Examiners' Reports 2019: LA3005 Jurisprudence and Legal Theory - Zone B

Examiners’ reports 2019
LA3005 Jurisprudence and legal theory – Zone B
Introduction
The Jurisprudence and legal theory paper was divided into Parts A and B.
This is now the third year Part A took on the form of the set case. As a relatively
new innovation, we are very pleased that many students produced excellent
answers in applying legal theory to the set case which this year was In the matter of
M (Children) [2017] EWCA Civ 2164: see further below. Each year the set case in
Part A will change.
As well as knowing the case in advance, students also know from which three
topics or areas the three specific questions would emanate.
There were strict instructions on the exam paper. Specifically, students were not
permitted to answer particular questions from Part B if they had answered the
related question in Part A. The rubric was clear and examiners continue to be
happy to see that students followed it.
Part B contained nine questions covering a variety of topics as more fully detailed
below. As is often the case, there were more popular and frequently answered
questions. The questions on Dworkin, feminism and liberal principles of equality and
utilitarianism were most common. This is not surprising as students knew from our
instructions earlier in the academic year that these topics in general would appear
on the examination paper. The questions on Kelsen and Raz were less frequently
answered.
The papers were on the whole of a good-to-high standard. Examiners particularly
liked the engagement with the set case. Some performances were excellent, well
into the First category, showing intelligent and reflective handling of difficult
substantive content and demonstrating rigorous legal thought. Many congratulations
to those students for their hard work. For good marks, students need to
demonstrate their own imaginative, innovative, reflective thoughts in written form,
structured in a comprehensible way to clearly answer the question asked. There
were not many very poor papers. Those who did not do well routinely had not
answered the four required questions. Other low-marking scripts contained essays
that were very superficial with little content of any theory and very short.
There were papers that were achieving 2:2 marks in all their essays. These could
be improved by showing more confidence and creativity in handling the materials,
and showing more interest in the topics. Examiners can detect any reproduction of
stock answers that have been memorised. These will score poorly. Students must
use their own initiative and guard against this in future examination performance.
Students are urged not to regurgitate and use these so called ‘model answers’:
these are neither ‘model’ nor original. Further, it will not be enough to write and
describe everything remembered about a particular theorist. The specific question
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needs to be addressed. Spell out clearly in essay introductions how the question
will be answered so that the examiner knows your train of thought.
There is no guarantee that every topic in the module guide will appear each year on
the examination paper. There was some worrying evidence of students answering
on a topic for which there was no direct question. While students can try to explain
in their introduction why they are answering as they are, they cannot produce an
essay on X when X is not the focus of the question.
Please note no credit is given for substantive duplication.
We again repeat advice from previous years: read the question carefully. Make sure
you understand what exactly it required of you. Employ your knowledge of the
materials to answer the specific question asked. Plan how you will answer before
you start writing the prose essay and use your critical abilities to show you have
understood and appreciated the question as well as the theories you need to
evaluate. Have a clear intelligent structure to each essay and always answer the
required number: four essays, one from Part A, clearly following the rubric.
These comments are to enable you to achieve the best you can in this interesting
and challenging subject: to be able to demonstrate your skills of critical analysis and
reflection with evidence you are engaging with the relevant materials, thinking
clearly about the purpose of law. We hope you learn from this feedback to enrich
any further examination marks.
Comments on specific questions

PART A (The set case)
Questions 1–3 are about the set case In the matter of M (Children) [2017]
EWCA Civ 2164.
Question 1
To what extent can Dworkin’s interpretive theory of law provide an
explanation of the reasoning in the set case?
General remarks
The starting point to answer this question in Chapter 10 of the module guide:
Dworkin’s theory of law AND the set case. Answers need to set out an explanation
and analysis of Ronald Dworkin’s theory of interpretation showing that they
understand it by conveying knowledge of all the relevant aspects of the theory to
the examiners: remember the examiners only know your knowledge from what you
write in the exam essay. Students have to relate this to the reasoning of Sir James
Munby who gave the judgment in this case for all three of the Court of Appeal
judges involved. By referring to specific parts of the judgment, students should
show whether they agree that the judgment demonstrates Dworkin’s theory of
interpretation in action or not. They can agree or disagree, showing why, with
evidence from the case linked to Dworkin’s theory. Reference therefore needs to be
made to Dworkin’s criticisms of Hart and positivism in general, on the role of rules in
legal judicial decision making and an examination of what judges do in ‘hard cases.’
Students need to explain the distinctions Dworkin makes between principles and
policies. Students could mention some of the criticisms of these distinctions from
the literature. They needed to refer to Dworkin’s claim that there is a right answer,
or a best answer; how he claims law is like literature and his analysis of Hercules,
the ideal judge. How do these relate to the set case? Students must always
interconnect the theory analysis with the content and substance of the set case.
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Law cases, reports and other references the examiners would expect you to use
The set case and some other case law referred to within its judgment. The purpose
of the exercise is not a case review. Dworkin’s Taking rights seriously; Law’s
empire; all resources in the relevant chapter in the module guide.
Common errors
Repetition of the facts and decision made in the set case with insufficient
relationship made with only certain aspects of Dworkin’s theory rather than his
theory of judicial interpretation and his overarching thesis. A lack of structure to
answers and lacking in confidence of taking a position, i.e. is there agreement or
disagreement that the set case shows Dworkin’s theory in action?
A good answer to this question would…
directly answer the question explaining and evidencing that the way the set case
was resolved is in keeping with Dworkin’s theory (or not). Relating the legal points
with the social and moral context of the facts of the case – ultra orthodox,
transgender, equality in terms of sexuality and in terms of religious beliefs should all
be set out and explored in the context of Dworkin’s theory. Students could argue,
for example, that Dworkin’s theory is clearly seen in this judgment. Other theorists’
opinions on Dworkin’s theory or a contrasting theory could be used. It could be
argued Dworkin’s theory does not assist at all, or that it does and that is why, it
could be argued, the case was either rightly or wrongly decided.
Poor answers to this question…
involved repetition of the facts and the decision made in the set case and then set
out a short summary of Dworkin’s theory. Sometimes these would be inaccurately
explained, with little or no interconnection between them. Others may have simply
described the case with a brief mention of Dworkin’s name or vice versa.
Question 2
‘Feminist legal theories cannot assist our evaluation of the set case.’
Discuss.
General remarks
As the set case relates to a transgender woman, sexuality, fatherhood, freedom of
religion, students need to explicitly show how feminist legal theories assist (or not)
in evaluating and analysing the set case. As the overarching themes could be
condensed into equality and freedom, students could set out what feminist legal
theories seek to do – highlight law’s upholding of patriarchy in some sense and thus
oppress or at least reduce women’s freedom or autonomy. Yet certain feminist legal
theory shows law’s potential to be used as a tool to dismantle this. How to address
a variety of standpoints? Is there a conflict between freedom and equality for the
father and that of the mother? Is there a conflict between individual and community
rights? What about freedom of religion and freedom and equality of sexuality?
These are not easy issues to resolve. However, students need to highlight that
these are issues that feminists regularly grapple with in their engagement with law.
There are many ways to answer this question well and there was much scope for
students to demonstrate clever usage of materials and arguments relating to these
themes.
As always, in introductions, it was open to students to set out how they approached
the question and to clearly set out the structure they used to answer it. Some
students set out briefly the different forms of feminism then focused more
extensively on liberal feminism, allowing free choice in a more equal world and how
this could be related to the facts and reasoning in the case of the father. Radical
feminism and ethic of care feminism were referenced as relating to the arguable
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voicelessness of the mother in this case and society’s apparent need for binary
choices of sex/gender at all.
The set case and some other case law referred to within its judgment. The purpose
of the exercise is not a case review. Any of the materials relevant from the chapter
on feminist legal theory in the module guide.
Common errors
As is often the situation when answering feminist questions in general in
jurisprudence, some students did not demonstrate a rigorous enough approach to
the nuances within feminist legal theories or directly relate these to interlink the
theories to the set case. There was a tendency to be too general in describing
different types of feminisms without adequate analysis or any attempt to link these
to all of the actors involved in the set case, and the ‘big themes’ of equality, power,
freedom, individual rights and the community, religious or otherwise.
explain that this is a complex case with many issues and rights that are not easily
reconciled. They would argue that feminist legal theories relate to a variety of areas
of law and life which concern power, freedom and law’s regulation of private lives,
and how these are applied when a minority community may not necessarily conform
to the traditional standards of the majority of the population. They would appreciate
the subtlety of the issues involved in answering the question well. Good answers
also covered the role law plays in enabling or protecting any rights, and balancing of
these, and whether there is agreement or not that the set case was correctly
decided.
provided an outline of the facts of the case with a paragraph about feminism in
somewhat general terms without clear focus on the question asked.
Question 3
In what ways can it be argued that the set case reflects liberal principles of
equality and the uniqueness of persons?
General remarks
Many students provided very strong answers to this question, which was popular.
However, some examiners reported evidence of stock, template answers with many
being very similar and repeatedly containing references to materials not in the
module guide. Students should set out a position in their clearly explained
introduction to any answer. For example, does the case demonstrate the Court
representing liberal principles of equality (and equality for whom) and the
uniqueness of each person (all persons involved in the case or the father)? This
needs to be fully argued with supporting materials throughout with coherent
evaluation of all the relevant issues.
The question sought to enable students to convey their knowledge of theory relating
to liberalism and its principles of equality –with equality of outcome, opportunities,
moral worth explained. What does a person being unique actually mean? In
particular, the work of J.S. Mill, the debate between H.L.A. Hart and P. Devlin,
public and private morality, and what is the ‘law’s business’ ought to be referenced.
The relationship between intimate personal choices – does this apply more to the
father or to the mother or to the religious community? What about the children’s
views? Bringing in the majority of society’s norms and expectations and the role of
law in regulating people’s behaviour could be analysed to set out a rigorous answer
to this question.
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Law cases, reports and other references the examiners would expect you to
use
The set case and, to a certain extent, related case law referred to in the judgment
needed to be explained. The purpose of the exercise is not a case review. Sections
on liberty and equality in Chapter 12 of the module guide were particularly relevant.
All need to be related to the Court of Appeal’s reasoning.
Common errors
Repetitive use of memorised template answers on all things to do with liberalism.
Failure to think reflectively and knowledgeably for oneself.
contain a well-written, flowing answer with a clear introduction and structure with
evidence for the position taken throughout. (See the example extracted below.)
References could be made to other relevant parts of the module guide including
Raz’s and Dworkin’s liberal theories of freedom and equality and the role of law in
our free choices/free will; Bentham’s theory of utilitarianism, and certain aspects of
feminism but always relating the works to the case and the question asked and
avoiding substantial duplication with other answers.
failed to engage with the case and simply repeated some theory in a basic form.
Alternatively, they set out the facts of the case, sometimes inaccurately or very
briefly with no or very little reference to theory.
Student extract
According to John Stuart Mill, the transgender father is free to do as he
wishes to his own body, mind and having direct contact with his children as
long as he harms no others. He is at liberty to make his own decision since
his body and mind is sovereign, the courts should only intervene in order to
protect the society…
Comments on extract
This essay obtained a First. As can be seen from this short extract, it directly related
the theory on liberal principles to the set case and its issues. It was written clearly
with strong use of primary and secondary sources.
PART B
Question 4
You are NOT permitted to answer this question if you answer Question 1.
To what extent does Dworkin’s interpretive theory of law provide a
satisfactory explanation of the way judges make their judicial decisions?
General remarks
Students were not permitted to answer this question if they answered Q1. The
question required students to critically assess Ronald Dworkin’s theory in relation to
the realistic and practical requirements of every day reasoning of judges.
Analysis of Dworkin’s critique of Hart’s rules, what judges do, how they use
discretion is required. An examination of what Dworkin says judges do in ‘hard
cases’ is needed. Further analysis of Dworkin’s theory of ‘fit’, ‘integrity’ and law as
an interpretive theory more generally, through the use of Hercules, the ideal judge,
and how law is like literature were required. Students needed to evaluate how
realistic this is in terms of judicial reasoning. They could contrast it to Hart’s legal
positivism and Dworkin’s critique in ‘hard cases’.
5
Dworkin’s Taking rights seriously (relevant chapters on ‘The model of rules’); and
other Dworkin literature such as Law’s empire; Hart’s Concept of law and all
resources in the relevant chapters in the module guide.
Common errors
Telling us what Dworkin’s legal theory is in general terms or having only a focus on
one aspect of it, rather than on his interpretive theory of law and not adequately
explaining how this relates to judges’ reasoning in cases.
rationally, clearly and eloquently explain and assess in the student’s own voice in a
structured manner Dworkin’s interpretive theory. Good use of all primary source
material from Dworkin and his critics was evidenced in stronger answers.
Answers could explore how Dworkin’s theory could potentially be seen as an
improvement on positivism or argue that Hart’s theory/positivism (or another theory)
is to be preferred as explaining the way judges made their decisions.
provided a pre-prepared answer, including, for example, Dworkin contrasted to
Hart. Students needed to engage with all relevant materials including secondary
source material. Particularly poor answers set out a short summary of Dworkin’s
theory, sometimes inaccurately explained.
Question 5
‘Feminist legal theories do not assist our analysis or critique of law. Further,
they do not offer any alternative solutions to law’s problems.’
Discuss.
General remarks
Students were not permitted to answer this question and Q2. Students needed to
clarify and define what feminist legal theories (FLT) are. They could argue that FLT
are effective and have worth in criticising the structure of law. Choices could be
made of a particular type of feminist legal theory that is more effective (NB you do
not need to personally believe this, you are arguing a position in an essay). It could
then be argued that this type of theory feminism in law does provide solutions and
other do not or why one is good and the others are not, etc. However, a number of
feminists working in law disagree about legal solutions and law reform and its
consequences. Therefore, are the solutions coherent?
There are many ways to approach answering this question and as long as students
have a clear introduction explaining this, that is acceptable. Examples of current
affairs and activist work could be utilised. In any answer, engagement was required
with different types of feminist legal theory, their relationship with existing law, legal
theory and the regulation of behaviour: bringing into the discussion law’s power,
authority, the way it ignores or fails to address the concerns of oppression,
dominance, power, patriarchy and the actual lives of women and girls globally; and
the problems with the structure of law that sustain this dominance, etc., all
according to many feminists working in law.
Any of the relevant resources from the feminist legal theory chapter in the module
guide. Links can be made to any other theorists – for example, Dworkin, Raz, as
long as there is no substantive overlap in the exam paper answers of that student.
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Common errors
Failure to engage with the materials other than mechanically describing different
feminist theories or talking too generally about current affairs.
consider in depth the relationship between liberal law’s claim to be neutral, objective
and impartial, and how certain feminists, for example, radicals like MacKinnon
argue that when law does this, it is most male. Answers could also have analysed
MacKinnon’s comparison between sexism and patriarchy with work and Marxism;
with male power in the workplace, the silencing of women’s complaints and voices
when they spoke up concerning harassment in the past. Examples could be brought
in of non-disclosure agreements and the way women are arguably treated in
different contexts: for example in a hostess situation compared to in a legal
meeting. Can the law address the problems women face on a day-to-day basis
globally with ‘simple’ legal solutions that can somehow fit all or are local, national,
regional and culturally specific solutions better? Best answers took a position at the
outset and tried to consistently and coherently argue it throughout their answer
backed up by the many authorities referred to in the module guide. Examples were
also provided in blogs available on the VLE and reference could be made to these,
as well as relevant examples from current affairs, in a legally rigorous manner.
listed different feminist theories, sometimes inaccurately with incorrect attribution
and failed to focus on answering the question asked.
Question 6
Critically evaluate theories of liberalism, liberal equality and the uniqueness
of persons.
General remarks
This was not commonly answered. This was mainly because Q3 was very popular
and students were not permitted by the rubric to answer both. Those who did
answer it set out generally clear answers. There is much coverage similar to that
relating to Q3 above. The question sought to enable students to convey their
knowledge of theory relating to liberalism, liberty and equality and individual
autonomy. In particular, the work of J.S. Mill, the debate between Devlin and Hart,
public and private morality, and what is the ‘law’s business’ and how that relates to
liberalism and the uniqueness of persons ought to be referenced. Examples from
the Wolfenden committee report could be used. Students are encouraged to use
examples from a variety of jurisdictions and case law and legal policy. The
relationship between personal choices and society’s norms and expectations was
required. The relationship between the individual and their unique identity,
compared to the group, community or societal identity enriched answers.
Law cases, reports and other references the examiners would expect you to
use
Sections on liberty and equality in Chapter 12 of the module guide were particularly
relevant and all of the materials referred to within this.
Common errors
Essays that lacked originality and gave examiners the impression that students had
memorised these before instead of thinking reflectively and knowledgeably about
the actual question asked which is required.
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be coherent and intelligent, focused on answering the specific question, drawing on
Mill, utilitarianism, free choices, autonomy. As always, they would be written with a
clear introduction and structure and excellent support for the points made.
References being made to other relevant parts of the module guide including Raz
and Dworkin on their liberal theories of freedom and equality and the role of law in
our free choices/free will; Bentham’s theory of utilitarianism, and certain aspects of
feminism but always relating these to the question asked.
simply repeated some theory in a basic form or failed to refer to the question.
Question 7
‘If laws aim at the destruction of their subjects, or if they create obstacles to
their flourishing, they cannot be laws.’
Discuss with reference to the classical natural law tradition.
General remarks
Not many students answered this question. The question required an assessment
of the classical natural law tradition: in terms of substantive content of law and how
it connects, in that tradition, to any idea of human flourishing. We needed evidence
of a link, connection and assessment of what the latter actually is or means. How
might human flourishing connect to human reason? How does it link to the common
good? Evaluation of Aquinas and his modern-day advocate in Finnis was needed.
This includes the importance of the value of knowledge and how Finnis uses it.
Fuller’s eight desiderata and the Hart/Fuller debate could be referenced and
explained in connection to the specific question asked.
An engagement with an assessment of the commonly articulated criticism that
classical natural law is practically irrelevant or unrealistic was required. Positivists’ –
and other theorists’ – critiques of this tradition were required and how exactly the
law is defined by theorists working in these fields. Is human survival too narrow? Is
human flourishing too wide?
All relevant materials from the module guide chapters on natural law and related
materials.
Common errors
Descriptive summaries of the connection between law and morality or a list of
Finnis’s values.
discuss and demonstrate in-depth knowledge of Aquinas’s and other classical
natural law theories, with use of Finnis and Fuller as related to the specific question
with a focus on human flourishing/well-being and its relationship to notions of the
common good, the purpose of law, legality and a legal system. An exposition of the
classical natural law tradition in this regard.
provided insufficient knowledge of the basics of classical natural law with little, if
any, analysis or focus on the question or completely misidentified the question.
Question 8
‘Marx was wrong to set out a future utopia in which there is no law. Any
society, even one with no scarcity of resources, needs law.’
Discuss.
8
General remarks
This question required students to relate their knowledge of Marx and Marxist
analysis of the law. Contemporary examples of societies and laws could be
connected to the question: for example, debates concerning liberal democracies; so
called ‘elites’ and ‘the establishment’; globalisation; arguments of neo-liberalism; the
global financial crisis and austerity programmes; the majority decision in 2016 for
the UK to leave the EU; US politics, particularly after the election of President
Trump, and any number of more specific national examples, which students could
use but always relating them to the theory relevant to the question. As a statement,
students should set out in the introduction which position they take but identify all
sides of the arguments: show why one is more convincing than another, backed
with evidence. Focus is on the idealism within Marx and Marxism. What does the
reference to ‘future utopia’ mean? There was evidence of real engagement with the
materials and with ideas, reflection and passion, which was good to see.
The work of Marx and Engels; all the relevant materials in the module guide.
Common errors
Sometimes, there was a tendency to be too general or broad-brush: providing
general accounts of Marxist theory and Marx’s theory of history, or on world politics
and little on the theory, with scant focus on the question.
be clear and balanced, backed by evidence, with students setting out the
arguments on all sides and clearly explaining the relevant theory driven by their
position. This requires application of the primary and secondary materials.
were too general and written in a style than lacked legal rigour: stating opinions as
facts and failing to substantiate arguments with evidence from credible sources.
Question 9
‘Law cannot survive if it is just a mere convention with officials merely
imitating other officials. A moral attitude is necessary.’
Discuss with reference to Hart’s internal point of view.
General remarks
Examiners did not want an overview of Hart’s theory. Unfortunately, they commonly
read this. Instead, any answers require subtlety of analysis and a rational response
to the focused question. The focus is on the role of officials and the internal point of
view in Hart’s theory. Students do need to convey their understanding and
knowledge of Hart’s theory in general as setting the context to their specific answer
and then more in depth analysis of what he means by officials and internal point of
view. There can be some explanation of the distinction between primary and
secondary rules and his ‘minimum content of natural law’. Dworkin and other critics’
views are needed.
The chapters on Hart’s theory and related materials in the module guide.
Common errors
There were quite a few answers that set out Hart’s general theory with a small
section on officials with little or no engagement with the question and necessary
analysis.
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explore possible weaknesses of Hart’s analysis of the role of officials. Is it relevant
how legal systems operate or are conceptualised? Students introduced
comparisons with other positivists, such as Kelsen and Raz.
set out Hart’s general theory with a small section on officials, which was inaccurate
or failed to show coherence to answer the question.
Question 10
‘The foundation of a theory of law has to be an account of how law guides
practical reason. That is what Raz provides.’
Discuss.
General remarks
The question required students to focus on a specific question. The focus is on
Raz’s hard positivist theory and his theory of reasoning. The essay needed to
explain Raz’s theory in general, the relationship between his theory and his
conception of authority, and the importance of rationality in his work. Students also
needed to address the specific statement and could draw on other theorists to
argue against this proposition if they wished.
Chapter 8 of the module guide chapter and all relevant materials.
Common errors
There was a tendency to present a very general answer descriptively explaining the
main elements of Raz’s theory.
demonstrate a good understanding of Raz’s theory of practical reasoning and its
relationship to law and legality, our individual free choices and being told or
commanded to do something by law.
provided some outlines to Raz’s theory at a very descriptive level. They did not
address all necessary elements of the specific question.
Student extract
…In this way, Raz’s theory overcomes the paradox of authority set out by the
philosophical anarchists. This is because, when an authority tells us what to
do, it is likely to make a practical difference to our behaviour, compared to
our behaviour when we rely on our own balance of reasons.
Therefore….Moreover, James Penner views that…
Comments on extract
This essay was strongly answered and achieved a mid-First. It showed a clear
engagement with the question asked. It had a strong voice throughout with the
position taken being backed up by primary and secondary materials as is shown in
the extract.
Question 11
‘Kelsen’s Basic Norm is a mere theoretical curiosity. It offers little assistance
in confronting constitutional change.’
Discuss.
10
General remarks
Students needed to explain Kelsen’s theory but then focus on the specific question
which relates to the Grundnorm understanding its background as a presupposition
within his pure theory. Does his theory aid us when there is constitutional change?
Many students answered this quite well with reference to the cases mentioned in
the module guide. Students needed to take a position at the outset: do they agree
or disagree? Then in the main body of their essay, explain the approach they take.
Accurate depiction of Kelsen’s pure theory, what it means to call it ‘pure’, the
Grundnorm, and the continental philosophical tradition rather than Anglo-American,
how this relates to changes in constitutions ought to be presented.
The module guide on Kelsen’s theory with the focus on his work as a primary
source. Students needed to avoid any substantial overlap with other questions
where they may have analysed Hart or Dworkin.
Common errors
Explaining the components of Kelsen’s theory in a descriptive and mechanical way.
explain the continental Kantian tradition and heritage to Kelsen’s work. They would
explore a tension between validity/normativity and effectiveness in Kelsen’s work.
There would be engagement with his aim to establish a pure theory of law as self-
contained, independent from social practice and morality, and then reference to the
place of efficacy in maintaining law’s existence. Good answers accurately analysed
Paulson and Raz on Kelsen’s position and contained clear exposition of relevant
cases citing Kelsen’s theory. They also took a position of agreement or
disagreement from the outset and followed that up in analysis throughout.
set out the basic elements of Kelsen’s theory in a superficial way.
Question 12
‘Fuller offers not a theory of law but a theory of the rule of law.’
Discuss.
General remarks
This question focuses on the modern natural rule of law theory of Lon Fuller. It
requires analysis of Fuller’s eight desiderata. Examiners required evidence beyond
a descriptive account of Fuller’s theory. The Hart/Fuller debate needed to be
analysed but with the focus on any ideas of ‘a theory of the rule of law’ and
therefore what ‘rule of law’ actually means in this context, specifically focusing in the
main on Fuller. Students needed to explicitly address the focused question, by
reference to all the relevant materials in a coherent well-structured manner. In
general, this question was rarely answered but some who did so, did it well.
Some parts of Chapter 4 of the module guide and that in Hart’s defences against
natural law in the module guide and all related materials.
Common errors
Some students provided a broad overview of Fuller’s theory and some criticisms
with reference to the Nazi regime and the Hart–Fuller debate in a descriptive way.
present a full exposition of Fuller’s theory, with Hart’s criticisms and examples used.
Analysis of Fuller’s response was also important. The relationship between
good/just and bad/unjust regimes that may be able to say they respect the eight
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principles of legality needs explaining. Explanation of legality and rule of law and
the procedural form of this type of natural law will be set out. Answers would
address the criticisms made of Fuller and critically evaluate the issues. Some
awareness of Fuller’s subtlety was welcomed: for example, by referring to his
allowance for considerable scope in terms of how the system conforms to the eight
principles, and that it was only when there was manifest failure in one of them that
there was no legality.
listed the principles with little, if any, analysis or focus on the question.
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LA3005 Jurisprudence and legal theory – Zone B

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