Law%20101%20Conlaw%20lecture%201%20-%20lecture%20notes

Law%20101%20Conlaw%20lecture%201%20-%20lecture%20notes - Dr...

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Dr. B.W. Miller Law 101 September 2010 CONSTITUTIONALISM AND THE RULE OF LAW Lecture #1 Sept 21 I. What is law? 1. You might think that our first order of business should be a discussion about what constitutional law is. But before we can usefully talk about what constitutional law is, we have to get to the bottom of a few key concepts, like constitutionalism and the rule of law. But there’s still a more fundamental concept that we need to address. We need to answer the question: what is law ? 2. “What is law?” We can make some headway with it if we use Aristotle’s method for describing phenomena. To find out what something is, we translate the question of what is law, into ‘What does law do?’ Better still, What do we use law for ?’ a. Most obviously, it seeks to restrain wrong-doing and punish the wrong-doer (criminal law, tort law). This sort of law is often thought of as a command , backed by a sanction (or punishment). Eg command: ‘don’t park in front of a fire-hydrant’. The corresponding sanction: ‘your car will be impounded and you will be fined $500.’ Do not knowingly make false statements on your tax return. If you do, the sanction will be fined and perhaps imprisoned. 1
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Dr. B.W. Miller Law 101 September 2010 b. Let’s stop here for a moment. This sort of definition is what is known as the “Command theory” of law: John Austin (19 th century). A command, backed by a sanction. c. The command theory has some problems: i. ‘Give me your iPod, or I will fine you $1,000.’ 1. we have both a command, and a sanction, but is it a law? 2. Of course not. I have no legitimate authority to make such a demand. 3. This is a problem with the command theory: it would state that whatever the armed bandit tells you to do is law. 4. so the command theory gives too broad a definition of law. ii. That’s one problem with the command theory. The second problem is that it is also too narrow : it identifies some law, but not all law. It is not inclusive enough. Not all laws are commands. What are some other examples of laws that are not commands? Think about enabling (or power-conferring) laws, like laws about getting married, or entering contracts, or writing a will. 1. These are laws that enable people to do things. a. Getting married: law says that if you take the following steps (get a marriage licence, make 2
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Dr. B.W. Miller Law 101 September 2010 vows in front of recognized clergy or civil marriage commissioner) you will then have the legal status of being married. b. If you offer to buy my car on terms that I agree to, title of that car passes to you and the state recognizes you as the legal owner of that car. c. If you write a will, and have it witnessed, then when you die, ownership of your car will go to the person that you want to leave it to. iii.
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Law%20101%20Conlaw%20lecture%201%20-%20lecture%20notes - Dr...

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