LAWS302 Jurisprudence: Blue Zone: Judge and Lawyer

the chicken-egg problem

you can’t make a rule without an authority, but an authority can’t be established without a rule

potential solutions to the chicken-egg problem?

natural law and legal positivism

potential dissolutions to the chicken-egg problem?

legal realism and critical legal theories

the norm-power problem

legal norms can only be created if an existing norm confers the power to do so; a norm conferring power to created legal norms exists only if one with power to do so created it

how does classical natural law fight the norms/authorities problem?

by claiming that God is the ultimate authority

how does modern natural law fight the norms/authorities problem?

by claiming morality as the ultimate rules

what are the two ways to solve the chicken-egg / norm-authority problem

find an ultimate authority or find an ultimate rule

legal realism simplified

there are no rules or authorities; law in action rather than law in the books

critical legal theories simplified

what is interesting about ‘ultimate’ rules and authorities is how they are socially and politically constructed by power dynamics or other socio-cultural, psychological, or aesthetic mechanisms

Austin’s comman theory

law is the command of a sovereign backed by force

who is a sovereign according to Austin?

a sovereign is someone to whom most of society have “a general habit of obedience”, but who does not have “a general habit of obedience” towards anyone else

what is the key thing that positivists believe about law?

The existence of law is one thing; its merit or demerit another

Kelsen’s Pure Theory of Law

law as a self-contained system of rules, completely separate from morality, politics, and sociology. It focuses only on what the law is, not what it ought to be, using a clear hierarchy where every law gets its power from a higher rule

kelsen - "the reason for a validity of a norm is always

another norm, never a fact

what is a grundnorm?

the most basic rule, often to obey the constitution, the source of law

Holmes believes law is

what the courts end up doing about the law

according the Holmes’ ‘bad person’ law is

not what is on the books, but what it might do (ie the consequences)

what do all three positivists have in common

a focus on coercion and sanction, and differentiating law from morality, religion, and social norms

Hart’s two minimum conditions for a legal system

it must be generally obeyed and effectively accepted as common public standards of behaviour