Law121 Part One Concepts of Law. (全部）

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Law 121 Part One:Concepts of LawTraditional European Concepts of Law

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Traditional European Concepts of Law
Law is viewed in our own culture is not eh only way it can be approached.

The function of law:
Law is means of social control: it is used as a way to regulate the conduct of the members of a society or community.
Validity of law:
What distinguishes laws from codes of moral conduct or from other social rules that guide our behaviour.

Western legal theorist:

•        Positivist theories of law
      See law as gaining validity by adherence to a particular process of creation.
•        Naturalist theories of law
     See law as gaining validity from its adherence to certain independent principles such as morality, rationality or justice. Status of the law depends not only on the fact of enactment according to the requirements of the legal system in question, but also on some factor or factors outside of that system such as morality, rationality or justice.


Positivist Theories:
Austin’s command theory.
Valid law is
-        a command from sovereign,
-        backed by threat if breached
-        habitually obeyed
Pessimistic view of law
Sound enough to say law if sovereign is habitually obeyed?---------- lead to a circular argument: an authority cannot be self-authenticating

Kelsen’s Pure Theory of Law
      Each law is validated either by, or validates, the norm which precedes or succeeds it in the hierarchy of norms, and the validity of the hierarchy as a whole is validated by the ‘grundnorm’.
This norm is presumed because by its very nature it cannot be created.  It is presumed as a starting point and a logical necessity.
Constitutional laws for rule making
A ‘formalist’ approach
Focuses on structure of law, not content
But where do rules for establishing the grundnorm come from?  
Where do values come into law?
In this sense, the system is self-validating.
Hart’s Rule of Recognition
      Primary rules govern citizens
Existence and interaction of these two is essential to a legal system
Every system of law has a ‘rule of recognition’ with which other laws have to comply with to be a law (eg be passed by parliament)
Gains legitimacy from widespread acceptance by officials and enforcers
So Hart less focused on a supreme sovereign
More based on a system that is accepted.

Natural Law Theories:

                        Product of nature (Aquinas)

•        Moral rules act as a framework within which the law must exist.

•        If the law goes beyond, or conflicts with the framework, it loses its validity as law.

Based on reason (Finnis)

•        Law must answer to some fundamental requirements of logic and reason.

•        Where a legal system rests on a foundation which is justifiable in accordance with a common understanding of what is proper, its rules are legitimised and validated as law.

THE HART/FULLER DEBATE

Dispute about what should have happened with a real case involving laws under Nazi Germany

How should compliance with repugnant laws made by the recognised law making authority in one era be treated after that ?

Hart version:
Woman informed on husband for criticising Hitler
He was convicted under 1934 law and sentenced to death, but sent to front
Post-Nazi era, wife was convicted of procuring deprivation of husband’s liberty
Court found statute was ‘contrary to sound conscience and sense of justice of all decent human beings’
That was only possible by declaring the 1934 law was not law
Alternatives
-        let her go unpunished
-        pass retrospective legislation

Fuller version:
Nazis had disregarded their own existing laws
Different interpretation of the case,
Two laws she relied on did not apply to the facts,
1. required public acts, when his communication to her was private
2. did not provide for death penalty
Surely not appropriate for a post-Nazi court to interpret words in way Nazi’s did?
And cannot ‘respect Nazi law’ as Hart argues if apply a post-Nazi interpretation
Not appropriate to say ‘it is law but we refuse to apply it cos it is evil’
Better to say it is not valid law.
Not practical to wait for a new statute; was an urgent problem, delay would risk people taking law into own hands pending the passing of a new law.
The special importance of these cases is that the persons accused of these crimes claimed that what they had done was not illegal under the laws of the regime in force at the time these actions were performed. This plea was met with the reply that the laws upon which they relied were invalid as contravening the fundamental principles of morality.


Law121 Part One Concepts of Law, Critical Persepctive: Feminism

Critical Perspectives: Feminism
Three phases of feminist legal theory
        Phase one - male monopoly of law

        Phase two - deep-seated male orientation in law which infects all its practices. The feminist task is to devise an entirely new law for women.

        Phase three - male concepts invoked by law to defend itself as a just and fair institution.


Four methods of investigation
        1.Asking the ‘woman question’

        2.Theorising law’s gendered nature

        3.Feminist practical reasoning

        4.Consciousness raising
      Difficulties appeared: 1. The assumption that the experience of all women, irrespective of race, age, sexual orientation, ability or class may be ‘represented’ by one , or any one, woman. 2 . Notwithstanding these difficulties, consciousness raising provides a forum for women’s voices which might otherwise have remained silent or unheard.

Types of Feminist Theory
        Liberal Feminism

        Cultural/Difference Feminism

        Radical Feminism

        Post-modern-feminism


Some examples
•        Sexual harassment
•        “Battered woman” syndrome
•        Women in the workplace
•        Pornography


Law121 Part One Concepts of Law, Traditional Maori Concepts of Law Notes

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Traditional Maori Concepts of Law
What are the sources that tikanga Maori draws upon for its validity?
Authority based on whakapapa bonds between people, ancestors and the environment

Precedent passed down from the ancestors through oral tradition and practices

Does tikanga Maori have anything in common with natural law or positivism?
Personally, it does have something in common with natural law due to ……

What are the core concepts of tikanga Maori?
Tikanga are considered to have their source in a set of core values held by Maori generally which includes 7 concepts : mana, tapu, mauri, to name a few.

How did those rules regulate Maori society historically?
It’s a commonly understood rules that order Maori society by aiming to keep spiritual, environmental, physical and social wellbeing in balance.
It cuts across all aspects of human behaviour-broader function than maintaining the law as understood in a narrow sense.
Offences against tikanga both immoral and in breach of code laid down by tupuna and creator Gods.

Can you see examples of tikanga in operation today?


How does tikanga Maori differ from Western law?

Can the two approaches co-exist or are they too conceptually different?


Why did colonial powers say Maori had no law and what effect did the imposition of colonial law have on the operation of tikanga Maori?


What were the effects of what on Maori society historically and today?


What connection does Mikaere draw between tikanga Maori and the Treaty of Waitangi?
Careful consideration of the facts surrounding the signing of the Treaty reveals a clear Maori intention to create a space for the Crown to regulate the conduct of its own subjects--------------This reaffirmation of Maori authority meant that Tikanga would retain its status as first law in Aotearoa . And also Pakeha law was to remain firmly subject to tikanga Maori.

Maori Legal Institutions and Legal Regulation
Muru--------------- established system of redress
Rahui--------------- instituted to prohibit particular activities for a certain time
Tapu --------------- cohesive force in Maori life; specific restriction as a type of prohibition

Hirini Moko Mead’s Description of Tikanga.            Page17



Ways that Tikanga reviled by England:
(Provided:    Far from acknowledging tikanga as the first law of Aotearoa, the Crown proceeded upon the racist assumption that Maori had no ‘real’ law before the British arrived here to provide it-------As Governor Browne wrote in the letter in 1858 : Before ,this land was occupied by evil, darkness and wrongdoing, there were no upholders of good, no preventers of evil.’(translated))
•        Express denial that it exists------Eg: Not only just a new religion, but also introduced a compilation of English laws that had been translated into Maori ‘with a view of placing in the hands of Maori Race such information.
•        Overt suppression------Eg: The inherent inferiority of tikanga Maori in English laws.
•        Assimilation into the imported institutional law followed by express extinguishment------Eg: Maori were persuaded to take up the new religion, particularly as other effects of colonisation
•        Removal of the resources to which Maori custom law is applied.-------Eg: Disapproved of was the significance of women and the upholding of gender balance.
.
This process is part of what Jackson describes as ‘the attack on the indigenous soul’    Page19,20

Co-exist:
Citing with approval Durie’s view:
If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Maori values within NZ society, then the commitment must be total. It must involve a real endeavour to understand what tikanga Maori is , how it is practised and applied, and how integral it is to the social, economic, cultural, and political development of Maori, still encapsulated in NZ society.
However, it is critical that Maori also develop proposals which not only identify the differences between tikanga and the existing legal system, but also seek to find some common ground, so that Maori development is not isolated from the rest of society.

Improvements:
Maori are now committed to the nurturing and development of tikanga for future generations . It seek to immerse children in Maori language and tikanga from an early age.------------------------------Jackson’s claim that Maori are ‘seeking to reclaim the validity of our own institutions, the specifics of our own faith , and the truths of our own history’. It will not only nourish once more the Maori soul, it will also eventually undermine the conceptual frame work of the Pakeha word and the oppression which has flowed from it.                                          Page23



Law 121 Part one Concepts of Law: Legal PluralismUSE　ＡＳ　ＲＥＦＥＲＥＮＣＥ ONLY
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Legal Pluralism
A new way of looking at law from much more diverse perspectives in its content, causes and effects than our original paradigm proposed.
Romano-Germanic tradition (dominant legal frameworks in Western Societies)
Sources: Scholars based in the universities propounded Romano-Germanic tradition as a set of theoretical principles.
Unlike common law systems, such as our statute law, the codes seek to represent the entire law in one cohesive document. Romano-Germanic legislatures do not, generally, make detailed rules to implement policy decisions. Their role is to create principles. The implementation and interpretation of those principles is left to other branches of government.
The role of case law: The courts, although influenced, are not obliged to follow an earlier case. Cases are often used as a means to persuade the Court that a particular legal principle exists, or that a statutory principle ought to be interpreted in a certain way, but they can only rarely be used as a source of law in themselves.
Fundamental principles: Many Romano-Germanic legal systems abide by certain fundamental principles( natural law-----personal view). On occasion these principles will be encapsulated in the codes , but just as commonly they may be based only on a common conception of justice. Such principles are far more readily accepted than under the common law. ( The Austrian Civil Code enables a Judge to refer to natural law.)
Islamic law:
Many Islamic countries expressly include the principles of Islamic law in their constitution.
Two ways Courts use to solve contradiction :
•        Because Islamic law in general does not prohibit the forming of contractual arrangements, the courts use contracts to avoid some of the stricter results of the law. Example: Matrimonial law.
•        The law has been adapted to meet modern conditions by the use of distinctions and fictions.
Further problem arises because Islamic law is one of the central threads that hold the community of Islamic nations together, if each nation develops its own interpretation of the law, this community will be lost.
Until recently , there had been a gradual but steady decline in the scope and importance of the Islamic Courts in the majority of Muslim countries.

Comparisons between Islamic law and Romano-Germanic tradition:
While historically there has been a strong link between the church and the state in the West, and vestiges of this still remain, by and large the state  is divorced from religious matters.
In the Islamic religion, the law is part of an overall scheme or framework of belief and faith. Compared with that Western concept of law which draws a sharp distinction between moral duties and legal duties.
Under some interpretations of the Islamic tradition, the law is immutable( unchangeable),just like God, the law does not change but is eternal.
In Islamic system, it is not concerned with protecting the interests, person or property of individuals. It tries to ensure that members of the community live in a way which is in accordance with the doctrines of  Islam, that they do not fall into a state of sin and disharmony with God. The focus is on spiritual rather than worldly concerns.
Comparisons between NZ and Western countries’ legal system:
In NZ legal system, Judges are selected from prominent lawyers in practice who are appointed to senior judicial positions. This is in distinct contrast to the Romano-Germanic system, where judicial officers are trained in this particular role, enter the profession at a low level, and work their way up to Judges.
Manner in which trial are conducted: In the common law tradition, Judges act as “umpires” to ensure that the rules are adhered to while the parties conduct a legal “battle” to determine the issue. By contrast, Judges in the Romano-Germanic tradition generally participated in the trial and act as inquisitors in the process.The role of the Judge is that of a fact-finder more than an umpire.
Concepts of law: The common law is derived from specific instances that can be applied to new situations. By contrast, in the Romano-Germanic tradition the law is conceived as a set of principles that are based not on a collection of instances but on scholarly contemplation of human affairs. It sees the law as a cohesive and interconnected whole. Each particular principle is viewed in the context of the rest of the law and interpreted accordingly. However the more abstract nature of the legal rules puts greater discretion in the hands of Judges. Too much power of Judges: because the result of the flexibility is a degree of uncertainty, in the application of the principles. Implicit in this approach is the rejection of the concept of cases being the raw material in which the law is to be found. This means that the Court chooses to decide in a manner inconsistent with an earlier conclusion, it may do so without having to justify it.
Pluralism within global society
        Which legal system applies?

–        Offences crossing borders
–        European Union


        Who has jurisdiction in cases involving church matters or military matters?
        When different systems of regulation meet
Pluralism
        Many things that lack the formal status law fulfill a similar function
        Unwritten rules
        Should these be considered as “law”as well?





Law 121 Part One:Concepts of Law Legal Realism & Critical Legal Studies
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Law in context : Legal Realism & Critical Legal Studies
What was ‘realist’ about the legal realist school, and what aspects of ‘reality’ did they focus on?
The ‘ought’ defined by law is blindly taught as the ‘is’. As a result the teaching of the law is usually the perpetuation of a myth.
Two models of society:
Consensus Models:
Roscoe Pound : urged that in a democratic society, the values of the law ought to respond to the values of those to whom it applied.
Talcott Parsons: exactly the same as Pound and also made four principle assertions
o        Every society is a relatively persisting configuration of elements.
o        Every society is a well-integrated configuration of elements.
o        Every element in a society contributes to its functioning.
o        Every society rests upon the consensus of its members.
Conflict Models:
Ralf Dahrendorf:
•           Every society is at every moment subject to change
•           Every society experiences at every moment social conflict
•           Every element in a society contributes to its changes
•           Every society rests on constraint of some of its members by others.
Also he asserts that it is impossible empirically to choose between these two sets of assumption. Each  model may be useful to explain specific aspects of social process.
Indeed, the empirical studies make it quite clear that the value consensus model is not only incapable of accounting for the shape and character of the legal logically relevant questions about the law. The conflict model by contrast while having many shortcomings and not providing a complete answer to the questions raised by the study of law, is nonetheless much more useful as a heuristic model for analysing legal systems.
               
How does legal realism differ from natural law, positivism and tikanga Maori?
They deny the naturalist and positivist view that judges are influenced mainly by legal rules; realists attach greater significance to political and moral intuitions about the facts of the case.
The realists were preoccupied with empirical questions (attempting to identify the sociological and psychological factors influencing judicial decision-making,) ,yet their implicit conceptual loyalties were positivist. But, though they accept, along with the positivists, the need for a scientific analysis of law , the realists reject the single avenue of logic and seek to apply the numerous avenues of scientific enquiry, including sociology and psychology. Difference between positivism and realism  is:  this realism is an impatience with theory, a concern with law ‘as it is’, and a preoccupation with the actual operation of law in its social context .
Do you think New Zealand society is closer to the consensus or the conflict model?
Does that depend on who you are?
Did the legal realists take a consensus or conflict view of society and the role of law?
Why do you think the legal realist school arose in the United States and Scandinavia, and had less support in the United Kingdom (and Australia and New Zealand)?
Critical Legal Studies view:
Law is indeterminate; outcomes are not deduced from the law, but are arbitrary . Also perpetuates social inequality.
•        Law is shaped by society & society is shaped by law through human actions
•        Law is part of the State’s political framework
•        Law reflects and reinforces dominant social, economic, cultural, gender values & interests
•        ‘Objectivity & science’ disguise dominant interests & discredit alternatives
•        Law’s framework was designed & developed to reflect & protect the interests of capitalism, patriarchy & eurocentrism
•        Enforcing inequality of power
CLS and Realism:
Realists also made claims about indeterminacy. But the two schools differ.
American realist method:
American realism is powerfully informed by a behaviouralist view of law. Llewellyn suggests that the focus of study should be ‘shifted to the area of contact, of interaction, between official regulatory behaviour and the behaviour of those affecting or affected by official regulatory behaviour’.
Comments on American realists:
The American realists exhibited a narrow empiricism: ‘a vast amount of energy was burnt up in the collection of data’. According to Hunt, empiricists believe incorrectly that the collection of data is a sufficient condition for the development of a social science method. ‘Data collection becomes an end in itself; it becomes a purposeless and undirected activity.’
Anyway, the realist challenge to the autonomy of law was certainly an important precursor of the critical legal studies and postmodernist approaches to law.
According to Twining’s view that the main achievement of the realist movement was to concretise sociological jurisprudence.

[ 本帖最后由 KennyYu 于 2008-8-28 10:33 编辑 ]

萨米

靠，该不该精华侍候呢？？？？

inspire

是原创就应该精华，虽然我看不懂

孤峰傲雪

不知道该怎么感谢楼主



我马上就要考TEST,       楼主能不能快点儿把PART TWO GOVERNMENT BRANCHES发出来啊！！！！！



THANK YOU SO MUCH!!!!!

albatross

哲学上与 positivistic 相对的是什么？？？？？？？？？