2. Chapter V - Law and Justice

Question 1

Natural Law

Answer 1

• Law is an intrinsic part of human nature
• Universal and independent of state/authority
• Ex: Thomas Aquinas saw law as a natural order in human nature that preserved the common good

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Question 2

Positive Law (Legal Positivism)

Answer 2

• Law consisting on positive norms that come from the state or authority
• Focuses on the human normative production and enforcement of the law
• Ex: criticized for being immoral and saying that we follow rules because we fear them when in reality we follow them because we think they are fair.
• Ex: Thomas Hobbes’ belief that the law is created and enforced via the legislature and judiciary respectively. Not on an inherent justice but on an authority.

Question 3

Dilemma of Unjust Laws

Answer 3

• Ethical dilemma when a law or legal principle is deemed unjust
• Questions whether it should still be applied and respected
• Ex: Debate over whether those laws that violate human rights, like in Nazi Germany, should be considered valid.

Question 4

Hard Cases

Answer 4

• New legal cases that the law does not yet cover
• Require creative interpretation by judges
• Ex: Court cases involving new technology or emerging social and cultural issues.

Question 5

Radbruch’s Formula

Answer 5

• Theory stating that in the debate of natural and positive law, the latter should prevail, except in cases of extreme injustice
• Addresses limits of positive law and the role of justice

Question 6

Imperativism

Answer 6

• Theory, legal rules seen as commands issued by a sovereign (legal positivism and statism)

Question 7

Evolution of Legal Thought

Answer 7

• Initially natural and based on reason.
• Overtime, perspective shifted to law being a creation of legislative and judicative actions