Lesson 1

Question 1

What does John Austin believe about laws

Answer 1

• law is a command by a sovereign
• soverign is the ultimate source of the law
• morality is separate from law

Question 2

What is Hart’s rules and his view on laws

Answer 2

• primary ( regulate behavior ) and secondary laws ( define how laws are created, changed, and applied)
• Rule of recognition, social rule that determines what is law
• all laws are not commands but rules

Question 3

For Hart, what is something that grants powers such as laws

Answer 3

• wills, contracts, grant powers and arent laws

Question 4

For Kelsen, what is law ?

Answer 4

• A hierarchical system of norms
• separated from morality
• Legal norms gain validity through higher norms
• top is the basic norm
• seperate from morality to remain pure

Question 5

For Radbruch, what is law?

Answer 5

• unjust laws lose their validity
• extreme injustice is not law (nazi’s era)

Question 6

Fuller, law is

Answer 6

• an inner morality that determines its legitimacy
• legal system must be clear, consistent, and fair
• law without morlaity is not a true legal system

Question 7

For Finnis, law

Answer 7

• is grounded in objective moral principles
• legal sysems should promote human flourishing
• seven basic goods
• law has to serve these goods to be legitimate

Question 8

Dworkin, law is

Answer 8

• included rules and principles
• rejects hart’s positivism: legal reasoning involves moral principles, not just rules
• fairness, justice

Question 9

how are legal positivist?

Answer 9

Austin, Hart and Kelsen

Question 10

who is Anti-positivist?

Answer 10

Radburch, fuller, finnis, and Dworkin

Question 11

What is legal positivism?

Answer 11

is a theory that law is created by convention and is not based on morality or divine law

Question 12

what motivates legal positivism?

Answer 12

that a law is considered valid simply because it was created by a recognized authority and social facts, regardless of whether it is considered morally good or bad

Question 13

what is different about Kelsen?

Answer 13

Believes in separating law as a distinct discipline, Hume’s law “is-ought gap” end with ought being with ought

Question 14

Why does kelsen’s view contrdict hart and Austin

Answer 14

because facts are its not oughts

Question 15

What are Dworkin’s criticisms of Hart?

Answer 15

1. Hart’s account doesn’t match our practices; judges always apply the law and never run out.
2. People already have laws before judges say anything

Question 16

what does hart say about law’s?

Answer 16

law sometimes runs out, so judges have to rely on morality
- judges make new law