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Philosophy 310 Final (1).
Philosophy 310 Final (1).
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Philosophy 310 FinalVirtue ethics - ANS-an ethical theory developed by Aristotle that focuses on the character traits
of the individual in evaluating moral worth. The morally good person is one who possesses the
intellectual virtue of practical reason (phronesis), used to find and apply the moral virtues (ex.
courage, generosity), which are the means between two extremes. Such a person wants to do
the right thing and has experience making tough moral decisions.
Deontology - ANS-ethical theory developed by Emmanuel Kant that takes duty as the basis of
morality; some acts are morally obligatory regardless of consequences.
To be ethical, one must strive to conform to the moral law, which is based on reason. For Kant,
actions that are motivated by emotions such as sympathy do not count as moral since they are
not based on an intention to conform to the rational moral law.
Kant's Categorical imperative - ANS-an absolute obligation imposed upon us by our rational
nature, The categorical imperative does not allow any exceptions to certain duties of perfect
obligation, such as fulfilling promises and paying debts. It can be formulated in a few different
ways, including: 1. Act only according to a maxim that you can simultaneously will that it should
become a universal law 2. Act so that you treat humanity, whether in your own person or in
another, always as an end and never as a means only
Maxim - ANS-a personally chosen rule that governs and justifies one's act in a particular
situation. [Whereas the practical law is an objective principle valid for every rational being—and
thus the principle upon which one ought to act; is a subjective principle of action. Kant believes
if it can be universalized, then is consistent with moral obligation—i.e., such one conforms to the
categorical imperative.]
Utilitarianism - ANS-Ethical theory developed by Jeremy Bentham based on maximizing utility,
or happiness; the morality of an action is determined based on what state of affairs results from
it
Jeremy Bentham - ANS-The father and creator of utilitarianism. wrote about civil law and judicial
procedure.
He devised the hedonistic calculus—a method for calculating units of happiness in order to
measure the value of different courses of action. Believed all pleasures could be compared
quantitatively.
John Stuart Mill - ANS-English Utilitarian philosopher, political theorist, & economist who wrote
On Liberty (1859), in which he defended freedom of speech & ideas. He modified Bentham's
ethical theory. In Utilitarianism (1863), he recognized qualitative differences between different
types of pleasures. Because he believes that the intellectual pleasures are superior to physical
pleasures, he disagreed with Bentham that it is possible to compare all pleasures quantitatively.
,John Austin - ANS-Legal philosopher from Suffolk, England who served briefly in the British
army before beginning his legal training. Joined the Bar in 1818, but quit the practice of law in
1825. Then became Chair of Jurisprudence at the University of London. He prepared for his
lectures by study in Bonn, Germany.
Influenced by Jeremy Bentham's utilitarianism.
His publications The Province of Jurisprudence Determined (1832) and Lectures on
Jurisprudence (1879), were very influential on English jurisprudence.
First systematic exponent of legal positivism
Laws have three essential features: command; sovereign; and sanction
jurisprudence - ANS-the branch of philosophy concerned with law. May involve: explaining or
classifying bodies of law (such as tort law or Constitutional law); comparing & contrasting law
with other fields such as economics or religion; investigating the historical, moral & cultural
sources of legal concepts; asking fundamental questions like, What is law? and, How does a
judge decide a case?
legal positivism - ANS-the view that there is a sharp division between law as it is and law as it
ought to be, but it is both possible & valuable to have a morally neutral theory of law
command (Austin) - ANS-a signification of desire by a party that has power to cause some form
of suffering or inconvenience for the person(s) to whom it is directed if that person does not
comply. All commands involve sanctions: As long as there is a small chance of incurring a small
evil for failure to comply, the expression of a wish is a command. Commands and duties are
correlative: Whenever a command is signified, a duty is imposed. Thus there are no laws that
simply create rights; they are also tacitly imposing a duty that correlates to the right.
sovereign (Austin) - ANS-a person or group of persons whom the rest of society habitually obey,
and who does not habitually obey any human superior. Austin thought all independent political
societies by their nature have a sovereign.
sanction (Austin) - ANS-an evil that will result for a party who fails to obey a command. Duties
are only sanctioned by conditional evil (suffering). Even though rewards are also motives to
comply, with a wish, the wish is not a command unless the party to whom it is directed fears
disadvantage or evil that may result from failure to comply.
law - ANS-a kind of command issued by sovereigns to their subjects that is backed by sanctions
and usually general in two senses: 1) it requires or forbids all acts of a certain kind; and 2) it
binds either a whole community or all members of a certain class within a community
(Improperly termed law according to Austin) Declaratory laws - ANS-laws that explain other laws
but do not affect the duties of the governed. These "laws" are not commands although
sometimes "laws declaratory in name are imperative in effect.
, (Improperly termed law according to Austin) Permissive laws - ANS-laws that repeal other laws.
These are not commands but they are often indirectly imperative.
(Improperly termed law according to Austin) Imperfect laws - ANS-laws that do not include
sanctions and thus are not binding. They are technically not a law but only counsel expressed
by superiors to inferiors.
laws that are only seem not to be imperative: - ANS-1.Laws which create rights. Every law that
confers a right implicitly imposes a duty correlating with the right.
2. customary laws--laws that people would obey regardless of the sovereign. Although some
argue that are not commands (and thus not laws), Austin states that once they become positive
laws, moral rules become imperative and thus are commands.
H.L.A. Hart - ANS-British legal philosopher; Oxford professor of Jurisprudence
A law is a kind of normative social rule. They have an internal aspect: a significant portion of
people use them to guide & justify their behavior & to judge others'. Laws provide a norm by
which people measure their own actions. Although he is a legal positivist, Hart says there is a
minimum content of natural law—a minimal orientation toward the common good in legal
systems.
Law is a union of primary & secondary rules. Three types of secondary rules characterize
full-blown legal systems: Rule of Recognition, Rule of Change, and Rule of Adjudication.
According to Hart, laws exist as a response to deficiencies in other kinds of social rules, such
as: - ANS-Uncertainty—People disagree about what a rule of custom requires—or even on the
matter of the existence of a rule.
Static—rules can't be changed deliberately, even if the original rationale for their existence is no
longer relevant.
Inefficient—rules of custom lack an organized way to respond to violations
the rule of recognition - ANS-the standard that a society uses for determining legal validity and
invalidity. This kind of rule addresses the problem of uncertainty.
the rule of change - ANS-enables a society to add, remove, and modify valid rules. This kind of
rule addresses the problem of rules being static, unchangeable.
the rule of adjudication - ANS-which provides a mechanism for determining whether a valid rule
has been violated. This kind of rule addresses the problem of inefficiency
Holmes - ANS-Son of poet & physician Oliver Wendell Holmes
Army lieutenant colonel in American Civil War; Harvard Law graduate
Practiced admiralty & commercial law in Boston for 15 years; edited American Law Review
U.S. Supreme Court justice 1902-32. Rejected the view that laws are commands of the
sovereign
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