Speluncean a. Truepenny CJ i) Does the law exhaust the requirements of ‘justice’? Depends on one’s view of Justice. Justice in Truepenny’s eyes is to extend clemency to the defendants and that if this is done then in his eyes, ‘ justice will be accomplished without offering any encouragement for the disregard of law’. ii) Mercy may not be part of the law if it is followed to the letter of the law. iii) Is Mercy a prerogative of the executive? In this case yes – the Trial Judge and jury have held communications with the Chief Executive for guidance. . The nature of law truepenny has adopted here is one of mercy. b. Foster J i) What is the state of nature and what is a social contract? Where the Spelunceans really in a state of nature? Rousseau It should also be noted that the third great contributor to ‘social contract theory’ was Jean Jacques Rousseau. Although a champion of democracy, Rousseau wrote against the idea of rule by popular assembly. Rousseau wrote The Social Contract in 1762. He saw the Social Contract as the solution to the problem of how man may obey his ruler but still remain free.
Rousseau sought to balance the interests of the sovereign and subject so finely that he took the view that a breach of the social contract entitled the subject to return to their natural state of liberty. Rousseau argued that any loss of the rights handed up to the sovereign entitled the subject to revert back to their natural state. The state of nature was, in his eyes, a state of liberty (i. e. even a minor breach of the social contract entitled the aggrieved party to repudiate their agreement with the sovereign). Also see what Foster has to say on page 6 & 7 of his judgment. ii) Is deterrence the purpose of criminal statutes? Can self-defence be stretched that far? According to Foster ‘one of the principal objects underlying any criminal legislation is that of deterring men from crime. See pg 9 iii) is Foster’s argument of purposive and social contract are discussed from extreme ends. – (but from a Locke perspective the line would be drawn that every person has a right to life. ) He is defending See p 6 3.
Assumption of the nature of law here is Positive – Natural Law – but he seems to sway towards mercy and purpose see pg 5 & 9 c. Tatting J i) Are Tatting J’s Criticisms of Foster J Compelling? Compelling. He disagrees with the state of Nature argument ii) Is the case so vexed that there is no legal answer? No, legally they broke a the commonwealth law of murder and the fact that 10 people risked their lives for the 5 explorers freedom. Session II 1. Law & Philosophy
The philosophical legal debate in Australia, like for instance The Bill of Rights – we disagree about justice so much that the best we can do is give out opinions in the hope that the judges may sway with the communities opinion. By making a bill of rights in writing is law Aristotal – we are by nature political animals and that people are born into families Naturally families congregate with in villages Socraties – thought of Athens like is mother, could not abandon, says I could go to another city, but did not want to go, as a good city would not take a person who condemned him and a bad city how could he live there.
There are two reasons we no longer think like Socraties: 1. St Augustine – city of the earth and heaven, the true city is heaven 2. 17 & 18 Cent they developed a different view, denied we were naturally social, our state of nature we live on our own, we are actually naturally at war with each other – (i) Hobbes (ii) Locke (iii) Roseau (i) Hobbes – absolute Sovereignty – highly individualistic, the great biblical monster, totalitarian theorist.
Hobbes, you could agree to eat someone, does not give us a real reason to not, but there will be a fight, because of survival of fittest skill/theory, right to survive, or demand to survive (ii) Locke – individual rights to life liberty and property – today profoundly lockean. Locke, you could never agree to eat someone, as he believes in individual rights Session II – Philosophical Fundamentals 1. Law & Philosophy pp 1-3 a. What, according to Murphy, is the relationship between philosophy and commonplace beliefs?
Epistemology b. What are the two types of questions which philosophical reflection asks about commonplace beliefs? Explain why Murphy means by each one. The questions that can arise from reflection on our commonplaces about belief are two kinds: 1. type of question we can call analytical or conceptual. These are questions that concern concepts involved in our commonplace about belief: what is belief? What is knowledge? What is support for belief? What is evidence What is rationality in belief?
These questions are about our own ideas, they are about what we mean, about how the various concepts about belief hook up with each other. 2. type of question we call substantive. These are questions, not about ideas, but about how reality matches up to our ideas. We have the concept of knowledge. c. What does Murphy mean when he says that knowledge is justified true belief? Murphy explains that this statement is problematic but closer to our common places about ‘knowledge’ rather than the analysis that knowledge is simply belief. d. Is philosophy inherently conservative or radical?
Is it more likely to undermine our commonplace beliefs or confirm them? Both. One of the standard arguments conservative political theorists often level against radical leftist political theories and engagements is that humans, by nature, are corrupt and characterized by a sort of origin or “original sin”. “Everyone is entitled to their opinion”, that “it is always wrong to be intolerant”, that “all opinions are equal to one another”, that “religion is a private matter without social consequences”, that “nothing can be proven”, for instances does God exist? b. What are the three commonplace beliefs about law? . if one knows something, then one believes it; ii. that if one knows something, then one is justified in believing it; iii. that if one knows something, then what is known is true. 2. Law is a social fact a. What is the difference between an evaluative or non-evaluative fact? Evaluative point of view, there are facts like murder is wrong, beets are good for you, and so forth. Non-evaluative sie, there are facts like there is a murder a day committed in Washington DC, beets are red, and so forth. b. What is the difference between an objective and subjective fact?
Objective facts are those that do not involve the existence of subjects, that is, beings with beliefs, desires, point of view, and so forth it’s a thing like ie: Mount Everest is 29,000 feet high, grass is green etc:. Subjective facts are those that involve the existence of subjects ie: some people think the stock market is about to go up, 50% of society are in favour of some legal constraints on abortion, etc:. c. what kind of fact is a social fact? Is it evaluative or non-evaluative? Is it objective, or subjective? Social facts are non-evaluative d. Is law a social fact? Murphy says yes.
He claims in part law is a social fact. Stating when we take our first crack at describing law, we begin by talking about people, and how they are interacting with each other. He further states we begin our characterization of the law. c. Does law involve evaluative elements? Yes 3. Law is authoritative SESSION III – HISTORICAL CONTEXT 1. What does Berman mean by ‘the Western legal system’ (ie, ‘the West’ and ‘legal system’), ‘tradition’ and ‘revolution’? WEST = people of Europe who from 12th – 16th century who shared common political, legal and religious subordination to the papal hierarchy of the
Roman Catholic Church. Who from the 16th – 20th Century experienced revolutions against Roman Catholicism. LEGAL SYSTEM = systems of law which have developed since the 20th century i. e. constitutional law, legal philosophy etc that share common historical foundations, methods and concepts. TRADITION = sense of ongoing historical continuity between the past and future, in law. The organic development of legal institutions over centuries and generations that have been consciously built on by subsequent generations.
REVOLUTION = fundamental change, rapid change, violent change, last change in the political and social system of a society – involves fundamental changes in attitudes, character and beliefs of the people themselves. 2. According to Berman, what are the six great revolutions which have punctuated and shaped the organic development of the Western legal tradition? French Revolution of 1789 American War of Independence of 1776 – 1783 Russian Revolutions of 1905 and 1917 English Revolution (Glorious Revolution) of 1640 German Revolution (Lutheran Reformation) Papal Revolution (Gregorian Revolution) of 1075 – 1122