Jurisprudence - Theories of Law

According to Kelsen, what distinguishes the "Pure Theory of Law" from other disciplines?

It is autonomous and independent from sociology, morality, politics, and psychology.

How does Kelsen distinguish between natural sciences and legal science?

Natural sciences describe the world as it "is" (causality), while legal science describes how the world "ought" to be (normativity).

What is the definition of a legal norm according to Kelsen?

A hypothetical judgment stating that if a specific conduct (X) occurs, a sanction (Y) ought to follow.

What is the specific function of a sanction in Kelsen’s theory?

It is an essential feature that distinguishes legal norms from social norms; non-compliance must be followed by a coercive threat.

What is "imputability" (Zurechnung) in Kelsen's theory?

The connection between a behavior and a legal consequence (sanction), which is ascribed by a norm rather than caused by nature.

What is the "Grundnorm" (Basic Norm)?

The hypothetical, presupposed norm at the very top of the legal pyramid that gives validity to the entire legal system.

How is the validity of a norm determined in Kelsen's hierarchy?

A norm is valid if it is authorized or issued by a higher standing norm.

Why did Hart reject Austin’s "Command Theory" of law?

It failed to distinguish between a legitimate legal system and a gunman's order (sheer power/coercion).

What is the "internal point of view" according to Hart?

A critical reflexive attitude where participants accept rules as reasons for action, rather than just exhibiting a habit of obedience.

What are "Primary Rules" in Hart's system?

Rules that impose duties and directly regulate behavior (e.g., criminal laws against theft or violence).

What are "Secondary Rules" in Hart's system?

Rules about other rules that confer power rather than imposing duties (e.g., rules of change, adjudication, and recognition).

What is the function of the "Rule of Recognition"?

It is the ultimate secondary rule (a social convention) used by officials to identify which rules count as valid law within the system.

How does the Rule of Recognition exist?

It exists as a social practice accepted by legal officials from the internal point of view.

What is the core tenet of Natural Law regarding morality?

Morality is objective and derived from human nature, meaning law cannot be separated from moral evaluation.

What is "Radbruch's Formula"?

Positive law takes precedence unless the conflict between statute and justice reaches such an intolerable degree that the statute becomes "flawed law" and yields to justice.

According to Radbruch, what happens when a law is "extremely unjust"?

It loses its legal character entirely and is not considered law.

What are "basic goods" in John Finnis's theory?

Intrinsic goods (like life, knowledge, and play) that are self-evident reasons for action and essential for a flourishing life.

How does Finnis define the central purpose of law?

To coordinate society in a way that enables the collective attainment of the basic goods (the common good).

How does Finnis characterize an unjust law?

It is still law, but only in a "distorted sense" (peripheral case), meaning it fails to fulfill the focal meaning of law.

What does Fuller mean by the "Inner Morality of Law"?

The procedural requirements (such as clarity and non-retroactivity) that a system must follow to function as law.

List three of Fuller’s eight principles of the Rule of Law.

Generality, Publicness (promulgation), and Prospectiveness (non-retroactivity).

What is the "reciprocity" implied in Fuller's Rule of Law?

The government assures citizens that if they follow the announced rules, the government will abide by those same rules in its administration.

According to Fuller, what is the status of a system that totally fails the Rule of Law criteria?

It ceases to be a legal system entirely; there is no law without the Rule of Law.

What is Raz's "Social Thesis"?

The existence of law is a matter of social fact, and morality is irrelevant for identifying valid law.

What is Raz's "Sources Thesis"?

All law is source-based, meaning valid law can be identified solely by looking at social sources and interpretative materials.

What are the three criteria required for a normative system to be a "Legal System" according to Raz?

Comprehensiveness, Supremacy, and Openness.

What does the "Comprehensiveness" of a legal system entail in Raz's theory?

The system claims authority to regulate any type of behavior within its jurisdiction.

What is the "Service Conception" of authority?

Authority is justified because it provides a service: helping subjects comply with right reasons better than if they acted on their own judgment.

What is a "practical authority" (as opposed to theoretical) according to Raz?

An authority that gives reasons for action (what to do), rather than reasons for belief (what is true).

What are "Exclusionary Reasons" in Raz’s theory?

Second-order reasons that exclude acting on first-order reasons, effectively preempting the subject's own balancing of reasons.