TAMIL NADU NATIONAL LAW UNIVERSITY

(A University established under the Tamil Nadu Act No. 9 of 2012)

Dindigul Main Road, Navalur Kuttapattu
Tiruchirappalli 620 027
Tamil Nadu, India

B.A. LL.B. (H) / B.COM. LL.B. (H)

COURSE SYLLABUS

JURISPRUDENCE

Jurisprudence is a broad philosophical discipline which both clarifies as well as evaluates key legal
concepts, values and institutions. It forms the theoretical background that justifies Law, as well
as lays down the normative standards through which law can be tested. As such, it is a part of the
central core of legal education across law schools.

In the past few years however, the study of Jurisprudence has undergone a sea of change. Earlier,
Jurisprudence was taught out of standard textbooks like Salmond and Paton and was aimed at
training law graduates to “think like a lawyer” through an exposition of legal concepts as applied
by the courts. This approach, as per the legal theorist Ronald Dworkin, “produced only the
illusion of legal progress, and left the genuinely important issues of principle in the law
untouched”. Today, Jurisprudence has evolved into a more conceptual discipline which deals
with questions such as: ‘What is Law?’ ‘What is the connection between Law and morality?’ and
‘Is capital punishment justified?’ It seeks to ensure that law students truly understand the
philosophical basis of legal systems and the role of Law in society. This course adopts this latter,
more modern approach to studying jurisprudence. Structured around six fundamental issues in
legal theory - law, rights, causation, punishment, property and promises- this course will form the
theoretical foundations on which students can build upon the rest of their legal education.

Course Objectives

 To understand the definitional scope as well as the philosophical basis of key legal
concepts such as law, rights, causation, punishment, property and promises.
 To understand the connections between the theory of law and its professional practice,
and to apply abstract insights to real-world problems.
 To introduce students to key debates and ideological positions in legal theory; to
encourage them to evaluate and arbitrate between these positions.
 To encourage students to engage with theoretical texts and write critically about
philosophical issues

Learning Outcomes

By the end of the course students should be able to:

 Understand key legal concepts such as law, rights, causation, punishment, property and
promises and apply this to expand their understanding of other subjects in law school.
 Use the philosophical method to evaluate arguments in law, and be able to point out
specific fallacies.
  To write critical reflection pieces on any topic, through an abstraction of its ideas and
arguments.

Teaching Methods

The course will run every day from Monday to Saturday for 55 minutes.Students are expected to
come to class prepared to ask questions about what they have read, to evaluate the material, and
to express their own reasoned views on controversial issues.

The Point(s) of Jurisprudence MODULE 1

This introduction introduces the major trends, positions and schools of jurisprudence through a
close examination of Fuller’s classic thought experiment - the Speluncean explorers case. The
case will be used as an anchor for the course, to understand the most important problems in
legal theory and to elucidate jurisprudential concepts such as positivism, natural law, the
separation thesis and interpretation. Through it and the real case of R. v. Dudley and Stephens,
we will also illustrate the practical importance of legal theory, and the profound impact that one's
jurisprudential ideology can have on one's view of the law. At the end of this unit, we hope to
understand the point of studying jurisprudence as well as have a general indication about its
scope.

Introduction to Legal Theory: The Case of the Speluncean Explorers

Compulsory Readings:

1. Fuller, Lon. “The Case of the Speluncean Explorers”. Harvard Law Review 62.4
(1949): 616-645.
2. Eskridge, WN. “The Case of the Speluncean Explorers: Twentieth Century
Statutory Interpretation in a Nutshell”.
3. Suber, Peter. The Case of the Speluncean Explorers: Nine New Opinions. 1st ed.
London and New York: Routledge, 1998. pp. 33-54, 62-70, 77-88.
4. R v. Dudley and Stephens ( 1884) 14 QBD 273.
5. U.S. v. Holmes. Circuit Court, E. D. Pennsylvania. 26 F.Cas. 360 (1842)
6. Williams, Glanville. "A Commentary on R. v. Dudley and Stephens." Cambrian
L. Rev. 8 (1977): 94.

Additional Readings:

1. Kozinski, Justice, et al. "The Case of the Speluncean Explorers: Revisited."

Harvard Law Review 112.8 (1999): 1876-1923.
2. D'Amato, Anthony. "The Speluncean Explorers: Further Proceedings." Stanford
Law Review (1980): 467-485.
3. Shapiro, David L., and Lon L. Fuller. "The Case of the Speluncean Explorers: A
Fiftieth Anniversary Symposium Foreword: A Cave Drawing For The Ages."
Harv. L. Rev. 112 (1999): 1834-2025.

 The subject-matter of Jurisprudence

 Compulsory Readings:

1. Salmond, John William. “The Science of Jurisprudence” in Jurisprudence: Or the

theory of the law. Stevens and Haynes, 1907.
2. Bix, Brian. "Jurisprudence theory and context." (1996). Chapter 1 “Why
Jurisprudence”.
3. Nigel Simmonds, Central Issues in Jurisprudence, Introduction.
4. Pound, Roscoe. "The call for a realist jurisprudence." Harvard Law Review 44.5
(1931): 697-711.

Additional Readings:

1. Tur, R. H. S. "What is jurisprudence?." The Philosophical Quarterly (1950-)

28.111 (1978): 149-161.
2. Isaacs, Nathan. "The Schools of Jurisprudence." Current Legal Thought 2 (1935):
317.
3. Dias, Reginald Walter Michael. "Jurisprudence." (1976). Chapter 1.
4. Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law. Oxford
University Press, 2012. Chapter 1.
5. Dworkin, Ronald. Taking Rights Seriously. Harvard University Press. Chapter 1.
“Jurisprudence”.
6. Why should we study Jurisprudence?:“Purpose & Usefulness of Jurisprudence”
by Peter Wahlgren

Law MODULE 2

One of the most pressing issues evident from the Speluncean explorers case is the indeterminacy
of ‘Law’. What is ‘Law’ ? How do we differentiate “Law” from the orders of a thug to pay
ransom money or the prohibitions imposed on a child by a doting parent? A second issue
evident in the Fuller’s hypothetical is the problem of unjust and unfair laws. What is the
relationship between Law and Morality? Do we have a duty to obey amoral laws? Were the
persecution instruments enacted by the Nazi government “Law”? This unit deals with historical
and contemporary thought on both these issues. It also briefly introduces legal scepticism-
theories which argue that the attempt to understand the nature of law is either impossible,
illusory or incorrect.

What is Law?

 Law as Sovereign Command

Compulsory Readings:

1. John Austin, “The Province of Jurisprudence Determined” (extracts)

2. Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law.
Oxford University Press, 2012. Chapter 2,3.
Additional Readings:

1. R. Ladenson: “In Defense of a Hobbesian Conception of Law”, in

Philosophy and Public Affairs 9 (1980) 134
 2. Schauer, Frederick. "Was Austin right after all? On the role of sanctions in a
theory of law." Ratio Juris 23.1 (2010): 1-21.

 Law as a Historical Fact

Compulsory Readings:

1. Gale, Susan Gaylord. "A very German legal science: Savigny and the
historical school." Stan. J. Int'l L. 18 (1982): 123.
2. Robert E. Rodes, Jr., On the Historical School of Jurisprudence,
49 American Journal of Jurisprudence 165 (2004)

Additional Readings:

1. Harold Berman, The Historical Foundations of Law,

54 Emory Law Journal 13 (2005)
2. Von Savigny, Friedrich Karl. System of the modern Roman law. J.
Higginbotham, 1867.
3. Maine, Henry Sumner. Ancient law. Routledge, 2017.

 Law as Social Conduct

Compulsory Readings:

1. Pound, Roscoe. "Law in books and law in action." Am. L. Rev. 44 (1910): 12.
2. Ehrlich, Eugen, and Nathan Isaacs. "The sociology of law." Harvard Law
Review 36.2 (1922): 130-145.
3. David Nelken 'Ehrlich’s legacies: Back to the future in the sociology of law’,
in Marc Hertogh ed Living Law, Hart 2009 pp 237-272

Additional Readings:

1. Dennis Galligan, Law in Modern Society, OUP 2007 pp 6-19, 28-38 50–63.
2. Ehrlich, Eugene. Fundamental principles of the sociology of law. Transaction
Publishers, 1962.
3. Stone, Julius. "Social dimensions of law and justice." (1966).

 Law as a Hierarchy of Norms

Compulsory Readings:

1. Hans Kelsen, “What is the Pure Theory of Law?”

34 Tulane Law Review 269 (1960)

2. Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence,”

55 Harvard Law Review 44 (1941)

Additional Readings:

1. Kelsen, Hans. Pure theory of law. Univ of California Press, 1967.

  Law as a Union of Primary and Secondary Rules

Compulsory Readings:

1. Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law.
Oxford University Press, 2012. Chapter 5,6.
2. Dworkin, Ronald M. "The model of rules." The University of Chicago Law
Review 35.1 (1967): 14-46.

Additional Readings:

1. Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law.
Oxford University Press, 2012. Introduction. Postscript.
2. Shapiro, Scott J. "The ‘Hart-Dworkin’ debate: A short guide for the
perplexed." Ronald Dworkin 22 (2007): 49.
3. Dworkin, Ronald. Taking Rights Seriously. (Harvard University Press, 1978).
Chapters 2 & 3.
4. Coleman, Jules. ‘Beyond Inclusive Legal Positivism’, Ratio Juris, 22(3) 2009.
5. Dworkin, Ronald. "Hart's postscript and the character of political
philosophy." Oxford Journal of Legal Studies 24.1 (2004): 1-37.
6. Dworkin, Ronald. Law’s Empire. (Belknap Press, 1986).
7. Raz, Joseph. Practical reason and norms. OUP Oxford, 1999.
8. Gardner, John. "Some types of law." (2007).

 The Separation of Law and Morality


 The Hart- Fuller Debates

Compulsory Readings:

1. Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law.
Oxford University Press, 2012. Chapter 7.
2. Fuller, Lon L. "Positivism and fidelity to law: A reply to Professor Hart."
Harvard law review (1958): 630-672.

Additional Readings:

● Waldron, Jeremy. "Positivism and Legality: Hart's Equivocal Response to

Fuller." NYUL Rev. 83 (2008): 1135.
● Hart, Herbert Lionel Adolphus, and Leslie Green. The concept of law.
Oxford University Press, 2012. Postscript.
● Lacey, Nicola. "Philosophy, Political Morality, and History: Explaining the
Enduring Resonance of the Hart-Fuller Debate." NYUL Rev. 83 (2008):
1059.
● Cane, Peter, ed. The Hart-Fuller debate in the twenty-first century.
Bloomsbury Publishing, 2010.

 The Hart-Devlin-Dworkin Debates

Compulsory Readings:
 1. Devlin, Patrick Baron. Morals and the criminal law. Oxford: Oxford
University Press, 1965. (Extracts)
2. Hart, Herbert Lionel Adolphus, and Herbert Lionel Adolphus Hart. Law,
liberty, and morality. Stanford University Press, 1963. (extracts)
3. Dworkin, Ronald. "Lord Devlin and the enforcement of morals." The Yale
Law Journal 75.6 (1966): 986-1005.

Additional Readings:

1. Wasserstrom, Richard A. "Morality and the Law." (1971).

2. Devlin, Lord. "Law, democracy, and morality." University of Pennsylvania
Law Review 110.5 (1962): 635-649.
 Natural Law Theory

Compulsory Reading:

1. John Finnis, “Natural Law Theories,” The Stanford Encyclopedia of

Philosophy
2. John Finnis, Natural Law and Natural Rights, ch. I and pp. 426-436

Additional Reading:

1. John Finnis, “Foundations of Practical Reason Revisited,”

2. John Finnis, Natural Law and Natural Rights, chs. II, V-XII and pp. 437-476
3. Robert P. George, “Natural Law,” in American Journal of Jurisprudence,
Vol. 52 (2007)

 Legal Scepticism

 American and Scandinavian Legal Realism.

Compulsory Readings:

1. Oliver W. Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review
457 (1897)
2. Karl Llewellyn, “A Realistic Jurisprudence -- The Next Step,” 30
Columbia Law Review 431 (1930)
3. Alf Ross, “Tu-Tu,” 70 Harvard Law Review 812 (1957)

Additional Readings:

1. J.C. Gray, The Nature and Sources of the Law ( Extracts)

2. Lon L Fuller, “American Legal Realism,” 82 University of Pennsylvania Law
Review 429 (1934)

 Economic Analysis of Law

Compulsory Readings:

1. Lewis Kornhauser, “Economic Analysis of Law,” in StanfordEncyclopedia of

Philosophy.
 2. Cass R. Sunstein, “Behavioral Analysis of Law,” 64 University ofChicago Law
Review 1175 (1997)

Additional Readings:

1. Ronald Coase, “The Problem of Social Cost,” 3 Journal of Lawand

Economics 1 (1960)
2. Ehrlich, Isaac, and Richard A. Posner. "An economic analysis of legal
rulemaking." The Journal of Legal Studies 3.1 (1974): 257-286.

 Critical Legal Studies

Compulsory Readings:

1. Duncan Kennedy, “Legal Education and the Reproduction of Hierarchy,” 32

Journal of Legal Education 591 (1982)
2. John Finnis, “On ‘The Critical Legal Studies Movement,’” 30 American
Journal of Jurisprudence 21 (1985)

Additional Readings:

1. Frank, Jerome. Law and the modern mind. Transaction Publishers,

1930.(excerpts)
2. Mark Tushnet, “Defending the Indeterminacy Thesis,” 16 QLR [Quinnipiac
Law Review] 339 (1996)
3. Unger, Roberto Mangabeira. The Critical Legal Studies Movement: Another Time,
A Greater Task. (Verso Books, 2015). (Excerpts)
4. Morton J. Horwitz, “Rights,” 23 Harvard Civil Rights-Civil Liberties Law Review
393 (1988)

 Feminist Legal Theory

Compulsory Readings:

1. Martha L. A. Fineman, “Feminist Theory and Law,” 18 Harvard Journal of Law

& Public Policy 349 (1995)
2. Catharine A. MacKinnon, “Reflections on Sex Equality Under Law,” 100
Yale Law Journal 1281 (1991)
Additional Readings:

1. Christine A. Littleton, “Equality and Feminist Legal Theory,” 48 University of

Pittsburgh Law Review 1043 (1987)
2. Fineman, Martha Albertson. "Feminist Legal Theory." (2005).

Rights MODULE 3

One of the concepts invoked by Justice Tattling in the Speluncean Explorers case is the “Right”
to life. “Rights” are often used to limit the power of the Law over an individual. For example,
one might say that the State cannot make a law asking me to be silent, since it violates my ‘Right’
to free expression. This unit explores the meaning and basis for the concept of rights. Starting
with Hohfeld’s classical exposition of the language of rights- this unit clarifies key issues in
understanding ‘Rights’ - What are Rights? What is their purpose? Are rights ‘given’ or are they
‘inherent’? How do we justify “exceptions” or “restrictions” to rights?

 The Form of Rights

Compulsory Readings:

1. Hohfeld, Wesley Newcomb. "Some fundamental legal conceptions as applied in

judicial reasoning." The Yale Law Journal 23.1 (1913): 16-59.
2. Hohfeld, Wesley Newcomb. "Fundamental legal conceptions as applied in
judicial reasoning." The Yale Law Journal 26.8 (1917): 710-770.

Additional Readings:

1. Arvind P. Datar, Hohfeldian Analysis- Application of, by the Indian Judiciary: A

lawyer’s Perspective, 21 SCC(weekly)
2. Thomas D. Perry Paradigm of Philosophy: Hohfeld On Legal Rights
3. Allen Thomas O‟Rourke, Refuge from a jurisprudence of doubt: Hohfeldian
analysis of constitutional law

 The Function of Rights

Compulsory Readings:

1. Kramer, M., Simmonds, N., and Steiner, H., 1998, A Debate Over Rights,
Oxford: Oxford University Press. Introduction. “The Modern Will Theory”,
“The Interest Theory of Rights”.

Additional Readings:

1. Kramer, M., and Steiner, H. 2007, “Theories of Rights: Is There a Third Way?”,
Oxford Journal of Legal Studies, 27: 281–310.
2. Van Duffel, S., 2012, “In Defense of the Will Theory of Rights”, Res Publica, 18:
231–31.
3. MacCormick, N., 1977, “Rights in Legislation”, in Hacker, P., and Raz, J. (eds.),
Law, Morality and Society: Essays in Honour of H.L.A Hart, Oxford: Oxford
University Press, 1977, pp. 189–209.

 Nature of Rights
Compulsory Readings:

1. Joseph Raz, The Morality of Freedom, Ch: 7 The Nature of Rights, (also
published in Mind, 1984).
2. Waldron, J., (ed.), 1984, Theories of Rights, Oxford: Oxford University Press.
Introduction.
3. Wenar, Leif (2005). “The Nature of Rights”, Philosophy and Public Affairs, 33:
223–252.
Additional Readings:

1. Hart, Herbert LA. "Are there any natural rights?." The Philosophical Review
 64.2 (1955): 175-191.
2. Dworkin, Ronald M. (1981). “Is there a Right to Pornography?”, Oxford Journal
of Legal Studies, 1: 177–213
3. Wellman, Carl (1985). A Theory of Rights, Totowa, NJ: Rowman & Allanheld.
4. Steiner, Hillel. "An essay on rights." (1994).
5. Singer, Joseph William. "The legal rights debate in analytical jurisprudence from
Bentham to Hohfeld." Wis. L. Rev. (1982): 975.

Crime and Punishment MODULE 4

This unit deals with two issues which are central to the Speluncean Explorers case. Firstly, we
look at whether the explorers caused and were responsible for Whetmore’s death? We look at what
does it really mean to cause, and be responsible for a crime. Are insane individuals responsible for
their actions? Are children? Does failure to prevent a crime, cause a crime? In the second part,
we explore the question: if the explorers were responsible, should they be punished? Why should
there be punishment for a crime? How much punishment should be given for a particular crime?

 Crime Causation and Criminal Responsibility

Compulsory Readings:

1. Hart, Herbert Lionel Adolphus, and Tony Honoré. Causation in the Law. OUP
Oxford, 1985. Introduction. Conclusion.
2. Foucault, Michel, Alain Baudot, and Jane Couchman. "About the concept of the
“dangerous individual” in 19th-century legal psychiatry." International journal of
law and psychiatry 1.1 (1978): 1-18.
3. Fine, Cordelia, and Jeanette Kennett. "Mental impairment, moral understanding
and criminal responsibility: Psychopathy and the purposes of punishment."
International Journal of Law and Psychiatry 27.5 (2004): 425-443.

Additional Readings:

1. Strawson, Peter F. "Freedom and resentment." (1963).

2. Watson, Gary. "Responsibility and the Limits of Evil: Variations on a
Strawsonian Theme."." The Philosophy of Free Will: Essential Readings from
the Contemporary Debate (2013): 84-113.
3. Honoré, Antony M. Responsibility and fault. Bloomsbury Publishing, 1999.
4. Hart, Herbert Lionel Adolphus. Punishment and responsibility: Essays in the
philosophy of law. Oxford University Press, 2008.
5. Brink, David O., and Dana Nelkin. "Fairness and the Architecture of
Responsibility." (2013).
6. Ernest J Weinrib, Causal Uncertainty, Oxford Journal of Legal Studies (Spring
2016) 36 (1): 135-164.
7. Puppe, Ingeborg and Wright, Richard W., Causation in the Law: Philosophy,
Doctrine and Practice in Marta Infantino and Eleni Zervogianni eds., The
Common Core of European Private Law: Causation (Cambridge University
Press, 2016)
 Punishment
 Compulsory Readings:

1. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation,

ch. 1, sections I and II, and chs. 13 and 14
2. Immanuel Kant, The Metaphysics of Morals (Cambridge U. Press edition, 1991),
pp. 140-144
3. Duff, Antony. Punishment, communication, and community. Oxford University
Press, USA, 2001. Introduction.

Additional Readings:

1. Ehrlich, Isaac. "Crime, punishment, and the market for offenses." The Journal
of Economic Perspectives 10.1 (1996): 43-67.
2. David Dolinko, “Retributivism, Consequentialism, and the Intrinsic Goodness
of Punishment,” Law and Philosophy. Vol. 16 (1997), pp. 507-528
3. Becker, Gary S. "Crime and punishment: An economic approach." The
economic dimensions of crime. Palgrave Macmillan UK, 1968. 13-68.
4. Menninger, Karl. "The crime of punishment." (1968).
5. Ehrlich, Isaac. "The deterrent effect of capital punishment: A question of life
and death." (1973).
6. Michael S. Moore, “Justifying Retributivism,” Israel Law Review, Vol. 27 (1993)
pp. 15-49

Property and Promises MODULE 5

The final unit of the course looks at questions of private law- namely property and promises. In
the first module, we look at the meaning of property, and explore the justifications of state
protection of private property. We hope to answer the questions: What is property? Why should
property be protected by law? And who is the ‘owner’ of a property? In the second module, we
return to the Speluncean explorers case to understand the issues of promises. Is Whitmore's
promise binding on him? Why do we obey past promises? What is justification of enforcing
contracts?

 Property

Compulsory Readings:

1. Paton, George Whitecross. "A textbook of jurisprudence." (1972). “Property and

Ownership”.
2. Penner & Smith (ed.), The Philosophical Foundations of Property Law, (OUP
2014), Introduction
3. Hardin, Garrett (1968), ‘The Tragedy of the Commons,’ Science, 162: 1243–8

Additional Readings:

1. Penner, James E. The idea of property in law. Oxford University Press, 1997.
Introduction. Chapter 4,10.
2. Merrill, Thomas W., and Henry E. Smith. "What happened to property in law
and economics?." The Yale Law Journal 111.2 (2001): 357-398.
3. Hart, Oliver, and John Moore. "Property Rights and the Nature of the Firm."
Journal of political economy 98.6 (1990): 1119-1158.
 4. Waldron, Jeremy. "The right to private property." (1990).
5. Hughes, Justin. "The philosophy of intellectual property." Geo. LJ77 (1988):
287.
6. Murphy, Roberts & Flessas, Understanding Property Law, (Sweet & Maxwell
2004), excerpts
7. Demsetz, Harold. "Toward a theory of property rights."
8. Waldron, Jeremy. "Property, Justification and Need." Canadian Journal of Law
& Jurisprudence 6.2 (1993): 185-215.

 Promises and Contracts

Compulsory Readings:

1. Jody Kraus, Philosophy of Contract Law, in Jules Coleman, Kenneth Himma

and Scott Shapiro (eds.) The Oxford Handbook of Jurisprudence and
Philosophy of Law, (OUP 2004)
2. Scanlon, Thomas. "Promises and practices." Philosophy & Public Affairs (1990):
199-226.

Additional Readings:

1. Jones, D. H., 1966, “Making and Keeping Promises”, Ethics, 76: 287–296.
2. Raz Joseph, 2012, “Is there a Reason to Keep Promises”, No. 12-320, Research
Paper Series, Columbia University Public Law & Legal Theory, Columbia Law
School.
3. Zvi H. Triger, For the Love of Contract, 51 Tulsa L. Rev. 407 (2015)
4. Habib, Allen. "Promises." (2008).
5. Gregory Klass, George Letsas, Prince Saprai, Philosophical foundations of
Contract Law (OUP 2014), excerpts
6. Owens, David, 2006, “A Simple Theory of Promising”, Philosophical Review,
115(1): 51–77.

*****