a. Truepenny CJ
i) Does the law exhaust the requirements of 'justice'? Depends on one's view of Justice. Justice in Truepenny's eyes is to extend clemency to the defendants and that if this is done then in his eyes, ' justice will be accomplished without offering any encouragement for the disregard of law'.
ii) Mercy may not be part of the law if it is followed to the letter of the law. iii) Is Mercy a prerogative of the executive? In this case yes – the Trial Judge and jury have held communications with the Chief Executive for guidance.
3. The nature of law truepenny has adopted here is one of mercy.
b. Foster J
i) What is the state of nature and what is a social contract? Where the Spelunceans really in a state of nature?
It should also be noted that the third great contributor to 'social contract theory' was Jean Jacques Rousseau. Although a champion of democracy, Rousseau wrote against the idea of rule by popular assembly.
Rousseau wrote The Social Contract in 1762. He saw the Social Contract as the solution to the problem of how man may obey his ruler but still remain free. Rousseau sought to balance the interests of the sovereign and subject so finely that he took the view that a breach of the social contract entitled the subject to return to their natural state of liberty. Rousseau argued that any loss of the rights handed up to the sovereign entitled the subject to revert back to their natural state. The state of nature was, in his eyes, a state of liberty (i.e. even a minor breach of the social contract entitled the aggrieved party to repudiate their agreement with the sovereign).
* Also see what Foster has to say on page 6 & 7 of his judgment.
ii) Is deterrence the purpose of criminal statutes? Can self-defence be stretched that far? According to Foster 'one of the principal objects underlying any criminal legislation is that of deterring men from crime. See pg 9
iii) is Foster's argument of purposive and social contract are discussed from extreme ends. – (but from a Locke perspective the line would be drawn that every person has a right to life.) He is defending See p 6
3. Assumption of the nature of law here is Positive – Natural Law – but he seems to sway towards mercy and purpose see pg 5 & 9
c. Tatting J
i) Are Tatting J's Criticisms of Foster J Compelling? Compelling. He disagrees with the state of Nature argument ii) Is the case so vexed that there is no legal answer? No, legally they broke a the commonwealth law of murder and the fact that 10 people risked their lives for the 5 explorers freedom.
Session II 1. Law & Philosophy
The philosophical legal debate in Australia, like for instance The Bill of Rights – we disagree about justice so much that the best we can do is give out opinions in the hope that the judges may sway with the communities opinion.
By making a bill of rights in writing is law
Aristotal – we are by nature political animals and that people are born into families Naturally families congregate with in villages
Socraties – thought of Athens like is mother, could not abandon, says I could go to another city, but did not want to go, as a good city would not take a person who condemned him and a bad city how could he live there.
There are two reasons we no longer think like Socraties:
1. St Augustine – city of the earth and heaven, the true city is heaven 2. 17 & 18 Cent they developed a different view, denied we were naturally social, our state of nature we live on our own, we are actually...
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