Law and Society – Semester 1 2011
Topic 1 – Critical Thinking
Criteria for Judgement;
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Reasonableness - Challenging an arguments assumptions and validity of reasoning. Is there
reliable evidence? Are the conclusions logical?
Objectivity – The bias in making a claim. Does the person making the claim have a vested
interest in that claim being accepted?
Consistency with ideological standards or ideals – Is a phenomenon consistent with a
particular ideological standard. For example, a girl moving in with her boyfriend in terms of
its consistency with Christian ideals. In what way is a phenomenon consistent/inconsistent
with the aforementioned standards?
Consistency with theoretical standards – (An extension of the previous criteria) – Involving
the comparison/contrast of one set of ideals beliefs to that of another set. Is the theory of
evolution consistent with theories regarding Darwinism? Would a Christian priest agree with
this claim?
Fairness and Equity – Is a decision fair? Is it just? Is everyone treated equitably?
Three main categories of criteria for judgement by a critical thinker in law;
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Consistency with legal authority
Consistency with theoretical, ideological and ethical standards; and
Equity of outcome
Consistency with Legal Authority
Is a judgement “correct” in terms of its consistency with statutory or case law authority? Is an
argument based on correct understanding and application of legal authority?
Consistency with Theoretical, Ideological and Ethical Standards
It is the critique of legal claims, arguments, rules, decisions, doctrines etc… based upon frameworks,
such as;
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Legal/political standards like rule of law, or doctrine of separation of powers
Jurisprudential frameworks such as positivism or natural law theory
Feminism or Marxism, etc.
Liberal standards, liberty, justice, rights and utility
Frameworks of other disciplines such as sociology or economics
Ethical models and professional codes
All these involve a contextualised understanding of the law. Challenging assumptions about what the
law is.
Jonathon Black 2010
Consistency with Equity of Outcome
Considers the political and social consequences of legal decisions and that the law can be used to
oppress and be a source of injustice.
Critical Thinking in terms of Legal Arguments
Remember to! Penetrate the surface of the argument, uncover its hidden structure, unstated
assumptions, vested interests involved, faulty premises and generalisations.
– Critical Skills
The six critical skills;
1. Interpretation – Understanding the surface meaning of a claim or statement. How it is
intended to be understood.
2. Analysis – Understanding the hidden elements and structures of a claim or statement and
how these contribute to the overall meaning of it. Identify the reasons presented for a
stance, any bias, and any assumptions made.
3. Evaluation – Judging and object of critique based on an explicit criteria, for example in terms
of its truthfulness, legal precedent, or consistency with social norms.
Look at the reasons for and against the claim being made, both within the claim and
externally.
4. Inference – Identifying a reasonable and justifiable conclusion about the object of critique
based on facts, evidence and the result of our own interpretation, analysis and evaluation.
Identify the consequences of the conclusion.
5. Explanation – Being able to effectively communicate my conclusion.
6. Self-Regulation – Critically think about our own thinking. Has bias/assumptions affected our
judgement?
Jonathon Black 2010
Legal Arguments
A sound argument is where it is impossible to accept the premises and not the conclusion.
A valid argument is a sound argument where all the premises are true.
Jonathon Black 2010
Two Important Legal Rules!
According to the literal rule, we should always begin by reading a legal text literally, with words and
phrases given their ordinary and natural meanings. (Fisher v Bell)
One exception to the literal rule is the class rule. According to the class rule, where two or more
specific words are followed by a general word, the general word is limited to the class created by the
specific words. (DPP v Farrell)
Faulty Thinking
1. Attacking the person (argumentum ad hominem): Judging/criticising the person making the
claim rather than the claim itself. Islam is wrong; it is advocated by terrorists!
2. Appeal to authority (argumentum ad verecundium): Seeking to establish the truth of a claim
by pointing to the authority of the person making the claim.  Eating meat is unethical, my
law lecturer says so.
3. Appeal to majority (argumentum ad populum): Seeking to establish the truth of a claim by
pointing to the number of people who believe it.  Global warming is no longer a threat;
most people now believe that the climate is cooling.
4. Affirming the consequent: If P then Q. Q. Therefore P. This is only acceptable if and only if P
then Q. X could only commence legal proceedings if she qualified for legal aid. She hasn’t
commenced legal proceedings, so she must not have qualified for legal aid.
5. Straw man argument: Judging/criticising a distorted version of your opponent’s claim.
 The people protesting President Obama’s visit to Australia are just another bunch of UShaters.
6. Correlation and causation (cum hoc ergo propter hoc): Insisting that a correlation between
two variables means that one has caused the other.  There have been a decreased number
of pirates world-wide in the past century. Global temperatures have risen in the past century.
Therefore, a decrease in pirates has led to an increase in temperature.
Jonathon Black 2010
Topic 4 – Legal Education
Legal education in universities from the 12 century, doctrinal approach. Those who studied law not
likely to become lawyers.
In Australia, vocational, on the job training until late 19th century.
In order to improve credibility of legal professionals government intervened, leading to the
controversial decision to make it necessary for university education to become a lawyer.
↓
Vocational focus, teachers mainly themselves lawyers who gave lectures in evenings, students did
clerkships at the same time.
Post WWII pressure from government to a more academic focus of legal education, perceived
inadequacy of the profession compared to other countries.
- Teaching of law in distinct areas, such as contracts, torts, and identifying the underlying
doctrines, thus doctrinal approach. (Context of law not important, so political and social factors not
considered at university).
- Doctrinal approach also emphasised the difference between law and any other discipline,
thus strengthening its position in the university.
The Pearce Report 1987 and Onwards
Law schools flawed, dreary programs, terrible teachers.
Need for more emphasis on vocational approach, not simply doctrinal as had been the case.
Also part of the rise of corporatism in legal education, with focus on graduate outcomes and desires
of employers. University degree seen as a product, with students being the consumers.
Increased pressure to be profitable due to decreased government funding has led to focus on
marketability and expense of courses. Trend towards closer ties between the profession and
universities once again, with teaching staff practitioners and sponsorship.
Differing views if current trend is good or bad. See p 76-77.
Jonathon Black 2010
Four Different Approaches to Teaching Law
Doctrinal Approach - p78
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Positivist, legal system works independently of other considerations.
Focus on the doctrines underlying the law. What the law is.
Traditional method of teaching and dominant one in Australia.
Various reasons for its dominance, p 80.
Vocational Approach – p80
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Teaches students how to be lawyers, more so than what the law is.
Key focus of law schools today along with Doctrinal approach, trend since the 1980’s.
Emphasises critical thinking within the scope of employment. Thinking about an opponent’s
arguments, etc. Not regarding the law itself.
Liberal Approach – p82
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Emphasis on broad education, considering law within its societal context.
Focus on freedom for both students and teachers in education.
Development of independent skills with the view that education should be ongoing
throughout life.
Critical thinking regarding the law against values such as liberal standards of rationality,
fairness and equality.
Growing importance, but still marginalised compared to doctrinal and vocational
approaches.
Radical Approach – p85
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Challenges what the law is, sees the law as a tool of injustice that must be reformed.
Considers the underlying biases and inequalities of the law.
Many different ideologies can underlie a radical approach, so many different criteria for
judgement of the law.
Huge emphasis on critical thinking about the law.
Very marginalised in Australia, due to variety of factors.
Jonathon Black 2010
Topic 5 – Jurisprudence
“What is law?” and “What makes a law a valid law?”
Natural Law Theory
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Emphasises the relationship between the law and external values.
Universally and objectively good things and bad things. The law should reflect this.
Murder is not wrong because we think it is wrong, it simply is wrong.
Can be used as a standard against which positive law can be judged. Authority of law is
derived from its compliance with objective and universal values of right and wrong.
Common traditional view, Lex injusta non est lex “An unjust law is not law.” Cicero
Therefore, positive law that incompatible with natural law not a law.
Thomas Aquinas | 1225-1274
All human laws can be judged in terms of their conformity with natural law. Any human law that is
inconsistent with natural law is not really law at all.
A well-made human law is derived from the law of God, and commands obedience accordingly.
Natural Law theory based on Christian values, limits lawmakers ability to make law, but gives law
that is compatible with this greater authority.
Hobbes
Natural law is a set of rules that all humans strive to live by, the only way this can be achieved is by
giving power to the sovereign, who’s decisions need not be grounded in morality. This leads to legal
positivism.
John Locke | 1632-1704
If the sovereign goes against natural law and fails to protect ‘life, liberty and property’, the people
are justified in overthrowing the existing state and creating a new one.
John Finnis | 1940Law is a set of rules that are ideally derived from and evaluated against a set of universal moral
standards.
Finnis identifies seven intrinsically valuable basic goods: life, knowledge, play, aesthetic experience
or beauty, sociability or friendship, practical reasonableness, and religion.
By applying practical reasoning to these basic goods, we can derive a set of general moral standards.
(Things that promote them are “good”, things that act contrarily to them are “bad” in a natural law
sense).
An unjust law (a law inconsistent with the natural law) is legally binding, but is not fully law, and an
individual may be justified in choosing not to obey such a law. However, circumstances may demand
that an unjust law be obeyed because to disobey it would weaken the legal system as a whole.
Jonathon Black 2010
Critique of Natural Law Theory
Are there universal standards of morality and justice?
Who decides what they are?
Legal positivism
The appropriate subject of Jurisprudence, in any of its different departments, is positive law:
Meaning by positive law (or law emphatically so called), law established or "positum", in an
independent political community, by the express or tacit authority of its sovereign of supreme
government.
- John Locke
Legal positivists insist that we should focus not upon what the law ought to be, but upon what the
law is. Rules, doctrines, statutes, etc.
Law is created by human beings; it is part of society and does not transcend it (‘the social thesis’).
(Not universal as in Natural Law Theory)
There is no necessary connection between law and morality (‘the separation thesis’).
Jeremy Bentham | 1748-1832
There is a distinction between;
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expositors, who explain what the law in practice is, and
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censors, who criticise the law in practice and compare it to their notions of what the
law should be.
The purpose of the philosophy of law is to explain the real laws of the expositors not the criticisms of
the censors. What it is, not what it “ought” to be.
John Austin | 1790-1859
Command theory: Law is a set of commands from a sovereign that are backed by a threat of
sanction.
A sovereign is someone who is habitually obeyed and who does not themselves obey a superior.
“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.”
(What the law is and whether it is right/just are two different and distinct things  Opposite to
Natural Law Theory).
Jonathon Black 2010
Hans Kelsen | 1881-1973
Law is a scientifically rational system of coercive norms that form a hierarchy.
A norm is a statement about the way a person should behave.
Each norm is validated by a superior norm.
The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest
basic norm. But what is the Grundnorm  Basis of laws, a hypothetical thing.
Eg, parking regulations  parking legislation (statute)  Australian constitution  British
Parliament  Grundnorm
HLA Hart | 1907-1992
To classify all laws as ‘coercive orders’ or as ‘moral commands’ is to oversimplify the relation
between law, coercion, and morality.
Law is a system of primary and secondary legal rules which derive their legitimacy from an ultimate
rule of recognition.
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A primary rule is a rule of conduct; it tells us what we can or can’t do and the
consequences of disobedience. Eg, a contract.
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A secondary rule regulates the creation, extinction, and alteration of primary rules.
Eg, how a contract can be formed.
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The rule of recognition determines the ultimate validity of a primary or secondary
rule; it derives its own validity from being accepted and adhered to by legal officials.
Eg, parliament, judges determine what the law is.
Law should have a minimum moral content to encourage adherence (but not necessarily).
(The more consistency the law has with society’s ideals the more likely society will accept and
adhere to it).
Critique of Legal Positivism
Is it appropriate to consider law in isolation from the rest of the world?  It functions within society.
How do we judge law? How do we inspire reform?  View that the law simply is what it is means
people are discouraged from questioning its operation.
Jonathon Black 2010
Economic analysis of law
EAL is the application of economic theories and principles to law and legal processes, and is based on
the notion that law can and should be judged according to economic values.
Not necessarily a philosophy, but a commonly applied process in law-making.
‘Economics’ is an approach to understanding behaviour based on the assumption that individuals
behave rationally, i.e. they have objectives and tend to choose the correct way of achieving them.
(They want to achieve the most beneficial outcome for themselves).
Example: Locks on doors  Won’t actually stop someone breaking in, but acts to increase the “cost”
of breaking in, as it’s more likely a burglar will get caught… so they are less likely to try and break in if
they’re rational.
The legal system is a system of incentives and disincentives.
Need to set disincentives correctly to stop people from behaving in a way that is detrimental to
society.
Example: Burglary, incentive is to get things easily and for free; disincentive is likelihood of going to
jail for burglary.
The objectives of EAL include:
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the assessment of particular legal rules; and
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guiding legislators and judges in making legal rules (or at least choosing between
alternatives). (Need to find equilibrium, as if penalties are too harsh then nothing to
stop a person for say, killing everyone to avoid capture in armed burglary).
The ideal of law is efficiency: A legal rule or process is said to be efficient if the overall economic
benefits of the rule or process exceed the overall economic costs.
Critique of Economic analysis of law
Can we assume that all people behave rationally?  Probably not
Is it appropriate to evaluate possible outcomes in terms of dollar value? Is ‘maximising wealth’ the
most important objective?  What about justice!?
Jonathon Black 2010
Topic 6 – Liberalism
Law is not ideologically neutral. The ideological foundation of Australia’s legal system is liberalism.
Liberalism emphasises individual freedom and individual rights, private property, equality, rationality
and utility.
It can be contrasted with other ideologies such as:
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absolutism or totalitarianism;  Rule of Leader
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anarchism;  No law
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socialism, communism, communitarianism  Good of society, not individual.
The structure of modern law in Australia was formed during the middle part of the 19th century
when classical liberalism was dominant.
The impact and influence of liberal ideology is not always explicit, and liberal values are often
represented as universal truths. (Grow up with them in Australia and naturally accept them).
Liberal values
1 | Individual liberty
Liberalism emphasises the inherent liberty and freedom of the individual.
Choose own path, subject to limitations of the law, which vary under;
Negative liberty: Freedom from interference; the state is under no obligation to actively help us.
Law exists only to stop us from infringing on other’s rights.
Positive liberty: Freedom to better oneself; the state has an obligation to provide assistance in
making opportunities available to all. Interference is okay if for benefit of individual.
Domestic liberty: It is appropriate for the state to regulate our ‘public’ lives but not our ‘private’
lives.
Economic liberty: People should be free to trade goods, services and labour within the framework of
a minimal set of laws to protect property and so forth; beyond that, the state should have no role.
2 | Individual rights
The 17th and 18th centuries saw the emergence of the popular belief that all people are born with
natural rights to life, liberty and property.
In the 19th century, the idea of ‘natural’ rights was replaced by the idea that rights are derived not
from nature or religion but from the fact that those rights are granted by legal rules.
Individualism: It is our liberty and our rights as an individual that liberalism seeks to protect.
Society is an association no greater than the sum of its individual parts, thus individual rights are
fundamental for society.
Jonathon Black 2010
3 | Private property
The notion of private property is central to liberalism. Common justifications for private property
include:
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first occupation theory  First in best dressed.
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labour theory  Entitled to fruits of our labour
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economic efficiency theory  Take care of what we own, whereas don’t do so for
other’s or communal property, thus resources are more efficiently utilised.
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social utility theory  It is fulfilling to own goods.
4 | Equality
Formal equality (or procedural equality) refers to the equal treatment of individuals before the law.
Regardless of any differences.
Substantive equality (or equality of opportunity) is the notion that legal rules should take account of
differences in the backgrounds, characteristics and circumstances of individuals in order to avoid
outcomes that are unfair. (Formal equality can lead to substantive inequality).
5 | Rationality and utility
The central idea of utilitarianism is that acts can be judged solely by their utility, where utility is
measured in terms of overall effect on human welfare.
Act utilitarianism: We tally the consequences of each action we perform in terms of the overall
pleasure or pain caused, and thereby determine on a case by case basis whether an action is morally
right or wrong.
Rule utilitarianism: A behavioural code or rule is morally right if the consequences of adopting that
rule are more favourable than unfavourable to everyone.
How can utility be measured accurately? Are we really all pleasure seekers?
Can lead to odd results  Stealing a loaf of bread from Woolies example.
Utilitarianism and individual rights often conflict. Liberalism favors
utilitarianism.
6 | Justice
Distributive Justice – Resources should be fairly and properly distributed, and the law should ensure
this. Either egalitarianism where everyone gets the same amount, or desert theory where
need/outcome should be used to determine provision or total welfare should be maximized
(Utilitarianism).
Retributive Justice – “proper” response to a wrongful act. Either utilitarian, overall welfare should
be maximized, or desert theory determined by what offender/victim deserves.
Procedural Justice – Fair hearings are paramount, thus the legal system has built in safe-guards.
Jonathon Black 2010
Neo-liberalism
Neo-liberalism, also known as ‘market liberalism’, is an ideology concerned primarily with the
governance of those engaged in commerce.
It emphasises the primacy of the individual and favours a minimal role for government; it
recommends reliance on market forces to allocate resources.
The core values of neo-liberalism are:
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individualism;
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market freedom; and
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wealth maximisation.
Corporate regulation is a disciplinary mechanism dominated by neo-liberalism.
Wealth maximisation is apparent in the notion of the company as a ‘profit making machine’.
Individualism is apparent in the notion of separate legal personality, and the obligation upon
directors to act in the best interests of the company.
Market freedom appears as corporations law simplification programs and limited liability.
The dominance of neo-liberalism has both positive and negative consequences.
Investors benefit from wealth maximisation (return on investment) but are disadvantaged by market
freedom (lack of restraints on directors).
Consumers benefit from market freedom (competition and lower prices) but are also disadvantaged
by market freedom (price fixing, monopolies).
(Is more consumption a good thing anyway?)
Directors benefit from wealth maximisation and market freedom (high salaries and self dealing).
They are encouraged by the law to become ‘wealth maximising, individualistic entrepreneurs’, and
the law rewards and protects entrepreneurial directors.
Advocates of neo-liberalism claim it benefits most or all members of the community: free markets
lead to efficient production which generates collective prosperity.
Critics say ‘trickle down’ economics is overly simplistic, and there is no evidence of that neoliberalism maximises collective wellbeing.
Resistance could undermine the dominance of neo-liberalism, but the community is distracted and
appeased.
Jonathon Black 2010
Topic 10 – Law, Gender and Race
Law and Gender
Useful facts!
In 2011, Australian women in full-time paid work will earn on average only 84% of what men will
earn. (This amounts to $1m less over a lifetime.)
Australian women are now more likely to have tertiary qualifications than men. However, on
average women graduates will earn $2000 pa less than male graduates and $7500 pa less by the fifth
year after graduation.
In law, women now make up approximately 56% of all graduates but only 38% of practitioners.
Women are more likely to be among the top graduates, but are more likely to be employed in junior
positions.
In Australia’s top 200 ASX companies, only 2% have female CEOs and only 8% of board directors are
women. Over half of the companies have no women board members.
Overall, women in senior management earn only 58% of their male counterparts.
Only 34% of managers in Australia are women, while approximately 70% of workers in lower paid
community, administrative and sales positions are women.
Over 70% of secretaries and personal assistants, 66% of teachers, and 80% of workers in health and
community services are women.
Women workers predominate in ‘precarious’ forms of work. One third of women workers are
employed as casuals, through agencies, seasonally or from home and they are often part-time.
These forms of work do not have the same level of legal protection as full-time work.
Women are more likely to engage in unpaid work. Full-time employed women who are mothers
spend 50% of their hours of work doing unpaid house work and childcare, whereas full-time
employed men who are fathers spend 29% of their hours of work doing unpaid work.
The total value of unpaid work to the Australian economy is about $261 billion, of which 91%
constitutes unpaid household work, two thirds of which is done by women.
Women are more likely to experience discrimination and harassment in the workplace. In addition to
wage inequality, they are more likely to experience discrimination in selection or promotion because
they have caring responsibilities, and are more likely to be subjected to sexual harassment.
Jonathon Black 2010
Anti-discrimination legislation
The Sex Discrimination Act 1984 (Cth) prohibits discrimination in the workplace on the grounds of
sex, marital status, pregnancy, or family responsibility.
The Anti-Discrimination Act 1991 (Qld) prohibits discrimination in the workplace on a number of
grounds, including sex, relationship status, pregnancy, parental status, breast feeding and family
responsibilities.
The legislation recognises that discrimination may be direct or indirect.
Direct discrimination is when someone is treated less favourably than another on the basis of their
sex, or a characteristic pertaining to their sex.
Indirect discrimination is when an apparently neutral rule or requirement serves to disadvantage
members of a group, such as women.
Direct discrimination
In Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8, Deborah Wardley
successfully challenged a decision by Ansett Airlines to refuse her employment as a pilot. She
became the first woman in Australia to fly as a commercial airline pilot.
Indirect discrimination
In Australian Iron and Steel v Banovic [1989] HCA 56, 34 women complained to the NSW Antidiscrimination Board that a steel company had refused to hire them on the grounds of their sex. The
complaints were conciliated and a number of women were hired. However, soon afterwards, there
was a downturn in the industry and the most of the women were retrenched on the basis of a ‘last
on, first off’ policy. The court found that the policy discriminated against them, both directly and
indirectly.
Individual complaints are resolved through confidential conciliation. Only when this is unsuccessful
may a complainant pursue a case to a tribunal or court.
Even where discrimination is perceived, actually making a complaint is a risky business. Many
employees will decide to put up with the women-hostile or family-hostile environment in which they
work to maintain a career or even just to remain employed. They may feel as individuals they are
strong enough to manage any gendered treatment, they may have concerns about job security and
ongoing employment, and/or they may fear reprisal. Those who do complain of discrimination have
typically reached a point where the workplace disadvantages or detriment they experience in trying
to balance their work and family responsibilities are sufficient enough to threaten or preclude their
ongoing employment. But such complaints do not occur in a vacuum.
-
Hilary Charlesworth
Jonathon Black 2010
Sex Discrimination Act 1984 (Cth)
28A Meaning of sexual harassment
•
For the purposes of this Division, a person sexually harasses another person (the
person harassed) if:
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the person makes an unwelcome sexual advance, or an unwelcome request
for sexual favours, to the person harassed; or
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engages in other unwelcome conduct of a sexual nature in relation to the
person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances,
would have anticipated that the person harassed would be offended, humiliated or intimidated.
Anti-Discrimination Act 1991 (Qld)
119 Meaning of sexual harassment
1) Sexual harassment happens if a person—
All based on perspective of
harasser, not victim.
Biased against the victim.
a) subjects another person to an unsolicited act of physical intimacy; or
b) makes an unsolicited demand or request (whether directly or by implication)
for sexual favours from the other person; or
c) makes a remark with sexual connotations relating to the other person; or
d) engages in any other unwelcome conduct of a sexual nature in relation to
the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—
a) with the intention of offending, humiliating or intimidating the other person;
or
b) in circumstances where a reasonable person would have anticipated the
possibility that the other person would be offended, humiliated or
intimidated by the conduct.
Anti-discrimination law does not end the actual subordination of women in the market but instead
mainly benefits a small percentage of women who adopt ‘male’ roles. Meanwhile, it legitimates the
continued oppression of most women: the reforms maintain the status quo by particularising and
privatising inequality and encouraging women to blame themselves for failures in the market. … It
obscures for women the actual causes of their oppression and treats discrimination against women
as an irrational and capricious departure from the normal objective operation of the market, instead
of recognising such discrimination as a pervasive aspect of our dichotomised system.
- Olsen (1983)
Jonathon Black 2010
Affirmative action legislation
The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 was designed to
provide avenues to address structural inequalities brought about by patterns of employer behaviour
which disadvantaged women.
However, it has always had limited application, applying only to large employers and functioning on
the basis of voluntary reporting.
The legislation was later revised and renamed the Equal Opportunity for Women in the Workplace
Act 1999. Its scope was dramatically reduced and it is now qualified in application.
Unequal pay
The common law has played a role in entrenching pay inequality by constructing a definition of a
‘worker’ in labour law based on a masculine subject.
The concept of the ‘family wage’ was first established by the Australian Conciliation and Arbitration
Court in Ex parte HV McKay (1907) 2 CAR 1 (the ‘Harvester’ judgment). In this case, the Court
decided that a ‘fair and reasonable wage’ was the amount a man needed to support himself, his wife
and three children.
In Rural Workers’ Union v Mildura Branch of Australian Dried Fruits Association (1912) 6 CAR 62 (the
‘Fruitpickers’ case), the Court noted that a man has an obligation to support his family, but women
have no such obligation. It decided that in this case women were entitled to equal pay for the same
work but that employers were free to hire either men or women and to pay different rates for
different types of work. It also noted that some types of work was more suited to women and could
therefore be paid at a lower rate.
Until at least the 1960s, many industry awards specified a different salary level for men and women.
In many sectors, women were required to leave employment when they got married.
The common law has reinforced a marginal status for women in paid employment, suggesting that it
is something they might only do as an aside to their primary role as wife and carer. In particular,
women’s role as parent is seen to be in competition with her participation in the workforce, whereas
this is not considered to be the case for men.
Many a married woman seeks work. She does so when the children grow up and leave the house. She
does it, not solely to earn money, helpful as it is, but to fill her time with useful occupation, rather
than sit idly at home waiting for her husband to return. The devil tempts those who have nothing to
do.
Langston v AEUW [1974] 1 All ER 980 at 987
[There] is a tendency to treat women’s paid work as marginal, as worthy of comment, as requiring an
explanation, rather than as something that adult gender neutral people just do. The judgements
often provide an explanation for why a woman works, coupled with an underlying assumption that
should the particular reason given for her employment disappear she would no longer engage in paid
work. - Regina Graycar
Jonathon Black 2010
The public sphere, mediated through law, has enabled benchmark men to construct normativity, like
God, in their own image. The seeds of invidiousness associated with the domestic sphere attach to
women, who have been marked as its indigenous inhabitants. The stigmata of affectivity continue to
detract from the rationality and authority of women and others in public office. Conventionally, a
‘public woman’ was a prostitute, a figure of derision, in contrast to a ‘public man’, a figure of
approbation who acted in and for the universal good. This signification helps us to understand why
benchmark men continue to dominate the most powerful institutions of the public sphere, including
parliaments, courts and universities. It also helps to explain why some women and ‘others’ seek to
enhance their authority by assuming the characteristics associated with benchmark men.
- Thornton
Feminism
Feminism is both a political movement and an ideology.
The objective of feminism is to expose and bring about the end of unfair discrimination against
women by exploring the ways in which this discrimination manifests, and considering why it occurs
and how it can be prevented.
Liberal Feminism
Liberal feminism calls for the recognition of women’s rights paralleling the rights of men in liberal
society; that is, ensuring that the liberal ideal of equality extends to women.
Liberal feminists believe in the capacity of law to achieve justice. They seek to reform laws that limit
access by women to education, jobs, property ownership and participation in political life.
Formally, many of the aims of liberal feminism have been achieved in Australia.
Liberal feminists have successfully fought for women’s: right to vote, own property, make contracts,
litigate and remain employed after marriage.
Liberal feminists now focus upon achieving substantive equality for women.
Difference feminism
According to difference feminism, there is a distinctly feminine way of approaching moral and legal
problems.
Whereas liberal feminism focuses upon the equality of men and women, difference feminism
focuses upon the differences between the sexes.
Some difference feminists argue that women have distinctive values which are relational and are
based on an ethics of care, whereas male ethics tend to be rule based.
Difference feminists argue that law tends to favour a male-oriented approach to ethics and justice.
Jonathon Black 2010
Radical feminism
Radical feminists insist that oppression on the basis of sex is the most fundamental source of
inequality in society, and manifests in the form of ‘patriarchal structures’: political structures,
industrial organisations, religious establishments etc.
Radical feminists argue that the institutions of law and the state reflect and reinforce male power.
They seek more than mere legislative reform; rather, they seek a radical transformation in the
relationship between the sexes.
Radical feminism also claim that many women suffer from false consciousness – the messages which
dominate society blind them to the reality of their oppression – and therefore engage in
consciousness raising.
Postmodern feminism
Postmodern feminism also examines the ways in which language and reasoning construct (and not
merely reflect or describe) gender and sexual equality.
It claims that other forms of feminism tend to ‘essentialise’ women’s experience, suggesting that all
women experience oppression in the same way, on the basis of sex.
Postmodern feminism is critical of the absence of race in understandings of women’s oppression and
the use of white, middle-class heterosexual women as the model for all women.
It argues for recognition of diversity and an understanding of oppression through intersectionality –
the combined effect of oppression on the basis of sex and race.
Law and Race
Race is a human construct, skin colour doesn’t distinguish the human species into different races.
Anti-discrimination legislation
The United Nations International Convention on the Elimination of All Forms of Racial Discrimination
was passed in 1966.
According to the Convention, racial discrimination occurs if a person is, or a group of people are:
•
treated less favourably because of their race, their colour, descent, national origin or
ethnic origin, and
•
because of this less favourable treatment they are stopped from fully enjoying their
human rights and their fundamental and basic freedoms.
Australia ratified the Convention on 30 September 1975, and the Racial Discrimination Act 1975
(Cth) commenced on 31 October 1975. All state and territories also have anti-discrimination
legislation.
The legislation prohibits racial discrimination in a range of areas, including the workplace, education
and goods and services. As with sex discrimination, the Act prohibits both direct and indirect
discrimination.
Jonathon Black 2010
Direct discrimination occurs when someone is treated less favourably because of their race, their
colour, their descent, their national origin or ethnic origin than the way someone of a different race,
colour, descent or origin would be treated in a similar situation.
Indirect discrimination occurs when a policy or rule puts at a disadvantage more people of a
particular race, colour, descent or national or ethnic origin than people of another race, colour,
descent or national or ethnic origin, even if it applies equally to everyone and appears to treat
everyone in the same way.
Indirect discrimination is permitted if the policy or rule itself is reasonable and it has an important
purpose. Eg, requiring customer service reps to have good English skills.
Racial vilification, or racial hatred, legislation has also been introduced in Australia.
Racial vilification laws restrict offensive behaviour in public, such as racist graffiti, speeches, or
comments in the media.
It attempts to strike a balance between the liberal right to free speech, and the right to live free
from racism. It permits acts performed ‘in good faith’, such as artistic work, academic debate, fair
and accurate reporting, and fair comment.
Critical race theory
As with feminism, there are a number of different ways in which race and racial discrimination have
been theorised by scholars. In the US, one of the most important bodies of scholarship is critical race
theory.
Critical race theory is concerned with the study and transformation of the relationships between
race, racism and power. It critiques the liberal notion of equality as reinforcing white dominance
which has spread throughout the world through imperialism in the 18th and 19th centuries.
Indigenous legal scholarship
In Australia, critical approaches to race and racial discrimination tend to focus upon the status of
Indigenous Australians.
Critical activists and scholars point out that despite numerous legal reforms Indigenous Australians
continue to experience extensive discrimination as well as ongoing dispossession of their lands.
Jonathon Black 2010
Topic 11 - Law and Ethics
Ethics is the study of the principles that guide you in choosing between what is right and what is
wrong, and in deciding upon the best course of action.
The term ‘ethics’ is also used to refer to the principles themselves, and an ‘ethical’ choice is one that
is consistent with these principles.
What is the right thing to do?
Greek ethics:
•
Socrates Knowledge allows the right choice to be made, the problem is that we
can’t possibly know everything, which leads to unethical choices.
•
Aristotle  Chose a moderate path, extreme decisions are unethical. As they can be
too strong or too weak a response.
•
Hedonists  We should do decisions that maximise pleasure, either instantly
(Cyrenaics) or in the long run (Epicureanism).
•
Stoics  Should remain calm and serene in the face of adversity, don’t worry about
others opinions or the effect on ourselves or others.
Religious ethics:
Common Golden Rule – Do unto others as you would have done unto you.
•
Christian  Ten commandments
•
Islamic  Koran
•
Jewish  Torah
•
Hindu  Karma and reincarnation.
•
Buddhist  5 Precepts
Modern ethics:
•
Consequentialism, e.g. utilitarianism  Least harm, most benefit.
•
Deontologicalism, e.g. Kantian theory  Consistency with a duty that all should
apply to.
•
Virtue ethics  What would a virtuous person do?
•
Ethics of care  Different theories, feminism, etc. Varying views.
Jonathon Black 2010
Law and ethics
Law and ethics are both rules of conduct.
Breaking legal rules and breaking ethical rules both lead to consequences.
(Although differ, disapproval/hell for ethical, fines/prison for the law.)
Ethical rules influence the development of legal rules in that legal decision makers and rule makers
are often guided by ethical principles.
Legal rules influence the development of ethical rules. If something is illegal it will come to be
viewed by many people as morally wrong, initially by reason of its illegality but eventually as morally
wrong in its own right.
The conflict between law and ethics
Legal rules and ethical rules usually coincide.
However, there are times when legal rules and ethical rules are in conflict. A particular choice may
be legal but unethical. Similarly, a particular choice may be ethical but illegal.
Ethical legal practice
Ethical dilemmas
Lawyers have (often conflicting) duties to;
1.
2.
3.
4.
Their Colleagues
The Law
The Court
Their Clients
Traditional view  Duty to Client is paramount
One justification for the traditional view is that it is essential to the successful operation of the
adversarial system of trial.
A key feature of the adversarial system is client control of their own case, and an important aspect
of this control is your responsibility as a lawyer to carry out your client’s instructions to the
maximum extent permitted by law.
Another justification is that it is more likely to lead to access to the law for all. If lawyers were held
morally responsible for their client’s choices, lawyers would be more careful about choosing or
accepting clients and there would be some clients with unpopular causes of action who would not
be able to find legal representation at all.
Taking responsibility would lead to a problem relating to access to justice, furthermore the lawyer is
merely an advocate, ethical responsibility lies in the client’s hands.
Jonathon Black 2010
However:
- Critics claim that the traditional approach is likely to lead to the development of undesirable
personality traits on the part of the lawyer.
- Critics also point out that the adversarial system is far from perfect, and it is not certain that it is
the best way to achieve the fairest result.
Responsible lawyering  Duty to Court is paramount
Responsible lawyering emphasises your role as an officer of the court and a trustee of the legal
system. It is an approach to professional ethics that places more emphasis upon your responsibility
to facilitate the public administration of justice.
Rather than focus solely upon what it is your client wants you to do, you should act consistently with
the law; not just the letter of the law but the spirit of the law.
Moral activism Duty to Justice itself
A moral activist approach to legal ethics emphasises your role as an agent for justice through law
reform, public interest lawyering and client counselling. As a moral activist you have a responsibility
to ensure that the legal system is fair and just. (Critical/Radical legal studies emphasis)
Contrary to the traditional view, you are morally responsible for your actions as a lawyer, and rather
than ignore or abandon your personal values you should make the effort to advise your clients –
even to persuade them – to do the right thing.
(And can thus not accept clients based on their cases).
Ethics of care
Where moral activism emphasises your responsibility to achieve social and political justice, the
ethics of care is more concerned with personal and relational ethics. Instead of focussing upon
individual rights and entitlements you should focus on relationships and social obligations.
An ethics of care insists that your primary responsibility as a lawyer is not to the individual client but
to the community in which you live and work, and preserving relationships is more important than
winning an argument.
if you would be ashamed if your parents or spouse or children knew what you were doing, then
you should not do it.
-
John Briton
It’s not all about complying to the letter of the law.
Jonathon Black 2010
Topic 12 – Nature and Law
Moral status
The term moral status refers to a being’s entitlement to our moral consideration, usually expressed
in terms of the possession of rights or inclusion in utilitarian calculations of overall wellbeing.
Humans only
Anthropocentrism refers to any ethical framework that grants ‘moral status’ solely to human beings.
We possess obligations towards animals and the environment purely for the sake of human
wellbeing and prosperity.
Many environmental concerns are expressed in terms of the impact upon human wellbeing:
-
Pollution threatens human health.
Resource depletion threatens human standards of living.
Climate change and rising sea levels threaten human homes.
Biodiversity reduction threatens the supply of potential medicines.
The eradication of wilderness threatens a source of beauty.
Justifications for anthropocentricism include:
•
worldview/religious theories  Humans top of food chain and can do what they
please to animals which are beneath them.
•
Cartesian theories  Animals automata
•
Kantian theories.  Animals are not self-conscious, no explicit duty to them as they
are incapable of good. Shouldn’t abuse because as a human it’s an undesirable trait.
Animals too
Several ethicists have argued that moral status should be extended to include all animals, not just
humans. There are two possible positions:
-
Animals have unequal moral status. (Predominant View)
Animals have equal moral status.
Jonathon Black 2010
Animals – Unequal moral status
1. If a being is sentient then it has direct moral status.
2. (Most) animals are sentient.
3. Therefore (most) animals have direct moral status.
The usual manner of justifying the claim that animals are not equal to human beings is to point out
that only humans have some property, and then argue that that property is what confers a full and
equal moral status to human beings.
If these arguments are not valid, then persistently putting human interests ahead of non-human
interests is no more than irrational “speciesism.” Discrimination based on species – Peter Singer
Animals – Equal moral status
Singer’s Argument from Marginal Cases:
1. In order to conclude that all and only human beings deserve a full and equal moral status,
there must be some property P that all and only human beings have that can ground such a
claim.
2. Any P that only human beings have is a property that some human beings lack (the marginal
cases) yet we still accord those marginal cases equal moral status.
3. Any P that all human beings have is a property that most animals have as well.
Therefore, there is no way to defend the claim that all and only human beings deserve a full and
equal moral status.
We must either conclude that not all human beings are equal (incompatible with liberalism), or we
must conclude that not only human beings are equal.
This argument is used to justify the extension of utilitarianism to include the wellbeing of animals.
Utilitarian vs Rights based approach. Cruelty such as through drugs testing can be justified if the
harm is outweighed by the good.  Tom Regan
All living entities
All living organisms have some (not the same as humans or animals) moral status in the sense that
they are owed ethical obligations even in the absence of their benefit to humans.
It is ethically wrong to clear a rainforest not only because doing so could cause harm to present and
future humans, or because doing so will cause harm to the many animals that live in the rainforest,
but because the trees and other plants in the rainforest have an inherent right to survive and to
flourish. It is not morally wrong to eat an apple, but it is morally wrong to destroy a tree when there
is no good reason to do so.
Jonathon Black 2010
Holistic entities (The big picture)
Instead of focussing upon our obligations to individual humans, animals and plants we should focus
upon our obligations to species, environments and ecosystems.
A holistic ethic demands that the land itself not be treated as a mere object or resource but as an
essential part of the complex structure of relations between living things. It is therefore deserving of
moral standing in its own right.
A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community.
It is wrong when it tends otherwise.
Aldo Leopold
Radical ecology
According to radical ecology, ‘moral extensionism’ is insufficient to resolve the environmental crisis:
a broader philosophical perspective is needed, requiring fundamental changes in both our attitude
to and our understanding of the world. We are required to confront the environmental crisis by
changing the way we live and function, both as a society and as individuals.
Forms of radical ecology include:
•
deep ecology  Minimise use of resources, number of people on the planet. Drastic
changes to behavior and views. Not for Anthropocentric reasons!
•
social ecology Domination of different groups, and neoliberalism’s prevalence
lead to current problems. Overhaul of ideology and social structure necessary to
reduce impact on nature.
•
eco-feminism  Dominance of women by men, is analogous to humanity and
nature. Only women understand and can care for the environment.
The domination of nature by man stems from the very real domination of human by human.
Murray Bookchin
Jonathon Black 2010
Environmental law
Efforts to ensure that environmental factors are taken into account in government and private
sector decision-making have become easier in recent years.
However, determinations regarding the nature of an ‘appropriate’ approach to environmental
matters tend to be anthropocentric and to draw upon shallow ecology, rather than to recognise the
inherent value of non-human entities or draw upon radical ecology.
Generally speaking, environmental law is not so much about protection of the environment per se as
it is about enabling decisions to be made that reflect a balance between the different environments
that are the concern of government. Guided by economic analysis!
The guiding principle is ecologically sustainable development, i.e. development that meets the
needs of the present generation while not compromising the ability of future generations to also
meet their needs.
Animal law
Common law (Hutchins v Maughan) says animals are property (Anthropocentric), but legislation
seems to indicate that they have some form of rights.  Steven White
Animal welfare law (Utilitarian view rather than individual rights)
Animal welfare laws are those laws that seek to promote the interests of animals. They are used to
manage the use of animals in educational and research institutions, in zoos and circuses, in food
production, in the wild and in local communities.
Animal Care and Protection Act 2001 (Qld)
17. Breach of duty of care prohibited
1) A person in charge of an animal owes a duty of care to it. Unique to Queensland.
2) The person must not breach the duty of care. Maximum penalty – 300 penalty units or one
year’s imprisonment.
3) For subsection (2), a person breaches the duty only if the person does not take reasonable
steps to:
a) provide the animal’s needs for the following in a way that is appropriate:
i.
food and water;
ii.
accommodation or living conditions for the animal;
iii.
to display normal patterns of behaviour;
iv.
the treatment of disease or injury; or
b) ensure any handling of the animal by the person, or caused by the person, is
appropriate
Jonathon Black 2010
Animal Care and Protection Act 2001 (Qld)
18. Animal cruelty prohibited
1) A person must not be cruel to an animal. Maximum penalty--1000 penalty units or 2 years
imprisonment.
2) Without limiting subsection (1), a person is taken to be cruel to an animal if the person does
any of the following to the animal:
a) causes it pain that, in the circumstances, is unjustifiable, unnecessary or
unreasonable;
b) beats it so as to cause the animal pain;
c) abuses, terrifies, torments or worries it;
d) overdrives, overrides or overworks it;
e) uses on the animal an electrical device prescribed under a regulation;
Animal Care and Protection Act 2001 (Qld)
18. Animal cruelty prohibited
a) confines or transports it:
i.
without appropriate preparation, including, for example, appropriate food,
rest, shelter or water; or
ii.
when it is unfit for the confinement or transport; or
iii.
in a way that is inappropriate for the animal’s welfare; or
iv.
in an unsuitable container or vehicle;
b) kills it in a way that:
i.
is inhumane; or
ii.
causes it not to die quickly; or
iii.
causes it to die in unreasonable pain;
c) unjustifiably, unnecessarily or unreasonably:
i.
injures or wounds it; or
ii.
overcrowds or overloads it.
Jonathon Black 2010
Exemptions include:
•
compliance with an adopted Code of Practice: s 40;  Industry presents Code of
Practice
•
controlling feral or pest animals: s 42;
•
fishing using certain live bait: s 44; and
•
slaughter under religious faith: s 45.
Codes of Practice permit  Huge problem to Animal Welfare Activists as these are extensive and
undoubtedly inhumane.
•
factory farming;
•
the use of inhumane methods to kill wild animals defined as ‘feral’ or ‘game’;
•
castration of farm animals without pain relief;
•
cutting or grinding the teeth of piglets;
•
de-horning of adult cattle;
•
hot iron branding of cattle;
•
de-beaking of chickens with a hot iron/wire;
•
transporting of cattle and sheep for extended periods;
•
mulesing of sheep (cutting the skin from their behind, with no analgesia);
•
flank spaying of adult cattle; and
•
tail docking of cattle, lambs, and piglets without pain relief.
Animal rights law (Individualistic rather than Utilitarian)
Animal rights lawyers:
•
find the animal welfare approach unsatisfactory because it still permits a wide
range of cruel practices; and
•
seek to challenge animals’ status as property, with a view to securing fundamental
rights for (at least some) animals.
Jonathon Black 2010