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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

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
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Constitution, Society, and Leadership

Week 5 Unit 1

Concepts of Law:

Topic Introduction

Christopher Dreisbach, Ph.D.

Johns Hopkins University

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