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Law and Society

2. Western political thought. Ancient (classical) period (800 BC-500 AD): Greek and Roman civilisationsMedieval period (500-1500): Dark Age; Middle Ages; RenaissanceModern period (1500-): Protestant Reformation; Age of Exploration and Discovery; English Revolution; Scientific Revolution; Age of En

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Law and Society

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    1. 1 Law and Society Topic 2

    2. 2 Western political thought Ancient (classical) period (800 BC-500 AD): Greek and Roman civilisations Medieval period (500-1500): Dark Age; Middle Ages; Renaissance Modern period (1500-): Protestant Reformation; Age of Exploration and Discovery; English Revolution; Scientific Revolution; Age of Enlightenment; American and French Revolutions; Industrial Revolution; Colonialism

    3. 3 Plato (427-347 B.C.) Concept of knowledge Knowledge about the physical world Moral knowledge Truth Good Beauty Justice Virtue

    4. 4 Plato’s philosopher-king The ideal king should be a philosopher Lover of knowledge, wise Morally virtuous Therefore fit to hold political power The king would be assisted by “guardians” The ruling elite Should practise “communism”: total devotion to serving the common good of the community

    5. 5 Justice according to Plato Justice in society: each person is doing what s/he is by nature most fitted to do Classes in society Ruler & guardians Soldiers Peasants Artisans (craftsmen) merchants

    6. 6 Plato’s thoughts about law Law: general & abstract rules that are applied to particular & concrete cases Problem: mechanical application of rules in a rigid & inflexible manner may lead to injustice in particular cases Example: rule applied to case 1, case 2, case 3, … & produces just result; when applied to case n, the result is unjust

    7. 7 Law and discretion Tension between law and discretion (to be exercised by ruler/ judge according to circumstances of particular case) Tension between law and equity (in English legal history) Ideal scenario: philosopher king exercising discretion wisely, no need to be strictly bound by rules of law (therefore: the Rule of Law is only a “second-best” system)

    8. 8 Aristotle 384-322 B.C. Advantages of the Rule of Law: Human beings: subjective, bias, prejudice, emotions, desires Law: impersonal & objective; “reason unaffected by desire” Law: based on customs – accumulated wisdom of many generations Law: based on views of many participants in the law-making process

    9. 9 Aristotle’s classification of states

    10. 10 Roman civilisation Contribution of Roman law to the political and legal thought of Western civilisation Roman history: republic; empire Corpus Juris Civilis: Codification in the 6th century A.D. by Emperor Justinian Western Roman Empire collapsed in 476 AD Eastern Empire (Byzantium) survived until 15th century (capital at Constantinople/ Istanbul)

    11. 11 The Middle Ages Age of Faith (Western Europe as one Christendom; Roman Catholic Church) St Thomas Aquinas (13th century) Eternal law (made by God & part of the natural order in the universe), including: Divine law (known by God’s revelation to mankind; for salvation of souls) Natural law (known by human reason; basis of human law – for maintenance of social order)

    12. 12 Thomas Hobbes (1588-1679) “father of modern political thinking” Background: 17th century English history Political conflict: power struggles between King and Parliament Religious conflict: Catholics, Anglican, Puritans Social and class conflict The English Civil War (1642-1649)

    13. 13 Hobbes (2) The Leviathan (1651): “a monster of the sea” A thought experiment: What happens in the State of Nature? Human nature: selfish, full of desires, greedy, aggressive Result: “war of all against all”; life would be “solitary, poor, nasty, brutish and short”

    14. 14 Hobbes’ social contract

    15. 15 Results of having the social contract Law and order Security of persons and property Social order maintained Crimes deterred; policemen appointed by ruler; criminals tried and punished Disputes among subjects resolved peacefully by ruler or judges appointed by ruler

    16. 16 John Locke (1632-1704) Two Treatises of Civil Government State of Nature Human nature: rational Laws of nature recognised by human beings Natural rights exist Right to life Right to liberty Right to property

    17. 17 Locke (2) Why move from State of Nature to the establishment of the State (“political society”)? Because of inconvenience in the interpretation and application of the laws of nature When a State is established Judges: interpret and apply the law Also: Defence against invasion can be effectively organised

    18. 18 Comparison between Hobbes’ and Locke’s social contracts Hobbes The parties to the contract are the subjects (those to be ruled by the ruler) The subjects transfer all their rights and powers to the ruler Locke The ruler is a party to the social contract Subjects’ submission to ruler conditional on ruler’s performance of his obligations under the social contract: to recognise and protect subjects’ natural rights Sometimes: “right to revolution”

    19. 19 Locke’s influence American Declaration of Independence 1776 Liberalism: an influential school of thought Natural rights Political power: dangerous Abuse of political power: tyranny, cruelty, oppression

    20. 20 Liberalism Montesquieu (18th century France) Political liberty vs. abuse of power Man: when invested with power: will carry his authority as far as it will go Lord Acton (19th century England) “absolute power corrupts absolutely”

    21. 21 Liberalism (2) Confucius: tyranny and the tiger ????? Political power as a wild animal Project of liberalism: to tame it, civilise it, to minimise the possibility of abuse Institutional devices needed: To control & regulate exercise of polit. power To achieve “limited government” Government of laws, not government of men

    22. 22 Liberalism’s institutional devices Constitutionalism Rule of Law Separation of powers Checks and balances Independence of the judiciary Representative government (democracy) Bill of rights: protection of human rights and civil liberties (fundamental freedoms)

    23. 23 Jean-Jacques Rousseau (1712-78) Background: 18th century France: Age of Enlightenment Traditional human social and political institutions subjected to rational criticism and evaluation In search of reform and progress: to build a better world Impact: French Revolution 1789: slogan of “liberty, equality and fraternity”

    24. 24 Rousseau (2) The Social Contract “Man is born free, but everywhere he is in chains.” When is political power legitimate? How can people be free when they live within a State and are governed by laws backed up by State coercion?

    25. 25 Rousseau’s social contract

    26. 26 The question of sovereignty Question: Where does sovereignty vest? (Traditionally, the monarch was the sovereign.) Answer: theory of the sovereignty of the people (popular sovereignty) Citizens: equal right of political participation, including participation in law-making

    27. 27 The question of freedom Question: Are people still free after the State is formed? Answer: Yes, if the people are the authors of the law: The people are free when they obey laws that they have made for themselves. When such laws are enforced against law-breakers: they are “forced to be free”.

    28. 28 Three kinds of “will” in society Particular will: based on the self-interest of individuals or groups Will of all: sum total of particular wills General will: based on the common interest of the community as a whole (the common good) The law: to be based on the general will

    29. 29 Strands in Rousseau’s thought Not only democracy or sovereignty of the people, but also Patriotism, nationalism, communitarianism Emotional attachment to the community Sense of belonging Individual’s surrender to the collective Subordination of individuals’ interest to collective interest

    30. 30 Ambiguity in Rousseau’s thought Pointing to two possible directions that are very different: Liberal constitutional democracy (e.g. Britain, U.S.A.) Totalitarianism (totalitarian democracy): mobilisation of the masses in support of a great leader or single party rule (e.g. Communism in Soviet Union, Nazism)

    31. 31 Karl Marx (1818-1883) Marxist interpretation of history (historical materialism): Classes in society Oppression and exploitation Domination by the ruling class The State Private property The law

    32. 32 Stages of social evolution according to Marx

    33. 33 From capitalism to socialism

    34. 34 Principles of contribution and distribution under socialism and communism

    35. 35 Further development of Marxism V.I. Lenin (1870-1924) Critique of imperialism The communist party: vanguard of the proletariat; dictatorship of the proletariat Mao Zedong (1893-1976): adapting Marxism to China; the peasant revolution Deng Xiaoping (1904-1997): “socialism with Chinese characteristics”; “socialist market economy”

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