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Jurisprudence Summary - Lecture notes
Jurisprudence: Theories of Law (University of South Australia)
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Introduction to Jurisprudence / Utilitarianism
What is Jurisprudence?
Theory of Law – Attempt to understand legal structures.
Requires philosophical enquiries
Why do we obey the law?
Retribution – fear of punishment – safety?
Normative aspect
Law is a ‘normative’ social practice; seeks to guide human behaviour.
Has the ability to guide and regulate behaviour, as does morality, religion etc.
VALUES as opposed to facts. Cannot be proven in the same way that facts can; what ought to be
done; what should be done.
Natural Law
There are certain, universal laws in nature that bind all of us; they are the foundation of all human-
based laws. Connection to a divine hand.
Natural lawyers argue that natural law is based on our own faculties; our own reason –
based on our rights.
o Connection b/w law and morality is high.
Positivism
Law posited on us; there is no connection between morality and law, it has everything to do with
imperialism; authority (sovereign etc) tell us.
Reason – realism
Law is decided by Judges, due to the fact that lawyers have no authority to decide what the law is; it
is an instrument of political power.
Critical legal studies
Law cannot be objective and detached from morality.
Constructivist Theory
Amalgamation of natural law and positivism.
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Descriptive legal theory aims at explaining what the law is, why, and the consequences – concerned
with facts.
Normative legal theories focus on the question of what the law ought to be,
Critical law theory sees the law as biased, reactionary, inseparable from political and economic
power.
MORAL THEORY
Moral theory is the systematic endeavour to understand moral concepts – aims to account for terms
of right and wrong, identity which behaviours.
Normative in the sense that it tells you what to do.
Truck example into 1 person or 5 people.
First example: concerned with a consequence, killing 1 to save 5. Consequentialism; ‘an act is moral
if the consequence is a good result’.
Second example: deontological ethics; locating the morality of something in a particular event;
would go against.
UTILITARIANISM – Jeremy Bentham
‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is
for them alone to point out what we ought to do, as well as to determine what we shall do. On the
one hand the standard of right and wrong, on the other the chain of cause and effects, are fastened
to their throne. ‘
Central claim
The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle,
hold that actions are right in proportion as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness.”
THE GREATEST GOOD FOR THE GREATEST NUMBER
Hedonic Calculus
Intensity – how strong is the pleasure?
Duration – how long will the pleasure last?
Certainty or uncertainty
Propinquity/remoteness – how soon will it occur?
Fecundity – the probability that the action will be followed by sensations of the same kind.
Purity – probability that it will not be followed by sensations of the opposite kind.
Extent- how many people will be affected?
Downloaded by Yonkopa Amo ()
Jurisprudence Summary - Lecture notes
Jurisprudence: Theories of Law (University of South Australia)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Yonkopa Amo ()
, lOMoARcPSD|3407414
Introduction to Jurisprudence / Utilitarianism
What is Jurisprudence?
Theory of Law – Attempt to understand legal structures.
Requires philosophical enquiries
Why do we obey the law?
Retribution – fear of punishment – safety?
Normative aspect
Law is a ‘normative’ social practice; seeks to guide human behaviour.
Has the ability to guide and regulate behaviour, as does morality, religion etc.
VALUES as opposed to facts. Cannot be proven in the same way that facts can; what ought to be
done; what should be done.
Natural Law
There are certain, universal laws in nature that bind all of us; they are the foundation of all human-
based laws. Connection to a divine hand.
Natural lawyers argue that natural law is based on our own faculties; our own reason –
based on our rights.
o Connection b/w law and morality is high.
Positivism
Law posited on us; there is no connection between morality and law, it has everything to do with
imperialism; authority (sovereign etc) tell us.
Reason – realism
Law is decided by Judges, due to the fact that lawyers have no authority to decide what the law is; it
is an instrument of political power.
Critical legal studies
Law cannot be objective and detached from morality.
Constructivist Theory
Amalgamation of natural law and positivism.
Downloaded by Yonkopa Amo ()
, lOMoARcPSD|3407414
Descriptive legal theory aims at explaining what the law is, why, and the consequences – concerned
with facts.
Normative legal theories focus on the question of what the law ought to be,
Critical law theory sees the law as biased, reactionary, inseparable from political and economic
power.
MORAL THEORY
Moral theory is the systematic endeavour to understand moral concepts – aims to account for terms
of right and wrong, identity which behaviours.
Normative in the sense that it tells you what to do.
Truck example into 1 person or 5 people.
First example: concerned with a consequence, killing 1 to save 5. Consequentialism; ‘an act is moral
if the consequence is a good result’.
Second example: deontological ethics; locating the morality of something in a particular event;
would go against.
UTILITARIANISM – Jeremy Bentham
‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is
for them alone to point out what we ought to do, as well as to determine what we shall do. On the
one hand the standard of right and wrong, on the other the chain of cause and effects, are fastened
to their throne. ‘
Central claim
The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle,
hold that actions are right in proportion as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness.”
THE GREATEST GOOD FOR THE GREATEST NUMBER
Hedonic Calculus
Intensity – how strong is the pleasure?
Duration – how long will the pleasure last?
Certainty or uncertainty
Propinquity/remoteness – how soon will it occur?
Fecundity – the probability that the action will be followed by sensations of the same kind.
Purity – probability that it will not be followed by sensations of the opposite kind.
Extent- how many people will be affected?
Downloaded by Yonkopa Amo ()
