Philospy Of Law

Front 1

What are the 4 sources of law?

Back 1

legislative law, Constitutional Law, Judicial law, & Administrative Law

Front 2

What is legislative law(Statutory law)?

Back 2

enactments of an elected body. e.g., Ordinances

Front 3

What is Judicial Law?

Back 3

The process of Adjudication- process where courts apply statutes, provisions to facts of a particular case.

Front 4

What is Case Law/Common Law?

Back 4

It is a judge-made law.

Front 5

Principle of Case law/Common law:

Back 5

process of following the points of law established by other courts in previous cases. Process known as Precedent.

Front 6

What is Precedent/Steri Decisis?

Back 6

this process refers to the authority of a prior ruling in a similar case/ Decisions made using previous cases.

Front 7

Constitutional Law:

Back 7

Hybrid of Legislative and Judicial law.

Front 8

Judicial Review:

Back 8

The power of the Courts to invalidate enactments that violate provisions of a constitution.

Front 9

Administrative Law:

Back 9

Comprises all of the regulations, standards, and decisions of AGENCIES created by congress & executive branch. Agencies have the force of law. E.g., DEA

Front 10

What are the 2 types of laws?

Back 10

Substantive Law & Procedural Law.

Front 11

What is Substantive Law?

Back 11

Civil & Criminal Law.

Front 12

Civil Law:

Back 12

regarding private disputes between parties over property, business transactions, accidents &injuries, etc...
Parties refer to individual person, small company or multinational corporations. Simply means the entity involved in Non-Governmental. Crimes against other people or corporations.

Front 13

Criminal Law:

Back 13

Regarding wrongs against the State. Ex: Murder, robbery.
"Wronged us all" harming society as a whole

Front 14

Procedural:

Back 14

regulates the process of resolving a civil lawsuit or criminal case.

Front 15

Civil Procedure:

Back 15

pleadings, discover evidence, pre trial, if needed then goes to trial

Front 16

Criminal Procedure:

Back 16

Preliminary Hearing, Indictment, Arraignment, Trial

Front 17

Role of attorney:

Back 17

One who zealously asserts the client's position under the rules of the adversary system.

Front 18

Adversary System:

Back 18

based on the concept of Justice that assumes that the truth is most effectively discovered and just best obtained by trials in which two opponents compete with each other before an impartial court, testing each others merits.

Front 19

What are the 2 Legal system Structures:

Back 19

Federal and State

Front 20

What are the 3 levels of Federal Courts?

Back 20

US District Courts, US Circuit Court of Appeals, US Supreme Court.

Front 21

What is the 4 Purposes of Law?

Back 21

1)Protect Property and lives.
2) Protect people from Gov't
3) Deter socially unacceptable behavior(Walking around nude)
4) Maintain Order.

Front 22

3 Branches of Philosophy:

Back 22

Metaphysics, Epistemology, & Ethics

Front 23

Metaphysics:

Back 23

The study of the nature of Reality.

Front 24

Epistemology:

Back 24

The theory/study of knowledge.

Front 25

Ethics:

Back 25

Moral Philosophy.

Front 26

What is Utilitarianism/Consequentialism?

Back 26

The morally right act that produces the best consequences for all affected. Evaluate the morality of that act ONLY by focusing on its Consequences.(Act for the Greater good)

Front 27

Utility=

Back 27

pleasure/happiness.

Front 28

Who is Jeremy Bentham?

Back 28

He regarded utilitarianism as a blueprint for legislation and criticized the British System as being outdated and excessively brutal.

Front 29

John Stuart Mill:

Back 29

Defined Harm Principle. Wrote "On Liberty." He believed that as long as an act was not hurting anyone besides the actor(s) it should remain private. He focused more on the individual and their individual right.

Front 30

What is the Principle of Utility?

Back 30

Always act to bring about the greatest net good/happiness for all of those affected by your actions.

Front 31

Hedonism:

Back 31

Theory that holds that pleasure is the only thing worth having just for what it is.

Front 32

Rule of Utilitarianism:

Back 32

set standards to abide by in all situations.

Front 33

Problems with Utilitarianism:

Back 33

1) Unfair to some individuals- not deserving of bad treatment(kid suffering in Omelas).
2) Cannot measure nor define Happiness(Blacksmith)
3) Asks too much of us(Self-Sacrifice: The boat)
4) No attention to individual happiness, only group(how do we MEASURE pleasure?)

Front 34

Extrinsic Vs. Intrinsic

Back 34

Extrinsic is money because it has value to everyone.
Intrinsic could be trust or anything you enjoy.
BUT, education or knowledge can have both values.

Front 35

What is Deontology?

Back 35

the morally correct action is action done from Duty. Duty to respect each other because we are all rational human beings. The 'right' thing to do no matter what the consequence.

Front 36

What are Duty Ethics?

Back 36

the morally correct actions done from duty, as defined by Categorical Imperative.

Front 37

Categorical Imperatives:
1st formulation
2nd formulation

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1) Act upon maxim(principle of my willing) you can rationally will all to be universal law (Act only in ways in which you can imagine everyone acting.)
2) Always act to treat others as an Ends and never as a Means Alone.

Front 38

Autonomy:

Back 38

Ability to take charge of one's own life and accordance with valid moral principles, rather than being led around by desires.

Front 39

Kants Ethic:

Back 39

act morally is to act on principle: do the right thing because it is Right. Believed in Categorical Imperatives.

Front 40

Problems with Kantian Ethics:

Back 40

1) How to identify the maxim(I will kill a child.. if it saves 5 people)
2) Too rigid, acting on principle may not be the only morally valuable action.
3) Conflicts of Duty (physician telling sex partner about AIDS)

Front 41

What is Maxim?

Back 41

Principle of My willing.

Front 42

Harm Principle:

Back 42

A law should only prevent one person from harming another person. Or the only reason a society can limit a persons freedom is to prevent harm to others.

Front 43

Paternalism:

Back 43

Making laws to protect yourself.
Not associated with Mill but says people should choose how they want to treat themselves.

Front 44

How does Mill define harm?

Back 44

Acting or not acting to cause injury to another.

Front 45

should everything that harms people be illegal?

Back 45

No, because not everything is cost beneficial to enter into the legal system.

Front 46

"On Liberty" By John Stuart Mills:

Back 46

This text addresses the nature and limits of the power that can be legitimately exercised over an individual.

Front 47

"The Enforcement of Morals" By Patrick Devlin:

Back 47

1) He believed that if an individual did an act that went against society's morality then they should be punished even if it was a private act (Homosexuals).
2) He thought that laws should intervene only when society won't tolerate certain behavior
3) Argued that popular morality should influence lawmaking
4) He believes that even private acts should be subject to scrutiny if they were held to be morally unacceptable by the "reasonable man" in order to preserve the moral fabric of society
5) Worried that an attack on societies morality would threaten society with disintegration, which allowed him to reason that these acts, even private, should not be free from public scrutiny
6)He believed that if an act, private or not, went against society's common morality, it should be scrutinized so the society does not become disintegrated
7) He focused on the majority rule and the whole society

Front 48

"The Enforcement of Morals" By Patrick Devlin ISSUES:

Back 48

SOME societies should disintegrate(Nazis).
Societies can continue to exist even if societies shift morals or do not have a shared morality(Jim Crow)
There can never be a single shared morality in a society.

Front 49

Patrick Devlins arguments:

Back 49

1) Society should be protected from disintegration.
2) a shared morality is necessary to protect society.
3) a society should enforce a shared morality

Front 50

Harts Objections to Devlin
"Law, Liberty, and Morality." By Hart

Back 50

1) There is a moderate and extreme way to view the threat of immorality to society.
2) Society NOT equal to its morality at a given time.
3) Devlin assumes all morality is a seamless web.
4) Devlin says it Weakens society.

Front 51

A Priori=

Back 51

True before we investigate, before the fact.

Front 52

1) Cohen Vs. California(Harlan)
2) Harlan's Arguments:

Back 52

1) Wore a jacket that says, 'Fuck the Draft.' Freedom of Expression.
2) i. California cannot censor their citizens in order to make a "civil"
ii. Knowing where to draw the line between harmless emotion and vulgarity can be difficult.
iii. people bring passion politics and vulgarity is simply a side effect of a free exchange of no matter how radical they may be.

Front 53

Restrictions on Freedom of Speech:

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Ex: Yelling FIRE in a theater.
Obscenity, offensiveness, harm to innocent.
Libel, Slander, Threats, Sexual Harassment.

Front 54

Michael A. Newdow V. United States of America

Back 54

The Rehnquist's opinion asserts the term "under God" doesn't or establish religion but it actually asserts that the term acknowledges the nation's religious heritage, the role of religion for the founding Fathers of America. The pledge is a secular act, rather than an act of religion or expression of religious devotion.

Front 55

Questions of Newdow standing in court:

Back 55

Procedural Law Justice Thomas, asserts that finding the Pledge unconstitutional is an unjustifiavle expansion of the meaning of "Coercion" as that term is used in legal precedent: to prohibit students in a "fair and real sense" by "subtle and indirect public and pressure".

Front 56

"Letter From a Birmingham Jail" By: Martin Luther King Jr.

Back 56

Civil disobedience: the willful violation of a law under taken for the purpose of social or political protest..
First, try to negotiate and make agreements. But, when you can't, something else must be done.
Civil disobedience makes people feel uncomfortable, creates disturbance but also gains attention.

Front 57

"Unjust laws are no laws at all"

Back 57

Martin Luther King Jr.'s Statement.

Front 58

Just Law:

Back 58

In accordance with natural law/ moral law- from god

Front 59

Unjust Law:

Back 59

A law that's out of harmony with the moral code.

Front 60

Procedural Elements of Conviction and Punishment:

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1. Defendant's(D) allegedly wrongful conduct is detected or is confessed.
2.D apprehended by, or otherwise comes into the custody of authorities.
3. D is indicted and arraigned, with charges formally presented and a plea entered.
4. D pleads guilty and is sentenced, OR D's plea results in trial.
5. D is tried and convicted.
6. D is sentenced by the judge.
7. D's sentence is carried out.

Front 61

Substantive Elements of a Crime:

Back 61

1. A valid, publicly known, and non-retroactive law prohibits a given act(A).
2. D committed A.
3. D committed A with the state of mind defined by the law Prohibiting A.
4. D has neither a justification nor an excuse for committing A.

Front 62

Primarily Statutory:
Public:

Back 62

use statutes instead of common laws.
Actions against society.

Front 63

Required elements of a Crime:

Back 63

i. Must be a law against the Action(A).
ii. D Commits A(actus reus)
iii. D committed A with the state of mind defined by the law (mens rea)
iv. D has neither an excuse nor justification.

Front 64

Actus Reus=

Back 64

Act of Wrong doing

Front 65

Mens Rea=

Back 65

Guilty Mind.

Front 66

People V. Dlugash

Back 66

Guy shot a person after he may have been dead.
If a person has intent then they can be guilty.
Dlugash=Innocent

Front 67

Kadish

Back 67

Modern approach to crime.
Emphasis is on range of Actor's control.
Should be punished even if you attempt but are unsuccessful in Committing Crime.