Term
| What do MPEK mean when talking about politics? In other words, what function does law serve? |
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Definition
| Politics means and the function of law is the process concerned with authoritative determination of a society’s goals and ideals; mobilization of its resources to achieve those goals and ideals and distribution of rights, duties, costs, benefits, rewards, and punishments among members of that society. |
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Term
| What is a civil law system? What is a common law system? Where do each come from? Who is primarily responsible for the creation of law under each system? Is the American system more common law or civil law? |
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Definition
2. Civil Law System: Everything is written down by the lawmakers (legislators do most of the work here). There is no discretion for judges(no interpretation) Judges have the right answers. Idea: Math
Common Law: Judge made law. Over time the law accumulates based on judicial decisions previously made. Quite a bit of discretion here. No constitution game- no source of law other than judicial decisions made over time. Idea: Factual
The American System is a mix of both civil and common law but we are a little bit more common law, we have both though. |
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Term
| What are the differences between natural law and legal positivism? What questions are each concerned with answering? how are natural law or legal positivism connected to civil or common law systems? |
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Definition
3. Natural Law means that a putative law’s validity depends not merely on lawmakers’ having followed correct procedures but also on the inherent justice of the law. Questions of right and wrong are something separate from the procedures of the law.
Legal positivsm . Law is enacted, through establish procedures, by whoever has the authority in a particualr political system. Laws could possibly be unjust but morality is apart form the law. Citizens have the obligation to obey the law even if the law is immoral.
The questions they are concerned with answering are, whthere moral judgements have universal validity, or whether they are determined , at worst, through idiosyncratic or selfish motives or, at best, according to values relative to time, space, and culture
legal positivism is connected to civil law because in civil law the legislator decides what will be the laws and the judges merely apply the law
For the most part common law systems are at times poistivistic and at times natural rights and natural law based. |
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| Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections. |
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| 5. Holmes Bad Man theory of law is that the puspose of the law should be to stop bad men from committing crimes by developing strict punihsments for crimes. Laws develop trhough ex[erience, it developes through the felt neccessitites of the time the prevelant moral and political theories, intiutions of public policy, even preduices of judges. Laws is not developed by logic nor by syllogism, or just rationally thinking about what laws there ought to be |
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| 6. sociological jurisprudence is the idea that the law should be shaped and developed by information in the social sciences. Take into account peoples cultures and background sin deciding law |
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7. Blackstone’s declaratory theory of law is that judges are Oracles: they divine the right answers. There is no discretion and he believes all judges should make the same decision. They consult a divine understanding of what the law is and give us truth.
Blackstone’s declaratory theory of law is that judges are Oracles: they divine the right answers. There is no discretion and he believes all judges should make the same decision. They consult a divine understanding of what the law is and give us truth.
Declaratory Theory of Law– simply declare/expound on what the law states
b. Expound does not equal make the law
c. judges are living oracles
d. Judges wree depositories of law– no discretion in judicial decision making– only apply the law
e. Do not make law– any judge will make the same desicion |
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| . According to hamilton judges lack a police force. It does not have power over money (like congress) nor does it have power by the sword (executive branch). It has neither force nor will. It only has judgements |
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| 9. Tocqueville thought that judicial review protected liberty because the judges were free from influence from the legistlature in that they could only look at cases that were brought to them and that they could strike down laws that were against the constitution. This was a unique feature of the american government |
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| 10. Cardozo characterizes judicial desicion making as more of an art. When there are hard cases that need to be decided he uses his intuition to settle the dispute |
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