Formative Assessment

Jurisprudence Answer and Feedback

Indicative Classification: Fail

STUDENT ANSWER
Issue:
This question deals with whether law as authority is consistent with the liberal claim of liberty and
equality that law should only govern our publicly relevant actions and not meet our private beliefs
and preferences. Law as authority tell us what we have to do or what we have to believe and this
paradox of authority can be dissolved by the Normal Justification Theory of Raz which deals with
balance of reason. Even though Raz spoke about hard positivism, but none of his theories are in
conflict with liberalism or Feminism which is the basis of future of authority of human rights.

Rule:
Raz spoke about ‘Legal Positivism’ which deals with hard positivism and denies the place of
morality in law. The Practical Theory of Raz can be broken down into two stages mainly which are
as follows:

• Deliberate phase deals with practical reason is the consideration and weighing up of the
reasons that bear on the issue and coming to a decision about what to do with
exclusionary reasons. In this phase practical reasoning weight up the reasons bear on the
issue and coming to a decision about what to do or not.

• Executive phase represents the reasons of conclusion of deliberate phase. Authorities

have the right to issue authoritative directives based upon their deliberation on the
relevant facts. So, according to Raz, this phase deals excludes the balance of reasons.

Where Exclusionary Theory excludes the balance of reasons, there the Normal Justification
Theory of Raz says that authority means to act correctly on the balance of reasons and not on the
directives of the authority, without using you own assessment. The Theory of Authority says that
the practical authority has right to what we should do and the theoretical authority says what we
should believe. The Theory of Paradox of authority says that authority is irrational because it
dictates us what we should do or believe and there is no scope of personal assessment.

Orientation/Application:
We simply cannot says that this theory of authority has no value because where exclusionary
theory is excluding reasons, there normal justification is giving the opportunity to test the reasons
behind legislation.
Historically, when power belongs to one ruler only, then he was the authority of making laws
(legislation), executing that law (executive) through force of adjudication and punishment
(judiciary). At that period authority was the sole power to govern the life of everyone (pre-
legislation). At that time authority dictates what we should do or what should we believe because
it pleases the ruler which most of the times lacks morality, but the question remains that nowadays
can we say that authority is immoral and people are unable to challenge the reason behind them?
Perhaps the answer is ‘NO’ and here I am going to discuss it.

March 2020 Page 1 of 4

How law is made? Law means enactment or when legislator write down those customs or law
pronounced by rulers (Pre-Legislation) through several debates, then that is called law. One
notable thing is that religion has a special impact in our life. Since we are discussing English laws
here and the dominant religion in England is Christianity, I want to highlight that Christianity
speaks about “what man ought to do and not what we do”. Morality is inherent in our social
culture. So, when legislators are legislating law, then they are challenging the morality of law at
their debates and discussions. This is the stage of interpretation where authorities are challenged
and has to go through several test of morality. Liberalism says that to achieve the highest level of
satisfaction or happiness, law must count one person as one and not more than one, but Rule-
Utilitarianism also says that people has rights as it explained by lawyers through the adjudication
process. Raz spoke about this stage that people have to obey the legislated laws or judicial
decisions which are explained or defined by some special technical people, but he missed two
points here which are as follows:

• Legislators are democratic representative. They rise through common people and
common people elect them. So, no question specialty arises here.

• Still when people are dissatisfied or affected by the enacted legislation, they can challenge
the law to the court. It is true that the judiciary is not elected. The lawyers are special
technical persons of law, but they are ‘selected’ for their excellent quality and this we need
to test the morality of enacted law. Judiciary not always uphold the law, they sometimes
set aside the law. This “Selection” cannot be made by “Election” which causes democratic
deficit here. After this stage if this rule is recognized at the society, then that’s fine, but
otherwise the rule can be challenged for several in higher courts or through larger
benches to test the morality of the law (Post-Legislation). Here, we can say that people
forget the reasons behind legislation, but we cannot say that law excludes reason as the.
According to Raz law has limitation because of its authoritative character. Law is limited by the
bounds of what can constitute an authority means a law cannot serve as law unless it serve as
authoritative direction. The Normal Justification Theory of Raz describes that authority means to
act correctly through the balance of reasons. This balance of reasons means to act on your own
assessments on the balance of reasons and not on directions of the authority. It is true that law
from external point of View of Rule of Recognition, is open for everyone to challenge before court.
When one cannot agree with any particular authority, upon having Locus Standi, they can
challenge that to court. Litigation in person is a way through which people can present their case
without lawyer means as rule utilitarianism was saying that people has rights, but those are as
explained by lawyer, is no more true because litigants in person can argue their cases before
course and they can describe their rights, not depending upon the description of lawyers. On the
contrary, judges decides their rights in accordance with the balance of reasons which we cannot
stop because when every human being will start deciding their rights, then that will encroach
upon other’s right automatically which will bring breakdown to any particular society from
progress. People have rights to challenge the decision, but Normal Justification Theory is
applicable upto a certain extent and never overrule the power of legitimate authority.

Even though authority might differentiate between public & private law, but according to Raz it
is best to follow authoritative directives rather than reasoning for oneself. We cannot say that law
should only govern our publicly relevant actions and not meet our private beliefs and preferences.
Historically, English common law system is different than Inquisitorial legal system. In English law,
firstly, statutes form through the precedents which depend on Rule of Law (Magna Carta 1215)
and rule of law deals with freedom, liberty and equality as liberalism says. Secondly, feminism first

March 2020 Page 2 of 4

and second wave bring changes to the recognition of women before legal authority. So, we
cannot say that law or legal authority, if interpreted properly, can ignore the sexual preferences.

Some problems can be identified between Practical Theory and Substantive laws. According
to Practical theory authority weight up the reasons that bear on the issue and coming to a decision
about what to do or not and this deals with exclusionary reason. I want to discuss joint emprise
case R v Powell & R v Jogee here. The Accessories and Abettors Act 1861, section 8 provides that:
Whosoever shall aid, abet, counsel or procure the commission of any indictable offence shall be
liable to be tried, indicted and punished as a principal offender. This is a Practical Theory where
legislators, after having long discussion & debates enacted this. Not only this authority has
habitual obedience in common people, but also this is binding to judiciary also because
Parliament is sovereign. For this reason with others, UKHL in R v Powell decided that participation
enough to be held guilty for joint enterprise. This is a clear example of Exclusionary Theory where
no-one considered the reason behind this enactment. The reason was to punish those people who
jointly with joint intention bring harm to others. This Joint intention has not been mentioned
clearly in the statute. Also R v Powell fails to recognise this, but UKSC in R v Jogee identified this
theory which bring clarity to this portion of joint enterprise law. There are many laws which we
need to decide in this way. This is a big shortcoming of Practical Theory because unless and until
the laws are challenged before court with sufficient locus standi and the proper balance of reason
is missing, till then that law applies to everyone. Nature did not provide us any list of norms, but it
did provide one cognitive brain which we need to develop properly and use, but without legal
authority, no society can exist.

Conclusion:-
We can sum up by saying that the concept of authority is consistent with the liberal claim of
liberty, equality and freedom if we can legislate or adjudicate properly with balance of reasons and
it never ignore sexual preferences.

STUDENT MARK: 38%

EXAMINER FEEDBACK
Strengths
This essay has the beginnings of some very interesting arguments but, as submitted, reads more
like notes on Raz than a proper answer to the question. I think you understand Raz, but sadly, this
is not really what the question is about. You could use Raz to answer the question, but you would
then have to make Raz's thinking relevant to the issues raised. At the very least, you would need to
read the relevant section of The Morality of Freedom, as otherwise your approach would seem a
little abstract. If you do this, I cannot see why you would not be able to write well on this topic but,
I do think you need to work on the focus and structure of your answers.

Areas for improvement

One of the great strengths of your work is your ability to sustain a focused argument. You write
fluently and with style.
I think it is a question of adding to this rather than changing your approach. Whilst this piece
shows a grasp of one area of the syllabus, and perhaps the area most relevant to the question, it
would be good if you could broaden out your answer, and make use of other themes/ concerns.
For instance, your criticisms might be linked to themes in Dworkin or even Raz- different ways of

March 2020 Page 3 of 4

thinking about what makes intimate sexual expression worthwhile, and thus worth protecting in a
democracy or a decent rule of law society. Some aspects of natural law thinking may be relevant
here but the difficult thing is that Finnis is not their best exponent. His version of natural law
thinking seems to me to end up as an apologetics for his own homophobia. I wonder if, though,
the idea of friendship and/or societas in Aquinas, as a kind of erotics of care for intimate others-
might allow a saner and more exclusive natural law understanding of sexuality.
Feminist perspectives are also really worth thinking about. It might be rather simplistic to say that
the debate on sexuality has been almost exclusively a male preserve- but surely there is a large
measure of truth in this statement. Feminism is not one single position-- and some versions of
feminism are (for me at least) more vital than others-- but I think that the more interesting feminist
thinkers have something to tell us about what is worthwhile in human sexuality- and cannot be
captured by simplistic statements- by Lord Devlin or, indeed, anyone who lacks the insight to think
these things through.

March 2020 Page 4 of 4