how to win legal theory (final draft)

8/3/2019 How to Win Legal Theory (FINAL DRAFT)

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Intro Rhys Jaconley

First, an overview. Overviews are important.

There has been a lot of resistance to this subject in this school. Mostpeople dont know what it is about or what its purpose is, which is sad.

Legal theory speaks to the core of what law is. It is the method we haveof understanding what the law is , how the law functions and why weshould have law.

As we are all currently studying The Law, I believe that these areimportant questions for each of us to think about. The analogy I haveused at parties is this: the law is like a gun. Most people studying law just

want to know how to use the gun to make money. Legal theory teachesus about how guns work, how they affect people and whether or not thegun should exist at all.

If you disagree with any of the above, stop reading now. The followinginformation will not be of use to you because it incorporates the premisethat it is important that law achieves justice into its underlying premise,and the resulting reasoning (i.e. me giving you guys a how-to on acing

exams) will make no sense. Youre probably better off ploughing away onyour own and trying to make sense of it based on your own beliefs.

If you do agree, you will find that Legal Theory will open up your world topossibilities that you hadnt considered before. Some of these possibilitiesinclude but are not limited to: that rights do/not exist in and of themselves, that the rule of law is fundamentally different from the lawitself and lastly (and imo most importantly) that a law can be judged forits legality without reference to judgments, past reasoning, juristicprinciple or EVEN a constitution. Exciting stuff.

As many of you may know, Ive been thinking very hard, very quicklyabout a great many things in the last few days. Those of you following meon facebook or my blog (http://eudemoniatic.blogspot.com ) know that Ihave distinct political and philosophical beliefs. These will inevitablyinform my take on a subject like this. As always, dont accept informationas gospel, do your research, and come to your own conclusions.
http://eudemoniatic.blogspot.com/http://eudemoniatic.blogspot.com/http://eudemoniatic.blogspot.com/http://eudemoniatic.blogspot.com/


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For those of y ou still reading, click Jurisprudence


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Jurisprudence Rhys Jaconley

Ok so the intro was just really an intro to an intro. LOL. Dont worry, Illtell you how to get good marks on the exam. This is all-important.

Approaching Legal Theory/Jurisprudence How one approaches Jurisprudence affects

how much sense it makes what you get out of it whether you view it as practical or purely theoretical whether or not you actually end up engaging properly with the

materials

That last point is important. What we are assessed on is our level of

Critical Engagement with the theories presented to us. This means that if we want to understand legal theory (and get the resulting kickass mark)we need to approach it properly.

How not to approach itLegal theory cannot be approached the way that other law subjects aretypically approached. The typical approach is usually to

learn the principles in the cases by rote

learn the cases main points of contention by rote learn the significant factual considerations by rote try and get a feel for how all this disparate information hangs

together.

The reason we usually study this way is that we are chasing high marks.We thin k that an exam is a test of knowledge, so we do our best to getand retain all the knowledge so that we may show how much we know come exam time. This is the way most people study. There is a reason forthis, but that isnt relevant to legal theory and Im wary of staying ontopic.

The problem with this style of study is that it often fails to conveyunderstanding .

These are 2 different approaches to education: knowledge andunderstanding. Both have their strong points but trust me when I say thatLaw is generally easier if you try and gain an understanding , rather than


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knowledge of it. If youd like to understand th e difference more fully, doyour own research. A good place to start(http://www.kmworld.com/Articles/Column/David-Weinberger/Knowledge-and-understanding--53115.aspx )

If youre still with me, then were ready foooooooor:

The Right way to approach legal theory

As weve established, trying to memorise all the different facts andtheories isnt a very productive way of engaging with legal theory. This is

because many of the theories that we discuss are just that: theories.They do not necessarily claim to be true , in the sense that it is true that if there is offer/acceptance and consideration, you have a contract. Theoriesare inherently subjective as they offer as a way of explaining things. If atheory asserts that it is true, it becomes doctrine. Legal theory isinterested inyou guessed ittheories.

In terms of what this means for you as a legal theory student, the

implications are actually quite liberating. You can choose to accept, orreject, legal theories. This is very important. Normally we are told weneed to know something well to pass an exam. This isnt the case inlegal theory. What you need to know is which theory is more compellingat explaining what it is trying to explain. The way we go about this iscritical analysis.

Critical analysis has a bad rep at the moment; its often lumped with theweed smoking arts students and wanker intellectuals that have nothingmeaningful to say. But it IS meaningful. It allows us to critique anassertion (be of it legal, theoretical and sometimes even factual in nature)and get closer to a concept of the truth. It is a tool, one that we aslawyers need to hone if we want to excel in our chosen careers.

When employing critical analysis, there are a few rules.1. Assess the assertion for its strengths and weaknesses2. Compare to any competing assertions that say something different

about the same topic area
http://www.kmworld.com/Articles/Column/David-Weinberger/Knowledge-and-understanding--53115.aspxhttp://www.kmworld.com/Articles/Column/David-Weinberger/Knowledge-and-understanding--53115.aspxhttp://www.kmworld.com/Articles/Column/David-Weinberger/Knowledge-and-understanding--53115.aspxhttp://www.kmworld.com/Articles/Column/David-Weinberger/Knowledge-and-understanding--53115.aspx


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3. See where the strong/weak points are between the two (or more)theories

4. Make an honest assessment as to what you think the situation really is

At the end of the day, you have to believe what you are arguing for. Thisis the beauty and the trap of legal theory. You can say whatever you wantand there is no right answer. But whatever you say must be backed upwith reason, analysis and a demonstration that you have understood whatthe theorists are trying to say. Which brings us to the theories.

Please note: the following summaries are MY readings of the theorists.They are NOT gospel. If you have a different idea of what the theorist is

actually trying to say, youre probably better off working using your ownpremises, and spreading that insight amongst your fellow students.


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Positivism Rhys Jaconley

Heres the thing about positivism: its a mostly descriptive account of thelaw. There is much confusion as to what positivism actually means orconveys. Again, many people tend to try and engage with these theorieswith an exam winning mindset. You MIGHT win exams, but youll missthe whole point of the theory. Bad law student, bad. So here goes my2c

Positivism is like an anthropological account of what the law is. It isdescriptive, but doesnt offer much explanation. Positivists identify the lawby reference to internal criteria, such as

is it a rule? do people obey it ?

what is the relationship between conformity and the law inquestion?

Is there an identifiable sovereign? Where do we locate authority for the law (if not in its

content)? Positivists assert that the law is a social fact i.e. devoid of moralconten t. THIS DOES NOT MEAN that positivists have no place for moralsin their conceptualisation of law & society. What it DOES mean is that

positivists view law as a set of rules that can be measured objectively(by reference to peoples conduct in relation to these rules). The havelittle or nothing to say about whether a law is right or just.

H.L.A. Hart While we started our studies with Hart, he is really coming off the back of a bandwagon that had been developing for hundreds of years (same goesfor Fuller). The development of positivist legal theory had gotten stuck intrying to answer the question: why do people obey the law (given thatthis theory rejects a moral evaluation of the law).

Previous theorists had attempted to explain obeying the law in terms of its consequences i.e. if you fuck with the law, the law fucks with you.However, this wasnt really satisfying in explaining compliance, as thereare MANY situations in society where it is clear that there will be no legalrepercussions from breaking the law, yet people still comply. How do weexplain this?


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Harts answer was to frame law as a socially enforced practice. Thismakes a lot of sense. When we break the law, we may immediately lookto see if there was a policeman or speed camera recording the incident.But we also look to see if anyone else saw.

We are socialised to accept compliance with the law, and this practice isupheld by other members in society. From our parents to our teachers toour fellow citizens, recognising and complying with the law is drilled intous; it is a social fact .

The way this compliance comes about is a u nion of primary and secondary rules. The primary rule that determines compliance is the

seriousness of the social pressure. While I might run a red light and get a$300 fine (harsh penalty), defecating in the middle of my contract lawclass is inconsiderable due to the seriousness of the social pressureprohibiting this act.

Secondary rules also influence whether or not a law is complied with (whether they are truly considered law); Hart identifies two but doesntdeclare this list as necessarily comprehensive.

The first is that the rule (law) in question is necessary for somedesirable end of the society; speed limits to reduce accidents.

The second is that there is usually a mediation between thedesires of the individual and the desires of the collective,otherwise there would be no need for the law in the first place. Alaw enforcing everyone to work would be absurd, as it is alreadyin everyones interests to do so.

It should be noted that Hart is on thin ice with his first secondary rule(whew!). It implies that there is a value in the law itself, using this valueto justify and explain compliance. But Hart attempts to reject valueswithin law; his is a purely objective study of the law. By using the idea of the phrased necessary to social life or highly prized feature of it flirtswith naturalism. But Hart wont go all the wayhe coquettishly admitsthat the law is devoid of values, then bats his eyelashes at a apparentlymoral reason for following the law (aims of society). Hart is a pricktease.This is a weakness in his theory, and deserves exploration by those thatfeel like having their way with the positivist doctrine.


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With compliance (the internal component of law) explained , Hart moveson to what is considered law (i.e. external ). He coined the term rule of recognition to describe the process by which any given society recognisesa law as legitimate. In some societies, whatever the chieftain says willbe law. In others, it was whatever the citizens reached consensus on (i.e.ancient Greece). In our society, it is whatever bill that is passed by bothhouses of parliament, or whatever ratio is issued from a superior commonlaw court.

The secondary rules, in their totality, make up the rule of recognition; amix of procedural requirements as well as observed compliance that drawthe lines between custom, law, and mere technicality.

It is important to repeat that Hart makes no judgement whatsoever as tothe legitimacy of a law outside of the rule of recognition. His is a purelydescriptive account, and we can take from it what we may.

Another important point on the rule of recognition is that it is an official s account of law. The rule of recognition may not be shared bythe wider community. However, it will be recognised by the lawyers, the

judges, the policeman, the parliamentarian and the bureaucrat, and thatis what matters. It is these people that determine the form, content andexecution of the law.

Hart isnt committed to the view that law is a good t hing in and of itself.He merely asserts that it is present throughout all structured societies.Part of the problem of the debate between Hart and Fuller is that theyfail to agree on a basic point: that morality is important for keeping thelaw in check. Rather than search for these points in common, they shouteach other down, insisting that the other is right in his conception of thelaw. But they arent necessarily mutually exclusive. One can use andapply a positivistic, Hartian conception of the law in identifying what thelaw is, whilst using a Fullerian moral account of what the law should be .But were getting ahead of ourselves again.

Raz Apart from having a badass name, Raz is also a bit revolutionary as he isa positivist with something meaningful to say about the operation of the


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law. Raz concerns himself with the rule of law; different from the lawitself.

Razs central argument lies in the fact that for a law to be effective,people must obey it. This is indisputable. A law that no-one or close tono-one follows is no law at all (arguably laws that criminalise the use of marijuana fall into this category; a less controversial example is that of

jaywalking). If no-one obeys it, it is an ineffective law (or if one takes astrictly empirical approach, no law at all).

Raz also has a few things say about procedure (not just compliance). Therules all relate to the effectiveness of the law, not whether the law is

considered to be good or not.

Prospective/Retroactive

Laws should be prospective, i.e. forward looking. They should articulatewhat they are designed to achieve, once the law is passed.Retroactive law is ineffective law, as it (apart from moral ideas of

justice) is ineffective in preventing the conduct it is designed to prohibit.

Whilst retroactive law may serve to criminalise/jail a perceived offender,the law will better achieve its aims if it clearly illustrates how citizensshould conduct themselves in the future

StableIf laws are changed often, citizens will find compliance difficult as therewill be uncertainty as to what the law is at any given point in time. Moreimportantly, citizens wont be able to conduct t hemselves with any senseof legal certainty in making future plans, as the law could change at anytime. This was one of the big sticking points of the recently passed carbontax; businesses couldnt engage in contracts (and were stifled in theiroperations) as they had no idea whether their ventures would beprofitable under the new system.

Open, Clear and General rules when Making LawHere Raz asserts that while law may be limitless in its complexity in itspursuit of the secondary rule of the laws aim s, it should be guided byunderlying principles.


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Example: while it may seem discriminatory, complex (and even unjust)that indigenous citizens get larger welfare payouts than non-indigenouscitizens, this (complex and seemingly contradictory) rule is guided by theunderlying principle of distributive justice based on need, where theasserted social fact is that indigenous needs arent met as easily byAustralian society and therefore deserve extra monetary assistance.Whatever you think of the argument, the rule is guided by a generalprinciple that can help the citizenry engage with and gain a conception of the law and its functions.

*comment* Here Raz is playing the same game as Hart (see above),flirting with Natural Law theory. He is quick to state that the aims of the

law may be whatever the society deems worthy, but relies on theexistence of general principles (morals?) to guide their formation. Heis right in asserting that this is necessary for good rule of law, but soundsquite Fullerian; thi s argument closely resembles Fullers thesis on goodorder.

Independent JudiciarySee legal theory/con law for why this is important. If you dont know by

now I really cant help you.

Principles of Natural Justice must be observedSee the comment above; he argues for a fair/open hearing, absence of bias etc.

*comment* it is arguable that this isnt necessary for rule of law i.e. theeffectiveness of law. I would argue that it is easier to enforce compliance when rulings are arbitrary, closed and unfair. This creates an aura of fearregarding public practice, and citizens will be less willing to step out of line. Please dont plagiarise this idea come exam time

Courts should have review powersNo comment

Courts should be easily accessible


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This relates to what we studies in DR. Yes, we studied something in DR.Access to justice relates to the cost/wait time/accuracy of court decisions.An effective system should excel in these areas.

The discretion of crime-preventing agencies should not be allowed topervert the lawSee: http://www.youtube.com/watch?v=JrRZBVqioeU

Raz admits that principles 4 to 8 are there to avoid the perversion of thelaw by those in authority. Raz clearly states that while most societiesregard law to be necessary , law by virtue of its nature (Cover has somegreat insights here) can lead to horrible, horrible things. Dare I cry Nazi?

Even the requirement that one mustnt walk backwards eating peanuts ata concert in Calafornia seems, to me, a step too far.

So what is Raz on about? While a positivist in theory, he seems to beimplying that the knife that is law, for it to be sharp, must also not be acudgel. Or a gas chamber. He attempts to make no judgement on themoral reasons the knife is used, but insists that the rule of law keeps theknife honed and straight; while he states this serves efficiency and the

development of the law, there IS moral value in using a knife over poison.He is saying that law, to fulfil its function effectively, must be orderedwell. And this is a very fullerian argument.

He tries to stay separate from morality by invoking the principle that lawin this way merely respects the citizens autonomy (by being clear andeffectiveif you choose to go on a killing spree the next time your teamloses, the law respects your implicit choice to go straight to jail).However, the notion of respect for autonomy is an inherently moralargument. I didnt understand exactly what Raz was trying to do here;any insight would be more than welcome.

Well thats it for me on Raz and Positivisim. Raz articulates quite nicelyhow the law can be effective (and the importance of this) without aclearly necessary link to the morality of law (although imo he is less thansuccessful in this enterprise).
http://www.youtube.com/watch?v=JrRZBVqioeUhttp://www.youtube.com/watch?v=JrRZBVqioeUhttp://www.youtube.com/watch?v=JrRZBVqioeUhttp://www.youtube.com/watch?v=JrRZBVqioeU


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


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Natural Law Rhys Jaconley

Natural law jurists are like Jedi: upholders of a higher moral order.Everyone wants to be a Jedi.

Natural law has its roots as far back as the ancient Greeks, but its criticalmoments in western history have been the French/American revolutions.In both these instances, a political society rejected the arbitrary authorityof the status quo in favour of more lasting ideals, like Truth, Liberty andFraternity. At its core, natural law theory asserts that law derives itsauthority not from judges or parliament, but from what it stands for andhow it is executed.

It has a long tradition, but key theorists that have furthered the theory

and taken it in new directions include Plato & Aristotle, Hobbes & Locke,Kant and (now) Fuller (although his could be considered more of anelaboration rather than a new direction). This is by no means a completelist, more to let you know that youre in good company when your talkingabout natural law. It is NOT in direct competition with positivist law in itsclaims at truth. They are BOTH useful in explaining different aspects of the law.

To start, we will discuss Finnis. This is because a) he is my favourite legaltheorist and this is my study guide and b) he provides a better indicationof what natural law is about than Fuller, who can be a bit obtuse if youdont know the terms of engagement.

Finnis What a boss. Aussie. True blue. Doing our nation proud in his defence of natural law and (by implication) natural rights. Im not gonna give adetailed (or even factually correct) account of F- dawg as hes just one of the peripheral theorists. Which is obviously a shame.

Finnis believes that law gains its authority from human needs, takingAquinas lead (also a Boss) . Law is enacted to enable humans to livepeacefully in soci ety; it should reflect humanity s desire for a Good Life,and help us enable our society to achieve this (as much as this is possiblefor an instrument such as law ).


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Finnis bases the laws authority on the seven human values of: life,knowledge, play, aesthetic experience, sociability (friendship), practicalreasonableness, and spirituality. Any law enacted, says Fin, must relateback to a realisation or compromise of one or more of these values.Personally, I w ould add liberty/autonomy and sustenance, finding abalance between the demands of the political right and left in our legalsystem, but that is controversial. I would also add truth, which is not.

Regardless, Im going to continue with these (personal) values for thepurpose of analogy. Hope you dont get con fused come exam timemwahahahahahahahah.

Lets take a law like speed limits, as an example. In finding justification(and natural law legality ), we search for these values. The value of Life(not speeding and as a consequence ending anothers) is balanced againstthat of Liberty (going the speed you want). As we place more weight onthe right to life than the right to speed, speed limits are enforced. NOTEthat this theory doesnt offer us a definitive guide to what is legal; itforces us to think about our own values and justify laws based on reason.

Lets take a more controversial law: abortion. There are both legal and(mostly) political arguments for and against. If we understand abortion tobe a legal compromise between the value of life (rights to, etc.) andliberty (right to choose etc .), the question of whether abortion is right ornot becomes a little clearer. The theory doesnt indicate WHAT EXACTLY isright, but helps us be honest in our rationale for justifying/rejectingabortion. If we define life as beginning at fertilisation, then any abortion ismurder and therefore unlawful in a natural law sense. If we define life asbeginning at birth, then any abortion is a lawful (and good) exercise of awomans autonomy. Western society, by implication of its law, currentlyidentifies life as beginning at the start of a late term pregnancy, once thefoetus is more or less developed. This is both reasonable and (if correctly

justified) moral. Natural law is inherently connected to morality. We mustbe able to tell good from bad. Moral relativists do not and will neverunderstand natural law; they are better off sticking strictly to positivismand acknowledging their own moral ambivalence publicly so that they arenever put in a position of power.


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So thats more or less Finnis in a nutshell. Laws connected to fundamentaland universal values, if not connected or some kind of compromise, thennot legal. The weighting we give th ese moral values in the lawdetermines the laws form and content, but that is a story for anotherday.

Fuller Fuller, unlike Finnis, doesnt have a whole lot to say about the justification for law; he calls this external morality and doesnt theorise about it (wekinda have enough of those already). Fuller is concerned with the internal morality of law; of the morality that plays out within a positivistconception of law.

So I realise your head is probably hurting right about now. Wtf is this guyon (about)?, I hear you asking. Ill do my best to explain (my take) onFuller.

Fuller is about good order. Good order refers to how the law should bestructured so as to guide it in the best direction (as well as execution).The principles that good order/law NEEDS to be a real legal system are

(according to Fuller): comprised of rules, that are:o accessibleo not contradictoryo possible to comply witho stable through timeo followed by officials

Fuller is VERY similar to Raz in that he primarily concerns himself with theoperation rather than the description/justification of law. This is why theHart/Fuller debate seems like a false one. Its because it is. Theyretalking about different things.

So heres an analogy for you. Fuller is a Jedi. Yes. A Jedi. And not just anyJedi: Fuller is Obi-wan-Kenobi (post episode 3). Fuller sees the evilaround him that law masquerading as good order has come to wreak. Theempire is positivist: it sees law as divorced from morality (justice); thelaw is whatever the Emperor Hart says it is (as executed by Darth Raz).The bureaucrats working for the Empire (also positivists) insist that it is


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their duty to uphold the rule of recognition regardless of its content,resulting in intergalactic injustice.

Fuller-wan-Kenobi realises that this must be stopped. He must find abudding young padawan (thats us, kids) and convince him that theEmpire is evil, and to take up the cause of justice. The way he goes aboutthis is to try to convince us that the Empire, due to its failure to followcertain internal moral criteria, is not a real legal system.

And heres where it all falls down. Rather than take Finnis (Yodas)approach and teach us about what IS worth fighting for, Fuller-wan-Kenobi concerns himself with trying to destroy the Empire. And he

cannot. The Empires logic i s internally consistent; where Fuller says Morality, Darth Raz says Efficiency. Fuller cannot but succumb to thehot red sabre of the positivists logic.

This despite his acknowledgement of the Aristotelian ideal of practicalknowledge, i.e. that for understanding to be gained about a topic or ideal,it must be pursued. Mistakes will be made and learned from, and realworld insight will be put to use rather than theory. His book uses

historical analogies and examples in a way that positivists (by their overlytheoretical nature) simply cannot. But. He is trying to prove Hart wrong.And Hart isnt wrong. His is merely one side of an inc reasingly complexlaw story.

This marks the end of the preliminary version of How to Win LegalTheory. As it is a work in progress, I would REALLY appreciate anyfeedback, corrections, arguments or insights. Hope you enjoyed it.

Stay tuned for the reflexivists: Dworkin, Cover and Douzinas. This is a bigproject, so if anyone wants to help out please email [email protected]

Peace xx
mailto:[email protected]:[email protected]:[email protected]


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Interpretation Rhys Jaconley

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

Dworkin

Listen to this while you read:http://www.youtube.com/watch?v=HciB3SMwGqU

Although technically an interpretivist, Dworkin is still a Jedi. He believes

that law cannot help but stay true to the force so long as other Jedi(Judges) perform their function properly. Jedi. Dworkin tries to killEmperor Hart through a different tact; he doesnt merely attempt to showthat the Emperors logic is inconsistent, but deficient in giving a wholeaccount of the law. Dworkin is Qui-Gon Jinn (clearly running out of Jedihere) in that he believes the force is best used by being present in themoment, rather than clinging rigidly to principle or precedent (althoughthese are still very important in constraining a Jedis options) .

Let me elaborate.

Dworkins principle thesis is that law (especiall y common law) regularlyconfronts the judge with specific situations that must be resolved. Manytheorists have ideas about how exactly a judge resolves (interprets) thelegal conflict. Hart asserts that the judge should refer himself to the core of settled precedent/meaning, and when confronted with the penumbra(hard case) must create law; he can rely on past decisions for guidancebut is ultimately governed by moral judgement (on which Hart is deathlysilent). Fuller says that the judge must be guided by proceduralstandards, and by maintaining fidelity to the purpose of the law the law will develop it in a morally faithful way. Dworkin, on the other had,asserts that specific legal conflicts are just that; specific. Judges maychoose to resolve the conflict through reference to a combination of principle, precedent or policy. It is only when confronted with a situationthat a judge may decide which is the best course of action, remaining

faithful to the law.
http://www.youtube.com/watch?v=HciB3SMwGqUhttp://www.youtube.com/watch?v=HciB3SMwGqUhttp://www.youtube.com/watch?v=HciB3SMwGqU


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In this way, we may make use of Dworkin s story analogy. For Dworkin,the development of the law over time is like a never-ending story; we canchart the highs and the lows, the climaxes and the boring bits. Its centraltheme is justice; how closely the law accords with justice is what gi vesthe story its narrative arc. Judges, when they make or affirm case law,are playing an active role in writing this story. Therefore, judgement of where the story should go next is required, while staying true to itsnarrative arc; no dream sequences here.

It is up to the Judge to tell the best legal story about justice. And to beable to do that, she needs

firm knowledge of the law: its history and its principles an understanding of the moral principles that underpin a certain

societys legal framewor kWith these two insights, the Judge, when the law runs out, will not haveto resort to morality alone (Harts assertion; a slippery one implyingarbitrary personal preference) but will have the rudder of the RationalMorality that is reflected in law & society to guide her decision making.

The main criticism that Dworkin levels at Harts explanation of interpretation is that it conveys no understanding of what is actuallyinvolved in interpretation. Hart asserts that interpreters follow certainrules and principles; Dworkin points out that unless we know what theserules are and what they mean , it is impossible to accurately describe andunderstand judical/legal interperetation.

Dworkin uses another analogy (what a great guy!) to elucidate this point;that of courtesy. While a positivist like Hart may sit in a corner, scribblingfuriously, trying to note all the hundreds of rules and by-rules regardingcourtesy, Dworkin will operate from the principle of Respect, the f act of Social standing and general rules regarding appropriate behaviour. Thedistinction is that Hart ascribes no content to the rules he records,whereas Dworkin measures rules by their content. This means he has tolearn less when passing judgement; he can operate from reason andprinciple without fact-checking every past decision and every dictionarydefinition.


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Cover So Im covering Cover. There, I said it. Its out there. We can now allmove on, and learn what law is all about (or not, if youre Cover). Also,Boss alert. Yeah thats right, Cover is a boss. Like these guys:http://www.youtube.com/watch?v=_l09H-3zzgA&ob=av3e

Legal interpretation, for Cover, is carried out in a context of pain.Whether this is deprived personal liberty (prison), violence to personalproperty (fine) or forced community service, the threat of violence fornon-compliance is a undeniable part of our legal system. Its deliverycomes often in the form of Police, but the violence originates from the

judgement; the Judge pulls an institutional trigger that blows away any

and all fools that step to.

Legal interpretation is, for Cover, the dealing out of pain (and outsideAustralia, death). When a Judge makes her pronouncement, she triggersan institutional process of structured violence against the individual thatshe has found against. Cover conceptualises of the law this way as itgives an entirely new slant on a concept we have come to accept insociety. Hart says law is socially enforced rules , Fuller says good order

and Cover says violence . His method of conceptualisation informs how we think about and justify the law. For Cover, conceptualising law asviolence helps us to be wary of the law when attempting to find a role forit in society. Also, the fact that we live in a society where our law is basedon violence (as opposed to shame) says a lot about the society itself.

Cover has two main insights when conceptualising law as violence. Thefirst is that the process of institutionalising violence necessarily meansthat there is a division of labour in meting out this violence. When a judge(Cover uses this term to refer to all lawmakers) makes a pronouncement,it doesnt seem to be a violent act; it is the police and the prison wardenswho carry out state-sanctioned trespass against the defendant. However,it is the judge that decides whether the violence is to occur at all. The factthat it is the executive that carry these orders effectively means that the

judge is removed from the process of violence that he is managing.

This has important ramifications for legal interpretation in terms of itspractice; is also critique of Dworkins theory of interpretation. Cover is


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asserting that as everyone in the justice system will have different beliefsabout the law/social fact/morality, it is impossib le for Hercules to ensurethat his desired interpretation of the law is carried out in effect. Oneexample of this was the Native Title Amendment Bill, passed in directopposition to the HCAs best interpretation of the law following Wik .Whereas the judiciary mostly concern themselves with moral legal justice(Dworkins thesis) the legislature have an altogether different take on thelaw, as they arent forced to respect past precedent or the moralsembedded within. Similarly with the executive (police), who concernthemselves with upholding the law without necessarily regarding theprinciples that Hercules does. Cover concerns himself with the force thatflows from a legal decision.

In effect, this means that the Judge(s) MAY consider what is the best course of action given the laws moral development (i.e. justice) , BUT if they do so without regard for how the system that they operate inactually implements the new rule, they are flying blind. This is animportant insight, one that is supported and developed by his secondpoint; pain.

The nature of pain, be it through a parking ticket, physical detention oractual torture, precludes any real understanding of the defendant as towhy they are being punished. Wait, I hear you think, sure ly criminalsknow why it is that they are being punished?. Well, yes and no. Whiledefendants might recognise that they have done wrong in the eyes of thelaw, it is very different to admitting that they did wrong and that theydeserve the pain that is about to be dealt to them. They do notunderstand the pain being dealt (for the most part); it seems a graveinjustice. Cover is here critiquing the entire western legal tradition of retributive justicebut he is unwilling to throw the whole system out. This is because he is fundamentally pessimistic about human behaviour.

Cover can be viewed as a protg of Hobbes (for those of you schooled inpolitical philosophy) in that he views human nature as naturally tendingtowards violence, needing strong authority to keep it in check. He usesMilgrams studies on violence and authority to show that we have evolvedto tolerate human to human violence when it serves the Hierarchy. It isfor this reason that Judges dont feel personally responsible for a death


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sent ence, that tram inspectors dont feel personally responsible formaking me go hungry for 2 weeks, that we feel a thrill in seeing a just action hero doing terrible violence to his enemies (movies like payback ,man on fire , kill bill and, if youre twiste d enough, the saw franchise).

It is a fundamentally bleak outlook on human nature that Cover commitshimself to when he says that violence MUST be used by law against thosethat would use it. Cover critiques the system for brutality, but then givesus an equally brutal picture of humanity by which to justify that samesystem. What is the purpose of all this? Thats up for you to decide. Ipersonally have gotten a lot from Covers ideas but clearly I differ onsome pretty fundamental things.

Another GREA T article to read (if you like this guys analysis) is his articleon Nomos and Narrative ; he tackles issues regarding the core andpenumbra far more satisfyingly than Hart or Fuller have.


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Rights Rhys Jaconley

This is a summary of Campbell s summary of rights.

Rights have been used in discourse in a variety of confusing ways. Itshould be made clear from the start that exercising rights is not always

right. That is to say; we assert the existence of rights because the y havea moral basis. It is right to respect life. It is right to uphold public order(collective right). It is right to have a fair trial.

But.

Rights are institutionalised rules. They are typically applied in formalways (divorced from morals in their application). Raz is correct in noting

that we need this for a functioning legal system; if we had a moral debateevery time a formal right was infringed or exercised, the whole systemwould be stymied like a Greek economy (too soon?).

Therefore, rig hts can be used in wrong ways; a person can exercisehis/her right to an apprehended violence order if his/her partner has used

insults or threatening language (this order has a reverse onus of proof,btw). Another (more grounded) example is exercising our negative right

to pollute. In both these cases, the rights exercised were establishedbased on (sound [usually]) moral principle but due to their positive naturecan be divorced from morality in their application i.e. possibly used inimmoral ways.

Rights have become the touchstone of moral legal debate in the last fewdecades. Human rights especially so, but everyday laws are alsoassessed for which rights they promote or infringe. Campbell citesHohfeld for identifying 4 brands of rights

Formal liberty (what we have in the absence of law) Substantive (-ve/+ve rights) Facilitative (power rights to alter our own legal

rights/obligations) Immunity right (to not have facilitative/power rights imposed on

us)These types of rights all operate in different ways, but ultimately theymust be assessed by the merit of their content; a moral judgement.


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Dont be fraid of moral judgements. They good fo you. They what discourse all about. But ya better use ya reason, is all.

Human RightsThe main controversy regarding human rights is whether they areessential to human existence (i.e. right to life and other mostly negativerights) or are they essential to human dignity ? This is still a very bigdebate and difficult to capture in a neat summary. Actually, Campbelldoes a good job. Probs better than me. Go read Campbell if you want agood overview on HRs. Here goes my take

While the essentialist argument may seem compelling at first, if we look

at its pragmatic application, it can result in nasty scenarios. A minimalapproach to human rights MAY guarantee a right to life and (certain)liberties, but many people arguably have this in state like China andZimbabwehardly ideal. Human rights in this way guarantees life but noquality of life; human rights can be upheld in a society that enforcesabject misery.

For human rights to actually deliver a level of humanity, they must try to

uphold the necessities for human dignity . This is also problematic, as it isfar from certain exactly how we achieve human dignity (left says socialwelfare, right says free enterprise), or even whether we really know whathuman nature is like in the first place (again, lots of theories andopinions, few authoritative accounts). The problem then becomes which rights to includ e as human rights: they must be both universal to allhuman beings and important to achieving human dignity. I am suremany of you have your own opinions on what these things might be, andyou should argue for this rather than accept my pseudocentrist leftybullshit as gospel. It is much more convincing when you argue for whatyou believe in.

Pogge

Pogges main deal is global injustice. Many people bem oan the currentstate of affairs, but Pogge is quite clever in his argumentation in that heconvincingly puts the blame on western nations and by implication we,
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the people that comprise those nations. What a finger-pointing littlekraut.

The way he does this is by firm reliance on developing nations citizenshaving the (negative) right to operate economically without interferencefrom other actors. Anyone who is schooled on WTO and IMF policy knowsby now that the whole shebang is geared towards corporate (who areusually based in, you guessed it, developed nations) interests and notnecessarily on the stable political, social and economic growth that isnecessary for a countrys climb out of poverty. By not changing theseinstitutions that we form a directing (WRONG WORD) part of, we areimplicitly endorsing the injustice generated by the global economic order.

So rather than giving world vision five bucks when you can spare it, whatwe SHOULD be doing (according to Pogge) is campaigning for a levelplaying field for developing nations.

He also ties it to the domestic level of the developing countriesthemselves (not being a Marxist, its not all about victimhood :P). Due tothe unstable political nature of many of these countries, the ruling elite (often warlords or one-party officials) have a massive incentive to exploit

the chaos for personal profit and to tighten their political grip on thenations they are running. While the global institutional order SHOULD beconcerned with implementing accountable governance, the often find thatdictators and despots pay their bills just as well (and some times better)than democratic polities. And so the injustice is maintained.

Pogge is careful to frame his entire debate in terms of negative duties (soas to keep the western politico-philosophical tradition onside), but theimplication that we as western citizens should actively campaign arguablycrosses into positive territory.

GonzalesGonales basically makes the exact same arguments as Pogge; that theinstitutional politico-economic order is unjust, that that structuraladjustments should be made to alleviate poverty. The key difference ishow she frames the injustice. While Pogge put it t o us that it is our dutynot to fuck others over with our economic institutions, Gonzales assertsthat there is a human right to food (life). This is problematic, as western


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philosophy has traditionally been resistant to a firm commitment topositive values such as the duty to feed others. Kant made this argumentwell by stating that by putting others before ourselves (or vice versa) weare treating people as means rather than ends . This is morally wrong outand out; people must be treated as ends in themselves, if not, Hitlerhappens. Positive duties imply an obligation to others, often to thedetriment of the right ower (who probably has enough problems already).

DouzinasBoss alert. Douzinas is highly critical of what the institution of humanrights has come to represent in reality; a score of atrocities and book

upon book of meaningless jargon. He agrees with Pogge and Gonzalesthat the current institutional order is fucked, but rejects the idea thatmore rules will fix that.

He [=points to the currently codified human rights (UN) and the fact thatthey seem to be largely optional , depending on what their nationalinterest (in the international sense) is deemed to be. He uses a numberof historical examples to back this up, but it isnt difficul t to see them.

One glaring example is the lack of prevention of the Rwanda genocide;something many people say would never happened had there been oil inRwanda (thusly making it in US/anyones national interests tocontroldare I say Iraq?). However, th is is perhaps not a good exampleas Douzinas asserts that in an age where civilian casualties dwarf combatcasualties, any kind of war waged on humanitarian grounds is completelyhypocritical.

A good example of governments hypocritically advocating rights can befound here:http://www.youtube.com/watch?v=S880UldxB1o&feature=youtu.be

If youd like more info/theories on why this is so, I suggest you googleinternational realism.

*Personal insight* (please dont all use this on the exam; tr y to come toyour own conclusions) While Douzinas agrees with Pogge and Gonzales
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that there is massive institutional global injustice being perpetrated, onemajor criticism that Douzinas would make of his institutionalistcompatriots is that they remain advocating the perpetrating institution i.e.the current world order. The rights that Pogge and Gonzales areadvocating so ardently ALREADY exist in the UN declaration; theymaintain that institutional adjustments (i.e. more rules) will correct theinjustice. Douzinas is much more realistic (imo) in recognising that thesekind of adjustments will either a) never happen or b) never have any

practical effect, as it is the very nature of the current world order topromote these types of injustices. By advocating mere modifications to anunjust system, Pogge and Gonzales are being either hypocritical orunrealistic. While Douzinas only hints at a possible answer (Viva la

revolucin!), his analysis of the impossibility of massive institutionalchange is compelling.


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Justice Rhys Jaconley

Gardner links law to justice (public legitimacy) justice is a moral virtue (may need to explain) the moral by which law is scrutinised (rather than any other

morals) morals justify reasoning clash of morals (loyalty vs honesty) eg justcice concerned with proportionality of weight given to

different morals

Gardener is a good entry-level justice guy. He is not without his flaws, so

lets get stuck in and see what hes about. Listen up.

Gardener starts off by showing us that there is a necessary connectionbetween law and justice; if a law isnt just, it just dont feel right. This isbecause justice is what law is all about; if there aint no justice, there isno point to the law.

So what is justice? One of the saddest things in this course imo is that

there is only one class (sort of) decicated to this question. As lawyers,this should be central to an understanding of the law. But I digress.

Justice is a moral virtue: we recognise it as a good thing withoutnecessary recourse to reason to justify it. Justice is good. Full stop. Whatwe actually mean when we say justice can vary greatly however, andtherein lies the problem. Many debates about the nature of justice arereally debates about entirely different moral values, such as liberty,desert and practicality. For more on the nature of rational moral debates(helpful!), check this!

Gardener establishes that morals often conflict over what reasoning tellsus is the right cause of ac tion (his example of honesty v loyalty ). What

justice does is concern itself with the proportionality of the weight givento these morals when they conflict; a just course of action will negotiatea compromise between the morals in a balanced (i.e. impartial) way.
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He then goes on to say that there are two ways that justice does this: byconcerning itself with

distributive justice ando this kind of justice concerns itself with treating people

equally, and dividing up goods or ills in a proper or justway (geometric)

corrective justiceo this concerns allocating goods and ills in name of

restoring the status quo ante/alter . It is effectivelyconcerned with allocating punishment (although in privatelaw, remedy) and, for me, is more controversial thanGardner would have us believe. If this piques your interest,

I suggest googling the difference between retributive andrestorative justice.

Justice therefore ha s no moral content on its own; it is a reflexive moraltool that allows us to articulate competing moral principles in a pragmaticand considered way. Whereas moral people will be committed to theirideals (often in non-pragmatic ways; see Socialist Alliance and Anti-Abortionists), just people will concern themselves with how the morals

principles play out in reality, and the effects of this. Better to be just thanmoral, it seems.

One strong criticism that Gardner levels at Hart is that, in Harts assertionthat a rules (no formal content) comprise a legal system (DOES haveformal content) , Hart underestimates the importance of the Courts role informing a legal system. A legal system with no court (method of adjudication) is no legal system, and while rules may be devoid of content, courts continually strive foe their conception of just law. This isimportant. The role of adjudicators is much larger than Hart would haveus believe, and explains why Dworkin just will not shut up about it.

This is all I have time for on Gardner. Any inclusions/modifications thatpeople think are important are VERY WELCOME [email protected]

Douzinas & Geary injustice
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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o approach traditionally as absence of justice i.e. evil isabsence of good; worng

conflict of morals in pursuing justice has stopped us fromidentifying & rejecting injustice

o link to Aristotelian insight injustice fe;t by victims (hard to identify if not felt) st rong criticism of western philosphys quest for truth over

moral/pilotically pragmatic soloutionso many justice systems recognise only certain kinds of

injustice injustice doesnt call for dialogue, but for action (can link to

Covers insights on pain)

And were back to Douzinas again. Like many post -Marxists, he doesnthave any specific theory to out forward, just criticises current ones. Butout of criticism we can further our understanding of whether the theory is

right or not, so lets get amongst it.

D&G start with the idea that Injustice is actually a far more useful moral-legal concept that justice. Injustice is readily recognisable, and felt

keenly by its victims. There has been a long and misguided tradition of defining injustice as the absence of justice. The problem with thisapproach is that NO ONE can agree on what exactly justice is. Everyphilosopher/theorist has tried to push their own version of justice; fromAristotle v Plato to Rawls v Nozick. There is still no agreement, and whilemany say that we can agree, I think that we Kant.

D&G identify injsutice as a more fruitful mode of identifying the what andthe how a legal system should orient itself, rather than chasing afterUtopia. Most legal system chase the ideal of justice as set out in a) theconstitution and b) current society; projecting a vision onto everydaylegal conflicts. D&G may be right in asserting that as not everyone will beable to agree on the exact brand of justice (distributive /retributive

/restorative/ utilitarian), courts should orient themselves towardsminimising injustice rather than dealing justice (as if it were a finiteresource).


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Critical in D&Gs analysis is a firm rejection of corrective/retributive justice, as this kind of justice is based on a winner/loser model, which oneparty is almost certainly going to regard as unjust (often rightly so;anyone still ok with the [old] decision that ruled that wives cannot chargehusbands for rape?). This is controversial; it implies that offenders shouldbe rehabilitated rather than punished; justice no longer becomes aboutblame and punishment, a very hard idea to incorporate). We can link thisback to Covers insights into the nature of pain; pain precludesunderstanding. If we want to remedy injustice by making peopleunderstand that their actions were unjust, we must do away with pain(punishment) in our legal system.

Thats all I got for D&G. I agree with a lot of what they say, so pleasetake this analysis with a grain of salt (its always easier to argue for whatyou believe in).


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The Good Lawyer Rhys Jaconley

I ran outta time for thishopefully YOU can [email protected]
mailto:[email protected]:[email protected]:[email protected]


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Winning Legal Theory Rhys Jaconley

So here is what I THINK you need to win legal theory. It is NOT aboutmemorising the theorists and theories. It is NOT about understandingevery nuance of the arguments (although this is also important).

What you have to do is DECIDE what YOU believe.

This isnt hard. All the theories presented here have real worldapplication; they speak to the core of the law that we are studying. Ideasof justice and how we achieve it is key to the development and exerciseof the law.

Not only that, but it makes law MUCH easier to study if you have an

opinion about what it is and why it does what it does. I have found thatboring-ass classes like Property and Contracts have transformedthemselves from a long list of facts, names and rules into a intertwiningnarrative about Justice and the laws attempt to achieve it. Property hasbecome the justice story of material desert; who gets what and why .Contracts has assumed a similar shape, but one of self realisation; whatare the rules that govern the behaviour of individuals that have decidedto legally cooperate? This is nerdy and rewarding stuff.

So please, dont reject legal theory. Engage. Get something out of it. Because we are forking out enough WITHOUT writing off our classes

value to us.

Lastly, dont stress too hard. You could be dead tomorrow.
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how to win legal theory (final draft)

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