LEGAL 250 Study Guide - Fall 2018, Comprehensive Midterm Notes - Legal Positivism, Thomas Aquinas, Positivism
12 Oct 2018
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LEGAL 250
MIDTERM EXAM
STUDY GUIDE
Fall 2018
Representations of Law
Legality: the meanings, sources of authority, and cultural practices that are commonly
recognized as legal, regardless of who applies them or for what ends.
● Exists everywhere
Law: parts of legality that are employed by or attributed to formal institutions or its actors.
● Exists in familiar places
Legal frames
● Are people… Before the law, against the law or with the law?
● People hold multiple frames at the same time
● Each frame can be both empowering and disempowering
Frame #1: before the law
● Law is…
● Majestic, removed from ordinary life
● Authoritative and predictable
● Defined by impartiality and equality of access
Frame #2: With the law
● Law is…
● A game of skill, deceit, manipulation and resources
● Those who can play the game well are better able to get what they want
● Lawyers are very important resources for playing the game
Empowerments: people who take pleasure in playing the game, money
Disempowerment: belief that you will lose because of lack of resources stops you from
accessing the law in the first place
Frame #3: Against the law
● Law is…
● A product of unequal power, arbitrary and capricious
● Oppressive force
● In response, people “make do” using what they can to get what they need
● They evade the rules, not transgress them
Empowerment: masquerading, occupation of paper/space, making a scene, feelings of claiming
rights and a sense of justice
Disempowerment: people engage this way because they have few resources and little faith that
they could stand before the law and receive a fair outcome
find more resources at oneclass.com
find more resources at oneclass.com
Legal studies
Sept 11th
What is Law? (Natural Law Part 1)
Two major schools of thought
Positive law theory or legal positivism: law is that which is set forth and identified as “law” in a
given society. Law is analytically and conceptually distinct from morality.
Natural Law Theory: Law is the set of rules that derive from transcendent principles of
goodness. Law is always derived from some supra-human source, like God’s will or morality.
● There are standards against which a rule we are examining must be consulted
before that rule can properly be called a “law”
● Those standards are sometimes referred to as “higher law.”
where do we find those standards?
● Religious texts
● Divine revelation
● A careful study of human nature
● A careful consideration of nature
Key assumptions of natural law
● Natural law is unchanging over time and does not differ in different societies.
● Every person has access to the standards of natural law by use of reason.
● Only human laws in accordance with the natural law deserve to be called “law”
Thomas Aquinas (1224-1274)
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
● “An unjust law is not a law”
Critiques of traditional Natural Law Theory
● Skepticism about the existence of universal moral principles and our capacity to acquire
them in a way that is not clouded by self interest
● Is vs ought dilemma: just because something “is” doesn’t mean it “ought” to be. (just
because we discovered natural law, doesn’t mean we ought to obey it)
John Locke and Natural Rights
● All men have the inherent right to life, liberty and property
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Legality: the meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who applies them or for what ends. Law: parts of legality that are employed by or attributed to formal institutions or its actors. People hold multiple frames at the same time. Each frame can be both empowering and disempowering. Defined by impartiality and equality of access. A game of skill, deceit, manipulation and resources. Those who can play the game well are better able to get what they want. Lawyers are very important resources for playing the game. Empowerments: people who take pleasure in playing the game, money. Disempowerment: belief that you will lose because of lack of resources stops you from accessing the law in the first place. A product of unequal power, arbitrary and capricious. They evade the rules, not transgress them. In response, people make do using what they can to get what they need.
