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Law Morality and Justice Flashcards

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1
Q

Why study theory?

A

Theory provides a starting point for your analysis of an issue. (lens/perspective)

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2
Q

Basic assumptions when analyzing? (3)

A
  1. Legitimacy of law/institutions/actors
  2. Role of law/institutions/actors
  3. Impact law/institutions/actors
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3
Q

Different theories about the legitimacy of law: (2)

A
  1. Natural Law
  2. Legal Positivism
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4
Q

Different theories about legal process/impact of law: (2)

A
  1. Legal Realism
  2. Critical Legal Studies (feminism, critical race, disability)
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5
Q

What are the major elements of natural law theory? (3)

A
  1. There should be a natural link between law and morality
  2. These laws/morals are universal and immutable
  3. Natural law is a philosophical justification to go against the law
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6
Q

Who developed Natural Law Theory?

A

Christian theologians

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7
Q

Critiques of Natural Law? (4)

A
  1. Too subjective
  2. Not enough attention to how society works
  3. Relative nature of morality in modern western society
  4. Should law reflect changing moral values?
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8
Q

What are the major elements of Legal Positivism? (5)

A
  1. Law as a system of commands or rules
  2. Procedure/authority as a guide to legitimacy
  3. Divorce law from morality or justice
  4. Focus on what law “is” not what “ought” to be allowed/prohibited
  5. Rooted in social contract theory and parliamentary supremacy
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9
Q

How does legal positivism relate to Hobbes?

A

Hobbes Leviathan = Parliamentary Supremacy

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10
Q

Critiques of Legal Positivism?

A
  1. Ignores the concept of justice
  2. Justifies wicked legal systems
  3. Doesn’t account for impact of politics, economics and culture on content of laws
  4. Ignores human agency
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11
Q

What are the major elements of Legal Liberalism? (4)

A
  1. Assumes that individuals are rational, self-interested, autonomous, and have inherent dignity.
  2. Individuals as primary social actors
  3. Law should protect liberty + equality
  4. Law should act neutrally
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12
Q

Requirements of defense of necessity? (3)

A
  1. There has to be an immediate risk of death
  2. There is nothing else you could have done to save yourself unless you break the law
  3. Harm caused is not disproportionate to harm avoided
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13
Q

Critiques of Legal Liberalism? (4)

A
  1. “Euro-centric” conception of individual/society
  2. Assumptions are flawed
  3. Internal Tensions
  4. Law is not neutral
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14
Q

How are the assumptions flawed in Legal Liberalism? (2)

A

Do you always make decisions under rational reasoning? No there are emotional components. 1. Humans are not always rational. 2. Best interests are not always for ourselves but for others/the community as well.

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15
Q

What are the major elements of Legal Realism? (4)

A
  1. Judges don’t just “find the law”, they “formulate it”
  2. Judges start from personal conception of justice not from precedent or rules
  3. Each decision involves choice
  4. “Law in Action”
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16
Q

Who is Holmes?

A

Holmes: Supreme court in the US.

17
Q

What factors affect legal actors when making choices?

A

You need to look at the background of the judges. Mostly middle-class white men. Does this impact how they make decision/choices.

18
Q

What is Law in Action?

A

Law on the ground. Law and how it gets applied. Why does a law get applied in some cases and not in others? Pattern of arrests. How law is actually applied in real life and not how it is on paper/written.

19
Q

Legal Realism Critiques?

A
  1. Natural Law: Legal realists would not always look at just decision-making.
  2. Legal Positivists: Judges are not always neutral to legal realists. (supreme court of Canada said judges can’t be neutral but have to be objective.) Positivists would say you are ignoring that there are written rules that have been passed on.
  3. Critical legal studies: It was too narrowly focused on the individual factors. Critical looks at the bigger factors mostly.
20
Q

Critical Legal Studies?

A

-Roots in Yale Law School (1960’s)
-Builds on Legal Realist approach
-Rejects view of law as neutral
-Adopts systemic perspective
-Law viewed as another form of politics
-Critical of political role of judges (unelected)
-Critical of judicial method (rationalization)

21
Q

Feminist Legal Theory

A
  1. Rejects neutrality/objectivity of law
  2. Male-dominated jurisprudence
  3. Legal structures create and reinforce patriarchy
22
Q

What are the major elements of Critical Race Theory? (5)

A
  1. Rejects neutrality of law
  2. Focus on differential impact of law on racial minorities
  3. Racism is more than individual attitude and practice
  4. Legal structures create and reinforce racism
  5. Critical analysis of legal process/structure
23
Q

Butler?

A

Butler says the legal system reinforces white supremacy. It is morally justified for AA to nullify the jury against non-violent offenses.

24
Q

What are the major elements Critical Aboriginal/Indigenous Legal Theory? (4)

A
  1. Negative impact of laws on Indigenous peoples
  2. History of assimilation/abuse of trust
  3. Use of crim justice to incarcerate indigenous at a higher rate
  4. Oral tradition from indigenous incompatible with written laws (see John Burrows for example)
25
Q

Internal debates (Liberal vs Radical approaches)

A

Butler argued for jury nullification by black juror – he talk about the tension about critical race studies on whether to adopt liberal approach (individual examples) or radical approach (overall racism experience).

26
Q

Failure to deal with cross-cutting sources of discrimination and inequality?

A

Intersectional identity multiple identities that might be affected by legal problems (race, religion, gender…)

27
Q

Failure to account for on the ground realities?

A

More on experience of people living on reserves not by individuals living in cities. Indigenous living in cities sometimes are the most marginalized but the indigenous legal theory doesn’t focus on them.

Law (2 decks)

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