Examiners' Reports 2021: LA3005 Jurisprudence and Legal Theory - Zone A

Examiners’ reports 2021
LA3005 Jurisprudence and legal theory – Zone A
Introduction
Jurisprudence is assessed by an essay-based examination. One can
distinguish between the idea of the ‘right answer’ and the excellent, first-class
answer. Unlike, say, examinations in the physical sciences or engineering
where there may be the correct or right formula or exact specification of
materials involved, there is no precise ‘right answer’ in jurisprudence.
Instead, an excellent answer in jurisprudence involves the quality of the
argument, the control over language that the candidate demonstrates and the
structure of the answer. Does it identify the key words and point of the
question? Is the material contained in an argument that is directed at those
key words and point? Is the student voice consistent? In other words, does
the phrasing and language of the answer satisfy the examiners that it is the
candidate that is in control of the answer.
This is the second year of examinations conducted whereby the examination
paper was made available online (via the VLE) at a specific time to be
downloaded and answered at home and then uploaded within the permitted
time: on this occasion five hours. Students should consider the effect on
examiners marking typed answers:
• The answers are much easier to read, which has the effect of magnifying
issues with the structure of answers. For example, some answers appeared
pre-planned and barely addressed the precise words of the question asked.
This was most apparent when there was no introduction setting out how the
candidate intended to address the question.
• Reading a typed answer makes apparent mistakes in English and spelling
mistakes, including those of key writers, glaringly obvious. Note: it is
Dworkin not Dworking, and it is Kelsen, not Kelson, and so forth. The
examiners must question the command of the candidate and ownership of
the answer if the candidate cannot spell the name of the writer discussed
correctly, even when the question has the correct spelling.
Presentation is important. And the wrong presentation harms the answer. For
example:
• Several went (well) beyond the word limits.
• A number of answers had sections with different type faces indicating cut
and pasted material, either notes or pre-planned answer material.
• Note: there is nothing wrong with preparing material for your answers.
Properly referenced quotations from key writers are good and expected, as
are properly referenced opinions of other academic commentators. The key
element is to ensure that they are part of an argument addressed to the
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words and points of the actual question asked. You should explain in an
introduction how you interpret those words and points so that the examiner
knows what angle you have taken to answer the question.
Comments on specific questions

PART A (The set case) (Redacted - full version available after October 2021 examinations)
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PART B
Question 4
‘Dworkin does not adequately distinguish between principles and policies.
His theory of adjudication fails to realise that judges regularly decide cases
on the basis of policy.’
Discuss.
General remarks
Answers needed to concentrate on Dworkin’s theory on principles and policies and
explain which position would be favoured.
Law cases, reports and other references the examiners would expect you to use
Module guide materials in the chapters on Dworkin.
Common errors
Answers tended to set out Dworkin’s theory in general. We need a focus on
principles and policies and Dworkin’s theory of adjudication.
A good answer to this question would…
have strong references to the primary and secondary materials; explain clearly how
Dworkin engaged in these debates with Hart and realists; set out the arguments
and write eloquently.
Poor answers to this question…
set out what they knew about Dworkin, sometimes inaccurately, sometimes with
mistakes even as to the spelling of his name throughout.
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Question 5
Critically evaluate the position that in times of crisis we need agreement on
basic values relating to natural law which the law cannot be allowed to
endanger.
General remarks
Natural law in times of crisis is the focus of this question. It sought to elicit good
discussions as to the need for agreement on basic values in those times. Why
might they be important? What might they include? Is there common agreement on
what is the common good and what have natural law theorists said about these and
the role of law in maintaining or upholding or containing (elements of) them? In the
main body of the answer, you will deal with different viewpoints with thorough
consistency and good use of language.
Chapter 4 and 7 of the module guide on natural law.
Common errors
Many of those who answered this question wrote all they knew about natural law in
a descriptive way.
demonstrate knowledge of relevant materials and the main theorists of natural law
theory focused on the explicit question asked. They referenced primary and
secondary sources on this aspect of natural law.
generally discussed natural law theory without focusing on the question or failed to
refer to much of substance from natural law theorists.
Question 6
‘Law plays a vital role in maintaining a balance of competing personal interests
and rights.’
Discuss with reference to liberalism and the law.
General remarks
The key to answering this question well is to show a sophisticated analysis of
relevant materials. It is a general question so it is even more crucial to set out
clearly in an introduction how the question will be approached, how it has been
answered and why, and using what structure. Generic stock answers are
unimpressive.
Relevant materials from Chapter 12 of the module guide.
Common errors
It was a common error to only focus on elements of the Hart–Devlin debate.
clearly engage with the question asked; have an excellent structure and strong
distinctive analytical voice; clearly linking liberalism with balancing individual, other
individuals, community, and societal interests, including in pluralist societies and the
role of the state in implementing a form of the good life for its citizens.
reproduced stock answers that sounded formulaic, lacked originality and any sound
of the candidate’s own voice.
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Question 7
Critically evaluate the radical feminist claim that the source of women’s
oppression is systemic and structural.
General remarks
Although the question referred to radical feminist claims, candidates could analyse
other genres of feminist thought in law and ought to set their analysis in the broader
context of a variety of feminist approaches. There needs to be engagement with
arguments that law and the state is structurally and, as a system, oppressive
towards women, including clearly explaining what this means and what theorists
have said about this.
Chapter 13 of the module guide on feminist legal theory.
Common errors
Common errors included writing too generally about feminism rather than linking
popular feminism in journalism, etc. to substantive legal texts referenced in the
module guide.
clearly engage with, and answer, the specific question asked, application to
examples from the recent past and current affairs enriched many answers when
credible source materials from the module guide materials were interconnected to
these.
set out a very general description of some aspects of feminism or women’s
oppression.
Question 8
‘Austin was right. Law is best defined as the command of the sovereign.’
Discuss with particular focus on the work of Austin.
General remarks
This could be seen as a rather provocatively worded question. It overturns the
normally accepted narrative whereby Hart has corrected Austin and swept away the
narrowness of the command theory. This demands you make a response: yes, you
agree with the quote, or no, you disagree. Surprisingly few took the quote on
directly; for many it simply was the opportunity to produce their Austin answer. Yet,
as we look at the experiences of many, many people in the world over the last 20
years a key issue has been the centrality of power and authority; where it resides
and for whom does it reside is crucial. For many people, the state has lost authority,
and yet, in diverse countries around the world, authoritarianism is on the rise and
with it a seeming acceptance by many people that they prefer a strong leader, or a
strong leadership, that simply commands. The beauty of Austin’s theory is its
relative simplicity. The complexity of it is that the simplicity was just the first step,
clear away confusion as to the source of law, and then get on with the complicated
task of working out policy and creating laws that will achieve those policies.
Creating the conditions whereby one can see clearly was simply a prerequisite to
getting on to the task of devising rational government.
The material on Hobbes, Bentham and Austin in, and referenced in, the module
guide.
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Common errors
To grossly simplify.
Consider this student extract:
The idea of a sovereign in the heart of a legal system suggest a situation of
subjecting people to laws they mostly do not know, understand or like. The
early works of Hobbes determines the law as a set of commands where
people are told what to do and what not to do and the only reason being that
it is the will of the sovereign. This presents the admission by Hobbes that a
legal system constitute a sovereign, whether in the form of a person or
system whose actions and instructions informs legal activities in a given
society without questioning and disobedience invite sanction…
This is inaccurate. From Hobbes onwards, the positivist approach seeks clarity and
objectivity in order to understand what we might call the big picture; the approach
also demands that the laws be rational and their reason be understood by the
people. Hobbes places the sovereign under the supreme duty of the social
protection of the people. Hobbes’ political philosophy was intended to bring a
realistic general understanding for the educated person. He introduced the ideas of
the social contract and his narrative of the natural condition of humankind was
intended to make all realise what was at stake in the task of governing. For
Bentham and Austin, the social rationality that should guide ‘command’ was utility.
Austin was clear that an educated populace was the greatest resource of a rational
government.
address what Austin was actually saying and what he was trying to do. Such an
answer would be clear as to the positivist distinction between the identification of
something as law and the identification of something as ‘good’ law.
demonstrated that the student was not in command of the content, often with
material that suggested institutional notes.
Student extracts and comments on extract:
This is a very good answer. There are clear references to primary and secondary
materials. Good analysis of these, directly related to the question:
The question is clear: law is best defined as the command of the sovereign.
What is law?
The law is a manifestation of power. Simply put, law under John Austin’s
interpretation of law is ‘A rule laid down for the guidance of an intelligent
being by an intelligent being having power over him’ (Province of
Jurisprudence Determined in 1932).
There is no universal definition of law, perhaps that is impossible, but under
the Austinian framework law is merely a command of the sovereign enforced
through the threat of sanctions, with no necessary element of morality/the
divine in it. Simple. Then Austin discovered a source of his own utilitarian
ethics in the writings of John Locke and William Paley, which he used to
interpret his law and decide whether specific laws were good or bad.
To identify law as law, Austin's legal positivism ideology incorporates three
essential elements firstly, the command, secondly, the sovereign, and thirdly
that which is reinforced by sanctions.
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It is built on the principles provided by Hobbes and afterwards by Jeremy

Bentham, both of whom attempted to establish a link between the subject (a
layman) and the law-making authorities.
Austin progressed his own ‘command theory’; through exhaustion of his
mentor’s original technique of exposition by logical analysis. Which as per
Austin, encompasses three things: a desire concerning someone behaviour;
an expression of that desire; and a sanction, threatened harm for non-
compliance.
He maintains that there is a natural causal link between the sovereign and
the asserted rule; given that the law is based on the sovereign's directives,
since the sovereign persists to be an omnipotent entity with the power to
enact laws.
Austin envisioned a sovereign as an insurmountable entity, in his writings.
According to the command theory, the sovereign cultivates a culture of
obedience among its subjects. By the work of both Hobbes and Bentham;
Sovereignty is essential to the effectiveness of law…
Question 9
‘If judges have to engage in all-out moral reasoning in hard cases, then law
does not really exist.’
Discuss with reference to Raz’s work.
General remarks
This was not an easy question and students needed to show knowledge of difficult
legal theory in Raz’s work and to specifically focus it on the question asked. It
involved explaining what Raz’s positivism entails, particularly regarding authority
and justification, practical reason and the role of moral arguments in legal decision-
making.
Chapter 8 of the module guide on Raz.
Common errors
It was common to read stock answers on Raz’s theory in general.
subtly engage with the question while drawing on the materials in the module guide,
good use of primary and secondary source materials and show originality.
were brief, lacking in understanding Raz’s theory.
Question 10
‘Marx’s view of the relationship between law and economics was too
deterministic to be useful and applicable to modern legal systems.’
Discuss.
General remarks
This required knowledge to be conveyed to examiners of Marx’s theory of law and
secondary sources as per the module guide. We wanted to see evidence of
students’ knowledge of these materials and their ability to argue its usefulness and
applicability today in modern legal systems. What is Marx’s relationship between
law and economics? What does ‘too deterministic’ mean? Students needed to
express whether they agree or disagree with the statement, while setting out the
different perspectives in the main body of the essay.
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Chapter 11 of the module guide on Marx, Marxism and Marxist legal theory and
related materials mentioned in that.
Common errors
Some answers tended to write all they thought they knew about Marx.
engage analytically with all the relevant materials using a clear structure to answer
the specific question.
inaccurately portrayed Marx’s theory, were too brief, or descriptive.
Question 11
‘Kelsen’s theory of law is useful as a way of legitimating what legal scholars
do. Other than that, it is of little help in making sense of law in the modern
world.’
Discuss.
General remarks
What a thought-provoking question: if rational reconstruction of the empirically
observed world is at the basis of Kelsen’s methodology, then who is interested in
doing that? Perhaps, in normal or peaceful conditions, only the legal academic and
then the legal practitioners working with a case to go to court. The question is highly
provocative. Is Kelsen’s work really a case of internal navel-gazing by legal scholars
and of no real use in making sense of the world?
This question brought out a lot of confusion, many answers had sections that
contradicted themselves (see student extract below). In part, this may be because a
lot of the material that appears on student orientation websites misrepresent
Kelsen. It is not uncommon to find, for example, claims that the grundnorm is the
constitution, or that ‘the term “grundnorm” is commonly used to describe a country's
constitution’ or that Kelsen’s legal order is a set of regulations that impose
sanctions. All of this undermines the central theoretical distinction Kelsen makes
between the world of ‘facts’ and the world of ‘norms’. People engage in social
interactions but coercion by officials of the state is only ‘legal’ when it is legitimated,
when there is a pattern of interpretation that shows that it ‘ought’ or ‘ought not’ to
have been applied.
Materials in Chapter 9 of the module guide. Also, wider materials that are open to
the candidate’s interpretation. Unfortunately, too many times, the Pakistan cases in
which Kelsen had been used were referred to without adequately incorporating
them into a substantive argument.
Common errors
The most common fault was to present a pre-planned Kelsen answer.
Disappointingly, many candidates appeared to misread the question or ignore it
completely. Other answers presented material that showed the existence of corrupt
or ‘evil’ regimes and then stated, that ‘it can be seen clearly that Kelsen’s theory
does not actually work in modern society. The existence of undemocratic and
oppressive states is the evident example of this.’ This is inaccurate. Kelsen
provides a way of distinguishing legitimate and illegitimate uses of power. The
tyrant who seizes power and with the aid of the military engages in a dictatorship
may be using the instruments of state power in a wholly coercive manner but
Kelsen’s theory can be used to show this not legitimate. A few answers mentioned
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the Nazi order as if it were some lawless place. However, Hitler became Chancellor
in accordance with the Constitution and technically the Weimar Constitution was
never annulled by the Nazis. Instead, Hitler ruled through emergency powers
granted by the Enabling Act.
address the question head on. Some did do this and asked: what is the role of legal
scholarship? Surely, the role of legal scholarship is to make sense of law in the
world in its very situations and meanings? The argument then is that Kelsen
provides an extremely perceptive and rigorous attempt to demarcate and clarify
what law is.
simply reproduced a ‘here is what I know about Kelsen’ answer (often referring to
him as Kelson).
Student extracts and comments on extracts:
Hans Kelsen’s theoretical framework is meant for the ultimate furthering of
the ‘basic norm’ which in his words ‘must be presupposed, because it cannot
be posited.’ The responsibility of presupposing falls largely on legal
academics, jurists and in some situations, even the general public. Thus,
through an appreciation of the distinctive fashion in which Kelsen puts forth
his theory, this essay will measure the degree to which the modern-day legal
systems are conceivably valid or efficacious through Kelsen’s viewpoint.
In an abstract analysis of how a legal system works, Kelsen draws out a
normative order theory which to him is ‘pure’ since it is devoid of ideology and
morality in such a manner that his idea of ‘legal norm’ remains unaffected.
The flaw, in Kelsen's opinion, seemed to be that in their research of the legal
nature, theorists presupposed the nature of law from the onset, oblivious to
the fact that ‘it is a science and not a politics of law.’
The pure science made officials of the legal order its true subjects, who are
directed by a legal rule or a ‘norm’ to uphold the law through coercion. To be
precise, an official ought to apply sanctions for the maintenance of order
when a citizen commits a ‘delict’ i.e. an infraction of a law...
That upholding laws through coercion ought to be done on the basis of the
constitution is a grundnorm with malleable applicability across the globe. It is
true that all norms deriving validity from the grundnorm do not in turn validate
it, but Kelsen counters this by stating that the grundnorm is straightforwardly,
an assumption routinely taken by jurists, legal scientists and even the general
public. As Salmond notes ‘There must be found in every legal system certain
ultimate principles from which all others are derived, but which are
themselves self-existent.’
It logically follows that the validity of any legal provision can be traced. Here,
Kelsen appeals to extremes by applying the reductio ad absurdum approach
to contest that one cannot realize the validity of a law … without
presupposing category of the basic norm which is the constitution. An
individual is not required to assume on the basis of ‘experience’ or his
‘morality’, since the grundnorm is independent of both and is therefore a
transcendental presupposition which in turn is evidence of Kelsen’s theory
subsisting on neo-Kantian philosophy.
Comment: It contradicts itself in the end. It appears at first sight as if it might be a
very good answer, there is also a good quotation from Salmond. But then the
candidate has a paragraph in which they state ‘the basic norm which is the
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constitution’. But the basic norm is not the constitution, or the historically first
constitution, as they are material substance, they are acts of humans. The basic
norm is the presupposition that the constitution ought to be respected. To quote
from another student’s work:
A norm being a meaningful substance cannot arise from a fact which is
meaningless it ought to arise from another norm. All legal norms in a system
will be based on the constitution but the constitution is a historical fact. Thus,
if all norms arise from the constitution, then Kelsen’s theory will be
contradicting itself. However, according to Kelsen the basic or primary norm
is one ought to follow the constitution. This norm is at the same time the most
supreme and basic norm it is also called the grundnorm. The grundnorm is a
legal fiction and must be pre-supposed by the officials in order for the legal
system to be understood as intact. Failure to presuppose the grundnorm will
tear apart the legal system.
Question 12
‘Hart’s fable as to how law emerges from ‘primitive legal systems’ is a
delightful and thoughtful experiment, but it has little to do with historical
reality. Hart therefore failed his own method of ‘descriptive sociology’.’
Discuss.
General remarks
Another provocative question, it invites strong responses.
Chapter 5, 6 and 7 of the module guide.
Common errors
This was not answered by many, most that did it recognised the challenge.
attempt to link together the desire of Hart to give a story of law’s development and
then Hart’s main theory (this is also a comment on the extracted excellent answer
below).
simply ignored the question posed and used it as an opportunity to try to insert
another Hart answer that was pre-prepared.
Student extract
The essay prompt suggests that because Hart’s position of a primitive legal
society has little historical truth to the way law develops, Hart has been
unable to provide his account of law as a descriptive sociologist (The
Concept of Law, Preface). This essay will seek to show how that statement is
untenable considering Hart’s painstaking and searching analysis of the
nature of law and how it can be said to be evidenced in practice.
Hart’s position of a primitive legal society was meant to prove his thesis that
the central case of law is the union of primary and secondary rules. To this
end, Hart speaks of primitive communities in Chapter 5 of the Concept, i.e.
communities which are only governed by primary rules (1961: 91). Such
communities must also satisfy certain conditions: based on Hart’s truisms
about human nature, primitive communities must have some rules prohibiting
violence, deception, and theft. Secondly, although such a society may
inevitably include a group that does not obey the rules, a majority of the
population must obey the set of primary rules that govern the community...
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Comments on extract
See comments in ‘a good answer would…’ above.
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LA3005 Jurisprudence and legal theory – Zone A

Comments on specific questions

It is built on the principles provided by Hobbes and afterwards by Jeremy

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