Jurisprudence Notes.pdf

Jurisprudence that she believed that she might be pregnant. She expressed concern that her illness might be rubella (commonly known as German measles). On Dr Max Stephens's advice, Mrs Harriton underwent blood testing to determine whether she was pregnant and whether she had been exposed to the rube...

Jurisprudence that she believed that she might be pregnant. She expressed concern that her illness might be rubella (commonly known as German measles). On Dr Max Stephens's advice, Mrs Harriton underwent blood testing to determine whether she was pregnant and whether she had been exposed to the rubella virus. The testing was performed by Macquarie Pathology Services. Dr Max Stephens recorded the following clinical history: "Urgent,? pregn,? recent rubella contact." On 21 August 1980, the Pathology Service reported to Dr Max Stephens in the following terms: "Rubella 30 If no recent contact or rubella-like rash, further contact with this Week Six Legal Realism Brief movement 1920s-1940s (although in many ways it lays the groundwork for the CLS Movement) Aimed to demythologise law There was never an attempt to present a complete theory of law They were sceptical of the traditional picture of law as consisting in rules. They were also sceptical about the determinacy of law. Began to describe law in its social context, and demonstrate that non-legal factors influence decisionmaking in the courts. They took the view that non legal and even idiosyncratic factors are the most important influences on judicial decision making. One of the main concerns of the American realists was to provide practical advice to lawyers- the thrust of which was however much judges may purport to be constrained by the legal rules, their decisions will ultimately be guided by their reactions to the facts of the case at hand. For the realists this meant that lawyers should go beyond the formal rules and look for other types of patterns when seeking to predict the outcomes of future cases. Advice to courtroom advocates- focus first on making the judge feel an affinity for their side of the facts and then focus on making formal legal arguments for the desired conclusion. Situating the realists a reverence for logic and theoretical deduction Empirical study = knowledge based on observation or experience Formalist legal reasoning assumed all cases had correct answers, which judges could deduce by applying positive rules connections with morality are only contingent or coincidental (also responsible for positivism refining its arguments). Jurisprudence Scandinavian Realism American realists were preoccupied with the way law is made in practice and how i ought to be made. Whereas the central concern of Scandinavian realism is to explain how the law changes the behaviour of people. They (the Scandinavians) sought to explain scientifically the force of the law, free of the metaphysical element embedded in traditional explanations. Their scientific inquiry leads to the finding that the force of the law is produced by psychological effects caused by the ritualistic modes of lawmaking, such as the process is by which Parliament approves legislation or a judge pronounces judgement. Where is the American realists galvanised our thoughts about the realities of law creation, the Scandinavians illuminated the way law serves its function by altering human behaviour. The emphasis here was on the psychological dimension of law. Laws are not corporal things. We cannot hold them in our hands. They're not even ideas about real things. They are ideas about how persons ought to behave in the real world in relation to material things and events. (Ratnapala, 2021, Jurisprudence, p.126) American realists were skeptical about legal rules This skepticism manifest in two ways: 1. The law should not be identified with the rules of law. Instead, it is a pragmatic focus whereby the way in which courts affect the lives of those who come before them by attaching consequences to our conduct 2. Legal rules are of little importance in judicial decision-making or a sham the Judiciary How do realists account for the indeterminacy of law? -making as This led realists to conclude that the content of legal rules frequently does not determine the outcomes of actual cases. This is often called the indeterminacy thesis. You will recall that theorists such as Dworkin and Hart admit that discretion sometimes plays a role in adjudication. Moreover, they are aware that sometimes judges might decide law due to some non-legal factor. This is a crucial point of departure. While traditional theorists argue that legal disputes are capable of being resolved according to law, realists argue that rules are incapable of controlling judicial decisions Jurisprudence They maintain not merely that judges do not base their decisions on the legal rules but believe that the rules are incapable of controlling judicial decisions. Judges cannot be criticised for departing from the law, be provide determinate answers to legal questions. Realists argue that there are so many rules which might be potentially relevant, Furthermore, there are competing methods of interpreting precedents. The same can also be said about interpreting statutes. How Judges Decide Cases Conclude that legal rules cannot be the main factor in the formation of judicial decisions as legal doctrine is indeterminate The real reason for judicial decisions must be something else. An understanding of these reasons would therefore enable us to predict judicial decisions in a way that an understanding of the legal rules does not *Key realist claim = non-legal factors lead judges to have a gut-level response to the facts of the case (such as psychology, sociology or institutional environment) MAY also decide cases about what they believe is fair, in the public interest or commercially desirable. Judges are reluctant to acknowledge the real reasons behind their decisions because to do so would subvert the rule of law ideal of impartial objectivity. The Pragmatic Model of Adjudication Felix Cohen judges should openly adopt a lawmaking role and address questions of socio-economic policy with the changing needs of society in mind They should attend to the delicate practical task of social adjustment make the choice they think is on balance reasonable, having taken into account all of the relevant moral and political considerations. Thus, make law. Judges should follow past judgements, ONLY if, on balance it is reasonable to do so Oliver Wendell Holmes Jr (1841-1935) Harvard Law Professor, philosopher and judge. He served on the Massachusetts Supreme Court for 20 years and on the US Supreme Court for 30 years. His most famous writing is his 1885 speech which was later published by the Harvard Law Review of law. the traditional view of the law (as a body of doctrines which develops according to its own inner logic). Sought to replace this traditional view wityj am investigation of how the legal system operates in practice. Thought to have laid the groundwork for the notion that judges cannot be criticised for departing from the law, because law does not provide determinate Lochner v New York (1905) 198 US 45, 76 (Holmes J, dissenting). Jurisprudence The Common Law (Little Brow Boston), 1881, 1. 1. The law is an evolutionary process. It is the product of experience and not logic. It reflects society's adaptation to a changing world. 2. Courts play a vital role in the evolution of the law by actively reforming the law to suit changing conditions Decisions of the appellate courts are presented as logical deductions from established rules. But in fact, by a legislative innovations. Courts make new law for new conditions. 3. Statutes depend for their efficacy on the courts and hence they are not law until enforced by the courts. 4. 4. Law, for the above reasons, turns out to be nothing more than predictions about how courts will decide a dispute. (Ratnapala, 2021, 114) Karl Llewellyn (1893-1962) Held Chairs in Law at Yale, Columbia and Chicago. He is best known for his book, The Bramble Bush: On Our Law and its Study (1930). Llewellyn followed Holmes in arguing that society is always in a flux, so law is always catching up. He observed that traditional jurisprudence failed to investigate the way that courts balance two competing ideals of law- certainty and justice. As a rule sceptic, he mocked the notion that rules provide unfailing guidance to However, he nonetheless valued rules and the certainty they bring to law. For Llewellyn, the degree of uncertainty is not a vice, but rather a virtue of law. - setting out Jerome Frank (1889-1957) Lawyer and legal philosopher. He served on the US Court of Appeals. His most famous work is Law and the Modern Mind (1930) A fact skeptic (and a rule skeptic). Widely accepted that his arguments about facts were more persuasively put. to any particular set of facts is a decision of a court with respect to those facts, so far as that decision affects a particular person. Until a court has passed on those What was Frank arguing? According to Frank, even in situations where the rules are clear it is till impossible to predict the fact findings of judges and juries. He thought that the elusiveness of facts creates even more unpredictability and uncertainty that that which attends a lack of determinancy regarding rules. Frank divided "legal realists" into two groups: 1. The first and larger group (of whom Llewellyn is representative) may conveniently be labeled "rule-skeptics." They resembled Cardozo in that they had little or no interest in trial courts, but riveted their attention largely on Jurisprudence appellate courts and on the nature and uses of the legal rules. Some (not all) of this group (Oliphant being the most conspicuous here) espoused the fatuous notions of "behavioristic psychology." Some (not all) of these "rule-skeptics" went somewhat further than Cardozo as to the extent of the existent and desirable power of judges to alter the legal rules. 2. The second and smaller group may conveniently be labeled the "factskeptics." They importantly diverged not only from conventional jurisprudence but also from the "rule-skeptics." So far as appellate courts and the legal rules are concerned, the views of the "fact-skeptics" as to existent and desirable legal certainty approximated the views of Cardozo, Pound, and many others not categorized as "realists." The "fact-skeptics'" divergence sprang from their prime interest in the trial courts. Tracing the major cause of legal uncertainty to trial uncertainties, and claiming that the resultant legal uncertainty was far more extensive than most legal scholars (including the "rule-skeptics") admitted, the "fact-skeptics" urged students of our legal system to abandon an obsessively exclusive concentration on the rules. perLaw & Contemp. Prob. 369, 384 (NB Frank makes the same distinction in Law and the Modern Mind (1949). Extracted in Freeman. What does Hart regard as the fundamental flaws in the realist conceptualisation of law? You might remember that Hart thought the realists were right in some cases (the penumbra). He thought the the realists were preoccupied with the penumbra- and by extension exaggerated the indeterminacy of legal rules. conflation of finality and infallibility. Games can be played without an umpireplayers will needed to make best efforts to determine who is winning in terms of the rules. What/how does this change if an umpire is added? What happens application of the rules (which official status) does not guarantee that the rules have been applied correctly. Legacy acknowledged. American realism jolted legal positivists out of their complacency by questioning widely held assumptions about the nature of rules. It should be remembered that Holmes exposed the weaknesses of the command theory. Of law long before heart. Realism prompted the rethink of legal positivism that was brilliantly undertaken by scholars like Hart and Raz. It forced positivist to distance themselves from formalism and to reconsider the nature of legal language and judicial discretion. It may even be true to say that (Ratnapala, 2021, Jurisprudence (3rd edition), CUP, p.126 Jurisprudence Where does Critical Legal Studies fit in? CLS can be situated historically and in terms of its intellectual influences CLS emerged in the US in the 1970s, against the backdrop of 1960s radical and revolutionary politics student unrest anti-war protests black rights movement wing Law academics expressed this disquiet through challenges to key legal orthodoxies Who: Duncan Kennedy, Roberto Unger, Peter Gabel, Mark Tushnet, Morton Horwitz & David Trubek. in intellectual quarrels with their own legal education. Most activist students of the 1960s who were involved in radical or left-liberal politics found the studiedly anti-political teaching of that time simply irrelevant to their concerns; they scrounged such slim practical pickings form law school as they could, got the degree, and moved on. But the 1960s law students who went on to form the core of cls mostly became teachers themselves, and so were motivated to engage with the content and style of orthodox doctrinal teaching and st The Background Of The Intellectual Politics Of Modern Legal Education In The Legal Education Review 59, 75 has also been a network of people who were thinking of themselves as activists in law school politics. Initially, the scholarly literature was produced by the same people who were doing the law school activism. Critical legal studies is not a - Duncan Kennedy. The Suffolk University Law School Journal (1994) 24(2) 56, 56 from its other traditional legal theory and describing what critical thought does. Most of those who regard themselves as engaged in some form of critical of legal objectivity and legal neutrality. The idea that law can be studied in isolation from its social, moral and political context is challenged by critical legal theories. Inconsequence. Critical legal theories also frequently highlight the neglect of the politics of race, sex, and class by traditional law and legal theory. Critical legal theory aims to be reflective in a philosophical sense, meaning that it considers the fundamental conditions of knowledge and being it questions the assumption upon which traditional theory is Margaret Davies, Asking the Law Question (2022), p.199 The intellectual influences shaping CLS can be grouped under two headings: Jurisprudence 1. Marxist thought 2. Poststructuralism/postmodernism 1) Marxist thought From Marxist thought, CLS adopted ideas of the way law serves the interests of power Law serves an important ideological function the ability of certain ideas and beliefs to obscure and thereby maintain the exploitative relationships on which society is based CLS is con demystify law Note: the Crits are not themselves Marxists. They do not subscribe to traditional Marxist notions of Economic determinism Revolutionary history 2) Poststructuralism/postmodernism Foucault (describes origins of concepts and beliefs we treat as knowledge). contingency and indeterminacy (objective knowledge in science, morality and politics is seen as a myth). contradiction/incoherence deconstruction CLS Key Ideologies Just like the realists, law is indeterminate Legal reasoning is a myth, used to assert false claims of objectivity the indeterminacy of the law is reflective of deep-seated and ongoing social conflict between different ideologies and competing moral and political visions. a tool of injustice Contrasted realists who believe the social science could help to reform issues within the law so it could be used advantageously CLS also influenced by American Legal Realism. CLS writers regarded themselves as the intellectual successors of the realists, especially insofar as they emphasise the political nature of law and its inherent indeterminacy. In particular, realism had a more scientific and empirical context, and basis. CLS also self consciously tried to move beyond realism. The perception of early CLS writers was that although realism had an effect on legal thinking, it had been assimilated into mainstream law as policy analysis, which remained marginal to doctrinal arguments. (Davies, p.223) CLS emphasises the ideological nature of law Law is ideological because it functions to serve the interests of the powerful perpetuates the status quo obscures the relations of power that shape our society Jurisprudence surface the distorted way in which things appear in society generally and in legal doctrine specifically with a view to revealing the underlying relationships of power, which the surface appearances disguise and by disguising, What does it mean to say that law is politics? CLS on law and liberal ideology 1. Law legitimates the social order demystifying it 2. Law is alienating Law abstracts particular relationships between real people into relationships between entirely distinct categories of individuals playing abstract roles To regard legal categories as 3. Law is only apparently neutral Law claims to be objective, rational and neutral to be value-free when these notions actually embed political and social choices CLS seeks to place law in its historical and social context, in order to expose the values underlying it Rightsand al existence. They are shared, imaginary attributes that the group attributes to its The idea is that rights should be abandoned because they have nothing to do with social reality but operate to alienate individuals from their social and political environment. answer is quite nuanced: bring a case and win a right, that right is integrated within an ideological framework that has as its ultimate aim the it means you keep your eye on power and not on rights Gabel was suggesting that formal rights do not produce substantive justice. The CLS critique attempts to unmask the false hopes promise by rights and the way they can be used to entrench, establish inequality however Gabel goes further. To say that, although there may be strategic reasons for doing so, buying into rights discourse is simply a distraction from real political action, selling out to the Liberals, so to speak. Stanford Law Review (1983-1984) 62 Texas Law Review Jurisprudence Strong critique of CLS position on rights from critical race critique of rights and rules is the most problematic aspect of the CLS programme and provides few answers from for minority scholars and lawyers. We know from frequent and sad experience that the mere announcement of illegal right means little. We live in the gap between law on the books and law in action. We have no difficulty imagining a better world; for us, eliminating racism would be a good start. One explanation for the CLS position on rights may be that the average create a white male teaching at a major law school has little use for rights those with whom he comes in contact in his daily life. Landlords, employers, public authorities generally treat him with respect and deference. Rarely is he the victim of coercion, resentment or contempt In the mind of the average crit rights offer relatively little security, while they promote Patricia Williams made similar critiques. CLS Methods How does CLS go about this task of demystification? Journal of Legal Education 201, 209 Duncan Kennedy (1942) Professor Jurisprudence at Harvard. He is one of the key figures behind the Critical Legal Studies Movement. Learning Activity: Read Kennedy's Legal Education as Training for Hierarchy. Does it mirror your own legal education? Optional extra: Interested in Kennedy and the emergence of the Crits? https://podcasts.apple.com/us/podcast/critical-legal-theory/id1634968201 Where are the crits now? It is not so much that CLS is dead, as is some-times remarked, but rather, that its key insights have been subsumed within other perspectives. It can be seen in the following: Critical Race Theory Feminist Legal Theory Psychoanalytical Theory Postmodernism Law and Literature Queer Legal Theory Law and Popular Culture Cultural Legal Studies Comics and Law. Next week: Critical Race Theory. Jurisprudence Week Seven Critical Race Theory From CRT to Whiteness studies Where does Critical Race theory come from? the heir to civil rights scholarship an offshoot of Critical Legal Studies What is the CRT project? -6) Foundational questions that underlie CRT and the law include: How does the law construct race?; How has the law protected racism and upheld racial hierarchies?; How does the law reproduce racial inequality?; and How can the law be used to dismantle race, racism, and racial inequality? Derek Bell (1930-2011) foundational to CRT. His most significant book is Race, Racism and American Law (1973, Little Brown & Co.; 6th ed., 2008). -convergence is especially s people achieve civil rights victories only when white and black interests Brown v Board of Education and the InterestConvergence Dilemma (1980) Harvard Law Review 93 (3): 518-533. At a against the neutrality of the Supreme Court in the 1954 case of Brown v. Board of Education (which led to the end of state-mandated segregation in public schools), Bell took him seriously. The Court has increasingly erected barriers to achieving the forms of racial balance relief it had approved earlier. Plaintiffs must now prove that the complained-of segregation was the result of discriminatory actions intentionally and invidiously conducted or authorized by school officials. racist by consequence even if by intention they are not. Ergo, the argument was that Brown legal invalidation of racial segregation in education held some benefits for white policymakers as well as for Black students. Kimberlé Crenshaw (1959 Professor of Law at ULCA Law School and Columbia Law School. Crenshaw is famous for coining the term intersectionality: see Crenshaw, Kimberle "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8. What is intersectionality? Jurisprudence and discourse as a social artifact which operates to recreate and legitimate American society. In order to discover the contingent character of the law, CLS scholars unpack legal doctrine to reveal both its internal inconsistencies (generally by exposing the incoherence of legal arguments) and its external inconsistencies (often by laying bare the inherently paradoxical and political Cr focus of their critiques may differ, the Critics all premise their views of transformative possibility on the necessity of critically engaging dominant have made more than a token effort to address racial domination specifically, and their work does not seem grounded in the reality of the racially See, Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law (1988) 10 Harvard Law Review 1331 (extracted in Freeman). Crenshaw argues that as much as there is some merit in the Crits positionwhere does it take us? The Critical emphasis on deconstruction as the vehicle for liberation leads to the conclusion that engaging in legal discourse should be avoided because it reinforces not only the discourse itself, but also the society and world that it embodies. Yet Critics offer little beyond this observation their focus on the legitimating rights rhetoric seems to suggest that once rights rhetoric has been discarded there exists a more productive strategy for change, one which does not reinforce existing patterns of domination. Unfortunately, no On the dilemma of rights discourse for CRT scholars: Rights have been important. They may have legitimated racial inequality, but they have also been the means by which oppressed groups have secured both entry is formal equals into the dominant order and the survival of their movement in the face of private state repression. The jewel role of legal change creates A dilemma for black reformers. As long as racist race consciousness thrives, blacks will often have to rely on rights rhetoric when it is necessary to protect black interests. The very reforms brought about by appeals to legal ideology, however. seem to undermine the ability to move forward toward a broader vision of racial equality. In the quest for racial justice, winning and losing have been part of the same experience. See, Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law (1988) 10 Harvard Law Review 1331 (extracted in Freeman). Jurisprudence What is CRT/ What is not? What it DOES NOT assert: (1) One race or sex is inherently superior to another race or sex; racist, sexist, or oppressive, whether consciously or subconsciously; (3) An individual should be discriminated against or receive adverse treatment (5) An individual, by vi for actions committed in the past by other members of the same race or sex; (6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the See David Miguel Gray, https://theconversation.com/critical-race-theory-what-it-isand-what-it-isnt-162752 Hamilton, Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory, 28 Wm. & Mary J. Race, Gender, & Soc. Just. 61 (2021) Key Themes of CRT Meyerson identifies five key themes in CRT 2. CRT attacks colour-blindness and the idea that racial equality involves extending identical treatment to members of different races 3. CRT scholarship is committed to analysis employing the concept of intersectionality 4. CRT places great emphasis on the role of storytelling and narratives in exposing racism 5. CRT emphasises the value of rights to members of minority groups 1. o groups are swamped by their similarities and by the range of differences existing within groups themselves. Races exist, then, because we pick out certain features, such as skin colour, decide to notice them and not others, and ascribe importance to them, Delgado and Stefanic, quoted in Meyerson 375) o concept of race is, however, now g o climate of taxonomy, that is, a scholarly context in which the proper purpose of studying the natur (Davies 305) Jurisprudence o 306) h emerged out of early modern thought can o 308) o te its reality: it is o presumption that race determines characteristics such as intelligence, work ethic, and moral fibre. Specifically, it is usually the presumption that white people are naturally or (Davies 310) o basis of race is not merely a prejudice held by some individuals, whether and its inbuilt hierarchical presumptions are embedded in the Western world- o o recognise that this systemic racism runs into and shapes the institutions (Davies 313) certainly do exist. And they are precisely the reality of race. Race does not 2. CRT attacks the idea of colour-blindness -blindness, that is, the idea that race is an irrelevant category, which law should ignore, and that racial equality involves extending identical treatment to members of different erson 375) o The attempt to see all people as ideally equal masks the fact that people o o o -blindness obscures the fact of white supremacy, because it permits officials, decision-makers, and ordinary people to believe in an illusion of ents to objectivity, neutrality, and colour376) 3. CRT and intersectionality o those who are subject to more than one system of subordination are called Jurisprudence subordination intersect to produce a distinctive kind of disadvantage and a 4. CRT and storytelling their own stories as a way of challenging o style is also intended to give us a concrete understanding of how the law o storytelling in contemporary law and legal scholarship, the stories, chronicles, tales, parables, and autobiographical narratives of minority scholars may perform powerfully convey at least something of it to those whose own bends quite o Richard Delgado is a strong CRT proponent of storytelling. 5. CRT emphasises the value of rights to members of minority groups o Critical scholars who seek to transform the existing legal and social order, minorities have insisted on the need to incorporate the concrete, practical realities of oppressed people into o ng a race-conscious form of legal theory, Critical Race (Meyerson 377) o From CRT to Whiteness studies From CRT to Whiteness studies influenced by slavery and the civil rights movement, many of the points it makes about the inadequacy of current legal approaches to race are more general and can be extended outside the US context. For instance, it has obvious relevance 1. The history of Australia rests on racial categorisation 3. Modern Australian law has expunged virtually all references to race the paradox of racial Law and Whiteness 1. Whiteness is an invisible but raced identity Jurisprudence unconsciousness of speaking from a perspective, or as a -9) 2. Whiteness is culturally dominant , because of their and Marchetti 142) 3. Whiteness is the standard Marchetti 142) ian legal system is that it applies universal law equally Marchetti 140) concepts of race have shape (Ransley and Marchetti 139) (Ransley and Marchetti 139) Marchetti 140) Critical Judgement Projects Nicole Watson and Heather Douglas (eds), Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision-making (Routledge 2021) The new judgments are characterised by intersectional perspectives which draw on postcolonial, critical race and whiteness theories. Several scholars have chosen to operate within the parameters of legal doctrine. Some have imagined new truth-telling forums, highlighting the strength and creative resistance of Indigenous people to oppression and exclusion. Others have rejected the possibility that the legal system, which has been integral to settlercolonialism, can ever deliver meaningful justice to Indigenous people. Learning Activity: Kartinyeri v The Commonwealth (1998) 195 CLR 337 What are the facts of the original decision? On what basis did the plaintiffs assert that the Hindmarsh Island Bridge Act 1997 (Cth) was invalid? How How does the court conceptualise the race power? What is the significance of Jurisprudence Cast your mind back to our discussion of Milirrpum v Nabalco. In what ways did that case underline the Whiteness of Australian law?2 The Yolngu People brought an action in the Supreme Court of the Northern Territory claiming that they possessed native title rights over their traditional land. Blackburn J held that native title was not part of Australian law and even if it was, it would have been extinguished since the arrival of European settlers. Further, he said, the Yolngu had not maintained a connection to the land so native title could not be proven. Blackburn J did, however, recognise that the Yolngu had a system of law that had continued since the start of colonisation, but that this system did not provide them with property rights. Blackburn J considered himself bound by the Privy Court decision in Cooper v Stuart, which held that English common law arrived with the settlers and applies to all parts of the settled land (Blackburn J, 242). Blackburn J found that the Yolngu People had continued to observe a system of laws and customs, going as far as concluding that 'if ever a system could be called "a government of law, and not of men",' it was the Yolngu system (Blackburn J, 267). However, his Honour could not find it existed in Australian law, nor could he legally recognise that there were settled people in Australia before English settlement. Blackburn J rationalised his position by saying that less civilised people may be displaced for the furtherance of a more advanced group. This remained the common law position on native title for more than 20 years, until the High Court's Mabo (No 2) decision in 1992 overturned terra nullius and recognised native title in Australia. This decision was also subject to a re-write in the Indigenous Legal Judgments Project, Watson and Douglas(eds). Routledge (2021). Osca Monaghan (a non-binary, mixed raced, Guugu Yimithirr lawyer with the Aboriginal Legal Service) was tasked with re-writing the decision. They argued Indigenous judge necessitates a resistant and critical distance from colonial power. The question indigenous resistance, or is it too firmly imbricated with colonial power? *The no Sister Outsider. (1984) Additional multimedia sources Although there are no real equivalents for some of the reading in the course, there are helpful resources to augment your learning in the course. For 'traditional' legal theory I think Scott Shapiro's Legality podcast is great: https://podcasts.apple.com/gb/podcast/jurisprudencecourse/id1505117036 For critical legal theory, I thought this series about Duncan Kennedy and the Crits was quite good: https://podcasts.apple.com/us/podcast/critical-legaltheory/id1634968201 Jurisprudence When it comes to Critical Race Theory, there is a lot of dross out there because CRT has become so politicised. Generally speaking, I would recommend anything by Kimberle Crenshaw: https://www.youtube.com/watch?v=KNKbGFoYC1Q and https://w ww.youtube.com/watch?v=akOe5-UsQ2o&t=282s Next week: Feminist legal theory Week Eight Feminist Theory Background Feminist legal theory (or, feminist jurisprudence) emerged in the 1970s. In some respects it is also seen as an off shoot of Critical Legal Studies- women Of course, feminist thought predates the emergence of feminist legal theory by a few centuries759men but rather lack education. Regarded as one of the founding feminist philosophers, Wollstonecraft argued that men and women ought to be treated as rational beings. John Stuart Mill (1806-1873) and Harriet Taylor Mill (1807-1858) jointly authored The Subjection of Women and (1869) The Enfranchisement of Women (1851) Enfranchisement: Even if every woman, as matters now stand, had a claim on some man for support, how infinitely preferable is it that part of the income women, a woman who contributes materially to the support of the family, cannot be treated in the same contemptuously tyrannical manner as one who, however she may toil as a domestic drudge, is a dependent on the man for subsistence (H. T. Mill, [CW], 60 1). The Simone De Bouvoir, The Second Sex (1949) (pictured) Betty Friedan, The Feminine Mystique (1963) Germaine Greer, The Female Eunuch (1971) Kate Millet, Sexual Politics (1970) Law is Gendered/ Legal Theory is Gendered esentation of the world, like the world itself, is the work of men; they describe it from their own point of view, which they confuse with the absolute Ours is a patriarchal world; men have made the legal world in their own image What do we mean when we say that the law itself is gendered? Men have written, and continue to write the law Jurisprudence What does it mean to say that legal theory is gendered? Men have written legal theory The legal theory which assume that it is possible to achieve a general explanation or description of law: in the process of constructing such a description, legal theory has often excluded knowledges emanating from non-dominant -blind approach to legal scholarship is problematic, since the claim of neutrality is often a coverstory for male223) Feminist Legal Theory: An Introduction There are varieties of feminist legal theory Li which the law reflects and perpetuates a dominant perspective, which is in terms of their gender, rac They maintain that, although it pretends otherwise, the law is not neutral or impartial in its treatment of men and women. Instead, it systematically reflects, In general, feminist legal theories are concerned with the ways law has excluded, marginalised and oppressed women Femi a set of identify the gender implications of rules and practices which might otherwise into account the experiences and values that seem more typical of women than of men, for whatever reason, or how existing legal standards and concepts might disadvantage women. The question assumes that some features of the law may be not only non-neutral in a general sense, but also The Varieties of Feminist Legal Theory different movements in feminist thought. But what unites feminist legal theorists is a belief that society, and necessarily legal order, is (Freeman 1081) 1. Liberal feminism 2. Cultural (or difference) feminism 3. Radical feminism 4. Postmodern feminism Jurisprudence 1. Liberal feminism rights-bearing, autonomous human beings. Rationality, individual choice, equal rights and equal opportunity are central concepts for liberal political theory. Liberal feminism, building on these concepts, argues that women are just as rational as men and that women should have equal opportunity with men to exercise their right to make rational, selfquoted in Freeman 1105-6) Criticisms of the liberal feminist approach: i) assimilationist approach ii) a model of formal equality iii) changes focussed in the public sphere iv) only a minority of women advantaged 2. Cultural (or difference) feminism Highlights the differences between men and women Women as connected: ethic of care Men as separate: ethic of justice (West, quoted in Meyerson 355) respective spheres a protector and defender. The natural and proper timidity and delicacy which belongs in Meyerson 347 3. Radical feminism Radical feminists reject Pictured: Catherine MacKinnon (1946)- radical feminist scholar, lawyer and activist. MacKinnon is a Professor of Law at University of Michigan Law School. Between 2008- 2012 she was special advisor to the Prosecutor of the International Criminal Court. Her most significant books include: Sexual Harassment of Working Women: A Case of Sex Discrimination (1979)Towards a Feminist Theory of the State (1989). Are Women Human? And Other International Dialogues (2006). phy (famously associated i) women are a class dominated by men distribution of power. Men dominate women. Freeman 1108) ii) the power of men is directly linked to sexuality Jurisprudence oppression, and the sexual abuse of women is the indispensable mechanism by which women are subjugated. Power and sexuality are therefore central to iii) the dominance of men over women is fundamental to the legal system ead of equality, radical feminists in the MacKinnon camp argue for changes in laws that will 4. Postmodern feminism Key themes rejection of grand narratives the instability of categories: deconstruction Postmodern feminism and legal theory in Freeman 1110) Feminist Legal Theory and the Concept of Equality Liberal Feminism: formal equality before the law Difference Feminism: legal change that supports the different values women hold compared to men Radical Feminism: equality for women requires the affirmative protection of women and their liberation from the dominance of men Postmodern Feminism: focus on the particular and diverse situated realities of women sexual object. Cultural feminists see her as caring and connected to others. Finally, postmodern feminists see her as so overly-determined that she is an Significant and overarching critique of feminist legal theories its failure to account for race. We see this in the emergence of the concept of intersectionality. (see for e.g Crenshaw used the term intersectionality to refer to the double discrimination of racism and sexism faced by Black women, critiquing the "single-axis framework that is dominant in antidiscrimination law.. feminist theory and antiracist politics" for its focus on the experiences of the most privileged members of subordinate groups. Specifically, Crenshaw highlighted legal cases wherein women were required to choose between bringing a claim of racism or sexism and could not say that Jurisprudence they had been discriminated against due to the combined effects of race and sex. but for gender, they would not have been disadvantaged. For them there is no need to specify discrimination as white females because their race does not contribute to the disadvantage for which they seek redress. The view of discrimination that is derived from this grounding takes race privilege as a given. Discrimination against a white female is thus the standard sex discrimination claim; claims that While it could be argued that this failure represents an absence of political will to include Black women, I believe that it reflects an uncritical and disturbing acceptance of dominant ways of thinking about discrimination. Consider first the definition of discrimination that seems to be operative in antidiscrimination law: Discrimination which is wrongful proceeds from the identification of a specific class or category; either a discriminator intentionally identifies this category, or a process is adopted which somehow disadvantages all members antidiscrimination law addresses is the use of race or gender factors to interfere his process-based definition is not grounded in a bottom-up commitment to improve the substantive conditions for those who are victimized by the interplay of numerous factors. Instead, the dominant message of antidiscrimination law is that it will regulate only the limited extent to which race or sex interferes with regulate the public domain, understood as encompassing state and market institutions, while traditionally i) private inequality is the source of pubic disadvantage ii) the world of private relationships is imbued with the politics of power iii) the problems faced by women are a function of systemic injustice against women as a group On Matters of Exclusion: The Legal System & The Legal Profession gender and race and class. This shaped the resulting document in important ways. Underscoring the exclusionary origins of the Constitution and the wider legal This is a much longer history that is neither unique to Australian or the legal profession. Over the course of the twentieth century (and in some cases, earlier)women agitated for reforms which would see them accepted (at least in principle) on equal footing to men in parliaments, courts, and other public and private institutions. Jurisprudence women acqu office, as maleness was equated with humanness and accordingly with connected to the British Empire) special enabling legislation was required to should be permitted to practise law on the basis that they were persons within the meaning of the relevant statutory provisions. These cases provide important profession was vigorously denied by those who already had power within it, but also, the myth of neutrality informing legal method itself. This material is drawn from: McLoughlin, Law Women Judges and the Gender Order: Lessons from the High Court of Australia, Routledge 2022 (specifically chapter 1, The masculine foundations of Aust In 1904 Edith Haynes applied to the Western Australian Supreme Court seeking a mandamus that she be admitted as an articled clerk, but was unsuccessful the three judges presiding declined to accept that a woman was a person within the meaning of the Legal Practitioners Act 1893(WA).In separate but concurring judgments the three men judges Parker, McMillan and Burnside JJ pointed to United States, Canada and of course, England) for admitting women lawyers. indeed, the judicial role itself) is aptly summarised by Burnside J in his judgment: It is a privilege which has been conferred by the Courts originally, and then been regulated subsequently by Statute from almost time immemorial, and which has been confined to the male sex. I agree with my learned brothers, confers the right on women, then we shall be pleased to admit them. But we must leave it to the legislature to decide on the desirability or otherwise of such legislation. lawmaking using the law and legal method as a cloak or shield for their own Dissonance and Distrust, (1996):59) This material is drawn from: McLoughlin, Law Women Judges and the Gender Order: Lessons from the High Court of Australia, Routledge 2022 (specifically Gender and Judging In forgi in effecting the perversion of the feminine in its portrayal of it as a homogenous may bring a different perspective to judicial adjudication began to gain traction. Jurisprudence In many ways this involved considering the transformative effect women may have in positions of legal authority and thereby grappling with the probing question put by Carrie Menkel-Meadow (1985 system look like if women had not been excluded from participating in its . See: Menkel-Meadow, C. 1985. Portia in a different voice: Speculations on a : 39-63. Thornton, M. in Barnett, H. 1996.Sourcebook on Feminist Jurisprudence. London: Cavendish Publishing Limited A potential answer to Menkeldichotomous conce to moral judgments effectively catapulted feminist theory into a multifaceted part informed by a case study in which she put a dilemma to two children, Jake and Amy, who apart from their gender differences were similar in levels of intelligence, education and social class. In the dilemma, the children were asked to advise Heinz whether he should steal a drug(which he cannot afford) in order to save his wife who will die without this drug. Gilligan, C. 1982.In a Different Voice: Psychological Theory and Women's Development.Cambridge (Massachusetts): Harvard University Press. For Jake, it was obvious that Heinz should steal the drug. Jake constructed the ned that in the event that Heinz was steal the drug but property rights or the law that imposes those rights but rather, the effect that the theft could have on the relationship Heinz has with his wife (Gilligan 1982:28). debates regarding gender and judicial adjudication cannot be overstated. While framework upon which feminist legal scholars could further agitate for and justify appointing women judges, it is perhaps not surprising that this was precisely what happened. The appointment of women judg gender blindness. Has the appointment of women judges transformed the law in the ways that were hypothesised by feminist theorists in the 1980s? Jurisprudence As women began to be appointed to the judiciary in larger numbers throughout the late 1980s and early 1990s the scope to assess the women judges was expanded not only by reference to the empirical studies, but also by assessing the publicly expressed views of women judges themselves. In some instances, the women who were appointed were willing to respond to the claims that they, by virtue of their gender, spoke in a different voice. Extra-curial writings and speeches from judges have shown that some women who are supposedly endowed with a different voice are reluctant to accept this characterisation. In Canadian Supreme Court Justice Wilson (1990: 515) opined that while there willing In a somewhat cautious conclusion Justice Wilson preferred to focus on how women judges may make a difference rather than speak in a different voice, an understanding of what it means to Wilson, B. 1990. Will Women Judges Really Make a Difference? Osgoode Hall Law Journal. 28: 507-522. Similarly, Baroness Brenda Hale asserted that women do not want to claim a d be manifestly inaccurate in many (Hale 2001: 489). By 2010 Baroness Hale had shifted her position. Writing in her Foreword to the UK Feminist Judgments Project she did not so much adopt of life to the interpretation or development of law or to its application in individual In effect this was merely to allow that women judges, like men judges, exercised their legal knowledge through the filters of their life experiences, and by extension that men judges had absorbed their experiences into a cloak of neutrality that magically appeared upon entry into the jurisprudential community. Yet for women, entry into this community might highlight (rather than diminish) the existence of certain gendered barriers and challenges. For instance, Mary Gaudron (1997) spoke to a similar transformation in her views about women and the law: I have no that I then shared, namely, that once the doors were open, women could prove that they were every bit as good, and certainly no different from their male counterparts. The truth is that, in some respects, we are the same but, in others we are different. And when we admit that difference, when we assert our right to be different, we are going to be significantly Hale, B. 2001. Equality and the Judiciary: Why Should We Want More Women Judges? Public Law. 489-504; Hale, B. 2010. Forward. In R. Hunter, C. Jurisprudence McGlynn, and E. Rackley eds. Feminist Judgments: From theory to practice. Oxford: Hart Publishing; Gaudron, M. 1997. Australian Women Lawyers. Speech, 19 September. Melbourne: High Court of Australia. URL: <http://www.hcourt.gov.au/assets/publications/speeches/formerjustices/gaudr onj/gaudronj_wlasp.htm>. Feminist Judgement Projects theorists have posited that itis more plausible to expect feminist rather than women judges to make a difference insofar as their approach to legal reasoning is concerned(e.g. Kenney 2013: Hunter 2008): Hunter, R. 2008. Can feminist judges make a difference? International Journal of the Legal Profession15(12): 7-36. One important contribution of various feminist judgment writing projects has been in demonstrating the potential for gender sensitive (feminist) decisions in areas of law not hitherto conceived as gendered or obviously concerning women. By rewriting well known judgments and infusing them with feminist reasoning feminist theorists have therefore sought to demonstrate the plausibility and possibility of feminist reasoning across a wide range of substantive areas of law. The idea for the English Feminist Judgments Project came from the judgments of major judgments of the Canadian Supreme Court in respect of the equality clause in the Canadian Charter of Rights and Freedoms. Rosemary Hu women and other marginalised actors, challenging gender bias both on legal doctrine and judicial reasoning, reasoning from context and with experience, trying literature). (Hunter 2010: 35). See Hunter, R. 2010. An Account of Feminist Judging. In R. Hunter, C. McGlynn, and E. Rackley, eds. Feminist Judgments: From theory to practice. Oxford: Hart Publishing. PGA v R PGA is a curious decision both in reasoning and circumstance. Although the High Court had earlier made clear in R v L that the marital immunity was no longer law, they were not called upon to determine the particular timing of this shift. How then did Mr PG find himself in the High Court High Court for events alleged to have occurred well over forty years ago in 1963? The complaint emerged from evidence given by GP at the Mullighan Inquiry into the sexual abuse of children, which was in turn referred to police. For much of the latter part of last century it was statute barred. However, with the passage of the Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences)Amendment Act 2003 prosecution for rape was lifted. Jurisprudence * See, McLoug Law, Women Judges and the Gender Order: Lessons from the High Court of Australia, Routledge 2022. The High Court determined that the issue before the Court was: whether the appellant is correct in his contention that, as a matter of the common law, upon their marriage in 1962 his wife had given her consent to sexual intercourse and thereafter could not retract her consent, at least while they remained lawfully married, with the result that he could not be guilty of raping her as charged. In many ways the decision might be understood as an examination of the But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract. to be? Does the common law just evaporate? prosecuted in 1963). Majority (emphasized moveable and changing nature of the common law) Week Nine What are Human Rights Legal rights vs human rights Human rights are basic moral guarantees that people in all countries and cultures allegedly have simply because they are people independent ethical demands fundamental universal used, in particular, for the most fundamental moral rights that are possessed by all humans, wherever they live and regardless of (Meyerson 239-40) The concept of human rights is a significant development from natural rights to human rights This term was used to indicate that the rights in question are not conferred on us as a matter of conventional social or legal arrangement, but are possessed simply in virtue of our nature as human being or in virtue of natural law. Such rights. I no longer tide to ideas of nature or natural law, and they are now usually referred to as human rights. The term human rights is used in particular for the most fundamental moral rights that are possessed by all humans wherever they live and regardless of the factors that differentiate them, such as race, religion, (Meyerson, 240) Jurisprudence 2. WHAT DOES IT MEAN TO SAY WE HAVE HUMAN RIGHTS? What does it mean to say we have human rights? dignity 2. rights have priority: fundamental human rights take precedence over collective goals 3. rights are against the state: human rights impose obligations on the state 1. Rights are an expression of personhood, and reflect human dignity: Immanuel Kant (1724-1804) human dignity humans as ends in ourselves The concept of dignity has replaced the idea of God or nature as the foundation of inalienable rights Early criticism of rightsUtilitarianism tells us that there is only one principle of morality, namely to produce the greatest balance of happiness over unhappiness, both in our personal dealings with others and in the context of social decision making. Jeremy Bentham was one of the earliest utilitarians he insisted on the separability of law and morality. But still believe that morality should inform law. And it is a utilitarian morality that he thought should guide all legislative activity and legal institutions. For Bentham then, the notion of human rights was Bentham was deeply hostile to the notion of moral or natural rights, as his scathing attack on the 1789 French Declaration of the Rights of Man and the Citizen demonstrated. Bentham's hostility to the idea of natural rights is explained in part by the fact he thought it impossible to demonstrate that we have such rights- or what their content might be. He thus concluded from this that the only rights are legal rights. He said that no one can be said to enjoy a right unless someone else is liable to suffer a legal sanction for failing to respect that right in the absence of a sanction, according to Bentham, claims a right, a mere wishful thinking. His argument, then, is that those who put their interests ahead of the general good are egotistical or selfish (see Meyerson 255)Utilitarianism is a consequentialist theory. It measures the rightness or wrongness of our actions solely by reference to their consequences and by reference to a particular set of consequences, their effect on human happiness. Furthermore, it is a maximising theory in the sense that it says the best course of action is one which achieves either the highest average or the highest total happiness compared to alternative courses of action. At first glance. Utilitarianism is very appealingLet us work through some examples which might illuminate the limitations of utilitarianism (all extracted from Meyerson). Consider the following examples, which are often used to make the point about the possible conflict between utilitarianism and rights. Suppose the police have Jurisprudence captured a terrorist who has planted a bomb in a sports stadium packed to capacity. Let us suppose that there are 100,000 people in the stadium. The terrorist refuses to disclose the location of the bomb and the police know it is about to explode. The terrorist is immune to torture but the police have also captured his small child and they know that if they torture the child the terrorist will disclose the location of the bomb. Clearly, the welfare of the 100,000 people as well as that of their relatives and friends far outweighs the suffering and even the death of the innocent child. How does this sit with you? The second example involves the punishment of an innocent person. Suppose that a terrible crime has been committed in a small town and the population is in an inflamed state. They believe that particular man is responsible for the crime, although the sheriff knows he is innocent. The sheriff also knows, however, that unless the man is arrested and executed, thousands of people will be killed in rioting. Utilitarianism seems to tell the sheriff to make scapegoat of the innocent man so as to prevent the loss of many lives. After all, the unhappiness caused to the innocent man will be far outweighed by the benefits to all the other inhabitants of the town. But once again this is strongly counter-intuitive insofar as it requires the sheriff to violate the rights of the innocent man. The third example involves satisfying illegitimate or reprehensible preferences. Suppose that the majority in a society are racists who strongly dislike and wish to persecute a racial minority. Because utilitarians treat all preferences as on a par regardless of their content, utilitarian decision-makers will allow the majority to oppress the minority if the satisfaction this brings the majority outweighs the harm done to the minority. Rights theorists, by contrast, believe that some preferences are illegitimate and should not be taken into account in deciding what to do, no matter how intensely felt or widely shared these preferences may be. They argue that it is not appropriate to balance some people's racist preferences against other people's interest in not being discriminated against. Are rights an instrument of oppression? We have already considered this question, albeit briefly, in our examination of Marx also saw rights as serving the interests of those who wield power in society. Marx thought that rights would not be necessary in a socialist society (where private ownership of the means of production has been eliminated, removing with it class divisions) 2. WHAT DOES IT MEAN TO SAY WE HAVE HUMAN RIGHTS? 2. Rights have priority: fundamental human rights take precedence over collective goals Certain rights take primacy over considerations of the general welfare Rights-based thinking vs utilitarianism deontological vs consequentialist theories rights when, for some reason, a collective goal is not a sufficient Jurisprudence justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury on Dworkin, Taking Rights Seriously (1977). Dworkin allows for the possibility that rights, or at least fundamental rights, maybe violated in really exceptional circumstances, where there is a sufficiently grave and demonstrated threat to society, rights might be justifiably infringed. For instance, freedom of speech might be infringed reward type in order to avoid defeat. But since by definition rights pick out certain interests for special protection largely if not entirely, immunising them against their overridden in the public interest, rights cannot be overridden merely because the benefits of doing so would outweigh the costs. 3. WHAT DOES IT MEAN TO SAY WE HAVE HUMAN RIGHTS? 3. Rights are against the state: human rights impose obligations on the state A right is a justifiable claim or entitlement The focus on state power The obligations of the state 4. WHICH RIGHTS? Preamble to the UDHR: barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights shoul Article 2: without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social orig