The Written Word v Morality

This week in Jurisprudence we started on the topic of legal positivism. For those who are not so legally inclined, this is a particular approach to interpretation of laws. Basically, it means that a law should be interpreted as it was posited or originally written. The opposite of positivism is natural law, which is very much based on morals.

To put this all into perspective, we discussed the case of a woman in Germany during the Nazi regime. For whatever reason, she became sick of her husband and one day when he complained about the Nazis she reported him, knowing very well that he would be severely punished. Most likely killed.

Instead, the husband was sent to fight on the Eastern front- a fate seen as worse than death for some- and miraculously survived the war.

The issue arose later on, when the Nuremberg trials were taking place. The question was whether the wife could be convicted of attempted murder. She would have argued that she couldn’t on the basis that she had been adhering to the law at the time, Nazi law. On one hand, this would have made sense but it would have undeniably set an alarming precedent for the rest of the trials. Were the officers and soldiers that operated the concentration camps not following the word of the law?

It all comes down to the approach taken. I, myself, tend to favour positivism as a great number of problems arise when morality comes into conflict with the written law. I’m not saying that morality is not important but its relationship with the law should be heavily restricted when morality is such a nebulous concept. In the past homosexuality was seen as immoral and was, therefore, deemed to be illegal. This just demonstrates how liable morality is to change.

It’s situations like that, when the consequence of ‘morality’ is to infringe the rights of one particular group of people, that make me think that positivism is by far the better of the two approaches. A legislature can be as descriptive as it wants with it’s law making but when it comes down to interpreting legislation with a view to what is seen as ‘moral’ then we run the risk of only representing the interests of the majority at best and completely alienating the minority at worst.

To Jail, or Not to Jail?

As I have previously mentioned in another post, the law is not as black and white as we students are originally led to believe. And to say that that has caused me a great deal of confusion is an understatement.

This week in Jurisprudence we covered Critical Legal Studies, which essentially took American Realism to a whole new level. The ‘Crits’ (as we refer to them) believe that the law doesn’t function and proceed to tell us every reason why without giving a solid, plausible alternative to the current system.

What I found most shocking, however, was the Prime Time Investigation called ‘Sentencing Judges‘ that we were shown at the beginning of class. This video served to highlight the disparities with regards to judicial sentencing in Ireland and the statistics they uncovered left me in complete disbelief.

For comparative purposes, they took two judges in neighboring districts and compared their sentencing rates. The first judge had a 96% conviction rate in relation to drinking driving offences…

The second had a 2% conviction rate.

If I were before the court on a drink driving charge, I know who I’d most like to be standing before!

Our lecture also told us a story about a District Court judge who handed down a six month prison sentence to a shoplifter. Why such a long sentence? The Judge calculated it by finding out how many anchovies were in the tin that had been shoplifted. The answer was six, a month for each fish.

Although this module is fascinating and challenging, it is also a bit unnerving for a student. Knowing the law is clearly no longer enough, one must know the nuances of the system in order to succeed. But at the same time, with my co-op placement in a firm starting at the end of May, I’m glad I’ve chosen to take this module now.

All (wo)men created equal?

It’s true that I never really considered myself a feminist– until very recently that is. I would be the first to admit that that was predominantly as a result of my upbringing. I never knew discrimination because of my gender, never knew of the hardships women had to endure outside of what was in my primary school history books.

My life was- is- very comfortable and I’m ashamed to say that there was a time when I genuinely believed that feminism wasn’t needed, that women had gotten to a place where we no longer needed to assert our rights.

My opinion on the matter has done a 180 in the past couple of years, however. Even then, although I subscribed considerably to the views of feminists, I never referred to myself as such. It wasn’t until I was sitting in a class room listening to a male classmate belittle any hardship that women had ever endured by arguing that some men (some being the key word here- he knew of one man who had been ‘discriminated’ against because he was a man) have and do endure the same that I decided that yes, I would label myself as a feminist.

According to a recent study carried out, 1 in 3 women admit to having been the victim of psychological abuse by partner. 1 in 6 admitted to having suffered physical abuse at the hands of a partner (but this, according to the aforementioned classmate, does not tell us anything about the number of male victims- as if that takes away from its credibility).

If you were to ask me what kind of feminist I am (liberal, cultural, radical or postmodern), I would honestly say that I don’t fit rigidly into one category. But the goal is the same, even if some are more extreme in their views than others: equal opportunities regardless of gender.

And that is something that I can definitely get behind.

Law: Science or a Language?

From the moment we first step foot inside a lecture hall, law students are taught the rule of lawThis rule as outlined in this case coupled with that fact pattern equals forgone conclusion. These rules, or precedent in legal terms, form the basis of our education and, for the most part, we don’t question them. Unless, of course, you’re lucky enough to take Jurisprudence as a module- in which case you can pretty much set all of that aside or at the very least view it with some skepticism.

Jurisprudence by definition means the science of law, which appears to feed into what we’ve already come to accept about the study of law. That’s all well and good until you begin to delve deeper into the subject. One of the first questions asked of us by our lecturer was ‘Can law actually be described as a science?’ For the most part, we were all of the same opinion on the matter: no, it can’t. In my mind (although this is coming from someone who never really understood science), law is people orientated and anything that involves people to such an extent, that relies on accounts and testimonies of people- fallible as we are- cannot be classed as a science. There are too many variables, people are unpredictable.

Our lecturer seemed to agree with us, but his reasoning was somewhat different; he said that law cannot be seen as a science because its foundation is language and language is not a science. So where does that leave us? What is the message we should take away from this module, Jurisprudence, the science of law?

The answer to that question seems to lie in the arguments for and against the theories of Formalism and American Realism. The former fails to take into account morals and justice, meaning as long as the rules and principles are applied then the job is done. Those who subscribe to the latter believe that the rule of law should not be applied mechanically, that certainty is an illusion. I would be inclined to agree with the realists, even if it is just the idealistic young lawyer in me who wants to believe in the sanctity of justice.

Of course, there is a lot to be said for certainty– it’s vital when dealing with rules of any kind- but there needs to be a line, a point where a judge or jury thinks about it and says ‘yes, this is what the rule says but it would be completely unjust to apply it in this situation’. One of the important things about law is not only knowing to apply the rules but also knowing when not to apply the rules.

In the words of realist and American Supreme Court Judge, Oliver Wendell Holmes:

“The life of the law has not been logic; it has been experience.”