Midterm Summer Session Flashcards
Law has __ and __
Demands and Sancitions
Sancitions make you
Do something you normally wouldn’t do
__ Assumes role of seeking justice
The State
Police represent the law, they are
Not the law
Respondent is the person
Keeping defendant in jail
District Courts divided by
N, E, W, S jurisdictions
Number of federal circuit courts
94
Number of federal court of appeals
13
Hierarch of federal courts (bottom to top)
94 circuit/trial courts, 13 intermediary appellate courts, 1 SCOTUS (ultimate court of appeals)
Cannot break one action into ___
Separate cases (i.e., hitting cow)
NY courts of first instance/trial courts
62 (counties)
NY appellate courts
4 (N E W S)
NY Court of Appeals acts similar to
Supreme Court
Origins of Law
Greek - Plato Masadonian Law Book of Genesis Positive law of state/man Biblical Law Darwin Evolution
Primitive Law
No specific rules or administrative organization
Positive law of man - to cohabitate,
Rules had to be followed
Archaic Law
Early days of Rome
Codes of Substance and procedure
Penal laws
3BC to fall of Rome
Common English Law
12th C to present
Criminal procedure law (arrest, Miranda and bail)
Mature law
Law we follow now
3 types of law
Primitive, Archaic and Mature
Positive Law = laws created to
Govern men
John Austin
English jurist b 1790
John Austin definition of law
Definitie rules of human conduct with appropriate sanctions for their enforcement, both of these being prescribed by duly constituted human authority
Book definition of law
Laws exists only to the extent that living humans acknowledge/agree it exists and are willing to give meaning to it (obey it)
Length of time law applies after your death;
19 years
Prohibition
18th amendment in
21st amendment out
Suffragette (women’s right to vote)
19th amendment
Approved by majority of 1
Bigamy laws
Example of laws existing as long as we want them enforced
Law of is:
Law of nature
Law of ought
Law of man / prescriptive / human laws
Laws as form
I.e. Murder statute - punishment acts as deterrent
Authority = legitimacy =
Power
3 A’s of philosophy
Aristotle
Aquinas
Austin
Aristotle
B 384 BC in Stagina Kingdom of Macedonia
Believed state has duty to make good people
Created Western thought & institutions
St Thomas Aquinas
B 1226
From Lombard king and linked to European noble houses
Nephew of emperor
John Austin
B 1790 England Father of analystical positivism Humans are autonomous, rational and free choices for own well being Believed logical to push for evil Reason is benchmark
Fugitive slave law case
Jones v. VanZandt
U.S. 1847
Article 4, sec 2 US Constitution fleeing slaves had to be returned to owners
SCOTUS had to blindly follow law
Fugitive slave law of 1793
Provided penalty of $500 to anyone how aided slave.
Plessy v Ferguson
Separate but equal
1896
Brown vs Board of Ed
Separate can never be equal with children
1954
SCOTUS is a super legislature that
Answers to nobody
Plato and Aristotle reach assertion that
…ability to derive pleasure from virutuos acts and ability to abstain from bad is a the mark of a good person
Good / bad person =
Pleasure / pain principal
Pleasure / pain principal used to
Devine law of nature
Utilitarian school of thinkers
Who determines greatest amount of pleasure vs. amount of pain
Aristotle question of
Legal and moral responsibility
- what does it mean to act freely and choose legal, moral activity over another?
NY State does not have a good __
Samaritan statute
NY State (state in general) does not enforce
Natural law
Must offer assistance if in a
Superior position to do so
Positive law of State of NY
Must reasonably assist police officer who asks for asssitance
3 sides to the law
Prosecutor
Defense
The Truth
Greco - Persian wars
499 479 BC
Elopenesian War
War between Athens and Sparta
431 - 404 BC
Socrates life
B 469 - executed 399 BC
Plato life
B. 428 - 348 BC
Aristotle life
B 384 - 322 BC Studied at Plato Academy 387BC for 20 years Thought he would become head of academy Falls in love with king's daughter Tutor's Alexander the Great, king's son
Plato writings
The Republic
The Statesman
The Laws
The Repbulic
Plato’s best
Discussesed perfect city state
Would not need any laws b/c lead by ideal statesman
Laws would hinder a statesman
The Statesman
Ideal state w/out laws
There has never been an ideal state or statesman
The Laws
Longest of books
- State should be physically situated in out of way locations - free from outside influence.
- State should have 5040 citizens in % categories with equal numbers and wealth
- Excess wealth goes to state
- Labor and menial work to slaves and artizens
- Birth control encouraged as was adoption
- Goal was to bring back glory of Greek city state
Aristotle belief re: being in a state
Must be in state to be a good person
Citizens must share in administration of justice
Must participate in their govt (jury duty)
Jury established
5th century BC so that not all citizens had to service, now made up of 500 people (Socrates case) men 30 and over
Highest part of mental state is
Contemplation
Task of education was
To becom virtuos, good nature
Aristotle’s book 5 on Ethics
Equitable, Suitable and Reasonable
Father of Equity
Aristotle
Aristotle broke down justice into
Distributive and Corrective Justice (modern is corrective)
Don’t lower bar of excellence but level playing field
Plato and Aristotle believed in meritocracy and were against communism
Plato books
Appolgoy - charges against Socrates were unjust
Paiedo - about Socrates death
Sedition
To question authority - cause of Socrates charges
No such thing as a coherent
Natural law tradition
Natural law theorisists have
Nothing to do with one another other than the opposition to positivism
Early natural law related to
Freedoms and responsibility
Modern version of natural law
Relates to morality
Thomas Acquina questioned
How can humans be free and part of natural law?
Cynics
- employed teaching of Socrates
- ethical values
- abandon social snobbery, difference between social classes
- divides world into wise and ignorant
- mark of the wise was self sufficiency
- ideal state live in state of nature like herds of animals, no bathing
Stoics
- founder is Zeno
- most important school in Greek world
- living in accordance with nature
- nature is ordered like art
- each man has their assigned role
- each man to perform work well
- to do work well must resign self to purpose of divine providence that animates world
- man has reason and therefore relatiaonship to divine
- soul of man joined with souls that animates world
- man who lives properly becomes part of moral world order
- life of man is moral and social
- perfect equality among men with no natural slaves
- only folly and vice could make slave out of a man
- no need for state
Skeptics
214-129 BC
- lead by Carnedes
- most brilliant of Greek thinkers
- most knowledge was uncertain
- worldview could not be taken seriously
- gave utopian ideals
- law of reason was not just
- must bring ideal principals to man
- ideal which man could use to criticize law and government
Cicero books (Roman)
The Republic
The Laws
Cicero believed
Best life for man is to serve state and govern man
- translated Greek philosophy to Latin
- statesman can create change
Cicero’s state
The coming together of number of man united by law and rights and desire to participate in mutual desires/benefits
Cicero mixed state of Plato and Aristotle
King = president
Nobility = senators
Common people = house of representative
Cicero on law
- Law is the mind and reason of the intelligent man.
- Standard by which justice or injustice is measured.
- Not everything found in laws and customs of nations is just
- all nations hate the chief vice and love the chief virtues
- all men fear and have beliefs
- state of lax law is not a state and anything else is now a law
Unjust law is not
A law
Cicero law of nature
Is discovered by independent discovery, law of man is found by precedent and tradition
