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PHL OF LAW > Exam 2 > Flashcards

Exam 2 Flashcards

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1
Q

Principle of Neutrality

A

if there are no value choices expressed in the constitution that would conflict with the laws and orders at issue then DON’T strike down

  • preserves democratic legitimacy
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2
Q

Principle of Neutrality flip side

A

if the value choices in the constitution DO conflict with the value choices in the laws/orders then the supreme court MUST strike down

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3
Q

Non neutrality

A

if value choices expressed in the laws/orders at issue are plainly morally wrong then the supreme court MUST strike down those laws

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4
Q

When are neutrality and non neutrality the same

A

when the value choices in constitution conflict with the ones in the law/orders

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5
Q

Bork - democratic legitimacy

A

if judges impose their own value choices on the majority then there is no democratic legitimacy

  • neutral principle of application upholds democratic legitimacy
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6
Q

What would Noonan and McKinnon say about abortion

A

Noonan: non neutrality: inherently wrong value choices in permissible abortion laws, Noonan believes the language of personhood applies to fetuses, abortion deprives fetus of right to life

McKinnon: to make abortion illegal would be unconstitutional: it would fly in the face of the equal protection caluse

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7
Q

Bork v Noonan v McKinnon

A

Bork - neutralist believes it is a mistake for judges to use their own value theories when deciding whether or not to strike down a law

Noonan and Mckinnon: non-neutralist: believe it is incumbent for a judge to question morality and the relationship with law

Noonan: also NLT

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8
Q

Natural Law Theory vs Positivist

A

Natural Law Theory: laws and morality inherently tied together

Positivism: opposed to NLT, valid laws should not include consideration of morality

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9
Q

NLT

A

NLT say the function of law is to implement the rules/norms of morality

Challenge to NLT: could there be laws that are valid, authoritative laws that conflict with rules/norms of morality?

NLT says: NO. It would not be a valid law, if law goes against rules of morality it is not a just law

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10
Q

Is there a distinction between “purely legal” validity and “focal, moral” validity?

A
  • there could be laws that are valid according to purely legla standpoints but are invalid in focal/moral validity
  • binding force comes from moral validity, they can be legally binding but if they go against morals, it is not
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11
Q

Aquinas

A
  • believes that you know on some deep level that certain things are wrong ~ not historally or community sensitive
  • NLT
  • believes laws are rules we are bound to follow - real life = obligations to follow it
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12
Q

According to NLT a law must be

A
  1. known to the relevant political community
  2. rationally ordered towards bringing about the common good - the general wellbeing of that community
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13
Q

positive (temporal) law vs natural (eternal) law

A

positive / temporal: created by humans and their will

natural / eternal: created by nature

  • positive law: particular, community dependent, incomplete
  • natural law: universal, community independent, complete
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14
Q

What is it about a law that makes it valid? that it is binding on us? (Austin)

A

Austin puts forth positivism
Austin says a law is binding if the person issuing the law can harm those who don’t follow it

  • many believe this is flawed, confuses legitimacy with authoritarianism
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15
Q

Hart: rules of obligation and secondary rules

A
  1. Rules of obligation:
    - positive (do ____), negative (don’t ____)
  • these are primary rules of obligation where Hart says a small society is necessary
  1. Secondary rules: depend on primary rules, but primary rules can exist in an infancy stage before needing secondary
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16
Q

Hart: (Secondary Rules)

A

Hart has 3 problems with complex societies with primary rules

  1. Uncertainty: uncertain what the rules are
  2. Inflexibility: unclear how to adjust these rules
  3. Inefficiency: unclear whether and when the rules have been violated
17
Q

Hart (Secondary Rules) pt 2

A
  • to solve the issues of uncertainty, inflexibility, and inefficiency Hart mentions secondary rules
  1. Rules of Recognition: tells us what the rules are
  2. Rules of Change: tell us how to change the rules
  3. Rules of Adjudication: tell us when rules are violated

~ Uncertainty -> Rules of Recognition

  • Inflexibility -> Rules of Change
  • Inefficiency -> Rules of Adjudication
18
Q

Hart

A
  • answers “what is law” by asking what a legal system is
  • answers “what makes a law valid” with - it satisfies all criteria provided by the ultimate rule of recognition
  • Hart is positivist
19
Q

Bork, Noonan, McKinnon, Dworkin, Austin, Hart, Aquinas and Finas, Brest, Llewellyn, Dworkin

A

Bork: neutralist

Noonan: NLT

McKinnon: non neutralist

Brest: non neutralist

Dworkin: non neutralist

Austin: positivist

Hart: positivist

Aquinas and Finas: NLT

Llewellyn: Realist

20
Q

Hart - 2 points of view on ultimate rules of recognition

A

rules of recognition: tell us what the rules are

Internal: appraising or evaluating behavior on the basis of a rule from a participants perspective

external: describing or predicting behavior from an observers perspective, as in someone not in that legal system

  • asking if we accept a law as valid is role of internal recognition,

but if we’re asking if a system/law has validity that is external

21
Q

3 questions we might ask about any rule that acts as law

A

Q: is it valid (main question)
Q1: is it good?
Q2: is it binding?

22
Q

There are also meta questions within those 3 questions

A
  1. is Q distinct from Q1?
    Is validity of.a law distinct from goodness?
  • NLT say no, the validity of a law comes from whether or not it is good
  • Positivists (Hart and Austin): say yes; power of authority trumps goodness
  1. Is Q distinct from Q2?
    Is validity distinct from whether or not it’s binding?
  • NLT say no, a law must be binding to be valid
  • Austin says no, a law is valid insofar as power to punish is binds

~ NLT say all 3 questions are related, Austin says the question of whether or not it is good doesn’t matter

23
Q

Hart: Q’s and External and Internal recognition

A

Internal: Q1 and Q2 arise: is it good/ is it binding

External: Q1 and Q2 don’t arise, only Q: if a law is valid

  • From Hart’s external standpoint: is Q distinct from Q2? is validity distinct from bindingness?

Yes. In so far as from the external perspective we only care about Q, the validity, not the ability to bind

24
Q

Realism and Llewellyn

A

says all this debate over what law is, is useless to lawyers

  • Lewellyn holds this thought, saying rules don’t matter so much as what a judge will do
  • Lewellyn answers “what is law” with the law is what the judges say it is when they settle disputes
25
Q

Hart’s argument against realism

A

realism: rules don’t matter, only what the judges will do. Law is what the judges say it is when they settle disputes

Hart:
Judges settle disputes, yes, but does so by applying the law, not deciding it

  • the law exists prior to and thus is distinct from any act of applying it
26
Q

When judges are considering whether to strike down a given law, should they consider whether the law is morally good?

A

Bork: no
Noonan and McKinnon: yes
Dworkin: yes

27
Q

Should judges consider whether law is legally valid?

A

under NLT moral goodness and legal validity cannot be separate

28
Q

Bork: Originalism

A

Bork believes judges should consider ONLY how the language of the law would have been understood at the time of its passage

  • if judges did anything other than this, they’d be acting as a politician not a legal authority
  • violation of judges role to use moral consideration in the interpretation of the law
29
Q

Objections to Bork’s Originalism (Brest)

A
  1. Epistemological: how could we possibly know how the language of the law would have been interpreted at the time of passage? It is impossible to know enough about the original understanding of any law to settle hard cases
  2. Substantial: part of what is to be considered the original understanding of a law is to consider what would be the morally best application of it
30
Q

Dworkin’s dimensions:

A

Dimension of substance: moral application

Dimension of fit: formal dimension, looks at language and historical context

Threshold of fit: gap in the language / historical context

31
Q

Brest - equal protection of the laws

A

emerges from the threshold of fit, at some point there will be a gap in the language or historical context

  • example: equal protection of the laws: black equality and racial (any kind of discrimination)
32
Q

Dworkin and Brest

A

believe even if we talk about equal protection in the constitution, the dimension of fit isn’t enough, it will need to include a discussion of morals

33
Q

Skeptical Attack on Dworkin’s view

A
  1. if Dworkin’s view is correct then there is no single best interpretation of the law

a. many best interpretation, none better than any others
b. if you admit there is a dimension of substance, then you’ll have moral disagreements on interpretations (personhood and abortion)

  1. If there is no single best interpretation, then there is no rational basis for preferring one interpretation over another
  2. There is some rational basis for preferring one interpretation over another
  3. Thus, Dworkin’s view is wrong
34
Q

Dworkin’s response to the Skeptical Attack

A

Dworkin rejects premise 2, that if there is no single best interpretation then there’s no rational for preferring one over another

  • we decide which is best through judges morality and the judges view on political morality
35
Q

Bork v Brest

A

Bork and Brest care about scope - how broadly does the law apply?

Example: Bork believes equal protection principle applies solely to black people, meant for black v white, not everyone

Bork believes original meaning specifies what level of generality is appropriate

Brest: believes original text doesn’t give you the scope of application

36
Q

Realism v Positivism

A

Realists: only things that matter is what happened and what is going to happen

  • only care about if murder is actually happening, how likely is legislation to stop it? How likely is punishment to stop it?

PHL OF LAW (4 decks)

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