THE PHILOSOPHY OF LAW

1. THE PHILOSOPHY OF LAW

2. NATURAL LAW PHILOSOPHERS • PLATO (427 – 347 BCE) • Student of Socrates • Wrote as the voice of Socrates • Believed that human law should strive to reflect certain universal and eternal truths. • Nature is inherently reasonable and good. • Law is the moral imperative and the ideal that humans must attempt to achieve. The most basic law is to do good and avoid evil. Socrates Plato

3. The purpose of law is to serve as a moral guide on how to live the good life. • A human being achieves a state of justice through reason. The state achieves a state of justice through law. • Plato believed that there is a hierarchy of obedience. First people follow the law out of fear, then out of habit and then out of the realization that law is just. • Since law should reflect a moral quality, Plato argues that it is just to disobey an unjust law that does not produce harmony and justice. (Civil Disobedience)

4. Aristotle (384 – 322 BCE) • Student of Plato • Law is derived from Nature and is inherent in all things animate and inanimate. • Law and justice are meant to produce human happiness. This happiness is gained through being virtuous and controlling our “inner beast”. • Unlike Plato, Aristotle believed that justice was within the grasp of human beings.

5. Human beings are endowed with the ability to think and reason. Therefore humans can recognize their own nature and make laws that are suitable to that nature. • The perfect standard of law is revealed through the exercise of human reason guided by observation. This is called rationalism. • The laws of the state must regulate human life to help citizens to use their reason to its greatest potential.

6. Cicero (106 – 43 BCE) • Roman politician, lawyer and legal philosopher. • Law is rooted a divine source; Jupiter. • Natural Law is universal and unchanging. Nature ensures the common good. • Law is in the mind of “wise and intelligent men” and they are the standard by which justice and injustice are measured (philosopher kings). • If in the minds of “wise and intelligent men” the law is in conflict with the laws of nature it should be disobeyed. • Civil disobedience should be used to force the government to make laws that conform to natural law.

7. Dominican Monk. • Influenced by Aristotle and Christian teachings. • Natural Law and Rationalism are consistent with Christian truth. • Law must mirror a natural world order made known through reason and the revelation of the prophets. Law has a moral purpose. • Law gains its legitimacy through reason. The validity of law is based on its moral content or justness. St. Thomas Aquinas (1224 – 1274)

8. Four kinds of Law: • Eternal Law Natural Law Divine Positive Law Human Positive Law • Eternal law comes from God and is unchanging. • Natural law is eternal law that can be known to humans. • Divine Positive law is the part of eternal law revealed through the scriptures. • Human positive law is the laws made by the state. • The Order of Natural Law • First Principle: Do good and avoid evil. • For example preserving life, caring for children, knowing the truth about God, not harming others, helping the poor and the sick, shunning ignorance, etc. • Second Principle: How to act based on the first principle. • For example the enforcement of the law, making of laws, functioning of society.

9. Unlike Aristotle, Aquinas did not believe that the state leads people to their greatest potential. The state is subordinate to the Catholic church who is in charge of moral matters on Earth. Therefore an unjust law does not have any binding force. Such laws are an act of violence against the people of the state. • Aquinas defines human law as “the ordinance of reason for the common good, proclaimed publicly by a ruler who has care for the community”.

10. English Philosopher and Political Theorist • All people have natural rights given to them by birth from God. The most fundamental rights are life, liberty and property. • Natural law states that no person should deny these rights to another therefore the main goal of the state is to preserve these rights. • In the state of nature, people’s passions often get the better of their reason which leads to the oppression of the weak. People enter into civil society to hand over authority to the state to preserve rights. John Locke (1632 – 1704)

11. Locke recommends that if the ruler violates the natural rights of the people, the people are justified in rebelling and replacing an unjust government with one that will respect their rights. “The Taking of the Bastille” during The French Revolution (1789)

12. R. M. Dworkin (1931 - ) • Political and Legal Philosopher • Law must possess a moral content. • Legal reasoning is interpretive as we try to make political and moral sense out of difficult situations or cases. • Law has to have political integrity. Law should be a union of widely held, coherent political decisions that show a consistency of moral choices and a shared vision of social justice. Law cannot focus on individual wants and desires.

13. POSTIVE LAW PHILOSOPHERS • Thomas Hobbes (1588 – 1679) • English Political Philosopher • The state of nature is a state of perpetual war where the strong prey on the weak. In the state of nature life is solitary, poor, nasty, brutish and short. • In order to survive, people must give up their rights to the state. The sole purposes of law is to maintain order and strengthen government.

14. All people must obey the law at all times. To not follow the law would only lead the world into chaos. • The weakness of natural law is that it allows people to find their own meaning of the law. This makes law ineffectual and legitimizes tyrants.

15. Jeremy Bentham • Jeremy Bentham (1748 – 1832) and John Austin (1790 – 1859) • Legal Philosophers • Utilitarianism – the greatest good for the greatest number of people. • The purpose of law is to maintain social order and the social good. The function of law is more important than its quality. • Law is separate from morality. Natural law and individual morality are too subjective to secure the happiness of the majority.

16. Law requires: • 1) The existence of an authoritative body that is in the habit of being obeyed. • 2) Legal pronouncements given to political inferiors. • 3) There is an imposition of the duty to obey. • 4) There is enforcement through penalties. • Obedience to the law is demanded of all. (Rule of Law) • The governed are superior to the governor therefore abuses are kept in check by the fear of active resistance. • “The mischief of a bad government are less than the mischief of anarchy.”

17. H.L.A Hart (1907 – 1992) • Law is made up of rules of general application that are backed up by threats given by people that are generally obeyed. • Law can be defined by Primary Rules which define what an individual can or cannot do and Secondary Rules that set out how primary rules will be made valid and enforced. • Hart tries to prove that there can be a precise set of rules to define human conduct. He does recognize that law has an open texture or there are limits to define human conduct. • His goal is to take to subjectivity (morality) out of law.