MIDLANDS STATE UNIVERSITY

FACULTY OF LAW

JURISPRUDENCE

LB 303

MODULE OUTLINE 2025

Lecturer: Dr Willard T Mugadza

Email:msujurisprudence@[Link]

Room 23

Introduction
Welcome to the module "Jurisprudence” which is also referred to as “Legal Theory”. This
module builds on the knowledge you have acquired in the module Introduction to Law.

In this module we deal with a number of contemporary issues from a jurisprudential or ethical
perspective. We will discuss matters as diverse as euthanasia, abortion, poverty, the right to
resist or disobey an unjust system, when state security measures are justified, what the role of
judges is, how important community is in law and what the relationship between law and religion
should be. Virtually all of the topics in this module are currently covered in the local and
international press and are debated across the world. The aim of this module is to equip you
academically to join these discourses on high level.

You will note that the outcomes require knowledge as a basic prerequisite, but then much more
– you will be challenged to formulate and communicate your own, substantiated opinion on a
number of aspects. You are encouraged to read wider than the prescribed material – there are
ample additional books and other sources available.

PURPOSE OF THE COURSE

1. Analyse a given problem/case and show that you understand this as a philosophical problem
and not only as a legal problem.
2. Show an understanding of the nature of the philosophical problem based on your knowledge
of basic philosophical ideas.
 3. Be able to integrate facts and theory: In other words, to properly apply the philosophy/theory
to the facts.
Use proper grammar, spelling, formulation and full sentences in an essay format to explain your
ideas.

ASSUMPTIONS OF PRIOR LEARNING

• In order to successfully complete this course, the students need to be able to:
• Have a sound understanding of English language;
• Proper use of academic resources such as the library, electronic sources, law reports, journal
articles etc;
• Be capable of independent writing;
• Proper knowledge and application of referencing.

OUTCOMES
• A comprehensive and systematic knowledge as well as a coherent and critical understanding of
different theoretical approaches to selected foundational issues in law and legal studies,
• The ability to critically analyse and compare different schools of thought and theories in depth
and to effectively use eminent views to formulate evidence based and ethically sound solutions
to selected legal-ethical issues;
• The ability to effectively, efficiently and independently retrieve information identified as
necessary to solve a problem, to analyse or evaluate issues or topics in Jurisprudence, prepare
solutions and communicate considered views on relevant issues to a range of audiences with
academic-professional discourse and acceptable legal argumentation.

Upon completion of this study unit, you should be able to:

Formulate the views of the following schools / philosophers on the role of the judiciary and
nature of adjudication:
• Natural law;
• The positivists Austin, Hart and Kelsen;
• The American realists;
• Ronald Dworkin; Critical legal studies; Feminists and African jurisprudence
• Indicate what criticism has been brought against and in favour of each of the views
referred to above and assess the criticism;
• Indicate which approach has been adopted by the Constitutional Court in Zimbabwe on the role
of the judiciary and nature of adjudication;
• Critically evaluate each of the views referred to above;
• Formulate your own substantiated opinion on the role of the judiciary and nature of adjudication;
• Effectively communicate your knowledge, views and conclusions both orally and in writing, in
acceptable academic format.

TEACHING METHODS
This module is designed according to the model of a study-centred approach. This entails that
as a student you are regarded as somebody who actively acquires information and transforms it
into relevant knowledge in the learning process. In a study-centred approach the student
commands centre stage and the student assumes “ownership” of the module. The focus is on
you as a student who actively acquires knowledge. The responsibility for acquiring knowledge is
your own. This course outline is planned and written in such a way that it gives guidance to
students who study independently. An important aspect of facilitating your study has to do with
making explicit the module outcomes and study outcomes of each chapter. The success of the
student-centred approach depends on your participation, which will only be possible if
you are prepared when attending the lectures.

You will be required to form your own views on all topics we will discuss in this module. This
should be seen in context. You still have to know all the theories and approaches to make
sense of them and to form your own opinion. You are invited to enter into a debate with each
proponent of each theory we will do in the module and to argue why the views of the person/s
are valid or not.

You should first summarise the authors’ views, analyse them and evaluate them and
THEN provide your own. Once you have done that and present your own substantiated
view, you have succeeded.

In this sense, your own view cannot be “right” or “wrong” and need not be the same as the
lecturer’s or what you perceive my views to be. You are entitled to your own views, provided you
have reached them in an academically sound way. A mere statement, unsubstantiated view
or opinion without reference to the theories discussed, will not be adequate.
Academic integrity
Academic dishonesty is unacceptable and you are required to submit your own work for
assessment. The basic rule is: do your own work, be honest and act with integrity.
Copying of text from other students or from other sources (for instance the study guide,
prescribed material or directly from the internet) is not allowed – only brief quotations are
allowed and then only if indicated as such.

You should reformulate existing text and use your own words to explain what you have read. It
is not acceptable to retype existing text and just acknowledge the source in a footnote – you
should be able to relate the idea or concept, without repeating the original author to the letter.

The aim of the assignments and paper is not the reproduction of existing material, but to
ascertain whether you have the ability to integrate existing texts, add your own interpretation
and/or critique of the texts and offer a creative solution to existing problems.

ASSIGNMENT/COURSEWORK ASSESSMENT
Students will be required to write two individual assignments; one In-class tests. Students will
also be furnished with the submission dates for the assignments in due course.

EXAMINATION
The examination will constitute 70% of the final assessment of the student and it is not an open
book examination.

JURISPRUDENCE
1. Introduction
Why jurisprudence?
Speluncean Explorers case

2. Natural law and morality

Classical natural law theory
Plato and Aristotle
St Thomas Aquinas
Contemporary natural law theory
Grotius
 Sir William Blackstone
Natural law in political philosophy
Hobbes
Locke
Rousseau

The decline of natural law

The revival of natural law theory

John Finnis

Hard and soft law

Moral realism
Critique

Law and morality

Natural law v positivism
Hart v Fuller
Hart v Devlin

Judicial morality: a case study

Moral questions
Semantic questions
Public v private morality
The judge’s duty
The judge’s choice
The judge’s surrender
The judge and the lawyer

3. Classical legal positivism

Jeremy Bentham: the Luther of jurisprudence
John Austin: naïve empiricist
Bentham v Austin compared
4. Modern legal positivism
The foundations
HLA Hart
Law and language
Law as a system of rules
Social rules
Secondary rules
The rule of recognition
The existence of a legal system
The judicial view

Hans Kelsen
Unadulterated law
The Grundnorm
International law
Democracy and the rule of law

Joseph Raz
Hard and soft positivism

5. Dworkin and the moral integrity of the law

Principles and policies: One right answer
The semantic sting: The right thesis
Law as literature
Law as integrity
Community
Equality
Good lives and living well
The assault on Dworkin

6. Legal realism
American realism
Scandanavian realists (Alf Ross)
7. Law and social theory
Max Weber
Capitalism and the law
Karl Max

8. Theories of justice
Utilitarianism
Economic analysis of law

9. Rights
Theories of rights
Human rights
The future of human rights
Freedom of expression
Animal rights

10. Why obey the law?

Prima facie duty?
Justifying the duty

11. Why punish?

Justifying punishment
Retributivism
Consequentialism
Restorative justice

12. Critical legal theory

Critical legal theory
Postmodern legal theory
What is it?
Critical theory and individual rights

13. Feminist and critical race theory

Feminists legal theories
 Legal feminists
Liberal feminism
Radical feminism
Postmodern feminism
Difference feminism

14. African jurisprudence

Is democracy a Western concept?
Constitutionalism and African politics

15. Decoloniality and the Law (African Legal Systems)

The future of African democracy
Ubuntu and the Law
Necropolitics

16. Artificial Intelligence (AI) and the Law

COURSE-WORK

CLASS TEST 1
TO BE WRITTEN ON 15 April 2025 (Class Time)

CLASS TEST 2

TO BE WRITTEN ON 22 MAY 2025 (Class Time)

There shall be no extra course-work assessments for student(s) who without justifiable
reason(s) in terms of the University’s rules and regulations read in conjunction with the
Faculty rules and regulations miss the prescribed course-work assessments.

COMPULSORY READING

Speluncean Explorers case

Madzimbamuto v Ladner-Burke
Chamisa v Mnangagwa and Others (Presidential Petition Case)
R v Dudley and Stephens 1804
Grudge Informer case
Riggs v Palmer

Recommended reading materials

Freeman, M. (ed.) Lloyd’s Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001)
seventh edition [ISBN0421690208].

Dworkin, R. Law’s Empire. (Oxford: Hart Publishing, 1998). [ISBN 1841130419] Chapter 1.

MacCormick, N. and W. Twining ‘Legal Theory and Common Law’ in B. Simpson (ed.) Legal
Theory and Legal History: Essays on the Common Law. (London: Hambledon Press, 1987)
[ISBN 0907628834] Chapter 13.
Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Clarendon Press, 1983) [ISBN
0198253877] Chapter 1: ‘Definition and theory in jurisprudence’ (also in 70 Law Quarterly
Review 37).

Fuller, L. ‘The Speluncean Explorers’ in Freeman, pp. 51–63 (also in 62 Harvard Law Review
616)

Freeman, M. (ed.) Lloyd’s Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001)
seventh edition [ISBN 0421690208].

Penner, J. et al. (eds) Jurisprudence and Legal Theory: Commentary and Materials. (London:
Butterworths LexisNexis, 2002) [ISBN 0406946787].

Hart, H. The Concept of Law. (Oxford: Oxford University Press, 1994) second edition [ISBN
0198761228].

The following are books that could be usefully bought, but if they are readily available from a
library, that is fine:

Dworkin, R. Law’s Empire. (London: Fontana Paperbacks, 1986) [ISBN 0006860281].

Hart Fuller debate (read both articles)

Hart Devlin debate

Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983)
[ISBN 0198253877].

Morrison, W. Jurisprudence: From the Greeks to Post-modernism. (London: Cavendish, 1997)

[ISBN 1859411347].

Simmonds, N. Central Issues in Jurisprudence: Justice, Law and Rights. (London: Sweet &
Maxwell, 2002) [ISBN 0421741201].
Berlin, I. ‘Two concepts of liberty’ in Four Essays on Liberty. (Oxford: Oxford University Press,
1979) [ISBN 0192810340].

Cotterrell, R. The Politics of Jurisprudence. (London: Butterworths Law, 2003) second edition
[ISBN 0406930554] Chapter on Bentham and Austin.

Devlin, P. The Enforcement of Morals. (Oxford: Oxford University Press, 1965) [ISBN
019285080].

Dworkin, R. Law’s Empire. Chapters 1, 2 (particularly pp. 76–86), 3, 5 (particularly pp. 164–75),
6, 7, 8 and 10.

Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1977) [ISBN 0715611747] Chapters
4 and 5.

Fuller, L. ‘Positivism and fidelity to law – a reply to Professor Hart’ (1958) Harvard L.R. 690
(extracts in Freeman, pp. 370–373).

Guest, S. Ronald Dworkin. (Edinburgh: Edinburgh University Press, 1997) second edition [ISBN
0748608052] Chapters 2, 3, 4, 7 and 8.

Guest, S. (1988) Law Quarterly Review 155 (Review of Law’s Empire).

Hart, H. Essays in Jurisprudence and Philosophy. Essay 1 (particularly pp. 21–35), Essay 2,
Essay 3 and Essay 16.

Hart, H. Law, Liberty and Morality. (Oxford: Oxford University Press, 1962) [ISBN 0192850172].

Hohfeld, W. Extracts in Freeman, pp. 510–514.

Rawls, J. A Theory of Justice. (Oxford: Oxford University Press, 1972) [ISBN 0198243685] pp.
22–27, and pp. 46–53.

Raz, J. ‘The purity of the pure theory’ (1981) in Freeman, pp. 327–37.
Simmonds, N. Central Issues in Jurisprudence. Chapters 1, 3, 5; pp. 58–62 (including
suggested reading); and Chapters 8 and 9, particularly pp. 135–52, including reading.

Waldron, J. Law. (London: Routledge, 1990) [ISBN 0415014271] Chapter 5.

Williams, B. ‘The idea of equality’ in P. Laslett and W. Runciman (eds) Philosophy, Politics and
Society. (Oxford: Blackwell, 1962)

• Achille Mbembe (Necropolitics and other relevant jurisprudence articles)

• Dunia Zongwe (relevant jurisprudence articles)

• Yvonne Mokgoro (especially Ubuntu articles)

• Abolition of the death penalty in Zimbabwe (Constitution and the Law)