Law and Politics Flashcards
What is politics according to Martin Loughlin
It is a result of contests to secure authority over others.
It also evolves within all social groupings.
What is Law according to H.L.A Hart
Intial he believed the definition of law and no satisfactory answer
- It is an instrument of government. (obtained from Hobbes)
- It is a practice that establishes the framework within which political action is taken. (originated from the Greeks)
- It is a tradition or custom. It is the notion of common law.
What is the relationship between law and politics
It is characterized as one of Reason vs Will, Might vs Right, or Justice vs Power.
Politics is bound by law. Law is also shaped by politics
Describe power in terms of might
This is the ability to use power to produce an intended effect (it is symbolized by the sword) and justice and right (symbolized as the scales)
Justice
It is the exercise of power that is channelled to produce the right consequences
What is Thompson’s description of the relationship between law and politics?
He used a Marxist perspective. He believed law is assimilated for the interest of the ruling class. And law can also check how power is exercised.
What is political power?
The ability to achieve intended effects which can only be achieved through institution and processes, therefore through the medium of law. It is created as a result of the relationship between the state and its citizens.
What is Psuedolaw?
It is a collection of spurious legally incorrect ideas that superficially sound like law, and purport to be real law. It is employed by minorities to justify their actions
Two waves of psuedolaw in Canada
Detaxers(2000): They believed people needed to avoid paying tax
Freemen-on-the-Land: They believed the Canadian law only applied to them if they consented to it.
What is the Strawman Theory
It purports that people have two halves;
1) A physical “flesh and blood” element that is outside the authority of governments, police and the courts.
2) The “Strawman”, an immaterial legal aspect that is subject to “conventional” authority
Martin Loughlin and Emmanuel Kant concept on politics
Loughlin: “politics and law can coexist, only when it is acknowledged that law is an intrinsic part of the engagement in politics”
Kant: “politics must bend the knee before right”
According to Loughlin, what is political power
It is the ability to achieve intended effect.
It is a form of decision-making power that can only be expressed through institutions and processes.
Political power is relational, it is a product of a relationship between the state and its citizens
What is Formalism (Weber)
This concept purports the idea that law is autonomous, it is non-human, therefore it follows rationality and no discretion.
What is Realism
This is the opposite of formalism. Human decision is a key factor.
Definition of Law in Boyd
“set of rules which are generally obeyed and enforced” (Professor Philip James)
“a rule established in a community by authority and customs” (OED)
“society’s attempt to resolve the most basic of human tensions, that between the needs of the person as an individual, and her needs as a member of a community” (Professor Waddams)
“Law is one of the devices by means of which men can reconcile their actual activities and behaviour with the ideal principles that they have come to accept, and can do it in a way that is not too painful or revolting to their sensibilities” (Paul Bohannan)
“Law is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform and universal” (Blackstone)
According to Hobbes “Law is a command of the sovereign”
