Jurisprudence - the morality, theory and philosophy of law

Date: Thursday 8th September 2022

 
Chapter 1 of Understanding Jurisprudence Book review & notes
 
Essentially Jurisprudence = legal theory & legal philosophy
 
Descriptive theory
 What is the law?
 Why?
 
Normative Theory
 Values
 
Point of Legal Theory
 
Jurisprudence Definitions:
1. Involves the study of general theoretical questions about the nature of laws
and legal systems, about the relationship of law to justice and morality and
about the social nature of law (Michael Freeman)
2. Jurisprudence explores the concept of law and its role in society. It elucidates
its meaning and its relation to the universal questions of justice, rights, and
morality. And it analyzes the nature and purpose of our legal system, and its
practice by courts, lawyers and judges.
 
Key Relationships explored in Jurisprudence
1. Law and morality
2. Law and justice
3. Law and race
4. Law and Gender
 
Recurring Questions
1. What is law?
2. Is there a duty to obey the law?
3. What makes a law valid?
4. How are cases being decided?
5. What is the duty of a judge?
 

Social problems that implicate jurisprudence

 
 Slavery
 Capital punishment
 Legal status of married women and illegitimate children
 Abortion
  Corporal punishment at school
 Euthanasia
 Same sex marriage and adoption
 Assisted reproductive technologies
 School codes re. hair etc.
 
 

Date: Tuesday 13th September 2022

 
SOME CASES WITH JURISPRUDENTIAL PROBLEMS
 
 1. Plessy v. Ferguson (USA): 'separate but equal' doctrine re challenge to racial
segregation laws which were upheld as constitutional so long as the facilities
for each race were equal in quality
 
2. Donoghue v. Stevenson (UK) Donoghue v Stevenson: a landmark HL case
which extended the boundaries of torts and contract law; completely upending
the principles of privity of contract and the traditional conception of the torts of
negligence.
 
 
3. Nuremberg trials (of leading Nazi war criminals, lawyers, judges): worked from
fundamentally Austinian positivist prepositions that the validity of law comes
from its creation by the sovereign and that morality has no bearing on the
substance of the law.
(Austin's 'command theory' and 'separability' thesis).
 
4. Madzimbamuto v. Lardner-Burke (UK) PC decision emanating from a case
brought by Stella Madzimbamuto challenging the detention of her husband by
the government of Rhodesia.
The case raised the issue of the legality of the Rhodesia's unilateral declaration
of independence in 1965 by extension a number of important constitutional
issues. (Critical assessment of the decision of the pre-revolutionary judges to
remain in office, legal continuity/discontinuity and what is law)
 
 
The Human Rights Compliance Test
 (1) The starting point is the rebuttable presumption of constitutionality, but this
is primarily a rule of statutory construction that requires legislation so far as
possible to be construed harmoniously with the Constitution; it is not a
significant factor when the right being adjudicated depends on a
proportionality analysis.
 (2) Second, whether the law or action prima facie interferes with the
expressed right based on a textual analysis of the right and applying a liberal
and generous construction to the Constitution to give effect to the rights.
 Third, whether the law or action, even if it constitutes an interference, may be
justified as being
 "reasonably required" for the protection of any of the stated private rights or
public policy objectives, which requires that the law is rationally connected to
that objective and is not arbitrary, unfair or based on irrational considerations.
This is required to be established by the State.
 (4) Fourth, whether the law or measure, even if reasonably required, can be
established as being not justifiable in a democratic society. This requires an
application of the proportionality test, and an examination of: whether the
legislative objective justifies limiting a fundamental right, whether the
measures are designed to meet that objective, whether the approach
guaranteed to cause minimal impairment to the right is used, and whether in
all the circumstances a fair balance has been struck between the rights of the
individual and rights of the community. The onus is officially on the
complainant/plaintiff to establish this "negative", although it is clear that parts
 of the test are objective and overlap with the test at paragraph (3) above
(which is part of the State's burden).
 

Date: Thursday 15th September 2022

 
Natural Law Theory
 Key theories
 
1. Dualism/ dichotomy in law (natural law and positive/human law)
2. Universal & Immutable
3. Natural law is higher law (i.e it trumps/overrules positive law)
4. Natural law is discoverable by reason. It is in accordance with nature.
 
Ancient Greece & Rome
 Plato (idealism, theory of forms)
 Aristotle (teleology & the concept of justice)
 Cicero (De República)
 
 

Date: Tuesday 20th September 2022

Natural Law
The role that Plato, Aristotle and Cicero played in developing the ideas that
ultimately influenced/ formed the natural law theories.
 
 
CLASSICAL ORIGINS OF NATURAL LAW
THEORY: THOMAS AQUINAS
• Influenced by Aristotle's philosophy. Used his writing and methodological approach
to reinforce the foundations of Christian religion.
• A Christian version of natural law theory. Provided the linkage between Christian
doctrine and the exercise of secular power. Reconciled Christian and secular
authority.
• Retains Aristotle's idea of man as a rational being and having an end/ purpose
Summa Theologiae
 
"Law is a sort of rule and measure of acts, according to which one is induced to act
or restrained from act, for lex (law) is said to be from ligare (to bind) because obligat
(it binds) one to act. But the rule and measure of human acts is reason, which is the
first principle of human acts ... for it belongs to reason to order things to the end,
which the first principle of practical matters, according to the Philosopher." (i.e.
Aristotle)

 
 
 
Eternal Law
• The idea behind eternal law is that the universe is the creation of God, God is
rational by nature, so the universe is also rational.
• Eternal law controls both animate and inanimate objects and has 2 branches - the
laws of nature (science) and the laws of behaviour, the moral law that distinguishes
right and wrong conduct.
• Eternal law is not totally knowable as to know the eternal law is to know God's mind
and this is not possible. The human mind can only understand the eternal law by the
effects it has in the world.
 
• Laws of nature (science)
• Animate and inanimate beings are governed by this. They all obey these laws
without knowing them e.g procreation, looking for nutrition etc
• The laws of behaviour
• These are relevant only to beings with capacity for reason and moral judgment i.e.
to humans (as only humans are reasonable and capable of disobeying the eternal
law).
• Person cannot obey laws of behaviour without knowing what they are. Eternal
moral law has to be known.
• Humans have a share of the eternal reason that allows them to see what is good
and what is evil. In this way, human beings 'participate' in the eternal law.
• Humans' 'participation' in the eternal law is what is natural law.
• The rules of natural law point us towards good, towards what nature and God want
(hence their binding nature). ie the core of the Thomist interpretation of natural law is
the notion that good is done and evil avoided. It means that we must pursue some
specific goods and we know what those. goods, are life, knowledge, procreation,
society etc
Divine law
⁃ the specific moral rules set out in the scriptures. (necessary in part because human
reason by which natural law is understood is prone to error.
 
• 'Lex iniusta non est lex': unjust law is a 'corruption of law' and loses its power to
bind morally. One isn't necessarily always justified in disobeying it, as in some
special cases, in order to avoid 'scandal or civil disorder, obedience may still be
needed.
• Next: John Finnis and his restatement of natural law theory per Aquinas.
 
 

Date: Thursday 22nd September 2022

Unjust law as a 'corruption of law'
Lex iniusta non est lex - authority is not legitimate unless it is good and right.
 
Modern Natural Law Theory: Lon Fuller
 
Associated with secular natural law positions. 'Inner morality of law' key to its validity.

 A 'procedural' rather than substantive natural law approach.Hart v Fuller

Debate: Positivism and Fidelity to LawBased on discussion of the Grudge
informer's case.
 Hart disagrees with the court's decision. Felt that the German statute in
question was valid.Fuller, by contrast, agrees with the court's decision on the
basis that the Nazi 'law' deviated so far from morality, that it in fact failed to
qualify as law.
 
Introduces the notion of 'fidelity to law' arguing that a legal system must have certain
characteristics if it is to rely on the fidelity of a right-thinking person.
 Coherence
- Logic
- Order
'inner morality' of law
A system lacking this inner morality of law could not be considered a legal system
(and wouldn't generate fidelity to the law)
 
The same is true for legal systems i.e. legal systems achieve law to varying degrees
from excellence to abomination but at some point it doesn't make sense to call a law,
law because it fails law's purpose, viz., to facilitate social life.
The question at this point isn't whether the law is good or bad, but rather whether
there is law at all.
Fuller therefore does not regard the law of the 3rd Reich/Nazi Germany as law.
 
What are these essential procedural standards?
Proposes 8 qualities of excellence of the legal order which altogether constitute the
inner morality of law (King Rex's story - see story)
- Generality
 Promulgation (the act of putting law into effect)
 Non-retroactivity( the idea that laws do not apply retroactively)
 Clarity
 Non-contradiction
 Possibility of compliance
 Constancy
 Congruence(harmony) between declared rule and official action.
 A procedural natural law approach
 
 
COMMENTS
The word 'morality' carries ethical connotations yet Fuller's 'inner "morality" of law
has no such connotation. The term 'morality' seems to be a bit of a misnomer here
with us really just having a set of technical requirements for the legal system.
Hart for his part argued that these requirements aren't principles of morality but
rather 'rules of good legal craftsmanship'. Felt Fuller was confusing morality with
efficiency.
 
Consider whether the legal system under apartheid would qualify as a legal system
under Fuller's 'inner morality' test.
Fuller also distinguishes between the internal and external morality of law.
The external morality of law refers to the substantive content of legal rules. If this
content is patently unjust the legal system will fail to command the respect of the
community and must maintain itself by force.
He conceded that a law that complies with internal morality of law may still be unjust
e.g PRC law re limiting children.
But his focus in his writing is on the internal rather than the external morality of law
(which brings us back again to the question of whether he is really a natural lawyer).
 
 
JOHN FINNIS
Classical natural lawyer.
Follows Aristotle's and Aquinas' rationalist legal tradition.
The key notion in his theory is “practical reasonableness".
• Restatement of natural law theory. Expands on and clarifies Aristotle's and
Aquinas' approach.
Finnis' jurisprudence is based on the idea that there are human goods that can only
be secured through the institution of human law. So, law is created to promote
certain human goods.
Also states that there are requirements of practical reasonableness that only those
institutions of human law can satisfy. These requirements of practical
reasonableness consist of a set of basic methodological requirements which
distinguish sound from unsound thinking and which provide criteria for distinguishing
between acts that are reasonable and acts that are unreasonable.
Finnis' jurisprudence is based on the idea that there are human goods that can only
be secured through the institution of human law. So, law is created to promote
certain human goods
Human beings usually act to achieve their ends and those ends are necessarily
good.
Creates a catalogue of basic forms of human flourishing / basic forms of good, all of
which are equally fundamental.
Life (includes physical and mental health, corresponds to the drive for self-
preservation and procreation)
Knowledge (sought for its own sake; desire to avoid ignorance, the good is not the
result but rather the process of trying to find out)
 Play
 Aesthetic experience
 Friendship (sociability)
- Practical reasonableness (the skill of employing one's intelligence to decide
what to do, how to live and a skill of shaping one's own character)
- Religion
 Basic requirements of practical reasonableness:
- Practical reasonableness shapes one's participation in other basic goods (guides
your selection, means of attainment etc)
 A coherent life plan.
 No arbitrary preferences among values.
 No arbitrary preferences among persons.
 Detachment and commitment.
(Limited) relevance of consequences:
efficiency within
reason.
Respect for every basic value in every act.
The requirements of the common good.
Following one's conscience.
NATURAL LAW = 7 basic goods + basic requirements of practical reasonableness.
 
 
Date: Tuesday 27th September 2022
 
 
Date: Thursday 29th September 2022
Legal Positivism
 Attempts to identify key features of the legal system by study of the law in
force, of positive law or of legal rules which are active in the society.
 A legal positivist is someone who regards a law to be valid not by reference to
any higher law or moral requirements but by reason of nothing more than its
existence.
 For the legal positivist, the law as it is, should be studied separately from the
law as it ought to be (that is for other areas such as sociology, ethics etc).
 Developed as a jurisprudential school in the 19th century. Today we
distinguish between classical and modern legal positivist thinkers.
 
Core Ideas: Per Herbert Hart
1. Laws are commands of human beings.
2. No necessary connection between law and morals.
3. Legal analysis should be kept separate from religious, historical, ethical etc.
inquiries of law.
4. A legal system is a closed logical system.
5. Moral judgments about law cannot be established by rational argument,
evidence or proof.
 
In terms of laws as commands of human beings, the State occupies a special place
in positivist thought as the law maker and law giver.
 
Positivist theories generally only attribute the property of 'law' to those rules which
are derived from an appropriate law-making authority existing as a political or social
fact.
 
Morals can find their way into a legal system if and only if the legal system allows for
doing so (through a competent authority).
 
A law doesn't cease to be a law if it fails to meet some moral test which is not itself a
law.
 
They don't recognize the dualism of law typical of natural law. For the positivist, the
only true law is positive law and only that is of legal binding and enforceable nature.
 
Not hostile to religious, historical etc. enquiries, just relegates them to different areas
of knowledge to legal science
 
Various classifications, hierarchy of sources, rules of interpretation etc.
 
Ought does not stem from is. This separation makes the positive law clearer.
Community is better able to assess the value of laws
 
Nuremberg trials as the 'trial of legal positivism'. Is this a fair assessment?
 
Jeremy Bentham & John Austin
Method of the classical legal positivism
 
Scientific: based on close observation of empirical phenomena i.e. existing legal
rules
 
Focused: distinguishes carefully between what is and what is not law and therefore
is or is not within the provision of law and jurisprudence (is/ought issue)
 
Constructive: believes that improvements in law are possible through rational
application of knowledge gained through scientific observation.
 
Targets of classical legal positivists:
1. Tradition
2. Irrationality
3. Indeterminacy
4. Corruption of the lack system
I.e very much concerned with legal reform
 
Bentham
 
Is a typical product of the Enlightenment thinking and methodology.
Critique of common law:
1. Attempted to demystify the common law to expose what lies behind its
appearance (its
fictions,
disproportionate sanctions such as
capital punishment, over use of jargon etc).
2. For him law was a perplexing network of technical rules which served the
interests of lawyers, judges etc (who were usually corrupt).
 
Positivist definition of a law:
An assemblage of signs declarative of a volition conceived of and adopted by the
sovereign in a State concerning the conduct to be observed in a certain case by a
certain person or class of persons who in the case in question are or are supposed
to be subject to his power.