WEEK 1 - What is Jurisprudence PDF

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Jurisprudence
Philosophical Theory of Law...

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LAW214 JURISPRUDENCE WEEK 1 – What is Jurisprudence? Readings Ch1; Introduction to Jurisprudence - Jurisprudence is generally conceived of as the attempt to understand thee social institution of law from the perspective of philosophy - The greatest question is whether jurisprudence is an analytical enterprise or a normative enterprise - Positivists put the social aspects of law center-stage and that they believe that moral reasoning is not necessarily needed to ascertain the existence and content of the law - Natural law theorists believe that law and morality are necessarily linked, while acknowledging that the way in which Dworking, Finnis and Fuller spell out the nature of this connection is very different - 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 minds that typifies the educated lawyer - The perspective provided by jurisprudence is an indispensable prerequisite to an adequate understanding of the law Lecture IMPORTANT TERMS; - Conceptual questions - Normative questions - Doctrinal questions - Empirical questions - Positive legal theory (opposed to normative legal theory – tells us what is the case) - Normative legal theory (tells us what ought to be the case) - Distinction between justificatory theory and critical theory - Distinction between first and second order question - Analytical jurisprudence The Subject Matter of Jurisprudence Involves philosophical or theoretical reflection on the nature of law and justice. We have to distinguish 4 different possible kinds of questions that can be asked about law. 1. Doctrinal questions 2. Empirical questions 3. Conceptual questions 4. Normative questions Jurisprudence is concerned with 2 of these questions; conceptual questions about law and normative questions about law. It is not concerned with empirical or doctrinal questions about law.

It is possible to ask different kinds of questions about the law: DOCTRINAL QUESTIONS These concern what the law is on some matter in a particular jurisdiction. (e.g. what rights are protected in the Australia constitution/what remedies are available for breach of contract). A doctrinal theory of an area of law seeks to systematically explain the form the law has taken in that area. Doctrinal questions can result in doctrinal theory to impose coherence, structure and system. Doctrinal theories are a kind of positive legal theory (see Solum). E.g.; - Doctrinal theory of implied freedom would look at all cases and seek to explain the principles behind the particular legal concept

EMPIRICAL QUESTIONS - These concern facts about the world. Arrive at empirically discoverable facts by measuring, examining and investigating the data. - A hypothesis is established and investigated when asking empirical questions - Descriptive enquiry about the world - Ryan describes them as first-order questions. – a question that arises within a discipline, the answers purports to be accurate reports of the facts. - Empirical questions about law can be simple (e.g., when did the Australian Constitution take effect?). - More complex empirical questions relate to the causes and effects of laws: explanatory theories (explain the theories regarding why the law is the way it is) and effects theories (see Solum).

CONCEPTUAL QUESTIONS Can’t be answered with facts, it’s a matter of conceptual frameworks. Second order questions are questions about particular concepts. - Eg what is beauty? knowledge? justice? freedom? science? free will? - 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’. - In order to answer conceptual questions, we need to undertake conceptual analysis. Jurisprudence is a branch of philosophy and one of its aims is to answer conceptual questions about law. These questions fall under analytical jurisprudence.

Examples of these conceptual questions: - What makes a particular rule a legal rule, as opposed to, say, a rule of etiquette or religion? - Does law have a function? If so, what is it for? - Do laws have to meet certain minimum moral standards in order to be called ‘laws’? - Are we under a moral obligation to obey the law just because it is the law? - Are there right answers to legal questions?

NORMATIVE QUESTIONS Answers to this question’s objective or subjective. Philosophers that argue these answers are subjective state that there is a gap between facts and values (or between is or ought) you can deduce a normative conclusion from factual or descriptive statements. Moral realists believe there are objective answers plausible to normative questions. They deny that there is a gap between facts and values, moral enquiry is an enquiry between what is right and wrong and there are facts to explain this. - These questions concern what is right and wrong, good and bad, just and unjust. - Some of the questions we consider in jurisprudence are of this kind. These questions fall under normative jurisprudence or normative legal theory (see Solum). - Within the category of normative legal theory, there is a distinction between - Justificatory/interpretive theories and (b) critical theories. - The former tries to find the best justification for existing legal rules. - The latter address the question: what are the best legal rules? Examples of questions dealt with by critical normative theories: - What are the pros and cons of the idea of rights? - Should human rights be judicially enforceable? - For what reasons can we legitimately be punished? - Are any inequalities of wealth justifiable? - Should the law be blind to differences such as race, gender and sexuality or sensitive to them? In answering questions such as the above we make moral judgements. Are these judgements subjective or objective? Is there a gap between facts and values? Outline of topics to be covered in the unit; 1. Positivist theories of law: John Austin’s command theory and HLA Hart’s social practice theory, and the difference between inclusive and exclusive positivism. Key claims are that the law is not necessarily just and that there are gaps in the law that need to be filled by the exercise of discretion.

2. The natural law tradition of thought: St Thomas Aquinas, John Finnis, Lon Fuller and Ronald Dworkin. Key claims are that the law is necessarily connected to morality and that there are right answers to legal questions based partly in moral reasoning. 3. Skeptical theories: American legal realism, law and economics. Both discount the importance of legal rules in judicial decision making. Regard the law as indeterminant. Psychology of the judge, sociological, economic factors and the description of how a judge should judge. Common law rest majorly on economic reasoning. Economics is what drives the law. 4. Radical theories: Marxism, postmodernism, Critical Legal Studies, Critical Race Theory. Aim to delegitimize the law. Highly suspicious of liberal legal values, mere ideological constructs. 5. Defenses and critiques of rights. Evaluate theories which defend rights – respect of human dignity, theories that criticize rights – Marxism. Freedom in the sense of freedom to act as we please in the private of our own right. To what extent should we be left at liberty to do as we please, free of state coercion? 6. Theories of distributive justice. Redress poverty through distributive manners. 7. Feminist and other ‘outsider’ theories of law. Systematically bias against woman and other minority groups in society. What is the point of studying issues such as these? - Education, not training. - ‘Wisdom’, not knowledge. - Logical and argumentative skills - Moral responsibilities of lawyers - Moral and political reasoning required to resolve some legal cases – e.g. when is discrimination ‘unfair’? Conceptual reasoning about the nature of law required to resolve some legal cases. Three examples: (a) Could Nazi laws be relied on as a defence to otherwise criminal action, or were the laws so evil that they could not truly be regarded as law? Can evil rules be law? Could the Nazi criminals rely on Nazi law to defend their criminal actions? (b) Could aboriginal customary rules about land be described as legal rules, notwithstanding the fact that there is no machinery for their enforcement? Court had to decide in the absence of machinery, could customary indigenous law be relied on. The indigenous plaintiffs had to establish that indigenous rules could be legal rules in the absence of any machinery to enforce these rules. Ch2.2. (What is law) (c) Sometimes we have to know what law is in order to determine what the law is on a particular matter: see the case of Riggs v Palmer.

Analytical jurisprudence, sometimes we have to know what law is in general in order to determine what the law is in a particular matter. Our ability to answer this question we must answer the philosophical question of what is law? In order to rely on your determination, you have to have a view about how to determine thee content of the law. The content of the law is determined only by social facts (legislative intention enacted the law), or, you have recourse to moral enquiry. In choosing between these, it is a jurisprudential question. (Riggs v Palmer)...