Phil 2282 Study sheet exam one 1/20/2017 J. Collins Our first exam is Thursday, February 2. There will be a few short essay questions (twoIf you want to learn more check out Li You: Teacher, How are you?
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or three paragraphs) and a few short answer questions. You may send me trial versions of your answers, and I will let you know if they need improvement. Austin’s command theory of law  How does Austin define “law” in the most general sense of the term (so as to apply also to divine law and conventional moral law)? See Austin, p. 33. Austin’s defines law by stating that “Laws in the most general and comprehensive sense are rules laid down for the guidance of the intelligent being by an intelligent being with power over him or her.” He goes further in defining law by stating that laws are commands given by a sovereign of a state. He also goes further into describing a sovereign as someone who is in charge and has to answer to no one. For examples such a king or queens in a monarchy. Austin’s defines Divine law as a law set by a god. Such as the ten commandments that aren’t willing to be changed and negotiated for anyone. These laws are a direct link with morality. Stated by Martin Luther King Junior himself, “there is no law without morality. So a conventional/moral law are laws that are laws enforced by the people.  How does Austin define “the law” (i.e. human positive law)? See p. 12 in Reidy. You should explain what he means by “command” and “sovereign.” Austin’s defines law as a set of “Set of general prospective commands issued by the sovereign of a state to the subject of that states.” Austin’s define commands as “expressed desires for the determine conduct backed by a credible threat of coercive sanction.” He also defines a sovereign as “a person to whom a bulk of population is habitually obedient and who is habitually obedient to nobody.” So in Austin’s perceptive laws are a set of prospective expressed desires to determine conduct backed by a coercive force that applies to all or nearly all subjects of the states issued by a person who above the law and answers to no one. Hart’s criticisms of Austin’s theory of law  Which kinds of law did Hart think Austin’s theory did a particularly bad job of characterizing? Explain why in a paragraph or so. The contract, probate, and common laws are real laws however there not commands from a sovereign to Hart. Since they are not commands from a sovereign, then they can’t be laws given Austin’s definition of a human positive law, which states laws are a “set of general perspective commands issued by the sovereign of a state to the subject of that states.”  What is Hart’s objection to Austin that relates to legal systems in constitutional democracies? Explain. Harts Objection to Austin’s laws that relate to legal system constitutional democracies are that According to Harts definition of law then there must be a sovereign who make laws and rules, and a sovereign is “a person to whom a bulk of population is habitually obedient to and who is habitually obedient to nobody.” So according to Harts in his perceptive, he’s objecting Austin view because a sovereign is a person who is above all law and has to answers to no one, but since this doesn’t exist in constitutional democracies then there must be no laws, and that’s just crazy.  What is Hart’s objection to Austin that relates to the succession of sovereigns? Explain, in a paragraph or so. Harts objection to Austin’s secession of sovereigns is that given Austin's definition of a sovereign, which is “a person to whom a bulk of population is habitually obedient and who is habitually obedient to nobody,” ” it is hard to see how laws can service a succession of leaders. The new leader can’t be a sovereign, so there can’t be any new laws after a succession of power. Hart’s theory of law  Explain the following concepts: primary rule, secondary rule, and rule of recognition, and give examples of all three. Primary rules govern conduct, and an example of a primary rule is laws prohibiting theft. Secondary rule are rules are primary rules on how to identify, create, repeal, alter, enforce and adjudicate them, an example of a secondary rule is a contract law rules allowing people to form contracts. Rules of recognition set the criterion and criteria must be met before any rule or to count as a real rule or valid legal rule. Rule of recognition is a master rule. What it also tells is what is the most fundamental of secondary rules are such as what the constitution or the king or queens says.  What does Hart think is the difference between a prelegal society and a society with a system of law? Explain one reason that it seems better to have a system of law. Harts thinks the difference in prelaw societies and legal law systems is that’s societies with only primary rules are prelaw, having secondary rules makes changes easier and more efficient. However, a law system is a union of two different types of rules.  Putting all these concepts together, how does Hart define a legal system? Hart defines a legal system as an “a system of laws is the union between two types of rules primary and secondary. Primary rules govern conduct, and secondary rules govern the creation, identification, repeal, change, etc. of primary rules. For the above to be a law, they must emanate a form fundamental rules of recognition which are not themselves a part of law. Natural Law  In what way does a natural law theorist see the law as similar to arithmetic or the sciences? Natural law theorist always think that there are morals truths out there to discover  What two possible sources of objective moral law did we discuss? The two possible sources of objective moral law we discussed in class are God and reason.  What is the difference between the mala in se and the mala prohibita? Give an example of each. Mala in se means wrong in itself for example. Murder, theft, rape. Mala prohibita means wrong because it prohibited, for example, driving on left side of road, speeding. Fuller’s Natural Law  What are the eight ways, according to Fuller, in which the attempt to create a legal system could fail, due to a lack of due process? Why does Fuller think that any one of those will result not just in a bad system of law, but in no system of law at all? The attempt to create a legal system that could fail is if one of the following things happen: o No general rules, just casually decisions. o Made general rules but kept them secret. o Made general rules and apply them a retro specialty. o Unclear or incomprehensible. o Make contradictory laws. o Laws that require us to do what we can not do. o The rapid change of rules. o Incongruence between laws and legal judgments. Laws are supposed to be rules that guide our behavior. However, none of that can happen if the following examples above are happening.  What is one of the chief ways in which Fuller’s version of Natural Law theory differs from that of Blackstone? Lon Fuller does not say that all unjust laws are not laws and Blackstone does.  What is Hart’s objection (that we discussed) to Fuller’s theory?Harts objection to Fullers is that his eight requirements aren’t moral requirements at all, they’re just procedural requirements.