What is jurisprudence? Flashcards
What is jurisprudence?
A branch of philosophy that shows how we recognise certain rules as law, the impact of law on society and the relationship between rules, morality and justice.
Natural law theory
Attempts to create man-made rules that conform to ideas of goodness, righteousness and morality. Hence, it is the point of intersection between law and morals. I.e there is a set of standards outside of what humans proclaim to be laws such as principles of justice, moral values and fundamental rights.
Where are natural laws derived from?
- the eternal order of the universe
- divine will
- the natural conditions of human life
- self evident values and practical reason
What are John Finnis’ seven practical goods?
- life
- knowledge
- play
- beauty
- friendship
- practical reasonableness
- religion
Who is Jeremy Bentham?
An english philosopher, jurist and social/political reformer regarded as the founder of modern utilitarianism
Legal Positivism
A view of law as it is not as it ought to be
Bentham’s stance on legal positivism
He aimed to show that law is merely a human creation, understood as a set of declarations of the will of the sovereign (supported by the threat of a penalty or a promise of reward)
Bentham’s requirements of law
- Wish
- Sanction
- Expression of wish
- General morality
Hans Kelson’s features of law
- it is a statement about how people ought to behave in society based on a ‘norm’
- backed up by the threat of sanction
What is the ‘command theory’ of law and who created it?
Theory founded by John Austin (professor of Jurisprudence London Uni)
Law is a wish expressed by a sovereign requiring people to behave in a certain way. The sovereign is a determinate and common superior that the majority of people are in the habit of giving obedience to.
H.L.A Hart’s view on command law theory
Reinvigorated legal positivism by redefining law as more than a ‘command’ backed up by threat of a ‘sanction’ but instead, one that has passed through an established procedure that everyone agrees on.
What is feminist jurisprudence?
- examines how male dominance is embodied in law
- argues that the law is imbued with masculine perspective and privilege
- points out male oppression in gender roles
- questions assumptions inherent in concepts of universality, equality and objectivity
Liberal feminism
- law sometimes treat men and women differently when it should treat them the same
- law sometimes treats men and women the same when it should treat them differently
Same feminism
- differences between men and women have been used to discriminate against women in the past
- we need to discredit false differences which are being used to deny women opportunities
Cultural feminism
- emphasises the differences between men and women
- notions of law are shaped by masculine, individual rights based views of the world
- women are more socially and culturally connected and this needs to be better reflected in the legal system
