MIDTERM 10/11

Question 1

What did Cicero think about Natural Law?

Answer 1

That it is unchanging over time and does not differ in different societies

Question 2

What is Natural Law?

Answer 2

Law of Reason, always valid no matter what humans say

Question 3

What is Human (positive) Law?

Answer 3

Man made

Question 4

According to Aquinas is a just law is consistent with the requirements of natural law?

Answer 4

Yes

Question 5

What will make a law unjust according to Aquinas?

Answer 5

If a law giver hasn’t exceeded authority and laws are imposed on citizens fairly… failure will make a law unjust.

Question 6

According to Aquinas what is a citizens obligation to an unjust law?

Answer 6

There is no obligation to obey that law. AN UNJUST LAW IS NOT A LAW.

Question 7

Does MLK believe that “an unjust law is no law at all”?

Answer 7

yes

Question 8

What does MLK say about just and unjust laws?

Answer 8

that any law that uplifts human personality is JUST and any law that degrades human personality is UNJUST.

Question 9

What is the Natural law theory?

Answer 9

Natural law theorists believe that human laws are defined by morality, and not by an authority figure. recognizes law and morality as deeply connected. humans are guided by our human nature

Question 10

Does Austin believe that an unjust law is not a law?

Answer 10

NO

Question 11

According to Austin what is every law or rule?

Answer 11

a command

Question 12

According to Austin what makes a command, a command?

Answer 12

if one is able and willing to harm if wish is complied, then it is a command.

Question 13

Austin: Positive law v. positive morality

Answer 13

everyone should be able to recognize positive law and positive morality can be false… like slavery.

Question 14

Austin: what is a positivist?

Answer 14

law is a system of power

Question 15

Austin: Authority= what

Answer 15

power

Question 16

Austin: Anything you can get away with, really isn’t wrong

Answer 16

yes thats what he believes

Question 17

Riggs v. Palmer: what would common law say in this case?

Answer 17

That one should not be able to profit off own crime

Question 18

Natural Law Theory

Answer 18

positive law that conflicts with natural law is invalid

Question 19

What is positivism according to Austin

Answer 19

that law is a command from political superiours

Question 20

Legal realism

Answer 20

whatever is actually enforced

Question 21

Holmes: what does the bad person care about?

Answer 21

the bad person doesn’t care about morality… they only care about what will happen to them

Question 22

what is Holmes objection to Austin?

Answer 22

that a command that is not enforced is not a law

Question 23

Holmes: are unwritten rules that are enforced a law?

Answer 23

Yes

Question 24

Holmes: what is the first fallacy?

Answer 24

that they confuse law with morality. law is filled with moral sounding language (promise, good, duty)

Question 25

Holmes: what is the second fallacy?

Answer 25

mistakenly believe judicial interpretation is just logical detection against formalism

Question 26

Holmes: what should judges study?

Answer 26

History and economics

Question 27

was Hart a positivist?

Answer 27

yes

Question 28

what is utilitarianism?

Answer 28

right action=most good; maximized happiness

Question 29

does natural law say an unjust law is valid?

Answer 29

no

Question 30

does Austins positivism (command theory) say that an unjust law is valid?

Answer 30

yes

Question 31

does legal realism say that an unjust law is valid?

Answer 31

yes

Question 32

does harts positivism say that an unjust law is valid?

Answer 32

no

Question 33

does any of the four different theorist say to obey a serious moral law?

Answer 33

no. none of them deny that morality matters

Question 34

what does natural law think about authority?

Answer 34

authority does not equal power

Question 35

what does Austins positivism (command theory) think about authority?

Answer 35

authority does equal power

Question 36

what does legal realism think about authority?

Answer 36

authority does euqal power

Question 37

what does harts positivism think about authority?

Answer 37

authority does not equal power

Question 38

Hart: what are primary rules?

Answer 38

rules for behavior... they're enforced by social pressure

Question 39

Hart: what are the defects of a society that only runs on primary rules?

Answer 39

uncertainty, static, and inefficient enforccement

Question 40

Hart: what are secondary rules?

Answer 40

rules for making rules (rules about rules)

Question 41

Hart: how would secondary rules help with the defects of the primary rules?

Answer 41

recognition (something that people can agree with and write down) change adjudication

Question 42

what is law to Hart?

Answer 42

law is a union of primary and secondary rules

Question 43

Hart: why is rule of recognition important?

Answer 43

it determines validity. once you have a way of deciding what rules are official you turn it from custom to law.

Question 44

What is positivism in law?

Answer 44

It implies that legal rules are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such