MIDTERM 10/11 Flashcards
What did Cicero think about Natural Law?
That it is unchanging over time and does not differ in different societies
What is Natural Law?
Law of Reason, always valid no matter what humans say
What is Human (positive) Law?
Man made
According to Aquinas is a just law is consistent with the requirements of natural law?
Yes
What will make a law unjust according to Aquinas?
If a law giver hasn’t exceeded authority and laws are imposed on citizens fairly… failure will make a law unjust.
According to Aquinas what is a citizens obligation to an unjust law?
There is no obligation to obey that law. AN UNJUST LAW IS NOT A LAW.
Does MLK believe that “an unjust law is no law at all”?
yes
What does MLK say about just and unjust laws?
that any law that uplifts human personality is JUST and any law that degrades human personality is UNJUST.
What is the Natural law theory?
Natural law theorists believe that human laws are defined by morality, and not by an authority figure. recognizes law and morality as deeply connected. humans are guided by our human nature
Does Austin believe that an unjust law is not a law?
NO
According to Austin what is every law or rule?
a command
According to Austin what makes a command, a command?
if one is able and willing to harm if wish is complied, then it is a command.
Austin: Positive law v. positive morality
everyone should be able to recognize positive law and positive morality can be false… like slavery.
Austin: what is a positivist?
law is a system of power
Austin: Authority= what
power
Austin: Anything you can get away with, really isn’t wrong
yes thats what he believes
Riggs v. Palmer: what would common law say in this case?
That one should not be able to profit off own crime
Natural Law Theory
positive law that conflicts with natural law is invalid
What is positivism according to Austin
that law is a command from political superiours
Legal realism
whatever is actually enforced
Holmes: what does the bad person care about?
the bad person doesn’t care about morality… they only care about what will happen to them
what is Holmes objection to Austin?
that a command that is not enforced is not a law
Holmes: are unwritten rules that are enforced a law?
Yes
Holmes: what is the first fallacy?
that they confuse law with morality. law is filled with moral sounding language (promise, good, duty)
Holmes: what is the second fallacy?
mistakenly believe judicial interpretation is just logical detection against formalism
Holmes: what should judges study?
History and economics
was Hart a positivist?
yes
what is utilitarianism?
right action=most good; maximized happiness
does natural law say an unjust law is valid?
no
does Austins positivism (command theory) say that an unjust law is valid?
yes
does legal realism say that an unjust law is valid?
yes
does harts positivism say that an unjust law is valid?
no
does any of the four different theorist say to obey a serious moral law?
no. none of them deny that morality matters
what does natural law think about authority?
authority does not equal power
what does Austins positivism (command theory) think about authority?
authority does equal power
what does legal realism think about authority?
authority does euqal power
what does harts positivism think about authority?
authority does not equal power
Hart: what are primary rules?
rules for behavior… they’re enforced by social pressure
Hart: what are the defects of a society that only runs on primary rules?
uncertainty, static, and inefficient enforccement
Hart: what are secondary rules?
rules for making rules (rules about rules)
Hart: how would secondary rules help with the defects of the primary rules?
recognition (something that people can agree with and write down)
change
adjudication
what is law to Hart?
law is a union of primary and secondary rules
Hart: why is rule of recognition important?
it determines validity. once you have a way of deciding what rules are official you turn it from custom to law.
What is positivism in law?
It implies that legal rules are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such
