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| JURISPRUDENCE & LEGAL THEORY UCL: LL.B. 2005-2006
Second Term: BIG BOOK (Part B) and SPECIAL TOPIC (Part C) IMPORTANT: you should read all of this document – long though it is – very carefully, as it contains information about the supervision and writing of your dissertation and how your dissertation will be examined in relation to its content, the (NB!) typography and its length. There are eight Big Books and eight Special Topics offered this year, covering a very wide range of topics overall. You should register your choice on the attached form and give it to the Faculty Office by 4.00 pm on Wednesday 7 December, at the very latest. After that date, you run the risk of not obtaining your first choice. However, I imagine from the choice available this year, there will be no problem. But if a course is too large there will be a ballot, and so choices will NOT be registered on a first come, first served basis. I should add that since Jurisprudence is taken by everyone in the year, the timetabling is complex and you must be prepared to lose out on a choice because of timetable impossibility; nevertheless, the Faculty Office has been very adept in past years in getting most people a timetabled slot. The Big Book seminars will occupy the first three weeks of teaching next term. The Special Topic will begin in the week of Monday January 30, which is two weeks before Reading Week. There will be an optional question (Question 1) on your Big Book (i.e. ‘Either (a) or (b) or (c), etc, …’) in the Examination. The Special Topic essay counts for 40% of the marks for the Jurisprudence examination. It should be on a topic agreed and discussed with your Special Topic tutor and MUST NOT be longer than 8000 words. An important point about length: last year’s External examiner in Jurisprudence urged us very strongly to reduce the maximum number of words to 6000, echoing the previous External examiner’s comments. He said that a significant number of students did not do as well as they might have because they made their essays too long. He said that essays were often repetitive or ‘padded out’ and it was better to be more direct, clearer and ‘punchier’. After discussion, the UCL Jurisprudence teachers decided that because some topics lend themselves to a longer treatment the word limit should be kept at 8000 words although that we would very strongly encourage all students to think carefully before going over 6000 words. Ideally, we think, the essay should be around 6000 words (about 20-25 pages of typed, double-spaced A4). Important: note the remarks about length. Most candidates ignored this identical paragraph last year and wrote approximately 7900 words; some said they wrote 7900 words, or thereabouts (some amazingly wrote exactly 7999 words!), but independent counting by the examiners determined that some essays were considerably longer. In one instance, the length was 9,500 words. The examiners cease reading at 8000 words, and so you run the risk that you are marked on the basis that you have written an essay that is not properly structured, say, it lacks a conclusion. You are warned! The best essays are shorter, not surprisingly, given what we and the external examiners have been saying now for four years. The examination regulations specify that the essay must be handed in hard copy in no later than 4.00 p.m. to the Faculty Office on Thursday 27 April 2005 (the first week of the Third term). It is wise to aim for a much earlier submission date and we strongly advise you NOT to leave the writing up of your research until the Easter vacation. The following guidelines apply to the Special Topic: i. you are required to submit an essay title for approval by your tutor; you should do this well before the end of the Second Term; ii. it is in your interest to start writing early and produce at least a first draft by the end of the Second Term so that you can polish it over the Easter vacation; iii. your tutor will be prepared to read and comment on short sections, give you advice about a title and talk to you generally, but will not read a complete draft; and iv. the tutor may make some comment on how your work might be improved. On no account will the tutor give you any indication of the MARK OR GRADE that you will receive in the examination. Indeed, since any mark or grade would be dependent upon the first and second mark of the final submitted draft and is subject both to the External Examiner’s final decision, and confirmation by the Board, a tutor would not in any case be in a position to make such a comment. It is most important that you do not interpret anything a tutor says to you as in any way a confirmation or prediction of a grade to be obtained. v. there should be a. adequately footnoted references and b. a properly cited bibliography at the end. vi. you must produce your essay by word processing; vii. your essay should conform to the typographical rules attached at the end of this document; if your essay is selected for the Review, it must conform to them; and
ix. you may, if you wish, do a Special Topic of your own choosing if you find that none of the Special Topics fits what you would like to do. But be careful before deciding to do this, as there is great advantage in a. taking a topic that the supervisor is particularly interested in; and b. going to classes where you will get instruction about writing an essay, detailed reading lists, and a chance to discuss - and listen to discussions - on a topic. If you do a Special Topic of your own choice, you still need to find a supervisor. It is probably a good idea to have a talk to me (Stephen Guest, Room 108, s.guest@ucl.ac.uk) first, if you are contemplating this course of action. UCL JURISPRUDENCE REVIEW 2006The 2005 UCL Jurisprudence Review is just about to be published. It contains a selection of the best dissertations submitted in the Jurisprudence and Legal Theory course in 2004/2005. (There will be copies in the Main Library). The Review has been very well received, particularly by members of the profession to whom we have sent copies. The circulation of the Review is now large and we send it to law libraries all over the world. We also send copies to some of the Law Lords each year, and each year have received good comments in return. It has become clear that having an article in the Review makes a significant difference to your curriculum vitae in the eyes of employers. YOUR essay could be in the 2006 volume. We choose from among those dissertations which receive first-class marks in the summer. If you’re selected, we’ll be in touch with you next summer for permission to reproduce your essay. Important: you won’t be considered for the Review if the typographical guidelines which are included with this handout are not adhered to closely. N.B. The specific objective of Part C (the Special Topic) is: At the end of the course, you should be able to: demonstrate systematic reading, clarity of expression, ability to develop an argument in support of a position and to anticipate and to answer objections to that position, through the production of an essay of not more than 8000 words on a topic of your choice approved by one of the teachers on the course. You should see the Reading list and the introductory document for the full list of aims and objectives. Part B. Big Books B.1 Plato: The Last Days of Socrates (2003) Penguin Classics, £6.39, ISBN: 0140449280 George Letsas ‘The jury does not sit to dispense justice as a favour, but to decide where justice lies; and the oath which they have sworn is not to show favour at their own discretion, but to return a just and lawful verdict.’ Socrates, The Apology, 35c Socrates is one of the most enigmatic figures in the history of philosophy. What do you make of a man who didn’t write anything in his entire life, asserted in every occasion not to know anything, yet is considered to be the founder of western philosophy? Be that as it may, his contemporary Athenians failed to appreciate that Socrates was, as an oracle had said, the ‘wisest of men’. They accused him instead of trying to corrupt the minds of the young and believing in his own gods. The verdict was ‘guilty’ and the penalty was death. The Last Days of Socrates is a contemporary title given to the collection of four short Platonic dialogues (Eythyphro, Apology, Crito and Phaedo), all relating to the trial and death of Socrates. They were written by Plato within a decade of his master’s death, and provide the clearest view we can have of the historical Socrates. In Eythyphro, where Socrates is shown to have just heard of the official charges against him, we get an excellent view of his famous method of philosophising: profession of ignorance, request for a definition, critical scrutiny (elenchus) and finding of an inconsistency. Does Socrates merely pretend not know anything (irony) or is he an honest sceptic? How does he lead his interlocutors to accept that they hold inconsistent beliefs? The Apology (=plea), representing one of the most tragic trials in legal history, stands out for the oratorical skill and the tragic situation of the defendant. Is Socrates guilty of impiety or is he solely condemned for criticising and trying to change the Athenian society? Did the jury misunderstand Socrates’ method and commitment to truth? If The Apology is a masterpiece in the history of jurisprudence, Crito signifies the birth of political thought. As Crito desperately tries, after the trial, to persuade Socrates to escape from prison, we meet the first and perhaps still most persuasive account of why we have an obligation to obey the law. The questions of political obligation, civil disobedience and moral integrity, all arise in Socrates’ adamant refusal to disobey an unjust decision and thus break the contract he has signed with the city of Athens. Because of its literary excellence, this book is a classic of literature as much as it is a classic on the relationship between morality and law. B.2 John Locke Two Treatises of Government edited by Peter Laslett, (Cambridge UP, 1988) Stuart Lakin John Locke published his Two Treatises on Government in 1690. The work stands as one of the towering works in political philosophy and offers wonderful insights into the political climate of the Glorious Revolution (for you history buffs). Indeed, since Locke himself was closely allied to the Whigs, his aim in producing the work was arguably to defend the Glorious Revolution. He set about his task in two ways. In the first place, he sought to refute the doctrine of the divine and absolute right of the Monarch, as it had been put forward by Robert Filmer's Patriarcha and Thomas Hobbes’ Leviathan (although it is open to debate whether Locke intended explicitly to tackle the views of Hobbes). Secondly, he sought to establish a theory which would reconcile the liberty of the citizen with the notion of political order. At the root of his theory, Locke takes the abstract idea of the ‘state of nature’. Where Hobbes had described mankind in the state of nature as being in the condition of war – and consequently in need of an all-powerful Leviathan – Locke denied that the state of nature required government at all. For both Hobbes and Locke, men were born free, equal and bound by the Law of Nature. Their differing treatment of these ideas is intriguing and looms large in much of the contemporary debate in moral and political philosophy. In particular, Locke introduces a theological aspect to his state of nature, absent in Hobbes, and offers a very different account of natural liberty and punishment. Locke builds his theory of government on the idea of contract or consent (a device also employed by Hobbes and Rousseau), and places great emphasis on the right to property – particularly controversial today given the burgeoning theories of distributive justice. The diversity of themes in the two Treatises is reflected in copious literature of a very high quality. The best edition of the text is probably the Peter Laslett, (Cambridge UP, 1988) which you can buy for around £9.00. B.3 Thomas Hobbes, Leviathan (1651), ed. Richard Tuck: Cambridge Texts in Political Philosophy: Revised Student Edition (Cambridge University Press 1996), xciii + 519 pages, ISBN: 0521567971, £8.95. Emmanuel Voyiakis Leviathan is the masterpiece of English political thought and a work that, perhaps more than any other, has defined the character of modern political philosophy. Since the late seventeenth century, all great writers on political theory -from Kant and Marx to Rawls and Nozick- have measured themselves against it. That is hardly surprising, for Leviathan addresses questions that lie at the heart of all debates about our moral and legal rights and obligations. Why should we obey the government? Is civil disobedience ever justified? What about revolution? What are the right principles of governance? What is the relationship between our moral rights and our legal rights? Do we need to make a moral judgement in order to find out what the law is? What makes Leviathan especially important in the history of political thought is the minimalism of its first assumptions. Moral and political philosophy can be quite easy when you assume that our obligations come ready-made from a benevolent God, or that people are kind, compassionate and unselfish by nature. Hobbes argues that these assumptions are not only unrealistic but also dangerous. We should have no illusions about human nature. Humans tend to be selfish and insecure. Left unchecked by central government, they will tend to do anything to advance their own interests. Instead of sweeping this disturbing fact under the carpet, political philosophers need to show how a society of self-interested individuals can come to owe genuine political obligations to each other. Leviathan puts forward an ingenious solution to this problem. If all individuals agree to a Covenant by which everyone would accept limits to their liberty in exchange for common peace and security under a powerful central government, they can overcome their natural tendencies and start leading fulfilling and prosperous lives. Using its power of reason, humanity can take control of its nature and change its fate for the better. There are a variety of editions of Leviathan that should suffice for our use. My first recommendation would be the Cambridge Edition by Richard Tuck (see above). Do not be intimidated by the length of the work; our discussion will focus on about 100 pages from Part Two. A more extensive introduction to Hobbes is Richard Tuck, Hobbes (Oxford, 2002).
The best edition today, and widely available, is the version in the Cambridge Texts in the History of Political Thought series, which has an Introduction by Ross Harrison (Cambridge U.P., 1988), in print for around £15. The text used by Harrison was that edited by J.H. Burns and H.L.A. Hart produced during their time with the Bentham Project. The Project now has a number of the original hardback Athlone editions for sale at a heavily discounted £10. (See Kate Barber, Room 310). Introductory: The best introduction to the theory of Jeremy Bentham is John Dinwiddy’s short study Bentham in the Oxford Past Master series, recently reprinted in W. Twining, ed. Bentham: Selected Writings of John Dinwiddy (Stanford, 2004) Also useful: J.H. Burns, ‘Bentham and Blackstone – a Lifetime’s Dialectic, in Utilitas, vol.1, pp.22-40. H.L.A. Hart Essays on Bentham: Jurisprudence and Political Theory (Oxford, 1982) D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century England (Cambridge, 1989) W. Twining, ed. Bentham (above) B.5 Ted Honderich After the Terror, 2nd ed. (2003) Edinburgh U.P. ISBN: 0748616683 £9.99 160pp. Andrew Lewis What does the phenomenon of terror tell us about ourselves and our moral obligations? Can political violence ever be justified and if so, under what conditions? What distinguishes lawful combat from illegal terrorism? Is the notion of a ‘war on terrorism’ cogent in legal terms? In particular what legitimate routes are available to those whom the present world settlement systematically deprives of the means of political expression? After the Terror is a powerful exploration of these issues. But the book itself has become a player in the disputes with which it engages for the first edition was heavily criticised for its characterisation of the relations between Israel and the Palestinians and the publisher of the German edition determined not to reprint it (the second German edition was then brought out by a Jewish publisher.) By implication, at least, the book’s history raises questions about freedom of speech in a polarised world. Ted Honderich was previously Grote Professor of the Mind and Logic at UCL. He maintains a site on the UCL web which contains much material germane to the issues addressed in this book: http://www.ucl.ac.uk/~uctytho/ See especially the draft material from his forthcoming book on Palestine, 9/11, Iraq, 7/7... at http://www.ucl.ac.uk/~uctytho/PalEtcBookSections.html. B.6 Friedrich Nietzsche On the Genealogy of Morals (1887) Oxford paperbacks ISBN: 019283617X £5.59 from Amazon Marc Jacob Shunned during his sane life, Nietzsche’s raw emotive tirades and iconoclastic brilliance flare up notoriously in On the Genealogy of Morals, a paradigmatic example of his repudiation of Judaeo-Christian compassion for the weak and his dreaming up of a superhuman Übermensch who has no need for the petty restrictions of common morality. His account of the corruption and moralization of simple factual concepts, told with brio bordering on fervour, is a classic example of anti-utilitarian naturalism and romanticism that is deeply concerned with nihilism and its consequences. Resurrected after their infamous appropriation by Fascism, Nietzsche’s ethics have an enduring appeal owing largely to their controversial break with age-old cultural inheritance, prompting a reassessment of the motives underlying traditional Western philosophy and morality as well as a critical appraisal of the social effect of religion. At times fatalistic, dark and prophetic, yet also refreshingly liberating and transformative, Nietzsche’s Genealogy is an important work by one of the most influential modern thinkers. B.7 Kant Groundwork of the Metaphysic of Morals (1785) trans. and ed. Gregor; intro. Korsgaard. Cambridge U.P. (1998) ISBN 0-521-62235-2 £9.99 Stephen GuestThis is one of the core texts of Western philosophy. Its effect outweighs its shortness. It ranks alongside the best of Plato and Aristotle and stands in amazing contrast to Bentham’s Introduction to the Principles of Morals and Legislation and Hume’s Enquiries Concerning Human Understanding, both published in the same century. It is an excellent antidote to utilitarianism and you will discover much that is familiar in your own moral thinking. It is fiendishly difficult in places but … we’ll go slowly and it is only 76 pages long. In this work, Kant claims to have both uncovered and vindicated the famous ‘categorical imperative’, which commands us only to adopt maxims or principles of action which can be universalized. The categorical imperative is supposed to be valid a priori, i.e. independent of any empirical considerations. It is a law of pure human reason itself, and our the conformity of our will to what rationality requires, independent of any ‘heteronomous’ influence such as desire (even the desire to be good, or to do what God requires) manifests the most precious of human characteristics, the freedom to choose. Accordingly, the Groundwork has rightly been regarded as one of the manifestos of the age of Enlightenment. Kant’s ideas have given raise to endless debate and controversy. To a certain extent, this is due to Kant’s notorious obscurity in the use of core technical terms. What exactly is a ‘maxim’? What exactly does it mean for a maxim to be universalizable? The above edition is the best and the introduction by Christine Korsgaard one of the world’s leading Kantian scholars, is extremely helpful and clear.
This book divides into three parts. In the first, Dworkin argues that we misunderstand both sides of the abortion debate if we take it to be about whether the foetus is (at least in the early stages of pregnancy) a creature with rights and interests that abortion would violate. In order to make sense of what most people on both sides of the debate actually believe, Dworkin says, we must see them as taking seriously a quite different moral idea, which he calls the sanctity of life. The second part of Life’s Dominion is devoted to the U.S. constitutional jurisprudence of abortion, specifically to the argument that, given what the abortion debate is really about, something very close to the position taken in Roe v. Wade is the correct constitutional standard for laws regulating abortion. Finally, in the last two chapters of the book, Dworkin applies the distinctions he has drawn between rights, interests, and the intrinsic sacredness of life to the difficult case of euthanasia. Part C. Special Topics C.1 International justice. Emmanuel Voyiakis It is estimated that today over 800 million human beings are chronically undernourished, 1200 million lack access to safe water and 2750 million lack access to basic sanitation. One third of human deaths, about 18 million annually, are due to poverty-related causes, easily preventable through better nutrition, safe drinking water and basic medicine (UNDP – Human Development Report, 2004). That these people are morally entitled to the assistance of affluent and developed countries is beyond reasonable dispute. What is less clear is the nature and extent of such moral rights and the corresponding moral duties. Who do we owe those duties to? To the State whose nationals are suffering or to the individual sufferers? Are these duties that you yourself owe to a dying child in Africa? Or are they duties that your State or your Government owes? Furthermore, what do these duties require us to do? To provide regular humanitarian assistance? To cancel third-world debt? To ensure that every human being’s basic needs are met? Or to effect a just and fair distribution of the world’s total resources? Our three (possibly four) seminars will focus on these questions by discussing the work of leading moral and political philosophers in the field of international justice. In the course of the seminars, we will have occasion to discuss the relevance of justice and fairness to the hard realities of international politics; the moral significance of national boundaries and national identities; the distinction between humanitarian duties and duties of justice; the relationship between the ideas of community, justice and individual human rights; and the importance of cultural difference within the international community. For a good (if slightly overlong) overview of the topic see Michael Blake’s entry for ‘International Justice’ in the on-line Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/entries/international-justice/. The best book I can recommend as basic reading is the classic work by Charles Beitz, Political Theory and International Relations (1999, with a new afterword by the author). Reading: Beitz Ch. et al. (eds.), International Ethics (1985), Parts IV and V only Nagel T., ‘The Problem of Global Justice’, 33 Philosophy & Public Affairs (2005) 113 Rawls J., The Law of Peoples (Cambridge: Harvard University Press, 1999) Pogge T. (ed.), Global Justice (London: Blackwell, 2001), Chapters 1, 10-13 Barry B., “Statism and Nationalism: A Cosmopolitan Critique,” in Shapiro I. & Brilmayer L. (eds.), Global Justice (New York: New York University Press, 1999) Buchanan A., Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), Part I only. C.2 Feminist legal theory. Alison Diduck Feminist legal theory offers a challenge to conventional of ways understanding the form, meaning and function of law; it offers a critique of foundational assumptions about law. It is different from a feminist critique of laws. While they write from many different political perspectives, feminist scholars share the assumption that sex/gender is important; it matters in ways not accounted for in orthodox jurisprudence and liberal law. From the early critiques of modern liberalism such as those propounded in the 18th and 19th centuries (see eg, Wollstonecraft, Mary (1792), A Vindication of the Rights of Woman and Mill, J. S. (1869), The Subjection of Women) to the post war ‘Second Wave’ feminism, feminist scholars have offered not only thoroughgoing challenges to liberal legalism, but many have also attempted to theorise possible alternatives to it. We cannot, in these seminars, address all aspects of feminist legal theory. We will, however, address its basic premises and its relationship to law and legal method. We will, therefore, ask what feminist insights or methodological approaches can offer to understanding the foundational subjects of law, such as criminal law, tort law, property law, and/or contract law and the basic principles of liberal law, such as equality and rights. You may wish, for your paper, to assess a specific legal principle or area of law from a feminist perspective, or you may wish to look at the legal regulation of a cultural practice such as the concepts of merit, success and promotion in the legal profession itself. Or, you may wish to evaluate aspects of the feminist project itself, such as the criticism offered by non-white women to feminism’s claims to be inclusive. In general, you will be encouraged to explore the relevance of feminist theory for any aspect of law, legal theory or legal practice, but you will have to be specific and clear about your topic. Further guidance and reading will be given in the seminars, but below is some introductory reading you will find useful. .
Conaghan, Joanne ‘Reassessing the Feminist Theoretical Project in Law’ 27 (2000) Journal of Law and Society 351 Naffine, Ngaire ‘In Praise of Legal Feminism’ 22 (2002) Legal Studies 71
Key questions to be covered include: • How can a crime or offensive action be defined and who should define it? • What constitutes ‘punishment’ and why should it be linked to offending? • What is the supposed and actual role of the criminal justice system in the process of punishing offences? • What is punishment for? • How can the effectiveness of punishment be assessed?
D. Garland, Punishment and Modern Society: a Study in Social Theory, (Oxford, 1990). C.L. Ten, Crime, Guilt, and Punishment: a Philosophical Introduction, (Oxford, 1987).
Thomas NagelThe idea that individuals have certain universal moral rights just by virtue of being human, forms an integral part of western liberal thought from the Enlightenment onwards. Concern for human rights is now an essential feature of legal and political theory and practice. Human rights are entrenched in national constitutions and in international conventions and constitute standards by which the legitimacy of a particular regime is judged. The prohibition of torture in particular is absolute. The right not to be tortured is the only human right that admits no exceptions or restrictions and from which states cannot derogate. Yet in the last few years, following the surge in large-scale terrorist attacks, many have challenged the absolute character of the right not to be tortured. It is argued that not only is it permissible to torture someone in order to save the lives of innocent victim but also that we may have a duty to do so. We shall spend three or four seminars discussing the famous ‘ticking bomb scenario’. Is it morally permissible to torture the person who has planted the bomb if this is the only way to prevent the loss of thousands of lives? Our main focus will be on the debate between deontological and utilitarian theories and the role that consequences play in moral reasoning. We shall also link these theories to the anti-terrorist measures adopted post 9/11. Individual supervision will be given thereafter.
Thomas Nagel, ‘War and Massacre’, in his Mortal Questions, Cambridge: Cambridge University Press, 1979 Alan Gewirth, ‘Are There Any Absolute Rights?’, in J. Waldron, ed., Theories of Rights, Oxford: Oxford University Press, 1984 Shue, ‘Torture’, Philosophy and Public Affairs, 7, Winter 1978. Michael Levin, ‘The Case for Torture’, Stephen R. C. Hicks and David Kelley, eds., Reading for Logical Analysis, New York: W. W. Norton, 1998 (available at http://people.brandeis.edu/~teuber/torture.html) Alan Dershowitz, November 8 2001, in a commentary for Los Angeles Times "Is There a Torturous Road to Justice?" discusses a proposal for a "torture warrant". http://groups.google.com/groups?selm=LpxG7.42870%24zK1.11056004%40typhoon.tampabay.rr.com Dworkin, ‘Terror & the Attack on Civil Liberties’, New York Times, Volume 50, Number 17. November 6, 2003 http://www.nybooks.com/articles/16738 Nagel, ‘Personal Rights and Public Space’ 24(2) Philosophy and Public Affairs (1995) 83 C.6 The nature and justification of judicial policy-making. Stephen Guest ‘[Public] policy is a very unruly horse, and when once you get astride of it you never know where it will carry you.’ Burrough J. in Richardson v. Mellish (1824) 2 Bing. 229 Judges should be ‘trusted as interpreters of the law than as expounders of what is called public policy.’ Cave, J. in re Mirams [1891] 1 Q.B. 594 ‘The majority recognises that any decision based upon notions of public policy is one about which reasonable persons may disagree.’ Florida Supreme Court in Public Health Trust v. Brown (1980) 388 So. 2d 1048, 1086 (Supreme Court of Florida) 'Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable – saying that they are, or are not, too remote – they do it as a matter of policy so as to limit the liability of the defendant.’ Lord Denning in Spartan Steel & Alloys Ltd v. Martin & Co. [1973] 1 QB 27 ‘I agree that in the end it is a matter of policy. It is a matter of policy in an area where social and moral factors are extremely important and where attitudes can change. In my opinion it is a matter of policy for the legislature to decide.’ Lord Slynn dissenting in R. v. Brown [1993] 2 All ER 75 ‘Policy’ refers to many different and important ideas in legal argument and lawyers are often poor at recognising the appropriate distinctions. Often ‘policy’ is lazily used to justify decisions that cannot be justified at all, or not easily. Sometimes ‘policy’ is just a convenient way of saying that ‘the decision is bound to be controversial’, and this is the line the Supreme Court of Florida took. Other times it is a word that masks something sophisticated and novel but nevertheless within the competency of the judge (Lord Denning above uses ‘policy’ that way, I think). Many times it refers to those sorts of decisions that are more appropriately made by the legislature (like Lord Slynn above). This last is particularly interesting because its use implies judicial belief about their appropriate role; thus Cave, J. supposes that judges must confine themselves to interpreting the law. Ronald Dworkin argues in anti-utilitarian vein that judges should confine themselves to arguments determining litigants’ rights and ignore arguments that justify the pursuit of non-individualised community goals such as the maintenance of security or increases in the Gross National Product. Richard Posner supposes (or supposed at one time, with very great influence) that litigants’ rights are to be solely determined by the contribution the assigning of those rights would have to maximising the wealth of the community. There is great scope in this topic for mixing both theoretical accounts and looking closely at cases. I shall give two introductory classes, one on research method and the other on the major themes the topic encompasses. Thereafter I shall see students individually. In this Special Topic the following are suitable questions:
• What are the limits of judicial decision-making? Are the limits constitutional? Are they merely limitations of practical competence? • Is there a consistent use of the idea of ‘public policy’ in judicial decision-making? • Is there a practical distinction to be used in litigation between arguments about rights and arguments of policy (see Dworkin, passim) • What is the qualitative measure of policy? Wealth? • Is there a coherent meaning to public policy in cases involving consent to bodily harm? • Can a purely sceptical account of judicial reasoning be provided, one which shows that when judges say one thing sometimes they are really – and perhaps unconsciously – doing something different?
Dworkin Taking Rights Seriously ch.4 MacCormick Rhetoric and the Rule of Law (Oxford UP, 2005) ch.6 Fuller ‘The Forms and Limits of Adjudication’ in The Principles of Social Order (1981, Duke U.P). C.7 Justifying judicial review. Stuart LakinThis is an opportunity for students to explore the rich and diverse theories of judicial review in legal and political philosophy, and to think about how, if at all, we can justify this phenomenon. Judges, academics and citizens around the world argue about the legitimacy and point of judicial review. Many argue that it is inherently undemocratic in that it thwarts the will of elected representatives. Others argue that judges somehow enhance the principle of democracy in their judicial review function. What do these different views imply about the meaning of democracy? How do human rights and the rule of law fit into this picture? What is the case for saying that judges have a special role to play in relation to human rights and the rule of law? These are the questions that fill the law journals and reverberate daily around law schools in the US; but what of the UK? Have UK public lawyers really engaged with these important philosophical questions about judicial review? Does the doctrine of parliamentary sovereignty somehow have an inhibiting effect on debates about judicial review and the separation of powers? Does the fact of a written or unwritten constitution perhaps dictate the way that we argue about judicial review? These are just some the questions that students may want to pursue. There is considerable scope though for students to approach the idea of judicial review from a range of other perspectives. I will offer a series of seminars on the views of leading judicial review theorists, in particular, in the US, Germany and the UK. During the course of these seminars I will offer a case study on the (anti-judicial review) work of Jeremy Waldron based, primarily, on papers he produced for the UCL Colloquia series last year. Reading:There is no set text for this topic. The literature on the subject of judicial review is impressive in its breadth and quality and I will provide students with a comprehensive reading list arranged broadly according to the different schools of thought on the subject. C.8 Law and terrorism – when and how to prevent. Marc Jacob Liberty and freedom are important values modern democracies claim to be committed to. But as national security continues to dominate the political landscape and newspaper headlines in a post-9/11 and post-7/7 world, many states have adopted a wide variety of liberty limiting “anti-terror” measures. Along with the singling out of specific nations as sponsors of terrorism and the listing of various terrorist organisations, analysts have urged an expansion and reorganisation of nations’ militaries to meet the challenges of terrorism and the proliferation of weapons of mass destruction. Spending on national defence has increased rapidly in many countries. In addition to that, the laws of war are being questioned, and many politicians and scholars are demanding novel interpretations of established mechanisms to fit current needs. Accordingly, legislative enactments and judicial pronouncements on imprisonment and trial guarantees abound. Not all measures taken by liberal democracies have however generated vigorous public debate. Pre-emptive action by the state is not a new phenomenon, as the well-known case of Liversidge v Anderson shows. An anticipatory rationale also underlies the familiar concepts of self-defence and the preventive detention of very dangerous offenders. But while rivers of ink have been spilt over the threat posed by terrorism, only slowly are analytical efforts channelled into scholarly examinations of the less visible countermeasures taken by modern legal systems in response to such a threat. Among these are racial profiling, preventive detention of suspects without trial, pre-emptive warfare, physical security measures such as the Israeli wall and medical pre-scanning, to name but a few. Surprisingly, such pre-emptive methods have not received the theoretical attention they deserve. This dissertation option attempts to remedy this deficiency by inviting jurisprudential analysis and a reasoned solution to one of the many problems engendered by the ostensibly conflicting values of security and liberty. Specifically, when does a risk become so grave that a commitment to other values or the whole legal system as such becomes unacceptable? Are the common methods of analysis such as utilitarianism or a rights-based theory adequate to deal with these issues? Is one to be preferred over the other? Could there be a third way, as Michael Walzer suggests, a type of “emergency ethics” which would guide human behaviour in such dire circumstances? Are there any limits to dealing with emergencies? Given that it is so often necessary to judge before all facts are known, is pre-emption just a matter of informed risk-taking or does it necessarily have a moral dimension? How good must any actionable intelligence precisely be? In short, how should society deal with theses new challenges? Helpful reading to get you started:
TYPOGRAPHICAL RULES Important: you can LOSE MARKS for bad typography. In any case, if you internalise these classic typographical rules adopted from Oxford University Press you’ll find you will have much more confidence in setting out your first opinions and advices (and, when you are old, judgements). The main principle is: avoid clutter, such as numbered heading, lettered paragraphs, underlining, double quotes when singles will do; anything that is unnecessary. The aim is to make your piece easy to read. Check your title; avoid long ones and avoid titles with questions – the title should make it clear what your main thesis is. 1. Form of contribution. Use Times New Roman 12 font with double-spacing but with no extra space between paragraphs. The main title should be in 14 font, bold; subheadings should be in 12 font, bold. Paragraph headings (sub-subheadings) should be in 12 font italic, not bold, and should appear on the same line as the first sentence of the paragraph. Example: Stylistic rules and the absence of clutter Centre the title. The first paragraph begins without the usual indent, and the main text is in 12 font and the title is in 14 font bold. A disquisition on subtitles The subtitle is in the same font as the text and is therefore in 12 font. It appears to the left. Waffle about paragraph titles. This is in 12 font italics, but not in bold, and appears on the same line as the title. 2. Each paragraph should be inset a .5’ tab except where the paragraph comes under a heading. There should be two spaces between each sentence. 3. Diagrams, charts, graphs, etc These can be difficult to get right. Just be careful that you don’t waste too much time. 4. Footnotes Footnotes should be printed at the bottom of the page on which they appear, font 11. Note references in the text should be printed outside (not inside)1 the punctuation.2 Contributors should attempt to keep footnotes brief and to the point. 5. Quotations. Short quotations should be placed in ‘single inverted commas’ and Smart quotes (Tools, then Auto correct, then ‘Format as you type’) should be turned on. ‘Only use ‘double quotes’ within single quotes.’ Quotations of more than a few lines should be indented using Tab (0.5 inches). Under such an indent, a new paragraph should not be indented. When omitting part of the quotation use ellipsis (three periods only): ‘…’ unless the omission ends a sentence: ‘….’ If a question mark is necessary at the end of quotation dots, treat the question mark as a full stop; thus ‘…?’ 6. Full stops. These should be used after single letter abbreviations (e.g., J.) but NOT after those which consist of a series of capitals (LCJ, MP, USA) or the first and last letters of an abbreviated title (Dr, Mr, St). 8. Bibliography and citation. Provide a bibliography at the end for all the references used in the paper but there is no need to mention cases here. Books and articles should be cited as follows. The general rule is italics for books (and newspapers) and ‘quotes’ for articles. M. Mouse, Let’s Kill All the Lawyers (Los Angeles, 1964), p.663. T. Tubbies, ‘Banality and Stupidity: Structuralist Accounts of Infantile Obesity’, in Mouse (ed.), Striking a Balance: Couch Potatoes and the Pathology of Sloth (London, 2003), p.114 Publishers need not be provided. Articles in periodicals should be cited as: M. Mouse, ‘Goofy and Sex: a Post-Structuralist, Hermeneutic Critique’, (2006) 43 Disney Quarterly Review 45 All bibliographical abbreviations, even the most common, should appear in full on the first appearance with an indication (if any) being adopted in subsequent citations of that same source. In subsequent citations, books and articles already cited should appear in shortened form without references: Mouse, Let’s Kill All the Lawyers, n.4 above, p.650. Tubbies, n.5 above, pp.150-55 ‘Op. cit.’ and ‘loc. cit.’ should be avoided. ‘Ibid.’, meaning ‘in that same place’, should be used carefully and sparingly. Remember that not everyone speaks Latin. Legal cases should be cited according to the appropriate convention. Above all, avoid unnecessary clutter. You don’t want your paper to look NAFF! “CLUTTER IS NAFF!” How to write essays.Important: you need to produce a thesis. That is to say, you are to produce an idea of your own, - an opinion (as it is called in legal practice) or a point of view, backed up – of course - with reasons. Merely describing what others have said is insufficient to obtain even middling marks. Here are some tips on how to write a Jurisprudence essay. There is no one formula for a good Jurisprudence essay, but the advice given below should at least help you towards writing such an essay. First of all, you need to choose your essay title. Obvious enough, but on what grounds are you going to make the choice? You will presumably choose a question which you find interesting, important, or puzzling, and one which you feel you have the knowledge and understanding, or can acquire the knowledge and understanding, to tackle well. On the whole, titles that are too long (very common) are not interesting to a reader, nor helpful; on the whole, too, titles that are just questions sit too much on the fence, although sometimes they are appropriate. You will need to read relevant texts, articles, and commentaries on the subject, but most of all to think about what you have read.
Before you begin to write, jot down a rough plan of contents, and arrange them in the order in which you intend to tackle them. Introduction The introduction is the most important part of the essay. There are several points which you need to make in your introduction: 1. Interpret the title. Many questions can be understood in more than one way. For instance, a question on the relative merits of legal positivism, may deal primarily with the command theory, with Hart’s concept of law, of with Kelsen’s pure theory of law (to name but three). You should say what you understand the title to mean. 2. State your thesis. What argument are you going to advance in response to the demands of the title? What is the central theme of your essay? 3. State briefly how you are going to answer the question. What is the structure of your argument, and therefore of your essay? Structure To repeat. Your essay MUST contain a thesis - an argument - of the validity of which you wish to convince the reader. It is not sufficient for the UCL Jurisprudence course that you merely given ‘an account’ of what other people have written or for any other course, for that matter. Your argument, and thus your essay, should have a logical structure. Each stage of the argument should be clearly visible. If necessary, use sub-titles or other ‘signposts’ which allow the reader to follow your argument, e.g. ‘I have shown the reasons in favour of this approach to law; I will now consider and refute the most important arguments against it.’ Adopt a sensible principle of paragraphing; in general, a paragraph states an argument, whereas a sentence states a thought. Be clear at each point of the essay what it is that you are trying to demonstrate. Two sorts of essay to avoid are: 1. the Parrot - this where you repeat arguments from a textbook; and 2. the Whodunit - this is where you merely describe the arguments of famous thinkers X, Y, and Z, and then abruptly conclude that Z is right. Mean what you say and say what you mean The essay should be written from a committed standpoint. What is your view, and what are the arguments which justify it? Moreover, which arguments are most important, and why? If you do not write in clear and correct English, your meaning will be lost. Make sure that you avoid ambiguity (where you words may have two meanings), obscurity (where your words have multifarious meanings), and nonsense (where your words have no meaning). Avoid the opposite dangers of redundancy (where you use more words than are necessary - sometimes called ‘waffle’ - and include repetition) and over-compactness (where you do not use enough words to explain your meaning). An example of redundancy is ‘It is submitted that …’ These four words are pointless (besides being pompous). Write in complete sentences. Spell your words correctly - remember that a spell-checker will only tell you whether words exist or not in its dictionary, but not whether you are using the right words. Learn, if you do not know already, where to place the apostrophe in the genitive case. Conclusion If you have nothing new to say, they do not merely repeat your argument. You have stated your argument in your introduction. If you have nothing new to say, then finish the essay without a conclusion. Conclusions are much over-rated! Read through your essay CAREFULLY before handing it in - do the words on the page accurately represent the thoughts in your head? Presentation Your essay should NOT have your name on it and certainly not on each page. You will be issued with a candidate number shortly before the Easter vacation and, ideally, this candidate no. should be printed on each page. Where you quote from an author, or précis an argument, give a proper reference. To the end of the essay, subjoin a bibliography of the books you have read in the preparation of the essay - this will help the reader to suggest further reading, if appropriate. AVOID PLAGIARISM - this is where you quote from an author, or précis their argument, WITHOUT A PROPER REFERENCE OR ACKNOWLEDGMENT. JURISPRUDENCE AND LEGAL THEORY. LL.B. 2005-2006. N.B. Make sure you fill in your name on BOTH Parts B & C. PART B BIG BOOK: FIRST CHOICE ____________________________________________________ SECOND CHOICE ____________________________________________________ NAME ____________________________________________________ ................................................................................................................................................ JURISPRUDENCE AND LEGAL THEORY. LL.B. 2005-2006 PART C SPECIAL TOPIC: FIRST CHOICE ____________________________________________________ SECOND CHOICE ____________________________________________________ NAME ____________________________________________________ You should register your choices on this form and give it to the Faculty office by 4.00pm on Wednesday, December 7th at the very latest. To remind you, in the unlikely event that you cannot get first choice, the allocation will be made by ballot, and will NOT be done on a first come, first served basis. 1 Like this 2 and this! Directory: laws -> current -> undergraduate -> docs laws -> A non-Violent Worldview laws -> Sample Government Interview Questions Table of Contents laws -> U. S. Bar Admission Requirements laws -> Laws before sinai laws -> Model Local Law No. 2 (Animal Management) 2010 Contents Part 1 Preliminary 4 Download 155.77 Kb. Share with your friends:
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