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Mod 2 - Classic And Modern Natural Law Theory Flashcards

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1
Q

What is the essence of natural law theory?

A

Natural law theory posits that law must be understood as a practical application of morality, connecting law and morality intimately.

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2
Q

What moral justification has natural law provided for existing systems?

A

Natural law has afforded a moral justification for existing social and economic systems and their legal systems.

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3
Q

How does natural law theory relate to positive law?

A

Natural law theory suggests that positive law reflects higher moral laws dictated by reason, giving it a sanctity that may be beyond question.

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4
Q

What significant change occurred in the perception of natural rights during the 19th century?

A

The revolutionary potential of natural rights diminished respect for natural law and natural rights during the 19th century.

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5
Q

What challenge did legal positivism pose to natural law?

A

Legal positivism denies that law is merely applied morality, asserting that laws can be wicked and that morality is often controversial.

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6
Q

What is the main philosophical stance of legal positivists?

A

Legal positivists view the philosophy of law as a philosophy of a social institution, not a branch of moral or ethical philosophy.

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7
Q

What is the original meaning of ‘natural law’?

A

‘Natural law’ originally referred to a general moral theory explaining morality, not the nature of law itself.

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8
Q

What role does reason play in the concept of natural law?

A

Natural law is based on the idea that man, through reason and possibly divine revelation, can understand how to act rightly.

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9
Q

What did Cicero argue about justice and natural law?

A

Cicero argued that justice and injustice are distinguished naturally and that there is one eternal law valid for all nations.

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10
Q

What is the Latin maxim associated with the extreme view of natural law?

A

The maxim is lex injusta non est lex, meaning an unjust law does not count as law.

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11
Q

How do positivists view immoral laws?

A

Positivists argue that immoral laws are still laws if validly passed, even if they are wicked.

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12
Q

What was Thomas Aquinas’s contribution to natural law theory?

A

Aquinas reconstructed classical natural law within Christian theology, emphasizing that God’s grace perfects rather than abolishes human nature.

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13
Q

List the orders of law described by Aquinas.

A
  • Eternal law
  • Natural law
  • Human law
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14
Q

What is eternal law according to Aquinas?

A

Eternal law is the ultimate order imposed by the Creator, governing the whole universe.

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15
Q

What does natural law represent in Aquinas’s framework?

A

Natural law represents man’s participation in divine wisdom through reason and free will.

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16
Q

What is human law in the context of Aquinas’s theory?

A

Human law consists of specific rules deduced from natural law to address particular matters.

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17
Q

Fill in the blank: The Stoics believed that man could determine precepts of right conduct through _______.

A

reason

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18
Q

True or False: Natural law theory suggests that the law is always aligned with morality.

A

False

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19
Q

What philosophical tradition began with Socrates, Plato, and Aristotle?

A

The philosophical tradition that addressed how man ought to live, seeking a common morality.

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20
Q

What is the significance of the jus gentium in natural law theory?

A

Jus gentium was regarded as a higher legal order akin to international law, applying universally across the Roman Empire.

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21
Q

What tension did Grotius introduce regarding natural law and God’s will?

A

Grotius argued that right conduct is not good simply because God willed it, suggesting natural law would be valid even without God.

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22
Q

What did Cicero imply about disobedience to natural law?

A

Disobedience to natural law is seen as fleeing from oneself and denying one’s human nature, leading to suffering penalties.

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23
Q

How did the natural law tradition address cultural clashes?

A

It provided a universal standard of justice to govern diverse peoples with different customs.

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24
Q

What is the relationship between natural law and morality in the context of legal positivism?

A

Natural law theorists must show a plausible connection between law and morality in response to positivist critiques.

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25
What is natural law according to Aquinas?
Natural law is participation in the rational order ordained by God through human reason. ## Footnote It reflects the moral order that humans can discover through reason.
26
Define human law.
Human law consists of specific rules and regulations deduced from natural law to address particular matters. ## Footnote It is also referred to as positive law.
27
What is divine law?
Divine law is the law revealed by God to man, including the Ten Commandments and scripture. ## Footnote It governs man's relationship with God and includes moral obligations.
28
How does Aquinas differentiate between human law and natural law?
Human law specifies particular applications of natural law, while natural law provides general moral principles. ## Footnote This distinction is explained through the concepts of specificatio (specification) and determinatio (determination).
29
What is the role of reason in human law according to Aquinas?
Reason is used to deduce specific rules from natural law and to determine the application of these rules in society. ## Footnote Reason allows for the adaptation of laws to fit human circumstances.
30
True or False: According to Aquinas, an unjust law is not a law at all.
False. An unjust law still retains the form of law but is characterized more by violence than by justice. ## Footnote Aquinas acknowledges that unjust laws exist within the framework of law.
31
What is the significance of custom in human law?
Custom provides legitimacy to human laws and should not be changed too frequently or radically. ## Footnote Frequent changes can diminish the law's authority and acceptance in society.
32
Fill in the blank: Aquinas believes that a law only 'obliges in conscience' if it is in keeping with _______.
[natural law]
33
What are the two types of laws described by Martin Luther King Junior?
Just laws and unjust laws. ## Footnote Just laws align with moral law; unjust laws do not.
34
What does a just law do according to King?
A just law uplifts human personality. ## Footnote Conversely, an unjust law degrades human personality.
35
What is the social contract theory?
Social contract theory posits that individuals agree to form a society, relinquishing some freedoms for security and order. ## Footnote This concept underpins the legitimacy of political and legal authority.
36
Identify two philosophers associated with social contract theory.
* Thomas Hobbes * John Locke ## Footnote Each philosopher offers different views on human nature and the state.
37
What was Bentham's view on natural rights?
Bentham considered natural rights as 'nonsense on stilts'. ## Footnote This perspective emerged in response to the excesses of the French Revolution.
38
How does John Finnis approach natural law theory?
Finnis seeks to address objections from legal positivism while emphasizing the connection between law and morality. ## Footnote He argues that positivism is fundamentally flawed.
39
What challenge must modern natural law theorists address?
The challenge of moral skepticism, which questions the existence of universal moral truths. ## Footnote This skepticism poses a significant obstacle for establishing objective moral standards.
40
What is the relationship between law and morality in Aquinas's view?
Aquinas sees law as a reflection of moral order, with human law needing to align with natural law for legitimacy. ## Footnote This connection emphasizes the moral purpose of laws in society.
41
True or False: Aquinas believes that human law should cover every vice and insist on every virtue.
False. Human law should not be a counsel of perfection but should focus on maintaining a flourishing human community. ## Footnote The law's task is to provide a framework for conduct, not to create a utopia.
42
What is moral scepticism?
Doubt about universal moral truths ## Footnote Moral scepticism challenges the existence of objective moral standards.
43
Why is moral scepticism significant for natural law theory?
If moral scepticism is true, natural law theory is hopeless due to lack of objective moral standards ## Footnote This highlights a philosophical challenge for natural law theorists.
44
What is the fact/value distinction?
The distinction between descriptive statements and evaluative or prescriptive statements ## Footnote Example: Descriptive - 'Elizabeth II is Queen of England'; Evaluative - 'Killing the innocent is wrong'.
45
What did David Hume famously state about deriving 'ought' from 'is'?
'One cannot derive an 'ought' from an 'is' ## Footnote This addresses a core issue in the fact/value distinction.
46
What is the 'naturalistic' fallacy as defined by G.E. Moore?
The fallacy of deriving moral principles from factual statements ## Footnote Example: Inferring that women ought to bear children from the fact that they can.
47
How does Finnis respond to the claim that natural law derives 'ought' from 'is'?
He denies that the natural law tradition is founded on this derivation; values are grasped directly ## Footnote Finnis asserts that natural law theory is based on appreciating values directly.
48
What are the seven basic values according to Finnis?
* Life * Knowledge * Play * Aesthetic experience * Friendship * Religion * Practical reasonableness ## Footnote These values are seen as fundamental to human flourishing.
49
Can Finnis's basic values be reduced to a more fundamental value?
No, they are irredeemably plural and incommensurable ## Footnote One value cannot be directly measured against another.
50
What is Finnis's view on the purpose of law?
To regulate affairs of people and contribute to a flourishing community ## Footnote Law should help individuals realize the seven basic values.
51
What does Finnis mean by the 'focal' concept of law?
A multifaceted conception of law as rules and institutions aimed at realizing basic values ## Footnote This contrasts with the ordinary, more diffuse concept of law.
52
What are Fuller's eight principles of the morality of law?
* Operate by general rules * Must be published * Operate prospectively * Reasonably clear and intelligible * Not contradictory * Do not change radically * Do not require the impossible * Administered according to meaning and purpose ## Footnote These principles emphasize the requirements for just law-making.
53
What criticism does Hart make of Fuller's principles of legality?
They blur the distinction between purposive activity and morality ## Footnote Hart argues that Fuller's principles focus on effective law-making rather than moral considerations.
54
What is the main focus of Fuller's procedural natural law theory?
Explaining the moral content in the idea of 'the rule of law' ## Footnote Fuller emphasizes governance by rules rather than substantive moral assessments.
55
What is the connection between law and morality according to the continuing debate?
It's a deeply contested question in Western philosophy ## Footnote Different theorists like Hart and Dworkin address this connection from various perspectives.
56
What is the significance of the moral project in Finnis's natural law theory?
It connects moral philosophy with legal philosophy through the purpose of law ## Footnote Finnis believes moral views inform the understanding of law.
57
What role does moral theory play when judges decide cases?
Moral theory influences judges' decisions, providing a framework for evaluating the morality of laws and legal outcomes. ## Footnote This involves considerations from various natural law theorists, including Finnis and others.
58
Why can sample or model answers be detrimental in teaching jurisprudence?
They suggest that there is only one right way of answering a question, limiting creativity and originality in responses. ## Footnote This can discourage imaginative thinking and unique perspectives from students.
59
What should the opening paragraph of a jurisprudence answer accomplish?
It should have impact, clearly setting out the intention and direction of the answer succinctly.
60
What is the purpose of the centre section in a jurisprudence answer?
It contains arguments that back up the writer's views, demonstrating knowledge and independent thought.
61
What should a summing up in a jurisprudence answer include?
A neat summary of the writer's view that reflects the argument made in the answer without mere repetition.
62
What are the desirable qualities of a jurisprudence answer?
Knowledge, independent thought, ability to argue, and capability to cross-reference ideas and writers.
63
What is the significance of using examples in a jurisprudence answer?
Examples demonstrate awareness that jurisprudential questions must be tested against real-life scenarios.
64
What does traditional natural law theory regard natural law as?
A 'higher' law by which positive law is to be judged.
65
How is natural law content viewed in relation to morality?
The content of natural law is as controversial as morality itself, being influenced by individual moral perspectives.
66
What are the criticisms of the connection between law and morality in natural law theory?
The law appears more settled than morality, suggesting a weak connection; positivists argue that law only needs to respect basic human nature. ## Footnote This includes laws against murder and theft but does not extend beyond basic moral considerations.
67
What does Finnis aim to achieve in his interpretation of natural law?
He seeks to preserve the critical perspective of natural law while addressing the moral project of law.
68
What is Fuller's focus in his natural law theory?
He emphasizes process over content, leading to less dramatic oscillation between reform and conservatism over time.
69
What does the question about the relevance of natural law theory require exploration of?
The contemporary relevance of natural law theory, particularly the theories of Finnis and Fuller, and their resistance to positivism.
70
What is a potential criticism of natural law theory in a secular age?
It may be undermined by moral relativism and philosophical skepticism.
71
What is the 'naturalistic fallacy' in the context of natural law?
It refers to the error of deriving moral principles from natural facts, which Fuller may commit through his principles of 'inner morality of law'.
72
What should you be able to describe regarding the origins of natural law?
The origins of natural law in ancient Greece and Rome and the basic ideas that inform the natural law tradition.
73
What key aspects should be explained about Aquinas's natural law theory?
The relation of natural law to divine law and human law, and the importance of specificatio and determinatio in law generation.
74
What are important elements of Finnis's modern natural law theory?
The 'focal meaning' or 'central case', self-evident basic values, and the characterization of practical reason.
75
What should be critically assessed regarding various versions of natural law theory?
Their validity in light of critiques from legal positivists.

Juris (9 decks)

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