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Midterm

01:790:373 Study Guide - Midterm Guide: H. L. A. Hart, Ordinary Language Philosophy, Legal Positivism


Department
Political Science
Course Code
01:790:373
Professor
Mc Fall
Study Guide
Midterm

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Exam #1 Review 17 October 2012
Part 1
3 out of 5 short answer question (20 points each)
Reasoning by example
oPresent case is classified on analogies between it and prior cases
These are precedents
Levy: the following of similarity and differences is the key step in
the legal process
oOnce a precedent is chosen, significant facts are found
oThe announcement of the rule inherent is the present
Never perfect similarities in the legal world
Judges have the freedom to chose facts they are going to use
Judges use their ideology
Pick the precedent and describe the facts in the way they
would like to do
Plato: argued against this model
Laws are no good because they can never be crafted to
meet certain specifics
Better to be ruled by a wise man that can take in and
observe these facts than a rule that is rigid
Law as deduction
oDeductions
Involves and interference in which the conclusion, usually about
particulars, follows necessarily from general or universal premises
If all of the premises are true, than necessarily the conclusion is
true
Example: the law implicates that no person should drive faster
than 65 mph on the parkway
Person 1 drives 70 mph
Conclusion: the person is breaking the law
Practical reason in Aristotle
oWe have seen that the decisions of a practically wise person are not mere
intuitions, but can be justified by a chain of reasoning
o Reasoning can always be traced back to a starting point that is not itself
justified by further reasoning
oNeither good theoretical reasoning nor good practical reasoning moves in
a circle
True thinking always presupposes and progresses in linear fashion
from proper starting points
Leads him to ask for an account of how the proper starting points
of reasoning are to be determined
oPractical reasoning always presupposes that one has some end
oSome goal one is trying to achieve
oThe task of reasoning is to determine how that goal is to be accomplished

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Exam #1 Review 17 October 2012
o But if practical reasoning is correct only if it begins from a correct
premise
oLaw is embodied in reason and thought by the state, laws are designed to
make citizens act virtuous (make men moral), laws articulate the values of
a community (common good)
The Stoic view of nature
o“follow nature”
omen are rational beings
part of reason – liberty
all of reason – equality
because we all have reason, there is no reason for humans
to split into communities
world society – fraternities
stoic such that you follow nature, you are part of a whole, nature
provides a normative ruling on how to live your life
there is a fundamental equality to human beings because we can all
use nature
Aquinas definition of law
oIt is nothing else than an ordinance of reason for the common good, made
by him who has care of the community and promulgates
Promulgates (cannot be secret)
Possess clarity
Has to be general (applied to all)
Have practicability
oLaw is a certain ordinance of reason (1) for the common good (2) made by
him who has care of the community (sovereign) and promulgated (made
known, publicized)
oLaw is a certain ordinance of reason for the common good made by him
who has care of the community and promulgated (Page 98)
oCertain ordnance of reason
oFor the common good
oMade of him who has care of the community (sovereign)
oPromulgated
Made know or publicized
oFour Types of Law
Eternal: gods will, rationale way of the universe, flow of nature
Natural: since man can reason, has glimpse of eternal law, god
gives us reason, reason tells us natural law
Human (Positive law): passed by members of congress, must not
conflict with natural law, reflect natural law, made by people to
govern the people, draws authority from natural law
Divine: laws of the bible, ten commandments
What significance does Finnis give the slogan “unjust laws are not laws?”

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

Exam #1 Review 17 October 2012
oFinnis claims that since we have reasoning, we have the ability create laws
that are just, for this reason laws that are unjust are not true laws
Natural law theory and teleology
oNatural Law
Define basic goods and try to lead ourselves to those goods
Through the power of reason we can find these basic goods that we
strive for
Teleological (teleo means end)
Knowledge of ones end as a human being
If we do it correctly we can flourish
Unchangeable and exist for ever and ever
Standard for the laws that we live with everyday
What determines what is right and what is wrong
God cannot violate natural law and reason
Protestant Reformation and natural law
oProtestant Reformation
Religious liberty (Luther)
Any individual believer should be able to consult in
scripture and take part in communion with god
Every believer can consult his or her own conscience
Anyone who tries to get in your way and denies you of
religious freedom is violating the natural law
Every individual posses natural rights
We hold these truths to be self evident
oLife, liberty, and the pursuit of happiness (natural
rights doctrine right in our constitution)
Every individual is a natural being and their freedom
should be protected
Martin Luther thought that the pope should not hold the
tickets to heaven, and individual should have access to god
Reason has to guide our feelings and guide our passion
oNatural Law
Define basic goods and try to lead ourselves to those goods
Through the power of reason we can find these basic goods that we
strive for
Teleological (teleo means end)
Knowledge of ones end as a human being
If we do it correctly we can flourish
Unchangeable and exists for ever and ever
Standard for the laws that we live with everyday
What determines what is right and what is wrong
God cannot violate natural law and reason
Hobbes conception of sovereignty
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