TOPIC 5: WHAT IS LAW? Flashcards
Definition of Law?
Law is a command, which emanates or originates from the sovereign and is capable of being sanctioned.
What are the five perspectives of Law?
- Positivist theory
- Realist Theory
- Sociological theory
- Naturalistic theory
- Critical legal theory
What is Positivist view of law/Positivist realism?
A positive command or a direction by a superior authority (parliament), that is binding upon others and must be obeyed by them.
The legal positivist view is also known as the black letter view of the law, as it focuses only at what the law says.
This is also the view that lawyers usually take – lawyers are concerned about what the law actually says.
What is the Realist view?
A legal realist will look at what the agencies of the State actually do and cause others to do. Realist view is the opposite of positivism, in terms of what is practiced is law, not what is written.
Realists hold that every time a judge makes a decision, his or her discretion determines the issue, so they are particularly interested in how judges use this discretion.
Sociological view?
A social phenomenon. Socially acceptable, and reflects the principles of society as a whole. .Social law, is law that resides in the spirit of the people.
Natural view ?
The expression of certain basic ideals or moral standards that form a universal or natural law. (ie: Human rights, Religious views)
Critical legal view
Law is an institution that is power structured and in maintaining power structures it also maintains power and balances.
A theory that challenges and overturns accepted norms and standards in legal theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of the power relationships of the society.
This theory of law is sometimes a revolutionary movement that challenges and seeks to overturn accepted norms and standards in legal theory and practice.
I.R.A.C METHOD
ISSUE: Questions of law/criminal liability
RULES: Sources of law (Constitutions, legislation, acts)
APPLICATION: Is the marrying of facts to the law
CONCLUSION: The side of the ISSUE with more points prevails, however students should never pass judgement in this area (sie the person should be punished) instead students should give opinions on the possible outcomes of the case.
