Mrs Wasantha Seneviratne
M.Phil in Law, LLB (Hons) Monash Fellow,
Attorney-at-Law
Senior Lecturer, FOL, UOC

 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.

 Jurisprudence consists of the study of the nature of law and its related ideas.
 Examining issues critically and rationally
 LOOK AT THINGS ABSTRACLY

 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.

 The best way to study is to commit yourself to a sustained reading and writing programme from the beginning of the academic year.

 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.

 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
Truepenny
Justice



Statute unambiguous is and must be applied by judiciary notwithstanding personal views
Affirms convictions
Clemency is a matter but recommends for the executive , not clemency the judiciary
Court should join petition to Chief
Executive clemency for

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
Sets
If the laws of Newgarth do apply, then a purposive approach aside must be taken to the statute. Judges can find an exception to the law by implication, as the Courts had earlier done convict with self-defence .
 Principal purpose of the criminal law
– deterrence – ions would not be served by convicting the defendants.

Justice
Tatting


Criticises Foster J's approach


The natural law under the posited "state of nature" prioritises freedom of
Withdraw contract above the right to life
Purposive approach to statutory s from case and interpretation is difficult when there are makes no multiple purposes (here, retribution and decision rehabilitation)
Cannot decide case due to competing legal rationales and emotions

Justice
Keen


Criticises Chief Justice's proposed appeal to Executive for clemency given need to respect separation of powers ; Affirms should only make appeal in capacity as conviction private citizens s
Moral considerations are irrelevant in applying the statute

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 Sets aside punishment or be released convictions
Has heard rumours that the Chief
Executive will not commute the sentence despite strong public opinion




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.



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].

 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.





 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

 ,

 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’,

 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

 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)

 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


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.




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.

 A ‘norm’ in the broadest sense is nothing more or less than a standard against which human behaviour or some other event is assessed.

 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 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.

 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.

 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.

 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 .

 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.





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.

 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 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 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 wideranging 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 selfdetermination and freedom: for women to be treated as fully human.

 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 (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