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37 Cards in this Set
- Front
- Back
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What is Theory of Law? |
It is a component of Philosophy of Law that attempts to answer: 1.) What is law? 2.) What is the nature of Law? 3.) What Justifies Law? |
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What is Legal theory? |
It is how the judge apply, decide, interpret the Law. It is often called “applied Philosophy of Law. |
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What is jurisprudence? |
It is the reasonings of the court or legal reasonings. |
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What is law according to Felipe Sanchez Roman? |
Date: 1850-1916 Law in its specific sense is a rule of conduct, just, obligatory, promulgated by the competent authority for the common good of the people or nation. |
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What is law for St. Thomas Aquinas? |
Date: 1225-1274 Works: Summa Theological Law is an ordinance of reason ordered towards the common good promulgated by him who has charge of the community. Law is a rational standard for conduct. |
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What is law by Hans Kelsen? |
Works: Pure Theory of Laws (1934) ; The general theory of Law and State (1945) Law is an order of human behavior. |
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What is law according to Oliver Wendell Holmes? |
Works: The Path of the Law (1987) Theory: Bad Man Theory (Prediction Theory) Law is a body of dogma or systematized prediction. |
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What is Internal Morality? |
The laws must be: 1.) General 2.) Promulgated as announced 3.) Should not be retroactive 4.) Understandable 5.) not contradictory 6.) should require reasonable conduct 7.) Constant through time 8.) Administered as announced |
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What does Ronald Dworkin say about Modern Natural Law Theory? |
Works: Law’s Empire (1986); Taking Right Seriously (1978) Theory: Political and Moral Right Theory Laws include not just the norms found in treaties, customs, constitutions, Statues, and cases, but also MORAL PRINCIPLES that provide the best justification for the norma found there. He offers the INTERPRETATIVE APPROACH to law. |
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What is interpretative approach according to Ronald Dworkin? |
Legal claims are interpretative judgements and therefore combine backward-and-forward-looking elements. |
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What is Legal Positivism? |
This is also called Separability Thesis. This presupposes two principles: 1.) Law is a social fact or convention. 2.) There is no necessary connection between law and morality. |
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What does T. hobbes, J. Bentham and J. Austin say about Legal Positivism? |
Laws are constructed from commands, threats and obedience. (Command Theory) Laws are handed down by a Sovereign backed by threats of force. (Sanction Theory) The sovereign is a person group who enjoys the habitual obedience of most others but does not habitually obey anyone else (Leslie Green) |
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What is Natural Law Theory? |
This is also known as Overlap Thesis. There is substantive consideration on the relationship between Law and Morality. |
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What are the two kinds of Natural Law Theory? |
1.) Traditional Natural Law Theory 2.) Modern Natural Law Theory |
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What is Traditional Natural Law Theory? |
It suggests that the validity of laws ( that are man-made) is tested on the basis of some higher law such as reason, morality or divine law. |
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Who are the scholars of Traditional Natural Law Theory? |
1.) Cicero 2.) St. Thomas Aquinas |
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What does Cicero say about Traditional Natural Law Theory? |
Date: 106-43 BC Works: Republic True law is right season in agreement with nature. It is of universal application, unchanging and everlasting. It is a sin to try to alter this law nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. Some norms are inherent and universal. |
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What does St. Thomas Aquinas say about Traditional Natural Law Theory? |
Date: 1225-1274 Works: Summa Theologica Positive laws that are just have the power of binding in conscience. Every human law has just so much of the nature of law, as it is derived from the nature of law. But if in any point, it deflects from the law of nature, it is no longer a Law but a perversion of Law. |
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What is Modern Natural Law Theory? |
It assails the validity of legal positivists propositions. |
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Who are the scholars of Modern Natural Law Theory? |
1.) Lon Fuller 2.) Ronald Dworkin |
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What does Lon Fuller say about Modern Natural Law Theory? |
Works: The Morality of Law (1964) Law is the enterprise of subjecting human conduct to the governance of rules. Law is seen as a guiding principle, a tool, a means to an end. To be called law, it must comply to certain criteria: Internal Morality. |
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What does John Austin say about Legal Positivism? |
Date: 1790-1859 He is the father of Legal Positivism The existence of law is one thing, it’s merit or demerit is another. Whether it be or not be is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our probation and disapprobation. |
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What does H.L.A Hart say about Legal Positivism? |
Works: The Concept of Law (1961, 1994, 2012) Anything in the law is there because some person or group put it there intentionally or accidentally; it all has history and it can be changed: is either known or knowable; some of our laws have good justifications and some do not, and JUSTIFICATIONS DO NOT ANYWAYS SUFFICE TO MAKE LAW. To do that, we meed human intervention: Orders need to be given, rules be applied, decisions to be taken, customs to emerge or justification to be endorsed or asserted. Laws are posited(fixed). |
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What belief separates H.L.A Hart from Hobbes, Bentham and Austin? |
He speaks of laws as consisting of rules, including practices and customs. He believes that there are laws that are not coercively enforced. (Sanction-free Laws) |
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What theory did H.L.A Hart pioneered? |
All legal systems have: 1.) Primary Rules - Governing societal conduct 2.) Secondary Rules - Governing the rules themselves: recognition, change and adjudication. |
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What idea did Hans Kelsen contributed as a positivist? |
Works: The Pure Theory of Law (1967) He claims that while laws were posited, there were presuppositions to laws that made them valid ( validity = acceptability of laws by the governed. He believes that there is a hierarchy of norms beginning from the basic norm where all norms are related to each other. |
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What are the major legal theories? |
1.) Legal Realism (Skepticism) 2.) Legal Formalism 3.) Constructivism ( Interpretism) 4.) Critical Legal Studies |
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What is Legal Realism? |
It is an American Theory of law led by O.W. Holmes Jr. Scholars take a realistic look at how judges decided cases at what the courts do in fact. Judges are influenced by more than legal rules; they decide cases according to how the facts of the cases strike them; judges openly consider the policy implications of legal rules and decisions (Brian Leiter) Legal Reasoning is not independent from moral and political considerations. |
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What does Holmes say about Legal Realism? |
Lawyers and judges are not logicians and mathematicians. The life of the law has not been logic: it has been experience. |
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What is Judicial Activism? |
Judges base their decisions on their personal and political consideration rather than the law. |
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What are post hoc rationalizations? |
These are cases where the judge has already rendered a decision but the reasoning behind such decision is to be followed thereafter. |
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What is Legal Formalism? |
It is a by product of Positivism. It focuses on the role of the judges, that they must be constrained in interpreting and applying the law. It is a theory of legal justification. |
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What is Legal Formalism? |
It is a by product of Positivism. It focuses on the role of the judges, that they must be constrained in interpreting and applying the law. It is a theory of legal justification. |
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What is the justification behind Legal Formalism? |
A law is already the product of normative and policy consideration in the formation of the law. Hence, a judge should not say what the law should be but should confine itself to what the law is. |
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Who is the scholar of Legal Formalism? |
Justice Antonin Scalia Works: A Matter of Interpretation (1997) |
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What is Constructivism? |
It is advanced by Ronald Dworkin. Also called as Interpretivism. Judges decide, not because it is what the law mandate, but because it is what is required bu some standards of morality or justice that made up or formed the norm of law, the same standards that provide for the justification of the norm. |
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What is Critical Legal Studies? |
It believes in the inadequacy of the law or the emptiness of the law. Law is politics. ( Marxism) |
