Philosophy of Law: Terms I NEED TO KNOW no matter what
Rule of Law
What’s happening, how the laws are being made and used, and enforcing the laws. Contrasts with leaders' use of law.
e.g: Invoking emergency acts to gain access to more power (violation of the Rule of Law)
Legitimacy (in context of law)
Justification for why laws or authority should be accepted and obeyed, based on morality or proper legal procedures.
Overlap Thesis
Idea that there is a necessary overlap between law and morality (law cannot exist without morality)
Separability Thesis
Law and morality are separate (immoral laws CAN exist)
Aquinas' Theory (Natural Law)
Law is derived from morality and are created for the common good, and 'immoral' laws aren't valid.
Legal Positivism (and who falls under it)
It is the idea that law is a social construct; Austin and Hart fall under it
Austin's Theory
Classical positivism, thinks that law stems from commands which oblige people to follow the law (fear of punishment)
Hart's Theory
Obligation comes first when it comes to law, not being threatened with commands
Fuller's 8 Failures
1. Failure to achieve rules
2. Failure to publicize (promulgate)
3. Abuse retroactive legislation
4. Failure to make rules understandable
5. Enactment of contradictory rules
6. Enactment of rules that require conduct beyond the powers of the affected party
7. Introducing frequent changes in rules that subject cannot orient his action by them
8. Failure of congruence between the rules as announced and their actual administration
8 Demands for Legal Morality
1. Rules have to be general
2. Rules must be known
3. Restricted retroactive rules
4. Clarity in meaning
5. Logical consistency
6. Demand what's possible
7. Stable/consistent
8. Applied as announced
Fuller's Theory
Content of the law itself doesn't have to be moral, but the people(s) ruling have to be moral
Dworkin Interpretivism
Law is not just a set of rules
Judicial Reasoning with Levi and Hart
How we make decisions in a legal system
Levi: all legal reasoning is reasoning by example
Hart: also less skeptical
Critical Race Theory
connection between race, racism, and the law
Precedent vs Legislation
Precedent: guidance is indeterminate, common sense and understanding of social values and principles will help, but not entirely
Legislation: less indeterminate, always open-textured, or ambiguous to some degree
Leftist Theory (Marxism) Feminists argue
Political power is embodied by state in capitalist state. State is a tool of dominance and oppression; revolution only way out
The Liberal State
state seen as emanating power, aim is to respect pluralism. State might be seen as a neutral tool.
MacKinnon
Feminism, women in a society dominated by male ideals etc
Paidec vs Imperial Models
Paidec: World-creating, meaning and understanding, needs education, commitment, no need for coercion. e.g: Amish Communities
Imperial: World-maintaining, no need to be taught or understood if effective, enforced by institution. e.g: US/Canada
Racialism
Theoretical accounts of racial power that explain legal and political decisions which are adverse to people of colour as mere reflections of underlying white interest
Institutional/Systemic Racism
Normalized practices and policies that disadvantage members of certain racial groups. Processes, practices, principles, cultures, etc. Possible in the absence of racist individuals. Can be overt or covert.
Legal Pluralism
Multiple interacting legal systems within one geographical area. State law = not only source of authority.
Negative mark
Ruler doesn't answer to any supreme authority
Imperfect Law
Issued as a command, but don’t have punishments attached to them (do not carry promise of a sanction for non-compliance)
Jeremy Bentham
Appealing to morality = private opinion in disguise
Natural Law
Aquinas calls it natural law, we call it morality, because he believes the law is based on the nature of human beings (we’re rational, intelligent, social animals), avoiding vices. Aquinas thinks it’s objective and universal for all people
Human Law
Laws made by humans, must be derived from Natural Law, because Human Laws must be derived by ethics