Myth of Rule of Law Flashcards
Indeterminacy
Law is vague and contradictory which opens the door for politics
CLS is a
radical movement of the left that pushed idea of radical indeterminancy and critiqued of rule of law
CLS sees law as
ideological – it caters to and legitimates established social and economic interests
is politics
is radically indeterminate
They believed that notions like the rule of law and legal rights,
which the legal system seemed to promote were also illegitimate, they particularly thought that the notion of value free legal decision-making was a sham
myth of the rule of law
to the extent this phrase suggests a society
in which all are governed by neutral rules that are objectively applied by judges, there is no such thing
power of rule of law derives form
emotive appeal. The rule of law suggests no arbitrariness. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry.
what 3 points does Hansas make
there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society’s power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law
In the real world, it is entirely appropriate to assume that once you have confirmed your hypothesis,
In the legal world, however because it is comprised of contradictory rules, there will be sound legal arguments available not only for the hypothesis one is investigating, but for other, competing hypotheses as well.
all other hypotheses inconsistent with it are incorrect
fallacy of legal reasoning
under the law there is a uniquely correct resolution of the case. Because of this assumption, both believe that their argument demonstrates that they have found the objectively correct answer, the other is engaging in politics
Because the law is made up of
contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test.
This will the one that intuitively “feels” right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs
Is law neutral and objective?
Legal conclusions are always determined by the normative assumptions of the decisionmaker so the law is never neutral and objective
because the law consists of contradictory rules and principles,
sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases.
that this vastly understates the degree to which the law is indeterminate. even if the law were consistent,
the individual rules and principles vaguely and in general language that the DM can interpret them as broadly or as narrowly as necessary to achieve any desired result
it is impossible to reach an
an objective decision based solely on the law.
it is impossible to reach an objective decision based solely on the law. This is because
the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the law is always determined by one’s underlying moral and political beliefs.
Hansas has been arguing
the law is not a body of determinate rules that can be objectively and impersonally applied by judges; that what the law prescribes is necessarily determined by the normative predispositions of the one who is interpreting it.
- law is inherently political.
According to Hansas, can law be reformed institute a true rule of law by creating legal system with consistent rules that are expressed in clear, definite language
we cannot create a legal system with consistent rules that are expressed in clear, definite language, because there is no such thing as uninterpretable language
how do judges interpret law accordinng to Hansas
not objective and neutral because they influenced are influenced by “politics”
impossible to reform the law into a body of definite, consistent rules that produces determinate results
What a legal rule means is always determined by the political assumptions of the person applying it
There is nothing perverse in the fact that the law is indeterminate
y
as long as it is created and enforced exclusively through governmental bodies, it must remain indeterminate if it is to serve its purpose.
Its indeterminacy gives the law its flexibility.
if the law were fully determinate, more rigid and definite
unable to consider inequities in case and provide individual justice
This is why even if we could reform the law to make it wholly definite and consistent, we should not
those who propose to make contract law or probate law more determinate,
fails to take into account equities of each case creating injustice
Hansas has been arguing that the law
is inherently indeterminate but this is not necessarily a bad thing
what do we normally think when we say law is radically indeterminate
what does Hansas say
- judges hearing cases reach different decisions
- law is unpredictable
This is not the case
is the legal system stable?
The observation that the legal system is highly stable is, of course, correct, but it is a mistake to believe that this is because the law is determinate.
Where does the stability of law come from
not from any feature of the law itself, but from judges coming from limited class in society.
What liimted class does judges come from
middle to upper class, white, sharing a great many moral, spiritual, and political beliefs and values.
given that judges come from a limited class, what does this mean for decisions
they reach agreement on how cases are to be decided. But this decision is b/c they come from limited class in society, not because of inherent, objective meaning that exists within the rules of law
the law is not truly stable, since
it is continually, if slowly, evolving in response to changing moral and political values of society. This evolution occurs because each new generation of judges brings with it its own set of “progressive” normative assumptions.
The law appears to be stable because of
slow pace of legal development
what is the current trend and how is this affecting stability of law
greater politicisation of judiciary –> ideological solidarity between judges breaks down –> decisions become unpredictable –> stability of law reduced
law appears to be determinate because
because the law is stable. Not rule of law that gives us a stable legal system; it is the stability of the culturally shared values of the judiciary
Before Hansas, who else proposed that law is radically indeterminate
Critical Legal Studies movement in the mid-1970s and legal realists in 1920s and 30s and Holmes in 1897
If four generations of jurisprudential scholars have shown that the rule of law is a myth, why does the concept still command such fervent commitment?
its purpose is to enlist the emotions of the public in support of society’s political power structure.
People are more willing to support the exercise of authority over themselves when they believe it to be an objective, neutral feature of the natural world.
The myth of impersonal government/rule of law is simply the
the most effective means of social control available to the state.
The Crits then argue that the claim that the law consists of determinate, just rules which are impartially applied to all is a
a ruse employed by the powerful to cause these subordinated classes to view the oppressive legal rulings as the necessary outcomes of an objective system of justice.
the Crits maintain that the concept of the rule of law is simply a
facade used to maintain the socially dominant position of white males in an oppressive and illegitimate capitalist system.
the Crits recognize that the law is indeterminate, and thus, that it necessarily reflects
the moral and political values of judges
The Crits may believe that the law should embody a different set of values than liberals, or conservatives, or libertarians, because the other groups
have accepted the myth of the rule of law, they perceive what they are doing not as a struggle for political control, but to depoliticize the law and return it to its proper form as the neutral embodiment of objective principles of justice.
But the rule of law is a myth, and perception does not change reality.
Crits may recognize it,
And as long as the law remains the exclusive province of the state, we are all are engaged in a political struggle to impose their version of “the good” on the rest of society.
as the law remains a state monopoly
there will always be a political struggle for its control.
The wealthy and the powerful use the law as an instrument
for oppression in order to maintain their place in hierarchy.
he basic idea of CLS is that the law is
politics and it is not neutral or value free
CLS Critique of Liberalism
Legal “rights” [Rule of Law/Democracy] are
symbols for social practices that we collectively maintain. We value the symbols b/c told that we do can live without fear of domination by arbitrary authority
CLS Critique of Liberalism
While rule of law promises egalatarianism
in reality, there is inequality
CLS
Law is politics
Legal discourses are discourses of
Legal discourses are discourses of power reflecting the interests and the perspectives of the powerful people who make most use of them.
CLS Law is politics
Legal discourses are saturated
Legal discourses are saturated with categories and images that for the most part rationalize and justify in myriad ways the existing social order as natural, necessary, and just.
CLS
Law is radically indeterminate means
without a clear, fixed meaning
CLS
CLS scholars place more of an emphasis
role played by factors other than the written law in the shaping of court decisions.
CLS and Legal Positivism
what is legal positivism
Legal positivism: law consists of clear rules that can be applied in an objective and neutral fashion to reach predictable, correct results in a given case.
CLS and Legal Positivism
CLS critique
“rules” of law are often vague and indeterminate, in a way that conveniently hides their ultimately political nature.
courts do not, as positivists such as Hart would say, legislate only in the restricted “penumbral” zone, but all the time
Legal discourses have the legitimating power they do because
they sketch pictures of widely shared ideal—a society of dealings between genuinely free and independent equals, one so ordered that we could cooperate without having to worry that they would hurt or enslave us
Legal discourses are discourses of Power
Law is often but not always the tool of the powerful; makes concessions to powerless; but to use it effectively one needs resources which is a large part of what it means to possess power
Example of Indeterminacy of law in mabo
There are 4 legal positions possible within that same judgement
Example of Indeterminacy of law in mabo
what were the 4 positions
A - No Native Title
B – Traditional Native Title - Majority
C– Native Title and Just Terms (prospectively)
D – Native Title and Just Terms (retroactively)
Argument about radical indeterminancy is not that law is indetemrinate in fact but it is
it is logically indeterminate. Judges could adopt multiple legal positions based on existing legal material but they seem to consistently adopt similar positions
While there are multiple logical options avalable to them, judges consistently choose some over others, because
of their ideological background
If law is radically indeterminate, that means in scenario in Mabo, judges have capacity to go
to go in multiple directions, justify multiple outcomes
CLS
Rule of Law is bad because it
preserves the status quo and existing social, political and economic inequality.
