Cluster Concept of Law:
There are three cluster concepts of law:
a) Law as customs: Social orders and rules of conduct that govern society. A
challenge encountered is that it’s hard to differentiate law with religious
behaviors, morals, fashion and social etiquette. In other words, regulations/rules
are too broad. Strength is it gives society a basic guide to follow and influences
behaviors through social norms. For example, How does one determine if the
practice of no sex before marriage preached by catholism is law or morally. A)
Not law because the sovereign holds control of all laws, b) law because it ties in
with morality and social norms? c) Law because rules of conduct govern society.
b) Law as coercive system power (state based): legislatures pass laws, police enforce
laws and the judicial system interprets and applies laws. A challenge faced here is
that law is too narrow on an international basis. Strength is that is provides society
with the foundation necessary to bring forth justice. Law is distinct from morality.
a) Not law because society is unaware of the rules of conduct (?)
b) Not law because each state has its own opinion of rules.
c) Law because it is a form of judicial system
c) Law as Justice or right: Law is imbued with Justice. If a law is morally wrong, it is an
unjust law. Law should be fair. A challenge is that everyone has different opinion of what
is right. Strength is achieving fairness.
1) Not law because there is no sense of democracy if one person holds no
limitations of power, and citizens aren’t aware of the law.
2) Law because crimes against humanity are universally accepted as morally
wrong therefore unjust.
3) Law because justice is in the process of being served in a systematic form?
Section 2: Legal theories:
1) Modified Legal Positivism can be used to explain this course of action. Hart had
secondary rules, which were rules for primary rules. Hart stated: Rules of change,
rules of adjudication, and rules of recognition. Rules can change s the progression
of time continue. This disagrees with Fuller who stated laws must be stable (?)
disagrees with modified natural law. Classical natural law also does not agree
with this option assuming morality did not interfere, Classical legal positivism can
also agree with this option if the person habitually obeyed by the majority wishes
to enact a retrospective law.
2) This can be explained through the modified natural law theory proposed by fuller.
Fuller mentioned 8 internal rules that form the foundation of legal system. These
rules consist of. a) Generality b) promulgation 3) prospections 4) Clarity 5)
congruence 6) Consistency 7) stability 8) Possibility. These rules are the
foundation of a valid legal system. Fuller came up with a parable related to Rex. Rex tried to create a new legal system but failed because it breached the integral
rules proposed by Fuller which can be related to the Nazi regime (secrecy,
inconsistency, arbitrary laws)
3) If the judges free Eva, this can be explained though classical legal positivism by
Austin. Austin stated “laws as command by the uncommanded sovereign.
Sovereign is the person who is habitually obeyed by the majority. The sovereign
holds the power and