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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

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

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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

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?


Concepts of law topic introduction ii review three basic theories ii

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


Concepts of law topic introduction iii review three basic theories iii

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…


Concepts of law topic introduction iv review three basic theories iv

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?


Concepts of law topic introduction v review three basic theories v

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


Concepts of law topic introduction vi review three basic theories vi

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


Concepts of law topic introduction vii review other questions i

Concepts of Law: Topic Introduction-viiReview: Other Questions-i

  • Some other questions to ask as we consider concepts of law…


Concepts of law topic introduction viii review other questions ii

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?


Concepts of law topic introduction ix review other questions iii

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?


Concepts of law topic introduction x readings

Concepts of Law: Topic Introduction-xReadings

  • Our topic this week is concepts of law

  • Reading: Feinberg & Coleman, Part I: The Nature of Law


Concepts of law topic introduction xi required readings i

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


Concepts of law topic introduction xii required readings ii

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


Concepts of law topic introduction xiii required readings iii

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


Concepts of law topic introduction xiv recommended readings i

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


Concepts of law topic introduction xv recommended readings ii

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


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


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