Philosophy of Law: Hobbes and Hart
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Questions and Answers

In Hobbes' view, what is necessary for individuals to live peacefully?

  • Total submission to the sovereign
  • Establishment of multiple governing bodies
  • Complete freedom to act as they wish
  • Formation of a society for protection (correct)

What does Hobbes define as the origin of justice?

  • The state of nature
  • The consent of the governed
  • Shared moral values within society
  • The law issued by a sovereign (correct)

What is the role of sovereignty according to Hobbes?

  • It is dependent on public approval
  • It is accountable to the law
  • It embodies ultimate unrestricted power (correct)
  • It should provide checks and balances

Why did H.L.A. Hart criticize John Austin's theory?

<p>He found it too simplistic for understanding legal obligations (D)</p> Signup and view all the answers

What does tacit consent imply in the context of law?

<p>Lack of objection indicates acceptance of a law (D)</p> Signup and view all the answers

What is a key aspect of Dworkin's view on law and morality?

<p>Law cannot be separated from what it should be. (D)</p> Signup and view all the answers

According to Dworkin, how are principles characterized compared to rules?

<p>Principles are more subjective than rules. (C)</p> Signup and view all the answers

What distinguishes Hart's soft legal positivism from hard legal positivism?

<p>Soft positivism includes extra-legal norms. (B)</p> Signup and view all the answers

What is the primary focus of L.L. Fuller’s approach to natural law?

<p>Separating religious beliefs from natural law. (B)</p> Signup and view all the answers

In Dworkin's view, what role does interpretation play in law?

<p>Interpretation is essential for achieving the best legal outcomes. (C)</p> Signup and view all the answers

What is required for constituent power to come into play?

<p>The existing regime must be resolved (D)</p> Signup and view all the answers

What differentiates higher law from ordinary law in Rawls' constitutionalism?

<p>Higher law is the expression of people's constituent power. (C)</p> Signup and view all the answers

What is a characteristic of a democratic constitution according to Rawls?

<p>It reflects the people's will to govern themselves. (C)</p> Signup and view all the answers

What does legal positivism emphasize as the origin of law?

<p>The sovereign's will (B)</p> Signup and view all the answers

What does Rawls mean by the separation of powers in a constitutional democracy?

<p>No single branch of power has ultimate control. (D)</p> Signup and view all the answers

How does legal positivism regard the relationship between law and morality?

<p>They are completely independent (A)</p> Signup and view all the answers

Who holds ultimate power in Rawls' view of constitutional governance?

<p>Three branches of government in a defined relationship (A)</p> Signup and view all the answers

What does the term 'Grundnorm' refer to in legal positivism?

<p>The ultimate rule or norm of a legal system (B)</p> Signup and view all the answers

What assumption does legal positivism hold regarding the creation of law?

<p>It is a product of human activity (D)</p> Signup and view all the answers

According to natural law theory, what must be present in the law?

<p>A basis in moral principles (D)</p> Signup and view all the answers

What is the primary focus of the political concept of justice?

<p>Establishing a fair society through its main institutions (A)</p> Signup and view all the answers

What is considered a deficiency in law according to the normative sense?

<p>Law that does not align with reality. (D)</p> Signup and view all the answers

According to Rawls, what must a legitimate constitution reflect?

<p>A consensus on fairness and justice across diverse beliefs (B)</p> Signup and view all the answers

How does Karl Schmitt view the ability of a community to meet goals?

<p>A community must prioritize certain goals over others. (A)</p> Signup and view all the answers

What aspect does the political concept of justice NOT focus on?

<p>Individual interpretations of morality (A)</p> Signup and view all the answers

Which type of rule exists prior to the action it governs?

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

How should the principles of a constitution be supported, according to Rawls?

<p>By solid philosophical reasoning (C)</p> Signup and view all the answers

What is one aspect of the political concept of justice mentioned in the content?

<p>It addresses the philosophical foundations of justice (A)</p> Signup and view all the answers

What aspect do constitutional rights have according to the content?

<p>They are both regulative and constitutive. (D)</p> Signup and view all the answers

What defines social life according to the priorities mentioned?

<p>The priorities of the strongest groups. (D)</p> Signup and view all the answers

What does the term 'reasonable' refer to in the context of political philosophy?

<p>Willingness to engage in fair cooperation (D)</p> Signup and view all the answers

What is the 'Liberal Principle of Legitimacy' primarily concerned with?

<p>The validity of political power under shared agreements (A)</p> Signup and view all the answers

What is meant by 'public reason' in political discussions?

<p>Debates based on universally comprehensible principles (D)</p> Signup and view all the answers

What does the concept of 'well-ordered society' mean?

<p>A society that adheres to shared principles of justice (A)</p> Signup and view all the answers

What is the goal of 'overlapping consensus' in a diverse society?

<p>To create stability through agreement on basic political principles (D)</p> Signup and view all the answers

What are the two principles of Rawls' theory of justice as fairness?

<p>Equal basic rights and liberties, and the Difference Principle (B)</p> Signup and view all the answers

How does Schmitt define the Absolute Constitution?

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

Which of the following best describes the Difference Principle in Rawls' theory?

<p>Inequalities are acceptable only if they improve the situation of the least advantaged (D)</p> Signup and view all the answers

What characterizes the Positive Constitution according to Schmitt?

<p>It emerges from a political decision made by a sovereign authority (A)</p> Signup and view all the answers

Which type of constitution does Schmitt refer to as a militant constitution?

<p>The Ideal Constitution (B)</p> Signup and view all the answers

What does the Rule of Change govern?

<p>Changes in status such as contracts and marriage (D)</p> Signup and view all the answers

Which concept asserts that a sovereign's power is not above the law?

<p>Locke's Natural Law (C)</p> Signup and view all the answers

What is the primary focus of the Rules of Adjudication?

<p>Creating procedures for resolving conflicts (A)</p> Signup and view all the answers

What does Contemporary Natural Law suggest about the validity of laws?

<p>It depends on the moral merit of its norms (C)</p> Signup and view all the answers

Which of these concepts is described as the supreme power in a political entity?

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

What is the 'Veil of Ignorance' concept in Rawls's theory?

<p>Formulating societal rules without personal knowledge of one’s identity (A)</p> Signup and view all the answers

Which concept refers to balancing moral principles to achieve consistency in beliefs about justice?

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

What aspect does Rawls emphasize as essential to the concept of justice?

<p>Ensuring equal rights and opportunities for all (C)</p> Signup and view all the answers

What does the 'Circumstances of Justice' refer to in Rawls's work?

<p>Instances requiring justice due to limited resources and conflicting interests (B)</p> Signup and view all the answers

How does Rawls distinguish between justice and utilitarianism?

<p>Utilitarianism seeks the greatest happiness for the largest number of people (C)</p> Signup and view all the answers

What does the 'Fact of Pluralism' acknowledge in Rawls's theory?

<p>The validity of diverse viewpoints and beliefs within society (B)</p> Signup and view all the answers

What is the primary focus of the 'Original Position' as per Rawls's thought experiment?

<p>Creating societal rules without knowledge of one's identity or status (B)</p> Signup and view all the answers

What does 'Reasonable Pluralism' signify in Rawls's philosophy?

<p>The acceptance and coexistence of various beliefs in society (A)</p> Signup and view all the answers

Flashcards

Hobbes' State of Nature

A hypothetical scenario where individuals live without a governing authority, resulting in chaos and a constant threat of violence.

Social Contract Theory

The idea that individuals voluntarily give up some freedom to live in a society governed by laws, for the sake of protection and order.

Sovereignty

The ultimate power in a society, unrestrained by any legal authority, according to Hobbes.

Tacit Consent

The acceptance of a law by individuals who do not actively object to or challenge it.

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Austin's Theory of Law

The belief that laws are commands issued by a sovereign with the power to impose sanctions, and people obey because of fear of punishment.

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Well-Ordered Society

A society where everyone agrees on the same principles of justice, and institutions follow those principles.

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Reasonable vs. Rational

Rational means pursuing what is good for oneself, while reasonable means being willing to cooperate fairly and acknowledge others' rights.

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Burden of Judgment

Factors that cause reasonable people to disagree on moral or political issues, despite everyone being reasonable.

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Liberal Principle of Legitimacy

Political power is only justified and valid if used in a way that all reasonable people can agree on.

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Overlapping Consensus

Citizens with different beliefs agree on basic political principles, creating stability in a diverse society.

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Political Concept of Justice

This concept focuses on building a fair society by analyzing its main institutions (political, economic, and social). It's a standalone view based on ideals of a well-ordered society.

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Object of Political Justice

The main political, economic, and social institutions of a society. This refers to the structures that make up the society.

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Rawls' Legitimacy of Law

A constitution is legitimate if its core principles are based on fairness and justice, and if everyone can agree on these principles despite their differences.

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Fair Society

A society with a just system where everyone is treated fairly and given equal opportunities, regardless of their beliefs or background.

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Broad Agreement

When society reaches a consensus on core principles of justice and fairness, despite diverse beliefs and backgrounds.

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Dworkin's Legal Theory

Dworkin believes law is inseparable from what it should be. He argues that interpretation is key to finding the best outcome for the legal system, considering principles as well as rules.

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Dworkin's Rules vs. Principles

Rules can be listed and prioritized, while principles are more abstract and subjective, reflecting moral values.

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Fuller's Natural Law

Fuller separates natural law from religious beliefs. He emphasizes the importance of moral principles in a legal system.

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Hart's Soft Positivism

Hart, a soft positivist, acknowledges the influence of non-legal factors (like moral values) in shaping legal decisions.

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Hard vs. Soft Legal Positivism

Hard legal positivism strictly focuses on legal sources, while soft legal positivism considers non-legal factors like morality.

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Justice as Fairness

Rawls' theory that a just society can be achieved by upholding two principles: equal basic rights and liberties, and accepting inequalities only if they benefit the least advantaged.

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Difference Principle

Rawls' principle that states inequalities are acceptable only if they benefit the least advantaged members of society. This principle prioritizes the well-being of those who are most vulnerable.

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Absolute Constitution (Schmitt)

A concept of the constitution as a fundamental principle that goes beyond specific laws; it's the underlying form of society.

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Relative Constitution (Schmitt)

A concept viewing the constitution as a collection of specific provisions and articles, which is the most practical and clear way of understanding it.

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Positive Constitution (Schmitt)

This constitution comes from a political decision by a sovereign power, determining the ultimate law of laws.

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Legal Positivism

A philosophy of law that states law is created by a sovereign and is separate from morality.

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Grundnorm

The fundamental norm underlying a legal system, according to Hans Kelsen's theory of legal positivism. It is the ultimate source of legal validity and is not subject to question.

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Natural Law

A philosophy of law that suggests law should be based on morality and inherent principles of justice.

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Separation of Law and Morality

A key principle of legal positivism that states legal validity and moral correctness are distinct concepts.

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Law's Origin

Legal positivism focuses on the source of law, suggesting that it originates from the will of the sovereign, exemplified by political thinkers like Hobbes and Schmitt.

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Just Principles

Fundamental principles of justice, recognizing diverse beliefs and viewpoints in society.

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Veil of Ignorance

Imagining rules for society without knowing your own personal circumstances, background, or position in society.

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Reflective Equilibrium

A process of continually balancing and adjusting moral principles to create a consistent view of justice.

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Original Position

A conceptual thought experiment where individuals imagine creating societal rules without knowing their own identity or place in society, similar to a state of nature.

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Circumstances of Justice

Conditions where justice is crucial, such as limited resources and competing interests among diverse groups.

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Reasonable Pluralism

The acceptance of various beliefs and doctrines in a free society.

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Fact of Pluralism

The reality that many different viewpoints and beliefs coexist in a society.

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Constituent Power

The power of a people to create or change their fundamental governing structure. This power is only exercised when there's a significant shift in regime, such as a revolution or a major constitutional overhaul.

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Higher Law vs. Ordinary Law

Higher law represents the fundamental principles established by the people's constituent power (e.g., a constitution), while ordinary law comes from the regular processes of government like legislation and judicial decisions.

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Democratic Constitution

A constitution reflecting the will of the people that establishes a system of self-government. It typically includes a bill of rights, protecting fundamental freedoms.

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Separation of Powers

A system where governmental authority is divided among different branches (e.g., legislature, executive, judiciary) to prevent any one branch from becoming too powerful.

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Ultimate Power in a Democracy

In a Rawlsian democracy, ultimate power is distributed among the three branches of government - the legislature, the executive, and the judiciary. Each branch plays a distinct role, preventing any one from having absolute control.

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Rules of Change

These rules govern changes in legal status, such as contracts, wills, and marriages.

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Rules of Adjudication

These rules set procedures for resolving legal disputes, such as establishing courts and defining how cases are heard.

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Rules of Recognition

These rules determine the validity of a legal system, serving as the ultimate source of authority for its laws.

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Locke's Natural Law

Locke argued that a sovereign's power is subject to natural law and that individual freedoms are essential for a just commonwealth.

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Contemporary Natural Law

This view emphasizes the moral merit of laws. Laws are considered valid only if they are morally justifiable.

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Descriptive Law

Law as it actually exists, focusing on how it functions in practice.

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Normative Law

Law as it should be, focusing on what ought to be the case.

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Regulative Rule

A rule that limits pre-existing actions or behaviors.

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Constitutive Rule

A rule that creates a new action or behavior.

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Constitutional Rights

Rules that both create and limit actions, serving as both constitutive and regulative forces.

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Study Notes

Hobbes's Concept of Law

  • Hobbes's theory of law focuses on the state of nature, arguing individuals would choose a sovereign to form a society in order to have protection.

  • Justice comes from the law

  • The law is considered a command with sanctions issued by a sovereign.

  • Sovereignty = Ultimate Power, unrestricted.

  • Tacit Consent: If no one objects to a law, then everyone accepts it

Hart's Critique of Austin

  • Hart argues Austin's theory is too simplistic, stating individuals obey rules because they trust the legitimacy of the rules.

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Description

Explore the contrasting views of Hobbes and Hart on legal theory in this quiz. Hobbes emphasizes the necessity of a sovereign for societal protection, while Hart critiques Hobbes's perspective by highlighting the role of legitimacy in law adherence. Test your understanding of these foundational concepts in philosophy.

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