1 c philo midterms reviewer

PHILOSOPHY OF LAW (FR. FERRER, S.J.) 1C BAQUILOD CASTAEDA GAITE MURAO

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PREFACE Law is one of the institutions that allows man to live in

civilized society.

Growth of civilization has generally been linked with:

gradual development of a system of legal

rules

machinery for regular and effective

enforcement

Laws do not exist in a vacuum but are found together with

moral codes of differing complexity or definiteness.

There is tension between law and moral codes.

The belief in a Moral Law has an impact on how man

sees actual law prevailing in his society.

Moral Law is a higher law by which mere

man-made laws can be judged

Higher laws can override or nullify certain

human laws in history.

The most vital issue of the modern state is the freedom of

the citizen and its preservation.

Relationship between law and liberty is a close one:

either used for tyranny or gives effect to freedoms

Functioning of law has been closely associated with the idea

of a sovereign state.

Social sciences hold the key to shedding light on the issues

of legal institutions and rendering modern solutions.

The nature of the judicial process must be studied to

understand legal reasoning and development.

IS LAW NECESSARY? A DIALOGUE BETWEEN TWO LEGAL

PHILOSOPHERS (BY SOMMER) Aris and Bato, two legal philosophers who seem to be

representations of Aristotle and Plato

What would life be like without law? Is law

necessary?

Life without any law would be unrealistic and

exceedingly difficult.

Man needs law to live in society.

Life would be solitary, poor, nasty, brutish

and short. - Thomas Hobbes

Potshots against Lloyds approach:

Armchair philosophy - merely theoretical and

speculative ideas which do not deal with

realities and facts

Overstating the human nature argument - not

all men are prone to violence and theft

Human nature argument supposes

that all people are static in nature.

Discussion of representative laws leads to a

classification of laws:

Truly necessary laws (indispensable laws):

against theft, violence and potential

wrongdoers, guarantees private ownership

and compensation, redress of harm or broken

agreements


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Improves the quality of life in society

(necessary / useful laws): health, education,

public safety

Without these laws, life would be

wasteful and confusing.

Laws with debatable ends, not necessary

(convenient laws): religion, morality,

convenience

The extent of mans freedom determines the quality

of his life in society. - John Stuart Mills

Law facilitates efficient social change.

Men learned in law assist the layman in knowing and

applying such laws.

It is not needed that laws are true, but they can stand

because they are needed.

CHAPTER 1: IS LAW NECESSARY? Historically, law has been considered unnecessary by

ideologues and religious institutions

In every day and age, certain groups feel a certain

unease when it comes to authority while claiming that

their own denomination points to a happier life

However, they are not usually able to prove that their

doctrines are plausible

The Nature of Man

Ideology

Forms ones outlook about the world, upon

mans relation to society and the world

Law has an ideological character

Two views on the nature of Man

Punitive view

Man as demon, intrinsically evil

Law as indispensable restraint; society

impossible without law

Punishment, not rehabilitation

Positivist view

Man as angel, intrinsically good

Looks back to a Golden Age of

primeval innocence and simplicity

Defects arise from problems in

society, especially law and

government

Rehabilitation rather than punishment

The focus of current legal systems is law reform

rather than eliminating it completely.

Examples of the two views of human nature


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Type of Philosopher Stance Attributable Passage

1. Rosseau Occidental NO Harkening back to a Golden Age of idyllic primitivism

2. Legists Oriental YES Good ways of man attributable to teaching of rituals and restraints of penal laws

3. Shastra Oriental YES Men are covetous and passionate by nature. Without laws, the world would be a devils workshop which followed the logic of fish (rule of the stronger)

4. Bodin Occidental YES Mans original state is that of disorder and violence

5. Hobbes Occidental YES State of perpetual warfare, nasty, short, brutish life

6. Hume Occidental YES Without law, government and coercion, human society could not exist

7. Machiavelli Occidental YES Men are naturally bad and will not honor promises

8. Ovid Occidental NO Golden Age where Man knew right and wrong without need of laws (from the Metamorphoses)

9. Seneca Occidental QUALIFIED NO Primitive man was happy and ruled by the best and wisest rulers. However, the happy society was rent asunder by avarice / greed.

10. Augustine Christian Church Father QUALIFIED YES State law and coercion are not sinful but part of the divine plan in order to mitigate sin. However, in the Civitas Dei, or City of God / a mystical body, justice will rule. Thus, no more need for human laws.


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11. Aristotle Occidental YES Man has aggressive drives curbed by laws.

12. St. Thomas Aquinas Christian Church Father QUALIFIED YES State is not a necessary evil but a natural foundation for human welfare. Law is a guide for mans good / social impulses towards the realization of his goals.

13. Plato Occidental QUALIFIED NO Rational harmony ruled over by benevolent philosopher-kings rather than law. Later on, he would recant these statements and agree that laws are necessary in The Laws.

14. Adam Smith Modern-Day/ Anarchist QUALIFIED NO Laissez-faire economics, where government and law stifled the natural development of society; however, laws protecting property are needed for an efficient free market.

15. Godwin Modern-Day / Anarchist NO Evils of society are not from mans sinful nature but from the effects of oppressive human institutions. Moral and social norms rather than coercion.

16. Bakunin and Kropotkin Modern-Day / Anarchist NO The state, law, coercion and private property were the enemies of human happiness and welfare.

17. Tolstoy Modern-Day / Anarchist QUALIFIED NO Anarchy based on early Christian communities, non-violence and renunciation of private property Anecdote 1: The Stolen Waistcoat All have an equal right to anyones property. The colony did not survive. Anecdote 2: Landownership A man with a title appears. The colony is sent out and breaks up.


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18. Karl Marx Modern-Day / Anarchist QUALIFIED NO Law is a coercive system devised to maintain the privileges of the ruling class. However, creating a classless society will need an interim period where there is total state control over property. Marxism then tended towards coercion rather than abolition of law and state control.

19. Elliot Smith Modern-Day / Anarchist NO Man is whole, kind and well-intentioned. Civilization creates artificial aims which sow discord and envy.

20. Herbert Read Modern-Day / Anarchist QUALIFIED NO Man has always formed groups for aid and needs, however there needs to be harmonious interrelation between and among groups. Anarchists are concerned with such harmony and removing the need for hierarchies / rulers, not a society without order. Two ways of promoting harmony: Elimination of economic motives. Matters to be solved by common sense and innate good will of people *Only general rules and norms are needed but coercive apparatus of general control must be absent.

21. Sigmund Freud Modern-Day / Anarchist YES Man is not harmless or gentle. Aggressive drives can be suppressed but not totally eliminated. Living among men requires a repression of base instincts.


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CHAPTER 2: LAW AND FORCE

Myth of Anu and Enlil

Two gods singled out in reverence

Anu

God of the sky

Issued decrees which commanded

obedience by the fact of having

emanated from divine authority

Obedience as necessity, however

there is no guarantee of automatic

obedience

Symbol of authority

Enlil

God of the storm

Power of compulsion, god of coercion

Executes the sentences of the gods

and leads them in war

Myths reflect fundamental human attitudes and

purposes

Humans need order

Order demands two elements: authority and

force

Lack of authority does not allow public order

to flourish

Lack of force disallows the universe to enter

statehood

Order of the universe reflected

Mesopotamian society

Myths gave a cosmological foundation to link

legitimate authority with force on Earth

The idea of gods using force to impose their

authority is a common feature in less

sophisticated stages of religion

Authority

Law requires obedience but not just simple

obedience.

Not just willing or unwilling compliance

The notion of authority entails that some person is

entitled to require obedience of others regardless

A

A F

F

AF De jure A-F=Law+Order

De facto F-A=Law+Order

Rule of law A+F=Law +Order


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of whether the particular order of rule is acceptable

or not

It may be a collective organization, not a

person.

Peculiar authority or mystique surrounding

the person / institution

Inspires a feeling of legitimate subordination

What is the source of obligation which is apparently

imposed or assumed to be imposed on the subject

party?

Preliminary answer: moral obligation. There

is a connection between legitimate authority

and moral obligation. It imposes a rule which

calls for voluntary adherence by virtue of

inherent rightness. Moral duty to obey the law

because the law represents legitimate

authority.

Problem: Carrying the argument too

far may lead to erroneous belief that

legitimacy and morality can be

equated. E.g. divine right of kings

Rebellion: discrediting of leaders as

immoral; establishment of a social

contract

Max Webers ideal types

Not a historical evaluation of societies or a

Platonic ideal but a representation of full

development of possibilities in social

organizations

Typological / classificatory, rather than

developmental

Simplifications in which sociological

investigation can be conducted

Societies can have characteristics of one or

more of these ideal types

Forms of authority or legitimate

domination

Charismatic

Charisma Greek for grace

Personal ascendancy which

an individual may acquire in a

particular society which

confers an indisputable aura of

legitimacy over all his acts

Prototypes: Julius Caesar,

Alexander the Great,

Napoleon, Hitler, Stalin,

Mussolini

Traditional Domination

While charismatic leadership

lies on a single person, his

death does not necessarily

extinguish charisma


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Authority derived from the

personality of a leader may

pass on to an attenuated form

(e.g. descendants of a royal

line, from Jesus apostles to

the Catholic Church)

Institutionalization of practices,

continuity

Mass traditional customs that

are binding

Restricts the freedom of the

actual king in office

The king under the God and

Law (Bracton)

Legal Domination

A more developed form of

traditional domination

Misleading term in the sense

that it suggests that law only

arises in this type of authority

Charismatic leadership also

may have rules (e.g.

Justinians codification of

Roman Law)

Traditional domination have

rules, but they are customary

rather than legislative.

Legal domination, is different,

however, because it is

impersonal and legalistic.

Institutional character of

authority has displaced the

personal one.

Modern democratic state has

largely abandoned charismatic

leadership in favor of

government having a

monopoly of authority.

This belief in legitimacy is one

that the modern state requires

to exist. It is a circular

argument: laws are legitimate

when enacted, enactment is

legitimate if it conforms to

rules that prescribe

procedures to be followed.

Necessary legal argument / fiction in order to

assure a functional society.

Authority rests firmly in belief in its legitimacy.

Force

Societies may exist with no authority but ruled solely

by force without descending into anarchy.

However, the state of war of upheaval does not

persuade one to treat the law as force incarnate


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Coercion seems to be necessary and is personified

by important institutions and persons

Moral arguments against force

Force / violence is wrong in itself and a law

that ultimately rests on force offends morality

Force is the very negation of law and its use

indicates the breakdown of the rule of law

Problem:

Moralists only see moral law as the

only law

Lack of establishment that morality

excludes coercion

It must be proven that law has an

actual relationship with morality

Another argument against force stems from a

misunderstanding of the operation of law

Force is only incidental procedure, not

necessarily essential to the existence of the

law

Social contract as a necessary legal fiction

People obey because of consent, not

coercion

Replaced by universal suffrage where

individuals can adhere to the

operative system of government

Elimination of coercion as an element of law

and replacing it with voluntary consent /

acquiescence

Law can exist in its own right regardless if

force is used

Force in International Law

Force is a less pronounced practice in

international law

Laws are not enforceable by coercion

because there is a lack of regular

enforcement

Efforts for enforcement and coercion are

sometimes frowned upon on the international

scale (Suez, Belgian Congo, Nicaragua)

Legal Theorists and Force

Anti-coercionist position: Law can only be

described in terms of authority

A comprehensive conception of law must

recognize the interplay between authority and

force

Law is a highly flexible conception

Coercion is not an ideal type or an

oversimplification, however, categorizations

are needed for study

Ideal types are not seen in reality, but only

in a Utopia as a limiting concept.

There are infinite gradations of force, from

blood-feud to contempt of court

Legal Theory requires a dynamic rather than

a static approach to force in law.

Can We Dispense with Force?


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Human society would not have flourished if

not for a measure of organized coercion

Aristotle: Man is a rational, political animal

but he has aggressive drives which must be

repressed to attain social discipline.

Freud: Aggressive drives can be

suppressed but not totally eliminated. Living

among men requires a repression of base

instincts. Man cannot get rid of these drives

but it is unlikely. Instead, societies are built

on coercion and instinctual renunciation.

There is a connection between coercion and

civilized society

De Maistre: Civil society is founded on the

hangman

Rules about Force

Laws of developed states: close and efficient

regulation of force

Attempt to overshadow force with authority by a

return to charismatic leadership

The view that force only becomes incidental is a

fatal illusion

Modern society has a massive organized

force that has a monopoly in the use of

violence.

State apparatus must be so big and

undefeatable that others will not dare resist it.

Only certain individual persons and

institutions have such powers (e.g. the

President, police, military-industrial complex)

The use of force requires that certain procedures

and standards are met to safeguard the people.

Not all rules should have penal consequences,

considering the tendency of modern society towards

defining duties without corresponding sanctions.

CHAPTER 3: LAW AND MORALS

Relation between law and morals is far from simple

Law and Religion

Divine origin and sanctity of laws

Law, morality and religion were inevitably interrelated

Lawgivers are mythical, semi-divine or heroic

The divine origin of laws lent authority to them

Moral duty to obey the law

Human penalties still existed. If humans could not

punish the crime, the divine would.

Polytheism offered flexibility in administration of justice.

One god may punish, one god may stay punishment.

Monotheism introduced a stern, inflexible Divine Will

where squabbles of gods would not mitigate the full

force of law. The whole of the law did not necessarily

come from the divine. Distinctions were made between

fundamental, unchanging laws and man-made laws


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Aspect HEBREW GREEK

Form of religion Monotheistic Polytheistic

Language / mode of transmission

Prophetic writings. Prophets are those with extraordinary charisma and passion for divine will

Oracles, priests

Divine Law Imperative, obligatory and punitive Fate, mysticism did not affect human laws

Human Law May be decreed by kings and prophets anointed by God. In case of conflict with divine law, the latter shall

govern.

Man-made laws may not always be reasonable or valid. They must be subject to a higher law of

reason. Its validity is not subject to divine stipulation

What is law? Law is simply the moral / religious law set down by God through the prophets.

Law is a reasonable command needed for society to flourish.

Focus of the law Irrational and mystical, a matter of faith Rational order of the universe, ascertainable by rational investigation; human reason

Dangers Obscurity of language, persuasion, limitless interpretation leads to either rigid orthodoxy or

anarchy

----

Moral Duty to Obey the Law If a law is immoral, it does not have to be obeyed. God has the last word regarding law and justice.

Illustrated in the Apologia of Socrates in Platos Crito: law, even if contrary to reason, must be

obeyed.

Man agrees to the rules laid down by the state. If he should break them, he must face the punishment laid down in the law. Obedience to the law of the state is

the highest morality. Moral law does not override state law. Citizens, should however, move to amend

laws contrary to reason.

PHILOSOPHY OF LAW (1C

Relation of Law to Morals

o It appears that the Greeks are nearer to the

prevailing opinion the modern world. There are those

who argue that the duty to obey the state is of prime

importance.

o Hegel: the individual is treated as

higher reality of the state, whose superior wisdom

could hardly be expected to be open to the

persuasion of an individual citizen that it was in error,

or that its courts were unjust or immoral, since the

state itself represents the very embodiment of

morality

his philosophy has proved to be so influential

in relation to later totalitarian doctrines

o The limitations present in cases where morality was

in conflict with the provisions of positive law

the overriding moral duty might to be to

the law until persuasion is effective t

about legislative changes

there may still be extreme situations where

the law dictates acts of such patent

immorality

the moral duty is that of rejection,

rather, than obedience to the law


are nearer to the

prevailing opinion the modern world. There are those

who argue that the duty to obey the state is of prime

the individual is treated as submerged in the

, whose superior wisdom

could hardly be expected to be open to the

persuasion of an individual citizen that it was in error,

or that its courts were unjust or immoral, since the

state itself represents the very embodiment of

oved to be so influential

in relation to later totalitarian doctrines

The limitations present in cases where morality was

in conflict with the provisions of positive law

iding moral duty might to be to obey

the law until persuasion is effective to bring

there may still be extreme situations where

the law dictates acts of such patent

the moral duty is that of rejection,

rather, than obedience to the law

Intersection between law and morality is misleading

where there is common ground between the two, there is

kind of identity

o this is only two-dimensional portrayal

Law and morality reinforce and supplement each other

as part of the fabric of social life

o Moral codes, by recognizing that we ought generally

to refrain from such acts, supplement the force of law

which equally forbids them

o the moral duty to obey the law is generally accepted,

and plays an important role in establishing the

authority of the law and ensuring obedience to it

o similarity of normative language that each employs

both lays down that it is my duty to do this or do

that

dangerous in the sense that it connotes that

law must necessarily connote moral

obligation

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Intersection between law and morality is misleading -

where there is common ground between the two, there is

dimensional portrayal

Law and morality reinforce and supplement each other

as part of the fabric of social life

Moral codes, by recognizing that we ought generally

to refrain from such acts, supplement the force of law

which equally forbids them

the moral duty to obey the law is generally accepted,

and plays an important role in establishing the

authority of the law and ensuring obedience to it

ative language that each employs -

both lays down that it is my duty to do this or do

dangerous in the sense that it connotes that

law must necessarily connote moral


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Where Law and Morals Diverge

o Example : the law may condemn/punish sexual

immorality but there is a moral duty to save/preserve

life

o The law shrinks from pursuing what may

nevertheless be recognized as the authentic path of

morality

o Higher ethical attitude may not be sufficiently

embodied in popular sentiment to be productive of

legal action in conformity with it

only a small part of the population who have

the moral force to produce sufficient change

in popular sentiment

this brings the spread of more human moral

sentiments and standards

o Law deliberately prefers to abstain from supporting

the moral rule

machinery is too cumbersome

more social evil may be created than

prevented

John Stuart Mill: law should not intervene in

matters of private moral conduct more than

necessary to preserve public order and to

protect citizens against what is injurious and

offensive; there is a sphere of morality which

is best left to individual conscience

Criticism: criminal law depends for its

effectiveness on incorporating moral

standards and without its influence, enforcement

of such laws may get weaker

An Example from Modern Divorce Law

o Until 1969: grounds were based on matrimonial

offense (e.g. adultery, cruelty, desertion)

o Divorce Act of 1969 - sole ground was to be the

irretrievable breakdown of marriage

o It was difficult to set a test or standards to determine

whether the spouses should be allowed to divorce

it instructive to compare cases where a

decree has been granted applying a test

o One of the aims of legal process -> general

uniformity of result in cases of similar kind

applying various criteria to actual cases

coming before the courts

in the process, rational principles are

gradually developed which can be applied in

a multitude of differing situations without

sacrificing any substantial measure of justice

o Society is provided with a more subtle and

sophisticated means of bringing the law into

contact with the needs of current morality

The Ladies Directory Case

o The publisher of booklet giving information as to the

addresses, telephone numbers, and other particulars

of various prostitutes was held guilty of conspiring to

corrupt public morals


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o House of Lords : role of court as custodian of public

morals and its duty to preserve the moral welfare of

the state

it is up to the jury to ascertain the

requirement of public morals

Crime and Punishment

o if the law were to confine itself to a more limited

sociological objectives

eliminate moral judgments from criminal law

protect society and reform the prisoner

o Morality impinges upon law:

guilt is linked with the idea of moral

responsibility; morals reinforce the authority

of the law and duty to render obedience to its

decrees

responsibility in law - excluding the

possibility of guilt if there exists some

circumstances of excuse which causes us to

adjudge the accused not morally implicated in

the deed which constitutes the offence

mens rea - guilty mind; entails a

certain mental element

Circumstances which negative this

mental state may relieve the accused

of legal responsibility (exempting

circumstance)

punishment to be inflicted - by

eliminating moral responsibility, a

more rational form of sentencing

policy can operate

Compromise: retaining conception

of guilt and responsibility in relation

the actual commission of the offense,

but eliminating it from the

consideration of punishment

removes the burden of determining

the degree of punishment and its

possible psychological effects to the

convict

but would have to regard the

protection of the public - if his release

would involve serious peril to other

members of the public, the court is

required to detain him

release of the prisoner depends on

the level of danger he brings to the

public

if this would be effective, then criminal

law would be transmuted into an

inquiry into the facts of a particular

crime and the social, mental and other

aspects of the background of the

accused person, thus removing the

notion of responsibility


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Conflicts Between Positive Law and the Moral Law

o Three main attitudes which may be adopted towards the

possibility of such divergence between law and morals

Law and morals necessarily coincide either

because the moral law dictates the actual

content of human law

first alternative: moral law is valid and that

nothing which does not conform

to the moral law itself can be properly

regarded as effectively binding law

second alternative: morality really means

nothing more than obeying the law

(Hobbes)

man-made law and the moral law each

enjoys a realm of its own but moral law is a

higher law and thus provides a touchstone

for the validity of merely man-made law

autonomy of each of the spheres of law

and morality as exclusive, so that neither can

resolve questions of validity save in its own

sphere


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CHAPTER 4: NATURAL LAW AND NATURAL RIGHTS

Idea of two lawsone resting on human authority and the

other resting on natural or divine originhas a long history

and is still a prevalent belief

Meaning of Nature

o In early society and early forms of civilization, no

distinction was made between the natural world

and the world of human beings

o No distinction between natural physical laws and

decrees by gods and their representatives

Gods or supernatural spirits direct everything

in the universe

Nature as both inferior to and subject to the

latters control

Nature, at best, is how things or people may

normally be expected to be or behave

o Few people attained an approach to nature differing

to the abovementioned

Chinese did not arrive at the notion of fixed

physical laws of nature governing the

universe but rather, relied on the idea of

harmony

Chinese demonstrates that if the idea of the

will of gods as perpetual and capricious force

diminishes status of nature vis--vis the

supernatural

Chinese outlook places nature upon a

pedestal

New approach

o Emphasis on nature may be connected to Judeo-

Christian monotheism to combat capriciousness

of divine rule

o Nature as a fixed order and one which was entitled

to reverence since it was God-given

o God could thus be conceived as a divine lawgiver

Possibility of scientific approach to laws

as fixed principles governing the physical

world

No clear demarcation between unchangeable

order of nature laid down by God and pattern

of human conduct equally laid down to all

eternity

Early Greek Philosophers

o The scientific approach to nature also received a

vital contribution from the so-called pre-Socratic

philosophers

Main objective of pre-Socratic thinkers was to

explore the world of nature in order to find

some principle governing the universe

which would explain its structure or

functioning


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o Belief in rationalism, idea that the universe is

governed by intelligible laws grasped by the human

mind, arose

Mans nature is dictated by his instinct and

law curbs such instinct like mans sexual

urges

Plato and Aristotle

o Platos idealist philosophy

Justice as represented by the laws amount to

no more than a pale shadow of real justice

Justice as static and law and government as

rigid and inflexible

Plato has moved far from the position of his

master Socrates with his reverence for the

laws of the native land

o Aristotles naturalist philosophy

Aristotle gradually rejected the idealist

philosophy of Plato

Aristotle advocated for the development of

the realms of knowledge relying on

observation and experience

Nature as the capacity for the development

which is inherent in particular things

For Aristotle, justice may either be

conventional, or varying from state to state,

or natural, that is common to all mankind

o Platonic and Aristotelian treatment of natural law and

natural justice are of particular relevance up to the

present time

Plato: nature as an ideal expressing the

fundamental aspiration of man if his full

potentialities are attained

Nature as ideal standard

Law or justice as ideals

Aristotle: nature as the way man behaves by

reason of his psycho-physical make up

Nature as fact or what man actually is

Stoic Philosophy

o History of natural law owes a great deal to stoic

philosophy arising after Aristotle

o Stoicism stressed the universality of human nature

Emphasis on reason as the essential

character of humanity

Universal law of nature ascertainable by

reason provided standard for justice and

man-made laws

o Idea of a common law applicable to all mankind

clearly afforded some concrete shape to the rather

abstract Stoic conception of a universal law of nature

Christianity and Natural Law

o Judaic view of law was that it represents Gods will

on Earth


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Early Christians however, were taught to

despise things of this Earth and to expect

the destruction of this world for the

coming of Gods kingdom

Hence, while Earthly rulers had to be

obeyed, Earthly laws were mere civil

arrangements to address mans sinfulness

o At the same time, Christian writers recognized that

even in an imperfect world, there was a need for

justice as decreed by God

Justice as an inferior of that ultimate divine

justice

o Link between natural law and Christian theology

increased natural law authority compared to the

older Stoic law of nature

Natural law was now imposed by God

Idea that mere human law is subordinate to

natural law

Mechanism now exists for people like the

Pope to expound on natural law and require

kings and emperors to recognize such

Aquinas and Scholasticism

o St. Thomas, under influence of Aristotles position

that man achieves natural development in a

political society, rejected the notion that law and

government were rooted in sin and therefore

necessarily imperfect

o Dichotomy of divine law only known through

revelation and natural law known through rational

unaided human reason

o Scholastic philosophy was a highly rationalistic

one that relied heavily on truth as elicited by logic

and deductive reasoning

But at the same time, its premises were not

chosen on rational grounds but were given

by the beliefs of Christian theology

o Aquinas set the pattern of modern natural-law

thinking by construing natural law as not a system of

rules which covered the entirety of human affairs

There are cases of which the law provides

and there are some where it is needed to be

morally indifferent

o Human law was fully reinstated as entitled a major

role in human government by filling the gaps of

natural law and developing further the implications of

natural law in the intricacies of human relations

Aquinas did not address cases of conflict

between natural and human law but he

seemed to think that obedience was still

needed in order to avoid scandal

Renaissance and Secular Natural Law

o The Reformation, with its emphasis on national

Churches controlled by the state, led to a secular

revolution


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o New age may be regarded as the Golden Age of the

law of nature where emphasis was placed on the

rational character of natural law

Unique quality of man in reason and the

rational element is shared by all mankind

International law should govern international

relations under this perspective

o Human law should give effect to natural law and

incase of conflict natural law shall prevail

Natural Law and Natural Rights

o After the Renaissance, the notion that man

possessed certain fundamental rights in a state of

nature gained currency

These rights were translated into civil rights

in a civil society

Locke: social contract gave power of rulers

and government rooting from the confidence

given to them by the people, granted that

rights of the people are upheld

o In the past, natural law was conceived as imposing

duties and prohibitions but now it was a source of

fundamental democratic rights

Constitutions of democratic countries brought

actual machinery of the recognition of

rights in law as legal rights

Rousseau: general will as natural law and

sole unfettered legal authority but these

enabled recalcitrant leaders to seize power

claiming he represented the general will

Modern Approaches to Natural Law

o Theories of natural law: Catholic, philosophical,

and sociological

Catholic - neo-Thomism

Philosophical - neo-Kantianism (we should

always act to the norm of conduct so that our

acts shall be translated into universal law)

Sociological - factual approach; attempt to

apply scientific method to elicit data of mans

fundamental drives and urges

Post-war Revival of Natural Law

o Nazi rule and International Tribunal at Nuremberg

revived the call for a higher law than national laws

which a natural law approach may address

It is in this century of anti-rational ideologies

such as Nazism and Fascism, that rational

faith in natural law re-assert itself

Relevance of Natural Law to the Modern World

o Incorporation of Bill of Rights in Constitutions

o Suspension of a judicial decision if it is contrary to

natural justice

o Recognition of a higher system of justice to avoid

conflict in international relations

o Natural law to aid in cases of legal predicaments

like Nazism, apartheid etc.


20

CHAPTER 5: LEGAL POSITIVISM

Physical and Normative Laws

o Positivist approach may be traced to the

Renaissance with its emphasis on the secular

studies of science and humanism

Empiricism associated with observation as

a means of ascertaining the laws of science

influenced every field

Clear demarcation between laws of physical

nature and normative laws of human conduct

Before, theological background of natural law

interpreted both physical and moral laws as

traceable to Gods will, effectively blurring

their distinction

Is and Ought

o Hume pointed out that there are really two realms of

human inquiry:

Field of facts - what is actually the case

Field of ought - what ought to be the case;

normative

o Humes discussion was principally concerned to

distinguish between fact and moral obligation

o What the law does is to lay down norms of

conduct for citizens and to indicate what sanction

should or ought to follow

Different from moral norms since law calls for

a certain measure of regularity and

observance

Moral rules on the other hand, shall be valid

even if it is hardly observed like the rule that

we should love out neighbors as ourselves

o Hume, who rejected natural law, made various

suggestions as to the way in which human passions

come to create moral norms

The Utilitarians

o Behavior of mankind was dominated by the influence

of pain and pleasure

o Utility as what served to increase human

happiness

o Benthams principle was aimed at maximizing

human happiness according to the slogan, the

greatest happiness of the greatest number

o Bentham rejected natural law which was for him

nonsense upon stilts

His arguments in favor of utility were based

on the fact that human reason could find no

rational justification for preferring one course

to another

Ironically, Benthams principle that one mans

happiness was equal to another mans owed

to the widely established natural right of

equality


21

Move to Legal Positivism

o Utilitarianism provided the climate for the move to

legal positivism through:

Firm distinction between law as it is and as it

ought to be

Tendency to treat law as a science

deserving to be ranked with the other

sciences both in its aims and its methods

Law as it is and as it is ought to be

o Bentham linked his discussion of morals in terms of

utility with the firm conviction that law could only be

properly understood if it was treated as an

autonomous field free from morals, religion, etc.

Natural law as mythical and muddled thinking

by confusing legal with moral issues

o For Bentham, the question of goodness and badness

of a law was to be adjudged by his great principle of

utility. Law reform operates under this principle.

o Legal duty does not cease to be a legal duty

because the citizens are persuaded of the moral

immorality of the duty

Whether he chooses to comply or obey is a

question for his own conscience

Legal positivist will see apartheid as formally

valid but condemn on moral grounds

o Positivist attack natural law idea as it creates a

prescribed inherent quality to laws which form a

barrier to law reform

The Judge and His Conscience

o The legal positivist would submit that the judges

legal duty to apply the law to its letter and spirit is

clear

If he was persuaded of its moral

unconsciousness, then his moral duty is

conflicted with his legal duty and he should

then presumably resign

As in the example of an anti-Nazi judge in

Germany or anti-Apartheid judge in Africa, a

man may, in fulfilling his legal duty, knowingly

be acting contrary to the dictates of morality

Law as a Science

o Word positivism was devised by French

philosopher Comte to designate his own particular

philosophic system

Belief that adequate knowledge could be

attained only by employing the scientific

method or investigating reality by

observation and subjecting its theories to

empirical investigation

o Comte argued that there were three steps in the

development of mans approach to the world

Religion


22

Metaphysical

Positivist

o Unfortunately, at the end of his life, Comte

abandoned his work

o Scientific spirit also infiltrated arts and literature

Austins Science of Positive Law

o Austin was mainly impressed by the fact that law

operated through a system of conceptual thought

Austins aim was to examine such conceptual

system, its structure and fundamental notions

o Austin had many followers who continued his purely

conceptual attitude toward legal theory

The Conceptual Approach

o Criticisms:

Treatment of legal concepts as possessing

an inherent structure regard developments

of law that do not adhere to such

structure as illegitimate

Treatment of the conceptual approach that

legal problems can be solved by means of

logical analysis disregard role that policy

plays in arriving legal decision

Conceptual approach focused on second-

order facts such as rules of law, cases, and

law books which disregard first-order or

primary facts consisting of behavior of

legal officials, judges, and others in

relation to legal rules

o The scientific jurist cannot ignore the fact that there

is built into the law seeds of its own development

on the lines of some value system

Where Positivism stands Today

o Usually associated with disbelief in the possibility

of finding an absolute standard or norm outside of

the legal system itself

o Attack on positivism launched today in two ways:

Legal positivism by its refusal to

acknowledge an absolute higher morality

controlling legal validity, has made it possible

for totalitarian dictators to bend laws

Absolute moral values do exist and can be

demonstrated to exist by various means

o On the whole, the positivist shares a rationalist

approach to the moral values of his society rooted

in European ethical thought

o The positivist prefers to concentrate on studying

the values that are inherent in our present stage

of civilization rather than postulate absolute values

Consequently, the lawyer needs to

understand the value system of his

society in order to wrestle the problems

which arise in the legal system


23

CHAPTER 6: LAW AND JUSTICE

Idea of law has always been associated with the idea of

justice

o Law without justice is a mockery, a contradiction

o Values embodied in laws of a community, strive

towards justice

What is Justice?

o Justice in itself is a moral value that man aims

towards in order to attain the good life

What is ultimately good is a matter of choice

Platonic Justice

o Man is a reflection of the pattern of the just society

Man acts according to his idea of a just

society

o Justice means conforming to ones proper sphere

Platos system is based on the fallacy that

each man fits a specific job or function

based on his natural aptitude

Formal Justice and Equality

o Modern legal and moral philosophy treats equality as

the vital function of justice

Law applied without discrimination may be

regarded as embodiment of justice

However, justice cannot mean that we are to

treat everyone alike regardless of inherent

differences

o Formal Justice: equal treatment in accordance with

classifications laid down by rules

Formal justice is lacking in that it does not tell

us about how people should or should not be

classified

o Formal justice involves three related conceptions:

Rules on treatment of people in given cases

Generality of rules

Impartial application of rules

Substantial Justice

o To achieve substantial justice, formal requirements

of justice need to be supplemented in two ways:

Concrete Justice: criteria to establish

whether rules are themselves just; possibly

through a scale of values in cases the gravity

of two values are debated upon

Equity: quality of fairness; possibly through

giving discretionary power to judges to decide

individual cases under the spirit of equity as

applied in deciding penalties in criminal law

Legal Justice

o Justice is a much wider conception than law and

may apply wherever there is a code of rules, legal or

non-legal

o Law and legal system corresponds to all three

precepts of formal justice namely, rules, their

generality, impartiality


24

o A certain measure of coherence and regularity is a

vital feature of any legal system but no exact

standard can be laid by which this measure is to be

judged

Legal Injustice

o 3 distinct types of cases which injustice in relation to

law may arise:

Case decided contrary to what the law lays

down

Case is unduly administered contrary to

impartiality

Case is judged according to formal justice

but against substantial justice

o In the abovementioned cases, an unjust law is a

perfectly intelligible conception which conflicts with

the scale of values which we choose to judge it

o Formal justice, like law itself, may fail to result in

substantial justice

Law and Substantial Justice

o It is not enough for a system of law to comply with

formal attributes as it also needs just content

o Two ways in which a legal system may attain not just

formal but substantial justice:

Flexibility in rules- to allow law to adapt to

needs of the society

More specific guidelines- will work well in a

country with a long tradition and fairly

homogenous population i.e. Art. II of the

Constitution


25

CHAPTER 7: LAW AND FREEDOM Introduction

Law as paradox: means of directing and imposing

restraints upon human activities

Rousseau: Man is born free; yet everywhere he is

in chains

The savage man lives a life of primitive

freedom and simplicity, but

In practice as Rousseau realized man is

never isolated and free in this sense but

always part of a community, and the degree

of freedom he enjoys or the extent of the

social restraints imposed upon him will

depend upon the social organization of which

he is a member.

Restraint is not necessarily an encroachment upon

liberty.

Ancient times: inequality, rather than equality, was

regarded as the fundamental law of human society.

Freedom was a guarantee of security in the station

of life in which Providence had placed him

Modern times: freedom has assumed a central

position and a more positive function in the scale of

values set up as the operative ideals of a genuine

social democracy on the Western pattern.

Open and Closed Societies

Open society wide field left for personal decision

and for assuming of individual responsibility, e.g.

Western democratic society

Closed society Almost tribal or collectivist pattern

where the community is completely dominant and

the individual counts for little or nothing, e.g.

Totalitarian society such as that of the Soviet Union

or the former Nazi Germany

Note: there are developments even in Western

society in the direction of a more collectivist society

increasing role of the state in matters

concerning social welfare

increasing conformity in patterns of social

behavior and discouraging what are regarded

as individualist aberrations

Marxist argument: without control of wealth and the

pattern of its distribution, the genuine scope of

equality and individual initiative remains extremely

limited.

Positive and Negative Freedom

Positive freedom spiritual conception, implying

some kind of maximum opportunity for the self-

realization of every individual to his full capacity as a

human being.

Negative freedom concerned with organizing the

pattern of society, that despite the restraints and

limitations that are placed upon individual action for


26

the benefit of the society as a whole, there remains a

large sphere for individual choice and initiative as is

compatible with the public welfare.

As far as legal freedom is concerned, the emphasis

is on guaranteeing the maximum degree of

negative freedom. Attempts have been made in

modern society to try to give effect to those values

which are regarded as enshrining freedoms which

modern man has come to accept as an

indispensable feature of the good life.

Basic Human Rights

Distinctively natural-law origin

2 outstanding contributions of the constitution

makers of the United States and the early judicial

interpreter of the constitution:

The idea of expressing in the written

constitution what were accepted as the

fundamental legal human rights of the

citizens

Marshall doctrine: it was for the courts

(ultimately the Supreme Court) to

determine the scope of these

constitutional provisions. He laid down

that the court was bound to treat these rights

as overriding in the sense that any

legislation or legal rulings or decisions which

disregarded them were to be treated as

invalid.

Attempts in more recent times to express in a supra-

national form the basic human rights which are

regarded as the legal entitlement of all human

beings:

Universal Declaration of Human Rights of

1948

European Convention of Human Rights

Declaration on the Rule of Law sponsored by

the International Commission of Jurists in

1959

The Main Values Expressed in Legal Freedom

Expanding / Contracting Rights

1. Equality and Democracy (E)

recognition of equality before the law

principle of non-discrimination in regard to

such matters as colour, race or creed

2 important lessons from the point of view of

the relationship of law to society:

i. rules of law which are note expressive

of the mores or standards of conduct

which prevail in a given community

are likely to remain dead letters

through passive or even active

resistance of the citizens.


27

ii. if law is to be an effective focus for

giving expression to fundamental

values, it cannot merely reflect the

common level of morality; it must be

regarded as a positive directing force,

which can be used as an instrument

of social progress, i.e. an

enlightened minority leading the

recalcitrant majority.

2. Freedom of Contract (C)

Laissez faire, where one had the right to

make his own contractual arrangements, led

to startling abuses by corporations.

The counter move in favour of state control

started with the legislation against

monopolies and restrictive trade practices.

The rise of trade unions in recent times

transformed the character of industrial

relations, e.g. equality of bargaining power.

The widespread growth of standard-form

contracts has further exposed the unreality of

freedom to contract.

3. The Right of Property (C)

Power of the state to tax seemed to involve

an encroachment upon the right to property

Reconciliation was found in the principle that

taxation was permissible provided that

there was consent, i.e. taxation was

authorized by a duly elected representative

legislature

At the present day, the level of taxation is at a

height which in previous ages would have

been regarded as confiscatory.

Inroads that have been made on the right to

property:

i. Nationalization of whole industries

ii. Control on the uses that land and

buildings may be put to

iii. Powers of compulsory acquisition

enabling authorities to acquire land

from private owners

iv. In Soviet Russia, protection of private

property is only to articles of personal

use (not the means of production or

land)

4. The Right of Association (C)

Right of various types of groups: social,

political, economic, or any kind to organize

themselves and conduct their affairs

This extends to the right of business

enterprise to organize itself and how far it

may be legitimately restrained in order to

protect the public against monopolies,

restrictive practices, or fraud.


28

Right of labour to organize itself in trade

unions to deal on a collective basis with

employers.

Right of people to hold public meetings, for

the purpose of making protests or attempting

to influence public opinion and so forth.

The state has a right to preserve public

order and this may frequently clash with the

right of holding protest meetings, e.g. in

England, owing to the outbursts of Fascism in

the 1930s, it was found necessary to pass

the Public Order Act of 1936, preventing the

wearing of unofficial uniforms in public places

and imposing restraint on the use of abusive

language at public gatherings.

5. Freedom of Labour (C)

This right in modern times has mainly

developed in relation to the trade union

organization of labour.

Legal restraints on the freedom of labour:

i. Englands Industrial Relations Act of

1971 (established the National

Industrial Relations Court)

ii. Trade Union and Labour Relations

Act of 1974 (repealed the Industrial

Relations Act)

iii. Compulsory or semi-compulsory

arbitral procedure of a judicial or

quasi-judicial character in US,

Australia, etc.

What is really at stake is the ability of a group

of workers to hold to ransom not only a whole

industry but even the whole economic life of

the country.

6. Freedom from Want and Social Security (E)

The need to protect everyone, not merely

against grinding poverty, but also in the

enjoyment of a reasonable standard of life

whether in or out of employment.

Need to spread the risks of misfortune

among the community as a whole, rather

than allowing them simply to affect the

particular victim of misfortune (as opposed to

the Victorian philosophy of self-help).

7. Freedom of Speech and of the Press (C)

Fundamental value in any community

where democratic and egalitarian values

prevail, for without these, the possibility of

developing and crystallizing public opinion,

and allowing it to be brought to bear upon the

governmental organs of the state, is bound to

be ineffective.


29

Freedom of speech can hardly be

absolutely unrestricted e.g. a law of

defamation, sedition, obscenity

Freedom of speech and of the Press usually

implies an absence of initial censorship,

subject to any possible legal action thereafter

ensuing

A substitute is found in self-censorship

i. Difficulty: ultimate limits of tolerance

which may be required by the

established value of freedom of

speech

Greatest significance of censorship at the

present day is positive.

i. Against the danger of various organs

of public opinion to fall increasingly

into a very few hands by reason of

newspaper mergers and take-overs

The Press clearly retains a central position in

mass media because of its unique capacity

for serving as a focus of public opinion.

What seems to be unproved is that there is

any necessarily overriding public interest

which entitles journalists to complete

immunity as to revealing their sources of

information, although no such immunity is

enjoyed by anyone else.

8. Freedom of Religion (C)

The exact implications of this doctrine may

appear in a very different light in different

communities. Under the US Constitution, no

established religion is permitted, whereas in

England and established religion is an

essential part of the constitution.

The main aspects of freedom of religion

which are apt to arise nowadays are:

i. Discrimination against religious

groups

ii. Religious schools

iii. Specific teachings of religious faith

(e.g. Mormons encourage polygamy,

Christian Scientists may refuse

medical aid)

The law generally declines to regard

religious groups as being entitled to any

special degree of immunity from legal

regulations

9. Personal Freedom (C)

Although personal freedom may easily be

ranked as supreme among the freedoms of a

democratic society, it is not easy to find

specific applications which do not more

readily fall under other headings of freedom,

e.g.


30

i. Need for due process of law form

essential elements of the rule of law

ii. Freedom to take up any employment

is linked with the freedom of labour

iii. Choice of residence has to do with

economic resources, though the state

can do much to provide suitable

homes

iv. Restrictions on the freedom to travel

also raises issues on personal

freedom, e.g. passport requirement,

extradition

10. The Rule of Law (E)

The Rule of Law is herein referred to in its

narrower sense, as imposing those

procedural guarantees which have been

found necessary to ensure what in American

constitutional practice is known as due

process of law

This involves:

i. Independence of the judiciary

ii. Speedy and fair trial and adequate

judicial control over police and

methods of securing confessions

iii. Adequate safeguards regarding arrest

and detention pending trial

iv. Adequate legal aid for those with

insufficient financial resources to

obtain suitable legal defence

v. Accused being entitled to refuse to

make statements that may incriminate

himself

vi. Those charged with duty of advocacy

must be free and independent, not

subject to any state pressure

vii. No retroactive legislation

viii. A person is only answerable for his

own wrongdoings and not to be

punished simply because he is in

some way connected or related to the

guilty person (referring to criminal

liability, not civil liability for acts of his

servant or agent)

The scope of the modern rule of law is not

limited to cases of safeguarding accuse

persons, but also has a wide and important

sphere of operation in regard to the

exercise of state and governmental powers,

i.e. rules of administrative law which enable

either the ordinary courts of law or some

special tribunals to exercise supervision over

administrative or quasi-judicial functions of

the executive. These provide the system to


31

handle complaints against the state or its

organs for abusive, improper, or negligent

actions, e.g.:

i. Common-law systems rely on general

supervisory jurisdiction by the

ordinary courts

ii. Continental countries favor

independent administrative courts or

tribunals, such as the Scandinavian

Ombudsman

iii. The French system is based on the

Conseil dEtat

The Problem of Conflicting Values

There are many ways in which conflicts may arise

between the various types of fundamental rights

accepted in the modern democratic state

How personal freedom would have to yield to

considerations of public security was made by

American Judge Justice Holmes: there must be a

clear and present danger to public security.

Preferred freedoms, i.e. certain freedoms

guaranteed by the Constitution are to be regarded as

more fundamental than others and therefore should

prevail against the less basic freedoms.

Human Rights and Their International Protection

The reluctance of individual states to take adequate

measures to protect individual rights either of citizens

or of aliens in their midst has led to attempts to

establish supra-national authority which can take

steps to protect individuals against denials of justice.

Customary international law can hardly provide

assistance, e.g. only states are recognized under

that system of law, not private individuals.

Two requisites:

Clearly laid down code of established

human rights accepted by all civilized states

System of judicial machinery where issues

involving alleged infringement of these rights

can be investigated and determined

Attempts to establish supra-national authority:

Universal Declaration of Human Rights

adopted by the General Assembly of the

United Nations in 1948 no machinery

Convention for the Protection of Human

Rights and Fundamental Freedoms, signed

by the Council of Europe in 1950 only

discretionary competence

The primary concern of the European

Economic Community was expressed in the

Treaty of Rome

1 c philo midterms reviewer

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