Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Legal theory > Lecture 6 > Flashcards

Lecture 6 Flashcards

1
Q

Professor Hart def of law

A

Hart defined law as a system of rules, a union of primary and secondary rules,

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

positivist theorists distinguish law and morality as

A

law is what is and morality is what ought to be

recognise separation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

natural law theorists

A

higher principle behind the legal system.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Fuller is

A

natural law theorist

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

critique of legal positivism

A

austinian law of command is inadequate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

2nd critqiue of legal positivism

A

problem of penumbra

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Problem of penumbra

A

occasionally when attempting to determine law, the established meaning is inadequate or obsolote, so judges must interpret

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what does problem of penumbra say

A

even positivist judges are what law must mean by what it ought to mean

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

problem of penumbra solution to Hart

A

What ought to be is not seen as a moral sense, does not fall outside law

It is understood within a rational legal framework

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Third critique

A

internally consistent morally bad law

e.g. german nazi regime.

So you need higher principle behind the legal regime otherwise no way to condemn these morally bad regimes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Hart defends…

A

minimum content theory of natural law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Minimum content theory of natural law

A

to overcome morally bad law, hart allows certain influence of morality within the legal system

Only so much moral infiltration to maintain internal consistency of legal system

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Inclusionary positivism and exclusionary positvisim

Exclusionary positivism

A

Inclusionary positivism: allows certain level of morality into legal system - hart shows some steps

Exclusionary positvism: no morality

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Fuller is unclear for Hart

A

the distinction between what is and ought to be is really about morality.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Hart says when deciding what ought to be

A

from within the legal system framework. Legal framework is freestanding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Fuller says what ought to be according to natural law

A

is about preserving fidelity to law itself - beyond the law. Step back from legal system. Legal system ought to have fidelity

This doesn’t come out of law itself. something you appeal to make law consistent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What does Fuller say about the way legal positivists conceive morality

A

That legal positivists accuse natural law theorists being concerned with preserving precious moral principles

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Content of morality for fuller

A

Fidelity to law is internal to law is actually that moral source external to law that informs legal system.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Fuller’s response to hart

distinction

external morality

A

Moral suggestion that one must follow the law.

Some people conflate law and morality.

e.g. legal must be moral, be moral to be

To think natural law theorists are speaking about law and morality, this is external morality

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Fuller’s response to hart

distinction

Internal morality

A

It is not external morality, rather internal morality - conscience

believes legal positivists like Hart recognise this internal morality “principles of natural justice” “justice in the administration of laws”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Positivists accept

A

principles of natural justice like

Cannot be judge and defendant.

Both parties must be heard

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Because positivists accepts principles of morality

A

Fuler argues this is a way for morality to enter into legal positivism

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Problem of the penumbra

what does a particular word mean?

A

You go from what is to what ought to be

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When should one be punished accoding to natural law theorists

A

violate basic principles of human conscience e.g. woman of nazi reported her husband for criticising hitler

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

How does Hart address problems of command of law?

A

Distinguishes primary and secondary rule

Primary rule fit into Austinian sense

Secondary rule = operation of primary rule e.g. rules of adjudication, rules of recognition that binds that binds public officials

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Morally bad law, though valid

A

do not have to be obeyed. obedience is a choice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Fuller describes 8 principles of inner morality of law

A
  1. Existent, not ad hoc (cannot make up in process already be there)
  2. Promulgated
  3. Prospective not retrospective
  4. Clear and comprehensive (make sense in itself and broader legal system)
  5. various aspects must be consistent e.g. fam law consistent with crim
  6. possible to be obeyed
  7. constant or relatively long lasting
  8. applied and administred as stated
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

To sum, for fuller

A

law must serve a purpose. Legal system points to a higher purpose which is to achieve social order by subjecting system of law to moral scrutiny (conscience; intenral morality)

Failure to comply with principles could make certain laws invalid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Fuller seems to claim that

A

Hart’s minimum content of morality in law is common meeting ground

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Natural law theory

A

laws are pre-existing. role of human to discover this

rules and standards are derived from facts about our nature and our world; rules we follow are derived from natural laws

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Greek natural law theorists

Christian natural law theorists

A

Laws already there, humans cannot create it

Created by God.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

critique of positive law

A

how does sovereign decide to pass on law if not guided by morality

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What positivism does not do

A

distinguish between good and bad, only answers validity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Natural theorists argue that there is no rule governing law making

Hart says

A

The rule that governs law making is socially accepted

but what if there are protests etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

In contrast to natural law theorists, legal positivists assert that

A

laws are merely a compendium of rules designed by a sovereign (usually the state) for the regulation of society. It is NOT, they suggest, a universal moral code to which we must submit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

, laws retain their validity

A

irrespective of their perceived (im)morality, so long as it is properly made (pedigree) by the recognised law-making authority.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

People do not obey the law because

A

People do not obey the law because they feel morally inclined to do so, rather because they respect the legitimacy of the law-making body and fear that the state’s coercive forces (police, prosecutors, etc.) will punish them if they do not.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Problems raised by legal theorists

A

Must we obey all laws simply because the state tells us to? What if the law calls for behaviour that we consider immoral? How do we reconcile our legal duty with our moral preferences?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Problems hart had with Austinian theory of law

A
  • erroneous assumption that all legal rules make commands or impose sanctions. includes powers and privileges e.g. right to free speech

there are laws that confer powers and are not backed by sanctions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Law is based on acceptance not punishment for disobedience.

Two types of laws according to hart

primary rules

A

citizens are bound by rules, not because state will punish if disobedient, they accept that it is a sensible way of regulating. Right thing for them and others. accept their duty to obey the law

  • impose obligations. regulate behaviour directly by telling us what we ought and ought not to do
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Law is based on acceptance not punishment for disobedience.

Two types of laws according to hart

Secondary law

A

confer power rather than impose duties

  • rules of adjudcation, rules of change and rules of recogntion: acceptance of law by society
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Law and morality

A

moral and legal rules may overlap. But at the same time, legal rules may not have any moral basis

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

For hart, legality does not stem from

A

morality, stems from social practice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Critique of morality by Hart when a judge

A
  • resorts to morality to issue a ruling, the content of law becomes arbitrary
  • Subjectivity of morality. Conflicting morals. Whose morality is the judge to apply? their own, parties, government?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Relvance of the Hart and Fuller debate

A

The debate as to whether law should be mutually exclusive date has not ceased and is still debated today

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Some of the most recognised and influential natural law theorists

A

including Fuller, Aristotle, Plato and St. Thomas Aquinas argued that law is legitimate only if it promotes the common good i.e. legality corresponds with what is morally right and just

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

The antithesis to natural law theory is the legal school of thought known as legal positism. Legal positivists such as

A

H.L.A Hart and Thomas Hobbes argue that law is only legitimate if it has been enacted through the proper channels by someone with absolute power. Content of law is irrelevant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

What did Hart advocate

A

In 1961, the father of legal positivsim, H.L.A Hart, he advocated for a separation between law and morality. Clear distinction between what law is and what it ought to be

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Legal positivisim

when does law cease to be law

A

Cease to be law when it is invalid, when it is repealed,

Not when it receives moral criticisms

50
Q

Hart

use of terms such as rights and duties

A

Doesn’t have to do with morality, do not implicate human behaviour as good or bad

51
Q

Firstly to understand hart’s perspective legal theory and philosophy

A

we must first understand his disatisfaction of John Austin’s command theory, find it inadequate

52
Q

Hart likened Austin’s theory to

A

Role of gunman at the bank who forces us to obey. Obedience to law is different

53
Q

Hart demonstrated clear distinction between

A

What law is and whether a law is just or moral

54
Q

Fuller (Natural Law theorist) maintains

A

To call the Nazi system ‘legal’ and to call its rules laws’ was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.

55
Q

Hart and Fuller agree that

A

immoral and unjust legal systems are unlikely to be stable and long-lived. Lacking morality and justice, cannot command the allegiance of the people and must depend upon repression. When the repressive regime falls, its system falls with it.

56
Q

grudge informer

A

to cover events where one person reported another for trivial crimes, which nevertheless carried the death penalty (for exampled speaking against the Fuhrer or the government), to settle feuds or to get revenge, but effectively using the state machinery to try to commit murder.

57
Q

grudge informer facts

A
  • German woman was prosecuted for offence of illegally depriving her husband’s liberty in 1949 by German Court

In 1945, she denounced her husband to the authorities in accordance with the Nazi laws for deorogatory remarks about Hitler. This was a death penalty. She had no legal oblgiation to denounce him. Husband found guilty and sentenced to death

58
Q

Nazi laws according to fuller

A

laws were used as an instrument to uphold tyrannical regime

59
Q

When is law invalid according to Fuller

A

law is subject to internal morality which consists of 8 principles.

in passing a law, it cannot transgress any of those 8 principles

60
Q
A
61
Q

grudge informer

defence

A

she had acted in accordance with Nazi laws

62
Q

grudge informer

Court found

A
  • The Nazi laws were “contrary to the sound conscience and sense of justice of all decent human being”
63
Q

grudge informer

Hart’s response

A

shows the triumph of natural law.

64
Q

When did Fuller publish his response

A

in 1958

65
Q

natural theorists believe that law

A

should be moral itself + contain rules to prohibit immoral behaviour

66
Q

Why have decisions that have decided based on morality been controversial

A

Morality is a private, individual choice.

67
Q

Why do we obey law according to Hart?

A

Not sanctions, but because we accept it. We believe it is necesary to maintain social order in society. Great social pressure on primary rules

convenient way of organising society?

68
Q

societies possess secondary rules

rule of recognition

A

overcome uncertainty under primary rules regime alone

  • A rule is a (valid) law if it is created in a certain way by a certain body consistently with certain standards, according to the terms of the legal system’s rules of recognition (public and constitutional law).
  • basis for legal validity
  • distinguis legal rules from other rules

all primary rules flow from rule of recognition

69
Q

societies possess secondary rules also b/c

Static

A

secondary rules of change overcome the static nature of primary rule

  • Enable the effective creation, amendment, and repeal of laws where appropriate.
  • Includes public and private power-conferring rules.
  • confer legal power on persons, thus enabling them to
70
Q

societies possess secondary rules also b/c

Inefficient

A

simple society with only primary rules would be inefficient when there’s disputes on whether rule is broken

  • constitute courts and other law-applying organs and regulate their activities
  • addresses what happens when rules are broken, who, the procedure
  • Such rules may also regulate sanctions for breach of primary rules. (rules of enforcement/sanction)
71
Q

Focus on legal positivism is

A

law as a social fact, not based on natural or divine law

72
Q

Methodology

nIn inquiring into the question he engages in analytical (semantic) and sociological jurisprudence .

why is it jurisprudence

A

clarifies the general framework of legal thought and practice rather than the criticism of law or legal policy.

73
Q

The classical positivist model holds that a legal system comprises:

A
  • Some person or body of persons,
  • Issuing general orders,
  • Backed by threats/sanctions,
  • Which are generally/habitually obeyed,
  • It must be generally believed that these threats are likely to be implemented in the event of disobedience (fear of sanction),
  • This person or body must be internally supreme and externally independent (ie sovereign).
74
Q

Hart’s critique of Austin

-nature of sovereignty

A

fails to explain durability of law in transition and persistence

The continuity of the authority to make law possessed by a succession of different sovereigns for whom there is no habit of obedience at the time of their accession;

nThere appear to be rules of succession that transcend any given sovereign;

75
Q

one of hart’s critique of Austin

A

Power-conferring rules are not orders backed by threats.

76
Q

Critique of Austin

Succession of Law-making Powers

A
  • The continuity of the authority to make law possessed by a succession of different sovereigns for whom there is no habit of obedience at the time of their accession;
  • There appear to be rules of succession that transcend any given sovereign
77
Q

Critique of Austin

Continuity of law

A

Laws can outlive their makers and those who have habitually obeyed them

Hart suggests that people today do not have a habit of obedience to lawmakers from hundreds of years.

The best explanation of continuity, Hart thinks, is an accepted constitutional rule conferring authority on the laws made by past, present, and future legislator

78
Q

Austin critique

Legal limits on law-making

A

Under Austin theory, sovereign has unlimited law making power

79
Q

Austin critique

Legal limits on law-making

A

Under Austin theory, sovereign has unlimited law making power

80
Q
A
81
Q

Critique of Austin

The normativity (internal aspect) of legal obligation

A

internal - Rule as understood and used by a member of the society as a guide to their conduct.

laws as providing reasons for compliance but also seeing laws as something which ought to be obeyed or respected

82
Q

Social Rules

A

nHart elaborates the nature of legal obligation by linking the concept of obligation to the concept of a social rule

83
Q

Conditions of existence of a rule

external

A

Convergence of behaviour (external aspect);

Criticism/sanction for breach of certain behaviour;

84
Q

Conditions of existence of a rule

normativity

A

An element of normativity (internal aspect) in the following of rules and sanctioning of deviation:

the rule is treated as a standard for the behaviour of oneself and others; and

the criticism/sanction is regarded as justified (motivated by good reasons).

85
Q

Rules impose obligations when:

A

Serious social pressure exists to conform:

86
Q

Rules impose obligations when:

second reason

A

nRule is thought important because it is believed to be necessary to the maintenance of social life or some highly prized feature of it.

87
Q

Rules impose obligations when:

A

while benefiting others, conflict with what the person who owes the duty may wish to do (involves sacrifice or renunciation; a conflict between duty and self-interest

88
Q

Rules impose obligations when:

A

the general demand for conformity is insistent, and

the social pressure brought to bear upon those who deviate is great.

89
Q

Hart conceives of law as a

A

system of norms, or as he says, rules. More specifically, he conceives of law as a system of primary duty-imposing rules and secondary rules of change, adjudication and recognition

90
Q

The secondary rules, on the other hand, are

A

The secondary rules, on the other hand, r used to identify, and to create, change, and extinguish primary rules, and to set up legal institutions that apply the primary rules

91
Q
A
92
Q

the command theory leaves out an explanation for how, in modern representative systems

A

the rule-makers who issue the commands find themselves bound by the laws they make.

They are not above the law

93
Q

Hart’s internal perspective to the law.

A

existence of the rule provides an obligation for action

Hart’s sporting competition metaphor for thinking about laws

  • Rules can direct the players to perform or refrain from performing certain actions + give directions to the umpire or score keeper
  • players feel themselves bound by the rules
  • The rules themselves provide a reason to act, not just the fear of punishment as in the command theory.
94
Q

According to Hart’s definitions, primary rules either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law

A

the existence of a primary rule will create an obligation for him or her to behave a certain way

95
Q

Hart believes that rule of recognition is the

rule of recognition tells us how to

A

Hart believes that rule of recognition is the most important. The rule of recognition tells us how to identify a law.

96
Q

most important function of the rule of recognition is

A

allows us to determine the validity of a rule.

Since the rule of recognition is the standard which we use in order to judge the validity of other rules, it cannot itself have a validity test.

Validity is what allows us to determine which rules should be considered laws, and therefore, which rules should create obligations for citizens with an internal perspective to the law

97
Q

According to Hart, validity is not determined by whether

A

obeyed, its morality, or its efficiency, but by whether it fits the criteria set forth by the rule of recognition

98
Q

Shortcoming of Hart’s theory

A

once a rule is established according to the rule of recognition, whether by the legislature or by judicial precedent, it becomes part of the legal pedigree and there is little further uncertainty about its meaning or validity.

99
Q

Hart points out that his theory enables the identification of the law

Dworkin

A

Hart points out that his theory enables the identification of the law based on a relatively straight forward application of a rule of recognition.

Dworkin’s theory on the other hand, requires a complex moral calculation and interpretation to identify even the simplest rule as a rule of law

100
Q

focusing only on the commands and actions of a sovereign in imposing sanctions, the command theorists have ignored the internal aspect which characterises all law.

distinction by hart between two aspects of law

A

Hart explains there is a distinction between the two aspects of law, ‘to be obliged’ thus to act in a certain way because of some threat or by force, such as when an armed man orders a person to hand over money, and

‘to be under an obligation’ thus to feel a sense of obligation to obey the law i.e. act in a certain way without some external factors such as threat or sanctio

the command theories try to explain the law only in terms of the former, therefor they are inadequate, because the law has both an external and an internal fashion to induce compliance.

101
Q

The problem in Kelsen’s theory, is that the law directs officials to punish those who don’t comply with the rules instead of

A

providing guidance for those who want to live according and under their obligations.

102
Q

the internal point of view’ is actually the

A

practical attitude of rule-acceptance

103
Q

Hart the ‘the internal point of view’ is actually the practical attitude of rule-acceptance. It happens when

A

people accept or endorse a convergent pattern of behaviour as a standard of conduct towards a social rule.

104
Q

According to Hart, if someone accepts the rules

A

have taken the internal point of view. In reverse, if someone does not accept the rules, either because they accept the bad man point of view, or because they are just observing, they don’t take a practical attitude at all, it is just the external point of view.

105
Q

A crucial difference from a social habit and a social rule is that

A

hat habit lack criticism from others in a group when the convergent behaviour is deviated from.

106
Q

The secondary rules fall into three categories which remedy what

A

Hart portrays as three “weaknesses” of primitive law

107
Q

Primitive systems also are very

A

slow to change and adapt their laws.

Developed or evolved systems have rules of change which counter this inflexibility.

  • They make it explicit how the law can be changed. These are legislative procedural rules
108
Q

According to Hart, rules are conceived and spoken of as imposing obligations when

A

the general demand for conformity is insistent, and the social pressure brought to bear upon those who deviate, or threaten to deviate, is great.

109
Q

The internal aspect. Rules are viewed as

A

standards governing behaviour, and therefore, deviation is a reason for criticism

For Hart, concept of rules encapsulates not only convergence of behaviour (the external viewpoint), but also the convergence of attitudes.

110
Q

Using the internal viewpoint, people within the legal system

A

judge, evaluate and criticise their conduct and that of their peers.

111
Q

Having developed this concept of the internal aspect of rules, Hart

A

art now ascribes to it its place in a legal system. Law is a union of primary and secondary rules

112
Q

Hart argues that it is a sufficient condition that the citizenry, which is subject to the primary rules

A

need only take an external viewpoint towards primary rules.

113
Q

The rule of recognition itself

A

an neither be valid nor invalid. The proof of its existene is in the fact of its acceptance.

114
Q

There are two ways of looking at rules: the external point of view and the internal point of view

The external point of view

A

. The external point of view merely analyses the convergence of habit and behaviour.

The internal point of view looks at rules as standards governing behaviour, and endorses them.

115
Q

. For a legal system to exist, it is a sufficient condition

A

that citizens take an external point of view towards primary rules; and a necessary condition that officials take the internal point of view towards secondary rules

116
Q

social habits characterised by

A

convergence of behaviour

117
Q

Normative quality of rules

A

difference between acceptance of rules and habitual obedience

118
Q

being obliged

having an obligatoin

A

acting or refraining b/c of fear of punishment

being requrired to do or forbear from doing something based on authoratitive set or norms

119
Q
A
120
Q
A

Legal theory (20 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions