High Distinction (82/100)

LAWS2249

Legal Theory

Semester 2 2015

Legal Theory – Final Exam – Semester 2 2015

High Distinction (82/100)

I INTRODUCTION

Power and law are inextricably linked and in the case of Austin, are constitutive of one another. Although power is one of the defining characteristics of law, it is not the only characteristic. This essay will argue in agreemet with Hart that Austin’s conception of law as a command is insufficient for thr modern legal system. Hart’s own theory is also flawed but helpfully points out that law may be used by the elite to abuse or exercise their power.

II AUSTIN ON POWER AND LAW

Austin contends that law is an expression of power and that laws are merely commands backed by the threat of sanction for compliance. Austin argues that all law is exercise of one’s power over another as commands create duties upon individuals. Austin’s model of law entails commands by Sovereigns who Austin believes is the uncommanded commander – obeyable to all but obeyable to none. Central to this idea is that the sovereign is legally illimitable and cannot be constrained by legal limits. Therefore, this account of law essentially deems that law is an expression of power and all those who obey commands do so out of threat of sanction. [tick]

III HART’S CRITIQUE

Hart argues that Austin’s model of law and power is too simplistic in order to be applicable to modern legal systems. He thinks that Austin’s model reflects a gunman situation where a gunman commands obedience for threatening to shoot. However, Austin argues that this is not legal obligation but instead one is only obliged to act. [tick] This differs from obligation because an obligation entails some sort of acceptance of the rule by the people. Thus, Hart claims also that Austin’s conception of the sovereign does not always exist in every society. Even if a Hobbesian view is taken and the sovereign is in the people, it is clear that each person is limited by law and obeyable to it. It is a tenuous argument to say that the people and person are divisible. [tick] Austin also argues that the model does not account for power conferring rules. He says that power conferring rules such as the powers of individuals to make wills, contract and adjudicate are not rules that are backed by sanction. Austin argues that indeed sanctions can be very small but Hart argues that legal invalidity of a Will for example cannot be seen as a sanction, as legal invalidity does not seek to deter such conduct. [tick]

IV HART’S MODEL

Hart comes up with a model or theory of law that seeks to fill the gaps left by Austin. He rejects Austin’s command theory instead saying that a legal system comprises of primary and secondary rules. [tick] Primary rules impose duties and regulate behaviour and conduct. However they cannot alone make up a legal system as they create issues such as being static and resistant to change, [tick] uncertain and lacking in a method to resolve disputes as to whether or not an obligation has been breaches or not. [tick] Thus, secondary rules should be introduced. These secondary rules allow for the creation of new rules and elimination of old rules as well as the conferral of power. Hart says that the problem of static laws are eliminated through the rule of change which empowers individuals or institutions to create or eliminate rules faster than by customary change in primary rules. Additionally, uncertainty is overcome by the rule of recognition in which rules can be set down as to how a law or rule should validly be created. Finally, rules of adjudication should be established in order to empower individuals (judges) to make determinative legal decisions over whether an obligation has been breached or not. [tick]

V WALDRON’S CRITIQUE

Waldron illustrates that hart’s model of law actually poses some serious risks and concerns as to the abuse of power. Waldron contends that Hart’s secondary rules can enable law to be used as an instrument of the elite. [tick] This is because if a legal system has unjust primary rules, the secondary rules will merely operate to protect those unjust primary rules against change. Thus, it may assist to promulgate oppression and injustice

Additionally, Waldron posits that Hart’s theory of law [how can ‘theory’ elucidate?] may operate to alienate the society from law. Under a priomary rule system individuals interact directly with law. However, secondary rules create a complete structure of law and create powerful elite institutions to govern laws. Thus, it runs the risk of individuals not knowing the laws that govern them and also that the elite may abuse their power over the people.

Waldron’s criticisms however, do not argue that law will always be used as an abuse of power over individuals instead his critiques merely show how law can be used as a tool for the abuse of power. [tick] Thus is different from the views of Marx and the CLS who state that the law is always used for the exercise of power, oppressing the subjects. [tick] This is also how Hart and Austin’s accounts differ. As Austin says that all laws are essentially an exercise of power by the sovereign over the subjects, Hart’s account (and subsequently Waldron’s critique) illustrate that law can be used as coercive and an oppressive abuse of power but need not be [tick].

In this respect, I find Austin’s account subordinate to Hart’s much more persuasive account. Indeed in Australia there are laws which are commands backed by threat of sanction as seen in the Crimes Act that prohibits murder. However, law as a whole is much more than that. It is a series of complex social structures which also involve the conferral of power and enables individuals to undertake in affairs protected by law, such as the conferral of legislative power in section 51 of the Constitution.

VI CONCLUSION

In conclusion, it is clear that Austin’s theory of law and power is an important starting point and it is seen in many rules regulating conduct today. However this theory is not immune to the flaws of simplicity, lack of sovereign and lack of power conferring rules which has been highlighted by Hart. [tick] Hart’s model does indeed provide a more comprehensive theory of law, however, Waldron shows that it too can be used for the oppression of society at the hands of an abuse of power. In summary, Hart’s account of law can be seen as superior to Austin’s account through the inclusion of secondary rules. Foucault would disagree with both Austin and Hart’s conceptions of power since he believes that power cannot be vested in an individual but only occurs through a series of complex relationships. Nevertheless, Hart’s theory of law is not full proof as it also highlights the dangers that a legal system can, but not always will, be used as an instrument of coercive power over the masses. [Good argument. Descriptive. Only positivist aspect of Hart’s concept could be more explicitly reflected on]

QUESTION 2

I INTRODUCTION

Individual rights seek to protect only the most fundamental and essential human rights that are important to a worthwhile life. This essay will argue that individual rights need not always come at the expense of a cohesive society and need not compromise effective democracy, In fact, granting individual rights can actually assist democracy and in some circumstance, help communities to operate cohesively.

II THE CASE FOR INDIVIDUAL RIGHTS

The case for individual rights is based on the ‘inviolability’ of human beings (Rawls). Liberalism also seeks to allow all individuals to pursue their own conception of the good life and to revise this conception when desired. Dworkin argues in defense of individual rights, as certain fundamental and essential rights should not be overridden by the general interest of society, such that one Christian may be thrown to the lions in the interest of many (Rawls). Waldron also supplements this by arguing that individuals should enjoy individual rights as a fall back for when the ‘warm bonds of affection’ in social relations fade. [tick] Furthermore, he argues that fall back theory of rights actually assist to create new social relations between strangers that would not otherwise be possible. [tick] I am largely persuaded by these claims for individual rights. Without such rights how would individuals be able to live in a society in which they will always fear being sacrificed at the expense of others in pursuance of the ‘general interest’? If anything, I think a society without individual rights would be anarchy as all individuals would never feel protected from their own society. [not all societies without protected individual rights are anarchies]

However, Waldron contends that more are some (rare) circumstances in which there is a grave and demonstrated risk to the society in which individual rights may be set aside. For example, if it is the matter of one individual’s life at the expense of the lives of many, I can see that in that case Waldron may conceded that individual rights may be set aside, but not merely for general interests of society. [a fine line!]

III COMMUNITARIAN OBJECTIONS

Communitarians such as Sandel, argue that one’s identity is so inextricably linked to the society or culture into which they were born, that individual rights should be set aside in the interests for pursuing communitarian and common goals. Sandel contends that individual rights necessarily conflict with the advancement of communitarian/common goals. However, this is not necessarily true in all cases. Dworkin, Waldron and the arguments for individual rights are such that certain fundamental rights must first be protected, but after that individuals can still pursue common goals in the interest of society.

Communitarians argue that rights are selfish and egocentric because they encourage individuals to only consider their own interests in making rights claims. This argument is brought on the basis that the interest theory of rights which is that a right creates a duty on all others to observe and not infringe upon that right. However, rights theorists argue that in fact many individuals claim rights for others and not themselves. [tick] This shows that rights can be claimed on behalf of others to protect those in the community and non destabilise it. Waldron also highlights, and it is important to note that just because a right exists, does not tell the right holders anything about whether to exercise the right or not. [tick] Indeed, as per the choice theory of rights, individuals who hold rights can in fact chose not to exercise these rights. Therefore, it can even increase individuals’ awareness of one another in society by giving them the chance and opportunity to consider whether to exercise a right or not. This can be beneficial for society.

Communitarians also argue that rights destroy the social relations and warm bonds of affection within social relationships. [tick] Waldron refutes this by arguing that rights are merely a safety net and are not constitutive of social relationships. In fact, Waldron contends that the provision of individual rights as a fall back can assist new bonds and social relationships to be brought into existence such as a transaction between 2 strangers. [tick] This does not detract from or destroy the social relationship but merely enables the creation of a new relationship [outside the community?] where there otherwise would not be one. This can be seen as actually furthering communal objectives and the good of society as a whole.

Finally, communitarians argue that the provision of individual rights come at the expense of society’s goals and aims. Rights theorists however do not argue for

the granting of individual rights at the expense of or over, communal goals, however they argue that these certain rights are protected first, and then social aims can be pursued. Moreover, not all rights of individuals should enjoy this fundamental protection. [constitutional?] Dworkin and Waldron highlight that is only some certain, essential and very fundamental rights that should be protected. Additionally, individuals rights are granted equally to all individuals in society and therefore, they cannot privilege [tick] the elite over the masses (Marx) because all individuals are equally protected by these rights. Indeed, it can be concede that in some circumstances, the imposition of fundamental human rights may conflict with the greater aims or communal goals of society. For example, if a terrorist planted a bomb in a sports stadium filled with thousands of people, and the terrorist refused to give any information about the bomb’s location and the police are considering torture techniques to extract the information from him. This scenario presents an unsightly difficulty to rights theorists as respecting the terrorist’s right to be torture free may come at the expense of thousands. In this scenario, I foresee that rights theorists may conceded that the gravity, urgency and extremity of the situation may permit that the terrorist’s rights be set aside in the interests of the lives of the majority. Also, they may agree that since the terrorist chose of his own free will to undertake this action, he foregoes his fundamental rights. However, the problem with this is the age-old question of: how far does this extend to? What if the terrorist had a gun to his head in doing this? What if there were only 100 lives in the stadium at risk opposed to thousands? [Indeed]

Indeed the issue of individual rights versus communitarianism is a continual and unresolved debate. However, with exception of these extreme situations, I believe that the provision of fundamental individual rights can actually work to assist communal goals and the wellbeing of the community.

IV INDIVIDUAL RIGHTS & DEMOCRACY

Democracy is determined as the rule of all individuals where the sovereignty is with the people (Hobbes). Democracy is where either the sovereign citizenry/people elect representatives to make decisions on behalf of society or if they decide directly by voting.

In many cases, democracy is argued to be a communitarian ideal. How then can individual rights operate to protect or ensure democracy? [what about constitutional rights?]

The protection of individual rights can in many contexts actually assist democracy. The protection of the fundamental rights to freedom of speech, freedom of franchise or freedom of expression are constitutive concepts of democracy. Indeed, if these ideals were to be protected by fundamental individual rights, then it would assist in the operation of democracy. Habermas argues that effective democracy occurs even though all may not agree with the substance of an enacted law but if all the law is procedurally democratic then individuals will accept it.

It is clear however, that some rights and interests of specific individuals may be compromised at the expense of democratic goals. [tick] For example, minorities and marginalised groups in society may suffer under a democracy if they are not afforded minority group rights (Kymlicka). Moreover, Okin contends that in some cases, women’s individual rights may be subordinated and oppressed particularly if society they are in is gender biased and protected by group rights.

V CONCLUSION

It has been argued that individual rights do not always come at the expense of society as a whole or democracy. Indeed there are some instances that are particularly grave or urgent, where individual rights directly conflict with social wellbeing and common goals. However, this is not always or even largely the case. On the whole, granting individual rights can actually assist the pursuit of societal goals and improvement of communities. This is because rights claims although they create obligations on others, encourage individuals to think about society and others before exercising their right, because as Waldron argues, the existence of a individual right does not indicate whether it should or shouldn’t be exercised. Moreover, rights claims are often claimed by some individuals on behalf of others, which encourages community awareness. Additionally, individual rights can provide individuals with assurance that they will not be sacrificed at the expense of society’s general interest such that there will not be unprincipled anarchy in the fear that they may be expensed. Individual rights also protect humans against the dangers of a despotic controller or dictator. Moreover, the provision of individual rights provides an avenue for new social relations to be created, which can further strengthen communities. Finally, individual rights can afford individuals the certain protections that are fundamental to and constitutive of democracy. [Reasonable argument. Are ‘judgemental’ rights those that meant to be constitutionally entrenched? If so, Waldron’s democratic critique of constitutional rights might be relevant.]

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