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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
©QUT Faculty of Law 2012 3
Table of Contents
DIARY CRITICAL DATES .............................................................................................................. 4
1 RATIONALE .......................................................................................................................... 5
2 AIMS ....................................................................................................................................... 6
3 OBJECTIVES .......................................................................................................................... 6
4 CONTENT .............................................................................................................................. 7
5 Teaching and learning approaches ........................................................................................... 9
6 Assessment ............................................................................................................................ 10
7 RESOURCE MATERIALS................................................................................................... 21
8 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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 4
DIARY CRITICAL DATES
Task Date
Leadership
Reflective journal in progress
upload
Friday 23 March 2012
Reflective journal completion
Thursday 26 April 2012
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 5
PART A: Unit Material
Unit Code: LWB333
Unit Title: Theories of Law
Credit Points: 12
Semester of Offer: Semester One
Prerequisite: Nil
Corequisite: Nil
Coordinator: Nicolas Suzor
Phone: 0402 427 723
Email: n.suzor@qut.edu.au (email preferred)
Office: C707
Consultation: Available on blackboard during semester
1 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 Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 6
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.
2 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.
3 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 Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 7
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.
4 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 Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 8
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 Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 9
5 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 Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 10
6 Assessment
Assessment Weight Due Date
Workshop / forum
participation
30% Weeks 2-12
Reflective journal 10% 300 word in-progress
component due Week 4.
1000 word final journal due
Week 8.
Final take-home exam 60% End of semester
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: Workshop participation
Relates to learning outcomes: 1-6
Weight: 30%
Internal or external: Internal
Group or Individual: Individual
Due date: 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 11
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: Workshop participation
Relates to learning outcomes: 1-6
Weight: 30%
Internal or external: External
Group or Individual: Individual
Due date: 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 12
6.5 Reflective journal: 10% (internal and external students)
Assessment Item No. 3 Assessment name: Reflective journal
Relates to learning outcomes: 1-6
Weight: 10%
Internal or external: Internal and external
Group or Individual: Individual
Due date: Week 4 (in-progress component)
Week 8 (final journal)
Submission: 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 13
Timeline and submission requirements
Activity
Comments or requirements
Due Date/When
Upload in-progress
component to the
Blackboard site
Word limit: 300 words
Week 4
Submit Completed
journal
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: Take-home Exam
Relates to learning outcomes: 1-5
Weight: 60%
Internal or external: Internal and External
Group or Individual: Individual
Due date: Central Exam Period
Submission: 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 14
LWB333 THEORIES OF LAW: INTERNAL WORKSHOP
PROGRAM 2012
Week
Workshop Dates
(week beginning)
Workshop
Format
1
27 February 2012
Introductory lecture
Note: no workshop this week, only the Monday
lecture.
Lecture only, no
workshop
2
5 March 2012 Workshop 1
Session 1: Introducing legal theory
Whole group
work
Session 2: Reading and writing
3
12 March 2012
Workshop 2
Session 1: Classical natural law
Whole group
work
Session 2: Social contract theories of natural law
4
19 March 2012
Upload RJ in progress
Friday
23 March 2012
Workshop 3
Contemporary natural law
Syndicate groups
Whole group
work
5
26 March 2012
Workshop 4
Session 1: Modernism, liberalism and law as science
Whole group
work
Session 2: Bentham and Austin
Syndicate groups
6
2 April 2012
Workshop 5
Session 1:Hart
Syndicate groups
Session 2: Kelsen
Whole group
work
Mid-semester break
7
16 April 2012
Workshop 6
Session 1: Marx, Weber and Durkheim
Syndicate groups
Session 2: Sociological legal theories, American
Legal Realism
Whole group
work
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 15
8
23 April 2012
Submit completed
reflective journal
Thursday 26 April
2012
Workshop 7
Dworkin
Syndicate groups
Whole group
work
9
30 April 2012
Workshop 8
Critical Legal Studies
Syndicate groups
Whole group
work
Public holiday Monday 7 May, no workshop this week
12
21 May 2012
Workshop 9
Feminist Legal Theories
Syndicate groups
Whole group
work
11
14 May 2012
Workshop 10
Postmodern legal theory, Critical Race, Postcolonial
Legal Theory
Syndicate groups
Whole group
work
13
28 May 2012
Final lecture
Exam groupings provided
Lecture
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 16
LWB333 THEORIES OF LAW: EXTERNAL WORKSHOP
PROGRAM 2012
Week
Workshop Dates
(week starting)
Workshop
Format
1
27 February 2012
Introductory lecture
Lecture
(recorded)
2
7 March 2012 Workshop 1
Session 1: Introducing legal theory
Recorded internal
workshop
Online discussion
board
Session 2: Reading and writing
3
12 March 2012
Workshop 2
Session 1: Classical natural law
Recorded internal
workshop
Online discussion
board
Session 2: Social contract theories of natural law
4
19 March 2012
Upload RJ in progress
Friday
23 March 2012
Workshop 3
Contemporary natural law
Recorded internal
workshop
Online discussion
board
5
26 March 2012
Workshop 4
Session 1: Modernism, liberalism and law as science
Recorded internal
workshop
Online discussion
board
Session 2: Bentham and Austin
6
2 April 2012
Workshop 5
Session 1:Hart
Recorded internal
workshop
Online discussion
board
Session 2: Kelsen
Mid-semester break
7
16 April 2012
Workshop 6
Session 1: Marx, Weber and Durkheim
Recorded internal
workshop
Online discussion
board
Session 2: Sociological legal theories, American
Legal Realism
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 17
8
23 April 2012
Submit completed
reflective journal
Thursday 26 April
2012
Workshop 7
Dworkin
Recorded internal
workshop
Online discussion
board
9
30 April 2012
Workshop 8
Critical Legal Studies
Recorded internal
workshop
Online discussion
board
Public holiday Monday 7 May, no workshop this week
12
21 May 2012
Workshop 9
Feminist Legal Theories
Recorded internal
workshop
Online discussion
board
11
14 May 2012
Workshop 10
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)
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 18
GENERIC CRITERIA – OUTLINES AND EXAM
Criterion Explanation
Where you can
find yourself in
trouble
7 6 5 4 3 2 or 1
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 should not
change the
question to suit
you, or answer a
different
question.
You engage with
the subtleties and
complexities in
the question at a
very high level
You engage with
many of the
subtleties and
complexities in
the question at a
high level
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 a base
level awareness
of the question,
and do not pick
up anything
more than a
surface level
approach to the
question
You cannot
grasp the focus
of the question.
You show no
recognition or
acknowledgement
of the question, or
you may disregard
the question
Understanding
the theoretical
material used
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.
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
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
You have some
knowledge of the
theory, but only
have a bare
understanding of
the theory
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 don‟t
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 19
Criterion Explanation
Where you can
find yourself in
trouble
7 6 5 4 3 2 or 1
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.
You simply
rehash or repeat
the theories.
You waste words
repeating
theories at the
expense of
developing your
answer
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 balance
these elements at
a very high level,
but lose
argument in
favour of
description, or
vice versa
You tend to focus
on description
with some
limited
argumentation
You simply
describe the
theories and do
not link this
description to
the argument or
developing your
answer
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
You simply
repeat poorly
understood
knowledge about
the theory and/or
provide
unsubstantiated
personal views
about the
question
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 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.
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 20
Criterion Explanation
Where you can
find yourself in
trouble
7 6 5 4 3 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.
You will use
personal
opinion,
viewpoints, or
polemic without
recourse to
reasoned
argument
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 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 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
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 don‟t
understand what
you are doing
You show new
insights about a
theory, or into a
legal scenario
based on that
theory, or new
ideas
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 come
up with any
original ideas or
arguments but
your answer is
linked to the
question
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 21
7 RESOURCE MATERIALS
7.1 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 Lloyd’s 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
8 Risk management
Risk Assessment Statement
There are no out of the ordinary risks associated with this unit
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 22
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 student‟s
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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 24
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 SYNDICATE SESSION
Diary
Leader
Week 4 Workshop 3: Contemporary Natural
Law
Session 2: Finnis
Week 5
Workshop 4:
Session 2: Bentham and Austin
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 25
LWB333 Theories of Law
Semester One 2010
External Discussion Board Management Form
Week DISCUSSION FORUM
Leader
Week 4 Workshop 3: Contemporary Natural
Law
Session 2: Finnis
Week 5
Workshop 4:
Session 2: Bentham and Austin
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 27
Workshop 1
Introducing legal theory
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 28
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: INTRODUCING YOU TO LEGAL THEORY (20
questions)
READING
Prescribed Reading: *LTIP Chapters 1 and 2 OR LT&CP Chapters 1 and 2
*Davies Asking the Law Question (2nd
ed) Chapter 1
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 29
Further Reading: Freeman Lloyd’s Introduction to Jurisprudence (7th or
8th
ed)
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 30
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 non-
conventional 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 people‟s 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 you‟re 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 31
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 haven‟t
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. Don’t worry if you can’t
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 Yablon‟s 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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 32
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 – it‟s 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 we‟ve 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 year‟s 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 33
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 34
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
2. You would rather:
(a) know a little about a great many areas
(b) become an expert on just one area
3. 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
4. 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
1. 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
2. You are best at remembering:
(a) general principles
(b) specific facts
3. 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
4. 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
5. When learning something, you would rather:
(a) follow general guidelines
(b) work with a detailed plan of action
6. 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) _______
Results – again, this is not a question of right or wrong
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 35
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 don‟t 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.
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 36
Workshop 2
Module One
Natural Law Theories
SESSION 1: CLASSICAL NATURAL LAW
SESSION 2: SOCIAL CONTRACT NATURAL LAW
THEORIES
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 37
WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 38
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 LAW THEORIES BEEN
INFLUENTIAL?
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 you‟ve 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
Theories of Law Study Guide – Semester 1, 2012
©QUT Faculty of Law 2012 39
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 law‟s
universality and immutability, and its discovery through reason.
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RELIGIOUS AND THEOLOGICAL NATURAL LAW: ST
THOMAS AQUINAS
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.
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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.
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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 Antigone‟s 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 spouse‟s 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.
1 (1908) 6 CLR 406, 414.
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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.
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Workshop 3
Module One
Natural Law Theories
Contemporary natural law theories
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
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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 Blackstone‟s
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.
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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. Hart‟s 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 won‟t 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
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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 friend‟s 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.
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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.
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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 Fuller‟s principles are really principles of
efficient legal ordering, rather than moral principles. Would it be possible
for an evil government to comply with Fuller‟s inner morality of law?
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Session 2
Natural Law Theories and human rights
Read the following speech: Julian Burnside QC, “It‟s 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 Dicey‟s 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 blue-
eyed 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.
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Workshop 4
Module Two
Modern Legal Thought:
Historical and conventional
approaches
SESSION 1:
MODERNISM, LIBERALISM, LAW AS
SCIENCE
SESSION 2:
BENTHAM AND AUSTIN
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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: Davies Chapter 2
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)
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
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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.
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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 Lloyd’s (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.
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Liberal Thought
Read:
Leiboff & Thomas LTC&P Ch 7 pp 221-238 OR LTIP Chapter 5 pp 109-
122
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
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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
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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
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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 - (Bentham‟s “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 don‟t 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 THE MAIN CHARACTERISTICS OF CLASSICAL
POSITIVISM?
Positivism concentrates on the law as it is and where it came from in a formal way: in
a sense, you can adapt Gertrude Stein‟s “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
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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.
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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 Bentham‟s 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
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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 Bentham‟s ideas, and until
the publication of Bentham‟s 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 Bentham‟s 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
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pattern established by Bentham, and dealt with law on the foundation of sovereignty,
command and sanction.
Austin‟s 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 Austin‟s
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.
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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?
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Workshop 5
Module Two
Modern Legal Thought:
Historical and conventional
approaches
SESSION 1: HART
SESSION 2: KELSEN
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
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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 Dworkin‟s 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 Austin‟s work. You will see that there is no room for command
or sovereignty in Hart‟s theory, as was found in Austin‟s 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 Hart‟s 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 England‟s),
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.
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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 Hart‟s 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 Hart‟s theory has been pointed out by a number of
theorists.
Hart‟s 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 Dworkin‟s 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
Kelsen‟s 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
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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
Kelsen‟s 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
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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.
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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?
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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
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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 Marx‟s 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, 222-
225
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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).
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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, Marx‟s 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.
MARX‟S 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 people‟s lives. In the context of the time in which he wrote, he
observed that individuals couldn‟t 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,
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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 Marx‟s 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,
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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 Pound‟s sociological jurisprudence
POUND‟S 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.
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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. Pound‟s 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
Pound‟s 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 Pound‟s 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
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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.
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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 decision-
making. 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
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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 law‟s reality is actually based on nothing more
than concepts or categories we impose on the world. For instance, torts or
corporations don‟t 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.
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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 Pound‟s 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?
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Workshop 7
Module Four
Modern Legal Thought:
Contemporary Rights Theory
DWORKIN
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
A basic understanding of Dworkin‟s 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: Wacks pp 249-252
Further Reading: 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: Leiboff & Thomas LTC&P pp 238-242 OR LTIP pp 122-
124
Lloyd pp 540-548, 593-614 (7th
ed); 603-612, 659-680 (8th
ed)
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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. Dworkin‟s 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 Dworkin‟s 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
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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 counter-
utilitarian. 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
Dworkin‟s 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.
DWORKIN‟S JUDGES
Read: Leiboff & Thomas LTC&P pp 242-250 OR LTIP pp 125-128, 132-
133
Cotterrell, pp 172-181
Lloyd, pp 1441-1444 (7th
ed); 747-750 (8th
ed)
There are two tramlines of thought about the judge in Dworkin‟s 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,
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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 Dworkin‟s
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 Dworkin‟s 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.
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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 Dworkin‟s 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 Dworkin‟s
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.
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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 Carr‟s statements with respect to Ronald Dworkin‟s theory
of rights.
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Workshop 8
Module Five
Modern Legal Thought:
Contemporary Critique
SESSION 1:
CRITICAL LEGAL STUDIES
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
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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 law‟s 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 can‟t 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
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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 pp1104-
1108
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
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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 Carr‟s 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 Carr‟s op-ed through Dworkin‟s
theory. Now, critique Dworkin‟s approach from the viewpoint of CLS.
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Workshop 9
Module Five
Modern Legal Thought:
Contemporary Critique
SESSION 1:
FEMINIST LEGAL THEORIES,
CRITICAL RACE THEORY,
POSTCOLONIAL LEGAL THEORY
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
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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
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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?
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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".
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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 women‟s 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.)
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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 criticism‟s 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 postmodernism‟s 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
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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 Dewey‟s 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
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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 anti-
essentialist 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).
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"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 no-
power. 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 Martha Minow, "Interpreting Rights: An Essay for Robert Cover" 96 Yale LJ 1860 (1987) at 1910.
4 Patricia Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights" 22 Harv CR-
COMMON Law Rev 401 (1987) at 431.
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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.
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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.
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Workshop 10
Module Five
Modern Legal Thought:
Contemporary Critique
POSTMODERNISM
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WHAT DO I HAVE TO DO FOR THIS WORKSHOP?
WORKSHOP OBJECTIVES
After completing this workshop, you will have acquired:
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
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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 modernism‟s claim to set meanings of language, such as
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Hart‟s 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 mind‟s 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):
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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.
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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 Foucault‟s 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.
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PART E
PAST REFLECTIVE JOURNAL FEEDBACK
Past Exam Grouping
Past Exam Questions
Past Exam Feedback
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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 author‟s
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
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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
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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 Bentham‟s 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.
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A summary of the modules and the topics (in brief form only) is set out as
follows.
Module 1 Module 2 Module
3
Module 4 Module 5
1 Relevant
historical
natural law
theories
Relevant
aspects of
Bentham‟s
theories
Postmodernism
2 Kelsen
Dworkin
Marx plus at least
one subsequent
extrapolation of
Marxist thought
3 Finnis American Legal
Realism
Post–colonial
legal theory
4 HLA Hart as
positivist
CLS Postmodernism
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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 P‟s 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.
46 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.
47 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
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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 Bentham‟s 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 non-
proliferation 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.
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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 Honour’s 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 Honoré
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
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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
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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
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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 Kelsen‟s 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.
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These answers also failed, and represent the “lowest” mark in a number of
questions in the table below.
Question Number
sitting
Highest
/65
Lowest /65 Mean /65
1 160 60 4 36.9
2 65 62 29 37.4
3 75 62.5 12.5 46.8
4 68 62.5 0 44.9
TOTAL 368 62.5 0 40.3
The distribution of grades for the unit for all aspects of assessment was:
Grade Percentage
7 8.4%
6 20.4%
5 26.4%
4 41.3%
3 1.4%
2/1 2.2%
Mark Thomas
Unit co-ordinator Theories of Law
9 July 2003
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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 Locke‟s thoughts about the
role of law in a civilised community.
Bentham
Again, some less successful papers tried to incorporate too many aspects of
Bentham‟s 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 Bentham‟s 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
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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, that‟s 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 law‟s
application to facts can work). Otherwise you have to show why it does not work,
pointing out where a particular theory falls down or doesn‟t “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 Kelsen‟s theory of
norms with reasonable understanding of the Grundnorm (although a few confused the
Grundnorm with the country‟s 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 Kelsen‟s 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 Kelsen‟s attempt to extend his theory into the
international arena and evaluated it in terms of the given situation. One or two good
papers critiqued Kelsen‟s 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 Dworkin‟s
theories may not work well beyond the liberal democratic system. Too many answers
tried to fit bits of every aspect of Dworkin‟s 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
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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 Dworkin‟s 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 Dworkin‟s 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 law‟s effectiveness.
The best of the extrapolations that were used were discussions of hegemony, also the
Frankfurt School and the dominant group‟s use of media, communications technology
etc. Some papers picked out useful elements of Hunt‟s 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
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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 didn‟t 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. Well-
considered 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 non-
indigenous 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 Finnis’s 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 –
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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 Frank‟s
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.
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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 Hart‟s 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 Hart‟s
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.
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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 Derrida‟s views on justice. Very few answers attempted to
explain Derrida‟s 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.
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 School‟s undergraduate program, eg for the citation of
cases, articles, books and legislation.
http://www.law.qut.edu.au/files/Legal_Reference_Style_Guide.pdf
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