Exploring Pivotal Legal Concepts In An Essay.

Logical fallacy and its types

Part A

1.Explain the term ‘logical fallacy’.  In your answer, discuss the difference between a fallacy of relevance and a fallacy of evidence, citing one example of each type of fallacy which might occur in legal argument.

Students should refer to the Week 1 Basham reading. The answer should cover:

A definition of logical fallacy: an argument which contains a mistake in reasoning.
A definition of fallacy of relevance:  Fallacies of relevance are mistakes in reasoning that occur because the premises are logically irrelevant to the conclusion.
An example of a fallacy of relevance in law: bandwagon ‘Everybody believes that our criminal justice system is in dire need of reform’
A definition of fallacy of evidence: Fallacies of insufficient evidence are mistakes in reasoning that occur because the premises, though logically relevant to the conclusion fail to provide sufficient evidence to support the conclusion.
An example of a fallacy evidence in law: slippery slope: this is often one used in case law to deny the development of a particular area of law.  Students need to consider the following when they see this argument in case law: is it really correct that making a decision to expand the law in this case would 'open the floodgates'?  It may do so, but the arguer would need to explain why. 

2.Define liberalism.  In your answer, outline some common features of classical liberalism, and explain why it is important to critically analyse liberal idea.

Students should refer to the Week 2 readings from the Textbook, and also the reading from Bottomley and Bronnitt, part of which was done as required reading prior to class in Week 2, and part of which was done in class in Week 3.  Answers should include:

A definition of liberalism
An outline of at least 3 aspects of classical liberalism
An explanation that critical analysis identifying and questioning assumptions made in arguments, and that it is important to critically analyse liberal ideas because they pervade the Western legal tradition, and can sometimes be portrayed as natural, rather than socially and historically contingent. See esp Bottomley and Bronnit p 2 for a summary of why it is important to critically analyse liberal ideas.

3.Briefly outline the history of the development of the British parliamentary system.  Explain one way in which key principles from English law are embedded in the Australian legal system. (4 marks)

 Students’ response to this question should draw on their Week 7 in-class notes on the following reading: 
Cook, Catriona et al, Laying Down the Law (LexisNexis, 9th ed, 2015), Ch 2. 
It should include reference to the following developments: 
The Magna Carta and the first Parliaments 
Reformation and Parliament during the Tudor period 
The English Civil War 
The Bill of Rights 1689 
The Act of Settlement 1701 
Some of the key principles from English law embedded in the Australian system include, and which could be discussed here are: 
The rule of law 
Separation of powers 
Responsible government 
Parliamentary sovereignty (noting the role played by the Australian High Court in interpreting the Constitution).  
Students should briefly outline the aspect that they choose to discuss. 

4.Outline the developments which have occurred both at common law and in legislation concerning Indigenous rights to land in Australia.

Students should refer to the Week 10 Textbook readings, and also their summary of the Mabo decision from the in-class exercise in Week 8.  Answers should discuss:

The materials in the Textbook pp 389-401;
The recognition of native title in Mabo

5.Head , Mann and Mathews claim that 'legal positivism' is so pervasive in legal education that it is invisible.  (Michael Head, Scott Mann and Ingrid Matthews, Law in Perspective: Ethics, Critical Thinking and Research (UNSW Press, 3rd ed, 2015), pp 1-12).  Define positivism.  According to the authors, what are some of the consequences of the pervasiveness of legal positivism for legal education and the practice of law?  (4 marks)

Students should refer to the Week 1 materials, and also the Week 2 readings on positivism.  Answers should include:
A definition of positivism
A discussion of the argument of Head et al that the tradition of positivism in the Western legal tradition is not made explicit to students (ie it is just 'a given').  They claim this denudes law students (and later lawyers) of the ability to think about law in any other way.   This Unit has been all about getting students to think about law from a number of different perspectives.

Part B

t is a busy Monday morning at the law firm where you have just commenced work as a paralegal. The partner supervising your work has received instructions from a client who needs some advice about the Tobacco Plain Packaging Act 2011 (Cth) ('the Act'). She has done some initial research, and found the following sources:

Question 1

The definition of logical fallacies states the modes where the rules of logic are neglected, people can often fall into inaccurate and invalid reasoning (Stanford Encyclopedia of Philosophy,2015). It is “an error in reasoning” and not error of facts. Fallacies of relevance are the attempts made for proving a conclusion by making consideration offers which do not bear any kind of truth. An example is personal attacks which is an attempts made with the intention of discrediting an opinion by further discrediting the person that holds that opinion (Yap, 2013). Fallacy of evidence, also called argument from ignorance, is the assumption of a fact or conclusion that is based on lack of evidence (Gee, 2010). It is also described as “absence of evidence is not evidence of absence”. For instance, there are many things in the world which cannot be proven. One of them can be filling the moon with spare ribs. A reasonable person would realize that such a thing is not possible.

Liberalism is the ideology of cultural, economic and governmental equality and liberty (Bell, 2014). It is considered “left-wing”. In political terms, liberalism means the ideology of concepts such as legal rights, the use of reason, tolerance, freedom of speech, thought, worship and association, basic civil liberties and rights, appreciation of mixed-democracy and separation of the powers of government (Bell, 2014). There are certain features of classical liberalism. It absolutely focuses on the supreme form of interests of individuals or individualism (Brennan &Tomasi,2012). Every individual is treated a separately who seeks at maximizing his interests energetically. Classical liberalism argues for independent activities in the field of economics (Brennan &Tomasi,2012). It implies that imposition of restrictions upon the various economic activities of people would not be the government’s policy. Another hallmark feature is negative freedom (Brennan &Tomasi,2012). For the all-round development of people’s qualities, it would be reasonable for them to be left alone. Critical analysis of liberal ideas is important for building emotional bonds and developing clarity, precision, accuracy, relevance, consistency, and reasons.

UK’s legislative body is its Parliament and is the primary institution that makes the law in it’s constitutional monarchy. The legislative body’s history meets in the Westminster’s Palace in London, showing its organic evolution that was partly in response to UK’s reigning monarch’s needs (Jones,2012). The Parliament traces back to the early meetings of English commoners and barons of eighth century. It traces back from eighth century’s Anglo-Saxon governments. The first English parliament was summoned in 1215, with the creation of the Magna Carta, which brought the establishment of the barons’ (wealthy landlords) rights for serving as consultants to the king on matters of government in the king’s Great council(Jones,2012). From 1603 to 1660, UK was involved in a civil war, where Oliver Cromwell was the military leader and held the title of the Lord Protector. In 1649, the ruling monarch, Charles I was executed(Jones,2012).

The last two centuries of the Australian history have been contributed by property developers who are on an unloved entrepreneurs’ class (Milsom, 2014). From the time of the High Court’s judgement of Australia in the Mabo vs Queensland case, contemporary Australia’s attention has been captured by indigenous legal issues like never before (Weir, 2012). The history of Australia on which it was raised, proceeded on the basis of contingent indigenous rights, as to both over-rule and recognition by the Crown, was shaken by the disclosure that jurisprudence common law has recognized indigenous rights many centuries ago which has arisen from a deep-rooted source which was outside the common law. The native title act has brought about changes in the common law by giving rights to oppressed and the neglected class who have suffered heavily in the past. Discriminations were created before, but now all are eradicated.

Features of Classical liberalism

Positivism is a philosophical system which only recognizes the things which can be verified scientifically or that are capable of mathematical or logical proof (Hart, 2017). Hence, positivism is considered to reject theism and metaphysics. It is a philosophical theory which implies that specific kind of knowledge is based on certain natural phenomena and their relations and properties (Hart, 2017). It can be said that according to positivism, law is a social construction and not invisible in the legal parlance as commented by Head. It is not claimed by legal positivism that the identified laws should be obeyed or followed, or that there is specific value in having identifiable and clear rules (Raz, 2013). In fact, the state can sometime be illegitimate and the legal system’s laws can be unfair. Consequently, there may be no liability for these laws to be followed.

The Australian government is aiming to decrease the usage of tobacco and form a statute with this regard to make the make the people aware of the dreadful effects of smoking. The packing of tobacco products would be altered with warning signs (Wier, 2012). The aim of the government is to reach a goal under COAG national Healthcare Agreement to decrease the smoking rate by 10%. The reason of the tobacco lain packaging act of 2011 is to the reduce the attraction of packaging and the attraction of the customers to it (Scollo et al., 2015). The aim is under to under the ill effects on health by reading the warnings and further to abstain from it. These aims would also contribute towards the statistics of the world health organization. The aim to protect the public health is of utmost importance.

The case of Walker v R took place between Walker and the state of New South Wales (1994) HCA 64; 182 CLR 45. The facts stated that the plaintiff was an indigenous person who charged with a criminal offence under law of NSW (Fookes & Gilmore, 2014). The place of occurrence was Nimbin under the Bandjalung area possessed by indigenous people.  It was questioned whether the statute applied to people to the extent to which it was applied. The issues arose that whether the NSW legislature were empowered to make laws for the welfare of the NSW people. Whether it could be applied to specific inhabitants of NSW. It was decided by the judge Manson CJ that the rule of law states that all person are equal. There must be a uniform common criminal law for all.

References

Bell, D. (2014). What is liberalism? Political Theory, 42(6), 682-715.

Brennan, J., & Tomasi, J. (2012). Classical liberalism. The Oxford Handbook of Political Philosophy, 115.
Stanford Encyclopedia of Philosophy, (2015). Support SEP. Fallacies. [online]Retrieved from: <https://plato.stanford.edu/entries/fallacies/>

 Brown, D., Farrier, D., Egger, S., McNamara, L., Steel, A., Grewcock, M., & Spears, D. (2011). Brown, Farrier, Neal and Weisbrot's Criminal Laws: materials and commentary on criminal law and process in New South Wales

Fooks, G., & Gilmore, A. B. (2014). International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership. Tobacco control, 23(1), e1-e1.

Gee, J. (2010). Egyptologists’ fallacies: fallacies arising from limited evidence. Journal of Egyptian History, 3(1), 137-158.

Hart, H. L. A. (2017). Positivism and the Separation of Law and Morals. In Law and Morality (pp. 63-99). Abingdon: Routledge.

Jones, C. (Ed.). (2012). A Short History of Parliament: England, Great Britain, the United Kingdom, Ireland and Scotland. Boydell Press.

Milsom, S. F. C. (2014). Historical foundations of the common law. Butterworth-Heinemann.

Raz, J. (2013). Legal positivism and the sources of law. Arguing About Law, 117.

Scollo, M., Lindorff, K., Coomber, K., Bayly, M., & Wakefield, M. (2015). Standardised packaging and new enlarged graphic health warnings for tobacco products in Australia legislative requirements and implementation of the Tobacco Plain Packaging Act 2011 and the Competition and Consumer (Tobacco) Information Standard, 2011. Tobacco control, 24(Suppl 2), ii9-ii16.

Weir, J. K. (2012). 1. Country, Native Title and Ecology1. country, native title and ecology, 1.

Yap, A. (2013). Ad hominem fallacies, bias, and testimony. Argumentation, 27(2), 97-109.