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Philosophy of Law > Test 1 > Flashcards

Test 1 Flashcards

1
Q

Descriptive

A
  • describing how something ‘IS’
  • facts
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2
Q

Normative

A
  • judging how something ‘OUGHT’ to be
  • Values
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3
Q

Is-Ought distinction

A

The recognition that there is a fundamental distinction between descriptive and normative knowledge
- how things are and how they ought to be are two different kinds of enquiry
- facts about the world cannot tell us what we should value (naturalistic fallacy)
- what we value cannot tell us facts about the world (moralistic fallacy)

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4
Q

Descriptive Typical Domain

A
  • physical sciences
  • social sciences
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5
Q

Normative Typical Domain

A
  • Morality
  • Politics
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6
Q

What is Morality

A
  • Like law, morality is a set of rules, principles, values, and/or considerations that regulates human behaviour
  • It normatively tells us what we should or shouldn’t do
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7
Q

Normative Ethics vs. Descriptive Ethics

A

normative ethics analyses how people ought to act whereas descriptive ethics analyses what people think is right

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8
Q

The Good vs. the Right

A

The Good = morally desirable outcomes
The Right = morally correct conduct

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9
Q

Is the Good prior to the Right, or is the Right prior to the Good?

A
  • Which one is conceptually prior to the other (i.e. comes first)?
  • In other words, which one is more basic, or fundamental, to morality?
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10
Q

What branch of philosophy believes good prior to the right

A

consequentialism

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11
Q

What branch of philosophy believes the right is prior to the good

A

Deontology

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12
Q

What branch of philosophy believes ‘the means justify the end’

A

deontology

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13
Q

What branch of philosophy believes ‘the end justifies the means’

A

consequentialism

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14
Q

Consequentialism

A
  • theory of morality
  • Evaluates actions, rules, policies, laws, systems, etc. on the basis of their consequences
  • The right thing to do in any situation is whatever produces the best overall outcome
  • For consequentialists, the purpose of morality is to make the world as good of a place as possible
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15
Q

Utilitarianism

A
  • The most prominent sub-class of consequentialism
  • Defines ‘the Good’ in terms of utility
  • Utility = happiness, pleasure, wellbeing
  • like a math equation to get the most happiness
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16
Q

Influential Utilitarians

A
  • Jeremy Bentham
  • John Stuart Mill
  • Peter Singer
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17
Q

Hedonistic Utilitarianism

A
  • Happiness is defined as pleasure – the quantity of happiness that people actually experience
  • Doesn’t discriminate between different types or sources of pleasure (happiness is happiness)
  • Bentham: “Pushpin (a simple children’s game) is as good as poetry”

(all happiness is equal … cocaine = to poetry)

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18
Q

Eudaimonistic Utilitarianism

A
  • Happiness is defined as welfare – a measure which takes both quantity and quality of happiness into account
  • Some kinds or sources of happiness are deemed morally worthier than others – a lesser amount of high-quality pleasure may morally outweigh a greater amount of low-quality pleasure
  • Mill: “It is better to be Socrates dissatisfied, than a fool satisfied”

(Not all happniess is valued equally
some is intrinsically more valueable)

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19
Q

Act Utilitarianism

A
  • Utility is calculated for each and every action we perform
  • We should always do whatever action maximizes utility

(Calculate utility at every moment/choice)

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20
Q

Rule Utilitarianism

A
  • Utility is calculated for rules that we generally follow
  • We should always do whatever action obeys a utility-maximizing rule

(Pick utility maximizing rules rather than utility maximizing actions)

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21
Q

Nature of law

A

Jurisprudence

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22
Q

Moralistic Fallacy

A
  • An error in reasoning that occurs when someone inappropriately uses normative values to determine descriptive facts
  • Deriving an ‘is’ from an ‘ought’
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23
Q

Naturalistic Fallacy

A
  • An error in reasoning that occurs when someone inappropriately uses descriptive facts to determine normative values
  • Deriving an ‘ought’ from ab ‘is’
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24
Q

Humes Guillotine

A
  • his distinction between ‘is’ and ‘ought’
  • The image of a guillotine’s clean ‘chop’ captures Hume’s notion that there is a clear, unbridgeable gap between descriptive and normative knowledge
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25
Q

What is this an example of;
Joe deserves to win the lottery. Therefore, Joe will win the lottery.

A

Moralistic Fallacy

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26
Q

What is this an example of;
Child poverty is terrible. Therefore, there is no child poverty.

A

Moralistic Fallacy

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27
Q

What is this an example of;
Humans can’t naturally fly. Therefore, airplanes are evil.

A

naturalistic fallacy

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28
Q

What is this an example of;
I have a right to own a gun. Therefore, gun control laws aren’t effective at stopping gun violence.

A

moralistic fallacy

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29
Q

What is this an example of;
Our ancestors didn’t vaccinate their kids. Therefore, we shouldn’t either.

A

naturalistic fallacy

30
Q

What is this an example of;
Homosexuality is unnatural. Therefore, it is immoral.

A

naturalistic fallacy

31
Q

objections against utilitarianism

A
  • Utilitarianism is too demanding
  • Utilitarianism isn’t demanding enough
32
Q

How is utilitarianism to demanding

A
  • Any theory that says we ought to maximize some value will likely set very high moral standards
  • No matter how much good you’ve done for the world, there’s probably even more you could always be doing

ie) - Instead of going on a fancy vacation, you could donate that money to poverty-relief
- Instead of watching TV, you could be volunteering for a good cause
- Etc.
- It would seemingly require us to radically reorient our lives toward improving the world
- When we inevitably fail to maximize the good, it would imply that we’ve done something morally wrong

33
Q

No-rest objection

A

When utilitarianism is to demanding

34
Q

How is utilitarianism not demanding enough

A
  • bar may be set to low in some areas
  • Particularly when it comes to certain kinds of action that we may feel are never morally right to do
  • If murdering, lying, stealing, torturing, etc. end up producing better overall consequences than not, utilitarianism would say we morally ought to do those things
35
Q

Deontology

A
  • For deontologists, certain actions are morally right or wrong, regardless of their consequences
  • It’s not that deontologists don’t care about improving the state of the world. Rather, for them, that’s not the primary focus of morality
  • Morality is about making sure that your own actions and motivations adhere to certain moral norms / rules
36
Q

Who says;
“Morality is not the doctrine of how we make ourselves happy, but of how we make ourselves worthy of happiness.”

A

Immanuel Kant

37
Q

3 actions of deontological theory

A

Required – we must do it, no matter the consequences
Forbidden – we may not do it, no matter the consequences
Permitted – we have a right to do it, no matter the consequences

38
Q

Most influential deontological theory

A

Kantianism
Named for German philosopher, Immanuel Kant (1724 – 1804)

39
Q

Should batman kill the joker (consequentialist)

A

Consequentialist: Yes!
If we think killing is bad, there’ll be a lot less killing in the world if Joker is dead
By not killing Joker, Batman is responsible for all of Joker’s future victims – since he could have prevented their deaths
Batman selfishly chose to keep his own hands clean, rather than doing what needs to be done

40
Q

Should batman kill the joker (deontologist)

A

No!
It doesn’t matter how many more people Joker will go on to kill. That’s not Batman’s responsibility
Batman is responsible for his own actions – in this case, he must ensure that his own conduct complies with the moral rule prohibiting killing
Even if it saves lives, killing Joker would make Batman the very thing that he set out to prevent in the first place: a killer!

41
Q

Kantianism

A
  • For Kant, humanity stands apart from the rest of creation as beings who have ‘dignity’ – higher, intrinsic moral worth
  • The source of human dignity is our unique capacity for reason
  • autonomous – we can rise above the forces of nature and act in ways of our own choosing, using reason
  • (we are not heteronomous)
42
Q

Categorical Imperative (very Very important)

A
  • duty to respect human autonomy/dignity
    (Human are Autonomous and intrinsically valuable beings
43
Q

Imperative

A

something we ought to do
(urgency implied)

44
Q

categorical

A

we ought to do it in every circumstance (not just when we feel like it, or when the consequences will be good)

45
Q

3 formulations of the Categorical Imperative – all are supposed to mean the same thing

A
  1. The Universal Law Formulation
  2. The Humanity Formulation
  3. The Autonomy Formulation
46
Q

The Universal Law Formulation

A
  • Act only on that maxim through which you can at the same time will that it should become a universal law.
    Morally permissible conduct is that which applies equally to all humans (as a universal law)
47
Q

The Humanity Formulation

A

-Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.
Respecting human dignity means we should never treat people (either ourselves or others) as mere objects to be used
People are autonomous and we should treat them as such

48
Q

The Autonomy Formulation

A

Act always on the maxim of such a will in us as can at the same time look upon itself as making universal law.

49
Q

maxims

A

principles

50
Q

who says ‘Utilitarian moralists have gone beyond almost all others in affirming that the motive has nothing to do with the morality of the action, though much with the worth of the agent. He who saves a fellow creature from drowning does what is morally right, whether his motive be duty or the hope of being paid for his trouble…’

A

John Stuart Mill

51
Q

Objections To Kantianism

A
  • overly-rigid
  • Any theory that requires, forbids, or permits certain actions regardless of the consequences may require us to sit back and allow seemingly terrible things to happen
52
Q

who says ‘ Truthfulness in statements which cannot be avoided is the formal duty of an individual to everyone, however great may be the disadvantage accruing to himself or to another’

A

Immanuel Kant

53
Q

Who says ‘ By telling an untruth…, I cause that declarations should in general find no credence, and hence that all rights based on contracts should be void…, and this is a wrong done to mankind generally’

A

Immanuel Kant

54
Q

Does Kant think you can lie?

A
  • Kant famously asserted it is never morally permissible, under any circumstance, to tell a lie
  • Not only would that world suck to live in, but it logically contradicts the intention behind your lie – to make someone believe your deceitful statement
55
Q

Separation Thesis

A
  • There is no necessary connection between law an morality
  • Not only would that world suck to live in, but it logically contradicts the intention behind your lie – to make someone believe your deceitful statement
  • law = descriptive
56
Q

Legal positivism (major theory of law)

A
  • The separation thesis is most commonly championed by thinkers who subscribe to a particular theory of law called ‘legal positivism’
  • When we are answering the descriptive question ‘what is the law?’, our normative values should play no part in our answer.
  • also accept the social thesis
57
Q

who said;
‘When we are answering the descriptive question ‘what is the law?’, our normative values should play no part in our answer.’

A

John Austin (this is legal positivism)

58
Q

Social Thesis

A
  • Law fundamentally consists in a series of social facts
  • law is created by – and does not exist independently of – human activity
  • What makes a law a law are certain facts about the way our society is socially organized
59
Q

Classic Legal Positivism

A
  • law = the commands of a sovereign
  • Sometimes called ‘the imperative theory of law’
  • John Austin & Jeremy Bentham
60
Q

Modern Legal Positivism

A
  • Law = a system of socially-accepted rules
  • H.I.A Hart
61
Q

What makes a law a law in classic legal positivism

A

The social fact that a recognized authority has commanded it!

62
Q

who says;
‘It is not wisdom, but authority that makes a law’

A

Thomas Hobbes

63
Q

`Different Systems with different kinds of sovereigns

A

q- Monarchy (rule by one)
sovereign= king , queen ,emperor
- Theocracy (rule by God)
sovereign= God
- Democracy (rule by the people)
sovereign= the people

64
Q

For classical legal positivists, what makes sovereign commands uniquely important

A

enforceability

65
Q

Problems with Classical Legal Positivism

A
  • The abundance of laws seemingly not backed by threats of punishment constitutes a major problem for classical legal positivism
66
Q

Modern Legal Positivism

A
  • Law should be understood as a system of socially-accepted rules, rather than only commands
  • Rules may be accompanied by threat of punishment, but need not always
67
Q

H.L.A Harts 2 kinds of rules for modern legal positivism

A

Primary Rule; - Rules about what we can and cannot do
- Make some forms of conduct non-optional
Secondary Rule; - Rules about how you can make, change, or eliminate primary rules

68
Q

Hart on rules

A

Rules become ‘law’ when they are generally recognized as law by the people governed by them

69
Q

The Rule of Recognition

A
  • A ‘master rule’ (or series of rules) which determines which rules count as law
  • Can vary drastically between different legal systems
70
Q

Which Social Facts Make A Law

A

Classical Legal Positivism (Austin): the commands of a sovereign
- Backed by the threat of enforcement

Modern Legal Positivism (Hart): rules people recognize as ‘law’
- Recognized via a Rule of Recognition

71
Q

Legal positivism is a theory of law that accepts

A
  1. The Separation Thesis:
    law ≠ morality
  2. The Social Thesis:
    law = social facts

Philosophy of Law (1 decks)

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