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20 Cards in this Set
- Front
- Back
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Jerome Frank
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against summary judgment, for getting all the facts, opposed to capital punishment, didn’t like surprises in criminal prosecutions. Says many judicial judgments are worked out backward from the conclusions tentatively formulated, He says that the facts suggest the conclusion.
Hutcheson Hunche theory- see footnote 170 pg. 881 Judge’s decisions and thinking are based on hunches so “whatever produces the judge’s hunches makes the law.” Hunch inducers: rules of law, political economic and moral biases, judges personal background, personal predjudices, custom, and the unique biases of the judge. “The judge is a “witness” to what is taking place in the courtroom. “ “every witness is a judge” |
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Posner
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Hutcheson Hunche theory- see footnote 170 pg. 881 Judge’s decisions and thinking are based on hunches so “whatever produces the judge’s hunches makes the law.” Hunch inducers: rules of law, political economic and moral biases, judges personal background, personal predjudices, custom, and the unique biases of the judge.
“The judge is a “witness” to what is taking place in the courtroom. “ “every witness is a judge” |
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Edward Levi
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Edward Levi- where in the organic life of the case is it at this point in time.
On judicial reasoning: Judge will consider many voices; ……., assumption that reason is a necessary part, the responsibility for moral judgments. |
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Dworken
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law as integrity is the proper approach.” Integrity means wholeness or honesty. 3 approaches a judge can use in deciding a case.
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Dworken
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common law is like a chain novel- principals are extrapolated from the base.
Dworkin- integrity fits the political history of a people- their aspirations their goals and that’s the way the law will grow |
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Aristotle
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to be truly human you must be a citizen who participates in the functioning of gov’t. The citizen was his focus. “the goal of the law is to create happiness for the constituents in the society.” “virtue is learning to feel pain when you hurt someone and happiness when you help someone, but virtue isn’t enough. You must have enough good wealth and good fortune to be able to live a virtuous life.”
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Aristotle
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- the all pervasive need for human beings to live in groups. Communal living allows for a division of labor. B/c of the interdependence of this we need laws.
Pleasure-Pain principal: humans must be educated into experiencing pleasure when helping someone and pain when hurting someone |
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Plato/Aristotle on pleasure and pain
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pain and pleasure are “nature’s twin fountainheads; whoso draws from the right fount, at due times, and in due measure, be it city or person, or any living creature , is happy, but he that draws w/out science, and out of due season, has the completely contrary lot.”Aristotle developed this idea into the implication that the ability to feel pleasure in the doing of virtuous acts and, likewise to avoid bad actions because of the pain they brought was the mark of a good person. Therefore, those concerned w/ the moral education of youth should devote their efforts to instilling this capacity in their charges, for Aristotle was very much of the opinion that people can be educated to feel pleasure when confronted w/ what their mentors thought were good things and to feel pain when confronted w/ what their mentors thought were bad things.
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Cicero / aristotle on the commonwealth
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Cicero- later developed the idea of the commonwealth as the coming together of men who, for their mutual advantage, agree to be governed by law. Aristotle is making a somewhat different point. It is not only advantageous or useful for a person to live in a state as a citizen; rather it is only as a citizen of a state that a human being is fully a human being. Only in a state can a human being truly become a good person in the most complete sense. – consequently, to Aristotle and Plato there was no area of human thought and conduct beyond the realm of potential state regulation
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John Locke
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– identifies certain rights in a state of nature. As Locke got older, his theory on ethics became more based on pleasure and pain. Locke was an empiricist. For him a child came into the world as a blank tablet yet possessing of faculty and reason. Through faculty and reason developed through reflection and experience one could get an understanding of the natural law in something like the way one comes to know geometry. W/out reason we are brute apes. We are lost w/out faculty as well. Reason is taken to mean the discursive faculty of the mind, which advances from things known to things unknown and argues from one thing to another in a definite and fixed order of propositions.
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John Locke
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“In the state of nature men have “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man. “ “the desire to avoid this state of war, Locke recognizes as “one great reason of men’s putting themselves in society.”
The fundamental natural law of legislature is to preserve the society |
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Lon Fuller
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his works were critical of legal realists and reflected a mounting concern for consideration of moral values in law. He criticized legal realism and analytic jurisprudence as inadequate for their failure to account for values or purposes in law. “Eunomics- his science of social ordering. Law and society as the 2 blades of a pair of scissors.
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Lon Fuller
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“8 ways to fail in making law- uses an allegory about a King named Rex. Rex erased all prior law, but couldn’t articulate his own laws so he decided to be the judge of every dispute. That didn’t work well, so he tried to write laws again, but no one could understand them.
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Oliver Wendell Holmes
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defended freedom of speech on the S.Ct., defender of the economic freedom of private citizens. he insisted that the majority of the citizenry, through their representatives in the state and national legislatures, should have a broad power to experiment with whatever measures they thought necessary to meet the social and economic problems of the country. “the 14th amendment does not enact Mr. Herbet Spender’s Social Statics.”
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Oliver Wendell Holmes
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He doubted the inate goodness of man, and had little faith in the majority.
Defined law as the predictions of what courts will do in the future. theory is the most important part of the dogma of law. “as important to the building of a house as an architect |
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Roscoe Pound
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denied that law was a fixed body of immutable rules to be applied regardless of social consequences. He insisted that legal rules were and ought to be responsive to social change. He emphasized the need for interdisciplinary activity in the law.
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Milton Friedman
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political rights cannot come w/out economic rights.
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Aristotle
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man is a political animal – meaning that man is always negotiating w/ each other for mutual benefit. Division of labor is good for production, but we will become interdependent. Though this is not necessarily a bad thing.
Democracy not perfect, but the best we can do. Democracy is the only way we can live a good life. W/out justice the state will crumble |
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St. Thomas Aquinas
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the source of natural law is “natural law is a product of human reason applied to experience.”
“God is providential, we are providential b/c we can see our needs and problems and use our intellect to address those problems The binding quality of natural law - Whats good for you and your neighbor |
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John Finnis
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gov’t should allow people to have freedom of religion. The common good is the assembling of conditions which would enable each person to pursue their own objectives.
Purpose of law is to educate people on how to act. The goal of criminal law is not punishment, but the common good. All are taught that socially harmful acts will be punished not encouraged. |
