Podcast
Questions and Answers
What does the separability thesis argue in the context of legal positivism?
What does the separability thesis argue in the context of legal positivism?
- There is no necessary connection between law and morality. (correct)
- Moral laws should take precedence over legal laws.
- Law's validity is rooted in moral standards.
- Law and morality are intertwined and depend on each other.
According to John Austin's command theory of law, what is the nature of law?
According to John Austin's command theory of law, what is the nature of law?
- Laws are guidelines for moral behavior.
- Laws reflect the collective will of the people.
- Laws are commands from a sovereign backed by punishment. (correct)
- Laws are derived from social contracts among citizens.
What is the primary argument against legal positivism presented by Joel Feinberg?
What is the primary argument against legal positivism presented by Joel Feinberg?
- Legal systems must evolve based on moral progress.
- Obedience to law should be based on social consensus.
- Laws should uphold moral standards above all else.
- It is absurd to obey laws solely because they are laws. (correct)
What characterizes the rule of recognition in H.L.A. Hart's theory?
What characterizes the rule of recognition in H.L.A. Hart's theory?
How do rules differ from principles in legal theory?
How do rules differ from principles in legal theory?
What perspective does Dworkin's theory of adjudication represent?
What perspective does Dworkin's theory of adjudication represent?
What idea does Harold Lasswell and Myres McDougal's characterization of law emphasize?
What idea does Harold Lasswell and Myres McDougal's characterization of law emphasize?
What is the stance of legal positivists regarding immoral laws?
What is the stance of legal positivists regarding immoral laws?
What does the concept of law being a 'political tool' imply?
What does the concept of law being a 'political tool' imply?
How does legal positivism respond to the relationship between law and morality?
How does legal positivism respond to the relationship between law and morality?
Which term refers to laws specifically for Roman citizens?
Which term refers to laws specifically for Roman citizens?
What element of a crime refers to the guilty intention behind an act?
What element of a crime refers to the guilty intention behind an act?
Which of the following is a classification of crime that involves harm against property?
Which of the following is a classification of crime that involves harm against property?
What philosophical theory posits that law and morality are inherently linked?
What philosophical theory posits that law and morality are inherently linked?
Which argument against natural law theory suggests it could lead to anarchy?
Which argument against natural law theory suggests it could lead to anarchy?
What is the primary focus of international law?
What is the primary focus of international law?
Which of the following best describes legal positivism?
Which of the following best describes legal positivism?
What term is used for crimes that do not directly harm others but primarily affect the person committing them?
What term is used for crimes that do not directly harm others but primarily affect the person committing them?
Which of the following represents acts or omissions that can result in legal penalties for the perpetrator?
Which of the following represents acts or omissions that can result in legal penalties for the perpetrator?
Which statement best reflects the nature of jus gentium?
Which statement best reflects the nature of jus gentium?
Flashcards
Positive Law
Positive Law
Human-made law, also known as civil law or written law.
Jus Civile
Jus Civile
Roman law for citizens; heavily based on legislation.
Jus Gentium
Jus Gentium
Roman law for non-citizens, similar to international law
Criminal Law
Criminal Law
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Actus Reus
Actus Reus
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Mens Rea
Mens Rea
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Natural Law
Natural Law
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Overlap Thesis
Overlap Thesis
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Legal Positivism
Legal Positivism
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Elements of Crime
Elements of Crime
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Separability Thesis
Separability Thesis
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Is-Ought Fallacy
Is-Ought Fallacy
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Command Theory of Law (Austin)
Command Theory of Law (Austin)
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Rule of Recognition
Rule of Recognition
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Rules (vs. Principles)
Rules (vs. Principles)
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Principles (vs. Rules)
Principles (vs. Rules)
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Dworkin's Theory of Adjudication
Dworkin's Theory of Adjudication
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Law and Politics
Law and Politics
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Policy Oriented Jurisprudence
Policy Oriented Jurisprudence
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Study Notes
Positive Law
- Also called civil law, municipal law, or written law
- Jus Civile: Roman law for citizens
- Jus Gentium: Roman law for non-citizens (later became international law)
- International law governs relations between states
Criminal Law
- Deals with acts/omissions against the community
- Penalties imposed by the state
- Types: Economic offenses (robbery, theft), offenses against the state, offenses against other people (physical injury, rebellion, treason), offenses against oneself (illegal gambling)
Elements of a Crime
- Actus Reus (guilty act): Commission or omission of an act violating the law
- Mens Rea (guilty intent): Specific desire to commit the act or omit a duty (mental element)
- Causation: Act/omission must be the cause of the injury
Natural Law Theory
- Essence of law is morality and justice
- No separation between law and morality (overlap thesis)
- Natural law posits that a law's morality determines its validity; Law must reflect what is good and just.
- Contrasts with positivism
Positivism
- Law is made by humans
- No law beyond human-made law
- Developed in the 19th century (rise of colonization)
- Law's validity solely dependent on its creation by a legitimate authority.
Arguments For Natural Law
- Citizens can condemn/disobey unjust laws based on morality.
Arguments Against Natural Law
- Jeremy Bentham and John Austin argue that if laws are tested against individual morals, it would lead to anarchy.
Legal Positivism
- Opposite of natural law theory
- Law's worth based on social conventions/compliance with moral standards
- Law's validity is determined by its source and procedure, not its content.
Law and Politics
- Both concerned with power
- Law is viewed as a political tool (Lenin)
- Jurisprudence views law as authoritative decision-making, combining authority and control.
Legal Positivism Arguments
- Separability Thesis: Law and morality are separate
- Is-Ought Fallacy: A law is a law even if immoral.
Austin's Command Theory of Law
- Laws are commands of a sovereign backed by threats of punishment.
Hart's Rule of Recognition
- Subjects obey laws because they recognize the institution's right to make them
- Monarchic sovereignty: Subjects comply with laws made by the monarch
- Rule of recognition: Establishes the state's rule-making institutions
Legal Positivism and Adjudication (Dworkin)
- Middle ground between natural law and legal positivism
- Law is a complete, continuous system
- Judges may use legal principles/standards when no specific rule applies
- Rules are all or nothing; Principles are weighed and balanced to reach a decision.
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