Lecture 1

 provides accounts of what law is

 jurisprudence’s explanada: what jurisprudence explains
o legal regal rules/norms we must abide by
o legislation: what counts as legislation, what’s important about legislation; makes
distinctions between legislative acts and non-legislative acts
o precedent/binding-ness of previous court decisions – we learn something general about
these particular legal systems from previous court decisions
o legal concepts [e.g. contract, criminal offence, rights] – like duress, fraud, etc. which are
determined by legislation/institutional writers/etc
o interpretation – what is the meaning of certain court decision/legislation?
o authority -feature of legislation, court decisions, etc.
o coercion – some say that law can only be distinguished from say morality or etiquette as
it has state of organised coercion; common feature of law is coercion
o the state and its parts [e.g. courts, police]
o law “beyond the state” – eu law, international treaties, etc. – how the law can flourish
beyond the state
o law’s social impact – how the law orders society
o this is just a sample of its explanada; jurisprudence attempts to provide general
explanations to some or all of these explanada
 in relation to each of the explanada, a number of questions can be asked, for instance
o legislation
 what is distinctively legal about legislation [in relation to, say, commands]? – what
makes legislation legal? what is present in legislation that is not in a bill that must
be voted on?
 how to extract legal norms from legislative texts?
 what is legislation for?
o authority
 does law have authority? some deny that it has authority -it is just a mechanism of
social control and shouldn’t be binding on anyone – it appears to have authority
but actually doesn’t – but then, what exactly is authority? what is the relationship
between law and authority? does it have authority? does it claim to have authority?
 what does it mean to say that law has authority?
 what has authority in law [norms, sources, officials]?
 what follows from law’s authority, in relation to what I should do? do I have to obey
the law?
 jurisprudence addresses different types of questions
o conceptual, e.g. what does it mean to say that law has authority?
o descriptive, e.g. what has authority in law?
o normative/evaluative, e.g. what follows from law’s authority, in relation to what I should
do? do I have to obey the law?
 questions relate in complex ways
o what is distinctively legal about legislation might be its authority
o what gives it authority, in turn, might be the existence, in the legal system, of certain types
of norms [say, second-order constitutional norms]
 putative answers beget new questions
o what is a legal norm?
 o what is the difference between a first-order and second-order legal norm?
o is law’s authority just a matter of social practise, or is it predicated on law’s moral value?
o what is more authoritative: legislation, previous courts decisions, institutional writers,
international treaties?
 answers to these questions might imply/preclude certain answer to different question, e.g.
o If what is distinctive about legislation is its relation to second-order norms, then
conceptions of law that reject second-order norms would also reject that there is
something distinctive about legislation.
 some questions about the law can be answered independently from one another
o If legislation is legally distinctive solely because it is authoritative, and if authority is not
predicated on moral values, then a claim about the moral value of legislation implies
nothing about it being distinctively legal.
 many of the answers offered to questions asked about the explanada are contested
 neil maccormick described law as an institutional normative order – law has institutional,
normative and ordering elements
o law is institutional: it is in part made up of humanly constructed and formalised norms
o law is normative: it is a form of binding action-guidance – it is also binding – how can the
law bind you? how can the law make something obligatory for you?
o law produces order: like habits or disciplinary techinques [e.g. threats, inducements]; law
produces a certain ordering of human action and social behaviour
 Different, influential and (sometimes) rival accounts emphasize one of these three aspects of
law.
o In part I of the course we will discuss accounts whose main concern is to explain law’s
institutional nature.
o In part II of the course, we will discuss accounts which explain law’s binding action-
guidance as resulting from its standing in relation to certain non-legal values and goods.
o In part III we will discuss different accounts of how law orders social action.
 although these theories have been organised along these thematic points, this does not mean
other points are not important
 the authors we hear about are exemplary
 we will not have definite answers to all of these problems by the end of the course

Lecture 2

 an explanadum: what is legal about legal norms?

 a norm is a standard/pattern of behaviour that should be adhered to
 a strategy: to identify set of properties possessed by a norm that make it legal
 positivist answer: what makes a norm legal is its validity
o In any legal system, whether a norm is legally valid (and hence forms part of the law of
that system), depends on its sources, not its merits [whether it is good/bad].
o As famously put by Austin: "the existence of law is one thing; its merit or demerit is
another.”
o for any valid legal norm, there is always a source that explains its validity – the legality of
norms stems from social sources [the “sources thesis”] – source is always set of
action/group of actions [e.g. people raising their hands in Parliament]
o in addition to sources, u don’t need to ask anything about its morality/goodness –
separability thesis – there is conceptual separation between law and ethics – the
 substantive or moral merit of law is not necessary condition for a norm’s legality - for sth
to count as legal it is not necessary for sth to count as good
o within literature abt law, the word “positivism” has number of meanings
 “epistemic” positivism/positivism proper – above
 “ethical” positivism – positive law has ethical value
 there is way to use positivism that refers to certain idea of legal
reasoning/argumentation – that in legal reasoning the only admissible kind of
argument is derived exclusively from positive sources – “formalism” in legal
argumentation
o variations of epistemic positivism
 what if a source [e.g. constitutional law] says that the law/legal norm is only valid if
it is reasonable? – so positivists must decide between being “soft” [saying merits
count but only if law says so] and “hard” [saying merits don’t count]
 soft/inclusive – in some legal systems, when positive laws command u to take into
account morality/identify merits/further rules in those situations merits can count
 hard/exclusive – even if legal system includes norms that explicitly identify another
norm’s merits as condition for their validity, truth is that this appeal to “merits” is
never operative
o hans kelsen’s pure theory of law (PTL): first positivist school of thought
 in early twentieth century, best available accounts of law confused descriptive
[factual] and normative [how things ought to be] elements and, within the latter,
subjective and objective normative elements
 kelsen said before we look at connections between facts and norms we need to
look at what each of these is separately
 yerring’s theory of law famously discussed interests which, for kelsen, were merely
subjective, not objective
 kelsen called this legal syncretism [when all these things come together which
produces sth v good but also are incompatible]; this, he believed, led to confusion
 he then set out to build pure theory of law by
 purging his account from any confusion between (i) mere facts and (ii) legal
norm
 purging his account from any confusion between (i) moral/political norms
and values and (ii) legal norms.
 kelsen’s starting point – neo-Kantianism
 for kant, human understanding occurs when categories we carry within
ourselves allow us to organise the messy datastreams perceived by our
senses and constitute objects of knowledge; this is basic structure of human
knowledge
 among such organizing categories two schemes based on categories (for
Kelsen) stand out: causality [things that cause other things to happen] and
imputation [things that should happen]
 causality
o To claim that two facts are causally connected is to say: “If fact F1
happens, then fact F2 also happens”
o Example: If one crosses the red traffic light, s/he is penalized.
o descriptive
o not true – not everyone who crosses the red traffic light is penalised
 imputation
 o To claim that two facts are connected by imputation is to say:
o “If fact F1 happens, then fact F2 ought to happen”
o Example: If one crosses the red traffic light, s/he ought to be
penalized.
o if something that ought to happen doesn’t happen, this doesn’t mean
it shouldn’t happen
 Kelsen’s first claim is that law organizes facts in the category of imputation
(ought), not the category of causality (is).
 Another name for a relation of imputation (an ought) between two facts is:
Norm.
 But there are norms of many kinds (moral, etiquette, religious, chess, etc)
 So: the crucial question in a pure theory of law is to work out what is
particular about legal norms.
 To say that a norm exists means the same as saying that it is valid.
 ‘Norm’ express something that ought to happen.
 A merely subjective ought expresses something that ought to happen
according to someone’s wishes.
 (e.g. ‘I ought to give money to charity more often’; ‘I ought to buy my partner
flowers’ etc)
 Law is different from all other ‘oughts’ in that legal ‘oughts’ are objective.
 for kelsen, everything other than law is subjective
 A legal norm is “the objective meaning of an action (or a set of actions)”. –
that you ought objectively to do it – the only way to identify an objective
ought is by reference to a higher norm -if there is a positive norm that says
u ought to pay taxes, now u have an objective ought – another high norm
tells u that when u do this objective ought another objective ought ensues
 The action is what posits the norm.
 But the action is only successful in positing a new norm because there is
another (higher) norm that says so.
 example i
o Action: a group of people in a room are asked if a certain tax rate
should be changed to 20%. They all say ‘aye’.
o What makes it the case that now I ought to pay 20% tax?
o Answer: the existence of another norm that says (roughly), that this
procedure, when followed by elected MPs, can make it the case that
I ought to pay tax at the rate they decide.
o The action posited a new objective norm because there was another
legal norm that said so.
o Notice: if we were to follow the same procedure here today, it is not
the case that I legally ought to pay the tax at a 20% rate, even if we
really mean to do it.
o We really meaning to do it can only generate a subjective ought.
o Only a higher legal norm can make the action in question generate
another legal norm.

Lecture 3

 5 archetypes in Speluncean Explorers [not mutually exclusive]

 o positivist – law is made up of valid norms contained in authoritative sources of law
o formalist – the law is the answer you get when u apply the rules and procedures to the
letter
o realist – the law is simply a vehicle for our preferred outcome in a case
o idealist – if we look and think hard enough the law tells us the right thing to do
o the indeterminate judge – the law can often give us no clear guidance no matter how hard
we look, i.e. we have to use sth else, e.g. morality, ethics, etc.
 legal norm expresses relation if imputation [not causality] between 2 facts
o fact that happens
o fact that ought to happen
 “ought” in legal norm is objective
 what makes a norm objective is combination of
o act that posits norm
o another legal norm according to which that act creates legal norm
 john accepts contractual offer made to him by peter
o what makes it the case that, after his acceptance of offer, John objectively ought to fulfil
its part in the contract?
 answer: that there is another legal norm according to which roughly whenever
contractual offers made in certain way are accepted in certain way, parties ought
to fulfil their respective undertakings (i.e. pacta sunt servanda)
 objective ought is not valid for everyone – sometimes it is only valid for 2 people or 5 people –
so that john must fulfil his prat in contract is particular legal norm that only applies for him and
peter
 contract makes law between parties – so contract is also objectively something u have to do –
not all legal norms are applicable to whole society – what is applicable to whole society is pacta
sunt servanda
 john’s acceptance posited new objective norm bc there was another legal norm that said so
 legal system has pyramidal structure of norms tied tgt within chain of validity (stufenbau)
 chain of validity guarantees unity of legal system
 example of chain of validity
o 1. the basic norm (Grundnorm)
o 2. constitution
o 3. statutory norm – e.g. tax rate is raised to 20% from legislation
o 4. judicial decision (a particular norm) – judge orders someone to pay 20% tax
o 5. coercive act
 kelsen and pure theorists’ main concern is to account for acts of violence/coercion practised by
state officials – at end of day, this whole chain will end w some court official seizing goods from
someone, police coming to ur door and arresting u - when u look at acts of violence u can see
result from objective ought
 kelsen’s canonical formulation of the Grundnorm - “coercive acts ought to be performed under
the conditions and in the manner which the historically first constitution, and the norms created
according to it, prescribe.”
 formulation of basic norm is apparently empty – it doesn’t identify “historically first constitution”
but it can only do its work if whoever is applying it can fill that blank
 so each legal system is going to have a different basic norm bc their constitutions are different –
the
 so one might ask – if there is disagreement as to historically first constitution, how should matter
be settled?
 the norms derived from the basic norm must be, on the whole, effective
 a “candidate” basic norm that is ineffective is no basic norm
 effectiveness: acts of coercion carried out by officials “ought” to be performed according to chain
that starts with Basic Norm
 each individual norm doesn’t need to be effective to be valid; but on the whole the norms derived
from the Basic Norm need be
 why coercion is so important in pure theory of law
o legal norms make sense of acts of violence [i.e. those carried out by state officials]
 not effect of another fact [causality] but instead
 as what “ought” to happen [imputation]
o kelsen is not saying act of violence can’t be explained causally – just as series of causal
connections between proper legal sociology
o importance of acts of coercion explains another feature of legal norms – every legal norm
must belong to chain but also must always prescribe sanctions
 but is the basic norm positive?
 what does norm have to be to be positive?
o norm needs to be in the chain – someone must posit the norm (e.g. act of legislation) –
there must be higher norm that looks down and says meaning of all these people raising
hands is what it is in legislation which makes it law
o positive law is posited by an action; the “objective” ought meaning of that action is the
Norm; the “objective” ought meaning of that action is given by a higher norm
o thus the basic norm is not positive bc there is no norm higher than it; it is pressuposed –
it means that it assumes/supposes that constitution should be obeyed
o basic norm is not posited by anyone but it is pre-assumed by everyone in its legal system
 pure theory of law
o offers account of legal norms predicated on their validity, not their merits [a positivist
account]
o offers account of law’s unity grounded on chain of validity
o in doing so, it aims at spelling out in theoretical terms what lawyers do routinely [if
unconsciously]
o offers account of state coercion as end of chain of imputation
o for that reason, sees prescription of sanctions as essential feature of legal norms
 austin lived before kelsen – idea of law purely as command/order from sovereign to be obeyed
by people – saying there’s no need for basic norm – just orders from some people [e.g. dictator,
king, parliament] – backed by threats and obeyed by people subject to them – positivist theory

Lecture 4

 law of command: famously put forward by john Austin (1790-1859) who was influenced by
Jeremy bentham (1748-1832)
 Austin was writing in 19th century; he was unhappy w some ways law was perceived in 19 th
century (traditional way)
 common law was body of decisions + habits coming from past and filtering into present to court
decisions that read old decisions and applied them; idea that law was this growing chain
 what was new in law as command
o reaction against conceiving the law purely as tradition
  Austin thought we needed sth more crisp, clear abt what law is – it had to be fully
unpacked
o generates analytical tools that help lawyers to conceive the law as less fragmented
o attempts to provide clearer criteria to identify valid law
 main tenets of command theory [and of some other early positivisms]
o It attempts to provide criteria to discriminate what is legal from other social phenomena
 given loads of social acts like greeting/teaching, which of them bore legal identity?
o The criteria for identifying valid law are based on the observation of facts (as opposed to
the assessment of the decision’s ‘value’), within a particular conceptual scheme.
 trying to find what all the facts that people call law have in common
 caveat: 2 19th century positivisms
o Sociological Positivism (Comte):
 a particular way of understanding of society – very technocratic
 which contains recipes for evidence- based, scientific interventions.
o thought that sociologists should construct series of evidence-based constructions – very
prescriptive – these would prescribe to u how to organise society + live tgt – became sort
of religion
o (ii) Legal Positivism: law as something that is created (‘posited’)
 crucial elements of law as command (for Austin, a legal norm is:)
o the expression of a wish regarding someone else’s actions;
 e.g. lecturer wishes students listen, thou shall not kill, etc.
 not enough – people wish things all the time – we need more, i.e. following crucial
elements
o issued by the sovereign;
 still not enough -sovereign sometimes still gives u orders, e.g. in battlefield, u go
there – these orders still have to be obeyed but are not necessarily law; are
introduced to indivdiuals; other criteria needs to be added
o backed by threats of sanction(s);
 these orders must be backed by threats
o addressed to a class of agents;
 law is addressed to a plurality of people, not just one individuail
o habitually obeyed.
 law as command as a positivist account of law
o It provides a criterion for the identification of laws which is not dependent on the value of
those laws.
o There is a difference between the (i) l aw as it is and the (ii) law as it should be.
o The command theory attempts to find a criterion for identifying (i) that does not collapse
into (ii).
 some features of the sovereign
o The Sovereign is habitually obeyed by the social group.
o The Sovereign does not habitually obey anyone else.
o sovereign’s power is articulated through rules and norms; social organisations lend power
to sovereign
o is it divisible? can we divide sovereignty? can there be multiple sovereigns that share
sovereignty? a lot of sovereignty is exercised by groups of people. i.e. parliament is made
up of groups of people
o Is it limited?
 for some it only counts as sovereign if there are no limits to his power
 the command theory as a heuristic device
o The Command theory is hardly a straightforward description. – there are many layers of
translation between reality of law and command theory
o It involves interpreting a number of aspects of legal practice “as if” they possessed some
extra features (fictions).
o This conceptual effort aims at generating both theoretical and practical advantages.
 being able to compare different rules (e.g. law, church, etc.)
 see world more clearly

Lecture 5

 recap – law of command

o It attempts to provide criteria to discriminate what is legal from other social phenomena
o The criteria for identifying valid law are based on the observation of facts, as opposed to
the assessment of ‘value’ of the decision.
 expression of a wish
o law of command theories either
 Translate aspects of legal language and phenomena into expressions of a wish.
 Consider putative aspects of legal language and phenomena to be ultimately
legally irrelevant. – it looks like part of law but it actually isn’t
o e.g.
 Judge-made law is translated as ‘tacit commands’ produced by those with delegate
authority from the sovereign.
 “[A]ll judge-made law… is the creation of the sovereign or state”
 When judges make social practices “into legal rules […] the legal rules which
emerge from the customs are tacit commands of the sovereign legislature”
 however problem emerges – what’s the value of idea of unity and indivisibility of
power when everything is explained away by delegation of this power? what is the
explanatory power of the sovereign then?
 habit of obedience
o This is an element of a legal norm, but it also has a role to play in identifying the sovereign.
o But this generates puzzles:
 If the sovereign is a monarch, upon his death who is habitually obeyed? (and
similarly re. Parliamentary elections). has law just been abolished? dead king is
not issuing orders anymore so there must be a rule that bridges between when
previous sovereign dies and new one appears to establish rule of
succession/transition of power – criticism of law of command
 What about complex modern states? Who are we obeying?
 according to criteria, what would count as law and what would not?
o what would not – laws improperly so called – no command
 law by metaphor [e.g. gravity]
 law by analogy [e.g. laws of etiquette]
 law by close analogy [e.g. law not set by a determinate body exercising its will,
such as positive morality, customary law or public international law, parts of
constitutional law bc no overarching sovereign]
 positive morality – what is moral/immoral, not what should be moral/immoral
 customary law – tacit command – e.g. normal rules of trade based on
custom
o what would – laws properly so called
  Laws of God
 Human laws set by the will of a sovereign
 “Exceptions” to be included in the study of Law Properly so called (e.g. repealing
laws, declarative laws, and “imperfect” laws)
 2 features of law as command theories
o monistic: all legal norms have a single form [Kelsen believed this too] – they are all orders
backed by threat, etc.
o reductivist: normative language used to describe law [talk of rights, duties, precedent, etc.]
can be translated in non-normative terms, without remainder - - complicated legal jargon
can be reduced to simple facts with no loss of information – anything that can’t be
explained shouldn’t be explained
 objections to law as command
o Insofar as sovereignty is important, it is a more abstract idea (i.e. more impersonal and
continuous over time between different rulers).
 way in which Austin thinks of sovereignty is too simplistic – power flows in more
complicated way in our contemporary society
o Seems unable to account for certain legal rules, in particular power-conferring rules.
o Importance of sanctions is overstated: there is a difference between ‘having an obligation’
and ‘being obliged’ (as Herbert Hart demonstrates)
 compliance doesn’t seem to be always connected with threat of sanction – u don’t
always know what the sanction is; u do it anyway
o Hides dubious value-judgment about law (namely, that its effectiveness is best grounded
in its coerciveness) behind a supposedly factual claim about how law actually operates

Lecture 6

 Hart produced textbook The Concept of Law (1961) – The ‘Bible’ of Anglo-American Legal
Positivism
 Hart was writing when ordinary language was at forefront of philosophy – which had idea that if
we pay attention to way we use language we can actually sharpen our perception of phenomena
we are trying to engage with so we can see them more clearly; sometimes we speak in way that
is muddled; as a result we are not perceiving certain real things [e.g. law] that are part of our
world
 for Austin legal norm must be obeyed – so having legal obligation means u are obliged to do so
– enforced by threats –
 2 uses of being “obliged”
o “being obliged to do something” – refers more naturally to situation in which one is forced
to do something by someone else [often by means of threat]
o “having an obligation” to do something – refers more naturally to situation in which one
should do something
 e.g. from natural justice which is made of series of principles/rules
 Austin is trying to assimilate 2 things that are not necessarily the same
 hart is trying produce more nuanced view of law that distinguishes between “being obliged” to
do something and “having an obligation” to do something
 habits and rules
o Both habitual behaviour and rule-governed behaviour share the “regularity” element.
o But they differ on the range of acceptable responses to deviation.
 A deviation from a habit does not warrant criticism
  A deviation from a rule warrants criticism.
o This point is not specifically about legal rules, but applies also to other kinds of rules
(etiquette, games, etc)
 A Rule: a generally practised pattern of behaviour that is also generally recognised as providing
a standard of criticism.
 Rule-Governed behaviour can be regarded from two points of view
o the External Point of View
 The External/Internal-Detached Point(s) of View: that of an observer (or of
someone who does not recognise the rule as providing a critical standard for
guiding and assessing behaviour.)
 doesn’t even see that there are people following rules, just that they all have
regular pattern of behaviour
 doesn’t think they are committing to rules
o the Internal Point of View
 The Internal-Committed Point of View: that of a subject who recognises the rule
as providing a common standard of behaviour, towards which (s)he adopts ‘a
critically reflective attitude’, expressed in:
 Voluntary conformity – even if u want to change it
 expectation that both oneself and others comply with the rule.
 critical attitude to the actions of those (including ourselves) who do not
comply with the rule.
 From Rule-Governed Behaviour to Law
o Law is union of primary and secondary rules
 for hart and kelsen, everything breaks down into duties; but hart thinks that there are primary
AND secondary rules
o Primary Rules are duty-imposing
o Secondary Rules are power-conferring
 hart introduced 3 secondary rules and believed that each of them performs
particular role
 Rules of Change: allow other rules to be created or abolished in a given
legal system
 Rules of Adjudication: regulate procedures to settle disputes about rule-
application
 Rule of Recognition: defines the tests that a rule needs to pass in order for
it to count as belonging to the corresponding legal system
o incorporates parts of rules of change
o establishes ultimate criterion for belonging to legal system of each
particular rule
 if whole society is governed only by duty-imposing rules, people only follow their duties; so what
kind of thing might u want/need to do w legal system for which duty-imposing rules will not be
enough? what shortcomings do they have?
o there are some rules that may not be up to date with changing social attitudes; how do u
abolish/change them legally? – therefore we need rules of change that tell u who can
abolish/create new rules + allow u to alter system in way that allows dramatic change and
growth – now u can deliberate and change rules
 therefore according to hart
 o rule of recognition connects to primary rules bc duties part of law are only part of law bc
rules of recognition declare them so
 rule of recognition: special type of rule upon which legal system is founded
o for hart rule of recognition is social fact – e.g. parliament
o rule of recognition provides validity test for rules of legal system: identifying and unifying
legal system
o so what’s difference between rule of recognition and kelsen’s basic norm?

Lecture 7

 hart believed that sharpened perception of language leads to sharpened perception of

phenomena.
 on basis of that belief hart tried to identify some of our linguistic practices to see if there was
anything behind them; he noticed there was a difference in way we used language when we
were talking about being obliged and when we were having an obligation, as well as when we
formed habits and rule-following rules
 those distinctions in turn point to existence of social rules that are not reducible to
o being forced to do something by threats
o having habit of obedience
 so: theory that tries to explain social [including legal[ rules by reduction to these types of facts
leave a remainder – explanation is not appropriate – whatever austen can explain w his model
he cannot explain certain ways in which we use social rules – we are constantly evaluating each
other’s behaviour by rules
 so we have to have social rules that give account of law
 law is union of primary and secondary rules
 primary rules are duty-imposing
 secondary rules are
o rules of change
o rules of adjudication
o rule of recognition
 but what is difference between rule of recognition and kelsen’s basic norm?

basic norm rule of recognition

all norms in legal system stem from rule of
all norms in legal system stem from basic norm
recognition
provides validity test provides validity test
gives identity and unity to legal system – what gives identity and unity to legal system – what
makes legal rules belong together makes legal rules belong together
it captures what lawyers and citizens do every it captures what lawyers and citizens do every
day day
it is logical necessity – there must be a norm at
the top of the system there – an “ought” cannot
derive from an “is” – it tracks a social fact – it is it is social fact – believes it can derive an ought
pre-supposed – the hypothetical norm – we from an is
need to act as if there was a norm otherwise
there would be no duties

 existence of rule of recognition (rr) is consequence of its SOCIAL ACCEPTANCE

 acceptance is complex social fact which stems from division of social labour between
 o legal officials who use rr as standard by which to evaluate their own [and others’
behaviour]
o the population which participates by passively accepting result of such evaluations
 hart conceived that there are aspects of natural law that we should take into account as positivists
– he still didn’t believe that merit was a condition for validity but there were some aspects that
were probably spot on
 there are certain things that we are that imply need for certain rules in our legal system
 Legal systems “must” incorporate certain rules as a result the human condition, in particular our:
o Vulnerability
o Approximate equality – none of us is so powerful we can overpower someone else
o Limited altruism
o Limited resources – we can’t have everything we want – we don’t have the resources –
there are limits to what we can produce and have
o Limited understanding – we don’t have full foreseeability/understanding of future and
present
o Weakness of will
 so some rules address ur vulnerability – rules about violence and protection of
possession/property
 does this argument fit bill of natural law? natural law is really controversial in terms of what it is;
natural lawyers diverge amongst themselves naturally
 for positivists, natural lawyers are those who believe that validity of norm – belonging of norm
within particular legal system – is predicated at least partially on its merits
 not clear whether hart has in mind that natural law is set of moral principles or set of necessary
rules for ‘survival’ of society
 ‘Survival’ through law involves inter alia
o (i) protecting persons,
o (ii) protecting property,
o (iii) ensuring promises are kept.
 aftermath of big positivist wave of nineteenth century
o Remember the core of positivism: In any legal system, whether a norm is legally valid
(and hence forms part of the law of that system), depends on its sources, not its merits.
 Contemporary positivists have attempted to address puzzles left by the positivist giants of the
20th Century:
o What does it mean to say that law has authority? Are legal norms able to generate reasons
for action?
o What would a positivist account of legal reasoning and argumentation look like?
 subject to a lot of criticism
 Objections of different orders have been levelled against positivism, among which:
o Positivism fails to provide an adequate account of our institutional practices (what
lawyers/legal officials use in practice) as it cannot account for the way legal officials decide
cases when the rules ‘run out’. – when the semantic context of the law – what the law
says – runs out bc there is substantive disagreement about what the law is bc law might
be ambiguous – positivists say it happens outwith law – it’s part of judges’ moral/political
views – law has nothing to say about that
o Positivism fails to capture the point of having law as a form of social organization. – what
law is designed to deliver
o Positivism fails morally as it allows for deeply unjust laws.
 instead they say that
  all these rules that oppress and kill people aren’t really part of law
 or they were part of law but shouldn’t have been obeyed
 Some of these objections led at least some positivists to make partial concessions (e.g. ‘soft’
positivism came to accept that in some systems, a norm’s merits might have an influence in its
validity in certain situations).
o shows how dynamic field is – these things are still being discussed

Lecture 8

 criticisms against positivism

o Positivism fails to provide an adequate account of our institutional practices as it cannot
account for the way legal officials decide cases when the rules ‘run out’.
o Positivism fails to capture the point of having law as a form of social organization.
o Positivism fails morally as it allows for deeply unjust laws.
 charge is that positivists claim that such investigations on point of law are irrelevant in order to
define what legal norms are in given legal system
 but critics say that account of law is misleadingly incomplete without account of point of law
 not saying positivist account is partial account – saying that it is misleadingly incomplete account
– that it is taking theory about part of object to be theory about whole of object – nothing else
can be learnt about object – don’t take into account foundation of law, reasons to have law, etc.
– just say that it is bad description of legal n
 claim is that complete account of law would
o address questions about point of law [i.e. type of merit question] and that, in turn, would
unveil truths about law and legal norms that remain opaque within positivist account
 Many prominent attempts to vindicate that claim are often grouped together under the umbrella
phrase “Natural Law”.
o At the broadest level, they pick out features of human nature (or sometimes the nature of
human associations) and, from them, infer something about the nature of law/legal rules.
o they disagree within themselves over these features though
o Natural Law theories are legion and grouping all together has some deleterious effects.
o So we must proceed with caution.
 2 conceptions of human nature
o classical conceptions
 human nature is conceived “teleologically” – its point/purpose/reason of being is
part of its essence/what it is – any account of that thing that doesn’t take into
account that point/reason of being is a bad account
 complete account is more about human “potentiality” than about human “actuality”
– realising that we might not actually get there – we can theoretically become better
humans but we might not actually get there
 not just any potentiality – everyone has potentiality to become murderer – it’s only
human potentiality - potentiality to become human
o modern conceptions
 human nature is conceived “statistically” – if every human displays certain feature
now that’s part of human nature, e.g. hobbs would say that every human is
selfish/worried about its self-preservation therefore human nature is selfish – u look
at big set of data and see what is common
 complete account is not about human “potentiality”, but about human “actuality”
 Classical: human goods are aspects of a fully realized human life. Law is vindicated by the
realization of such goods.
o point of law is to realise these human potentialities
o not all laws produced by sources are examples of laws – some may be so detached from
realisation of such goods that they are invalid laws even if they are from right sources
 Modern: Law attempts to address statistically common features of humanity.
 relevance of moral objectivity
o natural law theories are predicated on existence of objective moral truths
o natural lawyers are by and large moral objectivists
 modern natural lawyer: Thomas hobbes
o wrote mostly about politics though he had strong opinions on physics, science, etc.
o believed in state of nature that humans are naturally selfish, distrustful and glory-seeking
o state of human nature results in ‘The War of All Against All’ making life ‘solitary, poor,
nasty, brutish and short’
o human nature is also rational and can calculate best means to achieve certain ends
o best means to preserve life is to seek peace
o best means to seek peace is to bind ourselves in covenant [associative pact]
o to secure this we grant unlimited power to political sovereign [Leviathan] to punish us if
we break our obligations that stem from social contract [pact of subjection]
o people say he is in a sense father of positivism bc for him human nature means u have to
obey government
 Puffendorf (1632-1694) – concludes sth v similar to hobbes
o Puffendorf, using the modern scientific methods, finds in human nature three constants:
 An instinct of self-preservation
 A greater vulnerability
 A greater inclination to cause harm to others and a virtually unlimited number of
reasons for doing so.
o From this he derives human “sociality”
o From sociality he derives a principle according to which everything that is necessary to
society is legally obligatory and everything that is detrimental is legally forbidden.
o From this principle he derives many precepts of Natural Law (in the thousands).
o In substance (and often also in form) they are identical to the precepts of Late Roman
Law.

Lecture 9

 2 ways of grounding law in modern conception of human nature

o human nature as foundation of lawmaker’s authority [e.g. hobbes]
o human nature as direct source of legal rules and norms [e.g. puffendorf]
 tensions in modern natural law
o tension with law conceived as tradition
 no clear sense of how legislation works – continental systems aren’t there yet;
some compilations of corpus iuris civilis;
 modern natural law is trying to add rationality – foil to natural lawyers is not well-
structured state with clear, positive laws; it wasn’t clear how laws were positive; so
first foil was actually state of disarray of law; they need to produce sth more
controllable, more rational – they needed to derive political authority to produce
norms
 o tension between lawmakers’ authority and norms directly derived from reason
 some argue that law is derived from human nature [we should obey sovereign]
while others argue that law is already existing and those who don’t obey it must
obey sovereign
 versions of classical natural law have been present among humanity since plato, aristostle, etc.
 in teleological conception of human nature, law’s function is to allow for actualisation of our
human potentialities
 For most teleological conceptions of human nature integration in a political community (of a
certain kind) is a necessary condition for that actualization.
 Aquinas (1225-1274)
o Law is “an ordinance of reason for the common good of a community, promulgated by the
person or body responsible for looking after that community” (ST I-II q.90a.4)
o famous catholic saint – so he believed that law was always promulgated – law ORDERS
reason – it creates reasons for u to act in particular way and thus changes decision-
making; the reason u drive on left is bc there’s law saying to do so; if there wasn’t any
legislation saying that u wouldn’t know what to do
o reason can order our lives towards flourishing in different ways
o The first principles of natural law are universal and immutable, but they are very abstract
and vague.
o Lawmakers have wide moral freedom to choose among alternative possible
arrangements (Aquinas’s determinatio) for common good
o Moreover, the law should “neither prescribe all virtues nor proscribe all vices”.
o If the elements are a set of necessary and sufficient conditions for a norm to count as law,
all elements should be present.
o so what does it mean to say that “unjust laws are not laws”?
o Is there another way to think of those elements?
o whenever all elements are present, they are law; whenever one of them is not present, it
is not law
o so e.g. if law is not for common good, it is not law
o ancient distinction between ways in which entity manifests itself in world
 i.e. using words to describe same thing but then there are words to describe things
that are similar
 instances relate to same entity analogically – those features are just talking about
central case; but there other are cases/elements that are also relevant in important
ways
 so there’s central – primary – case of law – law that is fully realising its true nature
 unjust laws are still laws but are not within central case
 john finnis and classical natural law tradition today
o basic goods should be part of fully flourished law – basic goods are basic forms of human
flourishing necessary in some combination in order to live valuable and desirable life
 life – not just survival but pursuit of all of the conditions that make life worth living
– e.g. health
 knowledge
 play
 aesthetic experience
 sociability – friendship that connects community – we don’t do things in isolation
 practical reasonableness
 ‘religion’
 o characteristics of basic goods
 Self-evident
 Pre-ethical – u don’t have any rules; they are part of human nature; they’re evasion
of ethical principle; they’re foundation of ethical principle; u build norms and rules
from these goods
 Incommensurable – u can’t sacrifice one for the other
 Pre-community
 Require to be fleshed out by an additional set of basic requirements of practical
reasonableness

Lecture 10

 In a teleological conception of human nature, law’s point is to assist the actualization of our
human potentialities.
 In Aquinas, law does so by being
o an ordering our reason
o promulgated by the person or body responsible for looking after that community
o for the common good of a community
 And for Aquinas there are different ways to do so (determinatio)
 Finnis is engaged in the same project as Aquinas.
o Identifies 8 basic goods (Life, Knowledge, Play, Aesthetic experience, Sociability ,
Practical reasonableness, and ‘religion’)
o Those basic goods are Self-evident, Pre-ethical, Incommensurable, Pre-community, and
require to be fleshed out.
 basic requirements of practical reasonableness (BRPR) (reason that’s guiding us towards
achieving those goods)
o The active pursuit of basic goods – contrasts with someone who’s really laidback
o A coherent plan of life – u should think of ur life as a whole – look at every decision u
make as if looking back at it when u r 80 – not looking just at what is in front of u – at what
is in front of u + how it is impacting ur pursuit of those goods
o No arbitrary preference among goods
o No arbitrary preference among persons – those goods are for everyone in same exact
way
o Detachment and commitment – sometimes ur so fixated on sth that u don’t see ur
abandoning other goods/not pursuing the right way – so u need certain degree of
detachment from pursuit otherwise u have tunnel vision – on the other hand u have people
that are pushovers – u can’t be too stubborn regardless of overwhelming evidence – u
must be both open-minded to changes but still be somewhat committed to ur plan and be
able to see when things are going wrong
o Reasonable efficiency – u need right means for right ends
o Respect for every basic good in every act
o Foster the common good
o Following one’s conscience
 from basic goods to law
o Humans need to live in groups (this is required expressly ‘Sociability’, and implicitly by all
the other goods).
o Hence the BRPR to foster the common good.
o To achieve the common good, certain acts need to be performed by the whole community.
 o This can only be done through coordination.
o Such coordination requires authority.
o Law is a remarkable source of authority.
o Practical Reasonableness implies the need for law.
 what is wrong with positivism? aquinas’s point is that
o Social practices cannot be described in ways that do not refer to their merit (i.e. their point,
their value, etc)
o When the object of description is a practice devised by reason and addressed to the
rational decision-making of individuals to achieve certain objectives, it makes more sense
to describe them in terms of their ultimate goals (the common good).
 unjust laws are not laws?
o The point of law is ordering of reason towards the common good (Finnis agrees with
Aquinas): that is the central case
o A deeply unjust law might not order reason properly (i.e. towards the common good).
o If so, this law is still law, but it is a peripheral case.

Lecture 11

 while nature lawyers make bold claims abt human nature, they are v humble as to the kinds of
criticism they are levelling against positivists – they are saying that there are minimal
requirements of merits for law to count as law
 the point of law: ‘Law is the enterprise of subjecting human conduct to the governance of rules’;
so law has “inner morality”
 it is inner morality of law bc these inner standards come from point of law – from subjecting
human conduct to governance of rules; it is important we have sense of what foils are –
subjecting human conduct to governance of rules is not only way to organise human conduct; if
we’re not going to do that, we are either using mere violence/coercion [e.g. concentration camps]
or managerial direction [decisions on ad hoc basis] – are without previous enactment of abstract
rules that guide behaviour
 eight desiderata [features] that law must have in order to be able to fulfil its function –
o their field of application: any legal system
o their nature: normative requirements -> principles of legality
o their function: criteria of legal morality -> demands of inner morality of law
o consequences of their absence: “A total failure in any one of these eight directions does
not simply result in a bad system of law; it results in something that is not properly called
a legal system at all”
 why we need eight desiderata
o A parable: a good-natured and well-intentioned king (Rex) wishes to make law for his
subjects, but is unable to do so because he commits, separately and successively, eight
serious errors of legal administration:
o (1) Rex begins by deciding not to make rules, but to decide cases only ad hoc;
 if rex decides things w/o rules on ad hoc basis, there is no legal system
o (2) He makes rules, but keeps them secret rather than publishing them;
 what good are secret rules to guide people’s behaviour? no good – legal system
requires rules that are made public
o (3) He publishes them, but applies them to cases arising before their publication;

 o (4) He publishes them prospectively, but in language which cannot be understood by
anyone;
o (5) He publishes them in clear language, but each rule is inconsistent with at least one
other;
o (6) He makes his rules consistent, but the demands of each rule are such that compliance
is literally impossible;
o (7) He makes compliance possible, but amends each rule so frequently that attempts at
compliance are generally frustrated;
o (8) His published law remains constant, but it bears no relation to the standards he actually
uses as judge, or his officials use as administrators.
 the full list of the eight desiderata
o GENERALITY
o PROMULGATION
o NON-RETROACTIVITY
o CLARITY
o NON-CONTRADICTION
o POSSIBILITY OF COMPLIANCE
o CONSTANCY
o CONGRUENCE BETWEEN DECLARED RULE AND OFFICAL ACTION
 distinctive features of ‘inner morality’
o It attempts to demonstrate the importance of law’s “merit”, without departing from robust
substantive moral desiderata.
o It distinguishes between the morality of duty and the morality of aspiration.
 any legal system that has managed to produce laws complying w 8 desiderata
must distinguish between 2 kinds of moral requirements
 morality of duty – tells us specifically what to do – thou shall not kill – gives
u precise account of action that’s required/forbidden
 morality of aspiration – u can make things progressively better – u have to
aspire to be 100% clear all the time; u have duty to be 100% clear all the
time
o It gives firm guidance on determining legal validity.
 for legal system to count as law, u must achieve certain level of achievement on
aspirations
o Unlike the positivists Considerations of ‘(procedural) morality’ are relevant here
o Unlike the classical natural lawyers (e.g. Finnis), these moral considerations are directly
relevant to legal validity.
 do procedural restrictions imply substantive restrictions?
o H. Hart, J. Raz, and M. Kramer think not.
 The desiderata would be “like rules of carpentry” which can be used to build
hospital beds or torture racks.
o Finnis, Simmonds and others disagree.
 when officials behave they are unlikely to feel obliged to follow rules – empirically
it’s difficult to have sth be particularly weakened on grounds of all people following
rules previously enacted, v clear, etc. bc if they don’t have respect for ur
life/integrity why would they have any attachment to universal rules?
 some value is going to be retained – why arbitrary power is so difficult to exercise
if u follow 8 desiderata
Lecture 12

 dworkin was not satisfied with positivist idea that law is set of rules because when rules run out
there is still law; he says that rules are only one type of normative standards – norms come in all
shapes and sizes; there are 2 ways in which norms can crop up – rules and principles
 rules are all-or-nothing – they either apply or don’t apply
o “thou shall not kill” – in particular case u either broke the rule or u didn’t
 principles have dimension of weight – tell u sth u have to do but can be weighed against other
principles that point in different directions that u have to weigh in order to make decision
 e.g. no one should profit from their own mistakes – accepted that this is part of common law; but
there are many situations in which people are allowed to profit from their own mistakes, e.g.
Riggs v Palmer [after murdering grandfather he executes old will – question was whether he
could inherit having profited from murdering someone – court said rules of testaments and wills
don’t mention anything abt murdering – this principle of profiting from own mistakes was weighed
against oth er principles – in this case it tipped in favour of not giving him inheritance
 no strong judicial discretion
o in “model of rules”, judges have strong discretion in “hard cases”
o However, for Dworkin:
 Judges should not make the law as legislators do
 Rules should not be made retrospectively – judges must find in existing materials
of law principles to use – can’t just make them up as they go along
o Hence: Judges can only have weak discretion
 what does weak discretion mean?
o Legal principles give legal grounds for decision, in the absence of clear Rules – so law
has no gaps
o The “One right answer” thesis (Hercules) – judge that had all info from institutional
writers/cases/legislation would be able to find one right answer – in every case there is
one and only one right answer
 Dworkin 2.0: Law as integrity
o law is single cloth: everything holds tgt – discrete rules- all these pieces of legislation,
cases, statutes, hang together because law applies equally to all members of the
community; it must treat all with equal respect and concern
o Hence: Law is incompatible with ad hoc diversity of treatment.
o 2 criteria
 All legal decisions must Fit previous decisions (judicial, legislative, etc) – the value
of coherence
 All legal decisions must be grounded on sound principles of political morality
o fictitious example
 2 Rules of courtesy in a fictitious society:
 One should always take the hat off when in the Emperor’s presence
 One should always give way to heavily pregnant women.
 we need to find 1 explanation for both rules – 3 theories about practice
 Courtesy is about showing respect to Aristocracy.
 Courtesy is about showing respect to people in a vulnerable condition
 Courtesy is about showing respect to people who are important for the
particular community.
o how does dimension of fit work?
 Helping to create rules for cases when rules are unclear
  Justifying exceptions even to very clear cases.
o chain novel metaphor – u write chapter, u send it to someone else who writes next
chapter, they send it to someone else who writes next chapter, etc.
 Law is analogous to literature
 Imagine a novel in which each chapter is written by a different author.
 Each chapter must interpret the previous chapter and aim at being the best
possible continuation of that story.
o who does law as integrity bring to the debate?
o criticism to law as integrity
 Interpretation law is a superhuman skill. – how do u come up w single point from
hundreds of cases? what u can do is talk abt more local parts of law
 Too hopeful about the coherence of the community’s past decisions – perhaps law
is as haphazard as it looks!
 Downplays the advantages of certainty and predictability in law.
 Judges are the main actors, not the legislator.
 Law as Integrity claims to be the best interpretation of law: does Dworkin think he
is Hercules?

Lecture 13

 is there obligation to obey law?

 firstly: what is legal obligation?
o Not all legal rules impose obligations:
 Some legal rules are about other rules (remember Hart’s secondary rules)
 Some legal rules are primarily about rights (Dworkin seems convinced they all are)
o But it seems clear that:
 Secondary rules only make sense against the background of obligation-imposing
rules
 Rules that assign a right must also assign, logically, the right’s correlative duties
(remember your Hohfeld).
o Law necessarily imposes at least some legal obligations.
o But it is not clear what it means to have a legal obligation.
o It means that, in a certain sense, a given conduct is foreclosed to the person who has the
obligation.
o But it is not that the conduct is physically impossible or even that there is no real
alternative.
o three candidate accounts of what legal obligation is
 “Jack has a legal obligation to do X” the same as:
 1. “If Jack does not do X, he will be punished” – Austin – legal norms are
backed by sanctions
 Or
 2. “There is a social practice within which Jack not doing X would/could
result in social criticism that would be generally regarded as warranted. –
hart’s idea that legal rules are complex social practices
 Or
 3. “There is a special kind of reason for Jack do to X” – authoritative reason
o More than one type of reason can bear on our decisions.
o One type is the “Authoritative Reason”.
o An “Authoritative Reason” gives you a content-independent reason
to act in a certain way (practical authority) or believe something
(theoretical authority).
 Authoritative reasons require compliance regardless of their
merits.
 As Robert Paul Wolff famously put it: “Obedience is not a
matter of doing what someone tells you to do. It is a matter of
doing what he tells you to do because he tells you to do it”
 There are many situations in which it is perfectly rational to do
that. The question is:
 Can Law provide authoritative reasons?
o law’s authoritative reasons: preliminary clarifications
 Can Law provide authoritative reasons for action?
 Translates as: Can legal obligations provide pro tanto
authoritative reasons for action?
 5 possibilities
 Yes, because that is constitutive of belonging to a
political community. – yes bc it is associative obligation
– there are certain kinds of social bonds that have in-
built normative structure e.g. if ur friends w someone u
have certain duties; political community is just like that
- being part of political community (society) means that
u have mutual duties
 Yes, because doing so is instrumentally valuable
(Normal Justification Thesis, Common Good
Arguments, etc) – obeying the law is a means to an end
o joseph raz: proposed normal justificiation thesis
– normal way to justify someone’s authority is to
claim that obeying law is instrumental to bringing
abt certain goods (e.g. efficiency, achieving
common good, flourishing human life)
 Yes, because we consented to that (“We the people…”)
– democracy
o criticism: most people don’t actually know details
about constitution etc. – so how can we say that
they consent?
 Yes, because it is just fair.
o criticism: it’s difficult for u not to benefit from
certain things without e.g. escaping society
 No (Anarchism) – there is no prima facie reason to
obey law
o criticism: the fact that we don’t have clear theory
abt why we should follow law doesn’t mean that
we shouldn’t follow law
o each of “yes” answers accepts exceptions
 universal obligation vs contingent obligation
 pro tanto reason vs conclusive reason
Lecture 14

 Law and the virtues

 Virtues are settled dispositions of character; foil to virtue is a vice; courage is a virtue; foil to
courage is recklessness/cowardice
 Virtues are complex dispositions of character.
 Virtues are either moral or intellectual.
o inclinations to do/think/believe the right thing
 All three dominant kinds of ethical theory (normativism, consequentialism, and virtue Ethics)
have something to say something about virtues.
o normativism: focuses on idea of morality, set of norms/rules that u have to follow in order
to be moral person
o consequentialism: sees right and wrong, good and bad, all this moral vocab as referring
to state of affairs; ur action is right/wrong depending on its effect on state of affairs; actions
are judged purely on their consequences
o virtue ethics: ethics are about the kind of person u need to become
 these 3 ethical theories give different roles to virtues
 our intuitions speak to different theories, e.g. when virtues are in conflict – telling the truth and
saving lives
 Virtue Ethics puts virtues at the centre of its approach.
 virtues as settled
o Moral and intellectual virtues are acquired (they are not natural inclinations; they’re innate)
o They are acquired by habit/training, not by “teaching”
o They are “stable and enduring”
 virtues are complex
o They are not simply an inclination to react in certain ways to familiar contexts.
o They also comprehend (at least):
 A perceptive element (a disposition to notice aspects of the world that are opaque
to others) – a disposition to perceive which facts are relevant5
 A motivational element (a disposition to act in certain ways)
 An emotional element (a disposition to feel in appropriate ways). – e.g. in response
to injustice
 moral virtues and practical wisdom
o Moral Virtues (like courage, temperance, and justice) are intrinsically connected with the
intellectual virtue of practical wisdom.
 virtue ethics and its foils
o Virtue Ethics
o vs
o Consequentialism
o vs
o Normativism
 dominant ethical
approaches
o normativism seeks to
give criteria to
identify moral values
so u have guide to do
what’s right
  2-stage process: find rules + use rules
 law in each dominant ethical approach

 Regardless of one’s approach to ethics, the daily operation of law might be predicated on the
possession by certain agents of virtues.
 one example: legal decision-making and practical wisdom
o Practical Wisdom is often said to be a necessary trait of character of a good lawyer.
o Practical Wisdom allows the agent correctly to identify the legally relevant features of the
particular situation.

Lecture 15

 So far we focused on:

o (i) rival accounts of the law
 In Part One, we discussed rival accounts of the law which are not predicated on
law’s merits.
 In Part Two we discussed a number of accounts of the law which are predicated
on Law’s merits (Natural Law, the “inner morality” of law, and Interpretivism).
o (ii) Some relations between Law and Morality (the moral obligation to obey the law and
the place of moral and intellectual virtues in a lawyer’s life).
 In Part 3, we discuss how law interacts with other spheres of social action.
o We analyse varied ways in which law works in society; in connection to that we will
discuss:
 Durkheim’s forms of social solidarity
 Weber’s conception of rational legitimacy
 Marx’s account of superstructures.
o We discuss claims that other spheres of social interaction (in particular politics and
economics) should impact in the way lawyers work; in connection to that, we will discuss:
 Law and Economics
 Critical Legal Studies
o We will address a number of related issues:
  (some) non-legal factors which do (or should) affect legislative and judicial
decision-making;
 how different legal systems are products of different historico-socio-economic
conditions;
 the role of law within the broader historico-socio-economic context.
 What is distinctive about the legal Sociology (or Social Theories of Law)?
o An emphasis upon:
 Social structures and institutions based on social norms that pre-exist and adapt
to legal regulation (e.g. family; professional circles).
 Social stratification (e.g. interest groups; minorities; social classes).
 Broader social functions of law (rationalisation; emancipation; law and change).
 the economic analysis of law – certain way of accounting law that rose to prominence particularly
in US from 1960s onwards
o The Economic Analysis of Law = Law & Economics
 explanatory aspect – says that rules, institutions, etc. can be explained by looking
at economic function – economist said that delict/liability has to be understood as
attempt for us to allocate risk in way that reduces transaction costs [reduces net
value of transaction] –
 methodological aspect
 policy-making. question of how are we going to allocate risks here between
these 2 types of people in way that’s more efficient – striving to achieve
more net economic output – leads to changes in law; another big economist
Richard says that as technology evolves we can predict risks more
efficiently to overcome law of delict; everything will be done with insurance;
as soon as right economic conditions crop out we will be able to securitise
everything so there will be no point in having delict/torts; delict/torts is
second best to best way we allocate loss [decide who is going to bear that
loss]; if everyone has insurance there’s no problem
 adjudication.
o Applying Economic Models of Utility-Maximization to Law  e.g. vicarious liability (the
responsibility of a superior [employer] for the acts of their subordinate [employee]) has
been explained in terms of such models.
 allocating risks in such a way that I as an employee in causing damage to third
party will have to pay them for damage I produced; I as an employee will have
another lawsuit against my employer bc he put me in my situation; vicarious liability
was more efficient way to get rid of middle man and go directly to employer; unfair
o The Principle of Efficiency:
 e.g. minimising transaction costs; efficient allocation of risk.

Lecture 16

 for Durkheim sociology is ‘scientific study of social facts’ – wanted to apply scientific method to
society
 Law as central object of study of sociology.
 Why focusing on law?
o Law is an objective social fact – it’s more easily accessible
o It is more systematic than other social institutions (e.g. family, religion, economy) and,
thus, offers itself to a scientific analysis.
 o Its coercive force facilitates its evidence-based identification. – e.g. structure of prisons,
etc.
o It is more visible in its effects.
o It is the key expression of collective consciousness and reflects its transformations.
 if law stems from our collective consciousness, it would help us to tap into that collective
consciousness
 Society is held together by social solidarity.
 There are different kinds of social solidarity; social solidarity is not monolithic
 Law reproduces the principal forms of solidarity in given social group.
 Therefore: If we identify (sociologically) different kinds of law, we will find “the different forms of
social solidarity that correspond to it”. – e.g. public law, international law, etc.
 operation of society through different means
 what causes social solidarity?
o Every society is predicated on a certain form of division of labour – to achieve certain
goals
 Durkheim said this prob wasn’t true in pre-modern societies bc of strict division of
labour between men and woman; at time of him writing women were slowly
becoming more involved in labour; so at this time law wasn’t matching social facts
– women still didn’t have much capacity yet
o Different types of society will allow for different forms of division of labour.
o Different forms of dividing social labour would give rise to different forms of solidarity which
are mirrored in different kinds of laws.
 transformation from primitive society to modern society
o Primitive Society
 Simple (less) Division of Labour. – no level of specialisation – some things certain
people do but most things we all do
 Prevalence of Mechanical Solidarity (effective threats, ideological monism). –
solidarity in which different parts of society are forced into cooperation by certain
means, e.g. threats of ostracism when u deviate from common ideology; monolithic
idea of what it is to be successful member of society – bc we do more or less the
same, the pattern that holds us tgt means we have same sense of right and wrong;
deviations are threat to everything; so deviations treated quite harshly
 Repressive Law (severe retaliatory sanctions e.g. torture, capital punishment,
ostracism) – in primitive societies there’s kind of law that takes pride of place;
sanctions for deviations are quite severe, e.g. in Classical Greece/Athens there
aren’t prisons – u get killed like Socrates or ur ostracised if u don’t abide by
ideological monism
o Modern Society
 Complex Division of Labour – e.g. computers – lots of work went into making it
 Prevalence of Organic Solidarity (interdependence, value pluralism, constructed
consensus) – e.g. each has function; they are equally mutually dependent; when
one fails, everyone fails; even if u disagree w each other u can’t just exterminate
them out of society
 Restitutive Law (repairing the breach – e.g. compensation, imprisonment and
release back to society) – law greases engines of social cooperation rather than
punishing someone who deviates, e.g. contract law, tort law when someone
creates disturbance in flow of labour – focus is not on person but way goods are
circulated into society
  there are certain kinds of law that only crop up when u have complex division of
labour; so in primitive society u don’t have sufficiently complex division of labour to
require these laws to regulate such complexities
 In the same society, there would normally be a combination of mechanical and organic Solidarity.
 That is why we still have repressive law in modernity.
 durkheim’s approach
o Demonstrates why law is central to a range of different societies.
o Emphasizes the role of law in the institutionalisation of the new ideas and modes of life
that emerge through social change.
o Shows the diversity of law’s functions: 1) symbolic (law as a crystallization of solidarity)
and 2) steering (law as a safeguard against threats to solidarity – as a way of
reconstructing solidarity).
o Might treat law as more dominant within society than it actually is (e.g. economics is no
less central in societies nowadays). – gives too central a role to law – Marx would say that
law is prat of superstructure but what actually shapes society is underlying economic
exchange; law is at best byproduct so all this idea that DUrkheim has that law has
important role to play in shaping social society is seen as UNDERLYING; reality of society
is primarily economic relationship, not legal one;
o Law treated as a unified whole. No room for explaining conflict and power struggle in the
social arena (e.g. class stratification) – e.g. left wing vs right wing – so perhaps Durkheim
doesn’t see these struggles as occurring within law
o Over-simplifies certain aspects of law (e.g. narrow view of criminal law as repressive law)
– depends on whether u need more sophisticated account to describe how we relate to
each other in society

Lecture 17

 The Ideal-types of Law and Social Domination (Max Weber 1864-1920)

 Weberian sociology
o Is comprehensive and influential.
o Contains explanatory models for:
 The emergence of capitalism and its relation to Protestantism – some kinds of
social change trigger economic changes – as soon as certain strands of economy
become more prominent (as soon as Protestant grabs hold, relationship between
religion and ur success now is established so infrastructure of society beyond
religion’s infrastructure – mentality that if ur rich it’s bc god loves u – sets in
 The emergence of social authority (“domination”) throughout history. – creates
social groups that control each other/relate in different ways
o Contains a complex account of social stratification (through the lens of legitimate
domination).
o Contains an account of the functions of Law in different types of society.
 explanatory: the kind of model that Durkheim produces
 comprehensive: the kind of model that Weber produces
 DUrkheim tries to create exaplnatory models – to show cause and effect between social facts
that can be ascertained objectively; weber thinks that in order to understand sociology we need
to see how things work through heads of people engaging in society
 weber’s model is reminiscent of hart’s internal point of view
 Durkheim aims to produce detached account – objective (external point of view)
 weber wants intersubjective pov – worlds as viewed tgt – trying to understand and explain how
cause and effect work in society by way we see world within society, not to judge

 example
o looking at football match from objective point of view – without taking into account internal
understanding of player
 tho u r accurate in predicting cause and effect u can’t see things from point of view
from players so u miss some things
 ideal-type methodology – u get a few people and try to build from these few people data to create
model types bc u can’t get info from 7 billion people
o ‘Ideal-types’ are the key conceptual tools of interpretive sociology:
o Abstract references to all key features of a social phenomenon that help us organise our
empirical data and, in so doing,
o help us put the phenomenon in a broader political and historical context.
 ideal types of law
o 2 sets of criteria
 distinction between rationality and irrationality/distinction between formal law and
substantive law
 in substantive model of law ur worried abt getting it right in instant case that u have
in front of u; u don’t care abt other cases that might come in front of u in future;
forming case on basis of pre-enacted rules is not ur priority; u don’t have them; u
have to look at each case on its own merits – asks judge to regard each particular
case on its merits
 formal – u have series of standards known in advance by which u decide – asks
judge to apply ideal patterns
  relationship of coherence between action that is performed, decision that is made
and purported objectives u have in performing ur action
 rational action correlates with result u intend to produce
 irrational action doesn’t correlate with result u intend to produce
 so means-end relationship – it’s rational if u choose right means to produce ur
intended end
o Formally Irrational Law: e.g. trial by ordeal, oracles.
 series of pre-produced rules/rituals
 rules and systems don’t relate to ends u want to produce
 trial by ordeal – u have formality/pre-enacted rules (certain proceduers – u choose
champion, he goes there, agreement must be made between praties) but purpose
of trial by ordeal is to get to truth of matter -whoever gets best champion gets truth
on his side – so there is no congruence between decision ur making (getting
champion) and what u want to achieve
o Formally Rational Law: e.g. codified law (codes of civil law).
 law of modernity – kind of law that reaches its apex in legislation, coded law in
particular, e.g. german civil code
 pre-enacted set of rules; fit for purpose – creates some objectives even tho not
best rules – e.g. predictability; we now know what’s likely to happen if u break rule;
level of certainty; formal equality between people and moral value
o Substantively Irrational Law: e.g. Khadi justice (absolute discretion, ad hoc adjudication).
 substantive bc it’s not pre-bound by any formal rules; each case is decided on its
merits
 Khadi justice of some well-developed Muslim countries – Khadi looks at all facts
and makes decision – Solomonic judgment
 irrational – doesn’t give what law is made for – predictability, certainty – it is
particular to situation
 conjoined twins case in UK – Mary and Jodie – one could survive; other couldn’t;
both were going to die; they had to decide whether or not to kill one of babies to
save other; there was no clear general rule to apply to situation; judges said there’s
no precedent so they said this was one-off decision; they wont repeat this in future
– ad hoc adjudication; generates absolute discretion; so main objectives of law
cant be achieved in this particular way – irrational even tho focusing on substantive
values of case
o Substantively Rational Law: e.g. theocratic or communist (secular) regimes.
 series of relationships between
 decide each case on substance but substance is theology or party principle
 forms of domination
o taking responsibility for balancing all pros and cons of situation
o outsourcing responsibility – asking someone else to decide what u should do and
accepting their decision (either out of fear/lack of self-confidence) – this is where
domination happens – when ur outsourcing to someone/something decision – he’s not
trying to make judgment as to whether he should or shouldn’t do it; he’s taking it as
sociological fact that sometimes u do it and sometimes u don’t
o 3 basic ways in which we as society do it
 charismatic – great leader/inspiring university teacher tells u what to do – u
outsource it bc of their charisma
  type of legal thought: formally and substantively irrational – whatever rules
that are created (e.g. Hitler ordered that each Jewish person was de-
nationalised before being sent to concentration camp) are used as a result
of precedent or on the go
 how u administer power in these decisions: relationship is primarily
personal, hence fleeting nature of relationship
 traditional – u obey person bc that’s what u’ve been doing forever as long as u can
remember – explains most of medieval society, religious authorities, etc. – u
outsource it bc u’ve been obeying them for centuries
 type of legal thought: formally irrational and substantively rational
 administration: often patrimonial – there’s person who owns land that calls
all the shots politically
 legal-rational
 formal-rational
 administration: bureaucracy – bunch of people who are specialists in
providing means – what’s best way to win case?
 evaluation of weber’s account of law
o Ideal Types: They help us systematize key features of law, but they do not leave room for
the particularities of some legal systems (e.g. his ‘England Problem’).
 English law in particular – in England u don’t have formal rational law in terms of
code – u don’t have previously enacted formal rules that are clear and precise and
try to create for capitalists what they need for flourishing capitalist economy; but
capitalist economy still flourishes; what guarantees predictability is small group of
people from same social strata that know each other
 they can’t account for everything
 formal rational law was kind of law that allowed for growth of capitalism bc formal
rationality generated certainty which connects to commerce and exchange and
trade which lifts up capitalism as means of socio-economic organisation
 England problem – in England there’s nothing like formal rational law; even before
legislation became so important, strong capitalist economy had already developed
o Ambivalence about modern law and capitalism: Weber praises the formal rational
character of modern law in Western societies and the rationalization processes of
capitalism, but he also talks about the ‘iron cage’ of bureaucracy.
 form of social organisation of formal rational type of domination is bureaucracy
which
o A narrow understanding of domination that does not account for its manifestations in the
economic or the cultural (but non-legal) sphere: domination understood as only applicable
to the legal and political relationship between the ruler and the ruled.
o Like Durkheim, Underplaying Conflict  probably due to the emphasis he places on
systems of domination and on social control.

Lecture 18

 karl marx’s social theory of law

 Karl Marx:
o The Philosopher,
o The Economist,
o The Political Theorist,
 o The “Prophet”
o The Sociologist.
 An agenda to understand Marx(ism):
o it’s a philosophy of history – for him history starts with state of primitive society, e.g.
community of hunters/gatherers; then there was moment where primitiveness was offset
with act of appropriation – this is mine, not urs
o Social Structures and Institutions: Means and Relations of Production/Superstructure.
 superstructure: keep infrastructure in place
o Social Stratification: Social Classes; Class Struggle; Special Emphasis on the Class
Struggle between the Proletariat and the Bourgeoisie.
 it’s crucial to understand way in which society changes through category of class
 classes change over time but there is always going to be classes; each particular
role of production will be doubled in particular set of classes
o Functions of Law: Reinforcing the Ruling Class’s Economic and Political Dominance.
o Law and Social Change: series of transformations though history as class composition of
society changes
 law stabilises the base
 there is always class struggle wherein one class always has upper hand; for it to
maintain that control it requires law to stabilise base
 social change comes through class struggle
 Similarities between Marx, Durkheim, and Weber:
o Historical approach – they all have philosophy of history – trying to prove their point by
looking at social changes in history
o Distinctiveness of the modern age – they all think that modern age is distinctive/particular
(in a good way)
o Prominence of law in modern society
 differences between Marx, Durkheim, and Weber
o Marx believed in changing the world. The point of his work was not just theory, but
(revolutionary) PRAXIS. Durkheim and Weber were merely trying to track social change.
o Marx described capitalism as an economic system predicated on exploitation and
alienation. whereas DUrkheim and Weber didn’t have bad thing to say abt capitalism.
o Marx’s view of law was not positive: law was meant to protect the interests of the dominant
social class.

Lecture 19

 how law relates to social changes

 Marx’s Theory of History: Historical Materialism
o BElieved that society has never been shaped by development ideas but underlying
relations in exchange and production.
o We are MATERIAL beings. History is about our developing relationship with material
conditions of life. How do we produce and exchange material objects?
o Each period of history can be classified in terms of RELATIONS OF PRODUCTION AND
EXCHANGE (that is, in terms of how we produce and exchange material objects).
o Each period is distinguished by a different set of socio-economic CLASSES, each of
which has a different role in the relations of production and exchange.
o These classes tend to be in conflict with one another. Conflict between classes
understood as a DIALECTIC RELATIONSHIP.
 o Out of each conflict between classes is created a new type of society.
o dynamic force of history – what makes history move – is conflict between classes which
are predicated on that exchange
 Phases of Economic Development
and Corresponding Class Systems
 past
o hunter-gatherer society – primitive communism – hunter hunts; gatherer collects fruit from
tree – appropriation
o slave societies – owners and slaves – land is appropriated by people who force others to
work land for them – change mode of production – larger means of appropriation
o agricultural/feudal societies – lords and vassals/serfs – large chunks of land; can’t merely
be cultivated by land lord; would be v difficult to cultivate by slavery – bc then u’d have
too many slaves who would then start revolting – so 2 classes form on basis of economic
need
 present
o capitalist societies
 bourgeoisie take place of dominant class; proletariat becomes under-class; each
of those struggles relates to particular mode of production, so for instance
capitalism – v different from medieval production ins ense that u have 2 thigns
 in pre-industrial capitalism u have dramatic increase in commerce – u can sell in
farmers’ market + elsewhere bc of surplus of goods
 production doesn’t generate enough surplus to invest elsewhere
 post-industrial capitalism – modes of production change radically
 mode of production relates to different class structure
 future
o socialist society – proletariat will take over and by force eliminate classes – dictatorship
of proletariat by progressively making means of production collectivised (belong to
everyone); so when u get there u don’t need dictatorship anymore
o communist society – classless
 although he does’nt pass judgment and tell us what communism is gna look like, he mentions
that communism is gna be place of human emancipation – we will be free from shackles that
economic production generates
 but that could only work under some conditions
o elimination of scarcity – so everyone can have whatever they want
 Dialectic: form of thinking in which 2 people exchange ideas, revise their opinions; someone else
comes
o An explanatory template for social change:
o the consideration of conclusions as reconciliations of propositions and
counterpropositions.
o the resolution of conflicts through the mutual transformation of the conflicting parties.
o THESIS ↔ ANTITHESIS
o ↕
o SYNTHESIS
o Dialectic Relationship: when opposing forces clash, this has a transformative effect,
leading to a new form of society.
 relationship between classes – one defending one mode of production, the other
defending a different mode of production
  the moment we destroy structures of medieval society and transform our
production in production of surplus in terms of commerce, another struggle
starts – this time between bourgeoisie and proletariat; history evolves as series of
clashes that revolve into revolution
o For instance: when the proletariat and the bourgeoisie clash, this can result in a
proletarian revolution, leading to a classless society.
 law and class
o functions of law in society
 Law belongs to the Superstructure that stabilities economic base rather than the
economic Base. – benefits certain class (bourgeoisie); discontentment is tamed
 Superstructure: social institutions and areas of activity [e.g. family, religion, politics,
culture].
 Base: economic relations (notably, the ownership of the means of production)
 Functions of Law in Capitalist Society
o Reflection of Economic Base
o Instrument of the Capitalist Class
o Ideological Cover for Capitalism – sometimes those structures
stabilise system by force, e.g. we criminalise theft/invasion of
property which force people to comply – we develop way to see world
that refract and distort underlying reality – that’s why he doesn’t pass
judgment – bc he thinks his judgment is product of false
consciousness
o Site of Struggle between Classes – proletariat tries to grab control of
law; bourgeoisie tries to take it back
 law and economic base
o Marxist thinkers (such as Pashukanis) have remarked that law is not only part of the
superstructure.
o Market societies are predicated on the economic concepts of ‘exchange’ and ‘ownership’
o But the conditions under which exchange happens are determined by the law (and
similarly for ownership).
o So perhaps aspects of the law are ingrained in the economic base of society.
 2 marxist questions about law
o In the present – can law be an effective way of combating the injustices of capitalism
(assuming capitalism is unjust), or is law irredeemably corrupted by capitalism?
o In the Future – will law just ‘wither away’, or would even a ‘perfect’ communist society still
require law?
 at some points marx seems to have thought that in communism all law will
disappear – but many Marxists still ask this q

Lecture 20

 Critical Theory and Jürgen Habermas (1929-)

 Critical Theory vs Traditional Theory
 Critical theory starts as an upshot of Marxism (the academically respectable face of it).
 The Frankfurt School starts with an endowment in 1922. – aimed to study socialism
 Theory and Praxis are connected.
o marx realised that way in which world is structured is way in which we act – the way we
act changes the way we perceive things
 o which is what Horkheimer came up with
 From 1937 decisively moves on from Marxist orthodoxy, with Horkheimer who argues that:
o There is an opposition between “traditional” and “critical” theory
o “Critical” theory, is “concerned at every turn by a concern with the reasonable conditions
of life” – it’s not set of propositions, but a practice – a way to engage in theories
o “Traditional” theory mere generalizations based on experience, but it is blind to
“reification” – way in which we approach object of study we already come to it w certain
pre-conceptions – we look for what we know is already there, consciously or
subconsciously – there’s a lot of confirmation bias – we only see things that conform to
our vision of world – we disregard things that don’t
 A Roadmap for Jürgen Habermas’s Social Theory of Law – not happy with critical theory bc it
was constant process
o Social Structures and Institutions:
 Capitalism with special emphasis on the bourgeois state.
 The steering media of money and power.
 ‘System’ and ‘Lifeworld.’
o Social Stratification:
 Class struggle
 Likelihood of Alienation.
o Further Functions of Law:
 Often sustains and conceals forms of domination – like Marxism
 But it can also facilitate communicative action and normative integration.
 Habermas vs marx
o Similarity:
 Capitalist society is characterized by forms of domination and inequality which
ought to be removed
 marx refused to pass judgment on capitalism
 Habermas’s more complex theory allows him to pass judgment – he has
normative theory abt what’s right/wrong abt inequality
o Differences:
 Economic factors are not the sole reasons for injustice.
 Habermas thinks there are different sources of injustice whereas Marx only
saw economic factors as sole reasons for injustice
 It is neither possible nor desirable to remove law in all its forms.
 Habermas thinks that even if we were to build classless society, law still has
v important role to play
 So Habermas is a ‘revisionist’ Marxist
 the system and the lifeworld
o According to Habermas, when it comes to the structure of society, the Marxist distinction
between the Base and the Superstructure should be replaced by the distinction between
the System and the Lifeworld.
 System: Realm of Necessity - relations governed by economic and administrative
imperatives and structured by:
 the media of money (monetary incentives  see Marx’s capitalism) and
 administrative power (bureaucratic rules  see Weber’s domination)
 Lifeworld: Realm of Freedom - the shared viewpoints, life forms, values and
cultural identities that develop through interpersonal relations over time in various
 social groups (e.g. families, social networks, cultural communities, religious
groups).
o saying that there is a bit of lifeworld that’s based on continuous exchange of
communications between us
o concerned w how the state controls u; marx is concerned w how economy controls u
 law negotiates constant conflict
 double role of law in society
o In the capitalist society and the bourgeois state, the system tends to colonize the lifeworld
(to render it subservient to structures of money and power).
o Yet the lifeworld should not be entirely colonized by the system.
o The double (and arguably contradictory) role of law consists in the fact that law acts both
 as a medium that sustains the system (the structures of money and power)
 and as an institution that stabilizes the life forms and values of the lifeworld and
protects it from full colonisation.
 The Progressive Potential of Law as Institution
o Contrary to Law as Medium, which is a matter of the imposition of class power, Law as
Institution requires broader legitimation.
o Its legitimation and its progressive potential depend on:
 Its capacity to facilitate communicative action, that is, the deliberation among equal
citizens of a democratic polity through securing the conditions of ‘undistorted
communication’ (e.g. parliamentary democracy and judicial review).
 Its capacity to foster normative integration
 through nurturing a consensus-driven public sphere that allows for a
plurality of life forms (e.g. religious pluralism in constitutional democracies)
 through producing legal policy outcomes which reduce inequality of wealth
and status between classes and other social groups

Lecture 21

 critical legal studies

 Optimism in Law? – law came to sort out problems of social ordering, complete better forms of
rationalisation (weber), create social solidarity (Durkheim), is embodiment of important political
values like integrity (dworkin)
o Many of the scholars we discussed in Part 3 believe that law has great progressive
potential: Durkheim, Weber, Habermas, Law and Economics Scholars (but also others
such as Dworkin).
o Others, discussed in particular in Part 1, believed it to be possible (and sensible) to
describe the law as a phenomenon that is clearly distinguishable from (albeit related to)
politics: think Kelsen and Hart.
o Critical Legal Studies Scholars beg to differ on both accounts:
 They make it their business to explain how law is often a ‘regressive’ force – law
can work as way to stop us from evolving into better place
 They criticize the supposed “neutrality” of those who think of law in a separate
register from politics.
 critical perspective: An attempt to unmask law’s politics and reveal the forms of domination that
lurk beneath law’s “neutral” rhetoric.
 some forms of domination
o Economic Domination
  (e.g. the Marxist approach) – law stabilises oppression/suppression that stems
from economic base
o Cultural domination
 (e.g. the Frankfurt School, including Habermas)
o Gender Domination
 (e.g. Feminist Legal theory)
o Racial/Ethnic Domination
 (e.g. Critical Race Theory)
o CRITICAL LEGAL STUDIES
 All forms of domination considered
 Critical Legal Studies Task 1
o To unveil the role played by law in diverse forms of domination.
 Law and legal process as key sources and amplifiers of domination.
 Law mobilizes bias through attitudes of lawyers, judges, etc
 Law also reinforces underlying societal bias through eg
 emphasizing symptoms rather than causes;
o e.g. discourse of criminality of crime – lots of people in Glasgow
commit crime; police arrested them and lock them up; but it’s
symptom of social illness; so they looked at causes of violence; law
has way of focusing our minds on particular events and blinding us
to causes
 emphasizing the immediate event rather than context
o (eg formal equality masks real inequality, - 2 people and their word
who promised/reneged on their word
o commitment to maintenance of order masks need for reform)
 Task 2
o To unveil the ‘contradictions’ within the legal discourse thus laying bare the need for
political choice.
 In most areas of law there are rules, precedents and doctrines that reflect each
side of a social conflict between an oppressor group and an oppressed group.
 For instance:
 part of positive contract law reflects capitalist concerns with ‘neutral’
contracts
 another part reflects concerns about the weak contractual party and its
protection. e.g. principle of good faith
 2 people are free to negotiate whatever they want but principle of economic
duress means that contracts are not valid if performed under economic
duress – to defuse disparity of info
 e.g. how law of rape has developed to include rape in marital home
 Task 2.5
o In order to lay bare law’s political commitments some CL Scholars argued that the legal
discourse is not truth-apt.
 ‘Descriptions’ of the law present themselves as neutral but there is no such thing
as a neutral description of the law.
 That is not always a result of individual dishonesty, as the scholar ‘describing’ the
law might also have been hoodwinked by the ‘neutral’ discourse.
 Some, more radical, versions of CLS refuse to accept any form of truth (eg
‘deconstruction’ scholars).
 Task 3
o A call to arms:
 If neutrality in legal academia and legal practice is impossible,
 If law is the thin veil that disguises naked power
 If such power is used by one part of society (a class, a gender, a race, etc) to
oppress another
 If, as a result, law is a battleground between regressive and progressive forces,
the CLS scholar enjoins you to:
 Take Sides
 a preliminary assessment
o Advantages
 Fuller understanding of forms of domination in society
 Less fatalistic attitude to the role of law – changes are possible through many
channels, including legal education itself
o Disadvantages
 Danger of diluting the significance of economic class as main source of domination
 Overestimates the transformative potential of law (and lawyers)
o