Critical Introduction to Law - Essay Example

?Critical Introduction to Law Reflective Portfolio I came into Critical Introduction to Law with fixed ideas about law, with little regard for the rationale or institutions of law. I merely regarded law as a system of rules and regulations that established and enforced personal, civil and property rights. I therefore expected that studying law would merely be a method for me to learn the extent and limits of those rights and the penalties/consequences for breaching those rights. However, as the course progressed I have gained a different impression and understanding of what the law is and the rational for law. Much like Poe’s Prefect, I came into the law course, an unthinking member of society, taking the study of law for granted. The second seminar began to reverse my attitude as it engaged thought and reason. Without the benefit of Schlag’s The Enchantment of Reason, I might have read, Poe’s The Purloined Letter as nothing more than detective fiction. However, with the hindsight of Schlag’s The Enchantment of Reason, I not only felt compelled to re-evaluate my own view of the law, I was also able to interpret Poe’s The Purloined Letter differently. I focused on logic and more importantly flawed logic and the power of the human mind and reason. As a result, I was prepared to study law with an open mind. Reading and discussing the Purloined Letter and Schlag’s The Enchantment of Reason I came to appreciate a new perspective on law. Looked at as a system of rules and regulation, Schlag and Poe’s works draw attention to fallacy of blindly setting rigid rules and regulations and then following those rigid rules and regulations even when, they do not produce desirable outcomes. I came to the realization that I had a lot to learn about the law, how and why law is made and what compels people to follow and to not follow the law. I also realized that disobeying rules and regulations and finding alternative solutions were not always wrong. The second seminar therefore changed my expectations. I found that I was eager to learn more about the rights and protections anticipated by the law and when and how unanticipated situations would or should be treated by the law. In other words, the second seminar drew specific attention to procedural rather than substantive law, but invokes thoughts of both. Essentially, the second seminar taught me that procedural rules and regulations rarely anticipate every possibility. Rule makers, such as the police in The Purloined Letter who refuse to modify rules when they are inappropriate in an unanticipated situation, end up with rules and regulations that are ineffective. Therefore reason and logic dictates that there are often justifiable grounds for going around the procedural rules and regulations or modifying them to meet a new set of circumstances. The third seminar provided a more direct experience with the law with an introduction to 19th century English legal scholar A.V Dicey. Dicey invited critical thinking about the law and what it takes to learn the law. In Dicey’s Can English Law Be Taught At The Universities? reinforced my enthusiasm to study the law. Dicey admits that the best place to learn the law is in the courtroom. However, he also notes that there are some things that cannot be learned by mere practice and that learning law in university fills that gap. The gap is learning to think critically about legal concepts. That can never be learned in the courts and in the law chambers. I was also encouraged by Kennedy’s First Year Law Teaching as Political Action which encouraged legal scholarship as a tool for encouraging critical thinking rather than merely learning the law as a means to a career. Kennedy encouraged creativity and a unique approach to learning and teaching law. Thus far, I felt that I was already becoming a creative and critical thinker. Introduction to law was nothing like I expected learning the law to be. I always thought studying law meant learning and thinking codes and cases. Now I was thinking about logic and analysis and reason. Week 4 provided the opportunity to study two cases. The first case, McKinnon v Government of the United States of America provided an introduction to the complexities of procedural law. In that case, McKinnon was wanted in the US on suspicion of hacking into a US military computer system. He was arrested in the UK, but could not automatically be transported to the US and turned over to the US authorities. The law requires that unless the defendant freely consents to extradition, it is for the courts to determine whether or not he could be extradited from the UK to the US. Prior to reading the case, I was aware of extradition processes but only to the extent that foreign fugitives are typically extradited by court order to the country in which they allegedly committed crimes. A number of issues arose that shed light on the extradition process and the rights of the accused person. The primary issue was whether or not the US was had jurisdiction over the crimes. Another issue was whether or not the US officials put undue pressure on the defendant to submit to the jurisdiction of the US courts by offering a much lighter penalty if he freely returned to the US. In other words, as tedious as the extradition hearing may seem, it is necessary to ensure that the ends of justice are met. The defendant is entitled to a fair hearing and this is why proceedings are very important. The procedural law is just as important as the substantive law in establishing the guilt of the individual. Procedural laws ensure that the defendant has a fair hearing, is fairly represented and has an opportunity to challenge the authenticity of the claims against him. McKinnon therefore had several opportunities to challenge the extradition by virtue of the appellate process under the hierarchy of the English legal system (McKinnon v Home Secretary [2009]). Week 5 invokes theoretical perspectives on law and invites critical thinking. Simmonds introduces the main theories of jurisprudence with an emphasis on liberal political theory. In this seminar we learned to think more critically about theories of law such as Locke, Hart and Mill. Ultimately, I had an opportunity to look at the law in a way that had never previously occurred to me. Law, as it turns out, has been a matter of philosophical debate for many years. Theorists, as espoused by Simmonds argue over whether law is a question of coercion or moral conscience or simply a product of natural law. Mansell, Meteyard and Thomson’s A Critical Introduction to Law takes a far more simplistic view of what the law is and invites the use of common sense, but nevertheless invites critical thinking. Law is a method of social control as man left to his own devices might not only harm himself, but might harm others. This obviously echoes philosophers of the natural law line of thinking. Regardless Mansell, Meteyard and Thomson invite readers to apply common sense in thinking about the law. Not only is it necessary for order, law is futile unless it is backed by some form of coercive reinforcement. Moreover, in order to achieve the objective of social order, it must define what cannot be done otherwise law could not resolve disputes. Even so, the law is constantly evolving. Laws made to protect an individual and to enforce that protection can also be exploited and result in an injustice. Therefore the law establishing that protection has to be modified to safeguard against the erroneous prosecution of innocent persons. As I learned in Week 6, legislation protection may have to be modified several times to protect both victims and those accused of the crime. Rumney’s False Allegations of Rape highlights how the law had to be changed to protect the identity of certain victims and modified further to safeguard against false accusations of rape. For instance a victim’s claim requires corroboration. As I learned in week 7, the law can also be unlawful or unjust. For example the German statute Law for the Prevention of Offspring with Hereditary Diseases forced sterilization on individuals with specific diseases. In this regard, the law can also be unfairly coercive and decidedly unjust. The rationale was for the spread of the disease. This calls into question the extent to which the government through legislators should be permitted to invade the personal lives and personal decisions of the individual and therefore invokes critical thinking about theories of law. Thus far, I have learned that law is not a mere science but an art. While it has a distinct purpose and exists in books, codes and the common law, it must be capable of application to anticipated and unanticipated situations and circumstances. Law has a theoretical basis that has been debated for centuries. Law has a purpose and with that comes a practice. When we learn to look at and think critically about the law we gain deeper insight into human compulsion and human nature. The law presumes that not all men are rational, but counts on most men being rational and obeying the law for fear of consequences. The theoretical basis of law is to ensure that the rational man is not exploited or harmed by the irrational man. In week 8 I learned that the irrational may commit an act that is so heinous that it may not have been contemplated by the law. A perfect example of this is the holocaust during the Second World War. At the time there was no international law dealing with genocide. The Genocide Convention only came into effect in 1948, after the Second World War. Yet the Nazis were charged with and tried for genocide pursuant to customary international law under the auspices of Crimes Against Humanity within the meaning of the Geneva Convention. The rule of law under customary international law commands that some crimes are so heinous that no one ought to escape justice on the basis of state sovereignty or territorial integrity. Just as the Nazis raised the spectre of turning a wrong into a punishable law when there was no law specifically addressing that law, natural law reasoning promotes the idea of disobeying a law that creates an injustice. Martin Luther King Jr.’s Letter from Birmingham Jail touches on this theory of law. King writes in this letter that he is in jail because of an injustice and there was no justice in Birmingham. King further notes that “an injustice anywhere is a threat to justice everywhere”. Thus, King’s statements are parallel to natural law reasoning. Certainly he was arrested and jailed according to the law, but that does not necessarily mean that he broke a just law. It is well known that the was a civil rights leader and was thus breaking a law that wrongly denied blacks civil rights. Therefore the law was unjust and he saw no reason why he should be bound by an unjust law. Natural law reasoning asserts that laws can be broker when they are unjust. The reality is laws can be broken for justifiable reasons. For instance a law forbidding trespass can be broken to save the life of another. Similarly, the crime of murder can be excused in self-defence. Similarly, an individual suffering from impaired judgment on the grounds of insanity or automatism may be excused as well. Lawyers do not systematically apply the law. They attempt to find out if a client charged with a crime had a lawful or justifiable excuse to break the law. This leads to the role of the judge. The judge’s role in the legal process is to ensure that only the relevant facts are heard in the interest of justice. Proponents of judicial activism however, maintain that judges not only interpret the law but set precedents by passing judgments and by doing so they are required to be active rather than passive. They must interpret the laws in such a way as to correspond with the facts. In doing so, they invariably create new laws. From the traditionalist perspective, judges are required to be consistent so that it is possible to predict what the consequences for disobeying the law is. In other words, judges must be passive and defer to the legislators at all times and must not make new law. The debate about the role of judges is indicative of the critical thinking that accompanies the study of law. It brings to mind C.S. Lewis’ On Different Tastes in Literature. Although I was not persuaded that one work of literature or art should be read more than once, I am persuaded by the idea that some literature requires a second reading. Not all literature can be understood or enjoyed in one reading. Quite often a second reading is required. However, this is not the same with all texts and must certainly be the case with law as it is decidedly complex and requires critical thinking. Moreover, a critical point may be missed unless a second and sometimes a third reading is conducted. I have actually found that quite a few of the texts prescribed thus far have had to be read over several times before I felt satisfied that I understood the lessons or messages shared. Likewise, things are not always what they seem at first. As second reading may be required to understand the text or to discover the actual message. It means considering the text in greater detail. Similarly, if an individual makes a statement, one should not automatically regard that statement as truthful. While there’s nothing wrong with trusting a close friend or family member, in matters related to the law, one must always look for corroboration of the truth. Another area for critical thought is the nature of the post-modern world. Questions arise as to the connection between norms and culture. Norms are embedded in culture and we are informed that these norms create values which direct us to obey the law. However, in the post-modern world we are becoming more and more interconnected so that cultural norms are being absorbed by the global culture. Kate Fox has even gone so far as to suggest that it is no longer entirely clear what it means to be English. This is unfortunate because culture or society established an unwritten code that directs obedience and to a great extent peaceful co-existence. Fox explains that this cultural/societal pull is so great that it’s norms and values are adapted and practiced automatically and without thinking. Fox compares this to the act of getting out of bed and automatically dressing before going outdoors. This is done without conscious thought and without hesitation, simply because the individual knows that going outside undressed is wrong. Does the post-modern world threaten to destroy this adherence to cultural values? The answer to this question is no. Postmodernity is not threat to traditional values. Just because the world has become integrated and interconnected does not mean that we will abandon our traditional values. Customary international laws did not result in national laws abandoning their own laws. Therefore there is no reason to expect that just because we now live in an interconnected world that we will automatically abandon our own personal heritages. Common sense concepts of property dictates that we will not abandon traditional values. Each of our property values are intricately tied to our own identities, whether national or cultural. The dominant culture in each country invariably determines how property rights are acquired and protected. Ideally, all cultures within a society share the same values about property. Locke takes a common sense approach to property rights and argues that property is acquired through labour and with that comes a personal right to possess. Presumably labour can be an indirect method for the acquisition of property rights. A person through his or her labour is paid for that labour and thus can use that money to purchase property rights. Arguably most cultures accept and respect the rights inherent in the acquisition of property rights. Locke also argues that the government does not have a right to deprive man of his lawfully acquired property. Article 17 of the French Declaration of the Rights of Man partly agrees with Locke. Article 17 states that: Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified. According to Article 17 there may be circumstances in which the government may take private property. However there are two caveats. First, the government’s right is an exception to the rule that property is “an inviolable and sacred right”. Secondly, the government may not take private property without compensating the individual from whom it is taken. I have learned a lot about the nature of the law as well as the rationale for the law. Law is not simply a collection of codes and cases. Law is a complex subject that deals with procedural and substantive laws. The rationale for those procedures and the substantive laws are even more complex. I have learned that law is necessarily coercive as man cannot be trusted to co-exist on natural instincts and desires. Without law, the strong would overcome the weak and the weak may turn to crime to survive. The outcome would be chaos and complete disorder. Having thought critically about the law, I have come to the realization that law is imperfect. Some laws may be unjust and may be rightfully disobeyed. Similarly there may be circumstances in which just laws can be justifiably broken. Therefore, the law is constantly changing as it attempts to meet changing circumstances. To the law’s credit there are some judges who see their roles as activism and as such they fill in the gaps where legislation failed to contemplate a wrong. We have even seen prosecutors invent law as the prosecutors did during the war tribunals following the Second World War. Part II Evidence Essay Plan: A critical analysis of any one material from the Autumn Term Reading Materials Pack. The Purloined Letter by Edgar Allan Poe Tales by Edgar A. Poe(Wiley & Putnam; London, 1846) pp200-218 Plan: Introduction: Describe Poe’s The Purloined Letter and where it fits in with his defective fiction genre. Describe Dupin, the detective and the central theme of the The Purloined Letter. Describe how Poe’s The Purloined Letter differs from typical detective fiction genre and the time that it was published and its significance for the theme. Historical background: Describe the significant social, economic and political factors that existed at the time of Poe’s composition of The Purloined Letter. Set out how those factors were critical for an understanding of The Purloined Letter. Synopsis of The Purloined Letter: Provide a summary of the plot, the characters and the narrative contained in The Purloined Letter. Analysis: Identify characterization, situation, settings and themes. Describe what these mean for the plot and the message that Poe was trying to convey. Identify symbolism and set out how the text reflects history and social. Include input from critics and literary analysts. Conclusion: Sum up by noting that Poe’s The Purloined Letter can be interpreted a variety of ways. State what is most likely the more profound interpretation. Seminar Week 13 Traditional Natural Law Theory – Remnants and Reminders Reading/Preparation: 1. Access on the internet and read Martin Luther King jnr’s ‘Letter from Birmingham Jail’ 2. Bring to your seminar an example from your legal studies, of natural law reasoning: in a case, in a text book, or in seminar materials. Questions: 1. How does Martin Luther King jnr. justify breaking the law during the American civil rights movement of the 1960s? According to Martin Luther King Jnr. the laws during the American Civil Rights Movement during the 1960s were unjust laws made by the unjust. He therefore felt that he had a justified grievance with the law and was entitled to break those laws as they caused more harm in commanding obedience than they did by commanding disobedience. 2. Is it wrong to break the law? Does it depend on how you define what the law is? It is wrong to break the law. However, much depends on the intended outcome of the law. If the law intends to prevent a specific harm, and if by obeying the law, it has an unintended harmful outcome, you can be excused for breaking the law. For example, a law forbidding assault is qualified by the right to protect oneself. In other words, much depends on how the law is defined. We take a purposive approach to defining laws and this will direct whether or not a law can or should be obeyed at all costs. But we are always guided by the concept that obeying the law is the rule and breaking the law is the exception. 3. Could someone use the same kind of argument today to justify breaking a law? Can you think of an example of a law that could be broken using that kind of argument? In modern times the rule of law is such that we cannot use Martin Luther King Jr’s reasoning as justification for breaking the law. There are a number of laws that many people think are unjust. But, we live in a world where the dominant culture decides what is just and what is unjust and this translates into law. If everyone broke laws that they felt were unjust we would live in a lawless society. An unjust law that can probably be broken without consequences today would be a law commanding the payment of death taxes. However, the way around that would be to declare the estate insolvent. 4. Explain the example of natural law reasoning you have brought in. Man is by nature a rational human being and certain values and norms are ingrained in universal truths. An example of natural law reasoning is found in the US Declaration of Independence: IN CONGRESS, JULY 4, 1776 The unanimous Declaration of the thirteen united States of America hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. 5. Does traditional natural law theory confuse what the law is with what the law ought to be? No. Traditional law theory argues that laws are derived from natural human reasoning. Certainly they argue that some laws go against human reasoning and as such they command disobedience. Man is imperfect and therefore does not always arrive at workable solutions. 6. Should lawyers be concerned with how the law should be or just with what it is? Lawyers are practitioners and can only practice the law as it is. Legislators worry about what the law should be, and lawyers simply practice the law as it is. A Critical Introduction to Law Seminar Work, Week 21: Certainty and Uncertainty Reading/Preparation: 1. C. S. Lewis, ‘On Different Tastes in Literature’ in your materials pack. 2. Feynman on Scientific Method: http://www.youtube.com/watch?v=EYPapE-3FRw 3. Feynman, 'Fun to Imagine' 4: Magnets (and 'Why?' questions...): http://www.youtube.com/watch?v=wMFPe-DwULM Seminar Questions: 1. What does it mean to 'be critical'? What, if anything, is the point in 'being critical'? Being critical does not necessarily mean looking for flaws. It means looking insight and deeper meaning than one would get from a peripheral examination of a text or a film or any work of art. Being critical invites creative thinking and provides opportunities for finding solutions. When we engage in critical thinking we become better at identifying problems and solutions. 2. What is the purpose of the natural sciences, and how do they achieve that purpose? Would you describe your view of the sciences as 'critical'? The purpose of natural science is to help us understand and appreciate mankind and the world that we live in. It achieves this purpose by revealing facts that illustrate our strengths, weaknesses and limitations as human beings and the relationship that we have with the world that we live in. 3. Is anyone ever justified in believing something to be true without having given it any consideration? If something is offered with supporting evidence, we need not give the matter further consideration, unless the supporting evidence is suspect. 4. Do you find C. S. Lewis' distinction between good and bad literature persuasive? I am not persuaded by Lewis’s suggestion that a good reader reads every text more than once. I do believe that some literature is difficult and requires a second reading. But it would make little sense to read a text that you did not enjoy a second time. Portfolio: 1. How does the portfolio assessment fit in with the overall aims of LW313? This portfolio fits in with the overall aims of the LW313 because it deals with human nature and the way the mind processes information and treats it. This is an important part of critical thinking and analysis and relates directly to the study of law. Read More