Jurisprudence Ordinary Whole Course Notes 2022/2023
fully annotated notes from every lecture in the course.
What is Jurisprudence?, H.L.A Hart, Analytic Jurisprudence, Normative jurisprudence, conceptual analysis, Legal Positivist theories of law, John Austin’s ‘command’ theory, and HLA...
Introduction & Methodology
Friday, 27 August 2021
18:29
Jurisprudence (Ordinary) 2021/22
Lecture 1 handout – What is Jurisprudence?
Reading for lecture 1:
Essential reading – please read at least one of the following:
Bix – chapter 1;
Ratnapala – chapter 1;
Penner & Melissaris – chapter 1;
Simmonds – ‘Introduction’ (pp. 1-8); or
Freeman – chapter 1.
Recommended reading:
• Hart – chapter 1.
NB: the books referred to in the general course handout will be abbreviated as above.
Lecture summary:
Jurisprudence: the theory of law, legal theory.
o Jurisprudence has more than one meaning; can also be known as body of
precedents
Jurisprudence attempts to ask and answer theoretical questions about law (as
opposed to, say, doctrinal legal questions).
Jurisprudence is sub-divided into three types:
— Analytic (or ‘general’) jurisprudence: seeks to identify the necessary and the
characteristic features of laws and of legal systems.
— Normative jurisprudence: looks at the purpose and value of law; and
— Special jurisprudence: asks theoretical questions about particular areas of law
(criminal law, contract law, delict law, international law, and so on).
Course:
o Part 1: analytical jurisprudence: will focus on the relationship between law
and morality.
o Part 2: normative jurisprudence
Questions of analytic jurisprudence include:
what makes legislation law? Arguably only law if it passes a moral test
what determines the content of legislation?
how do we resolve disputes about the content of legislation?
And questions of normative jurisprudence include:
Is a particular legal provision a good law or a bad law?
Are we under a duty to comply with laws (even if they are morally bad)?
Would we be better off if we just didn’t have any laws at all?
, Jurisprudence is a contested subject:
legal theorists very often disagree about the answers to these questions.
o often disagree over how to go about trying to answer them.
o This course is designed to get you thinking about these questions — and how
they might be answered — and, deepen your understanding of what laws are
and what legal systems are.
o You should form our own views about these questions — and not only have
an opinion on them but to back it up with reasons.
We’ll be learning about the work of several famous legal theorists — such as Austin,
Hart, and Marx — widely considered to have made important contributions to our
theoretical understanding of law.
o don't treat these famous legal theorists as telling us the correct answers; they
aren't authorities like statutes or precedent
Your approach to the reading in Jurisprudence should be critical.
two different kinds of question:
o ‘substantive’ question: question about the right answer to a problem.
E.g, what is the relationship between law and morality?
o ‘exegetical’ question: what a particular person thought about that problem.
o E.g. what did HLA Hart think is the relationship between law and morality?
Legal theorists argue about both types of question — and it is vital to distinguish
them.
Part 1 of the course:
Lecture 2: how to go about doing analytical jurisprudence, and ‘conceptual analysis’.
Weeks 2 and 3: examine some Legal Positivist theories of law, including John Austin’s
‘command’ theory and HLA Hart’s theory of law (and his key notion of a ‘Rule of
Recognition’).
In weeks 4 and 5, we’ll look at theories of law which challenge or reject Legal
Positivism – including Natural Law Theory (believes there is an intimate connection
between law and morality and that immoral laws are defective laws) and the work of
Lon Fuller and Ronald Dworkin. In week 6, we’ll look in detail at Dworkin’s challenges
to legal positivism and how legal positivists have responded to them.
In week 7, we move into Part 2 of the course – which concerns normative
jurisprudence. are obliged to comply with the law and, if so, where that obligation
comes from ? when law-abiding citizens might be justified in refusing to comply with
an unjust law: when we might need to engage in civil disobedience.
In week 8, legal sociology and anthropology. examine what role the law, and legal
systems, can play in creating and preserving a society — including law’s role in
helping us move from smaller, more primitive, societies to our larger and more
sophisticated modern societies. Turning to legal anthropology, we’ll consider how
we might study the ways and customs of more primitive societies to judge whether
they have laws or a legal system. And we’ll also look at the work of Karl Marx, who
famously criticised law as an institution that is used to preserve the wealth of the
wealthy, and who suggested that we should abolish law.
, In week 9, how Marxist thought has evolved over the last century into what is often
called Critical Theory. The idea here is that we need to look beyond how law appears
in the law books and examine how law actually functions in society. ]examine the
claims of the Critical Legal Studies (or CLS) movement that the law in the books is
radically indeterminate: that judges cannot decide cases according to law, because
there is no such thing as deciding a case according to law. Instead, according to CLS,
the law in the books disguises what is really going on — which is that legal
institutions are being used to make injustice and inequality seem more acceptable.
We’ll also look at specific areas of Critical Theory, such as Feminist Legal Theory and
Critical Race Theory.
examine less radical version of the claim that laws are indeterminate: American Legal
Realism (or Legal Realism ). The basic idea here is that judges don’t always decide
cases purely on the basis of legal reasons; instead, judges are human beings and they
naturally decide some cases at least partly on the basis of factors other than what
the law says — such as who they think ought morally to win, or maybe even just
depending on whether they are in a good or a bad mood. Legal Realism is a very
popular theory with legal practitioners, and in particular with litigators – who
frequently deal with judges and courts.
In week 10, discussing the important connection between law and language. Laws
are made out of language – made out of words, phrases, and sentences. But how do
we get from Parliament enacting certain words to someone being made bankrupt, or
being evicted from their home, or being locked up in prison? The simple answer is
that words have meaning and that we can use words to express a content that can
then be applied to facts in the world. what should happen when laws, some of which
were made a long time ago, are expressed using words that have changed in
meaning since those laws were made.
Last lecture: answering exam questions.
Exercise (to be completed before watching lecture 2):
Have a go at defining ‘pig’.
An animal which is a four legged mammal with a flesh pink skin tone which lives outdoors
and can be bread in captivity as a source of food.
Reading: Ratnapala – chapter 1;
Why a person should observe the laws in a society is a moral question p2
Law is normative; lays down rules of conduct - what out to be done and ought not to
be done.
Jurisprudence
Study of theories and speculations about law and justice
Legal theory
Theories seeking to answer the question 'what is law'
Limited to the theories about the idea of law and its basic concepts
P4
Analytical and normative jurisprudence
, Analytical jurisprudence; major concepts of law and the meaning of law in general
o Co-extensive with legal theory; legal positivism
o Divided into general analytic jurisprudence (concept of law) and particular
analytical jurisprudence (basic concepts of law)
Normative jurisprudence; focus on the moral dimensions of the law
Law
State law: the law that the state makes or choses to recognise and enforce
The quest for a definintion of law
Commands of a political sovereign backed by sanctions p6; utilitarian, promotes clarity and
legal certainty to public advantage
Authoritative positivist considerations enforceable by courts
Law has no necessary connection with morality
Theoretical definition of law;
Definitions important as it provides sense in law giving us clear understanding of
fundamental legal concepts
Legal positivists seek a universal concept of law; search for definition of law that is both
theoretical and intensional; specifies necessary and sufficient ingredients of law
Law gives structure to society
Law and society are emergent complexity
Lega; positivists and legal realists share aim of explaining the law as it is as opposed to what
it oufht to be
Positivists share and defend the position that rules of law may be logically and factually
separated from other rules of conduct such as moral and social rules; content law satisfies
the formal criteria of validity as a law even if it is immoral
The realist study discovers that the courts engage in value-laden creativity
Postiivists abd reakjsusts disagree on the is
Positivists look to established lawgiving authorities to discover the law
Fuller; laws aim is to subject human conduct to guidenance and control of general rules
In older socieities, where little division of labour, law is found mainly in its repressive form
(criminal law is main repressive law)
Restittutive law predominates as society becomes economically sophisticated.
Legal institutions are shaped by the needs of the social and economic order and not the
reverse
According to CLS; liberal law systematically weakens the social bond and creates in persons a
deep sense of alienation from other persons
Feminist legal theory; women by nature are different from men, women view life in
relational terms unlike men, women are carers not competitors, impersonal nature of law
fails to acomidate the feminine and disenfranchiss women
Old debates and new frontiers
Jurisprudence is not solely the preserve of jurists
Development of legal systems and types of law generates new challenges for scholars
seeking to explain the natuer of the law and the processes of legal change
Centre of gravity of legal systems is no longer clearly located in national legislatures
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