Lecture 5 Flashcards
Power and the relationship between law and its subjects
- 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
Why law matters
Cattanach v Melchior HC
Held
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
Why law matters
Cattanach v Melchior HC
Facts
- 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)
Why law matters
Cattanach v Melchior HC
prior the HC decision
Australian legal authority on whether damages could be awarded in these circumstances was limited and inconclusive.
Why law matters
Cattanach v Melchior HC
criticisms
- 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.
Judicial activism
(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
Judicial rulings are frequently
pcriticised, characterised and caricatured as examples of so-called ‘judicial activism’.
what would you argue if you were the lawyer for Dr Cattanach
birth of a healthy child is not an actionable form of harm (and therefore not something to be compensated for by law)
context of the Cattarach ruling
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.
Judges…have the responsibility of
according to Kirby J in Cattarach
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.
Non-positivist view of what law is
- 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.
positivist view of what law is
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.
positivist view of what law is made up of
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.
how does positivist and non-positivist position of law affect cases?
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
Native Title Act s 223 as to why law is important
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?
positivism claim vs non positivist
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
originals of legal postivism
A reaction to earlier natural and divine law theories which came under increasing critique from the rise of science, industrialisation and secularism
natural theory
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.
natural law theory
types of law
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.
in pre positivist world
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.
Posivist legal theory seen as primarily
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
Relatively little interest in normative questions about law (how the law should be). Therefore, limited place within positivist legal theory for
critical thinking on the basis of some non-scientific body of knowledge such as morality or religion
Australia’s concept of law
Command
Every law or rule is a command
Australia’s concept of law
Sanction
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’.
The classical positivist model holds that a legal system comprises:
according to Hart
- 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).
Austin
Legal Obligation
being subject to a sovereign command backed by sanction.
Austin
Separability thesis
Law has no necessary connection with any given set of moral norms. Law is separate (different) from morality in this sense.
Austin
Separability thesis
implication
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’.
Purpose of law for Austin
effective government not the protection of natural rights or the realisation of some other social good.
Austin theory distinguished from rule of law
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”.
Austin and natural and fundamental rights
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
Marxist theory
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.
marxist theory
law and economic
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).
Marx differs from Austin in claiming that all modern law is
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.
Marx theory
separability thesis
nlaw necessarily reflects the morality/political values of the capitalist class
Marx theory
law as ideological
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.
Both Marx and Austin sceptical of
ndivine or natural law and of natural or fundamental human rights.
- Austin on scientific grounds.
- Marx on scientific and ideological grounds.
Critique of Marx
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.
core nature of law, Austin’s answer is that laws
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.
According to Austin, positive law has three main features
it is a type of command.
It is laid down by a political sovereign.
It is enforceable to sanction.
According to Austin , law is law only if it is
effective and it must be generally obeyed. Perfect obedience is not necessary
Austin defined law as
“a rule laid down for the guidance of intelligent being by an intelligent being having power over him
According to Austin laws are two kinds,
Divine Law
Human law –> laws properly so called (positive law - set by politcal superiors) laws improperly so called (clubs)
According to Austin positive law has the following characteristics
- Law is command: order issued by soverign to inferior. Not wish, request. No option but to obey
- Legal duty to obey command
- Sanction to enforce the law.
- Separation thesis
MERITS OF Austin THEORY
Austin gave a clear and simple definition of law.
By separating law from morality, Austin tried to avoid a lot of confusion.
Cricism of Austin
overlooks moral or ethical elements of law. The end of law is justice. Any definition of law without reference to justice is inadequate
applicability of austion theory of law to international law and constitutional law
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
How is command different from request and wish
element of fear and punishment for disboedience
General command
General command is guidance of the whole community
Austin Sovereignty
- 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
Hart’s claim that Austin conflates obligation
Hart’s claim that Austin conflates obligation with the “gunman situation.”
Austin and Hart disagreed about how to understand legal obligation.
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.
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
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.
according to austin,
sovereign authority
is the person, body or aggregate of individuals that makes laws for that society
According to Austin, every right implies
a corresponding duty but every duty does not imply a corresponding right.
According to Austin, “the sovereign has no
rights and duties. It cannot issue commands against itself or bind itself to anything consequently no subject can own a right against the state.”
Austin’s notion of command
a wish by rational being that another rational being should do or avoid doing.
sanctions if disobeyed
relationship between sovereign, sanction and command
Law is made when sovereign issues a command
Sanction is indispensable to law
what did Austin say about separability
A law that exists is a law even though it may be disliked
what did Austin say about separability
how does this connect with his theory of command
command of sovereign. since sovereign’s commands may be evil –> law and morality is separated
Among the laws established by men for men one may distinguish:
(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)
Only those commands that have a
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.
A command contains three elements:
(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)
A sovereign has the ability to
establish norms and is able to compel obedience for these norms under the threat of sanction.
John austin
first great positivist students of utilitarian phisopher jeremy bentham
why is there no morality?
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
