Legal Positivism: Austin's Aspects

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What does legal positivism exclude from the category of positive law proper?

Constitutional and international law

According to legal positivism, what is sovereignty considered as?

Pre-legal; creator not creature of law

What is the judge considered as in the context of legal positivism?

Delegate of the sovereign

What is the basis for legal validity according to legal positivism?

Social convention Signup and view all the answers

According to HLA Hart, what are the two minimum conditions necessary and sufficient for the existence of a legal system?

Rules and sanctions Signup and view all the answers

What does HLA Hart reject in Austin's theory of legal positivism?

Austin's command/imperative theory of law Signup and view all the answers

According to HLA Hart, what is the basis of his theory of legal positivism?

Differentiation from Austin's theory Signup and view all the answers

What is the basis of legal validity according to HLA Hart's theory of legal positivism?

Social conventions and rules Signup and view all the answers

What is the notion introduced by Hart to address cases where no valid legal rules exist?

Penumbra Signup and view all the answers

How does Hart's theory differ from strict legal positivism?

It allows for judicial discretion in penumbral cases. Signup and view all the answers

In what cases does Hart's theory of soft positivism come into play?

When no valid legal rules exist. Signup and view all the answers

What concept in Hart's theory suggests that judges have some discretion in legal interpretation?

Penumbral cases Signup and view all the answers

How can Hart's theory be classified based on the distinction between law and morality?

Soft positivism Signup and view all the answers

What does Hart leave open for judges in penumbral cases?

Space for discretion in legal interpretation Signup and view all the answers

What is the main characteristic of Hart's soft positivism?

Judicial discretion in legal interpretation Signup and view all the answers

Explain the role of moral values in Hart's theory of soft positivism.

They are considered when legal rules are inadequate. Signup and view all the answers

What are the two types of social rules mentioned in the text?

Social conventions and Primary rules Signup and view all the answers

What is the purpose of Primary rules in society?

To govern conduct and maintain social life and order. Signup and view all the answers

Why are Secondary rules needed in addition to Primary rules?

To ascertain or determine what the Primary rules are and to complement them. Signup and view all the answers

What do Rules of recognition focus on?

Identifying valid and binding law. Signup and view all the answers

What is the role of Rules of change?

To determine the procedure for amending or repealing laws. Signup and view all the answers

What do Rules of Adjudication deal with?

Resolving legal disputes. Signup and view all the answers

Why do Primary rules need Secondary rules according to the text?

To establish an effective working legal system. Signup and view all the answers

What is crucial for the acceptance of law in a society according to the text?

Collective acceptance by officials. Signup and view all the answers

What are the conditions for a norm to be considered valid and effective?

It must be obeyed and if disobeyed, a sanction is prescribed. Signup and view all the answers

According to Kelsen, what is the Grundnorm?

The Grundnorm is the basic norm at the apex of the hierarchy of legal norms. Signup and view all the answers

How does Kelsen view law?

Kelsen views law as a system of norms. Signup and view all the answers

What is the main focus of Hans Kelsen's pure theory of law?

Describing positive law without reference to morality, politics, and sociology. Signup and view all the answers

What is the role of the Grundnorm in the legal order?

The Grundnorm validates and authorizes the creation of all legal rules. Signup and view all the answers

Explain the concept of the Grundnorm in relation to legal norms validation.

The Grundnorm is the last norm in the chain of norm validation, tracing back to a historical starting point. Signup and view all the answers

Explain the concept of 'purity' in Kelsen's theory of law.

The idea that law can be described without reference to morality, politics, and sociology. Signup and view all the answers

Why does the Grundnorm presuppose the validity of the constitution?

The Grundnorm presupposes the validity of the constitution because it authorizes the creation of legal rules. Signup and view all the answers

Why does Kelsen refer to his theory as 'pure'?

Because it focuses only on law and excludes moral, political, and social dimensions. Signup and view all the answers

What is the significance of the Grundnorm in the hierarchy of legal norms?

The Grundnorm is at the apex of the hierarchy of legal norms. Signup and view all the answers

What aspect of law does Kelsen believe is relevant to determining what law is?

Only the legal aspect of law. Signup and view all the answers

According to Kelsen, how should legal norms be viewed?

As a direction to officials on how to act in specific situations. Signup and view all the answers

How does the Grundnorm differ from other legal norms?

The Grundnorm is the ultimate source of authorization for all legal rules. Signup and view all the answers

Who are the main recipients of legal norms according to Kelsen?

Officials like judges, police, and jailers. Signup and view all the answers

What does Kelsen believe the purpose of legal norms is?

To guide officials on what actions to take in response to specific events. Signup and view all the answers

How does Kelsen's focus differ from traditional theories of law regarding the duty to obey the law?

He focuses on the conditions permitting the application of sanctions rather than the nature of law as command. Signup and view all the answers