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LWSO 203 Positivism & Realism.doc

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Law and Society
LWSO 203
Marywyatt Sindlinger

Key concept: What is law and how can law be defined? Basic definition: Law is a body of requirements and prescriptions that apply to human behaviour General features of law: (i) Prescribe certain behaviour (ii) Predict behaviours (iii) Regular (iv) General (v) Created and enforced by the state What is the difference between laws and other forms of rules and the difference between law and morality? Legal Theories key concept: Different legal theories provide different explanations for the existence and authority of law as well as for the nature of law 1) Natural Law Theory Law is Morality Key concepts: moral universalism – As part of the natural world, Universal Moral Truths exist law and morality are connected such that moral validity is a necessary condition of legal validity -there are moral universal truths and in order for a law to be valid it must be in accordance with the morals Key people: Greeks St. Thomas Aquinas-believes it comes from god (divine laws) American Constitution and Canadian Charter of Rights and Freedoms Problems: How do we determine Universal Moral Truths? Are Universal Moral Truths actually possible? -universal moral truths must be very vague and broad in order to be universal 2) Legal Positivism Law is Rules made by a Sovereign Key concepts: Law is justified and legitimate in accordance to its manner of creation separation of the question of the existence of law from its moral content -A law doesn’t have to be in accordance to moral values in order to be valid empirical/scientific approach to understanding law -law is a science to be studied -created in a time where scientific method reigned, and by using this methodology can be applied to law as a science -takes the key components and defines them in order to understand law e.g. Rule, command, law Law is rules made by a sovereign* Law is justified in order of it’s creation Key people: John Austin Command theory: law is the command of the sovereign Command: a command is a wish or intimation of a wish that you do or refrain from doing X backed by the threat that an evil will be put upon you if you fail
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