This is an extract of our Formalist Rule Of Law~ 4 March~ Laws 110 document, which we sell as part of our Legal Foundations (LAWS110) Notes collection written by the top tier of University Of Canterbury, Christchurch students.
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Formalist rule of law
Process (formalist view)
Attempt by philosophers to move past natural law (logic, god etc.= rule by king, law was imposed on man)
Enlightenment period- why should we follow these laws, why should we follow this
1. Positivism- the theory that laws are to be understood as social rules, valid because they are enacted by authority or derive logically from existing decisions, and that ideal or moral considerations
(e.g., that a rule is unjust) should not limit the scope or operation of the law.
Idea that law is created by man
- Law as Formal System of Rules
Early Formalism (John Austin)
Law is a system of rules which a form of characteristics, no religious element, its about power.
1. Power of the sovereign that commands obedience.
2. These rules were commands.
3. Enforcement- by the power of the sovereign
4. A sovereign
If a rule doesn't have these then it is not a law, concept of law
Some law is enforced by social norms like littering or they are not enforced because you can't catch a person. Like environmental laws/regulations which are not always enforced
Laws have to be commands?
- Human rights act, is this a command??
"If it is law, it will be found in our books."- LC, 1765
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