Final Exam Flashcards
(92 cards)
1
Q
What is Legal Positivism?
A
This is an approach to jurisprudence that rejects assumptions made within the Natural Law Theory. Legal positivists reject NLT mainly on the grounds that law must be defined along normative propositions.
2
Q
What is the Natural Law Theory?
A
The Natural Law Theory is an approach to jurisprudence that argues law is grounded within reason and that objective normative propositions are rationally discovered without the need for divine revelation.
3
Q
What is a normative claim?
A
This concerns the evaluation of one’s actions, practices, or character traits. Essentially, a normative claim of judgement is one that judges upon what something ought to be instead of what things presently are. Certain values such as being “good” and “virtuous” are usually associated with normative propositions.
4
Q
What is the difference between Prescriptive and Descriptive Propositions?
A
Prescriptive Propositions: These are statements that evaluate and then encourage particular actions or practices. Descriptive Propositions: These are statements that purely describe, in a neutral tone, facts about the world.
5
Q
What is the “Overlap Thesis” Who supports this theory?
A
The Overlap Thesis: This thesis states that there must be a connection between law and morality, in that any law that violates moral norms is not true law. This idea is supported by Natural Law Theorists.
6
Q
What is the Separation Thesis? Who supports this theory?
A
The Separation Thesis: This thesis argues that legal theorists should keep morality and law separate from one another when analyzing legal concepts. Legal Positivists state that law should be judged upon purely empirical/non-judgemental terms and that jurisprudence should not be determining whether a law is moral or not.
7
Q
Who created the “Command Theory of Law”?
A
John Austin
8
Q
According to John Austin, what 3 general features does law have?
A
- It is a rule.
- It is made by a human being in a position of authority.
- Its purpose is to guide other human beings
9
Q
What two classes of law does John Austin recognize?
A
- Laws posited by God to his human creation: these are sometimes called “laws of nature” but Austin finds this term misleading. We should just call this “Divine Law” instead.
- Laws posited but humans to other humans: such laws come under the umbrella term of “Positive Law”, (i.e. the aggregate of rules established by political superiors) and it is what Jurisprudence is mainly concerned with.
10
Q
What distinctions does Austin make between Positive Morality and Positive Law?
A
Positive Morality: the collection of man-made rules and ordinary opinion that governs how individuals and nations should conduct themselves.
Positive Law: the collection of:
Commands laid down or posited
These commands are made by political superiours of an independent political community
These commands are made to subordinates within that community
They are reinforced by the threat of sanctions
And ultimately these commands impose a duty of compliance
11
Q
How does John Austin define what a command is?
A
A command for Austin is a wish or desire that can be backed up by either a threat of punishment or to protect someone from harm. If the latter is not credible, then the command can be easily disregarded.
Laws Generate a Duty of Obedience
12
Q
What happens when a command is validly issued?
A
If a command is legitimately carried out, this creates an obligation of obedience or a duty to obey within the person who is receiving the command.
13
Q
How do you get people to follow a command according to John Austin? How does he responds to ideas of rewarding those that follow the law?
A
Sanctions are the punishment for not following a command. These sanctions do not have to be inherently violent, they just have to put the subject at a disadvantage (such as a fine). Sanctions can also serve as rewards to push people to follow the law, which was pushed forward as a concept by John Locke and Jeremy Bentham. Austin rejects this train of thought, stating that it would be linguistically confusing to command someone toward a reward.
14
Q
Who can validly issue a command?
A
A law is a command made by someone who is superior. For Austin, this superiority stems from power. This power is based upon might, like how a father is superior to a child or how God is superior to humans.
15
Q
What is the Criterion of Sovereignty?
A
Sovereignty: this is the power to make laws and force their compliance invested in a person or persons who are supreme in an independent political society. It is distinguished from other types of superiority on the following grounds: The majority of the given society is in the habit of obedience to the sovereign whom they recognize as the sovereign. The sovereign themselves is not in obedience to any human superior.
16
Q
How does John Austin respond to William Blackstone’s beliefs regarding Divine Law?
A
According to Blackstone, God’s laws are always superior and that one should always try and follow divine law no matter the cost, even break human law. The reasoning behind this is that it is better to go to prison than to go to hell. Austin responds to this by stating that human laws are in no way binding, as no matter what, you will be punished for violating a law. This social fact, Austin argues, means that human laws do have a binding obligatory force. However, Austin still acknowledges that one probably should not obey a human law that conflicts with divine law (strictly speaking). Furthermore, human legislators should ideally make human laws that are consistent with God’s moral laws. But we cannot know God’s Will with one hundred percent accuracy. However, leaving the individual with the initiative to determine this would lead to anarchy.
17
Q
What idea/theory did H.L.A Hart defend?
A
He defended the Separation Thesis even after the Holocaust.
18
Q
What are the main two criticisms levied against the Separation Thesis?
A
- It blinds people to the true nature of law and its roots in social life, meaning that it was too abstract and focused too heavily on the linguistic analysis of legal terms that it ignored the fact that the true nature of law is that it is a social fact.
- It weakens resistance to a state of tyranny (like what happened with the Nazis).
19
Q
What does Jeremey Bentham insist upon the Separation Thesis?
A
It is easier to see why a law is bad if you keep morality distinct so that it can be easier to reform laws and so that law and morality do not collapse into one single entity.
20
Q
What are two possible dangers of associating law with morality?
A
- People might deduce that it is acceptable to make their own personal morals into law.
- Law comes to supplant morality and becomes the only standard of human conduct (meaning it would become impossible to reform laws).
21
Q
What are the three features of the Utilitarian Tradition of Jurisprudence?
A
- A defence of the Separation Thesis
- A defence of the notion that the analysis of legal concepts is vital to understanding the nature of law as a social and historical fact.
- A defence of the claim that law is essentially a type of command.
22
Q
How does Hart view the Command Theory of Law? How does he respond to critics of the Utilitarian Tradition in Jurisprudence?
A
Hart does admit that CTL is an inadequate and overly simplistic way of understanding the essence of law, as the legal system is much wider than a system of commands. Any statute that is commanded by an autonomous sovereign and backed up by the threat of punishment is a law that generates an obligation of obedience on part of his subjects. Therefore, Hart does object to the CTL, mainly because with the theory, the law is little else than an instrument for coercion (much like how a robber may say “Your money or your life”. Hart stresses that these three features are distinct, though modern critics seem to think that these are part of some kind of package. By disproving one feature, you do not fully debunk each one.
23
Q
What are some defects of the Utilitarian Tradition in Jurisprudence?
A
- Real laws aren’t simply equivalent to the arbitrary will of a monarch or a legislature. This is because leads to change frequently in a democratic nation, democratic societies make laws based on a constitution and the idea that the people are the sovereign defeats to the idea of a single ruler.
- The Command Theory of Law does not capture the nature and function of all legal rules. While it works for basic rules to not commit murder, it does not work well with laws that refer to rights because they facilitate desires.
24
Q
What are the two reasons why Hart rejects the Command Theory of Law?
A
- There can exist rights that need not be connected to justice (e.g. rights in games, ceremonies, etc.)
- There can exist rights in a legal system that need not be consistent with morality (e.g. the rights, in some legal systems permit slavery).
25
How does penumbra refute the Separation Thesis?
These are cases in which the law underspecifies the ruling or there is a certain situation that makes it difficult to administer the law due to the context of the event. Hart states that the judge must base this case on normative grounds, which they will be making law instead of simply interpreting the law. If the judge is now making laws on normative grounds, is he now talking about how laws ought to be?
26
What is the Problem of Hyper-Evil Laws?
This is based on the laws that Hitler and the Nazis created to legalize the usage of concentration camps and treat certain citizens as second-class due to their race. The main defence the Germans used was that they were just following the law and not actually doing anything illegal when they exterminated people. Many critics would blame legal positivism for these atrocities, stating that if morals were a part of lawmaking then the Holocaust could have been prevented.
27
How does Hart respond to Hyper-Evil Laws?
Hart’s response to this was that since the law is the law, they do not inherently support tyranny. If there is an evil law, you are still entitled to judge it or disobey it even if it is a formal law. In summary, Hart thinks that you can still claim a rule is a law and still recognize that it is too morally outrageous to obey. This is why it is important to keep law and morality distinct so that there is a clear standard to judge our laws upon.
28
What is the Overlap Thesis?
Hart admits that there is some overlap between laws and morality. There must be a minimum amount of morality in order to establish laws in the first place, mainly based upon our primitive feelings of pain or hunger. If there was truly no overlap, then the legal system would be useless and there not even be a minimally functioning society.
29
What is the Nescessary-Contingent relationship in regard to legal systems?
Hart basically states that legal norms are consistent with or overlap with morality because of the contingent fact that human beings are vulnerable to physical harm. Contingent: when an event or proposition or state of affairs can be otherwise than it is. Necessary: when an event, proposition, or state of affairs cannot be otherwise than it is.
30
How does Natural law and the Natural Law Theory address the Contingent-Nescessary relationship? How does Hart respond to this?
According to natural law, there is a necessary connection between law and morality. According to NTL, a law must necessarily have moral content for it to be valid. Hart strongly disagrees with this notion, as the scope of rules that do overlap with morality is limited to those that make social life possible.
31
How does Aristotle view Voluntary Action within his greater philosophical framework?
Someone who has been trained from a young age to act according to certain virtues is bound to repeat them throughout their life. Moral virtues are concerned with actions and emotions, such as the virtue of courage leading toward brave actions. We provide praise or condemnation for actions if they are voluntary, but we are absolved of either if the action is involuntary.
32
How does Aristotle define compulsion in the context of an involuntary action? What are mixed actions?
For Aristotle, an external physical agent must be the one forcing the action. Psychological compulsions such as addictions are not the same. Some actions are mixed, in which we do them anyway because of some other greater pressure such as from a greater evil. Certain scenarios in which you have two choices and are forced to choose fall into this category, as you still have the voluntary action of which choice to choose, but you are forced into choosing between the two.
33
What two types of Ignorance does Aristotle identify?
Two types of ignorance, acting in ignorance and acting from ignorance. One of these two types of ignorance makes the action exculpatory, while the other does not.
34
How does Aristotle identify which type of ignorance is exculpatory using the Practical Syllogism?
Aristotle understands humans according to the practical syllogism, which is a deductive argument that consists of 3 propositions, a major premise, a minor premise, and a conclusion that logically follows from the previous premises. When ignorance is attached to the major premise, we are held accountable for our actions. When ignorance is attached to the minor premise, we are not held accountable for our actions. If we are ignorant of the universal, we have poor moral principles, which for Aristotle reflects the moral character we have.
35
What are the two criteria for a Voluntary Action?
1. The Moving cause is within the agent (it arises out of internal states like beliefs, desires, or emotions).
2. The agent is aware of the particulars or circumstances of the action.
Today we think that compulsive desires like addictions are exculpatory, but Aristotle disagrees.
36
What is Mens Rea?
Mens rea (“a guilty mind”): This refers to the mental state of the criminal (as in, to the intention to commit a crime).
37
What is Actus Reus?
Actus reus (“the criminal conduct”): This refers to the criminal act itself.
38
What is Subjectivism?
Subjectivism: The wrongness of the crime is found only in the mens rea and the punishment for having a “guilty mind” should be the exact same even if the act is not completed. The intention was still there, why should he not be prosecuted even if he didn’t commit the action?
39
What is Objectivism?
Intentions do matter when determining criminal liability, but the actions committed are also relevant. There are too many practical difficulties in relying solely on intention, as we cannot read the mind of the criminal to determine their intentions with 100% certainty.
40
What are the two types of Subjectivism?
The Choice Version argues the key determinant for responsibility is choice. The Character Version bases responsibility on psychological dispositions and the character of the individual.
41
What is the Choice Version of Subjectivism? What are some advantages associated with this theory?
This is based on the idea that human agents should only be held responsible for what is in their control. The action must originate from me and I had full control over myself to commit such an action. I may be forced to do things, but I cannot be forced to want to do them or to choose them. The major advantage of this theory is that it minimizes the role that luck or chance should play in criminal liability. I am only held responsible for what I control, which is my intentions and choices. If you did something and did not know the action would cause damage, then you are let off. If you know that an action would cause damage, you are liable for that decision.
42
What are the two types of luck that could affect my choices?
Constitutive Luck: These are factors that are involved in me becoming the type of person I am and therefore influencing the choices I make.
Situational Luck: This includes the factors that are involved in someone finding themself in a situation in which they are tempted or have the opportunity to commit a crime.
43
What are preparatory actions?
Other actions that bolster the intention of committing the crime are used to help showcase intention. Examples are buying a gun or evidence that shows the person planning out a murder, hiring a hitman, etc.
44
What is the problem with the Choice Version of Subjectivism? What is locus poentientiae? What is the threshold problem?
The problem with this viewpoint is that it is deterministic, if I want to commit a crime I will commit a crime. Choice subjectivism should make room for the possibility of a locus poenitentiae, which is the opportunity to change one’s mind and refrain from going through with an intended criminal act. A point of no return must be established in which a person cannot have a change of heart and be absolved of their intentions. This is called the threshold problem.
45
How is the Character Version of Subjectivism a response to the threshold problem?
Focusing on the relationship between intention and character can we decide if someone should be held accountable. The preparatory actions of someone are seen as an anti-social character trait and therefore reveal a deep-rooted choice to disobey the law.
46
What is the definition of punishment?
“A harm inflicted by a person in a position of authority on another person who is judged to have violated a rule”
47
What are the 5 features of punishment?
1. It is “evil” or unpleasant in the sense that it involves some form of suffering or deprivation
2. It is imposed for some kind of offence, whether moral or legal
3. It is imposed on the offender who is judged guilty of wrongdoing
4. It is dispensed by other human beings
5. It is imposed by a person or persons in a position of authority
48
What are the Three Major Theories of Judicial Punishment?
1. Utilitarian
2. Rehabilitative
3. Retributivist
49
What does the Utilitarian theory on Judicial Punishment entail?
Punishment can be justified on the grounds that it helps deter and prevent crimes from happening in the future. It does not focus on the evilness of the act of punishment itself but looks towards the future in how the action will prevent further evils from occurring. Punishment deters future criminals by making an example of someone who commits crimes and it sometimes incapacitates actual offenders by sending them to prison and away from society.
50
What are three criteria that are used to justify punishment on Utilitarian Grounds?
1. Whether the punishment will prevent a repetition of the crime.
2. Whether the punishment, or the threat of punishment, will deter future offenders.
3. Whether the criminal can be rehabilitated.
51
What does the Rehabilitative theory on Judicial Punishment entail?
Criminals are not responsible for their actions because of their condition. Treatment should be used instead of punishment and criminals are confined until they are cured. Deterrence does not work under this theory because criminals are not rational and therefore do not understand punishment as being something to deter.
52
What does the Retributivist theory on Judicial Punishment entail?
Punishment is justified exclusively on the grounds that the criminal committed the crime. The criminal has taken more than he/she deserves and is therefore in debt to society, which is paid back through punishment. This theory looks backward on the nature of the act, which was in the past. This theory is behind the classic saying, “An eye for an eye.”.
53
What is Kant's theory of Good Will?
Kant’s theory of morality is a form of deontological or duty-based ethics. The deontologist determines the morality of an action based on the motive or intention behind it. A good will is the only thing that Kant sees as being absolutely good because everything else is only conditionally good. Only actions that we do out of a sense of our moral duty can be seen as good.
54
What are the two types of imperative?
Categorical: These imperatives are absolutely binding and are applicable to all people at all times and places and govern human conduct regardless of desire. For example, “Dot not lie!” is a categorical imperative.
Hypothetical: A hypothetical imperative is fundamentally non-moral and it expresses the agent’s desires wants or needs in terms of a means-end relationship. An example of this is “If you want to get a good job, then get a good education.”, it is contingent on the agent’s desires.
55
What is the First Formulation of the Categorical Imperative?
Act only according to that maxim by which you can at the same time will that it should become universal law. In order to determine if an action is morally right, we must first determine what sort of maxim or principle dictates that action and we must determine if a contradiction would arise if everyone acted on said principle. If a principle on which you wish to act cannot become a universal law without contradiction, you should not act on that principle. Kant’s famous example of a lying promise illustrates this well since if everyone did it, nobody would trust promises anymore.
56
What is the Second Formulation of the Categorical Imperative?
Act as to treat humanity, whether in thine own person or in that of any other, as an end withal, and never as means only. One has a duty to never use or manipulate people. I must treat those as I want to be treated. When we treat someone as a tool or a means to our own end, we strip them of their humanity.
57
What is the Third Formulation of the Categorical Imperative?
Act as if through your maxims you were a law-making member of the kingdom of ends. If we as rational human beings were to make an ideal state, which principles would be adopted and which ones would we reject. This is to remind us that morality is not just a matter of individual concern but that it is the foundation of society.
58
How does Kant view the Retributivist Theory of Punishment? How does he view other theories of Punishment?
Punishment exists to not settle personal scores but exists for the good of society and is brought about by someone with legitimate authority. Punishment must always and only be retribution for a crime committed and never be used to promote some good. This is because using a criminal as an example is to deny the respect that he is owed as a rational, autonomous human being. We are essentially using him as the means for some social good and treating him like a tool. In its simplest form, the Categorical Imperative encapsulates the Golden Rule, “Do unto others as you would have them do unto you.” Kant is criticizing Utilitarianism by also showcasing that punishment may not always be just or proportionate.
59
What two types of crime does Kant recognize?
1. Private Crime which affects particular individuals (fraud and embezzlement)
2. Public crime, which endangers society itself (theft, murder, creating counterfeit money, etc.)
60
What is the Principle of Equality according to Kant?
In order to determine the punishment that should fit the crime, Kant says that we must use the Principle of Equality to determine this. If I steal something, I must return exactly what I took. The status of the offender must also be considered, as a wealthy person paying a $30 parking fine is not affected the same way that a poor person would be in paying the same fine. The magistrate must use their own judgement in this case to find a fitting punishment. If I take a life, then I must forfeit my own life through the death penalty.
61
What is the Feminist Philosophy of Law?
This is the analysis of law from the perspective of all women, mainly involving ideas of the patriarchy and discrimination against people because of their gender.
62
What are some key concepts pertaining to Feminism?
Liberalism: Feminism is entrenched in Liberalism, most importantly the idea that all people are created equal.
Contract Theory: All humans have the natural right to freedom, but we limit ourselves from absolute freedom because of Hobbes’ “State of Nature”.
Equality: Feminists argue that the principle of liberal equality has traditionally only applied to men, which they see as unfair.
Freedom: The state has the responsibility to not only remove constraints to freedom but to facilitate freedom or autonomy.
63
What is a basic overview of Feminism?
Every sect of Feminism rejects the patriarchy, which is a social arrangement whose structure is hierarchical and puts men at a structural advantage over women. They see the patriarchy as touching every domain of life and want to end sexism in all of its forms.
64
What are some key ideals to Liberalism?
1. All people are free and equal
2. Government derive their legitimacy, not from God, but from the consent of those they govern
3. The primary role of government is to protect freedoms (both negative and positive) and uphold the equality of its citizens.
65
What types of Feminism are there?
1. Liberal Feminism
2. Radical Feminism
3. Relational Feminism
4. Post-modern Feminism
5. Marxist Feminism
66
What is Liberal Feminism and what are its core tenants?
Identified the contradiction that liberalism’s “free and equal” only applied to men. Classical liberalism made a distinction between the “private sphere” and the “public sphere”. Public life is participating in the workforce, making social contracts, joining political organizations, voting, etc. Private life consists of life at home, raising children, doing chores, etc. The division between these two lives is important because it was usually a division made along gender lines. Essentially, the problem was that classical liberalism only seemed to really apply to the public sphere and not the private sphere, or in other words, to men and not to women.
67
Why is classical Liberalism's division of society problematic for Feminists?
It makes it difficult for women to enter public life. This manifests in women pushing for the right to vote, which would not occur in Canada until 1917. They also wanted the freedom to pursue higher education and a career. By making the home non-political it implied that liberal principles of equality and personal autonomy do not apply to women. Traditionally, men were the head of the household and women were not given freedom or equality.
68
What is Radical Feminism and what are its core tenants?
They reject the liberal idea that individuals are free, autonomous agents. They do not think that scouring formal equalities and removing surface-level stereotypes through education can remove deep-rooted patriarchal attitudes in culture. Unless change occurs in our fundamental assumptions about gender and sexuality and the objectification of women, patriarchy will remain.
They view the male/female relationship as one that is inherently one of domination and submission.
69
What is Relational Feminism and what are its core tenants?
This type of feminism argues that men and women are different since they experience different forms of moral development. Men tend to align themselves with the “ethic of justice”, which is focused on abstract rights and principles, such as the Categorical Imperative and the Principle of Utility. Women tend to align themselves with the “ethic of care”, which emphasizes interpersonal relationships and therefore partiality. Humans are therefore enmeshed in a large network of relationships, which should inform our decision-making more than appeals to abstract, universal principles. Some critics state that this idea suggests that gender essentialism differentiates the sexes. It also plays into the old-fashioned stereotypes that women are more emotional and less rational than men. The idea is not to have women try and prove that they can function like men, but to show that virtues and characteristics traditionally associated with women should be accommodated within society.
70
What is Post-Modern Feminism and what are its core tenants?
Postmodernists are skeptical of overarching or universal explanations because they are grounded on assumptions, biases, and value-laden presuppositions. Post-modern thinkers find inspiration through the deconstruction of previously held beliefs to find a foundation of knowledge. Post-modernists do not attempt to rebuild a universal theory of knowledge based on indubitable axioms.
Post-modern feminists view Western history, philosophy, literature, and science as being Phallogocentric, which is the view that male concepts and language capture and explain reality the best. They argue that no “one size fits all” and that oppression should be analyzed on a case-by-case basis in order to find solutions.
71
What is Marxist Feminism and what are its core tenants?
The oppression of women is based upon a class-based society, which means that analysis of class is used instead of gender.
Explains Marxism, which I already know lol. Therefore, Marxist feminists view the oppression of women as stemming primarily from the capitalist system, in not only how it divides society into the private and public spheres, but also because it undervalues the private sphere as noneconomic. The skills that women learn at home are devalued by the market. Marxists feminist theory does not always account for the oppression of women as women and it instead treats the oppression of women as the oppression of workers in general.
72
How does Natural Rights form the basis of Property Rights?
Natural rights are entitlements that are not based on human law but are grounded in the natural moral law. Natural law is accessible through reason alone and is binding because of the kind of creatures we are. Locke believes we are all God’s property; therefore, we have no right to subordinate others or do what we want with our bodies. We must preserve our and others’ natural rights to “life, health, liberty, and possessions”.
73
How did John Locke define Property Rights?
We all have the right to use the resources of the earth in order to survive, which is given to us through natural law. We must use our resources to the best of our ability and minimize wasting resources. In order to justify private property, Locke states that we are naturally equal and therefore we have the right to self-ownership.
74
What is the idea of "labour mixing"?
Each person has the right to their labour, which means that they have the right to private property in the form of what they produce. The right you have as a person is transmitted through your labour into other objects. Labour mixing for Locke is the most natural way for us to gain private land, as getting universal consent from everyone to use something is impossible.
75
What is the Tragedy of the Commons?
The idea that common property is generally less efficiently used than private property because people do not care about common land as much as they do about their private property.
76
How does one get private acquisition of land? Why did this definition lead to Locke believing the Americas existed in a State of Nature?
Gathering resources from the land, such as hunting game or harvesting apples does not give ownership to the land itself, but to the objects that are gathered. Only by digging and planting crops does one gain ownership of land. Even though Aboriginal people did farm, many thinkers during Locke’s time did not think they were an agricultural society and were a hunter-gatherer society, therefore they did not own the land. They did not have land ownership since they did not have a fenced-in property developed specifically for agricultural use. Marking one's territory through fences and walls was important in establishing private land.
77
Why did the Aboriginal people in Locke's view not make productive use of their land?
Locke did not think indigenous people were utilizing the resources they gathered efficiently because of their supposed lack of agriculture. Since the people of the Americas had failed to improve or develop their land through their labour, it was a Europeans natural right to make use of and develop the “wasted” land in the Americas.
78
What are some counterpoints to Locke's view on Natural Property Rights?
Many scholars today reject Locke’s view because he was simply unaware of the details of Indigenous life, which include extensive ways in which agriculture was performed and the efficient usage of resources, such as the many things buffalo could be used for other than just its meat. The farming tradition of the “Three Sisters” (corn, beans, and squash) were staples among many Indigenous people. The idea of enclosing a property to make it your own is very Eurocentric and arbitrary. By Locke’s own account, a verbal agreement of land ownership takes precedence over a physical enclosure.
79
Why do Group Rights exist? What purpose do they serve?
The rights of citizenship in liberal democracies are aimed at making everyone equal and giving everyone fundamental freedoms regardless of background. Group rights for Indigenous people are focussed on protecting the self-autonomy of these people, in regard to practicing cultural traditions. Positive freedom is the freedom to self-determination and autonomy, which the government must supply the resources for an individual to accomplish, which are food, education, etc. The government should provide rights that protect minority cultures, languages, and customs from the “tyranny of the majority”, which can lead to the majority constantly voting on matters that negatively impact a minority group.
80
What are three characteristics of Domestic Law?
1. Operates within a sovereign state. The government of a particular country has a right to create positive laws, through a democratically legitimate process.
2. Has a single high court that provides a final and authoritative interpretation of the law
3. Is enforceable through a police force. The government has both the right and the power to use coercive force within its borders.
81
What are the 4 properties of International Law?
1. It is a series of agreements and customs between countries, as there is no global government or sovereign at this point in time.
2. Nation-states participate in international law on a voluntary basis if they have a mutual interest in regulating activities on the international stage for the sake of economic stability, protection, cooperation, human rights, and peace.
3. A myriad of international courts is used with a specific concern in mind, as some countries do not recognize some international courts.
4. Not easily enforceable as there is no international police force, with sanctions being the main measure used to enforce international law. However, this is usually ineffectual.
82
What is Realism in relation to International Law?
The world stage is seen as being analogous to the State of Nature since there is no supernational institution to enforce laws it might want to establish. International law is more of a guidebook than the law because there is no true authoritative body that can impose sanctions or really punish those who break international law. The main way that disagreements are settled is through war.
83
How can International Law be considered illegitimate?
Some argue that international law is democratically illegitimate because it bypasses crucial democratic processes. Democracy was based on a smaller group of people living in a common area that had many common interests. On a global stage, there are many different people with lots of distinct ideas, which leads to an absence of consensus. Democracy according to this viewpoint, hinges on social cohesion.
84
What is Constitutional Patriotism?
Constitutional Patriotism believes that Realism is obsolete because of globalization and multiculturalism, which has shown that we can bind people together despite their cultures. A shared sense of identity seems crucial to forming any sort of legitimacy towards international law. Some believe that a thin concept of solidarity is needed at the international level, which means that countries and people do not need cultural bonds or shared interests, with the only common ground needed at the global level being moral outrage.
85
What is Cosmopolitanism?
Cosmopolitanism is the idea that all people can and should be regarded as citizens of a worldwide community and should not identify solely with local political communities. What fundamentally unites all of us in a global political community is our humanity. In the Western tradition, our inherent ability to reason and to act morally is what united all people regardless of culture.
86
How is Cosmopolitanism viewed in Stoicism?
According to Stoics, all people are citizens of the cosmos which itself is ruled by a rational, moral order that encompasses everyone. All living people are a part of God, we are all citizens of a cosmic city. The highest goal for human beings is to live in harmony with the natural order of things. We ought to act with the interests of the whole in mind. For a stoic, as we get older, we move from only being concerned about ourselves to the wider community of people as a whole. This eventually grows to the whole world and all of humanity, in which we become concerned with the ways in which we can improve the global community.
87
In what ways does Hugo Grotius seek to define a practical guide for International Relationships?
He argues that municipal law has been studied heavily by scholars and the rules and regulations between states have been largely ignored; Grotius wished to rectify this. Grotius wanted to resolve disputes between nation-states through methods instead of war, which is the typical way to solve problems as there is no judge that can help solve disputes.
88
How does Grotius argue against Carneades and what does Carneades believe in?
He wishes to argue against Carneades, who states that law is rooted in custom rather than nature, varies from place to place, and that it changes over time. Furthermore, he did not believe in natural justice or law that could be applied universally, only mutual agreements made between people through self-interest. Grotius's response is to utilize the Aristotelian view of human nature that states we are naturally sociable.
89
What are the four pieces of evidence that point towards the Aristotelian view of human nature that states we are naturally sociable?
1. We commonly restrain self-interested behaviour
2. Children demonstrate spontaneous instinct for sympathy and benevolence
3. Human beings possess speech (Why would we need this if we did not have the desire to communicate and cooperate with others?).
4. We possess innate conscience or the knowledge of the general moral principles
90
How does Grotius define natural law?
The moral law is natural and therefore formulates natural law. God’s free will is another source of law besides nature. God is the ultimate source of morality, while our human nature is a proximate source of morality. Therefore, we have an obligation to obey its ideals because it is the ultimate source.
91
In what ways do we utilize laws according to Grotius? How does this relate to International Law?
Grotius argues that it is reinforced by self-interest or expediency, therefore it is natural for human beings to establish laws and governments and it is also prudent or advantageous for us to do so. This does not only hold true for individuals within society, but also for laws between sovereign states. It is irrational for a state to break international law even if they get away with it because it undermines the entire international order that the state relies on for security.
92
What are the 3 reasons we should obey international law according to Grotius?
1. Obeying international law brings a ruler peace of conscience
2. It allows him or her to acquire the approval of good people
3. God will judge him or her well in the next life.
