SU 2: The law and philosophy of law Flashcards
WHAT IS THE LAW
- The law is rules that govern the interaction of people.
- Maintains order in human society
- Determines which behavior is acceptable and not.
SOCIAL CONTRACT
Is the awareness that people need order in society, members of society authorize their leaders to organize group to ensure survival.
LAW DEFINITION
Sets rules that regulate human conduct, regarded as binding and enforced by the state.
LAW IS PRESCRIPTIVE OR DESCRIPTIVE?
Prescriptive (law prescribes how human beings in an ordered society are ought to behave and what should happen if they depart from prescribed legal norms)
LEGAL POSITIVISM
Philosophy of law that emphasizes the conventional nature of law that is the social of nature.
-according to positivism, law is synonymous with positive norms that are made by the legislator or is considered as common law or case law
NATURAL LAW
Human nature ought to be judged against a higher standard of morality
NATURAL LAW DEFINITION
Natural law (latin: ius naturale/ lex naturalis) a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature.
MARXIST DEFINITION OF LAW
Argue that law is not neutral since it always favors the interests of the ruling class. Believe that it is an instrument for oppressing the proletariat/ working class.
FEMINIST DEFINION OF LAW
Argue that the law entrenches gender inequality
CRITICAL RACE THEORIST DEFINION OF LAW
Argues that laws entrench racial inequality.
LAW AND MORALITY
Morality is a system of morals- these are individual or group beliefs about what is wrong and what is right.
LAW AND RELIGION
Law is often influenced by religious rules, practices and beliefs.
- Religion determines the relationship individual and supreme being.
- content of religion and legal rules are often the same
- religion may classify some actions as sin but the law will not punish such actions
INDIVIDUAL MORALITY
Morality is every individuals ideal self image
COMMUNITY MORALITY
Norms of whole community or groups within the community
DISTRIBUTIVE JUSTICE
Equal distribution among equals
CORRECTIVE JUSTICE
Aims at restoring inequalities
DIFFERENCE BETWEEN LAW AND JUSTICE
Law is a set of rules to maintain order in society while justice is a concept based on equality, fairness and morality.
SUBSTANTIVE LAW
Area of law that governs rights and obligations of those who are subject to it. Defines legal relationship of people with other people or between them and the state
PROCEDURAL LAW
Comprises a rule by which the court hears and determines what happens in civic lawsuit, criminal or administrative proceedings. Rules are designed to ensure a fair and consistent application of due process to all cases that come before the court
IGNORATIA JURIS NON EXECUSAT
Legal principle holding that a person who is unaware of the law may escape liability for violating the law merely because they were not aware of the content
LEGAL CERTAINTY FACTORS
- Language
- Hanging values
- Judicial discretion
LEGAL CERTAINTY
Means that the law is certain and is constantly applied
