What is all about Flashcards
What is the main purpose of the law (Holmes)
to mske prophesies about the decisions of the judge, to add legal certainty in the life
What is the role of Holmsian Judge?
- Law is judge-made. the public force is intrusted to the judges
- has to apply logical reasoning and also social judgement but not only strict logical deduction
- Judges must consider social and policy implications, though this is often underappreciated in practice.
- They apply the law based on precedent and societal context, rather than personal notions of justice or morality- expirience but not logic
What si the role of the lawyers?
By advising clients and resolving disputes, lawyers help ensure that society operates within a predictable and structured legal framework.
What is the role of History according to Holmes?
- It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules.
- On the other hand Holmes also sests the limots fpr the application of teh Hstory, saying that it should inform the present understanding of law, but its focus should be on present-day relevance, not antiquarianism
What ist Holme’s view on the application of the logic in jurispudence?
- critiques legal formalism—the idea that legal reasoning is purely logical and can deduce outcomes from first principles. He argues that law is grounded in human experience and influenced by history, culture, and social forces. Legal principles, while important, are tools rather than absolute guides.
What methods of practical application of jusrisprudence are siggesten by Mr Holmes?
- The most important objective is not only to read but to get to the bottom of the subject-> follow the highest generalization of dogma by the means of jurisprudence
- dicsover from history: how did it come to what it is
- to consider the aims/end that this subject seeks to accomplish
How the law could be discribed (generally)?
- Law is unintelligible
- Numeno sphear
- Contrefactual- escribes hoe things ought to be, but not wthat they are
- has a proprium methofology- comoare interpoerattion
What are the NECESSARY objectives?
- maintain peace
- regulate social relations
- protect rights
What are POSSIBLE objectives of the law?
- execute will of majority
- protect the rights of monirity
How could you explain normative and cognitive expectations?
- The theory was developed by the german sociologist Niklas Luhmann
- NORMATIVE expectations- social norms or values that guide how poople should behave on society->help to save sicaul order and to estimate what is acceptable and what is not. When one fails to meet that expectations stay, but the one is gonna face the consequices
- COGNITIVE expectations-shared knowledge or understanding people have about how the world work->help people predict outcomes and make decisions based on their understanding of reality-> when one fails to meet those they are just changing
Explaine 2 notions of law
- in FORMAL sence (Form is important)- Law is all rules in the correct procedure-imdependant of justice-> contrast to the content (materia) of the law
- in MATERIAL sence (materia Inhalt is importnat)-rules that have a legitimate content-> correct procedure isn’t sufficient =justice Human rights
Name the main charachteristc of Natural law way of thinking
-inherent to human being (from nature secular or divine origins ecclessentical)
-immutable, can be apllied in all societies through the use of reason
-unchangible
-proponents: Kant, Rousseau
Name the charakteristics of the POSITIV law
-man-made law
-needs teh extermal legislation
-can be ammanded in every moment
-limited to the territory and the state
-judges should search for will from legislator
-deals with law as how it given
-proponrnts: Austin, Hart, Kelsen
What types of positivism do you know? Explain them
- positivism of CONVENIANCE-never question the theliology of the law (very lezy people)
- positivism of ABSTINANCE- the idea that refraining from certain activities or indulgences can have constructive, beneficial effects-restrict the tunnel of legal argument
- Positivism of INCLUSION-
-One major proponent is H. L. A. Hart, he is a British positivist
- He distinguishes primary rules and secondary rules, then there is also a rule of recognition
- British legal positivism attempts to find a common denominator for positivism and natural law
What way of thinking about law is applied in the british common law?
- It represents the blend of both:
- NATURAL-notion of precedent and the idea that certain principles (like fairness and justice) should guide juduical decisions
- POSITIVE- The reliance on case law and judicial interpretation reflects an evolving legal framework that adapts to the needs of society
- In essence the common law has changes throgh the cource of the history, but it’s core remained untakt
