LEGAL THEORY EXAM
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Questions and Answers

What is described as a normative order that allows social life and politics to take place?

  • Law (correct)
  • Governance
  • Customs
  • Culture

Which perspective suggests that the goals of the strongest are prioritized in political decision-making?

  • Utilitarianism
  • Social contract theory
  • Carl Schmitt’s view (correct)
  • Democratic idealism

Which of the following is NOT considered a political decision-making process?

  • Choosing a social program to fund
  • Assessing community health resources
  • Deciding community fiscal policies
  • Determining how to spend free money in a family (correct)

In the elementary view of politics, which step comes immediately after opinions are heard?

<p>Options are assessed (C)</p> Signup and view all the answers

What is required for political decision-making to be effective in a community?

<p>Norms and rules governing the process (A)</p> Signup and view all the answers

What does Hart argue about not all rules being commands?

<p>Some rules do not impose obligations. (D)</p> Signup and view all the answers

What does Hart's thought experiment regarding a society with no written laws suggest?

<p>Primary rules existed before the sovereign's authority. (C)</p> Signup and view all the answers

Which of the following accurately describes primary rules according to Hart?

<p>They regulate behaviors within society. (A)</p> Signup and view all the answers

What function do secondary rules serve in Hart's framework?

<p>They regulate and provide powers to change primary rules. (D)</p> Signup and view all the answers

Why does Hart criticize the concept of habitual obedience in relation to a new sovereign?

<p>There is no habit of obeying the new king after succession. (A)</p> Signup and view all the answers

What is the primary concern of Public Law in the context of the Roman Empire?

<p>Empire’s interests (B)</p> Signup and view all the answers

In the Middle Ages, what was the main conflict regarding law?

<p>Canon Law vs Secular Law (D)</p> Signup and view all the answers

What concept describes the majority ruling without consideration for individual rights?

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

What significant role did Hans Kelsen play post-World War I?

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

What does the Hierarchy of Norms theory suggest about the validity of laws?

<p>Higher norms grant validity but do not affect law content. (C)</p> Signup and view all the answers

What defines the state according to Hans Kelsen's theory?

<p>A legal organization of norms (C)</p> Signup and view all the answers

What was a notable challenge Hans Kelsen faced in the U.S. academic community?

<p>Opposition from prominent legal scholars (B)</p> Signup and view all the answers

Which of the following best describes the concept of Democratic Government as per the content?

<p>Limitations on public authority and recognition of individual rights (A)</p> Signup and view all the answers

What is a key distinction between rules and principles in legal contexts?

<p>Rules can be easily numbered, whereas principles cannot. (B)</p> Signup and view all the answers

How does Dworkin view the constitution?

<p>As a compound of principles that guide legal interpretation. (A)</p> Signup and view all the answers

What does the principle 'no one cannot profit from an unlawful act' imply?

<p>Legal punishment applies regardless of potential benefits. (D)</p> Signup and view all the answers

What is an example of a balancing of principles?

<p>Having to compensate a former employer after taking a new job. (D)</p> Signup and view all the answers

Why can certain legal principles not be enumerated?

<p>They are universally accepted and do not require documentation. (B)</p> Signup and view all the answers

What does Justice-tracking refer to in legal interpretation?

<p>Examining historical contexts alongside present-day interpretations. (A)</p> Signup and view all the answers

What may change regarding the term 'war' from 1948 to the present?

<p>The implications of self-defense may now be viewed differently. (C)</p> Signup and view all the answers

Which statement accurately reflects the relationship between principles and exceptions?

<p>Principles are absolute and do not allow for exceptions. (D)</p> Signup and view all the answers

What is a significant aspect of the US Bill of Rights?

<p>It accepts that not all rights can be numerically cataloged. (A)</p> Signup and view all the answers

What does Rawls mean by 'constituent power'?

<p>The ability to set the rules of a political and legal system (A)</p> Signup and view all the answers

According to Rawls, which of the following distinguishes between constituent power and ordinary power?

<p>Whether the power operates under natural law (C)</p> Signup and view all the answers

What is the role of the 'higher law' in Rawls’ framework?

<p>It embodies the expression of the people’s constituent power (C)</p> Signup and view all the answers

How does Rawls view the constitution in relation to natural rights?

<p>As a translation of higher law into political and legal language (B)</p> Signup and view all the answers

What does Rawls emphasize about the relationship between 'the people' and 'the voters'?

<p>The people are the authors of the constitution, while voters have constituted power. (A)</p> Signup and view all the answers

What is meant by the 'instrumental view of the constitution' in Rawls’ thought?

<p>The constitution is viewed as a tool for governmental power to prevent conflict. (D)</p> Signup and view all the answers

Which principle of Rawls’ constitutionalism asserts that the authority of ordinary law comes from Congress?

<p>The distinction between higher and ordinary law (B)</p> Signup and view all the answers

What does Rawls suggest about a democratically ratified constitution with a bill of rights?

<p>It establishes certain constitutional essentials agreed upon by citizens. (A)</p> Signup and view all the answers

Which of the following captures Rawls' view on political justice?

<p>It encompasses an overlapping consensus of various major conceptions. (A)</p> Signup and view all the answers

What is the defining feature of a reasonable person in the context of proposing rules?

<p>They respect and abide by reasonable rules. (A)</p> Signup and view all the answers

How does Rawls view the constituent power regarding law-making?

<p>Bounded by reason and interpretation. (C)</p> Signup and view all the answers

What do utilitarians believe about natural rights?

<p>They are only valuable if they lead to utility. (D)</p> Signup and view all the answers

What perspective do most authors take concerning 'the people' in self-governance?

<p>It refers to a self-governing entity. (A)</p> Signup and view all the answers

Which of the following statements best represents Locke's view of law?

<p>All laws must respect natural rights. (D)</p> Signup and view all the answers

According to Rawls, what is one capacity of 'the people'?

<p>To engage in collective political action. (D)</p> Signup and view all the answers

What does the Italian Constitution state about sovereignty?

<p>It belongs to the people and is exercised by them. (D)</p> Signup and view all the answers

Which thinker suggested that the person is rooted in reason?

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

What do most European constitutions claim regarding sovereignty?

<p>It belongs to the people. (B)</p> Signup and view all the answers

What is one characteristic of Hobbes's view of the person?

<p>Influenced by passion. (D)</p> Signup and view all the answers

Flashcards

Political prioritization

The process of deciding which goals a community should prioritize, considering competing interests and limited resources.

Law as a normative order

A system of rules that guides social life and political decision-making, specifying acceptable behavior.

Political process

A systematic procedure for addressing social problems, considering views and implementing chosen solutions.

Community prioritization

A process of selecting specific goals from a range of possible community goals—because not all can be pursued simultaneously.

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Democracy vs. Undemocracy in political decision-making

Different ways a community can decide what to prioritize in addressing problems - either through participation or imposed decisions.

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Hart's Criticism of Command Theory

Hart argued that not all rules are commands, as some rules (like civil law) don't impose obligations or sanctions.

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Habitual Obedience Problem

Hart argued that the idea of habitual obedience to a ruler doesn't work if the ruler changes, as there's no pre-existing habit of obedience to the new ruler.

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Primary & Secondary Rules

Hart proposed rules that regulate behaviors (primary) and rules that regulate the primary rules (secondary), like those establishing law-making authority.

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Rules of Change

Secondary rules that let people change laws or statuses (e.g., contracts, marriages).

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Sovereign's Authority

Secondary rules establish the sovereign's (or government's) power to create and change laws.

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Public vs. Private Law (Roman Empire)

Public law focused on the empire's interests, like governance and security, while private law addressed individual matters like property and contracts.

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Canon Law vs. Secular Law (Middle Ages)

Canon law, based on religious principles, governed the church and its members, while secular law dealt with worldly affairs like criminal justice and property.

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Popular Sovereignty

The people as a whole hold ultimate power, deciding laws and policies without individual rights or limits.

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Democratic Government

A system where power rests with the people, but individual rights and limits on authority exist.

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Hans Kelsen's Pure Theory of Law

Kelsen believed law is a hierarchy of norms, where each lower level gains validity from a higher one, creating a closed system.

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State as a Legal Order

According to Kelsen, the state isn't just a political entity, but a structured system of laws and regulations.

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Hierarchy of Norms

Higher norms, like constitutions, grant validity to lower norms like statutes, creating a chain of legal authority.

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Subordinate Norms

Laws and regulations created under the authority of higher norms in a hierarchical legal system.

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Principles vs. Rules

Principles are non-binding guidelines that emphasize balancing competing values, while rules are concrete and prioritize certain actions over others.

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Balancing Principles

When two or more principles conflict, a decision maker weighs them against each other to find a solution that honors their underlying values as much as possible.

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Unenumerated Principles

These principles are so fundamental and widely understood that they cannot be easily listed or defined, like the concept of not being able to walk through walls.

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Justice-Tracking

Understanding how a legal principle changes over time, tracking its evolution based on social and political context.

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Originalist Interpretation

Interpreting a legal principle based on the original intent of its creators at the time of its creation.

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Dynamic Interpretation

Adapting the meaning of a legal principle to reflect changes in society and values over time.

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Legitimate Self-Defense

The use of force to protect oneself or others from imminent danger, often in the context of international law.

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War as an Instrument of Aggression

Using war as a means to dominate or harm other countries, a concept condemned by international law.

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International Disputes

Conflicts between nations or groups of nations, often arising from differences over territory, resources, or ideologies.

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Constitution as a Compound of Principles

A constitution, in Dworkin's view, is not just a set of rules, but a complex system of principles that guide interpretation and decision-making.

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Overlapping Consensus

A political conception of justice where different major political views in a nation find common ground and agree on fundamental principles.

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Freestanding Validation

A philosophical justification for a political conception of justice, demonstrating its reasonableness and fairness.

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Constituent Power

The power to establish the fundamental rules of a political and legal system, acting like a foundation.

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Ordinary Power

The power exercised by the government and elected officials within the established legal framework.

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Higher Law vs. Ordinary Law

Higher law refers to the constitutional principles that define the overall system, while ordinary law is the specific legislation passed by government.

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Constitutional Essentials

Fundamental principles and values enshrined in a constitution that establish the basic structure of the political system.

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Instrumental View of Constitution

The perspective that the constitution is merely a tool to prevent conflict and maintain social order.

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Rawlsian View of Constitution

The view that the constitution embodies a translation of higher moral principles into political and legal language.

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Citizens Establish Constitutional Essentials

Through a democratic process, citizens determine and enshrine certain fundamental values and principles in the constitution.

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Constitutional Democracy

A political system where no single branch of government holds ultimate authority, and the constitution serves as the supreme law.

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Reasonable Person

Someone who is willing to propose, respect, and abide by reasonable rules, even with potential disadvantages, assuming others do the same.

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Pluralism

The existence of diverse viewpoints, even those that may be unreasonable or morally questionable.

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Rawls's Constituent Power

The power of a constitutional assembly to create laws, bounded by reason and the specific need for laws to be internally consistent.

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Locke's Constituent Power

The power of a constitutional assembly to create laws, limited by the protection of natural rights.

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Utilitarian Constituent Power

The power of a constitutional assembly to create laws based on maximizing overall utility, with natural rights justifiable if they benefit society.

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The People as a Self-Governing Entity

The concept of 'the people' as a collective body with the right to self-governance, often embodied in constitutional principles.

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Rawls's Concept of 'The People'

A collective group defined by its capacity for political action and self-regulation through constitutional rules.

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Collective Political Action

The people's ability to engage in political processes, including voting and influencing policy through collective action.

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Constitutional Rule

The people's ability to self-regulate their political action through established constitutional principles and procedures.

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Political Prioritization in Scarcity

The people's exercise of political action to decide on which collective goals to prioritize due to limited resources.

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Study Notes

Week 7

  • Constitutionalism was the main topic discussed, with political liberalism by John Rawls and sovereignty across generations by Alessandro Ferrara as subtopics.
  • Assignments were available on Luiss Learn.
  • The lecture introduced the difference between asking "what is law?" and "what is the law?".
  • Descriptive sense: Law as it is (facts of the law). Examples include Isaac Newton's Law of Gravitational Attraction.
  • Normative sense: Law as it ought to be (prescriptions regarding how reality should be).
  • The law is valid even if it's frequently broken.
  • Hans Kelsen focused on the efficacy of law. This means that a law that doesn't effectively regulate social life is defective.
  • Talcott Parsons discussed the function of law, highlighting human actions as choosing means to achieve goals, with connected goals like setting an alarm, coming to class on time, succeeding academically, graduating, and ultimately securing a desirable career.
  • These goals are not considered means towards other goals but instead ultimate goals.

Week 8

  • Legal Positivism and its determining factors for the validity of a law were the focus of the lecture.
  • The origins of a law, not its content, determine its validity.
  • According to Thomas Hobbes, a law's validity depends on the sovereign who created it.
  • Legal positivism is based on five assumptions about the law:
      1. Law is man-made. There must be a lawgiver.
      1. Separation of law and morality: Law is separate from moral considerations.
      1. Pure analysis of legal concepts distinct from other subjects.
      1. A closed, logical system: Legal decisions can be deduced from pre-determined rules.
      1. Moral judgment cannot be derived logically from legal concepts.

Week 9

  • Private law concerns horizontal relationships between individuals and includes contract, commercial, labor, and family law.
  • Public law concerns vertical relationships between individuals and institutions, including constitutional, criminal, international, and tax law.
  • There is a distinction in understanding law in antiquity, with the Roman Empire differentiating between public and private law, and the middle ages focusing on Canon Law versus Secular Law.

Week 10

  • The concept of a "stable and just society" was presented, particularly considering the profound divisions in modern society when considering reasonable, philosophical doctrines; asking how society maintains stability while remaining respectful of diverse beliefs was highlighted.
  • Rawls discussed the basic structure, including political, social, and economic institutions, as crucial to a just society; its fair interpretation as a freestanding view was also highlighted.
  • Rawls emphasized the idea of "society as a fair system of cooperation" to achieve a stable and just society by focusing on the importance of fair terms of cooperation and reciprocity amongst reasonable citizens.

Week 11

  • Rawls and Schmitt's viewpoints were compared, emphasizing their shared focus on constituent power, despite differing interpretations.
  • Kelsen's view was presented showing that he considered constituent power outside the realm of law, in contrast to Rawls.
  • The question of whether an amendment to a constitution is legitimate or not was explored.

Week 12

  • The self-correcting demos, with its ability for self-correction in its ongoing commitment, was presented to demonstrate how the current generation can maintain some power to shape the constitution and correct weaknesses.
  • The concept of amending power, including the question of when an amendment is acceptable and when it is not, was discussed.
  • The necessity of having amending power to adapt to changing circumstances and errors in the constitution was examined.

Additional

  • The concepts of the "people" and "voters" as sources of constitutional authority were examined, with the distinction between their roles being highlighted.

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Test your knowledge on key concepts in political theory. This quiz covers fundamental ideas such as normative orders, decision-making processes, and Hart's contributions to the understanding of rules in politics. Prepare to delve into the critical aspects of political frameworks and theories.

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