedom for both students and teachers in education.
- Development of independent skills with the view that education should be ongoing throughout life.
- Critical thinking regarding the law against values such as liberal standards of rationality, fairness and equality.
- Growing importance, but still marginalised compared to doctrinal and vocational approaches.
Radical Approach – p85
- Challenges what the law is, sees the law as a tool of injustice that must be reformed.
- Considers the underlying biases and inequalities of the law.
- Many different ideologies can underlie a radical approach, so many different criteria for judgement of the law.
- Huge emphasis on critical thinking about the law.
- Very marginalised in Australia, due to variety of factors.
Topic 5 – Jurisprudence
“What is law?” and “What makes a law a valid law?”
Natural Law Theory
- Emphasises the relationship between the law and external values.
- Universally and objectively good things and bad things. The law should reflect this.
Murder is not wrong because we think it is wrong, it simply is wrong.
- Can be used as a standard against which positive law can be judged. Authority of law is derived from its compliance with objective and universal values of right and wrong.
- Common traditional view, Lex injusta non est lex “An unjust law is not law.” Cicero
- Therefore, positive law that incompatible with natural law not a law.
Thomas Aquinas | 1225-1274
All human laws can be judged in terms of their conformity with natural law. Any human law that is inconsistent with natural law is not really law at all.
A well-made human law is derived from the law of God, and commands obedience accordingly.
Natural Law theory based on Christian values, limits lawmakers ability to make law, but gives law that is compatible with this greater authority.
Hobbes
Natural law is a set of rules that all humans strive to live by, the only way this can be achieved is by giving power to the sovereign, who’s decisions need not be grounded in morality. This leads to legal positivism.
John Locke | 1632-1704
If the sovereign goes against natural law and fails to protect ‘life, liberty and property’, the people are justified in overthrowing the existing state and creating a new one.
John Finnis | 1940-
Law is a set of rules that are ideally derived from and evaluated against a set of universal moral standards.
Finnis identifies seven intrinsically valuable basic goods: life, knowledge, play, aesthetic experience or beauty, sociability or friendship, practical reasonableness, and religion.
By applying practical reasoning to these basic goods, we can derive a set of general moral standards. (Things that promote them are “good”, things that act contrarily to them are “bad” in a natural law sense).
An unjust law (a law inconsistent with the natural law) is legally binding, but is not fully law, and an individual may be justified in choosing not to obey such a law. However, circumstances may demand that an unjust law be obeyed because to disobey it would weaken the legal system as a whole.
Critique of Natural Law Theory
Are there universal standards of morality and justice?
Who decides what they are?
Legal positivism
The appropriate subject of Jurisprudence, in any of its different departments, is positive law: Meaning by positive law (or law emphatically so called), law established or "positum", in an independent political community, by the express or tacit authority of its sovereign of supreme government.
- John Locke
Legal positivists insist that we should focus not upon what the law ought to be, but upon what the law is. Rules, doctrines, statutes, etc.
Law is created by human beings; it is part of society and does not transcend it (‘the social thesis’). (Not universal as in Natural Law Theory)
There is no necessary connection between law and morality (‘the separation thesis’).
Jeremy Bentham | 1748-1832
There is a distinction between;
• expositors, who explain what the law in practice is, and
• censors, who criticise the law in practice and compare it to their notions of what the law should be.
The purpose of the philosophy of law is to explain the real laws of the expositors not the criticisms of the censors. What it is, not what it “ought” to be.
John Austin | 1790-1859
Command theory: Law is a set of commands from a sovereign that are backed by a threat of sanction.
A sovereign is someone who is habitually obeyed and who does not themselves obey a superior.
“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.”
(What the law is and whether it is right/just are two different and distinct things à Opposite to Natural Law Theory).
Hans Kelsen | 1881-1973
Law is a scientifically rational system of coercive norms that form a hierarchy.
A norm is a statement about the way a person should behave.
Each norm is validated by a superior norm.
The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. But what is the Grundnorm à Basis of laws, a hypothetical thing.
Eg, parking regulations à parking legislation (statute) à Australian constitution à British Parliament à Grundnorm
HLA Hart | 1907-1992
To classify all laws as ‘coercive orders’ or as ‘moral commands’ is to oversimplify the relation between law, coercion, and morality.
Law is a system of primary and secondary legal rules which derive their legitimacy from an ultimate rule of recognition.
• A primary rule is a rule of conduct; it tells us what we can or can’t do and the consequences of disobedience. Eg, a contract.
• A secondary rule regulates the creation, extinction, and alteration of primary rules. Eg, how a contract can be formed.
• The rule of recognition determines the ultimate validity of a primary or secondary rule; it derives its own validity from being accepted and adhered to by legal officials.
Eg, parliament, judges determine what the law is.
Law should have a minimum moral content to encourage adherence (but not necessarily).
(The more consistency the law has with society’s ideals the more likely society will accept and adhere to it).
Critique of Legal Positivism
Is it appropriate to consider law in isolation from the rest of the world? à It functions within society.