The subject matter of Jurisprudence:
• Conceptual and normative questions, not empirical or doctrinal questions
Doctrinal questions:
• These concern what the law is on some matter
Empirical questions:
• These concern facts about the world
Conceptual questions:
• Eg. What is beauty? Knowledge? Justice? Freedom?
• Are the social sciences really sciences?
• This is a second-order question, because it does not arise within the social sciences
but is about them
• What are the criteria which lead us to describe a certain activity as a scientific
activity and do these criteria apply to the activities of social scientists?
• One of the aims of philosophy is to answer conceptual questions. It aims to tell us
what lies behind the way we use words like ‘beauty’, ‘knowledge’, ‘science’.
• Jurisprudence is a branch of philosophy and one of its aims is to answer conceptual
questions about law. Eg: o What makes a particular rule a legal rule, as opposed to,
say, a rule of etiquette?
o Does law have a function?
o Do laws have to meet certain minimum moral standards in order to be called
‘laws’?
o Are we under a moral obligation to obey the law just because it is the law? o
Is legal reasoning objective and impartial?
Normative questions:
• These questions concern what is right and wrong, good and bad, just and unjust
Normative jurisprudence investigates the values that law should serve. Eg:
o What are the pros and cons of respecting rights? o For what reasons can
we legitimately be punished? o Are any inequalities of wealth justifiable? o
Should the law be blind to differences such as race, gender and sexuality or
sensitive to them?
• Is there a gap between facts and values? Are value-judgements subjective or
objective?
Review of the theoretical framework:
1. General Jurisprudence and the Search for the Nature of Law
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, • 2. Methodologies of General Jurisprudence
• 2.1. Conceptual analysis
• 2.2. Empirical analysis
• 2.3. Normative analysis
• 3. The difference between conceptual, empirical and normative problems and the
methodologies for solving them
Riggs v Palmer:
• 1. Details of the Judgment o a. Parties: Philo Riggs, as Guardian ad litem et al.,
Appellants, v Elmer E. Palmer et al., Respondents. o b. Jurisdiction: Court of Appeals
of New York o c. Date: Submitted June 21, 1889; Decided October 8, 1889.
• 2. Facts o a. On 13 August 1880, Francis B. Palmer made his last will and testament.
o b. He gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston,
and the remainder of his estate to his grandson, Elmer E. Palmer.
o c. Elmer knew of the provisions made in his favor in the will and that his
grandfather intended to revoke them. o d. For preventing this to happen
and for obtaining the speedy enjoyment and immediate possession of his
property, he willfully murdered Francis by poisoning him.
o e. Elmer claimed the property.
o f. Elmer argued that the testator is dead; that his will was made in due form,
and that, therefore, it must have effect according to the law.
• 3. Legal Issue o Whether Elmer Palmer can have the property. o Issue generalized:
Whether an inheritor, who has murdered the testator can receive the inheritance.
• 4. Justice Earl's opinion o Statutes regulating the making, proof and effect of wills,
and the devolution of property, if literally construed, give this property to the
murderer. o Purpose of the statutes: to enable testators to dispose of their estates,
and to carry into effect their final wishes legally expressed.
o “It was the intention of the law-makers that the donees in a will should have
the property given to them”. o d. “But it never could have been their
intention that a donee who murdered the testator to make the will
operative should have any benefit under it”.
o e. Matters of interpretation: Rational interpretation and argument ad
absurdum. o f. The case ought to be decided by a “fundamental maxim of
the common law”.
o g. Fundamental maxims of the common law:
- “…all laws as well as all contracts may be controlled in their operation
and effect by general, fundamental maxims of the common law. No
one shall be permitted to profit by his own fraud, or to take
advantage of his own wrong, or to found any claim upon his own
iniquity, or to acquire property by his own crime. These maxims are
dictated by public policy, have their foundation in universal law
administered in all civilized countries, and have nowhere been
superseded by statutes”.
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, o “These maxims, without any statute giving them force or operation,
frequently control the effect and nullify the language of wills.”
o “Under the civil law evolved from the general principles of natural law and
justice by many generations of jurisconsults, philosophers and statesmen,
one cannot take property by inheritance or will from an ancestor or
benefactor whom he has murdered.”
• 5. Holding o Elmer Palmer cannot take the property as heir
• 6. Justice Gray’s dissenting opinion o “…the matter does not lie within the domain
of conscience. We are bound by the rigid rules of law, which have been established
by the legislature, and within the limits of which the determination of this question is
confined”.
o A different construction of the legal issue: “The question we are dealing with
is, whether a testamentary disposition can be altered, or a will revoked, after
the testator's death, through an appeal to the courts”. o Claim: there is “no
room for the exercise of an equitable jurisdiction by courts over such
matters”.
o d. In the absence of a legislation, such as the one of the civil law, “the courts
are not empowered to institute such a system of remedial justice”.
o e. The statutes prescribed various ways in which a will may be altered or
revoked. They add that "No will in writing, except in the cases hereinafter
mentioned, nor any part thereof, shall be revoked or altered otherwise”.
Alteration by a court is not included in the list.
Empirical problems:
• 1. Identify an empirical problem in Justice Earl’s opinion
• 2. How would this problem be incorrectly solved by means of a conceptual answer?
3. How would this problem be correctly solved by means of an empirical answer?
Conceptual problems:
• 1. Identify a conceptual problem in Justice Earl’s opinion
• 2. How would this problem be incorrectly solved by means of a normative answer?
• 3. How would this problem be correctly solved by means of an conceptual answer?
Normative problems:
• 1. Identify an empirical problem in Justice Gray’s opinion
• 2. How would this problem be incorrectly solved by means of a conceptual answer?
3. How would this problem be correctly solved by means of a normative answer?
The relevance of Riggs to the Jurisprudential Enquiry:
What was the dispute about?
• What was the law for the case? Yes, according to the dissenting opinion and
according to a conceptual view.
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, • On whether judges should follow the law or adjust it in the interests of justice? Yes,
according to the majority opinion and also according to a normative perspective.
How would a conceptual approach to jurisprudence solve the case?:
• Identifying the rules for the case
• Adjudicating the case under those rules
• In particular, it is important the rule: "No will in writing, except in the cases
hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise”…
and the precedents that applied it.
How would a normative approach to jurisprudence solve the case?
• Identifying ethical principles.
• Adjudicating the case under those principle.
• In particular, it is relevant the principle: "one cannot benefit from one's own
wrongdoing"
Does the answer to the question what is law have an impact for the answer to the
question what is law?
• Though some authors deny this, here it is clear that yes.
• As Shapiro claims: “the answer to what law is in any particular case depends crucially
on the answer to what law is in general”.
• The question in Riggs is what is the law? The statute or the principle: “one cannot
benefit from one’s own wrongdoing”.
Readings – Ch1
• Pg1: jurisprudence is generally conceived as the attempt to understand the social institution of law
from the perspective of philosophy
• Pg2: another way in which jurisprudence contributed to a deeper understanding of law is by
providing the tools to determine what laws are desirable, and to engage in rational criticism of
existing laws.
• Pg7: jurisprudence provides a broader perspective on the law than that typically found in the legal
profession. For example, in asking questions about the nature of law and its purpose, it gives us a
general understanding of the relation of law to the other institutions that make up our society and
its significance in relation to these institutions.
• Pg8: an understanding of critical and extra-disciplinary perspectives on the law promotes awareness
of the historical, social and economic context in which law operates, and fosters the critical cast of
mind that typifies the educated lawyer.
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