This course encourages students to take a reflective interest in the study of law - its intellectual foundations, its social conditions, its relationships with morality and politics, and its kinship with other disciplines, especially philosophy, ethics and social theory. The course is theoretical in the following sense. In their practical, day-to-day, activities, lawyers take, and must take, much for granted: about the nature of the law, about the purposes and functions of its institutions and doctrines, and about the worth of it all. They practise within established legal systems, with more or less settled institutions, techniques, traditions and rules. Customarily they think within the categories and arrangements provided by the legal system, rather than about them.

Legal Theory is concerned to think about precisely those frameworks that lawyers think within. It aims to probe and discuss theoretical questions about law, which underlie the practical stuff of the law. Such questions include matters of description and analysis - what's going on?; of comparison - what else goes on elsewhere and what can it tell us about what goes on here? - and of evaluation - is what is going on what should be going on? Purported answers to such questions are constantly assumed and relied upon in legal talk and action. Legal actors, however - like all social actors - are frequently unaware of the extent to which, or the ways in which, what they take to be perfectly obvious, natural and impossible to imagine otherwise reflects particular, usually traditional assumptions which are questionable but are rarely questioned.

Legal theory examines such assumptions, clarifies the issues with which they are concerned and frequently shows these issues to be more puzzling and contentious than is commonly assumed. It acquaints students with, and gives them opportunities to think about, question, criticise and defend, some of the most important ingredients in their own thought about the law; ingredients which are all the more important for not being commonly recognised as matters of argument or even discussion at all.

Theoretical inquiry has no predetermined 'results', or rather just one. Students will decide for themselves whether they emerge from such inquiry with better or worse reasons to believe what they started with, or whether they should believe new or different things. On the other hand, however they begin, they are unlikely to emerge thinking that the questions discussed in the course have simple, obvious or uncontroversial answers.

In general terms this course discusses the consequences for law of the present ascendancy of two basic ideas – legal positivism as a dominant approach to understanding law and liberalism as an organising framework for thinking about political life. Legal positivism, basically, is the idea that the validity of law is a matter that can be worked out independently of non-legal (e.g. moral) concerns. A liberal understanding of politics among other things takes the conception of ourselves as self-governing (as autonomous) as its basic value and evaluates legal practices in terms of how well or badly they contribute to this value. Time is spent discussing these accounts of law and politics.

Along the way we discuss a number of basic ideas associated with contemporary legal/moral/political philosophy. These include - the nature of legal analysis, the separation of law from other areas of social life, the difference in moral theory between the right and the good, moral and personal autonomy, liberalism’s relationship to rights and to cultural and religious difference, and law’s relationship to justice, democracy and the rule of law.

In order to make these ideas more concrete we relate them to certain ‘problems’ of contemporary legal practice. A consideration of the materials for the later classes will show the type of issues that will be discussed: the character of public law (ideas associated with constitutionalism and rule of law), relativism and ‘western’ human rights, and the feminist and postmodern/post-structural challenges to understanding law.

You may have dealt with the present law on some of these matters in other law courses. Here we are interested in what philosophy has to say about these problems.


Main Topics: Three large themes for the course as a whole

(a)What kind of beings are we – the legal, moral, liberal subject? Not an ontological question (as to what we are really like) but a question about what is significant about us from the legal, moral, political perspectives.

(b) Role of (practical) reason. How can our laws and our institutions be rational, be justified to free thinking? The character of legal, moral, and political reasoning: including, similarities – between proof and scepticism i.e. inter-subjective character; differences – law a special case (as authority, autonomy...), right/good, instrumental reasoning/value reasoning...

(c) In the background are larger questions of method in social/ethical/legal theory - the proper way to see the division of normative and factual issues. For example, what is the relationship between the cultural understandings of (a) above and what we are really like (for instance, human nature)? And what is the relationship between what is rational to us in Australia now and what is rational in a larger sense (for instance, are human rights universal?) How can we be both inside and outside of our practices?

More information can be found on the Course Outline Website.