https://kumu.tru.ca/api.php?action=feedcontributions&user=Leongs13&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-29T11:26:48ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Positivism&diff=4665Course:Law3020/2014WT1/Group M/Positivism2014-03-27T05:16:47Z<p>Leongs13: </p>
<hr />
<div>Legal positivism can largely be seen as a reaction to the central tenants of the natural law theory. Positivism is based on the proposition that law is separate from morality; therefore "positive law" is generally defined in negative terms, by what it is not. For this reason, it is perhaps not surprising that different positivist thinkers have proposed very different definitions for what positive law is:<br />
<br />
'''John Austin'''<br />
<br />
<div style='float:right;'>http://chartercases.com/wikipictures/john-austin.jpg</div><br />
<br />
For John Austin, the validity of a law is empirically provable. Positive law constitutes a command, issued by superiors to subordinates, and backed by sanctions. The superior, or sovereign, may be an individual (such as a monarch) or an aggregate body (such as Parliament). In order to be a sovereign the individual or body must command obedience from the bulk of the given society. A judicial decision maker, although not the sovereign, derives its authority from the sovereign. Under Austin's positivist legal theory, judicial decision makers may interpret and apply law and even create law so long as it does contradict positive law as expressed by the sovereign. Although the decision in ''Hodgkinsons v. Simms'' is based on the common law as opposed to written legislation, the development of common law regulations is not inconsistent with Austin's theory of legal positivism.<br />
<br />
However, the fiduciary duty described in ''Hodgkinsons v. Simms'' does not take the form of law articulated by Austin, as it is not a "command" followed by "sanctions". Instead it is a civil regulation of commercial relationships between private actors. The law is expressed by the Supreme Court is an awkward fit with Austin's positive law, as it is regulatory and descriptive in nature as opposed to a command which must be followed on pain of punishment by the state. The fiduciary duty articulated in this case may actually be a better fit with Austin's concept of "positive morality" as it appears to be an example of how the judicial decisions makers believe people in commercial relationships should act. In addition, the fiduciary duty in this case arises in part from the professional standards imposed on accountants. These are perhaps more akin to "club rules" (a type of positive morality) than they are to positive law ''per se''.<br />
<br />
'''H.L.A. Hart'''<br />
<br />
<div style='float:left;'>http://chartercases.com/wikipictures/hla-hart.jpg</div><br />
<br />
Another positivist thinker, H.L.A. Hart, breaks positive law down into primary rules (which tell us what we can and cannot do) and secondary rules (rules by which we can change the rules, adjudicate disputes about the rules, and figure out what the rules are). The law that stems from the instant case describes fiduciary liability and thereby is a primary rule as it tells a certain class of people (accountants) what they can and cannot do.<br />
<br />
For Hart, the rule of recognition requires that positive law must be recognized by officials, it must be consistently applied, and those that apply the law must believe in its application. Hart sees laws as more than just commands, and believes that those applying the laws must also believe that the laws are just. With regard to the instant case there has been much jurisprudence upholding fiduciary duties in the professional context, suggesting those who apply such duties also believe in them. Fiduciary duties are a well established principle of many professional organizations, and are accepted and obeyed by the vast majority of accountants and other professionals. On this basis, the common law fiduciary duty described in ''Hodgkinsons v. Simms'' fits much more comfortably with Hart's conception of positive law than with Austin's.<br />
<br />
In short, Hart's theory provides us with a more flexible approach as to what constitutes law. Austin's theory focuses almost entirely on a specific form of law (i.e. a command followed by a sanction), and is really only applicable to criminal and regulatory restrictions imposed on individuals by the state. Hart's theory, on the other hand, encompasses any generally accepted rule for how individuals are expected to behave. Many of the rules and regulations which Austin might define as mere "positive morality" (including the fiduciary duty arising in ''Hodgkinsons v. Simms'') would fall within Hart's more flexible and expansive definition of "positive law".</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2809Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T16:05:02Z<p>Leongs13: </p>
<hr />
<div><br />
=== Overview: ===<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
http://nyulocal.com/wp-content/uploads/2012/01/rosie_the_riveter_poster-r3091783638ae408994a605de333dcf99_wi4_400.jpg<br />
=== Various Feminist Theories: ===<br />
<br />
==== Liberal Feminism: ====<br />
<br />
Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
<br />
==== Radical Feminism: ====<br />
<br />
Challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
==== Marxist Feminism: ==== <br />
<br />
Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
<br />
==== Postmodern Feminism: ====<br />
<br />
Rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
<br />
==== Relational Feminism: ====<br />
<br />
celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
=== Application to the Case: ===<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2808Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T16:04:36Z<p>Leongs13: </p>
<hr />
<div><br />
http://nyulocal.com/wp-content/uploads/2012/01/rosie_the_riveter_poster-r3091783638ae408994a605de333dcf99_wi4_400.jpg<br />
<br />
=== Overview: ===<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
==== Liberal Feminism: ====<br />
<br />
Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
<br />
==== Radical Feminism: ====<br />
<br />
Challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
==== Marxist Feminism: ==== <br />
<br />
Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
<br />
==== Postmodern Feminism: ====<br />
<br />
Rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
<br />
==== Relational Feminism: ====<br />
<br />
celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
=== Application to the Case: ===<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2807Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-24T16:03:04Z<p>Leongs13: /* Separation Thesis, Hart and Fuller */</p>
<hr />
<div>== Separation Thesis, Hart and Fuller ==<br />
<br />
:http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
:<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
=== '''Role of Judges''' ===<br />
http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2806Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-24T16:02:34Z<p>Leongs13: /* Separation thesis, Hart and Fuller */</p>
<hr />
<div>== Separation Thesis, Hart and Fuller ==<br />
<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
=== '''Role of Judges''' ===<br />
http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2805Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-24T16:01:54Z<p>Leongs13: </p>
<hr />
<div>== Separation thesis, Hart and Fuller ==<br />
<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
=== '''Role of Judges''' ===<br />
http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2709Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:31:12Z<p>Leongs13: </p>
<hr />
<div><br />
=== Overview: ===<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
==== Liberal Feminism: ====<br />
<br />
Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
<br />
==== Radical Feminism: ====<br />
<br />
Challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
==== Marxist Feminism: ==== <br />
<br />
Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
<br />
==== Postmodern Feminism: ====<br />
<br />
Rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
<br />
==== Relational Feminism: ====<br />
<br />
celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
=== Application to the Case: ===<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2708Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:29:13Z<p>Leongs13: </p>
<hr />
<div><br />
=== Overview: ===<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
==== Liberal Feminism: ====<br />
<br />
Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2707Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:28:49Z<p>Leongs13: </p>
<hr />
<div><br />
=== Overview: ===<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
==== Liberal Feminism: ====<br />
Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2706Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:28:11Z<p>Leongs13: </p>
<hr />
<div><br />
== Overview: ==<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
Liberal Feminism: Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2705Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:27:45Z<p>Leongs13: </p>
<hr />
<div> == Overview ==<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
Liberal Feminism: Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2704Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-24T00:27:18Z<p>Leongs13: </p>
<hr />
<div>== Overview<br />
==<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
=== Various Feminist Theories: ===<br />
<br />
Liberal Feminism: Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence&diff=2657Course:Law3020/2014WT1/Group M/Feminist Jurisprudence2014-03-23T04:57:11Z<p>Leongs13: Created page with "Overview Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism..."</p>
<hr />
<div>Overview<br />
<br />
Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.<br />
<br />
Various Feminist Theories:<br />
<br />
Liberal Feminism: Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or unvalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.<br />
Radical Feminism: challenges legal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focusses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.<br />
<br />
Marxist Feminism: Focusses on the oppression of women under the capitalist system and the devaluation of domestic work.<br />
Postmodern Feminism: rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.<br />
Relational Feminism: celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.<br />
<br />
Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories is in applicable. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between an investor and their client is analogous to that of a mother and a child. A fiduciary relationship protects and nurtures the relationship for the benefit of both parties.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M&diff=1688Course:Law3020/2014WT1/Group M2014-02-28T18:52:36Z<p>Leongs13: </p>
<hr />
<div>[[Course:Law3020/2014WT1/Group_M/Introduction]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Critical_Legal_Studies_Critical_Race_Theory]]</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M&diff=1686Course:Law3020/2014WT1/Group M2014-02-28T18:51:29Z<p>Leongs13: </p>
<hr />
<div>[[Course:Law3020/2014WT1/Group_M/Hodgkinson v Simms]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Critical_Legal_Studies_Critical_Race_Theory]]</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M&diff=1685Course:Law3020/2014WT1/Group M2014-02-28T18:51:10Z<p>Leongs13: </p>
<hr />
<div>[[Course:Law3020/2014WT1/Group_M/Hodgkinson v Simms]]<br />
[[Course:Law3020/2014WT1/Group_M/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Feminist_Jurisprudence]]<br />
<br />
[[Course:Law3020/2014WT1/Group_M/Critical_Legal_Studies_Critical_Race_Theory]]</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1395Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:37:37Z<p>Leongs13: </p>
<hr />
<div><br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1394Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:37:16Z<p>Leongs13: </p>
<hr />
<div><gallery><br />
File: http://blog.lib.umn.edu/paldr001/myblog/devil%2Band%2Bangel%2Bhomer2.jpg|Law and Morality?<br />
<br />
</gallery><br />
<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1393Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:34:27Z<p>Leongs13: </p>
<hr />
<div> The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1392Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:34:04Z<p>Leongs13: </p>
<hr />
<div> The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1391Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:33:02Z<p>Leongs13: </p>
<hr />
<div><br />
<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1390Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:30:13Z<p>Leongs13: </p>
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The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
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Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=1389Course:Law3020/2014WT1/Group M/Separation Thesis2014-02-17T22:21:25Z<p>Leongs13: Created page with " The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run para..."</p>
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<div> The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Leongs13