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Liberalism
Rights and Liberties
Jurisprudence
Regulation
Judicial Reasoning
Ethics
Law and Nature
Liberalism
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Liberalism is the ideological basis of Australia’s legal system
Prioritises individual freedom, rights, private property, equality, rationality and utility
It can be contrasted with totalitarianism, anarchism, socialism and communism
The structure of the modern law was founded in the 19th century, when liberalism was
dominant
It’s influence is not always obvious because many liberal values are seen as universal truths,
for example, private property
Key elements: liberty, reason, equality, rights, private property
Liberty
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Emphasises individual liberty
John Stuart Mill’s harm principle: only fair exercise of power by the government is to prevent
individuals harming each other
Minimalist government
Types of liberty
o Positive liberty: freedom to better yourself through opportunities
o Negative liberty: freedom from interference
o Domestic liberty: Balfour v Balfour, the state can regulate your public but not your
private life
o Economic liberty: neoliberalism, laissez-faire economics – does this lead to good
outcomes for everyone? Adam Smith says yes.
Reason
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Something must be rationally explained and justified to be accepted
The law must be the outcome of sound logical reasoning
Jeremy Bentham: utilitarianism, act or rule
Rights
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Positive and negative rights
17th and 18th centuries: ‘natural rights’
19th century: rights are granted by legal rules
20th century: human rights
Focus on individualism: individual rights and liberties are hugely important
Private property
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Bundle of rights including possession, use and distribution of something
Fundamental principle of liberalism
Efficient, right to the fruits of labour etc
Equality
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Equality before the law means everyone has the same rights and obligations regardless of
gender, age, sex etc
UDHR and ICCPR
Formal equality vs substantive equality
Rights and Liberties
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Progression of thinking about rights (see above)
Tension between rights and utilitarianism (i.e. individual rights vs the greater good)
Hobbes: 1651 Leviathan says that in the state of nature life is solitary, poor, nasty, brutish
and short, so we form a social contract to give up some rights to a sovereign
Locke: 1689 Two Treatises state that we need the sovereign to protect our property and the
law to resolve property disputes
Bill of Rights
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1689 English Bill of Rights
o freedom of speech in parliament;
o freedom from cruel and unusual punishments, and excessive bail; and
o freedom from fines and forfeitures without trial.
o Constitutional monarchy, parliamentary supremacy
1791 US Bill of Rights
o Freedom of speech, press, assembly and petition
o Right to keep and bear arms
o Protection from quartering of troops
o Protection from unreasonable search and seizure
o Due process, double jeopardy, self-incrimination, eminent domain
o Trial by jury, rights of accused, right to counsel
o Civil trial by jury
o Prohibition of excessive bail, and cruel and unusual punishment
o Protection of rights not specifically enumerated in the Bill of Rights
o Powers of states and people
Also international human rights declarations (UDHR, ICCPR etc)
Rights and Liberties in Australia
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Western democracies with a bill of rights:
o UK, USA, Canada, New Zealand, France, Germany, Italy, Greece, Finland
Western democracies without a bill of rights:
o Australia
Rights in the Australian Constitution
o the right to direct elections: ss 7, 24;
o the right to insist that property be compulsorily acquired on just terms: s 51(xxxi);
o the right to trial by jury: s 80;
o the right to freedom of interstate trade, commerce and intercourse: s 92;
o the right to freedom of religion: s 116; and
o the right to non-discrimination of state residents: s 117.
o IMPLIED right to freedom of political communication
Jurisprudence
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Branch of philosophy concerned with the nature of the law
Theoretical questions about the nature of law/legal systems
o Purposes of law
o Resolve disputes
o Create social order
o Reflect community values
o Help the disadvantaged
o Stabilise the economy
o Prevent misuse of power
Difference between
o What law ought to be (normative, value laden)
o What law is (rule-bound, requiring coherency)
Do laws have to be consistent with morality and justice?
o Natural law theory
o Legal positivism
Natural Law Theory
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Rules reflect God’s law, the law of nature and objective principles of morality and justice
o Discoverable by reason
o Superior to state-made law
o Universal, applies to all, unchanging
E.g. there is a principle that children should be looked after by their parents, therefore
parents have some legal obligations to children
Aristotle: lex injusta non est lex
Thomas Aquinas : all human law is judged against natural law, and because well-made
human law is the law od God, it must be obeyed
John Jocke: overthrow a government which fails to protect life, liberty and the pursuit of
happiness
Natural Law Theory Today:
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Recognition of universal moral values according to which wartime atrocities etc can be
objectively condemned
Bill of rights
Basic/universal human rights
Legal Positivism
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Focus not on what the law ought to be, but what it is
Law is a social construct, created by people – ‘the social thesis’’
Unconnected to morality ‘separation theory’’
Locke: created by men, all that matters
Bentham: must focus on what law is
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John Austin: ‘command theory’ – law is a set of commands from a sovereign obeyed because
of a threat of punishment
Hans Kelsen: scientifically rational system of coercive norms that form a hierarchy
o All laws are validated by a superior law
o Superior law s are validated by the ‘grundnorm’
HLA Hart: system of primary and secondary legal rules which derive their legitimacy from the
ultimate rule of recognition
Feminism in Law
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Is substantive or formal equality the goal?
There are boundaries to women in the legal profession (as in other professions)
o Sexual harassment
o Childcare
o Housework
o The third shift
Regulation
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Regulation has a long history
Tudor period, industrial revolution, welfare state
1970s: renewed focus on regulation
1980s, 1990s
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Privatisation, Reagonomics, Thatcherism
Cost of regulation, red tape, economic deregulation and free market ideologies
Mass deregulation
Mid to late 1990s – 2000s
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Development of post-privatised state
Away from neoliberal approaches
Accountability, efficiency, fairness
Regulated industry
Currently
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Shift away from command and control, compliance and deterrence based theories
Move towards increasing self-regulation
Move towards responsive regulation
Command and Control Theory
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Exercise of government influence by imposing standards backed by sanctions
Using the force of law to prohibit certain forms of conduct
Demand positive action by regulated
Lay down conditions for entry into a sector
Problems
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Legalism: strangles creativity and restricts flexibility
Enforcement: box-ticking, name and shame
Capture: relies on those who are regulated to comply
Self-Regulation
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Requires an organisation/group to regulate itself or act governmentally
Self-regulation appears to lack government involvement
o In practice, founded on implicit governmental threat
o Don’t act or behave correctly, then we’ll step in
Advantages Include
o Expertise
o Greater understandings of regulated entities and cultures
o Self-regulators have special knowledge of regulated
o Increases regulatory effectiveness
o Cost efficient and easier to implement
Problems
o Lack of mandate
o Capture
o Enforcement
o Accountability
Responsive Regulation
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Ian Ayers and John Braithewaite
Reglatory strategies pyramid, enforcement sanctions pyramid
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Legal problems are multi-faceted
Important to think about social and cultural considerations
Go beyond ideas of command and control
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Judicial Reasoning
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Role of the Judge
o Determines the relevant law to be applied
o Ensures that the rules of evidence and procedure are followed
o Resolves questions of law and when there’s no jury questions of fact also
Doctrine of precedent
o The law is consistent and predictable
o There must be good reason to depart from it
Judges have different tenure
o Most judges are respected barristers, and work through the court hierarchy
o Independent of executive government which appoints them
o Immune from attempts to lower salary
o Liability: immune
o Judges can very rarely be removed
o Separation of powers
Judicial Reasoning
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Legal reasoning used to make a decision by a judge
Is this impartial, objective and rational?
Is this just a process, or is there more to it?
Orthodox Views
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Judges make practical, rational decisions based on the law
No intuitive/emotional response, do not take consequences into account
IRAC: use only the existing law to make a decision
Strict Legal Formalism
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Judges IRAC all day every day
The judge should only apply existing legal rules, and should not refer to external
considerations such as political or moral values, or practical consequences.
Benefits:
It increases the likelihood that those who are subject to the law will know what conduct the
law permits or prohibits.
Judges may be biased if they try to do justice on a case-by-case basis.
Formalism is consistent with democratic theory.
Moderate Legal Formalism
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Kirby J: common law is naturally creative
HLA Hart: two exaggerations about the law
1) Legal system is a mechanical, closed and logical system
2) Legal rules do not dictate answers to any legal cases
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Legal rules are MOSTLY determinate but not totally
CORE OF CLEAR MEANING
PENUMBRA OF UNCERTAINTY
CLEAR EXCLUSION
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Judges can have discretion in hard cases
Lon Fuller: two objections
1) Not all rules have a core of clear meaning – it comes from context
2) Judges should not always apply rules when the meaning is clear anyway
Dworkin: in hard cases, distil a principle
Radical Views
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Rejection of formalist thinking - understand law as culture
o Law is not separate from social structures and practices.
o Law is not value neutral.
o Law can only be understood by reference to social context.
Legal Realists and Critical Legal Studies
Legal Realists
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Oliver Wendell Holmes Jr
o Law is not determinate
o Law is not neutral and objective
o Law cannot be viewed in isolation
There is not a ‘correct legal decision’
Critical Legal Studies
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1970s and 1980s at Harvard Law School
o Law is not determinate
o Law is not neutral and objective
o Law cannot be viewed in isolation
Later splinters into race/feminist theories
Judicial reasoning
o Indeterminacy
o Involves external considerations
o Goes further: this process allows power to remain in the hands of a few people
Ethics
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Consequentialism, e.g. utilitarianism
Deontologicalism, e.g. Kantian theory
Virtue ethics
Ethics of care
Ethical rules influence legal rules, and legal rules influence ethical rules
Sometimes law and ethics conflict (i.e. something may be legal but unethical)
Traditional View of Ethics in Law
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“An advocate, by the sacred duty which he owes his client, knows in the discharge of that
office but one person in the world, that client and no other. To save that client by all
expedient means, to protect that client at all hazards and costs”
This is essential to the operation of the adversarial system
Provides a rule that gives the greatest access to justice for all
However, this will sometimes achieve undesirable results and may develop negative traits in
lawyers
Responsible Lawyering
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Moral activism
A lawyer is an agent of the legal system
There is a responsibility to ensure the fairest working of that system
Lawyers are bound by morality
Ethics of Care
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Focus not on individual client, but on relationships and the community
Lawyer has a more holistic duty to act in accordance with the best interests of the
community
Law and Nature
Is moral status possessed by?
a) Humans only?
b) Animals?
c) All living organisms?
Humans Only
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This is called anthropocentrism
Obligation to animals and the environment is to the extent that is suits human purposes
Environmental concerns cached in human effects (e.g. pollution threatens human health)
Justifications
o Religious
o Scientific
o Catesian
o Kantian
Religious
o Man is in charge of the earth and all the animals as per Genesis
Scientific
o Man is at the top of the food chain
Descartes
o An animal is not conscious, and therefore we owe it no more duty than a mere
mechanical animal
Kant
o No specific duty to animals, however treatment of animals influences and reflects
the way we treat other humans
Animal Rights
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Two main positions
Animals have some rights though not as many as humans
Animals have equal rights to humans
Unequal Moral Status
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Being sentient gives moral status
Animals are sentient
Animals therefore have moral status
Humans have greater rights on the grounds that they are human beings
Equal Moral Status
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Giving unequal status is speciesism
Peter Sing said this was the same as racism or sexism
In order to justify it, there must be something intrinsic to humans that animals do not have
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Any possible property is lacked by at least some humans, but they still have equal moral
status
Any property that all human beings have, some animals also have
Therefore animals have equal moral status
All Living Entities
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We have duties to holistic entities, for example, to the environment and ecosystems
This is used to justify things like culling to preserve ecosystems
Radical ecology calls for us to change everything we do in relation to the environment
This is because environmental law is generally anthropocentric
Animal Law
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Animals are treated as chattels
They equate to objects
Animal welfare laws regulate the treatment of animals
Animal Care and Protection Act QLD 2001
Definitional of animal cruelty and duty of care to animals