Examiner’s report. May exam Jurisprudence 6021.

The exam is divided into two parts, with Part One addressing the topics lectured in the Autumn
term, and Part two covering the subjects lectured in the Spring. This examination took place after a
strike had interrupted teaching from the middle of the Spring term. Only three of the second term
topics were lectured in full (the subject of Questions 12, 14 and 10). To compensate, the students
were asked to complete three questions instead of the usual 4. They had to tackle at least one
question from Part One and one from Part Two. The third question could be chosen from either Part.
In the exam, a large number of students chose to answer q12, on State Crime and Genocide, which
had been the first topic lectured in the Spring term. 126 students (out of 217) tackled this question.
The next most popular question was question 2, tackled by 116 students. Counting alternatives
within questions, there were a total of 26 questions to choose from.

Part One

Question 1.

‘Classical natural law theorists sought to show how law might be just. They never claimed that all
laws were just’.

Explain and discuss

49 answers.

A fairly straightforward question. Students typically showed that they knew the common features of
classical natural law (universal, based on reason, adapted to local conditions, higher than human
law) as well as the various ways in which different philosophers have described it– Plato, Cicero,
Aristotle and Aquinas. The second part of the question was generally tackled well, with students
pointing to the elements in each of the theories that identified law with justice, and thus supported
the proposition, as well as those that recognised the aspirational nature of natural law, which meant
that any system, however just, could not be justice (Plato was typically cited for this). Aquinas was
included in almost all answers, with his statement on unjust laws as corruptions of law, his
categories of unjust law, and his views on the obligation placed on conscience in the presence of
unjust laws.

Question 2.

‘The weakness of Austin’s theory lies not in his claim that all laws, properly so called, take the form
of commands, but in his insistence that all laws issue from a legally unlimited sovereign’.

Discuss.

116 answers

Another fairly straight forward question which invited students to introduce the command theory,
Hart’s criticisms of it (both those directed to all laws as commands and those addressed to problems
of accounting for law’s existence by reference to a legally unlimited sovereign). Better answers
included the possible defences to these criticism, as set out by Cotterrell and Schauer, and those
found within Austin’s lectures.
Question 3a.

A rule of recognition removes the need for legal rules to be accepted, or accompanied by serious
social pressure’.

Discuss.

11 answers.

Students interpret this in different ways. Some treated the question simply as an invitation to
discuss the attitude of officials and lay persons (in terms of acceptance and social pressure) to the
rule of recognition and the rules identified by it (duty and power conferring rules). These answers
typically included Finnis’s arguments from focal meaning – claiming that officials would have a moral
attitude towards the rule of recognition; and MacComick’s identification of volitional and cognitive
attitudes to legal rules. Some students included Hart’s own description of the pre-legal world, where
law was identified through consensus and serious social pressure, and considered how these
features were altered by the union of primary and secondary rules.

Question 3b.

Law is less like chess and more like religion. At the basis of law are moral commitments, and not
arbitrary conventions’.

Discuss by reference to Hart’s theory of law.

18 answers.

This question was a variant of question 3a, which again invited a discussion of the nature of the
internal attitude towards law, and whether this constituted a moral attitude or not. Some of the
better answers made something of the last part of the question, ‘arbitrary conventions’ ,
interpreting this as a reference to the practice basis of the rule of recognition, and using Dworkin to
discuss whether it could be a social fact –the outcome of official practices.

Question 3C.

Hart’s distinction between primary and secondary rules offers an inadequate theory of law’s
structure’.

Discuss

14 answers.

Typical answers commenced by noting Hart’s criticisms of Austin’s inadequacies (in brief) and then
proceeded to consider whether Hart’s own theory was a better account of how law is experienced, a
sufficiently complete description of the varieties of law or the manner in which law is identified, or
coherent. The theorist most frequently used to support claims of Hart’s inadequacies was again
Dworkin (principles not included, rule of recognition unable to account for the identification of law
etc.).

Question 4a.

The inner morality of law is not aspirational, or moral, or helpful in deciding what is legal’.
Discuss.

30 Answers.

A straight forward question inviting students to present Fuller’s theory in full. Students were
expected to cover all three parts of the question- the nature of aspiration and its contrast with the
morality of duty; whether the inner morality of law contributes to the substantive morality of law or
provides alternative values (fairness, freedom, or agency); and whether degrees of compliance with
the 8 conditions marks a spectrum with systems that comply more being more legal than those
which comply less.

Question 4b.

‘The difference between Hart’s and Finnis’ versions of natural law is not so much a question of what
goods are offered, as to whom they are offered’.

Discuss.

1 Answer.

This question required students to present Finnis’ view that the focal meaning of law includes a
commitment to achieving the 7 basic goods, and Hart’s minimum content of law (the need for some
mutual forbearance etc.). The second part of the question invited a recognition that Hart did not
require his minimum conditions (and by implication natural law arguments on the conditions for
peaceful co-existence or human flourishing) to be extended to all members of the community, whilst
Finnis does.

Question 4c.

‘Finnis’ natural law theory conflicts with the character of modern societies, characterised as they are
by plurality of values and beliefs. As such, his theory is of limited value in the contemporary age’.

Discuss.

2 Answers.

This was a challenging question, requiring students to consider whether Finnis’ attempt to reduce all
human values to 7 basic goods succeeds as a generalisation of practices considered good within all
communities in the modern world, or not.

Question 5.a

‘Without Kelsen’s theory, we could not articulate the difference between a group of people in a
room raising their hands and a Parliament legislating. In its basics, Kelsen’s theory is indispensable to
making sense of law.’

Discuss

11 Answers.

This question required student to present Kelsen’s desire to identify the conditions that make legal
cognition possible – how one can have a common understanding of what law exists in a manner
similar to how science enables us to have an objective knowledge of our physical world. Most
students were able to present the elements – imputation; dynamic norms which authorised the
creation of further norms; the presupposed basic norm which, like fundamental assumptions in
science, makes this form of cognition possible; the nature and importance of primary norms; and the
condition of effectiveness. Most students were also careful to include a discussion of the example
provided in the question, contrasting the subjective meaning of such action with its objective legal
meaning, and the scheme of interpretation which, according to Kelsen, makes this objective
meaning possible.

Question 5b

‘Law has its effects, and its causes, but within these relationships the actual law takes the form of
norms identified through their relationship with other norms’.

Is this statement correct, and if so, does it tell us anything about law that is significant?

5 answers.

The question invited students to consider the difference between explaining law within social
science, which, like science generally, constructs relationships in terms of causes and effects, and
identifying law as an object, separate from what causes it, or what effects it causes. The relevant
parts of Kelsen’s theory are the same as for 5a. The last part of the question invited an evaluation of
whether it is important to identify law as a separate object (a common endeavour of all legal
positivists); and whether Kelsen’s own attempt, alone, or as a precursor to social science enquiries,
offers a significant assistance to legal analysis.

Question 6.

36 answers

A lawyer who adopted the methods and attitudes of the US Realists, would be a better lawyer than
one who attempted to understand law as a gapless system of rules’.

Discuss.

Students typically addressed this question using Cotterrell, Dworkin and Hart. Cotterrell was used to
present the different approaches to rules within the Realist movement: policy science, radical rule
sceptics and constructive doctrinal. Students also introduced Frank’s fact scepticism to show that
the realisms behavioural and procedural analysis could also be applied to the fact finding process.
Hart was used to show the incoherence of total rule scepticism, and the importance of judicial
commitments in the penumbra cases. Students generally observed that his claim of incoherence did
not apply to constructive doctrinal approaches, where the importance of rules was an empirical
question (with Leiter being commonly cited to support this). Dworkin was introduced for his attack
on Realists (and Crits) for their attempt to reduce all legal decisions to policy questions, in contrast
to his own view that legal reasoning, and decisions, were produced through the interpretation of
rules and principles, with judges having only weak discretion. Student also drew on the views of
Holmes, and Llewellyn’s view of the factors that informed judicial decisions.

The question required students to include an evaluative element – whether a practicing lawyer who
adopted any of the three approaches identified by Cotterrell would be a worse lawyer than a
formalist, who approach law as a gapless system. Some noted that Dworkin’s position is an example
of formalism, particularly with his ‘Right Answer’ thesis. Most students identified constructive
doctrinal approaches as the preferred method for practising lawyers.
Question 7a.

‘Dworkin’s early critique of positivism and realism fails. His distinction between rules and principles
is unclear, and his distinction between policies and principles is unrealistic’.

Discuss.

18 answers.

Students generally answered this question well. They articulated Dworkin’s claimed distinction
between rules and principles, and policies and principles; drew on Raz to question the clarity of the
distinction between rules and principles, and drew on Greenawalt to discuss whether judges were
able or willing to avoid considering policy when deciding cases.

Question 7b.

Dworkin’s account of how Hercules decides hard cases shows just how hopelessly romantic his
account is. Real judges do not and should not interpret law according to law as integrity ’

Discuss

3 answers

The question required students to set out Dworkin’s theory of law as integrity, and assess if this is
either an accurate presentation of judicial reasoning or a desirable way for decisions to be made. It
was in interpreted as an invitation to consider whether the dimensions of fit and value placed
substantial limitations on judicial decision making, which allowed students to introduce the
criticisms of Law as Integrity set out in Penner, Schiff and Nobles. The normative question (‘should
not’) could be answered by drawing on Dworkin’s view of the undemocratic and retrospective
nature of judicial law making, and Greenawalt’s counter arguments: that it has to retrospective, that
where law is unclear this does not remove established rights, and that legal issues are not always
best left to legislatures to resolve, even when they involve policy questions.

Question 8. A

For Law to be possible, Judges must prioritise respect for authority over concerns with coherence’.

Discuss by reference to Raz’s legal theory.

No student attempted this question.

Question 8b.

‘MacCormick takes the European Union as a legal order seriously.’

Explain how MacCormick does this and whether you agree with his analysis of the relations between
EU law, Member state law and public international law.

4 answers

The key text for this question was MacCormick’s MLR article with its analysis of sovereignty within
the EU, which develops Hart’s concept of a Rule of Recognition to suggest that legal pluralism could
take the form of compatible or even identical rules, identified by different Rules of Recognition,
without the issue of ultimate supremacy or the location of sovereignty needing to be addressed.
Students who tackled this tended to ultimately reach this issue, though some felt the need to
present a summary of all of MacCormicks theoretical views along the way.
Question 9A

‘The claim that law simply “mirrors” society is fundamentally misconceived’.

Discuss this statement drawing on all, some, or one of the following:

Marx, Durkheim, Weber and Luhmann.

16 answers

Students who answered this question focussed on one or both of Marx and Durkheim, forgoing the
opportunity to offer the contrasting views of Weber and Luhmann.

Students who discussed Durkheim were generally able to address the ‘mirror’ issue of whether law is
a reflection of more fundamental social structures – offering a summary of the Division of Labour
thesis, and the criticisms that have been made of it (as provided in Penner Schiff and Nobles).

Discussions of Marx were more mixed. Students interpreted the question to require an assessment
of whether law reflected the interests of all members of society (and drawing on the instrumental
approach to argue that it did not, but advanced the interests of the ruling class) or was determined
by the relations of production (the structuralist and humanist versions of Marxism).

Question 9b.

’ Durkheim offered a too simplistic account of the evolution of law. Modern law is in fact much more
repressive than restitutive. As a result, Durkheim simply misunderstood modern law’.

Discuss.

18 answers

Those who answered this question generally presented the same material as those who answered
on Durkheim alone in the previous question.

Part Two

Question 10a.

Is multiculturalism bad for women? Illustrate your answer by reference to specific legal examples.
(Examples may include feminist judgments as well as actual laws and/or judgments.)

39 Answers.

Students were expected to define both multiculturalism and intersectionality, ideally at the start of
the essay. They were also expected to know the feminist criticisms of multi-culturalism offered by
Okin et al, as well as the dangers of essentialism and neo-colonialism presented by taking a feminist
approach which ignored cultural differences. The cases that had been given in the required readings
offered an opportunity for students to show that they understood these definitions and issues by
identifying how they arose on the facts of the cases and within the reasoning of the judges.

10b
Apply a gender or intersectional analysis to any of the other topics you have studied in Jurisprudence
this year.

7 answers.

This was an open question. Feminism could be used to supplement Realism, or to criticise claims to
objectivity and neutrality in Positivism, Natural Law and Dworkin’s theory of law as integrity. For
example, one student who answered this question represented Marxism in Feminist theory terms:
patriarchy as the oppression of one gender by another, which gives rise to an objective ideology
which includes the idea of law as a neutral and objective institution. This is a valid approach (indeed
it is the basis of Catherine Mackinnon’s theory).

Question 11a.

‘Protest beyond the law is not a departure from democracy. It is absolutely essential to a healthy
form of democracy.’

Discuss.

14 answers.

Students presented Raz and Rawls’ theories of civil disobedience and contrasted their respective
definitions. The question required students to maintain a focus on the relationship between CD and
democracy. Students tended to assume that Raz’s distinction between liberal and illiberal societies
was a distinction between democratic and non-democratic ones and answered accordingly. Students
drew on Rawls to argue that one should allow CD even in conditions of democracy where there was
an infringement of the principles of justice.

Question 11b.

‘Our moral autonomy as human agents means that we can never “outsource” to another (in a sense
that divests us of the ultimate responsibility) the decision how we should act. Raz’s pre-emption
thesis is, therefore, false’.

2 answers.

The question invited a discussion of Wolf’s theory that authority (as defined by Raz) is incompatible
with an individual’s moral agency.

Question 12.

What is problematic about the definition of genocide in international law, and how does it differ
from Lemkin’s original formulation?

126 answers.

Whist this question was answered very well by many students, a large number of students mis-read
it as an invitation to contrast the sociological and legal definitions of genocide (which had been the
question set during the term). Whilst the first part of the question allowed students to introduce the
sociological approach as a critique of the legal definition, they were expected to show some detail in
their knowledge of the terms of the convention, as well as some detail in their knowledge of
Lemkin’s original formulation (and how these two differed). Students who could not demonstrate
any detailed knowledge of these two did not do well.
Question 13

‘Ruti Teitel claims that ‘humanity rights’ are ‘emergent’ but ‘not yet consolidated’. To assert this is
not to do history; instead, it is a mode of a-historicist legal rationalisation.’

Discuss.

1 answer

Students were required to show that they understood Teitel’s claims, and to subject them to the
analysis of historicism presented by Gordon.

Question 14A.

The question of whether Germany had law from 1933-45 is best answered by considering the views
of contemporary practising German lawyers, German legal theorists, and the German people’.

Discuss.

49 answers

The question was phrased to allow students to show that they understood Fraser’s continuity thesis,
including his use of Fish’s idea of an interpretive community (the community in this case being
German Lawyers and the German people) and, in the case of Judges, Hart’s rule of recognition.
Fuller, Radbruch (a contemporary German legal theorist) and Rundle were offered as counter-
arguments to Fraser’s thesis. Lepius’ chapter was used to show that there was actually a
discontinuity acknowledge by German legal theorists writing at the time.

Question 14B

29 answers.

‘The example of Germany, 1933-45, shows us that law can be discriminatory, but not
exterminatory’.

Explain and discuss this statement.

This question required students to focus on Rundle’s argument that law cannot be exterminatory, as
it has to respect human moral agency in order to be law. Candidates contrasted the discriminatory
Nuremberg laws, and the maintenance of more normal legal relations between the state and the
non-Jewish Germans, with the terror and extermination program applied to the Jews after
Kristallnacht. Counter arguments to the essay proposition drew on Hart (to suggest that even
extermination might be law, since the Hart’s minimum content of Natural Law does not have to be
extended to all humans within a jurisdiction) and Radbruch (to argue that it could be neither
discriminatory nor exterminatory). Rundle’s arguments could be supplemented by Fuller by, for
example, pointing out that the secrecy surrounding the extermination could be seen to support
Fuller’s claim that evil regimes would tend to breach his 8 conditions.

Question 15

Critically assess the ability of systems theory to inform our understanding of two or more of the
following:

I )Human rights.
ii) Constitutions

iii) Miscarriages of Justice

iv) Jurisprudence.

3 answers.

This was a straight forward question, directed towards a complex theory. As such, students were
given high marks for a clear and coherent presentation of the theory itself, and two or more of its
applications. Human Rights are explained by Luhmann in terms of functional differentiation.
Constitutions can be analysed as the structural coupling of Law and Politics, with Politics being
recoded (secondary coding) by law. Miscarriages of Justice represent a structural coupling
(Luhmann) and a productive misreading (Teubner) by the mass media of convictions. Jurisprudence
itself can be analysed using Luhmann’s concept of Self-description. Legal reasoning (legal argument)
can be analysed by drawing on his view of humans as psychic systems that have to structurally
couple with sub-systems and are constrained by the possibilities of system communication; and his
view of the communication of time which organises legal versus political operations.