Topic

Law and Society

Case studies in developing law
Topic Overview
It also marks the halfway point of the course, so the topic gives you a chance to
bring together all the different things that you have begun to learn.
At this point you might be wondering about
whether law should be followed or obeyed. After Study Time
all, if there all these different points of view of the 12 hours
law; law is something that is different from justice;
and law is not neutral but instead can serve
particular interests is there any moral obligation to obey law?
You might also be wondering about how law-makers should
make hard decisions about what laws should be.
This topic considers these things.

Learning outcomes
By the end of this topic you will be able to:

 Evaluate whether there is a moral obligation to obey the law

 Evaluate whether lawyers have special obligations to be law-
abiding
 Consider how legislators should approach “hard issues” of
law making
 Discuss reasons that people do or do not follow laws in their
day to day lives

Topic Checklist
In order to complete this topic you must:

START BY PREPARING YOUR TOPIC CHECKLIST!

LA110: Law and Society 7.2

Review
In topics 1 – 4 we considered some different views about the rules of conduct a
lawyer should follow. In topics 5 – 7 we have considered some different views of
law and justice. We can summarise the different views, and their relationship to
each other as follows:

Topics 1 – 4 Topic 5 Topic 6 Topic 7

Perspectives on What is justice? Law making
law
Legal ethics Legal positivism Positive law
Professionalism Natural law Natural law
theory Divine command
Legal realism Mutual agreement
Sociological
theory
Critical legal Consequentialism What
studies interests are
being
reflected in
law?

From a lawyer’s view, law is man-made rules, and justice is whatever the law
says. The correct behaviour of a lawyer is governed by the set of rules known as
legal ethics.

However, most people do not think like lawyers. They might believe that the
correct behaviour of a lawyer is not just about following the rules of legal ethics.
Rather people might think that lawyers should adhere to broader or more abstract
concepts of professionalism such as acting honestly and with integrity.

Views of what correct behaviour is bring us back to what we think is moral or

ethical. Our moral or ethical opinions will vary. Some people might be influenced
by belief in a higher order. Some people might be influenced by common views
and practices in society. Some people might be influenced by beliefs about how
power should be distributed in society.

None of these views are wrong. Law-makers, in making law, will often be
influenced by one or more of these views. But, what happens if you do not agree
with the law-makers?

Legally, from a positivist point of view, the answer is that you should obey
the law, or be prepared to accept the consequences of breaking the law. But if you
look at this question morally or ethically, there is no clear answer. This has been
debated in jurisprudence (or legal theory) for at least 2000 years. Some
philosophers think that there is only a duty to obey laws if they are good, and that
you can disobey laws if they are bad laws. But what is a good law? Or a bad
law? Because of these difficulties, and the potential damage that could be caused
to law and order if people could pick and choose which laws to follow, some

LA110: Law and Society 7.3

philosophers think that state laws must be followed (but of course you can lobby
to have them changed).
The more skeptical people are of laws the less likely they are to think laws should
be obeyed. If laws are just man made, and the men and women who are making
them are making law based on their own preferences and interests then why
should we follow the law?

STUDY TASK 1

Go to www.google.com and do a search for moral obligation obey law (these are
the key search terms) and read at least one of the sources from the first page of
results

Answer the following question

1. Do you think people have a moral obligation to obey the law even if
you think it is a bad law?

This involves ethical reasoning (you are trying to apply a moral standard to
people in general) so you may want to go back to topic 5 if you are not sure of
ethical reasoning.

Check Feedback 1 when you have completed this question

Do lawyers have a special obligation to obey

the law?
Lawyers occupy a special position in society. They perform particular roles which
others cannot perform. They have a monopoly, or near monopoly on the carrying
out of legal work. Whilst other actors in society do perform types of legal work
(i.e. paralegals) lawyers have a monopoly on what is classified as professional
legal work. They are the only ones who can charge fees for the performance of
such work.
Their position is what many people perceive as a position of special advantage or
privilege in society. Sometimes the profession is seen as an exclusive 'club' which
manipulates law in its own interests. This often brings forth criticism of legal
practitioners. The idea that 'lawyers are liars' is not uncommon.
In order to ensure that lawyers do not abuse their privileges there are a number of
rules that surround the profession. There are restrictions imposed by law on entry
to the legal profession. Nobody can simply decide to be a lawyer and legally set
up legal practice. Instead as well as having qualifications in law you usually have

LA110: Law and Society 7.4

to satisfy the body that admits you to the legal profession that you are a fit and
proper person or are of good character.
Once entry is gained to the profession, there are certain privileges, but there are
also special duties and obligations which go with the role. Sometimes,
unfortunately these duties and obligations are ignored or neglected and this can
lead to disciplinary action by the professional bodies or a lawyer being removed
from legal practice altogether.
The obligations are partly legal in the sense that they are imposed by common
law or by statute. But many of then are ethical. What we mean by this is that a
legal practitioner is subject to a range of duties to act in accordance with
professional standards. These professional standards have been developed over a
long period of time and together form what we call a body of professional ethics.
Most professions are defined by a body of ethical standards which govern the
conduct of members of the profession.
One thing to realise immediately is that entry to legal practice is a privilege and
not a right. The position is one of trust and the ethical standards define the precise
nature of the relationship which the practitioner has to other members of the
profession, to the public and to the courts. Once a legal practitioner breaches that
trust then he or she will usually be dealt with very severely.
Furthermore engaging in legal practice is not just a business nor is it essentially a
money making concern. Many people think that this is all that it is but this is a
gross misunderstanding. A legal practitioner is primarily a public officer. In order
to gain entry to the profession a person has to show not only that they have basic
competence in the law. They also have to show that they are fit and proper
persons to be admitted to legal practice.

STUDY TASK 2

1. What do you think it means to be a fit and proper person or to be of

good character?
2. If a law student is known to lie and cheat and steal should he or she
be allowed to be admitted to practice law?
3. Do you think lawyers, and people training to become lawyer, should
have a special moral obligation to obey the law?

Check Feedback 2 when you have completed this question

Case study – abortion

The question of whether you have a moral obligation to obey the law relates to
questions of law-making. As we saw in topic 7 law-makers have to balance
competing issues to try to make laws that will be for the good of society as a
whole. There are no “right answers” for law makers to easily apply, often.

LA110: Law and Society 7.5

The modern nation state is built upon a complex network of written and unwritten
standards including an expectation that ‘the powers [parliamentarians] have must
be exercised reasonably, proportionately and rationally’1 and that elected
representatives have a ‘duty to account for their actions through explanation and
justification.’2 In an informal sense this requires that decisions will be
‘deliberative and consistent. The decision maker has thought about what he or she
will do and can give a reasoned justification for the choice.’3 Another aspect of
reasoned justification involves ‘conscious reflection about the probable
consequences of action.’4 In other words, we should want and expect our law-
makers to show that they have carefully thought about their position on proposed
law reforms.

The last part of this topic helps you to work through a critical analysis reasoning
process in deciding your position on a controversial law reform.

STUDY TASK 3

1. Do you agree that abortion should be illegal? Why/why not?

2. Now imagine you are a 19 year old girl who is not married and is
pregnant. You have no job and no way to support yourself or a baby. Your
boyfriend has left you. Your family does not know you are pregnant. Your
older sister got pregnant before she was married and was thrown out of
home, so you are scared to tell your parents. Your aunt is knowledgeable
in custom medicine. Would you ask her to use custom medicine to give
you an abortion?
3. Now imagine you are a pastor in a church that strongly believes that
abortion is killing an unborn child. Abortion is legal where you live but
you have organized a campaign to block people from attending the
abortion clinic. Do you think you have the right to force your religious
beliefs on other people?

Check Feedback 3 when you have completed this question

Unwanted pregnancy as a policy issue in Vanuatu

1
DJ Galligan, Law in Modern Society (2007) 131.
2
Ibid.
3
Thomas Ulen, ‘Rational Choice Theory in Law and Economics’ in Boudewijn Bouckaert and
Gerrit De Geest (eds) Encyclopedia of Law and Economics (2000) 790, 791.
4
Sung Ho Kim, ‘Max Weber’ in Edward N Zalta (ed),The Stanford Encyclopedia of Philosophy
(Fall 2008 Edition) http://plato.stanford.edu/archives/fall2008/entries/weber (Accessed 10
September 2011).

LA110: Law and Society 7.6

Currently abortion is not legal in Vanuatu (section 117 of the Penal Code [Cap
135]) although there is a defence is the abortion has been provided ‘for good
medical reasons’.

Research estimates that 76 out of 1,000 pregnancies in Vanuatu are unwanted.

(Elissa C Kennedy et al, ‘The case for investing in family planning in the Pacific:
costs and benefits of reducing unmet need for contraception in Vanuatu and the
Solomon Islands’ (2013) 10 Reproductive Health 30
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3700798/ ) Whilst there are no
statistics on illegal abortions, it is also known that illegal abortions post a health
risk to women.

‘As abortion is illegal in Pacific Island countries women with an unwanted

pregnancy can often be forced to practice unsafe abortion, either self-induced
or induced by untrained individuals. This can result in sepsis of the uterus and
birth canal, haemorrhage, uterine perforation, cervical trauma and may cause
infertility and chronic illness.’ (SPC Brochure, Teenage Pregnancy
http://www.spc.int/ahd/index.php?option=com_content&view=article&id=96
:brochure-teenage&catid=51:asrh-information&Itemid=72 )

News stories indicate that unwanted pregnancy is a particular issue for young
mothers and unmarried women. For instance:

 in 2013 it was reported that a student at Talua Bible College dumped her
new-born baby in a bush toilet. The baby died. (Godwin Ligo, ‘Student
Dumps Baby in Bush Toilet’ (Vanuatu Daily Post Online, 9 September
2013, http://www.dailypost.vu/content/student-dumps-baby-bush-toilet
link no longer active).
 in 2010 it was reported that an 18 year old had killed her new-born baby.
The baby was the result of incest and two similar cases had also occurred
that year. (Colson Wari, ’18 year old mother faces court for killing baby’
(Vanuatu Daily Post Online, 19 November 2010,
http://www.dailypost.vu/content/18-yr-old-mother-faces-court-killing-
baby link no longer active).
 in 2013 a project was set up in Port Vila to help with the increasing
problem of unwanted babies (Geraldine Coutts, ‘Vanuatu project to give
unwanted babies a second chance’ (Radio Australia, 19 July 2013,
http://www.radioaustralia.net.au/international/radio/program/pacific-
beat/vanuatu-project-to-give-unwanted-babies-a-second-
chance/1163586).

There are also many cases of infanticide in Vanuatu. See, for instance:

 Public Prosecutor v Muluan [2011] VUSC 276 http://www.paclii.org/cgi-

bin/disp.pl/vu/cases/VUSC/2011/276.html Unmarried 29 year old
abandoned newborn in bushes. The baby’s father did not stand by her and
she was too ashamed to tell her parents. The infant was found and
survived.
 Public Prosecutor v Massing [2011] VUSC 1 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUSC/2011/1.html Unmarried 23 year old suffocated

LA110: Law and Society 7.7

 her newborn. She did not want to place a burden on her family who could
not afford another child. One problem was that she had no support from
family or communities. She also had no knowledge of contraception.
 Public Prosecutor v Navue [2010] VUSC 116 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUSC/2010/116.html 22 year old abandoned
newborn that died. She was scared of the reaction of her father so hid her
pregnancy. She attempted suicide after giving birth.
 Case in this article is probably Malvaru v Public Prosecutor [2011]
VUCA 34 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUCA/2011/34.html The mother had been kept as
her father’s ‘sexual slave’ since she was 12, and had had 3 pregnancies.
Two of them resulted in the newborn being killed. Her father threatened
to stab her if she talked to anyone about her pregnancy. Her father also
gave her traditional medicine to try to end the pregnancy.
 Public Prosecutor v Nato [2005] VUSC 7 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUSC/2005/7.html 19 year old unmarried
unemployed mother, with year 6 education. Her boyfriend pressured her
to have sex and she was ashamed. She hid her pregnancy and tried to end
it. She strangled and killed her newborn. After giving birth she was
suicidal.
 Public Prosecutor v Banga [2004] VUSC 21 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUSC/2004/21.html 21 year old unmarried mother,
USP Foundation student. She hid her pregnancy from her family and tried
to end it before the baby was born. She strangled her newborn.
 Public Prosecutor v X[1995] VUSC 12 http://www.paclii.org/cgi-
bin/disp.pl/vu/cases/VUSC/1995/12.html 17 year old unmarried woman.
Abandoned by the baby’s father. She was too scared to tell her parents.
She killed her newborn.

In 2014 the Vanuatu Family Health Association launched a study into the issue of
unsafe abortions and considers that there needs to be dialogue to reform the law.

 http://www.abc.net.au/news/2014-06-21/vanuatu-health-workers-
worried-about-increasing-abortion-rat/5533848
 http://dailypost.vu/news/unsafe-abortion/article_9c5c4f12-c9d3-5810-
8cb3-ebc167bb0c16.html

STUDY TASK 4

1. Having looked at this information do you think unwanted pregnancy and

unsafe abortions are real issues in Vanuatu that needs to be dealt with?
Why/why not?

2. What policy options do you think there are to responding to this option?

LA110: Law and Society 7.8

Analysing proposed law reform
There are 3 main step to go through in analyzing proposed laws:

1. What is the point of the Bill/what problem is it trying to address?

a. Do you agree that this is a problem that the law should address?

2. Does the Bill address the problem? What arguments for and against the
Bill are there?
a. Do you agree with the law or not?
b. Do some things need to change before you agree with the law? If
so, what?

3. Are all the words clear? Do they reflect what should be in the law?
a. Do some things need to change before you agree with the law? If
so, what should be changed?

Step 1: Big picture

Step 2: General
content
Step 3:
Specific
content
Opinions should be based on accurate facts and information and careful thinking.

STUDY TASK 5

1. Read the Bill for the Penal Code (Amendment) Act No. 1 of xxxx (on
moodle) Note: this is not a real Bill. I drafted it in 2013 for the Vanuatu
Youth Parliament.
2. What problem is the Bill trying to address?
3. Referring back to your answer for study task 4, do you agree this is a
problem? (step 1)
4. What problems for and against the general content of the Bill can you
identify? (step 2)
5. Are there any problems with the clarity of the language of the Bill? (step
3)
6. Having looked at the feedback and re-analysed the law, if you need to, are
you going to vote in support of the Bill?

LA110: Law and Society 7.9

 Check Feedback 4 when you have done questions 1 to 5

Conclusion
Law, justice, morals, ethics – they are difficult concepts and all interrelated.
Clearly they affect our views of what the law is, what the content of the law
should be, and what ideal behaviour is. There are no right answers – but
hopefully you now have some broader perspectives to help with thinking
critically about issues. You also should have some frameworks to help you think
about issues. Hopefully you find this material interesting. Hopefully you also find
it challenging and thought-provoking. Hopefully it will also help you to be able
to contribute more fully to debates on legal developments in your country.

STUDY TASK 6

To practice thinking about issues of law, justice, morality, and legal policy in real
life you should be reading the newspaper.
1. Every day try to find one interesting news story that causes you to have a
moral reaction because you think it is unfair, or because you think it
shows good legal developments.
2. Then go back and analyse your immediate moral reaction using reason.
You might identify ethical principles that you think are being violated.
You might identify a particular policy problem in your country that you
think the law either is not dealing with, or is dealing with well.
3. Practice by writing your answers and sharing them on the assessed news
items forum. & practice by reading and commenting on other people’s
answers.
HINT: I cannot give you an exact framework for analyzing news stories because
they will all require different approaches. Sometimes you will find that you can
use IRAC in your reasoning. Sometimes IRAC will not fit. Remember, though, to
always try to look from different perspectives. Putting yourself into someone
else’s position (ie, imagining you are 19 year old girl with an unwanted
pregnancy when you are thinking about abortion) is always useful.

LA110: Law and Society 7.10

Feedback
Feedback 1

There are no right answers here. Just remember to try to look at this question
from different perspectives. Even if you think the question has one clear answer,
try to think what people who would disagree with your answer might argue. Then
identify ways to counter, or argue against, these arguments. You may also want
to try to apply IRAC:

Issue The issue is people have a moral obligation to obey the law even
if they think it is a bad law? (the question in the study task)
Rule(s) You should try to identify some general ethical principles here,
along with an indication of how you derived your ethical
principle. For instance you might say that:

 People should not be allowed to pick and choose which

laws to follow in order to avoid chaos (this is affected by
a positivist view)
 If man-made laws do not align with religious views then
they are not good laws and do not need to be followed (a
natural law theory view)
 If society as a whole disagrees with the content of a law
then it should not be treated as binding as the law-makers
have failed to respect the wishes of the people (this is
influenced by a sociological viewpoint as well as beliefs
about how, politically, the law-making process should
occur)

You should try to identify competing ethical rules, as this will

ensure you are thinking critically and not jumping to a
conclusion without taking into account different perspectives.
Application Your application will depend on your rules. You may well have
some competing rules, so your application should try to balance
out the competing interests, and provide arguments to support
what you think to be the most important ethical principal.
Conclusion Summaries your final outcome.

Feedback 2

When I was admitted in New Zealand I had friends who were not immediately
admitted due to having criminal records or having been involved in political
agitation. However, once they worked for a couple of years with clean records
then they were admitted. In Australia one man had his admission delayed for 6
months because he had been caught plagiarising as a law student. The judge did
not want someone who had been caught acting dishonestly to become a lawyer
immediately.

LA110: Law and Society 7.11

Being of good character is important for lawyers, and in topics 1 – 4 you should
have reflected on what this means for you. This is not legal thinking. It is about
moral and/or ethical thinking.

Feedback 3

When you answer question 1 try not to jump to a moral conclusion. Instead try to
use IRAC to think about general ethical rules that you think could exist and then
develop an argument for which ethical rule you think should apply.

Feedback 4
This is a very controversial issue and there are no right answers. This table should
help you to think through step 3. Try reorganizing your arguments into a table
with pros and cons and see if it helps your reasoning to become more thorough,
or deeper, or more critical. Remember as a policy maker you need to be able to
look at the issue from all perspectives.

Argument For/against Issues with argument What do

the Bill you think
Allows women to access For But this might be seen as
safe medical treatment to legalising killing unborn babies.
end unwanted pregnancy
rather than using unsafe
abortion methods or
abandoning/killing newborn
babies.
Permits killing unborn Against Is a foetus that cannot survive
babies outside the mother’s body a baby
yet?

Until about 24 weeks the foetus

cannot survive outside of the
mother, so is not a separate
person.
Vanuatu is ‘a nation founded Against Not all Christians believe that life
on the belief in God and a begins at contraception.
Christian nation that believe
in the sanctity of life, at Vanuatu is a secular state where
whatever stage the life may no one’s religious beliefs should
be.’ (Judge in PP v X case) be forced on others.

Vanuatu is also founded on

Melanesian custom, which does
allow abortion (as shown by
custom medicine to cause
abortion)
Women should have the For But a woman’s right to choose
right to choose whether to has to be balanced against other
have a baby, and to control rights, including the rights of
what happens with their unborn children
bodies

LA110: Law and Society 7.12

 There will be fewer For Other support services for
unwanted children, who unwanted children could be set
are more likely to face up. For instance, in America,
hardships (poverty, lack unwanted babies can be left at
of education, ‘safe havens’ (usually police
healthcare, care) as they and fire stations) with no
are unwanted consequences. They are then
found other homes.

But – given the small size of

Vanuatu it will be hard to do
this anonymously. There will
still be shame and stigma for
the mother, and maybe for the
child.

Where will resources to do this

come from?
Allows pressure of For Same arguments as above.
having more children
on individuals and
families who may
already be suffering
hardship to be
controlled
It is better to provide Against But family health services in
sexual health education Vanuatu are not good. Vanuatu
and contraceptives to Family Health Association
stop unwanted estimates ‘about 75% of youth
pregnancy in the first living in Vanuatu today do not
place get sexual health education’

Custom and religion can

prevent access to
contraceptives

Endemic family violence can

reduce access to contraceptives

Improving sexual health

education is not going to stop
all unwanted pregnancies

It not a case of either one or the

other. You can legalise abortion
and improve sexual health
education.

LA110: Law and Society 7.13

 Words Possible issues What do you
think?
Occur before the At what age does a “foetus” become an “unborn
foetus is 20 weeks, child”? Is it earlier? Or later? From about 24
unless the life of the weeks a very prematurely born infant can survive
mother is at risk if given intensive medical care
Be performed in a This means abortion by custom/traditional
hospital or approved medicine in a custom setting is not allowed. Is this
medical facility a problem, or a good thing?

At early stages abortion can be done by giving a

tablet. Why would this need to be done at a
hospital? Or could there be a wider range of
approved medical facilities for giving tablets?

Who is going to approve medical facilities? How

will this be done?
Be approved by two Why are two doctors needed, particularly as some
independent doctors medical facilities may not have doctors

Should a broader range of people (such as

community health workers) be able to approve
abortions?
Continuation of the Is this too broad? Should it only be for physical or
pregnancy would pose mental health? Or is being broad good – as
a serious threat to the financial, family and educational wellbeing is just
woman's physical, as important as other sorts of wellbeing?
mental, educational,
family or financial
wellbeing
The result of incest or In Vanuatu there is no crime of rape, there is
rape unlawful sexual intercourse and unlawful sexual
intercourse without consent. Should the word rape
be changed?
The foetus is impaired What does impaired mean?

Be approved by the Does this interfere with a patient’s right to medical

woman’s parents or confidentiality?
guardians in the event
that she is under 16 Many young mothers are scared to tell their
years of age. parents. If parental consent is needed does it mean
that young mothers are not going to be able to get
abortions if they need them?

LA110: Law and Society 7.14