Philosophy of Law
Natural Law - ANS--Law is based on social facts and some facts about morality
-Law & Morality are connected because law is made up of moral truths
1. If law is unjust, it is not a law
2.If legal system is unjust, it is not a valid legal system
Functionalist Argument - ANS-Law's essence is to be found in the values it serves, not
the unique structural features it possesses
Problems with Functional Argument/ Natural Law - ANS--Law can seem unjust while
serving a value
-What serves some good may not serve THE good (Moore)
Legal Positivism - ANS-Asks two questions:
1. Was law created by correct/legit authority?
2. Did authority follow the correct procedures?
**If it answers both questions, "yes", then it is a law
-if not covered by law, judge decides
Criticisms of Legal Positivism - ANS--Base law on what? How do you decide to pass the
law?
-How can we decide if law they pass is even valid?
(Natural lawyers have an answer to this question--morality)
Austin - ANS--Law is a command by a sovereign
-Law requires obedience/obligation to comply
-Subject to punishment
Problems with Austin - ANS--What about laws that don't look like commands?
(contractual law? this is just criminal law)
, -(Hart's criticism) Why are we obligated to follow the law? What is legitimate authority?
-obligation vs obliged
Importance of Austin - ANS-Designed to show that law=social facts/practice
Distinguished between what law is and what it ought to be (Nazi law=law, even if it is
unjust)
HLA Hart - ANS-- law is the union of primary and secondary rules -primary rules are
laws about how a person should act
-secondary rules are rules by which the primary rules are created, identified, changed,
and understood (justification=internal aspect of rules)
Probems with Hart - ANS--The rule of Recognition shows that most law is valid because
it is enacted by a legislature or because the laws are prior precedent.
-The rule of recognition does not work for cases like Riggs, Dworkin states
Rule of Recognition - ANS--Binding force depended upon its acceptance (not
mechanical, but behavioral)
----> "What the king/congress/constitution enacts is law"
PROBLEMS: what are the source of these laws? What validates the rule of recognition?
Why should we hold whatever the founding fathers said to be the end all be all?
Dworkin's Position - ANS-1) Positivism holds that law is a system of rules recognized by
the master rule of recognition;
2) But, law includes principles that cannot be explained as legal rules, and they cannot
be recognized by the rule of recognition;
3) Therefore, positivism is false.
Principles - ANS-A principle is a standard that is to be observed, not because it will
advance or secure some economic or political goal, but because it is a requirement of
justice or fairness
---->CAN BE ARGUED: what is fair?
ie) leeway in baseball game for someone injured
Natural Law - ANS--Law is based on social facts and some facts about morality
-Law & Morality are connected because law is made up of moral truths
1. If law is unjust, it is not a law
2.If legal system is unjust, it is not a valid legal system
Functionalist Argument - ANS-Law's essence is to be found in the values it serves, not
the unique structural features it possesses
Problems with Functional Argument/ Natural Law - ANS--Law can seem unjust while
serving a value
-What serves some good may not serve THE good (Moore)
Legal Positivism - ANS-Asks two questions:
1. Was law created by correct/legit authority?
2. Did authority follow the correct procedures?
**If it answers both questions, "yes", then it is a law
-if not covered by law, judge decides
Criticisms of Legal Positivism - ANS--Base law on what? How do you decide to pass the
law?
-How can we decide if law they pass is even valid?
(Natural lawyers have an answer to this question--morality)
Austin - ANS--Law is a command by a sovereign
-Law requires obedience/obligation to comply
-Subject to punishment
Problems with Austin - ANS--What about laws that don't look like commands?
(contractual law? this is just criminal law)
, -(Hart's criticism) Why are we obligated to follow the law? What is legitimate authority?
-obligation vs obliged
Importance of Austin - ANS-Designed to show that law=social facts/practice
Distinguished between what law is and what it ought to be (Nazi law=law, even if it is
unjust)
HLA Hart - ANS-- law is the union of primary and secondary rules -primary rules are
laws about how a person should act
-secondary rules are rules by which the primary rules are created, identified, changed,
and understood (justification=internal aspect of rules)
Probems with Hart - ANS--The rule of Recognition shows that most law is valid because
it is enacted by a legislature or because the laws are prior precedent.
-The rule of recognition does not work for cases like Riggs, Dworkin states
Rule of Recognition - ANS--Binding force depended upon its acceptance (not
mechanical, but behavioral)
----> "What the king/congress/constitution enacts is law"
PROBLEMS: what are the source of these laws? What validates the rule of recognition?
Why should we hold whatever the founding fathers said to be the end all be all?
Dworkin's Position - ANS-1) Positivism holds that law is a system of rules recognized by
the master rule of recognition;
2) But, law includes principles that cannot be explained as legal rules, and they cannot
be recognized by the rule of recognition;
3) Therefore, positivism is false.
Principles - ANS-A principle is a standard that is to be observed, not because it will
advance or secure some economic or political goal, but because it is a requirement of
justice or fairness
---->CAN BE ARGUED: what is fair?
ie) leeway in baseball game for someone injured
