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Jurisprudence II LAW3086 2017 - last ever juris lecture! :'-(
Transcript of Jurisprudence II LAW3086 2017 - last ever juris lecture! :'-(
What is law?
Anti-Positivist Theories of law
Command Theories of law
Law as fact
Habit of Obedience
No place for normativity
Notion of a legal SYSTEM
Law as demystified fact
Chains of validity
What makes Kelsen's theory 'pure'?
System of Rules
Internal point of view
Rule of recognition
Primary and secondary rules
Non-central place of sanctions
Power-conferring and duty imposing
Law claims authority
Rules are not social facts or attitudes but exclusionary reasons for action only understood through understanding practical reasoning
Law-as-rules = no place for morality in determining validity of legal statements, only for filling in gaps
Hard v Soft
Rules cannot tell us the outcome of cases so cannot be a coherent theory of law
Legal outcomes depend of extra-legal factors. Law is not self-contained.
Anti-positivist and anti-realist
Legal outcomes are a question of moral interpretation, not an application of rules or simply extra legal factors.
LAW PROVIDES ANSWERS TO HARD CASES
Is this an accurate description of what judges are doing?
Law as integrity
Law is an interpretative practice whereby you seek to find the best moral answer in line with the political history of the legal community
Law as integrity
Right answer thesis
Responding to Dworkin
Classical natural law theory:
Law can only be understood as a reflection of moral needs. To the extent that it does not reflect these, it is not truly valid law
Modern natural law theory
We can only understand law's central case through an understanding of the moral importance of authority
A true understanding of law is based on an ideal legal system
Law as a communicating but self-contained and self-generating system which interacts with only social 'systems'
Law as normatively closed and self-contained
See links to Kelsen and hard positivism
Law as communicative system which lies between fact and validity
Legal 'validity' is a moral one because of law's communicative nature
In a modern society the law replaces shared morality
Law must be validated by the people (in some sense at least) to be valid.
Law cannot be understood in isolation.
An non-pure sociological theory of law
Understanding law's nature by understanding law's place in society
functional equivalents to law
Legal pluralism and
The sticking point of sanctions:
Hart: sanctions do not explain the obligatoriness of law...
BUT does this mean that law can be explained without sanctions?
Kelsen? Dworkin? Coercion seems present.
Can secondary rules even be explained without reference to sanctions?
Does law make this claim?
Does law claim anything?
Does it really claim authority? Why not JUSTICE? or the right to adjudicate?
What is the difference between law's claim and the claim of other social institutions?
The RULE OF RECOGNITION:
Social practice (of the judiciary) which contains the criteria of validity for law.
Q1: Is everything that judges do law?
Q2: What about the general attutide towards the law of the ordinary population?