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MIDTERM EXAM STUDY GUIDE LEGAL 250 PATRICIA EWICK AND SUSAN SILBEY Conducted the study which created the frames of law • In the American culture, law is both “God and gimmick,” “sacred and profane” • We are cynical yet optimistic and idealistic • Precisely because we have these multiple frames of law and legality, law is able to maintain its dominance in our society and our lives PATRICIA EWICK AND SUSAN SILBEY Natural Law Theorist A 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 citizens Lex iniusta non est lex “An unjust law is not law.” MARTIN LUTHER KING JR. Used civil disobedience as an application of natural law: “I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in 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 the principles of law and order and common sense” • Uses a natural law framework to explain and justify his actions JOHN AUSTIN (1790-1859) “The existence of a law is one thing, it’s merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry. A law, which actually exists, is a law, though we happen to dislike 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 HART H.L.A. (Herbert Lionel Adolphus) Hart (1907-1992) Legal systems have… 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 doubt LON FULLER The “Inner Morality” of Law Key Assumptions: • Law is “the enterprise of subjecting human conduct to the governance of rules” • Law guides human behavior toward some larger purpose, like justice. • Lawmaking is moral when its procedures lead to this purpose HENDRIK HARTOG • There are often different conceptions about what the law is. • There are sometimes different institutional authorities sending opposing signals about what the law is. • The law is “an arena of social conflict” within which a number of alternative social visions contend. • Legal positivism requires that one group is able to impose its set of authoritative interpretations on the rest of the community.