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Legal Theory Assignments

This course stimulates students to develop a interest, that is reflective, in the examination of law -, its social conditions, its intellectual foundations, its relationships with politics and morality, and its relationship with other study areas, particularly ethics, social theory and philosophy.

 

In the following sense, the course is theoretical. In their practical, daily activities, attorneys must take and take, much for granted: about the functions and purposes of its doctrines and institutions, about the nature of the law and about the overall worth of it. They practice in authorized legal systems, with more or less institutions, traditions, rules and techniques that are settled. They basically think within the arrangements and categories offered by the legal system, instead of thinking about them.

 

The concern of Legal Theory is to think about those frameworks precisely that attorneys think within. The goal of the course is to discuss and probe theoretical questions related to the law, that underpin the practical aspects of the law.

 

These questions imply matters of analysis and description – what’s going on?; of evaluation – is what is going on what should be going on?; and of comparison – what else goes on elsewhere and what can it tell us about what goes on here? – and pretended answers to such inquiries that are relied upon and assumed constantly in legal action and talk.

 

However, legal actors, – like all social actors – are almost never aware of the range in which, or the ways in which, what they take on in order to be perfectly natural, impossible and obvious to imagine otherwise reflects particular, usually common presumptions that are rarely questioned even if they are questionable.

 

Legal theory study these assumptions, clarifies the concerns with which they are preoccupied and quite often shows these concerns to be more contentious and puzzling than is usually assumed. It introduces students with, and offers them possibilities to question, think about, defend and criticize, some of the most relevant ingredients in their own line of thoughts in relation to the law; these ingredients are all the more relevant for not being generally recognized argument matters or even discussion topics at all.

 

There are no predetermined ‘results’ to theoretical inquiry, or perhaps just one. Students will decide for themselves whether they develop from such questioning with worse or better reasons to think what they started with, or whether they should believe different or new things. However they begin, on the other hand, they are unlikely to develop thinking that the discussed inquiries in the course have obvious, uncontroversial or simple answers.

 

This course discusses, in general terms, the effects for law of the modern growing of two basic ideas –liberalism as an organizing context for thinking about political life and legal positivism as a dominant approach to understanding law. Legal positivism, is basically, the idea that law validity is a subject that can be, independently of non-legal (e.g. moral) concerns, worked out.

 

A liberal comprehension of politics between other things removes the belief of ourselves as self-governing (as autonomous) as its basic worth and assesses legal practices in relation to how badly or well they contribute to this worth. These accounts of politics and laws are being discussed with plenty of time.

 

A variety of basic ideas that are associated with modern moral/ legal/political philosophy are discusses along the way. These include – the legal analysis nature, the difference in moral theory between the good and the right; the separation of law from other areas of social life, personal and moral autonomy, liberalism’ relationship to rights and to religious and cultural difference, and law’ relationship to democracy, justice and the rule of law.

 

We relate these ideas to specific ‘problems’ of modern legal practice in order to make these ideas more concrete. A comprehension of the later classes subject matters will show the kind of issues that will be discussed: relativism and ‘western’ human rights, the character of public law (ideas associated with constitutionalism and rule of law) and the postmodern/post-structural and feminist challenges in relation to the effort of comprehending law.

 

You may have handled with the contemporary law on some of these subjects in other law courses. What philosophy has to say about these concerns is what we are concerned with.

 

Main Topics: The course as a whole with three large themes

 

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

 

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

 

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

 

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