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INTRODUCTION TO JURISPRUDENCE
Mrs Wasantha Seneviratne
M.Phil in Law, LLB (Hons) Monash Fellow,
Attorney-at-Law
Senior Lecturer, FOL, UOC
Introduction
Jurisprudence
Juris + prudence
Science of law
different methods that jurists have used to produce their theories of law
What the Law is ? What the Law aught to be/should be ?
The broad distinction very commonly used between two types of theory
they are either descriptive of the subject-matter of law, in all its forms, or
that they are normative or prescriptive about what the subject matter of law ought to be.
These two ideas – the descriptive and the normative – are very common in jurisprudential thought.
In recent years in Anglo-American jurisprudence, they have been joined, largely through the work of Ronald Dworkin, by a third type of theory, an interpretive theory.
What is jurisprudence? Jurisprudence consists of the study of
the nature of law and its related ideas.
Examining issues critically and rationally LOOK AT THINGS ABSTRACLY
How should difficult legal cases be decided? Many of the difficult problems are purely
philosophical. The following are such problems, and you will be expected to develop your own views in relation to them.
What is definition? What is a rule? What is law? What is morality? What is justice? What is a critical standpoint?
Jurisprudence will help you formulate your convictions on these vital questions.
How to study this subject successfully? The best way to study is to commit
yourself to a sustained reading and writing programme from the beginning of the academic year.
Jurisprudence can be enjoyable.
The questions it deals with are very important
they constantly impose upon the consciousness of all lawyers.
You really can go a long way with this subject by a relaxed reading of a variety of jurisprudential writing.
If you study Juris properly, you will gain a broad and flexible approach to legal questions of all sorts.
Jurisprudence allows you to step back from the details of what you’re doing in the core subjects and speculate on more general, but equally pressing, questions of law.
In popular language, you will learn how to think laterally (horizontally)
Teachers of jurisprudence well understand that for first-comers to the subject, the initial orientation can be hard going.
They are also used to the enthusiasm that frequently develops later, and which remains for a very long time.
You should note early on that facts are much less important in jurisprudence.
It is the ideas that are important. there is a far greater proportion of
abstract, theoretical material in jurisprudence,
The most common problem is failure to appreciate this.
Speluncean Explorers
Read Fuller’s ‘The Case of the Speluncean Explorers’ for an enjoyable way to see how a relatively simple set of facts lends itself to vastly different approaches, each characterised by certain abstract ideas.
That article is used as the introductory reading in jurisprudence in law schools all over the world.
Fuller's hypothetical case involves a group of cave explorers who are trapped following a cave-in and face the risk of death from starvation. The case examines how the rescued survivors, who kill and eat one person in order to survive, should be treated by the law.
The Case of the Speluncean Explorers is an article by legal philosopher Lon L. Fuller that was published in a 1949 issue of the Harvard Law Review. It presents a legal philosophy puzzle to the reader, offering five possible solutions in the form of judicial opinions that are attributed to judges sitting on the fictional "Supreme Court of Newgarth" in the year 4300.
The case involves five explorers who are caved in following a landslide. They learn via intermittent radio contact that, without food, they are likely to starve to death before they can be rescued. They decide that someone should be killed and eaten so that the others may survive. They decide who should be killed by throwing a pair of dice.
After the four survivors are rescued, they are charged and found guilty of the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they face a mandatory death sentence. Although the wording of the statute is clear and unambiguous, there is intense public pressure for the men to avoid facing the death penalty.
The article offers five possible judicial responses. Each differs in its reasoning and on whether the survivors should be found guilty of breaching the law. Two judges affirm the convictions, emphasising the importance of the separation of powers and literal approach to statutory interpretation.
Two other judges overturn the convictions; one focusses on "common sense" and the popular will while the other uses arguments drawn from the natural law tradition, emphasizing the purposive approach. A fifth judge, who is unable to reach a conclusion, recuses himself. As the Court's decision is a tie, the original convictions are upheld and the men are sentenced to death.
Judge Key Points Decision
Chief Justice
Truepenny
Statute is
unambiguous and
must be applied by
judiciary
notwithstanding
personal views
Clemency is a matter
for the executive, not
the judiciary
Court should join
petition to Chief
Executive for
clemency
Affirms convictions
but recommends
clemency
Justice
Foster
Defendants were in a "state of nature" so Newgarth's
normal laws did not apply to them; the laws of nature would
allow them to agree to sacrifice one's life to save the other
four
If the laws of Newgarth do apply, then a purposive approach
must be taken to the statute. Judges can find an exception
to the law by implication, as the Courts had earlier done
with self-defence.
Principal purpose of the criminal law – deterrence –
would not be served by convicting the defendants.
Sets
aside
convict
ions
Justice
Tatting
Criticises Foster J's approach
The natural law under the posited "state
of nature" prioritises freedom of
contract above the right to life
Purposive approach to statutory
interpretation is difficult when there are
multiple purposes (here, retribution and
rehabilitation)
Cannot decide case due to competing legal
rationales and emotions
Withdraw
s from
case and
makes no
decision
Justice
Keen
Criticises Chief Justice's proposed
appeal to Executive for clemency given
need to respect separation of powers;
should only make appeal in capacity as
private citizens
Moral considerations are irrelevant in
applying the statute
Affirms
conviction
s
Justice
Handy
Court should take account of
public opinion and "common
sense"
Aware that 90% of the public want
the men to face a lesser
punishment or be released
Has heard rumours that the Chief
Executive will not commute the
sentence despite strong public
opinion
Sets aside
convictions
ReadingEssential reading
Freeman, M. (ed.) Lloyd’s introduction to jurisprudence. (London: Sweet & Maxwell, 2008) eighth edition [ISBN 9780421907904].
Penner, J. et al. (eds) Jurisprudence and Legal Theory: Commentary and Materials. (Oxford: Oxford University Press, 2002) [ISBN 9780406946782].
Hart, H. The Concept of Law. (Oxford: Oxford University Press, 1994) second edition [ISBN 0198761228] – THIS IS THE SET BOOK AND IT IS VITAL THAT YOU BUY IT.
Recommended texts
The following are books that could be usefully bought, but if they are readily available from a library, that is fine:
Dworkin, R. Law’s Empire. (Oxford: Hart Publishing, 1998) [ISBN 1841130419].
Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253877].
Morrison, W. Jurisprudence: From the Greeks to Post-modernism. (London: Cavendish, 1997) [ISBN 1859411347].
Simmonds, N. Central Issues in Jurisprudence: Justice, Law and Rights. (London: Sweet & Maxwell, 2008) third edition [ISBN 9781847030085].
How to read works in jurisprudence
Appreciate that the subject-matter is difficult. You will have to learn to read difficult to understand works.
This means that you should slow down and contemplate everything carefully.
It is not like reading a light novel!
Reading the reports of judicial decisions also can be difficult.
Each chapter of the set book, Hart’s The Concept of Law, requires several hours, sustained effort.
By the time of the examination you should be able to:
expound and criticise important ideas of selected jurists in the Anglo-American
traditions demonstrate an ability to think in a more
abstract or general fashion than is generally achieved in the study of specific areas of law
demonstrate a willingness to question and think independently and to find out more
demonstrate systematic reading
Jurisprudence is full of outstanding thinkers.
Austin and Bentham, Hart and Kelsen, Dworkin, Fuller
draw a distinction between ‘concepts’ and ‘conceptions’. ,
It only gets interesting when some theorist proposes a way of looking at the ‘concept’.
Then we might say that he proposes a conception of it. So Fuller’s ‘conception’ of law differs from, Hart’s ‘conception’,
Lessons to be covered
Introduction The nature of jurisprudence Imperative or command theories of law Classical and modern natural law theory Introduction to Hart’s Concept of Law Hart’s rule of recognition Hart’s defences against natural law and
Fuller’s criticism
Practical reason and the authority of law Kelsen’s theory of law The integrity and interpretation of law Social theory and law Marx, Marxism and Marxist legal theory Liberalism and law Feminist legal theory Critical legal
studies Critical race theory
Imperative or command theories of law
This theory can be regarded as the earliest modern legal theory in England.
The imperative or ‘command’ theory of law is famously associated with Jeremy Bentham and John Austin.
. The theory is based in a conception of sovereignty derived from long traditions of political thought to which Thomas Hobbes was a chief contributor, but adapted in significant ways to what Bentham and Austin understood as the political, social and legal conditions of their times.
What the Law is – existing law Command of the sovereign followed by
sanctions No choce for the subjects of law
(people)
Classical and modern natural law theory
From the time of the ancient Greeks up until the sixteenth or seventeenth centuries, there really was only one kind of ‘legal theory’ – natural law.
The essence of this legal theory was that the law must be understood as a practical application of morality;
hence law and morality are intimately connected.
What ought to be law? Law and morality
Introduction to the set book:
Hart’s The Concept of Law Hart’s work touches on many of the
most significant questions about law. Whether or not you disagree with what
he says, his work is an excellent starting point for getting deeper into jurisprudence.
The immediate aim is to encourage you to obtain a very good working knowledge of a theory of law which is not only widely accepted, but which is very frequently the starting point forother significant theories of law.
Many judges, lawyers and academics consider that Hart’s major work, The Concept of Law, first published in 1961, provides an accurate account of how we should understand law.
This work sets the agenda for practically all the questions that are currently raised in jurisprudence.
The book is rightly part of the literature of a proper study of law at a university level and the teachers on the University of London Jurisprudence module believe that because of its importance it should be required reading for all candidates taking the module.
For that reason, The Concept of Law is the subject of a compulsory question in the examination each year, out of a choice of three. It is important, therefore, to read this prescribed text very carefully indeed.
Raz on practical reason and the authority of law
Joseph Raz is probably Hart’s most important intellectual heir, and much of his work has been on the nature of authority and the authoritative character of law.
This work has been revolutionary in political and moral philosophy as well as in the law,
but in the law its particular importance owes to the fact that, according to Raz, once the authoritative nature of the law is appreciated, then the connections between morality and law can be drawn more clearly.
Practical reason and lawWhat is a norm?
A ‘norm’ in the broadest sense is nothing more or less than a standard against which human behaviour or some other event is assessed.
Rules and orders
The most obvious cases of norms are rules and orders. Although the distinction is vague at the borderline, rules are usually conceived of as general directives that apply to more than one instance, such as the law requiring income earners to pay income tax.
They are obviously normative, in that they guide the behaviour of subjects of the legal system, who are in turn judged by whether or not they comply with the rule.
Rights
Rights are norms expressed from the perspective of the individual.
It is possible in some cases to translate a norm framed in terms of a right or power into a rule:
for example, the right to life is easily treated as equivalent to a rule prohibiting killing.
Powers
A power is a normative capacity or ability to create, alter or abolish the norms (rights, rules, duties or other powers) that would otherwise apply to oneself or others. A legislature has the power to make new laws, or amend or abolish old ones.
Duties
The normativity of duties is obvious. Duties are exclusionary reasons, in Razian terms.
Duties can correlate to rights, or can be imposed simply by rules for a host of reasons.
Many of the duties we have under the law are not clearly associated with any particular rights.
Kelsen’s theory of law
This theory of law is introduced by an Austrian lawyer and philosopher named Hans Kelsen (1881–1973).
Studying his theory gives us insight into this theory and, through careful comparison, into both the command theory and Hart’s theory.
In particular, Hart’s rule of recognition has significant similarities with Kelsen’s famous Grundnorm.
The integrity and interpretation of law
This lesson sets out the theory of Ronald Dworkin. His theory directly contradicts legal positivism and he has spent much of his career attacking that theory, which he thinks cannot do justice to the power of legal argument.
Dworkin’s theory of law has no ‘master rule’ such as the Grundnorm or Hart’s rule of recognition or something like ‘what the Sovereign commands’, and this makes the theory hard.
He speaks of a hypothetical judge named Judge Hercules who solves hard cases.
Marx, Marxism and Marxist legal theory
Law is a weapon of social control. This lesson provides an introduction to
Marxist jurisprudence. Firstly, we will look at Karl Marx’s ideas on law, economy and society, and see that they emerged from his criticisms of other philosophers.
Then we will turn to scholars who work within a Marxist tradition, and see how these writers attempted to build a Marxist theory of law.
Liberalism and law
This lesson will introduce you to the general topic of what liberalism is, and how ideas of liberalism interact with law. It begins by looking at the modern versions of utilitarianism.
The origins of utilitarianism are to be found in the works of Jeremy Bentham
Utilitarianism is a liberal doctrine. It aims at happiness, or in more modern terms, preference satisfaction or welfare, and this idea fundamentally gains its power from its emphasis on liberty.
In turn, since one person’s liberty is another person’s lack of freedom, a moral principle of equality can be uncovered, that regulates each person’s relationship with each other.
This relationship particularly comes out in the idea of the marketplace, where we expect people in the ideal world to be as far as possible free to bargain without the constraints created by inequalities of bargaining power. The idea was taken up in the 1970s, most famously by the Chicago School of Law, and its doctrines became known simply as ‘the Chicago School’.
Utilitarianism
Utilitarianism is a moral theory, first written widely about by Jeremy Bentham, who is often acknowledged as the father of English Jurisprudence.
It is therefore included in the syllabus partly for historical reasons. But utilitarianism has had an enormous effect on English (and Commonwealth) practical life.
Note, in particular, its effect on the growth of liberalism (‘each man to count as one, no one to count for more than one’) and economics.
It is difficult for law to get right away from addressing moral questions, and utilitarianism, in its various forms, is widely accepted.
The extract from Rawls will set you on the right path. Some Jurisprudence students really get into utilitarianism, because it is a good way of working out what your own ideas are.
It is, in fact, the easiest and most fruitful way to begin to discover what moral philosophy is about. Some of the best answers ever given in a Jurisprudence examination have been on utilitarianism.
Feminist legal theory
Feminist theory has made a vibrant and controversial entry into academic writing in the field of law.
The scholarship in this area has developed into a large body of literature which can defy organisation in its wide-ranging scope and complexity.
Feminist theorising in legal scholarship draws widely from feminist theory in other disciplines – literature, sociology, political science and history to name a few.
Feminism has been described as a movement with many projects; there is not just one feminist view on everything, so not just one feminist legal theory. However, arguably feminist legal scholars have certain similar concerns.
For example, they show how law defines what is male/female/masculine and feminine, reinforcing the position of men and women in society to men’s advantage;
analyse how the differences between women and men should or should not be reflected in legal rules, institutions and structures;
place the lives of real women at the centre of their scholarship and often stress ideals of women’s self-determination and freedom: for women to be treated as fully human.
Critical legal studies
This topic provides an introduction to critical legal studies. This form of jurisprudence has its origins in America, as a development of Legal Realism.
It is marked by a desire to present a critique of the law that draws on political and social theory.
We will see that the original ideas of American CLS scholars were developed by being linked to the notion of postmodernism.
We will also see that South African legal scholars are turning to the inheritance of CLS in order to provide a critique of the old apartheid regime, and an understanding of law in the new South Africa.
Critical race theory
Critical race theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community.
CRT emerges as an engagement with the civil liberties struggle and its aftermath.
However, CRT can also be seen as a way of thinking about the law that is not limited to the American experience, and which addresses law’s involvement with racism. In this lesson, we will look at postcolonialism, and examine its links with CRT.
Use examples. It is always helpful to show your
awareness that jurisprudential questions must be tested against real life.
Thank you
