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1
Q

three elements of society

A
  • approved by the consent or counsel of the magnates
  • approval by the public people
  • approval of the king
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2
Q

what is law?

A

a general command of judicious men, a just sanction ordering virtue and prohibiting its opposite

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3
Q

what is justice?

A

the constant and unfailing will to give each his right, as under the law

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4
Q

what is jurisprudence?

A

knowledge of things divine and human, the science of the just and the unjust

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5
Q

science

A
  • science is a principle
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6
Q

science of principles

A

that from which something comes - drives your actions- principles at a high sense of generality can be examined for application

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7
Q

law and rights

A

law and rights are complimentary

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8
Q

natural law

A

that which nature (God) taught all living things
- taught by nature by instinct
- laws of human natures that are accessible to us inherently
- a certain due that nature allows to every man

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9
Q

jus gentium

A
  • the law which men of ALL nations use, which falls short of natural law since it is common to all animate things born on the earth, in the sea, or the air
  • a portion of law which applies to rational beings
  • from ancient roman legal system - not a body of statute law or legal code, but rather law thought to be held in common by all people
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10
Q

3 main developments for American legal tradition & common law

A
  • development of law as distinct area of study (beginning of specialization)
  • found/collects common norms across ppl
  • set up a court system (the court of kings bench)
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11
Q

Singer’s “gap fillers”

A

we cannot write a law for every situation, therefore the common law (gap fillers) fills those holes in the written law

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12
Q

prioritization of common law

A

if there is no written law, unwritten laws can be used to harmonize the legal system with the natural law.
- implemented through CL principles

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13
Q

prohibitions of the king

A
  • body of law that has been collected and administered by the courts and a king who does not want the disputes to be judged based on the common law collected
  • king trying to circumvent the system
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14
Q

coke’s prohibition

A
  • coke issued a prohibition against the high court to prevent the high courts from ruling on the certain class of disputes
  • the king does not agree - he states that he thinks the law is based on reason, and that he should be able to rsbly rule on his own
  • coke tells king he is not learned in the laws of his realm of england
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15
Q

outcome of coke’s prohibition

A

coke used the magna carta and Bracton’s philosophy in his argument against the king and was fired

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16
Q

magna carta

A
  • written in favor of free men
  • law is built into ppl - evident by ppl seeking to rule themselves and protect themselves
  • the king is governed by the same laws as the ppl
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17
Q

magna cartas fundamental norms

A
  • no selling justice
  • freedom of the church
  • trial by jury of peers
  • widows able to keep land and not forced to remarry
  • appoint fair and noble judges who know the law (unlike the king)
  • Fifth Amendment: law of the land
  • venue: accessible courts
  • weights and measures
  • property rights and inheritance
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18
Q

king james view on parliaments role

A

king james believed it was parliaments job simply to ratify and create an environment favorable for the collection of revenue James needed to administer and protect the kingdom

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19
Q

coke’s doctrine on parliament

A

when an act of parliament is against common right or reason, or impossible to be performed, the CL will control and adjudge such act to be void

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20
Q

impartial decision-maker (Bonham case)

A

coke decided that a person is entitled to an impartial decision-maker

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21
Q

writ of habeas corpus

A

make a request for the authority by which they are being held prisoner

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22
Q

statute of magna carta

A
  • every man ought to enjoy his liberties out of the body of parliament
  • no mans liberty shall be taken away except by the law of the land
23
Q

petition of right

A
  • every man should have the right to due process of law
  • knowledge of what authority governs
  • presence of legitimate authority
24
Q

earl of manchester

A

since only the king has the power to call and dissolve parliament, it is not possible for him to be a traitor against parliament

25
earl of northumberland
king cant be a traitor bc no law forbids him from levying a war
26
Normative Methods
finding room for morality in the law
27
Political theory and Philosophy:
Making arguments does not have to be mechanical, but allows room to insert reason and ethical decisions
28
John Miltons view on fallen human nature
Humans are born free in the image of God, but because of fallen human nature "agreed by common league to bind each other from mutual injury" in the form of "cities, towns, and commonwealths"
29
aristotle
King is "him who governs to the good and profit of his people, and not for his own ends"
30
thomas hobbes theorist
Usually regarded as the first great modern political theorist – one of the earliest examples of social contract theory – if part of a nation state, some rights are compromised to be part of that society
31
focus of Leviathan
Focused on how gov could maintain order - All humans are equal in attaining their ends, but once they fight over similar things ("condition of war of every one against every one"), they become enemies
32
subjects have rights except:
▪ Self harm or harm to others ▪ Self-confess ▪ Ends that undermine the sovereignty ▪ Refusal to fight on behalf of commonwealth because it undermines domestic security
33
when does sovereignty end?
when a monarch relinquishes it for himself and his heirs, banishes a subject, or is taken as a prisoner of war unless his subjects yield obedience to magistrates
34
lockes belief about the governments existence?
Locke believed that the government exists for the people’s benefit and for protection of individual liberties, including human welfare
35
progression of hobbes/milton
- people have the right to join in a civil society by forfeiting some of their rights, but no one can force them to force their natural rights - May have to give up some rights in exchange for the protection of others (similar to Hobbes’ theory)
36
just and equal laws
whatever laws they make, they must be just, fair, and equal under the law
37
mayflower compact
* Wasn’t a constitution – used religious and moral values to govern civil situations * Didn’t solve the matter of questionable legal rights
38
why was the mayflower compact necessary
First government to establish self-government in the new world
39
what is law based on?
scriptural norms and manner codes
40
why are pleadings considered simple?
because they do not use the magnitude of “writs” as in England- should not be difficult to file a complaint
41
property ownership
insuring property rights and security of said property
42
what are the 2 overriding rule which should govern all interactions w/in a community?
- justice and mercy - Only way to avoid straying is to observe laws of Micah, to do justly, love mercy, and walk humbly
43
virtue in moral foundation
Virtue should be the moral foundation of the community
44
true christians in body of christ
True Christians are of one body of Christ – promotes unity in helping others, loving others, referring to scripture
45
rhode island patent
- the first legal recognition of the Rhode Island towns by the mother country
46
what did the rhode island patent authorize
- authorized the union of Providence, Portsmouth, and Newport under the name of “the incorporation of Providence Plantations in Narragansett Bay in New England,” - granted these towns “full power and authority to govern and rule themselves” and future inhabitants by majority decision, provided that all regulations that were enacted “comformable to the laws of England” so far as the nature of the place would permit
47
what 2 claims were brought up in the laws and liberties of massachusetts?
- religions liberty and speech - - -- They believe its that magistrates duty to ensure everyone’s spiritual and civil wellbeing Similar to magna carta similar to Tierney (we have rights we’re entitled to as humans)
48
what did the maryland toleration act do?
Did not bring complete religious freedom, but provided modest protection for Catholics in Maryland and set a precedent
49
what was the purpose of the maryland toleration act?
The act was meant to ensure freedom of religion for Christian settlers of diverse persuasions in the colony
50
honoring of religious freedom
- honored as long as there is no mutiny or attempt to overtake the government - neither forced to a particular religion or forced away from a particular religion - does not override law/community preservation
51
what is fundamental law?
such a law as that God and nature have given to the ppl
52
what are examples of fundamental law?
o Election of supreme governors (idea of consent) o Every subject shall and enjoy subject title to, so that it cannot be taken away from him o Law and liberties
53
judicial review
judicial branch able to review legislation on behalf of the person whose property was taken

moral foundations (1 decks)

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