Law as a philosophical notion

1. Law as a philosophical notion

2. What is law? • „If you ask me, I do not know; if you do not ask me, I know it.“ (St. Augustine) • Law is a social phenomenon – only human beings need law • Law is linked with power – ruler can legitimize his power by law

3. Laws of nature and social rules • Laws of nature represents causal connection, they can be verified, they can be true or false • Legal norms do not need to be true, but they must be valid • Laws of nature represents „Is“, legal norms represents „Ought“

4. Relationship between law and morality I. • First view – law (P) must be in accord with morality (M) because morality dictates the actual content of law

5. Relationship between law and morality II. • Second view – law (P) and morality (M) have independent spheres of action, but morality is higher and therefore base for law

6. Relationship between law and morality III. • Third view - law (P) and morality (M) intersect. Intersection represents common base of law and morality, outer parts represent exclusive spheres of law and morality

7. Relationship between law and morality IV. • Fourth view - law (P) and morality (M) have their exclusive spheres, both solve the question of validity of norms inside their own system

8. Natural law theory • Idea based more on belief than empirical and rational knowledge • Dualistic approach – natural and positive law • Natural law is a body of moral principles that is common to all humankind. Natural law is therefore distinguished from - and provides a standard for - positive law, the formal legal enactments of a particular society

9. Natural law • is not made by human beings; • is based on the structure of reality itself; • is the same for all human beings and at all times; • is an unchanging rule or pattern which is there for human beings to discover; • is the naturally knowable moral law; • is a means by which human beings can rationally guide themselves to their good.

10. Sources of natural law • Nature – ancient world • God – middle ages • Human reason - enlightenment • The first rule of natural law is a formulation based upon the notion of the good and is stated in the following way: „The good must be done, and evil must be avoided“.

11. History of natural law I. • Greek philosophy emphasized the distinction between "nature„(physis) on the one hand and "law„(nomos) on the other. • Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. • It is this that Sophocles' Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature. • For Cicero, natural law obliges us to contribute to the general good of the larger society. The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true.

12. History of natural law II. • St. Thomas Aquinas defined natural law as the rational creature's participation in the eternal law. • Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. • Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. • An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.

13. History of natural law III. • Hugo Grotius based his philosophy of international law on natural law. • In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. • About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs."

14. History of natural law IV. • John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. • If the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one. • While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred.

15. History of natural law V. • John Finnis is a legal philosopher and author of Natural Law and Natural Rights (1980), a seminal contribution to the philosophy of law and a restatement of natural law doctrine. • Finnis defends the following basic human goods: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and religion, the last being defined as "all those beliefs that can be called matters of ultimate concern; questions about the point of human existence." • Finnis's requirement that practical reason requires "respect for every basic value in every act" is intended both to rule out consequentialism in ethics and also to support the moral viewpoint of the Catholic Church.

16. Importance of natural law • The influence of natural law depends on how many people believe this idea and act in accordance with this belief • Theory of social contract • Concept of natural human rights and freedoms • Content of natural law (For instance, slavery was once accepted as normal and natural. We now know that slavery violates the natural law.)

17. Legal positivism • The word "positivism" itself derives from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something • States that there is no inherent or necessary connection between the validity conditions of law and ethics or morality • The law is seen as being separated from moral and ethical values, and it simply sees the law is posited by lawmakers, who are humans

18. History of legal positivism I. • Jeremy Bentham- philosopher, jurist, and social reformer. He is regarded as the founder of modern utilitarianism. • Bentham's An Introduction to the Principles of Morals and Legislation focuses on the principle of utility and how this view of morality ties into legislative practices. His principle of utility regards "good" as that which produces the greatest amount of pleasure and the minimum amount of pain and "evil" as that which produces the most pain without the pleasure. • This concept of pleasure and pain is defined by Bentham as physical as well as spiritual. Bentham writes about this principle as it manifests itself within the legislation of a society.

19. History of legal positivism II. • John Austin considered the law as commands from a sovereign that are enforced by threat of sanction. • In determining 'a sovereign', Austin recognized it is one whom society obeys habitually. This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers. • Austin was greatly influenced in his philosophy by Jeremy Bentham.

20. Hans Kelsen • Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of jurisprudence. • Kelsen's Pure Theory of Law aims to describe law as a hierarchy of norms which are also binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. • Central to the theory is the notion of a 'basic norm (Grundnorm)‚- a hypothetical norm, presupposed by the theory, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitution, are understood to derive their authority or 'bindingness'. • Kelsen's theory has been developed by scholars in his homelands, notably the Vienna School in Austria and the Brno School led by František Weyr in Czechoslovakia.

21. Herbert L. A. Hart • A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment. • A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules. • The idea of the Rule of Recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm.

22. Sociological jurisprudence • Law must be studied in its relation with the society (how it influences law and how the law influences society) • Sociological jurisprudence is also concerned with the effects of social phenomena on both the substantive and procedural aspects of law, as well as on the legislative, judicial, and other means of forming, operating, changing, and disrupting the legal order • Law in books – lawin action