DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
24 JURISPRUDENCE
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
September 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Reading Guide
External Students
Prescribed Topics and Course Outline
Compulsory Assignment
Assignment Question
1
1
1-2
2
3
4-5
5
5-6
6
6-10
11
11
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LAW EXTENSION COMMITTEE
WINTER 2016
24 JURISPRUDENCE
COURSE DESCRIPTION AND OBJECTIVES
This course in jurisprudence will apply the concepts and techniques of philosophical analysis
to an examination of the nature of law, issues surrounding legal reasoning, and the
relationship between law, morals and theories of justice. The course will examine some of
the most important theories of jurisprudence, and trace their historical development. The
course will consider the debate about the separation between law and morals, and
arguments for and against natural law. The course seeks not only to introduce students to
modern legal philosophy, but to demonstrate how that study gives insights into the nature
and function of law important to the practice of law.
LECTURERS
Dr Christopher Birch, SC, BA, LLB, PhD (Syd)
Dr Birch, Barrister-at-Law, has practised at the Sydney Bar since 1982 and is a part-time
lecturer in the Faculty of Law at the University of Sydney.
Ms Sophie York, BA, LLB (UNSW), GDLP (UTS)
Ms York was admitted as a legal practitioner in 1991 and was called to the Bar in 1995. She
is a part-time lecturer in the Faculty of Law at the University of Sydney, Officer of the Royal
Australian Naval Legal Reserve (NSW Panel), and author.
Dr Philip Andrew Quadrio BA (USyd), GCM (UWoll), PhD (USyd)
Philip is a philosopher based at the University of New South Wales. His work focuses on
ethics, political theory and social theory. He is the author of Towards a Theory of Organic
Relations: Hegel’s Social Theory from Tübingen to Jena (2010, LAP) and has published
numerous academic papers and edited collections.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC
teaching and learning program, the first step of which is to ensure that you have registered
online with the LEC in each subject for which you have enrolled with the Board. This gives
you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link
and follow the instructions. Detailed guides to the Webcampus are contained in the material
distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a
student’s performance in a subject in order for the student to be eligible to sit for the
2
examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are
used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible
to sit for examinations. However, a category of “deemed eligible” has been introduced to
offer students whose assignment mark is between 40-49% an opportunity to sit for the
examination. In these circumstances students are often advised not to sit. A mark below 40%
means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments.
The LEC engages the LPAB’s Examiners to assess or supervise the assessment of
assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been
granted. Extensions must be requested by email prior to the due date. Specific supporting
evidence must be provided. Assignments that are more than ten days late will not be
accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks
available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria”
outlined in the Guide to the Presentation and Submission of Assignments. Prior to the
examination, assignments will be returned to students and results posted on students’
individual results pages of the LEC Webcampus. Students are responsible for checking their
results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s
assignment in that subject will be reviewed prior to a final mark in the subject being awarded.
Except in the case of demonstrable error, assignment marks will not otherwise be reviewed
prior to the examination.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics.
Candidates will be expected to have studied the prescribed topics, and to have analysed the
cases contained in the Law Extension Committee's course outline.
The examination paper will comprise eight questions, of which four must be attempted.
All enquiries relating to examinations should be directed to the Legal Profession Admission
Board.
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LECTURE PROGRAM
Lectures in Jurisprudence will be held on Thursdays from 6.00pm until 9.00pm, commencing
on 12 May 2016. In the first half of the semester, they will be held in New Law School
Lecture Theatre 026 (New LSLT 026). Lecture venues for the second half of the semester
have yet to be confirmed.
The following program is a general guide and may be varied according to need. Readings
are suggested to introduce you to the material to be covered in the lecture, to enhance your
understanding of the topic, and to encourage further reading. You should not rely on them
alone.
WEEK
1
12 May
TOPIC
The Doctrine of Precedent and the
American Realists
KEY READING
McCoubrey – Chapter 9
2
19 May
3
26 May
4
2 June
5
9 June
6
16 June
HLA Hart & Dworkin’s Theories of
Legal Interpretation
Language, Meaning, and Drafter’s
Intentions
The Duty to Obey the Law
McCoubrey – Chapters 4, 5 & 6
John Rawls & the Theory of Justice
McCoubrey – Chapter 12
7
7 July
8
14 July
9
21July
10
28 July
Critical Legal Studies, Marxist
Jurisprudence
Natural Law and Positivism
McCoubrey – Chapters 13, 14 & 15
The Philosophy of International Law:
From Kelsen to Human Rights Theory
Crime & Punishment
Mc Coubrey – Chapters 2 & 3
11
4 Aug
Law & Economics
Bix – Chapter 18
12
11 Aug
Philosophy and the Law of Property
13
18 Aug
Philosophy and Contract Law/Course
Review
Waldron, J, ‘Property Law’, Chapter
1 from Companion to Philosophy of
Law and Legal Theory
Benson P, ‘Contract’, Chapter 2 from
Companion to Philosophy of Law
and Legal Theory
McCoubrey – Chapters 5, 6 & 9
McCoubrey – Chapters 2, 8 & 10
John Locke and Robert Nozick
(1) Kymlicka, W. (2002)
Contemporary Political Philosophy:
An Introduction Oxford UP, Oxford (p
102-121)
(2) Hudson, B. (2003) Justice in the
Risk Society, Sage Publications,
London (p 3-9)
Study Break: Saturday 18 June – Sunday 3 July 2016
McCoubrey – Chapters 2 & 3
Bix – Chapter 9
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WEEKEND SCHOOLS 1 AND 2
There are two weekend schools principally for external students. Jurisprudence classes are
held at both Weekend School 1 and 2. Lecture students may attend on the understanding
that weekend classes aim to cover the topics covered in weekly lectures and are held for the
benefit of external students.
It may not be possible to cover the entire course at the weekend schools. These programs
are a general guide, and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of
the topic, and to encourage further reading. You should not rely on them alone.
Weekend School 1: Sunday 29 May 2016: 8.00am – noon in New Law School Lecture
Theatre 024 (New LSLT 024) and 4.00pm – 8.00pm in New Law School Lecture Theatre
024 (New LSLT 024)
TIME:
8am-12noon
MAJOR TOPICS
KEY READING
The Doctrine of Precedent and the
American Realists
McCoubrey – Chapter 9
HLA Hart & Dworkin’s Theory of
Legal Interpretation
Language, Meaning, and
Drafter’s intentions
McCoubrey – Chapters 4, 5 & 6
Natural Law and Positivism
McCoubrey – Chapters 2 & 3
The Philosophy of International
Law: From Kelsen to Human
Rights Theory
Crime and Punishment
McCoubrey – Chapters 2 & 3
McCoubrey – Chapters 5, 6 & 9
TIME: 4pm-8pm
Bix – Chapter 9
Weekend School 2: Sunday 24 July 2016: 8.00am – noon in New Law School Lecture
Theatre 104 (New LSLT 104) and 4.00pm – 8.00pm in New Law School Lecture Theatre
024 (New LSLT 024)
TIME:
8am-12noon
MAJOR TOPICS
KEY READING
Law and Economics – The
Philosophy of Tort Law
The Concept of Property – John
Locke & Robert Nozick
Bix – Chapter 18
Philosophy and the Law of
Property
(1) Kymlicka, W. (2002)
Contemporary Political
Philosophy: An Introduction
Oxford UP, Oxford (p 102-121)
(2) Hudson, B. (2003) Justice in
the Risk Society, Sage
Publications, London (p 3-9)
Waldron, J, ‘Property Law’
Chapter 1 from Companion to
Philosophy of Law and Legal
Theory
5
Philosophy and the Law of
Contract
Benson P, ‘Contract’, Chapter 2
from Companion to Philosophy of
Law and Legal Theory
The Duty to Obey the Law
McCoubrey – Chapters 2, 8 & 10
John Rawls and the Theory of
Justice
Critical Legal Studies, Marxist
Jurisprudence
McCoubrey – Chapter 12
TIME: 4pm-8pm
McCoubrey – Chapters 13, 14, 15
TEXTS AND MATERIALS
Course Materials


Jurisprudence Course Materials (available via the link to the Law Library on the LEC
Webcampus Course Materials section)
Guide to Presentation and Submission of Assignments (available to download from the
LEC Webcampus)
Prescribed Materials
Bix, Brian Jurisprudence: Theory & Context, Sweet & Maxwell, 7th Revised Edition, 2015
Or
Penner, James “McCoubrey and White’s Textbook on Jurisprudence”, 5th Edition, Oxford UP,
Oxford, 2012.
Lecture Outlines
Once you have registered online with the LEC, you will have access to all the facilities on the
LEC Webcampus, including useful links to relevant websites and lecture outlines by Dr
Christopher Birch. All these may be accessed in the Course Materials section of the
Webcampus.
READING GUIDE
In addition to the prescribed readings, students will gain useful background from the following
works which may also be referred to as alternative texts in the event of difficulty in obtaining
the prescribed readings.
Lord Lloyd of Hampstead and Freeman, Lloyd's Introduction to Jurisprudence, 9th Edition
Sweet & Maxwell, 2014
Lloyd's Introduction to Jurisprudence is a very substantial work but has useful introductory
chapters on the major sections providing a good general survey.
Posner, The Problems
Massachusetts, 1993
of
Jurisprudence,
Harvard
University
Press,
Cambridge
6
Posner’s work provides an excellent discussion about many of the contemporary debates in
modern legal philosophy and is particularly recommended for external students who are
unable to attend lectures.
EXTERNAL STUDENTS
External students who are attempting the subject on the basis that they will not be attending
the lectures or the weekend schools should contact the subject coordinator, Dr Christopher
Birch, early in the session to ensure that they have been kept informed of any late changes
to the course outline or materials.
PRESCRIBED TOPICS AND COURSE OUTLINE
The course will consist of 13 lectures and topics.
Topic 1
The doctrine of precedent and the American realists
Do judges really decide cases in accordance with precedents, or does the doctrine of
precedent merely operate as ex poste facto justification? The lecture will examine the
American realists' attack on the doctrine of precedent, in particular Jerome Frank's rule
scepticism.
Basic reading
McCoubrey – Chapter 9
Further reading
Frank, Law and the Modern Mind, Stevens, London, 1949
Topic 2
HLA Hart & Dworkin's theories of legal interpretation
HLA Hart’s theory of law as primary and secondary rules will be examined. Hart sought to
deal with the problem of uncertainty about the meaning of legal rules with his notion that
rules had a determinate core of meaning surrounded by a penumbra of less certain
meanings. In a large body of work created over his lifetime Dworkin rejected Hart’s theory of
law as a set of rules and sought to develop an alternative account of law showing that there
were right answers to legal questions. This interpretative theory of law was most
substantially developed in Dworkin’s work Law’s Empire. The lecture will consider whether
Dworkin successfully defends precedent and judicial rationalism from legal realists and
pragmatists.
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Basic reading
McCoubrey – Chapters 4, 5 & 6
Bix – Chapters 3 & 7
Further reading
Dworkin, Law’s Empire, Fontana, London, 1986
Dworkin, A Matter of Principle, Oxford University Press, Oxford, 1985, chapters 6, 7
Topic 3
Language, meaning and Drafter's intentions
Language is the basic material with which the law operates. Any workable theory of
precedent or theory of legal reasoning must in turn depend upon a coherent theory of
meaning or semantics. The lecture will examine these matters from the perspective of the
current debate about constitutional interpretation and the relevance of the intentions of
drafters of constitutions or statutes.
Basic reading
McCoubrey – Chapters 5, 6 & 9
Further reading
Stokes, Constitutional Commitments Not Original Intentions Interpretation in the Freedom of
Speech Cases (1994) Syd Law Rev 250
Fish, There Is No Such Thing as Free Speech, Oxford University Press, Oxford, 1994,
Chapter 11
Topic 4
Crime and punishment
This lecture will examine the theories of justice that underlie the criminal law and sentencing
policy. The lecture will examine deterrence theories of punishment and the new retributivist
theories of punishment.
Basic reading
Bix – Chapter 9
Further reading
Fletcher, George P, “Punishment and Responsibility” in Patterson, D, Companion to
Philosophy of Law and Legal Theory, Chapter 36, pp514-523
Morris, ‘Persons and Punishment’ (1968) 52 Monist 475
Braithwaite, Not Just Deserts, Clarendon Press, Oxford, 1990
8
Topic 5
The duty to obey the law
What ought our attitude to the law to be? Do we have an obligation to obey all laws or only
those we consider just? On what moral basis, if any, is the state entitled to enforce the law
and in what circumstances, if any, are we entitled to resist?
Basic reading
McCoubrey – Chapters 2, 8 & 10
Further reading
Raz, The Authority of Law, Clarendon Press, Oxford, 1979, Chapter 12
Wolff, In Defence of Anarchism, Harper Torch Books, New York, 1970
Topic 6
John Rawls and the “Theory of Justice”
This lecture will examine some contemporary theories of distributive justice. In particular,
Rawls’ concept of justice as fairness, and Nozick’s concept of justice as rights. These
concepts provide an important groundwork for understanding the analysis of legal doctrine.
Basic reading
McCoubrey – Chapter 12
Further reading
Bix – Chapter 8
Wolff, J, An Introduction to Political Philosophy, Oxford UP, Oxford, 1996
Topic 7
Natural law and positivism
This lecture will commence with a brief examination of eighteenth-century English and
continental jurisprudence, and will deal briefly with the natural law theories espoused by
Blackstone. The attack by Jeremy Bentham on natural law and his development of a secular
materialist analysis of law will be examined in detail. Austin's refinement of Benthamite
positivism will be examined. The positivist concept of sovereignty and law as a command
will be considered.
Basic reading
McCoubrey – Chapters 2 & 3
Further reading
Bix – Chapters 3, 6 & 11
Moens, Gabriel, “The German Bodyguard Cases: Natural Law and the Duty to Disobey
Immoral Laws” in Ratnapala and Moens, Jurisprudence of Liberty, Chapter 8, pp146-164
9
Topic 8
The philosophy of international law: from Kelsen to human rights theory
Kelsen’s theory of norms will be examined and his concept of the norm, the grundnorm and
theory of grundnorm explained. International law and human rights’ theory are also
examined and analysed from a jurisprudential perspective.
Basic reading
McCoubrey – Chapters 2 & 3
Further reading
Ratnapala, Suri, Jurisprudence, Cambridge University Press 2009 – Chapter 3 Bix p57-66
Lloyd p105 p20; pp270-271; 299-303
Topic 9
John Locke and Robert Nozick
Basic reading
Kymlicka, W, Contemporary Political Philosophy: An Introduction, Oxford UP, Oxford, 2002,
pp102-121
Hudson, B. Justice in the Risk Society, Sage Publications, London, 2003, pp3-9
Topic 10
Critical Legal Studies, Marxist Jurisprudence
Basic reading
McCoubrey – Chapters 13, 14 & 15
Topic 11
Law and economics
The law and economics movement has argued that many of our principal legal doctrines and
legal rules have been formulated to reflect principles of economic efficiency. Opponents of
the movement have argued in turn that this fails to reflect the relationship between many
legal doctrines and principles of justice. The debate will be examined, particularly in relation
to explanations about the underlying principles of the modern law of negligence.
Basic reading
Bix – Chapter 18
Further reading
Fletcher, Basic Legal Concepts, London, 1996
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Topic 12
Philosophy and the Law of Property
This lecture will apply some of the philosophical concepts discussed in an earlier lecture to a
number of areas of property law. In particular the course will examine issues about the
nature and basis for succession and inheritance law. Issues concerning the body as
property, and issues related to claims that there can or should be legal restitution for
historical wrongs.
Basic reading
Waldron, J, ‘Property Law’, Chapter 1 from Companion to Philosophy of Law and Legal
Theory, edited by Dennis Patterson, Blackwell, Oxford, 1999 (available in course materials)
Further reading
To be advised
Topic 13
Philosophy and the Law of Contract/Course Review
The first part of this lecture will examine arguments about the basis of contract law. Is
contract law based on a moral obligation to keep promises, or is it better understood as the
application of concepts of economic efficiency? When and why does the law allow
exploitative or unconscionable contracts to be set aside?
Basic reading
Benson P. – Contract, Chapter 2 from Companion to Philosophy of Law and Legal Theory
Further reading
To be advised
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COMPULSORY ASSIGNMENT
In Jurisprudence, there is only ONE ASSIGNMENT. This assignment is compulsory
and must be submitted by all students by the due date. A pass mark is 50%. Refer to
the Guide to the Presentation and Submission of Assignments for the assignment
grading and assessment criteria. Students who fail to satisfy the compulsory
requirements will be notified through the Results screen on the Webcampus before
the examination period of their ineligibility to sit the examination in this subject.
Students must submit a satisfactory assignment of at least 1500 words or as
prescribed. The maximum word limit for the assignment is 2000 words (inclusive of all
footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an
assignment are set out in the LEC Guide to the Presentation and Submission of Assignments
which can be accessed on the LEC Webcampus. Please read this guide carefully before
completing and submitting an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by
11:59pm on the following date:
Compulsory Assignment
Wednesday 6 July 2016
(Week 7)
ASSIGNMENT QUESTION
To obtain the Jurisprudence assignment questions for the Winter Session 2016,
please follow the instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for
detailed instructions). Once you have registered, you will have full access to the
facilities of the LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the
link to the assignment questions for this subject.