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01 - Introduction to Law & Legal System > A Theory of Law > Flashcards

A Theory of Law Flashcards

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1
Q

Broader philosophical inquiry into the nature of law itself

A

Theory of Law

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2
Q

What are the fundamental questions in the Theory of Law?

A

What law is?
What’s the purpose of law?
Moral implications of law?

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3
Q

Focuses on the practical aspects of law.
- How laws operate?
- How legal reasoning is arrived at?
- The use of empirical methods in understanding the law

A

Legal Theories

.

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4
Q

Two ways of analyzing the law

A

Non-nonceptual Analysis
Conceptual Analysis

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5
Q

Methods that can be used in non-conceptual analysis of law

A

Theories in Natural Sciences
Theories in Social Sciences

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6
Q

How Conceptual Analysis is conducted?

A

Stipulates a division of the world into categories
* Stipulation is accepted - does social acceptance a basis of law?
* Claim is made about the category
* The claim can be valuated as TRUE or FALSE

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7
Q

One that is part of the essence or nature of the phenomenon

Meaning the concept cannot exist without it (e.g. Water is composed of H20 )

A

ESSENTIAL in conceptual analysis

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8
Q

One that every instance of the phenomenon MUST have

Example: Water is necessary to say that it is raining.

A

NECESSARY in Conceptual Analysis

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9
Q

A condition that a concept cannot exist without it.

A

NECESSARY CONDITION in conceptual analysis

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10
Q

The presence of this condition guarantees the existence of that concept.

Example: A person is alive if he/she is breathing

A

SUFFICIENT CONDITION in conceptual analysis

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11
Q

What are the TWO NATURAL LAW THEORY

A

Traditional Natural Law
Modern Natural Law

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12
Q

Name some Traditional Natural Law Theorist

A

Cicero
Aquinas

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13
Q

Argues for the existence of the higher law.

Elaborates on content and analysis of what should follow from the existence of the higher law.

A

TRADITIONAL LAW

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14
Q

The principles of the natural law are traced not only to moral philosophy or ethics and moral conduct.

  • Political philosophy and jurisprudence (legal system )
  • Political action
  • Adjudication ( )
  • Life of the citizens

For those principles justify the exercise of authority in community.

How we understand ourselves as one people.

Look into the collective experience as the basis of laws.

A

MODERN NATURAL LAW

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15
Q

The legal process of resolving a dispute

A

Adjudication

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16
Q

For NATURAL LAWYERS, what is the basis of law?

A

Morally Valid ( Just )
Morally Invalid ( Wrong )

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17
Q

Finnis’ Valuble Basic Goods

A

Life
Health
Knowledge
Play
Aesthetic experience
Friendship
Practical Reasonableness
Religion

ACRONYM: LAHI KA PARe, FRel

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18
Q

Fuller’s Internal Morality of Law

A

General
Public
Prospective
Clear
Non-Contradictory
Possibility of Compliance -
Constancy
Congruence between Official Action and Declared Rule

RECALL TECHNIQUE:

The general public prospective is clear and non-contradictory.

There is possibility of compliance, constancy and Congruency between Official Action and Declared Rule.

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19
Q

Neither law nor legal systems have any natural or essential connections with morality.

A

Legal Positivism

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20
Q

Who are the LEGAL POSITIVIST

A

Jeremy Benthan
John Austin
HLA Hart
Kelsen
Hobbes

RECALL:

BAHaKHo

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21
Q

The framework of rules, procedures, and institutions used to interpret and enforce laws.

A

Legal System

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22
Q

How can we simplify the COMPLEXITY of a legal system?

A

Primary Rules
Secondary Rules

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23
Q

The rule in Legal Positivism that says that human beings are required to do or abstain from certain actions, whether they like it or not.

Imposed duties
Concern about actions involving physical movement or changes

A

Primary Rules

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24
Q

In Legal Positivism, laws also confers power public or private to create sovereignty.

Human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations

Provide for operations which lead to creation or variation of duties or obligations

A

Secondary Rules

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25
Q

Why can a legal system not rely on Primary Rules only?

A

Uncertainty
Stasis
Inefficiency

RECALL: U-S-I

26
Q

What are the Secondary Rules

By Hart

A

Rule of Recognition
Rule of Change
Rule of Adjudication

RECALL: RCA

27
Q

The Legal Positivism, it is is a collection of standards and requisites that govern the validity of all rules;

Confers power to new rules by validating them.

A rule to be valid is to recognize it as passing all the tests provided by the rule of recognition.

A

Rule of Recognition

28
Q

What resolves uncertainty in the complexity of the legal system?

A

Rule of Recognition

29
Q

What can solve the Stasis issue of the legal system?

A

RULE OF CHANGE

The remedy for the static quality of the regime of primary rules are rules of change

The next best thing is to make sure that the system does not remain at a static quality but instead is dynamic and progressive

Hart emphasizes the “close connection between the rules of change and the rules of recognition.

30
Q

What removes INEFFICIENCY in Legal Positivism

A

Rule of Adjudication

Rules of adjudication were intended to remedy the inefficiency of its diffused social pressure.

Rules of adjudication govern the election and procedure of the judiciary.,identifying the primary rules through the judgments of the courts and these judgments will become a ‘source’ of law.”[24]

31
Q

What resolves inefficiency in the legal system?

A

Rules of Adjudication

32
Q

Who said this:

True law is RIGHT REASON in agreement with nature.

It is of universal application, ● unchanging and everlasting.

It is a sin to try
to alter this law nor is it allowable to attempt to repeal any part of it, and it is IMPOSSIBLE TO ABOLISH it entirely.

A

Marcus Tullius Cicero [106 BC - 43 BC] (REPUBLIC)

33
Q

Who said this?

Every human law has just so much of the nature of law, as it derived from the nature of law.

But if in any point it deflects from the law of nature, it is no longer a law but a PERVERSION OF LAW.

Positive laws that are just
Have the power of binding in conscience.

A just law is one that is consistent with natural law, that is, it is

A

St. Thomas Aquinas [1225-1274]

34
Q

Who said this?

Laws include not just the norms found in treaties, customs, constitution, statutes, and cases, but also MORAL PRINCIPLES that provide the best justification for the norms found there.

Things justified by moral principles are socially constructed but the justifications (arguments) themselves are not

Legal claims are interpretative ● judgments and therefore combine backward-and-forward-looking
elements.

A

Ronald Dworkin
Law’s Empire (1986)

35
Q

Determine the validity by reference to a MORAL AUTHORITY that exists beyond the law itself .

Law is not separate from morality, but it is subordinate to morality

A

Natural Law Theory

36
Q

Who is the father of Legal Positivism

A

John Austin

37
Q

Who said this?

While laws were posited, there were presuppositions to laws that made them valid.

There is a hierarchy of norms beginning from the BASIC NORM, where all other norms are related to each other

A

Hans Kelsen
Pure Theory of Law (1967)

38
Q

Who said this?

If you want to know
the law and nothing else, you must look at it as a BAD MAN ,who cares only for the material consequences which such knowledge enables him to predicts, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer concept of conscience.=

A

O.W. Holmes, Jr.

The Bad Man Theory

39
Q

Who said this?

The life of the law has not been logic; it has been experience.

A

Holmes

Legal Realism

40
Q

Who said this?

Law is the HIGHEST REASON implanted in nature.

This is the rule of right and wrong.

The establishment of what is RIGHT from the highest law was born before any law was written for generations, even before a city was established.

A

Cicero

41
Q

Who said this?

Law is nothing else but an ORDINANCE OF REASON for the common good

Made by him who has care of the community, and promulgated.

The rule and measure of human acts is the reason.

Law is embedded in nature & conforms to the logic of nature.
Must regard relationship to happiness since every part must be ordained to the whole

A

Aquinas

42
Q

Who said this?

Law is for the common good

A

Aristotle

43
Q

Who said this?

Every law is a command.

A

John Austin

Legal Positivism

44
Q

What makes law sufficient according to Legal Formalism?

A

Law is self-sufficient or completely self-standing:

  • It is a command
  • Issued by a sovereign
  • With a threat of sanction or punishment
  • That people are generally obedient to
45
Q

Who said this?

Law is not a gunman.

A

Hart

Legal Positivism
( American )

46
Q

Who said this?

Justice being taken away, then what are the kingdoms but great robberies?

A

St. Augustine

47
Q

Who is behind the Pure Theory of Law?

A

Hans Kelsen

48
Q

Which of the following is FALSE:

a. Hart and Bentham are Positivist Theorists:

b. Austin and Hobbes are Positivist Theorists

c. Cicero and Dworkin are Natural Law Theorists

d. Fuller and Aquinas are Natural Theorists

A

c. Cicero and Dworkin are Natural Law Theorists

Dworkin is neither a Natural or Positist.

Legal Interpretivism

49
Q

In Obergefell vs. Hodges (US SC, 2015) the majority decision viewed marriage as:

a. Natural, universal, and unbending

b. Union between man and woman

c. Sacred and exists for procreation

d. Evolving with time

A

d. Evolving with time

50
Q

Oliver Wendell Holmes, Jr., in his <The> said that law is the prophecies of what the courts will do in fact.</The>

For Holmes, law is therefore but a:
a. Scientific process of prediction
b. Systematized prediction
c. System of proposition
d. Science of correct legal processes

A

b. Systematized prediction

51
Q

The Bad Man Theory of Oliver Wendell Holmes, Jr. proposes that:

a. Law makes a man thinks he is bad (a bad man will resist law)

b. Law is what a bad thinks about it (a bad man cares only for the material consequences of law)

c. Law regulates the conduct of a bad man (law is best applied to perverted conduct)

d. Law without reason is bad (reason is embedded in law )

A

b. Law is what a bad thinks about it (a bad man cares only for the material consequences of law)

52
Q

Which of the following legal principles did the majority of the Justices in the Riggs vs. Palmer case use in order to resolve the case even in the absence of an applicable statute?

a. the welfare of the people is the supreme law

b. ignorance of the law excuses no one from
compliance therewith

c. the law may be harsh but it is still the law

d. no one should profit from his own wrongdoing

A

d. no one should profit from his own wrongdoing

53
Q

Traditional Natural Law theorists believe that:

a. law is made for social order
b. law is rationally indeterminate c. law and morality are separable d. law is inherent and universal

A

d. law is inherent and universal

54
Q

The Political and Moral Right Theory of Ronald Dworkin espouses:

a. verba legis
b. textualism
c. verba legis est anima
d. No correct answer is given

A

d. No correct answer is given

55
Q

Most Legal Realists, including Oliver Wendell Holmes, Jr., believe that:

a. the constitution is a living constitution

b. the constitution is to be interpreted in accordance with its original meaning.

c. The constitution is to be interpreted

d. in accordance with the intent of the framers of the constitution.

e. the constitution is “fixed”

A

d. in accordance with the intent of the framers of the constitution.

56
Q

Which of the following best describes “legal formalism.”

a. law is an embodiment of all considerations in law l

b. aw is logic

c. law is a science and observes method

d. All given answers are correct

A

d. All given answers are correct

57
Q

In his The Concept of Law=, H.L.A. Hart argued that law is and must be <posited. What is the justification of his theory?

a. law and morality are separate
b. law does not have to be good
c. justifications in law need human intervention
d. All given answers are correct

A
58
Q

If for Oliver Wendell Holmes, Jr. the life of the law has not been logic but it has been experience=, he meant that:

a. legal rules and reasons figure simply as post hoc rationalizations

b. judges’ prejudices which they share with their fellow men can affect the case

c. intuitions of public policy can affect the judgment of the court

d. All given answers are correct

A

d. All given answers are correct

59
Q

Wendell Holmes, Jr became known for his:

a. Predicable Theory
b. Prediction Theory
c. Predicament Theory d. Predictable Theory

A

b. Prediction Theory

60
Q

Which of the following theories argues/argue that law is <indeterminate=?

a. American Legal Realism and Natural Law Theory

b. Natural Law Theory

c. American Legal Realism

d. Legal Positivism

A

c. American Legal Realism

61
Q

The proposition that true law is right reason in agreement with nature, universal in application, unchanging and everlasting= came from:

a. Lun Fuller
b. Marcus Tullius Cicero
c. John Rawls
d. Ronald Dworkin

A

b. Marcus Tullius Cicero

62
Q

For H. L. A. Hart, the Command Theory of Austin has no basis, for he believes that law consists of:

a. internal morality
b. rules backed by threat of force
c. hierarchy of norms
d. primary rules and secondary rules

A

d. primary rules and secondary rules

01 - Introduction to Law & Legal System (3 decks)

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