Professional Documents
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Vena V. Verga
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Positivist view of law affirms that rules of law remain law, regardless of
their moral invalidity .
Natural law theory - maintains that law must conform to basic moral
standards and that a law which is unjust is not a law.
Perfecto Fernandez believes that natural law doctrine is based on fallacy, where a
moral norm may actually be an imperative/normative command and so is not based
on sense experience/empirical proposition.
Example. Honesty is the best policy It is my judgment that there are good
reasons for being honest and it is my desire that you accept these reasons and BE
HONEST.
Thus, it is language that gives preferences (like how one person thinks honesty is
the best policy) a semblance of concreteness and universality.
Moral principles entail:
1.) Private and individual judgments as to what is desirable
2.) The desire that others conform to judgments in their conduct. (like the
honesty example)
Thingification the moral judgments of private individuals are made to appear as
essential attributes of the universe.
Note: Following Hume and Kant, no contemporary philosopher seriously entertains
the view that moral values are existing as facts of nature.
Philosophy vindicates the practical grounds for rejecting conformity with moral
standards as a requirement for legal validity.
Criteria of validity or rules of recognition are Empirical.
Moral Standards as shown by philosophical analysis are essentially judgments of
individuals, hence subjective and variable.
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When we call a law unjust and are criticizing a rule in the legal system, we do so on
the basis of a rule in a different system, a system of morality.
2.
Ends of law for the present and foreseeable future, law has the modest but crucial
task of providing the social conditions of security and liberty essential to human
achievement.
3.
One Major Point in the article: Perfecto Fernandez seems to believe that the natural
law theory, which is based on moral standards, is a fallacy.
IS LAW NECESSARY
Dennis Lloyd
B.
1.
2.
Main Thesis: The answer to the question lies on your perception of mans nature.
Whether or not man is in nature good or evil would give us an answer to the
question of necessity of law.
I.
A.
B.
II.
A.
1.
2.
B.
III.
1.
C.
D.
1.
2.
3.
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E.
1.
2.
3.
4.
5.
6.
7.
F.
1.
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2.
most of the friction and discord of our lives are obviously the result of such
exasperations and conflicts as civilization creates.
The artificial aim, which is the object of envy and malice, is the source of
conflict.
Herbert Read
The anarchist conceives society as a balance or harmony of groups; the
only difficulty is their harmonious interrelation.
Universal decentralization of authority and simplification of life is essential.
Anarchism means a society without arkhos (ruler); it does not mean a
society without laws and does it does not mean a society without order.
In the simplest form of society, some system of rules is necessary (ex.
rules on family relationship, food-gathering, mating etc.)
Such society without rules is not just a society without order but the very
negation of society itself.
PERSISTENT QUESTIONS
H.L. Hart
I.
II.
Law is a prophesy prophesy of what the courts will do is the law itself.
1.
2.
3.
4.
5.
III.
A.
B.
C.
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Rules are different from mere convergent behavior. The latter need not
make use of words such as must, ought, and should, which are used in
rules.
All rules have a penumbra of uncertainty, where the judge must choose
between alternatives.
- 4C.
D.
II.
III.
1.
2.
3.
IV.
A.
B.
II.
Conclusion:
the idea of habit of obedience fails to account for the continuity of legal system
(mere habits of obedience cannot confer on the new legislator any right to
succeed).
Habit of obedience does not make sure that the new legislators orders will be
obeyed (for people must at least accept the rule under which the new legislator
is entitled to succeed in order for them to obey the new sovereign)
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III.
A.
D.
E.
Conclusion:
- 5Even if Rex, whose orders are generally obeyed may be called a legislator, habits of
obedience to each succession of the legislators are not enough to account for the
RIGHT of the successor to succeed and for the consequent continuity of legislative
power because:
1.
habits are not normative; they cannot confer rights of authority to
anyone;
2.
habits of obedience to one individual cannot guarantee succession in a
class.
This supports the idea that habit of obedience brought about by the characteristic of
modern society (people know nothing more about the laws except that they are
laws to be followed which disobeyed would warrant infliction of punishment) leaves
the subject with no choice but to obey not because he knows the laws are good but
rather because he afraid of the penalties. This makes the habit of obedience a
WEAK DOCTRINE for failing to take into account the other active aspects like lawmaking, law identifying, etc.
IV.
Persistence of Laws
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I.
A.
1.
2.
3.
4.
5.
That laws depend for its validity on having some legal penalty (Austin) would
impress a believer of the classical notion of laws.
The story of Orestes illustrates the belief in divine intervention for offenses
against the laws and degree of flexibility in the administration of divine justice:
results from a system of polytheism where in one god might be set off against
another as to mitigate the rigour of the law.
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source of moral law rests in the authority of those whom can persuade
themselves and other of their inspiration
scriptures can only be interpreted by some people; there are limitless
interpretations
3.
justification of Credo quia absurdum one always resort to faith and
not to rationality.
rejection of an approved construction of the law is regarded as renunciation of
the will of God
GREEK INFLUENCES
powerful attachment to rationalism belief that the physical and moral order of
the world are based on rational universe.
Such belief in the human reason entails the idea of moral law of a rational kind
(derived from human reason)
Validity and existence of man-made laws are not directly controlled by a higher
law of reason
Tendency of Greek thought: to recognize human law, whether its origin in part
to divine or semi-divine, as possessing an autonomous position in human
society.
B.
Plato refuted this idea: he argued for the identity of the law and
morality but the identity not based on blind faith but on human
wisdom and reason.
B.
HEBREW INFLUENCES
one God (rejected polytheism) which will dictate the moral pattern of all man
kind and would inflict punishment to those who would disregard his decree.
Man made laws cannot not stand validity against divine laws
Laws are equated with morality for the ONE TRUE LAW is the Law that
embodied Gods will.
LAW simply means the moral and religious law which is laid down by God or
developed by divinely inspired human beings
This can be found in the post-prophetic Jewish state and early stages of
Calvanism where Laws and morality are one and no recognition of laws can be
granted if it is lacking divine inspiration.
Thus, conflict between human laws and moral laws are resolved by treating all
valid human laws as mere expressions of the moral law.
DANGERS OF HEBREW CONCEPTION:
1.
triumph of rigid orthodoxy
2.
anarchy and imposition of certain individuals (such is the case of
Anapabaptist in Germany during the early time of reformation)
II.
A.
B.
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C.
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justifies and requires obedience (ex. Nazi regimes a positive law that
contradict moral law)
This brings reason why modern jurist believe that there can be no total
identity between law and morality.
Common territories between law and morality
(a)
both are concerned to impose a standard or conduct without
which human society will not survive.
(b)
Both use normative language
(c)
Both law downs duty or what man ought to do.
(b)
because morality is itself merely what the law lays down. This
idea is propounded by:
(1)
Hobbes there is moral duty to obey the law; morality means
nothing more than obeying the law
(2)
Hegel theory of moral superiority of the state over
individual thus individual can claim no higher right than to
obey the law of the state.
2.
to recognize than man-made laws and the moral law each enjoys a
realm of its own but moral law is a higher law and thus provides a
touch stone for the validity of merely man-made laws. Conflicts need
to be resolved in favor of moral laws (natural law theory).
Note: this may be said to be a matter which must be left between God and the
unjust ruler thus it is still the citizens duty to obey the law.
3.
There is the approach which treats the autonomy of each of the
spheres of law and morality and exclusive so that neither can resolve
questions of validity save in its own sphere (known as legal positivism)
(a)
validity of rules depend solely on legal criteria just as moral
validity can be applied in relation to a system of morality.
(b)
Those who support this view take a pragmatic view of moral law,
basing it on principles such as utility, expediency, tradition or
custom
(c)
Any conflict between the two cannot impugn the validity of manmade law or alter legal obedience.
(d)
Conflicts may be resolved in accordance with the dictates of ones
conscience.
III.
1.
the idea of guilt in criminal law is linked with the idea of moral
responsibility (morals then reinforce the authority of the law and duty
to render obedience to decrees)
2.
responsibility in law is treated as excluding the possibility of guilt if
there are circumstances of excuse which causes us to adjudge the
accused not morally implicated (ex. if the accused is insane, not
knowing between right and wrong)
3.
in deciding upon the punishment to inflict.
Note: this goes to prove that law needs, in order to enjoy full authority, to be
buttressed by moral convictions of the community law and morality are
interrelated.
VI.
Conclusion: Three main attitudes, which may be adopted towards
the possibility of divergence between laws and morals.
1.
law and morals must necessarily coincide whether because:
(a)
the moral law dictates the actual content of human law (Hebrews
or Calvanist theocracies) this leads to the proposition that in
effect, only the moral law is valid and nothing that contradicts the
moral law can be binding.
Note: Principles guiding legal regulation must include moral judgments. However,
even if moral judgments infuses determinations of harms, it doesnt follow that legal
rules enforce reality because there are moral evils that of not include harms to
others which must not be regulated by law.
II.
Legal requirements to perform acts that benefit others (do you have a duty
to rescue others?)
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A.
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Performing acts that would benefit others is a moral duty yet, people may
abandon this moral duty and yet do not incur criminal or civil consequences
(no legal duty).
B.
Man has no legal duty to perform acts that is benefiting to others because
law should not enforce morality (unconvincing according to greenwalt).
In morality, there is big difference between act and omission, not so with
law.
People have general duties to act for the benefit of the public (pay taxes,
testify etc); there is not doubt then that people are required tom act to
avoid harm and to contribute to the common welfare.
C.
Those who support the idea of liability believe:
1.
others may do the job
2.
the need to help others is too vague
3.
such duty imposes inappropriately in the autonomy citizens
D.
Views on this problem:
1.
Consequentialist perspective --, these problems are matter of degree:
there is legal duty to help if it has only slight imposition to ones
projects.
2.
Deontological perspective Moral duty to help exist provided that it is
imposed by the law (if there is legal duty).
Ergo: imposing duties are unwise, but it involved no breach of any defensible
principle that law should not enforce morality.
2.
III.
requirements to refrain from acts that cause indirect har to others
On Liberty -- Mill wrote that the only purpose for which power can be rightfully
exercised over any member of the state, against his will, it to prevent harm to
others because when people harm others, this affects others through their
sympathy and interest.
When an action will certainly cause harms to others, such action shall be
the basis of regulation.
Future harms
(a)
consequentialist restraint in the initial stage is more effective
(b)
non-consequentialist man has right to liberty thus people should
not be restricted just because others lack control and will end up
doing harm.
When there is risk that one will become a burden to the society:
(a)
consequentialist: value of liberty might somehow be weighed
against likely cost
III.
Requirement to refrain from actions that hurt oneself.
A.
Mill supports non-restriction because a persons own good, wither
physical or moral is not sufficient warrant for society to exercise power
over him. In all personal conducts, his independence is absolute.
VII.
VI.
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Ambiguity in the word natural (natural because: 1) derived from human reason,
2) accessible to out natural faculties or 3) derived or expressed in nature or 4)
combination of the 3)
D.
Perspective
Cicero, Aquinas and Grotius all concerned with what legislators and citizens and
governments ought to do or could do on good conscience.
B.
Early Church Writers
Source of higher standard is the divine being who actively intervenes in human
affairs
John Finnis
First Level: There are a number of distinct but equally valuable intrinsic goods
(that is things one values for their own sake) = basic goods
a) life (or health)
b) knowledge
c) play
d) aesthetic experience
e) sociability
f) practical reasonableness
g) religion
Second Level: Because there are variety of basic goods, with no hierarchy or
priority among them, there must be principles to guide choice when alternative
courses of conduct promote different goods (difference of Finnis with
utilitarianism. Utilitarian believe that all goods can be compare according to
their value in a single unit ex, in promoting happiness)
Morality then offers a basis for rejecting certain available choices; one choice
would remain (differ again with utilitarians: they talk of the best choice)
The move from the basic goods to moral choices occurs through a series of
intermediate principles (a.k.a BASIC REQUIREMENT OF PRACTICAL
REASONABLENESS)
Intermediate principles:
1.
end never justifies the means (where the chosen means entails intending
to harm a basic good)
2.
one should forma rational plan of life
3.
have no arbitrary preference among persons
4.
foster common good of the community
5.
have no arbitrary preference among the basic goods.
Law enters as a way of 1) affecting some goods and making it easier to obtain
goods
Persons have obligation to obey just laws (like Aquinas); laws which are unjust
are not law in fullest sense of the term, one has no obligation to comply.
Aquinas
Four different kinds of law: eternal law, natural law, divine law, human positive
law
Derivation aspects
(a)
sometimes natural law dictates what the positive law should be
(like logical deduction)
(b)
natural law leaves room fro human choice (derivation is through
determining general principles derivation in the sense of making
specific or concrete)
Unjust laws failure with respect to any of the criteria; citizens have no
obligation to obey these laws. (unjust law in not law)
To say that unjust laws must not be obeyed because they are not laws in their
fullest sense is controversial: there are often reasons for obeying unjust laws:
(a) if the law is part of a generally just legal system
(b) public disobedience of the law might undermine the system
**Aquinas citizens are not bound to follow unjust laws if the law can be
resited without scandal or greater harm.
C.
Early Modern Europe
Grotius
A higher law against which actions of nations, law makers could be judged.
Separation of natural law from the divine being (already evident in the writings
of Gregory of Remini)
II.
A.
B.
1.
Fuller no sharp separation between law and morality; rejected the oneway projection of authority (government makes laws; citizens obey; law is
a form of guiding people; a means to an end
Internal morality of law or principles of legality (series of requirements): in
order to consider something law, it must meet a certain criterion or
threshold (based on function and not content):
law should be general;
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2.
3.
4.
5.
6.
7.
8.
- 10 -
B.
MOORE: legal terms and moral concepts all have meaning determined by the way
the world is, not by beliefs
WEINREB: legal formalism: law has immanent moral rationality; one can speak of
essece of nature of law in various parts of doctrines within the law
C.
II.
1.
LEGAL POSITIVISM
Coleman and Leiter
I.
II.
A.
H.L.A. Hart
1.
Criteria of legality
2.
Normativity or authority of law
Uses descriptive sociology, that is an analytic classification of the uses to
which the concept is actually put in real social practices
Ronald Dworkin
Objections to positivism: moral principles can be legally binding in virtue of
the fact that they express an appropriate dimension of justice and fairness.
Distinctions:
(a)
Conditions of legality (or legal validity)
(b)
Meaning of a valid legal rule
He does not claim that the validity of legal principles depends on their
morality, but he believes that in interpreting the meaning of valid legal
rules it is often necessary to consult moral principles.
Does not claim that morality is a criterion of legality
Jurisprudence must provide a credible account of certain features he finds
in adjudication-ex. Judges disagree
Central figure: laws interpreter: the appellate judge
Raz
Sociological inquiry can be detached from the linguistic one. We do not
want to be slaves of words. Our aim is to understand society and its
institutions.
Legality and authority
Hart
Criteria of legality
a. restrictive construal- (Raz) it can never be a criterion of legal
validity that a norm possess moral value, it must be some social
fact (ex. Source: legislature)
b. inclusive construal- incorporationism, positivism is committed
to 2 weaker claims:
i. not necessary that in all legal systems that for a norm to
be a legal norm, it must possess moral value
(Coleman:Negative Positivism)
ii. what norms count as legal norms is a matter of social
convention (can include convention/agreement among
relevant official to make the moral value of a norm a
condition of its legal validity
Note:
Even if there may be an overlap between morality and law, it does not violate the
separability thesis because thesis involves only a claim about the conditions of legal
validity.
2. A practical authority is a person or institution whose directives provide
individuals with a reason for acting. (in compliance thereof)
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*in order to be law, a norm must be required by morality. Morality has authority in
the sense that the fact that a norm is a requirement of morality gives agents a
reason to comply with it. If morality has authority, and legal norms are necessarily
moral, then the law has authority too. Norms are the compelling reasons why
agents follow the law, so if norms are required for the authority of morality, and
norms presupposes the authoirty of the law, then if morality has authority, so is
law..so its like the norms are the requirements for authority of law and morality.
- 11 1.
2.
3.
C.
D.
*For law to be authoritative, it must provide citizens with a reason for acting that
they would not otherwise have. If all legal requirements are moral requirements,
then the fact that a norm is a norm of law does not provide citizens with an
additional reason for acting. (its like not giving any reason at all because if laws and
morals are same, then what pushes one person to follow morality will be the same
reason he would use to follow law.) then it would fail to account for the authority of
law.
6.
1.
2.
A.
John Austin
will or command theory of law.
Law is the order of a sovereign backed by a threat of sanction in the
event of non-compliance.
Norm is law only if it is given by the sovereign. Legality is determined by
its source; criteria of legality are matters of fact, not value
Its normative force is the threatened sanction. Without sanctions, it would
be just like requests. Sanction is the reason to act as desired by sovereign.
B.
Rule
of
recognition
Expands Liberty
Austin
Individual
who
has secured the
habit
of
obedience
Sanctions
Liberty limiting
A.
B.
C.
D.
E.
1.
2.
B.
5. Hart
law consists of rules of two distinct types:
primary rules-limit or expand liberty
secondary rules- about the primary rules
(a)
create a power to legislate
(b)
create a power to adjudicate
(c)
a rule of recognition-not a power-conferring rule. Sets our
conditions that must be satisfied in order for a norm to count as
part of the communitys law.
Three kinds of legal rules:
Difference between
A.
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F.
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9.
Judicial Discretion
A.
1.
2.
3.
4.
B.
C.
1.
2.
3.
4.
A.
1.
2.
A.
1.
Hart
why is judicial discretion unavoidable?
Rule of recognition- sets forth the conditions necessary for a norms
counting as part of a communitys law.
Open texture of language
NOTE: if no norm satisfies the rule of recognition. Judge has to go beyond
the non-legally binding standards. Even if there are binding legal norms,
discretion may still be required. Legal rules are expressed in general terms.
Judge must exercise discretion and in effect legislate meaning. They appeal
to moral principles and social policies.
There is distinction between easy and hard cases that parallels the
distinction between the core and penumbra of a concept.
Judges appeal to moral principles and social policies that are not
themselves binding legal standards.
As other positivists, allow moral principles to be legally binding standards
provided their being law depends on their satisfying a condition in the rule
of recognition.
It is not their morality that makes them law but the fact that they meet the
standards under rule of recognition, not their truth.
Law as a rule-governed (normative) practice, where rule-governed is
always intended to be broadly construed as to include customary practices
and other norms.
The legality of those norms be established by rule of recognition.
B.
Incorporationism
legality
and
the legality of moral norms is not a function of their morality, but their
validity under the rule of recognition
the rule of recognition asserts that certain norms are law provided they
meet the demands of justice.
Incorporationism depends on a rule of recognition incorporating morality
into law.
Dworkin
(a)
rule of recognition that incorporates morality into law cannot be a
social rule, which requires a pattern of convergent behavior.
(b)
denies that legal positivists can be incorporationists. Why?
(1)
(2)
(3)
(4)
(5)
Coleman
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2.
E.
F.
A.
1.
of
ruled out Austins sanctions and Harts term of the internal point of view
C.
Joseph Raz
reason is the right reason that applies to us in settling the issue of what
we ought to do.
Hart- sanctions do not adequately explain the claim that law makes to
being a practical authority, a claim whose truth or falsity would not hang on
whether particular legal directives were backed by threats.
D.
Relationship between the reasons law supplies and those that already
apply:
NOTE: The claim to legal authority is based on the thought that the reasons law
provides replace the reasons that otherwise apply to us because acting on the
former will enable us more fully to comply with the demands of the latter than we
will by acting on the basis of them directly. However, there are areas in which we
have expertise, and law commits mistakes, laws authority therefore will be
incomplete at best.
11. Incorporationism
authority
and
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In determining whether a norm is a valid law, one would look into the
underlying justificatory reasons, then it would be incompatible with treating
the law as an authority, because to treat law as an authority, it so forego
assessing the justificatory reasons. Authority presupposes foregoing
precisely the sort of inquiry incorporationism appears to invite. But that
really does not provide us the reasons that justify the law.
Argument against incorporationism: of the law is to be an authority, the
rule of recognition must serve an identification and not merely a validation
function.
o
It must serve an identification function: Why? Law is an authority
only if individuals acting on the basis of it will do better than
following their own right reason. For individuals to act on the basis
of laws directives, they have to be aware of what the law is, and
what it requires of them. It must make the law accessible to
them. It must fulfill the epistemic function of identifying what the
law is. However, moral reasons on identifying the rule as law need
not coincide with its justification.
o
If moral principles are essential to the practice by which ordinary
citizens come to recognize which of the communitys norm count
as binding law, then the rule of recognition will not discharge its
epistemic function.
Hart- grants the centrality of the rule of recognitions epistemic function
and that incorporating morality into law makes it more uncertain. The
exclusion of certainty is not the goal for rules of recognition. There should
be a margin for uncertainty, so that an informed judicial decision can be
made, and so that its decision can be identified and rationally settled.
Positivists might argue that Raz is mistaken to think that authority of law
requires that there be no uncertainty in corporationism.
Other incorporationists questions whether incorporationism really renders
law uncertain. (coleman)
Argument for authority depends on citizens to identify and act upon the law
that applies to them.. this authority may or may not be the rule of
recognition. If citizens do not use the rule of recognition, it must be the
rule of identification, what is required of it is that it be a reliable indicator
of what turns out to be a valid law. It also might be that they turn to laws
only if it satisfies the sources thesis. In that case, the sources thesis
would only be a constraint on the authority of the law and not on its
validity. Incorporationism then would be compatible with validity. The
sources of thesis would be a condition of legitimate authority and not a
constraint on the standards of legal validity.
All positivists really require is that there exist some practice that enables
ordinary citizens reliably to determine the law, no necessarily the rule of
recognition.
Sources thesis then would impose a constraint on the rule of identification
and not the rule of validation. For there to be a law, there must be a
validation rule- one that is broad that incorporationism allows.
For law to be authoritative, there must be an identification rule-one that
may not be so broad.
- 14
A.
The concept of justice must not be based on the utilitarian ideal: greater
good for the greater number
(a) the loss of freedom of some is cannot be made right by a greater
good shared by others
(b) sacrifices of the few are not outweighed by the larger sum of
advantages enjoyed by many
Rights secured by justice are not subject to political bargaining. Truth and
justice (first virtues of human activities) are uncompromising.
B.
C.
D.
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no one knows his place in the society, his class position or
social status
no ones his fortune in the distribution of natural assets and
abilities, his intelligence and strength.
Parties do not know their conceptions of the good
(1)
(2)
(3)
E.
F.
G.
H.
I.
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Principles of justice are chosen behind said veil of ignorance, thus, such
principles are the result of fair agreement or bargain.
The original position is the appropriate status quo thus the fundamental
agreements reached in it are fair.
Steps in formation of justice as fairness:
(a) It begins with the choice of the first principles of conception of
justice.
(b) Choosing a constitution and legislature to enact the laws
It is presumed that these steps are in accordance with the original
agreements initially agreed upon.
The general recognition of the fact that everyone views their arrangements
as meeting the stipulations and their choice of principles would provide the
basis of public acceptance of the corresponding principles of justice.
In this sense, the members of the society are autonomous and the
obligations they recognize are self imposed.
II.
Principle of utility requires lesser life prospects for some simply for the sake
of a greater good enjoyed by other
Each desires to protect his own interest, no one will agree to an enduring
loss for himself in order to bring about a greater net balance of
satisfaction.
III.
A.
I.
II.
B.
These principles pre-suppose that the social structure can be divided into
two or more or less distinct parts.
basic liberties that are required to be equal
those that specify and establish social and economic inequalities applies
to the distribution of income and wealth and to the design of organizations
that use different kinds of authorities or chains of command.
While distribution need not be equal, it must be accessible to all and must
be to everyones advantage.
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These principles are to be arranged in a serial order with the first principle
prior to the second. This ordering means that a departure in the liberties
required by the first principle cannot be justified by greater social and
economic advantages.
Distribution of wealth and income, and the hierarchies of authority must be
consistent with both the liberties of equal citizenship and equality of
opportunity.
Conception of Justice based on the two principles:
All social values liberty and opportunity, income and wealth, and the bases of
self-respect are to be distributed equally unless an unequal distribution of any,
or all of these values is to everyones advantage.
What is injustice? Injustice is inequality that are not to the benefit of all.
IV.
A.
B.
- 16 Final Notes:
In justice and fairness, men agree to share one anothers fate
Institutions which satisfy these two principles (which is a fair way of meeting the
arbitrariness of fortune) are just.
It does not require the society to try to even our handicaps as if all were
expected to compete on a fair basis in the same race.
We are led to this principle of we wish to set up the social system so that
no one gains or loses from his arbitrary place in the distribution of natural
asses or his initial position in the society without giving or receiving
compensating advantages in return.
A.
B.
Freedom
(a) Too often, it is an absence of external restrictions on my native capacity for
self-determination
(b) Too seldom, it is recognized that the greatest obstacle to freedom is within
me, that, quite apart from what other do, I need more than free will to be
free.
Free act is one for which I am responsible (it is an act which I am the
source, ergo, freedom is identical with my selfhood; with my capacity to
act on my own.
Bu the fact that I am responsible for what I do does not mean that my
actions are responsible actions
Ambiguity in the Notion of responsibility
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The ability to act rationally thus presupposed and arduous shifting of lifes
focus. It means putting the Other in the forefront in place of misled and
learning to respond to the requirements instead of yielding to caprice.
Apart from it, there is no freedom at all worth the name, for it is that
dying to self is the only portal to life and to the freedom of children of
God.
- 17 -
A.
I.
B.
What is freedom?
Determinist
1.
2.
(b)
(c)
As a human being, man can always refuse to follow the stimulus response
mechanism.
Such refusal can only be understood under the postulate of the existence
of freedom.
Libertarians (C.A Campbell and C.D. Broad)
Using the Kantian distinction, they supposed that in order to account for
any kind of responsible human behavior, freedom must be a necessary
presupposition.
(a)
even the choosing of rewards and punishment in Skinnerian
community will have to be chosen by an engineer.
(b)
Degree of rewards and punishments will have to correspond to the
degree of responsibility. (ex. A judge in adjudicating a case
determines the degree of responsibility contributed by the criminal
to the accomplishment of the crime.)
(c)
This act of choosing presupposes freedom on the part of the
agent.
Determinist must presuppose freedom.
Determinism presupposes that the determinist is free to argue for determinism.
Otherwise, it would be more absurd to argue that man is already determined to
be determined.
Freedom then is the cause, which determines human behavior.
C.
II.
The problem: RELATIVISM: there are many ways of conceiving man which
leads to different norms that determine mans choices.
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- 18 -
(b)
III.
Karol Wojtyla
Instead of analyzing human being by means of class conflict, Wojtylas mind
attempted to solidify the inherent CLOSENESS between human beings.
Class struggle is not the vehicle for social transformation but SOLIDARITY
MOVEMENTS and PARTICIPATORY DEMOCRACIES.
Aim of Wojtylan political program is to simultaneously transform the individual
members and social structures from objective totalisms toward participatory
and communal membership.
In Wojtylas perspective: ALIENATION (like that of Marx) is the starting point in
understanding freedom. But Marxs second premise that: the only way to
attain liberation is through revolutionary overthrow of those who of not share in
the essence of man as homo-faber, shall be done away with
Man should now be treated in a more synoptic vision of his being as BEING.
(Being qua Being)
Liberation will bring about emancipating conditions of those who belong in one
particular class but to the whole community.
Instead of revolution as a means of negating alienation, the Wojtylan political
methodology would propose the POSITIVE AFFIRMATION of the human being
qua Being in terms of solidarity and participation.
IV.
Radical will of the good the bridge that connects the objective order of values
and the matrix of personality structure of human being. Human freedom is oriented
precisely by this will for the good.
Thus: Freedom is always intentional because it is always intending, reaching out
striving for the good.
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Libraa balancing stem held by the must of justice, the root of the words
deliberate and equilibrate
V.
A.
Rhetoric of human rights is universal. A lot calls for the observance of human
rights, but in practice, the state continues refuse to giving such rights to its
citizens, of course except when applying for aid from the UN. But as soon as
the crisis is alleviated, the state return to its usual habits of violating human
rights.
B.
Logic:
Destructive dilemma between freedom and justice: can only happen if justice
is state in crude populist terms (human beings can be uniformed in one
essence; supposes that everyone is equal. But this is problematic equality
can become an ideal goal but never the starting point of social change) and
freedom is sated in rugged individualistic assertions (does not consider
Rawls natural and social lotteries or inequalities during birth which could hinder
an individual in participating for the common good.
Introduction
Positive rights vs. Critical rights (echoing H.L.A Hartss distinction between
positive and critical morality)
(a)
positive rights rights recognized within some appropriate system
of actual, operative rules; LEGAL RIGHTS are POSITIVE RIGHTS.
Other examples: religious rights
Note: MORAL RIGHTS may also be positive rights in circumstance when a
recognized system of moral rules entitles one to make a legitimate claim. (ex.
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Parents claim a positive moral right of obedience from children, children claim a
positive moral right of independence from parents).
When a system of domestic regulation binds persons, this is how moral rights work
C.
- 20
D.
Justification of Rights
1.
Lockean Themes: Mode of Ownership
Locke offered the most straightforward argument for natural rights.
Mankind is Gods creation. We cannot act as his trustees unless our lives,
health, liberty and possessions are respected. We have a natural right to
these goods, subject to our respecting equivalent claims of others.
Natural right is a right asserted in accordance with natural law (Gods law).
Thus, we can claim against others that (negatively) they do not interfere
with our life in Gods service) and (positively) as parents, that they provide
us with the means of properly human life).
Natural law and natural rights are discernable by reason.
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Locke tackles the hard problem of the right to private property through his
doctrine: THESIS OF SELF-OWNERSHIP, which provides that every man
has a property in his own Person, nobody has a right to but himself.
This thesis that we naturally own ourselves is often used to legitimatize
slavery.
However, some would say that this right is inalienable, thus
slavery is unjustifiable.
It may be justified that the rights of persons can be derived from the fact
that he is the owner of himself.
2.
Autonomy
H.L. Hart argued that that, if there are any moral rights at all, it follows that
there is at least one natural right, the equal right of all men to be free.
Interest
(a)
natural groups are those groups of which agents find themselves
to be members. (ex. family, state)
(b)
artificial groups enlist members on the basis of declared
prospectus; may be identified in terms of antecedent interest
which the members promote.
Note: Group membership forms as well as serves individual interests, even in the
case of those original interest is self-interest -- this is termed as Mediation of the
Particular through the Universal (Hegel).
E.
F.
- 21 -
A.
A.
B.
C.
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A person who kills another is expected to be handed over into the parents or
next of kin of the deceased
According to Maine: As the state develops, the individual is substituted for the
family as the unit of which civil laws take account.
They arise in opposition to the customary order and represent a new set of
social goals pursued by a new and unanticipated power in society which can be
reduced to a single imperative: census-tax-conscription system (conscription of
labor, levying of taxes and tribute and assessment of the location and numbers
of the population being subjected)
Major Direct and Indirect Occasions for the development of Civil Law: Census
-- represents the potential power of the state; carefully guarded; essential for
conscripting men and provides the basis for taxes.
Double meanings of certain terms in English which reveals the conflict between
local usage and the census-tax-conscription system of early state:
a) duty means moral obligation and tax
b) court residence or entourage of sovereign; a place where civil justice is
dispensed
- 22
VI.
Difference with Joint Family systems
The theory of eye for an eye never really held for primitive people.
Replacement for loss with damages and not through retribution.
In the proto-state, the struggle was over the lives and labor of the people.
VII.
Law and Disorder
If revolutions are the acute, episodic signs of civilizational discontent, the rule
of law has been the chronic symptom of the disorder of institutions.
Among lessons to be learnt from the life of rude tribes is how society can go
without the policeman to keep order (Taylor).
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The tradition of Plato and Machiavelli comments the use of the royal or noble
lie while Marx exposes and rejects power structure that propagates false
political consciousness.
The state, has assumed monopoly of political co-ordination (Vinogradoff). It is
the state which makes laws and eventually forces them, by coercion (did not
exist in ancient times)
State created a public power of coercion that did no longer coincide with the old
self-organize and armed population.
Engles writes that the state is the alienated form of society. Why? Because the
state is a power forced on society at a certain stage of evolution. State is
necessary in order for the classes with conflicting economic interest may not
annihilate themselves in a useless struggle. But as time passes, the supremacy
of state becomes more and more pronounced and later on becoming more
divorced from the state.
VIII.
The response to civil law
The struggle for civil rights, then, is a response to the imposition of civil law.
Law has its origin in the pathology of social relations and functions only when
there are frequent disturbances of social equilibrium.
Law arises in the breach of a primary customary order increases in force with
conflicts that divide political societies internally and among themselves.
Law and order is the historical illusion: law versus order is the historical reality.
- 23 (b)
II.
A fresh start
The simple model of law as the sovereigns coercive orders failed to reproduce
some of the salient feature of the legal system. Why?
1.
In all varieties of law, a criminal statue forbidding or enjoining actions
under penalty most resembles orders backed by threats (for one, there
is not continuing belief in the consequence of disobedience; order
backed by threats are only addressed to a particular person)
2.
There are other varieties of laws conferring legal powers to adjudicate
or legislate or create /vary legal relations which cannot be construed
as orders backed by threats
3.
There are legal rules which differ from orders in their mode of origin
because they are brought into being by anything analogous to explicit
prescription.
4.
The notion of law in terms of sovereign habitually obeyed failed to
account for the continuity of legislative authority characteristic of a
modern legal system.
Ancillary devices used in criticizing the conception of law as the sovereigns
coercive orders.
(a)
Notion of tacit orders have no application to the complex
actualities of a modern legal system. Only applies to simpler
situations.
Secondary Rules
type of rule which is in a
sense
parasitic/dependent upon
the first
confer powers, public or
private
provide for operations
which lead not merely to
physical movement or
change,
but
to
the
crayon or variation of
duties or obligations.
Have
to
do
with
operatives
To enforce the basic
goods
In the combination of these two rules, there lies the law (key to science of
jurisprudence).
III.
The Idea of Obligation
Where there is law, there is human conduct which is made in some sense nonoptional or obligatory (after all, law is obligatory).
Notions of Obligation:
1.
The gunman situation: I was obliged
In this notion, facts about beliefs and motives are not sufficient to
warrant a statement that one has an obligation to do something.
/vvverga 102504
That one has an obligation does not necessarily mean that one has
accomplished such an obligation.
Note: theorists like Austin, seeing perhaps the irrelevance of ones personal belief,
fears and motives if one has an obligations to do something, has defined this
notions in terms of Chance or Likelihood that a person having an obligation will
suffer punishment at the hand of others in the event of disobedience. Statements
of Obligations then are not psychological statements but PREDICTIONS or
ASSESTMENTS of incurring evils.
IV.
There are reasons for rejecting the claim that statement of obligations are
mere predictions of incurring evils.
1.
predictive interpretation obscures the fact that where rules exists,
deviation from them are not grounds for a prediction that hostile
reactions will follow or sanctions will be applied,
2.
if it were true that if a person has obligation them he was likely to
suffer in the event of disobedience, then this would be a contradiction
of the notion of obligation.
Note: in normal legal system, where sanctions are exacted for a high proportion of
offenses, an offender usually runs a risk of punishment, so the statement that a
person has an obligation and the statement that he is likely to suffer for
disobedience will both be true together.
Obligation is not to be found in the gunman situation, though the simpler notion
of being obliged to do something may be present.
The statement that someone has or is under an obligation does indeed imply
the existence of rule. Why?
(a)
the existence of such rules makes certain behavior a standard
which is a proper background for such statement.
(b)
The distinctive function of such statement is to apply such a
general rule to a particular person by calling attention to the fact
that his case falls under it.
However, this is not always the case that where rules exist the standard of
behavior required by them is conceived of in terms of obligation. (example:
rules of etiquette or correct speech are rules but they are more than
convergent habits than behavior. They are rules that are followed but they are
not obligations)
V.
What makes rules obligations?
A.
Rules are imposing obligations when the general demand for conformity is
insistent and the social pressure brought to bear upon those who deviate
or threaten to deviate is great.
When sanctions are physical, these are rules that can be classified as primitive
or rudimentary forms of law.
The seriousness of social pressure behind the rules is the primary factor
determining whether they are though of as giving rise to obligations.
- 24 B.
They are necessary to the maintenance of social life (ex. those that restrict
free use of violence, rules which require honesty or truth or require
keeping of promises or what is to be done)
C.
The obligations and duties are thought of as characteristically involving
sacrifice of renunciation because the conduct required by these rules may,
while benefiting others, conflict with what the person who owed the duty
may wish to do.
Note: because of this, vinculum is created (a bond). The first task is to know
whether there is a right. Rights and duties are only attuned if it is good: how do we
know if its good? Because of reason.
VI.
Internal and External Point of View
1.
internal point of view : The way a group assess its own behavior (I
have an obligation)
2.
external point of view the way rules function in the lives of certain
members of the group as seen by a non-member or those who reject
its rules and are only concerned with them when they have judged
that unpleasant consequence are likely to follow violation (I was
obliged to do it).
Note: the external observer would just give an account on how other members
of the group would follow the rules and he would observe that any deviations
by a member of the group can be a sign that hostility is likely to follow.
Violation of the rule for them is not merely a basis for the prediction that a
hostile reaction will follow but a reason for hostility.
VII.
Elements of Law
For a society to live by such primary rules alone, there are certain conditions
that must be followed:
1.
Rules must contain in some form of restrictions on the free use of
violence, theft and deception which human being are tempted but
must be repressed
2.
Those who reject the rules cannot be more than a minority, if not, the
society will be loosely organized.
(ex. in primitive societies, although there are dissenters, the majority live by
the rules seen from the internal point of view)
However, these rules may prove defective in other conditions. What are
these defects?
(a)
Uncertainty the rules which the group lives will not form a
system but will simply be a set of separate standard without
identifying common mark, thus,
(b)
Static character of the rules the only mode of change in the
rules known to such a society will be a slow process of growth.
(c)
Inefficiency in diffusing social pressure by which rules are
maintained. Lack of final and authoritative determinations.
/vvverga 102504
In early law societies, they may be more than that an authoritative list
or text of the rules found in written document, carved in public
monument (were reduction to writing of unwritten rules).
(b)
Rules of change: a rule that which empowers an individual or body
of persons to introduce new primary rules for the conduct of life in
the group.
(c)
Rules of Adjudication to empower individuals make authoritative
determinations; do not impose duties but confer judicial powers
and a special status.
Note: these secondary rules shall provide the centralized official sanction of
the system.
Conclusion: under a simple regime of primary rules, the internal point of
view is manifested in its simplest form as the basis of criticism, justification
of demands for conformity, social pressure and punishment. With the
addition of the secondary rules, the range of what is said and done from the
internal point of view is extended and diversified. Concepts like validity,
jurisdiction, legal powers etc are created.
B.
C.
- 25
In our own system, custom and precedent are subordinate to legislations since
customary and common law are deprived of their status as law by statute
They owe their status of law from the acceptance of rule of recognition.
Rule of recognition is not state but its existence, shown in the way in which
particular rules are identified either by courts, officials, etc.
Related to efficacy: meant that the fact that a rule of law which requires
certain behavior is obeyed more often than not.
Efficacy and validity do not have connection unless the rule of recognition
of the system includes among its criteria that no rule is to count as a rule
of the system if it is not efficacious (rule of obsolescene).
The rule of recognition providing the criteria by which the validity of other
rules of the system is assessed in an important sense, an ultimate rule:
where there are several criteria ranked in order of relative subordination,
and primacy, one of them is supreme.
F.
Ultimacy of the rule of recognition and supremacy of one of its criteria
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Note: we stop in the last statement because we have reached a rule, which provides
criteria for assessment of the validity of other rules (an ultimate rule)
But to say that a rule is valid because it is used by the courts and other officials (or
that the system is an excellent one) is already moving from an internal statement to
an external one/statement of value. (we are already judging the efficacy of the rule)
G.
H.
A.
Carried out against the will of those subject to the order through
employment of physical force
- 26
B.
II.
Sanctions: Criminal and Civil
In the national law, there are two different kinds of sanctions:
A.
Punishments forcible deprivation of life (capital punishment) or freedom
(imprisonment)
A.
B.
C.
IV.
Delict
/vvverga 102504
V.
VI.
A.
B.
Collective Security
Individual responsibility
(if I commit a delict, no
one
else
would
be
responsible for that delict
but myself)
- 27 Note: the difference between an obligation and responsibility manifest itself in the
fact the an individual can be obliged only to behave in a certain way, to his own
behavior but that an individual cannot be obliged that another individual shall
behave in a certain way to the behavior of another.
An individual can be responsible not only for his own behavior but also for the
behavior of another individual.
Exists in the case of blood revenge which is directed not only against the
murderer but also against all the members of his family.
/vvverga 102504
1.
2.
IX.
Self-help and Collective Security
Principle of self help is eliminated if the legal order reserves the execution of
the sanction to a special organ, that is, if the force monopoly of the community
is centralized
- 28
X.
XI.
Law and Peace
Without laws, without social order where force monopoly is established, there
will be no peace.
INTERNATIONAL LAW
I.
Definition
International law is true law if the coercive acts of states, the forcible
interference of a state in the sphere of interests of another state is permitted
only as a sanction against a delict.
The employment of force undertaken as a reaction to a delict can be interpreted
as a reaction of the international legal community.
/vvverga 102504
- 29
Note: this only applies on general international law (customary laws) and not
particular laws (treaties)
II.
War
Note: legality or illegality of war depends on whether it is waged by one state
against another unilaterally or it is just a counter war. A war (aggressive war)
waged by one against another state is said to be illegal. A counter war is legal
(it is a sanction).
International delicts
Conduct of states, which is illegal, contrary to international law.
It follows that international law is a system of norms, which prescribe or permit
a certain conduct for states. Question: are there sanctions for these delicts?
III.
International Sanctions
A.
Sanction and Obligation of repatriation
States are not obliged to comply with any unilateral demand for repatriation
made. There must first be an agreement in order for a concrete obligation to
make repatriation to exist. This is different under the national law no such
agreements exists because we have courts that would determine whether a
delict, and consequently, repatriation is exists.
Sanctions of International Law can only be enforced by individual states and not
by special organs (decentralization).
/vvverga 102504
Rousseu rejected this view, affirming the natural goodness of man before he is
corrupted by society
A.
Ex.
(a)
II.
the thirty years war the climax of the war of religion pitting
Catholics, Calvinist, Lutherans and orthodox against each other.
(b)
the Muslim Jihad regarded as self-defense; a combination of religious
fanaticism and political and economic greed under the dignified
umbrella of nationalism and racism (originally, Jihad for Islam is to be
primarily waged wither for protecting the interest of the oppressed and
the weak or to defend oneself against aggression)
Edict of Nantes and the Treaty of Westphalia formation of nations states; each
religious groups were kept in their own territory (cuius regio eius religio).
The partition of religions by territory was also the result of the Enlightenment.
These produced religious indifferentism : all religions are the same and should
be tolerated as long as they do not fall prey to dogmatism or cause social
disturbance
However, religious toleration is opposed by the Catholic church because what
should be maintained is religious liberty (the right to worship God in accordance
with ones conscience, free from external control), not toleration.
Hope for the future
Efforts in the past ended in failure precisely because the means employed were
violent. If violence was used to stop violence, it will generate more violence.
The only way to achieve peace is to abstain from violence
TRUTH ABOUT MAN
(a)
that the dignity of human person is rooted in his transcendence or
capacity of self-surpassing through knowledge and love which
makes human person a subject of rights
(b)
These human rights are the core of human essence and thereby of
human existence, permanent, inalienable, and God given.
(c)
The recognition of this truth about man is the only possible
platform for a dialogue toward peace.
(d)
The inseparable link between peace and human rights
(e)
The truth is a common patrimony of mankind and not exclusive
concern of any particular religion but common possession of all
religions open to the transcendence of God; calls for religious
freedom
(f)
This is an argument based on reason and not based on religion
- 30
The papal discourse combated directly the core of Marxist ideology : the
suppression of individual personal freedom and the total absorption of man into
the community. The is why Marxism is unable to recognize the transcendence of
human person.
Freedom is indispensable for peace but not sufficient because it naturally entails
the risk of misuse, but a risk that must be taken for man to achieve the
common good
Common good is not the greatest goof for the greatest number but the good for
every man and the whole man.
TWO GREAT ENCYCICALS ON PEACE
Pacem Teris: by the natural law, every human being has the right to respect for
his person, to his good reputation.
Populorum Progressio: every man is called upon to develop and fulfill himself,
for every life is a vocation. By the unaided effort of his own intelligence and his
will each man can grow in humanity, can enhance his personal growth, can
become a person.
III.
Recent attempts to promote an Institution of peace
Francis
****Francisco de Vitoria precursor and the Father of International Law
Emphasize human rights as a condition for peace and order, an idea partially
reflected in the American declaration of Independence.
During these times, the old formula if you want peace, prepare for war was
replaced with if you want peace, respect human rights
The list of human rights starts with the right of the unborn. Thus, the greatest
destroyer of peace today is abortion because it is not just a war against the
child, it is a direct murder by the mother herself.
In Populorum Progression, it was said that DEVELOPMENT is the new name for
PEACE. Development is defined as the total promotion of man based on an
integral humanism
Cooperation and solidarity are natural extension of the underlying unity of all
mankindshould not be confused with pacifism or peace at all costs or
irenecism of compromise at the expense of truth.
/vvverga 102504
catholic means universal in outlook, at the same time, involved in the reality
of actual peoples and communities
Christianity, with its radical natural law affirmation of the fundamental equality
and dignity of all men, fermented social change (especially in the institution of
slavery that was espoused by Aristotle)
The idea of slavery (and forced labor) made war necessary in order to conquer
new land and new slaves.
Christianity always defended and protected the dignity of man and his labor.
Revolutionary ideas ushered in, not due to Lockes liberal reaction to Hobbes
absolutism but from the work of 16th century Spanish economist like de Vitoria.
IV. Works of de Vitoria
Spelled out the inviolable rights to life, to liberty, and to self-rule including the
right to private economic initiative and to participation in public life.
Due to Vitorias lectures, Pope Paul III authorized the excommunication of those
colonists in the New World who deprived the natives of life, liberty or property
thus, Charles V promised to promulgate the New laws of the indies to
guarantee rights
It was Vitoria who set in motion the revolution of human rights which
crystallized in modern democracies and contemporary international
organizations.
- 31
C.
D.
The power bestowed on rulers by the people but not by the people as numbers
but to the people as a community of persons aware of their subjective
responsibility and dignity as beings open to infinite transcendence and objective
value.
Accdg. To Jacques Maritain, there is no need to add that the will of the people is
not sovereign, that what would please the people would have the force of law.
The right of the people to govern themselves stem from natural law. An unjust
law, even if it expresses the will of the people, is not a law.
Based on natural law (ex. no one is a slave by nature Aquinas)
Philosophy of power (Hobbes, Rousseau etc)
Continued from the French revolution on to modern individualism (democracy
of the individual) and achieved in totalitarian socialism
In the declaration of the rights of man (product of French revolution) it is state
that the law is an expression of the general will not a rational ordering. Such
thinking would lead to democracy of tyranny
Problem with this declaring law as expression of general will: men are deprived
of a point of reference beyond and above themselves, thus, men can now turn
to one another as wolves and try to make a Leviathan, an absolute state to
impose order on all.
Socialist or collectivist forms of Philosophy of power: Fascism, Nazism, etc.
Vitoria and his followers
Grotius should not be called the Father of international law for he merely
utilized Vitorias thesis on just war. Following Vitorias thoughts, Grotius roots
natural law on God as the author of human nature and natural sociability
Pufendorf enumerated the natural duties of man which he based on Vitorias
teachings:
(a)
to know God as Supreme Being
(b)
To know himself and his own nature well (to acknowledge
dependence to God)
(c)
To seek ones esteem and honor
(d)
To seek wealth with moderation
(e)
Subject passion to reason
(f)
To exercise just self defense
Conclusion:
Moral principles and guidelines are like human rights, universally valid and
inherent in human nature.
To achieve our goals of peace, an in-depth stuffy of the concept of law must be
undertaken with a thorough knowledge of history.
/vvverga 102504
- 32 forever). Case of Bonham: practicing medicine without license, EDWARD COKE said
that parliament has no right punishing the physician by saying that when parliament
is against the common right, common law must control it. CALVIN CASE: lex
aetarna or law of nature is infused into ones heat for preservation and direction..
WILLIAM BLACKSTONE: WILL OF THE MAKER, LAW OF NATURE. GEORGE MASON
all acts of legislature contrary to natural right and justice are void)
5 Modern jurisprudence: enlightenment; LAWS are man made (due to social
contract)
The jurisprudence of enlightenment is an individualist utilitarian
positivism: no room for institutions, family and other social groups between the
individual and the state (merely an exercise of WILL and not REASON) ex. ROE vs.
WADE; CRUZAN vs. DIRECTOR, MISSOURI where unborn and dying can be deprived
rights.
/vvverga 102504
10 The rational plan of divine providence demands that other creature be ruled by
rational creatures. Animals dont have rights. Man is a person because he is an end
to himself and not used for perfection of other beings.
11 Aquinas prefers monarchy the rule of one man is more useful than many for
achievement of unity of peace.
12 unjust law is not a law at all. A law can be unjust by: being contrary to human
good and opposed to Divine good. But it doest mean that it will not be followed,
when the law is hurtful to the general welfare, it should not be observed.
13 political absolutism or autocracy; Political/philosophical relativism (a way of
thinking that there are no absolutes): democracy. The purpose of human law is to
lead men in virtue not suddenly but gradually if not, greater evils will be produced.
14 human law cannot cover the entire field of virtue and vice
15 Before resorting to interpretation, original intent of the constitution must be
discovered (Mac Lelan)
16 provisions of the constitution have natural law content
17 judges can use natural law if the law is unjust (burdens are imposed unequally)
and void when the conflict between law or precedent and justice is intolerable or
unendurable.
18 universal skeptism is absurd; one who says we can never be certain of things
contradict himself.. I think therefore I am, cognito ergo sum. Those who say
otherwise have no ultimate explanation of the meaning of life.
19 the object of practical reason is good. This principle is self evident. We have
active intellect whose sole work is to throw light on the sensible image or phantasm
to make the universal stand out from the particular.
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