STUDYCLOCK EXAM REVIEW
L UNIVERSITY
OF LONDON
L
B 2017/18
Jurisprudence and Legal Theory
Lecture Notes
Advance Tertiary College (ATC)
ITC School of Laws
, Contents
Chapter 1 Natural Law 1
Chapter 2 Positivism – Austin and The Command Theory 25
Chapter 3 H.L.A Hart’s Concept of Law 39
Chapter 4 Hans Kelsen & The Pure Theory of Law 64
Chapter 5 Joseph Raz 89
Chapter 6 Ronald Dworkin 97
Chapter 7 Utilitarianism 129
Chapter 8 Feminist Legal Theory 145
Chapter 9 Marxism & Sociological Theories 160
,Bachelor of Laws Level 6
Jurisprudence & Legal Theory
Natural Law
_____________________________________________________________________________________________
Natural Law
Contents
A. Natural Law – A Point by Point Summary
B. Natural Law Theories – General
C. Classical Natural Law
D. Natural Law Theories and their Application
E. The development of Natural law theories
F. The 'deductive fallacy' argument - the epistomological criticism
G. Natural Law & the 20th Century
H. The Nazi Grudge-Informer Cases.
I. The Hart-Fuller discussion.
Learning Outcome
Students are expected to have a thorough understanding of classical natural law as well as the modern
natural law theories of Finnis and Fuller. As natural law’s chief critics were positivists, students are
expected to understand the positivistic response to natural law and the critical arguments raised by them
against natural law. In this context, students ought to be aware of the Hart- Fuller debate as well.
Essential Reading
1. Lloyd’s Introduction to Jurisprudence by M.D.A Freeman, Sweet & Maxwell
or
2. Penner, Jurisprudence and Legal Theory: Commentary and Materials (LexisNexis)
Further Reading
1. ‘The Appeal of Natural Law’ from The Politics of Jurisprudence by Roger Cotterrell, (LexisNexis).
2. “Natural Law and Moral Truth” from Legal ‘Philosophies’ by JW Harris (OUP)
3. Morrison, W. Jurisprudence from the Greeks to Post-modernism. (Cavendish)
4. Natural Law & Natural Rights: John Finnis
5. The Morality of Law: Lon Fuller
A. NATURAL LAW – A SUMMARY
1. Introduction
According to Friedman, “The history of natural law is a tale of the search of mankind for absolute justice
and of its failure.”
“With changing social and political conditions the notions about natural law have changed. The only thing
that has remained constant is the appeal to something higher than positive law”
2. Approach to Natural Law
There are two ways of approaching a study of natural law theories. They are:
(a) Natural law is to be regarded as a higher law, which invalidates any inconsistent positive
law, and
(b) Natural law is to be regarded as an ideal to which positive law ought to conform without
its legal validity being affected.
3. What is Natural Law
Dias states that the term ‘natural law’ has been variously applied by different people at different times as
follows:
(a) Ideals which guide legal development and administration.
(b) A basic moral quality in law, which prevents a total separation of the “is” from the “ought”.
a. The method of discovering perfect law.
b. The content of perfect law deducible by reason.
c. The condition sine quibus non for the existence of law.
1
ATC / ITC School of Laws
, Bachelor of Laws Level 6
Jurisprudence & Legal Theory
Natural Law
_____________________________________________________________________________________________
Wortley indicates that the concepts of natural law may be of great importance as a source of:
(a) “values” which the legislators may consider for bringing changes in law.
(b) “reason” which the judges may consider in the exercise of their discretion;
(c) “theories” of international law.
How does one discover these “higher laws” or “ideals”? This is where natural lawyers differ.
Jurist Method of discovering law
Thomas Aquinas, Augustine Revelation
Grotius, Hobbes, John Locke Reason
Rousseau General will of society
Kohler Social fact
Duguit Social solidarity
Finnis Self-evident
4. Central Themes of Natural Law
According to Curzon, the central themes of natural law are:
(a) Natural law is based on value judgements, which originate from some “absolute” source, eg
revealed word of God. These judgements are in accordance with nature and are discoverable by
reason.
(b) The entire universe is a manifestation of these value judgements. Therefore, these judgements
are immutable and eternally valid.
(c) It is only through proper human reasoning that natural law values can be grasped and
understood.
(d) Positive law is subject to natural law in that natural law over-rules positive law to the extent that
they are in conflict.
(e) Law is an essential necessity for a man’s life in society.
5. Decline of Natural Law
(a) Excessive individualism resulting in the French Revolution led to a reaction against natural law
theories.
(b) Scientific theories had stolen a march over the unproved hypotheses upon which the theory of
natural law was based.
(c) Law became secularized because society developed a secular attitude towards many aspects of
life, including religion.
(d) Historical research proved that in primitive society, the prevailing idea was that of status and not
of contract or “social contract”.
(e) As society became more complex, it became difficult to accept the “a priori” reasoning of natural
law.
(f) There was a belief that improvements in the law could be brought about empirically, without
appealing to “pure reason”.
(g) Psychological and anthropological researches stressed that law and justice were determined by
adaptation to environment and other variables. This cast serious doubts on the immutable and
eternal aspect of natural law.
(h) The growth of the school of positivism became a serious threat to natural law doctrines.
6. Revival of Natural Law
Natural law enjoyed a period of revival in the twentieth century. The chief reasons were:
(a) The search for values in written constitutions. The American Constitution for example, is value –
laden.
(b) The analytical and historical schools of jurisprudence could not provide adequate solutions to
issues such as justice, freedom and rights.
(c) The First World War utterly destroyed the economic, social and political stability in Europe. It
became necessary to establish norms based on lasting values to evaluate man-made rules.
(d) During the Second World War, there was brutality and anarchy in some countries and well-
organised governments in other countries. Relativism was questioned. Radbruch, a German
2
ATC / ITC School of Laws
L UNIVERSITY
OF LONDON
L
B 2017/18
Jurisprudence and Legal Theory
Lecture Notes
Advance Tertiary College (ATC)
ITC School of Laws
, Contents
Chapter 1 Natural Law 1
Chapter 2 Positivism – Austin and The Command Theory 25
Chapter 3 H.L.A Hart’s Concept of Law 39
Chapter 4 Hans Kelsen & The Pure Theory of Law 64
Chapter 5 Joseph Raz 89
Chapter 6 Ronald Dworkin 97
Chapter 7 Utilitarianism 129
Chapter 8 Feminist Legal Theory 145
Chapter 9 Marxism & Sociological Theories 160
,Bachelor of Laws Level 6
Jurisprudence & Legal Theory
Natural Law
_____________________________________________________________________________________________
Natural Law
Contents
A. Natural Law – A Point by Point Summary
B. Natural Law Theories – General
C. Classical Natural Law
D. Natural Law Theories and their Application
E. The development of Natural law theories
F. The 'deductive fallacy' argument - the epistomological criticism
G. Natural Law & the 20th Century
H. The Nazi Grudge-Informer Cases.
I. The Hart-Fuller discussion.
Learning Outcome
Students are expected to have a thorough understanding of classical natural law as well as the modern
natural law theories of Finnis and Fuller. As natural law’s chief critics were positivists, students are
expected to understand the positivistic response to natural law and the critical arguments raised by them
against natural law. In this context, students ought to be aware of the Hart- Fuller debate as well.
Essential Reading
1. Lloyd’s Introduction to Jurisprudence by M.D.A Freeman, Sweet & Maxwell
or
2. Penner, Jurisprudence and Legal Theory: Commentary and Materials (LexisNexis)
Further Reading
1. ‘The Appeal of Natural Law’ from The Politics of Jurisprudence by Roger Cotterrell, (LexisNexis).
2. “Natural Law and Moral Truth” from Legal ‘Philosophies’ by JW Harris (OUP)
3. Morrison, W. Jurisprudence from the Greeks to Post-modernism. (Cavendish)
4. Natural Law & Natural Rights: John Finnis
5. The Morality of Law: Lon Fuller
A. NATURAL LAW – A SUMMARY
1. Introduction
According to Friedman, “The history of natural law is a tale of the search of mankind for absolute justice
and of its failure.”
“With changing social and political conditions the notions about natural law have changed. The only thing
that has remained constant is the appeal to something higher than positive law”
2. Approach to Natural Law
There are two ways of approaching a study of natural law theories. They are:
(a) Natural law is to be regarded as a higher law, which invalidates any inconsistent positive
law, and
(b) Natural law is to be regarded as an ideal to which positive law ought to conform without
its legal validity being affected.
3. What is Natural Law
Dias states that the term ‘natural law’ has been variously applied by different people at different times as
follows:
(a) Ideals which guide legal development and administration.
(b) A basic moral quality in law, which prevents a total separation of the “is” from the “ought”.
a. The method of discovering perfect law.
b. The content of perfect law deducible by reason.
c. The condition sine quibus non for the existence of law.
1
ATC / ITC School of Laws
, Bachelor of Laws Level 6
Jurisprudence & Legal Theory
Natural Law
_____________________________________________________________________________________________
Wortley indicates that the concepts of natural law may be of great importance as a source of:
(a) “values” which the legislators may consider for bringing changes in law.
(b) “reason” which the judges may consider in the exercise of their discretion;
(c) “theories” of international law.
How does one discover these “higher laws” or “ideals”? This is where natural lawyers differ.
Jurist Method of discovering law
Thomas Aquinas, Augustine Revelation
Grotius, Hobbes, John Locke Reason
Rousseau General will of society
Kohler Social fact
Duguit Social solidarity
Finnis Self-evident
4. Central Themes of Natural Law
According to Curzon, the central themes of natural law are:
(a) Natural law is based on value judgements, which originate from some “absolute” source, eg
revealed word of God. These judgements are in accordance with nature and are discoverable by
reason.
(b) The entire universe is a manifestation of these value judgements. Therefore, these judgements
are immutable and eternally valid.
(c) It is only through proper human reasoning that natural law values can be grasped and
understood.
(d) Positive law is subject to natural law in that natural law over-rules positive law to the extent that
they are in conflict.
(e) Law is an essential necessity for a man’s life in society.
5. Decline of Natural Law
(a) Excessive individualism resulting in the French Revolution led to a reaction against natural law
theories.
(b) Scientific theories had stolen a march over the unproved hypotheses upon which the theory of
natural law was based.
(c) Law became secularized because society developed a secular attitude towards many aspects of
life, including religion.
(d) Historical research proved that in primitive society, the prevailing idea was that of status and not
of contract or “social contract”.
(e) As society became more complex, it became difficult to accept the “a priori” reasoning of natural
law.
(f) There was a belief that improvements in the law could be brought about empirically, without
appealing to “pure reason”.
(g) Psychological and anthropological researches stressed that law and justice were determined by
adaptation to environment and other variables. This cast serious doubts on the immutable and
eternal aspect of natural law.
(h) The growth of the school of positivism became a serious threat to natural law doctrines.
6. Revival of Natural Law
Natural law enjoyed a period of revival in the twentieth century. The chief reasons were:
(a) The search for values in written constitutions. The American Constitution for example, is value –
laden.
(b) The analytical and historical schools of jurisprudence could not provide adequate solutions to
issues such as justice, freedom and rights.
(c) The First World War utterly destroyed the economic, social and political stability in Europe. It
became necessary to establish norms based on lasting values to evaluate man-made rules.
(d) During the Second World War, there was brutality and anarchy in some countries and well-
organised governments in other countries. Relativism was questioned. Radbruch, a German
2
ATC / ITC School of Laws
