Chapter 4 Self-test questions

. 'The most fundamental of positivism's key commitments,' writes Ken Himma, 'is the Social Fact Thesis.' What does it claim?

That law is essentially an artefact or social construction.

That legal systems are unrelated to social forces.

That society is constantly in a state of flux.

That legal positivism is a social theory.

. 'Soft positivism accepts that the rule of recognition may include moral criteria.'
Which proposition below is the most inconsistent with this description?

'Incorporationism' accepts that judges may decide cases by reference to moral factors.'

A soft positivist rejects the role of morality in the description of law.

Sometimes the definition of law includes moral considerations.

Judges lack strong discretion.

. Which statement best explains the purpose of Hart's distinction between 'being obliged' and 'having an obligation'?

It demonstrates the difference between the internal and the external aspect of a rule.

It refutes the natural lawyer' view of the role of morality in law.

It explains the nature of power-conferring rules.

It illuminates the concept of a rule.

. Hart argues that secondary rules are 'power-conferring' but this seems unconvincing in the case of the rule of recognition because:

It both confers power and imposes duties on judges to decide cases.

It is not a social rule.

It applies only in the case of unitary constitutions.

It fails to specify the source of authority.

. Which proposition below is the most powerful refutation of the view that rule of recognition is no more than the sources of law?

The rule of recognition transcends all rules.

The rule of recognition is merely a hypothetical construct.

The rule of recognition must be accepted by officials.

The sources of law are more extensive than any rule of recognition.

. Which of the following purposes does the 'internal point of view' play in Hart's concept of law?

It distinguishes social rules from mere group habits.

It defines the judicial function.

It illustrates the authority of the legislature.

It stresses the relationship between law and justice.

. Which statement best describes the nature and function of Kelsen's Grundnorm?

The ultimate source of a legal system's morality.

The rule that distinguishes norms from habits of obedience.

The constitution of a state.

A presupposition that facilitates our understanding of the legal system.

Quiz Content