PHL Study Note.docx

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12 Apr 2012
PHL Study Note
Short Answer:
1. Eternal law
a. According to Aquinas, Eternal law is the idea that God governs the
universe through physical laws, moral laws and revealed religious laws.
Eternal law is made up of natural law, human law and divine law. Natural
law (moral) is part of the eternal law that applies to human choices and
can be known by our natural reason. Human law (civil) is the idea that we
created our own laws in order to apply he natural law to the specific
circumstances of our society. Divine law (biblical) is the idea that in the
bible god reveals a special law to guide us to our supernatural end of
eternal happiness with Him.
2. State of nature
a. According to Hobbes, the state of nature is the imaginary condition of
humankind before we join together to form political communities. What
life would be life without government. Hobbes believes it would become a
state of war, or a state of all against all. See as poor and short. It is bad
because people are seen to have no morals.
3. Interpretive theory of law
a. Dworkin = Positive law + full law (set of principles of political morality
that take together provide the best interpretation of the positive law. legal
rights and duties are determined by the scheme of principle that provides
the best justification of certain political practices of a community: a
scheme identifiable through an interpretation of the practices that is
sensitive both to the facts of the practices and to the values or principles
that the practices serve’.
4. Civil disobedience
a. When it comes to problems of unjust laws, 1 of the view is that we are
permitted to break unjust laws in ways that show respect for the rule of
law generally, and minimize bad consequences of law breaking. Civil
disobedience is conscientious moral concern for justice and best interest
of society. It is about bringing change concern for good of society. It is
public publicizes it to draw attention to practices that are unjust. It is
non-violent minimizes negative effects. It is done by people willing to
accept punishment general respect for rule of law.
5. Problems of unjust laws
a. Are we permitted to break unjust laws? 3 views. 1. We are never permitted
hobbes/plato we are in an agreement with the state, not justified to risk
return to state of nature. Usually have worse consequences problem,
what if injustice is bad, and do we really need to accept what the state says
2. We are permitted to break unjust laws at will with no regard how its
done (anarchist) - unjust law is no law at all, does not command respect.
But a problem with this is we might be wrong 3. In a way that shows
respect civil disobedience.
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6. Negative liberty vs. Positive liberty
a. Negative is the liberty to be left alone, free from interference from others
to do as one pleases, Positive is the liberty not just merely to be free from
interference, but to actually carry out goals. Most states are concerned to
uphold negative liberties. Law ensures that the state doesn’t interfere with
people. The law winds up protecting whatever the status quo happens to
be. Merely protecting negative liberties thus reinforces whatever
7. Judicial neutrality
a. Courts are supposed to be neutral on the substantial content of legislation
judges are supposed to interpret and administer the law not impose their
own views on constitution/legal questions. Courts are supposed to uphold
the Charter or Constitution, not change it according to their own personal
beliefs. The constitution assumes that society absent government
intervention is free equal that its laws, in general, reflect this and that
government has previously wronged
8. Reasonable Woman’s Act
a. A female plaintiff states a prima facie case of hostile environment sexual
harassment when she alleges conduct which a reasonable woman would
consider sufficiently severe or pervasive to alter conditions of employment
and create and abusive working environment. Recognizes relevant
differences between men and women in a realm of evaluating sexual
harassment women and men may differ in their perception of what is
sexually threatening The correct standard for determining something
counts as sexual harassment is the perception of a reasonable women
9. Adjudication
a. Judges must interpret the positive law when deciding the cases; the full
law guides the interpretation of the positive law. The steps are: 1. Consider
the actual judicial decision made on the basis of the relevant positive law
2. What underlying principles or rationales can explain these actual
decisions 3. If more than one principle can explain the actual decisions
makes, what is the best or most just?
10. Rule of Recognition
a. Produce our social practice. It has authority because we accept it as
authoritative, determines what count as laws, thus our social practices
determine what counts as law. Because of social practices, the law
prohibits murder a valid law.
11. Penumbra
a. Vague cases in which the rule neither clearly applies nor clearly fails to
apply. Logic alone does not settle whether it applies, so judges must
decide by looking at what the law ought to be. Cases either well-decided
or poorly decided. They are legislating making new law, reason we form
legal systems is because we want to live and thrive together in political
community. We are in fact susceptible to violence and physical harm
12. Cultural Relativism
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