Intro

First, an overview. Overviews are important.

Rhys Jaconley

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

Jurisprudence

Rhys Jaconley

Ok so the intro was just really an intro to an intro. LOL. Dont worry, Ill tell you how to get good marks on the exam. This is all-important. Approaching Legal Theory/Jurisprudence How one approaches Jurisprudence affects how much sense it makes what you get out of it whether you view it as practical or purely theoretical whether or not you actually end up engaging properly with the materials That last point is important. What we are assessed on is our level of Critical Engagement with the theories presented to us. This means that if we want to understand legal theory (and get the resulting kickass mark) we need to approach it properly. How not to approach it Legal theory cannot be approached the way that other law subjects are typically approached. The typical approach is usually to learn the principles in the cases by rote learn the cases main points of contention by rote learn the significant factual considerations by rote try and get a feel for how all this disparate information hangs together. The reason we usually study this way is that we are chasing high marks. We think that an exam is a test of knowledge, so we do our best to get and retain all the knowledge so that we may show how much we know come exam time. This is the way most people study. There is a reason for this, but that isnt relevant to legal theory and Im wary of staying on topic. The problem with this style of study is that it often fails to convey understanding.

Jurisprudence

Rhys Jaconley

These are 2 different approaches to education: knowledge and understanding. Both have their strong points but trust me when I say that Law is generally easier if you try and gain an understanding, rather than knowledge of it. If youd like to understand the difference more fully, do your own research. A good place to start (http://www.kmworld.com/Articles/Column/DavidWeinberger/Knowledge-and-understanding--53115.aspx)

If youre still with me, then were ready foooooooor: The Right way to approach legal theory As weve established, trying to memorise all the different facts and theories isnt a very productive way of engaging with legal theory. This is because many of the theories that we discuss are just that: theories. They do not necessarily claim to be true, in the sense that it is true that if there is offer/acceptance and consideration, you have a contract. Theories are inherently subjective as they offer as a way of explaining things. If a theory asserts that it is true, it becomes doctrine. Legal theory is interested inyou guessed ittheories. In terms of what this means for you as a legal theory student, the implications are actually quite liberating. You can choose to accept, or reject, legal theories. This is very important. Normally we are told we need to know something well to pass an exam. This isnt the case in legal theory. What you need to know is which theory is more compelling at explaining what it is trying to explain. The way we go about this is critical analysis. Critical analysis has a bad rep at the moment; its often lumped with the weed smoking arts students and wanker intellectuals that have nothing meaningful to say. But it IS meaningful. It allows us to critique an assertion (be of it legal, theoretical and sometimes even factual in nature) and get closer to a concept of the truth. It is a tool, one that we as lawyers need to hone if we want to excel in our chosen careers. When employing critical analysis, there are a few rules. 1. Assess the assertion for its strengths and weaknesses 2. Compare to any competing assertions that say something different about the same topic area 3. See where the strong/weak points are between the two (or more) theories

Jurisprudence

Rhys Jaconley

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

Positivism

Rhys Jaconley

Heres the thing about positivism: its a mostly descriptive account of the law. There is much confusion as to what positivism actually means or conveys. Again, many people tend to try and engage with these theories with an exam winning mindset. You MIGHT win exams, but youll miss the whole point of the theory. Bad law student, bad. So here goes my 2c Positivism is like an anthropological account of what the law is. It is descriptive, but doesnt offer much explanation. Positivists identify the law by reference to internal criteria, such as is it a rule? do people obey it? what is the relationship between conformity and the law in question? Is there an identifiable sovereign? Where do we locate authority for the law (if not in its content)? Positivists assert that the law is a social fact i.e. devoid of moral content. THIS DOES NOT MEAN that positivists have no place for morals in their conceptualisation of law & society. What it DOES mean is that positivists view law as a set of rules that can be measured objectively (by reference to peoples conduct in relation to these rules). The have little or nothing to say about whether a law is right or just. H.L.A. Hart While we started our studies with Hart, he is really coming off the back of a bandwagon that had been developing for hundreds of years (same goes for Fuller). The development of positivist legal theory had gotten stuck in trying to answer the question: why do people obey the law (given that this theory rejects a moral evaluation of the law). Previous theorists had attempted to explain obeying the law in terms of its consequences i.e. if you fuck with the law, the law fucks with you. However, this wasnt really satisfying in explaining compliance, as there are MANY situations in society where it is clear that there will be no legal repercussions from breaking the law, yet people still comply. How do we explain this? Harts answer was to frame law as a socially enforced practice. This makes a lot of sense. When we break the law, we may immediately look to see if there was a policeman or speed camera recording the incident. But we also look to see if anyone else saw.

Positivism

Rhys Jaconley

We are socialised to accept compliance with the law, and this practice is upheld by other members in society. From our parents to our teachers to our fellow citizens, recognising and complying with the law is drilled into us; it is a social fact. The way this compliance comes about is a union of primary and secondary rules. The primary rule that determines compliance is the seriousness of the social pressure. While I might run a red light and get a $300 fine (harsh penalty), defecating in the middle of my contract law class is inconsiderable due to the seriousness of the social pressure prohibiting this act. Secondary rules also influence whether or not a law is complied with (whether they are truly considered law); Hart identifies two but doesnt declare this list as necessarily comprehensive. The first is that the rule (law) in question is necessary for some desirable end of the society; speed limits to reduce accidents. The second is that there is usually a mediation between the desires of the individual and the desires of the collective, otherwise there would be no need for the law in the first place. A law enforcing everyone to work would be absurd, as it is already in everyones interests to do so. It should be noted that Hart is on thin ice with his first secondary rule (whew!). It implies that there is a value in the law itself, using this value to justify and explain compliance. But Hart attempts to reject values within law; his is a purely objective study of the law. By using the idea of the phrased necessary to social life or highly prized feature of it flirts with naturalism. But Hart wont go all the wayhe coquettishly admits that the law is devoid of values, then bats his eyelashes at a apparently moral reason for following the law (aims of society). Hart is a pricktease. This is a weakness in his theory, and deserves exploration by those that feel like having their way with the positivist doctrine. With compliance (the internal component of law) explained, Hart moves on to what is considered law (i.e. external). He coined the term rule of recognition to describe the process by which any given society recognises a law as legitimate. In some societies, whatever the chieftain says will be law. In others, it was whatever the citizens reached consensus on (i.e. ancient Greece). In our society, it is whatever bill that is passed by both houses of parliament, or whatever ratio is issued from a superior common law court.

Positivism

Rhys Jaconley

The secondary rules, in their totality, make up the rule of recognition; a mix of procedural requirements as well as observed compliance that draw the lines between custom, law, and mere technicality. It is important to repeat that Hart makes no judgement whatsoever as to the legitimacy of a law outside of the rule of recognition. His is a purely descriptive account, and we can take from it what we may. Another important point on the rule of recognition is that it is an officials account of law. The rule of recognition may not be shared by the wider community. However, it will be recognised by the lawyers, the judges, the policeman, the parliamentarian and the bureaucrat, and that is what matters. It is these people that determine the form, content and execution of the law. Hart isnt committed to the view that law is a good thing in and of itself. He merely asserts that it is present throughout all structured societies. Part of the problem of the debate between Hart and Fuller is that they fail to agree on a basic point: that morality is important for keeping the law in check. Rather than search for these points in common, they shout each other down, insisting that the other is right in his conception of the law. But they arent necessarily mutually exclusive. One can use and apply a positivistic, Hartian conception of the law in identifying what the law is, whilst using a Fullerian moral account of what the law should be. But were getting ahead of ourselves again. Raz Apart from having a badass name, Raz is also a bit revolutionary as he is a positivist with something meaningful to say about the operation of the law. Raz concerns himself with the rule of law; different from the law itself. Razs central argument lies in the fact that for a law to be effective, people must obey it. This is indisputable. A law that no-one or close to no-one follows is no law at all (arguably laws that criminalise the use of marijuana fall into this category; a less controversial example is that of jaywalking). If no-one obeys it, it is an ineffective law (or if one takes a strictly empirical approach, no law at all). Raz also has a few things say about procedure (not just compliance). The rules all relate to the effectiveness of the law, not whether the law is considered to be good or not. Prospective/Retroactive

Positivism

Rhys Jaconley

Laws should be prospective, i.e. forward looking. They should articulate what they are designed to achieve, once the law is passed. Retroactive law is ineffective law, as it (apart from moral ideas of justice) is ineffective in preventing the conduct it is designed to prohibit. Whilst retroactive law may serve to criminalise/jail a perceived offender, the law will better achieve its aims if it clearly illustrates how citizens should conduct themselves in the future Stable If laws are changed often, citizens will find compliance difficult as there will be uncertainty as to what the law is at any given point in time. More importantly, citizens wont be able to conduct themselves with any sense of legal certainty in making future plans, as the law could change at any time. This was one of the big sticking points of the recently passed carbon tax; businesses couldnt engage in contracts (and were stifled in their operations) as they had no idea whether their ventures would be profitable under the new system. Open, Clear and General rules when Making Law Here Raz asserts that while law may be limitless in its complexity in its pursuit of the secondary rule of the laws aims, it should be guided by underlying principles. Example: while it may seem discriminatory, complex (and even unjust) that indigenous citizens get larger welfare payouts than nonindigenous citizens, this (complex and seemingly contradictory) rule is guided by the underlying principle of distributive justice based on need, where the asserted social fact is that indigenous needs arent met as easily by Australian society and therefore deserve extra monetary assistance. Whatever you think of the argument, the rule is guided by a general principle that can help the citizenry engage with and gain a conception of the law and its functions. *comment* Here Raz is playing the same game as Hart (see above), flirting with Natural Law theory. He is quick to state that the aims of the law may be whatever the society deems worthy, but relies on the existence of general principles (morals?) to guide their formation. He is right in asserting that this is necessary for good rule of law, but sounds quite Fullerian; this argument closely resembles Fullers thesis on good order. Independent Judiciary See legal theory/con law for why this is important. If you dont know by now I really cant help you. Principles of Natural Justice must be observed

Positivism

Rhys Jaconley

See the comment above; he argues for a fair/open hearing, absence of bias etc. *comment* it is arguable that this isnt necessary for rule of law i.e. the effectiveness of law. I would argue that it is easier to enforce compliance when rulings are arbitrary, closed and unfair. This creates an aura of fear regarding public practice, and citizens will be less willing to step out of line. Please dont plagiarise this idea come exam time Courts should have review powers No comment Courts should be easily accessible This relates to what we studies in DR. Yes, we studied something in DR. Access to justice relates to the cost/wait time/accuracy of court decisions. An effective system should excel in these areas. The discretion of crime-preventing agencies should not be allowed to pervert the law See: http://www.youtube.com/watch?v=JrRZBVqioeU Raz admits that principles 4 to 8 are there to avoid the perversion of the law by those in authority. Raz clearly states that while most societies regard law to be necessary, law by virtue of its nature (Cover has some great insights here) can lead to horrible, horrible things. Dare I cry Nazi? Even the requirement that one mustnt walk backwards eating peanuts at a concert in Calafornia seems, to me, a step too far. So what is Raz on about? While a positivist in theory, he seems to be implying that the knife that is law, for it to be sharp, must also not be a cudgel. Or a gas chamber. He is saying that law, to fulfil its function effectively, must be ordered well. And this is a very fullerian argument. He tries to stay separate from morality by invoking the principle that law in this way merely respects the citizens autonomy (by being clear and effectiveif you choose to go on a killing spree the next time your team loses, the law respects your implicit choice to go straight to jail). However, the notion of respect for autonomy is an inherently moral argument. I didnt understand exactly what Raz was trying to do here; any insight would be more than welcome.

Positivism

Rhys Jaconley

Well thats it for me on Raz and Positivisim. Raz articulates quite nicely how the law can be effective (and the importance of this) without a clearly necessary link to the morality of law (although imo he is less than successful in this enterprise). Positivism gives us the tools to identify law and the effectiveness on it. If we want to know about whether a law is just, we need Natural Law theory (yay!). Im letting everyone know now that I have a bias in favour of this theory; to me the most important question that we can ask about law as lawyers is whether it is just.

Natural Law

00:35

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

Natural Law

00:35

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

Natural Law

00:35

So thats more or less Finnis in a nutshell. Laws connected to fundamental and universal values, if not connected or some kind of compromise, then not legal. The weighting we give these moral values in the law determines the laws form and content, but that is a story for another day. Fuller Fuller, unlike Finnis, doesnt have a whole lot to say about the justification for law; he calls this external morality and doesnt theorise about it (we kinda have enough of those already). Fuller is concerned with the internal morality of law; of the morality that plays out within a positivist conception of law. So I realise your head is probably hurting right about now. Wtf is this guy on (about)?, I hear you asking. Ill do my best to explain (my take) on Fuller. Fuller is about good order. Good order refers to how the law should be structured so as to guide it in the best direction (as well as execution). The principles that good order/law NEEDS to be a real legal system are (according to Fuller): comprised of rules, that are: o accessible o not contradictory o possible to comply with o stable through time o followed by officials Fuller is VERY similar to Raz in that he primarily concerns himself with the operation rather than the description/justification of law. This is why the Hart/Fuller debate seems like a false one. Its because it is. Theyre talking about different things. So heres an analogy for you. Fuller is a Jedi. Yes. A Jedi. And not just any Jedi: Fuller is Obi-wan-Kenobi (post episode 3). Fuller sees the evil around him that law masquerading as good order has come to wreak. The empire is positivist: it sees law as divorced from morality (justice); the law is whatever the Emperor Hart says it is (as executed by Darth Raz). The bureaucrats working for the Empire (also positivists) insist that it is their duty to uphold the rule of recognition regardless of its content, resulting in intergalactic injustice.

Natural Law

00:35

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