Notes Jurisprudence and Legal Theory
Part A
by Inji Kim
2019/2020
, Topic 1: Anarchy or Obligation?
A. Reading
● Wolff: The Conflict Between Authority and Autonomy
● Raz: The Obligation to Obey the Law
B. Lecture Notes
WHAT IS JURISPRUDENCE?
● helps to understand the trivium:
○ grammar (how to acquire, form concepts)
○ logics (how to relate them without entering fallacies)
○ rhetorics (how to communicate)
SOME BASIC TERMS
● philosophy is about making distinctions
● conceptual v empirical truth
○ conceptual: ex. circles are round (totality? circularity? uninformative?)
○ empirical: ex. this circle is blue (tends to be more important, adds
information)
● necessary v sufficient conditions
○ necessary: needed for a condition to happen
○ sufficient: by and itself enough to create a condition
○ can overlap
● validity v soundness
○ validity: logical structure is valid
○ sound: premise is true (inference can be valid but unsound if premise is false)
○ syllogism = three sentences (if premise true, conclusion must be true if valid;
if premise false, does not necessarily mean that conclusion is true)
○ interesting: falsity does not perpetuate itself in a syllogism, but truth does
● normative v factual statements (ought/is)
, ○ normative: ‘should’, standards made (if there is a mismatch, world would
need to change)
○ factual: statement to match world/situation (if there is a mismatch,
statement needs to change)
● morality v prudence (contentious distinction); distinction within normative field
○ morality: unconditional normative claims
○ prudence: claims conditional on some circumstances, depends on desires
and beliefs
○ Q: What kind of ‘oughts’ does the law create? conditional? moral?
○ Q: What is the relationship between both?
○ Q: What is the relationship between law and morality + prudence?
● differentia specifica v genus proximum (when defining something)
○ differentia specifica: distinguish the object from genus proximum
○ genus proximum: the closest kind to object
○ ex. chair - object to sit on + man-made (to distinguish from ex. rocks)
○ there can be over- and under-inclusive definitions
○ when encountering something that fits the definition but it is not meant to,
one can either further narrow definition or say that it is just included (such
decisions have to be made by the law constantly)
○ also regarding definitions:
■ try to think of counter-examples to test definition
■ Does it include false positives?
■ Does it exclude things it should not?
WHAT IS AUTHORITY?
● right to command
● right to be obeyed
● duty that people do something
● duty that people do something simply because they are told to do so (order needs
to be cause of action)
WHAT IS AUTONOMY?
● literally - ‘self-legislation’ (Kant)
● being and considering oneself as the author of one’s life
● taking ultimate responsibility for one’s actions, regarding oneself as last reference
, ● autonomous people are duty-bound to never do something simply because they
are told to do so
CONFLICT BETWEEN AUTHORITY AND AUTONOMY
● conceptual contradiction
● political anarchists: movement to get rid of domination and authority
● philosophical anarchists: claim that legitimate authority cannot exist
● solution?
SOLUTIONS
● accepting soundness of argument (premises true, argument valid = admitting there
is a conflict)
● giving up autonomy or authority (partially) after accepting tragic conflict of duties
● attacking soundness of argument
○ attacking premise of anarchist that autonomy is only source of legitimacy
○ ex. moral autonomy is not our primary or fundamental obligation
○ pushing against the argument: autonomy as a capacity that needs to be
developed before it can be exercised; various kinds of authority making this
development possible; authority and autonomy thus cannot be
incompatible (Kant: we must emerge from our immaturity)
○ assuming that the anarchist argument is true and demonstrating that it is
absurd: Wolff’s argument proves too much - ex. it also makes promising and
entering into Ks impossible (as you put yourself under the authority of your
past self, obeying your past self, when you fulfil a promise)
CLASSICAL IDEAS ABOUT AUTHORITY
● voluntarist theories
○ consent
■ authority involves will/autonomy itself
■ But is that really obedience then?
■ obedience is supposed to be despite consent, not by consent
■ actuality of such consent questioned - implicit consent by allowing
things to happen?
○ expressive obligations
■ ex. by gratitude - owing to society
Part A
by Inji Kim
2019/2020
, Topic 1: Anarchy or Obligation?
A. Reading
● Wolff: The Conflict Between Authority and Autonomy
● Raz: The Obligation to Obey the Law
B. Lecture Notes
WHAT IS JURISPRUDENCE?
● helps to understand the trivium:
○ grammar (how to acquire, form concepts)
○ logics (how to relate them without entering fallacies)
○ rhetorics (how to communicate)
SOME BASIC TERMS
● philosophy is about making distinctions
● conceptual v empirical truth
○ conceptual: ex. circles are round (totality? circularity? uninformative?)
○ empirical: ex. this circle is blue (tends to be more important, adds
information)
● necessary v sufficient conditions
○ necessary: needed for a condition to happen
○ sufficient: by and itself enough to create a condition
○ can overlap
● validity v soundness
○ validity: logical structure is valid
○ sound: premise is true (inference can be valid but unsound if premise is false)
○ syllogism = three sentences (if premise true, conclusion must be true if valid;
if premise false, does not necessarily mean that conclusion is true)
○ interesting: falsity does not perpetuate itself in a syllogism, but truth does
● normative v factual statements (ought/is)
, ○ normative: ‘should’, standards made (if there is a mismatch, world would
need to change)
○ factual: statement to match world/situation (if there is a mismatch,
statement needs to change)
● morality v prudence (contentious distinction); distinction within normative field
○ morality: unconditional normative claims
○ prudence: claims conditional on some circumstances, depends on desires
and beliefs
○ Q: What kind of ‘oughts’ does the law create? conditional? moral?
○ Q: What is the relationship between both?
○ Q: What is the relationship between law and morality + prudence?
● differentia specifica v genus proximum (when defining something)
○ differentia specifica: distinguish the object from genus proximum
○ genus proximum: the closest kind to object
○ ex. chair - object to sit on + man-made (to distinguish from ex. rocks)
○ there can be over- and under-inclusive definitions
○ when encountering something that fits the definition but it is not meant to,
one can either further narrow definition or say that it is just included (such
decisions have to be made by the law constantly)
○ also regarding definitions:
■ try to think of counter-examples to test definition
■ Does it include false positives?
■ Does it exclude things it should not?
WHAT IS AUTHORITY?
● right to command
● right to be obeyed
● duty that people do something
● duty that people do something simply because they are told to do so (order needs
to be cause of action)
WHAT IS AUTONOMY?
● literally - ‘self-legislation’ (Kant)
● being and considering oneself as the author of one’s life
● taking ultimate responsibility for one’s actions, regarding oneself as last reference
, ● autonomous people are duty-bound to never do something simply because they
are told to do so
CONFLICT BETWEEN AUTHORITY AND AUTONOMY
● conceptual contradiction
● political anarchists: movement to get rid of domination and authority
● philosophical anarchists: claim that legitimate authority cannot exist
● solution?
SOLUTIONS
● accepting soundness of argument (premises true, argument valid = admitting there
is a conflict)
● giving up autonomy or authority (partially) after accepting tragic conflict of duties
● attacking soundness of argument
○ attacking premise of anarchist that autonomy is only source of legitimacy
○ ex. moral autonomy is not our primary or fundamental obligation
○ pushing against the argument: autonomy as a capacity that needs to be
developed before it can be exercised; various kinds of authority making this
development possible; authority and autonomy thus cannot be
incompatible (Kant: we must emerge from our immaturity)
○ assuming that the anarchist argument is true and demonstrating that it is
absurd: Wolff’s argument proves too much - ex. it also makes promising and
entering into Ks impossible (as you put yourself under the authority of your
past self, obeying your past self, when you fulfil a promise)
CLASSICAL IDEAS ABOUT AUTHORITY
● voluntarist theories
○ consent
■ authority involves will/autonomy itself
■ But is that really obedience then?
■ obedience is supposed to be despite consent, not by consent
■ actuality of such consent questioned - implicit consent by allowing
things to happen?
○ expressive obligations
■ ex. by gratitude - owing to society
