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Legal Naturalism vs. legal positivism -think about the relationship in its practical context, more than an intellectually curiosity there are many fundamental things on the ground level to be able to discuss these Legal Positivism:What is it?-A law is a law – descriptive idea of law -letter of the law-The validity of law derives solely from political power -called “positive: because the law is whatever the sovereign puts into place—if we want to find out what the law is we find who put the law into place and that is the law -not necessarily positive in a legal or ethical sense -much more concerned what is legal vs. what is not legalLegal Positivism Applied to Readings-Five Minutes of legal Philosophy, Legal Positivism: a law is valid just because it is a law. He thinks this is curricular and morally dangerous. Ex: soldier vs. the jurists (even though soldiers are given an order they do not have to follow it if it goes against natural law or moral beliefs. Jurists on the other hand have a finite line in which they must follow. If the law is that statue they have to follow it) Legal NaturalismWhat is it?-we cannot study the laws as they are, without considering what it “ought to be”-there is a universal set of moral truths that should be the foundation for law -thinks about what ought to be vs. what is, looks more so at what is right and wrong -called Natural law because law has an essential nature that exists apart from political power (so are natural law and legal naturalism the same thing) –natural law is saying there is an essential relationship between law and the law that is laid down by the people -particular laws are only valid and virtue of their Legal Naturalism Applied to the Readings -Five Minutes of Legal Naturalism: our innate moral faculties must guide us in settling conflicts between law and justice. Extremes are more clear but not an easy task Legal Naturalism & Legal Positivism: -You can’t just follow the letter of the law because times and values change-can’t just read what is on the page but need to stretch the law to consider things that weren’t considered by the framers making the law when it was conceived because they couldn’t consider how society would change so drastically Deshaney Article & Legal Positivism and Legal Naturalism -Main legal conflict in Deshaney is between legal formalism and legal activism -Compare the brevity of the 14th amendment with the complexity of this case -Court’s task is to interpret complex fact patters in light of very concise laws -14th amendment is in question, and it was passed after the Civil War to address complex issues created by the abolition of slavery Legal Positivism:-Majority Decision--the case is based on “undeniable tragic” facts, but the Due Process Clause does not extend to Joshua’s particular situation -The court shouldn’t yield to “impulse of natural sympathy” for Joshua and his mother -Not going to stretch the 14th amendment because we feel bad for Josh -legislative reform is the proper avenue for justice in this case, not judicial expansion of the 14th amendmentFormalistic approach in application of case law:-Estelle v. Gamble-was injured in prison -prison staff did not provide them with adequate medical care-Supreme Court ruled in his favor-Stands for basic idea you have rights to medical care if you are in jail or prison -Youngberg v. Romeo -Romeo was in a state psychiatric facility -Said he had similar rights declared by Estelle -stands for the idea if you are a patient in a psychiatric hospital you have basic riht to care and conditions and cannot be locked up for not reasonable reasons -also stands for the idea when the govt. deprives you of the capacity totake care of yourself, it must provide you with substantive due process Legal Naturalism: -Dissenting Opinion--Justice Brennan criticizes the majority for giving a “stingy scope” to prior rulings in Estelle & Youngberg-They are being literal and missing the point -“The court itself retreats into a sterile formalism” (14/322) -I’m confused about the difference between legal naturalism/positivism and the difference between legal activism/realism -Legal Activism of Blackmond: -see more of a stretch in the law.-Looks at the laws underlying intent -don’t come to the 14th amendment with a dry, literal attitude about what the clause says -the 14th amendment was created in post-antebellum times (This was a time period before the Civil War. Dred Scott vs. Sandford—declared that slaves were not citizens but were property) -when people lack moral courage in interpreting the law we end up with people being left in the state of servitude (^) -you can be compassionate and still do right by the law -“I would adopt a sympathetic reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the providence of judging.” Law & Violence What is it?Lecture:-To suppose that legal interpretation and violence are separable is to ignore the true nature of the law -When a judge interprets legal texts, people can (and do!) lose life, liberty, property, rights etc. -Legal interpretation by its very nature signals and occasions violence-Signals violence: sends a message indirectly or directly that says violence may ensue Ex: why cops carry a gun, taser etc. -Occasions violence: self defense, judge sentencing people: when the judge issues his or her directions reality changes -The law is not what judges say but what they do – they deal pain and deathLegal Interpretation (1) is a practical activity(2) intended to create actual and potential violence (and law has to have the effective capacity to create potential of violence or it cannot be successful) (3) and to do so effectively (small subset of situations where violence is required, but we expect the police to show up and always win. That is what society expects and if you don’t do that then you have no legitimacy)Legal Interpretation is incomplete without violence The Law needs violence & violence needs the law The Law Needs Violence: because although reasonable people can agree to disagree over whether force should have been use etc. what constitutes a situation where violence is necessary will vary between people, but everyone agrees that violence is necessary at some times Violence Needs the Law: to be justified. Law provides integrity (any act in the world needs to be framed in a certain way) Notes from

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UW LSJ 375 - Legal Positivism

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