Law
Introduction
Jurisprudence is the study of philosophy of law. Law is something,
which regulates society. It regulates human behaviour and the relationships
between members of a society. Beyond this it attempts to enshrine
certain ideals some of which may be things like equality, freedom
and justice.
What is at stake?
Hans Kelson, a legal philosopher says that the 'law functions as
a scheme of interpretation' (Kelson in Davies 1994 p5). An event
or a fact, such as the killing of a human being does not itself
carry any legal significance. The legal meaning of an action cannot
be perceived by the senses. The legal meaning which any event has,
is not the result of the action itself, but is the result of viewing
the action through a legal system. Thus, if I drive at 80 kph in
a 60 kph zone the illegality is not something that can be seen by
looking at the car driving thought the zone. The illegality is the
result of seeing the 'speeding' through the filter of the Road Traffic
Act. The action gets its legal significance from the law and the
law is a scheme of interpretation because it classifies actions
into those which are legal and those which are not.
Law orders the way we see the world
The important idea behind Kelson's view of law 'as a medium of
interpretation' is that the law orders the way we see the world
(and the way the world sees us) and what we do. This means the law
imposes order on what would otherwise be legally meaningless actions,
experiences and relationships. This way you can view the law as
a huge system of categorisation for certain things in the world
(Davies 1994).
Think about:
- Are our understandings of this categorising system 'natural',
that is, the same for all people?
- Can it be used to exclude other systems of law that don't
fit the categories?
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What is the status quo?
Mabo and Native Title
The modern tradition in Anglo-European law reflects a rationalist
or 'Enlightenment'
mode of thought, which places an artificially high value on the
notions of objective 'truth',
based on 'rational' presuppositions and methods of reasoning and
understanding. The Mabo
decision (Mabo v Queensland (no. 2) (1992) 66 A.L.J.R. 408, (1992
175 C.L.R 1) curiously enough, makes a high point in this strand
of legal thought and can be used to illustrate this way of thinking
about the law.
The decision in the Mabo case, like most decisions of the
current Australian High Court, involves the application to a problem
of a peculiarly 'legal' form of logic. This form of logic involves,
in simple terms, the identification of the 'objective' judge of
certain premises or presuppositions, their logical application to
a set of known facts, resulting in a conclusion which is said to
be untainted by purely 'subjective'
or personal factors. Such a method of reasoning is characteristic
of that period of European history known as the Enlightenment,
a period which produced unprecedented advances in science, but rather
mixed results in the social sphere.
Law and scientific method
Initially the new scientific methods were applied primarily to
criticise existing social institutions, which were seen to be medieval,
founded on irrational superstition. The belief became strong that
the new scientific methods had the capacity to uncover truth, which
is more than the revealing of falsehoods in the social sphere.
Philosophers of the time such as Kant identified with the exploration
of 'Pure Reason' and 'Reason' triumphed not because (in the philosophical
sphere at least) it revealed truth, but merely because its methods
possessed the capacity to demolish what was palpably untrue.
Law exposing fundamental truth
The law followed with some delay, these developments in philosophy.
Law developed certain axiomatic or fundamental values to which it
gave unquestioned protection. Foremost among these was the protection
of individual rights, which was epitomised in the nineteenth century
by the notion of freedom of contract: this protection, historically,
could be seen as having developed from the notion of the social
contract. To a large extent the new theory of rights saw itself
as an assertion of 'natural' law, an expression of fundamental 'truth'
that are the same for all people.
Using reasoned argument
Without going into the legal reasoning at length, it became apparent
in the Mabo case of the importance of 'reasoned argument'
in judicial pronouncements. Such arguments are deductive where possible,
taking the form of a 'scientific' progression from facts to propositions
of law to conclusion. This essentially 'scientific' and deductive
form of logic was used to reject the doctrine of 'terra nullius'.
The reasoning of the High Court in the Mabo decision reflects, par
excellence, a 'logical' or 'rational' modernist method of decision
making.
What are the alternatives?
For the last forty years European philosophy has been concerned
with questioning the assumptions, upon which 'Enlightenment
paradigm' is based. It has questioned whether the idea that there
are small numbers of unchanging, universally valid principles (such
as the human rights principles that underpinned the Mabo
decision) which are discoverable by human reason. From this it has
questioned the notion of 'objectivity'
itself: that is, that we, the rational subject, can abstract 'objectively'
and ourselves examine the external world; and to question the notion
and composition of the 'subject'.
Deconstructing legal objectivity
The interesting thing is that these postmodern 'deconstructive'
ideas resemble much of what anthropologists say about Aboriginal
culture, and what Aboriginal people say about themselves. It is
said traditional Aboriginal people do not have a rational 'causal'
view of history: they tend to focus on timelessness, on the sameness
or at least interconnection of past and present. They do not abstract
themselves from an 'objective' reality. Nor do they have a clear
concept of 'self' which is defined in opposition to this external
reality. This suggests that postmodern concepts of history are closer
to Aboriginal concepts of 'history' than they are to causal views
on which the High Court's reasoning in the Mabo case is based.
What happens when different knowledge systems
speak to each other?
We need to continually challenge the notion that laws and understanding
of laws are 'natural' because it is the law that defines our society,
our visions of reality and our day-to-day struggles. Using the first
example of the act of killing a person - it could legally be a number
of things, such as lawful execution or a murder - where this meaning
is not derived from our perception of the act, but the meaning given
to it by the law. It is but one way of organising our perceptions.
Resources
This reading will provide you with a starting point for looking
at the contestation of knowledge about law.
Reading 5.7
Davies, M. 1994 'Asking the Law Question (What is It?) in Asking
the Law Question, Law Book Company, Sydney, pp 1 - 22.
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