全英外国法制史复习资料

WESTERN LEGAL HISTORY: FINAL EXAMINATION STUDY GUIDE

SHORT ANSWERS: (5 questions for each, 20 marks in all)

Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of .his students Plato and Xenophon, and the plays of his contemporary Aristophanes.

●Justice is the interest of the people

●People have the benefit of laws, so agree to respect them

●Disobedience of the law destroys the law and the state

●Justice is a compromise: doing wrong or being wronged

Plato was a Classical Greek philosopher, mathematician, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. He used to advocate that the king of a country should be a philosopher, but later changes his mind.

●Human nature commits injustice whenever it is possible

●Dominant class makes law for self

●Proper role of law is ensuring the general benefit

Aristotle was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic , rhetoric, politics, government, ethics, biology, and zoology. Aristotle believes in the function of the law and insists that rule of law is better than rule of men.

●Public officials must cr itically study different cities‟ laws

●The laws must be adapted to different circumstances of people

●The character of law is …a kind of order‟, and the law also has a …compulsive force‟

●Man has a natural instinct to live in orderly communities

●Man‟s nature desires the best life he can get

●Man is a “political animal”

Cicero was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He is widely considered one of Rome‟s greatest orators and prose stylists.

He is also considered as the ancient pioneer of the separation of powers into three separate branches of government

●Law is the bond, agreement and partnership of men.

●The law is inseparable from the reason given of nature

●Law is right reason in commanding and prohibiting

●The natural social instinct is the source of law itself

●Evil law is illegal

自然法效力高于实在法

自然法是与自然即事物的本质相适应的法

人人平等

恶法非法

ST. THOMAS AQUINAS

Aquinas is an Italian priest of the Catholic Church and an influential philosopher and theologian in

the tradition of scholasticism. He advocates that the purpose of church is to pursue the supernatural

good, that is, to know the god. Supernatural good is higher than the public good that the government pursues, so the church should be in command.

托马斯的政治思想是神权政治论，其核心是上帝高于一切，一切服务于上帝。他主张政治隶属

于宗教，世俗服从于教会，皇帝受命于教皇，其实质是维护封建宗教神学和教会的利益。

●God is the highest good and the cause of all things.

●Human law is the effort of reasoning from the eternal laws.

●The order of nature is the result of one god.

SHORT DEFINITIONS: (5 questions, 4 marks for each, 20 marks in all)

∙THE STATE (GOVERNMENT & RULERS)

The state is an organized community living under a government.

∙NATURAL LAW

Natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior.(Principles which are “naturally” right and proper)

∙POSITIVE LAW

Positive law is the term generally used to describe man-made laws that is set by political superiors to political inferiors

●LAW (RULES) AND EQUITY (JUSTICE)普通法和衡平法

Aristotle on Law and Equity.

Equity: what is equitable is in fact just, not according to law; rather it is a …correction‟ of legal justice

Law: law is a set of rules enacted by the authorities or developed from the custom which is recognized by the community as binding to all members.

∙RULE OF LAW

Rule of law is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government official s. That means RULE of LAW is the principle that every person and organization, including the government, is subject to the same laws.

∙RULE OF MEN

Rule of men is a society in which one person, or a group of persons, rules arbitrarily.

∙LEGISLATION (STATUTES)

Legislation is law which has been enacted by a legislature or other governing body, or the process of making it.

A statute is a formal written enactment of a legislative authority that governs a state, city, or county.

∙CUSTOM (ANCIENT LAWS)

Custom is a rule of conduct in society, established by long use and binding those under it, and it derives its