Mod 3 - Imperative And Command Theory Flashcards
(115 cards)
1
Q
What is the primary focus of the imperative or command theories of law?
A
The theories focus on the conception of sovereignty and law as commands from the sovereign.
2
Q
Who is considered the father of English political liberalism?
A
Thomas Hobbes
3
Q
What major shift in political thought did Hobbes contribute to?
A
A transition from medieval intellectual synthesis to a secular foundation for government.
4
Q
What key concept did Hobbes develop regarding law?
A
The idea of law as convention and society as an artefact.
5
Q
What is the significance of Hobbes’ work ‘Leviathan’?
A
It presents a new structure of legitimation for government based on a social contract.
6
Q
What was Hobbes’ view on the state of nature?
A
He viewed it as a condition of chaos where life is ‘solitary, poor, nasty, brutish, and short.’
7
Q
Fill in the blank: Hobbes believed that individuals should obey a strong _______ to avoid the evils of the state of nature.
A
[government]
8
Q
What does Hobbes argue is the first and greatest enemy of society?
A
Social chaos
9
Q
How did Hobbes view the role of rational self-interest in society?
A
As the basis for the social bond and allegiance to a sovereign.
10
Q
What historical context influenced Hobbes’ writing of ‘Leviathan’?
A
The chaos of the English Civil War and the decline of religious authority.
11
Q
True or False: Hobbes believed that international law was a form of positive morality.
A
True
12
Q
What was Hobbes’ stance on the relationship between law and individual self-assertion?
A
He advocated for individual self-assertion within a framework of strong government.
13
Q
Who are the two main figures associated with the imperative or command theories of law?
A
- Jeremy Bentham
- John Austin
14
Q
What does the term ‘legal positivism’ refer to?
A
A theory of law that emphasizes the separation of law and morality.
15
Q
What is a fundamental problem associated with the idea of law as a command?
A
It raises questions about the nature and legitimacy of sovereign authority.
16
Q
How does Hart critique Austin’s theory?
A
He claims to discern fundamental problems in the Austinian theory of sovereignty.
17
Q
What is the importance of understanding the social, economic, and political context when reading earlier legal theories?
A
It helps to grasp the foundational assumptions and motivations behind the theories.
18
Q
Fill in the blank: Hobbes is often seen as the first political philosopher to develop his theory on _______ foundations.
A
[materialist]
19
Q
What metaphor does Hobbes use to describe the social bond?
A
A contractual metaphor, as opposed to traditional or feudal ties.
20
Q
What does the phrase ‘Salus Populi’ refer to in Hobbes’ theory?
A
The people’s safety and welfare as the primary concern of the government.
21
Q
What are the four main components Hobbes plans to consider in describing the artificial commonwealth?
A
- The Matter and Artificer (Man)
- The Covenants that create it
- The Rights and Power of a Sovereign
- The Nature of a Christian Commonwealth
22
Q
What does the phrase ‘Nosce te ipsum’ mean?
A
Read thyself
It emphasizes self-reflection as a means to understand others.
23
Q
According to Hobbes, what is the source of Good and Evil?
A
The object of a man’s appetite or desire is called Good, and the object of his hate is called Evil
These terms are subjective and depend on the individual.
24
Q
What are the three principal causes of quarrel in human nature according to Hobbes?
A
- Competition
- Diffidence
- Glory
25
What condition do men live in without a common power to keep them in awe?
War of every man against every man
## Footnote
This state is characterized by constant fear and danger of violent death.
26
What is Hobbes' view on the nature of war?
War consists not only in battle but in a known disposition to contend by battle over time
## Footnote
This means that war is a prolonged state of conflict, not just isolated incidents.
27
What does Hobbes mean by saying 'during the time men live without a common power to keep them all in awe, they are in that condition which is called War'?
Without a common authority, there is no law or security, leading to a state of constant conflict.
28
What is the life of man described by Hobbes in the state of nature?
Solitary, poor, nasty, brutish, and short.
29
What are the implications of living in a state of nature without laws?
* No industry
* No culture of the earth
* No navigation
* No society
30
What does Hobbes suggest is necessary for men to come out of the state of nature?
Passions that incline men to peace and reason suggesting articles of peace.
31
What does Hobbes identify as the role of the sovereign?
The sovereign lays down the conditions for human flourishing by establishing laws.
32
Fill in the blank: According to Hobbes, where there is no common power, there is no _______.
law
33
True or False: Hobbes believed that justice and injustice exist in solitude.
False
34
What does Hobbes mean by saying 'nothing can be unjust' in a state of war?
Without common power, concepts of right and wrong do not exist.
35
What does Hobbes argue about the nature of men in the state of nature?
Men are equal in faculties of body and mind, leading to competition and conflict.
36
What is the 'Hobbesian problem'?
The basic question of social organization in the modern era.
37
What does Hobbes say about the relationship between law and morality?
Law does not need to be moral to be accepted as valid.
38
How does Hobbes describe the state of men in a civil war?
They degenerate into a brutish manner of life.
39
What is the consequence of having no common power, according to Hobbes?
There is no propriety, dominion, or distinction of 'Mine and Thine'.
40
What concept emerged in the 19th century regarding law?
The power of legislative reason as an instrument of rational rule guided by utility
## Footnote
This idea was significantly influenced by thinkers like Bentham.
41
What does the 'Hobbesian problem' refer to?
The basic question of social organisation in the modern era
42
How did Hobbes view the nature of society?
As an artificial construct ordered by the sovereign state
43
What did Stephen Collins argue about order in society?
Order must be designed to restrain natural flux and is fundamentally a matter of power
44
What is the significance of utilitarianism in political philosophy according to Bentham?
It provides a foundation for judging laws based on the greatest happiness of the greatest number
45
Fill in the blank: Bentham believed that the 'sacred truth' is that _______.
the greatest happiness of the greatest number is the foundation of morals and legislation
46
What institution did Bentham propose as a model for perfect control?
The panopticon
47
What criticism did Bentham have towards Blackstone's view of common law?
He called it 'nonsense on stilts' and argued it failed to consider the social impact of law
48
What was a significant contribution of John Austin to legal philosophy?
He aimed to clarify the nature of law and distinguish it from common law confusions
49
What is positive law according to Austin?
Law set by political superiors to political inferiors
50
What does Austin distinguish positive law from?
Natural law and positive morality
51
Fill in the blank: Austin believed that to achieve legal reform, one must understand the nature of _______.
law
52
How did Austin define a command?
A signification of desire that imposes a duty on the recipient
53
What are the two principal classes of laws set by men to men according to Austin?
Positive law and positive morality
54
What does the term 'positive morality' encompass?
Rules set and enforced by mere opinion, such as social customs and international law
55
What was Austin's stance on the relationship between command and duty?
They are correlative terms; where one exists, the other is implied
56
True or False: Bentham believed that law should reflect the natural rights of individuals.
False
57
What was the fate of Bentham's body after his death?
It was to be publicly dissected and then displayed as an 'auto-icon' at University College London
58
What did Austin believe was necessary to avoid confusion in legal understanding?
A clear distinction between positive law and other forms of rules or laws
59
What was the outcome of Austin's attempts to teach jurisprudence?
He found little success during his life and resigned from teaching
60
What does it mean to be bound or obliged by a command?
To be under a duty to obey the command
61
What are the correlative terms discussed in the text?
Command and duty
62
What is the consequence of disobeying a command?
Incurring an evil or punishment
63
What is a sanction?
An enforcement of obedience due to the evil that may be incurred by disobedience
64
How is a law defined in the text?
A command which obliges a person or persons
65
What distinguishes a law from an occasional command?
A law obliges generally to acts or forbearances of a class
66
What is meant by the term 'superior'?
The power of affecting others with evil or pain and forcing them to comply with one's wishes
67
How is superiority viewed in relation to the governed?
The governed can also be the superior of the monarch by collective power
68
What are customary laws thought to obligate according to some opinions?
Legally, independently of the sovereign or state
69
What is the difference between positive law and positive morality?
Positive law is established by political superiors; positive morality is based on general consent
70
What transforms a custom into positive law?
Adoption by courts of justice and enforcement by the state
71
What are the three kinds of authors that establish positive laws?
* Monarchs or sovereign bodies * Subordinate political superiors * Private persons
72
What are declaratory laws?
Laws explaining the import of existing positive law
73
What is the characteristic of positive moral rules that are laws properly so called?
* They are imperative laws or rules * They are not set by political superiors
74
Fill in the blank: No law belonging to the class of positive moral rules is a direct or circuitous command of a _______.
monarch or sovereign number
75
What are laws improperly so called set by?
General opinion of any class or society
76
What are the rules imposed upon gentlemen by current opinions called?
The rules of honour
77
What distinguishes positive laws from other types of laws?
They are set by a sovereign person or body to members of an independent political society
78
What is the relationship between sovereignty and subjection?
Sovereignty implies authority over subjects, who are obligated to comply
79
True or False: Customary laws exist as positive law by the position or establishment of political superiors.
False
80
What is the essential difference of a positive law?
Every positive law is set by a sovereign person or body to members of the independent political society.
## Footnote
This highlights the role of sovereignty in defining positive law.
81
Who is considered the legislator in the context of positive law?
The legislator is the authority by whose power the law continues to exist, not necessarily the one who first made it.
## Footnote
This aligns with Hobbes' perspective on the role of authority in law.
82
What marks or characters distinguish sovereignty?
1. Habit of obedience to a common superior
2. The superior is not in a habit of obedience to another determinate human superior
## Footnote
These characteristics define the relationship between the society and its sovereign.
83
How can the notion of sovereignty and independent political society be expressed concisely?
A determinate superior receives habitual obedience from the bulk of society and is not subject to another superior.
## Footnote
This establishes the framework for understanding political independence.
84
What is the relationship between the sovereign and the subjects?
The subjects are in a state of subjection or dependence on the sovereign.
## Footnote
This defines the political structure within an independent society.
85
What must unite for a society to be political and independent?
The generality must habitually obey a common superior, who is not habitually obedient to another.
## Footnote
This creates a clear distinction of authority within the society.
86
What does Austin argue about analytical jurisprudence?
It emphasizes the analysis of key concepts like law, right, duty, and legal validity.
## Footnote
This approach became dominant in understanding the nature of law.
87
What is legal positivism according to Austin?
Law should be studied scientifically and is determined by human judgments, not moral evaluations.
## Footnote
This separates the existence of law from its moral implications.
88
What is the famous distinction made by Austin?
'The existence of law is one thing; its merit or demerit is another.'
## Footnote
This highlights the separation of law from moral judgments.
89
How did Austin view the relationship between law and government?
He identified positive law as a creation of government and a tool for rational rule.
## Footnote
This contrasts with views that see law as independent from governmental power.
90
What was Austin's aim in his lectures?
To clarify the nature of law and resolve it into its essential elements.
## Footnote
This reflects his desire to bring clarity to legal thought.
91
What influenced Austin's work in the context of utilitarianism?
Austin interpreted utilitarianism through the lens of divine will and made utility the index of God's plan.
## Footnote
This interpretation differs from Bentham's secular utilitarianism.
92
What impact did Austin have on legal education?
He emphasized an analytical approach to law, influencing the training of English lawyers in the 19th century.
## Footnote
This shift aimed for a more rigorous understanding of legal practice.
93
Fill in the blank: Austin's command theory of law identifies laws as _______.
[commands of a sovereign]
94
True or False: Austin believed that moral and political criticism of legal systems was unimportant.
False
## Footnote
Legal positivists, including Austin, acknowledge the value of moral and political criticism.
95
What are the two components of legal positivism that Austin emphasized?
1. Descriptive approach to law
2. Separation of law from moral evaluation
## Footnote
This approach allows for a clearer understanding of legal systems.
96
What are laws 'properly so called' according to Austin?
Commands of a sovereign
## Footnote
Laws are commands that exist in a relationship of political superiority and inferiority.
97
How does Austin define positive law?
Man-made law laid down by a sovereign or its agents
## Footnote
Positive law is contrasted with laws from other sources such as God's commands or employer's commands.
98
What constitutes a command in Austin's theory?
An expressed wish that something be done with an evil imposed for non-compliance
99
What is the difference between commands and rules according to Austin?
Commands are specific, while rules are general commands applying to a class
100
Who is defined as a 'sovereign' in Austin's theory?
A person or collection of persons receiving habitual obedience from the population and not obeying any other person or institution
101
What does Austin mean by 'imperfect laws'?
Laws prescribing action without sanctions
## Footnote
This concept is attributed to Roman law jurists.
102
What types of law did Austin exclude from the province of jurisprudence?
* Customary law (unless adopted by the sovereign)
* Public international law
* Parts of constitutional law
103
According to Austin, what determines whether something is law?
Empirical investigation of who has done what, focusing on power rather than morality
104
True or False: Austin argues that law must always be moral.
False
## Footnote
Austin points out that many laws that are enforced may not have moral value.
105
What was Austin's view on judicial law-making?
He considered it highly beneficial and necessary, incorporating it into his command theory
106
What are the criticisms of Austin's theory regarding the identification of a 'sovereign'?
It is often hard to identify a sovereign in many societies
107
What is a common criticism of the command model of law?
It poorly fits aspects of law like rules granting powers to officials and citizens
108
What is a significant criticism of viewing law solely in terms of power?
It fails to distinguish between legitimate governance and rules of terror
109
What did Hart critique about Austin's theory?
Hart's criticisms focused on the abstracted model of imperative theory and the simplification of law
110
What did Halpin argue regarding Austin's methodology?
Austin contributed to a disengagement between different ways of addressing law
## Footnote
Halpin suggests Austin's strategy was based on widely accepted intuitions.
111
How is Austin's work viewed in contemporary times?
Reassessed as a mixture of analyticism and realism, with a focus on law and power
112
Fill in the blank: Austin's definition of law as the command of a sovereign is backed by a _______.
sanction
113
What is one advantage of seeing law as a set of commands?
Clarity and certainty in legal regulation
114
What is one disadvantage of Austin's command theory?
Exclusion of international law and difficulty in identifying the sovereign
115
What should a student focus on when discussing Austin's theory in an exam?
Definitions of law, the concept of the sovereign, and the relationship to power and coercive force
