Jurisprudence Report 2022 B

Examiners’ reports 2022
LA3005 Jurisprudence and legal theory – Zone B
Introduction
Jurisprudence is assessed by an essay-based examination. Part A consists of the
Set Case to which three theoretical perspectives on law are to be applied to the
specific case known in advance. Part B has a selection of questions relating to
theories studied on the module.
There is no precise ‘right answer’ in Jurisprudence. Instead, an excellent First Class
answer in Jurisprudence involves the strength and quality of the argument, the
control over language that the candidate demonstrates, showing command of the
relevant subject matter, and the structure of the answer. Direct reference to the
specific question asked is important with a clear Introduction at the beginning of the
answer demonstrating the direction the answer will take. Does the essay answer
identify the key words and point of the question? Is the material contained in an
argument directed at those key words and point? Is the student voice consistent?
The examiner needs to know that the candidate is writing in their own voice with
originality in answering the questions.
Examinations were again conducted with the examination paper available online
(via the VLE). Students should consider the effect on examiners marking typed
answers:
• The answers are much easier to read, which has the effect of magnifying
issues with the structure of answers. For example, some answers appeared
pre-planned and barely addressed the precise words of the actual question
asked.
• Reading a typed answer makes apparent mistakes in English and spelling
mistakes, including those of key writers, glaringly obvious. Note: it is
Dworkin not Dworking, and it is Kelsen, not Kelson, and so forth. The
examiners must question the command of the candidate and ownership of
the answer if the candidate cannot spell the name of the writer discussed
correctly, even when the question has the correct spelling.
Presentation is important. There is nothing wrong with preparing material for your
answers. Properly referenced quotations from key writers are good and expected,
as are properly referenced opinions of other academic commentators. The key
element is to ensure that they are part of an argument addressed to the words and
points of the actual question asked. You should explain in an introduction how you
interpret those words and points so that the examiner knows what angle you have
taken to answer the question. Many essays were interesting and well written,
showing engagement with the relevant materials.
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Comments on specific questions
PART A (The Set Case)
Questions 1–3 are about the Set Case Director of Public

Prosecutions v Ziegler and Ors [2021] UKSC 23.
Question 1
How are liberal rights of the protesters and participants of the arms fair
addressed in the Set Case?
General remarks
This question focused on the rights of individuals with very different interests:
protesters seeking to prevent people attending an arms fair and individuals seeking
to participate in it. What role does law play in a liberal democracy in addressing
these conflicting positions and how ought it to address them?
Law cases, reports and other references the examiners would expect you to use
The relevant chapter in the Guide on liberalism and law, all related materials
mentioned there and the Set Case. Students could also refer to Dworkin’s, Hart’s
and Raz’s liberalism.
Common errors
Involved answers that were quite descriptive with a little on the case and a little on
the theory but not much connection between them. As always, generic so-called
model answers are unimpressive and to be avoided.
A good answer to this question would…
Have a clear introduction, setting out how candidates will answer the question
asked and how this relates to that question. They would demonstrate excellent use
of relevant materials and the Set Case and analytically weave these together in the
student’s own voice with a clear structure. They could question the purpose behind
the action – protesting against the arms trade and the harm it does vis a vis
participating in an activity that is economically beneficial in many people’s eyes, has
potential to cause harm, yet could arguably be seen as producing a deterrent to
conflict depending on who has the arms.
Poor answers to this question…
Described the Set Case with little analysis and lacking in use of theories or the
reverse.
Student extract
Consider the following piece of writing:
John Stuart Mill in his essay On Liberty expressed that ‘The only purpose for
which power can rightfully be exercised over any member of a civilized
community against his will is to prevent harm to others’. Taken literally, noone
actually incurred physical harm from the facts of the case. However, should
the term 'harm' be given a wider meaning it could include the nuisance and
temporary loss of freedom to drive along that specific road. Power or
authority here was exercised to remove the protesters obstructing the slip
road.
Hart's take on Mill's statement, is also important, in that the saying becomes
'to prevent people interfering with the freedom of others'. The protesters were
interfering with the freedom of the drivers, however another element to be
balanced in the equation is the freedom of the protesters to obstruct that road
2
for their endeavors. The courts considered whether the loss of freedom of the
drivers, was severe or important enough to justify the interference with the
rights…
Comments on extract
This is a solid piece of writing. The candidate has attempted to answer the question
and referred to the relevant theories of Mill and Hart. The full answer seeks to
interweave their reflection and convey their knowledge with analysis of aspects of
the Set Case.
Question 2
‘The Set Case demonstrates how there are many similarities between modern
natural law and modern legal positivism.’
Discuss.
General remarks
This is a difficult question and requires active engagement with the materials in the
Guide and interconnection with the Set Case. It could have focused on a particular
theorist from modern natural law (after setting things in context in a short
paragraph) clearly setting out the structure to be used throughout in answering the
question and proceeding to accurately and reflectively answering the question with
substantive content. A position needs to be taken: yes, there are similarities as per
the statement; or, no there are not. We sought eloquent expositions of arguments
concerning the content of law – and what is required in natural law and in positive
law thinking. Facts of the Set Case and how judges interpret law could be used.
Issues that could be raised include: what does it mean to live well and what are the
requirements for humans to live well, to flourish, to have justice?
Relevant chapters in the Study Guide on natural law.
Common errors
To write everything that was known about natural law in a descriptive way.
Demonstrate knowledge of relevant materials and the main theorists of modern
natural law theory connected to modern positivism and the Set Case, focused on
the explicit question asked. They referenced primary and secondary sources and
sounded interested in the topic.
Were too general or descriptive.
Question 3
Critically evaluate the power of Marx, Marxism and Marxist legal theory today
in light of the Set Case.
General remarks
This question sought engagement between Marx, Marxism and Marxist legal theory
and the Set Case. As the Set Case concerns an arms fair, it is expected that
students demonstrate how the arms trade, global capital and global inequality may
interact and intersect and how Marxist theory may be a powerful tool of analysis in
examining these issues.
The relevant Study Guide chapter and materials mentioned within it.
3
Common errors
Answers remaining at a general level, setting out Marxist theory with brief mention
of the Set Case.
Explore the nature of the issues at the heart of the Set Case together with strong
analysis of Marx’s theory and Marxist analysis of law in capitalism while connecting
these all together in the student’s own voice.
Would be inaccurate and or fail to connect the theory with the Set Case.
PART B
Question 4
Critically evaluate how liberal rights of protesters and those in society
affected by their actions are accommodated in a liberal state.
General remarks
This question sought to evoke responses that convey knowledge and show analysis
of conflicting individual rights and societal interests. How are these dealt with in a
liberal democracy? Like Question 1, society includes individuals with very different
values and interests. For example, how are rights of those who wish to protest
freely against what they consider to be abhorrent practices balanced with those
seeking to use the roads to attend an arms fair? Other examples from the Hart-
Devlin debate and so forth enrich answers. What role does law play in a liberal
democracy in addressing these conflicting positions and how ought it to address
them?
The relevant chapter in the Guide on liberalism and law, all related materials
mentioned there. Students could also refer to Dworkin’s, Hart’s and Raz’s
liberalism.
Common errors
Produced general answers about freedom and equality but did not link them well to
the question asked.
Cover the relevant materials which could include the Hart-Devlin debate,
utilitarianism and deontological positions, including Rawls, and apply this to some
case law examples (although case law is not essential here).
Showed little engagement with the materials referred to in the Guide.
Question 5
‘Oppositions between modern natural law and modern legal positivism are
false. There are more similarities between them than differences.’
Discuss, with a focus on EITHER Finnis OR Fuller.
General remarks
Like its mirror question at 2, this is a difficult question and requires active
engagement with the materials in the Guide. As is clearly explained, students were
required to focus on EITHER Finnis OR Fuller and not both or neither. Answers
could have explored natural law more generally to set the scene for their focus on
either of the theorists. A clear Introduction, explaining the approach to be taken – is
there agreement or not with the statement – and then good accurate substantive
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content in the main body of the essay is required. Issues that could be raised
include: what does it mean to live well and what are the requirements for humans to
live well, to flourish, to have justice? Does modern legal positivism, as well as
modern natural law, raise such matters?
Relevant chapters in the Study Guide on natural law.
Common errors
To write everything that was known about natural law in a descriptive way.
Demonstrate knowledge of relevant materials and the main theorists of modern
natural law theory connected to modern positivism, focused on the explicit question
asked. They referenced primary and secondary sources and sounded interested in
the topic.
Were too general or descriptive.
Question 6
‘Marx, Marxism and Marxist legal theory have little relevance today in an age
of global capitalism.’
Discuss.
General remarks
This required knowledge to be conveyed to examiners of Marx’s theory of law,
Marxism in general and Marxist legal theory. In particular, candidates needed to
demonstrate its relevance today. There is also reference in the language to ‘global
capitalism’ so that also has to be addressed. We wanted to see evidence of
students’ knowledge of the materials in the Study Guide applied to current
examples of global capitalism. Students needed to express whether they agree or
disagree with the statement, while setting out the different perspectives in the main
body of their essay.
The relevant chapter in the Study Guide on Marx, Marxism and Marxist legal theory,
and related materials mentioned therein.
Common errors
Wrote about Marx and his theory in a general way without relating it to the question
asked.
Have a clear Introduction, setting out the position they were taking to answer the
question. They engaged critically with relevant materials using a clear structure with
good substantive content throughout.
Addressed Marx’s theory too briefly and were descriptive in nature.
5
Question 7
‘Hart famously compared the rules of law to the rules of games, especially
chess. This is helpful to an extent, but ultimately it is misleading, for it
neglects the central role of coercion in legal systems.’
Discuss by reference to Hart’s theory.
General remarks
This question requires students to show their detailed knowledge of Hart’s
positivism yet focus in on coercion and criticisms of Hart’s theory and his
engagement with Austin and his criticisms of the latter. Candidates must focus on
Hart’s theory in answer to this as explicitly stated in the question.
The relevant chapters on Hart, linked to certain aspects of the command theory
chapter, from the Study Guide.
Common errors
Producing a generally descriptive account of Hart’s theory.
Attempt to link together Hart’s definition of law, and his theory of law as a system of
rules, to the argument that law is ultimately concerned with coercion and that its role
is central in legal systems and understanding them. Does Hart neglect this?
Failed to engage with the question asked with candidates using it as an opportunity
to try and insert a pre-prepared generic stock answer on Hart.
Student extract
The following is a short extract from an answer to this question:
Hart criticized the theory he calls the 'order backed by threats' OBT and says
that it ignores the ‘concept of rule following because it concentrates on
thinking of law as only a set of predictions of the likelihood of punishment
from someone who gives an order and this idea cannot explain what it means
to follow a rule.’
Hart makes three main criticisms: firstly…
It is my opinion that Hart's theory did not neglect the central role of coercion
in the legal system but he rejects such a thought and argues that the union of
primary and secondary rules is what forms the legal system and is the central
set of elements that constitutes law as well as what he believes to be ‘the key
to the science of jurisprudence’.
Comments on extract
This student obtained a solid Upper Second in their assessment. The work is
relatively well written with good clear explanations of aspects of Hart’s theory. They
aim to relate it to the question, although it could have been more focused.
Question 8
‘It is not authority, but power, that is the key concept for theorising law.’
Discuss by reference to Raz’s theory of law and its authority.
General remarks
This question sought to elicit lucid analysis of Raz’s theory of authority. It wanted
students to critically engage with authorities’ claim that they have a right to tell us
what to do and believe, with practical authority being the focus of telling us what to
do. Candidates are expected to discuss the material in the Guide on the paradox of
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authority and the service conception of authority, exploring who or what has power
over us and why this may be accepted by us as individuals.
The relevant chapters on Raz and related materials. It could also include the
chapter on liberalism and law.
Common errors
It was common to read stock answers on Raz’s theory in general.
Be well written, use Raz’s theory to focus on this specific question and show
originality in addressing authority and power.
Fail to engage with the question asked.
Question 9
‘Kelsen’s so-called ‘pure theory of law’ may seem pure, but it is in the end a
theory about the political value of not requiring law to have any particular
moral content.’
Discuss.
General remarks
This is a specifically focused question, on Kelsen’s ‘pure’ theory of law. It directly
mentions the argument that purity is not a neutral position but is political in and of
itself not requiring law to have any particular moral content. Do you agree or
disagree? Positions need to be taken from the outset and spelt out in an
Introduction. Engagement with Kelsen’s theory and its implications in terms of
politicisation and moral content are required. As can often happen with Kelsen
questions, many students contradicted themselves.
Materials in the relevant chapter in the Study Guide. Also, wider materials that are
open to the candidate’s interpretation. If referring to the Pakistan cases in which
Kelsen’s theory has been used adequately incorporate them into a substantive
argument rather than simply mentioning them and not delving deeper.
Common errors
It was common to be presented with a pre-planned Kelsen answer.
Be well written, show nuanced engagement with the question and its relevant
issues.
Fail to engage with the question asked. Disappointingly, many candidates appeared
to misread the question or ignore it completely and call him ‘Kelson’ throughout.
Question 10
How convincing is Dworkin’s ideal judge in assessing the realities of judicial
reason?
General remarks
Answers needed to concentrate on Dworkin’s theory of the ideal judge – Hercules –
and how he reasons, what this ideal type is for and the role it plays in Dworkin’s
theory of law and justice.
The Study Guide materials in the chapter on Dworkin.
7
Common errors
Answers tended to set out Dworkin’s theory in general. We need a focus on the
ideal judge, and then link this to Dworkin’s wider theory and set the specific focus in
the context of his wider theory and his distinction between principles and policies
and his criticisms of Hart’s/positivism’s theory of adjudication.
Have strong references to the primary and secondary materials; explain clearly how
Dworkin uses idealism and Hercules as an imaginary example of how justices ought
to reason. Students would write eloquently clearly setting out their arguments in a
well written manner.
Set out what they knew about Dworkin, sometimes inaccurately, sometimes with
mistakes even as to the spelling of his name throughout (especially Dworking).
Question 11
Critically evaluate the usefulness of Austin’s theory of law in the twenty-first
century.
General remarks
Hart is more generally presented as the main prominent of positivism in modern
times. However, in this question, the focus is on Austin – a theorist from the 19th
century, and one who Hart directly addresses in a critical way in the 20th century –
and on his relevance now in the 21st century. It is more normally accepted that
Hart’s corrections of Austin positively swept away the narrowness of the latter’s
command theory. You are required to make a response: yes, you agree with the
quote, or no, you disagree. Unfortunately, for many, this was an opportunity to
produce their stock ‘Austin answer’. Looking at the experiences of many people in
the world over the last few decades, a key issue has been the centrality of power
and authority; where it resides and for whom it resides is crucial. For many people,
the state is in the process of losing authority, and yet, in diverse countries around
the world, authoritarianism is on the rise and with it a seeming acceptance by many
people that they prefer a strong leader, or a strong leadership, that simply
commands. Is Austin’s theory useful in this context by providing a clear and
straightforward view of law for us to use today?
The material on the imperative and command theory of Hobbes, Bentham and
Austin in, and referenced in, the subject guide.
Common errors
To oversimplify Austin and to focus too much on Hart’s criticisms alone.
Explain, analyse and critique Austin’s theory. It would address criticisms. It needed
to apply these to the 21st century context.
Produced stock answers suggesting the use of institutional notes on a pre-prepared
Austin answer.
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Question 12
‘The power of feminist legal theories lies in their potential to highlight law’s
structural bias against women.’
Discuss.
General remarks
The question seeks to elicit student knowledge of feminist legal theories (FLT). In
particular, answers need to show how FLT has been successful or not in
demonstrating law’s inherently discriminatory effect on women. Candidates could
analyse the varieties of feminist thought in law. There needs to be engagement with
arguments that law and the state reflect and reinforce male power institutionally,
spelling out what these concepts mean and what theorists have said about this.
The Study Guide chapter on feminist legal theories.
Common errors
Common errors included writing too generally about feminism. It is fine to draw
upon popular feminism and examples of women’s oppression in the media/
journalism etc but this needs to be done by reference to substantive legal texts
contained in the Study Guide.
Clearly engage with, and answer, the specific question asked, with application to
examples from the recent past and current affairs. Many answers were enriched
when credible source materials from the Study Guide materials were interconnected
to these.
Set out a very general description of some aspects of feminism or women’s
oppression with little reference to jurisprudence.

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Examiners’ reports 2022

Examiners’ reports 2022

LA3005 Jurisprudence and legal theory – Zone B

Questions 1–3 are about the Set Case Director of Public

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