LAWS2249 Legal Theory CSG S2 2018 - Final PDF

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LEGAL THEORY LAWS2249 Semester 2 2018 https://programsandcourses.anu.edu.au/2018/course/LAWS2249

ANU College of Law +61 2 6125 3483 [email protected]

The Australian National University Canberra ACT 2601 Australia www.anu.edu.au

CRICOS Provider No. 00120C

THIS GUIDE CONTAINS IMPORTANT INFORMATION ABOUT THE COURSE. PLEASE READ IT CAREFULLY

LAWS2249 Legal Theory | Semester 2 2018

Course Description This course explores a number of important theoretical issues concerning law. These issues include the nature and function of law in modern societies, the nature of citizens' obligations under law, the nature of legal reasoning and the interpretation of legal texts, the relationship between law, power, justice and democracy and the capacity of the law to provide for gender, cultural and other forms of difference. The course proceeds by way of a critical examination of the leading contemporary schools of thought about law and legal issues. In the course of this examination, specific attention may be paid to the perspectives of these schools on such topical issues as civil disobedience, freedom of speech and indigenous sovereignty.

Mode of Delivery

In person

Prerequisites

To enrol in this course you must be studying a program which includes the Bachelor of Laws and completed or be completing five LAWS 1000 level courses.

Incompatible Courses

None.

1. Contact Information Role

Convener

Name

Moeen Cheema

Room

247

Telephone

6125 1139

Email

[email protected]

Consultation times

By appointment

2. Class Schedule Lecture 1

Lecture 2

Day: Monday

Day: Thursday

Time: 3-4 pm

Time: 3-4 pm

Room: Copland Building

Room: Copland Building

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See university timetable for times and locations of classes: http://timetable.anu.edu.au/

3. Texts and Materials The required readings for the course will be provided by way of an E-reading brick which will be available from the Law Library E-Reserve. A link to this site will also be provided on the course WATTLE site. Some students also find it useful to consult an introductory text book. There are a number of student texts. One useful book is Brian Bix, Jurisprudence: Theory and Context (Sweet & Maxwell: London, 7th ed,, 2015) which can be purchased from the Coop Bookstore on campus. Earlier editions of this book are also useful and available in the library and closed reserve. Recommended readings are suggested in relation to most lectures in the C o u r s e Reading Guide to be posted on Wattle . These may be of interest to students giving presentatio ns on a particular topic. Internet Resources: 

The Stanford Encyclopedia of Philosophy, Edward N Zalta (ed), available at: http://plato.stanford.edu/.

(A very useful resource, which has a number of entries relevant to this course.)

Other Introductory Textbooks: Other recommended introductory books include: 

Roger Cotterrell, The Politics of Jurisprudence (LexisNexis, 2 nd ed 200 3) (Cotterrell is a leading legal sociologist, and this well written and insightful book covers many of the issues covered in the course.)



Margaret Davies, Asking the Law Question (LBC, 3rd ed 2008) (This book takes an approach to jurisprudence informed by critical and postmodern theory.)

 

Denise Meyerson, Jurisprudence (Oxford University Press, 2011) Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 2015).

The following books are of general interest and are in the Library Reserve Collection:   

Ronald Dworkin, Law’s Empire (1986) John Finnis, Natural Law and Natural Rights (2011) L.L. Fuller, The Morality of Law (rev’d ed, 2006) The Australian National University | 2

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        

JW Harris, Legal Philosophies (199 7) HLA Hart, The Concept of Law (2012) Alan Hunt, (ed) Reading Dworkin Critically (1991) Valerie Kerruish Jurisprudence as Ideology (1991) David Lyons, Ethics and the Rule of Law (1984) Richard Posner, The Problematics of Moral and Legal Theory (1999) Nigel Simmonds, Central Issues in Jurisprudence (1986) Jeremy Waldron, e d, Theories of Rights (1984) Jeremy Waldron, Law and Disagreement (1999)

4. Preliminary Reading Students who wish to commence preparation for the course may read the required readings for the first two lectures. These are: 1. Susan Sturm & Lani Guinier, “The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity” (2007) 60 Vanderbilt Law Review 515. 2. Iris Marion Young, “The Ideal of Impartiality” in her Justice and the Politics of Difference (Princeton UP: 1990) pp.96-121. These will be available on the course WATTLE site before the commencement of the semester.

5. Course Description and Rationale The legal universe – the law – is comprised of more than merely legal rules. Understanding the law involves more than knowing those rules and the institutions and procedures in and by which the rules operate . An effective grasp of the law – wheth er as a law student, legal practitioner, or citizen – involves, in addition, an awareness of the underlying philosophical, moral, political, and economic discourses which inform the law and its operation in society. Understanding the law is not a simple matter. Law is complex and becoming proficient in it and with it is a significant intellectual and practical challenge. So far in your degree, you will have encountered courses which have focused in substantial part on understanding the rules of law. Torts and Contract are prominent examples of such courses. In addition, you will have encountered courses which have emphasised the history, socio-political context, and underlying discourses or ideologies of law. Foundations of Australian Law and Lawyers, Justice, Ethics are prime examples of this kind of course. And, of course, even in what we might term the substantive legal courses such as Torts or Contract, you will have considered issues to do with the historical, social and economic context of the various rules in question. This is because doing so enabled you to make better sense of the rules there. It enabled you to better understand those areas of law. Legal Theory is a course which is intended to supplement and further develop your understanding of the various areas of law and of the law at large, by offering you a sustained opportunity to further explore and critically reflect upon the nature, role, purpose and underlying assumptions of law and its many manifestations (judges, citizens, The Australian National University | 3

LAWS2249 Legal Theory | Semester 2 2018

officials, courts, prisons, Parliaments, rules, principles, rights, and duties, for example). It is a course which considers law - with a little distance, perha ps - as something which forms an important part of the world at large: as something which interrelates with and affects individual lives, socio-cultural groups, moral and religious beliefs and practices, political institutions, economies, financial systems, the natural environment and more. Legal Theory seeks to provide you with some additiona l resources – conceptual, theoretical, critical, and practical - to make better sense of law in all its complexity and mystery. In this regard, again, it does no more than supplement the o ther courses which make up yo ur law degree here at the ANU. Because there is so much that could be theorised about in la w, and because there is so little time in a semester, the course necessarily takes a specific and circumscribed trajectory through the legal world, with the aim of giving students a sense of how the law in any sphere might be critically thought about. This course explores, then, issues to do with the relationship between law, morality, politics and power; with the nature of legal reasoning and adjudication; and with the nature of rights and democracy and their relationship to law. In doing so it seeks to familiarise students with a number of influential schools of thinking about law – positivism, democratic liberalism, socialism, feminism, and postmodernism. Notwithstanding the boundaries of the course, though, students are encouraged to extend their thinking and reading and arguing into other realms of law and theory. For many, this course is an exciting and influential one. Work hard and – as best you can – enjoy.

6. Learning Outcomes By the conclusion of this course, students who have successfully completed all of the requirements will have the knowledge and skills to: demonstrate a familiarity with and understanding of those key thinkers about law and legal systems covered in the course; 2. demonstrate a familiarity with and understanding of the main types of descriptive, justificatory and critical argumentation about law and legal systems; 3. engage in an improved form of reflective and critical thinking about the law and legal reasoning; and 4. appreciate the theoretical background of a range of legal decisions and contemporary legal issues.

1.

7. Course Content Week

Lecturer

1

Cheema

Introduction to Legal Theory

Cheema

Thinking About Law I: Law and Politics

Topics

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2

3

4

5

6

7

8

9

10

Manderson

Thinking About Law II: Law and Art

Manderson

Thinking About Law III: Law and History

Neoh

Early Legal Positivism

Neoh

Contemporary Legal Positivism

Manderson

The Hart/Fuller Debate – I

Manderson

The Hart/Fuller Debate – II

Neoh

Dworkin’s Anti-Positivism

Cheema

Theories of Common Law

Macduff

Foucault, Power and Law

Macduff

Feminist Legal Theory

Cheema

Theories of the Rule of Law

Cheema

Mythology of the Rule of Law

Cheema

Judicial Dissent and Unjust Laws

Cheema

Rule of Law in the Global South

McDonald

Rights Discourse and its Critics – I

McDonald

Rights Discourse and its Critics – II

McDonald

Minority and Group Rights – I

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11

12

McDonald

Minority and Group Rights – II

McDonald

Democracy and Constitutional Rights

McDonald

Bills of Rights and Judicialization of Politics

Cheema

Introduction to Legal Theory

Skills In this course you will have the opportunity to continue to develop the following skills: 1. Oral communication 2. Written communication 3. Legal and general research 4. Critical thinking 5. Legal and general argument 6. Creative thinking 7. Working independently You will be provided with opportunities to develop each of these skills over the course of the semester and you will be assessed in relation to each of them within both the seminar program and final exam.

8. Teaching and Learning Approach and Activities Effective learning in this course will be achieved by a combination of: 1. Reading, analysing and critically reflecting upon the required readings each week together with recommended and other related written and online materials where appropriate; 2. Critically reflecting upon a nd engaging with the ideas and discussion generated in course lectures; 3. Participating in weekly seminars, including critically reflecting upon and engaging with the seminar presentations of your peers; 4. Engaging in informal discussion with your peers and others about the issues and ideas encountered in this course.

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Readings This is a reading, thinking and arguing co urse. The parameters of the cou rse are defin ed by both the required reading and the lectures. The Course Reading Guide (which will be provided on the course WATTLE site) indicates both the required and recommended readings for the topics covered in each lecture. All students should read the required readings for a lecture prior to that lecture. In addition, you should seek to read as much as you can of the recommended reading for a lecture, as well as relevant parts of those general legal theory texts listed below. The list of texts and other materials relevant to the course is also provided later in this Course Outline.

Lectures/Seminars There are two one-hour lectures per week. Again, lecture times and venues are:  

Lecture A – Monday, 3-4 pm, Copland Building Lecture B – Thursday, 3-4 pm, Copland Building

Lectures will attempt to deepen your understanding of issues raised by the required readings a nd to place those issues and readings in a wider context. Lectures will, where appropriate, be interactive. You will be advised in advance whether any particular class discussion or activity is planned so you can adequately prepare. (Again, you should read the required readings prior to attending class.) Digital recordings of lectures together with relevant PowerPoint slides will be made available on the course WATTLE site as soon as practicable after those lectures.

Seminars (Tutorials) Seminars will attempt to broaden and deepen your understanding of issues raised by the required readings and the lectures. They will give you an opportunity to engage with these issues through listening to, commenting upon, and asking questions about short oral presentations given by your student colleagues on topics related to these issues. The seminar program is a very important part of this course. Attendance at seminars is compulsory and will be assessed. The o ne hour seminars begin in We ek 2 and continue throughout the semester up until and including Week 12. Beginning in Week 3, seminars will involve student presentations. Further information on the seminar program and the expectations in relation to student presentations and participation can be found below.

Seminar Enrolment (Please read this section carefully) Enrolment in seminars will be via the course Wattle site and will open in the first week of semester. Enrolment will open at 9 am on Tuesday 24 July and close at 5 pm on Friday 27 July. Seminar groups will meet weekly as arranged. The first meeting, during week 2, will involve the allocation of seminar topics and some introductory discussion. It is very important that students attend the first seminar in week 2 so that they are a llocated a topic for their presentation. The Australian National University | 7

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The 10 seminars from weeks 3 through 12 will each involve no more than two student oral presentations, each of them related to one of the topics of the previous week’s lectures (for example, in the Week 6 seminars the students will give presentations related to the two topics covered in the lectures in W eek 5). These presentations should be 5-7 minutes in duration. Presenters will then be expected to participate in a discussion of their presentation with the rest of the group. It is the responsibility of students to ensure that they are enrolled in a seminar group by week two and that they have been allocated a topic and date of presentation at the week two seminar. Students who fail to comply with this requirement without good reason may be given 0 in the seminar presentation In cases where students submit essays without having arranged or given a seminar presentation the essays may receive no marks. There are strictly limited places in each seminar group; it will not be possible to overenrol particular seminar groups. This is because no more than two students can present each week. If you can only make a limited number of seminar times, it is your responsibility to make sure you enrol early to secure a position. It is important to attend the first seminar (Week 2 ) so you are allocated a presentation topic. Topics will only be allocated to students who have successfully enrolled in a seminar group. During the semester, students who attend an alternative seminar to the o ne they are enrolled in without the prior written authorisation of the seminar convenor will be taken to be absent for that week. Authorisation will only be granted on medical or other serious grounds and must be organised with the convener. It is the responsibility of each student to ensure th at they are marked as present for the seminars they attend. This is particularly important for students who arrive late at a seminar. Students who arrive late should ensure at the end of the seminar that they have been marked as present.

9. Study requirements and expectations This is a course in reading, thinking and arguing. Effective participation in this course requires around 7 hours of reading each week. In order to take better advantage of the discussion which will occur in lectures and seminars, you should read the required readings for the week prior to attending class. In addition, you should seek to read as much as you can of the recommended reading for the week. Students seeking some background to the topics and readings may also find it useful to read relevant parts of the general legal theory texts listed below. Students are expected to prepare for both lectures and seminars and to engage critically in the discussion that takes place there. It is, in part, by means of such engagement and the feedback you get from that that you will be able to evaluate and enhance the quality of your learning of the course content and skills. To further enhance your learning in this course you may also find it useful to regularly access the course WATTLE site and participate in the online discussion there.

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Research-Led Teaching This content of this course reflects and is informed by the research currently engaged in by your lecturers in legal theory, political philosophy, and public law.

10. Assessment The ANU is using Turnitin to enhance student citation and referencing techniques and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. For additional information regarding Turnitin please visit the ANU Online website: http://online.anu.edu.au/turnitin. Students may choose not to submit assessment items through Turnitin. In this instance you will be required to submit, alongside the assessment item itself, copies of all references included in the assessment item.

LLBHONS STUDENTS SHOULD NOTE THAT THE CONSEQUENCE OF RECEIVING AN NCN IS THAT A MARK OF 0 WILL BE USED FOR THE CALCULATION OF THEIR FINAL HONOURS GRADE.

ANY CHANGES TO SUBMISSION METHODS WILL BE ANNOUNCED ON WATTLE

Assesment summary Assessment Task

Value/ Weighting

Due Date

Approx Return Date

Related Learning Outcomes

1. Seminar participation

10% of final mark

In all seminars

Preliminary feedback in week 6, final feedback upon request, two weeks after the end of...