Topic 5 Flashcards
What happens when laws are determined far away from small communities.
Communities are disempowered, and individuals have little incentive to bond in order to change the world where they live. 2 factors to the problem:
- law developed and applied in a rarified profession (law)
- Laws are remote from people they affect.
Legal Positivism
the belief that law is as it is, not how it should be.
Positivists
believe that if something is claimed to be law, it is a question of fact.
Non-positivists
believe that whether a law is valid depends on if it is morally or ethically justifiable as a law.
What are the 4 principles of the rule of law
- Equal accountability under the law
- Clarity, openness, and consistency
Due process: fairness; timeless and accessibility in enactment, administration, and enforcement of law.
Indicators of the rule of law
- Constraints on government power
- Absence of corruption
- Open government, transparency
- Protection of fundamental rights
- Maintenance of order and security
Regulatory enforcement - Civil, criminal, and informal justice
What is an example of Legal Positivism and Natural Law
An example is the Nazi lady that denounced her husband for speaking bad of the nazis.
According to Rahman, what was the probelm with neo-lochnerism.
The problem is deeper than income inequality, it is domination - the accumulation of unchecked, arbitrary economic political power over others.
What is proposed as reformist legal response to neo-Lochnerism in the U.S Supreme Court.
Legal Realism
Examples of Neo-Lochnerism in Robert Court
- Upholding mandatory arbitration clauses
- Limiting class actions
- Citizen United – market view of political choice
- Dismantling of the Voting Rights Act
- Not applying laws to businesses with religious objections
- “The underlying problem in each of these cases is a rejection of any notion of unequal power that may need some kind of systemic redress coupled with an overly optimistic faith in the ability of market systems to operate neutrally and fairly to all individuals”.
2 elements of the critique of market capitalism
- Critique of economic domination (unequal power)
- Critique of suppression of democratic agency of ordinary citizens.
Natural Law
whether law is valid is valid is in part a moral question; valid law is grounded in an overarching moral order.
Legal Positivism
That’s too murky - whose morality? It’s clearer to understand law as being what the sovereign lawmaker says it is, as a social fact, period. Morality is irrelevant.
Legal Realism
Positivism makes law seem clearer than it is. In reality, judges are outcome-driven and have biases, and “dead letter law” isn’t even applied. Acknowledges the reality and the potential for reform.
Movement Law
Law not only reflects social factors in reality, but law can be linked to social movements to account for those social realities in seeking to tranform law so as to advance social movement goals. Harness and became part of the reality.
