Intro

First, an overview. Overviews are important.

Rhys Jaconley

There has been a lot of resistance to this subject in this school. Most people dont know what it is about or what its purpose is, which is sad. Legal theory speaks to the core of what law is. It is the method we have of understanding what the law is, how the law functions and why we should have law. As we are all currently studying The Law, I believe that these are important questions for each of us to think about. The analogy I have used at parties is this: the law is like a gun. Most people studying law just want to know how to use the gun to make money. Legal theory teaches us about how guns work, how they affect people and whether or not the gun should exist at all. If you disagree with any of the above, stop reading now. The following information will not be of use to you because it incorporates the premise that it is important that law achieves justice into its underlying premise, and the resulting reasoning (i.e. me giving you guys a how-to on acing exams) will make no sense. Youre probably better off ploughing away on your own and trying to make sense of it based on your own beliefs. If you do agree, you will find that Legal Theory will open up your world to possibilities that you hadnt considered before. Some of these possibilities include but are not limited to: that rights do/not exist in and of themselves, that the rule of law is fundamentally different from the law itself and lastly (and imo most importantly) that a law can be judged for its legality without reference to judgments, past reasoning, juristic principle or EVEN a constitution. Exciting stuff. As many of you may know, Ive been thinking very hard, very quickly about a great many things in the last few days. Those of you following me on facebook or my blog (http://eudemoniatic.blogspot.com) know that I have distinct political and philosophical beliefs. These will inevitably inform my take on a subject like this. As always, dont accept information as gospel, do your research, and come to your own conclusions.

For those of you still reading, click Jurisprudence

Jurisprudence

Rhys Jaconley

Ok so the intro was just really an intro to an intro. LOL. Dont worry, Ill tell you how to get good marks on the exam. This is all-important. Approaching Legal Theory/Jurisprudence How one approaches Jurisprudence affects how much sense it makes what you get out of it whether you view it as practical or purely theoretical whether or not you actually end up engaging properly with the materials That last point is important. What we are assessed on is our level of Critical Engagement with the theories presented to us. This means that if we want to understand legal theory (and get the resulting kickass mark) we need to approach it properly. How not to approach it Legal theory cannot be approached the way that other law subjects are typically approached. The typical approach is usually to learn the principles in the cases by rote learn the cases main points of contention by rote learn the significant factual considerations by rote try and get a feel for how all this disparate information hangs together.

The reason we usually study this way is that we are chasing high marks. We think that an exam is a test of knowledge, so we do our best to get and retain all the knowledge so that we may show how much we know come exam time. This is the way most people study. There is a reason for this, but that isnt relevant to legal theory and Im wary of staying on topic. The problem with this style of study is that it often fails to convey understanding. These are 2 different approaches to education: knowledge and understanding. Both have their strong points but trust me when I say that Law is generally easier if you try and gain an understanding, rather than

knowledge of it. If youd like to understand the difference more fully, do your own research. A good place to start (http://www.kmworld.com/Articles/Column/DavidWeinberger/Knowledge-and-understanding--53115.aspx)

If youre still with me, then were ready foooooooor: The Right way to approach legal theory As weve established, trying to memorise all the different facts and theories isnt a very productive way of engaging with legal theory. This is because many of the theories that we discuss are just that: theories. They do not necessarily claim to be true, in the sense that it is true that if there is offer/acceptance and consideration, you have a contract. Theories are inherently subjective as they offer as a way of explaining things. If a theory asserts that it is true, it becomes doctrine. Legal theory is interested inyou guessed ittheories. In terms of what this means for you as a legal theory student, the implications are actually quite liberating. You can choose to accept, or reject, legal theories. This is very important. Normally we are told we need to know something well to pass an exam. This isnt the case in legal theory. What you need to know is which theory is more compelling at explaining what it is trying to explain. The way we go about this is critical analysis. Critical analysis has a bad rep at the moment; its often lumped with the weed smoking arts students and wanker intellectuals that have nothing meaningful to say. But it IS meaningful. It allows us to critique an assertion (be of it legal, theoretical and sometimes even factual in nature) and get closer to a concept of the truth. It is a tool, one that we as lawyers need to hone if we want to excel in our chosen careers. When employing critical analysis, there are a few rules. 1. Assess the assertion for its strengths and weaknesses 2. Compare to any competing assertions that say something different about the same topic area

3. See where the strong/weak points are between the two (or more) theories 4. Make an honest assessment as to what you think the situation really is At the end of the day, you have to believe what you are arguing for. This is the beauty and the trap of legal theory. You can say whatever you want and there is no right answer. But whatever you say must be backed up with reason, analysis and a demonstration that you have understood what the theorists are trying to say. Which brings us to the theories. Please note: the following summaries are MY readings of the theorists. They are NOT gospel. If you have a different idea of what the theorist is actually trying to say, youre probably better off working using your own premises, and spreading that insight amongst your fellow students.

Positivism

Rhys Jaconley

Heres the thing about positivism: its a mostly descriptive account of the law. There is much confusion as to what positivism actually means or conveys. Again, many people tend to try and engage with these theories with an exam winning mindset. You MIGHT win exams, but youll miss the whole point of the theory. Bad law student, bad. So here goes my 2c Positivism is like an anthropological account of what the law is. It is descriptive, but doesnt offer much explanation. Positivists identify the law by reference to internal criteria, such as is it a rule? do people obey it? what is the relationship between conformity and the law in question?

Is there an identifiable sovereign? Where do we locate authority for the law (if not in its content)? Positivists assert that the law is a social fact i.e. devoid of moral content. THIS DOES NOT MEAN that positivists have no place for morals in their conceptualisation of law & society. What it DOES mean is that positivists view law as a set of rules that can be measured objectively (by reference to peoples conduct in relation to these rules). The have little or nothing to say about whether a law is right or just. H.L.A. Hart While we started our studies with Hart, he is really coming off the back of a bandwagon that had been developing for hundreds of years (same goes for Fuller). The development of positivist legal theory had gotten stuck in trying to answer the question: why do people obey the law (given that this theory rejects a moral evaluation of the law). Previous theorists had attempted to explain obeying the law in terms of its consequences i.e. if you fuck with the law, the law fucks with you. However, this wasnt really satisfying in explaining compliance, as there are MANY situations in society where it is clear that there will be no legal repercussions from breaking the law, yet people still comply. How do we explain this?

Harts answer was to frame law as a socially enforced practice. This makes a lot of sense. When we break the law, we may immediately look to see if there was a policeman or speed camera recording the incident. But we also look to see if anyone else saw. We are socialised to accept compliance with the law, and this practice is upheld by other members in society. From our parents to our teachers to our fellow citizens, recognising and complying with the law is drilled into us; it is a social fact. The way this compliance comes about is a union of primary and secondary rules. The primary rule that determines compliance is the seriousness of the social pressure. While I might run a red light and get a $300 fine (harsh penalty), defecating in the middle of my contract law class is inconsiderable due to the seriousness of the social pressure prohibiting this act. Secondary rules also influence whether or not a law is complied with (whether they are truly considered law); Hart identifies two but doesnt declare this list as necessarily comprehensive. The first is that the rule (law) in question is necessary for some desirable end of the society; speed limits to reduce accidents. The second is that there is usually a mediation between the desires of the individual and the desires of the collective, otherwise there would be no need for the law in the first place. A law enforcing everyone to work would be absurd, as it is already in everyones interests to do so. It should be noted that Hart is on thin ice with his first secondary rule (whew!). It implies that there is a value in the law itself, using this value to justify and explain compliance. But Hart attempts to reject values within law; his is a purely objective study of the law. By using the idea of the phrased necessary to social life or highly prized feature of it flirts with naturalism. But Hart wont go all the wayhe coquettishly admits that the law is devoid of values, then bats his eyelashes at a apparently moral reason for following the law (aims of society). Hart is a pricktease. This is a weakness in his theory, and deserves exploration by those that feel like having their way with the positivist doctrine.

With compliance (the internal component of law) explained, Hart moves on to what is considered law (i.e. external). He coined the term rule of recognition to describe the process by which any given society recognises a law as legitimate. In some societies, whatever the chieftain says will be law. In others, it was whatever the citizens reached consensus on (i.e. ancient Greece). In our society, it is whatever bill that is passed by both houses of parliament, or whatever ratio is issued from a superior common law court. The secondary rules, in their totality, make up the rule of recognition; a mix of procedural requirements as well as observed compliance that draw the lines between custom, law, and mere technicality. It is important to repeat that Hart makes no judgement whatsoever as to the legitimacy of a law outside of the rule of recognition. His is a purely descriptive account, and we can take from it what we may. Another important point on the rule of recognition is that it is an officials account of law. The rule of recognition may not be shared by the wider community. However, it will be recognised by the lawyers, the judges, the policeman, the parliamentarian and the bureaucrat, and that is what matters. It is these people that determine the form, content and execution of the law. Hart isnt committed to the view that law is a good thing in and of itself. He merely asserts that it is present throughout all structured societies. Part of the problem of the debate between Hart and Fuller is that they fail to agree on a basic point: that morality is important for keeping the law in check. Rather than search for these points in common, they shout each other down, insisting that the other is right in his conception of the law. But they arent necessarily mutually exclusive. One can use and apply a positivistic, Hartian conception of the law in identifying what the law is, whilst using a Fullerian moral account of what the law should be. But were getting ahead of ourselves again. Raz Apart from having a badass name, Raz is also a bit revolutionary as he is a positivist with something meaningful to say about the operation of the

law. Raz concerns himself with the rule of law; different from the law itself. Razs central argument lies in the fact that for a law to be effective, people must obey it. This is indisputable. A law that no-one or close to no-one follows is no law at all (arguably laws that criminalise the use of marijuana fall into this category; a less controversial example is that of jaywalking). If no-one obeys it, it is an ineffective law (or if one takes a strictly empirical approach, no law at all). Raz also has a few things say about procedure (not just compliance). The rules all relate to the effectiveness of the law, not whether the law is considered to be good or not. Prospective/Retroactive Laws should be prospective, i.e. forward looking. They should articulate what they are designed to achieve, once the law is passed. Retroactive law is ineffective law, as it (apart from moral ideas of justice) is ineffective in preventing the conduct it is designed to prohibit. Whilst retroactive law may serve to criminalise/jail a perceived offender, the law will better achieve its aims if it clearly illustrates how citizens should conduct themselves in the future Stable If laws are changed often, citizens will find compliance difficult as there will be uncertainty as to what the law is at any given point in time. More importantly, citizens wont be able to conduct themselves with any sense of legal certainty in making future plans, as the law could change at any time. This was one of the big sticking points of the recently passed carbon tax; businesses couldnt engage in contracts (and were stifled in their operations) as they had no idea whether their ventures would be profitable under the new system. Open, Clear and General rules when Making Law Here Raz asserts that while law may be limitless in its complexity in its pursuit of the secondary rule of the laws aims, it should be guided by underlying principles.

Example: while it may seem discriminatory, complex (and even unjust) that indigenous citizens get larger welfare payouts than non-indigenous citizens, this (complex and seemingly contradictory) rule is guided by the underlying principle of distributive justice based on need, where the asserted social fact is that indigenous needs arent met as easily by Australian society and therefore deserve extra monetary assistance. Whatever you think of the argument, the rule is guided by a general principle that can help the citizenry engage with and gain a conception of the law and its functions. *comment* Here Raz is playing the same game as Hart (see above), flirting with Natural Law theory. He is quick to state that the aims of the law may be whatever the society deems worthy, but relies on the existence of general principles (morals?) to guide their formation. He is right in asserting that this is necessary for good rule of law, but sounds quite Fullerian; this argument closely resembles Fullers thesis on good order. Independent Judiciary See legal theory/con law for why this is important. If you dont know by now I really cant help you. Principles of Natural Justice must be observed See the comment above; he argues for a fair/open hearing, absence of bias etc. *comment* it is arguable that this isnt necessary for rule of law i.e. the effectiveness of law. I would argue that it is easier to enforce compliance when rulings are arbitrary, closed and unfair. This creates an aura of fear regarding public practice, and citizens will be less willing to step out of line. Please dont plagiarise this idea come exam time Courts should have review powers No comment Courts should be easily accessible

This relates to what we studies in DR. Yes, we studied something in DR. Access to justice relates to the cost/wait time/accuracy of court decisions. An effective system should excel in these areas. The discretion of crime-preventing agencies should not be allowed to pervert the law See: http://www.youtube.com/watch?v=JrRZBVqioeU Raz admits that principles 4 to 8 are there to avoid the perversion of the law by those in authority. Raz clearly states that while most societies regard law to be necessary, law by virtue of its nature (Cover has some great insights here) can lead to horrible, horrible things. Dare I cry Nazi? Even the requirement that one mustnt walk backwards eating peanuts at a concert in California seems, to me, a step too far. So what is Raz on about? While a positivist in theory, he seems to be implying that the knife that is law, for it to be sharp, must also not be a cudgel. Or a gas chamber. He attempts to make no judgement on the moral reasons the knife is used, but insists that the rule of law keeps the knife honed and straight; while he states this serves efficiency and the development of the law, there IS moral value in using a knife over poison. He is saying that law, to fulfil its function effectively, must be ordered well. And this is a very fullerian argument. He tries to stay separate from morality by invoking the principle that law in this way merely respects the citizens autonomy (by being clear and effectiveif you choose to go on a killing spree the next time your team loses, the law respects your implicit choice to go straight to jail). However, the notion of respect for autonomy is an inherently moral argument. I didnt understand exactly what Raz was trying to do here; any insight would be more than welcome. Well thats it for me on Raz and Positivism. Raz articulates quite nicely how the law can be effective (and the importance of this) without a clearly necessary link to the morality of law (although imo he is less than successful in this enterprise).

Positivism gives us the tools to identify law and the effectiveness on it. If we want to know about whether a law is just, we need Natural Law theory (yay!). Im letting everyone know now that I have a bias in favour of this theory; to me the most important question that we can ask about law, as lawyers, is whether it is just.

Natural Law
Everyone wants to be a Jedi.

Rhys Jaconley

Natural law jurists are like Jedi: upholders of a higher moral order.

Natural law has its roots as far back as the ancient Greeks, but its critical moments in western history have been the French/American revolutions. In both these instances, a political society rejected the arbitrary authority of the status quo in favour of more lasting ideals, like Truth, Liberty and Fraternity. At its core, natural law theory asserts that law derives its authority not from judges or parliament, but from what it stands for and how it is executed. It has a long tradition, but key theorists that have furthered the theory and taken it in new directions include Plato & Aristotle, Hobbes & Locke, Kant and (now) Fuller (although his could be considered more of an elaboration rather than a new direction). This is by no means a complete list, more to let you know that youre in good company when youre talking about natural law. It is NOT in direct competition with positivist law in its claims at truth. They are BOTH useful in explaining different aspects of the law. To start, we will discuss Finnis. This is because a) he is my favourite legal theorist and this is my study guide and b) he provides a better indication of what natural law is about than Fuller, who can be a bit obtuse if you dont know the terms of engagement. Finnis What a boss. Aussie. True blue. Doing our nation proud in his defence of natural law and (by implication) natural rights. Im not gonna give a detailed (or even factually correct) account of F-dawg as hes just one of the peripheral theorists. Which is obviously a shame. Finnis believes that law gains its authority from human needs, taking Aquinas lead (also a Boss). Law is enacted to enable humans to live peacefully in society; it should reflect humanitys desire for a Good Life, and help us enable our society to achieve this (as much as this is possible for an instrument such as law).

Finnis bases the laws authority on the seven human values of: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and spirituality. Any law enacted, says Fin, must relate back to a realisation or compromise of one or more of these values. Personally, I would add liberty/autonomy and sustenance, finding a balance between the demands of the political right and left in our legal system, but that is controversial. I would also add truth, which is not. Regardless, Im going to continue with these (personal) values for the purpose of analogy. Hope you dont get confused come exam time mwahahahahahahahah. Lets take a law like speed limits, as an example. In finding justification (and natural law legality), we search for these values. The value of Life (not speeding and as a consequence ending anothers) is balanced against that of Liberty (going the speed you want). As we place more weight on the right to life than the right to speed, speed limits are enforced. NOTE that this theory doesnt offer us a definitive guide to what is legal; it forces us to think about our own values and justify laws based on reason. Lets take a more controversial law: abortion. There are both legal and (mostly) political arguments for and against. If we understand abortion to be a legal compromise between the value of life (rights to, etc.) and liberty (right to choose etc.) and the question of whether abortion is right or not becomes a little clearer. The theory doesnt indicate WHAT EXACTLY is right, but helps us be honest in our rationale for justifying/rejecting abortion. If we define life as beginning at fertilisation, then any abortion is murder and therefore unlawful in a natural law sense. If we define life as beginning at birth, then any abortion is a lawful (and good) exercise of a womans autonomy. Western society, by implication of its law, currently identifies life as beginning at the start of a late term pregnancy, once the foetus is more or less developed. This is both reasonable and (if correctly justified) moral. Natural law is inherently connected to morality. We must be able to tell good from bad. Moral relativists do not and will never understand natural law; they are better off sticking strictly to positivism and acknowledging their own moral ambivalence publicly so that they are never put in a position of power.

So thats more or less Finnis in a nutshell. Laws connected to fundamental and universal values, if not connected or some kind of compromise, then not legal. The weighting we give these moral values in the law determines the laws form and content, but that is a story for another day. Fuller Fuller, unlike Finnis, doesnt have a whole lot to say about the justification for law; he calls this external morality and doesnt theorise about it (we kinda have enough of those already). Fuller is concerned with the internal morality of law; of the morality that plays out within a positivist conception of law. So I realise your head is probably hurting right about now. Wtf is this guy on (about)?, I hear you asking. Ill do my best to explain (my take) on Fuller. Fuller is about good order. Good order refers to how the law should be structured so as to guide it in the best direction (as well as execution). The principles that good order/law NEEDS to be a real legal system are (according to Fuller): comprised of rules, that are: o accessible o not contradictory o possible to comply with o stable through time o followed by officials

Fuller is VERY similar to Raz in that he primarily concerns himself with the operation rather than the description/justification of law. This is why the Hart/Fuller debate seems like a false one. Its because it is. Theyre talking about different things. So heres an analogy for you. Fuller is a Jedi. Yes. A Jedi. And not just any Jedi: Fuller is Obi-wan-Kenobi (post episode 3). Fuller sees the evil around him that law masquerading as good order has come to wreak. The empire is positivist: it sees law as divorced from morality (justice); the law is whatever the Emperor Hart says it is (as executed by Darth Raz). The bureaucrats working for the Empire (also positivists) insist that it is

their duty to uphold the rule of recognition regardless of its content, resulting in intergalactic injustice. Fuller-wan-Kenobi realises that this must be stopped. He must find a budding young padawan (thats us, kids) and convince him that the Empire is evil, and to take up the cause of justice. The way he goes about this is to try to convince us that the Empire, due to its failure to follow certain internal moral criteria, is not a real legal system. And heres where it all falls down. Rather than take Finnis (Yodas) approach and teach us about what IS worth fighting for, Fuller-wanKenobi concerns himself with trying to destroy the Empire. And he cannot. The Empires logic is internally consistent; where Fuller says Morality, Darth Raz says Efficiency. Fuller cannot but succumb to the hot red sabre of the positivists logic. This despite his acknowledgement of the Aristotelian ideal of practical knowledge, i.e. that for understanding to be gained about a topic or ideal, it must be pursued. Mistakes will be made and learned from, and real world insight will be put to use rather than theory. His book uses historical analogies and examples in a way that positivists (by their overly theoretical nature) simply cannot. But. He is trying to prove Hart wrong. And Hart isnt wrong. His is merely one side of an increasingly complex law story. This marks the end of the preliminary version of How to Win Legal Theory. As it is a work in progress, I would REALLY appreciate any feedback, corrections, arguments or insights. Hope you enjoyed it. Stay tuned for the reflexivists: Dworkin, Cover and Douzinas. This is a big project, so if anyone wants to help out please email me rhysaj@gmail.com Peace xx

Interpretation

Rhys Jaconley

Note: Hart and Fuller also differ in e very key way regarding interpretation. Hart, in explaining legal interpretation, refers to the core and penumbra.

Dworkin Listen to this while you read: http://www.youtube.com/watch?v=HciB3SMwGqU Although technically an interpretivist, Dworkin is still a Jedi. He believes that law cannot help but stay true to the force so long as other Jedi (Judges) perform their function properly. Jedi. Dworkin tries to kill Emperor Hart through a different tact; he doesnt merely attempt to show that the Emperors logic is inconsistent, but deficient in giving a whole account of the law. Dworkin is Qui-Gon Jinn (clearly running out of Jedi here) in that he believes the force is best used by being present in the moment, rather than clinging rigidly to principle or precedent (although these are still very important in constraining a Jedis options). Let me elaborate. Dworkins principle thesis is that law (especially common law) regularly confronts the judge with specific situations that must be resolved. Many theorists have ideas about how exactly a judge resolves (interprets) the legal conflict. Hart asserts that the judge should refer himself to the core of settled precedent/meaning, and when confronted with the penumbra (hard case) must create law; he can rely on past decisions for guidance but is ultimately governed by moral judgement (on which Hart is deathly silent). Fuller says that the judge must be guided by procedural standards, and by maintaining fidelity to the purpose of the law the law will develop it in a morally faithful way. Dworkin, on the other had, asserts that specific legal conflicts are just that; specific. Judges may choose to resolve the conflict through reference to a combination of principle, precedent or policy. It is only when confronted with a situation that a judge may decide which is the best course of action, remaining faithful to the law.

In this way, we may make use of Dworkins story analogy. For Dworkin, the development of the law over time is like a never-ending story; we can chart the highs and the lows, the climaxes and the boring bits. Its central theme is justice; how closely the law accords with justice is what gives the story its narrative arc. Judges, when they make or affirm case law, are playing an active role in writing this story. Therefore, judgement of where the story should go next is required, while staying true to its narrative arc; no dream sequences here. It is up to the Judge to tell the best legal story about justice. And to be able to do that, she needs firm knowledge of the law: its history and its principles an understanding of the moral principles that underpin a certain societys legal framework With these two insights, the Judge, when the law runs out, will not have to resort to morality alone (Harts assertion; a slippery one implying arbitrary personal preference) but will have the rudder of the Rational Morality that is reflected in law & society to guide her decision making. The main criticism that Dworkin levels at Harts explanation of interpretation is that it conveys no understanding of what is actually involved in interpretation. Hart asserts that interpreters follow certain rules and principles; Dworkin points out that unless we know what these rules are and what they mean, it is impossible to accurately describe and understand judicial/legal interpretation. Dworkin uses another analogy (what a great guy!) to elucidate this point; that of courtesy. While a positivist like Hart may sit in a corner, scribbling furiously, trying to note all the hundreds of rules and by-rules regarding courtesy, Dworkin will operate from the principle of Respect, the fact of Social standing and general rules regarding appropriate behaviour. The distinction is that Hart ascribes no content to the rules he records, whereas Dworkin measures rules by their content. This means he has to learn less when passing judgement; he can operate from reason and principle without fact-checking every past decision and every dictionary definition.

Cover So Im covering Cover. There, I said it. Its out there. We can now all move on, and learn what law is all about (or not, if youre Cover). Also, Boss alert. Yeah thats right, Cover is a boss. Like these guys: http://www.youtube.com/watch?v=_l09H-3zzgA&ob=av3e Legal interpretation, for Cover, is carried out in a context of pain. Whether this is deprived personal liberty (prison), violence to personal property (fine) or forced community service, the threat of violence for non-compliance is a undeniable part of our legal system. Its delivery comes often in the form of Police, but the violence originates from the judgement; the Judge pulls an institutional trigger that blows away any and all fools that step to. Legal interpretation is, for Cover, the dealing out of pain (and outside Australia, death). When a Judge makes her pronouncement, she triggers an institutional process of structured violence against the individual that she has found against. Cover conceptualises of the law this way as it gives an entirely new slant on a concept we have come to accept in society. Hart says law is socially enforced rules, Fuller says good order and Cover says violence. His method of conceptualisation informs how we think about and justify the law. For Cover, conceptualising law as violence helps us to be wary of the law when attempting to find a role for it in society. Also, the fact that we live in a society where our law is based on violence (as opposed to shame) says a lot about the society itself. Cover has two main insights when conceptualising law as violence. The first is that the process of institutionalising violence necessarily means that there is a division of labour in meting out this violence. When a judge (Cover uses this term to refer to all lawmakers) makes a pronouncement, it doesnt seem to be a violent act; it is the police and the prison wardens who carry out state-sanctioned trespass against the defendant. However, it is the judge that decides whether the violence is to occur at all. The fact that it is the executive that carry these orders effectively means that the judge is removed from the process of violence that he is managing. This has important ramifications for legal interpretation in terms of its practice; is also critique of Dworkins theory of interpretation. Cover is

asserting that as everyone in the justice system will have different beliefs about the law/social fact/morality, it is impossible for Hercules to ensure that his desired interpretation of the law is carried out in effect. One example of this was the Native Title Amendment Bill, passed in direct opposition to the HCAs best interpretation of the law following Wik. Whereas the judiciary mostly concern themselves with moral legal justice (Dworkins thesis) the legislature have an altogether different take on the law, as they arent forced to respect past precedent or the morals embedded within. Similarly with the executive (police), who concern themselves with upholding the law without necessarily regarding the principles that Hercules does. Cover concerns himself with the force that flows from a legal decision. In effect, this means that the Judge(s) MAY consider what is the best course of action given the laws moral development (i.e. justice), BUT if they do so without regard for how the system that they operate in actually implements the new rule, they are flying blind. This is an important insight, one that is supported and developed by his second point; pain. The nature of pain, be it through a parking ticket, physical detention or actual torture, precludes any real understanding of the defendant as to why they are being punished. Wait, I hear you think, surely criminals know why it is that they are being punished?. Well, yes and no. While defendants might recognise that they have done wrong in the eyes of the law, it is very different to admitting that they did wrong and that they deserve the pain that is about to be dealt to them. They do not understand the pain being dealt (for the most part); it seems a grave injustice. Cover is here critiquing the entire western legal tradition of retributive justicebut he is unwilling to throw the whole system out. This is because he is fundamentally pessimistic about human behaviour. Cover can be viewed as a protg of Hobbes (for those of you schooled in political philosophy) in that he views human nature as naturally tending towards violence, needing strong authority to keep it in check. He uses Milgrams studies on violence and authority to show that we have evolved to tolerate human to human violence when it serves the Hierarchy. It is for this reason that Judges dont feel personally responsible for a death

sentence, that tram inspectors dont feel personally responsible for making me go hungry for 2 weeks, that we feel a thrill in seeing a just action hero doing terrible violence to his enemies (movies like payback, man on fire, kill bill and, if youre twisted enough, the saw franchise). It is a fundamentally bleak outlook on human nature that Cover commits himself to when he says that violence MUST be used by law against those that would use it. Cover critiques the system for brutality, but then gives us an equally brutal picture of humanity by which to justify that same system. What is the purpose of all this? Thats up for you to decide. I personally have gotten a lot from Covers ideas but clearly I differ on some pretty fundamental things. Another GREAT article to read (if you like this guys analysis) is his article on Nomos and Narrative; he tackles issues regarding the core and penumbra far more satisfyingly than Hart or Fuller have.

Rights
This is a summary of Campbells summary of rights.

Rhys Jaconley

Rights have been used in discourse in a variety of confusing ways. It should be made clear from the start that exercising rights is not always right. That is to say; we assert the existence of rights because they have a moral basis. It is right to respect life. It is right to uphold public order (collective right). It is right to have a fair trial. But. Rights are institutionalised rules. They are typically applied in formal ways (divorced from morals in their application). Raz is correct in noting that we need this for a functioning legal system; if we had a moral debate every time a formal right was infringed or exercised, the whole system would be stymied like a Greek economy (too soon?). Therefore, rights can be used in wrong ways; a person can exercise his/her right to an apprehended violence order if his/her partner has used insults or threatening language (this order has a reverse onus of proof, btw). Another (more grounded) example is exercising our negative right to pollute. In both these cases, the rights exercised were established based on (sound [usually]) moral principle but due to their positive nature can be divorced from morality in their application i.e. possibly used in immoral ways. Rights have become the touchstone of moral legal debate in the last few decades. Human rights especially so, but everyday laws are also assessed for which rights they promote or infringe. Campbell cites Hohfeld for identifying 4 brands of rights Formal liberty (what we have in the absence of law) Substantive (-ve/+ve rights) Facilitative (power rights to alter our own legal rights/obligations) Immunity right (to not have facilitative/power rights imposed on us) These types of rights all operate in different ways, but ultimately they must be assessed by the merit of their content; a moral judgement.

Dont be fraid of moral judgements. They good fo you. They what dis course all about. But ya better use ya reason, is all. Human Rights The main controversy regarding human rights is whether they are essential to human existence (i.e. right to life and other mostly negative rights) or are they essential to human dignity? This is still a very big debate and difficult to capture in a neat summary. Actually, Campbell does a good job. Probs better than me. Go read Campbell if you want a good overview on HRs. Here goes my take While the essentialist argument may seem compelling at first, if we look at its pragmatic application, it can result in nasty scenarios. A minimal approach to human rights MAY guarantee a right to life and (certain) liberties, but many people arguably have this in state like China and Zimbabwehardly ideal. Human rights in this way guarantees life but no quality of life; human rights can be upheld in a society that enforces abject misery. For human rights to actually deliver a level of humanity, they must try to uphold the necessities for human dignity. This is also problematic, as it is far from certain exactly how we achieve human dignity (left says social welfare, right says free enterprise), or even whether we really know what human nature is like in the first place (again, lots of theories and opinions, few authoritative accounts). The problem then becomes which rights to include as human rights: they must be both universal to all human beings and important to achieving human dignity. I am sure many of you have your own opinions on what these things might be, and you should argue for this rather than accept my pseudocentrist lefty bullshit as gospel. It is much more convincing when you argue for what you believe in. Pogge Pogges main deal is global injustice. Many people bemoan the current state of affairs, but Pogge is quite clever in his argumentation in that he convincingly puts the blame on western nations and by implication we,

the people that comprise those nations. What a finger-pointing little kraut. The way he does this is by firm reliance on developing nations citizens having the (negative) right to operate economically without interference from other actors. Anyone who is schooled on WTO and IMF policy knows by now that the whole shebang is geared towards corporate (who are usually based in, you guessed it, developed nations) interests and not necessarily on the stable political, social and economic growth that is necessary for a countrys climb out of poverty. By not changing these institutions that we form a directing (WRONG WORD) part of, we are implicitly endorsing the injustice generated by the global economic order. So rather than giving world vision five bucks when you can spare it, what we SHOULD be doing (according to Pogge) is campaigning for a level playing field for developing nations. He also ties it to the domestic level of the developing countries themselves (not being a Marxist, its not all about victimhood :P). Due to the unstable political nature of many of these countries, the ruling elite (often warlords or one-party officials) have a massive incentive to exploit the chaos for personal profit and to tighten their political grip on the nations they are running. While the global institutional order SHOULD be concerned with implementing accountable governance, the often find that dictators and despots pay their bills just as well (and some times better) than democratic polities. And so the injustice is maintained. Pogge is careful to frame his entire debate in terms of negative duties (so as to keep the western politico-philosophical tradition onside), but the implication that we as western citizens should actively campaign arguably crosses into positive territory. Gonzales Gonzales basically makes the exact same arguments as Pogge; that the institutional politico-economic order is unjust, that that structural adjustments should be made to alleviate poverty. The key difference is how she frames the injustice. While Pogge put it to us that it is our duty not to fuck others over with our economic institutions, Gonzales asserts that there is a human right to food (life). This is problematic, as western

philosophy has traditionally been resistant to a firm commitment to positive values such as the duty to feed others. Kant made this argument well by stating that by putting others before ourselves (or vice versa) we are treating people as means rather than ends. This is morally wrong out and out; people must be treated as ends in themselves, if not, Hitler happens. Positive duties imply an obligation to others, often to the detriment of the right ower (who probably has enough problems already). Douzinas Boss alert. Douzinas is highly critical of what the institution of human rights has come to represent in reality; a score of atrocities and book upon book of meaningless jargon. He agrees with Pogge and Gonzales that the current institutional order is fucked, but rejects the idea that more rules will fix that. He [=points to the currently codified human rights (UN) and the fact that they seem to be largely optional, depending on what their national interest (in the international sense) is deemed to be. He uses a number of historical examples to back this up, but it isnt difficult to see them. One glaring example is the lack of prevention of the Rwanda genocide; something many people say would never happened had there been oil in Rwanda (thusly making it in US/anyones national interests to controldare I say Iraq?). However, this is perhaps not a good example as Douzinas asserts that in an age where civilian casualties dwarf combat casualties, any kind of war waged on humanitarian grounds is completely hypocritical. A good example of governments hypocritically advocating rights can be found here: http://www.youtube.com/watch?v=S880UldxB1o&feature=youtu.be If youd like more info/theories on why this is so, I suggest you google international realism. *Personal insight* (please dont all use this on the exam; try to come to your own conclusions) While Douzinas agrees with Pogge and Gonzales

that there is massive institutional global injustice being perpetrated, one major criticism that Douzinas would make of his institutionalist compatriots is that they remain advocating the perpetrating institution i.e. the current world order. The rights that Pogge and Gonzales are advocating so ardently ALREADY exist in the UN declaration; they maintain that institutional adjustments (i.e. more rules) will correct the injustice. Douzinas is much more realistic (imo) in recognising that these kind of adjustments will either a) never happen or b) never have any practical effect, as it is the very nature of the current world order to promote these types of injustices. By advocating mere modifications to an unjust system, Pogge and Gonzales are being either hypocritical or unrealistic. While Douzinas only hints at a possible answer (Viva la revolucin!), his analysis of the impossibility of massive institutional change is compelling.

Justice

Rhys Jaconley

Gardner links law to justice (public legitimacy) justice is a moral virtue (may need to explain) the moral by which law is scrutinised (rather than any other morals) morals justify reasoning clash of morals (loyalty vs honesty) eg justice concerned with proportionality of weight given to different morals Gardener is a good entry-level justice guy. He is not without his flaws, so lets get stuck in and see what hes about. Listen up. Gardener starts off by showing us that there is a necessary connection between law and justice; if a law isnt just, it just dont feel right. This is because justice is what law is all about; if there aint no justice, there is no point to the law. So what is justice? One of the saddest things in this course imo is that there is only one class (sort of) decicated to this question. As lawyers, this should be central to an understanding of the law. But I digress. Justice is a moral virtue: we recognise it as a good thing without necessary recourse to reason to justify it. Justice is good. Full stop. What we actually mean when we say justice can vary greatly however, and therein lies the problem. Many debates about the nature of justice are really debates about entirely different moral values, such as liberty, desert and practicality. For more on the nature of rational moral debates (helpful!), check this! Gardener establishes that morals often conflict over what reasoning tells us is the right cause of action (his example of honesty v loyalty). What justice does is concern itself with the proportionality of the weight given to these morals when they conflict; a just course of action will negotiate a compromise between the morals in a balanced (i.e. impartial) way.

He then goes on to say that there are two ways that justice does this: by concerning itself with distributive justice and o this kind of justice concerns itself with treating people equally, and dividing up goods or ills in a proper or just way (geometric) corrective justice o this concerns allocating goods and ills in name of restoring the status quo ante/alter. It is effectively concerned with allocating punishment (although in private law, remedy) and, for me, is more controversial than Gardner would have us believe. If this piques your interest, I suggest googling the difference between retributive and restorative justice. Justice therefore has no moral content on its own; it is a reflexive moral tool that allows us to articulate competing moral principles in a pragmatic and considered way. Whereas moral people will be committed to their ideals (often in non-pragmatic ways; see Socialist Alliance and AntiAbortionists), just people will concern themselves with how the morals principles play out in reality, and the effects of this. Better to be just than moral, it seems. One strong criticism that Gardner levels at Hart is that, in Harts assertion that a rules (no formal content) comprise a legal system (DOES have formal content), Hart underestimates the importance of the Courts role in forming a legal system. A legal system with no court (method of adjudication) is no legal system, and while rules may be devoid of content, courts continually strive foe their conception of just law. This is important. The role of adjudicators is much larger than Hart would have us believe, and explains why Dworkin just will not shut up about it. This is all I have time for on Gardner. Any inclusions/modifications that people think are important are VERY WELCOME rhysaj@gmail.com Douzinas & Geary injustice

o approach traditionally as absence of justice i.e. evil is absence of good; worng conflict of morals in pursuing justice has stopped us from identifying & rejecting injustice o link to Aristotelian insight injustice fe;t by victims (hard to identify if not felt) strong criticism of western philosphys quest for truth over moral/pilotically pragmatic soloutions o many justice systems recognise only certain kinds of injustice injustice doesnt call for dialogue, but for action (can link to Covers insights on pain)

And were back to Douzinas again. Like many post-Marxists, he doesnt have any specific theory to out forward, just criticises current ones. But out of criticism we can further our understanding of whether the theory is right or not, so lets get amongst it. D&G start with the idea that Injustice is actually a far more useful morallegal concept that justice. Injustice is readily recognisable, and felt keenly by its victims. There has been a long and misguided tradition of defining injustice as the absence of justice. The problem with this approach is that NO ONE can agree on what exactly justice is. Every philosopher/theorist has tried to push their own version of justice; from Aristotle v Plato to Rawls v Nozick. There is still no agreement, and while many say that we can agree, I think that we Kant. D&G identify injsutice as a more fruitful mode of identifying the what and the how a legal system should orient itself, rather than chasing after Utopia. Most legal system chase the ideal of justice as set out in a) the constitution and b) current society; projecting a vision onto everyday legal conflicts. D&G may be right in asserting that as not everyone will be able to agree on the exact brand of justice (distributive /retributive /restorative/ utilitarian), courts should orient themselves towards minimising injustice rather than dealing justice (as if it were a finite resource).

Critical in D&Gs analysis is a firm rejection of corrective/retributive justice, as this kind of justice is based on a winner/loser model, which one party is almost certainly going to regard as unjust (often rightly so; anyone still ok with the [old] decision that ruled that wives cannot charge husbands for rape?). This is controversial; it implies that offenders should be rehabilitated rather than punished; justice no longer becomes about blame and punishment, a very hard idea to incorporate). We can link this back to Covers insights into the nature of pain; pain precludes understanding. If we want to remedy injustice by making people understand that their actions were unjust, we must do away with pain (punishment) in our legal system. Thats all I got for D&G. I agree with a lot of what they say, so please take this analysis with a grain of salt (its always easier to argue for what you believe in).

The Good Lawyer

I ran outta time for thishopefully YOU can contribute!! rhysaj@gmail.com Heres a piece from Rob Malcom: Gaita's conception of rights is fundamentally different from the other thinkers that we have come across so far. This means that his theory is a good one to place into a conversation with the others, as through negotiation of the difference we can expose both the theories underlying principals and our own understanding of the theories and what they mean to one another. For starters Gaita is a moral philosopher, he cares not for the institutional aspect nor the debate about the distinction between the formal and the substantive. Think about how this is dissimilar to the other rights theses we have studied ; For Behrendt rights cant do anything by themselves, they are just a peg, a marker that is objective and readily ascertainable and have to be guarded against. If Behrendt is going to actually achieve her social justice it wont be rights doing the hard yards they will be there but not in the vanguard. Social and institutional change is what does the work in Behrendts theory, the formal rights only expose the status quo and measure the change as it occurs. For Douzinas the whole thing is fucked. He hates the fact that the claim of radical revolutionary change has been usurped by the liberal wet dream of the twentieth century. His position is that allowing the west to impose human rights as a standard has simply allowed States another form of leverage over one another, with the rich west dominating the rest, being obnoxious to human rights but at the same time pointing the human rights finger. For Douzinas the Human rights dialogue is a microcosm of international power relations, the notion of them being able to affect any positive change is laughable. Gaita has no judgement of the system, his is not a theory that can be used for any revolutionary or institutional change because rights don't

need to actually do anything to receive the praise that he lumps upon them. For Gaita rights are a sui generis good, good qua good and are epiphenomenal. The value in rights is a recognition of common humanity and they are born out of love. Gaita makes a distinction between Blackburn J in Miliurpun and Brennan J in Mabo; Gaita is disparaging toward Blackburn for recognising the relationship between the Indigenous inhabitants and the land but not changing the system, and hero worships Brennan J for overturning the system even though the way that he does so contradicts the reality of the situation. This understanding underpins the inherent contradiction in Gaita: because his rights don't need to affect anything, the manner in which he worships them may not accord with their allocation by the other theorists. For Gaita Brennan is a hero for recognising the humanity, and extending it, Blackburn is a coward for recognising the humanity and denying it. But Brennan is also a coward, he said that terra nullius was in error and that the premise behind the label was wrong but has also said that the consequences that follow from that recognition of error will not accord to the aboriginal people the consequences that logically follow. If the acquisition was based on a doctrine in error, then the logical consequences should be the recognition that the system is in error. However Brennan does not do this he simply inserts a different fictional device 'radical title' to shore up the 'skeleton' and ensure that the legal framework remains unchallenged. Prior to Mabo it would have been ludicrous to talk about rights and fairness like the claim by a girl forced to work in a brothel that it was unfair. In the absolute denial of human status the call for fairness is unheard. For Gaita Mabo was a humanising of the 'other' and a levelling of the dialogue to proceed on equal status. From this equality claims of fairness are relevant, as they can be understood as being fair amongst equals. Rights have established each, as halving the same set of obligations and the respect of them becomes what is fair. Does reality accord with this conception; has the overturning in Mabo of terra nullius in any way levelled the dialogue? What would James Anaya say?

Winning Legal Theory

Rhys Jaconley

So here is what I THINK you need to win legal theory. It is NOT about memorising the theorists and theories. It is NOT about understanding every nuance of the arguments (although this is also important). What you have to do is DECIDE what YOU believe. This isnt hard. All the theories presented here have real world application; they speak to the core of the law that we are studying. Ideas of justice and how we achieve it is key to the development and exercise of the law. Not only that, but it makes law MUCH easier to study if you have an opinion about what it is and why it does what it does. I have found that boring-ass classes like Property and Contracts have transformed themselves from a long list of facts, names and rules into an intertwining narrative about Justice and the laws attempt to achieve it. Property has become the justice story of material desert; who gets what and why. Contracts has assumed a similar shape, but one of self-realisation: what are the rules that govern the behaviour of individuals that have decided to legally cooperate? This is nerdy and rewarding stuff. So please, dont reject legal theory. Engage. Get something out of it. Because we are forking out enough WITHOUT writing off our classes value to us. Lastly, dont stress too hard. You could be dead tomorrow.