somenote
Chapter 1
Law, therefore, is a set of rules that are enforced by a government authority.
At a most basic interpretation, some believe that law is simply power. That is, the law is followed because the sovereign issues orders that are backed by threats
Legal positivists believe that the law is what the law says. The laws are written, human-made rules. The law is not drawn from any source higher than human beings.
Legal positivists do not believe that law is simply power, because they believe that valid law must be created pursuant to the existing rules that allow the law to be created.
.Some people have a strong moral objection to engaging in armed conflict with other human beings. However, a legal positivist would most certainly comply with a law that required compulsory conscription
A common criticism of legal positivism is that it prohibits individuals from remaining true to their own consciences when their consciences conflict with the laws of the sovereign
A different viewpoint is legal realism, which is the belief that the law itself is far less important than the consideration of who is in the position to enforce the law. Like positivists, legal realists believe that law is the product of human making. However, unlike positivists, they believe that the outcome of any issue that arises under law is dependent on the person, such as a judge, who is in the position to exercise power under the mantle of the law. Additionally, realists believe that social and economic considerations should be brought to bear in legal disputes, which may very well be “extra” considerations that are not captured by the written law itself. In short, for a legal realist, knowing who is enforcing the law is far more important than what the law actually says.
For instance, they argue that judges should not use any factors other than the written law when rendering decisions. Legal realists, however, point out that judicial interpretation not only is necessary but
Law, therefore, is a set of rules that are enforced by a government authority.
At a most basic interpretation, some believe that law is simply power. That is, the law is followed because the sovereign issues orders that are backed by threats
Legal positivists believe that the law is what the law says. The laws are written, human-made rules. The law is not drawn from any source higher than human beings.
Legal positivists do not believe that law is simply power, because they believe that valid law must be created pursuant to the existing rules that allow the law to be created.
.Some people have a strong moral objection to engaging in armed conflict with other human beings. However, a legal positivist would most certainly comply with a law that required compulsory conscription
A common criticism of legal positivism is that it prohibits individuals from remaining true to their own consciences when their consciences conflict with the laws of the sovereign
A different viewpoint is legal realism, which is the belief that the law itself is far less important than the consideration of who is in the position to enforce the law. Like positivists, legal realists believe that law is the product of human making. However, unlike positivists, they believe that the outcome of any issue that arises under law is dependent on the person, such as a judge, who is in the position to exercise power under the mantle of the law. Additionally, realists believe that social and economic considerations should be brought to bear in legal disputes, which may very well be “extra” considerations that are not captured by the written law itself. In short, for a legal realist, knowing who is enforcing the law is far more important than what the law actually says.
For instance, they argue that judges should not use any factors other than the written law when rendering decisions. Legal realists, however, point out that judicial interpretation not only is necessary but