1 / 17

Constitution, Society, and Leadership Week 5 Unit 1 Concepts of Law: Topic Introduction

Constitution, Society, and Leadership Week 5 Unit 1 Concepts of Law: Topic Introduction. Christopher Dreisbach, Ph.D. Johns Hopkins University. Concepts of Law: Topic Introduction- i Review: Three Basic Theories- i. So far: three basic theories of law Natural Law Theory Legal Positivism

byron-vaughan
Télécharger la présentation

Constitution, Society, and Leadership Week 5 Unit 1 Concepts of Law: Topic Introduction

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Constitution, Society, and Leadership Week 5 Unit 1 Concepts of Law: Topic Introduction Christopher Dreisbach, Ph.D. Johns Hopkins University

  2. Concepts of Law: Topic Introduction-iReview: Three Basic Theories-i • So far: three basic theories of law • Natural Law Theory • Legal Positivism • Legal Realism • Each addresses at least three questions • Where does law come from? • What is the relationship between law and morality? • Are rights under the law inalienable or conferred?

  3. Concepts of Law: Topic Introduction-iiReview: Three Basic Theories-ii 1. Where does law come from? • Natural law theory: law comes fromsome source external to humans • E.g., God or nature itself • Legal positivism and legal realism: law is made by humans • Positivism: the legislature makes law • Realism: the judges make law

  4. Concepts of Law: Topic Introduction-iiiReview: Three Basic Theories-iii 2. What is the relationship between law and morality? • Natural law theory: law and morality walk hand in hand: to obey the laws of nature is to act morally and vice versa • We shall see some attempts to separate natural law from morality • Positivism and realism: a law can be valid even if it is immoral or prescribes an immoral act • But…

  5. Concepts of Law: Topic Introduction-ivReview: Three Basic Theories-iv • We may consider a challenge to this characterizationof positivism and realism • H. L. A. Hart: Primary and Secondary Rules • Primary: A basic rule or law • Secondary: Rules for making rules: • Recognition: How do we know a law is a valid law? • Change: Who can change a law and how? • Adjudication: Who can judge and how?

  6. Concepts of Law: Topic Introduction-vReview: Three Basic Theories-v • Some might argue that secondary rules are moral rules • E.g., A judge is morally obliged not to knowingly base a decision on a false premise • Hart, a positivist, does not claim that positive law is therefore connected to morality • But his primary/secondary distinction might lead others to make that claim

  7. Concepts of Law: Topic Introduction-viReview: Three Basic Theories-vi 3. Are rights under the law inalienable or conferred? • Natural law theory: some rights are inalienable • Since the laws that grant them are absolute • Realism and positivism: all rights are conferred • Since the laws that grant them may change

  8. Concepts of Law: Topic Introduction-viiReview: Other Questions-i • Some other questions to ask as we consider concepts of law…

  9. Concepts of Law: Topic Introduction-viiiReview: Other Questions-ii • Which is the more basic force behind a law? • Reason or will? • What validates a law? • Rationality? • Force? • Something else?

  10. Concepts of Law: Topic Introduction-ixReview: Other Questions-iii • What is the purpose of law? • Coercion? • Education? • Arbitration? • Peace? • Order? • Protection of Property (Locke)? • Self-Preservation (Hobbes)? • Something else? • What is the relationship between law and justice?

  11. Concepts of Law: Topic Introduction-xReadings • Our topic this week is concepts of law • Reading: Feinberg & Coleman, Part I: The Nature of Law

  12. Concepts of Law: Topic Introduction-xiRequired Readings-i • Chapter 1: The Natural Law Tradition • Thomas Aquinas, Selections from On Law, Morality, and Politics • Lon L. Fuller, Eight Ways to Fail to Make Law • Mark C. Murphy, Natural Law Jurisprudence • Jeremy Bentham, Of Laws in General • Lon L. Fuller, The Case of the Speluncean Explorers

  13. Concepts of Law: Topic Introduction-xiiRequired Readings-ii • Chapter 2: Legal Positivism • John Austin, A Positivist Conception of Law • H. L. A. Hart, Law as the Union of Primary and Secondary Rules • Jules L. Coleman, Negative and Positive Positivism • Joseph Raz, Institutionalized Normative Systems

  14. Concepts of Law: Topic Introduction-xiiiRequired Readings-iii • Chapter 3: Legal Realism and Skepticism • Jerome Frank, Legal Realism • O. W. Holmes, Jr., The Path of Law • K. N. Llewellyn, Ships and Shoes and Sealing Wax • Chapter 7: Is There a Moral Obligation to Obey the Law? • Plato, Crito • M. B. E. Smith, Is There a Prima Facie Obligation to Obey the Law? • Martin Luther King, Jr., Letter from Birmingham Jail

  15. Concepts of Law: Topic Introduction-xivRecommended Readings-i • Chapter 4: Principles of Legal Interpretation • Ronald Dworkin, Integrity in Law • Antonin Scalia, Common-Law Courts in a Civil-Law System • Ronald Dworkin, Comment

  16. Concepts of Law: Topic Introduction-xvRecommended Readings-ii • Chapter 5: Critical Theory • Jurgen Habermas, Constitutional Democracy: A Paradoxical Union of Contrary Principles? • Catherine McKinnon, Difference and Dominance: On Sex Discrimination • Chapter 6: International Law • H. L. A. Hart, Is International Law Law? • U. S. Supreme Court, Roper v. Simmons

  17. Constitution, Society, and Leadership Week 5 Unit 1 Concepts of Law: Topic Introduction Christopher Dreisbach, Ph.D. Johns Hopkins University

More Related