Published: Fri, 02 Feb 2018
Jurisprudence Dissertation Topics & Ideas
This page contains a selection of 6 dissertation topics and ideas on jurisprudence. Feel free to use these topics to help you create your own law dissertation topics.
Example Dissertation Topics & Ideas
1. Is there a place for Morality in the Rule of Law?
This dissertation topic will explore the jurisprudence of Fuller, Hart and Dworkin in order to determine if there is a place for morality in the rule of law. It will use a case study approach, so the application of rights will be applied to a variety of controversial subjects (such as, gender and sexuality rights stemming from the Wolfenden Report). The rationale for taking this approach is that the quagmire of morality and the law will not only be explored in theory, but also practice.
2. The Common Law Model has been identified as Essential to the Legal Origins Tradition, which enables harmonisation of laws through cultural development. To what extent is this model being successfully employed in enhancing the rule of law and liberalisation of economies in developing countries?
This discussion will explore the legal origins thesis, which supports the integration of legal norms through a common law system. This approach has been supported in the “Doing Business” Measures of the World Bank; whereby targets are set for countries to meet through the natural evolution of the domestic legislation. The rationale of this system is that the only manner for harmonisation of laws to occur (especially in developing countries) is through natural adaptation; as opposed the “direct transfer” of laws. Therefore, this discussion will examine the basis of this thesis, the arguments of cultural relatively and if the legal origins thesis is the most appropriate model to enhance the rule of law and liberalisation.
3. Does Rawls provide a model of law that successfully balances individual wants and the needs of the greater good?
The Rawlsian model can be identified as a model of re-distributive justice, which means that the law should be centred on equality. The concept of equality can result in individual rights being eroded for the greater good, thus This dissertation topic will explore laws that limit individual’s economic rights for the greater good (e.g. the compulsory purchase laws, or the empty property acquisition provisions). In order, to provide a fully rounded examination this discussion will compare the approaches in English, US and Canadian law, in order to determine if there is a place for re-distributive justice at the expense of individual property rights.
4. To what extent is Dworkin’s model of Rights Reflected in the Jurisprudence of the European Convention of Human Rights?
This dissertation topic will examine the Coalition Government’s calls for a British Bill of Rights, which focuses on the traditional principles of Mill (i.e. rights and responsibilities). The European Convention of Human Rights has been criticised for ensuring “unqualified” rights, but this is a misconception of the system. Rather, the Dworkian model of trumps is a more appropriate identification of the ECHR model. Therefore, this examination will assess Dworkin’s and Mill’s models of rights, and then determine whether the Coalition Government’s review of the ECHR is correct. Finally, it will identify whether the government’s recommendations or the ECHR’s approach is the best approach.
5. To what extent should judges be able to make decisions on political grounds? A Feminist Treatise on Political Decisions in the Judiciary:
This discussion will question whether there is such a concept as “value-neutral” law, which has been important in the development of equality and anti-discrimination laws. The “value-neutral” approach has been criticised by feminist commentators, because it is failing to ascertain the “differences” between men and women. Thus, the following topic will explore whether it is allowable for the judiciary to make political decisions. The approach that will be taken is to begin from the theory, and then to apply this theory by examining a number of so-called “feminist judgements”.
6. To what extent should (and can) the law be treated as separate from Politics and Economic? An Autopoetic Examination of the Rule of Law:
This dissertation topic will explore the reflexive model of law, as put forward by Luhmann and Teubner, in order to determine if law can be determined in abstract from the political and the economic. This discussion will begin from the positivist models of the law, and then consider if a “separated model” is appropriate. It will then move to the “systems model”, which accepts the multiple influences on the law. Finally, it will undertake a comparative review of various legal systems to determine if the reflexive model is more appropriate. These countries will include the German model, which has an abstract model of law, and English law, which is recognised to have a semi-reflexive model through the common law.
7. Critically evaluate Lord Devlin’s claim that the central function of the criminal law is to simply enforce a moral principle and nothing else.
The debate surrounding whether the criminal law is a mere enforcement of morality touches upon a heated topic and sparks endless arguments as to whether the law is an embodiment of moral codes, or whether it is necessarily based on something else. The fundamental question that will be explored by this study is: does the criminal law base its foundations upon concepts of immoral behaviour? This debate was largely a product of the controversy following the Wolfenden Report, though it has burned since the birth of the criminal law. An endless number of cases demonstrate the reluctance of the courts to interfere into the private sphere of the individual, yet if not in immorality, where do the criminal law’s roots lie? When can an act be justifiably prohibited at law? This study will examine the extent to which it can be said that the criminal law is based on moral assumptions and conclude that while it may be grounded in immorality, the limits of the law lie in the causation of harm to others. Ultimately, there is an important line to be drawn between immorality and actual harm where the law is concerned.
- Audi, R 2007. Moral Value and Human Diversity, New York: Oxford University Press.
- Curzon, LB 2001. Jurisprudence, 3rd edn, London: Cavendish.
- Devlin, P 1965. The Enforcement of Morals, Oxford: Oxford University Press.
- Dworkin, R 1966. ‘Lord Devlin and the Enforcement of Morals’, Yale Law Journal, vol. 75, no. 6.
- Hart, HLA 1963. Law, Liberty and Morality, Stanford: Stanford University Press.
8. Why We Obey Law: Positivism or Naturalism?
The debate between the plausibility of natural and positive law has resounded in all of its intricacy throughout legal theories for centuries. Profound and powerful arguments for each, however, remain almost equally convincing and although certain eras have seen one favoured over the other, any definite victory has occurred for neither. It is however accurate to state that natural law is somewhat more troublesome in its content and application than positive law; indeed, any attempt to prove that truth is absolute is ripe with theoretical problems. This study will explore the positivist/naturalist debate I a bid to explain why we obey the law. Can either provide a watertight approach to conformity with the law? A mere simplistic explanation of each approach will do little justice to the topic, and therefore an in-depth review is needed which attempts to link each theory to practical observations. It will ultimately be proposed that a hybrid approach to the understanding of why we obey law which combines features of both naturalist and positivist theories can provide a much more enlightening result.
- Bix, B 2009. Jurisprudence: Theory and Context, Carolina: Carolina Academic Press.
- Hart, H 1994. The Concept of Law, Oxford: Clarendon Press.
- Kennedy, D 1998. A Critique of Adjudication, Harvard: Harvard University Press.
- Simmonds, N 2008. Central Issues in Jurisprudence, London: Sweet & Maxwell.
9. Analyse and critically assess the claim that Human Rights require a universal set of moral foundations.
Any claim to human rights has the potential to justify almost any act on the assumption that it enhances and protects a specific right or set of rights. But exactly wherein are these rights grounded, and how can they make a claim to justify the actions involved in detaining suspected terrorists, for example? Can human rights be based upon universal moral principles, and if so, can this prevent abuses of such rights? This study will seek to argue that while rooting human rights within universal moral principles should seek to strengthen the duties created by them, a real account of universal moral foundations is not possible to achieve on any practical basis. In order to accomplish true universality, a level of simplicity or generality is required which is unable to withstand the application of the rights it upholds on any specific or practical level.
- Dworkin, R 1989. ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights, Oxford: Oxford University Press.
- Finnis, J 1980. Natural Law and Natural Rights, New York: Oxford University Press.
- Gewirth, A 1989. ‘Are There Any Absolute Rights?’ in J Waldron (ed), Theories of Rights, Oxford: Oxford University Press.
10. The central tenets of anarchism are so distinct from those of naturalism that the two could never be reconciled. Discuss.
The widely-known and exhaustively coined term ‘natural law’ has been a familiar and intriguing concept for centuries, as has the term ‘anarchy’. Yet this does not necessarily lead to the automatic presumption that such enthusiastic interest in the topics has resulted in any clear definition as to what they actually are. This study will closely explore these two theories and propose that, although natural law and anarchy are often viewed as extremist and opposite, they can actually be realistically applied to the nature of law. Moreover, it will also be proposed that anarchy and natural law both rely upon the same basic concepts – the rational, good nature of humankind. Although each theory uses this to discredit or credit certain forms of law, the fundamental content of human nature is the same for both theories. Conclusively, it will be demonstrated that, while anarchism appears to be rather radical, it is nonetheless more convincing and much less distortive of the nature of law than naturalist theories.
- Baldwin, R 1917. Kropotkin’s Revolutionary Pamphlets, New York: Dover Press.
- Darwall, SL 1995. The British Moralists and the Internal ‘Ought’: 1640-1740, Cambridge: Cambridge University Press.
- Kropotkin, P 2002. Anarchism: A Collection of Revolutionary Writings, RN Baldwin (ed), New York: Dover Publications.
- Schiff, D, Penner, J & Nobles, R (eds) 2005. Introduction to Jurisprudence and Legal Theory: Commentary and Materials, New York: Oxford University Press.
11. Can the Rule of Law ever be a realistic or successful aspiration for a socialist state? Use a current socialist system as a point of reference.
The rule of law, with its high demands of any legal system that seeks to appeal to legitimacy, is often considered to be but a distant yet unattainable hope for socialist systems. This issue has been pushed into the spotlight as a result of China’s recent efforts to eliminate corruption within its system and to establish a rule of law. Due to the obstacles it has faced, most have simply concluded that China’s socialist system is simply unable to accommodate the rule of law. This study will examine such claims and demonstrate that they have been prematurely reached. On the contrary, such sceptical conclusions are based upon a western democratic definition of the rule of law, which express a poor understanding of China’s complex political tradition and history. This study will explore the traditional rule of law model and propose an alternative which is to a large extent evident in China’s current political and legal system. This requires that a more profound understanding of the socialist rule of law be achieved; an understanding which is readily provided by China.
- Buoye, T, Denton, K & Dickson, B 2002.,China, Adapting the Past, Confronting the Future, Ann Arbor: University of Michigan Press.
- Diamant, NJ, Lubman, SB & O’Brien, KJ 2005. Engaging the Law in China: State, Society, and Possibilities for Justice, Stanford: Stanford University Press.
- Horsley, JP 2007. ‘Rule of Law in China: Incremental Progress’, in CF Bergsten, N Lardy, B Gill & D Mitchell (eds), China: The Balance Sheet, New York: Centre for Strategic and International Studies.
- Lubman, SB 1999. Bird in a Cage: Legal Reforms in China after Mao, Stanford: Stanford University Press.
12. Critically examine the relevance/influence of Positivism to modern society.
Positivism essentially ascribes to the claim that ethics must necessarily be impartial. Positivists, then, argue that jurisprudence should be approached as a way to establish a boundary between law and ideology so that only the former may act as a basis for legal decisions. The positivist abhors references to universal morality as a basis for determining what ought to be and what ought not to be. The core of positivism is sceptical of universal statements because it ascribes to the claim that beliefs differ between individuals, and thus that values are expressed differently. This study will explore the core tenets of positivism and assess whether its influence today is existent, and to what extent. A critical analysis of positivism will also be undertaken in a bid to examine whether its claims are plausible and convincing. Fundamentally, the link between law and morality will be questioned, a link that positivists frequently seek to disprove. In applying the issue to the modern world of law, it will be ultimately argued that positivism indeed appears to be dominant today, though when reference to non-legal considerations is necessary, the link between law and morality is real, unavoidable and desirable.
- Austin, J 1954. The Province of Jurisprudence Determined and the Uses of the Study of Jurisprdence, London: Weidenfeld and Nicolson.
- Bentham, J 1970. Of Laws in General, HLA Hart (ed), London: Athlone Press.
- Dyzenhaus, D 2000. ‘Positivism’s Stagnant Research Programme’, Oxford Journal of Legal Studies, vol. 20, no. 703.
- Kelsen, H 1991. General Theory of Norms, M Hartney (trans.), Oxford: Clarendon Press.
13. Rather than an aberration of civilisation, Bauman argues that modernity provided the necessary conditions for the Holocaust, including the necessary distancing from preternatural morality.
It is commonly stated without question that the occurrence of the Holocaust under the Third Reich was a peculiarity, or at least a unexplained departure from civilisation. Yet closer examination and dissection of the elements of the Holocaust and how it was executed uncovers an entirely different result. Bauman indeed claims that the Holocaust was not only a normal social event, but similarly that without modernity and all that it embodies, the Holocaust could not have advanced as far as it did. This study will analyse the occurrences of the Holocaust beyond preconceptions concerning it being a product of extreme discrimination and hatred. The study will conduct an analysis based upon modernity as contained in the conglomerated elements of industrialisation, bureaucracy and rationality; all of which were notably present during the Holocaust. A critical assessment of Bauman’s theory of modernity will be undertaken, concluding in general support of his claim that the Holocaust was the embodiment of modernity.
- Bauman, Z 1989. Modernity and the Holocaust, Polity Press, Cambridge.
- Garland, D 2001. The Culture of Control, Oxford: Oxford University Press.
- Hilberg, R 2003. The Destruction of the European Jews: Volume 3, 3rd edn, New Haven: Yale University Press.
- Matravers, M 2005. Managing Modernity: Politics and the Culture of Control, Oxon: Routledge.
14. The merits of liberal feminism and its impact upon the English legal system.
The roots of liberal feminist theory have caused the movement to seek a suitable foundation for the law in demanding and demonstrating the possibility of an equal approach to men and women. Yet has this theory been able to propose realistic rather than theoretical policy changes? This study will analyse the central tenets of liberal feminism and attempt to apply its proposals and demands to the law. Whether the legal system has thus far been able to respond to liberal feminist requirements will be evaluated, though it will be ultimately demonstrated that the failure of liberal feminism to convert theory into practice is a result of its own shortcomings. Without the ability to develop into plausible proposals for legal change, it is unlikely that liberal feminism will be able to have any real influence over the law’s treatment of men and women.
- Barnett, H 1997. Sourcebook on Feminist Jurisprudence, London: Cavendish.
- Penner, JE 2002. McCoubrey and White’s Textbook on Jurisprudence, 4th edn, New York: Oxford University Press.
- Smith, P 1993. Feminist Jurisprudence, New York: Oxford University Press.
- Smart, C 1989. Feminism and the Power of Law, London: Routledge.
- Whelehan, I 1995. Modern Feminist Thought from the Second Wave to ‘Post-Feminism’, Edinburgh: Edinburgh University Press.
15. Unger identifies the most important principles of the Critical Legal Studies movement. What are they and how might they help (by a way of comparison to Dworkin’s jurisprudence) to explain how law and a legal system operate?
The rather radical and extreme stance adopted by the CLS movement is more often than not misinterpreted and unduly criticised. CLS essentially refutes our perceived need for law and claims the futility of law and legal rules due to its basis upon contrived ideals of authority, precedent and justice. However, it fails to suggest how such problems can be eased or solved. This study will critically evaluate the CLS movement in light of Unger’s contributions to the theory and highlight the point that, while critics of CLS seek solutions to problems, the CLS movement does not purport to provide such solutions. It is perhaps an exquisite part of its beauty that it merely states identifies the inadequacies of the law without seeking to resolve them. It ultimately describes the law and humbly does not seek to propose what it should be. Attaching relevance to Dworkin’s notions of fairness and justice, it will be demonstrated that there can exist a way in which CLS can be understood in a more profound and logical manner.
- Belliotti, RA 1992. Justifying Law: The Debate over Foundations, Goals, and Methods, London: Temple University Press.
- Dworkin, R 2010. Justice for Hedgehogs, New York: Belknap Press.
- Kelman, M 1987. A Guide to Critical Legal Studies, Harvard: Harvard University Press.
- Unger, R 1982. ‘The Critical Legal Studies Movement’, Harvard Law Review, vol. 96, no. 561.
16. Is it ever justifiable to sacrifice individual rights for collective security?
Theories focusing upon the importance of individual and collective rights have often sought to justify the prevalence of one over the other. In view of modern-day state infringements of individual rights, the issue has become increasingly heated. This is particularly the case in the context of threats to individual privacy and freedom in response to terrorism. State infringements of individual rights all too easily quote the prevailing importance of collective security which apparently functions to justify coercion. The quest to ensure the security and safety of the collective has become committed to the assumption that individual rights can not only justifiably, but also necessarily be infringed or sacrificed. This study will explore existing theories in relation to the difficult conflict between individual and collective rights, touching upon theories such as the social contract and utilitarianism. These theories, by being applied to contemporary issues such as recent terrorist attacks, will test the assumption that collective security is more important than individual rights. Yet, it will be concluded that there must be stringent limits on the extent to which the latter can be infringed in the quest for the former, lest individual rights become so fragile that collective security is rendered a distant historical fallacy.
- Dworkin, R 1989. ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights, New York: Oxford University Press.
- Hobbes, T 1969. The Elements of Law, Natural and Politic, Oxon: Routledge.
- Mill, JS 1859. ‘On Liberty’ in J Gray & JS Mill (eds), On Liberty and Other Essays, New York: Oxford University Press.
- Rawls, J 1993. Political Liberalism, New York: Columbia Press.
- Riddall, JG 2005. Jurisprudence, 2nd edn, London: Butterworths.
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