Final Exam Flashcards
What is Legal Positivism?
This is an approach to jurisprudence that rejects assumptions made within the Natural Law Theory. Legal positivists reject NLT mainly on the grounds that law must be defined along normative propositions.
What is the Natural Law Theory?
The Natural Law Theory is an approach to jurisprudence that argues law is grounded within reason and that objective normative propositions are rationally discovered without the need for divine revelation.
What is a normative claim?
This concerns the evaluation of one’s actions, practices, or character traits. Essentially, a normative claim of judgement is one that judges upon what something ought to be instead of what things presently are. Certain values such as being “good” and “virtuous” are usually associated with normative propositions.
What is the difference between Prescriptive and Descriptive Propositions?
Prescriptive Propositions: These are statements that evaluate and then encourage particular actions or practices. Descriptive Propositions: These are statements that purely describe, in a neutral tone, facts about the world.
What is the “Overlap Thesis” Who supports this theory?
The Overlap Thesis: This thesis states that there must be a connection between law and morality, in that any law that violates moral norms is not true law. This idea is supported by Natural Law Theorists.
What is the Separation Thesis? Who supports this theory?
The Separation Thesis: This thesis argues that legal theorists should keep morality and law separate from one another when analyzing legal concepts. Legal Positivists state that law should be judged upon purely empirical/non-judgemental terms and that jurisprudence should not be determining whether a law is moral or not.
Who created the “Command Theory of Law”?
John Austin
According to John Austin, what 3 general features does law have?
- It is a rule.
- It is made by a human being in a position of authority.
- Its purpose is to guide other human beings
What two classes of law does John Austin recognize?
- Laws posited by God to his human creation: these are sometimes called “laws of nature” but Austin finds this term misleading. We should just call this “Divine Law” instead.
- Laws posited but humans to other humans: such laws come under the umbrella term of “Positive Law”, (i.e. the aggregate of rules established by political superiors) and it is what Jurisprudence is mainly concerned with.
What distinctions does Austin make between Positive Morality and Positive Law?
Positive Morality: the collection of man-made rules and ordinary opinion that governs how individuals and nations should conduct themselves.
Positive Law: the collection of:
Commands laid down or posited
These commands are made by political superiours of an independent political community
These commands are made to subordinates within that community
They are reinforced by the threat of sanctions
And ultimately these commands impose a duty of compliance
How does John Austin define what a command is?
A command for Austin is a wish or desire that can be backed up by either a threat of punishment or to protect someone from harm. If the latter is not credible, then the command can be easily disregarded.
Laws Generate a Duty of Obedience
What happens when a command is validly issued?
If a command is legitimately carried out, this creates an obligation of obedience or a duty to obey within the person who is receiving the command.
How do you get people to follow a command according to John Austin? How does he responds to ideas of rewarding those that follow the law?
Sanctions are the punishment for not following a command. These sanctions do not have to be inherently violent, they just have to put the subject at a disadvantage (such as a fine). Sanctions can also serve as rewards to push people to follow the law, which was pushed forward as a concept by John Locke and Jeremy Bentham. Austin rejects this train of thought, stating that it would be linguistically confusing to command someone toward a reward.
Who can validly issue a command?
A law is a command made by someone who is superior. For Austin, this superiority stems from power. This power is based upon might, like how a father is superior to a child or how God is superior to humans.
What is the Criterion of Sovereignty?
Sovereignty: this is the power to make laws and force their compliance invested in a person or persons who are supreme in an independent political society. It is distinguished from other types of superiority on the following grounds: The majority of the given society is in the habit of obedience to the sovereign whom they recognize as the sovereign. The sovereign themselves is not in obedience to any human superior.
How does John Austin respond to William Blackstone’s beliefs regarding Divine Law?
According to Blackstone, God’s laws are always superior and that one should always try and follow divine law no matter the cost, even break human law. The reasoning behind this is that it is better to go to prison than to go to hell. Austin responds to this by stating that human laws are in no way binding, as no matter what, you will be punished for violating a law. This social fact, Austin argues, means that human laws do have a binding obligatory force. However, Austin still acknowledges that one probably should not obey a human law that conflicts with divine law (strictly speaking). Furthermore, human legislators should ideally make human laws that are consistent with God’s moral laws. But we cannot know God’s Will with one hundred percent accuracy. However, leaving the individual with the initiative to determine this would lead to anarchy.
What idea/theory did H.L.A Hart defend?
He defended the Separation Thesis even after the Holocaust.
What are the main two criticisms levied against the Separation Thesis?
- It blinds people to the true nature of law and its roots in social life, meaning that it was too abstract and focused too heavily on the linguistic analysis of legal terms that it ignored the fact that the true nature of law is that it is a social fact.
- It weakens resistance to a state of tyranny (like what happened with the Nazis).
What does Jeremey Bentham insist upon the Separation Thesis?
It is easier to see why a law is bad if you keep morality distinct so that it can be easier to reform laws and so that law and morality do not collapse into one single entity.
What are two possible dangers of associating law with morality?
- People might deduce that it is acceptable to make their own personal morals into law.
- Law comes to supplant morality and becomes the only standard of human conduct (meaning it would become impossible to reform laws).
What are the three features of the Utilitarian Tradition of Jurisprudence?
- A defence of the Separation Thesis
- A defence of the notion that the analysis of legal concepts is vital to understanding the nature of law as a social and historical fact.
- A defence of the claim that law is essentially a type of command.
How does Hart view the Command Theory of Law? How does he respond to critics of the Utilitarian Tradition in Jurisprudence?
Hart does admit that CTL is an inadequate and overly simplistic way of understanding the essence of law, as the legal system is much wider than a system of commands. Any statute that is commanded by an autonomous sovereign and backed up by the threat of punishment is a law that generates an obligation of obedience on part of his subjects. Therefore, Hart does object to the CTL, mainly because with the theory, the law is little else than an instrument for coercion (much like how a robber may say “Your money or your life”. Hart stresses that these three features are distinct, though modern critics seem to think that these are part of some kind of package. By disproving one feature, you do not fully debunk each one.
What are some defects of the Utilitarian Tradition in Jurisprudence?
- Real laws aren’t simply equivalent to the arbitrary will of a monarch or a legislature. This is because leads to change frequently in a democratic nation, democratic societies make laws based on a constitution and the idea that the people are the sovereign defeats to the idea of a single ruler.
- The Command Theory of Law does not capture the nature and function of all legal rules. While it works for basic rules to not commit murder, it does not work well with laws that refer to rights because they facilitate desires.
What are the two reasons why Hart rejects the Command Theory of Law?
- There can exist rights that need not be connected to justice (e.g. rights in games, ceremonies, etc.)
- There can exist rights in a legal system that need not be consistent with morality (e.g. the rights, in some legal systems permit slavery).
How does penumbra refute the Separation Thesis?
These are cases in which the law underspecifies the ruling or there is a certain situation that makes it difficult to administer the law due to the context of the event. Hart states that the judge must base this case on normative grounds, which they will be making law instead of simply interpreting the law. If the judge is now making laws on normative grounds, is he now talking about how laws ought to be?
What is the Problem of Hyper-Evil Laws?
This is based on the laws that Hitler and the Nazis created to legalize the usage of concentration camps and treat certain citizens as second-class due to their race. The main defence the Germans used was that they were just following the law and not actually doing anything illegal when they exterminated people. Many critics would blame legal positivism for these atrocities, stating that if morals were a part of lawmaking then the Holocaust could have been prevented.
How does Hart respond to Hyper-Evil Laws?
Hart’s response to this was that since the law is the law, they do not inherently support tyranny. If there is an evil law, you are still entitled to judge it or disobey it even if it is a formal law. In summary, Hart thinks that you can still claim a rule is a law and still recognize that it is too morally outrageous to obey. This is why it is important to keep law and morality distinct so that there is a clear standard to judge our laws upon.
What is the Overlap Thesis?
Hart admits that there is some overlap between laws and morality. There must be a minimum amount of morality in order to establish laws in the first place, mainly based upon our primitive feelings of pain or hunger. If there was truly no overlap, then the legal system would be useless and there not even be a minimally functioning society.
What is the Nescessary-Contingent relationship in regard to legal systems?
Hart basically states that legal norms are consistent with or overlap with morality because of the contingent fact that human beings are vulnerable to physical harm. Contingent: when an event or proposition or state of affairs can be otherwise than it is. Necessary: when an event, proposition, or state of affairs cannot be otherwise than it is.
How does Natural law and the Natural Law Theory address the Contingent-Nescessary relationship? How does Hart respond to this?
According to natural law, there is a necessary connection between law and morality. According to NTL, a law must necessarily have moral content for it to be valid. Hart strongly disagrees with this notion, as the scope of rules that do overlap with morality is limited to those that make social life possible.
How does Aristotle view Voluntary Action within his greater philosophical framework?
Someone who has been trained from a young age to act according to certain virtues is bound to repeat them throughout their life. Moral virtues are concerned with actions and emotions, such as the virtue of courage leading toward brave actions. We provide praise or condemnation for actions if they are voluntary, but we are absolved of either if the action is involuntary.
How does Aristotle define compulsion in the context of an involuntary action? What are mixed actions?
For Aristotle, an external physical agent must be the one forcing the action. Psychological compulsions such as addictions are not the same. Some actions are mixed, in which we do them anyway because of some other greater pressure such as from a greater evil. Certain scenarios in which you have two choices and are forced to choose fall into this category, as you still have the voluntary action of which choice to choose, but you are forced into choosing between the two.
What two types of Ignorance does Aristotle identify?
Two types of ignorance, acting in ignorance and acting from ignorance. One of these two types of ignorance makes the action exculpatory, while the other does not.
How does Aristotle identify which type of ignorance is exculpatory using the Practical Syllogism?
Aristotle understands humans according to the practical syllogism, which is a deductive argument that consists of 3 propositions, a major premise, a minor premise, and a conclusion that logically follows from the previous premises. When ignorance is attached to the major premise, we are held accountable for our actions. When ignorance is attached to the minor premise, we are not held accountable for our actions. If we are ignorant of the universal, we have poor moral principles, which for Aristotle reflects the moral character we have.
What are the two criteria for a Voluntary Action?
- The Moving cause is within the agent (it arises out of internal states like beliefs, desires, or emotions).
- The agent is aware of the particulars or circumstances of the action.
Today we think that compulsive desires like addictions are exculpatory, but Aristotle disagrees.
What is Mens Rea?
Mens rea (“a guilty mind”): This refers to the mental state of the criminal (as in, to the intention to commit a crime).
