Law in Contemporary Society
-- JackSherrick - 16 Jan 2021

Usually I take my notes on a Google Doc but I'll do it here for this course. It gives me a chance to experiment with the site mechanics and if anyone wants to comment on my notes feel free! They're usually pretty scatterbrained and fragmented fyi

-- JackSherrick - 16 Jan 2021

Jack, I just found this! Thank you for making it available to all of us. It's interesting to see what others take from the readings.

-- OliviaMartinez - 02 Feb 2021

No problem! It feels strange making my notes public but it's kind of liberating making your thoughts public regardless of how developed they may be

-- JackSherrick - 03 Feb 2021

 

Path of the Law

  • Legal duty is prediction that if a man does or omits certain things he will be made to suffer in this or that way by the judgement of the court
  • Law and morality
    • moral rights are not equally legal rights
  • If you know nothing else, can you know the law?
  • Law constrained by morality
  • Morality constantly/arbitrarily changes (anti arc of moral universe view)
  • Where law comes from?
  • Fallacy - only force at work in the development of law is logic (8)
  • No "correct" laws, not mathematical
  • Do individual rights naturally infringe upon each other?
  • "imitation is a necessity of human nature" (11) role of tradition
  • Best laws serve articulated ends
  • "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV" (12)
    • tag jurisdiction
  • Tradition overrides rational policy and augments its own importance
  • Law and economics
  • Following existing body of dogma into highest generalizations, then look at history, then ends of laws and why those are the ends
  • Why are we catering to the "bad man?"

Transcendental Nonsense

  • Like socrates world of ideal forms
  • Where is corporation question rather asking more substantive questions
    • Court did not use interdisciplinary approach
    • Trivial question
    • Trying to “thingify” corporation
  • “Language is primarily a pre-rational function” (812)
  • Divorce law from non-legal concerns
  • Court made unions a person, addressing their metaphysical absurdist argument
  • To call something a person in law is merely to state that it can be sued
  • How can trademark be property
    • Trademarks are protected bc they have economic value, but they only have economic value because they are legally protected
    • Courts are not creating property, only creating sources of economic wealth
    • Language (like air) only becomes economically useful when someone else is deprived of it
  • Property is function of inequality
  • Value of utility property
    • The value is a function of the court’s decision
    • Not based on economic fact
  • Due process
    • Legislation falls within due process when it is such as rational men may approve
    • Not connected to morality
  • Law is used to answer empirical and ethical questions yet is not defined in ethical or empirical terms 820
  • Legal concepts are supernatural entities (corporations or property rights) which must be believed by faith
  • Rules of law a theorems in an independent system
  • Jurisprudence - autonomous system of legal concepts, rules and arguments (821)
  • 2 significant questions in law
    • How do courts decide cases of a given kind?
    • How should they decide cases of a given kind?
  • Math
    • What is a negative integer
    • We have ways of understanding it (going into debt) but don’t actually know what it is
  • A thing is what it does
  • Any concept is nothing more than a set of operations
  • Holmes does not try to show that a legal entity possess certain inherent properties
    • Holmes offered a logical basis for redefinition of every legal concept in empirical terms
  • Implications of new functional analysis
    • About what questions are propounded
    • In religion - shift toward study of consequences of religious beliefs in terms of human motivation and social structure (Weber!)
  • Institutions are collective behavior patterns
  • Creative legal thought will look more and more to the actual facts of judicial behavior (833)
    • Mcklesky - Baldus study
  • Question - if this view of the law becomes the norm, will it lose its potency.
  • Holmes - law is what the courts do
  • Blackstone - law is rule of conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong
  • For Hobbes - state of nature is analytical starting point, not actual historical period
  • What a judge ought to do is a moral issue
  • 842 - judges essential make their own law
  • Judges decisions are peculiar and suffers erosion unless it represents first salient manifestation of a new social force
  • Courts are generally conservative institutions
  • Bentham - pioneering legal descriptive scientist

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r4 - 03 Feb 2021 - 17:44:17 - JackSherrick
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