Jurisprudence Timothy Endicott
Since everything in jurisprudence (even stating the views of important writers) is controversial, I recommend that you use textbooks for revision purposes rather than as an introduction to the tutorial topics. For tutorial purposes it’s best to start with the readings on this list, which are difficult but are not too long. And before each tutorial I will either give you a class, or talk to you about how to get into the material.
You may find it useful at some point to look at some of the essays in Handbook of Jurisprudence and Legal Philosophy, Jules L.Coleman and Scott Shapiro, eds. (Oxford University Press, 2002).
H.L.A.Hart, The Concept of Law (2nd ed., 1994) CL
Essays on Bentham (1982) EB
Essays in Jurisprudence and Philosophy (1983) EJP
Ronald Dworkin, Taking Rights Seriously (1977) TRS
A Matter of Principle (1985) AMP
Law's Empire (1986) LE
Joseph Raz, The Authority of Law (1979) AL
Practical Reason and Norms (2nd ed., 1990) PRN
The Morality of Freedom (1986) MF
Ethics in the Public Domain (1994) EPD
Thomas Hobbes, Leviathan (Richard Tuck, ed., Cambridge, 1996) , ch. 26, at 183:
‘I define civil law in this manner. Civil law is to every subject those rules which the Commonwealth hath commanded him, by word, writing, or other sufficient sign of the will, to make use of for the distinction of right and wrong; that is to say, of that is contrary and what is not contrary to the rule.’
Jeremy Bentham, Of Laws in General (H. L. A. Hart, ed., Athlone, 1970) , 1:
‘A law may be defined as an assemblage of signs declarative of a volition conceived or 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: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question.”
*John Austin, The Province of Jurisprudence Determined (1861) (Lectures I, VI, and Hart’s Introduction to 1955 edition)
Jeremy Bentham, Of Laws in General (ch. 1, 2)
H.L.A.Hart, *CL (chapters 1-4)
EB Introduction and ch.5
EJP essay 1 “Definition and Theory in Jurisprudence” and essay 3 “Problems of Philosophy of Law”
Hart, ‘Legal Positivism and the Separation of Law and Morals’ (1958), 71 Harv.L.R. 598
Lon Fuller, ‘Positivism and Fidelity to Law’ (1958), 71 Harv.L.R. 630
Ronald Dworkin, TRS Introduction
Endicott, ‘Law and Language’ (Stanford Encyclopedia of Philosophy), sections 1, 2.1, 3.1, 3.2:
Essays: (1) Can Austin distinguish between law and the commands of a gunman? Can you?
(2)"Do Hart's criticisms of Austin's 'command theory' of law accomplish Hart's purposes?"
Is there a theoretical connection between Austin's positivism and utilitarianism, or only a historical connection?
Does Bentham escape Hart’s objections to Austin?
Does Austin put a misplaced emphasis on definitions?
Who or what is sovereign in the United Kingdom? In the United States?
What role do sanctions play in Austin’s theory? What role does the fear of sanctions play?
Can you describe the law of contracts as a set of commands? Would that be a good description of the law?
*Hart, CL chapters 5, 6, 7 and pp.54-9
Raz , AL ch.8 ‘Legal Validity’ esp. pp.153-7
PRN 50-58, 124-6, 146-8
Hart re Raz: EB 153-161
Finnis NLNR 6-15, 257
Neil MacCormick, Legal Reasoning and Legal Theory, pp.257-92
John Gardner, 'Legal Positivism: 5½ Myths', American Journal of Jurisprudence 46 (2001), 199
Essays: (1) Explain the ‘internal aspect’ of rules, and evaluate its role in Hart’s theory of law. [Make sure that you give examples of internal and external statements concerning the law of the U.K.]
(2) What is ‘the union of primary and secondary rules’? is it ‘the key to the science of jurisprudence’?
What does Hart say is the key to jurisprudence? Why?
What is a social rule? What is the practice theory of rules? Are there rules of morality? If so, are they explained by the practice theory?
Are all legal rules social practices? Can you think of legal rules that are not social practices? How can Hart’s theory account for them?
Do words like ‘ought’, ‘may’, ‘duty’, ‘right’ have different meanings in morality and in law?
What is the rule of recognition for the United Kingdom?
Aristotle, Nicomachean Ethics Book 1
Thomas Aquinas, Summa Theologiae Q.90-2, 94-6
Finnis, Aquinas Chapter II, VIII.3
*Finnis NLNR (esp. chapters 1, 2, 9, 10, 12, and 13.4)
“The Truth in Legal Positivism” in George, ed., The Autonomy of Law (1996), esp. section 5
Hart CL p.40 and chapter 9
J.M.Kelly, A Short History of Western Legal Theory (sections in each chapter on natural law theory outline its history)
Raz PRN 162-70
Hans Kelsen, What is Justice? (1957), 'The Natural-Law Doctrine before the Tribunal of Science'
Robert George, Natural Law Theory (1992)
-MacCormick, 'Natural Law and the Separation of Law and Morals'
-Finnis, 'Natural Law and Legal Reasoning'
Essay: (1) ‘Finnis and Hart agree about what a legal system is; the difference between them is that Finnis, unlike Hart, argues that such a system is morally valuable to the community.’ Discuss.
(2) Assess what Finnis says about how to do jurisprudence in Chapter 1 of Natural Law and Natural Rights.
Do natural law theorists infer norms from facts? If so, is there anything wrong with that? If not, where do they get norms from?
'An unjust law is not a law.' If this is not just a contradiction, what does it mean?
Which of their decisions can judges reach without making moral judgments?
What do you make of Hart’s ‘minimum content of natural law’? Could he have developed a full-blown theory of natural law if he had made more detailed observations about human nature?
Is there any such thing as legal positivism?
*Ronald Dworkin, Taking Rights Seriously (1977): chapters 2, 4 (chapters 1, 3, 5, 6, 7, 13 are optional but recommended)
A Matter of Principle (1985): chapters 2, 5, 6, 7
‘Hart’s Postscript and the Character of Political Philosophy’ (2004) O.J.L.S.1-37
Hart, CL, pp.259-63
Ronald Dworkin and Contemporary Jurisprudence (1984): A.D.Woozley, 'No Right Answer', J. Mackie, 'The Third Theory of Law', Raz, 'Legal Principles and the Limits of Law'
Endicott, Vagueness in Law (2000), esp. Chap. 1, 4
‘Are There any Rules?’ (2001) 5 Journal of Ethics 199-220
John Gardner, 'Concerning Permissive Sources and Gaps', Oxford Journal of Legal Studies 8 (1988), 457
Essay: (1) Assess the way in which Dworkin uses “Mrs.Sorenson’s case” to argue against Hart’s theory of law (in ‘Hart’s Postscript and the Character of Political Philosophy’, above).
(2) What is the right answer thesis? Why is it attractive to Dworkin? Is it true?
Does Dworkin have a natural law theory? Does he have a third theory of law?
What is the rights thesis? How does it shape Dworkin's theory?
How does Dworkin distinguish between rules and principles? How does he use the distinction to deny Hart's claim that judges exercise discretion in hard cases? What does Dworkin say to Hart's claim that law is open-textured because language is open-textured?
What is incommensurability? How does it affect Dworkin’s right answer thesis? See TRS 359-60, MF chap.13, Finnis, 'Natural Law and Legal Reasoning' in R.P.George, Natural Law Theory (1992). You might want to pursue the references at MF p.358.
Dworkin LE (especially chapters 1-7, 11)
Freedom’s Law (1996), Introduction and Chapter 3
Finnis, 'On Reason and Authority in Law's Empire' (1987), 6 Law and Philosophy 357
Hart CL, Postscript
Raz, ‘Intention in Interpretation’ in George, The Autonomy of Law (1996)
‘Why Interpret?’ Ratio Juris ___
Endicott, ‘How to Speak the Truth’ (2002), 46 American Journal of Jurisprudence 229-248.
‘Herbert Hart and the Semantic Sting’ (1998), 4 Legal Theory 283-30
Essay: What is the role of interpretation in law?
What is the role of integrity in Dworkin’s theory of law?
What are semantic theories of law? Does Hart agree that his theory is a semantic theory?
Make sure that you can explain the role of the following notions in Law’s Empire: the interpretive attitude, internal and external skepticism, fit and justification, integrity.
-is all interpretation constructive?
-what are the two dimensions of interpretation?
-what is the importance of the three stages of interpretation? how are they related to the two dimensions?
-in LE, how does Dworkin develop the claim he had made in TRS that abstract concepts like 'cruelty' and 'justice' are not vague?
-what is the role of the intention of the author in interpretation?
What is the material that an interpreter treats as ‘data’ at Dworkin’s ‘preinterpretive stage’? Is it what other theorists call ‘law’? Or ‘source-based law?’ Does it include all the history, attitudes, beliefs, aspirations, prejudices, etc. of a community?
What concessions did Hart make to Dworkin in his Postscript? How, if at all, do the concessions change the theory presented in The Concept of Law?
Dworkin thinks that American law prohibits capital punishment. Does that make sense? Is it possible to disagree with Dworkin without adopting his interpretive approach? Does Dworkin have to say that judicially sanctioned executions in the U.S. are murders?
*Raz, AL ch. 12, 13
Finnis, NLNR ch.IX, XI, XII.3
*‘The Authority of Law in the Predicament of Contemporary Social Theory’, (1984), 1 Notre Dame Journal of Law, Ethics and Public Policy
Aquinas Chapter II, VIII.3
Rawls, A Theory of Justice, sections 53-9
Dworkin, TRS ch. 7, 8
Waldron, ‘Special Ties and Natural Duties’ (1993) Philosophy and Public Affairs 1
Essay: (1) Is there a general obligation to obey the law?
(2) ‘stipulations… imposing inequitable burdens… simply fail, of themselves, to impose any moral obligation whatever’. [Finnis] Discuss.
Make sure you understand the following terms and how (or whether) they differ from each other: general, absolute, presumptive, prima facie, conclusive.
Do judges have a general obligation to obey the law?
What are coordination problems? Solving coordination problems is a common function of law; does that mean that it gives rise to a general obligation to obey the law? If not, what more would it take for a general obligation to obey to arise from law’s capacity to coordinate?
What is the importance of point of view in jurisprudence? (reread NLNR pp.3-17, and read PRN 170-7)
“It is by living in well-ordered societies that we can come to be well-ordered persons. But it is the lot of the well-ordered person to acknowledge that she or he cannot in the end shuffle off the final judgment about obligation to the law or to any other extraneous source.” (McCormick, in a review of EPD) Is that a valid criticism of Raz’s theory of authority?
Hart CL ch.7 and pp.204-6 (“Interpretation”)
Raz, AL ch.10 (ch.4 optional)
Finnis, “Natural Law and Legal Reasoning” in George, ed., Natural Law Theory
MacCormick, Legal Reasoning and Legal Theory (2d ed. 1995) --read the Foreword; the rest is optional
Cross and Harris, Precedent in English Law 4th ed. 1991 (esp. chaps. 2, 5-7)
Cross, Statutory Interpretation 3rd ed. 1995, ch.2
Lord Denning, The Discipline of Law (1979) Part 7: “The Doctrine of Precedent”
Dworkin, LE ch.8, 9
Raz, “Intention in Interpretation”, in George, ed., The Autonomy of Law (1996)
Sunstein, ‘On Analogical Reasoning’(1993) 106 Harv LR 741
Essay: What power do English judges have to make law?
What are legal principles?
How does a court find the ratio of a previous decision?
Judges can deal with precedents by drawing analogies and distinctions; do they have any comparable techniques for dealing with statutes?
When are precedents binding in English law?
When will the House of Lords overrule itself? When should it?
Are the rules of precedent rules of law? If so, what is their source? If not, what are they?
What is prospective overruling? When is it justified?
Is judicial reasoning different from other forms of legal reasoning?
Is legal reasoning moral reasoning?
Hugo Bedau, ‘Punishment’: http://plato.stanford.edu/entries/punishment/
Duff & Garland, ‘Introduction: Thinking about Punishment’, in A Reader on Punishment (1994), 1-44
Bentham, The Principles of Morals and Legislation (1781) Chapters 13-15
Finnis NLNR ch.X.1, X.2
Hart, Punishment and Responsibility, ch.1, 7
C.S.Lewis, “The Humanitarian Theory of Punishment” in First and Second Things (1985)
Nicola Lacey State Punishment 1988
John Simmons et al., ed., Punishment (1995) Parts I and II
Ted Honderich, Punishment: The Supposed Justifications (2d ed. 1989)
Essays: (1) “The common feature in all attempts to justify punishment is their unpersuasiveness.” Discuss (1995 Finals paper)
(2) Does the criminal law have a punitive purpose that is different from any other branch of the law, or does it have the same purpose or purposes as other branches?
What is the difference between retribution and revenge?
Would a failure to punish a criminal be unfair to the law-abiding?
Can punishment be justified in an unjust society? Can punishment for violating an unjust law be justified?
Does our criminal justice system rely on any particular rationale for punishing? Consider the implications of the following:
-the requirement of mens rea
-the requirement of actus reus
-the burden of proof
-the role of the victim in the criminal process
-the requirements of prospectivity and clarity in definition of offences
-police and prosecutorial discretion
-the fact that a would-be assassin whose bullet misses is punished less harshly than a successful assassin
Who should decide what happens to prisoners sentenced to life imprisonment?
*J.S.Mill, On Liberty chaps. 1, 4, 5 (Gertrude Himmelfarb’s introduction to the Penguin edition is useful)
Roger Crisp, Mill on Utilitarianism (1997) Chap.8
Devlin, The Enforcement of Morals (1965) chaps.1, 5, 6, 7
Hart, Law, Liberty and Morality
Finnis, NLNR 221-3
“Legal Enforcement of ‘Duties to Oneself’” (1987) 87 Columbia L.R. 433
“Public Good: The Specifically Political Common Good in Aquinas”, in Natural Law and Moral Inquiry, Robert George ed. (1998)
Robert George, Making Men Moral (1993)
Raz, MF chaps. 1, 14, 15 (esp. 15.3, 15.4)
Gerald Dworkin, ‘Paternalism’ in Philosophy, Politics and Society, ed. Laslett & Fishkin
Optional: R.Dworkin, TRS chaps. 10, 11, pp.272-7
“Liberal Community” (1989) 77 Calif.L.R. 479
Shaw v. DPP (1962) A.C. 220 (see Devlin, ch.5)
R. v.Brown  2 W.L.R. 556
Knuller v. DPP  2 All E.R. 898
R. v. Wilson (1996) Times, 5 March
Note in (1997) LQR
1. Write a case comment on Brown (be sure to explain the judges’ reasons, and to explain how you think the case ought to have been decided).
2. State Mill’s “harm principle” (explaining with examples what sort of state interference it allows with people’s bevaviour). Is it a good justification for state interference? Are there any other good justifications?
What is the difference between positive and critical morality? Which did Devlin want to enforce?
What was Hart’s rationale for paternalism? Is paternalism different from enforcement of morality? To what extent, if at all, was Mill a paternalist?
Was Mill a utilitarian? Was he a libertarian? Is it possible to be both? [see the chapter from Crisp's book on Mill, above]
Can you harm yourself without harming others? If so, can it be wrong to do so?
10. Feminist Jurisprudence
** Morgan, J., 'Feminist Theory as Legal Theory' (1988) 16 Melbourne University Law Review 743 THIS ARTICLE IS A GOOD STARTING POINT
** Lacey, N., 'Feminist Legal Theory' (1989) 9 OJLS 383
* MacKinnon, C., 'Feminism, Marxism, Method and the State: Toward a Feminist Jurisprudence' (1983) 8 Signs 635
* Scales, A.C., 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale Law Journal 1373
* MacKinnon, C.A., Feminism Unmodified, Cambridge: HUP 1987, Introduction
Williams, J.C., 'Deconstructing Gender' (1989) 87 Michigan Law Review 797
West, R., 'Jurisprudence and Gender' (1988) 55 University of Chicago Law Review 1
Stubbs, M., 'Feminism and Legal Positivism' (1986) 2 Australian Journal of Law and Society 63
* Smart, C., 'Feminism and Law: Some Problems of Analysis and Strategy' (1986) 14 International Journal of the Sociology of Law 109
* Smart, C., Feminism and the Power of Law, London: Routledge 1989 Ch.4
* Menkel-Meadow, C., 'Feminist Legal Theory, Critical Legal Studies and Legal Education or "The Fem-Crits Go to Law School"' (1988) 38 Journal of Legal Education 61
* '"Dworkin; Which Dworkin?" Taking Feminism Seriously' (1987) 14 Journal of Law and Society 44
*Sypnowich, C., "Feminism and the Critique of Poitical Theory", (1996) 15 OJLS 175
*Lacey, N., Unspeakable Subjects Oxford: Hart 1998, Chs. 6 & 7
Can a feminist approach to law generate a reform agenda that would lead to genuine gender equality?
An excellent place to start is:
** Waldron, 'Introduction' to Waldron (ed) Theories of Rights (1984)
(see also * Feinberg, Social Philosophy (1973) pp.55-64)
As to the ultimate grounds for rights, see the following competing theories:
1. the choice (will) theory
* Hart, 'Legal Rights' in his Essays on Bentham (1982)
2. the interest (benefit) theory
* MacCormick, 'Rights in Legislation' in Hacker & Raz (eds), Law, Morality & Society (1977)
* Raz, 'The Nature of Rights' in his The Morality of Freedom (1986)
3. equal concern and respect
* Dworkin, 'Rights as Trumps' in Waldron (ed) Theories of Rights
* Dworkin, Taking Rights Seriously (rev ed, 1978), pp.272-7
4. promoting the common good
* Finnis, Natural Law & Natural Rights (1980), pp.201-5, 210-18, 221-3 (and 226-30, notes to section 8.2, 8.4, 8.5 & 8.6)
Further reading on the nature of rights
* Waldron, 'A right to do wrong' in his Liberal Rights (1993)
* Dworkin, 'Political Judges and the Rule of Law' in his A Matter of Principle (1985)
* Finnis, 'A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence' (1985) 71 Proceedings of the British Academy 303
* Raz, 'Liberty and Rights' in his The Morality of Freedom (see also 'Rights-based Moralities', ch.8 in the same book)
* Waldron, 'A Right-based Critique of Constitutional Rights' (1993)13 Oxford Journal of Legal Studies 18
Essay: Are rights trumps?
Can utilitarians account for rights? (see Mill, Utilitarianism, chap.5)
What is the difference between property rights and personal rights?
Can there be a legal right without a corresponding legal duty?
Can there be a legal right without a legal remedy?
Kelsen, The Pure Theory of Law (1967) pp.1-57, 194-214
General Theory of Norms (1992) chapters 1, 6, 8, 14, 15, 25, 26, 29, 59
Hart, EJP chapters 14, 15
Raz AL chapters 7, 8
Eekelaar: ‘Principles of Revolutionary Legality’ in Simpson (ed.) Oxford Essays in Jurisprudence
Finnis, ‘Revolutions and Continuity of Law’ in Simpson
J.W.Harris, Legal Philosophies chap.6
Essay: What is legal validity?
Be prepared to explain the following terms and their roles in Kelsen’s theory: the basic norm, general and individual norms, efficacy, sanctions, prescription/description, is/ought, objective/subjective, ideology, legal science.
Who presupposes the basic norm?
What does ‘pure’ mean in ‘pure theory’?
What is a legal system?
J.W.Harris: the Revolutionary’s Dilemma:
Joe: So I drive the car with the bomb down the High Street. What next?
Bill: Straight on to the traffic lights. Don’t turn right at the traffic lights, or you’ll make yourself conspicuous.
Joe: Because turning right there is now illegal. Ouch! Why are you hitting me?
Joe: You said’illegal’. That means their regulations and their constitution ought to be obeyed.
Bill: That isn’t what I meant to say!
Joe: It’s the meaning of what you said. Haven’t you read your Kelsen? Just watch your language in future!
What should Bill say?
Dworkin, LE 276-295
AMP Part IV
R. Coase, 'The Problem of Social Cost' (1960), 3 Journal of Law and Economics 1
Richard Posner, Law and Literature (1988), pp.309-316
The Problems of Jurisprudence (1992), 353-370
And-- essay in Ronald Dworkin and Contemporary Jurisprudence
Law and Legal Theory in England and America (1996), reviewed by Endicott (1998) 114 L.Q.R. 511
United States v. Carroll Towing Co., 159 F.2d 164 (2d Cir.1947)
Jon D.Hanson and Melissa R.Hart, 'Law and Economics' in Blackwell's Companion to Philoosophy of Law and Legal Theory (1996) 311
Essay: Describe with examples what the economic approach tells judges to do. Is that what they do? Is it what they should do?
Does the economic approach tell legislatures to legalize slavery if doing so will increase social wealth?
Are people rational maximisers? If so, what do they maximise?
If I wouldn't pay $5 to insure against a 1 percent chance of a $100 injury, should I have to compensate someone who suffers $100 injury from a 1 percent risk that I created, which I could only have avoided by paying $5?
'Incommensurability... rules out the proposed technique of legal reasoning known as Economic Analysis of Law' --Finnis, 'Natural Law and Legal Reasoning', in George, ed., Natural Law Theory (1992) at 150-151. What is incommensurability? Does the notion add something important to Dworkin's criticism of law and economics?
'At least it [wealth maximization] may be the right default principle, placing on the proponent of departures from wealth maximization the burden of demonstrating their desirability.' (Posner) Does an opponent have to concede at least that much to law and economics? If that is all an opponent has to concede, what impact does economic analysis retain?
Duxbury, Patterns of American Jurisprudence (1995), chap.s 1, 2
Dworkin, TRS, Introduction
Hart, EJP chapter 4: 'American Jurisprudence through English Eyes: The Nightmare and the Noble Dream'
Karl Llewellyn, The Bramble Bush (rev.ed. 1951)
'Some Realism about Realism' (1931), 44 Harvard Law Review 1222
Jerome Frank, Law and the Modern Mind (2nd ed. 1960)
Roscoe Pound, 'The Call for a Realist Jurisprudence' (1931), 44 Harvard Law Review 697
Twining, Karl Llewellyn and the Realist Movement (1973) (chapters 5, 15)
Lon Fuller, 'American Legal Realism' (1934), 82 U.Penn. Law Review 429
Essay: “Legal realism is not a philosophy, but a technique.” (Llewellyn) Discuss.
Are statutes laws?
How would a legal realist define the word 'right'?
What would a realist say about the internal aspect of rules? If statements of law are predictions, what is a judge predicting when he or she states the law in giving reasons for a decision?
What is formalism? Is there anything to legal realism aside from hostility to formalism?
How would you compare critical legal studies with legal realism?
Finnis, NLNR Chapter VII
F A Hayek Law Legislation and Liberty: II: The Mirage of Social Justice (1976)
Robert Nozick, Anarchy State and Utopia (1974)
John Rawls, A Theory of Justice (1971)
Political Liberalism (1993)
John Gardner, 'The Virtue of Justice and the Character of Law', Current Legal Problems , 1
Alan Ryan (ed), Justice (1993)
Bruce Ackerman, Social Justice in the Liberal State (1980)
Alasdair MacIntyre After Virtue 2nd ed. (1985)
Whose Justice? Which Rationality? (1988)
David Miller Social Justice (1976)
Pluralism, Justice and Equality (1994)
Michael Sandel Liberalism and the Limits of Justice (1982)
Michael Walzer Spheres of Justice (1983)
Essay: To treat people with justice is to treat them as equals. Discuss.
What is the difference between commutative justice and distributive justice?
Is there a utilitarian theory of justice?