TEST 1 review Flashcards
Where does the obligation to obey tribal law come from?
Cultural Tradition
Social Cohesion
Religious or Spiritual Beliefs
Leadership and Authority
Social Expectations
Fear of Sanctions or Exclusion
*elaborate on all
How does the strength of tribal law lie in the fact that it is internalized by members
of tribal societies?
- Personal and Collective Morality
When tribal laws are internalized, they become part of an individual’s sense of right and wrong. Instead of simply following rules because they’re imposed from the outside, people follow them because they believe in them as essential to their identity and the well-being of the community.
- Self-Regulation and Social Harmony
The internalization of tribal law means that individuals don’t need to be constantly monitored or threatened with punishment. The law becomes a self-regulating system where community members feel social pressure to act according to shared values.
-Minimized Need for External Enforcement
- Deep Sense of Identity and Belonging
Why was banishment the worst punishment in tribal law?
- You were nobody
- Outcasted from society(outlawed)
- Loss of status
- Shame for the family… you…
Why have legal anthropologists struggled with the question whether there was “law” in tribal society? (Consider the online additional reading from Leopold Pospíšil.)
Absence of formal institutions: Tribal societies typically didn’t have written codes, formal courts, or professional judges. Law was often a matter of customary practices, rituals, and social consensus, rather than formal codification and enforcement by a central authority.
What is the role of government in tribal law?
In most tribal societies, the governance role is often played by elders, chiefs, or other respected community leaders. These individuals don’t always have the same formalized power as state governments, but they have authority because of their wisdom, experience, and ability to mediate conflicts or enforce social norms. Their role is essential in interpreting and applying tribal laws.
The tribal law is still intact in many societies and arguably provides a “communitar-
ian” concept of law, based on the well-being of the community, which subordinates the rights of the individual to the interests of the family or clan. How is this significant?
The communitarian nature of tribal law—which prioritizes the well-being of the community over the rights of the individual—is significant for several reasons, especially when examining how law and governance function in such societies. Unlike Western legal traditions, where individual rights are often seen as the cornerstone of justice and personal autonomy, tribal law tends to be focused on maintaining social harmony, ensuring collective survival, and protecting the interests of the group (whether that be the family, clan, or the entire tribe).
What is the source of our legal obligations in early legal positivism? What is it exactly that makes a direction or orders a law on Austin’s formulation?
The sovereign!
The sovereign is typically understood as the authority within a society that holds ultimate power to impose commands upon others, and its commands are backed by the threat of sanctions for non-compliance.
So authority + sanctions = order of society
Why does legal positivism often seem to fit modern societies better than the natural law, from a moral perspective? What has changed since the Middle Ages?
Legal positivism often seems to fit modern societies better than natural law from a moral perspective for several key reasons, and much of this is tied to historical shifts in how societies view law, morality, and authority. Here’s a breakdown of why legal positivism aligns more with modern sensibilities and what has changed since the Middle Ages:
Separation of Law and Morality:
- Legal Positivism: In the modern world, particularly in liberal democracies, the separation of law and morality allows for a more flexible, pluralistic approach to governance. Laws can be created, interpreted, and enforced without needing to conform to a particular moral or religious doctrine. As societies became more diverse, with people holding varying moral beliefs, legal positivism allowed for laws to be crafted based on pragmatism, consensus, and the will of the people (or elected representatives), without needing to appeal to a singular, universal moral order.
- Natural Law: Natural law, on the other hand, traditionally posited that laws must be aligned with a higher moral or divine standard, which could often lead to rigid moral codes that don’t accommodate differing beliefs or evolving understandings of justice. In modern societies, this moral absolutism can be seen as restrictive or divisive, especially as secularism and pluralism have become more dominant.
Suppose the public rejects the laws that make the possession of marijuana an offence. Does it matter in Austin’s theory? What is the public’s recourse?
In Austin’s legal positivism, the public’s rejection of a law does not affect its legality. The law is valid as long as it comes from a sovereign authority and is backed by the threat of sanctions. The public’s recourse is to use legal channels to change the law, engage in democratic processes to influence lawmakers, or resort to civil disobedience—which still carries the potential for legal consequences.
Who rules the ruler in Austin’s theory of law? Is there a satisfactory answer to this question?
Sovereign is ultimate authority.
No clear “ruler of the ruler”
In Austin’s theory, the sovereign is not subject to any higher legal authority, and therefore, who rules the ruler? remains an unresolved and somewhat unsatisfactory question. Austin’s framework presents a monistic view of law where the sovereign holds absolute power, and this leaves no legal check on that power. This creates a theoretical vulnerability, especially in modern contexts where there is an expectation that sovereignty should be limited by constitutional principles, democratic mechanisms, and human rights protections.
While Austin’s legal positivism is useful for understanding the mechanics of legal systems, especially in terms of authority and sanctions, it lacks an adequate mechanism for limiting sovereign power or ensuring legitimacy through accountability to the people.
What is a primary rule? What is a secondary rule?
Primary rules:
- basic legal rules
- duties, obligations, requirements
- commands or prescriptions
- e.g “do not steal”, do not exceed speed limit”
Secondary rules:
- rules of recognition(ultimate rule)
- rules of change(ex. constitutional amendment)
- rules of adjucation(court system)
change or affect behaviour vs structure
Why does Hart reject formalism?
Hart rejects formalism because it fails to account for the complexity, flexibility, and social nature of legal systems. He acknowledges that rules in legal systems are often open-ended and require interpretation in light of social practices, moral values, and evolving circumstances. Legal systems cannot function effectively if they reduce all legal decisions to the mechanical application of rules.
Why does Hart believe that Austin’s formulation of legal positivism is deficient?
too simplistic
- doesn’t tale into account complexness of law
Hart rejects Austin’s formulation of legal positivism because it is overly rigid, simplistic, and mechanistic. Austin’s emphasis on the sovereign as the sole source of law and his focus on the coercive aspects of law (commands backed by sanctions) overlook the complexity of modern legal systems, which involve a variety of rules (both primary and secondary), interpretation, judicial discretion, and social practices. Hart’s theory incorporates a more dynamic and flexible understanding of law, emphasizing the importance of secondary rules, the internal acceptance of law, and the role of judges in interpreting and applying the law.
How does Hart respond to the legal realists?
Hart’s response to the legal realists is essentially one of acknowledgment and distinction:
He acknowledges the important insights the realists provided, especially about judicial discretion and the non-mechanical nature of judicial decision-making.
However, Hart rejects the realists’ view that legal rules are insignificant or that law is merely a product of judicial will. For Hart, even though judges exercise discretion in difficult cases, legal systems still rely on a framework of rules, which provides stability, structure, and continuity. Judges may interpret and apply these rules, but they are not free to ignore the legal system’s overall structure and norms.
Hart’s model thus offers a balanced view: he agrees with the realists about the flexibility of law and the role of discretion, but he insists that law remains fundamentally a system of rules, which makes it distinct from the more subjectivist or relativistic position the realists often advocated.
