SU 2: The law and philosophy of law

Question 1

WHAT IS THE LAW

Answer 1

• The law is rules that govern the interaction of people.
• Maintains order in human society
• Determines which behavior is acceptable and not.

Question 2

SOCIAL CONTRACT

Answer 2

Is the awareness that people need order in society, members of society authorize their leaders to organize group to ensure survival.

Question 3

LAW DEFINITION

Answer 3

Sets rules that regulate human conduct, regarded as binding and enforced by the state.

Question 4

LAW IS PRESCRIPTIVE OR DESCRIPTIVE?

Answer 4

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)

Question 5

LEGAL POSITIVISM

Answer 5

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

Question 6

NATURAL LAW

Answer 6

Human nature ought to be judged against a higher standard of morality

Question 7

NATURAL LAW DEFINITION

Answer 7

Natural law (latin: ius naturale/ lex naturalis) a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature.

Question 8

MARXIST DEFINITION OF LAW

Answer 8

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.

Question 9

FEMINIST DEFINION OF LAW

Answer 9

Argue that the law entrenches gender inequality

Question 10

CRITICAL RACE THEORIST DEFINION OF LAW

Answer 10

Argues that laws entrench racial inequality.

Question 11

LAW AND MORALITY

Answer 11

Morality is a system of morals- these are individual or group beliefs about what is wrong and what is right.

Question 12

LAW AND RELIGION

Answer 12

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

Question 13

INDIVIDUAL MORALITY

Answer 13

Morality is every individuals ideal self image

Question 14

COMMUNITY MORALITY

Answer 14

Norms of whole community or groups within the community

Question 15

DISTRIBUTIVE JUSTICE

Answer 15

Equal distribution among equals

Question 16

CORRECTIVE JUSTICE

Answer 16

Aims at restoring inequalities

Question 17

DIFFERENCE BETWEEN LAW AND JUSTICE

Answer 17

Law is a set of rules to maintain order in society while justice is a concept based on equality, fairness and morality.

Question 18

SUBSTANTIVE LAW

Answer 18

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

Question 19

PROCEDURAL LAW

Answer 19

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

Question 20

IGNORATIA JURIS NON EXECUSAT

Answer 20

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

Question 21

LEGAL CERTAINTY FACTORS

Answer 21

1. Language
2. Hanging values
3. Judicial discretion

Question 22

LEGAL CERTAINTY

Answer 22

Means that the law is certain and is constantly applied