MIDTERM STUDY GUIDE Add stuff from last day The Queen v Dudley and Stephens case doctrine of necessity cannibalism case Types of arguments Utilitarian greatest good for greatest of people o Criticisms hard to quantify worth of lives retroactively applied no random choosing non consensual Intentionality volition intent is not to murder but rather to sustain life o Criticisms weakened by lack of consent he couldn t speak Doctrine of necessity extreme circumstances and measure of last resort o Applies in self defense however the guy didn t threaten them o Precedent 1842 The United States vs Holmes left open the possibility of necessity as defense o Criticisms it was struck down Judgement of necessity is unclear who judges by what measure Principle leaves him who profits to determine the necessity which will justify taking someone s life to preserve his own o Judges didn t want to make precedent that would justify murder o Not recognized as a plausible defense because it will do more harm than good by creating a defense that could justify many types of murder Example hunger could be defense for stealing homelessness a defense for trespassing etc o Today SCOTUS recognizes defense of necessity but strongly limits its scope defense of necessity must show imminent peril lack of reasonable lawful alternatives to actions and proportionality of harm caused and avoided State of nature argument that outside of society in sea state rules laws don t apply no jurisdiction in the middle of sea o State of nature argument is dangerous because it means that you can go to places in the world where you are not bound by moral or legal conduct o They are in an English boat they are subject to English laws Relate to 3 schools of jurisprudence o Legal positivism cannibalism was seen as necessity on open seas legal positivism says that law is valid if there is force backing it on the boat the captain is the state law Act also fits legal definition of crime o Natural law act lacked core morality b c eating your brothers at sea is wrong Judge used natural law Law idealistic or realistic o Historical school since there is precedent that people do this at sea it is accepted public opinion supported acceptable Eugen Ehrlich s living law people use this in practice Is the value of life absolute o Verdict says that it is murder is never justified o Later sentence is contradictory b c sentenced to death Life of cannibals is not as good as the life of the kid who was killed Fair procedure and consent would strengthen other arguments Absence of due process Relationship between law and justice o Relationship between law and public opinion Law is constant public opinion fluctuates originally was positive towards prisoners then became sour William v Walker Thomas Furniture Company doctrine of unconscionability Social worker lived on 218 month with 7 kids Established doctrine of unconscionability contracts that include an absence of meaningful choice on one party with contract terms unreasonably fair to the other party are unconscionable and unenforceable o Meaningful choice determined by equality of bargaining power AND reasonable opportunity to understand terms of contract Without reasonable opportunity to understand contract there is lack of real consent to terms of contract Amplified by her background social worker income uneducated Inequality in bargaining power determined by general commercial background education about trade Equality of bargaining power mutual favorability Precedent Scott v United States 1870 SCOTUS stated that unconscionable contracts are unenforceable under Congress s Uniform Commercial Code Dissent by Danaher it is role of legislature not courts to determine when contracts are unenforceable since many low income clients push items on credit out of necessity it is not Court s role to determine when these contracts should be annulled Legal positivism contract is valid because he signed it and it s a rule o Blurry line is provision in law b c rule is so obscure Natural law contract is invalid b c businesses should operate w ethics Historical school does it align with accepted business codes Judge Skelly Wright ruled Schools of jurisprudence Natural Law Legal Positivism and Historical School Natural Law Lon Fuller inner core of morality legal system has to have inner core of morality to count as a legal system independent from divine inspiration in contrast to St Thomas Aquinas Criticisms no absolute morality not the same everywhere and there are no eternal truths who has the correct interpretation vague who defines morality cultural bias ethnocentric Legal Positivism H L A Hart rule of recognition divided law into primary and secondary rules o Rule of recognition secondary rules that determine validity of primary rules John Austin gun man defines law as a rule backed by force o Criticized by HLA Hart who said that this definition would count a gunman as a legal system said it was too simplistic Ronald Dworkin theory of law as integrity natural law thinker Criticisms too narrow doesn t include international law religious law HLA Hart specifically says it is excluded because it is not given by state smaller scale societies laws too fixated on rules what validates the rule of recognition dangerous to separate law from morality forced to embrace corrupt legal systems Nazi wife case debate between HLA Hart legal positivist and Lon Fuller natural law Involved a woman who denounced husband to government for his illegal remarks about the Nazi regime he was sentenced to death After war wife was prosecuted in W German court for illegally depriving a person of his freedom which was punishable by German code of 1871 Retroactivity saying later that a past law is invalid so you re being punished now o Fair notice you have to tell people in advance what the law is so they can make their behavior conform to the law HLA Hart acknowledges that he s imposing retroactive punishment but he s willing to punish the woman because her act is illegal based on PRESENT law Fuller the whole legal system lacked a moral core so the law was invalid also supports punishing her o Supports it b c symbolizes a sharp break of the past introduces function of judicial process as cleanup operation Border guard case Chris Gueffroy and Christian Guadian retroactively applied law as border guards that shot Chris and Christian were later subject to punishment Historical School of Jurisprudence Sociological Jurisprudence Legal Realism