September 3, 2005
George D. Pappas, Esq.
ICLS Director
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ICLS Lectures will build on the University of London Subject Guide, 2004 Edition.
Students are advised to read Chapters 1 and 2 of the UOL Subject Guide
Required TextBooks: Essential Reading
M. Freemand (ed) Lloyd’s Introduction to Jurisprudence
H.L.Hart's “The Concept of Law.”
Topics to focus on: Introductory Lecture

Descriptive vs. Prescriptive Aspects of Law

Law v. Morality or Legality v. Morality
 The ‘is v. ought” debate

Concepts v. Conceptions

Understanding Jurisprudence as a Philosophy of What law is vs. What law ought to be.

Understanding that Jurisprudence looks at the same subject matter through different philosophical glasses
a). Once you identify the “subject” matter, that is “law”, you should then move to the next issue of what you are trying to find or explain. Are you explaining what the law “is”? Are you
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explaining what the law “ought to be”? Are you explaining how the “legal system” works or should work? Are you observing the “structure of law”, or has Austin described, “the Province of Jurisprudence Determined.” One you grasp the essential question or inquiry, your next step is to organize your thoughts in terms of what the various theorists state or postulate. b) It is important to understand why Bentham, Austin, Kelsen, Hart, and others differ from each other. Are they asking the same question?
In writing about Jurisprudence, you will be expected to compare and contrast what the different theorists say about the same subject matter – you will need to show the examiners that:
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You have a firm understanding of the differences between the leading theorists
2.
That you understand the differences between theorists in a way that allows you to formulate your own conclusion about the same questions. c) Do not be sidelined by the linguistic nature of Jurisprudence. Be mindful that theorists rather than trying to write clearly, tend to use jargon of their own that develops into an opaque text of terms, Latin and strange usage of everyday words that take on totally new meaning when used in the Jurisprudence context.
Be mindful of such terms. J.G. Riddall in his book Jurisprudence has an excellent introductory chapter on this issue.
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Riddell states “It is not long before the student realizes that the aim of some writers is not clarity but obfuscation.” (pg. 4, 2 nd Edition). H.L. Hart’s use of the words “obligation” vs.
“obliged” is an example of how everyday words take on new meanings in Jurisprudence.
3.
Unlike traditional courses in Criminal Law, Tort, Trust – Jurisprudence is not built on rules and case law. In fact, Jurisprudence can be whatever it wishes to be. What appears to be a slippery fish in terms of being able to grasp the “essence” of the subject matter, Jurisprudence is a body of work based on countless viewpoint’s discussing similar questions. In fact, how you frame a question will often dictate what kind of discussion will follow. For example, if you ask “What is
Law”, are you seeking a description of law? Are you asking if there is an essence to law? Are you assuming that law “properly so called” (John Austin) is static observation and capable of definition.
Some in the Jurisprudence field refer to “legal positivism” as the value free definition of law or the value free description of law. In other words, some view or define “legal positivism” as observing “the law” without discussing morality. (Pay special attention to Thomas Hobbs, Jeremy
Bentham and John Austin in this light. Later on you will review H.L. Hart’s book “The Concept of
Law,” in light of these earlier theorist and their “legal positivism.”).
Perhaps others who are reading the above debate will venture to state that while you can perhaps attempt to define “what is law”, that such questions fail to take into account the value elements of law, namely, what law “ought to be.” Once you start to understand the dynamics of how jurisprudence question are forms, and answered, you can start to appreciate how easy it is for writers and their critics to endlessly branch off each other with further inquires and additional questions about the “law.”
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Rather than seek to understand Jurisprudence as an entity like Criminal Law or Contract law, students should see Jurisprudence as a philosophy of law; a philosophy which seeks to provide difference perspectives on what law is, ought to be and most importantly, how those issues of “is and ought” play out in the real world not only today, but in the past. As you progress through this course, I will ask each student to be mindful of the historical context within which each theorist is writing from. As a brief prelude to this important point, be mindful of H.L. Hart’s criticism of John
Austin, in part, considering how Hart did not appreciate Hart’s time, but rather chose to build up
Austin only to tear him down as a “foil” for his own “Concept of Law.”
I’m going to devote the reminder of the Introductory lecture to the issue of showcasing how several theorist discuss similar legal problems. The goal at this stage is not to necessarily define what each theorist is saying, but to underscore my belief that as a new student to Jurisprudence, you need to quickly observe the interplay between theorist. This course will ultimately ask you to contrast the different viewpoints of the theorists; therefore, I will conclude this lecture by demonstrating such contrasting.
Earlier in this lecture, we talked about the nature of Jurisprudence as compared to the more traditional LL.B. subjects like Criminal Law, Tort and others. Here I wish to develop that theoretical comparison with some hard examples, and using the Natural Law Theory is a good starting point.
The following topics are discussed in your Introductory lecture as hard examples of how different theorist will discuss the same issue in different ways:
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1.
What is law
2.
What is natural law (see above).
3.
What law ought to be
4.
What is a legal system (e.g., Comparing Austin’s “Command Theory” and “Hart’s
Rules of Recognition).
5.
Can law be valid without law being moral
6.
H.L. Hart’s “minimum content of Law.”
7.
Lon Fuller “Inner morality of Law.”
8.
What is legal validity?
As you listen to the first lecture, pay close attention to the question that each theorist is asking.
Listen to the discussion as a starting point to appreciate the different meanings attach by each theorist in so far as how they wish the world to view “the law”
Copyright © 2005 The International Center for Legal Studies
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