Jurisprudence Lecture Notes Semester 1 PDF

lOMoARcPSD|2579011
Jurisprudence - Lecture Notes Semester 1
Jurisprudence (University of Leeds)
StuDocu is not sponsored or endorsed by any college or university

Downloaded by s. khairin (khairinarusman@gmail.com)
lOMoARcPSD|2579011
Introduction to Jurisprudence
Jurisprudence = legal reasoning, theory and philosophy of law
Enquiry: greater understanding of the law, what it is, what it does, and what it ought
to do
Why do we study it?

 Greater analytical capacity and critical understanding of the law
What is the law?

System of rules and guidelines enforced through social institutions to govern
behaviour in society
The system
 Government
 Ideology/politics
 Formal equality
 Sanctions
 Mediates relationships
No accepted definition of the law
Different legal theorists

Hart – positivist
Austin – positivist
Holmes – decisions of courts
Fuller – morals of society
Dworkin – interpretative concept to achieve justice
What is the right thing to do? – core question

 Law vs. morality as a regulator of conduct
 Morality = a set of beliefs, values, principles and standards of behaviour
enforced informally through social pressure
 Is legal behaviour always correct?
 Is illegal behaviour always wrong?
‘The law in its majestic quality makes it an offence for rich and poor alike to steal a
loaf of bread or to sleep under a bridge.’ – Anatole France
 This law clearly applies to the poor man – formalist statement
Prisoner 24601
 Imprisoned for 19 years for stealing a loaf of bed
 Is this right?
 UK Theft Act 1986 – 5 elements of theft – meets the criteria

lOMoARcPSD|2579011
 Is the behaviour illegal? Yes – you simply apply the statue

 Is the behaviour wrong – Not necessarily
* Difference between ILLEGAL and WRONG
Freeganism
 January 2014 – men charged from stealing food from a skip
 Is it theft to take discarded items?
 Do the reasons matter? E.g. necessity v trying to save money
 Morality of throwing away/wasting food
* Once again, moral v legal argument
* Impact of public opinion and disregard of statute
What IS the right thing to do?

1. Existing law
2. Morals
3. Combination of the two
4. Law should be changed
 Impact of legal theorists and own argument (not own opinion)

lOMoARcPSD|2579011
Law and Morality 28/09/2015 11:16:00

What is the right thing to do?
LAW versus MORALITY as a regulator of conduct
MORALITY = a set of beliefs, values, principles and standards of behaviour enforced

informally through social pressure
CAN and SHOULD we draw lines between what is morally desirable and what is
legally obligatory?
The big debate

Natural Law Theorists
 Law and morality and inherently linked
 There is a underlying morality to legal norms and standards
 Examples: Thomas Aquinas, Thomas Hobbes, John Locke
Legal Positivists
 Separation of law and morals
 Any moral value that the law might have is merely contingent
 Examples: Jeremy Bentham, John Austin
Facts and Norms

 Do you think of the law (normative rules – established on patterns of
behaviour) as being the same as physical laws?
 Human laws are rules or norms, NOT statement of fact
 Physical laws are subject to testing, verification and falsification
Legal Validity
 A legal rule does not state a fact but rather prescribes a course of conduct
 We have to examine our preconceptions about the law
 A legal rule demands that we either do something or refrain from doing
something
 A legal rule is derived from a valid authority
How can we distinguish between legal and moral norms?

Are they connected or separate?
Does the law have a necessarily moral basis?
The OUGHT/IS distinction

1. What OUGHT the law to be?
 Normative legal theory – concerned with values
2. What IS the law?
 Analytic/descriptive – concerned with facts

lOMoARcPSD|2579011
There are some overlaps of normative and descriptive legal theory
Cannibalism: Illegal? Immoral? Both?

 ‘The case of the speluncean explorers’ [1949]
 R v Dudley and Stephens [1884]
Natural Law Theory

 ‘is’ and ‘ought’ questions combined
 legal = moral and moral = legal
Positivism
 The two questions must be kept separate
 Legal might = moral, but it doesn’t have to
Goal Based Theory:

UTILITARIANISM
Bentham and Mill influence positivism
= the greatest good for the greatest amount
 Looks at the end product, goal or consequence of an action
Rights Based Theory:

NORMATIVE THEORY
Locke, Dworkin
= a collection of theories which try to work out the respective value of rights
 Questions: who has rights, where do they come from?
Lord Bingham on ECHR and HRA 1998: ‘the basic and fundamental rights which
everyone has in this country ought to enjoy simply by virtue of their existence as a
human being.’

lOMoARcPSD|2579011
Theories of Natural Law 28/09/2015 11:16:00
Big Debate Timeline:

 Greek origins
 Stoic Roman idea of Natural law
 Christianity
 Secular turn
 Positivism
 Restatement of Natural Law
Originally recognised as morality of behaviour
The two great questions in Natural Law Theory

1. How do we discover the natural law?
2. What effect has natural law had on human behaviour?
Main Points
 Objective moral principles that depend upon the nature of the universe and
are discoverable by reason
 Factual statements may be proved, moral judgements may not
 Natural law struggles with the critical problem of whether moral
propositions can be derived from propositions of fact, namely whether an
‘ought’ can be derived from an ‘is’
 Human laws are not statements of fact – they are not subject to verification
 There is a rational order that exists in nature that is discoverable by human
reason
 Authority comes from nature, not from human beings
 These create a higher form of law as opposed to manmade law which can
be invalidated
Classical Natural Law Theory
Ancient Greeks – Plato, Aristotle

 Search for justice and ‘universal good’
 People have an innate sense of what is right and wrong
 Natural law is that which is in harmony with other laws of nature
Roman Legal Thought – Stoics, Cicero

 Natural law is not man-made so it cannot be repealed
 Morally binding on all, although state law can violate it
Christian Scholars – Acquinas

 Teleological view – divine plan and predetermined purpose

lOMoARcPSD|2579011
 Human law’s role is to serve the natural law
“True law is right reason in agreement with nature … it is a sin to try to alter this law.
God is the author of this law” – Cicero, On the Republic
Does moral validity = legal validity?

Does natural justice = law?
How much injustice leads to invalidity?
How do we judge this?
Examples:
 Legal Nazi regime in Germany
 British occupation of India (Ghandi)
 US civil rights movement (Martin Luther King)
Thomas Aquinas (1225 – 74)

4 types
1. Eternal law – divine reason only known to God
2. Natural law – discoverable by reason by rational creatures: a higher law
3. Divine law – the law in scriptures
4. Humanly posited law – law enacted for the common good
 Unjust laws are a perversion of law and do not bind moral conscience –
these laws are seen as defective
Political Natural Law Theory

 Social contractarian theories (Hobbes and Locke)
 Breach of natural law can result in political revolution
Blackstone (1723 – 80)

 English Christian natural law theorist; any positive law conflicting with
natural law is null and void
The Secular Turn

 Begun with Hugo Grotius
 Natural law would not subsist even if God did not
 Now understood as immanent, universal, rationalist and secular
* Nothing has really changed – it was forgotten about with the rise of positivism
Neo-naturalism Theories in the 20th Century

lOMoARcPSD|2579011
John Finnis’ Neo-Thomism

* Look at lecture slides
Lon Fuller’s ‘internal morality of law’

 Law is the enterprise of subjecting human conduct to the governance of
rules
 Impossible for citizens to obey law with procedural defects and so certain
procedural principles are required to make a legal system
 Legality is, for Fuller, a moral ideal that is built into the very definition of the
legal system
 Move from substance to procedure
 8 principles (Rex story)

lOMoARcPSD|2579011
The Social Contract: Thomas Hobbes 28/09/2015 11:16:00

Hobbes and Locke – hard to categorise in the positivism/natural law debate as both
access different parts of both arguments
Two main strands in political philosophy

 Secularism – the idea that the law of nature can be elaborated without
reference to theological presuppositions
o Break with the idea of a higher power
 Individualism – recognition of natural rights i.e. those rights enjoyed by all
humans by virtue of their nature
o The age of rights
Social contractarians = first appearance of rights

30 years ago = when rights first began to gain ground
Rights were understood as the conscience of law and are now seen as the rhetoric
of law
Emergence of the modern state

 Autonomous powers of reason
 Breaking away from religious/political regimes of the medieval
 Explanation based on the centrality of individual moral will
 Used the platform of natural rights, at the core of which lie the ideas of
freedom and equality
Consent
Man is born free but he is everywhere in chains – Jean-Jacques Rousseau
No man can be subjected to the political power of another without his own consent –
John Locke
 Obedience to authority is legitimated by voluntary submission to those who
exercise authority
 Idea of submission being voluntary that is important
 If men are all free and equal how do we exist in the societies we live in
today?
Why would people voluntarily relinquish their natural rights (power) to the
collectivity?
 To receive some benefit or to secure certain objectives
Social Contractarians: Hobbes, Locke & Rousseau (less important)
HOBBES (1588 – 1679)

See timeline for context – Henry VIII, Guy Fawkes, English Civil War

lOMoARcPSD|2579011
‘Every man is enemy to every man… and the life of man solitary, poor, nasty, brutish
and short.’ – Hobbes lived through a time of upheaval and was disgusted by society.
His main aim was physical security – you could only rely on your own strengths.
 His state of nature is a pre-social society, before the creation of a nation
state
What caused this situation?

 Natural rights: the abundance of them causes problems and arguably no
rights are absolute
 Jus Naturale – the right everyone has to use their own power for their own
purpose
 The result of this is anarchy as there is nothing to restrict the use of this
power
 Bellum omnium contra omnes – the war of all against all
 Abundance of natural rights in the state of nature – therefore there is no
peace, no government, no authority and no law
How do we move to order?
Hobbes’ Covenant – the social contract

 He uses Biblical language even though his thought is secular – reflection
of the times and avoiding accusations of heresy (a smokescreen)
 ‘I authorise and give up my right of governing myself’
 Consent made by every person in society to create unity
 Covenant is with the people – not authority – giving up rights on the
condition that everyone else does the same – every man with every man
The Leviathan
 Sea monster – a biblical creature – found in many contexts
 Mortal God, sovereign, artificial man, Civitas
 Represents diabolical power
 We have created it for our common peace
 Protective giant figure – metaphorical
o Criticism – this person has all the power when the people have
none
o Any political order is better than anarchy
Is Hobbes’ thought secular?

 Mortal God is not dependant upon God’s support for its authority
 God is inaccessible – human beings have little choice but to construct a
system of government and law for themselves and without God
 Hobbes equates faith with opinion i.e. subjective belief

lOMoARcPSD|2579011
Father of positivism?
 Justice and law are co-extentive (the same)
 Essentially makes him a positivist

lOMoARcPSD|2579011
The Social Contract: John Locke 28/09/2015 11:16:00

* related to essay question
Social contract = intertwining of individualism and secularism
Locke = father of liberalism

Weaves ideas of natural law through the social contract
Contractarianism
 A political theory of the legitimacy of political authority
 A moral theory about the origin or legitimate content of moral norms
 Do not ground morality or political authority in divine will
 Unit of the individual
 Justification for certain forms of government
 Hobbes, Locke, Rousseau, Rawls
Differences
 Hobbes uses the social contract to explain the validity of the political and
thus legal order
 Used to reconcile the liberty of the individual citizen with the power of the
State
 Justification and legitimation
 Relationship between citizen and government
Locke (1632-1704)
 Age of enlightenment
 Context: great fire of London, great plague, glorious revolution
 Argues against absolute monarchy
 Father of liberalism
 Second Treatise of Government – most famous book
Locke’s concept of the State of Nature is peaceful, idyllic, and benign. This is a stark
contrast to Hobbes’ anarchic and violent concept of the State of Nature.
The state of nature has a law of nature to govern it, which obliges everyone; and
reason, which is that law, teaches all mankind – equal and independent with no
harm. ‘Life, liberty and possessions.’
‘In Common’
 Main concern in the state of nature is hunger, and thus the means of
subsistence become important
 We have a natural right to our preservation and life and also a right to
other things that help this subsistence

lOMoARcPSD|2579011
Acquisition Theory
 How do we move from possessions in common to private property?
 Removes out of the state that nature provides, mixing your labour with it,
has joined something of their own then it becomes your property
 This theory has been used to justify colonialism and land acquisition in the
UK today
 The assertion of a claim should not be sufficient
Private Property
 Locke’s aim is to demonstrate that it is morally justifiable for individuals to
take resources from their natural state (in common) and to keep them for
themselves to the exclusion of all others.
 Original acquisition of property rights
Context
 Highly charged political debate in 17th C England about the legitimacy of
property rights as against an absolute monarchy
 Private property rights were held only by the grace of the monarch, who
could withdraw them at will
 Mixing your labour with natural resources adds value/improves them
 Perpetual ownership? How to continue improving something
Natural Right to Punish

 The law of nature is what keeps the peace and so a breach of this natural
law can be punished (duty)
 This is because people have acted without reason
Transition to Civil Society

People are at liberty to:
 Engage in innocent delights – non-violations
 Seek their own preservation
 Punish violations of natural law
This is not without problems:
 Subjectivity/bias – people would judge their own cases
 Proportionality – how much punishment is sufficient?
 Effectiveness/power – often difficult to carry out own punishment
Since we have entered into civil society and the commonwealth, we have quitted the
power to punish and have given the right to the commonwealth to employ his force
for the execution of judgement. This leads to the origin of the legislative and
executive power of civil society.

lOMoARcPSD|2579011
Limited Government
 Individuals consent to be governed – fiduciary relationship
 We only relinquish the bare minimum as required for the state to exert it
 Delegation of some natural rights compared to Hobbes’ alienation
 People retain the right to resist tyranny and the right to rebel or revolt
 American Revolution – Declaration of Independence 1776 – used Lockean
thought to justify their motives
o ‘derive their just powers from the consent of the governed’
o This statement came from male white landowners – must be
applied in context
Summary – copy from photo

Comparison – copy from lecture slides

lOMoARcPSD|2579011
Classical Positivism 28/09/2015 11:16:00

Recap on the social contract
 Moral emphasis placed upon the role of the individual
 Justification for modern state
 Evidence of both natural law (Locke) and positivist thinking (Hobbes)
Justice and law

For Locke, the ‘higher’ law of nature and the manmade law can differ, although they
should not. For Hobbes, justice and law are co-extensive
What is the right thing to do?

Locke – follow natural law: normative issue
Hobbes – follow the law: founder of positivism
Positivists – separation of law and morals, any moral value that the law might have is
merely contingent, descriptive, based on verifiable social facts
Why is it called Legal Positivism?

The law as it is posited – the law as it is laid out and stated – Bentham
What laws are in force in that system depends on what social standards its officials
recognise as authoritative… law is a social construction – Green
Four main proponents

18th century – Bentham Austin
19th/ 20th century – Kelsen, Hart
Bentham and Austin built on the ideas of Hobbes.

They rejected the fiction of the State of Nature and the social contract as a way out
of it BUT did argue that law depends on a sovereign person or assembly who is
habitually obeyed.
 Natural rights doctrine takes us away from the real idea of the law and
what it actually is
 If people identify with a different form of law then they might raise evidence
of a conflicting rule – this will lead to conflict and chaos
 ‘To say that human laws which conflict with the divine law are not binding,
that is to say, are not laws, is to talk stark nonsense.’ – Austin Lecture V
pp 184 [1834]
18th century problems of the Common Law

 Custom and practice embodying natural reason were legitimated by
history and tradition and confirmed with reference to rationality
 Superstitious respect for antiquity
 Unwritten law is inherently vague and indeterminate

lOMoARcPSD|2579011
 Dangerous fallacies – appeals to the Law of Nature were simply ‘private

opinion in disguise’
 ‘Mere opinions of men self-constituted into legislatures’
Avoiding indeterminacy
 18th C common law failed to provide a clear and reliable public standard
that could guide behaviour
 Indeterminacy affects legitimacy
 Codification (law reform) and the construction of a complete body of law
 His aim was to decrease what he considered to be the excessive arbitrary
power of judges
The Sovereign
This person/organisation is supposed to be in a disposition to pay obedience
In a state of subjection to its author
Command Theory
‘the command of a sovereign backed up by a sanction’
Tripartite conception of law
 Command (imperative)
 Sovereign (power)
 Sanction (motivation)
Benthamite Utilitarianism
The principle of utility that affords the only clue to guide a man through these straits.

lOMoARcPSD|2579011
Hartian Positivism 28/09/2015 11:16:00

Law and…
 Morality
 Authority
 Validity
 Adjudication
 Rights
Positivism recap
 Separation of law and morals
 Descriptive – describes how law ‘is’
 Based on verifiable social facts
Main question: what is the law? How do we distinguish legal standards from other
standards and rules that govern our conduct?
Main aim of Hart – to describe the law OBJECTIVELY
Classical Legal Positivism

Bentham and Austin built on Hobbes’ ideas, that law depends on a sovereign
person. Taking the form of command theory – the command of a sovereign is
backed up by a sanction.
Command theory = coercive i.e. obliged – involves the actual or predictable
application of compulsion BUT this is a different idea of being under an
OBLIGATION to do something.
 Involves a concept of duty whether or not a sanction can be expected
Gunman Example
 Classical positivists – gunman achieves aims through threat of force
 You comply with demands not because you feel like you ought to, but
because you are forced to
 But what about obligation?
 The gunman has the power to make me hand over my money, but no
authority to harm me
 Revolves around POWER
 You should follow the law
 Being coerced to do something is different that being obliged to do
something
Hart’s rule based theory

 The law appears to consist of rules

lOMoARcPSD|2579011
 Rules form a normative regulatory structure which exists as a system, not

a pattern of discrete demands
Legal rules are divisible into 2 sets:
1. Primary rules – which govern conduct (duty imposing)
2. Secondary rules – which allow for the creation and alteration of primary rules
(power conferring)
Secondary rules are rules about other rules

3 secondary rules
1. Rules of change – empower officials to create new primary rules
2. Rules of adjudication – empower officials to make authoritative determinations of
the question whether a primary rule has been broken
3. Rule of recognition – the criteria by which officials determine which rules are, and
which are not, part of the legal system
 LOOK AT LECTURE SLIDES FOR DIAGRAM *
Rule of recognition
 Provides the ultimate criterion of legal validity
 Sits outwith the concept of validity
 Common, public standard of correct judicial decision – binding only if
accepted by the officials in question
 Who are these officials? – the judges
 LOOK AT LECTURE SLIDES – we have to use some form of measure
Judiciary
Internal – normative component
External – a regular pattern of conduct
 These combine to product official behaviour that can be established by
empirical observation
Context – Hart was a Professor at Oxford therefore less critical of judiciary
 Publicly ascertainable rules
Hart v Fuller – Fuller argued that law’s binding power came from morality
Hart v Dworkin – covered in next week

lOMoARcPSD|2579011
Dworkinian Anti-Positivism 28/09/2015 11:16:00

Hartian positivism – a recap
 Criticised the classical positivist idea that the law is command and merely
duty imposing
 Legal rules are divisible into primary rules and secondary rules
 Secondary rules – rules of change, adjudication and recognition
 Rule of recognition – this master rule creates criteria that identify what the
primary rules of a legal system are – recognises legal rules
 Law is necessarily indeterminate: example: ‘there are no vehicles in the
park’
Law’s open texture - Hart

 In applying legal rules, someone must take the responsibility of deciding
that words do or do not cover some case in hand with all the practical
consequences involved in this decision
 Indeterminacy of language – penumbra of uncertainty
 Rules cannot cover every eventuality
 General legal standards e.g. reasonableness, fairness
 Judges draw out of the rule that which is latent within it
Judicial discretion
What about hard cases? Where the law does not provide a clear answer
 Judges must work out the decision by reference to substantive, extra-legal
considerations which can be moral, political or according to the judge’s
own sense of justice
 The decision of the judge is law because of the rule of recognition
Ronald Dworkin
Succeeded Hart as Professor of Jurisprudence at Oxford in 1969
Advances a theory of judicial interpretation
Rejects the idea that the law can be justified by power alone
Sits between natural law and positivism
Interpretative Theory
‘Legal claims are interpretative judgement and therefore combine backward and
forward looking elements; they interpret contemporary legal practice as an unfolding
narrative.’
 Often called constructive interpretation, as the judge should construct a
theory of what the law is
 Ongoing, unfolding narrative that has considered the past to help the
future

lOMoARcPSD|2579011
Policies and Principles

 Comprises rules and non-rule standards
 Rules – all or nothing character
 Policies – describe goals (political)
 Principles – describe rights (moral)
 Rights should be understood as prevailing (rights as trumps) when
competing against considerations of general welfare/common good –
rights will always win
Judicial discretion
 The judicial role is to give effect to the intention in parliament and to
interpret, apply and uphold the law as established by statute
 A space of autonomy surrounded by a belt of restriction – doughnut
 Judicial discretion means interpretation
 Distinguishes between strong discretion (unfettered – Hart)
Riggs v Palmer [1899] US or Re Sigworth [1953] UK

 Grandson murders grandfather so he can inherit his money
 Applied the principle – ‘one should not benefit from their own wrongdoing’
 Where the law is unclear, principles apply

lOMoARcPSD|2579011
Hart’s Debates: Fuller & Dworkin 28/09/2015 11:16:00

Hart v Fuller: Hart = positivist view, separation of law and morality, Fuller = law’s
binding force came from morality
Hart v Dworkin = Dworkin argued against Hart’s conception that law was a system
of and for rules; his view was that there were also non-rule standards, i.e. policies
and principles
Hart v Fuller [1958]

HLA Hart’s 1957 Holmes lecture at Harvard
 Revised and updated legal positivism
 Described separation of law and morals
 Defended positivism against the charge of silent complicity with oppressive
legal regimes
 Discussed linguistic indeterminacy and legal interpretation
 Taking classical positivism (Bentham and Austin) and bringing it up to date
In his reply, Fuller:
 Insisted that law was not a neutral concept
 Argued that law already embodied an inner morality of its own
 Argued that regimes that persistently violated this inner morality were not
entitled to be called legal systems
This lecture was then published in the Harvard Law Review: 1958
Context: post war America, Nuremberg trials
In 1949 the German CA held that the Nazi statute was ‘contrary to the sound
conscience and sense of justice of all decent human beings’
The grudge informer case – reporting people who opposed to the Nazi regime
 A wife informed on her husband even though he was innocent, she used
the law to get him killed
 Two options: either don’t punish or punish according to retrospective law
 Hart: if we formulate our objection as an assertion that these evil things
are not law, this would seem to raise a whole host of philosophical issues
before it can be accepted
 This is justice in the administration of the law, not justice of the law
 Fuller: this thing is the product of a system so oblivious to the morality of
law that it is not entitled to be called a law – legal morality cannot live
when it is severed from a striving toward justice and decency
Hart v Dworkin [1967]

 Is it about whether the law contains principles as well as rules?
 Judge discretion?
 Interpretation of legal texts?

lOMoARcPSD|2579011
 Best way of thinking about this debate: concerns the clash of two very
different models of law – should law be understood to consist in those
standards socially designated as authoritative? Or is it constituted by those
standards morally designated as authoritative?
o Are the ultimate determinants of law social facts alone or moral
facts as well?
A recap of Dworkin
 Rights are trumps
 Constructive interpretation of judges
 ‘hole in the doughnut’
 Law as integrity
Dworkin’s criticisms of Hart

1. The Pedigree Thesis – in any community that has a legal system, there exists a
master rule for distinguishing law from non-law and may only refer to social facts
– captures Hart’s rule of recognition
2. The Discretion Thesis – law consists solely in legal rules and thus does not
include principles and policies. This is a strong and unbounded judicial discretion
and refers to Hart’s idea of law’s open texture
3. The Obligation Thesis – legal obligations can only be generated by legal rules.
Where legal rules are applicable, legal obligations do not exist. Hart misses out
the idea of non-rule standards
Critique – see PowerPoint slides – Dworkin wrongly defines Hart’s ideas then
elaborates on them
Both Hart and Dworkin project their ideas onto each other. They should be thought of
as being two particular perspectives on the law

lOMoARcPSD|2579011
From Natural Rights to Human Rights 28/09/2015 11:16:00

What are rights?
 A political claim?
 A legal entitlement?
 A moral standard?
 All of the above?
The concept of rights has changed over years. Rights have been ‘institutionalised’ –
they have gone from being political claims to being legal entitlements and
subsequently to being universal standards.
Natural Rights
Origin of natural rights could refer to:
1. The right we have by virtue of our nature as human beings
2. The rights we have in the ‘state of nature’
3. The rights conferred upon us by the law of nature
Rights in social contract theory

Fundamental
Hobbes: rights claims are destructive of political order
 State of nature – men have the rights to do anything they like, but given
that everyone enjoyed these rights indiscriminately, the exercise of these
rights was potentially and practically destructive
 Best thing to do = give them up as soon as possible for the sake of
survival
 View of rights based on substantive rights rather than abstract civil liberties
i.e. the right to survive by whatever means
Locke: citizens possess natural rights which they cannot renounce or alienate, and
which cannot be expunged by anyone
 State of nature = free and equal, possession of natural rights in property
 Purpose of the government = protection of national freedoms
 Locke’s expression of natural rights is one of ‘life, liberty and estate’
Magna Carta [1215]

 In the 13th century, liberties were treated as concessions to be extracted
from the sovereign
 Magna Carta was the first document imposed upon a King of England by a
group of his subjects, the feudal barons, in an attempt to limit his powers
by law and protect their rights
Are rights a revolutionary idea?

 Revolutions in the 18th century – America and France

lOMoARcPSD|2579011
 Rights are now considered to be antecedent to constitutional order

 Revolutions introduced the secular notion of human rights
The state and the individual

The relationship has changed:
Previously – we spoke of a sovereign and subject i.e. duty and trust (fiduciary)
Now – we speak of the State and the citizen in terms of rights and contract
 Vindication of rights through judicial, not political action.
 Legislation of politics?
Growth of rights
Civil: basic requirement of individual freedom e.g. freedom of expression
Political: equal participation in the exercise of political power e.g. suffrage
Social: protection of social rights e.g. minimum level of subsistence, housing,
education
Proliferation of rights
3 elements recognised by T.H. Marshall [1992] in terms of citizenship
 Liberties converted into rights
 Concessions into entitlements/freedom
 Governmental powers into duties
Politicisation of Rights
Loughlin says that the rights movement can be understood as an evolutionary
process of:
 Generalisation: more claims expressed as rights
 Institutionalisation: claims recognised in positive law
 Collectivism: extension from individuals to social groups
 Internalisation: recognition and enforcement from outwith the State
Institutionalisation
Post war legal recognition of rights
 UNDR 1948
 ECHR 1950
 International Bill of Rights 1976
Rights under the law

‘Law as right aims at no less of the idea of the elimination of the idea of the political
sovereign and its replacement with the sovereignty of law. It requires a
transformation in understanding of the legal code from one based on duties to one
founded on rights.’ – Loughlin [2000]

lOMoARcPSD|2579011
Rights idealism
The main difficulty with natural rights doctrine is that it is inherently idealistic
Objective foundations for a rhetorical claim:
Religious – intentions of a divine creator
Secular - ???
 Since fundamental rights are invoked for the purpose of achieving certain
values, they serve mainly as an appeal to those values – Loughlin
 Are claims to natural, inalienable or fundamental rights then either
tautological or fictional?
The difficulty with idealism

 It is impossible to prove or demonstrate the truth of a rights claim and to
establish an objective foundation
 Instead, the strength of the claim is dependant upon general acceptance
 Fundamental rights have force through political consensus, namely how
people think and behave

lOMoARcPSD|2579011
Essay Question 28/09/2015 11:16:00

Authority/Sources
 4 reading booklets
 Further reading – look at this
 Lecture handouts
 Seminar handouts
 The essay is answerable using only these materials
 Additional sources are not necessary
Context – noticing and evaluating the influences on these thinkers will give you a
greater insight into what motivated them and thus what they eventually argued. Will
allow you to analyse their points of view.
OSCOLA Referencing
There is no right answer to the essay question. You can argue whatever you like
dependent on the relevant syllabus materials and any additional sources you select.
Make the essay stand out! Engage with the material – make it stand out from the
other 300.
Address the specifics of the question.
Structure – clarity and analysis – do not waffle and be arty with words. Be concise!
Look at the marking criteria!!
Timeframe
 Prepare a timetable and place in other work, dissertation prep etc.
 Check you have all of the booklets and resources
 Discuss the topic with others
Relevant reading on VLE – up to law and morality section

lOMoARcPSD|2579011
Utilitarianism and Consequentialism 27/01/2016 10:09:00

Utilitarianism
 More than just a theory
 A reference point for most important theories
 Rawls’s A Theory of Justice
 Cost-benefit analysis a modern version
 Still the dominant political theory?
Bentham
 The greatest happiness for the greatest number
 Morality judged by happiness maximisation
 Everyone counts: equality is attractive
 Gives power to the majority
 Stops the powerful minority from holding power
 Not good for protecting a small minority against a powerful minority
 Everyone’s needs cannot be met
Consequentialism
 Normative properties depend on consequences
 Check in advance the effects of the act
 Consequences can be good or bed, then we choose
 Morally right answer depends on maximisation
 No ‘proper’ behaviour
 Presents the answer ‘what is the harm in doing this?’
 You can do whatever you want as long as your actions are not harmful to
others
These concepts are progressive in their context and attractive.
Problems
1. How do we define utility?

 Bentham: the chief human good is happiness
 Unpleasant experiences; where do they fall?
o We do them because there is going to be some benefit, whether
pleasurable or not. We believe it has some value
 Is pleasure the most important thing?
o Some people are attracted to pain, extreme sports, hard work etc.
Experience machine (Nozick, 1974)

 Imagine that neuropsychologists could inject drugs into us that create the
most pleasurable conscious state imaginable

lOMoARcPSD|2579011
 If pleasure were our greatest good, then we would all volunteer to be

connected
 Is this the best life we can lead?
 We want to actually do things, instead of just experience them
 Through doing those things ourselves, we gain valuable experiences
Non-hedonistic mental state utility

 Only valuable mental experiences count, even if they are not pleasurable
 Real acting is what counts
 Pleasure cannot be the only factor
 The main premise of utilitarianism in Bentham’s thought is challenged: it is
more than pleasure and happiness that counts
Preference satisfaction
 Increasing utility = satisfying preferences
 Everyone’s preferences count equally
 Count equality vs. equal weight
 All preferences or informed preferences? Some would lead us to misery or
death
o Speed cameras – some people prefer no speed limits but this would
increase road accidents/deaths – this is not an informed preference
 People’s preferences change not only over time but as a matter of
psychology – protective mechanism – when we fail at something we do not
want it anymore
 Aesop’s sour grapes – the fox couldn’t reach the grapes therefore she
changed her attitude towards them
Satisfying informed preferences

 Which preferences are informed
 Many kinds of preference – how do we aggregate?
 Unconscious preferences – do they count in the utilitarian sense?
The main problem with utility: utility maximisation
How to maximise?
 Society as a giant calculus
 Individuals as calculators of pleasure – we spend our time calculating the
effects on overall utility of the various actions available to us
 Special relationships: friends and family
 What if utility (largest preference) runs counter to our family/friends?
Should we pay the plumber?

lOMoARcPSD|2579011
After calling out a plumber who charges £200 for one hour’s work. Should you pay
him?
 Utilitarian terms: you should pay him as it conserves a basic principle of
how we do business
 It leads a more efficient system – if people know they will be paid for their
work then we are happier
What if you decide to donate that £200 to a charity?
 Would benefit more people than just one person
 However this is not a social norm
We pay the plumber because we feel like we have to pay the plumber – an
independent moral judgement because we made an implicit promise
Utilitarianism and Rights – the problem of illegitimate references

Human rights are rights against the majority – we believe that the majority should not
make every decision
Bentham
 Rights are ‘nonsense upon stilts’
 No natural or moral rights
 Legal rights can exist
 Only lack of happiness/pleasure could justify protection of human rights
 What about codification of rights? E.g. French Declaration – rights existed
before this document and fuelled the revolution that ended in the creation
of this document
John Stuart Mill

 Grounding moral rights to utility
 Justice and rights: a special connection?
 He tried to ground certain moral rights in utility
 Moral rights are not absolute
 Rights may be overruled by justice
Rule Utilitarianism
 Welfare maximisation
 Principle applies to rules, not individuals
 Applies only to how the state behaves towards us
 Cost-benefit analysis – what are the consequences? Are they going to be
beneficial? Vs. the cost of this project
o This becomes problematic when it is applied to rights and who
should enjoy them
 Political rather than comprehensive conception of utilitarianism

lOMoARcPSD|2579011
Summary
Utility and human rights
 What if the majority are happier when some rights are violated/do not
exist?
Welfare calculations
 Preferences – how do we measure these?
Majoritarian utilitarianism
 Protects the majority, but given illegitimate preferences, does not protect
minorities
Seminar Discussion
Illegitimate preferences and majority
Dworkin, ‘Rights as Trumps’

 Utilitarianism is attractive because of the equality principle – everyone’s
preferences count
 There is a contradiction: we have two kinds of preferences: personal and
external – do they both count?
Personal preferences
 What we think we should do
External preferences
 How others should behave, and how much other peoples’ references
should count
Utilitarianism does not distinguish between the two types of preferences

Think of someone racist or even Nazi: should we count their preferences equally to
everyone else’s?
 By taking into account these preferences, it makes it extremely dangerous
for the minority
 Maximising happiness? Nazis would argue that it would maximise their
happiness, and this would count under utilitarianism
 For utilitarianism, it shows there is an inconsistency if we count Nazi
preferences – counting preferences that prefer that other preferences
should not count is a contradiction
 We have no way of excluding illegitimate preferences
If we want a political theory where everyone’s preferences should count on deciding

collectively on how we should behave, then utilitarianism is not enough. We need
more principles to make sure that illegitimate preferences do not count, or at least
make sure that they do not lead to other preferences being excluded.
The principle we need? Human rights

lOMoARcPSD|2579011
Rights as trumps – fundamental rights to political and moral independence

Quote at 158
No one should suffer disadvantages based on who he is or it not.
 Trumps over unrestricted utilitarianism
 Rights trump neutrality for social justice
 T Nagel: we need to insert deontology to utilitarianism – it is not all about
the consequences, there are some things that we should not be able to do
others and some things that the state should never be able to do us

lOMoARcPSD|2579011
Utilitarianism and Consequentialism 27/01/2016 10:09:00

Reading
1. M. Sandel, Justice: What’s the Right Thing to Do? Chapters 2 and 5
2. Kymlicka, Contemporary Political Philosophy, Chapter 2
3. R. Dworkin, Rights as Trumps, Theories of Rights
Questions
1. What is the main principle of classic utilitarianism? Do you find it attractive?
The main principle of utilitarianism is the greatest happiness for the greatest number
of people. Utilitarianism gives every member of society an equal say in their
preferences, giving it an egalitarian quality; everyone’s preferences are the same
and there is no discrimination. Therefore, what the majority of the population desire,
this should be acted upon. This theory is attractive in principle, but not in practice.
Even though this secures the majority opinion, this opinion may not always be the
most morally accurate one. For example, in Nazi Germany, (in theory) the majority of
the population wanted the displacement or extermination of the Jews, yet this did not
make it acceptable.
2. Outline the main differences between consequential and deontological theories of

justice. Which one do you find more convincing as a moral decision making
procedure of a state? Would your answer change if you belonged to a small and
unpopular minority group?
Consequentialism – it is the consequences of an action that matters. Actions are

valid to carry out if they do not cause any harm. The consequences of one’s conduct
are the ultimate basis for any moral judgement about rightness or wrongness. The
more positive consequences an act produces, the more beneficial it is.
Deontology – sometimes called rule based or duty based ethics, this focuses on the
rightness or wrongness of actions themselves, opposed to the consequences. It
means that some actions are simply immoral, regardless of their consequences.
I think that for a state, consequentialism is the most effective theory of moral
decision making. It would allow the most positive results to be achieved. However,
these consequences may come about from immoral actions. If someone belonged to
a small and unpopular minority group, deontological decision making would most
benefit them. Even though the state may save huge amounts of money cutting
funding to asylum seekers, deontological decision making would prohibit this, since
the action would be immoral.
3. Is pleasure the most important thing in life?

lOMoARcPSD|2579011
For hedonists, yes. However, for many people, pleasure is one of many of the most
important things in life. If we could be hooked up to a machine that produced the
sensation of pleasure permanently, even though we were aware this pleasure was
fake, most people would not choose this. The reason why is because it is not just the
feeling of pleasure that is important. It is the act of earning the pleasure, and
experiencing it for ourselves. It is not the experience of being in love that matters, it
is simply being in love.
4. Are there any problems with the main principles of utilitarianism?
Utilitarianism is attractive for giving power to the majority and taking it away from the
powerful minority, as Bentham originally posed during his law reforms. On the other
hand, utilitarianism assumes that happiness is the ultimate goal. This is not always
the case, as many people choose options in life that require hard work and sacrifices
and may not be initially pleasant, since they find a reward in this.
5. Can we measure happiness or the value of life? If we can, is it morally right?
Cost-benefit analysis: in the past, there have been cases where the value of having
to replace a car was more expensive than the people dying claiming insurance. This
was a clear example on where people believed that life could be valued at a
monetary measurement. This is not always the case. Half a million pounds for the
death of a loved one may seem a lot, but this would be traded instantly if the
individual was alive. It is not morally right to value something so precious as life in
simple monetary terms. This defeats the whole notion of morality.

lOMoARcPSD|2579011
Theories of Moral Rights 27/01/2016 10:09:00

Contemporary Understanding of Human Rights
The UNDR
 Preamble introduces equal inherent dignity of all humans
 Birthplace of modern human rights movement
 Orthodox conception of human rights – locates rights in humanity
Basic human equality

4 characteristics
1. Equality of moral status
 Not political or economic status
 Located in the work of Locke and Kant
2. Applies to all humans
 Equal moral status
 Inequalities in characteristics such as beauty/intelligence are independent
3. Moral equality is the basis for certain moral entitlements
 Must be treated equally by the state
 Entitlements = human rights
4. Objectively valid principle
 This is not a culturally relative or personally relatively principle (orthodox)
 It doesn’t matter if other cultures have developed other notions of moral
equality
* this view has influenced many human rights movements around the world
“Basic human equality is an ethical idea intermediate between the abstract notion of
inherent moral considerability and specific egalitarian principles of social relations,
political participation or economic distribution.”
“The value of man is his price.” – Hobbes, Leviathan (1651)

 Life cannot be measured in these terms according to the orthodox view
We believe every life has objective value, and this is why we have to be treated with
equal concern by the state.
Aristotle, Nicomachean Ethics

 Ancient moral philosophy
 Tried to locate the value of people, a widespread intuition from ancient
times
 Human worth is unequally distributed (contrary to orthodox human rights)
 It is based on rational capabilities

lOMoARcPSD|2579011
 Led Aristotle to claim that certain people who had less rational capabilities
(women, slaves, non-citizens, non-Greeks) had less value because they
were not Athenian
 Empirically false
 Presents a ‘threshold’ or ‘scope’ problem – is there a threshold that has to
be reached for people to enjoy rights? Where do we put this threshold if
one exists?
Scope
If we create a scope based on rational capacity – does everyone have rights?
 Everyone with psychological capabilities?
 The irreversibly comatose?
 Foetuses or new born infants?
 Those who never possessed psychological capabilities?
Equality and Religion

 Basic equality: a secular principle
 Long religious pedigree of the idea
 Aquinas – since God loves everyone equally, everyone’s life has equal
value
 Can basic moral equality be severed from religion?
 How can we convince secular states/individuals that we are worth being
treated in an equal way?
 ‘Now that God has died, we do not wish to be equal.’ – Nietzsche
Locke, Two Treatises (1689)

 Theistic (religious) foundation of equal status
 Creatures with capacity to establish the existence of God, therefore we
carry some inherent value
 Ability to relate to the idea of God’s law through revelation
 Scope problem again – what about people who lack rational capacities
who cannot understand God’s law? Do they not carry value?
 Wolterstorff (theologian) – ‘God’s love is equal’
The History of Natural Rights

 Evolved to feed into the human rights doctrine that we have today
 Possessed by virtue of humanity
 Discoverable through ordinary reason, not ‘revelation’
 Influential way to give substance to basic equality of humans
 Aided the idea of basic moral equality that was quite abstract
MacIntyre & Finnis: Western Culture

lOMoARcPSD|2579011
 MacIntyre – rights created after 14th century

 Finnis - between 13th – 17th century
 Rights not traceable in ancient or medieval languages such as Hebrew,
Greek, Latin, Arabic or Old English
 However – people might still share the concept despite no relevant words
 Language does not define a concept
The Decretists
 Humanism of the 12th century
 Revival of legal science in the West
 Recovery of the entire corpus of Roman law, codification of canon law
 Efforts to combine Roman and canon law
 Realised that both sources had an emphasis on the individual
 Emergence of rights such as ‘the right of the poor to the necessities of life’
 Paradoxical as one of the first natural rights is so widely disregarded today
What does history teach us?

1. Rights are grounded in practical concerns instead of metaphysics
2. Common characteristics are sufficient – they are not based on rationality, but a
plurality of common characteristics
3. Inextricably bound up with justice
 Marxism – rights are individualistic and an ‘egoist’s charter’
4. Rights have to be practical and not completely aspirational
From Natural to Human Rights
The Evolution
 Medieval thinkers
 Spanish neoscholastics
 European conquest of America and the question of universality
 Enlightenment
 Hobbes, Locke and Kant
Moral rights pre-existed all of this, however these periods of history developed them.
It is only in modern times that human rights have been codified and began to be
recognised by everyone.
The (r)evolution
 Idea of universal rights inspired American and French revolutions
 Period of stagnation followed
 Discounted as non-universalistic, nonsense

lOMoARcPSD|2579011
 Growth of theories such as Utilitarianism, Positivism, Marxism, Cultural

Relativism
 Separation of law and morality
After WW2
 Revival of the doctrine
 Human rights label created
 UNDR – response to all atrocities
 National constitutions – IHRL
 Numerous international, regional and domestic human rights institutions
Human Rights Today

 An ethical lingua franca – not just a theory, but a language
 Powerful human rights rhetoric gives incentive to frame all claims as rights
– the problem of proliferation
 To what extent is the contemporary human rights culture really a
continuation of the natural rights tradition?
 Judicial problem – hundreds of thousands of cases before the courts – the
theory becoming more legalistic
Status Based and Interest Based Theories of Rights
Rights create duties on others –

 Right to be free from torture – people must not torture me, the state must
protect and punish anyone who does torture me
 The more rights we have, the more duties are generated
Interest based theories

 Immunities theory
 Important individual interest that generates duties on others
 Limitations on rights – make sense on reasons pertaining to the common
good
Status based theories

 Human status requires certain inviolabilities
 Agent-relative v. agent-neutral
 Rights should never be limited for certain reasons
Human Rights
 Protection of personal sovereignty from the moralistic preferences of the
majority
 If inviolability is valuable in itself, do consequences matter?

lOMoARcPSD|2579011
Further notes
Status based rights

 Natural rights give way to status theory of rights
 Human reason can grasp the fact that it is appropriate to treat beings with
such attributes in certain ways
 Value of each person is important
 Nozick – each person’s rights impose side constraints on others’ pursuits
of their goals
 Each person possesses an inviolability that all others must respect
 Criticism: there are evils great enough that could justify torture/murder
 Flat assertion?
 What rights express an attack on an individual’s inviolability?
Instrumental rights
 Describe rights as instruments for achieving an optimal distribution of
advantages
 Rights must generate good consequences – how do we define this? Weak
v strong rights?
 How can we measure empirically how rights would produce such
consequences?

lOMoARcPSD|2579011
Theories of Moral Rights 27/01/2016 10:09:00

Reading
1. UNDR (1948)
2. T. Nagel, Personal Rights and Public Space, 83 – 107
3. J. Raz , The Morality of Freedom
Questions
1.What is a moral right and how is it related to the idea of a duty or obligation?
Rights create duties on others –

Right to be free from torture – people must not torture me, the state must protect and
punish anyone who does torture me
The more rights we have, the more duties are generated.
2. For a fundamental moral right to exist, must its corresponding duties be

allocated independently of any convention or institutional fiat?
If rights were not institutionalised and structures did not exist to enforce them,
promote them and provide sanctions, then rights would not be complied with on a
practical level. On a moral level, moral rights exist independently of their legal
recognition and pre-existed any codification. Corresponding duties that moral rights
generate are being generated autonomously and do not depend on their recognition.
If a dictator decides to torture his political enemies, he is still violating a human right,
even if the national legislation does not give effect to human rights.
3. Are fundamental moral rights best understood as grounded in the status of

their holders or their interests?
Interest based theory of rights – protects only fundamental interests such as right to
life, freedom of expression, freedom from torture etc. We know they are fundamental
because there is a general consensus and an element of objectivity. When other’s
rights are deemed more important than ours, we may give way to our right. We
assign weight to our rights by objectivity, balancing out rights against each other.
Some rights are connected to human dignity which is the most important right to be
protected. Individual autonomy is the master value.
Criticism: how do we empirically measure good consequences?
Status based theory of rights – protects human status. There are some rights that
are so fundamental they cannot be violated: each person has a right to ‘inviolability’.
Stemming from natural law, each person has access through reasoning to the
fundamental rights, and an inherent sense of morality.

lOMoARcPSD|2579011
Criticism: what about if an individual’s rights are violated for the greater good? E.g.
the murder of a dictator to save citizens?
4.Can an interest-based account of rights make sense of the “agent-relativity” of

rights or their resistance to being traded-off?
Agent-relative – when a reason is given that does include an essential reference to

the person
Agent-neutral – when a reason is given that does not include an essential reference
to the person
Interest based accounts of rights take into account the interaction of rights between
individuals, for example freedom of expression vs. freedom from libel/slander. The
way this theory deals with the rights being traded off is the one which offers the best
utility will be the winner.
5.What is the relationship between moral rights and the common good?
Moral rights – for each moral right there is a corresponding duty

Common good – for the benefits and interests of all
If moral rights allow for corresponding duties, it creates a sense of interdependence.
This can be linked to the common good – where all actions must be considered for
their impact upon others, sometimes compromising our own rights for the benefit of
society.
Interest based rights – rights protecting interests

We need an element of objectivity
Human rights discourse believes that certain interests are fundamental
Raz – how do these interests function? They generate duties on others, to not
impose and restrict them.
Contrast with Nagel – status based theory of rights

Difference between status based and interest based: interest protects rights as
means but status based rights are deontological – they exist themselves.
Status based – valuable by themselves, also seen as ‘reason blocking’ theories of

rights
Interest based – would analyse the limitation to see if it violates the right through the
form of balancing. Example: full face veil ban - balance between freedom of
expression and collective interest to safety in the public space.

lOMoARcPSD|2579011
Reason-blocking theory of rights – would analyse a limitation but would not balance
it against interests, but would look behind the limitation to try and find certain
impermissible state actions.
Both accept that human rights can be limited for certain reasons, however status
based can never be limited because of the moralistic preferences of society.
* Two completely different tests *

lOMoARcPSD|2579011
The Nature and Ground of Human Rights 27/01/2016 10:09:00

Orthodox Theories of Rights
Share 2 characteristics
 Moral rights possessed by all human beings in virtue of their humanity
(natural rights)
 Discovered by natural or ordinary moral reasoning, as opposed to
revelation from God
These characteristics are questioned by the political concept of human rights and the
breaking of the link with the natural rights tradition.
1ST CRITICISM
Criticism of claim that moral rights are possessed by all human beings:
 Lack of fit with contemporary human rights practice
 Trans-historically applicable human rights?
 Same rights attributable to all throughout history?
 Seems to be ahistorical and insinuates that people regardless of historical
period and society were enjoying a broad set of rights
 People did not share the concept of rights until recently
 Examples: right to a fair trial – did not exist until a century ago (specific
court procedures, juries etc.)
 Right to adequate standard of living – did not exist until 50 years ago
 Right for women to vote – did not exist until a century ago
Beitz – orthodox view is under-inclusive
How do we respond to this problem?

1. Small number of rights
 Abstract and trans-historical e.g. right to life, right to liberty. These rights
are fundamental and have existed throughout history. We can detect and
track different instantiations of these rights.
 They construe many of the specific rights found in the UDHR
2. No trans-historical universality
 Rights are temporarily constrained and we enjoy different rights in different
periods of time
 The fact that people enjoyed completely different rights and much fewer
rights does not mean that they did not enjoy them by virtue of their
humanity
3. Too many rights?
 Problem of scope with an orthodox theory of rights – includes too many
rights and does not give us any guidance on how to distinguish between

lOMoARcPSD|2579011
human rights in practice and other moral rights that we enjoy by virtue of
our humanity
 E.g. the right not to be personally betrayed is not included in UDHR
 Promises create a moral duty and entitlement but this isn’t a right
 Political rights come in handy here by distinguishing between rights and
moral considerations based on their functions
 We can pursue human rights violations through courts and this is not
something we cannot do with other moral rights
Raz: orthodox theories of rights misunderstand the difference between value and
human rights (the difference between believing something is valuable to me vs.
having a right to that). For most people, our children and their welfare is something
extremely valuable and since it transcends all cultures it has an element of
objectivity. Nevertheless, we cannot sue the state if our children get into trouble or
make detrimental choices in their lives. Their wellbeing is extremely valuable yet
there is no human right to safeguard their wellbeing.
Political Functions
Human rights are those rights that can limit the sovereignty of the state. A violation of
human rights gives a legitimate reason for other states to intervene. This political
function of human rights is what defines moral rights from human rights.
Rawls – The Law of Peoples

 Human rights are defeasible triggers for state intervention
 Subset of moral rights whose violation could generate a case for military
action.
 Only a violation of fundamental rights has justified state intervention
 Does this mean that only fundamental rights are human rights? Freedom
of expression is an important right yet it could not justify war
 Rawls only recognises a few: general right to equality, freedom from
slavery, protection of ethnic groups from genocide and liberty of
conscience
Under-inclusivity
How do we tackle this problem? States do not usually intervene when other states
violate important rights (e.g. discrimination against sexuality/gender) but not
fundamental rights.
 Expand the account of intervention such as economic sanctions, public
criticisms, public pressure, and not just military action
Beitz: human rights are norms whose violation generates a reason for ‘international
concern’ – contrasting view: intervention is one manifestation of such concern

lOMoARcPSD|2579011
2nd CRITICISM
Criticism of claim that rights are discovered by natural or ordinary moral reasoning
Parochialism
 Reflect values that other cultures, states and traditions do not share
 Grotius: natural rights enable self-interested and social human beings to
live together
 Kant: natural rights possess an a priori basis independent of substantive
judgements about human ends or the means of achieving them. Natural
rights are universal because they are independent of substantive ideas.
 Both Kant and Grotius agree that no appeal to the divine is needed to
grasp human rights
 Rawls – claim to objective justification is parochial
o Disagreement about the appropriate standards of justification
o Public reason – everyone must be able to understand these rights
and this is what we should ground rights in
o Despite disagreement we can formulate human rights in a way that
is understood by everyone
o Example: we cannot ground human rights in religion given the
plurality of religion around the world
Rawls – Law of the Peoples

2 level social contract
1. Liberal societies agree to the Law of the Peoples
2. Non-liberal but decent hierarchical societies endorse the same principles
 The fact that non-liberal societies can agree to the doctrine of human
rights based on human rights addresses parochialism, but is that true?
Ways to defend universality –torture is terrifying all over the world

FGM – some women and some cultures consider this an important part of their
identity. Problem – this is terrifying to some but not to all. Since it is a practice that is
detrimental health it has to be banned universally. Sexual pleasure is important for
autonomy and ethics therefore FGM violates this.
 Law does not have as much power as it claims – we need educational and
cultural change to make a difference (informed preferences – some
preferences are simply bad) we have to make sure they are informed
before they make decisions

lOMoARcPSD|2579011
The Nature and Ground of Human Rights27/01/2016 10:09:00

Reading
1. Dworkin, Justice for Hedgehogs
2. Rawls, The Law of Peoples
3. Joseph Raz, Human Rights without Foundations
Questions
1. What is the nature of human rights?
Natural rights: rights are endowed upon humans and can be accessed through
reason.
2. Are human rights aptly understood as universal moral rights possessed by all
human beings simply in virtue of their humanity?
 Orthodox view of human rights – this is the view that moral rights are
possessed by all human beings in virtue of their humanity.
 There is now a break with the natural rights tradition.
 This lacks the contemporary human rights perspective – as human rights
have not been found and applied universally and throughout history.
 Relatively new human rights e.g. right to a fair trial, arguably invented
therefore cannot have been possessed throughout all of history
3. Does it belong to the nature of human rights that they perform some specific
political role, such as operating as benchmarks for legitimacy or triggers for
intervention?
 Rawls – human rights should be used to outlaw certain countries that do

not meet them, and we should act upon these countries and enforce
human rights for our own safety
 Raz – human rights are for the concern of the community, and should not
be used as a political tool
 Can generate a case for military action
4. Are human rights to be justified by ordinary moral reasoning or by a special form

of ‘public’ reason?
 One view: rights can be accessed through reason

 Political rights: accessed by assessing what is best for the community
5. Can human rights be defended against the claim that they are merely ‘Western’
constructs?

lOMoARcPSD|2579011
 Drafting of UDHR – over 25 member states with many different cultures

formed the document – a sense of internationalism?
 Human rights = universal moral standards. Just because the West was the
first to institutionalise them, it does not make them western.
6. Are human rights grounded in interests or in some considerations independent of

interests?
 Human rights are grounded in some independent interests for example the
right to freedom of speech, no torture, imprisonment etc.
 Even though these rights are individualistic they apply to every individual

lOMoARcPSD|2579011
Religious Symbols in Public 27/01/2016 10:09:00

S.A.S v France
The facts:
 The applicant cannot wear her full-face veil
 Gender equality
 Public safety
 Violation of rights under Articles 8, 9, 10 & 14 ECHR
Procedural history – objections

 French Parliament
 French Commission on Human Rights
 Constitutional Council
 Clear focus on Islamic veil
Four NGOs and the University of Ghent intervened in support of the applicant
French Arguments
Public safety, protection of the rights and freedoms of others, gender equality and
‘living together’
The Three Step Test

1. Prescribed by law
2. Pursues legitimate aim
3. Necessary in a democratic society
The Court’s Assessment

 Limitation prescribed by law
 Public safety – fails
 Gender equality – fails
 ‘Living together’ – legitimate
Is a limitation of rights based on the need to protect ‘living together’ necessary in a

democratic society?
Proportionality
Arslan v Turkey
 Balancing between individual rights and the rights of others
 Small number of women affected
 Islamaphobia
 Social exclusion
 Criminal sanctions

lOMoARcPSD|2579011
 Restriction of pluralism
Subsidiarity
 Wide margin of appreciation
 The role of the ECtHR in cases where the balance has been struck ‘by
means of a democratic process’
Dissenting Opinion
 Living together – broad, vague
 Disagreement regarding consensus in Europe
 Social exclusion of women
 Cumulative effect of penalties
CONSIDER:
1. Status based and interest based theories of rights

2. Would the conflict between the individual right and the collective good change
under a reason-blocking approach?

lOMoARcPSD|2579011
Religious Symbols in Public 27/01/2016 10:09:00

Reading
1. S.Berry – Does Anything Remain of the Right to Manifest Religion?
2. Article 9 ECHR
3. S.A.S. v France [2014]
Questions
1. Do we have a right to wear religious symbols in public? Which are the limitations
of that right?
We have a right to manifest one’s religion or belief and this arguably includes the
right to wear religious symbols in public.
This shall be limited when it infringes upon the interests of public safety, protection of
public order, health or morals, or the protection of the rights and freedoms of others.
2.With reference to S.A.S. v France, outline the rationale of the majority’s judgment.
Do you agree? Should a government have the power to coercively form our common
moral space?
Judgment: ban proportionate in the sense that it restricted right of ‘living together’ –
recognised that the face plays an important role in social interaction. This is unusual
as this is not expressly mentioned in the ECHR
3. Is the fundamental right to freedom of religion best understood as grounded in our

human status or in our individual interests?
4. Would the conflict between individual rights and other considerations, such as the
idea of ‘living together’ in S.A.S., change under reason-blocking theories of rights?
(Tip: see pp. 93-95 in Nagel, ‘Personal Rights and Public Space’ and pp. 328-331 in
Dworkin, Justice for Hedgehogs. According to reason-blocking theories, rights are
best understood as constraints on the kinds of reasons that governments may
legitimately act upon)
5. What is the relationship between moral rights and the common good?

lOMoARcPSD|2579011
Freedom of Artistic Expression 27/01/2016 10:09:00

Blasphemous Speech
 Criminalisation of blasphemy – conflict between freedom of religion and
freedom of expression
 How do we resolve it?
ECtHR – 3 arguments
1. Speech undermining the spirit of tolerance
2. Gratuitously offensive
3. Public order concerns
Otto-Preminger v Austria
 Council in Heaven film
 Film classified and plot circulated in advance
 Church called for pre-emptive seizure and forfeiture of film
 Criminal offence under Austrian law
 EctHR: law pursues a legitimate aim
 ‘The right not to be insulted in their religious feelings’
 Was limitation also necessary?
 Offensive v gratuitously offensive speech
 Gratuitously offensive may be restricted
 Margin of appreciation
Wingrove v UK
 Visions of ecstasy film
 Not on public display – limited audience
 Political speech differs from religiously offensive expression
 Wide margin of appreciation
 Intimate personal convictions within the sphere of morals
 No violation of Art 10
I.A. v Turkey
 Book criticising Islam
 Turkey: majority’s religious beliefs may justify restrictions on profane
speech
 ECtHR: book contained abusive attack
 Pressing social need
 Low fine imposed
Freedom of Expression – why is it important?

Legitimising function
 Democratic decision making – influence through expression

lOMoARcPSD|2579011
 Full social membership

 Moral and cultural environment
 Justification to respect law
Social Validation
 Content based – official condemnation of certain ways of life
 Portrayal and validation through free expression
 The symbolism of restrictions

lOMoARcPSD|2579011
Freedom of Artistic Expression 27/01/2016 10:09:00

Reading
1. Otto-Preminger v Austria [1994]
2. Wingrove v UK [1996]
3. I.A v Turkey
4. Dworkin – The Right to Ridicule
5. Raz – Free Expression and Personal Identification
6. Trispoitis – The Duty to Respect Religious Feelings
Questions – ATTEMPT TO ANSWER: MAY BE EXAM TOPIC
1. Outline the facts and the rationale of the majority’s judgment in Otto-Preminger v
Austria, Wingrove v United Kingdom and I.A. v Turkey. Do you agree?
2. According to Dworkin, why should a liberal democracy protect freedom of

expression? Explain the idea of the ‘legimising’ effect of free speech.
3. According to Raz, freedom of speech should be protected as an important public

good that enables, inter alia, our social identification. Do you find it convincing?
4. Does the right to freedom of religion include a right not to be offended in our
religious beliefs? How can we discover the scope of religious freedom?
5. Does the right to freedom of expression include a right to ridicule deeply held
beliefs of other people? Would your answer change were the beliefs in question
religious in nature?
6. Do the rights to freedom of religion and freedom of expression conflict? If yes, is

the conflict genuine, and how can we resolve it? If not, why do you think that they are
nevertheless understood as being in conflict in cases such as Charlie Hebdo?
7. Would the conflict between the right to freedom of expression and the right to
freedom of religion change under reason-blocking theories of rights?

lOMoARcPSD|2579011
Introduction to Legal Pluralism 01/03/2016 21:15:00
The contingency of law; relationship between state law and modernity and
particularly capitalism and the west
What is law?
 No accepted definition
 Benjamin – all violence is either law-making or law preserving
 Austin – command of a sovereign?
 Holmes – decisions of the courts?
 Dworkin – an interpretive concept to achieve justice?
 Fuller – moral idea/natural law?
 Derrida, Cover – all states originate in violence – law amounts to a vicious
circle of violence which determines what violence is justifiable
Normative orders and society

 Normative order/system of rules
 Norms render society possible
 Intrinsic to community – to speak of community/society means normative
regulation (Darhendorf 1969)
Law and Society

MacCormick – law sets a practical common line of conduct. Humans have to share
social space and must co-ordinate activities and set up reliable frameworks for
interpersonal organisation.
Contingency and Norms

 Norms depend on the historical, geographical and social context
 Normative orders take many forms dependent on the community in which
they are embedded
Pre-modern law
 Reproduced a moral order and traditional community which was
hierarchical and status based
 Sovereignty – several sources of law – 12th century England had many
civil law courts, with overlapping jurisdictions
 Little conception of either society or state in the modern sense
 Sovereign authority equally claimed by the Church
 No conception of private property
16th Century – Development of Modernity in the West

lOMoARcPSD|2579011
 Economic advances, new social groups, specialisation and differentiation

of social forms
 Revolutions in political and religious life of Europe
 New thinking and new politics, centralising authority in nation state
 Law begins to assume its forms as a distinct, autonomous and universal
institution which is the product of human determination rather than the
product of God
New Thinking
 Protestant Reformation – doctrine of personal grace so each person is
person is responsible to coming to God themselves
 Emergence of key theories of modern state law – not wisdom but authority
that makes law
Enlightenment
 Move away from religious authority to empiricism and reason as the
primary source of authority
 Locke – citizenship and private property – move from status to contract
 Rule of law based on systematic, neutral, apolitical and universal body of
norms which represents a rule by rational principles rather than men
Development of Modern State System

 Peace of Westphalia – end to Thirty Years War
 Creation of international legal relations
 Peace achieved through secular state
 Underpinned West’s imperial project
Continuing Developments
 Further fracturing of society
 Idea of law as regulatory force
 Use of law by oppressed groups to claim rights – welfare law
 Gradual democratisation of both citizenship and law
 Underlines the fact that law is a dynamic, contingent force, intimately
connected to political developments
Sociological View of the Law

 Discourse of power which supports construction of the state
 Its positivity enables it to fulfil the functions required by modernity – legal
formalism provides stability, certainty and predictability for capitalism
 Weber – monopoly of use of legitimate force
 Private isolated legal subjects – individualisation of society
 Durkheim – source of solidarity and morality

lOMoARcPSD|2579011
 Habermas – bourgeois formal law is one of the causes of the divide

between medieval/modern world
Summary of main features of modern law

 Development of nation state
 Monist, singular, official
 Grounded in ultimate norm
 Hierarchical ordering of norms
 Western understanding – hence its central role in the West imperial project
Key Claims
 Abstract legal individual is at the centre of liberal legal thought
 Equality = a deliberate official blindness to variety
 Dynamism is a condition of modernity
 The last 30 years has seen the proliferation of normative orders and
theories of legal pluralism

lOMoARcPSD|2579011
Defining Legal Pluralism

Recap from last week
 The orthodox jurisprudential view is that ‘law is and should be the law of
the state, uniform for all persons, exclusive of other law and administered
by a single set of state institutions.’ – Griffiths (1986)
 The development of the nation state was therefore fundamental to the
formation of legal monism
 Modern state law is, like all normative orders, was/is shaped and shapes
the society in which it is embedded
 As a key enlightenment discourse, state law claims to be a systematic,
neutral, apolitical and rational body of norms which is the product of
human will
This week
 The causes of failure to establish law as an objective framework of rational
principles
 Other developments which have changed state law’s power
 Definitions of legal pluralism
Q1. What were some of the causes of ‘failure’ to establish ‘law as an objective
framework of rational principles?
 Different cultures and religions
 A lot of law is subjective in nature (Ghosh test in criminal law)
 Reasonable man – decided by a judge – how do we define this?
 The law has to advance to reflect the society it is built upon
o Rape did not used to be a crime
 Creation of the liberal legal subject – hard to define
 Indeterminacy of law
 Ideas based on universalism and metanarratives seen as irrelevant with
the fragmentation of identity and development of postmodernism
o The world is much too complex
o Identities are not simple
 Law as fictional and ideological and a way of creating centralised power –
Griffiths
 Law’s claim to be a clear coherent system is vital for the rule of law
Critical Legal Studies

 1960s USA
 State law as ‘apparatus of dominion’ in that it ignores normative orders
that are separate from the state
 Incompatible with justice – rights are individualising and create false
consciousness

lOMoARcPSD|2579011
 Rule of law tied to capitalism – not neutral but the tool of powerful
economic interests
Feminist Critiques
 Formalism and claimed autonomy is a device to depersonalise power
 Rule of law is counter to women’s material and existential circumstances
of connectedness and intimacy – its claimed impartiality is unattainable but
also undesirable
Q2. In addition to the philosophical difficulties state law has encountered, the
primacy of state law has also weakened in recent decades of a range of socio-
economic and political developments; describe some of these
 WW2 showed that the westphalian state system was broken
 Supranational organisations – EU
 International movement of peoples – produces heterogenous civil society
 Changing nature of citizenship
 Weakening of European industrial power – shifts in global geopolitics
 Globalisation and the growth of corporate and transnational power
Internal causes
 Neoliberalism becomes dominant
 States retreat from social citizenship – ‘night watchman state’
 Privatisation – growing socio-economic inequalities
 Philosophical challenges to ideas of universality and to legal monism
 States difficult to govern – growth of crime
 Erosion of access to justice
Q3. Define legal pluralism

A. an empirical fact – state law is not the only law, co-existence of national and
international law
B. an ideology/political movement – law and sovereignty
C. a theory – focus on society and understanding of law
Empirical Fact
 Legal pluralism is the fact. Legal centralism is an ideal, a myth, a claim,
and illusion. (Griffiths, 1986)
 State law constantly interacting with other normative orders
 Situation in former colonies where the law of colonised peoples subsists
alongside the official state law (Bolivia)

lOMoARcPSD|2579011
Q4. Ehrlich spoke of living law. What did he mean by this expression?
 How people order their everyday life
 Each community have their own practices (Austo-Hungarian empire) –
context in which Ehrlich grew up in
 Effectiveness of state law depends on its congruence with living law – i.e.
having meaningful social rules
Gurvitch
 Simultaneous manifestations of law in various forms and at various levels
of social reality
 At the deepest level exists the collective mind which is the sphere of
spontaneously generated shared values, norms and world values
 Social law is generated through social interactions
Gierke
 Community = alternative source of law
 Law is the product of social groups
 Law associations have a reality of their own and the state recognises them
Q5. How does Griffiths distinguish between different types of pluralism and
what do his categories mean?
 Weak legal pluralism – classic ‘messy compromise that the ideology of
legal centralism feels itself obliged to make with recalcitrant social reality’
 Strong legal pluralism – sociological ‘a situation where not all law is state
law nor administered by a single set of state institutions’
Weak sense – a legal system is pluralistic when either the sovereign commands, or
the rule of recognition validates, different bodies of law
 Weak because it is still be based on the standard system of law
 This opinion is held by staunch legal pluralists as they do not see
normative orders as the best way to govern
 Normative order may be coherent, but could be an oppressive regime
(Nazi law) – must consider the social context that produces the law
UK – increasingly moving to strong sociological legal pluralistic sense
Examples of weak juristic or classic legal pluralism

 Customary law
 Tribal law
 Indigenous law
 Exist alongside official state law as something different

lOMoARcPSD|2579011
 Still rely on state for recognition
Strong, sociological or new legal pluralism

 The law is neither systematic nor uniform
 Reverse of legal monism
Legal pluralism as a political project

 Represents a better form of normative ordering
 Sousa Santos – shows how a multiplicity of legal systems can operate,
interact, interact and even compete within a single society
 Part of the struggle of marginalised groups for recognition
 Rejection of the state being portrayed as the only legitimate political
authority – law can be used as an oppressive tool
Legal pluralism as theory

 Law is just one part of a larger web of varied and complex social relations
 All forms of law therefore tend towards disorder
Q6. Pound: ‘law in action and law in books’ – what did he mean?
 Challenged the orthodox conceptualisations of law
 Myth of legal formalism
 Doctrinal law (law in books) differed from the way in which we practice law
Contemporary theorists
1. Empiricist/positivist – concerned with normative order
2. Postmodern/critical – tries to locate the legal in all those forms of regulation
Where is the divide between law and social control?

Collapsing the law into other kinds of normativity
Examples of legal pluralism

 Guantanamo bay
 Sharia courts
 Customary law
What has caused the resurgence in legal pluralism?

 Migration – diverse and multicultural societies
 Revival in religion – increase in religious influence & living law
 Growth in secularism – France
 Challenge in law’s authority – critical legal movement
 Socio-legal research

lOMoARcPSD|2579011
 Legal anthropology
 Identity politics/multi-culturalism
 Globalisation
 Fragmentation of society – value pluralism

lOMoARcPSD|2579011
The Neo-Colonial Situation and Plural Legal Norms

Recap of last week – see powerpoint
 Causes of legal pluralism
 Definition of LP: empirical fact, political project and theories
 John Griffith’s theoretical approach to LP – weak, classical & strong, new
o Weak: state law is still the predominant order
o Examples: parallel legal regimes that still depend on state
recognition of existing customs and practices
o Strong: recognition that state law is not uniform
Colonialism: legal modernity and weak legal pluralism
Paradigm of legal modernity emerged in 18th century as part of enlightenment

rationality grounded in liberalism. Liberalism – capacity for autonomous, self-
directing activity (Kant). Liberal freedoms are not birth rights but acquires through the
discipline and moral progress which make people rational subjects.
Counterpoint: what if some people cannot reach this rationality? Creation of different
groups.
Western societies based on reason and were advanced, therefore most non-
Western states were viewed as occupying a lower level of civilisation. These views
were pivotal in justifying European colonialism as law was seen as one of the
greatest gifts that could ‘civilise’ these societies.
No law = no reason. Weber – law helped create capitalism; created rules and private
property
Colonialism: Terra Nullius
‘The land belonging to no one’ or ‘no man’s land’ - territory that has never been
subject to the sovereignty of any state. Outside power can therefore establish power
there. Justified the settlement of occupied land – liberation of property from all ties
and responsibilities. Locke – unoccupied land = negative commons.
As such, ever person had an equal right to use such land. Indigenous people were
deemed incapable of self-government since they had no concept of private property
= effectively non-people who could and should be cleared out the way. This view
was reinforced by later theorists who said that the indigenous were ‘not ready for self
government.

lOMoARcPSD|2579011
The Australian Example
Australia was colonised by the British in 1788. They encountered an extensive

aboriginal population to resist invasion.
What additions to this doctrine or Terra Nullis were invoked in the Australian
Aboriginal situation?
 Aboriginal people were seen as ‘so low’ on the scale that unimaginable
measures were taken against them, including military campaigns to kill
them.
 Elements of social Darwinism; they were viewed as not fully evolved.
They were also ruled to be totally ignorant of British legal proceedings and
could not be legally tried.
1900 – commonwealth legislation denied citizenship to Aborigines

1910 – Northern Territories Aborigines Act: legal segregation of Aborigines
1937 – Winston Churchill ‘a higher-grade’ race has come in and taken their place
Key elements of superiority and justification. A lot of these views are still present in
Australia today. The same developments that produce legal pluralism such as the
general radicalism from the 1960s onwards, identity politics and human rights still
take place in Australia. These produce new views including the re-reading of
Australian history which exposes the violence, racism and genocide
Mabo & Others v Queensland [1992]

 Existing authority was Cooper v Stuart: no land law existed at the time of
colonisation
 Affirmed as recently as 1970 in Coe v Commonwealth
This case overruled this:
 Australia was NOT terra nullius and the right to occupy indigenous land
was unjust and discriminatory
 Precedents breached international human rights law
 Emergence of legal pluralism: recognition of aboriginal conceptions of
property
There are two interpretations of Mabo:

Positive: acknowledged the wrong done, recognised racism, as well as upholding
human rights.
Negative: formal equality removes all context and thus does not describe historical
reality. Refusal to deal with the original act of dispossession legitimates it – still a
non-recognition of Aboriginal identity.

lOMoARcPSD|2579011
This case exemplifies legal pluralism

1. Importance of law (legal order) as creating a premise (terra nullius) and operating
as a justificatory device (excluding and killing aboriginals).
2. Weak legal pluralism – the new status of Aboriginal title depends on state
recognition – but the state’s sovereignty and law is not challenged.
The different stages of legal pluralism – Matej Avbelj
1. Post-colonial legal pluralism – legal anthropologists show that there was law
before colonisation.
2. State legal pluralism – ideology of unitary legal system is wrong, there are lots of
other sources on law.
3. Interlegality – the state is not the only source of normative and legal regulations
Different states of legal pluralism – de Sousa Santos
 There is now a subaltern cosmopolitan legality; a recognition that law

comes from everywhere. ‘We live in a time of porous legality.’
 Individuals are therefore now governed by a variety of regulatory orders
which overlap, interact and even conflict.
 The whole idea of the nation state has gone in a sense and instead there
are many sources of law and regulations that all interact.
Legal Monism in England and Wales – strong legal pluralism
Sovereign authority was directly translated and communicated through state law
which was differentiated from politics and religion.
Legal sovereignty was simply assumed by most lawyers to be a fact and English
common law was believed to be a superior legal system.
Legal education was strictly black letter law and dominated by analytical positivist
jurisprudence. The legal profession was small and homogenous.
This all changed from the 1960s onwards…

Large scale immigration, EU, globalisation etc.
 Extended the relationship between the law and the state
 Politicisation of law and increasing concern with rights
 Expansion in the legal profession, diverse and commercialised
 Political constituencies fracture
 Transformation of economy, privatisation and multi-nationalisation

lOMoARcPSD|2579011
 Access to state justice for many is eroded, end of legal aid
Enlightenment modernity has crumbles and is being replaced by a postmodern

paradigm of interlegality. De Santos identifies that the sources of contemporary
power and law which influence state law are:
 The household
 The workplace
 The citizen place
 The world place
De Santos = STRONG legal pluralism.
Multiculturalism
Multi-cultural societies are concerned with how the nation state should manage the
racial and religious differences that pervade Britain. Secularism is a key aspect of
Enlightenment political reason, yet some cultures that settle here are deeply
religious. However, multiculturalism also derives from enlightenment thought with the
philosophy of tolerance.
Multiculturalism as a mode of LP moved beyond tolerance of difference to

recognition and positive accommodation of group differences. Group differentiated
rights may be held by the individual members of a minority group (e.g. Sikhs being
allowed to wear turbans instead of safety helmets).
Examples: multilingual ballots, funding for minority language schools, representation

of minorities in government bodies. Kymlicka’s theory of liberal multiculturalism.
In some cases, the group right directly restricts the freedom of non-members in order
to protect the minority group’s culture (restriction of English in Quebec)
Kymlicka – Neoliberal multiculturalism
A commoditised version which celebrates mobility and diversity and has been
promoted by international organisations. Grounded in consumer culture, where
people have the right to market themselves as they wish. Works as a technique of
governance that integrates minority products into the market. Unconcerned with
politics yet has allowed a degree of freedom to preserve their own normative order to
manage their own communities.

lOMoARcPSD|2579011
However, they are not granted ultimate legal authority and this is rather a respect for
norms. On what basis should the state intervene in family/community norms?
Kymlicka advocates a form of multiculturalism tied to an ethic or social membership.
This all depends on how we see state law and whether it is the binding force of
society.

lOMoARcPSD|2579011
Legal Pluralism Beyond the State 01/03/2016 21:15:00
Three ways of defining legal pluralism, theory, fact and political project.
EMPIRICAL FACT: different forms of law operating within one jurisdiction. A

coexistence of different normative orders.
 Example: Australia (aboriginal and common law), UK and EU,
multiculturalism, globalisation.
POLITICAL PROJECT: grounded in a criticism of state law and sovereign

responsibility. A vehicle for marginalised groups achieving status. Legal monism =
oppressive.
 Example: South American tribe law being recognised alongside state law
in Bolivia.
THEORY: rejection of black letter law and focus on the customs of a particular
community, creating fluid domains for action known as interlegality (Santos)
 Erlich – living law
 Anthropologists’ view of pre-modern normative orders as law
What were the causes of the emergence and interest in legal pluralism?
 Collapse of Westphalian state system and geopolitical change
colonisation, globalisation.
 New political movements that challenged the neutrality of state law:
neoliberalism.
 New intellectual movements: postmodernism, decline in meta narrative
Do globalisation and supranationalism signal the end of Monism and Modernity?

 Emergence of increasingly authoritative practices of global rule diluting the
sovereign democratic authority of the nation state.
 State law is no longer the exclusive form of law.
 Highly important decisions are taken by a handful of international
institutions and entities rather than by representative institutions.
GLOBALISATION
 Technological advances
 Fall of the communist bloc
 Dominance of neo-liberal theory
 Global trade, capital and investment movements
 Migration
 Dissemination of knowledge

lOMoARcPSD|2579011
 Highly fluid world economy
A definition: Held (1999) – 4 elements

1. Extensity – stretching across borders
2. Intensity – magnitude and interconnectedness
3. Velocity – speed of global transactions
4. Impact – intertwinement of the global and the local
The result is the emergence of a relatively autonomous space of global governance.

Two key points:
AUTONOMY: self contained sphere of global regulatory governance
ENCROACHMENT: on independence of nation state
Buchanan: this has forced the nation state to evolve but is a threat to national
sovereignty.
Nation state – capacity to tax: this is slowly being eroded by international companies
who are based all over the world and who avoid tax.
The nation state taken as starting point for a traditional analysis of society and law.
Globalisation and Law: A Global Legal Space?

 Globalisation is a product of law as well as shaping law
 Global commerce relies on local law and domestic enforcement
 Legal ‘entrepreneurs’ that make this flow of capital possible
 Human rights lawyers are also doing the same
Different forms of global law

1. State or treaty based
2. Private
3. Distributed or networked
4. Hybrid
Examples:
 Trade: WTO, IMF
 Health and sanitation: WHO, codex alementaruis
 Global security: EU, UN, NATO
Challenging features of global law:

 Decentring of authority: global legal forms can coexist, operate entirely
outside of or compete with state law.
 Self-constituting governance: no formal democratic basis yet these bodies
exercise significant power and authority.

lOMoARcPSD|2579011
 Informality: global norms are soft, they do not create obligations for states
or private actors.
 Private ordering/Lex Mercatoria: these norms are not subject to judicial
enforcement, are highly diffused and informal (no separation of powers)
Two sides of globalisation: the globalisation of the elite and grass roots
globalisation.
Are these rules and processes really law?

 Global governance networks generate rules and norms (primary rules) and
rules for interpreting and implementing these rules (secondary) HART
 They generate and follow their own particular legal proceedings
 Occasionally a global judicial entity will have jurisdiction over the acts of
another global governance body
On the other hand..
 Can we really conceptualise these different forms and practices as law?
 Is this actually concerned with power, not law?
 Who decides what law is if not for the state?
 How can we legitimise global law?
SUPRANATIONALISM
Definition: having a power or influence that transcends national boundaries.
The EU: 28 member states, 500 million people, 23 official languages.
A hybrid form/special case:

 At face value it seems to be a perfect example of legal pluralism, yet within
the geographical member states of the EU, there are two distinct legal
orders.
 EU is proclaimed as an autonomous legal order and even though member
states give up their sovereignty, they do it voluntarily and they have not
given up the autonomy of their own legal orders.
 Paradigm: national and supranational law (not strong legal pluralism)
 Rather one of co-existence of legal autonomous orders that both claim
autonomy.
 Completing plausible claims to ultimate legal authority.
COMPARISON: look at lecture slides

lOMoARcPSD|2579011
Conclusion: a new legal phenomenon that challenges the idea of state law but also
works alongside it. One of heterarchy (MacCormick)

lOMoARcPSD|2579011
Legal Pluralism Beyond the State 01/03/2016 21:15:00
What do you understand by the term ‘supranationalism’?

 When a large amount of power is given to an authority which in theory is
placed higher than the state.
 Example = EU
The ‘core question’ posed by Matej Avbelj is: ‘how to approach the challenges
that EU legal pluralism […] poses for the role that law is expected to play in the
European Union?’
First of all, EU legal pluralism does not operate on the micro level by putting forward
examples of numerous other private actors that in different informal, semi-formal and
formal environments allegedly also create law. Rather, it works on the macro level by
contending that there is another structure, i.e. a supranational legal order, which
claims to be autonomous, on an equal footing with the state, or even trumping it by
asserting equally plausible ultimate legal authority.
What are the two different potential responses he identifies?

 Hierarchical approach: respond to the challenges of EU legal pluralism
in a monist way. We can distinguish between the monist international law
approach, the state federalist approach, and the pluralistic approach under
international law. According to the monist international law approach, the
supranational legal order, EU as a polity, cannot plausibly claim ultimate
legal authority, since its origin has to be traced back to the common
international accord of the Member States which remain the ultimate
arbiters of the validity of EU law.
 Heterarchical approach: recognise for both supranational and national
legal orders to have equal plausibility of claims to ultimate legal authority.
Both legal orders are considered autonomous, with their own exhaustive
set of secondary rules.

lOMoARcPSD|2579011
Reviewing Legal Pluralism 01/03/2016 21:15:00
DOUGLAS-SCOTT
1) General Position
 Agrees that LP describes the current legal state of affairs.
 However, this situation is unstable, uncertain and disordered.
 Cites Hart’s view – a multiplicity of rules of recognition mean the legal
system could dissolve.
2) Lack of clarity in the concept

 LP is being used as an umbrella term to convey a ‘myriad of complex
legal relationships’ – too expansive, creates an overlap with law and other
forms of social life.
 There are many forms of interrelation between different legal orders,
from acknowledgement to full incorporation – these all raise different
issues.
 LP’s definition of law is incoherent: ‘If law can span many different
features of society when do we dispense the term law and find ourselves
on the larger plane of social interaction?
3) Other critiques
 There are no overarching meta-principles to organise fragmented legal
orders, unlike state law.
 LP brings increased risks of accountability and legitimacy of law.
o Privatisation of justice: the powerful can engage in forum shopping
o Multinational companies can move around the globe in search of
low cost labour which is unprotected by state law, and to evade
tax
 There is nothing ethically superior about LP – it doesn’t encourage an
internal morality of law.
4) The EU: pros and cons of legal pluralism

NEGATIVE
 A monist, universalising type of justice risks deadening the vibrancy of
the EU’s many cultures, failing to do justice in many singular cases.
POSITIVE
 However, an alternative could create a world of private, self-serving
justice which fails to meet the needs for an overarching transnational
form of justice.

lOMoARcPSD|2579011
5) The benefits of positive (state) law

 Clarity and capability of state law
 Guiding principles of neutrality and objectivity
 Transparency – justice must be seen to be done
 Rules to guarantee a fair trial
 Equality before the law
 Ideas of rights, justice and government accountability
 In an era of ever increasing globalisation and legal pluralism, it is integral
that legal justice must be maintained
To summarise, Douglas Scott believes that legal pluralism describes the current
state of legal affairs. However, this situation is unstable: (Hart) a multiplicity of rules
of recognition can cause the law to dissolve. Her main critique is the lack of clarity
within the concept, with LP being used as an umbrella term which is incoherent and
could describe a number of social interactions. Her other critiques include a lack of
accountability, and no overarching principles to join LP. She uses the EU as an
example of illustrating the strengths and weaknesses of LP, warning of the
deadening of culture but also international justice being eroded if there was an
alternative, it could damage international justice. She also lists some advantages of
state law, such as neutrality, objectivity, equality before the law and the capability of
state law.
TAMANAHA
1) General Position
There are 2 types of problems with legal pluralism:
ANALYTICAL
 Plurality of legal pluralism: there is no agreement on the underlying
concept of law

Trivialization of law: where do we stop speaking of law and start
describing social life?
INSTRUMENTAL
 Without an agreement on the fundamental concepts there can be no data
gathering or observation.
2) Some legal pluralist definitions of law

 Private laws and law enforcement by non state bodies
 Rule making and enforcement by private corporations (universities)
 Customary law
 ADR – alternative dispute resolution
 Social norms by which people live

lOMoARcPSD|2579011
 Merry: ‘where do we stop speaking of law and find ourselves simply

describing social life?’
3) Tamanaha’s difficulty with these definitions

 There is no agreement on what is meant by law other than it does not
have to mean state law.
 This definition has become meaningless – the law is everywhere
 There is no benefit to squeezing together all such things as household
social relations, law of the market place etc. under the ‘rubric of law’
4) Tamanaha’s critique of Teubner

 Teubner: the law is whatever people discuss in terms of the binary code
legal/illegal
 Characterising law in terms of communication loses touch with the
power and effects of law
 This is an essentialist definition: its based on a set of presuppositions
about what the law is and does
To summarise, Tamanaha heavily critiques the notion of legal pluralism. He does

this on two levels. The first is analytical problems, where he states the plurality of
legal pluralism and the trivialization of law cause problems. Secondly, he also
critiques legal pluralism on an instrumental level, saying that no fundamental
definition means that there can be no data collection. He points out the issues with
LP definitions of law such as customary law and ADR as squeezing social
interactions under the rubric of law. Furthermore, Tamanaha critiques Teubner’s
description of the law in terms of a binary code because a focus on communication
overlooks the power and effects of law. Also, an essentialist definition is based on a
set of presuppositions about what the law is and does.
SAGY
1) General Position
 Uses the example of a Ghanaian camp full of refugees who are pushed
to solve their legal problems privately.
 Unwillingness on the part of authorities to monitor human rights
violations.
 Indicates that there is an inter-relationship between law and justice and
the nature of society.
2) The dangers of no rule of law

 Formal law can support a more equal, just society.

lOMoARcPSD|2579011
 Gives us a better chance of protecting minority rights.

 The rule of law is a restraint on the abuse of power – draws parallels
with Krygier
Sagy is in favour of state/positive law. She uses the example of Ghanian refugee
camps and the official’s reluctance to deal with human rights violations. She explains
the relationship between state law and justice and the nature of society. Formal law
has a better chance of protecting minority rights and can help form a more just
society. If the state itself is immoral, then so will the law be.
PROBLEMS WITH STATE LAW

 Legitimises inequalities through its focus on formal legal equality.
 Applies the same rules to different and unequal people.
 Legal concepts such as private property, contract and debt have
created a highly unequal world system.
 Imperial use of the rule of law
 Colonial situation: Australia, Terra Nullius and the case of Mabo
Ultimately, the sort of law you have is dependent on and intimately related to
the sort of society in which it is embedded.

lOMoARcPSD|2579011
Reviewing Legal Pluralism 01/03/2016 21:15:00

Summarise Tamanaha’s critique of legal pluralism. Do you agree with it? If so,
why?
 Analytical problems: no agreement on the underlying concept of law

(plurality of legal pluralism) and difficult to draw the line between law and
social life (trivialisation of law).
 Instrumental problem: no fundamental agreement of concept means there
can be no data gathering.
 An essentialist conception of law takes into account many ideas, norms
and social practices – very hard to define.
Does a strong legal pluralism approach give us an idea of ‘law’ that aspires to
embody universal, democratic and inclusive criteria through which to critique political
power?
 Strong legal pluralism = forms of law do not have to be validated by the

state.
 Can be said to be inclusive, recognises other forms of social ordering.
 Not universal in a sense – there is no general conception of the law but
instead many.

Jurisprudence Lecture Notes Semester 1 PDF

Încărcat de

Informații document

Descriere originală:

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Jurisprudence Lecture Notes Semester 1 PDF

Încărcat de

Drepturi de autor:

Formate disponibile

lOMoARcPSD|2579011

Jurisprudence - Lecture Notes Semester 1

Jurisprudence (University of Leeds)

StuDocu is not sponsored or endorsed by any college or university

Why do we study it?

What is the law?

Different legal theorists

What is the right thing to do? – core question

Downloaded by s. khairin (khairinarusman@gmail.com)

 Is the behaviour illegal? Yes – you simply apply the statue

What IS the right thing to do?

Downloaded by s. khairin (khairinarusman@gmail.com)

Law and Morality 28/09/2015 11:16:00

MORALITY = a set of beliefs, values, principles and standards of behaviour enforced

The big debate

Facts and Norms

How can we distinguish between legal and moral norms?

The OUGHT/IS distinction

Downloaded by s. khairin (khairinarusman@gmail.com)

There are some overlaps of normative and descriptive legal theory

Cannibalism: Illegal? Immoral? Both?

Natural Law Theory

Goal Based Theory:

Rights Based Theory:

Downloaded by s. khairin (khairinarusman@gmail.com)

Theories of Natural Law 28/09/2015 11:16:00

Big Debate Timeline:

The two great questions in Natural Law Theory

Classical Natural Law Theory

Ancient Greeks – Plato, Aristotle

Roman Legal Thought – Stoics, Cicero

Christian Scholars – Acquinas

Downloaded by s. khairin (khairinarusman@gmail.com)

 Human law’s role is to serve the natural law

Does moral validity = legal validity?

Thomas Aquinas (1225 – 74)

Political Natural Law Theory

Blackstone (1723 – 80)

The Secular Turn

Neo-naturalism Theories in the 20th Century

Downloaded by s. khairin (khairinarusman@gmail.com)

John Finnis’ Neo-Thomism

Lon Fuller’s ‘internal morality of law’

Downloaded by s. khairin (khairinarusman@gmail.com)

The Social Contract: Thomas Hobbes 28/09/2015 11:16:00

Two main strands in political philosophy

Social contractarians = first appearance of rights

Emergence of the modern state

Social Contractarians: Hobbes, Locke & Rousseau (less important)

HOBBES (1588 – 1679)

Downloaded by s. khairin (khairinarusman@gmail.com)

What caused this situation?

Hobbes’ Covenant – the social contract

Is Hobbes’ thought secular?

Downloaded by s. khairin (khairinarusman@gmail.com)

Downloaded by s. khairin (khairinarusman@gmail.com)

The Social Contract: John Locke 28/09/2015 11:16:00

Locke = father of liberalism

Downloaded by s. khairin (khairinarusman@gmail.com)

Natural Right to Punish

Transition to Civil Society

Downloaded by s. khairin (khairinarusman@gmail.com)