Legal Theory Exam PDF

John Austin Theory Further reading, The Stanford Encyclopedia (Brian Bix)/Coleman and Leibler ○ Austin was the first writer to approach legal theory analytically ○ Austin views law as being ‘imperium orientated’ - viewing law as mostly the rules imposed from above from certain...

John Austin Theory Further reading, The Stanford Encyclopedia (Brian Bix)/Coleman and Leibler ○ Austin was the first writer to approach legal theory analytically ○ Austin views law as being ‘imperium orientated’ - viewing law as mostly the rules imposed from above from certain authorised sources ○ ‘Legal positivism asserts that it is both possible and valuable to have a morally neutral descriptive theory of law.’ Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive approach (understanding law without involving moral judgments, in a neutral way) is is valuable on its own and serves as a necessary step before making any criticisms. ‘The existence of law is one thing; its merit or demerit is another’ ○ Definition of law: Laws are commands of a sovereign that are habitually obeyed (the command model) → ‘Law is the order of a sovereign backed by a threat of sanction in the event of noncompliance’ → a norm is a law, only if it is the command of a sovereign and so on Austin’s account legality is determined by its source that is, the will or command of a sovereign and not its substantive merits. Commands involve an expressed wish that something be done, combined with a willingness and ability to impose ‘an evil’ if that wish is not complied with. Rules are general commands/courses of conduct (applying generally to a class), as contrasted with specific or individual commands (‘drink wine today’) Sovereign is defined as a person (or body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other early person or institution. Using this criteria, Austin separated law and legal rules from religion, morality, convention and custom. However, also excluded from this were customary law (except to the extent that the sovereign had, directly, or indirectly, adopted such customs of law’ ○ Therefore, Austin’s approach of whether something is or is not law, depends on an empirical investigation of power and not morality. Austin is not arguing that law should not be moral, he is merely pointing out that there is much that is law that is not moral. ○ Why Would agents comply with the law demands? What explains the normative force? It is the threat of sanction that gives agents a reason to act and thus the sanction accounts for law’s normativity Critique:  Further reading, The Stanford Encyclopedia (Brian Bix) ○ Hard to identify a sovereign + focus on sovereign makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of ‘habit of obedience’ that Austin sets as a criterion for a system’s rule-maker. Hart ○ There are varieties of law such as conferring legal powers to adjudicate or legislate (judges and law-makers) which cannot be construed as orders backed by threat I.e. not all laws are commands backed by threats but some rather expand liberty (they are what Hart calls power conferring - expanding rather than contracting th scope of individual freedom by giving effect or force to personal choices) If not all laws are commands backed by threats then the existence of sanctions cannot be the source of law’s normativity, for laws that confer power are also presumably authoritative though they do not impose sanctions. ○ Idea of a sovereign that is habitually obeyed and necessarily exempt from all legal limitation fails to account for the continuity of legislative authority characteristic of a modern legal system. It also doesn’t fit with how power works currently given that in modern democratic societies, power isn’t held by one person or authority alone (can parallel this to the three branches of government in australia) For example, Hart notes that by treating the sovereign as a person, austin’s account is unable to explain other salient features of law, namely the fact that legal rules remain valid or binding even after a sovereign dies or is otherwise disempowered (when they no longer enjoy the habit of obedience) Also fails to explain the fact that the command of a new ‘sovereign’ can be law even though she has not yet secured a habit of obedience To remedy this failing, Hart reformulates Austin's conception of the sovereign so that the sovereign is not a person but an office. The office is an institution created by rules and the rules that create the office are not orders backed by threats but rather rules that empower or authorise certain actions by public officials. ○ There are also legal rules which do not originate from explicit command by a sovereign but develop in other ways e.g. customary law or common law ○ People do feel obligated to do things even without a threat of official sanction Dworkin ○ Dworkin argues that in complex societies, the idea that there is a group or institution that has ultimate control over all other groups doesn’t hold, as political control in modern society is often pluralistic and shifting  H.L.A Hart- Legal positivist Theory Distinguishes between being obliged and having an obligation. ○ Obliged to do something = a statement about the beliefs and motives with which an action was done Hart views law as a system of social rules where ‘Rules are conceived and spoken of as imposing an obligation when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.’ There is an insistence on importance or seriousness of social pressure behind the rules and that is the primary factor determining whether they are thought of as giving rise to obligations. ○ Hart believes that such rules may be customary in origin. ○ He argues that there may be no centrally organised system of punishment for breach of the rule, rather the social pressure may take only the form of general hostile or critical reaction which may stop short of physical sanctions. It may also be limited to verbal manifestations of disapproval, or depend on feelings of shame,remorse and guilt. When the pressure is dependent on the feelings of shame, remorse and guilt we can classify the rule as part of the morality of the social group and the obligation under the rules as moral obligation. ○ Physical sanctions may be prominent or usual among the forms of pressure, even though they are not administered by officials but rather the community (primitive or rudimentary form of law) Two other characteristics of obligations ○ Firstly, The rules supported by the pressure are thought to be important ‘because they are believed to be necessary to the maintenance of social life or some highly prized feature of it’ ○ Secondly, it is generally recognised that the conduct required by these rules may, while benefit others, conflict with what the person who owes the duty may wish to do → there involves sacrifice or renunciation (‘the social pressure appears as a chain binding those who have obligations so that they are not free to do what they want.’ Hart also posits that there is an ‘external’ and ‘internal’ point of view in regards to rules ○ External point of view: to be concerned with the rules merely as an observer who does not himself accept them. From this point of view The observer focuses on patterns of behaviour - regular compliance with rules and the associated reactions when rules are broken The rules are seen as predictive tools, meaning the observer uses them to anticipate behaviour, such as predicting punishment following a rule violation This may enable him to live without unpleasant consequences The observer does not internalise the rules or see them as obligatory standards, rules or duty instead, they treat the ‘rules’ as descriptions of regular conduct and its consequences. ○ Internal point of view: to be concerned with the rules as a member of the group which accepts and uses them as guides to conduct Distinguishes between two different types of rules Primary = humans have fixed duties to either do something or abstain from certain actions → they impose duties that set standards Hart argues that if a society is to live by primary rules alone, there are certain conditions which must clearly be satisfied and either expand or limit liberty ○ Firstly, the rules must contain some form of restriction on the free use of violence, theft and deception if they are to coexist in close proximity to another ○ Secondly, those who accept the rules via an external point of view cannot be more than a minority for otherwise those who reject the rules would have too little social pressure to fear Hart argues therefore that only a small community closely knit by ties of kinship, common sentiment and belief, and placed in a stable environment could live successfully with primary rules. Defects in a simple social structure of primary rules ○ Uncertainty: Because primary rules resemble rules of etiquette if doubt arises as to what the rules are or to their precise scope, there will be no procedure for settling the debate by reference to an authoritative text or to an official whose declarations are authoritative. Therefore, Hart points out that a defect in the simple social structure of primary rules is its uncertainty. ○ Static character of the rules: The only mode of change in the rules will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual and then obligatory and the converse process of decay, when deviations, once severely dealt with, are first tolerated and then pass unnoticed. There will be no means of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones. My Critique of this: our legal system is quite static - takes a long time to effect change in our Parliamentary system. Case law also takes longer to change ○ Inefficiency of the diffuse social pressure by which the rules are maintained: disputes as to whether an admitted rule has or has not been violated will occur if there is no agency empowered to ascertain finally and authoritatively the fact of violation. Further, the lack of final and authoritative determinations means that punishments for violation of the rules are left to the individuals affected or to the group at large → may lead to waste of time due to the group’s unorganised efforts to catch and punish offenders + vendettas Secondary rules: secondary rules specify the ways in which the primary rules may be ‘conclusively ascertained, introduced, eliminated, varied and the fact of their violation conclusively determined.’ → they confer powers Hart considers secondary rules as the remedy for each of the defects mentioned above and as a step from the pre-legal into the legal world. ○ In regards to remedy for the uncertainty of the regime of primary rules Hart argues the remedy is the introduction of a ‘rule of recognition’ - it is not a power conferring rule that sets out the conditions that must be satisfied in order for a norm to count as part of a community’s law. If a proposed rule meets these criteria, it is conclusively recognised as a rule of the group, one that should be supported by the groups social pressure. The rule that tells you what other rules are.  The rule of recognition sets out the conditions that must be satisfied in order for a norm to count as valid law within a legal system. Rule of recognition = ‘specifies the conditions that must be satisfied for a rule that imposes obligations to be a legal rule.’ In a developed legal system the rules of recognition identify valid rules by reference to a general characteristic possessed by the primary rules e.g. being enacted by a specific body ○ In regards to the remedy for the static quality of the regime of primary rules Hart argues the remedy is the introduction of ‘rules of change’ A rule that empowers an individual or body to introduce new primary rules, or to eliminate old rules Essentially rules that create a power to legislate ○ In regards to the remedy for the inefficiency of diffused social pressure Hart argues the remedy is secondary rules empowering individuals to make authoritative determinations of the question, whether on a particular occasion, a primary rule has been broken. He refers to these secondary rules as ‘rules of adjudication’ These rules will: Identify the individuals who are to adjudicate Define the procedure to be followed Rule of adjudication = ‘Secondary rules empowering individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.’ So basically conferring judicial powers and concept of court, jurisdiction and judgment → creating a power to adjudicate How is the rule of recognition identified? The rule of recognition is identified through social practice. It is not written down or formally codified but is understood and followed by those operating within the legal system, such as officials such as judges. Its existence is demonstrated by the way legal authorities: Accept and apply certain criteria when determining the validity of laws. Refer to documents like constitutions, statutes, or case law as authoritative. ○ For example, in a simple legal system, the rule of recognition might be based on the officials acceptance of certain documents or customary practices as the ultimate source of law. In complex systems, it might involve hierarchical criteria (e.g., statutes taking precedence over custom). What does Hart say are the two minimum conditions necessary and sufficient for the existence of a legal system? Hart maintains that wherever there is law, there are primary rules that impose obligations and a rule of recognition that specifies the conditions that must be satisfied for a rule that imposes obligations to be a legal rule. Minimum conditions ○ Rule of Recognition is Accepted by Officials (secondary rule criteria): The rule of recognition, which identifies what counts as valid law in the system, must be accepted by legal officials (e.g., judges, lawmakers) from the internal point of view. This means officials must adopt a  critical reflective attitude toward the rule of recognition and use it as the standard for evaluating and applying laws. Do not need the majority of ordinary citizens to take the internal pov. For Hart, we ought to have the kind of theory that explains the normative of law that explains the internal point of view of law (why a person takes that perspective). ○ General Compliance with Primary Rules by Citizens: The majority of citizens must generally obey the primary rules of obligation (rules that impose duties, such as prohibitions against theft or violence). This compliance does not require an internal acceptance of the rules; citizens may follow the rules out of fear of sanctions or habit rather than a reflective attitude toward their validity. Critique Coleman and Leiter argue that legal rules are enacted to promote social practices where none exist, or to mediate between conflicting social practices or even to eliminate an undesirable but widespread social practice. Therefore, in each case, the laws validity will not depend on the existence of a corresponding social practice and so being a social rule then is not a necessary condition of legal validity. They argue therefore that if law is authoritative it cannot be because all laws are social rules. ○ To remedy this, Hart suggests that the rule of recognition is a social rule whose authority depends on its being accepted from the internal point of view by the relevant officials that is, judges. Therefore, rules subordinate to the rule of recognition may or may not be social rules. Their authority derives from their being valid under the rule of law. However, Coleman and Leiter suggest there are two problems with this Firstly, Coleman and Leiter argue that even if we accept that the rule of recognition is authoritative in virtue of its being a social rule, it does not follow that rules valid under the rule of recognition are authoritative in virtue of their validity under the rule of recognition as as the rule of recognition applies only to the behaviour of relevant officials, such as judges. ‘It provides officials with very [specific] reasons for acting - applying criteria to determine whether a rule or action is legally valid. It does not apply to whether ordinary citizens should comply with the legal rules. Secondly, the authority of the rule of recognition does not derive from it being a social rule - that is being accepted from an internal point of view. Acceptance from an internal point of view is expressed through the bejaviour of appealing to the rule as grounds of criticism and justification.. ‘The claim that the authority of a social rule derives from the internal point of view thus amounts to the view that what makes a norm reason giving is the fact that the majority of individuals treat it as such.’ But the authority of a rule (its reason-giving capacity) cannot be grounded in the mere fact that individuals treat it as reason giving. ○ Why? This creates a circular argument: people regard the rule as authoritative because it is treated as such by the majority. But this fails to provide an independent justification for why the rule should be seen as reason-giving in the first place. Therefore they provide their own justification - convergent behaviour  ○ Prudent reason (self-interest) Suppose Newt is motivated by self-interest. If everyone drives on the right side of the road, Newt has a practical reason to do the same—to avoid accidents and ensure smooth coordination. In this case, the convergent behavior of others gives Newt a reason to follow suit because it aligns with his interests to coordinate his actions with theirs. ○ Instrumental Moral Reason (Uncertainty about Morality) Suppose Emma wants to do what is morally right but isn’t sure what that is. If Emma believes that others are also trying to act morally, their behavior can serve as a guide. By following what others do, Emma increases her chances of doing the right thing, assuming (perhaps incorrectly) that their actions align with morality. Here, the convergent behavior of others provides Emma with a moral reason to treat the law as authoritative, not for coordination but as a practical aid to moral decision-making. ○ Therefore they argue that convergent behaviour is the key to understanding the authority of the rule of recognition e.g. tio coordinate their behaviour with other officials provides particular officials with a compelling reason to do what others do. Authority of law derived from? What is law? Austin Reliance on sanctions as a source of law’s authority Law is a command by a sovereign that is habitually obeyed → The legal rules of the community are the general commands the sovereign has deployed Hart Law consists of social rules. Social rules have both normative and descriptive ‘The law of a community is a set of special rules used dimensions. Rather, than being mere descriptions of what individuals are in the habit by the community directly or indirectly for the of doing, rules provide agents with reasons for doing what they do and with grounds purpose of determining which behaviour will be for criticizing those who fail to follow suit. Rules, when accepted from an ‘internal punished or coerced by the public power’ point of view’ provide reasons for acting apart from mere reasons of prudence that threats supply. Social rules are therefore normative in a way that habits of obedience Legal positivism argues that rules can be identified by are not. If law is normative, it is because it consists in rules (threats by contrast, can their pedigree i,e how they are created or recognised only explain the sense in which one feels obliged to comply, not the sense in which for examination (e.g. created by a lawmaking one feels one has an obligation of obedience). authority) rather than their moral or substantive content. Hart argues that a rule differs from an order by being normative (setting a standard of behaviour). A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule, and that authority can only  come from another rule which is also binding. ‘i) A rule may become binding upon a group of people because that group through its practices accepts the rule as a standard for conduct. It is not enough that the group simply conforms to a pattern of behaviour. A practice constitutes the acceptance of a rule only when those who follow the practice regard the rule as binding, and recognise the rule as a reason or justification for their own behaviour and as a reasons or criticising the behaviour of others who do not obey it.’ ii) A rule may become binding because it is valid under the rule of recognition. Dworkin however notes that the binding force of the rule of recognition depends on its acceptance. If we wish to know what rule of recognition a particular community has adopted or follows, we must observe how its citizens and particularly its officials behave. Comparison b/w Hart & Austin Whilst Hart agrees with Austin that valid rules of laws may be created through the acts of officials and public institutions. Austin thought that the authority of the institutions was a product of the monopoly of power whilst Hart suggests that their authority is in the background of constitutional standards against which they act and which have been accepted, in the form of a fundamental rule of recognition. Coleman and Leiter Critique natural law given that it does not provide an argument for the authority of the law i.e. why do people follow the law? They suggest that an authority is a person or institution whose directives provide individuals with a reason for acting e.g. the fact that X commands Y to do something gives Y a reason for doing it, without assessing how good X’s reasons are for having commanded it. Therefore, if X commands something Y ought to do on its own merits, then Y has a reason for doing what X commands independent of the fact that X commanded it. Therefore they identify an issue with natural law. For in order to be law, a norm must be required by morality however morality already has authority in the sense that the fact that a norm is a requirement of morality gives agents a reason to comply with it. Therefore, if morality has authority, and legal norms are moral, then law has authority too. This makes law’s authority redundant on morality’s. For law to be authoritative, it must provide citizens with a reason for acting that they would not otherwise have, but if all legal requirements  are also moral requirements then the fact that a norm is a norm of law does not provide citizens with an additional reason for acting. → Natural law theory fails to account for the authority of law. Hart v Dworkin debate overview The basic tenets of Hart’s theory are (1) the rule of recognition; (2) the model of rules, that is, the claim hat all legally binding norms are rules; (3) the separability thesis and (4) judicial discretion One basic tenet of Hart’s position is judicial discretion - the constrained authority of judges to appeal to standards other than those legally binding on them in order to resolve controversial legal disputes. ○ Why is judicial discretion unavoidable? Hart describes the rule of recognition as setting forth the conditions necessary and sufficient for a norm to count as part of a community’s law. However, there may be instances where a dispute arises in which no norm satisfying the rule of recognition applies or results in an outcome. In such an instance, the judge has no option but to go beyond the set of binding legal norms and consult non legally binding standards. Hart argues that even where there are binding legal norms, discretion may still be required as legal rules are expressed in general terms e.g. no vehicles in the park. He argues that whilst general terms have a core of accepted meaning they also have lots of uncertain and controversial meanings. For example, it is uncontroversial that a man without a speck of hair is bald, but is a man with a hundred hairs bald? → As the law dictates no particular answer, the judge must exercise discretion and in doing so he will appeal to norms of fairness as well as o the policies that the law can be seen as aspiring to implement (moral principles and social policies) → judicial discretion required ○ Dworkin agrees with Hart that in hard cases judges will appeal to moral principles to resolve disputes. However, he argues that those norms are not extralegal standards, but are instead binding legal standards - they are part of the law. They are part of the law because ‘they express a dimension of justice or fairness suitable to law.’ Therefore, Dworkin argues 1) law is not simply a matter of rules (law includes moral principles) 2) moral principles are law though they are not identified as such under a rule of recognition 3) moral principles are law in virtue of their expressing a dimension of morality, thus violating the separability thesis 4) instead of exercising discretion, judges appeal to binding legal standards that are not rule. And so, all four tenets of Hart’s positivism must be abandoned. ○ Positivists have responded to Dworkin’s objections by taking up the idea of ‘inclusive positivism’ where moral principles can be legally binding standards provided their being law depends on their satisfying the rule of recognition → it is not the morality that makes them law; rather, it is the fact that they meet the demands set forth in the rule of recognition that makes them law. This saves the separability thesis and rule of recognition  Dworkin - Positivism’s most eloquent critic Theory: Dworkin does not claim that the validity of legal principles depends on their morality, but rather believes that when interpreting the meaning of valid legal rules it is often necessary to consult moral principles. Dworkin’s theory revolves around judges and adjudication as central to the legal system Dworkin believes that principles also form a part of law, as when we look at how cases are adjudicated, judges take into account principles, therefore conflicting with legal positivists such as Hart. ○ What is a principle? ‘A standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’ Examples of when Courts have utilised principles Riggs v Palmer - court had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. ○ How did the court approach this? Whilst the statutes construed literally would have given the heir who murdered his grandfather the property, the Court took into account the maxim ‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong’ → murderer did not receive inheritance Henningsen v Bloomfield Motors - ‘courts will not permit themselves to be used as instruments of inequity and injustice’ What does Dworin say about the nature of principles and how they differ from rules? Rules are applicable in an all or nothing fashion i.e. the rule that a will is invalid unless signed by three witnesses means that where a will has been signed by only two witnesses then it cannot be validly applied Rules can be defined exhaustively, whereas principles cannot ○ Criticism: Are rules actually able to be defined exhaustively e.g. the rule of murder, what constitutes murder? There are cases upon cases attempting to resolve this. Rules set out precise legal consequences whereas Dworkin suggests that principles do not set out legal consequences that automatically follow when the conditions are met. ○ For example, the maxim ‘no man may profit from his own wrong’ is not absolute such that it does not mean that the law never permits a man to profit from his own wrongs. → Therefore, Dworkin argues that a principle states a reason that argues in one direction, but doesn’t  necessitate a particular decision such that it can be rebutted. Principles have the dimension of weight ○ When principles intersect, to resolve the conflict you have to take into account the relative importance of each. Whereas for rules, when two rules conflict, one of the rules will simply not be a valid rule. What is Dworkin’s main argument against legal positivism based on hard cases and principles? Firstly, Dworkin suggests that positivists may argue that principles cannot be binding or obligatory ○ However, Dworkin suggests there is nothing in the character of a principle that renders it incapable of binding. Secondly, Dworin suggests that a positivist might argue that even though principles are binding, they cannot determine a particular result ○ Dworkin suggests yes whilst principles do not dictate results because they are not rules they incline a decision to go one way, though not conclusively. Thirdly, Dworkin suggests that a positivist might argue that principles cannot count as law because their authority and weight are controversial ○ Dworkin acknowledges that because principles do not stem from legislation, we cannot demonstrate the authority or weight of a particular rule. What does Dworin mean by discretion? Why does he think the idea of discretion filling gaps in the law is less attractive than his idea of principles forming part of the law? Dworkin distinguishes between three senses of discretion ○ Weak sense (judgment): when standards set by authority require interpretation or judgment ○ Weak sense (final authority): when an official’s decision cannot be reviewed or overturned by a higher authority ○ Strong sense (no binding standards): when an official is not bound by any standards set by authority, giving them freedom to decide as they see fit. Criticism of discretion as gap filling ○ Dworin argues that if judges in hard cases solely rely on discretion when deciding, they are effectively creating new legal obligations retroactively. This raises concerns such as Fairness and predictability: Parties cannot predict legal obligations if they are created retroactively by judicial discretion. This undermines the rule of law, which depends on law being knowable and pre-established prior to conduct Moral justification: Retrospective creation of obligations challenges the moral legitimacy of the legal system. If judges rely solely on discretion, it suggests that individuals are being subjected to obligations that did not exist at the time of their actions On Hart’s account what happens when there is no rule, judges will decide utilising judicial discretion and consequently, utilise retrospective decision making to create new ones. However by utilising principles the issue of ex post facto discretion is resolved. Why does Dworkin doubt that principles could be identified as law through the rule of recognition?  Lack of a Definitive Source: Principles do not originate from a specific authority or legislative process. Instead, they emerge from judicial reasoning, legal tradition, or broader moral or political considerations. No Clear Tests for Validity: Unlike rules, principles cannot be validated by formal criteria like enactment or consistency with a constitutional text. Their authority depends on a complex interplay of factors, including their moral appeal, historical usage, and coherence with the legal system. Weight and Balancing: Principles have a dimension of weight or importance that varies by context. They are not applied in an all-or-nothing fashion like rules. This makes it difficult to codify them through a single rule of recognition. Principles are controversial: Dworkin notes that the authority and weight of principles are often subject to debate. Judges and lawyers may disagree about: ○ Whether a principle applies in a particular case. ○ The relative importance of competing principles. ○ How principles should be balanced against other legal considerations Criticisms: Hart’s reply to Dworkin ○ Hart agrees with Dworkin that principles are different from rules Firstly, Principles, relatively to rules, are broad, general or unspecific - often what would be regarded as a number of distinct rules can be exhibited as the exemplifications of a single practice Secondly, principles refer to some sort of purpose, goal, entitlement or value and consequently, are regarded from the point of view as desirable to maintain or to adhere to. However, Hart does not agree with the sharp contrast between legal principles and legal rules that Dworkin alleges where rules apply in an ‘all or nothing’ manner in the sense that if a rule is valid and applicable at all to a given case then it necessitates or conclusively determines the legal result or outcome and rules do not have a dimension of weight, so if they conflict, only one of them according to Dworkin can be valid. Hart argues there is ‘no reason why a legal system should not recognise that a valid rule determines a result in cases to which it is applicable, except where another rule, judged to be more important, is also applicable to the same case.’ Hart alleges that the case that Dworkin cites Riggs v Palmer illustrates an example of a principle winning in competition with a rule, therefore the existence of such competition shows that rules do not have an all or nothing character since they are liable to be brought into conflict with principles which may outweight them. ○ For example in the case of Riggs v Palmer, the principle that a man may not be permitted to profit from his own wrongdoing was held notwithstanding the statutory rules that would have provided the murderer with the will.  Fuller Fuller v Hart debate Concerned with whether Nazi laws, particularly, of evil characteristics could be given the title of law. Fuller believed that if you look at the way that the Nazi’s convened their legal system and look at the fact that you had serial instances of retroactive laws, secretive laws etc then the Nazi laws could not be deemed law. Contrastingly, Hart argued that if these laws were considered valid by Nazi officials, they they were valid laws and their moral content is a separate question. What principles does the rule of law require according to Fuller? Fuller states that there is reciprocity between government and citizens w/respect to the observance of rules but it is subjected to ‘these are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.’ → bond of reciprocity between government and citizens Eight principles ○ 1) There must be the presence of sufficiently general rules, such that issues are not decided on an ad hoc basis ○ 2) The rules that an individual is expected to observe must be known to every citizen, or at least available to the affected party (publicly promulgated) ○ 3) There must not be retroactive legislation (prospective) ○ 4) The rules must be perfectly clear and understandable ○ 5) The rules must not be contradictory ○ 6) The rules must be relatively constant that there are not frequent changes in the rules that the subject cannot orient his action to them ○ 7) Rules must be possible to obey such that it cannot require conduct beyond the powers of the affected party(ies) ○ 8) There must be congruence between the rules as announced and their actual administration What value does the rule of law have according to Fuller? Why does he think the rule of law - the 8 principles he describes - has an ‘inner morality’ Fuller argues that moral standards (the eight principles/the rule of law he describes) is built into law so that nothing counts as genuine law if it fails to meet these standards. In virtue of these standards, Fuller argues that law has inner morality built into it because adhering to the standards aligns the legal system with moral objectives, such as fairness, justice and respect for individuals. So for fuller, some laws may be so wicked or unjust that they should not be obeyed. Therefore, Fuller’s argument challenges legal positivism as he asserts that law inherently involves a moral dimension. Why does it matter that laws should be known beforehand?  Respecting an individual’s autonomy and dignity, so that they can accord their behaviour to the rule. When you know the rules in advance you are addressing people as rational agents who are capable of understanding and adjusting their behaviour. Raz - legal positivist What principles does the rule of law require according to Raz? For Raz separates the principles to two large categories broadly i) principles that require the law to conform to standards that are designed to enable it to effectively guide action and ii) principles designed to ensure that the legal machinery enforcing the law, should not deprive the law of its ability to guide action ○ In regards to the first category 1) All law should be prospective, open and clear 2) Laws should be relatively stable 3) The making of particular laws should be guided by open, stable, clear and general rules Raz acknowledges that particular legal orders are mostly used by government agencies to introduce flexibility into the law e.g. a police constable regulating traffic, which could be incongruent with the idea of the rule of law as he acknowledges that these types of law make it difficult for people to plan ahead on the basis of their knowledge of the law. However, this can be overcome if particular laws are enacted only within a framework set by general laws ○ Two kinds of general rules create the framework for the enactment of particular laws: Those which confer the necessary powers for making valid orders Those which impose duties instructing the power-holdrs how to exercise their powers. Both have equal importance in creating a stable framework for the creation of particular legal orders ○ In regards to the second category 4) The independence of the judiciary must be guaranteed Since the court’s judgment establishes conclusively what is the law, the litigants can be guided by law only if the judges apply the law correctly. Therefore, the method of appointing judges, their security of tenure, the way of fixing their salaries are designed to guarantee that they will be free from extraneous pressure 5) Principles of natural justice must be observed Open and fair hearing, absence of bias etc 6) The courts should have review powers over the implementation of the other principles This includes review of both subordinate and parliamentary legislation and of administrative action 7) The courts should be easily accessible Long delays, excessive costs etc may affect one’s ability to effectively guide oneself by the law 8) The discretion of the crime-preventing agencies should not be allowed to pervert the law  E.g. the police should not be allowed to allocate its resources so as to avoid all effort to prevent and detect certain crimes, or prosecute certain classes of criminal What is Raz’s response to Fuller on the ‘inner morality’ of law Raz suggests that the law has instrumental value (can be used for bad and good), rather than the rule of law creating ‘inner morality’ within the law. The rule of law is a negative value (focuses on preventing harm, rather than doing good) where the law inevitably creates a danger of arbitrary power but the rule of law is designed to minimise the danger law itself can create. ○ The Rule of Law is Procedural, Not Moral: Raz argues that the principles Fuller identifies are procedural requirements necessary for a legal system to function effectively, but they do not guarantee moral outcomes. A perfectly legal system could still promote immoral or oppressive policies, provided it adheres to these procedural rules. ○ Morality and Legality are Distinct: Fuller’s claim that adherence to the rule of law fosters reciprocity and respect between the government and citizens presumes a moral dimension. Raz counters this by stating that while the rule of law can facilitate justice, it does not inherently ensure it. For instance, a totalitarian regime might adhere to the rule of law to achieve oppressive goals. ○ Tool for Governance: For Raz, the rule of law is better understood as a tool that enables effective governance. It is a neutral framework that can be used for good or bad purposes, depending on the moral content of the laws it enforces. How is the rule of law connected to the concept of law according to Raz? Raz argues that the law creates a danger for arbitrary power and the rule of law is designed to minimise the danger created by the law itself. ○ 1) Conformity to the law does not cause good except through avoiding evil ○ 2) the evil which is avoided is evil which could only have been caused by law itself Therefore, he treats the rule of law as an ideal or standard that legal systems should try to obtain, but it’s not essential. Rather his model focuses on law is something that is capable of guiding behaviour, however inefficiently. Waldron Disagrees with Raz: ‘The rule of law is an ideal designed to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular.’ What is causal positivism: ‘Law is any system of command with the power to dominate all other systems of command in a given society, where the chain of effective command can be traced to a single political ascendant source’ ○ Waldron argues that using this definition of law, regimes such as Kim Jon-Il in NK would be considered to be a legal system. Therefore, Waldron argues that we should discriminate about how we use the term law - not every system of command and control that calls itself a legal  system, we need to scrutinise the system and see how it works before it is afforded such a title. What is Waldron’s theory about what makes a legal system? Existence and operation of courts ○ Institutions that apply norms and directives established in the name of the whole society to settle disputes about the application of norms and do so through the medium of hearings - formal events that are tightly structured to enable an impartial body to fairly determine the rights and responsibilities of particular persons after hearing evidence and arguments from both sides General public norms ○ Firstly, Norms must be general in character ○ Secondly, the norms must be public in the sense of being available to anyone who is sufficiently interested Positivity ○ Law as a man-made institution that people have made and can control → the idea of law conveys a sense of freedom, a sense that we are free to have whatever laws we like Existence and operation of a legislature - Legislation conveys the idea of making or changing laws explicitly in an institution through a process publicly dedicated to that task. Whereas, courts perform their law-making function non-transparently, ‘under cover of a pretense that the law is being discovered, not made or changed - and through processes that are not organised as legitimate law- making processes.’ Orientation to the public good ○ ‘We recognise as law not just any commands that happen to be issued by the powerful, but norms that purport to stand in the name of the whole society and to address matters of concern to the society as such. We recognise institutions as part of a legal system when they orient themselves in their public presence to the good of the community - to issues of justice and the common good that transcend the self-interest of the powerful.’ ○ However, Waldron qualifies this by saying that he does not mean that nothing counts as law unless it actually promotes the public good - rather he argues that ‘nothing is law unless it purports to promote the public good i.e. unless it presents itself as oriented in that direction.’ Systematicity ○ A legal system builds on itself - law grows by accretion so that new liberal legislation takes its place alongside old conservative legislation ○ Legal norms present themselves as fitting or aspiring to fit together into a system ○ Using existing logic of the law into an area of uncertainty or controversy using devices such as analogy and reference to underlying principles These features are morally motivated - the criteria allows the law to respect people’s dignity as agents capable of autonomous self government ; law as representing a way in which a community takes public control of the conditions of its collective life  Legal positivism vs Natural Law Legal positivism: ○ Believe that all legal facts are determined by social facts alone (‘the social thesis). Therefore, claims about the existence or content of a legal system must be established by referring to what people think, intend, claim, say or do and there is no necessary connection between law and morality (the separability thesis) Positivists disagree with one another about the nature of the ultimate social facts, but one plausible version is that the fact that legal officials treat the state conventions as having had the power to ratify the constitution makes it the case that the constitution is legally bounding on them. ○ The positivist believes that it is a necessary property of the law that its existence and content is ultimately determined by social facts alone. ○ E.g. The Fugitive Slave Act (1850) can be described as ‘law’ under a positivist framework, even though the morality of it can not be justified. ○ What are the three tenets of legal positivism as proclaimed by Dworkin? ‘The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public power’ The valid legal rules are exhaustive and make up ‘the law’ To say someone has an obligation is to say that their circumstances fall under a valid legal rule that require them to do or not do something Natural Law Theorists: ○ Assert that legal facts are ultimately determined by moral and social facts ○ Assert that law cannot be fully described without considering its moral justification (moral + social facts). Therefore, law is inherently tied to morality and an unjust law may fail to qualify as a law at all. Claims of legal authority and proper interpretation must be justified through morally sound reasoning Although natural lawyers disagree with one another about the nature of these ultimate moral facts, one plausible version of their position is the fact that the constitution was ratified by all of the state conventions and invests it with moral authority and hence legal authority. The constitution, therefore, is legally binding on this view, not because it is but rather because it ought to be followed. ○ The natural lawyer claims that it is a necessary property of the law that its existence and content are ultimately determined by both social and moral facts ○ For natural law theorists, claims of legal authority and proper interpretation must in the end be justified through morally sound reasoning ○ Natural law theorists argue that law is not just a system of rules but also a system of moral guidance. To describe law adequately, one must account for whether it fulfills its moral purpose.  Indigenous Law Waldron What is legal pluralism? ‘Term used to describe and characterise the existence of several distinct legal systems, or perhaps legal sub-systems, within a single independent political community, like a nation-state.’ Pluralism vs Hart’s positivism In legal literature it is assumed that Hart’s theory is hostile to legal pluralism ○ Why? Pluralism presents a model of the legal universe where legal systems and institutions can conflict and overlap. Hart’s model of legal order resembles a pyramid, with the top of the structure being the rule of recognition which serves to validate and identify the remaining rules of the system. However, Hart provides an alternative view to the sovereign-based jurisprudence of Austin as he thought the command theory of law was inadequate. Hart criticised the vertical (top-down) structure of the traditional model, interesting that the key to jurisprudence is not the notion of command or the notion of sovereignty, but the notion of the members of a group accepting a rule. Waldron argues this is less hostile to pluralism. → Waldron suggests that Hart, having refuted the top-down sovereign- dominated definition of law, recognises legal systems wherever we find the appropriate primary rules packaged together with secondary rules. However, Waldron draws attention to the fact that Hart does downplay the extent to which the law can be characterised as rooted in the everyday practices and shared understandings of ordinary people within a community as he envisages that typically, the secondary rules of a society will be practices shared and participated in by a small elite sub-set (the officials of the legal system e.g. judges) of the social group they dominate. According to Hart, ordinary members of society need not be directly involved as participants in the practices that constitute the rule of recognition. However, Waldron states that there is nothing in Hart’s books that seem to indicate that ‘officials’ for this purpose must be state officials ‘certainly the judges of an international tribunal and perhaps the priests of a religious group or the elders of a cultural or ethnic group could qualify’ Each of these kinds of groups or association could thus have a kind of law of its own according to its members’ concept of law.’ ○ Additionally, Hart accommodates existence of forms of law besides law by the state therefore qualifying the top-down character of Hart’s jurisprudence. Waldron suggests that the rule of recognition itself is like a custom - accepted among judges and high officials. However, Hart  notes that ‘custom in the modern world is not a very important source of law’ as it is usually subordinate to statute law. Waldron notes that Harts discussion of custom as a form of law does not extend beyond situations where custom is fully integrated into a state dominated legal system - where legal customs would be subject to the rule of recognition. Mary Graham How does Mary Graham characterise Aboriginal law in contrast with settler ways of understanding law? Aboriginal law ‘never changes and is valid for all people’ because it describes the ‘wider emotional, psychological and…cognitive states of the world to which all humans are subject.’ → describes aboriginal law is ‘as natural a system of law as physics’ Aboriginal law Refers to a complex relationship between humanity and land and where law is both a science and a religion ○ Religion in that it explains both the origin and meaning of the cosmos ○ Science in that it explains the origin and meaning of the cosmos rationally and with empirical evidence to support. ○ Therefore, land serves as both the source and locus of law. Contrastingly, western notions of law view land as a backdrop or resource. Says that western philosophy of law can be divided into natural and positive categories ○ Historically western definition of natural law is ‘that which nature, that is god himself, taught all living things’ ○ Whilst Austin proposed the first positive theory of law where law is not God-given but human made, and is effectively made by a legal sovereign. Under positiver law, law is capable of being legislated, amended and repealed by human agency, whilst natural law is not. Mary Graham argues that under the western theoretical criteria, aboriginal law is natural law, in that if it was legislated at all, this was done not by humans, but by the spiritual ancestors of the dreaming, so that aboriginal law is incapable of being added to, amended or repealed by any human agency Mary Graham likens aboriginal law to a cognitive science or applied psychology in that it doesn’t deal with the actions of humans or the events which befall them, but rather with what makes it possible for people to act purposively and experience events ○ The law is an attempt to understand what it is that makes us human and how and why we act with purpose: where does it all come from? Why and how do we experience the events that occur in our lives? Mary Graham describes aboriginal law as both ‘an action guide to living and a guide to understanding reality itself, especially in relation to land as the basis for all meaning’ → compares aboriginal law to Buddhism but recognises differences such as the fact that Buddhism seeks an escape from normal, waking consciousness on the grounds that no matter how richly endowed, waking existence is an endless wheel of birth, suffering and death. By contrast, aboriginal law celebrates lift in all its ups and downs. Mary graham identifies that within the settler legal system people’s level of knowledge is judged by objectively observable canons of behavioural excellence e.g. when a person’s level of knowledge can be objectively gauged then this is sufficient for any community to determine whose opinion should be listened to and whose should not. In such a system, those whose opinions are backed by consistently wise public behaviour will end up  being listened to and this will determine much of what that community considers to be correct or lawful. However, the aboriginal people let others find things. ○ Custodianship = ‘to allow this natural wisdom to assert itself within the limits of accumulated community experience and knowledge is what custodianship consists in.’ → therefore everyone in the traditional aboriginal community is acknowledged to have something unique to offer, because of his or her spiritual identify and personal experiences of life What according to Brigg and Graham, are some of the problems with liberalism? (from earlier topics) Liberal state is not neutral - makes moral judgments based on its christian heritage Liberty is seen as inherently interconnected with domination, with both sides being inseparable ‘like two sides of a single coin’ ○ While it champions personal freedom and equality, it often does so selectively, sidelining or oppression indigenous people as ‘lesser humans’ or ‘as not yet ready for freedom’ Liberalism assigns questions of ethics to individual choice rather than embedding it within a communal or custodial responsibility. ○ This framework does not compel organisations to protect cultural heritage, as seen in the destruction of the Juukan Gorge rock shelters, because ethics are often only considered in terms of compliance or risk management, not as inherent values that guide actions Why do Brigg and Graham argue we ought to engage more with Aboriginal political concepts and ethics? (from earlier topics) Ethics under indigenous political thought is seen as a normal part of human development that is bound with a custodial ethic of caring for country → ethics is a pursuit that everyone enacts as part of their being and the overall ordering of of society such that it is not merely a choice but part of being human → more ethical polity By engaging with aboriginal political concepts, it provides Australia with an opportunity to develop a truly unique Australian political philosophy rather than one that is simply European derived. Resultantly, this would provide better way of governing and managing the relationship between settler and first nation What common understanding of Aboriginal selfhood do Brigg and Graham characterise as an error? How do they characterise Aboriginal selfhood instead?(from earlier topics) The Common understanding of Aboriginal selfhood is one that is collectivist/group-orientated and therefore is very different from western individualism. Brigg and Graham however, suggest this understanding is wrong. Rather, Aboriginal selfhood stems from Country What similarities and differences do Brigg and Graham identify between Aboriginal understandings of autonomy and those of ‘prevailing Western political thought’? (from earlier topics) Similarities:  ○ Valuation of Personal Freedom: Personal autonomy is one of the bases of Aboriginal social and political life, consequently it tends to be highly valued. Resultantly, this includes tolerance of idiosyncratic behaviour and reactions against arbitrary exercises of authority. Differences: ○ Relational vs Individual autonomy: Aboriginal autonomy is inherently relational, requiring connections with others and environment, particularly with Country. In contrast, Western autonomy often emphasises individualism and self-sufficiency. ○ In Aboriginal conceptions of autonomy, someone’s independence may be diminished or compromised, however it is considered to be intrinsic such that it cannot be given or taken away, unlike in Western political thought where autonomy often dependents on the social contract or institutions and agreements. ○ Social Order and Autonomy:Aboriginal social order does not require giving up or limiting autonomy in order for social order to occur, this is in stark contrast to western political thought which typically sees a trade-off occur between personal freedoms and social order. This doesn’t occur in Aboriginal understanding of autonomy given that autonomy is a relational-social capacity such that autonomy requires others. ‘Becoming a person requires asserting one’s autonomy, including by accepting or refusing the obligations and requests made on the self by Kin and Country Therefore, self-regulation and socio-political order arise through the enactment or autonomy rather than the command-obedience power relations that are often imagined as necessary for order in western political thought How do they suggest that turning to Aboriginal political thought could help respond to challenges like climate change? Western notions of selfhood fuel ‘anthropocentric hubris and disconnection from the physical environment’. It is shaped by ideas of individualism and dominance over nature→ this facilitates detrimental human activities such as resource extraction, habitat destruction, species extinction etc. In contrast, as Aboriginal selfhood stems from Country, it maintains human connection with place, landscape and other beings, thereby countering anthropocentric hubris. Kirsty Gover Legal doctrine in settler states relies on notions of sovereignty and law to deny the independent legal authority of Indigenous peoples. Settler courts confirm that sovereignty of a state cannot be questioned by domestic courts ○ The only indigenous laws that are formally regarded as law are those that can be understood to derive from state sovereignty  Through the lens of legal pluralism, indigenous law in settler states is readily understood as law given its association with governance arrangements, its concern with social control and its application within defined territories and to identifiable communities. However, this recognition is limited and falls short of acknowledging the inherent independent authority of indigenous law in settler states How can we reconsistute the legal system such that it integrates both indigenous and settler legal traditions/ ○ Treaty making ○ Implementing measures in settler law that accord legal personality to nonhuman persons in line with indigenous legal concepts ○ The common law recognition of indigenous laws ○ Basically all these ideals depend on the recognition of indigenous peoples as communities that govern themselves in accordance with their own law, independently of the state and its legal system Indigenous legal tradition emphasises the interrelatedness of people, and of people and the natural world and stress the need for balanced differentiation as a sustaining tension in cosmic and legal ordered. It has been described as a ‘law of relationship’ Jeremy Webber proposes that legal pluralism can be effected through a dialogic approach that enables the ongoing mutual accommodation of state and indigenous legal systems. This involves ongoing dialogue on the terms of recognition, the participation of all whose are subject to those arrangements and the reversibility of outcomes. He argues that recognizing nonstate legal systems should include respecting how those systems discuss and resolve disagreements, make decisions, and interpret norms. Under his account legal norms are not the product of spontaneous consensus in a community but the result of political debate and contestation. He therefore suggests that it is a ‘legal culture’ that should be the object of recognition ○ Under this view it is the relevance and meaning of the norms to the lawmaking community that is significant not the compatibility with the existing law of the state, nor compliance with legal theories used by the state. ○ In a properly relational conception of legal pluralism, all participants are urged to consider and evaluate conceptual frameworks and historic experiences of the other, bearing in mind that concepts of law and lawfulness will appear differently in indigenous orders than in those of the state. Indigenous legal traditions in legal scholarship ○ Generalisations about indigenous law need to be understood against the backdrop of indigenous diversity - across the three Cth settler states there are nearly 900 recognised indigenous nations holding legal personality and acting on behalf of their members in dealings with the state and third parties. ○ Most indigenous law is unwritten and law and legal tradition may be entwined with social life to such a degree that separating the two is not possible. However, in the body of scholarship by indigenous authors addressing the core features of indigenous legal systems some basic common premises can be discerned that distinguish aboriginal legal traditions from settler law ○ Understanding of law as relatively undifferentiated from moral, ethical and cosmological orders ○ An emphasis on appropriate affect and feeling in a person’s relationship to law and to legal obligation ○ The distinctive roles within those legal systems of persons with relevant attributes and statuses  ○ The practice of articulating and promulgating law through the intergenerational transmission of law as stories or exemplary narratives ○ Emphasis on the interconnection of people and the natural environment and identifying the land as the source and repository of law ○ Therefore, in these accounts law does not emanate from norms posited by humans but is located and held in the natural world where individuals observe and learn from the physical environment. ‘Aside from sacred sources, indigenous peoples also find and develop law from observation of the physical world around them.’ Mary graham: ‘the land and how we treat it, is what determines our humanness. Because land is sacred and must be looked after, the relation between people and land becomes the template for society and social relations’ Emphasis on watching and witnessing as tools for encouraging worthy behaviour within the community and ensuring the accountability of members for wrongdoing Also identified commonalities in the ways that indigenous communities interpret and communicate their law ○ Tendency in indigenous law toward the iterative elaboration of norms and principles rather than toward precision and certainty of rules ○ Processes of lawmaking that are deliberative and communal ○ The dispersal of authority to use and explain law among differently positioned members of the community rather than in centralised hierarchies of concentrated expertise and authority ○ Norms governing the accessibility and publicity of law that regulate the ways in which it can be name and communicated and by whom Practice of storytelling as a important way of conveying and implementing indigenous law. The role of the listener is an active one and storytelling serves to embed conversations about legal and moral norms in the decision making processes of the community ‘stories are forms of legal precedent that can be drawn on in order to legitimately resolve issues in decentralised legal orders’ ○ Indigenous stories and legal anrratives deploy analogy as a tool a method also used in settler common law reasoning ○ Listeners are encouraged to extract principles from stories, consider their application to various real life events and problems and incorporate these principles into their conduct and relationships Indigenous narrative support the ongoing revision of norms over time and in application to new circumstances. Also points out that the practice of transmissitting law through the bodies of storytellers and listeners assists in investing the responsibility for law in the members of the community through processes of internalisation rather than through rule that are externally articulated and enforced. The law is received from the land in forms that are narrative and iterative, unwritten and enacted through practice and repetition - the land is the ‘great teacher’ Challenges ○ Ris that writing about igneous law using a non-indigenous lexicon can contribute to its deracination, approximating meanings in written words that are far removed from the places, people and activities that give the law its authority. A mere translation of the stories to english may leave out fundamental fine distinctions, subtle nuances and even correct meaning. However, writing about indigenous law in settler languages may actually protect and enliven indigenous law alongside efforts to reinvigorate indigenous languages. ‘There is an equal danger of distortion when an extreme cautionary approach paralyses us from engaging in any substantive work with indigenous law, leading to the current dire lack of clear-minded theorising and useful theory and perpetuating the colonial myth of an absence of indigenous legal thought.’  ○ Indigenous legal and political theories challenge some core tenets of settler “origin myths,” including: consent and contract theories of political organization that emphasize human choice and agency; the primacy of the individually held and autonomy-focused primary goods that are to be distributed and protected by the liberal state (including especially the capacity to choose and pursue a “good life”); the supposed neutrality of law and legal processes; the designation of a certain class of persons as “ocials” with a special authoritative role in law-making; concepts of property and territory that depend on a legally signicant distinction between human beings and things (the personam versus rem distinction) and so also express a distinction between humans and the natural world; and principles of formal equality, publicity, and prospectivity associated with concepts of the rule of law in liberal democratic states What features of Indigenous legal traditions appear to contrast with the features of settler law ? What features do they share with settler law? Contrast ○ Source of Law: Indigenous Legal Traditions: Often derive from cosmology, oral histories, and relationships with the land and environment. For example, the Ngarinyin people's Law of Relationship is deeply tied to natural laws and cosmological forces. Settler Law: Based on codified statutes, judicial precedents, and legislative processes, often influenced by Enlightenment principles of individual rights and property. ○ Focus and purpose Indigenous Legal Traditions: Focus on collective well-being, interconnectedness, and ecological balance. They prioritize maintaining harmony and relationships between people, land, and other living beings. Settler Law: Primarily emphasizes individual rights, property ownership, and adjudication of disputes between private parties or individuals and the state. ○ Legal Authority Indigenous Legal Traditions: Authority is decentralized, often vested in elders, communities, or custodians of knowledge rather than centralized institutions. Settler Law: Authority is centralized in courts, legislatures, and state or federal governments, with hierarchical systems of enforcement ○ Temporal perspective Indigenous Legal Traditions: Tend to operate in a cyclical understanding of time, where past, present, and future are interconnected. Legal principles often aim at ensuring sustainability for future generations. Settler Law: Operates on a linear understanding of time, with laws and decisions focused on immediate resolution and progress. ○ Relationship with land Indigenous Legal Traditions: View the land as a source of law, a living entity that holds intrinsic legal principles. Humans are stewards rather than owners of the land.  Settler Law: Treats land primarily as property, emphasizing ownership, exploitation, and resource management. Christine Black The law of relationship as not supplanting, but rather to coming into a relationship with human-made law Cosmology ○ Law is not made by humans but rather ordained and deposited into the land by the primordial energies. Therefore, the source of law is beyond humankind and their individual concerns; rather, it sits in the realm of eons of time. Therefore, to appreciate aboriginal law the outside rmust connote law with a universe of galaxies that come and go, that die and re-fertilise. Therefore, the law is the physis The law of relationship ○ The law of relationship emphasises the interconnectedness between all living beings, the land and the cosmos ○ Gi represents the spiritual relationship between humans and their totems, which are considered ‘brother’ or ‘sister’ beings. Humans are responsible for the preservation and renewal of their totemic species, in return the totem provides spiritual support t them and patterns them into the land which brings a balance of physis/a balance of law. This dynamic creates a system where individuals are accountable for maintaining balance within their ecological and spiritual environment. The rights and responsibilities of human are intertwined with their gi. ○ A person’s gi defines their legal identity and role within the community Raz From Multiculturalism Topic 5 Raz presents the doubts that liberals have about multiculturalism - the view of the superiority of the secular, deocratic, European culture and a reluctance to admit equal rights to ‘inferior, oppressive, religious cultures, or ones whose cultural values tend to be limited and less developed.’ Taylor From Multiculturalism Topic 5 Taylor highlights that multiculturalism often asserts the equal worth of all cultures. However, he questions whether this equality claim requires us to uncritically regard all cultures as equally valuable, regardless of their practices or achievements he illustrates this tension through the famous remark attributed to Saul Bellow: “When the Zulus produce a Tolstoy, we will read him.” For Taylor, the central issue is whether it is possible to critique or assess cultures without falling into a hierarchical, ethnocentric framework that perpetuates historical patterns of domination. Taylor recognizes that judgments of cultural worth are often shaped by ethnocentric biases. The dominant standards of evaluation—literary output, technological progress, or philosophical contributions—are frequently rooted in the perspectives of Western societies, which have historically imposed their values on others. To judge a culture's worth based on these criteria risks perpetuating colonial narratives that dismiss non-Western traditions as primitive or inferior. For example, dismissing the cultural achievements of Indigenous peoples or African societies because they do not conform to Western intellectual paradigms ignores the richness and significance of oral traditions, communal values, and spiritual systems.