Jurisprudence Notes 2020-21

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Introduction
Jurisprudence: What is it Good For?

answer, elaborated in this introduction, and then traced throughout the notes, is that
jurisprudence encourages us to think critically and rigorously about the law.

As Freeman has put it:

to develop a wider understanding of the nature and working of law. Questions of

theory constantly spring up in legal practice, though they may not be given very

(Freeman 2015, 1-2)

This is one justification of jurisprudence- and in many ways a compelling one.

Consider, for example, the points Raz makes in the following paragraph:

plays a role in the way in which ordinary people as well as the legal
s. It is part of the

legal theory to advance our understanding of society by helping us

understand how people understand themselves. To do so it does engage in
evaluative judgment, for such judgment is inescapable in trying to sort out
what is central and significant in the common understanding of the concept
(Raz 1994, 237)

Positivism, then, is a
a valuable autonomous

live together; and how law nurtures the common good. We can read this against an
argument put forward by Karin Van Marle:

Struggling with the task of describing the notion of a 'thinking space' in a metaphor,
Hannah Arendt suggested the metaphor of the 'timeless now'. She situates thinking in
a place between past and future. Thinking, central to her notion of natality or new
beginning, could disclose possibilities for the future. Following Heidegger, Arendt
argued that 'thinking does not endow us directly with the power to act'. However,
thinking is crucial to the existence of an active public sphere, democratic politics and
democratic citizenship. For Arendt, the seeds of totalitarianism are to be found in
thoughtlessness - the banality of evil exposed by Adolf Eichmann had its roots in the
inability to think. ' She observes that Eichmann was literally at a loss for words in
cases where he could not rely on cliches or conventional answers. Arendt is interested
in the occurrence of thoughtless behaviour in everyday life. For Arendt, we rely on

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cliches and stock phrases as a defense against reality, and specifically against the call
to thought/thinking Karin Van Marle, Jurisprudence, Friendship and the University as Heterogeneous Public Space
South African Law Journal, Vol. 127, Issue 4 (2010), pp. 628-645, 631

Margaret Davies, (2017, 20-21)

jurisprudence:

I have no doubt that a student who in the formative years of his intellectual life
acquires skill in the close analysis of concepts, even if this is pursued to somewhat
"academic" extremes, acquires a technique which is readily transferable to other
fields. It has been my own observation confirmed by many lawyers and pupils that
such a skill is of the utmost value in increasing the student's capacity to deal with the
concrete branches of the law; yet it is not something which can be conveyed, at least
not so well conveyed by simply concentrating on those branches. The level of
abstraction required in the wider analytical inquiries of the sort that I have mentioned
and the complexity of concepts at this level make, I think, of their analysis a unique

H.L.A Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to

Professor Bodenheimer, University of Pennsylvania Law Review, Vol. 105, Issue 7 ,
pp. 953-97

Dream, 161). Most importantly, the informing philosophy was that of analytical
jurisprudence, which allowed Hart to articulate the central problems of jurisprudence
in a very particular way.

meaning of
words in practices that could be analysed to delineate correct definitions- which- in
turn- enabled the distinction between habits, rules and practices, commands, order and
rules that are central to the approach in The Concept of Law. Ordinary language

conventions and practices: ways of thinking and acting (or just doing without

al -analyses are not necessary; indeed,

risk distorting the spirit of ways of thinking and acting that are part of the world-

be d -
1952, The American Journal of Comparative Law, Volume 2, Issue 3, 1 July 1953,
360).

Hart goes on to say:

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 that behind the often deceptive formal structure of every legal system there lurks
an ideology compounded of diverse philosophical, political, moral, and economic

academic lawyer but to the judge and the practitioner, for unless it is learnt there can
be neither an understanding of the actual working of the legal system nor rational

- there are
undoubtedly interesting and strange currents in his thinking of law: he is no apologist
- but- promotes the idea of jurisprudence as a training in
thinking.

Where might jurisprudence take us?

When the positivists pick up on questions of community, it is precisely the autonomy

of the law that enables to pursue their ends in civil society their versions of the good
life that the state must enable but cannot define. There is, in fact, a debate amongst the
canonical schools of jurisprudence over the precise operation of these terms. For
instance, contemporary natural lawyers have a different understanding of the
relationship of law to morality; those committed to interpretative schools of
jurisprudence ( i.e. neither positivists or natural lawyers) have yet another approach.
But, as all these expressions of contemporary jurisprudence are variations of liberal
political thinking, what they share is a notion of a state limited by law. This places
demands on both law and the state- but- for certain political ends: in other words, the
achievement of communities in which people are free to pursue their own ends.

One might think, then, that the autonomy of law achieves a kind of social
heteronomy- to the extent that liberal political thinking sees the ends of social
organisation as forms of self-creation and living well: structures of the social world
whose basic conditions can be defined, but, whose content and ends must be
determined by individuals acting alone or in consort. This understanding of
heteronomy is, though, limited. From a Marxist perspective, it contains too many
uncriticised assumptions about the nature of class power; from a feminist perspective
it perhaps assumes too much about heteronormative social arrangements and the
gendered division of labour. From these perspective, then, liberal jurisprudence
appears somewhat partial: a particular form of power that holds in place a definition
of law and a vision of the social world. As a goad to further thinking, we can relate
these concerns to the following passage about the law written by the philosopher
Hannah Arendt. Arendt argues that the task of law is:

community is continually endangered by the new men born into it. With each new
birth, a new beginning is born into the world, a new world has potentially come into
being. The stability of the laws corresponds to the constant motion of all human
affairs, a motion which can never end as long as men are born and die. The laws
hedge in each new beginning and at the same time assure its freedom of movement,
the potentiality of something entirely new and unpredictable, the boundaries of
positive laws are for the political existence of man what memory is for his historical
existence: they guarantee the pre-existence of a common world, the reality of some

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continuity which transcends the individual life span of each generations, absorbs all

Hannah Arendt, The Origins of Totalitarianism (1951)

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Imperative or Command Theorise of Law

Thomas Hobbes (1588-1679)

Leviathan (1651)

6
Extracts from

Competition ; Secondly, Diffidence ; Thirdly, Glory. [62] The first, maketh men
invade for Gain; the second, for Safety; and the third, for Reputation. The first use
Violence, to make themselves Masters of other mens persons, wives, children, and
cattell; the second, to defend them; the third, for trifles, as a word, a smile, a different
opinion, and any other signe of undervalue, either direct in their Persons, or by
reflexion m their Kindred, their Friends, their Nation, their Profession, or their Name.
Hereby it is manifest, that during the time men live without a common Power to keep
them all in awe, they are in the state that in conclusion is called Warre ; and such a

not in actuall fighting ; but in the known disposition thereto, during all the time there

To this warre of every man against every man, this Warre, also is consequent; that
nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have
there no place. Where there is no common Power, there is no Law: where no Law, no
Injustice. Force, and Fraud, are in warre the two Cardinall venues. Justice, and

Qualities, that relate to men in Society, not in Solitude. It is consequent also to the
same condition, that there be no Propriety, no Dominion, no Mine and Thine distinct;

thus much for the ondition, which man by meer Nature is actually placed in ; though
with a possibility to come out of it, consisting partly m the Passions, partly in his

THE RIGHT OF NATURE, which Writers commonly call Ius Naturale, is the Liberty
each man hath, to use his Nature own power, as he will himself, for the preservation
of what his own Nature; that is to say, of his own Life; and consequently, of doing
any thing, which in his own Judgement, and Reason, bee shall conceive to be the

Hobbes describes the second law of nature in the following terms:

and be contented with so much liberty against other men, as he would allow other
men against himself

This allows Hobbes to talk in terms of the contract:

In the state of nature, contracts are void, because there is no common power to
enforce them:

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 ower set over them both, with right and force sufficient to

nature, but these are the most important for our purposes)

From the covenant (contract), we can move to:

final cause, end, or design of men (who naturally love liberty, and dominion
over others) in the introduction of that restraint upon themselves, in which we see
them live in Commonwealths, is the foresight of their own preservation, and of a more
contented life thereby; that is to say, of getting themselves out from that miserable
condition of war which is necessarily consequent, as hath been shown, to the natural
passions of men when there is no visible power to keep them in awe, and tie them by
fear of punishment to the performance of their covenants...The commonwealth is
instituted when all agree in the following manner: I authorise and give up my right of
governing myself to this man, or to this assembly of men, on this condition; that thou

(Hobbes 1909 85)

Hobbes, Leviathan (1OUP 1909, pp96, 98, 99, 100, 101, 105)

Commentary: The Laws of Nature

Hobbes argues that the state of nature is a miserable state of war in which none of our
important human ends are reliably realizable. Happily, human nature also provides
resources to escape this miserable condition. Hobbes argues that each of us, as a
rational being, can see that a war of all against all is inimical to the satisfaction of her

and to do those things necessary to secure it, when they can do so safely. Hobbes calls

people to submit to political authority. They tell us to seek peace with willing others

the authority of a sovereign, and further direct us to keep that covenant establishing
sovereignty.

When people mutually covenant each to the others to obey a common authority, they

a conqueror, they covenant for protection by promising obedience, they have

establishing sovereignty, according to Hobbes, and their underlying motivation is the

same namely fear
involves both the renunciation or transfer of right and the authorization of the
sovereign power. Political legitimacy depends not on how a government came to

8
power, but only on whether it can effectively protect those who have consented to
obey it; political obligation ends when protection ceases.

While Hobbes insists that we should regard our governments as having absolute

commands. He argues that subjects retain a right of self-defense against the sovereign
power, giving them the right to disobey or resist when their lives are in danger. He
also gives them seemingly broad resistance rights in cases in which their families or
even their honor are at stake. These exceptions have understandably intrigued those
who study Hobbes. His ascription of apparently inalienable rights what he calls the
seems incompatible with his defense of absolute
ion to
subjects extinguishes their obligation to obey, and if it is left to each subject to judge
for herself the adequacy of that protection, it seems that people have never really
losophy has

contemporaries, famously accused Leviathan

pol
this charge can stand up to scrutiny, but it will surely be the subject of much
continued discussion.

https://plato.stanford.edu/entries/hobbes-
moral/?PHPSESSID=0c49551a18d4b339ea39c5022810e628

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Jeremy Bentham (1748-1832)

Karl Marx, Das Kapital, vol.I. Footnote to

Chapter XXII.

The course does not go into great detail on Bentham, but he is a major British
philosopher and has had a profound influence on jurisprudence

There are perhaps some key themes that we can note

1)
2) Utilitarianism: the calculus of pleasure and pain

masters, pain and pleasure. It is for them alone to point out what we ought to do, as
well as to determine what we shall do. On the one hand the standard of right and
wrong, on the other the chain of causes and effects, are fastened to their throne. They
govern us in all we do, in all we say, in all we think: every effort we can make to
throw off our subjection, will serve but to demonstrate and confirm it. In words a man
may pretend to abjure their empire: but in reality he will remain subject to it all the

10
while. The principle of utility recognises this subjection, and assumes it for the
foundation of that system, the object of which is to rear the fabric of felicity by the

J. Bentham, Works, (J. Bowring ed. 1843), Vol 1, 11.

3) Utilitarianism as a way of thinking about law

J. Bentham, Works, (J. Bowring ed. 1843), Vol 1, 308.

96).

4)
political community are (no matter on what account) supposed to be in a disposition

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John Austin (1790-1859), The Province of Jurisprudence Determined (1832)

The matter of Jurisprudence is positive law: law strictly so called, that is, law set by p
olitical superiors to political inferiors. But since by the word law are also denoted, pro
perly and improperly, other objects related to positive law by resemblance or analogy,
it is first necessary to distinguish positive law from those various related objects in oth
er words to determine the province of jurisprudence

A law, in the literal and proper sense of the word, may be defined as a rule laid down
for the guidance of an intelligent being by an intelligent being having power over him.
This definition seems to embrace all the objects to which the word can be applied wit
hout extension of its meaning by metaphor or analogue, and in this sense law compris
es
Laws set by God to men, and
Laws set by men to men.
John Austin, Lectures on Jurisprudence (John Murray 1880, 5)

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political superiors, sovereign and subject, by persons exercising supreme and subo-
rdinate government, in independent nations or independent political societies

Law as Command

of conduct.

and must relate to future conduct. Austin calls

these features of synchronic generality and diachronic generality.

of affecting others with evil or pain, and of forcing them, through fear of that evil, to
.

-or- more precisely- by judges who exercised authority delegated by

the state:

The Law of Nature

. Laws of

alternatively, laws of

done, or generally forborne or omitted, what would be the probable effect on the

13
J. S. Mill, (1806 -1873)

On Liberty (1859)

Chapter 1

absolutely the dealings of society with the individual in the way of compulsion and
control, whether the means used be physical force in the form of legal penalties, or the
moral coercion of public opinion. That principle is, that the sole end for which
mankind are warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. That the only purpose for which
power can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others. His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or forbear because it will
be better for him to do so, because it will make him happier, because, in the opinions
of others, to do so would be wise, or even right. These are good reasons for
remonstrating with him, or reasoning with him, or persuading him, or entreating him,
but not for compelling him, or visiting him with any evil in case he do otherwise. To
justify that, the conduct from which it is desired to deter him, must be calculated to
produce evil to some one else. The only part of the conduct of any one, for which he
is amenable to society, is that which concerns others. In the part which merely
concerns himself, his independence is, of right, absolute. Over himself, over his own

This, then, is the appropriate region of human liberty. It comprises, first, the inward
domain of consciousness; demanding liberty of conscience, in the most
comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and
sentiment on all subjects, practical or speculative, scientific, moral, or theological.
The liberty of expressing and publishing opinions may seem to fall under a different
principle, since it belongs to that part of the conduct of an individual which concerns
other people; but, being almost of as much importance as the liberty of thought itself,
and resting in great part on the same reasons, is practically inseparable from it.
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of
our life to suit our own character; of doing as we like, subject to such consequences as
may follow; without impediment from our fellow-creatures, so long as what we do
does not harm them even though they should think our conduct foolish, perverse, or
wrong. Thirdly, from this liberty of each individual, follows the liberty, within the
same limits, of combination among individuals; freedom to unite, for any purpose not

14
involving harm to others: the persons combining being supposed to be of full age, and

A Note On or the Fact/Value Distinction

.
describe some

evaluate
some aspect of reality, or prescribe some beh

philosopher of the Scottish Enlightenment, David Hume (1711 76), famously

pointed out that one cannot validly infer or derive evaluative propositions from factual

Thus it is fallacious (though unfortunately not uncommon) for people to reason like
, women ought to
bear children, and it is morally good that they do so, and immoral for them to avoid

Marshall et at, Jurisprudence and Legal Theory (University of London, 2004), 59.

See also
https://www.theguardian.com/commentisfree/andrewbrown/2011/apr/13/hume-harris-
scepticism

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(NB: All page refs to The Concept of Law, 2nd Ed. (Oxford: Clarendon, 1998)

The Nature of Jurisprudence

[The Concept of Law] was to provide a theory of what law is which is

both general and descriptive. It is general in the sense that it is not tied to any
particular legal system or legal culture, but seeks to given an explanatory and
clarifying account of law as a complex social and political institutions with a rule-
governed (and in that sense "normative") aspect. This institution, in spite of many
variations in different cultures and in different times, has taken the same general form
and structure, though many misunderstandings and obscuring myths, calling for
clarification, have clustered around it.... My account is descriptive in that it is morally
neutral and has no justificatory aims: it does not seek to justify or commend on moral
or other grounds the forms and structures which appear in my general account of law,
though a clear understanding of these is, I think, an important preliminary to any
useful moral criticism of law
(Hart, Postscript, p 240).

Essential Points

( cf. Dworkin

There are certain persistent features of law: it concerns obligatory aspects of human
behaviour/ there is some kind of link with morality/ it consists of rules.

The three essential questions:

How is law different from orders backed by threats?

How is legal obligation related to moral obligation?
What are rules and to what extent is law a matter of rules?

There is no simple definition of law-

central set of elements which form a common part of the answer to all three (of the
questions).

2) Laws, Commands and Orders

What are the differences between these three words?

words order and obedience,

Cf Commands not necessarily a latent threat of harm- it is founded on an appeal to

respect authority. (note: Hart has to make this argument to make coherent the line of

16
development from Austin to his own work this does not necessarily mean that Hart
aggres

Law as Coercive orders

an order- this is not the model for law, which must be general; even in the case of
criminal law, for which law as a coercive order is the most suitable.

Legal control is control through directions which have to be general (21). Thus, if we
claim the law "addresses" people, "we may both fail to notice an important difference
between the making of a law and giving a face-to-face order, and we may confuse the
two distinct questions: 'To whom does the law apply?' and 'To whom has it been
published'" (22). The idea of law as general directions is coherent with the sense that
law has to be published.

- there

Thus, following Austin, the "simple, though admittedly vague, notion of general
habitual obedience to general orders backed by threats" is "enough to reproduce the
settled character and continuity which legal systems possess" (24).

There is another sense of law that it is necessary to build into the definition: is

"wherever there is a legal system", it must be independent of other systems and

everything under it must be subordinate (24-25), giving examples of the Queen in
Parliament and law in the USSR.

of persons the sovereign, the laws of any country will be the general orders backed by
threats which are issued either by the sovereign or subordinates in obedience to the

3) The Variety of Laws/ The limitations of defining law through sovereignty

Hart makes a distinction between "rules imposing... legal duties" and "those
conferring judicial powers on [a judge] and defining his jurisdiction. For the concern
of rules conferring such powers is not to deter judges from improprieties but to define
the conditions and limits under which the court's decisions shall be valid" (29).

"If an order is reversed [by a superior court for a lower court's lack of jurisdiction], it
is because what the lower court has said either about the law applicable to the case or
the facts, is considered wrong.... It is not what the judge in his lower court has said or
ordered that is wrong, but his saying or ordering of it" (30).

le

A nullity is not really a sanction

17
Power-conferring rules could be viewed, as Kelsen would say, as fragments of laws.
Kelsen's "Law is the primary norm which stipulates the action" interpreted by Hart
means that "There is no law[, for example,] prohibiting a murder: there is only a law
directing officials to apply certain sanctions in certain circumstances to those who do
murder. On this view, what is ordinarily thought of as the content of law, designed to
guide the conduct of ordinary citizens, is merely the antecedent or 'if-clause' in a rule
which is directed not to them but to officials, and orders them to apply certain
sanctions if certain conditions are satisfied. All genuine laws, on this view, are
conditional orders to officials to apply sanctions. They are all of the form, 'If anything
of a kind X is done or omitted or happens, then apply sanction of a kind Y'" (35-36).
"'All rules' [such a] theorist might claim, 'are really rules directing officials to do
certain things under certain conditions.' The rules that certain motions after hitting the
ball constitute a 'run', or that being caught makes a man 'out', are really just complex
directions to officials; in the one case to the scorer to write down 'a run' in the scoring-
book and in the other to the umpire to order the man 'off the field'.

The natural protest is that the uniformity imposed on the rules by this transformation
of them conceals the ways in which the rules operate, and the manner in which the
players use them in guiding purposive activities, and so obscures their functions in the
co-operative, though competitive, social enterprise which is the game" (40).Garett
Wilson at http://www.garretwilson.com/books/conceptlaw.html

4) The Continuity of Law

It is necessary to begin with the imperative theory, but this must itself be refined and
supplemented by a broader theory of the social. Underlying the command theory is

allows it to appear, suggests that jurisprudence must explain a power that defines
-
one.

There is more to the power that holds the social together than obedience:

laws will be obeyed] at

the moment of succession there must, during the reign of the earlier legislator, have
been somewhere in the society a general social practice more complex than any that
can be described in terms of habit of obedience: there must have been the acceptance
of the rule under which the new legislator is entitled to succeed" (55).

This is the whole point of the celebrated discussion of Rex I and Rex II. Hart uses this
notion of the interruption as a way of showing the weakness of the imperative theory.
If it merely sees power as operating in the notion of a habit of obedience, then how

-55)- ideas that take us beyond a simple notion of obedience. It directs

continued by Rex II and accepted by the community at large.

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5) Rules and Habits

Why a rule?
The notion of the rule
links the sovereign to the community; the sovereign is only accepted to the extent that

is essential that a rule differs from a habit: the latter is not self questioning. It returns
us to the darkness of the ground; we simply do something because it has always been
done. A rule appears at the same time as reflective reasoning; a questioning of
behaviour. What, though, are the effects of this questioning? It leads to a notion of
legitimacy.

Explaining legitimacy takes us to the first appearance of the distinction between

primary and secondary rules (although this is not explained explicitly here) We need
to return to the notion of rules. Rules allow the community that we have imagined to
not only have standards of behaviour, but to make reference to other rules that
determine what statements of Rex are to count as rules. This latter rule will mean that

Moreover, if Rex has a right to issue rules, there is also a right to obey him. However,
this is not just a habit of obedience. That there is a right takes us beyond this situation:
there is a way in which the habit itself emerges from its dark ground and can become
questioned. But legitimacy has other elements.

right to rule is legitimate to the extent to which he is himself bound by the rules
that he issues. The notion of right also allows us to account for the continuity of
power. Right refers both to the authority of the existing ruler, and to his legitimate
s

when the monarch takes the throne (or however we are to characterise the legislator)

this mysterious consistency of the law be accounted for, as Hobbes suggested, by the
notion of the tacit acceptance of the old laws by the new legislator? The idea of the

n
to its embodiment in the imaginary community. The legitimacy of any rule
presupposes the continuing acceptance of that rule by the community. To move from
this simple example to a theory of a more complex society means abstracting from
this model, but not changing it significantly. Applying it to the English constitution

law by followi
theory of the reproduction of the social as a whole. Hart does not move in this

social coherence; the - but- is that likely? It is as possible as

a scorer changing the rules of cricket, as a new bats man strides out to the crease.

19
6) Law as the Union of Primary and Secondary Rules

heory of law

1) Statutes apply to those who enact them as well as the population at large. It would
be awkward to think of this as a command (it would have to be a command that
applied to the person commanding)
2) Command is too narrow a category to apply to, say, private legal relationships
these are not really orders backed by threats.
3) Legal rules are brought into being in a way that is not analogous to prescription.
4) The Command theory cannot account for continuity of legislative authority

Key problem: the idea of obedience, order, habit and threat do not operate with an
idea of rules which is essential for an idea of law. Basic definition of rules at this
stage: primary rules-do or refrain from doing certain things/ secondary rules, change
primary rules. This corresponds with a distinction between duties and powers.

rly used this combination of primary and secondary rules is to be found; for it
is clear that the diverse range of cases of which the word law is used are not linked by

7) The Rule(s) of Recognition

rom the combination

of primary rules of obligation with the secondary rules of recognition, change and
adjudication, it is plain that we have here not only the heart of a legal system, but a
most powerful tool for the analysis of much that has puzzled both the jurist and the
political theorist" (98).

Hart has to distinguish between primitive, or customary legal systems, and modern,
complex legal systems.

Primary rules of obligation

Problems:
1) Too simple 2) Unsystematic: they define a set of separate standards; there is no
way of settling doubt; no authoritative text. They are therefore uncertain and
static; difficult to change rules as a whole, or modify individual rules. 3)
Inefficiency of diffuse social power; lack of authoritative determinations; linked to
no official monopoly of violence.

Remedy = Secondary rules

These are concerned with rules themselves

They provide

20
1) A rule of recognition a general characteristic that has to be possessed by all rules.
This allows for systematicity, unity and dynamism. 2) Rules of change 3) Rules of
adjudication (these relate back to the rule of recognition)

The Foundations of a Legal System

The foundations of a legal system: a complex social situation where a secondary rule
of recognition is accepted and used for the identification of primary rules of
obligation

Rule of recognition reference to an authoritative text; to legislative enactments; to

customary practice; to general declarations of specified persons, or to past judicial
decisions in particular cases.

Necessary to distinguish subordination and derivation ( the latter figures in the

command theory) custom and case law are subordinate to statute- this is a rule of
recognition- they are not derived from the command of the sovereign.

Use of an unstated rule of recognition is a characteristic of the internal point of view.

Use in this way manifests acceptance- as does a special vocabulary an external view
would correspond with an observer of the system who states facts that others accept.

influential thinking
on law. The following is a useful summary of the main points provided by John Finnis
in Natural Law and Natural Rights ( Oxford: Clarendon, 1980 266-7)

der

characteristically replaced, in large measure, by a sense of duty motivated by a sense

.

sensitivity to data and language

its equivalents and motivations of the societies which use that term for the purposes,

sociological data (see I.1). For Weber, then, authoritative co-ordination is legal in
character when it operates by way not of an attitude of obedience to persons but of a

rules (normally established intentionally) and principles to be applied to and followed

in particular cases

within their legal powers

New Questions

Where does the rule of recognition come from? Can it only be described in non legal
terms? I.e. it is a product of history? Is it law or fact? It can be seen as a statement of
fact from the external point of view, and a statement of law from the internal point of
view.

21
that it is a habit of obedience only goes so far, because it does not describe all the
aspects of the legal system-
conform to the rules conferring their own legislative powers.

There needs to be an account of the relevant relationship of the officials of the system
to the secondary rules which concern them as officials: crucial is a unified or shared
official acceptance of the rule of recognition containing the systems criteria of
validity. A simple idea of obedience is not enough. A term would have to cover such

Moreover, most people are not conscious of obeying rules as such a rule is thought
of as something demanding action from him under the threat of penalty. Obeying may
be simply a matter of inertia. This of course, does not describe the attitude of judges.

"There are therefore two minimum conditions necessary and sufficient for the
existence of a legal system. On the one hand, those rules of behaviour which are valid
according to the system's ultimate criteria of validity must be generally obeyed, and,
on the other hand, its rules of recognition specifying the criteria of legal validity and
its rules of change and adjudication must be effectively accepted as common public
standards of official behaviour by its officials" (116).

Thus, in summary: two necessary and sufficient conditions for the existence of a legal
system

1) Rules must be generally obeyed

2) Rules of recognition specifying the criteria of legal validity and its rules of
adjudication etc must be effectively accepted as common public standards of
official behaviour by officials.

8) The Idea of Obligation

Law makes kinds of human conduct obligatory.

Example of the gun man who demands that B hands over his money. It could be said
that A was obliged to hand over his money, not that he had an obligation or a duty.

It is necessary to distinguish being obliged and having an obligation.

To be obliged: this is a statement about beliefs and motives. Someone would not be
obliged if the harm was trivial/or there was not reasonable grounds of belief that the
threat would be carried out.

To have an obligation is not the same. The above is not enough to show that A had an
obligation. Facts about beliefs and motives are not necessary for the truth of the
statement that a person had an obligation.

22
Cf. Austin and the irrelevance of motives. For Austin and others obligation is put in
terms of the chance/likelihood of punishment. Statements of obligation are not
psychological, but are predictions/assessments of incurring punishment.

Why is this not enough?

A court will use non compliance as a justification for punishment; this cannot be
accounted for in Austi

Go beyond the gum man example. Before it is possible to understand legal

obligations, it is necessary to understand the general form, and hence the notion of
social rules.

A person has an obligation:

1) There must be rules that make certain types of behaviour a standard. This is the
normal, though unstated, background or proper context for such a statement.
2) The distinctive function of such a statement is to apply a general rule to a
particular person by calling attention to the fact that his case falls under it.

Obligation can imply a rule; but not always the case that where rules exist the
standard of behaviour required by them is conceived in terms of an obligation.

Consider rules of etiquette

Odd to talk in terms of duty and obligation. Why?

Rules are conceived and spoken of as imposing obligations when the general demand
for conformity is insistent and the social pressure brought to bear upon those who
deviate or threaten to deviate is great.

Two other factors must be taken into account when thinking about rules. Rules are:

1) Necessity for the maintenance of social life: forbid violence/encourage honesty.

2) Obligations are thought of as involving sacrifice and renunciation.

The prediction theory cannot describe the normative structure of society, because it
cannot explain how rules and obligations operate: they allow it to be said that a

Internal/ external distinction is meant to explain this

Internal External
Account to yourself Mere observation of regularity
For your own behaviour or pattern

Social signal Natural sign.

23
Point of view takes the

There is always a tension within society between these two view points.

Note:

Dworkin's 1972 paper 'The Model of Rules 1I' caused Hart to change his "practice
theory of rules" first articulated in the 1961 book. According to the strong version of
that theory, promulgated in 1961, for any "duty" to exist in a community there must
exist a "social rule", that is, a practice of convergent behavior among individuals in
that community, where the individuals accept the rule describing that behavior from
an "internal point of view," that is, they accept it as a standard justifying their own
conformity with the pattern and as a basis for criticizing deviation from the pattern.
The strong version of the theory, Dworkin shows, is too strong: the vegetarian who
says we have a moral duty not to eat meat is not asserting that it is the general practice
of individuals not to eat meat; so, too, the American abolitionist in 1825 who asserts
that it is our duty not to hold other human beings as slaves is not asserting the
existence of a pattern of convergent behavior, let alone one which is accepted from an
internal point of view. Thus, the practice theory of rules, Hart now says, applies only
when "general conformity of a group to [the rules] is part of the reasons which its
individual members have for acceptance" of the rules.

Thus, Hart acknowledges that the practice theory is not "a sound explanation of
morality, either individual or social."' But Hart maintains that the practice theory is "a
faithful account of conventional social rules," including "the rule of recognition,
which is in effect a form of judicial customary rule existing only if it accepted and
practiced in the law-identifying and law-applying operations of the courts. 'To
Dworkin's charge that such an account still does not explain how such a rule can
create a duty or reason for action, Hart retorts that Dworkin confuses the claim "that
the participants who appeal to rules as establishing duties or providing reasons for
action must believe that there are good moral grounds or justification for conforming
to the rules" with the claim "that there must actually be such good grounds.
Unfortunately, Hart, even in the Postscript, encourages this confusion. The practice
theory of rules, consistent with the ambitions of descriptive jurisprudence, should be
taken as stating only what is true of social practices that are taken by members of a
community to impose duties, rather than as stating the actual grounds of duties that
arise from social practices. But when Hart speaks of the "general conformity of a
group to" rules as "part of the reasons which its individual members have for
acceptance" of the rules, he invites precisely Dworkin's misunderstanding: he makes it
sound like the fact of convergent behavior is, or needs to be, a reason for acting.
But all Hart needs for his "descriptive sociology" is the far weaker claim that the
existence-conditions for some (not all) talk of "duties" is merely the fact of
convergent behaviour conjoined with acceptance of the rule describing that behavior
r citation), at 23).

10) Validity/Efficacy; what does it mean to say a legal system exists?

Distinguish between validity and efficacy. Validity means: does the rule in question
correspond with the rule of recognition; efficacy means: is the rule obeyed? Unless

24
obedience to the rule is part of the rule of recognition, a rule can be valid without
being effective.

An internal statement about validity presupposes the external statement about

efficacy, but this does not mean that statements about validity mean that the system is
efficacious.

This can also put in perspective the theory that to assert the validity of a rule is to
predict that it will be enforced by the courts. The distinction between the internal
statement that a given rule is valid and the external statement of fact that the system is
generally efficacious allows a re-assessment of the predictive analysis of obligation.
In both cases, the need is to avoid metaphysical questions about the properties of
rules, and relate obligation to observable facts.

statement about validity is a reason for a decision by a judge; it is not merely a

prediction.

The ultimate rule of recognition may be composed of various criteria, one of which
has to be supreme; this is not the command theory.

Criterion is supreme if rules identified by reference to it are still recognized as rules of

the system even if they conflict with rules identified by reference to other criteria,
whereas rules identified by reference to the latter are not so recognized if they conflict
with the rules identified with reference to the supreme criteria.

Difference between relative and unlimited power.

Sense of ultimate there is no rule providing criteria for the assessment of its own
legal validity.

because it can be established by reference to actual practices: the way

in which the court identifies the law, and to general acquiescence in these
identifications.
The rule of recognition can neither be invalid, nor valid but has to be accepted as
appropriate; this can be demonstrated and is not an assumption:

it is generally disregarded, the rule of recognition exists only as a complex, but

normally concordant, practice of the courts, officials, and private persons in
identifying the law by reference to certain criteria. Its existence is a matter of fact.
"There are therefore two minimum conditions necessary and sufficient for the
existence of a legal system. On the one hand, those rules of behaviour which are valid
according to the system's ultimate criteria of validity must be generally obeyed, and,
on the other hand, its rules of recognition specifying the criteria of legal validity and
its rules of change and adjudication must be effectively accepted as common public
standards of official behaviour by its officials" (116).

25
Thus, in summary: two necessary and sufficient conditions for the existence of a legal
system

3) Rules must be generally obeyed

4) Rules of recognition specifying the criteria of legal validity and its rules of
adjudication etc must be effectively accepted as common public standards of
official behaviour by officials.

11) Laws and Morals

and morals include rules governing the behaviours of individuals in situations

make demands which must be satisfied by any group of human beings which are to
succeed in living together..[there will be some prohibition on violence and some
requirement of honesty) there are also important difference between law and morals.

The distinction between the external requirements of law, and the internal
requirements of morality can be clarified by reference to a four point typology of the
difference between law and morality

The characteristics of morality

Importance

Whereas morality derives its force from the social sense of its importance, law does
not- a legal rule might be thought fairly unimportant. It is still a legal rule. If a moral
rule is thought un important, it would cease to function as such.

Immunity from deliberate change

In a legal system old rules can be changed and new ones brought into being through a
definite mechanism- this is not the case of moral rules.

Voluntary character of moral offences

If a person has offended against moral principles, s/he can defend hi/herself by
showing that s/he did so unintentionally- and despite precaution this is not quite the
same in law. Although there are requirements of mens rea in criminal law- difficulties
of proof may mean that the law does not actually investigate mental states, and uses
- or even imposes strict liability.

The form of moral pressure

In morality this relates to a general respect for the moral rules themselves in law the
forms of pressure are unpleasant consequences or physical sanctions.

26
legal system must exhibit some specific conformity with morality or justice, or must
rest on a widely diffused conviction that there is some moral obligation to obey it.
Again, though this proposition may, in some senses, be true, it does not follow form it
that the criteria of legal validity of particular laws used in a legal system must include,

freed itself.

For instance, Mills criticisms of Montesquieu:

Natural laws are descriptive// laws which apply to men are prescriptive

elemental truths about morality and law.

In distinction to the modern view, where the laws of nature yield information
- Natural law doctrine posited
a view of the world where every living thing moved towards its end-
- this remains to some extent in current notions such as the observation that

what regularly happens, and what ought to happen, and as such is unsustainable.
Carried forward from the doctrine, though, is the assertion that the basic end of
humanity is survival. This is a fairly low level assertion but- at least is represents
something of a substratum that still underlies different forms of legal and moral
theory.

s on some very obvious generalisations- indeed truisms- concerning

human nature and the world in which men live, show that as long as these hold good,
there are certain rules of conduct which any social organization must contain if it is to
be viable. Such rules do in fact constitute a common element in the law and
conventional morality of all societies that have progressed to the point where these are
distinguished as different forms of social control. With them are found, both in law
and morals, much that is peculiar to a particular society and much that may seem
arbitrary or a mere matter of choice. Such universally recognised principles of
conduct which have a basis in elementary truths concerning human beings, their
natural environment, and aims, may be considered the minimum content of natural
law, in contrast with the more grandiose and more challengeable constructions which

hav
no reason for obeying voluntarily any rules; and without a minimum of cooperation
given (ibid) voluntarily by those who find that it is in their interest to submit to and
maintain the rules, coercion of other who would not voluntarily conform would be
impossible. The truisms are: human vulnerability; approximate equality; limited
altruism; limited resources; limited understanding and strength of will.

27
 s account of morality?

as law does not require us to praise or accept its content on moral grounds. Moral
criticism of existing laws is on this positivist view every bit as proper as are moral
arguments that might be raised in their defence. Indeed, the separation of law from
morals makes it easier to denounce laws within a legal system from outside it, which
is commonplace in any well- functioning political democracy. There is nothing about
Hart's brand of positivism, nor that of Austin and Kelsen, that requires a glorification
of the state or of the status quo; nor, for that matter, to require its denunciation.
Nothing in that theory makes it wise, or immoral, to undertake acts of civil
disobedience or rebellion. The only point that the theory holds is that if the current
sovereign is challenged, the uncertainties over who is in charge means that practical
conditions make it hard, if not impossible in fact, to decide who is the sovereign over
what territory. But again, the inescapable muddiness in times of crisis does not count
as an objection to the basic theory, which offers a criterion of judgment as to what
counts as sovereignty, not a guarantee that all questions of political order should be
easy to resolve in fact
[...]

The question that remains is whether we can develop some theory of political
morality that tells us whether a political order is just or unjust in its relationship to the
people whom it governs. The question left over after the jurisdictional question is
solved- remember that Austin's title was the Province of Jurisprudence Determined-is
how to formulate some kind of moral approach to the overall subject. In The Concept
of Law Hart sought to address this different question to which positivists do not seek
to supply an answer: what set of rules are 'necessary' in order for any society to
continue to survive as a society and to preserve the condition of those individuals who
live within it? As Hart put the question: 'The general form of the argument is simply
that without such a content laws and morals could not forward the minimum purpose

Epstein, The Not so Minimum Content of Natural Law, 2005 OJLS (25), 219
Legal validity and moral validity

Are not the same thing! One can be under a legal obligation, but this is not necessarily
a moral obligation

The key concern: whether a law considered morally wrong should not be seen as a
"law". Alternatively, would the correct attitude be to argue: 'This is law; but it is too
iniquitous to be applied or obeyed'" (208).

"It seems clear that nothing is to be gained in the theoretical or scientific study of law
as a social phenomenon by adopting the narrower [former] concept: it would lead us
to exclude certain rules even though they exhibit all the other complex characteristics
of law" (209).

28
12. The Rule of Recognition as a Convention

Building on Har

aw is ultimately conventional: That the authority of law is a matter of its

Studies 1982 39 (1), pp. 139-164, at 148.

Coleman argues for the rule of recognition as a coordination convention. The

coordination convention argument stresses that the rule of recognition must not

- them with reasons for

Andrei Marmor, Positive Law and Objective Values (Oxford University Press, 2001),

wing a rule which is a social convention consists in the

Dickson comments:

a common official practice of recognizing certain things as constituting valid law

must be reason-giving, i.e. it must contribute to the reasons why each official accepts

Julie Dickson, Is the Rule of Recognition a Convention Rule, Oxford Journal of Legal
Studies, Vol. 27, No. 3 (2007), pp. 373 402

29
John Finnis: Natural Law and Natural Rights

Introduction

here are many moralities but that it would not be worth spending a moment
trying to make reasonable judgments about what should be done unless there is (at the
level of principles) only one morality, one coherent set of true moral beliefs, one set
of rational principles about what human beings should not do.(To talk about "our
morality" without believing it to be morality is to have cut loose from, repudiated, our
morality, even if one goes on hanging around in its shadow.) One way among other
reasonable alternative ways of talking about the true moral principles is to call
them natural law. But

John Finnis, A Philosophical Case against Euthanasia, etc., in Euthanasia: Ethical,

Legal and Clinical Perspectives John Keown ed., 1995, at 23-35, 46-55, 62-71, esp.
30-31, 68-70.

[...]

reasons we have for choice and action are the basic reasons, the goods and
ends to which the first practical principles direct us. Those goods are human goods;
the principles contain no proper names, no restrictions such as ". . . for me." So it is
not merely a fact about the human animal, but also and more importantly a testimony
to people's practical understanding, that they can be interested in the well-being of a
stranger, whom they will never meet again but now see taking the wrong turning and
heading over a cliff; for it is the same good(s) that the stranger can share in or lose

[....]

Moreover, every such response, in which one is moved by the intelligible good one
can instantiate or protect in the existence of another person, also creates or reaffirms a
relationship between us, additional to the relationship which consists simply in our
both being human. This willed relationship Aquinas calls societas, and it is itself a
basic human good: harmonyamong human persons--friendship, whether in its central
or in one of its secondary forms, neighborliness, fraternity

John Finnis, The Truth in Legal Positivism, in The Philosophy of Law (Oxford: OUP,
2011)

good of individuals living together and depending upon one another in ways that tend
to favor the well-

30
1) What is Natural Law?

(NB. All reference to John Finnis, Natural Law and Natural Rights (Oxford:
Clarendon, 1996)

relationship(s) between the particular laws of particular societies and the permanently
relevant principle

2) Basic Values

This is not moving from fact to value rather it seems to be framed as a mode of

Life (the drive for self preservation and procreation)/ Knowledge (not instrumental
an end in itself)/ Play (performance for its own sake)/ Aesthetics ( the appreciation of
/
Practical reasonableness ( bringing intelligence to bear on a problem/ Religion

3) Practical Reasonableness

This is an orientation towards the seven basic goods-

commitments:

s of human life do not acquire what would

lassically conceived, is simply a

recollectively and /or prospectively reflective expression of this problem and of the

The question of correct method translates into the basic methodological requirements
of practical reasonableness:

i) coherent plan of life, ii) no arbitrary preferences amongst values iii) no arbitrary
preferences amongst persons iv and v ) detachment and commitment, vi) the
(limited)relevance of consequences (i.e. Finnis is not a utilitarian) (vii) respect for

conscience.)

31
4) The Definition of law and the Rule of Law

The central case of law and legal system is the law and legal system of a
complete community, purporting to have authority to provide comprehensive
and supreme direction for human behaviour in that community, and to grant
legal validity to all other normative arrangements affecting the members of
that community (see VI.6). Such large claims, advanced by or on behalf of
mere human beings, would have no plausibility unless those said to be subject
to legal authority had reason to think that compliance with the law and with
ers would not leave them subject to the assaults and
depredations of their enemies, inside or outside the community. The authority
of the law depends, as we shall see at length, on its justice or at least its ability
to secure justice. And in this world, as it is, justice may need to be secured by
force; failure to attempt to resist by force the depredations of invaders, pirates,

merely a matter of effectiveness

a certain form or quality of communal life, in which the demands of the

indifference or individualistic demands for licence but also are recognized as

including the good of individual autonomy, so that in this mode of association

each is enabled to conduct his own life (to constitute himself over his span of
time) with a clear knowledge and foreknowledge of the appropriate common
way and of the cost of deviation from it

Finally, sanctions are part of the enterprise of legally ordering society, an

enterprise rationally required only by that complex good of individuals which
we name the common good. The criminal is an individual whose good is as

deprived of some opportunities of realizing that good. On the supposition

(which I have been making, for simplicity, throughout this section) that the
legal system and social order in question are substantially just, we are bound
by our whole analysis of human good to say that those who defy or contemn
the law harm not only others but also themselves. They seized the advantage
of self-preference, and perhaps of psychological satisfactions and/or of loot,
but all at the price of diminishing their personality, their participation in
human good; for such participation is only through the reasonable pursuit,
realization, and enjoyment of basic goods (264)

Finally, sanctions are part of the enterprise of legally ordering society, an

enterprise rationally required only by that complex good of individuals which
we name the common good. The criminal is an individual whose good is as
nding that the criminal ought in fairness to be
deprived of some opportunities of realizing that good. On the supposition

32
 (which I have been making, for simplicity, throughout this section) that the
legal system and social order in question are substantially just, we are bound
by our whole analysis of human good to say that those who defy or contemn
the law harm not only others but also themselves. They seized the advantage
of self-preference, and perhaps of psychological satisfactions and/or of loot,
but all at the price of diminishing their personality, their participation in
human good; for such participation is only through the reasonable pursuit,
realization, and enjoyment of basic goods. The punitive sanction ought
therefore to be adapted so that, within the framework of its two sets of

personality in offenders, reforming them for the sake not only of others but of

The name commonly given to the state of affairs in which a legal system is

confusion with a particular norm within a legal system). The Rule of Law, the
as been well analysed by recent writers; so

extent (it is a matter of degree in respect of each item of the list) that (i) its
rules are prospective, not retroactive, and (ii) are not in any other way
impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and

people to be guided by their knowledge of the content of the rules; that (vii)
the making of decrees and orders applicable to relatively limited situations is
guided by rules that are promulgated, clear, stable, and relatively general; and
that (viii) those people who have authority to make, administer, and apply the
rules i
applicable to their performance and (b) do actually administer the law
consistently and in accordance with its tenor (270-1).

in a programme of

And here we touch, at last, the reason why the Rule of Law is a virtue of
human interaction and community. It is the reason that I touched upon in
discussing the law of criminal procedure. Individuals can only be selves i.e.
if they are not made to live
their lives for the convenience of others but are allowed and assisted to create

discussed above (see X.3). But it is also the primary value of that notion of
constitutional government (Rechtsstaat) which, often at the expense of some
certainty about the precise location of authority, seeks to guarantee that rulers
will not direct the exercise of their authority towards private or partisan
objectives

The decision to extend legal order into

contract and tort law, new institutions for inspection, complaint-investigation,

33
 forms of harm and economic loss but also by the value of securing, for its own
sake, a quality of clarity, certainty, predictability, trustworthiness, in the
human interactions of buying and selling, etc. And here we touch, at last, the
reason why the Rule of Law is a virtue of human interaction and community.
It is the reason that I touched upon in discussing the law of criminal
procedure. Individuals can only be selves
if they are not made to live their lives for the
convenience of others but are allowed and assisted to create a subsisting

above

Law is not simply an application of the rules of practical reason; its not even a simple
set of deductions made from practical reason. , or even making deductions form it.

determinations from practical reason.

To take an example- l goods are to be used efficiently for human well

- which will, of course, involve rules. The precise nature of these

rules will be determined by a variety of factors, but is not determined by the general
requirement itself:

-
derived from it but not entailed by it even in conjunction with a description of those
particular cir

desirability of stability and predictability in the relations between one

order principles that should also be taken into account- that relate to

5) Natural law and Injustice

Natural law does not assert that an unjust law is not a law

other cases comes simply from their origin. In this sense,

Note: disobeying a single law may weaken the law as a whole with negative
consequences for the public good-
on in a
moral sense-
desirability of not rendering ineffective the just parts of a legal system-

34
not require compliance with unjust laws according to their tenor or legislative intent,
but only such degree of compliance as is necessary to avoid bringing the law as a
whole into contempt. The degree of compliance will vary according to time, place and
circumstance; in some limited cases (judges and administrative officials) the morally
required degree of compliance may amount to full or virtually full compliance, just as

35
Law and Morality
Grounds of Law and Legal Theory: A Response. Legal Theory 2007, 13(3-4), pp.
315-344.

Hart's paradigm, which is the viewpoint of those who accept the rules
and use
viewpoint of those who make the rules and maintain them. So my argument that
any explanatory general account of law (as a kind of institution and social reality
of thought and action) needs to select its descriptive-explanatory concepts from
among those used in sound, conscientious deliberations (say, the theorist's in his
or her real life) is an argument that pivots on the following thought. The internal
viewpoint has a central case that is not the viewpoint of careerists, or conformists,
or traditionalists. And I offer a reason--widely overlooked--for that thought and
for my assertion that the central case of the internal viewpoint is the judgments
and dispositions of those who treat the law of their community
as morally significant. The reasoning is this:

If there is a point of view in which . . . the establishment and maintenance of legal

as distinct from discretionary or statically customary order is regarded as a moral
ideal if not a compelling demand of justice, then such a view point will constitute
the central case of the legal viewpoint. For only in such a viewpoint is it a matter
of overriding importance that law as distinct from other forms of social order

ssential point is that the common good, for the sake of which governance
should coordinate action, includes respect for rights and includes also the rule of
law. Neither rights nor the rule of law should be conceived of as mere side
constraints on the pursuit of common good; they are constituents of the common
good. So the task, or better the responsibility, of new or long-established rulers is
not merely to secure the elemental goods that are the objects of (say) Hart's
primary rules but also to secure the kinds of goods for which (say) Hart's
remedial, secondary rules of adjudication, legislation, and recognition need to be
introduced and maintained. Hence the pivot that I have recalled above from the
argument of NLNR chapter 1. Hence, too, my sketch of the kinds of bad reasons
that motivate governments to resile from the rule of law or reduce it to a sham:
The sort of regime [in question] tends to be (i) exploitative, in that the rulers are
out simply for their own interests regardless of the interests of the rest of the
community; or (ii) ideological, in that the rulers are pursuing a goal they consider
good for their community, but pursuing it fanatically . . ., overlooking other basic
aspects of good in community; or (iii) some admixture of exploitative and
ideological, such as the Nazi regime. None of the types of tyranny can find in its
objectives any rationale for adherence (other than tactical and superficial) to the
disciplines of legality. For such regimes are in business for determinate results,
not to help persons constitute them selves

36
Law and Morals (continued)

John Gardner, Nearly Natural Law, 46 Am. J. Juris. 199 2001

respond to reasons. This is an important aspect of our nature....Our highly developed

capacity to respond to reasons includes the capacity to use norms to guide our actions
and beliefs and feelings and desires and so on. A norm is the same thing as a standard.
Some norms apply to us inescapably just because we are rational beings. These
include, most obviously, the norms of rationality itself, such as the norm by which
one should believe or act only for an undefeated reason. They also include the norms
of logic, such as the principle of noncontradiction, conformity to which makes it
possible for us to engage in reasoning. They also include moral norms. Being subject
to morality is an inescapable part of being rational in much the same way that being
subject to logic is an inescapable part of being rational. And being rational, to repeat,
is part of being human.

It follows that any human being who asks the question "Why should I be moral?" has
already misunderstood either human nature or the nature of morality. To ask this
question is to suggest that one has some rationally intelligible alternative to being
engaged with morality. But one has no such alternative. It is part of human nature to
be engaged with morality; a being with little or no responsiveness to moral norms,
even if otherwise highly responsive to reasons, is rationally deprived. If we are
explaining what a human being is, this one, like the human being in a permanent
vegetative state, is not a suitable example. To hold him up as not only an example but
indeed a model is the basic error of modern economics. It is no answer for economists
to say that homo economicus does respond to moral norms whenever it is rational for
him to do so. For this response uses a debased notion of the rational according to
which morality is something from which one could rationally disengage, and hence
for engaging with which one needs further (non-moral) reasons. In fact, being
responsive to morality is an integral part of being rational, and so needs no (further)

[This is not] the thesis that, for a rational being, nothing can conflict with moral
norms, nor is it the thesis that moral norms override everything with which they
conflict. Human beings almost always have their reasons, often nakedly self-
interested reasons, for their knowing failures to conform to moral norms. That human
beings are prone to allow moral norms to be too easily defeated in conflicts with
naked self-interest, and hence often need incentives to improve their moral
conformity, does not show that their engagement with morality is rationally
escapable. Once again, it shows nothing more than a tendency for rational agents to
make rational mistakes, this time mistakes about the relative importance of their own

Legal norms answer to rationality. Unlike moral norms, they do not form an
inescapable part of rationality. An unjustified moral norm is an oxymoron; an
unjustified legal norm is always a live possibility. It follows that law is humanly
escapable in the relevant sense (even if it is also humanly necessary).

[....]

37
Raz develops the same line of thought in much greater detail as applied to law. He
explains that law always claims legitimate authority even though it does not always
enjoy such authority. One cannot understand law without understanding this claim,
which is a claim to be morally binding. Thus one cannot understand law that is not
morally binding except as a deviation from the central case in which law is morally
binding. More generally, says Raz, one cannot understand detached normative
statements except by understanding their committed counterparts, for detached
normative statements are parasitic statements made from the imagined point of view
of one who is committed to them. These thoughts are consonant with Finnis's. They
show that any criticism that Finnis has to make of "legal positivists" for their
supposed reluctance to see law through the lens of its central case is
exaggerated. Both Hart and Raz espouse versions of the "central case" approach and
both can find room within that approach to recognize law's distinctively moral nature
without abandoning their interest in the other features that all law (including the limit
case of immoral law) has in common, some of which are independent of its moral
nature (for they are also held in common with games, recipes, etc.).

38
Law and the Common Good

Tex. L. Rev. 41 1999

The common good is an important concept for Finnis, and one that informs his
discussion of the basic goods in Natural Law and Natural Rights. However, it one is
not careful, his approach can appear somewhat mechanical. To grasp the vitality of
his thinking, it is worth looking briefly at a piece published a while ago but still useful
where Finnis links together the common good and basic goods.

but-
practical reasoning about human character and possibility. (Finnis 1999, 44). If the
basic goods a

by reference to the
theology, as well as the requirement specified in contemporary philosophy that moral
statements are universalisable (Finnis 1996, 107) .

The most important thing to grasp is that Finnis is engaging in a way of thinking and

terms, it goes something like this: if I think something is a good for me, then surely it
is a good for you. However, this is not a final statement: it is an invitation to debate

yourself: work out what you think your own basic goods are, and then talk with your
family and friends: what do you share?

For Finni
what most people (not necessarily all!) would agree upon.

calculus or captured through utilitarian or narrow consequentialist reasoning (i.e.

arguing that one end is better than another- for instance, economists might argue that
the most efficient distribution of goods is the most desirable. Finnis would disagree.
The basic goods are good in their own right. An example would be religion. To have
faith is in itself, for Finnis, a good thing. It makes life valuable. It would follow that
faith cannot be distributed or understood through economics).

However, Finnis does assert that there is an e

human goods and avoiding what is opposed to them, one ought to choose and
otherwise will those and only those possibilities whose willing is compatible with a
-5). This nuances the argument
a little. consequentialist metrics of pleasure or utility are incompatible with the
holistic grasp of human fulfilment.

39
This may give us some sense of the moral good at stake, but what about the notion of
commonality? What is the -being and the well-being of

importance of this theme, terms l

to define with precision. However, if we allow the basic insights of common sense,
then we can grasp the fundamental terms of the argument. A community is a
the overlapping relationships
mentioned above) -
-

There are three different ways in which forms of collaboration towards common ends
can be mo - are those in which a particular

play or pl

collaboration towards both means and end, but, is distinct because it realises the
-
central importance for Finnis, as it achieves the kind of relationship that the Christian
golden rule articulates: an intimate sense of the importance of the other; or, rather,

as a device for ensuring impartiality or fairness in practical reasoning, is simply an

(Finnis 1996 143) but nevertheless takes friendship as its key point of reference.
Community in the full sense- takes place when there is a mutual commitment
- -
constitution of others to the extent that all participate in the realisation of human
goods. It is worth noting that this is not thought of in terms of a contract or a
promise -
ossibility of a radical argument is
immediately headed off. The threat of a form of communism-
Republic-
something that one can give: friendship, in this sense, requires something like private
property. However, more importantly, the correct sense of friendship requires nurture

that common stock of uncalculated affection [and supp

emotional responsiveness to become a true friend.

Working out how we move from the family to friendship can give us a much clearer
sense of what Finnis means by the overlapping relationships that are essential to

40
community in it
opposed to subsiduarity. The term relates, first of all, to the necessary nurture of the
-
that, in friend

meaning of the term- assistance- (from the Latin subsidium) reminds us of the
starting point of this exposition: a community is about cooperation and shared purpose
through which both individuals and the community are defined. Relationships are then
figured on a continuum that runs from the family, to the neighbourhood to larger
forms of organisation. Subsiduarity is also a principle which supplements the family
with the benefits of broader forms of association- -

, and foster the realization of each

community comes problems of coordination - but-

Only now has Finnis set up a sufficiency rich context in which to turn to law. Law
relates to the terms in which complete community is lived. The characteristics of a
legal system is
(a claim which in the hands of the lawyer becomes the artificial postulate that legal
systems are gapless); (ii) they therefore claim to be the supreme authority for their
respective community, and to regulate the conditions under which the members of
that community can participate in any other normative system or association; (iii) they

from other a

and supremacy without pretending to be either the only association to which their
members may reasonably belong or the only complete community with whom their
members may have dealings, and without striving to foresee and provide substantively

(Finnis 1996 , 149). The next paragraph is equally as important:

the viewpoint of practical reasonableness, in the requirement that the activities of

individuals, families and specialised associations by co-
149).

to a notion of the common good and to a broader account of community. Once these
elements are in place, Finnis turns to consider law, and the relationship of this social
institution to what, for Finnis at least, are privileged terms. It is perhaps important to

Finnis is inviting the reader to engage in a discussion of the goods that one believes

41
are important. It seems entirely authentic to this most social of jurisprudences that it
should begin with a conversation with a friend.

42
Lon L. Fuller and Natural Law

1) The Inner Morality of Law

"What I have called the internal morality of law is ... a procedural version of natural
law ... [in the sense that it is] concerned, not with the substantive aims of legal rules,
but with the ways in which a system of rules for governing human conduct must be
constructed and administered if it is to be efficacious and at the same time remain
what it purports to be" (Fuller 1965, 96- 97).

writings is by now thoroughly familiar: law is the enterprise of subjecting

human conduct to the governance of rules. Unlike most modern theories of
law, this view treats law as an activity and regards a legal system as the

bjecting people's
conduct to the guidance of general rules by which they may themselves orient
their behavior" (Fuller 1965, 65).

"the analytical positivist sees law as a one-way projection of authority, emanating

from an authorized source and imposing itself on the citizen. It does not discern as an
essential element in the creation of a legal system any tacit cooperation between
lawgiver and citizen -- morally or immorally, justly or unjustly, as the case may be.
The positivist philosophy asks of law not what it is or does, but whence it comes. Its
basic concern is with the question, 'Who can make the law?'"( Fuller 1965, 192).

The idea of the inner morality of law has nothing to do with ideas of natural law that
stress its divine origin the inner morali
carpentry, or at least those laws respected by a carpenter who wants the house he

96-99).

Fuller contrasts the inner morality of

This takes us back to the notion of the inner morality of law as essentially procedural,

of procedural morality has the key sense of describing not

governing human conduct must be constructed and administered if it is to be

efficacious and at the same time remain

Most positivist critiques concern substantive natural law but the relative absence of
engagement with the inner morality of law can be accounted for in a different way. It
has simply seemed to obvious to assert that, for instance, law should not contradict
itself.
natural law. (Fuller 1965, 99)

43
the guidance and control of general rules). If this is absent,

then we lose any way of assessing whether a legal system as a whole achieves a
standard of legality. So, if positivism merely asserts that

extent to which the law making body itself is engaged in purposive activity. Because
this activity is inherently meaningful, we can legitimately analyse it in terms of
success or failure. Fuller second point in his critique of positivism is a variation on

is understood as the activity

institutional actors. Thus, there is no provision in the American Constitution that

mandates that laws be promulgated, yet this is how institutional actors have

RexI-RexII)

Eight Reasons for the Failure of a Legal System

Law as Procedural Morality or the "internal morality of law"

1. The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
2. Failure to publicize or make known the rules of law.
3. Unclear or obscure legislation that is impossible to understand.
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of the subjects and the ruled.
7. Unstable legislation (ex. daily revisions of laws).
8. Divergence between adjudication/administration and legislation.

"A total failure in any one of these eight directions does not simply result in a bad
system of law; it results in something that is not properly called a legal system at

citizens obligations of fidelity to the law, any more than there can be such a principle
for testing his right to engage in a general revolution" (1964, p. 39).

law necessarily has positive moral value in two respects: (1) law conduces to a state
of social order and (2) does so by respecting human autonomy because rules guide
behavior. Since no system of rules can achieve these morally valuable objectives
without minimally complying with the principles of legality, it follows, on Fuller's
view, that they constitute a morality. Since these moral principles are built into the
existence conditions for law, they are internal and hence represent a conceptual
connection between law and morality.
http://www.iep.utm.edu/n/natlaw.htm

44
[T]he author's insistence on classifying these principles of legality as a morality" is a
source of confusion both for him and his readers.... [T]he crucial l objection to the
designation of these principles of good legal craftsmanship as morality, in spite of the
qualification "inner," is that it perpetrates a confusion between two notions that it is
vital to hold apart: the notions of purposive activity and morality. Poisoning is no
doubt a purposive activity, and reflections on its purpose may show that it has its
internal principles. ("Avoid poisons however lethal if they cause the victim to
vomit"....) But to call these principles of the poisoner's art "the morality of poisoning"
would simply blur the distinction between the notion of efficiency for a purpose and
those final judgments about activities and purposes with which morality in its various
forms is concerned (Hart 1965, 1285-86).

45
Ronald Dworkin: Law and Integrity; the Rights Answers Thesis

Essential Points

1.Dworkin is a critic of positivism; but he is not a natural law thinker

In Law's Empire, Dworkin advanced the idea that law is an "interpretive concept."To
say that law is an interpretive concept is to say, among other things, that we can't
understand the concept unless we understand the value or point of law. And the point
of law, according to Dworkin, is to justify the exercise of coercive power by the
state." If we accept all this, then we are, indeed, led to the conclusion that
jurisprudence can not be purely descriptive: for a jurisprudential account of law must
undertake a normative inquiry into the conditions under which a normative system
claiming to be "law" would, in fact, justify

Brian Leiter, Beyond the Hart/Dworkin debate: the methodology

problem in 2003 48 American Journal of Jurisprudence 17, at 31.

- a way of interpreting a case that

makes our law the best it can be; that best resolves a problem in the light of the moral
resources that the legal tradition offers.

erently
evaluative

A Concept and a Conception; an important distinction: A concept, for Dworkin is

, p. 71). A conception will make a much broader

Constructive Interpretation:. In order to interpret a complex social practice like law,

engage mply observing
and describing. One has a prejudice- an opnion about what one is observing. One is

understanding accordingly.

4.Judge Hercules

Judge Hercules is a thought experiment. The experiment relates to how we can

evaluate legal practices.

practice of his legal system if he accepts, that is, the autonomy provided by its
distinct constitutive and regulative rules then he must accept some general political
Taking Rights Seriously)

46
Judge Hercules links with a broader theory of how judges decide cases:
J]udges should decide hard cases by interpreting the political structure of their
community in the following, perhaps special way: by trying to find the best
justification they can find, in principles of political morality, for the structure as a
whole, from the most profound constitutional rules and arrangements to the details of,

5.Law as a Community of Principle

- a common political and
legal culture that binds together citizens who understand that their rights and duties
are rooted in shared norms. In this way, and by refereing to the principles that animate
the community- law can ultimately justify state violence. In other words, Dworkin
argues that the goal of legal theory is in the final instance- to justify state coercion
to enforce the rule of law. From this perspective- i.e. the idea that law is rooted in the
mores of a common culture, we can also explain another central element of liberal
political theory: the necessity that all are equal before the law. But-
argument also has a more doctrinal application- i.e it can help us think about the
principled nature of legal doctrine. If we have to constructively interpret law- i.e. see
it as coherent and developing in a way that articulates this coherence- then we need to
ensure that each area of law has a consistent intellectual structure. For instance,
criminal law has to develop a theory of mens rea; contract law a clear sense of offer

branches of law would also have to relate to each other in a logical fashion i.e. there
has to be a conceptual difference between say- liability in crime, and liability in a civil
sense i.e. tort.

6.Principles and policies

What are the difference between principles and policies?

improvement in some economic, polit

a principle a standard that is to be observed, not because it will advance or secure an
economic, political, or social situation deemed desirable, but because it is a
requirement of justice or fairness or so

7.

So- how does legal argument work- how does it make use of principles?This takes us
- a case where the law is unclear.

The Hard Case. When a dispute cannot be brought under an existing rule, a positivist
e the case one way or
another.Dworkin would disagree. This returns to the notion of principles Judicial
decisions in hard should be generated by principles (and not by policy). Note: there is
rd cases

47
A judge must choose principles that "figure[] in the soundest theory of law that can
be provided as a justification for the explicit substantive and institutional rules of the
jurisdiction in question" (Dworkin 1977, 66).

This returns to Judge Hercules. Principles are present within the law, but require
interpretation. A Judge has to make an argument that shows how a principle applies in
a case. But, this principle must ultimately be justified by the judge showing that his
e law as he or she perceives it. Dworkin refers to this as

See Riggs v. Palmer.

8. The argumentative attitude

Dworkin- like Hart- would suggest that law is a matter of rules. But, he makes a
fundamentally new point: Law is an attitude of mind. This attitude of mind is that of
one of argumentativeness.:

design from my arguments a computer program that would supply a verdict everyone
would accept once the facts of the case and the text of all past statutes and judicial

Law is about a practice of argument. These arguments make use of the resources of a
legal and political tradition; and it is at this level, that we need to define the law: it is

descriptive in that it is morally

neutral and has no justificatory aims: it does not seek to justify or commend on moral
or other grounds the forms and structures which appear in my general account of

It should be clear from our arguments thus far, that Dworkin does not agree. The
- cases or statutes-
distracts them from focusing on the proper concern of legal theory- the morally
evaluative nature of legal argument.

11. Dworkin, Raz and Positivism

Thirty Years On, Ronald Dworkin, 115 Harv. L. Rev. 1655 (2001-2002)

artificial conceptions of law and authority whose only point seems to be to keep
positivism alive at any cost. Inclusive positivism is worse: it is not positivism at all,
but only an attempt to keep the name "positivism" for a conception of law and legal
practice that is entirely alien to positivism. If I am right in these harsh judgments, a

48
further question arises. Why are legal positivists so anxious to defend positivism
when they can find no successful arguments for it? I shall later offer what I believe to
be at least part of the answer: positivists are drawn to their conception of law not for
its inherent appeal, but because it allows them to treat legal philosophy as an
autonomous, analytic, and self-

Dworkin sets out his argument in the following way. He begins with a summary of

He [Raz] declares, first, that it is part of the very concept of law that law claims
legitimate authority over some group; second, that that claim presupposes that legal
directives are capable of being authoritative; and third, that no directive can be
authoritative unless the content of that directive - what it requires people to do - can
be ascertained without making any moral judgment. The argument, even in that

Why odd?

in the exercise of their responsibility to enforce the law, and to distinguish that from
other judicial acts and decisions that must rely on a different and more controversial
kind of justification. It would be bizarre for such a crucial practical distinction to turn

Dworkin goes on to argue that:

Raz says, "that necessarily law, every legal system which is in force anywhere, has de
facto authority. That entails that the law either claims that it possesses legitimate
authority or is held to possess it, or both."'" What can it mean to say that "the law"

true unless it successfully reports an exercise of legitimate authority. But that would
imply not that morality cannot be a test for law, as Raz claims, but that it must be a
test for law, because, as he recognizes, no exercise of authority is legitimate "if the
moral or normative conditions for one's directives being authoritative are absent.'

He sometimes suggests that when he says that "law" claims legitimate authority he
means that legal officials claim that authority; legal officials do this when they insist
that they have a "right" to impose obligations on citizens and that these citizens "owe
them allegiance" and "ought to obey the law." It is one thing to suppose that legal
officials often make such claims; it is quite another to suppose that unless they make
such claims there is necessarily no law. In fact, many officials do not. Oliver Wendell
Holmes, for example, thought the very idea of moral obligation a confusion. He did
not suppose that legal enactments replace the ordinary reasons people have for acting
with some overriding obligation-imposing directive, but rather that these enactments
add new reasons to the ordinary ones by making the cost of acting in certain ways
more expensive. Whether a community has law does not depend on how many of its
legal officials share Holmes's views. So we cannot make sense of Raz's crucial
personification by supposing it to refer to the actual beliefs or attitudes of officials.

The argument then develops as follows:

49
created were capable of legitimate authority, and he concludes that nothing is law
unless it is capable of legitimate authority. There are at least two flaws in that
conclusion. First, it does not follow from the fact that some laws have legitimate
authority - which is all we must assume to suppose that the officials' claims are
sensible - that nothing is a law unless it is capable of such authority. Legislators who
insist that all of the laws they make impose moral obligations may not believe that all
laws do, or even that all laws everywhere are capable of doing so. They may think
that, just as a conceptual matter, they would make law if they enacted a statute
declaring that the tides must cease to ebb and flow, though this would be a silly law
that of course could not create any moral obligations.

S
confused about the concept of authority because "given the centrality of legal
institutions in our structures of authority, their claims and conceptions are formed by
and contribute to our concept of authority."'- But there may not be any conception of
authority that counts as "our" conception. Just as different people even within a single
community may hold different conceptions of liberty, so they may hold different
conceptio

We can consider briefly another couple of themes in the argument. Dworkin considers

t presented as,
someone's view of how its subjects ought to behave. Second, it must be possible to
identify the directive as being issued by the alleged authority without relying on
reasons or considerations on which [the] directive purports to adjudicate.

The first of these two conditions is puzzling. If we take it literally, it means that very
little of the legislation or common law of the United States can be authoritative. An
ordinary statute is a compromise of the views of many different legislators and other
influential actors in the political process, such as industries, lobbyists, and citizens'
groups. It rarely represents, or is even presented as, the views of any single legislator
ncapsulates his
distinctive view of the point of authority: Authority, he says, occupies "a mediating
role between the precepts of morality and their application by people in their
certain
attitude toward authority. People must decide whether they accept a particular

authority that almost no one shows in modern democracies. We do not treat even
those laws we regard as perfectly valid and legitimate as excluding and replacing the
background reasons the framers of that law rightly considered in adopting it. We
rather regard those laws as creating rights and duties that normally trump those other
reasons. The reasons remain, and wesometimes need to consult them to decide
whether, in particular circumstances, they are so extraordinarily powerful or important

hat does Dworkin mean? Raz is

50
nothing can count as an authority if those putatively subject to it must engage in moral
reflection to decide whether to obey it or what it has said. It follows from that
conceptual truth, given the conclusions of the earlier steps of Raz's argument, that

Is this an accurate claim? Dworkin argues by example:

onsider the following extreme example. Suppose a nation's legislature adopts a law
declaring that henceforth, on pain of severe criminal punishment, subjects must never

conceptual mistake to describe the statute as law at all. Even in this extreme example,
his claim seems too strong. The statute, after all, has normative consequences for
those disposed to accept its authority. They now have an additional reason to reflect
carefully on the moral quality of everything they do and to act punctiliously, not only
because they are now subject to official sanction, but also because their community
has declared, through its criminal law, the cardinal importance of moral diligence.
They would not be making a conceptual mistake if they said they were behaving
differently out of deference to the authority of the new law. They would not say,
however, that the statute had merely empowered standards. If they were jailed for an
act they thought scrupulously moral, they would insist they had been jailed contrary to

authoritative a rule or principle that incorporates a moral standard. Suppose that a

businessman in a trade where "caveat emptor" prevails converts to a religion whose
sacred text enjoins its adherents to deal "honestly and fairly" in commerce. He will
behave differently, and he will sensibly say that in doing so, he is deferring to the
authority of his new religion - even though he must ponder the same reasons he
always had to decide what that authority commands. Suppose he wonders one day
whether it would be unfair not to disclose an evident defect to a buyer who has not
noticed it. If he decides that it would be unfair and discloses the defect, he can
sensibly say that he has deferred to religious authority. Sacred text forbids what is
unfair; non-disclosure is unfair; therefore sacred text requires disclosure. It would be
inaccurate to say that the sacred text has not directed him to disclose, but only to
consider whether non-disclosure is unfair. His religion tells him to avoid what is
unfair, not to avoid what he judges to be unfair. If he decides after careful reflection
that non-disclosure is perfectly fair but years later changes his mind, he will then

51
Joseph Raz: Hard Positivism- or- Practical Reason and the Authority of Law

1.Raz is a positivist who explicitly acknowledges his debt to H.L.A. Hart:

which is realist and unromantic in outlook. It regards the existence and content of the
law as a matter of social fact whose connection with moral or any other values is
-old question of the
relation between morality and law. In particular it concerns the question whether it is
ever the case that a rules is a rule of law because it is morally binding, and whether a
rule can ever fail to be legally binding on the ground that it is morally unacceptable.
As so often in philosophy, a large part of the answer to this question consists in
rejecting it as simplistic and misleading, and substituting more complex questions

ascertained without resort to moral arguments. Statues and precedents are positivist
considerations where
Note: Although Raz broadly agrees with Hart- there are also arguments between
them- see below (8).

2. The Authority of Law

anywhere,
has de facto authority. That entails the law either claims that it possesses legitimate
authority or is held to possess it, or both. I shall argue that though a legal system may
not have legitimate authority, or though its legitimate authority may not be as
extensive as it claims, every legal system claims that it possesses legitimate authority.
If the claim to authority is part of the nature of law, then whatever else the law is it
must be capable of possessing authority. ....To claim authority it must be capable of
having it, it must be a system of a kind which is capable in principle of possessing the

3. The Paradox of Authority (a) and the Service Concept of Authority (b) and (c)

a. If it is right to do something, it is right to do it. The reason that one gives as a

justification for action is sufficient. As far as justification is concerned, there is
no need for an authority to tell you what to do.
b. What if we held that authority serves our interests?
c. We could call this the service concept of authority- because it explains that we
follow an authority because it is rational and in our interests to do so.

4. Practical Reason and the law

We normally make decisions on the balance of reasons.

Reasons justify actions

52
Legal norms provide pre-emptive reasons: i.e. reasons for doing or not doing
something:

am arguing for claims that authoritative reasons are pre-emptive:

the fact that an authority requires performance of an action is a reason for its
performance which is not to be added to all other relevant reasons when assessing
what to do, but should exclude and take the place of some of them. It will be
remembered that the thesis is only about legitimate authority. It is relevant for the
explanation of de facto authorities because every de facto authority either claims or is
acknowledged by others to be
(The Morality of Freedom, 46).

An essential element of a pre-emptive reason is that it has already taken into account
all the relevant information and facts, and come to a definitive conclusions. This can
be related to law. One reason why a legal rule is authoritative is that the law maker
has considered all the relevant reasons- the rule is thus an authoritative reasons for
action.

balance of reasons and its subjects, by deliberating on the balance of reasons and
laying down rules for its subjects to follow.

5. The Normal Justification Thesis

correctly on the balance of reasons that apply to you if you follow the directives of the

6. Practical Reason and Law: the deliberative and executive phases of practical
reason

Exclusionary reasons are authoritative reason that exclude any other reason for acting.

Deliberative and Executive Reasons

courses of action, terminates when he reaches a conclusion as to what he should do. It

is followed by an executive stage if and when he forms an intention to perform a

the moral considerations that might predominate in the deliberative part of judgement,
and the authoritative instruction that underlies and makes possible the execution of the

and- executive decisions are binding:

concerned, to challenge or query their validity or conclusiveness. To do so is to

reopen the deliberative process, and unless there are limitation on the freedom with

53
This is then concretised by being referred back to the courts of law:

brings us back to the definition of the course of law. It included the fact that they are
guided in part by authoritative positivist considerations, and that they issue
authoritative rulings...This suggests that the law consists of the authoritative positivist
considerations binding on the courts and belongs essentially to the executive stage of
the political institution...of which it is part. The resulting picture has the courts
applying both legal (i.e. authoritative positivist ) and non legal considerations. They
rely on both executive and deliberative reasons, yet the law belongs to the first kind

7. Hard Positivism

Law has to provide clear reasons for action. Raz argues that moral rules are inherently
unclear. They cannot therefore constitute binding, authoritative legal rules.

8. The debate with (a) Soft positivism (Hart) and (b)Dworkin

Soft positivism is also known as inclusive positivism or incorporationalism. Hart is a

good example of a soft positivist, but there are others working in this tradition.

rule of recognition requires judges to treat moral considerations as grounds of law, a

rule of recognition can incorporate moral criteria, so that what the law is will depend,

This is perhaps closer to Hart than Raz. Raz argues that moral deliberation cannot
provide clear reasons for action is somewhat different. Morality could be part of the
deliberative stage of law, but, it could not form part of an authoritative legal rule- or
indeed anything like a rule of recognition.

moral rule can be as clearly articulated as a legal rule. This would allow Dworkin to
claim a much more profound connection between law and morality than Raz would
allow.

54
Kelsen: The Pure Theory of Law

Essential Points

1.The Jurisprudential Context

jurisprudence attempts to elaborate a theory of law that does not look to any

which c

its own terms. This means dismissing sociology:

science] with legal sociology is impossible, for legal sociology focuses on an entirely

legal norms; the concern of legal science is the internal relationship between those

- - it studies the way in

ed presently) relate to each other. We could say,
therefore, that it takes an entirely internal point of view. This does not mean that the
sociology of law is irrelevant. It means that the distinction has to made between what
the matters that a sociologist of law studies, and the focus of a jurisprudence.

coercion, by the systematic use of

sanctions, and is applied by agents or officials authorised by the legal order to apply
sanctions. He says that these two attributes coercion and officialdom mark out

that word is used in connection with legal systems). This, he says, enables the word

This is that a legal norm is a direction to an official to

apply a sanction when certain circumstances arise (159).

If a citizen does something which

gives rise to the circumstances under which an official ought (or may) apply a
sanction, that citizen has not done anything contrary to that norm, simply because it is
directed at the officials. The citizen has instead committed what Kelsen calls,

ry

speaking of the citizen we are only talking of him or her committing a delict, which is

55
fulfilling the condition for the application of a sanction by an official.5 So, in one of

the primary norm, which stipulates the sanction, and this norm is not contradicted by
the delict of the subject, which, on the contrary, is the specific condition of the

2. The Pure Theory as a Science of Law

and to describe its object. The theory attempts to answer the question what and how
the law is, not how it ought to be. It is a science of law (jurisprudence), not legal

thus in the sense of

the above quotation- a general theory of how legal norms relate to each other. This
means that its ambition is descriptive. It seeks to give the most objective presentation
of the law that it can. This means that it must not concern itself (if this is possible)
with questions of politics, or the political function of law. The pure theorist of law
seeks to study law in the way that the natural scientist studies the natural world.

3. Law as a Structure of Norms

concern is with law as a structure of norms. Why does Kelsen refer to law as

-
of the legal s
or any referent external to a system of law is necessary. The second crucial point that

he validity of which cannot be derived from a superior norm we call a

al the different norms of

To understand law as a structure of norms, each norm must derive its validity ( its
place in the legal system as a norm) from a norm that is somehow superior to it.
Consider the following example. What makes the norms of (for example) property
law valid? These norms relate to a wide variety of matters and concerns over real
property; defining structures of ownership, obligation and control. Property law norms
are valid because they are part of the legal system as a whole. In English common
law, this means that they are either derived from common law or statute. The norms
of property law thus derive their validity from the norms that define how to create law
in the English legal system. This would be true for any area of law (contract, tort etc).

description of law, even

- what
the law ought to be;
law. Thus, Kelsen draws a clear distinction between the content and the form of the

56
these certainly

So-

in his view, propositions describing our subjective preferences for behaviour, and he

actually said that he thought that all of our moral judgments are irrational, because
they could do no more than express our feelings or intuitions. In other words, and by
his own admission, Kelsen is a . (p.157)

4. The Grundnorm

What, though, founds the basic norm? Surely this would take us back to a constitution
that determines law making power, and hence to history. Does this mean that Kelsen
has contradicted himself? He has asserted that he seeks to understand the law in its
own terms, but his reasoning seems to suggest that we need to take a historical
constitution into account in order to describe the basic norm. The following paragraph
would certainly bear out the relevance of a constitution for the definition of the basic
norm.

recourse to the first constitution [in this context, the basic norm], which establishes
the validity of all norms. If this constitution [the basic norm] is valid, the norms

-but- as far as legal validity is concerned, we do not need to look beyond

or behind the constitution. The events giving rise to the constitution might be relevant
questions for the historian, but they are not relevant questions for the lawyer.

Grundnorm is, straightforwardly, an

assumption that a set of laws is valid.

Recognition:

presupposition that certain rules are valid. Kelsen explains the ultimate test of
validity by saying that we, or possibly the legal scientist or jurist, presuppose laws to

factual
existence as a test of validity. We just say that it is in fact accepted as the test of
validity by the officials of the United Kingdom legal system. In a sense the basic
norm always has the same content. It is that the constitution should be obeyed or, in

So- to read Kelsen through Hart:

57
accordance with the historically first constitution; it is not the fact of the first
constitution. (You should be careful not to say that the constitution itself is the basic
norm, because the constitution is a fact, not a norm. Rather, the basic norm is: acts
ought to be done in accordance with the constitution.)

(b) Effectiveness is not a sufficient condition for the validity of a legal order, but it is

general

effectiveness of a legal system is a necessary condition for saying it is valid: Kelsen

at all
the old laws in force under the old regime lose their validity because the basic norm
that validated them can no longer be presupposed because the old regime is no longer
General Theory of Law and State pp. 117
theory of revolution arises from his theory of the relationship between validity and
effectiveness: the old laws are no longer effective; therefore, we cannot, logically,
presuppose the existence of a basic norm
(Grundnorm

Problems with the theory of the Grundnorm

- in other words, he

To avoid this error, Kelsen argued that -

i.e. in the account of law offered by the jurist-

- one must presuppose a founding norm. This is a necessary step for

the theory to make sense.

The Authority of Law.

is, that ultimately any statement that any person makes about law must be in his own
terms ultimately justified in terms of an assumption made by him that, legally, this
thing ought to be done.

Raz says that he sees no reason why we should accept this theory since we can more
simply say that laws are normative because they consist of rules. These rules do not
have any ultimate justification but are merely identified by the fact that some people
say, judges and lawyers in fact identify them as laws: all we have to do in order to
identify what the laws are is look to the social facts of what judges and lawyers do to
identify them. Such a better theory, in order to explain how it is that legal rules arise,
Hart has such a theory.

Hart makes the same point in The Concept of Law. There he says that no question of
validity can arise about his rule of recognition because it is the test of what is valid.
All that is necessary to do is to point to the fact that it exists. According to his theory
that means to point to the factual existence of a social rule among the officials of a

58
 to turn on his coming
to think that a norm is necessarily the product of an act of will, and since no act of
will (by any supernatural or other actor) creates the grundnorm, it must count as a
non-

5. Law as an Autonomous System

that only legal communication defines what constitutes future legal

stem that

stress that it is separate from other social systems: it defines itself. It operates in this
way because it is a structure of legal norms. Consider the following example. A
lawyer could not plead in court that his client was not to be held guilty for his
offences because s/he was brought up in poverty and this affected his moral
development. Whilst ideas such as this may be accepted in sociology or psychology,
they would not be accepted in a court unless there was a norm that stated that the
failure to develop morally because of poverty can be used as a defence in criminal

be accepted within the terms of the legal system.

59
Marx, Marxism and Marxist legal theory

Essential Marx

This document is meant to help you with your revision of Marx. It is not free
standing- you really need to read the Study Guide/ your lecture notes, etc. It is meant
to direct you towards some essential ideas and some fundamental points.

basic insights into the law? Why are they significant?

Marx was not writing jurisprudence or legal theory. His work sought to understand
how a capitalist mode of production came into being and perpetuated itself. He
described his objective in different ways- but a key idea is that it offers a critique of
political economy: i.e. the understanding of markets as efficient, fair and democratic.
Marx saw markets as essential to the capitalist mode of production and inherently
inefficient, exploitative, and prone to crisis and waste (as well as creative and very

way of thinking about the relationship between social groups and economic power:

relatively powerless.

Some read Marx as suggesting that capitalism will collapse under its own
contradictions; or will be swept away by revolution; others that Marx requires us to
make sure that the inherently destructive (and creative) aspects of markets are
regulated and controlled, so that they can operate for the common good.

An understanding of law comes out of these mediations. Law is always caught in a

contradiction: it can be used to maintain the class power of the bourgeoisie, but it can
also be used to challenge and limit this power; the same thing could be said about law
and the market: laws can be used to further the
instance) as well as containing the damage that markets cause to the environment.

This way of looking at the law is very different from the varieties of liberal
jurisprudence that we have looked at. The key insight is that law relates to forms of
economic power.

relevant to an understanding of society, economy and law?

Some background is important. Marx was a philosopher as well as an economist. His

philosophy is very distinct, and stands out in relation to the other forms of philosophy

philosophy. Very crudely, this suggest that contradictions and tensions are the key to
understanding the world ( i.e. the social tensions between the bourgeoisie and
the workers; between the market and the common good.) Hegel also looked to history
as a clue to the present. Marx more or less followed this approach. However, whilst
Hegel looked at the history of ideas, Marx looked at the way in which societies and
economic organisation change over time. Hence dialectical or historical materialism:

60
 or contradictions in
each historical society.

Perhaps it is necessary to provide a little more clarification of the term materialism.

understand the world, it is necessary to look at how societies are constructed and how
people live. Ideas are abstractions (they reflect the material world): and how people

His basic point: look at the institutions that a society creates, the way it works; who
has power; etc. It would follow that the key to understanding society, and hence to

organisation. Marx uses a special term for his analysis of economy; the means of
production. He is referring to the ways in which people make their living ways of
producing social wealth- and reproducing any given society (its power structures/
social structures etc). More fully, we could

economic organisation is thus fundamental.

This makes senses- provided we see Marx as giving us some interpretative principles
for thinking about law, society and economy- rather than some pattern or idea of
inevitable change that will happen in some kind of predetermined way (clearly not the
case!) Contingency and chance are important in the study of history and change. This,
and the idea that the only important factor in change is economic organisation, are
- i.e. (in relation to the law)- he fails to

phenomena ( law is a tool that the powerful class or classes use to further their own
power). Although Marx (and Lenin) appear to be saying something like that- this is
not the best way of reading Marx, for reasons outlined below.

understand how its law works. You will also find social struggles over power; and
modes of production coming into tension with each other (feudalism and capitalism,
for example). Law makes sense in this context.

So, if one looks at medieval society in western Europe, for example, one finds that
modes of economic organisation did have an important effect. For instance, if wealth
is bound up with land, then those with land are powerful. Those without land have to
work for those with land: one does indeed find a rural peasantry who were legally tied
to the land of their masters. Of course, there was also a merchant class; merchants had
the social and financial power that comes from trade, and certainly did not have to sell
their labour on the land.

Although Marx was critical of Hegel, he took from him an important idea: society has
to be thought of as a totality of inter-relating parts. Marx took from Hegel, other
philosophers, and the political economists the fundamental idea that this totality must

61
For Marx, this process is driven by Capital. Capital can be understood in our terms as
a totality of instances. It is both a historical process (based on the emergence of
markets), a social process (based on class) and an economic process (based on private
property and profit). The processes that drive capital are inherently expansive. Capital
is forever seeking new markets to create new opportunities for profit. Profits are
distributed amongst the powerful (interest and rent) and claimed by workers as wages.

However- the economy cannot simply be studied on its own. It is itself influenced and
affected by social, political and legal ideas. For instance, the development of the joint
stock company- - allowed investment
in business enterprises which obviously had economic effects.

Marx was very interested in the contract as a legal idea that organises market
exchanges. He was very suspicious of the idea of freedom of contract (how do I as an
employee of a large

change contractual terms (shorten the working day, etc). Thus, a study of the legal

regulate economy.

or conceal various economic relationships. For instance, Marx looked at the legal
notion of ground rent and land ownership to study how landowners are able to capture

for a similar reason. Interest is the way in which those with financial power are able to
capture revenues through dividends, investments etc. These legal and economic
forms, then, are central to the way in which the economy is structured and wealth
which is publically produced- made private.

relate to law?

Marx argues that your sense of your self, or your view of the world, is determined by
your material position in society (this follows from the analysis above). If you have to
sell your labour to survive, your view of the world will be very different from that of a
merchant or a lord. Marx refers to these material positions as class positions. More
lationship to the means of
production.

in the world, and how one views others. Thus,

belief in deference to established authority, his lord and the Church; it may also
include ideas about his or her relationship to family or community. The ideology of a
peasant will be very different from that of a land
world will be determined by the need to maintain his authority. Of course, this

62
 s that it mystifies. Thus, a

If, as we will see, law has an ideological aspect, then it is used primarily to preserve
or further the interests of a particular class. This is thus a very different approach from

riven with social struggles, it means that there is always the possibility of seeing
through a ruling ideology, and coming up with ideas that do capture the reality of the
world and its inequalities. It would follow that alternative uses of law, and alternative
ideologies of law are possible: thus- the law can be used to further the common good,
restrain destructive corporations, ensure tax revenues for hospitals/ schools etc. It is
not the case that we have to read Marx as suggesting that the only way forward is a
revolutionary destruction of ruling class law and the capitalist mode of production.
The approach taken in these notes presents a different version of Marx.

theory of law; an understanding of the complex relationship between law and

economy; and a theory of law as ideology. These two elements fit together. We could
thus talk of legal ideologies influencing economy and economic ideologies
influencing law. A proper study of (for example) the joint stock company would
probably confirm this thesis. Or think of the concept of ownership; it has elements
of both legal and economic ideologies within it.

What is the significance of the famous base and superstructure metaphor in

base and
superstructure the mode of
production, the organisation of the economy; all other social institutions can be
understood by reference to this essential determinant. This is a useful starting point-
but it is crude, reductive and not a good way of reading Marx (see above).

Indeed, Marx, and later Engels were critical of this reductive view. It would be more
accurate to see that Marx does attempt to think of law as part of a total picture of a
society (a totality), but that this cannot just be related to economy in a simplistic way.
The analysis of interest and ground rent above would be an example (if we assume
that interest and rent are both economic relationships based n ideas of ownership)

For Marx, the state reflects a particular historical fact: what is the central factor in the
modern form of the state?

The state has fallen entirely into the hands of those who own private property and
control the economy- a class that Marx called the bourgeoisie. The bourgeoisie
organises itself politically and takes control of the state. The state (and its institutions)
therefore come to serve the interests of this property-owning class.

63
So, Marx argues that the state rests in class interest. If a class controls the state, then
those aspects of the state that are used to regulate society will reflect those interests.
Thus, the law reflects the interests of the bourgeoisie; the prevailing ideas of justice
and equality, likewise, will reflect those interests.

Ho
able to take control of the state even democratically- they might be able to use state
power to control the market etc. One example of this might be the present Syriza
government in Greece.

The law, however, is only part of the state- it is not the state; the very idea of the
separation of powers in liberal states is important here. Some Marxists argue that law
is inherently conservative and biased towards property interest, and thus will limit
what can be done with the state power to legislate. You might want to read cases

from tax; or, can the

courts compel rich individuals and corporations to fund institutions like hospitals,
schools and universities? This issue opens up some very interesting issues about how
structures set up by certain governments to provide institutions that are funded by
progressive taxation to provide public goods (health, education, etc). The NHS set
up in England by a socialist government after the war is a good example. The NHS
was set up by Acts of Parliament, and there has been an ongoing struggle between
those who want to see health care provided by the market (private health care) and
those who want to see it provided in a more efficient way (why should you have better
health care/ education if you are rich?)

To elaborate: we could see law as essential to the management of the contradictions

immanent to capitalism. Administrative law (the law of the welfare state, our example
above) could be seen as a management of social tensions bound up with
unemployment; international law, an attempt to regulate world markets; criminal law
an element in the regulation of the private ownership of property; and indeed,
property law, as essential to the commodification of land.

How significant is Soviet Marxism and its approach to the law?

The Russian revolution of 1917 is one of the key points in the development of Marxist
thought, and hence also in the Marxist theory of the law. If we accept that 1917 was
indeed a successful socialist revolution, then the ultimate fate of the Soviet Union
must suggest t

these notes is that the approach of the Soviet Marxists is historically important, but
limited to a very narrow reading of Marx relevant to its own context. Ultimately, then,
Soviet Marxism is seen as rather secondary to a contemporary development of a
Marxist theory of law.

What is the significance of Western Marxism?

Its worth knowing a little about Louis Althusser and the western, rather than the
Soviet, reading of Marx. The western Marxists were as critical of the Soviet Marxists,

64
as they were of capitalism. They are thus important in opening up new ways of

of base/superstructure idea of the relationship of law to economy, one has to grasp

more complex inter-relationships. This is more or less the approach taken above.
Althusser also produced a new theory of ideology, which also informs the notes on
ideology above.

It is also worth stressing that the reading of Marx that draws on Western Marxism
does not see class in simplistic terms. Although Marx appears to suggest that there are
two classes: the bourgeoisie (bosses) and the proletariat (workers) he also suggests
that there might be three: landowners, business owners and workers. Towards the end
of his life, Marx was beginning to appreciate that these distinctions were way too
crude- and further
differentiated around ethnicity and gender (think of domestic helpers in Hong Kong).
Western Marxists picked up on these ideas, which are of course of major importance
to think about class structured today; especially with the rise of categories like self-
em those who work in the informal economy without
contracts of legal protection. If you think about these issues, the relevance of what
Marx says about law, economy and society is clear; why can capitalism not create
enough remunerative jobs; why do people have to work so hard for so little.
Capitalism has been very clever in shifting costs of employment onto workers (no
pension rights/ no labour rights etc) to create its own profits which are then hidden
in off shore accounts- so that schools, hospitals, etc are underfunded.

65
Feminism, Law and Legal Theory

Essential Feminism

This document is meant to help you with your revision. It is not free standing- you
really need to read the Study Guide/ your lecture notes, etc. It is meant to direct you
towards some essential ideas and some fundamental points.

How is feminism defined? Why is feminism important?

We have defined feminism as concerned with patriarchal power- and contrasted this
mic power. We have also contrasted this with
the liberal focus of much of the jurisprudence that we have studied. Although, for

issues into proper focus. So--- in very broad summary Feminists and Marxist seek to
relate questions of law back to questions of power. We are thus concerned with a
political jurisprudence; not positivism; natural law or pure theory.

Why does this make for a different approach to jurisprudence?

Feminists and Marxists also seek to show how the law can be used by the relatively

ideas of the rule of law, as an understanding that law is a tool to be used in political
and social struggles.

Depending on your understanding of feminism, you can either see patriarchal power

essentially gendered terms.

So, this begs a number of questions: what is a working definition of patriarchy; and
how do different forms of feminism understand themselves?

The following passage deals with both these points:

At the most general level patriarchy has been used to refer to male domination and to
the power relationships by which men dominate women (Millett, 1969). Unlike
radical feminist writers like Kate Millett, who have focused solely upon the system of
male domination and female subordination, Marxist feminists have attempted to
analyse the relationship between the subordination of women and the organization of
various modes of production. In fact the concept of patriarchy has been adopted by
Marxist feminists in an attempt to transform Marxist theory so that it can more
adequately account for the subordination of women as well as for the forms of class
exploitation. The concept of patriarchy has been used in various ways within the
Marxist feminist literature. To take several examples: Juliet Mitchell (1974) uses
patriarchy to refer to kinship systems in which men exchange women, and to the
symbolic power which fathers have within these systems, and the consequences of
this power for the 'inferiorized . . . psychology of women' (Mitchell, 1974: 402). Heidi
Hartmann (1979) has retained the radical feminist usage of patriarchy to refer to male

66
power over women and has attempted to analyse the inter-relationship between this
and the organization of the capitalist labour process. Eisenstein (1979) defines
patriarchy as sexual hierarchy which is manifested in the woman's role as mother,
Feminist
Review (1979) 3, 66 82. doi:10.1057/fr.1979.21

This passage gives some sense of the different forms that feminism takes. Arguably,
the best way to think of feminism is one where patriarchal power is related to
economic power.

Most exam answe

which are well explained by the study guide. It is perhaps better to think of feminism
generally- as an approach to law and power. Thus, the different waves tend to have
different understandings of how central the question of law is to power.

In summary; liberal feminism sought legal rights for women; rights to vote, rights
against discrimination etc. Later waves of feminism, cultural feminism and radical
feminism tend to be critical of this idea of inclusion. In part this was a historical
response to the perceived failure of legal inclusion to alter the power balance between
men and women. Whilst the liberal feminists had stressed the similarity of women and
men, later waves of feminism stressed difference: arguing that rather than simply
equating women and men- law needed to create rights that recognised the specific
problems that women faced.

What is the relevance of Catherine MacKinnon?

MacKinnon is a controversial figure. She is often presented as a Marxist or radical

feminist. Her work sought to show the links between feminist theory and Marxism;
for instance, she tried to equate sexuality with labour; to bring together class and
gender. MacKinnon also worked with Andrea Dworkin on legal redress for women
harmed by pornography. This brought their feminism into a tense relationship with
liberalism, with its concern for freedom of expression. Gayle S. Rubin is also
nti-
presenting women as perennial victims. It is possible to link the material for part B
with material for part A on this point. See the discussion of Lacey and Jackson. Note:
no one is arguing that the law should not take consent/ domestic violence seriously-
the argument is about how women appear in these ways of talking and thinking: the
risk is that women appear as passive victims.

and sexuality?

MacKinnon equates work and sexuality. For Marx capitalism is a vast social and
economic system constructed to further the interests of capitalists. It involves the
exploitation of workers and creates a social distinction between the bourgeoisie and
the proletariat.

MacKinnon sees relations of dominance and control concealed within the everyday.

67
What is the relevance of Carol Gilligan?

is on ethics- or the way in which men and women think and feel. Her work has been
men are different to
men, the law ( and moral thinking) should recognise this difference. However, it is

lly accepts
traditional cultural distinctions between men and women ( women are nurturing; men
are not, etc). Rather than radical thinking, then, this is simply repetition of existing
cultural patterns which discriminate against women by stressing that they are
essentially nurturing - rather than the

Feminists Reading Law

These cases are examples of the ways in which feminist scholars approach law
differently; for instance, focusing on how law can nurture relationships, rather than

How should I approach the feminism question?

The general principles apply: first of all, answer the question! Secondly, you could
bring a feminist perspective into any question (with the over-riding principle- answer
the question that you have been asked). For instance, to what extent does Hart take the
difference between men and women into account in his Concept of Law? Arguably,
he ignores the different ways in which men and women might think about, and

account of the issues raised by Gilligan in her account of ethics. This would suggest
that a basic good might even be the way in which we care for and nurture each other

account the way in which male and female lawyers may interpret the law differently;
-

68
Feminism, Pornography and Legal Theory

"We define pornography as the graphic sexually explicit subordination of women

through pictures and words that also includes (i) women are presented dehumanized
as sexual objects, things, or commodities; or (ii) women are presented as sexual
objects who enjoy humiliation or pain; or (iii) women are presented as sexual objects
experiencing sexual pleasure in rape, incest or other sexual assault; or (iv) women are
presented as sexual objects tied up, cut up or mutilated or bruised or physically hurt;
or (v) women are presented in postures or positions of sexual submission, servility, or
display; or (vi) women's body parts including but not limited to vaginas, breasts, or
buttocks are exhibited such that women are reduced to those parts; or (vii) women
are presented being penetrated by objects or animals; or (viii) women are presented in
scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior,
bleeding, bruised, or hurt in a context that makes these conditions sexual."

practice of sexual

(Dworkin/Mackinnon)
s of dominance over women have been accomplished socially as well as
economically, prior to the operation of law, without express state acts, often in

"Having power means, among other things, that when someone says, 'this is how it is,'
it is taken as being that way. . . . Powerlessness means that when you say 'this is how
it is,' it is not taken as being that way. This makes articulating silence, perceiving the
presence of absence, believing those who have been socially stripped of credibility,
critically contextualizing what passes for simple fact, necessary to the epistemology
of a politics of the powerless."
"Equality thus requires promoting equality of status for historically subordinated
groups, dismantling group hierarchy."

Law as Response to Inequality, Harm and Injustice

Thus, could the law be used to obtain damages/remedies to those who have suffered
harms because of pornography? (cf. the civil liberties approach)

The Antipornography Civil Rights Ordinance (Dworkin-MacKinnon Antipornography

Civil Rights Ordinance or Dworkin-MacKinnon Ordinance) proposed legislation in
the US in the early 1980s. Although some ordinances were passed, the courts struck
them down as violations of the First Amendment.
R. v. Butler ([1992] 1 S.C.R. 452) employed Dworkin/MacKinnon's understanding of
pornography to argue that despite the right to freedom of speech in the Canadian
Charter, obscenity law could be enforced in some circumstances on the basis of the
x equality.

69
Criticisms of MacKinnon/Dworkin

Gayle S. Rubin: Thinking Sex

http://www.feminish.com/wp-content/uploads/2012/08/Rubin1984.pdf

of feminist thought on the subject. One tendency has criticized the restrictions on
our and denounced the high costs imposed on women for
being sexually active. This tradition of feminist sexual thought has called for a sexual
liberation that would work for women as well as for men. The second tendency has
considered sexual liberalization to be inherently a mere extension of male privilege.
This tradition resonates with conservative anti sex discourse. With the advent of the
anti-pornography movement, it achieved temporary hegemony over feminist

The anti-pornography movement and its texts have been the most extensive
expression of this Discourse. In addition, proponents of this viewpoint have
condemned virtually every variant of sexual expression as anti-

This discourse on sexuality is less a sexology than a demonology. It presents most

sexual behavior in the worst possible light. Its descriptions of erotic conduct always
use the worst available example as if it were representative. It presents the most
disgusting pornography, the most exploited forms of prostitution, and the least
palatable or most shocking manifestations of sexual variation. This rhetorical tactic
consistently misrepresents human sexuality in all its forms. The picture of human
sexuality that emerges from this literature is unremittingly ugly In addition, this anti-
porn rhetoric is a massive exercise in scapegoating. It criticizes non-routine acts of
love rather than routine acts of oppression, exploitation, or violence.

The anti-pornography movement and its avatars have claimed to speak for all
feminism. Fortunately, they do not. Sexual liberation has been and continues to be a

retrogressive sexual thinking this side of the Vatican. But it has also produced an
exciting, innovative, and articulate defense of sexual pleasure and erotic justice. This
-
conform to movement standards of purity (primarily lesbian sadomasochists and
butch/femme dykes), by unapologetic heterosexuals, and by women who adhere to
classic radical feminism rather than to the revisionist celebrations of femininity which
have become so common. Although the antiporn forces have attempted to weed
anyone who disagrees with them out of the movement, the fact remains that feminist
thought about sex is profoundly polarized (Orlando, 1982b; Willis, 1982).

Ronald Dworkin

that pornography is a significant cause of sexual crime: many of them conclude, on

70
the contrary, that the causes of violent personality lie mainly in childhood, before
exposure to pornography can have had any effect, and that desire for pornography is a
symptom rather

Anti-
of equality require that some people not be free to express their tastes or convictions
in 1993: 39.) Anti porn legislation would

visceral or emotionally charged expression of any opinion that might reasonably

offend a disadvantaged group. It could outlaw performances of The Merchant of
Venice, or films about professional women who neglect their children, or caricatures

The Importance of Foucault: Power and Sexuality

1. "Power is not something that is acquired, seized, or shared, something

that one holds on to or allows to slip away; power is exercised from
innumerable points, in the interplay of nonegalitarian and mobile
relations" (94).
2. "Relations of power are not in a position of exteriority with respect to
other types of relations (economic, knowledge, sexual), but are
immanent in the latter" (94). Relations of power are also "not in
superstructural positions, with merely a role of prohibition or
accompaniment; they have a directly productive role, whenever they
come into play" (94).
3. "Power comes from below; that is, there is no binary and all-
encompassing opposition between rulers and ruled at the root of power
relations" (94).
4. "Power relations are both intentional and nonsubjective" (94). They are
"imbued with calculation: there is no power that is exercised without a
series of aims and objectives" (95) yet at the same time, "this does not
mean that it results from the choice or decision of an individual subject"
(95). The logic of power can be clear but oftentimes the inventor or
formulator cannot be identified.
5. "Where there is power, there is resistance and yet this resistance is never
in a position of exteriority in relation to power" (95).

(All quotations from the History of Sexuality, volume 1)

Governance Feminism (GF)

feminism disqualify their proponents from inclusion in the power elite. But you can
get a job in the UN, in the World Bank, in the International Criminal Court, in the

GF arose precisely when national governments and international governance bodies

were increasingly incorporating non-traditional political actors, such as NGOs and

71
experts of various civil society associations, in their governance structures and
decision-making processes. Feminists helped to foment this trend in a wide array of
concerted efforts ranging from the UN Conferences on Women to intense advocacy
the international criminal tribunals addressed to the Yugoslavian and Rwandan
conflicts. Domestically these efforts included, for example, concerted pressure to
institutionalize domestic violence and trafficking law reforms, to police deadbeat
dads, to extend rights to reproductive health services, and to convert rape from forced
sex into unconsented-to sex.

At first we thought that the flagship GF successes were all concentrated on sexual
violence and envisioned law as primarily punitive (what Elizabeth Bernstein calls

and international GF today. But the subjects of GF include women in the workplace,
women seeking to have children or end pregnancies, women in the family, women on
corporate boards and women in the public sphere, and GF seems to accommodate
feminists of all stripes. GF has thus hefted every legal tool imaginable, somewhere,
sometime. The forms in which feminists exercise power have tracked the vast
expansion of public/private alliances which now govern human life at every level,
from the local to the international and back. GF and governance-through-NGOs
coconstitu

Whenever feminists came into harmony with legal common sense, and vice versa,
their feminism became expertise. We can find this expertise in the reports of UN
Special Rapporteurs, the policies of the World Bank, as the work of advisors to
governments and ministries, on corporate boards, in corporate social responsibility
(CSR) offices in various corporations, and global NGO supply chains for litigation
and policy strategy. As this process enters its third decade, the merger of certain
feminist projects with legal common sense has been, in some cases, highly successful
in changing laws, institutions and practices. This process has produced immense
changes, most of them positive, in the lives of women, who enjoy more equality, more

But there are costs. Women benefit differentially; some are harmed; and conflicts
among feminists about what worlds to imagine are settled. Merging into the
mainstream can efface the feminist fingerprints on important governance projects and
preclude intra-feminist politics about them. It can consolidate a particularistic,
identity-based project, sometimes at the expense of alternative affiliations that ignore

Thomas et al (http://www.lawschool.cornell.edu/cornell-IL-IR/upload/IL-IR-
Colloquium.pdf)

72
CODA

Some Final Feminist Thoughts about the Nature of Jurisprudence

Attention and Morality

Simone Weil

and also the complexity, of [certain] values. The values of care, attention and ethical
attunement could be used to challenge a simplistic public /private divide, and become
a politics by which traditional and hegemonic practices of suppression and
domination could be contested and even revolted against.

Karin Van Marle ,To Revolt against Present Sex and Gender Images: Feminist
Theory, Feminist Ethics and a Literary Reference, Stellenbosch Law Review, Vol. 15,
Issue 2 (2004), pp. 247-267, pp. 253-259

. . . the possibility of a
shared, collective, deliberate, active intervention in our fate, in what would otherwise
be the by-product of private decisions. Only in public life can we jointly, as a
community, exercise the human capacity to "think what we are doing," and take
charge of the history in which we are all constantly engaged by drift and inadvertence
.... [The distinctive promise of political freedom remains the possibility of genuine
collective action, an entire community consciously and jointly shaping its policy, its
way of life. . . . A family or other private association can inculcate principles of
justice shared in a community, but only in public citizenship can we jointly take
charge of and responsibility for those principles we are not mature as moral actors
until we have become self-governing, have [taken] ...responsibility not only for our
actions but also for the norms and principles according to which we act. As long as
we live only by habit or tradition, unaware that they mask an implicit choice, there is
something about ourselves as actors in the world that we are not seeing and for which

Hanna Pitkin, Justice: On Relating Private and Public, 9 Political Theory, 327, 344-
45 (1981)

as an approach that would be more attentive to particularities, to context and lived

experience. I have contrasted this approach with traditional/formalist approaches to
law - that an emphasis on law's generality and universality could result in speedy

73
decisions that negate the complexities and nuances of life. In that context I have
distinguished between two divergent approaches to language and memory. The one,
by being aware of the materiality of life, recognises the multiple meanings of words
and holds the past as something that will always be open for re-interpretation -
remembering and memory ask for slow contemplation in order to notice the
specificity, the detail and therefore the complexity of meaning and of events. The
other approach, by focusing more on abstract ideas and grand notions of the past,
monumentalises in a quick and solid fashion, fix
Karin Van Marle, Jurisprudence, Friendship and the University as Heterogeneous Public
Space
South African Law Journal, Vol. 127, Issue 4 (2010), pp. 628-645, 636

74
Jurisprudence Essay Writing
And Suggested Solutions

75
How to Write a Jurisprudence Essay
positivism and liberal political
philosophy are related fields of inquiry. Liberal political philosophy provides

The first three steps of answering an essay question

The first thing to do is to read the question, and to break it down into its relevant
parts. You can use the punctuation as a clue. Thus, the question above is concerned,
first of all, with the history of positivism. It links this history to a relationship between
positivism and liberal political philosophy and then specifies that it is this history and
relationship that gives positivism its main concerns.
To answer the question, you need to deal with these matters.
Remember that you need to make an argument. An argument begins with a

this kind of instruction as asking you to judge a statement true or false/ accurate or
inaccurate. Your judgement must be backed up with evidence to persuade the reader
why your judgement is correct. Evidence, in this context, means your knowledge and
understanding of jurisprudence. The more persuasive and better informed the
argument, the more successful the essay.
So, the first three steps in essay writing are: (1) Read the title and the instruction (2)
Ask yourself, do I agree or disagree with this statement (or is it accurate or inaccurate)
(3) if you think you agree, why do you agree// if you disagree, why do you disagree?
(3) obviously requires you to have some knowledge of the subject. The more
knowledge you have, the more informed your judgement should be. You can, of
course, be wrong. For instance, it would be very difficult to argue that there is no
relationship between jurisprudence and liberal political philosophy, or, that the
distinctive themes of positivism do not come from liberal political philosophy. Be
guided by the presentation of the subject in the lecture/ lecture notes and text books
that you have read. The most straight forward way of answering this question, might
thus be to agree with the statement.
Steps 1-3 are to do with how you orientate yourself to the question you have been
asked.
Step 4 is about planning your answer.
Step 4: Planning Your Answer
As noted above, your answer must respond to all the points raised by the question.
This should give you a sense of the main divisions of your argument. Thus, to answer
the question above, you need to be able to deal with (i) the history of positivism, (ii)
positivism and liberal political philosophy as related fields of inquiry and (iii) the
characteristic themes and concerns that can be traced between the two fields.
An essay must always have an introduction and a conclusion (see below), so this
would give us the following rough divisions:

76
 (i) Introduction
(ii) History of positivism
(iii) Positivism and liberal political philosophy
(iv) Tracing characteristic themes and concerns
(v) Conclusion
- and-

emerge. Each bloc might consist of a three or four paragraphs, where each paragraph

find that you need to disaggregate points in order that you can deal with them
effectively. You can always add more paragraphs.
Given that one of the key things that makes a successful essay is its careful
organisation it is important to be able to maintain control of your argument, and to be
sure that it develops in a logical, coherent and organic way in other words, it does
not jump from point to point.
Planning also means thinking about the word limit and the amount of time you have
to write the essay. If as is the case with jurisprudence- the essay is written under
exam conditions, you have to be aware that you need to be able to write under
pressure of time. An average essay is about 4-5 pages of A4 in average hand writing.
If you write much more or much less, you are probably doing the wrong thing. You
need to avoid simply writing out your notes.
Planning also means thinking about the essay itself- and in this sense is also a
continuation of thinking about the title. The key thing is to produce a well ordered,
organic argument. So, in terms of the question above, it would follow that when you
write about the history of positivism, you are also effectively introducing the other
themes that the essay will engage with as it goes along. Thus, you might want to
make the point that
philosophy- sovereignty is a theme that occupies both Hobbes and later writers of
jurisprudence like Austin. It would then make sense to say something more in the
latter part of the essay about sovereignty as a distinctive theme in both positivism and
out
sovereignty, he does so as part of a discourse on natural law as a way of thinking
about political community. This could effectively give us a second, and related theme:
what is shared between liberal political philosophy and jurisprudence is a concern
with natural law.

the material. In other words, if you want to deal with the question of how an argument
develops think about (a) the question you have been asked and (b) the relevant
material. You could write this essay entirely on sovereignty- but- given that the
instruction contains plural nouns themes and concerns- you have to deal with at least
two concepts. It makes sense to talk about sovereignty alongside a concept which is
both present in early discourses on sovereignty, and can be found in later writers like
Austin and Bentham.

77
There have to be limits to the development of an argument. You do not have time to
write a book- so- your choice of focus is an important one. Be guided by the
materials. The lecture notes go into the relationship between sovereignty and natural
law, as did the lecture itself. Depending on how skilful you are, you might want to
relate this concern with sovereignty and natural law to the question of description and
criticism in both positivism and liberal political philosophy. The more themes you
bring to the essay, though, the more you have to be careful to be in control of your
argument and not to let it run away with you.

Step 5: The frame and the development of the argument

A related point concerns how many writers you feel you should bring into the essay.
The title require a spread of writers but there is a legitimate question mark over who
you should include. In order to answer the question, you need to deal with at least one
writer who satisfies the description of being a liberal political philosopher, and one
writer who is engaged with jurisprudence.
to say that a
- it might be worth
thinking that your minimal sample is thus three- and would run something like
Hobbes/ Bentham/ Austin. This would also have the benefit of providing a way of
tracing the themes that we want to trace: sovereignty, natural law and the very idea
that they are distinctive of both positivism and natural law. You could make reference
to other writers, Mill perhaps, to illustrate the main line of your argument- but- the
previously mentioned rule applies- the more you include, the harder the essay
becomes to organise.
Should you extend to Hart? To Raz? In principle, you could but think of the
problems that such an extension would create. If you have limited time/ word limit-

analysis you could offer, and thus make your answer less compelling. There is a
choice to be made here, and a good essay will make a choice to include sufficient
material to answer the question and to allow the development of the analysis. The
more you write, the more adept you will become at making this choice- but- you have
to be acutely aware of the fact that you need to make it as a writer.
Applied to the basic blocs of the essay, the frame should give us the following
(i) Introduction
-Introduction to argument ( clear statement of main thesis and signposting
of argument; definition see below)
(ii) History of positivism
Hobbes: sovereignty and natural law
Why does Hobbes link these themes together?
Concern with political community
(iii) Positivism and liberal political philosophy how to trace the themes
above?

78
 Bentham: sovereignty and natural law- how does Bentham develop
Hobbes?
Austin: sovereignty and natural law- How does Austin develop Hobbes
and Bentham?
(iv) Tracing characteristic themes and concerns
How are sovereignty and natural law distinctive themes; how does

they write about law? How does this show a theme that is distinctive to
liberal understanding of law and political community?
Conclusion
For sake of argument we could deal with any definition that are important to the essay
at this stage as well. They must be set out at the beginning of the essay, but, they are
not an introduction to your argument for reasons set out below. They appear in the
sketch above, but, bear this point in mind.
So, step 5 is: Be aware of the frame when planning your answer.

6. Introduction and Conclusion

Once you have planned your essay you can think about the introduction and the
conclusion. Every essay MUST have an introduction and a conclusion. The
introduction has a very precise form: (i) it outlines your main thesis. This must return
directly to the question and tell the reader what you think and why (ii) it must signpost
your argument (iii) the introduction can also deal with any relevant definitions that are
important to your argument.
The opening sentence of the essay should tell the reader immediately what you think
about the question you have been asked, and what your judgement is. Thus:

political philosophy, one finds two related fields of inquiry that share many

Note, this opening sentence more or less repeats the words of the question whilst
making it clear to the reader what the writer thinks. The second sentence then outlines
the argument. We will return to this point presently. The remainder of the introduction
can then deal with any relevant definitions.

79
Sample Essay
(NB It is not expected that you would write an essay of this length in the exam.
This sample essay is meant to exemplify essay writing technique as outlined in

s it, one finds that positivism and liberal

political philosophy are related fields of inquiry. Liberal political philosophy

This statement is correct. If one traces the history of positivism back to liberal
political philosophy, one finds two related fields of inquiry that share many
characteristic themes and concerns. Classical positivism borrows and transforms
certain themes from liberal political philosophy. In particular, this essay will concern
itself with the way in which the concept of sovereignty can be traced between
philosophy and positivism; but it will also track understandings of the distinction
between description and evaluation. Positivism slowly develops from Ho

necessary for the proper education of practical lawyers. The argument will develop as
Leviathan
jurisprudence, and a concluding section will concern John Austin. For the purposes of
this essay, liberal political philosophy can be understood as a body of thought that
stems from the work of Thomas Hobbes, but reference will also be made to David

jurisprudence. Positivism can be defined as the understanding that legal rules are
produced by a sovereign power, and the description and criticism of law and legal
systems are separate but necessary elements in legal philosophy. Positivism will be
explored through the work of Jeremy Bentham and John Austin. It would be possible
to trace themes from Bentham and Austin into the work of contemporary positivists
such as HLA Hart and Joseph Razz, but the focus of this essay will be on classical
positivism.
The characteristic themes of classical positivism can be traced to the political
philosophy of Thomas Hobbes. Written in the period after the British Civil War,
Leviathan, set out a philosophy of a political community based
on sovereign power. The Leviathan, or
saw sovereign power as based on a covenant or agreement between those who would
be its future subjects. Borrowing from natural law ideas, Hobbes argued that whilst
men and women were naturally acquisitive, vainglorious and prone to violence, by
virtue of their natural powers of reason they could also come to an agreement to end

thus a mutual agreement that brings men and women out of the state of nature and

only way of preserving the peace of the political community. Dividing up sovereignty
would lead to dispute and tension which would threaten social peace. However,
Leviathan is far from an account of dictatorial or tyrannical power. Hobbes was

80
careful to locate the power of the sovereign in a broader account of the end of the
perhaps hard to link
Leviathan to contemporary liberal doctrines like separation of powers, limited
government and the rule of law. One has to see the book as a product of its times.
However, it is also necessary to appreciate that Leviathan was influential for Jeremy
-framed many

time: in particular the need for social and legal reform.

Bentham followe

sovereignty, arguing that it cou even though subordinate law

making powers had to be related back to the command of the sovereign. Bentham also

made by the sovereign or by a body or person with delegated power, were ultimately

understanding of law held that all laws were imperative or permissive; allowing or
prohibiting forms of conduct. The imperative aspect of law is often concealed in
permissive laws. Thus, for example, common law rules around title and ownership of

in other words- the general sovereign prohibition on disturbing title to

- and
. We can thus see

civil and criminal rules must be related back to sovereign commands and sanctions for
disobedience.
Bentham, unlike Hobbes, was a social reformer. Bent

-interested but also

able to rationally comprehend the need for political organisation. However,

about utilitarianism from the David Hume. Bentham believed that utilitarian calculus
delivered up certainties about the organisation of social affairs. It was a way of
r
problem by specifying where the greatest happiness of the greatest numbery lay.
Security was as essential for Bentham as it was for Hobbes. Utilitarianism could
demonstrate

rianism in the assertion of the centrality of

peace and security as the founding values of political community.

and evaluations. Hume did not deny the importance or relevance of evaluation, but he
did argue that evaluating something was strictly separate from describing a set of

81
jurisprudence. Expository jurisprudence describes the law, whilst censorial
jurisprudence tells us what law ought to be by reference to utilitarian principles. This
is clearly something of a movement on from Leviathan, drawing as it does on a
distinction that Hume makes in his philosophy, but, it can be seen as a point of

The continuing relevance of Hobbes and Hume for the classical positivists can be

classificatory project. Jurisprudence becomes a science of positive law.

Austin also inherits the Humean distinction between exposition and criticism,
although the latter element is perhaps somewhat downplayed.
For Austin, legal rules reside in an aggregate or a complex that must correlate with
political sovereignty. Positive law must, by its very nature, be posited by a political
superior. Austin elaborated this idea in the following way: the bulk of a population
must, by habitual obedience, obey a common superior, who is dependent to no other.
Sovereignty is for Austin, as it was for Hobbes and Bentham, a relationship of
inferiority/superiority. Austin used an explicitly Hobbesian argument to further his

relationship of obedience to a determinate sovereign. How, though, was it possible to

work from the notion of a sovereign, who is presumably specific to a nation and a
legal system, to a general science of law?

law. Austin sought to locate and defend a notion that there were concepts and

Roman law scholarship as a model for a rigorous approach that could describe the
underlying structure of law. After all, Roman law had been received throughout the
developed world. It was an obvious template. Austin argued that there were certain

demarcation and division of the law. The divisions of the law should be based on a
principle that moves from the general to the specific. Thus, public law can be seen as
a limb of the law of persons. Private law can in turn be divided by reference to a
distinction between relative and absolute rights and duties correlating with a second
distinction between primary and sanctioning rights and duties. Whilst it may be
difficult to see the presence of the sovereign in this classificatory schema, sovereignty
is still its primary organisational device; as is the Benthamite concern with the clear
exposition of law.
What, though,

transformation of ideas that have their roots in liberal political thinking. The
classificatory project is important because it re-casts philosophical ideas in an

would help lawyers to understand their subject. He compares his work to a map that

82
 rather than an abstract science.

Leviathan, yet it is arguably the case that we can see the real presence of ideas such as
sovereignty alive in his work .It is also arguably the case that the very idea of a
expository jurisprudence can be traced back from Austin, through Bentham and Hume
to Hobbes. Censorious utilitarian principles, an inheritance from Hume and Bentham,
- although they are somewhat secondary given his
primary aim: to classify the law, so that lawyers could understand it, and become
better practitioners. In tracing the links between positivism and liberal political
philosophy, this essay has argued that positivism consistently borrowed its central
concepts from political philosophy. Positivism does indeed have a history; and its
history is bound up with liberal political philosophy. They are, after all, related fields
of inquiry.

83
Suggested Solutions

Hart Questions

NB. At the time of writing it appears to be the case that there will be a question on
The Concept of Law is no longer

the set book- but it is assumed that they might offer at least some guidance on the

ws
which they do not regard as morally binding, but it is not even true that those who do
accept the system voluntarily, must conceive themselves as morally bound to do so,
though the system will be most stable when they do so. In fact, their allegiance to the
system may be based on many different considerations: calculation of long term
interest; disinterested interest in others; an unreflecting inherited or traditional
attitude; or the mere wish to do as others do. There is indeed no reason why those who
accept the authority of the system should not examine their conscience and decide
that, morally, they ought not to accept it, yet for a variety of reasons continue to do
(Hart, The Concept of Law) Discuss.

Because this question is based on a rather long quotation, it appears to be a difficult

question to answer. However, if we approach it calmly and in first instance- as a
matter of comprehension, then we need to see it as a statement that we must evaluate

to determine what Hart is arguing. The fundamental point relates to the question as to
why people follow the law. Hart is suggesting that people obey the law for a number
of reasons- and it would be wrong to fixate on the idea that reasons for obedience are
moral (although Hart does suggest that a legal system would be more stable if people
did understand that there was a moral reason for obeying the law. Having clarified the

The best place to start is to ask yourself whether you largely agree or disagree with
-
is un problematic: people obey the law for many different reasons. It would be hard to
disagree with such a statement. Remember, though, that this is a question about the
set book, so our discussion needs to relate this theme to one or more of the key themes
in The Concept of Law.

There are a number of ways of approaching this statement, and to some extent this

point- - is to put this statement in its

jurisprudential context. Hart begins by suggesting that it is too simple to see law as
either based on power and coercion or as somehow based on commonly accepted
moral norms. In other words, Natural law and Austinian approaches ignore a more
complex reality; a reality that Hart thinks he can describe. This takes us to one of the
central arguments of The Concept of Law that sees law as rooted in a social reality
that must be described sociologically. At root, this takes us to the need to describe and

84
So, this suggested solution will proceed on the basis that this statement can be seen

concerned with the practice of rule following- and this statement suggests no more

interest; disinterested interest in others; an unreflecting inherited or traditional

attitude; or the mere wish to do as othe

behaviour- and some/most people simply follow rules because others do, or because
they think it is in their interests to do so (query: does this suggest some degree of self
- which suggests

is somehow conscious. Indeed, if this is a des

in context- and- we are to produce a

very good answer, we need to go a little further.

We could make some more critical comments. If this is sociology of law, then it
appears that Hart is presenting a thesis that would need testing. It begs the question of
how one can ev
law. Hart offers no empirical evidence for his claims, either in this passage, or in the
book as a whole. This does not make this approach to rule following wrong. However,
it does suggest that it is a thesis in need of proof.

legal system to the rules that they are administering, interpreting and enforcing. Do
they need to adopt a moral attitude to rules?

A good way of dealing with these issues might be to bring in some other ideas from

could perhaps make some reference to other sociologists of law. Clearly, from a
Durkheimian perspective, Hart is approaching- without being explicit- some idea of

obedience may not be present to the consciousness of those involved in the practices
concerned. The function of rules is to bind together a complex, differentiated society.
Although people can be made conscious of this if they reflect on their behaviour, it
may be the case that as solidarity is a broad social structure- that rules function to
bind society together without conscious reflection being a necessary element.
Durkheim would also be relevant to the question of the moral attitude of officials. For
Durkheim, professionals need ethics- and- if ethics can be understood as an element
of morality, then a properly functioning legal system would require its officials to take
their professional ethics seriously.

A last point might make a more Weberian point. The idea that a legal system or
indeed any bureaucratic system- can function withou
by its officials, is part of the structure of modernity. Within a rationalised world,
provided that a system is efficient and allows means/end calculation, there is no need
for it to be moral.

85
In summary, Hart is suggesting that people obey the law for many different reasons,
and jurisprudence has to grasp this complex social fact. The Concept of Law is, after

wn approach to this issue, whilst not wrong, would require

much greater elaboration. Drawing on Weber and Durkheim allows critical points to

wider themes in the sociology of law.

2. Give some examples from the The Concept of Law where Hart picks out
distinctions in the meaning of words to advance his claims about the nature of
law, and critically assess how successful he was in using this technique in these
examples, and how much such examples contributed to the overall project of the
book.

This is a reasonably straightforward question to answer, provided that one responds to

all the issues that it raises. Note that it is not just a question of giving examples, but of
relating these examples to the structure of the book as a whole and its central project:
to describe a concept of law. It would be sensible, therefore, to begin by addressing
the fundamental point: law works through language, and therefore, the words that we
use
- so- at least one way of critically

something of an advance on the command theory.

- and an outstanding answer might make the link to Wittgenstein, and the
idea that the definition of any words depends on a practice- a way of using that word.
So- in part the project of the Concept of Law is to build on definition of law on the
way that people commonly use words like law, commands, orders, etc. This is also
based on the idea that this is a description not an evaluation of these practices: in

problematised by unexplored assumptions, then it would suggest that Hart might not
have achieved a description of law in general, but, no more than a particular set of
cultural understandings of law in a given historical and linguistic context.

In terms of the examples that one could use, there are at least three main points of
reference. Hart makes an important distinction between rule following and merely
doing things as a rule. The latter suggests something like a habit, whilst the former
nscious and

This suggests that the command theory of law is simply too narrow to understand the
complex social reality of rule following practices. It also shows that rule following is
based on rational behaviour.

86
obliged and having an obligation. Whilst the former is concerned with a response to
coercion and threat, the latter relates to the way in which a legal system creates
obligations which are seen to be legitimate. Hart also make an important distinction
between the ideas of obligation and duty, arguing that laws can oblige people to do
things without imposing duties. Furthermore rules that create powers do not imposed
requirements, but facilitate the achievement of certain ends.

Both these examples and the arguments that Hart makes also tend to show that laws
cannot be seen as either commands or orders; and that an account of law that merely

what Hart calls the variety of law.

How could we make critical points about these distinctions? If one argues that it is
- as a Marxist would- then the
distinction between being obliged and having an obligation breaks down. The broader
point is that this distinction is blind to the coercive power of law, and the way in
which it legitimises a particular form of class power. Whilst the example relating to
powers seems uncontentious, other- non Marxist -critical approaches would tend to
s
the way in which the power of law is bound up with unexamined prejudices. A critical

about the inferiority of primitive law, and the need to justify an imposition of an
imperialist culture through the denigration of indigenous laws and customs. Likewise,

In summary-
understanding the definition of legal words, critical readings of The Concept of Law
would suggest that this makes the book profoundly blind to the way in which law is
bound up with class, race and gender.

of the three secondary rules Hart identifies. All three of the secondary rules are equally
necessary for the existence of a modern municipal legal system, and depending upon the
social and political context, at one time one of the three rules will be more important

Discuss.

This statement is accurate. There is indeed no real sense in arguing that the rule of
recognition is the most important secondary rules; however, it is also reasonable to argue
that a given social and political context might draw attention to one of the three rules of
recognition. This essay will briefly outline the importance of understanding secondary
rules as a totality, before showing in detail how social and political events might bring
into focus the operation of one of the three secondary rules.

Hart argued in The Concept of Law that all three secondary rules are necessary for the
foundation of a modern legal system. Secondary rules are not primary rules of obligation;
but define the autonomy of a modern legal system that provides a body of distinctively
legal rules demarcated from all other social rules. It follows that a legal system must have
a set of rules that define the nature of legal rules, and how the legal system itself will

87
operate. Hart was careful to delineate the structure of secondary rules. The rule of
recognition provides the foundation of a legal system and defines the
Secondary rules also cover how
laws are to be changed and how the legal system will adjudicate cases. This last set of
secondary rules thus covers matters internal to the legal system, such as the
jurisdiction of the courts and the powers of the judges who preside over cases.

There is no point in arguing that one of the three secondary rules is more important
than the others. It might seem that the rule of recognition is the most important, as this
can be linked with the constitution that founds a legal system. However, whilst this
argument contains elements of insight, it is perhaps not accurate. This is because the
autonomy of a modern legal system- i.e. the nature of rules as legal rules (as opposed
to other social rules, such as moral rules) requires other rules that link with the rule of
recognition and define the legal system. Thus, the rule of recognition links with rules
of change. This allows a legal system to create new law and repeal old law. The
interaction of the rule of recognition and the rules of change allow the creation of
definitive determinations of the law. Furthermore, given the autonomy of the legal
system, it requires a body of rules that define its own institutional functioning. Thus,

rules and seen to be of minor importance.

elaboration of a common theme in thinking about law. The indivisiblility of the rule
of recognition, rules of change and rules of adjudication can, for instance, be linked to

provides a focused elaboration of how a legal system gives definitive rulings that are,

ing of

legal system as a structured totality of norms. There are important differences

between Hart and Kelsen, but, the main point is that for both thinkers law is a system
of rules and has to be conceived as such. One cannot therefore argue that some rules
are less important than others. All the rules of the legal system are necessary for its
systematic functioning.

However, it is consistent with this position to argue that certain social and political
events might draw attention to the functioning of one of the secondary rules in
particular. For instance, in the case of a revolution and fundamental social and
political upheaval, it may be that the rule of recognition comes into sharp focus. This
is because a successful revolution may change the rule of recognition (and perhaps
also the other secondary rules) by creating a new constitution. Our attention might be
drawn to the rules of change in less dramatic circumstances. For instance, present
debates in the UK about the need for a British Bill of Rights to replace the Human
Rights Act [HRA] draw attention to how rules of change operate in the constitution of
the UK. The HRA could be repealed like any other statute. This is because Parliament

situation, repealing the HRA would probably not call into question the entire structure
t, it would be entirely in

88
keeping with the rules of change that the constitution defines. Finally, events relating
to the jurisdiction of the courts may call into question rules of adjudication. An
ful campaign to apply the
1966 Practice Statement to the Court of Appeal. If Lord Denning had succeeded, the
Court of Appeal would have had similar powers to the House of Lords. Cases such as
Davis v Johnson, then, draw attention to the precise terms in which the courts operate,
but, as with the example of the HRA, do not put in question the fundamental basis of
the constitution.

In conclusion, we can appreciate that there is little point trying to argue that secondary
rules can be ranked in importance. Secondary rules have to be understood holistically
as central to the definition and functioning of modern legal system. However, to
suggest that certain events might draw attention to one of the three rules does not
contradict the idea that the rules of indivisible. It merely shows that, in reality,
different events impact on different parts of a legal system. Only in the extreme
circumstances of a successful revolution might there be a change of the rule of
recognition. Less dramatic circumstances might draw our attention to rules of
adjudication or rules of change. However, the fundamental point remains: there is

understanding of a modern municipal legal system is concerned.

4.What is the importance of the distinction between duty-imposing rules and

power-

theory of law. The distinction is important, first of all, because it allows Hart to
produce a sophisticated description of the way in which rules work. It can be

understanding of rules vis a vis Austen and Kelsen is the way in which it allows us to
grasp how rules influence social behaviour: Hart can thus produce an account of rules
that is grounded in a sociological understanding of the way rules work. We can also

of primary and secondary rules; but we must also be careful to keep these concepts
pal legal
system. This essay will outline the nature of the distinction between power and duty
conferring rules, before turning to examine the relationship of these ideas to Austen
of power and
duty conferring rules to primary and secondary rules and show their wider relevance

In The Concept of Law, Hart makes a distinction between "rules imposing... legal
duties" and "those conferring judicial powers on [a judge] and defining his

the prohibition on theft. Law places individuals under the duty not to steal from
others. However, the law in general cannot be reduced to laws that impose criminal

that human beings may by doing or saying certain

things introduce new [duties], extinguish or modify old ones, or in various

89
individual can have a legal power to determine how his or her property will be dealt
with after death through the terms of a will. Powers can also be created by the law for
legal personnel. An example would be the power that determines the jurisdiction of a
judge.

compar
sovereign that imposes the duty of obedience on its subjects. Hart argues that, whilst

would be difficult to argue that all forms of law- whether criminal or civil- impose
duties on people. People do not enter into contracts, for example, to place others
under a duty. Whilst remedies for breach of contract may be used to compel people to
hounour their promises, contracts are perhaps more properly understood as a means
through which individuals regulate their dealing with each other. We could therefore
see the power that the law gives individuals to enter into contracts as a way in which
the law al
habitual obedience to duty conferring rules.

-conferring rules could be viewed, as Kelsen

would say, as fragments of laws. Kelsen's "Law is the primary norm which stipulates
the action" intepreted by Hart means that "There is no law[, for example,] prohibiting
a murder: there is only a law directing officials to apply certain sanctions in certain
circumstances to those who do murder. On this view, what is ordinarily though of as
the content of law, designed to guide the conduct of ordinary citizens, is merely the
antecedent or 'if-clause' in a rule which is directed not to them but to officials, and
orders them to apply certain sanctions if certain conditions are satisfied. All genuine
laws, on this view, are conditional orders to officials to apply sanctions. Hart
elaborates: "'[a]ll rules' [such a] theorist might claim, 'are rules directing
officials to do certain things under certain conditions.'

and
ordinary citizens, use rules to guide purposive activities. In this sense, the distinction

world; rules can, in this way, be related to the way in which behaviour has meaning
for individuals.

argument that modern law can be understood as a fusion of primary and secondary
rules. Power and duty conferring rules cannot be confused with primary and
secondary rules. Perhaps, most properly, the distinction can be seen as something that

rules, and certain duty conferring rule might relate to primary rules. To the extent that
duty and power conferring rules regulate basic social life, they could be coordinated
with primary rules. Power and duty conferring rules may also relate to secondary
rules, to the extent that they define the duties and responsibilities of legal personnel.

rooted in the social world, and having a degree of autonomy and self definition that
defines law as a discrete body of social rules.

90
This essay has argued that the distinction between power and duty conferring rules is

sophisticated understanding of the way in which rules regulate social life and also
can be favourably contrasted to that of Austen and
Kelsen. The distinction between power and duty conferring rules is also a central

the distinction is a central argument in The Concept of Law.

Finnis, Fuller (Natural Law), Dworkin, and Raz Questions

5.Natural Law thinking is characterised by its assertion of the universal qualities

of human reason. The difficulty that natural law thinkers have is in showing how

Discuss.

It would be wise to agree with both parts of this question: Natural Law thinking is

reason does underlie or inform law.

The point of this question is to show how it is possible to move from an account of
human reason to an understanding of law. We will take John Finnis as a
representative of Natural Law thinking. Reference could be made to Lon Fuller- but-

modest than Finnis, and Fuller is not strictly committed to an understanding of the

values internal to law, any discussion of his work is somewhat marginal to this essay.

In overview, Finnis argues that there are certain basic values common to human
cultures, and that practical reason is the behavioural orientation to these values.
Reason is thus linked to morality. One could suggest, then, that Finnis is concerned
with showing how a basic structure of human thought and behaviour could be seen in

these structures of moral behaviour apply to law?

He acknowledges that a great deal of the law that relates to modern legal systems is
technical, complex and somewhat remote from practical reason. However, both major
doctrinal principles, and the structuring principles of law can, ultimately be derived
from practical reason. Finnis develops an argument from Aquinas that shows how it is
possible to move from grounding moral principles to show how these principles do
indeed relate to technical legal rules. For instance, a doctrinal principle like mens rea
can be related back to the moral prohibition on murder. In order to guide human
behaviour, a legal system needs a system of criminal courts, with their own rules of
procedure. These interact with other values, for instance, due process, which can also
be derived from moral principles. Thus, any proper understanding of modern law
must be related back to morality.

91
principles that link reason to morality can inform legal rules and the structure of a
legal system.

Whilst this question might seem to demand a very wide appreciation of different
jurisprudential arguments, it is infact based on one of the exercises in the Study Guide
( see 6.1 and 6.2). If one has a necessary grasp of the basic idea of the rule of
recognition, and the relevant criticisms, then- provided that one answers the question-
and note that one is being asked to evaluate the criticisms- it should not be too
difficult.

The rule of recognition is the foundation of the legal system to the extent that it
provides a way of identifying the rules that make up the legal system; it also allows
those rules to be changed or repealed and new rules to be added. It is the marks of a
modern municipal legal system. For Hart the rule of recognition is not necessarily
moral, although it can- for cultural or historical reasons- take a moral form; i.e.
include some moral requirement in the identification of law. One way of thinking of

Although they make different criticisms, perhaps what they share is an argument that
Hart has not identified the way in which a legal system is composed of more than
rules and that morality plays a more central part than Hart allows.

For Finnis, the attitude of officials to rules is necessarily moral. This suggests that
there is a link between morality and the legitimacy of law- - by
ignoring the role of morality- would provide a very limited account of the legitimacy
of law. This would clearly be a problem for any account that the constitution is linked
to the rule of recognition.

system is composed of more than rules, and includes principles of political morality
that allow judicial interpretation to operate. If one rigorously excludes these principles
of morality from a sense of law, then one has failed in two ways: as an observer
offering a description of a legal system, one has failed to describe an essential
element. Secondly, one has failed to appreciate the inherently evaluative nature of
law, and the strong link between law and a wider political culture. The rule of
recognition is thus based on flawed observation, and a misunderstanding of the nature
of law.

Are these criticisms sound? This largely depends on whether one is a Natural Lawyer,

various positions pushes one to defend a particular relationship between law and
morality. If one defends Hart, morality is separate from law precisely so one can make
moral criticisms of law. For Finnis and for natural lawyers, though, this has already

92
conceded to much- and sees the law as morally impoverished. Dworkin might argue
that any sensible criticism or understanding of law has to make use of principles that
are already immanent or present within a political culture that includes law. From a
Marxist perspective, this is all bourgeois legal philosophy- blind to the power
relations that lie behind and determine the forms that law takes.

authority to make laws (i) empowering officials to punish murderers, (ii)

requiring the wearing of seat belts, (iii) imposing taxes and (iv) regulating
traffic?

The correct approach to this question would be to begin with an outline of the theory
of authority and the normal justification thesis. This would have to begin by
explaining the service conception of authority- i.e. it is rational to follow authority
when it is in a p

an authority is
justifiably an authority for you when you are more likely to act correctly on the
balance of reasons that apply to you if you follow the directives of the authority than

as determinate norms relates to the normal justification thesis. A rule has to be clear
enough to state the definitive reasons for action.

authority before applying them to the four parts of the question. The bases for

into account extraneous considerations than an individual); confirming the course of

action that people have already voluntarily taken; relieving individuals of costly
decision making processes; resolution of coordination problems through the creation
of conventions.

could also be taken into account. It is likely that individuals would be

motivated by revenge rather than due process; the state might also have the

better option to harsh punishment.

Expertise seems to be the main factor in this instance.
Coordination and expertise seem relevant to this question.
Coordination and expertise are also perhaps the key factors here.

theory of legal norms and the authority

Discuss.

It would not be an exaggeration to argue that the concept of the exclusionary reason is

and his account of legal norms, legal authority and the

relationship between law and morality. This essay will outline the concept of the

93
exclusionary reason, and also demonstrate the relationship between legal norms and
the authority of law. However, it will also show that the concept of the exclusionary
reason is linked to a liberal theory of legal authority: thus, legal authority is limited

the concept of the exclusionary reason is also central to allowing Raz to define the
limited role that morality plays in law. We can thus appreciate that the concept of the

So, it would be correct to argue that the concept of the exclusionary reason is central

-emptive reasons:
i.e. reasons for doing or not doing something. The second point to appreciate is that,
-emptive. That an authority requires an
action to be performed is the reason for its performance. Unlike reasoning outside of
the context of authoritative legal norms, where we decide to perform (or indeed not to
perform an act) by balancing reasons for and against, a legal norm pre-empts such a
balancing exercise. It is the reason for acting (or refraining to act). Exclusionary
reasons are authoritative reasons that exclude any other reason for acting. So, the next
step in our argument is to show the link between exclusionary reasons and legal
norms more precisely.

For Raz, legal norms have to provide clear reasons for action. In his jurisprudence,
Raz makes an important distinction between the moral considerations that might
predominate in the deliberative part of judgement, and the authoritative instruction
that underlies and makes possible the execution of the decision. Legal norms, as
articulate in a judgement, must go beyond deliberation. Raz argues that legal norms
must therefore leave no room for doubt or ambiguity.

How, though, can these arguments be linked to the authority of law? As a liberal
thinker, Raz must claim that the authority of the law is limited; in other words, there
are certain areas where law cannot provide exclusionary reasons for action. This links
y. For authority to be legitimate, it
must be in the interests of citizens to follow definitive legal norms. The bases for

into account extraneous considerations than an individual); confirming the course of

action that people have already voluntarily taken; relieving individuals of costly
decision making processes; resolution of coordination problems through the creation
of conventions. It would follow that to the extent that a legal norm falls outside one of
these areas, it will lack legitimacy. For instance, it is likely that Raz would argue that
law has no legitimacy to interfere invasively in private life. Law would thus lack
authority to determine matters of sexual morality beyond the narrow prohibition of
violent or abusive acts.

We can thus appreciate that the account of the exclusionary reason and the limited

separate law and morality operates within a liberal concept of morality. The law, as a
statement of authoritative norms to guide public behaviour, cannot make a claim to be
imposing any particular morality on citizens. This is not to say morality is
unimportant; it is, however, a subjective concern of individuals, not a concern of
public authority. However, it is also worth noting that the account of the exclusionary

94
reason does not suggest that morality is entirely unimportant to the articulation of
legal norms. To the extent that it may be present in legal reasoning at the deliberative
stage of law making, there is a sense in which morals do enter into law. The concept
of the definitive legal norm, however, suggests that the subjectivity of morality is
entirely inappropriate to the binding legal norms articulated by courts.

ways, if any, are the two connected?

It is easy to misread this question! It has three parts: the first part requires discussion
of the rights thesis, the second, the right answers thesis and the third part requires
elucidation of the link between the two of them. The two theses are connected in
The rights
thesis distinguishes between rights and policies. It argues that judges most properly
use policies to make arguments about the law, and in particular, to use principles, that
relate to rights, to come to conclusions in hard cases. The rights thesis thus stresses
the judge cannot base his/her arguments entirely on

issues that relate to social and economic goals. The thesis also shows how principles

uses to clarify unclear rules or to create new rules. How does this relate to the right
answers thesis? This thesis suggests that a judge must constructively interpret the law.
In dealing with a case, the judge must resolve any legal issues in such a way that the
case fits into the law, and develops it in a coherent fashion. Judge Hercules provides a
thought experiment that shows how this process can be modelled. In other words the
right answers thesis shows how the rights thesis is a necessary part of constructive
interpretation, or an important element in the creation of coherent law.

The theory of constructive interpretation can also deal with another inherent problem

legislation? Judicial creation of rights would not be so considered if the rights in

te form. The

is because law is part of a much broader political and moral culture where legal, moral
and political principles are strongly related. In other words, the principles/policies
distinction does not need to be hard and fast. Provided that a judge is not usurping the
legislature, and basing argument solely on policy, political principles can enter into
legal reasoning.

political and
moral culture.

theory of law?

To the extent that Dworkin provides a theory of law based on interpretation, his
jurisprudence can be seen as distinctive in relation to other dominant approaches in

95
contemporary legal philosophy: natural law and positivism. After outlining the

an approach that is significantly different from that of Hart, Raz, Finnis and Fuller.

f law,

To appreciate the distinctiveness of Dwo

necessary, first of all, to outline its key concepts. For Dworkin, law must be seen as
pa - a common political and legal culture that binds
together citizens who understand that their rights and duties are rooted in shared

think about the principled nature of legal doctrine. If we have to constructively

interpret law- i.e. see it as coherent and developing in a way that articulates this
coherence- then we need to ensure that each area of law has a consistent intellectual
structure. For instance, criminal law has to develop a theory of mens rea; contract law

that the different branches of law would also have to relate to each other in a logical
fashion i.e. there has to be a conceptual difference between say- liability in crime,
and liability in a civil sense.

there is a right answer to the issues on which a court delib

provided by a legal practice- a way of interpreting a case that makes law the best it
can be; that best resolves a problem in the light of the moral resources that the legal
tradition offers. Dworkin has offered different ways of thinking about the right
answers thesis; from the personification of judicial interpretation in the imaginary

interpretation. In a slightly different, but equally important sense, Dworkin has

produced a thesis about rights which guides judicial interpretation, and demarcates
judicial arguments about legal principles from policy arguments that are the proper
concern of the legislature.

tion stresses that law is about a practice of

argument. Legal arguments make interpretative use of the resources of a legal and

arguments drawn from positivism and natural law, we can go on to further appreciate
its distinctive nature.

There has been a long and complex dispute between Hart and Dworkin about the
relative merits of their jurisprudences. Whilst Hart does have an understanding of
adjudication, or judicial interpre
theory, it is far too limited and misunderstands the judicial use of discretion. One of

swers in law. For Dworkin this is not a matter of

key argument, that judges develop a political morality of law, is distinguished from

96
law and morality. This point would also distinguish Raz from Dworkin. Although the
former allows morality a role in legal argument and law making, it is entirely absent
from the promulgation definitive legal norms. Dworkin would also disagree with Raz
about the role that discretion plays in legal interpretation.

contrasted with natural law

thinking. Although the interpretative approach is about the development of political
morality by judges, it does not require the explicit ethical theory and account of basic
values that Finnis provides. For Dworkin, this philosophical approach is not
necessary, because judges are interpreting values that are already within legal culture.
In this way Dworkin is perhaps close to Fuller; but, the former can be distinguished

principles that Dworkin identifies as central to legal interpretation are not as narrow
compass.

values from the normative structure of law. Although, like Hart, Kelsen has a theory

Kelsen is attempting to produce a pure object of law that exists for the legal scientist;
he is not describing a culture of legal argument in the same way as Dworkin. We can
thus appreciate that their accounts of law are quite distinct.

is vital to hold apart: the notions of purposive activity and morality. Poisoning is
no doubt a purposive activity, and reflections on its purpose may show that it has

a purpose and those final judgments about activities and purposes with which
morality in its various forms i

this could be seen as a very focused question on natural law, that requires the writer of
the essay to take a position on the Hart/Fuller debate- in other words-
theory of the procedural morality of law effectively show that there is a necessary link
between law and morality? Perhaps the best way of constructing an argument here,
this does not show a necessary
link between law and morality, it does perhaps come to a useful conclusion on the
debate between Hart and Fuller. Thus, Fuller tries to show- via the eight principles of
the inner morality of law, that law must have a content which could be seen to be that

morality of law are not moral, but, a description of effective law making. They are
descriptions of a means-end relationship that is not necessarily moral. This is what the
extract on which the question is based suggests. Hart is making the point about the
non moral nature of means-end relationships, by suggesting that one could equally
argue that the steps that a murderer takes to murder his/her victim are moral. In other

97
 - and that is has to be
ut legal justification.

- and given that the Study

- a soft positivist approach might
clarify the argument. If we accept with Hart that a description of the inner morality of
law is perhaps best understood as a description of effective law making, rather than a
claim that shows that law is necessarily moral, could we not suggest the following. If
positively framed as the rules of
due process, could we not suggest that whilst there is no necessary link between law
and morality, law lacking due process is not law in any proper sense of the word?
critique of Fuller, whilst
remaining agnostic about the necessary link between law and morality.

Kelsen and the Pure Theory of Law

g of law possible, but in his later

Be careful to observe that this question has a number of parts. We are being asked to
define the grundnorm, to think about it either as a presupposition or a fiction, to
determine which of these descriptions is the best way of understanding the
r to deal
with, then, is definitional: what is the grundnorm? The grundnorm is the basic norm
that founds the hierarchy of norms that is a description of a system of laws. The
grundnorm establishes the validity of all the norms of the legal system. We can
associate the grundnorm with the constitution. If this is valid, the norms issued in
accordance with it must be regarded as valid.

However, we do need to clarify this statement. If the basic norm is a presupposition,

rather than a fact, then it would need to be understood in the following form:

constitution is itself a fact, the grundnorm is a description of its normative content.

This normative content cannot be based on a description of social reality- because if it

supposition, made by the jurist in order that law as a system of norms can be
understood. In this sense, the grundnorm as a supposition is entirely consistent with
the underpinnings of the Pure Theory, which understands the law purely in the terms
of the law-
constitution.

But- does this deal with the probl - if we need

to presuppose the grundnorm, what norm justifies the grundnorm? As there can be no
norm that justifies the grundnorm, we avoid infinite regress, but, we do (presumably)
need some reference to social reality. In other words, because a constitution must
historically have been put in place, there is no need to find a norm that justifies the
grundnorm.

98
Is the grundnorm, therefore, a fiction? Kelsen did suggest that it might be. But, in

the presupposition of the grundnorm. If a norm is a presupposition, there is no need to

- or- the historical fact of the constitution.
The fic
as

The

In summary- whether one thinks of the grundnorm as a fiction or a supposition it is

entirely consistent with the Pure Theory of Law as a logical description of law as a
normative structure.

13.What, in your opinion, is Kelsen s most important contribution to the

philosophy of law, and why?

theory of law. This essay will, first of all, outline the concepts that
jurisprudence, and show how they represent a coherent way of thinking about law. A

his jurisprudence with that of Hart, Dworkin and Natural Law Theory. There is also a
pervasive argument that the pure theory is quite distinct from sociological accounts of
law. It is thus possible to appreciate how Kelsen contributes distinct concepts to the
study of law; and how the pure theory is an entirely original understanding of law as a
hierarchy of norms.

creation of a rigorous of a normative science.

elaborate a theory of law that does
law is and how it operates. To the extent that Kelsen is concerned with the function of

at least in the Pure Theory, is to think of law in its own terms. This means dismissing

The Pure Theory of Law is thus dedicated to

neutral description of the law possible. The pure theorist of law seeks to study law in
the way that the natural scientist studies the natural world.

a structure of norms? This requires a definition of norm. Leg

-

or any referent external to a system of law is necessary. The second crucial point that

To understand law as a structure of norms, each norm must derive its validity ( its
place in the legal system as a norm) from a norm that is somehow superior to it. For

99
example, what makes the norms of (for example) property law valid? These norms
relate to a wide variety of matters and concerns over real property; defining structures
of ownership, obligation and control. Property law norms are valid because they are
part of the legal system as a whole. In English common law, this means that they are
either derived from common law or statute. The norms of property law thus derive
their validity from the norms that define how to create law in the English legal
system. This would be true for any area of law (contract, tort etc). This, then, bears

Lying at the base of the normative structure of law is the Grundnorm. In thinking
about this fundamental concept, we can appreciat
to jurisprudence by contrasting his thinking with that of Hart. For Hart, the rule of
recognition defines the autonomy of modern legal system. Although Hart, like Kelsen,
would argue that morality is not necessary for the definition of the rule of recognition,
and hence legal rules in general, their major disagreement would be over the nature of
the foundational norm or rule. For Kelsen it is a supposition. It is what the legal
scientist presumes in order to makes sense of law as a structure of norms. For Hart, on
- moreover, it is a practice,

gives us a way of thinking about the law that is quite distinct from that of Hart. From

observation of behaviour. It cannot, therefore, be a rigorous pure science of norms.

contribution by briefly showing how the pure theory

compares to other rival approaches in jurisprudence; and comes up with different
arguments about how we are to understand the law as a structure of norms. We have
already made some comparisons with Hart, and the differences with a natural law
approach can now be stressed. The fundamental difference is that the pure theory

ideological distraction from the description of legal norms by the legal scientist. The

law. Although Kelsen stresses that judges can create norms, he would disagree with
morality into law.

other jurisprudential thinkers to defend their approach to law from a scientific

philosopher of law who conceives of law in properly positivist terms and thus distinct
from other social rules. Even if one disagrees with Kelsen, one can appreciate that this
claim is an original contribution to jurisprudence.

100
Marx Questions

-interpreted. A Marxist theory of law

Discuss.

There are at least two ways of answering this question. One could agree, and go on to
show how a theory of law that builds on Marx has to be understood, or, argue that
there is no point re-
law
- simply linking the legal superstructure
to the economic base of society. This would lead to the rather mechanical idea that
law is simply an aspect of economy. It would also appear to be the case that

the state and law; rather revolutions tended to dictatorship- thus stressing the
importance of liberal values like rights and the rule of law.

However, if one is to agree that Marx can be re-interpreted, and that there is a
compelling theory of law can be found in his work, one would have to show how this
can be done. The starting point would be to show that there is a more sophisticated

ociety is a complex totality.

Rather than a simplistic relationship between law and economy, there are complex

totality. Thus, economy influences law, and law influences eco

insight is that this is necessary for the reproduction of the social totality; which
reproduces all the social, economic and political relationships that constitute it. This is
arguably a much subtler understanding of social, economic and political change, and

It would also stress the need to appreciate political ideas like democracy and rights as
- and- to work out how they could
be elaborated as a cr

social and economic relationships.

In summary, if one is not to discount a theory of law that draws on Marx, one needs to
show how a complex and sophisticated model of social and economic change can be
found in Marxist philosophy.

as Marx himself realised, it is not only economic relations that determine the
forms that law takes.
Discuss.

the economic base o

insights, it is reductivist as it presents law as no more than a reflection of a mode of

101
production; and makes it difficult to account for the specificity and complexity of law.
However, it is also accurate to say that Marx was critical of his own reductivism. His
later work, in particular the first volume of Capital, shows a much more nuanced
understanding of law. In other words, Marx shows how law is influenced by political,
as well as economic rel
influences his theory of law before turning to examine the later work and the more
complex claims Marx makes about the nature of law. It will draw on the work of the
French Marxist philosopher
the law moved away from a reductivist account of law, and attempted to grasp the
specific forms that law takes in history.

look
at the way a society works, you need to study its economy; or, more precisely, its
mode of production. This can be elaborated as follows. To understand what Marx
calls superstructural or legal form, one needs to examine the economic base. This
metaphor can be understood as follows. If the economy provides the essential insight
into social relations (i.e. feudal mode of production; feudal social relations; capitalist
mode of production; capitalist social relations) then this way of thinking can be
extended to understand law. For Marx, a feudal mode of production will have a feudal
form of law; and a capitalist mode of production will have a capitalist form of law. In
crude terms, feudal law relates both to feudal economic relationships and social
relationships. If one studies a feudal body of law, one will find distinctive legal
relationships that are based on ownership of land. Land cannot be easily bought and
sold, but is held from the King in relationships of fealty. The serfs are landless
peasants (not wage labourers) who have to work on the land of their masters.

Fundamental economic relationships are defined through title to property, which is

not an asset to be bought and sold. The inherent tensions that bring feudalism to an
end and allow capitalism to emerge must in changing economic organization, also
change the forms of law which characterize this new mode of production. Thus, if
capitalism is based on industrial production of commodities ( something very
different from feudalism) new legal forms will arise to enable this form of economic
organisation. These new legal forms will also regulate social relations. Social
relationships in capitalism (in distinction to feudalism) are based on the wide spread
use of contracts; in particular the employment contract which is simultaneously a
social and economic relationship between the bourgeois and the proletariat. The
employment contract defines the way in which the latter sell their labour to the
former.

Having understood the basic outlines of Ma

them. In particular we can identify the senses in which they can be criticised as

of social relations is reductive in that it

sees social relations as essentially economic relations. More to the point, his theory of
law is reductive in that it sees the form of law as determined by a mode of production.
Whilst this appears to have a certain explanatory power, it is also perhaps unduly
simplistic. However, at least to some extent it appears that Marx is correct. There is a
correlation between the economy and law; at least to the extent that historians have
shown that there are links between feudal legal relations and the broader way in which
feudal economies were based on land. We could also extend this to capitalist

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economic relationships. Work and land become commodities in capitalist economies-
; subject to contractual relationships.

However, it is perhaps overly simplistic to claim that these legal relationships can be
adequately explained by reference to a mode of production. For instance, this
argument ignores the fact that even in a capitalist economy, the law that relates to
ownership of land can retain a feudal structure. Think of contemporary English land
law and the doctrine of estates. An estate in land is, at root, a temporal concept. A
freehold estate is capable of lasting indefinitely unless its owner dies intestate and
with no-one interested in their possessions. In such an event, the land would pass to
the Crown. This suggests that there is no simple correlation between the capitalist
mode of production and the forms of law that relate to the way in which property is
held.

To return to the terms of the question. Marx did realize that the relationship between
economy and legal and social relationships cannot be seen in a simplistic way. Indeed,
are in fact much more complicated relationships

social and ideological/legal relationships. To take one example. If workers organize

themselves into Trade Unions, then they can influence the way that factories are
organized, and, indeed, the length of the working day. Thus, understanding the way in
which the political power of the working class can influence legislation on wages and
health and safety suggests that there are political factors that must also be taken into
account in understanding how law works in society.

The work of the French Marxist philosopher Louis Althusser is central in thinking
about the complex relationship between law and economy. Althusser speaks in terms

interact and influence each. There is no simple way in which the economi
influences the superstructure in a direct way. The important point to note is that

work) criticisms of the simplistic ideas that lead to the idea that the economic base

clearly shows how law takes a form that is influenced by social and political factors.
There is also the sense in which legal form is influenced by legal history, which is
relatively specific; it cannot be directly related to a mode of production but has to be
understood to a large extent in its own terms.

of law. This essay has shown how Marx moves from a redictivist position to a more

The latter part of the essay argued that this is made clear if we read Marx through

understanding of the complex ways in which law is influenced by, and in turn
influences, social, economic and political ideas, institutions and practices.

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argue that both the forms and values of the law can be changed through social

Discuss.

This question raises some very interesting points. First of all, it would be accurate to
say that there is no such thing as a Marxist jurisprudence. Marx was not seeking to
write a narrow, analytical account of law. In this sense, it would be more accurate to

capitalism, and an argument for a communist organization of society and economy. If

one accepts that this is indeed
the case that law can be changed through social action. This is precisely the idea that a
revolution of the organized working class could sweep away capitalist forms of law,
and the values that underlie them and replace this political order with a communist
society. It would also be worth stressing that a successful revolution would, so Marx
appears to indicate, do away with the law. This essay will show that, first of all,
art of his political philosophy; it will then show how
Marx did indeed argue that social action could change forms of social organization so
that the values that underlie the forms of bourgeois law would be replaced by other
more just ways of organizing society.

operation of modes of production. A mode of production is a way of thinking about

how economic relations, or relations of production, distribution and exchange, are
organized. For Marx, the mode of production determines in complex ways the values
and ideas that both underlie and support it. Thus, Marx argues that a feudal mode of
production will be supported and enabled by values that reflect where economic
power lies. Given that land in a feudal economy is held by the king and nobles in
relations of fealty, values of honour will be central to economy and society more
broadly. Moreover, the centrality of land to a feudal economy is reflected in forms of
law which stress that land is not to be bought and sold, but inherited and passed down
family lines.

A capitalist mode of production is characterized by the private ownership of the

means of production and the production, buying and selling of commodities. Thus, the
form of law will have to enable these kinds of commodified exchanges. Land and
labour, which were not commodities under a feudal mode of production, must become
so, and legal forms must reflect this reality. Marx thus suggests that the contract
becomes central to the operation of capitalist economic relationships. This provides
the form which regulates how commodities can be bought and sold. Equally important
are private property relationships which determine how the means of production are
held by a bourgeois class. Given that the bourgeoisie have economic power, they have
a broader social or ideological power to enforce their values on the whole of society.
Thus, ideas of free and fair exchange determined by contract become widespread;
even those who have to sell their labour to make a living, the class Marx calls the
proletariat, are always in an unequal bargaining position vis a vis contracts of
employment. Likewise, ideas of free ownership of property are of little value to those
who lack the material resources to acquire property. Behind these ideologies, or
misleading values and forms, are real relations of class power.

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For Marx, the vast wealth which industrialized production and free market exchanges
generate is based on the extraction of surplus value from labour. This is why
capitalism is exploitative; and the values of free exchange under contract or universal
title to property conceal obscure a situation which is inherently unjust: the private
ownership of wealth that is produced through the labour of the majority.

Marx argues that the tensions inherent in capitalism can produce a revolutionary
situation if the working class become politically organized and are able to overthrow
the power of bourgeoisie. This is quite clearly an idea of social action, which changes
the political and social order. For Marx it would also change the economic order of
capitalism, as the successful revolution would replace the capitalist mode of
production characterized by private ownership and private property, with forms of

arguments that the values of communism, given institutional form by a socialized

economy, would not require the forms and values of capitalism. In particular,
bourgeois ideas of equality and free and fair contract would no longer be necessary.
Marx is not clear on how these values would be replaced, but he is insistent that the
limited forms of justice according to law would be replaced with a much more
substantive notion of justice based on a fair distribution of social resources. Marx and
Engels speculate that capitalist law would be replaced with administration; or, in other
words, a way of dealing with matter of resource distribution that did not require ideas
of law current under capitalism.

Although Marx was not precise on how the values of administration in a communist
society would be different from the values and form of law in a capitalist society, we
should not necessarily allow the failure of the Bolshevik revolution in Russia to mean

in a revolutionary situation are perhaps more tentative and experimental than the
notion of a doctrine to be applied once the revolution has taken place. For instance,

a city can result in democratic experiments in law making and the regulation of work.
We might conclude from this that the relationship between social action expressing
itself in a successful revolution, and the forms and values of social organization that
result, are perhaps much more open to pragmatism and experiment. The main point is
that they achieve a measure of substantive justice that is not possible under capitalist
law, and capitalist economy.

law for the organization of a mode of production, and we have focused on how the
capitalist mode of production is reflected in the values and form of law. It has also
been argued that it is accurate to suggest that Marx argued that social action could

suggest that the main idea that animate however it is

achieved- the end of bourgeois law is the realization of a more just form of social
organization.

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Feminism

objective knowledge. Claims to truth or authority always are underpinned by

Discuss.

This statement is an accurate understanding of feminist legal theory. The question

largely addresses what the Study Guide calls feminist philosophy or epistemology,
and this can be linked to feminist understandings of law and ideology. The target of

jurisprudence considers the law. The fundamental point that feminists make is that
this claim to objective knowledge conceals claims to power. Thus, a jurisprudence
that seeks to show that the primary concern of the subject is the elucidation of formal
relationships between legal concepts effectively asserts that the social effects of law
are of no relevance to the subject. Such an approach might suggest that any concern

consideration of how law fails to protect women cannot b

There is a second target of feminist critique. To the extent that jurisprudence draws on
- that
ignores female ways of experiencing the world. This would be a second example of
the power of ideas to deny the validity of those ways of thinking and feeling that do

neutrality obscure the extent to which one can grasp the different ways in which

jurisprudence. The feminist response has been to show how formalist accounts of law
must be challenged so matters like rape and violence can be seen as central to any
understanding of the law and legal theory. Feminist philosophers have also shown
how it is possible to think and write in different ways; and to develop different
concepts of rights and ethics that suggest how law and legal concepts could be
rethought from an alternative perspective.

18.Should the law regulate sexual preferences?

One can approach this question from the perspectives of various jurisprudential
positions. Whilst there would undoubtedly be agreement, expressed from different
philosophical positions, about the requirement that human sexuality should be
regulated so as to discourage rape and sexual violence, the real issue is perhaps
philosophical disagreement over homosexual rather than heterosexual practices; and
the extent to which extreme and unconventional (but consensual) sexual practices
should be stigmatised by the law. The other major point of reference would be the
ongoing debate around pornography. This essay will examine these concerns from the
perspective of natural law, positivism and pro-and anti-sex feminism.

Positivists tend to approach sexual morality and the regulation of sexual preferences
in a liberal
way. As political liberals, positivists assert that sexual preference is a matter of
personal choice and desire. Whilst Hart was himself a homosexual, his work did not
expressly engage with this feature of his life- rather- he tended to assert the general

106
themselves sexually. In his debate with Lord Devlin, Hart tended to assert that public
morality could include pluralism, and this, no doubt would include toleration for non

sexuality, but,
regulation of sexuality can authoritatively prohibit sexual offences like rape and

with these concerns can perhaps best be indicated by his argument that there is a right
to use pornography provided that there is no strong evidence that this practice causes

personal liberty an
harm others, then the state has no business in regulating them.

One might imagine that Natural law approaches to these issues might take a slightly
different position. Finnis touches upon sexuality in Natural Law and Natural Rights,
but it tends to be understood in exclusively heterosexual and reproductive terms. This
might suggest a rather limited view of sexuality. Sex is not so much pleasurable as
functional; or, rather, its importance relates to the social importance of reproduction,
and the religious significance of human life. This might lead to a rejection of
homosexuality, a reluctant tolerance, or even a desire to support either through law or
and heterosexual desire to homosexual desire.
However, a natural law position does not necessarily have to take this position. One
could- - understand that homosexual desire is as natural as
heterosexual desire (there is no scientific evidence to the contrary). One could then
argue that a pluralistic sexual morality is important for the common good and human
flourishing.

Feminism has perhaps engaged with the issue of sexuality more extensively than other
forms of legal theory and jurisprudence. One of the fundamental insights of feminism
is that sex and sexuality are essential to understanding social relations and the
subordination of women. Whilst feminism can be seen as a movement towards sexual
liberation, it has always had concerns over the problems of sexuality- and the need to
regulate male sexual desire. One of the main points of reference, at least in

the alleged violence of pornography. Dworkin and MacKinnon argued passionately

that pornography harmed women and lead to abuse, violence and their objectification
as objects of the pleasure of men. Whilst this was aimed at pornography, both
ts of it) as
inherently problematic. These arguments point at the requirement for law to intervene
more extensively in areas of sexuality- and in ways that most liberals rejected as
limitations of personal liberty. Later feminists have also criticised this -

writers such as Rubin and Halley have also argued that the anti porn position
effectively led to the persecution and misunderstanding of those who engage
cons - as far as
homosexuality is concerned- is that invasive regulation of pornography and the
understandings of sexuality that support it feed into repressive agendas that seek to
promote the most limited understandings of human sexuality.

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Whilst MacKinnon and Dworkin distanced themselves from the way in which their
work and legal reforms were used against gay men and lesbians, feminism (and
jurisprudence) is perhaps still grappling with both male and female sexuality. One
could perhaps extend from general liberal premises to argue that the stigmatisation or
prosecution of those engaged in SM is un-necessary to the extent that their activities
are consensual. In conclusion, it would be fair to say that the issue of the regulation of
sexual preference has produced some major debates within legal theory and
jurisprudence, in particular around pornography, homosexuality and non conventional
sexual practices. Whilst on the whole- both positivists, natural lawyers and
feminists would largely support tolerance, if not the celebration of homosexuality,
particular points of tension have developed around pornography and extreme sexual
practices. Certainly these concerns have (for some) contributed to the split in the
feminist movement, and, there has been little explicit work on these themes from
either positivist or natural law perspectives. It would be fair to say that jurisprudence
and legal theory will be provoked by the themes of sexual desire for some time to
come.

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Miscellaneous

19.

This statement can be regarded as a useful approach to an understanding of equality.

Defining equality as requiring equal treatment of people as human beings suggests an
important way of specifying what underlies or justifies equal treatment. However,
rather than making for a single account of equality, the statement can perhaps best be
understood as drawing attention to the inherently contentious nature of arguments
about equality. This essay will argue that different approaches to equality might put
forward different understandings of how human being might be defined- and that
these definitions come to very different conclusions about what human beings are,
and what their equality requires. The argument will develop as follows. We will first
look at the different ways in which thinkers in the liberal tradition have defined
equality, before turning to more critical Marxist and feminist approaches to this
theme.

The fundamental idea of equality requires an egalitarian to specify how or why people
are equal. This is indeed an ideal, as the reality of the world shows in different ways
that people are not equal in wealth, talent or life chances. What would it mean to
claim that people should be treated equally because they are human beings? One thing
that this statement cannot mean is that human equality requires something like a
distribution of wealth on equal terms to all. It would be very difficult to understand
how such a scheme could be designed or carried out. Most contemporary approaches
to equality would argue something somewhat different. Thus, one might suggest that
people should be treated as equa
arguments which are both rational and distinctively human. If one makes a claim to
equality, one is expressing more than a personal preference. One is then rationally
compelled to actually act on the assertion that people are equals, because if not, one
would be irrational.

This understanding of the principle is useful in some ways. One can clearly appreciate
how it links to the idea of human beings as reasoning creatures who should act

other words, what is distinctive about thought and language is that it forces to think in
terms of what is not the case. This means that even if the world appears to be
characterised by inequality, it is necessary (and ideal) to think and act on the basis of
equality. However, it is difficult to how this would make any particular practical
sense. Indeed, one of the main problems we now need to confront is the different
ways in which equality and human being have been defined.

A useful reference point is utilitarianism. This is a complex moral doctrine, but is one
way of thinking about both equality and human beings. To take the second point first
of all. In the classic articulations of utilitarianism by Jeremy Bentham, human beings
are understood to desire the greatest happiness for the greatest number. The
fundamental claim is that human beings are both rational and have preferences that
need to be satisfied. Happiness or utility- is one way of further defining the
satisfaction of rational human preferences. Utilitarianism is also egalitarian, as it

109
influential, critics have argued that it effectively allows a majority to dominate a
minority. As this is a negative consequence, it may be that the utilitarian definition of
equality and human happiness is flawed as a way of thinking about the common good.

One of the major contemporary critics of utilitarianism was Ronald Dworkin. He

preferred to based his account of equality on the idea of the dignity of human beings.
Dworkin argued that government has to treat all citizens with equal concern and

political obligation. Precisely because government must respect the choices made by
its citizens, citizens are realised as human beings who are autonomous and able to act
on their own understandings of the good life. Thus, the idea of the human being that
ng of the rational nature of human

theory is not utilitarian, as dignity and rights place certain limits on what government
can do.
However it is important to see tha
being have been questioned. Hart, for instance, argued for a variation on the utilitarian
approach to equality. For Hart, human beings need resources in order for them to be
able to make important life choic

is also sceptical of rooting a morality of equality in an understanding of rights. If

nothing else, the legalisation of rights (the linking of rights with law) may have the

Despite their differences, the liberals that we have examined above would defend the
ry different understanding
of the idea. Like the liberals, Marx works with the idea of human being, but he comes
to very different conclusions about the political form that a good society would take in
order to give expression to human equality. We will de
human being, before turning to the arguments about socialism and communism. For
Marx, human beings are inherently valuable. Human value relates to the creative and
social nature of the human being. For Marx work can be understood as self creation.
This theory would be critical of the liberal idea of human individuality. Human
creativity and value is the fundamental reason why Marx is critical of capitalism.
Capitalism is inherently exploitative of human beings and alienates them from their
own nature. It would follow that the good society, which gives all equal opportunity
to express themselves and to realist their value as human beings, requires a revolution
which sweeps away capitalism. Thus, for Marx any discussion of liberal equality
presuppose the horizon of capitalism, and is thus ideological rather than an authentic
or proper understanding of what human equality requires.

There are variations on these themes in feminism. For feminists the idea of human
equality requires the
exclusively male terms. A proper idea of equality would have to be based on the fact
that men and women are different. If the human being is defined from the male
perspective, then it will exclude women and their experiences of the world. Equality
for human beings from a feminist perspective would have to take account of
patriarchal power which tends to work in the interests of men rather than women; or,
which creates and sustains ideologies of the world that are not in the interests of men
or women. Thus, feminists have been concerned (amongst other things) with ensuring

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that men and women have equal rights and opportunities to express their sexual
desires and preferences; and with fighting for equal opportunities for men and women
to have access to economic power and opportunity. Some feminists might use
variations on rights arguments, or arguments based on utilitarianism (or even some
combination of both these positions) to provide justification for their claims. Others
might be more sympathetic to a Marxist position. The equality of men and women
could only be achieved through a social revolution that changed the fundamental
reasons for human inequality.

This essay has argued that the concept of the human being provides a useful starting
point for thinking about equality. However, it is important to realise that equality and
the concept of the human being can be defined in different ways. We have seen how
utilitarian, rights based, Marxist and feminist arguments lead to very different
conclusions about how these terms are to be defined, and how they are to be translated
into broader political and moral understandings of the good society.

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A Tool Kit of Ideas for Jurisprudence

Critical Thinking and Essay Writing

Introduction

The focus of this document is to illustrate the process of critical thinking - and to try
and indicate how ideas can be drawn from readings and fed into the construction of
your argument. It addresses the problem faced by people writing an essay in
jurisprudence. The key point is that writing a good jurisprudential argument is not just
- it also about making your own judgements about
what you have read. This requires you to question what you have read, to weigh it up
and consider the strengths and weaknesses of the arguments being made. In other
words, you need to be able to think critically about what you read.

The second, third and fourth parts of this document focus on some general points
about revision and structuring an exam essay. The four parts are complementary, and
should be seen as a description of the basic skills in thinking about jurisprudence in an
informed and critical way and writing good exam answers.

I. Critical Thinking

making critical judgments. This is admittedly, rather artificial, but it will help us to
think about something quite tricky: how we think about thinking. To understand what
we are doing, you need to imagine that you are working on your essay and that you
have already brought together a number of key readings. We also need to imagine that
you have a reasonable idea of the theme or topic on which you are working. We have
come up with three exemplary areas. In each area we have focused on a couple of
passages from academic articles.

You can think of these as articles that you have come across during your research.
Admittedly, these might not be areas in which you are interested on, or would want to
research. It is also worth noting that they are not examinable. We have chosen them to
draw attention to the process of critical thinking and making judgements.

The first example looks at law and society and is the most straight forward. It shows
how we can use our critical judgement to understand and combine the arguments from
two essays to make a well informed point about how law functions. The second
example looks at Human Rights and Europe. This example moves on from the
exercise in the first example and is a little more sophisticated. We will examine how
we deal with arguments from essays that express different opinions. We will look at
two related skills: understanding the main points of an argument and making a critical
judgement on an issue of central relevance to a piece of research. The third example is
the most sophisticated. It is drawn broadly - from commercial law, and looks at the
relationship between contract and equity. We will elaborate our approach to see how
we build argument based on critical judgements.

First, we ensure that we have understood the arguments that we have read by making

112
a brief summary of them. We then reflect on the arguments we have read and
understood in order to make critical judgements about them. As we will show in the
second and third examples, critical judgements are based on the reasons that we can
give for agreement or disagreement with the arguments we have read. The third
example shows that we can build an argument by linking together our critical
judgements.

Example 1

The Ends of Law

Imagine that you have come across the following two paragraphs from Fuller and
Cotterrell and want to establish how they can help us to build an argument about two
aspects of law that we have been thinking about. The way that law can be coercive
(criminal law, for instance) but can also inform cooperative relationships (contract
law, for instance).

Roger Cotterrell,

Social & Legal Studies, 2011 20: 3-20.

s or life-styles; instead,
properly understood, it celebrates diversity. It prescribes minimum basic values within
which this diversity can flourish: i.e. those needed to facilitate society-wide
participation, communication, cooperation, and interdependence in social interaction

Lon L. Fuller
Law as an Instrument of Social Control and Law as a Facilitation of Human

Brigham Young University Law Review, 1975 1: 89-98

behavior, or do we, through rules of law, provide for our citizens a framework within
which they can organize their relations with one another in such a manner as to make
possible a peaceful and profitable coexistence? This question asks whether law, on the
one hand, is assigned the purpose of achieving social control over the behavior of
human beings; or whether, on the other hand, its function is to provide a means for
facilitating human interaction. The aim of pitting these two quite distinct conceptions
of the function of law against each other is not to pronounce which is "right." Neither
is the purpose to dismiss the whole problem simply by accepting both as "right." Each
conception does present perfectly meaningful ways of perceiving what human beings
attempt to accomplish through law. As we examine the different branches of law, we
perceive that in one area one of these views of the function of law may be more apt
and helpful than the other, though at times the two become so intertwined it is
difficult to pull them apart. There are contexts in which they fit together so closely
that they seem to merge; there are, on the other hand, contexts in which they stand in

we understand their argument. One way of doing this is writing a summary in your

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own words; another way may be simply to list what you think are the main ideas and
how they relate to each other. What follows is our summary:

Fuller asks whether law has two distinct social functions: a coercive function and one
which allows people to live together and inter-act. This is not so much a question of
determining which function is right or wrong; or attempting to assert that both are
right. Rather, it is to study the different ways in which the two functions inter-twine,
link together or stand opposed. Fuller is trying to describe the social complexity of
law. In other words, it does not just serve one social end.
Cotterrell argues that law is about diversity and must establish those fundamental
values in which diversity can express itself; and, indeed, to further social cooperation
We now need to make a critical judgement about these two passages. We could start
by thinking about whether the two writers agree or disagree with each other. There is
clearly a strong element of overlap in their arguments. This does not mean that all the
points they make correspond with each other; but it does mean that we can use Fuller
to support Cotterrell and to make a point about the law that brings together their
arguments. Thus, we could argue that Cotterrell is concerned with the diverse social
ends which law must serve. Fuller draws our attention to both the coercive and
cooperative ends which different kinds of law serve. Their arguments are evidence for
the position that law serves different social ends and that- following Fuller- these
different ends may be bound up together in complex ways.

Example 2

Human Rights and Europe

Human Rights Act and the relationship between English law and European Human
Rights law. We come upon the following argument:

"I like the UK to play a whole-hearted role in matters European," Bratza said. "I was
pleased to hear [the attorney general] Dominic Grieve say in parliament this week that
there was no question of leaving the ECHR. The UK leaving would be very
damaging."

The Guardian, 21st October 2012

The economic crisis may not help relations between London and Strasbourg, he said.
"Where there's a more general economic problem, it inevitably has an impact on
protecting human rights. There's risk that human rights become [seen as] a sort of

immigration or other matters which might be a further burden on the economy.

There's a risk always with an economic crisis that a society closes in on itself and
becomes less open to the idea of human rights. Human rights are not a luxury, they

in the passage. The fundamental

idea is that the UK must be completely committed to human rights. In particular, there

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is a risk that a government might begin to see human rights as either a costly burden
or a luxury and that this kind of thinking is used to dis-engage from human rights in
Europe.

In order to make a critical judgement, we need to ask ourselves whether or not we

broadly agree with the arguments made in the passage. We need to work out whether
or not we are sympathetic with its position. In this case, it may seem relatively

so much a question of being for or anti human rights (there is not, for instance, an
argument that the UK does not need human rights or even a Human Rights Act). The

To be more precise. Let us deal with the arguments that the present Conservative
government wants to bring in reforms that limit the scope of the Human Rights Act.
We come across the following statement in a Conservative policy document:

e issues of criminal law or

the liberty of the individual, the right to property and other serious matters. There will
be a threshold under which Convention rights will not be engaged and the UK courts

https://www.conservatives.com/~/media/files/.../human_rights.pdf
So, the first thing to make sure of is that we understand the main point. The proposal
put forward in the document is effectively to limit human rights to certain key areas
that are considered to be serious enough to warrant the protection offered by human
rights.

We now need to make a judgement. Given our two key documents, we need to ask

rights. You may say, at this stage, that you do not know enough and need to do some
more research. Fair enough. But, for the sake of this exercise, we need to commit.
Why? As we will show in much more detail in the next exercise making a critical
judgement is asserting a position; or, to put this in slightly different terms, preferring
one argument to another. In justifying a critical judgement, it is important to give the
reasons why you have taken any particular position.

preferable to that put forward by the Conservative policy document. This is because
human rights have to be consistent throughout Europe, it is not up to a national

human rights) and what is not ( i.e. a case that does not engage human rights.)

Of course, the process does not end here. What we have been trying to do is to look at
what is involved in making a critical judgement. In the next exercise we will go much
further in working from a critical judgement to an argument.

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Example 3

Trust or Contract?

This third exercise requires us to think critically about equity. The first thing to do is

author says about a subject. Summarising is not critical thinking. Critical thinking
starts when you make a judgement about the quality or persuasiveness of what you
have read

The idea of making a judgment appears straightforward. In terms of an essay a

judgement might simply be an assertion that what you are reading (or have read)
provides useful ideas for thinking about the subject matter of the dissertation. What
lies behind this idea of usefulness is your sense that the ideas have an accuracy or an
explanatory: perhaps they allow you to perceive patterns or to look beyond superficial
appearances to what appears to be the real substance of the subject that you are
studying.

In other words, when you have read an essay or an article, and once you have made
notes on the argument and summarised its main points, ask yourself: is this, for me, a
useful way of thinking? Do I agree or disagree, and why? How might I either build on
the argument or dispute it? What further questions does the argument raise in my
mind?

Making a judgement about what you read is not the end of critical thinking. You also
then need to be able to explain or justify the judgement that you have made in your
writing.

In order to illustrate these aspects of critical thinking consider the extracts below:

John Langbein, The Contractarian Basis of Trust Law, Yale Law Journal 1995,
105(3) 629

orm of

linked to its role in an institutional investment context. Corporate trustees have a wide
measure of discretion in their hands. The cast of the law that regulates this discretion
(the prudent investor principle) is not unduly restrictive as it would make it difficult
for investors to respond quickly to the opportunities that the market offered. The
supposedly onerous fiduciary duties of loyalty and good faith are not only ( at least in
the Restatement of Trusts) possible to contract out of, but, can be understood in a
contractual sense as the very terms parties would agree to if they had directly
considered the nature of the contract involved. That such terms appear as non-
contractual is but a trick of perspective that results from a failure to understand the

Langbein argues that trusts are rooted in contract and that this reflects the way that
they are used as vehicles for investments. Institutional investors need a great deal of

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discretion in order to invest effectively. The best way of thinking about the way in
which these investment decisions are regulated by law is to see them as resting on
terms that the investor and the person on whose behalf s/he is investing would agree
upon. They are less well understood as restrictive duties of good faith.

So far, then, we have made

We have not, strictly, begun to think about them in a critical way. We may have a
unproblematic- and perhaps a
good way of thinking about equity, but how can we move on?

We need to read another piece of writing, and ask ourselves if it supports or diverges

are perhaps developing a much richer understanding of a particular approach to

equity. However, if the extract diverges, then we have an interesting decision to make:
which approach do we prefer?

Marq. L. Rev. 1999

82 303

rovince of the law "Affiliations," or perhaps "Relationships."

Contract law is one of its parts. Another is fiduciary law-the law governing attorneys,
trustees, guardians, corporate directors, and partners. A fundamental change in the
jurisprudence and ethics of affiliations is underway, or at least several prominent
writers are attempting to work such a change. An insurgent theory asserts that
fiduciary relationships are really contractual in nature. [Scholars like John Langbein]
tell us: "Fiduciary duties are not special duties; they have no moral footing; they are
the same sort of obligations, derived and enforced in the same way, as other
But fiduciary relationships also have important features
which differ from those of loan transactions and agreements for the purchase and sale
of goods. Fiduciary law [is based on morality]. It delineates the ways in which such
relationships arise and identifies the standards of conduct to which a fiduciary must
conform, including requiremen

Fitzgibbons disagrees with the arguments put forward by Langbein and others. The
law that relates to trustee is founded on moral principles. It is not necessary to see the
trust as a contract as this approach fails to grasp the distinctive features of the
fiduciary- and indeed of the trustee- those zealous duties of loyalty to his/her
beneficiaries. This is why Fitzgibbons argues that fiduciary law must be grounded on
a
other in moral ways.

We now need to ask ourselves about the relationship between Langbein and
Fitzgibbon. With a little thought it should be clear that their thinking moves in
opposite directions. Fitzgibbon is stressing a moral element to the role of the
fiduciary, whilst Langbein understands the role of the trust in narrow, contractual
terms.

Which do you prefer?

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You might already think that you prefer one view to another. This depends on a
number of factors; your own values and understanding of the subject, for instance.

response, at this stage, is also fine. However, to write well you need to be able to take
a position, so you do need to do more critical thinking. How?

You could start by thinking about what you have studied on your law degree, doing
some wider reading in the subject, or even looking outside the immediate boundaries
of your subject. You will come to appreciate that there are different ways of thinking
about some key issues. For instance, if you read the articles that we have extracted
above, you would see that there is a tension in the study of the law of trust between

approach.

want to develop our argument. Critical thinking at this level means making your
argument the best it can possibly be. This means thinking through the most damaging
points that can be made against the position that you have taken. This is not best
conceived as an exercise that mech

against another. Rather, one has to begin by taking a stand. You are effectively saying
to the reader, I have considered the most damaging points that could be made against
my argument- and refuted them.

So, an example. On re-reading Langbein we find that one of the most damaging

component to fiduciary relationships is fuzzy edged rhetorical grandstanding rather

than economic analysis. How do we refute this?

We could see what Fitzgibbon himself thinks. Later in his argument he cites the
following judicial statement:

A trustee is held to something stricter than the morals of the market place. Not
honesty alone, but the punctilio of an honor the most sensitive, is then the standard of

Fitzgibbon is citing Justice Cardozo; a senior American judge and a figure celebrated
for his acumen and wisdom. It would be hard to argue that Justice Cardozo is
engaging in rhetorical grandstanding or fuzzy edged thinking. Cardozo is arguing that
the obligations of the trustee come from a source superior to the market; not simply
honour. Examples of such morals would be the relationship between

OK- so
makes our argument strong. How can we make it stronger still? We need to do some
more reading.

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We have simplified the process. Imagine that you have spent time doing literature
searches, reading articles (some helpful, some less so). You are trying to build your
argument that fiduciary relationships have moral elements and that this is not a form
of fuzzy thinking. Our argument will become stronger if we can develop what we
- or-
Trust: the Social Virtues and the Creation of Prosperity, and
that we have summarised and understood it.

We find that the following statement from Fukuyama most usefully sums up his
argument- and-

which themselves serve to structure the market. Hence it is more likely that a
successful market economy...is codetermined by prior factors of social capital [if this

Fukuyama (New York: Free Press, 1995, 356)

Morality can be understood as those norms that allow social cooperation. In order to
build our argument, we cannot jump from point to point- rather- we need to show how
our key idea (that fiduciary relations are also moral relations) can be
explained. So, in making use of Fukuy
it to the reader in our essay-

uments that we have already read- but-

adds something new and distinctive.

Whether or not we wa
question. If they are not economic ideas, why use an economic term to explain them?
- only the bits that seem most
helpful to us, in that they build and develop our main themes.

Conclusion

So, in summary, we have seen that critical thinking has two stages. First, we have to
make a summary of an argument. Then, we need to make a judgement about the
relevance or usefulness of an argument. We can then go on to build our argument by
linking together a series of critical judgements informed by our reading.

II. Exam Revision

1. The importance of timing. You have to answer four questions in three hours
(check the rubric!). This means that you have 45 minutes a question. You must
stick to the allotted time per question, as you must finish the paper. If you
have not finished a question in time, move on to the next question.
2. Make sure that you answer the question set. This means you must be careful to
read and understand the question on the exam paper.

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 3. Good exam answers are the product of effective revision. Revision is a
protracted process give yourself enough time to revise the course.
4. Effective revision is about understanding a particular area. This does not mean

I explain the topic to someone else?

5. Practice writing exam answers in 45 minutes.

III. How to Write an Essay

of the three secondary rules Hart identifies. All three of the secondary rules are
equally necessary for the existence of a modern municipal legal system, and
depending upon the social and political context, at one time one of the three rules will
be more important than th
Discuss.

The way into this question is to start by clarifying the rule of recognition and the other
secondary rules that Hart discusses in The Concept of Law. We can then start to think
about what the question is actually asking us to think about.

So, we know that Hart distinguishes between: 1) A rule of recognition 2) Rules of

change and 3) Rules of adjudication. We also know that Hart distinguishes between
secondary rules and primary rules of obligation. The fusion of primary and secondary
rules provides a foundation for a modern legal system. Hart means that modern law is
complex and systematic. It is not simply a collection of rules that command people to
m is a system distinguished from other bodies of
rules and capable of issuing authoritative rules and, of changing itself: repealing old
laws and creating new laws. The idea of the secondary rules relates to the autonomy
of modern law: i.e. law defines itself as such. It issues authoritative rules that cover
any area of social and economic life; it can also change and regulate itself.
We now need to close in a little on the question that we are being asked to consider.
The starting point of the question is that the rule of recognition is not the most
important of the three rules; indeed, the question is asserting that we need to see three
secondary rules as essential to a modern legal system. Note the precise wording of the

probably appreciate that it would be wise to agree with this particular part of the
question.

political context, at one time one of the three rules will be more important than the

decided that we have to agree with the first part of the question: we have to see the
secondary rules existing as a whole, and providing a definition of modern law. We
now need to think about a related point. This might be a little more difficult as we are
hinking. In other words, we need to think why certain
political and social conditions might make one of the three rules more important than
another. What sense can we make of this?

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Our first step is to go back to our definition of secondary rules and expand it a little.
The rule of recognition demarcates the legal system as a body of rules; rules of
change allow old rules to be repealed and new rules to be made. Rules of adjudication
relate to the operation of the courts and how legal disputes are settled.

To apply this theory, we need to think of situations in which one of the three rules
may be more important than the others. So, (and this is to pick up on one of the
themes that runs through the Study Guide), a revolution might raise a fundamental
question about the rule of recognition. A successful revolution would change the rule
of recognition to the extent that the revolution was able to put in place a new legal
order (this point is also discussed on the VLE video about the Arab Spring and the
Egyptian Revolution). It would follow that in such an extreme situation, the rule of
recognition would be the most important of the three rules, as there may be
fundamental legal and political change. In less dramatic circumstances, another of the
three rules might come into focus. Thus, if we were concerned with a question of the
effectivity of law, then we might want to think about rules of legal change. We might
be concerned with repealing law that had become anachronistic ( R v R, for instance)
or with creating new law (for instance, opening the Court of Protection to greater
media scrutiny, a matter currently in the news in the UK. See
).
Finally, we may be concerned with the way in which courts adjudicate cases. The
work you did in CLRI on the Woolf reforms of civil justice provides an example here.
perspective, are clearly concerned with
how civil cases are dealt with by the courts. They are not concerned with primary

cated by judges ( or indeed other

legal personnel).

So, having thought about the question, we can now sketch out the starting point of our
answer. We want to agree with the three central claims that the question is making.

important of the secondary rules. Secondly, all three rules are necessary for the
definition and functioning of a modern legal system. Thirdly, depending on the social
and political context, one or other of the three rules might appear more important than
the others. We are asserting that the secondary rules have to be seen as a whole, and
are, taken as such, fundamental to the existence and structure of a modern legal
system.

Once we have elaborated our basic response to the question (our thesis), the structure
of the essay itself should become clearer. Thus, if you read back over this posting, you
will see that the essay could follow the structure of our argument. So, after the
introduction that states our thesis (as outlined above), we could then touch upon the

121
definition of the secondary rules and show why and how they structure a modern legal
system. After a couple of paragraphs discussing these basic concerns we could go on
to elaborate the argument about the social and political conditions in which one of the
three rules might appear more important than the others. The essay would conclude
with a final paragraph that overviews the argument and reminds the reader of our
main points.

IV. Summary: Writing Exam Essays

Part I: Preparing to answer the question

1. Read the question and think about it.

2. Your introduction should state your key thesis i.e. what do you think about
the precise question that you have been asked.
3. DO NOT WRITE OUT YOUR NOTES. THIS IS NOT ANSWERING THE
QUESTION.
4.
I agree or disagree with the statement that the question makes? Then ask
e you to the material relevant to
the question. This will allow you to build your argument.
5.

and then defend it. This is a version of (4) above.

Part II: Planning and structuring your answer

1. You cannot begin to plan your answer until you have completed part 1 above,
as the structure of the essay is essentially the form your answer takes.
2. Your answer must be a coherent development of an argument that has a clear
introduction and conclusion. Every sentence that you write must build your
argument and respond directly to the question that you have been asked.
3. Your answer must begin with a clear response to the question. Your answer
must begin by responding directly.
4. How does the argument develop? The structure of your argument follows the
logical development of your key thesis. Thus:
(a) Introduction: state what you are going to argue
(b) Why do I think (a)?
(c) (a) must lead to other points ( b, c, d for example). Your argument
must give a sense of discretely organised points that build on each
other and persuade the reader why you have asserted the opening
statement of your essay. You might like to think of each point as a
paragraph- but- a paragraph will probably contain a number of
sentences that develop each point ( b(i) (ii) (iii); c (i) (ii) (iii) etc. )

5. A good essay also has a conclusion that reminds the reader of the key thesis
that has been put forward, and returns to the terms of the question.

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