URGENT NOTE:
TO JURISPRUDENCE STUDENTS
These outlines were produced by Dr Chris Birch
(from the Summer 2004-05 Session)
and should be used as reference materials only
LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2001
JURISPRUDENCE LECTURE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course and in
understanding the recommended reading. The outline is not a substitute for the lectures and
reading. The outline is not intended to be comprehensive. Students who have merely
familiarised themselves with the outline but not attended the lectures and read the prescribed
text and readings will be inadequately prepared for the exam and at substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly ask
students to apply the concepts and arguments taught in the course to an issue or problem.
Students will be best prepared to deal with the paper who have attended the lectures or
weekend schools and read widely.
LECTURE 1
THE DOCTRINE OF PRECEDENT AND THE AMERICAN REALISTS
INTRODUCTION TO THE COURSE
Reasons for studying legal philosophy
The relationship between law and philosophy
The course will concentrate on three principal themes, namely: 1.
What is the nature of law and what does it mean to say a law exists?
2.
How do lawyers reason, is there a special type of legal reasoning?
3.
What is the relationship between law and morality?
2
THE DOCTRINE OF PRECEDENT
The doctrine of precedent depends upon the principle of stare decisis, the principle that courts in a
hierarchy are bound by the decisions of those above them in the hierarchy.
That part of a decision that binds a judge is the ratio decidendi. A key problem for the doctrine of
precedent is determining the ratio of cases.
Why Ought We to Follow Past Decisions?
Ought we to decide case B in a particular fashion merely because case A was decided in that fashion
in the past?
Chaim Perelman argued that the doctrine of precedent reflects the principle of formal justice.
The idea that like cases should be decided alike.
There are pragmatic arguments for following precedents. The need for citizens and lawyers to
have guidance on how courts will behave in the future.
If judges did not follow the law it could be argued that they are making the law. Judicial law
making would conflict with the principle that the exercise of law-making power should have a
democratic mandate. It would violate the separation of powers doctrine.
What is the Ratio?
Cross in ‘Precedent in English Law’ says: “The rule of law expressly or impliedly treated by the judge as a necessary step in
reaching his/her conclusion, having regard to the line of reasoning adopted by him/her.”
Attempts to provide a formal or logical scheme for extracting the ratio from past cases have been
largely unsuccessful. See Wambaugh’s test. See Goodhart’s Theory.
It appears to follow that the ratio of a case is what later judges decide the ratio to be.
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Would there be a difficulty, if any, if judges declared when they handed down decisions what the
ratio of the decision was?
THE AMERICAN REALISTS
The American realists were a group of jurists writing at the end of the 19th and first half of the
20th centuries principally in the United States. Some were judges and others were legal
academics. Amongst the more prominent of the American realists were: 

Oliver Wendell Holmes (judge of the US Supreme Court)

Karl Llewylnn (academic)

John Chipman Gray (academic 1835-1950).

Jerome Frank (academic, government lawyer and later US Federal judge).
The American realists criticised what they called formalism or mechanical jurisprudence. The
notion that cases represented rules and that these rules could be applied to the facts as found so
that the verdict could be arrived at deductively. Legal reasons might still be a constraint on the
type of verdicts that could be reached. (See Joseph Hutcheson, Martin Golding and Richard
Wasserstrom).
In 1930 Jerome Frank published Law and the Modern Mind. This advocated a much more radical
version of American realism. Frank argued that, amongst other things: 

Legal reasoning could never be fully deductive


In ascertaining the content of legal rules judges were only bound by whatever they
considered the rule to be. They determined to what extent they were bound.


The law is a rich set of rules with many ways of arguing to any particular result.
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
The law contained such intrinsic complexity and uncertainty that judges could always
formulate a respectable legal argument to justify any particular outcome of a case.


In addition to the scope for judges to redefine the law, the outcome of the case was also
determined by the factual findings and here judges again had a broad discretion as to what
findings to make.
In consequence of the above matters Frank argued that judges are in no logical sense ever
constrained by previous decisions or by any abstract set of legal concepts. Judges are always free
to justify any result they wish.
A case study will be undertaken of the development of a line of precedent using the
following decisions: 

Permanent Trustee Co v Freedom From Hunger (1991) 25 NSWLR 140


Troja v Troja (1994) 33 NSWLR 269


Public Trustee v Hyles (1993) 33 NSWLR 154
The historical context and implications of American realism
A number of the American realists were social reformers who were concerned to show that the
law was not a fixed body of rules but capable of adaptation.
American realists argued that there could never be logically determinate answers and courts
should be open about the fact that judges invent the law as they apply it.
American realists argued that theories of legal reasoning should be able to provide reliable means
of predicting what judges will do in the future. They criticised formalism as an inadequate
predictive device.
5
American realism led to studies of judicial psychology and judicial behaviouralism and the
development of so-called jurimetrics.
Point of view and legal theory
The American realists looked at the legal system from the point of view of a lawyer or client
wanting to know what the likely outcome of a case will be.
Criticism of American realism


One primary criticism is that it fails as a theory of justification. Telling judges that they
invent the law as they apply it does not provide guidance as to how they should invent the
law.


Many lawyers still have a strong sense that there is a constraint on the outcome resulting
from legal concepts. American realism does not explain this constraint.


American realism appears to undermine the doctrine of the separation of powers.
LECTURE 2
RONALD DWORKIN: LAW AS INTEGRITY
Ronald Dworkin was born in 1931. He was appointed to the Chair of Jurisprudence at Oxford
University in 1969. His most important work is Laws Empire published in 1986 and he is still a
prolific writer and commentator on the American legal scene.
Dworkin’s work involves an attack on the idea that law and morality are clearly separated
concepts.
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TYPES OF MORAL THEORY
Consequentalist Moral Theories
Non-consequentialist Moral Theories
Eg. Do what will produce the best outcome for
Eg Do what is right, just, etc without regard to
the largest number of people
consequences
Subjectivist Moral Theories
Objectivism
Eg. Morality only reflects personal
Eg. Morality expresses claims binding on
preferences. We cannot rationally disagree on
everyone. It is possible to have rational moral
moral issues.
disagreements.
Sceptical Moral Theories
Strong Objective Moral Theories
Eg. We cannot prove any particular moral
Eg. We can demonstrate rationally that some
theory is right. There is no such thing as moral
moral theories are better, or that there is moral
truth.
truth or that some moral theories would be
irrational
This table is not an exhaustive way of categorising moral theories.
Dworkin advocates a non-consequentialist theory of moral rights. He believes that moral claims
are at least objective in the first sense described above.
Dworkin’s Criticisms of Positivism
Dworkin’s early essays particularly criticise HLA Hart’s positivist theory of law. This was the
theory that: -
(i)
law consists of a body of rules;
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(ii)
rules have a central core of meaning where their application is clear but with a penumbra
of uncertainty;
(iii)
where cases fall within the penumbra of rules there is no right answer to the legal
question;
(iv)
where there is no right answer judges exercise a judicial discretion and make law by
creating a new rule; and
(v)
judges are thus law makers, although they only make law piecemeal.
Dworkin criticised this theory on the following grounds: -
(i)
there are no gaps in the law, if an existing rule does not prohibit conduct it is lawful;
(ii)
judges do not fill gaps they can only change existing rules or principles;
(iii)
if judges made law in the fashion Hart suggested they would be acting as legislators; and
(iv)
if there was no right answer to a case it could not be said that anyone had a right to the
outcome.
Dworkin’s Theory of Law


Objectivity. There are right answers to legal problems;


Principles: Law is not just rules but contains principles;


Institutional Support. Judges cannot apply any principles, they apply those principles which
have institutional support;


Rights. Rights are trumps. They override consequentalist moral demands.
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Principles v Policies
Politicians engage in policy reasoning. Policy reasoning is consequentalist, eg. passing law X
will improve overall welfare.
Principles reflect rights, eg, the principle that one should not discriminate upholds each citizen’s
rights not to be discriminated against.
Judges do not have the means or resources to properly take into account policy issues. Judges
should decide cases by only having regard to legal rights, but in determining what the law is
judges also take into account principles.
Dworkin’s Theory of the One Right Answer
Dworkin seeks to overcome the sceptical conclusion of the realists. Initially Dworkin argued that
principles were a device by which judges could justify right answers.
In later works, particularly ‘Laws Empire’ Dworkin appealed to notions of overall coherence of
the law to demonstrate why there is a right answer. He used a number of metaphors and
analogies to explain how there is a right legal answer to all legal problems.
1.
the hypothetical best legal decision arrived at by the hypothetical best possible
judge Hercules;
2.
the concept of best fit;
3.
the metaphor of the serial novel;
All these arguments seek to show that judges should strive to arrive at the best justification in
political and moral terms of past decisions.
9
A Case Study in Legal Reasoning using Dworkin’s Theory
Yerkey v Jones (1939) 63 CLR 649
European Asian Bank of Australia Ltd v Kurland (1985) 80 NSWLR 192
Garcia v National Australia Bank Limited (1988) 184 CLR 395
LECTURE 3
THE PHILOSOPHY OF LANGUAGE AND LEGAL INTERPRETATION
Introduction
One of the central concerns of philosophy throughout the 20th Century has been the nature of
language and in particular the problem of meaning.
Language has many remarkable properties. It can be viewed as a system of rules capable of
endless iteration. The average competent speaker of English with only basic grammatical rules
can construct (at least theoretically) an infinite number of sentences in the language.
Language also points out to the world. It is often said of words or sentences that they refer. A
description I give of Sydney is in some relevant way, about Sydney. This ability to describe, to
be about things, and to be true or false, is associated with the meaning of sentences. It is the
theory of meaning that has been the principal concern of philosophy.
Theories of Meaning
Contemporary philosophy of language was given its impetus by the work of Gottlob Frege
(1848-1925) who lectured at the University at Jena from 1874 to 1918. Frege argued that the
meaning of words are objective things capable of being shared by all competent users and not to
10
be identified with the psychological states of speakers. Frege’s anti-psychologism nevertheless
leaves the nature of meaning somewhat mysterious.
In the 1970’s Davidson sought to develop a theory of meaning in which meanings were objective
but without the mystery of Frege’s anti-psychologism. His theory is referred to as truth
conditional semantics.
On this theory the meaning of a sentence (sentences being the primary bearers of meaning) is
represented by a specification of the conditions which would render the sentence true.
There will clearly be difficulties in applying this theory to sentences that do not obviously have
truth value (such as imperative sentences “get up and shut the door”).
Meaning and Intentionality
Truth conditional semantics captures some of the public aspects of meaning and part of the way
language may describe or represent the world. But language is also intentional. Philosophers use
this term in a technical sense.
Intentionality is that quality of being directed towards or referring to something apart from the
speaker. If I utter the sentence, “Paris is a beautiful city”, we understand that the sentence uttered
by me refers to and is about the capital of France. This, we also recognise, is in some way
associated with actual beliefs and intentions on my part.
So if a computer produced the sentence, “Paris is a beautiful city”, through the operation of a
random sentence generator, we would not understand that sentence to be about the capital of
France. At least on one philosophical view the signs produced by the computer would lack
intentionality and meaning (see Searle’s famous Chinese room thought experiment)(unless we
could find that the programmer had intended the computer to possibly say such a thing).
An important alternative theory to truth conditional semantics seeks to explain the nature of
meaning by reference to a speaker’s intention.
11
In 1957 in the article “Meaning” in the Philosophical Review, volume 66, Grice sought to show
that the meaning of a sentence is associated with the intentions of a speaker, and the intentions of
speakers will be to induce a belief in the mind of hearers in consequence of the speech. Grice
provides the following formulation as an analysis of meaning.
“John means that P to Jane by doing X if:
a.
John does X
b.
With the intention that Jane believe that P
c.
John further intends that Jane recognises John’s intention in b. above
d.
John further intends that Jane’s belief comes about through her recognition of
John’s intention in b.”
We often distinguish between utterer’s meaning, what the speaker actually intended his or her
words to mean, and so called literary or dictionary meaning, namely what those words would
mean if uttered by a normal competent speaker of the language on a typical occasion for their
use. Grice sought to explain dictionary meaning in terms of speaker’s meaning.
Theories of Meaning and Legal Interpretation
Does a constitution mean what was intended by the original drafters, or must it be reinterpreted
in each age? Does it have one meaning, or does its meaning shift, or does it have multiple
meanings?
In constitutional law the “will” theory of the nature of law and legal validity, that laws are
commands of the sovereign political body, appears to fit with the utterer’s intention theory of
meaning.
12
The utterer’s intention theory of constitutional and legal interpretation
This theory still has some adherents (such as Larry Alexander). We might read some documents
primarily to ascertain the speaker’s intention. However, if we read a constitutional text as if it is
merely a record of the intentions of the drafters and we treat those intentions as binding legal
rules, numerous practical problems arise.
1.
Interpretations can never be settled by precedent as new historical evidence may reveal
that we had previously misunderstood the drafters’ intentions and we therefore have to
read the constitution differently.
2.
Whose intentions are to count in any event? Most constitutions (or statutes) have not one
but many authors and their drafting was a complex process.
3.
Legal documents are often expressed in general language but the drafters could never
have had in mind all the possible instances to which the words might apply. Do the words
only mean those things the drafters actually had in mind? In which case the meaning of
the document will be severely limited.
4.
If we treat the document has having meaning in regard to instances that were never in the
minds of the drafters, how do we determine what meaning it had? Do we ask what
intentions or thoughts they would have had if they had turned their mind to the issue?
5.
If we adopt the last strategy, what other matters must we attribute to the founding fathers
to ascertain their counterfactual beliefs? What would Sir Samuel Griffith have thought if
asked in 1895 whether the Commonwealth government should be allowed to regulate
television broadcasting?
6.
Is there even a fact of the matter as to what counterfactual intentions the drafters could be
said to have?
13
Scalia and Textualism
Difficulties with the speaker’s intention theory of meaning has led to a return to literal or
dictionary meaning by some jurists as the explanation of the meaning of a legal text. This
approach is most frequently referred to as textualism. Most current high court judges in Australia
would describe themselves as textualists. The leading English language proponent of textualism
is Antonin Scalia, a current judge of United States Supreme Court (see his A Matter of
Interpretation: Federal Courts and the Law, 1997).
Scalia says that the meaning of the constitution is the meaning given to the words by the normal
canons of language use that governed the language at the time the constitution was drafted. One
is thus not concerned with the actual subjective states of any of the drafters.
Scalia believes that this theory provides a single invariant meaning of the constitution, its correct
and only meaning.
Difficulties for Scalia’s Theory
There will still be problems of counterfactual scope. How do we know whether normal users of
English in the United States in the 1780’s or Australia in the 1890’s intended their words to
mean the same as those words when used today?
It is not customary in constitutional cases to call linguistic historians to give evidence of change
of the meaning of words.
The constitution also remains frozen in time and unable to adopt to new social and political
circumstances unforeseen by the drafters.
14
Dworkin’s Theory of Expectation Originalism
Dworkin contrasts his view with what he calls the semantic originalism of Scalia. Dworkin
argues that the drafters of the constitution must have known that unforeseen circumstances
would arise and must have intended that later generations would need to interpret the constitution
afresh to meet those unforeseen circumstances.
Dworkin in effect argues that the constitution was written with the intention or expectation of
being adapted.
Dworkin argues that the process of adaptation is not unconstrained. Dworkin relies upon his
other general theories of “best fit” and “best theory” of the constitution to explain how judges
will arrive at a correct answer. Theories like Dworkin’s have sometimes been described as
“living constitution” theories.
Stanley Fish
Fish argued in a long series of articles and books that there is in effect no such thing as literal
meaning, or meaning in the text, if by that is meant something read off the face of the document
without any prior process of interpretation. (see his books “Doing What Comes Naturally” and
“There is No Such Thing as Free Speech”).
In interpreting any document I firstly have to make judgments about the nature and type of
document it is. In a sense this is recognised by the law through the legal rule permitting
extraneous evidence in determining whether a document is intended to be contractual or not, (see
Ayre Great Lakes Pty Ltd v KS Easter [1985] 2 NSWLR 309).
Fish generalises this proposition, arguing that in any reading of any legal text the establishment
of the meaning is the result of an interpretative process which relies upon the interpreter’s
knowledge about the nature and purpose of the document, and also depends upon the
interpreter’s values and beliefs.
15
Fish argues that the establishment of consensus about the meaning of a document is the result of
shared interpretative practices amongst what Fish calls “interpretative communities”.
LECTURE 4
THE NATURE OF LAW
Introduction
Law displays a dual nature. On the one hand it is clearly a sociological phenomena. We can
observe aspects of law within the spacio-temporal world. We observe courts, police, people
signing contracts, wills, etc., you can imagine law as a subject of sociological or anthropological
study.
On the other hand, law also displays a theoretical or ideal aspect. We can reason about legal rules
using logic or other principles of inference without making any empirical observation.
The 17th and 18th Century natural law tradition Grotius and Puffendorf.
Grotius (1583-1645).
Puffendorf (1632-1694).
The natural lawyers argued that the sociability of man was one of his essential traits, and that
therefore there had to be rules to govern that social contact. Grotius and Puffendorf argued that
reason was capable of deriving a best set of rules to solve this social coordination problem.
Grotius and Puffendorf believed in God and appealed to God’s existence to underwrite their
systems. However the logic of natural law theory did not depend upon God’s existence. Reason
could be postulated as a self sufficient ground for deriving the rules of natural law.
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Relationship between natural law and customary law
The content of natural law will be influenced by the intrinsic nature of man.
The concept of an intrinsic nature for human kind is itself historically embedded. 16th to 18th
Century natural lawyers believed it was part of man’s intrinsic nature that women bore and
reared children and men worked. Developments in medical science threaten to continuously
overthrow notions of the intrinsic nature of human kind.
Natural law theory with its dependence upon pure reason provided a ground for public
international law. Grotius sought to develop the law of nations through his writings on the law of
the sea, the laws of war, etc.
Natural law theory – English Law
Natural law theory was advanced among English jurists by Blackstone (1723-1780). His famous
commentaries on the Laws of England were published between 1765 and 1979. Blackstone’s
commentaries not merely stated what he understood to be the law of England but attempted to
describe the common law as itself a reflection of natural law.
Jeremy Bentham and Utilitarianism
Bentham (1748-1832) was a philosopher, social theorist, and highly successful advocate of legal
reform. Bentham was a sceptic about the virtue of the common law and advocated codification.
He considered many of the major bodies of English law of the 18th Century to be archaic and
iniquitous, particularly laws in regard to procedure, evidence and the like.
Bentham approached legal issues from the perspective of his utilitarian philosophy.
Utilitarianism advocated: -
17
1.
The aim of human existence was the maximisation of pleasure and the minimisation of
pain.
2.
Pleasure and pain were psychological qualities that would ultimately be capable of being
measured.
3.
There was one unifying moral principle for resolving all moral issues, namely, that one
ought to do whatever would produce the greatest happiness of the greatest number.
4.
It followed that there were no moral rights or duties. Rights or duties were created by
positive legal rules
5.
It further followed that the law should be changed or reformed so as to bring it into
conformity with the utilitarian principle.
Bentham and the Command Theory of Law
Bentham considered the natural law theory to rest upon conceptual confusion. David Hume the
famous Scottish philosopher (1711-1776) in his “Treatise of Human Nature” (1739), had
identified the fallacy of seeking to derive an “ought” or moral imperative from a set of “is” or
factual propositions. Only an argument having in its premises a statement of moral obligation or
duty could give rise to a conclusion about moral duty.


Bentham believed natural law theory was confused in believing that moral imperatives could
in some fashion be derived by a process of reasoning from general statements about the
nature of humankind.


For Bentham a law was simply the command of a sovereign backed by a sanction.

The sovereign was that body within the community which enjoyed regular obedience.

A command was an imperative, commanding or prohibiting some form of conduct.
18

Bentham explained common law rules on the basis that they were tacitly commanded. The
legislature could repeal them if it wished and its tolerance of them was tacit approval or
command of those rules.


A law’s validity had nothing to do with its moral quality. An iniquitous law was still a law if
it was a command of a sovereign backed by a sanction.
Generally the Benthamite scheme has difficulty accommodating any political system in which
the powers of the supreme body are limited either by the powers of other bodies or by a written
constitution.
Bentham’s utilitarianism and his command theory of law were immensely influential in English
jurisprudence throughout the 19th and 20th Centuries. For the Benthamites the only law was the
positive law of the society, those laws that had actually been commanded or tacitly commanded
by the sovereign.
John Austin (1790-1859) sought to further elaborate the Benthamite scheme in “The Province of
Jurisprudence Determined” (1832). There was clearly a difficulty for the Benthamite scheme in
characterising the sovereign in a federal system such as in the United States. Austin identified the
ultimate source of power as the combined members of the electors of all the State Governments.
This was the body that had power to alter the constitution.
Resurgence of Natural Law Thinking
The aftermath of the Second World War brought about a re-evaluation of positivist legal theory.
In Germany, Gustav Radbruch, who had been a leading positivist jurist, denounced positivism
for having disarmed the German legal profession in the face of Nazism, and argued that where
positive laws were morally iniquitous, and conflicted with fundamental principles of natural law,
they could not claim to be valid laws.
The Hart/Fuller debate focused on whether German courts after the War were right to find Nazi
19
laws invalid laws for having breached natural law.
The natural law debate was also important in regard to the justification and grounding of the
powers of the Nuremberg Tribunal. The conduct criminalised under the London Convention
which governed the trial were not rules of public international law prior to the war. The
argument that this was ex post facto justice or victor’s justice was met with the argument that
there were natural law principles binding on all human beings and these were reflected in the
London Convention document.
The significance of natural law theory has again emerged in Germany in the East German
Borderguard cases and in one instance the Bundesgerichtsohf held laws of the old GDR
authorising the shooting people crossing the Berlin Wall to be invalid on the grounds that they
violated natural law principles.
Natural Law and Human Rights Principles in Australian Law
The notion that our constitution implies or depends upon such principles has been raised in some
recent Australian decisions. See in particular: -
Leeth v Commonwealth of Australia (1991) 174 CLR 455, the judgment of Deane and Toohey JJ
at 4568-459;
Kruger v Commonwealth of Australia (1997) 146 ALR 126; and
Kartinyeri v The Commonwealth of Australia (1998) 72 ALJR 722, the judgment of Gummow
and Hayne JJ at 743.
Should judges rely upon natural law to invalidate positive law?
The occasions when this has happened have usually been ones where there has been a sudden
20
political transition and a new political consensus condemning past conduct.
It has been argued by two contemporary American jurists that judges ought not to rely upon
natural law reasons in a stable democratic society where the human rights reasons or natural law
reasons are controversial.


John Rawls’ Concept of Public Reason argues the judges should only appeal to limited legal
reasons to avoid becoming embroiled in intractable moral and political debates.


Cass Sunstein has argued similarly that law involves deploying what he calls “incompletely
theorised arguments”. Judges should not apply their global political and moral views, for in a
multi-cultural and liberal society there will often be grave division over these matters.
LECTURE 5
SCANDINAVIAN REALISM AND HANS KELSEN
Introduction
The Scandinavian realists and Hans Kelsen were among the more significant legal philosophers
in Continental Europe at the end of 19th century and the first half of the 20th century. Their
theories were, like Bentham's, positivistic and anti-natural law.
Science Philosophy and Metaphysics
The late 19th and early 20th century saw a series of extraordinary breakthroughs in the physical
sciences, particularly in physics. The work of people such as Max Planck, Bohr, Einstein and
Heissenberg has made its way into popular culture. The beginning of the 20th century saw
philosophers look to science as a paradigm for knowledge, and to inquire whether principles
might be derived from a study of science which could illuminate non-scientific areas of thought.
Such crucial aspects of the scientific model of knowledge were seen as: -
21
1.
Being value free;
2.
Being based on experiment and the application of mathematics and logic; and
3.
Avoiding the postulation of entities that are not observable or that do not issue in
observable effects.
Some philosophers saw science as standing in contrast to traditional metaphysics which had
sought to uncover some knowledge about the nature and structure of the universe from pure
argument.
In the first decades of the 20th century this anti-metaphysical view of philosophy was influential
amongst a group of philosophers known as “the Vienna Circle” who stressed the importance of
empiricism as the foundation of knowledge.
Scandinavian Realism
What marked all the Scandinavian realists was an attempt to produce an empirical description of
law.
Hagestrom (1868-1939) proposed radical reductionism. He argued that jurists should not appeal
to any non-natural entities when giving descriptions of law. Non-natural entities were entities
that did not form part of the spatiotemporal world.
To say that in Australia we have a valid law X was, Hagestrom would have argued, capable of
reduction to descriptions of human behaviour. These descriptions could include observed
patterns of human behaviour, mental states and predictions about future behaviour.
Karl Olivecrona (1892-1980) described the task of jurisprudence in the opening of his book
22
Law and Fact as “fitting the phenomena of law into the spatiotemporal world”. He likewise
sought to explain law by reference to descriptions of psychological states.
Some criticisms of radical reductionism
Law involves complex intentional mental states including beliefs and thoughts about or
expressed in language.
It is a controversial issue at the forefront of contemporary philosophy of mind as to whether all
of our mental phenomena are capable of explanation in reductionist terms. Is it possible that we
will one day be able to give a complete description to all of our thoughts couched in terms of
descriptions of brain states and neurological phenomena?
A related difficulty is that a reduction of the sort proposed by the Scandinavian realists even if
possible is unilluminating about the true nature of law. Such a description would not be capable
of being used for any conceivable practical purpose.
Alf Ross (1899-1979) attempted a reductionist description, although without going to such an
extreme as Hagestrom.


Alf Ross described laws as directives to legal officials.


A law exists if the postulation of such a directive allows one to predict with accuracy the
behaviour of legal officials.


Ross’ description has two unusual features. Firstly, he treats laws as directives to officials not
to the community as a whole. This is not how we normally view law.


Secondly, Ross treats laws as predictions about how legal officials will behave in the future.
This is quite close to the way in which law was described by some of the American realists.
23
Hans Kelsen (1881-1973)
Kelsen describes his theory of law as a pure theory of the science of norms.
Kelsen wanted to isolate what was unique to legal structures. It was a pure theory because it
would describe law without reducing it to psychology, sociology or the like. This distinguished
Kelsen’s views from the Scandinavian realists.
In describing it as a science of norms Kelsen wanted a description of the structure of law that
was free of evaluative terms.
Kelsen characterised laws as rules or norms. Laws are always part of a system of norms having
relationships of validity which they derive from higher norms. A norm was a valid norm if a
higher norm authorised the making of the lower norm and it had been made in accordance with
the higher authorising law.
The Grundnorm
Kelsen recognised that the chains of validity do not regress indefinitely and one will ultimately
run out of higher authorising valid norms. What confers validity on the system as a whole is not
therefore another positive rule of law but what Kelsen called the grundnorm sometimes
translated as ‘basic norm’.
Kelsen described the grundnorm as the fundamental assumption made by people in society about
what would be treated as law. It is not the constitution which for Kelsen was another positive
norm.
It is apparent that what particular grundnorm applies in a society simply depends upon what
fundamental assumptions are made by the members of that society. The identity of the
grundnorm is ultimately a matter of sociological fact.
Some people have argued that it follows from Kelsen’s theory that if the assumption should
24
change as a result of a revolution or coup d’état, and people apply the new assumption, then laws
made with the new assumption will be valid. Kelsen’s theory appears consistent with maxim
“might is right”.
Whether or not this controversial assumption flows from Kelsen’s theory has been considered in
cases involving radical norm change. See
Madzimambuto v Lardner-Burke [1969] AC 645
The Republic of Fiji v Chandrika Prasad (Court of Appeal of Fiji Islands, 1 March 2001)
and;
Lindell, Why is Australia’s Constitution Binding, Federal Law Review, volume 16, 1986,
p.29.
On a decision in Australian law about what appears to constitute the grundnorm see Trethowan v
Attorney General for New South Wales [1932] AC 526.
LECTURE 6
HART’S CONCEPT OF LAW
Introduction
Herbert Hart was born in 1907 and died in 1992. He was called to the Bar in 1932. In 1952 he
assumed the Chair of Jurisprudence at Oxford University and in 1961 the Concept of Law was
published, a second edition was posthumously published in 1994.


A key influence on Hart was the linguistic analysis movement in philosophy which had
prominent proponents at Oxford and Cambridge in the middle of 20th Century.


At Oxford the linguistic analysis view was propounded by JL Austin (the philosopher not the
jurist).
25

At Cambridge University the analysis of language had been made a central concern of
philosophy by the teachings of Wittgenstein (1889-1953). His influential work ‘Philosophical
Investigations’ was published in 1958.


Words expressed meaning according to Wittgenstein when they were used by competent
speakers in accordance with the rules held by the community as part of a shared form of life.
This common way of life structured by partly explicit conventions shared by speakers gave
rise to a multiplicity of what Wittgenstein called, “language games”.
Hart applied many of these concepts initially to deal with problems of definition in law. Hart
identified what he considered to be legal fallacies where people treated legal terms as names of
things. Hart argued that legal terms were merely ways in which one engaged in the legal
language game. For example, the term “goal” used in soccer does not name a thing but is part of
a convention which we apply under the rules about scoring. Likewise legal concepts apparently
naming things like companies’ trusts, rights, etc are merely reflections of social rules.
The Internal Aspect of Rule Following
Hart criticised Bentham’s emphasis on the external aspect of rule following, namely that law is a
command backed by a sanction.
Hart argued that most people obey and follow legal rules, not through fear of sanction, but
because they adopt the rule as a guide for their own practice and behaviour. In so doing they
often reflect upon the content and purpose of the rule and have regard to these matters when
determining how and when to obey it. Hart described this attitude as the internal point of view
towards rule following.
Types of Rules
Hart also distinguished what he called power conferring rules from rules merely threatening
26
sanctions. Rules about contracts and wills are not about the delivery of a sanction but confer
power upon people to engage in conduct that they could not practice without those rules.
Hart divided the legal system into primary rules, which were concerned with proscribing conduct
– eg, the principal rules of the Crimes Act, and secondary rules, usually characterised as rules
about rules. Thus the rules of evidence and procedure are secondary rules.
The primary and secondary rules of a legal system were valid if they fell under a rule of
recognition. Hart's concept of the rule of recognition was very close to Kelsen’s concept of the
grundnorm.
Hart acknowledged that rules would have a central core of meaning and a penumbra of
uncertainty where their meaning was not clear. Judges would need to make law where the
meaning of rules was not clear. This aspect of Hart’s work was particularly criticised by
Dworkin.
Hart believed that legal rules were clearly distinguishable from moral rules. Although they may
share the same logical and grammatical structure as moral rules the legal ought is not the same as
the moral ought. Hart criticised natural lawyers who sought to assimilate law and morality.
Criticism
Hart’s view of law as simply a rule system was criticised by Dworkin. An analysis of the fine
texture of legal reasoning reveals much of it is not rule based, but as Dworkin suggests, consists
of appeal to principles or doctrines.
Hart treats any appeal by judges to moral principles as a conceptual confusion. It is unclear why
Hart’s attempt to define law narrowly should prohibit judges from appealing to moral reasons.
Positivism is a normative theory, although Hart presented his theory as if it were merely a form
of conceptual analysis (he described his theory in the Concept of Law as descriptive sociology)
Hart nevertheless seemed to draw normative implications from his theory, namely that there
27
should be a proper separation between morals and law.
Hart was a liberal in the sense espoused by JS Mill and in his famous debate with Lord Devlin,
Hart argued against legal enforcement of sexual morality Hart may well have intuitively thought
that his liberal views flowed from his positivism even though there may not have been a
necessary logical connection.
LECTURE 7
LEGAL REASONING ABOUT FACTS AND PROBABILITY THEORY
Introduction
Judges and lawyers spend more time reasoning about factual matters then legal matters and it is
therefore important to see what light contemporary philosophy may shed on this process.
The key legal concept regarding factual inquiry is the notion of judicial proof. This is presently
represented, at least in part, by the definition of relevant evidence (s.55 Evidence Act) and the
definition of standard proof (Evidence Act, s.140 civil standard, s.141 criminal standard, being
the well known rule in civil cases that proof is on the balance of probabilities, and in criminal
cases that the prosecution must prove the case beyond reasonable doubt).
The usual definition of the civil standard and the definition of relevance both use the term
“probability”. The concept of probability has been a key focus of philosophical inquiry for
several centuries.
Historical Background
The mathematical calculus of probabilities was first developed by Blaise Pascal (1623-1662).
Pascal developed the mathematics of chances as an axiomatic system in a correspondence with
28
Fermat. This correspondence consisted of five letters exchanged in the Summer of 1654.
Pascal’s Probability Theory is frequently taught within courses on statistics and the theory has
been most often applied in calculating the likelihood of outcomes in regard to repeated events.
(eg, dice or card games or in predicting the likelihood of certain properties being possessed by
members of a population). These applications are frequently described as the frequentist
interpretation of probability theory.
Many considered puzzling the application of probability to unique events. What does it mean to
say that the probability that the accused is guilty is 90% or the probability that the government
will win the next election is 50%? In 1954 the mathematician LJ Savage in “The Foundations of
Statistics” showed that meaning could be attached to questions about the probability of a unique
event. Savage proposed that an individual choosing between competing theories chose as if
deciding what wagers to make in a lottery in which the lottery outcomes represent the truth or
falsity of the propositions. Savage was able to use rational choice theory to show that a unique
number P(A) may be assigned to a proposition A and that the number so assigned would follow
all the usual rules of conventional probabilities. This is sometimes referred to as the subjective
interpretation of probability, since the probability assigned to the truth of an event represents the
subjective judgment as to the likelihood of the event being true.
Law and Probability Theory
The law appears to incorporate and depend upon the concept of probability in a number of
important respects. Apart from the concepts of proof the law has frequently applied probabilistic
concepts to deal with the notion of proof in situations of risk or uncertainty, see in particular: TNT Management v Brooks (1979) 23 ALR 395 – uncertainty about the cause of an
accident;
Rose v Abbey Orchard Property Investments [1987] Australian Torts Reports 80-121 –
uncertainty about whether a precaution would have prevented an accident; and
29
Sellars v Adelaide Petroleum (1994) 179 CLR 332 – uncertainty about the amount of loss
caused by a misrepresentation.
Is all Legal Factual Reasoning Amenable to Mathematical Analysis?
Mathematical probability as been used by courts in dealing with clear situations of uncertainty or
risk, but do the rules that govern mathematical probabilities underlie all reasoning about factual
matters.
A major debate in the legal literature was triggered by the decision in People v Collins 68
Cal.dd.319, 438p.dd 33 66 cal.Rptr 497 (1969) (Enbanc) in which a Californian court initially
permitted statistical evidence of the likelihood of an accused being the person identified, to be
admitted as evidence of the improbability that the wrong person had been prosecuted. The
decision was overturned on appeal at which it was shown that incorrect use had been made of
statistical evidence.


The case was the subject of an important article by Finklestein and Fairley – “A Bayesian
Approach to Identification Evidence” in 83 Harvard Law Review, 498 (1970).


The authors argued that the proper approach was the use of Bayes’ theorem to determine the
revised probability of the guilt of the accused in the light of fresh evidence.


Their article was followed by the now famous riposte by Lawrence Tribe - “Trial by
Mathematics: Precision and Ritual in the Legal Process”, 84 Harvard Law Review, 1329
(1971).
Bayes Theorem
The theorem was discovered by Thomas Bayes (1702-1761). Bayes’ theorem is more readily
applicable to subjective applications of probability theory such as unique events.
30
Some have argued that all reasoning about facts should, to the extent that we are able, conform to
the principles of the mathematical calculus of probabilities (eg, Robinson and Vignaux,
“Probability – The Logic of the Law”, (1993), 13 Oxford Journal of Legal Studies, 547 at 462).
On this view even though we may not as a matter of practice be able to explicitly calculate
probabilities in accordance with the mathematical calculus we should seek to ensure that our
usual rules and principles of inference are consistent with the mathematical calculus.
The calculus may allow us to identify areas of faulty reasoning (eg, the alleged error of logic in
the High Court judgment in Chamberlain v The Queen (No.2) (1984) 153 CLR 536).
Criticisms of the Bayesian Approach
Some scholars have argued that it is misconceived to model legal reasoning about facts on the
mathematical calculus. The criticisms made by Lawrence Tribe were expanded and enlarged by
L Jonathon Cohen in “The Probable and the Provable” (1977) which argued that legal reasoning
is not based on the application of mathematical probabilism but is based upon a different form of
probability called by Cohen “inductive probability”. Cohen relied upon several arguments and
paradoxes to show why inference drawing in law is different from the mathematical process.
The Gatecrasher Paradox
If proof on the balance of probabilities was equivalent to proving something to an amount greater
than .5 than plaintiffs should be entitled to win cases by adducing merely statistical evidence (eg,
if there are 1,000 people in a stadium where only 499 have paid admission, anyone sued at
random would be liable to judgment in the absence of other evidence). Because we would not
accede to such proof Cohen argued that proof in law cannot simply be mathematical. (See also
the blue and red bus company paradox).
31
The Argument about Conjunction
Where a legal action depends upon several independent elements, all of which must exist to
establish liability, application of the mathematical calculus would require us to multiply the
probabilities of each element. Where the probabilities are less than 1 (as will always be the case)
the effect of multiplying them will be to produce a small overall probability, unless each had a
very high initial probability. The law does not apply this rule but treats each matter as proven
once it is established to be more likely than not.
Cohen also argued that the rule of inference upon inference applied in Chamberlain v The Queen
is in fact the correct principle and provides a protection against error.
The Problem of Beyond Reasonable Doubt


It is not clear what mathematical probability should correspond to a level of belief beyond
reasonable doubt in the guilt of the accused.


Figures such as .9 or .95 (allowing for a 10% or 5% likelihood of error) seem too low. Higher
probabilities would appear to make the prosecution’s task too onerous.


If the presumption of innocence be equated with a probability of zero then on any application
of Bayes’ theorem the probability of the accused’s guilt will always come to zero.
Criticisms by David Hodgson
In his article “The Scales of Justice: Probability and Proof in Legal Fact Finding” (1995) ALJ
741 Hodgson argues that the mechanical application of the concepts of mathematical probability
will produce wrong or unjust results where it is applied to an inadequate evidential basis.
Further, the calculus of probabilities may not be of much assistance in determining what is an
appropriate evidential basis.
32
Conclusion – What Principles Ought to Guide Legal Reasoning?
It is clear from Cohen’s many examples that legal reasoning does not comply with the calculus
of mathematical probabilism. Some might suggest that this demonstrates the irrationality of the
law. It may be that jurists consistently underestimate the probative weight of circumstantial
evidence (as some American scholars have sought to show through empirical testing).
That the law does not follow the mathematical calculus does not end the debate. It is telling that
where we are concerned with risk and uncertainty in many other areas of life the mathematical
calculus is relied upon in determining risk (eg, in risk analysis in major engineering projects,
aircraft safety and the like). Given that we can never be absolutely certain of the guilt of an
accused putting people in gaol is a risk taking activity, the rational method for gauging those
risks may at least presumptively be one that complies with the method we apply in determining
risks in other areas of life.
LECTURE 8
THE LAW OF TORT AND ECONOMIC ANALYSIS
Introduction
This lectures looks at the principles that underpin the modern law of civil wrongs. The lecture
assumes that behind the legal rules and principles applied by lawyers lies some general rationale
for tort law which explains its purpose and function. This rationale may be a moral or political
theory. The two principal contenders in the scholarly literature are the argument that tort law
promotes economic efficiency, and the view that tort law reflects a principle of corrective justice.
Economic Efficiency
Economists use the notion of efficiency in a technical sense. A distribution of resources amongst
33
a population will be most efficient when it would not be possible to increase the satisfied
preferences of any member of the population without decreasing the level of satisfied preference
of others (a so-call Pareto equilibrium, named after the economist Vilfedo Pareto).
This notion of efficiency depends upon the following assumptions:-
1.
That members of the population are rational maximisers of their own self interest;
2.
That there exists free exchange in accordance with the principles of a perfect market
amongst each member of the population; and
3.
There has been an allocation of goods to individuals to hold privately in which they may
trade.
The concept of a perfect market depends upon the following assumptions: -
1.
A private stable allocation of resources;
2.
The absence of force or fraud in regard to all transactions within the market;
3.
That no one person can influence prices;
4.
That each person acts in accordance with their own rational self interest;
5.
That transactions are costless;
It is sometimes also specified that each participant should have full appropriate knowledge
regarding any transactions they enter into. If they lack such knowledge transactions will not be
costless as they will need to expend effort in obtaining knowledge necessary to know whether
the transaction will be more beneficial than not.
The Market Principle and Political Economy
The notion of rational maximisation of the satisfaction of preferences is at least conceptually
34
related to the utilitarian doctrine of the maximisation of the happiness of the greatest number.
The advantage of market theory is that it avoids the problem of judging intersubjective
preferences. Rather than someone making a decision about what is to be considered in the best
interests of all, a market allows each person to determine what exchanges they wish to make.
Fredrick Hayek, the Austrian economist, considered that markets were an efficient means of
distributing resources because they were better at exchanging information about individual
preferences than central government planners (See his principles of Taxis and Cosmos)


It must however be recognised that while a market may be efficient in the Pareto sense it
need not be just.


The Pareto equilibrium will be different in every case for each different original allocation of
resources.


If the original allocation of resources was unjust, the Pareto equilibrium may also be unjust.
Further, Coase demonstrated by way of a careful thought experiment that in a perfect market
given any initial distribution, and the marginal profitability of activities, people will agree to
produce in accordance with the highest marginal profitability whatever be the legal liabilities
imposed upon those various activities (Coase’s theorem).
Market Failure
Some economists argued that even a perfect market ignored certain costs because they were not
costs to the parties to the transactions. They referred to these costs as externalities. (A typical
example is the pollution cost of buying a motor vehicle borne by the community at large rather
than the parties to the transaction). It was argued that legal intervention was required to impose
external costs upon the parties to ensure that society did not otherwise over invest in such
activities. Coase’s theorem casts doubt upon some of these arguments regarding externalities.
35

Coase’s theorem shifted the emphasis from the notion of externality to the problem of
transaction cost.


Efficient outcomes will only be arrived at in a perfect market, which is one in which
transactions are costless, and the parties have complete knowledge.


Legal intervention will therefore be necessary to seek to produce the efficient outcome a
market could have produced if transactions were possible but where they have been
prevented by transaction costs.
The Prisoners Dilemma
Another famous example of market failure is generated wherever the participants in a market
have a conflict between the maximisation of their individual preferences and the collective good.
PRISONERS DILEMMA
You
Confess
Remain Silent
Confess
Remain Silent
Each gets 10 years
1 go free
You get 12 years
1 get 2 years
You go free
Each gets 2 years
For further discussion of the prisoner’s dilemma, see: -
Parfitt; D
Reasons and Persons, Oxford Up, Oxford, 1984, Chapter 2
Nozick;
R Rationality, Princeton UP, Princeton, 1993, p.50-59.
Moser;
PK Rationality in Action, Cambridge UP, Cambridge, 1990, p.280-282
36
Tort Law as Reflecting a Utilitarian or Economic Principle
In United States v Carol Towing 150 Fdd 169 at 173 Learned Hand J based his judgment on the
following formula:If
P = Probability of injury
L = Injury – cost of injury
B = Burden of injury (being the cost of precautions)
Then where B > than P x L no liability will be imposed. Where B < rather than P x L liability
will be imposed.
On cost benefit analysis of safety precautions see also Flemings “Law of Tort”, 9th Edition,
p.131-132.
Posner’s Theory
Richard Posner has sought to analyse all bodies of law from the point of view of economic
efficiency, arguing that this is the underlying principle of all legal doctrine.


In explaining tort law, Posner argues that compensatory damages are paid to a victim to give
the victim an incentive to sue. This is essential to the maintenance of the tort system as an
effective credible deterrent to negligence.


The economic function of compensation in tort, according to Posner, is the deterrence of
inefficient accidents.


Posner argues that the legal principles aim to achieve an outcome comparable to that which
would represent the most economically efficient outcome if the matter was capable of being
handled by a market.


The reason the law intervenes is because the conduct with which law is concerned is usually
one in which a market is inappropriate because of the cost of the transactions or some other
37
cause of market failure.
Criticisms of Posner’s Theory
One peculiarity of Posner’s theory is that it argues that law generally, and tort law in particular,
seeks through its principles of negligence and the like, to emulate market efficiency, and yet, few
judgments refer to economic efficiency as a reason or explanation of the legal principles applied.
Posner suggests that legal principles that promote economic efficiency will be more likely to be
promoted and applied than ones that do not, rather like survival of the fittest.
A further difficulty with Posner’s theory is that it is hard to know whether the outcomes
produced by law truly reflect how a society would organise itself if market principles could be
applied.
Corrective Justice


In the last 20 years a number of jurists have suggested that the principles underpinning tort
law are not the promotion of economic efficiency but rather those of corrective justice. The
concept can be traced to Aristotle’s Nicomachean ethics.


As explained by Aristotle, the concept of corrective justice involved depriving a wrongdoer
of the gain and providing compensation to the sufferer.


The aim is to ensure that each party is returned to the position that he or she was in before the
wrong was committed.


The notion of corrective justice is related to and dependent upon the concept of distributive
justice.


Distributive justice concerns those principles that govern the overall distribution of goods
38
(using that term in the widest possible sense).


If we assume that the pre-accident distribution was just, then the effect of a wrong is to
disturb that just distribution.


Corrective justice demands that the original just distribution be restored.
Justice and Proportionality
There are many obstacles to explaining modern tort law as an application of corrective justice. It
troubles many commentators that a wrongdoer could be liable for damages out of all proportion
to the level of wrongdoing committed.


Judith Thompson has argued that we should have an “at- fault” pool to compensate victims.
Everyone contributes to the pool a sum for any wrongdoing proportionate to their level of
wrongdoing, and those injured are compensated from the pool in an amount necessary to put
them back in their pre-accident position to the extent money can. This seeks to neutralise the
effect of luck.


Joel Feinberg has argued that we can explain the tort principle on the “fault forfeits first”
principle. Once someone has been injured the loss must be borne. It is better that it be borne
by the party at fault then by the innocent party.


Jeremy Waldron has argued that the modern law of tort cannot satisfy principles of corrective
justice as the liabilities of the defendant cannot be shown to correlate with culpability or
moral dessert.
Ironically, despite the difficulty of jurists in coming up with a consistent theory of corrective
justice that explains modern tort law, judgments in tort are usually expressed in the language of
blame and wrongdoing rather then economic efficiency.
Further, modern tort law is to a substantial degree underpinned by insurance and the consequent
39
spreading of risks, although this is rarely adverted to in judgments. Should this matter to judicial
decision makers?
Conclusion
It may well be that modern tort law is built upon a mix of inconsistent principles and
justifications. The difficulty presently experienced by superior appellate courts in defining the
circumstances in which recovery of pure economic loss will be permitted may be a reflection of
this deeper conceptual confusion. See Perre v Apand (1999) 198 CLR 180.
LECTURE 9
THE CONCEPT OF PROPERTY
Introduction
Lawyers recognise that the notion of property refers not to the things which are usually objects of
property, land, chattels and the like, but to the rights the law confers in regard to those things.
Property is created by law granting rights against the world, or rights in rem in regard to
particular things. To say that I own my car or home is a shorthand way of claiming a bundle of
rights in regard to the car or land in question. The bundle of rights, giving one property in
something, usually include: 

The right to possession


The right to use


The right to manage


The right to the income from the thing
40

The right to the capital or to increases in its value


Immunity from expropriation


The power of transmissibility


The absence of a term
In addition to the above rights, one usually has certain obligations flowing from ownership, in
particular: 
The duty to forebear using the thing harmfully

Liability to have the thing taken in execution by creditors
We also recognise that the type of rights conferred by law which we regard as property rights
may attach not merely to land and chattels but to intangibles such as intellectual property rights.
This field is expanding to include such things as genetic patents and computer programs.
Many jurists have proposed a general theory explaining and supporting the grant of property
rights. Such a theory would almost certainly be a moral theory.
Utilitarian arguments for property


Some argue that the greatest happiness of the greatest number or the maximisation of
satisfied preferences will be achieved by organising society in such fashion that individuals
have rights to private allocations of property.

This argument does not suggest that we have any moral right to either property in general, or
to particular items of property, simply, that society will go better if we maintain the
institution of private property.

Appeal is often made to a psychological argument to the effect that people work harder or
41
more productively if they have a private stake in the outcome, and this is best done by the
institution of private property.
Private property as a liberty protecting institution
Some jurists (eg Frederick Hayek and the contemporary philosopher Robert Nozick) argue that if
we seek to abolish or ban private property or organise society without it there will of necessity be
far more interference by government in peoples’ lives and the way they live. In this view private
property is not itself virtuous but a condition of living in a fashion which protects individual
liberty and privacy.
The first acquisition argument
Occasionally we acknowledge being the first to claim something as a reason for entitlement (eg,
getting to a restaurant or cinema early and putting a coat on a chair). While this may be a
convenient institution in simple situations it is wholly unclear why being first to claim something
should give one a moral entitlement against others. The argument is especially weak in regard to
property which endures. If you claimed Blackacre before me merely because you were born
before me and got there first, your claim appears to have little justification. Nevertheless first
acquisition has some significance in international law regarding territorial disputes.
Locke’s labour theory of value
The most influential attempt at providing a moral argument for a right to property was that of
John Locke, the great English philosopher (1632-1704). His views on natural law and
government were outlined in his two treatises’ on government written in 1679 and 1680 but not
published until 1690, and his Essay Concerning Human Understanding, also published in 1690.
Locke argued for a right to property in the following fashion: -
42
Step 1:
Everyone owns his own person
Step 2:
It follows from Step 1 that each person owns the labour of his body and mind.
Step 3:
When you mix your labour with something you have acquired that was existing in
a natural state, you have joined something you owned with something you did not
own.
Step 4:
If Step 3 is satisfied then a person owns that thing that they have mixed with their
own labour.
Step 5:
A proviso to the argument is that when one has appropriated something that
existed in a natural state, one must leave enough in common for others.
One difficulty with the argument is that it is unclear why, even if I own my labour, I should own
whatever I mix it with. As Robert Nozick has argued, it is just as consistent that I should lose
what I own when I mix it with something I do not own.
The second version of Locke’s argument overcomes some of the difficulties just referred to. The
argument proceeds after Step 3 in the following fashion: -
New Step 4:
When I add my labour to something I did no previously own, I add to the value of
that material previously existing in a natural state.
New Step 5:
It would be unjust for others to gain the value which I have created by adding my
labour to what was previously existing in a natural state.
New Step 6:
I am entitled to the product with which I have mixed my labour since it would be
unjust for anyone else to appropriate that added value.
Problems in regard to Locke’s argument
The second argument depends upon it being unjust that anyone but me gain any added value
43
that my labour has created. However, if I was adequately compensated, why would it then be
unjust to take the property from me if I was not otherwise properly utilising it?

The idea of leaving enough in common for others limits the scope of the argument, especially
in our overcrowded world.
Arguments about self ownership of one’s body and mind

This part of Locke’s argument seems to be the most persuasive. Most of us consider that we
have some moral right of self-control and dominion over ourselves. Part of the moral wrong
of slavery is that it infringes this principle.

Locke’s argument led to a long line of theories that identified value in anything produced or
manufactured, with the quantity of effort or labour that had gone into the product.

Marx’s labour theory of value is based upon this, and his concept of exploitation, and his
belief that there would be a revolution to overthrow capitalism, derived in part, ironically,
from this labour theory of value.

On the other hand, isn’t this notion of mixing labour or value with inanimate matter
metaphysically suspect?
Locke and ownership of land
Locke believed that his argument could be applied to ownership of land. Whoever went out and
cleared the forest and made the land capable of being cultivated thereby acquired ownership of it.
It is unclear in regard to land why one would acquire ownership of the land, merely by clearing it
for agriculture, as opposed to ownership of the crop.
Locke believed that there was still unallocated land in his time. This was because Locke believed
44
that the native peoples of North America had not acquired ownership of their land. Locke
believed that they were hunter/gatherers who merely lived from the wild fruits from the land but
did not mix their labour with the land. It followed that they therefore acquired no property in the
land and were not dispossessed by European settlers.
Locke also believed that the use of land by cultivators was a benefit to native peoples.
Emeric de Vattel expanded Locke’s argument. It was wrong, he said, when many people were
living on parts of the earth where resources were scare through over population, that other people
should enjoy large tracts of land which were under utilised. They were taking up more of the
earth’s surface then needed.
The influence of arguments of this sort as justifications for the doctrine of terra nullius is clear.
(See Mabo No.2 (1992) 175 CLR 1 at 33 per Brennan J).
Justifying inheritance
If one looks to the labour theory of value as the underpinning for our concept of property it is
unclear why we should permit free testation. My dominion over myself and the moral claims that
flow from it would, one would think, end on my death. How can I have an interest or right to
dictate what will happen to my property after I have ceased to exist.

Locke argued that as people are subject to a principle of propagation, in bringing people into
the world they acquire an obligation to preserve them, and they are not therefore proprietors
of their property solely for their use, but in part for the assistance and care of children.

Locke argued that therefore children had rights in regard to parent’s property and upon the
death of the parent the right of the child became absolute.

Locke’s argument would justify limited rights for children or immediate family members to
make a claim but would certainly not uphold the right of people to dispose of property at
45
their whim to friends or charities.

There may be good utilitarian or rational choice arguments for justifying testation.
Righting historical wrongs
The end of the 20th Century has seen numerous demands for restitution for historical wrongs.
These have been made by native peoples (Australia’s aborigines, native North Americans, etc)
and those whose property was taken by communist or fascist regimes. Many of these claims
depend upon the notion of a moral right to property which has been violated.
There are complex counterfactual problems in justifying a moral right to rectify old historical
wrongs since the current generation of claimants may not have even existed if the wrongs had
not been committed, since even the wrongs themselves almost inevitably constituted a necessary
part of the historical chain of cause and effect.
Solving the problem of historical wrongs by way of restitution also raises important issues in
distributive justice. Should we simply distribute property now in order to maximise satisfied
preferences or other utilitarian goals or perhaps satisfy the principle of equality, or should we be
concerned with tracing and correcting past injustices?
New issues for the concept of property
Locke’s concept of property was built on the argument that we own ourselves. The issue of that
ownership and what it involves has now been made more significant by developments in medical
technology.

If I own myself, do I, and should I, have a moral right to dispose of the tissues of my body as
I see fit. Do I have a moral right to sell one of my kidneys to improve my material position in
life?
46
Should I own my genotype? Should I be able to sell it? (The United States Supreme Court
appears to deny I have such property rights).
LECTURE 10
THEORIES OF POLITICAL OBLIGATION
Introduction
This lecture explores arguments for and against the view that we have a moral obligation to obey
the law. It is important to distinguish between an obligation to obey a particular law, founded
upon the reasons for making that particular conduct obligatory, and the different notion, that we
have a general obligation to obey all laws, including those laws that we believe are morally
unjustified. Most no doubt believe we should obey the law prohibiting murder. This however
could easily be explicable on the basis that most of us believe killing is wrong. By contrast, some
people believe redistributive taxation is wrong. They may however also believe that despite its
wrongness they have an obligation to obey this law.
This lecture will not be a comprehensive survey of the many political theories that have been
proposed but will look at some key steps in the evolution of political thought.
The argument from Plato’s Crito
In 399BC Socrates was tried in Athens on a charge of being a menace to society and was
sentenced in death. In Plato’s famous dialogue, ‘Crito’, a friend of Socrates, offered to arrange
escape for him. Socrates refused.
Socrates rejected the invitation to flee because it would be a breach of Athenian law. Socrates
argued that he had a moral duty to obey the law even if he believed the law is wrong. Socrates
put forward several arguments for this position.
47
One has agreed to obey the laws and it would be a breach of that promise to be disobedient.
Such agreement had been given by Socrates continuing to live in Athens thereby tacitly
acknowledging Athenian legal authority.

In a further argument, Socrates said that he had received the benefits of being an Athenian
citizen throughout his life and as a matter of justice was obliged to take the burdens that
come with those benefits. One of the burdens is the duty of obeying the law.

Socrates also argued that the relationship between State and citizen is not one of equality but
a relationship akin to that of parent and child which carries a duty of obedience.

A further interpretation of Socrates argument is not that one must obey the law, but that one
must accept the penalty if one disobeys the law.

Socrates also argued that he had an obligation to obey because he had been afforded an
opportunity to persuade the State to change the law. He had been allowed a trial and having
taken that opportunity could not now disobey the law.
Crito contains one of the first instances of the so-called “social contract” argument. However,
one may question why the moral obligation to keep promises should override other moral
obligations such as doing good by breaking bad laws.
The argument from Hobbes’ Leviathan
Hobbes (1588-1679) commenced to publish Leviathan in 1651. The English Civil War (16401653) had produced immense misery and Hobbes’ emphasis upon the importance of a strong
State was no doubt partly a reflection of that experience.
One might reconstruct Hobbes’ argument along the following lines (in this regard I follow the
views of Jonathon Wolff in an Introduction to Political Philosophy OUP 1996)
People are all approximately equal in strength. Equipped with an appropriate weapon the
48
weakest person can defeat the strongest.

Human motivations are derived from our biological nature.

The chief things required by people are scarce (namely, food, shelter and the essentials of
life). Because of scarcity there will be competition.

Because of the competition between people for scarce resources in the absence of a state it
will not be possible to act in accordance with moral sentiment. Each will be forced into a war
against all others. This is because:-
(i) We desire to obtain the power and means to satisfy our future desires (eg, I wish to
have the means to ensure that I can grow a crop to feed myself next year).
(ii) If we fear others may attack us to satisfy their future desires, if will be in our rational
self interest to attack first, for it would be irrational simply to wait until we are
attacked when we may be in a situation of weakness.
(iii) In the state of nature without a ruler there will be no injustice from broken rules for
without a lawgiver there could not be rights or obligations.

In the absence of a State there will be perpetual civil war and in the words of Hobbes “the
life of man, solitary, poor, nasty, brutish and short”.

To escape from this state of constant civil war it is necessary that there be a body capable of
enforcing rules so that it will no longer be rational for people to act pre-emptively and engage
in war.

A State will not be an effective kerb upon the tendency of people to strike pre-emptively
unless its authority be paramount. Therefore to achieve a peaceful and stable society the
power of the State must be absolute.
49
Locke’s argument
Locke also approached the matter by asking how the State might have political authority over us
but reached a different conclusion from Hobbes. Locke argued: 
That in the state of nature there are personal rights. In particular, to life, health, liberty and
possessions. These exist prior to any political organisation.

Locke further believed that in the state of nature the moral law would be generally followed.

Locke argued that some would break the moral law and the law would be futile without
enforcement, therefore everyone had a natural right to enforce the law.

If the law was enforced by individuals exercising their right of self enforcement numerous
difficulties would arise, there would be arguments, acts of excessive enforcement and only a
civil authority with the power to resolve these disputes could succeed in bringing peace.

Locke argued however that it could never be intended to confer legislative power upon this
civil authority so as to permit it to violate our pre-existing rights. (“Whenever the legislators
endeavour to take away, and destroy the property of the people, or to reduce them to slavery
under arbitrary power, they put themselves into a state of war with the people, who are
thereupon absolved from any further obedience and are left to the common refuge”). See the
Second Treatise on Civil Government.
Is democracy a good justification for an obligation to obey the law
Many people in our society believe that because we have been able to vote for our government
we are therefore bound to obey. However, it takes some effort to demonstrate why an entitlement
to vote leads to a moral obligation to obey any law decided by the legislature for which one
voted. Robert Paul Wolff in his influential book “In Defence of Anarchy” shows that democracy
does not lead to a general obligation to obey the law. Wolff identifies Rousseau as the first
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political philosopher to recognise that majoritiarin democracy was not a self-proving moral
principle. Rousseau believed that he had found a justification for majoritarian democracy with
his concept of the general will. Wolff reconstructs Rousseau’s argument in the following steps.
(i) I am free and only properly obligated when I act in accordance with the general will of
the people.
(ii) I would not consider it an infringement of my liberty to be compelled to do something
which I would have wanted to do had I not chosen an alternative course by mistake or
error.
(iii) The general will reflects the choice that anyone would make who has properly directed
their mind to the question of what ought to be done for the regulation of society free of
error or mistake.
(iv) The majority of the people assembled to vote and directing their mind to what ought to be
done for the governance of society will correctly choose. Their view reflects the general
will.
(v) If I have opposed the majority I have in effect mistaken what I should have intended or
willed and what I would have intended or willed but for my mistake.
(vi) The majority is entitled to enforce their position because it reflects in effect the position I
would have wanted if I had myself correctly apprehended the general will. In Rousseau’s
words “if anyone refuses to obey the general will he will be compelled to do so by the
whole body; which means nothing else then that he will be forced to be free”.
Wolff considers Rousseau plainly wrong in assuming that the majority view manifests the
general will. In fact some 20 years after Rousseau's argument was set out in “The Social
Contract” the Marquis de Condorcet discovered his famous jury theorem which applies
probability theory to demonstrate that where a decision is made by a number of decision makers,
each acting independently and with an average probability of getting the correct answers greater
than .5, the likelihood that the majority decision is correct is substantially higher than the
51
likelihood that anyone individual’s decision is correct and as the size of the jury tends to infinity
the likelihood that the majority are correct tends to certitude. Of course not all the pre-conditions
for the application of de Condorcet’s jury theorem apply in the political deliberations of most
modern societies.
CONDORCET’S JURY THEOREM
Probability that majority are correct: =
vh – k
______
vh – k + eh – k
WHERE: -
v = the individual jurors probability of correctness in judgment
h = number of votes in the majority
k = number of votes in the minority
e = probability of incorrect judgment of jurors i.e 1 – V
The theorem assumes:(i) The average V of the jurors is above .5
(ii) The jurors are choosing between only two possible outcomes
(iii) The jurors each decide independently.
Wolff also argued that majoritarianism does not produce a just distribution of political power
merely because its based upon a system of according each person a vote of equal value. In any
society with an entrenched majority of say 51%, that majority will have a total monopoly of
political power. Wolff suggests that the only just way of distributing political power would be if
voters put chips into a lottery and the government were chosen randomly, the proportion of chips
reflecting the proportion of differing preferences within the community would result in political
power being distributed over a substantial period of time roughly in proportion to the following
of the various political parties. Such a system would however, while being just in one sense, be
wholly inefficient, possibly even disastrous in other senses.
De Condorcet also discovered the famous electoral paradox in which, depending upon the order
52
of preferences, it may be that there is no democratic answer to some distributions of preference,
in the sense that no matter which candidate be chosen, a majority would have preferred some
other candidate. Lewis Carroll independently discovered the electoral paradox and the well
known economist and philosopher Kenneth Arrow generalised it for all electoral systems. It has
thus became known as Arrow’s theorem.
VOTING PARADOX
Individual 1
Individual 2
Individual 3
A
B
C
B
C
A
C
A
B
A majority prefer A over B (1 & 3)
Another majority prefer B over C (1 & 2)
Another majority prefer C over A (2 & 3)
Robert Dahl and the principle of affected interests
A further difficulty for democratic theory is to determine what it is a majority of that matters.
You would not consider that the people of Indonesia or New Zealand ought to be entitled to vote
for the legislators who are to determine how Australians will be taxed. It is Australians whose
interests are affected by the Australian Taxation system and therefore they are the natural body
of people to exercise a vote on that matter. The answers however are not always clear. Is the
town plan for the CBD of Sydney a matter that should be determined by the political community
of the residents of Sydney’s CBD, or all of those who live or work in the CBD, or because of it
being the capital of New South Wales, the whole of the state, or because of the national
significance of the city the whole of Australia?
We clearly have a multiplicity of interests some of which relate to our local precinct, some to the
53
local council zone in which we live, some to the city, some to the State, some to the nation, and
some to the human race. Robert Dahl described these as sitting inside each other like Chinese
boxes, and that we need an affected interest to justify a claim to vote.
One can clearly see many of the constitutional difficulties in a federation like Australia involving
inter se questions as effectively deriving from controversy about what represents the appropriate
community of affected interest.
Rawls (1921 - )
John Rawls has perhaps been the most influential political philosopher of the last 50 years. His
key work is “A theory of justice” (1971).

Rawls’ theory is a theory of distributive justice but also includes a theory of the distribution
of political power.

Rawls’ theory has sometimes been described as a concept of justice as fairness.

Rawls defends voting as a way of distributing political power fairly.

Rawls’ argument for his principle of distributive justice involves reliance upon a hypothetical
social contract. An agreement people would make if acting rationally and not aware of their
personal advantages and disadvantages

Rawls’ theory is one which shows why we are entitled to demand obedience in order to
prevent benefits being given to what have been sometimes referred to as “free riders”
Communitarian political philosophies
Much western political theory has taken as its starting point the principle that individuals are free
and autonomous and that the problem is to explain how they can be obligated to obey the State or
54
to obey others. Artistotle in his “Politics” had in the 4th Century BC challenged this approach.
His famous phrase that “man is a political animal” recognised the inevitability of our living in
communities. If we must live communally we must harmonise our conduct with others.
Some contemporary moral philosophers (eg, Michael Sandel and Charles Taylor) have attacked
the over emphasis on individual rights in western liberal political philosophy and advocated a
renewed emphasis upon communal obligations.
The challenge in political philosophy appears to lie in finding a balance. Over emphasis upon
communal obligations leads rapidly to intolerance of difference, the concentration camp and
genocide. Viewing the matter from the traditional liberal perspective however can, unless one is
careful, undercut the right of the State to claim obedience on anything other than the protection
of basic rights.
LECTURE 11
CRIME AND PUNISHMENT
Introduction
Philosophy has provided a number of important theories about the nature of our responsibility for
criminal conduct and the justification of punishment. These two issues are related. The nature
and amount of punishment we consider appropriate for a crime is closely related to the reasons
we believe people should be held responsible.
Why do we punish people?
Anglo-American jurisprudence usually distinguishes between the mens rea or criminal intent of
an offender, and the actus reus, the criminal act. The necessity for each element to be present in
regard to most crimes reflects the underlying doctrine of the criminal law that people are not
punished merely for wicked intentions if those intentions have not been acted upon, nor for
causing harm where it occurred through accident or in the absence of a blameworthy mental
55
state. The usual mens rea for a criminal offence is that the criminal has intended the
consequences which occurred, or acted with reckless indifference to whether such consequences
were caused.
The problem of moral luck and free will
The doctrine of mens rea in the criminal law reflects a belief about the nature of human conduct.
Most of us believe that we choose to engage in our intentional conduct, that we could have
chosen otherwise, and that this process of choice involves some form of mental act. Only being
responsible for those actions that we have intentionally chosen ensures that we have some
control over life. Imagine being criminal liable for anything that you caused, even accidentally.
Further, whether the punishment is based upon deterrence or upon retribution, it seems to make
more sense to punish people where they have chosen to do wrong rather than in instances where
they have caused harm but could not have avoided it.

Many have argued that our system of criminal law thereby assumes that we have a free will.
Although some philosophers have accepted that we are able to alter our future through
completely unconstrained mental choices, science appears to present us with a picture of the
universe determined by physical law and without room for the existence of a notion of free
will.

In suggesting that the punishment should be proportionate to the crime we usually intend that
what makes crimes of greater or lesser significance is the extent of the offender’s
wickedness, governed by the extent of the intended harm.

The principles just referred to create a paradox for the criminal law. It appears hard to justify
different punishments because of different consequences where the different consequences
were purely the result of luck. (eg, The NSW Crimes Act provides for a penalty of up to 10
years for causing death or serious injury driving under the influence of liquor or a drug or at
speed or in a manner dangerous. By contrast, traffic legislation provides for a summary
56
offence of driving in a manner dangerous with a much lesser penalty. However whether one
causes death or serious injury while driving in a manner dangerous will usually have little to
do with the intention of the offender).
Nagel and Williams in essays both entitled “Moral Luck” have argued that we can never
eliminate entirely an element of luck in the way in which we apportion moral or criminal
responsibility.
The justifications of punishment
It has frequently been asserted that punishment is justified by one or a combination of the
following reasons: 
Rehabilitation
Deterrence
Retribution
Rehabilitation
The rehabilitative model represents criminal conduct as a symptom of a psychological condition
from which the offender should be cured. If it be possible to rehabilitate people while they are
being punished for other reasons there seems good ground for attempting rehabilitation.
Difficulties may arise where the demands of effective rehabilitation conflict with effective
punishment justified on deterrence or retributive grounds.
57
Deterrence
Deterrence justifications treat punishment as a means to an end. Contemporary deterrence
theories are often traced back to Bentham’s utilitarian moral philosophy. Bentham also wrote on
criminological and penological theory.

The utilitarian calculus treats any form of human suffering as a cost requiring justification
through the production of a greater and countervailing measure of human happiness.

From this perspective punishment of offenders will only be justified if the punishment will
have the effect of deterring the offender and other potential offenders from future criminal
acts that would, if committed have caused suffering in excess of the offender’s suffering
from being punished.
Leaving aside the practical difficulties of measuring the gains and losses, deterrence theories
raise a number of other issues.

Firstly, it treats the punishment of the offender not as something the offender deserves for his
wrong but as a means to the achievement of some other desirable social end. Some argue that
it devalues individual autonomy in treating people as means rather than ends.

It does not appear necessary from the viewpoint of the utilitarian calculus that a person
actually be guilty. If sufficiently many people believe the person punished was guilty and are
deterred by the example of that punishment, the punishment may be an effective deterrent
even if the prisoner be innocent.
Many utilitarians argue that if we did not strive to avoid punishing the innocent there would
be further suffering caused through the anxiety of the general population, fearful that they
might be the next victim of an undeserved episode of punishment. This might be a practical
reason why we would not usually punish innocent people, but it appears to be a deficiency in
the theory that it says that there is nothing in principal wrong with punishing innocent people.

It also follows from the deterrence theory that the punishment need not be proportionate to
58
the crime.
The deterrence theory treats the suffering of the offender in being punished, and the suffering
of the victim, as of equal moral significance.

There are certain offences which appear undeterrable, deterrence theory would therefore
suggest we do not punish at all.
Braithwaite and Pettit argue for a modified theory of deterrence. They suggest that the error of
early deterrence theories was to advocate the maximisation of human happiness or welfare. They
suggest that punishment seeks to maximise the value of personal dominion. This value reflects
our autonomy and ability to control our own lives. If we punish in a fashion which will seek to
increase the importance of this value in society then we will not punish innocent people and our
punishment may also reflect in some fashion the proportionality principle but we will also have
the flexibility to adjust punishments to reflect rehabilitative and deterrence aims. Why however,
should we maximise only this value?
Retributive theories of punishment
Retributive theories have had a renewed popularity in criminological theory in the last thirty odd
years. Herbert Morris’ article “Persons and Punishment” (see course materials) was one of the
first examples of the new retributivism.

Morris’ argument is firmly based on the principle of justice that a criminal deserves
punishment, because, having enjoyed the benefits of living in society, criminal conduct
reflects an attempt to evade the burden of obedience.

Punishing the offender deprives him or her of the unmerited advantage which he or she
would otherwise gain and hence restores a just equilibrium with all other members of society
in bearing the benefits and burdens of social life.
59
It is sometime objected to arguments akin to that of Morris’ that it assumes the offender
gained some benefit from their criminal conduct. This may seem improbable if it was a
spontaneous outburst of uncontrolled violence.

Sadurski in “Giving Desert Its Due” points out that it is not the benefit gained by the criminal
in breaking the law which merits punishment, but rather, the criminal’s rejection or refusal to
accept the restraints imposed by law on the conduct of us all, which brings into play the
principle of punishment.

Finnis also puts forward a retributive theory arguing that in breaking the law the criminal has
arrogated to him or herself a freedom of choice or liberty in action to which he or she is not
entitled. Punishment restores the balance or equilibrium by depriving the offender of that
liberty.
The advantage of retributive arguments
In suggesting that the justification of punishment lies in restoring some sort of equilibrium
between the obligations or burdens borne by the law abiding on the one hand, and the offender
on the other, retributivism can explain why we punish only the guilty and never the innocent,
since only the guilty have gained the unmerited advantage which calls for punishment. Likewise,
retributivism can explain the principle of proportionality. The graver the offence the greater the
burden of obligation or control the offender has repudiated and the greater the punishment called
for.
It is also said in support of the retributive justification of punishment that it treats people as ends
rather than means. It explains why offenders deserve their punishment and why we should
punish them regardless of the social benefit that might otherwise flow.
60
Criticisms of the retributive viewpoint

The concept of proportionality while explicable in theory is hard to give effect to in practice.
How do I decide how much more punishment an armed robber deserves then someone who
commits a common assault?

The proportions awarded by the criminal law appear to be determined more by historical and
cultural factors then by some scale of objective moral dessert.

Strong retributivists argue that there should be no clemency or discounts. Indeed, it will be
unjust on this view to punish an offender any less than the amount that he or she deserves.

The retributive viewpoint may be difficult to reconcile with rehabilitative aims.
Mixed theories
HLA Hart in his work “Punishment and Responsibility” argued that we appeal to utilitarian and
deterrence type arguments in justifying the existence of a law or general rule. Thus, the law
against dangerous driving exists because of the general social good produced by having a norm
discouraging dangerous driving. On the other hand, Hart considered that in punishing individual
offenders one had to give recognition to a principle of justice which required that they not be
punished beyond the amount that would be proportionate to the offence.

Most sentencing judges argue that they take into account deterrence, retributive and
rehabilitative goals in arriving at the correct sentence.

Some might argue that some values may be pre-eminent over others.

Are we permitted to punish people more than they deserve for deterrence reasons?

Perhaps however we should discount punishment to reward informers.
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The correctness of appealing to multiple value justifications of punishment depends upon
one’s general views about moral justification, and whether one accepts that there are a
plurality of moral values which need reconciliation, or whether there is a pre-eminent moral
value which will usually dictate the outcome in a case.

Usual sentencing practices reflect the plural approach.
Teleological theories of punishment
Some philosophers (eg, Robert Nozick and Joel Feinberg) have argued that punishment is
justified as an expression of society’s values, and aims to bring the offender to the point of
recognising those values. On some of these theories it is important that the offender achieve a
state of repentance. It does seem important in the process of punishment that people know and
acknowledge why they are being punished.
On the other hand, teleological justifications appear insufficient as complete justifications. How
can I justify continuing to punish someone who has fully repented and fully accepted society’s
values?
Punishment, time and personal identity
A further major issue in the justification of punishment is the impact upon an offender’s moral or
legal responsibilities of the passage of time. Are we right to treat a person as a single indivisible
entity that persists throughout time? Does an offender deserve to be punished just the same
amount if caught 20 years after the offence, as when punished straight after the offence?
Derrick Parfit argued for a reductive theory of personal identity. In this theory we are in a sense
not a single indivisible entity throughout our lives but a series of phases, albeit closely connected
ones. The term ‘person’ describes that bundle of phases, usually associated with a specific body
(but not perhaps in the future if we master brain transplants – or perhaps better described as body
62
transplants).
Parfit argues that in a real sense we are not the same person now as we were 20 or 30 years ago.
We have different memories, different values, different thoughts. This may affect the extent to
which we deserve to be punished for something we did long ago in our past.
Does memory loss affect our liability for punishment?
What if after having committed a crime I suffer a brain accident and lose the whole of my
autobiographical memory regarding my life at the time of the offence. Do I still deserve to be
punished even though I have no internal recollection or knowledge of having committed the
crime, or how or why I did it?
LECTURE 12
THE RADICAL CRITIQUE
Introduction
Many modern commentators have described a new culture war between post structuralist and/or
post modernist social theorists on the one hand, and mainstream liberal social theorists on the
other. Such commentators often identify mainstream liberal thought as a continuation of the
rationalist and enlightenment projects of the 18th Century that sought to use reason (and in some
instances science or various branches of applied mathematics) to acquire knowledge and explain
how society should be organised.
In simple terms we might identify some of the following characteristics of the mainstream liberal
project as: 
Concern with objective knowledge claims
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Looking to an accumulation of knowledge about issues and problems that have persisted
through time.

In legal philosophy the mainstream project considers rationality, morality, and human rights,
to provide foundations for legal doctrine.
The postmodernist/post structuralist movement in contemporary social theory is often identified
with some or all of the following characteristics: 
A denial of objective knowledge claims and espousal of epistemological relativism

A denial of the foundational nature of rationality.
The movement is often associated with attempts to show that rational standards may themselves
be culturally based, hence the advocacy of: 
The indeterminacy thesis in regard to legal and moral reasoning and the interpretation of
texts

An emphasis on the ideological function of many of the dominant concepts within
philosophy, politics and law, and in some of its more controversial versions, also in science.
The critical legal studies movement (CLS)
CLS first came to prominence in the United States in the 70’s and early 80’s. The ideas and
theories of CLS can be viewed as a confluence of several important intellectual streams, but the
most significant were, scepticism about legal doctrine and legal formalism first made famous by
the American realists, Marxism, and structuralist thought.
Some of the early proponents of the movement were Duncan Kennedy, Roberto Unger and
Morton Howitz.
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The concept of ideology
Central to understanding the CLS is grasping the notion of ideology as it has been developed by
Marxist and structuralist scholars.
Marx’s theory of historical materialism viewed the economic mode of production as the ultimate
determinant of social forms. Thus, capitalism for example, the most recent mode of production,
was a means of production governed by commodity exchange and dependent upon markets.

The social relationships between workers and capitalists, and consumers and producers are
themselves produced by that market.

Marx further argued that the theoretical life of the society (meant in the general sense to
include not just philosophy and literature but law, politics, religion and the like) was secreted
by the economic mode of production. Thus, the form taken by law and politics, and indeed
the philosophy of law and politics, was governed by the economic relations within that
society.

The political theories of modern liberalism that have emerged since the 18th Century, all
depend upon concepts of legal equality, freedom of contract, possession of individual rights
and liberties, and these Marx argued all reflect the way in which human beings relate to each
other in the market where everyone has at least formal equality (unlike pre-capitalist societies
where social caste or birth may have been determinative of one’s rights).

Marx also recognised that these ideological concepts generated by the mode of production
would enjoy some degree of relative autonomy from the economic base.
It is crucial to appreciate that Marx was not suggesting that the doctrines of modern liberalism
represented propaganda by capitalists to serve their own purposes. Marx’s concept of ideology
sought to show that ideas were generated by economic relationships within society, and that this
occurred in such a way that they seemed natural to capitalist and worker alike.
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CLS and the indeterminacy thesis

CLS did not so much add to the indeterminacy thesis developed by the American realists,
such as Jerome Frank, as pick up the American realist criticisms of legal doctrine, and
demonstrate that they were more potent and subversive of law’s claim to be a neutral
arbitrator of disputes than had been acknowledged by the American realists themselves.

Although Frank had argued that law was indeterminate, he also argued that judges should
free themselves from delusions that there were fixed rules and that once they had realised
their creative function they would be more mature and responsible judges.

The CLS movement replaced Frank’s psychologism with a theory about law’s ideological
function. If law performed an ideological function which helped reproduce oppressive
relationships (eg, the relationships between workers and bosses, between white people and
black people, between men and women, etc) then the indeterminacy thesis was even more
significant.

If there are no right answers to legal problems and law in some fashion is made up by judges
as they go along, then the chances are that the purposes served by legal doctrines will be
ideological.
CLS and trashing the law
A number of early CLS scholars saw their function as one of unmasking the ideological roles
played by many traditional legal doctrines referred to by some as “trashing the law”. A number
of techniques were deployed. One was to seek to demonstrate the contradictory values which
might underpin a particular legal doctrine. Thus the criminal law on the one hand, through the
principle of mens rea, seems to assume a notion of free will and individual moral responsibility.
Simultaneously, sentencing policy would, in discounting sentences, acknowledge that crime was
often caused by social and psychological factors beyond the control of the perpetrator. Law is
thus seen to contain internal contradictions which undermine its claim to being an objective body
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of logically coherent doctrine. The contradictions themselves may reflect conflicts within the
society at large. (See for example, Duncan Kennedy’s “Form and Substance in Private
Adjudication” Harvard Law Review, 1976, Volume 89, 685 as an early attempt at this form of
legal criticism).
Post CLS

In the late 80”s and 1990’s the CLS has probably ceased to exist as an identifiable movement
but has been succeeded by a number of different scholarly groups engaged in such things as
developing a feminist jurisprudence or critical race studies.

If one had sought to sum up CLS in a sentence, it would have been that law is politics.

Many CLS proponents were sceptical about the value of any system of formal rule
adjudication as a social control mechanism.

Some critical race scholars (eg, Mari Matsuda) argued however that for some oppressed
groups in the United States the legal system had often been their only protection or bulwark
against oppressive social forces, and that it was simplistic to seek to “trash the law”.

Feminist jurisprudence has not sought to trash the law, so much as expose systematic gender
biases or preference within the law.

Some have argued that the paradigm form of Western law represents a male approach to
solving social disputes.
CLS after the revolution
Many of the early CLS scholars were disparaging of the Western legal model generally, rather
than simply particular laws, and were reluctant to expand on what should replace the legal
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system. Some, like Marxist scholars before them, eschewed offering a “blueprint for the future”.
Despite the suggestions that moral and philosophical claims are culturally dependent and that
one could not establish an objective viewpoint, most proponents of CLS have serious, and deeply
felt political commitments. Explanations as to why one was entitled to continue moral and
political criticism while appearing to deny much of the basis for such claims, are rarely
satisfactory.
Further, in suggesting that traditional legal philosophy was merely engaged in an ideological
project in seeking to overcome the paradoxes and inadequacies of our explanations for law, legal
authority and adjudication, CLS must be committed to the notion that these problems can be
disposed of by disposing of law. However, if we will need some system akin to law for whatever
society we wish to create, it seems inevitable that the sorts of difficulties uncovered by legal
philosophers regarding the nature of meaning, the application of rules, and the problem of
authority will continue to arise. The CLS are unconvincing in the suggestion that the revolution
will do away with the need for law and the problems with which legal philosophers have been
concerned.
Christopher Birch
November 2001