PHL 347- Philosophy of Law Exam 2 Study Guide
Questions and Answers
common law - -practices & principles derived from individual cases that courts decided
rather than from statutes or rules issued by legislative & executive branches
-Two types of common law use - -Historical description, and prescriptive ideal to guide
judicial decision making
-Advocates of common law argue use of common law as a methodology for courts to
employ - -legal judgments that warrant deference from the courts are not exclusively those
that can be found in the text of enacted laws
-David Strauss- strong belief in common law - -if practices have grown up alongside the
text they are too entitled to deference if they have worked well- an old precedent that has
been accepted by subsequent generations in ON PAR WITH THE TEXT
-Doctrine - -precedents and considerations of morality and public policy as well as pre-
adopted rules
-VALUES - -Common law includes them in the calculus of proper judicial decision making
-Planned Parenthood v Casey decision - -court must consider a variety of prudential and
pragmatic considerations designed to test the consistency of overruling a prior decision
with the ideal of the rule of law and to gauge the respective costs of reaffirming and
overruling a prior case
-O'Conner, Kennedy, and Souter on overturning Roe - -it would correct error (they think
that there was an error in the decision) at the cost of profound and unnecessary damage to
the court's legitimacy and to the Nation's commitment to the rule of law
-Macedo's position - -contemporary critic of Bork's original intent theory
-Moral skepticism (Macedo critique of Bork) - -"Moral skepticism in the service of
majoritarianism masquerading as an innocent respect for the constitutional text"
Bork has a derisive attitude toward the judicial invocation of moral principles
Bork says there is no morality that has objective value on its own
implausible, ignoble, deeply at odds with the morally robust constitution
Skepticism to cynicism when he says all moral claims are gratifications
-Majoritanism (Macedo critique of Bork) - -A sophisticated version of might makes right
We are and should be rules by whatever the majority wants
For Bork the greater number of people that support a rule (or principle) that rule is the one
we follow
, They are subject to no restraint to respect individual rights then it is really might or
majority dictates
-Moral subjectivism (Macedo critique of Bork) - -WHAT BORK IS REALLY SAYING (-
Macedo)
So why do you argue for democracy? Isn't that a value?
Bork says that there are objectively no rights and wrongs in our constitution BUT Macedo
says there are clearly objectively valid values in our legal system
The Framers were committed to moral principles
-Macedo's claims about the framers (critique of Bork) - -Framers: suspicious about
democracy & majoritarianism, confident that certain standards of political morality should
transcend the will of the majority, feared the passions of the people and thought reason
should rule, moral abstractions like justice and rights were important to them
Bork does not revere the framers or their intentions in his derision of moral abstractions
-Macedo's arguments related to rights (critique of Bork) - -Might makes right or
majoritarianism is implemented when judicial interpretation is subject to no restraint to
respect individual rights (Under Bork's claim this is the case)
The authors of the constitution included the 9th amendment to give all other rights to the
people...
THEREFORE Bork's skepticism finds little support in the ideas of the founders or in the
constitution
-Bork & Positivism (Macedo critique of Bork) - -he is a positivist- the laws have authority
just because we made them
No other moral quality you can appeal to
Originalist are very intent on the separation of legal and moral matters
-Macedo argues!!!! - -Judicial interpretation should be philosophically informed by
principles that our government stands on
-Bork's Original Intent Theory - -Judicial interpretation should be based solely in
accordance with the understanding and intention of the framers
Judges should not be looking to subjective intentions of particular law makers but what it
would have been generally understood by everyday people
Figure it out based on the CONTEXT of the law
-Bork's democracy argument - -Judicial activism would stray from the democratic
character of our government
The point of it is to be free from democracy to impose the values of the elite upon us
A law is a rule that we have no right to change - at least without democracy
Judges are bound by laws just as much as anyone else
-Bork's Separation of Powers argument - -Necessary given the structure of our
government
Questions and Answers
common law - -practices & principles derived from individual cases that courts decided
rather than from statutes or rules issued by legislative & executive branches
-Two types of common law use - -Historical description, and prescriptive ideal to guide
judicial decision making
-Advocates of common law argue use of common law as a methodology for courts to
employ - -legal judgments that warrant deference from the courts are not exclusively those
that can be found in the text of enacted laws
-David Strauss- strong belief in common law - -if practices have grown up alongside the
text they are too entitled to deference if they have worked well- an old precedent that has
been accepted by subsequent generations in ON PAR WITH THE TEXT
-Doctrine - -precedents and considerations of morality and public policy as well as pre-
adopted rules
-VALUES - -Common law includes them in the calculus of proper judicial decision making
-Planned Parenthood v Casey decision - -court must consider a variety of prudential and
pragmatic considerations designed to test the consistency of overruling a prior decision
with the ideal of the rule of law and to gauge the respective costs of reaffirming and
overruling a prior case
-O'Conner, Kennedy, and Souter on overturning Roe - -it would correct error (they think
that there was an error in the decision) at the cost of profound and unnecessary damage to
the court's legitimacy and to the Nation's commitment to the rule of law
-Macedo's position - -contemporary critic of Bork's original intent theory
-Moral skepticism (Macedo critique of Bork) - -"Moral skepticism in the service of
majoritarianism masquerading as an innocent respect for the constitutional text"
Bork has a derisive attitude toward the judicial invocation of moral principles
Bork says there is no morality that has objective value on its own
implausible, ignoble, deeply at odds with the morally robust constitution
Skepticism to cynicism when he says all moral claims are gratifications
-Majoritanism (Macedo critique of Bork) - -A sophisticated version of might makes right
We are and should be rules by whatever the majority wants
For Bork the greater number of people that support a rule (or principle) that rule is the one
we follow
, They are subject to no restraint to respect individual rights then it is really might or
majority dictates
-Moral subjectivism (Macedo critique of Bork) - -WHAT BORK IS REALLY SAYING (-
Macedo)
So why do you argue for democracy? Isn't that a value?
Bork says that there are objectively no rights and wrongs in our constitution BUT Macedo
says there are clearly objectively valid values in our legal system
The Framers were committed to moral principles
-Macedo's claims about the framers (critique of Bork) - -Framers: suspicious about
democracy & majoritarianism, confident that certain standards of political morality should
transcend the will of the majority, feared the passions of the people and thought reason
should rule, moral abstractions like justice and rights were important to them
Bork does not revere the framers or their intentions in his derision of moral abstractions
-Macedo's arguments related to rights (critique of Bork) - -Might makes right or
majoritarianism is implemented when judicial interpretation is subject to no restraint to
respect individual rights (Under Bork's claim this is the case)
The authors of the constitution included the 9th amendment to give all other rights to the
people...
THEREFORE Bork's skepticism finds little support in the ideas of the founders or in the
constitution
-Bork & Positivism (Macedo critique of Bork) - -he is a positivist- the laws have authority
just because we made them
No other moral quality you can appeal to
Originalist are very intent on the separation of legal and moral matters
-Macedo argues!!!! - -Judicial interpretation should be philosophically informed by
principles that our government stands on
-Bork's Original Intent Theory - -Judicial interpretation should be based solely in
accordance with the understanding and intention of the framers
Judges should not be looking to subjective intentions of particular law makers but what it
would have been generally understood by everyday people
Figure it out based on the CONTEXT of the law
-Bork's democracy argument - -Judicial activism would stray from the democratic
character of our government
The point of it is to be free from democracy to impose the values of the elite upon us
A law is a rule that we have no right to change - at least without democracy
Judges are bound by laws just as much as anyone else
-Bork's Separation of Powers argument - -Necessary given the structure of our
government
