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Flashcards in Charting the Options Deck (19)
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1

NATURAL LAW

men have certain natural rights and duties; necessary connection between morality and law; does not necessarily disagrees with positivism

2

REDUCTIVISM (realist or reductivist positivist)

no real duty to follow the law but the normative language can be analysed in non-normative terms such as power and obedience; understand the law by power relations/account of political system (sovereign, power, authority)

3

POSITIVISM

it is possible to identify what the law is without making a moral judgment.

claims that the law does create obligations (normativity of the law) and disagrees with a lot of natural lawyers that morality is a necessary part of the law (but eg for Finnis unjust law still law, just not good law)

4

natural reason

the reason that any human being can deploy to discover the truth.

this doesn't just tell us how to achieve what we happen to desire but it tells us what we should want/pursue

contrast with divine revelation or artificial reason (reasons created by humans)

Theorists - Grotius, Finnis, Fuller

5

Claims of Aristotle

- fundamental Q - what it means to be a human being & what makes an excellent worthwhile HB? --- VIRTUE (GOODNESS)
- human nature, sociality, social institutions (family, property, culture, religion, law), social animals
- THE LAW IS ONE OF THE MANY INSTITUTIONS THAT HELP US SUCCEED IN BEING A GOOD HUMAN BEING

6

criticism of Aristotle

- the fundamental agreement about what it means to be a good HB is missed as unacceptable metaphysics.

- ideas of summum bonum (highest good) and the common good have become contentious - as people may not have the same perception of what a good life entails

7

NATURAL LAW THEORY OF NORMATIVITY (Grotius)

- the only thing all humans share is reason
- law becomes the neutral arbiter
- starts with counterfactum: imagine a world with no law and no state, what rights would people have in this state of nature? - RIGHT OF SELF-PRESERVATION
- everyone has a perimeter of his/her free entitlements - objectively non-overlapping - as long as their actions to do not interfere with other person's freedom, we don't care about them
- IUS - justice/law in general - even though 'reason' cannot help us in defining what a flourishing life is, it can help us to define our entitlement in life
- LEX - law/posited law; the positive law that polices the borders between entitlements

8

principles of practical reasoning

reasoning towards choice and action, explanation for the intrinsic desirability of health, knowledge, harmonious relationship with others etc

firstly they direct one to actions/dispositions/arrangements; expressed by 'I should/I ought to'

political communities desirable - instituting and accepting such practical authority = necessary for preventing harm and other forms of injustice

9

RESPONSE TO POSITIVISM

- natural law theories do not necessarily deny positivism

- law can be considered as both:
SHEER SOCIAL FACT OF POWER AND PRACTICE + SET OF REASONS FOR ACTION

10

contemporary positivist theories are natural law theories distinguished from the main body of natural law by:

(a) denial that the theory of law necessarily or most appropriately tackles the related matters just listed

(b) the incompleteness of their theories of law - lack of systematic attention to the foundations of moral and normative claims

- natural law theories give more complete answer

11

POSITIVISM

law is what has been decided, practiced, a SOCIAL CONSTRUCTION

existence depends on social facts, not its merits -- do not determine whether law or legal systems exist

we can identify what the law is without making moral judgment

12

Positivists:

- Finnis
- Hobbes
- Bentham
- Austin
- Kelsen
- Hart
- Raz

13

Hobbes:

- laid down the foundations of positivism
- everyone has a right to what he believes is necessary for self-preservation - everybody has right to everything

14

Hobbes v Grotious

Grotious - one has a right to what is OBJECTIVELY necessary for self-preservation.
- Hobbes - what one SUBJECTIVELY thinks is necessary --> rights can conflict as we may have different ideas on our spheres of entitlements ---> so reason may lead to WAR
- LAW created peace and consolidation - what everyone has is given to them by the law, which may be less than they wanted
- VOLUNTARY LAW - humans surrender their natural rights of self-preservation to a sovereign power of their own creation
- legitimacy of the law derives from capacity to make peace - whatever makes peace is law - power creates rights
- peace in the name of injustice is better than war in the name of justice

15

Hobbes conclusion

no truth about where my freedom begins and yours end but rather the law stipulates this certainty and the task of law school is to describe those lines

16

REDUCTIVIST POSITIVISM (Austin)

maintains that the normative language used in describing and stating the law can be analysed without remainder in non-normative terms, ultimately as concatenations of statements about power and obedience

17

Austin

- law is general command of sovereign backed by threat of sanction
- Sovereign: a determine person or group who have supreme and absolute de facto power. must be habitually obeyed, obeys no-one
- Commands: general orders that apply to classes of actions and people, backed by threats of force or sanction

18

Criticism of Austinian positivism

- claim the authority of law cannot lie in force
- sovereign commander = not supported, in complex societies there is nobody with all the attributes of sovereignty, authority may be divided between organs and may be limited by law
- terms used = normative: sovereignty - legislator with authority to make laws but not habitually obeyed.
- obedience - normative as well, distinguish from coincidental compliance
- not all laws are commands - eg power to marry is not an obligation

19

HART (soft positivism)

- authority of law = social
- ultimate criterion of validity of legal system = social rule that exists only because it is actually practiced by the officials
- law rests on customs - who shall have the authority to decide disputes (rule of adjudication), binding reasons for decision i.e. sources of law (rule of recognition) and how they may be changed (rule of change)
- rule or recognition = official custom, not a stsandar necessarily shared by the broader community
- law = not necessarily a cultural achievement, distinctive from political order, not a moral achievement, necessity and usefulness depends of its content and context