Intro Legal Quiz 2

1. Law is known through the systematic observation of a given society (power of reason and observation still important)
2. The question of "what law is" is distinct from the question of "what law ought to be"
3. A morally neutral description of law is possible and desirable

1790-1859. One of first proponents of first proponents of legal position "the existence of law is one thing, it's merit or demerit is another. whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it."

Law is:
1.) The command of a sovereign
2.) Backed by force or threat of it
3.) Who is habitually obeyed and,
4.) Who does not habitually obey anyone else

1. Difficulty of distinguishing who/what is sovereign in a democracy (the people? the legislature? the President?)
2. Even in a monarchy, habitual obedience is not guaranteed. new monarch = new laws
3. Can't account for laws that regulate conduct between private individuals (contracts, wills, etc.)
4. Just because you can command it, enforce it, have habitual obedience and be above it doesn't mean it's legitimate law (e.g. mafia, gang leaders) - strongest person makes law opens up world to corruption

1907-1992. Said cannot look from outside, need to get into society to see how people view law and rules. for him law is a set of rules formulated by certain procedural rules that we all see as valid (primary and secondary rules)..Legal systems have...
1. Primary rules: rules that apply directly to citizens, often commands to abstain from behavior
2. Secondary rules: rules that govern the creation, amendment and repeal of primary rules

1. rules of change - empower people to create new primary rules (i.e. rules about electrions of officials)
2. Rules of adjudication - empower people to decide whether a primary rule has been broken (i.e. rules about how judges are selected)
3. Rules of recognition - criteria to help officials decide which rules are part of a legal system and whivh are not (i.e. constitutions, rules about passing laws)

1. citizens accept the primary rules
2. society's officials accept the secondary rules as common standards for official behabiot

Nothing about morality of content of rules. he says laws can happen to overlap with morality - that is fine. if something follows right process then it is law - even if used morality to get there - but cannot say it is not law because it is not moral. Hart says Nazi laws that made through process are law

Language is often indeterminate; how do we know what law is when the language of a statute is unclear in a given situation?

Cases fall into two types of relationships to the rules that govern them. they are either in...
1. The core of certainty (most cases fall here): it's obvious that the rule applies
2. The penumbra of doubt (a small minority of cases): it's not obvious that the rule applies

He says NO. the law has gaps that occasionally require the judge to fill but this does not necessarily involve reference to a higher moral order. The judge CAN look at morality but does nothave to! He can look at other standards as well. Hart says judges can even consult immoral standards

"the most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals...an exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment"

Natural law = laws valid when moral. Hart = law if goes through right process is valid

Hart: either let her go or admit you are using an ex post facto (retroactive) law. Meanwhile, the natural law proponents say nazi law was immoral and should not have been followed by anyone because it was not law

1902-1978. Agrees morality needs to play a role - but different from natural law theorist. Believes in the "Inner morality" of Law. Key assumptions:
1. Law is "the enterprise of subjecting human conduct to the governance of rules"
2. Law guides human behavior toward some larger purpose, like justice
3. Lawmaking is moral when its procedures lead to this purpose