FSAL chapter 1 and 2 Flashcards
functions of the law
1. Setting pre-existing, impartial rues based on criteria that
can be used to judge and settle conflicts.
2. protecting Rights and Freedoms of the Individual
3. Facilitating Change
4. Protecting society by serving as a framework for
defining orderly conduct
5. Provides Mechanism to legitimize actions by the state
by enforcing accountable administrative action.
6. Providing institutions and procedures to settle disputes.
7. Protecting and Preserving the Legal System.
How a legal system functions
- lawmaking
- law administration
- interpretation and ajudication
- enforcement
- legal profession
factors that determine the effectiveness of the law
1.Public Awareness and Acceptance of the Law
2. Enforcement of the law
3. Clarity in Drafting the Law
4. Consistency in law
5.Changes and Stability
what is natural law
- Law is made up of universal and eternal norms that have their authority n human reason as opposed to the will of the state.
- There are unchanging principles of law that define what is right, just and good and these principal should govern our actions.
- accessible to everyone across time and space
- used to criticize human rights violations
what is positive law
PL theorists say that the written law issued by a sovereign state is the source of all legitimate law.
· The morality of the laws does not matter.
what was the legal system under apartheid?
- positive
- Parliamentary supremacy based on an invalid notion of democracy.
- Discriminatory laws could be enforced by the courts usually using positivism as a justification
- law issued to maintain the regime
what are the key ideas of legal positivism
- Laws are human commands
2.No necessary connection between law and morals
3.Correct decisions are made by reasoning through existing legal rules alone - Moral judgments can’t be established by rational argument, evidence and proof while
statements of fact can
5.The law that is should be separated from the law that one thinks ought to be
Bentham
law is based on the will of the sovereign and should be made to according to the principle of utility.
John Austin
law is a command by the sovereign and backed up by sanction.
Hans Kelsen
legal system is a hierarchy of law grounded in a hypothetical “highest norm called the
“Grundnorm”
Wacks on Grundnorm
- Enforceable through force or coercion
- Logical presumption of society’s legal awareness
- Helps give validity to a constitution and all norms in the systems
- Enable lawyers to interpret all valid legal norms.
HLA Hart
- A legal system can be valid without conforming to basic ethical standards
2.Can’t expect people to obey unjust law, but it is nevertheless law
3.minimum standards: protect property, life , equality
4.Sanctions must be used against those who want the benefits of an orderly society but don’t
want to play their part
key ideas of marxist theory of law
- Law can’t be separated from the political
- Law and state are closely connected
- Law gives effect to prevailing economic relations
- Law always is potentially coercive
5. Content and procedures of laws directly or indirectly serve the interests of the dominant
class
legal formalism
1.Looks at the way in which judges come to their decisions.
2. Law should limit judges with regard to the interpretation of legal texts
·3. Judges should be loyal to legal texts as they are but not what they should be.
Feminist Legal Theory
- Law traditionally been used to suppress women due to the male dominance of all spheres of society – but particularly here its law making function.
- Change the status of woman by changing the law.
