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Summary Jurisprudence & Legal Theory Revision Notes
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- Kings College London (KCL)
Revision notes for Jurisprudence and Legal Theory.
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JURISPRUDENCE REVISIONSyllabus
Week 1 Anarchy or Obligation?
Week 2 Law and Fact
Week 3 Law and Goodness
Week 4 Law and Morality
Week 5 Law and Normativity
Week 7 Equality: Egalitarianism and Luck
Week 8 Autonomy
Week 9 Justice
Week 10 Self-Rule
Jurisprudence Introduction
Jurisprudence: how to compose arguments when the law has run out, when there is no
authority – i.e. prorogation of parliament is unlawful. No positive law or statute to guide
you. Have to go beyond this + look at the end game of the argument.
Descriptive legal theory seeks to explain what the law is, and why, and its consequences.
Normative legal theories, on the other hand, are concerned with what the law ought to be.
Put differently, descriptive legal theories are about facts; normative legal theories are about
values. Critical legal theory questions the very foundation of jurisprudence.
Jurisprudence concerns the theoretical analysis of law at the highest level of abstraction (eg,
questions about the nature of a right or a duty, judicial reasoning, etc) and are frequently
implied within substantive legal disciplines.
The trivium origin of the word “trivial.” Grammar (how to get the terms of the study and
the definitions), logic (how to relate those terms without fallacy) and rhetoric (how to
convey the terms and how to communicate them) – what everyone needed to learn.
Jurisprudence, in a way, tries to come to terms with the term law – how to link concepts
with law and how to communicate those arguments.
Terminology and Distinctions:
, Conceptual v empirical truth distinction is about the quality of truth. Example:
circles are round. Being round is in the concept of a circle, therefore, it is
conceptually true. Empirical truth refers to the quality that is not contained in the
subject. Example: this circle is red. It does not lie in the concept of a circle to be
red. You need to empirically find that it is red. Conceptual truths are necessarily
true but uninformative – everyone already knows circles are round
Necessary v sufficient conditions everything together would be sufficient, but
one thing alone would not be sufficient for example to make a good coffee. It is
necessary to have good coffee beans, but you also need a good machine, clean
water etc. Therefore, good quality beans are not sufficient. Example 2: stabbing a
man is a sufficient condition to kill him but is not necessary – can also kill in other
way. There are many conditions that are necessary but not sufficient, and there
are many conditions that are sufficient but not necessary depending on the
context.
Validity v soundness of inference inference refers to a relation of three
statements where the premises can’t be true without the conclusion also being
true. Example: all humans are mortal. Socrates is a human, therefore is mortal.
Inferences are truth pumps – the truth is pushed from the premises to the
conclusion. An inference is valid when this truth pump functions. Example: All
Austrians are geniuses. I am an Austrian, so I am a genius – valid inference but the
premise is not true therefore it is not a sound inference. A sound inference is
where the inference is valid, and the premise is true. The inference in itself is
invalid therefore cannot be sound.
Normative v factual statements normative statement tells you how the
something ought to be and a factual statement tells you how something actually
is. Factual statements express beliefs and normative statements express desires.
One tries to match the world whereas the other one tries to match the world to
the statement.
Morality v prudence a prudential statement is a statement that relates to a
normative statement that relates to given end. Conditional upon some notion of
wellbeing (ought to do something). Moral statements are statements where ends
do not matter. Example: if you want to do well in the exam, you should real HLA
Hart – prudential ought. You ought to study the book only given that you want to
well in the exam. No sense beyond that – the ought relates to the given end.
Example 2: killing your grandmother to inherit her money – goes beyond morality.
Morality gives you duties independently of what you believe and what you want
whereas prudence gives you obligations depending on your beliefs and desires.
Does the law give you moral reasons? Or only hypothetical reasons? Some people
believe that all imperatives are prudential and there is no distinction between the
two. We cannot give up our desires as humans therefore morality is undermined
by prudence.
, Differentia specifica v genus proximum genus proximum: closest kind of
something. Differentia specifica: distinguish the closest thing to something to rule
out what it could be
Anarchy or Obligation?
What is authority?
Right to command: someone has authority if they have the right to command
Right to be obeyed: right to command gives you a right to be obeyed
Obeying: Duty that people do something simply because they are told to do so.
What is autonomy?
Self-legislation (Kant)
Being and considering oneself as the author of one’s life
Taking ultimate responsibility for one’s actions
Duty that people never to do something simply because they are told to do so.
Authority and Autonomy
They conflict each other – If you think that autonomy is the only source of
justification of any action, they cannot exist together, they are incoherent
If you think that autonomy is the ultimate source of legitimacy, then authority can
never be legitimate. Legitimate authority is an oxymoron – like a square circle
philosophical anarchism
Solution?
Accept the soundness of logical argument. 1) Accept the tragic conflict of
duties 2) we give up autonomy (partially) 3) give up authority (partially) –
there cannot be a duty to obey someone
Attack the soundness of the argument – autonomy is not the only source of
legitimacy. Examples:
Moral autonomy is not our primary or fundamental obligation –
legitimacy has different sources other than autonomy.
Autonomy as a capacity needs to be developed before it can be
exercised and various kinds of authority make this development
possible. Authority is a necessary condition (not sufficient) to develop
your capacity of autonomy eg need to be educated. Authority and
autonomy cannot be incompatible
Wolff: his argument proves too much. Promising and contracts also
need to be thrown out because they trump your autonomy. According
to Wolff autonomy will trump whatever promise you made before.
Classical Ideas about Authority
Voluntarist theories
Depends our will, involves the will of autonomy of self.
, Consent – basis of authority
Problem: If you consent to someone the Q is are you still obeying? If
obedience is dependent on consent is this still authority? Authority should
exist even without consent.
Problem: actuality of consent. Tend not to sign a contract but consent via
spoken word or actions
Not about actual consent but implicit consent by - rational will? True will?
With parents, is there consent if you live in their house etc? blurred line
Expressive obligations
Obligations of gratitude
Duty to obey the authority because you owe gratitude to society bc society
does a lot for you
Fairness
Just a question of fairness that you obey authority because would be unfair
to those in society for you to freeride
Non-voluntarist theories
Associative duty
Removed from consent
Lots of relationships are not based on consent – happen to occur without
a contract of consent
These relationships hold different duties and are not confined by a
relationship based on consent ie family relationships.
Based on interaction – not duty eg sexual relationships are based mainly
on interactions even though consent is a defining element
Natural duty
Certain roles you play involuntarily – eg being a son/daughter: you did
not consent, but it comes with duties
Don’t need to agree but institution/association (living in democracy)
comes with certain roles in associations with certain rights and duties
The role of the citizen comes with duties
Does the directive have any moral weight?
Instrumental justification (Raz)
Authority is something that does people a service – can allow us to
achieve our aims
A directive has an authority only in so far as it does a service so far as to
who it is directed at
Directive has authority if it does a better job at making you comply with
the good reasons that apply to you that you will do.
Objective reasons that apply to you (objective reasons/good reasons to
do things i.e. not kill your grandma, look after your health etc.)
May not be very good at balancing out the reasons, which is why i.e. a
speed limit may have good authority
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