Formalist Rule Of Law~ 4 March~ Laws 110 - Legal Foundations (LAWS110)

Laws 110

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

Formalism

• 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

Positive morality

International law

Constitutional law

Etc.

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

Wrote the concept of law book based on Austin’s theory with more structure. A system of rules because it is a system of law if it follows a particular pattern or structure, if it does not follow the structure it is not a law. Systems that don’t follow this structure are not just rules (they can still be...