Jurisprudence Notes
Jurisprudence and Legal Theory Notes
This Jurisprudence manual is intended for the students studying the module of Jurisprudence at the University of London or another university. In essence, the 226 page document provides a comprehensive overview of major schools of thought and key figures in jurisprudence, including legal positivism, natural law, Dworkin's interpretivism, liberalism, Marxist legal theory, and feminist legal theories. It explores fundamental questions about the nature of law, its validity, its relationship with morality and justice, and its role in society, often through examining historical and contemporary debates and case studies. The manual covers the following topics within the field of jurisprudence and legal theory:
Chapter 1 - Jurisprudence
This chapter introduces jurisprudence, exploring what it is, how to study it, and includes essay questions. It defines jurisprudence as the study of the nature of law and its related ideas, covering general theoretical questions about laws, legal systems, the relationship of law to justice and morality, and the social nature of law. It highlights that jurisprudence encourages questioning assumptions, develops understanding of law's nature, and engages with legal practice and political morality.
Chapter 2 - Natural Law
This chapter covers Natural Law, a tradition originating in Ancient Greece and Rome which proposes that morality and justice are discernible through reason and are aligned with human nature. It delves into Aquinas's theory, explaining his hierarchy of laws and how human law is derived from natural law through processes like specificatio and determinatio. The chapter also introduces modern natural law thinkers like John Finnis, focusing on morally successful law based on basic values, and Lon Fuller, who presents a procedural "inner morality of law" defined by eight principles of procedural justice necessary for a system to be considered true law. A significant focus is the debate on the necessary connection between law and morality, contrasted with legal positivism and exemplified by case studies like the Grudge Informers scenario.
Chapter 3 - Legal Positivism I
This chapter introduces legal positivism, focusing on key figures like Jeremy Bentham and John Austin and their imperative or command theories of law. It discusses the emergence and core meaning of legal positivism, emphasizing the separation of law and morality and law as a social construct. Critiques of command theories and subsequent developments, such as Hart's work, are also covered. Original extracts and ideas from Thomas Hobbes, Jeremy Bentham, and John Austin are summarized to understand the birth and development of secular legal theories. The relevance of Austin's command theory in the modern world and its advantages and disadvantages are discussed, alongside the social and political context in which Austin wrote.
Chapter 4 - Legal Positivism II
This chapter delves into H.L.A. Hart's influential work, The Concept of Law, which is considered a cornerstone of contemporary legal theory. It explains key concepts in Hart's theory, such as the difference between a 'simple' definition and Hart's approach, the distinction between 'internal' and 'external' points of view, his criticism of the 'orders backed by threats' theory, the concept of a rule, and the major components of his 'union of primary and secondary rules'. It also outlines Hart's concept of the 'rule of recognition'.
Chapter 5 Hart’s rule of Recognition
This chapter focuses specifically on Hart's rule of recognition, describing it in detail and its significance for his form of legal positivism. It discusses Hart's claim that the rule of recognition is identified as 'a matter of fact' and outlines Dworkin's criticisms of this theory. Hart's position in the Postscript to The Concept of Law, where he responds to critics, is also described, highlighting its significance for interpreting his main doctrines and understanding law generally.
Chapter 6 The Hart Fuller Debate
This chapter details the main arguments of the Hart-Fuller debate, primarily centered around the relationship between law and morality, using the 'grudge informer' case as a key example. It examines how both Hart and Fuller use this case to support their respective legal positivist and natural law perspectives. Fuller's eight principles of procedural justice are also presented as part of his natural law theory.
Chapter 7 - Kelsen Pure Theory of Law
This chapter introduces Hans Kelsen's Pure Theory of Law, covering its two major parts: law as a 'specific technique of social organisation' and the theory of the Grundnorm (basic norm). It explains Kelsenian terminology, compares the Grundnorm with Hart's rule of recognition, and discusses Kelsen's theories of validity, effectiveness, revolution, and the unity of the legal system.
Chapter 8 - Raz
This chapter discusses Joseph Raz's theory of authority, including the concept of an 'exclusionary' reason and its role in practical reasoning. It explains how applying Raz's theory leads to the claim that law cannot depend on moral truths and that judges exercise discretion when law refers to moral standards. It also outlines how Raz's theory challenges soft positivism and Dworkin's theory of law.
Chapter 9 - Dworkin
This chapter focuses on Ronald Dworkin's legal theory, detailing his stages of legal argument (pre-interpretive, interpretive, and post-interpretive) and the role of Hercules as the ideal judge. It explains the distinction between arguments of principle and policy, and arguments of fit and substance, central to Dworkin's interpretivist approach. Dworkin's concept of integrity as a virtue of law and his view of law as primarily about justifying legal arguments are discussed. His arguments against the 'social sources' theory of law and the purely defensive nature of his 'one right answer' thesis are also presented.
Chapter 10 - Liberalism and law
This chapter explores the relationship between liberalism and law, including modern utilitarianism, different views on liberty (Lord Devlin, Hart, Mill), and the debate on whether criminal law should enforce morality. It also touches on moral disagreement, moral equality, and critically discusses Rawls's theory of justice.
Chapter 11 - Marx, Marxism and Marxist Legal theory
This chapter outlines Karl Marx's ideas on ideology, economy, and society, identifying the philosophical tradition from which his thought emerges. It describes Marx's ideas of law and the state, characteristics of Soviet jurisprudence, the development of Marx's theories by Louis Althusser, and the potential relevance of Marx's thought to contemporary international law.
Chapter 12 - Feminist Legal Theories
This chapter identifies central themes in feminist jurisprudence (FLT), discusses the work of key scholars, and provides an account of the history of theorizing in this area. It also identifies commonly categorized orientations in FLT and mentions applying feminist scholarship to legal practice.
Jurisprudence and Legal Theory Notes
This Jurisprudence manual is intended for the students studying the module of Jurisprudence at the University of London or another university. In essence, the 226 page document provides a comprehensive overview of major schools of thought and key figures in jurisprudence, including legal positivism, natural law, Dworkin's interpretivism, liberalism, Marxist legal theory, and feminist legal theories. It explores fundamental questions about the nature of law, its validity, its relationship with morality and justice, and its role in society, often through examining historical and contemporary debates and case studies. The manual covers the following topics within the field of jurisprudence and legal theory:
Chapter 1 - Jurisprudence
This chapter introduces jurisprudence, exploring what it is, how to study it, and includes essay questions. It defines jurisprudence as the study of the nature of law and its related ideas, covering general theoretical questions about laws, legal systems, the relationship of law to justice and morality, and the social nature of law. It highlights that jurisprudence encourages questioning assumptions, develops understanding of law's nature, and engages with legal practice and political morality.
Chapter 2 - Natural Law
This chapter covers Natural Law, a tradition originating in Ancient Greece and Rome which proposes that morality and justice are discernible through reason and are aligned with human nature. It delves into Aquinas's theory, explaining his hierarchy of laws and how human law is derived from natural law through processes like specificatio and determinatio. The chapter also introduces modern natural law thinkers like John Finnis, focusing on morally successful law based on basic values, and Lon Fuller, who presents a procedural "inner morality of law" defined by eight principles of procedural justice necessary for a system to be considered true law. A significant focus is the debate on the necessary connection between law and morality, contrasted with legal positivism and exemplified by case studies like the Grudge Informers scenario.
Chapter 3 - Legal Positivism I
This chapter introduces legal positivism, focusing on key figures like Jeremy Bentham and John Austin and their imperative or command theories of law. It discusses the emergence and core meaning of legal positivism, emphasizing the separation of law and morality and law as a social construct. Critiques of command theories and subsequent developments, such as Hart's work, are also covered. Original extracts and ideas from Thomas Hobbes, Jeremy Bentham, and John Austin are summarized to understand the birth and development of secular legal theories. The relevance of Austin's command theory in the modern world and its advantages and disadvantages are discussed, alongside the social and political context in which Austin wrote.
Chapter 4 - Legal Positivism II
This chapter delves into H.L.A. Hart's influential work, The Concept of Law, which is considered a cornerstone of contemporary legal theory. It explains key concepts in Hart's theory, such as the difference between a 'simple' definition and Hart's approach, the distinction between 'internal' and 'external' points of view, his criticism of the 'orders backed by threats' theory, the concept of a rule, and the major components of his 'union of primary and secondary rules'. It also outlines Hart's concept of the 'rule of recognition'.
Chapter 5 Hart’s rule of Recognition
This chapter focuses specifically on Hart's rule of recognition, describing it in detail and its significance for his form of legal positivism. It discusses Hart's claim that the rule of recognition is identified as 'a matter of fact' and outlines Dworkin's criticisms of this theory. Hart's position in the Postscript to The Concept of Law, where he responds to critics, is also described, highlighting its significance for interpreting his main doctrines and understanding law generally.
Chapter 6 The Hart Fuller Debate
This chapter details the main arguments of the Hart-Fuller debate, primarily centered around the relationship between law and morality, using the 'grudge informer' case as a key example. It examines how both Hart and Fuller use this case to support their respective legal positivist and natural law perspectives. Fuller's eight principles of procedural justice are also presented as part of his natural law theory.
Chapter 7 - Kelsen Pure Theory of Law
This chapter introduces Hans Kelsen's Pure Theory of Law, covering its two major parts: law as a 'specific technique of social organisation' and the theory of the Grundnorm (basic norm). It explains Kelsenian terminology, compares the Grundnorm with Hart's rule of recognition, and discusses Kelsen's theories of validity, effectiveness, revolution, and the unity of the legal system.
Chapter 8 - Raz
This chapter discusses Joseph Raz's theory of authority, including the concept of an 'exclusionary' reason and its role in practical reasoning. It explains how applying Raz's theory leads to the claim that law cannot depend on moral truths and that judges exercise discretion when law refers to moral standards. It also outlines how Raz's theory challenges soft positivism and Dworkin's theory of law.
Chapter 9 - Dworkin
This chapter focuses on Ronald Dworkin's legal theory, detailing his stages of legal argument (pre-interpretive, interpretive, and post-interpretive) and the role of Hercules as the ideal judge. It explains the distinction between arguments of principle and policy, and arguments of fit and substance, central to Dworkin's interpretivist approach. Dworkin's concept of integrity as a virtue of law and his view of law as primarily about justifying legal arguments are discussed. His arguments against the 'social sources' theory of law and the purely defensive nature of his 'one right answer' thesis are also presented.
Chapter 10 - Liberalism and law
This chapter explores the relationship between liberalism and law, including modern utilitarianism, different views on liberty (Lord Devlin, Hart, Mill), and the debate on whether criminal law should enforce morality. It also touches on moral disagreement, moral equality, and critically discusses Rawls's theory of justice.
Chapter 11 - Marx, Marxism and Marxist Legal theory
This chapter outlines Karl Marx's ideas on ideology, economy, and society, identifying the philosophical tradition from which his thought emerges. It describes Marx's ideas of law and the state, characteristics of Soviet jurisprudence, the development of Marx's theories by Louis Althusser, and the potential relevance of Marx's thought to contemporary international law.
Chapter 12 - Feminist Legal Theories
This chapter identifies central themes in feminist jurisprudence (FLT), discusses the work of key scholars, and provides an account of the history of theorizing in this area. It also identifies commonly categorized orientations in FLT and mentions applying feminist scholarship to legal practice.
Jurisprudence and Legal Theory Notes
This Jurisprudence manual is intended for the students studying the module of Jurisprudence at the University of London or another university. In essence, the 226 page document provides a comprehensive overview of major schools of thought and key figures in jurisprudence, including legal positivism, natural law, Dworkin's interpretivism, liberalism, Marxist legal theory, and feminist legal theories. It explores fundamental questions about the nature of law, its validity, its relationship with morality and justice, and its role in society, often through examining historical and contemporary debates and case studies. The manual covers the following topics within the field of jurisprudence and legal theory:
Chapter 1 - Jurisprudence
This chapter introduces jurisprudence, exploring what it is, how to study it, and includes essay questions. It defines jurisprudence as the study of the nature of law and its related ideas, covering general theoretical questions about laws, legal systems, the relationship of law to justice and morality, and the social nature of law. It highlights that jurisprudence encourages questioning assumptions, develops understanding of law's nature, and engages with legal practice and political morality.
Chapter 2 - Natural Law
This chapter covers Natural Law, a tradition originating in Ancient Greece and Rome which proposes that morality and justice are discernible through reason and are aligned with human nature. It delves into Aquinas's theory, explaining his hierarchy of laws and how human law is derived from natural law through processes like specificatio and determinatio. The chapter also introduces modern natural law thinkers like John Finnis, focusing on morally successful law based on basic values, and Lon Fuller, who presents a procedural "inner morality of law" defined by eight principles of procedural justice necessary for a system to be considered true law. A significant focus is the debate on the necessary connection between law and morality, contrasted with legal positivism and exemplified by case studies like the Grudge Informers scenario.
Chapter 3 - Legal Positivism I
This chapter introduces legal positivism, focusing on key figures like Jeremy Bentham and John Austin and their imperative or command theories of law. It discusses the emergence and core meaning of legal positivism, emphasizing the separation of law and morality and law as a social construct. Critiques of command theories and subsequent developments, such as Hart's work, are also covered. Original extracts and ideas from Thomas Hobbes, Jeremy Bentham, and John Austin are summarized to understand the birth and development of secular legal theories. The relevance of Austin's command theory in the modern world and its advantages and disadvantages are discussed, alongside the social and political context in which Austin wrote.
Chapter 4 - Legal Positivism II
This chapter delves into H.L.A. Hart's influential work, The Concept of Law, which is considered a cornerstone of contemporary legal theory. It explains key concepts in Hart's theory, such as the difference between a 'simple' definition and Hart's approach, the distinction between 'internal' and 'external' points of view, his criticism of the 'orders backed by threats' theory, the concept of a rule, and the major components of his 'union of primary and secondary rules'. It also outlines Hart's concept of the 'rule of recognition'.
Chapter 5 Hart’s rule of Recognition
This chapter focuses specifically on Hart's rule of recognition, describing it in detail and its significance for his form of legal positivism. It discusses Hart's claim that the rule of recognition is identified as 'a matter of fact' and outlines Dworkin's criticisms of this theory. Hart's position in the Postscript to The Concept of Law, where he responds to critics, is also described, highlighting its significance for interpreting his main doctrines and understanding law generally.
Chapter 6 The Hart Fuller Debate
This chapter details the main arguments of the Hart-Fuller debate, primarily centered around the relationship between law and morality, using the 'grudge informer' case as a key example. It examines how both Hart and Fuller use this case to support their respective legal positivist and natural law perspectives. Fuller's eight principles of procedural justice are also presented as part of his natural law theory.
Chapter 7 - Kelsen Pure Theory of Law
This chapter introduces Hans Kelsen's Pure Theory of Law, covering its two major parts: law as a 'specific technique of social organisation' and the theory of the Grundnorm (basic norm). It explains Kelsenian terminology, compares the Grundnorm with Hart's rule of recognition, and discusses Kelsen's theories of validity, effectiveness, revolution, and the unity of the legal system.
Chapter 8 - Raz
This chapter discusses Joseph Raz's theory of authority, including the concept of an 'exclusionary' reason and its role in practical reasoning. It explains how applying Raz's theory leads to the claim that law cannot depend on moral truths and that judges exercise discretion when law refers to moral standards. It also outlines how Raz's theory challenges soft positivism and Dworkin's theory of law.
Chapter 9 - Dworkin
This chapter focuses on Ronald Dworkin's legal theory, detailing his stages of legal argument (pre-interpretive, interpretive, and post-interpretive) and the role of Hercules as the ideal judge. It explains the distinction between arguments of principle and policy, and arguments of fit and substance, central to Dworkin's interpretivist approach. Dworkin's concept of integrity as a virtue of law and his view of law as primarily about justifying legal arguments are discussed. His arguments against the 'social sources' theory of law and the purely defensive nature of his 'one right answer' thesis are also presented.
Chapter 10 - Liberalism and law
This chapter explores the relationship between liberalism and law, including modern utilitarianism, different views on liberty (Lord Devlin, Hart, Mill), and the debate on whether criminal law should enforce morality. It also touches on moral disagreement, moral equality, and critically discusses Rawls's theory of justice.
Chapter 11 - Marx, Marxism and Marxist Legal theory
This chapter outlines Karl Marx's ideas on ideology, economy, and society, identifying the philosophical tradition from which his thought emerges. It describes Marx's ideas of law and the state, characteristics of Soviet jurisprudence, the development of Marx's theories by Louis Althusser, and the potential relevance of Marx's thought to contemporary international law.
Chapter 12 - Feminist Legal Theories
This chapter identifies central themes in feminist jurisprudence (FLT), discusses the work of key scholars, and provides an account of the history of theorizing in this area. It also identifies commonly categorized orientations in FLT and mentions applying feminist scholarship to legal practice.