Legal 250-Midterm Study Guide.pdf - MIDTERM EXAM STUDY...

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MIDTERM EXAM STUDY GUIDELEGAL 250PATRICIA EWICKAND SUSAN SILBEYConducted the study which created the frames of law• In the American culture, law is both “God and gimmick,” “sacredand profane”• We are cynical yet optimistic and idealistic• Precisely because we have these multiple frames of law andlegality, law is able to maintain its dominance in our society and ourlivesPATRICIA EWICKAND SUSAN SILBEYNatural Law TheoristA just man-made law is…• one that cultivates the common good• made by a lawmaker who has not exceeded his or her authority• one whose burdens are imposed fairly on citizensLex iniusta non est lex “An unjust law is not law.”MARTIN LUTHERKING JR.Used civil disobedience as an application of natural law:“I submit that an individual who breaks a law that conscience tellshim is unjust, and who willingly accepts the penalty of imprisonmentin order to arouse the conscience of the community over its injustice,is in reality expressing the highest respect for law.LETTER FROM BIRMINGHAM JAIL:• Reaction to a statement from 8 white clergymen which ends with:– “We appeal to both our White and Negro citizenry to observe theprinciples of law and order and common sense”• Uses a natural law framework to explain and justify his actionsJOHN AUSTIN(1790-1859) “The existence of a law is one thing, it’s merit ordemerit is another. Whether it be or be not is one enquiry; whetherit be or be not conformable to an assumed standard is a differentenquiry. A law, which actually exists, is a law, though we happen todislike it.”Law is: • the command of a sovereign,• backed by force or threat of it,• who is habitually obeyed and,• who does not habitually obey anyone else.HLA HARTH.L.A. (Herbert Lionel Adolphus) Hart (1907-1992) Legal systemshave…Primary Rules and Secondary Rules• A valid legal system requires that:– Citizens accept the primary rules AND– Society’s officials accept the secondary rules as common
standards for official behavior•created core of certainty and penumbra of doubtLON FULLERThe “Inner Morality” of Law Key Assumptions: • Law is “theenterprise of subjecting human conduct to the governance of rules”• Law guides human behavior toward some larger purpose, likejustice.• Lawmaking is moral when its procedures lead to this purposeHENDRIK HARTOG• There are often different conceptions about what the law is.• There are sometimes different institutional authorities sendingopposing signals about what the law is.• The law is “an arena of social conflict” within which a number ofalternative social visions contend.• Legal positivism requires that one group is able to impose its set ofauthoritative interpretations on the rest of the community.

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Term
Spring
Professor
Holmes

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