POLS 2350 Midterm (I. Law & Politics) Exam
With Complete Solutions
Jerome Frank Quote - answer "The law serves as a father substitute--it satisfies the
craving which people possess for authority and certainty in an indeterminate world."
Politics is bound by law... - answer - Primacy of legal norms and instruments; legal
norms are prioritized (e.g. if the PM wants to pass/change a law, he has to do it
according to the law).
- Constitutional Supremacy --> even if the PM uses the statutory process to change the
law, it will be struck down if it is found unconstitutional.
Law is shaped by politics (and occurs in a political context)... - answer - Statutory law -->
political representatives take control of law; statutes always trump common law.
- Politics of judicial appointments --> becoming a judge requires you to go through a
process; makes them political actors; thus, judicial-decision making can be political.
What is Law? Hart's Defeatism - answer "Nothing concise enough to be recognized as a
definition could provide a satisfactory answer."
What is Law? Definition - James - answer "...set of rules which are generally obeyed and
enforced..."
What is Law? Definition - Oxford Dictionary - answer "...a rule established in a
community by authority and custom..."
What is Law? Definition - Waddams - answer "...society's attempt to resolve the most
basic of human tensions, that between the needs of the person as an individual, and her
needs as a member of the community."
What is Law? Definition - Bohnnan - answer "...one of the devices by means of which
men can reconcile their actual activities and behaviour with the ideal principles they
have come to accept, and in a way which it is not too painful or revolting to their
sensibilities."
What is Law? Definition - Blackstone - answer law "is a rule; not a transient sudden
order from a superior to or concerning a particular person; but something permanent,
uniform and universal."
What is Law? Definition - Austin - answer "Law is command of the sovereign (following
Hobbes's Leviathan)."
Legal Positivism - answer - About separating law from normative consideration; law is
, black and white.
- Problem of the "wicked legal system" --> works if the sovereign is a good leader,
however if the leader is corrupt this perspective leads to an oppressed society with an
unjust legal system.
Legal Positivism's Four Elements - answer 1) Body of rules
2) enacted and applied by public officials,
3) formulated by legitimate means,
4) and backed by state force
Social Contract Theory - answer Law is a contract where we give up some of our
freedom in order to live in a safe and stable society.
Natural Law - answer - If it is so unjust it should not be considered law.
- "Higher law" above man's law, not a problem if there is a homogentisic community that
follows only one faith.
- Connotations with religion.
- Now more associated with FAIRNESS and DUE PROCESS; law must be applied fairly
and within due process.
Natural Law's Two key Procedural Protections: - answer 1) Nemo judex in causa sua -->
no one should be the judge in his own case
2) Audi alteram partem --> listen to the other (hear from both sides in a dispute to give
equal opportunity).
Should law reflect justice? Positivist view, Natural Law view - answer - Positivist --> Not
necessarily; law is independent of morality and consists of enactments of the sovereign
(who may be morally just or not).
- Natural Law --> Yes, since an unjust law is no law at all (lex injusta non est lex).
The Story of Rex (8 ways to fail to make law) - answer - Fuller's response to Hart, who is
a positivist; law has its own internal morality.
- E.g., The Story of Rex and his repeated failures. If Hart was right, then Rex would be
successful in passing his laws, and would not fail, as he did.
1) Failure to achieve rules at all
2) Failure to publicize
With Complete Solutions
Jerome Frank Quote - answer "The law serves as a father substitute--it satisfies the
craving which people possess for authority and certainty in an indeterminate world."
Politics is bound by law... - answer - Primacy of legal norms and instruments; legal
norms are prioritized (e.g. if the PM wants to pass/change a law, he has to do it
according to the law).
- Constitutional Supremacy --> even if the PM uses the statutory process to change the
law, it will be struck down if it is found unconstitutional.
Law is shaped by politics (and occurs in a political context)... - answer - Statutory law -->
political representatives take control of law; statutes always trump common law.
- Politics of judicial appointments --> becoming a judge requires you to go through a
process; makes them political actors; thus, judicial-decision making can be political.
What is Law? Hart's Defeatism - answer "Nothing concise enough to be recognized as a
definition could provide a satisfactory answer."
What is Law? Definition - James - answer "...set of rules which are generally obeyed and
enforced..."
What is Law? Definition - Oxford Dictionary - answer "...a rule established in a
community by authority and custom..."
What is Law? Definition - Waddams - answer "...society's attempt to resolve the most
basic of human tensions, that between the needs of the person as an individual, and her
needs as a member of the community."
What is Law? Definition - Bohnnan - answer "...one of the devices by means of which
men can reconcile their actual activities and behaviour with the ideal principles they
have come to accept, and in a way which it is not too painful or revolting to their
sensibilities."
What is Law? Definition - Blackstone - answer law "is a rule; not a transient sudden
order from a superior to or concerning a particular person; but something permanent,
uniform and universal."
What is Law? Definition - Austin - answer "Law is command of the sovereign (following
Hobbes's Leviathan)."
Legal Positivism - answer - About separating law from normative consideration; law is
, black and white.
- Problem of the "wicked legal system" --> works if the sovereign is a good leader,
however if the leader is corrupt this perspective leads to an oppressed society with an
unjust legal system.
Legal Positivism's Four Elements - answer 1) Body of rules
2) enacted and applied by public officials,
3) formulated by legitimate means,
4) and backed by state force
Social Contract Theory - answer Law is a contract where we give up some of our
freedom in order to live in a safe and stable society.
Natural Law - answer - If it is so unjust it should not be considered law.
- "Higher law" above man's law, not a problem if there is a homogentisic community that
follows only one faith.
- Connotations with religion.
- Now more associated with FAIRNESS and DUE PROCESS; law must be applied fairly
and within due process.
Natural Law's Two key Procedural Protections: - answer 1) Nemo judex in causa sua -->
no one should be the judge in his own case
2) Audi alteram partem --> listen to the other (hear from both sides in a dispute to give
equal opportunity).
Should law reflect justice? Positivist view, Natural Law view - answer - Positivist --> Not
necessarily; law is independent of morality and consists of enactments of the sovereign
(who may be morally just or not).
- Natural Law --> Yes, since an unjust law is no law at all (lex injusta non est lex).
The Story of Rex (8 ways to fail to make law) - answer - Fuller's response to Hart, who is
a positivist; law has its own internal morality.
- E.g., The Story of Rex and his repeated failures. If Hart was right, then Rex would be
successful in passing his laws, and would not fail, as he did.
1) Failure to achieve rules at all
2) Failure to publicize
