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Questions and Answers
What is the primary basis of law according to Schmitt's critique of Kelsen?
What is the primary basis of law according to Schmitt's critique of Kelsen?
What does Schmitt's concept of 'decisionism' highlight about legal reasoning?
What does Schmitt's concept of 'decisionism' highlight about legal reasoning?
How does Schmitt differentiate between normal and emergency situations in legal application?
How does Schmitt differentiate between normal and emergency situations in legal application?
What does Schmitt mean when he states 'Inter arma silent leges'?
What does Schmitt mean when he states 'Inter arma silent leges'?
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What aspect of Kelsen's legal theory does Schmitt find most problematic?
What aspect of Kelsen's legal theory does Schmitt find most problematic?
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In Schmitt's view, what role does the sovereign play in legal matters?
In Schmitt's view, what role does the sovereign play in legal matters?
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What does Schmitt argue about the nature of legal norms?
What does Schmitt argue about the nature of legal norms?
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What is the significance of the idea that law is conditional according to Schmitt?
What is the significance of the idea that law is conditional according to Schmitt?
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What is the core paradox of constituent power?
What is the core paradox of constituent power?
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How does Hans Kelsen view the concept of a basic norm?
How does Hans Kelsen view the concept of a basic norm?
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What defining characteristic does Carl Schmitt attribute to the concept of 'the people'?
What defining characteristic does Carl Schmitt attribute to the concept of 'the people'?
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What challenge arises in identifying 'the will of the people'?
What challenge arises in identifying 'the will of the people'?
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What does the double role of democracy imply in relation to constituent power?
What does the double role of democracy imply in relation to constituent power?
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Which of the following best describes the nature of constituent power according to the discussed concepts?
Which of the following best describes the nature of constituent power according to the discussed concepts?
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Which aspect of democracy does the paradox of constituent power highlight?
Which aspect of democracy does the paradox of constituent power highlight?
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What is Kelsen's critique of Schmitt's view on constituent power?
What is Kelsen's critique of Schmitt's view on constituent power?
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What did Schmitt argue about the nature of law in relation to politics?
What did Schmitt argue about the nature of law in relation to politics?
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What is a key element of Schmitt's critique of Kelsen's Pure Theory of Law?
What is a key element of Schmitt's critique of Kelsen's Pure Theory of Law?
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How does Schmitt's concept of sovereignty relate to legal exceptions?
How does Schmitt's concept of sovereignty relate to legal exceptions?
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What does Radbruch's Formula state about unjust laws?
What does Radbruch's Formula state about unjust laws?
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In Schmitt's view, during a state of emergency, what happens to legal norms?
In Schmitt's view, during a state of emergency, what happens to legal norms?
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What fundamental shift did Radbruch experience in his legal philosophy?
What fundamental shift did Radbruch experience in his legal philosophy?
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How does Kelsen's view of law differ fundamentally from that of Schmitt?
How does Kelsen's view of law differ fundamentally from that of Schmitt?
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What role does the sovereign play in Schmitt's decisionist perspective?
What role does the sovereign play in Schmitt's decisionist perspective?
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Study Notes
Legal Positivism
- Legal positivism argues that the existence and content of law depends on social facts, not moral correctness.
- Positive laws are those enacted by a legal authority.
- Proponents like Hans Kelsen view law as an autonomous system of interconnected norms.
- Legal norms derive their validity from other, higher level norms, forming a chain.
- Law is a human construct, not divinely ordained or discovered through reason.
- Law and morality are separate; law is about legal rules, not moral or political judgments.
- Legal positivists focus on legal validity, which is determined by formal criteria, not moral rightness.
Kelsen's View on Legal Positivism
- Kelsen aimed for a "pure" theory of law, free from moral or political influences.
- He rejected natural law theory (law must align with morality).
- He rejected command theory (law is the will of a political sovereign).
- Law is understood as an independent system with internal norms, not external morality.
- Legal norms act as schemes for interpreting facts as legally relevant.
- Subjective and objective meanings of actions.
Formalist Legal Reasoning
- Formalism emphasizes a structured, logical, and consistent approach to applying law.
- Formalism involves three steps: discovering applicable rules, describing relevant facts, and applying rules to facts.
- A hierarchical decision-making process within legal systems.
- Concrete norms must adhere to higher-level, abstract norms (statutes, procedural rules, constitution).
Schmitt's Critique of Kelsen
- Schmitt believed legal rules are not applied mechanically; they are influenced by political context.
- Legal norms cannot function independently of political decisions.
- Law relies on the sovereign's decision-making, especially, during emergency situations.
- The sovereign has the power to decide when and how the law can function.
American Legal Realism
- Legal realism challenges the formalist view of law as a self-contained, rational, and objective system.
- Law is not only a set of rules but also a practical, socially situated process.
- Legal outcomes depend on judges' discretion, legal actors' behavior, and social context.
- Fact-skepticism criticizes the objectivity of legal proceedings and acknowledges the influence of bias.
- Rule-skepticism questions the determinacy of legal rules, highlighting their inherent ambiguity.
- Focus on law in action, not only law on the books.
Critical Legal Studies (CLS)
- CLS critiques law's role in maintaining social hierarchies and the domination of privileged groups through legal frameworks.
- CLS views law as indeterminate, full of internal contradictions, and used to perpetuate existing inequalities.
- Critique of liberal legalism: emphasizes that law is imbued with particular ideologies.
- Focus on transformation, radical critique, power dynamics.
Critical Race Theory (CRT)
- CRT builds on the insights of CLS but emphasizes the central role of race and racism.
- It critiques CLS's overlooking of how racial issues shape legal and social systems.
- CRT critiques liberal legal reforms, which don't go deep enough.
- CRT emphasizes race as a central concept, not simply a derivative of class.
- It highlights the role of storytelling, counter-narratives, and intersectionality (the interconnectedness of race, gender, class, etc.).
Rule of Law
- Formal theories focus on the form and source of law (proper authority, clear, general laws").
- Substantive theories add requirements concerning the law's content, aligning it with human rights and justice.
- Formal theories emphasize process, not substance, while substantive ones address the fairness and morality of the law's content.
Constituent Power
- Constituent power is the people's ability to create and establish a legal system.
- It's the capacity of the people to create a new legal order (not bound by present law).
- Constituent power is separate from existing legal norms.
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Description
This quiz explores the key concepts of legal positivism, emphasizing the view that law is based on social facts rather than moral principles. It highlights the contributions of Hans Kelsen and the notion of law as an autonomous system. Test your understanding of the distinctions between law and morality, and the foundational norms of legal positivism.
