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Questions and Answers
Holmes is considered a heroic figure in law for English people because he combined creativity and lack of clarity.
Holmes is considered a heroic figure in law for English people because he combined creativity and lack of clarity.
False
The great Utilitarians, such as Bentham and Austin, believed in a clear distinction between law as it is and law as it should be.
The great Utilitarians, such as Bentham and Austin, believed in a clear distinction between law as it is and law as it should be.
True
Austin's idea suggests that the existence of a law is synonymous with its goodness.
Austin's idea suggests that the existence of a law is synonymous with its goodness.
False
The separation between law and morals is generally accepted in England.
The separation between law and morals is generally accepted in England.
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Holmes believed that legal issues are often talked about in a way that is too confusing.
Holmes believed that legal issues are often talked about in a way that is too confusing.
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Bentham’s works do not have connections to the principles of the Rechtsstaat.
Bentham’s works do not have connections to the principles of the Rechtsstaat.
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Sir William Blackstone believed that human laws should never contradict divine laws.
Sir William Blackstone believed that human laws should never contradict divine laws.
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Austin claimed it is acceptable to blur the line between what the law is and what it should be.
Austin claimed it is acceptable to blur the line between what the law is and what it should be.
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Judges are required to legislate when legal rules are incomplete.
Judges are required to legislate when legal rules are incomplete.
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The term 'judicial legislation' accurately captures the nature of judicial decision-making.
The term 'judicial legislation' accurately captures the nature of judicial decision-making.
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Smart decisions are always aligned with moral grounds.
Smart decisions are always aligned with moral grounds.
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Penumbral questions are legal issues that have clear and straightforward answers.
Penumbral questions are legal issues that have clear and straightforward answers.
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Judges have the freedom to weigh various claims in criminal cases.
Judges have the freedom to weigh various claims in criminal cases.
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A decision made by a machine is often viewed as preferable compared to one made by a smart person.
A decision made by a machine is often viewed as preferable compared to one made by a smart person.
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The argument for a clear distinction between law and morals is weakened by utilitarian claims.
The argument for a clear distinction between law and morals is weakened by utilitarian claims.
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Radbruch's appeal against positivism was influenced by his experiences during the Nazi regime.
Radbruch's appeal against positivism was influenced by his experiences during the Nazi regime.
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Separating law from morality allows for those in power to perpetuate injustice without resistance.
Separating law from morality allows for those in power to perpetuate injustice without resistance.
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Legal rules are always complete and directive in all cases.
Legal rules are always complete and directive in all cases.
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The notion of moral judgement is irrelevant to the process of criminal sentencing.
The notion of moral judgement is irrelevant to the process of criminal sentencing.
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Blurred lines between what the law is and what it should be are beneficial for legal clarity.
Blurred lines between what the law is and what it should be are beneficial for legal clarity.
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All legal questions are fundamentally the same, regardless of context.
All legal questions are fundamentally the same, regardless of context.
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The German legal profession opposed the actions taken during the Nazi regime.
The German legal profession opposed the actions taken during the Nazi regime.
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A deliberate decision to treat a new case the same as past cases is the same as a recognition that includes the new case under the rule.
A deliberate decision to treat a new case the same as past cases is the same as a recognition that includes the new case under the rule.
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Bentham believed that law and morals should be kept separate.
Bentham believed that law and morals should be kept separate.
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Some lawyers and judges may appreciate romantic language over utilitarian terminology in legal discussions.
Some lawyers and judges may appreciate romantic language over utilitarian terminology in legal discussions.
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Austin asserted that constitutional provisions can limit legislative power.
Austin asserted that constitutional provisions can limit legislative power.
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Professor Fuller’s example from Wittgenstein illustrates a clear and specific understanding of what a 'game' is.
Professor Fuller’s example from Wittgenstein illustrates a clear and specific understanding of what a 'game' is.
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Utilitarianism focuses solely on moral principles without regard to outcomes.
Utilitarianism focuses solely on moral principles without regard to outcomes.
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Understanding people's intentions requires a consideration of common goals.
Understanding people's intentions requires a consideration of common goals.
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Critics of the separation between law and morals believed that if one doctrine was wrong, the others must also be wrong.
Critics of the separation between law and morals believed that if one doctrine was wrong, the others must also be wrong.
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Judges always know the specific cases that fit under vaguely stated instructions.
Judges always know the specific cases that fit under vaguely stated instructions.
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Bentham's notable advice for living under the rule of law was to obey and criticize freely.
Bentham's notable advice for living under the rule of law was to obey and criticize freely.
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The concept of 'is' and 'ought to be' can function without involving moral considerations.
The concept of 'is' and 'ought to be' can function without involving moral considerations.
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According to Bentham, laws are invalid if they contradict divine commands.
According to Bentham, laws are invalid if they contradict divine commands.
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There are typically multiple equally good options in interpreting the law.
There are typically multiple equally good options in interpreting the law.
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Judicial legislation is always considered an arbitrary act.
Judicial legislation is always considered an arbitrary act.
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The command theory of law posits that law is simply a set of rules.
The command theory of law posits that law is simply a set of rules.
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Both Bentham and Austin denied the existence of any moral principles within the legal system.
Both Bentham and Austin denied the existence of any moral principles within the legal system.
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The law allows individuals to limit their choices rather than dictate their choices.
The law allows individuals to limit their choices rather than dictate their choices.
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Legal situations rarely exemplify a single correct way to interpret a case.
Legal situations rarely exemplify a single correct way to interpret a case.
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Amos believed that Austin separated the law from morality effectively.
Amos believed that Austin separated the law from morality effectively.
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The Utilitarians asserted that laws with unclear meanings should be seen as definitive rules of law.
The Utilitarians asserted that laws with unclear meanings should be seen as definitive rules of law.
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The Utilitarian belief includes a separation of what law is from what it should be.
The Utilitarian belief includes a separation of what law is from what it should be.
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Legal provisions can bring moral principles into the legal system.
Legal provisions can bring moral principles into the legal system.
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Blackstone accurately articulated the relationship between law and God’s commands, according to Bentham.
Blackstone accurately articulated the relationship between law and God’s commands, according to Bentham.
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Utilitarianism is a form of deontological ethics.
Utilitarianism is a form of deontological ethics.
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The common law jurisprudence was shaped significantly by the ideas of Austin.
The common law jurisprudence was shaped significantly by the ideas of Austin.
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The command theory emphasizes a simple relationship between the commander and the commanded.
The command theory emphasizes a simple relationship between the commander and the commanded.
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Criminal law is intended to give people rights and powers.
Criminal law is intended to give people rights and powers.
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Salmond concluded that legal systems must be connected with moral rules.
Salmond concluded that legal systems must be connected with moral rules.
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The command theory adequately addresses the complexity of law.
The command theory adequately addresses the complexity of law.
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Rules that grant rights must always align with concepts of justice.
Rules that grant rights must always align with concepts of justice.
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The judicial process is primarily based on deductive reasoning.
The judicial process is primarily based on deductive reasoning.
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The Utilitarians strongly favored the separation of law as it is and law as it should be.
The Utilitarians strongly favored the separation of law as it is and law as it should be.
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Formalism is associated with a strict adherence to logic in the judicial process.
Formalism is associated with a strict adherence to logic in the judicial process.
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Judicial decisions must always reflect automatic interpretations of the law.
Judicial decisions must always reflect automatic interpretations of the law.
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There is no intersection between law and morals according to some critics of the command theory.
There is no intersection between law and morals according to some critics of the command theory.
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A legal system must always meet moral standards to be considered a legal system.
A legal system must always meet moral standards to be considered a legal system.
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The notion of a legal system excludes moral reasoning.
The notion of a legal system excludes moral reasoning.
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Justice means treating similar cases in similar ways.
Justice means treating similar cases in similar ways.
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Automatic decisions undermined the legitimacy of legal systems according to critics.
Automatic decisions undermined the legitimacy of legal systems according to critics.
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Natural-law theory asserts that humans all agree on survival as the highest goal.
Natural-law theory asserts that humans all agree on survival as the highest goal.
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Continental critics acknowledged the subjectivity of legal rights in the command theory.
Continental critics acknowledged the subjectivity of legal rights in the command theory.
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Rules forbidding violence are considered arbitrary in a world where people cannot hurt each other.
Rules forbidding violence are considered arbitrary in a world where people cannot hurt each other.
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Judges should ignore the problems of the penumbra when making decisions.
Judges should ignore the problems of the penumbra when making decisions.
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Legal systems can apply equally to all individuals while being fundamentally unfair.
Legal systems can apply equally to all individuals while being fundamentally unfair.
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Utilitarianism's approach to law has been universally accepted without critique.
Utilitarianism's approach to law has been universally accepted without critique.
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Humanitarian morality is a part of the concept of Recht or Legality.
Humanitarian morality is a part of the concept of Recht or Legality.
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All legal systems agree on important moral principles like the prohibition of killing.
All legal systems agree on important moral principles like the prohibition of killing.
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The distinction between 'is' and 'ought' is accepted by all moral theories.
The distinction between 'is' and 'ought' is accepted by all moral theories.
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The view that law can be law without conforming to moral requirements is deemed sensible.
The view that law can be law without conforming to moral requirements is deemed sensible.
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Radbruch's conception of law does not consider moral principles.
Radbruch's conception of law does not consider moral principles.
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Statements about facts and values are seen as belonging to different categories in legal positivism.
Statements about facts and values are seen as belonging to different categories in legal positivism.
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Laws can be unjust but are still classified as laws.
Laws can be unjust but are still classified as laws.
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A wife reported her husband for making insulting remarks about Hitler.
A wife reported her husband for making insulting remarks about Hitler.
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Moral judgments cannot be argued for in rational terms, according to some theories.
Moral judgments cannot be argued for in rational terms, according to some theories.
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Under Nazi laws, the wife's legal duty was to report her husband for his remarks.
Under Nazi laws, the wife's legal duty was to report her husband for his remarks.
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The court held that the statute violated the principles of justice and conscience.
The court held that the statute violated the principles of justice and conscience.
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Legal systems derive their legitimacy solely from their compliance with morality.
Legal systems derive their legitimacy solely from their compliance with morality.
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Natural procedural justice is based on fairness and objectivity in legal applications.
Natural procedural justice is based on fairness and objectivity in legal applications.
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It is considered wise to declare a statute established since 1934 as having no legal force.
It is considered wise to declare a statute established since 1934 as having no legal force.
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There are rules that are moral but do not qualify as laws.
There are rules that are moral but do not qualify as laws.
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A moral quandary should be hidden away to avoid complications.
A moral quandary should be hidden away to avoid complications.
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A legal system without basic protections would still be effective.
A legal system without basic protections would still be effective.
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All values can fit into a single moral system without compromise.
All values can fit into a single moral system without compromise.
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Punishing the woman can be justified under a new retrospective law.
Punishing the woman can be justified under a new retrospective law.
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Radbruch asserts that certain immoral rules cannot be considered as law.
Radbruch asserts that certain immoral rules cannot be considered as law.
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Utilitarian thinkers believed that laws could be law but too evil to obey.
Utilitarian thinkers believed that laws could be law but too evil to obey.
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The relationship between individual laws and the overall legal system is insignificant.
The relationship between individual laws and the overall legal system is insignificant.
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The Utilitarians' distinction between law and moral principles holds no moral value.
The Utilitarians' distinction between law and moral principles holds no moral value.
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Study Notes
Holmes's Heroism in Law
- Holmes, despite American perception, remains a legal hero in England.
- He uniquely combines creativity (often lacking in English legal thought) with clarity (usually present).
- English lawyers recognize Holmes's insight that established legal principles are dynamic.
- Clarity, even when incorrect, is a hallmark of legal virtue, akin to Austin's work.
Part I: Utilitarian Thinkers and the Law
- Utilitarians (Bentham, Austin) were significant legal thinkers in late 18th/early 19th century England.
- They emphasized distinguishing "law as it is" from "law as it should be".
- This separation is viewed as problematic in some countries, including England, where a stronger connection is assumed.
- Bentham recognized elements of modern natural law principles in his writing.
- Bentham and Austin weren't merely academic: they were acutely aware of real-world issues.
- They separated law and morals to avoid dangers of losing established law and overriding morality.
- Austin argued that a law's existence doesn't equate to its moral goodness.
- Blackstone emphasized divine law as superior to human law.
- Austin criticized confusing law with morals, regardless of moral standards.
Part II: Criticisms of Utilitarian Position
- Utilitarians meant that law doesn't have to align with moral standards.
- Utilitarians recognized explicit legal provisions for moral principles.
- They knew courts could decide based on fairness/best interests.
- Bentham recognized constitutional limitations on legislative power.
- Utilitarians stated that neither a law's moral worth nor undesirability proves its legal status.
Part III: American Legal System Criticisms of Formalism
- American criticism focuses on legal penumbras (areas of uncertainty).
- Legal interpretations aren't always deductive reasoning.
- Judicial reasoning in penumbral areas can be rational, even without being logically conclusive.
- The utilitarian distinction might be misleading for complex legal systems.
- Formalism/literalist approaches are sometimes employed for political/social policies.
- Judicial decision-making requires consideration of social goals.
- "Judicial legislation" can occur through thoughtful interpretation of rules.
Part IV: Nazi Regime and Law-Morality
- Radbruch, a German thinker, challenged the utilitarian distinction after his experiences.
- Radbruch argued that laws infringing basic morality are not truly law.
- Nazi regime highlighted the dangers of blind adherence to positive law.
- Instances where courts defied Nazi laws to uphold morality are discussed.
Part V: Law, Morality, and Legal Systems
- The discussion considers a deeper relationship between law and morality in a broader context.
- Legal systems do often rely on fundamental moral principles.
- Legal systems don't achieve their function without aligning with human moral standards.
- Natural Law theory extends the argument further.
Part VI: Subjectivism, Relativism, and Ethics
- The relationship between law/morality depends on theories of moral judgements.
- Law and moral principles aren't necessarily distinct.
- Moral judgements are rationally arguable, the utilitarian distinction holds value.
- The intersection of (clear) law and (ambiguous) applications of law, along with their implications (whether they're better understood as legislative/judicial extensions or fiat).
- Legal interpretation involves considering existing goals and purposes in uncertain cases.
- The rare examples of seemingly entirely unique cases demonstrate the inherent limits of rules and predictability in law.
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Description
Explore the complexities of legal philosophy through the lenses of key figures like Holmes, Bentham, and Austin. This quiz delves into their differing views on the relationship between law and morality, as well as the role of judges in legislative matters. Perfect for students studying the foundations of legal theory.
