Handbook

This course encourages students to take a reflective interest in the study of law - its intellectual foundations, its social
conditions, its relationships with morality and politics, and its kinship with other disciplines, especially philosophy, ethics
and social theory. The course is theoretical in the following sense. In their practical, day-to-day, activities, lawyers take,
and must take, much for granted: about the nature of the law, about the purposes and functions of its institutions and
doctrines, and about the worth of it all. They practise within established legal systems, with more or less settled
institutions, techniques, traditions and rules. Customarily they think within the categories and arrangements provided by
the legal system, rather than about them.

Legal Theory is concerned to think about precisely those frameworks that lawyers think within. It aims to probe and
discuss theoretical questions about law, which underlie the practical stuff of the law. Such questions include matters of
description and analysis - what's going on?; of comparison - what else goes on elsewhere and what can it tell us about
what goes on here? - and of evaluation - is what is going on what should be going on? Purported answers to such
questions are constantly assumed and relied upon in legal talk and action. Legal actors, however - like all social actors -
are frequently unaware of the extent to which, or the ways in which, what they take to be perfectly obvious, natural and
impossible to imagine otherwise reflects particular, usually traditional assumptions which are questionable but are rarely
questioned.

Legal theory examines such assumptions, clarifies the issues with which they are concerned and frequently shows these
issues to be more puzzling and contentious than is commonly assumed. It acquaints students with, and gives them
opportunities to think about, question, criticise and defend, some of the most important ingredients in their own thought
about the law; ingredients which are all the more important for not being commonly recognised as matters of argument or
even discussion at all.

Theoretical inquiry has no predetermined 'results', or rather just one. Students will decide for themselves whether they
emerge from such inquiry with better or worse reasons to believe what they started with, or whether they should believe
new or different things. On the other hand, however they begin, they are unlikely to emerge thinking that the questions
discussed in the course have simple, obvious or uncontroversial answers.

In general terms this course discusses the consequences for law of the present ascendancy of two basic ideas – legal
positivism as a dominant approach to understanding law and liberalism as an organising framework for thinking about
political life. Legalpositivism, basically, is the idea that the validity of law is a matter that can be worked out independently
of non-legal (e.g. moral) concerns. A liberal understanding of politics among other things takes the conception of ourselves
as self-governing (as autonomous) as its basic value and evaluates legal practices in terms of how well or badly they
contribute to this value. Time is spent discussing these accounts of law and politics.

Along the way we discuss a number of basic ideas associated with contemporary legal/moral/political philosophy. These
include - the nature of legal analysis, the separation of law from other areas of social life, the difference in moral theory
between the right and the good, moral and personal autonomy, liberalism’s relationship to rights and to cultural and
religious difference, and law’s relationship to justice, democracy and the rule of law.

In order to make these ideas more concrete we relate them to certain ‘problems’ of contemporary legal practice. A
consideration of the materials for the later classes will show the type of issues that will