quiz 2 Flashcards
Critical legal studies
heavily influenced by marxist thought; views the law as a tool of opression by the ruling class to maintain power and perpetuate existing social inequality
Ronald Dowrkin
rejects positivism on every concievable level: law creates a norm and gives decision-makers guidance. If a judge violates these laws, they are considered unlawful
Determinism
your inclinations are “predetermined” and shaped by societal norms
Free-will is limited by social infrastructure
Constructive interpretation
aims to create the best possible outcome. Judges should implement their best understanding of justice when making decisions
Conventionalism
(precedes dworkin)
judges should apply the law objectively
Pragmatism
judges should be concerned with the consequences of their decisions
consequentialism
moral virtue of an action is judged by the consequences it produces
idealism
moral actors are guided by principles of right and wrong (deontological)
Gratian 1140 AD
customary law is a practice that wasn’t required but becomes required.
Law is divenly revealed
Divinely ordained law overrides constitutions; humanmade law contrary to God’s law is void
empiricism
the idea that an individual relies on sensory experience to formulate judgements/knowledge
Thomas Hobbes
people are evil, hence the need for a strong civil government
Legal positivism
morality should not limit the scope of law
the United Nations
founded in San Francisco, based in New York; not a sovereign entity (meaning it only has power to the extent it’s members give it power)
the UN Charter
refers to universal human rights in relation to their respective government
the Nuremberg trials
criticized as being “ad hoc” meaning the laws applied in the case existed for the purpose of that trial only
The law has to be preexisting no ex post facto laws
Knife example (The republic)
A man lends his knife to another. Before the lendee can return the knife, the lender goes mad. Raises moral questions about whether or not the knife should be returned. The legally correct choice would be to return it, the morally correct to withhold it (protect the lender from himself and others)
St. Augustine
Render unto caesar’s what is caesar’s and unto god what is god’s- advocated for the separation of the sacred from the secular
Thomas Aquinas
Christianity should influence the secular state (because it provides access to natural law)
Eternal law
Known only to God
Natural Law
discoverable through reason
Divine Law
revealed in scripture
Cicero
Roman lawyer; believed nature of law was derived from human nature; divine law is more important than human law
```
John Finnis
pioneered modern theory of natural law; separates it from religion. Instead, natural law is an unchanging, universal rule. Law is not prescriptive.
Discoverable by reason
US CONSTITUTION
is a modern source of natural law. Inherent rights exist for all people: life, liberty, and the pursuit of happiness.
Friederich Hayek
economic philosopher; developed the knowledge problem. We have to acknowledge the limits of our own knowledge and learn from others; any endeavor is the product of a cooperative effort
Premodern Stage of Knowledge
shifted from a belief in faith to a belief in progress
eschatalogical
notions that death and judgement will eventually come… progress is ordained by God
Aquinas
Premodern stage
tried to synthesize early Christian morality with ancient Greek philosophy
Machiavelli
the secular state needs to be preserved; it is better to be feared than loved
Luther
church is a human institution that has been corrupted, runs contrary to the word of God. As such, individuals should be responsible for their own salvation
Modernism Stage
asserts that individuals can gain knowledge of the world
Descartes
Ability to reason and by extension doubt is proof of existence.. Human mind is capable of knowledge bt not ultimate knowledge
Transcendentalism
moral knowledge must be the result of careful reasoning
The crisis stage
Nietzsche - asserts that people are driven by a quest for knowledge; however, fear of the unknown causes people to rely on faith to explain the unknown
Crisis of faith that ensued in the wake of darwin theory of evolution
Civic Republicanism
Nations have life cycles and need virtuous leaders
Individualism
championed by Toqueville and Jeremy Bentham. It places emphasis on the intrinsic worth of an individual. Favors the individual over state control
Law as a science
Law is something humans can discover and change; rules are discovered through empirical and rational observation
Sociology
How social institutions interact with one another
Realism
what sociology can tell you about humanity and how to apply it; importance of psychology
Legal Realists
realists believed that rules and principles were just post hoc justifications– meaning that judges’ legal explanations are made retroactively to justify a decision made based on faccts of case
HLA Hart
was a legal positivist who believed that there is no necessary connection between law and morality
Modern source of Natural Law
Constitution premised upon inherent human rights (the right to life liberty and the pursuit of happiness)
Neo-Kantians
believed that individuals have the inherent right to live their life as they choose without interference of the state
Will theory
views rights as tools people can exercise
interest theory
right to not have someone’s rights violated
Distributive Justice
fair distribution of benefits among a society
Corrective Justice
compensation for wrongs done to individuals
Retributive Justice
punishes wrongdoers
Comparative Justice
treating like cases alike
Rights
entitlements protected by law: Claims, privileges, powers, and immunities
Harm principle
the only instance in which a state can limit the action of an individual is when it is to prevent the harm of others
offense principle
the law can regulate offensive behavior, even if it isnt harmful
Christopher Columbus Langdel
Legal formalist, believed that law was a science. Excludes many social considerations and believes that judges should consider only the law and the facts.
