Urgent Note to Students With Birch Outline

8/10/2019 Urgent Note to Students With Birch Outline

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URGENT NOTE:

TO JURISPRUDENCE STUDENTS

These outlines were produced by Dr Chris Birch

(from the Summer 2004-05 Session)

nd should be used s reference mterils only


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T4E DOCTRINE OF PRECEDENT

The doctrine of precedent depends upon the principle of stare decisis, the principle that courts in a

hierarchy are !ound !y the decisions of those a!o"e them in the hierarchy.

That part of a decision that !inds a #udge is the ratio decidendi. $ %ey pro!lem for the doctrine of

precedent is determining the ratio of cases.

Wh/ Ou(ht We to Follo# P&$t De)$o!$5

&ught we to decide case ' in a particular fashion merely !ecause case $ was decided in that fashion

in the past?

Chaim Perelman argued that the doctrine of precedent reflects the principle offormal justice.

The idea that li%e cases should !e decided ali%e.

There arepragmatic arguments for following precedents. The need for citi(ens and lawyers to

ha"e guidance on how courts will !eha"e in the future.

)f #udges did not follow the law it could !e argued that they are ma%ing the law. *udicial law

ma%ing would conflict with the principle that the exercise of law-ma%ing power should ha"e a

democratic mandate.It would violate the separation of powers doctrine.

Wh&t $ the R&to5

+ross in recedent in nglish /aw0 says: -

The rule of law expressly or impliedly treated !y the #udge as a necessary step in

reaching hisher conclusion, ha"ing regard to the line of reasoning adopted !y himher.3

$ttempts to pro"ide a formal or logical scheme for extracting the ratio from past cases ha"e !een

largely unsuccessful. 4ee Wambaughs test. 4ee Goodharts Theory.

)t appears to follow that the ratio of a case is what later #udges decide the ratio to !e.


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Would there !e a difficulty, if any, if #udges declared when they handed down decisions what the

ratio of the decision was?

T4E AMERICAN REALISTS

The $merican realists were a group of #urists writing at the end of the 15 th and first half of the

26th centuries principally in the 7nited 4tates. 4ome were #udges and others were legal

academics. $mongst the more prominent of the $merican realists were: -

&li"er Wendell Holmes 8#udge of the 74 4upreme +ourt9

arl /lewylnn 8academic9

*ohn +hipman ;ray 8academic 1ran% 8academic, go"ernment lawyer and later 74 >ederal #udge9.

The $merican realists criticised what they calledformalism or mechanical jurisprudence. The

notion that cases represented rules and that these rules could !e applied to the facts as found so

that the "erdict could !e arri"ed at deducti"ely. /egal reasons might still !e a constraint on the

type of "erdicts that could !e reached. 84eeJoseph Hutcheson, artin Golding and!ichard

Wasserstrom9.

)n 156 *erome >ran% pu!lished /aw and the odern ind. This ad"ocated a much more radical

"ersion of $merican realism. >ran% argued that, amongst other things: -

/egal reasoning could ne"er !e fully deducti"e

)n ascertaining the content of legal rules #udges were only !ound !y whate"er they

considered the rule to !e. They determined to what extent they were !ound.

The law is a rich set of rules with many ways of arguing to any particular result.


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The law contained such intrinsic complexity and uncertainty that #udges could always

formulate a respecta!le legal argument to #ustify any particular outcome of a case.

)n addition to the scope for #udges to redefine the law, the outcome of the case was also

determined !y the factual findings and here #udges again had a !road discretion as to what

findings to ma%e.

)n conseAuence of the a!o"e matters >ran% argued that #udges are in no logical sense e"er

constrained !y pre"ious decisions or !y any a!stract set of legal concepts. *udges are always free

to #ustify any result they wish.

A )&$e $tu%/ #ll "e u!%e*t&e! o' the %e.elo-+e!t o' & l!e o' -*e)e%e!t u$!( the

'ollo#!( %e)$o!$: 6

Permanent "rustee Co v #reedom #rom Hunger 815519 2= B4W/C 1@6

"roja v "roja 8155@9 B4W/C 2D5

Public "rustee v H$les 81559 B4W/C 1=@

The h$to*)&l )o!tet &!% +-l)&to!$ o' A+e*)&! *e&l$+

$ num!er of the $merican realists were social reformers who were concerned to show that the

law was not a fixed !ody of rules !ut capa!le of adaptation.

$merican realists argued that there could ne"er !e logically determinate answers and courts

should !e open a!out the fact that #udges in"ent the law as they apply it.

$merican realists argued that theories of legal reasoning should !e a!le to pro"ide relia!le means

of predicting what #udges will do in the future. They criticised formalism as an inadeAuate

predicti"e de"ice.


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$merican realism led to studies of #udicial psychology and #udicial !eha"iouralism and the

de"elopment of so-called #urimetrics.

Po!t o' .e# &!% le(&l theo*/

The $merican realists loo%ed at the legal system from the point of "iew of a lawyer or client

wanting to %now what the li%ely outcome of a case will !e.

C*t)$+ o' A+e*)&! *e&l$+

&ne primary criticism is that it fails as a theory of #ustification. Telling #udges that they

in"ent the law as they apply it does not pro"ide guidance as to how they should in"ent the

law.

any lawyers still ha"e a strong sense that there is a constraint on the outcome resulting

from legal concepts. $merican realism does not explain this constraint.

$merican realism appears to undermine the doctrine of the separation of powers.

LECTURE 2

RONALD DWOR7IN: LAW AS INTE8RITY

Conald Ewor%in was !orn in 151. He was appointed to the +hair of *urisprudence at &xford

7ni"ersity in 15D5. His most important wor% is /aws mpire pu!lished in 15


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TYPES OF MORAL T4EORY

Co!$eue!t&l$t Mo*&l Theo*e$

g. Eo what will produce the !est outcome for

the largest num!er of people

No!6)o!$eue!t&l$t Mo*&l Theo*e$

g Eo what is right, #ust, etc without regard to

conseAuences

Su"9e)t.$t Mo*&l Theo*e$

g. orality only reflects personal

preferences. We cannot rationally disagree onmoral issues.

O"9e)t.$+

g. orality expresses claims !inding on

e"eryone. )t is possi!le to ha"e rational moraldisagreements.

S)e-t)&l Mo*&l Theo*e$

g. We cannot pro"e any particular moral

theory is right. There is no such thing as moral

truth.

St*o!( O"9e)t.e Mo*&l Theo*e$

g. We can demonstrate rationally that some

moral theories are !etter, or that there is moral

truth or that some moral theories would !e

irrational

This ta!le is not an exhausti"e way of categorising moral theories.

Ewor%in ad"ocates a non-conseAuentialist theory of moral rights. He !elie"es that moral claims

are at least o!#ecti"e in the first sense descri!ed a!o"e.

D#o*!$ C*t)$+$ o' Po$t.$+

Ewor%in0s early essays particularly criticise H/$ Hart0s positi"ist theory of law. This was the

theory that: -

8i9 law consists of a !ody of rulesF


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8ii9 rules ha"e a central core of meaning where their application is clear !ut with a penum!ra

of uncertaintyF

8iii9 where cases fall within the penum!ra of rules there is no right answer to the legal

AuestionF

8i"9 where there is no right answer #udges exercise a #udicial discretion and ma%e law !y

creating a new ruleF and

8"9 #udges are thus law ma%ers, although they only ma%e law piecemeal.

Ewor%in criticised this theory on the following grounds: -

8i9 there are no gaps in the law, if an existing rule does not prohi!it conduct it is lawfulF

8ii9 #udges do not fill gaps they can only change existing rules or principlesF

8iii9 if #udges made law in the fashion Hart suggested they would !e acting as legislatorsF and

8i"9 if there was no right answer to a case it could not !e said that anyone had a right to the

outcome.

D#o*!$ Theo*/ o' L

%bjectivit$. There are right answers to legal pro!lemsF

Principles: /aw is not #ust rules !ut contains principlesF

Institutional &upport. *udges cannot apply any principles, they apply those principles which

ha"e institutional supportF

!ights. Cights are trumps. They o"erride conseAuentalist moral demands.


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rege0s anti-psychologism ne"ertheless

lea"es the nature of meaning somewhat mysterious.

)n the 15G60s Ea"idson sought to de"elop a theory of meaning in which meanings were o!#ecti"e

!ut without the mystery of >rege0s anti-psychologism. His theory is referred to as truth

conditional semantics.

&n this theory the meaning of a sentence 8sentences !eing the primary !earers of meaning9 is

represented !y a specification of the conditions which would render the sentence true.

There will clearly !e difficulties in applying this theory to sentences that do not o!"iously ha"e

truth "alue 8such as imperati"e sentences get up and shut the door39.

Me&!!( &!% I!te!to!&lt/

Truth conditional semantics captures some of the pu!lic aspects of meaning and part of the way

language may descri!e or represent the world. 'ut language is also intentional. hilosophers use

this term in a technical sense.

)ntentionality is that Auality of !eing directed towards or referring to something apart from the

spea%er. )f ) utter the sentence, aris is a !eautiful city3, we understand that the sentence uttered

!y me refers to and is a!out the capital of >rance. This, we also recognise, is in some way

associated with actual !eliefs and intentions on my part.

4o if a computer produced the sentence, aris is a !eautiful city3, through the operation of a

random sentence generator, we would not understand that sentence to !e a!out the capital of

>rance. $t least on one philosophical "iew the signs produced !y the computer would lac%

intentionality and meaning 8see 4earle0s famous +hinese room thought experiment98unless we

could find that the programmer had intended the computer to possi!ly say such a thing9.

$n important alternati"e theory to truth conditional semantics see%s to explain the nature of

meaning !y reference to a spea%er0s intention.


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)n 15=G in the article eaning3 in the hilosophical Ce"iew, "olume DD, ;rice sought to show

that the meaning of a sentence is associated with the intentions of a spea%er, and the intentions of

spea%ers will !e to induce a !elief in the mind of hearers in conseAuence of the speech. ;rice

pro"ides the following formulation as an analysis of meaning.

*ohn means that to *ane !y doing if:

a. *ohn does

!. With the intention that *ane !elie"e that

c. *ohn further intends that *ane recognises *ohn0s intention in !. a!o"e

d. *ohn further intends that *ane0s !elief comes a!out through her recognition of

*ohn0s intention in !.3

We often distinguish !etween utterer0s meaning, what the spea%er actually intended his or her

words to mean, and so called literary or dictionary meaning, namely what those words would

mean if uttered !y a normal competent spea%er of the language on a typical occasion for their

use. ;rice sought to explain dictionary meaning in terms of spea%er0s meaning.

Theo*e$ o' Me&!!( &!% Le(&l I!te*-*et&to!

Eoes a constitution mean what was intended !y the original drafters, or must it !e reinterpreted

in each age? Eoes it ha"e one meaning, or does its meaning shift, or does it ha"e multiple

meanings?

)n constitutional law the will3 theory of the nature of law and legal "alidity, that laws are

commands of the so"ereign political !ody, appears to fit with the utterer0s intention theory of

meaning.


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The utte*e*$ !te!to! theo*/ o' )o!$ttuto!&l &!% le(&l !te*-*et&to!

This theory still has some adherents 8such as /arry $lexander9. We might read some documents

primarily to ascertain the spea%er0s intention. Howe"er, if we read a constitutional text as if it is

merely a record of the intentions of the drafters and we treat those intentions as !inding legal

rules, numerous practical pro!lems arise.

1. )nterpretations can ne"er !e settled !y precedent as new historical e"idence may re"eal

that we had pre"iously misunderstood the drafters0 intentions and we therefore ha"e to

read the constitution differently.

2. Whose intentions are to count in any e"ent? ost constitutions 8or statutes9 ha"e not one

!ut many authors and their drafting was a complex process.

. /egal documents are often expressed in general language !ut the drafters could ne"er

ha"e had in mind all the possi!le instances to which the words might apply. Eo the words

only mean those things the drafters actually had in mind? )n which case the meaning of

the document will !e se"erely limited.

@. )f we treat the document has ha"ing meaning in regard to instances that were ne"er in the

minds of the drafters, how do we determine what meaning it had? Eo we as% what

intentions or thoughts they would ha"e had if they had turned their mind to the issue?

=. )f we adopt the last strategy, what other matters must we attri!ute to the founding fathers

to ascertain their counterfactual !eliefs? What would 4ir 4amuel ;riffith ha"e thought if

as%ed in 1


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S)&l& &!% Tetu&l$+

Eifficulties with the spea%er0s intention theory of meaning has led to a return to literal or

dictionary meaning !y some #urists as the explanation of the meaning of a legal text. This

approach is most freAuently referred to as textualism. ost current high court #udges in $ustralia

would descri!e themsel"es as textualists. The leading nglish language proponent of textualism

is $ntonin 4calia, a current #udge of 7nited 4tates 4upreme +ourt 8see his $ atter of

)nterpretation: >ederal +ourts and the /aw, 155G9.

4calia says that the meaning of the constitution is the meaning gi"en to the words !y the normal

canons of language use that go"erned the language at the time the constitution was drafted. &ne

is thus not concerned with the actual su!#ecti"e states of any of the drafters.

4calia !elie"es that this theory pro"ides a single in"ariant meaning of the constitution, its correct

and only meaning.

D'')ulte$ 'o* S)&l&$ Theo*/

There will still !e pro!lems of counterfactual scope. How do we %now whether normal users of

nglish in the 7nited 4tates in the 1G


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D#o*!$ Theo*/ o' E-e)t&to! O*(!&l$+

Ewor%in contrasts his "iew with what he calls the semantic originalism of 4calia. Ewor%in

argues that the drafters of the constitution must ha"e %nown that unforeseen circumstances

would arise and must ha"e intended that later generations would need to interpret the constitution

afresh to meet those unforeseen circumstances.

Ewor%in in effect argues that the constitution was written with the intention or expectation of

!eing adapted.

Ewor%in argues that the process of adaptation is not unconstrained. Ewor%in relies upon his

other general theories of !est fit3 and !est theory3 of the constitution to explain how #udges

will arri"e at a correct answer. Theories li%e Ewor%in0s ha"e sometimes !een descri!ed as

li"ing constitution3 theories.

St&!le/ F$h

>ish argued in a long series of articles and !oo%s that there is in effect no such thing as literal

meaning, or meaning in the text, if !y that is meant something read off the face of the document

without any prior process of interpretation. 8see his !oo%s Eoing What +omes Baturally3 and

There is Bo 4uch Thing as >ree 4peech39.

)n interpreting any document ) firstly ha"e to ma%e #udgments a!out the nature and type of

document it is. )n a sense this is recognised !y the law through the legal rule permitting

extraneous e"idence in determining whether a document is intended to !e contractual or not, 8see

*$re Great a(es Pt$ td v -& )aster I15ish generalises this proposition, arguing that in any reading of any legal text the esta!lishment

of the meaning is the result of an interpretati"e process which relies upon the interpreter0s

%nowledge a!out the nature and purpose of the document, and also depends upon the

interpreter0s "alues and !eliefs.


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>ish argues that the esta!lishment of consensus a!out the meaning of a document is the result of

shared interpretati"e practices amongst what >ish calls interpretati"e communities3.

LECTURE or the 'enthamites the only law was the

positi"e law of the society, those laws that had actually !een commanded or tacitly commanded

!y the so"ereign.

*ohn $ustin 81G56-1


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laws in"alid laws for ha"ing !reached natural law.

The natural law de!ate was also important in regard to the #ustification and grounding of the

powers of the Burem!erg Tri!unal. The conduct criminalised under the /ondon +on"ention

which go"erned the trial were not rules of pu!lic international law prior to the war. The

argument that this was ex post facto #ustice or "ictor0s #ustice was met with the argument that

there were natural law principles !inding on all human !eings and these were reflected in the

/ondon +on"ention document.

The significance of natural law theory has again emerged in ;ermany in the ast ;erman

'orderguard cases and in one instance the 'undesgerichtsohf held laws of the old ;EC

authorising the shooting people crossing the 'erlin Wall to !e in"alid on the grounds that they

"iolated natural law principles.

N&tu*&l L &!% 4u+&! R(ht$ P*!)-le$ ! Au$t*&l&! L

The notion that our constitution implies or depends upon such principles has !een raised in some

recent $ustralian decisions. 4ee in particular: -

eeth v Commonwealth of *ustralia 815519 1G@ +/C @==, the #udgment of Eeane and Toohey **

at @=D


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political transition and a new political consensus condemning past conduct.

)t has !een argued !y two contemporary $merican #urists that #udges ought not to rely upon

natural law reasons in a sta!le democratic society where the human rights reasons or natural law

reasons are contro"ersial.

*ohn Cawls0 +oncept of u!lic Ceason argues the #udges should only appeal to limited legal

reasons to a"oid !ecoming em!roiled in intracta!le moral and political de!ates.

+ass 4unstein has argued similarly that law in"ol"es deploying what he calls incompletely

theorised arguments3. *udges should not apply their glo!al political and moral "iews, for in a

multi-cultural and li!eral society there will often !e gra"e di"ision o"er these matters.

LECTURE

SCANDINAVIAN REALISM AND 4ANS 7ELSEN

I!t*o%u)to!

The 4candina"ian realists and Hans elsen were among the more significant legal philosophers

in +ontinental urope at the end of 15th century and the first half of the 26 th century. Their

theories were, li%e 'enthamKs, positi"istic and anti-natural law.

S)e!)e Phlo$o-h/ &!% Met&-h/$)$

The late 15th and early 26th century saw a series of extraordinary !rea%throughs in the physical

sciences, particularly in physics. The wor% of people such as ax lanc%, 'ohr, instein and

Heissen!erg has made its way into popular culture. The !eginning of the 26th century saw

philosophers loo% to science as a paradigm for %nowledge, and to inAuire whether principles

might !e deri"ed from a study of science which could illuminate non-scientific areas of thought.

4uch crucial aspects of the scientific model of %nowledge were seen as: -


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1. 'eing "alue freeF

2. 'eing !ased on experiment and the application of mathematics and logicF and

. $"oiding the postulation of entities that are not o!ser"a!le or that do not issue in

o!ser"a!le effects.

4ome philosophers saw science as standing in contrast to traditional metaphysics which had

sought to unco"er some %nowledge a!out the nature and structure of the uni"erse from pure

argument.

)n the first decades of the 26th century this anti-metaphysical "iew of philosophy was influential

amongst a group of philosophers %nown as the Lienna +ircle3 who stressed the importance of

empiricism as the foundation of %nowledge.

S)&!%!&.&! Re&l$+

What mar%ed all the 4candina"ian realists was an attempt to produce an empirical description of

law.

4&(e$t*o+ 81


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/aw and >act as fitting the phenomena of law into the spatiotemporal world3. He li%ewise

sought to explain law !y reference to descriptions of psychological states.

So+e )*t)$+$ o' *&%)&l *e%u)to!$+

/aw in"ol"es complex intentional mental states including !eliefs and thoughts a!out or

expressed in language.

)t is a contro"ersial issue at the forefront of contemporary philosophy of mind as to whether all

of our mental phenomena are capa!le of explanation in reductionist terms. )s it possi!le that we

will one day !e a!le to gi"e a complete description to all of our thoughts couched in terms of

descriptions of !rain states and neurological phenomena?

$ related difficulty is that a reduction of the sort proposed !y the 4candina"ian realists e"en if

possi!le is unilluminating a!out the true nature of law. 4uch a description would not !e capa!le

of !eing used for any concei"a!le practical purpose.

Al' Ro$$ 81


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4&!$ 7el$e! 81


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change as a result of a re"olution or coup d0Mtat, and people apply the new assumption, then laws

made with the new assumption will !e "alid. elsen0s theory appears consistent with maxim

might is right3.

Whether or not this contro"ersial assumption flows from elsen0s theory has !een considered in

cases in"ol"ing radical norm change. 4ee

ad/imambuto v ardner0+ur(e I15D5J $+ D@=

"he !epublic of #iji v Chandri(a Prasad 8+ourt of $ppeal of >i#i )slands, 1 arch 26619

andF

/indell, Why is $ustralia0s +onstitution 'inding, >ederal /aw Ce"iew, "olume 1D, 15


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$t +am!ridge 7ni"ersity the analysis of language had !een made a central concern of

philosophy !y the teachings of Wittgenstein 81


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sanctions. Cules a!out contracts and wills are not a!out the deli"ery of a sanction !ut confer

power upon people to engage in conduct that they could not practice without those rules.

Hart di"ided the legal system into primary rules, which were concerned with proscri!ing conduct

N eg, the principal rules of the +rimes $ct, and secondary rules, usually characterised as rules

a!out rules. Thus the rules of e"idence and procedure are secondary rules.

The primary and secondary rules of a legal system were "alid if they fell under a rule of

recognition. HartKs concept of the rule of recognition was "ery close to elsen0s concept of the

grundnorm.

Hart ac%nowledged that rules would ha"e a central core of meaning and a penum!ra of

uncertainty where their meaning was not clear. *udges would need to ma%e law where the

meaning of rules was not clear. This aspect of Hart0s wor% was particularly criticised !y

Ewor%in.

Hart !elie"ed that legal rules were clearly distinguisha!le from moral rules. $lthough they may

share the same logical and grammatical structure as moral rules the legal ought is not the same as

the moral ought. Hart criticised natural lawyers who sought to assimilate law and morality.

C*t)$+

Hart0s "iew of law as simply a rule system was criticised !y Ewor%in. $n analysis of the fine

texture of legal reasoning re"eals much of it is not rule !ased, !ut as Ewor%in suggests, consists

of appeal to principles or doctrines.

Hart treats any appeal !y #udges to moral principles as a conceptual confusion. )t is unclear why

Hart0s attempt to define law narrowly should prohi!it #udges from appealing to moral reasons.

ositi"ism is a normati"e theory, although Hart presented his theory as if it were merely a form

of conceptual analysis 8he descri!ed his theory in the +oncept of /aw as descripti"e sociology9

Hart ne"ertheless seemed to draw normati"e implications from his theory, namely that there


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should !e a proper separation !etween morals and law.

Hart was a li!eral in the sense espoused !y *4 ill and in his famous de!ate with /ord Ee"lin,

Hart argued against legal enforcement of sexual morality Hart may well ha"e intuiti"ely thought

that his li!eral "iews flowed from his positi"ism e"en though there may not ha"e !een a

necessary logical connection.

LECTURE =

LE8AL REASONIN8 A@OUT FACTS AND PRO@A@ILITY T4EORY

I!t*o%u)to!

*udges and lawyers spend more time reasoning a!out factual matters then legal matters and it is

therefore important to see what light contemporary philosophy may shed on this process.

The %ey legal concept regarding factual inAuiry is the notion of #udicial proof. This is presently

represented, at least in part, !y the definition of rele"ant e"idence 8s.== "idence $ct9 and the

definition of standard proof 8"idence $ct, s.1@6 ci"il standard, s.1@1 criminal standard, !eing

the well %nown rule in ci"il cases that proof is on the !alance of pro!a!ilities, and in criminal

cases that the prosecution must pro"e the case !eyond reasona!le dou!t9.

The usual definition of the ci"il standard and the definition of rele"ance !oth use the term

pro!a!ility3. The concept of pro!a!ility has !een a %ey focus of philosophical inAuiry for

se"eral centuries.

4$to*)&l @&)(*ou!%

The mathematical calculus of pro!a!ilities was first de"eloped !y 'laise ascal 81D2-1DD29.

ascal de"eloped the mathematics of chances as an axiomatic system in a correspondence with


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2ermat. This correspondence consisted of fi"e letters exchanged in the 4ummer of 1D=@.

ascal0s ro!a!ility Theory is freAuently taught within courses on statistics and the theory has

!een most often applied in calculating the li%elihood of outcomes in regard to repeated e"ents.

8eg, dice or card games or in predicting the li%elihood of certain properties !eing possessed !y

mem!ers of a population9. These applications are freAuently descri!ed as the freAuentist

interpretation of pro!a!ility theory.

any considered pu((ling the application of pro!a!ility to uniAue e"ents. What does it mean to

say that the pro!a!ility that the accused is guilty is 56O or the pro!a!ility that the go"ernment

will win the next election is =6O? )n 15=@ the mathematician /* 4a"age in The >oundations of

4tatistics3 showed that meaning could !e attached to Auestions a!out the pro!a!ility of a uniAue

e"ent. 4a"age proposed that an indi"idual choosing !etween competing theories chose as if

deciding what wagers to ma%e in a lottery in which the lottery outcomes represent the truth or

falsity of the propositions. 4a"age was a!le to use rational choice theory to show that a uniAue

num!er 8$9 may !e assigned to a proposition $ and that the num!er so assigned would follow

all the usual rules of con"entional pro!a!ilities. This is sometimes referred to as the su!#ecti"e

interpretation of pro!a!ility, since the pro!a!ility assigned to the truth of an e"ent represents the

su!#ecti"e #udgment as to the li%elihood of the e"ent !eing true.

L &!% P*o"&"lt/ Theo*/

The law appears to incorporate and depend upon the concept of pro!a!ility in a num!er of

important respects. $part from the concepts of proof the law has freAuently applied pro!a!ilistic

concepts to deal with the notion of proof in situations of ris% or uncertainty, see in particular: -

"." anagement v +roo(s 815G59 2 $/C 5= N uncertainty a!out the cause of an

accidentF

!ose v *bbe$ %rchard Propert$ Investments I15


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25

&ellars v *delaide Petroleum 8155@9 1G5 +/C 2 N uncertainty a!out the amount of loss

caused !y a misrepresentation.

I$ &ll Le(&l F&)tu&l Re&$o!!( A+e!&"le to M&the+&t)&l A!&l/$$5

athematical pro!a!ility as !een used !y courts in dealing with clear situations of uncertainty or

ris%, !ut do the rules that go"ern mathematical pro!a!ilities underlie all reasoning a!out factual

matters.

$ ma#or de!ate in the legal literature was triggered !y the decision inPeople v Collins Dairley N $ 'ayesian

$pproach to )dentification "idence3 in


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6

4ome ha"e argued that all reasoning a!out facts should, to the extent that we are a!le, conform to

the principles of the mathematical calculus of pro!a!ilities 8eg, Co!inson and Lignaux,

ro!a!ility N The /ogic of the /aw3, 81559, 1 &xford *ournal of /egal 4tudies, =@G at @D29.

&n this "iew e"en though we may not as a matter of practice !e a!le to explicitly calculate

pro!a!ilities in accordance with the mathematical calculus we should see% to ensure that our

usual rules and principles of inference are consistent with the mathematical calculus.

The calculus may allow us to identify areas of faulty reasoning 8eg, the alleged error of logic in

the High +ourt #udgment in Chamberlain v "he 1ueen 2.o345 815


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The A*(u+e!t &"out Co!9u!)to!

Where a legal action depends upon se"eral independent elements, all of which must exist to

esta!lish lia!ility, application of the mathematical calculus would reAuire us to multiply the

pro!a!ilities of each element. Where the pro!a!ilities are less than 1 8as will always !e the case9

the effect of multiplying them will !e to produce a small o"erall pro!a!ility, unless each had a

"ery high initial pro!a!ility. The law does not apply this rule !ut treats each matter as pro"en

once it is esta!lished to !e more li%ely than not.

+ohen also argued that the rule of inference upon inference applied in Chamberlain v "he 1ueen

is in fact the correct principle and pro"ides a protection against error.

The P*o"le+ o' @e/o!% Re&$o!&"le Dou"t

)t is not clear what mathematical pro!a!ility should correspond to a le"el of !elief !eyond

reasona!le dou!t in the guilt of the accused.

>igures such as .5 or .5= 8allowing for a 16O or =O li%elihood of error9 seem too low. Higher

pro!a!ilities would appear to ma%e the prosecution0s tas% too onerous.

)f the presumption of innocence !e eAuated with a pro!a!ility of (ero then on any application

of 'ayes0 theorem the pro!a!ility of the accused0s guilt will always come to (ero.

C*t)$+$ "/ D&.% 4o%($o!

)n his article The 4cales of *ustice: ro!a!ility and roof in /egal >act >inding3 8155=9 $/*

G@1 Hodgson argues that the mechanical application of the concepts of mathematical pro!a!ility

will produce wrong or un#ust results where it is applied to an inadeAuate e"idential !asis.

>urther, the calculus of pro!a!ilities may not !e of much assistance in determining what is an

appropriate e"idential !asis.


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Co!)lu$o! ? Wh&t P*!)-le$ Ou(ht to 8u%e Le(&l Re&$o!!(5

)t is clear from +ohen0s many examples that legal reasoning does not comply with the calculus

of mathematical pro!a!ilism. 4ome might suggest that this demonstrates the irrationality of the

law. )t may !e that #urists consistently underestimate the pro!ati"e weight of circumstantial

e"idence 8as some $merican scholars ha"e sought to show through empirical testing9.

That the law does not follow the mathematical calculus does not end the de!ate. )t is telling that

where we are concerned with ris% and uncertainty in many other areas of life the mathematical

calculus is relied upon in determining ris% 8eg, in ris% analysis in ma#or engineering pro#ects,

aircraft safety and the li%e9. ;i"en that we can ne"er !e a!solutely certain of the guilt of an

accused putting people in gaol is a ris% ta%ing acti"ity, the rational method for gauging those

ris%s may at least presumpti"ely !e one that complies with the method we apply in determining

ris%s in other areas of life.

LECTURE >

T4E LAW OF TORT AND ECONOMIC ANALYSIS

I!t*o%u)to!

This lectures loo%s at the principles that underpin the modern law of ci"il wrongs. The lecture

assumes that !ehind the legal rules and principles applied !y lawyers lies some general rationale

for tort law which explains its purpose and function. This rationale may !e a moral or political

theory. The two principal contenders in the scholarly literature are the argument that tort law

promotes economic efficiency, and the "iew that tort law reflects a principle of correcti"e #ustice.

E)o!o+) E'')e!)/

conomists use the notion of efficiency in a technical sense. $ distri!ution of resources amongst


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a population will !e most efficient when it would not !e possi!le to increase the satisfied

preferences of any mem!er of the population without decreasing the le"el of satisfied preference

of others 8a so-call areto eAuili!rium, named after the economist Lilfedo areto9.

This notion of efficiency depends upon the following assumptions:-

1. That mem!ers of the population are rational maximisers of their own self interestF

2. That there exists free exchange in accordance with the principles of a perfect mar%et

amongst each mem!er of the populationF and

. There has !een an allocation of goods to indi"iduals to hold pri"ately in which they may

trade.

The concept of a perfect mar%et depends upon the following assumptions: -

1. $ pri"ate sta!le allocation of resourcesF

2. The a!sence of force or fraud in regard to all transactions within the mar%etF

. That no one person can influence pricesF

@. That each person acts in accordance with their own rational self interestF

=. That transactions are costlessF

)t is sometimes also specified that each participant should ha"e full appropriate %nowledge

regarding any transactions they enter into. )f they lac% such %nowledge transactions will not !e

costless as they will need to expend effort in o!taining %nowledge necessary to %now whether

the transaction will !e more !eneficial than not.

The M&*et P*!)-le &!% Polt)&l E)o!o+/

The notion of rational maximisation of the satisfaction of preferences is at least conceptually


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related to the utilitarian doctrine of the maximisation of the happiness of the greatest num!er.

The ad"antage of mar%et theory is that it a"oids the pro!lem of #udging intersu!#ecti"e

preferences. Cather than someone ma%ing a decision a!out what is to !e considered in the !est

interests of all, a mar%et allows each person to determine what exchanges they wish to ma%e.

>redric% Haye%, the $ustrian economist, considered that mar%ets were an efficient means of

distri!uting resources !ecause they were !etter at exchanging information a!out indi"idual

preferences than central go"ernment planners 84ee his principles of Taxis and +osmos9

)t must howe"er !e recognised that while a mar%et may !e efficient in the areto sense it

need not !e #ust.

The areto eAuili!rium will !e different in e"ery case for each different original allocation of

resources.

)f the original allocation of resources was un#ust, the areto eAuili!rium may also !e un#ust.

>urther, +oase demonstrated !y way of a careful thought experiment that in a perfect mar%et

gi"en any initial distri!ution, and the marginal profita!ility of acti"ities, people will agree to

produce in accordance with the highest marginal profita!ility whate"er !e the legal lia!ilities

imposed upon those "arious acti"ities 8+oase0s theorem9.

M&*et F&lu*e

4ome economists argued that e"en a perfect mar%et ignored certain costs !ecause they were not

costs to the parties to the transactions. They referred to these costs as externalities. 8$ typical

example is the pollution cost of !uying a motor "ehicle !orne !y the community at large rather

than the parties to the transaction9. )t was argued that legal inter"ention was reAuired to impose

external costs upon the parties to ensure that society did not otherwise o"er in"est in such

acti"ities. +oase0s theorem casts dou!t upon some of these arguments regarding externalities.


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+oase0s theorem shifted the emphasis from the notion of externality to the pro!lem of

transaction cost.

fficient outcomes will only !e arri"ed at in a perfect mar%et, which is one in which

transactions are costless, and the parties ha"e complete %nowledge.

/egal inter"ention will therefore !e necessary to see% to produce the efficient outcome a

mar%et could ha"e produced if transactions were possi!le !ut where they ha"e !een

pre"ented !y transaction costs.

The P*$o!e*$ Dle++&

$nother famous example of mar%et failure is generated where"er the participants in a mar%et

ha"e a conflict !etween the maximisation of their indi"idual preferences and the collecti"e good.

PRISONERS DILEMMA

You

+onfess Cemain 4ilent

+onfess

Cemain 4ilent

>or further discussion of the prisoner0s dilemma, see: -

arfittF E Ceasons and ersons, &xford 7p, &xford, 15


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To*t L &$ Re'le)t!( & Utlt&*&! o* E)o!o+) P*!)-le

)n 6nited &tates v Carol "owing 1=6 >dd 1D5 at 1G /earned Hand * !ased his #udgment on the

following formula:-

)f Q ro!a!ility of in#ury

/ Q )n#ury N cost of in#ury

' Q 'urden of in#ury 8!eing the cost of precautions9

Then where ' R than x / no lia!ility will !e imposed. Where ' S rather than x / lia!ility

will !e imposed.

&n cost !enefit analysis of safety precautions see also >lemings /aw of Tort3, 5th dition,

p.11-12.

Po$!e*$ Theo*/

Cichard osner has sought to analyse all !odies of law from the point of "iew of economic

efficiency, arguing that this is the underlying principle of all legal doctrine.

)n explaining tort law, osner argues that compensatory damages are paid to a "ictim to gi"e

the "ictim an incenti"e to sue. This is essential to the maintenance of the tort system as an

effecti"e credi!le deterrent to negligence.

The economic function of compensation in tort, according to osner, is the deterrence of

inefficient accidents.

osner argues that the legal principles aim to achie"e an outcome compara!le to that which

would represent the most economically efficient outcome if the matter was capa!le of !eing

handled !y a mar%et.

The reason the law inter"enes is !ecause the conduct with which law is concerned is usually

one in which a mar%et is inappropriate !ecause of the cost of the transactions or some other


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cause of mar%et failure.

C*t)$+$ o' Po$!e*$ Theo*/

&ne peculiarity of osner0s theory is that it argues that law generally, and tort law in particular,

see%s through its principles of negligence and the li%e, to emulate mar%et efficiency, and yet, few

#udgments refer to economic efficiency as a reason or explanation of the legal principles applied.

osner suggests that legal principles that promote economic efficiency will !e more li%ely to !e

promoted and applied than ones that do not, rather li%e sur"i"al of the fittest.

$ further difficulty with osner0s theory is that it is hard to %now whether the outcomes

produced !y law truly reflect how a society would organise itself if mar%et principles could !e

applied.

Co**e)t.e Ju$t)e

)n the last 26 years a num!er of #urists ha"e suggested that the principles underpinning tort

law are not the promotion of economic efficiency !ut rather those of correcti"e #ustice. The

concept can !e traced to $ristotle0s Bicomachean ethics.

$s explained !y $ristotle, the concept of correcti"e #ustice in"ol"ed depri"ing a wrongdoer

of the gain and pro"iding compensation to the sufferer.

The aim is to ensure that each party is returned to the position that he or she was in !efore the

wrong was committed.

The notion of correcti"e #ustice is related to and dependent upon the concept of distri!uti"e

#ustice.

Eistri!uti"e #ustice concerns those principles that go"ern the o"erall distri!ution of goods


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rederic% Haye% and the contemporary philosopher Co!ert Bo(ic%9 argue that if

we see% to a!olish or !an pri"ate property or organise society without it there will of necessity !e

far more interference !y go"ernment in peoples0 li"es and the way they li"e. )n this "iew pri"ate

property is not itself "irtuous !ut a condition of li"ing in a fashion which protects indi"idual

li!erty and pri"acy.

The '*$t &)u$to! &*(u+e!t

&ccasionally we ac%nowledge !eing the first to claim something as a reason for entitlement 8eg,

getting to a restaurant or cinema early and putting a coat on a chair9. While this may !e a

con"enient institution in simple situations it is wholly unclear why !eing first to claim something

should gi"e one a moral entitlement against others. The argument is especially wea% in regard to

property which endures. )f you claimed 'lac%acre !efore me merely !ecause you were !orn

!efore me and got there first, your claim appears to ha"e little #ustification. Be"ertheless first

acAuisition has some significance in international law regarding territorial disputes.

Lo)e$ l&"ou* theo*/ o' .&lue

The most influential attempt at pro"iding a moral argument for a right to property was that of

*ohn /oc%e, the great nglish philosopher 81D2-1G6@9. His "iews on natural law and

go"ernment were outlined in his two treatises0 on go"ernment written in 1DG5 and 1D


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4tep 1: "eryone owns his own person

4tep 2: )t follows from 4tep 1 that each person owns the la!our of his !ody and mind.

4tep : When you mix your la!our with something you ha"e acAuired that was existing in

a natural state, you ha"e #oined something you owned with something you did not

own.

4tep @: )f 4tep is satisfied then a person owns that thing that they ha"e mixed with their

own la!our.

4tep =: $ pro"iso to the argument is that when one has appropriated something that

existed in a natural state, one must lea"e enough in common for others.

&ne difficulty with the argument is that it is unclear why, e"en if ) own my la!our, ) should own

whate"er ) mix it with. $s Co!ert Bo(ic% has argued, it is #ust as consistent that ) should lose

what ) own when ) mix it with something ) do not own.

The second "ersion of /oc%e0s argument o"ercomes some of the difficulties #ust referred to. The

argument proceeds after 4tep in the following fashion: -

Bew 4tep @: When ) add my la!our to something ) did no pre"iously own, ) add to the "alue of

that material pre"iously existing in a natural state.

Bew 4tep =: )t would !e un#ust for others to gain the "alue which ) ha"e created !y adding my

la!our to what was pre"iously existing in a natural state.

Bew 4tep D: ) am entitled to the product with which ) ha"e mixed my la!our since it would !e

un#ust for anyone else to appropriate that added "alue.

P*o"le+$ ! *e(&*% to Lo)e$ &*(u+e!t

The second argument depends upon it !eing un#ust that anyone !ut me gain any added "alue


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that my la!our has created. Howe"er, if ) was adeAuately compensated, why would it then !e

un#ust to ta%e the property from me if ) was not otherwise properly utilising it?

The idea of lea"ing enough in common for others limits the scope of the argument, especially

in our o"ercrowded world.

A*(u+e!t$ &"out $el' o#!e*$h- o' o!e$ "o%/ &!% +!%

This part of /oc%e0s argument seems to !e the most persuasi"e. ost of us consider that we

ha"e some moral right of self-control and dominion o"er oursel"es. art of the moral wrong

of sla"ery is that it infringes this principle.

/oc%e0s argument led to a long line of theories that identified "alue in anything produced or

manufactured, with the Auantity of effort or la!our that had gone into the product.

arx0s la!our theory of "alue is !ased upon this, and his concept of exploitation, and his

!elief that there would !e a re"olution to o"erthrow capitalism, deri"ed in part, ironically,from this la!our theory of "alue.

&n the other hand, isn0t this notion of mixing la!our or "alue with inanimate matter

metaphysically suspect?

Lo)e &!% o#!e*$h- o' l&!%

/oc%e !elie"ed that his argument could !e applied to ownership of land. Whoe"er went out and

cleared the forest and made the land capa!le of !eing culti"ated there!y acAuired ownership of it.

)t is unclear in regard to land why one would acAuire ownership of the land, merely !y clearing it

for agriculture, as opposed to ownership of the crop.

/oc%e !elie"ed that there was still unallocated land in his time. This was !ecause /oc%e !elie"ed


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that the nati"e peoples of Borth $merica had not acAuired ownership of their land. /oc%e

!elie"ed that they were huntergatherers who merely li"ed from the wild fruits from the land !ut

did not mix their la!our with the land. )t followed that they therefore acAuired no property in the

land and were not dispossessed !y uropean settlers.

/oc%e also !elie"ed that the use of land !y culti"ators was a !enefit to nati"e peoples.

meric de Lattel expanded /oc%e0s argument. )t was wrong, he said, when many people were

li"ing on parts of the earth where resources were scare through o"er population, that other people

should en#oy large tracts of land which were under utilised. They were ta%ing up more of the

earth0s surface then needed.

The influence of arguments of this sort as #ustifications for the doctrine of terra nullius is clear.

84eeabo .o34 815529 1G= +/C 1 at per 'rennan *9.

Ju$t'/!( !he*t&!)e

)f one loo%s to the la!our theory of "alue as the underpinning for our concept of property it is

unclear why we should permit free testation. y dominion o"er myself and the moral claims that

flow from it would, one would thin%, end on my death. How can ) ha"e an interest or right to

dictate what will happen to my property after ) ha"e ceased to exist.

/oc%e argued that as people are su!#ect to a principle of propagation, in !ringing people into

the world they acAuire an o!ligation to preser"e them, and they are not therefore proprietors

of their property solely for their use, !ut in part for the assistance and care of children.

/oc%e argued that therefore children had rights in regard to parent0s property and upon the

death of the parent the right of the child !ecame a!solute.

/oc%e0s argument would #ustify limited rights for children or immediate family mem!ers to

ma%e a claim !ut would certainly not uphold the right of people to dispose of property at


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their whim to friends or charities.

There may !e good utilitarian or rational choice arguments for #ustifying testation.

R(ht!( h$to*)&l #*o!($

The end of the 26th +entury has seen numerous demands for restitution for historical wrongs.

These ha"e !een made !y nati"e peoples 8$ustralia0s a!origines, nati"e Borth $mericans, etc9

and those whose property was ta%en !y communist or fascist regimes. any of these claims

depend upon the notion of a moral right to property which has !een "iolated.

There are complex counterfactual pro!lems in #ustifying a moral right to rectify old historical

wrongs since the current generation of claimants may not ha"e e"en existed if the wrongs had

not !een committed, since e"en the wrongs themsel"es almost ine"ita!ly constituted a necessary

part of the historical chain of cause and effect.

4ol"ing the pro!lem of historical wrongs !y way of restitution also raises important issues in

distri!uti"e #ustice. 4hould we simply distri!ute property now in order to maximise satisfied

preferences or other utilitarian goals or perhaps satisfy the principle of eAuality, or should we !e

concerned with tracing and correcting past in#ustices?

Ne# $$ue$ 'o* the )o!)e-t o' -*o-e*t/

/oc%e0s concept of property was !uilt on the argument that we own oursel"es. The issue of that

ownership and what it in"ol"es has now !een made more significant !y de"elopments in medical

technology.

)f ) own myself, do ), and should ), ha"e a moral right to dispose of the tissues of my !ody as

) see fit. Eo ) ha"e a moral right to sell one of my %idneys to impro"e my material position in

life?


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4hould ) own my genotype? 4hould ) !e a!le to sell it? 8The 7nited 4tates 4upreme +ourt

appears to deny ) ha"e such property rights9.

LECTURE 10

T4EORIES OF POLITICAL O@LI8ATION

I!t*o%u)to!

This lecture explores arguments for and against the "iew that we ha"e a moral o!ligation to o!ey

the law. )t is important to distinguish !etween an o!ligation to o!ey a particular law, founded

upon the reasons for ma%ing that particular conduct o!ligatory, and the different notion, that we

ha"e a general o!ligation to o!ey all laws, including those laws that we !elie"e are morally

un#ustified. ost no dou!t !elie"e we should o!ey the law prohi!iting murder. This howe"er

could easily !e explica!le on the !asis that most of us !elie"e %illing is wrong. 'y contrast, some

people !elie"e redistri!uti"e taxation is wrong. They may howe"er also !elie"e that despite its

wrongness they ha"e an o!ligation to o!ey this law.

This lecture will not !e a comprehensi"e sur"ey of the many political theories that ha"e !een

proposed !ut will loo% at some %ey steps in the e"olution of political thought.

The &*(u+e!t '*o+ Pl&to$ C*to

)n 55'+ 4ocrates was tried in $thens on a charge of !eing a menace to society and was

sentenced in death. )n lato0s famous dialogue, +rito0, a friend of 4ocrates, offered to arrange

escape for him. 4ocrates refused.

4ocrates re#ected the in"itation to flee !ecause it would !e a !reach of $thenian law. 4ocrates

argued that he had a moral duty to o!ey the law e"en if he !elie"ed the law is wrong. 4ocrates

put forward se"eral arguments for this position.


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&ne has agreed to o!ey the laws and it would !e a !reach of that promise to !e diso!edient.

4uch agreement had !een gi"en !y 4ocrates continuing to li"e in $thens there!y tacitly

ac%nowledging $thenian legal authority.

)n a further argument, 4ocrates said that he had recei"ed the !enefits of !eing an $thenian

citi(en throughout his life and as a matter of #ustice was o!liged to ta%e the !urdens that

come with those !enefits. &ne of the !urdens is the duty of o!eying the law.

4ocrates also argued that the relationship !etween 4tate and citi(en is not one of eAuality !ut

a relationship a%in to that of parent and child which carries a duty of o!edience.

$ further interpretation of 4ocrates argument is not that one must o!ey the law, !ut that one

must accept the penalty if one diso!eys the law.

4ocrates also argued that he had an o!ligation to o!ey !ecause he had !een afforded an

opportunity to persuade the 4tate to change the law. He had !een allowed a trial and ha"ing

ta%en that opportunity could not now diso!ey the law.

+rito contains one of the first instances of the so-called social contract3 argument. Howe"er,

one may Auestion why the moral o!ligation to %eep promises should o"erride other moral

o!ligations such as doing good !y !rea%ing !ad laws.

The &*(u+e!t '*o+ 4o""e$ Le.&th&!

Ho!!es 81=


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@ein!erg9 ha"e argued that punishment is

#ustified as an expression of society0s "alues, and aims to !ring the offender to the point of

recognising those "alues. &n some of these theories it is important that the offender achie"e a

state of repentance. )t does seem important in the process of punishment that people %now and

ac%nowledge why they are !eing punished.

&n the other hand, teleological #ustifications appear insufficient as complete #ustifications. How

can ) #ustify continuing to punish someone who has fully repented and fully accepted society0s

"alues?

Pu!$h+e!t3 t+e &!% -e*$o!&l %e!tt/

$ further ma#or issue in the #ustification of punishment is the impact upon an offender0s moral or

legal responsi!ilities of the passage of time. $re we right to treat a person as a single indi"isi!le

entity that persists throughout time? Eoes an offender deser"e to !e punished #ust the same

amount if caught 26 years after the offence, as when punished straight after the offence?

Eerric% arfit argued for a reducti"e theory of personal identity. )n this theory we are in a sense

not a single indi"isi!le entity throughout our li"es !ut a series of phases, al!eit closely connected

ones. The term person0 descri!es that !undle of phases, usually associated with a specific !ody

8!ut not perhaps in the future if we master !rain transplants N or perhaps !etter descri!ed as !ody


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transplants9.

arfit argues that in a real sense we are not the same person now as we were 26 or 6 years ago.

We ha"e different memories, different "alues, different thoughts. This may affect the extent to

which we deser"e to !e punished for something we did long ago in our past.

Doe$ +e+o*/ lo$$ &''e)t ou* l&"lt/ 'o* -u!$h+e!t5

What if after ha"ing committed a crime ) suffer a !rain accident and lose the whole of my

auto!iographical memory regarding my life at the time of the offence. Eo ) still deser"e to !e

punished e"en though ) ha"e no internal recollection or %nowledge of ha"ing committed the

crime, or how or why ) did it?

LECTURE 12

T4E RADICAL CRITIUE

I!t*o%u)to!

any modern commentators ha"e descri!ed a new culture war !etween post structuralist andor

post modernist social theorists on the one hand, and mainstream li!eral social theorists on the

other. 4uch commentators often identify mainstream li!eral thought as a continuation of the

rationalist and enlightenment pro#ects of the 1


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/oo%ing to an accumulation of %nowledge a!out issues and pro!lems that ha"e persisted

through time.

)n legal philosophy the mainstream pro#ect considers rationality, morality, and human rights,

to pro"ide foundations for legal doctrine.

The postmodernistpost structuralist mo"ement in contemporary social theory is often identified

with some or all of the following characteristics: -

$ denial of o!#ecti"e %nowledge claims and espousal of epistemological relati"ism

$ denial of the foundational nature of rationality.

The mo"ement is often associated with attempts to show that rational standards may themsel"es

!e culturally !ased, hence the ad"ocacy of: -

The indeterminacy thesis in regard to legal and moral reasoning and the interpretation of

texts

$n emphasis on the ideological function of many of the dominant concepts within

philosophy, politics and law, and in some of its more contro"ersial "ersions, also in science.

The )*t)&l le(&l $tu%e$ +o.e+e!t CLS

+/4 first came to prominence in the 7nited 4tates in the G60s and early


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The )o!)e-t o' %eolo(/

+entral to understanding the +/4 is grasping the notion of ideology as it has !een de"eloped !y

arxist and structuralist scholars.

arx0s theory of historical materialism "iewed the economic mode of production as the ultimate

determinant of social forms. Thus, capitalism for example, the most recent mode of production,

was a means of production go"erned !y commodity exchange and dependent upon mar%ets.

The social relationships !etween wor%ers and capitalists, and consumers and producers are

themsel"es produced !y that mar%et.

arx further argued that the theoretical life of the society 8meant in the general sense to

include not #ust philosophy and literature !ut law, politics, religion and the li%e9 was secreted

!y the economic mode of production. Thus, the form ta%en !y law and politics, and indeed

the philosophy of law and politics, was go"erned !y the economic relations within that

society.

The political theories of modern li!eralism that ha"e emerged since the 1


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CLS &!% the !%ete*+!&)/ the$$

+/4 did not so much add to the indeterminacy thesis de"eloped !y the $merican realists,

such as *erome >ran%, as pic% up the $merican realist criticisms of legal doctrine, and

demonstrate that they were more potent and su!"ersi"e of law0s claim to !e a neutral

ar!itrator of disputes than had !een ac%nowledged !y the $merican realists themsel"es.

$lthough >ran% had argued that law was indeterminate, he also argued that #udges should

free themsel"es from delusions that there were fixed rules and that once they had realised

their creati"e function they would !e more mature and responsi!le #udges.

The +/4 mo"ement replaced >ran%0s psychologism with a theory a!out law0s ideological

function. )f law performed an ideological function which helped reproduce oppressi"e

relationships 8eg, the relationships !etween wor%ers and !osses, !etween white people and

!lac% people, !etween men and women, etc9 then the indeterminacy thesis was e"en more

significant.

)f there are no right answers to legal pro!lems and law in some fashion is made up !y #udges

as they go along, then the chances are that the purposes ser"ed !y legal doctrines will !e

ideological.

CLS &!% t*&$h!( the l

$ num!er of early +/4 scholars saw their function as one of unmas%ing the ideological roles

played !y many traditional legal doctrines referred to !y some as trashing the law3. $ num!er

of techniAues were deployed. &ne was to see% to demonstrate the contradictory "alues which

might underpin a particular legal doctrine. Thus the criminal law on the one hand, through the

principle of mens rea, seems to assume a notion of free will and indi"idual moral responsi!ility.

4imultaneously, sentencing policy would, in discounting sentences, ac%nowledge that crime was

often caused !y social and psychological factors !eyond the control of the perpetrator. /aw is

thus seen to contain internal contradictions which undermine its claim to !eing an o!#ecti"e !ody


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of logically coherent doctrine. The contradictions themsel"es may reflect conflicts within the

society at large. 84ee for example, Euncan ennedy0s >orm and 4u!stance in ri"ate

$d#udication3 Har"ard /aw Ce"iew, 15GD, Lolume eminist #urisprudence has not sought to trash the law, so much as expose systematic gender

!iases or preference within the law.

4ome ha"e argued that the paradigm form of Western law represents a male approach to

sol"ing social disputes.

CLS &'te* the *e.oluto!

any of the early +/4 scholars were disparaging of the Western legal model generally, rather

than simply particular laws, and were reluctant to expand on what should replace the legal


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system. 4ome, li%e arxist scholars !efore them, eschewed offering a !lueprint for the future3.

Eespite the suggestions that moral and philosophical claims are culturally dependent and that

one could not esta!lish an o!#ecti"e "iewpoint, most proponents of +/4 ha"e serious, and deeply

felt political commitments. xplanations as to why one was entitled to continue moral and

political criticism while appearing to deny much of the !asis for such claims, are rarely

satisfactory.

>urther, in suggesting that traditional legal philosophy was merely engaged in an ideological

pro#ect in see%ing to o"ercome the paradoxes and inadeAuacies of our explanations for law, legal

authority and ad#udication, +/4 must !e committed to the notion that these pro!lems can !e

disposed of !y disposing of law. Howe"er, if we will need some system a%in to law for whate"er

society we wish to create, it seems ine"ita!le that the sorts of difficulties unco"ered !y legal

philosophers regarding the nature of meaning, the application of rules, and the pro!lem of

authority will continue to arise. The +/4 are uncon"incing in the suggestion that the re"olution

will do away with the need for law and the pro!lems with which legal philosophers ha"e !een

concerned.

+hristopher 'irch

Bo"em!er 2661

Urgent Note to Students With Birch Outline

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