Studied by 8 people
Mesopotamia (3000 BC)
as the only available intellectual framework that could provide a comprehensive understanding of the forces governing existence, religion ineluctably conditioned all aspects of ancient Mesopotamian civilization
no room for alternatives, governed all aspects of life
Ancient Egypt (2500 BC)
Law was believed to have been handed down to mankind by the gods, and the gods were held responsible for establishing and perpetuating the law
both derived from natural law, seen as perfect
natural law
universal (pertain to everything), cyclical (specific order (starting point = finish line)), unchanging (fixed)
eventually people noticed God can’t explain everything
Greece - first place to doubt
expansion (1500 BC → 200 BC) → natural law is not the sole cause for our evolution (humans play a role in lawmaking)
laws by Plato
book about the system of governments
Q: What governs life? → A: 3 forces
1. “ in human affairs chance is almost everything..” (beyond the control of the mortal man)
2. “… God governs all things…” (God-given (divine, natural) laws
3. “… the true legislator must from time to time appear on the scene…” (man-made (positive) laws
positive law is distinguished from divine law → people can plan their rules of conduct
Antigone by Sophocles
2 brothers (Eteocles and Polyneices) fight (E wins and P dies)
King Creon (father) → outraged Polyneices fought against his family → wants punishment after death
without a proper burial, the soul wanders and suffers forever (forbids burial of Polyneices)
Antigone (sister) → can’t let Polyneices suffer, will bury him
God-given laws are beyond our comprehension, eternal
Creon’s law can’t override God’s law + human lawis mortal and imperfect (God says burial → burial)
Plato hinted at 2 laws: positive and divine
natural and positive law → may be in conflict
Athens and Athenian Law
law= rules of conduct that govern a society
same laws apply within each class, not among them
A class society
citizens. metics, women and children, slaves
citizens
legislative assemblies (law-making bodies), magistrates (law-enforcing bodies), juries (bodies to decide legal cases)
males born in Athens with political power
metics
individuals not born in Athens but live there, males have rights but can’t perpetrate in politics
women and children
don’t have political rights
law =
a product of activities of Athenian citizens (a man-made, positive law)
every Athenian was subject to laws passed by the citizens (A degree of equality regarding law = Rule of Law)
limited to individuals within each class, not among classes
law should be
comport with positive and natural law (should be consistent)
solon
founder of Athenian democracy, statesman, lawmaker, poet (mythical, God-like persona)
citizens make laws → debate them → vote on them (majority rule applies) → write them down
send messenger with written laws to whoever guards the laws of Solon
in comport with? (yes - pass, no - scrap)
the laws of Solon
a ‘review process” to assure consistency between positive law and natural law
why did the Greeks come up with it?
system of checks and balances - not creating laws just for human benefit (keeping the morality)
law could become corrupt, make laws off human needs and desires than justice (should be)
way to assure rule is a good law (in accordance with perfect law) → psychological need to check
compare legality of laws with a “founding document” (Const)
The Greek Legacy
Good:
Recognition of positive law
equality before the law (Rule of Law, of sorts)
Bad:
law = a secondary consideration, just to live a good and happy life
a means of other (more noble) objectives
Classical Beginnings: Rome
bigger, more profound and longer lasting crack in natural law
the Roman Empire (117 AD)
Pax Romana (Roman Peace)
the whole Mediterranean world has been cast into the melting pot and had become in no small degree
a single community - an aggregate of people, close to each other, with something in common (relate to each other)
all the cultures are different, so is language
united by law (also proximity)
Cicero
statesman and lawyer
“the commonwealth is… the coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages
united by the virtue of accepting the same law
for the benefit of law → nowadays too
how does unity happen?
“True law is right reason in agreement with nature, it is of universal application, unchanging and everlasting; it summons to duty by its commands and averts from wrongdoing by its prohibitions
‘averts…’ → proscription
“summons…” → promotion of values (just like nowadays)
This way of thinking about law originated here
what is God the creator of?
the universal, everlasting, unchanging agreement
the author of this law, its promulgator, and its enforcing judge
law is valid for all nations and all people at all times
all people must obey the law
just like nowadays (the Rule of Law)
“True law is right reason in agreement with nature”
right reason - the ability to distinguish right and wrong, good and bad
law is telling us how to behave and how not to behave
Cicero: God possesses the right reason
Man (a human being), created by God, “is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while the rest are deprived of it”
Man can develop and attain the right reason
b/c the ability to learn is constant for all people,
“there is no difference in kind between man and man … there is no human being of any race who, if he finds a guide, cannot attain to virtue”
ability to understand right and wrong pertains to everyone
Greeks didn’t agree with this
just like nowadays (equality)
God gave people the ability to make laws (right reason)
the positive law
just like nowadays (social complexity)
types of law
1st typology of law ever recorded
ius civile, ius gentium, ius naturale
ius civile
“citizen law” (domestic law)
positive law
applies to the State where we live (private + public law)
ius gentium
“law of nations” (international law)
positive law
ius naturale
“natural law” (natural law)
natural law
beyond our comprehension, God-made
positive law … comport with … natural law
romans found how to make them compatible
cicero says God is the right reason (smart, perfect, created us as a society) + people
says there is potential what we do can approximate what God does (new idea)
the positive law (ius civile and ius gentium) can comport with the natural law (ius naturale) → MORALITY
think about law mostly in terms of right and wrong
morality
there is only one type of law in its moral direction (same direction)
we have multiple laws but only one truly moral
praetor
one who “goes before the others”
use law to speed up law (cases resolved quickly)
is a soldier/ government member that enforces the verdict
will meet with and listen to both parties
goes to court and says which verdict to render
judge will ponder and agree, disagree, edit
praetor tells verdict to both parties (what the judge decided and how it’ll be enforced)
acts as a gatekeeper, streamlines the process (still exists today in Moldova)
the Roman Legacy
law = a primary consideration (key to the unity of the empire)
legal equality among ..
specialized legal profession
branches of law
positive law consistent with natural law
christianity
a sect of people (religious community - known as the Church) who believed in the rules of Jesus)
all around the world, united by the belief that life really matters not in the present but in the unknown future after death
officers to administer religious beliefs → priests + clergy
have a hierarchy among administrators
create fixed place of worship (Church)
Realized they had to take into account the presence of another institution: the State
Gelasius
most influential thinker of his time
“the Pope (head of church) but interacts with the State and the heads of State, how to stop conflict? → DOCTRINE
Gelasius: Doctrine of Two Swords:
ecclesiastical and political
ecclesiastical sword
(spiritual) religious authority → spiritual development of individuals
superior on spiritual matters
political sword
political authority (secular power)
state is superior as far as its political authority is concerned, organizing and administering life on Earth
both swords…
are independent of each other
recognize each other’s power but also want to be independent
both recognize that all power derives from God in both laws
john of salisbury (1115/20-1180)
politician, bishop, diplomat, medieval intellectual
says society need rules of conduct, but society should be the starting point
implies that all of us have a bit in common: feet, stomach, intestines, hands, heart, ears, eyes, tongue, and head
society is like a human organism, different classes perform different functions
different functions of the human organism
feet - husbandmen, (do physical labor)
intestines/stomach - financial officers and keepers of the privy chest
hands - officials and soldiers (to defend, safe and organized)
heart - the Senate (advisory body)
ears/eyes/tongue - judges and governors of provinces
head - the prince
soul
the ministers of God’s holiness
we as individuals have a soul, is what makes us different
intuitive but very informative
the rules of conduct
define law - the soul of society
“Law is the gift of God, the model of equity, a likeness of the divine will, a guardian of well-being, a bond of union of solidarity between peoples, a rule defining duties, a barrier against the vices … a punishment of violence and all wrong-doing”
equity
‘like” right reason
“A certain fitness of things which compares all thing rationally, and seeks to apply like rules of right and wrong to like cases”
God (rules of conduct)
the divine law (Supreme) - only way to decide right from wrong
where is the positive law? not the dominant way of thinking
the centralized authority
the Clergy (supreme)
“Since the soul is… the prince of the body, and has rulership over the whole thereof, so those [who are] the prefects of religion preside over the entire body”
define and interpret the meaning of God’s law
represent God on this planet
where is the head?
no room
“one who exercises that side of the sacred offices which seems unworthy of the hands of priesthood”
have to be performed, below the need of the clergy
typified in the person of the hangman (lowest of all political beings)
John of Salisbury (The Statesman’s Book) → God is the right reason, but we are his creation and he gave the ability to compare, contrast, and think rationally to understand what’s right and wrong
choices → have an effect
we want to make the effect but its complicated
our choice is needed to bring opinion
likely to have unpleasant side effects (that’s just life) → spelled out in the Doctrine of Double Effect
the Doctrine of Double Effect
by Thomas Aquinas
actions b/c you made choices have two effects:
the good effect (desired, intended)
the bad effect (inevitable, usually a side effect)
creates a dilemma about what to do
the four fundamental question: doctrine of double effect
is the action you contemplate morally good?
do you intend the good effect?
is the good effect (not the bad effect) a result of your action?
is the good effect sufficiently desirable to compensate for the bad effect?
with four checkmarks, do the action
look at the nature of the act
liberalism and its liberties
a breakthrough from old traditions, personified by the period known as the Renaissance
rediscovered buried Greek and Roman writings, look to reuse them (rediscovered who we really are, how different we all are, should take into account individuals when looking at the world)
a time of changes in society (religion, politics)
Marsilio of Padua
physician by occupation, student of law, philosopher
writings about law will set the stage for things to come
“we are reaching the point of no return, need to change our thinking about law”
studied law in Paris → aware of the tradition of law
focuses on the human being (was a doctor → his knowledge is very practical, was a great communicator)
says divine law and human law co-exist
how human and divine law co-exist (Marsilio)
“Divine law is a command of God directly, without human deliberation … for the sake of attaining the best end … in the world to come”
Source: divine, natural law
hard for us to understand divine law, can’t penetrate the wisdom of the divine
Relation: have right reason, but can also develop the right reason
“in this world to come” - Christians focus primarily on the afterlife, divine law applies exclusively to afterlife
Whose domain is it: the ecclesiastical auth.
how human and divine law co-exist (Marsilio) (human law)
“Human law is a command of the whole body of citizens …, arising directly from deliberation of those empowered to make law … for the sake of attaining the best end … in the world”
Source: positive law (the whole body of citizens)
is subject to deliberations (voting)
Relation: “in the world” → if you are alive, you are subject to human laws
whose domain is it: secular authority
both divine and human law can be experienced/ enforced through punishments
divine law punishments → go to heaven/ hell
ecclesiastical authority technically has no power over you, God will actually decide (saying Clergy and church have no power over you if you live on this planet)
human law punishments → done by secular authority
saying the divine law that is punishments is irrelevant as you live on this planet, you should focus on human, positive law
next stage: enlightenment
REVOLUTIONARY MOMENT
an intellectual period that builds on the Renaissance
focuses on human rather than divine or supernatural matters
focuses on INDIVIDUALISM, paved the way for liberalism
liberalism is now possible → on one hand, you have a society and on the other hand, you have centralized authority
can exercise a lot of power and subdue society
liberals need to find a way to validate the importance of the individual in law
what should the relation between society and centralized authority be so the authority can’t subdue society?
liberalism
liberalism def
founded on the belief that individual freedom should be the basis of a just society
liberty of the individual freedom = a just society
law = how to check political power (the central authority)
based on the moral argument that ensuring the right of an individual person to life, liberty, and property is the highest goal of government
need to create a check on political power so its not used in any arbitrary fashion
liberalism continued
enhancing the liberty of the individual
liberty
right to do whatever you want
how to enhance individual liberty? → ex. Mr. A makes shoes for Mr. B but gets nothing in return. Mr. B walks off with shoes (no fees for service, assume but didn’t talk about it)
people need political liberty
how can one assure that Mr. A will make the “right” law?
the individual is the author and the subject of the law
Mr. A will not make laws (as the author) that may be harmful to him (as the subject)
political liberty
determining, collectively, the rules of conduct
people ought to be involved in the decision-making process
how to prevent those who govern from restricting individual liberty?
why is it called “political” liberty?
b/c it involves participation in the political process
“Liberty can consist only in the power of doing of what we ought to will”
doing the right thing
Supreme Court upholds Section 2 of Voting Rights Act
Facts: after the 2020 census, Alabama created a redistricting plan for its seven seats in the US House of Representatives. One of the districts in the plan is a majority-Black district. Registered voters and several organizations challenged the map, arguing that the State had illegally packed Black voters into a single district while dividing other clusters of Black voters across multiple districts.
Legal Question: Does Alabama’s 2021 redistricting plan violate Section 2 of the Voting Rights Act?
Opinion: Alabama’s redistricting map likely violates section 2 of the Voting Rights Act
ex. with Mr. A (legal liberty)
Mr. A should be permitted to do whatever is not prohibited
“Liberty is a right of doing whatever the laws permit” (Montesquieu)
legal liberty
doing as one pleases while knowing the rules of conduct
do what you want as long as it’s not proscribed by the law
hurting people is the limit on legal liberty
keeping society and govt in bounds
the government - the centralized authority needs to act in agreement with law
individuals - one can predict when individuals will be subject to coercion meted out by the State, so they can adjust their conduct accordingly
e.g., right to contract, to marry, to inherit, to be safe, etc (living in a society → SOCIETY)
Supreme Court preserves Medicaid recipients’ right to sue
Facts: Gorgi Talevski, an elderly male with dementia, was receiving care at Valparaiso Care and Rehab, a state-run nursing facility in Indiana. His wife filed a lawsuit on behalf of her husband alleging that Valparaiso Care failed to provide Gorgi with adequate medical care and use psychotropic medications as unnecessary chemical restraint.
Legal question: may individuals who depend on initiatives that are funded in part by the federal government (such as Medicaid) file federal civil rights claim for violation of the Federal Nursing Home Reform Act (i.e. sue state-run nursing facilities when their rights are violated)?
Opinion: a plaintiff may file federal civil rights claim for violation of the Federal Nursing Home Reform Act
Ex with Mr. A (personal liberty)
in addition to legal liberty, we need personal liberty
prevents third parties from interfering
personal liberty
having the minimum amount of autonomy
prevents all the other 3rd parties from interfering
“freedom to pursue, to one’s physical space, to intimacy, to solitude, etc”
reference point - being an individual (INDIVIDUAL)
Supreme Court ruling strengthens privacy/uses of heat-sensing device outside home requires search warrant
Facts: a Department of the Interior agent, who suspected Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his home (without court warrant). Based on thermal imaging (as well as informants and utility bills), a federal judge issued a warrant to search Kyllo’s home. The search unveiled growing marijuana.
Legal question: Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the 4th Amendment? (right to privacy)
Opinion: Targeting a home with a thermal imager by police officers (i) is a search under the 4th amendment and (ii) is presumptively unreasonable without a warrant
the 3 types of liberties
3: political, personal, and legal (anything in life touches directly upon one of these categories if you have free will)
ability to do a good thing with your life and someone else’s life
limitations (safety for everyone)
as far as laws are concerned, we are the beneficiaries of liberalism
liberalism examples → restrictions
political: right to vote → must be 18 in the US
legal: ability to drive a car → speed limits
personal: ability to have a family → women aren’t allowed to have an abortion
Substance of law (substantive considerations)
substance - regarding the content, rightness of law, established principles of law, body of rules that determine rights and obligations
WHAT law says about our rights
e.g., freedom to devise one’s own family life, possess arms
procedure of law (procedural considerations)
procedure - regarding the methods, standards of the legal process, manner of proceeding, rules that govern legal procedures
HOW our rights are enforced
e.g, how evidence was obtained: was the evidence collected illegally?
if so, it;s not admissible and can’t be used in a trial
BOTH AFFECT THE OUTCOMES OF THE CASE
State of Washington, State of Minnesota v. Donald J Trump (2017)
Facts: on Jan 27, 2017, the president issued Executive Order 13769, “protecting the Nation from Foreign Terrorist Entry Into the US”. The Executive Order made several changes to the policies by which non-citizens may enter the US in order “to protect Americans [and] ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”
suspended the refugee admission for 120 days and Syrian refugee admission indef.
lowered the number of refugees to be accepted to the US from 110,000 to 50,000
banned entry from 7 majority-Muslim countries and temporarily, entry to dual-nationals from those countries
The states of Washington and Minnesota filed a lawsuit intended to declare that the selected sections of the Executive Order were unconst.
Legal question: Are the selected sections of the Executive Order (re: refugees, permanent residents, and visa holders) unconstitutional?
issues at stake: procedural issue
The President issued the executive order pursuant to his powers under federal law: “Whenever the President finds that the entry of any aliens and …
Q: Did the Government have the authority to issue Executive Order 13769?
A; Yes, it did à Donald J. Trump
The President has the constitutional authority to regulate the influx of immigrants (re: discretionary powers)
The President’s decisions to suspend the admission of any class of aliens are unreviewable by courts: (re: the separation of powers)
issues at stake: substantive issue
The government contended that the country would be harmed unless the order was implemented and the US “cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.”
Q: Did the Government demonstrate that the Executive order 13769 was warranted? (i.e., Did the Government demonstrate that any alien from any of the countries named in the Order had perpetrated a terrorist attack in the US?
A: No, it did not à State of Washington, State of Minnesota
The President should act in public interest; otherwise, the President’s decision could cause “irreparable harm” (re: the purpose of public law)
There must be evidence to prove that the Executive Order had to be enacted immediately (re: the denial of constitutional rights)
Opinion of Trump v. Minnesota, Washington
Opinion: Restricting travel from several majority Muslim countries to the US was constitutional
The President’s travel restriction fell directly within the President’s authority (i.e., the President did not exceed any limit of the President’s authority)
Viewed only in procedural
3 parts of liberalism and where they’re used
Political, legal, and personal liberties = foundations of rights à how to prevent those who govern restricting individual liberty? (Law = rules of conduct that govern a society that require the presence of the centralized authority)
Shouldn’t allow one part of the state to have to much power à divide
What’s needed? The government that is horizontally divided into 3 separate branches: (just like nowadays…)
Legislative power – power to make laws
Executive power – power to enforce the laws
Judicial power – power to decide questions about laws
“There would be an end of everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the cases of individuals” (Montesquieu)
“There is no liberty, if the judiciary power be not separated from the legislative and the executive” (Montesquieu)
conservatism
enhance liberty of the individual (not polar opposite of liberalism)
No man is above law (law should apply equally to everyone)
Everyone should be held accountable in the court of law
Rule of law = law applies equally to all (just like nowadays)
Punishment can be meted out only if:
Law has been breached (there can be no punishment without a preexisting law)
Such occurrence has been corroborated by the court (only the court has the power to determine whether the breach of law took place)
Just like nowadays (punishment should not be applied arbitrarily)
liberalism proved successful
Artisans have more liberties, can release their creativity
But it created drastic social and economic inequalities
Was morally bankrupt
Created a huge underclass of the working poor who barely lived at the sustenance level (appalling working conditions, hours, lack of safety net)
These people were not given a chance
Q1: How to redress social and economic inequalities?
A1: Law could be used to redress the problems of poverty and economic inequalities
functions of law
law = the rules of conduct that govern a society that require the presence of the centralized authority
Collective, Group Benefits - creating and allocating benefits = a function of law
we as a group share something in common → big change to collective rights and benefits
Q2: Who was to protect collective interests of social groups
A2: The State (the centralized authority) à Social Welfare State
The government/state was to play a central role in promoting and protecting the well-being of citizens
shift in Liberalism
Shift in Liberalism
Classical Liberalism (individual liberties)
Modern Liberalism (collective liberties)
Clash: two ways of understanding law
·Conservatism: a reaction to the evolution of Liberalism (hostile reaction to modern Liberalism)
conservatism (opinions of liberalism)
1. Conservatism = modern liberalism violated the very premise of the Rule of Law
The same laws should apply to each and every individual
Picking out groups such as unemployed (will they have special rights that protect their well-being?), disabled, elderly, students
Conservatives are saying the same law should apply equally to each and every one of us (what if rules of conduct don’t apply to everyone?)
Different laws will govern you based on your station àModern liberal understanding of law will violate the rule of law
2 Classical liberalism → modern liberalism:
Conflicts between individuals over individual concerns (PRIVATE LAW and private citizens) à conflicts over larger social/public concerns, conflicts that involved the government (focus on PUBLIC LAW)
Private law is the best guardian of rights (should be used over public law)
Conservatives believe private law should be the default of life PERIODT)
Lockner v. New York (1905)
Facts: the state of New York enacted a statute (the New York Bakeshop Act of 1897) limiting working hours of bakers to 60 hours per week (10 hours per day)
Gives bakers rights will now be permitted to work more than 60 hours a week
Lochner says his bakers will work as much as he wants them too
Question: Did the New York law violate the liberty protected by the 14th Amendment?
“nor shall any State deprive any person of liberty… without due process of law”
What reasonable restrictions can we impose?
Opinion (5-4): Yes, it did violate… the Supreme Court invalidated the Bakeshop Act
Conservatives endorses this (rule of law (check))
The private law (Solution when privacy has been
Private law is a better option for equality
Muller v. Oregon (1908)
Facts: the state of Oregon enacted a law that made it illegal to employ women in any mechanical establishment, factory, or laundry for more than 10 hours per day
Question: Did the Oregon law violate the liberty protected by the 14th amendment?
“nor shall any State deprive any person of liberty… without due process of law”
Opinion (9-0): no, it did not violate, … a woman’s physical well-being justified the “Special legislation restricting… the conditions under which the should be permitted to toil
Conservative interpretations:
The Rule of Law
The private law
Public law more helpful in this
ex. with Mr. A/X, Mrs. B/Y, and Mr. C
Mr. C (judge) reviewed the facts and issues - and opined that:
Mrs. B was to be convicted of theft, and the apple was returned to Mr. A
Apple tree is gone from storm, a new orange tree is in its place
Mr. X (plaintiff) spots the orange tree and takes an orange. Mrs. Y (defendant) also wanted the orange so she just took it from him.
Mr. Z (judge) - who has the right to ownership?
Judge Z will look at the facts and issues from the case of Mr. A and Mrs. B
similar facts and issue → similar opinion (Mr. X gets the orange)
Judges issue opinions based on societal expectations while applying general legal rules? (rules/procedures)
STEP 1: Judge looks for patterns between past cases and the current case (related to common law)
current case: facts + issues/ questions
past case: facts + issues/ questions
STEP 2: if they are similar, look at the opinion in the past case
obligated to use the same opinion
“Stare decisis’
‘ let the decision stand’
what common law is based on
what if the judge doesn’t agree? they can exercise digressions?
past case: US v. Ross, 1982
Facts: Acting on a tip, the police pulled over a car driven by Albert Ross, suspecting that Ross was selling drugs from his car. Police discovered a brown bag with heroin in the trunk.
Issue: Did inspecting a closed paper bag violate the 4th Amendment rights protecting against ‘unreasonable” searches”?
Opinion: The search of a bag found in the car did not violate the defendant’s 4th Amendment rights.
Probable cause? – a tip from a reliable source
Unreasonable search? – the bag could contain contraband
current case: Wyoming v. Houghton 1999
Facts: A car with Sandra Houghton was pulled over by the police. A police officer noticed a needle used for drugs and searched Houghton’s purse. Inside, he found more drug paraphernalia.
Issue/Question: May police officers inspect personal items (a purse) without violating the 4th amendment protections against “unreasonable searches”?
“ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause”
Opinion: The police action did not violate Houghton’s 4th Amendment rights.
Probable cause? – a needle noticed by the police
Unreasonable search? – the purse could contain concealed items
if a case doesn’t exist, and you’re a judge
Q: What’s if a precedent doesn’t exist?
A: A judge should issue an opinion that would garner the most successful societal support
Note 
Flashcard (82)