Midterm

Question 0

What does hart mean by open texture?

Answer 0

When communicating standards of behavior at some point where their application is in question prove inter-determinate

When regulations cannot be fully defined or interpreted

Question 1

What are the most important aspects of justice?

Answer 1

1. A requirement that all be treated equal

2. A varying criterion on how to determine when cases are alike or different

Question 2

What are the main problems in primitive legal systems and how are they resolved in more developed legal systems?

Page 92-96

Answer 2

1. Uncertainty
2. Static character of rules
3. Inefficiency

Rules of regulation, rules of change, secondary rules

Question 3

What are the minimum necessary features of a legal system?

Answer 3

1. Laws that are valid must be generally obeyed

2. Must be accepted as common public standard

Question 4

Does the distinction between primary and secondary rules adequately describe legal systems?

Answer 4

Yes

“If we consider what has resulted from combination of primary rules of obligation and secondary rules of regulation……it is plain we have the heart of a legal system”

Question 5

How does hart understand obligation* and how does his account relate to internal aspect of rules?

Answer 5

Internal POV is the view of those who do not record and predict behavior conforming to rules, but use the rules as standards for the appraisal of their own and others behavior

Question 6

What is the difference between being obliged and being obligated?

Answer 6

Being obliged/forced- physiological state, you think.

Obligation/duty- don’t think, doesn’t require physiological conditions or standards of right/wrong

Question 7

Why is the difference between being obliged and being obligated important?

Answer 7

AUSTIN answers question of whether he had obligation to do something is defined as in the chance or likelihood he will see punishment. HART believes that in individual cases the statement that he has an obligation under s rule and the prediction he will suffer for disobedience may diverge.

Question 8

What is legal validity and *what is its relationship with the rule of recognition? *

Answer 8

Legal validity- to say that a rule is valid means that it passes all the tests provided by the rule of recognition and satisfies its criteria

Question 9

What is the rule of the recognition in harts account? *

Answer 9

Main function is to identify whether another rule is part of the legal system or not. Rules of recognition are not always laws, can be viewed from internal or external statements

Question 10

Primary rules vs secondary rules

Answer 10

Primary - human beings are required to do or abstain from certain actions, impose duties. Actions involving physical movement or changes.

Secondary- introduce new rules of primary type, extinguish or modify old ones. Determine their incidence or control their operations.

Question 11

What is the difference between a rule and a habit*?

Answer 11

RULES- Regarded as legitimate by most of society and are thought to obligate

HABITS- rules of thumb, not enough to constitute the existence of a rule

Question 12

What does hart mean by internal aspect of rules ?

Answer 12

He means that they are recognized by society. Internal is the prospective of a person who uses these rules as a guide for conduct.

Question 13

What is harts argument against the habit of obedience aspect of austin’s theory

Answer 13

He believes Austin is right but unrealistic as it ignores the acceptance of the normative power of legal system. Doesn’t contain thing like wills, marriage, etc.

Question 14

What are harts most important arguments against the command theory?

Answer 14

1. Generality- laws apply to everyone, gunman just talking to you
2. Endurance- guy asks for money, it’s money at the time. A law can be monthly
3. Habitually obey- sovereign you obey all the time
4. Notion of sovereignty

Question 15

What is the relevance of jurisprudence for law according to Holmes?

Answer 15

If you want to know and understand the law you can’t just read the law, need a set of categories that are clear, and apply them to jurisprudence

Question 16

What is Holmes main recommendation for judges?

Answer 16

Holmes believed that judges should try and bring the good and not interfere and that legislature should rule

Question 17

What are formalism and rule skepticism?

Answer 17

Formalism holds that law is a set of rules that have determinate content. Hart rejects formalism

Rule skepticism holds that rules are so indeterminate that we should be skeptics about rules

Question 18

When and why do courts sometimes become legislators

Answer 18

Location 269

When courts settle unpredicted questions about constitutional rules

Question 19

What explains the character of moral rules

Answer 19

Thought to be of great importance to maintain, they cannot be changed just because someone wants to change them
Moral codes exist to promote the good of societies, morality should make life worthwhile. Morality has a private aspect that regulates the choice of ideal and adherence to it.

Question 20

What is the minimum content of the natural law and what role does it play in harts account

Answer 20

Holds that human beings have laws and morals that promote survival and well being by helping men to associate with one another. In this way natural facts about how human beings can cooperate effectively are tied to moral and legal rules.

Question 21

How does hart understand the difference between moral and legal rules

Answer 21

Laws seem to govern external conduct and morality touches on intentions in a pervasive way that law does not. Moral rules are not subject to deliberate change and are largely enforced by guilt and blame and ostracism rather than force

Question 22

What are harts main questions

Answer 22

What is law? Why does the question persist with so many different answers

What makes law obligatory?

How are law and morality related?

What exactly are laws?

Question 23

Rule of recognition

Answer 23

Arises out of convention among officials whereby they accept the rules criteria as standards that empower and govern their actions as officials

Question 24

Is there a relationship between legal validity and moral validity

Answer 24

There is no one relation but there is some connections. They are connected by:

1. Power and authority
2. The Influence recognized morality has on the law
3. Interpretation of law in terms of morality
4. Criticism of the law in moral terms
5. Principles of legality and justice
6. Legal validity and resistance to law

Question 25

What are the main features of the command theory of law

Answer 25

Command issued by the sovereign backed with the threat of coercion

Question 26

How does Holmes define law

Answer 26

As a prediction of the incidence of the public force through the instrumentality of the courts

Question 27

How is law related to morality for Holmes? How is intention related to law

Answer 27

He thinks they are not closely related. A bad man has as much reason as a good one for wishing to avoid an encounter with the public force.

Question 28

Why does Holmes question the place of logic in law

Answer 28

He believes that the notion that the only force at work in the development of law is a fallacy. He’s worried that some think it can be worked like math