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.