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29 Cards in this Set
- Front
- Back
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obligated
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morally required to do something (take care of my child)
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obliged
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rational reason to do something. forced to do something by the structure of the situation
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fault with Austin and being obligated
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you are obligated to obey the mugger. there is no difference between the mugger and a legitimate legal system
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primary and secondary rules
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secondary rules substantiate primary rules
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characteristics of secondary rules
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recognition, adjudication, change
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hart- is it possible for legal systems to be detached from morality
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yes. separability thesis. it is possible to have primary rules that have no moral context. although it is possible to have a moral context as well.
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aquinas and the nature of law
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legal systems aim at proper development. a law cannot be a law if is not moral.
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aquinas criteria for proper law
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reasonable, aim at common good, efficacious
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aquinas- is tyrrant a legal system?
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no
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holmes and legal duty
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nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right
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when is holmes' legal duty useful?
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when an individual wants to predict an outcome as a result of if he does or does not do something
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flaw of holme's legal duty
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you are still under a legal duty even if there is not a high likelihood that you will get caught (speeding, celebrity murder)
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fuller parable of rex 8 points
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make laws,
publicize law, retroactive legislation, not understandable, contradictory, require conduct beyond party in question, frequent change, enforcement does not equal proclamation |
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internal morality
insight to... |
fulfilling the eight principles derived from criteria above
hart and secondary rules |
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external morality
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deals with the content of laws- in line with natural law
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finnis and sexual morality
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proper end of marriage is offpsring
gay marriages do not produce offspring gvt has right to regulate public vice marriage is a public act. therefore, states can regulate marriage |
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macedos response
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what about old, sterile people?
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dworkin- rules and principles
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in hard cases, you can refer just to rules.
you cant make decisions relying on straightforward rules, you must refer to principles |
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coleman- seperability thesis
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you dont have to have morals to deal with controvery (believes in positive positivism 2)
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negative positivism
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believes in separability thesis- there is no place for morality in law
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positive positivism 1
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accepts separability thesis. Adds that the law is made up of hard facts
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positive positivism 2
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as long as there is a way to solve controversy given hard facts, you can have a positive view on law
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semantic
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sets out truth conditions for propositions of law
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epistemic
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verify the legality of legal rules and norms.
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dworkin and legal activity as interpretation
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cant avoid political morality
chain novel- interpretation based on prior judges |
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hoheld
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4
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will theory
who/what |
hart
all right confer the ability to control whether others must or must not act in a particular way |
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interest theory
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maccormick
functions of a right is to further the right holders interest |
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dworkin- rights as trump
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if society interferes with one of your rights, your rights trump the right to their interference (utilitarianism)
you have rights regardless of whether interests are threatened by the community |
