Jurisprudence - Lecture Notes Semester 1 PDF

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Introduction to Jurisprudence Jurisprudence legal reasoning, theory and philosophy of law Enquiry: greater understanding of the law, what it is, what it does, and what it ought to do Why do we study it? Greater analytical capacity and critical understanding of the law What is the law? System of rule...

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Introduction to Jurisprudence Jurisprudence = legal reasoning, theory and philosophy of law Enquiry: greater understanding of the law, what it is, what it does, and what it ought to do Why do we study it?  Greater analytical capacity and critical understanding of the law What is the law? System of rules and guidelines enforced through social institutions to govern behaviour in society The system  Government  

Ideology/politics Formal equality

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Sanctions Mediates relationships

No accepted definition of the law Different legal theorists Hart – positivist Austin – positivist Holmes – decisions of courts Fuller – morals of society Dworkin – interpretative concept to achieve justice What is the right thing to do? – core question  

Law vs. morality as a regulator of conduct Morality = a set of beliefs, values, principles and standards of behaviour

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enforced informally through social pressure Is legal behaviour always correct? Is illegal behaviour always wrong?

‘The law in its majestic quality makes it an offence for rich and poor alike to steal a loaf of bread or to sleep under a bridge.’ – Anatole France  This law clearly applies to the poor man – formalist statement Prisoner 24601  Imprisoned for 19 years for stealing a loaf of bed  

Is this right? UK Theft Act 1986 – 5 elements of theft – meets the criteria

 Is the behaviour illegal? Yes – you simply apply the statue  Is the behaviour wrong – Not necessarily * Difference between ILLEGAL and WRONG Freeganism  

January 2014 – men charged from stealing food from a skip Is it theft to take discarded items?

 Do the reasons matter? E.g. necessity v trying to save money  Morality of throwing away/wasting food * Once again, moral v legal argument * Impact of public opinion and disregard of statute What IS the right thing to do? 1. Existing law 2. Morals 3. Combination of the two 4. Law should be changed 

Impact of legal theorists and own argument (not own opinion)

Law and Morality

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What is the right thing to do? LAW versus MORALITY as a regulator of conduct MORALITY = a set of beliefs, values, principles and standards of behaviour enforced informally through social pressure CAN and SHOULD we draw lines between what is morally desirable and what is legally obligatory? The big debate Natural Law Theorists  Law and morality and inherently linked  

There is a underlying morality to legal norms and standards Examples: Thomas Aquinas, Thomas Hobbes, John Locke

Legal Positivists  Separation of law and morals  

Any moral value that the law might have is merely contingent Examples: Jeremy Bentham, John Austin

Facts and Norms  Do you think of the law (normative rules – established on patterns of  

behaviour) as being the same as physical laws? Human laws are rules or norms, NOT statement of fact Physical laws are subject to testing, verification and falsification

Legal Validity  

A legal rule does not state a fact but rather prescribes a course of conduct We have to examine our preconceptions about the law

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A legal rule demands that we either do something or refrain from doing something A legal rule is derived from a valid authority

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How can we distinguish between legal and moral norms? Are they connected or separate? Does the law have a necessarily moral basis? The OUGHT/IS distinction 1. What OUGHT the law to be?  Normative legal theory – concerned with values 2. What IS the law? 

Analytic/descriptive – concerned with facts

There are some overlaps of normative and descriptive legal theory Cannibalism: Illegal? Immoral? Both?  

‘The case of the speluncean explorers’ [1949] R v Dudley and Stephens [1884]

Natural Law Theory  ‘is’ and ‘ought’ questions combined  legal = moral and moral = legal Positivism  

The two questions must be kept separate Legal might = moral, but it doesn’t have to

Goal Based Theory: UTILITARIANISM Bentham and Mill influence positivism = the greatest good for the greatest amount 

Looks at the end product, goal or consequence of an action

Rights Based Theory: NORMATIVE THEORY Locke, Dworkin = a collection of theories which try to work out the respective value of rights 

Questions: who has rights, where do they come from?

Lord Bingham on ECHR and HRA 1998: ‘the basic and fundamental rights which everyone has in this country ought to enjoy simply by virtue of their existence as a human being.’

Theories of Natural Law

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Big Debate Timeline:  Greek origins  Stoic Roman idea of Natural law  

Christianity Secular turn

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Positivism Restatement of Natural Law

Originally recognised as morality of behaviour The two great questions in Natural Law Theory 1. How do we discover the natural law? 2. What effect has natural law had on human behaviour? Main Points  Objective moral principles that depend upon the nature of the universe and  

are discoverable by reason Factual statements may be proved, moral judgements may not Natural law struggles with the critical problem of whether moral propositions can be derived from propositions of fact, namely whether an

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‘ought’ can be derived from an ‘is’ Human laws are not statements of fact – they are not subject to verification There is a rational order that exists in nature that is discoverable by human

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reason Authority comes from nature, not from human beings

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These create a higher form of law as opposed to manmade law which can be invalidated

Classical Natural Law Theory Ancient Greeks – Plato, Aristotle  Search for justice and ‘universal good’  

People have an innate sense of what is right and wrong Natural law is that which is in harmony with other laws of nature

Roman Legal Thought – Stoics, Cicero  Natural law is not man-made so it cannot be repealed 

Morally binding on all, although state law can violate it

Christian Scholars – Acquinas  Teleological view – divine plan and predetermined purpose

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Human law’s role is to serve the natural law

“True law is right reason in agreement with nature … it is a sin to try to alter this law. God is the author of this law” – Cicero, On the Republic Does moral validity = legal validity? Does natural justice = law? How much injustice leads to invalidity? How do we judge this? Examples: 

Legal Nazi regime in Germany

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British occupation of India (Ghandi) US civil rights movement (Martin Luther King)

Thomas Aquinas (1225 – 74) 4 types 1. Eternal law – divine reason only known to God 2. Natural law – discoverable by reason by rational creatures: a higher law 3. Divine law – the law in scriptures 4. Humanly posited law – law enacted for the common good 

Unjust laws are a perversion of law and do not bind moral conscience – these laws are seen as defective

Political Natural Law Theory 

Social contractarian theories (Hobbes and Locke)

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Breach of natural law can result in political revolution

Blackstone (1723 – 80) 

English Christian natural law theorist; any positive law conflicting with natural law is null and void

The Secular Turn 

Begun with Hugo Grotius

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Natural law would not subsist even if God did not Now understood as immanent, universal, rationalist and secular

* Nothing has really changed – it was forgotten about with the rise of positivism

Neo-naturalism Theories in the 20th Century

John Finnis’ Neo-Thomism * Look at lecture slides Lon Fuller’s ‘internal morality of law’ 

Law is the enterprise of subjecting human conduct to the governance of rules

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Impossible for citizens to obey law with procedural defects and so certain procedural principles are required to make a legal system

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Legality is, for Fuller, a moral ideal that is built into the very definition of the legal system

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Move from substance to procedure 8 principles (Rex story)

The Social Contract: Thomas Hobbes

28/09/2015 11:16:00 Hobbes and Locke – hard to categorise in the positivism/natural law debate as both access different parts of both arguments Two main strands in political philosophy  Secularism – the idea that the law of nature can be elaborated without reference to theological presuppositions o Break with the idea of a higher power 

Individualism – recognition of natural rights i.e. those rights enjoyed by all humans by virtue of their nature o The age of rights

Social contractarians = first appearance of rights 30 years ago = when rights first began to gain ground Rights were understood as the conscience of law and are now seen as the rhetoric of law Emergence of the modern state  

Autonomous powers of reason Breaking away from religious/political regimes of the medieval

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Explanation based on the centrality of individual moral will Used the platform of natural rights, at the core of which lie the ideas of freedom and equality

Consent Man is born free but he is everywhere in chains – Jean-Jacques Rousseau No man can be subjected to the political power of another without his own consent – John Locke 

Obedience to authority is legitimated by voluntary submission to those who exercise authority

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Idea of submission being voluntary that is important If men are all free and equal how do we exist in the societies we live in

today? Why would people voluntarily relinquish their natural rights (power) to the collectivity? 

To receive some benefit or to secure certain objectives

Social Contractarians: Hobbes, Locke & Rousseau (less important) HOBBES (1588 – 1679) See timeline for context – Henry VIII, Guy Fawkes, English Civil War

‘Every man is enemy to every man… and the life of man solitary, poor, nasty, brutish and short.’ – Hobbes lived through a time of upheaval and was disgusted by society. His main aim was physical security – you could only rely on your own strengths. 

His state of nature is a pre-social society, before the creation of a nation state

What caused this situation? 

Natural rights: the abundance of them causes problems and arguably no rights are absolute

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Jus Naturale – the right everyone has to use their own power for their own purpose

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The result of this is anarchy as there is nothing to restrict the use of this power

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Bellum omnium contra omnes – the war of all against all

Abundance of natural rights in the state of nature – therefore there is no peace, no government, no authority and no law How do we move to order? 

Hobbes’ Covenant – the social contract 

He uses Biblical language even though his thought is secular – reflection of the times and avoiding accusations of heresy (a smokescreen)

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‘I authorise and give up my right of governing myself’ Consent made by every person in society to create unity Covenant is with the people – not authority – giving up rights on the condition that everyone else does the same – every man with every man

The Leviathan  

Sea monster – a biblical creature – found in many contexts Mortal God, sovereign, artificial man, Civitas

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Represents diabolical power We have created it for our common peace

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Protective giant figure – metaphorical o Criticism – this person has all the power when the people have none o Any political order is better than anarchy

Is Hobbes’ thought secular? 

Mortal God is not dependant upon God’s support for its authority

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God is inaccessible – human beings have little choice but to construct a system of government and law for themselves and without God

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Hobbes equates faith with opinion i.e. subjective belief

Father of positivism? 

Justice and law are co-extentive (the same)

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Essentially makes him a positivist

The Social Contract: John Locke

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* related to essay question Social contract = intertwining of individualism and secularism Locke = father of liberalism Weaves ideas of natural law through the social contract Contractarianism   

A political theory of the legitimacy of political authority A moral theory about the origin or legitimate content of moral norms Do not ground morality or political authority in divine will

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Unit of the individual Justification for certain forms of government

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Hobbes, Locke, Rousseau, Rawls

Differences 

Hobbes uses the social contract to explain the validity of the political and thus legal order

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Used to reconcile the liberty of the individual citizen with the power of the State

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Justification and legitimation Relationship between citizen and government

Locke (1632-1704)  Age of enlightenment   

Context: great fire of London, great plague, glorious revolution Argues against absolute monarchy Father of liberalism

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Second Treatise of Government – most famous book

Locke’s concept of the State of Nature is peaceful, idyllic, and benign. This is a stark contrast to Hobbes’ anarchic and violent concept of the State of Nature. The state of nature has a law of nature to govern it, which obliges everyone; and reason, which is that law, teaches all mankind – equal and independent with no harm. ‘Life, liberty and possessions.’ ‘In Common’  Main concern in the state of nature is hunger, and thus the means of 

subsistence become important We have a natural right to our preservation and life and also a right to other things that help this subsistence

Acquisition Theory 

How do we move from possessions in common to private property?

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Removes out of the state that nature provides, mixing your labour with it, has joined something of their own then it becomes your property

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This theory has been used to justify colonialism and land acquisition in the UK today

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The assertion of a claim should not be sufficient

Private Property 

Locke’s aim is to demonstrate that it is morally justifiable for individuals to take resources from their natural state (in common) and to keep them for themselves to the exclusion of all others.

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Original acquisition of property rights

Context 

Highly charged political debate in 17th C England about the legitimacy of property rights as against an absolute monarchy

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Private property rights were held only by the grace of the monarch, who could withdraw them at will

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Mixing your labour with natural resources adds value/improves them Perpetual ownership? How to continue improving something

Natural Right to Punish 

The law of nature is what keeps the peace and so a breach of this natural law can be punished (duty)

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This is because people have acted without reason

Transition to Civil Society People are at liberty to: 

Engage in innocent delights – non-violations

 Seek their own preservation  Punish violations of natural law This is not without problems:  

Subjectivity/bias – people would judge their own cases Proportionality – how much punishment is sufficient?

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Effectiveness/power – often difficult to carry out own punishment

Since we have entered into civil society and the commonwealth, we have quitted the power to punish and have given the right to the commonwealth to employ his force for the execution of judgement. This leads to the origin of the legislative and executive power of civil society.

Limited Government 

Individuals consent to be governed – fiduciary relationship

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We only relinquish the bare minimum as required for the state to exert it Delegation of some natural rights compared to Hobbes’ alienation

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People retain the right to resist tyranny and the right to rebel or revolt American Revolution – Declaration of Independence 1776 – used Lockean thought to justify their motives o ‘derive their just powers from the consent of the governed’ o This statement came from male white landowners – must be applied in context

Summary – copy from photo Comparison – copy from lecture slides

Classical Positivism

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Recap on the social contract  Moral emphasis placed upon the role of the individual  Justification for modern state 

Evidence of both natural law (Locke) and positivist thinking (Hobbes)

Justice and law For Locke, the ‘higher’ law of nature and the manmade law can differ, although they should not. For Hobbes, justice and law are co-extensive What is the right thing to do? Locke – follow natural law: normative issue Hobbes – follow the law: founder of positivism Positivists – separation of law and morals, any moral value that the law might have is merely contingent, descriptive, based on verifiable social facts Why is it called Legal Positivism? The law as it is posited – the law as it is laid out and stated – Bentham What laws are in force in that system depends on what social standards its officials recognise as authoritative… law is a social construction – Green Four main proponents 18th century – Bentham Austin 19th/ 20th century – Kelsen, Hart Bentham and Austin built on the ideas of Hobbes. They rejected the fiction of the State of Nature and the social contract as a way out of it BUT did argue that law depends on a sovereign person or assembly who is habitually obeyed.  Natural rights doctrine takes us away from the real idea of the law and  

what it actually is If people identify with a different form of law then they might raise evidence of a conflicting rule – this will lead to conflict and chaos ‘To say that human laws which conflict with the divine law are not binding, that is to say, are not laws, is to talk stark nonsense.’ – Austin Lecture V pp 184 [1834]

18th century problems of the Common Law 

Custom and practice embodying natural reason were legitimated by

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history and tradition and confirmed with reference to rationality Superstitious respect for antiquity Unwritten law is inherently vague and indeterminate

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Dangerous fallacies – appeals to the Law of Nature were simply ‘private opinion in disguise’

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‘Mere opinions of men self-constituted into legislatures’

Avoiding indeterminacy 

18th C common law failed to provide a clear and reliable public standard that could guide behaviour

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Indeterminacy affects legitimacy Codification (law reform) and the construction of a complete body of law His aim was to decrease what he consider...