Philosophy of law final study guide 1 Law Theories

Legal Positivism

The theory that the existence and validity of law depend on social facts, not on whether the law is morally good.

Separation Thesis

States that law and morality are conceptually separate.

Validity of Law

A law can be morally wrong but still legally valid.

Three Theses of Positivism

Pedigree Thesis, Conventionality Thesis, Separability Thesis.

Pedigree Thesis

The validity of law depends on its source, such as legislatures, courts, constitutions, or rule-making institutions.

Conventionality Thesis

Law exists because officials and members of society accept certain rules as authoritative.

Separability Thesis

Legal validity does not depend on moral correctness.

John Austin - Command Theory

Austin argued that laws are commands backed by threats.

Command

A rule given by a sovereign authority.

Sovereign

The authority habitually obeyed by the population but who does not habitually obey anyone else.

Sanction

The punishment for disobeying a command.

Hart's Criticism of Austin

Hart argued law is more complex than commands.

Primary Rules

Rules that directly regulate behavior.

Examples of Primary Rules

Laws against theft, laws against murder.

Secondary Rules

Rules about how primary rules operate.

Rule of Recognition

A social rule used by officials to determine what counts as valid law.

Examples of Rule of Recognition Sources

Constitutions, statutes, judicial decisions.

Types of Laws

Duty-Imposing Laws and Power-Conferring Laws.

Duty-Imposing Laws

Rules that restrict behavior or impose obligations.

Power-Conferring Laws

Rules that give people powers (for example the power to marry or create contracts).

Dworkin's Criticism of Positivism

Dworkin argued law includes principles as well as rules.

Rules

Operate in an all-or-nothing way.

Principles

Broader moral standards that may conflict with other principles.

Examples of Principles

Fairness, equality, justice.

Judicial Reliance on Principles

Judges often rely on principles when deciding cases.