LAWS08129 Jurisprudence summarized Notes

Jurisprudence Lecture 1 15th September

Course

Divided into 3 sections

1st: Law as a legal system

2nd Law and morality

3rd How law interacts with society and other outside influences

Different sections correspond to different traditions/views of jurisprudence. Can be seen
as antagonistic but also as different part of complimenting cohesiveness



What is jurisprudence?

As a subject

 General
o Looks at general truths about law
 Law is found in all different laws throughout different societies in
history. All are meant to serve or produce law, transcend the
limitations of space and time.
 Legal norms
 Standards of behaviour
o Do or do not
o You have the right to do something
o What is right and wrong to do according to the law
 Rules and principles
o Rules are generally norms
o Principles are more general. Considered as existing
without a presence in a formal legal text/in the
thinking of a judge
 Origins of law
 Don’t use sources as it has positivist implications
 What the judges say/officials or
 What the judges say/officials as far as society agrees
 Legal authority
 Binding force of law
o Might say that law is binding only to the extent that
statutes make sense in regards to justice
 Law might put someone in jail without any
real moral reasons
 Similar to legal norms
 Legal reasoning
 Ways of arguing
 Necessary to reach valid judicial decisions?
 Legal practice
 Ways to go to court
 Multidimensional
o Descriptive

,  Helps us to understand what law is here and now , there and then
without any valuation whether it is good/bad
 What made it law
o Aspirational
 Suggests we should mostly emphasise how well these legislative
laws/judicial decisions do in reflection on society
 Law has a mission to bring about, what is the values?
o Explanatory
 Brings together the two
 Says that this is the law, make an evaluation but go beyond that
and find out the social conditions/pragmatic environment that
brought about that law.
 Goes beyond making an evaluation
 Definitional
o Law as” institutional” “normative” “order”
 Neil maccormick
 Not just institutional
o Not all humanely recognised and formalised practices
are law
o Family is an institution, starts without the
interference of law
o Law is also institution, formalised in its own way
 The constitution gives different values and
also the courts
o Not all institutions are law
 Not just normative
o Not all forms of binding action-guidance are law
 Law guides our behaviour and shapes it
 Some actions have sanctions that persuade
folk from performing an action.
 However, personal moral values are
norms that persuade folk
 Religious values are also norms
o Neither are laws
 Not just order
o Not all systems of posited/customary rules are law
 Posited
 Put forward by legal officials. Eg judges
or elected officials in parliament
 Customary
 Comply with it simply because we
know it as practice
o Lots of social rules
 But also within law as
well
 Less developed
societies have this
o Law is all of these things together
 Contested
 practical

,The inquiry into the concept of law and how such an enquiry can be useful in practical
everyday life. Jurisprudence considers law as a being with its own existence



A contested and practical subject

 each case of litigation/prosecution has an element of contestation. Both parties
say they are right and are supported by the law. This is how law is practiced,
through the resolution of contestation, both in the courts and the parliament
 5 judge archetypes how they are different ways to resolve contested issues
o The positivist
 The law is what it says in these texts and pronouncements we
recognise as the authoritative sources of law
o The formalist
 The law is the answer you get when you follow the rules and
procedures to the letter
 Follow the statutes but goes further and interpret them in
the strictest way possible. What does justice mean in this
structure of interpretation.
o The realist
 The law is simply a vehicle for our preferred outcome in a case
 Very cynical
 Judge would have very wide range of decision, it would be
binding anyway. Judges have the ability to shape the law
through judicial decision making how they want y
o The idealist
 If look hard enough, the law will reveal the right thing to do
 Natural law theories. If look hard enough, the law will reveal
the right thing to do
o We know what is the right thing to do before
beginning the investigate into the law
o Indeterminate judge
 Law can often give us no clear guidance no matter how hard we
look
 Floats somewhere between them all.
 Type of judge that will try to be flexbile and take everything
into account.

Jurisprudence Lecture 2 18th September

Law as a system of rules

 Introduction to legal positivism
o Legal positivism is a theory of the law
 Law as a legal order places this theory in contrast with other
theories on the law
 Law as a system of rules
o A system, not just a set
o Of rules: not necessarily of rules and principles
 Rules more concrete and generally enacted/adjudicated
 Principles are more general in scope and not necessarily
enacted/adjudicated

, o Elements of legal order
 Rule making through rule following leads to institutional
competence
 Rules that define the entire thing
 To understand law as a system need to see that rules are created
by following other rules but there may still be other ways of making
rules
o These apply to all legal theories including positivists and non-positivist
ones
 Introduction to legal positivism as a theory of law
o Theory
 Philosophical doctrine that is developed and put forward by those
that are not legal officials
 Does not have validity in itself.
 Helps us to understand how legal systems work
 A theory about legality
 The properties of the things that can be considered legal
 What makes some rules legal? Some principles legal?
 What makes an authority a legal authority
o Special focus on the origin of law, legal norms and legal authority
 Very important the source of the law, different definitions as to
what qualifies
 What makes law binding?
 Different theories place different emphasis on the various aspects
of law
 Doesn’t pay a lot of emphasis on legal practice
o Certain conception of law as institutional normative order
 Humanely recognised and formalised aspects of law
 Major tenets of legal positivism
o Law is a system of norms stemming from a determinate human source
(not external source, god, reason or moral values)
 Very important in positivism
 Need to identify a human act to see what counts as valid law
o Sources thesis: validity and content of law can be determined without any
recourse to moral argument
 Go back to legislative rules and past case without any appeal to
moral values that the law might serve, eg justice etc
o Separability thesis
 Laws do not necessarily need to satisfy the demands of morality
 A law is a law even if it is unjust
 When evaluate law as law it is irrelevant to look at the
morality
 Kelsen’s version of legal positivism
o Kelsen
 Austrian living in Vienna between the World Wars
 Also experienced Nazi regime and the crude totalitarianism
which threatened individual rights etc.
 His theory is in response to this
o Kelsen’s vision
 An objective theory of law (scientific method- empiricism)