Ellis-Jones, Ian --- "Book Review: Michael Head and Scott Mann, LAW IN PERSPECTIVE: ETHICS, SOCIETY AND CRITICAL THINKING" [2005] UTSLawRw 10; (2005) 7 University of Technology Sydney Law Review 208

Book Review: Michael Head and Scott Mann, LAW IN PERSPECTIVE: ETHICS, SOCIETY AND CRITICAL THINKING, UNSW Press, Sydney, 2005

Reviewed by Ian Ellis-Jones

In the introduction to this book the authors state that the principal aim of the book, which has been designed “first and foremost, as an introductory textbook”,[1] is to “encourage critical, responsible and creative thinking about law as a system of ideas and as a social institution”.[2]

The book is divided into three main sections. The first section, “Logic, Science and Law”, seeks to explore the interrelationships between those three disciplines. The second, “Ethics, Social Theory and Law”, discusses what the authors regard as the “principal theoretical approaches to the nature and social role of law”. The third, “Law and Contemporary Social Problems”, seeks to evaluate the role played by the law in the alleviation or exacerbation of major social conflicts.

I found the first two sections of the books the most interesting, perhaps because I share with the authors a deep concern that learning to think in the thought forms of a lawyer requires, among other things, the ability to think logically and in an ethically acceptable fashion. Sadly, all too many law courses these days neglect these two areas. Little, if any, time is spent on logic and legal reasoning in any principled sense, and our approach to ethics tends to focus almost entirely on the legal rules made by or on behalf of the professional bogies regulating the actual conduct of the legal profession, rather than exposing law students to the range of ethical theories that have been expounded over the years.

The authors make it clear[3] that they see substantial dangers in both legal positivism (with its “strongly disciplinary and black-letter approach”) and the epistemological anarchy of “faddish postmodern deconstructions lacking in all substantive content”. What is required, according to the authors, is for students to master “basic tools of critical thinking and analysis at the earliest possible stage of their studies”.[4] I couldn’t agree more and, if I had my way, I would make the study of logic and basic philosophy an essential part of any law degree as it once was in some places. Being very much of an Andersonian realist,[5] I do not, however, accept the authors’ working definition of logic as “the science that evaluates arguments”.[6] Logic is not so much a body of rules, principles and methods for evaluating and constructing arguments as a description of how things are related to each other. In other words, logic is about things, not thought. Logical thinking means relating (that is, putting together or distinguishing) different pieces of information about facts or alleged facts. In that sense, logic is a description of reality. Logic helps us to find facts and see the connections between one set of facts and another. It teaches us that a fact can be explained only as following logically from other facts occurring on the same level of observability. Even opinions and ideas can be said to be true or false when attention is directed, not to the opinion or idea itself, but to the thing that the opinion or idea or value is of. The test of a true opinion or idea is to see whether or not something is the case.

The authors rightly assert[7] that there is no special kind of logic called “legal logic”. They also assert, somewhat self servingly, that while logic has “undergone continuous development and evolution for more than 2,000 years” few contemporary Australian law texts have kept abreast with those developments. True, there are many schools of logic, but I remain unconvinced that there is more than one way in which we can speak meaningfully about the universe other than by means of the Aristotelian propositional form. (Call me old fashioned but I am firmly of the opinion that good old fashioned Aristotelian logic has never been bettered.) Although the authors are to be commended for providing an informative, intelligible and workable overview of the basic rules of applied logic that are relevant to legal thinking, they don’t make it all that clear what school or schools of logic they’re endorsing, although what they generally do expound[8] is, for the most part, not inconsistent with traditional Aristotelian logic and should prove very useful both to law students and legal practitioners.

The part of the book dealing with ethics[9] is extremely good in its exposition of the inherent weaknesses of both moral relativism and the “command” theory of ethics. As regards the former, the authors make the valid point that just “because there are differences between the values of different cultural groups does not mean that there are no correct answers.”[10] Good stuff, but, regrettably, the authors, whilst admirably drawing attention to some of the inanities of the “subjectivist” view of ethics, fail to give meaningful consideration to the “objectivist” view of ethics which asserts that there are indeed objective moral values that do not depend upon the command theory. For example, that whatever promotes or enhances human well being, is intrinsically good, can be considered to be an objective moral value. Of course, it is, as Anderson used to point out, a “relativist” mistake (that is, purporting to define something by reference to its relations to other things) to enquire as to the conditions for goodness or fairness just as it is a mistake to enquire as to the conditions for redness, for we can speak meaningfully only in terms of what are the conditions for something being fair, being good, being beautiful, being red, and so forth. However, that is not to be taken to be a question about the conditions of fairness, goodness, beauty or redness itself. For example, the features of a fair hearing in law—that is, those things that must be done in order for there to be fairness—are not what constitute a thing’s fairness. They simply permit appreciation or recognition of its fairness.

Also, there are, according to the “objectivist” view of ethics, certain self evident ethical truths such as “unnecessary suffering is wrong”, “equals are to be treated equally”, and so forth and I would have liked the authors to deal with that matter. Their attack on the assertion in the US Declaration of Independence that there are certain “self-evident truths” as being simply the result of “the struggle of the aspiring American capitalist class against British colonial domination”[11] is, in my view, far too dismissive and cynical and sidesteps the real issue.

Be that as it may, the authors rightly and robustly expose the fundamental flaws of the command theory, more than adequately pointing out that what is “right” and “wrong” do not, and cannot, depend upon external authority or the commands or existence of God. As philosopher A.K. Stout and many others have pointed out, religion is never a logical basis for morality. Why? Because religion appeals to authority (God, Bible, Pope, and so forth), and the argument from authority is no argument at all and no definition of good, nor does it constitute a theory of ethics. Also, as David Hume pointed out, one can’t logically derive a value judgment or normative proposition (‘we ought to do X’) from a factual statement (“God commands X”, “X is right”).

The book contains a very good description of such matters as natural law and legal positivism, with references to such notables as Locke, Austin and H.L.A. Hart. There is also an excellent treatment of “distributive justice”.[12] Regrettably, the book tends to become a bit polemic and doctrinaire when dealing with such matters as Marxist theory (e.g. “capitalist production is driven by pursuit of profit”),[13] anti-terrorism measures (“a grave threat to basic democratic measures”),[14] and the plight of asylum seekers (‘In most cases they have broken no laws, and have not been convicted of any offence’).[15] As regards the first mentioned matter, the authors obviously accept the classical theory of the firm that firms are solely motivated by the desire for profit maximisation, a view which seems self evidently true but which is otherwise quite simplistic in many respects. Although I personally have few, if any, problems with the views expressed by the authors in this third section of their book, the polemic tone of much of this third section of the book will alienate many more conservative readers.

Although I have a few qualms concerning the content of the book, it is nevertheless an excellent and wide-ranging introduction to the law and critical legal thinking and is suitable as a legal text commencing with first year students. I will be recommending it to my students.

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[1] p. 1.

[2] p. 1.

[3] p. 2.

[4] p. 2.

[5] C.f. John Anderson (1893–1962), Challis Professor of Philosophy, University of Sydney, from 1927 to 1958. Anderson’s central thesis is that there is only one order or level of reality, that of ordinary things in time and space, and that a single logic applies to all things.

[6] p. 11. The authors cite with approval what Patrick Hurley, in his Concise Introduction to Logic, 5th ed (Wadsworth, Belmont CA, 1994), wrote (on p.1), viz., that the aim of logic is to “develop a system of methods and principles that we may use as criteria for evaluating the arguments of others and as guides in constructing arguments of our own”.

[7] p. 15.

[8] See, especially, the material on “deduction” and “induction” on pp. 23–30.

[9] See, especially, ch. 8.

[10] p. 164.

[11] pp. 182–83.

[12] pp. 199–200.

[13] p. 250.

[14] p. 368.

[15] p. 373.