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Summary Jurisprudence Part A KCL full notes
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Jurisprudence Part A full notes
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Jurisprudence Revision notesTABLE OF CONTENTS
Anarchy or Obligation?
- Can authority and autonomy be reconciled
- Is there an obligation to obey the law? – Wolff – NO; Raz – NO but justified
normativity
Law and Fact
- Defining what law is
- Austin – backed up by sanctions
- Hart – improve from Austin
- Raz – Hart reduces the law to social normality, whereas justified normality
is correct
Law and Goodness
- Hart – Rule of recognition
- Finnis – common goods, natural law
Law and Morality
- Dworkin – Issue with Hart’s theory where judges have discretion
The Pure theory of Law
- Kelsen’s Pure Theory of Law
- Raz – Criticism of Kelsen’s theory
Equality: Egalitarianism and Luck
- Dworkin – Envy free Equality of Resources
- Anderson – equality of relations
Autonomy
- Raz – (adequate range of options; Autonomy moral pluralism)
- Oshana – Rejects internalist theories of Autonomy (Dworkin, Kant) in
favour of externalism (added element of social relational properties)
Justice
- Dworkin
- Nozick – Just voluntary transfers
- Cohen – Argues against Nozick
Self-Rule
, Jurisprudence Revision notes
The Nature and Scope of Jurisprudence
- Philosophy or legal theory
- Uses an evaluative methodology – seeks to appraise and consider by weighing up
various understandings of law
- 4 broad objectives:
1. to expose the historical, moral and cultural foundations of a particular legal
concept or principle
2. to compare and contrast law with other disciplines (politics, social science,
economics, literature)
3. to discover the answer to big questions – purpose of law, modes of adjudication,
legitimate authority
4. to categorise and critically analyse the entire corpus juris (the purpose of most
juris textbooks)
Normative vs Analytical Jurisprudence
- Normative – starting point is the already established concept of law.
Understanding what the law is aims to understand its moral basis. What the law
ought to be. – what is morally right/ just – the criteria by which the law ought to be
evaluated (prescriptive)
- Analytical- the study of the nature of law at its most general and abstract level
(John Austin). Concerned with the formal analysis of concepts from a neutral
viewpoint. What is the law? What is the relationship between law and morality? – at
Legal Positivism Natural Law Legal Realism Critical Legal
studies
Claim there is no Deals with what Only real world
connection are valid legal legal practices Law is political.
between law and rules on the of the judiciary Result from the
morality. Rules basis that influence the policy goals of
enacted by sources of law development of society’s elite
governments or include a moral the law. Judges and comprise a
law courts are the test of validity. determine the set of prejudices
only legitimate content of legal with which to
source of legal Finnis, Hobbes, rights according legitimise
authority. Kant, Aquinas to public policy/ injustice
social interests,
Modern legal rather than by Sub groups:
positivists: Raz – compliance with feminist legal
there is a link abstract legal theory, queer
between law and rules. theory, race
morality but it is theory,
not necessary to postmodernism
resort to moral
arguments to
discover the law.
,Jurisprudence Revision notes
ANARCHY OR OBLIGATION?
Clarifying the debate
- We can have good reasons to act in accordance with the law
- The question is whether we have a reason to obey the law simply because it is the
law (content independent obligation to obey the law)
- Philosophical anarchism vs political anarchism
- We never have this obligation? - there is no such state that has an obligation to
follow the law (Wolff) = philosophical anarchism
- It might be a good think people think they have an obligation to follow the law but
they don’t
- Must be a good reason to establish the state if we have no obligation to obey it
- Approach the question from the other way – can we have legitimate states? - where
the state has a right to be obeyed simply because it made those commands moral
obligation to obey the commands
- No obligation to follow the law – in all states (theoretical, democratic, dictatorships)
An obligation need not be absolute
- The fact the law commands us to do something might always give rise to a moral
obligation to do that thing – but this does not mean we must always follow the law,
there could be more powerful moral reasons to not follow it
- Analogy between the obligation to obey the law and a promise
- Moral obligation to follow the law – although this may be overridden by other things
- Cannot refute there is an obligation to follow the law by using an example where we
should not follow it/ break the promise
ANARCHY
WOLFF - ‘IN DEFENSE OF ANARCHISM’ 1970
The classic statement of the philosophical anarchist position (the view that there are no
political obligations)
autonomy and authority are two opposed concepts, which cannot be reconciled
We cannot give up autonomy because it is inherently linked to our human dignity,
therefore we must embrace anarchy
o You are a free and rational person who has a moral obligation to be autonomous – to
make your own decisions on the basis of the reasons you see for and against an
action
o When you treat the law as a legitimate authority, you are not acting autonomously
and therefore violating moral obligation (you are taking the law as a reason for doing
something)
o The obligation to act autonomously conflicts with the legitimacy of the state
o So you can never have a moral obligation to follow the law
Authority
o Authority = the right to command + the right to be obeyed
, Jurisprudence Revision notes
o Power is instead the ability to compel. The state has a right to tax people even if they
do not want to be taxed or think they can get away with it. ‘Cheating’ the
government is recognising its authority, you wouldn’t say ‘cheating’ a thief.
o Supreme authority = ultimate authority over all matters occurring in its venue
o John Locke - the supreme authority of the just state extends only to those matters
which it is proper for a state to control (the authority is not absolute)
o authority resides in persons; they possess it -- if indeed they do at all -- by virtue of
who they are and not by virtue of what they command. My duty to obey is a duty
owed to them, not to the moral law or to the beneficiaries of the actions I may be
commanded to perform.
o “Obedience is not a matter of doing what someone tells you to do. It is a matter of
doing what he tells you to do because he tells you to do it”
o “Legitimate, or de jure, authority thus concerns the grounds and sources of moral
obligation”
o De facto (a state whose subjects believe it to be legitimate) vs de jure authority
Autonomy
o The fundamental assumption of moral philosophy is that men are responsible for
their actions Kant- men are metaphysically free (choose how they act)
o Taking responsibility for ones actions involves attempting to determine what one
ought to do, and that, as philosophers since Aristotle have recognized, lays upon one
the additional burdens of gaining knowledge, reflecting on motives, predicting
outcomes, criticizing principles, and so forth.
o Only because man has the capacity to reason about his choices can he be said to
stand under a continuing obligation to take responsibility for them (reason to
exclude children and madmen)
o The responsible man is not capricious or anarchic, for he does acknowledge himself
bound by moral constraints. But he insists that he alone is the judge of those
constraints (may have advice from others)
o The autonomous man is not subject to the will of another – he may do what another
tells him but not because he has been told to do it
o A man can forfeit autonomy – “a man can decide to obey the commands of another
without making any attempt to determine for himself whether what is commanded
is good or wise”- not to be confused with giving up responsibility for his actions
o “A man can give up his independence of judgment with regard to a single question,
or in respect of a single type of question. For example, when I place myself in the
hands of my doctor, I commit myself to whatever course of treatment he prescribes,
but only in regard to my health”
o I may decide that I ought to do what that person is commanding me to do, and it
may even be that his issuing the command is the factor in the situation which makes
it desirable for me to do so – e.g disobeying a captain in a sinking ship would cause
more harm/chaos so you chose to follow his command
o Plato's assertion that men should submit to the authority of those with superior
knowledge, wisdom, or insight
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