Lwb333 Sg Sem1 12

Theories of Law

LWB333

Study Guide

Semester One 2012

SEMESTER CALENDAR

The QUT academic calendar includes the starting and finishing dates for the

University's first and second semesters, and the Summer Program.

http://www.studentservices.qut.edu.au/info/calendar/



Theories of Law Study Guide – Semester 1, 2012

©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



DIARY CRITICAL DATES

Task Date

Leadership

Reflective journal in progress

upload

Friday 23 March 2012

Reflective journal completion

Thursday 26 April 2012



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: [email protected] (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.

mailto:[email protected]

http://www.alpsa.net/



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;



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.



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.



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.



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.



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


Weight: 30%

Internal or external: External


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.



6.5 Reflective journal: 10% (internal and external students)

Assessment Item No. 3 Assessment name: Reflective journal


Weight: 10%

Internal or external: Internal and external


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.



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


Weight: 60%

Internal or external: Internal and External


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.



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



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



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


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


Recorded internal

workshop

Online discussion

board

Session 2: Sociological legal theories, American

Legal Realism



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


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)



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




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




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



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



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.

http://www.law.qut.edu.au/study/current/lawschool/

http://www.mopp.qut.edu.au/Appendix/append01cst.jsp#Part5

http://www.mopp.qut.edu.au/C/C_05_03.jsp#C_05_03.04.mdoc



PART C

FORMS



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:


Week 6

Workshop 5:

Session 1: Hart

Week 8

Workshop 6:


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



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:


Week 6

Workshop 5:

Session 1: Hart

Week 8

Workshop 6:


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



PART D:

WORKSHOP TOPICS



Workshop 1

Introducing legal theory



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



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



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.



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



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.



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



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



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.



Workshop 2

Module One

Natural Law Theories

SESSION 1: CLASSICAL NATURAL LAW

SESSION 2: SOCIAL CONTRACT NATURAL LAW

THEORIES




WORKSHOP OBJECTIVES


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



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


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


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



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


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


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.



RELIGIOUS AND THEOLOGICAL NATURAL LAW: ST

THOMAS AQUINAS


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.



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.



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.



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.



Workshop 3

Module One

Natural Law Theories

Contemporary natural law theories




WORKSHOP OBJECTIVES


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



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


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.



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


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



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.



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.



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?



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.

http://www.julianburnside.com.au/It's%20Time.htm



Workshop 4

Module Two

Modern Legal Thought:

Historical and conventional

approaches

SESSION 1:

MODERNISM, LIBERALISM, LAW AS

SCIENCE

SESSION 2:

BENTHAM AND AUSTIN




WORKSHOP OBJECTIVES


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)


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


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



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


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.



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.



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



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



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



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



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.



Bentham


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



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


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



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.



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?



Workshop 5

Module Two


Historical and conventional

approaches

SESSION 1: HART

SESSION 2: KELSEN




WORKSHOP OBJECTIVES


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


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


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



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.



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


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


KELSEN – CONCEPTUAL, KANTIAN, POSITIVIST?


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



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


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



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.



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?



Workshop 6

Module Three


Critical aspects

SESSION 1:

MARX, WEBER, DURKHEIM (Social, economic and historical theories of law)

SESSION 2:

SOCIOLOGICAL LEGAL THEORIES

AMERICAN LEGAL REALISM




WORKSHOP OBJECTIVES


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


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



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).



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


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


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,



because Marx showed that the world could be explained differently from that

inherited through Modernism.

ADAPTING MARXISM


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


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,



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.



THE THEORY OF INTERESTS


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


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



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


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


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.



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


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



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.



Workshop Six Activities


Session 1

Marx, Weber, Durkheim

(Social, Economic and Historical Theories of Law)

Syndicate Question



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?


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?



Workshop 7

Module Four


Contemporary Rights Theory

DWORKIN




WORKSHOP OBJECTIVES


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


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)



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


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



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


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,



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.



Workshop Seven Activities The whole group session is held in Session 2


Syndicate question

Dworkin



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.



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.



Workshop 8

Module Five


Contemporary Critique

SESSION 1:

CRITICAL LEGAL STUDIES




WORKSHOP OBJECTIVES


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)


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:


Davies pp 183-185, 191-193



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:


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


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



READ:

Davies pp 209-210


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


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:


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



Workshop Eight Activities


Session 1

CLS

Syndicate Questions



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?


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.



Workshop 9

Module Five



SESSION 1:

FEMINIST LEGAL THEORIES,

CRITICAL RACE THEORY,

POSTCOLONIAL LEGAL THEORY




WORKSHOP OBJECTIVES


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:


Davies pp 213-253, 274-282


Davies pp 233-249

Lloyd Chapter 14 (7th ed); 15 (8th ed)

CRITICAL RACE THEORY

Prescribed Reading:


Davies pp 283-300, 316-324


Davies pp 253-274

Lloyd Chapter 16 (7th

ed); 17 (8th

ed)


Prescribed Reading:


Davies pp 300-316



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



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:


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?



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:


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".



RADICAL FEMINISM

READ:


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:


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.)



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



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:


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:


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



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).



"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:


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.



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:


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.



Workshop Nine Activities


FEMINIST LEGAL THEORIES, CRITICAL RACE THEORY,


Syndicate Session



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.



Workshop 10

Module Five



POSTMODERNISM




WORKSHOP OBJECTIVES


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:


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



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:


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:


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



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):



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.



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



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.



PART E

PAST REFLECTIVE JOURNAL FEEDBACK

Past Exam Grouping

Past Exam Questions

Past Exam Feedback



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.


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.


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



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



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.



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



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



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.



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



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



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)


Postmodernism



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.



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



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



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



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



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 –



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.



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.



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.


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




http://www.law.qut.edu.au/files/Legal_Reference_Style_Guide.pdf

Lwb333 Sg Sem1 12

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