Term
| Why is the rule of law important when examining a legal system? |
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Definition
| The rule of law is seen as the 'golden ticket' to legitimacy. it is one of the chief factors that investors, economics, and international bodies look at when considering the credibility of a government. |
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Term
| How does Fuller define the law? |
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Definition
| fuller defines law as the enterprise of subjecting human conduct to the government of rules. essentially, rules/laws represent the governance of regularity |
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Term
| Where does the idea of the rule of law originate? |
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Definition
| the idea of the rule of law originates in the greeks with Solon in Athens in the 6th and 7th century BC |
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Term
| What does Solon say are the three attributes of law? |
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Definition
Solon claims the three attributes of law to to be
1. that it is written
2. that it is equally applied
3. that government officials also must comply to the law |
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Term
| why is the rule of law appealing? (five reasons) |
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Definition
1. the rule of law is based on the idea objectivity and the laws of society being objective and open to all members which creates a feeling of equality, nobility, and consistency
2. ensures equal treatment
3. expresses a desire for fairness |
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Term
| what are the 8 formal conditions of the rule of the law? |
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Definition
1. generality
2. promulgation
3. no retroactive rules
4. clarity
5. no contradictory rules
6. stability
8 consistant application |
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Term
| what are the conditions of the rule of law? |
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Definition
| the formal conditions are 8 conditions that must be present in a legal system in order for the system to constitute the rule of law. these conditions are how the laws should be structured, not what they should be. |
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Term
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Definition
| laws are general and intended to have a wide scope and range of application because they are deliberately intended to govern a multitude of specific cases |
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Term
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Definition
| laws are public and made available to everybody. they must be broadly broadcasted and well known so that everyone may follow them |
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Term
| no retroactive law (expo facto law) |
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Definition
| a law punishing you should not be passed after the action has been committed |
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Term
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Definition
| the law should be precise and unambiguous. what the law requires should be fairly clear and understood so to better enhance public's knowledge of it and ability to follow it |
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Term
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Definition
| laws should be consistent and should demand conflicting behavior |
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Term
| no impossible prescriptions |
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Definition
| the law fails to guide people if it sets out impossible prescriptions |
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Term
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Definition
| laws should be relatively stable and not change frequently, drastically, or unpredictably unless triggered by social need |
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Term
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Definition
| basic equality in like treatment of cases, for the rule of law to be applied it must be applied equally |
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Term
| what other conditions are often included besides the formal conditions of rule of law? |
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Definition
1. trial by jury
2. independent judiciary
3. supremacy of law |
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Term
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Definition
| the rule of man is ruling with the arbitrary passions of men, deciding to rule yourself by yourself is to rule by instinct and passion— regardless of your action's virtue, effectiveness, necessity, virtue, etc. |
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Term
| how did the founding fathers try to protect against the rule of man? |
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Definition
| the founding fathers intended to use checks and balances to guard against the rule of men |
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Term
| are all laws created by men the rule of men? |
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Definition
| no, the rule of men is treating an established law as a suggestion and choosing to act in compliance or disobedience on a whim without necessarily having to answer for one's actions instead of adhering strictly to the established standard as practiced in the rule of law. |
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Term
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Definition
| the rule of law makes society, regardless of its values or principles, more effective in trying to accomplish it's goals |
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Term
| what is Hobb's rejection of rule of law? |
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Definition
| Hobbs argues that law has to be written, interpreted, and implemented by humans so it is men who rule law, not the other way around. |
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Term
| why did Locke not advocate any protections of civil rights? |
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Definition
| Locke's society was based off the idea of property and thus he only considered property owners to be full members of society. |
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Term
| How does montesquieu define liberty? |
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Definition
| Montesquieu defines liberty as "a right of doing whatever the laws permit," and this is only attainable if people are secure from tyranny. |
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Term
| How did Montesquieu perceive to prevent governmental abuse of power? |
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Definition
| Montesquieu claimed that that the separation of powers, particularly an independent judiciary, was the best barrier against governmental actions. |
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Term
| Why did Montesquieu stress an independent judiciary? |
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Definition
| Montesquieu stressed an independent judiciary not to preserve its own legal power, but to prevent the executive from ruling by whim. |
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Term
| What were Montesquieu's revolutionary declarations: |
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Definition
1. formulation of the separation of powers
2. emphasis placed on the judiciary to preserve the rule of law
3. insight that there is a complementary culture surrounding the law
4. societies have liberty to pursue their ends, and in creating a system that cohesively allows all members to do this, regardless of individual motives, every body wins (English commerce) |
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Term
| What were the founder's worried about forming a democracy? |
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Definition
| Democracies are by definition 'self-ruleing' systems so the rule of man prevails and in that there exists a risk of domination by some over others due to democracy's incompatibility with personal security. |
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Term
| What were the three mechanisms devised by the founders to curb the power of the rule of men in democracies? |
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Definition
1. representative rather than direct democracy should be enacted in order to curb the influence of the temporary passions
2. there should be a vertical separation of the federal gov and state gov'ts, enabling the government to be wholly captured by any one group
3. judicial review |
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Term
| Why did Hamilton stress the importance of judicial review? |
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Definition
| Hamilton argued that the Constitution was "a fundamental law" and if there were no provisions to remove contrary laws which could be more based on the passions of men, ordinary legislation could trample our primary laws. |
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Term
| What is the relationship between the legal profession and the rule of law? |
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Definition
| the rule of law is not able to function without members of the legal profession, so it is essentially that these actors are committed to the values of legality otherwise they can easily undermine the rule of law. |
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Term
| Formal versions of the rule of law: |
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Definition
1. rule by law
2. formal legality
3. democracy + legality |
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Term
| substantive versions of the rule of law: |
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Definition
1. individual rights
2. right of dignity and/or justice
3. social welfare |
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Term
| what is the difference between substantive and formal interpretations of the rule of law? |
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Definition
| formal versions of the rule of law are concerned with how a law was created and implemented, but not what said law is implementing. substantive versions agree that the rule of law includes the formal conditions, but they also claim that certain rights are based on/ derived from the rule of law and these rights are used as the foundation for distinguishing between "good laws" |
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Term
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Definition
| the ideal that law is the way a state conducts affairs, and it's provisions may not necessarily encompass the state itself, which by definition does not make it exactly a form of rule of law |
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Term
| why is formal legality considered empty or dangerous? |
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Definition
| formal legality recognizes law's function as guiding the behavior of society and thus providing individuals with a guideline of how to plan their activities. law is recognized as something that meets the conditions of rule of law, but its moral content is not of concern, nor is the way in which the law came to be. |
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Term
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Definition
| freedom to do what the law permits |
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Term
| what makes the formal legality appealing universally? |
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Definition
| because formal legality is fairly politically neutral and is strictly concerned only with the procedural elements and form of the law with no concern of its substantive elements, it is amenable and recognized throughout the world. |
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Term
| how is the rule of law, simply in itself, a moral good? |
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Definition
| the rule of law is a moral good simply by itself because it enhances an individuals autonomy, as well as preventing governments from acting an entirely arbitrary fashion. |
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Term
| what is an argument that the formal rule of law is morally neutral? |
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Definition
| Raz's knife metaphor exemplifies that the rule of law is an instrument whose execution is determined by it's inherent virtues. the morality of law is a function of the uses to which it is put. |
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Term
| how does formal legality differ from the historical rule of law tradition? |
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Definition
| historically, the understanding that there are certain things the could not do in order to place restraint of the sovereign to prevent tyranny was an aspect of the rule of law, but the formal legality version discarded the is notion. |
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Term
| How are capitalism, the rule of law, and liberalism connected? |
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Definition
| Capitalism, the rule of law, and liberalism all depend on the predictability of rule following. |
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Term
| Democracy and formal rule of law |
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Definition
| adding a democratic element to the rule of law does not add a morality criterion, it simply adds a procedure requirement on how to determine the content of law. |
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Term
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Definition
| the notion advocated by Athenian democrats, Rousseau, and Kant that freedom is to live under laws of one's own making. |
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Term
| what are the pros and cons of including democracy in formal legality? |
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Definition
| if a democracy lacks formal legality, democracy can be circumvented by officials, but if if formal legality lacks democracy, it loses legitimacy. |
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Term
| how do the lack of faith in natural laws as well as moral pluralism effect the way laws created in a democratic system with formal legality are judged as good or bad? |
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Definition
| in the absence of higher standards to judge the moral rightness of the law, the law is good if it is made pursuant to good procedures. |
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Term
| why is unanimous consent impracticable? |
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Definition
| in a democratic society, the consent of all citizens only reflects what they would agree to consistent with reason rather than their own individual opinions. furthermore, unanimous requirements allow individuals to hold the group hostage |
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Term
| how can democratic formal legality create evil laws |
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Definition
| evil laws can be created in this system when one group overpowers the other and utilizes the laws to advance its particular agenda. |
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