Legal Theory Autumn Term 2022-23

G. 72 Law and International Relations.

Prof. Victoria Roca

Week 2. Tuesday 20th and Friday 23rd of September

(*) Tuesday Legal Theory class suspended (it will be reprogramed)

Readings for Friday the 23rd of September

• Hart: Persistent Questions, in The Concept of Law.
• Wacks: « Law’s Roots », in Law : A Very Short Introduction, pages 1-35

Complementary : It will always be useful to follow the ideas on this texts and the class, to
read, chapter 2 in Atienza, El sentido del Derecho

Lesson 1 Paragraph 2 An Introduction to the History of Law in the Western World and
Legal Theory etc.

1) After a thorough reading of both materials, prepare an outline systematising all the
relevant information. Again, as you did with last week materials, notice that it will
help you to deeply understand the ideas in the materials to compose a
coherent/comprehensive outline combining (unifiying) the information addressed
in both. Further below you will find a list of questions that will help you to
identified the most important topics. Follow them while doing your first reading of
the materials. Also to check your level of knowledge on them.
2) Write down any doubts on the materials.

Guidelines. These questions below address the most relevant topics in the materials
assigned for September the 23rd class. They should help you through your materials and
to learn on the topics under Lesson 1. Paragraph 2.

1) Why is it challenging to give a definition of Law? What is it so controversial

about this social phenomenon?
2) What is Hart’s strategy? Which are the three recurrent issues when the
nature or essence of Law is under debate?
3) Why is it not plausible to reduce the nature of Law to mere commands
backed by the use of force?
4) Try to grasp the notion of normativity -or bounding force- of Law? In which
sense is it distinct to ethical normativity?
5) A way to approach the nature of Law is to grasp the notion of rule. However,
what is a rule? According to Hart, what is the difference between habits and
rules of behaviour? What is the difference between a descriptive pattern
 (descriptive rule; Law of Nature, give an example) and a normative pattern
(a prescriptive rule)?
6) Try to explain this statement: “The predictive aspect of the rule (though real
enough) is irrelevant for this purposes [for the judge, in punishing],
whereas its status as a guide and justification is essential”.
7) What is the difference between the internal and the external perspective on
a rule.
8) According to Hart, which is the best way to address the question on the
notion of Law?
9) What two legal traditions are part of the Western Legal Culture? Just
mention them (we will return to them in a question below) (see 17)
10) Reflect of this idea: “The Law is an imperfect yet indispensable vehicle by
which both to conserve and transform society”. Deeper understanding:
Relate it to ideas in chapter 1 Atienza, El sentido del Derecho, and Capella,
“El trabajo como dato prejurídico”.
11) Reflect on this idea: “Law cannot properly be understood without an
awareness of its social, political, moral and economic dimension. Legal
theory or jurisprudence seeks to uncover many of these deeper
philosophical elements”.
12)The doctrine of precedent is said to be a particularity of the Common Law
tradition. Do you understand what is it about? Here, we will state that the
normative force of precedent is connected to the very principle of equality
(universality), thus to understand the rational underlying this doctrine is
very important to understand legal thinking and methodology. Try to reflect
on these ideas.
13) Notice the characterization of Law in page 2-3 from chapter 1 (Wacks): the
Natural Lawyer approach and the positivist approach.
14) Try to give an account in some few lines on the genesis of Law (historical
approach; try to relate these new ideas with those learned in last week
materials) and on the distinctive features of the Western Legal Tradition.
15) Wacks highlights the notion of the rule of Law. Re-read carefully his
elaboration on this ideal and try to reflect on the difference between the
rule of Law and the rule of men.
16) Why do we say that the word Law is ambiguous? (think of the difference
between this ambiguity when considering the Spanish word for Law and
the English word for Law). Why do we say that the concept of Law is
ambiguous? Think of the difference between International Law and State
Law. (Reading Atienza’s chapter 2 in El sentido del Derecho will be helpful to
explore this ideas)
17) Characterize both: Common Law and Civil Law Traditions. Under which
Legal Tradition does our legal praxis fall?
18) Outline or make a basic map of other Legal Traditions.
19) Reflect on Learned Hand (American Judge) words: “I often wonder whether
we do not rest our hopes too much upon constitutions, upon laws and upon
courts. These are false hopes; believe these are false hopes. Liberty lies in
the hearts of men and women […] no law no court to save it”.
20) Reflect on Cicero (Roman Lawyer) sentence: “We are slaves of the Law, so
that we may be free”.
21) And again: Reflect on Hobbes characterization of the so called “natural
state” (page 21, Wacks).
22)What is the difference between Order and Justice according to Wack’s
elaboration?
23) After reading these pages on Order and Justice. Try to depict the notion of
Law as Ius and the notion of Law as Lex.
24) List, characterize and reflect on the sources of Law. Why do you think we
talk about sources?
25) What are the main methods for Statute interpretation?
26) Characterize the principle of stare decisis. What is the underlying value to
that principle?
27) Characterize the notions of ratio decidendi and obiter dicta.
28) Re-read Bentham (a notorious Legal Philosopher) words on the doctrine of
precedent. However, we will talk about to important elements on legal
methodology: distinguishing and overruling. Try to find online a
characterization of both.
29) A conception of Law as practical reasoning. Try to reflect what this
approach might imply. We will elaborate on it in class. [To read more:
Atienza’s El sentido del Derecho, chapter 9, paragraph El enfoque
argumentativo, and 10, paragraph La situación actual, El paradigma
constitucionalista, elaborate on this approach].