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| 1. What is positive law? What sort of shape does it take? What is the common denominator of all positive laws? What role should the judges play in the administration of positive laws, according to Bentham, Austin, and Gray? |
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Definition
1. Positivie law is the command of a sovereign to either conduct or abstain from some action, of which failure to comply, the perpetrator will be punished. It is based on notions of institutional facts, not based on morality. Its shape is the statutes ( cases, laws, etc ) The common denominator of positive law is that its always written down.
bentham- court is a necessary subsystem to apply laws created by legislature
austin- judiciary should have more of an active role in applying law and adjusting laws according to the particular given case
gray- courts are actual legislators, because they're the final arbiters of what the law is when applied to a particular situation; the judges command is the enactment of the law itself
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| 2. The authority of making positive laws is a difficult problem for legal positivism. Explain the nature of this problem by taking the theories of legal authority advocated by a) Bentham b) Austin c) Kelsen and d) Hart. Is any of them satisfactory? Discuss. |
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Definition
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| 2. The authority of making positive laws is a difficult problem for legal positivism. Explain the nature of this problem by taking the theories of legal authority advocated by a) Bentham b) Austin c) Kelsen and d) Hart. Is any of them satisfactory? Discuss. |
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Definition
the difficulty is due to the infinite regression in searching for an authority to issue normative orders.
bentham - assumes the authority is vested in the legislature by the people who elect them
austin - the authority of the sovereign is derived from the being inherently existing outside the law
kelsen - command is binding, not because the commandar has the actual power, but because he is "authorized" to issue commands of binding nature, that authority to issue commands in derived from an authority which is presupposed to be binding ( infinite regression appealing to higher forms of authority)
hart - the fundamental rules are what justify legitimate law making ( another regression of higher forms of authority which cannot find a foundation in positive law)
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| 3. What is natural law, according to a) Cicero and Aquinas, and b) Hobbes? What is the basic difference between natural law and positive law? Does the triad of sovereign-command-sanction apply to natural law? |
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Definition
cicero and aquinas believes law is intuitive, humans naturally understand the difference between right and wrong.
hobbes believes that man initially existed in a state of nature and that men gave up certain rights to coexist peacefully in society.
natural law is an appeal to morality and reason, positive law is based on acts of legislation
No, the triad does not apply because morality and reason are within an individuals capacity and do not need to be issued by a sovereign |
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| 4. Briefly explain Fuller’s theory of procedural natural law. What is its difference from substantive natural law? Why does Fuller regard procedural natural law as better than substantive natural law? Why do his critics consider his natural law as inadequate? |
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Definition
fuller believes laws must be general, prospective, possible to follow, understandable, must not contradict each other, need to be accessible and consistent, and congruence between their promulgation and administration.
difference- substantive natural law is different cuz it uses a test for the validity of law, the congruence of the content of law with substantive principles of morality.
he believes procedural is better because it ensured that laws were fair.
critics believe that his inner morality of law are just practical principles and that they're not all necessarily moral principles. there is more to the connection between law and morality that whats covered by fullers notion of inner morality of law. even using his procedural natural law, evil laws may still be promulgated(nazi example) |
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| 5. What is the relation of natural law to positive law, according to the advocates of natural law and legal positivists? Why are the legal positivists opposed to natural law?’ |
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Definition
legal positivists believe that justice is what the sovereign commands,
they're uncomfortable with natural law because its authority is derived from morality or reason which is a subjective standard.
natural law advocates believe that the law is what is just
relation - they both seek to administer justice, just through different understandings of it. |
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| 6. Explain the distinction between the pedigree test and the content test. Is there any difficulty in applying these two tests to positive law and natural law? |
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Definition
pedigree test - whether a law is indeed an institutional fact ( was it generated through processes of a legal system? ) positive law
content test - whether a law is moral (natural law)
positive lawyers believe that a law must only pass the pedigree test |
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| 7. After WWII, Nazi informers could have been handled by the following legal procedures: a) their trial by natural law b) their trial by the positive law of the new German Republic c) no indictment against the Nazi informers. Some scholars have said that all of these legal procedures would have violated the sense or principle of justice. What kind of sense or principle of justice is presupposed for this claim? Discuss this question by taking on each of these legal procedures. |
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Definition
appealing to natural law would no be just as its an appeal to a subjective standard contradictory to the positive law at the time the informers committed their alleged crimes.
appealing to retroactive positive law would not be just because it would make it illegal and punishable that which was perfectly legal at the time the activity was conducted.
not indicting the nazi informers wouldn't be just because it would have allowed them to have procured the deprivation of others liberties.
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| 8. Explain the distinction between moral obligation and legal obligation. What is the relation between these two obligations, according to legal positivism and the natural law theory? |
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Definition
legal obligation refers to the duty incumbent on us to obey legitimate laws,
whereas moral obligation is our duty to do what is just
natural law - Moral obligation exists in conjunction with legal obligation, but also trumps it. positive law: moral obligation exists but it is not internal to law. ideal our legal system reflects our moral beliefs, but it doesn't necessarily do so. we have no moral obligation to obey the law, rather we have moral obligations to things we voluntarily commit to ( like friendships )
finnis - Law is a seamless web, unique in that when on the books it helps society achieve common good.
raz- we all benefit from the existence of the law and so we all must share in the burden of following it. there is a moral obligation but it is not in the law, i would refrain from murder and rape not because i recognize a moral obligation to obey the law, but for reasons which have nothing to do with the law.this is moral obligation.
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| 9. The concept of justice is ambiguous. It may mean natural justice or legal justice. Explain their difference. Which of them is recognized by legal positivists and natural lawyers? What is the difference between natural justice and natural law? |
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Definition
Natural justice is what is fair by a moral standard, transcending positive law; legal justice is defined by adhering to positive law. Positivists adhere to legal justice, Natural lawyers adhere to natural justice. Difference between natural justice and natural law? Natural justice and natural law are essentially the same. No, Natural justice can be written down, the natural laws from which they are drawn generally can’t. |
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| 10. Explain the difference between moral relativism and moral universalism. What is the relevance of this distinction for the theory of natural law? |
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Definition
moral relativism refers to those things which are not universally agreed to be either right or wrong
moral universalism refers to the distinction between right and wrong of certain things held by everybody. relative morals are a problem for natural lawyers because the standard is subjective, therefore they must appeal to universal morality.
moral universalism- they are intrinsic morals in the sense that it generally holds regardless of place/time
moral relativism- can change relative to place/time
people will still disagree on what is considered for M1 and M2 to be |
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| 11. Explain the distinction between rules and principles, and their relations with each other. Does this distinction obtain in positive law and/or natural law? |
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Definition
rules are bound by consequences if not followed, whereas principles are not. principles are weighted in importance in a sense that allows them to conflict, where as rules cannot conflict. A valid rule alone can decide the outcome of a case, whereas a principle alone cannot decide the outcome of a case.
the distinction obtains in both:
positivism claims rules as the single fundamental test for law and leaves out the roles of principles that influence reasoning, while natural lawyers appeal to principles over rules.
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| 12. Explain the nature of legal formalism in the relation of legal rules and principles and in the domain of legal decisions. Why is the method of logical deduction important for legal formalism? Why is the method of classification (e.g. shoe sizes) important for legal formalism? What is the relation of these two methods in legal formalism? |
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Definition
formalism says that there is a single right answer in a case, its reached by applying all applicable rules and principles to a case to reach the best conclusion. legal rules and principles are the major premise, the facts of a given case would be the minor premise, and legal decisions would be the conclusion.
logical deduction is necessary because legal formalism is inherently a logical system
classification is necessary because laws, like shoe sizes, need to be general to be applicable to most cases and may be tailored to fit better by the judiciary.
relation - is that once a case is classified such that certain rules and principles are applicable, the correct answer can be reached through logical deduction.
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| 13. What is the reason for saying that the method of logical deduction is inadequate and deficient for legal decisions? What is the standard method for overcoming its inadequacy and deficiency? Why do jurists have to be logicians (intellectuals) and mystics, according to Morris Cohen? |
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Definition
because different people may reach different conclusions with the same rules and principles as applicable to the same case (roe v wade) overcome by grouping them into small numbers of classes, attempting to define the characteristics of each type in a way that it most closely adheres to applicable rules and principles
jurists are logicians because the law must be deduced in applicability to a case
mystics are logicians because if an answer cannot be deduced from existing law, a decision still be reached by the jurist according to their innate feeling(sense of justice) of what is the correct decision.
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| 14. Explain the distinction between legal determinacy and legal indeterminacy, by using Roe v. Wade as an example. Which of these two is compatible or incompatible with legal formalism and why? |
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Definition
legal determinacy holds that a single answer may be deduced in any case by applying rules and principles
legal indeterminacy holds that there is no correct answer to a legal dispute that can be deduced by rules or procedures.its compatible with legal formalism because they both think theres a single right answer because they reach the answer by applying rules and principles to reach this one right answer.
example - some believe that the state interest in potential humanlife should have outweighed a womans right to bodily autonomy in roe v wade, but the court held otherwise, the womans right trumped in the first trimester, was weighed heavily against the state in the second trimester, and was trumped by the state in the 3rd trimester. |
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| 15. Many have worried that legal indeterminacy is bound to produce arbitrary legal decisions. To cope with this problem, Dworkin has invented his idea judge Hercules. Explain how he is supposed to handle this problem. He can use not only all the statutes and precedents, but also the concept or sense of justice. Where can he get the latter? Can he do it as a legal positivist or a natural lawyer? Can he overcome legal indeterminacy by his method? Critically evaluate the prospect of his success. |
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Definition
hercules uses the soundest theory of law (legal coherence) to remain a formalist despite incorporating principles..difficulty lies in degree of coherence.
he gets the sense of justice from consistency in fairness by arguments of history or some sense of legal community.
if he goes by statutes and precedents then its a positivist concept,but he if he goes by justice then he goes by natural law point of view.he can do it as both…he cant overcome
a.determinacy - one single answer
b. indeterminacy- multiple answers
c.dworkins theory for hard cases that hercules would apply- coherence theory/rights thesis…consistency of ruling with every other part of legal system(statute,laws)
coherence theory & right thesis
d.sense of justice- if justice is moral then thats the natural lawyers position
e. judge hercules - abstract and concrete principles, consistent in every aspect
f. one way dworkins method does not overcome legal indeterminacy is that he appeals to justice/morality that only a natural lawyer can appeal to
g.dworkin appeals to political morality which can be regarded as a weakness. |
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| 16. There are two ways of justifying legal decisions: logical deduction and legal coherence. Explain these two methods. |
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Definition
legal deduction justifies decisions in that they are propounded as necessary logical conclusions from a set of premises.
legal coherence is suppose to justify laws because decisions fit within an algorithm pertaining to previous established rules and decisions.
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| 17. How to set up a prior case as a precedent is a question of not logic, but of value, according to Felix Cohen. Explain this point by using the levels of generalization concerning precedents and their relevance to any given case. |
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Definition
a- use of precedent always implies a value judgements. similarities between precedent and next decision are important.
b- values conflict with the meaning of statute and the interpretation of a judges ruling that takes into account the values of the case.also the time that happened between the precedent case and the current case, any political changes may have occurred during that time and may affect the case.
c- judges will disagree and say whether a precedent stands.not because of logic differences, but because of different values they have.judges are human beings too and not aware of their own prejudices.
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| 18. A precedent can be accepted or rejected for the sake of justice. Explain how this paradox is obtained in the legal world. |
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Definition
| precedent can be accepted for the sake of justice because of its alike cases should be decided alike. but a precedent may also be rejected for the sake of justice because of previous decisions may have been decided unjustly and also how they may affect the future. |
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