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Introduction to Jurisprudence
Jurisprudence = legal reasoning, theory and philosophy of law
Enquiry: greater understanding of the law, what it is, what it does, and what it ought
to do
‘The law in its majestic quality makes it an offence for rich and poor alike to steal a
loaf of bread or to sleep under a bridge.’ – Anatole France
This law clearly applies to the poor man – formalist statement
Prisoner 24601
Imprisoned for 19 years for stealing a loaf of bed
Is this right?
UK Theft Act 1986 – 5 elements of theft – meets the criteria
Freeganism
January 2014 – men charged from stealing food from a skip
Is it theft to take discarded items?
Do the reasons matter? E.g. necessity v trying to save money
Morality of throwing away/wasting food
* Once again, moral v legal argument
* Impact of public opinion and disregard of statute
CAN and SHOULD we draw lines between what is morally desirable and what is
legally obligatory?
Legal Validity
A legal rule does not state a fact but rather prescribes a course of conduct
We have to examine our preconceptions about the law
A legal rule demands that we either do something or refrain from doing
something
A legal rule is derived from a valid authority
Lord Bingham on ECHR and HRA 1998: ‘the basic and fundamental rights which
everyone has in this country ought to enjoy simply by virtue of their existence as a
human being.’
Main Points
Objective moral principles that depend upon the nature of the universe and
are discoverable by reason
Factual statements may be proved, moral judgements may not
Natural law struggles with the critical problem of whether moral
propositions can be derived from propositions of fact, namely whether an
‘ought’ can be derived from an ‘is’
Human laws are not statements of fact – they are not subject to verification
There is a rational order that exists in nature that is discoverable by human
reason
Authority comes from nature, not from human beings
These create a higher form of law as opposed to manmade law which can
be invalidated
“True law is right reason in agreement with nature … it is a sin to try to alter this law.
God is the author of this law” – Cicero, On the Republic
Examples:
Legal Nazi regime in Germany
British occupation of India (Ghandi)
US civil rights movement (Martin Luther King)
* Nothing has really changed – it was forgotten about with the rise of positivism
Consent
Man is born free but he is everywhere in chains – Jean-Jacques Rousseau
No man can be subjected to the political power of another without his own consent –
John Locke
Obedience to authority is legitimated by voluntary submission to those who
exercise authority
Idea of submission being voluntary that is important
If men are all free and equal how do we exist in the societies we live in
today?
Why would people voluntarily relinquish their natural rights (power) to the
collectivity?
To receive some benefit or to secure certain objectives
‘Every man is enemy to every man… and the life of man solitary, poor, nasty, brutish
and short.’ – Hobbes lived through a time of upheaval and was disgusted by society.
His main aim was physical security – you could only rely on your own strengths.
His state of nature is a pre-social society, before the creation of a nation
state
The Leviathan
Sea monster – a biblical creature – found in many contexts
Mortal God, sovereign, artificial man, Civitas
Represents diabolical power
We have created it for our common peace
Protective giant figure – metaphorical
o Criticism – this person has all the power when the people have
none
o Any political order is better than anarchy
Father of positivism?
Justice and law are co-extentive (the same)
Essentially makes him a positivist
Contractarianism
A political theory of the legitimacy of political authority
A moral theory about the origin or legitimate content of moral norms
Do not ground morality or political authority in divine will
Unit of the individual
Justification for certain forms of government
Hobbes, Locke, Rousseau, Rawls
Differences
Hobbes uses the social contract to explain the validity of the political and
thus legal order
Used to reconcile the liberty of the individual citizen with the power of the
State
Justification and legitimation
Relationship between citizen and government
Locke (1632-1704)
Age of enlightenment
Context: great fire of London, great plague, glorious revolution
Argues against absolute monarchy
Father of liberalism
Second Treatise of Government – most famous book
Locke’s concept of the State of Nature is peaceful, idyllic, and benign. This is a stark
contrast to Hobbes’ anarchic and violent concept of the State of Nature.
The state of nature has a law of nature to govern it, which obliges everyone; and
reason, which is that law, teaches all mankind – equal and independent with no
harm. ‘Life, liberty and possessions.’
‘In Common’
Main concern in the state of nature is hunger, and thus the means of
subsistence become important
We have a natural right to our preservation and life and also a right to
other things that help this subsistence
Acquisition Theory
How do we move from possessions in common to private property?
Removes out of the state that nature provides, mixing your labour with it,
has joined something of their own then it becomes your property
This theory has been used to justify colonialism and land acquisition in the
UK today
The assertion of a claim should not be sufficient
Private Property
Locke’s aim is to demonstrate that it is morally justifiable for individuals to
take resources from their natural state (in common) and to keep them for
themselves to the exclusion of all others.
Original acquisition of property rights
Context
Highly charged political debate in 17th C England about the legitimacy of
property rights as against an absolute monarchy
Private property rights were held only by the grace of the monarch, who
could withdraw them at will
Mixing your labour with natural resources adds value/improves them
Perpetual ownership? How to continue improving something
Since we have entered into civil society and the commonwealth, we have quitted the
power to punish and have given the right to the commonwealth to employ his force
for the execution of judgement. This leads to the origin of the legislative and
executive power of civil society.
Limited Government
Individuals consent to be governed – fiduciary relationship
We only relinquish the bare minimum as required for the state to exert it
Delegation of some natural rights compared to Hobbes’ alienation
People retain the right to resist tyranny and the right to rebel or revolt
American Revolution – Declaration of Independence 1776 – used Lockean
thought to justify their motives
o ‘derive their just powers from the consent of the governed’
o This statement came from male white landowners – must be
applied in context
Avoiding indeterminacy
18th C common law failed to provide a clear and reliable public standard
that could guide behaviour
Indeterminacy affects legitimacy
Codification (law reform) and the construction of a complete body of law
His aim was to decrease what he considered to be the excessive arbitrary
power of judges
The Sovereign
This person/organisation is supposed to be in a disposition to pay obedience
In a state of subjection to its author
Command Theory
‘the command of a sovereign backed up by a sanction’
Tripartite conception of law
Command (imperative)
Sovereign (power)
Sanction (motivation)
Benthamite Utilitarianism
The principle of utility that affords the only clue to guide a man through these straits.
Positivism recap
Separation of law and morals
Descriptive – describes how law ‘is’
Based on verifiable social facts
Main question: what is the law? How do we distinguish legal standards from other
standards and rules that govern our conduct?
Gunman Example
Classical positivists – gunman achieves aims through threat of force
You comply with demands not because you feel like you ought to, but
because you are forced to
But what about obligation?
The gunman has the power to make me hand over my money, but no
authority to harm me
Revolves around POWER
You should follow the law
Being coerced to do something is different that being obliged to do
something
Rule of recognition
Provides the ultimate criterion of legal validity
Sits outwith the concept of validity
Common, public standard of correct judicial decision – binding only if
accepted by the officials in question
Who are these officials? – the judges
LOOK AT LECTURE SLIDES – we have to use some form of measure
Judiciary
Internal – normative component
External – a regular pattern of conduct
These combine to product official behaviour that can be established by
empirical observation
Context – Hart was a Professor at Oxford therefore less critical of judiciary
Publicly ascertainable rules
Hart v Fuller – Fuller argued that law’s binding power came from morality
Hart v Dworkin – covered in next week
Judicial discretion
What about hard cases? Where the law does not provide a clear answer
Judges must work out the decision by reference to substantive, extra-legal
considerations which can be moral, political or according to the judge’s
own sense of justice
The decision of the judge is law because of the rule of recognition
Ronald Dworkin
Succeeded Hart as Professor of Jurisprudence at Oxford in 1969
Advances a theory of judicial interpretation
Rejects the idea that the law can be justified by power alone
Sits between natural law and positivism
Interpretative Theory
‘Legal claims are interpretative judgement and therefore combine backward and
forward looking elements; they interpret contemporary legal practice as an unfolding
narrative.’
Often called constructive interpretation, as the judge should construct a
theory of what the law is
Ongoing, unfolding narrative that has considered the past to help the
future
Judicial discretion
The judicial role is to give effect to the intention in parliament and to
interpret, apply and uphold the law as established by statute
A space of autonomy surrounded by a belt of restriction – doughnut
Judicial discretion means interpretation
Distinguishes between strong discretion (unfettered – Hart)
Hart v Dworkin = Dworkin argued against Hart’s conception that law was a system
of and for rules; his view was that there were also non-rule standards, i.e. policies
and principles
In 1949 the German CA held that the Nazi statute was ‘contrary to the sound
conscience and sense of justice of all decent human beings’
The grudge informer case – reporting people who opposed to the Nazi regime
A wife informed on her husband even though he was innocent, she used
the law to get him killed
Two options: either don’t punish or punish according to retrospective law
Hart: if we formulate our objection as an assertion that these evil things
are not law, this would seem to raise a whole host of philosophical issues
before it can be accepted
This is justice in the administration of the law, not justice of the law
Fuller: this thing is the product of a system so oblivious to the morality of
law that it is not entitled to be called a law – legal morality cannot live
when it is severed from a striving toward justice and decency
Best way of thinking about this debate: concerns the clash of two very
different models of law – should law be understood to consist in those
standards socially designated as authoritative? Or is it constituted by those
standards morally designated as authoritative?
o Are the ultimate determinants of law social facts alone or moral
facts as well?
A recap of Dworkin
Rights are trumps
Constructive interpretation of judges
‘hole in the doughnut’
Law as integrity
Critique – see PowerPoint slides – Dworkin wrongly defines Hart’s ideas then
elaborates on them
Both Hart and Dworkin project their ideas onto each other. They should be thought of
as being two particular perspectives on the law
Natural Rights
Origin of natural rights could refer to:
1. The right we have by virtue of our nature as human beings
2. The rights we have in the ‘state of nature’
3. The rights conferred upon us by the law of nature
Locke: citizens possess natural rights which they cannot renounce or alienate, and
which cannot be expunged by anyone
State of nature = free and equal, possession of natural rights in property
Purpose of the government = protection of national freedoms
Locke’s expression of natural rights is one of ‘life, liberty and estate’
Growth of rights
Civil: basic requirement of individual freedom e.g. freedom of expression
Political: equal participation in the exercise of political power e.g. suffrage
Social: protection of social rights e.g. minimum level of subsistence, housing,
education
Proliferation of rights
3 elements recognised by T.H. Marshall [1992] in terms of citizenship
Liberties converted into rights
Concessions into entitlements/freedom
Governmental powers into duties
Politicisation of Rights
Loughlin says that the rights movement can be understood as an evolutionary
process of:
Generalisation: more claims expressed as rights
Institutionalisation: claims recognised in positive law
Collectivism: extension from individuals to social groups
Internalisation: recognition and enforcement from outwith the State
Institutionalisation
Post war legal recognition of rights
UNDR 1948
ECHR 1950
International Bill of Rights 1976
Rights idealism
The main difficulty with natural rights doctrine is that it is inherently idealistic
Objective foundations for a rhetorical claim:
Religious – intentions of a divine creator
Secular - ???
Since fundamental rights are invoked for the purpose of achieving certain
values, they serve mainly as an appeal to those values – Loughlin
Are claims to natural, inalienable or fundamental rights then either
tautological or fictional?
Context – noticing and evaluating the influences on these thinkers will give you a
greater insight into what motivated them and thus what they eventually argued. Will
allow you to analyse their points of view.
OSCOLA Referencing
There is no right answer to the essay question. You can argue whatever you like
dependent on the relevant syllabus materials and any additional sources you select.
Make the essay stand out! Engage with the material – make it stand out from the
other 300.
Structure – clarity and analysis – do not waffle and be arty with words. Be concise!
Timeframe
Prepare a timetable and place in other work, dissertation prep etc.
Check you have all of the booklets and resources
Discuss the topic with others
Bentham
The greatest happiness for the greatest number
Morality judged by happiness maximisation
Everyone counts: equality is attractive
Gives power to the majority
Stops the powerful minority from holding power
Not good for protecting a small minority against a powerful minority
Everyone’s needs cannot be met
Consequentialism
Normative properties depend on consequences
Check in advance the effects of the act
Consequences can be good or bed, then we choose
Morally right answer depends on maximisation
No ‘proper’ behaviour
Presents the answer ‘what is the harm in doing this?’
You can do whatever you want as long as your actions are not harmful to
others
Problems
Preference satisfaction
Increasing utility = satisfying preferences
Everyone’s preferences count equally
Count equality vs. equal weight
All preferences or informed preferences? Some would lead us to misery or
death
o Speed cameras – some people prefer no speed limits but this would
increase road accidents/deaths – this is not an informed preference
People’s preferences change not only over time but as a matter of
psychology – protective mechanism – when we fail at something we do not
want it anymore
Aesop’s sour grapes – the fox couldn’t reach the grapes therefore she
changed her attitude towards them
How to maximise?
Society as a giant calculus
Individuals as calculators of pleasure – we spend our time calculating the
effects on overall utility of the various actions available to us
Special relationships: friends and family
What if utility (largest preference) runs counter to our family/friends?
After calling out a plumber who charges £200 for one hour’s work. Should you pay
him?
Utilitarian terms: you should pay him as it conserves a basic principle of
how we do business
It leads a more efficient system – if people know they will be paid for their
work then we are happier
What if you decide to donate that £200 to a charity?
Would benefit more people than just one person
However this is not a social norm
We pay the plumber because we feel like we have to pay the plumber – an
independent moral judgement because we made an implicit promise
Bentham
Rights are ‘nonsense upon stilts’
No natural or moral rights
Legal rights can exist
Only lack of happiness/pleasure could justify protection of human rights
What about codification of rights? E.g. French Declaration – rights existed
before this document and fuelled the revolution that ended in the creation
of this document
Rule Utilitarianism
Welfare maximisation
Principle applies to rules, not individuals
Applies only to how the state behaves towards us
Cost-benefit analysis – what are the consequences? Are they going to be
beneficial? Vs. the cost of this project
o This becomes problematic when it is applied to rights and who
should enjoy them
Political rather than comprehensive conception of utilitarianism
Summary
Utility and human rights
What if the majority are happier when some rights are violated/do not
exist?
Welfare calculations
Preferences – how do we measure these?
Majoritarian utilitarianism
Protects the majority, but given illegitimate preferences, does not protect
minorities
Seminar Discussion
Questions
1. What is the main principle of classic utilitarianism? Do you find it attractive?
The main principle of utilitarianism is the greatest happiness for the greatest number
of people. Utilitarianism gives every member of society an equal say in their
preferences, giving it an egalitarian quality; everyone’s preferences are the same
and there is no discrimination. Therefore, what the majority of the population desire,
this should be acted upon. This theory is attractive in principle, but not in practice.
Even though this secures the majority opinion, this opinion may not always be the
most morally accurate one. For example, in Nazi Germany, (in theory) the majority of
the population wanted the displacement or extermination of the Jews, yet this did not
make it acceptable.
Deontology – sometimes called rule based or duty based ethics, this focuses on the
rightness or wrongness of actions themselves, opposed to the consequences. It
means that some actions are simply immoral, regardless of their consequences.
I think that for a state, consequentialism is the most effective theory of moral
decision making. It would allow the most positive results to be achieved. However,
these consequences may come about from immoral actions. If someone belonged to
a small and unpopular minority group, deontological decision making would most
benefit them. Even though the state may save huge amounts of money cutting
funding to asylum seekers, deontological decision making would prohibit this, since
the action would be immoral.
For hedonists, yes. However, for many people, pleasure is one of many of the most
important things in life. If we could be hooked up to a machine that produced the
sensation of pleasure permanently, even though we were aware this pleasure was
fake, most people would not choose this. The reason why is because it is not just the
feeling of pleasure that is important. It is the act of earning the pleasure, and
experiencing it for ourselves. It is not the experience of being in love that matters, it
is simply being in love.
Utilitarianism is attractive for giving power to the majority and taking it away from the
powerful minority, as Bentham originally posed during his law reforms. On the other
hand, utilitarianism assumes that happiness is the ultimate goal. This is not always
the case, as many people choose options in life that require hard work and sacrifices
and may not be initially pleasant, since they find a reward in this.
Cost-benefit analysis: in the past, there have been cases where the value of having
to replace a car was more expensive than the people dying claiming insurance. This
was a clear example on where people believed that life could be valued at a
monetary measurement. This is not always the case. Half a million pounds for the
death of a loved one may seem a lot, but this would be traded instantly if the
individual was alive. It is not morally right to value something so precious as life in
simple monetary terms. This defeats the whole notion of morality.
The UNDR
Preamble introduces equal inherent dignity of all humans
Birthplace of modern human rights movement
Orthodox conception of human rights – locates rights in humanity
“Basic human equality is an ethical idea intermediate between the abstract notion of
inherent moral considerability and specific egalitarian principles of social relations,
political participation or economic distribution.”
We believe every life has objective value, and this is why we have to be treated with
equal concern by the state.
Led Aristotle to claim that certain people who had less rational capabilities
(women, slaves, non-citizens, non-Greeks) had less value because they
were not Athenian
Empirically false
Presents a ‘threshold’ or ‘scope’ problem – is there a threshold that has to
be reached for people to enjoy rights? Where do we put this threshold if
one exists?
Scope
If we create a scope based on rational capacity – does everyone have rights?
Everyone with psychological capabilities?
The irreversibly comatose?
Foetuses or new born infants?
Those who never possessed psychological capabilities?
The Decretists
Humanism of the 12th century
Revival of legal science in the West
Recovery of the entire corpus of Roman law, codification of canon law
Efforts to combine Roman and canon law
Realised that both sources had an emphasis on the individual
Emergence of rights such as ‘the right of the poor to the necessities of life’
Paradoxical as one of the first natural rights is so widely disregarded today
The Evolution
Medieval thinkers
Spanish neoscholastics
European conquest of America and the question of universality
Enlightenment
Hobbes, Locke and Kant
Moral rights pre-existed all of this, however these periods of history developed them.
It is only in modern times that human rights have been codified and began to be
recognised by everyone.
The (r)evolution
Idea of universal rights inspired American and French revolutions
Period of stagnation followed
Discounted as non-universalistic, nonsense
After WW2
Revival of the doctrine
Human rights label created
UNDR – response to all atrocities
National constitutions – IHRL
Numerous international, regional and domestic human rights institutions
Human Rights
Protection of personal sovereignty from the moralistic preferences of the
majority
If inviolability is valuable in itself, do consequences matter?
Further notes
Instrumental rights
Describe rights as instruments for achieving an optimal distribution of
advantages
Rights must generate good consequences – how do we define this? Weak
v strong rights?
How can we measure empirically how rights would produce such
consequences?
Questions
1.What is a moral right and how is it related to the idea of a duty or obligation?
If rights were not institutionalised and structures did not exist to enforce them,
promote them and provide sanctions, then rights would not be complied with on a
practical level. On a moral level, moral rights exist independently of their legal
recognition and pre-existed any codification. Corresponding duties that moral rights
generate are being generated autonomously and do not depend on their recognition.
If a dictator decides to torture his political enemies, he is still violating a human right,
even if the national legislation does not give effect to human rights.
Interest based theory of rights – protects only fundamental interests such as right to
life, freedom of expression, freedom from torture etc. We know they are fundamental
because there is a general consensus and an element of objectivity. When other’s
rights are deemed more important than ours, we may give way to our right. We
assign weight to our rights by objectivity, balancing out rights against each other.
Some rights are connected to human dignity which is the most important right to be
protected. Individual autonomy is the master value.
Criticism: how do we empirically measure good consequences?
Status based theory of rights – protects human status. There are some rights that
are so fundamental they cannot be violated: each person has a right to ‘inviolability’.
Stemming from natural law, each person has access through reasoning to the
fundamental rights, and an inherent sense of morality.
Criticism: what about if an individual’s rights are violated for the greater good? E.g.
the murder of a dictator to save citizens?
Interest based accounts of rights take into account the interaction of rights between
individuals, for example freedom of expression vs. freedom from libel/slander. The
way this theory deals with the rights being traded off is the one which offers the best
utility will be the winner.
5.What is the relationship between moral rights and the common good?
Interest based – would analyse the limitation to see if it violates the right through the
form of balancing. Example: full face veil ban - balance between freedom of
expression and collective interest to safety in the public space.
Reason-blocking theory of rights – would analyse a limitation but would not balance
it against interests, but would look behind the limitation to try and find certain
impermissible state actions.
Both accept that human rights can be limited for certain reasons, however status
based can never be limited because of the moralistic preferences of society.
These characteristics are questioned by the political concept of human rights and the
breaking of the link with the natural rights tradition.
1ST CRITICISM
Criticism of claim that moral rights are possessed by all human beings:
Lack of fit with contemporary human rights practice
Trans-historically applicable human rights?
Same rights attributable to all throughout history?
Seems to be ahistorical and insinuates that people regardless of historical
period and society were enjoying a broad set of rights
People did not share the concept of rights until recently
Examples: right to a fair trial – did not exist until a century ago (specific
court procedures, juries etc.)
Right to adequate standard of living – did not exist until 50 years ago
Right for women to vote – did not exist until a century ago
human rights in practice and other moral rights that we enjoy by virtue of
our humanity
E.g. the right not to be personally betrayed is not included in UDHR
Promises create a moral duty and entitlement but this isn’t a right
Political rights come in handy here by distinguishing between rights and
moral considerations based on their functions
We can pursue human rights violations through courts and this is not
something we cannot do with other moral rights
Raz: orthodox theories of rights misunderstand the difference between value and
human rights (the difference between believing something is valuable to me vs.
having a right to that). For most people, our children and their welfare is something
extremely valuable and since it transcends all cultures it has an element of
objectivity. Nevertheless, we cannot sue the state if our children get into trouble or
make detrimental choices in their lives. Their wellbeing is extremely valuable yet
there is no human right to safeguard their wellbeing.
Political Functions
Human rights are those rights that can limit the sovereignty of the state. A violation of
human rights gives a legitimate reason for other states to intervene. This political
function of human rights is what defines moral rights from human rights.
Under-inclusivity
How do we tackle this problem? States do not usually intervene when other states
violate important rights (e.g. discrimination against sexuality/gender) but not
fundamental rights.
Expand the account of intervention such as economic sanctions, public
criticisms, public pressure, and not just military action
Beitz: human rights are norms whose violation generates a reason for ‘international
concern’ – contrasting view: intervention is one manifestation of such concern
2nd CRITICISM
Criticism of claim that rights are discovered by natural or ordinary moral reasoning
Parochialism
Reflect values that other cultures, states and traditions do not share
Grotius: natural rights enable self-interested and social human beings to
live together
Kant: natural rights possess an a priori basis independent of substantive
judgements about human ends or the means of achieving them. Natural
rights are universal because they are independent of substantive ideas.
Both Kant and Grotius agree that no appeal to the divine is needed to
grasp human rights
Rawls – claim to objective justification is parochial
o Disagreement about the appropriate standards of justification
o Public reason – everyone must be able to understand these rights
and this is what we should ground rights in
o Despite disagreement we can formulate human rights in a way that
is understood by everyone
o Example: we cannot ground human rights in religion given the
plurality of religion around the world
Questions
1. What is the nature of human rights?
Natural rights: rights are endowed upon humans and can be accessed through
reason.
2. Are human rights aptly understood as universal moral rights possessed by all
human beings simply in virtue of their humanity?
Orthodox view of human rights – this is the view that moral rights are
possessed by all human beings in virtue of their humanity.
There is now a break with the natural rights tradition.
This lacks the contemporary human rights perspective – as human rights
have not been found and applied universally and throughout history.
Relatively new human rights e.g. right to a fair trial, arguably invented
therefore cannot have been possessed throughout all of history
3. Does it belong to the nature of human rights that they perform some specific
political role, such as operating as benchmarks for legitimacy or triggers for
intervention?
5. Can human rights be defended against the claim that they are merely ‘Western’
constructs?
Human rights are grounded in some independent interests for example the
right to freedom of speech, no torture, imprisonment etc.
Even though these rights are individualistic they apply to every individual
The facts:
The applicant cannot wear her full-face veil
Gender equality
Public safety
Violation of rights under Articles 8, 9, 10 & 14 ECHR
Four NGOs and the University of Ghent intervened in support of the applicant
French Arguments
Public safety, protection of the rights and freedoms of others, gender equality and
‘living together’
Proportionality
Arslan v Turkey
Balancing between individual rights and the rights of others
Small number of women affected
Islamaphobia
Social exclusion
Criminal sanctions
Restriction of pluralism
Subsidiarity
Wide margin of appreciation
The role of the ECtHR in cases where the balance has been struck ‘by
means of a democratic process’
Dissenting Opinion
Living together – broad, vague
Disagreement regarding consensus in Europe
Social exclusion of women
Cumulative effect of penalties
CONSIDER:
Questions
1. Do we have a right to wear religious symbols in public? Which are the limitations
of that right?
We have a right to manifest one’s religion or belief and this arguably includes the
right to wear religious symbols in public.
This shall be limited when it infringes upon the interests of public safety, protection of
public order, health or morals, or the protection of the rights and freedoms of others.
2.With reference to S.A.S. v France, outline the rationale of the majority’s judgment.
Do you agree? Should a government have the power to coercively form our common
moral space?
Judgment: ban proportionate in the sense that it restricted right of ‘living together’ –
recognised that the face plays an important role in social interaction. This is unusual
as this is not expressly mentioned in the ECHR
4. Would the conflict between individual rights and other considerations, such as the
idea of ‘living together’ in S.A.S., change under reason-blocking theories of rights?
(Tip: see pp. 93-95 in Nagel, ‘Personal Rights and Public Space’ and pp. 328-331 in
Dworkin, Justice for Hedgehogs. According to reason-blocking theories, rights are
best understood as constraints on the kinds of reasons that governments may
legitimately act upon)
5. What is the relationship between moral rights and the common good?
ECtHR – 3 arguments
1. Speech undermining the spirit of tolerance
2. Gratuitously offensive
3. Public order concerns
Otto-Preminger v Austria
Council in Heaven film
Film classified and plot circulated in advance
Church called for pre-emptive seizure and forfeiture of film
Criminal offence under Austrian law
EctHR: law pursues a legitimate aim
‘The right not to be insulted in their religious feelings’
Was limitation also necessary?
Offensive v gratuitously offensive speech
Gratuitously offensive may be restricted
Margin of appreciation
Wingrove v UK
Visions of ecstasy film
Not on public display – limited audience
Political speech differs from religiously offensive expression
Wide margin of appreciation
Intimate personal convictions within the sphere of morals
No violation of Art 10
I.A. v Turkey
Book criticising Islam
Turkey: majority’s religious beliefs may justify restrictions on profane
speech
ECtHR: book contained abusive attack
Pressing social need
Low fine imposed
Social Validation
Content based – official condemnation of certain ways of life
Portrayal and validation through free expression
The symbolism of restrictions
1. Outline the facts and the rationale of the majority’s judgment in Otto-Preminger v
Austria, Wingrove v United Kingdom and I.A. v Turkey. Do you agree?
4. Does the right to freedom of religion include a right not to be offended in our
religious beliefs? How can we discover the scope of religious freedom?
5. Does the right to freedom of expression include a right to ridicule deeply held
beliefs of other people? Would your answer change were the beliefs in question
religious in nature?
7. Would the conflict between the right to freedom of expression and the right to
freedom of religion change under reason-blocking theories of rights?
The contingency of law; relationship between state law and modernity and
particularly capitalism and the west
What is law?
No accepted definition
Benjamin – all violence is either law-making or law preserving
Austin – command of a sovereign?
Holmes – decisions of the courts?
Dworkin – an interpretive concept to achieve justice?
Fuller – moral idea/natural law?
Derrida, Cover – all states originate in violence – law amounts to a vicious
circle of violence which determines what violence is justifiable
Pre-modern law
Reproduced a moral order and traditional community which was
hierarchical and status based
Sovereignty – several sources of law – 12th century England had many
civil law courts, with overlapping jurisdictions
Little conception of either society or state in the modern sense
Sovereign authority equally claimed by the Church
No conception of private property
New Thinking
Protestant Reformation – doctrine of personal grace so each person is
person is responsible to coming to God themselves
Emergence of key theories of modern state law – not wisdom but authority
that makes law
Enlightenment
Move away from religious authority to empiricism and reason as the
primary source of authority
Locke – citizenship and private property – move from status to contract
Rule of law based on systematic, neutral, apolitical and universal body of
norms which represents a rule by rational principles rather than men
Continuing Developments
Further fracturing of society
Idea of law as regulatory force
Use of law by oppressed groups to claim rights – welfare law
Gradual democratisation of both citizenship and law
Underlines the fact that law is a dynamic, contingent force, intimately
connected to political developments
Key Claims
Abstract legal individual is at the centre of liberal legal thought
Equality = a deliberate official blindness to variety
Dynamism is a condition of modernity
The last 30 years has seen the proliferation of normative orders and
theories of legal pluralism
This week
The causes of failure to establish law as an objective framework of rational
principles
Other developments which have changed state law’s power
Definitions of legal pluralism
Q1. What were some of the causes of ‘failure’ to establish ‘law as an objective
framework of rational principles?
Different cultures and religions
A lot of law is subjective in nature (Ghosh test in criminal law)
Reasonable man – decided by a judge – how do we define this?
The law has to advance to reflect the society it is built upon
o Rape did not used to be a crime
Creation of the liberal legal subject – hard to define
Indeterminacy of law
Ideas based on universalism and metanarratives seen as irrelevant with
the fragmentation of identity and development of postmodernism
o The world is much too complex
o Identities are not simple
Law as fictional and ideological and a way of creating centralised power –
Griffiths
Law’s claim to be a clear coherent system is vital for the rule of law
Rule of law tied to capitalism – not neutral but the tool of powerful
economic interests
Feminist Critiques
Formalism and claimed autonomy is a device to depersonalise power
Rule of law is counter to women’s material and existential circumstances
of connectedness and intimacy – its claimed impartiality is unattainable but
also undesirable
Q2. In addition to the philosophical difficulties state law has encountered, the
primacy of state law has also weakened in recent decades of a range of socio-
economic and political developments; describe some of these
WW2 showed that the westphalian state system was broken
Supranational organisations – EU
International movement of peoples – produces heterogenous civil society
Changing nature of citizenship
Weakening of European industrial power – shifts in global geopolitics
Globalisation and the growth of corporate and transnational power
Internal causes
Neoliberalism becomes dominant
States retreat from social citizenship – ‘night watchman state’
Privatisation – growing socio-economic inequalities
Philosophical challenges to ideas of universality and to legal monism
States difficult to govern – growth of crime
Erosion of access to justice
Empirical Fact
Legal pluralism is the fact. Legal centralism is an ideal, a myth, a claim,
and illusion. (Griffiths, 1986)
State law constantly interacting with other normative orders
Situation in former colonies where the law of colonised peoples subsists
alongside the official state law (Bolivia)
Q4. Ehrlich spoke of living law. What did he mean by this expression?
How people order their everyday life
Each community have their own practices (Austo-Hungarian empire) –
context in which Ehrlich grew up in
Effectiveness of state law depends on its congruence with living law – i.e.
having meaningful social rules
Gurvitch
Simultaneous manifestations of law in various forms and at various levels
of social reality
At the deepest level exists the collective mind which is the sphere of
spontaneously generated shared values, norms and world values
Social law is generated through social interactions
Gierke
Community = alternative source of law
Law is the product of social groups
Law associations have a reality of their own and the state recognises them
Q5. How does Griffiths distinguish between different types of pluralism and
what do his categories mean?
Weak legal pluralism – classic ‘messy compromise that the ideology of
legal centralism feels itself obliged to make with recalcitrant social reality’
Strong legal pluralism – sociological ‘a situation where not all law is state
law nor administered by a single set of state institutions’
Weak sense – a legal system is pluralistic when either the sovereign commands, or
the rule of recognition validates, different bodies of law
Weak because it is still be based on the standard system of law
This opinion is held by staunch legal pluralists as they do not see
normative orders as the best way to govern
Normative order may be coherent, but could be an oppressive regime
(Nazi law) – must consider the social context that produces the law
Q6. Pound: ‘law in action and law in books’ – what did he mean?
Challenged the orthodox conceptualisations of law
Myth of legal formalism
Doctrinal law (law in books) differed from the way in which we practice law
Contemporary theorists
1. Empiricist/positivist – concerned with normative order
2. Postmodern/critical – tries to locate the legal in all those forms of regulation
Legal anthropology
Identity politics/multi-culturalism
Globalisation
Fragmentation of society – value pluralism
Western societies based on reason and were advanced, therefore most non-
Western states were viewed as occupying a lower level of civilisation. These views
were pivotal in justifying European colonialism as law was seen as one of the
greatest gifts that could ‘civilise’ these societies.
No law = no reason. Weber – law helped create capitalism; created rules and private
property
‘The land belonging to no one’ or ‘no man’s land’ - territory that has never been
subject to the sovereignty of any state. Outside power can therefore establish power
there. Justified the settlement of occupied land – liberation of property from all ties
and responsibilities. Locke – unoccupied land = negative commons.
As such, ever person had an equal right to use such land. Indigenous people were
deemed incapable of self-government since they had no concept of private property
= effectively non-people who could and should be cleared out the way. This view
was reinforced by later theorists who said that the indigenous were ‘not ready for self
government.
What additions to this doctrine or Terra Nullis were invoked in the Australian
Aboriginal situation?
Aboriginal people were seen as ‘so low’ on the scale that unimaginable
measures were taken against them, including military campaigns to kill
them.
Elements of social Darwinism; they were viewed as not fully evolved.
They were also ruled to be totally ignorant of British legal proceedings and
could not be legally tried.
Key elements of superiority and justification. A lot of these views are still present in
Australia today. The same developments that produce legal pluralism such as the
general radicalism from the 1960s onwards, identity politics and human rights still
take place in Australia. These produce new views including the re-reading of
Australian history which exposes the violence, racism and genocide
1. Post-colonial legal pluralism – legal anthropologists show that there was law
before colonisation.
2. State legal pluralism – ideology of unitary legal system is wrong, there are lots of
other sources on law.
3. Interlegality – the state is not the only source of normative and legal regulations
Sovereign authority was directly translated and communicated through state law
which was differentiated from politics and religion.
Legal sovereignty was simply assumed by most lawyers to be a fact and English
common law was believed to be a superior legal system.
Legal education was strictly black letter law and dominated by analytical positivist
jurisprudence. The legal profession was small and homogenous.
Multiculturalism
Multi-cultural societies are concerned with how the nation state should manage the
racial and religious differences that pervade Britain. Secularism is a key aspect of
Enlightenment political reason, yet some cultures that settle here are deeply
religious. However, multiculturalism also derives from enlightenment thought with the
philosophy of tolerance.
In some cases, the group right directly restricts the freedom of non-members in order
to protect the minority group’s culture (restriction of English in Quebec)
A commoditised version which celebrates mobility and diversity and has been
promoted by international organisations. Grounded in consumer culture, where
people have the right to market themselves as they wish. Works as a technique of
governance that integrates minority products into the market. Unconcerned with
politics yet has allowed a degree of freedom to preserve their own normative order to
manage their own communities.
However, they are not granted ultimate legal authority and this is rather a respect for
norms. On what basis should the state intervene in family/community norms?
Kymlicka advocates a form of multiculturalism tied to an ethic or social membership.
This all depends on how we see state law and whether it is the binding force of
society.
Three ways of defining legal pluralism, theory, fact and political project.
THEORY: rejection of black letter law and focus on the customs of a particular
community, creating fluid domains for action known as interlegality (Santos)
Erlich – living law
Anthropologists’ view of pre-modern normative orders as law
What were the causes of the emergence and interest in legal pluralism?
Collapse of Westphalian state system and geopolitical change
colonisation, globalisation.
New political movements that challenged the neutrality of state law:
neoliberalism.
New intellectual movements: postmodernism, decline in meta narrative
GLOBALISATION
Technological advances
Fall of the communist bloc
Dominance of neo-liberal theory
Global trade, capital and investment movements
Migration
Dissemination of knowledge
Buchanan: this has forced the nation state to evolve but is a threat to national
sovereignty.
Nation state – capacity to tax: this is slowly being eroded by international companies
who are based all over the world and who avoid tax.
The nation state taken as starting point for a traditional analysis of society and law.
Examples:
Trade: WTO, IMF
Health and sanitation: WHO, codex alementaruis
Global security: EU, UN, NATO
Informality: global norms are soft, they do not create obligations for states
or private actors.
Private ordering/Lex Mercatoria: these norms are not subject to judicial
enforcement, are highly diffused and informal (no separation of powers)
Two sides of globalisation: the globalisation of the elite and grass roots
globalisation.
SUPRANATIONALISM
Conclusion: a new legal phenomenon that challenges the idea of state law but also
works alongside it. One of heterarchy (MacCormick)
The ‘core question’ posed by Matej Avbelj is: ‘how to approach the challenges
that EU legal pluralism […] poses for the role that law is expected to play in the
European Union?’
First of all, EU legal pluralism does not operate on the micro level by putting forward
examples of numerous other private actors that in different informal, semi-formal and
formal environments allegedly also create law. Rather, it works on the macro level by
contending that there is another structure, i.e. a supranational legal order, which
claims to be autonomous, on an equal footing with the state, or even trumping it by
asserting equally plausible ultimate legal authority.
DOUGLAS-SCOTT
1) General Position
Agrees that LP describes the current legal state of affairs.
However, this situation is unstable, uncertain and disordered.
Cites Hart’s view – a multiplicity of rules of recognition mean the legal
system could dissolve.
3) Other critiques
There are no overarching meta-principles to organise fragmented legal
orders, unlike state law.
LP brings increased risks of accountability and legitimacy of law.
o Privatisation of justice: the powerful can engage in forum shopping
o Multinational companies can move around the globe in search of
low cost labour which is unprotected by state law, and to evade
tax
There is nothing ethically superior about LP – it doesn’t encourage an
internal morality of law.
To summarise, Douglas Scott believes that legal pluralism describes the current
state of legal affairs. However, this situation is unstable: (Hart) a multiplicity of rules
of recognition can cause the law to dissolve. Her main critique is the lack of clarity
within the concept, with LP being used as an umbrella term which is incoherent and
could describe a number of social interactions. Her other critiques include a lack of
accountability, and no overarching principles to join LP. She uses the EU as an
example of illustrating the strengths and weaknesses of LP, warning of the
deadening of culture but also international justice being eroded if there was an
alternative, it could damage international justice. She also lists some advantages of
state law, such as neutrality, objectivity, equality before the law and the capability of
state law.
TAMANAHA
1) General Position
There are 2 types of problems with legal pluralism:
ANALYTICAL
Plurality of legal pluralism: there is no agreement on the underlying
concept of law
Trivialization of law: where do we stop speaking of law and start
describing social life?
INSTRUMENTAL
Without an agreement on the fundamental concepts there can be no data
gathering or observation.
SAGY
1) General Position
Uses the example of a Ghanaian camp full of refugees who are pushed
to solve their legal problems privately.
Unwillingness on the part of authorities to monitor human rights
violations.
Indicates that there is an inter-relationship between law and justice and
the nature of society.
Sagy is in favour of state/positive law. She uses the example of Ghanian refugee
camps and the official’s reluctance to deal with human rights violations. She explains
the relationship between state law and justice and the nature of society. Formal law
has a better chance of protecting minority rights and can help form a more just
society. If the state itself is immoral, then so will the law be.
Ultimately, the sort of law you have is dependent on and intimately related to
the sort of society in which it is embedded.
Does a strong legal pluralism approach give us an idea of ‘law’ that aspires to
embody universal, democratic and inclusive criteria through which to critique political
power?