Retributive Justice Flashcards
Retributive justice
How society determines punishment
Society’s system of law goes about determining guilt or innocence.
Two types of retributive justice: Procedural and substantive retributive justice.
John locke
Hippie♡
Natural law
Believed that the state of nature had natural laws based in moral obligations.
Freedom and independence
He believed in social contract
Evolutionary perspective
Origin of law and justice with references to principles of evolutionary biology
Study of human behavior
Scientific evolutionists seek empirical support
Transcendental perspective
Emphasizes primacy and superiority of the spiritual over the material
NATURAL LAW
The rule of law is based on what three elements?
- IT REQUIRES A NATION to recognize the supremacy of certain fundamental values and principles
- Values and principles MUST BE WRITTEN
- A SYSTEM OF PROCEDURES that holds the government to these principles and values must be in place
Procedural retributive Justice
Determing guilt and innocence
Three characteristics of common law heritage
- judgment law
-precedent (stare decisis) - Uncodified Regulation
a principle is not written in legislative laws or statutes, but rather, exists only by virtue of the common law
Substantive retributive justice
Determining proper punishment
Social contract
A social agreement where society gives up their rights in exchange for government protection
Due process model
Prioritizes the rights of the accused and the fairness of the legal process
Hold the agents of government in check against the arbitrary use of governmental powers
“EVERYONE IS INNOCENT UNTIL PROVEN GUILTY”
Sources of law (where do we get our law)
- constitution
- judge-made common law
- statutes
- ordinances
Map vs Ohio
4th Amendment
Unreasonable seizure
4th amendment was expanded from being applied to federal courts to state courts
Dollre Map was convicted of possessing obscene material after an illegal police search of her home for a fugitive
Doctrine of precedent
Requires judge to apply rule of law if cases are similar
Courts look at past similar cases to guide decisions
All courts have to follow the decision of the highest court in that state known as the U.S Supreme court
Bill of attainder
The government can’t arrest you and later make up a law about your arrest there must be an existing law
legislation that imposes punishment on a specific person or group of people without a judicial trial
Dysfunctions of law
- RIGIDITY inherent in its functional structure can’t be changed
- RESTRICTIVE aspects connected with its control function
- Laws can overstep their bounds And regulations can turn into overregulation
- PROCEDURAL INEFFICIENCY administrative delays at times justice is denied and innocent people are convicted.
Rule of law
The most important legal construct for any society in a democratic setting
Law not men govern and no one is above the law
Legal realism
THE STUDY OF LEGAL DECISION MAKING
examines how the law is applied
Evaluate law not as written but as practiced
Country of law not men
Standard of proof
Preponderance of evidence
The amount of evidence that is enough to persuade the evidence is more convincing the the evidence of the opposing party
The amount of evidence necessary to prove an assertion or calim in trail
Beyond a reasonable doubt
Factors that make judges decide cases
Guided by positive law or constitution
Positive law
Laws that arise from the norms and customs of a given culture
Laws made by a governing body or political community
Due process
Set of instructions or procedures given to the government before depriving a person of their LIFE, LIBERTY, OR PROPERTY for people suspected of committing a crime.
They must undergo investigation prosecution arrest questioning punishment adequate notice and give a person opportunity to be heard and defend oneself
Jury system originated from
Britain Henry II
When church banned trial
What kind of law does the municipal court make ?
Ordinances
ordinance is a law or regulation created by a local government, such as a city council or county board of supervisors.
Appointed confirmation of federal judge is made by who?
Appointed by President
Confirmed by senate
What court uses writ of certiorari
SUPREME COURT
Order to lower court to send the record of the case up to the Supreme Court
Marbury Vs Madison
Judicial review
Power of the Supreme Court to declare laws unconstitutional
What is justice?
Who defines justice?
ARISTOTLE defines justice as
“Justice consists of treating equals equally and unequals unequally according to relevant differences
History of law
England common law
Western legal tradition can be traced back to the CODE OF HAMMURABI
