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61 Cards in this Set
- Front
- Back
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Descriptive philosophy of law
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Describing the law as it really is. Most murderers spend only 10-15 years in prison.
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Normative philosophy of law
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How the law should be.
i.e. same-sex marriage should be permitted. |
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The relationship of morallity and legallity
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To be moral is not always to be lawful and vice-versa.
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Utilitarianism
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To find an answer to what is ethical by asking if this action (law) provides the greatest happiness. The end justifies the means.
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Contract Argument
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The legitimacy of following the law for the reason we have obligated ourselves to the contract of that society.
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Due Process
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To deliberate and punish fairly in the court of law.
(Criminal) Beyond a reasonable doubt (Civil) By the preponderance of evidence |
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Retribution
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Harm done to one, not for emotional revenge though rather to even the distribution of evil
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The law and the breaking of the law to enforce the law
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Law: Must wear seat belt
Breaking the law to enforce the law: Pulling over only teens without a seat belt |
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Libertarianism, by Henry Thoreau
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To sever the self from the gov't
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Prescriptive Laws
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Laws that indicate the way things should be
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Borderline cases
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Laws that have traits of law and rules, that lead us to blieve it may/may not be a law
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Existence laws
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Identifying an issue: rape, going to church, lieing, and determining if they are really or really no laws. Also to identify laws that have no legal standing as of yet.
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Precedents
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Previous rulings used to determine the outcome of today's cases
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Natural law theory
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To verify a law by its relationship to morality; as it must pass the "morality test"
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Malum in se
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Wrong in it of itself
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Malin prohibitum
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Wrong due to artificial restrictions
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positive law
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A law taken as it has been defined by human law.
"murder is murder" |
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command theory of law
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Laws as commands, no options
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Normative Jurisprudence
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Criticism of the law as it "should be"
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Analytical Jurisprudence
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Law as it is
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Punitive sanctions
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To punish or harm for the law
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Privative sanctions
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To seize rights for the law
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Law, in terms of pedigree
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The law is as it has been defined or ruled as
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Tacit command
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For a successor to enforce the rules of his/her predecessor
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Legal obstacle
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Laws used to prevent actions that may disrupt order
i.e. speeding |
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Secondary rules (3)
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Recognition: One to understand rules by demonstration of society
Change: To modify these rules Adjudication: the ruling on the rules |
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Legal Realism**
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Law is not logic. Law is not a set of rules that may be applied to cases as do rules apply to chess games, Law is the interpretation of law made by judges.
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The Right Thesis
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Developed by Dworkin, to suggest the law protects the rights of principles more so the rights of people.
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Kantianism (deontology)
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The ends do not justify the means. One person may not be killed against their will to save a nation.
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Critical Morality
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Evolution of beliefs into something greater.
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Positive Morality
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A belief held by a smaller group of people.
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Content Theory Agument
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Morality must have regard for a a special subject. exempli gratia murder has regard for human life but not animals.
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Formalism
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Morality must possess:
1.Prescriptiveness 2.Universality 3.Overriding |
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Legal Positivism
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We may define law without morality
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Traditional Natural Law Theory
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Morality must exist for a law to stand.
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Jurisprudence
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Philosophy of Law
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Ronald Dworkin
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Legal cases illuminating philosophy and vice-versa,legal history, and moral appeal
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John Austin
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Legal Positivism, normative and analytical jurisprudence, laws as commands, laws as pedigree
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H.L.A. Hart
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Law as social control,distinction between descriptive and prescriptive laws, to unpuzzle borderline cases, laws as obligated to as opposed to obliged
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Immanuel Kant
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Deonotlogy, never use a person as a mere means, categorical imperative
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Matt Altman
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Kant on same sex marriage
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Plato/Socrates
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the importance of the few wise law makers, the duty to the city,
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Henry Thoreau
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the right to disobey, libertarianism,
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Eric Blumenson & Eva Nilsen
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legalize marijuana,non-consequential-ism,
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Incompatibilism
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The belief that free will and determinism are incompatible ( person can manipulate a series of cause and effects)
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Compatibilism
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Free will and determinism are compatible. The effects of today's are explained in the causes of yesterday
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Determinism
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1.Laws of nature are created either by god or another mystic being 2.To understand the description of the world at one point, will 3 explain occurrences in all points
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Moral Responsibility
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Relationship to ones actions that make it appropriate to punish a person for
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Mixed Justification
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Just punishment=1.deserved 2.The benefits of society will outweigh the punishment itself
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Tripartite Distinction
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1.Proprty rule (right to property) 2. Liability Rule (Right to exist in a certain place and not be injured, if injured, injurer is liable)
3. Inalienability Rule, the right no to give up rights such as life,liberty,and happiness) |
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Mens rea
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To have the guilty mind when committing a crime
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Consequential-ism
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You may punish 1 person to protect the whole
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Non-Consequential-ism
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You cannot punish 1 to protect the whole
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Paternalism
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To treat a rational being as a child
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Special Deterrence
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To prevent one person from committing a certain act
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General Deterrence
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To prevent the general population from committing a certain act
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Dr. Vilhauer on Free Will
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1. If it can be doubted that some has freewill then it is unjust to do serious harm to the person
2. If one thinks that the free will debate is philosophically valuable then one must accept its doubt to exist Therefore, If one thinks that the free will debate is PV then one must doubt the existence of free Will |
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How to justify punishment I
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The degree of punishment must...
a. not be excessive b. result of due process |
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How to justify punishment II
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We mustn't punish unless...
a. a person has truly committed crime b. Result of due process |
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Compatible-ist
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Free will and determinism may both exist simultaneously
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Incompatible-ist
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only free will or determinism may exist, not both
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