Philosophy of law and security Flashcards

Question

What are some conflicts between justice and legal certainty?

Answer 1

* Justice may demand that an unjust law be disregarded or replaced. * Legal certainty requires that the law, even if imperfect, is followed and enforceable.

Answer 2

Natural law and constructivism

Answer 3

Equality and fairness

Answer 4

Justice, in Radbruch's view, is concerned with the inherent fairness of the law and the equal (equitable) treatment of all individuals. The state's role is to ensure that laws are just, in line with universal moral principles, and protect individual rights. This is grounded in the natural law tradition, which holds that law should be based on objective moral truths discoverable through reason. Laws must align with universal principles/general rules. Absolute adherence to justice can make the legal system very rigid and not applicable to certain situations. It says that people should be treated equally and fairly under the law- but it doesn't define how this should be done, or who should be treated differently in order to ensure equality

Answer 5

Absolute: - Treats all individuals equally, without distinction. - Assumes that justice requires complete uniformity. - Implies a universal application of rights, resources and duties - Considered impractical and unfair Relative: - Essentially equity - Treats individuals fairly, relative to their differences or circumstances - Requires the recognition of these differences - Proportionate treatment - According to Radbruch, relative equality prevails, since it aligns with the practical realities of justice and fairness in society

Answer 6

Subjective justice: A virtue or quality in a human being. Cannot be fully defined on its own; it is more about a disposition or sentiment that aligns with the pursuit of objective justice (in the same way truthfulness relates to truth). More about having a justice-oriented mindset. Objective justice: The relations between people, rather than individual virtues. Unlike morality, which evaluates individuals, objective justice evaluates the relations between them. It is about upholding an ideal social order, not judging what is morally good. More about whether the social and legal order is just

Answer 7

- Equality refers to the treatment of individuals, specifically whether they are treated the same or differently. - Justice, on the other hand, is a broader ideal of fairness.

Answer 8

This type of justice deals with fairness in individual transactions. It ensures that agreements and exchanges between individuals are fair, equal, and honest. For example, in a contract, commutative justice ensures that each party gets what they agreed to, without any unfair advantage or harm. It's focused on equality in exchanges and rectifying wrongs when one party has been treated unfairly in a transaction.

Answer 9

This type of justice is concerned with the fair distribution of resources, benefits, and burdens within society. It looks at how goods (such as wealth, rights, or opportunities) are allocated among members of a society. Distributive justice aims to ensure that resources are distributed in a way that is just, often based on principles like need, merit, or equality. For example, it addresses how much wealth or social benefits should go to individuals in a society based on their needs or contributions.

Answer 10

Utilitarianism and Pragmatism (Pragmatism = focuses on what will lead to real, beneficial outcomes, rather than focusing on abstract concepts)

Answer 11

The common good and practical benefits

Answer 12

Expediency focuses on the practical consequences of laws and their ability to serve the public interest. The state's role is to enact laws that are most beneficial for the common good, promoting welfare, economic prosperity, or social harmony. This value aligns with utilitarianism, which judges actions and laws by their ability to maximize overall happiness and societal well-being. Focuses on an individualistic approach. This can be hard to correspond with the other values. Reflects the individualistic approach to maximise freedom for each individual. Completely depends on the political system you are in. Aims for a pragmatic solution, but may sacrifice equality/justice or legal certainty, depending on your world outlook. Gives content to the law (assuming that justice does not sufficiently do so, in terms of justice giving the equity but not the actual treatment of individuals). Describes WHO should be treated differently in order to ensure fairness.

Answer 13

These reflect who the content of the law aims to benefit or serve. They indicate the interests or goals that law seeks to promote within a society.

Answer 14

1. Individual Values: A liberal political outlook prioritises personal freedom and minimal state intervention, viewing the state as a tool to foster individual growth. Individuals are seen as the end goal of law and the state. 2. Collective Values: Social democratic perspectives focus on public order and societal well-being, emphasising collective values like morality and culture over individual freedom. 3. Work Values: Communist views prioritise work, culture, and collective goals, with law and morality subordinated to the needs of the collective, rather than the individual. According to Radbruch, the purpose of law is contested based on political outlooks, but legal certainty is always needed to ensure stability. All three values cannot be served equally.

Answer 15

These describe the ultimate goals or philosophical visions of the law, which guide the lawmaker's perspective on how society should be structured or function. (Typically after deciding who they want to benefit with the law).

Answer 16

1. Individualistic view: The individual is central, and everything else (law, state, culture) serves to promote and protect the individual’s personality and freedom. Work and collective values are subservient to individual ones. Ultimate goal is freedom. 2. Transindividualistic view: The collective is paramount, and individuals exist to serve and sustain the collective. The ultimate goal is collective welfare. 3. Transpersonal view: Human works, art, discoveries etc. are the highest value, and the individuals and collectives both serve this cultural ideal. Ultimate goal is to have culture as the highest purpose of human existence.

Answer 17

Positivism

Answer 18

Order and stability

Answer 19

Legal certainty emphasises the need for clear, predictable, and consistent application of law. The state must establish laws that are specific, unambiguous, and enforceable to ensure societal stability. This value is associated with legal positivism, which asserts that law is valid not because it reflects moral principles, but because it is enacted by a legitimate authority. Legal certainty is created by the state/sovereign, and it is created by using consistent, codified (positive!) law. Positive = laid down. The law should be clear and understandable to everyone. Publicly accessible, enforceable law. Positive law is important- but it can be very rigid and may sacrifice equality or expediency.

Answer 20

* Prevention of arbitrariness: Legal certainty prevents inconsistent or arbitrary law application, ensuring fairness and predictability. Without it, individuals could not know the law’s requirements, leading to confusion and injustice. * Enablement of stability and order: It provides a consistent framework, enabling citizens and institutions to plan actions and operations confidently. Legal certainty is essential for maintaining social order and trust in the legal system. * Protection of rights: It safeguards individual rights by defining clear rules and reducing the risk of arbitrary violations. Citizens can understand their rights and obligations, ensuring legal protection. Key aspects of legal certainty: * Clarity and precision: Laws should be clear, unambiguous, and accessible. * Predictability: Legal outcomes should be foreseeable. * Consistency: Laws should be applied uniformly. * Stability: Laws should not change frequently, allowing long-term planning.

Answer 21

- Critiques the application of positive law to the case, and says that the circumstances are too extraordinary - Said that the force of positive law disappeared, and they were in the state of nature - Believed the men made their own laws according to the circumstances- they were removed from civil society and the law - They killed the man for self-defence, necessity and preservation - He does not apply the law literally- he advocates for interpretation based on reason and moral principles - The deterrent effect of the law is irrelevant - He argues for acquittal since the men have already suffered enough - The purpose of law is for peaceful coexistence, but this was not possible

Answer 22

- Based on legal certainty - Believes that his personal opinions are irrelevant- he is bound by oath to uphold the word of the law - The defendants must be found guilty - The question is whether the men "wilfully" took Whetmore's life - because this will determine what rules to apply - Written law must be followed, even if it appears unjust

Answer 23

- Aligns with expediency - Questions what the best outcome is for the betterment of society - Popularist- sides with public opinion - For him, effective government involves applying procedures in a flexible, context-sensitive way, focusing on efficiency and common sense - The law must reflect human realities, meaning the judge must consider individual circumstances - Wants to acquit the men

Answer 24

Utilitarianism o Pleasure and Pain: People seek pleasure (utility) and avoid pain (cost). o Maximising Utility: The greatest moral principle is to maximise utility— utility is the overall balance of pleasure over pain. o Consequences Matter: The morality of an action is judged by its consequences in terms of utility maximisation. o Government and Law: Should aim to benefit the greatest number, a rational calculation that guides decisions, even with a small majority (e.g., Spelucean case). o Law and Economics: Law is a system of incentives to act efficiently, using economic calculations to maximise overall happiness. o Comes closest to Handy’s expediency: He agrees with the opinion polls of the general public, which were on the side of acquittal

Answer 25

o Human Rights: No respect for human rights, seen as "nonsense upon stilts." o Justice: Bentham's focus on calculation lacks consideration of fairness in distribution. o Individual Persons: Does not respect individuals as ends, but only as experiencers of pleasure and pain. o Justice vs. Calculation: Critics, like Radbruch, argue justice is about fair distribution, not calculation. o Measuring utility: It’s challenging to quantify pain, pleasure, or happiness, and reducing complex values like dignity or liberty to calculations can oversimplify or belittle them. o Non-consequentialist objections: Figures like Immanuel Kant argue that dignity has intrinsic value and cannot be compared or traded off against other metrics.

Answer 26

Liberalism o Defender of Liberty: Mill marries utilitarianism with liberalism, advocating for individual freedom. (Liberalism views the protection of liberty as the core purpose of the state, with security serving as a tool to achieve that end). He argues that the protection of liberty is the primary function of the state, while security is merely a tool to achieve that end. In this sense, freedom is not just a means to happiness—it is a fundamental good in itself. o On Liberty: Freedom is what makes humans distinctive. The state should protect and promote individual freedoms. o Harm Principle: The state can only limit individual freedom if someone else is harmed. If harm is self-inflicted, the state should not intervene. o Rights and Social Progress: Rights are important, but dependent on social progress and utility maximisation. Rights are not absolute to him (harm principle)- rights are dependent on social progress and must align with utility maximisation.

Answer 27

o Rights Depend on Progress: Rights are not absolute but dependent on their societal context. o Moral Balance: Infringements on individual rights can’t always be explained in utilitarian terms—there is more at stake. - Hard to measure harm - tyranny of the majority can suppress minorities

Answer 28

Act utilitarianism: Considers whether any proposed action will result in increasing the average welfare. Essentially, we are only concerned with the justice (the utility-maximising consequences of the act). Would torturing the detainee maximise overall welfare? If the torture saves many lives, the act might be justified because the consequences improve overall happiness. Rule utilitarianism: Asks what rule is best instituted to increase universal welfare. Assess the outcomes of a potential rule, and whether this is morally the best thing to do based on the greatest happiness for the greatest number. Considers the broader implications of a rule. If I write down this rule, will I achieve the consequences I want? Rule utilitarianism might conclude that authorising torture as a rule diminishes societal welfare, even if it seems justifiable in individual cases. - In either case, we must add up the pros and cons of the consequences of allowing or not allowing such an act or instituting a rule. We assess possible harms and benefits. - Utility, in utilitarianism, corresponds to benefit/overall welfare (greatest happiness for greatest number of people, even if it is just 51%) Tries to avoid pain. Utilitarianism looks at the consequence of an act or a rule. If the consequence gives you happiness, then it is good

Answer 29

- Hard to measure utility - Cannot accurately predict the consequences of an act or rule - Does not respect individual human rights (According to Bentham, that’s that, but according to Mill, this is bad, because freedom becomes conditional/only applicable to some, and for Mill, individuality, not utility, is the priority. However, Mill will sacrifice one person if it means maximising positive outcomes- harm principle)

Answer 30

- Rational calculations on the morality of decisions, based on possible outcomes. Consequentialist theory - Pleasure and pain are our sovereign masters - The highest principle of morality is to maximise utility (the overall balance of pleasure and pain) - Ticking bomb scenario: Often used to illustrate utilitarian reasoning. Act utilitarianism would justify torture to benefit the greatest number. Rule utilitarianism might not- by allowing torture, what next?

Answer 31

* Human Dignity and Autonomy: Kant asserts that freedom is self-legislation, following one's rational laws, not desires. Humans are rational beings, and their reason allows them to be free. This autonomy leads to self-legislation- only the use of our reason makes us free. Reason gives us the unconditional law of morality: the categorical imperative. * Categorical Imperative: 1. Act only on maxims you want to be universal law. Don’t do something if you don’t want it to be a norm (e.g. lying) 2. Treat others as ends, not merely as means to an end (prohibition of dehumanisation). * Motive over Consequence: Morality is about acting out of duty, not the outcomes of the action. The use of reason to determine laws that are universal and treat humans as ends is central. * Human Rights: Kant's ideas are foundational for modern human rights and dignity.

Answer 32

1. Act only on maxims you want to be universal law. Don’t do something if you don’t want it to be a norm (e.g. lying) 2. Treat others as ends, not merely as means to an end (prohibition of dehumanisation).

Answer 33

- Can be sacrificial (e.g. the terror case) - ignores consequences - does not indicate how to resolve conflicting duties - abstract

Answer 34

o Defined as the natural independence of every individual to act according to their will, limited only by the rights of others. o Rooted in reason and autonomy (self-legislation): acting according to self-imposed laws rather than external desires or influences. o Freedom enables individuals to spontaneously begin a new course of action without being determined by natural laws or external pressures (e.g., pain/pleasure).

Answer 35

o Acting morally = acting out of duty, following principles rationally legislated by oneself. o The categorical imperative requires actions to be based on universal laws (maxims) and prohibits treating oneself or others merely as a means to an end. o Morality stems from reason and the ability to act autonomously.

Answer 36

o Moral worth depends on motive, not consequences. o Actions are moral only when performed out of respect for the moral law, not self-interest or emotion. o Freedom allows individuals to choose to act out of duty, ensuring motives align with moral principles.

Answer 37

o Duty is the obligation to follow the moral law, regardless of personal desires or consequences. Can relate to Radbruch’s justice. o Freedom enables recognition of duty; duty ensures freedom is used morally. o Kantian ethics emphasises doing the right thing for the right reason, rather than acting based on outcomes.

Answer 38

o Bentham: People are guided by pain/pleasure. o Kant: People are guided by freedom and reason, acting autonomously.

Answer 39

o Something that is measurable, comparable, and exchangeable. o Associated with material goods or services, which serve human desires or purposes- things that are replaceable. - physical things can be considered things of "value"- and they exist to serve human needs or desires, and are often valued based on their utility or benefit. o A set of values can determine someone’s morality - Values relate to morality (indirectly) because they reflect what people might act on if they are not guided by higher moral principles. - If someone prioritises value-based reasoning, ("i will do this only if it benefits me), they act conditionally, which may not align with morality. - True morality cannot be measured or bargained with, since it arises from the categorical imperative, which requires us to act in ways that respect others as ends in themselves (connected to dignity).

Answer 40

o Intrinsic, absolute, and beyond any price or equivalence. A quality reserved for rational beings. Cannot be replaced. o Reserved for rational beings as ends in themselves. o Signifies the inherent worth of every individual as a moral agent.

Answer 41

4. Humanity as an End in Itself:  Rational beings possess dignity because of their autonomy and capacity for moral reasoning.  We must respect others’ dignity, never using them merely as tools for personal goals. 5. Beyond Price:  Dignity cannot be sacrificed or replaced for greater utility.  Moral principles respect the inherent worth of individuals, not treating them as interchangeable. 6. Universal Law:  Act only on maxims that could become universal laws, reflecting the equal dignity of all rational beings. Owning possessions has value, but it has no direct impact on your morality, because morality isn't about what you have, but about how you treat others and whether you act according to moral principles. If someone were to value objects or goods above the dignity of a person, that would show a failure of morality.

Answer 42

- Absolute rights: Draw an intransgressible boundary. Never permissible to infringe upon these rights for any reason, e.g. security. (e.g. torture, slavery, genocide) - Relative rights: These leave states some room for manoeuvre to act in the name of security/public safety/economic wellbeing, under certain conditions. The duty to protect/uphold liberties is inbuilt into the structure of relative rights. (e.g. freedom of association, right to private and family life, right to liberty).

Answer 43

Consequentialism is the ethical theory that judges actions based on their outcomes rather than inherent principles. It justifies infringing on rights or liberties if doing so leads to better overall consequences, such as maximising security or well-being. * Justifies infringements on rights/liberties based on societal consequences. * Security can be valued directly (as a goal) or indirectly (e.g., enhancing well-being or utility). * Policies are assessed via cost-benefit analysis to maximise the common good (e.g., justifying torture if it saves lives). * Liberty and security are situationally prioritised without a fixed hierarchy. * Example: Utilitarianism supports infringing rights if it increases overall happiness (e.g., arresting someone to prevent future crimes).

Answer 44

* Liberty is intrinsic, enabling autonomy and moral development. * Security is instrumental in protecting basic rights and liberties. * Rights can only be infringed to safeguard the liberties of others (e.g., Rawls prioritises equal basic liberties). * Absolute rights cannot be infringed, while relative rights may be under specific, justified circumstances to balance liberty and security.

Answer 45

Instrumentalism views the law as a tool or mechanism for achieving political, economic, or social goals. Instrumentalism sees law as a means to an end, rather than an end in itself. It prioritises practical outcomes, like safety or economic growth, over abstract ideas like fairness or liberty. It can be linked to Radbruch's expediency. For example: o National security focus: Law is used as a government tool to ensure public safety and order, often prioritising collective security over individual rights. o Criticism: This approach risks reducing law to a means of control, ignoring its role in safeguarding human rights.

Answer 46

Legal protection ensures that laws protect citizens’ fundamental rights and constrain government power. It reflects the principles of democracy and the rule of law. * Purpose: o To prevent the arbitrary exercise of power by the state. o Law serves as a safeguard to ensure equity, liberty, and legal certainty for citizens.

Answer 47

o Equity is sacrificed: No consistent or fair treatment of citizens. o Threats to liberty: Individual freedoms are undermined. o Lack of legal certainty: Citizens live in fear due to the unpredictability of state actions (no clarity or stability in the law). o Kantian perspective: Arbitrary state power violates the right to life and undermines trust between citizens and the state.

Answer 48

1. Legality: o The government is bound by its own laws and cannot act above them. o Laws must be clear, not retroactive, and accessible to all. 2. Separation of Powers: o Power is divided between the legislative, executive, and judiciary to avoid concentration of power. 3. Human Rights: o Fundamental rights of citizens are upheld, even in emergencies. 4. Judicial Protection: o Independent, impartial judges ensure laws are fairly applied. o Access to justice is equal, regardless of race, income, or status (symbolised by Lady Justice’s blindfold).

Answer 49

- Physical (literal violence to ensure order, e.g. police enforcing laws) - Symbolic (the state has a cultural projection, e.g. police uniforms as symbols of authority) - Governing (the social aspects of the state, e.g. the way the state wants to ensure welfare for all of its citizens/punishing crimes)

Answer 50

- The state has the “right” to use violence under the certain, specific conditions promulgated by the law, and the law only. - State violence can be traced back to a given legal competence- in order for a state or state official to use force, they must have a legal competence that is traceable. (even police count) - Competence is constituted power- ultimately traceable back to the highest law, typically the constitution - If state officials act beyond their competences, they will be held accountable (politically and legally, depending on the type of state official)

Answer 51

Legal theory and political theory- the state of exception

Answer 52

o Normal vs. Abnormal Conditions: Schmitt critiques the conventional legal narrative that presupposes normal conditions. He questions how normal conditions arise and what happens in abnormal situations (e.g., emergencies). o Emergencies: Existential threats to the state such as war, natural disasters, terrorism, pandemics. o Sovereign Power: The sovereign decides when normal rules can be suspended in exceptional times. This power is essential for the self-preservation of the state. o Sovereign Definition: The sovereign has the power to decide on the exception—acting outside normal legal frameworks in times of emergency. Sovereign power precedes the legal order and is a form of constituent power. o State as Political Entity: The state exists independently of the legal order and takes precedence during exceptional times to ensure its survival. o State of Exception: When emergencies arise, normal legal structures are suspended to allow the sovereign to act in the interest of state survival. o Role of the Executive: Schmitt argues that the sovereign, often the executive, has the responsibility to act in emergencies, even if this involves violating the rule of law temporarily.

Answer 53

o Authoritarianism: Schmitt's theory opens the door to authoritarian rule if unchecked. The sovereign could abuse the power to declare an emergency and suspend the law to suppress opposition. o Erosion of the Rule of Law: The ability of the sovereign to bypass legal frameworks during emergencies undermines the stability and predictability of the legal system. o Vagueness of Emergencies: The definition of emergencies can be subjective and manipulated to consolidate power. o Normalization of Exceptionalism: Frequent or indefinite states of exception could lead to a "permanent emergency" state, as seen during the Cold War. o Totalitarianism: The state’s ability to act outside the law could enable totalitarian control, bypassing democratic institutions and human rights protections. o Weakening of Democracy: Schmitt’s focus on sovereign power risks sidelining democratic governance and checks on executive power. o Lack of Accountability: The absence of oversight can lead to unaccountable decisions that erode democratic processes and the separation of powers.

Answer 54

o Abuses of Power: Schmitt's framework allows for emergency powers that can be misused, potentially leading to the suspension of democratic rights and the establishment of authoritarian regimes. o Difficulty in Restoring Normalcy: Once parts of the law are suspended, it becomes easier to extend this suspension, making it difficult to return to normal governance.

Answer 55

1. Legislator: Creates laws, keeps the executive under scrutiny. (parliament or congress). This branch is typically composed of elected representatives who represent the interests of the people. Their role prevents the executive from ruling by decree and ensures that laws reflect the will of the people. 2. Executive: Executes and enforces laws. (president, prime minister, police, government officials). The executive's powers are limited by the laws passed by the legislature and by judicial oversight. This prevents the executive from becoming a dictatorship and acting arbitrarily. 3. Judiciary: Applies the law in individual cases. Impartial adjudication aimed at upholding the law in private and public matters. The judiciary can check the power of both the legislature and the executive by declaring laws or executive actions unconstitutional or illegal, thus preventing abuses of power.

Answer 56

A concentration of power within the state threatens individual rights. To prevent power abuse (and arbitrary use of the law), separation of powers is vital. Enables a free (rather than tyrannical) government.

Answer 57

the law establishes standards of conduct and mechanisms to hold people accountable when standards are not met. Aims to regulate individual and office holders’ behaviour- is about what you should/should not do (norms!)

Answer 58

Law is tied to institutions that create, implement and enforce it, as well as adjudicate it.

Answer 59

Enforceable by the state, with force if necessary (according to the rules)

Answer 60

Law is a current system or order, so the activities and practices of the institutions hang together in a coherent way. It is a logical, specific system, not with random rules and practices.

Answer 61

There may be several interpretations, and people are entitled to argue their side, without fear of repercussion- this is especially important when the state/other powerful people are involved on one side.

Answer 62

Judge Keen- legal certainty

Answer 63

o Conflict: Balancing the interests of the collective (democracy) versus individual rights (rule of law) is a challenge. o Resolution: the judiciary ensures that the legislator and executive respect the laws. Judges remain impartial, independent (particularly from other powers)

Answer 64

The rule of law is a fundamental principle of governance that asserts that everyone is subject to the law, including the government itself- central to accountability. It ensures that laws are applied fairly, consistently, and transparently, preventing arbitrary use of power. Focuses on the relationship between the law and the exercise of (public) power.

Answer 65

1. Equality before the law: All individuals, regardless of their status or position, are subject to the same laws and legal processes. 2. Accountability: Governments and public officials must act within the boundaries of the law and can be held accountable for their actions. There is no impunity. 3. Legal certainty: Laws must be clear, accessible, and predictable, so individuals can understand their rights and obligations. 4. Contestability: When interpreting the law, there cannot be one true interpretation- the state cannot claim otherwise. One must always be allowed to argue. 5. Separation of powers: The judiciary must be independent from the legislative and executive branches to ensure fair application of the law. 6. Protection of fundamental rights: The rule of law is often tied to the protection of individual rights and freedoms, ensuring they cannot be overridden arbitrarily. 7. These all contribute to social and political trust in the State.

Answer 66

Generality: * Laws must be general in application, applying to all individuals rather than targeting specific people or groups. * This principle prevents discrimination or arbitrary use of power. Accessibility: * Laws must be publicly known and accessible to everyone. * Secret laws undermine the rule of law because people cannot comply with laws they do not know exist. Prospectivity: * Laws must apply to future actions, not retroactively. * Retroactive laws violate fairness because individuals cannot be held accountable for actions that were legal at the time they were committed. Clarity: * Laws must be clear, understandable, and precise. * Ambiguous or vague laws create confusion and undermine the ability of individuals to follow them. Consistency: * Laws must be consistent with each other and not contradictory. * Contradictory laws create situations where compliance with one law requires violating another, undermining legal certainty. Practicability: * Laws must not impose demands that are impossible to follow. * Unrealistic or overly burdensome laws undermine the rule of law because people cannot reasonably comply with them. Stability: * Laws must remain relatively stable over time. * Constantly changing laws create uncertainty and make it difficult for people to plan their actions. Congruence: * There must be congruence between the law as written and the law as enforced. * If laws are not applied as they are written, this undermines trust in the legal system.

Answer 67

* Literal Meaning: "State of law" or "law-governed state." * Emerged in continental Europe in the late 18th century to describe the modern state with its monopoly on force. * Key Features: o The state is both the subject and source of law. The state creates, implements, and is bound by the law. o Law is the medium of state activity: A Rechtsstaat operates legally and acts in a rechtlich (lawful) manner. o Focuses on the state’s role in ensuring constitutional safeguards, separation of powers, judicial protection, and fundamental rights. * Goes beyond the Rule of Law by incorporating deeper normative commitments such as human dignity and fundamental rights.

Answer 68

* Focuses on formal aspects of laws and legal institutions. * Emphasizes clarity, publicity, prospectivity, consistency, and stability. * Laws must be enforced according to their terms, without concern for whether they are just. * Key Features: o Formal principles (e.g., Fuller’s eight principles of legality) o Procedural approach, easier to apply across diverse legal systems. o Focuses on rule-following, not the moral content of laws. * Arguments for Thin Conception: 1. Practicality: Easier to apply universally across different societies and legal systems. 2. Flexibility: Can be used in various political and cultural contexts. 3. Less Controversial: Avoids disagreements over what is considered a "just" society.

Answer 69

* Goes beyond formal aspects to include substantive values like justice, democracy, human rights, and equality. * Emphasizes the importance of laws promoting a just society and respecting human dignity. * Key Features: o Integrates moral and political values (e.g., fairness, human rights). o Requires laws to not only be clear and enforceable but also just. * Arguments for Thick Conception: 1. Adequacy: Formal rules alone can allow oppressive regimes; laws must promote justice and protect rights. 2. Human Dignity: Incorporates respect for fundamental rights. (Kant) 3. Long-term Benefits: Fosters fairness, reduces inequality, and prevents abuses. 4. Normative Ideals: Addresses justice and rights, providing a broader ethical commitment.

Answer 70

* Focuses on identifying the specific institutional features or structures that should be present in a legal system to qualify as having the rule of law. * Concerned with the form of the rule of law: courts, laws, procedures. * Key Features: o Catalogues legal structures like clarity, predictability, and institutional arrangements. o Narrow view: focuses on institutions and formalities, rather than the purpose of these structures. o Potential downside: Can overlook whether the rule of law actually achieves its goals, such as limiting arbitrary power.

Answer 71

* Focuses on the purpose or goal of the rule of law. * Asks: What is the rule of law trying to achieve? (e.g., limiting arbitrary power, protecting individual rights). * Key Features: o Focuses on the outcome of legal systems, not just the structures. o Looks at the larger goal of ensuring fairness, justice, and the protection of rights. o Broader, more adaptable view: considers how to achieve the rule of law in different contexts.

Answer 72

* Thin vs. Thick: o Thin focuses on formal criteria, such as having clear, public, and stable laws, regardless of their content. o Thick incorporates moral values like justice, human rights, and equality, considering not just whether laws exist, but whether they are just. * Anatomical vs. Teleological: o Anatomical focuses on identifying the institutional structures (e.g., courts, clear laws) that should exist in a system. o Teleological focuses on the goal of the legal system, such as ensuring fairness and limiting arbitrary power. * Thin vs. Thick concerns the substance of the rule of law (formal vs. substantive values). * Anatomical vs. Teleological concerns the focus (specific institutional features vs. the purpose or goal of the rule of law). By combining a teleological approach with a thick conception, promoters of the rule of law can ensure that both the structure and the outcome are aligned with achieving justice, fairness, and the protection of individual rights.

Answer 73

* Teleological Approach is more productive for rule of law promoters because it encourages them to focus on what the rule of law is supposed to achieve (e.g., limiting arbitrary power and promoting justice), rather than merely cataloguing institutional features (which is the anatomical approach). Can relate to expediency * Why Teleology Helps: Focusing on the purpose of the rule of law leads to more flexible, adaptable strategies for fostering it in various social or political contexts. It prevents the imposition of rigid institutional structures that may not work effectively in all situations. This ensures that efforts to promote the rule of law can be tailored to specific needs and environments.

Answer 74

The relationship between legality and governance is grounded in the idea that legality focuses on the formal rules and laws that govern a society, often without considering whether those laws are morally right or wrong. Governance, on the other hand, is about ensuring the well-being of the population and thinking about the greater good—how laws and policies can address the needs of the people and guide the society effectively. In this context, governance is not solely concerned with the letter of the law but with achieving practical outcomes for the society's welfare.