Questions and Answers
What characterizes pre-modern legal systems?
What leads to the development of transitional legal systems?
The transition to an agricultural society
What does modern legal systems emphasize?
Civil and criminal law, specialized agencies, and procedural rules
Natural law is viewed as which of the following?
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Who articulated a comprehensive religious statement of natural law?
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What is John Austin known for?
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What did Thomas Hobbes describe life without government as?
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What do positivists believe regarding existing laws?
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Who was Hans Kelsen?
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Study Notes
Pre-Modern Legal Systems
- Found in hunter-gatherer societies characterized by a shared ethnicity and communal lifestyles.
- Governed by customary law addressing marriage, child-rearing, and disputes like incest and homicide.
- Dispute resolution relies heavily on self-help rather than formal mechanisms.
Transitional Legal Systems
- Emerge during the shift to agriculture as landowners accumulate wealth.
- Development of institutions to address disputes over land, crops, and employment.
- Agricultural advancements lead to transportation, banking, and educational institutions.
Modern Legal Systems
- Extensive civil and criminal law frameworks developed, necessitating specialized regulatory agencies.
- Establishment of local, national, and specialized police forces for law enforcement.
- Development of procedural rules for legal cases, including a structured court system with appeals to ensure fairness.
- Reliance on legal precedents for predictable court outcomes.
Natural Law
- Defined as universal principles applicable to all societies, discernible through reason.
- The ideal society aligns with natural law principles, reflecting divine order.
- Positive laws contradicting natural law are deemed unjust and lack legitimacy.
Thomas Aquinas
- His work "Summa Theologiae" presents a religious framework for natural law, categorizing law into eternal, natural, divine, and human law.
- A human law that aligns with eternal or natural law is regarded as just; those that do not are "no law at all."
- Unjust laws, including those benefiting lawmakers or unjustly burdening individuals, are equated to violence.
John Austin
- British philosopher who championed legal positivism, focusing on law as posited or established.
- His lectures at the University of London outline his belief that law is the command of the sovereign.
- Distinguished between legal rules' morality and their status as laws, advocating that even immoral laws must be obeyed if properly enacted.
Thomas Hobbes
- In "Leviathan," he describes humans in a pre-social state as living in a harsh environment.
- Advocates for a social contract where individuals sacrifice freedom for security under strong governance.
- Defines law purely as commands from the sovereign that citizens must obey.
Positivism
- Positivism clarifies the criteria for law and its identification.
- Positivists maintain existing laws should be followed until they undergo change, regardless of moral considerations.
Hans Kelsen
- Austrian legal scholar known for his contributions to legal theory.
- His specific principles and arguments further establish the foundations of legal positivism and its implications in jurisprudence.
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Description
Test your knowledge with these flashcards from Chapter 2 of 'Law and Society.' This chapter covers the characteristics of pre-modern legal systems and their communal influences on law and order. Each term is defined to enhance your understanding of the legal context in historical societies.
