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151 terms

Law and Politics Test

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
informal norms that are part of day-to-day living and guide dress, patterns of speech, and interaction with others
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
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
a controversial goal of criminal justice system that gives ways to provide services to criminals to improve their lives
the oldest goal of criminal law; based on the principle to use harsh physical crime to wrongdoer
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
focuses on using punishment to dissuade the individal or public from committing the crime in the future; making an example of the criminal
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
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
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
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
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
common law rule that the firstborn son alone inherits the father's estate
the rule that divided the father's estate equally among all his sons
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
American Law Institute
organizations that seek to codify law and make it easier to use and more predictable
Uniform Commercial Code
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
based on Koran that governs relationships between individuals and groups and is seen as the key text
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
International Court of Justice
the highest court of the international community
a written agreement between two or more nation-states and governed by international law
National Free Trade Agreement
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
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...