Q&A Jurisprudence 2011-2012 (Questions and Answers)

261 Pages·2011·3.26 MB·English

by  David Brooke

R outledge Revision: Questions & Answers
 Jurisprudence
2011–2012
Routledge Q&A series
Each Routledge Q&A contains approximately 50 questions on topics commonly
found on exam papers, with answer plans and comprehensive suggested answers.
Each book also offers valuable advice as to how to approach and tackle exam
questions and how to focus your revision effectively. New Aim Higher and Common 
Pitfalls boxes will also help you to identify how to go that little bit further in order to
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New editions publishing in 2011:
Civil Liberties & Human Rights Equity & Trusts
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Constitutional & Administrative Law Family Law
Contract Law Jurisprudence
Criminal Law Land Law
Employment Law Medical Law
English Legal System Torts
For a full listing, visit http://www.routledge.com/textbooks/revision
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R outledge Revision: Questions & Answers
Jurisprudence
2 011–2012
David Brooke
Senior Lecturer in Law and Module Leader in Jurisprudence at Leeds
Metropolitan University
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Fifth edition published 2011
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the U S A and Canada
by Routledge
270 Madison Avenue, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group, an informa business
This edition published in the Taylor & Francis e-Library, 2011.
To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.
© 2009, 2011 David Brooke
Previous editions published by Cavendish Publishing Limited
First edition 1993
Second edition 1995
Third edition 2001
Previous editions published by Routledge-Cavendish
Fourth edition 2009
The right of David Brooke to be identified as author of this work has been asserted by him in
accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any
electronic, mechanical, or other means, now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Brooke, David, 1966-
Jurisprudence / David Brooke. – 5th ed.
p. cm. – (Q&A, Routledge question & answers series)
Rev. ed. of: Jurisprudence, 2009-2010. 4th ed. 2009
Includes bibliographical references and index.
ISBN 970-0-415-59915-3 (pbk : alk. paper) – ISBN 978-0-203-83280-6 (ebk)
1. Jurisprudence–Examinations, questions, etc. I. Brooke, David, 1966-
Jurisprudence, 2009-2010. II. Title.
K231.B76 2011
340.0076–dc22 2010040385
ISBN 0-203-83280-9 Master e-book ISBN
I S B N 13: 978–0–415–59915–3 (pbk)
ISBN13: 978–0–203–83280–6 (ebk)
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V
Contents
Preface vii
Table of Cases ix
Table of Legislation xi
Guide to the Companion Website xiii
Introduction 1
1 General Aspects of Jurisprudence 9
2 Precursors of Modern Jurisprudence 21
3 Natural Law 39
4 Common Law and Statute 65
5 Utilitarianism 83
6 Punishment 101
7 Legal Positivism 111
8 Authority 155
9 American Realism 173
10 The Nature of Law 185
11 Contemporary American Jurisprudence and Political Philosophy 199
12 Rights 211
13 Law and Morality 225
  Index  239
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VII
Preface
This collection of Questions and Answers has as its objective the provision of
structured material designed to assist students preparing for first examinations in
jurisprudence. The mode of presentation adopted involves the setting of a question
of the type often asked in examinations of this nature, and the providing of an
appropriate answer. The answers are not to be considered as ‘model answers’; they
are intended specifically to be illustrations of the type of answer required, with
particular reference to content and structure.
The format is as follows:
Introduction to chapter. This indicates the subject matter to be covered by the
questions.
Checklist. The relevant jurisprudential concepts to be tested are noted. They should
be learned or revised carefully before the answer presented is considered.
Question. The rubric and its specific demands should be studied carefully. ‘Comment’,
‘critically examine’, ‘outline’ are not interchangeable terms; each requires its own
pattern of answering.
Answer plan. This indicates the approach that is taken to the question and suggests
a skeleton plan that is followed. Students should consider the advisability of
planning an answer in this form; the production of a skeleton plan is a useful
method of arranging content.
Answer. Content and structure are of major significance and ought to be noted
carefully.
Notes. Details of suggested reading are given under this heading. Students who
require guidance in the choice of general jurisprudence reading material might
consider the following recommended texts: James Penner, Jurisprudence (2008) is an
up to date and accessible guide to the subject (McCoubrey and White’s textbook on
Jurisprudence, edited by James Penner (2008, Oxford University Press); Brian Bix,
Jurisprudence: Theory and Context (2009, Sweet and Maxwell) is recommended as a
student text, and also see N E Simmonds, Central Issues in Jurisprudence (2008, Sweet
and Maxwell). Raymond Wacks, Understanding Jurisprudence (2009, Oxford
University Press) is useful. A valuable addition to any jurisprudential library is A
Dictionary of Legal Theory (2004, Oxford University Press) by Brian Bix, which gives
helpful definitions of many jurisprudential words and phrases. Further reading
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VIII preface
includes the following: Harris, Legal Philosophies (1997, 2nd revised edition, Lexis
Nexis UK); Freeman, Lloyd’s Introduction to Jurisprudence (2008, Sweet and
Maxwell); Hart, The Concept of Law (1994, 2nd edition, Oxford University Press);
Dworkin, Law’s Empire (1986); Davies and Holdcroft, Jurisprudence – Texts and
Commentary (1991, Butterworths). A very detailed and comprehensive commentary
on jurisprudence is provided by Penner, Schiff and Nobles, Jurisprudence and Legal
Theory: Commentary and Materials (2005, Oxford University Press). Please try to use
the most up to date versions of textbooks where available.
In this fifth edition new questions appear throughout the book and new chapters
appear on Common Law and Statute, Punishment and The Nature of Law.
David Brooke
July 2010
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IX
Table of Cases
A, Re (Children) (2000) 4 All ER 961 222 McLoughlin v O’Brien [1982] 1 AC 410
Airedale NHS Trust v Bland [1993] 1 All 13, 60
ER 821 218, 219 Omychund v Barker (1744) 1 Atk 21; 26 ER
Brown v Board of Education 347 US 483 15 61, 67
(1954) 13 R v Howe (1987) AC 417 75–76
Burnie Port Authority v General Jones Pty R v Sargeant (1974) 60 Cr App R 74 103
Ltd (1994) 179 CLR 520 80 Riggs v Palmer (1889) 115 NY 506 (Elmer’s
Chapman v Chapman (1954) AC 429 68 case) 13, 182
Donogue v Stevenson [1932] AC 562 Savings and Loan Association v Topeka
60, 77 22 L Ed (1875) 34
Entick v Carrington (1765) 19 St Tr 1029 34 Tennessee Valley Authority v Hll (1978)
Ibrahim v R (1914) AC 599 75 437 US 153 13
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