FSAL chapter 1 and 2 Flashcards

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1
Q

functions of the law

A

1.​ Setting pre-existing, impartial rues based on criteria that
can be used to judge and settle conflicts.
2. protecting Rights and Freedoms of the Individual
3.​ Facilitating Change
4.​ Protecting society by serving as a framework for
defining orderly conduct
5. Provides Mechanism to legitimize actions by the state
by enforcing accountable administrative action.
6. Providing institutions and procedures to settle disputes.
7. Protecting and Preserving the Legal System.

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2
Q

How a legal system functions

A
  1. lawmaking
  2. law administration
  3. interpretation and ajudication
  4. enforcement
  5. legal profession
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3
Q

factors that determine the effectiveness of the law

A

1.Public Awareness and Acceptance of the Law
2. Enforcement of the law
3​. Clarity in Drafting the Law
4. Consistency in law
5.Changes and Stability

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4
Q

what is natural law

A
  1. Law is made up of universal and eternal norms that have their authority n human reason as opposed to the will of the state.
  2. There are unchanging principles of law that define what is right, just and good and these principal should govern our actions.
  3. accessible to everyone across time and space
  4. used to criticize human rights violations
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5
Q

what is positive law

A

PL theorists say that the written law issued by a sovereign state is the source of all legitimate law.
·​ ​The morality of the laws does not matter.

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6
Q

what was the legal system under apartheid?

A
  1. positive
  2. ​Parliamentary supremacy based on an invalid notion of democracy.
  3. Discriminatory laws could be enforced by the courts usually using positivism as a justification
  4. law issued to maintain the regime
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7
Q

what are the key ideas of legal positivism

A
  1. Laws are human commands
    2.No necessary connection between law and morals
    3.Correct decisions are made by reasoning through existing legal rules alone
  2. Moral judgments can’t be established by rational argument, evidence and proof while
    statements of fact can
    5.The law that is should be separated from the law that one thinks ought to be
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8
Q

Bentham

A

law is based on the will of the sovereign and should be made to according to the principle of utility.

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9
Q

John Austin

A

law is a command by the sovereign and backed up by sanction.

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10
Q

Hans Kelsen

A

legal system is a hierarchy of law grounded in a hypothetical “highest norm called the
“Grundnorm”

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11
Q

Wacks on Grundnorm

A
  1. Enforceable through force or coercion
  2. ​Logical presumption of society’s legal awareness
  3. ​Helps give validity to a constitution and all norms in the systems
  4. ​Enable lawyers to interpret all valid legal norms.
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12
Q

HLA Hart

A
  1. A legal system can be valid without conforming to basic ethical standards
    2.Can’t expect people to obey unjust law, but it is nevertheless law
    3.minimum standards: protect property, life , equality
    4.Sanctions must be used against those who want the benefits of an orderly society but don’t
    want to play their part
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13
Q

key ideas of marxist theory of law

A
  1. ​ ​Law can’t be separated from the political
  2. ​Law and state are closely connected
  3. ​Law gives effect to prevailing economic relations
  4. ​Law always is potentially coercive
    5.​ ​Content and procedures of laws directly or indirectly serve the interests of the dominant
    class
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14
Q

legal formalism

A

1.​Looks at the way in which judges come to their decisions.
2. ​Law should limit judges with regard to the interpretation of legal texts
·3. Judges should be loyal to legal texts as they are but not what they should be.

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15
Q

Feminist Legal Theory

A
  1. ​Law traditionally been used to suppress women due to the male dominance of all spheres of society – but particularly here its law making function.
  2. ​Change the status of woman by changing the law.
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16
Q

Legal Realism

A

​1. Takes a realistic view of how judges decide cases.
2. Judges respond to facts of a particular case as opposed to general legal rules.
3. ​How a judge responds to the facts is influenced by a wide number of factors and the outcome is not as
much a fact about the law as it is about the judge and his thought processes

17
Q

are law and justice the same thing

A

NO

  1. ​Unjust and immoral laws don’t achieve justice
  2. ​Justice should be dispensed impartially
  3. ​All persons should be treated alike before the law
  4. ​Justice is achieved where the poor and weak are protected by the law
  5. Justice is achieved through fair government and fair judges
  6. Laws must be interpreted to achieve fairness and therefore justice.
18
Q

what is the law

A

Law is an ideological construct as it reflects political interests
Law has state authority to support it (using sanctions)
More the law aligns with morality – the more effective it is
Law stipulates rights and duties to guide/regulate conduct​Legitimacy of the law - about society accepting it