Jurisprudence tutorial notes PDF

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Full tutorial notes from Jurisprudence in 2020. Achieved high distinction....

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Jurisprudence tutorial notes Week 1: - Jurisprudence  philosophical aspect of law - More conceptual questions – what is the nature of law, what is it function, what is the morality? - Positivists vs naturalists Why do we obey the law? What (if anything) distinguishes obedience to law from other kinds of obedience? - Austin  law is a mechanism of guiding our behaviour - What other mechanisms are used to guide behaviour = customs (standing in line), family, friends, religion/morality, media (might generate social norms), peer pressure - What makes law distinctive? o It is enforceable  Austin – what makes law different is that it is enforceable o Austin = command theory of law  the law is a command to the sovereign backed by the threat of sanctions  There are different types of penalties that apply to law that are different from other ways of guiding behaviour  Specific sanctions = imprisonment/fines  It is the beginning of legal positivism  the view that laws are posited by the sovereign and backed by sanctions – we obey the law to avoid criticisms - Sovereign = state – has power over citizens of the state o We follow the commands of the sovereign – we habitually obey - Difference between descriptive statements about law and normative statements o Descriptive theories = describing law as they see it (external point of view)  Sovereign is powerful, if people don’t obey the law they are punished - Is external point of view the right way of thinking about social behaviour o What was missing  the internal view of why the law is made – ignoring people’s beliefs, desires etc. - We obey the law bc it ensures smooth social functioning – group effort - We get the benefit of the law – provides us with rights (ability to enter into contract) and take action when rights are violated o Law is not about sanctions – it doesn’t just stop you from doing things, it is also an enabler o Criticism of Austin – he doesn’t appreciate the power conferring area of law - In relation to criminal law – we typically tend not to break the law o Is it just because we don’t want to get into trouble? o Morally it is the wrong thing to do o It is not the law that is guiding our behaviour, it is our morals  Here, Austin would argue that the law is just aligning here with your moral beliefs  our morals guided this law  Even if it wasn’t illegal, most of us wouldn’t go around murdering each other - We obey the law bc it’s the law – it is its own normative authority o Hart criticises Austin for this  believes it is a limited view of the law – it doesn’t just stop us from doing things, it enables us to do lots of things too o Austin likens the law to a gunman – you fear for your life so you give your wallet (you obey the law) o However, you are not actually obligated to hand over your wallet – he doesn’t have any normative authority over you – just being a bully o However, this is not how the law functions for the majority o We tend to obey the law since it is the law – we ought to obey it  We think we should obey it bc it is the law not because we might get into trouble  The law ought to be obeyed  we think that we ought to obey the law bc it is the law – it is a normative force

Even when laws don’t seem to protect us, we still obey it (even if we don’t agree with it) o Therefore, Harts criticism  yes we obey the law bc we don’t want to get into trouble, but on another level, we also tend to obey it bc it’s the law and it ought to be obeyed Austin also assumes that the sovereign is an entity that stands above us but doesn’t fully appreciate that the sovereign itself is not above itself (doesn’t have the power to do whatever it wants) o Austin theory cannot explain the continuity of sovereigns o Says that law is habitually obeyed – but the sovereigns change all the time however, the laws or our obedience doesn’t change o Positivists struggle to explain democracies  In a democracy, the sovereign is basically us – they are our representatives 

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We often look for legal solutions to social and political problems. What do we expect the law to do in these situations? Week 2: Do you find Hart’s distinction between ‘being obliged’ and ‘being under an obligation’ convincing? Why or why not? - Positivists believe and law and morality are 2 distinct things o Contingent relationship  whether or not something is al w is different to whether it is a moral or immoral law  we still see it as a law even if it is not moral Austin puts 'the law of honour', 'the law set by fashion', and 'International law' under one umbrella, saying that these should not be called law as they are merely rules "set and enforced by mere opinion" (Austin, p. 20). Do you agree? How is Austin using the word 'enforce' here? Is there any difference between rules of law, rules of morality, and rules of religious practice? How would Austin and Hart answer this question, and what reasons might they give for their answers?...