Recording-2025-02-27T14:06:26.097Z

Introduction to Jurisprudence

• Jurisprudence: A branch of philosophy concerning recognition and impact of law on society.

• Major questions addressed: How laws are made, what makes them valid or invalid, and the relationship between rules, morality, and justice.

• Importance for law students: Understanding what law is, why it exists, and what it should be.

Major Strands of Jurisprudence

Natural Law Theory

• Definition:

  • Not to be confused with the law of nature; it draws from human nature’s constants.

  • Aims to create rules that align with moral and ethical concepts.

• Key Characteristics:

  • Intersection of law and morals.

  • Standards outside human-made laws guide what is to be considered law.

• Obligations:

  • Rules failing to align with moral standards are not law and are not obliged to be followed.

• Historical Roots:

  • Concepts trace back to ancient Rome and Greece.

  • Cicero’s view: Universal justice guides human action; unjust laws lack authority.

• Christian Influences:

  • Introduced notions of eternal law and divine will (Thomas Aquinas).

  • Distinction between natural law and divine law.

• Fundamental Principles:

  • Principles known through right reason and must be universally binding.

  • Natural laws stem from various sources, including human nature and divine intention.

• John Finis’ Seven Basic Goods:

  • Life, knowledge, play, beauty, friendship, practical reasonableness, religion.

• Summary:

  • Unchanging principles of law exist in nature and govern actions, accessible through reason.

  • Human-made laws must derive from these natural principles.

Legal Positivism

• Key Figures:

  • Jeremy Bentham:

    • Founder of British utilitarianism.

    • Defined law as declarations of the sovereign's will, with penalties for non-compliance.

  • Hans Kelsen:

    • Law as statements supported by norms and sanctions.

  • John Austin:

    • Defined law as a command from a sovereign, necessary communication, and sanctions.

  • HLA Hart:

    • Clarified that law must adhere to established procedures, emphasizing rule of recognition.

• Characteristics:

  • Law viewed independently from morality.

  • Accepts unjust laws as law if created through established society practices.

  • Examples illustrate the tension between legal positivism and natural law views.

Feminist Jurisprudence

• Focus:

  • Examines male dominance in law and its effects on gender roles.

• Liberal Feminism:

  • Advocates equal treatment of men and women under the law.

• Sameness vs. Cultural Feminism:

  • Sameness: Differentiating between men and women leads to discrimination.

  • Cultural: Advocates for recognition of women’s unique experiences and societal connections.

• Catherine McKinnon:

  • Highlighted sexual harassment as a discrimination issue.

  • Stresses that gender inequality is fundamentally a political issue needing a voice for women.

Economic Analysis of Law

• Concept:

  • Applies economic theory to assess efficiency of legal rules.

• Key Assumptions:

  • Law aims for maximum societal satisfaction and efficiency.

  • Laws tested on economic grounds rather than moral ones.

Critical Legal Theory

• Key Questions:

  • Evaluation of law’s relationship with its context: social, political, economic.

  • Investigation of law’s neutrality regarding power relations.

• Themes:

  • Legal materials do not completely dictate outcomes; influenced by various constraints.

  • Law as politics: legal decisions intertwined with political context.

  • Focus on the individual as embedded within social structures; autonomy questioned.

Conclusion

• Overview of jurisprudence and theories studied:

  • Natural law theory emphasizing moral conformity.

  • Legal positivism showcasing law as it exists without moral ties.

  • Feminist jurisprudence reflecting gender perspectives and inequalities.

  • Economic analysis focusing on efficiency over morality.

  • Critical legal theory examining law's political dimensions.