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Idea of Law by Dennis LLoyd

chapter 1: is law necessary?

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General Ideas of Law (extracted from Preface) Law is one of the institutions which are central to the social nature of man and without which he would be a very different creature. Civilizing forces in human society and the development of the system of legal rules has shaped the growth of civilization. The highest perfection of society is found in the union or order and anarchy -

Is Law Necessary? Law expresses the view on Mans nature: o Inherently good or evil? Perspective of Mans nature affects the purpose of the law o Evil nature law exists to curb passion of man Thinkers: 1. Ancient China: A single law enforced by severe penalties is worth more for the maintenance of order than all the words of all the sages Legists argued that man was initially evil and good ways were influenced by the social environment (teachings, rituals, restraints, and penal laws)

2. India: devils workshop where the logic of the fish would win If men were left to themselves, the world would be in chaos and big ones will eat the little ones. 3. Bodin: Original state of man was one of disorder, force, and violence. 4. Hobbes: Man is in a state of perpetual warfare

5. Hume: Without law, government and coercion, and human society could not exist 6. Machiavelli: Men are naturally bad and will not observe their faith towards you 7. Seneca: Men lived together without the need for law in a primitive state and there was order because men followed their nature (no private property and no coercive agreement). It was the desire to enjoy the good things in the world privately which created avarice or greed or want of wealth. Avarice was the root of mans corruption and this idea is synonymous to the biblical account of the fall of Man. Developed as rationale for the need to establish coercive institutions,, theory of government and state in the Western world as reflected in: St. Agustine: law was a natural necessity to curb mans sinful nature. Aquinas: state was not a necessary evil but the consequence of mans natural development of man (concept taken from Aristotle)

o Man is basically good corrupted by the social environment, no need for legal rules because rational harmony will prevail (anarchist point of view) Examples: 1. Plato: Envisioned an idealist picture of society where social harmony is derived from reason and wisdom from philosopher kings (note: this leans towards totalitarianism) 2. Adam Smith: laissez-faire or free play of economic forces, no intervention from government 3. Godwin: voluntary cooperation and education would enable all law to be abolished.

4. Bakunin and Kropotkin: state, law, coercion, and private property were enemies of human happiness, principle of mutual-aid would replace the coercive community. 5. Tosltoy: God-inspired life 6. Marx: Law is devised to maintain the privileges of the property-owning class. 7. Read: Human groups based on mutual aid can be relied upon voluntarily or organize a social economy System of rules for the simplest form of society is inevitable.

Idea of Law by Dennis Boyd

chapter 2: law and force

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Greek mythology: Anu (symbol of authority and cosmic order) and Enlil (obedience) Without the recognition of some authority whose decrees and sentences determine the structure of order in the world there can be no organized society and therefore the authority of divine rule makes possible the functioning of the universe as a social whole. But without the element of force to ensure obedience to the divine decree the universe would never attain the role of statehood. Authority Some person is entitled to require the obedience regardless of whether those other persons are prepared to find the particular order or rule upon them as acceptable or desirable or not. Legitimate authority creates the feeling of subordination, relationship between superior and inferior party Max Weber: 3 Forms of Authority 1. Charisma: grace peculiar form of personal ascendancy which an individual may acquire in a particular society also described as a hypnotic effect key to understanding the concept of legitimacy

2. Traditional Domination: Authority derived from the leader may pass on to his successors as observed in new monarchies where descendants of the charismatic founder derives legitimate authority 3. Legal Domination: The institutional character of the legitimacy has become impersonal and legalistic as demonstrated in a democratic state where authority is institutionalized in the bureaucracy and judiciary which operate impersonally. Legal domination can dispense with charisma in this situation.

Force The force of law is and capable of being enforced by coercion. Perspectives on the use of force to enforce law argue: 1. Force is the antithesis of law 2. Legal coercion is a matter of incidental procedure, not essential to the existence of law because people obey the law and consent to it rather than be restrained by it. 3. International law concept of coercion is ironic because civilize countries recognize and consider international laws as binding but is not enforceable because there are no international forces to enforce international laws. Can We Dispense with Force? All levels of society human law has depended on for its ultimate efficacy on the degree to which it is backed by organized coercion. Freud believed that aggressive urges could be repressed but not eliminated, it seems more probable that every culture must be built up on coercion and instinctual renunciation, hence the connection between civilized society and coercive social order.

Rules About Force As the use of force becomes more regulated, it has been pushed further and further into the background. Force never was or at least has ceased to be the essential feature in law considering the nature of man according to Freud.

Idea of Law by Dennis LLoyd

chapter 3: law and morals

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Law and Religion Law was regarded as having sanctity and divine origin in the early ages. The gods were in charge of inflicting punishment for the aggrieved party. Hebrew and Greek Influences Hebrew: Greek: Greek form of faith emphasized on the rational order of the universe governed by intelligible law, ascertainable by rational investigation in contrast with moral mysticism. Man, as a rational being was capable of understanding the rational physical order of the universe. Law is invalid if not justifiable on rational grounds Duty to obey is not based on what is wrong or immoral but on the authority of the State Gods will dictated the moral pattern for all mankind, and obedience to that will was secured by the divine and punishment of offenders. Law was conveyed to mankind through God-intoxicated individuals Man-made laws would conflict with moral laws from God. Man-made laws are invalidated by moral laws from God. Mystical and irrational faith Duty to obey based on whether the human law is not in conflict with divine law.

Relation of Law to Morals Law and morality may conflict or diverge. In the case where there is a duty to obey the law but the contents of the law is immoral, morality requires and justifies disobedience. Law and morality reinforce and supplement each other as part of the fabric of social life. Crime and Punishment Three ways in which morally impinges on the law:

1. Determining guilt is linked with the moral idea of responsibility. Morals reinforces the authority of the law. 2. Responsibility in law is treated as excluding the possibility of guilt. A crime entails a mental element mens rea or guilty mind and without this mental state, the accused is relieved of legal responsibility. 3. Morals impinge on the legal responsibility of decided upon the punishment to be inflicted Conflicts between Positive Law and Moral Law Three ways in which divergence between positive law and moral law may arise: 1. Law and morals must necessarily coincide because the moral law dictates the actual content of the law: i. Hebrew and Calvinist theories: only the moral law is valid and effectively binding ii. Hobbes: morality is nothing more than obeying the law iii. Hegel: the individual can gain no higher right than to obey the law of the state 2. Man-made law and moral law have a different realm but moral law is higher. Conflicts are resolved in favor of moral law. i. If human law conflicts with moral law, human law is nullified by this relieves the citizen to obey. ii. It is a matter left between God and the unjust ruler, the citizens duty is to simply obey. 3. Exclusive autonomy of law and morality, neither can resolve questions of validity save in its own sphere (Legal Positivism)

Idea of Law by Dennis LLoyd

chapter 4: natural law and natural rights

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Meaning of Nature There are no rules governing human conduct which are natural to man since these differ markedly from community to community. Laws are a mere matter of conventional arrangement and there is nothing in nature which lays down what these laws should contain. Nature in man is no more than instinct and much of human laws focus on curbing mans instincts. Plato and Aristotle Plato: Nature as Ideal Justice is a kind of absolute, realized only in an ideal state ruled by philosopher-kings (static view of justice, totalitarian conception of law and rigid government) Aristotle: Nature as Fact Justice might either be conventional, varying from state to state according to the history and needs of particular communities; or natural, common to all mankind Stoic Philosophy Stressed the universality of human nature and brotherhood of man Reason as essential characteristic of humanity Propelled the ideal of common law as applicable to all of mankind jus gentium Christianity and Natural Law Natural law is equated with divine law and expounded by the head of the Catholic Church, the Pope was invested with power to interpret the laws of God. Aquinas and Scholasticism Distinction between natural law and divine law was made. Natural law is ascertained through reason but its premises is based on the beliefs of Christian theology. Human law fills the gaps of natural law (rigid)

Renaissance and Secular Natural Law Focus on the rational character of the law Grotius: Even if God did not exist, natural law would still apply because the unique quality in man is his reason and in the field of international relations, states behaved in this nature and were therefore governed by natural law. Natural Law and Natural Rights Man has fundamental rights in a state of nature and that when civil society came into being he took over those rights into his new civil status and these still remained protected by natural law. Locke: Social Contract The power of government was conceded only on trust by the people to the rulers and that any infringement by the latter of the fundamental natural rights of the people put an end to the trust and entitled the people to re-assume their authority. American Revolution was influenced by Lockes philosophy. Rousseau: General Will Natural rights conferred absolute and inalienable authority on the people as a whole. Any actual ruler was placed by delegation of the general will of the people and removed when rejected by the general will. Influenced the French Revolution Modern Approaches to Natural Law (19th century, rebirth of natural law) Three categories of natural law: 1. Catholic (Aquinas) 2. Philosophical (Neo-Kantism) 3. Sociological Apply scientific methods to derive mans fundamental drives and the norms of conduct which may be shown to be inseparable from realizing these human factors in society.

Post-War Revival of Natural Law Natural law theories were revived after the fall of Nazi and Fascist dictatorships. There was an aversion of legal positivism. Relevance of Natural Law to the Modern World In the modern world, natural rights have been incorporated into the Constitution.

Idea of Law by Dennis LLoyd

chapter 5: Legal positivism
Is and Ought (David Hume)

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Hume sought to distinguish between fact and moral obligation and human law and morals. The law seeks to lay down standards or norms of conduct for citizens or officials to indicate the proper sanction. Law calls for a certain measure of regularity of observance for without this feature it would hardly be entitled to rank as law at all.

Utilitarians (Jeremy Bentham and Stuart Mill) The standard measure is if the law increases pleasure and diminishes pain. Bentham principle: the greatest happiness to the greatest number

Law As It Is and As It Ought to Be What the law is and what it ought to be are different subject matters of inquiry. In deciding the validity of a rule, it is irrelevant to ask if it is just or unjust, good or bad. Rejected Hobbes notion that whatever the law decrees is synonymous with morality. Great principle of utility is the essential element in the pursuit to reform the law. According to positivist thinkers, the view that law has a higher morality bars it from being subject to reform which is no law at all.

Legal Positivism The positivist prefers to concentrate on studying values and exploring how these may best be realized in current social conditions, rather than postulate absolute and unprovable rules claimed to be valid at all times. The lawyer is concerned solely with analyzing legal principles and applying them logically or systematically to fresh situations as these arise.

Idea of Law by Dennis LLoyd

chapter 6: law and justice

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The idea of law has always been associated with the idea of justice. The law without justice is a mockery if not a contradiction. What is Justice? Moral value, one of the aims or purposes which man sets himself in order to attain the good life Ultimate good is a matter not of demonstration but of choice

Platonic Justice Justice applies to objects and people in which everything has its proper purpose and sphere. Justice is conforming to ones place in the system based

Formal Justice and Equality Greek Inequality between human beings called for different treatment of people. There is a natural inequality between human beings No perfect equality. Justice is the pursuit of attaining equality due to inherent inequalities. In law, justice is obtained when laws are applied without discrimination. Like shall be treated as like. 1. Rules that determine how people should be treated in given cases. 2. Rules are general in character to enable people who qualify to fall under these rules. 3. Justice requires impartial application of the rules.

Substantial Justice Application of rules in formal justice tend to be procedural. A rule can hardly be said to be a rule unless it applies generally to whatever persons or situations fall within it. 1. Concrete Justice: scale of values, our choice is not absolutely free and is conditioned by our history, traditions, social and economic environment. 2. Equity: according to Aristotle, the general nature of rules means that not every individual situation can be foreseen. The corrective response to conferring

discretionary power to interpret the laws in the spirit of equity instead of insisting on the hard letter. Legal Injustice 1. Legal injustice may be done when a case is decided contrary to the law itself regardless of the substantial aspect of the law. 2. The law is not administered in the spirit of impartiality. 3. The substantial aspect of the law is unjust but it is impartially applied.