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A law that applies to one person can still be considered a proper law.
A law that applies to one person can still be considered a proper law.
True
Superiority in law is defined as the ability to inflict joy on others.
Superiority in law is defined as the ability to inflict joy on others.
False
A sovereign commands general obedience across society.
A sovereign commands general obedience across society.
True
Sovereignty is a less specific notion than general superiority.
Sovereignty is a less specific notion than general superiority.
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A servant is considered superior to a king.
A servant is considered superior to a king.
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The sovereign does not habitually obey anyone else in turn.
The sovereign does not habitually obey anyone else in turn.
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Generality connected to law refers only to acts, not to classes of people.
Generality connected to law refers only to acts, not to classes of people.
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The definition of law involves commands that obligate persons generally to specific acts or behaviors.
The definition of law involves commands that obligate persons generally to specific acts or behaviors.
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The sanction is imposed by the sovereign to compel obedience from the subject.
The sanction is imposed by the sovereign to compel obedience from the subject.
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Austin's command theory can fully explain power conferring laws.
Austin's command theory can fully explain power conferring laws.
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Legal effect arises only when power is exercised correctly.
Legal effect arises only when power is exercised correctly.
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The intent of the lawmaker is always to use validity to compel obedience.
The intent of the lawmaker is always to use validity to compel obedience.
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Leo's methodology in legal philosophy is considered mature and insightful.
Leo's methodology in legal philosophy is considered mature and insightful.
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There is a distinction between duty imposing rules and power conferring laws.
There is a distinction between duty imposing rules and power conferring laws.
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Collapsing power conferring laws into commands backed by sanctions is deemed helpful.
Collapsing power conferring laws into commands backed by sanctions is deemed helpful.
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Hart argues against interpreting novelties as a sanction in the same way as Austin.
Hart argues against interpreting novelties as a sanction in the same way as Austin.
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Law is defined as a set of commands issued by the highest authority in a political community.
Law is defined as a set of commands issued by the highest authority in a political community.
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Universities in South Africa can ignore the laws of the country when creating their own rules.
Universities in South Africa can ignore the laws of the country when creating their own rules.
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Austin's theory of law only deals with laws from specific times and places.
Austin's theory of law only deals with laws from specific times and places.
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Austin's definition of law can be simplified into a single proposition.
Austin's definition of law can be simplified into a single proposition.
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The duty not to murder is an example of a law that fits well with Austin's theory.
The duty not to murder is an example of a law that fits well with Austin's theory.
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All laws, according to Austin's theory, are specific to individual cases without a general command.
All laws, according to Austin's theory, are specific to individual cases without a general command.
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Austin's theory of law is considered complicated and hard to understand.
Austin's theory of law is considered complicated and hard to understand.
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Austin’s theory of law works particularly well with criminal law.
Austin’s theory of law works particularly well with criminal law.
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It is strictly logically impossible to think of power conferring laws as nullities.
It is strictly logically impossible to think of power conferring laws as nullities.
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Hans Kelsen is associated with 20th century German legal philosophy.
Hans Kelsen is associated with 20th century German legal philosophy.
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A valid contract requires only the consent of one party.
A valid contract requires only the consent of one party.
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Contract law confers powers to change legal rights and duties.
Contract law confers powers to change legal rights and duties.
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According to Kelsen, power conferring laws are the last link in the legal chain.
According to Kelsen, power conferring laws are the last link in the legal chain.
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Once a contract is agreed upon, it requires certain actions from each party.
Once a contract is agreed upon, it requires certain actions from each party.
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Austin provides the most sophisticated response to the problem of power conferring laws.
Austin provides the most sophisticated response to the problem of power conferring laws.
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The general rule for a valid contract is that it must be agreed upon in writing.
The general rule for a valid contract is that it must be agreed upon in writing.
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People are more likely to form a habit of obedience to a ruler if they regard that person as entitled to their position.
People are more likely to form a habit of obedience to a ruler if they regard that person as entitled to their position.
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A coup is always regarded as an appropriate way to take power.
A coup is always regarded as an appropriate way to take power.
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Habits have normative force, meaning they dictate what individuals believe they should do.
Habits have normative force, meaning they dictate what individuals believe they should do.
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Hart emphasizes the importance of understanding the reasons behind the formation of habits of obedience.
Hart emphasizes the importance of understanding the reasons behind the formation of habits of obedience.
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The distinction between habits and social rules includes the concept of an 'internal aspect'.
The distinction between habits and social rules includes the concept of an 'internal aspect'.
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Tying one's left shoelace before the right is considered a habit without normative implications.
Tying one's left shoelace before the right is considered a habit without normative implications.
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If a person occasionally ties their right shoelace before their left, they can be criticized for breaking a norm.
If a person occasionally ties their right shoelace before their left, they can be criticized for breaking a norm.
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People's views on authority do not influence their willingness to follow social rules.
People's views on authority do not influence their willingness to follow social rules.
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Traffic lights only dictate the physical actions of drivers without any internal considerations.
Traffic lights only dictate the physical actions of drivers without any internal considerations.
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According to H, social rules are habits accompanied by an internal state of mind.
According to H, social rules are habits accompanied by an internal state of mind.
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H believes that understanding law requires focusing only on external perspectives.
H believes that understanding law requires focusing only on external perspectives.
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The behavior of drivers in relation to traffic lights can be understood solely by observing their actions.
The behavior of drivers in relation to traffic lights can be understood solely by observing their actions.
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H's analysis of traffic lights reflects his perspective on the nature of law.
H's analysis of traffic lights reflects his perspective on the nature of law.
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Rex 1 and Rex 2 are used to illustrate the different perspectives in understanding rules.
Rex 1 and Rex 2 are used to illustrate the different perspectives in understanding rules.
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H suggests that traffic light rules are merely coincidental occurrences.
H suggests that traffic light rules are merely coincidental occurrences.
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Austin views habits of obedience as a key part of analyzing law.
Austin views habits of obedience as a key part of analyzing law.
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Study Notes
Jurisprudence Study Notes
- Positivism is a 19th-century legal theory, opposing natural law theory. It's often associated with analytical jurisprudence.
- Key figures in positivism include John Austin, H.L.A. Hart, and Joseph Raz.
- Positivism views law as separate from morality, focusing on the law's structure and source, rather than its inherent morality.
- It's important to be cautious when categorizing legal schools, as there's significant diversity within each tradition.
- The concept of law, in its 19th-century form, is now more complex than it once was.
- It is useful to consider competing legal traditions in contrast but remain critical of broad categories as they can obscure diversity and subtle differences of opinion.
- Legal positivism's image is often oversimplified: positivists don't say judges shouldn't use moral reasoning.
- Austin's command theory of law is based on the sovereign issuing commands, backed by threats of sanctions.
- Essential elements include command, sanction, and sovereign.
- This model has been criticized for its limitations in accounting for various types of law, such as customary law, constitutional law, and legal obligations arising from non-sovereign sources.
- Disagreements exist on whether judges should adhere to existing laws or consider moral principles in legal decision-making.
- Some positivistic views recognize the influence of moral considerations in law (the "inclusive" or "soft" variant).
- Hart's theory argues against Austin's perspective by incorporating the idea of secondary rules (rules about rules):
- Primary rules dictate conduct.
- Secondary rules govern the creation, amendment, and interpretation of primary rules.
- The recognition rule is crucial for identifying 'law'—it establishes criteria for determining valid legal rules.
- Positivism is about the rules followed (the social practice) and the decision-making process for applying the rules, not necessarily moral judgments about the rules or the outcome.
- Hart distinguishes between the 'core' and 'penumbra' of rules.
- Judges face a variety of problems in applying laws, particularly in cases involving novel or ambiguous applications of rules.
- Hart acknowledges that judges must sometimes engage in moral reasoning to fill in gaps or resolve conflicts in the law.
- Hart's theory is often praised for its consideration of legal systems' complexities, while admitting it's limitations in some cases.
- The connection between law and morality is often debated in positivist thought, with some accepting that law and morality can overlap.
- Raz examines the role of principles and policies in judicial decision-making, questioning the notion of law as solely composed of rules.
- Positing—the deliberate establishment of rules—distinguished from the general acceptance, or habit, creates a legal system.
- Hart distinguishes between regulated and unregulated cases.
- While there's overlap, legal systems and normative systems aren't the same—legal systems are backed by social practices and norms that give them a unique character.
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Description
Test your understanding of key concepts in legal philosophy, including Austin's command theory and the distinction between duty imposing and power conferring laws. This quiz will explore the nuanced definitions and applications of law and sovereignty. Perfect for students of law or philosophy looking to deepen their knowledge.
