Foundations of Law and Morality

Rules of conduct

Guidelines for behavior to maintain social order.

Systems of Enforcement

Structures like courts and police ensure compliance.

Protection of Rights and Freedoms

Safeguards individual liberties like speech and privacy.

Protects Society

Laws prevent harm through criminal punishments.

Dispute resolution process

Structured processes for conflict resolution.

Morality

Differentiation between right and wrong actions.

Descriptive Morality

Code of conduct from a specific society.

Normative Morality

Universal codes of conduct independent of society.

Ethics

Study of human independence and moral relationships.

Independence

Essential for ethical decision-making and free thought.

Conditioning

Influence of societal pressure on individual thinking.

Applied Ethics

Practical application of ethics in real-world issues.

Public Morality

Regulated behavior deemed important for public good.

Private Morality

Individual conduct not concerning state or society.

Autonomy

Emphasis on individual rights in Western morality.

Negative Duties of Omission

Duties to refrain from harmful actions.

Positive Duties of Omission

Optional actions that promote societal good.

Duty-Based Morality

Eastern focus on obligations rather than rights.

Mandatory Duties of Omission

Obligatory actions like filial piety in cultures.

Group-Oriented Morality

Emphasis on fulfilling group obligations over individual rights.

Global Ethics

Cultural exchange influences ethics and public life.

Ancient Greek Philosophy

Motivation driven by desires for honor and glory.

Socrates

Justice applies equally to gods and humans.

Plato

Virtue leads to immortality of the soul.

Aristotle's Ethical Theory

Morality aims at achieving happiness through balance.

Natural Law

A system of rights and justice derived from nature rather than societal rules or positive law.

Universality

Applies to all people.

Unchangeable

Natural law is constant and unalterable.

Obligatory and Indispensable

Must be followed.

Recognizable

Can be known by all through human reason.

Aquinas and Divine Providence

Law is a rule of action created by one who governs a community (God).

Natural Goodness

Aristotle: Goodness is not based on desire but on what completes or perfects a being according to its nature.

Derivationism

We derive knowledge of basic goods through metaphysical study of human nature.

Inclinationism

Knowledge comes from the natural inclination to pursue life, knowledge, and other goods.

Positive Law

Human-made laws designed to govern behavior in a specific society.

Enforceable

Coercive power ensures compliance.

External Conduct

Focuses on behavior, not morality.

Historically Conditioned

Changes with time and culture.

Presumptive Obligation

Assumes a duty to obey the law.

Rule of Recognition

A secondary rule in legal positivism that validates a legal system and determines whether laws are followed.

Analytic Jurisprudence

Focuses on analyzing the essence of law.

Naturalism

There is an inherent link between law and morality.

Legal Positivism

Opposes naturalism; law is separate from morality, based on three core theses.

Social Fact Thesis

Law derives from social facts; developed by John Austin and H.L.A Hart

Conventionality Thesis

Law is shaped by social conventions.

Separability Thesis

Law and morality are distinct.

Normative Jurisprudence

Examines ethical issues in law.

Retributive theory of punishment

'An eye for an eye' - punishment serves as moral repayment.

Deterrence Theory of Punishment

Punishment deters future wrongdoing.

Preventative theory of punishment

Aims to prevent further harm.

Rehabilitative theory of punishment

Seeks to reform the individual.

Restitutionary theory of punishment

Focuses on resolving conflict between offender and victim.

Legal Realism

The theory that law is shaped by social, political, and personal factors, with judges using discretion and interpretation in applying it, rather than strictly following set rules.

Critical Legal Studies (CLS)

Argues that law reflects ideological struggles among social factions, favoring dominant groups.

Law and Economics

This theory uses economic analysis to understand legal rules.

Outsider Jurisprudence

Examines how the law impacts women and marginalized groups. (Feminist theory and critical race theory)

Legal Paternalism

The government acts like a parent, restricting freedoms for the individual's own good.

Why Obey the Law?

Arguments from Gratitude and Fair Play, Arguments of Implied Consent, and General Utility

General Utility

Obedience to law is necessary to maintain societal order and utility.

What are the five functions of law?

Establish rules of conduct, provide a system of enforcement, protect rights and freedoms, protect society, resolve disputes

What influences morality?

Upbringing, family, religion, culture, and philosophy

What are the five theories of punishment?

Retributive, deterrence, preventative, rehabilitative, restitutionary

Arguments from Gratitude and Fair Play

Society provides benefits through law enforcement, creating a duty to obey out of gratitude and fairness.

Arguments from Implied Consent

By benefiting from society, we implicitly consent to follow its rules.

What are the key properties of natural law?

Universality, unchangeable, obligatory and indispensible, recognizable

What is justice?

The principle that people get what they deserve

What are the characetistics of justice?

Equality, equity, the rule of law, presumption of innocence, due process, and open courts

What is justice in relation the law?

A legal structure or system designed to judge: who should be accorded a benefit or burden, when the law is applied to a person's factual circumstances

What must be present in justice?

Equity and equality

Liberalism

Political and moral philosophy based on the rights of the individual

Define equality

Laws and punishment should be similar regardless of a person's socioeconomic status.

Define equity

Treating people in a fair and impartial way

Define the rule of law

Everyone must obey the law and no one is above the law

Define presumption of innocence

innocent until proven guilty

Define due process

Everyone has legal rights; fair treatment through the judicial system

Define open courts

Everyone is welcomed to attend and rulings are made public

Utilitarian theory of justice

Requires the maximization of the total average welfare across all individuals

What are Kohlberg's stages of moral development?

Pre-conventional, conventional, and post-conventional morality