Law and Politics Test
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151 terms
Terms | Definitions |
|---|---|
 social control | device that establishes norms to guide individual and group behavior |
| due process | the core of our constitutional provisions; demands all people understand what the law requires of them and the consequences for breaking the law |
| informal norms | social controls that are self-imposed by the individual |
| folkways | informal norms that are part of day-to-day living and guide dress, patterns of speech, and interaction with others |
| mores | informal norms that are based on common values and establish rules for moral behavior; more intensely held |
| private property rights | the claim of individuals to make decisions about real property and personal property in which they have an ownership interest |
| criminal due process rights | those rights that protect individuals against arbitrary and unreasonable actions taken by the government in enforcing the criminal code |
| formal norms | social controls that are imposed on the individual by some outside actor- either a nongovernmental entity, or a governmental control, known as law |
| proportionality | the requirement that the punishment fit the crime, that is, that it be neither too lenient nor excessive |
| criminal law | law whose primary goal is the protection of persons and property and maintenance of public order; government is the central actor |
| civil law | law whose primary goal is the enforcement of rights and obligations usually between private entities |
| rehabilitation | a controversial goal of criminal justice system that gives ways to provide services to criminals to improve their lives |
| retribution | the oldest goal of criminal law; based on the principle to use harsh physical crime to wrongdoer |
| incapacitation | goal of criminal law that aims to protect society by putting criminals in jail for certain period of time or sentence them to death |
| punitive restitution | goal of criminal law that focuses on both punishment and compensating the victim |
| deterrence | focuses on using punishment to dissuade the individal or public from committing the crime in the future; making an example of the criminal |
| government | whose role is more limited in criminal law? |
| civil disobedience | the view that individuals have no obligation to obey laws that they deem unfair or unjust |
| mala in se | acts that are viewed as evil in themselves, like murder and rape |
| mala prohibita | activities that are prohibited by law but about which there is substantial societal disagreement; "victimless" crimes |
| vigilante justice | actions by persons outside of government who step in to ensure order and the protection of life and property |
| Brown vs. Board of Education | Supreme Court case that called for the desegregation of schools but was unsuccessful |
| law | rules of behavior that are written down by some governmental body and are backed by the threat of the government |
| normative theories of jurisprudence | theories of law that focus on how law should function |
| theories of jurisprudence | theories that define what law is and how it functions |
| empirical theories of jurisprudence | theories of law that examine how law actually does function |
| natural law | normative legal theory that argues that law should be based on religious or philosophical principles |
| positive law | a form of normative legal theory that focuses on the law as it is written and the process by which law is made |
| Aristotle | first normative theorist; believed that laws should be measured against justice |
| divine law | infallible law that is God-given and has only to be discovered by human beings |
| St. Augustine | focused on the laws as divine law |
| St. Thomas Aquinas | theorist that believed law was either evil or divine; believed that only just laws have to be obeyed |
| modern natural law theory | the belief that the government should ensure individual rights and liberties |
| Oliver Wendell Holmes, Jr. | judge that rejected the way judges were using natural law principles to decide cases; judges should instead be pragmatic and work with legislators |
| procedural naturalism | theory that legal systems are legitimate only when they respect individual autonomy |
| Lon Fuller | writer that said Nazism laws were not guided by values truth or reason but the exercise for power; created the theory of procedural naturalism |
| "Rights Revolution" | during the 1960s the civil rights movement led the way of the attempt to broad people's protection of rights |
| Ronald Dworkin | natural law theorists who argued that law must be evaluated based on integrity and reliance on past decisions |
| legal positivists | theorists who promote the codification of laws and argue that society is best served by having written laws that are explicit and clear |
| Sir Edward Coke | argued against the divine right of kinds and for written law; the laws of Parliament should be ranked higher |
| Sir William Blackstone | write the "Commentaries on the Law of England" that compiled British judge's holdings and focused on making the law uniform |
| code law | law made by legislators |
| historical jurisprudence | views that law and legal institutions as evolving into the written code of law |
| sociological jurisprudence | theory that law is the product of social, political, and economic realities and can be used to bring about a better society |
| greatest happiness principle | basis of theory of utilitarianism; argues that law should benefit the greatest number of people |
| utilitarianism | premised on the understanding that las should deliberately be crafted by legislators and follow the principle of social utility |
| analytical jurisprudence | theory that rejects natural law and argues that the only rights we have are those that are given to us by the government |
| Progressive Movement | political and social movement that focused on how law could be used to protect workers and the public from health hazards that resulted from industrialization; lead the way for sociological jurisprudence |
| Lochner vs. New York | Supreme Court case that struck down setting maximum hours because it violated the right to contract |
| Muller vs. Oregon | Supreme Court case that upheld the limited hours for women because it protected maternal function |
| "law in action" | theory of jurisprudence that focuses on the actual enforcement and interpretation of laws and argues for a more active role for judges |
| legal realism | theory that all legal decisions are based on moral and political choices |
| law and economics | well-accepted theory that law functions or should function to maximum societal wealth by promoting market efficiency |
| game theory | theory used to predict and explain how individual decisions are affected by the strategies of other actors |
| critical legal studies | belief that law is used to reinforce existing power structures |
| Marxist legal theory | belief that law is a tool to reinforce the privileged position of the elite |
| feminist jurisprudence | set of theories that describe how law and legal institution are biased in favor of men |
| Jeremy Bentham | theorist that argued that we need a code of law based on utility; thought there were no inalienable rights and the only rights we have are given to us by the government |
| John Austin | theorist that believed only real laws are there to punish those who fail to conform; developed the idea of analytical jurisprudence |
| H.L.A. Hart | theorist that believed law should satisfy the legal system based on three conditions; we can't use morality to see if a law is just or not |
| Roscoe Pound | theorist who argued that judges' strict reliance on precedent meant that case law was out of touch with social reality |
| Benjamin Cardozo | theorist who claimed that judge made law is one of the existing realities of life and the process of judging is much like legislating |
| legal realism | pragmatic and scientific approach to law |
| Oliver Wendell Holmes, Jr. | judge who argued that laws should be analyzed not in terms of moral principle but in terms of consequences; advocated legal realism |
| "Bad Man Theory" | developed by Holmes, which assumed that people are more interested at what will happen to them if they disobey the law |
| liberal feminist jurisprudence | view that law must aim at gender-neutrality |
| relational or cultural feminist jurisprudence | the theory that law must accommodate gender differences, specifically, the role of relationships in women's lives |
| dominance or radical feminist jurisprudence | theory of feminist jurisprudence that focuses on the power imbalances between the sexes and sees law as a tool for the oppression of women |
| critical race feminism | belief that law reflects but not only gender but race and class bias |
| critical race theory | part of outsider jurisprudence, it assumes that law is biased against persons of color |
| latino critical theory | theory of jurisprudence that views that law as reinforcing the majority culture and English language |
| postmodernism | view that there is no objective, knowable, or final truth and that standards and behaviors are powerfully shaped by certain groups and individuals |
| law and literature school | theory or jurisprudence that views literature as helpful to our understanding of how law operates |
| law and popular culture school | theory of jurisprudence that suggests we can use popular culture to better understand how law functions |
| common law tradition | a tradition focusing on judge-made law; derived from the British common law tradition |
| code of civil tradition | a tradition focusing on law made by legislatures, chief executives, and regulatory and enforcement offices; derived from the legal system of ancient Rome |
| case law | law that derives from judges' decisions in cases |
| Norman Conquest of 1066 | common law tradition traced back to this time; the invasion of England resulted in a national legal system |
| primogeniture | common law rule that the firstborn son alone inherits the father's estate |
| gravelkind | the rule that divided the father's estate equally among all his sons |
| borough-English | the rule that gave all of the father's property to the youngest son |
| Magna Carter | document that limited the power of the sovereign in 1215 and asserted individual rights |
| Henry of Bracton | writer who worked to compile a compilation of common law tradition and uniformity |
| stare decisis | principle that judges should rely on the reasoning of other judges |
| Glorious Revolution of 1689 | uprising that ended the rule of King James II and ultimately made the king and queen subject to the laws of Parliament |
| Bill of Rights | signed by King William and Mary that created protections of individual rights |
| William Blackstone | writer who established a difference between written and unwritten law; used reports to establish legal principle; wrote the doctrine of coverture |
| doctrine of coverture | the merging of a woman's legal identity to that of her husband |
| religious codes | most laws in the Colonial America were based on? |
| Salem Witchcraft Trials | set of trials that resulted in the deaths of many women because of the conflicting religious principle and law in colonial society; individuals were punished by death for not conforming to law |
| Code of Justinian | an extensive legal code at attempted to maintain control over Roman Empire |
| Civil Code | code created to attempt to ensure uniformity, establish individual rights, and consolidate power; still used in Louisiana |
| National Conference of Commissioners on Uniform State Laws | NCCUSL |
| American Law Institute | ALI |
| NCCUSL and ALI | organizations that seek to codify law and make it easier to use and more predictable |
| Uniform Commercial Code | UCC |
| UCC | a code that governs contracts; intended to provide uniformity and consistency among states to limit state variation |
| Marbury vs. Madison | Supreme Court case that established court over Congressional statue and judicial review |
| Schiavo Case | Supreme Court case that established the right to die; family was able to prove that she would choose to die if given the choice |
| Cruzan vs. Missouri Department of Health | Supreme Court case that established that based on due process law that people can't have their rights abridged |
| Common Law Advantages | stable over time; based on precedence, it is knowable and understandable |
| Common Law Disadvantages | conservative and inable to change social alterations; decisions have to develop over time |
| Code Law Advantages | more proactive to create more uniform law; systematic |
| Code Law Disadvantages | unstable; unworkable with no flexibility |
| Criminal law | deals with breeches of code of criminal acts |
| Civil Law | individuals owing against one another or group |
| Islamic legal tradition | tradition that subordinates law from particular religious doctrine; there is only one nation like this where all law is based on religious code |
| socialist legal tradition | tradition that focuses on the role of law in ensuring national security |
| customary law | law that is not necessarily written down but is based on long-established patterns or rules of behavior |
| Common Law Tradition | comes from the United Kingdom based in judge-made law and judicial review |
| judicial review | the power of courts to review acts of the other branches and to strike them down as unconstitutional |
| inquisitorial system | system used in nations with code law traditions which are characterized by cooperation |
| preponderance of the evidence | most of the evidence points to a finding of guilt or liability; greater likelihood than not that the person committed the act that he or she is alleged to have committed |
| guilt beyond a reasonable doubt | so much of the evidence points toward guilt that no reasonable person would doubt that the person is responsible |
| advisory opinions | opinions rendered in response to a request for the highest constitutional court to weigh in on a law and issue an opinion that can guide lawmakers in dealing with this law |
| Code Law Tradition | tradition with no judicial review power and no precedent; based on inquisitorial system |
| Shari'ah | based on Koran that governs relationships between individuals and groups and is seen as the key text |
| Sunna | this source of law tradition establishes legal custom; significant disagreement about what the four schools actually require |
| Emil Durkheim | sociologist who argued that as a nation becomes more industrialized the administrative and procedural law dominate; individuals abide by laws for fear of the loss of something valued |
| Max Weber | writer who distinguished between the stages of legal development by examining the relationship between law and political legitimacy through three ways |
| charismatic domination | the ability of a religious or political leader to command obedience through the operation of his or her personality or position |
| traditional domination | exerted through religious principles or tradition; individuals conformed their behavior to the rules set down by some individual |
| legal domination | focused on the individual actor and assumed that he or she could choose whether to voluntarily submit to the authority of law; rules are consistent and knowable |
| rule of recognition | allows the society to identify which laws have to be obeyed |
| rule of change | allowed the society to alter its rules |
| rule of adjudication | allowed a society to determine whether one of these rules has been violated |
| Bronislaw Malinowski | a legal anthropologist who argued that scholars had to look to see how a legal system was actually operating; studied native people and law to see what is actually going on in society |
| "just war" | principle argued by Augustine that justified a principle higher that serves a higher good rather than a desire to accumulate power |
| Treaty of Westphalia | a treaty that marked the beginning of the international relations in a modern era; established the nation-state as the most important actor |
| Hugo Gratis | theorist that expanded on the attempt to constrain war; argued that only just wars were fought to ensure inalienable rights |
| private law | law governing transactions between private entities, like corporations |
| public law | law regulating relations between nation-states or nongovernmental agencies operation on behalf of a wider community |
| International Court of Justice | ICJ |
| International Court of Justice | the highest court of the international community |
| treaty | a written agreement between two or more nation-states and governed by international law |
| National Free Trade Agreement | NAFTA |
| National Free Trade Agreement | regional treaty between the United States, Canada, and Mexico intended to ease trade barriers and result in freer trade |
| customary law | international law based on the customs or traditions of a community of nations |
| principle of reciprocity | ancient custom that ensured the safety of ambassadors and messengers by allowing retaliation against the leaders of those countries that harmed enemy envoys |
| Alien Tort Claims Act | ATCA |
| Alien Tort Claims Act | U.S. statue that empowers American courts to hear cases involving violations of international treaty law and customary law |
| nonconsensual sources of law | those sources of law that are not written down but are inferred by domestic law; two main sources are jus cogens and the decisions of some international and domestic courts |
| jus cogens | set of norms based on unanimous or near unanimous agreement about acceptable behavior |
| law of conquest | the long-established custom that recgonized the right of European nations to occupy and possess lands that they discovered in the New World |
| Universal Declaration of Human Rights | established that international law protects not only sovereign nations but individuals,as well |
| International Criminal Court | court created to establish a permanent tribunal for hearing cases against government officials charged with human rights violations |
| goal of international law | protection of human rights and the protection of sovereign rights of nation-states |
| by establishing laws | how do we control society? |
| purpose of theories of jurisprudence | gives us a framework to better understand why certain laws exist and what impact they have on our society |
| positive and natural law theorists | two main groups of normative law theorists |
| code law and common law | American legal system is a blend of... |
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