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Philosophy of Law > Exam #1 > Flashcards

Exam #1 Flashcards

1
Q

define a valid argument

A

when the premises are such that they cannot be true and the conclusion false
(Both have to be TRUE)
- an argument but in the sense of theoretics

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2
Q

define a sound argument

A

when it is valid & ALL its premises are true
- being placed in reality (an actual argument)

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3
Q

define arguments by analogy

A

Treating two fact patterns in the same way because they have some similarities.

1) some fact pattern A has x, y, or z
2) some fact pattern B also has x, y, or z
3) the law treats fact pattern A in a certain way
4) the law should treat fact pattern B in the same way

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4
Q

what’s a modus ponens deductive argument?

A

-> opposite of modus tollens
P1) If A & B, then C
P2) A & B
C) Therefore C

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5
Q

what’s a modus tollens deductive argument?

A

“Mode of Taking” -> opposite of modus ponens
P1) If A, then B
P2) Not b
C) So not a

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6
Q

what’s a hypothetical syllogism deductive argument?

A

P1) If A, then B
P2) If B, then C
C) So, if A then C

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7
Q

what’s a disjunctive syllogism deductive argument?

A

“process of elimination”
P1) Either A or B
P2) Not A
C) So B

*either the cat smells or my feet smell

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8
Q

what’s a dilemma?

A

P1) Either A or B
P2) If A, then C
P3) If B, then D
C) So, either C or D

*study for tests or go to the movies

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9
Q

what’s a reductio ad absurdam?

A

If one is trying to prove “P” assume “not P” (or the opposite of “P”)

P1) If not P, then Q
P2) But not Q
C) So P (or not not P)

*climate change and rising temperatures

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10
Q

what are fallacies?

A

a mistake belief, or an unsound argument

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11
Q

what does it mean to affirm the consequent and deny the antecedent?

A
  • affirming the consequent (result/effect) must be true if the antecedent (claim/initial event) is true
  • denying the consequent means the opposite (they’re both false)
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12
Q

what’s the proper use of principled consistency in Legal Judgement?

A

treating similar cases with the same president
- ex. someone steals from Walmart and gets 3 months, anyone else who also steals from Walmart should get the same thing

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13
Q

what’s the proper use of “remain in the particulars” in Legal Judgement?

A

treating cases with similar attributes as being on the same level while also individualizing 1 year in jail
- ex. someone who steals a lawnmower from Walmart should get a longer sentence than someone who stole shampoo

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14
Q

what’s the proper use of “not operating on preconceived system or theories” in Legal Judgement?

A

deals with predujeces
- you don’t want a jury to be made up of people with the preconceived notion that you’re guilty

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15
Q

what’s the purpose of “remaining at a low level of abstraction” in Legal Judgement?

A

pulling the jury away from the person they are considering by looking at the actual events (facts) rather and preconcieved notions

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16
Q

what’s liberalism?

A

(according to the harm principle) the state may only prohibit me from those things which harm other

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17
Q

what’s legal moralism?

A

the state may prohibit from doing things which harm others & OFEND OTHERS

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18
Q

what’s paternalism?

A

the state may prohibit me from doing things which harm others (due to one’s poor rationality) to ensure everyone lives a good life

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19
Q

what is depotism and when is it appropriate? (Mill)

A

exercise of absolute power; used as rational for bettering the lives of other people who you believe can’t do it themselves
- a reasoning for colonialism

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20
Q

what are Duties of Beneficence? (Mill)

A

doing good to others including moral obligations

21
Q

what are Duties of Nonmaleficence? (Mill)

A

societal obligations to not harm others

22
Q

what’s Mill’s opinions on Good Samaritan Laws?

A

depends on the law; a law to help someone with little cost/risk to oneself if okay

23
Q

what are 2 forms of compulsion for Mill?

A

civil and criminal law (need a specific definition of the crime, and proof)

24
Q

what are 3 areas of liberty for Mill?

A

*think Marketplace of Ideas
1) freedom of thought and emotion
2) freedom to pursue ideas (if they don’t harm others) even if they’re deemed “immoral”

25
Q

according to Hohfeld (Schauer) what is a right (claim)/duty?

A

A has a claim when B has a duty
- ex. A & B have a contract in which A will give B a car in exchange for $5,000

*A has a claim against B that B will perform that duty

26
Q

according to Hohfeld (Schauer) what is a privelege/no-right?

A

ex. free of sp, a person has the privilege/liberty to speak & also not to speak
- not wrong to act & also not wrong to not act

27
Q

according to Hohfeld (Schauer) what is a power/liability?

A

opposite of immunity
- A has a liability from B when B has power over A. (when one has power over the other, the other than has a liability)

the ability to change the legal status of another person
- I’m able to lose a lot of money if I give legal power to a bad attorney

28
Q

according to Hohfeld (Schauer) what is immunity/disability?

A

opposite of a liability
- ex. A has an immunity from B just when B has no power over A

29
Q

from Devlin, what is the argument from consent?

A

P1) If liberalism were true, then the victim’s consent would be a defense to every crime
P2) But consent is not a defense to every crime
C) So, Liberalism is not true

30
Q

from Devlin, what is the argument from disintegration?

A

P1) Society is held together by a shared, public morality.
P2) Immoral actions—even if harmless—weaken and threaten bonds with disintegration.
P3) The state may legitimately criminalize actions that weakens society’s bonds with disintegration.
C) Therefore, the state may legitimately criminalize immoral actions

31
Q

from Devlin, what is the analogy with treason?

A

he thinks there ought not be a difference between harming a specific person and harming society (or offending them)
- committing treason against the st. is like committing treason against society, so the st. therefore has no limit to how they could respond

32
Q

according to Stephen, why is he against Mill’s justification of limited despotism?

A

The goal of the law is to establish, maintain, and give power to that which the legislator regards as a good moral system/standard
- We want total despotism since we want someone to who has more reason than us to be in power and since they have more reason we should have no problem with them having control (they know more than us)

33
Q

according to Stephen, why is he against the need for “assignable harm to specific people”?

A

he doesn’t want to rule by fear (his argument is about avoiding fear)

34
Q

according to Stephen, why is should there be a distinguish between social and legal penalties?

A

Stephen doesn’t think there should be, and he thinks Mill does an inadequate job of explaining why there is a difference

35
Q

according to Stephen, what is the purpose of law?

A

according to Stephen, to legislate morality (of the legislator)

36
Q

hard vs. soft paternalism (Dworkin)

A
  • hard: restricting Y from doing X regardless of whether or not Y would ever agree w/ us, simply bc. X is bad for Y
  • soft: attempting to lead Y away from doing X by incentive or deterrent Z, knowing that Y would not otherwise do X except for lack of full knowledge or weakness of will
37
Q

what’s human nature to Dworkin? (the “real will” argument)

A

Odysseus example: If Odysseus was under rational influence then he wouldn’t go to the Sirens, but he knows he won’t be so he gave permission for other people to control his actions and he wouldn’t have real will

38
Q

according to Dworkin, what are 2 kinds of irrationality?

A

1) Attaching incorrect weights to values
- choosing not to do something that protects ones safety for personal reasons rather than moral
- choosing to not wear seatbelt bc. You’re late for a meeting rather than choosing to not wear a seatbelt bc. You don’t believe they help (?)
2) Neglecting to act accordingly to rational preferences
- not adhering to society’s standards (ex. you normally wear seatbelts but you forgot)

39
Q

according to Dworkin, what are 2 principles legislators should adopt?

A

1) burden of proof should be on authorities to show harmful effects (benefits to be gained)
- with seatbelts, it’s up to authorities to show harmful effects when attempting to establish paternalistic legislation (such as seatbelts beeping when they are not buckled, soft paternalism)
2) choose the least restrictive option
- an argument for soft paternalism (at least at first), unless the action is completely unsafe and needs hard paternalism immediately)

40
Q

what’s the argument from knowledge (regarding Mill against Paternalism)?

A

individuals are their own best judges of their tastes and preferences

41
Q

what’s the argument from autonomy’s connection to happiness (regarding Mill against Paternalism)?

A

that even when something does benefit us, that to be forced to do it makes it a net harm to our well-being (these are slides on Mill against Paternalism)

42
Q

what’s the argument from truth (survival theory)?

(Free Speech)

A

marketplace of ideas, essentially

43
Q

what’s the argument from democracy?

(Free Speech)

A

that free speech ought to be enforced to ensure full information for the electorate, and to be able to petition the government without repercussions

44
Q

what are Mill’s 2 reasons for the argument from truth?

(Free Speech)

A

1) because no ones knows the truth, so censoring something may be censoring the truth
2) free competition of ideas is the best way to find truth

45
Q

why can unpopular opinions be correct?

(Free Speech)

A

because the majority is not always right

46
Q

what is Scanlon’s notion of the where expression ends and the use of expression begins?

(Free Speech)

A

Scanlon sees the responsibility of the action on the part of the listener/viewer to be on that person, not the person who shared the expression in the first place—there ought to be a clean divide between what is expressed and how that expression is used​

47
Q

what are fighting words vs. hate speech?

(Free Speech)

A
  • fighting words: a threat of violence
  • hate speech: vile, but not a threat
48
Q

moderate vs. extreme thesis

A
  • Stephen (extreme) we need to legislate morality, but gives no reason as to why
    • Moderate is that way because it at least gives a reason, even if originally it sounds more extreme

Philosophy of Law (2 decks)

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