Key Definitions Flashcards
Define the ‘law’
‘The body of rules, whether formally enacted or customary, which a particular state or community recognises as governing the actions of its subjects or members and which it may enforce by imposing penalties.’
Define legal reasoning
Forms of legal reasoning are the methods that lawyers use to apply laws to facts in order to answer legal questions. The meaning of a legal rule and how it should be applied are often subject to multiple interpretations.
Define Judicial reasoning
Judicial reasoning refers both to the process of thought by which a judge reaches a conclusion as to the appropriate result in a case, and to the written explanation of that process
Define Morality
Principles concerning the distinction between right and wrong or good and bad behaviour. Philosophers refer to ethics as the study of morality and metaethics looks at the nature of morality. Moral duty: a duty owed by people to each other as a function whatever moral or ethical system is in place.
Define Jurisprudence
Jurisprudence is the philosophy and theory of law. It is concerned primarily with what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law.
The Rule of Law is a very key concept within jurisprudence. Jurisprudence allows lawyers to reflect on why the law is so important in the real world. It is not a mere theoretical or mystical exercise as it is sometimes portrayed.
Define Natural law
Natural Law: The basic principle of natural law is that, as a higher law, any law made by man must accord with its principles in order to be valid. If law is not moral, then it is not law and has no authority.
Define the theory of legal positivism
Legal Positivism: Positive law is considered valid by virtue of its source only (and thus would be valid despite a lack of moral content). Legal positivism considers that law is a human construct and does not recognize a higher natural law.
Define the theory of legal Realism
Legal Realism: Legal realism takes a different view to that of natural law or legal positivism. Legal Realists are less concerned with what the law should be, or its precise wording in statute, instead holding the view that the law should be understood in the context of how it is used in practice.
Define was is meant by the grundnorm
The grundnorm: Legal theorists give a name to a law which provides legitimacy to subsequent leafs: the term grundnorm. Coined by Kelsen which translates to ‘basic rule’. The idea being that all laws can be categorised as ‘norms’ which in english means ‘rules
Define consequentialism
Consequentialism determines whether an act is morally justified or not, depending on whether it produces good or bad consequences overall (utilitarianism)
Define Rule Consequentialism/Utilitarianism
Rule consequentialism is an alternative approach to regular consequentialism which promotes the following of rules that will normally overall produce good consequences.
Define deontology
Deontology provides a quite different approach to ethics from consequentialist utilitarianism and states that there are certain moral rules which must be followed regardless of the circumstances of a scenario.
Define Principlism
Principlism involves applying a set of prima facie principles to an ethical dilemma. A popular way of applying a deontological approach is through an approach known as principlism. Principlism avoids some of the grand themes, through considering an application of the issues at hand, the correct ethical approach becomes apparent
Define Non-maleficence
Non-maleficence: is the principle that a lawyer should not harm a client. An obvious example is that the lawyer should not steal their clients funds - it’s a principle of what a lawyer should not do.
Define Beneficence:
Beneficence: the principle that the lawyer should seek to promote the well-being of their client. It’s a positive principle requiring action from a lawyer. The lawyer should seek to do his or her best to advance the client’s case.
Define Justice
Justice: The requirement of justice means that the lawyer mist act fairly as between different clients and also to promote justice more widely. This involves a commitment to the well-being of the legal profession and to the justice system as a whole. However its the concept of what is meant by ‘justice’ which is complex. Most theories of justice is that it’s the principle of formal equality of all people.
Define Hermeneutics
Hermeneutics provides a very different way of responding to ethical dilemmas from those discussed so far as it promotes listening and talking through problems. Through articulating the issues and discussing them a solution will emerge.
Define Casuistry
Casuistry avoids grand principles and applies them to the factors of the case, as does for insurance principlism, instead Casuistry recommends dealing with cases one by one and relying on the agreed approach. Lawyers feel familiar with this as it holds similarities to the system of precedent in common law jurisdictions such as the UK
Define ethics of care
Ethics of care: This approach is critical of traditional legal ethics with its focus on rights, individual autonomy and abstracted universal principles and it focuses on relationships and care. Rather than valuing individual freedom it values the interdependence and mutuality in relationships. Ethics of care sees carr as the core ethical value. An ethical response to a dilemma is one that promotes good caring relationships.
Define Virtue ethics
Virtue ethics: promotes the development of good characteristics that are seen to be to promote human flourishing. Ethical analysis should encourage us to be more virtuous people rather than to seek the solution of particular dilemma
Define Relativism
Relativism: This form of ethics is called relativism as there’s not necessarily wrong and right answers to moral problems.
Define Partisanship
Partisanship is a controversial principle, the idea that the lawyers primary role is to defend a clients rights and to put forward the best case possible. This must be done with no consideration of the impact on others.
Define Hyper-Zeal
Hyper-Zeal: The argument in favour of hyper-zeal, that is that the lawyer should go ‘all out’ for his or her client is that a client has legal rights but typically lacks the ability to access their rights, then access to lawyers is crucial. If a client wants his or her rights enforced then a lawyer must help their client achieve this, even if others believe the client should not assert these rights.
Define Moderate Zeal
Moderate Zeal: The argument that lawyers should act with Zeal but not hyper-zeal, there should be a limit on how far a lawyer seeks to act for a client. Whilst lawyers are entitled to do all they can to protect their clients legal entitlements, they do not need to do all that they can to promote their clients interests.
Define Zealousness
Zealousness: Another synonym for moderate Zeal or types of Zeal/zealousness. Essentially the concept that lawyers should always aim to act in the best interest of clients but to what extent varies between hyper-zeal and moderate zeal.
Define Neutrality
The principle of neutrality requires lawyers to not prefer one client over another. Lawyers should give impartial advice that should not be tempered by emotion and should be cool and dispassionate. It’s also the belief that they should always put aside their own moral beliefs and views however again many do not agree with this i.e. being forced to represent a rapist.
