Law and Politics Test

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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

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