Class notes
Legal reasoning- Lecture notes Jurisprudence
- Course
- Institution
Lecture notes, and notes of readings that were studied throughout this course. Taken in 2023. Prof Leo Boonzaier
[Show more]
Seller
Follow
tshegokhensani19
Reviews received
Content preview
JURIS PART 2: LEO’S SECTIONCONTENTS
Fredrick Shauer ................................................................................................................................................................. 2
HLA Hart, ‘Positivism and the Separation of Law and Morals’ ........................................................................................... 7
L Fuller, ‘Positivism and Fidelity to Law—A Reply to Professor Hart’ ................................................................................ 9
J Raz ‘Law and Value in Adjudication’ .............................................................................................................................. 11
Pierre Schlag, ‘Rules and Standards’ ............................................................................................................................... 15
Cass Sunstein, ‘Problems with Rules’ .............................................................................................................................. 18
, Fredrick Shauer
Playing by the Rules
What is a rule?
Descriptive vs prescriptive rules and statements are our first distinction
o Descriptive rules are rules about what is in fact the case. They describe how things are. Descriptive rules also
describe how people behave.
‘The planets orbit the sun.’
‘Little Johnny raids the liquor cabinet when his parents go away for the weekend.’
o Prescriptive rules on the other hand tell us what ought to be.
‘Do not kill.’
‘Little Johnny, do not raid the liquor cabinet!’
o Descriptive statements = statements about the way things are, and prescriptive or normative statements =
statements about how they ought to be.
Statements about how they ought to be usually are claims about what people should do.
They are both are generalizations, as both descriptive and prescriptive rules make claims about general classes
of things.
Rules as generalizations:
Descriptive rules being generalizations –
o There are different dimensions of generality. The rule can refer to a broader or less broad class of subjects,
and it can refer to a larger or smaller period of time. It must have some degree of generality to qualify as
a rule. namely-
Generality as to subjects (the thing or persons to which the generalization refers) and,
Generality as to time. This is the length of time or range of occasions to which the generalization
refers. It's also apparent that generality is a matter of degree.
o Every generalization by its nature contains a degree of inaccuracy. Or at least potential inaccuracy. They
reflect reality only imperfectly. They do not capture the full truth of the matter.
o All descriptive rules are generalizations, but they contain a degree of inaccuracy. They try to compress all
of our complex reality into a general rule and cannot help doing so imperfectly. They obscure some
exceptional cases where the generalization does not apply.
Prescriptive rules being generalizations-
o Prescriptive rules are necessarily inaccurate to a degree.
o They are somewhat more subtle and complicated than descriptive rules.
The structure of rules consists of a rule’s factual predicate and its consequent.
Many writers claim that all rules can be resolved into these two elements. They can be represented as a factual
predicate, and then as a consequent.
o The factual predicate is the set of circumstances in which the rule applies. It determines when the rule
applies. Sometimes referred to by Leo as the “if clause”.
The factual predicate says “If this and that is true, then the rule applies.” …Again, the consequent,
as the name suggests, tells you what happens when the rule does apply.
A normative consequence for prescriptive rules.
So doesn't tell you what actually obtains in the real world when the factual predicate with truth.
It tells you what should happen, what ought to happen. **This is useful, but we should immediately note
that it's just a framework.
There are many different types of consequent and complications which arise.
, 1. Powers:
These are rules where the consequent is that some other legal concept is brought into being, or rules to
understand what it means or what is entailed by the existence of that concept to return to that.
‘A will is valid only if it is signed by two witnesses.’
‘A contract for the sale of land is valid only if it is reduced to writing.’
2. Permissions:
’If a person has an LLB degree from a South African university, then they may practice law.’
3. Prohibitions and sanctions:
These Rules which do not merely empower or permit the subject of the rule to do this or that. Rather, they
say that something must not be done
For instance- first, there's the legal prohibition on murder. The consequence of that is that the
person is in breach of a legal duty.
The second, there is a separate rule ecosystem according to which- if a person has breached a legal
duty, a court is permitted and perhaps even has its own duty to impose a sanction upon it.
o So the first rule is directed towards us to the lower subjects. It says we ought not to murder and the
second rule is directed not to us, but to legal officials. It says to them that if a person has committed
murder and thus breached a legal prohibition, the official or to sanction workers.
o Hart would say to keep those two rules separate
Theorist Factual predicate Consequent
Austin X intentionally kills another person A sanction must be imposed on X.
without justification
Hart (1a) X intentionally kills another (1b) X is in breach of a legal
person without justification prohibition.
(2a) X is in breach of a legal (2b) A sanction must be imposed
prohibition. on X.
When we talk about legal rules, we usually have implicitly in our minds and understanding that each rule forms
part of a system. These are not really isolated rules sitting there by themselves. Arguably, that's a necessary truth
about legal rules. Legal rules exist within legal systems.
One of Hart’s big contributions was to explain the concept of law by asking first what does it mean to have a legal
system.
An individual exists in virtue of being valid according to a legal system. So, there first needs to be an understanding
about what the legal system is. Thereafter start to understand individual law.
That was a big change as that hadn't been the order of explanation before Hart.
o Austin did not think in that order. He thought you could understand what makes a lower law by looking
at it in isolation by noticing certain properties of it, which lead to unproductive lines of thought - such
as thinking that something is a law if it takes the form of a commandment and is backed by a sanction.
Rules, too, exist within systems of rules. So, it can be artificial to try and take a blinkered view of each individual
rule. The truth is that their content has to be understood in light of other rules- for example:
Rules within systems
— Operative rule: ‘It is an offence to publish hate speech.’
— Statutory definition: ‘“Hate speech” means any utterance that propagates hatred on the basis of a listed ground’
— Interpretive rule: ‘Any criminal prohibition may be breached only intentionally or negligently.’
— Defence rule: ‘It is a defence to any criminal charge that the defendant acted under duress.’
— Sentence
So to rule: ‘The offence
understand the of hateeffect
legal speechofisthat
punishable by a rule,
operative maximum of 2 years’
you need imprisonment.’
to know all those other rules.
— Sentencing guideline: ‘In the absence of special circumstances, the sentence for the offence of hate speech is between 3 and 6
months’ imprisonment.’
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller tshegokhensani19. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for CA$10.12. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
77254 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now