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Page 1 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved Semester 2 2012Legal theory – semester 2, 2012 Question 1A – 75% (markers comments in red) 1. Introduction This essay will argue that the state of Marxistan does not have the Rule of Law (RoL). Using Fuller’s desiderata as a definition of the RoL, it is clear that Marxistans’s legal system lack clarity [underlined by marker] and laws that are applied equally to all. However, this essay will also argue that rather than displaing the customary rules that threaten the RoL, Marxistan should accept a plural legal system, with some modifications, as pluralism comes with many benefits, and in the case of Marxistan, seems to have created a stable system. [✓] 2. Does Marxistan have the RoL? A) Definition of the RoL Fuller holds a formal conception of the RoL which states that to have the RoL, a society must have rules that are clear, general, not retrospective, followed by the officials of the system, consistent with each other, known to all, relatively constant over time, and which demand only what is possible. Raz adds to this definition that the RoL is applied equally to all. Manderson points out that absolute equality under the law is not required, but no laws can be applied to only one group reasons not related to the voluntary choices of that group, because this would be arbitrary. It is clear that the legal system of Marxistan fails these tests as the same rules are not applied to everyone on an equal basis [the marker circled ‘Manderson’ and drew an arrow to here with a question mark], there is a lack of clarity and the rules are not known to all. B) Applied Equally to All The laws in Marxistan are not applied equally to all because different laws apply to different people case on the arbitrary [underlined by marker] condition of where they live; traditional law applies to those living in rural areas, and governmental applies to those living in urban areas. It is not clear that citizens may choose between the systems and this is hence arbitrary. [underlined by marker] C) Clarity The Marxistan legal system lacks clarity because of the plurality of the legal system. Tamanaha points out that plural legal systems create problems of clarity because it is not clear what rules apply. This would be most troublesome in crossover [underlined by marker] situations where members of the traditional legal system were involved in a dispute with someone from an urban Page 2 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved area. Marxistan does not appear to have laws that deal with which legal system has priority and hence does not deal with this issue of clarity. [✓] D) Known to All The rules of Marxistan are not known to most of the people in the system. [?] Because the rules in the urban areas arise organically [?] [underlined by marker] from the moral and cultural systems of the people, and do not appear to be written down, those external to these cultures (in the urban areas, would not be able to know the laws, E) Consequences It is clear from this Marxistan does not have the RoL. This could have profound consequences for the stability of the society and the ability of citizens to adequately plan their lives. However there are also advantages to such a system of legal plurality. [30] 3. Recommendations for Marxistan There are both advantages and disadvantages of Marxistan’s system of plurality. Marxistan must balance these interests and I would advice Marxistan not to completely displace the traditional rural legal systems but to create systems for an interacting plural system by creating systems of hierarchy and by creating systems of rights enforcement. A) Advantages of plurality Tamanaha argues that pluralists in legal systems should not be viewed as an incomplete legal system, but can be an ends in itself. He points out that the plural legal systems have the benefit of accepting rules that are often close to the people and understood by the people in a more profound way than those imposed from above. [✓] Dworkin [underlined by marker] agrees, saying that in a traditional legal system without secondary rules, as appreas to be the case in rural Marxistan, the people have greater control over their system which cannot be usurped by an elite group using secondary rules to dominate the society. This appears to be the case in Marxistan, where the rules arise organically from moral and cultural believes. The overwhelming voluntary adherence to the rules suggest that the people accept and feel a connection to them which may not be the case with other rules. [✓] Furthermore, Tamanaha (?) speaks of the importance of protecting rights of groups, which would include upholding their traditional legal systems. He points out that traditional ways of life promote individual liberal freedoms as they give people meaningful ways of understanding their choices in society, and actually create the choices as well. If the Marxistan government were to completely take away the traditional legal systems of their rural citizens, it may create profound cultural alienation and could lead to violent reprisals. Page 3 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved B) Disadvantages of Legal Plurality Despite this, the problems of lack of clarity in the law, as discussed above, cannot be ignored. There must be systems to deal with the interaction between the different systems which will undoubtedly occur. [✓] Further, there may be concern that the lack of RoL will create immoral laws. Fuller states that legal systems that comply with his ‘desiderata’ have an ‘inner morality’ which has an affinity with good. He claims that laws in such a system are more likely to be moral because there are at least some principles that can be used to keep the government to account. Indeed, Okin agues that upholding traditional practices of groups, particularly their legal practices, can have negative effects for women. Okin notes that most traditional cultures focus on issues of reproduction, health and the domestic realm. She says that minority cultures often have domination of women as one of their central aims. Practices such as female genital mutilation and condoning marital rape are examples of this. Okin points out that this discrimination is often hidden in the domestic sphere and so protection of groups rights can serve to reinforce and hide the violations of women’s individual rights. It is unclear whether rural citizens of Marxistan have practices that are adverse to women’s rights, but this would have to be considered. [✓] C) Solutions for Marxistan It is clear from the above analysis that there are many benefits of pluralism for Marxistan. It appears moreover that the current system functions quite well, with most citizens happy with it and voluntarily obeying the rules in place. Hence the traditional legal systems should not be completely displaced. In order to cure the lack of clarity in the legal system, Marxistan must take action. Marxistan should implement rules of what is to ccur when the two legal systems interact. [✓] This will inevtibley involve some form of hierarch, and it is likely that a viable option will involve central government law prevailing where there is a cross over situation. An independent judiciary and codified laws should be created in urban areas. Raz points out that these are necessary for enforcing a non arbitrary system and this will be required to resolve cross-over issues. To cure issues of anti-feminist practices in rural areas, Marxistan should ensure that the new courts can apply the ICCPR, so that women can ensure their individual rights are upheld. However this will not end problems occurring covertly in the domestic sphere and Marxistan should create socialization projects to educate rural citizens about female equality, and attempt to lead the societies to acceptable levels of equality. 3. Conclusion Page 4 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved While Marxistan does not have the RoL because its legal system lacks clarity, equal application and widespread knowledge of laws, there are benefits of this plural system. Marxistan can ensure the rights of groups who adhere to traditional practices, and can ensure they continue to feel a connection to their law by allowing them to continue to practice their customs but in an overall framework of hierarchy and reinforcement of individual rights (i) Argues there is no RoL – working through criteria rather than theories 35 (ii) Argues against displacement – But need for ‘conflict of laws’ – Refers to Tamanaha and Okin 75 Question 3A – 80% (markers comments in red – all underlining is that of the marker) 1. Introduction The law cannot be viewed as a completely set system of rules that offers a clear solution to every legal issue that will arise. Many theorists believe that there are ‘gaps’ in the law, [✓] in that either the law runs out completely, or there are point at which the law does not hive a clear answer, but techniques of choice and moral reasoning must be used to come to a conclusion. This essay will firstly consider the nature of law and conclude that t while claims of ‘gaps’ in the law can be overstated, in appellate courts the stable and accepted law will not create a clear answer, and hence that many ‘gaps’ exist in the law. This essay will secondly argue that judges must fill these gaps because they are under a duty to decide disputes brought to them, and they also play a role in creating the law. This essay will conclude by arguing in line with Cane’s argument, [✓] that judges should decided such cases the way they this is best, which may often require them to use their own moral judgements. 2. To What Extent are there Gaps in the Law? A) Hart Hart and other legal positivists think that the law comes from a social source and hence can be identified without recourse to morals. Hart nevertheless acknowledge d that this law would at times ‘run out’ and leave ‘gaps’. He attributed this to the ‘open textured’ nature of the law whereby legislature has incomplete intentions and language must be interpreted, leading to a lack of law in certain circumstances. B) Other Schools of Thought Page 5 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved However many anti-positivists have argued that there are more ‘gaps’ than Hart assumed. It is argued that rather than the law running out at certain points, the law is always open to interpretation. Realists such as Stone argue that there is never one correct answer to a legal question. Rather, the fact that language must be interpreted, and the fact that ratios of cases can be identified at many different levels of generality shows that judges are always exercising choice when coming to a legal decision. Anti-positivists such as Fuller and Dworkin similarly [differently] argue that law must be identified with reference to morals. Dworkin says that rather than law coming from a ‘social source’ that sometimes runs out, when the law becomes unclear, legal reasoning simply takes on a moral aspect whereby judges should consider all the past ‘legal data’ and consider it in its best moral light to come to a decision. Realist and anti-positvist theories suggest that law has many more ‘gaps’ that Hart assumes. Realists and anti-positivists argue that the law is full of such ‘gaps’ and areas of choice that are filled by different forms of reasoning. This view is most persuasive given that judgements across time can be shown to have included moral reasoning to justify conclusions. Further, disagreement between eminent judges supports the argument that there is never one conclusion but multiple correct ones. Despite this, the extent to which the law is full of ‘gaps’ can be overstated. It should be noted that in lower level courts, judges most often deal with straight forward cases where the law is quite settled and accepted, and hence justifies one conclusion. [✓] 3. Should Judges Fill These Gaps in the Law? Judges should fill gaps in the law. When legal disputes are brought before the courts, judges are obliged to find legal solutions. They cannot simply decline to make a ruling. Furthermore, it is the role of judges to create law to a certain extent by evolving the common law. Eisenberg points out that judges play an important role in enriching the supply of legal rules in our system. The legislature cannot meet al the demand for rules and so judges contribute by evolving rules to cover cases that may not have been envisioned by the legislatures. In addition, Dworkin argues that the judiciary play a role in slowly improving the law. By interpreting the law in its best moral light, they are involved in incrementally making the law the best it can be. [✓] Hence it is clear that not only must judges fill gaps when hey adjudicate, but that doing so carries benefits for our legal system. 4. Should judges rely on their own moral judgements in filling gaps? Page 6 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved A) Arguments Against Eisenberg argues that judges should not use their own moral judgments to fill gaps in the law. He argues that people come to the law to have their disputes decided on existing standards, and if cases are decided on judges’ morals this would not be the case. He further notes that judges are unelected, meaning their moral beliefs do not have legitimacy from the people. Eisenberg instead argues that uncertain cases should be decided by judges applying moral standards that have broad acceptance from the people. Krgier has a similar argument, saying that if judges use their own moral beliefs, decisions become arbitrary, and the rule of law ‘threatens to degenerate into the rule of men’. B) Arguments for Judges’ Morals Eisenberg’s argument is fundamentally flawed. Of course it would be preferred for cases to be decided according to society’s moral standards. However, Cane points out that when judges say that they are referring to such standards, their opinions are not backed by evidence. Surveys showing that certain moral standards are held by scoiety are not used, and would in fact probably by beyond the financial capabilities of the state. Hence ‘broadly held social propositions’ are often a mark for a judge’s own moral views. [✓] Instead of this, Case suggests that judges must decide cases where there are ‘gaps’ by deciding in the way they think is best. This may involve using their own morals, or referring to broadly held principles if they believe this is justified. Cane points out that judges are appointed to do justice as they see fit and that this is all we can reasonably expect of them. He adds that judges should give reasons for any moral choice they make in order to justify this to society. This means of judges deciding difficult cases should be preferred because it promotes honesty in judicial decisions by ensuring the real reasons for decisions are known. [✓] What is more, Eisgruber notes that judges are chosen partly on the basis of holding views that are in line with society’s. Hence letting judges make moral decisions is unlikely to result in a body of decisions that are greatly at odds with what society wants anyway. Finally, Cane argues that any decisions made by judges that are unsatisfactory could be resolved by the legislature. In Australia, we have a strong legislature that we can rely on to provide the bulk of legal rules and to legislate when necessary to bring judicial decisions into line with society’s morals. Cane points out that people can lobby the legislature, and the legislature does have the capacity to carry out assessments of the population’s morals and desires, making them more capable of creating law on this basis. 5. Conclusion It is clear that the law involves ‘gaps’ which come from law running out in contentious situations, as well as continual need for judicial choice, and interpretation of legislative language. Judges must fill these gaps because they must decide cases that are before them, and what is Page 7 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved more, they play an important role in enriching the supply of laws to our legal system. Finally judges should use their own beliefs about what is the best decision to fill these ‘gaps’. Recourse to broadly held moral principles is illusory, and judges should instead be open and honest about the reasons for decisions so that they can be corrected by the legislature when necessary. - Clearly addressed all parts Clear consistent argument Discussed Hart, Dworkin + Fuller, Realists, Eisenberg and Cane in detail 80 Page 8 of 8 ANU Law Students’ Society © Copyright 2013, All Rights Reserved