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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. 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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  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

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