Final Exam

Question 1

Austin and Hart Debate

Define Austin’s Theory

Answer 1

Allows for the existence of bad laws.

Divine law, positive morality, and positive law can all exist.

Natural Law Theory can lead to anarchy.

Laws are commands issued by the commander, aka the sovereign, whom is obeyed by the majority. His commands are enforced by the majority. This is also known as the Pedigree Thesis.

Question 2

Austin and Hart Debate

Define Hart’s Theory

Answer 2

Hart attempted to refine Austin’s positivist interpretation

Law is the union of primary and secondary rules.

Also believes in: rules of change, rules of adjudication, and rules of recognition.

Question 3

Primary Rules

Answer 3

Primary rules are rules for behavior.

Hart

Question 4

Secondary Rules

Answer 4

Secondary rules are rules about rules (how to make, modify, and interpret primary rules.)

Hart

Question 5

Rules of Recognition

Answer 5

allows the identification of the rules that make up law, determines if they’re binding/authoritative, provides hierarchy of rules, are neither legally valid nor invalid, are not subject to any other rule, and are generally accepted.

Hart

Question 6

Rules of Change

Answer 6

the rule by which existing primary rules might be created, altered or deleted.

Hart

Question 7

Rules of Adjudication

Answer 7

rule by which the society might determine when a rule has been violated and prescribe a remedy.

Hart

Question 8

Rawls

Answer 8

We receive benefits from the political community, so we all become obligated to participate.

The obligation you have is not the government, it is to your fellow citizens.

Sometimes we have obligation to obey what we think is an unjust law.

Also, sometimes we have an obligation to obey a law even in a situation where more good would seem to result from not doing so.

Must balance obligation to oppose an unjust statute against obligation to abide by a just constitution.
In accepting a constitution, one becomes bound by idea that given a majority in behalf of a statute, it is to be enacted and properly implemented.

Just constitution: required that everyone have an equal right to the most extensive liberty compatible with a like liberty for all and inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone’s advantage.

Our moral obligation to obey the law is a special case of the duty of fair play.

Everyone who participates in a reasonably just, mutually beneficial cooperative practice has an obligation to bear a fair share of the burdens of the practice.

Anyone who acts as a free rider is acting wrongly

Only applies if members of society regard it as a cooperative enterprise

The principle form of cooperation is abiding by the law

The members must honor their obligation to one another to obey the law.

Question 9

Simmons

Answer 9

Fair play principle is only reasonable if you have accepted the benefits

Claims that states are not legitimate because legitimacy requires interaction and agreements between state and citizens and states do not do this.

Fair play binds participants only. A participant is someone who pledged her support or agreed to be involved, or someone who played an active role in the scheme after its creation.

Only accepting benefits can bind you. Open benefits do not count.

Question 10

Open Benefits

Answer 10

the rule of law, protection by armed forces, pollution control, maintenance of highway systems, and avenues of political participation (Simmons)

Question 11

Smith

Answer 11

Smith does not think we are obligated to obey the law because of what the gov. does for us.

Obeying the law involves some personal sacrifice.

Question 12

Dworkin on Principle

Answer 12

set of standards other than rules. Standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.

Question 13

Dworkin on Policy

Answer 13

kind of standard that sets out a goal to be reached, an improvement in some economic, political, or social feature of the community.

Question 14

What does Dworkin say that law is?

Answer 14

An interpretation of what other judges have decided what the law is.

Question 15

Dworkin

Answer 15

Criticizes positivism and legal realism.

Question 16

Dworkin;s view on judges

Answer 16

Since judges are for the most part not elected and since they are not responsible to the electorate in the way the legislators are, it seems to compromise that proposition when judges make new law

Judges think of themselves as authors in the chain of common law.

Chain Novel- make it consistent and best possible story that you can, as if it were written by one person, judges are the author.

Two components: Judicial decisions must fit and justify existing legal tradition. Decision must make the entire system the best it can be.

Question 17

Dworkin on Integrity

Answer 17

The quality of being honest and having strong moral principles; moral uprightness- not what he means.

Question 18

What does the adjudicative principle of integrity instruct judges to do, according to Dworkin?

Answer 18

The adjudicative principle of integrity instructs the judges to identify legal rights and duties expressing a coherent conception of justice and fairness.

Law as integrity requires a judge to test his interpretation of any part of the great network of political structures and decisions of his community by asking whether it could form part of a coherent theory justifying the network as a whole.

Question 19

Schauer

Answer 19

Central tenet of positivism is consequently taken to be its denial of any necessary connection between law and morality.

Positivism is correct as long as a community could establish as law a set of norms or decision making process not dependent for its status as law on its moral correctness.

Agrees with presumptive positivism- a descriptive claim about the status of a set of pedigreed norms within the universe of reasons for decision employed by the decision makers within some legal system

Acknowledges both pedigreed rules and broader concerns—social, economic, moral

Question 20

Fugitive Slave Laws

Answer 20

A federal statute passed in 1793 required that all slaves be returned to their owners even if they had escaped to a state in which slavery was prohibited.

Required legally people must do an immoral act

“Whenever judges confronted the moral-formal dilemma, they almost uniformly applied the legal rules

Question 21

Natural Law

Answer 21

a principle or body of laws considered as derived from nature, right reason, or religion, and as ethically binding in human society.

Question 22

Aquinas

Answer 22

Natural Law Theorist

Natural law is dedicated to the common good.

An unjust law is not actually a law.

There is no obligation to obey an unjust law.

5 conditions for a morally binding law

Promulgating is necessary for law to obtain its force.

The natural law is promulgated by the very fact that

God instilled it into man’s mind so as to be known by him naturally.

Human law falls short of the eternal law.

Human law likewise does not prohibit everything that is forbidden by the natural law.

Laws me be unjust by: being contrary to the human good or being opposed to the divine good.

Question 23

Aquinas’s 5 Conditions for a morally binding law

Answer 23

1. Reasonable.
2. Made by someone with authority.
3. Directed toward the common good.
4. Promulgated.
5. Just.

Question 24

Finnis

Answer 24

Natural Law Theorist

Human flourishing is the overall good to be pursued.

Generally applicable moral standards exist.

There is a need for positive because natural law is incomplete and there is a need for compulsion.

Positive law is valid if it originates in a way that is legally valid and the law is not materially unjust.

In natural law there is no legal validity

They cannot say of a law that is legally valid but morally wrong. If it is wrong and unjust, it is also invalid in the only sense of validity they recognize

Question 25

Bix

Answer 25

Natural Law Theorist

Natural law theory is a mode of thinking systematically about the connection between the cosmic order, mortality, and law, which in one form or another, has been around for thousands of years

Much of modern natural law theory has developed in reaction to legal positivism

17th and 18th century developments led to a diminished role of God in natural law theories

Positive laws consistent with natural law have the power of binding in conscience

Unjust laws do not create moral obligations, though one might have an obligation to comply publicly with such laws if this is necessary to prevent a greater evil

Natural law and natural rights thinking have influenced the development of legal doctrines. Ex: constitutional rights and civil liberties

Question 26

What is legal validity according to Bix?

Answer 26

term we use to refer to whatever is conventionally recognized as binding

Question 27

What are Fuller’s eight principles of legality?

Answer 27

1. Law should be general
2. It should be promulgated so that citizens are aware of the standards
3. Retroactive rule making should be minimized
4. Law should be understandable
5. They should not be contradictory
6. They should not require conduct beyond the abilities of those affected
7. They should remain relatively constant through time
8. Should be congruence between the laws announced and their actual administration/application.

Question 28

Fuller

Answer 28

Natural Law Theorist

Potential law must pass a moral test if it is to be a law in the fullest sense

Question 29

Finnis and Nusbaum

Answer 29

Homosexuals should be used in the military due to their intense love, each will fight better, wising to show himself in the best light before his lover

Plato- the highest form of human life is one in which a male pursues the love of a young man along with philosophy

Aristotle- females are incapable of good character

“Conjugal sexual activity and only conjugal activity is free from the shamefulness of instrumentalization that is found in masturbating and in being masturbated or sodomized

Question 30

Nuremberg: A fair trial?

Answer 30

A dangerous precedent

October 18, 1945- 20 individuals and organization were charged with conspiracy, crimes against peace, war crimes, and crimes against humanity

Crimes against peace- participated in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances

Law is not power, but a restraint on power

Question 31

Legal positivism

Answer 31

A school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.

There is no necessary connection between law and morality.

Morality may exist but should not be connected to legal systems.

Law is a social fact that is constructed by people.
Immoral laws might be bad laws but they are still law.

Question 32

Austin on Legal Positivism

Answer 32

Laws are either set by god or set by people.

Laws set by people are either set by political superiors or not set by political superiors.

Laws not set by superiors are not really laws. Ex: international law.

Laws must be a command:

1. Prescription of something to do or not to do. 
    2. A Threat of consequence/sanction for not   complying. A sanction creates the duty/obligation to obey
3. The command must be made known. 

Command must be issued by a sovereign, or someone in society who is obeyed by the bulk of the population.

The person does not obey anyone else.

Commands by anyone else are not law.

The natural law theory can lead to anarchy.

Austin’s theories are simple.

Austin’s theories allow for the existence of bad laws.

Austin’s theories clarify the relationships between divine law, positive morality, and positive law. All can exist.

Question 33

Walker v. Birmingham

Answer 33

On Wednesday, April 10, 1963, officials of Birmingham, Alabama, filed a bill of complaint in a state circuit court asking for injunctive relief against 139 individuals and two organizations

The circuit court judge granted a temporary injunction as prayed in the bill, enjoining the petitioners from, among other things, participating in or encouraging mass street parades or mass processions without a permit as required by a Birmingham ordinance

Upon these issues the court found against the petitioners, and imposed upon each of them a sentence of five days in jail and a $50 fine, in accord with an Alabama statute

Question 34

King on Civil Disobedience

Answer 34

IN ANY nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action

An unjust law is no law at all

A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.

An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote

There are some instances when a law is just on its face and unjust in its application.

When you break an unjust law, you must still accept the punishment for breaking the law

Question 35

Civil Disobedience

Answer 35

A symbolic, non-violent violation of the law, done deliberately in protest against some form of perceived injustice. Mere dissent, protest, or disobedience of the law does not qualify. The act must be nonviolent, open and visible, illegal, performed for the moral purpose of protesting an injustice, and done with the expectation of being punished. By peacefully and openly violating the law and submitting to punishment, those engaging in civil disobedience hope to draw attention to the law they hope to reform, the injustice they hope to stop, or the policy or practice they hope to end.

A politically motivated, public, nonviolent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.

Question 36

Features of Civil Disobedience

Answer 36

1. Conscientiousness
2. Political motivation (Appealing to a common conception of a justice)
3. Aimed at changing the law.
4. Publicity
5. Non-violence
6. Expectation and acceptance of punishment

Question 37

Justifying Civil Disobedience (Rawls)

Answer 37

Right to engage in CD when the following conditions are met:

There is deliberate injustice over an extended period of time

Injustice is a clear violation of the liberties of equal citizenship

Willing to allow others to protest similarly in similar cases

CD would be likely to further one’s ends

Question 38

Dworkin on Civil Disobedience

Answer 38

They recognize that disobedience to law may be morally justified, but they insist that it cannot be legally justified

Society could not function if everyone disobeyed laws he disapproved of or found disadvantageous

Almost any law which a significant number of people would be tempted to disobey on moral grounds would be doubtful—if not clearly invalid—on constitutional grounds as well.

We MUST ALSO REJECT the second model, that if the law is unclear a citizen may properly follow his own judgment until the highest court has ruled that he is wrong.

It is unfair to punish men for disobeying a doubtful law.

Does not agree with protesting draft protestors.

Conviction under a vague criminal law offends the moral and political ideals of due process

Question 39

Legal Realism

Answer 39

Legal realists maintain that common-law adjudication is an inherently subjective system that produces inconsistent and sometimes incoherent results that are largely based on the political, social, and moral predilections of state and federal judges.

Adjudication is not logical or deductive. Judges respond primarily to the facts of the case rather than legal rules.

Judges are not impartial.

Statutes and other sources of law are not law until courts say they are.

What is written does not make up what is law. Law is what gets enforced by judges.

Question 40

Llwellyn

Answer 40

Legal Realist

Real rules, according to legal scientists, are called the practices of the courts, and not rules at all

The real rules and rights, what the courts will do in a given case, and nothing more pretentious- are then predictions.

Accurate statement of a real rule or of a right includes all procedural limitations on what can be done about the situation

Law is not a set of rules, but instead is made up of what officials do about disputes

Question 41

Kennedy

Answer 41

Legal Realist

Strike of union bus drivers hypothetical.

Discusses how a judge uses his own opinion to decide a case.

“I want these specific workers to get away with obstructing the buses, and I want to move the law as much as possible in the direction of allowing workers a measure of legally legitimated control over the disposition of the MOP during a strike”
It is an important part of the role of judges and lawyers to test whatever conclusions they have reached about the correct legal outcome by trying to develop the best possible argument on the other side

What would betray legality would be to adopt the wrong attitude at the end of the reasoning process when I’ve reached a conclusion about what the law requires and found it still conflicts with how I want to come out

Question 42

Frank

Answer 42

Legal Realist

Hypothetical case about a taxi company wanting to sue another taxi company.

Lawyers plan to change company from Kentucky to Tennessee to bring about federal question through the diversity of citizenship.

“Law, then, as to any given situation is either (a) actual law, i.e., a specific past decision, as to that situation,’ or (b) probable law, i.e., a guess as to a specific future decision.”

Actual law- specific past decision on that issue

Probable law- a guess on future decisions

Question 43

Holmes

Answer 43

Legal Realist

“A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.”

Argues that morality and law are separate.

Opposes natural law.

Study of law is the prediction of how and when the power of the state will act against a person

He thinks we should get rid of all moral terms embedded in the law

Question 44

Mill on Liberty

Answer 44

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

The only part of the conduct of any one for which he is amenable to society, is that which concerns others.

Does not think this applies to children.

If any one does an act hurtful to others, there is a prima facie case for punishing him, by law, or where legal penalties are not safely applicable by general disapprobation

A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury

Principle of Utility

Believes that action does not often affect only the individual

Free speech- should not be limited

Suicide- it would prevent person from contributing to society in a meaningful way. Should therefore stop people from committing suicide

Harm- injures the rights of someone else or set back important interests that benefit others
Ex: not paying taxes

Offense- hurt feelings
Less serious should not be prevented

Question 45

Principle of Utility

Answer 45

(Mill) should only do what brings the greatest amount of happiness to the greatest number of people.

Question 46

Stephen on Liberty

Answer 46

All voluntary acts are caused by motives. All motives may be placed in one of two categories—hope and fear, pleasure and pain.

Morality is and must be a prohibitive system.

Positive morality is nothing but a body of principles and rules more or less vaguely expressed, and more or less left to be understood, by which certain lines of conduct are forbidden under the penalty off general disapprobation and that quite irrespectively of self-protection

Private vices which are injurious to others may justly be punished if the injury be specific and the persons injured distinctly assignable, but not otherwise.

Before an act can be treated as a crime, it ought to be capable of distinct definition and of specific proof, and it ought also to be of such a nature that it is worthwhile to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it.

A law which enters into a direct contest with a fierce imperious passion, which the person who feels it does not admit to be bad, and which is not directly injurious to others, will generally do more harm than good

Laws against bastards punish them for the sins of their parents.

People are often restrained from action by fear of moral sanction when action has nothing to do with self-protection/harm.

Mill’s theory is contrary to every system of morality

Morality must be a prohibitive system
Human nature- people must be restrained
Safeguards society from destruction

Way to prevent vice: law and public opinion. Should be only used in most extreme cases.

Question 47

Feinburg on Liberty

Answer 47

The offense principle- it is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense to persons other than the actor and that is probably a necessary mean to that end -320

The principle asserts, in effect, that the prevention of offensive conduct is properly the state’s business

To offend- to cause another to experience a mental state of a universally dislike kind

Offense is less serious than a harm

Even if there must be defined crimes with specified penalties for purely offensive conduct, however, the penalties should be light ones: more often fines than imprisonment, but when imprisonment, it should be measured in days rather than months or years

Purely offensive crimes should always be misdemeanors, never felonies

Harm to others is not the only reason to create law

Offense- annoyance, disappointment, disgust, embarrassment, fear anxiety, minor aches and pains
Offense principle- some behavior is offensive but not harmful

Ride on the bus hypotheticals

Accepts a limited offense principle
Should be prohibited when they are universally offensive, and not reasonably avoidable