Unit 1          Legal Foundations  &  Legal Philosophy

VIDEO → Right & Wrong ... The Is/Ought Problem Explained
What Makes Law Law?

What Gives Law its Validity?

Why are Laws so Highly Regarded?

What is the Purpose of Law & How Does this Purpose Relate to Ideas of Justice?

Who Defines What is Moral or Not?

Does Morality Always Stay the Same?

If You Disagree with the Moral Basis of a Law Would You Follow It?


PROBLEM 1   →   The Problem of Acting Justly

The Ring Thought Experiment  →  How would a person act if they had the power of invisibility?

IMAGINE → a society where everyone must decide to play a simple game -- ONCE THE RING STOPS SPINNING DO I PICK IT UP OR NOT?

BEFORE YOU PLAY → You Can Ask 3 Questions.



A KEY DISTINCTION IN HUMAN NATURE EXPOSED BY THE RING THOUGHT EXPERIMENT →

Is acting justly something that is good in and of itself?  Do people behave justly simply because it is moral and good in and of itself?

OR

Is acting justly something that is good because it entails good consequences?  Do people behave justly simply to avoid consequences set out by law?



The Eichmann Case  →  Applying the Concepts of Acting Justly to a Unique International Law Case


PICTURING JUSTICE PHOTO ANALYSIS

→ Building A Ladder of Inference to Analyze Source Evidence
WATCH → Official Trailer of the Film Operation Finale 2018 (the film focuses on the Eichmann abduction & extraction).


REQUIRED VIEWING & READING

READ this excerpt from the 2020 book Humankind: A Hopeful History as follow-up to our study of the Eichmann Case.  LINK Eichmann Reading


OPTIONAL READING
Israel 1961 -- Adolf Eichmann listens to the reading of a 15 count indictment as a guard looks on.


WATCH → Final speech by Hannah Arendt about the Eichmann Trial & how to judge Eichmann (FILM CLIP from 2012 film HANNAH ARENDT)
Eichmann Case Brief



Applying the CORE 4 Legal Theories to Judge the State of Israel's Actions in the Eichmann Case

CORE 4 LEGAL THEORIES  →  Studying How to Judge From 4 Different Theoretical Approaches
* adapted from OJEN Legal Philosophy In-Brief (http://ojen.ca/sites/ojen.ca/files/resources/In%20Brief_Legal%20Philosophy.pdf)

OBJECTIVE  → From the CORE 4 select the theory that offers the best approach to judging Israel's actions as right or wrong in extracting and prosecuting Eichmann.  Provide reasons that directly reference core concepts from the theory content studied in Unit 1.

TASK  → View the post below in the 12 Law Google Classroom under Class Materials



PROBLEM 2   →   The Problem of How to Best Judge

The Joe & Simon Mountaineering Case Study  →  The Problem of How to Best Judge When Taking Law to the Extremes

* WHAT IS THE MORAL CHOICE?
* WHAT IS THE JUST CHOICE?
* WHO DEFINES WHAT IS MORAL OR NOT?
* DOES MORALITY ALWAYS STAY THE SAME?
* HOW MUCH DO CIRCUMSTANCES MATTER IN JUDGING SOMEONE'S ACTIONS?
* IS THERE ANY SOCIAL PURPOSE TO CRIMINALIZING SIMON'S ACTIONS?
* DOES ONE JUDGE BASED ON WHAT IS or WHAT OUGHT TO BE?
VIEW FACT PATTERN → Make note of key details, testimony by Joe &/or Simon, and relevant circumstances as the fact pattern unfolds.
WATCH → a clip of the 2003 film Touching the Void to understand the fact pattern.

TASK → How do you judge Simon's action of cutting the rope?  Draw upon the fact pattern & particular facts, circumstances, and video testimony to support your reasons.


LINK TO A PRECEDENT CASE




CORE 4 LEGAL THEORIES  →  Studying How to Judge From 4 Different Theoretical Approaches
* adapted from OJEN Legal Philosophy In-Brief (http://ojen.ca/sites/ojen.ca/files/resources/In%20Brief_Legal%20Philosophy.pdf)


ANSWER KEY TO MATCHING LETTERED THEORY STATEMENTS TO THE CORE 4 LEGAL THEORIES
Fontana Dictionary of Modern Thought -- Additional Definitions of Legal Theories



Positivists argue that the rules that govern law-making (i.e., called "groomed norms) are socially accepted and thus validate law ... BUT what happens if these law-making rules are rejected?  At base, protests, civil disobedience, and revolution are on some level a rejection of positive law.  So, does law remain valid under broad social rejection?


WATCH → Video animation of the concept of Civil Disobedience and the validity of law.

INDEPENDENT LEARNING TASK      CUTTING OUT & ORDERING THEORY STATEMENTS INTO THE CORE 4 THEORIES



BASIC IDEAS BEHIND EACH OF THE CORE 4 LEGAL THEORIES


TESTING STUDENT UNDERSTANDING → 3 ACTIVITIES

1.     Match Each Lettered Statement to a Numbered Legal Theory

LEGAL THEORY SPECTRUM

2.     MATCHING THEORIES TO CONCEPTS

3.     COMPARISON STATEMENTS


JUDGING JUDGES → ASSIGNING A LEGAL THEORY TO REAL JUDGES IN ONTARIO


Additional Material → CORE 4 Legal Theories

NATURAL LAW
CRITICAL LEGAL THEORY → FEMINIST LEGAL THEORY

→ Law is an instrument of oppression by men against women.

→ "If you want to know who is being hurt in society, look at what is being done, and to whom, in pornography and then go look for them in other places in the world." Catharine

     MacKinnon

→ Legal institutions are systematically biased against women to gain positions of power & prestige.

→ Law plays a key role in women's subordinate status.

→ Who creates the law and who interprets the law?


CRITICAL LEGAL THEORY → MARXIST LEGAL THEORY

→ Law is simply a tool to deepen the status quo of capitalist class holding power over working class.

→ The inequalities in the economic system reinforced by law.

→ Law is simply class rule that enables the wealthy and protects the interests of the economic elite.

 


CRITICAL RACE THEORY

→ Studied in the context of the Jackson Case.


CRITICAL LEGAL THEORY → INDIGENOUS LEGAL THEORY

→ Studied in Unit 3 Aboriginal Law  Indigenous Law


Applying the CORE 4 Legal Theories to Judging the N.S. Case








MATERIAL BELOW NOT COVERED IN 2021-2022 MODIFIED SEMESTER SYSTEM

Law as Truth-Finding


7 Stories

Overcoming the Monster
Rags to Riches
The Quest
Voyage and Return
Comedy
Tragedy
Rebirth

What are the qualities of a prototypical judge? 

 

What Do We Expect From Judges?  What if a judge falls outside the archetypal judge? 

                 

                E.g.  Associate Chief Justice Lori Douglas (Manitoba Court of Queens Bench Family Division)

                E.g.   Justice Michel Girouard (Quebec Superior Court)

                E.g.  Justice Robin Camp (Federal Court of Canada)

               

 

How do judges judge?  ENTER Positivist, Realist, Naturalist and CLT approaches to judging. AND


Should judges, as those given the power to judge others, be judged on the basis of their skill and experience or based on their image and personal lives and choices when made public?  How does public perception factor into this question?


Using Archetypes to Expose Blindspots and Solve the Truth Problem in Law 
THE FUNDAMENTAL PROBLEM IN LAW

         

What are acceptable versus unacceptable ways to uncover or expose "THE TRUTH"?  Buried Treasure Analogy.         

         

What if 2 different yet equally plausible "truths" are presented?  How does one judge?  This problem is known as the "RASHOMON EFFECT", which is a Japanese film that grapples with this problem of multiple truths that are equally likely and believable.


USING ARCHETYPES TO HELP GRAPPLE WITH THE "TRUTH" PROBLEM


Archetypes Slide Show


The "Judgement of Solomon", human nature and the use of archetypes to find the truth among multiple truths.

 

Archetypes can be used to help us understand the problems with, short-comings of, and challenges faced when truth-finding and judging.  They can help us interpret our observations when judging and enlighten us as to why we judge the way we do.


Archetypes are RECOGNIZABLE and TYPICAL PATTERNS of BEHAVIOUR over time.


Archetype refers to a stereotype, epitome or GENERIC VERSION OF A PERSONALITY.


Archetypes can be characters, places, or things that are repeatedly presented in films.


For Example

          THE JUDGE - skilled at using wisdom and compassion to rule with fairness.

          THE SLAVE (THE OPPRESSED) - held in circumstance without opportunity for choice and dignity.

          THE SABOTEUR - a betrayal of self to evil and subsequent return to good.

          THE TRAITOR - a betrayal of others.


Carl Jung imagined 5 key archetypes that make-up our unconscious self:

          THE SELF (EGO) (one's own private identity and personality or image of themselves)

          THE SHADOW (the opposite image or the qualities with which the self does not identify, yet possess nonetheless)

          THE ANIMA (the female image in a man's mind)

          THE ANIMUS (the male image in a woman's mind)

          THE PERSONA (the mask that protects the self from negative judgement, images or experiences)


CENTRAL QUESTIONS 

          Which archetypes are appropriate to use when judging?

          Can archetypes help us judge more accurately, fairly, justly?  Are archetypes necessary to judge?

          Is there evidence or examples of judges or lawyers using archetypes to help judge / deliver justice?

          Can studying film help us identify and debate the use of archetypes in the act of judging?

 


The Survival Archetypes and The Wizard of Oz


Lawyers Are Rats


LAW AS SHIELD, LAW AS SWORD





Shield - a tool of protection, equality under the rule of law.

Sword - a tool of aggression, coercion, oppression, violence, subordination.


LAW AS ARCHAEOLOGIST, LAW AS ARCHITECT

               Archaeologist - uncover, discover the truth.                           Architect - construct, build, interpret, re-interpret the truth.


Legal  Reelism:          Films  as  Legal  Texts

Legal Theory Through Film


All Class Film → Michael Clayton
Summary: Michael Clayton (George Clooney) is an in-house "fixer" at one of the largest corporate law firms in New York. At the behest of the firm’s co-founder Marty Bach, Clayton, a former prosecutor from a family of cops, takes care of Kenner, Bach & Ledeen’s dirtiest work. Clayton cleans up clients’ messes, handling anything from hit-and-runs and damaging stories in the press to shoplifting wives and crooked politicians. Burned out and discontented in his job, Clayton is inextricably tied to the firm. At the agrochemical company U/North, the career of in-house chief counsel Karen Crowder rests on the settlement of the suit that Kenner, Bach & Ledeen is leading to a seemingly successful conclusion. When the firms top litigator, the brilliant Arthur Edens, has an apparent breakdown and tries to sabotage the entire case, Marty Bach sends Michael Clayton to tackle this unprecedented disaster and in doing so, Clayton comes face to face with the reality of what he has become.


Michael Clayton Clip Chapter 7 "Milwaukee"
After viewing this scene and considering what each character said, identify which legal theory you think Arthur Edens and Michael Clayton represent.  Try to use specific lines from the scene to support your conclusions.
Michael Clayton
Karen Crowder
Arthur Edens
Don Jeffries
Marty Bach

Chapter 7 "Milwaukee" Sample Notes Needed to Think and Write About Legal Theories and Themes

Arthur Edens
"I took a deep cleansing breath and I set that notion aside, I tabled it ... as true a thing as I believe that I have witnessed today ... "

"... it must stand the test of time and Michael the time is now ..."

"... that you're here ... there's a reason, a reason it's you Michael, surely you have some sense of that, how it pulls together, how it gathers ... nurse Michael, the secret hero, the keeper of the hidden sins ... tell me you can see that Michael, for Gods' sake ..."

"I could stand here and tear off my f*#king skin and not get down to where this thing is living ..."

"6 years I have absorbed this poison ... 400 depositions, 100 motions, 5 changes of venue, 85 000 documents in discovery ... 6 years of scheming and stalling and screaming ... and what do I got?"

"I've spent 12% of my life defending the reputation of a deadly weed killer ..."

"One night, one night right ... I look up and there's Marty in my office and he's got some champagne ... he tells me we just hit 30 000 billable hours on U-North and he wants to celebrate ..."

PROSTITUTE imagery ...

"... it's years, it's lives ... is this me, am I some freak organism sent here to sleep and eat and defend this one horrific chain of carcenogenic molecules ... is this my destiny, is this my fate? ..."

" ... they killed them Michael ... those small farms, family farms ... and for 50 million dollars in fees I've spent 12% of my life destroying perfect Anna and her dead parents and her dying brother ..."

"... the world is a beautiful and radiant place ... I'm not trading that for this (anti-depressant pills ...) ..."

Michael Clayton
"if it's real the pill won't kill it ..."

Arthur Edens
"I have blood on my hands ..."

Michael Clayton
"you are the senior litigating partner of one of the largest, most respected law firms in the world ... you are a legend ..."

Arthur Edens
"I'm an accomplice ..."

Michael Clayton
"you are a manic depressive ... "

Arthur Edens
"I am Shiva, the God of Death."

Shiva → Hindu God of Death

→ Shiva represents both evil and good ... destruction that is constructive.
→ the destroyer of the world in order to re-create it.
→ responsibility for negative change in the form of death and destruction, and for positive change in the form of destroying the ego.
→ Hindus believe Shiva uses his powers of destruction and recreation to destroy the illusions and imperfections of this world, paving the way for beneficial change (i.e., justice ...?).
→ Shiva embodies untamed passion, which leads to extremes in behaviour.

Film Materials