Positivism

Question 1

Who wrote Leviathan?

Answer 1

Thomas Hobbes

Question 2

How did Hobbes describe the state of nature

Answer 2

“a solitary, poor, nasty, brutish and short life”

Question 3

What did Hobbes propose

Answer 3

Absolute (but not arbitrary) power

Question 4

What’s the backdrop to Jeremy Bentham’s work?

Answer 4

Blackstone’s complacency, prevailing theory of natural law

Question 5

Sum up Bentham’s approach

Answer 5

Positivist, utilitarian, law = a fictitious social construct, first look at IS, then look at OUGHT

Question 6

What was Bentham’s methodology

Answer 6

Strict separation of law as it is from as it ought to be

Question 7

Bentham’s definition of law

Answer 7

A more accommodating version of Austins: command of the sovereign, backed by sanctions

Question 8

What did Bentham think motivated people to obey the law

Answer 8

fear of sanction

Question 9

What did Bentham propose?

Answer 9

Codification of ALL law

Question 10

What did Bentham think of the common law

Answer 10

It was autocratic

Question 11

What’s the backdrop to Austin’s work?

Answer 11

Bentham’s pupil, took his theory and developed it (misunderstood elements of it?)

Question 12

Sum up Austin’s approach

Answer 12

Utilitarianism. Believed in the divine law as part of positive law. Divine law requires rationality, rationality leads us to utilitarianism

Question 13

Austin’s definition of law

Answer 13

Command of the sovereign backed by sanctions (the command theory)

Question 14

Problem’s with Austin’s theory

Answer 14

The command of the sovereign doesn’t explain democracy - the sovereign is not in the habit of obedience to anyone else. In a democracy the ruler is answerable to the ruled. Constitutional law does not fit with the command theory - Austin thought costitutional law = only positive moral obligations. Clearly not.

Question 15

Backdrop to Hart’s theory

Answer 15

Command theory had been discredited, sought to rehabilitate positivism

Question 16

Sum up Hart’s approach

Answer 16

Utilitarianism, “soft” positivist

Question 17

Hart’s methodology

Answer 17

Keep is and ought/morality separate BUT look to the internal aspect of rules - why they are obeyed

Question 18

What did Hart think motivated people to obey the law

Answer 18

The rule of recognition

Question 19

Where did Hart stand on morality and the law

Answer 19

There is a minimum content of natural law. You see it in all legal systems, because of human frailty, all societies will need certain laws to protect their interests - property, life etc

Question 20

Problems with Hart’s theory

Answer 20

The rule of recognition is what legal “insiders” think / decide. BUT Hart never really defined what a legal insider is

Question 21

Backdrop to Kelsen’s theory

Answer 21

Kant, Hume, transcendental idealism

Question 22

Sum up Kelsen’s approach

Answer 22

The pure theory, utilitarianism, law addressed to judges, grundnorm

Question 23

Kelsen’s methodology

Answer 23

Seperate law from fact AND morals - doubly pure. Can’t get an ought from an is.

Question 24

What did Kelsen think motivated people to obey the law

Answer 24

The grundnorm - trace back the reasons for oughts to prior oughts, at the base is the grundnorm, the master ought - different in different systems. Is still an ought, so no getting an ought from an is. Meant no theoretical need for a sovereign

Question 25

Problems with Kelsen’s theory

Answer 25

Totrally theoretical, doesn’t explain legal systems as they are. Grundnorm hard to pin down. If the grundnorm depends on the moral attitudes of people, does taht mean that the grundnorm is derived from an IS?