Thursday, November 29, 2012

ESSAY ON CRITICAL RACE THEORY


ESSAY ON CRITICAL RACE THEORY

INTRODUCTION: AMERICAN CRITICAL RACE THEORY: THE HISTORICAL PERSPECTIVE

Critical Race Theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community. One of the foremost American CRT said black peoples struggle is as old as the nation, making race and racism essential to the definition of America as a nation. The very recognition of slavery was a compromise that allowed the foundation of American Constitutional government (Bell 1995), the drafting of the Independence Constitution in 1787 to include the preservation of slavery to Hayes-Tilden Compromise of 1877 (between Republicans and Democrats to elect Hayes in return to ending reconstruction in the south was instituted to help improve the position of newly emancipated black slaves and the end of military rule in the South with allow white racist to act unchecked). From end of civil war until present a pattern has shown that any black advance is effectively crushed by white backlash and historical racism means that black rights will always be compromised to other economic and social interests. Equality is stated in the law, but economic and social dispossession still suffered renders these legal rights symbolic. Litigation engaged by National Association for the Advancement of Colored People (NAACP) is accused of becoming too fixated with symbolic advances without any serious consideration to inequitable distribution of social and economic powers.  Bell wants people to understand that American is inherently racists. The failure of previous struggles rests upon a fundamental misunderstanding of the nature of law and in the call for racial realism that there is an alignment of the struggle for a new thinking about law that repeat the gestures of the legal realists against the jurisprudence of the old order. Judges political views have immense importance in the outcome of cases as there is no such thing as neutral principle. In Regents of the University of California v Bakke  (court in deciding affirmative action that would allow black candidates to enter the University of California) employ a narrow definition of equality which ignored the social and economic cause of advantages and held that no white students could be refused entrance to give preference to black candidates.

LAW AND RACE DISCRIMINATION

One critical Scholar said discrimination is positional i.e. describes the inter-relating and structured disadvantages in education, work, housing, health care.  The law tends to be blind to such reality. Litigation on civil liberties tends to re-create this problem in terms of an act of violation of anti-discrimination principles that can be remedied, it neutralizes the inappropriate conduct of the perpetrator. Litigating civil liberties issues has the effect to remove any sense of collective responsibility for discrimination. Would it be possible for law to move to an appreciation of ‘positional’ nature of discrimination? Such a shift would be challenging to the legal construction and responsibility as individual fault but risk antagonizing a vast majority reluctant or unwilling to perceive their own complicity in discrimination. Anti-discrimination law has attempted to find ways of breaking out of its formal restraints while trying to display adherence to the form of the law.

RACE, RACISM AND IDEOLOGY

CRT borrows from CLS when it describes anti-discrimination law but also offers a critique of the theories of ideologies CLS scholars put forward.  It examines the differences between ideology and theories.  The work of Gabel and Kennedy takes the notion that law is an ideological distortion of the world.  Ideas/practices of laws have to be examined to see how they interface with wider social, economic and political concerns.  CLS take was that legal reform can never transform social order because the law is already implicated. CLS use trashing that was meant  to reveal the problems that lay under the surface of the law but it completely ignore the role of race in its ideology. Frequent failure of anti-discrimination law was put to the perspective by the whites that they would lose out to black interest and they unite against these law. Ideology in this sense operates to create‘hegemony’ of interest.  For example the labour unions made up of immigrant white works excluded blacks. Civil liberty advances are re-inscripted at a cultural level as black failure to adapt to the supposed norms of white behavior hard work and discipline and demand for special treatment show the continued failure of black community to match up to social standards, hence their inferiority and the partisan one-sided nature of anti-discrimination law.  Though anti-discrimination law is compromise it cannot be abandoned because of its transformational potential.  Whatever their shortcomings, they have served to de-legitimise discrimination and this process is continuing.

CRITICAL RACE THEORY AND BRITISH RACISM

British CRT approached racism as historical problem.  The perception was not much the volume of black settlement but rather its character and effects, especially threat to legal institutions. Immigration is perceived as a threat to English constitutional values rather than opportunity to create different history, institutional response.  Law fails to create a legal notion of race of what is shared in common by communities of Brutishness.  This concept reflects the process of decolonization, the history of colonization that created the empire in the first place.

RACE, RACISM AND BRITISH LAW: A SHORT HISTORY

In the post-war period there was a consensus about the need to stem immigration. It started with           1962 Immigrants Act reducing immigration through issuing employment vouchers (for those link with Britain either through being born in the country or having a passport issued there). This indicates withdrawal from Empire and the Commonwealth British Nationality Act – obligations towards commonwealth citizens being eclipsed by Britain’s role in Europe.  British government was concerned about coloured but not white immigrants. There are tighter legislature for blacks than white. The second Commonwealth Immigrants Act 1968 created even tighter legal definition of British Nationality.  Settled coloured people and immigrants were turned to suspect communities.  Race relation Act 1965 did recognized the problem of discrimination.  The Race Relations Act was seen as the state acting on behalf of capitalists’ interests.  The thinking of the right-wing National Front or British National Party can be seen as the logical extension, rather than departure from, official government discourse on the need to police race. One of the reasons for the passage of 1968 Commonwealth Act was the need to restrict entrance into the country of Kenyans of Asian background. A similar concern was raised about Ugandan Asians, and they were allowed into the country because of the necessity to bear a historical burden. The logic works through into the 1971 Immigration Act with its separate spheres of nationality i.e. partials and non-partials and when it came into effect in 1972 virtually ended all primary immigration.  Despite the language of the 1976 Race Relations Act and developing case law, the operative terms of the law were racists in the most crude of senses. The 1981 British Nationality Act provides a further attempt to classify and control.  Definition of Nationality was divided into British Citizenship, British Dependent Territories Citizenship and British Overseas Citizenship. Linking immigration law with race relations legislations allows these themes to be pursues.

THE RACE RELATIONS ACTS

These takes three phases  1965 Act, expanded by 1968 Act and redefined by 1976 Act, more recently 2000 Act.  Similar themes run through the largely compromised act and leave racism largely intact.  1965 Act passed by Labour was limited measure, emphasis was in  conciliation and where this fail the matter is passed to AGF who may decide to litigate or not. Political exigencies  and wider ideological failure makes it an act without teeth.  In the face of evidence of widespread and violent racism, the first official acknowledgment was in 1981 in a report by Home Office Racial Attacks. The report described endemic institutionalized racism.  If this was a second argument in the foundation for the 1968 Act, it might indicate that lawmakers remained ignorant of the dynamics of the law. The Race Relations Board gives reason for extension and argues that the law gives support to those who do not wish to discriminate but who feel compelled to do so by public pressure.  The 1976 Act widen the scope of the anti-discrimination law, but there were glaring omission such as the exclusion of the police from the provisions of the Act.  The concept of indirect discrimination falls far short of any meaningful idea of institutional discrimination. 

The period since 1945 has seen substantial black and south Asian immigration into Britain, the response to which has been a rise in racism and the simultaneous passing of a series of law designed to reduce immigration (intent was plainly discriminatory).  The various Race Relations Act however have proved ineffective at removing indirect discrimination.

THE OFFICIAL INQUIRIES

Stephen Lawrence a young black student was murdered by a gang of racist white youths while waiting at a bus stop in Eltham, South East London on April 22, 1993.  No one was ever successfully prosecuted for this crime.  The report found no evidence that racism had significantly contributed to the failures to make arrests.  The report addressed complaints against individual officers.

a)    The Scarman Report 1981: This is the report into Brixton Disorder (Brixton an area of South London which has a relatively high black population).  Lord Scarman rejected the allegation that British institutions were systematically involved on racial discrimination as there is no conscious policy or public decision.  The explanation was of ‘unwitting’ racism. Occasional racism could be explained as immaturity of certain officers.  There was acknowledgment that the problem is wider and structural.

b)   The Lawrence Inquiry:  The limitation of racism was given in evidence of how both the political complaints authority and police appreciated  the issue of discrimination, described as a problem of rotten apples that let the side down.  Scarman tended to be used to support that racial discrimination was not a widespread problem in policing. There was a reluctance by the police to come to term with the need to police a multi-racial society, it is attached to a notion of unarmed and consensual policing .  Most worryingly the culture of policing does not encourage a critical self-understanding that would make prejudice easier to identify and to challenge. It addresses the failures of the Lawrence investigation, disparity in the numbers of black people stopped and searched by the police, under reporting of racial incidents.  The report Winning the Race shows that before 1998, not a single office had received training in racism awareness. The Lawrence inquiry shows that these attitudes are not longer acceptable.  In the word of Sir John Woodorck, the police remain a 19th century institution, a mechanism set up to protect the affluent from what the Victorians described as dangerous classes.

CRITICAL RACE THEORY AND POST-COLONIALISM

Colonialism is foreign rule. Its primary task was to make this rule effective, to assure its long duration, to end or neutralize opposition and to make possible European activity in the colony. It is economic exploitation between ruler and the ruled. It involves three phases,  attempts to exploit the resource and manpower of south America and Africa by European powers.  Direct appropriation began in the nineteenth century and later replaced by a treatise and trading arrangement and the third movement is that of more formal colonial rules of the later 1900s.  This latter phase was concluded and refined by the withdrawal from empire and the independence of the new African states.  The law was a legitimization of European rule and a site of struggle and resistance.  Nigeria is a country that will be brought into being by the law.  Chief Obafemi Awolowo, a Nigerian nationalist,  invoked constitutional values and linking them to his imagination of Nigeria, simultaneously paying homage to a common law tradition and accusing it of failing to live to its rhetoric.  The law was used a weapon for exploiting Nigeria resources and its people. Awolowo accuses the British of denying Nigeria legal and economic sovereignty.  The rule of law is also a feature of Awolowo’s vision.  The independent constitution was a flawed document.  The flaws must be seen alongside a great democratic potential and commitment to human rights and rule of law that are also a feature of Awolowo’s vision.

a)    Post colonialism and the philosophy of law:  There is an alliance between jurisprudence and colonialism.  Works like Henry Maine’s Ancient Law (2002) show clearly the sense in which jurisprudence was informed by the anthropological, philosophical and historical suppositions of the human sciences, especially the distinction between ‘savage’ and the ‘civilised’ can be glimpsed within the central line of legal thinking that runs from Hobbes to Hart.

 
b)   Law and the savage: This is the creation of Western, European identity created in opposition to all those features which it is not (Fitzpatrick).  Savage as an object of nature will act upon, civilize and reform made subject to reason’s of sovereign power. These presumption fed into the mindset responsible for the establishment and perpetuation of both slavery and the colonial project.  The colonized and exploited territories were seen as materials for the West (direct purchase of slave and colonial orders.  By 1800s the West had brought nearly a third of world into its sphere of exploitation. Opposition of law to savagery through foundations of jurisprudence. Thomas Hobbes ‘vision of the chaotic state of nature is informed by structuring separation of savage from organized and regulated culture.  Austin’s definition of laws as the command of the sovereign to which political inferiors owe habitual obedience is itself by Hobbes Leviathan. Desirability of law is protection from the disorder of savage nature.  A solitary savage could not be a social man because he would not  appreciate the necessity of communal living and hence government  The savage mind is ‘unfinished’ certain notions essential for society.  Austin makes a link between this savage stage of nature and the unruly and restless poor, who do not appreciate the need for law. Colonialism was fortified by sense of progress, of the need to civilize those who were savage.  The likes of Robert Knox or Herbert Spencer, who drew on Charles Darwin to create accounts of the superiority of the white race.  Fitzjames Stephens  wrote that English Law ‘is in fact the sum and substance of what we have to teach them.  It so to speak the gospel of the English, and it is a compulsory gospel which admits of no dissent and no disobedience.

TRACING THESE THEMES IN CONTEMPORARY JURISPRUDENCE

Hart wrote that unless law has a minimum of moral content, men as they are would have no reason obeying any voluntary rules. His vision of savage society as that which is unregulated, anarchic and merely awaits the coming of rational legal order.  Primitive law is inflexible and rigid and therefore impossible to change.

CONCLUSION

Critical Race Theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community. The very recognition of slavery in American Constitutional government (Bell 1995), the drafting of the independence constitution in 1787, Hayes-Tilden compromise of 1877  - ending reconstruction in the south.  Litigation engaged by National Association for the Advancement of Colored People (NAACP) is symbolic. In Regents of the University of California v Bakke  (court in deciding affirmative action that would allow black candidates to enter the University of California) employ a narrow definition of equality which ignored the social and economic cause of advantages and held that no white students could be refused entrance to give preference to black candidates. One critical scholar said discrimination is positional i.e. describes the inter-relating and structured disadvantages in education, work, housing, health ca

Conclusively, CRT can be seen as intellectual movement that studies the response of law to racism. CRT is interested more broadly in racism as a social and political problem.  Postcolonial jurisprudence seeks to create an account of the issue of race in legal philosophy and pointed out to the classical jurisprudential test with an eye on their silences or evasions of the issue of race. CRT grows out of concern with race and racism in the USA, the latter has been more focused on issues of European colonialism and its aftermath.

Tuesday, November 20, 2012

Undergraduate Law Subjects Revision Series

I am currently compiling a series which I will labelled "Undergraduate Law Subject Revision Series" as an e-book for the following LLB subjects:

1.   Criminal Law
2.   Common Law Reasoning & Institutions
3.   Elements of the Law Contract
4.   Public Law
5.   Law of Tort
6.   Law of Trusts
7.   Land Law
8.   Commercial Law
9.   EU Law
10. Public International Law
11. Company Law
12. Jurisprudence and Legal Theory

In future I will add additional subjects. The series are primarily designed for undergraduate LLB students of the University of London and for other undergraduate law students elsewhere who might be interested.

Access to the e-book will be based on request and interested users will pay a fee for the book.  The e-book will be available both on a subject-by-subject basis and topic-by-topic basis. 

If you are interested in these series send a mail to afuwape2001@yahoo.com and request for additional information.

Friday, November 16, 2012

NOTES ON INTRODUCTION JURISPRUDENCE

INTRODUCTION

The first question that naturally comes into the mind of a student studying jurisprudence for the first time would most likely be what is Jurisprudence? What I will attempt here is an overview of Jurisprudence. Jurisprudence consists of the study of the nature of law and its related ideas. It seeks to provide answers to questions such as What is definition? What is rule? What is law? What is morality? There are also interesting question of political morality which impinge on your life. Examples are: Should the law enforce conventional morality: what is the relationship between freedom and equality? There are also question of sociology and history. The questions are: What generally shaped the law in modern societies? What were the main claims of the feminists? What major trends influenced law schools in the United States in the twentieth century? What are the effects of law? What events can be shaped by the adoption of laws? Is law of any sort naturally repressive – or liberating?


Outstanding thinkers in jurisprudence include:

a) Austin and Bentham (founders of legal education at the University of London): both thought that law was about power
b) Hart  and Kelsen: thought that the power of law is imbibed with authority (non moral authority)’
c) Fuller and Dworkin: thought that law should be imbibed with moral authority.
d) Dworkin thought that judges only create law that is largely coherent with existing legal systems while Austin think they were deputy legislators
e) Marxists think the law only serves the interests of the powerful and the rich
f) The Critical Legal Scholars think that law schools provide a veneer of respectability over chaos and conflict
g) Some jurists believe that the courts enforce moral rights; others such as Bentham, think that this idea is ‘nonsense upon stilts

Kelsen, the distinguished constitutional lawyer and the 1000 pages of 1965 decision of the Rhodesian General Division court of Maidsimbamuto v Lardner-Burke portray a formidable line-up of jurists whose ideas were marshaled for and against the Rhodesian government’s case.

METHODOLOGY, ANALYSIS, THEORY AND THE IDEA OF DEFINITION

There are descriptive (describe things as they are), normative (how people ought to or should behave) theories.  Two important things to note (1) A theory can be descriptive and normative where a theory say “this is what the law is like” and “this is how we ought to regard law”.  (2) The subject matter of a descriptive theory can be normative e.g. we might describe law of English by saying “The law is (description) that people ought not (normativity) to obtain property by deception according to s.15 of the Theft Act 1968. Hart, Dworkin, Raz and Finnis are very sensitive to these differences others are not.

THEORY AND EVALUATION

Evaluation is important in theorizing. Example is the case of Trichologist, seller of hairpieces and baldness cure, and his son who is a skinhead. The father sees ability to grow hair as style thing, while the son sees it otherwise.  Some theorists like Hart believe there is a difference between characteristics of theory and its application while others like Raz take the view that the law is a concept that can be characterized that is independent of adopting any evaluative point of view.

HART’S METHODOLOGY

Hart spend much time debating the merit of choosing a ‘wide conception of law’ over a narrow conception of law’ this latter being natural law conception.  Hart also said that plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage.  Finally Hart says the main reason for identifying law independently of morality – his justification for legal positivism – is to preserve individual conscience from the demand of the state. Hart also said that it is a mistake to think that all questions can be solved with reference to the way we actually speak.

THE ‘INTERPRETIVE’ APPROACH

Concepts are accepted sets of ideas for example people uncontroversially accepted law has to do with rules, sanctions, courts and the likes.  Conception is a way at looking at concept for example Fuller’s conception of law is different from say Webber’s conception.  As a result of the dissatisfaction with the rigidity of the distinction between descriptive and normative developed methodology of ‘interpretive concept’ i.e. making the best of something that it can be and this idea is to be applied to law.  A student of jurisprudence should be able to say what he thinks of a theory.

IMPERATIVE OR COMMAND THEORIES OF LAW

Imperative or command theory of law is the earliest modern legal theory in England.  The theory is based on the conception of sovereignty derived from long traditions of political thought to which Thomas Hobbes as chief contributor '

THE BIRTH AND DEVELOPMENT OF SECULAR OR ‘POSITIVE’ THEORIES OF LAW: THE CASE OF THOMAS HOBBES

The work of Thomas Hobbes (1588-1679) constitutes the founding moment for the stream of political philosophy and political orientation we call liberalism. His work provides a transmission from the medieval intellectual synthesis wherein God was seen as the creator of life and God’s presence was seen in the organization of life flow to a more secular foundation for government.  His work Leviathan espoused the theory of legitimacy, or argument for we should give it obedience.  This theory was founded on the narrative or story of mankind’s nature that humans are supposed to see themselves as actors in the narrative and be led to agree that we would as natural creatures accept the need for a strong government as a social contract.  He presented self-assertion as a new social ethics.  The world thus becomes a site for individuals to follow their desires to plan their personal and social projects.  He gives a narrative of the ‘natural condition of mankind’ in way that any government would be better than the solitary, poor, nasty, brutal and short’ life he gave pre-social contract man.  Because of this, Hobbes was often regarded as the father of totalitarian government.  Feminists did not agree with his idea of solitary men and pointed out that humans do not begin as individuals - they began life as dependent babies and are made into individuals by socialization.

Hobbes target audience was member of the exiled Royal English Court in France.  It was during the period where religious instead of being a binding force had become a major source of conflict.  The thirty years of bitterest conflict Europe had seen then had wasted much of central Europe.  The Christian Spain finally defeated the last of Islamic Ottoman Empire.  That was also the time of great voyage of European discovery. Ship and military power of Europe allowed it to overwhelm cultures and peoples that could not withstand the onslaught, creating new social and territorial relation in Europe.  The treaty of Westphalia usually refer to as beginning the era of the nation state, had been
concluded in 1648

LEVIATHAN EXTRACT – THE INTRODUCTION

Nature (the art whereby God hath made and governs the world) is by the Art of man, as in many other things so it is also imitated that it can make an Artificial Animal. Life is a motion of limbs beginning with some part within. The three issues to describe the nature of the artificial man are '

(1) The matter thereof, and the Artificer, both which is man:   There is a saying that wisdom is acquired not by reading of books but of men.  Another saying is that ‘Nosce te ipsum, read thyself’
(2) Secondly, how and by what means covenants it is made; what are the right and just power of authority of a sovereign and what it is that preserve and dissolve
(3) What is a Christian Common-wealth
(4) What is the kingdom of darkness

OF THE NATURAL CONDITION OF MANKIND AS CONCERNING THEIR FELICITY

Nature has made men equal, though some may be stronger or quicker but all things taken together no man are considerable stronger than another.  As for the weakness of strength, the weakest has enough strength to kill the strongest either by secret machination or by confederacy of others in the same danger with him.  If one plants, sows, build or possess a convenient others may probably be expected to come prepared with forces to dispossess him.  Men have no pleasure in keeping company, where there is no power able to overawe them all.  In the nature of man, we find three principal cause of quarrel first: competition, secondly Diffidence, thirdly Glory.  The first makes man to invade for gain, the second for safety and the third for reputation.  The first uses Violence to make themselves masters of other men’s person, wives, children and chattel, the second to defend them and the third for trifles as a ward a smile difference opinion.  During the time when live without a common power to keep them all in awe, they are in condition which is called war and such war is of everyman against everyman.  There is no place for industry because the fruit is uncertain, no navigation, no knowledge of the face of earth, no art no commodity exchange, no letter, no society and which is worst of all, continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish and short.  When man embarks on journey, he arms himself, going to sleep, he locks his door, and even in his house he locks his chest.  The action of man is not sin till there is a law to forbid them nor can any law be made till they have agreed upon the person that shall make it.  In all time kings, person of sovereign authority because of their independence are continual jealousy and posture of gladiators, their weapons pointing and their gaze on other.  In this period nothing can be unjust. The motion of right and wrong, justice and injustice have there no place.

The key figure of sovereign who down the condition of human flourishing or individual pursuit of desire by a set of rules command which were laws.  Hobbes narrative of human condition and the need for man to set up common authority leads to the social contract which authorize sovereign.  Hobbes set up a sovereign, a mortal god out of our common agreeing to a social contract.

HOBBES: CONTEXT AND INFLUENCE

In Hobbes we have many of the basic characteristics of legal positivism.  Law is something posited by man and its does not flow from God’s creation. Therefore relationship between legal enactment and morality is not straightforward. Decisions needs not be moral.'

UNDERSTANDING HART’S ANALYSIS OF THE HUMAN CONDITION

In Plato’s Protagoras Plato include reference to a god (Zeus and a lesser god Hermes).  Men were devoured by wild beasts, they sought to protect themselves by coming together and building fortified cities, but when they began to gather in communities they could not help but injuring one another in their ignorance of the art of co-operative living. Zeus fearing their annihilation asked Hermes to impact to men quality of respect and sense of justice. 

Harts follows Protagoras and wrote that our basic concern is with social arrangement for continued existence not with those of suicidal club.  The interesting point are: (1) Hart brackets law with morality (2) Hart calls natural law the common content both of various positive moralities and various systems of law (3) Hart tell us there is common intention.

Hart’s minimum content of natural law are (1) Human vulnerability (man is capable of inflicting serious bodily injury and death (2) Limited resources (basis necessities of life are always in short supply makes inevitable some form of property institution together with rules for governing exchange (3) appropriate equality (every man is equal and make acceptable common system of mutual forbearance and compromises (4) Limited altruism (men are not evil, but neither are they angels) explains the necessity of restraints and at the same time their possibility) (5) Limited understanding and strength of will makes it is necessary to apply sanctions, including informal sanctions of moral disapproval an artificial incentive and conformity.

Minimum rules are restricted to rules governing matters of life and death, injury, property and contracts.  The rules are prohibitive and there is no positive inducement to act in virtuous way but only prohibition against wrongdoings. Furthermore, only primary rules are discussed and special circumstances, in which it may be permissible to destroy life, inflict bodily harm, deprive possession, break promise and things that are sometimes held to be morally justifiable.   The reasons for limitation are (1) only basic aim (survival) is considered so moral rules not connected with survival are not considered.  There are no sexual restraints in Harts list.  Hart considered promiscuous killing more serious than sexual promiscuity.

JEREMY BENTHAM

If Hobbes had argued the idea of legislative rationality – government using law to organize nature of society and structure of everyday interaction, Bentham assumed that this was possible and that it was the responsibility and duty of government.  Bentham was the son of a London attorney.  Bentham was reformer and differentiated the question of what the law was from what the law ‘ought to be’.  Bentham was a proponent of a total institution called the panoptical.  This was to be an institution of perfect control and visibility.  The inmate was to be under the constant gaze of the overseer.  To many this was the perfect emblem of the dangers of the modernists’ obsession with legislating, defining, structuring, segregating, classifying and recording.  That the modern city of reason would end in a living prison would certainly not have been Bentham desire, but the reality of the holocaust and the great imprisonment of the Soviet Union etc would testify to the dark side of the attempt to define chaos out of social life and define.

JOHN AUSTIN

John Austin study law in 1812.  He was appointed professor of jurisprudence when legal education was almost entirely practical.  Austin tried to put positive laws into a political framework. His first public lecture was in 1828, but he failed to attract students and resigned his chair in 1932. He was appointed into Criminal Law Commission in 1833 and resigned in frustration for failing to find support for his opinions. Recognition came for Austin’s work after his death, when his wife edited his work and publish them.

Lecture 1: The matter of jurisprudence to positive law, simply and strictly so called: or law set by political superiors to political inferiors. A law is said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over them. The whole or a portion of laws set by God to men is style law of nature.  Of the laws or rules set by men to men, some are established by political superiors, sovereign or subject by persona exercising supreme and subordinate government.

The aggregate of rules established by political superiors is frequently styled positive law, or law existing by position.  A set of rules enforced by opinions, sentiments held or felt by indeterminate bodies of men are law of honour or fashion.   There are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figurative.  Such is when we talk of laws observed by lower animals, laws regulating growth, decay of vegetable, movement of inanimate bodies or mass.  The essential of law rules are (1) Every law or rather laws or rules properly so called are commands. If you express or intimate a wish and you will visit me if I comply not then intimation of your wish is a command. If you cannot and will not harm me then it is not a command.  Being bound or under a duty to obey command makes the wish a law.  Command and duty are correlative terms or wherever a duty lies, a command has been signified and where a command is signified, a duty is imposed.  The evil which will be incurred in case a command is broken is called sanction or an enforcement or obedience.  A law may therefore be defined as a command which obliges a person or persons.  Law and other commands are said to proceed from a superior and oblige and inferior.  Superiority is often synonymous with precedence or excellence e.g. superior in rank, wealth, virtue. It could also signifies might, the power of affecting other with evil or pain or forcing them through fear or that evil to fashion their conducts to one wishes. God is emphatically superior to man; the sovereign one is superior to his subject.  Superior is reciprocal e.g. the monarch is superior to the governed, but the governed collectively or in mass are also superior to the monarch through active resistance. A member of sovereign judiciary is superior to the judge being bound by the law from that body; citizen is superior to the judge, the judge being the minister of law armed with the power of enforcement.  Customary laws must be excepted from the proposition that laws are species of command because they are creation of sovereign state or state may abolish them at pleasure.  They existed as positive law by spontaneous adoption by the political superior. Customs is transmitted into positive law once it is established by the judge, promulgated into statutes.  The only laws which are not imperative and which belong to the subject matter of jurisprudence are the following (1) declaratory laws or laws explaining the import of existing positive law 2) laws abrogating or repealing existing positive laws 3) imperfect laws or laws of imperfect obligation

Lecture V: Positive laws or law so called are established directly by Monarch, sovereign bodies as political superiors.  Every law is a direct or circuitous command of a Monarch, sovereign bodies as political superiors.  There are also human laws styled positive moralities or positive moral rules.  Of positive moral rules, some are laws proper, others are laws improper.  The moral values which are laws are imperative laws or rules set by to men, they are not set by men as political superiors nor are they set by men as private person in pursuit of legal rights.  They are not clothed with legal sanctions nor do they oblige.  The positive moral rules which are laws improperly are laws set or imposed by general opinion of inhabitant of a town or providence.  Some of these are styled rules of honour or law of honour or law that regards conduct of sovereign state caller law of nations or international law.  These so called are sentiments in the absence of sanction.  The distinction are (1) If a body of persons be determinate all persons who compose it are determined and assignable or every person who belongs to it may be indicated. Such bodies include (1) the body is composed of persons determined specifically or individually or determined by character (2) they may answer many generic description, every member is a member of the generic body.  They are distinguished by (1) they comprise of the person who belong to that class (2) every memo is determined by specific appropriate character.  Indeterminate body is not determined, some belong, and some do not.

Lecture VI: Characters which distinguish positive law are (1) Every positive law or every law simply called is set by a sovereign person, or body of sovereign person.  (2) the bulk of given society are in habit of obedience or submission to a determinate and common superior. (2) certain individual might not be in the habit of obedience but certain individual or body renders habitual obedience.  Other members are dependent on the superior.  An independent and sovereign nation is a society consisting of sovereign and subject as opposed to political society which is merely subordinates. The generality of a given society must be in the habit of obedience to a determinate and common superior.  The existence of a law is only one thing, its merit is another thing. If we dislike a law it is still a law.  William Blackstone laws of Gods are superior to all other law and no human laws should suffer to contract them.  But to say human laws which conflict with divine law are not binding is stark nonsense because the most pernicious laws which are most opposed to the will of God have been and are continually enforced as law by judicial tribunals.  Austin distinguished his general or analytical jurisprudence from criticism of legal institutions which he called science of legislation.

AUSTIN AND UTILITARIANISM

Austin declared himself to be a disciple of Jeremy Bentham and utilitarianism is a continuing clear theme in the work for which he is well known.  Austin interpreted utilitarianism so that Divine will is equated with utilitarianism principle: “utility is the index to the law of God.  To make a promise which general utility condemns is an offence against God.  Most contemporaries saw Austin as utilitarian and the young Austin shared many of the ideas of Benthanite philosophical radicals, namely notions of progress, rule through knowledge, political economy, as well as accepting the ideas of Thomas Malthus. Austin made a lasting impact for at least two reasons (1) Analytical jurisprudence – he argued for analytical analysis of law as opposed to approaches grounded in history or sociology.  AJ emphasizes analysis of key concepts, including law, legal right, legal duty and legal validity and it thus became the dominant approach in analyzing the nature of law. It is a mistake to reduce AJ into ‘legal formalism – what you can formally reduce law into’ and see AJ as opposing a critical and reform-minded effort to understand law and its social, political economic effect.  This approach is loosely grouped under the title ‘legal realism’ that could understood in terms of practical effects of law.  Austin saw AJ as attaining clarity as to the categories and concept of law, as for the morality of law, its effectiveness, its use and abuse or its location in historical development.

LEGAL POSITIVISM

Austin tied is analytical jurisprudence to a view of law known as ‘legal positivism’.  He belief law should be seen as something posited by human judgment or processes.  Most prior work has treated jurisprudence as though it were merely a branch of moral theory or political theory.  For Austin law should be object of scientific study as law was simply law and its morality another issue.  Legal positivism asserts that it is possible and valuable to have a morally neutral descriptive theory of law.  The common theme to Hobbes , Bentham and Austin is demand for clarity of conception and separation of different discursive realms.  
Common law tradition and natural theories gave image of law as something that was not at government’s behest to use as the government desired. By contrast Hobbes, Bentham and Austin identify (positive) law as creation of government (the sovereign) as part of the government’s instrument to achieve (rational, coherent and defendable) rule.
Austin talked about command and rules and positive laws laid down by a sovereign or its agent and succeeded in delimiting law and legal rules from religion, morality, convention and custom. Some customary laws, public international law and part of constitutional laws were excluded unless those adopted by sovereign state.

CRITICISMS OF AUSTIN

Some of the critics of Austin often claim that in many societies, it is hard to identify a ‘sovereign’ in Austin’s sense of word. Austin dismissed this that sovereign is a matter of factual analysis.  It is however to describe British sovereign awkwardly as combination of king, the House of Lords and all the electors of Commons. Some criticism of command model seems to fit some aspects of law poorly (rules which grant power to officials and private citizens of latter, the rules for making wills, trusts ad contracts are example) while excluding other matters (e.g. international law).  It was also consider distorting to reduce all laws to one type as the private laws (wills, contracts, etc) are bout granting power and autonomy, not punishing wrongdoing. A powerful criticism lays solely in terms of power fails to distinguish the rule of terror from forms of government to the extent that they are accepted as legitimate by their citizen.  Austin laid out the structure for modern legal positivism and when Hart revived it in 1958 and 1994 he built of Austin’s theory.

A CONTEMPORARY VIEW

Austin’s work was highly fashionable in the late 19th century.  Today, Austin can be seen as all too trusting of centralized power and his writing a strange mixture of analyticism and realism.  When circumstances seem to warrant a more critical, skeptical or cynical approach to law and government and government, Austin’s equation of law and force will be attractive.  Yntema stated in 1928 that ‘the idea of a government of law and not of men is a dream.  In our contemporary times, as we see failed states of Iraq and various other nations, the message of Hobbes that security comes before all else is treated as a common-place.  Whether law could be used as a rational instrument of government is another matter.

Thursday, November 15, 2012

PUBLIC LAW - AN OVERVIEW

CONSTITUTIONAL CHARACTERISTICS

1. Written and Unwritten
2. Republican and Monarchial
3. Unitary and Federal
4. Supreme and Subordinate

Unwritten Nature of British Constitution

The following acts of parliament has constitutional status

a) House of Common disqualification Act (Membership)
b) Northern Ireland, Scotland, Government of Wales Act 1978
c) European Community Act 1972
d) Human Right Act 1998

ELECTORAL LAW

1. Every adult who is not subject to disqualification i.e. entitled to vote
2. Fox v Stirk (1970) temporary registered residents are allowed to vote
3. ECHR Judgement in Thirst v UK (2005)reformed those excluded
4. 646 constituencies; the Political Parties, Election and Representation Act 2000 (PPER) introduced Electoral Commissioner.

5. Parliamentary constituency boundaries constrained by parliamentary constituencies Act 1986. Local authority boundaries , geographical consideration. Isle of Wrigt 107,000 the largest constituency and Western Isles 23,000

6. Electoral Act 2008 - reduced age to 18; 50k cap in donation nad laon of 150 million over the life of parliament and 20 million in general election

7. R v Tronoh Mills Ltd (2005) = Distinction between encouragement and discourangement



Major milestones in the Development of the British Constitution

a) Tudor and Stuart period (1930-1700)
b) Republican Rlver - Oliver Cromwell 1659
c) Williams and Mary of Orange - 1689 - Bill of Rights Act 1689
d) Act of Settlement - 1700
e) Acts of Unions - 1706 & 1707 - Scotland
f) Act of Union 1800 - 1924 (Republic of Ireland)
g) Elizabethan Period (1500 - 1603)
h) World Wars (1914 - 1945)
i) Council of Europe - 20th Century
j) Parliament Acts 1911 & 1949

Sources of Constitution

A. Acts of Parliament

1. Representation of People Act 1983 (for election matter)
2. Local Government Acts
3. National Securities & Terrorism Acts
4. Constitutional Reform Act

B. Common Law

1. Case of Prohibition (1607) The King has no power to act judicially
2. Case of Proclamations 1617 - The King cannot make law
3. Vauxhall Estate Ltd v Liverpool Corporation (1932) - In a case of
conflict between 1919 & 1925 act, the arguement of implied repeal
4. Anisminic case v Foreign Compensation Commission (1969) - Errors of
law and fact
5. Derbyshire County Council v Times Newspapers Ltd
6. Laws and Customs of Parliament
7. Royal Prerogatives
8. The European Conventiosns on Human Rights (ECHR)
9. The law of the European Community & Union

Ministerial Responsibility

1. Collective Ministerial responsibility i.e. vote of no confidence, absolute confidentiality was lifted in 1930 (when the parliament debated the state of the economy during depression0 and 1970s (When the parliament debate UK membership of the European Union)

2. Individual responsibility: Resignation, ministerial accountability and responsibility for administrative failure.

3. Authoritative work

4. 2007 Ministerial code makes it compulsory for minister to seek consent of the appointment committee before taking up outside appointment.

Separation of Power

1. Lord Chancellor - Executive legislative & judiciary

2. Executive

3. Judiciary

4. Legislative

5. Dimes v Grand Junction Canal Proprietors (1852) - bias You cannot be a judge in
your case

6. R v Bow Stream Pinochet (Amnesty Internationa) overturned previous decisins

7. M v Home Office (1994)

8. CCSU v Mins of Civil Services (1986) GCHQ case


RULE OF LAW


1. No punishement except breach of existing law - R v R (1991) - Redefinition of
sex in marriage

2. Equality before the law - exceptions are immunities to certain public officials
e.g, Police,Members of Parliament,Judges,Diplomats, etc

3. Rights and Freedom Protected by Common Law - Equal Pay, Sex Discrimination,Race
Relation, Malone v MPC

4. Entick v Carrington (1965) Illegal warrant by Rossminter (if statutory
requirements are met,it is lawful)

5. Malone v MPC; Malone v UK, Re.M

6. R v Secretary of State for Fire Bridgade (1995)
A v Secretary of State for Terrorism (2004)- Indefinite detention violated the
law (HRA)

ROYAL PREROGATIVE


Blackstone and Dicey definitions. The issue of undemocratic nature and the need for accountability and control.


Parliamentary Sovereignty


Bill of Right 1689
Dicey Analysis -Parliament can legislate on any subject; no parliament can bind its success; The legality of any law passed by parliament cannot be challenged in court. Exceptions in Pickin Case, R v R; R v Shaw and Burma Oil; European Union Act and Human Rights Act 1998.

1. B v Jones (Margaret) 2006: Court could not look into issues conducted under ...
and international laws could not be applied for local issues.

3. R (Bancourt) v Secretary of State for Commerce Affairs (2007). The court held the use of prerogative to flout court order is unlawful.

STRUCTURE OF GOVERNMENT

1. Crown - Prerogative; conventions

2. Privy Council

3. Prime Minister

4. Cabinet & Ministerial responsibility
Collective & Individual Responsibility and the following keys cases:

a) Crichle Down 1954 - the affected minister(s) resigned
b) Sachsenhauses 1968 - No resignation
c) 1982 Breach of Palace Security - No resignation
d) Escape from Prison - No resignation
e) Farkland War 1982 - No resignation
f) Transport inefficiency - Resignation
g) Iraq Wars 2003 - Resignation - Cook
h) Release of Prisoner - No resignation
i) Arms sale to Iraq - No resignation - Hutton Inquiry and Buttler Inquiry led
to no resignation

5. Civil Service - Key characteristics - Neutrality, anonymity and performance


6. Local Governments

a) Functions -Refuse collection, street lighting, recreation,schools, magistrate
court and local police
b) Control by Acts of Parliament
c) Greater London Authority Act 1996 & 2007
d) Norther Ireland Assembly
e) Scottish Parliament - Regional assembly for primary legislation
f) Welsh Assembly - Delegated legislation
g) Local Governemtn & Public Involvement in Health Act 2007


7. House of Commons







and led to the change of Law

Monday, November 12, 2012

ESSAY ON CLASSICAL AND MODERN NATURAL LAW THEORY

ESSAY ON CLASSICAL AND MODERN NATURAL LAW THEORY INTRODUCTION

Natural law was the only kind of legal theory from the ancient Greeks up until the 16th or 17th century. The essence of natural law `was that law must be understood as a practical application of morality hence law and morality are intimately connected. Legal positivism idea however denies that law is simply a matter of applied morality. Many positivists noted that many legal systems are wicked and what is really required by morality is controversial – abortion is an example of where law continues to make rules guiding it. Positivists conclude that law is a kind of social technology which regulates the behavour of its subject and resolves conflicts between them. The philosophy of law is therefore of a particular social institution and not a branch of moral or ethical philosophy.

THE RISE OF NATURAL LAW IN ANCIENT GREECE AND ROME

Originally natural law was a general moral theory which explained the nature of morality and not nature of law per se. The basic idea is that man using his reason and possible with the help of revelation of gods and Gods could come to how he could act in respect of his fellow man. The claims of natural law morality applied just as much to the ruler and the ruled. Nowadays, natural law is generally taken to mean only that part of the original moral theory which explains the way that law, narrowly construed, operates as part of broader moral life of human beings. John Finnis emphasizes that the philosophy of law is continuous with general moral or ethnic philosophy. It has been argued that in small, close-knit, primitive societies the inhabitants make no distinction between what is morally right and the way they think is right to do things. Plato believed that those who were properly philosophically instructed might come to appreciate the true form or idea of justice and other absolute values. Aristotle thought that man was social, political and sought knowledge and only when in a position to fulfill these aspects of his nature could men flourish and achieve good life. The law on books that most directly result from intellectual activity was the jus gentium, which started life as a second class legal order, or a stripped-down Roman Civil law which applied to foreigners, but which came to be regarded as a higher or superior legal order, in some sense akin to international law, a kind of common law of citizens which applied throughout the Roman Empire. The single most important theoretical issue is how universalistic perspective is property to be employed to judge the laws of any particular society. In most extreme form, one can adopt the Latin maxim ‘lex injusta non est lex i.e. an unjust law (according to principle of morality) does not count as law, is not law e.g. law passed by everybody to kill their first born will not be considered as law. This most extreme version of the force of natural law has been primary target of positivists that such a law is validly passed is law, even when might be morally obliged to disobey it. It is a common exam mistake to state something silly along the line that ‘only natural lawyer judge the law by moral standards. Legal positivists are happy to criticize immoral laws; they simply do not deny an immoral law is a law. Jeremy Bentham attacked England law throughout his life as bad laws and did not claim they are not laws because they were bad. Natural lawyers tried to show more plausible connection between law and morality. In conclusion, natural law tradition arose as the application of theory of morality which emphasized man’s common moral nature to the legitimacy of states. This became politically important when empires sought to rule over different people with different customs so natural law seem ideally place to provide universal standard of justice. Different theories arise which did not agree on universal basis.

THE NATURAL LAW OF AQUINAS: STRUCTURE

Thomas Aquinas uses his genius to reconstruct classic natural law tradition of the Greeks and Romans with Christian theology. The central idea was the grace of God was held not to conflict with or abolish man’s nature but to perfect it in a way a Christianized version of natural law could continue to bring to fruition the natural law tradition. According to Aquinas man was able to participate in the moral order of nature designed by God. The orders of law were as follows: a) Eternal law: the whole universe is governed by divine providence which is the ultimate order imposed by the Creator. b) Natural Law: The participation of man in ordering his affairs in participation in the rational affairs by a reason is participation in the rational order ordained by God through his divine wisdom through the use of his free will. c) Human Law Human law constitute of particular rules and regulations that man using his reasons deduced from the general precepts of natural law to deal with particular matters that crimes must be punished with a severity that corresponds with the seriousness of a crime e.g. death, imprisonment 2, 10, live or fine for certain offences. These are also positive laws as they actually deposited by men d) Divine law: This is the law that is revealed my God to man more or less directly through the provision of the Ten Commandments. Much of the divine law would be church or cannon law and enforced by church or in some case by state e.g. (usury or blasphemy or witchcraft), divine law could be instantiated in secular law as well. Furthermore, there could be overlap for example the Ten Commandments, where prohibition against, murder, theft, bearing false witness which are divine law are also appreciated as natural law.

THE NATURAL LAW OF AQUINAS: LEGAL REASON, HUMAN LAW, AND THE OBLIGATION TO OBEY THEM

Sometimes human law is simply a deductive conclusion from general precepts of natural law. Aquinas explored the analogy of the architect to explain how human law is created. Natural law precepts or requirements of house building e.g. doors, windows, foundation roof, wall etc while human laws deduct from this and come up with proper measurement, punishment etc. Aquinas uses specification (specified) while human law decides the determinatio, determination within the boundaries set by natural law. Human law must be general to all things. Since human are granted limited reason and insight, there will always be exceptional case in which a departure between the strict rule will be justified, human judge must maintain and nature this sense of equity in the face of the rule. Human law is mutable and will be different in different times and places but it is unwise to change the law frequently or radically. They should only be changed if the benefits clearly outweigh the drawbacks. The fact that a law is unjust does not provide one with an absolute licence to disobey it because of the consequences because some might be encouraged to disobey law for selfish reasons.

MODERN NATURAL LAW THEORY 1:

FINNIS Moral skepticism is what a natural theory must address. Realists about morality believe that moral values and principle exist and cognitivists about morality believe human can come to know these moral values. Moral skeptics deny these views. Emotivists of various kind belief what we call our moral belief are express of our emotional attitudes. Moral skepticism has often been attacked as incoherent and nonsensical but the debate remains a live one. The second argument is fact/value distinction i.e. distinction between description and prescription. David Hume famously pointed out that one cannot validly infer or derive evaluative proposition from factual one. One cannot derive ought from is. Because of their biology woman can bear children, therefore women ought to bear children and is morally right to do so and immoral for them to avoid to having children. The argument is that natural law trading is founded on the fallacy of deriving ought from his. Finnis argues that natural laws theory is founded on man’s ability to grasp value directly not inferring from facts of the world. The values of life, knowledge, play aesthetic experience, friendship, religion and practical reasonableness. These basic values are irredeemably plural and incommensurable.

FINNIS’S NATURAL LAW THEORY OF LAW AND CRITICISM OF POSITIVISM

Law is a social institution whose purpose is to regulate the affairs of people for all people to flourish and therefore law is a moral project. Finnis welcome the insights into the nature of law originated by positivists, in particular HLA but denies that positivism provides a full or accurate picture of law Attempt to sustain natural law theory.

MODERN NATURAL LAW THEORY II: FULLER

In his own case, Fuller sought to explain the moral content of the idea of the rule of law i.e. government by rules and judicial institutions as opposed to other sort of political decision-making. The morality he described is morality as legally meaning morally sound aspects of governing by rules. Moral skepticism is what a natural theory must address. Realists about morality believe that moral values and principle exist and cognitivists about morality believe human can come to know these moral values. Moral skeptics deny these views. Emotivists of various kind belief what we call our moral belief are express of our emotional attitudes. Fuller is often credited with devising a procedural natural theory in that he does not focus on the substantive content of legal rules and assess them as to whether they are moral or not, but rather concerns himself with requirement of just law-making and administration.

THE CONTINUING DEBATE OVER THE CONNECTION BETWEEN LAW AND MORALITY

HLA who though a positivist was always sensitive to the natural lawyers claims and again addressed the different connection he saw between morality and law. Dworkin sees an intimate connection between morality and law although from different perceptive. Dworkin believes his theory refutes positivism.

CONCLUSION

This essay examines natural law theory i.e. law and morality and intimately connected which was the only legal theory from the ancient Greeks up until the 16th or 17th century. Legal positivism idea however denies that law is simply a matter of applied morality and concluded that simply a social institution that regulates the behavour of its subject and resolves conflicts between them. Some of the thinkers include John Finnis, Plato, and Aristotle. Thomas Aquinas use his genius to reconstruct classic natural law tradition of the Greeks and Romans with Christian theology of Eternal, Natural, human, and divine law, Finis and Fuller who sought to explain the moral content of the idea of the rule of law. Finally HLA who though a positivist was always sensitive to the natural lawyers claims and again addressed the different connection he saw between morality and law. Dworkin sees an intimate connection between morality and law although from different perceptive. Dworkin believes his theory refutes positivism.

ESSAY ON HART’S CONCEPT OF LAW

ESSAY ON HART’S CONCEPT OF LAW INTRODUCTION

Hart’s theory is a modern restatement of theory or legal positivism first expounded in the 19th century by Jeremy Bentham and his disciple John Austin. In chapters 2-4 he attacked Austin and Bentham’s command theory of law. The main thesis, that law consists of ‘union or primary and secondary rules’ are contained in chapters 5 and 6. His theory or rule of recognition is discussed in chapter 6. Chapter 9 is where Hart defended his thesis.

PREFACE In the preface to the book, Hart said his intention was to produce an “essay in descriptive sociology”, pay great attention to examining language and meaning of words and emphasis between internal and external points of view. He also indicated that he will pay attention to examining language and meaning of words and pay attention to the concept of law we are all familiar. He calls his thesis a mere description of law that is already known. He described his use of legal-related language by an analogy of the captain of a ship who concentrates of focusing his telescope with the main object of finding land. The use of legal-relate language is only a means to an end. He emphasized the distinction between internal and external point of views in understand his theory or concept. In the analysis of rule following, Hart distinguished between merely habitual behavior that doing things as a rule following i.e. making it a rule to do something.

DEFINITION AND THEORY IN THE CONCEPT OF LAW

Hart isolates the following three question of importance to be considered in jurisprudence: a) What is the difference between law and coercion? b) What is the relationship between legal and moral obligation? c) What does it mean to say that a rule exists in a particular society? In definition of law, the Model (union of modern and secondary rules) of law is constituted by a central set of elements that describe a modern municipal legal system. We can now say international law is law to the extent that its shares similarities with this central case (it involves legal argument employing rules) and not law to the extent that it does not (e.g. there is no court of general jurisdiction).

CRITICISM OF ORDERS BACKED BY THREATS (OBT) THEORY

Hart then went to provide a classic criticism of orders backed by threats (OBT) Theory of law which is similar to Austin command theory. The main criticism of OBT is that it ignore concept of rule of rule following and concentrate on law a sets of punishment from someone who gives orders. The key issues discussed in the various chapters are as follows:

In chapter 2: Harts considers linguistics differences between orders and laws and talk about linguistic method or method of linguistic philosophy. Being obliged and under obligation to do something. A bank cashier being obliged to by an armed robber to hand him cash or when a tax inspector orders someone to pay a particular amount of money. The legal request is obligatory, while the armed robber’s order is being obliged.

In Chapter 3: Hart considers what law would look like if we consider law as orders to us by legal sovereign and make three criticisms as follows:

(1) While some law imposes duties (criminal, tort etc) a large part of our laws does require us to do things (contracts, marry, forms companies, acquire properties are power conferring rules that can facilitate our activities

(2) Law can also apply to the makers and top down cannot be accounted for

(3) In some cases there could be no placed and time where law was created (such as customs) as the OBT suggests.

In Chapter 4: Harts continue the criticism of OBT theory by criticizing the idea of legal sovereignty as brute force. Reference to a group of persons or person that relied on the continued habit of obedience to it would meet severe difficulties where there was change in sovereignty. According to him sovereign is constituted by rules so that the appropriate persons are seen as occupying offices of the sovereign rather than being the sovereign themselves. In UK we have crown-in-parliament is the sovereign. d) Union of ‘primary and secondary rules’

In Chapter 5: Harts discussed his own model of law includes the idea of obligation that implies the existence of strongly support social rules that confers power and permit peoples to do things. Duty-imposing rules without power-imposing rules would not be a truly legal system, but a pre-legal system. This is because the existing of both sets of rule is necessary to create a legal society. To cure the defects of duty-imposing rules, Hart construct three power-conferring rules which he called secondary rules as follows:

a) Rules of change that introduce private and public powers of legislation and repeal and cure the defect of lack of progress (public legislation).

b) Rules of adjudication and these cures the defect of inefficiency by introducing courts and other institution of enforcement (courts of law and enforcement).

c)Rule of recognition conferring power on people to identify the law for certain through institution of criteria of legal validity, cures the defects of uncertainty (make wills, contract, marriage etc). Duty-imposing and power-conferring rules create Hart’s ‘union of primary and secondary rule’ through which he thought he had found the key to the science of jurisprudence.

In Chapter 6: Harts examined in detailed the rule of recognition and its role in constitutional law. This rule was identified as matter of empirical fact and law was seen as something different from morality. Hart also say legal system is in existence where (1) the rules issuing from it are by and large effective (2) even if people in general needs not accept this rules, the officials do accept certain standard as setting up the criteria of legal validity of the system. The less important chapters g)

In chapter 7: Hart discussed his view of legal reasoning and stresses the open-ended, unclear and ambiguous character of many legal rules including his famous distinction between the core and penumbra of settled rules of legal systems. He attacks the view that law can be reduced to a set of propositions about what judges will do. The American Legal Realism criticized this view and stated that statement of laws were no more than prediction of what judges and juries would do in particular case. This led to a call for the examination of law beyond the stated rules into the sociological conditions that surrounded law. This chapter should be read to understand how Hart might defend himself against Dworkin’s criticism of Hart’s rile of recognition

In chapter 8: Hart considers why law and morality has so much to do with each other but nevertheless can be distinguished in the way his theory of legal positivism requires. His brilliantly clear introduction to the idea and history of the development of doctrines of natural law is one of the best introductions to this subject. Hart distinguishes between the sort of justice to law (procedural justice or justice according to law) and the justice that attaches to substantive law (or justice of the law). He says the latter concept is more important from the moral point of view. i)

Chapter 10: sums of Hart’s theory of definition and how international laws is to be understood in terms of general thesis that law consists of a union of primary and secondary rules.

A RETURN TO ‘INTERNAL’ POINT OF VIEW

One of the ways to get into a state of mind to criticize this theory is to constantly ask “what the ‘internal point of view’ is. According to Hart this means nothing more than when a person has an internal point of view towards a set a rules i.e. he or she accepts the rules. Why would anyone accept these rules? The rule of recognition is crucial to identifying law and there is a distinction between ‘external’ and ‘internal point’ of view. If judges are only to commit themselves to their judicial oath of legal validity that has some moral decency – a commitment to allegiance to the Nazi party would not be proper? If we think we would not identify any rule as valid law unless it complied with a rule of recognition that embodied some moral decency (e.g. democracy). That would entirely demolish Hart’s theory of legal positivism since it would hold that there was necessarily some connection between legal validity and moral decency.

PERRY ON HART’S METHODOLOGY

Stephen Perry takes the line that Hart’s theory cannot be purely ‘neutral’ and ‘descriptive’ because Hart relies on ‘evaluative judgments’ in his choice of a central case. Perry was of the view that explanatory power is determined by ‘meta-theoretical’ criteria such as predictive power, coherence, and an attempt at covering all available phenomena. If the aim of description is accuracy, then it should report inconsistencies and different views about what obligations people are under or whether people are actually under obligations. Perry concludes that internal account is required to understand normativity.

CONCLUSION

This essay examined briefly Hart’s theory is a modern restatement of theory or legal positivism first expounded in the 19th century by Jeremy Bentham and his disciple John Austin. In the preface Hart said his intention was to produce an “essay in descriptive sociology”, pay great attention to examining language and meaning of words and emphasis between internal and external points of view. Hart also provide a classic criticism of orders backed by threats (OBT) Theory of law which is similar to Austin command theory, because it ignores rule following and concentrates on punishment and orders.

  In Chapter 2 Hart considers linguistics differences between orders and laws and talk about linguistic method or method of linguistic philosophy. In Chapter 3, Hart considers what law the structure of law is it is consider law as orders to us by legal sovereign. In Chapter 4 Harts continue the criticism of OBT theory by criticizing the idea of legal sovereignty as brute force. Chapter 5 discussed Harts model of law includes the idea of obligation that implies the existence of strongly support social rules that confers power and permit peoples to do things. In Chapter 6, Harts examined in detailed the rule of recognition and its role in constitutional law. In Chapter 7 Hart discussed his view of legal reasoning and stresses the open-ended, unclear and ambiguous character of many legal rules including his famous distinction between the core and penumbra of settled rules of legal systems. In chapter 8 Hart considers why law and morality has so much to do with each other but nevertheless can be distinguished in the way his theory of legal positivism requires. In Chapter 10 sums of Hart’s theory of definition and how international laws is to be understood in terms of general thesis that law consists of a union of primary and secondary rules. One of the ways to get into a state of mind to criticize this theory is to constantly as “what the ‘internal point of view’ is. Why would anyone accept these rules? The main criticism of OBT is that it ignore concept of rule of rule following and concentrate on law a sets of punishment from someone who gives orders.

Essay on Master Rule for Law: Hart's Rule of Recognition

Jurisprudence and Legal Theory is a slightly different subject from most of the undergraduate subjects because there are no clearly established superior principle and binding authorities. It is more like philosophy and could be very abstract. Most law students find the subject strange, uninteresting and extremely difficult to understand. I must confess, I found it very tough too. You need to read the topics several times before you can begin to understand that it is actually a battle between natural (moral) law theory(ies) and legal positivism. Once you begin to understand the link, you will realize that it is a very interesting subject.

To help other students, I am currently working on what I will referred to “Law Student’s Review Series” to cover the subjects I studied in my final year which have no materials on the my Blog i.e. Jurisprudence and Legal, Company Law and Public International Law. Based on the request from an e-mail I received, I will start with Jurisprudence and Legal. I must however warn that the essays in the series are not substitutes for available materials on the subject. Let me repeat for emphasis YOU NEED TO READ THE TOPICS A COUPLE OT TIMES IF YOU WANT TO HAVE A GOOD GRASP OF THE LEGAL ISSUES.

THEORY ESSAY ON A MASTER RULE FOR LAW: HART’S RULE OF RECOGNITION

INTRODUCTION

It is the rule of recognition that allows an understanding of law as it concerns certain area of law (e.g. property, contracts, criminal, commercial etc). Is there one rule of recognition of law or whether there are several? Hart’s reply was that this is not important. In UK we can say what crown-in-parliaments enacts and what the common law court decides is law. “Some feature or features possession of which by suggested rules is taken as conclusive affirmative indication that is a rule of one of the group supported by social pressure it exerts”.

THE SUPREME CRITERION AND THE ULTIMATE RULE

A rule of recognition is simply a rule whose function is to identify whether or not another rule is part of the legal system. This are (1) the supreme criterion: this is part of the rule of recognition that dominates over the rest. Parliamentary enactment in the UK prevails over common law, local or general custom (2) the ultimate rule which is the rule of recognition itself because you cannot go back further than that. We can trace back the validity of bylaw to an Act of Parliament but we cannot inquire further. Hart use this to criticize Austin’s attempt to say that all law is result of legislation (in Austin’s theory of tacit consent of the sovereign). Hart say these rules are not explicitly declared in the day to day life of legal system but its existence is shown in the way in which particular rules are identified.

DEFINITION OF A LEGAL SYSTEM

The criteria for the existence of a legal system are that (1) the officials of the legal system must have the internal attitudes towards the rule of recognition of the system otherwise called unified or shared official acceptance of the rule of recognition. (2) The valid legal rules of the system must generally be obeyed by both officials and the private citizens.

CRITICISM OF THE RULE OR RECOGNITION

Finnis’s Critique: Hart leave insufficiently specified the sort of attitude towards the rule or recognition that the officials have. Finnis’s own view is that the central set of elements constituting official acceptance of rule of recognition is a moral acceptance of the rule. As a result of this he claimed to have found a conceptual, logical link between validity and morality. A similar sort of critic is to be found in the final Appendix to McCormick’s Legal Rights ad Legal Reasoning. There is a strong connection between Finnis’s thesis and Dworkin’s thesis that a proper legal theory must explain the moral force of law and that a proper interpretation of law require us to make best moral sense of our legal practices. Dworkin’s criticism of the rule recognition: if we take Hart at face value (the empirical fact) to cure the defect of uncertainty, then it follows that any rule purporting to be a rule of law can be identified with certainty (by applying the test of identification of the rule recognition). Any rule that cannot be identified with certainty is not a rule of law and so all hard cases in which what the law is controversial do not concern law – the case of vehicle prohibition from parks and roller-skates). Three things flows from this (1) the judiciary has to act as legislator to make law for the future on whether roller-skates (against what judges are supposed to be) (2) the judges characteristically then applies the law to the defendant (retrospectively) which is unfair and not how we think judges act (3) judges must continually be misdirecting what they are doing because they talk as if they were finding the law rather than legislating it. Positivism therefore fails when it comes to giving account of legal argument.

To understand Dworkin two points needed to be bear in mind (1) clear meanings are themselves only “clear’ because of some interpretation. (2) Unclear meaning really brings out the above, there is no answer to the question ‘what do vehicles include? In advance of actual example and an argument. s.51 of the Adoption Act 1951 and R v Register of Births, ex parte Smith (Smith a mentally disordered person who killed one person and tried to kill another whom he mistakenly thought were his natural mother applied for his birth certificate to know his real mother. S.51 gives him right, but the purpose is criminal and the parliament which gave him the right also prohibited aiding and abetting crime. Hart Postscript to the concept of law in which Hart counter-attacks Dworkin attack on legal positivism and his legal theory.

THE POSTSCRIPT

Hart versus Dworkin: Hart affirms that his theory intended to be both descriptive (morally neutral with no justificatory aims) and general while Dworkin enterprise is in part evaluative and justificatory and addressed to a particular legal culture and they are not in conflict but writing with different aims in mind. Harts denies that he ever had linguistic theory but concept and criteria for its application. Harts disagrees with Dworkin that the point or purpose of law of legal practice is to justify coercion. Dworkin’s concession about the flexibility of legal language strengthens rather than weakens the positivist’s case. Hart argues that he is about universal description and Dworkin about justification of coercive power. To what extent can you make sense of a human practice without being part of that practice (mathematics and mathematician), could anybody stone-deaf analyses music.

PRINCIPLES AND THE RULE OF RECOGNITION

Hart also thinks that there are no sharp distinction between principle and rule but that of specificity and perhaps weight. Riggs v Palmer (a murderer could not inherit from the estate of the person he murdered) based on clear rule of succession, but Dworkin denies such rule and say there is only a general principle (that no man should profit from his own wrong). Hart said while theoretical difference between them, they share certain basic facts of legislative history about limit to the application of judges. The main difference lies in the fact that there are few legal systems outside UK and US that take the form of all-embracing kind (holistic) form of legal reasoning Dworkin says about constructive interpretation.

JUDICIAL DISCRETION

Hart addresses how best the unregulated cases should be resolved in answering the difference between himself and Dworkin. He thinks that there are cases where judges exercise their judicial discretion by acting and judicial law-makers and does not think that his poses a great threat to democracy. The general principle is that nulla poena sine lege (no punishment without law) i.e. no one should be punished or whatever unless there is a law which prohibited the act at the time.

Saturday, November 10, 2012

Notes on Jurisprudence, Commercial Law and Public International Law

Over the next few weeks/months I will be sharing some of the notes and essays I developed for the following subjects which I took in my final year: a) Jurisprudence and Legal Theory b) Company Law c) Public International Law Look out for these notes.

Saturday, November 3, 2012

SUCCESSFUL COMPLETION OF THE LLB PROGRAMME – MY STRATEGY

It is with great pleasure and personal sense of achievement that I write to inform the visitors to this site that I have successfully completed the LLB Programme of the prestigious University of London. I must confess it has been a very rigorous, demanding but excitingly rewarding academic experience. To demonstrate the quality of the academic progamme you are privileged to be pursuing, I have already been offered a provisional admission by the Nottingham Trent University, UK for LLM in Public International Law, LLM Corporate Law and MBA even when I am yet to physically collect my Certificate from the University. This says a whole lot of the reputable of the University of London. Will I or take up the offers or not? I am still considering my options.

I took the decision to share my experience to encourage others. This is because Distance learning could be quite frustrating and discouraging sometimes. The difficulty is more pronounced for those studying Law. This is because Law is interactive and you learn a lot from interacting, arguing points of law and discussing with fellow students. This important aspect of legal studies is not available to those studying by distance learning. To succeed you need to able to motivate yourself. I was able to overcome this challenge because I work with about 15 lawyers in the legal department of a government establishment. The discussions I had with my colleagues served as barometer for measuring my progress. Try to work with a study group among fellow students. Where this is not possible, look for friends or family members to discuss your essays and the legal issues as you come across them. For example you can discuss "Consideration" in Element of Laws of Contracts. If you are able to pass your message across you will learn a lot through this process. I understand the challenge of most students because throughout the duration of my programme I was working full time. If you have other commitments, your best route to the LLB is Scheme A & B.  I will only advise any student to take the Graduate Route if he or she is prepared to study full time in a College affiliated to the University of London.

What I did was to download the electronic copies of all the Study Materials on my Laptop. I used my spare times (break time, staying back in the office for a few hours every day) some few hours in the weekends and public holidays to read the materials. If I was able to read a page, I made sure that I summarised it. I also developed a 'Virtual Notebook' i.e. I opened a BlogSpot where I typed my notes. Whenever I read any study materials on VLE or read textbooks, I summarised the materials and posted them on my BlogSpot. That way if I was to read for only 15 minutes, the effort will not be wasted because I would have posted on my BlogSpot. This allowed me to have access to my materials even when I travel anywhere in the world. I can also update the BlogSpot anywhere there is an internet access. For example if I read some books in a library and there is internet facility, it is possible for me to summarise the important points on my "Virtual Notebook" before leaving the library. Furthermore, let me share the following tips with you:

1. It is essential to read all the Materials that are provided for each course. In fact, all the tools you required to succeed in the various subjects are contained in the materials provided by the University. I am afraid there is no "short route”

2. Summarise every chapter of the subject guide in an essay form.

3. The essays should contain the legal principles and authorities cases and statutes) for the legal issues addressed in each chapter.

4. The length of each essay depends on the complexity of the legal issues but I restricted the length of each essay to a maximum of 5-6 pages of typewritten documents. I further summarised these essays into what I called “exam essays” which are a maximum of two pages each. This is important because during examinations you will have a limited time to pass your case across.

5. For the cases, I adopted a strategy I learnt in my first year when I attended the revision programme organised by Cambridge University for University of London LLB Students. The strategy is simple, summarise every case you read, in your own words, into a single paragraph capturing the facts, the legal principles and the decision on the court.

6. Attempt all the activities and sample examination in the subject guide. Write your answers down and type them out. This will provide useful insights into the important issues and what the examiners are looking for.

7. Read the Examiners’ Reports and answer all the examination questions for at least 3-4 years before you write the examination for each subject. Type your answers. Through this you will be able to separate the main legal issues and important cases from the less important ones. You will also realize that the questions are similar, but they are address different angles of the legal issues. Ability to identify the legal issues when looking at examination questions is the difference between success and failure. THIS IS THE MOST IMPORTANT PART OF YOUR PREPARATION BECAUSE YOU WILL ONLY BE JUDGE ON YOUR PERFORMANCE IN THE EXAMINATION.

8. The summary in 1)-3) above will provide excellent materials when you are preparing for examinations. Whatever you cannot understand from your summarised essays, you can go back to the materials to read them further for better understanding.

9. Typing your answers will serve two objectives. Firstly, it will provide an opportunity to review your notes while typing them. Secondly, you will be able to amend, delete, add or expand your points when preparing for examinations.

10. Finally, visit the VLE on a regular if not a daily basis. From experience, you will learn a lot from visiting the “Discussion Forum” for each subject

It is not compulsory that you should follow all the above tips. Pick the ones that you find useful and include whatever you consider best for your peculiar situation. You can even talk to others.

These notes served as excellent materials for my revisions. I repeat these are rough notes, I intend to use them as reference materials for research purposes in future. I must however confess I was not able to update it while preparing for my final exams due to pressure of work at the time. In fact, I have not visited the site for a long time. Most of the materials for my final years are on my laptop. When I was pursuing the LLB I did not share the site with anybody. Unknowing to me, several LLB students discovered the site through search engines and have been visiting the site and recommending it to others. I have some of the better materials on my laptop. Now that I have completed the programme, I will be posting the new materials on the Blog. I will also be cleaning up some of the rough notes and improving the qualities of the legal issues address. That notwithstanding, I believe you will find some of the materials on the BlogSpot useful. YOU WILL HOWEVER GET IMMENSE REWARD IF YOU CAN DEVELOP SIMILAR NOTES ON YOUR OWN.

E-mails: afuwape2001@yahoo.com diamondstrategiks@gmail.com Twitter: @olatundeafuwape