Legal 250 Midterm Study Guide 1 Natural Law a Derive from transcendent principles of goodness morality laws standards which laws should be held before they are considered a law iv Criticisms i ii iii Sources of Natural law 1 Religious texts 2 Divine revelations 3 Careful consideration of human nature and nature Assumptions of natural law 1 Unchanging over time 2 Does not differ from society to society 3 Only laws in accordance with natural laws have the right 4 1 A just man made law common good authority a Made for the benefit of society as a whole for the b Made my someone who has not overstepped c Burden is imposed FAIRLY on all citizens to be called a law Is accessible to all through use of reason Aquinas 1 Skepticism of a universal moral code 2 Our ability to acquire national law that is not coming from a place of self interest i e going to heaven karma Is vs Ought dilemma a Just because something is doesn t mean it ought to be 3 It doesn t matter who you are who you know 1 Laws should be universal general 2 Laws should be transparent a a Need to know how laws are made b Need to know where to find the laws 3 Laws should be understandable and clear 4 Laws remain relatively stable through time 5 Laws should be administered as they are written a Applied as announced 6 Laws should not be retroactive a Taking effect from a date in the past b I e criminalizing actions that were legal when committed 7 Laws should not contradict each other 8 Laws should not be impossible to comply with v Tenets of procedural justice b People in Natural Law i Locke 1 Everyone has the inherent right to life liberty and 2 3 property It is the government s job to secure this rights If the government fails to do this people have right to overthrow it ii Jefferson 1 Declaration of Independence a The right to life liberty and pursuit of happiness iii King 1 Civil Disobedience i ii a Letters to Birmingham b Uses natural law to explain and justify actions Just law uplifts human personality Unjust law degrades the human personality c Those who are willing to protest a law and face consequences of protest highest respect for the law 2 Counterarguments to King a No unjust laws in a democracy i Ways to change laws b Leaving it to people to decide unjust v just 1 Courtrooms elections chaos anarchy iv Fuller v i e justice 1 Law guides human behavior towards a larger purpose 2 Law making moral when procedures lead to justice 1 Aquinas in the content of the law 2 Fuller in procedures followed by those who make the Fuller vs Aquinas Where is morality law apply the law procedural justice 1 Still says nothing about the actual content of the law vi Critiques of Fuller c Nazi grudge informant Natural Law i ii Positive Law 1 Nazi statutes could never be considered law as they went against basic morality 1 As horrible as they were Nazi statutes were still 2 Retroactive laws can be applied considered the law 2 Positive Law a Identified as the law in society by socially accepted and acknowledged law maker i ii iii Assumptions of legal positivism Austin s command theory of law 1 Laws made through systematic observation of society 2 What is law is separate from what law ought to be 3 Morally neutral law is achievable and desirable 1 The command of a sovereign ruler 2 Ruler is backed by force or threat of a force 3 Monarch is habitually obeyed 4 Ruler does not habitually obey anyone else 1 Who is a sovereign in a democracy 2 Habitual obedience is not guaranteed even in monarchy 3 Can t account for laws that regulate conduct between individuals wills contracts Just because you can command it and back it by force 4 does not make it a legitimate law Austin s critiques iv Hart s primary and secondary rules 1 Primary rules 2 Secondary rules a Laws that apply directly to citizens usually commands to abstain a certain behavior i I e Speed limits a Rules that govern creation amendment and repeal of primary rules i ii I e Majority of House of Rep and Senate must vote in favor of a bill for it to pass I e Will must be signed in front of someone who can attest to the fact that the person was competent when signing b Types of secondary rules Rules of change i ii Rules of adjudication 1 Empower people to create new a Rules regarding elections primary rules 1 Empower people to decide if primary rule has been broken a Rules surrounding how judges are selected iii Rules of recognition 1 Criteria to decide whether or not a law is part of the legal system or not a Constitution rules regarding 3 A valid legal system passing laws a Citizens accept follow primary rules b Society s officials accept secondary rules as standards of behavior v Criticism of Hart What happens when language is unclear in a situation 1 Hart s response i the rule applies not obvious that the rule applies a Core of certainty most cases it is obvious that b Penumbra of doubt small number of cases it s Example Vehicles are prohibited from parks 1 Core of certainty woman drives 2 Penumbra of doubt child plays c When there are gaps in the law moral criteria comes in to play Hart says NO although gaps occur it does not involve reference to a higher moral code SUV into park with toy car in park 3 Legal Consciousness different critique of positivism a Pig keeping in NYC i Did people have the right to keep pigs on the street 1 Legal positivism not after decision of People v Harriet 2 Legal consciousness depends on who you ask a Some may say pigs acted as street cleaners b Others will says pigs are dangerous attacking ii Pigs remain on the streets children 1 Positivist response law is law even when not enforced b Criticisms today c Hartog s view Often different conceptions regarding what law is Different institutional authorities sending mixed opposite signals of what the law is Law area of social conflict Legal positivism allows one group to impose set of authoritative interpretations on the rest of the community 1 Critiques of Hartog a Secondary rules specify which authority gets the b Case of the pig is an exceptional case to make last word generalization about the nature of the law d People v Harriet 1803 Pigs public nuisance Harriet convicted e Legal consciousness vs natural and positive law 4 Selecting judges i ii iii iv i ii i a Who makes the law Legal Positivism c i ii i ii iii b Umpire v activist Federal President Congress judges citizens State Legislature governor judges citizens Local Town meeting city council mayor town city managers county legislature citizens Umpire