What is law - lec 1 Flashcards
Law
rules, the breach of which have legal consequences
What are the 2 predominant theories of law in the Western legal traditions?
Positivism & natural law theory
Natural law theory
Moral code that exists in nature and is universal.
It is an ethical theory claiming that humans are born w/a certain moral compass that guides behaviours e.g. murder = bad.
(moral law)
Natural law is often linked with…
Divine law - laws of nature and reflected in a deity
Legal positivism
law only exists when it is ‘posited’ - declared by an authority with the power to do so (e.g. legislature).
(declared law).
Social contract theories
contractual arrangement to explain why governments came about, what citizens and governments explicitly and implicitly agree to for civil society to exist, and what each of their eights and responsibilities are under this contract.
Hobbes social contract theory
based on idea that human beings give up their freedoms to avoid living in the state of nature.
How does Hobbes see people in the ‘state of nature’
people are brutal, lonely fearful of violent killings, poor no one to uphold laws.
People giving up natural rights/freedoms to establish an order to uphold the law leads to…
the ‘Kings rule’ (Leviathan’s rule) - social contract is an agreement among people, to the Leviathan.
Locke & social contract
the obligation to obey civil government under the social contract was conditional upon the protection of the natural rights of each person, including the right to private property.
Social contract agreement between the people & king didn’t extinguish natural rights (Life, liberty & property).
Montesquieu & separation of powers
believed that the concentration of power in any single person or group of people as a threat to liberty.
thus separation of powers executive, legislative, judicial – as best form of government, with each branch exercises checks and balances on the others. He opposed absolute rule which unite the powers in one entity/person.
Spirit of the laws
(L’esprit de lois) Montesquieu’s best known work in which he reflects on the influence of climate on society, the separation of political powers, and the need for checks on a powerful executive office.
Rousseau - Social contract & general will
the people should form a social contract, relinquishing their rights to ‘the whole people’ rather than to a King – the people were to be the sovereign.
Law would be made through direct democracy (no separation of powers, and people are obliged to obey the law because it is the product of the ‘general will;.
