December 19, 2013

Tuh-mey-toh / Tuh-mah-toh.

Learning about the conceptualisations of legal reasoning and critical legal theories is absolutely fascinating to me.  As I was reading about the argument of formalism verse realism a lot of thought provoking questions came to mind:  Is a judge who bases a judicial decision or outcome on a personal bias, belief or intuitive or emotional response not inherently and innately human?  Can we really ever have a completely unbiased and neutral judiciary?  If we did, would this arm of power become unforgiving, indifferent and apathetic to the nature of humanity?

Personal experience is what moulds our individual characteristics and the way that we react to and assess situations.  While I do believe that an objective judgement is what is ultimately fair and just, if strict formalism was enforced upon legal reasoning, the judiciary’s requirement for statutory interpretation would be lost.  So there has to be some type of a balance and equilibrium.  Justice Michael Kirby puts it well when he states:

‘To pretend that the task is purely mechanical, strictly formal and wholly predictable may result in a few observers who love fairy stories sleeping better at night.  But it does not enhance the legal system.  It is not honest.  It is fundamentally incompatible with the creative element of the common law.’[1]

I like the view that the judiciary should aspire to take the objectivity from a formalistic process of legal reasoning and follow the rule of law as much as possible.  But I feel that consideration should be given to the realisation that it is likely that judges will at times make judicial decisions on policy choices, and the interpretation of the law is in their hands.  I think that judicial decisions may sometimes even be slightly favoured a certain way under the influence and bias of the sub-conscious.

Before delving in to legal studies, I did not realise how ambiguous the law could be and that so many different theories of what is ‘right’ were out there.  I really enjoyed the point made about the critical legal scholars who are of the view that ‘clear, fixed, stable interpretations of legal rules simply do not exist’, and there is ‘no such thing as a “legally correct decision”’.[2]  This legal theory also raised my awareness in regard to the fundamental contradictions within the legal system.  One example of a contradiction given in the textbook is that the law appears to be committed to a utilitarian approach of judgement, maximizing the overall wellbeing of society, and then also committed to the recognition and protection of individual rights.  Just some food for thought, I guess.

The information about postmodernism really caught my eye.  In particular the quote:

‘Postmodernism… insists that truth is made rather than found, and perceives reality as socially constructed.  This doesn’t mean that there is nothing “out there”.  The world is out there, but the ideas we form about it, and the things we say about it, are constructed by people.’[3]

Is truth subjective?  A person’s perception of truth certainly is.  This perception of truth is subject to our belief of what truth is, and that belief is usually greatly influenced by social conditions.  However, I do believe that there are undisputed truths out there.  Breaking free of social conditioning and exercising objective reasoning is possible, and necessary in the law.

The last thing I will mention that grabbed my attention was a view put forth by critical race theorists.  The textbook states that ‘[t]he insistence that everybody should be, can be or is treated equally by the law denies the unique voices of people from different races and cultures, voices that can and should be heard.’[4]  I do not think that there is such a thing as a universal ‘norm’.  Different cultures are going to respond differently to a judicial punishment.  Take for instance the recognition of customary law within Australia.  Our laws may not work for the Indigenous Australians and may even have a negative impact on the individual or their community.  Due consideration should certainly be given to these situations.[5]

It seems that everyone has an opinion as to how the law should be interpreted and enforced.  I am excited to find out how my opinions evolve throughout my studies and to learn how I can better equip myself to recognize the potential of the law to exact justice.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 379.
[2] Ibid 389.
[3] Ibid 391.
[4] Ibid 400.
[5] Ibid 103.

December 14, 2013


Ethical behaviour for legal professionals is guided by legislation, rules and regulations (i.e. the Australian Solicitors Conduct Rules), but ethical behaviour cannot be restricted to the abiding of rules alone.

While laws and ethics are both rules of conduct and they both regulate human behaviour and guide human choices,[1] I feel that ethical absolutes are indefinable.  There is not one ethical dilemma that every single individual of the human population would face in an identical manner.  Ethical dilemmas are called dilemmas for a reason.  It is evident from the readings, and from work experience within law firms, that as a lawyer I will face questions of ethics regularly and I know it is something that will take practice to handle gracefully and efficiently.  The best that I can do as a legal professional, is to critically evaluate the situation, determine the relevant legal rules, determine the relevant ethical principles and consider the consequences of my decision.[2]

My personal ethics are usually dependent on consequence.  I generally will analyse the consequences of a certain choice that will be experienced by others, and also by me. This is a quality that I will most likely carry through to my legal career.  However, I am sure that this trait will mature and develop as I grow professionally and personally.

Legal rules and ethical rules usually coincide, but there are times when they will be in conflict. A conflict between professional and personal ethics is something that raises reservations with me.  I do want to maintain a distance between my personal values and professional behaviour, but I do not want to abandon or set aside my personal values completely.[3]  The textbook suggests three other approaches to these type of conflicts:  responsible lawyering, a moral activist approach and the ethic of care.[4]  It is likely that throughout my career I will have the opportunity to practice all of these approaches and determine which works best for me and the specific situation at hand.  To handle and overcome these predicaments I will need to be confident with my choices once they are made, as it is probable that there would be many opposing arguments.

Overall, as a lawyer I would like to build a reputation as a professional with integrity and ethics and I am sure that further knowledge and experience will help me to build the characteristics I desire.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 443.
[2] Ibid 444.
[3] Ibid 465.
[4] Ibid 465 - 466.