Natural Law Theory
What did Hume argue we cannot prove about our experiences and the real world?
"the Humean conception of reason" - reason cannot tell us what we ought to pursue, but only how to attain ends we have already chosen. The Humean conception of reason holds that every reason for action is related to a desire that the actor has. Reason can only tell us how best to attain the object of our desires. Reason cannot tell us that we ought to desire this or that: from the point of view of reason, one desire is as good as another.
Legal Positivism vs Dworkin vs morality etc
Legal positivism vests the judge with a strong discretion to fill 'gaps' in the common law. Hart's version postulates a 'rule of recognition', compliance with which is a prerequisite for rules to be valid members of the legal system. Judges are bound to apply only those rules that satisfy the criteria of validity specified in the rule of recognition. Many rules, however, have what Hart calls an 'open texture' and judges are therefore inevitably presented with hard cases in which they do not merely discover the law, they actually make it. Since the law does not, by definition, provide the answer in such cases, judges draw on moral principles in order to reach a decision. For Dworkin, as we shall see, a rule of recognition that serves to segregate law and morals is not possible. a legal system is a kind of moral system. Law consists, in addition to rules, of 'non-legal standards' like principles and policies, not because they are endorsed by any rule of recognition, but because it is part of the process of 'constructive interpretation' by which he pursues the best possible interpretation of what the law is. A judge, according to Dworkin, that disagrees with a law believing it does not adhere to the community morality has three choices: first, he may give a decision based on moral (rather than legal grounds; secondly, he may lie and declare the law to be what he would prefer it to be; or thirdly, he may resign. though Dworkin's theory of adjudication offers a more plausible account than Hart's, it stumbles into awkward straits when applied to unjust legal systems. this is not surprising since it is founded on the opposite: the concept of 'constructive interpretation' is to be understood as an explanation for the process, or ideal, of 'law as integrity' righteous j, apartheid laws are iniquitous (grossly unfair and morally wrong)
when were natural rights used to justify liberty and happiness?
The American Declaration of Independence / The French Declaration - also speaks of certain 'natural rights' of mankind.
What does Finnis say about justice?
in addition to problems of "distributive" justice, there will be problems of justice in the dealings between specific persons, e.g. the justice of keeping promises, or of compensating for injuries. these are often called questions of "corrective justice", but Finnis prefers the wider term used by Aquinas: "commutative justice". Because Finnis sees the requirements of justice as simply a matter of fostering the common good, his account of justice is a flexible and pluralistic one. commutative justice - how wrongs are rectified distributive justice - how burdens are distributed
Deryk Beyleveld and Roger Brownsword: keeping anarchy at bay?
"The concept of the law is the concept of morally legitimate power" - coercion and efforts must go together to generate law. Law is an exercise in practical reason Practical reason is necessarily moral reason Moral reason is based on a specific moral principle: the principle of general consistency Freedom from the coercive thoughts of others - the law is a system to protect and reconcile the rights to this freedom. It has legitimacy and authority over us - with a moral necessity to protect each other's rights. Where the law is simply wrong it is invalid - where it does not secure rights and wellbeing and the basic conditions of human agency, it is invalid - this is a very strong natural law theory. An immoral law is invalid and in no sense law but there may be a collateral moral obligation to obey it (Finnis)
Immanuel Kant
All humans have an equal innate right to be independent of the unilateral will of others. Coercion is unavoidable in the state of nature. There is therefore a moral obligation to enter a 'civil condition' under law. In a civil condition all wills are coordinated into a single omnilateral will. This civil condition has a constitution with powers (legislative, judicial and executive) to determine and enforce the omnilateral will. The civil condition is the government or sovereign? The constitution is a democratic one to enable the omnilateral will. We have a system of omnilateral will - and the right to be free from the coercion of others, this survives in the civil condition. Once the system generates omnilateral will, the only moral obligation you have is to obey it (this has a Hobbsian element) Though Kant's reading is more like: innate right survives as a presumption of freedom under law. You have a fundamental duty to believe what is true about the world, you owe a duty to yourself which is not legally binding. There is no right to resist a law you consider unjust, unless it requires you to violate a duty you owe to yourself.
In general, what are the key differences between LP and NLT?
At the most general level, legal positivists contend that there is no necessary connection between law and morality. Natural lawyers, of course, reject this view. Most positivist accounts of law tend to be descriptive and analytical, while natural lawyers are concerned, in the main, with evaluating society and law. This leads to different views concerning the relationship between practical reason and the moral point of view as an aspect of practical reason.
Hugo Grotius (1583-1645)
De Iure Belli ac Pacem: 'esti daremus' and the de-theologising of law Grotius regards law as the set of principles defining individual rights. such rights are not derived from some notion of the common good, but are in effect domains of self-ownership, within which one may order one's own actions. separation of what justice and law is from the law of the gods. Even if we say there is no god, his theory of law would still stand. legal theory begins to detach from theology and divine reason.
What is Natural Law Theory?
Its principal claim is that what naturally is, ought to b. - it is the intersection between law and morals. goes back to Ancient Greece, they believed in natural order and didn't link it to religion but said it was something that was natural.
Natural Law Theory - clarifying the differences?
Mark Murphy Natural law theory is any theory that explains that when the law tells you to do something, you really ought to do it, not just legally. Explains why legal obligations are REAL obligations - we really have them. Murphy says this theory is implausible - it is implausible to suppose that just because the law tells us to do it we really have to do it. Natural law theory is the thesis that law provides us with decisive reasons for action. At first sight it is deeply implausible. There are unjust laws.
What did Bentham say about natural law?
amongst other things, natural law is 'a mere work of the fancy'
How does Fuller define law?
he says that law is "the enterprise of subjecting human conduct to the governance of rules". the purpose of which is to achieve justice or the common good he also defines himself as having a procedural natural law theory idea.
The clash between legal positivism and natural law theory?
the legal positivist's quest for a value-free account of law is countered by the natural lawyer's claim that it neglects the very essence of law - its morality - that 'the act of positing law ... can and should be guided by "moral" principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention or mere "decision" ' Legal Positivism: law is a distinctive and complex form of social fact (ie made up of facts about human acts, words and state of mind). Philosophical puzzles, and moral critique, can be bracketed off from the definition of law. A theory of law does not tell us what is good about law or why we should obey it. Natural Law Theory: law is a social institution directed towards offering us decisive reasons for action. a theory of law must also explain what is good about law and why we should obey it. the philosophical puzzles have to be resolved if law is to be defined adequately. *Have to think about whether law just exists, or whether it is an expression of reason?
How does Rousseau distinguish between the general will and the collection of individual wills?
"there is often a great deal of difference between the will of all and the general will. the latter only looks to the common interest; the former considers private interest and is only a sum of private wills. but take away from these same wills the pluses and minuses that cancel each other out, and the remaining sum of the differences is the general will." - as long as government represents the general will, it may do almost anything (despite Rousseau's commitment to participatory democracy) does this sound a little like Rawl's "original position"? he essential is a paradox - a democrat and a totalitarian.
Robert Alexy and the institutional consequences of the weak NLT
'X is a sovereign, federal and unjust republic' 'You are sentenced to life imprisonment, and that is wrong' 'The law is a system of norms that (1) lay claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that are issued in accordance with this constitution, norms that manifest a minimum social efficacy and that are not themselves unjust in the extreme, and finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is an/or must be based in order to satisfy the claim to correctness'. The claim that what one is doing is right, you imply what you are doing is justified. NB - because of law's 'dual nature' as fact and norm, it is possible to take a purely descriptive 'external' perspective. In that sociological sense, Nazi law was law. However, 'insiders' do better to take law's claim to correctness seriously. this is a pragmatic argument with institutional consequences.
Semantic questions?
'lex iniusta non est lex' - an unjust law is not law - normally attributed to Aquinas and adopted by Lon Fuller. Dworkin calls it an expression of a 'sceptical interpretive judgement that Nazi law lacked features crucial to flourishing legal systems whose rules and procedures do justify coercion' Exclusive positivists such as Joseph Raz would, of course, claim that there are no grounds for holding that law and morality are necessarily connected; even inclusivist legal positivists like Jules Coleman concede only that the substantive morality of a norm may be a precondition of its legality only if it is specified in the rule of recognition.
what is a claim is associated with Aquinas but Finnis says is misconstrued?
'lex iniusta non est lex' - an unjust law is not law. it appears that Aquinas never made this contention, but merely quoted St Augustine - Plato, Cicero and Aristotle expressed similar sentiments, yet it is a proposition that is most commonly associated with Aquinas. What he said: laws which conflict with the requirements of natural law lose their power to bind morally. an unjust law forfeits its right to be obeyed as it lacks moral authority.
What were the six main factors for the revival of natural law theory?
1) post-war recognition of human rights and their expressions in declarations such as the Charter of the United Nations, the Universal Declaration of Human Rights. [a common standard of achievement - a higher law] - constitutional review for violation of individual rights (US - Brown v Board of Education; European Convention on Human Rights; German Basic Law 1948. 2) impact of the Nuremberg trials which established the principle that certain acts constituted 'crimes against humanity' regardless of the fact they did not offend against specific provisions of the positive law. 3) The neo_kantianism of Rudolf Stammler and Del Vecchio - Stammler developed the idea of natural law 'with a variable content'. Del Vecchio's theory approximated to classical law theory. Gustav Radbruch was, until the horrors of the Nazi Regime, a legal positivist. In 1947 he condemned legal positivism for its failure to prevent the evils of Nazism and advanced the contention that "the idea of law can be nothing but the achievement of justice ... [which] like virtue, truth and beauty is an absolute value" 4) the neo-Thomism now best known to English-speaking lawyers in the works of John Finnis. 5) the development of constitutional safeguards for human or civil rights in various jurisdictions (the American Bill of Rights) 6) the natural law theory of Lon Fuller, and Hart's 'minimum content of natural law'.
In two steps, how does Fuller show the necessary connection between law and morals?
1. in the first step he needs to demonstrate that the concept of law is best understood as structured by the archetype of full compliance with the eight requirements. 2. in the second step he needs to show that full compliance with the eight requirements is a moral ideal. if he can succeed in making both steps, he has shown that there is a necessary conceptual connection between law and morals, for instances count as law only in virtue of their approximation to a moral idea. Or, to express the point a different way, we might say that the concept of "law" involves an "inner morality".
Thomas Aquinas
13th century - two different legal systems and secular authority of the pope - he accepted that they were two different things. there were certain fundamental rules of reason that we should live by according to god, we should live by, but these were different to the secular standard of rules. "Law is a rational ordering of things which concern the common good, promulgated by whoever is charged with the care of the community" Aquinas believed that law is a significant phenomenon that stretches from the whole world - there is a hierarchy which begins with the lex aeterna: four categories of law: lex aeterna: perfect plan of God, existing in divine reason God acts in nature (general revelation) and by grace (special revelation) has a rational and law like mind lex divina: lex aeterna as revealed in Scripture theological virtues (faith, hope and love) are a work of grace in the believer grace is in harmony with nature, but transcends and transforms it lex naturalis: participation of all rational beings in the divine reason, discoverable by reason general and specific principles good is to be done and evil avoided good and evil are ordered to a human nature capable of fulfilment moral virtues: prudence/wisdom, justice, courage and temperance/moderation lex humana: positive law, created to render general principles specific 'conclusio' and 'determinatio' - directly applying the natural law - application of natural right that people should pay (conclusio) whereas determinatio adds figure to the wrong on top of the natural law - this is how human law is created, there is detail (determinatio) need for human authorities to decide determinatio unjust law as a 'corruption' of law
The moral reading of Natural Law Tradition?
All that NLT is interested in is defining the circumstances under which there is a moral obligation to obey the law. This reading is (i) compatible with positivism; (ii) 'excruciatingly boring' and (iii) wrong. It is, however, a common view. The strong reading of the Natural Law Tradition? Any rule/command/norm etc. which does not provide us with decisive reasons for action is not a law. In Alexy's terms, the relationship between law and justice is classifying = lex iniusta non est lex c.f. 'a glass diamond is not a diamond' *The moment law and morality come apart, it is no longer law... The weak reading of the Natural Law Tradition? Any rule/command/norm etc. which does not provide us with decisive reasons for action is defective as law. In Alexy's terms, the relationship between law and justice is qualifying c.f. a bright-coloured duck may be defective (if you don't like bright-coloured animals) but is not defective as a duck; a duck which cannot fly is defective as a duck. this requires an account of what a duck in good condition is.
Criticisms of Finnis' answer?
Finnis's model of the family is idealized, his politics are too conservative, and his basic goods too restrictive. - adding marriage between man and women to procreate in 2011?? - doesn't the common good require the right to work?? Finnis has conceded in later writings, that his third basic good should have been: skilful performance in work or play. But do not lose sight of his general project. HIS PURPOSE - to answer 'what is truly good for human purpose?'
Plato
For Plato, the fundamentals of ethics lay in absolute values that things could emulate. things can be expressed like beauty, something natural and inherent that was written into nature ourselves. Justice has an inherent connection to law: only laws that pursue the ideal of justice can be considered right. According to Plato, justice is a universal value that transcends local customs or conventions.
What does Hart say about Fuller's theory?
In Hart's view, Fuller had no real justification for calling the eight desiderata an "inner morality of law". there is nothing really moral about them in Hart's view. Hart says that judges and lawyers are, most of the time, concerned to invoke and apply rules that stem from this basic rule of recognition. In some cases, their arguments take on a more open-ended character, perhaps invoking moral and political conceptions that cannot plausibly be analysed as the application of a basic rule: Hart explains such situations by saying that they concern "penumbral" cases, not regulated by the rule of recognition, or the rules that flow from it.
Is Dworkin's community morality idea flawed?
In a situation like apartheid South Africa, Dworkin's 'community morality' can only have meant the morality of the dominant political group - ie the white minority - those who exercise political and legal control - the major element of the society's injustice.
What did Fuller say and oppose of Hart's theory?
Law and morality are necessarily connected. Fuller adopted a procedural natural law approach. The eight ways to make law are, in Fuller's theory, reflected in his eight 'desiderata': 'eight kinds of legal excellence toward which a system of rules may strive' embodied in the 'inner morality of law'. It epitomizes what he calls 'a morality of aspiration and not of duty. Its primary appeal must be a sense of trusteeship and to the pride of the craftsman'. Were post-war German courts correct to say that some Nazi law was not law? 1949 prosecution of a German wife for instance. Convicted on the ground that the statute under which the husband had been punished offended the 'sound conscience and sense of justice of all decent human beings'. Hart argued that the decision of the court, and similar cases, was wrong, as the Nazi law of 1934, was a valid law since it fulfilled the requirements of the 'rule of recognition'. Fuller, on the other hand, contended that, since Nazi 'law' deviated so far from morality, it failed to qualify as law, and therefore supported the courts decision. Fuller says that unlike what Hart believes, judges and lawyers are not applying a basic rule of recognition: they are guided by a fundamental aspiration that is internal to the practices in which they are engaged. the aspiration is that of complete compliance with the eight principles.
What did Locke reject about Hobbes?
Locke, though strongly influenced by Hobbes, rejected his view that the original state of nature was 'nasty, brutish, and short', and that individuals through a social contract surrendered - for their self-preservation - their rights to a supreme sovereign who was the source of all morality and law. the social contract, according to Locke, preserved the natural rights to life, liberty and property, and the enjoyment of private rights: the pursuit of happiness engendered, in civil society, the common good. Whereas for Hobbes natural rights are logically prior and natural law is derived from them, Locke derives natural rights from natural law - that is, from reason.
What would a positivist criticise about Fuller's theory?
Most legal positivists have not contested Fuller's starting point, but have argued that, from such an austere platform, he cannot validly derive any conclusions that would establish a conceptual connection between law and morals. A positivist would criticise Fuller for not demonstrating connections but just showing the efficacy, and that if law is to work as a projection of the will of a sovereign onto the people, the it has to be clear and intelligible. BUT Fuller says that is not his point - he is not saying it has to be effective to be law but it must involve collaboration between the governed and the government, it is not an expression of force, it is guiding not force. Societies will only be governed with collaboration of the people involved - this is how you secure the rule of law. Collaborative enterprise has a sociological element - you cannot secure the rule of law unless the people are willing to be governed by the laws - this is where the moral dimension in law is evident according to Fuller.
What is the objective good?
Objective goods are not moral values, but things which make life worthwhile; qualities which render activities and forms of life desirable; they are, in Finnis' words, "forms of human flourishing" it is also important to realise that "objective" means something like "good independently of desire". "Good" in Finnis' theory does not mean "morally good", but something like "well-being" or "flourishing". Finnis hopes to show that morality is ultimately grounded in the concern for the objective goods. the realisation of this objective good therefore leads us beyond exclusive concern with ourselves and into a concern with community, or the "common good". one of the requirements of "practical reasonableness" is that there should be "no arbitrary preferences amongst persons". this involves accepting that the basic goods are capable of being pursued and enjoyed by any human being and that they are just as good when enjoyed by some other person as when enjoyed by myself.
Post-Reformation Europe?
Post-Reformation Europe, appeared to lack the shared notions of the good (like Aristotle) that such an approach might seem to presuppose. forms of political thinking began to emerge that sought to entrench a distinction between the juridical realm of justice and rights, and the ethical realm of virtue, excellence and the good. two of the most important figures in this development were Grotius and Hobbes. both of them rejected Aristotelian approaches, while both of them invoked notions of natural law that avoided reliance upon a shared notion of excellence or the good.
What did John Locke believe?
Strongly reminiscent of Acquinas' central postulates, Locke's theory rests on an account of man's rights and obligations under God. two important precepts of Locke's theory: 1) its revolutionary nature - right to overthrow 2) he attaches considerable importance to man's right to property - this view exercised an important influence on the framers of the American Constitution with its emphasis upon the protection of property Locke has thus at once been hailed as the source of the idea of private ownership and vilified as the progenitor of modern capitalism.
What was Fuller's aim?
To show that law has an 'internal morality' - a legal system, he argues, is the purposive human 'enterprise of subjecting human conduct to the guidance and control of general rules'. Whatever its substantive purpose, a legal system is bound to comply with certain procedural standards. In the absence of this compliance, what passes for a legal system is merely the exercise of state coercion. The story of Rex fulfils a number of different roles in Fuller's argument. the story reminds us that a system of governance without any rules would not be regarded as a legal system. Fuller's parable - the parable of King Rex, a failed law-maker - eight ways to failure. Hence, these failures are mirrored by eight 'desiderata' and are embodied in the 'inner morality of law'. 1. generality 2. promulgation (publicised) 3. non-retroactivity (prospective) 4. clarity (understandable) 5. non-contradictory 6. possibility of compliance (performable) 7. constancy (stable) 8. congruence between declared rule and official action (in line with official behaviour) if any of these are failed by a system, it cannot be law that exists in that community. The 'inner morality of law' is essentially a 'morality of aspiration'. Nor does it claim to accomplish any substantive ends, apart from the excellence of the law itself. Fuller refuses to regard the 'law' of the Third Reich as law, a view rejected by Hart who prefers the simple utilitarian position that 'laws may be law but too evil to be obeyed'. Fuller's internal morality is no guarantee of a just order: South African legal system likely obeyed all eight desiderata? Was that law? Fuller is much closer to the Aristotelian tradition - as Fuller points out, Aristotle observes that it may at first appear to be easy to know what justice requires, for there are established rules of kist dealing that can be easily learnt. Fuller does not explicitly invoke the notion of an archetype, but the idea is strongly suggested by much of what he says. In his first chapter, he distinguishes between the morality of duty and the morality of aspiration. the morality of duty is composed of standards which demand our compliance, and with which we either comply or do not comply. the morality of aspiration is a matter of goals or ideals to which we aspire. *think about the eight desiderata and the morality of aspiration? in more unusual contexts (eg the Nuremberg trials), when we encounter examples of failures to satisfy the eight requirements that are both extensive and across the board, we may be inclined to treat the system as only a marginal instance of law.
What does Finnis adopt?
an Aristotelian starting point: what constitutes a worthwhile, valuable, desirable life? this is his inventory of the seven 'basic forms of good': 1) Life. The drive behind self-preservation we all have it; it includes health and the procreation of children 2) Knowledge. It is good in itself to be well-informed rather than ignorant or muddled. 3) Play. Recreation, enjoyment, fun. 4) Aesthetic experience. An appreciation of beauty in art or nature. 5) Sociability (friendship). Acting in the interests of one's friends. 6) Practical reasonableness. Employing one's intelligence to solve problems of deciding what to do, how to live, and shaping one's character. 7) 'Religion'. Our concern about an order of things that transcends our individual interests. *these goods do not form a hierarchy and are all equal fundamentally. It is an attempt to answer Aristotle's question. And it is combined with his nine 'basic requirements of practical reasonableness': 1. The good of practical reasonableness structures of the pursuit of goods. It shapes one's participation in the other basic goods, by guiding one's selection of projects, one's commitments, and what one does in order to carry them out. 2. A coherent plan of life. One ought to have a harmonious set of purposes as effective commitments. 3. No arbitrary preference among values. One ought not to omit or unreasonably exclude or exaggerate any of the basic human values. 4. No arbitrary preference among persons. One should maintain impartiality in regard to others and their interests. 5. Detachment and commitment. One should be both open-minded and committed to one's projects. 6. The (limited) relevance of consequences: efficiency without reason. One must not squander opportunities through inefficiency; actions should be reasonably efficient. 7. Respect for every basic value in every act. One should avoid acts that achieve nothing but damage or impede one or more of the basic forms of human good. 8. The requirements of the common good. One should act to advance the interests of one's community. 9. Following one's conscience. One should not do what one feels should be done. *For Aquinas, to discover what is morally right is to ask, not what is in accordance with human nature, but what is REASONABLE.
Acquinas' 4 categories of law simply?
eternal law (lex aeterna) = fundamental law, god decided it, has a creative knowledge we can't comprehend natural law (lex naturalis) = god has made us as rationale creatures, fundamental idea you should do good and not do evil. god have given us the capacity divine (lex divina) = law you may find in the bible and been directed into contextual form. human (positive) law (lex humana) (humanly posited law) = how we go about our daily business on the basis we can't understand divine or eternal theory, things need to be filled in and natural law is one of the instruments by which we give effect to natural law.
Thomas Hobbes
hobbes contrasts "right" and "law" saying that they differ as much as do "obligation" and "liberty" involves a contract with society said state of nature was not a good place -identified with his aphorism that life is 'solitary, poor, nasty, brutish and short'. we overcome this through certain laws of nature - we ought to seek peace and we bind ourselves in this, trust the sovereign to protect us against the threat of others. what he said in Leviathan was that this was the condition of man before the social contract - that is, in his natural state. for Hobbes, every act we perform, though ostensibly kind or altruistic, is actually self-serving. the law of nature is that we mutually divest ourselves of certain rights (such as the right to take another person's life) so as to achieve peace. this mutual transferring of rights is a contract and is the basis of moral duty.
What does Gardner say about law and morality?
law and morality necessarily share a vocabulary (NLT). law and morality necessarily talk in terms of rules or rights. the law reflects someone's views about morals or what justice requires - cannot have a contentless law. Gardner says be careful in saying that legal positivists believe in the complete separation of law and morality and natural lawyers believe in the necessary connection.
Jean-Jacques Rousseau
one of the inspirations behind the French revolution, he saw the state of nature as being a good place. "man is born free but is everywhere in chains", we bind ourselves to monarchy over which we have no control. the problem is not the state of nature, we get rid of our equality in society and go in chains notion of the general will - chains are sometimes more powerful than others. social contract is important in his work - The Social Contract - individual subordination to the general will the end-point of this development is complete moral scepticism and empiricism if we do something, you cannot block that. it has to represent the collective view of the people. you cannot block the collective will... whether good or evil, it must be law (people of Athens)
How should we think of the common good in Finnis' terms?
practical reasonableness allows some degree of self-preference, but also requires that we should be concerned for the common good. but what is the "common good"? given Finnis's argument on incommensurability and his rejection of consequentialism, he cannot say that "the common good" is the sum total of individual goods. Finnis would say that the common good consists in the set of conditions which enables the members of a community to exercise practical reasonableness and lead flourishing lives. the common good (which for Finnis represents the central concern of law and justice) is the total set of conditions which makes such personal plans and projects a possibility. at the same time, the common good is not simply a pre-condition for the pursuit of individual goods. this conception of the common good entails what Finnis calls the "principle of subsidiarity" - this principle affirms that it is the proper function of a community to help individuals to help themselves and to assist individuals in the pursuit of their projects.
John Locke?
similar to Hobbes, looks to the structure of nature saw nature as a place we needed to make a social contract so we didn't harm each other but to Locke it wasn't as horrible a place as Hobbes said - gave people a nudge in the right direction Americans liked him as they felt they were subject to a power which tried to deprive them of their property without a social contract - British imperial rule In Two Treatises of Government c1680: Locke said: The state of nature and natural rights to life, liberty and property - government and law as contractual arrangements to secure natural rights Where does government even come from? We give government authority on the basis of their protection of our natural rights. Tries to salvage the notion of natural rights - we give the government power on our condition.
Aristotle
sought to discover values by the application of reason. importance of natural virtues - theory is already implicit in the world - how we attempt to live a virtuous life. unlike Plato, however, the source of these ideals is to be found in our human nature rather than in external, transcendent values. the natural world, Aristotle argues, contains elements of both stability and change. to Aristotle - justice describes two different but related ideas: 'general justice' and 'particular justice' - our actions are generally just when we are wholly virtuous in all matters relating to others. Particular justice, on the other hand, refers specifically to treating others fairly or equitably.
What was Cicero's teaching on 'natural law'?
that natural law is: universal and immutable stands as a 'higher' law discoverability by reason (it is in this sense 'natural')
What are Hobbes general principles?
that people pursue only their own self-interest the equality of people the causes of quarrel the natural condition of war the motivations for peace. Hobbes is under no illusion that merely concluding agreements can secure peace. such agreements need to be honoured Morality consists entirely of these laws of nature which are arrived at through the social contract. "Law, in general, is not counsel, but command; nor a command of any man to any man, but only of him whose command is addressed to one formerly obliged to obey him" (voluntarist route - Hobbes is very much like Austin)
What is the judge's duty?
the judge's oath to administer justice according to the law therefore becomes the source of both moral responsibility and moral dilemma. No judge in apartheid South Africa could have claimed ignorance of the injustices of the law.
Roe v Wade decision? What about law vs morality in the case of Anthony Bland?
the supreme court affirmed women's reproductive liberty-based right to choose abortion in the first or second trimester of pregnancy supported by feminists and condemned by Christians. Consider legal abortion in Britain? In its quest for conscientious resolution to this complex issue each society must assess its own moral norms. If, as most humans tend to believe, life is sacred, does a foetus count as a person capable of suffering harm? Who's welfare comes first? Should the welfare of the as yet unborn prevail over the distress suffered by a woman compelled to bear an unwanted pregnancy or endure the anxiety, cost and difficulty of bringing up a handicapped child. Criss in America in the past week - Alabama - 25 white men criminalised Abortion even in the circumstances of rape and disability. Where is the collective moral consensus of this society represented? Women's rights are being suppressed by the moral standpoint of an unequal representative. *Consider the decision in Bland also - euthanasia, law and morality? Lord Hoffmann "Anthony Bland has no consciousness at all... The darkness and oblivion... will never depart." What is right vs what is legal? The House of Lords accorded primacy to the right of self-determination over the right to life. They said his life could end. All recognised both the sanctity of life and the autonomy of the patient, but what remained unanswered was how these values were to be reconciled in the absence of an explicit expression of instructions by Bland. For Lord Goff, the answer lay in protecting the best interests of the patient.
What was John Finnis' overarching purpose?
to continue the project begun by Plato, Aristotle, and Aquinas to consider and evaluate human choices, actions institutions, and well-being. "A theory of natural law need not be undertaken primarily for the purpose of ... providing a justified conceptual framework for descriptive social science. It may be undertaken, as this book is, primarily to assist the practical reflections of those concerned to act, whether as judges, or as statesmen, or as citizens" "there are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy"