author beliefs Flashcards
for in class essay #1
1
Q
hart
A
- legal positivism, believes law and morality are separate concepts
- legal systems are based on a system of rules
- primary rules (which impose duties) and secondary rules (which provide the means for creating, modifying, and interpreting primary rules)
-criticizes the “command theory” of law proposed by Austin, arguing that law is more than just orders backed by threats. - Instead, he sees law as a system of rules accepted by society.
- acknowledges that law may include moral principles, but he insists that such inclusion is contingent, not necessary
2
Q
fuller
A
- opposes Hart’s strict separation of law and morality, arguing that law inherently contains an “internal morality” that consists of principles like consistency, fairness, and coherence
- believes that laws must meet certain moral standards to be legitimate and - believes legal interpretation should account for the broader objectives of justice rather than just the literal meaning of words.
- critiques positivism for being too rigid and for failing to account for the role of morality in legal decision-making, particularly in extreme situations like Nazi Germany.
3
Q
austin
A
- legal positivist
- defines law as commands issued by a sovereign and backed by sanctions
- insists that laws are distinct from morality—what law “is” and what law “ought to be” are separate
- Unlike Hart, Austin does not see judicial interpretation as a key part of the legal system.
- instead, he believes that laws are valid simply because they come from a recognized authority.
4
Q
dworkin
A
- challenges Hart, arguing that law is not just a system of rules but also includes principles that guide judicial decisions
- introduces the interpretive model of adjudication, where judges do not simply apply legal rules but interpret them based on moral and political principles
- argues that in hard cases, judges should not act as legislators but should seek the best interpretation of the law that aligns with justice and fairness
- argues that law has an internal logic that judges must follow, which makes their decisions not arbitrary but rather necessary implications of legal principles
5
Q
fuller’s 8 principles
A
GPPPCCCS
prospectivity
generality
clarity
congruence
consistency
stability
possibility of compliance
publicity
