Legal Thought Midterm PDF

Natural Law Theory Greek Natural Law Tradition (Scorates) Christian Natural Law Tradition (Aquinas) New-CLassical Natural Law Theory (Finnis) Antigone - Divine law v. Human law Act according to what we believe is right even if it means disobeying a legal statute. Q90: The essence of law; law is an o...

Natural Law Theory Greek Natural Law Tradition (Scorates) Christian Natural Law Tradition (Aquinas) New-CLassical Natural Law Theory (Finnis) Antigone - Divine law v. Human law Act according to what we believe is right even if it means disobeying a legal statute. Q90: The essence of law; law is an ordinance of reason, for the common good, made by those who care for the community and made known to the public. Divine Law - Sacrality, piety, operative forever, inviolable or be cursed Human Law - Utility, opportunity, operative now, violable Q94: Of the natural law; - Speculative reason (what exists) - Practical reason (directed to action) Every agent acts for an end under the aspect of good, since god has the nature of an end, all those things to which man has a natural inclination, are naturally understood to be good. - First precept of the law: Good is to be done and pursued, and evil is to be avoided. (all other follow this one) Finni’s Argument 1. To note that certain goods are clearly presented to men as objective and values 2. Specify the rules of practical reasonableness that direct us towards theme, practical principles 3. Show that the satisfaction of these rules requires the existence of communities with a respected authority 4. Investigate the legal obligation in the moral sense benefiting from authority Socrates - A good life is equivalent to a just and honourable one - Injustice is always an evil and dishonour to him who acts unjustly - Follow an unjust law if it is better for the common good. The right thing to do is to act according to what is right. Socrates believed that doing the right thing meant obeying the laws of Athens, even if it resulted in his own death. When the law is unjust, but right, then you have to plead executive clemency. Q95: Of the human law; Man had a natural aptitude for virtue, but the perfection of virtue must be acquired by man by some kind of training. - For some, parental guidance is enough - For other, it is necessary to guide them through the force of human law Origin: If human laws come from the laws of nature, it is no longer law but a perversion of law. In cases of unjust laws we can disobey the law because it is not law. The act of posting law should be guided by morals. - Morals come from objective reasonableness - Natural law seeks to determine what the requirements of practical reasonableness really are A law may suffer from many defects - If rules use their authority to go against the common good, they lack authority - Unjust laws are not law, except if by not obeying you do more harm to the common good, and upkeep the legal system. Positivist Law Theory Hard Positivist Law Theory (Austin and Bentham) Soft Positivist Law Theory (H.L.A. Hart) Basic principles/ideas (she didn’t go to deep into this) - Complete separation of law and morals - “Law is as it is” instead “law as it ought to be” - Analytical study of the legal concepts - Imperative law theory - Law is a command Hart: - Two dangers → That Hart will try to fix - Law and its authority may be dissolved in man’s conception of what law ought to be - Law may supplant morality as a final test of concur and so escape criticism They never denied: - That morals and played an important role in the development of the legal system - That by explicit legal provisions moral principles might be brought into a legal system and form part of its rules → at this point it is no law however and not considered just moral but legal & moral. - Law is a system or primary and secondary rules Judges are “drawing out” of the law what is already in it - Judges only interpret they do not make new law The principles by which we evaluate or condemn laws are rationally discoverable An unjust law will still be law, because law and morals are different. - Except in extreme cases where the law is too evil to be obeyed, you can and you must disobey the law. Law is a social construct, supersedes the custom it rest on Law is a system of primary rules with secondary rules to reinforce the problem with primary rules. Defects of primary laws Remedies by secondary laws Uncertainty Rule of Recognition Static Rykes of change Inefficiency Rules of adjudication The rule of recognition established the validity of the whole legal system, but it itself is not valid simply accepted → Constitutions The Idea of Obligation: - The social pressure behind the rules is whether they give rise to obligation - Obliged v. Obligated - External POV: as an observer who doesn’t accept law (Obliged) - Internal POV: as a member of the group who accepts them (Obligated) Liberal Legal Theory Dworkin Law doesn’t rest on social facts alone but it is ultimately grounded in consideration of political morality as well as institutional legitimacy. Individuals can have rights against the state that are prior to the rights created by explicit legislation. Distinguish legal principles from legal rules: - Both point to a particular decision about legal obligation in particular circumstances BUT they differ in the character of the direction they give: - Rules are applicable in all-or-nothing - Principles incline in a decisions one way, though not conclusively, and they survive intact when they do not prevail - Principles are binding → on their own or can be extrapolated from present laws - Judges perform their role appropriately when they attempt to find answers that cohere with the principles that justify the law generally considered relevant to the questions they face. Interpretation of the Law: - We are all subject ot law’s empire - Law is an interpretive concept - Comprehensive interpretation of legal practice → the interpretation has to fit into the best legal principle, based on past decisions and legal principles. (Chain novel example) - Law as integrity asks judges to assume that law is structured by a coherent set of principles about justice, fairness and procedural due process. - It asks them to enforce these in the cases that come before them, so that each persons’ situation si fir and just according to the same standards Dworkin's Principles - Justice → the right outcome of the political system - Fairness → right structure - Procedural due process → right procedures for enforcing rules and regulations the system has produced - Law as integrity → unites jurisprudence and adjudication, the consent of law depends on the refined and concrete interpretation of the legal system since it began In hard cases the right answers have to be hunted by reason and imagination. But to say this is different from whether it can be demonstrated they are right. Most often they cannot be proven right, in the strict definition of the word. Critical Legal Theory Purpose: to challenge the universal rational foundation of law: - The law is not an autonomous principle → it cannot be independent from politics and morality - The law is not a coherent body or rules and doctrine, it is uncertain ambiguous and unstable - The law is not rational → it reproduces political and economic power - The law is neither neutral or objective Realism: 1920 - 30s - Two school: American and Scandinavian - In common: they rejected the conflation of law and morality; distrust absolute values such as justice - Considered to be positivist because they the “law as it is”