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Jurisprudence Lecture 1 15th^ September Course Divided into 3 sections 1 st: Law as a legal system 2 nd^ Law and morality 3 rd^ How law interacts with society and other outside influences Different sections correspond to different traditions/views of jurisprudence. Can be seen as antagonistic but also as different part of complimenting cohesiveness What is jurisprudence? As a subject General o Looks at general truths about law Law is found in all different laws throughout different societies in history. All are meant to serve or produce law, transcend the limitations of space and time. Legal norms Standards of behaviour o Do or do not o You have the right to do something o What is right and wrong to do according to the law Rules and principles o Rules are generally norms o Principles are more general. Considered as existing without a presence in a formal legal text/in the thinking of a judge Origins of law Don’t use sources as it has positivist implications What the judges say/officials or What the judges say/officials as far as society agrees Legal authority Binding force of law o Might say that law is binding only to the extent that statutes make sense in regards to justice Law might put someone in jail without any real moral reasons Similar to legal norms Legal reasoning Ways of arguing Necessary to reach valid judicial decisions? Legal practice Ways to go to court Multidimensional o Descriptive
Helps us to understand what law is here and now , there and then without any valuation whether it is good/bad What made it law o Aspirational Suggests we should mostly emphasise how well these legislative laws/judicial decisions do in reflection on society Law has a mission to bring about, what is the values? o Explanatory Brings together the two Says that this is the law, make an evaluation but go beyond that and find out the social conditions/pragmatic environment that brought about that law. Goes beyond making an evaluation Definitional o Law as” institutional” “normative” “order” Neil maccormick Not just institutional o Not all humanely recognised and formalised practices are law o Family is an institution, starts without the interference of law o Law is also institution, formalised in its own way The constitution gives different values and also the courts o Not all institutions are law Not just normative o Not all forms of binding action-guidance are law Law guides our behaviour and shapes it Some actions have sanctions that persuade folk from performing an action. However, personal moral values are norms that persuade folk Religious values are also norms o Neither are laws Not just order o Not all systems of posited/customary rules are law Posited Put forward by legal officials. Eg judges or elected officials in parliament Customary Comply with it simply because we know it as practice o Lots of social rules But also within law as well Less developed societies have this o Law is all of these things together Contested practical
o Elements of legal order Rule making through rule following leads to institutional competence Rules that define the entire thing To understand law as a system need to see that rules are created by following other rules but there may still be other ways of making rules o These apply to all legal theories including positivists and non-positivist ones Introduction to legal positivism as a theory of law o Theory Philosophical doctrine that is developed and put forward by those that are not legal officials Does not have validity in itself. Helps us to understand how legal systems work A theory about legality The properties of the things that can be considered legal What makes some rules legal? Some principles legal? What makes an authority a legal authority o Special focus on the origin of law, legal norms and legal authority Very important the source of the law, different definitions as to what qualifies What makes law binding? Different theories place different emphasis on the various aspects of law Doesn’t pay a lot of emphasis on legal practice o Certain conception of law as institutional normative order Humanely recognised and formalised aspects of law Major tenets of legal positivism o Law is a system of norms stemming from a determinate human source (not external source, god, reason or moral values) Very important in positivism Need to identify a human act to see what counts as valid law o Sources thesis: validity and content of law can be determined without any recourse to moral argument Go back to legislative rules and past case without any appeal to moral values that the law might serve, eg justice etc o Separability thesis Laws do not necessarily need to satisfy the demands of morality A law is a law even if it is unjust When evaluate law as law it is irrelevant to look at the morality Kelsen’s version of legal positivism o Kelsen Austrian living in Vienna between the World Wars Also experienced Nazi regime and the crude totalitarianism which threatened individual rights etc. His theory is in response to this o Kelsen’s vision An objective theory of law (scientific method- empiricism)
Would apply to all different legal systems and branches of legal systems regardless of the values they are meant to serve. It could cope both the laws of a parliamentary democracy and a dictatorship. Could apply both to criminal law and human rights laws, one which restricts people’s rights and the other protects it. o Applicability to different fields and different legal Moral relativism/subjectivism Comes from moral philosophy Presuppositions which let us understand how his theory developed Moral values are understood and applied subjectively, moral values are equally valid despite differences Moral values can legitimately vary within different societies in the same way that legal systems differ The pure theory of law: determination of law without resort to value laden judgements Both objective and committed to moral doctrines of moral relativism Can understand what counts as a valid legal norm and the content of it without any resort to value laden judgments o Can be political judgements, sociological judgements Given that morality varies as well as legal systems around the world, even moral judgments are excluded from trying to understand the validity of law o Kelsen’s account of legal norms A norm An ought (to be distinguished from an is) o Norms are not principles but are rather rules. Kelsen just used Norms o Standards of behaviour that are universal o The fact that someone ought to do something does not block in any way someone from doing something (an is) Validity of a Norm o Derived by a higher norm in a hierarchical normative system o It gets its power from another norm higher up the scale Ie Statutory instruments get their power from statute. Legal norms o Enjoy the above features plus o Hierarchically related norms that prescribe sanctions Sanction: coercive measure to persuade those that do not follow the norms o Kelsen’s account of the legal system A pyramidal order of norms tied together with a chain of validity Pyramidal: not just a hierarchy but it is a tapering pyramidal structure. o More concrete judicial rules at the bottom
o The basis of validity for the entire legal system Allows the judge to fundamentally give a binding decision o One basic norm per legal system Unique, persistent throughout each legal system Kelsen can happily exclude lawyers, moral philosopher’s references to multiple factors influencing a legal system. Allows there to be a basic fundamental norm. These references to different influences are vague. o Contextual/moral base for legal system are done away with o Self-validating Not validated by any other norm Answer to the question: How is it possible that this norm is valid if there is no higher validating norm? all other norms require this o Is gives validity to itself It is not a legal norm exactly, it is supra-legal Basic norm does not really have legal character Basic norm character of o Presupposed/assumed (not posited) Norm is not positive, it is repeating the self-validating aspect No agent acting under the governing of another norm to guarantee its validity What does it owe its existence to? Kelsen’s sources of inspiration o Wanted to be empiricist in law. Eliminate subjectivism. o Influenced by Kant Categorical imperatives and stuff Faculties that receive and process our experiences. They only exist in consciousness, organising the world by reason o Basic norm is more or less similar to Kant’s faculties inherent in everyone. Basic norm is discovered when attempting to understand the multiplicity of sources in the legal system o It is a mental construction, not an existing actual norm o Metaphysical/transcendal norm Not exactly accurate. The norm is not an idea. It is a presupposition o Way out of the system with reference to peoples understanding of the legal system o Content free Doesn’t direct subjects to any particular pattern of behaviour, simply to follow the law o Dependent on the general effectiveness of the legal system Norms practice is dependent on some facts
Egg king overthrown by revolutionaries, has nothing to command. Still considers himself a king at the head of the legal system. o The legal system doesn’t apply anymore; it has no authority or connection with the powers of the state. Might be self-validating but still depends on the fact that the legal system still applies People still follow the law and the authorities are still strong enough, exist to deal with wrong-doers o Resilient Basic norm can reappear, regenerate after revolution/after break in continuity of law. New constitution after overthrowing king. Basic norm comes into force a new one As long as law established, folk follow rules the basic norm exists Always there regardless of content/people in power. Evaluation of Kelsen’s theory o Kelsen’s insights into elements of legal order unity and the rule-governed character of law as a system (chain of validity – rule making through rule following) Kelsen gives good account of legal system as a coherent structure. Isn’t a random set he gives an idea for a unified system as a family. Legal character of legal norms (chain of validity sanctions state coercion) Origin of law (the basic norm) Sources/pedigree Legal authority (basic norms – effectiveness) Bindingness of law Why consider legal system having an impact? o Strong points Context independent, universal and durable Draws a line between law and other considerations varying of importance in different places/time Distinguishes between legal validity and moral correctness Associates legal validity with effectiveness Saves itself from accusation as being formalistic Allows critical evaluation of valid laws If thought that criteria of validity of law depended on morality, then when applied law would achieve safety preventing evaluation. Distinction above allows discussion of laws Highlights the value of the formal character of law Distinguishing law form moral considerations kelsen points out value of law that has formality itself. Importance of knowing the law is without knowing outcome of morality argument Gives certainty in law o Limitations Inadequate grasp of Change in law
Law is something that can be derived from basic principles of morality o From the basic principles all law o 3 basic principles Humans are vulnerable Humans are clever Humans try to survive as long as possible From this all laws can be derived o Try to legitimise the law by ways of reason. Shows the source of the law. o Law is just an extension of morality o Kant: once there is a the basic, fundamental principle all law can be discovered o Law was fragmented in the spirit of the law tradition. The traditional view of law. Law was presented as slightly fragmented, common law, statutes, precedent etc. Command theory generates analytical tools that help lawyers to conceive the law as less fragmented o Give clearer criteria to identify valid law Attempt to see law as less fragmented. What is law? Main Tenets of the Command Theory (and of some other early positivisms) o It attempts to provide criteria to discriminate what is legal from other social phenomena One thing is what the law is and the other is what the law should be. Criteria for identifying the law is distinct from identifying the validity of the law o The criteria for identifying valid law are based on the observation of facts (as opposed to the assessment of ‘value’ of the decision), within a particular conceptual scheme. Caveat 2 contemporary positivism o Sociological Positivism (Comte) Particular understanding of society which contains recipes for evidence-based scientific interventions o Legal Positivism Law as something that is created (posited) Crucial Elements of “Law as Command” o For every x, if x is a law it will either be Expression of a wish regarding something else’s actions backed by threats of sanction o this is the command part of the theory for Austin any threat can be a command sanction is not defined very well within the theory invalidity/voidablitilty of contracts wills, etc is also a sanction against the parties involved the invalidity of a law is a sanction against parliament o somewhat of a stretch
probably accepts too much o for the command to be a law it must be issued by a sovereign the command is not addressed to individuals but rather to a group of agents o defined conceptually o these commands are habitually obeyed this identifies the sovereign. Expression of sovereign wish o Provides criterion for the identification of laws which is not dependent on the value of those laws o There is a difference between The law as it is (i) The law as it should be (ii) o The command theory attempts to find a criterion for identifying that (i) which does not collapse into (ii) o Austin divorces himself form two weighty burdens of other ways of looking at law Natural law loses relevance Who is a sovereign/features of the sovereign o The sovereign is habitually obeyed by the social group o The sovereign does not habitually obey anyone else Does not obey anyone else by force of habit o Each society would only have one sovereign It may not be a single person, but may be a group of people o Divisible? Possible to have multiple sovereigns over different areas within the state. o Limited? For some (Hobbs) very few limits to sovereignty For others it may be limited within a particular realm Command Theory as a Heuristic Device o Command theory is hardly a straightforward device Used to help interpret the law. To help divine the inner workings of the law o It involves interpreting a number of aspects of legal practice “as if” they possessed some extra features (fictions) o This conceptual effort aims at generating both theoretical and practical advantages Jurisprudence Lecture 5 29th^ September Law as Command 2 Recap o It attempts to provide criteria to discriminate what is legal from other social phenomena
law not set by a determinate body exercising its will, such as customary law or public international law o there is no command of the sovereign o there are no sanctions o law properly so called Laws of God Not created by humans. Human laws set by the will of a determinate non-sovereign body (law of associations or of local authorities) Or where the form of the law does not involve a command backed by a sanction eg constitutional law The invalidity of the law is a sanction. A contract between two parties if the contract becomes void it is a sanction Advantages of the theory o First time someone framed central question of jurisprudence to be about the boundaries between law and Other domains of social normativity (eg positive morality) Morality tout court o Its emphasis on command backed by sanction makes manifest the dimension of legal effectiveness Criterion for legal theory gives a judgement on the effectiveness of a law. o If there is no sanction, there is no law o If it is not habitually obeyed there is no law o The theory gives precedence to the positive law of the sovereign, thus subjecting all putative sources of legal normativity (in particular common law) to the sovereign’s control Puts the law under someone’s control. Means someone can shape the law. The law is available to us o Offers a clear account of the unity of law Allows us to imagine the law as a single entity controlled by someone. Disadvantages to the theory o It is biased in favour of legislation at the expense of other theories of law o It downplays the importance of both the common law and of the customary law (which fit awkwardly with the theory) Common law is important as it allows people to anticipate outcomes. Gives more room to manoeuvre than legislation o Theoretical objections Insofar as sovereignty is important, it is a more abstract idea (i.e. more impersonal and continuous over time between different rulers) New ruler comes to power, not habitually obeyed because they have never given an order. Seems unable to account for certain legal rules, in particular power- conferring rules. Hart’s main criticism. o Half of the legal system is ruled out, this half is important because they help to identify/give basis to the other half
Importance of sanctions is overstated: there is a difference between having an obligation and being obligated (as Hart demonstrated) Jurisprudence Lecture 6 2nd^ October Law as a system of rules o Hart’s version of legal positivism Law as a system of rules o General category for mainly positivist theories Recap o Legal positivism A theory about legality The features that make rules/systems/principles that we take as legal to be legal o Elements that make it legal Special focus on the origin of law, legal norms and legal authority 3 key terms throughout positivism o Jurisprudence is a number of topics that are used in different theories. o Positivism focus on these three features Not necessary for a positivist to act like a formalist. o Isn’t a formalist approach to neglect all other aspects of the law than the ones above o But is a lot of overlap Positivism is compatible with both ways Certain conception of law as institutional normative order Standard of behaviour that is required on the basis of what is considered to be right/wrong o Major tenets of legal positivism Law is a system of norms stemming from a determinate human source (not from an ‘external’ source – e.g. God, Reason, and Moral Values). Sources Thesis: The validity and content of law can be determined without recourse to moral argument. Separability Thesis: Laws do not necessarily satisfy the demands of morality. Hart’s version of legal positivism o Hart’s vision A Restatement of Legal Positivism: critique of Austin’s version & inspiration from analytic philosophy(particularly, the ordinary- language philosophy) Austin’s theory was prevalent at the time so was more sense to criticise o Austin’s theory falls short with private law and international law Hart wished to accommodate under legal philosophy analytic philosophy which was a recent development o Was a new way to look at things Was a clear method to analyse stuff to get to the core of the subject at hand. o Minimal, perhaps abstract truth at the heart of the matter
Recognised as not that different from stating a dislike for a particular piece of art. A different person can disagree but can still recognise their criticism o “if I held the same standard of beauty as you, then I would arrive at the same conclusion in disliking that particular piece of art” o The Internal Point of View: that of a subject of the rule who recognises the rule as providing a standard of criticism: expectation that others comply with the rule. criticism of those who do not comply with the rule point of view of the people that are bound by the rule do well when you criticise others for not following the general rule need to have an analytic account of the rules. The above rules apply to rules in general, but in order to be a valid legal rule they must have one of the following: o Legal Rules: duty-imposing rules (primary rules) and o power-conferring rules(secondary rules). Response to austin’s limited account of the rules. The Validity of Legal Rules: a matter of them being: o 1) generally followed by legal officials and laymen and o 2) Conceived from the internal point of view, at least by legal officials. Kelsen Legal validity has to do with the chain of validity o The pyramid of legal validity etc Hart Validity is something to do with the distinction with internal and external view o Rules must be followed generally by the subjects o Some people within the system look at the laws with the internal viewpoint Who are the best people to do so? Legal officials in general o They have a closer link to the legal system The difference between officials and laymen, is shown by the difference in legal rules Duty imposing rules Power conferring rules Jurisprudence Lecture 7 6th^ October Hart’s Version of legal positivism part 2 o Recap Hart’s understanding of rules and stuff External/internal point of view Distinction between primary and secondary rules Legal rules o Must be able to look at from both internal and seconfary rules They need legal officials to take the rules seriously Distinction between primary and secondary rules
Hart’s account of a legal system o Broad level of overall compliance on the part of citizens Not as much emphasis on sanctions as in Kelsen or the other guy Not looking at distinction between internal and external point of view o An interplay between primary rules and secondary rules ( law is not a set of commands issued by a sovereign) Main contribution of Hart, in response to the shortcomings of Kelsen/Austen Law is not just a matter of commands, allows greater use of private law/contracts etc Primary rules are related to power conferring secondary rules Officials are empowered to create primary rules by other secondary rules o This creates the duty creating primary rules o Secondary rules: rules of change, rules of adjudication and the rule of recognition Two broad categories Rules that give power to legal officials Rules that give power to private individuals to regulate their own affairs (contract etc.) o This is not made explicitly, rather is implied Eg Constitutional rules Also accounts for customary rules due to influence of social practice Empowers certain officials, judges, to settle differences Much more developed than Austen’s Sovereign Hart: officials are “enveloped” by the rules Rule of recognition o Counts as one of the secondary rules o Different from other secondary rules as it doesn’t just apply to legal officials Doesn’t just apply to citizens acting as private agents o Applies to both legal officials and private agents o Nature For the rule to be established and applied don’t need every single official/citizen to follow it Makes reference to overall compliance, a large number/significant number Hart claims that this is a matter of social practice Practice of internal point of view at the very top/fundamentals of a legal system Matter of social fact o Is fundamental Can be compared to Kelsen’s reference to the “grundnorm” o Key features Secondary rule Special Doesn’t apply solely to officials/individuals Not necessary for it to be followed blindly by everyone
Some say that the rule of recognition can be understood to have some legal principles o It cannot account for any content-related limitations to official’s discretionary powers (egg when it comes to the exercise of judicial discretion) Secondary power conferring rules cannot impose any duty at the same time Can’t force judges to take account of other stuff o It does not offer a justification of coercion in law Justification A way of understanding law that is different from explanation What is the reason for doing so o It draws too sharp a distinction between legal officials and laymen (ordinary citizens) o The practice theory of rules does not offer but a descriptivist account of legal obligation Jurisprudence Lecture 8 9th^ October Law and morality: introduction to natural law Separate from law as a system o Complement each other Natural law theorists have a much longer history compared to positivists o The dominant theory from ancient roman/Greek times until about Austin etc. Early start of positivism can be seen around 16th/17th^ century was the first emergence of the theory. It was in response to the monarch’s desire to monopolise law making etc. Classical and early modern natural law traditions are to be contrasted with the modern natural law theories Introduction to natural law Much more vague due to the length and range of time and theories o A necessary connection between law and moral values Differentiates all theories of natural law and positivism “necessary:” wrong to attribute to positivists that all laws are valid no matter whatever they are right or wrong Kelsen states this. Not the case with Hart o Laws would remain laws in other legal systems no matter if they have no reference to moral values For something to be law it has to be in some way connected with moral values Much more demanding theory of law o Sets the bar much higher “moral values” Distinguished from morality. o Morality is too vague o Moral objectivism Moral subjectivism: Discussed in relation to Kelsen
Suggests that moral values can be understood and agreed upon by all different people despite they belong to different legal systems by engaging in reasonable debate Eg someone advocating torture would not stand up to reasonable debate even if their legal system allows it. o The perplexing issue of legal validity: lex injusta non est lex Lex injusta Put forward by st Augustine and furthered by Thomas Aquinas Unjust law is not law o It stops being legally valid Makes the connection of law and moral values a necessary condition of legal validity Perplexing because it is difficult to accept but also because it is possible to defend natural law without reference to this issue o A necessary connection between law and moral values Reference to the substance of law The patterns of behaviour issued by individual legal norms and the reasons that law’s authority is founded upon o in order to know the law need to know the origin of the law and the grounds they are formed upon is morally acceptable Kelsen: Grundnorm and Austin: appeal to sovereignty wouldn’t fall under this o For a legal system to have actual authority it must have respect for its subject’s freedom and liberty. o The above can be shown separately to the form of law law must be intelligible/coherent enough so that we can pursue our good moral lives under the law o an unpredictable law that changes every day without any official publication explaining it would be difficult to follow the law the interpretation of law with special emphasis on judicial interpretation o natural law theories throughout history classical Greek interest in the Natural Order of the world Plato, Aristotle o Understand the universe through reason. Everything has its place, this goes down to the rights and morals of humans Early Christian concern with God’s law and its relation to human made (posited) law St Augustine, St Thomas Aquinas o The monarchs were expected to issue rules in accordance with the expected moral values etc. god and stuff Early modern discussions on the natural foundations of the social contract through which we form civil society
