3.what is law? who is law for? what is law doing?

Davies, 2017, p.30 →

"Law does not do anything or say anything itself, and is not even an identifiable thing – all of these are shorthands for the actions of human beings enmeshed in material contexts who use an imaginary of law to relate and engage"

what is law?

common sense answer: law is rules = simplicity

The identification of law as coming into being as a system of norms that are held to be valid
through recourse to its sources, is familiar within an Anglo-American and Euro-centric legal
frame and is characterised through legal codification and legislation.

• Joseph Raz (1970).

  • This is described as alegal system and delineates what is considered law and what is not.

Law is a discrete body of knowledge, object of study, clearly defined and labelled, with
distinct boundaries and categories. This is done in law schools, relatively recent
phenomenon. Law’s distinctive logic mode of reasoning and decision making. Law is separate from society

Common sense is that there is one right answer to the question ‘what is law?’: law is rules

Counter claim: Law is everywhere

williams→

• ‘life is complicated, anaylitical claim’

mansell→

• ‘a legal system has no function in itself but only as it plays a role in the society in which it exists’

Davies→

• ‘law as rules approach obfuscates the possibility for law in “human
  identity, the land, habitual social practices, narratives, songs, dances,
  pictures, myths.”

it is not only limited but positively misleading. it alleviates the law as rules approach from taking responsability for the gendered, racialised and socio-economicaly stratisfied nature of law and normative standards in law. It maintains the status quo.

Counter claim: the rules of the game are not neutral

if we ignore the question of who is law for we ignore the role of law in maintaining a world in which liberal capitalism dictates the fortunes and misfortunes of citizen

Mansell→

how law creates ‘fortunate’ and ‘unfortunate’ people in society

Mansell's critique highlights how the legal system can perpetuate inequality by upholding a "formal equality" that reflects the norms and values of historically dominant groups, often to the detriment of marginalized communities. This version of equality, rooted in the perspectives of white, heteronormative, able-bodied, and property-owning men, sets a standard that may fail to recognize the diverse experiences of others as legally significant. As a result, certain groups are inherently more "fortunate" under this system, enjoying greater inclusion and access to justice, while others find their experiences unacknowledged or excluded.

Key Points:

1. Formal Equality and Limited Inclusion:

- Formal equality refers to treating everyone the same under the law, which, in theory, sounds fair. However, it often means that the law does not account for differences in people's social, economic, or personal circumstances. This approach can disadvantage those whose experiences do not align with the dominant norm, such as individuals from minority racial, gender, or socioeconomic backgrounds.

2. Access to Justice and Financial Barriers:

- Access to justice often depends on one's ability to afford legal representation, meaning that those with greater financial resources can navigate and benefit from the legal system more effectively. This financial barrier contributes to creating "fortunate" individuals—those who can afford justice—and "unfortunate" individuals, who cannot.

3. Recognition of Experiences:

- Some experiences, such as those aligned with white, male, and able-bodied perspectives, are recognized and prioritized in legal contexts. Meanwhile, experiences from marginalized groups are often seen as irrelevant or excluded, making it harder for these individuals to seek validation, protection, or recourse within the legal framework.

4. Power Dynamics in Lawmaking:

- Mansell argues that law tends to reflect the interests of those in power, who are typically the same individuals who create and enforce the laws. This dynamic suggests that the legal system is structured in a way that inherently benefits the social group that has traditionally held power, embedding their perspectives into the fabric of the law itself.

5. Struggle for Legal Recognition:

- Because the law does not automatically recognize the experiences of marginalized groups, there is often a struggle for these groups to gain legal acknowledgment and protection. This means that the legal system, as it currently stands, was not necessarily designed with everyone in mind, making access to justice and inclusion a continuous fight for underrepresented communities.

In summary, Mansell argues that the law’s framework favors certain groups while marginalizing others, leading to systemic inequality. Formal equality in law often masks these disparities, requiring marginalized groups to continuously fight for recognition and access, highlighting a system built by—and for—those who historically held power.

Does law work better for some than others

what happens before law becomes rules?

• in many legal systems, definitional power in law—the authority to define, create, and shape laws—is typically held by those in positions of political and judicial power, which historically has often included individuals from privileged backgrounds, such as white, heteronormative, male, able-bodied, upper-middle, or upper-class individuals. These lawmakers, often politicians, judges, and influential legal theorists, bring their own assumptions, values, and life experiences to the legislative process, which can subtly (or sometimes explicitly) shape laws in ways that reflect and protect their own interests and perspectives.

• The life experiences of these lawmakers can heavily influence what they see as normal, worthy of protection, or socially valuable. For instance, lawmakers from privileged backgrounds may not directly understand the daily realities faced by marginalized communities, such as financial instability, racial discrimination, gender-based violence, or disability-related challenges. Consequently, they may unknowingly exclude or overlook issues that do not directly affect their own lives or social groups. This limited perspective can result in legislation that fails to address, or even exacerbates, the difficulties faced by less privileged groups.

• Legislation shaped primarily by those in power often does not center the needs of "unfortunate" or marginalized members of society. Although there are laws intended to address social inequities, the overarching legal structure may still perpetuate existing power dynamics. For example, legal protections around labor, housing, healthcare, and social welfare often fall short for low-income or disadvantaged groups, partly because the lawmakers themselves may not share or fully understand these experiences. Moreover, the legal system’s procedural complexity and financial barriers make it harder for those without resources to access justice, effectively privileging those who already hold power.

what happens after law becomes rules?

• law is not so much what the text says, but rather what the actors do with it

  • law is not just a set of wruten rules; its also shaped by how people( legal actors) interpret, apply and enforce those rules.

• While financial resources are a significant barrier to justice, true access to justice also requires education, knowledge, and understanding of the law. People need to be aware of their rights under laws related to equality, human rights, and other protections. Without knowledge of these rights or access to someone who can interpret complex legal language, individuals may effectively be excluded from the benefits of the law, even if they could technically afford legal services

• Legal language and procedures are often complex, making it difficult for individuals without legal training to understand their rights and navigate the legal system. If a person does not know about specific laws or cannot afford someone to help them interpret and apply those laws, they are at a distinct disadvantage. This lack of legal literacy effectively places them "below the law"—not in a formal sense, but in a practical one, where the protection and empowerment the law is meant to offer are out of reach.

• True equality under the law requires more than just the presence of laws; it requires equitable access to the knowledge and resources needed to exercise one’s rights. Those without this access may find themselves excluded, as they cannot fully understand, assert, or defend their rights. This inequality creates a divide in legal empowerment, where certain groups are better positioned to utilize the law to their advantage, while others may be left vulnerable and disempowered.

what is law doing? Some do better in law

• law doesnt only keep society from chaos but it also inscribes and reinsbcribes a form of cosial order through normative standards

• including and excluding

  • it creates boudaries, citizens, no citizens, those can legally marry, those who cant, enables the exploitation of sections of society and communities

what is law being made to do? by whom?

“Law does not do anything or say anything itself, and is not even an identifiable thing – all of these are shorthands for the actions of human beings enmeshed in material contexts who use an imaginary of law to relate and engage”

Who are these human beings enmeshed in material contexts using the imaginary of law to relate and engage?

• people in positons of social, economic and political power, historically, white upper or middle class, heteronormative, able bodied men

• this concentration of power can lead to a legal system that priotieses the value, interests and perspectives of this group, often at the expense of the mariginilised communities

• The concept of law as an "imaginary" implies that law is a shared idea—a collective belief system—that shapes behavior and maintains order.

• However, since this "imaginary" is defined by those in power, it often includes assumptions that align with dominant perspectives.

  • For example, criminal laws might focus more on certain types of offenses commonly associated with marginalized communities, while economic laws might protect the interests of wealthier classes.

• The "map" of law, therefore, tends to privilege dominant perspectives while downplaying issues that affect marginalized groups.

Which race, class and gender interests does law prioritise?

• the socially dominant group

• this means that that issues that disproportionately impact marginalized groups may receive less attention or protection under the law.

• Laws about property rights, inheritance, business, and even criminal justice often reflect the needs and perspectives of those who hold economic and political power, reinforcing social inequalities.
  

Is this related to who is writing the law, who is defining the law, who is drawing the map of law, who is speaking in law?

• those who create and define the law are usually in positions of privilege and influence, such as politicians, judges, legal scholars, and top-tier attorneys.

• Since these individuals predominantly come from similar backgrounds (often educated, middle or upper class, and white), their personal experiences shape the language and priorities of the laws they create.

• The judiciary, especially, plays a critical role in “speaking” the law by interpreting statutes and legal principles.

• When this judiciary is not representative of the broader population, it can lead to interpretations that lack inclusivity or awareness of diverse social experiences.
  

beyond ‘one right question’ and one right answer’

Raimon Panikkar, a multicultural legal theorist, acknowledges ‘every question conditions its possible answers’
The what is law? question has a preconditioned and correlative ‘one right answer’: Law is rules.
Asking this predetermined question excludes considerations of power, politics, coloniality, race,
gender, socio-economic stratification
To get to this we need to ask other questions: who is law for? What is law doing? What is law being made to do? And by whom?

Legal Positivism

‘In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.’

= Law’s validity stems from recognized sources rather than moral judgments
- (J GARDNER 2001, P. 201)

what is valid law? 'the ‘properly legal perspective’

Positivist epistemological assumption that to have knowledge of law is to have knowledge of the rules located in a particular hierarchy of norms.

Positivist definition of law: The idea that law is valid if it emanates from a vaild recognised source: the state, legislation, case law

the self-image of the canon of legal positivism as the “properly” legal perspective. Minkkinen (2013), p. 119.

In this sense we are all legal positivist because we deal with law as rules

The power of rules = the rules of power

Under legal positivism rules are very powerful but we also need to acknowledge that these powerful rules are the rule of power – they are written and legitimised by those in power so do not challenge that power (maintenance of the status quo)

The self-appointed task of orthodox legal theory (positivism) which “dominates the terrain of analytical jurisprudence” has precisely been to encourage unity through defining a “dominant master narrative” of the legal.

→Davies (2017), p. 25.

• This is the relationship of legal rules to power – nation state centred theories of law that rely on the power of the state to identify valid law
  

Legal positivism not as the purest form of legal knowledge and truth, but rather the form of legal knowledge that is most intimately related to power in liberal political arrangements. Political power is therefore always invested in the positivist position, and vice versa

→Brayson, 2019

Who defined the canon of legal postivisim?

Seperation of law and moraliy

• Laws/L/law is not vaild because it is morally right Laws/L/law is valid because it emanates from a valid recognised source: the state, the legislature, the courts

• In explaining and justifying what is law, legal positivism merely has to show that a rule emanates from a state source

• Legal positivism does not have to consider what law is doing, who law works best for – separation of law from society

• Legal positivism does not consider the relationship between a particular law and the power of the person who wrote it
  

  • Do you think it is possible to create law without reference to moral judgment and standards?

  • Is the claim to a separation of law and morality a way of hiding whose morality is the guiding principle when writing valid law and legal rules?

  • Whose moral judgment and standards are implicit in the approach of legal positivism?

Jurisprundence

• Jurisprudence is derived from the Latin ‘uris’ ‘of right, of law’ and ‘prudentia’ ‘knowledge, a foreseeing’

• Jurisprudence & legal positivism therefore claim primacy over what it means to have knowledge of law

• This is an epistemological claim that to have knowledge of law means to have knowledge of the rules

  • Is it possible to extract legal positivism from its material and ideological emergence and who is writing positive law as legal rules?

Legal positivism relies on excluding social context

• Legal positivism (law as rules) may not be malicious in excluding social context. But it relies upon this to make its claim to law as rules.

• Positivism therefore “includes by excluding” both epistemologically and materially, including, gendered exclusions, racial exclusions, class exclusions and the colonisation of land, people and knowledge.

• it relies upon these exclusions to make its claim to law as rules. Law doesn’t have to take responsibility for these exclusions

• Davies has described this approach as ‘Brighton rock law’ whereby the description or concept of state law remains the same all the way up and all
  the way down the self-proclaimed system,

  • “an imprint on all forms, all experiences, all locations, all sources, and all constructions of law.”

    • Davies (2017), p. 24.

Critique of Legal Positivism

• Positivism sustains the status quo and neglects the relationship between law and societal power structures.

• “The point is not that we ought to abandon positivist ideas about law (or for that matter the critique of positivism), but rather that it is also possible to regard law as a different set of interactions altogether.”

  • Davies (2011), p. 2.

7. Human Rights as a Reflection of Law

Role of Human Rights

• Human rights serve as a moral backbone ( the moral conscience to positive state law ) to challenge state law ( for example in the Universal Declaration of Human Rights and the European Convention on Human Rights (ECHR), which are
  undoubtedly powerful tools to challenge state laws and action)

• These provide transnational monitoring of state action based on a universal discourse of rights.

• The idea that everyone has human rights based on the fact that they are
  human = universal

• Human rights protect individuals from interference by the state (not group
  rights)

• Universal human nature which is knowable by reason and different from the
  rest of reality (rivers, mountains, lakes, animals)

• Presupposes that “human” is a universal category accepted by all and that the
  concept of human does justice to everyone

• This is accepted in universities, the media, NGOs, activist communities

  
  

Paradoxes in Human Rights Law

• Human rights are ‘transnational’ - to review state law and action. Human rights are supposed to challenge state action

• Human rights need institutional support to be valid, questioning the very state power meant to uphold them.

  • for example in the UK these ‘universal’ rights must be institutionalised through the Human Rights Act (1998)

• The paradox that universal rights existing transnationally need to be implemented in a domestic context – on the one hand by public bodies and the courts in use – on the other decisions of higher human rights courts such as the ECtHR must be implemented by a national government

• The paradox that universal absolute rights rely on the absolute power of the state where states can act as gamekeeper to their own human rights review (both cannot be absolute)

  
  

Human Rights Instruments

• Universal Declaration on Human Rights (1948) – no central implementation
  mechanism, no court – universal claim to be found in Article 1: ‘All human beings’

• European Convention on Human Rights (1950) – strong implementation mechanism
  at the European Court of Human Rights – universal claim found in Article 1:‘everyone’

• This is incorporated explicitly into the law of the UK through the Human Rights Act
  (1998) you will learn more about this in Con & Ad

• In providing a moral conscience for positive law human rights can and will appear in all of the ‘specialisms’ of law that you will study

The triumph of human rights

• One of the noblest creation of our philosophy and jurisprudence. Human rights are the greatest political and legal invention of modern political philosophy and jurisprudence

• Best proof of the universal aspirations of our modernity

• Introduction of the Universal Declaration on Human Rights 1948

• New jurisprudence of rights to mitigate the moral poverty of legal positivism =
  morality of the law

• International recognition of human rights marks the end of the ignorant past

Problem: more human rights violations committed in this rights obsessed century than at any other point in history

• Holocaust

• Wars carried out in the name of human rights

• Enforcement of human rights through criminal law

• Human rights as a tool of Empire

• Human rights as a tool of neo-colonial agendas

• Gap between the theory and practice of human rights

• Disconnect between human rights on the page and human rights in the
  everyday

The ‘who’ of human rights

• Who are human rights for? Who is the human of human rights?Are some more equal than others in human rights terms? What about those without human rights?

• De-colonial claim which says: move away from the imperial/colonial consequences of a universal standard of the human – closer to grass roots movements = peaceful world

  • (Mignolo)

• multicultural claim are human rights a western concept? Different ‘windows’ through which to view the world

  • Panikkar

• The critical race theory claim which says: dissatisfaction with rights as a discourse premised upon the ideals of assimilation, ‘colour-blindness’ and integration.

  • williams

• Call to context, rights have benefitted white people more than people of colour specifically in the US context –Rights have never been universal because there were so many people without them - give rights away