Review:
This is not intended to be exhaustive. Be sure to review the study questions, quizzes, and discussion board posts in addition to what is presented here.
Twinings, Plato, Wacks, and the encyclopedia entries on philosophy of law from week 1:
The difference between legal positivism and natural law
The difference between statutory law and common law
The three sources of law covered in Minos
the differences between the three
be able to apply the concepts for example you should be able to read a passage and determine if it is law by decree, law by custom, or law by justness
you should be able to consider how each of these sources of law can yield different outcomes
review Twining’s essay for the sorts of ways different sources of law can produce different outcomes when determining whether or not we ought to give clean water to prisoners
Bentham’s offer:
The virtues he offers of the pannomion
The characteristics of a real law, according to Bentham
The issues he sees with depending on common law
How he plans to reference common law to determine what the codes ought to be and the possible risks
Friedman:
The historical development of law in the United States – the process of how the U. S. ended up with common law
Quarmyne and Weisbrot:
You should know the various ways that the various countries covered by these authors have addressed the issue with multiple sources of law.
Note the significance of customary indigenous law, which is not a source of law in the U. S.
You should note what is lost when customary indigenous law is passed over for other sources of law (see Quarmyne)
You should note the challenges of trying to integrate indigenous law into a new system and the risks of a two-tiered political system (see Weisbrot)
Powles and Tamanaha:
You should know the various ways that the various countries covered by these authors have addressed the issue with multiple sources of law.
Note the significance of customary indigenous law, which is not a source of law in the U. S.
Note how similar customary indigenous law and common law are (see Powles especially the lecture)
Note what risks may occur when upholding customary indigenous law, especially when it comes to thinking about what is just and fair for all (see Tamanaha)
Thompson:
The difference between customary law and common law
Be sure to note the jurisdictions where there are customary laws
Customary consciousness and its main features
How customary law is like common law.
How we see customary law in England develops into formalized common law
The role of the manor/lord in customary law and how the understanding of property changes the law in England.
Postema:
The difference between common law and enactment law
Why theorist in the 17th century were not happy with the increased activity of law making by the legislature and the king
The difference between natural reasoning and artificially reasoning
Understanding of common law according to classical common law theory
Hale’s position on common law and the validity of law
Natural law and Blackstone:
The general definition of natural law
Acquinas’ version natural law
The role of God in natural law theory and human reason
It’s connection to morality/justice
How Blackstone includes a version of natural law theory in his theory of English common law
How does non-formalized unwritten customary law receive its ‘binding power’
The role of the judiciary and why he preferences judges over the monarch and the legislature
The foundation for human law and how this foundation gives human law its force (note the similarities to natural law here)
Blackstone’s definition of municipal law and how it ties into natural law
H.L.A. Hart:
Differences between natural law and positivism
What makes a law valid for natural law and for legal positivist
What it means for a rule to be accepted
The rule of recognition
The three secondary rules of Hart’s
The difference between primary and secondary rules and how they are related
The social fact that Hart identifies about law
The main issue Hart has with the definition of law given by natural law theory
Hart’s distinction between pre-modern and modern legal systems and why he prefers modern legal systems
The difference between narrow v. wide concept of law and why prefers the wider concept of laws
Tamanaha – “What is Law?” article
The three sources of law identified in Minos
The three types of law identified by Tamanaha
The weakness of the three main forms of jurisprudence as identified by Tamanaha
The challenge that common law presents for legal positivist like Hart
Why we can’t dismiss places that have only customary law so easily
The lessons we have learned about common law by reviewing the dispute between common law theorist and legal positivist
How Hart’s theory seems to maintain or have something in common with common law theory
Why legal theorist have failed at answering the question what is law.
Tamanaha’s understanding of law
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