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38 Cards in this Set
- Front
- Back
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Aristotle |
Pre-modern Father of modern western philosophy |
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St Augustine |
Pre-modern City of God: world without sin City of Man: coercive law because humans are weak Human autonomy <---> human law |
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St Thomas Aquinas |
Reconciled lex Aeterna with lex Humana, forming Lex Naturalis: Reasoning of law of God which translates back to secular governance
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Hugo Grotius |
Using natural law (Aquinas) natural law to understand interstate relations - father of public international law How does a secular state it derive its authority? - Consent through the social contract - natural rights = guarantees of individual autonomy |
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Hobbes |
Social contract w state establishes the ruler = leviathan, w complete authority to prevent social conflict. No natural rights. Law = SOCIAL CONTOL |
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Rousseau |
Non-monarchical form of state government. The state = Representative assembly of people General will of the polity = law Nationalist identity of the state |
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Kant |
Pure practical reason - reason without intuition and moral inclination so that it is universal Moral justification of modern state power - Positive & negative freedom is uniformly coercively enforced >> social cooperation and autonomous action |
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Code Napoleon |
Codified system of legal rules for a non-monarchical state that (i) expresses the 'general will' of the people (b) applies universally and comprehensively through the state Nationalism: Unity of the state derives from shared cultural-political psychology |
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Carl von Savigny |
German historical school of law to rival French code Roman law (German law derives from Roman law) vs Germanic law (Study of Germany's distinct legal practices) |
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Max Weber |
How does industrialization of society impact law? Bureaucracy = regulatory shift to abstract rules to replace relational decision-making |
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Hans Kelsen |
Foundations of law found in a legal system = self-referential collection of norms State is purely legal construct established by constitution, legitimacy |
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Carl Schmitt |
Law and action are different from another. Sovereign = the exception who can override the law when the law conflicts with the people State of emergency? |
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John Locke |
Constitutional monarch in England Social contract where "life, liberty and property" are at the core of natural rights. There is legitimacy in consensus and cooperation State has coercive power because of the social contract/public law (grundnorm) |
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Jeremy Bentham |
Tries to codify English law (ie Penal Code) Utilitarianism: government purpose is to bring greatest aggregate happiness to citizens and maximize social welfare |
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John Austin |
Law is the "commands of the sovereign" in either code or English common law |
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AV Dicey |
1) Common law reasoning for finding England's unwritten constitution 2) Constitutional system lies in judiciary, free from democratization 3) English constitution is not legal rights but judicial norms/precedent Westminster system |
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HLA Hart |
Law as autonomous from morality Primary rules = legal rules Secondary = process rules Rule of recognition for public officials to recognize secondary rules. A sociological fact |
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Joseph Raz |
Direct law Primary function of law = social control (ie preventing undesirable behavior, dispute resolution) Secondary function of law = ensuring law's own existence (ie rules of procedure, decision-making, processes of changing the law, regulating laws. |
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Lon Fuller |
Innate morality in legal practice. Locating morality in law w/o revoking that people are morally autonomous. Inner morality in the legal process 8 rules of law - sufficiently general, publicly promulgated, applies prospectively, generally understandable, free of contradictions, relatively stable, practically possible to obey, administered w/o wildly diverging from apparent meaning |
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Ronald Dworkin |
Intrinsic morality of the law in its decision-making process. Right answer thesis is controversial Interpretation: Norms of law converted into judgments in concrete cases. Balancing positivist legal norms (integrity) and moral considerations (justice). 3 stages of interpretation - take a collection of relevant rules, find intent and apply it to the case at hand. Modify it so that it's consistent w larger jurisprudence Weighing the outcome vs spirit of the law intending to advance Inner morality of law found in its interpretive process. Justice is an aesthetic |
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Law as reason/rationalization
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Raz
Dworkin |
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Law as practical governance |
Grotius - social contract, natural rights giving rise to autonomy Hobbes - social contract, with Leviathan. No natural rights To help us live and function in society Finnis - Guide for action |
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Law as will |
Gramsci - Problem of Hegemony/domination Schmitt - The Exception makes law and doesn't have to follow Code Napoleon |
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Legal pluralism |
When there's a conflict of official legal system and normative customary systems |
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Transnational Law |
Global economic order makes domestic/foreign distinctions v arbitrary. Territoriality is important - rise of nationalism, and the perception of self-determination of "nation-states" Cultural pluralism emergent from globalization. |
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Legal vs political constitution |
Dowdle: Singapore should have a political constitution b/c it is in a dynamic context and the constitution is not normatively enforced Kevin Tan: Singapore has a legal constitution - separation of powers is paramount. |
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Zhu Suli |
The state's right to rule is in what they've done. Advancing the interests of the people, in exchange for authority. Pragmatic approach |
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Roberts |
Law schools should focus on state law because that's what lawyers do. Non-state law shouldn't be regarded as law - widens the definition too much. Where does non-state law derive its authority? From norms of society? |
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Twining |
When we're lawyering, we have to look beyond law and non-state law to see the relations.
Boundaries between state law actors and non-state law actors are porous |
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Jessup |
Germinal articulation of transnational law: Everyone in Europe followed the jus commune and jus gentium because of understanding of Christendom. Safeguarding interests of jurists and of their class. Premises of transnational law within the European context. Westphalian conception of the state. Did not change much until colonialism, and exploration. |
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Jurisprudence |
An internal collection of norms that is made intelligible by its internal coherence and autonomy. |
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Neoliberalism |
The political project to make traditional liberalism and the global democratic order as the sole model of future development. |
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Normative systems |
- Customary/cultural: creations of colonialism - Religious: Islamic courts/Sharia Law - Economic/capital: lex mercatoria - Functional: system of rules with purpose beyond commercial ie schools, hospitals - Community: common identity/history |
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Shapiro |
Law gets authority from the state
- It is moral to follow law - Practicality - helps social ordering - We obey the law for our own reasons, and not for any intrinsic morality of the law. We choose to obey the law because we think we have to, and at any time we can remove that authority |
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Posner |
Judge then gathers materials not as a way of answering the case, but justifying interpretation. It is an intuitive process rather than inductive process.
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Trial of Gandhi |
Resistance against the authority of the law: Law has no authority if it doesn't have some sort of persuasive force. We can't blindly follow the law. |
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Gramsci |
Dominance was a form of command and threat (traditional marxist view) But this is not enough. Other classes (the masses) would unite and overthrow the hegemon. For control to be effective, the dominated classes have to consent. Consent to domination = hegemony (churches, schools, popular culture AKA civil society) Hegemony = guide for choice, just in a bad way. Hegemony doesn't allow you to make an informed choice, but it feels like a choice (social control) |
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Oakeshott (Optional) |
Societas (legal constitution) - People bound together by common set of rules Universitas (political constitution) - Not everyone is equal but they are working towards a common enterprise. |
