Legal Positivism Quiz
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Questions and Answers

What is the basis of legal positivism?

  • The sovereign's will. (correct)
  • The fundamental ethical principles.
  • The subjective interpretation of morality.
  • The inherent rights of individuals.

Which of the following is an assumption made by legal positivism?

  • The source of law is essential. (correct)
  • Law must reflect moral values.
  • Rights are limiting to freedom.
  • Natural law is superior to statutory law.

How does natural law differ from legal positivism regarding moral judgment?

  • Natural law does not require justice in its content.
  • Legal judgments can establish rules of law. (correct)
  • Natural law operates within a closed logical system.
  • Moral judgments can establish rules of law.

What characterizes law in a descriptive sense?

<p>Law fails to grasp facts and may be incorrect. (C)</p> Signup and view all the answers

What concept is Kelsen known for in relation to legal systems?

<p>Grundnorm. (C)</p> Signup and view all the answers

According to Kelsen's theory, what defines defective law?

<p>Law that does not effectively regulate political and social life. (A)</p> Signup and view all the answers

What is suggested about the relationship between law and morality?

<p>They are distinct from one another. (A)</p> Signup and view all the answers

What is the primary consideration in political politics according to Karl Schmitt?

<p>The prioritization of community choices. (B)</p> Signup and view all the answers

How do regulative rules function in relation to actions?

<p>They regulate actions that already exist. (C)</p> Signup and view all the answers

What is the relationship between constitutive rules and behaviors?

<p>Constitutive rules are necessary for the existence of certain behaviors. (B)</p> Signup and view all the answers

What is Hobbes' view on life in a state of nature?

<p>It leads to chaos and requires a sovereign. (D)</p> Signup and view all the answers

What does sovereignty imply according to the content provided?

<p>It holds ultimate power and is unrestricted. (D)</p> Signup and view all the answers

What does tacit consent imply about laws and their acceptance?

<p>If no one objects to a law, it signifies universal acceptance. (D)</p> Signup and view all the answers

What is H.L.A. Hart's main criticism of Austin’s theory?

<p>It ignores the importance of social norms and legitimacy. (D)</p> Signup and view all the answers

According to Hobbes, what are justice and injustice derived from?

<p>Law, which is seen as a command with sanctions. (B)</p> Signup and view all the answers

What is the primary function of the Rules of Change in a legal system?

<p>To allow changes in status such as contracts and marriages (B)</p> Signup and view all the answers

What does the Rule of Recognition determine in a legal system?

<p>What constitutes a legally binding norm (A)</p> Signup and view all the answers

According to contemporary natural law, what does the validity of a law depend on?

<p>Moral principles and values (A)</p> Signup and view all the answers

What key aspect of law does the author emphasize when discussing changes in the law?

<p>The relationship between laws and political changes (C)</p> Signup and view all the answers

What is a major critique of sovereignty in Locke's natural law paradigm?

<p>It places too much power in a centralized authority (D)</p> Signup and view all the answers

Which principle states that inequalities are acceptable only if they benefit the least advantaged?

<p>The difference principle (A)</p> Signup and view all the answers

How does Schmitt define an Absolute Constitution?

<p>A form of forms transcending legal norms (D)</p> Signup and view all the answers

What concept identifies the constitution as merely a collection of provisions and articles?

<p>Relative Constitution (C)</p> Signup and view all the answers

What does Dworkin's 'living constitutionalist' approach emphasize?

<p>The distinction between principles and rules in law (C)</p> Signup and view all the answers

What is the essence of the Ideal Constitution according to Schmitt?

<p>A militant constitution that opposes historical regimes (A)</p> Signup and view all the answers

Which of the following best describes Rawls' view on equal basic rights and liberties?

<p>They serve as the foundation for a just society. (D)</p> Signup and view all the answers

How does Fuller's approach differ from Dworkin's?

<p>It seeks to separate law from religious and divine beliefs (C)</p> Signup and view all the answers

What aspect characterizes Hart's soft positivism?

<p>Incorporating extra-legal norms into legal positivism (B)</p> Signup and view all the answers

Which statement is true regarding hard positivism?

<p>It solely assesses law based on its content without external factors (A)</p> Signup and view all the answers

Which of the following is a key feature of Dworkin's legal theory?

<p>Moral principles are integral to understanding law (D)</p> Signup and view all the answers

What is the principle behind the concept of 'Original Position' in Rawls's theory?

<p>A state where decisions are made without knowledge of personal characteristics. (B)</p> Signup and view all the answers

Which term describes the ideal where everyone has equal rights and opportunities according to Rawls?

<p>Justice as Fairness (A)</p> Signup and view all the answers

What does the 'Veil of Ignorance' aim to achieve in decision-making?

<p>Ignoring personal characteristics to ensure fairness. (B)</p> Signup and view all the answers

What is the focus of Reflective Equilibrium in Rawls's theory?

<p>Balancing personal preferences with moral principles. (D)</p> Signup and view all the answers

Which scenario best illustrates the 'Circumstances of Justice' as defined by Rawls?

<p>A setting with limited resources and differing interests. (B)</p> Signup and view all the answers

What distinguishes a reasonable person from a rational person?

<p>Rational people pursue their own good, while reasonable people recognize others' claims to justice. (D)</p> Signup and view all the answers

What is the main goal of a well-ordered society?

<p>For everyone to accept the same principles of justice as institutions. (D)</p> Signup and view all the answers

What does the concept of 'overlapping consensus' refer to?

<p>Different beliefs agreeing on basic political principles for stability. (C)</p> Signup and view all the answers

What is the liberal principle of legitimacy concerned with?

<p>The acceptability of political power to all reasonable people. (A)</p> Signup and view all the answers

What describes a 'modus vivendi'?

<p>A practical agreement to maintain peace despite differing principles. (D)</p> Signup and view all the answers

What is the primary function of a constitution according to Rawls' principles?

<p>To serve as the framework for creating laws reflecting equality. (D)</p> Signup and view all the answers

What distinguishes constituent power from ordinary power in Rawls' framework?

<p>Constituent power is the expression of the people's will after a regime is resolved. (C)</p> Signup and view all the answers

Which of the following statements best describes a democratic constitution?

<p>A constitution that reflects the self-governance of the people. (B)</p> Signup and view all the answers

In Rawls' model, how is constitutional power distributed?

<p>It is divided among various branches, ensuring no single branch has ultimate power. (D)</p> Signup and view all the answers

What is required for a constitutional democracy to be considered just according to Rawls?

<p>It must be characterized by a stable and fair governance system. (A)</p> Signup and view all the answers

What is the main objective of the political concept of justice?

<p>To ensure a fair society with equitable institutions (B)</p> Signup and view all the answers

What is required for a constitution to be considered legitimate according to Rawl?

<p>Its core principles must reflect fairness and justice (C)</p> Signup and view all the answers

Which aspect is NOT part of the theory of justice discussed in the document?

<p>The historical context of existing laws (A)</p> Signup and view all the answers

What does Rawl suggest is crucial for sustaining a fair legal framework?

<p>Solid philosophical reasoning (D)</p> Signup and view all the answers

How should a society perceive its laws according to the political concept of justice?

<p>As a system reflecting diverse opinions within a fair structure (C)</p> Signup and view all the answers

Flashcards

Descriptive sense of law

Law as it exists in reality. This view focuses on how law is currently applied and enforced.

Normative sense of law

Law as it should be, focusing on ideals and aspirations. This perspective seeks to improve law and align it with societal values.

Legal Positivism

A theory that law is created by a sovereign's will and independent of morality.

Kelsen's efficiency of law

The idea that law should effectively regulate political and social life. Ineffective law is considered defective.

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Grundnorm

Kelsen's foundational norm, a starting point for the entire legal system.

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Regulative rules

Rules that govern existing actions. They limit freedom by setting boundaries and imposing restrictions.

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Natural Law

A theory that true law is based on inherent, objective moral principles.

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Constitutive rules

Rules that create or define new actions. They don't merely limit freedom but define new possibilities.

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Separation of Law and Morality

The belief that legal judgments are distinct from moral judgments.

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Content of Law

In natural law, the substance and content of law are essential for its legitimacy.

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Hobbes' Contract Theory

Individuals agree to form a society and choose a sovereign to ensure protection. Without this pact, life would be chaotic and full of fear.

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Sovereignty

The absolute, unrestricted power that's not bound by any laws.

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Tacit Consent

If no one objects to a law, everyone is considered to have accepted it.

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John Austin's Legal Theory

People obey laws because they fear punishment from the sovereign.

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H.L.A. Hart's Criticism of Austin

Austin's theory is too simple for new legal orders. People obey rules because they believe in their legitimacy.

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Rules of Change

Rules that allow changes in legal status, such as contracts, wills, or marriage.

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Rules of Adjudication

Rules that establish how conflicts are resolved, outlining the procedures and powers of courts.

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Rules of Recognition

Rules that define what constitutes a valid law within a legal system, determining which norms are legally binding. They are accepted without question within the system.

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Natural Law (Locke)

A classical natural law theory where sovereignty is misused in a commonwealth, leading to a decline in order. It emphasizes the absence of a judicial system and the individual sovereignty of individuals.

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Contemporary Natural Law (Dworkin)

A modern perspective on natural law which states that the validity of a law depends on its alignment with fundamental moral principles and values.

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Fact of Pluralism

The idea that a just society will have diverse and conflicting viewpoints on morality and values.

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Veil of Ignorance

A thought experiment where people make decisions about justice without knowing their own social position, wealth, or abilities.

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Original Position

A hypothetical situation where individuals decide on the principles of justice behind a veil of ignorance.

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Reflective Equilibrium

The process of continually refining our principles of justice by considering real-world examples and adjusting beliefs.

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Circumstances of Justice

Conditions that make the concept of justice relevant, like limited resources or conflicting interests.

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Dworkin's Legal Theory

Dworkin believes law is intertwined with moral principles, arguing for a 'living constitutionalist' approach where principles and rules are distinct. He emphasizes that morality changes over time.

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Fuller's Legal Theory

Fuller emphasizes separating law from religious beliefs. He advocates for a natural law approach rooted in morality, distinct from divine laws.

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Hard Positivism

Law is solely defined by written legal rules, regardless of morality. Its merit is based only on its content.

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Soft Positivism

Law includes both written rules and extra-legal norms, allowing for morality's influence. This view expands on hard positivism.

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Legal Theories Comparison

Dworkin sees law as intertwined with morality, Fuller emphasizes a natural law approach distinct from religion, while hard and soft positivism differ in how they incorporate morality into law.

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Reasonable Pluralism

The idea that different reasonable beliefs can coexist peacefully in a society. People can have different perspectives on moral and political issues, but still agree on basic principles of justice and fairness.

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Liberal Concept of Justice

A shared framework emphasizing public values like fairness and equality. It's neutral and not tied to specific religions or philosophies, aiming to create a just society for everyone.

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Public Reason

Political arguments and discussions based on principles that everyone can understand, not personal beliefs or religious views. Everyone can participate in decision-making.

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Burdens of Judgment

Factors that make it difficult for reasonable people to reach the same conclusions about moral and political issues. These factors include different experiences, values, and interpretations.

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Overlapping Consensus

Agreement on basic political principles by citizens with different beliefs. This shared understanding provides stability even in a diverse society.

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Political Concept of Justice

A theory that focuses on creating a fair society by analyzing its core political, economic, and social structures. It aims for a well-ordered society where the laws are just and the society is fair.

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Rawl's Legitimate Constitution

A constitution is considered legitimate when its core principles reflect fairness and justice that everyone can agree on, regardless of their differences. It must stand on its own and have strong philosophical reasoning behind it.

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What makes Law, Law?

The question explores the fundamental nature of law and how it derives its authority and legitimacy. It asks what makes a rule or regulation a binding law and not just a mere suggestion.

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Broad Agreement in Law

The idea that laws should be widely accepted and supported by people from diverse moral and cultural backgrounds. It shouldn't just be a compromise between political parties.

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Living, Existent Historical Vocabularies

This refers to the idea that laws shouldn't be based on outdated or culturally specific traditions. Instead, they should be grounded in reason and universal principles.

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Rawls' Constitutional Democracy

A political system based on a just and stable constitution that ensures equality and protects individual rights. This model focuses on distributing power among branches of government, preventing any single branch from dominating.

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Constituent Power

The power of the people to create or change the fundamental framework of their government, usually through a constitution. This power is exercised only when a new government is created or the existing one is significantly re-structured.

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Ordinary Power

The power exercised by elected officials, legislative bodies (like Congress), and other government institutions within the existing framework of the constitution.

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Democratic Constitution

A constitution that represents the will of the people and ensures citizen participation in decision-making. It usually includes a bill of rights that safeguards fundamental freedoms.

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Separation of Powers (Rawls)

In Rawls' model, government power is divided between three branches: executive, legislative and judicial. This arrangement aims to prevent any one branch from becoming too powerful by requiring them to cooperate and check each other's actions.

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Rawls' Two Principles of Justice

Rawls proposes two principles for a just society: 1) Equal basic rights and liberties for all, and 2) The difference principle, which allows for inequalities only if they benefit the least advantaged.

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Absolute Constitution (Schmitt)

Schmitt sees the constitution as more than just legal rules. It's a fundamental framework that shapes all other laws and social structures.

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Relative Constitution (Schmitt)

This view sees the constitution as a collection of written provisions and articles, similar to a legal document.

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Positive Constitution (Schmitt)

Schmitt argues that the actual implementation of the constitution is a political decision made by the sovereign. This means there needs to be someone with the authority to decide what the law of laws is.

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Ideal Constitution (Schmitt)

Schmitt's ideal constitution is a set of principles that challenges existing political systems. It's meant to be a militant constitution that fights for change.

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