Characteristics of human beings:
Social beings
Failure to protect property
means we get to be the ones we
reclaim our rights to protect our
property.
Political beings (Polis as part of
our nature)
There are values. We discover them
through reason.
Aristotle
The source of the values is our
human nature.
Plato: There are absolute values.
One of them is justice.
Justice: Political justice is a form of natural If law does not pursue justice, it is wrong.
justice. In the best possible political
community, we have political justice (which
comprises of distributing and corrective Justice is a universal value.
justice)
Plato
He made 3 rules of law of nature
we as human beings endeavour peace, we want
that so we stay alive. To exist.
We mutually exchange rights to achieve the peace
We need to have someone to observe the
agreements(political sovereign)
principle claim: what
naturally is, ought to
be
Made my Matthew
how to escape this
horror? social contract!
British, nasty hobbes
Revolution is allowed and short Introduction
when government is to law
unjust/authoritarian
types of law
almost total
This movement developed as a
bliss! reaction to the belief that things exist
beyond of our realm of senses, that
life before the we should accept things because the
Protection of property as a natural positive pope/king says so. 5 key
basis of social contract; its social contract features civil
consequence? Positive Law as a general 1Law is commands of human beings.
scientific approach 2No necessary connection between law and morals
exists.
3The analysis of legal concepts is worth pursuing and
the only genuine knowledge is scientific is distinct from sociological and historical enquiries.
We come together to
Locke knowledge 4A legal system is a closed legal system, ie.
promote our property scientific knowledge emerges only from the
positive confirmation of theory through the
application of rigid scientific methods
A statement is true, false or meaningless subject One can deduce decisions from predetermined legal
to verification through finite means rules by logic
5Moral judgments cannot be established by rational
arguments, evidence and proof, whereas facts can
Law as commands backed by sanction?
General will is not an
accumulation of individual wills; it
is not about class interests, or
group interests.
rosseau
Need to reform the common law and the judicial system
Bentham Why? Common law was conceived as expression of
custom embodying natural reason
An agreement between individual But Bentham considered that contrary to reason stood
for contrary to what I like
and community, by virtue of which
Judge-made ex post facto law - Dog law criticism
the first becomes part of the general
will
General will is indivisible
and inalienable
Law must become more determinate to citizens
How? Codify the law.Entrench the
accountability of the judges through
Publicity of process and decisions
Linguistic simplicity
Rules of Recognition: Rules which provide
the criteria by which the validity of the rules Austin
of a system is decided. They impose a duty
aquina on officials to follow some rules.
Law as commands or imperative backed by
sanction. Law is made by the sovereign to which
others subjectv. Only positive laws, i.e. laws set
Aristotle was right; we are destined by the sovereign can be analysed and examined.
to develop. One of the stages in The rest are not legal or subject to legal scrutiny
human development is Christinity. (e.g. Laws of God, laws improperly so called etc
Rules of Adjudication: Rules that
Therefore the polis must be confer power to individuals to pass
judgment in cases of breaches and
Christian. power to sanction.
moderen legal
positivism
Acquinas 4 categories
Rules of Change: Rules that confer power
of law on certain individuals or groups to enact
legislation on the basis of certain procedures
(e.g. Parliament; how to make laws? Three main claims about the nature of Law
Majority voting) Law and morality are separate (separability)
There are conditions which determine legal validity
on the basis of how and by whom law is made
(pedigree)
Judges decide hard cases by making law.
(discretion)
For a legal system to exist, therefore,
Divine reason (Lex Aeterna) Valid obligation rules must be generally
observed
Natural Law (Lex Naturalis) Officials must accept the secondary
Divine law (Scripture religious rules
positive law)
Human law (human posited law)
Law as a science
Law is a social phenomenon: it can be understood
and explained only by reference to actual social In sciences we use time and space to understand
Natural law: result of eternal law / practices of a community the world. Time and space are human constructions.
Law and morality are separate. However, Law has a In the same way, we should try to understand law.
Divine reason minimum content of natural law as a consequence of BUT: we should understand law pure
Discoverable by human beings the human condition. Kelse
Tool to discover it: reason
Pure theory of Law:
Law is composed of norms of positive law, which
prescribe that
Old positivists: Theory of sovereignty > legal Sole concern of law is the monopolization of
If certain conduct (X) is performed, then a sanction
Law is not only commands backed by sanction authority is expressed due to the habit of obedience force.
(Y) should be applied by an official to an offender.
Law also includes Rules of Recognition of a group of people All other concerns (history, sociology etc)
If X, then Y.
RULES OF RECOGNITION: Fundamental rules Hart: rules are valid members of a legal system only are irrelevant.
What does this mean?
What happens when there is a which are acknowledged by those officials if they satisfy the criteria laid down by the rule of Sole concern of law is the monopolization of force.
conflict between natural law and administering the law as the rules that specify the recognition, such as what the Queen enacts in
criteria of legal validity which certify whether or not
posited law? Lex iniusta non est lex? a rule is indeed a rule.
HLA hart
Social Rules composed ofMorals
etc Characteristics of the human condition: The Grundnorm exists in the juristic conscience
Legal Rules; distinguished in Vulnerability It is
Primary Rules Approximate equality the answer to the question how i.e. under what How to select it? Efficacious (i.e. has the ability
This does not mean a duty of disobedience to Secondary Rules, which are Limited altruism condition are these juristic statements concerning to produce a desired result) (every by and large
unjust law. Rules of change Limited resources legal norms, legal duties, legal rights and so on effective coercive order can be interpreted as an
It means that the maker lacks moral authority, Rules of adjudication Limited understanding and strength of will possible? objectively valid normative order)
but exceptionally the law may still need to be Rules of recognition Why should law be obeyed?
observed to avoid scandal or civil disorder. How to select it? Efficacious (i.e. has the ability to
HLA Hart
s n

Parliament is law; produce a desired result) (every by and large

All other concerns (history, sociology etc) are
effective coercive order can be interpreted as an
irrelevant.
objectively valid normative order)