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Welcome to the course

What do you do when the law runs out? Jurisprudence is the study of the theory behind the law. Dr Kenneth Ehrenberg explains the value of legal theory
Hi. I’m Ken Ehrenberg. I am a Reader in Public Law and Legal Theory at the University of Surrey, and I’m going to be your lead educator for week one for this course in jurisprudence. Jurisprudence is really the theory behind the law. It’s the big questions of law. Why do we have law? What is its nature? What is its relation to morality, and how do we understand the way in which it governs us? So one question you might ask is, why should I even bother with that? I mean, isn’t law about learning the rules, learning when am I going to go to gaol if I do something wrong? When do I have to pay my taxes?
What happens if people get into accidents and they have to sue each other? What happens if I make a contract and I have to break the contract? What’s going to happen to me? A lot of those rules are what you might call “black letter rules,” and that is a lot of what you learn in law school. So you might say, well, once I learn all those black letter rules, that’s what I need in order to help my clients. So why do I need this theory stuff at all? The answer is twofold. First of all, I think it’s just interesting to focus on the most fundamental questions of our social arrangements. Right?
The law is basically one of the most important things about how society is arranged. Yes, we have morality. Yes, we have culture and society. But the law is, in a sense, the written structure of how people interact with each other– the rules that govern the way in which they interact with each other that are written down and are being prepared to be enforced by the state, for example. So it’s just interesting to focus on those questions. What’s the relationship between law, for example, and morality? Right? People have deep disagreements about morality, but the law requires us to agree or to impose certain views on others. Usually, we’d think it’s better not to impose our moral views on others.
But sometimes, we just have to in order to be able to get along and that’s what the law makes us do. The law is a way of settling those disputes at least for the time being in saying, look, these are the rules that we’re going to follow. Practically speaking, however, there’s another important reason to study the theory behind the law. If you’re thinking about doing legal practise, becoming a solicitor or a barrister or a lawyer, theory is essential to becoming a good lawyer in order to know what to say when the law runs out.
Eventually, as you practise law, you’ll find yourself in a situation where the law doesn’t speak to you or what you’re trying to advise your client to do. There might be conflicting laws, and you don’t know what the right thing to do is. Or the law might simply run out. There might just be no law on what the client is proposing to do. That doesn’t mean that it’s necessarily allowed. If there’s no law at all governing it, then whatever the client wants to do is fine.
But there might be some law that suggests somehow that the client is on the wrong foot or might be in trouble, but it’s not so clear by looking at the rules in the cases that it definitely applies to your client. And so when you have to make an argument, what do you do when the law runs out? When that happens, bad lawyers have nothing more to say. Bad lawyers are the kinds that just learn the rules. They run out of things to say when they can’t figure out whether the rule applies or not to their situation. Good lawyers turn to theory or jurisprudence to argue why the law should be understood in the way that is good for their clients.
Right? So when the law runs out, you have to say, this is the best way forward. And the way to argue to a judge or to somebody else that this particular way with your client is the best way forward is to say specifically that the theory behind the law is what is pushing us in that direction. That’s why theory is such a good practise for lawyers to learn about. Now, this course aims to teach a mode of legal thinking and intellectual curiosity to help understand these issues. You’re going to take some examples. Some of the examples are going to be about the nature of law and its relation to morality directly.
Some will be about more kind of practical issues and things like that. But the idea is for you to get used to these kinds of theoretical arguments about the law so that, when you go to practise law, you’ll be able to make them. We’re going to have five topic areas I myself will cover in week one. This week, I’m going to cover the relationship of law and to morality and what that does for legal validity. In week two, you’ll hear from Dennis Patterson. He’s going to give a week of lectures titled “Guilty Minds, neuroscience, and Responsibility.”
So that’s going to be about how the new developments in neuroscience, which is the study of the brain, can tell us things about how and when people are responsible and when we should be holding them responsible. In week three, you’ll hear from Professor Veronica Rodriguez-Blanco. She’s going to ask, why should I be responsibility for my inadvertent action? A lot of law is dealing with people who make mistakes. Sometimes, those people make mistakes and are held criminally responsible for those mistakes. Other times, they just get sued and the law says they’re still at fault. So the law is holding these people responsible. The question is, if you’re just making a mistake, why should the law be holding you responsible?
In week four, you’re going to hear from Dr. Chris Taggart about law and economics. That’s the theory that law is best understood as a way to incentivize behaviour, so the law manipulates the costs and benefits of the actions that you want to undertake and in order to try to get you to do what, let’s say, the government wants you to do or the legal system thinks is the best. Right? So it’s trying to get everyone to behave in an efficient and rational manner. And if that’s what we’re thinking about the law, then maybe it’s not about justice and morality at all. So that’s something that he will cover. And in the final week, Dr.
Hrafn Asgeirsson will cover law and contemporary social issues. Some examples he might cover are things like body modification and sexual harassment in the workplace, so he’s going to talk about how theorising these things and theorising about how the law deals with these things can help us to have those critical understandings that we need in order to be able to engage with the law in a productive way. I hope you enjoy these lectures.

What do you do when the law runs out?

Jurisprudence is the study of the theory behind the law. You might wonder, ‘Why bother with the theory behind the law? As long as you learn all of the rules, you know the law and can do your job as a lawyer.’ But you’d be wrong. Rules are written generally and vaguely. It’s not always clear how they apply to a given situation, especially one that hasn’t been seen before. When the law runs out (when you can’t see clearly how the rule applies), bad lawyers run out of things to say; good lawyers use the theory behind the law to argue how it should be applied to the new situation. This is what jurisprudence can help you with.

Unlike other courses in law or other disciplines, this course is not telling you what to believe or giving you a list of rules or cases to memorise. It is instead teaching you a way to think about the law that will be useful in being able to assess arguments in law and about the law.

What we will cover

Week 1

You will consider the relationship between law and morality. Do laws have to be moral in order to count as law? If not, what is the best way to understand the dependence of law upon morality?

Week 2

You will look at what brain science can teach us about responsibility in the law. You might wonder how that’s a theoretical issue. The question is whether what we are learning about the brain is being used correctly to change our understanding of responsibility in the law.

Week 3

You will learn more about how the law addresses personal responsibility. This time, the question is about whether it is appropriate for the law to hold you responsible for some actions you make inadvertently, when you are distracted, careless, or forgetful.

Week 4

You will learn about how some theorists look at the law through an economic lens. Specifically, they understand the law in terms of how it creates incentives for people to act in ways that are deemed socially desirable. In doing so, you will also address the question whether this is a good approach to thinking about the law.

Week 5

You will take a look at two contemporary social issues – consent to bodily harm and sexual harassment – both of which raise interesting questions about the law. Consent to bodily harm raises the question of the proper limits of the law. On the other hand, sexual harassment raises the issue of what it takes to make sure that the law adequately protects us from harm. You will look at the theoretical issues behind these themes, but you’ll also see how theory relates to practice and the value of theorising.

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Jurisprudence: Introduction to the Philosophy of Law

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