Untitled Deck Flashcards
What is law?
A set of statutes that individuals within a society are governed by and are compelled to follow
Made in the house of commons and taken from Britain
What is a statute?
A law passed by the government
Define jurisprudence.
Knowledge or skill in the law; the science that deals with the investigation of concepts, notions, and principles of legal thought
What does jurisprudence enable us to do?
- Explore the nature of the origins of law and legal institutions
- Clarify the principles upon which they were founded
- Understand court decisions and legal statutes
- Understand society’s attitude towards the law
- Predict the future path of legal thinking
What is the right to a fair trial?
The right to have one’s case adjudicated fairly by a judge or jury
What is justice in the context of law?
The belief that an accused has the right to present their case to a judge or jury, with decisions based on reasoned judgment on the law and evidence
What does due process refer to?
A fair proceeding under the law
What is the functional purpose of law?
To state which rights and obligations society has in the course of legal proceedings
Define philosophy in the context of law.
The process of critical inquiry into the concepts of a particular branch of knowledge through the use of logic and reason
What method did Greek philosophers introduce for developing human thinking?
The Socratic method, which involves a process of question and answer
What are the two fundamental legal traditions in legal philosophy?
- Natural law
- Positive law
Define natural law.
The theory that law has some higher or divine origin; a set of ideals that are universal and absolute
What is positive law?
Law in which human authority has its origin.
the theory that is derived from the belief that law is simply what the political authority or lawmaker commands.
Law and justice are not 2 different entities as natural law claims.
Therefore, the condition of human law is not confirmed to certain standards of mortality and justice
The only human morality is the obedience to the law
What did Plato believe about laws?
All laws should reflect certain universal, absolute, and eternal truths and virtues.
Plato believed that humans could never fully achieve these truths, but that their laws nevertheless should attempt to do so.
Laws needed to reflect a universal good
Plato believed that it is worse to commit an injustice than to suffer one and be punished because an injustice destroys one’s soul.
All laws should reflect certain universal absolute and eternal truths and virtues
What was Aristotle’s contribution to natural law?
Founded contemporary thinking on natural law, believing justice is within the grasp of humans
Who was Cicero and what was his belief regarding civil law?
Wrote during the Roman era; believed in a notion of universal and unchanging natural law and proposed civil disobedience against unjust laws
What did St. Thomas Aquinas believe about laws?
Laws were created by the natural world and known to humans through reasoning and divine revelation
What are ‘right acts’ according to Aquinas?
Actions that follow natural law
What is the ‘Is-Ought Problem’ as stated by David Hume?
Just because something is a certain way in nature doesn’t mean that’s how it should be
What are the core principles that Natural Law Theorists agree on?
- Unchanging principles of law exist in nature
- These principles are accessible through reason
- They apply to all men at all times
- Man-made laws are just only if derived from principles of law in nature
What does it mean for natural laws to be ‘self-evident’?
They can be understood through reason without needing proof
What did Cicero advocate for regarding unjust laws?
He believed people should not follow laws that conflict with natural law
What is Hobbes’ view on the law of nature?
It is a dictate discovered through human reasoning
What did Charles Rice argue about laws and God?
It’s not possible to pass laws without God, as natural law ultimately comes from Him
How do Augustine and Aquinas differ in their understanding of natural law?
- Augustine believed human reason is corrupted and needs grace to understand natural law
- Aquinas believed humans can understand natural law through reason even after the fall
How did Calvin move away from Natural Law?
By focusing more on the Bible and specific teachings rather than on natural law or reason alone
What historical event was influenced by John Locke’s writings?
The American Revolution and the creation of the Declaration of Independence
What struggle exists when merging Greek Natural Law with Biblical natural law?
Greek natural law is based on human reason, while Biblical natural law is rooted in God’s authority, leading to potential conflicts between autonomy and submission to God’s will
What do advocates of Natural Law argue about the authority of laws?
A law’s authority comes from the moral principles it is founded on
They believe that if a law conflicts with morality, it has no real authority.
What is a major setback faced by Natural Law theorists?
The challenge of fully comprehending human nature
Many scholars question the existence of a universal human nature.
What theory does Thomas Aquinas advocate regarding Natural Law?
A natural law theory that connects human nature with purpose
He argues that humans can discover their purpose through reason.
Define the ‘social contract’ as supported by philosophers like John Locke.
Citizens agree to obey laws in exchange for benefits like security
The state cannot infringe on certain natural rights.
What is the U.S. State Department’s view on international rights?
International human rights have expanded beyond traditional natural law
This suggests a limitation or rethinking of rights in the context of U.S. founding principles.
Why does the author think appeals to natural law might not be effective in legislation?
Defence and interpretation of human rights are inherently political
Relying on natural law could obscure political agendas.
What does positivism deny regarding metaphysical questions?
It denies any validity to speculative or metaphysical questions
Only scientific knowledge assembled by man is considered valid.
What is positive law derived from?
The belief that law is what the political authority commands
It does not confirm to standards of morality and justice.
What is the role of government according to positive law theorists?
To provide the greatest possible advancement of human happiness
Morality is measured by obedience to the law.
Identify one way in which positive law differs from natural law.
Source of law
Natural law is based on divine revelation, while positive law is created by human authority.
What is the greatest virtue of positive law according to John Austin?
It serves to protect individuals’ natural rights
Such as life, liberty, and property.
List statements from the Declaration of Independence that reflect natural law theory.
- All men are created equal
- Endowed with certain unalienable rights
- Life, liberty, and the pursuit of happiness
- Governments derive powers from the consent of the governed
- Right to alter or abolish destructive governments
These statements encapsulate fundamental natural rights.
What does ‘moral rectitude’ mean in utilitarianism?
Actions are morally right if they maximize overall happiness
Mill distinguishes between higher and lower pleasures.
How does Mill’s Utilitarianism relate to Bentham’s work?
Mill builds upon and modifies Bentham’s foundational ideas
He introduces qualitative distinctions in pleasures.
Define law as a legal concept.
Abstract qualities of justice, legitimacy, equality, and morality
Law is seen as illegitimate when it fails to embody these concepts.
What role does law play as an instrument for society?
Reflects collective goals and values of society
Protects political rights and freedoms.
What are primary sources of law?
- Religion
- Customs and conventions
- Social and political philosophy
These influence laws and their interpretations.
What distinguishes civil law from criminal law?
Civil law is private; criminal law is public
Civil law resolves disputes; criminal law protects society.
What is substantive justice concerned with?
The justice of the criteria upon which laws are based
The content of the law itself must be just.
What is the authority of law in relation to government?
Authority to check the abuses of government and to exercise moral veto over its action.
What is considered the perfect law?
Perfect law is God’s law.
Who was John Stuart Mill and what was his philosophy?
John Stuart Mill was an English philosopher whose philosophy was designed around utilitarianism, which measures actions that benefit more people than they hurt.
What does Mill believe freedom requires?
Freedom requires people to exercise their judgement and accept its consequences.
What is substantive justice?
Concerned with the justice of the criteria upon which laws are based.
What does substantive justice state about the content of law?
The content of the law itself must be just, and legality and justice must be equal.
What makes laws unjust according to substantive justice?
Unjust laws do not conform to the values society applies in deciding what is just.
What does positive law theory assert?
Whatever the government deems just equals justice.
What is procedural justice concerned with?
Proper administration for appropriate conduct.
What is essential for procedural justice?
Applying principles of the law rather than with nature and substance.
What is an example of procedural justice?
A judge cannot replace a jury verdict.
What is the purpose of justice according to the text?
Justice involves granting a complete and fair hearing to all parties.
What concept is associated with Plato?
Divine justice, truth.
What concept is associated with Aristotle?
Reasoning.
What concept is associated with Cicero?
Civil disobedience.
What concept is associated with Aquinas?
Divine and revelation.
What concept is associated with Austin and Bentham?
Utilitarianism.
What concept is associated with Hobbes?
Evil.
What concept is associated with Augustine?
Church law reigns supreme.
What concept is associated with Mill?
Utilitarianism/individual freedom.
Sovereignty
the principle upon which a nation or ruling body comes to exercise supreme political authority jurisdiction or power over the affairs of the state.
Internal Sovereignty
involves identifying the ultimate source of supreme power and authority within a nation.
External Soverignty
the idea that a nation is an autonomous (independent) political, social, and cultural entity. (free to not be interfered with by other countries, are able to do whatever they want) as a legal entity that state claims to have rights, obligations, and authority with respect to other nation states.
Bentham
An authoritative body exists which hands down laws (Natural Law Yes)
The people obey these laws. (Natural law Yes)
Law is handed down in the form of statues (Natural law Yes)
Law is formulated to provide the most gratification to the greatest number of people. (Natural law No)
Laws can be handed down by the courts in the form of judgment and precedent (Natural law Yes)
Law is enforced through mechanisms of sanctions and penalties. (Natural law Yes)
Austin
Law must provide an objective standard for human conduct. (Natural law would agree)
Law is functional in society (natural law agree)
Law is not to be judged by its quality, but rather by the place it occupies in controlling and regulating society (Natural law disagree)
Individual morality has no place in making law (Natural law agree)
The social good is to be advanced through law (Natural law agree)
