stl2003-m5

Minutes from Social Theory of law (joint)

Seminar, 10-11am,

Tuesday Week 5

Minutes by Shane taylor (LLB Year 4)

Proposition: Formalists and positivists are really closet believers in rule indeterminacy who would allow anything to pass as law as long as it has conformed to the appropriate procedure.

FOR

Positivism and formalism can be used to justify laws which may seem rational at the time, but may offend personal or group morality at the time or in the future (e.g. Nazi jurisprudence, apartheid in South Africa, slavery, non-suffrage for women).
Positivism may be thus used as giving legitimacy to policy goals.
It could be said that formalism is more political, because after all it is a judge’s own personal moral will which adjudicates a case, hence his moral outlook, not the actual formalistic nature of the law. Justice is in effect subjective – a certain amount of indeterminacy is an inherent feature of any legal system.
There is an argument to say that with no rules in society, you may reach an equilibrium in social order. To leave people to govern themselves – a laissez-faire principles – individuals may be free to develop their own rules of interaction. (Example 1: If murder was decriminalised or even made legal, would you have more people going and committing murder? One answer could be no, since the intent to kill depends on many other factors such as personal interactions, psychology, sociology etc). (Example 2: If drugs were decriminalised, does that mean more people will go out and take them? Similarly if tobacco was made illegal, it wouldn’t necessarily stop people from smoking).
Thus, having such formal rules carries with the opportunities to break those rules! If no rules, there would be no sanction for its breach, hence would it be a crime or taboo?
Positivists always start with the assumption that chaos preceded order (e.g. Hobbes in Leviathan). An anarchist argument is that in a modern world, the rules conflict so much that chaos is inevitable anyway in the future! Rules can be said to hinder human development and progress.
The rise of the state and need for formal law for security and nation building. But what difference to human existence do rules make? There may well be a difference between formal rules (i.e. law) and informal rules of human beings. Rousseau – if there were no rules, perhaps people would not mark themselves off against eachother.

AGAINST

Formalism is important in the neutrality of law – it shows legitimacy in the law itself. (Example: as with the characters in Lord of the Flies (William Golding), hierarchy can be said to be ingrained in all of us and perhaps rules and order are man’s most natural state).
Formalism gives continuity and support to the law, and enforces the law’s authoritative nature in this modern (and potentially dangerous) world.
Formalism and positivism remove any doubts about the law, e.g. arguments of morality which may cloud its authoritative nature. Bentham and Hobbes – attempted to show that law was non-arbitrary because it operates by the consent of those it governs.
However, one can bend the rules, hence the point of formalism is defeated. A certain amount of subjectivity in the law defies the point of an all-encroaching law that is free form moral or personal influences. Is this possible if there was formal law? There is angrument ot say that we would have the same problem if formalism didn’t exist (i.e. the rules governing human relationships were more laissez-faire).
If there were no rules, it may give an excuse for anarchy to rise. With rules, there at least be some kind of knowledge that there is a sanction for the breach of a positive law, or even if there is no sanction, that the rule is there to act as a ‘higher’ benchmark to which everyone must adhere. Therefore, it is more certain to have formal rules, as we already know that people will obey them.
We may have to look at the animal world – it can be said that even animals operate under a social hierarchy for their natural survival.