Legal theory Flashcards
What is legal theory?
The abstract and general questions about the nature and validity of law which helps to resolve and clarify doubts
What is the case of the grudge informer and all details?
Wife claimed husband was critical of hitler because she wanted him arrested as she was having an affair.
German CA questioning validity of Nazi law
Wife prosecuted for causing husband’s loss of liberty
her actions immoral and court didn’t invalidate nazi law
Which 2 people gave opinions about the Grudge informer case?
- HLA Hart
2. Lon L Fuller
HLA Harts opinion of the grudge informer case? 3
Court should not have found wife guilty
Nazi law is valid
if the court felt offended they should have created a new law to ban that provision.
Lon L Fuller’s opinion of the grudge informer case? 3
Court were correct in finding her guilty
Nazi law was not valid
it did not comply with the 8 criteria of inner morality of law
What is formalism? 4
Judges should decide cases by using uncontroversial principles
extreme way of looking at positivism
Gapless and closed system
Doesn’t consider morality
Jeremy Bentham founded?
Legal positivism
Legislation’s goals? 4 JB
- Happiness
- Subsistence and abundance
- Security , protects honor, status and property
- Reduce inequalities
HLA Hart primary rules?
Primary rules construct legal obligations and consequences when they are disobeyed. E.g murder
HLA Hart secondary rules? 3
Secondary rules confer the power to change, modify, or enforce primary (and secondary) rules.
Secondary rules combat 3 major issues that primary rules can’t–(1) uncertainty, (2) efficiency, and (3) static quality.
Each kind of secondary rule addresses a separate one of those three issues.
2 tenents? Hart
Unjust law is not law – Saint Augustine
Obligation to obey the law is a moral duty
Should unjust laws be obeyed? 2
Not if they don’t conform to the 8 standards
Once law conforms to the constitution or the common law then it is valid and should be obeyed
Lon Fuller, about the 8 standards of desideration? 5
Universality- applies to everybody
Need to know what you are being accused of
Have to be able to obey- consistent
No obligation to obey laws that don’t conform to the 8 standards
No need to obey
Jeremy Bentham views on common law and natural rights? 4
Abolish common law
Objected to natural rights:
Without law you cannot have any rights at all
Should be legal rights not natural rights
How is law shaped?
Shaped by factors external to how it is made in a legislator or common law. It is shaped by economic, social, cultural and political factors
Dialectic relationship/method ? 2 KM
A method of writing: begin with a thesis then refer to antithesis (counterargument) then simplifying the two to create something new.
THESIS↔ANTITHESIS
↕
SYNTHESIS
What is open texture? CLS
Gives the interpreter the discretion to read whatever meaning they want (methods of interpretation). No certainty.
What is Categorisation and reification of law? 3
Stereotyping people
One is never, or almost never, a person.
Law has the ability to make what is real, unreal. It reduces us to abstract things. Human beings are put into categories and become things which appear as if they are real and need protecting. It loses the humanity – no longer about the human being.
3 CLS methods of deconstructing law?
- trashing
- De-legitimation
- Dereification
What is trashing? 2
undermining the implicit powers structures
Expose the implicit power structures entailed in law or legal institutions, address power by calling it to account
What is de-legitimation? 2
challenging exclusive socio-economic systems
Expose the disproportionate economic power and relationships, challenge them
What is Dereification? 2
Find the hidden meaning of law; there may be a progressive counter rule that alters the meaning of a legal concept
revealing progressive dimensions of law
4 types of feminism?
liberal feminism
cultural feminism
Radical feminism
post modern feminism
Which legal theorists supported legal positivism?
- Bentham
- Austin
- HLA Hart
