Legal Philosophy: Holmes and Utilitarianism
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Questions and Answers

Holmes is considered a heroic figure in law for English people because he combined creativity and lack of clarity.

False (B)

The great Utilitarians, such as Bentham and Austin, believed in a clear distinction between law as it is and law as it should be.

True (A)

Austin's idea suggests that the existence of a law is synonymous with its goodness.

False (B)

The separation between law and morals is generally accepted in England.

<p>False (B)</p> Signup and view all the answers

Holmes believed that legal issues are often talked about in a way that is too confusing.

<p>True (A)</p> Signup and view all the answers

Bentham’s works do not have connections to the principles of the Rechtsstaat.

<p>False (B)</p> Signup and view all the answers

Sir William Blackstone believed that human laws should never contradict divine laws.

<p>True (A)</p> Signup and view all the answers

Austin claimed it is acceptable to blur the line between what the law is and what it should be.

<p>False (B)</p> Signup and view all the answers

Judges are required to legislate when legal rules are incomplete.

<p>True (A)</p> Signup and view all the answers

The term 'judicial legislation' accurately captures the nature of judicial decision-making.

<p>False (B)</p> Signup and view all the answers

Smart decisions are always aligned with moral grounds.

<p>False (B)</p> Signup and view all the answers

Penumbral questions are legal issues that have clear and straightforward answers.

<p>False (B)</p> Signup and view all the answers

Judges have the freedom to weigh various claims in criminal cases.

<p>True (A)</p> Signup and view all the answers

A decision made by a machine is often viewed as preferable compared to one made by a smart person.

<p>False (B)</p> Signup and view all the answers

The argument for a clear distinction between law and morals is weakened by utilitarian claims.

<p>True (A)</p> Signup and view all the answers

Radbruch's appeal against positivism was influenced by his experiences during the Nazi regime.

<p>True (A)</p> Signup and view all the answers

Separating law from morality allows for those in power to perpetuate injustice without resistance.

<p>True (A)</p> Signup and view all the answers

Legal rules are always complete and directive in all cases.

<p>False (B)</p> Signup and view all the answers

The notion of moral judgement is irrelevant to the process of criminal sentencing.

<p>False (B)</p> Signup and view all the answers

Blurred lines between what the law is and what it should be are beneficial for legal clarity.

<p>False (B)</p> Signup and view all the answers

All legal questions are fundamentally the same, regardless of context.

<p>False (B)</p> Signup and view all the answers

The German legal profession opposed the actions taken during the Nazi regime.

<p>False (B)</p> Signup and view all the answers

A deliberate decision to treat a new case the same as past cases is the same as a recognition that includes the new case under the rule.

<p>False (B)</p> Signup and view all the answers

Bentham believed that law and morals should be kept separate.

<p>True (A)</p> Signup and view all the answers

Some lawyers and judges may appreciate romantic language over utilitarian terminology in legal discussions.

<p>True (A)</p> Signup and view all the answers

Austin asserted that constitutional provisions can limit legislative power.

<p>True (A)</p> Signup and view all the answers

Professor Fuller’s example from Wittgenstein illustrates a clear and specific understanding of what a 'game' is.

<p>False (B)</p> Signup and view all the answers

Utilitarianism focuses solely on moral principles without regard to outcomes.

<p>False (B)</p> Signup and view all the answers

Understanding people's intentions requires a consideration of common goals.

<p>True (A)</p> Signup and view all the answers

Critics of the separation between law and morals believed that if one doctrine was wrong, the others must also be wrong.

<p>True (A)</p> Signup and view all the answers

Judges always know the specific cases that fit under vaguely stated instructions.

<p>False (B)</p> Signup and view all the answers

Bentham's notable advice for living under the rule of law was to obey and criticize freely.

<p>True (A)</p> Signup and view all the answers

The concept of 'is' and 'ought to be' can function without involving moral considerations.

<p>True (A)</p> Signup and view all the answers

According to Bentham, laws are invalid if they contradict divine commands.

<p>False (B)</p> Signup and view all the answers

There are typically multiple equally good options in interpreting the law.

<p>True (A)</p> Signup and view all the answers

Judicial legislation is always considered an arbitrary act.

<p>False (B)</p> Signup and view all the answers

The command theory of law posits that law is simply a set of rules.

<p>True (A)</p> Signup and view all the answers

Both Bentham and Austin denied the existence of any moral principles within the legal system.

<p>False (B)</p> Signup and view all the answers

The law allows individuals to limit their choices rather than dictate their choices.

<p>True (A)</p> Signup and view all the answers

Legal situations rarely exemplify a single correct way to interpret a case.

<p>True (A)</p> Signup and view all the answers

Amos believed that Austin separated the law from morality effectively.

<p>True (A)</p> Signup and view all the answers

The Utilitarians asserted that laws with unclear meanings should be seen as definitive rules of law.

<p>False (B)</p> Signup and view all the answers

The Utilitarian belief includes a separation of what law is from what it should be.

<p>True (A)</p> Signup and view all the answers

Legal provisions can bring moral principles into the legal system.

<p>True (A)</p> Signup and view all the answers

Blackstone accurately articulated the relationship between law and God’s commands, according to Bentham.

<p>False (B)</p> Signup and view all the answers

Utilitarianism is a form of deontological ethics.

<p>False (B)</p> Signup and view all the answers

The common law jurisprudence was shaped significantly by the ideas of Austin.

<p>True (A)</p> Signup and view all the answers

The command theory emphasizes a simple relationship between the commander and the commanded.

<p>True (A)</p> Signup and view all the answers

Criminal law is intended to give people rights and powers.

<p>False (B)</p> Signup and view all the answers

Salmond concluded that legal systems must be connected with moral rules.

<p>True (A)</p> Signup and view all the answers

The command theory adequately addresses the complexity of law.

<p>False (B)</p> Signup and view all the answers

Rules that grant rights must always align with concepts of justice.

<p>False (B)</p> Signup and view all the answers

The judicial process is primarily based on deductive reasoning.

<p>False (B)</p> Signup and view all the answers

The Utilitarians strongly favored the separation of law as it is and law as it should be.

<p>True (A)</p> Signup and view all the answers

Formalism is associated with a strict adherence to logic in the judicial process.

<p>True (A)</p> Signup and view all the answers

Judicial decisions must always reflect automatic interpretations of the law.

<p>False (B)</p> Signup and view all the answers

There is no intersection between law and morals according to some critics of the command theory.

<p>True (A)</p> Signup and view all the answers

A legal system must always meet moral standards to be considered a legal system.

<p>False (B)</p> Signup and view all the answers

The notion of a legal system excludes moral reasoning.

<p>False (B)</p> Signup and view all the answers

Justice means treating similar cases in similar ways.

<p>True (A)</p> Signup and view all the answers

Automatic decisions undermined the legitimacy of legal systems according to critics.

<p>False (B)</p> Signup and view all the answers

Natural-law theory asserts that humans all agree on survival as the highest goal.

<p>False (B)</p> Signup and view all the answers

Continental critics acknowledged the subjectivity of legal rights in the command theory.

<p>True (A)</p> Signup and view all the answers

Rules forbidding violence are considered arbitrary in a world where people cannot hurt each other.

<p>True (A)</p> Signup and view all the answers

Judges should ignore the problems of the penumbra when making decisions.

<p>False (B)</p> Signup and view all the answers

Legal systems can apply equally to all individuals while being fundamentally unfair.

<p>True (A)</p> Signup and view all the answers

Utilitarianism's approach to law has been universally accepted without critique.

<p>False (B)</p> Signup and view all the answers

Humanitarian morality is a part of the concept of Recht or Legality.

<p>True (A)</p> Signup and view all the answers

All legal systems agree on important moral principles like the prohibition of killing.

<p>True (A)</p> Signup and view all the answers

The distinction between 'is' and 'ought' is accepted by all moral theories.

<p>False (B)</p> Signup and view all the answers

The view that law can be law without conforming to moral requirements is deemed sensible.

<p>False (B)</p> Signup and view all the answers

Radbruch's conception of law does not consider moral principles.

<p>False (B)</p> Signup and view all the answers

Statements about facts and values are seen as belonging to different categories in legal positivism.

<p>True (A)</p> Signup and view all the answers

Laws can be unjust but are still classified as laws.

<p>True (A)</p> Signup and view all the answers

A wife reported her husband for making insulting remarks about Hitler.

<p>True (A)</p> Signup and view all the answers

Moral judgments cannot be argued for in rational terms, according to some theories.

<p>True (A)</p> Signup and view all the answers

Under Nazi laws, the wife's legal duty was to report her husband for his remarks.

<p>False (B)</p> Signup and view all the answers

The court held that the statute violated the principles of justice and conscience.

<p>True (A)</p> Signup and view all the answers

Legal systems derive their legitimacy solely from their compliance with morality.

<p>False (B)</p> Signup and view all the answers

Natural procedural justice is based on fairness and objectivity in legal applications.

<p>True (A)</p> Signup and view all the answers

It is considered wise to declare a statute established since 1934 as having no legal force.

<p>False (B)</p> Signup and view all the answers

There are rules that are moral but do not qualify as laws.

<p>True (A)</p> Signup and view all the answers

A moral quandary should be hidden away to avoid complications.

<p>False (B)</p> Signup and view all the answers

A legal system without basic protections would still be effective.

<p>False (B)</p> Signup and view all the answers

All values can fit into a single moral system without compromise.

<p>False (B)</p> Signup and view all the answers

Punishing the woman can be justified under a new retrospective law.

<p>True (A)</p> Signup and view all the answers

Radbruch asserts that certain immoral rules cannot be considered as law.

<p>True (A)</p> Signup and view all the answers

Utilitarian thinkers believed that laws could be law but too evil to obey.

<p>True (A)</p> Signup and view all the answers

The relationship between individual laws and the overall legal system is insignificant.

<p>False (B)</p> Signup and view all the answers

The Utilitarians' distinction between law and moral principles holds no moral value.

<p>False (B)</p> Signup and view all the answers

Flashcards

Separation of Law and Morals

The idea that the law as it is, and the law as it should be are two distinct concepts.

Legal Positivism

A legal philosophy that emphasizes the importance of separating law from morality, focusing on the law's formal structure and its clear and distinct application, regardless of its perceived ethical value.

John Austin

One of the most prominent figures associated with legal positivism. His key principle: the separation of law and morality, focusing on the law's formal structure and its clear and distinct application.

Jeremy Bentham

A prominent legal philosopher and jurist who championed legal positivism, emphasizing the clarity and distinct nature of law apart from moral considerations.

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Formalist Jurisprudence

A legal doctrine emphasizing the legal system's rules and procedures as the primary foundation for legal decision-making, separate from subjective interpretations.

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Clarity in Law

The idea that a legal system's laws should be clear, precise, and easily understandable. It emphasizes the importance of predictability and certainty in the law's application.

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Natural Law

Legal principles and ideals that emphasize fairness, justice, and the protection of individual rights. It's often contrasted with legal positivism, which focuses on the formal aspects of law.

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Rechtsstaat

A legal system that seeks to achieve a balance between procedural fairness, legal certainty, and substantive justice.

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Penumbral Questions

Those sections of the law where the rules are less clear and require more interpretation.

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Judges 'Drawing Out' Social Policies

The idea that judges in deciding cases should draw out the appropriate social policies from the laws, even if those policies are not explicitly stated.

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Smart Decisions vs Moral Decisions

A criticism of the view that judges have no moral role in deciding cases: it says that smart decisions are not necessarily morally good decisions.

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Moral Judgement in Sentencing

A decision based on an assessment of all the factors in a case, including the moral implications.

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The Utilitarian Distinction

The difference between how the law is and how it should be.

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Formalism in Law

The use of clear rules and formal procedures to decide legal cases; often criticized for being too inflexible.

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Incurably Incomplete Laws

The idea that the law is incomplete and judges must use their judgment to decide cases that the law doesn't fully cover.

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Gesetz als Gesetz (Law as Law)

The legal system that insists on the separation of law and morals.

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Moral Obligation to Resist Unjust Laws

The idea that laws reach a point of injustice where people have a moral obligation to resist them.

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Nazi Legality

The view that the Nazis' legal system was based on an extreme form of legal positivism, prioritizing formal law over morality.

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Subservience to Mere Law

The idea that the Nazi regime exploited a blind adherence to formal law, without considering its moral implications.

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Failure of Protest in Nazi Germany

The idea that the legal profession failed to speak out against the injustices committed by the Nazi regime.

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Utilitarianism

A theory that focuses on outcomes. Actions are right or wrong based on their consequences. The best action produces the greatest good for the greatest number.

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Law as a Command

A set of rules enforced by a sovereign or authority, regardless of their moral content.

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Intersection of Law and Morals

The idea that laws can incorporate moral principles, making them part of the legal system. This also means courts can consider fairness and what is best in their decisions.

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Constitution

A document that limits the power of the government. It outlines fundamental rights and rules that even the most powerful authority must follow.

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Law Lost in Morality

The danger of confusing the law's authority with moral judgments. This can lead to disregard for actual laws, making it harder to enforce them.

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Law Replacing Morality

The idea that law should become the ultimate standard for right and wrong, replacing moral judgment. This limits freedom to criticize and question legal rules.

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Legal Principles

Rules that guide legal interpretation. They are not explicit laws but general principles used by courts to decide cases, often based on broad concepts of fairness and justice.

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Social Contract Theory

A theory that law is ultimately derived from the consent and acceptance of people in a society. It emphasizes the will of the people in shaping legal rules.

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Command Theory of Law

The idea that a law's moral content is irrelevant to its legal validity. As long as it is made by the proper authority using the right process, it's a law.

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Historical Jurisprudence

A theory that law is based on historical custom and tradition. Laws develop over time through precedents and accepted practices.

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Social Engineering

The idea that the law should be a tool for accomplishing social goals and promoting the welfare of the community.

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Legal Interpretation

The process of applying the law to specific cases. Involves interpreting the meaning of legal rules and how they apply to particular situations.

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Law and Justice

The idea that law is a tool for achieving justice. It's about fairness, preventing harm, and protecting rights.

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Habitual Obedience Theory

The idea that the law is based on habitual obedience to a sovereign who is not bound by the law.

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Laws and Moral Principles

The idea that laws, particularly those giving rights, do not necessarily need to be morally based or aligned with justice.

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Penumbra of Uncertainty

The ambiguity inherent in legal rules, where their application to specific cases is not always clear-cut.

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Formalism

The belief that applying legal rules to specific cases is a process of logical deduction, ignoring the inherent ambiguity and context.

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Social Goals in Law

The idea that legal decisions should be made based on social goals and values, rather than solely on formal legal rules.

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Separation of Law as It Is and Law as It Should Be

The perspective that suggests separating law as it is (positive law) and law as it should be (natural law).

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Criticism of Formalism

The criticism that legal formalism, which focuses on logical deduction, overlooks the essential role of non-deductive reasoning in legal decision-making.

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Rational Legal Decision-Making

The idea that legal decisions should be made in a way that is rational and considers the broader societal consequences.

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Utilitarianism and Law

The Utilitarian view that law is a tool for promoting social utility and achieving the greatest good for the greatest number.

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Accessibility of Law

The idea that the interpretation of legal rules should be accessible to the average citizen.

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Conservative Legal Interpretation

The potential for a legal system to pursue conservative values based on the interpretation of rules.

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Values and Principles in Law

The idea that a legal system should be based on a set of core values and principles rather than just a collection of rules.

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Criticism of the Separation of Law as It Is and Law as It Should Be

The criticism of the Utilitarian view that law as it is and law as it should be are distinct, arguing that legal judgments are inherently informed by values and principles.

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Radbruch's Doctrine

Laws cannot be considered valid if they violate basic principles of morality.

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Sinister Character of "Law is Law"

The idea that emphasizing the slogan "law is law" can lead to dangerous consequences, particularly when laws contradict basic moral principles.

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Wife's Denunciation

The act of a wife denouncing her husband for criticizing Hitler, despite the legality of her actions under Nazi law, illustrates the conflict between law and morality.

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Retroactive Invalidation

The act of declaring a past law invalid due to its moral injustice, even though it was legally valid at the time.

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Lesser of Two Evils

The need to grapple with moral dilemmas and choose the lesser of two evils, even if it means sacrificing principles.

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Romantic Optimism

The attempt to avoid confronting moral dilemmas by presenting all values as compatible within a single system. It avoids acknowledging necessary sacrifices.

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Plain Speech in Moral Criticism

The use of plain language to express moral criticisms of laws, avoiding complex philosophical arguments or legalistic justifications.

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Utilitarian Distinction

The distinction between the law as it is and the law as it should be, arguing that a law can be valid but morally unacceptable.

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Law Versus Legal System

The potential distortion of the concept of a legal system by focusing on the separation of law and morals at the level of individual laws, rather than examining the broader moral implications of the legal system itself.

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Moral Influence on Legal System

The recognition that ethical principles and moral ideas about what law should be play a significant role in shaping the broader context and understanding of legal systems as a whole.

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Blurred Lines Between Law and Morals

The argument that the separation of law and morals is not always a clear-cut division, as moral considerations can influence not only individual laws but also the overall structure and conceptual framework of the legal system.

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Complexity of Law and Morality

The need for individuals to recognize and confront the inherent complexity of the relationship between law and morality, acknowledging that there might not always be simple or easy answers.

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Dangers of Hiding Moral Dilemmas

The potential dangers of hiding or obscuring moral dilemmas when dealing with legal problems, arguing that honesty and transparency are crucial for ethical decision-making.

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Moral Value of Law and Morals Distinction

The recognition that the distinction between law and morality is not merely an intellectual exercise, but has significant moral implications, emphasizing the importance of upholding moral principles even when faced with legal complexities.

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Lessons from the History of Morals

The importance of remembering that the history of morals teaches us that moral quandaries should be acknowledged and addressed, not avoided.

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Natural Extension of a Legal Rule

When interpreting legal rules, some cases fit so naturally into a rule's extension that it's inappropriate to call this 'legislation' or 'making law.'

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Revealing True Purpose of a Rule

The idea that the true purpose of a rule can be revealed by looking at specific cases, even if those cases were not initially considered.

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Interpreting Actions and Intentions

Understanding people's actions or intentions based on their common goals and understanding their words in context.

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Spirit of the Law

The ability to explain the 'spirit' of a rule by applying it to unexpected or new situations.

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The 'Wrong' of Ignoring Natural Fit

The argument that it's wrong to ignore the natural fit of a case with a rule, even if it means extending or clarifying the rule.

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Ends and Means in Legal Interpretation

The idea that the law can be understood through the lens of 'ends' and 'means,' and ethical considerations are relevant for determining 'means' but not 'ends.'

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The Law and Uncertain Choices

Understanding the law involves acknowledging that there are often uncertain situations where choices have to be made. The law guides those choices but doesn't eliminate them.

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The Moral Justification of Law

The argument that it can be wrong for the law to be different from what it should be, emphasizing the importance of finding the right application of the law.

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Law and Justice in a World of Choices

The idea that the law, despite its limitations, can be used to promote justice and fairness in a world where choices often involve difficult decisions.

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Justice in the Application of Law

The idea that a legal system should treat similar cases similarly, ensuring fairness and consistency in its application.

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Natural Procedural Justice

The principle that a legal system's rules should be based on objective and impartial standards, promoting fairness in its application.

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Minimum Requirements for a Legal System

The idea that certain fundamental moral principles are essential for any functional legal system, such as prohibiting violence and recognizing basic property rights.

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Non-Cognitive Theories of Morality

The view that moral judgments cannot be proven or disproven by rational methods like statements of fact. Instead, they are based on values and beliefs.

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Is-Ought Distinction

The idea that there's a fundamental distinction between statements about facts (what is) and statements about moral judgments (what ought to be).

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Natural Law Theory

The theory that legal rules are a natural extension of underlying moral principles, meaning that good laws should reflect these principles.

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Rejection of Non-Cognitive Morality

The idea that statements about facts (what is) and statements about moral judgments (what ought to be) are not fundamentally different, meaning morality can be reasoned about objectively.

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Minimum Requirements vs. Substantively Just Law

The argument that even a legal system upholding minimum requirements like protection from violence could still be profoundly unjust if its laws are inherently unfair.

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Purposeful Addition of New Cases to Legal Rules

The idea that adding a new case to an existing legal rule should make sense as a natural extension of the rule, reflecting an underlying purpose rather than individual preferences.

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Moral Judgments as Rationally Defensible

The argument that moral principles can be defended using reason and logic, just like any other type of judgment.

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Study Notes

Holmes's Heroism in Law

  • Holmes, despite American perception, remains a legal hero in England.
  • He uniquely combines creativity (often lacking in English legal thought) with clarity (usually present).
  • English lawyers recognize Holmes's insight that established legal principles are dynamic.
  • Clarity, even when incorrect, is a hallmark of legal virtue, akin to Austin's work.

Part I: Utilitarian Thinkers and the Law

  • Utilitarians (Bentham, Austin) were significant legal thinkers in late 18th/early 19th century England.
  • They emphasized distinguishing "law as it is" from "law as it should be".
  • This separation is viewed as problematic in some countries, including England, where a stronger connection is assumed.
  • Bentham recognized elements of modern natural law principles in his writing.
  • Bentham and Austin weren't merely academic: they were acutely aware of real-world issues.
  • They separated law and morals to avoid dangers of losing established law and overriding morality.
  • Austin argued that a law's existence doesn't equate to its moral goodness.
  • Blackstone emphasized divine law as superior to human law.
  • Austin criticized confusing law with morals, regardless of moral standards.

Part II: Criticisms of Utilitarian Position

  • Utilitarians meant that law doesn't have to align with moral standards.
  • Utilitarians recognized explicit legal provisions for moral principles.
  • They knew courts could decide based on fairness/best interests.
  • Bentham recognized constitutional limitations on legislative power.
  •  Utilitarians stated that neither a law's moral worth nor undesirability proves its legal status.
  • American criticism focuses on legal penumbras (areas of uncertainty).
  • Legal interpretations aren't always deductive reasoning.
  • Judicial reasoning in penumbral areas can be rational, even without being logically conclusive.
  • The utilitarian distinction might be misleading for complex legal systems.
  • Formalism/literalist approaches are sometimes employed for political/social policies.
  • Judicial decision-making requires consideration of social goals.
  • "Judicial legislation" can occur through thoughtful interpretation of rules.

Part IV: Nazi Regime and Law-Morality

  • Radbruch, a German thinker, challenged the utilitarian distinction after his experiences.
  • Radbruch argued that laws infringing basic morality are not truly law.
  • Nazi regime highlighted the dangers of blind adherence to positive law.
  • Instances where courts defied Nazi laws to uphold morality are discussed.
  • The discussion considers a deeper relationship between law and morality in a broader context.
  • Legal systems do often rely on fundamental moral principles.
  • Legal systems don't achieve their function without aligning with human moral standards.
  • Natural Law theory extends the argument further.

Part VI: Subjectivism, Relativism, and Ethics

  • The relationship between law/morality depends on theories of moral judgements.
  • Law and moral principles aren't necessarily distinct.
  • Moral judgements are rationally arguable, the utilitarian distinction holds value.
  • The intersection of (clear) law and (ambiguous) applications of law, along with their implications (whether they're better understood as legislative/judicial extensions or fiat).
  • Legal interpretation involves considering existing goals and purposes in uncertain cases.
  • The rare examples of seemingly entirely unique cases demonstrate the inherent limits of rules and predictability in law.

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Description

Explore the complexities of legal philosophy through the lenses of key figures like Holmes, Bentham, and Austin. This quiz delves into their differing views on the relationship between law and morality, as well as the role of judges in legislative matters. Perfect for students studying the foundations of legal theory.

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