Part I: Foundations of Anglo-American Legal Systems - Cans DB

 TOC \h \u \z Part I: Foundations of Anglo-American Legal Systems PAGEREF _kqug01sxn71m \h 1Legal Positivism PAGEREF _ic7t9bik2lvk \h 1Positivism Part 2: Kelsen PAGEREF _cnhdiyfamgda \h 4Natural Law PAGEREF _1mp0ygdrnean \h 5Ronald Dworkin and Interpretivism/Constructivism PAGEREF _49rjir5sjr1h \h 8Review: The Speluncean Explorers PAGEREF _ji9gic4i543w \h 10Part II: Justice and the Rule of Law PAGEREF _h9n03579bm58 \h 12The Rule of Law PAGEREF _ouj9pgau9033 \h 12Theories of Justice PAGEREF _5lffh2p89rz2 \h 14Legal Realism PAGEREF _umqv9tgscljf \h 15American Legal Realism PAGEREF _1f4uava19r0v \h 15Critical Legal Studies PAGEREF _wb5u64hf6l \h 17Legal Theory, Feminism and Gender PAGEREF _zbrcu2l4x36s \h 19Global Justice PAGEREF _eetnjasugq9x \h 22Indigenous Theories and Perspectives of Law PAGEREF _keixbs3knao3 \h 25Part I: Foundations of Anglo-American Legal SystemsLegal PositivismHart & PredecessorsWhat’s positivism? ““Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits.”Whether a rule or principle counts as law in a given society is a matter of nothing but social convention; more specifically, the law for a given society is just whatever has been enacted by the lawmaking agency of that society.Positivism vs. Natural LawNatural law seems to believe that there are objective moral facts that laws must draw on ? assumes objective moral principles that can be attained through reasons ? NL theory assumes that there is a higher order of law that exists independent of human positive made law, against which human law can be judged -> positivist law must conform to these natural ideals or there will be problems“Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative? for example, legislative enactments, judicial decisions, or social customs.””5 Principal Tenets of Positivism (HLA Hart)1) That laws are the commands of human beings;2) That there is no necessary connection between laws and morals;3) That the analysis of legal concepts is (i) worth pursuing, and (ii) distinct from sociological and historical enquiries;4) That a legal system is a “closed logical system” in which correct decisions may be deduced from predetermined legal rules by logical means alone; and5) That moral judgments cannot be established, as statements of facts can, by rational argument, evidence or proofLeading Positivist ScholarsJeremy Bentham (1748 – 1832); andJohn Austin (1790 – 1859)H.L.A. Hart (1907 - 1992)Hans Kelsen (1881 – 1973)Bentham’s Critique of Rights:“Right … is the child of law; from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.”Utilitarianism: We judge everything by its overall consequences, whether it produces more good than bad -> this applies to law tooThe Sovereign is Essential to Positivist Law -> John AustinSovereign as source of legal authority, not nature;Law as sovereign ”commands” backed by “sanctions”;Legal systems are identified by patterns of command and obedience without recourse to morality;HLA Hart vs. John AustinHart believes that law is broader than commandsLaw actually gives people powers and privileges too: e.g. civil liberties, freedoms, etc. -> this is the opposite of coercion!It gives us powers too: law of contract, law of torts, etc.Law normally constrains the coercive power of the state Rule of recognition: Hart objected to Austin (normativity of law arises from people’s ability to predict sanctions) because deviations from rules are seen as justifying the reaction/sanction?; why do people see legal rules as justifying this in the first place though? “According to Hart, a society's legal system is centered on rules. There are primary and secondary rules of obligation. The primary rules prescribe how a person should act in society and the secondary rules are rules by which the primary rules are created, identified, changed, and understood. A rule of recognition is a secondary rule that instructs citizens on when a pronouncement or societal principle constitutes a rule of obligation/primary rules.”“Internal aspect of law” as a rejection of Austin’s reliance on sanctions: to understand legal system need to look to what people w/i think about its operations, command theory? obedience about more than fear of sanction but because we feel like it’s good thing to do? we don’t think the law is good, but following/obeying the law is good. the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality.Hart and law as “Open Textured”“Core of Settled Meaning”: Laws could not communicate unless there was some settled meaning for the terms they use. That is, the people to whom the laws are addressed have to have some understanding of what they are meant to do under the law. These are obvious. “Penumbra of Doubt”: But for many laws, there will be a “penumbra” of cases that are not settled by the law -> e.g. law not allowing vehicles in park implies no automobiles, but what about bicycles? Language is imprecise and legislators sometimes do not think about all possible uncertainties This is where judicial discretion will come into play“Open Texture”: These are situations in which rules simply run out and penumbra of doubt persists. Hart describes this as "open texture" and argues that judges are left to their own discretion in these situations. 1. Words on a page are unable to constrain a particular result. Words can always be interpreted differently, which allow for a variety of results vis-à-vis the same words2. It is morality what matters, reaching the fair result, not the fact that a rule is written or made by the legislature3. Hart and American Realism – AR says rules of little importance in understanding law. It is what the judges do, the final say, the result, that matters4. Against natural law: Judges decide based on moralityHart and DiscretionDiscretion is when a judge gets to decide how to interpret the law – decide which way to go among reasonable possibilitiesIssues? Law does not finalize the decision, but an unknown factor unique to the judge – discretionPer Hart: The penumbra of doubt creates discretion. It is inevitablePositivism Part 2: KelsenRecall: Positivism says the law is based on and defined by existing social entities (such as courts, legislatures, and status), not on universal ideals or morals (ethics, gods, mere ideals of justice)Hans Kelsen and the Pure Theory of LawThere is one norm that generates the legality of all legal systemsHK wants to explain law as completely separate from all other disciplines, as a science by itself: no politics, no bias, no sociology, etc. Non-reductive account of law: not reducible to other disciplines (sociology, anthropology, history, economics, etc.) “A Pure Theory of Law”: it only describes the law and attempts to eliminate from the object of this description everything that is not strictly lawLaw and NormativityNormative means “ought to”. For a normative theory, we observe how societies attach normative meaning to certain actions and events, like people raising their hands in a parliament with respect to a string of words, to create law. A normative theory asks why do certain acts and events create legal meaning and others don’t?Kelsen and Normativity: “An act or an event gains its legal-normative meaning by another legal norm that authorizes its creation in that way” (seems kind of similar to Rule of Recognition)Normative claims can only be grounded/justified by other normative claims, and these lines of claims must at some point comes to an endThe Russian doll theory, basically. At one point, you cannot go any further. You will eventually reach the basic norm, the grundnorm, which is not defined in any legal system, but is present in them allGrundnorm is the foundational norm: it tells us that following the law is good and just Because all norms derive their validity from a higher norm. It is an infinite regress to the higher norm -> A CHAIN OF LEGAL CONNECTIONSHart vs Kelsen: What are the similarities and differences between Hart’s rule of recognition and Kelsen’s grundnorm?H’s theory is meant as an analytical description of actual practices (sociological? anthropological?), while K sought a theory purified even of sociological observation, and is best understood as a neo-Kantian transcendental deduction from the fact that we treat certain rules as legal normsKantian transcendental norm: We are all alive, so we all have mothers; necessarily, we all have mothers. Same with norms: They are legal norms, so they all come from the grundnormMethodology: Hart is concerned w/actual practices and the use of language in legal institutions, while Kelsen is more concerned w/a logical analysis of law and legal thinking (“neo-Kantian transcendental deduction from the fact that we treat certain rules as norms”)Natural LawWhat is natural law? The essence of natural law lies in the assertion that there are objective moral principles that depend on the nature of the universe and which can be discovered by reason (Lloyd) -> kinda like discovering the grundnormSource of natural law: a close connection between truths about human nature and the law. Like law crafted for human and social mathematics – a set of values that are binding to all human beingsCicero: “True law is the right reason in agreement with nature; it is of universal application, unchanging and everlasting. It does not lay its commands or prohibitions upon good men in vain. It is a sin to try to alter the law. We cannot be freed from these obligations by the Senate or people, and we need not look outside ourselves for an interpretation of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, with one master, God over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment.’”Leading proponents of natural law: Classical = St Thomas Aquinas (1225 – 1274): Divided law into, (1) eternal law? basic premise that there is a god? (2) natural law? essentially God’s will manifested in nature and discoverable through reason applied to natural world (allows us to distinguish good from evil in the world)? (3) Divine law? law found in scriptures (directs humans in achievement of their supernatural purpose: attainment of the vision of God)? and (4) positive law? law created by humans Natural, Divine law, and positive law had to accord? and positive law was to be derived from natural and divine law? Divine to positive less controversial, however argued that god’s law also found in nature To be just (and thus valid) a law must: (1) be consistent with NL principles? (2) law?makers must not exceed their authority? (3) law should imposed fairly on all citizens Unjust law: There is no obligation to obey it – lex iniusta non est lex (an unjust law is not law). If it conflicts with natural law, it is a pervasion of lawAllows for some discretion though: natural law requires regulation of automobiles for safety of others, it’s up to humans to determine whether the positivist law says we should drive on the left or the right Modern: John Finnis Core rationale for natural law is to “establish what is really good for persons” Basic Goods: Finnis says these are a small subset that contain a limited number of values that are essential to us as humans Subset of limited number of values that are essential to us as human beings, to which Law must be committed. Anything that does not adhere to them is not Law (i.e., legitimate, binding laws – higher set of principles, organized around the basic goods), but law (i.e., non-justifiable laws due to injustice) -> laws are justified based on how they pursue these goodsTHE GOOD: Life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, religion Practical reasonableness: A good and a means of interpreting the others -> one’s ability to use their intellect in deciding choices that ultimately shape one’s nature.1. Structures the pursuit of good generally, in that it helps us to determine how to pursue the other goods2. Involves developing a coherent plan of life;3. Involves avoiding arbitrary preferences with respect to values;4. Involves avoiding arbitrary preferences with respect to people;5. Involves showing respect for every basic value in every act;6. Acknowledges the common good, and acting to advance the interest of the communityStrengths of Natural LawIt provides a rationale for higher lawProvides a normative content of lawPlaces limits on the law, as it must adhere to moral, rational, human, and justice componentsChallenges of Natural LawOverly Abstract: Reproduction: Is abortion always wrong as it goes against life and reproduction?Insensitive to Change: Slavery: Used to be permissible, not anymore. Is this bad? How does natural law account for these changes? Laws in society are always changingInaccessible: We do not know what the main principles, the basic goods, really mean. We cannot go to statues to find our answerInappropriately Universal: It does not allow for cultural variance (legal pluralism is the opposite)Natural vs. Positivist LawNL sees law primarily as a king of reason for action, and argues law can’t be understood except in the context of what would make for a good/moral reason for actionLP focuses on law as a type of social institution and a morally neutral theory of law seems both possible and valuable. Ronald Dworkin and Interpretivism/ConstructivismAlong with rules, legal systems contain principles: principles are det’d by past things, but do not apply in every scenario (unlike rules)If there’s conflicting theories/principles, judges consider a variety of them and reject those that do not adequately “fit” with the law There are always moral standards/principles qualifying rules of lawFor Dworkin, while legal rules needn’t be moral, legal principles “are essentially moral in their content”;? they arise from the ”?best moral and political interpretation of past judicial and legislative decisions in the relevant domain”Principles are propositions like “no man shall profit from his own wrong.” Policies are “goals[s] to be reached, generally an improvement in some economic, political or social feature of the community.”Principles vs RulesOn Dworkin?s view, Hart?s account is incomplete. A complete account of judicial reasoning will include something other than rules. It will also include (what Dworkin calls) principles:Principles, says Dworkin, do not necessitate a particular decision the way that rules do. When a clear rule exists that should be applied to a case, the judge simply applies the rule to decide the case. Principles are not rules, but rather reasons that the judge takes into consideration. A crucial distinction between rules and principles, then, is that rules are applied all-or-nothing, whereas principles have a dimension of weight or importance. When two principles conflict, one principle may supersede another Riggs v Palmer: the judges found that Palmer shouldn’t receive his inheritance b/c of the principle that no one should be permitted to profit by their own misdeed, despite what the law saysMaybe this helps fill in the penumbra of doubt? Constructive InterpretationConstructive interpretation is both an imposition of form upon the object being interpreted (in the sense that the form is not immediately apparent in the object) and a derivation of form from it (in the sense that the interpreter is constrained by the object of interpretation, and not free to impose any form she might choose).Examples of this sort of interpretation are: looking at stars and ?seeing? a constellation in the form of a mythic figure; looking at points on a graph and ?seeing? a line that explains the data in terms of a correlation between variables.Every time a judge is confronted w/a legal problem, they must construct a theory of what the law is (impose form on object) and this must fit the relevant past actions (legislation/jurisprudence) while making the law the best it can be (derivation of form from it)Can include case law, statutes, constitutional documents, etc. -> this is pre-interpretive data that the judge then uses in their constructive interpretationDworkin said that for the purpose of interpretation, the purpose of law is to constrain the exercise of government powerDepends on being able to assign a distinctive value or purpose to the object of interpretation; whether it’s a work of art or a social practice What about competing principles? A judge must sometimes choose between competing interpretations, each of which ?fits? the data to some degree. In choosing, he or she must consider both? how well each interpretation fits (both might fit, but one might fit better than the other, i.e., might be more consistent with all the data);? which one has the greater moral value.Dworkin compares legal interpretation to writing a chapter in a chain novel Key Elements of Dworkin’s Theory of Law:Rejecting model of judicial decision-making as discretion:Good judges cannot make decisions based on political persuasion. Instead, judges must draw on the moral norms of society (Murphy, 43). Judges, then, can not have discretion because they are bound by the principles of the judicial system and society (Murphy, 45).Thus, Dworkin?s view is that ?[a]mong the theories of what the law requires that adequately fit the relevant legal materials, the judge would then choose that theory which was morally best, which made the law the best it could be.What?s more, Dworkin?s view implies that ?for nearly all legal questions, there [is] a unique right answer,? a best interpretation. (Bix p.235, emphasis added) Dworkin?s Hercules character is ?a lawyer of superhuman skill, learning, patience and acumen? (147) who, in nearly all cases, be able to identify the one best decisionthere is an abundance of law and far fewer ?gaps.? As Dworkin sees it, the law includes principles not all of which have been stated explicitly anywhere in the black letter, positive law. Judges have those principles to rely on, so there are far fewer gaps than there would be were Hart?s account true.Integrity: In constructing such an interpretation, judges should try to maintain what Dworkin calls integrity: they should decide cases in a way which makes the law more coherent, preferring interpretations which make the law more like the product of a single moral vision.Law as a “seamless web”: there is little distinction b/w different areas of law, say contract vs. tort vs. property Posits a “right answer” to hard cases:In hard cases, Dworkin claims, judges do not make arbitrary decisions. Rather, judges appeal to something beyond rules - principles. Dworkin says that judges are obligated to turn to principles in the absence of rules (Dworkin, Rights, 82).Dworkin vs. HartWhat are Dworkin’s two main arguments for rejecting Hart’s model discretion? Hart: there are no moral standards in lawDworkin: moral standards are embedded in principles; so of course there is a moral aspect of law Hart: there are gaps in law (penumbra of doubt), and so judges fill that up via discretion (the open texture)Dworkin: since principles are part of the law, there is actually an abundance of law and there are fewer gaps Dworkin as a Natural Law Theorist? This is the way in which Dworkin is a natural-law theorist: he holds that ?moral evaluation is integral to the description and understanding of law,?[12] including to the description of judicial decision-making and to the way in which judges themselves come to understand the law. And that last idea explains how Dworkin?s theory is also an alternative to legal formalism and realism. Review: The Speluncean ExplorersBy Lon Fuller, published in 1949CJ Truepenny: statute is unambiguous, no applicable defences -> they must be guiltyLiteral reading of the statute: strict positivist, law needn’t have a moral component and it is not the role of a judge to import morals when law is clear;Granting mercy is for the executive branch to consider: separation of powersJustice Foster: doesn’t see it necessary to follow the law as it is strictly written“If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error.”Defendants were in a statute of nature at the time of the “offences”, so the laws of nature should apply to them -> it’s reasonable in the laws of nature to sacrifice one to save the group If laws of Newgarth did apply, the purpose of the laws wouldn’t be upheld by convicting the men -> the statute clearly wasn’t meant to apply to these circumstances, so it would be absurd to follow it here “Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose”Kind of like Dworkin: principles are used to construct a coherent view of the law in this particular situationValues and common sense prevail here? Justice TattingFinds himself unable to decide the case Re Foster’s “state of nature” argument: how do we know when we’re in a state of nature? Also, how do we figure out the “true purpose” of the statute? Hard to determine if it would apply here if we don’t know its purposeJustice KeenExcludes discussionbs of executive clemency and morality of defendants’ actionsThe question for the court is applying the statute and determining whether the Explorers wilfully took the life of Whitmore Objects vehemently to Foster’s “purposive approach”, says this is ignoring the plain meaning of the law“How can we know what its draftsmen thought about the question of killing men in order to eat them?”We can’t change the law simply because it’s unpopular: that’s the job of the legislature Whether clemency should be granted is a question for the Chief Executive -> “my remark is made as a private citizen”Clear cut principle: the legislative branch of gov’t is supreme Justice HandyThis case simply requires the application of “practical wisdom” and “human realities” -> courts must contain public’s confidence, and most judges are in agreement that the defendants shouldn’t be convicted It is critically important for good government that the courts deliver rulings that “understanding the feelings and conceptions of the masses” Advocates for a token punishment Verdict: conviction and sentence is upheld -> execution allowed Part II: Justice and the Rule of LawThe Rule of LawJeremy Waldron“The Rule of law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance”Preference for power to be exercised by rules/law rather than personal discretion, whims or decisions Government should exercise power via law, and should be accountable when there is evidence that exercise of power was unlawfulCentral Ideas to the RoL FrameworkPower exercised within constraining frameworkPublic norms not arbitrary discretionGovernment operating in legal frameworkAccountability through that legal frameworkNo entity, institution or actor above the lawAccess to justiceIndependence, accountability, transparencyGeneral norms laid down in advanceReciprocity, freedom, dignityLon Fuller: Criteria That Make Up RoL -> “the inner morality of law”PublicityProspectivelyIntelligibilityConsistencyPracticabilityStabilityCongruenceThe Story of King Rex: tries to implement a new legal system, but it doesn’t work because he doesn’t follow Fuller’s inner morality Fuller?s modern approach to NLT is different; it is procedural, in that it addresses the procedures embodied in a legal system. Fuller proposes that a system of positive law must pass a moral test if it is to be a system of law in the fullest sense, i.e., if it is to be genuine law.These norms also have a moral aspect: they are connected to fairness, not merely following procedureIt must have these 8 pre-conditions to be a morally good legal system: procedural RoL is a necessary (but not sufficient) condition to justice/fairness/moral goodLimits of the RoLForm & Procedure: the RoL is largely about form & procedure and doesn’t have a whole lot to say on substance: it could be argued that the Third Reich was following the RoL? What about the South African Apartheid regime?How does the RoL ward off tyranny if it has no substance? Finnis: “A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt.”Should human rights be included in the RoL framework? Probably““[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is ‘an empty vessel into which any law could be poured’”. - Arthur Chaskalson, former CJ of South AfricaRaz: “the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged”, and that we should not try to read into it other considerations about democracy, human rights, and social justice. Those considerations, he said, are better understood as independent dimensions of assessment.The RoL is a necessary but not sufficient way to foster justiceWaldron: ““In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in officials.. or in the ordinary members of a community”. Theories of JusticeRawl’s Liberal Theory of JusticeRawls’ theory based on idea that society is a system of cooperation for mutual benefit between individuals. “Principles of justice should ‘define the appropriate distribution of thebenefits and burdens of social co-operation”Justice is fairnessVeil of Ignorance & Orignal Position: if we started from a state where we knew nothing about the distribution of wealth/resources in society, we would all probably be inclined to choose a distributive system that prioritizes equality Two Principles of JusticeFirst: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.E.g. Property rights, civil liberties, freedom of religion, etc.Second: Inequalities in the distribution of goods (wealth, authority, etc.) are justified only if (a) they work to the advantage of the worst off persons in society and (b) the positions to which greater goods and authority accrue are open to all persons (EQUALITY OF OPPORTUNITY)Natural law simply distributes wealth based on natural ability, which is morally arbitrary Difference Principlesocial and economic inequalities are morally justified only if they are of ?the greatest benefit to the least advantaged.?Nozick’s Libertarian Theory of JusticeAnarchy, State and UtopiaAnarchy: Nozick defends the existence & authority of the statePrimarily concerned w/distribution of property; justice involves 3 core ideas:1. Justice in acquisition: how you first acquire property rights over something that has not previously been owned2. Justice in transfer: how you acquire property rights over something that has been transferred (e.g. by gift or exchange) to you by someone else;3. Rectification of injustice: how to restore something to its rightful owner, in case of injustice in either acquisition or transfer.Only a minimal state limited to the narrow functions of protection against "force, fraud, theft, and administering courts of law"[7] could be justified without violating people's rightsNozick’s theory of justice claims that whether a distribution is just or not depends entirely on how it came about. By contrast, justice according to equality, need, desert or Rawls’ Difference Principle depends entirely on the ‘pattern’ of distribution at that moment.Justice, Nozick argues, is about respecting people’s (natural) rights, in particular, their rights to property and their rights to self-ownership. We must allow people the freedom to decide what they want to do with what they own. Each person is separate, an individual, and we must respect their autonomy. Nozick’s attack on equality: “There is no such meaningful concept as goods of the society but only the goods of particular individuals and society has no prima facie right to shuffle those around between individuals.”Rawls v Nozick -> distributive (R) vs. corrective (N) justiceRawls: yes, but much of what people own in society is the result of arbitrary phenomenon, like people’s social position and their natural talents (which are morally arbitrary). People shouldn’t de facto have a right to the earnings of their talent; only to that share which they keep according to the principles of distributive justiceNozick: each person’s talents and abilities belong to them, therefore they should keep the fruits of their labour -> to forcibly redistribute what they earn is to undermine their autonomyAlso, to Nozick: what about displacement of American Indians and enslavement of African-Americans? How much should they be compensatedwNegative Liberalism vs. Positive LiberalismLegal RealismAmerican Legal RealismLaw can be best understood by focusing on what judges actually do in deciding cases, rather than on what they say they are doing.Adjudication is not logical or deductive.Judges are not impartial.There is no law that pre-exists the judgment of judges.Judges make and change law.Statutes and other sources of law are not law until courts say they are law.What a statute requires cannot be specified until courts interpret and apply it.Formalism: judges decide cases on the basis of distinctively legal rules and reasons, which justify a unique result in most cases (perhaps every case)Realists deny this: judges work back from conclusion to premises that support it (e.g. precedents)E.g. the Case Method of legal education: law is like a scientific study; the principles/rules of the law are to be found in the decisions previously madeExample: A drunk driver hits and injures another person. Is it “assault with intent to kill” or “reckless driving”? Answer is determined by judge’s view of appropriate sentence depending on how much they think the accused should be punish.Early American jurisprudence: tort law cases found to have no duty of care for third parties b/c they weren’t “proximate” -> but determining proximation is just an arbitrary matter of opinion isn’t it? Justice Holmes and Legal Realism"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."“if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”Judges, not reasoning, matter most to the legal systemLegal Indeterminacy: Rational and ExplanatoryRational: the available class of legal reasons did not justify a unique decisionExplanatory: legal reasons do not suffice to explain why judges decided as they didClass of Legal Reasons: class of reasons that may be legitimately offered in support of a legal conclusion; judges choose amongst these based upon their personal reasonsResults in legal indeterminacy Idiosyncratic biases, personal affections or animosities, prejudices.Personal biases affecting the judge’s assessment of the facts of the case: sympathies or antipathies to witnesses, lawyers, the parties. Will affect the judge’s judgments of credibility, and what is literally heard or remembered by the judge. The testimony of witnesses is itself biased by personal characteristics and idiosyncrasies. Witness testimony relies on fallible inferences from what was actually seen or heard.Fact skepticism: facts can be decided in a range of ways; “facts” are subjectiveRule skepticism: rules can be decided/applies in a range of subjective ways Philosophical Pragmatism: “Pragmatism is a philosophical movement that includes those who claim that an ideology or proposition is true if it works satisfactorily, that the meaning of a proposition is to be found in the practical consequences of accepting it, and that unpractical ideas are to be rejected.”Legal Realism & Hart/DworkinPenumbra of Doubt vs Class of Legal Reasons: Hart believes that law is a system of rules and that rules still prevail -> in litigation where a judge is deciding law it is because there is genuine gaps/indeterminacy, but this is only a small periphery of the lawDworkin vs. Realism: Realists see judges as going outside the law to their moral and political values to make decisions when the law does not provide a clear answer. Dworkin, on the other hand, sees judges in these hard cases as digging deeper into the law to find the strongest moral and political principles that could justify an authoritative decision.? ... [They do] not find the right answer in some transcendent reality, but internally, within the integrity of the lawLegal Realism in CanadaThe Colten Boushie case: an all-white jury already deciding on the outcome of a case? Law and juries -> legal principles are thrown out the door and all that matters is the biases/opinions of the jurors in the case?mCritical Legal StudiesOrigins of Critical Legal StudiesDates back to civil rights movement & anti-Vietnam War activism of 1960sBorn out of social movement to challenge American political, economic, cultural authority and nobility of American lawInfluenced by European theorists like Marx, Weber, Horkheimer, Gramsci, Foucault and DerridaFocuses on ways law contributes to illegitimate hierarchies: patriarchy, racial inequality, economic inequality, etc.Central Tenets of Critical Legal StudiesLogic & structure of law are born out of power relations in society Law is a product of particular classes, and is really just a collection of beliefs and prejudices that legitimate the injustices of society.Law = politics. Law isn’t neutral or value freeTo change society, we must make these attributes of law plain and obviousWhat does critical legal studies seek to show? seek to demonstrate the indeterminacy of legal doctrine and show how any given set of legal principles can be used to yield competing or contradictory results;undertake historical, socioeconomic and psychological analyses to identify how particular groups and institutions benefit from legal decisions despite the indeterminacy of legal doctrines;expose how legal analysis and legal culture mystify outsiders and work to make legal results seem legitimate; andelucidate new or previously disfavored social visions and argue for their realization in legal and political practices in part by making them part of legal strategies.Robert Gordon: “If what is important about law is that it functions to ‘legitimate’ the existing order, one starts to ask how it does that”“This is Antonio Gramsci’s notion of ‘hegemony’, i.e. that the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are”“But by showing that the agile interpreter can justify as economically efficient virtually any imaginable scheme of social arrangements, the critique helps to deprive technology of its mystery; its pretense that science, magically substituting for agonizing political and ethical choices, dictates that if we want to remain prosperous we must endure all the miscellaneous injustices now in place and even invent new ones.”“If one of the effects of law is to constrict our ability to imagine alternative social arrangements, then it should be possible to liberate social imagination be dredging up and then working to flesh out some of the alternatives that are already present but have been suppressed in legal discourse.”Should law be radical?“So the big premise of the CLS method, the raison d’etre of its scholarship and local political tactics, is that the deployment of ordinary legal discourse is a form of political practice, and one with unnecessarily conservative consequences. If we experience a sense of stasis and paralysis about the possibilities for social change, we owe our passivity in part to the character of these pervasive discourses.”“[CLS Scholars’] first problem was to figure out how legal training produces its mind-numbing paralysis—how even left-liberal students trained by left-liberal teachers end up drained of energy and hope for social change. One big reason, of course, is that graduates of the elite schools are lavishly rewarded in money and social status for going into large-firm corporate law practice and tend over time to adjust their ideals to their situations…. Graduates of less elite schools think themselves lucky to get any legal job on any terms that are offered. But both types of lawyers tend to excuse their passivity with the gloomy thought that nothing can change anyway, and that conclusion-–so the Crits speculate—they owe in part to the conservatizing elements in academic-legal discourse”Legal Theory, Feminism and GenderFeminist JurisprudenceConsequently, feminist jurisprudence is not politically neutral, but a normative approach, as expressed by philosopher Patricia Smith: "[F]eminist jurisprudence challenges basic legal categories and concepts rather than analyzing them as given. Feminist jurisprudence asks what is implied in traditional categories, distinctions, or concepts and rejects them if they imply the subordination of women. In this sense, feminist jurisprudence is normative and claims that traditional jurisprudence and law are implicitly normative as well"Feminist jurisprudence sees the workings of law as thoroughly permeated by political and moral judgments about the worth of women and how women should be treated. These judgments are not commensurate with women's understandings of themselves, nor even with traditional liberal conceptions of (moral and legal) equality and fairness.Schools of Feminist JurisprudenceLiberal – equal opportunity, equally rational, free choice (Ruth Bader Ginsburg)Radical – differences between men and women as bases to challenge domination (Katherine MacKinnon)E.g. It’s not the law’s place to interfere in the sexual autonomy of women (i.e. if they want to be a sex worker) Her concept of equality—predicated on eliminating dominance and subordination rather than enforcing sameness and punishing difference—has been largely adopted in Canada and has been influential around the world. Her analyses of the male bias of the law, as reflected especially in the laws of sexual abuse, and proposals for change were collected in Women’s Lives, Men’s Laws (2005).Cultural – undermining cultural construction of gender (Carol Gilligan)Post-modern – denies single theories of gender or equality (Judith Butler)Butler states that, historically, feminism (and the world at large) has viewed gender in a binary fashion. In other words, humans are typically divided into two distinct categories: men and women. She argues against these binary categories, stating that gender should be seen as a human attribute that shifts and changes rather than remaining fixed. She contends that women have been lumped together in a group with shared characteristics and interests, and this limits their ability to choose their own unique identities.The Feminist MethodologyAs a group, feminists are concerned with the implications of historic and contemporary exploitation of women within society, seeking the empowerment of women and the transformation of institutions dominated by men.Theory + practice: understanding patterns of dominance and then seeking ways to change themWhat questions did earlier feminist legal scholars ask about law?:In an ideal world, what would this woman’s life situation look like, and what relationship, if any, would the law have to this future life?How do we get there from here?Heather Wishik (1985)Important Reforms Led by FeministsProperty division rules at divorce were altered in response to the argument that women as homemakers and mothers made valuable, even if non-monetary, contributions to the family.A focus on gender differences also ushered in “new” legal concepts such as sexual harassment and the battered women’s syndrome.What reforms have been proposed in this area of law or women’s life situation? How will these reform proposals, if adopted, affect women both practically and ideologically?Central Ideas in Feminist JurisprudenceThe personal is the politicalIn feminist terms, the ‘personal is political’ refers to the theory that personal problems are political problems, which basically means that many of the personal problems women experience in their lives are not their fault, but are the result of systematic oppression.Consciousness raisingearly women’s liberation movement activity of women getting together in groups to discuss their own oppressionIntersectionalityThe term intersectionality theory was first coined by legal scholar Kimberlé Crenshaw in 1989.[12] In her work, Crenshaw discussed Black feminism, which argues that the experience of being a black woman cannot be understood in terms of being black and of being a woman considered independently, but must include the interactions, which frequently reinforce each otherTyranny of ObjectivityThe Public/Private DivideAnother central theme in feminist philosophy of law is the role of the public/private distinction. For liberals, including liberal feminists, there remains a domain of private life that should be reserved for individual choice. Radical feminists raise the concern that patriarchy and sexual dominance pervade private relationships.“The ideology of the public/private dichotomy allows government to clean its hands of any responsibility for the state of the ‘private’ world and depoliticizes the disadvantages which inevitably spill over the alleged divide by affecting the position of the ‘privately’ disadvantages in the ‘public’ world.” - Nicola LaceyMartha Nussbaum Lecture: anger and revolutionary justiceNussbaum, winner of the 2016 Kyoto Prize and recipient of honorary degrees from 56 institutions, suggested that anger must be “transformed” in order for justice to function. Anger, she said, is distinguished by a desire for payback—an observation first made by Aristotle, who called anger a “painful reaction to damage.”On the subject of revolutionary justice, Nussbaum insisted that the most successful movements are those that—like Athena with the Furies—transform their initial anger into the pursuit of a just futureAnger is inefficient, but it is arguably accepted as a legitimate emotion by our legal system: perhaps this reflects the patronizing/patriarchial nature of our legal system?Why can’t other motions (e.g. love) play an important place in the legal system? Global JusticeWarding off Learned Helpnessness“I consider it a dangerous misconception of mental hygiene to assume that what man needs in the first place is equilibrium or, what is termed in biology “homeostasis” i.e. a tension-less state. What man actually needs is not a tension-less state but a striving and struggling worthy of him. What he needs is not the discharge of tension at any cost, but the call of a potential meaning waiting to be fulfilled by him.” - Viktor Frankl, Man’s Search for Meaning“It should be pointed out that the impossible happens rather frequently. Recent instances include decolonization, the American Civil Rights Movement, the liberation of Eastern Europe, the collapse of apartheid in South Africa, the election of an African-American as president of the United States, and the Arab Spring.” - Richard Falk, Toward Humane Global Governance: Rhetoric, Desire and ImaginariesSome Facts About Global InjusticeGlobal Distribution of WealthThe globe’s richest 1% own half the world’s wealth. Millionaires – who account for 0.7% of the world’s adult population – control 46% of total global wealth. The world’s 3.5 billion poorest adults, who account for 70% of the world’s working age population, account for just 2.7% of global wealth.Global PovertyMore than 1.3 billion live in extreme poverty — less than $1.25 a day. According to UNICEF, 22,000 children die each day due to poverty. 805 million people worldwide do not have enough food to eat.More than 750 million people lack adequate access to clean drinking water. Diarrhea caused by inadequate drinking water, sanitation, and hand hygiene kills an estimated 842,000 people every year globally, or approximately 2,300 people per day.The State and Global Justice“It is now apparent that no claim for justice can avoid presupposing some notion of representation, implicit or explicit, insofar as none can avoid assuming a frame.” - Nancy Fraser, Reframing Justice in a Globalizing WorldIs there continuity in justice b/w national borders? Sovereignty: is it a force for good or a barrier to solving collective problems? To whom is justice owed? Member’s of one’s state or the global community? Statist View of Justice (Thomas Nagel)When we’re thinking about justice, we have to think about different “pools” of justice (states)Sovereignty created nation states and the governments of those states owe preference to their respective citizensReflects a Hobbesian worldview: Since justice and injustice have to do chiefly with the interactions among persons, a sovereign government is needed to bring about justice and injustice. At the international arena, where there is no such sovereign government to bring justice about, states are constantly at potential war with one another, hence their situation is some sort of state of nature.Justice is something we owe through our shared institutions and only to those with whom we stand in a strong political relation with. It is an associative obligation Towards Global Justice:Unjust and illegitimate regimes are the necessary precursors of the progress toward legitimacy and democracy, because they create the centralized power that can then be contested, and perhaps turned in other directions without being destroyed. For this reason, I believe the most likely path toward some version of global justice is through the creation of patently unjust and illegitimate global structures of power that are tolerable to the interests of the most powerful current nation-states. Only in that way will institutions come into being that are worth taking over in the service of more democratic purposes, and only in that way will there be something concrete for the demand for legitimacy to go to work on.We are unlikely to see spread of global justice by institutions created specifically for this: these institutions are created by states, and states are self-interested utility-maximizers who will only care about their own power Cosmopolitan View of Justice (Thomas Pogge)Cosmopolitans see themselves as “citizens of the world”. Contemporary cosmopolitans typically hold that every human being has standing as an ultimate unit of moral concern and is entitled to equal consideration of her interests no matter what other affiliations, especially national affiliations, she might have.The state is an impediment to global justice; and people should disregard their state-centric and nationalist identities in favour of a global identity more conducive to justice there are guiding universal principles, pre-existing moral principles many of which are reflected in documents such as universal declaration of Human RightsTo achieve a cosmopolitan world, this concentration of sovereignty at one level is no longer defensible. Pogge suggests that people should be citizens and govern themselves though varying levels of government that would range in size from one's neighborhood to the world at large.[7] To support this idea, he gives three reasons why this vertical dispersal of sovereignty is conducive with a cosmopolitan world: peace/security, reducing oppression, and global economic justiceAccording to Pogge, peace and security would benefit from decentralized sovereignty because it would allow for the collection and disposal of all weapons of mass destruction, which is currently impossible to do because states would not permit it. He also contends that states currently hold too much power over "their" citizens, which leads to abuses such as torture and oppression. If there were multiple layers of sovereignty, the different political units would be able to check and balance one another. Finally, to improve the economic situation of the poorest states, a global levy on resources could be established to ensure equal per capita endowment and even encourage conservation.Peter Singer likens global poverty with the duty to save a drowning child; how does Pogge criticze this and how does this relate to global justice? Singer: it’s morally indefensible for a minority for the world to live in riches while many parts of the world live in poverty/hunger; wealthier nations have a moral responsibility/duty to aid the global poor Pogge says that we need to reckon with our contributions to the problem in the first place before we ground our duties: e.g. how our institutions promote economic inequality, environmental degradation, etc.11. To what extent do we currently have a world government, replete with legislature, executive and judiciary?12. What options do you see for different forms of world government that might better accord with ideas of justice?Radical Decentralization of Power / MultipolarityRegionalismWorld GovernmentIndigenous Theories and Perspectives of Law1. Here are some reasons why we end our Jurisprudence course with three classes on Indigenous Law and Justice:To qualify the Euro-centric content of much of the thinking in this class;To compare and contrast Indigenous theories of law and justice with material discussed thus far;To revisit themes of natural law, positivism and rule of law in light of Indigenous experience in Canada;To consider the idea of decolonizing law, justice and the university; andTo introduce ideas about truth-telling and courage as recurrent features of justice.To what extent is it possible to speak of an Indigenous concept of law and justice as distinct from Indigenous concepts of law and justice? According to Statistics Canada, in 2011 there were more than 600 First Nations living in Canada and 3,100 reserves across the countryCanadian Indigenous peoples speak more than fifty different languages from twelve distinct language families;Is there an Indigenous concept of law and justice? “[t]he ceremonies of the Potlatch on the West Coast produced entirely different legal relationships from those of the Sundance on the Prairies or of the Midewiwin and False Face Societies of central Canada. The stories told in the Big Houses of the Salish differ fundamentally from those told in the teepees of the Assinaboine, which might likewise be very different from those spoken in the Longhouses of the Haudenousaunee or the lodges of the Mi’kmaq”The Diversity of the First Nations Legal System: there are some general features4. Despite this great diversity, it is meaningful to speak of some general features of indigenous legal traditionsWith respect to form, Indigenous legal traditions tended to be oral rather than written, which marks a difference Western traditions have failed to grasp;Oral: there is no database of Aboriginal/Indigenous law; and creating a collection of them would probably be bad and risks assimilating the legal tradition into Western standardsIn terms of content, James Sákéj Youngblood Henderson suggests that ecology, harmony, balance, spirituality and relationship are key features animating Indigenous concepts of justice and law. These teachings have illustrated a consensual order that is based onendless interrelated transformations that involve all life forms.Hegemony of European Concepts of LawAngelo-American jurisprudence traditionally ‘crowds out’ other perspectives Must decolonize the university?Anglo CL simply holds itself to be the superior legal system “Rights to the use of land belong not only to the living but to those who have gone before as well as to those who will come; neither do they belong exclusively to humans, but to other living things as well—animals, plants, sometimes (under special circumstances) even rocks… As Indians see it, absolute ownership was not granted by the Creator.. When Amerindians signed treaties, they could not give up absolutely ownership of the law because they never claimed it for themselves... The Crown, to claim absolute title, would have to obtain surrenders from past generations as well as those of the future.”Like Nigel said, the concept of fee simple doesn’t exist in Indigenous property law: you are a steward of the land, not an absolute owner Main Areas of Difference b/w Indigenous and European theories of law The oral versus the written tradition;The hegemony of the English language – Professor Johnson’s story of a gender for objects in nature (non-binary)Continual comparison with and assimilation within European legal traditions - See Val Napolean’s discussion of attempts to codify Gitksan law.Differing underlying assumptions of legal concepts like ownership. See quote on next slide.Indigenous Peoples and the Canadian State: Not a Great Relationship…John Burrows: Put simply, the continent’s original inhabitants have never been convinced that the rule of law lies at the heart of their experiences with others in this land. In this respect, Canada’s legal system is incomplete.The Potlatch and Sundance were banned, because they were perceived as inconsistent with capitalist values, Judeo-Christian ideology and integrationist aspirations;An Amendment forbid any first nation or band from retaining a lawyer for the purpose of making a claim against Canada, or from raising money to obtain a lawyer;Indian status was explicitly gendered until 1985, which was especially pernicious in matrilineal societies;Residential schools were formally legally mandated by the Indian Act, forcibly separating then indoctrinating families to “kill the Indian in the child.”;Modern law replicates these repressive laws. As Borrows argues, “[w]hen these schools closed, the children continued to go, but now as part of child welfare or criminal justice systems.”Bias in the Canadian Rules of Recognition/Grundnorm“Sovereignty’s incantation is like magic; its mantra ‘Aboriginal title is a burden on the Crown’s underlying title.’ This mere assertion is said to displace previous Indigenous titles by making them subject to, and a burden on, another people’s ‘higher’ legal claims. Contemporary Canadian jurisprudence has been susceptible to this artifice. In considering Aboriginal title, the Supreme Court declared that the Crown gained ‘underling title’ when ‘it asserted sovereignty over the land in question.’ As in past centuries, sovereignty purports to herald the diminishment of another’s possessions, and in this respect the decision echoes ancient discourses of conquest. Is this, as the court requires of its jurisprudence, ‘a morally and politically defensible concept of [A]boriginal rights’? Is the mere assertion of sovereignty an acceptable justification for the Crown’s displacement of Indigenous law and title? That a legal entitlement to land could be secured over another entitlement merely through raw assertion makes no sense.” - John BorrowsConstitutional scholars say that the British imperial law “filled a void” in Canada during colonization; doesn’t incorporate Indigenous peoples’ wisdom and learning to formulate the basic rules of our legal systemThis is arguably a central feature of English law, stemming from John Locke’s terra nullius princples; whereas Blackstone commented that Indigenous people were inferior and not organized enough to govern themselves with their own legal institutionsIt’s the law of conquest, which isn’t healthy because it sets up Indigenous people to be in constant opposition to the Canadian stateCanadian law treats corporations as distinct legal persons, but it does not seem to recognize natural features (rivers, mountains, spirits, etc.) as the sameThe Rules of Law “First, there were few safeguards to protect the fundamental human rights and individual freedoms of Aboriginal peoples through most of Canada’s history. As a result, their individual and collective lives were unduly ‘susceptible to government influence’””A second manifestation of the lack of protection for Aboriginal peoples under the rule of law is that the parties to the creation of Canada did not ensure that, as a vulnerable group, Aboriginal peoples were ‘endowed with institutions and rights necessary to maintain and promote their identities against the assimilative tendencies of the majority” (see next slide)“A final consequence of the failure to extend the rule of law to Aboriginal peoples is that the political organization of Canada did not ‘provide for a division of power’ that would prevent the provincial and federal governments from usurping the powers of Aboriginal governments. Non-Aboriginal governments usurped Aboriginal authority ‘simply by exercising their legislative power to allocate additional political power to [themselves] unilaterally.’” John Borrows10. What other continuities are there between Indigenous issues in Canada and other topics we have discussed?11. What was the role of capitalism in Canadian colonialism and how does that affect perceptions of law and justice?12. What does decolonizing law, justice and the university mean in Canada? How does the Canadian legal system move forward?Make sure our legal system is open to new and healthy influences and regard the system as being situated within interpretive communities in which those who are affected by them are able to participate in their continued construction Law is a practice, not simply an idea and should change with new practicesMore treaties: when constitutional instruments are rearded as resting on treaties, then Canadian law is firmly on the path to becoming truly Indigenous -> home-grown in its place of applicationQuestions:What’s Finnis’ practical reasonableness? Is it just a way to discover natural law?Hart and discretion: how would he respond to ALR? And Dworkin?How did Nussbaum’s lecture relate to feminist legal theory? Nevsen CaseThe law in Eriteria is positivist law; but Fuller would say this isn’t law because it’s completely immoral Fuller would also say that Eriteria doesn’t even follow the RoL (i.e., the gov’t is basically allowed to do what it wants to do) ................
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