What is law?

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  • Created by: Nikki
  • Created on: 07-04-15 20:35

Law as rules

Rule bound theory linked to state

John Austin

  • rule-centred theory
  • laws 'properly' so called' and 'improperly so called'
  • object of legal science are positive laws

Positive laws

  • command set by sovereign 
  • back up by threat of sanctions
  • to people in a habit of obedience

Legal positivism

  • law separate from moral rules --- posibility of overlap
  • distinction between what law is and what law should be
  • 'The existence of law is one thing; its merit or demerit is another.'
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Lectures on Jurisprudence - Austin

Laws set by God to men = Divine law or law of God

Positive morality = law set by men to men, not by political superiors, and set and enforced by mere opinion

Sanctions are not limited to punishment but do not include rewards

Objects improperly termed laws = rules set and enforced by mere opinion

Greater eventual evil and greater chance of incurring it = greater strength of obligation = greater chance of obedience

Law = command which obliges a peron or perons and obliges generally to acts or forebearances of a class

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Lectures on Jurisprudence - Austin (2)

Objects improperly termed laws (not being commands) which yet may be included within province of jurisprudence:

  • declaratory laws
  • laws abrogating or repealing existing positive law
  • imperfect laws

Laws (properly so called) which may not seem imperative:

  • laws which merely create rights --- BUT every law that appears to create right also denotes a corresponding duty
  • customary laws --- excepted from the proposition 'that laws are a species of commands'

Term law shall be limited to laws which are imperative, unless extended expressly to laws which are not

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Grudge Informer Case (1)

  • After WW2, German woman prosecuted for denouncing her hsuband to authoriites in accordance with anti-sedition laws of 1934 and 1938
  • Husband has made derogatory remarks about Hitler
  • Wife told authorities
  • Husband prosecuted -- convicted of slandering the Fuhrer
  • Offence carried the dealth penalty
  • H sentenced to death -- not executed -- sent as soldier to Eastern front 
  • H survived war -- instituted proceedings against wife on return
  • W argued she ahd not committed a crime -- court had sentenced H in accordance with law of the time
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Grudge Informer Case (2)

JUDGMENT

  • First instance -- W acquitted -- H had broken valid law and sanction came thorugh 'properly carried out judicial process'
  • CA - overturned decision - emphasised W not under any legal duty to report H - used law that most GER knew was designed to toerrorise population & which many knew to be immoral
  • CA reasoning did not depend on claim that Nazi statutes in issue violated laws of nature -- law, while unfair, did not reach that point because did not command any positive conduct, only an omission
  • CA determined to reach conclusion that W guilty w/o incriminating judges -- contrived reasoning
  • If statutes had reached pitch of injustice sufficient to violate laws of nature, court-martial judges would be guilty of a crime, as would W be by implication
  • W concited of 'illegally depriving another of his freedom' -- crime under Penal Code 1871
  • CA said Nazi laws were contrary to sound conscience of justice of all decent human beings
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Hart/Fuller Debate (1958)

HART

Believed law is valid when it exists as a social fact

Nazi laws, however reprehensible, were valid laws when enacted

Post-war GER courts had option of either leaving Nazis unpunished or enacting retrospective criminal legislation

Some laws 'may be laws but are too evil to be obeyed'

Validity of laws not based on moral content

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Hart/Fuller Debate (1958)

FULLER

Laws are not just valid because they exist as a matter of fact

Must meet moral requirements

'fidelity to legality' -- include requirements that laws are public, clear, non-contradictory, proscriptive, reliable, possible to comply with and applied as articulated

Some Nazi laws so reprehensible that they were not laws at all

Post-war GER courts can legitimately refuse to allow individuals to escape punishment

Radbruch - statutes lack force of law when they contravene fundamental principles of morality

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Law as politics - American legal realism

AMERICAN LEGAL REALISM

First emerged in early 20th century

Difference between 'law in books' and 'law in action'

Focus away from principles or rules to the people who interpret the law

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John Griffiths

Review of cases in UK shows that vast majority are decided in conservative manner

Outcomes cannot be explained with reference to rules alone

Need to look at the judges

  • from very narrow socio-economic and political background
  • white, male and middle-aged

As members of country's elite, the decisions that judges reach reflect and reinforce the interests of that elite

Judges are party of machinery of authority within State -- cannot avoid making political decisions

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Law as politics: Socio-Legal Studies

SOCIO-LEGAL STUDIES/LAW AND SOCIETY

Difference between 'law in books' and 'law in action'

Broader focus on different actors within legal system

Multiplicity of voices is revealed and power relations that govern them

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Sally Engle Merry

Study of working class Americans as they struggle to find justice through formal legal system

What goes wrong in the process?

Rule-centred approaches cannot give satisfactory answer

Need an empirical approach -- looks at what happens as people work their way through the formal system

Courts divert ordinary people's problems into 'moral issues' that are not serious enough to warrant legal enforcement

Courts are guilty of an act of 'cultural domination'

Silence the voices of those who have less power and write their experiences out of official narratives of the law

Thinking point -- will cuts in legal aid reinforce 'acts of cultural domination' in the UK?

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