Legal Theory and Nazi Statutes
104 Questions
2 Views

Choose a study mode

Play Quiz
Study Flashcards
Spaced Repetition
Chat to Lesson

Podcast

Play an AI-generated podcast conversation about this lesson

Questions and Answers

What does Fuller argue about the nature of Nazi statutes?

  • They were in line with international legal standards.
  • They were fundamentally based on justice.
  • They were progressive and advanced for their time.
  • They could not be considered law due to moral corruption. (correct)

How does Fuller view the role of courts regarding unjust statutes?

  • Courts should ground their rejection in the internal morality of law. (correct)
  • Courts should apolitically interpret the statutes as written.
  • Courts should always uphold existing laws regardless of morality.
  • Courts should reject statutes based on higher law notions.

What solution does Fuller propose for the informer cases?

  • A retroactive statute to isolate these cases. (correct)
  • Complete alignment with international law.
  • Permanent abolition of all Nazi laws.
  • Public trials for all offenders.

According to Fuller, what is necessary for legal morality to thrive?

<p>A connection to justice and decency. (B)</p> Signup and view all the answers

What aspect of legal positivism does Fuller critique in the context of Nazi Germany?

<p>Its vulnerability to manipulation. (B)</p> Signup and view all the answers

What did Fuller imply about Hart's view of judicial rejection of Nazi laws?

<p>It fails to connect law with justice appropriately. (B)</p> Signup and view all the answers

What does Fuller suggest about the judicial process after a retroactive statute?

<p>It could return quickly to a state of legal morality. (D)</p> Signup and view all the answers

What does Fuller argue concerning laws that are disconnected from morality?

<p>They undermine the very existence of law. (B)</p> Signup and view all the answers

What is Kelsen’s basic norm intended to symbolize?

<p>The difference between source-based and acceptance-based rules (D)</p> Signup and view all the answers

How does Fuller view the role of a written constitution?

<p>It can simplify lawmaking but also complicate it. (A)</p> Signup and view all the answers

What does Fuller believe is essential for achieving fidelity to law?

<p>Simple and understandable constitutional drafting (B)</p> Signup and view all the answers

What criticism does Fuller have regarding post-WWII constitutions?

<p>They embed economic and political measures better suited for statutory law. (B)</p> Signup and view all the answers

What fundamental issue does Fuller identify with legal positivism?

<p>It fails to plan for moral foundations in legal systems. (C)</p> Signup and view all the answers

According to Fuller, what should legislatures avoid when passing laws?

<p>Manipulating the lawmaking process within constitutional limits (C)</p> Signup and view all the answers

What does Fuller advocate for regarding substantive limitations in constitutions?

<p>They should be kept to a minimum to ensure procedural guidance. (B)</p> Signup and view all the answers

What does Fuller perceive as a deficiency in the focus of legal positivism?

<p>Labeling actions without questioning their morality. (A)</p> Signup and view all the answers

What is a significant critique by Fuller against positivism?

<p>It creates a rigid distinction between law as it is and law as it ought to be. (C)</p> Signup and view all the answers

Why does positivism leave judges without guidance in certain dilemmas?

<p>It separates law from morality. (A)</p> Signup and view all the answers

What is Thomas Hobbes' view on free will?

<p>Free will does not exist because people's actions are constrained by society. (B)</p> Signup and view all the answers

What does Fuller suggest is necessary for fidelity to law?

<p>Incorporating moral responsibility in law enforcement. (D)</p> Signup and view all the answers

What example does Fuller give to illustrate moral conflict in the judiciary?

<p>A judge's moral convictions clashing with supreme court precedents. (B)</p> Signup and view all the answers

According to Baruch de Spinoza, what constitutes free will?

<p>The capacity to want something or desire to do something. (C)</p> Signup and view all the answers

What happens when law and morality are viewed as collaborative in legal systems?

<p>Judges may find their decisions more aligned with moral standards. (B)</p> Signup and view all the answers

What does constitutionalism achieve in relation to power?

<p>It provides justification for power while also limiting it. (A)</p> Signup and view all the answers

What was the dilemma faced by German courts after the fall of the Nazi regime?

<p>They couldn’t declare the entire legal framework illegal without disruption. (A)</p> Signup and view all the answers

In the context of power, what does the term 'decidability' refer to?

<p>People's ability to determine the range and scope of power. (D)</p> Signup and view all the answers

How does Max Weber define the term 'Macht'?

<p>The active power to do something or effect change. (D)</p> Signup and view all the answers

According to Fuller, what foundation should law have to function effectively?

<p>A moral foundation. (B)</p> Signup and view all the answers

In Fuller's view, what is essential for a legal system to reflect good values?

<p>Connection between law and morality. (B)</p> Signup and view all the answers

What does the term 'Herrschaft' signify in Weber's definition of power?

<p>The legal and recognized authority that superior entities hold. (D)</p> Signup and view all the answers

What aspect of power does Michel Foucault's idea of 'Disziplin' emphasize?

<p>Power that is exercised through physical coercion and enforced behavior. (D)</p> Signup and view all the answers

Prof Brozetti believes that which of the following should be considered when discussing public law?

<p>It is deeply intertwined with political contexts and implications. (B)</p> Signup and view all the answers

Which philosopher's ideas led to the concept that authority is not absolute and can be challenged if it abuses its power?

<p>John Locke (A)</p> Signup and view all the answers

What does Rousseau's concept of 'general will' primarily emphasize?

<p>Authority belongs to the people and reflects majority desires. (C)</p> Signup and view all the answers

According to the historical context given, which event marked the beginning of the English Civil War?

<p>King Charles attempted to arrest Oliver Cromwell in Parliament. (B)</p> Signup and view all the answers

In Rousseau's political ideology, which of the following is considered less important than equality?

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

What principle did the Magna Carta establish regarding the king's power?

<p>The king needed council approval to tax barons. (A)</p> Signup and view all the answers

Which term best describes Rousseau's view of individual dissenters who oppose the general will?

<p>Enemies of the people (D)</p> Signup and view all the answers

What does the concept of 'democratic absolutism' refer to in Rousseau's theory?

<p>A system where the will of the majority leads to oppressive governance. (B)</p> Signup and view all the answers

How did Locke's philosophy impact the Declaration of Independence?

<p>It asserted the right to rebel against unjust authority. (D)</p> Signup and view all the answers

What was a primary outcome of the failure of Robespierre and the Jacobins' application of Rousseau's ideas?

<p>Intolerance towards dissenting opinions. (B)</p> Signup and view all the answers

Which of the following best characterizes the relationship between the king and parliament after the English Civil War?

<p>The king and parliament shared power collaboratively. (A)</p> Signup and view all the answers

What is the primary function of constituent power?

<p>To establish a new legal order after demolishing the previous one (A)</p> Signup and view all the answers

Who is considered the owner of constituent power?

<p>The people or an extra-legal authority (C)</p> Signup and view all the answers

What happens to constituent power once a new constituted power is formed?

<p>It disappears completely (A)</p> Signup and view all the answers

Which example illustrates the concept of constituent power?

<p>Caesar subverting the previous order to establish a new system (B)</p> Signup and view all the answers

What does Kelsen's 'Reine Rechtslehre' emphasize?

<p>A study of law purified from extra-legal elements (B)</p> Signup and view all the answers

Which statement best reflects the views of decisionist realism as represented by Schmitt?

<p>Legal authority arises solely from political decisions (C)</p> Signup and view all the answers

What occurs when constituent power fails to establish a new legal order?

<p>It results in a state of rebellion (B)</p> Signup and view all the answers

Which best characterizes the relationship between constituent power and constituted power?

<p>Constituent power precedes and creates constituted power (B)</p> Signup and view all the answers

What is one major criticism Fuller has regarding the positivist school's approach during crises?

<p>It offers limited guidance in times of crisis. (C)</p> Signup and view all the answers

How does Hart view the influence of morality in law according to Fuller's critique?

<p>Morality is only relevant in borderline cases of law. (B)</p> Signup and view all the answers

What term does Fuller use to describe Hart's idea that evil moralities can be coherent in the same way as good ones?

<p>Immoral morality (D)</p> Signup and view all the answers

What is one potential danger of infusing morality into law, as highlighted by Hart?

<p>It can lead to the integration of immoral moralities. (A)</p> Signup and view all the answers

How does Fuller believe goodness and coherence are related in the justification of actions?

<p>They are naturally aligned. (B)</p> Signup and view all the answers

What aspect of morality do Austin and Gray broadly exclude from their definitions?

<p>All extralegal standards. (D)</p> Signup and view all the answers

Which statement best reflects Fuller's perspective on the positivist school’s definition of law?

<p>It lacks a comprehensive understanding of legal fidelity. (C)</p> Signup and view all the answers

According to Fuller, what is an essential consideration for establishing legal morality?

<p>Focus on the coherence of moral aims. (B)</p> Signup and view all the answers

What was a significant consequence of the legal positivism prevalent in pre-Nazi Germany?

<p>It facilitated the transition to a dictatorship by promoting blind obedience to law. (A)</p> Signup and view all the answers

How did the German legal profession view Anglo-American common law?

<p>As a chaotic mixture of law and morality. (C)</p> Signup and view all the answers

What is a key distinction between Kantianism and Utilitarianism regarding ethical decision-making?

<p>Utilitarianism emphasizes the consequences of actions, while Kantianism is concerned with compliance to duties. (B)</p> Signup and view all the answers

Which characteristic is associated with Legal Positivism?

<p>It relies on written laws to ensure their certainty. (B)</p> Signup and view all the answers

What did Fuller suggest legal positivism failed to address during the Nazi regime?

<p>The moral implications of enacting retroactive laws. (D)</p> Signup and view all the answers

What aspect of German jurisprudence did Fuller believe could have altered postwar legal acceptance?

<p>Emphasis on the internal morality of law. (A)</p> Signup and view all the answers

What criticism do some have regarding the application of Natural Law?

<p>It leads to discretionary and arbitrary judicial actions. (C)</p> Signup and view all the answers

In Kantian ethics, how is an action judged prior to its performance?

<p>By its compliance with ethical law. (A)</p> Signup and view all the answers

What characterization did positivists attribute to adherents of natural law during the rise of positivism in Germany?

<p>Naïve individuals lacking legal rigor. (C)</p> Signup and view all the answers

Why did Hitler’s regime gain little resistance from the legal profession, according to Fuller?

<p>Their positivist mindset promoted obedience to existing laws. (C)</p> Signup and view all the answers

What is a fundamental aspect of Natural Law as compared to Legal Positivism?

<p>It allows judges to create new laws through interpretation. (C)</p> Signup and view all the answers

What did Fuller argue about the legitimacy of legal systems that stray too far from morality?

<p>They cease to be legitimate legal systems. (B)</p> Signup and view all the answers

What is Kant's view on the nature of ethical law?

<p>It must be a priori and unconditional. (B)</p> Signup and view all the answers

Legal Positivism is often criticized for potentially lacking which of the following?

<p>A connection to moral values. (C)</p> Signup and view all the answers

What did Fuller believe was a necessary condition for legal morality to thrive?

<p>Engagement with moral reasoning in legal practice. (B)</p> Signup and view all the answers

What is a primary goal of the Inner Morality of Law as critiqued by Hart?

<p>To provide a framework based on the form of the law. (A)</p> Signup and view all the answers

What distinguishes rational-legal authority from traditional authority?

<p>It operates through set legal procedures and bureaucratic systems. (B)</p> Signup and view all the answers

What concept did Hobbes introduce regarding people's agreement to form a government?

<p>The social contract. (B)</p> Signup and view all the answers

What state of nature does John Locke describe compared to Hobbes' view?

<p>A lawful and orderly environment. (D)</p> Signup and view all the answers

What is a key feature of charismatic authority?

<p>It can exist without legal procedures. (A)</p> Signup and view all the answers

According to Hobbes, what must the governing authority possess to prevent chaos?

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

What does the concept of 'ius ad omnia' refer to in Hobbes' state of nature?

<p>The right to do everything without limitations. (A)</p> Signup and view all the answers

Which of the following best describes Locke's view on government?

<p>It should govern in accordance with pre-political rights. (B)</p> Signup and view all the answers

How does secularization influence the concept of power in the modern age?

<p>It enables questioning of previously accepted authorities. (D)</p> Signup and view all the answers

What does the term 'summa potesta' mean in Hobbes' theory?

<p>Absolute power of the governing authority. (C)</p> Signup and view all the answers

What role do leaders in traditional authority typically rely on?

<p>Their physical attributes and past achievements. (B)</p> Signup and view all the answers

What is a characteristic of constituent power?

<p>It aims to establish a new legal order. (D)</p> Signup and view all the answers

What is the main issue related to the concept of constituent power?

<p>It often leads to political instability. (A)</p> Signup and view all the answers

What does Kelsen's pure doctrine of law emphasize?

<p>A separation from any extra-legal elements. (A)</p> Signup and view all the answers

What is a significant consequence of failing to establish a new legal order through constituent power?

<p>It may be labeled as a rebelling act. (D)</p> Signup and view all the answers

How do Kelsen and Schmitt differ in their approach to law and power?

<p>Kelsen excludes political elements, while Schmitt focuses on authority. (A)</p> Signup and view all the answers

What illustrates the nature of the constituent power during a regime change?

<p>The successful overthrow of a dictatorship. (C)</p> Signup and view all the answers

What was the role of the bourgeoisie in the formation of Liberal Charters in the 19th century?

<p>They wanted to be represented in the lower parliament house. (B)</p> Signup and view all the answers

How did the 20th-century Democratic Charters differ from earlier charters?

<p>They introduced concepts of positive rights requiring state intervention. (A)</p> Signup and view all the answers

What was the characteristic of constitutional law in contemporary constitutionalism?

<p>Establishes rigid constitutions that are difficult to amend. (A)</p> Signup and view all the answers

What is a key feature of constitutional justice in the United States?

<p>The Supreme Court has the authority for judicial review. (A)</p> Signup and view all the answers

What is the main focus of the Originalism doctrine in the US Supreme Court?

<p>Understanding the constitution based on the letter of the law as it was originally intended. (B)</p> Signup and view all the answers

What distinguishes the European conception of constitution from the US conception?

<p>European constitutions are viewed as representations of society as it should be. (A)</p> Signup and view all the answers

Which theory emphasizes the necessity for political actors to defend the constitution?

<p>Political Theory (A)</p> Signup and view all the answers

Which statement best defines the 'Material Constitution'?

<p>It refers to the actual enactment of constitutional principles in practice. (B)</p> Signup and view all the answers

What problem is associated with the constitutional principles?

<p>Normativity of values and varying interpretations. (A)</p> Signup and view all the answers

Which of the following best describes 'Positive Rights'?

<p>Rights that require governmental action for realization. (D)</p> Signup and view all the answers

What impact did the concept of social justice have on state policies in the 20th century?

<p>It necessitated higher taxes, particularly for the wealthy. (A)</p> Signup and view all the answers

In the context of constitutional interpretation, what does the term 'Living Constitution' refer to?

<p>Interpreting the constitution based on current societal values and needs. (B)</p> Signup and view all the answers

Which statement about the rigidity of contemporary constitutions is true?

<p>Amending them is a complex process requiring more than a simple majority. (C)</p> Signup and view all the answers

What principle must be upheld according to the Kelsenian Theory?

<p>Legal matters must be resolved using legal means. (C)</p> Signup and view all the answers

Flashcards

Kelsen's Basic Norm

A symbolic, not factual, concept in legal positivism. It distinguishes laws based on source from those based on acceptance/intrinsic value.

Written Constitution's Role

Clarifies lawmaking procedures, but can also create complexities when procedures are manipulated while staying within constitutional bounds.

Fidelity to Law

The ideal of creating a legal system that is both legally valid (following procedure) and morally just (worthy of obedience).

Planning for Fidelity to Law

Requires a proactive approach, emphasizing simple, understandable constitutions grounded in shared justice, minimizing substantive limitations.

Signup and view all the flashcards

Post-WWII Constitutions' Flaws

Criticized for embedding economic/political measures that should be in statutory law, undermining fidelity to law and creating internal conflicts.

Signup and view all the flashcards

Legal Positivism's Limitation

Fails to address practical/moral issues necessary for achieving fidelity to law. Focuses on labeling actions instead of judging their rightness/wrongness.

Signup and view all the flashcards

Order vs. Morality in Law

Legal positivism emphasizes order (following structure and procedures) while morality focuses on the validity and justifiability for obeying the order of the law.

Signup and view all the flashcards

Court-Packing Proposals

Controversial attempts to manipulate the legal process within a constitutionally defined system, highlighting the potential complexity of written constitutions.

Signup and view all the flashcards

Positivism's Problem (Judge's Dilemma)

Positivism, by strictly separating law from morality, offers no guidance to judges faced with morally conflicted laws.

Signup and view all the flashcards

Fuller's Critique of Positivism

Fuller criticized positivism for not connecting law and morality, hindering judges' ability to handle moral conflicts when enforcing laws.

Signup and view all the flashcards

Judge's Moral Conflict

A hypothetical scenario where a judge's personal morals strongly disagree with the laws they are required to uphold and/or legal precedence.

Signup and view all the flashcards

Moral Foundation of Law

The idea that for a legal system to work effectively and be respected, it needs a solid moral base.

Signup and view all the flashcards

Post-Nazi Legal Dilemma

The challenge German courts faced after the Nazis' demise in declaring the previous regime's laws illegal without causing massive societal disruption.

Signup and view all the flashcards

Rigid Separation of Law & Morality

The strict division between legal rules and ethical considerations, as positivism promotes.

Signup and view all the flashcards

Bad Law

Laws that are questionable or immoral from a moral perspective. These might harm society or lack fundamental justification

Signup and view all the flashcards

Nazi legal system's flaw

Disregard for legal procedure (e.g., retroactive laws, secret statutes) made it not a true legal system.

Signup and view all the flashcards

Informer Cases

Examples illustrating Nazi statutes' moral corruption and lack of legal validity.

Signup and view all the flashcards

Internal morality of law

The ethical principles inherent in a functioning legal system, essential for legal validity.

Signup and view all the flashcards

Retroactive statute

A law that applies to actions taken before its enactment.

Signup and view all the flashcards

Legal morality vs. justice

A legal system cannot be considered moral if it's detached from justice and decency.

Signup and view all the flashcards

Nazi legal manipulation

Nazi Germany used the law as a tool to manipulate and control the legal system, rather than uphold legal principles.

Signup and view all the flashcards

Legal positivism critique

A critique of legal positivism (a school of thought that focuses on the law as it is, not what it ought to be), highlighting its vulnerability to manipulation.

Signup and view all the flashcards

Rejection of Nazi laws

Rejecting Nazi laws should be based on their internal immorality rather than an abstract higher law.

Signup and view all the flashcards

Hobbes' view on free will

Individuals lack free will due to societal constraints. Their actions are predetermined by societal forces.

Signup and view all the flashcards

Spinoza's view on free will

Free will is the ability to desire and act according to one's will. However, power influences desires.

Signup and view all the flashcards

Justification/legitimation of power

Power needs explanation and acceptance to be legitimate. It’s often viewed with suspicion.

Signup and view all the flashcards

Constitutionalism and power

Constitutionalism provides a framework for power, explaining and limiting its scope. It controls power.

Signup and view all the flashcards

Decidability of power

People can influence the extent to which power is exerted, limiting its effect and scope.

Signup and view all the flashcards

Macht (Weber)

Active, factual power to influence or change something.

Signup and view all the flashcards

Herrschaft (Weber)

Legal or authoritative power; superior authority controlling subjects.

Signup and view all the flashcards

Disziplin (Foucault)

Power that physically or socially controls people, influencing how they think and act.

Signup and view all the flashcards

Social Contract

An agreement establishing an authority to judge disputes, but not exceeding pre-political rights, aiming to realize natural law.

Signup and view all the flashcards

Natural Law

The pre-political rights that limit the authority of those who create the law; laws created by social contract cannot violate it.

Signup and view all the flashcards

General Will

The majority's desires in a society, according to Rousseau.

Signup and view all the flashcards

Hobbes' Authority

An absolute authority with no right to resist from the people.

Signup and view all the flashcards

Locke's Authority

Authority with limits based on natural law; people have the right to resist if authority fails to uphold natural law.

Signup and view all the flashcards

Rousseau's Authority

Authority belonging to the people, expressed through the general will, where equality is prioritized over freedom.

Signup and view all the flashcards

Magna Carta

A historical document limiting the king's power, emphasizing fair trials and representation in taxation.

Signup and view all the flashcards

English Civil War

Conflict stemming from power struggles between the king (Charles) and Parliament.

Signup and view all the flashcards

King-in-Parliament

Model of governance in England where the King and Parliament share power; Parliament represents the people.

Signup and view all the flashcards

Positivism

A view of law that is insufficient to understand the full picture of law. It ignores cultural and traditional roots.

Signup and view all the flashcards

Constituent Power

The power capable of completely dismantling the existing legal system and establishing a new one. It's a force of change, overturning established laws and authorities.

Signup and view all the flashcards

Constituted Power

The legal authority that is established by the constituent power. It governs and enforces the new legal order.

Signup and view all the flashcards

Extra-legal Authority

A power or entity that operates outside the existing legal framework. It might be considered illegitimate by the existing system.

Signup and view all the flashcards

Balance of Values

The need to consider and weigh different values equally, especially when rights overlap or conflict.

Signup and view all the flashcards

Kelsen's Formalist Normativism

A legal theory that focuses on the structure and form of laws, separating them from politics and other non-legal considerations.

Signup and view all the flashcards

Decisionist Realism

A theory that emphasizes the role of political decisions in shaping law, even if those decisions go against formal legal norms.

Signup and view all the flashcards

Reine Rechtslehre

Kelsen's theory - The Pure Theory of Law - which seeks to study law as a completely self-contained system.

Signup and view all the flashcards

The People as Constituent Power

The idea that the general public, not just a specific person or group, can hold the power to create a new legal order.

Signup and view all the flashcards

Hart's Objection

Hart argues that Fuller's "Inner Morality of Law" isn't about morality but about the efficient functioning of laws. He accuses Fuller of trying to turn positive law into natural law.

Signup and view all the flashcards

Inner Morality of Law

Fuller's concept describes the ethical principles inherent in a well-functioning legal system. It's about how laws are made and applied, not their content.

Signup and view all the flashcards

Kantianism

A moral philosophy that emphasizes doing the right thing based on duty, regardless of consequences. It focuses on the intention behind actions.

Signup and view all the flashcards

Utilitarianism

This philosophy judges the goodness of an action by its consequences. The best action is the one that brings the greatest happiness to the most people.

Signup and view all the flashcards

Legal Positivism

This school of thought believes that the law is what it is, regardless of morality. It focuses on the written law and its application.

Signup and view all the flashcards

Arguments Against Legal Positivism

Critics argue that legal positivism ignores the influence of morality on law. They also question whether legal positivism can truly be value-free.

Signup and view all the flashcards

The Ultimate Divide

The fundamental difference between Kantianism and Utilitarianism is that Kantianism focuses on how things ought to be, while Utilitarianism focuses on how things are.

Signup and view all the flashcards

Radbruch's Critique

Radbruch argued that legal positivism in pre-Nazi Germany contributed to the rise of the Nazi regime by promoting blind obedience to law, regardless of its morality.

Signup and view all the flashcards

German Legal Profession's Commitment

German lawyers highly valued legal positivism, viewing it as the only scientific approach to law and dismissing natural law theories as 'naive'.

Signup and view all the flashcards

Hitler's Rise and Legal Positivism

Fuller suggests that legal positivism's emphasis on obedience to existing laws, even unjust ones, facilitated Hitler's rise to power through legal means.

Signup and view all the flashcards

Fuller's Critique of Hart

Fuller argued that a focus on the 'internal morality of law' - the ethical principles inherent in a legal system - would have prevented the need for a 'higher law' concept after the Nazi regime.

Signup and view all the flashcards

Legal Systems and Morality

Fuller believes a legal system can become so morally corrupt that it ceases to be legitimate, suggesting that morality is essential for a legal system's validity.

Signup and view all the flashcards

Fuller vs. Hart on Legal Morality

Fuller criticizes Hart's view that legal positivism can be separated from morality. Fuller believes that a legal system must be grounded in ethical principles to be legitimate.

Signup and view all the flashcards

Legal Positivism's Role in Facilitating Nazi Power

Fuller argues that the overreliance on legal positivism in pre-Nazi Germany contributed to the rise of Nazi power, as lawyers were trained to accept any law without question, even immoral ones.

Signup and view all the flashcards

Positivism's Focus on Law vs. Morality

Positivists, like Hart, prioritize preserving law's definition while excluding morality. They consider morality as vague, undefined, and non-legal.

Signup and view all the flashcards

Hart's Treatment of Morality in Law

Hart views morality as influencing the 'penumbra' of law (gray areas), leaving its 'hard core' untouched. He later acknowledges that even bad societies have coherent but evil moral standards.

Signup and view all the flashcards

Dangers of Infusing Morality into Law

Hart warns that injecting morality into law risks integrating immoral morality, potentially guiding judicial decisions towards harm.

Signup and view all the flashcards

Fuller's Rejection of Hart's Assumption

Fuller disagrees with Hart's assumption that evil aims can be as coherent and logical as good ones. He believes goodness and coherence are naturally aligned, and justification generally leads towards goodness.

Signup and view all the flashcards

Austin and Gray's Broad Exclusion of Morality

Thinkers like Austin and Gray exclude all external standards not codified as law as morality. This includes religion, decency, and cultural prejudices, lumping all extralegal notions of 'what ought to be' together.

Signup and view all the flashcards

Evil Morality

Even the worst societies can develop coherent but immoral moral standards.

Signup and view all the flashcards

Immoral Morality

Hart recognizes that not all morality is good, and that even bad societies have consistent moral systems, which can be harmful.

Signup and view all the flashcards

Rational-legal Authority

Power based on established laws and procedures, not personal qualities. Leaders rise based on merit or legal process.

Signup and view all the flashcards

Traditional Authority

Power rooted in customs, traditions, and inherited roles. Authority is based on the past and accepted social norms.

Signup and view all the flashcards

Charismatic Authority

Power based on an individual's extraordinary personal qualities, inspiring loyalty and devotion.

Signup and view all the flashcards

State of Nature (Hobbes)

A hypothetical world without government, rules, or laws, where individuals are driven by self-interest, leading to chaos and violence.

Signup and view all the flashcards

Social Contract (Hobbes)

An agreement where individuals voluntarily sacrifice some of their freedom for the protection and security provided by a sovereign authority.

Signup and view all the flashcards

State of Nature (Locke)

A world where individuals have natural rights, including the right to life, liberty, and property, even before government exists.

Signup and view all the flashcards

Absolute Authority (Hobbes)

A sovereign with unlimited power, necessary to prevent chaos. The people cannot resist the authority's decisions.

Signup and view all the flashcards

Limited Authority (Locke)

A government that is restricted by natural law and the consent of the governed. People have the right to resist tyranny.

Signup and view all the flashcards

General Will (Rousseau)

The common good of the community, expressed through the collective will of the people. This collective will is superior to individual desires.

Signup and view all the flashcards

Secularization

The process by which religion loses its influence on society, allowing questions about power and authority to be debated.

Signup and view all the flashcards

Liberal Charters

Constitutions granted by monarchs in the 19th century, often influenced by the rising bourgeoisie and nationalist movements.

Signup and view all the flashcards

Chartres Octroyée

A type of constitution where the king grants rights and power to the people. It was a form of liberal charter.

Signup and view all the flashcards

Flexible Constitutions (19th Century)

Constitutions designed to be easily adaptable to changing societal needs and new generations, embodying Robespierre's ideas.

Signup and view all the flashcards

Democratic Charters (20th Century)

Constitutions emphasizing social interests and equality, influenced by socialist ideology and the experiences of World War I.

Signup and view all the flashcards

Positive Rights

Rights requiring direct state intervention to be realized, such as the right to education or healthcare.

Signup and view all the flashcards

Rule of Constitutional Law

A system where the constitution holds the highest authority, superseding ordinary laws and requiring a specific process for amendments.

Signup and view all the flashcards

Judicial Review

The power of a court to review laws and declare them unconstitutional, as practiced in the United States.

Signup and view all the flashcards

Marbury v. Madison

A landmark US Supreme Court case that established the principle of judicial review.

Signup and view all the flashcards

Kelsenian Theory

A legal theory emphasizing the formal validity of laws, based on their source and hierarchy.

Signup and view all the flashcards

Schmittian Critique

A critique of legal formalism, arguing that law is inherently political and requires a political guardian for its defense.

Signup and view all the flashcards

Originalism (Constitution Interpretation)

A method of interpreting the constitution based on its original meaning at the time of its creation.

Signup and view all the flashcards

Living Constitution

A method of interpreting the constitution based on its application to contemporary society and evolving values.

Signup and view all the flashcards

Material Constitution

The actual implementation and practice of the constitution in society, which may differ from the written text.

Signup and view all the flashcards

Principle of Effectiveness

The idea that a constitution's legitimacy and success depend on its actual effectiveness in governing society.

Signup and view all the flashcards

Study Notes

  • Conscientious objectors = individuals who refuse to obey specific laws due to moral objections
  • Some may have public sympathy (majority support); others do not
  • Ex.) Medical practitioners refusing an abortion
  • Majoritarian principle: Laws influenced by majority public opinion
  • Ex.) Nazi Germany
  • Freirechtschule's main principle (Radbruch's idea): Laws must align with the felt opinion of the people (public opinion)

Types of Morality

  • Public morality = widespread societal values
  • Ex.) Environmental considerations
  • Private morality = individual values, not affecting society
  • Ex.) Vegetarianism

Is It the Law's Business?

  • Ethical State: A state that controls private morality
  • Opposite of Libertarian States

Studying That Suits You

Use AI to generate personalized quizzes and flashcards to suit your learning preferences.

Quiz Team

Related Documents

OCTOBER Legal Theory Notes PDF

Description

Explore Lon L. Fuller’s arguments regarding the nature of Nazi statutes and the role of courts in relation to unjust laws. This quiz delves into Fuller's critiques of legal positivism, his views on judicial processes, and the necessity of legal morality, particularly in the context of Nazi Germany.

More Like This

Discover the Genius of R
9 questions

Discover the Genius of R

Quizgecko avatar
Quizgecko
AR.BUCKMISTER FULLER Early Career and Family Life
17 questions

AR.BUCKMISTER FULLER Early Career and Family Life

BestKnownLaplace avatar
BestKnownLaplace
Legal Philosophy: Hart vs. Fuller
70 questions

Legal Philosophy: Hart vs. Fuller

DependableClarity4411 avatar
DependableClarity4411
Legal Theory Quiz on Hart and Fuller
48 questions

Legal Theory Quiz on Hart and Fuller

PerfectCloisonnism6337 avatar
PerfectCloisonnism6337
Use Quizgecko on...
Browser
Open
Browser
Browser