Jurisprudence 3rd Edition by Suri Ratnapala ISBN 1316621170 978-1316621172

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ISBN 10: 1316621170
ISBN 13: 978-1316621172
Author: Suri Ratnapala 

The third edition of Jurisprudence offers a logically structured, comprehensive, well-researched and accessible overview of legal theory and philosophy. Written primarily for undergraduate students, it examines and demystifies the discipline’s major ideas, and promotes a richer understanding of the social, moral and economic dimensions of the law. By locating the major traditions of jurisprudence within the history of ideas, the author deepens students’ understanding of the perennial debates about the nature and function of law and its relation to justice. Fully revised and updated, with new materials on all topics, Suri Ratnapala’s Jurisprudence remains an essential text for students and researchers of jurisprudence and legal theory.

Jurisprudence 3rd Table of contents:

Part 1 Law as it is

2 British legal positivism: Philosophical roots and command theories

Positivism and logical positivism

Positivism

Logical positivism

Nature of scientific knowledge

Legal positivism

Scientific, normative and hybrid theories of legal positivism

Legal positivism and legal realism

A continental beginning

Thomas Hobbes and Leviathan

Jeremy Bentham: law and the principle of utility

Bentham’s definition of law

Source of law – the sovereign within a state

The will of the sovereign

Subjects and objects of a law

Forms of law

Parts of a law

Bentham’s contempt for the common law

John Austin’s command theory of law

Austin’s utilitarianism

Austin’s respect for the common law

Austin’s taxonomy

Laws properly so called and positive law

Laws improperly so called

Austin’s positive law

Sovereign

1. The sovereign is a determinate human superior

2. The bulk of the people habitually obey the sovereign

3. The sovereign is not in the habit of obedience to any other human superior

4. The sovereign’s power cannot be legally limited

5. Sovereignty is indivisible

The problem of the sovereign in representative democracy

Command, duty, sanction

Law and morality

Austin’s achievement

Recommended further reading

3 Herbert Hart’s new beginning and new questions

Rules and obligations

Obligation

Rules and commands

External and internal aspects of a legal rule

Nature of rules: the element of uncertainty

Primary and secondary rules of obligation: emergence of a legal system

The rule of recognition

Some questions concerning the concept of the rule of recognition

Courts and the rule of recognition

Public opinion and the rule of recognition

Developed legal systems without a rule of recognition

International law

Law and morality

British positivism’s contribution to jurisprudence

Recommended further reading

4 Germanic legal positivism: Hans Kelsen’s quest for the pure theory of law

From empiricism to transcendental idealism

From transcendental idealism to the pure theory of law

Law as norm

Nature of norm

Commands, authorisations and permissions

Legislation, legal norm and statement of the law

Distinguishing legal and moral norms

Legal order as a coercive order

Legal order is a dynamic order

Validity and the basic norm

Basic norm of customary law systems

Logic of presupposing the basic norm

Effectiveness and validity of the basic norm

Logical unity of the legal order and determining whether a norm belongs to the legal order

Membership of a legal order

The criticism of Joseph Raz

Legitimacy and revolution

Revolution

Consensual revolution

Revolution by use of force

Effects of revolution on existing law

An attempted revolution fails and the existing basic norm is unchanged

The revolution succeeds and a new basic norm is established

The revolutionary struggle is in progress and there is uncertainty about the basic norm

1. Existing non-political law

2. Non-political law enacted by the rebel regime

3. Political law enacted by the rebel regime

The old legal order is restored after the initial success of the revolution

International law

Logical unity of national and international law

Does unity result from the primacy of international law?

Does unity result from the primacy of national law?

An evaluation of the pure theory of law

Purity of Kelsen’s theory

Given that the content of Norm L is identical to the content of Norm M, is there a special moral dut

Is there a general moral duty to obey a valid legal norm?

Separation of law from fact

Explanatory limitation of the pure theory

Alternative concepts of legal systems

Recommended further reading

5 Realism in legal theory

Legal formalism and legal positivism

American realism

A few general comments

Oliver Wendell Holmes Jr and the birth of American realism

The evolutionary character of law

Judicial role in legal evolution

Judicial legislation and the certainty of the law

Law as prophecy: the trouble with the ‘bad man’ point of view

Karl Llewellyn and the Grand Style

Rules and discretion

Law and morality

Distrust of rules as descriptions of what courts do

Law reform

The Grand Style

Fact sceptics

Effects of prejudice

Dissolution of the rule–fact distinction

The legacy of American legal realism

Scandinavian realism

Hägerström and the mystical force of law

Inadequacy of Hägerström’s theory

Hägerström’s follower: Karl Olivecrona

The binding force of law

The content of a rule of law

Force and the effectiveness of law

Morality and law

Alf Ross’ revision of Scandinavian realism

Norms

Legal rules

Assessment of Scandinavian realism

Recommended further reading

Part 2 Law and morality

6 Natural law tradition from antiquity to the Enlightenment

Law of nature, natural right and natural law

Law of nature

Natural rights

Natural law

Two great questions in natural law theory

Discovering natural law

The effect of natural law on rulers and subjects

Fusion of law and morals in early societies

Natural law thinking in Greek philosophy

Teleology

Deciding what is natural: the Sophist challenge

Role of wisdom

Plato’s natural law

Plato’s essentialism

Plato’s just state

Aristotle’s intellectual virtues

Reception of natural law in Rome

Christian natural law

Saint Augustine of Hippo

Saint Thomas Aquinas

Eternal law

Natural law

Divine law

Human law

The effect of unjust human laws

Theological beginnings of a secular natural law

The Conciliar Movement

The School of Salamanca

Francisco de Vitoria and universal human rights

Natural law and economics

The rise of secular natural law: natural rights and social contract

Enlightenment, empiricism and natural rights

Hugo Grotius

Thomas Hobbes

Samuel von Pufendorf

John Locke

Natural rights in Kant’s moral philosophy

Natural rights and common law rights

Legacy of the natural rights theorists

Recommended further reading

7 John Finnis´ restatement of classical natural law

Finnis’ defence of classical natural law

Basic values

Self-evidence

Marriage as a basic good

Deriving moral rules from basic values: the requirement of common good

Deriving moral rules from basic values: practical reasonableness

Practical reasonableness and consequentialism

What is law?

Duty to obey the law

1. Empirical liability to sanction in the event of disobedience

2. Legal obligation in the intra-systemic sense

3. Legal obligation in the moral sense

4. Moral obligation deriving not from legality but from a collateral source

A return to divine natural law?

MacIntyre’s plea for the revival of teleology

God in Finnis’ theory

The enduring legacy of natural law theory

Recommended further reading

8 Separation of law and morality

Lon Fuller on the morality of law

Historical roots of Fuller’s theory: the closing period of the Nazi regime in Germany

The Radbruch doctrine

Hart’s criticism

Fuller’s response: the morality that makes law possible

Moral basis of law: external and internal moralities of law

Law is a purposive, reciprocal and ongoing enterprise

Internal morality of law

The internal morality of law is morality of duty and of aspiration

Hart’s rejoinder

Fuller’s counter

The connection of internal and external moralities

Ronald Dworkin and the integrity of law

Beginning of Dworkin’s legal philosophy: the rights thesis

Principles and policy

Dworkin’s concept of law

Justification for the use of force

Law as integrity

Integrity and interpretation of statutes

Pre-interpretive stage

Interpretive stage

Post-interpretive stage

Law as a chain novel

Law and morality in Dworkin

Recommended further reading

Part 3 Social dimensions of law

9 Sociological jurisprudence and sociology of law

Sociology, sociology of law and sociological jurisprudence

Sociology

Positivist sociology

Interpretive sociology

Sociology of law

Sociological jurisprudence

Society and class struggle: the sociology of Karl Marx

Hegel’s influence

Historicism of Karl Marx

Max Weber and the rationalisation of the law

Spontaneous emergence of norms

From irrational adjudication to judge-made law

Emergence of legislation

Arrival of lawyers

Tension between formal rationalisation and substantive rationalisation

Law and economics

Law and social solidarity: Emile Durkheim’s legal sociology

Division of labour as the cause of social solidarity

Law in the sociological sense

Mechanical and organic solidarity

Mechanical solidarity

Organic solidarity

Anomic division of labour

An evaluation of Durkheim’s sociology of law

The living law: the legal sociology of Eugen Ehrlich

Society as an association of associations

Legal norm and legal proposition

Legal norm and norm for decision

State and state law

Ehrlich’s contribution to the sociology of law

Roscoe Pound and law as social engineering

Task of the legal order

What are interests?

The principle or measure of valuing and adjusting competing interests

Pound’s worth

The achievements of the sociological tradition

Recommended further reading

10 Radical jurisprudence: Challenges to liberal legal theory

Liberalism and liberal legal theory

Kinds of liberalism

Liberal legal theory

1. Law is a public good

2. The rule of law is necessary for liberty

3. The rule of law is possible

Law must be knowable

Facts must be ascertainable

The making of law must be separated from the application of law

4. The political institutions of liberalism protect liberty and the rule of law

Challenge of the critical legal studies (CLS) movement

Fundamental contradiction

Alienation by categorisation and reification

Denial of the value neutrality of law

Alternative legal world of CLS

What CLS achieved

Postmodernist challenge

Roots of postmodernist philosophy

The nature of the problem

The challenge to liberal legality

Deconstruction and the law

The mystical foundation of Derrida’s theory

Categorisation and survival

Law and language game theory

Foucault’s theory of power and domination

Radical feminist jurisprudence

Liberalism and women

Liberal feminist jurisprudence

Cultural feminism

Radical feminism

Postmodern feminism

Challenges to liberal jurisprudence: concluding thoughts

Recommended further reading

11 Economic analysis of law

Background and basic concepts

Cost, price, value, utility

Methodological individualism

Economic efficiency

Wealth and wealth maximisation

Transaction costs and the law

The problem of initial entitlements

Efficiency reasons

Distributional reasons

Other justice reasons

Protection and regulation of entitlements

Property rules and liability rules

Inalienability rules

Choosing between property rule and liability rule

Efficiency of the common law hypothesis

Judicial neutrality promotes efficiency

Evolutionary explanation of common law efficiency

Efficiency, wealth maximisation and justice: some criticisms of the Coasean analysis

The problem of disequilibrium

The moral dimension

Public choice theory: the economics of legislation

Kinds of law

Logrolling

Rent seeking

Importance of economic analysis of law

Recommended further reading

12 Evolutionary jurisprudence

Introduction

The need for an evolutionary jurisprudence

Argument from design versus the principle of the accumulation of design

The common law beginnings and the Darwinians before Darwin

Mandeville’s Fable of the Bees

Hume’s evolutionary view of society and law

Adam Smith and original passions

Ferguson’s theory of unconscious rule following

Summary

Eighteenth-century evolutionism compared with the German historical approach

The Austrian school and spontaneous order

Hayek’s restatement of evolutionary theory

Kirzner and market evolution

Scientific explanations

Role of purposive action in legal evolution: the contribution of institutional theory

JR Commons and artificial selection in legal evolution

Evolution of organisations

Evolution of commercial law

Evolution of liability rules concerning tort and crime

Pathways of legal evolution: the lessons from new institutionalism

Normative implications

Recommended further reading

Part 4 Rights and justice

13 Fundamental legal conceptions: The building blocks of legal norms

Bentham and the classification of legal mandates

Liberties and powers

Liberty 1: Where liberty does not affect any other person

Liberty 2 (power): Where liberty affects the rights of another

Corroborated and uncorroborated liberties and powers

1. The law does not assist in the exercise of power

2. Law imposes a duty not to oppose the exercise of power

3. Law imposes a duty not to oppose and also a positive duty to assist

Hohfeld’s analysis of jural relations: the exposition of fundamental legal conceptions

Jural correlatives

Jural opposites

Jural contradictories

The interconnectedness of the fundamental legal conceptions

Each legal relation is a relation between two individuals concerning a single action or omission

Right–duty correlation

Liberty–no-right correlation

Power–liability correlation

The special meaning of liability

Change of legal relations by natural causes and by the exercise of legal powers

Do unlawful acts involve the exercise of Hohfeldian power?

Kinds of powers

Immunity–disability correlation

Connecting the two ‘boxes’ in Hohfeld’s system

Some logical puzzles in Hohfeld’s system

Are there duties that do not correlate to rights?

Liberties without rights

Is liberty divisible?

The value of Hohfeld’s system

Recommended further reading

14 Justice

Justice according to law and justice of the law

Justice as virtue

Platonic justice

Aristotle’s theory of justice as virtue

Universal and particular justice

Distributive and rectificatory justice

Political justice

Aristotelian justice in contemporary democracy

Legal justice

Substantive legal justice

Procedural legal justice

Procedural due process

Substantive due process

Distributive justice as social justice

Distributive justice and legal justice

Distributive justice and equality

Distributive justice and social security

Justice as just desert

Justice as fairness: Rawls’ theory of justice

Why distribute at all?

The new social contract: two principles of justice

The meaning of the Second Principle

Fair equality of opportunity

The difference principle

Priority of basic liberties

Entitlement theory of justice: Nozick’s response to Rawls

The night-watchman state

Entitlement theory of justice

Nozick’s criticism of Rawls’ theory of justice

The principles that people settle on in the original position are not necessarily fair

The problem of procedural principles in Rawls

Immorality of taking natural assets into account

Nozick and social security

Evolutionary theory of justice

Hume’s theory of justice

Passion, experience and the moral sense

Justice – the foundation of social order

Coevolution of society and its rules of justice

Fundamental rules of justice

Adam Smith on justice

Original passions and the role of sympathy

The impartial spectator

Emergence of the rules of justice

The central implications of the evolutionary view of justice

Recommended further reading

References

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