LX3052 Terms in Jurisprudence – 2023-2024

Jurisprudence – Glossary of Common Terms

One of the reasons Jurisprudence (or law in general) may seem a difficult or less
accessible subject is the way in which terminology particular to the subject /discipline is
used. The following is a (not exhaustive) list of terms commonly found in writings on
jurisprudence.

Analytical – in legal philosophy and philosophy in general, this term is used to describe a
philosophical approach that avoids seeking to understand fundamental metaphysical
principles (for the meaning of ‘metaphysical’, see below) - such as the nature of a good
and evil, of freedom, and of the existence of God - and instead focuses on understanding
more specific and practical matters, for example, the day-to-day workings of a legal
system (as opposed to the origins of the legal system and the ethical principles implicit in
the need for law). For example, Herbert Hart’s (1907-1992 AD) positivism is in the
tradition of analytical philosophy, whereas John Finnis’ (1940-) natural law theory is not.

A priori (another term that means the same thing is ‘deductive’) – a priori is a Latin
expression that denotes a particular way or method of coming to knowledge about
something, and this method involves the statement of general principles or of knowledge
without regard to actual experience or observation. An a priori statement is one made as
a product purely of thought or reflection and that can then be applied to understanding
specific thing or practices to which it relates. Another way of putting it is ‘reasoning from
the general to the particular’.
An opposite term to a priori is empirical (see below).

Conceptual – this is usually used to refer to the definition of concepts and categories. A
conceptual analysis is analysis that seeks to define the basic nature of a system by
defining its characteristics, scope etc. Although it is sometimes more usually associated
with a priori reasoning, conceptual analysis can also relate to empirical reasoning (since,
for example, a suggested definition of a concept might be refined or modified with
reference to how the thing works in practice).

Corrective justice – one of two types of justice identified by the Greek philosopher
Aristotle (384 BC to 322 BC) (the other type of justice identified by Aristotle was
distributive justice, see below). Corrective justice is justice whereby a wrong committed
by one person against is rectified or put right – the legal system, then, is primarily
concerned with corrective justice.

Deductive – means the same thing as a priori (above).

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Descriptive – this refers to describing what actually is the case, and it is usually used in
contrast to the terms normative or evaluative (see below).

Distributive justice – one of two types of justice identified by the Greek philosopher
Aristotle (384 BC to 322 BC) (the other type of justice identified by Aristotle was
corrective justice, see above). Distributive justice means justice or fairness in the
allocation of society’s assets or wealth. It is usually thought that distributive justice is
primarily a matter for the political branch of government to determine (i.e. the legislature
and executive), rather than being one of the functions of the legal system.

Empirical (other terms that mean more or less the same thing are ‘inductive’ and ‘ a
posteriori’) – empirical refers to a way or method of coming to knowledge of something,
and it means derived from actual experience or factual observation. A theory that is
empirical will be based on how a thing works in practice, in order to come to conclusions
or general principles about the nature of it. Another way of putting is ‘reasoning from the
particular to the general’.
Empirical means the opposite of a priori (defined above). Because law is a social
phenomenon (i.e. it is not an abstraction, such as mathematical concepts are), it is
difficult for a theory of law to be wholly a priori in nature. The closest thing to an a
priori approach to theorizing about law on this course is probably Kelsen’s Pure Theory
of Law, see below. But even this has empirical aspects to it - specifically, for example,
Kelsen’s theory starts off with a rough general idea of what law is, and this stage of his
reasoning seems to depend on at least some degree of observation of how law functions
and the fact that it consists of a set of norms; and also in the latter part of his theory,
Kelsen says that the validity of the Grundnorm – see next, the basic norm presupposed
from the existence of other norms - depends on how effective it is, which arguably could
only be determined by observation of it in practice.

Ethical/Ethics– generally means the same thing as moral/morality, but is often used to
indicate the morality that exists in the context of professional duties, e.g. the moral duties
owed by a doctor to a patient, whereas the terms moral/morality are used to usually to
indicate morality relating to individuals.

Grundnorm – German for ‘basic norm’, this is the term used by Hans Kelsen in his Pure
Theory of Law to describe the basic norm in a system that is the basis of all other legal
norms. Kelsen presupposes the existence of such a norm from the fact that there is a set
of norms considered to be law. In effect (roughly speaking), Kelsen starts with the
observation that law consists of a set of norms, and then he works backwards to the
conclusion that there must be a basic norm that gives the other norms validity.

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Justice – generally means the same as fairness or morality, but it is usually used to mean
fairness at a societal, rather than individual level. For example, the question of how
society should allocate its resources is a matter of justice, whereas the term ‘morality’ is
not usually used in that context.

Metaphysical – this term relates to understanding or philosophizing about the

fundamental principles of existence, as opposed to more practical or specific day-to-day
matters.

Meta-ethical non-cognitivism – this means a belief that it is not possible to know what
is morally/ethically true or correct, that there is no objective morality that we can know
of.

Morphology – This is a technical term from linguistics that analyses the relationship
between elements of words. It is sometimes used in writing on Jurisprudence to convey
that there are different elements to legal concepts, i.e. more basic and more complex
elements within a particular concept or phenomenon, and that it is necessary to
understand the relationship between these elements.

Natural law – Natural law is one of two categories (the other being positivism) into
which most legal theories can be put and which concerns the relationship between law
and morality. Under natural law theory, there is some necessary relationship between
morality and the content of law. Within this category, however, there are many different
theories, some of which are not compatible with each other, i.e. there are many different
views about what exactly is the relationship between law and morality.
‘Classic’ natural law theory is a branch of ethics or moral philosophy and can be
roughly defined as the view that that there are certain basic or fundamental principles of
morality that can be taken as natural to the state of being human. These principles could
be regarded as facts of being human and they are in general terms unchanging and
universally applicable. There are different versions of this theory. The best known of the
last half century, at least in the Anglo-American world, is that developed by John Finnis.
In Finnis’ view, roughly put, principles of morality can be worked out by a process of
practical reasoning – Finnis considers the principles of practical reasoning to be facts or
self-evidently valid (in this sense they are ‘natural’). Historically, figures associated with
this classic tradition are, for example, Aristotle and St. Thomas Aquinas.
What has become known as Radbruch’s formula is usually associated with this
classic tradition of natural law philosophy – this formula states that an unjust or
sufficiently unjust law is not a law (it is also known by the Latin maxim lex injusta non
est lex). There is a debate, however, as to how necessary this formula is in natural law
thinking. For example, a classic natural lawyer arguably could say that a sufficiently
unjust law is still a law, but it does not have the character of a ‘proper’ law – saying the
latter avoids having to say that something that seems like a law is not actually a law at all

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(see, e.g. the discussion on this issue in J. Finnis, Natural Law and Natural Rights
(Oxford, 1979), pp. 363-369).
Beyond classic natural law theory, natural law can perhaps be best understood as
encompassing anything that is not positivism. For example, Ronald Dworkin could
loosely be described as a natural law theorist in so far as he argues that the content of law
necessarily reflects moral principles. But unlike, classic natural law theory, Dworkin is
not arguing that there is any set of timeless and universal principles of morality - he just
argues that whatever morality a society holds will be reflected in the law (although
Dworkin in some of his work does make arguments about the central importance of
equality - this is not central to his general theory of law, in so far as his theory is of
general application).
Another term that can be contrasted with natural law is relativism, which is the
view that morality is not unchanging but rather depends on the standards that are
accepted as moral at a given time in a particular society, i.e. the view that societies
develop their own standards of morality which may change as attitudes change. One
could accept a relativist view of morality and also accept Ronald Dworkin’s theory of
law, so Dworkin is best regarded as a natural law theorist only in loose the sense of being
non-positivistic (and not in the ‘classic’ sense outlined above).
Another distinct version of natural law theory is that of Lon Fuller. This again is
not within the classic natural law tradition, rather it is a ‘watered down’ and procedural
version of natural law. Finnis argues that all legal systems, in order to function
effectively, must have certain procedural characteristics (which he calls their ‘internal
morality’) - such as that the law is clearly stated and is ascertainable by the citizens and
that the officials within the system comply with the law, etc (there are eight principles in
total that Fuller identified).

Naturalism – this is a somewhat imprecise term, but broadly refers to the idea that there
is no metaphysical or spiritual reality. Naturalists tend to use an empirical method and
avoid a priori approaches to understanding or ideas.

Normative (another term that means more or less the same thing is ‘evaluative’) -
this refers to what ought to be or what should be, in contrast to what actually is (the term
used in relation to the latter is descriptive, i.e. which means the opposite of normative or
evaluative). Positivist theory aims to be largely descriptive (though Kelsen’s Pure Theory
of Law is distinctive in trying to explain and emphasise, without reference to morality,
the normative aspect of law).
The term ‘normativity of the law’ is sometimes used to refer to the duty to obey
the law. One of the criticisms sometimes made of positivist theory is that it does not fully
explain this duty.

Pluralism – the existence of a range of different and possibly conflicting belief systems
in society, e.g. the existence of many different religious and moral beliefs in single
society.

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Positivism – Positivism is one of two categories (the other being natural law, see above)
into which most legal theories can usually be put and which concerns the relationship
between law and morality. Broadly stated, positivism refers to those legal theories that
hold to the view that there is no necessary connection between law and morality. It can
be contrasted with natural law theory (see above).
To say that there is no necessary relationship between two things is not to say that
the two things cannot be connected or related, rather it is to say that they do not have to
be. Another way of putting this is that while there is no necessary relationship between
the two things, there may be contingent connections between them.

Within this broad category, there are many quite different theories. Herbert Hart’s book
The Concept of Law (1st ed., Oxford, 1961) is probably the most influential contribution
to positivist theory of the last century, at least in the Anglo-American world.
Other major positivist thinkers are, for example, historically, Thomas Hobbes
(social contract theory) (though in the preliminary part of his theory, Hobbes is
sometimes classed as a natural lawyer, because he argues that a social contract from
which an all-powerful sovereign emerges is necessary because of man’s primitive
original state in nature), John Austin (command theory), and Jeremy Bentham
(utilitarianism) – and more recently, Hans Kelsen (Pure Theory of Law) and Joseph Raz
(social thesis – and exclusive legal positivism – law authoritatively provides reasons for
action).
In more recent debate, a distinction is drawn between inclusive and exclusive legal
positivism. Inclusive legal positivism reflects the position outlined above, i.e. that while
there need not be a connection between morality and what purports to be law for the latter
to be considered law, there may in fact be a connection between morality and the content
of law (i.e. of legislation or judicial decisions). For example, in the common law when a
novel or hard case is before the courts, the judges may take into account moral
considerations, or when a rule emerges in constitutional law that human rights provisions
can be interpreted in light of prevailing moral attitudes/standards or so as to be consistent
with prevailing those moral attitudes/standards.
Exclusive legal positivism (most associated with Joseph Raz) is the view that no
reference should be made to morality in deciding what the law is and that the content of
law can be determined exclusively with reference to social sources. This view reflects
Raz’s general conceptions of law – that the law is made up of authoritative decisions or
rules that provide exclusionary reasons for acting, in other words, that the fact there is a
law removes the need for ordinary people to make up their own minds about what to do
or not to do, the law makes that decision for them (and thereby provides reasons for their
action, they do not need to consider the reasons themselves).
The difference between exclusive and inclusive legal positivism could be seen as
one of degree. Exclusive positivists argue that while new law may be made with regard to
morality, the existing law can be discovered by looking solely at social sources and that
no reference to morality needs to or should be made in doing so; inclusive positivists (e.g.
Hart in the second edition of Concept of Law) argue that a reference to moral

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considerations may become part of the rule of recognition and so may become part of
existing law.

Pragmatism – this refers to an approach or attitude to philosophical issues whereby an

attempt to generate comprehensive theory is avoided and instead pragmatists prefer to
look at the practical consequences and real-life effects of an idea in a more intuitive and
‘common sense’ way. Thus, a pragmatist will be concerned with the practical
significance of a theoretical debate or issue. Sometimes, the term pragmatism is misused
somewhat to indicate ‘the end justifies the means’.

Primary rules and secondary rules – Hart in his Concept of Law distinguished between
primary rules and secondary rules, both rules he said are usually found in legal systems.
Primary rules are substantive rules in specific areas of law, e.g. the rule in European law
that workers shall be permitted to travel freely between member states (freedom of
movement of workers). Secondary rules are those rules that govern the formation,
application, and amendment of primary rules – respectively, these rules are the rule of
recognition (how new laws are made), rules of adjudication (how disputes are settled),
and rules of change (how the law is changed).

Pure Theory of Law – the theory of the 20th century Austrian jurist Hans Kelsen in
which he proposes that law is a set of norms that is based on a basic norm or Grundnorm.
It is ‘pure’ in that Kelsen argued law did not have to be understood by reference to
morality or by empirical/ factual observation (although see under ‘empirical’ above, there
possibly is at least some empirical element in Kelsen’s theory).

Relativism – A relativist view of morality is the opposite to a natural law approach to

morality. Relativism denies that there are objective, timeless, universal set of moral
principle that are the same for all people. Instead, relativists believe that morality is a
matter of cultural preference and so may change across cultures and over time.

Rule of Law - this term is used loosely throughout the world to indicate certain
characteristics that are found in all developed legal systems (this is the term usually used
in the common law or Anglo-American family of law, the German term ‘Rechtstaat’ is
also used in other countries). It can be understood as a widely accepted, fundamental
ideology of law. The basic ideas that the concept conveys are equality of all people
before the law and government being subject to the law. Objectivity of the law is also
central to Rule of Law thinking. Lon Fuller’s ‘internal morality’ of law could be
considered an elaboration of the basic idea of the Rule of Law.

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Rule of Recognition – this Hart’s term for the basic rule in a legal system that
determines how rules of law are made.

Secularism – this term is used to describe the reduction, elimination or separation of

religious ideas from the life of a State or from society.

Separation of powers – This is the idea developed particularly in the 18 th century and
widely accepted since then that in order to ensure that a government does not become
tyrannical, there should be a separation of powers between three branches of government
- the legislative (parliament), executive (cabinet), and judicial branches (the courts) - and
that these should retain some independence from each other and respect each others’
roles. Examples of separation of powers principles are that the judiciary should be
independent (e.g. judges’ terms of office should not be at the whim of the government,
but should be for fixed terms, and that judges should only be removed for serious
misbehaviour, and not because the government does not like their decisions) and that
judges should in their decisions respect and uphold statutes enacted by parliament.
The idea is now most associated with the French writer Charles de Montesquieu
(1689-1755 AD) and a book he wrote called Esprit des Lois (‘Spirit of the Laws’) (1748)
and was part of a reaction against the concentration of power in absolute monarchies.

Social contract– this is an idea in political theory that society is or should be governed
according to a prior agreement between members of society. It is associated with theorists
such as Thomas Hobbes (1588-1679 AD) and John Rawls (1921-2002 AD), although
their ideas of it are very different. Hobbes argued that in order to free people from the
natural or barbaric state of existence before society or the State came into being, we
should imagine that society agreed (this agreement is the social contract) to give all
power to a single ruler or sovereign in order that society could put on an orderly and
stable footing. Rawls used the idea in a different way to suppose that there is or should be
an agreement in society of how to achieve justice.

Transcendental method – this is an idea associated with the philosopher Immanuel Kant
(1724-1804 AD). It is an approach or method of philosophizing that involves starting
from a basic, uncontested premise and seeking by logic and inference to demonstrate the
truth of a principle or proposition that is, on the face of it, more contested or debatable.
Examples of this from amongst the theories studied on the course are: Kelsen’s attempt to
reason, from the belief that law is a set of norms, that there must be a grundnorm; and
Rawls’ attempt to demonstrate principles of justice that would be true if a rational person
in the ‘original position’ (this means a position whereby a person would not know his or
her situation in society – such as his or her talents, assets, or class) were to reflect on
justice.