JURI-300-01 Mid-Term
What are some applications of Kelsen's theory of law and the Grundnorm?
A 'pure' theory of law which would avoid reductionism
Lex iniusta non est lex?
An unjust law is no law at all
Explain what Hobbes' statement "Life is solitary, poor, nasty, brutish, and short" has to do with law?
At the time, the state of mankind was not good. It was man v man everyday.
What is the foundation of Positive Law? What is the origin? How do we know that it is authoritative?
Augustus Comte. Law and morality. Codification of laws = authoritative.
Grundnorm and differences with Rule of Recognition?
Basics norms vs validity of legal system. Point of origin for law vs what counts as law.
Bentham v Dworkin
Bentham says that law is an expression of politcal facts. Dworkin says that it is integrated with morality.
What does natural law have to do with revelation?
By studying and considering the natural law in our hearts, we can learn much about the nature of God.
Who said "True law is right reason in agreement with nature?"
Cicero
Over what do we quarrel according the Hobbes?
Competition for limited supplies of material possessions, distrust of one another, and glory insofar as people remain hostile to preserve their reputation
Who was Blackstone? What did he do? What did Bentham say about him?
Englishman. He writes how the natural law doctrine relates to the god given principles of English law. Bentham criticized his ideas
What are the four categories of Aquinas's law?
Eternal, Natural, Divine, and Humanely Posited Law
What did Bentham have to do with the American system of government?
He wanted to establish a code of law and social reforms for utilitarianism.
What was Kant's contribution to the evolution of jurisprudence?
Helped formulate deontology. He argued that any rule we follow must be able to be universally applied.
Hobbes v Austin
Hobbes says that natural law teaches us self preservation. Austin says that law is primarily commands or imperatives.
What and who are the "third way" in law?
Hobbes wrote the third way in law. Such agreements need to be honored.
Positive Law
Human-made laws that oblige or specify an action.
What did Grotius mean when he said "even God cannot cause 2x2 not to equal 4
If an omnipotent being is able to perform any action, then it should be able to create a task that it is unable to perform. Contradiction.
What was Locke's major complaint about life before the social contract?
It was a total bliss. Society forfeited some of their freedom.
Who resurrected Aquinas's work on law and modernized it?
John Finnis
Hard Natural Law
Law that is self-evident and based upon factual statements about human nature.
Soft Natural Law
Law that takes into account human choices, values, and morals.
Locke v Fuller
Locke says that the social contract made man forfeit some freedoms. Fuller says that natural law has an inner morality.
What were the differences among the earliest civilizations in their concepts of law?
Mesopotomia= Hammurabi's Code of Law, Egypt= Pharoh's Word, China= Confucius Golden Rule Legalism
Can we say the Spelunkean Explorers were wrong? Was the case decided properly? Who wrote the case and why?
No. No. Fuller wrote the case because he wanted to show his perspective on jurisprudential enquiry.
What is the rule of recognition?
Only social sources can supply the criteria of legality but morality may be a condition of legal validity
Difference between philosophy and ideology?
Philosophy tries to understand the world in its current state. Ideology expresses dissatisfaction with the current state and aspires to be some future state.
In the evolution of Greek thought name a philosopher who represented the rational mind?
Plato
Raz v Hart
Raz says all legal criteria must flow from social sources. Hart says mark the transition from early law to full blown legal systems.
What is entitlement? Why is it important?
Rights granted to you. Important because they are gifted to you and not given. Therefore, you have to earn these rights via good behavior, etc.
Rousseau v Finnis v Kelsen
Rousseau says that natural law plays less of a central role than the social contract. Finnis says that natural law is used to assist the practical reflections of those concerned to act. Kelsen says we need assumption of grundnorm in order to understand legal order.
Explain how the semantic sting delegitimizes Positive Law?
Says that there must be more to legal validity than can be explained in rule of recognition
Who said "States without justice are but robber bands enlarged"?
St. Augustine
What two philosophers linked natural law to divinity?
St. Thomas Aquinas and St. Augustine
How can law be internally consistent but detached from morality and still be effective?
The Legal system subjects humans to the guidance and control of general rules.
What was Cicero's contribution to law?
The rectification of reason and nature
What is moral relativism?
The view that ethical standards are culturally based and a person's choice
What were the three centers that began history and launched ancient law?
Tigris, Euphrates, and Nile. (Crete, Egypt, China)
What was Rousseau's reason that "certain natural rights cannot be removed"?
Without due process of law. By investing the general will with legislative authority, the law may infringe upon those rights.
Was Kelsen really a Scandinavian Realist?
Yes because both believe that law is something man-made and made for men.
Aquinas's written piece on Ethics. Was it significant? Why?
Yes. Because this theory influenced St. Thomas Aquinas to create the most comprehensive statement of Christian Doctrine.
Is there evidence that law was universal in the ancient world?
Yes. Code of Hammurabi and The Pentatuch.
Is law universal? Why?
Yes. Rules for governing human beings are most universal in their acceptability, applicability, and philosophical basis.
Is morality linked to law?
Yes. Soft Natural Law points us to the good, human beliefs, etc.
