catallaxy files

catallaxy in technical exile

Jurisprudence for Dummies

with 19 comments

One of the privileges I enjoyed at law school was studying jurisprudence with Professor Suri Ratnapala. As someone with no background in political philosophy, his course was both a damn steep learning curve and very enlightening. It turns out I wasn’t the only one who felt this way. As I progressed through the subject, I began writing a personal guide to jurisprudence to help me clarify my thoughts. For a range of reasons, this guide finished up all around the law school, then all around several other law schools. I really knew it’d made the grade when Justice Heydon’s Associate wrote to me about it (and complimented my work on John Finnis).

Jurisprudence – and Suri’s inspired teaching – is the primary reason I write here at Catallaxy and support the LDP. I never had myself pegged out as someone who’d have these philosophical interests, and I freely concede I’m still learning. That said, I’ve learnt that quite a few law students and young lawyers are regular visitors/lurkers on Catallaxy, so I thought I’d make my guide available over the next few months in a series of bite-sized chunks for anyone who’s curious/interested.

I’ll kick off with my introduction, and the beginning of my section on positivism.

Introductory remarks

The person who wrote this guide once thought that the only philosophical question worth asking was ‘why is there air?’ The only appropriate response is, of course, ‘to blow up footballs/netballs/volleyballs’. Philosophy was for those who were in grave danger of being the most educated person in the dole queue.

I was not enamoured at the thought of spending an entire semester studying a subject I’d written off as slightly less interesting than naval fluff collecting. However, I also have academic pride. Before LAWS2008 reared its ugly head, I had a cumulative law GPA of 6.8. I figured that 4 in a compulsory subject wouldn’t be a good idea. I decided to study.

I actually liked quite a bit of ‘introduction to legal theory’. For someone who’d only heard of Aristotle because of his dodgy physics, and hadn’t heard of a single other thinker in the course, LAWS2008 was an introduction to an entire field of knowledge.

How good are these notes, and what do they cover?

I finished up topping the subject; this represents my study. That is, I read the set material in the ‘study brick’ and distilled notes from there. JFD is not a panacea for failure to do the necessary reading. I hope it simplifies complex ideas and serves as something of a crib, but you must do the reading first.

The modules I have included are: British positivists and their critics, Kelsen and the pure theory of law, Natural Law theory and Evolutionary legal theory.

I haven’t covered Hohfeld’s fundamental legal conceptions or feminist legal theory. I excluded Hohfeld because anyone with a scientific or commercial mind picks Hohfeld up quickly, and the course notes are very good. I also excluded feminist legal theory – not my cup of tea.

British positivists and their critics

Positivism is a ‘descriptive’ theory. That is, positivists design a framework that both defines and describes law. They then examine different legal systems to see whether they ‘fit’ the definition. If this sounds a bit artificial, remember that taxonomic classification is also descriptive, designed to define and name living creatures based on their relationships to each other. Positivism shares a strong kinship with the natural sciences.

Positivism emerged as a reaction against natural law, and is now the dominant modern legal theory (except in the USA). It developed in the early 19th Century in response to the assumptions of natural law.

Positivism has three underlying theses:

i) There is no necessary link between law and morality – it ‘shoves morality over to some other discipline’. Positivists do not argue that there is no link between law and morality; they just point out that laws don’t need to be moral in order to be laws.
ii) All law has identifiable human origins. Positivists examine legal realities – they categorise, define and distinguish. It is essentially a conservative theory, and ‘reduces thinking to neat filing systems’.
iii) All legal systems can be analysed as a ‘set of rules’.

At its best positivism is a good explanation of law in settled, stable societies. It becomes harder to maintain intellectual clarity when society is unsettled. Positivism is essentially descriptive, and can be used to describe what many people would consider ‘unjust’ legal systems, as long as those systems are internally consistent.

Bentham’s arguments against natural law
Jeremy Bentham was the first great positivist. His positivism was intimately linked to his main philosophical argument, that of utilitarianism. You’ve already heard one famous line of Bentham’s – in the High Court scene from The Castle: ‘the greatest good for the greatest number’. This one–liner represents the core of utilitarianism, which can be crudely majoritarian.

Bentham’s arguments:

Voluntarism: The essence of this is that all law is grounded in human will – not in obedience to universal morals.

There is no social contract. Bentham rejected the ‘social contract theory’ of Hobbes & Locke, who had both argued that there is an ‘underlying (implied) social contract between people’ as to how they should be governed. He called this ‘a pointless fiction’. Bentham was particularly scathing in his attacks on the ‘pretty stories’ of ‘man in the state of nature’ that both told.

Utilitarianism – greatest happiness of the greatest number – is a legitimate goal for law. This was Bentham’s entire justification for society. Pleasure for Bentham is caused by utility; he described a ‘calculus of utility’, which gives ‘the greatest good’.

Critique of oligarchy. In Bentham’s view an unrepresentative legislature fails to produce utilitarianism. Reform is required to make parliament more representative. Bentham strongly supported expanding the franchise. Bentham never pretended that we could all be happy all of the time, merely that the majority should be happy most of the time.

Critique of common law. Bentham attacked Blackstone’s idea that the common law was the pinnacle of reason – (in Blackstone’s view, incrementally developing towards perfection). For Bentham, the common law is a sinister product of the oligarchy. All law should be traceable to a legal sovereign that should explicitly create positive laws. He was therefore a major proponent of legal codification.

The legislature should take the initiative in making law – clear laws expressed in a coherent code.

Bentham was a major intellect: funny, thoughtful and clever. It is impossible not to be drawn to his ideas, especially on suffrage. People often forget this when they criticise positivists, forgetting that positivism was once a new and daring idea.

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Written by Admin

December 6, 2006 at 1:09 am

Posted in Uncategorized

19 Responses

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  1. Thank you.

    fatfingers

    December 6, 2006 at 1:24 am

  2. Back when it was time to make such decisions I never considered studying law and in fact it is only really in recent years that I have been able to imagine it being at all interesting as a career. So I enjoy you sharing your personal perspective SL.

    The primary person that led me to being a libertarian was Jude Wanniski. I corresponded with him through his online forum and occasionally in email for many years before his death. The strange thing is I don’t think he ever refered to himself as a libertarian. And if fact it’s quite possible wasn’t a libertarian at all. Along side my high school science teacher he was probably one of the characters that most heavily influenced my thinking. Which is perhaps a sad reflection on my university years.

    terjepetersen

    December 6, 2006 at 1:26 am

  3. Well I fluffed that formating trick.

    terjepetersen

    December 6, 2006 at 1:27 am

  4. Hang on, I’ll go in & try to fix it.

    skepticlawyer

    December 6, 2006 at 1:31 am

  5. Yes, thanks SL. Very interesting and your masteries never cease to amaze me. If rugby, drinking, nightclubbing and B&S ball attendance were all certified subjects, I too could have emerged with a 6.8 GPA overall.

    😦

    Your post reminded me of the Parish-posted conundrum of the Speluncean Explorers – which I tried valiantly to solve.

    C.L.

    December 6, 2006 at 2:40 am

  6. SkepticLawyer:
    Thanks for that …my interest in juriprudence was only peripheral and as it related to European history.

    CL [post 5]:
    Making thugby, drinking and nightclubbing subjects of study? Yes, that does sound civilized and progressive …. but then you spoilt that favourable image by implying that you may have been guilty of going to B&S balls. Never mind, your secret is safe with us.

    Graham Bell

    December 6, 2006 at 8:09 am

  7. I’m glad you are posting this SL.

    Steve Edney

    December 6, 2006 at 9:35 am

  8. This could be useful supplementary reading, it is the position of “critical dualism”. This is the position that:

    1. Our laws, rules and regulations cannot be based on “natural law” due to the problem of deriving “oughts” from any kind of facts.

    In that respect it agrees with positivism vs natural law theory.

    2. Our rules and regulations are manmade but not (at first) by conscious design. That probably comes to us from the Scottish Enghtenment via the Austrian School.

    3. We start with what we find around us, which is a concession to positivism, and we need to be prepared to make adjustments (at our risk!).

    http://sabhlokcity.blogspot.com/2006/07/condensed-open-society-chapter-5.html

    Rafe Champion

    December 6, 2006 at 10:27 am

  9. The Cambridge school used to say ‘It’s all in Marshall’.

    For Rafe, ‘It’s all in Popper’ 🙂

    Jason Soon

    December 6, 2006 at 10:33 am

  10. Sorry it wasn’t wine ‘n cheese nights put on by the Effete Tossers’ Association of Australasia, Graham. Country balls used to be a lot of fun before some of them became packaged saturnalias for riff raff.

    What gives with these gravatars? The default Gs are now huge.

    C.L.

    December 6, 2006 at 10:34 am

  11. Yes Jase, Rafe is always poppering in and out

    Bring Back CL's Blog

    December 6, 2006 at 11:19 am

  12. Oh good, it’s not just me. I think c8to is dropping a large hint that we should all go register a gravatar. They do add a nice touch. I especially like Steve’s piggy.

    skepticlawyer

    December 6, 2006 at 11:42 am

  13. c8to is dropping a large hint that we should all go register a gravatar

    for we technophobes (i don’t even have mobile) how is this done?

    Sinclair Davidson

    December 6, 2006 at 11:56 am

  14. No I think it’s a technical error.I’ll ask c8to to fix it up.

    Jason Soon

    December 6, 2006 at 11:58 am

  15. Click on the big ‘G’ (which will take you to the gravatar site) and follow the instructions. It helps if you have a picture of yourself, or a picture you like. FDB uses a pic of Thatcher, Steve Edwards has one of Pinochet (tongue firmy in cheek, I suspect), Mark B uses one of Gorby and so on. I use my husky; quite a few people use cats.

    skepticlawyer

    December 6, 2006 at 12:01 pm

  16. If you go to the Gravatar page, apparently they’re doing upgrades, so it’s likely to be nothing to do with us.

    skepticlawyer

    December 6, 2006 at 12:04 pm

  17. This blog needs less gravatas!!

    Bring Back CL's Blog

    December 6, 2006 at 12:54 pm

  18. CL [post 10]
    Nah. No objections at all to anyone having a good time while preventing outbreaks of sobriety, virginity, tranquility, wowserism or respectable behavior ….. it was probably that while working out bush, I could see my taxes at work on B&S nights helping poor, struggling, drought-striken rural ladies and gentlemen take showers with bottles of rum and wipe out replacable four-wheel-drives (replacable by the taxpayers, that is).

    Graham Bell

    December 6, 2006 at 11:37 pm

  19. It’s hard keeping track of all the things you appear to be bitter about, Graham, but thanks for the caricature. Who knows, maybe they were drinking a toast to the national wealth they created – which kept union-coddled whiners in leave-loadings and month-long vacations every year.

    C.L.

    December 7, 2006 at 2:59 am


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