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2 プカイ
Jeremy Bentham
Teleological or Natural Law Theory
Principles of Morals and Legislation
Teleological - looks into the principles, purpose, and end (telos) of the
Law is conceived as a set of general commands issued by a sovereign
law.
and backed up with the threat of sanctions.
What law “is” is different from idealized law or what the law “should be”
(separability thesis).
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Hans Kelsen Argues that subjects or citizens voluntary obey the laws of the land
Pure Theory of Law because they accept as valid the rulemaking institution's claim to the
exercise of authority.
Objective of making law into a "science.”
Rule of Recognition - recognized as conclusive and valid.
Wanted to separate “legal science” from “legal politics”, which
compromises law based on what is politically correct. Rules of Change - reference to legislation to make and repeal rules.
Leviathan Confucianism
Political Theory and Rectification of Names
Rule by the Law, where there is no need for precedent, rules of
procedure, or processes that the lawmaker himself must abide to. Teaches regard for hierarchy and the bond between the ruler and the
subject, which supports legalism.
Herbert Hart
Rule of Recognition
Interpretivist or Constructivist Theory
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Best Fit Theory - principles and rights are not something already laid Roberto Unger
down by natural law, but something still to be “constructed” by the Hegemony, Deconstruction, and Hermeneutics of Suspicion
adjudication of judges, faced by novel claims to “best accommodate the
community’s common convictions”. Hegemony - leadership or dominance, especially by one country or
social group over others.
Realist or Pragmatist Theory Hermeneutics - the branch of knowledge that deals with interpretation.
Since law was created by man, it is also subject to human imperfections, Challenged societies to rethink their ideas of rights and emancipation
eccentricities, weaknesses, and foibles. and to continuously imagine, revision, envision, and experiment with
structural arrangements, with the goal of creating more opportunities for
Law is indeterminate. (Law as found in codes and jurisprudence does more people.
not always determine the outcome of a dispute.)
Historical Approach
Justice Oliver Wendell Holmes
The Path of Law
Law has a past and a progression.
"The life of the law has not been logic; it has been experience."
Freidrich Karl von Savigny
The Bad Man Model - in examining the law or deciding a case, always The Volksgeist
think from the perspective of the bad man, not the good man. The bad
man, at the end of the day, cares only for the consequences of the law, Volksgeist - is the spirit of the people.
of what the courts will do to him, and the rest is irrelevant. The source of law is the instinctive right possessed by every race.
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William James
Sir Henry Sumner Maine Law as a means to satisfy needs.
Legal History Theory
G. W. F. Hegel As society progresses from simple to complex the role of law changes.
Dialectic Idealism and the Philosophy of Law Theory of legal change from "repressive" to "restitutive" law.
Roscoe Pound
Functional or Sociological Approach The scope and purpose of socio-logical jurisprudence
A coherent society must have a pattern of culture that determines its
Functions of Law - in relation to society, law may serve as a tool for ideology.
social control, dispute resolution, and social change.
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Law is an institution to satisfy social wants, by ordering human conduct Eugen Ehrlich
through a politically organized society with a systematic and orderly The Living Law
application of force.
Positive Law which looks at "law" as the sum of statutes and court
pronouncements could not capture the legal reality of a culture or
Max Weber society.
Typology of Law
The Living Law - societal norms that regulates social relationships and
Legal Study of Law internal structures meaning and scope helps strengthen society.
Sociological Study of external or empirical role or impact Legal norm must follow actual social norms and be a “living law.”
Law effects of the
application of law to
society John Rawls
The Sociological School
Held that law must have a cultural context to support it. "Greatest happiness theory."
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Felicific or Hedonic Calculus - formula in computing the units for Happiness is not sought; it spontaneously happen.
happiness. Happiness is something that can be calculated.
Involve yourself in something that you are passionate about.
Empirical in nature.
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Antonin Scalia
Contemporary Originalism
Legal Formalism or Conceptualism
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5. Safety or Health.
These social values are technically denominated under the single term
"policy."
Philip Bobbit
The Six Main Modalities:
2. Textual - looking for what the law simply declares or denies and how
it can be interpreted in contemporary times;