Dr Gavin Byrne

Legal Theory Seminars

2019-2020

Seminar 1 – DEBATE AND FEEDBACK EXERCISE

‘Making a Good Argument I’

Semester 1, Week 2

Seminar Reading:

The following extract only:

Spurs fans who use the word “Yid” in terrace chants should not be prosecuted — as long as they are
not motivated by hate, according to David Cameron.

The Prime Minister reignited the row over the use of the word when he made clear his view, which
contradicts the Football Association and Jewish groups who have been insisting it is always offensive.

Many Jewish and non-Jewish Tottenham fans refer to themselves as the “Yid army” and to players as
“Yiddos”.

The Jewish Chronicle

18th September 2013

1. “Making a good argument” is the key to doing well on this module. Read the above
quotation. We are going to debate this issue in the seminar – you need to prepare
arguments from both sides of this current debate (because you do not know, yet, whether
you will be on the side of then Prime Minister Cameron or that of the FA). Once we have
had the debate, I will offer some feedback on how the debate went and the lessons to be
learned about how to make a good argument when it comes to your written work (both
formative and assessed). There is no prescribed reading for this first seminar; we are just
going to work on skills. Nevertheless, in preparation for the debate, you may wish to
independently read around this issue.

Please note that I must insist we all refer to “The Y word,” where necessary, throughout
our debate and not the term(s) referred to in the above quotation.
 Seminar 2 – Natural Law
Semester 1, Week 6

Seminar Reading:

John Finnis, Natural Law and Natural Rights, chs. III, IV, V.1 (“The Good of Practical Reasonableness
Structures our Pursuit of Goods”), V.7 (“Respect for Every Basic Value in Every Act”), and V.10 (“The
Product of these Requirements: Morality”) - NOTE there are multiple editions of this book, the text
is the same for each of the relevant sections so any edition will do.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts. Such reading is not strictly required for the seminar, but you are encouraged to
make use of such sources if you are struggling to make sense of the seminar reading.

Questions:
1. What does Finnis say are the seven ‘basic goods’?
2. What does it mean to say that these are ‘basic goods’ and that they are ‘self-evident’?
3. What is that, according to Finnis, makes these good?
4. Do you have any criticisms of these “goods”?
5. Where do moral questions come from, according to Finnis?
6. Is Finnis correct to accord the good of Practical Reasonableness a special status?
7. Can one explain the value of these seven goods in other ways?
 Seminar 3 – Hart
Semester 1, Week 11

Seminar Reading:

1. Hart, The Concept of Law Ch V, Ch VI.1 (ie “The Rule of Recognition and Legal Validity”), Ch
VII.1 (ie “The Open Texture of Law”) and Ch IX.2 (ie “The Minimum Content of Natural Law”).
NOTE there are multiple editions of this book, the text is the same for each of the relevant
sections so any edition will do.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts. Such reading is not strictly required for the seminar, but you are encouraged to
make use of such sources if you are struggling to make sense of the seminar reading.

Questions

1. Where do legal rules come from according to Hart? Why is he interested in this question?

2. What is law, according to Hart?

3. What is the difference between ‘the internal aspect’ and ‘the external aspect’ of rules?

4. What types of rules are there, according to Hart, and what is the difference between them?

5. Why do we need ‘rules of adjudication’?

6. What is the relationship between law and morality, according to Hart?

7. What is Hart’s major criticism of Natural Law theory?

 Seminar 4 –FEEDBACK EXERCISE
‘Applying Theory to Law’
Semester 2, Week 1

Making a Good Argument II

Task: In Seminar 1, we discussed how to make a good argument. In Seminar 4, we are going to try to
apply some of our findings to the Legal Theory course so far. For these purposes, please do the
following in preparation for this seminar:

1. Select any argument by any theorist that you have encountered so far on this module. Plan
how you would either defend that argument, or argue against it (the choice is entirely
yours).

2. For these purposes, we want you to make use of ONE legal example that you have come
across. You may take this example from another module on the course (a case that you have
read, for example), from current affairs (a legal topic that is currently being debated in
parliament, for example), from history, or even from a hypothetical thought experiment (a
bit like Rawls does with ‘The Original Position’). All that we ask is that it should be an
example that you have selected, yourself, for the purposes of this seminar – do not simply
re-use an example employed by one of the theorists themselves (eg ‘The Grudge-informer
case’); doing so would defeat the purpose of the exercise and mean that you get much less
value from feedback.

3. Be prepared to discuss the following questions:

i. What is your argument? [This question is likely to take up most of the seminar].
ii. How did you go about selecting a theorist and why did you select this particular
one?
iii. How did you go about selecting an example and why did you select this particular
one?
iv. How did you use the feedback received in Seminar 1 in order to prepare your
argument?
v. Did you notice how other arguments that you have heard in this seminar made use
of the feedback received in Seminar 1?
vi. Did you feel that any of the other arguments that you have heard in this seminar
might have made better use of the feedback received in Seminar 1?
vii. Did you learn anything new about ‘making a good argument’ as part of this exercise?
 Seminar 5 – Dworkin
Semester 2, Week 6

Seminar Reading:

1. Ronald Dworkin, Law’s Empire, Chapter 1 Section on “The Real World” and “Semantic
Theories of Law”, up to but not including the section on “Defending Positivism” (stop
reading at that point).
2. Ronald Dworkin, Law’s Empire, Chapter 7, up to but not including the section on “Some
Familiar Objections” (stop reading at that point).
NOTE there are multiple editions of this book, the text is the same for each of the relevant
sections so any edition will do.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts. Such reading is not strictly required for the seminar, but you are encouraged to
make use of such sources if you are struggling to make sense of the seminar reading.

Questions:

1. What does Dworkin mean by the following terms and why do they matter?

i. ‘The Semantic Sting’

iii. Empirical and Theoretical disagreement

2. Is Dworkin a Natural Lawyer?

3. Explain Dworkin’s example of courtesy, and what he tries to demonstrate with it.

4. What does Dworkin mean by saying ‘integrity is our Neptune’?

5. What is ‘integrity’ as you understand it? How well or badly does it fit with Dworkin’s use of
the term?

6. Explain Dworkin’s chain novel analogy. How does this analogy illustrate the relationship
between the two dimensions of interpretation, ‘fit’ and ‘value’? Is there any point at which this
analogy breaks down?

7. Explain Dworkin’s analysis of McLoughlin: what is he attempting to prove? How successful is

he? Relate your answer to your own experiences in reading caselaw.
 Seminar 6 – DEBATE AND FEEDBACK EXERCISE

‘Feminist Judgments Project’

Semester 2, Week 10

Seminar Reading:

1. Rackley, ‘Why Feminist Legal Scholars Should Write Judgments: Reflections on the Feminist
Judgments Project in England and Wales’ (2012) 24(2) Canadian Journal of Women and the
Law 389-413.

2. Hunter et al (eds) Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing,
2009) Ellison and McGlynn’s ‘R v. A (No. 2) Commentary and Judgment’.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts. Such reading is not strictly required for the seminar, but you are encouraged to
make use of such sources if you are struggling to make sense of the seminar reading.

Task: This seminar is an introduction to feminist jurisprudence. It is based on the Feminist

Judgments project (2009) and will involve a debate exercise. The debate motion is as follows:

‘Judges should not be feminists. They should be impartial arbiters of the law.’

We are going to debate this proposition in the seminar. Prepare arguments both for and against this
proposition (because you do not know, yet, which side you will be on). We will start with the
debate, and follow with questions.

Questions:

1. What are the premises of Rackley’s argument(s) for feminist judges and judgments?
2. What was the right judgment in R v. A (No 2)? Why?
3. What is the value of the Feminist Judgments project for (a) students, (b) academics, and (c)
legal practitioners?
4. Are you a feminist? Why (not)?
 Seminar 7 – Critical Race Theory
Semester 2, Week 11

Seminar Reading:

Patricia Williams, The Alchemy of Race and Rights (London: Virago Press, 1993), pp.3-51.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts. Such reading is not strictly required for the seminar, but you are encouraged to
make use of such sources if you are struggling to make sense of the seminar reading.

Questions

1. What point do you think that Williams is making when she refers to the law’s “‘impersonal’
rules and ‘neutral’ principles, presumed to be inanimate, unemotional, unbiased,
unmanipulated, and higher than ourselves”? (p.11)

2. What is her point in response to her students complaining they aren’t learning ‘real law’?
(p.28). What do you think that we can learn about law from reading this excerpt?

3. How would you respond to the criticisms that Williams says that she received in relation to
her story about the clothing boutique (pp.50-51)?

4. What is a ‘subject position’ and what is its significance?

5. Do you think that ‘storytelling’ has value, and is it persuasive?