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133 Cards in this Set
- Front
- Back
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John Stuart Mills
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i. Conception of liberty justified the freedom of the individual in opposition to unlimited state control
ii. Proponent of utilitarianism: the moral worth of an action is determined only by its resulting outcome maximizing happiness and reducing suffering iii. Theory of liberty: it is acceptable for someone to harm himself as long as he is not harming others but excuses those who are incaple of self-government iv. He argues that despotism (tirannie) is an acceptable form of government as long as the despot has the best interest of the people at heart |
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Utalitarians
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Mills, Bentham, Hart, Austen
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John Austen Theory
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Law is Comman
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Damot
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Analytic jurisprudence v. social jurisprudence
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Jurisprudence exams
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Human behavior, how people are controlled and not why
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Herbert Wechsler
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Narutal Law -
Law stems from moral Potentially no way for enforcement All con cases should be decided if they meet procedural requirements--> duty which is often breached |
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Hart
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A Concept of Law
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Rawls
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A Theory of Justice, ppl are behind a veil of ignorance when attempting to determine fair arrangement for society
Kantian Universalist |
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Hart
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Legal positivist, but not like Austen
Penumbra of Rights in Griswold v. CT |
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Lon Fuller
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Case of Spulcean Explorers = natura law
debated w/ hart (who was apositivists arguing laws and morals are sparate) |
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Legal positivism
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o Positivists believe in a separation between the law as it is and the law as it should be. Legal rights and moral rights are not related, beyond mere coincidence. Hart believes the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims. Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A "core" case would be one that the statute is intended to cover. In the classic example, a statute that bans vehicles from a park is obviously intended to cover cars. A "penumbra" case would be one not considered by the creators of the law, such as a skateboard in the example above. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words in the statute.
o The natural law view believes that the creation of law should be based on natural laws or common morals. Laws are viewed based on purpose, not on meaning of the words. In the vehicle in the park example above, Fuller would say that it would depend on the purpose for banning vehicles from the park. For example, if the purpose were to prevent noise pollution, a bicycle would not be a vehicle for the purposes of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpretation of statutes relies much more heavily on legislative history. |
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Legal systems
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can be exported/tranplanted
i.e. roman law |
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Epistomology
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Decartes, I think, therefore I am
Humans are fallible Everything a blank slate |
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Ardrey
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The Social Contract - Natural Law
ppl surrender some right for protection for protection of remaining rights |
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Rousseau
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Rousseau proposed that although The Social Contract was not embodied in a written constitution, he believed that is a likely form it may take.
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Problems with social contract
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May not provide for termination
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Civil Liberties
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are not absolute, subject to suspension
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Problem with natural law
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Even if rights confered, no effective means of enforcement
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Darwin
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Survival of the fittest applied to society by Herbert Spencer
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Bill of Rights
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Not a comprehensive list of rights of man
Americans had rights even if not explicit before bill of rights con = fraework of gov bill of rights = mix, afterthought |
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Purpose of 2nd ammend
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Hunting BUT ALSO arm militia
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A decline in the role of god/morals
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led to the belief that law stems from the sovereign, positivism
Nation-state is the primary focus in intl law |
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Austen
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'Law is command'
not from military support positivism, silent on the role of intl law |
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Nat law lawyers
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in order for a law to be enforced/upheld it must be adequate morally
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Austen also suggest
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that incentives and disincentives serve a better role
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Law is command does not address
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the fact that many rules/laws are default (probate code UCC)
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Austen may have been trying to
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suggest law should be obeyed and not necessarily the origins of law
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Ronald Dworkin
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critques Hart's legal positivism,
Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one's principles are skewed enough. To discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. All interpretation must follow, Dworkin argues, from the notion of "law as integrity" to make sense. Law and morality have an epistimic relation as opposed to an onotlogical one (nat law) |
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Dworkin argues
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application of no may should profit from his own wrongdoing would prevent the state from awarding estate to widow of woman who killed her husband (does not address state supreme court actually doing that)
Riggs v. Palmer |
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As a system matures
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it tend to add exceptions to laws
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Rules are
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more specific than a standard
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Legislation varies in
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its level of specificity
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Jacobellis and Papachristou impose
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a duty of legislative specificity
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The code of professional responsibility
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does not prohibit attnys from arguing against the spirit of the law
attnys can also counsel clients on how to achieve something indirectly that is directly illegal |
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Law is
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also a system of justice, i.e. tragedy of the commons
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Austen must be wrong
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if his command theory included intl law
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The law of the high seas is predicated
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on a super-national universalist theory
Univeralsilism - some system of ethics applies universally, regardless of culture, race, sex, religion, nationality, sexuality |
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Inl law
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did not treat the building of the Panama canal as illgeal
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A diplomat can
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• A diplomat accused of a serious crime can hide behind diplomatic immunity
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Grotius
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not all war illegal, casus belli
can institute a draft for a bad/illegal war |
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Post-colonial third-word nations
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can come into existence even if they do not have a viable economic basis
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Norway and Iceland w/r/t fishing rights
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boy killed his parents then ask for lienancy because he was an orphan
created the situation by ceding |
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Roman Catholic Chucrch
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had intl influence standing even before it became its own state
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Nationhood
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confers status and privliage within the intl community
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DOnt need to be on the secuirty council to have nuclear weapons, but strong correlation
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ie N Korea
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Possessing nuclear weapons
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increases a nations chances it will be heard
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technology
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has not made traditional diplomacy obsolete
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Treatyer provisions
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not very useful, US does not enter into a lot of traties
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Roman law
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incoproates intl law more than common law, US domestic law trumps any intl law, civil law makes treaties law
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Belligerent nations
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still communictae with one another but as a matter of int do not accept diplomats
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Int law
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does not bind the SCOTUS, European Convention on Human Rights have subordinated EU countries (US not a party)
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Nat law
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no geogprahic limit, unlike positivism
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EU convention on human rights
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does not bind its member, takes margin of appreciation method by ECJ
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Margin of appreciation
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not in european convention explicity, approach adopted by ECJ
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Lord Cook
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law is pure reason, much critism
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Kant
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disproved pure reason.
law of contradiction aufficient to prove all knowledge wrt the law 'an intelligant man is intelligent' |
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advocates reasoning with their clients
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is not disinterested
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in most legal arguments
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there are valid arguments on both sides, so therefore law is also an expression of preference
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in common law
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propositions of law are understood in the background of facts, not the same for the civil proprositions of law....addressing a wide variety of people and not just the case at bar
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codified law
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encourages thinking on a higher level
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hybrids pose a difficulty of categorizing an issue
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with respect to binary rules
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Baysiean truth
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sherlock holmes, 100% true = no doubt
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res ips loquitor = the facts speaks for themselves
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shows duty and breach together, ie probleems with surgery dont know who did it but patient certinly did not
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Census
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not 100% accurate, bare head count need questions regarding race etc. problems of bias, what is exactly mandated?
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Private parties
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do not often prove gov stats wrong because of info costts
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Brandeis brief
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Mueller v. Oregon, shaped law....can show effects of decision on larger pro and not witth the case at hand...more like civil law? facts sewed, ie in the case.
Also, paved the way for class actions |
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US courts do not admit
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all the facts, have strict procedural rules....protection of rights etc.
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law has not been influenced by
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phil skeptiscism
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C sections
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an example of discrepancies, when to do what
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Doubert
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posits fear with respect to using formal creditals as a proxy of experience. Judical recognition of experts do not assure that that person is the most qualified to speak about the issue....slanted considerably in favor of
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In a random walk down wallstreet
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Malkiel questions to need for financial advisors
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Rights establish by poli processes
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can be taken away via poli process unless entrenching measures made
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no right is indefinite or irrevocable
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law hates perpetuity
also subject to poli process |
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law of irrevocale entitlements is
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more de fact than de jure
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If people given a right they do not directly pay for
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there is more opposition to taking that right away
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Hohenfeld
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jural opposites and jural correlatives to all rights ie (right/no right or right/duty)
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poltical campaign to establish rights
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do not always link duties to them
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In Tyler, Justice Holmes observed,
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ALl rights are really against persons
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Rights are never
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cost free, justice holmes. no such thing as a free lunch
a. a right I assert is paid for by another b. No such thing a s a free right |
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Arthur Pigou
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may agree that no right is free, but those asserted against an amorphous group difficult to identify
ie black smoke in a river |
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Pirgou effect
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If cost of living deacreases, then money spent from family income will increase in the market and overall wealth as a result will increase
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Universal Declaration of Human Rights
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ideal, not what is actually granted by nations of the world
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Wirt of habeus corpus
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only works if offficials ackowledge person is in custody
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ACLU
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not rep of pub at large
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2nd ammend
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does not provide for a system of background checks
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found fathers intent
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does not always typify todays modern con law due to societal changes
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ACLU is
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selective in its fights,
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ACLU does not believe
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emergency powers should be more feared than emergencies
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ACLU
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took up the passage of the = rights ammend as the next big thing, jumped on the wagon of gender equality
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ACLU supports civil liberties
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not plainly enumerated in con
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Mills
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May have influenced con construction
i. Conception of liberty justified the freedom of the individual in opposition to unlimited state control ii. Proponent of utilitarianism: the moral worth of an action is determined only by its resulting outcome maximizing happiness and reducing suffering iii. Theory of liberty: it is acceptable for someone to harm himself as long as he is not harming others but excuses those who are incaple of self-government iv. He argues that despotism (tirannie) is an acceptable form of government as long as the despot has the best interest of the people at heart |
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Proble with utilitarian calculation
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the happiness ppl get from less than desirable acts not considered (smoking)
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Poli official who support
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eglaitarin policies do better on the whole
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Lord acton
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keep poli equal to the people
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Grigg v. Power
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ackoeldges disparate impact but permits it with respect to upward mobility in the workplace based on tests
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Equality of freedom
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for people to do what the want is essential, start everyone off on the same foot
v. equality of outcome, shift to what is equality now |
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Milton Friedman
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believed in the free market w/ minimal gov intrusion
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Equality at the concept
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provides for freedom, equality of outcome limits overall freedom
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J. Dougals
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read intent / purpose of con = nat law creating right to privacy
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Nat law
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Darwinism a form of it, most tagh by catholic church
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Thomas Aquinas
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that for the knowledge of any truth whatsoever man needs divine help, that the intellect may be moved by God to its act.
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environtmentalist
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wants world to be as close to nature as it can be
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Hermeneutics
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science of text interpretation, especially in areas of literature, religion and law
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Taxonomy
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classification
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Epistomology
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how we know what we know
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Con Law
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is natural law
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Law is not =
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some laws are more important than others
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o Palko & Connecticut:
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ex how a fund righ can give way to other important gov interests
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Positivism
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necessary element is a source of rights/laws
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Bentham
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positivism to an extreme, no god
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Theology
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// nat law
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Betham believed
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written codified law of nations, common law for brutes
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Jurisprudence believes
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that law is not always mandatory, stemming from one source or command
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Intl law
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involves practice and custom, not just from one source ....common law //
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Bismark
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treaties were not binding, legit in so far as the gov takes them
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Austin, law as command
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no mechanism for enforcement addressed, no police force at the time, could maybe get the military?, reading of the riot act
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Holmes noticed
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that law as it was written and as applied were two different things
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do laws need enforcement?
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no, can be coerced and some are self enforcing
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attorney advice
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can also be law, reflects how law is interpretted and applied on the ground
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Antimony
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A contradiction between principles or conclusions that seem equally necessary and reasonable; a paradox.
Kant |
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law of war v. law of the see
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nation states over no specified law
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role of the diplomat has changed
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before - keep com pen
now-figure out whats going on |
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Diplomats can be prosecuted
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once they leave office, i.e. chilli pinochet prosecuted by spain
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Burton
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law is language, ie when is delivery of a sold good? uses lang of everyday life but the law gives new/dif meanings....lay peorson does not always understand
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Karl Olive Crona
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law is social facts to who people responded
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Inquistorially system
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not very inquisitive, ie princess Di case
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Hegel
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"the rational alone is real" Entwicklung
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o There is no political freedom without economic freedom
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Cypress
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Who is paying fr right is not always clear
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Pigou effect
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Norman Rockwell 4 freedoms in painting
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1. want 2. from fear 3. of speech 4. races
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Mill
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fredom from and freedom two, less gov intrusion the better
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Affirmative action
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equality of outcome
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American view on jurisprudence
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constitutionalism, econ freedom taken for granted, Sherman antitrust law great US contribution --> american exceptionalism
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