JURISPRUDENCE

SAMPLE EXAM QUESTIONS

Information for Candidates:

• Three out of the five questions have to be answered, the three questions bear equal
marks
• Time: 2 hours

Please use in the real exam whole sentences in logical order (and not just bullet points like here)

1. In Chapter V of Hart’s The Concept of Law the author characterizes the basic elements of law
as following:

“It is true that the idea of a rule is by no means a simple one: ... if we are to
do justice to the complexity of a legal system, to discriminate between two
different though related types. Under rules of the one type, which may well
be considered the basic or primary type, human beings are required to do or
abstain from certain actions, whether they wish to or not. Rules of the other
type are in a sense parasitic upon or secondary to the first...”

How did Hart call the two types of rules? What is the difference between them? Do we have
both types in every legal order? Are there any sub-types of the secondary rules? What are the
reasons for having secondary rules? What are the characteristics of these rules? (You do not
need to compare Hart’s ideas with other authors’ theories.)

• primary and secondary rules

• legal system is a system of social rules: 1. to regulate the conduct of the members of society,
2. they stem from human social practices (not from God or from “reason” etc.)
• laws that impose duties or obligations on individuals are „primary rules”
• secondary rules (“parasitic upon or secondary to the first”): 1. to provide an authoritative
statement on the interpretation of primary rules (adjudication: certainty and efficiency), 2. to
allow legislators to make changes in the primary rules if the primary rules are found to be
defective or inadequate (rules of change, legislation – not static), 3. rule of recognition: what
are the (valid) laws and how can they be identified
• in primitive systems: only primary rules
• legal system = a union of primary and secondary rules
• rule of recognition: it can “neither be valid nor invalid” (Paris meter bar), its “existence is a
matter of fact” (so not a matter of morals!) to be seen from the practice of officials
• rule of recognition: luxury, not necessity (not in every legal system), it decides which rules are
valid (i.e. part of the legal system)

-1-
2. What are the main differences between natural law and legal positivism? What are the different
meanings of the word “legal positivism”? What is the difference between exclusive and
inclusive legal positivism? Can you name some natural lawyers and some legal positivists?

• positivism vs. natural law theories: about the relationship of law and morality
• (different meanings of “positivism” itself: 1. sociological positivism (Comte), 2. logical
positivism of the Vienna Circle (empiricism) (verification), 3. legal positivism (Hart, Kelsen))
• different meanings of legal positivism itself (H.L.A. Hart, Positivism and the Separation of
Law and Morals, Harvard Law Review 1958, 601-602): 1. The contention that laws are
commands of human beings. 2. The contention that there is no necessary connection between
law and morals or law as it is and as it ought to be. (separability thesis) 3. The contention that
the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be
distinguished from historical inquiries into the causes or origins of laws, from sociological
inquiries into the relation of law and other social phenomena, and from the criticism or
appraisal of law whether in terms of morals, social aims, “functions”, or otherwise. 4. The
contention that a legal system is a “closed logical system” in which correct legal decisions can
be deduced by logical means from predetermined legal rules without reference to social aims,
policies, moral standards (legal formalism). 5. The contention that moral judgments cannot be
established or defended, as statements of facts can, by rational argument, evidence, or proof.
• inclusive (or soft) positivism (incorporationism) [the test of legal validity can contain moral
elements in certain legal orders, but it is not necessary] vs. exclusive positivism [the test of
legal validity cannot contain any moral elements]
• (normative positivism [separation on moral grounds] vs. methodological positivism
[separation on epistemological/scientific/methodological grounds])

• Fuller: 1. the Nazi grudge-informer, 2. the speluncean case

• Hart-Fuller debate

• positivists: Bentham, Austin, Hart, Kelsen (and many others)

• natural lawyers: Finnis, Fuller, Radbruch (and many others)

3. Critically discuss the CLS movement.

• Legacy of Legal Realism: a. critique of legal formalism, b. indeterminacy and judicial

decision-making, c. problems of law as an autonomous discipline, e. values of social science,
f. criticism of economic neo-liberalism

• Definition and perception of C.L.S.: Critical legal studies first developed in the US and its aim
was to provide a fundamental critique of the nature and place of law in modern capitalist
society. Critical legal studies is therefore quintessentially political: a movement of the political
Left (often accused of anarchism and Marxism).
• One thing to note about CLS is the outrage that it has generated. Critical legal studies has been
criticized vociferously from various quarters in the United States, and particularly by those
who insist that it has no place in a law school.
• Whereas realism was a reaction against something we called ‘legal formalism’, C.L.S. might
be regarded as a reaction against something called ‘legal liberalism’. Disguising “law as
ideology”.

• Main topics:
• (1) Community versus the individual: a "fundamental contradiction" (Duncan Kennedy),
dependence on and integration into groups
• (2) Inadequacy of the Rule of Law: The concept of the rule of law is seen as controversial as it
represents a centrepiece of any liberal legal order.
• (3) Legal Education as perpetrating social injustice: This is related to the former problem and
it adds further tension to the relationship between ‘those citizens in power’ and ‘those who are
not’ generated by a capitalist society

-2-
 • most important “Crits”: Mark Tushnet, David Kennedy, Roberto Mangabeira Unger, Lewis
Kornhauser

4. Critically discuss Kelsen’s theory on the hierarchy of norms (Stufenbaulehre)? To which basic
questions does it give the answer? How does the hierarchy look like? (You do not need treat
its possible political or constitutional implications.)

• Stufenbaulehre (doctrine on the hierarchical structure of the legal order, or literally ‘step
structure doctrine’): Adolf Merkl (another member of the Vienna School of Legal Theory, i.e.
follower of the Pure Theory of Law)
• according to condition of validity, ‘chain of validity’ (Raz’s terminology)
• an individual norm (e.g. a judgment) is valid only because its validity can be derived from a
valid ordinance, which is, again, only valid because it corresponds to the statutes; and a statute
has its validity from the constitution; the constitution itself—if it was produced legally (i.e.
according to the law)—from the previous constitution, and so on until the historically first
constitution. The historically first constitution can be recognized by its illegal (i.e. unlawful)
way of production.
• Hypothetic basic norm – constitution (constitution in terms of positive law) – statutes –
ordinances – judicial decisions, administrative acts, private legal transactions (e.g. contracts) –
physical executive acts (acts of compulsion or coercive acts). The latter (i.e. coercive acts) are
not considered as part of the legal order, since do not comprise norms, only execution of a
norm (i.e. an ‘is’)
• implications and characteristics: 1. First, a high level of autonomy inherent in the legal order
that is obtained in the way that law regulates its own creation and validity (‘self-creation of
law’). 2. Second, every level of the hierarchy comprises creation and application of law at the
same time (except for the levels of the basic norm and the physical execution, since the former
means only legislation, while the latter means only application), i.e. all legal acts have a
double legal appearance. They are Janus-faced. Legal acts are thus, to a certain extent,
always objectively determined by law, but they depend also, to a certain degree, on the subject
of the law-creating/law-applying organ. This freedom of the law-creating/law-applying organ
becomes less and less on the way from the hypothetic basic norm to the physical coercive act,
as the acts become more and more concrete and individualised, but the freedom of decision
(even if less and less) still remains. The autonomous and heteronomous determinants are,
then, present in both creation and application of law at the same time. Therefore, an absolute
opposition of creation and application of law is inadequate, since they differ in degree but not
in kind. 3. Third, it has to be mentioned that the Stufenbaulehre explains more than do
traditional conceptions of the hierarchy of norms, as it explains not only the general norms but
also the individual acts (individual norms in the terminology of the Pure Theory of Law) like
judicial decisions and the physical executive acts. 4. Fourth, it is a new feature of the
Stufenbaulehre as opposed to previous conceptions of the hierarchy of norms, that it does not
only identify the hierarchy, but also gives criteria (‘test’) for its identification (‘the norm
which regulates the creation of the other norm is higher in the ranking’). 5. And lastly, its
most important feature (its virtue, according to some) is that it gives a dynamic approach to
the legal order instead of the static one (‘In what system do the norms exist?’), i.e. it answers
the question how norms are created.
• other hierarchies (i.e. not according to the condition of validity but e.g. according to
derogatory power or primacy in application)

5. Describe Dworkin’s theory of adjudication. What is the difference between rules and principles?
Who is Hercules? What is the role of the political morality of the community in the
interpretation?

• 1. law and fact are „found” with the help of each other (hermeneutic circle, step-by-step)
• 2. meaning is not arbitrary, but there is no pre-fixed “core” of meaning

-3-
• Dworkin: law as interpretation, law as literature: “chain novel” (not to be confused with law
and literature)
• (1) “one right answer” (one right answer to the case [no gaps], but not a prefixed meaning for
the words), “Hercules”
• There are three themes that may be found in Dworkin’s development of his right answer
thesis. First, this claim reflects our practice. Second, there are right answers to legal questions
for the simple reason that judges must reach a result in the questions placed before them.
Third, the best way to prove or disprove the existence of unique right answers in all legal
cases is to consider individual, difficult cases, and construct an argument that a particular
result is the correct one, or to argue that in this case there is no one answer better than the
alternatives.
• (2) constructive (interpreters make of it the best possible example) interpretation: it is creative,
but not arbitrary: “political morality of the community”
• (3) For Dworkin a legal system includes legal rules and legal principles. Legal principles are
moral propositions (of the “political morality of the community”) that are stated in or implied
by past official acts (e.g. statutes, judicial decisions and constitutional provisions). While rules
act in “all or nothing” way (if a rule applies, it is conclusive, it decides a case), principles have
different weights.
• Dworkin explains his analysis of rules and principles by considering a US case: Riggs v.
Palmer, New York: In Riggs, the plaintiffs, sought to invalidate the will of their father. The
defendant in the case was Palmer, grandson to the testator. The will gave small legacies to two
of the daughters (the plaintiffs), and the bulk of the estate to Palmer.
• Knowing that he was to be the recipient of his grandfather’s large estate, Elmer, fearing that
his grandfather might change the will, murdered his grandfather. The plaintiffs argued that by
allowing the will to be executed Elmer would be profiting from his crime. While a criminal
law existed to punish Elmer for the murder, there was no statute under either probate or
criminal law that invalidated his claim to the estate based on his role in the murder.
• but decision on the basis of the principle “no one should profit from his own wrong”, so
Palmer did not get the legacy
• This case shows us, according to Dworkin, that the law does not consist entirely of rules: it
also includes principles.

-4-