Myth of Rule of Law

Question 1

Indeterminacy

Answer 1

Law is vague and contradictory which opens the door for politics

Question 2

CLS is a

Answer 2

radical movement of the left that pushed idea of radical indeterminancy and critiqued of rule of law

Question 3

CLS sees law as

Answer 3

ideological – it caters to and legitimates established social and economic interests

is politics

is radically indeterminate

Question 5

They believed that notions like the rule of law and legal rights,

Answer 5

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

Question 6

myth of the rule of law

to the extent this phrase suggests a society

Answer 6

in which all are governed by neutral rules that are objectively applied by judges, there is no such thing

Question 7

power of rule of law derives form

Answer 7

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.

Question 8

what 3 points does Hansas make

Answer 8

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

Question 9

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.

Answer 9

all other hypotheses inconsistent with it are incorrect

Question 10

fallacy of legal reasoning

Answer 10

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

Question 12

Because the law is made up of

Answer 12

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

Question 13

Is law neutral and objective?

Answer 13

Legal conclusions are always determined by the normative assumptions of the decisionmaker so the law is never neutral and objective

Question 14

because the law consists of contradictory rules and principles,

Answer 14

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.

Question 15

that this vastly understates the degree to which the law is indeterminate. even if the law were consistent,

Answer 15

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

Question 16

it is impossible to reach an

Answer 16

an objective decision based solely on the law.

Question 17

it is impossible to reach an objective decision based solely on the law. This is because

Answer 17

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.

Question 18

Hansas has been arguing

Answer 18

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.

Question 19

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

Answer 19

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

Question 20

how do judges interpret law accordinng to Hansas

Answer 20

not objective and neutral because they influenced are influenced by “politics”

Question 21

impossible to reform the law into a body of definite, consistent rules that produces determinate results

Answer 21

What a legal rule means is always determined by the political assumptions of the person applying it

Question 22

There is nothing perverse in the fact that the law is indeterminate

y

Answer 22

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.

Question 23

if the law were fully determinate, more rigid and definite

Answer 23

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

Question 24

those who propose to make contract law or probate law more determinate,

Answer 24

fails to take into account equities of each case creating injustice

Question 25

Hansas has been arguing that the law

Answer 25

is inherently indeterminate but this is not necessarily a bad thing

Question 26

what do we normally think when we say law is radically indeterminate

what does Hansas say

Answer 26

• judges hearing cases reach different decisions
• law is unpredictable

This is not the case

Question 27

is the legal system stable?

Answer 27

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.

Question 28

Where does the stability of law come from

Answer 28

not from any feature of the law itself, but from judges coming from limited class in society.

Question 29

What liimted class does judges come from

Answer 29

middle to upper class, white, sharing a great many moral, spiritual, and political beliefs and values.

Question 30

given that judges come from a limited class, what does this mean for decisions

Answer 30

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

Question 31

the law is not truly stable, since

Answer 31

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.

Question 32

The law appears to be stable because of

Answer 32

slow pace of legal development

Question 33

what is the current trend and how is this affecting stability of law

Answer 33

greater politicisation of judiciary –> ideological solidarity between judges breaks down –> decisions become unpredictable –> stability of law reduced

Question 34

law appears to be determinate because

Answer 34

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

Question 35

Before Hansas, who else proposed that law is radically indeterminate

Answer 35

Critical Legal Studies movement in the mid-1970s and legal realists in 1920s and 30s and Holmes in 1897

Question 36

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?

Answer 36

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.

Question 37

The myth of impersonal government/rule of law is simply the

Answer 37

the most effective means of social control available to the state.

Question 38

The Crits then argue that the claim that the law consists of determinate, just rules which are impartially applied to all is a

Answer 38

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.

Question 39

the Crits maintain that the concept of the rule of law is simply a

Answer 39

facade used to maintain the socially dominant position of white males in an oppressive and illegitimate capitalist system.

Question 40

the Crits recognize that the law is indeterminate, and thus, that it necessarily reflects

Answer 40

the moral and political values of judges

Question 41

The Crits may believe that the law should embody a different set of values than liberals, or conservatives, or libertarians, because the other groups

Answer 41

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.

Question 42

Crits may recognize it,

Answer 42

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.

Question 43

as the law remains a state monopoly

Answer 43

there will always be a political struggle for its control.

Question 44

The wealthy and the powerful use the law as an instrument

Answer 44

for oppression in order to maintain their place in hierarchy.

Question 45

he basic idea of CLS is that the law is

Answer 45

politics and it is not neutral or value free

Question 47

CLS Critique of Liberalism

Legal “rights” [Rule of Law/Democracy] are

Answer 47

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

Question 48

CLS Critique of Liberalism

While rule of law promises egalatarianism

Answer 48

in reality, there is inequality

Question 49

CLS

Law is politics

Legal discourses are discourses of

Answer 49

Legal discourses are discourses of power reflecting the interests and the perspectives of the powerful people who make most use of them.

Question 50

CLS Law is politics

Legal discourses are saturated

Answer 50

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.

Question 51

CLS

Law is radically indeterminate means

Answer 51

without a clear, fixed meaning

Question 52

CLS

CLS scholars place more of an emphasis

Answer 52

role played by factors other than the written law in the shaping of court decisions.

Question 53

CLS and Legal Positivism

what is legal positivism

Answer 53

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.

Question 54

CLS and Legal Positivism

CLS critique

Answer 54

“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

Question 55

Legal discourses have the legitimating power they do because

Answer 55

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

Question 56

Legal discourses are discourses of Power

Answer 56

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

Question 57

Example of Indeterminacy of law in mabo

Answer 57

There are 4 legal positions possible within that same judgement

Question 58

Example of Indeterminacy of law in mabo

what were the 4 positions

Answer 58

A - No Native Title

B – Traditional Native Title - Majority

C– Native Title and Just Terms (prospectively)

D – Native Title and Just Terms (retroactively)

Question 60

Argument about radical indeterminancy is not that law is indetemrinate in fact but it is

Answer 60

it is logically indeterminate. Judges could adopt multiple legal positions based on existing legal material but they seem to consistently adopt similar positions

Question 61

While there are multiple logical options avalable to them, judges consistently choose some over others, because

Answer 61

of their ideological background

Question 62

If law is radically indeterminate, that means in scenario in Mabo, judges have capacity to go

Answer 62

to go in multiple directions, justify multiple outcomes

Question 63

CLS

Rule of Law is bad because it

Answer 63

preserves the status quo and existing social, political and economic inequality.