Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Philosophy of Law > MIDTERM 10/11 > Flashcards

MIDTERM 10/11 Flashcards

1
Q

What did Cicero think about Natural Law?

A

That it is unchanging over time and does not differ in different societies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is Natural Law?

A

Law of Reason, always valid no matter what humans say

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is Human (positive) Law?

A

Man made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

According to Aquinas is a just law is consistent with the requirements of natural law?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What will make a law unjust according to Aquinas?

A

If a law giver hasn’t exceeded authority and laws are imposed on citizens fairly… failure will make a law unjust.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

According to Aquinas what is a citizens obligation to an unjust law?

A

There is no obligation to obey that law. AN UNJUST LAW IS NOT A LAW.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Does MLK believe that “an unjust law is no law at all”?

A

yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What does MLK say about just and unjust laws?

A

that any law that uplifts human personality is JUST and any law that degrades human personality is UNJUST.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the Natural law theory?

A

Natural law theorists believe that human laws are defined by morality, and not by an authority figure. recognizes law and morality as deeply connected. humans are guided by our human nature

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Does Austin believe that an unjust law is not a law?

A

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

According to Austin what is every law or rule?

A

a command

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

According to Austin what makes a command, a command?

A

if one is able and willing to harm if wish is complied, then it is a command.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Austin: Positive law v. positive morality

A

everyone should be able to recognize positive law and positive morality can be false… like slavery.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Austin: what is a positivist?

A

law is a system of power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Austin: Authority= what

A

power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Austin: Anything you can get away with, really isn’t wrong

A

yes thats what he believes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Riggs v. Palmer: what would common law say in this case?

A

That one should not be able to profit off own crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Natural Law Theory

A

positive law that conflicts with natural law is invalid

19
Q

What is positivism according to Austin

A

that law is a command from political superiours

20
Q

Legal realism

A

whatever is actually enforced

21
Q

Holmes: what does the bad person care about?

A

the bad person doesn’t care about morality… they only care about what will happen to them

22
Q

what is Holmes objection to Austin?

A

that a command that is not enforced is not a law

23
Q

Holmes: are unwritten rules that are enforced a law?

A

Yes

24
Q

Holmes: what is the first fallacy?

A

that they confuse law with morality. law is filled with moral sounding language (promise, good, duty)

25
Q

Holmes: what is the second fallacy?

A

mistakenly believe judicial interpretation is just logical detection against formalism

26
Q

Holmes: what should judges study?

A

History and economics

27
Q

was Hart a positivist?

A

yes

28
Q

what is utilitarianism?

A

right action=most good; maximized happiness

29
Q

does natural law say an unjust law is valid?

A

no

30
Q

does Austins positivism (command theory) say that an unjust law is valid?

A

yes

31
Q

does legal realism say that an unjust law is valid?

A

yes

32
Q

does harts positivism say that an unjust law is valid?

A

no

33
Q

does any of the four different theorist say to obey a serious moral law?

A

no. none of them deny that morality matters

34
Q

what does natural law think about authority?

A

authority does not equal power

35
Q

what does Austins positivism (command theory) think about authority?

A

authority does equal power

36
Q

what does legal realism think about authority?

A

authority does euqal power

37
Q

what does harts positivism think about authority?

A

authority does not equal power

38
Q

Hart: what are primary rules?

A

rules for behavior… they’re enforced by social pressure

39
Q

Hart: what are the defects of a society that only runs on primary rules?

A

uncertainty, static, and inefficient enforccement

40
Q

Hart: what are secondary rules?

A

rules for making rules (rules about rules)

41
Q

Hart: how would secondary rules help with the defects of the primary rules?

A

recognition (something that people can agree with and write down)
change
adjudication

42
Q

what is law to Hart?

A

law is a union of primary and secondary rules

43
Q

Hart: why is rule of recognition important?

A

it determines validity. once you have a way of deciding what rules are official you turn it from custom to law.

44
Q

What is positivism in law?

A

It implies that legal rules are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such

Philosophy of Law (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions