10/24/24, 10:48 AM
Philosophy of Law With Complete Solutions.
Terms in this set (28)
-Law is based on social facts and some facts about morality
-Law & Morality are connected because law is made up of moral truths
Natural Law
1. If law is unjust, it is not a law
2. If legal system is unjust, it is not a valid legal system
Law's essence is to be found in the values it serves, not the unique structural features
Functionalist Argument
it possesses
Problems with Functional Argument/ -Law can seem unjust while serving a value
Natural Law -What serves some good may not serve THE good (Moore)
Asks two questions:
1. Was law created by correct/legit authority?
2. Did authority follow the correct procedures?
Legal Positivism
**If it answers both questions, "yes", then it is a law
-if not covered by law, judge decides
-Base law on what? How do you decide to pass the law?
-How can we decide if law they pass is even valid?
Criticisms of Legal Positivism
(Natural lawyers have an answer to this question--morality)
-Law is a command by a sovereign
Austin -Law requires obedience/obligation to comply
-Subject to punishment
-What about laws that don't look like commands? (contractual law? this is just
criminal law)
Problems with Austin -(Hart's criticism) Why are we obligated to follow the law? What is legitimate
authority?
-obligation vs obliged
Designed to show that law=social facts/practice
Importance of Austin
Distinguished between what law is and what it ought to be (Nazi law=law, even if it is
unjust)
- law is the union of primary and secondary rules -primary rules are laws about how
a person should act
HLA Hart
-secondary rules are rules by which the primary rules are created, identified,
changed, and understood ( justification=internal aspect of rules)
-The rule of Recognition shows that most law is valid because it is enacted by a
Probems with Hart legislature or because the laws are prior precedent.
-The rule of recognition does not work for cases like Riggs, Dworkin states
1/4
Philosophy of Law With Complete Solutions.
Terms in this set (28)
-Law is based on social facts and some facts about morality
-Law & Morality are connected because law is made up of moral truths
Natural Law
1. If law is unjust, it is not a law
2. If legal system is unjust, it is not a valid legal system
Law's essence is to be found in the values it serves, not the unique structural features
Functionalist Argument
it possesses
Problems with Functional Argument/ -Law can seem unjust while serving a value
Natural Law -What serves some good may not serve THE good (Moore)
Asks two questions:
1. Was law created by correct/legit authority?
2. Did authority follow the correct procedures?
Legal Positivism
**If it answers both questions, "yes", then it is a law
-if not covered by law, judge decides
-Base law on what? How do you decide to pass the law?
-How can we decide if law they pass is even valid?
Criticisms of Legal Positivism
(Natural lawyers have an answer to this question--morality)
-Law is a command by a sovereign
Austin -Law requires obedience/obligation to comply
-Subject to punishment
-What about laws that don't look like commands? (contractual law? this is just
criminal law)
Problems with Austin -(Hart's criticism) Why are we obligated to follow the law? What is legitimate
authority?
-obligation vs obliged
Designed to show that law=social facts/practice
Importance of Austin
Distinguished between what law is and what it ought to be (Nazi law=law, even if it is
unjust)
- law is the union of primary and secondary rules -primary rules are laws about how
a person should act
HLA Hart
-secondary rules are rules by which the primary rules are created, identified,
changed, and understood ( justification=internal aspect of rules)
-The rule of Recognition shows that most law is valid because it is enacted by a
Probems with Hart legislature or because the laws are prior precedent.
-The rule of recognition does not work for cases like Riggs, Dworkin states
1/4
