Foundations Flow Charts

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  1. Presocratics (the one and the many) theory
    • Idealism - the importance of the mind
    • Anaxagoras & Empedocles
  2. Presocratics method
    • Rationalism - deductive (geometrical) method
    • Parmenides & Zeno
  3. Plato's theory
    • Idealism
    • - the importance of thinking
    • - the immortality of the soul
  4. Plato's Theory of Forms
    • - forms are reflected in material things
    • - the mind can use these reflections to form some idea of the forms
    • - from the forms the mind can by deduction know something about particular things
  5. 2 Theories of the Stoics
    • Idealism - the universe is a single great mind
    • Pantheism - it is all good, evil is a misunderstanding of it
  6. Methods used by the stoics
    • - they accepted the theory of forms and especially the form of the good and of justice
    • - they accepted the platonic idea of practical reason proceeding from the forms to decide what was immediately good
  7. T/F - the Roman Jurisconsultants largely ignored the pantheistic aspects of the stoic teachings
  8. What did the Roman Jurisconsultants focus on?
    the theory of forms and the geometrical method
  9. What did the Roman Jurisconsultants develop and for what purpose?
    axioms (maxims) and used them to decide individual cases (and vice versa)
  10. Rene Descartes basic premise
    Knowledge is certain, anything else is opinion
  11. Descartes idea of Basic Rationalism
    mathematical knowledge is certain
  12. Descartes 2 properties of physical objects
    • Extension - can be represented mathematically
    • Motion - Can be represented mathematically
  13. Descartes properties of mental events
    • - made up of neither extension or motion
    • - may not be represented mathematically
    • - can be studied philosophically
  14. According to Descartes, how is philosophical certainty obtained?
    • by the method of contradiction
    • - knowledge of the self --> I Think
    • - knowledge of God, external world, others persons, etc
  15. What where Descartes influences in Philosophy?
    • metaphysics and other vague stuff
    • identity crisis in philosophy
  16. Descartes influence in science
    • mathematical sciences boosted
    • human studies demoted and moved to philosophy dept
  17. Descartes influences in Law
    • throw away the law books
    • make codes de novo
  18. Under Rationalism and Empiricism knowledge is based on what?
    thinking & experience
  19. Rationalism/Emiricism - Thinking w/o experience is related to whom?
    Parmenides & Zeno
  20. Parmenides theory (thinking w/o experience)
    • It is
    • it is spherical and homogeneous throughout
  21. Zeno's theory (thinking w/o experience)
    the paradoxes of Achilies & the tortoise
  22. Rationalism/Empiricism - Thinking linked to experience is related to whom?
    • Plato
    • Galileo
    • Descartes
    • Newton
  23. Plato's theory (thinking linked with experience)
    forms are reflected in experience - reminiscence
  24. Rationalism/Empiricism - The idea that raw experiences organized and study by the mind is related to whom?
    • Locke
    • Berkeley
    • Hume
  25. Locke's theory (raw experiences organized and studied by the mind)
    Experience implies the existence of our mind, external objects, other persons, and God
  26. Berkeley's theory (raw experiences ogranized/studied by the mind)
    no need for or reason to believe in external objects
  27. Hume's theory (raw experiences organized/studied by the mind)
    all that we know arethe raw ideas (sights, sounds, etc)
  28. Rationalism/Empiricism - The idea that experience comes already organized then we think about it is related to whom?
    • Hume
    • Kant
  29. Hume's theory on skepticism
    we can neither refute skepticism nor believe it
  30. Kant's theory (experiences come already organized)
    the mind has fixed categories into which experience is automatically packaged (space, time, causation, etc)
  31. Napolean was going to change the world in 2 ways:
    • (1) treatment of soldiers - meritocrity
    • (2) law code - rational code of law published to replace law as was
    • - no need for lawyers
    • -general rules applied to particular cases
  32. Savigny's opinion of ignoring the past and creating a new code
    Poor choice
  33. Savigny's opinion of summarizing the existing law
    poor choice
  34. Savigny's opinion of a scientific analysis of legal materials where society is in turmoil
    poor choice
  35. Savigny's opinion of a scientific analysis of legal materials where the social customs are stable
    • Preferred if:
    • - legal collegium is functioning
    • - legal scientists are available
    • - historical reasons for laws known
    • - proper organization of materials
    • - technical language well developed
    • - law kept current with social changes
  36. According to Savigny if the law is kept current with social change then what two things are feasible
    • (1) code project
    • (2) authoritative books
  37. According to Savigny the preferred option would be a system composed of what?
    Good legal apparatus + good court system + good procedural forms
  38. John Austin's definition of law
    laws are commands made up of a request and threat of harm
  39. 4 types of law (john austin)
    • - divine law
    • - positive law
    • - positive morality
    • - law by analogy
  40. definition of positive law (john austin)
    aggregate of commands of the sovereign in an indpt legal political society
  41. 2 types of commands (john austin)
    • (1) particular commands
    • (2) general commands - general a to the person and/or general as to the thin commanded
  42. Criticism of John Austin's law & custom
    custom isn't law until declared to be so by the sovereign or its delegates therefore no constitutional or international law
  43. Criticism of John Austin regarding obsolete laws & reply
    What is the status of laws that are no longer obeserved

    Reply - they are still laws, one just notes that the aren't likely to be enforced
  44. Criticism of John Austin's Sovereign & reply
    Austin's sovereign is clumsy & artificial

    Reply - substitute "constitutional system" for Austin's "person or persons with no habit of obedience"
  45. John Austin on law & morality
    The law is one thing, its goodness or badness is another
  46. Criticism of Austin's law & morality & reply
    moral values and principles are part of the apparatus of the law

    Reply - while they are part of the law they are just factual statements
  47. Criticism of & reply to Austin's "no rules w/o reason"
    moral values and principles are required to interpret the law as it is designed to promote and realize such values

    Reply - while these are required to interpret the law they are only factual statements and one doesn't have to accept them as good or bad, right or wrong
  48. Influences on the development of American Legal Realism
    • Freud
    • Marx
    • Radical Empircism
    • Social Science
  49. Freud's realist doctrine
    judicial opinions are rationalizations
  50. Marx's realist doctrine
    law is a techique of class dominance
  51. Radical Empiricism's realist doctrine
    current legal theory doesn't predict outcomes as law
  52. Social Science's realist doctrine
    social science can be used to produce a predictive legal science
  53. brands of realism
    • Radical View - legal sci is strictly sociology
    • Middle position - Oliphant
    • Roscoe Pound - Law is OK but out of touch
  54. Oliphant's realist science of case law
    • What was done, not what was said in the opinion, matters
    • reclassify cases in small groups with the same outcomes
    • substitute social sci for intuitve knowledge of society
  55. 3 Essential Elements of an applied calculus system
    System that is properly set up with symbols and clearly defined rules and internally self-consistent

    Application - The things/enterprise to which the system is being applied must be clearly identified

    Objectives - purposes/goals of the application must be indicated and thereafter kept in mind when the calculus is being applied
  56. Science as applied games - different word games
    • "and" game
    • "or" game
    • decisional factor game (weighted factors v. scored factors)
    • the algorithm
  57. Basic Principle of Bentham's Utilitarianism
    • Overall sum of pleasure > sum of pain - GOOD
    • Overall sum of pain > sum of pleasure - BAD
  58. Act Utilatrianism (Bentham)
    Sum of individual pleasure > sum of pain
  59. Rule Utilatrianism (Bentham)
    Sum of group pleasure > sum of their pains
  60. Response to criticism that individual pain/pleasure is hard to measure and the sum of the group is worse (utilitarianism)
    you an get an approximate idea by looking at what most people want
  61. Response to the criticism that there can be enjoyment w/o a sensation of pleasure (i.e. - hobbies) - utilitarianism
    the sensation is there but the individual is too busy to notice
  62. response to the criticism that there is nothing to hinder people doing bad things if they are pleasurable (utilitarianism)
    over the long haul bad things will be painful to the doer
  63. Response to the criticism that the "common benefit" standard doesn't protect minorities (utilitarianism)
    the unhappiness of the minority will impact on the majority
  64. Response to the criticism that there is no basis for educational or cultural values - the gin spigot objection (utilitarianism)
    J.S. Mill - consider not only the quanitty but the quality of pleasure
  65. Rawl' Theory of Justice - Basic principle
    • Fairness
    • - impartiality
    • - the good (whatever one prefers)
    • - method of choice (rational self interest)
  66. According to Rawls' an arrangement is just if:
    there is a system such that no individual or group could reaosnably have expected to get more of what they wanted
  67. According to Rawls an arrangement is unjust if:
    The system is such that an individual or group got less than they could have reasonably expected
  68. The Principle of Liberty (Rawls)
    everyone should get as much of what they want as possible given the wishes of the others
  69. The Principle of Distribution (Rawls)
    Everyone should get as much of the available wealth or honors as possible given the wishes of the others

    fair shares will not be equal shares
  70. Position that Liberty will be preferred to Wealth or Honors (Rawls)
    This is b/c wealth or honors are instrumental in getting what one wnts
  71. Further agreements after partial lifting of the veil of ignorance (Rawls)
    • Environmental protection
    • additional shares for the disadvantaged
  72. The original positions (Rawls)
    • the principle of liberty
    • the principle of distribution
    • liberty will be preferred to wealth or honors
  73. Criticisms of Rawls' theory of justice
    • calculations are impossibly difficult
    • there is no veil of ignorance in real life
    • concern for disadvantaged doesn't follow
    • you can't reach vlues from self interest
  74. Responses to criticisms of Rawls' theory of justice
    • calculations usig sizable groups are feasible
    • we can, at least to ome extent, be impartional especially as our interests won't extend into all matters
    • one might add a "no gambling" rule
    • replace self interest with natural law values
  75. Summary of the history of natural law theory
    • Plato & Aristotle
    • The Stoics
    • The Stoics arrive in Rome
    • Natural law in the middle ages
    • Natural law in 16th Century
    • Natural law in the 18th Century
    • Natural law in the 20th Century
  76. Summay of Nautral Law Theory - Plato & Aristotle
    • theory of forms
    • the form of justice
  77. summary of Natural Law Theory - The Stoics
    • The Universe (nature) is a great mind and everything in it has some mind
    • Nature is good and even things that seem bad will be good when look at the big picture
    • to live in accordance with nature is to be calm in good or bad times
    • to live in acordance with nature is to pursue mental and intellectual things and despise riches
    • We should treat all humans with respect as they share preeminently in the Divine Mind
    • We should also be good to animales and material things in nature for the same reason
  78. Summary of Natural Law Theory - The Stoics in Rome
    • message was eagerly taken up by traditional Roman Patricians
    • the Platonic notion that there was a perfect form of justice
    • the Platonic notion that the form was reflected dimly and imperfectly in actual laws
    • actual legal systems could be studied to yield a fairly good idea of the form of justice
    • the form of justice is essentially equitas (equity) treating everyone fairly as becomes their mental nature
    • equitas could be used to reform laws
    • law should be organized like geometry
    • roman jurists saw the cases in the maxims (principles) and the principles in cases (Savigny)
  79. Summany of Natural Law Theory in the Middle Ages
    • doctrine of natural law was accepted by the early church fathers
    • st. thomas taught that NL was planted in the hearts of all men by God w/o Revelation
    • st. thomas development of NL doctrine has been the classical version, still the paradigm for most
  80. Summary of NL theory in 16th C
    • basically based on respect, treating ppl respectfully and well in business
    • expounded as entirely secular - Even if there were no God it would sill hold
  81. Summary of NL in 18th C
    used by Locke and others as the basis for individual rights
  82. Summary of NL in 20th C
    • doctrine declined as seeming too ghostly and unscientific
    • interest in it revived in 60s where a basis for civil rights seemd desirable and other candidates
    • concern developed that NL would be contrary to minority interests
  83. St. Thomas version of Natural Law Theory
    • do what you know to be right
    • act to preserve human life
    • support family and family life
    • be good member of society
    • tell and seek the truth
  84. Where values conflict a satisfactory compromise is possible in what? (St. Thomas NL)
    simple cases
  85. Where values conflict a compromise adverse to one or more values is possible in what? (St. Thomas)
    difficult cases
  86. Where values conflict there are no acceptable compromises present in what? (St. Thomas)
    impossible cases
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Foundations Flow Charts
2012-03-03 18:17:10
Foundations McQuade

Foundation flow charts
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