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3 Importances of Pre-Socratics
- idealism
- rationalism
- held back the physical sciences but worked well in law
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What is the idea behind idealism?
learning for the sake of learning...impt of mind
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What is the idea behind rationalism?
- relying on reasoning from first principles
- thinking deductively (geometry)
- start with an axiom and then deduce certain principles
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Who said "Everything is water"?
Thales
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Society thought there were 4 elements and Thales was trying to do what?
put them together into one
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Who said "The mind is a very impt thing and to preserve it you should avoid women and booze"
Heracleitos
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Who said "You never step into the same river twice"?
Heracleitos
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Who used fire as a metaphor for our intelligence?
Heracleitos
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Who said "Everything is numbers"?
Pythagoras
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Who set up monestaries to study numbers and tried to see them in everything?
Pythagoras
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Who said "Man is the measure of things"?
Protagoras
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Who said "Your senses are not to be trusted"?
Parrmenides
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Who believed that justice means that you administer the law w/o regards to persons...impartiality?
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What did realists want law to be?
a predictive science
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Whose famous doctrine was equity?
stoics
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Who said "Skepticism is irrefutable but unbelievable"?
Hume
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What are the 3 main things that Descartes brought to the law?
- codification
- bull's eye experiment
- coordinate geometry
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Who was known as The Dark One?
Heracleitos
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What was Descartes theory of codification?
you don't need lawyers and you can make up the laws in simple statements
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What was the result of Descartes' bull's eye experiment?
- you don't see what you think you see
- not seeing things directly but seeing their ideas
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What was Descartes theory of coordinate geometry?
Every physical body has 2 characteristics which can be represented by math
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What are the 2 characteristics of every physical body according to Descartes?
- extension (shape)
- motion (movement or acceleration)
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Who believed that if you don't have numbers then you don't have anything and therefore the only science was mathematical science?
Descartes
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How did Descartes deal with irregular shapes?
fractal geometry - break these down into regular shapes and then use those mathematical formulae
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Who said there was no reason to believe in external objects, in "self", or in causation?
Hume
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What was Hume's theory of causation?
that it was merely habit and therefore an illusion
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Why didn't Hume think he was a skeptic?
b/c he did believe in things as certain things are programmed into us and nature is too strong for reason
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Who believed that the universe is the mind?
stoics
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Who believed that everything has a mind including inanimate objects?
stoics
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Who said there are no absolutely true factual statements?
C. S. Pierce
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Who said there is no science of mind?
Descartes
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Who believed in moral relativism?
Protagoras
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Who believed that the law could be a predictive science?
Oliphant
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What is Plato's theory of forms?
- for every good thing there is a form (blueprint)
- form/blueprint is a general notion that you can't reach with your eyes but can only be reached by the mind
- forms are reflected in what you see therefore if you study the individual exemplars you can begin to distinguish the forms
- to get the form of law you have to look at the different legal systems
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What is the stoic's doctrine of equity?
- everything is pretty much equal b/c eveything has a mind (but the intelligence in the minds of these things will vary)
- treat people with great respect b/c they have intelligence
- honesty and fairness in all dealings with ppl
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What is rationalism?
- all your knowledge comes from thinking, not from seeing
- has a geometrical shape
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What is radical rationalism and who would be some in the present day?
- believe that you don't get anything from seeing
- nuclear physicists b/c they are saying that the world can be broken down into 2D formula or 2D plane
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How did Descartes' Bull's Eye experiment lead to skepticism?
- when he did the experiment he discovered that the candle was seen upside down in the eye
- b/c you aren't seeing what you think you are seeing which was completely opposite from how the empiricists believed
- empiricism believed htat knowledge depended on what you feel and what you see (sense experience)
- mind-body problem (mental world of color and thought seems totally different from the physical world in which it exists)
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How did Descartes feel about codificaiton?
throw out the books and start over!!!
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Who said a code might work if it was made properly?
savigny
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According to Savigny, what is required for a code to work?
- relevant social conditions stable
- adequate settled law to codify
- competent legal profession to understand and then update existing laws
- adequate legal language
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Why did Savigny want a code?
- he was a follower of Descartes
- law as it was was archaie and useless
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Why was the code that Savigny implemented everywhere he went met with opposition?
b/c it was French and this was a time of nationalism
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Savigny wanted to abolish aristorcracy and replace it with what?
meritocracy
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Savigny thought authoritative texts were better than codes for the following 2 reasons:
- easier to change, modify, or supplement
- if it is no longer relevant cna get rid of it easier than you can a statute...not stuck with it
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According to Savigny, you can't make up law out of your head but it must be made up of what?
summary of what you already have
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What is John Austin's definition of law?
- all laws are commands
- ordinance of reason given by one rational being to another
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What is John Austin's definition of command?
request coupled with a threat
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What is John Austin's definition of divine law?
God given commands
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What is John Austin's definition of positive law?
commands given by the sovereign
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What is John Austin's definition of positive morality?
- "them" gives these commands
- stem from public pressure/opinion
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A command is more likely to be effective if it is what?
in accordance with positive morality (the public opinion of the day)
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A command won't work at all if it is what?
contrary to the positive morality of the day (public opinion)
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What are John Austin's laws of nature?
- aren't laws b/c nature doesn't obey laws but rather behaves
- obedience is something humans do
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What is John Austin's definition of the Sovereign?
determinant or determinable person or groups of persons (you know who they are) that the society, or bulk of society, have the habit of obeying and who have no habit of obedience to a political superior
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What is John Austin's view on constitutional or international law?
can't have these b/c the sovereing doesn't answer to a political superior just public morality
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Why do we need to know who the sovereign are?
so we will know if they have the right to make laws and be obeyed
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John Austin divided the laws into what 4 categories?
- divine laws
- positive laws
- positive morality
- laws of nature
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What are the 5 influences the realists believed the law was ignoring?
- freudian notion of rationalization
- marxist notion of ideology and propoganda
- radical empiricism (emphasizing data and nervous about theorizing)
- burgeoning social sciences
- darwinian optimism
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What is the Freudian notion of Rationalization?
- very dismissive of judicial argument
- looking at judicial opinions for operative facts
- cases aren't decided by reasoning but by these operative facts
- are building up fact patterns when studying case law
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According to the Freudian notion of Rationalization, if you can figure out the operative facts what can you do regarding other cases?
predict the outcome b/c these will probably work for a judge in another court
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What is the marxist notion of ideology and propoganda?
- L are the tools of the privileged
- business of law is persuading the down trodden that they are really getting a fiar shake and that it is just
- function of lawyers is to make the have nots think they were getting a fair shake
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What is the definition of ideology according to Marx?
lies you tell yourself
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What is the definition of propganda according to Marx?
lies you tell yourself
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According to the marxist notion of ideology and propaganda, who do lawyers make decisions that favor the down trodden?
to let them win once in a while to keep them fooled
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According to Marx, how do lawyers present themselves?
as the champions of justice
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According to Marx is it true that the wealthy have more access to the law than the poor?
- yes
- there is a class war b/t the haves and have nots
- the law depends on who you are and what you have
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What are the criticisms of the marxist notion of ideology and propaganda?
- a statement of the ideals of the legal profession represent how lawyers think they should function and it should be taken seriously as moral demand
- propaganda shouldn't be put out merely to justify privilege
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What is radical empricism according to Ophilant?
- traces back to Hume and pushed by experimental chemists
- get out and observe
- get back to the facts and forget about theory
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What are the criticisms of radical empricism according to Ophilant?
- people are no longer afraid of theory
- science tends to be viewed in the light of game theory applying calculus systems of one sort or another to facts in order to achieve goals
- if legal theory can be represented as applied calculus there is no reason why its structures shouldn't be complex, more likely to be functional
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Which of the 5 influences that the realists felt the law was ignoring is the most important?
social sciences
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What is the influence of social sciences on the law according to the realists?
- law could be made a predictive science based on statistics
- you can have a certain percentage chance of winning
- statistics can help you predict with some kind of numerical reliabiity what is going to happen
- statistics aid lawyers in determining whether they should try or settle
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How did Descartes feel about social sciences?
can't be measured scientifically so they can't be studied in universities
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What are the criticisms associated with influence of the social sciences on the law according to the realists?
- Lawyers advising clients must indeed predict what courts will do but they must also function in the courtroom itself
- Statistical studies may forecast the result of a future lawsuit but these methods contribute little or nothing once the lawsuit has begin
- Attempting to force legal theory into the mold of the social sciences is likely to be a procrustean procedure
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What is Darwinian Optimism according to the realists?
- notion that human history can be viewed as a series of progress improvements
- reinforced by Darwinian evolutionary theory where changes in living organisms were seen as a series of successful adaptations
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According to Darwinian Optimisim, who are the winners?
- the bold
- those which adapt and change to their circumstances and environment
- fortune favors the bold
- realists were bold and confident
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How did Darwinian Optimism influence the law and the study of judicial opinion?
- ignore the opinion
- avoid theory
- look for facts outside the opinion
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What is the criticism of darwinian optimism?
no guarantee that things will always improve
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What is Bentham's definition of utility?
- rigth and wrong
- pleasure and pain
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What are the factors for measuring pleasure or pain according to Bentham?
- intensity
- duration
- certainty or uncertainty
- propinquity or remoteness
- fecundity
- purity
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What are the criticisms of Bentham?
- difficult to determine/measure
- what is pleasure?
- mathematical problems
- cultural problems
- moral problems
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What did Bentham mean by fecundity?
Chance the pleasure or pain has of being followed by sensations of the same kind
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What did Bentham mean by purity?
chance the pleasure or pain has of not being followed by sensations of the opposite kind
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What is the moral problem associated with Bentham's theory of utility?
- small and unpopular minorities might be oppressed
- what is to the benefit of the group may not nec be to the benefit of the individual
- majority rule whil good for the majority may be bad for the minority
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What is the cultural problem associated with Bentham's theory of utility?
- this is an educational issue which hits on the tradition of education based on the idea that culture is important
- who decides what are considered "good" and "bad" books, movies, etc
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What are some of things Bentham listed that most of us would like?
- eating is better than starving
- being housed is better than living in the streets
- health is better than sickness
- being liked is better than being hated
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Why was Bentham considered a great reformer?
he ignored his own theory and made laws that were good for many different reasons
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What are the criticisms of Rawls?
- (1) claculations are impossibly difficult
- (2) there is no veil of ignorance in real life
- (3) concern for disadvantaged doesn't follow
- (4) you can't reach values from self-interest
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Was Rawls interested in good or bad?
no he was interested in whether a law was fair
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Rawls was trying to get to liberal values but he started with what?
- little angels asking whats in it for me
- can't get to liberal values from this starting point
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What are Sir Thomas' major value principles of natural law which remain forever?
- do what is right
- preserve life
- family life
- social duties
- duty of truth
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