Lecture 5

Question 1

Power and the relationship between law and its subjects

Answer 1

• Individual obligations under law – the power of law over subjects
• Rule of law – law as limited in and limiting of power
• Rights – empowerment under law
• Democracy – the power of subjects over law

Question 2

Why law matters

Cattanach v Melchior HC

Held

Answer 2

HC majority that the parents could recover compensation from doctor for raising and maintaining their child to age 18, thus departing from the law in the United Kingdom on this matte

Question 3

Why law matters

Cattanach v Melchior HC

Facts

Answer 3

• couple gave birth to an ‘unintended’ but healthy child
• Dr Cattanach had performed a sterilisation procedure on Mrs Melchior b/c she already had 2 healthy daughters and she decided they did not want more children. 4 years after, she became pregnant
• This happened because both she and her doctor mistakenly believed she only had one fallopian tube (medical negligence)

Question 4

Why law matters

Cattanach v Melchior HC

prior the HC decision

Answer 4

Australian legal authority on whether damages could be awarded in these circumstances was limited and inconclusive.

Question 5

Why law matters

Cattanach v Melchior HC

criticisms

Answer 5

• open (or widen) the floodgates on successful litigation against doctors, placing them under increased and unacceptable economic strain, and affecting their ability to deliver professional services to the community.
• inappropriate judicial activism.

Question 6

Judicial activism

Answer 6

(appointed) judge has inappropriately ‘stretched’ legal principle to give effect to a policy result that properly should be determined by the (elected) legislature.

The charge is often accompanied by an assertion that the judge’s so-called activism has produced a legal result that reflects the judge’s own personal or political views. These accusations frequently arise where the personal or political perspective of the commentator as to the desirable policy result differs from the perspective imputed to the judge

Question 7

Judicial rulings are frequently

Answer 7

pcriticised, characterised and caricatured as examples of so-called ‘judicial activism’.

Question 8

what would you argue if you were the lawyer for Dr Cattanach

Answer 8

birth of a healthy child is not an actionable form of harm (and therefore not something to be compensated for by law)

Question 9

context of the Cattarach ruling

Answer 9

no settled legal rule at common law on whether the cost of raising a healthy child was or was not an actionable (legally recognisable) form of harm in these circumstances.

Question 10

Judges…have the responsibility of

according to Kirby J in Cattarach

Answer 10

expressing, refining and applying the common law in new circumstances in ways that are logically reasoned and shown to be a consistent development of past decisional law.

no authority to adopt arbitrary departures from basic doctrine.

Question 11

Non-positivist view of what law is

Answer 11

• decided the case according to the Australian community’s moral beliefs and norms (which is believed to be part of the law) about the value of raising children.
• law also includes these other commonly held moral and political norms that operate within our society. judge may legitimately draw upon communal morality in certain cases even if those norms have not been legislated or don’t form part of the existing common law.

Question 12

positivist view of what law is

Answer 12

decide cases on the basis of the law, not on the basis of morality, even if it is the community’s morality. Law and morality are two separate things. The rule of law demands they be kept separate.

Question 13

positivist view of what law is made up of

Answer 13

rules that form the Constitution or that are validly enacted by Parliament (or its delegates) or that make up or follow from the established rules of the common law.

Question 14

how does positivist and non-positivist position of law affect cases?

Answer 14

Our different understandings (or theories) of the nature of law have led us to take different approaches to deciding the case at hand and to have different understandings of the proper role of judges in deciding cases

Question 15

Native Title Act s 223 as to why law is important

Answer 15

Necessary conditions of native title:

• Pre-colonial and contemporary indigenous law
• Pre-colonial and contemporary indigenous rights in land under indigenous law

Two key issues:

• Did/do indigenous people have law?
• Did/do indigenous people have legal rights in land?

Question 16

positivism claim vs non positivist

Answer 16

law and its judges are neutral and objective

law is social discourse. readings of law through own values and community

Law as a social fact

Question 17

originals of legal postivism

Answer 17

A reaction to earlier natural and divine law theories which came under increasing critique from the rise of science, industrialisation and secularism

Question 18

natural theory

Answer 18

law defined in a morally loaded way. They withhold the obligation to obey the law if it is not moral by appealing to moral or religious principles.

Question 19

natural law theory

types of law

Answer 19

Divine law created by God for men, was that set of principles revealed by Scripture

natural law was eternal law as it applied to human conduct.

Question 20

in pre positivist world

Answer 20

positive law (created by humans) is widely considered subordinate to natural/divine law which is either created by God or is inherent in nature and/or human nature.

Positive law must reflect natural/divine law in order to be truly law, worthy of obedience and capable of creating a good life for its subjects.

Question 21

Posivist legal theory seen as primarily

Answer 21

descriptive and analytical. A science like physics or economics.

Sceptical about morality (code for religion?) playing a significant independent role in legal practice and the operation of law

Question 22

Relatively little interest in normative questions about law (how the law should be). Therefore, limited place within positivist legal theory for

Answer 22

critical thinking on the basis of some non-scientific body of knowledge such as morality or religion

Question 23

Australia’s concept of law

Command

Answer 23

Every law or rule is a command

Question 24

Australia’s concept of law

Sanction

Answer 24

Law is fundamentally an exercise of power.

Law is fundamentally linked to sanctions –> without sanction, no law

A sanction is ‘an evil which will probably be incurred in case a command be disobeyed’.

Question 25

The classical positivist model holds that a legal system comprises:

according to Hart

Answer 25

• Some person or body of persons,
• Issuing general orders,
• Backed by threats/sanctions,
• Which are generally/habitually obeyed,
• It must be generally believed that these threats are likely to be implemented in the event of disobedience (fear of sanction),

nThis person or body must be internally supreme and externally independent (ie sovereign).

Question 26

Austin

Legal Obligation

Answer 26

being subject to a sovereign command backed by sanction.

Question 27

Austin

Separability thesis

Answer 27

Law has no necessary connection with any given set of moral norms. Law is separate (different) from morality in this sense.

Question 28

Austin

Separability thesis
implication

Answer 28

Amoral or immoral law may still be valid law and impose valid legal obligations on its subjects.

General jurisprudence is ‘the science of positive law, considered without regard to its goodness of badness’.

Question 29

Purpose of law for Austin

Answer 29

effective government not the protection of natural rights or the realisation of some other social good.

Question 30

Austin theory distinguished from rule of law

Answer 30

Not rule of law where government is subect to law t is a theory of the ‘rule of men’ – of government [and law] as an instrument of power”.

Question 31

Austin and natural and fundamental rights

Answer 31

no rights or laws which are somehow inherent in the human condition, in human nature or in the very essence of social or community life.

All laws, rights and duties are created by positing rules, the laying down of rules as an act of government

Question 32

Marxist theory

Answer 32

all major social institutions including law necessarily represent and further the interests of the dominant capitalist class and act against the interests of the working class.

Law is ultimately a matter of oppressive power and operates in modern societies as the commands of the sovereign government (Monarch/Parl/Junta etc), who in turn represents the interests of the capitalist class.

Question 33

marxist theory

law and economic

Answer 33

nLaw both reflects and serves the functioning of the economic base of society (capitalism).

Law not only maintains class relations (oppression) but facilitates economic relations more generally (eg through law of contracts, commercial law, finance law, etc).

Question 34

Marx differs from Austin in claiming that all modern law is

Answer 34

necessarily oppressive of a substantial part of the population.

On Austin’s model, the sovereign and its law may or may not be oppressive for the subjects of law.

Austin assumes the British sovereign Parliament and its laws are not oppressive.

Question 35

Marx theory

separability thesis

Answer 35

nlaw necessarily reflects the morality/political values of the capitalist class

Question 36

Marx theory

law as ideological

Answer 36

law presents itself as if it were neutral or just or fair etc in order to gain the trust and obedience of those it actually oppresses

Law disguises its true intent and operation through these mystifying or ideological means (discourse of human rights, equality, rule of law, fairness, justice, etc).

Austin shows no interest in the ideological function of law.

Question 37

Both Marx and Austin sceptical of

Answer 37

ndivine or natural law and of natural or fundamental human rights.

• Austin on scientific grounds.
• Marx on scientific and ideological grounds.

Question 38

Critique of Marx

Answer 38

Overemphasis on economic class? Fails to note other important social groups (genders, races, cultural groups). Some struggles can’t be reduced to class conflict - eg environmental, nuclear disarmament.

Question 39

core nature of law, Austin’s answer is that laws

Answer 39

commands of a sovereign

“Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.

Question 41

According to Austin, positive law has three main features

Answer 41

it is a type of command.

It is laid down by a political sovereign.

It is enforceable to sanction.

Question 42

According to Austin , law is law only if it is

Answer 42

effective and it must be generally obeyed. Perfect obedience is not necessary

Question 43

Austin defined law as

Answer 43

“a rule laid down for the guidance of intelligent being by an intelligent being having power over him

Question 44

According to Austin laws are two kinds,

Answer 44

Divine Law

Human law –> laws properly so called (positive law - set by politcal superiors) laws improperly so called (clubs)

Question 45

According to Austin positive law has the following characteristics

Answer 45

1. Law is command: order issued by soverign to inferior. Not wish, request. No option but to obey
2. Legal duty to obey command
3. Sanction to enforce the law.
4. Separation thesis

Question 46

MERITS OF Austin THEORY

Answer 46

Austin gave a clear and simple definition of law.

By separating law from morality, Austin tried to avoid a lot of confusion.

Question 47

Cricism of Austin

Answer 47

overlooks moral or ethical elements of law. The end of law is justice. Any definition of law without reference to justice is inadequate

Question 48

applicability of austion theory of law to international law and constitutional law

Answer 48

International law is not the command of any sovereign, yet it is considered to be law

constitutional law also. Constitutional law of country defines the power of various organs of the state. Nobody can be said to command himself

Question 49

How is command different from request and wish

Answer 49

element of fear and punishment for disboedience

Question 50

General command

Answer 50

General command is guidance of the whole community

Question 51

Austin Sovereignty

Answer 51

• Determinate human superior
• not a subordinate; not habit of obeying
• habit of receiving obedience from bulk of society
• can be individual, body or aggregate of individuals

Question 52

Hart’s claim that Austin conflates obligation

Answer 52

Hart’s claim that Austin conflates obligation with the “gunman situation.”

Question 53

Austin and Hart disagreed about how to understand legal obligation.

Answer 53

Austin traced it back to commands and sanctions. Hart thought that obligations are best understood as a product of rules and that Austin’s method would never yield an adequate understanding of rules.

Question 54

Hart thought that obligations are best understood as a product of rules and that Austin’s method would never yield an adequate understanding of rules.

explain

Answer 54

In rule governed activities like games, you can only accomplish what you want if you follow the rules e.g. baseball

Hart thought that obligation is best understood as a kind of rule-governed behavior. To think that you have an obligation to do something is to take the internal perspective on the rules that require you to do that thing.

Question 55

according to austin,

sovereign authority

Answer 55

is the person, body or aggregate of individuals that makes laws for that society

Question 56

According to Austin, every right implies

Answer 56

a corresponding duty but every duty does not imply a corresponding right.

Question 57

According to Austin, “the sovereign has no

Answer 57

rights and duties. It cannot issue commands against itself or bind itself to anything consequently no subject can own a right against the state.”

Question 58

Austin’s notion of command

Answer 58

a wish by rational being that another rational being should do or avoid doing.

sanctions if disobeyed

Question 59

relationship between sovereign, sanction and command

Answer 59

Law is made when sovereign issues a command

Sanction is indispensable to law

Question 60

what did Austin say about separability

Answer 60

A law that exists is a law even though it may be disliked

Question 61

what did Austin say about separability

how does this connect with his theory of command

Answer 61

command of sovereign. since sovereign’s commands may be evil –> law and morality is separated

Question 62

Among the laws established by men for men one may distinguish:

Answer 62

(1) laws established by persons who act as political superiors for political inferiors—positive laws;
(2) laws established by persons who are not political superiors or do not act in that role.
(3) positive morality (law established not by political authorities or rules improperly called laws: opinions, customs, and prejudices the rule in a particular society; customary and international law)

Question 63

Only those commands that have a

Answer 63

Only those commands that have a general character can be norms or rules, while commands that impose an obligation to perform a single action or prohibit a single action do not belong to law.

Question 64

A command contains three elements:

Answer 64

(1) a wish (or desire) of a thinking being that another thinking being must do or avoid;
(2) an evil dealt by the first being and suffered by the second if he does not carry out the wishes of the first (a sanction);
(3) making others aware of a particular wish by words or other signs (the form in which the command is given is not essential)

Question 65

A sovereign has the ability to

Answer 65

establish norms and is able to compel obedience for these norms under the threat of sanction.

Question 66

John austin

Answer 66

first great positivist students of utilitarian phisopher jeremy bentham

Question 67

why is there no morality?

Answer 67

Law as command is seen as freestanding, no scope for morality

• law is command issued by sovereign, punishment and people are generally obedient to command.

Dont need God, don’t need morality to understand what is law