History of Legal
Theory
Tutorial Questions
& Answers
2017-2018
consisting of the books of
Kelly: A Short History of Western Legal
Theory / Hunt: Inventing Human
Rights
with corrections provided in tutorials
by
R.M. Weaver
,History of Legal Theory Tutorial Questions and Uncorrected
Answers
Tutorial 1A Tuesday 5 September
Tutorial 1A – The Greeks (Tuesday 5 September)
No Question Answer
.
1 How does Aristotle Because humans are organized in
relate the city-state independent states, that are not unified,
a and its laws to human Aristotle argues that laws in those city
nature? states made by humans differ per city and
are contingent. However, there are also
laws according to him that are valid for all
humans due to their nature.
1 In what respects did The Sophists’ thought that there was no
the Sophists’ existence of any natural law, and that all
b conceptions of law laws were contingent and equally powerful
and human nature (or so to say, powerless) as human
differ from Aristotle’s? populations differed throughout the world
and the times.
2 Give three examples 1. Family relationships were seen as
of natural rights and naturally carrying the duty of children to
a duties that were honourably bury their parents.
recognized by Greek 2. The right to self-defence.
writers. 3. The right to punish for any crimes in
terms of symmetrical retribution (eye-
to-eye).
2 What role does the Antigone overrules the command of the
conception of natural king of her city-state, who argues that she
b law play in should not bury her brother. She does so
Sophocles’s Antigone? instead, arguing that the burial of a dead
man is something one is required to do by
natural law.
3 Characterize in your The rule of law is a noble distinction of
own words the Greek Greek city-states amongst each other. It
a conception of the rule indicates that the law is sovereign, as is
of law. put: the law rules, not a man. Any private
citizen who finds an official trying to
override the law, may charge this official.
3 How does the Greek Nowadays, the government as an
conception of the rule apparatus may be prosecuted for not
b of law differ from our following or obeying the rule of law, but not
modern conception of necessarily a single man.
the rule of law?
4 Explain Aristotle’s 1. Distributive justice: a form of justice in
distinction between which the sum of the first and third
a “distributive” and terms, will bear the same ratio to the
“corrective justice.” sum of the second and fourth as one
term of either pair bears to the other
term. / Legislative justice / free of
,History of Legal Theory Tutorial Questions and Uncorrected
Answers
Tutorial 1A Tuesday 5 September
invidious discrimination
2. Corrective justice: judicial justice,
treating parties as equal, looking at the
damage that has been suffered and
equalise the damage
4 How does Aristotle’s Equity is just in itself, but not by law: as
conception of “equity” law deals with general cases, and cases of
b relate to law and equity are so specific that they cannot be
justice? named under ‘law’.
5 What purposes of 1. (Greek): Corrective. Forcing a
punishments are wrongdoer to make up for his mistakes.
a identified by Greek 2. (Greek): Deterrent. Discouraging the
(and Roman) authors? society in general to commit crimes.
3. (Roman): Timoria. Dishonour the
perpetrator, as much as the victim has
been dishonoured.
5 To what extent did “That what is unintentional, is forgiveable.”
Greek jurists and Any act that resembles greater evil and
b philosophers believe more intention should receive a more
that the wrongdoer’s severe punishment. Demarcations had
intent was relevant to already been made between involuntary
guilt and criminal killing, ‘killing without intention’
liability? (manslaughter) and ‘killing in passion’
(homicide).
6 How does Aristotle Aristotle argues that from birth on, some
relate the legal are designated to be slaves, and others are
a institution of slavery destined to be rulers.
to natural law?
6 How does he solve the He argues that only natural slavery is to be
tension between justified, but that man cannot go their own
b slavery and human way and capture any other human to
nature? enslave them, as would happen in wars.
The latter practice is namely conventional,
and despite some people being born to
rule and others to obey, people do not
have the power to make others slaves.
, History of Legal Theory Tutorial Questions and Uncorrected
Answers
Tutorial 1B Thursday 7 September
Tutorial 1B – The Romans (Thursday 7 September)
No Question Answer
.
1 Describe the legislative The Senate had the power to create
process of the republic legislation. The people enacted the laws
a (the procedure through in different assemblies that could only
which laws were made) accept or reject a bill. The executive
and explain the roles of power lay with elected magistrates that
the various assemblies were different for either the higher class
and magistracies in this and lower class (plebeians) of the
legislative process. populations. Overseas provinces were
administered by governors.
1 Describe the judicial Judges were selected from case-to-case
process (the and unsalaried. The praetor would before
b administration of justice formulate a question of law and
in individual cases) and determine which rule was allegedly
distinguish between the violated; afterwards, the judge would
roles of the praetor and consider questions of fact.
the judge.
2 What were the main Jurists drew up formulas for legal
legal roles and activities transactions; advised magistrates,
a of the jurists? litigants and judges; taught law to a new
generation; published commentaries and
introductory textbooks.
2 How can their work be Not theoretical, but merely practical;
characterized? built and founded on a case-to-case
b basis. No (unnecessary) rhetorical
enrichment.
3 Describe the dialectical The dialectical method is the
method and explain organization of material in an orderly
a how it contributed to system by a process of division and sub-
the discovery of general division in genera and species. The
legal principles. Romans had organized their laws in such
a manner as well.
3 Give an example of a The Romans often referred to mythology
principles of legal for interpreting rules, and so had the
b interpretation which the Greeks done as well.
Roman jurists adopted
from Greek theory.
4 Describe the tasks of The praetor formulated a command to
the praetor and explain the judge and functioned as a gate of
a his responsibility for access to the judicial hearing and
granting procedural decision.
remedies.
