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LL109 Introduction to Legal Systems Lecture Notes
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2016/17 Lecture notes for the LL109 course. Focus on stare decisis, statutory interpretation, persuasive authority etc.
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Introduction to Legal SystemsWeek 1
Rule-centred approaches to law
• In the West we are accustomed to thinking about law as a rule-bound system that is
inextricably linked with the state:
• Law is created by the state, enforced by agents of the state and backed up by the
threat of violence.
• A contingent assumption is that the state is necessary for the maintenance of order
in society.
• Hobbes’ Leviathan is an example of this way of thinking.
John Austin
• A classification of different types of rules that are commonly referred to as ‘laws’.
• There are laws ‘properly so called’ and ‘improperly so called’.
• The object of legal science are positive laws.
• Positive laws are posited (set down) by humans to other humans.
Positive law has several components:
- It is a set of commands issued by a sovereign
- Backed up by the threat of sanctions
- To a people who are in a habit of obedience.
- an example of a rule-centred approach
• Austin’s theory is sometimes referred to as legal positivism.
• Law is separate from other moral rules.
• This is not to say that there cannot be an overlap between the two.
• However, there is a distinction between what the law is and what the law
should be.
Law as Morality
Hart-Fuller Debate
Grudge Informers case
Law as Politics
Looking at the legal system not just at the internal parts but in the context of the
judges/judiciary.
American Legal Realism first emerged in the early 20th century at Yale Law School.
• There is a difference between ‘law in books’ and ‘law in action’.
• This necessitates a focus away from principles or rules to the people who interpret
the law.
John Griffiths
• A review of cases in the UK shows that the vast majority of them are decided in a
conservative manner.
• Conservative decisions cannot be explained with reference to rules (or principles)
alone.
• Instead, if we want to understand why the cases have a conservative outcome, we
need to look at the judges.
• Judges are from a very narrow socio-economic and political background:
- 30 per cent went to Clarendon schools
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