What is Law? Flashcards
what are interpretative difficulties?
misunderstandings of words and vocabulary through ambiguity
what 3 ways can ‘law’ be understood?
law as rules
law as morality
law as politics
how is ‘law as rules’ linked to the state?
created, enforced and supported by the state
whose theory supports the notion of law as rules for control within the state?
Hobbes’ Levithan
giving up of natural rights and freedoms to be governed by the laws of the state for order
who articulates the key different between law rules and moral rules?
where?
John Austin
The Province of Jurisprudence Determined
how does J. Austin define positive law?
'’moral law?
positive law is the set of commands issued by the sovereign, backed up by threats and directed at obedient individuals
moral law is ‘improper’ law and is not a human contract
how does J.Austin describe the authority of law?
‘a law, which actually exists, is law, though we happen to dislike it’
(the fact that the law exists means that it has governing authority - the merits are not relevant)
how does HLA Hart describe law as rules?
law is a set of social rules which create obligations
power conferring and duty imposing rules
ex//
rules that govern behaviour - criminal law
rules about rules - constitutional law
what debate considered the link between law and morality?
what did it consider?
Hart and Fuller debate 1958
whether law could be valid if immoral
what did Hart believe about the law and morality debate?
'’Fuller?
Hart
immoral law is still valid
legal validity is based on social fact and not moral investigation
Fuller
laws have to pass a moral benchmark to be valid
‘nothing more shocking in saying that a dictatorship, which clothes itself with a tinsel of legal form, can so far depart from the morality of order’
what school of thought follows the idea of law as politics?
what did they look at?
American Legal Realism
looking at the law through how it is both practiced and enforced
effect of political context on the application of the law
what is an example of how the law can be seen as political?
Supreme Court in America in relation to abortion rights
how does Griffiths argue that the role of the judges can be political?
why?
‘judges are part of the machinery of authority within the state and such cannot avoid the making of political decisions’
‘not the stuff of which reformers are made, still less radicals’
unrepresentative judiciary
review of cases dealt in a highly conservative manner
what is the argument of socio-legal studies?
the law applies equally to all in the books, but in actions it is not the same
what does S. E. Merry argue the courts are engaged in?
where does she write this?
‘cultural domination’
under-representation, silencing and disproportionate provision of justice
all based on race, ethnicity, religion and gender
Getting Justice and Getting Even
