JURISPRUDENCE. Cavendish Publishing Limited. London Sydney

Transcription

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2 JURISPRUDENCE Cavendish Publishing Limited London Sydney

3 TITLES IN THE SERIES Administrative Law Business Law Child Law Civil Liberties Commercial Law Company Law Conflict of Law Constitutional & Administrative Law Contract Law Criminal Law Criminal Litigation and Sentencing Criminology Employment Law English Legal System Equity & Trusts European Community Law Evidence Family Law International Trade Law Jurisprudence Land Law Law of Torts Public International Law Revenue Law Succession, Wills & Probate A Level Law Paper I A Level Law Paper II

4 JURISPRUDENCE L B Curzon Barrister Cavendish Publishing Limited London Sydney

5 First published in 1993 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0) Facsimile: +44 (0) Visit our Home Page on First edition 1993 Second edition 1995 Reprinted 1998 Curzon, L B 1995 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyrights Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the prior permission in writing of the publisher. Curzon L B Jurisprudence (Lecture Notes Series) I Title II Series 340 ISBN Cover photograph by Jerome Yeats Printed and bound in Great Britain

6 Preface to the second edition This text is made up of chapters designed for students who are approaching jurisprudence for the first time, and for those who are embarking on a scheme of revision prior to a first examination in the subject. The summaries at the end of each chapter are intended for those who wish to refer to the gist of the chapters. The text is intended to be read in conjunction with Questions and Answers in Jurisprudence (1995) (2nd edn) (Cavendish Publishing Limited). The inclusion of subject matter has been determined largely by the contents of the London University LLB examination syllabus in Jurisprudence and Legal Theory; there is additional material which is based on the syllabus requirements of other universities. One of the principal problems for students of jurisprudence has been, and remains, the covering of background reading. Jurisprudence has produced a vast range of literature which would require more than a lifetime for anything more than a mere perusal. But an acquaintance with a representative range of the classics of jurisprudence is essential, and rewarding. Valuable selections may be found in the texts by Freeman, and Davies and Holdcroft. For this second edition, most of the original chapters have been extended; new material includes a section on the postscript to the second edition of Hart s The Concept of Law (1994). Additional chapters include material relating to rights, codification, and the principal features of feminist jurisprudence. Professor Ervin Pollack, in his text, Jurisprudence: Principles and Applications (1979) (Ohio State University), writes: Philosophical thought plays a relevant role in the solution of legal problems. Stripped of its verbiage, the generative source of the law is in legal theory in the nature of reality, in the elements of knowledge, in the requisites of morality, in the fulfilment of a good life, and in the objectives of social institutions. It is in the spirit of these observations that this book on jurisprudence has been compiled. L B Curzon 1995

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8 Outline of Table of Contents Preface to the second edition Table of Cases Table of Statutes v xxxv xxxvii 1 INTRODUCTION TO JURISPRUDENCE The essence of definition in relation to jurisprudence The problems of definition The problems considered Examples of definitions of jurisprudence Jurisprudence as a science Jurisprudence as a philosophy The vocabulary of jurisprudence Classification of jurisprudential thought Problems of classification 9 Summary of Chapter FOUNDERS OF THE WESTERN TRADITION (1): PLATO, ARISTOTLE, CICERO Western jurisprudence Greek legal thought Plato s concept of the State Plato s concept of justice Plato s Utopia Aristotle s concept of law Aristotle s concept of justice Aristotle and the State Cicero and Roman law Cicero and the natural law Cicero and the State The Graeco-Roman legacy 20 Summary of Chapter FOUNDERS OF THE WESTERN TRADITION (2): HOBBES, LOCKE, ROUSSEAU Government, citizens and natural rights The jurist as a creature of his time The Social Contract myth Hobbes and the Social Contract Legal implications of Hobbes doctrine Disobedience and rebellion Locke and the Social Contract Legal implications of Locke s doctrine Resisting abuses 30

9 viii Outline of Table of Contents 3.10 Rousseau and the Social Contract The legacy of Hobbes, Locke, Rousseau 32 Summary of Chapter NATURAL LAW (1): AQUINAS AND NEO-SCHOLASTICISM Normative jurisprudence and natural law Essential principles of natural law Aquinas and his predecessors Aquinas concept of the law Aquinas four-fold classification of law When is a law not law? Significance of Aquinas view of natural law Neo-Scholasticism and the natural law Dabin, Rommen, Le Fur Lucey and Maritain 44 Summary of Chapter NATURAL LAW (2): STAMMLER, RADBRUCH, FINNIS A changing doctrine Stammler: natural law with a variable content Stammler s principles of respect and participation The essence of Stammler s jurisprudential thought Radbruch: a return to transcendent law Finnis: the universality of basic values Unjust laws Finnis and natural rights Criticisms of Finnis Criticism of natural law by positivists Ross critique of natural law All things to all men 54 Summary of Chapter UTILITARIANISM (1): BENTHAM Antecedents of Bentham s utilitarianism Essence of Bentham s utilitarianism The Hedonistic or Felicific Calculus The nature of a law The fundamentals of legislation Natural law and natural rights Bentham and the criminal law The fundamentals of punishment under the criminal law Opposition to Bentham s views on punishment The discrediting of Bentham s utilitarianism 64 Summary of Chapter 6 67

10 Outline of Table of Contents ix 7 UTILITARIANISM (2): JOHN STUART MILL Mill s place in jurisprudence Utilitarianism restated Altruism and Utilitarianism Justice and utility Equality and utility Mill s concept of liberty Liberty and compulsion The appropriate region of human liberty Freedom of expression The rightful limits to society s authority Governmental policy Stephen s criticism of Mill 75 Summary of Chapter LEGAL POSITIVISM The choice Use of the term legal positivism Antecedents of legal positivism Hume and Comte Logical positivism The essence of legal positivism Methodology The exclusion of value considerations Positive law and the law Is and ought Legal positivism exemplified Some general criticisms of legal positivism The positivist reply A comment on the contribution of legal positivism to jurisprudence 86 Summary of Chapter THE HART-FULLER DEBATE Occasion of the debate Background to the debate (1): German law during the era of dictatorship Background to the debate (2): German law during the post-war period The case of the wife-informer Hart opens the debate Fuller s response Hart s reply The minimum content of natural law Fuller s response The internal morality of law 94

11 x Outline of Table of Contents 9.11 Fuller and the lawless regime The main issues in the debate: a brief recapitulation An inconclusive debate 95 Summary of Chapter POSITIVISM: AUSTIN Background The essence of Austin s thought Austin s concept of law Austin s concept of sovereignty Sanctions in Austin s doctrine of law Criticisms of Austin s doctrine Vinogradoff s criticisms Hart s criticisms The influence of Austin 106 Summary of Chapter POSITIVISM: HART Essential features of Hart s view Prerequisites for the existence of a legal system Social habits and social rules The classification of social rules Legal rules The primary rules Primary rules alone will not suffice The secondary rules The rule of recognition The rules of change The rules of adjudication The existence of a legal system Obedience to the rules Relationship of officials to the secondary rules A Janus-faced statement Hart s postscript 115 Summary of Chapter POSITIVISM: KELSEN Object of the pure theory, and Kelsen s methodology The essence of the pure theory The place of justice in the pure theory The norms The validity of norms The hierarchy of norms The Grundnorm The effectiveness of norms 123

12 Outline of Table of Contents xi 12.9 The all-embracing nature of law Criticisms of Kelsen The continuing attraction of pure law theory 126 Summary of Chapter THE HISTORICAL APPROACH: SAVIGNY AND MAINE History as an aid to understanding Savigny: the spirit of the people The place of legislation and lawyers Learning from the past: the significance of Roman law Savigny criticised The paradox of Roman law for the German people Social pressures and legislation Maine: the relationship of ancient law to modern legal thought Stages in the development of law Further progress and the nature of societies The dynamic stage of legal development From status to contract Maine criticised Jurisprudence as the study of historically-evolving systems 136 Summary of Chapter THE MARXIST APPROACH Up till now philosophers have merely interpreted the world Dialectical materialism Laws of economic production Historical materialism Base and superstructure Class instrumentalism State and law The withering away of the State Law as fetish Jurisprudence at the service of the State 146 Summary of Chapter THE SOCIOLOGICAL APPROACH (1): JHERING, EHRLICH, DURKHEIM Sociology and the law Jhering: law as a social mechanism for the balancing of purposes and interests The reconciliation of interests Ehrlich: the centre of gravity of legal development 151

13 xii Outline of Table of Contents 15.5 Ehrlich s analysis of norms The living law Discovering the living law The Czernowitz experiment Durkheim and social solidarity Law as an external index Law, crime and punishment Durkheim criticised 155 Summary of Chapter THE SOCIOLOGICAL APPROACH (2): WEBER AND POUND Systematisation and sociological jurisprudence Weber: law as legitimate authority The types of legitimate authority A systematised view of procedures within legal systems Weber s typology and English law Pound: the essence of his jurisprudential thought Interests Individual interests Public interests Social interests The balancing of interests The recognition of new interests 165 Summary of Chapter SCANDINAVIAN REALISM Background and essential features Hägerström Hägerström and word-magic Lundstedt Olivecrona Olivecrona s independent imperatives Ross Criticisms of Scandinavian Realism 174 Summary of Chapter AMERICAN REALISM (1): HOLMES, FRANK, GRAY Philosophical roots of American realism The realist approach to jurisprudence Holmes, founder of the American realist movement What is the law? The bad man test Restraining judicial law-making Holmes and legal theory The essence of Frank s realism 183

14 Outline of Table of Contents xiii 18.8 Rules as the basis of prediction The unblindfolding of justice Gray and the significance of rules Holmes, Frank, Gray criticised 185 Summary of Chapter AMERICAN REALISM (2): LLEWELLYN, SCIENTIFIC PREDICTION Essence of Llewellyn s approach The problem of rules What is the law? Law as institution Law jobs Law job clusters The predictability of law Scientific prediction of the law Jurimetrics 193 Summary of Chapter AMERICAN JURISPRUDENCE TODAY (1): RAWLS AND NOZICK The jurisprudence of social justice Rawls: the public conception of justice The principles of justice as fairness The priority rules Supremacy of the basic liberties The attainment of a just society Credibility of Rawls theory An excursus: Rawls on the question of rights and civil disobedience Nozick s individual libertarianism The state of freedom The minimal State The protecting agency parable Objections to Nozick s theses 206 Summary of Chapter AMERICAN JURISPRUDENCE TODAY (2): DWORKIN, CRITICAL LEGAL STUDIES A radical approach to jurisprudence Dworkin and the natural law The attack on positivism and the concept of law as rules Law and morality Judge-made law Rights 214

15 xiv Outline of Table of Contents 21.7 Critical Legal Studies: the background The stance against liberalism CLS and Marxism Opposition to formalism CLS and legal reasoning Dworkin and CLS 219 Summary of Chapter LAW AND MORALITY: THE HART-DEVLIN DEBATE Background to the debate Occasion for the debate Devlin s questions Devlin s answers Hart s response Sexual morality and subversive activities Punishment for sexual misdemeanour Hart s caution to legislators The debate continues A footnote by Dworkin 231 Summary of Chapter PROBLEMS OF RIGHTS (1): ESSENTIAL FEATURES Rights as the essence of law Rights formally defined The characteristics of a right Rights as equivalent to duties Types of right Hohfeld s analysis of rights The concept of fundamental human rights The overriding of rights Human rights and the common good 244 Summary of Chapter PROBLEMS OF RIGHTS (2): CHILDREN S RIGHTS, ABORTION, ETC Recent concerns International recognition of children s rights A new look at children s rights and parental responsibility: the Gillick case (1986) Dworkin s Life s Dominion (1993) Opposition to abortion Opposition of feminists to Roe v Wade What is sacred? 252

16 Outline of Table of Contents xv 24.8 Dworkin s plea for a measure of agreement The right to an easy death Deciding about dying The deliberate withdrawal of medical aid leading to death The continuing opposition to legalised euthanasia The desirability of agreement 256 Summary of Chapter PROBLEMS OF RIGHTS (3): NATURAL JUSTICE The general concept ECHR The significance of natural justice in procedures for application for judicial review The rule against bias The rule against condemning a person unheard Natural justice, rights and legitimate expectations Natural justice and the extension of rights 269 Summary of Chapter PROBLEMS OF RIGHTS (4) BILL OF RIGHTS Essence of the problem Rights are too important to be left to oral tradition The shield of the common law has become less effective Judges would receive much support from a Bill of Rights A Bill of Rights is essential if the UK is to fulfil its growing international obligations A Bill of Rights will provide an assurance of fundamental rights for future generations An example from Canada A comment from an American jurist A question of timing 282 Summary of Chapter CODIFICATION OF THE LAW The problem Codes in history Arguments in favour of codification Arguments against codification Attempts at codification in the UK A Bill of Rights and codification A continuing jurisprudential problem 296 Summary of Chapter

17 xvi Outline of Table of Contents 28 FEMINIST JURISPRUDENCE Background The struggle against patriarchy Telling it as it is: the problems of a gendered language The rejection of the formal ideology of equality The rejection of Marxist jurisprudence Toward the good society Criticisms of feminist jurisprudence 308 Summary of Chapter Envoi 313 Recommended Reading List 315 Index 317

18 Detailed Table of Contents Preface Table of Cases Table of Statutes v xxxv xxxvii 1 INTRODUCTION TO JURISPRUDENCE The essence of definition in relation to jurisprudence The problems of definition The problems considered Boundaries Subjectivity Shirts in meaning Bentham and Popper Examples of definitions of jurisprudence Jurisprudence as a science Problem of verifiability Scientific method Jurisprudence as a philosophy Philosophy and the real world of the law Philosophical divisions as reflected within jurisprudential theory The vocabulary of jurisprudence Analytical and linguistic philosophy Hart s comments Danet s analysis Classification of jurisprudential thought Salmond Stone Keeton Problems of classification Compartmentalisation Purposes of convenience 10 Summary of Chapter FOUNDERS OF THE WESTERN TRADITION (1): PLATO, ARISTOTLE, CICERO Western jurisprudence Greek legal thought Plato s concept of the State State and human nature Groups in the State Plato s concept of justice Social harmony Types of State Plato s Utopia Morality and obedience Guardians of the law 15

19 xviii Detailed Table of Contents 2.6 Aristotle s concept of law Embracing nature of law Equity Aristotle s concept of justice Distributive justice Corrective justice Aristotle and the State Monarchy Aristocracy Polity Tyranny Oligarchy Democracy Cicero and Roman law Cicero and the natural law True law Universality of law Cicero and the State Obedience and freedom Property The Graeco-Roman legacy 20 Summary of Chapter FOUNDERS OF THE WESTERN TRADITION (2): HOBBES, LOCKE, ROUSSEAU Government, citizens and natural rights The jurist as a creature of his time The Social Contract myth Hobbes and the Social Contract The compact The Common-Wealth Legal implications of Hobbes doctrine Bad law Disobedience and rebellion Ending the duty of obedience Locke and the Social Contract Legal implications of Locke s doctrine Property Equality Resisting abuses Resistance to government Preservation of life Rousseau and the Social Contract Du contrat social (1762) Respect for the law The legacy of Hobbes, Locke, Rousseau 32 Summary of Chapter 3 35

20 Detailed Table of Contents xix 4 NATURAL LAW (1): AQUINAS AND NEO-SCHOLASTICISM Normative jurisprudence and natural law Burlamaqui, Kelsen and Radbruch Essential principles of natural law Aquinas and his predecessors Augustine Isidore Gratian Aquinas concept of the law Law and Divine Reason Aquinas four-fold classification of law Lex aeterna Lex divina Lex Humana Lex naturalis When is a law not law? Unjust laws Significance of Aquinas view of natural law John Duns Scotus William of Occam Neo-Scholasticism and the natural law Adler s critique Dabin, Rommen, Le Fur Dabin Rommen Le Fur Lucey and Maritain Lucey Maritain 44 Summary of Chapter NATURAL LAW (2): STAMMLER, RADBRUCH, FINNIS A changing doctrine Essence of the classical natural law Stammler: natural law with a variable content Stammler s principles of respect and participation The essence of Stammler s jurisprudential thought Radbruch: a return to transcendent law Radbruch s theses Finnis: the universality of basic values Natural law and the legal system The concept of human goods Justice and liberty Pleasure as a human good? The concept of practical reasonableness Unjust laws 52

21 xx Detailed Table of Contents 5.8 Finnis and natural rights Criticisms of Finnis Criticism of natural law by positivists Hume Bentham Carnap and Ayer Ross critique of natural law All things to all men 54 Summary of Chapter UTILITARIANISM (1): BENTHAM Antecedents of Bentham s utilitarianism Epicureans Helvetius Essence of Bentham s utilitarianism Principle of utility Pleasure and pain The Hedonistic or Felicific Calculus The nature of a law Law as command Sanctions The fundamentals of legislation Natural law and natural rights Bentham and the criminal law The fundamentals of punishment under the criminal law Essence of punishment Problems of punishment Opposition to Bentham s views on punishment The discrediting of Bentham s utilitarianism Impracticability of measuring pleasure and pain Vagueness of happiness A mere restatement of natural law? 65 Summary of Chapter UTILITARIANISM (2): JOHN STUART MILL Mill s place in jurisprudence Utilitarianism restated Bentham s quantitative hedonism Mill s qualitative approach Altruism and Utilitarianism The golden rule Social and legal practices Justice and utility Justice as a rule of conduct The widening of justice Equality and utility Mill s concept of liberty 72

22 Detailed Table of Contents xxi 7.7 Liberty and compulsion Limit to compulsion Accountability of the citizen The appropriate region of human liberty Pursuit of one s own good Self-guardianship Freedom of expression Essence of free expression Case for freedom of opinion The rightful limits to society s authority Governmental policy Encouraging self-development Danger of bureaucracy Stephen s criticism of Mill 75 Summary of Chapter LEGAL POSITIVISM The choice Use of the term legal positivism Antecedents of legal positivism Philosophical positivism: the early empiricists Locke and Berkeley Hume and Comte Hume: the significance of sense impressions Comte: the law of the three stages Logical positivism The essence of legal positivism The rejection of metaphysics The principle of verifiability Methodology The exclusion of value considerations Holmes view Positive law and the law Is and ought Legal positivism exemplified Austin Kelsen Hart Some general criticisms of legal positivism A mere search for facts The exclusion of the wider context of law is fatal Ought in the law should not be ignored Justice downgraded The positivist reply A comment on the contribution of legal positivism to jurisprudence 86 Summary of Chapter 8 87

23 xxii Detailed Table of Contents 9 THE HART-FULLER DEBATE Occasion of the debate Background to the debate (1): German law during the era of dictatorship Background to the debate (2): German law during the post-war period The case of the wife-informer Hart opens the debate The law is the law A confusion of the real issue Fuller s response The necessity of inner morality of the law Lawlessness exemplified Positivism basically flawed Hart s reply Law and morality not interchangeable terms Choice between evils The minimum content of natural law Core of good sense in natural law Fuller s response The governance of rules The internal morality of law Criticism of Fuller s desiderata Fuller and the lawless regime Lack of internal morality negates the essence of true law Questions of law and morality inseparable The main issues in the debate: a brief recapitulation An inconclusive debate 95 Summary of Chapter POSITIVISM: AUSTIN Background The essence of Austin s thought Jurisprudence is concerned with positive laws Law is the command of a Sovereign Austin s concept of law Laws improperly so-called Laws properly so-called Austin s concept of sovereignty Sovereignty and superiority Sovereignty and obedience The essence of law Austin s theory anticipated Sanctions in Austin s doctrine of law Criticisms of Austin s doctrine Linguistic looseness The absolute Sovereign is rare Law is not always a command Confusion of sovereignty de facto and de jure Narrowness of the theory 103

24 Detailed Table of Contents xxiii 10.7 Vinogradoff s criticisms Theory uses a formal approach only Agreement, not command, is at the basis of much law Coercion alone does not explain law The theory ignores the essence of common law Hart s criticisms Law as orders backed by the threat of application of sanctions The law-maker is above the law The origins of the law in order plus threat The habit of obedience among subjects The omnipotent Sovereign The influence of Austin 106 Summary of Chapter POSITIVISM: HART Essential features of Hart s view Law as a social phenomenon The need for systematic rules Prerequisites for the existence of a legal system Social habits and social rules Essence of social habits Essence of social rules External and internal aspects of rules The classification of social rules Legal rules The primary rules Primary rules alone will not suffice Need for restrictions Defects of a system based on primary rules only The secondary rules The rule of recognition Essence of the rule The rule as a test The rules of change Examples The rules of adjudication The existence of a legal system Fundamental conditions Obedience to the rules Pervasive obedience Widespread obedience Relationship of officials to the secondary rules A Janus-faced statement Hart s postscript 115 Summary of Chapter

25 xxiv Detailed Table of Contents 12 POSITIVISM: KELSEN Object of the pure theory, and Kelsen s methodology Value-free judgments essential The study of law to be free from adulteration Metaphysics and natural law rejected The essence of the pure theory The place of justice in the pure theory The norms Law as a coercive order of human nature Law as norms addressed to officials The validity of norms The hierarchy of norms Concretisation of norms The Grundnorm Essential features Fundamentals The effectiveness of norms Acceptance Obedience The all-embracing nature of law Identities of some aspects of law Criticisms of Kelsen Law is not an isolate Justice should not be excluded from a consideration of law Coercion is exaggerated in significance Grundnorm is unreal A recognition of natural law principles? Failure to identify the source of the law The continuing attraction of pure law theory 126 Summary of Chapter THE HISTORICAL APPROACH: SAVIGNY AND MAINE History as an aid to understanding Savigny: the spirit of the people Kindred consciousness Custom and the people The place of legislation and lawyers Legislation reflects harmony with the people Lawyers are trustees for the people Learning from the past: the significance of Roman law Its eternal significance Its universality Savigny criticised Highly selective investigation Volksgeist a mere fiction What is a communal conscience? Law often based on pragmatism Custom exaggerated Gray s criticisms 132

26 Detailed Table of Contents xxv 13.6 The paradox of Roman law for the German people Social pressures and legislation Maine: the relationship of ancient law to modern legal thought Stages in the development of law First stage: commands Second stage: customary law Third stage: codes Further progress and the nature of societies The stationary societies The progressive societies The dynamic stage of legal development Legal fictions Equity Legislation From status to contract Maine criticised Lack of evidence Oversimplification Status does not yield invariably to contract Jurisprudence as the study of historically-evolving systems 136 Summary of Chapter THE MARXIST APPROACH Up till now philosophers have merely interpreted the world Dialectical materialism Dialectics Materialism Laws of economic production Historical materialism Mode of production of fundamental significance Inevitability of conflict Capitalism is the final antagonistic form of production Base and superstructure Superstructure is a corollary to economic structure Legal rules reflect the needs of the ruling class Class instrumentalism Law is an instrument of class domination Impossibility of a neutral jurisprudence Jurisprudence as legitimisation State and law The State as the executive committee of the ruling class Jurisprudence assists the State s role The withering away of the State Gradual disappearance of the State Soviet revision of the doctrine Pashukanis Vyshinsky s definition of law 145

27 xxvi Detailed Table of Contents 14.9 Law as fetish A diversion from revolutionary struggle The point is to change society Jurisprudence at the service of the State 146 Summary of Chapter THE SOCIOLOGICAL APPROACH (1): JHERING, EHRLICH, DURKHEIM Sociology and the law Law as a social institution Comte Methodology of sociology Jhering: law as a social mechanism for the balancing of purposes and interests Rules reflect purpose Interests dictate purpose The reconciliation of interests Law aims at equilibrium Purpose is all and purpose is relative Law aims at creating unity from diversity Ehrlich: the centre of gravity of legal development Ehrlich s analysis of norms Norms for decision Norms of conduct The living law The gap between living and positive law Importance of the gap Discovering the living law Living law as an amalgam The Czernowitz experiment Boundless jurisprudence Megalomaniac jurisprudence Durkheim and social solidarity Mechanical solidarity Organic solidarity Division of labour Law as an external index Law indicates social norms Law symbolises morality Law, crime and punishment Durkheim criticised 155 Summary of Chapter THE SOCIOLOGICAL APPROACH (2): WEBER AND POUND Systematisation and sociological jurisprudence Weber: law as legitimate authority 159

28 Detailed Table of Contents xxvii 16.3 The types of legitimate authority Traditional authority Charismatic authority Rational legal authority A systematised view of procedures within legal systems Weber s typology and English law The problem of the Queen in Parliament Pound: the essence of his jurisprudential thought Interests Individual interests Public interests Social interests The balancing of interests A problem of social engineering The process of balancing interests The recognition of new interests Pound s jural postulates Additional postulates 165 Summary of Chapter SCANDINAVIAN REALISM Background and essential features Hägerström Rights as meaningless concepts in themselves Justice a mere evaluation Significance of conditioning Hägerström and word-magic Lundstedt Rights are illusory The law directs justice Olivecrona Rights in terms of feelings of strength Olivecrona s independent imperatives Comparison with commands Significance of immediacy Rules of law Morality is founded by the law Ross Justice as an expression of emotion Significance of legal rules Rights as a psychological reality Criticisms of Scandinavian Realism 174 Summary of Chapter AMERICAN REALISM (1): HOLMES, FRANK, GRAY Philosophical roots of American realism James Dewey 179

29 xxviii Detailed Table of Contents 18.2 The realist approach to jurisprudence Llewellyn Objectivity in investigation Holmes, founder of the American realist movement The life of the law is experience Analysis must exclude moral questions What is the law? The bad man test Consequences require study The bad man s point of view Restraining judicial law-making Holmes and legal theory The essence of Frank s realism The courts and facts Uncertainty in the law The search for certainty Rules as the basis of prediction The significance of prejudices The judicial hunch The unblindfolding of justice Gray and the significance of rules Judicial interpretation State, rules, law Holmes, Frank, Gray criticised Oversimplification The ignoring of the law s certainties Uncertainty 186 Summary of Chapter AMERICAN REALISM (2): LLEWELLYN, SCIENTIFIC PREDICTION Essence of Llewellyn s approach Is and ought Inquiry into results of investigation The problem of rules The operational significance of rules What is the law? Criticism of Llewellyn s formulation Significance of standards Law as institution Law jobs Law job clusters The predictability of law Reckonability Style of judicial reasoning Scientific prediction of the law Schubert Scientific forecasting 193

30 Detailed Table of Contents xxix 19.9 Jurimetrics Systems analysis Cybernetics Computerisation of Judicial decision-making Lawyers and science 195 Summary of Chapter AMERICAN JURISPRUDENCE TODAY (1): RAWLS AND NOZICK The jurisprudence of social justice Rawls: the public conception of justice The original position The veil of ignorance Primary goods The principles of justice as fairness The priority rules The first priority rule: the priority of liberty The second priority rule: the priority of justice over efficiency and welfare Supremacy of the basic liberties The attainment of a just society Credibility of Rawls theory Dworkin s criticism Inherent conflict between the principles of justice A note on Rawls concept of human rights An excursus: Rawls on the question of rights and civil disobedience Nozick s individual libertarianism The state of freedom Just entitlements to property Persons are not means to ends The truly just society The minimal State Unacceptability of the supra-minimal State The protecting agency parable Objections to Nozick s theses Based on inadequate evidence Derivation of fundamental rights ignored The minimal State is impracticable A simplistic approach to reality 207 Summary of Chapter AMERICAN JURISPRUDENCE TODAY (2): DWORKIN, CRITICAL LEGAL STUDIES A radical approach to jurisprudence Dworkin and the natural law The attack on positivism and the concept of law as rules Standards Weights 213

31 xxx Detailed Table of Contents 21.4 Law and morality Judge-made law The judge s balancing function The application of rules and principles Rights Abstract and concrete rights Finding new rights Trump rights Extending law s empire Critical Legal Studies: the background A radical movement The influence of radical philosophy The stance against liberalism Law and fetishism Objections to the consensus model Social sciences as sources of false values Legal theory as reification CLS and Marxism Opposition to formalism Politics and law are virtually conterminous Criticism of legal education CLS and legal reasoning Dworkin and CLS Criticism of exploration of contradictions CLS and earlier American realism Altman s reply to Dworkin 220 Summary of Chapter LAW AND MORALITY: THE HART-DEVLIN DEBATE Background to the debate Korkunov on law and morality J S Mill on law and morality Post-war concerns Occasion for the debate Philosophy of the Wolfenden Report Devlin s rejection of the philosophy of Wolfenden Hart s reaction Devlin s questions Devlin s answers Hart s response Unsound basis of Devlin s axioms No seamless web of morality Sexual morality and subversive activities A grotesque comparison Exaggeration in Devlin s claims Punishment for sexual misdemeanour Hart s caution to legislators What is general morality? Dangers of populism 230

32 Detailed Table of Contents xxxi 22.9 The debate continues A footnote by Dworkin 231 Summary of Chapter PROBLEMS OF RIGHTS (1): ESSENTIAL FEATURES Rights as the essence of law Rights as claims Becker s comments Rights as interests Rights formally defined The characteristics of a right Rights as equivalent to duties Types of right Hohfeld s analysis of rights Right in context Definitions Jural relations Hohfeld criticised The concept of fundamental human rights Universal Declaration of Human Rights European Convention on Human Rights The overriding of rights Cancellation by the State Need for security Restrictions on free speech Restrictions in ECHR Human rights and the common good 244 Summary of Chapter PROBLEMS OF RIGHTS (2): CHILDREN S RIGHTS, ABORTION, ETC Recent concerns Contemporary legal thinking on the nature of children s rights Recent examination of juristic thinking in relation to the edges of life International recognition of children s rights A new look at children s rights and parental responsibility: the Gillick case (1986) House of Lords Lord Scarman s speech Dworkin s Life s Dominion (1993) RoevWade(1973) The paradigm liberal position concerning abortion The situation in the UK Opposition to abortion Opposition of feminists to Roe v Wade 252

33 xxxii Detailed Table of Contents 24.7 What is sacred? Dworkin s plea for a measure of agreement The right to an easy death Deciding about dying The deliberate withdrawal of medical aid leading to death Court of Appeal House of Lords The broader issues The continuing opposition to legalised euthanasia The desirability of agreement 256 Summary of Chapter PROBLEMS OF RIGHTS (3): NATURAL JUSTICE The general concept A long-established jurisprudential concept An empty phrase? Problems concerning the adjective natural Growing precision in the meaning of natural justice Natural justice and fairness ECHR The significance of natural justice in procedures for application for judicial review The rule against bias Metropolitan Properties v Lennon (1969) R v Barnsley MDC ex p Hook (1976) R v Altrincham Justices ex p Pennington (1975) The rule against condemning a person unheard Ridge v Baldwin (1964) BvW(1979) R v Thames Magistrates ex p Polemis (1974) R v Secretary of State ex p Hosenball (1977) Natural justice, rights and legitimate expectations Early statement of the doctrine A-G of Hong Kong v Ng Yuen Shiu (1983) R v Secretary of State ex p Khan (1984) CCSU v Minister for the Civil Service (1985) R v Secretary of State ex p Ruddock (1987) Natural justice and the extension of rights 269 Summary of Chapter PROBLEMS OF RIGHTS (4) BILL OF RIGHTS Essence of the problem Recent background The form of a Bill of Rights Rights are too important to be left to oral tradition 276

34 Detailed Table of Contents xxxiii 26.3 The shield of the common law has become less effective Judges would receive much support from a Bill of Rights A Bill of Rights is essential if the UK is to fulfil its growing international obligations A Bill of Rights will provide an assurance of fundamental rights for future generations An example from Canada Background Extracts from the Charter of Rights and Freedoms A comment from an American jurist A question of timing 282 Summary of Chapter CODIFICATION OF THE LAW The problem Definitions Codification and consolidation Codes in history Two early codes Beginnings of modern codification Savigny and codification The French Code Civil The German Civil Code The Swiss Civil Code Arguments in favour of codification Arguments against codification Attempts at codification in the UK The 1965 White Paper The Law Commissions Act Proposed codification of the criminal law A Bill of Rights and codification A continuing jurisprudential problem 296 Summary of Chapter FEMINIST JURISPRUDENCE Background The essence of feminist jurisprudence Schools of feminist jurisprudence The struggle against patriarchy The pervasive nature of patriarchy The weaker vessel : ideology of patriarchy exemplified For him, read him What is to be done? Telling it as it is: the problems of a gendered language The rejection of the formal ideology of equality The rejection of Marxist jurisprudence 307

35 xxxiv Detailed Table of Contents 28.6 Toward the good society Criticisms of feminist jurisprudence 308 Summary of Chapter Envoi 313 Recommended Reading List 315 Index 317

36 Table of Cases Airedale NHS Trust v Bland [1993] 2 WLR A-G v Ryan [1980] AC A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC B v W [1979] 3 All ER Baker v Carr 369 US 186 (1962) BBC v Johns [1965] Ch Bradwell v Illinois 83 US (16 Wall) C v DPP [1995] 3 All ER , Cook v Alexander [1973] 3 WLR Council of Civil Service Unions v Minister for the Civil Service [1985] AC , , , Edinburgh & Dalkeith Railway v Wauchope (1842) 8 Cl & F Factortame Ltd v Secretary of State for Transport [1991] 1 All ER Fowler v Padget [1798] 7 JR Gideon v Wainwright 372 US 335 (1963) Gillick v West Norfolk and Wisbech Health Authority [1986] AC , , Green v Blake [1948] IR HK (An Infant), Re [1967] 2 QB Holt v Markham [1923] 1 KB Hulton v Jones [1910] AC IRC v Rossminster Ltd [1980] AC John v Rees [1970] Ch Jones v Randall (1744) 1 Cowp Kanda v Government of Malaya [1962] AC Knightsbridge Estates v Byrne [1940] AC Knuller Publishing v DPP [1973] AC Lee v Bude & Torrington Railway Co (1871) LR 6 CP Liversidge v Anderson [1942] AC Lloyd v McMahon [1987] AC Local Government Board v Arlidge [1915] AC Majorpier v Secretary of State for the Environment (1990) 50 P&CR Malloch v Aberdeen Corporation [1971] 1 WLR McInnes v Onslow-Fane [1978] 3 All ER Metropolitan Properties v Lennon [1969] 1 QB Multiservice Bookbinding v Marden [1979] Ch Norwest Holt Ltd v Department of Trade [1978] 3 WLR Open Door Counselling Ltd v Ireland (1993) 15 EHHR Oppenheimer v Cattermole [1976] AC Pearlberg v Varty [1972] 2 All ER Pergamon Press, Re [1971] Ch Prager v Blatspiel [1924] 1 KB

37 xxxvi Table of Cases R v Ahluwalia [1992] 4 All ER R v Altrincham Justices ex p Pennington [1975] QB R v Barnsley MDC ex p Hook [1976] 1 WLR R v Bingham [1973] QB R v Bow Street Magistrates ex p Choudhury [1990] 3 WLR R v Brown [1993] 2 WLR R v Chelmsford Court ex p Birchall [1990] RTR R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR R v Gaming Board ex p Benaim [1970] 2 QB R v Ghosh [1982] 3 WLR R v Gomez [1991] 3 All ER R v Killen [1974] NI R v Lemon [1979] AC R v Morris [1984] AC R v Nottingham Crown Court ex p Brace [1990] 154 JPN R v O Connell (1992) 94 Cr App R R v Ponting [1985] Crim LR R v Secretary of State ex p Hosenball [1977] 1 WLR R v Secretary of State ex p Khan [1984] 1 WLR R v Secretary of State ex p Ruddock [1987] 1 WLR R v Secretary of State for the Home Department ex p Blind [1991] 1 All ER , R v Secretary of State for the Home Department ex p Thirukumar (1989) COD R v Sussex Justices ex p McCarthy [1924] 1 KB R v Thames Magistrates ex p Polemis [1974] 1 WLR Reading v A-G [1951] AC Reid v UK (1984) 6 EHRR Riggs v Palmer 115 NY 506 (1899) Reid v UK (1984) 6 EHRR Ridge v Baldwin [1964] AC , , Riggs v Palmer 115 NY 506 (1899) Roe v Wade 410 US 113 (1973) , 24.6 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch Second City v Secretary of State for the Environment (1990) 61 P&CR Shaw v DPP [1962] AC Sigurjonsson v Iceland (1993) The Times, July 27th Street v Mountford [1985] AC Teare v O Callaghan (1982) 4 EHHR Telnikoff v Matusevitch [1991] 3 WLR Thornborough v Baker [1675] 3 Swans Union Bank of Scotland v National Bank of Scotland (1886) 14R (HL) Valentini v Canali [1889] 24 QBD