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MU BLS 342 - Positive Law

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Bls 342 1st Edition Lecture 5 Current LecturePeaches Parable purpose: Laws need to be adaptable Laws have more than rule aspect to them, organic context, it grows and changes and reacts to its surroundingsOur evolution of law has this characteristic, flexible, organicReason for law is as important as the rule itself, and the interpretation and application What is law? Process of context, rule, application and interpretation, all of which are equally importantNames:Jack Mcneil Herron 8 1/2Nathan Daniel Herrom 5Samantha Caroline 4Wesley Andrew 2New Baby: Blaise Kimbal Silvagio How does this all come about? Philosophy behind the lawTo understand the theory and concept of the law, you must understand the history because it is the mother discipline of knowledge These notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.How does law tie into history?Earliest roots of western civilization Greco Roman Judaism mosaic and greek and roman perspectiveof lawLaw comes from God/divine authority, for some people it’s one god and others it’s many, and in other words law is objective, comes from an external source, other than humanWhy is killing wrong? Bc God says so and therefore it should be illegalLaw and morality are synonymous Plato, Aristotal, do you have to believe in a God to believe that laws exist? If you’re an Atheist can you believe that murder is morally wrong? Yes. There are inherent human rights, just from the nature of things as Plato would say, there are rights that exists whether humans are there or not, these laws and rights always were, though many become from a divine creator or not, they come from nature as in the essence of existence, from a non-relgious perspective 900 B.C. This legal philosophy is referred to as NATURAL LAWThis is a powerful philosophy. Number one country believing in this is the United States. Congress shall pass no law inhibiting the rightsof free speech, cannot inhibit natural law. Constitution doesn’t create the rights, it preserves the rights because these are naturalRight to free governanceanother natural law One of the great constants is that there is always a reaction or a counter-theory to everything in historyAt first:Brothers fight and coronation ball monarchy and he is crowned by the highest religious person in the village because god wanted him to win and this gives him legitimacy as if God wanted him to winThen (in the middle): Middle Ages—Maybe law is actually something that humans created, who had the power to enforce is, in other words law is subjective, not objective divine creation Machiavelli, in latin he is writing that law is put into placeposit is the latin word now known as positive law. And this is the reaction to natural law Mid-evil ideas caused natural law to be essentially gone after thisFrench 1700s enlightenment, liberal literature of the time, revitalized the notion of natural law 1740s it was brought to the British by John Locke, life, liberty and property, then Jefferson picks it up andtakes it to life, liberty, and pursuit of happiness, major development in American historyLegitimacy natural law is because king is the sovereign power Positive is law that is legitimate because whoever or whatever is in power Natural law and positive law are the context at this point In the US—2 predominant schools in American legal history interpretationClassical formalism 19th century, rule oriented approach, integrity of the rule is vital, hard to be objectiveEasier to make a decisionPeach tree: everyone gets one and that’s that, no changing it.Legal realism reaction that came out of the 20th century and this one is clearing winning, says that the rule is important but the fairness of the result is more important Harder to make a decision, more things to take into account and considerOthers: Communitarianism Feminist legal studies women deliberately ignored in laws and need to be rewritten to consider themAssignment: read pieces online on Niikha about cave explorers and write a paper telling Herron what school they stand for Schools from the Spelucean article:5 people, stuck, will starve to death, but think to eat eachother, Wethermore says he doesn’t want to participate and then loses and is eaten, they are save, put on trial, and sentenced to deathTruepenny- gives facts, Chief judge, legal reasoning is the shortest, classical formalism, law is the law, affirms the decision, old way America interpretsFoster- natural law, they are a new society, not part of our society and they have the right to self govern, and they all agreed on this plan. So he votes to reverse. The old way for lawsWhen the reason for the law ceases to exist, then the law itself ceases to exist, ex: Peach tree….. so, this is not why these laws were put into place, it was the natural right of these men to self-governTatting- whining about how hard the decision is, making fun of judges that want easy decision-making, he’s like the hole in the middle and he’s none of the above Keen- we don’t have a choice, we aren’t the one who made the law, the Chief could change the law or choose to pardon them, writing in opposition of Foster and he says essentially who is the supremecreator of our laws? The legislator. Why? Because that’s what they do, they are the legislative sovereigns,so as such there laws should go even when I disagree with them. We have elected these people to make the law, so what they say goes. This is positive law. He votes to affirm the sentence. Modern reason for lawHandy-this is legal realism. He takes into account public opinion and the fact that people died saving these people. He thinks it’s ridiculous and wants to reverse. New way America interpretsThis ends in a tie vote, leaving Tatting to make a decision.Analysis: Fuller says legal realism is fundamentally based on fairness and natural law is based on fairness,legal realism was a product of natural law Fuller- is a natural law legal realistPositive law and classical formalism is based on rules and regulations, it is what it is Constitutional democracy- things hold true even against the will of the people These all have different functions? I’m not really sure what functions means.Illustrations of conflict between natural law and positive law can be found in Sophocles “Antigone” and Hermann Melville’s “Billy


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