Final Flashcards
What is Natural Law?
Laws based on reason and/or God
What is Legal Positivism?
Laws are a man-made convention
What is Legal Realism?
There are really no real rules. Argues that rules are only rationalizations of the decisions that judges make on extra-legal grounds. The discipline of the law is based on what judges will do.
What is an expectation originalist?
The law was intended to have consequences by its authors.
14th Amendment - Segregation okay, because authors didn’t intend for racial integration to result.
What is a semantic originalist?
Law understood as authors intended it to say.
14th Amendment - It sets general principle that prohibits segregation, even if unexpected.
What is Mill’s harm principle?
The state can only interfere with your liberty if you will harm others by doing that action.
What is “The Reasonable Woman” standard?
You can’t understand me unless you are like me.
What did the court decide in State v. Rusk?
“A reasonable man” is no longer the standard in discrimination, but a “A reasonable woman” is the standard. We can judge conduct by the victim’s perspective.
What did the court decide in Griswold v. Connecticut?
The supreme court ruled that via a right to privacy, the state may not bar the use of contraceptives. Although privacy was not explicitly stated in the Bill of Rights, it was implicitly stated.
What did Robert Bork argue in relation to Griswold v. Connecticut?
He argued that the courts effectively created a new right and that privacy is not included in the bill of rights so the supreme court has no authority to protect it.
What did the court decide in Roe v. Wade?
The court set precedent that women had a right to privacy with their own body, and that abortions are legal within reason and used the trimester framework.
What did the court decide in Planned Parenthood v. Caset?
The court affirmed the right for women to have an abortion, but added a few limitations such as informing the partner if there is going to be an abortion.
What did the court decide in Lawrence v. Texas?
Overturned the legality of sodomy in Texas, allowing individuals to be in a relationship of your choosing. Based on privacy.
What did Joel Feinberg argue in his paper “Offensive Nuisances”?
Mill’s harm principle does not justify prohibitions on offensive conduct that is not harmful. Any penalty for offensive behavior should be light ones.
What is the relationship between offensive behavior and privacy?
The legislative problem of determining when offensive conduct is a public or comininal nuisance could with equal accuracy be expressed as a problem about determining the extent of personal privacy or autonomy
What was John Stuart Mill’s position on censorship?
Absolute liberty is the only way to ensure your beliefs are justified or warranted. Without considering objections to a truth, how can we know the reasons or justification of the true belief?
What are political communities?
Entities in which either are states or intend to become states. Gangs are not political communities.
What is the just-war theory?
Doctrine used to ensure war is justifiable. It is split between justifying going to war and justifying conduct in war.
What are the meaning of jus ad bellum? (Just War Theory)
- Qualifications you must make before you go to war.
1. Just cause – the only just cause is self-defense
2. Right intention
3. Proper authority and public declaration
4. Last resort – have to exhaust diplomacy and military obligations
5. Probability of success – if you have zero probability, you are potentially sacrificing millions of lives for a non-winnable situation.
6. Proportionality – if one person crosses the border illegally, it is not appropriate to go to war (disproportionate). If a nation bombs you, then it becomes more appropriate.
- Qualifications you must make before you go to war.
What is the meaning of jus ad bello? (Just War Theory)
- Justifications for actions during war
1. Discrimination – you have to use discrimination to decide who is a lawful target or an unlawful target
2. Proportionality – the way you fight the war has to be proportionate to the military aims/goal
3. No means that are evil in themselves (mala in se) – poison, deception, dressing up as humanitarian workers
4. Other rules
- Justifications for actions during war
What is realism? (war)
“All’s fair in love and war” – you must do anything you can in order to win the war. Aims to maximize self-interest.
This could include following the rules of war, just as long as it maximizes your self interest.
What is pacifism? (war)
War is always wrong and shouldn’t be engaged.
What is terrorism and what does it threaten?
It is a spectacle, an attack on our senses, and it flaunts our accepted rules. It threatens shared rules in warfare, and basic trust among parties of war.
What is a public vs. a private(civil) law?
Public law: regulatory, administrative, criminal
Private law: torts, contracts, property
What is a justification vs. an excuse?
o Justification: the action was permissible, so you did nothing wrong
o Excuse: the action was wrong, but you’re still not blameworthy
What is the problem with censorship?
censors assume their own infallibility
What does it mean to punish an innocent?
To punish someone with a justification or an excuse.
What is the pure retributivist theory?
o Punishment must be proportional to the crime, and you get joy out of the punishment.
What is the pure utilitarian theory?
o Forward looking
o About deterrence or reform or protection of the society
o But this could justify punishing the innocent
o Also could justify punishing more severely than reasonable
What is the mixed theory?
Punishment must be a combination of the two.
What is Moral Luck?
Making moral judgements based on luck.
What is resultant luck?
Luck based on consequences of actions.
What is circumstantial luck?
Circumstantial moral luck concerns the surroundings of the moral agent. Ex. Nazi citizens
What is causal luck?
The general definition is that actions are determined by external events and are thus consequences of events over which the person taking the action has no control.
What is the definition of punishment?
- Hard treatment
- Inflicted for a violation of legal rules
- On the actual or supposed violator
- Imposed and administered by human beings other than the violator
- Who have the authority to do so under governing legal rules
