Unjust laws Flashcards
Dyzenhaus
what is his claim
the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable e.g. South African Legal system
What does Dyzenhaus says about a positivist approach
if you are in anything less than a well functioning democracy, then adopting a positivist approach to judging can be extremely damaging points to apartheid regime in SA
what are plain fact judges
judges interpreted apartheid laws just as the government wanted them interpreted.
the conduct of lawyers and judges in oppressive or otherwise evil governments.
Lawyers and legal scholars have long been intrigued, puzzled, and sometimes embarrassed by the conduct of lawyers and judges in oppressive or otherwise evil governments.
For anyone holding the romantic ideal of the lawyer as someone who stands up to injustice rather than serving as part of it, the widespread participation of lawyers and judges in demonstrably unjust legal systems and political regimes is an uncomfortable fact
David Dyzenhaus, a native South African (now a long time resident of Canada), explored the
role of judges and lawyers in apartheid South Africa.
Under the plain fact view,
a legal rule should be followed, applied, and enforced, even if the official doing the application or enforcement believes that the application or enforcement would produce outcomes that are morally defective, unwise as policy, or inconsistent with the deeper purpose lying behind the rule
under the common law approach, an application of a rule that possesses any of these defects is legitimately an occasion for
an occasion for the applier or enforcer to revise the rule or to refuse to apply or enforce it on this particular occasion
What should common law judges do
adopt interpretative approach to screen out morally repugnant principles
effects of plain fact judges
makes wicked legal system worse than it could be.
Fundamental common law standards
reasonableness, fairness, equality and justice
what happens when common law judges adopt fundamental common law standards
public acceptance of the legitimacy of law
Legal systems do not exist if these are not present
In contrast with plain fact judges, common law judges resist
using law to strengthen govenrment’s oppression
what are sound decisions
those decided in accordance with common law standards
how do common law standards display constitutionality
judges upholding them are a bulwark between citizens and gov
what happens if common law standards are removed
government is governing through arbitrary power, not law
when does indeterminacy arise
disagreement about the context the statute art to be interepreted
administrative lawyers will argue statute should be interpreted in a
plain fact approach
othes will argue statute should be interpreted in a
an interpretative context of certain common law standards
What is a constructive intention?
when judge interprets text in accordance with common law standards
what happens when legislatives diverge largely from common law ideals,
they lack legal and moral authority. Judges can strike them down as illegal
best approach for Dyzenhaus
plain fact judges ignore any kind of wickedness embedded in the statute
Plain fact approach
apply the law without much concern of substantive or moral issues
common law approach
screens out morally repugnant principles by setting the statute in an interpretative context of common law principles
democratic legal positivism
common law is contrary to democracy b/c judicial review or judicial dissent of national security is counter majoritarian since judges are not elected
democratic legal positivism
executives?
executives have expertise in national matters and representative of the people –> receives legitimacy from the the people
Plain fact approach applies law
as it exists and not according to what morality requires
What is in place after 9/11
anti terrorism legislations
What is the problem with terrorist legislations
deprive individual liberty
terrorist legislations target ‘aliens’ -the illegal immigrants, the refugees who had opposed the political regime oftheir native land, people with a different skin colour, homegrown political dissidents, or anyone else who is already marginal or whom powerful groups would prefer to be marginal
the ineliminably vague and political understandings of ‘terrorist’ and ‘national security’ give
executive a wide scope for dealing conveniently with those it considers to be threats.
Secretary of State v Rehman,’
state’s secretary ordered that Rehman be deported from UK b/c it was found he was involved in an Islamic terrorist organisation even tho he would never be violent in UK
Dysenhaus definition of democratic legal positivism
for democratic reasons legislative power should be located in the assembly of the people, and, judges should interpret the law in accordance with the intentions of the legislature as expressed in its statutes, and the executive administration should confine its role to implementing the statutes within the legal limits set by the legislature
Dysenhaus definition of democratic legal positivism
for democratic reasons legislative power should be located in the assembly of the people, and, judges should interpret the law in accordance with the intentions of the legislature as expressed in its statutes, and the executive administration should confine its role to implementing the statutes within the legal limits set by the legislature
process/substance distinction
is not consistent with democratic legal positivism, but that, like dualism, it is not too inconsistent; it permits judges to keep a grip on their sense that they are leaving political decisions to be made in the proper forums, either by Parliament or by Parliament’s delegates
how does the court interfere with substance with wednesburyunreasonableness
wednesbury unreasonableness is when a court can review a decision because the original decision maker’s decision was so unreasonable that no reasonable person would have made it e.g. no reasons, did not take into account relevant factors
if it doesn’t meet this, court won’t review. If court reviews when it is reasonable, then this interferes with substance
Any invitation to engage in more intrusive review will, so democratic legal positivists think,
lead judges inexorably into reviewing substance,
prerogative
legally uncontrolled area of pure politics, but a legally uncontrollable or non-justiciable area.
Lord Hoffmann in Rehman seemed at one point to suggest that when it comes to decisions about national security
the executive has a ‘constitutional prerogativ
for matters of high political importance
a very wide discretionary. authority is naturally apt especially where the official directly responsible for the decision is the relevant cabinet minister
democratic legal positivist bent had an a Jortiori argument for not imposing the rule of law on
about high politics
executive uses the legislature to give itself
plain-fact
a free hand in the suppression ofpolitical opposition.
creation of tribunals like the United Kingdom’s Special I m m i g r a t i o n A p p e a l s C o m m i s s i o n is p a r t o f a g e n e r a l p r o c e s s o f
normalising the exception, of subjecting politics to the norms of the rule of law
he creation of tribunals like the United Kingdom’s Special I m m i g r a t i o n A p p e a l s C o m m i s s i o n is p a r t o f a g e n e r a l p r o c e s s o f normalising the exception, of subjecting politics to the norms of the rule of law. While this process was generally initiated by judges, legislatures
have often joined in, sometimes perhaps in order to try to wrest control over the administration back from judges, at other times because of the sense of a need to respond either to growing public concern about unconstrained executive power or to the successful activism of human rights group
judges are tom between two conceptions of their role
on the one hand, they recognise that their role in legal order is to uphold the rule of law, where law includes more than statute law. On the other hand, they still cling to a formal conception of the separation of powers which deprives them of the resources to uphold the rule of law.
They resolve this tension by claiming that they are upholding the rule of law,
A rather different perspective, however, opens up if one sees judges as involved
in a process of giving substance or content to the rule of law in which the judiciary is but one of the drivers of the process.
judges should and will read down the legislative invitation to engage in value-based review, when the review is of highly political decisions. In this case, judges
decline the legislative invitation because to take it up would be to adopt a role which underntines their understanding of the proper arrangement of the separation of powers.
When judges are faced with a terrorism statute, they confront a legislative attempt to
bring the most exceptional exception - the state of emergency which temporally suspends the operation of ordinary law - into the stable framework of law and order. The governments that initiate such legislation ntight hope that judges will respond by taking a hands-(lff approach on review when they are confronted by these pockets of lawlessness.
Hard (National Security) Cases
in Good Legal Systems
Good legal systems have
npockets of (wickedness) prerogative – exceptions from the rule of law.
Statutes grant wide discretionary powers to
nthe executive to deal with the ‘others’
Are judges under a legal duty to apply morally repugnant law?
3 options
1.Resign (or refuse jurisdiction) – walk away
●
2.Positivist ‘plain-fact’ approach
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3.Screen out morally repugnant principles
Are judges under a legal duty to apply morally repugnant law?
3 options
1.Resign (or refuse jurisdiction) – walk away
appoint someone who is willing to go along with evil laws
nAre judges under a legal duty to apply morally repugnant law?
nJudges have 3 options:
1.Resign (or refuse jurisdiction) – walk away
●
2.Positivist ‘plain-fact’ approach
problematic according to disenhouse. Morality, immorality is not for us to decide upon. Our role is to enforce and apply
This is the worst makes legal system the worst system it can be .
nThe plain-fact approach makes a wicked system the worst it could be:
Legislature enacts statutes giving subtle clues to its intentions and wide discretionary powers to executive
Judges assume jurisdiction to interpret the law but hold that they have no jurisdiction over officials (it is their decision)
what role does judge have in wicked legal system
Dyzenhaus that judges have 2 positions to take.
Legal system is so wicked, it stops being a legal system and laws stop being law so judges have no obligation to enforce
OR screening approach which is to argue that in common law system, there are certain fundamnetal principles such as reasonableness, fairness, equality and justice which are part of common law and without which common law would not exist
If these principles do not exist in legal system, it stops
it stops being a comon law system.
You can’t call them common law system b/c common law system has to have regard to these fundamental principles
nReasons why such prerogative powers should be reviewable:
qThe history of government decisions outside of the rule of law and judicial passivity in the face of such abuse of powers
qThe exception might become the norm – executive’s claims to unregulated powers may expand in other areas
Democratic Legal Positivism (DLP), with its belief in formal
separation of powers, is opposed to the judicial review of executive prerogative, and especially on national security
qAl-Kateb v Godwin ([2004] HCA 37)
rehman is authority for
House of Lord’s preference for deference to government in national security matters. Loff Hoffman based his reasoning on separation of powers in UK
Rehman on accountability
political over legal accountability for national security matters
When was State of Secretary v Rehman decided
month after 9/11
in Rehman what did the hOuse of Lord held
it unanimously upheld the decision of the Secretary of State to deport a Pakistani-born Imam because the Security Service alleged that he was involved in terrorist activities in the Indian sub-continent
rehman and special commission findings
the Court held that the specialized commission which had reviewed the secret evidence of the Security Service and found no threat to national security had not been deferential enough to the Secretary of State’s opinion and it had too narrowly interpreted the United Kingdom’s national security and foreign policy interests.
Lord Hoffmann concluded that judicial deference to the executive was in order because
the executive had secret information and expertise in matters of national security and a democratic legitimacy that the judiciary did not.
Although Rehman did not deal with a challenge to legislation
Lord Hoffmann’s remarks suggest that courts since 9/11 would also be deferential to new anti-terrorism laws because of the democratic legitimacy of elected legislatures
The Supreme Court’s decision in Suresh also demonstrates a common deference
to the executive in matters of immigration law
In 2007, the Supreme Court of Canada held that
Charkaoui v. Canada
the use of immigration law to detain suspected terrorists violated standards of fundamental fairness under the Charter because it did not allow for any adversarial challenge of secret evidence that the government submitted to the judge
Rehman stressed judicial deference in national security matters.
in reality?
the courts of a number of democracies have played a more active in scrutinizing anti-terrorism efforts
vigourous judicial review of antiterrorism efforts can be justified
first
given the importance of respecting human and minority rights when combating terrorism
some anti-terrorism efforts have the effect of violating the rights of unpopular minorities.
vigourous judicial review of antiterrorism efforts can be justified
second
vigourous judicial review of antiterrorism efforts can be justified
first
some anti-terrorism efforts have the effect of violating the rights of unpopular minorities.
HOL
indeterminate detention of non-citizens suspected of terrorism was not rationally connected to preventing terrorism given that the terrorist threat also came from British citizens. The 2005 London bombings proved that the House of Lords’ insight was correct
subsequent British anti-terrorism measures, including control orders and new terrorism offences, have applied to both citizens and non-citizens
in enforcing anti-terrorism laws what offends equality values
Racial or religious discrimination
The deference that motivated Lord Hoffmann in his 2001 Rehman decision was driven by the idea that
he elected branches of government had a greater democratic legitimacy and expertise on matters of national security than the courts
Legislatures often enact anti-terrorism laws….
very quickly for symbolic reasons and in response to traumatic events when there is not enough time or information for proper deliberation. The immediate aim of much legislation is to re-assure the public
b/c legislature enact anti legislation laws quickly and to re assure public, what should court do
Courts should not ignore evidence that much legislative policy-making in the terrorism areas is made up without full information or time for deliberation.
In A v State of Secretary, the House of Lords implicitly repudiated Lord Hoffmann’s idea that the elected branches of government had greater democratic legitimacy than the courts when Lord Bingham stated
Although “judges in this country are not elected and are not answerable to Parliament”, they do play a democratic role in enforcing the rule of law. As such, it “is wrong to stigmatise judicial decision-making as in some way undemocratic
that courts are starting to recognize that respect for rights, including those of unpopular minorities,
One of the important components of Lord Hoffmann’s defence of judicial deference in Rehman was the idea that
the executive has greater knowledge and expertise in matters of national security
