philosphy of law final exam review

what is law?

Laws and legal institutions are familiar parts of the fabric of our society. We know that
the law forbids some acts (e.g., murder, theft) and mandates others (e.g., paying your
taxes). We know that the legislative branch of government may introduce new laws
and modify or repeal old ones. We often speak of the “rule of law,” upheld in
significant through a well-functioning judicial system which interprets and applies the
law in concrete cases of dispute.
But none of this tells us in any straightforward sense what law itself is.

Analytic Jurisprudence is?

How might we go about answering the questions, “what is law”.

Point of departure: Law is a system of norms. It specifies (perhaps within a certain domain) what is acceptable and what is not acceptable.

The study of what law is —its nature and defintion—separate from moral evolution.

Normative Jurisprudence is?

The study of questions about law’s value, legitmacy, and moral force (e.g, should we obey unjust laws?)

legal postitivism is?

A theory of law that denies necessary connections between law and morality. OR, the view that law’s existence and content depend on social facts, not on moral correctness.

What does legal positivism assert about the existence and content of law?

They depend on social facts rather than moral merits.

Austin’s Command Theory

Law is the command of a sovereign backed by threat of punishment

Imperative mood

To give a comamand, request, or an order.

We often find ourselves wanting other people to
do or to refrain from doing various things. We can
express this desire in various ways, one of which
is to employ the imperative mood: “Stop that!”;
“Don’t you dare!”; “Do it!” etc.
When we express our desires in the imperative
mood, we intend that the person we are
addressing conforms to the desire we express;
and the purpose of our expression is to get them
to conform to our desire

giving orders and making laws

orders are a form of communication but laws are not

Harts. Persistence and Habit of Obedience

Persistence come from the belief that there will be the execution of latent threat if not followed through. also Austin’s idea that for law to exist, people must generally obey the sovereign’s commands out of habit.

General Habit of obedience

The body of norms which law consists of shares this grounded stability

sovereign

The supreme, independent person or body in a society whose commands are habitually obeyed and who obeys no one else.

Hart’s objection to Austin

Hart criticizes the command theory for distoring law’s content, range of application, and mode or origin

the objection to content

Its not do or not do this thing, some laws concern with transfer of power

The objections to range of application

laws also apply to the legislator

objection concerning mode of origin

some laws originate in custom, command theorisits dont recongize custom as a soure of law at all

the law of torts/Tort law

Addresses the allocation of losses arising out of huma activity.. who should bear these inevitable losses

Hart on Habit of obedience

no means of succession from one legislator to another and the obedience of the previous legislator does not guarantee obedience of the new legislator

Hart on difference between habits and social rules

1. their behaviour to converge but law takes deviations as faults (everyone can have slightly different habits but not law)

2. Deviation from law have legitimate criticisms (unjust)

3. Rules have an internal aspect, the behaviour is a general standard to be followed by whole group. (chess pieces move a certain way because those are the rules)

Hart on Persistence

There must be limits on legislative power so that two rules don’t ever contradict each other. there needs to be grounds for distiniction. how laws made by a past sovereign remain valid after their death - not explained well by habit alone.

harts on limits of legislative power

Limits can take on the form of legal disabilities like the constitution

The existence of a sovereign is not a necessary condition of existence in law

limits on legislative power

Legal limitations can be legal disabilities ( a constitutional limit means the legislatiture cannot make certain laws, they’d be void, not just disobeyed)

Enactment is law doesnt need to be traced back to the legislator, its enough to fit under a criteria being met

Legal system to be independent means no other nation or people can have authority in our law

Supreme legislative authority vs legally unlimited legislative authority

Legislator habits of obedience must be evidential importance to all the preceding

command theorist Clarifications

If law exists so does the sovereign

No legal limits on sovereigns power (can still be influenced by the populace)

Hart Primary rules

Rules that impose duties — tell people what they must or must not do (e.g., criminal laws).

Hart Secondary rules

Rules about rules — they set procedures for creating, changing, and applying primary rules.

Command theorisits predictive interpretation

treating statements of obligation as a prediction of punishment to occur in the failure to do so

Harts objections of predictive interpretation

1. deviations from social rules are grounds for justification for the given reaction and sanction

2. untrue that imputing an obligation to an individual means she is to suffer in the event of disobedience (on the account she is never caught)

Hart’s Rules of Obligation

A justifying ground to exoress hostikity in the case of failure to do so. For Hart, obligation comes from social rules that people accept as standards, not just fear of punishment.

Hart’s rule of reognition

Criteria for identifying valid legal/primary rules. A secondary rule that tells officials how to identify valid laws in the legal system (the “master rule”).

Hart’s rule of adjudication

a way to acknowledge if a rule has been violated. Secondary rules that empower courts to decide legal disputes and punish violation

Harts rule of change

a way to change or modify rules. Secondary rules that allow new laws to be made or old ones changed.

supreme criterion of validity

a way to recognize the rules, if it follows the criteria it is valid no matter the clause. The rule of recognition provides the highest standard for identifying valid laws in the system.

Ultimacy

a rule that provides criteria for the assesment of the validity of other rules. The rule of recognition is “ultimate” because its validity is not based on another rule — it’s just accepted.

Harts opinion on how legal system works

primary rules and secondary rules.

Primary vs. Secondary Rules: Primary rules impose duties (e.g., don’t steal). Secondary rules govern how primary rules are made, changed, and applied.

Harts opinion how legal system shoul exist

regarded (by public officials) from the internal point of view as a public and commonstandard of correct judicial decision (rather than as something each judge obeys forher part only)

command theorisits Seperation Thesis

1. A body of laws may include moral principles.

2. Law itself is (usually or always) valuable.

3. Reference to a society's moral beliefs may help toexplain the content of that society's laws.

4. A given legal system's stability may require that it is infact, or is at least viewed by those subject to it as,(minimally) just

Fullers Fidelity to law. and what is Fuller’s critque of postivism?

The idea that law deserves loyalty or respect because it is a human achievement aimed at creating order.

Lon Fuller argues that law has inner morality — principles like clarity, consistency, and publicty— without which law cannot function.

Fullers argument of order

order itself contains a moral element. Fuller says even “order” has moral elements.

What is the Trial judge’s dilemma?

It refers to the conflict judges face between following the law and maintaining respect for the law. A judge torn between following higher court’s bad rulings and fidelity to law. Fuller says judges must also aim for what law ought to be.

what does the trial judges dileema reject?

it rejects the separation thesis

Grudge informer case

WW2 informed on her husband and he got sent to war and brought a case when he came back saying he was denied his freedom but the older law about denunciations had not been repealed.

fuller = breached standards of basic goods so was against inner morality so was never law and doesn't need to be repealed. Fuller defends German courts: Naszi laws were so morally courrupt they weren’t real law. Courts rightly ignored them. They were so immoral they ceased to be law.

hart= valid law as the law was passed in line with the rule of recognition, court would have to annul the laws. Nazi laws were bad but still law.

Retroactive Law

A law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law. Laws that apply to past actions. Fuller says overuse undermines law’s inner morality (predictability, fairness).

Fuller Law

Fuller thinks that any adequate account oflaw needs to capture the sense in which law is something which is deserving ofloyalty or respect.

2. Law is a functioning kind of social order.

3. Law contains an inner (or implicit) morality,without which it cannot exist.

What is the purpose of law accoriding to Dworkin’s Positivism

The law is used for determining which behavior should be punished or coerced by the public.

How is law defined in Dworkin’s postivism?

Law is a set of valid rules defined by the first tenet; if it isn't covered by applying law, use an official exercising discretion.

When does someone have a legal obligation in Dwokrin’s Positivism?

Someone has a legal obligation if their case falls under a valid rule to require or deny her an action.

Dworkin’s Objection to Positivism

Positivism understandslaw as a system of rules. It maintains that there isa single fundamental test for law. But standards which are not rules still play an important, indespensable role in reasoning/disputing about legal rights and obligation. Ronald Dworkin says law includes principles, not just rules — and principles are moral in nature.

Dworkin on principles

Principles are distinct from rules

They are not All or nothing application

Principles have weight/importance. the one considered more important is used (there cannot be 2 valid rules in a system)

Role of principles

principles can be used to create a new rule or as a standard to interpret wills. Principles give reasons that have weight and can conflict.

Dworkins two approaches

Grant that principles may be binding in much thesame way that legal rules can be (binding upon judges)

Deny that principles can be binding in the waythat some rules are.

Legal discretion (Dworkin)

talk of discretion has to do with the range of decisions a given standard purports to control

significance of principles

a judge can change an existing rule of law cannot be a matter of discretion but principles (discretion only allows what is g iven at hand)

rule of recognition vs principles

derviving their ultimate driterion vs deriving from principles. Hart’s rule of recognition can’t identify principles because they aren’t made by a single act — they emerge from community and legal tradition.

Natural Law Theory (Finnis)

the view that right actions are those that conform to moral standards discerned in nature through human reason. Rejects the Separation Thesis — says law and morality are necessarily connected. Law’s purpose is to serve basic human goods (e.g., life, knowledge, community) and promote practical reasonableness.

Focal meaning (finnis)

The focal meaning in the context of John Finnis refers to the concept that every legal concept has a central case or idealized version that serves as a standard for interpretation and comparison. Words like “law” have a central meaning (e.g., law that serves the common good) and peripheral meanings (e.g., unjust laws).

Finnis view on positivism

they agree on the definition of law but disagree on how important the practical view of law is (the importance of descisions being made)

practica point of view from fennis

practical point of view, in this sense, is a view to do with decisionand action (you want to host a party or not)

Finnis faulting hart (central vs peripheral)

Central is people accepting law and internalizing it as part of their moral criteria

Peripheral is people accepting law because they want to fit in

Finnis two point

1. Descriptive legal theorists (like positivists) secretly rely on a practical viewpoint. Even though they claim to be purely "describing" law, the details of their theories are shaped by some practical perspective they choose—one that tells them what counts as important, relevant, or central in a legal system.

2. These theorists rarely justify this practical viewpoint. They usually don't explain why they chose that perspective or provide arguments for it. At best, they defend it indirectly by contrasting it with worse alternatives (e.g., Hart saying his view is better than Austin's), but they never fully justify the practical assumptions behind their own framework.

The principles of natural law

First: Finnis argues that there are basic practical principles that identify fundamental human goods and guide everyone's practical reasoning, even when they reason incorrectly.

Second: One of these goods is practical reasonableness, whose methodological requirements distinguish sound, reasonable actions from unsound, unreasonable ones.

Third: These distinctions between reasonable and unreasonable actions form the basis for identifying what is morally right or wrong, allowing for the development of general moral standards.

Lord Devlin and the Enforcement of Morals (written by Dworkin)

How to interpret and justify something as a legal crime?

Devlins First Argument

Society needs moral standards to look upon to punish dissent-moral conformity is essential

Society has a right to preserve its own existence through traditionalism

Society preserves its existence by using law to preserve the conformity

Restraining principles on societys right to punish immorality by law, however none of these restraining principles apply when public feeling is all time high. Society can enforce moral conformity to survive. Dworkin: This confuses outrage with real harm. Society may criminalize conduct if there’s strong public moral outrage, to preserve social cohesion. Dworkin: outrage alone doesn’t justify coercion.

Dworkins respose to Devlins First Argument

The third step fails to present public outrage as a threshold criterion, if the law doesnt apply to it it ius legal. Fourth step treats outrage as a strong reason to prohibit it but if it is not enough to threaten its survival then it doesnt have to be illegal. (using the second step)

Devlins second argument

1. Free practice of homosexuality leads to unpredictable broad changes

2. whether to legalize homosexual conduct may contain moral issues, if institution may stand to change

3. acting on democratic principles

In a democracy, lawmakers should follow majority moral beliefs because the community acts through law and must take moral responsibility. In a democracy, lawmakers should follow majority moral beliefs because the community acts through law and must take moral responsibility.

Dworkin response to second argument

Produce some reason that homosexuality is immoral, and accept that the principle for the reason in question.

Hobbes Leviathan, Liberty

Free from external impidements, consistent with precsense of fear and duress and with necessity. Liberty = absence of external impediments to motion. Compatible with fear, duress, and necessity.

Mills Civil Liberty

Freedom from interference by society or the majority — the “tyranny of the majority.”

Harm Principle (MIlL)

"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." The only justification for limiting someone’s liberty is to prevent harm to others.

separation thesis is

the postivist claim that there is no ncessary connection between law and morality; law can be morally bad but still be law

normative jurisprudence

the study of what law ought to be — moral/prescritpive questions about law, liberty, justice, etc.

state of Nature (Hobbes)

A pre-society condition of “war of all against all” where life is nasty, brutish, and short.

sovereign’s legitmacy (hobbes)

The sovereign’s power comes from the transferred rights of all; authority is absolute but limited by the right to self-preservation.

Fundamental Liberties (Mill)

Liberty of thought/conscience, expression, tastes/pursuits, and association.

Negative Liberty (Berlin)

Freedom from interference by others — “the wider the area of non-interference, the wider my freedom.”

Positive Liberty (Berlin)

Freedom to be one’s own master — self-direction and self-realization, often involving state promotion of citizens’ “true” interests.

Berlin’s Critique of Mill

Mill conflates negative liberty with conditions for human flourishing — flourishing can occur without wide personal freedom.

Two selves theory (positive liberity, Berlin)

The “true” rational self vs. lower desires — coercion can be justified as helping people achieve what they “really” want.

Pluralism (berlin)

There are multiple, conflicting ultimate values (liberty, equality, justice, etc.) — not all can be fully realized together.

Tyranny of the Majority (Mill/Berlin)

In democracies, the majority can oppress minorities through law — negative liberty protects against this.

Negative vs. Positive Liberty (Berlin)

Negative = freedom from interference. Positive = freedom to be your own master/self-realization. They can conflict.

Berlin’s Negative Liberty

Freedom as absence of interference by others — “non-interference.”

Postive Libertry (Berlin)

Freedom as self-mastery, self, direction, being your own master

Freedom as Non-Frustration (Hobbes)

You are free if you can do what you actually want without being stopped — only frustrated preferences matter.

Berlin’s critique of Non-frustration

You can’t become free just by changing your desires to match your constraints (e.g., learning to love prison).

Freedom as Non-interference (berlin)

Both options in a choice must be open — interference with non-preferred options also reduces freedom.

Pettit’s critique of Non-interference

You can’t become free just by ingratiating yourself with those who could interfere (e.g., pleasing a dictator).

Freedom as Non-Domination (Pettit)

Freedom requires that no one has the arbitrary power to interfere with your choices — not just absence of interference.

Republicanism (Pettit)

Political tradition emphasizing freedom as non-domination, requiring institutional safeguards against arbitrary power

Martin Luther King Jr. Letter from Birmingham Jail

Defends civil disobedience: moral duty to disobey unjust laws

Just vs. Unlust laws (King)

Just laws align with moral law/equality; unjust laws degrade human personality and are not binding.

Direct Action (King)

Non-violent protests designed to create tension and force negotiation — used when dialogue fails

Prima Facoe Obligation (Smith)

A moral reason to do something that must be followed unless overridden by a stronger moral reason.

Generic vs. Specific Obligation (Smith)

Generic: applies to a type of act (e.g., obey the law). Specific: applies to a particular act (e.g., don’t murder).

Argument from Fair Play

We should obey because others obey, and it’s unfair to free-ride. In cooperative schemes, those who benefit must obey rules to avoid unfairness. Smith says this doesn’t ground a general duty. legal systems are not like small voluntary schemes. Smith believes: Fair play doesn’t create a duty to obey all laws because legal systems aren’t voluntary and disobedience often doesn’t harm others.

Implict consent (smith)

The idea that by staying in a country or voting, you agree to obey its laws. Smith says this is morally empty.

Utilitarian Arguments for obedience

1. Obedience supports government which promotes general good.
2. If everyone disobeyed, government would collapse.
3. Rule-utilitarianism supports a rule of obedience.

Smith’s critique of utilitarian arguments

Obedience isn’t always optimific; generalization arguments are flawed; rule-utilitarian rule isn’t needed because other moral rules already cover most cases.

tests for moral weight (Smith)

1. Seriousness Test: Violating the obligation with no overriding reason is seriously wrong.
2. Aggravation Test: Violation makes an already wrong act much worse.

obligation to obey is trivial (Smith)

Running a stop sign at night isn’t seriously wrong; illegal fraud isn’t much worse than legal fraud. So if there is a duty to obey, it’s very weak.

Smith’s Conclusion

There is no general prima facie obligation to obey the law, and if it exists, it carries little moral weight.

Rawls on civil disobedience and defintion

Focuses on civil disobedience in a nearly just democratic society, not in deeply unjust or authoritarian regimes.

A public, nonviolent, conscientious, political act contrary to law, aimed at changing law or policy, based on shared principles of justice.