UNIVERSITY OF ZIMBABWE

FACULTY OF LAW

JURISPRUDENCE

COURSE OUTLINE , READING LIST, ASSIGNMENTS AND TUTORIAL QUESTIONS

2024

COURSE TITLE: JURISPRUDENCE

COURSE CODE: LB 303/BLS Jurisprudence

CONTACT HOURS: 60hrs

LECTURER: Prof L. Madhuku

Lecturer’s contacts: 04 333556/0774 172 565/

[email protected]

INTRODUCTION
The term “Jurisprudence” is derived from the Latin words “juris prudentia”,
meaning knowledge of the law. Broadly and ambitiously speaking, this is what this
course is all about. It seeks to introduce students to critical concepts about the
nature and functioning of law with a view to developing in the student, an
analytical, broadened and searching legal mind. Such a mind is a sine qua non to a
successful career in law.

The course will broadly focus on the philosophy of law but more specifically on
legal theories. Students are expected to be conversant with the main theories of
analysis and debate in answering examination questions.

AIMS
  To expose students to advanced legal analysis skills.
 To develop in the students an analytical, broadened and searching legal
mind.
 To equip students with the capacity to engage in intellectual inquiries
about law, its nature and functioning in society.
 To enable students to deepen their understanding of the nature of law by
incorporating perspectives derived from various legal theories.
 To use ideas and outlooks generated by legal philosophers in developing,
in the students, a critical approach to law.
 To demonstrate the interplay between law(on the one hand) and morality,
justice, politics and social and economic forces (on the other).
 To arm students with the capacity to develop a philosophy of law of their
own.
OBJECTIVES (INTENDED LEARNING OUTCOMES)

AT THE END OF THE COURSE, STUDENTS ARE EXPECTED TO HAVE:

 A thorough understanding of the leading legal theories such as natural

law, positivism, sociological jurisprudence, legal realism, critical legal
studies, Marxism and feminist legal theory.
 A clear appreciation of the contributions to legal scholarship by selected
jurists such as Hart, Fuller, Dworkin and others.
 Capacity to approach the following key issues from a legal philosophy
approach: justice; morality; rule of law; democracy; human rights
protection and enforcement; role of judges; law and development.
 Capacity to analyse legal problems under the notion that there is no right
and wrong answer.
 Confidence to attempt their own legal philosophy.

ASSIGNMENTS/COURSE WORK ASSESSMENT AND EXAMINATION

There is one compulsory essay to be submitted on or before 14 March, 2025. The

examination is OPEN BOOK: candidates may take into the examination their own
handwritten materials.

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COURSE CONTENT & READING MATERIALS

1. INTRODUCTION AND SUBJECT MATTER

(Including an Introduction to the history and nature of legal theory)

i J.W. Harris, Legal Philosophies,[latest edition] Butterworths, London Chapter

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ii. W.J. Hosten, Introduction to South African Law and Legal Theory [latest

edition]Butterworths.
iii. R. Cotterrell, The Politics of Jurisprudence: A critical Introduction to Legal

Philosophy Butterworths, London and Edinburgh, 1990.

iv. R.W.M. Dias, Jurisprudence [latest edition] Butterworths, London.

v. R.H.S. Tur, “Jurisprudence and Practice” in The Journal of the Society of

Public Teachers of Law 14 (1976) p.38

vi. YU.A. Kharin, Fundamentals of Dialectics 1981 Progress Publishers, Moscow,

Chapter 1
vii. Adrienne E van Blerk, Jurisprudence: An Introduction (1996, Butterworths)

2. NATURAL LAW AND POSITIVIST THEORIES OF LAW

i. J.W. Harris, Legal Philosophies Chapters 2, 3, 4 and 6.
ii. Andrienne van Blerk Jurisprudence: An Introduction (1996, Butterworths)
Chapter 1, 2 and 5.
iii. W.J. Hosten Introduction to South African Law and Legal Theory 1980,
Butterwoths
ii. H.L.A Hart, The Concept of Law Oxford[latest edition]
iii. H.L.A Hart, Essays in Jurisprudence and Philosophy Clarendon Press,
Oxford, see page 286 (on Kelsen)
iv. Joseph Raz, The Authority of Law: Clarendon Press, Oxford, 1979 Chapters
3 and 7
v. Fuller; The Morality of Law; Yale University Press, 1964.
vi. John Finnis, Natural Law and Natural Rights Clarendon Press, Oxford, 1980
vii. John Austin, The Province of Jurisprudence Determined, Weidenfeld and
Nicolson, London (First published 1832, Reprinted 1865.

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 viii. Hart, H.L.A, Positivism and the Reseparation of Law and Morals” 1958
Havard Law Review 593
ix. Fuller LL, “Positivism and Fidelity to Law - A Reply to Hart, 1958 Harvard
Law Review 630
x. John Dugard, “The judicial Process, Positivism and Civil Liberty”, (1971) 88
South African Law Journal 181
xi. John Dugard, “Some Realism about the Judicial Process and Positivism - a
Reply” (1981) 98 South African Law Journal 372
xii. R. Seidman, “The Inarticulate Major premise.”
xiii. David Dyzenhaus, “Positivism and Validity”, (1983) 100 South African Law
Journal 484
xiv. Christopher Forsyth and Joham Schiller, “The judicial process, Positivism
and Civil Liberty.” (1981 98 South African Law Journal 218
xv. M.S. Blackman, “Hart’s idea of Obligation and his concept of Law” 1977) 94
South African Law Journal 1991 (50) p.308

3. DEPARTURES FROM CLASSICAL NATURAL LAW AND POSITIVISM

 RONALD DWORKIN’S THEORYOF LAW
i. Ronald Dworkin, Law’s Empire, Fontana Press 1986

ii. Ronald Dworkin “Is Law a System of rule?” in Robert S. Summers (ed)”

Essays in Legal Philosophy Oxford, Basic Blackwell, (1970) p.25

iii. J.W. Harris, Legal Philosophies 1980 Butterworths, London, Chapters 14,

17 and 18.
iv. R.W. M. Dias, Jurisprudence 5 Edition Butterworths, London see page
th

375.
v. Philip Soper, “Legal Theory and the obligation of a Judge: The
Hart/Dworkin and Dispute”, in Marshall Cohen (ed) Ronald Dworkin and
Contemporary Jurisprudence (Rowman And Allanheld, New Jersey (1984)
p.3
vi. John Mackie, “The Third Theory Law.” In Marshall Cohen (ed), Ronald

Dworkin and Contemporary Jurisprudence (supra) p.161

vii. Roger Cotterrell, The Politics of Jurisprudence A Critical Introduction to

Legal Philosophy, Butterworths, 1990.

viii. Adrienne van Blerk, Jurisprudence: An Introduction (1996,
Butterworths) Chapter 4

4. LEGAL REALISM

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 (i) J.W. Harris Legal Philosophy, 1980 Butterworths, London, Chapter 8
(ii) R.W.M. Dias, Jurisprudence, 5 Edition, Butterworths, London, see page 447
th

(iii) H.L.A. Hart, Essays in Jurisprudence and Philosophy, Claredon Press, Oxford
see Essays 6 and 7.
(iv) Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to
Legal Philosophy Butterworths, London and Edinburgh, 1990
(v) Livingston S, “Round and round the Bramble Bush: From Legal Realism to
Critical Legal Scholarship”, (1982) 95 Harvard Law Review 1669
(vi) D.M. Davis, “The Scandanavian Realist - A way out of the Positivistic
Impase?” (1981) 98 South Africa Law Journal 388
(vii) H.K. Lucke, “The common Law: Judicial Impartiality and judge - made Law”,
Law Quarterly Review (1982) 98 p 29.
(viii) Adrienne van Blerk, Jurisprudence: An Introduction (1996,
Butterworths) Chapter 3.

5. CRITICAL LEGAL STUDIES

(Including Feminist Jurisprudence and Race Theories of Law)
i) Livingston D, “Round and round the Bramble Bush, From Legal Realism to
Critical Legal Scholarship”, (1982) 95 Harvard Law Reviews 1669
ii) Unger R.M. “The Critical Studies Movement”, (1982) 96 Harvard Law Review
561
iii) John van Doren, “Critical Legal Studies and South Africa.” (1989) 106 South
African Law Journal 648
iv) “Reviews: Critical Legal Studies”, 1984 Modern Law Review 359
v) David Hall, “The Constitution and Race: A Critical Perspective”, New York
Law School Journal of Human Rights.
vi) Higgingbotham A, “Race and the American Legal Process: The Colonial
Period”.
vii) Freeman A, “Legitimizing Racial Discrimination through Anti-Discrimination
Law: A Critical Review of Supreme Court Doctrine”, (1978) 62 Minnesota
Law Review 1094
viii) Freeman A, “Race and Class: The Dilemma of Liberal Reform” (1981)
90 Tale Law Journal 1880.
ix) Freeman A, “Antidiscrimination Law: A critical Review” in The Politics of Law
by D. Kairys (ed)
x) Tushnet M. “Sex, drugs and Rock’n Roll: Some conservative Reflections on
Liberal Jurisprudence”, (1982) 82 Columbia Law Review 1513

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 xi) David Andrew Price, “Taking Rights Cynically: a Review of Critical Legal
Studies”, Cambridge Law Journal (1989) Vol. 48p 271.

6. MARXIST THEORIES OF LAW AND CRITIQUE OF BOURGEOIS THEORIES

i) G. Plekhanov, Selected Philosophical Works (Volume 2) Lawrence and
Washart London, 1976 p596-622
ii) YU A, Kharin, Fundamentals of Dialectics 1981, Progress Publishers, Moscow
iii) M. Cornforth, Dialectical Materialism Vol.3 Thoery of Knowledge 1963
Lawrence and Wishart Ltd London.
iv) Sheptulin, Marxist-Lennist Philosophy 1978 Progress Publishers, Moscow.
v) rius, Marx for Beginners Pantheon Books, New York.
vi) Tumanov, Contemporary Legal Theory
vii) Jawitsch - General Legal Theoy
viii) Fine B, Democracy and the Rule of Law: Liberal Ideals and Marxist Antiques.
ix) Kempton Makamure, “Constitutional Theory and Practice for the Transition
from Capitalism to Scientific Socialism” Zimbabwe Law Review 1987, p108.
x) T. Tsikata, “The Marxist Theory of Law and its critique of Idealist Legal Thoery”
xi) J.w. Harris, Legal Philosophies (supra) chapter 19.
xii) Hugh Collins, Marxism and Law Oxford University Press, 1982
xiii) Alan hunt, “Reviews: Marxist Legal Theory and Legal Positivism”, (1982) 46
Modern Law Review p236
xiv) Lawrence Lustgarten, “Socialism and the Rule of Law”, British Journal of Law
and Society (1988) 15 p.25

7. THEORIES OF LAW AND SPECIFIC APPLICATIONS

 Rule of Law
 Judicial Reasoning and Judicial Activism
 Human Rights
 Justice
 Law and Social change and development
 Civil Disobedience
*NB: Most of the materials already referred to in other sections are relevant
here.
i. J.W. Harris, Legal Philosophies (supra) Chapter 11 and 20.
ii. International Commission of Jurists, Executive Action and the Rule of Law,
Geneva, Switzeland.

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iii. Welshman Ncube, “The Constitutional Recognition and Popular
Enjoyment of Human Rights in Zimbabwe”, Zimbabwe Law Review 1987
p54
iv. Joseph Raz, The Authority of Law Claredon Press, Oxford 1979
v. Miller David, Social Justice, Clarendon Press, Oxford 1976
vi. Robert M. Unger, Law in Modern Society The Free Press, New Yorks 1976
vii. Commonwealth Secretariat, Developing Human Right Jurisprudence
Vol. 1 and 2
viii. Wolfgong Friedman, Law in Changing Society Penguin Books, Ltd,
England 1922
ix. B. Bernart, “The Rule of Law” 1962 Acta juridica 99
x. D.M. Davis, “The Rule of Law and the Radical Debate”, 1981 Acta juridio
65
xi. Doreen Mcbarnet, “Law, Policy and Legal Avoidance, Can Law effectively
implement Egalitarian Policies?” British Journal of Law and Society
(1988) p113.
xii. Lovemore Madhuku, “The Impact of the European Court of Human
Rights in Africa: The Zimbabwean Experience”, 1996 The African Journal
of International and Comparative Law 932
xiii. Ben Hlatshwayo, “Judicial Activism and development - Warning
Signals from Zimbabwe” (1991-92) Zimbabwe Law Review 4.
xiv. Adrienne van Blerk, Jurisprudence: An Introduction (1996,
Butterworths), Chapter 8.
xv. Cass R. Sustein, The Partial Constitution (Harvard University Press
1994)
xviii. Robert Bark, The Tempting of America: The Political Seduction of the
law
(1990)
xix. Lawrence Tribe and Micheal Darf, On Reading the Constitution (1991);
xx. John Hart Ely, Democracy and Distrust (1980);
xxi. Lawrence Tribe, “The Puzzling Persistence of Process-Based Theories
of Constitutional Law”, 89 Yale Law Journal 1063 (1980);
xxii. Frederic Schawer, “Formulism” , 97 Yale Law Journal 509 (1988) and
Playing bythe Rules (1991).
xxiii. Patrick Monahan, Political and the Constitution: The Charter,
Federatism and the Supreme Court of Canada (Carswell, 1987);

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 xxiv. L.D. Barry, “Law, Policy and Statutory Interpretation under a
Constitutionally Entrenched Canadian Charter of Rights and freedoms”
(1982) 60 Candian Bar Review 237.
xxv. David A Strauss, “Common Law Constitutional Interpretation” 63
University of Chicago Law Review 877(1996)
xxvi. Lovemore Madhuku, “Law, Politics and the Land Reform Process in
Zimbabwe”, in M. Masiiwa (ed) Post Independence Law Reform in
Zimbabwe (2004) p124-146.

ESSAY ASSIGNMENTS

1. COMPULSORY ESSAY:

Consider the following celebrated debates in jurisprudence: “ Hart-Fuller debate” and

“Hart-Devlin debate”.

To what extent are these debates still relevant in modern jurisprudence?

Due date: 14 March, 2025.

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TUTORIAL QUESTIONS
1 (a) What is your understanding of the subject-matter of jurisprudence?
(b) Explain (even in a skeletal manner) what you understand by each of the
following terms:
i) “Philosophy of Law”
ii) “Legal Theory”
iii) “Legal Science”
c) Why should lawyers be trained in the philosophy of law?
2. “Modern jurisprudence is an intellectual battleground in which internecine
struggle is common-place and seem to represent its natural condition. Vast
intellectual energies are spent in hair-splitting exercises, and minor
disagreements are allowed or (encouraged) to mushroom into full-blown
intellectual wars. But the divergence of opinion is more apparent than real. But
the theoretical clamour and personal antagonism is a not-so-surprising
homogeneity of philosophical interest and political affiliation. There exists a
tacity shared agenda of issues to be confronted, and their attempted resolution
proceeds on the basis of joint assumptions about the availability and
acceptability of certain methods and answers”.
Could this observation be true in relation to the natural law theories?
3. “There is not one continuous tradition of natural law.” Discuss.
4. St Thomas Aquin as (1225-1274) synthesised a legal theory which is distinct in its
combination of christian and pre-christian notions of natural law. Outline and
critically discuss his theory.
5. What, in your view, is the main contribution of each of the following to our
understanding of modern theories of natural law:
(a) Lon L. Fuller?
(b) John Finnis?
6. Is there any substance in the controversy between Hart and Fuller over law,

morality and justice?

7. Both Austin and Hart belong to the positivist school of law, but there are critical

differences between them. In what aspects does Hart agree with, and to what
extent does he depart from, Austin’s positivism?
8. “Modified positivism”. Is this an accurate description of H.L.A. Hart’s theory of

law?
9. What is “pure” in Kelsen’s “Pure Theory of Law?”

10. The United Kingdom of Hoolia, is a small independent State in Africa. At the

beginning of 1996, its parliament hurriedly passed an amendment to its

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 constitution (Constitution of the United Kingdom of Hoolia Amendment No.2)
introducing an Executive President. The Minister of Justice, who “piloted” the
Act in Parliament, described the amendment as “the sweetest piece of
legislation ever passed in Africa”

Section 20 of the amendment provided:

1. Parliament may, by resolution supported by the votes of not less than two-
thirds of all its members, pass a vote of no confidence in the government.
2. Where a vote of no confidence in the Government is passed by Parliament in
terms of this section, the President shall within five days do one of the
following:
(a) dissolve the Parliament or
(b) himself resign his office
“Provided that where the President fails to
A ct in terms of paragraph (a) or (b)
within five days, he shall be taken to have
resigned.”
The constitution has a section 3 similar to that in Zimbabwe’s constitution.
On 20th October 1996, Parliament passed a vote of no confidence in the
Government of Executive President, Mr Niger Lacuna. Mr Lacuna did nothing for
ten clear days. At 10:00am on 31st October 1996, he announced the dissolution of
Parliament. Members of Parliament refused to resign whereupon Mr Lacuna
issued the following statement:

“The fact that I did no act within the five days provided for in the constitution is
beside the point because I have already dissolved Parliament and that is that.
Further, I am not going to call for elections as provided for in the Constitution, but
act according to my own whims as executive President. I will do what has never
been done in history, namely to appoint a Parliament, which I will proceed to do at
12 midnight.”
Acting in accordance with his statement, Mr Lacuna, at exactly 12 midnight of the
same day, announced a list of 120 names as members of a “New Parliament”. The
list of names was drawn from academics, businessmen, workers and peasants. 20
of the people named refused to take up the appointment. On 2 nd November 1996,
the appointed Parliament met and immediately enacted a set of laws, the most
important of which was “The New Parliament Act 1996” Section 2 of this Act
provides:

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 “2(1) The Parliament appointed by the President, is now considered elected.
(2) It shall be a serious offence to seek by any means to subvert the functions

of the new Parliament”.

The Act went further to provide that all other institutions in the country remained
as at 20th October 1996. Students at the only University in the country staged
demonstrations against the New Parliament demanding the resignation of the
“President and his begotten Parliament.” The University was immediately closed,
with the new government announcing that the University would open “after two
years at the earliest”. Members of Parliament were forced to leave their official
residences which were taken up by the appointed members. On 15th November
1996, Mr Muvheyo Sithole, a former member of Parliament addressed a huge
gathering at which he denounced the New Parliament and the Government of Mr
Lucana as unconstitutional. He added, amid long applause; “This is the highest
level of a mockery of constitutionality and constitutionalism.” He was arrested
and charged under section 2(2) of the New Parliament Act, 1996. The President
addressed a Press Conference just before the matter went to court and said;
“Mr Sithole is a disappointed politician being used by foreign agents. It is now
clear, as you all know, that with the exception of a few disturbances at the
University, (which we have now closed) the country is peaceful and under
control. Our judges, civil servants, the police, businessmen and workers are
doing their normal duties. The man is being unpatriotic. In any case, we will hold
elections in the next five years.”
Mr Sithole has approached you for legal advice of his chances of success in the
High Court of the United Kingdom of Hoolia. He want to challenge to legality of
the new regime of Mr Lacuna. Advise him.
11. “There has been a notable shift throughout the world from thinking of the task

of the legal order as one of adjusting the exercise of free wills to one of
satisfying wants for which free exercise of the will is but one. Accordingly, we
must start today from a theory of interests that is of the claims or demands or
desires which human beings either individuals or in groups or association or
relations, seek to satisfy, of which therefore adjustment of relations and
ordering of conduct through the force of politically organised society must take
account”. (per Roscoe Pound in “A Survey of Social Interest” Havard Law
Review Vol. 57, 1943, p.1)
Explore and explain the main ideas and trends in sociological jurisprudence.

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12. John Mackie has called Ronald Dworkin’s theory of law “The third theory of
Law”. He says: “I call it the third theory of law because it contrasts with legal
positivism and with the doctrine of natural law, and in some way intermediate
between the two.”
To what extent is this an accurate characterization of Ronald Dworkin’s theory
of Law?
See John Mackie, “The Third Theory of Law in Marshall Cohen (ed), Ronald
Dworkin and Contemporary Jurisprudence (1984) p161.
13. “A positivist might argue that principles cannot count as law because their
authority, and even more so their weight, are congenitally controversial.”
(Ronald Dworkin, Taking Rights Seriously, London, Duckworth, p.36). Critically
discuss how Ronald Dworkin deals with this argument. How central is this issue
to Ronald Dworkin’s theory of law?
14. What are the main features of Ronald Dworkin’s critique of:
a) positivism
b) natural law?
15. Contrast and place in social context American Realist and Scandinavian Theories
of Law.
16. Read the Article: “Legitimating Racial discrimination Through
Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” by
Alan Freeman (on Reserve) and answer the following questions:
a) Explain what the author means by the expressions “victim conception of
racial discrimination” and perpetrator perspective of racial
discrimination.
b) How, in the author’s view, has the “perpetrator perspective” been used to
promote racial discrimination through anti-discrimination law?
c) In what way/s is positivist jurisprudence suited to the needs of a court of
law bent to promoting racial injustice through anti-discrimination law?

17. Read David Hall: “The Constitution and Race; A critical Perspective” New York
Law School Journal of Human Rights (on reserve) and answer the following
questions.
a) “There are three concepts which appear to capture the framer’s modus

operand and confronted with the rights and conditions of African people.
They were: Silence, contradictions and compromise”. How does the
author illustrate this observation in relation to the treatment of the

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 African people by the framers of the Constitution of the United States of
America?
b) React to the following view;

“When confronted with the rights and conditions of African people in

Zimbabwe the framers of the Lancaster House constitution chose silence
contradictions and compromise.”
18. Marxism provides a total and holistic theory and explanation of law
unparalleled in its completeness by all the modern theories on law and legal
phenomenon. Discuss.
19. From which standpoint (legal theory) would you justify and substantiate each
of the following.
(a) Rule of Law? (b )Human Rights? (c) Justice?

Give a reasonable critique of the legal theories you reject for this purpose.

20. Consider the following statements:

(a) “During argument the view was expressed that justice was on the applicant’s
side but the law was on the respondent’s side. Admittedly law and justice do
not always coincide. Examples of oppressive and unjust laws can be found in
many countries. But this does not mean that the courts, which are sworn to
uphold the law, can ever allow their personal, subjective view of what
constitutes justice to override the clear provisions of the law.” (per Ebrahim
JA in a dissenting judgement in The Minister of Lands, Agriculture and Rural
Resettlement & Others v The Commercial Farmers Union SC 111/2001, page
54).

(b) The rule of law to me means that everyone must be subject to a shared set of
rules that are applied universally and which deal even handedly with people
and which treat like cases alike. It means that those who are affected by
official inaction should be able to bring actions, as did the respondent in casu,
on the basis of the official rules- i.e the law, to protect their interests.” [per
Chinhengo J in Commissioner of Police v Commercial Farmers Union 2000(1)
ZLR 503(H)].

Critically discuss the above statements in the light of any relevant legal
theories.

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21. What is the rule of law?

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