Legal theory

Question 1

Natural Law Theory

Answer 1

Belief that there are unchanging principles of law that exist in “nature” (are part of the natural realm) that define for human beings what is right, just, and good, and ought to govern actions
Principles are natural and are accessible to all people
Principles apply all the time/in all circumstances

Question 2

What happens if human law conflicts with natural principle? (according to natural law theory)

Answer 2

Human law is void, irrelevant, shouldn’t apply

Question 3

Should an immoral law be followed? (according to natural law theory)

Answer 3

No

Question 4

Positivism

Answer 4

Based on the idea that legal systems are created by humans

Law is something which can be validated through facts

Question 5

Are unjust laws still laws? (positivist)

Answer 5

Yes - the law is the law - moral standing is irrelevant and irrational

Question 6

Thoughts of a positivist.

Answer 6

Don’t judge law - state it. General belief that disobedience of evil laws is acceptable if it would promote change for the good

Question 7

Jeremy Bentham (1748-1832)

Answer 7

A law is the general will of the sovereign supported by the thread of punishment or promise of reward
Law requires: Wish, sanction, expression of wish, generality

Question 8

John Austin (1790-1859)

Answer 8

Positivist

Question 9

Hart (1907-1992)

Answer 9

positivist

Question 10

Positivist critiques of natural law theory

Answer 10

irrational
conservative - constrains possibilities of social change
limits human freedom

Question 11

Natural law theory arguments

Answer 11

Laws without a moral basis and weak and possibly harmful
Laws consistent with moral values strengthen morals of society
Prevents arbitrary rule

Question 12

Critical Legal Theory

Answer 12

Questions the law (but doesn’t provide solutions)

Question 13

Questions asked by critical legal theorists

Answer 13

Is the law detached from its social, political, economic, cultural and historical ties or embedded in context?
Is law neutral or reflective of power relations within society?

Question 14

Common views

Answer 14

Law is never objective: all laws serve some interest
Law shaped by power:
Law is part of state’s political framework
Law reflects and reinforces dominant interests: social, economic, cultural, gender
Reflects and protects elite
Bias hidden behind ‘objectivity’ and ‘science’
Reinforces inequalities of power: class, colonialism, patriarchy
Instrumentalism: Law is a tool that is controlled and manipulated by the elite - can be an instrument for oppression
Structuralism: Law is relatively autonomous from the interests of the powerful, but it inevitably operates to support the interests of the rich
Law shapes social consciousness: It makes seem natural and inevitable that which is contingent and potentially changeable.

Question 15

Feminism

Answer 15

Different types: liberal, radical, cultural, post-modern, marxist/socialist
Male dominance embodied in law
Public views influence private realm: the experiences, feelings, and possibilities of women’s personal lives are not just a matter of personal preferences and choices but are limited, moulded, and defined by the broader political and social setting

Question 16

Black letter law

Answer 16

• Takes a literal approach to the interpretation of the words in the law