JURISPRUDENCE Flashcards
What is jurisprudence?
Jurisprudence involves arguments about the nature of law
Name three key questions in jurisprudence.
What is the nature of law, how do lawyers reason, and what is the relationship between law and morality
What is stare decisis?
Stare decisis is the principle that a court is bound by decisions of a higher court
What is ratio decidendi?
The ratio decidendi is the rationale or key reasoning that drives the final judgment in a case
What is Wambaugh’s test used for?
Wambaugh’s test is an inversion test used to determine the ratio decidendi of a case
According to the source, can generative AI help in determining ratio?
No, generative AI has no concept of truth or falsity and is not an aid in determining ratio
What are two reasons for following precedent?
Consequentialist reasons, such as surety of decision-making, and formal justice reasons, such as treating people equally in similar circumstances
What is formal logic?
Formal logic is the study of deductively valid inferences and how conclusions follow from premises based on the structure of arguments
Why do American Realists believe logic alone is insufficient in law?
They believe logic alone cannot reliably extract the precedent from a case
Name three American Realists mentioned in the text.
Oliver Wendell Holmes, Karl Llewellyn, and Jerome Frank
What were American Realists interested in?
The practical issue of how a decision will be made
What is ‘the hunch’ in the context of American Realism?
The hunch is the intuition about what is the right answer, which may come before the rule of law
What did Jerome Frank think about the idea of objective answers in law?
Frank believed that there are no right or objective answers to any legal question
According to the American Realists, what is ‘black letter law’?
They believe black letter law does not exist and is a delusion
What is the ‘vibe’, according to the American Realists?
The ‘vibe’ is an intuitive reaction to a case that is different between legal professionals and the general public
According to the American Realists, does law direct a ‘correct’ answer to legal questions?
No, they believe law cannot direct a ‘correct’ answer, and legal argument is used to back up a ‘hunch’
Who argued that there are ‘right’ legal answers to legal questions?
Dworkin argued that there is a right answer to every legal question
What did Hart attempt to do in his 1961 book ‘The Concept of Law’?
Hart attempted to build on the work done by legal positivists and solve deficiencies in their theories
What is Hart’s theory of law?
Hart’s theory is that law is a body of rules that can be arrived at by application of human reason
What is Bentham’s view of law?
Bentham believed laws are simply commands of a sovereign, backed by a sanction
What is a sovereign, according to Bentham?
A sovereign is a body that can enjoy regular obedience
What is legal positivism?
Legal positivism is the idea that a law could be invalid because it violates natural law and is a conceptual confusion
What are primary and secondary rules in Hart’s model of law?
Primary rules are rules of behavior, and secondary rules are rules about rules
What is Hart’s rule of recognition?
It is an assumption members of a community make about what constitutes law in a particular country
What does Hart say about the language of law?
Law is expressed in natural language, which comes with ambiguity and uncertainty
What is the ‘penumbra of uncertainty’ according to Hart?
The unavoidable problem of law that exists because of the ambiguity of language
What kind of moral philosopher is Dworkin?
Dworkin is a non-consequentialist
What are the two types of moral theories mentioned?
Consequentialist and non-consequentialist
What is virtue ethics?
Virtue ethics is the idea that the right thing to do is governed by what a virtuous person would do
What is the difference between objectivist and subjectivist views of morality?
Objectivists believe moral claims describe something that is mind-independent, while subjectivists believe morals are based on personal tastes and opinions
What does Dworkin mean by saying there is a right answer to every legal question?
Dworkin means that for every legal issue, there is a correct legal outcome; there are no gaps or grey areas in the law
What is the significance of the Al-Kateb case in relation to Dworkin’s theory?
It is an example used to show that we can criticize judgments as being wrong, which implies an underlying concept of legal truth
What are principles, according to Dworkin?
Principles are like maxims of equity or moral principles that help us understand legal rules
Who is Judge Hercules in Dworkin’s theory?
Judge Hercules is a hypothetical judge of infinite intelligence who can formulate a theory about any law and maximize consistency
According to Shapiro, what are the two modes of law?
Everyday mode and litigation mode, and Dworkin is primarily discussing the theoretical litigation mode
What is truth conditional semantics?
A theory that captures some of the public aspects of meaning and how language describes or represents the world but language is also intentional
According to Grice, what is the relationship between meaning and intention?
The meaning of a sentence is associated with the intentions of a speaker
What are two types of meaning, according to Grice?
Utterer’s meaning and dictionary meaning
According to the source, does AI have intentions?
No, the source notes that AI has no intention or duty to the truth
What is originalism in constitutional interpretation?
Originalism bases the meaning of a constitutional provision on how the public at the time of ratification would have understood it
What is textualism?
Textualism is the approach of using literal or dictionary meaning to interpret a legal text
What does Scalia say about the meaning of the constitution?
The meaning is the meaning given to the words by the normal canons of language use at the time it was drafted
What is Dworkin’s approach to interpreting the Constitution?
The meaning is the one which is the best possible interpretation of the Constitution
What does Stanley Fish say about literal meaning?
He argues there is no such thing as literal meaning that is read off the face of a document without interpretation
What is the social contract theory?
The idea that people live together in society in accordance with an agreement that establishes moral and political rules
What is Rawls’s concept of the ‘original position’?
A hypothetical situation where one is behind a ‘veil of ignorance’ about their place in society
What are the two elements to social contract theory?
A description of an ‘initial situation’ and a description of the contractors as rational and self-interested
What is Nozick’s concept of self-ownership?
The idea that each person owns their own body, abilities, and talents
What is the difference between Locke’s common view and Nozick’s critical view on property acquisition?
Locke (common view) argues that mixing labor with unowned things creates ownership, whereas Nozick views property through a workmanship model
What is the maximin principle, according to Rawls?
The principle of choosing a system where the worst-off person is in the best possible position
