LAWSO 1 10-04-07

LAWSO 1 10-04-07 - the moral law Unjust: NOT rooted in...

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Legal Positivism
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Natural Law
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Positivism John Austin’s command theory Law is the command of the sovereign Who is sovereign? Sole criterion for law’s validity: it is issued by the sovereign herself and will be enforced by the sovereign and her agents
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Is positive law changeable? Positive law is posited through decision, and is valid by the power of the decision (as having issued from the decisionmaker) It is what decision-makers posit that makes the law positive (by no other authority) What was posited yesterday was valid then though today it might not be
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How do we change positive law? Legislation – democratic reform Influenced by citizen action Court decisions – common law
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King’s letter from a Birmingham jail A natural law argument Urges officials to obey a Court ruling to desegregate, but in the process breaks the law on parades How can one justify breaking one law in order to demand compliance with another?
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A “just” law and an “unjust” law Just: a human invention that squares with
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Unformatted text preview: the moral law Unjust: NOT rooted in natural law If it degrades human personality and distorts the soul, then it is unjust Unjust laws are a code that the majority inflicts on the minority which is not binding on itself. Is a parade permit law unjust? A law in and of itself is indeterminate . The laws literal meaning doesnt determine the outcome of a conflict. It is in the application of that law that we can see the power of the law. How do we know when a law is unjust in its application? Examine our conscience Precedent Doctrine of Stare Decisis Let prior decisions stand Always? Distinguishing the law Precedent may be distinguished (as opposed to overturned) . . . When? When a ruling might have undesirable outcomes in society. Karl Llewellyn Janus-faced nature of the law Strict view of precedent Loose view of precedent The one that prevails depends on the desired outcome...
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LAWSO 1 10-04-07 - the moral law Unjust: NOT rooted in...

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