Legal Philosophy Flashcards
Moral Philosophy
- Focuses on concepts of good/evil, right/wrong, justice/injustice
- Thinkers have pondered relationship between a community’s values and it’s laws
Social Contract
• Without rules, people are in a state of nature – free to do as we wish, but subject to violence, exploitation, unpredictability, and disorder
• By entering a social contract, people agree to give up some freedom in exchange for some amount of security against these various kinds of harm
o Also agree to abide by laws around us
Natural Law
- “An unjust law is no law at all.”
- A set of idea, enduring, flexible rules of conduct that originate from a divine source
- Does not change over space or time
- Law and physical nature are inseparable
- Fundamental principles that are always morally correct (i.e. murder is wrong)
- Just because it is written does not mean it is just
- Humans have ability to use reason, and have a “moral imperative” to challenge an unjust law that does not conform with principles of natural law (civil disobedience, i.e. Gandhi, MLK Jr., Thurgood Marshall)
Legal Positivism
- “Law is always”.
- Law should be followed simply because it is law (if an act is permitted by law, it is just)
- Emphasis on social order
- Decided by formal institutions, governments and officials, systematically written down, enforced by government/government agents
- While laws often reflect moral values, values are not necessarily natural or universal -> countries have different laws about same issues (i.e. drugs)
- Derived from human political authority and changes according to will of law makers
- Separates concept or morality from justice (secularism) in reaction to dominance of church
Legal Realism
- “The law is essentially whatever the lawmakers say it is.”
- Sub-category of legal positivism – values are variable, not universal (depends on perspective of individual)
- Legal realists argue that in reality, the law is flexible & influenced by personal experiences and community values
- Lawmakers create the law by applying it (i.e. judges individually interpret the law and come to a decision, which could be different from another judge)
Critical Legal Theory
- “Masters tools will never dismantle the masters house.”
- Since laws reflect individual values, they can contain the biases of powerful social groups
- Argued that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status -> law can maintain social inequality by advancing the interests of powerful legal groups over the interests of marginalized groups
- Focuses on bias and discrimination in the law with respect to gender, race, ethnicity, religion, economic class, sexuality, and disability
DIALECTIC: Socrates & Plato (427 - 347 BCE)
- Belief in natural law – dialectic (Socratic method of finding the truth)
- Reasoning through questioning
- Democracy was flawed -> mobocracy
- True justice lies in obeying the law based on eternal principles that govern the universe
- Manmade laws should be consistent w/ natural law
- Plato was student of Socrates
RATIONALISM: Aristotle (384 – 322 BCE)
• Student of Plato
• Only way to create good was through education
• Use of reason to analyze the natural observation
• 3 classes of good: born good, good through edu. /law, fueled by passions
• Law = moral purpose (use fear + purpose to make people follow law)
• Forces to follow reasoning
o Inductive -> educated guess
o Deductive -> P1 men are mortal, P2 Socrates is man, P1+P2 Socrates is mortal
GOLDEN MEAN: Thomas Aquinas (1225 – 1274 BCE)
- Adapts Aristotle’s theory
- 4 types of law: natural, divine, positive, human positive
- Humans should live in a way that will unite them w/ God after death
- Law is bound by conscience
- Laws that contradict divine laws are unjust (don’t matter)
- Life is about finding balance
- Golden mean – no excess or defect
ABSOLUTISM: Thomas Hobbes
- Sovereign is more important than individuals – King is highest power
- Positive law theorist
- Intellectual abilities brought him closer to power
- State of nature – humans led lives that were “solitary, poor, brutish, and short”
John Locke (1634 – 1704)
• Based on natural law, which leads to positive law
• Based on “Two treatises of Government” – citizens had the power to overturn government
• Natural rights: equality, life, liberty, property, pursuit of happiness
• Government formed by people
• Inspired:
o American Revolution (1776) – “No taxation without representation”
o French Revolution (1789) – “Liberté, Fraternite, Equalité”
UTILITARIANISM: John Austin & Jeremy Bentham
- Useless to judge by a moral or religious code, or subjective measures
- He believed people tried to achieve the maximum pleasure/happiness in their lives
- Hedonistic calculus – how to calculate/measure a person’s pleasure
- He believed positive law was not about right or wrong, but about written laws
- Austin: government had to set up law & enforce it, must be separated from personal morality
- Bentham: started majority rules, secular from church (*doesn’t protect minority rights)
MARXISM: Karl Marx & Legal Realism
• Marxism: An economic + political theory that states that the law is an instrument of oppression and control the ruling classes use against working classes
• Communism: violence between BOURGEOISIE (ruling class) and PROLETARIATS (working class), removing economic hierarchy
o Goal = no money, Bourgeoisie + Proletariats equal, no one owns anything
o Provide up to your ability, take what you need
MARXISM: Feminist Jurisprudence (WW1 +1960s)
• Women’s franchise act (right to vote) not passed in 1918
• No right to divorce until 1925
• Not considered persons until 1929
o Persons case: Edwards v. Attorney General
• Theory that law is an instrument of oppression by men against women (esp. when women couldn’t vote or sit in parliament)
Sources of Law: Primary
- Religious beliefs/values
- Historical influences (Hammurabi, Moses, Greeks, Romans, British Common Law)
- Customs & conventions
- Social & political philosophy (what law should aspire to be -> utopia)
