Juris handouts


Internal point of view
Natural law theory
Adjudication (gaps in the law)
Moral obligation to obey the law
Moral limits of law
The rule of law
Methodology (what makes a theory of law successful)

Approaching Juris questions

Some sample temptations to avoid...

2010 paper, q. 4:
'When it comes to the question of the existence or scope of a moral obligation to obey the law, there need be no difference of opinion between legal positivists and natural lawyers.' Do you agree?

TEMPTATION: Obligation to obey question! Yay! I'll rehearse Raz's argument why there is no general prima facie obligation to obey. Mmmm... how can I link this to positivism v natural law? Well, Raz says he's a positivist, and he disagrees with Finnis, who is a natural lawyer. So I will disagree with the statement: there is a difference of opinion between positivists and natural lawyers on the obligation to obey question.

CORRECT THINKING: This question is as much about positivism and natural law, as it is about the obligation to obey debate. I am asked to consider these two debates and whether there is a connection between them. In other words: do positivists necessarily have to adopt one position on the obligation to obey debate, and do natural lawyers necessarily have to adopt the opposite position? I should begin by clarifying what I think the distinction between positivism and natural law is (and this is a very very contentious question). So, although I had prepared to defend Raz's position on the obligation to obey debate, I won't be writing about this after all.

2010 paper, q. 7:
Is there truth in the proposition that a theory of law informs every judicial decision?

TEMPTATION: This must be a Dworkin question. Hence it must be asking whether law always determines every judicial decision. I'll explain the early Dworkin on rules and principles, then the later Dworkin on the interpretive judgment, and I will disagree with him and defend Hart on the issue of judicial discretion.

CORRECT THINKING: The question is whether a theory of law informs every judicial decision. This is not - directly - a question about discretion. It is about Dworkin's famous claim that every judicial decision relies on a theory of law (which is its "silent prologue"), hence judges must also be legal theorists, however implicitly. I should critically discuss why Dworkin thinks that theory of law and adjudication are continuous (he says that judicial decisions presuppose a stance about the grounds of law, and a stance about the grounds of law is a matter of political morality, the very thing sound legal theory is about [e.g. why we should treat yesterday's decisions of Parliament as warrants for the use of state coercion today]). Oh, yes, there are criticisms of this: Endicott, Finnis, Gardner, Raz... (legal obligation v moral obligation, sound legal theory is descriptive,
"law" v "the law", etc.). But I really wanted to talk about discretion! Well, perhaps I can build it in: after all, Dworkin thinks that a stance about the grounds of law not only determines decisions in easy cases but also (and most palpably) in hard cases, i.e. where the 'sources' (past political decisions) run out.

2010 paper, q. 8:
'The coercive dimension of the legal system is as important in private law as it is in criminal law.'
Do you agree?

TEMPTATION: Ah-ha! Hart versus Austin. Austin said that all laws had sanctions, so he thought coercion was equally important in criminal and in private law. Hart said that Austin was wrong to neglect power-conferring rules, which do not impose sanctions but provide facilities. Private laws are power-conferring laws. Hence, the coercive dimension of law is less important in private law, as Hart showed. I'll disagree with the statement.

CORRECT THINKING: What is meant by coercive dimension? (Does it just mean whether laws have sanctions, or whether sanctions are decisive to people's motives? Or something else?) Is all of private law power-conferring? Are all power-conferring laws private? No and no. Private law (contract, tort, trusts...) is made up of both duty-imposing and power-conferring laws (e.g. the powers to make a contract, and the duties acquired by the parties once the contract has been made). So does public law (admin, constit... even crim).  That's because duties and powers are always interrelated: powers are the tools to create or change duties. Hence the criminal/private distinction is not the duty/power distinction, and hence I need to do something more than just rehearse Hart's criticism of Austin.

2010 paper, q. 10:
Should legal systems be understood as having authority? Should they be understood as claiming authority?

TEMPTATION: Authority! Yippie! I'll explain Raz and say that he's right, and that Wolff is wrong: authority is compatible with autonomy. Since Raz also says that the law claims authority, that's the correct view too.

CORRECT THINKING: I had hoped to write about authority and autonomy, but this question is not about it (at least not directly). WHat is it to 'have authority'? Raz isn't clear on the matter (that's probably why this is being asked). It could mean "de facto authority" or "legitimate authority". Certainly legal systems should not be understood as all having legitimate authority (they only have legitimate authority under certain conditions). But Raz says that all legal systems have de facto authority. I'll critically discuss what Raz means by de facto authority. As for the claim, that too is a controversial idea of Raz. It's not at all obvious that legal systems make claims. That's a personification: the law can't speak, it doesn't have a human voice. I'll critically consider how Raz supports his proposition that legal systems make a moral claim. Perhaps I'll conclude that his grounds for making this proposition are shaky - which would be funny, given how central this proposition is to his whole theory! (exclusive legal positivism and all...)

2010 paper, q. 15:
Is it necessary to have a legal system so as to achieve coordination between people? Is the ability to provide solutions to coordination problems an important characteristic of all legal systems?

TEMPTATION: That's about Finnis. I'll explain that he thinks the law is for the common good, and somehow related to the seven basic goods, and that unless we coordinate we will collide on the roads, etc.

CORRECT THINKING: I must do various things here. First, I should give a technical definition of coordination problem (not just treat it as a synonym for 'collective action' or 'organized behaviour'). Secondly, I should assess whether the law is necessary to achieve that: hence, I should consider if things other than the law (custom, convention, propaganda...) could achieve coordination equally well. Perhaps I will conclude that the law is necessary (so Green is wrong about this). Thirdly, I must ask whether this means that coordinating is an important characteristic of all legal systems. For it could be that legal systems are necessary to achieve coordination, but that this is not an important characteristic of them all. (Similarly, it could be that legal systems are necessary to achieve pollution, but that this isn't an important characteristic -- but just a side-effect or by-product -- of all legal systems.) So I must ask what counts as an "important characteristic" of a legal system. And then see whether coordination is one.

2010 paper, q. 16:
'Given the multiplicity of aims that the criminalisation of conduct can serve, it is impossible to establish that it would never be legitimate to criminalise harmless conduct.' Discuss.

TEMPTATION: Moral limits question! Is it ever legitimate to criminalize harmless conduct? The harm principle says no. The quotation suggests that it's impossible to establish that the harm principle is always true: it could sometimes be legitimate to criminalize harmless conduct. I'll disagree with the quotation, and defend the harm principle: it is always illegitimate to criinalize harmless conduct. So I'll discuss Mill, then Raz's improvement, and criticize Devlin and Feinberg's offence principle in the process.

CORRECT THINKING: The quotation presents a piece of reasoning: given that X, Y must follow. I am being asked to consider whether this reasoning is tight. So I'm not just being asked whether Y is true. I am being asked whether Y follows from X. The quotation is saying: because the criminal law can serve many aims, there may be exceptions to the harm principle. To discuss this, I must first unpack what is meant by the first half of the quotation... the criminal law can serve many aims... is this just descriptive? Or does it mean legitimate aims? Probably the latter, since the second half of the quotation deals with what is legitimate. Is it true that there are many legitimate aims of criminalization? I thought the harm principle was justified by the aim of autonomy. Are there other legitimate aims of criminalization? If so, do they compete with autonomy? Or are they just part of the aim of autonomy? Or do they coexist with the aim of autonomy? If they coexist with autonomy, and they require criminalizing harmless conduct, then the quotation might be right.