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About this book

This textbook is an ambitious and engaging introduction to the more advanced writings on Jurisprudence, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding. The aim of the book is therefore not to present a complete overview of theoretical issues in Jurisprudence, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

A perfect book for students taking a module in jurisprudence, or for those wanting to deepen their knowledge.

Table of Contents

Chapter 1. The Nature of Jurisprudence

Abstract
Hart described three: How is law related to coercive threats? What is it to be under a legal obligation, and how does this relate to moral obligation? What are rules and in what way is law about rules? In answering the question – What is law? – philosophers of law have aimed to provide answers to these questions, typically by considering whether there are any necessary connections between law and coercion, law and morality, and law and rules, and elucidating the nature of those connections. In doing so, they normally aim to describe the features of a phenomenon which make it law – they want to know whether, for instance, something has to have a coercive element if it is to count as law. If so, then coerciveness is part of what makes law ‘law’. The main divisions in the philosophy of law can still be broadly understood in terms of differing answers to Hart’s three questions. We can thus identify three broad fault-lines in contemporary jurisprudence.
Nicholas J McBride, Sandy Steel

Chapter 2. The Normativity of Law

Abstract
The existence of law can give us reasons to act in particular ways. Most obviously, the fact that we are required to drive on the left in the UK gives each of us a reason to drive on the left: driving on the right becomes extremely dangerous if everyone else is driving on the left. The assurance the law gives us that it will give us a remedy if someone breaches a contract with us, can give us reasons to trust someone to perform a contract that would not be present in the absence of that assurance. The prospect that we might be held liable if someone is injured on a school trip that we are supervising may give us reason to scrap the idea of taking 30 schoolchildren camping. Some of these effects are intended; some not. This chapter is about situations where the law intends to supply us with a reason to act in a particular way by requiring us to act in that way.
Nicholas J McBride, Sandy Steel

Chapter 3. The Rule of Recognition

Abstract
One of the greatest contributions that H.L.A. Hart’s The Concept of Lawmade to the study and understanding of the nature of law was his insight that a legal system is not just made up of primaryrules that require people to act in particular ways (such as not harassing other people).
Nicholas J McBride, Sandy Steel

Chapter 4. The Morality of Legality

Abstract
As we saw towards the end of the last chapter, Lon Fuller argued that in a legal system that is working properly, a number of different precepts – what we can call precepts of legality (and what other thinkers refer to when they are talking about the rule of law) – will be observed by the system’s law-makers in laying down rules to guide the conduct of the subjects of the legal system
Nicholas J McBride, Sandy Steel

Chapter 5. Natural Law

Abstract
One of the things that is most off-putting about the label ‘natural law’ is that it has no natural meaning. So it is not immediately clear what is being said if we say of some thinker, Leia, that she is a ‘natural lawyer’ or that she believes in ‘natural law’. As Philip Soper has observed: ‘natural law refers both to a moral theory and a legal theory’ where the moral theory insists ‘that moral principles are objectively valid and discoverable by reason’ and the legal theory ‘denies that a sharp separation of [law and morality] is possible’. But even this is too simple. There are no less than eight different positions, the adoption of any one of which by Leiamight lead someone to categorise her as a ‘natural lawyer’. There is, first of all, the position that
Nicholas J McBride, Sandy Steel

Chapter 6. Adjudication and Interpretation

Abstract
In this chapter, we move away from debates surrounding the nature of law to debates about what courts do and should do within a legal system. For some, debates about what courts do and should do aredebates about the nature of law, as they identify law with what the courts do and should do. On one view (which is associated with Ronald Dworkin), the courts always apply the law to resolve the cases that are brought before them, and they should apply the law to resolve those cases. On another view (associated with Oliver Wendell Holmes and the ‘legal realist’ school of legal theory), law is to be identified with whatever the courts do in resolving cases that come before them. As we will see, H.L.A. Hart was sceptical of both of these views, dubbing the first view ‘the noble dream’ of cases always being decided impersonally by application of the law, and the second view ‘the nightmare’ of cases being decided according to the personal predilections of the judge without any kind of legal regulation of how the judge decides the case. For Hart, deciding cases sometimes involves a judge in applying the law to resolve the case, but at other times it involves a judge deciding what the law will or should say in the case at hand. The three debates discussed in this chapter offer us an opportunity to see which of these views of how judges operate is correct. The first debate is about how judges decide ‘hard cases’ – that is, cases where it is not clear what the law says in relation to that case. The second debate is about how judges should interpret statutory provisions. The third debate is about how a judicial decision on a particular issue binds future courts, if it does at all.
Nicholas J McBride, Sandy Steel

Chapter 7. The Obligation to Obey the Law

Abstract
Not many works of Plato’s better exemplify Alfred North Whitehead’s dictumthat ‘the European philosophical tradition … consists of a series of footnotes to Plato’ than the Crito. The dialogue described in the Critotakes place in jail, in 399 BC. Socrates has been sentenced to death by an Athenian jury for corrupting the youth of Athens and for impiety. Crito, an elderly friend of Socrates’, visits Socrates in jail two days before he is due to be executed, and urges Socrates to escape the death penalty by fleeing into exile. Crito will bribe Socrates’ guards to induce them to let Socrates go, and will arrange for Socrates to live with friends of Crito in Thessaly, a region of Greece that resembled the American Wild West (without the guns or the hats). Socrates refuses to escape. He imagines what the Laws of Athens would say to him were he to do as Crito suggests, and concludes that it would be morally wrong not to submit to the death penalty imposed on him under those laws. In other words, Socrates concludes that he is morally obliged to abide by the laws of Athens.
Nicholas J McBride, Sandy Steel

Chapter 8. Morality and Rights

Abstract
Let’s call those who hold that moral claims can be true or false, and that some are true, objectivists.They think that moral propositions are similar to ordinary factual propositions such as ‘It’s raining outside’. Like these statements, they claim, moral statements can be true or false. Furthermore, they think that some moral statements are true. Let’s call those who believe either that there are no moral facts or that moral judgments are not the sort of the thing that can be true or false, subjectivists. For some subjectivists, moral judgments are more akin to emotions or desires. My desire for ice cream is not the sort of thing that can be true or false.
Nicholas J McBride, Sandy Steel

Chapter 9. Justice

Abstract
In his review of Amartya Sen’s The Idea of Justice, John Gardner notes that: one oddity of The Idea of Justicewhich is also an oddity of Rawls’ A Theory of Justice[is that] [n]either book gives over many words to explaining the very idea of justice, i.e. what marks a question out as one of justice as opposed to diligence, decency, humanity, toleration, public-spiritedness, etc. Let’s not fall into the same trap. What exactly are we talking about, when we talk about justice? Justice seems to be a term that can be applied to a person, an act, and a community. The question is whether there is some underlying sense of what justice is that might account for these diverse ways in which the term justice is used. Three views on this issue can be identified.
Nicholas J McBride, Sandy Steel

Chapter 10. The Enforcement of Morality

Abstract
The European Convention on Human Rights provides that a number of the rights set out in the Convention can be abridged, if it is necessary to do so, ‘for the protection of health or morals’. While no one disagrees with the state taking action to protect people’s health, there is considerable debate over whether it is legitimate for the state to act with the object of (1) compelling people to comply with their moral duties; (2) encouraging or helping people to live worthwhile, meaningful lives; or (3) discouraging people acting in ways that will make it harder for other people either to comply with their moral duties, or to live worthwhile, meaningful lives. Let’s say that a government that acts with the object of doing (1) or (2) or (3), or some combination of (1), (2) and (3), is in the business of ‘enforcing morality’. The debates in this chapter are about whether it is legitimate for the state to be in the business of enforcing morality.
Nicholas J McBride, Sandy Steel

Chapter 11. The Value of Studying Jurisprudence

Abstract
It might seem strange to concludean introductory book on jurisprudence with a chapter debating the value of studying jurisprudence. Surely this should have been the first question we debated, not the last? However, the truth is that it is impossible to form a proper view as to the value of studying jurisprudence without some acquaintance with the sort of issues that mainstream writings on jurisprudence tend to focus on. Now that the reader has acquired some familiarity with those issues and writings, we can at last address the issue of whether all the intellectual effort that has been expended on the debates dealt with in the last 10 chapters – and all the intellectual effort that a student would have to expend to come fully to terms with those debates – is actually worth it. The first debate we will look at in this chapter is over whether there is any point in addressing the sort of questions that legal theorists – and in particular legal positivists – tend to focus on. The second debate is about the dark side of jurisprudence – whether studying jurisprudence actually has negative effects. The third debate is on whether we can hope to make any progress towards achieving a final answer on some of the issues debated in this book.
Nicholas J McBride, Sandy Steel
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