Video transcript: Part A of the

Jurisprudence Exam paper

Prof Jill Marshall, Jurisprudence

There are three main purposes or aims of this lecture:

 The first is to provide an overview of the format for the Jurisprudence exam paper.
specifically focus on Part A of the exam paper.

 The second is to focus in with a brief explanation of some of its facts

and the decision.

 The third main aim of the lecture is to introduce you to some aspects of the themes
identified in your guidance, by reference to the first theme on Dworkin.
By way of introduction, you need to be aware that students often fall down or lose marks because
of the way they answer the questions asked. You could know everything about the topic and the
set case but your difficulty is in formulating your thoughts coherently and in a structured and
focused way in the time available in the exam. This is very common.
I want you to get the exam marks you deserve after all the hard work you have put into the subject
and we appreciate it is a difficult subject. However you must not memorise a stock answer and
regurgitate it in the exam by, for example, setting out everything you know about the case and
everything you know about the relevant theory. You need to interconnect the two and think
intelligently and engage with the question.
As an introductory general point, I would say always answer the required number of questions.
Why not set some time aside and pretend you are
revision, see how you
get on by doing your own mock exam? You can look at past papers and exam reports.
In the exam, interpret the question what do you think it means?
Consider and reflect on all you have read in the light of the question and plan your essay structure.
Think about what and how you could write relating the content of the course to the question
asked
Any essay should have:

 An Introduction

 A main body where you set out your substantive knowledge, analysis, critique of the
materials

 A Conclusion no new points

 Proper accreditation of sources with use of primary and secondary sources

December 2018 Page 1 of 6

Part A of the Jurisprudence Exam paper

interpreted the question and think you know what it means. Say so in your introduction
and explain why you think that. Set out in your Introduction how you are answering the question
eg you will be answering in three parts with a conclusion; in themes; with headings; to show that
and take a position. S
attention perhaps a quote?
Own your essay: by this I mean you are the author. There is no model answer, just remember that
as you are writing. Show knowledge of the information. Show evidence for your position
supported by primary and secondary sources. Convey your reflection and thought on the issues
raised to analyse the materials and criticise them constructively in appropriate professional style
and language. Try to leave time at the end to re-read and edit if you can. Look at your structure
how does it look? Is your essay excellently presented? Is it in plain English with short sentences?
Does it make sense? Is it clearly organised? You can use headings and subheadings. It is often
useful to do that for the reader/examiner. Try to make a good first impression on the examiner
with no spelling errors; avoid abbreviations such as this sounds too informal. Have you
conveyed your knowledge to the reader/examiner? In the exam, stay calm, read carefully, comply
with the rubric of the exam paper and answer all the questions you need to.

For Jurisprudence, there is Part A and Part B. You are required to answer one question from Part A
and three from Part B. There will be approximately 12 questions in total for you to choose from.
Follow all the instructions and, as I said, always answer the required number of questions: write
what you can, including using bullet points if you have run out of time.

So what is Part A all about? The aim of Part A is to develop your skills in identifying the relevance,
significance, and applicability of general theories of law in real contexts of legal practice.
You will be assessed on your ability to identify possible clashes between compelling theories of
law within these contexts and critically to discuss which of these theories best explains the
decision. This will also reflect your ability to think about the decision, and legal practice in general,
by questioning its foundational presuppositions with the help of general legal theories.
Your task rse is to read the case of In the matter of M (Children) [2017] EWCA Civ
2164 Court of Appeal Judgment 20 December 2017. You are required to answer one out of three
questions in the examination on this set case.
You should be able easily to locate the case exercising the skills you have already learned during
your legal studies. The examination questions will focus on the Court of Appeal judgment. The
earlier judgment of Mr Justice Peter Jackson is not the focus, except insofar as it is referred to in
the Court of Appeal Judgment. Nevertheless, familiarity with it will help you form a more rounded
and better informed view of the legal philosophical issues to which the case gives rise.
Please note that you are not required to discuss the doctrinal legal aspects of the case and no prior
knowledge of family law is expected. You are required to examine and analyse how the case is
situated within and exemplifies legal philosophical arguments and implications.
As you know, a case which ends up in court begins with a set of social facts. Someone might be
injured as a result of others, a business may suffer a loss, and so on. Others, such as police,
prosecution, lawyers, judges are called upon and then these social facts are ascribed a legal
meaning. In this case, the judgment of the Court of Appeal shows that a legal judgment affects the
legal meaning of some social facts. You should employ your knowledge of legal philosophy to

December 2018 Page 2 of 6

Part A of the Jurisprudence Exam paper

interpret the case and tease out the deeper meaning of the judgment, always bearing in mind the
specific social context in which it is played, and critically and originally to reconstruct it.

So as I have said in the examination, there will be three questions to choose from in Part A. That is,
one on each of the following perspectives, and you will have to answer ONE:
1) Theories of adjudication and judicial interpretation of law;
2) Feminist legal theory;
3) Liberalism and law.
There will be three separate specifically drafted questions in the exam, one for each of these
themes, related to the set case.
These three themes are also potential topics for coverage in Part B of the exam. However, Part B
questions will specifically state that students cannot answer a particular question from Part B if
they answer another particular question in Part A. As for any exam answers, if there is substantial
overlap or duplication in any answers at all, then students will not be able to benefit from
repeating the same material.
is to develop your skills in identifying the relevance, significance, and
applicability of general theories of law in real contexts of legal practice. Examiners will be looking
for evidence of your ability to apply general theory to real contexts, and not general knowledge of
the relevant theories. The set case itself must be your starting point and scripts which only provide
general accounts of legal theories instead of applying them to the set case, or scripts which simply
set out the facts and decision of the set case, will have failed to address the question and will
therefore be marked accordingly.
L look at the case by reference to the Court of Appeal judgment. This is an appeal from the
judgment and order of Mr Justice Peter Jackson, as he then was. The case involved a father and
mother of five children whose age ranges at the time of the Court of Appeal judgment ranged
from 13 to 3 years old. The father is transgender and left the family home in January 2015 to live as
a transgender person. She now lives as a woman. Because she is transgender, and for that reason
alone, she is shunned by the Ultra-orthodox Jewish community in north Manchester in which she
had previously lived and in which the mother and their five children still live. Because the father is
transgender, and for that reason alone, the children face ostracism by the community if they have
direct contact with her. Mr Justice Peter Jackson who had given the earlier judgment in this case
- had characterized the practices within the community as unlawful discrimination against, and
victimization of, the father and the children because of t (see
paragraph 7 CA Judgment).
In his earlier judgment, Mr Justice Peter Jackson
contact with his children. The order provided for limited indirect contact but not direct contact.
The father was given permission to appeal and certain interest group organisations Stonewall
Equality Ltd and Keshet Diversity UK were given permission to intervene in the appeal by way of
written submissions.
For Mr Justice Peter Jackson, th
as set out in paragraph 8).
en would suffer serious harm if they were deprived of a relationship with their
father as set out in paragraph 9). But decided
amounting to a probability, that these children and their mother would be rejected by their

December 2018 Page 3 of 6

Part A of the Jurisprudence Exam paper

community if the children were to have face-to-face contact with their father
paragraph 10).

community was so real and the consequences so great that this one factor must prevail over the
many advantages of contact (paragraph 10).
The Court of Appeal reversed his decision. Two principles of family law were decisive: they are that

There are many relevant facts set out in the Court of Appeal, which heavily refers to the earlier
judgment. You can and should refer to these, and consider all of the judgment in conjunction with
the specific three themes for the purposes of your revision. These include the evidence of
witnesses and their opinions of the religious views of the community and of orthodox Judaism in
relation to transgender.
In terms of analysis of the case, you should employ your knowledge of legal philosophy to
interpret the case and tease out the deeper meaning of the judgment, always bearing in mind the
specific social context in which it is played out, and critically and originally to reconstruct it. There
are many more points made by the Court of Appeal and the principles involved which you need to
reflect upon and consider for yourselves. It is not beneficial for you for me to go through every line
of the Judgment: we want to see you originally engaging with it.
I am now going to focus on the first of the identified themes, in terms of the legal philosophies.
Theories of adjudication and judicial interpretation of law.
The starting point for preparation is your Study guide chapter on Ronald Dworkin.
Look at the relevant chapter in the Study guide - especially regarding on
other views of
adjudication that are viewpoint and his interpretative theory. Some of
the questions on which to focus are the following:

 How can principles determine judicial decisions?

 How are principles grounded in law?

 How ought they to be grounded?

 What wo

 Is the decision taking into account policies or principles?


judgment, if at all?

 Does the court exercise moral discretion or is the Set Case properly premised in pre-
existing law?
For the purpose of this lecture,
interpretive theory, including positivism, his discussion of discretion, the
importance of principles and their distinction with policies.
You must then think about how this interconnects to an analysis of the set case and points made
in it. But you must be aware that you must in terms of just
describing it in answering whatever the question may be.

December 2018 Page 4 of 6

Part A of the Jurisprudence Exam paper

and Positivism Dworkin argued those were

incoherent. According to Dworkin, Hart has his facts of legal practice wrong and the basic

law is a system of rules. Dworkin says this is insufficient. he says is not a case of
looking at the legal system and seeing what system of rules are in place. In Dworkin s view, the
separation thesis, that is, separating law and morality, is inadequate and incorrect.
Law involves much more it involves a process of interpretation necessarily more than describing.
for more details of that see for
example, Penner, Schiff and Nobles page 72-73. There will be an interpretation, an emphasis, and
judgement needs to be made about the set of facts.
Positivists say rules apply in an all or nothing way. So they cannot conflict.
Dworkin explains the positivist as saying if
exercise his discretion to decide that case by what amounts to a fresh piece of legislation
Dworkin in Taking Rights Seriously at page 31. But this is wrong says Dworkin: Judges do not
exercise discretion in the way the positivists say they do. And he then spends some time exploring

He talks about a situation where someone is in general charged with making decisions subject to
standards set by a particular authority e.g. a sports official governed by a rule book this person
discretion, like a hole in a doughnut, does not exist except
as an area left open by a surrounding belt of restriction It is always relative, we always need to ask
discretion under which standards or as to which authority
What discretion means depends on context. Dworkin then discusses weak and strong discretion:

So he says for weak discretion involves the use of judgement e.g. the sergeant was ordered by
the lieutenant to take his five most experienced men on patrol but it was hard to determine who
were the most experienced. However as he says in page 32 Taking Rights Seriously order
.

This can be contracted with strong discretion an official is simply not bound by the standards
set by the authority at all.
(Dworkin says) Positivists are saying a judge has no discretion when a clear and established rule is
available. For example Hart says all rule - If two equally trained judges can
agonise and disagree over points of law. This involves discretion in the first weak sense. But
sometimes it seems positivists mean when they talk about discretion, they mean something to do
with discretion in the strong sense - not bound by any standards from the authority of law the
judge has run out of rules he has full strong discretion.
how Dworkin is looking at it.
He also talks about principles. He says some principles that count and others that do not and
some count more than others depending on the case. He talks about the cases of Riggs v Palmer
(1889) and Henningsen v Bloomfield Motors Inc (1960) so you might want to look again to refresh
your memory at these cases and what Dworkin s says about those.
Any judge proposing a change must take into account some important standards that argue
against departures from established doctrine. These standards are mostly principles. They include
e.g. legislative supremacy, precedent. In hard cases, judges look to these. So positivists, Hart, are
inaccurate in their view as it cannot account for principles.

December 2018 Page 5 of 6

Part A of the Jurisprudence Exam paper

The origin of these as legal principles lies not in a particular decision of some legislature or court,
Says
Dworkin 1977 p 37-44 see page 347 PSN.
The law is not just there as positivists say
new rule or law is created. Judges do not decide hard cases in 2 stages first checking where the
setting the books aside to stride off on their own (see Dworkin s
Taking Rights Seriously page 86).
Instead, a principle justifies a decision by showing it respects or secures some individual right.
Judicial decisions enforce existing political rights institutional history acts as an ingredient to the
. Rights are creatures of Institutional history and morality. Consistency is needed.
Political rights are creatures of both history and morality (this is the Rights thesis).
Overall, Dworkin takes the view that judges should decide cases in a way which makes the law
more coherent, a single moral vision. A coherent conception of justice and fairness. This fits with

• Equality law needs to treat each and every person as an equal. Each person is entitled to
(1) equal concern (because we are each capable of suffering and frustration) and (2) equal
respect (because we are capable of forming and acting on intelligent conceptions of how
our lives should be lived)
• judge interprets the law of his [or her] jurisdiction to reveal it as the most morally
sound body of law it can be, given the actual legal history the judge finds
PSN p 385
So those are just some points on Dworkin. You need to link that in to the case. So to recap, there
are three themes in Part A, elements of one of these have been discussed here but you must relate
it all to whatever the specific question asked. The other two themes are Feminist legal theory and
Liberalism and law. Please note, there are no model answers. Be aware of producing similar
answers with similar material in any answers you give in the examination paper. It is your answer
that the examiners are looking for, not a stock answer prepared by an institution or in combination
with a particular study group. A stock answer is unlikely to gain a good mark. Do not answer X
even though such a question does not appear on the paper! And lastly GOOD LUCK!!!

December 2018 Page 6 of 6