Module Information

Does law have a necessary connection with morality? Can we argue that an unjust law is not a real law? Is law simply the exercise of power or a form of state bullying? We talk of it as involving rules, but what is a rule, and how can it cover all eventualities? What is a judge really doing in declaring the law to cover a particular case?

These are the types of issue which are addressed in the course entitled "legal theory". No prior acquaintance with philosophy is required nor do there exist any "prerequisites" for entry into the course. The aim is to provide all those involved with a grasp of the "larger questions" concerning their chosen subject of study - the seemingly autonomous discipline of law. If we do not have the "answers", at least we will all have a better grasp of the sense of our questions - "sense" as distinct from "non-sense".

To introduce students to and then develop their capacity for a critical reflective attitude towards the consideration of law as a whole rather than merely consider its constituent substantive elements. Philosophical perspectives and consideration of wider ethical and conceptual issues inform the student's analytical capacity.

CONTENT
The precise content of the course may vary as different topics become more or less timely or significant at the time the course is taught, but will include some or all of the following:

1 Natural Law
What is the relationship, if any, between law and morality? Can we say that an unjust law is not really a law at all? We will look at a body of opinion, from St Thomas Aquinas in the thirteenth century to contemporary philosophers like John Finnis, who argue that law and morality have a necessary connection.

2 Positivism
If law has no necessary moral content then what is it? An exercise of political power? A logical, scientific structure? A collection of social rules, rather like those of football?

3 The obligation to obey law
Linked to the above questions is the issue of obligation. Why should we obey the law? Because it is fair? Or necessary? Or morally right? When shouldn't we obey it?

4 Rights
Another term we use all the time ('human rights? etc) but which we seldom bother to explain. Is it just an emotional claim to something we want, or is the substance of a right a different kind of thing? Where do these 'rights? come from?

5 Theories of adjudication
Law involves people making decisions. How do they do this, and how should they? How do we fit the undecided bits of law into theories which tell us what the law is?

6 Comparative Legal Theory
Most legal theories which appear in the textbooks speak of universal truth about the nature of law, but are often the products of British (or American) academics. Would someone in Africa (for example) recognize such ideas or agree with them?