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Questions and Answers
Which of the following best describes the central tenet of Legal Positivism?
Which of the following best describes the central tenet of Legal Positivism?
- The interpretation of law is subjective and influenced by judicial discretion.
- Law is based on the inherent moral principles of justice.
- Law is a social construct derived from established rules and norms. (correct)
- The validity of law depends on its alignment with natural laws.
John Austin's Command Theory of Law states that all laws must be accompanied by a sanction to be valid.
John Austin's Command Theory of Law states that all laws must be accompanied by a sanction to be valid.
False (B)
What is the significance of the "rule of recognition" in H.L.A. Hart's theory of law?
What is the significance of the "rule of recognition" in H.L.A. Hart's theory of law?
The rule of recognition provides a way to determine the validity of laws within a legal system. It establishes the criteria by which officials recognize and apply legal rules, essentially defining what counts as a law within that jurisdiction.
Critical Legal Theories argue that law is influenced by ______ structures, often reinforcing power imbalances.
Critical Legal Theories argue that law is influenced by ______ structures, often reinforcing power imbalances.
Match the following legal thinkers with their key theories.
Match the following legal thinkers with their key theories.
Which of the following is NOT one of the four types of law identified by Thomas Aquinas?
Which of the following is NOT one of the four types of law identified by Thomas Aquinas?
Natural Law Theory suggests that unjust laws are not considered true laws because they violate fundamental moral principles.
Natural Law Theory suggests that unjust laws are not considered true laws because they violate fundamental moral principles.
What is a key difference between Legal Positivism and Natural Law Theory?
What is a key difference between Legal Positivism and Natural Law Theory?
Who is the key thinker associated with Critical Legal Studies?
Who is the key thinker associated with Critical Legal Studies?
According to legal realism, judges' personal biases have no effect on their decisions.
According to legal realism, judges' personal biases have no effect on their decisions.
What theory suggests that laws should be viewed from the perspective of someone who wants to avoid punishment?
What theory suggests that laws should be viewed from the perspective of someone who wants to avoid punishment?
Judicial discretion refers to the extent to which judges can interpret and apply _____ .
Judicial discretion refers to the extent to which judges can interpret and apply _____ .
Match the following legal theories with their focus:
Match the following legal theories with their focus:
What does the term 'Rule of Recognition' refer to in Hart's theory?
What does the term 'Rule of Recognition' refer to in Hart's theory?
Natural Law Theorists believe that an unjust law holds true legal authority.
Natural Law Theorists believe that an unjust law holds true legal authority.
What key challenge to the Rule of Law relates to the unpredictability of law?
What key challenge to the Rule of Law relates to the unpredictability of law?
According to legal positivists, laws are valid based on _____ and procedures.
According to legal positivists, laws are valid based on _____ and procedures.
Who argued that law has an 'inner morality'?
Who argued that law has an 'inner morality'?
Which of the following is NOT one of Fuller's criteria for valid laws?
Which of the following is NOT one of Fuller's criteria for valid laws?
Legal realists argue that law consists solely of written statutes.
Legal realists argue that law consists solely of written statutes.
What is the primary focus of Critical Legal Studies?
What is the primary focus of Critical Legal Studies?
In Natural Law Theory, the __________ is considered to be moral laws discoverable by reason.
In Natural Law Theory, the __________ is considered to be moral laws discoverable by reason.
Match the key thinker to their respective theory:
Match the key thinker to their respective theory:
According to legal positivism, what is law based upon?
According to legal positivism, what is law based upon?
Natural Law Theorists believe that unjust laws cannot be considered valid laws.
Natural Law Theorists believe that unjust laws cannot be considered valid laws.
What does Jerome Frank mean by 'judge-made law'?
What does Jerome Frank mean by 'judge-made law'?
According to legal positivism, a valid law must be issued by a __________ authority.
According to legal positivism, a valid law must be issued by a __________ authority.
Match the following terms with their definitions:
Match the following terms with their definitions:
What does the 'Bad Man' theory suggest about understanding law?
What does the 'Bad Man' theory suggest about understanding law?
Critical Race Theory asserts that law is neutral and serves all racial groups equally.
Critical Race Theory asserts that law is neutral and serves all racial groups equally.
Name one key figure associated with Feminist Legal Theory.
Name one key figure associated with Feminist Legal Theory.
The __________ of Recognition is Hart's concept that legal systems depend on accepted rules.
The __________ of Recognition is Hart's concept that legal systems depend on accepted rules.
Flashcards
Legal Philosophy
Legal Philosophy
The study of the nature, sources, and functions of law.
Legal Positivism
Legal Positivism
Law is a social construct derived from established rules, not morality.
John Austin
John Austin
Key legal positivist known for the Command Theory of Law.
Command Theory of Law
Command Theory of Law
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H.L.A. Hart
H.L.A. Hart
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Rule of Recognition
Rule of Recognition
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Natural Law Theory
Natural Law Theory
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Thomas Aquinas
Thomas Aquinas
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Legal Realism
Legal Realism
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The Bad Man Theory
The Bad Man Theory
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Indeterminacy of Law
Indeterminacy of Law
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Critical Legal Theory
Critical Legal Theory
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Natural Law Theory vs Legal Positivism
Natural Law Theory vs Legal Positivism
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Rule of Law
Rule of Law
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Judicial Discretion
Judicial Discretion
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Critical Race Theory (CRT)
Critical Race Theory (CRT)
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Feminist Legal Theory
Feminist Legal Theory
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Command Theory
Command Theory
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Unjust Law
Unjust Law
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Inner Morality of Law
Inner Morality of Law
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Judge-Made Law
Judge-Made Law
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Critical Legal Studies
Critical Legal Studies
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Sovereignty
Sovereignty
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Positivism
Positivism
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Duncan Kennedy
Duncan Kennedy
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Catharine MacKinnon
Catharine MacKinnon
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Jerome Frank
Jerome Frank
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Critical Race Theory
Critical Race Theory
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Study Notes
Introduction to Legal Philosophy
- Legal philosophy (jurisprudence) studies law's nature, sources, and functions.
- Key questions include: What is law? What makes a law valid? What's the link between law and morality? Who creates and enforces laws?
Major Theoretical Approaches to Law
- Legal Positivism: Law comes from established rules, not morality.
- Natural Law Theory: Law is intrinsically linked to morality; unjust laws aren't true laws.
- Legal Realism: Law is shaped by court decisions, less predictable than rules suggest.
- Critical Legal Theories: Law reflects social, political, and economic structures, often furthering power imbalances.
Legal Positivism
- Law is determined by social facts, not morality.
- John Austin (Command Theory): Law is a sovereign's command backed by sanctions. Valid laws need a command, sanction, and a sovereign.
- H.L.A. Hart (Rule of Recognition): Law consists of primary (behavior) and secondary (lawmaking) rules. A legal system is valid when officials recognize and apply its rules.
Natural Law Theory
- Law is derived from morality and reason.
- Thomas Aquinas: Law must align with moral principles to be legitimate, with four types: eternal law, natural law, human law, and divine law.
- Lon Fuller (Inner Morality): Laws must meet procedural standards (clear, public, consistent, possible to follow) to be valid.
Legal Realism
- Law is shaped by judicial interpretation and social factors.
- Oliver Wendell Holmes Jr.: Law viewed through a "bad man's" perspective (avoiding punishment). Judges shape law more than statutes.
- Jerome Frank: Judge-made law is influenced by personal biases and circumstances, making the rule of law inconsistent.
Critical Legal Theories
- Law is a tool for power, social control, and inequality.
- Critical Legal Studies (CLS): Law isn't neutral, but serves political and economic interests, masking oppression.
- Feminist Legal Theory: Law marginalizes women; focus on gender equity.
- Critical Race Theory (CRT): Law reflects racial biases, upholding systemic racism.
Law and Morality Debate
- Key question: Must laws be moral to be valid?
- Legal Positivists: Law and morality are separate; unjust laws are still laws.
- Natural Law Theorists: Law needs to be moral to be valid.
Rule of Law & Judicial Discretion
- Rule of law: Laws apply fairly and predictably to all.
- Challenges include judicial discretion undermining predictability, and political/economic forces influencing lawmaking.
Key Terms
- Legal Positivism: Law based on rules/social facts, not morality
- Natural Law Theory: Laws must align with moral principles
- Rule of Recognition: Hart's concept of legal system validity
- Sovereignty: Ultimate authority (Austin)
- Sanctions: Punishments for breaking laws
- Judicial Discretion: Judge's flexibility in law interpretation
- Judge-Made Law: Law created by judges through rulings
- Critical Legal Studies: Law reinforces power structures
- Rule of Law: Laws are clear, fair and universally applied
Sample Exam Questions
- Multiple Choice: According to Austin why is Raymond's rule not law?
- Short Answer: What is "judge-made law", and how does it challenge the rule of law? (Judges make law through rulings, less predictable).
Summary of Key Terms
- Command Theory: Austin's idea (law as command of sovereign).
- Rule of Recognition: Hart's idea (valid laws must follow an established system).
- Inner Morality of Law: Fuller's idea (laws need procedural fairness).
- Judicial Discretion: Extent of judges' ability to interpret laws.
- Critical Legal Studies: View that law maintains power structures.
- Rule of Law: Laws are clearly, fairly, and equally applied.
Additional - Detailed Explanation of The Nature of Law
- Descriptive Definitions: Explain how law functions in society (e.g., social control).
- Normative Definitions: Define law based on its purpose (e.g., promoting justice).
Additional - The Nature of Law - Theories
- Legal Positivism: Focuses on how laws are made/enforced, not morality.
- Natural Law: Focuses on morality and whether laws are just.
- Legal Realism: Focuses on practicality and how laws are applied by judges.
- Critical Legal Theory: Focuses on how law reflects and maintains inequalities.
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