Jurisprudence Questions Answered 100% correct 2023

Jurisprudence Questions Answered 100% correct 2023 Definition of jurisprudence: * This is described as the philosophy or theory of law. It derives from the Latin word, juries prudentia (which means to study *Aquinas in 1809: "the principal and most perfect branch of ethics" *It has been used as a mechanism to set limits to law and also to provide justification for its means by being aware of its ends Normative jurisprudence: *This has already established what jurisprudence is, it aims to understand the moral basis for law *What the law ought to be *It seeks to provide a theory which determines which is morally right *What rights to we have? *What rights are we ought to have? *Cierco: "law is right reason in accordance with nature" *Aquinas: "law is an order of reason serving the common good" Analytical jurisprudence: * This is the study of law at its most abstract level *This seeks to ask questions of what actually is the law? and what the relationship of law and morality is? *Looks at areas of legislating and judging *Those who are analytical jurisprudists are typically legal positivists *Kelsen: "Law is a unified hierarchy of norms" *Hart: "law is the union of primary and secondary norms" Sociological approaches: *This is how law differs from or is related to other areas such as economics or as a society as a whole *Max Weber: "an order will be called law if it is externally guaranteed by the probability that coercion, to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose" Can there is a single conception of law?: *it can be described as a meta-theory *Like an apple: they have an essence defined by genus and differential *Like a triangle: these exist, but never exist perfectly in reality, they are an archetype an ideal Natural Law: *This deals with what are valid legal rules or sources of law and is based on the idea that the sources of law include a moral test of validity *Theorists like Aquinas and John Finnis have appealed to a higher authority if law because it is determined by reason and is capable of producing just and fair laws which have moral authority Legal positivism: *Classical, there is no connection between law and morality *only law enacted by government or the state have legal authority *Modern, like Raz, there can be some link between morality and law but it is unnecessary to use moral arguments to discover the law Legal realism: *Only the real word legal practices of judiciary influence and the development of law, as judges determine the content of legal rights and duties according to public policy and prevailing interests of the wider society rather than compliance with abstract moral rules Help with answering such questions: (1) Explain what is law, not just a simple matter of judicial precedent (2) Address the idea of law in context, influenced and interpreted culturally, socially, theologically, politically and historically significant (3) Explain how these belong to certain distinctive schools of jurisprudence (4) Mention examples or issues form the past or modern issues which illustrate the continuing need for jurisprudence, like the permitting of torture or legalising euthanasia Thomas Aquinas (): *His key work was Summa Theologica *Core message of his work is that moral standards/moral law derives from the nature of the world and human beings within it, natural law is "the ordinance of reason" *Human beings have the capacity of reason which enables them to deduce right actions towards the "common good" *Laws must be reasonable, they must be directed towards the common good and not serve the private interest of a few individuals, this means that a government which enacts unjust laws lacks moral authority and surrenders any right to obedience Thomas Aquinas 2: *Aquinas pre-conditions for the enactment of a law: (1) made for the common good (2) made by the whole people or by God's vice regent for the whole people who is the monarch ruling for the divine right (3) promulgated Thomas Aquinas () 2: *Lex Aeterna (eternal law): this is timeless laws which apply to the whole community or the universe, they are governed by God. Eternal law is not knowable as we cannot know the theory of everything. For example, we do not know what the sun is really like, we only have an imperfect idea of its nature gained by observing its effects on Earth. *Lex Divina (Divine law): law revealed by the scripture and divine revelation and not by human reason *Lex Naturalis (natural law): that part of eternal law which is discoverable by reason. The first precept of natural law derives from one's rational nature towards avoiding evil and only doing good, which are considered to be both universal and objective aims *Lex Humana (human law): supported by human reason and articulated via human authorities for the common good; a human law is only valid if it conforms to the content of the general principles of natural law Quotes from Summa Theologica: * "(Law) is nothing else than a rational ordering of things which concerns the common good; promulgated by whoever is charged with the care of the community" "Law is a rule or measure of action in virtue which one is led to perform certain actions and is restrained from the performance of others" * "Reason has the power to move to action from the will. Will if it is to have the authority of law, must be regulated by reason when it commands" *"The law must have as its proper-object the well-being of the whole community [...] We call that legal and just which makes for and preserves the well-being of the community through common political action" *Who has the right to promulgate law?: "the task of the whole community if some one person who represents it" *"Man made laws may differ from state to state but the natural law is the same everywhere" Oliver Wendell Holmes, Jr (): *An american legal realist * He discovers law as it is, by looking beyond the rules to the way which courts actually reach their decisions *His most famous work was "The Path of Law" (1897) *Holmes like other realists claimed that judges make law at more frequent intervals than is commonly presumed. There is no pre-existing law on which judges, through time, have been able to rely on *He attacked the concept of natural law and believed that there are no objective standards which can determine right or wrong, so the idea of "just" or "moral" answers to legal questions is misleading *He asserted that moral concerns have nothing to do with law as they amount to little more than a state of mind (obvious synergies with legal positivism) *He insisted that the focus of law should be as it is practicised and stated that the notion of common law is "a brooding omnipresence in the sky" Oliver Wendell Holmes, Jr () 2: *Four main themes of his work: *The law is an evolutionary process. It is the product of experience and not logic. It reflects society's adaptation to the changing world *The courts play a vital role in the evolution of the law by actively reforming the law to suit changing conditions. Decisions of the appellate courts are presented as logical deductions from established rules, but in fact they are legislative in nature . Courts make new rules for new conditions *Statutes depend for their efficiency on the courts and hence they are not law until they are enforced by the courts *Law, for the above reasons, turns out to be nothing more than predictions about how the courts will decide a dispute Holmes and The Path of Law: *The duty of lawyers is to advise the client about the chances of success the case will have if it goes to court *In this text Holmes made the claim that law consists only of predictions of what the court will do in a particular case: "the primary rights and duties with which jurisprudence busies itself again are nothing but prophecies" - these prophecies lie scattered within statute books and law reports, the lawyer's job is to generalise them and reduce them to a manageable system *Therefore, if the law is nothing but predictions of what the court will do, the best way to discover the law is to see it from the viewpoint of a really bad man - his logic is that a good man does not try and test the law, but the bad man is always trying to get away with what he can *The study of law is, "prediction, the prediction of the incidence of the public force [reward or punishment] through the instrumentality of the courts" * The bad man, "only cares for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conduct" *Therefore, this view is focused on wrongs. A good man will want to know the law as it is so that they can be law-abiding citizens *Law as a prophecy is about what courts do when faced with a dispute/claim Karl Llewellyn (): *He was a mainstream realist who believed that law should reflect the "reality" of society; he referred to legal rules as "pretty play things" *His functionalist account of the law elucidates the law as an "organised activity" undertaken by greater and lesser legal actors for a variety of legal purposes *He was preoccupied with how law was a "technology" rather than a "philosophy" and so insisted that law is an engine which has "purposes" and not "values in itself". He argued that law functioned as a major social institution which not only had responsibilities for ensuring the preservation of the legal community but also assumed a wider societal obligation Karl Llewellyn () 2: *He reffered to the basic functions of law as "law jobs" - using this framework to asses the legal institution's contributions to society such as relating to the greater good of society *Basic functions of which law has to perform: (1) prevent trouble cases, such as channeling conduct within the community. This may relate to practical measures like traffic regulations (2) Resolve disputes which arise between members of the community such as the rules governing contract (3) The organisation of society to provide the possibility of integration, direction or incentive such as enacting legislation which prohibits racial discrimination (4) The allocation of authority and establishment of specific procedures which are recognised and accepted within the community (5) Establish procedural rules (juristic method) for performing other tasks within the legal organisation (such as a judge) who all have different ideas of legal rules and how these should be performed LEGAL POSITIVISM: *Legal positivists suggest that law, properly directed, is not dedicated to the interest it ought to serve, rather to those it must serve from practical and procedural points of view The separation thesis: *This is the idea that there is no necessary connection between law and morality, this is because it is claimed that there is no requirement that a law must satisfy moral demands *The validity of a legal norm is established on the basis of its provenance and not its moral correctness - therefore, there is no necessary relationship between what the law IS and what it OUGHT to be *Austin in The Province of Jurisprudence Determined: "A law, which actually exists, is a law, though we happen to dislike it, or though it may vary from text by which we regulate or approbation and disapprobation" *Such as, a murderer fails to give weight to their moral obligation not to murder, it is unlikely that they will acknowledge a moral duty to obey the law of murder, the only threat of sanction is an effective deterrent *Thus, laws can be perceived as unjust or evil, yet citizens are bound to obey them and officials are entitled to punish any act of defiance The sources thesis: *What is and what is not can be identified by social facts Thomas Hobbes: *His work was seen to influence the views of Austin and Bentham *His most famous work is Leviathan (1651) *He identified law with "command". Such as when a man say "do this" or "not do this" without expecting reason than will of him says it *Hobbes considered law to be a matter of empirical social fact underpinned by the dictate of a coercive sovereign authority which commands our respect and obedience without a moral evaluation Jeremy Betham (): *He was a utilitarian: "greatest good for the greatest outcome" - 'I have built solely on the grounds of utility". Based on the goal of happiness *He perceived the common law as arbitrary and based on unconnected rules as well as being too susceptible to judicial creativity *Bentham described natural rights as "imaginary rights" *Bentham's concept of law: "law is a set of commands backed by threats all of which [...] can be traced directly or indirectly to a common sources in the legislative acts of the sovereign whose sovereignty rests on the habit of obedience of the bulk of community" Jeremy Betham () 2: *censorial juris: this tell us what the law should be (normative) *Expository juris: this tells us what the law is (positivist approach) *Betham is a positivist as accepts the sources thesis and the separation thesis and adopts a form of normative legal positivism... *Law allows individuals to plan for the future and achieve expectations, once there is a stable framework of social relations it is possible to reform and alter these to meet the demands of the maximum general welfare Bentham attack on common law: *He called common law, dog law. "When your dog does anything you want to break him of you, you wait till he does it then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for me and you" Bentham attack on natural law; *"Shrouded in mystery and tradition worship, it was pathologically opposed to reform, and it induced and perpetrated mental slavery of the people" John Austin (): *Key works: "Providence of Jurisprudence Determined" (1832) *Advocates analytical legal positivism *Has a more straightforward methodological positivism which influenced the development of analytical jurisprudence *His key concepts were based on legal right and legal duty *Laws are laid down by political superiors (the sovereign). "Laws are laid down by political superiors to be followed by political inferiors" *Sovereign power can be seen as unlimited *Law is a matter of positive law, law is simply (a) the command of the sovereign having the authority to issue orders and is (b) backed by the threat of sanction for disobedience (c) the bulk of the population obey it *Command: "if you express or intimate a wish that I shall do or forbear from some act, and if you visit me with an evil in case I comply not with your wish, the expression or imitation of your wish is a command" *Sanction:"The evil which will probably be incurred in case a command be disobeyed or in case a duty be broken, is frequently called a sanction, or an enforcement of obedience" *Laws properly so-called: laws of god and human laws, and positive laws (these come from sovereigns) "But being commands they are always properly so called, they are armed with sanctions, and impose duties" "Laws set by subjects as subordinate political superiors, are positive laws: they are clothed with legal sanctions, and impose political sanctions" *Laws improperly so-called:these are laws of analogy such as the laws of chess, laws of morality "they are not commands of sovereigns, in the character of political superiors. Consequently, they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set" Austin's utilitarianism: *He was a close friend of Bentham and this shaped his jurisprudential thinking *Austin regarded the law of God as revealed in the scriptures as the primary source of moral rules, he accorded to these laws, the status of "laws so properly called" * A God sills the greatest happiness of all his creatures, reason leads us to the principle of utility * Laws "so-properly called" were named positive laws to signify laws made by the sovereign and its delegates *Positive law or the "law simply and strictly so called" is the "law set by the political superiors to the political inferiors" Austin's respect for common law: *Judicial lawmaking is not only inevitable but is also an unambiguous public good *"The part of the law every country which was made by judges has been far better than that which consists of statutes enacted by the legislature" *Austin rejected the robotic fire of the judicial function. The world is too complex and dynamic for the law to be exclusively the product of a legislature whose members are preoccupied with immediate affairs of state and electoral politics Austin's taxonomy: *Laws properly so called: these derive from the sovereign *Laws by analogy: these resemble proper laws but to varying degrees but are merely the opinions of persons as to what or what ought not to be done such as customary laws, moral laws and divine law