Law, Society and Justice Flashcards

Legal Positivism

a philosophy of law that emphasizes the separation of law and morality, asserting the description of law should be objective and free from moral judgements.

separability thesis

the question of what law is is distinct from what the law ought to be

descriptive focus

legal positivism seeks an objective and morally neutral description of law

social facts

what the law is grounded in, such as conventions and the actions of legal officials

primary and secondary rules

a categorization of legal rules made by H.L.A. Hart

primary rules

the imposing of duties

secondary rules

governing the legal system itself

inclusive legal positivism

legal positivism which allows for the possibility of moral criteria to be incorporated into the criteria for legal validity

exclusive positivism

legal positivism which does not allow for moral considerations and rejects its incorporation into the criteria for legal validity

natural law theory

natural law theorists argue that there is a necessary connection between law and morality

legal realism

emphasizes the role of judicial discretion and the influence of non-legal factors in legal decision-making

legal pluralism

challenges the focus on the state of law, highlighting the existence of multiple legal systems within a society

traditional natural law theory

focuses on arguments for the existence of a `higher law´ its content and its implications for citizens when positive law conflicts with it.

Cicero’s formulation of natural law

natural law unchanging, everyone can figure it out using reason, and that only laws that are fair and just can truly be called ‘laws’

Thomas Aquinas beliefs on natural law

human laws should be based on natural law, according to natural law theory, if a human law goes against natural law, it is not really a law at all

rise of legal positivism

in the 19th century alongside the rise of urbanisation, modernisation and legal codification, going in conjunction with natural sciences, leading the law to emulate scientific objectivity

the paradox of legal positivism

while legal positivism claims to be separated from influence of personal values, legal certainty in itself is a value

inuista lex non est lex

an unjust law is no law at all

natural law and international law

natural law is a necessity to be able to believe in international law superseding individual legal regimes

Remota iustitia, quid sint regna nisi magna labrocinia?

without the aspiration of, what are kingdoms but great robberies - Augustine

modern natural law

the attempt to hold on to the universalism of natural law without underpinning it with religious or metaphysical beliefs

revival of natural law theory

the direct response to the atrocities of WWII to hold individuals accountable, which is only able if there is a belief that certain laws supersede individual regimes

Radbruch’s Formula

when a law is extremely unjust, it loses its legal validity and must be disregarded in favor of justice. It balances legal positivism with natural law, asserting that statutory law should generally be followed unless it contradicts fundamental principles of justice to an intolerable degree.

what led to the rise of legal positivism

law going in conjunction with the natural sciences, which led to law emulating the science’s objectivity after the rise of urbanisation and modernisation

civil disobedience

the refusal to comply with certain laws considered unjust

Martin Luther King

an example of the revival of natural law in the form of promoting civil disobedience

issue with natural law theory

who decides what is considered unjust, it is based in subjectivity

Customary rule

unwritten rules based on customs and principles

Ronald Dworkin

one of the most influential English-language legal theorists who developed an alternative to legal positivism which does not align with traditional natural law theories

constructive interpretation

the law is an ongoing narrative and must be based on past governmental actions (statutes, judicial rulings) while also making the law the best it can be

Key elements of constructive interpretations

1.) Pre-interpretive stage

2.) Interpretive stage

3.) Post- interpretive stage

pre-interpretive stage

identifying legal materials (statutes, cases, precedents)

interpretive stage

judges select the best moral and political justification for existing laws

post-interpretive stage

applying interpretation in a way that fits and justifies the law

right answer thesis

Dworkin’s most controversial claim that every legal case has a unique right answer, even in hard cases, where no clear rules apply, there is still a correct legal answer to be considered

criticism of the right answer thesis

legal reasoning is inherently subjective and judges often reach different conclusions

Article 1 of the Dutch Constitution

the prohibition of discrimination, and that all persons in the Netherlands shall be treated equally in equal circumstances

legal integrity

laws should be interpreted as a coherent whole, not as a collection of isolated rules, where judges should act as if the law was created by a single author with a coherent moral vision

criticisms of Dworkin’s theory

• Too idealistic

• focuses too much on judges

• overstates legal certainty

mechanical adjudication

rule scepticism

the idea that rules only play a small role within the wider context of legal outcomes

legal determinacy

the extent to which the right legal outcomes are determined my legal rules

legal formalism

an approach to jurisprudence that emphasizes the discovery of legal principles through logical analysis.

victor’s justice

the excessive or unjustified punishment of defeated parties and the light punishment of or clemency for offenses which have been committed by victors.