Jurisprudence Test 1 Flashcards
What did Hobbes think about the Rule of Law?
There are no moral Laws.
We have a society for fear of our neighbor, to restrain them.
Blackstone
Expanded the teachings of Thomas Aquinas.
Became known as the most famous legal theorist.
What is the purpose of law for Aquinas?
To promote the greater good of the community
What form of Natural Law does Locke recognize?
State of Nature: there are moral laws
We have a society as a moral imperative to seek out a better enforcement of moral law.
Eternal Law
Unchanging reason of God.
God’s plan for the Universe that affects everything.
Divine Law
Applies to religion and Church issues.
Apprehended through revelation.
The Old and New Testament.
Necessary for the revelation of salvation for man.
Natural Law
Laws that can be known through our own reasoning
Determines an individual’s end.
Presupposes a necessary connection between law and morality.
Necessary to inform man of his ultimate need for goodness.
Human Law
Emulate Natural Law to promote justice and the will of God.
Necessary to help us when our own reason fails.
Penalty for violating divine and natural law.
Framer’s Intent
The goal is to determine what the framer’s intended when they drafted the document?
Original Understanding
Interpreted based on how it was understood in society during ratification.
No right to privacy other than those that are enumerated.
Dworkin
Created an interpretive theory of the law that was highly criticized.
A judge must apply the best philosophy to the Constitutional Issue.
Critics stated that philosophy destroyed the Rule of Law.
What does a legal realist do with the concept of natural rights?
To legal realist there are no natural rights.
Strong proponents of Natural Law
Montesquieu and Charles Louis
Legal Positivism
Rejection of the Natural Law Theory
Law consists of merely a social construct
Rejects links between positive law and morality.
Substantial Law
Defines or creates the rights and obligations of persons and governments.
Procedural Law
Provides the steps one must follow in order to avail oneself of one’s legal rights.
Where does natural law derive its meaning and existence?
The Nature of God
Main Proponent of Legal Realism
Holmes
What event launched the race movement?
Montgomery Bus Boycott
Dereck Bell
Harvard professor/Obama Mentor
“I live to harass white folks”
Hypothetical of Aliens-space traders
Richard Delgado
Legal Instrumentalism
Rule of Law does not apply to minorities
Paul Butler
Jury Nullification
Ignores the facts that a crime in non-violent especially in the context of drugs.
Criminal Justice; Retributivist Approach
Ensures the wrongdoer receives just desert.
Criminal Justice; Utilitarian Approach
Criminal systems promote the common good
Includes rehab; deterrence as main objectives
Main Proponent of Utilitarian Approach
Jeremey Bentham
Where does the concept of Institutional Racism stem from?
Black Power Movement
Egalitarian
No difference in roles for men and women
Women can be elders/pastors
Galatians 3:28
Complementarian
Men and women are created equal but with different and distinct roles, which predate the fall.
Feminists usually reject this view.
Main Proponent of Critical Legal Studies
Justice Holmes
Critical Legal Studies
- Marxist ideology
- Law is a tool to keep the wealthy in power
- Deny the existence of the Rule of Law
- Bowers v. Hardwick
Roberto Younger
CRIT
The Rule of Law never exists
Legal Feminism
Feminists believe that history was written from a male point of view and does not reflect women’s role in making history and structuring society.
Legal Realism
rules are arbitrary and in fact are the imposition of the will of one class upon another class.
Legal Philosophpy
Anti-thesis of Natural Law
Liberal Feminist
view this as discrimination
Patriarchy has been largely eliminated
Government should not interfere with individual liberties
Men and women should be treated by the same rules (pure equality)
Radical Feminist
view this as oppression
Patriarchy still exists
Gov’t may interfere with liberty
Gov’t may treat women differently to help them
Posner on Allocated Good
Value a person places = determined by her economic behavior-how much is she willing and able to pay for it
