Jurisprudence short version

What is law; positivisim; natural law; adjucidation; sociological law; critical legal studies

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  • Created on: 11-05-15 20:11
Austin 1830
Commands issued by sovereign enforced by sanctions, not habitually obeying another and habitually obeyed by bulk of society. Laws properly and improperly so called. Purpose of law is happiness of majority
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Hart 1954
Linguistic analysis of law from context. Law union of primary and secondayr rules (recognition, change and adjucation). Internal aspect to rules - convention>conviction. Critiques Austin (obligation/obliged; sanctions; customs). Moral not necessary
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Hart-Fuller Debate
Where law contravenes the most basic principles of morality can it still be construed as law? (Radbruch). Hart - confuses idea, but system would be unstable & may not be obeyed.
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Hart-Dworkin Debate
Is law only rules with an open texture of language or do hard cases encompass principles too?
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Hart-Devlin Debate
Legitimate to criminalise behaviour as socially unacceptable or must there be identifiable harm? Hart - law can cover immorality but should not criminalise where someone thinks wrong
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Bentham
Utilitarianism – Law is assemblage of signs declaring a volition, adopted by sovereign, concerning conduct of subjects, utility act as motive. Common law vague & uncertain (judge&co). Law as in practice- natural law nonsense on stilts.
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Hans Kelsen
Pure theory of law - oughts and norms, derived from a basic Grundnorm, allowing for sanctions. Pure from moral or sociological aspects
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Raz
Exclusive legal positivist - Follows Hart, but validity of law does not depend on morality. Law must have authority, imposes duties and is autonomous. Rule of law – clear, prospective etc.
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Hagerstrom 1900
Scandinavian legal theorist - strip definitions and meanings that are not empirically verifiable. Instead many concepts e.g. rights have psychological effect
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Augustine
‘Justice being taken away, what are kingdoms then but great robberies?’
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Aquinas 1270
Lex aeterna, naturalis, humana, divina - law from divine reasoning
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Locke 1600s
Laws arising from state of nature – government and law exist to secure natural rights
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Radbruch 1946
Positive ‘law is law’ arguments are what left Nazi Germany defenceless from such laws.Judges can disappply where "unbearably injust" or in "deliberate disregard" of human equality before the law
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Fuller 1969
Law is the enterprise of subjecting human conduct to the governance of rules. Rex failed law maker - 8 rules of inner morality. Morality of aspiration and duty. Internal/external morality
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Finnis 1980
Restating Aquinas. 7 self evident basic goods to achieve common good. Unjust law impose moral obligation. Real insider perspective
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Alexy 2002
Law is norms that claim correctness, not unjust in the extreme and compromises other principles to do so. Dual nature – social practice and claims to correctness
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Mark Murphy 2006
Weak reading of natural law tradition - Any rule that looks like law but does not provide decisive reasons for action is defective as law
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Beylevelde and Brownsword 1986
Strong NTL reading; unjust law not law. Law is morally legitimate power. Generic consistency (universal basic rights owed)
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Simpson (Adj)
Common law theory - unadulterated system of customary law made of established customs and rules.
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Bentham (Adj)
Rational law making is comprehensive written code - Judges distort & create parallel law (against “judge & co”). Utility to make law clear.
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Austin (Adj)
Judge made law is problematic – subordinate legislators or having tacit sovereign approval*? But is necessary and highly beneficial
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Holmes 1897 (Adj)
American Realism - Law in action, not determined by paper rules; development by accurately measured social desires rather than tradition (law as ‘bad man’ – how affects people not underlying morals)
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Jerome Frank (Adj)
Scepticism - Law does not consist of rules from which deductions are made. Fact scepticism – impossible to predict law since at higher courts impossible to tell what facts will emerge and what case will be decided on
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Llewellynn 1941 (Adj)
Grand style – critical analysis of precedents, distilling a principle then considering consequences on a policy basis
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Hart 1954 (Adj)
Analytical - What is law is separate to what judges’ use – social Q whether judges use ‘law’ or not. Focus is the open texture of language – judges have discretion in penumbra and become rule makers
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Dworkin 1967 (Adj)
Constructive - Law as integrity [fit & justification] - what judges’ use is law & principles of ‘individual group rights’ part of law (not conclusive, withstand conflict, have weight) (Riggs v Palmer; Hercules J), cannot be identified by RoR
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Alexy 2002 (Adj)
Critique/Dworkin – difference of principles/rules is substantive, rules & principles not in direct conflict, ‘fit’ is a continuing obligation of political morality
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MacCormick 1978 (Adj)
Easy/hard cases – where second order justification is needed (desirable, defensible and consistent) – Dworkin’s principles simply part of argument/justification & not independent
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Fuller 1969 (Adj)
Speluncean explorers – Trupenny (clemency for exec – affirms ); Foster* (purposive – set aside); Tatting (competing rationales – withdraws); Keen (law clear – affirms); Handy (public opinion; set aside)
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Comte 1800s (Soc)
Father of sociology – study society to understand humans
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Ehrilch 1800s (Soc)
Living law – interpersonal relationships e.g. businessmen’s “use” of contract law; justice corrects balance of interests
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Petrazycki 1800s (Soc)
Law as legal experiences with rights & duties - Positive v intuitive law; official v unofficial law [living law]
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Cotterrell (Soc)
State law central, but other law exists sociologically on the periphery (i.e. living law)
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Donald Black (Soc)
External view - Law is only the observable acts, not the rules/norms
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Pound 1940 (Soc Juris)
Law is a way of reconciling social interests (individual, public, social). Should harmonise law in action with law in books
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Llewellynn 1940 (Soc Juris)
Law jobs must properly be performed groups to survive and function (Prevent conflict, resolve disputes, accommodate changes, recognise authority, establish rules)
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Summer & Howard 1972 (Soc Juris)
Complex functionalism - Distinguish functions of law (ends) from the modes (means)
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Durkheim 1893 (Soc Law)
‘Social solidarity’ in the ‘conscience collective’ holds society together; law helps transition from mechanical to organic solidarity; crime inevitable and integral to society
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Habermas 1929 (Soc Law)
Discourse theory - legal norms only valid if persons have assented in rational discourse; legitimacy from ‘communicative rationality’ deliberated through ‘deliberative democracy’; law is structure of debate; proceduralist paradigm
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Weber (Soc Law)
Internal perspective - Typologies of law (rationality & formality) and (mode of creation, formal qualities, justice attained); Modern formal-rational law precondition for capitalism
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Teubner (Soc Law)
Autopoietic - Weber’s formal rational, society as discreet systems, law is autonomous and responds to and affects other systems without directly causing change
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Foucault (Crit)
Postmodernism - Law is element of expansion of powers exercise as reason (e.g. Bentham’s panopticon to control behaviour and watch)
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Nietzche 1880s (Crit)
Law as self interest and power; morality, justice and law stop expression of being (Master v Slave morality – morality good for masses, but exceptional and unique people ought follow inner law)
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Freud 1900s (Crit)
Law is explained by reference to psychological longing for father-figure/god, long to be subject even against interests
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Marx 1800s (Crit)
Historical materialism (Hegelian) in terms of material needs, history of class struggles leading to revolution and socialism; law as crude materialism and oppressive, reflects ideology of bourgeoisie, not special
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Pashukanis 1920s (Crit)
(Marx) Law arising from need for contract; needs of commodity form of production, capitalist law should thus not be needed without capitalism
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Renner 1949 (Crit)
(Marx) To understand law must penetrate economic base, form of law has not changed only functions e.g. land ownership; thus law reshapes social conditions
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Hunt 1976 (Crit)
(Marx) Law necessary as coercion and ideological domination – has ideological and political value
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EP Thomson (Crit)
Law is not always oppressive, structures relationships etc. ‘Rule of law’ is valuable, power-restricting, freedom-enhancing, structuring of social relations. Unpopular among Marxists..
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Kennedy 1979 (CLS)
Fundamental contradiction – strong (individual v community) and weak (many related fundamental); judges make political choices; no balance is superior
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Unger 1976 (CLS)
Law in pursuit of post-liberalism, cause by instability of ‘rule of law’ which masks inequality; participatory government
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Wollstonecraft 1792 (Fem)
Liberal feminism – law as equal opportunity, acts as neutral medium
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MacKinnon 1987 (Fem)
Radical feminism – Gender socially constructed, requires affirmative action; consciousness-raising- should identify norms that oppress or aren’t liberating
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Gilligan 1982 (Fem)
Cultural feminism – feminine virtues should be promoted in law as typically ethics different, case specifics, maintaining relationships and caring
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Frug 1992 (Fem)
Postmodern feminism - when ‘woman’ cannot be coherently understood will oppression be fatally undermined; law etc. needs reconstruction
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Crenshaw 1998 (CRT)
Failure of law to expose hegemonic role of racism in upholding otherness and inferiority
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Balkin 1993 (CRT)
Rational reconstruction and deconstruction as interpretative choices
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Card 2

Front

Linguistic analysis of law from context. Law union of primary and secondayr rules (recognition, change and adjucation). Internal aspect to rules - convention>conviction. Critiques Austin (obligation/obliged; sanctions; customs). Moral not necessary

Back

Hart 1954

Card 3

Front

Where law contravenes the most basic principles of morality can it still be construed as law? (Radbruch). Hart - confuses idea, but system would be unstable & may not be obeyed.

Back

Preview of the back of card 3

Card 4

Front

Is law only rules with an open texture of language or do hard cases encompass principles too?

Back

Preview of the back of card 4

Card 5

Front

Legitimate to criminalise behaviour as socially unacceptable or must there be identifiable harm? Hart - law can cover immorality but should not criminalise where someone thinks wrong

Back

Preview of the back of card 5
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