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Chapter

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.

Chapter

This chapter explores classical positivism. The discussions cover Bentham’s concept of jurisprudence; Bentham and Austin’s command theory of law; the attachment of sanctions; Kelsen’s pure theory of law; and the significance of classical positivist theories.

Chapter

This chapter presents some final thoughts from the author. It suggests that readers may understand the nature of law, and thus jurisprudence, by answering the following questions: What, after studying the many theories discussed in this book, do you believe law is? Can law be analytically severed from morality? Does law have a purpose? If so, what might that purpose be? Can law secure greater justice for all who share our troubled planet? Can greater analytical clarity improve not only our understanding of the concept of law, but also, and as importantly, enhance the prospects of a more just world? Is this the raison d’être of theorizing about law?

Chapter

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the way in which the actions of the state can infringe the Treaty. The Treaty contains a number of relevant provisions, including Article 4(3) TEU, and Articles 14, 34, 101, 102, 106, and 107-109 TFEU. While there are valid reasons for EU controls, the topics discussed raise important issues concerning the very nature of the EU. Thus, the jurisprudence under Article 106 has prompted questions about how far it is possible for a state to entrust certain activities to a public monopoly, or to a private firm that has exclusive rights. The UK version contains a further section analysing issues concerning state aids and the UK post-Brexit.

Chapter

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the way in which the actions of the state can infringe the Treaty. The Treaty contains a number of relevant provisions, including Article 4(3) TEU, and Articles 14, 34, 101, 102, 106, and 107-109 TFEU. While there are valid reasons for EU controls, the topics discussed raise important issues concerning the very nature of the EU. Thus, the jurisprudence under Article 106 has prompted questions about how far it is possible for a state to entrust certain activities to a public monopoly, or to a private firm that has exclusive rights. The UK version contains a further section analysing issues concerning state aids and the UK post-Brexit.

Chapter

This introductory chapter sets out the book’s scope and primary goals, and outlines some useful works on jurisprudence recommended by instructors in American law schools. It distinguishes between descriptive legal theory, normative legal theory, and critical legal theory, and describes Lon Fuller’s entertaining hypothetical ‘Case of the Speluncean Explorers’, a popular launching pad for the comprehension of legal ideas. The chapter concludes with an explanation of the point of legal theory, suggesting that analytical clarity is paramount in times of turmoil when the voice of the demagogue is loudest. Careful consideration of the most fundamental questions of law, justice, and the meaning of legal concepts is particularly important. Legal theory has a central function in defining, shaping, and safeguarding the values that underpin our society.

Chapter

This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.

Chapter

This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.

Chapter

This introductory chapter sets out the book’s scope and primary goals, and outlines some useful works on jurisprudence recommended by instructors in American law schools. It explains the central concerns of the subjects, distinguishing between descriptive legal theory, normative legal theory, and critical legal theory, and describes Lon Fuller’s entertaining hypothetical ‘Case of the Speluncean Explorers’, a popular launching pad for the comprehension of legal ideas. The important concept of the rule of law is discussed and analysed. There is an extended account of the controversial question of whether judicial review is undemocratic. The chapter concludes with an explanation of the point of legal theory.

Chapter

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

Chapter

J. E. Penner and E. Melissaris

This chapter first distinguishes between the modern and the postmodern conditions or eras with reference to the work by Jean François Lyotard, and then discusses two fundamental ideas underpinning modern law and legal theory: the rational and autonomous subject; and the clarity and objectivity of meaning of the legal text. Drawing on Michel Foucault and Jacques Derrida, it shows how postmodern thought questions these foundations of modernity, and, finally, discusses the practical significance of postmodern jurisprudence: its ability to provide answers to pressing questions of law and justice.

Chapter

This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.

Chapter

This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the concept of a treaty; the anatomy of treaties (including the making of treaties; authority to conclude treaties; expression of consent to be bound; invalidity of treaties (non-absolute grounds for invalidity of treaties, absolute grounds for invalidity of treaties, amendment, and modification); suspension and termination). The key issues addressed include the scope of legal obligation (the principle pacta sunt servanda, treaties, and third States); interpretation and reservation to treaties (including interpretative declarations); and finally, problems concerning the grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, with special emphasis on jurisprudence of the International Court of Justice.

Chapter

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Chapter

This chapter presents eight legal essays written by law students, six in response to problem questions and two in response to ‘discuss’ questions. The first essay is a first-class example of how the IRAC method of legal writing can work in practice; the second, third and fourth essays deal with contract; the next three are tort questions; and the last essay relates to a jurisprudence ‘discuss’ question. Each essay is followed by general comments and a class mark. A partial sample from a first-class essay in tort appears before the essays, which the student can use to improve their individual writing style.

Chapter

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Book

James Penner and Emmanuel Melissaris

Fully updated and revised McCoubrey & White’s Textbook on Jurisprudence clearly breaks down the complexities of this often daunting yet fascinating subject. Sophisticated ideas are explained concisely and with clarity, ensuring the reader is aware of the subtleties of the subject yet not overwhelmed. With chapters dedicated to both key concepts and leading theorists, this text takes a wide-ranging look at jurisprudence and places central ideas in context. In particular it centres around one of the leading theorists, H. L. A. Hart, and considers the landscape of jurisprudence in relation to his seminal The Concept of Law, looking at the key ideas that influenced him and considering the response to his work. Coverage of post-modern and feminist legal theory is also included, alongside discussion of key theorists such as Thomas Hobbes, Immanuel Kant, and John Rawls. Logically organised to support the topics commonly taught on jurisprudence and legal theory courses, this text provides an easy-to-follow and digestible account of this wide-ranging subject, making it the ideal companion text for further reading and research throughout your course. New to this fifth edition are: substantial revision of Part 1: Theories of the Nature of Law; discussion of philosophical issues in law, featuring three new chapters: The Building Blocks of Law: Norms and their Nature; Governing and Obedience; and Law and Adjudication; chapters on the political and legal philosophies of Hobbes, Kant, and Rawls; and substantial revision of the chapters on Marxism and postmodern legal theory.

Chapter

Jennifer Seymour, Clare Firth, Lucy Crompton, Helen Fox, Frances Seabridge, Susan Wigglesworth, and Elizabeth Smart

This chapter provides an introduction to the European Convention on Human Rights and the Human Rights Act 1998, taking into account the origins of the Convention and the Human Rights Act 1998 and their incorporation into UK legislation; the general principles of European jurisprudence; the Articles and the Protocols themselves; and areas where potential breaches may occur.

Chapter

Clare Firth, Jennifer Seymour, Lucy Crompton, Helen Fox, Frances Seabridge, Jennifer Seymour, and Elizabeth Smart

This chapter provides an introduction to the European Convention on Human Rights and the Human Rights Act 1998, taking into account the origins of the Convention and the Human Rights Act 1998 and their incorporation into UK legislation; the general principles of European jurisprudence; the Articles and the Protocols themselves; and areas where potential breaches may occur.

Chapter

This chapter provides an introduction to the ways in which human rights law limits the actions of government and public authorities. It begins by setting out the salient features of the protection of rights under common law and then goes on to explain the reasons for the introduction of the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK domestic law. The remainder of the chapter provides an overview of how the mechanisms in the Human Rights Act 1998 apply in the sphere of public law. This includes considering how, under section 2, UK courts must take into account decisions of the European Court of Human Rights (ECtHR) when hearing cases under the Act; how, in seeking to make domestic legislation compatible with the ECHR, UK courts have a far-reaching power of interpretation under section 3; how, if they are unable to interpret primary legislation in a manner that is compatible with the ECHR, the courts may make a declaration of incompatibility between the domestic legislation and the ECHR (at which stage it is a matter for Parliament to decide whether to change the legislation); and also how the Act applies to public authorities under the section 6. There is also reference to the Charter of Fundamental Rights of the European Union. Taken as a whole the chapter provides an assessment of the far-reaching impact of the Human Rights Act on domestic law and judicial review in particular.