T1 INTRODUCTION... 7 WHAT IS IT?... 7 TYPES... 7 THE RULE OF LAW...
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1 JURISPRUDENCE Table of Contents T1 INTRODUCTION... 7 WHAT IS IT?... 7 TYPES... 7 THE RULE OF LAW... 8 DICEY- 3 PRINCIPLES... 8 MODERN APPROACHES... 8 WHAT IS THE POINT OF LEGAL THEORY?... 9 T2 NATURAL LAW & MORALITY... 9 NATURAL LAW THEORY... 9 GENERAL FEATURES... 9 John finnis- Australian- self evident- wrote this for a prac guide for legislators and people for when law is made/applied... 9 Acquinas- 13 th century pre renaissance- classical natural law theory RELATIONSHIP BETWEEN NATURAL LAW & SOCIAL CONTRACT THEORY HOBBES- all about giving up power to king LOCKE- if king not protecting prop, you can propel ROSSEAU- French philosopher DECLINE OF NATURAL LAW THEORY REVIVAL- see Finnis ANY ASPECTS OF NATURAL LAW WHICH CAN BE SEEN IN AUS LAW T3 CLASSICAL POSITIVISM WHAT IS LEGAL POSITIVISM? JEREMY BENTHAM- all about who has the power, and proving via science AUSTIN- schematic view of the legal world CLASSICAL POSITIVISM IN AUS LAW T4 MODERN POSITIVISM (21 st century) CHARACTERISTICS: HART- main guy in modern positivism positivists looks to describe law as it 18 HART AND NATURAL LAW- spectrum between locke/hobbs- more hobbs (pessimistic) CRITICISMS OF HART KELSEN- POSITIVISTS, MORE EXTREME THAN HART- looks at law as it is- Pure theory of law INTERNATIONAL LAW CRITICISMS RAZ- hard positivists T5 DWORKIN- better than Hart (interpretation bit)- has lots of followers today- a key thinker COMPARE TO POSIVISTS COMPARE TO NATUAL LAW THEORISTS COMPARE TO REALISTS CRITICISMS HOW DOES IT FIT IN AUS? T6 REALISM... 29
2 AMERICAN REALISTS AMERICAN REALIST METHOD HOLMES LLEWELLYN FRANK- did not cover CRITICISMS SCANDINAVIAN REALISM ROSS- has a lot in common with hart/positivism OLIVECRONA- if added it to Ross, would be a good theory- filled in the gaps in Ross T7 SOCIAL THEORY (Law and sociology) WHAT THEY LOOK AT ROSCOE POUND DURKHEIM WEBER DOMINATION- 3 types MARX CONFLICT MODEL STRUCTURE OF LAW IDEOLOGY HISTORICAL JURISPRUDENCE WHAT IS HISTORY? WESTERN LEGAL SYSTEMS COMMON LAW V CIVIL LAW Von Savigny MAINE ANTHROPOLOGICAL JURISPRUDENCE WHAT IS ANTHROPOLOGY? FOCUSED ON PRIMITIVE SOCIETIES MALINOWSKI HOEBEL GLUCKMAN LOZI BOHANNAN POSPISIL GEERTZ THEORIES OF JUSTICE WHAT IS JUSTICE? ARISTOTLE- virtue KANT- deontology UTALITARIANISM- consequentialism GREATEST GOOD FOR GREATEST AMOUNT POSNER & ECONOMIC ANALYSIS OF LAW- distributive justice Dworkin: RAWLS NOZICK- EXTREME FREE MARKET LIBERTARIAN RIGHTS WHAT IS A RIGHT? HOHFELD RELATIONSHIP OF LEGAL AND MORAL RIGHTS BENTHAM... 48
3 HART WALDRON THEORIES OF RIGHTS WILL THEORY INTEREST THEORY DWORKIN AND GENERAL THEORIES OF RIGHTS DWORKIN AND RIGHTS NOZICK AND RIGHTS RAWLS AND RIGHTS UTILITARIANISM AND RIGHTS HUMAN RIGHTS BASIS FOR INTERNATIONAL HUMAN RIGHTS HUMAN RIGHTS IN WAR AND CRIMINAL LAW HEIRARCHY OF RIGHTS CRITIQUE OF RIGHTS COMMUNITARIANISM SOCIALISM RELATIVISM UTILITARIANISM LEGAL POSITIVISM CRITICAL LEGAL STUDIES/POSTMODERNISM PRACTICALITY & ENFORCEMENT DOMESTIC- rights have diminished place in enforcement INTERNATIONAL BILL OF RIGHTS- should we have one? WHY OBEY THE LAW AND WHY SHOULD WE PUNISH? WHY OBEY? SOCIAL CONTRACT AND OBEDIENCE WHY PUNISH? RETRIBUTION RESTORITIVE JUSTICE COMMUNICATION CONSEQUENTIALIST THEORIES- RETRIBUTION PURPOSE OF PUNISHMENT IN LAW CRITICAL LEGAL THEORY CRITICAL LEGAL STUDIES POSTMODERN LEGAL THEORY LACAN FOCCAULT WHY IS IT IMPORTANT? POSTMODERNISM SUMMARY FEMINIST THEORY METHOD PERSONAL= POLITICAL MAJOR STRANDS FEMINISM, LAW AND RIGHTS RACE THEORY METHOD DOES RACE EXIST? AND RIGHTS?... 61
4 T1 INTRODUCTION... 7 WHAT IS IT?... 7 TYPES... 7 THE RULE OF LAW... 8 DICEY- 3 PRINCIPLES... 8 MODERN APPROACHES... 8 WHAT IS THE POINT OF LEGAL THEORY?... 9 T2 NATURAL LAW & MORALITY... 9 NATURAL LAW THEORY... 9 GENERAL FEATURES... 9 John finnis- Australian- self evident- wrote this for a prac guide for legislators and people for when law is made/applied... 9 Acquinas- 13 th century pre renaissance- classical natural law theory RELATIONSHIP BETWEEN NATURAL LAW & SOCIAL CONTRACT THEORY HOBBES- all about giving up power to king LOCKE- if king not protecting prop, you can propel ROSSEAU- French philosopher DECLINE OF NATURAL LAW THEORY REVIVAL- see Finnis ANY ASPECTS OF NATURAL LAW WHICH CAN BE SEEN IN AUS LAW T3 CLASSICAL POSITIVISM WHAT IS LEGAL POSITIVISM? JEREMY BENTHAM- all about who has the power, and proving via science AUSTIN- schematic view of the legal world CLASSICAL POSITIVISM IN AUS LAW T4 MODERN POSITIVISM (21 st century) CHARACTERISTICS: HART- main guy in modern positivism positivists looks to describe law as it 18 HART AND NATURAL LAW- spectrum between locke/hobbs- more hobbs (pessimistic) CRITICISMS OF HART KELSEN- POSITIVISTS, MORE EXTREME THAN HART- looks at law as it is- Pure theory of law INTERNATIONAL LAW CRITICISMS RAZ- hard positivists T5 DWORKIN- better than Hart (interpretation bit)- has lots of followers today- a key thinker COMPARE TO POSIVISTS COMPARE TO NATUAL LAW THEORISTS COMPARE TO REALISTS CRITICISMS HOW DOES IT FIT IN AUS? T6 REALISM AMERICAN REALISTS AMERICAN REALIST METHOD HOLMES LLEWELLYN FRANK- did not cover CRITICISMS SCANDINAVIAN REALISM... 31
5 ROSS- has a lot in common with hart/positivism HART V ROSS OLIVECRONA- if added it to Ross, would be a good theory- filled in the gaps in Ross T7 SOCIAL THEORY (Law and sociology) WHAT THEY LOOK AT ROSCOE POUND DURKHEIM WEBER DOMINATION- 3 types MARX CONFLICT MODEL STRUCTURE OF LAW IDEOLOGY HISTORICAL JURISPRUDENCE WHAT IS HISTORY? WESTERN LEGAL SYSTEMS COMMON LAW V CIVIL LAW Von Savigny MAINE ANTHROPOLOGICAL JURISPRUDENCE WHAT IS ANTHROPOLOGY? FOCUSED ON PRIMITIVE SOCIETIES MALINOWSKI HOEBEL GLUCKMAN LOZI BOHANNAN POSPISIL GEERTZ THEORIES OF JUSTICE WHAT IS JUSTICE? ARISTOTLE- virtue KANT- deontology UTALITARIANISM- consequentialism GREATEST GOOD FOR GREATEST AMOUNT POSNER & ECONOMIC ANALYSIS OF LAW- distributive justice Dworkin: RAWLS NOZICK- EXTREME FREE MARKET LIBERTARIAN RIGHTS WHAT IS A RIGHT? HOHFELD RELATIONSHIP OF LEGAL AND MORAL RIGHTS BENTHAM HART WALDRON THEORIES OF RIGHTS WILL THEORY INTEREST THEORY RAZ... 49
6 DWORKIN AND GENERAL THEORIES OF RIGHTS DWORKIN AND RIGHTS NOZICK AND RIGHTS RAWLS AND RIGHTS UTILITARIANISM AND RIGHTS HUMAN RIGHTS BASIS FOR INTERNATIONAL HUMAN RIGHTS HUMAN RIGHTS IN WAR AND CRIMINAL LAW HEIRARCHY OF RIGHTS CRITIQUE OF RIGHTS COMMUNITARIANISM SOCIALISM RELATIVISM UTILITARIANISM LEGAL POSITIVISM CRITICAL LEGAL STUDIES/POSTMODERNISM PRACTICALITY & ENFORCEMENT DOMESTIC- rights have diminished place in enforcement INTERNATIONAL BILL OF RIGHTS- should we have one? WHY OBEY THE LAW AND WHY SHOULD WE PUNISH? WHY OBEY? SOCIAL CONTRACT AND OBEDIENCE WHY PUNISH? RETRIBUTION WEAK RETRIBUTION STRONG RETRIBUTION RESTORITIVE JUSTICE COMMUNICATION CONSEQUENTIALIST THEORIES- RETRIBUTION PURPOSE OF PUNISHMENT IN LAW CRITICAL LEGAL THEORY CRITICAL LEGAL STUDIES POSTMODERN LEGAL THEORY LACAN FOCCAULT WHY IS IT IMPORTANT? POSTMODERNISM SUMMARY FEMINIST THEORY METHOD PERSONAL= POLITICAL MAJOR STRANDS LIBERAL RADICAL POSTMODERN DIFFERENCE FEM FEMINISM, LAW AND RIGHTS RACE THEORY METHOD DOES RACE EXIST? AND RIGHTS?... 61
7 Aim T1 INTRODUCTION WHAT IS IT? Is also referred to as legal theory and legal philosophy It tries to answer fundamental questions about law It is the theory of law: the study of law, legal systems and their philosophical basis [dictionary pg 330] o So it is impacted by: Social theory Economic theory Political theory It is considering these theories and determines if ideas of law, justice and the legal system are just under them. Ideas about rights, justice and how the legal system works The theorists talk about judicial discretion: that is do they have it, do they have a strong discretion to make law or a weak one to determine the outcome? Focused on western legal thought Most theorists from a CL background- we infuse their ideas. Always ask can we apply their theories to other legal systems. TYPES Descriptive theory Normative Theory Critical Legal Theory ** often hard to separate/find a distinction See Dworkin- law of integrity- the law should fit & justify the legal materials- descriptive & No universal law agreeable to rational deduction normalist Explain what the law is, why & its consequences What the law should be Concerned with Facts Values (moral & political)- utilitarianism What does it do? Provides a theory to explain a doctrine- for example if the courts limit free speech, the doctrine of freedom of expression may be justified for existing Tries to explain what the law is (for example Marxist theory- gives an Evaluates the law as either ideal (would lead to best legal system if achievable) or non- ideal (constraints on them such as enforcing them) Law is based on reason Logic and structure of society is what the law is based on. As it comes from society, it is essentially a set of beliefs/prejudices (the law is) which says that the injustices by society are ok (legitimizes them) The law is politics, so is not neutral it is biased.
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