About the Lawcards Series

Jurisprudence Lawcards Glossary

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Chapter 1

Analytic jurisprudence

Analytic jurisprudence is one of two main branches of jurisprudence. It involves the scientific analysis of legal structures and concepts and the empirical discovery of the basic elements constituting law in specific legal systems. For analytic jurisprudence the question to be answered is ‘what is the law?’.

Cognitivism

This is the position according to which sentences used in a given discourse are cognitive, that is, are meaningful and capable of being true or false – for example, “grass is green” is a true proposition. In the area of jurisprudence, it refers to the view that it is possible to know the absolute truth about things – for example, what constitutes truth about justice. Thus in the cognitivist approach the sentence “it is always wrong to kill another human being” can be true or false.

Good

Some value or interest which it is generally considered desirable to attain or provide for in social arrangements, for example, liberty, equality or dignity.

Intuitionism

Intuition is the immediate apprehension of an object by the mind without the intervention of any reasoning process. Intuitionism refers to the view in moral philosophy according to which humans possess a faculty, conscience, by which they are able directly to discover and determine what is morally right or wrong, good or evil.

Libertarian

A term used to define approaches to legal and social arrangements which generally give priority to the concept of liberty, or the specification, attainment and protection of particular basic freedoms.

Morality

The making, holding or expression of moral judgments, that is, conceptions of what is good and bad, right and wrong or acceptable and unacceptable as judged in accordance with some a priori standard which may be a personal or social convention.

Moral philosophy

The formalised attempt to understand the thinking underlying or reinforcing moral judgments.

Normative jurisprudence

Normative jurisprudence refers to the evaluation of legal rules and legal structures on the basis of some standard of perfection and the specification of criteria for what constitutes ‘good’ law. This involves questions of what the law ought to be.

Chapter 2

Connection thesis

This phrase refers to the idea held by the proponent of normative jurisprudence theories according to which law needs to have a moral content in order to be valid law. The opposite view, or ‘separation’ thesis, is held by legal positivists, for whom law is valid irrespective of its contents provided it has been posited by people in rightful positions of power.

Separation thesis

see connection thesis

Natural Law

The philosophy of law which proceeds from an assumption that law is a social necessity based on the moral perceptions of rational persons and that any law which violates certain moral codes is not valid at all. Human law is thus based on certain universal principles, discoverable through reason or revelation, which are seen as being eternal, immutable, and ultimately based on the nature of human beings.

Principle of Generic Consistency

A supreme moral principle which is logically derivable from the nature and structure of human agency. The principle states that every agent must act in accordance with his or her own and all other agents' generic rights to freedom and well-being.

Teleology

The view that everything has an ultimate end or purpose towards which it will inevitably develop. Classical Natural Law theorists would argue, for example, that humans and their society have as an end some ultimate state of perfection, to which they must naturally approximate and towards which they must necessarily strive, and that law is an essential device for precipitating this end (from the Greek telos, meaning end, purpose).

Chapter 3

Efficacy

Effectiveness and efficiency, as in the capacity of a certain measure, structure or process to achieve a particular, desired result.

Imperative

The adjective imperative in jurisprudence refers to theoretical approaches to the nature of law, more specifically to the conception which regards law as being constituted generally by the commands, orders or coercive actions of a specific, powerful person or body of persons in society.

Norm

A generally accepted standard of social behaviour. Note that Hans Kelsen uses the term in his definition of law as ‘the primary norm that stipulates the sanction’ to refer specifically to ‘a conditional directive given to officials to apply sanctions under certain circumstances’.

Obligation

For Herbert Hart, a distinction must be made between ‘being obliged’ to act or forbear, and being ‘under an obligation’ to act or forbear, the former being motivated by fear of some sanction which occurs as an external stimulus and the latter being comprised of both the external element and an internal element whereby the subject feels a sense of duty to act or forebear.

Positivism

The approach to the study of law which considers the only valid laws to be those laws that have been ‘posited’, that is, created and put forward by human beings in positions of power in society. Generally, positivism rejects the attempt of Natural Law theory to link law to morality (see connection thesis).

Sanction

The formal consequence (usually negative or harmful) which is directed at, and normally follows from a specific act of a particular person or persons, where that act is regarded by society or some specific organ of society, for example, the State, as being a requisite condition for the consequence and a justification for the exertion by society or the State of some of its legitimate power against the person or persons.

Chapter 4

Discretion

In judicial decision-making, the supposition that judges, in making decisions in ‘hard cases’ – that is, cases where there is no clear rule of law which is applicable or where there is an irresolvable conflict of applicable rules – make decisions which are based on their own personal and individual conceptions of right and wrong, or what is best in terms of public policy or social interest, and that in so deciding they are exercising a quasi-legislative function and creating new law.

Empiricism

In legal philosophy, an approach to legal theory which rejects all judgments of value and regards only those statements which can be objectively verifiable as being true propositions about the nature of law. Legal empiricism is based upon an inductive process of reasoning, requiring the empirical observation of facts and the formulation of a hypothesis which is then applied to the facts, before an explanatory theory of legal phenomena can be postulated.

Formalism

In legal theory, the approach which seeks to minimise the element of choice in the interpretation of terms contained in legal rules and emphasises the necessity of certainty and predictability in the meaning of such rules. Legal formalists would advocate the attribution of specific meanings to certain terms from which the interpreter of a legal rule could not deviate, and require that such terms should have those same meanings in every case where the rule is applicable.

Realism

The philosophical approach which emphasises objectivity over sentiment and idealism in the investigation of phenomena. Realists generally argue that the perception of phenomena is an experience of objective things which are independent of the private –sense-data that we may initially hold. A meaningful analysis of the nature of law must therefore concentrate on the objective experience of the actual practice of the courts, rather than on some ‘rules’ which are supposed to guide the attitudes of judicial officials.

Rule

A statement formally specifying a required mode or standard of behaviour.

Chapter 5

Felicific calculus

Calculation used by utilitarian thought to weight the pleasure provided to most against the pain caused to some as the basis for legislation.

Harm principle

A principle formulated by J. S. Mill according to which “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

Panopticon

Institutional design aiming to maximise possibilities for the surveillance of inmates.

Principle of utility

Objective standard to measure what a good law is, bearing in mind that utility refers to the quality of an object or an action to produce a benefit and/or reduce pain.

Utilitarianism

The approach of moral philosophy which regards an act, measure or social or legal arrangement as being good or just if its overall effect is to advance the happiness or general welfare of the majority of persons in society. Utilitarianism is a goal-based approach to the problems of justice in the distribution of the benefits and burdens of society, in that it gives precedence to the advancement of the collective good or welfare, even if this may involve extinguishing or curtailing the rights and political or other liberties of the individual.

Total (classical) utilitarianism

where social and legal measures or institutions are regarded as just if their operation, on the whole, serves to maximise aggregate happiness or welfare.

Average utilitarianism

where social and legal measures or institutions are regarded as just if their operation, on the whole, serves to maximise average happiness or welfare per capita.

Act utilitarianism

where a specific act or measure is regarded as right if it will on the whole, have the best consequences.

Actual Rule utilitarianism

where an act or measure is regarded as right if it is permitted by a rule which, if generally followed, will on the whole have the best consequences.

Ideal Rule utilitarianism

where an act or measure is regarded as being right if it is permitted by a rule which, if generally followed, will on the whole have as good or better consequences than any other rule governing the same act.

Chapter 6

Affirmative action

This term refers to policies that take race, ethnicity, or gender into consideration in an attempt to promote equal opportunity or increase ethnic or other forms of diversity.

Contractarian

This applies to assertions or assumptions that human society is based upon a social contract, whether that contract is seen as a genuine historical fact, or whether it is hypothesised as a logical presumption for the establishment and maintenance of the ties of social civility.

Policy

A statement of a social or community goal aimed at some improvement of the social, economic or political welfare of the members of the group in general. As such, a policy may be pursued sometimes even though this would lead to a restriction of the rights of individuals.

Principle

As opposed to a policy, a statement or proposition which describes the rights which individuals may hold apart from those which are specified in the legal rules of a community.

Reverse discrimination

This term refers to discrimination against members of a majority group in order to promote members of a minority or consistently disadvantaged group.

Chapter 7

Dialectical

Dialectic is a debating method first used by Greek philosophers. It instrumentalises contradiction, or the exchange of arguments and counter-arguments respectively advocating propositions (theses) and counter-propositions (antitheses). At its most simplistic, the dialectical operation can be set out in this form: a thesis, which is an existing or established idea, is challenged by an antithesis, which is an opposite and contradictory idea. The outcome of the ensuing struggle between the thesis and the antithesis is a union and inter¬penetration of the two opposites, which constitutes the synthesis: a newer and higher form of idea, which contains qualitatively superior elements pertaining to the two opposites. The new synthesis, however, will inevitably be challenged by another, newer and opposite idea, and so the synthesis becomes the new thesis, with its antithesis being the new opposite. The continual repetition of this cycle of struggle and resolution constitutes the dialectic and results in development and change in all things.

Functionalism

For functionalism, societies are systems made up of interrelated parts which combine to fulfil the functions necessary for the survival of society as a whole. A functionalist interpretation of the law will therefore focus its analysis on the social functions fulfilled by law.

Materialism

In Marxist theory, the notion that changes and developments in human society are based on the material conditions of human existence. The two notions of dialectical materialism and historical materialism in Marxist theory are based on the assumption that there are ongoing associations and contra¬dictions between various social, technical, economic and political phenomena which determine the historical development of society.

Dialectical materialism

refers to the idea that contradictions in the material base of society and their inevitable resolution through transition to a newer and ‘higher’ mode of production with different economic relations of production are the driving force of society’s development.

Historical materialism

is the methodological approach to the study of society, economics, and history which was first articulated by Marx. The fundamental proposition of historical materialism can be summed up in a sentence: "it is not the consciousness of men that determines their existence, but, on the contrary, their social existence that determines their consciousness." (Marx, in the Preface to A Contribution to the Critique of Political Economy.) Historical materialism looks for the causes of developments and changes in human societies in the way in which humans collectively make the means to live, thus giving an emphasis, through economic analysis, to everything that co-exists with the economic base of society (e.g. social classes, political structures, ideologies).

Rationality

The ability to use one’s reason or mental faculties generally to evaluate alternative courses of action, to make choices in terms of one’s preferences, to set goals and to formulate efficient plans for the attainment of such goals.

Socio-legal studies

This approach is practical and is concerned with making better laws that work better and approximate to some ideal of justice, not with interpreting law as a social fact.

Sociological jurisprudence

This discipline studies society in order to identify the factors which determine the nature of law.

Sociology of law

This approach seeks to explain society through an investigation of law as a form of social control.

Chapter 8

Feminism

Feminism is a political discourse seeking to obtain equal rights for men and women, and the same degree of legal protection.

Patriarchy

This term refers to the structuring of families units around the figure of the father where the father is endowed with primary authority over other family members. By extension, patriarchy refers to a model of social organisation in which men take primary responsibility for all functions of authority. In such models men are the dominant figures in all fields of decision-making: social, economic, political, legal.

Chapter 9

Critical Legal Studies

In the narrow sense, CLS is a movement which originated in the US in the 1970s and is now more or less defunct. In the broad sense, CLS encompass a plurality of different critical perspectives on law which have been flourishing for over twenty years. All CLS perspectives share a wish to critique the traditional notions of legal objectivity and supposed neutrality of the law in order to reveal law as a murkier, much more morally ambivalent area than is usually acknowledged in classic legal discourse. What distinguishes CLS from more straightforwardly critical takes on law is that its many approaches import insights, concepts and methods devised by other disciplines such as aesthetics, literary criticism, psychoanalysis and philosophy into the critical study of the law.

Deconstruction

The deconstructive method is that of a close reading of text aiming to reveal the hidden or repressed meanings of an author by reintroducing less evident meanings of the terms used by the author.

Genealogy

This is a way of writing history which aims to show that developments which appear unavoidable from our vantage point (such as the prison, or CCTV) were in fact contingent and not at all inevitable.

Social constructionism

A sociological theory of knowledge which considers how social phenomena develop in particular social contexts. A social construct, even though it may seem self-evident to the participants of a given society, is in fact the invention of that society.

Structuralism

The term refers to various theories across the humanities and social sciences which share the assumption that structural relationships between concepts vary between different cultures/languages and that these relationships can be usefully exposed and explored. The main idea of structuralism is that the elements of a given structure only make sense in relation to each other.

Post-structuralism

is a reaction to structuralism, acknowledging the impossibility of fully representing the whole of reality through symbolic structures such as law and language.