Topic 3: Legal Positivism

- The validity of any can be traced to an objectively verifiable source

- Legal positivism rejects view of law exists independently from human enactment
- A philosophy of law that emphasizes the conventional nature of law—that it is
socially constructed. According to legal positivism, law is synonymous with positive
norms, that is, norms made by the legislator or considered as common law or case
law.
Types Explanation Key Features

Classical Classical legal positivism -Separation thesis: This is the

is a school of thought in idea that law and morality are
the philosophy of law that conceptually distinct. A law can
asserts that laws are rules be legally valid even if it is
made by human beings morally reprehensible.
and that there is no
inherent or necessary -Social fact thesis: This posits
connection between law that legal validity is a function of
and morality certain social facts. For example,
a rule is a law if it is enacted by
the legislature or decided by a
judge.

Modern More nuanced and -Incorporation thesis: This is

complex version of the the idea that legal systems can
classical school. It incorporate moral principles into
maintains the separation their systems, and these
of law and morality but principles can then become
also acknowledges that criteria for legal validity.
moral principles can
influence the creation and - Discretion thesis: This posits
interpretation of laws. that judges have a certain
amount of discretion in deciding
cases, especially when the law is
vague or indeterminate.
John Austin
- Student of Jeremy Bentham
- Utilitarianism = law should be for the greatest good of the greatest number of people
- Believed law & morality were separate
- Law could reflect moral values and still be valid even if they were no connection or
contradict them
- Juris = focusing on positive law which is law set by those in power for those under
them

1. Command Theory of Law

- The essence of law lies in the command of a sovereign backed by sanctions.
According to him, a law is essentially a directive or command issued by a recognized
political authority, and its legitimacy is derived from the sovereign's ability to enforce
it through sanctions.
Laws Properly (command theory of law)
God’s laws Human’s laws

2. Sovereign Authority
An individual or body that is habitually obeyed by the majority of the population but does
not habitually obey any other earthly authority. The sovereign is the ultimate law-making
authority in a given jurisdiction, and its commands are not subject to any higher authority.

3. Positive Law
Laws set by political superiors for political inferiors. He argued against confusing
positive law with other concepts that might resemble or be analogous to law.

4. Analytical Approach
Laws should be systematically categorized and analyzed to understand their nature and
functions better.

5. Separation of Law and Morality

There is no necessary connection between law and morality. Laws, according to him, it
could be moral, immoral, or amoral. Their validity does not depend on their moral content
but on their source and the sovereign's ability to enforce them.
Criticism
1. Command
Customary Law Not all laws are the result of explicit commands issued by a
sovereign. Customary laws, which evolve over time based on
longstanding practices and traditions, do not fit Austin's
command-based definition

Silent Laws Some laws may exist without being explicitly commanded. For
instance, the absence of a law or a legal vacuum can still have
legal implications and consequences

2. Sovereign
Decentralised Multiple authorities may have law-making powers, challenging
Legal Systems the idea of a single sovereign authority

International Law International law operates without a single sovereign authority,

yet it is still considered law by many legal scholars

3. Sanctions
Unenforceable Not all laws are effectively enforced through sanctions. Some
Laws laws may exist but lack effective enforcement mechanisms,
raising questions about their status as "law" according to
Austin's theory

Social or Moral Not all legal rules are backed by formal legal sanctions. Social
Sacntions or moral pressures may also enforce compliance with certain
rules or norms, complicating Austin's focus on legal sanctions

4. Board Scope of Law

Incorporation of Critics challenge Austin's strict separation of law and morality
Morality by pointing out that many legal systems incorporate moral
principles or values

Flexible and Legal systems are dynamic and can evolve over time, adapting
Evolving Nature to social, cultural, and technological changes. Critics argue that
Austin's static and formalistic approach fails to capture this
complexity
Jeremy Bentham
- Elements of classical legal positivism:
o Distinction between law (fact) from what ought to be the law (value)
o Separation of morals and law
o Law as command of sovereign

Main Principles
- Legal fictions and natural law are absurd, natural rights are just personal opinions
disguised as law
- People should refer to the book to acquaint themselves from the legal implications
within the realm of human behaviour
- Laws can be commands of sovereign even without sanctions

Principle of Utility (Utilitarianism)

- Actions should be judge based on their consequences and the morally right action is
the on that produces the greatest amount of happiness for the greatest number of
people
- Hedonistic Calculus
 Method for calculating the moral worth of actions
 Pleasure and pain can be measured quantitatively and the moral value of an action
could be determined by considering factors of intensity, duration, certainty

Universalism
- Principle of utility should apply universally, meaning that it should guide individual
actions as well as the formulation of laws and social policies. He argued for the
importance of creating systems of legislation that promote the greatest happiness for
the greatest number of people.

Egalitarianism
- focuses on maximising overall happiness, he also advocated for the equal
consideration of interests. This means that each person's happiness or suffering should
count equally in the calculation of utility, regardless of their social status or other
factors.

Social Reform
 - Believed that utilitarian principles could be used to improve society. He advocated for
various reforms, including the abolition of slavery, prison reform, and the reform of
laws related to sexuality and morality.

Modern Legal Positivism

- 3 main claims:
 The separability thesis. It denies the existence of necessary moral constraints
on the content of law.
 The pedigree thesis. It articulates necessary and sufficient conditions for legal
validity in respect of how or by whom law is promulgated.
 The discretion thesis. It asserts that judges decide hard cases by making new
law.

Hans Kelsen
- Laws are known as ‘norms’ and each norm are governed and legitimised by a higher
norm, which eventually leads to a basic norm known as ‘Grundnorm’.
- Grundnorm = a concept introduced by legal philosopher Hans Kelsen. It refers to the
fundamental norm or basic legal principle upon which an entire legal system is
founded.
- 2 postulates from system of norms:
 Every two norms that ultimately derive their validity from one basic norm
belong to the same legal system
 All legal norms of a given legal system ultimately derive their validity from
one basic norm.

Hart
- Law is a social phenomenon, and that it can only be understood and explained by
reference to actual social practice of a community
- Disagree with Austin of the source of law is the sovereign bcs even members of
legislatures and kings are obliged to follow the law
- Rules are needed by community to survive:
Human Vulnerability Refers to the inherent susceptibility or fragility of human
beings. Humans are prone to various risks and dangers, both
internally and externally. Rules are needed to protect
individuals from harm and to ensure their well-being in light
of this vulnerability.

Approximate Equality Within a community, there exists a rough equality among

individuals in terms of their basic needs, rights, and
opportunities. Rules are necessary to maintain this balance
and prevent any one individual or group from dominating or
exploiting others.
Limited Altruism Refers to the selfless concern for the well-being of others.
However, Hart acknowledges that altruism is limited in
human nature; people may not always act in the best interests
of others. Therefore, rules are required to encourage or
enforce behaviour's that benefit the community as a whole,
even when individuals may not naturally prioritize such
actions.
Limited Resources Communities typically have finite resources that need to be
distributed and managed effectively to ensure everyone's
needs are met. Rules are essential for regulating access to
resources, preventing hoarding or wastefulness, and
promoting fair distribution.

Limited Understanding Highlights the cognitive and motivational limitations of

and Strength of Will individuals within a community. People may not always fully
understand the consequences of their actions or may lack the
willpower to act in accordance with what is best for the
community in the long term. Rules serve as guidelines and
incentives to steer behavior in desirable directions,
compensating for these limitations.

- Social rule
Social Rule
Moral Rules Legal Rules

Primary Rules Secondary Rules

- Substantive Rules of Change

laws Rules of
Adjudication
Rules of
Recognition

Conditions:
 (i) Valid obligation rules must be obeyed by
members of the society
(ii) Officials must accept the rules of
change, rules of adjudication and rules of
recognition

Topic 4: American Realism

- American legal realists described as rule sceptics and fact sceptics
- They believe not in what the law says it is but what the law does. Emphasis on law in
action instead of law in the books
- Key elements:
Judicial Decision-Making Legal realists argue that judicial decisions
are frequently influenced by factors outside
of the formal statutes and legal principles.
These may include judges' personal values,
societal conditions, economic
considerations, and psychological factors.

Pragmatism Realists emphasise the real-world effects of

law and believe that law should be assessed
based on the outcomes it produces rather
than merely its doctrinal purity or its
alignment with existing legal codes

Critique of Formalism Realists challenge the notion of legal

formalism, which holds that judicial
decisions can be deduced logically from
established rules without regard to social
interests or public policy. Realists argue that
law is not a science and cannot be applied
with the mechanical objectivity suggested
by formalists.

Empirical Methods Realists often employ empirical methods to

study how laws actually function in society,
advocating for a more scientific approach to
understanding law, one that takes into
account behavioural and social sciences.

Influence on Legal Practice The realism movement has significantly

 influenced legal education and practice,
particularly in how it encourages looking
beyond the letter of the law to consider
broader social realities when interpreting
legal issues.

Brian Leiter
- Judges respond primarily to the stimulus of facts
- Decisions are reached on the basis of a judicial consideration of what seems fair on
the facts of the case, rather than on the basis of the applicable legal rule.
- 3 elements:
 In deciding cases, judges react to the underlying facts of the case whether or
not the facts are relevant by virtue of the applicable rules.
 The legal rules and reasons generally have little or no effect, especially in
appellate decisions.
 Advanced the ‘core claim’ in the hope of reformulating rules to render them
more fact-specific

Jerome Frank
- 2 kinds of realists:
 Rule sceptics: those who doubt that rules decide cases
 Fact sceptics: those who doubt that facts play any role in the decisions of
judges
- Judge only deduce legal conclusions from basic premises (doesn’t make law, only
conclusion of the case)
- Facts a8re what the judge thinks they are

Karl llewellyn
- The action of the judge is the law and it can be more than interpreting the principles.
- Considers statutes and precedents as mere ‘paper rules. Paper rules misdescribe the
reasoning processes judges in fact adopt in reaching their decisions.
- Real rules are from the conduct of the judges, especially appellate judges
- Practical use and effectiveness determined by how they are applied & interpreted.
- A rule sceptic
 There are multiple interpretations that can be adopted by judges
 Appellate judges make a conclusion of what decision they want to arrive at
  Does not believe that there is ‘one right answer’ to every legal question. A
judge is guided by his situation-sense’.
- Functionalism:
 Adjustment of trouble cases
 Preventive channeling of conduct and expectations
 Preventive rechanneling of conduct and expectations to adjust to change
 Allocation of authority and determination of procedures for decision-making
 Provision of direction and incentive within the group
 The job of the juristic method
Grand Style Formal Style
Reasoning informed by policy consideration Reasoning that is logical and formal; seeks
refuge in rules of law
Limitation of the Realist Movement
- Excessive reliance on judges’ determinations to conclude on what is ‘law’
- Omission of the role of government officials’ interpretation of law
- trial courts’ determination is fact-based and there is less use of judicial interpretation
but follow the interpretations of the appellate courts.
- laws are drafted by government drafters who themselves are closely connected to the
government officials.
-

Legal Realism in 21st Century

- In more recent years, artificial intelligence techniques such as machine learning and
deep learning, are being used to advise on judicial decision-making process.
- Past decisions are coded into data format to create statistical models which can give
fairly accurate predictions of judicial decision-making outcomes.
- The statistical approach to studying law has gained traction, especially since the
1980s, aided by the availability of microcomputers and advanced statistical tools.
Topic 5: Sociological Jurisprudence and Sociology of Law
- 3 concepts
Social structure Number of institutions that can form a
social structure which interact to each
other with complexity

Social stratification Political control of a group over another

Social function Institutions and groups may be analysed

from their social function

Emile Durkheim
- what holds society together - 2 distinct forms of social solidarity
Mechanical solidarity Social cohesion in simpler societies where
individuals share similar values and there's
little division of labour

Organic solidarity Strength of group over individual interests

- Society transit from mechanical solidarity to organic solidarity, whereby disputes tend
to be resolved by recourse to restitutive law
- Law plays a central role in the transition from mechanical solidarity to organic
solidarity. Durkheim makes 2 major claims:
Law becomes less penal and more The function of punishment is an expression
‘restitutive’ in character of collective sentiments by which social
cohesion is maintained

Criminal
- There is a relationship between mechanical solidarity and ‘repressive’ law
- Deprivations of liberty, and of liberty alone, varying in time according to the
seriousness of the crime, tend to become more and more the normal means of social
control
- 2 types of crime
Religious criminality Acts ‘are directed against collective things’

Human criminality acts ‘which only injure the individual’

 - He argues that crime tends to shift from offenses against collective beliefs to offenses
against individuals
Topic 6: Utilitarianism and Economic Analysis of
Law
- Utilitarianism is an ethical theory that suggests the best action is the one that
maximizes overall happiness or pleasure and minimizes overall pain or suffering
- Key principles:
Greatest Happiness Actions are right if they promote the
greatest happiness for the greatest number
of people

Hedonism Happiness or pleasure is the ultimate

good, and pain or suffering is the ultimate
bad

Impartiality Every individual's happiness counts

equally in the calculation of the greatest
good

Jeremy Bentham
- Is against legal fictions and calls natural law
- Big supporter of codification of laws
- Principle of utility states that actions are judged as good or bad based on their
tendency to increase or decrease the happiness of those affected
- The value of pleasure and pain will be greater or less according to:
Intensity Certainty or uncertainty

Duration Propinquity or remoteness

Propinquity Closeness or
nearness in terms
of time, space, or
relationship

Remoteness Distance or being

far away in terms
of time, space, or
relationship
 - Utility is only measured ordinally and not cardinally. In other words, we can only
rank preferences or levels of happiness, but we can't measure the exact amount of
happiness
- A state of ‘efficiency’ is attained when the maximum utility is achieved under a
certain circumstance

- 2 types of efficiency:
Pareto Efficiency When you can't make anyone better off
without making someone else worse off

A desirable approach because it

guarantees no one is made worse off, it is
not practical as a policy tool

Kaldor-Hicks Efficiency When you can't make improvements

where the benefits to one person are
greater than the losses to another person

More practical approach for policy-

making, meaning a policy is efficient, if
utility is maximized where the gains
outweigh the losses

Economic Analysis of Law

- The criteria of law and economics is that laws should lead to efficient use of resources
- Is done both positively (to describe why the law is or is not efficient) and normatively
(to propose laws which are efficient)
- Coase Theorem = laws should be made to achieve efficiency in society
 Economic analysis of law attempts to analyze law to determine whether they
have the tendency to achieve efficiency
 Propose an economic concept called ‘transaction cost’ where it can be
considered as various types of barriers which prevent two parties from
entering into a contract
 Clear property rights = If people know who owns what, they can negotiate
about it
 Low transaction costs = If it's easy and cheap for people to make deals, they
will negotiate to find the most efficient solution
 Private negotiations = People or businesses will work out agreements that
result in the best overall outcome, regardless of who starts out with the rights

Wealth Maximization
- The advantage compared to utility maximization is that the former is a more objective
and tangible measure compared than the abstract concept of utility
 - Disadvantage:
 may want some policies which transfer some wealth from the rich to the poor,
even though wealth in the hands of the rich may be more productive as capital.

Topic 7: Critical Legal Theories

- Encompass a family of different approaches in legal philosophy where the
commonality among them is simply being ‘critical’
- To uncover biases inherent in the law against marginalized communities
- Divided into 4 categories
Critical Legal Studies Feminist Jurisprudence
Critical Race Theory Postmodernism

Equality and Discrimination

- 2 forms of equality:
Equality of opportunity everyone has the same opportunity of access

equal opportunity does not guarantee equal

outcome

Equality of outcome parties start with unequal positions, and law

should provide special assistance to a
disadvantaged person in order for that
person to be able to enjoy an opportunity
like a normal person

come in the form of affirmative action

Critical Legal Studies

- seek to show that law which appear to be neutral and objective are indeed not neutral
and objective but are discriminatory in nature
- Wacks:
 CLS denies that law is a system. ‘Doctrine’ never provides a determinate
answer to questions, nor can it cover all conceivable situations. This is
described as the principle of indeterminacy.
 CLS rejects the view that there is an autonomous and neutral mode of legal
reasoning. This is described as the principle of antiformalism.
 CLS disputes the idea that ‘doctrine’ encapsulates a single, coherent view of
human relations; instead CLS argues that ‘doctrine’ represents several
different, often competing views, none of which is sufficiently coherent or
pervasive to be called dominant. This is described as the principle of
contradiction.
  CLSdoubts that even when there is consensus, there is reason to regard that
the law as a decisive factor in social behaviour. This is described as the
principle of marginality.

Feminist Jurisprudence
Liberal Feminism Radical Feminism
Postmodern Feminism Difference Feminism

Liberal Feminism
- The importance of individual rights, both civil and political
- Liberals insist on personal freedom including freedom of speech, conscience,
association, and sexuality
- All persons are regarded as autonomous, rights-bearing agents, and the values of
equality, rationality, and autonomy are stressed
- Men & women ought to have the same opportunities to exercise rational choices.
- While acknowledging that the legal and political system is patriarchal, resist the
wholesale onslaught that is a central, feature of the radical agenda
- They prefer to wage war within the existing institutional framework of discrimination,
especially in the field of employment
- Wendy concludes 2 choices available to women;
to claim equality on the ground of similarity to seek special treatment on the basis of
to men their essential differences

- Weakness = overly reliance on traditional liberalism, which separates the public and
private spheres
- demanding equality in the public sphere, liberal feminists undermine the participation
of women in the political sphere as women generally are excluded from the public
sphere which end up having to meet men’s standard.

Radical Feminism
- it is men’s intention to dominate over women, so the issue is ultimately one of power
- women’s position in society is the result of systematic dominance of men over women
- Catherine Mackinnon = the legal system is modelled after the men’s world; thus,
concept of equality is unable to dislodge the fundamental dominance of men and male
values.
- Carol Smart = deny that law can affect genuine equality
Postmodern Feminism
- rejects that concept such as ‘equality’, ‘gender’ and ’woman’ can be objectively
defined
- reject essentialism & believe that concept such as gender are social constructs
- Phallocentrism = a societal focus or bias towards the masculine or male perspective,
often resulting in the prioritization of male experiences, values, and perspectives over
those of women
- Katharine T. Barlett:
3 Feminist Legal Methods
Women question The gender implications of rules and
practices which might otherwise appear to
be neutral or objective. Discriminatory rules
are therefore revealed and attacked.

Feminist practical reasoning Challenging the legitimacy of norms of

those who claim to speak, through rules, for
the community. It emphasises women’s
perspective in rape and domestic violence
cases.

Consciousness-raising Understanding and revealing female’s

oppression through ‘an interactive and
collaborative process of articulating one’s
experience and making meaning of them
with others who also articulate their
experiences

Concept
Positioning" acknowledges that our beliefs Positioning rejects the idea of absolute,
and knowledge are shaped by our specific universal truth
circumstances

The importance of context in shaping our Sees truth as connected to our individual
understanding of truth and our commitment experiences and relationships. Our
to certain beliefs perspectives and identities are formed by the
interactions we have, rather than by inherent
qualities
Difference Feminism
- Known as cultural feminism
- Emphasises the differences between men and women, and rejects formal equality of
the liberal feminism
- Seeks to uncover the unstated premises of the law’s substance, practice and procedure
to expose the diverse forms of discrimination
- Lucy Irigaray:
 Mainly reflects the concerns and experiences of men
 Claims of neutrality fall short when considering the realities: women face
unique challenges like pregnancy and sexual violence
 Society, largely governed by men, often overlooks these issues in lawmaking
and enforcement
- Law reflects a male viewpoint ‘characterised by objectivity, distance and abstraction’.
- Such theories tend to be essentialist and therefore unacceptable to many feminists’
theorists
- The concept of equality is a more complex and ambiguous aspiration than liberal
feminists acknowledge
- Women’s moral values tend to stress responsibility whereas men emphasises rights
- Women look to context whereas men appeal to neutral, abstract notions of justice
 Topic 8: Law Language and Literature

Ambiguity and Open Texture

- Legal texts often contain ambiguities or 'open texture,' where the exact application of
words or rules may be unclear or subject to interpretation.
- This ambiguity necessitates judicial interpretation and the application of legal
reasoning to determine how laws apply to specific cases.

Interdisciplinary Influence
- Legal language is influenced by various disciplines, including philosophy, politics,
economics, and sociology.
- Different interpretations of legal concepts may arise from these interdisciplinary
perspectives, contributing to the dynamic nature of legal discourse

Judicial Discretion
- Courts play a crucial role in interpreting and applying legal language.
- Judicial decisions often involve weighing competing interpretations, considering
precedent, and applying principles of justice and fairness to arrive at a judgment.

Language as a Tool for Legal Analysis

- Legal professionals use language as a tool to analyse, argue, and interpret legal
principles and doctrines.
- This analytical process involves understanding the historical context, legislative
intent, and societal implications of legal language.
- The dynamic and interpretative nature of legal language underscores its complexity
and flexibility in adapting to changing circumstances and societal values

Ronald Dworkin
 - Distinguishes the role of language in literary interpretation and in law whereby
literary interpretation is to demonstrate how a work can be perceived as the most
valuable piece of art.
- a possible interpretation of legal practice must also meet a similar criterion in two
dimensions:
 It must align with legal practice itself and demonstrate its purpose or
significance

- The law and literature movement can be divided into three strands:
Law in literature Law as literature
Literature as law

Law in Literature
- Is to look at how law is portrayed in the literature that involves a court scene or other
scenario where some law is used or discussed
- Some scholars pointed out that this literature inaccurately portrayed the law as lack of
sufficient knowledge of actual law in the writers may be a contributing factor to this
deficiency
- Richard Posner = there is no need to turn to literature to critique the law because more
appropriate resources are available
- CRB Dunlop = value of literature lies in its ability to show to the reader an alternative
reality to a situation and allows the reader to compare this alternative reality with their
own reality
- George Orwell = portrays a totalitarian society where personal freedom is non-
existent
= the jurisprudence philosophy is deeply linked with the totalitarian
regime's mechanisms of control and oppression

Law as Literature
- Law as a unique form of writing can be treated as a form of literature, broadly defined

Literature as Law
- Literary writing style is invariably different from legal drafting style, and thus there is
no example of literature being considered law, non-fictional writing becoming part of
law or legal discourse is not uncommon.