Week 7: Being Realistic and Global Minded
The first chapter of reading was both a practical and philosophical / historical one. It was all about being realistic about our understanding of the law and how it operates. There was an examination of the formalistic and realistic methodologies of legal reasoning. Whilst a formalistic view would be considered to be the most ‘fair’ method of legal reasoning, it is not realistic to expect an individual to be able to completely formalistic – some elements of bias, prejudice, and own beliefs will also play a part in the decisions made. This is why there has been suggestion made that the only way for strictly formal outcomes to occur it would be better for a computer or robot to make the decision (although after watching Elysium, I don’t think I would want to be judged by a computer). The realistic legal view of legal operation is just that. It acknowledges that non-law biases and values will play a part in the decision-making process, but it is tempered by using pre-existing legal rules, provisions and precedents to validate the decision.
The remainder of this chapter was about the different legal theories that have been developed over the years which have informed and lead to the systems we have today. These included from Marxist legal theory, critical legal studies, and critical race theory. I particularity like the mention when talking about Marxism to that the capitalistic system uses the legal system to keep wealth, control and power with the elite. This is clearly demonstrated by some of the issues that are starting to become public knowledge in recent years (mainly through non-mainstream sources such as WikiLeaks, RussiaToday and the recent events such as the disclosures by Bradly Manning and Edward Snowden, and the mass demonstrations have swept the world on issues such as police brutality, racial discrimination and information privacy).
The second part of this week focused on the global legal context, and what this means for us as students, and as graduate / practicing lawyers. This section was quite interesting, as we briefly looked at the different forms of government (monarchies, presidential systems, one-party states, etc). Then we looked at the different types of legal systems used around the world; the common law system used in the UK, USA and Australia, among others; the civil law system which is more popular in European countries; and the religious legal system used in the Vatican City and Iran. We looked at international law, and how as a student, we need to be aware that there are international treaties and agreements that bind states, changing the legal requirements and processes in some cases. We need to consider how these international laws would impact on cases we deal with, such as a contract between businesses in two different states – which state has jurisdiction, and does something like the United Nations Convention on Contracts for the International Sale of Goods have any bearing on the case?
Lastly, the text focused on global opportunities as a student and as a lawyer. It suggested that as a student, we needed to ensure we developed the skills, knowledge attitudes that would help us work in a global context. And if we wanted to pursue legal work at a global level, rather than at a local or state level, that there were plenty of opportunities in private practice and government. And if that doesn’t provide the opportunities we see, we can always consider volunteer programs such as Lawyers Beyond Borders, which can be very rewarding and provide much-needed assistance to people in need.