Find out more about Jurisprudence

This post was contributed by Professor John Strawson of the University of East London.

John_bio imageJurisprudence helps us understand the way law works and also the way in which law operates in society. Currently there is much discussion internationally about the relationship between democracy and identity in which majoritarian democracy of the popular will is contrasted to liberal democracy. This debate raises key issues about sovereignty, the rule of law, constitutionality, the rights of minorities and autonomy of the individual. At root we need to reflect on whether law represents or shapes societies.

For students on the University of London UG Laws programmes we are running a November Study Support Event for Jurisprudence and legal theory. During this course I will begin by exploring the foundations for study. It will then outline the formation of jurisprudence in the 20th century through revisiting 19th century debates about the definition of law and the debate between natural law and positivism. The relationship between morality and law has been much debated between those who think that law should enforce morality and those who argue that law is a social institution distinct from morality.

These debates became critical in the wake of World War II as the international community attempted to grapple with the idea that Nazi government had been an “illegal regime.” This posed difficult questions about when it became illegal and whether officials of the regime could be charged with crimes. If as imperative theories of law argue law is essentially the command of the sovereign, how could illegality have taken place? Did subsequent prosecutions rely on some fundamental defect in the legal system or on retrospective lawmaking? At the same time the idea of human rights took root in the discussion of law. As a result, the historical questions about Germany between 1933 and 1945 remain pertinent when analyzing the legal systems of contemporary states accused of serious human rights abuses.

Jurisprudential debates about the origins and character of law became particularly relevant. Jurisprudence asks such questions as:

How was law connected to sovereignty?

Did human rights depend on a legal system or natural rights?

Was a legal system that did not respect human rights a valid legal system?

Was a there an objective definition of law?

Is there a moment when law begins? – and what happens when a revolution, coup d’état or state break-down takes place?

The past thirty years have seen the end of communism in the Soviet Union and Eastern Europe, the end of apartheid in South Africa, the break-up of states such as the Soviet Union, Yugoslavia and Ethiopia – and the Arab Spring. All these events raise fundamental questions about the legitimacy of the state and the basis of the legal system.

The session will focus on the theories advanced by Hart, Kelsen, Raz and Dworkin. Each theorist has much to say on these issues and offer a distinctive approach to them. In different ways they challenge us to think carefully about the relationship between power, state and the law. This will be helpful in thinking though the what the limits are to law and how that state operates in relationship to those limits. This returns us to the discussion of relationship between democracy and identity. We will conclude the session by assessing the contribution of liberal theory to law. As we will see from the theorists, we are discussing, there are radically different approaches to the concept of the liberal state. For some the liberal state must be a strictly neutral institution but for others the liberal state is an enabling institution which positively promotes values such as freedom, autonomy and emancipation.

The session will be taught through a mixture of short presentations, questions and answers, discussions and some short video or audio clips of the key jurists to be discussed. Student participation will be encouraged. Some preparation will help you get most of the session. At the least Read chapters 1 and 2 of the Module Guide and pages 1-19 of M D A Freeman, Lloyd’s Introduction to Jurisprudence (London: Sweet and Maxwell, 2014). Do bring your questions!

I look forward to meeting as many University of London students as possible in November on the Study Support Course. Full details on the VLE.

  • Professor John Strawson is co-director of the Centre on Human Rights in Conflict at the University of East London where I work in the area of Law and Postcolonialism with special reference to the Middle East, Islam in colonial South Asia and international law. I have held visiting positions at the Institute of Social Studies (The Hague, Netherlands) Birzeit University, (Palestine) and was visiting professor at International Islamic University Malaysia in 2007. I am the author or editor of five volumes, the most recent being Injustice, Memory and Faith in Human Rights, edited with Chainoglou, Collins and Phillips (Routledge, 2018), and have taught jurisprudence and legal theory since 1972.

 

 

 

 

 

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