Brainscape's Knowledge GenomeTM

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


See full index

Legal Philosophy > Philosophers > Flashcards

Philosophers Flashcards

1
Q

Austin

A

Laws properly so called = General commands.

Laws are commands willingly expressed by wish by a sovereign with a sanction if not carried out.

A sovereign is a human superior, obeyed by a majority whom himself does not obey to anyone else.

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

Austin - Criticism

A

What about international law? And customary law?

Continuity problem, what if the sovereign dies?

Does not account for power-conferring rules.

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

Hart - Ideas of Law

A

Law as a sociological and scientific fact. Must be separated from morals (separation thesis) because morals should not be enforced.

The state can be paternalistic for the protection of its subjects.

Rule of recognition - To find the sources of law (legislation, treaties, case law, custom…) - What judges treat as law is law.

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

Hart - Punishment

A

Criticism of utilitarianism and retributivism:

  • Offenders do not take into account the rational calculus when committing the act (utilitarianism).
  • Offenders do not the the other option

Punishment - Involves pain or hardship, against an offender, for an offence against legal rules, intentionally administrated by an authority from the same legal system.

We should not punish those who have no will because society would not be happy.

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

Hart - Interpretation

A

Judges have discretion but only in interpreting the rule (they are still confined by the rule)

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

Kelsen - General

A

Pure theory of law - Law as an objective science, purely legal (excludes sociology and morals). Pure because objective.

Law is law because of law. Legal norms are sent back to the first constitution and then to the grundnorm.

Primary rules (prohibitions and duties) and secondary rules (power-conferring).

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

Raz

A

Committed statement - Follow law because it is law

Detached statement - Others should follow law but it is not applicable to me

Exclusionary reasons - People assume the legislator has considered all reasons behind that law and therefore it’s an ‘is’, not ‘ought’

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

Aquinas

A

Lex aeternae (eternal law) - Law that is only known to God, divine reason

Lex naturalis - Discoverable by reason, which was given to us be good so is linked to eternal law.

Lex divina - God’s positive law for mankind.

Lex human - Supported by reason, enacted for the common good and daily life transactions

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

Devlin

A

Shared morality - Moralistic legislation is allowed because society has a right to punish behavior considered wrong by it.

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

Finnis

A

Human flourishing - Life, knowledge, play, aesthetic, sociability, practical reasonableness and religion

Practical reasonableness :

  • Pursuit of goods
  • A coherent life plan
  • No arbitrary preference amongst values
  • No arbitrary preference amongst persons
  • Detachment and commitment
  • Relevance of consequences
  • Respect for every basic human value
  • Common good
  • One’s conscience

Unjust laws - Law is law because of its function, which is to achieve human flourishing. An unjust law will go against human flourishing and therefore not be a law.

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

Fuller

A

Inner morality of law - Generality, promulgation, non-retroactivity, clarity, non-contradiction, enforcement, possibility for compliance and constancy.

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

Mill

A

What is a right? When there is a form of duty for society to protect one’s interests. Because society protects rights.

Harm principle - One should not be restricted in his actions as long as it does not harm someone else. There’s an obligation for society to protect rights for the greater common good.

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

Bentham

A

Retribution - One should not be punished if he did not will to commit the offence because punishing him will have no deterrence.

Assessment of pleasure/pain - Intensity, duration, certainty and remoteness

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

MacIntyre

A

Conceptions of justice:

  • Human purpose is to live the good life
  • Everybody deserves the good life
  • Must be achieved efficiently (who is best in what?)
  • The good life is achieved through virtue
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Nozick

A

Entitlement - Because I earned it (through acquisition, transfer or rectification)

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

Rawls

A

Justice based on need for basic survival, everybody should have equal opportunities (and goods).

Punishment:

  • Institutional punishment (in general) and specific punishment (justified by telishment)
  • Telishment is punishment for its social value, because it will have good consequences
  • Pure procedural justice, safeguards to avoid dysfunctions of justice

Veil of ignorance:

  1. Egalitarianism
  2. Unless it advantages the least advantaged
  3. Must respect basic rights
  4. Must offer fair and equal opportunities
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Dworkin

A

Equality and respect are fundamental rights. Respect for those rights will lead to an obligation for society to base its concern on equal welfare for all.

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

Schauer

A

Judicial discretion is based on ratio decided, not obiter dicta

19
Q

Ehrlich

A

Judicial norms are instructions addressed to the judiciary, administrative norms and instructions addressed to the administration.

Law is a flux and can not be captured. It is also moving.

20
Q

Llewellyn

A

Ideas of American realism:

  • Law as a flux
  • Law as a mean to a social end, not as an end itself, it has no value on its own
  • Society as a flux
  • Separation of is and ought to ensure objectivity
  • The law is not describing reality
  • Descriptive rules should not be means of decision making
  • There should be a narrowing of legal classification to make judgements more predictable and rules better.
  • Evaluation of all legal arrangements
  • Sustained and organized attack on society’s legal problems
21
Q

Olivecrona

A

Psychological interpretation of the law.

Law as independent imperatives - A prescribed action with an imperative symbol. Law does not create legal relations but shapes people’s behaviour.

22
Q

Pound

A

Law as ‘social engineering’:

  • Effects of legal arrangements on society
  • Sociological surveying to prepare future legislation
  • Efficacy of legal arrangement should be measured
  • Do not only look at the present and the future but also check sociological history
  • Do not sacrifice fair solutions in the name of legal certainty
  • Procedural efficiency of the law
23
Q

Ross

A

Game of chess:

  • Law is complex and can not be participated in if one does not know the rules
  • Law is only what can be felt and verified through sensory perception
24
Q

Von Savigny

A

Volksrecht is the law of the People. Volksgeist is the Spirit of the People (common consciousness).

Against codification:

  • Because law lies within the Volksgeist
  • Can be necessary when there is a difference between thinking something is law and what actually is law. Can help for clarification
  • There can be no importation of law because law lies within society and that each society is different
25
Q

Weber

A

Acceptance of domination because of charisma, tradition and law

Ideas of rationality:

  • Substantive and formal think
  • Irrational and rational think
26
Q

Blackstone

A

Prevention of crime occurs through a cost/benefit analysis whereby the cost of a crime are a little higher (but no much higher) than the benefit of that crime.

27
Q

Utilitarianism

A

Act-utilitarianism - An action is morally right when it produces the greater good for the greater number of people.

Rule-utilitarianism - An action is morally right if the rules that allowed that action are morally right (in order to achieve the greatest good)

28
Q

Feminism

A

Cultural feminism - From early childhood, girls and boys are conditioned to adopt different behavior

Radical feminism - Suppression and silencing has been the universal experience of women

29
Q

Conception of the common law

A
  1. Acceptance that the Appellate court has the power to change what was previously decided
  2. Common concepts in substantive rules and principles
  3. Each jurisdiction has a corpus of written sources taken as a basis for legal reasoning
  4. Superior courts should adapt the common law in the light of changing social conditions
  5. Individualistic conception of man’s place in society (via relations between the individual and the state)
30
Q

Functions of legal reasoning

A

Justification - Justify that decision

Persuasion - Show that that decision is the best one

Prediction - Show that that decision has the best consequences

31
Q

Hart - Minimum content of natural law

A

The minimum content of natural law (theft, fraud and bodily harm) is established Bia the ‘five truths’ of human nature: Human vulnerability, limited altruism, limited resources, approximate equality and limited understanding of strength and will.

32
Q

Hart - Principles of justice

A

Principles of justice:

  • Treat all persons alike with regards to human voluntary action.
  • Forbid the use of one human being for the benefit of the others unless it is a consequence of his voluntary action.
33
Q

Kelsen - Gaps

A

Gaps - No gaps, discretion of judges is made to cover the gaps.

A technical gap is a gap between positive and desired law.

34
Q

Kelsen - Interpretation

A

Judicial interpretation - Norms give a framework for judges’ decisions.

35
Q

Fuller - Interpretation

A

Judicial discretion - Back to ‘authentic’ interpretation.

36
Q

Mill - Elements of justice

A

Elements of justice - Unjust deprivation of goods lawfully acquired, unjust law is not a law, get what you deserve (just desert), keep your promises, impartiality and equality.

37
Q

MacIntyre - Criticism of Rawls and Nozick

A

Criticism of Rawls and Nozick:

  • Misses the principle of desert, you get good because you did good
  • There is no common morality for all, society is too multicultural
38
Q

Nozick - Criticism of utilitarianism

A

Utilitarianism fails to account for the distinctness of people and that people choose justice to regulate their social interactions.

39
Q

Rawls -Interpretation

A

Reflective equilibrium is to judge over a case and review our moral and ethical beliefs to come to a decision.

40
Q

Dworkin - Interpretation

A

Judicial originality:

  • Judicial originality should follow principles (rights), not policies (collective goal). A principle is a standard which has to be obeyed because of the requirement for justice and fairness and is obtained from morality, social practice, legislation and case law.
  • Judicial originality should not be because it is undemocratic and retroactive.
41
Q

Dworkin - Legal positivism

A

Donut theory:

  • The dough is the law and the hole is everything else (which can be used for interpretation)
  • Wrong! Because judges are also bound by principles
  • If judges are bound by principles, than they are also bound by morals, there is not strict separation.
42
Q

Llewellyn - Interpretation

A

Judges’ discretion:

  • Judges are free but they must justify their decision with reference to law
  • By rationalization (trained lawyers’ arguments)
  • By discrimination amongst legal rules
  • By groups the facts of the case into new categories and search for correlations with other cases
43
Q

Utilitarianism - Criticism

A

Criticism:

  • Treats people as means to an end
  • Happiness is achieved by satisfying desires. But those can conflict between people
  • What is right does not necessarily equate with what is good
  • Concerned with maximum welfare, not equal distribution of welfare
  • Consequences of an act can be difficult to calculate
  • Happiness on what scale?

Legal Philosophy (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions