Chapter 1 - Natural Law/Marxism/Legal Positivism

Question 1

Classical scholars argued there is a necessary connection between law and ___________

Answer 1

Morality

Question 2

What is a valid law?

Answer 2

Laws “valid” in this sense are laws one is morally bound to obey. Moral obligation requires moral justification, so the actual validity of law depends on its moral justification.

Question 3

Key themes of natural law in Sophocles play

Answer 3

Antiogne

Question 4

2 Greco-Roman Ideas

Answer 4

Plato + Aristotle

Question 5

Human’s natural purpose is _________

Answer 5

Happiness

Question 6

Christian Revisions of Natural Law pt. 1

Answer 6

St. Augustine (354-430)
State rulers who do not subscribe to clear notions of justice (Christian moral values) are no different that criminal gangs (robber-bands)
Human laws must mirror a Christian God’s eternal laws of nature
Lex iniusta non est lex – ‘an unjust law is no law’
Lex aeterna (eternal law) and Lex temporalis (human law)
Human law expresses eternal law and expunges sin from social life
Ideal society is pastoral, characterized by innocence, no slaves, and no sin
The impure state of societies (that reject eternal law) are sinful, impure or ‘fallen’
Human law must buttress eternal law to eliminate sin through force and coercion if necessary to ensure people meet their obligations and duties to behave according to a God-given nature

Question 7

Christian Revisions of Natural Law pt. 2

Answer 7

St. Thomas Aquinas (1225-74)
A much later version of Christian thinking less concerned with eliminating sin through human law
God embeds moral values in our souls and grants us the capacity to reason
Laws derive their authority from eternal natural law
Law secures a common good (happiness)
Governments that corrupt the law have no moral authority and these laws do not have to be obeyed (Antigone)

Question 8

Did Apartheid era laws, written and designed by the Nationalist government in South Africa, require obedience? If so, why? If not, why not?

Answer 8

Purpose of the law was to prohibit marriage between Europeans and non-Europeans by prohibiting the marriages from becoming ‘solemnized’
Based on visual appearance (skin colour) and social interaction ‘habitually consults’ with Europeans as a European (whatever that means!)
Bill operationalized racism (differential treatment based on skin colour) and passed (using all the regular rituals and formalities) by an all-white Parliament into law
Law repealed in 1990

Question 9

Lon Fuller (1902 – 1978)

Answer 9

Internal Morality of Law
Law as Craft
Procedural Morality

Question 10

Morally Defensible Law-Making

Answer 10

1. Generality
2. Promulgation
   3.Non-retroactivity
   4.Clarity
   5.Non-contradiction
   6.Constancy
   7.Possibility of Compliance
   8.Congruence

Question 11

John Finnis (1940- )

Answer 11

Law and Flourishing Human Life
Morality is revealed through practical reasoning unique to human beings
Must reflect basic values of human existence
Law must promote ‘basic goods’ in the world
Justice secures the common good
The common good can be achieved through coercion and regulation

Question 12

Justice is the outcome ______________

Answer 12

of morally defensible procedures of law

Question 13

Law is a product of

Answer 13

successful practical reasoning

Question 14

Justice fosters (1)

Answer 14

the common good in community

Question 15

Justice concerns (2)

Answer 15

1. an individual’s interactions and duties to others
2. proper lawmaking procedures

Question 16

Law is an entity sui generis whose role is to ________________

Answer 16

1. shape
2. order human interactions in a morally proscribed and prescriptive fashion (they tell us what we ‘ought’ to do)

Question 17

Within the Marxist schools of thought, law is undeniably seen as a __________ ______

Answer 17

Repressive force

Question 18

Marxism is highly critical of

Answer 18

Liberalism

Question 19

Marxism says Law is __________

Answer 19

Idealogical

Question 20

Who does Marxism say the Law represses?

Answer 20

Working class

Question 21

Marxism is based on the segregation of which classes?

Answer 21

Capitalists and working class

Question 22

Marxism believes society is what?

Answer 22

Stratified and Oppressive

Question 23

Marxism believes liberalism “constructed” what?

Answer 23

Justice

Question 24

How do Marxists look at “Morality” ?

Answer 24

Morality (or human nature) are ideological concepts designed to oppress

Question 25

List 7 Major Frankfurt School Theorists:

Answer 25

1.Max Horkheimer Traditional and Critical Theory (1937), Elipse of Reason (1947)
2.Theodor W. Adorno (with Max Horkeimer) Dialectic of Enlightenment (1947), Negative Dialectics (1966)
3.Herbert Marcuse Eros and Civilization (1955), One-Dimensional Man (1955) “Repressive Tolerance” (1969)
4.Walter Benjamin “Critique of Violence” (1921), ”The Work of Art in the Age of Mechanical Reproduction” (1935)
5.Eric Fromm Escape from Freedom (1941), Man for Himself (1947), The Sane Society (1955), The Art of Loving (1956)
6.Otto Kirchheimer Punishment and Social Structure (1939) (with George Rusche)
7.Jurgen Habermas The Theory of Communicative Action (1981)

Question 26

What are the Main Concepts of Frankfurt School Critical Theorists?

Answer 26

Dominant ideology, cultural hegemony/ideological hegemony), coercion, counter-hegemony, critical theory, tolerance/intolerance, modernity

Question 27

What is the purpose of Radical Feminism?

Answer 27

to analyze patriarchal culture and the institutions that support that culture

Question 28

Legal Realism is

Answer 28

jurisprudence should emulate the methods of natural science, that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world