In answering your chosen prompt, your response should a) demonstrate your comprehension of the unit materials, as well as your ability to contribute positively to academic legal-theoretical discussions by b) integrating further research from the literatureof legal thought, and c) offering commentary and arguments drawn from your own critical perspective.
Note also that, in answering your chosen prompt, you may call upon any of the textual resources from the Unit, including any of the contents from Part I.
Critically discuss the following claims:
‘The level of freedom of judges to decide cases before them as they wish is immediately proportional to the level of freedom of society as a whole. The reason is that judges are at their best when they have a diverse set of tools before them, to meet the challenges that arise before them in court. As such, discretion to experiment in employing a flexible armoury of remedies should be considered essential to the effectiveness of the courts in a liberal and democratic state.’
‘When faced with an irreducible plurality of ways of reasoning, the most reasonable and impartial thing for a judge to do is to seek, in their reasoning, to approximate the distribution which might be achieved under fair market conditions. Accordingly, judges have a duty to resort to economic resources any time a hard case throws up a conflict of fundamental values.’
‘Marx didn’t write much about law because, properly understood, there is no need for law in the truly communist state. History has, however, tended to favour capitalist orders. In this way, Marxist thought is deeply out of touch with the social developments of the last two hundred years, wherein systems of legal rights have consistently proven to be the preferred way of structuring interactions, both within and between states. There is little reason, therefore, to be troubled by any so-called Marxist jurisprudence; legal rights are here to stay.’
‘Feminism, at its heart, is a political project: it is concerned with the distribution of rights and resources among differently-gendered individuals in a polity. As such, its significance to the political discussions which create the law is very great indeed. The same is not true, however, for legal discussions of how to apply the law, once so created. Indeed: judges are duty-bound to put feminist thoughts out of mind when adjudicating, as they fall within the realm of private moral projects and political preferences which, while attractive, are nonetheless highly partial.’
‘Justice is fundamentally concerned with seeing that the Other gets their due. The elimination of inequalities – between men and women, between old and young, between rich and poor, between colonial and indigene – should, accordingly, be the central concern of jurisprudence. To the extent that it inhibits judges from engaging with these inequalities, the tradition of legal positivism must, therefore, be recognized to be defective as a form of jurisprudence.’
‘Democracy is built on the idea of civic equality, both in politics and before the law. Consecrating a reserved constitutional space for representatives of specific ethnicities is inconsistent with that fundamental idea. The point of political recognition is to unite the community; and to be just, law must speak as the community personified. A legal system which discriminates between different citizens’ voices cannot achieve these essential democratic goals.’
‘Postmodern theorists – from Nietzsche to Lyotard to Foucault to Butler to Derrida to Rorty – all suffer from a common inability to positively justify ethical positions, owing to the radical depth of their skepticism of the ‘truth’ of claims. This leaves postmodern theory fundamentally incapable of contributing to judicial thought, in which some final justification of an ethical position is essential.’
The most substantial assessment item addresses the Subject Learning Outcomes as a whole by tasking students with the submission of a 3000 word Research Essay responding to a question of the students choice directed at the materials from Part 2 of the subject’s content. Questions will be provided at the beginning of Part 2, and students will have 5 weeks to produce and submit their responses, which will fall due on Thursday, February 17th, 2022. This assessment will be worth 45% of the final grade.
The point of this assessment is for students to a) demonstrate their comprehension of the subject materials, as well as their ability to contribute positively to academic legaltheoretical discussions by b) integrating further research from the literature of legal thought, and c) offering commentary and arguments drawn from their own critical perspectives.
Put another way: although this assessment calls on students to conduct further research, it is just as important that students are able to express their own critical voice on questions of legal theory. This means that accurate depictions of the thoughts and opinions of other theorists, while important from the perspective of showing comprehension and participation in the discourse, will not be sufficient from the perspective of our search for students’ own critical expression. The distinctness of these criteria is indicated in the criteria below, and bear repeating: students will be expected to demonstrate both comprehension and criticality in their interactions with subject materials and further research. These expectations will be explored more fully in the teaching of the Subject.
Beyond these substantive demands, this assessment will also offer students the opportunity to show off their essay-writing-skills. Accordingly, this assessment will also assess students’ demonstrations of Communicative Skill, Argument Structure, adherence to Professional Style Conventions and adherence to Professional Citation Practices (that is, the Australian Guide to Legal Citation).
