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Law Notes Jurisprudence Notes

Law As Rules And Principles Notes

Updated Law As Rules And Principles Notes

Jurisprudence Notes


Approximately 417 pages

Jurisprudence notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB core jurisprudence readings from Hart to Dworkin to Raz to Mill and Kelsen and much much more. These notes are perfect for anyone studying either law or the philosophy of law, no matter where they are based.

These notes are formed from readings of the primary texts (i.e. the original books) and academic papers, then condensed down as much as possible. Everything is split up by topic and y...

The following is a more accessible plain text extract of the PDF sample above, taken from our Jurisprudence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


*Hart, The Concept of Law, chs 5-7

  1. The model of law as the sovereign’s coercive orders fails to adequately depict the legal system: Hart at 77.

    1. Even criminal statutes, those that most resemble orders backed by threats, are different because they are equally binding on those who enact them.

    2. There are other varieties of law (public/private power-conferring laws) that cannot be construed reasonably as orders backed by threats.

    3. There are laws that differ in mode of origin.

    4. Account of a habitually obeyed sovereign necessarily exempt from all legal limitation doesn’t take account of the continuity of laws or the identification of legislature with the electorate

  2. Devices attempting to bring the analysis within the OBT (orders backed by threats) theory also fail: Hart at 78.

    1. Tacit order: only depicts simple scenarios (eg. general who deliberately refrains from interfering with orders of subordinates) and fails to take account of the complex nature of legal system

    2. Power-conferring laws as fragments of rules: departs too radically from ordinary conceptions.

    3. All rules are directed only to officials: no more consistent with our ordinary thinking than claiming that all rules of a sport are directed only at umpires.

    4. Separating legislature in its official capacity and private capacity: supplements the theory with something it doesn’t contain – a rule defining what must be done to legislate (only with this rule can legislature have an official capacity)

  3. This failure is attributable to the fact that the theory doesn’t include and cannot yield the idea of a rule, without which we cannot understand even the most elementary of laws.

  4. Thus, a new idea is needed: a conception of rules as primary and secondary rules.

    1. Primary rules are those that require people to do/abstain from certain actions, whether they wish to or not.

    2. Secondary rules are those parasitic upon primary rules, in that they provide that people who do certain things may, by so doing, introduce new rules of the primary type.

  5. We start with proposition that where laws exist human conduct becomes somewhat non-optional or obligatory, but the idea of obligation is complicated somehow by its definition.

    1. There is a difference between being obliged to do something and having an obligation:

      1. If we take the gunman situation, we can say that if person hands over the money, he was obliged to do so, but it’s implausible to say that he ‘had an obligation’ or ‘duty’ to hand it over. Being obliged simply relates to the motives and beliefs that some harm would result if you didn’t do as asked. It is not enough to found an ‘obligation’.

      2. We wouldn’t say that B was obliged to hand over the money if the harm threatened was trivial in comparison with the worth of the money, or if there was no reasonable probability that A would implement the harm threatened. Thus, the psychological component of being ‘obliged’ is not necessary for obligation; B’s beliefs, fears and motives are irrelevant to whether he had an obligation.

  6. Some theorists, like Austin, recognize this and conceptualize obligation in terms of prediction, but this is to be rejected.

    1. It fails to take account of the fact that transgressions do not merely predict sanctions, but also justify them.

    2. Likelihood of punishment is not a precondition: I still have an obligation to do X even if I bribed the police/have no chance of getting caught if I don’t.

      1. However, it is true that in normal legal systems, likelihood of punishment and illegality have a high correlation. There’s no point in talking about obligations without predictability of punishment, so such a statement can be justified on the presupposition of a normal working legal system (like the in/out rule in cricket presupposes that umpires would judge accurately, though this doesn’t always happen in the individual case)

  7. Obligations are marked by certain characteristics involving social pressure.

    1. The seriousness of social pressure behind rules determines whether they are thought to give rise to obligations.

      1. There are many social rules (‘take your hat off’, don’t say ‘you was’) that would be absurd to conceive of as obligations. Many social rules are conceived of as imposing obligations when the social pressure and general demand for conformity are great, and when pressure is physical but administered by the community rather than officials, we tend to conceptualize them as a primitive/rudimentary form of law.

    2. The rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life/some important feature of it.

    3. Conduct required by these rules may, while benefiting others, conflict with what the person who owes the...

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