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LAWD20004 JURISPRUDENCE

Unit Coordinator: Professor Patrick Capps UNDERGRADUATE UNIT GUIDE

Law School 2019-2020

Unit Description Jurisprudence aims to enhance the understanding of law by considering the nature of law from general analytical, normative and empirical perspectives. Students will be expected to grapple with complex theoretical positions and should thereby be enabled to exercise critical judgment in their study of law and demonstrate the relationship between particular aspects of law and their theoretical foundations. The unit will cover theories of adjudication, theories of legal systems, the analysis of legal concepts, the moral purpose of law, theories of justice and the sociology of law. Liberal, Marxist, feminist and postmodern critiques of law will be considered. Students will be expected to read theoretical texts closely, summarise arguments succinctly and clearly, and engage in debate, both oral and written, concerning current controversies within jurisprudence. Jurisprudence attempts to answer some of the most important general questions about the nature of law. We will look at a variety of attempts to answer these questions focusing on the Western philosophical tradition. Specifically we will consider answers to the following questions: (i) What is jurisprudence? (ii) What is a legal system? (iii) Does law have any necessary moral purpose? (iv) How should judges decide cases? (v) What are rights? (vi) What is justice? (vii) What is the role of law in modern society? (viii) Whose interests does the law serve? The skills that jurisprudence aims to develop are the ability to master abstract thought, thinking and speaking about law in general categories. It should help you to expose the presuppositions and assumptions of lawyers, and evaluate competing theoretical approaches to law. You should be enabled to place law in the wider context of human afairs.

Teaching Staf This unit is taught by: Unit Co-ordinator Professor Patrick Capps ([email protected]) Teaching Staf Professor Joanne Conaghan ([email protected]) Professor Julian Rivers ([email protected]) Mr Matias Rodriguez Burr ([email protected]) Dr Basil Salman ([email protected]) Dr Jacopo Martire ([email protected]) Mr Omar Madhloom ([email protected]) You are welcome to visit during consultation hours to discuss matters connected to this unit, although making an appointment is advised. Staf consultation hours will be advertised outside their offices and on Blackboard.

Learning and Teaching on this Unit The unit will be taught through 20 lectures and 8 seminars. Details of revision sessions will be provided through the year. The unit as a whole is intended to develop the unit objectives by a series of interlocking approaches to teaching and learning which develop from basic information presented

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in lectures, to critical analysis of various approaches and theories via presentations and discussion in seminars. The seminars are the most important formal part of the jurisprudence unit. Your first seminar will take place in Weeks 3/4. Seminars provide you with an incentive to read in a disciplined and focused way; they enable you to learn from each other and they give you an opportunity to clarify points of uncertainty. The format of the eight two-hour seminars will be discursive and active participation is required. The materials and reading lists are only indicative and students are expected to develop their own research skills. Students are expected, in particular, to study beforehand and discuss in the seminar the relevant required readings indicated in the handout.

Intended Learning Outcomes Jurisprudence examination questions are normally quite general and may cover a number of diferent subjects. The examiners are looking for the following things:      

The ability to understand and summarise theoretical positions The ability to compare and contrast diferent theoretical positions Knowledge of the wider jurisprudential context within which issues are located Knowledge of the problems and criticisms which specific issues have provoked The ability to construct a coherent argument defending a position The ability to write clearly and with authority

Formative Assessments There are three opportunities to do formative work in this unit: 1. There is a mid-sessional examination in January, in which you may write an essay in one hour. Details of this examination will be provided nearer the time. Like all formative assessments, taking the exam is your choice. However, there will be no opportunities for formal written feedback beyond this examination. 2. One of the most basic skills in jurisprudence (and indeed for legal study in general) is to be able to read an article, chapter or other extract and summarise its core argument. You should not see this as simply making running notes on a textbook or lecture. Instead, each piece of jurisprudential writing should be understood as a discrete unit with a point or points to get across, which can then be subjected to critical analysis. Summarising the argument is the first stage of engaging with it. In the examination we are looking for candidates to show that they can get their heads round tricky pieces of jurisprudential writing in this way. Summarising someone else’s argument is not easy, but as with all skills, gets easier with practice. So, as you prepare for each jurisprudence seminar, you should produce short (i.e. about 250 word) summary of each piece set as essential reading for the seminar. The more material you can generate for yourself in this way, the better your grasp of the subject will be. Note that doing this for yourself is the key to success; simply collecting summaries drawn up by others is almost useless. Your tutor will also be inviting seminar participants to read out one of their summaries. To make things a bit easier, you will know which piece you may be asked to summarise in advance, although you won’t necessarily know if you will be called on. We will spend some time comparing summaries, either in small groups or as a whole seminar class, so that you get feedback on your summaries and learn to think critically about 3

how to summarise in the most useful way. 3. In most classes, your tutor will organize a marking exercise, in which the class will be asked to evaluate an essay connected to the seminar which was been written by a student. The aim of these exercises is for you to learn to be able to critically analyse the work of your peers against the assessment criteria, so as to be able to critically apply those criteria to your own work.

Summative Assessment The unit will be assessed by a three-hour unseen examination The examination for this unit will be held in the summer exam period (May/June). Further information can be found in your Programme Handbook. Past exam papers can be viewed on Blackboard – ‘Law School – Student Pages > Exams’. You will be required to answer four questions from at least eight. Previous years’ papers can be found on Blackboard. Please note that exam scripts are marked as a whole and not simply as an aggregate of 4 separate answers. This means that you do not obtain any credit for repeating information in answers to diferent questions but you can cross-refer between your answers. What this means precisely will be discussed through the year. Books Jurisprudence does not have primary legal materials such as cases and statutes, but roughly speaking, there is still a distinction between primary authors (writers who are actually doing jurisprudence) and secondary authors (textbook writers summarising and explaining what the primary authors are doing). Some students try to get away with just reading a textbook, but that is rather like studying contract law without reading any cases. For that reason, the seminar sheets have both basic reading (textbooks) and key texts (jurisprudential writing). To make life simple for everyone, most of these key texts are drawn from Lloyd & Freeman’s Introduction to Jurisprudence. You will be able to access the readings for the seminars through the electronic Reading List tab on the Jurisprudence Blackboard site or as an ebook. If you wish to take jurisprudence seriously, you will not rest content with the textbooks and key seminar texts. For further reading, you should be guided by the lists at the end of seminar sheets, chapters in textbooks, other excerpts in Lloyd & Freeman and your lecture handouts. Some tips on reading jurisprudence Jurisprudence is more discursive than other legal subjects; it therefore requires slightly diferent reading skills. 1. Don’t be afraid of skim-reading and reading widely. Don’t try to take notes to start with. Just read the piece through as quickly as possible, and ask yourself at the end what the author’s argument was. Don’t move to stage 2 until you can summarize the argument in your head.

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2. Take notes on a second reading only. Note the key stages in the argument and any useful quotations. Don’t forget to reference your notes properly so that you can recover the original material if necessary (see notes on ‘summarising’ above). 3. If the text refers to, or relies on, other texts which look interesting, make a note of these references as well: you are trying to construct a ‘map’ of the literature. 4. Whenever you read something, ask yourself whether you agree or not, and why. Make a note of your response (initial it, so that it doesn’t get confused with the original author!). 5. Try to read originals, or at least bits of originals, wherever possible. Don’t just read (for example) what Hart said, read Hart. 6. Go over what you have read recently in your mind during spare times of day. There are now many possible textbooks to use, but unfortunately no one text is completely tailored to our unit. Below, we have summarised what each of the texts covers, with some assessment of their value:

Analysis of Jurisprudence Textbooks 2019/20 Core text: Lloyd & Freeman, Introduction to Jurisprudence (9th edn., Sweet & Maxwell, 2014) It is not helpful to think of this as a textbook. Most of its 1600 pages of tiny print consists of extracts of primary sources. So use it as a portable library instead and browse selectively. Most of the key readings we ask you to look at for seminars can be found in it, so having a copy is certainly useful. Each chapter starts with a reasonably brief overview, which is like a textbook, and can be used as such. The quality of these overviews varies. Later ones (by Michael Freeman) are more coherent and rather good. Earlier chapters show the efect of the book’s age, in which the now outdated views of its first editor have been encrusted with later emendations. Much of this older core could benefit from a thorough rewrite and is better avoided. General Textbooks There are (at least) 10 general jurisprudence textbooks now on the market. None of them is worthless, but some provide a more balanced match to our course than others, and some are intrinsically better (more thoughtful, more detailed, more accurate) than others. Diferent books will better suit the way you engage with the subject than others. However, we recognise that you may need some guidance in order to make your selection.

Bix

Coyle

McLeod

1. Introduction

Substantial methodological introduction in chs. 1-2.

Substantial historical introduction Ch 1.

Helpful account, with useful focus on moral argument.

2. Legal

Ch. 3-4

Ch. 6: Hart

Chs. 4-5. Ch.

Meyerson Brief but presents issues in clear, easy to understand language. Ch. 1, also 2

Penner

Brief account of issues at stake.

Chs. 3-5 Lots on 5

Positivism 3. Natural Law Theory

Ch. 5-6 also ch. 11

4. Adjudication and Dworkin

Ch. 7 and 17. Chs. 13-14 are extensive on adjudication

5. Rights

Ch. 10

6. Justice 7. Law and Society

Ch. 8 A few odd bits in ch. 22

8. Critical Jurisprudence

Ch. 19

1. Introduction

Ratnapala Helpful overview of subject-matter

Chs. 9-10: Finnis and Fuller; also ch. 11

Ch. 7: Dworkin

Ch. 8: Rawls

2 is useful context

and 3

Hart

Chs. 3 and 6

Chs. 2 and 3

Ch. 2

Chs. 7-8

Chs. 2 and 3. Dworkin, not adjudication . Realism in ch. 4

Chs. 6 and 9

Ch. 5

Ch. 7 is tangentially related

Ch. 10

Ch. 7

Ch. 9

Chs. 4 and 8 (feminism in depth)

Riddall

Simmonds

Veitch

Very brief, practical

Brief

Brief

Ch. 5 on Hart

Part I tangentially Part I tangentially Part II full treatment of adjudication

Chs. 13-15 (very full treatment) Wacks Helpful basic distinctions Chs. 3-4, inc. Raz Ch. 2. Thin in places

2. Legal Positivism 3. Natural Law Theory

Chs. 6-7 and 8 in part

Chs. 2-4 and 11 Chs. 5-7 and 12

4. Adjudication and Dworkin

Bits of chs. 5 and 8. Thin

Chs. 8-10 and 16

Ch. 6

5. Rights

Ch. 13. More analytical than substantive

Chs. 13-14

Ch. 8

Ch. 10

6. Justice

Ch. 14

Chs. 15 and 18

Chs. 1, 2 and 3

Ch. 9

7. Law and Society

Ch. 9

8. Critical Jurisprudence

Ch. 10 (Marx in ch. 9)

Chs. 2-4

Chs. 4 and 7

Part III full treatment Chs. 19-20

Ch. 5 and part of 6

Ch. 7 Chs. 13-14 (Marx in ch. 7)

Comments on individual texts Brian Bix, Jurisprudence: Theory and Context, 7th edn. (Sweet & Maxwell, 2015). Tends to give briefer, more descriptive, accounts of a wider range of theories. Good, but more useful as a short reference work perhaps. 6

Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2nd edn. (Bloomsbury, 2017). Very nicely written and thoughtful with a clear Natural Law/Thomist-leaning agenda. Presents an argument through the text, but coverage regrettably narrow. Ian McLeod, Legal Theory, 6th edn. (Palgrave Macmillan, 2012). Comes out lower in the rankings, but actually provides an acceptable balance between coverage and quality. Useful. Denise Meyerson, Understanding Jurisprudence (Routledge-Cavendish, 2007). Slightly unbalanced in relation to our course, with gaps in adjudication and sociology of law. Treatment of the first part of the course (legal positivism/natural law and Dworkin) cross-cutting rather than sequential. This, together with its more advanced style, makes it better as a revision text for later in the year. There is also a book by her called Jurisprudence which appears to cover the same ground as this book. J.E. Penner and E. Melissaris, McCoubrey & White’s Textbook on Jurisprudence, 5th edn. (Oxford University Press, 2012). Very similar in format to Wacks: explanations with boxed quotations. Coverage very unbalanced for our course; Wacks is preferable. Suri Ratnapala, Jurisprudence, 3rd edn. (Cambridge University Press, 2017). Relative newcomer, with good coverage and an approach which matches our course well – i.e. thoughtfully engaged, but without committing to a particular school of jurisprudence. J.G. Riddall, Jurisprudence, 2nd edn. (Butterworths, 1999). Lots of short chapters; chatty, informal, ‘tongue-in-cheek’ style. Very basic accounts of the theories. Too simple really. Nigel Simmonds, Central Issues in Jurisprudence, 5th edn. (Sweet & Maxwell, 2018). Excellent discussion of 2/3 course, with particularly strong accounts of utilitarianism and rights theories. Has a (submerged) agenda in line with a thin, procedural, natural law position. Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts, 3rd edn. (Routledge-Cavendish, 2018). Focuses more on applied jurisprudence. Part I covers early parts of the programme in a very difuse form; parts II and III contain two in-depth and very helpful studies of adjudication and sociology of law respectively. Fantastic as a follow-on text. Don’t try it to start with. Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, 5th edn., (Oxford University Press, 2017). Clear and straightforward explanations, with good coverage. A useful text. Margaret Davies, Asking the Law Question, 4th edn., (2017, Thomson Reuters). This is imperfect as a starting textbook, but works well if one wishes to explore how the insights of critical legal studies apply to the various questions considered in each seminar. These are mainly considered in chapters 1 to 4. Chapters 5 to 8 ofer a detailed introduction to seminar 8. Because its content does not map well onto the structure of the unit, it is not included in the following rankings. It may well be that some students will find this an intuitive and plausible way into the study of jurisprudence.

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Rankings

1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th

Coverage Wacks Ratnapala Bix Riddall Meyerson Simmonds McLeod Penner Coyle Veitch

Quality Simmonds Veitch Coyle Meyerson Ratnapala Bix Wacks McLeod Penner Riddall

Overall 1st = Simmonds 1st = Ratnapala 3rd Wacks 4th = Bix 4th = Meyerson 6th = Coyle 6th = Veitch 8th Riddall 9th McLeod 10th Penner

Overall Advice Use (a) Simmonds AND (b) either Wacks or Ratnapala. Use Lloyd & Freeman for primary sources and as a textbook for the last two seminars Bix, Meyerson and McLeod are also useful. Coyle and Veitch have strengths in specific areas, but are too narrow to serve as general textbooks. Penner and Riddall are ruled out by a mixture of thin coverage or weaker quality.

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Timetable Unit timetable outline 2018–19 Week 0 1

Week commencing 23-10 30-10

Lecture

2

7-10

3 4 5 6 7 8 9 10 11 12

13

14-10 21-10 28-10 4-11 11-11 18-11 25-11 2-12 9-12 16-12 23-12 30-12 6-1 13-1 20-1 27-1

1: Introduction (JR) 2: Legal Positivism 1 (BS) 3. Legal Positivism 2 (BS) 4: Legal Positivism 3 (BS) 5: Natural Law Theory 1 (PC) 6: Natural Law Theory 2 (PC) 7: Natural Law 3 (PC) 8: Adjudication 1 (JR) 9: Adjudication 2 (JR) 10: Adjudication 3 (JR) 11: Rights 1 (JR) 12: Rights 2 (JR) 13: Justice 1 (JM) No lecture Christmas vacation Christmas vacation Christmas vacation JE1 JE2 (Mid-sessional examination) 14: Justice 2 (JM)

14 15 16 17 18 19 20 21 Ev1 Ev2 Ev3 22 23

3-2 10-2 17-2 24-2 2-3 9-3 16-3 23-3 30-3 6-4 13-4 20-4 27-4

15: Sociology of Law 1 (JM) 16: Sociology of Law 2 (JM) 17 Sociology of Law 3 (JM) 18: Critical Jurisprudence 1 (JC) 19: Critical Jurisprudence 2 (JC) 20: Critical Jurisprudence 3 (JC) No lectures No lectures Easter vacation Easter vacation Easter vacation No teaching 21: Revision (PC)

Seminar

Seminar 1: Introduction Seminar 1 Seminar 2: Positivism Seminar 2 Seminar 3: Law and morality Seminar 3 Seminar 4: Adjudication Seminar 4

Seminar 5: Rights Seminar 5 Seminar 6: Justice Seminar 6 Seminar 7: Law and Society Seminar 7 Seminar 8: Critical Jurisprudence Seminar 8

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Seminar 1 What is jurisprudence? This seminar will begin to address the basic questions of jurisprudence: what it is and how we study it. Three well-known texts, which present three very diferent answers to these questions, will be studied in depth. The seminar is also concerned with practical matters such as the assignment of future seminar readings and presentations, study tips, assessment and feedback. Reading Lloyd and Freeman, Chapter 1; or Wacks (ch. 1) and Ratnapala (ch. 1); or B...