Not for Distribution: Use Only in Compliance with Copyright: David Risstrom

NOT FOR DISTRIBUTION: USE ONLY IN COMPLIANCE WITH COPYRIGHT: DAVID RISSTROM

AN INTERPRETATION OF LAW IN CONTEXT

Bottomley, S., Gunningham, N. and Parker, S., 1991, Law in Context, The Federation Press, Leichhardt.

{ } = additional material from lectures. ( ) = my comments. (See ‘x’) refers to book page number.

A short (somewhat boring) message from the summary executioner before you dive in; These notes are an interpretation of the book Law in Context and the lectures given as part of the 1991 Course. They are not a satisfactory substitution for reading the text. You are only likely to get the maximum value out of this summary by reading it in conjunction with the text.

The question of ‘the law in whose context’ may be worth keeping in mind as you read. This is an interpretation seen through my eyes, not yours. My comments are not unbiased, as it is as equally unlikely that yours may be. So my ‘advice’ is consider what is said here and in the book considering the need to understand the ‘mechanics’ that help make sense of the more involved themes that develop in the book as you progress through Law in Context. The observations, important in their own right, may be particularly useful for seeing how their often ubiquitous expression is taken as ‘normal’ in the areas of wider society, such as in discussions of economics and power. It is unlikely that you will find any ‘right answers’ from this summary, but I do hope it helps you in synthesising opinions. A bibliography of books I used is given at the end of this summary.

If your head isn’t spinning too much, maybe it is worth getting together earlier in the semester with friends and talking about some of the issues that particularly interest you. Don’t be worried if ‘you don’t know anything’. It’s probable that you, as for most of us, are neither as enlightened nor as naive as you suspect. Anyway, I’m heading off in a bit of a lecture here, so I’ll stop. I hope this summary is of some use. I am quite happy for it to be photocopied during 1992 for use within the university as long as it is not a breach of the original text’s copyright: Dave

No man person is an island.

John Donne (revisited)

†††††††

PART A - LAW IN A LIBERAL CONTEXT

2 CHAPTER 1: INTRODUCTION

Mason CJ (1991): [T]o treat the law as a discrete set of principles in a vacuum and without a context is to misconceive its dynamic and ubiquitous nature and, more importantly, to undervalue or even overlook the manner in which it contributes to the fundamental fabric of modern society.

# Law cannot be treated as a discrete set of principles without a context.

# Up to 1920’s the dominant unchallenged framework was legal Formalism, in which there was a “logic of the system.” (Leff) Formalism = formally rational legal reasoning.

3# After WW1, legal formalism was challenged by Realists who were interested in “the way law actually functioned in society.” (For a good two-page discussion of Legal Realism See Barry’s introduction to Modern Political Theory, 44 - 45)

# Legal Realists said:

° legal rules inevitably have social consequences.

° law (and judges) cannot be objective.

° formal legal reasoning can never be conclusive (ie, justification is outside the law).

° law must be studied “as it works in practice by making use of the social sciences”.

Legal Realists didn’t provide a systematic critique of USA legal thought and the movement died out with welfare legislation of the 1930’s New Deal, though it did have a lasting effect of challenging Formalism.

4# A post Realist movements, ie; feminist jurisprudence, sprouted, but didn’t quite get a hold in Australia, Australian law schools have been largely formalist.

Rough breakdown of the book;

PART A = liberal philosophy, the rule of law, legal formalism

5Ch 2 = the core elements of liberalism.

PART B = the law and its interaction or causal relationship with aspects of society.

Ch 3 = equality before the law is only partly achieved.

Ch 4 = procedural protections are by-passed in litigation.

Ch 5 = lawyers are not always the disinterested servants of their clients.

6PART C = economic analysis of law, “law serves essentially an incentive function in rewarding efficiency...and (in) punishing inefficient aberrations”, applications to tort and contract law, “public choice theory”.

PART D = law and power, a complex picture of power exercised along lines of gender, race, social class and interest group.

7The book Law in Context (LIC) contrasts the ideal with reality. “Law can be seen as a collection of prescriptions about what ought to happen.” Gap Theory = the idea that there is a gap between what should (is designed to) happen and what does happen.

8“The Law and Society movement began as an attempt not to be deceived.” LIC is designed to help readers decide whether or not they are.

9CHAPTER 2: LIBERALISM, FORMALISM AND THE RULE OF LAW

9(a) INTRODUCTION

LIC considers at the interaction between liberalism and the law, theory and reality.

Def; Liberalism as a type of ideology, looks at legal issues central to liberal philosophy, the rule of law and requirements of a legal system, formalism as legal reasoning.

9(b) LIBERALISM AS IDEOLOGY

{Liberalism is the dominant ideology in Western civilisations. One liberal tenet is, ‘if you do not have an obligation not to do something, you are free to do it’.}

(Def: LIBERALISM = Doctrine of those who broadly supported the French Revolution, and which came to include equality before the law, representative government, economic individualism and rationalism as a guide in politics and society. (See accompanying notes on Liberalism by Gamble)

10An ideology is a set of closely related beliefs, ideas or attitudes that are characteristic of a group or community. It contains ideas about what is and what ought to be.

Liberalism is a label given to the dominant ideology of modern western society from C17, though labelled liberals only evolved in C19. Liberal beliefs span from conservatism to libertarianism to social democracy.

The rule of law is symptomatic of liberal’s suspicion of state authority.

12The constructions of modern law in countries such as Oz, with divisions between contract and torts, responsibility and excuse, etc., formed during mid C19 in the heyday of classical liberalism. {Basic common law principles were laid down in C19} (The word ‘classical’, in this context generally means as in the form its early proponents viewed it, which often equates here to a period roughly from C18 to C19.)

12(c) THE ELEMENTS OF LIBERALISM

13Three ideals were paramount in the North American and European breakaway from the social traditions based on hierarchy, privilege and status: Liberty, Individualism and Equality

Seven headings are given for the elements of liberalism (discussed in more detail below);

(i) Liberty (ii) Individualism (iii) Equality (iv) Justice

(v) Rights (vi) Utilitarianism (vii) Rationality

13(i) Liberty

Liberal comes from the word liberty, and subscribes to the idea that people owe no obligations unless they have entered into agreements with each other.

Classical liberalism: the most important thing is the absence of external constraint = negative liberty. Negative liberty = freedom from (vs positive liberty) = freedom to (ie Austudy)

Hobhouse (1911) talked about spheres of liberty: civil, fiscal, personal, social, economic, domestic, local, racial and national.

Civil liberty was freedom from arbitrary control by government.

14Fiscal liberty = part of the sanctity given to ‘private property’ and the libertarian idea of tax as theft.

Liberal philosophers believed in life as containing public and private spheres. The private sphere (the home, where you withdrew from the ravages of the market) puts a limit on equality (women cook the meals and do the dishes).

History of UK and USA Liberalism is to attack government intervention in economic activity.

15Australian (and USA) treatments of Aborigines may be explained by liberal attitudes to race and its assumption that higher liberties were for those with particular moral and mental capabilities. (See 290)

“Harm to others” principle of John Stuart Mill (famous UK political philosopher 1806-79) = “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” (This is reflected in Lord Atkin’s neighbour test in Donoghue v Stevenson.)

Application of this principle has been used as a justification for the state to decriminalise some innocuous actions; ie, homosexuality.

16Avoidance of harm to others was a principle assisting state intervention begun in classical contract and tort law, with torts being more prominent. This was because tort law said people should not do certain things and, therefore, was limited to cases of harm through proven fault. Contract was (in theory) the exercise of freedom to bind oneself in agreement. {Raz wrote about the nexus between substantive and formal equality of opportunity.}

17The liberal state has increasing moved away from negative liberty (freedom from) to positive liberty (freedom to), with compulsory state education as a good example; ie, engaging in education is justified as this may increase the freedom of choice of the individual.

An argument against positive liberty is that it may presuppose what is good for people; ie, in Cambodia, was education on rural farms advantageous to the individual?

18(ii) Individualism

Liberals assert it is liberty of the individual they seek to protect. They see society as composed only of individual human beings, therefore society is an association no greater than the sum of its individual parts ie humans. Maggie Thatcher allegedly said, “There is no such thing as society.”

19In a liberal society, impersonality, formal equality and indifference are hallmarks, reflected in C19 common law development. The state bureaucracy assisted the formation of associations between individuals (freedom to contract) allowing individuals, to serve their own ends.

Tort law, before Donoghue v Stevenson, 1932, rejected the idea of neighbourliness, despite ideas or reasonable man and duty of care were about.

Communitarian theory challenged the liberal view of the isolated self. (This is more in line with modern ‘wets’, whilst Communitarian theory says wealth is distributed according to social criteria.)

Social Contract Theory; the idea that individuals are held together by certain bonds. (That government rests on the consent of the governed: Rousseau, C18.) In its classical form, societies or governments were seen as the product of contract between individuals, in which the limited ‘nightwatchman’ government’s role was mainly to provide external defence, preserve negative liberty (freedom from) and property rights. (Ie; the minimalist government in UK described by Marx in the issued materials for contracts.)

20(iii) Equality

‘Equality of what’ is the central question. {Liberals believed were are all free to make choices.}

The libertarian right (the far right) see formal equality as the most important consideration. (Such as the freedom of rich and poor alike to stay at the Hilton.) Anatole France (1894) described, ironically, “The majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” Formal equality therefore allows equal opportunity to the individual without any reference to the unequal ability to use it.

Classical Liberals of C19 believed that while the state should provide equal treatment of individuals and avoid unequal treatment for the disadvantaged; ie, there should be no state provided obstacles to the enjoyment by some of citizenship rights enjoyed by others; (this is partly in response to past arbitrary treatment by the monarchy, whose will could meet out unequal treatment ‘lawfully’.)

IMPORTANT: Hayek was interested in “equality before the law,” claiming that there should be no state provided obstacles to the enjoyment by some of citizenship rights enjoyed by others.

21Connections between formal equality and negative liberty: formal equality (equal treatment by the state) requires everyone to have the same negative liberties (freedom from interference) protected in the same way.

Dworkin (1978) looked at how equality worked in with liberalism using an imaginary state (as in country). It went something like this: In fairyland, with all the people having similar ideals, the state could divvy up resources roughly equal and people could be happy. Though if people differed in their view of what was desirable ie form of living, job, etc., a market economy and democracy could be introduced. The market will then arrive at prices for things for trading, which people then do. This he says is cheaper and maybe more reliable than allowing a central bureaucracy (ie, Moscow) to guess or know what the people need. People would spend, earn, lose or gain different amounts and end up with an unequal amount of worth. Therefore inequality is an inevitable consequence of choice and fortune.

As in real life, people not only vary in their wishes but also their talents, needs and fortune. Dworkin therefore finds it “obviously obnoxious” that superior skill, luck or family allows someone to have more than the equal share of the community would apportion.

23Though it may be confusing at first, many (especially socialists) argue formal equality produces real life inequality. (Ie, formal equality to pay university fees results in real inequality in access to education.)

Protectionism increased from the third quarter of C19. Whether it survives the ‘new right’ agenda being increasingly implemented in Oz, such as financial deregulation, enterprise bargaining, consumption tax, up front university fees, etc., is uncertain.

23(iv) Justice

A formalist view of justice = if the court has observed the rules then the decision is just. (“A just outcome is arrived at only by a conscientious application of rules”.)

Realists (See 3) believed justice was always administered with substantive conceptions of justice, ie reference to the belief that the law was not perfect, therefore application of the law need not always be just. (Eg: deportation for stealing bread)

24Substantive concepts of justice hinge on three ideas:

(a) Justice as equality (b) Justice as desert (c) Justice as entitlement

(a) Justice as equality is based on the belief that like cases should be treated alike, with people being treated equally unless there are obvious/significant differences between them (the case should be judged on its merits and not on who is involved.)

(b) Justice as desert is the notion that people should get what they deserve; ie, In a contract in which each party had given up something and so deserved performance in return. {Liberals say individuals receive according to their contribution and should be accorded to what is necessary to encourage them to contribute.}

Desert theory (what a ridiculous name) is also known as meritorian theory (ie; merit).

25Meritorian theory is used in criminal law and penology in the definition of guilt and its punishment, and is expressed in the idea of mens rea concerning intention or recklessness (lapse of duty of care).

(c) Justice as entitlement is the idea that people have a right to good things (also = rights theory.)

Simpson (1988): “A just system of laws is one which distributes good things, of one kind or another, so that they are in the hands of those who are entitled to them, who have the best claim to them, who, as we often say, have a right to them.”

The idea of natural rights was discussed in C17 and C18 by people such as Thomas Paine, who set out a fairly anthropocentric view of the rights of autonomous individuals (ie; the king could no longer cut of someone’s head if he felt like it).

John Rawls (1971) developed a social contract theory incorporating 1/ equality in the assignment of basic liberty as compatible with a similar liberty for others and, 2/ that social and economic inequality are just only if they result in compensating benefits for everyone, particularly the disadvantaged.

26(v) Rights

Some Western country’s adoption of the principle that people had natural rights to life, liberty and property, is arguable a precondition for liberalism flourishing. In C19 the idea of natural rights became popular. Inalienable rights as laid down (posited) in law now had a meaning. If rights exist only by law, rights can be lost when the law changes (ie: the right to negative gear a property loan)

The ‘positivist’ view that rights were only socially or institutionally constructed (ie; Did Robinson Crusoe have rights?) criticised this view, and is associated with utilitarianism (the liberal idea that the value of things can be measured by their utility, to men usually). Jeremy Bentham, English lawyer and philosopher (1748-1832) was the most famous utilitarian. Many argue Australia is a Benthamite society.

{Rights Theory says: protect natural rights and liberties of the individual. There should be laws, police, etc. to protect rights but not intervene to redistribute wealth, ie; USA libertarian right liberalism.}

In C20 the idea of human rights, the proposition that people have rights because they are people rather than the law having given them rights, is much stronger (giving the ability to blacks in Australia and S. Africa the opportunity to challenge the law).

27Liberals who subscribe to pre-legal rights are ‘deontological liberals’ and get many of their ideas from a bloke called Kant (1724-1804) who argued ‘individuals are ends in themselves’ and should not be used merely as means to ends. (This comes up in arguments about aborting deformed babies, and the question of voluntary death of the infirmed (the right to die).)

Deontological liberals give priority to right over good and so do not try to evaluate an act in terms of consequences. This is based on the idea that society is pluralist (many people with different ideas) therefore it is better for society not to presuppose what is good for its members. An ‘opposite’ to deontological liberalism is teleological liberalism.

Teleological liberalism, expressed as utilitarianism, is the idea that things can be measured by their utility. The pleasure or pain the consequence of an action provided was a measure of its utility (usefulness). It is applied to society as roughly that ‘the good life is one which promotes the greatest happiness for the greatest number’.

Utilitarians define morally right as that which maximises the good. This annoys the deontological liberals because it allows individuals to be used as means to an end beyond themselves (ie: shut off the life support system for the good of those others in need of treatment). An action that is sought to commence outside the statutory time limit questions whether the right of the individual to sue or the collective good of orderly actions is more important.