Week 4: English Legal Theory

Question 1

What is the command theory of law?

Answer 1

Theory based on human behaviour, habits to explain what a legal system is, but without mention of psychological states.

Question 2

From whose perspective is the command theory of law made?

Answer 2

John Austin, a legal positivist.

Question 3

What does a command comprise?

Answer 3

A desire with regards to:

1. someone’s behaviour
2. an expression of that desire
3. a sanction or threatened harm for non-compliance

Question 4

What is a sovereign?

Answer 4

A sovereign is something that

1. everyone habitually obeys and
2. do not habitually obey someone or something else

Question 5

What are Inns of Courts?

Answer 5

Inns of Courts are law schools where people receive legal training. There are 4. Just remember “Outer Temple” never evolved.

1. Gray’s Inn
2. Lincoln’s Inn
3. Inner Temple
4. Middle Temple

Question 6

Who is Edward Coke?

Answer 6

Chief Justice of the Common Pleas and then later King’s Bench. Eventually gets dismissed after conflicting with James I. Later on he codifies and rationalises the common law (Institutes of the Laws of England)

Question 7

What is the ‘common law mind’?

Answer 7

1. Sees law as ‘history’
2. Sees common law in constitutional terms more so than just in reason and logic
3. Focus on liberty

Question 8

Conflict with Baronial Courts?

Answer 8

Baronial courts shift to focus to determine if an action falls within an established royal writ. This leads to focus on pleadings (rather than argument) and leads to inns of courts

Question 9

How did the invention of ‘liberty’ come about?

Answer 9

During the English Civil War, Charles I became very regal and liberty becomes a defining appeal to English legal thought. This is closely associated with land-property rights: If someone says they don’t have ‘liberty’, they are simply saying that they lack the freedom of landowners, not being able to do what they want.

Question 10

Who is Sir William Blackstone?

Answer 10

He wrote probably the most influential book on common law ever written. “Commentary on the Laws of England”

1. Common law mind as nationalist project - Blackstone views common law as superior to France
2. Common law mind and class - common law entrenches the higher classes and Blackstone celebrates this. Giving upper classes this freedom and liberty ensures they can devote proper attention to proper ruling more than running their business.

Question 11

Who is Thomas Paine?

Answer 11

He was the beginning of a radical effort to supplant historical legitimacy that legitimates the common law with a much more French vision based on reason.

His book “Rights of Man” was initially illegal but overtime, it became widespread and a large portion of the English population had read and discussed his book.

Question 12

Who is Edmund Burke?

Answer 12

Burke is the founder of modern conservativism. He looks at the French Revolution and despises it, saying the English common law system is far more superior.

He says that the source of legitimacy should not be Frenchmen who invaded them 600 years ago. (His book “Reflections on the Revolution in France”)

Question 13

What does Sir William Blackstone say?

Answer 13

1. Certain rights are endowed by the immutable laws of nature and the law protects and regulates these rights
2. People give up part of these rights when they live in a society
3. Having no law = no freedoms, therefore the common law mind is a nationalist project
4. Continental law/imperial law is aimed at vesting arbitrary and despotic power to control the masses in a select few (Blackstone even slaves that land in England fall under the protection of English law)

Question 14

What are William Blackstone’s reflections on the revolution in France?

Answer 14

1. Common law reflects the natural flow as rights get passed on just like property and lives do
2. Common law institutions inherently secure liberal right and prevent upstart (basically less prone to radical changes)
3. French revolution was doomed because they gave up the moderating effect of law rooted in custom and the natural state, instead acceding to an arbitrary power

Question 15

What are Thomas Paine’s beliefs?

Answer 15

1. Governments act as if they were afraid to awaken a single reflection in man
2. Simply following precedent without regard to the principles of precedent is a vile system
3. People look forward but governments look backward

Question 16

Who is Jeremy Bentham?

Answer 16

Child prodigy trained in law, known for coming up with a particular moral philosophy:

1. Utilitarianism: strong focus on rights and what is allowed and what is not.
2. Natural rights as “nonsense on stilts”: Utilitarianism maximises happiness
3. Law and codification: admires French civil code and to the degree that their code derives from reason and not historical practice

Question 17

Who is John Austin?

Answer 17

He makes a claim that describes the legal system. All law even the common law are commands that can be traced back to the sovereign.

Question 18

What are the critiques to John Austin’s command theory of law?

Answer 18

1. In many modern societies, lawmaking power is dispersed and it is very difficult to identify a “sovereign” in Austin’s sense.
2. Most legal systems include rules that do not impose sanctions, but empower officials or citizens to do certain things (such as drawing up wills), or specify ways that legal rules may be identified or changed.
3. Those threats do not give rise to obligations. If they did, there would be no essential difference between a gunman’s threat (“Your money or your life”) and an ordinary piece of legislation

Question 19

What are the responses to John Austin’s command theory of law?

Answer 19

1. Not at all difficult to identify a sovereign
2. Rules that empower official of citizens are also commands
3. Commands of the sovereign are not the same as ordinary commands. The sovereign has a normative status that a gunman does not.

Question 20

Who is Arthur Venn Dicey?

Answer 20

Supporter of Modern Conservativism, Dicey is aristocratic and is concerned about radical movement. He wants to return to the more traditional common law tradition.

Question 21

What does A.V Dicey propose?

Answer 21

“Introduction to the Study of Law of the Constitution”
1. He develops a constitutional framework based on precedent and the common law for England (Francophobe influences)

2. Return to conception of law as process
3. What makes English law superior to French law is the rule of law

Question 22

What are the components of Dicey’s rule of law?

Answer 22

1. Supremacy of “regulatory law” - the law applies to the government as much as it does to everyone else.
2. All, regardless of status, are subject to common law as administered in common law courts (one law for all).
3. Binds both public and private actors equally through process-based law, courts are the ultimate body of legal supremacy, government cannot override with their interpretation.