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110 Cards in this Set
- Front
- Back
What is Natural Law? |
The theory that all humans can differentiate between good and evil. A body of unchangeable natural principles.
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What does natural law reject? |
The idea that law and morals should exist separately. |
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One of the best ways to describe natural law would be? |
It provides a name for the point of intersection between the law and morality. |
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What do theories of Natural law attempt to resolve? |
The question of what is and ought to be. |
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To certain natural theorists, where did law come from? |
God |
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Natural law is based on the idea that God wants us to what? |
Want good things. |
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The law should be both what? |
Both just and fair |
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Law is made up of ? |
Moral objective principles rooted in the nature of the universe. |
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As human beings, there are… |
moral principles innate to humanity which are probable by reason. |
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Case for the death penalty? |
Pratt & Morgan. Facts- Both were on death row for a really long time and it was considered cruel. Precedent coming out of the case was that if a person is on death row for 5 or more years then it would be unjust. They then limited the amount of time a person can be on death row. |
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Would natural law thinkers support hanging? |
No, because it would go against human nature and moral code. |
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What does the International Covenant on civil and political rights say about the death penalty? |
They did not abolish it per se, but they called for countries who carry out the death penalty to limit it and only do it for serious matters.
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People possess and inherent morality that has the power to…. |
Limit the power of the state: government, monarch, or legislature. |
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If man- made laws are morally binding then they must what? |
Coincide with the people believe is right and just. |
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The presence of law does not mean the presence of? |
Justice. |
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When government creates laws that goes against what people perceive to be good or bad, people will….? |
Disobey the law because it is viewed as unjust. Rooted in the fact that it violates natural law. |
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1 major contribution of Natural Law. |
Free societies and pushes the agenda of modern westwern societies. (Individualism, constitutionalism, rule of law) |
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Under natural law, the execution of the death penalty is considered? |
contrary to objective moral principles and the sanctity of life. |
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3 ways laws were used for evil in the past. |
1) Slavery 2) Dictatorships 3) Nuremberg Laws |
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If there are no moral principles within the law then- |
There is no law. |
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“The law is discoverable by reason and there is no law without moral principles.” |
Aquinas |
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The historical development of Natural law theories |
1) Classical 2) Middle ages 3)Renaissance 4) Modern |
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Philosophers associated with the classical period? |
1) Aristotle 2) Socrates 3 Plato |
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Plato believes that |
Transcendal values speak on the morality and the law. Justice is a universal value that transcends local custom. Only laws that follow the ideals of justice can be considered right. |
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Just war |
St. Augustine and Thomas Aquinas |
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Where did natural law originate? |
With the ancient Greeks. Aristotle |
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It was then further developed in the middle ages by? |
St. Thomas Aquinas |
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Are natural laws absolute or relative? |
Absolute (Plato) |
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Natural law is rooted in what? |
Our human nature and search for genuine happiness. |
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“Everything has a purpose and supreme goods fulfill that purpose.” Who said it? |
-Aristotle |
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The 3 underpinnings of natural law are: |
1) Humans have an essential rational nature that was granted by God. 2) Even without knowing God, reason can discover laws for flourishing. 3) Natural laws are universal and unchangeable. |
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What was Aquinas’ ultimate goal for humans according to what God wanted? |
The development of humans in the image of God to ward perfection. |
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The three reflections of natural law: |
1) Lex aeterna- God makes and controls the universe. 2) Lex divina- The bible whoch refelects eternal law 3) Lex Natural- Moral law God integrated into human nature |
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What is our fundamental inclination as humans according to Aquinas? |
To act in such a way to achieve good and avoid evil. |
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The 5 primary precepts discoverable by reason: |
1) Preservation of life 2) Reproduction 3) Educate the young 4) Live in society 5) Worship God |
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This philosopher’s theory is based on the natural right to self preservation of person and property. |
Hobbes |
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The Stoics 3 elements of natural law: |
1) Universality and immutability 2) stands as higher law 3) Discoverable by reason |
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This period in time marked a steep decline in the study of the greeks and romans, and more emphasis was placed on religion. |
The middle ages. (Augustine and Aquinas) |
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A downfall of the Divine Revelation theory was that? |
Those who did not believe in God may have rejected the theory. |
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“ The law can exist even if there is no God.” Who said this? |
-Grotius |
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State a noticeable difference between Aquinas and Aristotle- |
Aquinas- A theological approach: What is revealed from God. With an awareness of the ‘from below’ theory of Aristotle Aristotle- A Philosophical approach Thinking about what can be observed/ experienced. Common human values. |
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This period sparked the revival of re- studying as scholars the Greeks and Romans. |
Renaissance period |
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Who spoke on the theory of social contract? |
Rousseau, Hobbes & Locke |
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“Self preservation is the greatest lesson of natural law.” |
-Hobbes |
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What propelled the emergence of Modern Natural Law? |
• Emergence of scientific knowledge (Empirical data) • Natural law being used by different people for different ends (Alf Ross- “Like a harlot, natural law was at the disposal of all” • Emergence of positivists |
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Finnis’ 7 basic goods: |
life knowledge friendship play aesthetic experience practical reasonableness and religion. |
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The 9 requirements of practical reason are: |
• view life as a whole • prioritize certain goods over others • basic goods apply equally to all • do not become obsessed with a certain project • use effort to improve • plan your action • never harm a basic good • foster common good in the community • act on your own conscience |
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Does Finnis agree with Aquinas? |
No, Finnis starts by rejecting Aquinas’ 5 primary precepts because he rejects Aquinas’ axioms. •Natural law is based on God •God created Humanity’s purpose |
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Who reformulates the basic goods of Aquinas to make them more adaptable to modern life? |
Finnis |
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Did not subscribe to a system of absolute values- who is it? |
Fuller |
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Name 2 contemporary natural law thinkers. |
Locke and Hobbes. |
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“Life is poor, nasty, brutish and short if we do not submit to Governmental control.” Who said it? |
-Thomas Hobbes |
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Two persons associated with the decline of natural law? |
1) David Hume 2) Immanuel Kant |
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The Hart/ Fuller debate following WW2 was based on? |
The link between morality and law. Is and ought to be. |
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The Hart/ Devlin debated followed what? |
Decriminalization of homosexuality Case: Jones v AG |
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Attempted to secularize the law and disassociate Natural Law from God. |
Lon Fuller |
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What was Fuller’s theory on Natural Law? |
Concerned with the law’s excellence. “Law is the enterprise of subjecting human conduct to the governance of rules” -Law has implied moral goals |
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What are the 8 inner moralities of law as described by Lon Fuller? |
•General • Promulgated •Prospective •Understandable • Non-Contradictory • Easy to obey • Consistent • congruence |
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“Natural law ideas are found in human nature. Laws should help facilitate social life.” |
-Aristotle |
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Finnis Ethical Theory of Natural Law |
-7 evident basic goods of life -Practical reasonableness - Unjust laws lose morality |
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What is Fuller’s type of law? |
Strong, procedural Natural Law |
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What were fuller’s case examples used in the Hart/ Fuller debate to speak on morality and law? |
1) Nazi secret order to kill disabled = not promulgated; so not law. 2) Informer case: wife denounced husband Hart would say that it was law and therefore justified. Fuller says that it was not as it diverted from inner morality of law too much. |
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One commentary of Hart on Finnis was that? |
“self evidence” of basic goods is illiberal. |
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What are some downfalls of Fuller’s argument? |
Lacked practicality with regard to practice apartheid law contained desiderata. Also tells us what excellent law is but not the point of it. |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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What does Finnis and Grotius have in common? |
Proposed secularizing Natural Law |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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What does Finnis and Grotius have in common? |
Proposed secularizing Natural Law |
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What was one of Raz’ critiques on Fuller? |
Just technical, could use technique for excellent knife, does not mean that it would be used for a bad purpose. |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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What does Finnis and Grotius have in common? |
Proposed secularizing Natural Law |
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What was one of Raz’ critiques on Fuller? |
Just technical, could use technique for excellent knife, does not mean that it would be used for a bad purpose. |
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What did Finnis have to say about Fuller’s take on Natural law? |
Too minimalistic, descriptive sociology; however didn’t say why. |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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What does Finnis and Grotius have in common? |
Proposed secularizing Natural Law |
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What was one of Raz’ critiques on Fuller? |
Just technical, could use technique for excellent knife, does not mean that it would be used for a bad purpose. |
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What did Finnis have to say about Fuller’s take on Natural law? |
Too minimalistic, descriptive sociology; however didn’t say why. |
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What does the Radbruch formula surround? |
- Judges apply law until so grossly unjust that it violates fundamental human rights - it is for the moral good |
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Words used to describe Finnis’ type of theory |
Weak, substantive Natural Law |
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What does Finnis and Grotius have in common? |
Proposed secularizing Natural Law |
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What was one of Raz’ critiques on Fuller? |
Just technical, could use technique for excellent knife, does not mean that it would be used for a bad purpose. |
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What did Finnis have to say about Fuller’s take on Natural law? |
Too minimalistic, descriptive sociology; however didn’t say why. |
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What does the Radbruch formula surround? |
- Judges apply law until so grossly unjust that it violates fundamental human rights - it is for the moral good |
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What methodology does Finnis use? |
- Can’t just be empirical observation; must take insider’s view - true insider is one who’s law existence is a moral matter - ‘unjust law is not law’ is too contradictory |
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“Unjust laws do not bind morally” |
- Aquinas |
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What was Aristotle’s interpretation of Morality? |
The essence of goodness is its telos(our purpose or end). Everything was created in order for it to fulfill its telos/end/ purpose. |
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Why would Aquinas be said to have an essentialist (existentialist) understanding of Natural Law? |
He believed that the purpose of human beings were in the mind of God before creation. God’s ideal plan for humans pre-dated the universe. |
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Why would Aquinas be said to have an essentialist (existentialist) understanding of Natural Law? |
He believed that the purpose of human beings were in the mind of God before creation. God’s ideal plan for humans pre-dated the universe. |
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“Natural law is a prelapsarian state and since the fall of humans, through their own reason, should seek salvation through divine law.”
Who said it? |
St. Augustine |
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Why would Aquinas be said to have an essentialist (existentialist) understanding of Natural Law? |
He believed that the purpose of human beings were in the mind of God before creation. God’s ideal plan for humans pre-dated the universe. |
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“Natural law is a prelapsarian state and since the fall of humans, through their own reason, should seek salvation through divine law.”
Who said it? |
St. Augustine |
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Who’s understanding of Natural Law was Christianized by Aquinas? |
Aristotle 1) Hierarchy of laws (eternal, divine, natural, human) 2)Presupposition that God created the universe Nihilo. 3) Evil is the privation of Good, a falling short |
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Why would Aquinas be said to have an essentialist (existentialist) understanding of Natural Law? |
He believed that the purpose of human beings were in the mind of God before creation. God’s ideal plan for humans pre-dated the universe. |
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“Natural law is a prelapsarian state and since the fall of humans, through their own reason, should seek salvation through divine law.”
Who said it? |
St. Augustine |
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Who’s understanding of Natural Law was Christianized by Aquinas? |
Aristotle 1) Hierarchy of laws (eternal, divine, natural, human) 2)Presupposition that God created the universe Nihilo. 3) Evil is the privation of Good, a falling short |
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What did Aquinas think of human law? |
Human law must agree with Natural law, otherwise it is not law at all. |
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5 criticisms of Natural Law |
1) Global problems blamed on NL- (AIDS, overpopulation, malnutrition, poverty) 2) Dependent on a divine creator (Aquinas), and therefore restricts freedom. (obligation) 3) Secular incompatibility: right to die is just as important as right to live 4) Gender and Sexual ethics seem incompatible 5) It does not answer questions of moral relativism and particularity |
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Martin Luther king on Natural law: |
Understood the profound danger in the natural law theory, and so was careful not to encourage violence. Made the distinction: “There are two kinds of laws, just and unjust. One not only has a legal but a moral responsibility to obey just laws, but conversely, one has a moral responsibility to dispbey unjust laws.” |
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MLK jr’s stance on Natural Law |
17 letter from Birmingham Jail- He proclaimed that his appeal to Natural Law philosophy as- “A just law is a man- made code that squares with the moral law or the law of God” |
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Differentiate between Natural law and positive law. |
Natural law is the belied that our civil laws should be based on morality, ethics and what is inherently correct. Whereas Positive law or man- made law, which is defined by statute and common law only focuses on what is and not what is morally correct. |
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How did Natural Law influence the Constitution? |
It is the foundation upon which the spirit of the Constitution is built. Many of the ideas and the terms used in the Constitution cannot be truly understood without a deep understanding of the natural law the founders held. |
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Who speaks about a perfect state and that justice must go together with law? |
Plato |
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Law is founded by human nature: Internal ideals rather than external. Within the individual. Who thinks this? |
Aristotle |
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Found war destructive and was a staunch opponent of it |
Grotius |
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“Government rests on a social contract. People surrendering liberty for security.” |
Locke |
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Locke’s idea of government was the idea of? |
trust |
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Who spoke about removing government and oppressive laws for people to become happy? |
Thomas Jefferson |
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What are the two factors that caused the Natural Law theory to decline? |
1) Rise of positivism 2) Non- cognitivism |
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Argued that there is no need for society to have a shared morality. It is subjective and one person’s moral ground should not be applicable to all. |
Hart |