Legal Philosophy Midterm
Why does Aristotle think that practical reason is necessary in a system governed by the
rule of law? - ANS-Aristotle believed that practical reason was necessary in a system
governed by the rule of law because the best way to respond to human problems is
through human reason. Aristotle believed that to uphold a rational state, laws must be
good and respond to the needs of the citizens. He believed that the best way to compel
people to be good through law was to create laws for the common good with equal
treatment, and fair punishment.
How does the Stoic view of nature relate to natural law theory? - ANS-The Stoic view of
nature is that the universe flows in a certain rhythm and therefore to follow nature is to
follow reason. The Stoic view of nature champions principles of liberty and equality. If
everyone follows nature, and therefore follows reason, then everyone is equal in status
and everyone can govern themselves. Stoics believe that nature provides a normative
ruling principle. This related to natural law theory in its belief that reason follows nature
and that law is unchanging over time.
Ordinary language philosophy - ANS-Philosophical school of thought that sees
traditional philosophical problems as rooted in misunderstandings philosophers develop
by distorting or forgetting what words actually mean in everyday use. Highly influenced
Hart. Harshly criticize how people talk about law. Ludwig Vikenstein believed that many
of the traditional problems of philosophy were illusions. Based on misuse of ideas and
words.
Aquinas' definition of law - ANS-Law is a certain ordinance of reason for the common
good, made by him who has care of the community and promulgated. He categorizes
law into four kinds: eternal law, which is identical to the mind of God. The second is
divine law, which is derived from eternal law as it appears to (powerful) humans through
divine commands. The third is natural law, which is moral and works for the preservation
of human life. Natural law is naturally inherited and is accessibly to all humans through
thinking and reason. The fourth and final law is human/positive law, which in a way, is
less perfect (though more specific) than natural law and tends to resolve around
customs and may change with time.
How is Hobbes' conception of sovereignty a refutation of traditional natural law theory? -
ANS-a. Hobbes gives the sovereign the absolute power. Absolute power gives ultimate
, and all power to sovereign, thus violating the definition of natural law which states that
certain rights are inherent to individuals universally. Not all rights are given to the
individual as stated in the definition of traditional natural law. Right to self-preservation is
the only natural right. Source of authority, we agreed to give the authority in the social
contract.
Austin's definition of law - ANS-Austin ultimately defined law as a command. Further, he
stated that, as distinguished from the commands which may be named occasional or
particular, a law is a command which obliges to a course of conduct, or which obliges
generally to acts or forbearances of a class. Body of rules fixed by a sovereign political
authority. The three fundamental concepts of law are sanction, superiority, and
obligation/duty.
Gunman situation writ large - ANS-The gunman situation writ large brings up the
concept of an order backed by a threat. Hart argues that law is not like the gunman
situation, because laws such as contracts or marriage as sanctions are not backed by
threats. Further, even normal criminal laws, may not place a person in immediate
danger to their life. Austin believes this is an example of law: a general order backed by
a threat given by one generally obeyed (the sovereign).
Difference between "rule" and "behaving as a rule" - ANS-The difference between "rule"
and "behaving as a rule" is similar to the difference between being obliged and having
an obligation. For a rule or law to have binding power, it must not only be a rule or be
obliged, it must also behave as a rule and have a corresponding obligation. A rule can
be used as a guide or justification but a binding rule must have some obligation behind
it.
What do norms do and why are they important? - ANS-The regulation/ought's of
behavior. Legal norms are generally binding rules of conduct issued by the state
authority and are intended for the regulation of social relations. Social norms, are
unwritten rules about how to behave. Social norms are ever changing; this can be
proven by the social norms that supported certain negative laws, such as slavery,
segregation, and laws against gay marriage. Guide, control, regulate proper and
acceptable behavior.
Nullity as a sanction - ANS-Hart says that nullity cannot be assimilated to a punishment
attached to a rule because nullity is not simply a threatened evil or sanctions of the
criminal brought out in another form. Sanction of nullity is a civil sanction which
Why does Aristotle think that practical reason is necessary in a system governed by the
rule of law? - ANS-Aristotle believed that practical reason was necessary in a system
governed by the rule of law because the best way to respond to human problems is
through human reason. Aristotle believed that to uphold a rational state, laws must be
good and respond to the needs of the citizens. He believed that the best way to compel
people to be good through law was to create laws for the common good with equal
treatment, and fair punishment.
How does the Stoic view of nature relate to natural law theory? - ANS-The Stoic view of
nature is that the universe flows in a certain rhythm and therefore to follow nature is to
follow reason. The Stoic view of nature champions principles of liberty and equality. If
everyone follows nature, and therefore follows reason, then everyone is equal in status
and everyone can govern themselves. Stoics believe that nature provides a normative
ruling principle. This related to natural law theory in its belief that reason follows nature
and that law is unchanging over time.
Ordinary language philosophy - ANS-Philosophical school of thought that sees
traditional philosophical problems as rooted in misunderstandings philosophers develop
by distorting or forgetting what words actually mean in everyday use. Highly influenced
Hart. Harshly criticize how people talk about law. Ludwig Vikenstein believed that many
of the traditional problems of philosophy were illusions. Based on misuse of ideas and
words.
Aquinas' definition of law - ANS-Law is a certain ordinance of reason for the common
good, made by him who has care of the community and promulgated. He categorizes
law into four kinds: eternal law, which is identical to the mind of God. The second is
divine law, which is derived from eternal law as it appears to (powerful) humans through
divine commands. The third is natural law, which is moral and works for the preservation
of human life. Natural law is naturally inherited and is accessibly to all humans through
thinking and reason. The fourth and final law is human/positive law, which in a way, is
less perfect (though more specific) than natural law and tends to resolve around
customs and may change with time.
How is Hobbes' conception of sovereignty a refutation of traditional natural law theory? -
ANS-a. Hobbes gives the sovereign the absolute power. Absolute power gives ultimate
, and all power to sovereign, thus violating the definition of natural law which states that
certain rights are inherent to individuals universally. Not all rights are given to the
individual as stated in the definition of traditional natural law. Right to self-preservation is
the only natural right. Source of authority, we agreed to give the authority in the social
contract.
Austin's definition of law - ANS-Austin ultimately defined law as a command. Further, he
stated that, as distinguished from the commands which may be named occasional or
particular, a law is a command which obliges to a course of conduct, or which obliges
generally to acts or forbearances of a class. Body of rules fixed by a sovereign political
authority. The three fundamental concepts of law are sanction, superiority, and
obligation/duty.
Gunman situation writ large - ANS-The gunman situation writ large brings up the
concept of an order backed by a threat. Hart argues that law is not like the gunman
situation, because laws such as contracts or marriage as sanctions are not backed by
threats. Further, even normal criminal laws, may not place a person in immediate
danger to their life. Austin believes this is an example of law: a general order backed by
a threat given by one generally obeyed (the sovereign).
Difference between "rule" and "behaving as a rule" - ANS-The difference between "rule"
and "behaving as a rule" is similar to the difference between being obliged and having
an obligation. For a rule or law to have binding power, it must not only be a rule or be
obliged, it must also behave as a rule and have a corresponding obligation. A rule can
be used as a guide or justification but a binding rule must have some obligation behind
it.
What do norms do and why are they important? - ANS-The regulation/ought's of
behavior. Legal norms are generally binding rules of conduct issued by the state
authority and are intended for the regulation of social relations. Social norms, are
unwritten rules about how to behave. Social norms are ever changing; this can be
proven by the social norms that supported certain negative laws, such as slavery,
segregation, and laws against gay marriage. Guide, control, regulate proper and
acceptable behavior.
Nullity as a sanction - ANS-Hart says that nullity cannot be assimilated to a punishment
attached to a rule because nullity is not simply a threatened evil or sanctions of the
criminal brought out in another form. Sanction of nullity is a civil sanction which
