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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 4
THE NATURE OF LAW
Introduction
Law displays a dual nature. On the one hand it is clearly a sociological phenomena. We can
observe aspects of law within the spacio-temporal world. We observe courts, police, people
signing contracts, wills, etc., you can imagine law as a subject of sociological or
anthropological study.
On the other hand, law also displays a theoretical or ideal aspect. We can reason about legal
rules using logic or other principles of inference without making any empirical observation.
The 17th and 18th Century natural law tradition Grotius and Puffendorf.
Grotius (1583-1645).
Puffendorf (1632-1694).
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The natural lawyers argued that the sociability of man was one of his essential traits, and that
therefore there had to be rules to govern that social contact. Grotius and Puffendorf argued
that reason was capable of deriving a best set of rules to solve this social coordination
problem. Grotius and Puffendorf believed in God and appealed to God’s existence to
underwrite their systems. However the logic of natural law theory did not depend upon God’s
existence. Reason could be postulated as a self sufficient ground for deriving the rules of
natural law.
Relationship between natural law and customary law
The content of natural law will be influenced by the intrinsic nature of man.
The concept of an intrinsic nature for human kind is itself historically embedded. 16th to 18th
Century natural lawyers believed it was part of man’s intrinsic nature that women bore and
reared children and men worked. Developments in medical science threaten to continuously
overthrow notions of the intrinsic nature of human kind.
Natural law theory with its dependence upon pure reason provided a ground for public
international law. Grotius sought to develop the law of nations through his writings on the law
of the sea, the laws of war, etc.
Natural law theory – English Law
Natural law theory was advanced among English jurists by Blackstone (1723-1780). His
famous commentaries on the Laws of England were published between 1765 and 1979.
Blackstone’s commentaries not merely stated what he understood to be the law of England
but attempted to describe the common law as itself a reflection of natural law.
Jeremy Bentham and Utilitarianism
Bentham (1748-1832) was a philosopher, social theorist, and highly successful advocate of
legal reform. Bentham was a sceptic about the virtue of the common law and advocated
codification. He considered many of the major bodies of English law of the 18th Century to
be archaic and iniquitous, particularly laws in regard to procedure, evidence and the like.
Bentham approached legal issues from the perspective of his utilitarian philosophy.
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April 2004
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Utilitarianism advocated: 1.
The aim of human existence was the maximisation of pleasure and the minimisation of
pain.
2.
Pleasure and pain were psychological qualities that would ultimately be capable of
being measured.
3.
There was one unifying moral principle for resolving all moral issues, namely, that
one ought to do whatever would produce the greatest happiness of the greatest
number.
4.
It followed that there were no moral rights or duties. Rights or duties were created by
positive legal rules
5.
It further followed that the law should be changed or reformed so as to bring it into
conformity with the utilitarian principle.
Bentham and the Command Theory of Law
Bentham considered the natural law theory to rest upon conceptual confusion. David Hume
the famous Scottish philosopher (1711-1776) in his “Treatise of Human Nature” (1739), had
identified the fallacy of seeking to derive an “ought” or moral imperative from a set of “is” or
factual propositions. Only an argument having in its premises a statement of moral obligation
or duty could give rise to a conclusion about moral duty.

Bentham believed natural law theory was confused in believing that moral imperatives
could in some fashion be derived by a process of reasoning from general statements about
the nature of humankind.
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For Bentham a law was simply the command of a sovereign backed by a sanction.
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The sovereign was that body within the community which enjoyed regular obedience.
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A command was an imperative, commanding or prohibiting some form of conduct.

Bentham explained common law rules on the basis that they were tacitly commanded. The
legislature could repeal them if it wished and its tolerance of them was tacit approval or
command of those rules.

A law’s validity had nothing to do with its moral quality. An iniquitous law was still a law
if it was a command of a sovereign backed by a sanction.
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Generally the Benthamite scheme has difficulty accommodating any political system in which
the powers of the supreme body are limited either by the powers of other bodies or by a
written constitution.
Bentham’s utilitarianism and his command theory of law were immensely influential in
English jurisprudence throughout the 19th and 20th Centuries. For the Benthamites the only
law was the positive law of the society, those laws that had actually been commanded or
tacitly commanded by the sovereign.
John Austin (1790-1859) sought to further elaborate the Benthamite scheme in “The Province
of Jurisprudence Determined” (1832). There was clearly a difficulty for the Benthamite
scheme in characterising the sovereign in a federal system such as in the United States. Austin
identified the ultimate source of power as the combined members of the electors of all the
State Governments. This was the body that had power to alter the constitution.
Resurgence of Natural Law Thinking
The aftermath of the Second World War brought about a re-evaluation of positivist legal
theory. In Germany, Gustav Radbruch, who had been a leading positivist jurist, denounced
positivism for having disarmed the German legal profession in the face of Nazism, and argued
that where positive laws were morally iniquitous, and conflicted with fundamental principles
of natural law, they could not claim to be valid laws.
The Hart/Fuller debate focused on whether German courts after the War were right to find
Nazi laws invalid laws for having breached natural law.
The natural law debate was also important in regard to the justification and grounding of the
powers of the Nuremberg Tribunal. The conduct criminalised under the London Convention
which governed the trial were not rules of public international law prior to the war. The
argument that this was ex post facto justice or victor’s justice was met with the argument that
there were natural law principles binding on all human beings and these were reflected in the
London Convention document.
The significance of natural law theory has again emerged in Germany in the East German
Borderguard cases and in one instance the Bundesgerichtsohf held laws of the old GDR
authorising the shooting people crossing the Berlin Wall to be invalid on the grounds that they
violated natural law principles.
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April 2004
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Natural Law and Human Rights Principles in Australian Law
The notion that our constitution implies or depends upon such principles has been raised in
some recent Australian decisions. See in particular: Leeth v Commonwealth of Australia (1991) 174 CLR 455, the judgment of Deane and Toohey
JJ at 4568-459;
Kruger v Commonwealth of Australia (1997) 146 ALR 126; and
Kartinyeri v The Commonwealth of Australia (1998) 72 ALJR 722, the judgment of Gummow
and Hayne JJ at 743.
Should judges rely upon natural law to invalidate positive law?
The occasions when this has happened have usually been ones where there has been a sudden
political transition and a new political consensus condemning past conduct.
It has been argued by two contemporary American jurists that judges ought not to rely upon
natural law reasons in a stable democratic society where the human rights reasons or natural
law reasons are controversial.
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John Rawls’ Concept of Public Reason argues the judges should only appeal to limited
legal reasons to avoid becoming embroiled in intractable moral and political debates.
Cass Sunstein has argued similarly that law involves deploying what he calls “incompletely
theorised arguments”. Judges should not apply their global political and moral views, for in a
multi-cultural and liberal society there will often be grave division over these matters.
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April 2004