76008 Jurisprudence
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Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70311 Torts OR ((76006c Public International Law OR 70108c Public International Law) AND 70110 Introduction to Law))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
This subject deals with theoretical questions that are relevant to an understanding of the notion of law. It considers theoretical answers to questions such as: What is law? What is the purpose of law? The subject explores questions that, whilst ancient, continue to have relevance today: Is there a higher law than state made law? What if the law tells us to do something wrong? Should we obey a bad law? The subject engages with different philosophical approaches including sociology, feminism, deconstruction, and law and literature. These different approaches ask different questions and give different answers. These theories are compared and considered in the context of current legal issues.
The subject also provides students with skills to understand and critically apply theory. Theory is essential to the law. Theory gives a way of thinking about issues differently. This is particularly important when a legal problem appears to be insurmountable. Theory offers the possibility of imagining the world differently.
Students apply skills of analysis, research, communication and critical thinking – learning to not only evaluate and synthesise information, but also to critique legal and academic arguments. Students engage in a rigorous process of reading and discussion that includes some of the most fascinating and thought provoking philosophy, jurisprudence, as well as judgments and other legal documents and legal events. Students develop their capacity to communicate understanding of the concepts and critiques of the materials by presenting their ideas in seminars and through written assessment.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Analyse and evaluate a range of approaches of jurisprudence. |
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| 2. | Identify, analyse and synthesise jurisprudential questions and insights about the law and apply these to complex practical issues. |
| 3. | Develop and apply skills to hear and engage with other points of view with respectful attitudes. |
| 4. | Locate and synthesise legal and interdisciplinary research relevant to legal issues in order to creatively and analytically evaluate the factual, legal and theoretical issues. |
| 5. | Construct clear, original and persuasive written and oral arguments that are supported by research and textual readings. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (4.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Contribution to the development of graduate attributes
This subject will assist students to develop graduate attributes of critical analysis and evaluation (GA 3), research skills (GA4), and communication and collaboration (GA 5). Students will undertake class activities to practise their development of these attributes, and will complete a range of assessment tasks designed to assess their attainment of the identified attributes.
Teaching and learning strategies
Strategy 1 Preparing for class activity
Students read prescribed materials from the textbook posted on UTSOnline prior to coming to class. Information about each topic will be provided on UTSOnline. Prior to some classes, questions are posted on UTSOnline to focus students’ attention and prepare them for discussion. Students will be required to think about their answers to these questions prior to coming to class. Additional readings are available on UTSOnline if students wish to pursue particular theories further. Students use the UTSOnline Discussion Board to ask questions or share ideas prior to the class. Students are advised to exercise patience when reading the prescribed texts as these readings may contain ideas you have never come across before and may additionally be presented in a style to which you are unaccustomed. Take your time and allow yourself the opportunity to understand what an author is arguing.
Strategy 2 Engaging in seminars
Classes involve presentations by the seminar leader and students of theoretical approaches drawn from the readings. In these seminars the leader asks questions of the students to ensure understanding of the theory. Students discuss the implications of particular theories in response to specific legal issues and critical analysis of theoretical approaches in small groups and as a class. Students demonstrate understanding of the prescribed readings through class discussions, and also seek clarification for difficult issues. Students have the opportunity to ask questions of their peers and of the teacher to assist them in consolidating their own learning. Students also gain depth of understanding through application of theories to specific issues. Each seminar focuses initially on understanding the theories, and then critically analyses the theories in relation to specific issues. By engaging in seminar discussion students develop a conceptual and analytical understanding, of philosophy and jurisprudence. Students build on their preparation and engagement in seminars by formulating and debating interpretations of the theories, as well as relevant legal, cultural and historical contexts.
The seminar leader models critical thinking, including the development of argument and close textual analysis. Seminars cover theories and consider how they articulate and/or apply to the law. The theories are applied to legal issues – ranging from historical issues such as the Holocaust to contemporary issues. The aim is to understand theory sufficiently to apply it to a legal issue, and then to critically evaluate that legal issue and/or the theory. Students are encouraged to offer their opinions and ask questions during seminars, and are asked to answer questions about the theories in order to develop their understanding of the relationship between these theories and legal issues. The structure of the seminars models the analytic, critical and methodological skills that students develop throughout the subject by outlining the theory, identifying issues and critically applying the theory to these issues. Students may undertake research in class of a particular issue in order to add depth to class discussion and analysis by sharing available computer resources and texts. Students are encouraged to ask questions and make comments during the seminars, and are also asked to demonstrate their understanding and mastery of key concepts. The class discussions allow students to gauge how successful they have been in their critical reading, by testing their knowledge and learning from others.
Strategy 3 Preparation and support for writing theoretical essays
As part of the assessment students undertake a short and a long essay. The short essay is due early in the semester on a specific question. The aim of the essay is to encourage students to read a legal judgment from a critical theoretical perspective. In week 3, prior to the due date of the assessment, we undertake an application of theory in class. This involves identifying the separate elements of a specific theory, discussing examples of that theory, and then breaking into small groups to apply the theory to an issue. This gives students an opportunity to understand how to undertake a theory-based analysis of an issue, and to receive oral feedback from the seminar leader and other students about the efficacy of particular strategies and approaches. Students then apply these skills in the written short assessment. This provides the opportunity for feedback on how to write essays using a theoretical framework.
A seminar is devoted to the art of writing a research essay – this includes research approaches and an analysis of the construction of argument. As part of this class students evaluate each others’ abstracts for their research papers, offering a further opportunity for collaborative learning. The final essay requires in depth analysis of a particular theorist(s) applied to a specific legal issue. This requires research of that particular theorist and issue, and also communication of understanding and critical evaluation and application of the theory.
Towards the end of the semester a class is devoted to a contemporary legal issue. Students are expected to have read the prescribed readings prior to coming to class. They break into small groups to discuss which theories they think would yield the best critical insights into that contemporary legal issue and develop a theoretical analysis of the issue. They then present their analysis to the class. This provides an opportunity to evaluate their engagement with the theory and their critical application of the theory to the legal issue. Students provide feedback to each other on which arguments they think work best and whether different examples could be used. Part of using theory effectively is to ensure that it helps ask interesting questions and/or give interesting answers. This seminar provides students with an awareness of how much they have learned in the subject and the ability of theory to provide critical understanding of legal issues. These skills can then be applied in the research essay.
Strategy 4 Applying research skills
Students undertake independent research relevant to class discussion and assessment tasks. Class discussion is based on a list of readings, some of which students are required to locate using the UTS Library and databases. The research essay requires students to identify and research a relevant legal issue, appropriate theory and secondary material on their own. Being able to use the library and legal databases to find relevant material is a key skill for a legal professional. Critical reading and analysis of judicial and scholarly material are also crucial skills in law. In this way, students develop and refine skills in identifying and synthesising relevant material and deploy it to make reasoned, logical, justifiable and persuasive written and oral arguments. They apply these skills in the written assessment tasks and receive further feedback (see below).
Strategy 5 Field Trip
This field trip to the Sydney Jewish Museum demonstrates the relevance of theory to practical issues. Legal philosophy changed and developed as a consequence of the Holocaust. Prior to visiting the museum we examine theories that developed in response to the Holocaust. Students are shown around the museum, listen to a Holocaust survivor speak about their experiences and hear a lecture about the Holocaust. Students have an opportunity to ask questions about the Holocaust and various theories. The museum provides historical context and detail about the Holocaust and an opportunity for students to think critically about the theories we considered prior to coming to the Museum. The more readings students undertake prior to going to the Museum the more they benefit from the visit.
Strategy 6 Feedback
Detailed guidance as to the assessment criteria and the provision of timely feedback are an important part of the learning process.
Students receive ongoing feedback in seminars from the seminar leader as well as their peers. Students should be using class participation as a means to test their understanding of theories and their critical application of these theories to various legal examples. This feedback is available to students from week 1 and provides opportunities to develop their capacity to present oral arguments. In week 3 a class is devoted to analysing the component parts of a theory and applying the theory to different legal issues. This provides students with oral feedback about their ability to construct an effective argument using theory. Students receive written feedback on the short essay due early in the semester via UTSOnline. Feedback provides students with the opportunity to reflect upon and develop their ability to construct an effective argument, write clearly and persuasively and communicate complex concepts. Students further develop these skills in the process of writing of the final essay. Students also receive written feedback on their final essays via UTSOnline to improve their research essay writing for the future.
Subject Delivery
Teaching will be based on weekly class seminars of 3 hours.
Content (topics)
- Introduction
- Natural Law
- Positive law
- Antigone
- Obedience Theory
- American Realism
- Critical Realism
- Sociological Jurisprudence
- Feminism
- Post-structuralism
Assessment
Assessment task 1: Class participation
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 5 This task contributes specifically to the development of the following graduate attributes: 5.0 |
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| Weight: | 20% |
| Length: | 1000 (equivalent) |
| Criteria: |
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Assessment task 2: Short Essay
| Intent: | The aim of this short essay is to provide students with an opportunity to read a legal judgment from a different perspective. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 5 This task contributes specifically to the development of the following graduate attributes: 3.0, 4.0 and 5.0 |
| Weight: | 20% |
| Length: | Maximum of 1,000 words |
| Criteria: |
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Assessment task 3: Major Essay
| Intent: | The essay is linked to objectives and learning strategies three and four. The essay requires students to consider specific theorists in depth through a process of class discussion and research, and to critically evaluate those theories through application to a practical issue, and communicate these ideas in an essay. |
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| Objective(s): | This task addresses the following subject learning objectives: 3 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0, 4.0 and 5.0 |
| Weight: | 60% |
| Length: | 3000 words |
| Criteria: |
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Required texts
The prescribed text for this subject is:
- MDA Freeman, Lloyd’s Introduction to Jurisprudence, 9th Edition, Sweet and Maxwell, London.
This book is available at the Co-op bookstore and at the library. We will rely heavily on the text in the first half of the course, but towards the end of the semester we will be reading materials that I will distribute in classes.
You will also need to read:
- Sophocles, The Three Theban Plays (particularly Antigone) (read for week 3) Schlink,
- The Reader (read for week 4) – OR you may also watch the video.
These books are available at the library for loan and in all good bookstores.
Recommended texts
- Hilaire Barnett, Sourcebook on Feminist Jurisprudence, (Routledge, 2012)
- Sandra Berns, Concise Jurisprudence, (Federation Press, 1993)
- Katherine Biber, Captive Images: Race, Crime, Photography, (Routledge, 2007)
- Brian Bix, Jurisprudence: Theory and Context, (Sweet and Maxwell, 1996)
- Cheah et al (eds.), Thinking Through The Body of The Law, (Allen and Unwin, 1996)
- Penny Crofts, Wickedness and Crime: Laws of Homicide and Malice, (Routledge, 2014)
- Margaret Jane Davies, Asking the Law Question (Law Book Company, 2008)
- Reginald Dias, Jurisprudence, (Butterworths, 1985)
- Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (Psychology Press, 2003)
- Dworkin (ed.), The Philosophy of Law, (Oxford University Press, 1977)
- Ellen Goodman, The Origins of the Western Legal Tradition - From Thales to the Tudors, (Federation Press, 1995)
- J.W. Harris, Legal Philosophies, (Butterworths, 1997)
- Nicola Lacey, Unspeakable Subjects, (Oxford Press, 1998)
- Wendy Larcombe, Compelling Engagements: Feminism, Rape Law and Romance Fiction, (Federation Press, 2005)
- Marett Leiboff and Mark Thomas, Legal Theories: Context and Practices, (Lawbook Company, 2009)
- A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, (Butterworths, 1998)
- H. McCoubrey, N.D. White, Textbook on Jurisprudence, (Blackstone Press, 1999)
- William P. MacNeil, Lex Populi: The Jurisprudence of Popular Culture (Stanford University Press, 2006)
- Desmond Manderson, Courting Death, (Pluto Press, 1999)
- Desmond Manderson, Songs Without Music, (University of California Press, 2000)
- Desmond Manderson, Proxmity, Levinas and the Soul of Law, (McGill University Press, 2006)
- Wayne Morrison, Jurisprudence: From the Greeks to Postmodernism, (Cavendish Press, 1997)
- Patrick Parkinson, Tradition and Change in Australian Law, (Law Book Company, 2013)
- Suri Ratnapala, Jurisprudence, (Cambridge, 2009)
- J.G. Riddall, Jurisprudence, (Butterworths, 1991)
- Margaret Thornton (ed.), Public and Private: Feminist Legal Debates, (Oxford University Press, 1995)
- Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, (Oxford University Press, 2009)
- Ian Ward, An Introduction to Critical Legal Theory, (Cavendish Press, 2000)
- Alison Young, Judging the Image: Art, Value and Law, (Psychology Press, 2005)
