August 29, 2000
Jurisprudence is a philosophy course. It has no prerequisites. However, you have to have
to like that way of thinking. It will be hard to figure out what we’re doing. This is a
different type of course. There’s no doctrine to learn; no orthodox answers to questions.
There’s very little reading in this class. Explication of the material is key.
What is this course about?
A: About law – philosophy of law. This course is about analytical jurisprudence, as
opposed to normative jurisprudence. It is what is the nature of law, what makes the law
law – basic understanding of courts, law, rules, responsibility, rights – this is analytical
jurisprudence. Normative jurisprudence is about normative inquiries – not what is the law
but how should the law be or what ought the law should be.
What is law? Law is what you learn in law school. But what makes law school law
school? Virtually everyone’s understanding of what law is is incorrect. We will attempt
to explain what law is. The right analysis, however, is hard to come by.
How is law different from religion, morality, etiquette, Canadian law, etc.? This is a
MAIN QUESTION: Law shouldn’t exist, law can’t possibly exist, for the existence of
law is a paradox. Why? Who makes legal rules? Those with legal authority. Legal
authority, however, is a product of legal rules. And who created those rules that created
legal authority? This is a classic chicken-egg problem (“How could eggs or chickens ever
exist in the first place?”). The primary efficient cause is unknown….
Legal authority is created by legal rules. Legal rules are created by legal authority. Both
are circular. Neither has a separate existence.
Evolution solved the chicken-egg problem (i.e., common ancestors of chickens were the
cause of chickens’ existence).
Congress has the power to regulate interstate commerce under enumerated powers
(Article I, Section 8). The authority of Congress derives from the Constitution. But what
makes the Constitution authoritative? Article VII (9 of 12 states must ratify).
How, though, can Article VII give power to the states to ratify the Constitution when it is
part and parcel of the Constitution? In order for Article VII to be valid, it has to be
invested with authority from some entity OTHER THAN ARTICLE VII. The
Constitution has to be a valid document first for it to be applicable.