Foundations of Law: Austin, Dworkin, and the French Revolution | Quizlet

Command Theory

Law as a species of commands expressing wishes.

Command

Expression of desire with potential for harm.

Duty

Obligation to comply with a command.

Correlative Terms

Commands imply duties and vice versa.

Sanction

Evil incurred for disobeying a command.

Superiority

Power to enforce compliance through potential harm.

Inferior

Party bound to obey commands from superiors.

Legal Positivism

Law defined by rules, not moral content.

Pedigree

Manner of adoption defining valid legal rules.

Exhaustive Law

Valid rules encompass all legal obligations.

Discretion

Judges create rules beyond existing law.

Legal Obligation

Requirement under a valid legal rule.

Hart's Positivism

Complex view rejecting Austin's command theory.

French Revolution

Catalyst for codification movements in Europe.

Codification

Systematic arrangement of laws into codes.

Jurisprudence

Science of law and legal principles.

Moral Rules

Guidelines based on ethics, not legal validity.

Legal Right

Entitlement recognized by law requiring enforcement.

Compliance

Adherence to commands or legal obligations.

Vagueness

Lack of clarity in legal rules.

Spurious Rules

Invalid rules not recognized as legal.

Tacitus Quote

Prayers that imply commands cannot be contradicted.

Liability to Evil

Risk of harm for non-compliance with commands.

Primary Rules

Grant rights or impose obligations on members.

Secondary Rules

Regulate formation and modification of primary rules.

Acceptance

Binding if a group recognizes it as standard.

Validity

Binding if enacted per secondary rules.

Valid Rules

Created in accordance with secondary rules.

Rule of Recognition

Fundamental rule identifying legal rules' validity.

Hart's Concept of Law

Law emerges from community's acceptance of rules.

Dworkin's Attack

Critiques positivism, emphasizing principles and policies.

Hard Cases

Legal situations requiring standards beyond rules.

Rules

Operate in an all-or-nothing manner.

Principles

Provide reasons without necessitating specific outcomes.

Weight of Principles

Principles have importance that rules lack.

Conflict Resolution

Conflicts resolved by higher authority or principles.

Application of Standards

Terms like 'reasonable' depend on principles.

Riggs Case

Principles justified new rule adoption post-case.

Henningsen Case

Principles guide interpretation of existing statutes.

Judicial Obligation

Judges must consider principles in legal analysis.

Binding Principles

Dworkin argues principles are part of law.

Extra-legal Principles

Judges may follow principles outside existing law.

Legal Rights Enforcement

Judges may enforce rights in hard cases.

Enumerability of Exceptions

Rules may have exceptions but are countable.

Principles' Direction

Principles incline decisions without enforcing them.

Legal Obligation Analysis

Must include principles alongside rules.

Positivism

Legal theory emphasizing rules over moral principles.

Dworkin's Argument 1

Judges ignoring principles fail their legal duty.

Dworkin's Argument 2

Principles can influence outcomes, unlike rigid rules.

Principles' Weight

The importance of principles in legal judgments.

Controversy of Authority

Debate over how to establish principles' legal weight.

Counter-Argument for Binding Principles

Few rules can be binding if principles aren't.

Legislative Supremacy

Principle asserting legislative authority over legal changes.

Hart's Pedigree Test

Validity based on enactment; fails for principles.

Sense of Appropriateness

Principles develop from societal norms over time.

Erosion of Principles

Principles lose power gradually, not through overruling.

Acceptance vs. Validity

Distinction fails for principles in legal contexts.

Constellation of Principles

Multiple principles can create legal obligations.

Radical Transformation

French Revolution's impact on European legal systems.

Doctrine of Discretion

Judicial freedom to interpret laws subjectively.

Common Law

Law developed through court decisions over time.

Judicial Duty

Judges' responsibility to apply relevant legal principles.

Principles vs. Rules

Principles provide guidance, rules dictate outcomes.

Complete Overhaul

Radical transformation of legal and political systems.

Natural Law

Principles based on reason and inherent rights.

Sovereignty

Power of the nation to govern itself.

Single Law for All France

Unified legal system replacing local laws.

Declaration of the Rights of Man

Proclaimed inalienable rights in 1789.

Legislation as Normative Source

Only laws created by the people are valid.

Clean Slate Law

Law free from tradition and past customs.

Legal Creation

Any reasonable person can create law.

Unification of Legal Subject

Equality before law, regardless of background.

Unification of Property Rights

All entitlements consolidated under one owner.

Natural and Imprescriptible Property

Property rights deemed sacred and inviolable.

Indivisible Sovereignty

Sovereignty cannot be divided or alienated.

Influence of Enlightenment

Rational individuals shape society through social pact.

Radical Change Advocacy

Rousseau's call for profound societal transformation.

Abolition of Feudalism

Elimination of feudal privileges and structures.

Legal Simplification

Laws made comprehensible for all citizens.

Elected Representatives

Laws created by politicians, not professionals.

Interventionist Laws

Laws actively shape and improve society.

Old Regime Law

Based on customs, doctrine, and divine will.

New Public Authority

Centralized power under a single government.

Social Pact

Agreement among individuals to form a society.

Radical Strains of Thought

Ideas advocating total societal refoundation.

Codification Fever

19th century trend of legal codification in Europe.

French Codification

Initiated by Code Napoléon in 1804, emphasizing reason.

Code Napoléon

Civil Code of 1804, aimed for clarity and accessibility.

Legal Revolution

Legislative mandate to cease previous law applications.

Articles 4 and 5

Guaranteed supremacy and clarity of the Civil Code.

Universalization

Global application of codes for national unification.

Paradox of Codification

Embodied national laws while promoting universal principles.

German Codification

BGB of 1896, influenced by Romantic nationalism.

German Historical School

Law as a product of tradition and culture.

Volksgeist

Spirit of the people, influencing German legal thought.

Jurists' Role

Jurists to systematize customary law into codes.

Pandect-Science

Methodology for systematizing law using Roman principles.

BGB Structure

Includes general provisions, property, obligations, family law.

BGB Sections

Approximately 2385 sections detailing various legal areas.

Technical Language

BGB's complex language, challenging for non-experts.