Term
| Socrates in Crito - Injustice to Who? |
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Definition
An injustice ot the Laws and the State.
The State as a parent/guardian. By accepting the State's support and staying in the State, you have agreed to abide by its laws.
If escapes he is neither obeying nor trying to persuade. |
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Term
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Definition
Fail to acheive rules at all - ad hoc decisions
Fail to make laws understandable
Fail to publicize
Abuse of retroactive legislation
Frequent changes
Contradictory rules
Failure of congruence between rules and administration
Rules require impossible conduct |
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Term
| Aquinas Definition of Law - 4 parts |
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Definition
| Is a certain ordinance of reason// for the common good,// made by him who has care of the community //and is promulgated. |
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Term
| Austin - duty to follow law |
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Definition
Command Theory
-with command comes correlative idea of duty - a duty is generated by threat of harm
-law is law because commanded, duty to follow stems from threat of evil it carries |
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Term
| Austin - Superiority equates to sovereignty? |
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Definition
-When bulk of society are in a habit of obedience or submission to a determinate common superior
-That superior (individual or body) is not in the habit of obedience to a determinate human superior |
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Term
| Hart - Rule of Recognition, why is it essential? |
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Definition
Remedies defect of uncertainty, by establishing a rule concerning what features are required for primary rules to be authoritative. Conclusively identifies the rules.
Helps solve legal validity - ultimate criterion, but not valid or invalid itself. A statement of fact, and more precisely, a statement of social fact. |
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Term
| Mark Murphy - Weak Thesis |
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Definition
The natural law thesis is a thesis about kinds - laws are the kinds of things that are reasonable guides to action, and if they fail to do this, they are defective laws - function
-Duck example |
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Term
| Dworkin - what are legal claims (propositions of law and what makes them true?) |
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Definition
Legal claims are interpretive judgments - they interpret contemporary legal practice seen as an unfolding narrative. Law contains not only content of past decisions but scheme of principles to justify them.
True if they figure in, or follow from, the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of community's legal practice |
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Term
Frank - Legal Realism
What is the law?
What does client mean and what does the answer amount to? |
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Definition
The law, for common person, with respect to any particular facts, is a decision of a court with respect to those facts so far as that decisionaffects that particular person. The law doesn't exist until that decision.
Law is either:
Actual - specific past decision
Probably - a guess as to specific future decisions |
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Term
| Ripstein- Alternative to "Harm Principle?" |
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Definition
Sovereginty Principle - Only legit restrictions on conduct are those that secure the mutal independence of free person from each other.
Equal freedom demands that no person use her powers to deprive someone else of hers, or use her powers without permission.
Self harm, voluntarily undertaken harm, and fair contest are not wrong under this, because there is no domination. |
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Term
| Waldron - Connection between morality (justice) and the law? |
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Definition
| The law promises a concern for, or an interest in, justice (though not substantive justice). Substantive justice is disagreed about, so it cannot promise that; however, it promises to be concerned with justice and its commitment to formal justice (consistency, generalization) conveys that promise |
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Term
| Mill - what is wrong with Temperance laws? |
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Definition
Based on "social rights" which are absurd because everyone's standard is different and there would be no liberty for anyone at all.
Prohibition of sale of alcohol, is in fact, prohibition of its use. When a "trade law" has the effect of prohibiting a commodity, it is actually a prohibition law in disguise. |
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Term
| Hart - chief objection and one reason for the objection |
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Definition
| Objects to the command theory. Problems include: government as gunman writ large, changing legislative body cannot be perceived as a group of people that are habitually obeyed ("bulk" obeying the "bulk", in essence obeying themselves), and nothing legislators do makes law unless they comply with fundamental rules of law making. |
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Term
| Dworkin - What counts as "paternalism?" |
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Definition
Interference with a person's liberty for his own good.
"Pure" and "Impure" paternalism.
Pure - class of persons whose freedom is restricted is identical with the class of persons whose benefit is intended to be promoted by such restictions.
Impure - tries to protect the welfare of a class of persons, we find that the only way to do so will involve restricting the freedom of other persons besides those who are benefitted, ie. professional licensing |
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