Essay Notes for Exam 1

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John Austin 1820’s
Begins school of thought about nature of law
Legal Positivism- Plain fact view
Natural Law
Command Theory of Law
Set of command that is issued by some entity (government), where the entity is characterized by its ability to get people to follow commands
Law only exists because of the power of an entity to make the general public accept their existence (Law is coercive)
John S. Mill
Harm Principle
The legitimate ends of coercive law is to prevent persons from harming other people and that coercive instances of law that do more than that (boss people around in ways that don’t behave to how people impact each other) are illegitimate
Big argument is that the harm principle is really the only justified form of legal coercion
Believes the purpose of law is to provide for pubic order and safety while allowing individuals as much freedom and self determination as possible
Mills theory challenges several older political philosophies about law (Aristotle)
Legal Paternalism
Justified to perform coercion on people in order to prevent them from inflicting harm on themselves
Legal Moralism
Principle that legal coercion can be justified to prevent people from engaging in actions that are morally wrong
Whether harmful to others or harmful to themselves
Prevent people from offending others
Aristotle
Thought the duty of law was to make people into good human beings and good citizens
Paternalism
Government has power over the people
Coercive Nature of Law
Deterrence
Prevent future crimes of the law
Retribution
Punishing violators of the law
Rehabilitation
Difference between:
Legislation
Applied/ interpreted enforced Moral Individual/State
Metaphysical/ontological (interpretation) What is law?
Political How the rule of law should be organized (democratic society)

The role of liberty- Limiting in law constitutional democracy

Laws that are understood to impugn on a legally recognized right or interest are subject to liberty limiting principle
These laws need to have some kind of justification by the state for this coercion
This justifications are usually wrapped up in the law

‘Tests’
Voting rights act- Regulates how gov’t can restrict access to voter registration Purpose is that in a constructional democracy, right to vote is important…

John S. Mill
Starts out essay on liberty by talking about development of human freedom in relationship to the development of gov’t institutions, generally saying that for most of recorded history, the big problems for as far as gov’t intuitions (relationship of state to individual) have been problems of disorder/tyranny, and problems with basic needs humans have in order to establish a unified source of gov’t
Mill is trying to urge that society needs to cultivate some kind of understanding of general limits of coercive law that will respect rights of citizens who are affected by such laws

Constitutional Rights preestablished understanding of rights and entitlements of citizens of the states have (habeus corpus State must justify reasons of arrest) development is slow and gradual development of the rights of the people and boundaries that authorities can not cross
Democracy
Not enough, must also be structured in such a way that the coercive powers of state and society need to understand themselves need to answerable to those affected by their coercion in a way that recognizes the rights of the individuals of those who live under such laws * Law must have justification to those that are affected by it * * Tyranny of the majority

Harm Principle
Mill is an advocate legal coercion is justified to prevent individuals from harming others
Only fully justified form of legal coercion
Legal Paternalism
Drugs
Suicide
Educational requirements
Safety Regs
Legal Moralism
Good Samaritan laws
Prostitution
Pornography
Defense Principle
Notion that legal coercion is justified to defend people from
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