Law Foundation

Law Foundation 2010
Conditional Statements ............................................................................................................6 Deductive Argument ................................................................................................................6 Modus Ponens (MP) ................................................................................................................. 7 Modus Tollens (MT) ................................................................................................................. 7 Hypothetical Syllogism (HS) .................................................................................................... 7 Disjunctive Syllogism ............................................................................................................. 8 Induction ................................................................................................................................ 8 Strong Induction ................................................................................................................. 8 Weak Induction ................................................................................................................... 8 Analogical Argument .......................................................................................................... 8 Single Inductive Generalisation .............................................................................................. 8 Probability .............................................................................................................................. 8 Legal Reasoning ......................................................................................................................9 Judgment .................................................................................................................................9 New principles are found using inductive generalisation ....................................................... 10 Formal fallacies and fallacies of relevance ...................................................................... 11 Formal fallacies ..................................................................................................................... 11 Fallacies of relevance ............................................................................................................. 11 Ad populum ........................................................................................................................... 11 Straw man fallacy .................................................................................................................. 11 Ad Hominem .......................................................................................................................... 12 Red Herring ........................................................................................................................... 12 Prosecutors fallacy ................................................................................................................ 12 Bayes Theorem ..................................................................................................................... 12 Weak Inductions and presumptions ...................................................................................... 13 Weak analogy ........................................................................................................................ 13 Hasty Generalisation and false cause ..................................................................................... 13 Argument from Authority....................................................................................................... 13 False Dichotomy .................................................................................................................... 14 Science and Law ............................................................................................................. 15 Scientific theory and method ................................................................................................. 15 Nave inductivism .................................................................................................................. 15 Testing type 1 theories: proportions ....................................................................................... 15 Correlations (1) ...................................................................................................................... 16 Correlations (2) ...................................................................................................................... 16 Causal hypothesis .................................................................................................................. 16 Prospective and retrospective tests ........................................................................................ 16 Fallacies of statistical reasoning ............................................................................................ 17 Precautionary Principle ......................................................................................................... 17 Theoretical Hypotheses.......................................................................................................... 18 Deductive Reasoning in scientific theory testing .................................................................... 18 Fallacies of Type 2 testing ...................................................................................................... 19
Law Foundation Allen Hsu 2010
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Ad hoc rescue ........................................................................................................................ 19 Ethics and Law ............................................................................................................... 21 Metaethics ............................................................................................................................. 21 Nature of moral ideas ............................................................................................................. 21 Moral Ideas ............................................................................................................................ 21 Moral psychology................................................................................................................... 21 Normative ethical theories ..................................................................................................... 21 Utilitarianism......................................................................................................................... 22 Types of utilitarianism ........................................................................................................... 22 Critique of Rule utilitarianism ................................................................................................ 22 Kant ....................................................................................................................................... 22 Ross ....................................................................................................................................... 22 Aristotle ................................................................................................................................. 23 Feminism and Aristotle .......................................................................................................... 23 Relation of ethical theories to law .......................................................................................... 23 Legal theory ........................................................................................................................... 23 Human Nature, Human Rights and Law .......................................................................... 24 Rights .................................................................................................................................... 24 Acquired Rights.................................................................................................................. 24 Positional Rights ................................................................................................................ 24 Moral rights ........................................................................................................................ 24 Classical liberalism ................................................................................................................ 25 Classical liberalism and justice .............................................................................................. 26 Early bills of rights ................................................................................................................. 26 Social liberalism .................................................................................................................... 27 Human needs ......................................................................................................................... 27 Against methodological individualism .................................................................................. 28 Social liberal ideas of justice .................................................................................................. 29 The UN and the UDHR (Universal Declaration of Human Rights) ........................................... 29 Neo Liberalism ....................................................................................................................... 30 Neo-liberalism and international law ..................................................................................... 31 Politics ........................................................................................................................... 32 Separation of powers .......................................................................................................... 32 Rule of law ............................................................................................................................. 33 Voting Rights ......................................................................................................................... 33 Social democracy and after .................................................................................................... 33 Neo-liberalism and democracy............................................................................................... 34 Democratic markets and corporations.................................................................................... 35 Free world trade democracy ................................................................................................... 35 Democracy and the power of money ...................................................................................... 35 Lack of democratic depth ....................................................................................................... 36 Political Parties ...................................................................................................................... 36
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Increasing democratisation.................................................................................................... 36 Deeper Democracy ................................................................................................................. 37 What is Marxism ............................................................................................................ 37 Three Sources of Marxism ...................................................................................................... 37 Who are the Marxists? ............................................................................................................ 37 Marxist economic analysis ..................................................................................................... 37 Marxism and the role of law ................................................................................................... 38 The Soviet experience ............................................................................................................ 38 Marxism jurisprudence .......................................................................................................... 38 Essential propositions ............................................................................................................ 39 Socialism, democracy and the state ....................................................................................... 39 The transition to communism ................................................................................................ 39 Interaction between law and social structure ......................................................................... 39 Law and ideology .................................................................................................................. 40 Law and Human Nature ........................................................................................................ 40 Leon Trotskys observations .................................................................................................. 40 Contemporary relevance ....................................................................................................... 40 Economic efficiency and law .......................................................................................... 42 Neoclassical Economics ......................................................................................................... 42 Efficiency ............................................................................................................................... 42 Neo-liberalism and neoclassical theory.................................................................................. 42 Macroeconomics ................................................................................................................ 43 Market failure and externalities.......................................................................................... 43 Corporations .......................................................................................................................... 43 Regulating corporations......................................................................................................... 43 Insider Trading ......................................................................................................................44 The international level ...........................................................................................................44 International governance .......................................................................................................44 Problems of the market .................................................................................................. 45 Inefficient market .................................................................................................................. 45 The business cycle ................................................................................................................. 45 Limits to growth ..................................................................................................................... 45 Monopoly and Obligopoly ......................................................................................................46 Keynes Analysis ..................................................................................................................... 46 Military Keyeesianism ............................................................................................................ 47 The end of the post-war boom ................................................................................................ 47 Deepening debt crisis ............................................................................................................. 47 Inequality and efficiency ....................................................................................................... 47 Inefficient share markets ....................................................................................................... 47 Distributive Justice ........................................................................................................ 48 Neo-liberalism and inequality ................................................................................................48 Free Markets ..........................................................................................................................48
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Non-liberal approach to human rights ...................................................................................48 Corporations .......................................................................................................................... 49 Issues in economic theory ......................................................................................................49 Conflict of rights .................................................................................................................... 49 Physical capital...................................................................................................................... 49 Risks ...................................................................................................................................... 49 Executive salaries .................................................................................................................. 50 Stress ..................................................................................................................................... 50 Legal issues ........................................................................................................................... 50
Salomon v Salomon & Co Ltd [1897] AC 22: ..................................................................... 50

Problems with bringing actions against corporate entities: ................................................ 50 Epidemiology ......................................................................................................................... 50 Social issues .......................................................................................................................... 50 Ethical issues ......................................................................................................................... 51 Australian developments ....................................................................................................... 51 Corruption of the political process ......................................................................................... 51 Justice and equality ............................................................................................................... 51 Economic reforms .................................................................................................................. 52 Terrorism & War .............................................................................................................53 Striking a balance? ................................................................................................................ 53 80 The Constitution ................................................................................................... 53 The military call-out legislation ............................................................................................. 54 119 the Constitution ................................................................................................... 54
Thomas v Mowbray [2007] HCA 33 .................................................................................. 54 Australian Communist Party v The Commonwealth (1951) 83 CLR 1: ............................... 55
The anti-terrorism legislation ................................................................................................. 55 ASIO operations cloaked in secrecy ....................................................................................... 57 Just Wars and Criminal Laws ................................................................................................. 57 Morality ................................................................................................................................. 57 Self-defence and criminal law ................................................................................................ 58 From individuals to social structures ..................................................................................... 58 From crime to warfare ............................................................................................................ 58 Foundations of International criminal law ............................................................................. 58 Humanitarian intervention .................................................................................................... 59 Violence and law enforcement ...............................................................................................60 Problems at the international level ........................................................................................60 Proposals for reform ..............................................................................................................60 Refugees .........................................................................................................................61 The Refugee Convention ........................................................................................................ 61
Calado v MIMA [1997] 1490 FCA (per Tamberlin J): ......................................................... 61 Wang v MIMA [2000] FCA 1599 (per Merkel): .................................................................. 61 Church of New Faith v The Commissioner of Pay Roll Tax (Victoria) [1983] HCA 40: ....... 61
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Saliba v MIMA (1998) 89 FCR 38 at 49: ............................................................................ 61 Applicant A v MIEA [1997] HCA 4: ................................................................................... 62
Art 31(1) of Refugee Convention: ................................................................................. 62 Art 31(2) of Refugee Convention: ................................................................................. 62 Art 32(1) of Refugee Convention: ................................................................................. 62 Art 32(2) of Refugee Convention: ................................................................................. 62 Art 32(3) of Refugee Convention: ................................................................................. 62 Art 33 of Refugee Convention: ..................................................................................... 62 How the refugee numbers have grown ................................................................................... 62 Moves to restrict the right to asylum ...................................................................................... 62 The Migration Act .................................................................................................................. 63 The Tampa case ..................................................................................................................... 63
Ruddock v Vadarlis [2001] FCA 1329: (page 447) ............................................................. 63

Basic contradictions...............................................................................................................64 Echoes of White Australia ...................................................................................................64 Defending rights within the Convention ................................................................................64 High Court sanctions indefinite detention..............................................................................64
Al-Kateb v Godwin [2004] HCA 37: (page 455) .................................................................64 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36: ..................................................................................................... 65
The Conventions fundamental flaws ..................................................................................... 65 The need for an alternative perspective ................................................................................. 65 Citizens and democratic rights ............................................................................................... 65
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1: . 65
Global citizenship .................................................................................................................. 66
Conditional Statements
A is said to be sufficient condition for B whenever the occurrence of A is all that is needed for the occurrence of B, or the truth of A guarantees or necessitates the truth of B. B is said to be a necessary condition for A whenever A cannot occur without the occurrence of B, or A cannot be true unless B is true. Harder object will scratch softer object Diamond did not scratch glass Therefore, diamond is not harder than glass
Deductive Argument
Deductive argument are generally evaluated in terms of validity and soundness, never true or false. An argument is valid if it is impossible both for its premises to be true and its conclusion to be false. Deductive arguments are attempts to show that a conclusion necessarily follows from a set of premise. A deductive argument is sound of its premises are true. If premises are true it is impossible for conclusion to be false. 3 steps: 1. Names a definitive property (e.g. Every triangle has 3 sides) Page 6
2. 3.
Proclaims a particular item fits into a category that has been composed (The figure I drew is a triangle) Deductive reasoning, connecting the truth stated in step 1 to the particular case (The triangle I drew has 3 sides).
Modus Ponens (MP)

The argument has 2 premises. The first premise is the if-then namely P implies Q. The second premise is that P, the antecedent of the conditional claim is true. From these 2 premises it can be logically concluded that Q, the consequent of the conditional claim, must be true as well. P1 P2 C P1 P2 C If A, then B A B If today is Tuesday, then I will go to work Today is Tuesday I will go to work.
Modus Tollens (MT)

Argument has 2 premises. The first premise is the conditional if-then statement, namely that P implies Q. The second premise is that Q is false. From these 2 premises, it can be logically concluded that P must be false. P1 P2 C P1 P2 C If A then B Not B Not A If the guard dog detects an intruder, the dog will bark The dog did not bark No intruder was detected
This is a valid argument since it is not possible for the premises to be true and the conclusion false.
Hypothetical Syllogism (HS)

If hypothetical syllogism is one of the proof rules in classical logic that may or may not be available in a non-classical logic. The hypothetical syllogism is a valid argument of the following: PQ QR PR If I do not wake up, then I cannot go to work If I do not go to work, then I will not get paid If I do not wake up, then I will not get paid.
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Disjunctive Syllogism
We are told one of two arguments is true; then we are told that it is not the former that is true; so we infer that it has to be the latter that is true. It is possible for premise to be true and conclusion false. It is either blue or red It is not red it is blue If premises are true, and the argument is valid, it is a sound argument.
Induction
Allows for possibility that the conclusion is false even where all of the premises are true. Strong Induction This esky contains 30 cans of beer 25 cans selected at random were found to be VB Probably all cans are VB Could be false but we have good reason to accept the conclusion. Weak Induction I always hand pictures on nails all pictures hang from nails. The link between premise and conclusion is very weak. Not only is it possible for the conclusion to be false given the premise, it is even fairly likely that the conclusion is false. Not all pictures are hung from nails; moreover, not all pictures are hung. Thus weak induction. Analogical Argument An analogy relies on the inference that the attributes known to be shared (the similarities) imply that C is also a shared property. I has attributed A, B and C J has attributes A and B So J has attribute C The best reasoning in an argument from analogy can only make the conclusion probable given the truth of the premises, not certain.
Single Inductive Generalisation

Simple induction proceeds from a premise about a sample group to a conclusion about another individual. Portion Q of the known instances of population P has attribute A Individual I is another member of P there is a probability corresponding to Q that I has A.
Probability
When we consider probability of any specific event A happening, then P(A) + P(not A) = 1.0 = 100%
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Legal Reasoning
Concluding statement of a prosecutor or Crown for the plaintiff is likely to take the form of a deductive, modus-ponens type argument. P1 If A and B (particular types of fact are found to pertain), then C (a certain type of legal situation is established to pertain) and D (certain types of legal response must follow). A and B (the sorts of facts in question have been established to pertain in this case) Therefore, C and D (the relevant legal response must follow) If he killed with intent, then he is guilty of murder and life imprisonment He killed with intent Therefore, he murdered and life imprisonment
P2 C P1 P2 C
The first premise may be true as a matter of law, and the argument might be valid, but the crucial question is whether it is sound: in other words, whether second premise is also true (or well supported). The concluding statement of counsel for the accused or the defendant is likely to take the form of a deductive, modus tollens type argument: P1 P2 C P1 P2 C if C and D (if particular legal consequence are to follow), then A (a particular type of fact needs to be proved to retain). Not A (this type of fact has not been proved to pertain in this case) Therefore (not C and D) If killing and intent is murder He did not murder Therefore, he did not kill and no intent
Judgment
Some relevant general principles are derived by inductive generalisation from past cases, or by direct reference to statements of such common law principles in previous cases or to legislation. Hirachand Punamchand v Temple (1911) 2 KB 330, the rule in question does not allow a creditor to sue a debtor for the remainder of a debt if that creditor has agreed to accept a lessor amount from some third party. In this case, money-lenders Hirachand sued Temple, to whom they lent money after cashing a cheque from debtors father who had stipulated that said cheque was in full settlement of the debt. The judge argued: If a third person teps in and gives a consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that upon the acceptance of the money by the plaintiffs with full knowledge of the terms on which it was offered, the debt was absolutely extinguished. Modus Ponens form of argument was used: P1 P2 If a third person offers some amount in full discharge of a debt and the creditor accepts this amount then the debt is absolutely extinguished. In this case both of these conditions were fulfilled (in cashing the cheque the creditor accepted the money in question as discharge of the debt)
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Therefore in this case the debt was absolutely extinguished.
New principles are found using inductive generalisation

Heaven v Pender (1803) 11 QDD 503. Plaintiff, a painter, had been injured when some scaffolding supplied by the defendant to the plaintiffs employer collapsed. Brett MR reasoned that there were many separate cases in which a person owe a duty of care not to injure others. Specifically he mentioned four such classes when two drivers [of carriages] or two ships are approaching one another, the case of a railway company carrying a passenger, and cases with regard to the condition in which an owner or occupier leaves his house or property. From such cases he drew out the following principle: Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care
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Formal fallacies and fallacies of relevance

Arguments which mislead people into thinking that they are good when they are not, are called fallacies.
Formal fallacies
Formal fallacy is a pattern of reasoning that is always wrong. P1 P2 C P1 P2 C If P then Q Q P If Bill Gates owns Fort Knox, then he is rich. Bill Gates is rich Bill Gates owns Fort Knox
Argument with formal fallacy could still contain all true premises.
Fallacies of relevance
Informal fallacies are those that can be detected only through analysis of the content of the argument. Fallacies of relevance substitute psychologically or emotionally appealing connections between premises and conclusions for logically relevant connections, so that the conclusion can seem to follow when really it does not.
Ad populum
This is known as appeal to; The masses; Belief; The people; The majority This fallacy is used while trying to convince a person that a widely popular thought is true, by using power of numbers: 50 million Elvis fans cant be wrong In a court of law, the jury vote by majority, therefore they will always make the correct decision. Everyone jaywalks here and as long as I look carefully, nothing will happen.
Straw man fallacy

This is used to distort opponents argument. It is creating an illusion that weve refuted a proposition by substituting superficially similar yet unequivalent proposition and reflecting it, without ever having actually refuted the original position. Person 1: We should liberalise the laws on beer Person 2: No, any society with unrestricted access to intoxidants loses work ethic and goes only for immediate gratification. The proposal was to relax laws on beer. Person B has exaggerated this to a position in order to defend. i.e. unrestricted access to intoxicants. More commonly used in political debate.
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Ad Hominem
This is an attempt to link the validity of premise to a characteristic or belief of the person advocating the premise. Directs attention to the (alleged) bad character of a person involved in presenting their own logical argument, and away from the real structure and content of that persons argument. This is used to belittle, insult or discredit ones opponent in order to invalid his or her argument, but can also involve pointing out factual but ostensible character flaws or actions which are irrelevant to the opponents argument. P1 P2 C Smith says heroin should be legalised Smith is a communist/drug addict/prostitute her argument is no good and we should reject it.
Red Herring
It is an answer, given in reply to a questioner, that goes beyond an innocent logical relevance. A red herring is a deliberate attempt to divert a process of enquiry by changing the subject. I think that we should make the academic requirements stricter for students. I recommend that you support this because we are in a budget crisis and we do not want our salaries affected. Topic A is the proposal. Topic B is the possible effect of a budget crisis on teacher salaries. Topic A is abandoned and the unrelated topic B is introduced. A red herring is a debating tactic that seeks to divert an opponent.
Prosecutors fallacy
The prosecutors fallacy is a systematic fallacious reasoning (in the red herring category) in a legal context. This has become particularly significant with the advent of DNA fingerprinting, and has been responsible for major miscarriage of justice. This fallacy usually results in assuming that the prior probability that a piece of evidence would implicate a randomly chosen number of the population is equal to the probability that it would implicate the defendant. If a defendant and perpetrator match on blood type found in 10% of the population, there is a 10% probability that the defendant would have the blood type if innocent and therefore a 90% probability that they are guilty. 10% figure is called a random match probability; in other words, the chance that a randomly selected individual will exhibit the property in question. Assuming that anyone in population of 100,000 people would have done it, the blood matching will narrow figure down to 10,000. The match indicates a 1 in 10,000 chance of guilt, rather than 90%. It confuses probability of innocence given a match with that of a match given innocence.
Bayes Theorem
Shows relation between a conditional probability and its reverse form. A cab was involved in a hit and run at night. Two cab companies blue and green, they both operate in the city. The facts are: 85% of cabs are green 15% of cabs are blue A witness testifies cab was blue. The court tested reliability of the witness under the same circumstances that existed on the night of accident and concluded that witness correctly identified each one of the two colours 80% of the time and failed 20% of the time. What is the probability that the cab involved in the accident was actually blue? Law Foundation Allen Hsu 2010 Page 12
Pr (A|B) = Pr (B/A) * (PrA/PrB) Cab is blue and correctly indentified as blue [0.15 * 0.80] Cab is green and incorrectly identified as blue [0.85 * 0.20] Therefore blue cab = [0.15*0.80] + [0.85*0.20] = 0.29 Pr(A|B) = 0.80 * (0.15/0.29) = 0.41 40% chance cab was blue, less than half.
Weak Inductions and presumptions Weak analogy

The fallacy of weak analogy is committed when the analogy is not strong enough to support the conclusion that is drawn. In an analogy, two systems are shown to have common sub-function and/or properties and therefore additional corresponding sub-functions and/or properties are proposed and shown to exist. This is repeated for all sub-functions until analogy ultimately fails. P1 P2 C P1 P2 C Entity A has attributes a, b, c and z Entity B has attributes a, b, c entity B probably has attribute z also. The universe displays order and complexity and is created by God A wrist watch displays order and complexity wrist watches is probably created by God too.
Hasty Generalisation and false cause

It is a logical fallacy of faulty generalisation by reaching an inductive generalisation based on insufficient evidence Person A and B walks past a pawn shop. Person A remarks that a watch in a window display looks like one his grandfather used to wear. On the basis of his remark, person B concludes that: As grandfather pawned his watch; or As grandfather had expensive tastes in jewellery; or As grandfather was ostentatious; or As grandfather cannot tell the time anymore
Person A drives through Town X for the first time. He sees 10 people, all of them children. Person A returns to his town and reports that there are no adult residents in Town X.
Argument from Authority

This argument is uncritically accepted on the basis of the authority of the arguer, without serious consideration of its real, logical strength. It is a fallacy of defective induction, where it is argued that a statement is correct because the statement is made by a person or source that is commonly regarded as authoritative. The most general structure is: Source A says that P is true Source A is authoritative P is true
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This is a fallacy because the truth or falsity of the claim is not necessarily related to the personal qualities of the claimant, and because the premises can be true, and the conclusion false (an authoritative claim can turn out to be false). In Australia there must be a correlation between the field of knowledge about which a witness is to testify and that witness qualifications and experience. A trial judge must ascertain this correlation by identifying the issue about which the witness is to testify and comparing this issue with the witness qualifications and experience.
False Dichotomy
This involves a situation which only 2 alternatives are considered when in fact there are other options. Tendency to think in extremes black and white thinking. Keywords used are either, or
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Science and Law

What is science? Science is the concerted human effort to understand, or to understand better, the history of the natural world and how the natural world works, with observable physical evidence as the basis of that understanding1. It is done through observation of natural phenomena, and/or through experimentation that tries to simulate natural processes under controlled conditions There are significant influences of scientific methods on legal methods. Problems of scientific method in the courtroom Role of scientific evidence in establishing causation Role of social scientific research in law reform
Scientific theory and method

Uses both inductive and deductive reasoning Must be capable of verification/falsification able to be tested by experiment or observation
Nave inductivism
General statements or theories are based on empirical observations, which are subsequently generalised into statements which can either be regarded as true or probably true. Metal A expanded when heated Metal B expanded when heated Metal C expanded when heated We then make the generalisation to a universal hypothesis All metals expand when heated Conditions for legitimate generalisation is that: Number of observation statements must be large Observations must be repeated among wide variety of conditions No accepted observation should conflict with universal law All metals expand when heated Therefore, this new metal will expand if heated.
From there we can come to a deduction:
Testing type 1 theories: proportions

Simple statistical hypothesis Correlations Causal hypothesis
Each of these statements could therefore be expressed in a statement with the following structure: X per cent of (population) are (property) The percentage tells us the relative number of proportions of the members of the population that exhibit the property in question. Examples: 12% of sentenced prisoners in gaol in Australia on 30 June 2000 had been convicted of sexual offences 4% of male prisoners serving a sentence of 12 months or more in the NSW prison system in 1973 had completed the HSC.
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80% of female prisoners in NSW prisons in 1996 had been in at least one violent relationship.
For a statistical induction to be successful, the sample must adequately represent the population. Larger sample sizes give better information. A larger sample with the same ME (margin of error) gives a higher confidence level.
Correlations (1)
So far we have only looked at single variable properties of members of particular population. Correlations are concerned with the strength of the relationships between the 2 variables. Relationship of correlation is not the same thing as a relation of causation, correlations are generally indicative of causal relationship of some kind. Correlation itself is not sufficient to demonstrate causation. Correlation is measure with a correlations coefficient (CC). A perfect positive correlation is 1 and a perfect negative correlation is -1. When variable X and variable Y are substantially correlated, it might be X is causing Y; it might by Y that is causing X; it might be that both are caused by a third variable or set of variables or that each is a single aspect of a multifaceted but indivisible whole, as with the similar speeds of the two front wheels of a car.
Correlations (2)
Correlation that allows us to carry over the ideas of sampling and magin and error considered earlier. In a population whose members have properties P (and not P) and Q (and not Q), P is positively correlated with Q when the proportion of Qs amongst the Ps is greater than the proportion of Qs amongst the non-Ps.
Causal hypothesis
a hypothesis that predicts a cause-and-effect relationship among the variables to be studied. Scientific researchers generally act as though everything has a cause, and they aim to find the cause in their chosen area of research. Smoking causes lung cancer. Early suggestions, particularly supported by the tobacco industry, included the idea that bodily precursors to cancer cause people to take up smoking, or that people had a genetic predisposition to both taking up smoking and developing lung cancer. All of scientific hypotheses require reliable testing procedures for definitely establishing the existence of some suggestive correlation.
Prospective and retrospective tests

Prospective Study The basic idea of a prospective design is to find two groups of subjects, on average, similar in every feature except for the fact that all members of one group exhibit the suspected causal factor (e.g. smoking) and all members of the other do not. Both groups are then followed into the future, and at some point they are compared for the effect variables under investigation (presumably no encouragement is offered to continue smoking, and hopefully strong discouragement). Basic principles of a prospective study are: 1. 2. 3. Find a homogenous population or collect masses of data in a non-homogenous population relating to possibly relevant variables; Distinguish those with and without the supposed cause and match groups; Follow both groups long enough for the effect to appear;
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4. Compare percentage of effects amongst possible cause group with percentage of effects amongst non-cause group. Retrospective study In this case, we begin with a sample of subjects that already have the effect and look back in time to isolate a suspected causal factor. An example is a British study which looked at all st st women younger than 36 diagnosed as having breast cancer between 1 January 1982 and 31 December 1985, in 11 different areas of England, Scotland and Wales. Total of 1049 women. Amongst those with breast cancer, 470 of 755 or 62% had used oral contraceptives for more than 4 years. Amongst the controls, 390 of 755 or 52% have used oral contraceptives for more than 4 years. Problem with retrospective study is that the data they yield allow no estimate of the effectiveness of a causal factor.
Fallacies of statistical reasoning

Studies indicate out of 1,000 people with high cholesterol 220 of these people can be prevented from becoming heart attack victims (through the use of this drug). The clinical trial showed 1,000 people taking pravastatin over five years, 32 died compared to 41 in a placebo control group. The relative risk reduction was indeed 22% and the drug manufacturers were happy to use this figure to promote their product. However, absolute risk needs to be calculated from a sample of 1,000, from 41 to 32 that is a reduction of 9 per 1,000 sampled not 100. So the absolute risk reduction is 9 in 1,000.
Precautionary Principle
Precautionary principle may be defined as caution in advance, it exists in 2 elements: 1. an expression of a need by decision-makers to anticipate harm before it occurs. Within this element lies an implicit reversal of the onus of proof: under the precautionary principle it is the responsibility of an activity proponent to establish that the proposed activity will not (or is very unlikely to) result in significant harm. the establishment of an obligation, if the level of harm may be high, for action to prevent or minimise such harm even when the absence of scientific certainty makes it difficult to predict the likelihood of harm occurring, or the level of harm should it occur. The need for control measures increases with both the level of possible harm and the degree of uncertainty.
2.
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Theoretical Hypotheses
In order to understand Type 2 theories, we must first recognise that the further progress of our understanding of the nature, properties, powers and behaviours of things requires us to go beyond directly observable and measurable phenomena. We need to upon imagination to construct hypothetical models of such unperceivable structures and mechanisms. 2. Under guidance of these models we construct instruments, extensions to our sensory systems, capable of rendering such structures and mechanisms more or less directly perceptible. 3. We find something similar to the phenomenon in need of explanation, but whose causation has already been established, typically through direct observation. 4. We then reason back to similar, hypothetical causes for the phenomenon of known causation, allowing for the likely difference of scale involved. P1 We know that object d (the mountain) resembles object X (the molehill) in respects e, f and g (it is made of similar earthy materials, has a similar location, rising up from the surface of the earth and a similar conical shape). It also differs from object X in respects H and J (it is much bigger and older). We know that object X (or objects of type X) is a product (or are products) of the action of causal agent Y (or agents of type Y) acting upon some pre-given material Z in circumstances a, b, c (this molehill has been brought into being by a mole piling up earth and stones from its underground tunnelling last night). We therefore formulate the hypothesis that the object D is (possibly) the products of the action of a causal agent J, similar to Y, but differing from it in ways related to H and J (the mountain has been brought into being by a giant mole tunnelling under the earth long ago in the dreamtime). 1.
P2
Hypothesis: 1. Such hypotheses must be internally consistent, possible and plausible. In the mole theory, we would ask things such as: Does what we know of a small moles physiology present any problems for our hypothetical large mole? Can the design be effectively scaled up? Would such a scaled up version be strong enough to shift the sorts of weights of material involved? We need to consider the consistency of the new theory with other theories we already accepted as true. Does the theory generally fit in with what we know of biology and geology? Could the moles have lived in the sorts of environments we believe existed in the remote past? A theory that does not conflict with our background beliefs is said to have the virtue of conservatism. Most important as far as science is concerned is that the theory be testable and capable of generating significant new knowledge of matters of empirical fact, over and above providing a convincing explanation of the (problematic) facts that originally motivated its formulation. Since science is the search for knowledge, its interested only in those hypotheses that can be tested if a hypothesis cant be tested, there is no way to determine whether its true or false.
2.
3.
Schick and Vaughn observe:
Deductive Reasoning in scientific theory testing

DeMorgans law: P C Not (A and B) So not A or not B (and vice versa)
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Consider the following model: M C P Comet of type X strikes land at time Y (and the land it struck is still visible) A comprehensive search of all land areas is carried out (of a type suitable for detecting comet craters) A crater of appropriate type is found
We now have a definite prediction: If (M and C) then P If (not M and C) then very probably not P P1 P2 C1 C2 If (M and C) then P Not P So not (M and C) (MT) So not M or not C (DeM)
So lets say we found a crater at the tip of the Yucatan peninsula, in this case modus tollens and DeMorgan give us good grounds for taking the theory seriously and continuing to develop it further: P1 P2 C1 C2 C3 P3 C4 If not M and C then very probably not P But P That is, not not P (double negation) So, very probably not (not M and C) (MT) So, very probably, M or not C (DeM) And assuming were right about C Very probably M, or something close to it.
Fallacies of Type 2 testing

The general mistake in these fallacious patterns is the failure to satisfy the second condition of a good test (a prediction not likely to be fulfilled if the theory is false). But the failure gets disguised in various ways. In fact, no new predictions can be derived from the theory, but it looks as if it satisfies condition two by virtue of the (alleged) mystery surrounding the past events in question; they could not have happened of the theory were not true. Example: P1 P2 C The pyramids could exist only if aliens built them The pyramids do exist So aliens built them
P1 is simply false; there are other possibilities how pyramids could have been built. So really, they give us the fallacy of affirming the consequent: P1 P2 C If aliens (of our favoured kind) had come to Earth in the past, then pyramids would exist, because they had built them. Pyramids do exist So aliens came to Earth in the past, and built the pyramids.
Ad hoc rescue
The prediction is refuted and a new theory is concocted to explain why this happened, despite the (supposed) truth of the original theory. This is not a fallacy, but rather an important part of scientific advance. But if new theory is not independently testable, worse still, of the Law Foundation Allen Hsu 2010 Page 19
observations that refuted the original predictions are then presented as evidence confirming the modified theory, then a fallacy is involved. This is example of affirming the consequent: P1 P2 C If the new (modified) hypothesis is true, then it follows that there will be observations that refute the original hypothesis. We have made an observation that refutes the original hypothesis. Therefore, the new (modified) hypothesis is true.
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Ethics and Law

Ethical theory Rational justification of our moral ideas and decisions Morality Law Professional ethics and morality Adversarial advocacy Lawyers primary moral responsibility is to advance their clients particular interests with the maximum commitment allowed by law. Responsible lawyering lawyer is an officer of the court, attempt to make the law work as fairly and justly as possible. Moral activism it is not appropriate for lawyers to have a special ethics defined by their particular social role.
Metaethics
It is closely bound with areas of philosophy known as metaphysics and epistemology. Metaphysics (the nature of things in the world) fundamental nature of moral beliefs, judgments and actions. Epistemology (how determined/justified. we know things) How moral beliefs/judgments are
Moral judgments are distinguished by their reference to obligation (what we ought to do, or have a duty to do), to value (what is good or valuable), and to virtue (to the kind of person we ought to be).
Nature of moral ideas

Cognitivists E.g. Plato believed in moral facts Goodness, justice and beauty are things that exist. We cannot perceive them but can apprehend them by reason. Moral belief are statements of desire/feeling or prescriptions
Non-cognitivists
Moral Ideas
Where do we get our moral ideas from? God? Divine commands Nature? Universalism Society? Moral relativism
Moral psychology
Who are moral agents? Free will Guilt and Conscience Determinist? Predetermined due to circumstances
Normative ethical theories

Telelogical/Consequentialist Morality of actions is determined by their consequences Page 21
E.g. Utilitarian (greatest good for greatest number) Actions are inherently good or bad (in and of themselves) Good intention is what matters (not necessarily consequences) Eg Kant
Dentological
Utilitarianism
Utility (universal good) Universal standard for determining how we ought to behave (rights, obligations etc) Different ideas of the universal good/value Happiness/pleasure Absence of pain Satisfaction of preferences
All count equally
Types of utilitarianism
Act Utilitarianism Law Version of rule utilitarianism An act if morally right IFF it is the one that would maximise utility An act is morally right IFF it confirms with rules whose general observance would maximise utility Rule Utilitarianism
Critique of Rule utilitarianism

Sometimes the rule will not yield the best result in a particular case.
Kant
Absolute unconditional rules (non-consequentialist) Categorical imperative Universalizability principle People as ends not means Respect for autonomy
Ross
Both consequences and intentions Moral relations between persons by virtue of relationships Duties: Fidelity Reparation Gratitude Justice
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Beneficence Non-maleficence Self-improvement
Aristotle
Virtue ethics Virtue acquired through reason and practice Moderation in all things Avoid excess except where appropriate Rationality v emotion Doctrine of the mean
Feminism and Aristotle

Ethics of care Women emphasize responsibility (context) Men rights (neutral abstract notions of justice)
Relation of ethical theories to law

General rules of behaviour designed for common good Rule utilitarian Criminal law willed action Unconscionable contracts Tort law causing something with intent (wrong motive) Cf ethics of care, context, community CF duties to clients with broader notions of justice Value of autonomy
Consequentialism Individual rights-based Professional ethics
Legal theory
Relation between law and ethics (morality) Legal theory/Jurisprudence Concerned with what law is and where it comes from
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Human Nature, Human Rights and Law

The idea of human rights as objective ethical foundation for law-making and law enforcement.
Rights
Rights in the general sense can be defined as legitimate entitlements of individuals or groups to access to or effective control of particular goods or services or the free exercise of particular abilities or powers. Rights imply responsibilities or obligations: The responsibilities of the rights holder to exercise their rights in an appropriate fashion, not infringing the rights of others; The duty of others to respect and facilitate the effective realisation of the rights in question.
Acquired Rights Acquired rights receives the support of the legal system, or of the authority structure. Individuals acquire such rights as by reaching a certain age, by becoming a citizen, by entering into a contractual agreement, acquisition of property. Property rights include, right to possess (as a right to exclusive physical control of an object), a right to use (as opposed to managing and reaping income from an object), a right to manage, a right to the income, a right to the capital (a right to alienate, consume or waste an object), a right to security and a right to transmissibility (power to devise or bequeath an object). Gained through the exercise of sort of social power, authority, agreement or decision making (i.e. contracts, reaching a particular age etc) Positional Rights Individuals acquire rights by being selected for a job or an office. Because of their job they have whats called positional rights to engage in particular sorts of activities without interference. When you join the police you are given a gun and the right to carry it and use it. In a capitalist society, access to positional rights of jobs or professions is mediated through the job market, where individuals trade their time, effort, strength and skills for wages. Such income then becomes the means of access to property rights in goods and services purchased in the market. Much of the common law system is about facilitating acquisition of property rights through ensuring the effective operation of free-market relations. Much of tort law and criminal law is about protecting private property rights through preventing or compensating unauthorised interference with such rights. The state via the system of civil law provides individuals with means for enforcing their rights against others who have infringed such rights, through negligence, trespass, slander or theft, or by failing to deliver upon a legitimate contract. The system provides monetary compensation paid to victims of such transgression by the perpetrators. Rights inherent within the execution of a particular position (i.e. rights of being employed). Typically seen as functionally necessary for effective fulfilment of the requirements of the social roles in Q. Moral rights In medieval times, law defined the inherited rights and privileges of the ruling class of lords and church officials, as rights of control over the working population of peasant-serfs Later feudal monarchs typically claimed a divine right to rule with absolute authority. A crucial jurisprudential question is that of whether such legal and practical recognition and enforcement of rights is itself ultimately justified by fundamental human or ethical rights which exist in their own right; whether, in particular, core legal rights, at least, require justification in terms of objective moral rights in order to have genuine legitimacy as law over and above the legitimacy of the law making authority and the law-making process. Law Foundation Allen Hsu 2011 Page 24
At the time of the English Revolution in the mid-seventeenth century, the first of the great social revolutions of the modern age that overthrew royal absolutism and ultimately shifted political power to representative parliamentary bodies, the concept of rights was extended beyond institutional legal support for the interests of particular social groups to embrace the entire political community. The revolutionaries developed the idea of universal human rights to articulate their demands for change. Such rights were seen as possessed by all individuals simply by virtue of their common humanity, and as conferring duties of respect of such rights upon all people by virtue of the moral status of such rights.
Classical liberalism
Limited government and liberty of individuals including freedom of religion, press, assembly and free markets Individual should be free from government control, regulation or restriction.
Ideas of human rights among the classical liberal thinkers of the seventeenth and eighteenth centuries are very closely bound up with their particular ideas about the relations between human individuals on the one side and social structures and relations on the other. In the classical liberal tradition of thinking, such psychological instincts, responses and tendencies are understood as centred on rational pursuit of individual self-interest. All human beings, unrestricted by central power, are by nature selfish, lazy, greedy creatures seeking the gratification of their ultimately insatiable desires through appropriation of relevant goods and services. Reflecting the aspirations of the new capitalist middle class of merchants and manufacturers in their struggle against feudal absolutism, classical liberal theory centres on ideas of the positive potential of individual nature and the need to free such potential from unnecessary restriction and distortion by state power and established hierarchy in order to allow for individual fulfilment and social progress. All individuals should be maximally free to choose to do what they want without impinging on others freedom to do the same. We see this central focus on freeing and protecting the individual from arbitrary state power reflected in an emphasis on what are now called due process rights: to a fair trial and to freedom from arbitrary arrest, torture and cruel punishments. But we cannot understand the classical liberal ideology of rights without also recognising the centrality of free markets and capitalist pursuit of profit through such free markets in this way of thinking. Since markets require constructive effort in production of goods in demand, their orderly operation is always threatened by human self interest and by competition for scarce resources. According to classical liberal theory this threat motivated rationally self-interested humans to contract together to grant coercive power to a sovereign political authority to formulate and enforce such rights to life and property as laws, to render the lives of all more ordered and secure. Classical liberals were generally hostile to what they saw as further government interference in individual decision making and action or imposition of financial imposts on its citizenry. The individual should be free from any further government control, regulation or restriction. Classical liberals see social structures and social relations as effects, products and consequences of intentional action and interaction of human individuals For the classical liberal tradition, all human beings, unrestricted by central power, are by nature selfish, lazy, greedy creatures seeking the gratification of their own desires Classical liberals see humans as intrinsically competitive, power-seeking and domineering Classical liberal theory (CLT) centres on ideas of the positive potential of individual nature and the need to free such potential from unnecessary restriction and distortion by state power and established hierarchy in order to allow for individual fulfilment and social progress. With CLT, persons should be maximally free to chooses to do what they want without impinging on others freedom to do the same. CLT type rights include, for example: Right to a fair trial Page 25
Freedom from arbitrary arrest, torture and cruel punishment
Market relations are seen as natural and the requirements for ongoing operation of such relations are therefore expressed in terms of respect for life and poverty.
Classical liberalism and justice

People should, and generally do, reap the benefits or suffer the consequences of their own free choices of action. threat of effective punishment is necessary to deter potential criminal wrongdoers serious infringements and others basic life and property rights require equally serious response from the law. Those that cannot be effectively deterred need to be effectively restrained or incapacitated, in the public interest.
Ever since Aristotle introduced the distinction, philosophers and social theorists have divided questions of justice into those concerned with criminal punishment retributive justice, where the punishment is in some sense proportional or appropriate to the crime and those concerned with the distribution of social benefits and burdens distributive justice. Inequalities of wealth and power are seen as necessary incentives to productive effort, initiative, innovation and best use of available resources to maximise efficiency and output. At one end of the scale, substantial rewards are thought to be necessary to ensure that the most talented people use their talents to the best advantage of all, or that someone is willing to make the effort and take on the massively onerous responsibilities involved in positions of power in society. At the other end, the miseries of poverty and privation are necessary to overcome the inherent sloth, laziness and inertia of some or all human beings. Selfish individuals can be expected to enter into and maintain particular social relations only insofar as they see such relations particularly rewarding to themselves. At the same time, the effective operation of free market forces depends on recognition of the private property rights of individuals and corporations. Ways must therefore be found to ensure that such rights are respected, rather than undermined through theft, fraud, robbery, factory occupations or pickets. And here, the criminal justice system is seen as a necessary complement to the free market. The classical liberal view of both legal and economic justice centres on ideas of just deserts: people should, and generally do, reap the benefits or suffer the consequences of their own free choices of action. Inequalities of wealth and power are seen as necessary incentives to productive effort, innovations etc (page 176) Market forces ensure that persons are rewarded in direct proportion to the value of their real productive social contribution, and therefore also punished through lack of any such reward if they fail to make such valuable contribution. Classic liberals demand a formal or procedural equality in formulation and application of legal principles. All should be subject to the same laws and all should expect to be treated in similar fashion by the justice system. Need to consider CLT to Rule of Law Equality before the law; Consistency in application of law; No one is above the law
Early bills of rights

English Bill of Rights 1689 French Declaration of the Rights of Man and the Citizen 1789 liberty, fraternity and equality
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American Declaration of 1776-1789 self-evident human equality and inalienable rights to life, liberty and the pursuit of happiness The English Bill of Rights was the first document to use the language of rights and which introduced the system of free elections, was merely intended to ensure that royal absolutism was firmly dissolved in favour of the monarchs accountability to Parliament thus, the rights it gave were to Parliament, not the people. These civil and political rights have been called first generation rights, to distinguish them from second generation rights, which later came to the fore as rights of guaranteed access to the means of material need satisfaction. It remains to be seen whether first generation rights are compatible with second generation rights, as is assumed by later bills of rights, or whether unrestricted rights of property acquisition and ownership might function to preclude fair and equal satisfaction of need.
Social liberalism
Social liberalism came about as a reaction to issues and problems of the classical liberalism. Free markets without government intervention had its own problems, increasing polarisation of wealth and poverty. Government intervention was necessary, to guarantee minimum wages and unions to help protect the powerless. Australian Labour Party stems from social liberalism
It is a belief that liberalism should include social justice. It differs from classical liberalism in that it recognises a legitimate role for the state in addressing economic and social issues such as unemployment, health care and education while simultaneously expands civil rights. Under social liberalism, the good of the community is viewed as harmonious with the freedom of the individual. Social liberalism was developed as a reaction to issues and problems of classical liberalism of th th the 17 and 18 century and as a response to radical socialist and historical materialist idea in th the later 19 century. By this time, the downside of the operation of free market relations, driven by individual initiative and individual greed, were becoming increasingly apparent in terms of increasing polarisation of wealth and poverty, the distortion of democratic politics by such increasing inequality and the pollution and destruction of the natural environment. Key figure was JS Mill, who saw the need for state intervention to protect the political rights and promote the free development of individuals. He saw the radical inequalities supported by free market relations, with the excess wealth of the rich minority obstructing the liberty of the less well off. He advocated for a heavy inheritance tax and guaranteed basic income, as well as state provision of educational services for all. Later still, social liberalism ideas came to be associated with the economic ideas of JM Keynes, aiming to ensure full employment through government demand management, and political programmes of European Social Democratic and British Labour and Australian Labour parties and more recently Green parties (around the world), focussing particularly on the expansion of the welfare state, with social security provisions, comprehensive health service, and large public housing programmes seen a providing the basic material security necessary for positive freedom for all. For social liberals, human rights are seen as ethically grounded insofar as they are rights to objects of need, to the things that all humans must have in order to be able to survive and live and fulfilled life.
Human needs
In human biology a deprivation of certain things regularly results in reduction of the ability to move or to feel or to think. In extreme situations, deprivation of air for a short time, or food or water over a long time, results in the end of all movement or feeling or thought. But
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deprivation of shelter, affection or variety of activity over differing periods of time also regularly results in morbidity or disablement of the human so deprived. Significant inequality and powerlessness contribute to high levels of insecurity and stress in the lower reaches of the social hierarchy, which in turn contribute to morbidity and premature mortality. The provision of greater equality, security and empowerment and of adequate health care and education can also be seen as significant human needs. Philosopher John McMurry develops these ideas by reference to three planes of being: 1. 2. 3. Organic movement Sensation and feeling; and Conceptual and imagistic though there is no value of life that exists which is not such in virtue of bearing or contributing to one or more, at best all, of these planes of life participation and enjoyment Overall, each of the three parameters of life and value always admits of ranges of function. These ranges of function or capability, in turn, grow or diminish with the nature of [relevant] economic conditions. In a capitalist society, access to the need requirements of life which cannot be synthesised by the body itself or by independent production can be assured only through income security: through guaranteed continuity of income (or private wealth) adequate for the purchase of relevant objects of need, or of political or legal measures necessary to secure such objects in the market.
As the ground of all life value. As he says:
Against methodological individualism

In line with socialist and materialist ideas, social liberals came increasingly to reject the reductive atomism of earlier classical liberal ideology. In contrast to classical libera ideas of society as created and ongoingly maintained by human decisions and actions, in particular decisions to contract together and action of ongoing co-operation and competition, social liberals recognise that society pre-exists both the human species and individual human life, with pre-existing social structures shaping and directing human personality, perception, thought and action. Social structures and relations only continue to exist in and through the action of people. The classical liberal idea is self-serving, seeing others in essentially instrumental terms as means or obstacles to their own gratification, needs to be radically modified insofar as relations with others are seen as integral to individual identity. Integral to the identity of parent, for example, are ideas of love and protection of children. Integral to the identity of many professional practitioners are ideas and practices of commitment and service to particular group of clients. In line with their focus on the necessity of need satisfaction, and the recognition of the limitations of unregulated capitalist market relations in ensuring such need satisfaction, social liberals came to see the crucial importance of equality of access to material means of need satisfaction, rather than mere absence of legal restriction upon individuals rights to pursue the satisfaction of their needs and wants. Social liberals have therefore increasingly come to recognise a broader range of basic human rights than those identified by classical liberals calling for liberal support. These include: workers rights to be able to work to decent pay and healthy working conditions, workers right to form unions, participate in collective bargaining and engage in strikes and pickets consumers rights to be properly informed of the nature of goods or services available to them and to be protected from harm attributable to such goods and services, parents rights to paid maternity and paternity leave from work citizens rights of access to public health education and welfare services proper legal representation and freedom from racial discrimination and vilification Page 28
For these rights to be effectively realised, those benefiting disproportionately from private property rights and market forces have to accept responsibilities towards those not doing so well. Thus, social liberals recognise the necessity for progressive taxation and regulation of markets in order to provide the public funding and economic stability to allow for enforcement of universal rights to employment and social services for those in need.
Social liberal ideas of justice

recognised same procedures applied to people in very different social situations can produce unfair or unjust outcomes. Unfair to impose same harsh penalty for rich whom steal out of greed and the poor whom steal for hunger. Unfair to impose same driving ban to a courier and James Packer whom can readily get a driver to drive for him.
Whereas classical liberals tend to hold the individual wholly or largely responsible for all of the consequences of their actions, both good and bad, social liberals recognise such decisions and actions as facilitated and constrained by social situations. And where classical liberals seek to influence such action through rewarding, punishing or physically constraining the individual, social liberals recognise the need for changing social situations in order to achieve any significant change in social actions. They are hostile to what they see as the generally futile and gratuitously cruel punishments which classical liberals sought to enforce as their only, or primary, answer to criminal activities. On the one hand, such punishments are typically inflicted on the downtrodden and the weak who have already suffered as victims of an unfair social system. Indeed, if they have already broken the law it is in part a consequence of such earlier victimisation. On the other hand, there is substantial evidence of failure of deterrence through highly punitive means. And this is what we would expect if working-class crime is largely a product of social restriction of choice, rather than a free and rational choice to break the law. Social liberals recognise that the same procedures applied to people in very different social situations can produce thoroughly unjust or unfair outcomes. It is unfair, for example, to impose equally onerous punishments on the wealthy and powerful individual who steals the same amount through need. It is unfair to apply the same standard of proof beyond a reasonable doubt in the criminal prosecution of a powerful corporation whose officers can call on huge resources of legal and scientific expertise in their defence, as it is in respect of an ordinary individual lacking access to any such resources. It is far from fair and just to impose the same fine or the same driving ban for the same driving offence where, in the case of the poor worker it could mean severe hardship or loss of a job, where for the rich executives who can be driven around by someone else, means nothing at all.
The UN and the UDHR (Universal Declaration of Human Rights)

Contemporary public international law, particularly as developed in and through the United Nations Organisation, is strongly influenced by social liberal ideas. A substantial part of such international law revolves around ideas and codification of universal human rights, thought of as grounded in universal human needs, or the requirements for a healthy and fulfilled human life. First generation classical liberal rights in the Declaration include: rights to life liberty and security of person equality before the law a fair trial presumption of innocence political asylum freedom from arbitrary deprivation of property freedom of opinion expression assembly and association and freedom from arbitrary arrest Page 29
freedom of opinion, expression, assembly and association and freedom from arbitrary arrest, detention or exile. social security to work with equal pay for equal work to join trade unions to a satisfactory living standard to rest and leisure to education (free at elementary stages) to participate in the cultural life of the community
Second generation social liberal rights include:
Those hoping to see an end to large-scale violence were disappointed, with continuous and increasing low-level conflict on virtually every continent, periodically erupting into mass slaughter. UN has notoriously failed to intervene, even in the latter situations, where member states have totally failed to maintain order within their boundaries, or have themselves engaged in massive human rights abuses. Where the UN has intervened, such intervention has been too little or too late. Security Council has the power to impose binding resolutions on other member states insofar as it has the power to authorise economic sanctions and military intervention. But from the late 1940s to the late 1980s cold war rivalries among the permanent members preclude effective decision and action. Security Council is radically lacking in democratic legitimacy, dominated as it is by the 5 permanent members, the US, UK, France, Russia and China, each of which has the power to veto any proposed resolution, with the other ten temporary positions distributed in terms of regional quotas. There have been numerous proposals for democratic reforms of the Security Council, including ridding of permanent members and veto powers, increasing permanent members, and/or effectively subordinating the SC to the more democratic General Assembly (GA). But no particular proposals have found widespread acceptance. While the General Assembly us definitely more democratically organised and run than the Security Council on the principle of one nation one vote, and it would make democratic sense to give it greater powers within the UN system, Singer notes major problems: Its appearance of egalitarianism is misleading. It is an assembly of the worlds states, not the worlds people. Some of the states themselves are not democratic, but even if we overlook this, there is the problem that the government of India has the same voting power as the government of Iceland. In fact, if the 95 states with the smallest populations were to line up against the 94 states with the largest populations, it is possible that a GA resolution could be supported by a majority of states that represented a combined total of only 198.5 million people while on the other side, the outvoted 94 largest states would represent 5.7 billion. States representing less than 4% of the total UN member state population could carry the day in the General Assembly. In this case, reform proposals have included exclusion of undemocratic governments from membership and turning the General Assembly into a democratically elected World Assembly like the European Parliament, possibly including delegates allocated to its member states in proportion to their population as forum for debate and review and possibly also giving it real legislative power.
Neo Liberalism
It is in between social liberalism and classical liberalism Ownership of substantial private property carries no necessary responsibility to support public services available to others with much less. From a neo-liberals perspective, beyond a basic respect for others life and property, individuals can only expect others to act responsibly towards them if they pay for the privilege, through contractual arrangements
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Neo-liberals are generally sceptical of or hostile to the sort of human rights as founded in UDHR by social liberals.
This is a market-driven approach to economics and social policy based on neoclassical theories of economics that stresses the efficiency of private enterprise. Major reactions against social liberalism and in favour of a return to something closer to classical liberalism is called neo-liberalism, economic rationalism or the Washington consensus Neo-liberals recognise the particular significance of private property rights in major productive forces of land and technology insofar as such productive forces are the means of social wealth creation. While they might expect the police to spend some time investigating theft of consumer goods from a private house, they would expect and require the forces of law and order to come out into the street. Neo-liberals are distinguished by their firm rejection of any idea of special social responsibilities or duties on the part of those who derive special benefits by virtue of protection of such property rights, associated with or arising out of such special benefits (over and above others). For them, ownership of substantial private property carries no necessary responsibility to support public services available to others with much less. The extensive rights of free speech available to others with much less. The extensive rights of free speech available to a newspaper publisher carry no responsibilities to ensure fair and balanced treatment of the issues of the day, with a diverse range of perspectives represented. Neo-liberals recognise the foundation of liberal democracy in citizens basic political rights: to free speech and political activity, including campaigning and voting. Neo-liberals also believe that the state can legitimately deprive citizens of some or all of these rights of greater or lesser severity. If individuals freely choose to break the law, so do they freely choose such loss of rights as a consequence. Neo-liberals generally do not support any such direct state intervention to address intervention to address indirect economic discrimination or impediment to individual participation or effective exercise or enjoyment of the rights in question in the form of poverty or joblessness, or failure to acquire relevant qualifications or experience by virtue of such property or joblessness. The onus is on individuals to acquire the material resources to be able to pay for such things in a free market through their own market contributions.
Neo-liberalism and international law

Neo-liberal regimes in power in the United States since early 1980s have not been sympathetic to the social liberal principles of the UDHR and subsequent human rights treaties. Nor indeed have they been prepared to support first generation civil and political rights where there have been seen to conflict with the economic interests of US corporations and the US state. As noted by Amnesty International, the extreme neo-liberal regime of George W Bush has increasingly acted to undermine international co-operation and the rule of international law: it has pulled out of Kyoto Protocol on climate change failed to ratify the Comprehensive Test Ban despite clear promises made under the NPT (Non Proliferation Treaty) pulled out of the ABM (Anti-Ballistic Missile) Treaty refused to submit the treaty on the International Criminal Court to the Senate for its consent and refused to sign the Biological Weapons Protocol.
Most important in undermining UN democracy has been the role of the US in redirecting the operation of the IMF and the World Bank, and shaping the development of the WTO as governing body of international trade. Since the 1980s in the case of the IMF and the World Bank, and since its formation in 1995 in the case of the WTO, these organisations can be seen to have exploited developing nations poverty and debt in order to radically undermine the economic and political autonomy of the worlds poorer nations in the interests of domination by US-based multinational corporations.
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Politics
A political system is a system by which a particular group of people is governed. Government exists to uphold: A certain kind of society; Create certain set of rights and claims that people have on each other. Overall integration, organisation and regulation of social activity; Development and application of public policy and law; Adjudication; Dispute resolution; Organisation of collective responses to external attack
Politics is about:
Separation of powers Contemporary liberal representative democracy involves a division and sharing of power between different agencies and different social groups at the national level and international levels, with all citizens accorded equal rights of participation in the political process. Liberal representative democracy: 1. 2. 3. Rights of universal suffrage Participation in political organisation Lobbying and campaigning Written constitution setting out the nature and scope of the basic political institutions of the country and the rights of citizens Free speech to allow for communication of conflicting political opinions. Executive: engages in policy-making and law enforcement; Legislative: engages in law making; Judiciary: engages in interpretation of the law and adjudication of disputes.
Separation of powers:
In the Westminster System, governments are derived from the party that receives a majority in the lower house: The party with the second highest representation has special privileges as recognised opposition.
Citizens interest groups, seeking to influence particular aspects of government policy and legislation by persuasion and provision of information, are generally seen as integral to the operation of liberal democracy. The rule of law involves: Limitation of government power by law Legal protection of core rights of citizens Concept that no one is above the law.
In the UK and Australia, the executive government of cabinet and ministers belong to the legislature. The government must resign if it loses the confidence of the lower house. Page 32
In Australia, both houses of parliament can agree to dismiss judges, at federal and state level, for misbehaviour or incapacity. Judges interpret the constitution, dealing mainly with the boundaries of state and federal jurisdictions. Does the power given to the parliament to dismiss judges undermine the conception of the Separation of Powers doctrine? (Yes, you betcha!)
Rule of law
Involves limitation of government power by law. Protection of core rights of citizens as enshrined in a constitution. Protection from indefinite detention without trial and the power to challenge the executive decisions in court. Separation of powers implies a real independence of legislative, executive and judicial authority, to avoid too great concentration of power, with each branch kept in check by the others.
Voting Rights
Liberalism as a political ideology supports individual rights of ownership and inheritance of property, of choosing ones own occupation and profiting from ones own abilities through the operation of free market forces Consider John Locke: Did not think everyone was entitled to participate in elections; Those without property should not be entitled to interfere in the operations of government (that was due to existence of state was to protect private property) Denial of voting rights to working class men and women
Social democracy and after

A trend of liberal thought and action committed to active state intervention in promoting the free development of individuals increasingly challenged earlier laissez faire liberal ideas. Unregulated market forces could: Challenge basic freedoms of thought and of speech, thereby also threatening democracy, and Provided no guarantee of even the most basic education, health care, housing or work for all citizens.
Consider post-WWII boom period, which saw the acceleration of social liberal reforms, sustained by active government intervention in job creation. There was also a substantial extension of legalisation and state regulation in areas of: Consumer protection; Environmental impact; Occupational health and safety; Unfair dismissal and monopoly pricing; Indigenous voting rights and land rights; Andin many other areas.
Liberal democracy, given the idea of active state intervention, was thought to have developed into social democracy.
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Consider views of minority (right-wing) liberals who saw such developments as a distortion of true liberal ideas and values, and an increasing: Threat to the effective operation of free and efficient markets as the foundation for social wealth and individual freedom.
Until a period of major economic crisis in the 1970s, with increasing inflation and economic stagnation, social liberalism was seen to be working. From here, neo-liberalism theory exerted an increasing influence on political decision making: Deregulation of markets and destruction of the power of organised labour; Promotion of economic rationalist ideas. Significant winding back of the welfare state in favour of private provision of health, education and infrastructure, on a user-pays basis. Reduction in trade-union rights and powers, including substitution for individual contractual arrangements for collective and centralised wage fixing, and Reduction in levels of protection for workers and for the environment.
Role of neo-liberal governments:
In the neo-liberal world view, increasing privatisation and deregulation with decreasing taxation of corporate profits, of capital gains, high incomes and private wealth, are associated with both increasing individual freedom and increasing efficiency of marketbased production and distribution. Market efficiency supports political democracy. Efficiency drives growth, which creates more social wealth which provides more incentives for further growth through free individual initiative.
Neo-liberalism and democracy

Neo-liberals tend to see democracy in functional terms, as a means for preserving and promoting economic rights and economic efficiency and for ensuring that appropriately qualified experts are empowered to achieve such goals. Neo-liberals claim to see free markets as complemented by liberal democratic political forms which allow freedom of speech and of political activity, and freedom of voters to choose their political representatives and law makers. Neo-liberals generally argue for a need to restrict democratic rights in order to protect life and property threatened by global terrorism and uncontrolled migration. Neo-liberals are strongly supportive of the idea of politically independent central banks, regulating the money supply in line with the natural growth rate of the economy, rather than seeking to appease any particular social interests. Neo-liberal parties in power have frequently installed business representatives on influential advisory committees and appoint them to cabinet positions. Neo-liberals are not generally so sympathetic to trade unions or to interest groups associated with issues of environmental protection and human rights. These groups are seen to threaten, rather than enhance, economic efficiency. While neo-liberals generally defend basic democratic rights of freedom of speech, habeas corpus and jury trial for indictable offences, neo-liberals in power have argued for a need to restrict such democratic rights in order to protect life and property threatened by global terrorism and uncontrolled migration. Neo-liberals have enacted legislation to support indefinite detention of terror suspects for interrogation prior to trial and of illegal migrants prior to deportation. Neo-liberals does not favour any kind of wealth taxes (including death tax). Page 34
Democratic markets and corporations

Consumer sovereignty, as the power of consumers purchasing decisions to influence the production process, is sometimes identified by neo-liberals as popular, democratic control of production through expression of the common will. Mann et al observed the neo-liberal analysis of consumer sovereignty: The reality of inheritance, strongly supported by neo-liberals, radically undermines any such idea of market democracy (i.e. some enter the market with billions even though they contributed nothing to it), Neo-liberalism is generally hostile to such redistribution through welfare and progressive taxation as anti-ethical to fairness and efficiency, Consumer sovereignty is highly problematic in face of the power of big oligopoly and monopoly corporations to control and restrict supply of goods and manipulate demand through advertising and public relations, Neo-liberals argue that legal freedom and legal right of all persons in a free society are permitted to improve their situation; however; it is impossible for all workers to become CEOs of major multinational companies, and, power decreases as we head down the pyramid of social power.
Free world trade democracy

Mann et al ague that there are grounds for scepticism in relation to the claim that free world trade necessarily functions to promote democracy around the world: The idea seems to be that exposure to western culture and values through trade, will motivate the citizens of less-developed states to reject totalitarian rule in favour of liberal democracy (p.232)
Consider Latin America example, where, here, a reign of free trade and free investment led to increasing inequality, poverty and concentrated wealth and power, in the hands of local elites working closely with foreign investors.
Democracy and the power of money

Representative democracy, separation of powers and the rule of law at the level of the individual nation-state are very significant improvements on fascist and other totalitarian systems and on earlier feudal absolutist and fundamentalist religious views. We have to recognise that the effective operation of any political system, depends on a high degree of ideological congruence between the three branches, with the power of government constrained but not subverted by judicial review. Support for private property rights of a wealthy minority inevitably undermines basic democratic rights to freedom of speech, organisation and campaigning. The wealthy owns media channels to propagate free speech, they can censor at their discretion, taking away free speech. Mann et al outlined that democracy depends on genuinely equal access to rights by all citizens The case of minority monopoly of private wealth can be turned into a minority monopoly control of the political process through control of the media, and funding of campaigning and of government: Politically motivated financial contributions to political parties; Ownership of media by powerbrokers
Social liberals highlight the inbuilt obstacles to any real depth of meaningful participation on the part of the mass of the population even within formally democratic political institutions and processes. Page 35
The vast power of big companies and super-rich individuals to acquire media monopolies to shape public opinion, to finance multi-million dollar election campaigns of their chose parties etc. (page 235).
Lack of democratic depth

There are grounds for believing that recent attacks on democratic rights and the rule of law is the lack of institutional support for any real breadth or depth of political involvement on the part of the mass of the population that has paved the way for such developments. Lack of breadth here refers particularly to the absence of democratic control of market forces and corporate structures and activities. Lack of breadth also refers to the absence of popular participation in, and democratic control of, the activities of political parties, governments and public services. Parliamentary politics is widely thought of as corrupt and corrupting, with professional politicians seen as dishonest and untrustworthy. Elections are seen, at best, as a choice of the lesser of two evils. Since ruling parties can and do routinely break major election pledges without legal penalty, even ticks for the winning party can count for very little in practice. This means that political power is actually very unequally distributed throughout the population, with the great majority effectively powerless or politically disempowered.
Political Parties
Lack of democratic participation within the major parties means that if an ordinary person joins one of them they will have little input into the policy making of the leadership. Parties are typically characterised by ruling elites with effective control of policy and rank and file memberships denies any real involvement in policy making. The Westminster first-past-the-post system means that the first candidate to achieve enough of the vote not to be overtaken by any other wins the seat and becomes the single representative for the constituency in question. Smaller parties are unlikely to have any legislative representation under this system. Preferential voting system could be said to give the minor parties themselves and/or those whose first preference are minor parties with no hope of election, some participation in the real game, by virtue of transfer of their votes to the majors. All of the mainstream parties represent the interests of the majority or the nation as a whole. Mann et al note this is logically possible in societies where class division create diametrically opposed interests in different sections of the population.
Increasing democratisation
Political parties could easily be democratised, with leaders chosen by all of the membership. Proportional representation is the system by which political groups are represented in legislative and executive bodies in proportion to the votes cast for them by the electorate as a whole. Mann et al suggest that proportional representation goes some way to addressing the issue of big party domination. All votes end up counting towards the final result and are not wasted. Private contributions to the funds of political organisations other than flat-rate subscriptions from members would have to be outlawed. How would this increase democratic governance of political parties in power? Page 36
Ways would also need to be found to hold public officials to account once they have been appointed.
Deeper Democracy
Consider effectiveness of pyramidal democracy: various tiers or layers, operating at different social levels, democratic governance differs depending upon level, (i.e. neighborhood, city, the region, the nation and beyond)
Statistical democracy: select persons for higher co-ordinating bodies in proportion to the size of the particular social groups or interests most directly affected.
What is Marxism
Marxism is a political-economic theory that puts forward a materialist conception of history, a non-capitalist vision for capitalism and other types of society. Marxism has often been stated as been closely related to communism. It holds a critical analysis of capitalism and a theory of social change.
Three Sources of Marxism

Dialectical and historical materialism, the history of any society is the result of conflicts within society: Between social classes, Between the development of the forces of production, and The relations of institutions. works typically have no choice but to produce more value and more output than is necessary to pay the cost of their reproduction as people in society over time, works do this under conditions which they cannot control, under the direction of employers and threatened by loss of work and unemployment, thus giving the surplus-product to the owners, the bourgeoisie. workers under capitalism under alienated, as they do not control a major portion of their day and must follow orders, producing goods or services that they do not own and cannot choose to avoid producing, therefore, solution is for workers to unite in labour union and political parties, and take economic and political power away from the bourgeoisie (i.e. form of collective self-liberation).
The theory of surplus value:
The revolutionary role of the working class:
Who are the Marxists?

Marx, Engels, Plekhanov, Lenin and Leon, for example, insisted that socialism, and eventually communism, could only arise on international basis, through the revolutionary overturning of capitalism worldwide. See further pg. 256 of text
Marxist economic analysis

Marx and Engels pointed to the inevitably unsustainable polarisation generated by capitalism. Page 37
Marx argued that only living labour (working class) is capable of generating new value, over and above the cost of its own production. The cost of production of labour power, of the productive capacity of the working class, is simply the cost of subsistence and reproduction of that class, as people ready and able to work that cost including food, housing, practical education, transport costs, etc. In what ways do many economists see problems with the Marxist account of economic analysis? see pg. 258 of text. They contest Marxs conclusion that living labour is the only source of new value. They say that Marx has trouble explaining precisely how labour-time values determine the actual market prices of commodities.
Marxism and the role of law

Marxism challenges basic assumptions about law and its role in society. Western law asserts sanctity of private property, freedom of contract and the rule of law. Such legal regulation inherently promotes economic and social inequality. Western law enforces the stability of the nuclear family. Marxists call for genuine freedom of choice in undertaking and leaving marriage and gender equality. Western law punishes persons for committing crimes. Marxists regard crime mainly as a product of social inequity, and, on that basis, seek to replace punishment with social improvement, education and other remedial measures. Western jurists outline that law is fundamental organ of governing society. Marxists, however, regard humanity as capable of rising to a higher social and moral level, given the right conditions.
The Soviet experience

Consider 1917 Russian Revolution: produced ground breaking achievements in legal policy, transformation of family and sexual relations (rights to divorce, de factor marriage and abortion), abolition of private ownership of basic production and finance.
After late 1923, with the ascendancy of Stalin and the doctrine of socialism in one country, there was a strengthening of the repressive state apparatus. The classical Marxist perspective of the withering away of the state and law was ditched in favour of the entrenchment of a legal edifice, erected in the name of socialist legality.
Marxism jurisprudence
Marx, Engels, Plekhanov, Lenin and Trotsky regarded socialism consisted of human self-emancipation and would be shaped by the actions and ideas of millions of working people, tempered by the concrete historical and international circumstances that prevailed (see pg. 261 of text). Classical Marxists saw the role of law as being fundamentally bound up with and dependant on the development of humanitys economic capacities and social wellbeing. Marxist conceptions: All forms of law and the state were in the end derived from the evolution of the productive and hence cultural level of human society, and
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Law and the state would wither away in the process of arriving at a genuinely communist society.
Essential propositions
Consider Marxist view of law: Socialism means democracy and the withering away of the state, not the bureaucratic command economy, Socialism can be achieved by a popular revolution to establish a new kind of state, genuinely democratic state to create the ultimate conditions for a classless, stateless communist society, Law is not inherent or organic to society; it arises out of conflicting interests in society and primarily reflects the interests of the ruling layers. Therefore, in a classless society, the legal form of social regulation will become redundant, The relationship between law and socio-economic power is dialectical; legal definitions and measures can exert a sharp influence on economic and social developments, and Marxist reject that capitalism based on private ownership of the means of production, is somehow natural while socialism is alien to human nature. Under capitalism, law plays an ideological role in disguising social inequality.
Socialism, democracy and the state

Marx argued that the development of a socialist state will evolve on the basis of the activity of the members of society who, for the first time in history, intentionally regulate and control their own social organisation as part of their daily lives, free from the domination of either free market or a bureaucratic authority standing over them (see pg. 264 of text). In Marxs view, the precondition for such a society is the development of the social productivity of labour to such a point that the vast bulk of humanity does not have to spend the greater portions of the day merely trying to obtain the resources to live. There needs to be an intentional regulation of the economy according to a plan, decided on, checked and altered to meet changing circumstances through the involvement of workers.
The transition to communism

The dictatorship of the proletariat means the temporary and emergency political rule of the working class, as the first stage in the transition to a classless, stateless society. Only after individuals are no longer enslaved by others, labour becomes a meaningful and enjoyable pursuit rather than a burden. Slowly, then, the state and law must begin to fade away as soon as the dictatorship of the proletariat is established. Inherent in the seizure of political power and the establishment of a workers state is the creation of a unique kind of government that would immediately begin to transfer societys administration into the hands of the population at large.
Interaction between law and social structure

Marx and Engels saw the driving forces of all economic, political and social life are the contradictions in material and economic life. The development of capitalist economic relations shape the content and structure of law in many ways. The fundamental relate to the core concepts of private property and contract.
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Marx has argued that legislation can have a drastic effect on social conditions and the class struggle (see pg. 267 of text).
Law and ideology

Marx and Engels recognised that under capitalism, ideological factors could determine the form of legal development. Law was a distorted reflection of economic reality.
Law and Human Nature

Proponents of the free market and capitalist ownership of the means of production argue that socialism is unnatural and therefore doomed to failure because it violates the inherent drive in every human being towards the exclusive ownership of property. Consider Mann et al view on capitalist society, where, there is no statue that compels the worker to sell his or her labour power to the owner of capital. He or she is forced to do so by the pressure of economic necessity. Most important development of capitalism is the establishment of exclusive property rights. Locke identified that freedom with private ownership is based on the claim that each individual has the natural right to the fruits of their own labour and that private property is the means through which the right is secured.
Leon Trotskys observations

Leon Trotsky was one of the foremost leaders of the October 1917 Revolution and of the fight against Stalins bureaucratisation of Soviet society. Trotsky insisted that the Soviet revolution was far more democratic than the parliamentary apparatus defended by Kautsky. Trotsky argued the innate fraud of capitalist democracy, which leaves the economic power and control over the state apparatus in the grip of a ruling elite; in this way, it gives the working masses no other way but revolution to take charge of society. Trotsky pointed to the degeneration of the democratic conception in the hands of the capitalist class and its jurisprudential theorists. Trotsky argued that genuine socialism and communism were impossible to achieve without the free and creative involvement of all people. Trotskys emphasis was on the self-liberation of the entire population. This was the essence of communism.
Contemporary relevance
Marxism remains acutely relevant to contemporary society, particularly in view of several underlying trends: overturning of traditional civil liberties and the growth of executive power, many legal and democratic rights such as free speech, habeas corpus, presumption of innocence have been eroded, the growth of police powers and institutions of tougher approaches to punishment have seen imprisonment rates rise dramatically since the 1970s. world war and economic implications, historical backwardness of Russia, Page 40
The Stalinist degeneration needs to be understood in context:
revolution and civil war, protracted isolation of the Soviet State.
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Economic efficiency and law

All societies have some kind of economic foundation, there exists a system for production and distribution of goods required to sustain human life. In a communist or socialist society productive resources are owned by the State. For neoclassical economists, the economy is a set of interconnected and self-regulating markets in which buyers and sellers freely interact without the need for substantial government regulation. Without intervention, the market ensures mutually advantageous exchanges.
Neoclassical Economics
Stillwell explains, the economy is seen as a set of interconnected and self regulating markets in which buyers and sellers freely interact without the need for substantial government regulation. Neoclassic theory also says that in a free market, competition among producers for sales pushes prices and therefore also profits down to the lowest level compatible with continued business operation. The only way for a particular business to increase profits is to come up with some innovation that reduces production costs. Market prices above equilibrium prices create excess supply (unsold goods) which motivates sellers to cut their prices, bringing the market price back to equilibrium and eliminating the excess supply. Market prices below equilibrium create excess demand which motivates buyers to offer higher prices, again bringing the market back to equilibrium.
Efficiency
A Pareto optimal outcome is one where it is impossible to make anyone better off without making someone else worse off. The idea is simply that it would be inefficient or wasteful not to implement a change that made someone better off and nobody worse off. Free and rational people will not engage in market exchange unless both benefit from such arrangements.
Neo-liberalism and neoclassical theory

Neoclassical economic theory: Determination of prices, outputs, and income distributions in markets through supply and demand.
Neo-liberals draw upon neoclassical economic ideas to justify their rejection of any state responsibility for actively ensuring provision of resources to allow the fulfilment of human rights to health, education, employment, income, housing and other necessities. They favour leaving it to individuals to make their own contractual arrangements in these areas, such as buying own health insurance etc. Neo-liberals favour competition at all levels of society, on grounds of threat of failure and promise of rewards of success brings out the best in all participants. In free markets, those who contribute to production and supply of what people want most are rewarded with higher wages and profits. Neo-liberals rely on neoclassical theory to support their opposition to trade unions (regulation of wages), state supervision (free enterprise). state should ensure individuals have access to market place and no discrimination. Neo-liberals: favour an increasing shift towards privatisation,
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user-pays in health, education, legal representation, favour competition at all levels (bring out the best in participants), support private employer-employee contracts and negotiations.
Macroeconomics From a neo-liberal perspective macroeconomic policy essentially concerns the role of an independent central bank in manipulating interest rates in such a way as to facilitate the natural progress of the national economy along a path of steady and continuous growth. considers the national and international economy at the aggregate level, reference to aggregate demand, production, employment and inflation. Neo-liberals believe in a natural rate of unemployment. Neo-liberals emphasise higher wages and salaries for those with special qualifications, as a necessary incentive for acquisition of such qualifications and for retaining skilled labour within a particular nation-state.
Market failure and externalities Market failure: free markets inability to guarantee provisions of public goods. Public goods includes basic infrastructure such as roads, power, water. Externalities: are the positive and negative consequences of market transactions of third parties. Car production in a big city produces acid rain that destroys surrounding forests. Use of cars contribute to pollution and respiratory diseases, but the cost of all the side effects are not considered in decision making process because car producers and users dont pay for these costs. Neo-liberals: Favours inefficiency in terms of market failure and externalities. Favours user-pays principle Defends free market
Corporations
Neo-classical theory: perfect competition, where there are large number of medium-sized business enterprises, with none big enough to gain any special advantages.
Businesses have no major power to determine the prices of goods (they are price takers rather than price makers). Neo-liberals support corporate structures: large-scale corporate entities are appropriate organisations of control of major productive forces, efficient structures of organisation by virtue of their effective, large-scale mobilization and integration of the work of professional experts, in pursuit of profit maximisation. professional and hierarchical structure of companies allows general policy to be translated into specific directives by experts. Equality of opportunity, promotion through the hierarchy based on merit, and reward in proportion to social contribution, ensure efficiency and fairness.
Regulating corporations
Neo-liberal ideology is uncertain in regards to regulating corporations Page 43
There is requirement for professional managerial skill as in the private sector Idea of bureaucracy degenerate into inefficiency and corruption without discipline of competitive market forces.
Australian Securities and Investments Commission (ASIC) investigates and prosecutes suspected contraventions of the laws governing operation of corporations, companies or financial services fraud, it also monitors market integrity. Work of ASIC is complemented by that of APRA, Australian Prudential Regulation Authority. APRA ensures a minimal level of financial soundness on financial entities, oversees banks, building societies, credit unions, insurance companies and superannuation providers. Australian Competition and Consumer Commission (ACCC) is supposed to play a central role in enforcing anti-monopoly and consumer protection legislation.
51AC of Trade Practices Act deals with unconscionable conduct, including bullying
of smaller firms by larger ones. Generally neo-liberals support laws which forbid insiders of corporation A buying stock in corporation B where A intends to tender offer for B, or buying land that corporation A plans to buy later. Neo-liberals have also used neoclassic economic ideas to argue for decriminalisation of insider trading. Donald Whiteman: This means a lower purchase price (allowing insider trading). Managers can make an announcement or put their money where their mouth is. With continuous insider trading, the stock price is more informative. In turn, the more informative the stock, the less the fluctuation in the price of the stock.
Insider Trading
The international level

Neo-liberals favours removal of barriers to free trade and investment in the form of tariffs, quotas and capital control. Neo-liberals generally favour floating exchange rates and free international currency markets as a means to balancing international trade. Countries having payments in deficit will find the value of their currency falling in international currency market, this makes their exports cheaper while increasing the cost of imports and so does it reduce the cost of others investing in their economies, allowing their economy to grow and the deficit to be reduced. Neo-liberal policy favours removal of barriers to free trade and investment in the form of tariffs, quotas and capital controls. Neo-liberals see investment in a free market flowing to where it can be used most efficiently, so that such free flow of investment increased global efficiency.
International governance
The International Monetary Fund: stabilise the international monetary system through administering a system of monetary regulation, built around fixed exchange rates (historical role), provides loans to overcome deficits and recurrence in the future. improve export performance to avoid
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World Bank offered bank bonds on international capital markets to make more funds available for loans, with personnel rewarded in proportion to quantity of loans to developing nations they could establish. World Trade Organisation oversee the development and implementation of a number of different agreements. International Labour Organisation (ILO) created as the first specialised UN agency in 1946, has presided over a number of global agreements on labour standards and workers rights, forbids child and prison labour, requires decent wages and conditions.
Problems of the market

Inefficient market
For capitalism to continue to exist there must be systematic and ongoing exchange between different sectors of production. Economic efficiency: Avoidance of wastage of resources, Maximum use of human time and effort.
Wastage includes depletion and exhaustion of non-renewable resources. Neoclassical economic theory (harmonious equilibrium of supply and demand) Free market system: embody negative feedback mechanisms that automatically reproduce such an equilibrium following the (temporary) disruption of changing conditions of supply and demand, includes the introduction of new technology, changing patterns of consumption and changing numbers of people seeking work.
The business cycle

As business acquire new and more productive technology, the producer acquires more workers and raw materials to satisfy demand, more employment means more demand for consumer goods, more employment in the consumer-goods sector and so on. (positive multiplier) When all businesses are equipped with new technology, demand on labour is reduced hence are laid off, then demand on consumer goods reduces and so on. (negative multiplier). Competition for resources, including labour and raw materials, forces up their prices, eating into profits. As businesses become equipped with new technology, demand for such producer goods falls sharply. Workers are laid off in the sector producing such goods and so in a negative multiplier of economic contraction.
Limits to growth
Demands for goods have inbuilt limit, there are only certain cars, washing machines, televisions that are required. Once that limit is reached, an equilibrium exists. A steady state is reached.
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Growth requires increased inputs to the production process and not all such costs can be continuously kept in check by productivity gains. At some point increased pressure on non-renewable natural resources registers in massive cost increases. In a normal business cycle downturn, lots of smaller, weaker businesses collapse. However, the more powerful can survive, on the basis of renewed subservience of the workforce, forced into longer hours, worse conditions and lower wages.
Monopoly and Obligopoly

If large businesses collude with pricing and rather than compete but to divide the market amongst themselves then a monopoly is created which maximises profit as consumers have no other option or choice. Bigger profits for the monopoly sector mean smaller profits for the non-monopoly sectors that have to pay monopoly prices for their inputs. Obligopoly is a market where it is dominated by a small number of sellers. As big corporations utilise their surplus profits to diversify into other industries and other territories, their own planning increasingly undermines free-market relations. Monopolies and oligopolies use their power over economic resources to: suppress socially beneficial innovation, to control consumption through extensive advertising and marketing, to limit the freedom of entry of new firms, influence government policy to serve their interests at the expense of other community concerns.
Keynes Analysis
Neoclassical theory assumed that the costs incurred in the production of goods provide the funds for purchase of such goods, and supply creates its own demand. For the cycle of production and consumption to continue, people must spend, in the aggregate, all of their income. Keynes: rejected the idea that supply automatically creates its own demand, argued that demand creates supply in the sense that supply will follow aggregate demand if it can.
If goods remain unsold (production above demand), producers will cut back supply to follow demand downwards. Producers will increase supply to follow demand upwards. Keynes: rejected the idea that if a capitalist economy started from a situation of full employment then the rate of interest would automatically equate saving and investment to keep aggregate demand equal to aggregate supply, argued that the level of aggregate income was more important in determining the amount of saving than the rate of interest. highlighted the possibility that income could be so unevenly distributed, with the wealthy saving so much, and the full employment level of output and income so high, that saving and investment could not be equated no matter how low the interest rate sank.
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high unemployment could be countered by savings and spending on social projects.
the government borrowing excess
Military Keyeesianism
Keynesians argued that governments could pay back the money it borrowed in the slump through increased taxation in the boom. How can a war pull a nation-state out of an economic depression? An ideology of militarism with ongoing external threat, generally keeps workers at home in docile support of big business.
The end of the post-war boom

Post-war reconstruction of the developed world was completed, with infrastructure renewed, and markets for a range of new consumer durables were saturated. The new war-time productive and distributive technologies had permeated the system with nothing radically new to replace them. Full employment and welfare protection in the boom had strengthened the organisations of the working class and stimulated workers expectations of further political economic gains. The observed coexistence of stagnation and unemployment with high levels of inflation refuted Keynes claim of an inverse relationship between the two. Milton Freedom and others argued that Keynes ideas motivated governments to pump money into the economy in excess of its natural growth capacity, thus producing inflation. Keynes ideas were declared to be well and truly dead, with inflation (rather than unemployment) identified as the major enemy of civilisation.
Deepening debt crisis

Mann et al suggests that neo-liberal policies increase inequality, with stagnant wages and limited productive innovation, can maintain sales and profits, growth and jobs only by provision of easy credit, leading to increasing levels of debt. See page 321
Inequality and efficiency

Capitalist market relations, and capitalist corporations, left to themselves, tend to produce dangerous, shoddy and unnecessary output, including wasteful luxuries, weaponry and massive pollution. How does wealth sit within the context of a capitalist market society?
Inefficient share markets

Efficient share markets are supposed to respond to the real profit potential of productive enterprises. Falls in share values below the companys asset values provide a strong motivation for asset stripping takeover, allowing such resources to be put to better use elsewhere.
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Distributive Justice
Distributive justice concern the distribution of the benefits and burdens of social life across individuals and groups Retributive justice deal with the nature and justification of punishment Changes in dominant political ideology inevitably impact legislation, statutory interpretation and judicial decision-making
Neo-liberalism and inequality

Social liberal ideology: identifies major inequality as a fundamental social problem which needs to be addressed by appropriate social policy intervention, reduction of inequality occurs through social policies of redistribution and welfare, full employment and cheap housing. prioritisation of individuals freedom of choice, where such freedom is seen as maximised through the operation of free markets and business corporations, with a minimum of state intervention and regulation, significant inequality has come to be seen as an integral component of a just, efficient and prosperous society, greater skilled, trained individuals should reap more rewards for their sacrifice.
Neo-liberalism (economic rationalism):
Free Markets
Neoclassical welfare economics asserts competitive market conditions, utility-maximising consumers and profitmaximising entrepreneurs act and interact to maximise social welfare. free market ensures the achievement of the maximum possible level of welfare.
Non-liberal approach to human rights

Support core civil and political rights to life and property, political participation and fair treatment in law. Hostile to government protection of broad human rights set out in the Universal Declaration of Human Rights (UDHR). Reject government role to ensure economic, social and cultural human rights in society. Government-financed provision of welfare services encourages sloth and wastefulness on the part of the recipients and can only be paid for by taxing effective wealth creation by others. This is seen as fundamentally unfair and unjust and as undermining property rights. Neo-liberals dont support social and cultural rights because: Talented people deterred from acquiring socially necessary skills Entrepreneurs deterred from developing new technology and investment Workers deterred from hard work and thrift, there will be ready access to free services.
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Corporations
Neo-liberals see: business corporations as appropriate organisation of control of major productive forces, corporate entities as efficient structures of organisation by virtue of their effective mobilisation and integration of the work of professional experts under an authority.
Issues in economic theory

Pareto analysis: uncritically accepts any initial pattern of wealth distribution, supports changes which harm no-one and make some people better off A social system that fails to satisfy the basic needs of many while heaping up increasingly radical redistribution for objective utility maximisation is unfair, unethical, and certainly not morally acceptable. Neoclassical theory neglects the true importance of negative externalities, or adverse consequences for third parties arising out of market exchanges.
Conflict of rights
Capitalist system promotes conflict of rights: Between ability of business to negotiate a work contract and individual workers right to job security, decent pay and conditions, Limited availability of jobs vs. workers inability to live decently without proper employment Testamentary freedom vs. curb of testator Unrestricted inheritance also undermines the neo-liberal principle of reward for the value of social contribution.
Physical capital
Unrestricted inheritance of money or physical capital makes it possible for individuals to live a life of privilege without any real social contribution whatsoever, merely consuming income from such capital: Share ownership; Passive income at expense of others; Inheritance
Risks
Some shareholders take a risk by holding on to the shares of particular corporations for prolonged periods. Individuals with limited resources who take risks are typically subject to: monopoly prices of the big corporations, political clout, large-scale advertising, Page 49
cartel activity, limited access to effective legal protection through access to lawyers, barristers etc, in some instances, limited educational background and healthcare.
Executive salaries
Consider comments of Krugman: A system that lavishly rewards executives for success tempts those executives, who control much of the information available to outsiders, to fabricate the appearance of success. aggressive accounting, fictitious transactions that inflate sales, whatever it takes.
Stress
Corporate executives position of power and privilege would seem to enable them to command the actions of others with every possible kind of special skill or ability that might be needed. Stress and responsibility appears more down the corporate hierarchy, rather than focusing on executives at the top.
Legal issues
Corporations lack human minds and human bodies, yet they are given a separate legal status at law.
Salomon v Salomon & Co Ltd [1897] AC 22:

the company is a legal entity separate from its participants, the benefits of incorporation have been extended to small private companies.
Problems with bringing actions against corporate entities: complexity of investigating; limitations of ability to prosecute corporate crimes; lack of effective criminal sanctions against corporate bodies; problem with separate legal entity status of company; transnational company implications.
Epidemiology
Decreasing stress up the social power hierarchy is supported by epidemiological evidence. Text outlines that men at the bottom of the hierarchy have, at ages 40 to 64, four times the risk of death than administrators at the top of the hierarchy (pg. 354).
Social issues
High levels of inequality promotes bad health and well being Implications of absolute poverty: Page 50
Leads to millions of deaths; Promotion of health problems; Anarchy and crime
Ethical issues
Market fails to give value to various forms of valuable social contribution: Housework; Provision of necessary social infrastructures; Mutual assistance in subsistence farming; Sustainable energy
The common law criminal justice system does not generally punish actions over which the actors concerned have no control. Why then should the economy punish individuals for things over which they have no control, by paying lower wages to those who, by chance, lack inherited physical and mental advantages? Morally unacceptable and unjust to deny any human beings satisfaction of basic needs.
Australian developments
Evidence suggests a long-term redistribution of income away from labour and towards capital in Australia since the mid 1970s. The dividend imputation credit system has increased the proportion of income going to the wealthy minority of major shareholders. Wages have become uneven across occupations, benefiting those at the top. The Howard government's Work Choices legislation of 2005 radically reduced the range of safeguards and benefits provided by previous awards (undermining collective power of organised labour). The neo-liberal Howard government also significantly reduced welfare payments to some of the most disadvantaged. There were substantially higher tax cuts to those on higher incomes.
Corruption of the political process

Private wealth including corporate wealth can be used to support particular political parties. Outright bribery has been largely replaced by political campaign contributions.
Justice and equality

United Nations agencies have outlined that inequalities in nation-states have increased during the period of neo-liberal dominance. International Labour Organisation: Half the world or 3 billion people, live in poverty, and the income between the worlds richest and poorest 20% has doubled over the past 40 years.
While wages have stagnated, the costs of effective legal representation has massively increased. Civil litigation is now impossible for a great number of the population.
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Corporate criminals are subject to light penalties for major business crimes, whereas poor and mentally ill people are given harsh sentences in the nature of extensive periods of time in prison.
Economic reforms
Detailed proposals for possible ethical reforms, on a social liberal foundation, would address all of the crucial points raised throughout. There needs to be constructive collaboration and mutual respect. There needs to be effective human rights protection for all (those set out in the UDHR). The disadvantaged need more provision to live in dignity and good health, which can be addressed by transferring from the wealthy and the privileged. Need to emphasise values of solidarity, with equal reward for all socially responsible contributions. There needs to be honest and transparent political intervention in pursuit of stability, equality and sustainability. Effective outlawing of private provision of education and health care. Guaranteed minimum income for all individuals. Effective state control of land and of the monopoly sector of production. Shareholders limited liability must be abolished. Profits of wealthy companies should be distributed in large part to society. Monopoly power must be balanced by central control of pricing and of the quality of goods, along with public access to all relevant financial records. Pubic control of the creation of money and credit (not private). Prohibition on political donations. Breaking up of media monopolies.
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Terrorism & War

Number of governments have used the threat of terrorism as a pretext to erode democratic rights: free speech, freedom of political association, prevention from arbitrary detention, and the right to seek asylum.
Striking a balance?
20 April 2004 Attorney-General Philip Ruddock said:
The war on terror is like no other war in living memory. This is a war which may have no obvious conclusion, no armistice and no treaty. Victory in this war will not necessarily be measured by territory gained or regimes toppled. In this war victories will be measured by disasters averted and democracy strengthened. This wars victories will be measured by citizens feeling safe in their homes. This war will be measured in the steadfastness and resolve of Australians to be cognisant, but not to fear, a potential terrorist threat Out constitution, one of the worlds oldest and most stable, provides us with a mechanism to protect our country and at the same time protect civil liberties through human security laws. In enacting such laws we are not only preserving traditional notions of civil liberties and the rule of law, but we are recognising that these operate in a different paradigm. If we are to preserve human rights then we must preserve the most fundamental right of all the right to human security.
New terrorism laws of preventive detention or detention without trial would be similar to Kable v Director of Public Prosecutions (NSW) (1996), where Kable was deemed to be safer locked up. Preventive detention are for certain offences such as sexual offenders, however, that represents a significant departure from traditional judicial functions and processes. Fardon v Attorney General (QLD) [2004]. That places the question of whether sentencing was adequate, being punished for the same crime twice, beyond a reasonable doubt.
80 The Constitution
80 Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. Official justifications for the new terrorism measures: disasters averted and democracy strengthened, citizens ability to feel safe in their homes, resolve fear of terrorist attack, preserve right to human security.
A key issue here is that a balance must be struck between national security and civil liberties. First, fundamental democratic rights should be regarded as absolute (embody centuries of deep-going political struggle).Habeas Corpus, presumption of innocence, proof beyond reasonable doubt, freedom of associated speech. Page 53
Second, the war on terror has been declared for definite political purposes, both foreign and domestic, rather than to protect the security of ordinary people:
The military call-out legislation
Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 (Cth):

expanded the military call-out powers of the federal government. permit air force, navy and army to be mobilised more broadly, including any alleged act or danger of terrorism, authorise ADF operations against threats to physical property (critical infrastructure). procedures for calling out the ADF have been expedited (approval of two authorized ministers or prime minister), authorised ministers do not need to notify both houses of parliament within 24 hours of the declaration, citizens must answer Qs or hand material over to members of the ADF, ADF members are exempt from criminal liability, except if order obeyed was manifestly unlawful.
119 the Constitution

119 Protection of States from invasion and violence The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. 2006 amendments to the call-out legislation was to give ADF members explicit powers and legal immunities. Once deployed, the military will be legally authorised to shoot down aircraft, sink ships, use deadly force, demand answers to questions and require the production of documents. Potentially lethal force can be used where it is considered necessary to protect any infrastructure that the government designates as critical
Thomas v Mowbray [2007] HCA 33

legitimisation of the anti-terrorism legislation, extension of the Commonwealth defence power under war and external threats,
51(vi) of Constitution beyond
federal government given enormous scope to use power for military and naval defence for domestic purposes (majority), defence power apply whenever Commonwealth or its people at risk of danger by force (per Callinan J), the defence of the realm against threats posed internally as well as by invasion from abroad by force of arms (per Gummow and Crennan JJ), approval of R v Lord George Gordon (1781) 2 Dougl 590 (an attempt, by intimidation and violence, to force the repeal of a law, was levying war against the King, and was high treason), Ordinarily courts require prosecution to prove beyond a reasonable doubt and in cases involving deprivation of liberty it has been accepted until now, that governments must prove their allegations. Judges broadened the concepts of constitutional facts and judicial notice to accept all the assertions made by the federal and state governments and their security and spy agencies, such as ASIO. majority view is evidence of surrender of more governmental powers to state and federal governments (per Kirby J). Page 54
Kirby J in dissent on potential expansion of military power: Clearly, the defence power expressed in the Australian Constitution is to be read, limited by the conventionally narrow functions ascribed to defence forces in most polities that trace their constitutional tradition to that of Britain. The constitutional culture of such countries has long been properly suspicious of any notion that defence forces are available to be deployed at the governments will in civilian tasks and to safeguard the nation from itself. Not since Cromwell has our constitutional tradition seen the military taking a leading part in civilian affairs, the Australian Constitution keeps it that way. Although the law challenged in these proceedings does not contemplate the domestic deployment of the military, the interpretation of the ambit of the defence power adopted in this case must be consistent with the foregoing principle. As drafted, Div 104 [Criminal Code (Cth) ] proceeds outside the proper concerns of 51(vi) and into areas of ordinary civil government. The plaintiff was correct to say that, if the Constitution were intended to empower the Commonwealth to make laws for the general safety and protection of the Australia public, irrespective of the source of danger and its targets, it could readily have said so. These being within the essential police powers of the States, the rubric of naval and military defences is a singularity inapt expression to use to attribute such powers to the Commonwealth.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1:

Court rejected the attempts of the Menzies government to ban the communist party during the Korean War. Court had said the defence power cannot be used for domestic political purposes Dixon J: History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.#
Military call-out legislation has significantly enhanced the federal governments unilateral power to mobilise troops domestically and interrogate citizens and use lethal force. Domestic use of the armed forces has become widely regarded as a conduct to be expected of a military or autocratic regime, not a democratic government (pg. 420).
The anti-terrorism legislation

Anti-Terrorism Acts (Nos 1 and 2) 2005 (Cth): Defines terrorism in vague terms; Permits the banning of political groups; Allows for detention without trial; Shrouds the operations of the intelligence and police agencies in secrecy and provides for semi-trials
Most of the Anti-terrorism legislation are mirrored in matching state and territory legislation. Labour state governments agreed to refer their constitutional powers over terrorism to the federal government:
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decision has the potential to give the Commonwealth substantially unfettered law-making and police enforcement power over politically-related crimes for the first time since Federation in 1901.
None of the ant-terrorism measures and military call-out laws were necessary to protect ordinary people against terrorism: already specialist counter-terrorism units around Australia since 1970s, sufficient legislation and common law principles to deal with terrorist conduct. Expanded wording of many terrorism offences from the terrorist act to a terrorist act. people can now be convicted of planning or preparing for terrorism without the police producing any evidence of a specific time, date, location or method of the supposed attack (see pg. 424 of text). grants powers to intern suspects without any charge of trial (preventative detention or control orders, expansion of the crime of sedition.
Anti-Terrorism (No 1) 2005 Act (Cth):
Anti-Terrorism (No 2) 2005 Act (Cth):
Effect of anti-terrorism laws expanded the definition of terrorist act by
Criminal Code Act 1995 (Cth):
100.1 of the
terrorism now extends to acts or threats that advance a political, religious or ideological cause for the purpose of coercing or influencing by intimidation any government or section of the public, advocacy, protest, dissent or industrial action is exempt but not if it involves harm to a person or safety to serious interference with telecommunications etc (see pg. 426). grant unilateral powers to the federal and state police to intern suspects without any charge or trial whatsoever, persons can be seized for up to 48 hours by federal police or 14 days by state police, suspects may be held incommunicado any conversations with a lawyer can be monitored, family members, lawyers and the media who reveal the person detained can be jailed for five years. house arrest, fitting of personal tracking devices and bans on employment and all forms of communication (control orders), granting of control orders lowers burden of proof to balance of probabilities, legislation clears the way for practices commonly identified with totalitarian regimes, law of sedition now includes urging disaffection against the government, promoting feelings of ill-will or hostility between different groups.
Code.
Anti-terrorism legislation has power to outlaw organisations: s 102.1 of the Criminal
Legislation retains a backdoor method for banning organisations by freezing their funds, even if they have not been formally declared terrorist. Detention without charge: preventative detention (ASIO)
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control orders, detention for investigation/interrogation.
Any detainee who refuses to answer ASIOs questions would be liable to five years imprisonment. The laws abrogate the effect of legal professional privilege in communications between the lawyer and the client. At State Library of Victoria in 2005, Malcolm Fraser said: These are powers whose breadth and arbitrary nature, with lack of judicial oversight, should not exist in any democratic country. If one says, but they will not be abused, I do not agree. If arbitrary power exists, it will be abused.
Government could resort to using these powers as a wild card, to detain someone using the new anti-terrorist laws. Mohammed Haneef was such a case where he took the case to court and won.
ASIO operations cloaked in secrecy

Anti-terrorism laws since 2003 now gag all public protest against, or reporting of, the use of the new ASIO powers. Criminal liability may occur if one publicly mentions any operation involving ASIOs powers. Level of secrecy and lack of public scrutiny has potential for human rights violations. Mohammed Haneef Case: Mr.Haneef was detained and eventually charged with intentionally providing support to a terrorist organisation, Immigration Minister revoked Mr. Haneefs visa after he was granted bail on character grounds, Mr. Haneef challenged the legality of the cancellation of his visa by the Minister, Federal Court at first instance agreed with Mr. Haneefs argument (Spender J), The Full Federal Court agreed with Mr. Haneef and outlined that the word association needed to be construed so as not to encroach upon common law rights and freedoms.
Just Wars and Criminal Laws

Post-Cold war period has been characterised by continuous warfare around the world: Attacks on Afghanistan and Serbia; First gulf war attack on Iraq and Iran; Two subsequent Gulf War attacks on Iraq; 2006 Israeli attack on Lebanon; Modern continued war on terrorism
Morality
What state of affairs can ever provide moral legitimation for killing in war:
rightful intention ; justice of the case to be the real objective of the war, rather than a
consideration satisfied incidentally,
Proportionality; military action is justified so long as its harmful consequences do not

outweigh the specific good of the war,
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last resort; all other, less harmful avenues have been found wanting in achieving the good end in question, just case; defence against aggression.
Self-defence and criminal law

self defence: exists only in situations of forced choice between lives, where the attacker is responsible for forcing the choice, and due to the immediacy of the threat, there really is no other way for the person attacked to survive without killing their attacker (pg. 468 of text). extends to third parties, intervening to save the lives of others under attack.
Self-defence and the defence of others is central among the true or complete defences for such an otherwise criminal act: Defences of life, rather than against property There can be no justification for killing in defence of property.
From individuals to social structures

A military threat to the life or liberty of the community justify collective military defence involving the death of members of the invading army (Waltzers analysis) Justification of killing in defence of a political community per se, with particular set of social institutions makes no sense at all (Norman). It is the right to self-determination and existence of institutions that derive from and continue to sustain such a right, that deserves to be defended (Walter). Humanitarian intervention is justified where it is a response to reasonable expectations of success to acts that shock the moral conscience of mankind (Walter). Conscience has, at various times and places, been shocked by such things as interracial sex, atheism and mixed bathing (Singer).
From crime to warfare

Both soldiers and citizens in war are subjected to systematic mental manipulation by political authorities aimed at convincing them of the imminent threat to themselves and others: creates problems for the idea of reasonable grounds for belief among such soldiers and civilians.
Foundations of International criminal law

Christian Church during Roman Empire: Force for warfare could be used provided it complied with the divine will Legal requirement for serious attempts at a peaceful resolution before use of force. All member states are to refrain from the threat or use of force against the territorial integrity or political independence of any state. The UN shall ensure that states which are not members of the UN act in accordance with the maintenance of international peace and security. Page 58 Later, with wars between Christian states:
United Nations Charter (UNC), Art 2(4):
UNC, Art 2(6):
In 1970 Declaration on Principles of International Law: Wats of aggression and acts of reprisal constitute a crime against peace under international law; States must not use force to deprive peoples of the right of self-determination. Nothing shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN. There has to exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. The action taken must not be unreasonable or excessive.
UNC, Art 51:
Caroline Case of 1837:
Protection of attack threatening immediate loss of human life is seen as the only valid defence for intentional killing of other human beings. Consider actions of the Bush regime in the United States: Is legally permissible to use force against another state even when a possible future attack on the US is not imminent, and could be avoided through use of non-military options, Use of force allowed against regimes said to be harbouring terrorists.
Concepts of necessity and pportionality are at the heart of self-defence in IL (Shaw) Nicaragua case [1986] ICJ Reports 14: Only measures of self defence proportional to the armed attack and necessary to respond to it are valid acts of use of force. Outlaws direct attacks against non-military targets and prohibiting the use of weapons calculated to cause unnecessary suffering.
1907 Hague Regulations, Arts 25-23:
Measures have to be taken to limit the harm that effects to attacin military goals will cause to civilian populations Article 8 of the Statute of the International Criminal Court of 2002 defines war crimes: Wilful killing, torture, wilfully causing great suffering or serious injury to body or health, or extensive destruction of property, forcing prisoners to serve in the armed forces of the other side, depriving prisoners or civilians of a fair trial, unlawful deportation and taking hostages. Prohibits attack when collateral harm is excessive relative to the objective.
Art 8(2)(b)(iv) of Rome Statute:
Humanitarian intervention
Art 2(7) of the UNC: Precludes UN intervention in matters which are essentially within the domestic jurisdiction of any state.
UN lacks the institutional, financial and technical support needed to properly address international law matters: Lack of international armed forces/police, Limitations of enforcing international law,
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Violence and law enforcement

A significant amount of crime is a product of relative inequality if income and power within particular societies. How does capitalism as an ideology undermine progression and effectiveness of international law? Prejudice in policing against ethnic minorities, indigenous people and migrants. The law is seen to favour those who have economic and social resources to both define the nature of social harm, and to defend themselves if prosecuted for criminal activity.
Problems at the international level

There are good reasons to see radical and increasing inequality within and between nations as a significant social cause of war crimes, genocide, crimes against humanity and other major human rights abuses. Significance of USA rejection of many international law principles and policies. Limitation of United Nations Organisation.
Proposals for reform

Radical imbalances of economic and military power between richer and poorer nations have undermined any such international democracy from the start. Security Council: Undemocratic body that can pass binding resolutions and enforce sanctions against any member states with a veto power Undermined by lack of jurisdiction over cases supposedly adequately processed in national courts Expanding membership; Reducing the veto power of richer nations; Giving the GA greater power of SC decisions; ICJ power to review SC decisions. Power to make laws at international level; Apportion budgets; Act as a fully empowered world parliament
International Criminal Court:
Reform of Security Council:
Democratically elected World Assembly:
World army, under direct control of United Nations officials.
Page 60
Refugees
Relevance of refugees in the 21 century Global refugee system in grave crisis: Dramatic increase in people fleeing their country of nationality in latter parts of th 20 century.
st
Western governments have increasingly shut their doors to purported refugees Decreasing funds to UN High Commissioner for Refugees (UNHCR)
The Refugee Convention

What is a refugee? (Article 1) Any person who has a well-founded fear, of being persecuted For reasons of race, religion, nationality, membership of a particular social group or political opinion. Outside country of nationality or place of residence who has no nationality, and unable or owing to fear, unwilling to avail themselves from protection of that country. Art 1 of the UN Convention on the Status of Refugees 1951
Calado v MIMA [1997] 1490 FCA (per Tamberlin J):

Race connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic groups, Characteristics of members of the group are those with which a person is born and which they cannot change.
UNHCR Handbook: Nationality is not limited to citizenship of a nation-state, Refers also to membership of an ethnic or linguistic group, Description of ethnic and cultural groups with a common or shared identity May be national majority or minority
Wang v MIMA [2000] FCA 1599 (per Merkel):

Religion is a manisfestation or practice of personal faith or doctrine, and Manisfestation or practice of that faith of doctrine in a like-minded community
Church of New Faith v The Commissioner of Pay Roll Tax (Victoria) [1983] HCA 40:
Religion is defined by its form, not substance, Nature of the belief is main focus of inquiry
Saliba v MIMA (1998) 89 FCR 38 at 49:

Political opinion means any opinion or any matter in which the machinery of State, government and policy may be engaged, Page 61
Opinions held by applicant are contrary to the interests of the State, and authorities of the State they are fleeing from
Applicant A v MIEA [1997] HCA 4:

A particular social group must be a collection of persons who share a certain characteristic that unites them to be set apart from society at large.
Art 31(1) of Refugee Convention:

Non-imposition of penalties for refugees upon illegally entering contracting state.

Contracting state only restrict refugees movements until they are processed.

Refugee not to be expelled from state of refuge, with exception of national security or public order

Expulsion of refugee only permitted in accordance with due process of law, Right to make submissions in their defence

Refugee should be given reasonable period to seek admission to another country
Art 33 of Refugee Convention:

Prohibition of returning refugee to place where their life would be threatened
How the refugee numbers have grown

1951: 1.5 million refugee worldwide 2000: 22.3 million people of concern 2006: 32.9 million people Rise in refugees over the past two decades: Related to economic and political processes Increase in wars around the globe
Moves to restrict the right to asylum

In Australia, temporary protection visas were introduced in 1999: Refugees granted only short-term residence, Lost the right to sponsor their families to join them No longer eligible for a range of social security benefits Page 62
To take the case of Australia, out of the 7,500 places for offshore applicants in 2000, 45% were given to Europeans, leaving 2206 places for the entire Middle Ease and 1738 for all of Africa Australia spends as much each year on the RRT as it allocates to the UNHCR
The Migration Act
36 of Migration Act 1958 (Cth)(MA):

Incorporates refugee convention test for granting of protection visa
91A-91W of MA:
Narrowed definition of persecution, particular social group, serious crime, safe third country and access to protection from third countries.
189, 196 and 245 of MA:

Provides for mandatory detention and removal.
The Tampa case

Ruddock v Vadarlis [2001] FCA 1329: (page 447)
433 Afghan refugees were refused entry into Australia and moved to Nauru Master of ship MV Tampa picked up the distress call, was taking the refugees to Christmas island as closest port of call but at request of Australian government turned to Indonesia and the refugees protested with threats to suicide etc. Mr. Vadarlis represented the refugees, arguing the Australian governments action in removing them to the Island of Nauru was in breach of Australian law. Three separate cases: Tampa Case (North J): Government had flouted its own migration laws Ordered the Tampa refugees to be brought to Australia for processing of protection visa applications Upholding the legality of the detention and expulsion of the Tampa refugees Sanctioned the federal governments continued use of military force to remove asylum seekers from territorial waters. The government had vague executive or prerogative power under the Constitution to detain and remove aliens and take any other action it considers necessary to protect national sovereignty Refused special leave application The claim for a writ of habeas corpus had been overtaken by events, namely the governments forced transfer of the Tampa refugees to Nauru, If the persons concerned (Tampa refugees) are now detained, each would be detained in a foreign country subject to whatever is the law of that country Disregard affidavits showing that the Australian government was paying all the costs of the Nauru detention camp and that Australian officers were overseeing the arrangements there,
Tampa case (Full Federal Court):
Tampa Case (High Court Special Leave Application):
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Judges did not clarify the issue of standing for lawyers seeking to protect the rights of refugees
Basic contradictions
Governments have generally facilitated the globalization of economic life, seeking to attract wealthy international investors while shutting their doors to the impoverished The growing global mobility of people and commerce is increasingly in conflict with the efforts of governments to prevent the flow of unwarranted arrivals While capital is free to roam the world, national governments deny its victims that right Governments maintain national barriers in order to better service the needs of transnational corporations, which require reliable supplies of skilled, as well as lowcost, labour Those who are wealthy or highly skilled are more likely to be granted residence than poor and working people of less skilled labour One law for wealthy and another for the poor Australia claims to have open migration policy but in reality if you have $2 million then you obtain 80 of the points needed for a visa. The poor can only dream of these figures, application fees that exceed a years earnings for the average person living in third world countries, charges for skill assessment, English language tuition and medical testing exceed their annual income.
Echoes of White Australia

Immigration Restriction Act 1901 (Cth): Directed at preventing the entry of non-whites Required deportation of some 8700 indentured South Pacific workers and their families Pacific Islanders Labourers Act:
White Australia policy was only abandoned in the mid-1960s However, consider current government support for: Mandatory detention of asylum seekers Restriction of detainees legal rights, Other measures designed to deter applicants refugee status (limited visa protection, limited social security rights etc).
Defending rights within the Convention

New uses can be founded for the Refugee Convention in recognizing international human rights claims on grounds of oppression related to gender and sexuality Consider use of the International Covenant on Civil and Political Rights, which can be used to intervene on behalf of those needing protection.
High Court sanctions indefinite detention

Al-Kateb v Godwin [2004] HCA 37: (page 455)
The federal government can detain rejected asylum seekers indefinitely, regardless of their inability to be deported to any other country and irrespective of the intolerable conditions inside the governments immigration detention centres
Page 64
The government could use the aliens powers of the Constitution detention for as long as necessary
51(xix) to impose
Even if deportation were not possible, indefinite detention did not unconstitutionally impose punishment without trial
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36:
The conditions of incarceration in the countrys remote camps, no matter how harsh and inhumane, could not provide a defence to a charge of escaping from immigration detention (majority) Conditions of incarceration, if inhumane, degrading and intolerable, could be a form of punishment not sanctioned by a court of law and therefore unconstitutional (per Kirby J) Detention in such circumstances is potentially in breach of international law (per Kirby J) A prison inmate is not constitutionally entitled to medical treatment (approval of decision by Scalia J in Wilson v Seiter)
The Conventions fundamental flaws

Refugee Convention (RC) is narrow and restrictive First, the RC definition does not protect the starving, the destitute, those feeling war and civil war, or even natural disaster Second, the RC does not recognise the individuals right to asylum, only the right of national states to decide who enters Third, those accepted as refugees have no right to permanent residence Fourth, the RC does not impose obligations on contracting states to take offshore applicants Governments refer to unwanted arrivals as queue jumpers, illegals and forum shoppers
The need for an alternative perspective

Limited safe havens, temporary protection, international, regional and bilateral cooperation, and burden sharing Cultural shift and education regarding all fellow Australians Need to deal with disparities in wealth and life opportunities
Citizens and democratic rights

Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1:
Court upheld the power of the government to detain non-citizens (aliens) indefinitely without trial, a practice that breaches freedom from arbitrary detention Australian citizens enjoy a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth The constitutional immunity did not extend to immigration detainees because they were not being incarcerated by way of criminal sanction but rather to protect the national interest In a way they were voluntary prisoners, they were free to return to their country of origin if they wished. Page 65
Alien power of Constitution asylum applications
51 (xix) can be used to detain, investigate and determine
Global citizenship
It is now necessary to replace the nation-state system to allow for the harmonious growth of world economy. That transformation is inseparable from establishing a new global conception of democracy and citizenship
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Law Foundation 2010

Law Foundation Allen Hsu 2010

Law Foundation Allen Hsu 2010

Law Foundation Allen Hsu 2010

Salomon v Salomon & Co Ltd [1897] AC 22: ..................................................................... 50

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Ruddock v Vadarlis [2001] FCA 1329: (page 447) ............................................................. 63

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Modus Ponens (MP)

Modus Tollens (MT)

Hypothetical Syllogism (HS)

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Single Inductive Generalisation

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Law Foundation Allen Hsu 2010

Therefore in this case the debt was absolutely extinguished.

New principles are found using inductive generalisation

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Formal fallacies and fallacies of relevance

Straw man fallacy

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Weak Inductions and presumptions Weak analogy

Hasty Generalisation and false cause

Argument from Authority

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Law Foundation Allen Hsu 2010

Science and Law

Scientific theory and method

From there we can come to a deduction:

Testing type 1 theories: proportions

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Prospective and retrospective tests

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Fallacies of statistical reasoning

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Schick and Vaughn observe:

Deductive Reasoning in scientific theory testing

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Fallacies of Type 2 testing

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Ethics and Law

Nature of moral ideas

Normative ethical theories

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All count equally

Critique of Rule utilitarianism

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Beneficence Non-maleficence Self-improvement

Feminism and Aristotle

Relation of ethical theories to law

Consequentialism Individual rights-based Professional ethics

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Human Nature, Human Rights and Law

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Freedom from arbitrary arrest, torture and cruel punishment

Classical liberalism and justice

Early bills of rights

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Law Foundation Allen Hsu 2011

As the ground of all life value. As he says:

Against methodological individualism

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Social liberal ideas of justice

The UN and the UDHR (Universal Declaration of Human Rights)

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Second generation social liberal rights include:

Law Foundation Allen Hsu 2011