GE8 Long Quiz PDF

POSITIVE LAW - Human Law, also called 'positive law', 'civil law', 'municipal law', and 'written law' Human Law: A. Civil Law (Jus civile), B. law of nations (jus gentium) - Jus Civile: old law for Roman citizens//This was a largely legislated law - Jus Gentium: Law for non-Roman citizens i...

POSITIVE LAW - Human Law, also called 'positive law', 'civil law', 'municipal law', and 'written law' Human Law: A. Civil Law (Jus civile), B. law of nations (jus gentium) - Jus Civile: old law for Roman citizens//This was a largely legislated law - Jus Gentium: Law for non-Roman citizens i.e. foreigners.// Romans use jus gentium in the modern sense of "law of nations" which is "international law" International Law - concerns relations between states which are "in a state of nature in relation to one another" CRIMINAL LAW - deals with acts or omissions committed against the community for which penalties are imposed by the state. CLASSIFICATION OF A CRIME a. Economic offenses - crimes against property such as robbery and theft b. Offenses against the state - crimes of rebellion and treason c. Offenses against other people - crimes which harm other persons such as physical injuries d. Offenses against one's self - also called victim less. Acts or omissions which mainly harms the person who commits them i.e illegal gambling ELEMENTS OF A CRIME a. Actus Reus - the Guilty Act. commission or omission of an act in such a way that it breaks the law. // Criminal intent b. Mens rea - the Guilt Intention. specific desire to commit the act or omit the doing of duty. // Mental part c. Causation - the act or omission must have been the cause of the specific injury complained of. This injurt may be against another person, property, the state, or one's self. NATURAL LAW THEORY - believes that the essence of law is morality and justice. A. just naturale - Natural law is concerned with what is good or just. B. Overlap thesis - Natural law posits that there is no separation between law and morality - The notion that law and morality intersect is called the 'overlap thesis' C. Positivist view of law - Sharp contrast to natural law, which developed in the nineteenth century with the rise of colonization by powerful states over weaker states. - There is no law beyond that made by humans. ARGUMENTS FOR NATURAL LAW - With the moral test as part of the meaning of law, citizens will be able to condemn and disobey morally unjust laws. ARGUEMT AGAINS NATURAL LAW - Jeremy Bentham and John Austin argue that if each citizen could test the law against his own moral principles before he considered it genuine law, the philosophical foundation for anarchism would be provided. LEGAL POSITIVISM - also known as "classical legal thought" is the opposite of natural law theory. While the latter anchors a law's worth on its compliance with moral standards, legal positivism regards a law's validity in terms of social convention i.e. law as poited by society and not by al solute ideas of morality or notions of justice. LAW AND POLITICS - Both are broadly concerned with the problem of power. - Vladimir Lenin said that "law is a political tool; it is politics" - For Harold Lasswell and Myres McDougal, founders of the "policy-oriented" jurisprudence, Law may be characterized not merely as decision, but as authorative decision, in which elements of both authority and control are combined. ARGUMENT FOR LEGAL POSITIVISM A. SEPARABILITY THESIS - Legal positivists argue that law and morality are separate. This is the "S.T", which posits that there is no necessary connection between law and morality. B. IS-OUGTH FALLACY - Legal positivists say that a law is a law even though it is immoral. ARGUMENTS AGAINST LEGAL POSITIVISM - Joel Feinberg argues that it is absurd to OBEY LAW QUA LAW (i.e. obey law just because it is law). AUSTIN'S COMMAND THEORY OF LAW - John Austin articulated the command theory of law. - He believes that laws are commands from a sovereign backed by the threat of punishment. H.L.A. HART'S RULE OF RECOGNITION - The rule of recognition argues that subjects or citizens voluntarily obey the laws of the land because they accept as valid the rule making institution (e.g. congress's) claim to exercise of authority. - Monarchic sovereignty - subjects willingly comply with the royal edicts because they had accepted (or assumed) their monarchy's authority to dispense laws. - Rule of recognition - the primary rule that establishes certain groups or persons as the state's primary rule-making institutions. LEGAL POSITIVISM - DWORKIN'S THEORY OF ADJUDICATION: It is considered the middle ground between natural law and legal positivism. - Legal positivists believe that because a law is nothing more than a rule, judges must use only one standard in deciding a case. - Dworkin believes that law is a "Seamless System". If judges cannot find applicable legal rules, they can turn to principles or other legal standards for answers inside the "seamless web of law" RULES AND PRINCIPLES Rules - are an "all or nothing" choice. - They are not weighed or balanced. - Either a rule applies to a case or not. Principles - represent various norms and values of society. - They make up the community's "moral fabric"