Natural Law, Legal Positivism - Legal Studies Midterm...

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Legal Studies Midterm ReviewWeek 1What is the Law-“To seek a definition of the legal is like the quest for the Holy Grail”-Hoebel-“Those of us who have learned humility have given over the attempt to define the law”-Radin-there are 2 schools of thought:1. Legal Positivism, Positive Law Theory-sets forth and named law in a given society, law as separate from society2. Natural Law Theory- law is a set of rules derived from transcendent principle of goodness, from supra-human source like God’s will or moralityNatural Law-standards that a rule has to be compared to before it can call it a law-can come from religious texts, divine revelations-they are God’s laws-can also come from a careful study of human nature-reason-they exist across time and space-everyone has access to natural law by use of reason-we intuitively know what is good and whatis bad-only human laws that are in accordance with natural law deserve to be called law-Thomas Aquinas-1224-1274; just laws cultivate the common good, are made by a lawmaker who does not exceed his authority, imposes burdens fairly; “Lex injusta non est lex” (“An unjust law is not law”)Critiques of Natural Law-skepticism of universal moral principles, of a higher moral order; also capacity to figure out what the higher morals are can be clouded by self-interest; just because we can discover natural law, that doesn’t mean that we should follow itJohn Locke and Natural Rights-transition from natural laws to natural rights-humans get rights because we are humans-all men have the inherent right to life, liberty, and property-the rights carry as far as they are still in accordance with natural law-government is formed and is designed to protect rights-if the government does not protect rights, people have the right to overthrow the governmentApplied-Jefferson-the Declaration of Independence-Martin Luther King, Jr.-civil disobedience, justifies his actions by moral laws-we can no longer wait-Birmingham was entirely segregated (by law-segregation ordinances), also frequent bombings

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