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Jurisprudence
University of Mississippi School of Law
Nowlin, Jack Wade

JURISPRUDENCE

NOWLIN

SPRING 2012

INTRODUCTION

· Jurisprudence – philosophy of law, the study of legal theory. Main focus of law is justice.

· Three Main Schools of Law

o Natural Law

§ Law has a divine origin but can be attained by humans through reason

· Thus Obj. principles and not just human opinion.

· Principles are self-evident.

· Authority of law from these inherent moral truths, and thus God.

o Ex. Of British Gov’t no longer protecting these self-evident principles, thus lose their authority.

§ Man made laws should conform to this divine law, if not the laws are unjust and therefore invalid

§ Emphasis on objective principles of morality and justice (Moral Analysis)

§ Examples: Declaration of Independence, Blackstone, Jefferson, MLK

o Positive Law – (Aquinas) posited by human beings, but derived from NL if it is a just law. Derivation of NL thru:

§ Deduction – ex. Of homicide being wrong, destructive to 1st self-evident principles

§ Specification – ex. Of traffic laws, specification of certain rules to protect7 human, life, though can be specified in certain ways and still effective.

· Legal Positivists

o Reaction to natural law theory

o Law is Manmade – Austin, early English Legal Positivist.

o More concerned with the existence of law than the inherent justness or morality of the law

§ Empirical Analysis – focus on facts, empirical realities and not just morals (descriptive sociology)

§ Authority – does not come from God, factual or empirical, law gets authority from commands that are enforceable (issue of authority is thus force)

§ Ex. Of British Gov’t not protecting certain rights, British Gov’t overthrown not b/c lack of moral authority but b/c force used by Americans to overthrow old legal system and enforce new.

o Command Theory: laws are merely orders backed by threats (Austin)

§ Command – general order for populace to do something backed by threat or sanction.

o Hart is a modern legal positivists, more concerned with the empirical analysis than acceptance of the command theory

o Ex. Bentham, John Austin, Hart

· Legal Skeptics

o Laws are merely what courts say they are

§ Difference from legal positivists in that questions whether there are actual rules in the first place.

o Codes/statutes may have some predictive quality, but they are nothing more and judges can decide whatever they want.

§ Statutes not law – merely a guide to help judges make their decisions.

LEGAL POSITIVISTS: H.L.A. HART and THE CONCEPT OF LAW

· What Project Does Hart Believe He is Taking on? Preface

o Law à Coercion à Morality

o Book is an exercise into Descriptive Sociology

§ Focus on facts and empirical realities – law is what we see around us.

§ Empirical Factual Inquiry for clearer understanding of modern legal systems.

o Linguistic Analysis – conceptual clarification of words and different ways in which they can be used to give multiple meanings depending on context.

§ Words describe a characteristic, such as elephant or triangle. The definition of law has no such characteristic, no genus about the character of law within which the definition locates what it defines.

· No general well-understood category of which law is a member.

· All instances of what can be defined as triangles and elephants have common characteristics which are signified by the expression defined, not so with law.

§ A better understanding of concepts in words helps understand the social phenomenon

o Rules v. Habits

· Persistent Questions (Ch. 1)

o Hart will describe the central elements of the modern legal system; clarify the relationship between law and coercion, law and morality, and law and rules.

o Difference b/t law and morality is the predictability of punishment.

§ Law and relationship to moral obligation = NL

§ Law and relationship to legal obligation = LP

§ Difference b/t rules and habits = LS

· Can’t have definition of law that answers all these questions, b/c so many different aspects of law and linguistically “law” used in so many ways.

o Evidence of Confusion

§ Paradoxical questions such as “An unjust law is not a law,” yet if promulgated by the legislature most people would agree, definitely a law.

§ Same problems don’t arise for the study of medicine.

§ Hart wants to look at these statements and ideas and find out what motivates them, what is the insight behind these statements with the suspicion that this may be an attempt to describe the law with exaggerations as they look at different elements rather than the whole picture.

§ He is not referring to the areas of law with no confusion

o 3 Perennial issues which have motivated the questions

§ How does law differ from and how is it related to orders backed by Threats? Certain types of conduct are Obligatory – coercion (positivists): in what sense does the law tell us what to do and punish us.

· Gunman ex., you were obliged to do so, though you did not have an obligation.

§ How does legal obligation differ from, and how is it related to, moral obligation? Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual (NL Theory): morality or justice.

· If you have to do what is moral then you must follow law as law concerns what is moral. Overlap of content between what is moral and what is illegal.

§ What are Rules and to what extent is law an affair of rules? Do rules exist? Are there different kinds of rules? Difference between rules that impose duties and those that create legal relationships.

· Some rules refer to punishment, others to formation/creation (ex. Of contracts)

· Habit v. Rules. Confusion between the things we do as a rule and the things we do because of a rule. Is this a psychological feeling or a need to do something or just a habit?

o Ex. Of man taking off hat in church

o Moral Obligation (rules) and law (legal rules) – both have some type of sanction for a deviation from the designated behavior, both base on justice.

· Chapter 2: The Command Theory

o Basic Definition

§ Deals with the revolutionary and reactionary aspects of the legal skeptics and NL

· If the law is revolutionary, then people don’t have to follow

· If the law is reactionary, then people follow

· Reactionary implication to NL claim that English law is just and divine b/c it is law and from the sovereign, thus no such thing as unjust law.

· Austinians trying to create as thin a description of legal system as possible to encompass all legal systems. Need general orde

. Of something being outside strike zone, not meant to deter but merely to guide behavior.

· Power conferring rules as fragments of laws.

o They are the “if clause” to the antecedent clause. They are fragments of orders back by threats.

o Really directed towards officials and not to guide conduct of ordinary citizens.

o Hart’s rebuttal is that law not just for “the bad man,” but is a guide.

§ Hart assumes most people will obey the law, Austinian says w/o threat of force that is crazy talk.

§ Austinian says if take away sanction people may follow out of habit for a while but overtime disobey. Command theorists usu. Hobbesian in that views of human nature quite dismal.

o Hart’s Two Big Thoughts

§ Two kinds of rules: sanctions and nullities. Austin’s conceptual mistake in not acknowledging both, expressing nullity as a sanction.

· Hart feels what distinguishes modern legal systems from primitive are the power conferring rules.

§ Focus on sanctions is wrong. More fundamental view of law is guidance. Most rules are directed at how to play the game, not the punishment for breaking the rules.

· Austin focuses on sanctions w/o seeing the importance of guidance

· Hart focuses on guidance w/o recognizing importance of sanctions

· A certain percent of society uses as guidance, the other percent follows for fear of sanctions.

o Society has both types of people.

· Perhaps historical sanctions socialize people into following guidance.

o Range of Application

§ Austin’s view supposes that the sovereign doesn’t obey anyone. However, laws often self-binding, particularly for legislature.

· In Austinian view sovereign cannot impose law on self b/c only sovereign can enforce law, therefore merely the sovereign’s promise.

· Hart argues many laws created are self-binding. In many legal systems the sovereign has limits self placed or by 3rd party.

o Does sovereign allow these limits by the “promise?”

§ Austinians try to explain by saying sovereign is acting in 2 different capacities

· Official Capacity v. Private Capacity

· Hart says this an embarrassing legal fiction.

§ In democratic countries the people are the sovereigns- so do they place limits on themselves by electing legislators who pass laws?

o Modes of Origin

§ Legal system might recognize certain customs as law, though a custom isn’t created in such a way as to look like an order.

· If custom adopted by legislature to look like a law would be difficult to determine its origin as a command.

· Ex. Would be rules in British law that certain customs count as laws if the courts view those customs as reasonable.