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Nuremberg Trials
Fairness of Nuremberg Trials were put in question because the trials violated the
prohibition against ex post facto laws because they were tried and charged for acts
which were not punishable by law when they were committed.
The Germans being meticulous record keepers, there was no count of the Nuremberg
Trials that could not be proven by books and records.
The four counts indicted in the Nuremberg Trial are crimes against humanity, crimes
against peace, war crimes and conspiracy in plotting a war of aggression
The fairness of the Nuremberg Trials was put in question because it could be viewed as
high politics masquerading as law
Is Law Necessary
On the matter of necessity of law, Augustine taught that law was a natural necessity to
curb mans sinful nature/an indispensable restraint to curb inclination to evil.
The law is not power but restraint on power
Anarchism means literally a society without an arkhos without a ruler.
Marx envisaged the overthrow of the capitalist society by a violent revolution of the
oppressed proletariat.
In the broadest sense, it is true that the law is a logical development of everything else.
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Legal positivists have consistently urged that human law must be regard as valid and
entitled to obedience whatever its moral content.
For positivists, human laws are valid and are binding even if contrary to the laws of God.
Legal positivism is a theory which treats the autonomy of each spheres of law and
morality as exclusive
On the whole, positivist shares with the natural lawyer a rationalist approach to the moral
values of his society
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Both natural law and legal positivism are rational creeds which may be contrasted with
the various forms of irrationalism which have emerged in modern times i.e. Fascism and
Nazism.
Justice is the more general purpose the law everywhere aims at achieving.
Law must be assimilated to justice and law without justice is a mockery, if not a
contradiction.
For Plato, the microcosm of the just man is a reflection of the pattern of the just society.
Platonic justice views that every person or thing has its own proper sphere in the order
of things and justice consists of conforming to that sphere (like a doctor is within the
sphere of healing the sick)
Platos system seems based on the fallacy that each man is by nature fitted for one job
or function and that there is such a job or function adapted to each persons natural
attainments or aptitudes (some are born naturally as slaves and only fitted to serve)
For the Greeks, there is a basic connection between justice and equality.
Among the Greek philosophers, justice essentially embodied the idea of inequality.
o Because the lack of natural equality between human beings called for different
treatment
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The attaining of equality, not the preserving of inequality, that modern moral and legal
philosophy treat as the vital function of justice
In modern times, equality has been regarded as the very essence of justice.
This idea of justice being linked with equality of treatment owes much to that association
of justice with legal proceedings.
Formal principle of equality: A law applied without discrimination applied equally in
all situations and to all persons whether rich or poor without fear or favor may be
regarded as embodiment of justice.
o Not to be understood as treat everyone alike regardless of individual differences
This may lead to condemnation of a mentally incapacitated person to the
same punishment for non-mentally incapacitated
o What is really meant is that like shall be treated alike. Everyone within a same
category is to be treated in the same way.
o Persons who are equal should be treated equally and those who are different
should be treated differently
Formal justice requires equality of treatment in accordance with classification laid down
by the rules but does not state how people are to be classified or treated.
o Formal justice is an empty category. If it is to be given specific content, other
principles than mere formal equality are needed.
A certain measure of coherence and regularity is a vital feature of any legal system but
no exact standard can be laid down by this measure is to be judged.
Three types of legal injustice:
o The law is so closely linked in the general opinion of justice with the idea of
justice and it is treated as synonymous to justice.
Legal injustice is committed when a case is decided contrary to what the
law lays down.
o The law is not duly administered in the spirit of impartiality it requires
o When law, though perfectly impartially administered, is itself unjust if judged by
whatever value system applied to test the substantial justice of the rule.
The three features of formal justice are (1) existing and applicable laws laying how
people are to be treated (2) general in character (generality) and (3) impartially
applied.
Open society is where a wide field left for personal decision and for assuming of
individual responsibility
Closed society is an almost tribal or collectivist pattern where the community is
completely dominant and the individual counts for little or none.
Negative freedom is concerned with organizing the pattern of society that a large
sphere still remains for individual choice and initiative compatible with public welfare.
despite the restraints and limitations placed
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Problem of Conflicting Values states that conflicts may arise between the various
types of fundamental rights accepted in modern democratic state and the values which
underlie these.
o Freedom of speech conflicts with right of citizen to be protected against intolerant
propaganda
The reduction principle of religious freedom expresses that religious belief is
indistinguishable from other types of belief so that neither free exercise clause nor the
establishment clause constrains government action any differently than the free speech
clause does.
Mandatory accommodation states exemptions from generally applicable laws are
required by force of the free exercise clause
Permissive accommodation refers to exercises of political discretion that benefit religion
and the Constitution neither requires nor forbids.
Law and Sovereignty
Sovereign in present usage is that person or body which is the supreme legislator in a
given community.
The power to change the law is the reason that such legislator is regarded as the
possessor of the ultimate legal authority in the state.
The modern idea of sovereignty is associated with supreme power of law-making
than with supreme executive or judicial authority.
Internal sovereignty is considered as that of supreme domestic legislator.
External sovereignty is much more like an absolute monarch under a customary system
of law who claims total freedom of action to act as his will or desire may direct.
State sovereignty meant each state was entirely free to regulate is relations with other
states i.e. right to declare war and annex territory of defeated state.
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The fresh legal problem in international relations is how the unfettered sovereignty of the
national state could nonetheless be subordinated to international rules not derived from
any superior state or authority.
The command theory states that the law is what the sovereign commands and that
nothing can be law which is not commanded by the sovereign.
Justice Holmes: The life of the law is not logic but experience.
Law and Society
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concept of trust (property held by one party (trustee) for the benefit of
another)
limited liability of commercial company (Ltd., LLC, etc.)
intellectual property (patent rights, copyright, trademark)
Legal concepts tend to develop a life of their own which may lead to many unexpected
paths by their own vitality and the laws of their own inherent logic
Legal concepts like other symbols of mans creativity are apt to possess a vitality of their
own which may end by leading their authors instead of being led by the authors.
o Concepts are excellent servants but not always good masters.
o May result in the hardening of the arteries of the body of law; undue rigidity and
inability to adapt to new social situations; no alternative but to work out the strict
logical implications of the rules
Law is a great complex of rules, precepts, standards and principles in a process of
continuous but slow-moving flux, not just a static collection of ascertainable rules.
Where is the bottleneck in our system for hearing and deciding cases?
o The bottleneck is at the witness stand.
Why?
o Because courts can hear no more than one witness at a time. Assuming that
there are just two witnesses per case, 2,000 witnesses would be waiting to be
called in courts that have 1,000 cases in their dockets. If required to form a line
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outside the courtroom, those 2,000 witnesses would form a very long line indeed
with only three witnesses getting in to testify on an ordinary hearing day
What has been done in order to partly solve these problems?
o To partly solve these problems, the 2012 Judicial Affidavit Rule directs the parties
to use judicial affidavits of witnesses in place of their direct testimonies. This
change has cut down the time needed for hearing cases by two-thirds, since the
examination of witnesses normally consists of two-thirds direct and one-third
cross. The proposed rules of civil procedure have adopted this change.
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