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The Philosophy of Law
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Critical Legal Studies
A movement that challenges and seeks to overturn accepted norms and standards in legal theory and practice. It is significant for its critique of the indeterminacy of law and its role in perpetuating social issues like hierarchy and inequality.
Social Contract Theory
The view that persons' moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live. This is significant as it underpins modern democratic governments and legitimizes legal authority.
Legal Realism
The perspective that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Its significance is that it focuses on how laws are actually applied and enforced rather than on their abstract formulations.
Feminist Legal Theory
An extension of feminist theory by examining the ways in which law is used to perpetuate male dominance and inequality. Its significance lies in the push for legal reforms that would promote gender equality.
Legal Formalism
The view that legal decision-making should be impartial and based strictly on logical deduction from clearly stated rules. Its significance is in promoting the idea of legal predictability and consistency.
Originalism
A principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment. Its significance is that it opposes the idea that the legal text should evolve in light of new circumstances and societal developments.
Rule of Law
A principle where all members of a society, including those in government, are considered equally subject to publicly disclosed legal codes and processes. Its significance lies in promoting fairness, justice, and predictability in legal proceedings.
Liberalism in Law
The political philosophy emphasizing the protection of individual rights and liberties by the rule of law. Its significance is in advocating for limited government intervention and the safeguarding of individual freedoms.
Utilitarianism in Law
A legal perspective that suggests laws should be fashioned so as to produce the greatest good for the greatest number. It is significant for its emphasis on societal welfare and consequentialist ethics in legal decisions.
Substantive Justice
The notion that justice requires more than just the fair application of laws and that the content of the laws must also be fair and just. It is significant for the critique of formal proceduralism and advocacy for the law's moral content.
Legal Interpretivism
The notion that legal reasoning must take into account the social context from which the law arises and not just the literal reading of legal texts. It is significant for promoting a dynamic and context-sensitive understanding of the law.
Communitarianism in Law
A philosophical stance highlighting the connection between the individual and the community in the crafting of laws. It is significant for opposing liberal emphasis on individualism and for advocating that communal values should shape law.
Procedural Justice
The concept that the law should provide fair and consistent processes to ensure fair outcomes. Its significance lies in the belief that fair procedures are the best guarantee for fair outcomes.
Natural Law
A body of unchanging moral principles regarded as a basis for all human conduct. In political philosophy, it is significant because it provides a foundational argument for certain rights and ethics being inherent and universal.
Marxist Legal Theory
A framework for understanding the law that asserts its nature as a tool for facilitating and maintaining a society structured by oppressive class relationships. Significant for advocating that the law will wither away in a classless society.
Habeas Corpus
A legal principle that requires a person under arrest to be brought before a judge or into court, ensuring protection against unlawful and indefinite imprisonment. It's significant for being a safeguard of individual freedom against arbitrary state action.
Legal Positivism
A theory that laws are rules made by human beings and there is no inherent or necessary connection between law and morality. Its significance lies in emphasizing the sovereignty of enacted laws over any moral arguments.
Restorative Justice
An approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Its significance is in the emphasis on healing and restitution rather than retribution.
Deontological Ethics in Law
The theory that laws should be grounded in duties and rights, regardless of the consequences. Significant in political philosophy for arguing that certain rights and duties are inviolable, even when violating them might have better overall outcomes.
Jurisprudence
The study of law and the principles upon which legal systems are built. It is significant for shaping the understanding, creation, and implementation of laws.
Legal Pluralism
The concept that multiple legal systems coexist within one geographic area, where the law administered by one group is not sovereign over others. It highlights the diversity of laws that can govern based on cultural, ethnic, religious, or social differences.
Civil Disobedience
The active, professed refusal to obey certain laws, demands, and commands of a government or occupying power, usually without resorting to violence. It's significant for its role in social movements and advocating for peaceful change.
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