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Perfecto Fernandez
Philosophy deals with thoughts rather than external action.
Refers to law as a special branch of learning and inquiry, in the sense of a legal
system.
4 Central Problems
1.) What is the nature of law?
2.) What is the distinguishing criterion of law?
3.) Does an unjust law remain a valid law?
4.) What are the ends or ultimate goals of law?
Nature of Law
Expression of ideas in Philosophy
1.) Empirical propositions based on sense experience. The Conveyance of
a fact and is subject to factual verification.
Example: the Sky is blue
2.) Normative propositions function as guides or norms of human conduct.
Conveyance of a command. There is a value judgment.
Example: Thou shalt not kill.
Honesty is the best policy (this is a normative proposition
hidden in an empirical-like form. Once you analyze it, according to the
article, it comes out as a value judgment, since it is the judgment of one
person to state that honesty is the best policy, which means that the the
saying Honesty is the best policy becomes BE HONEST!)
- Legal propositions are neither a part of science nor can they be validated by
science. Rules of law are Normative in character.
Distinguishing Criterion of Law
how we distinguish rules of law from rules that are not law. We use the notion
of legal validity.
Elements of Identification
1.) Element of Coercion by sovereign authority
2.) Norm of validity by which rules belonging to system are identified
Validity is a relational concept, the problem in every case is whether or not the rule
in question is valid in relation to a particular system. Thus question of validity cant
be solved in abstract, but only in context of a particular legal system.
Criteria of identification = Rules of recognition (Hart)
Example: 1. Judicial adoption a secondary
rule of recognition
2.
Approval of a law by the
president a rule of
recognition
Unjust Law as valid law
Positivist view of law affirms that rules of law remain law, regardless of
their moral invalidity .
Natural law theory - maintains that law must conform to basic moral
standards and that a law which is unjust is not a law.
Perfecto Fernandez believes that natural law doctrine is based on fallacy, where a
moral norm may actually be an imperative/normative command and so is not based
on sense experience/empirical proposition.
Example. Honesty is the best policy It is my judgment that there are good
reasons for being honest and it is my desire that you accept these reasons and BE
HONEST.
Thus, it is language that gives preferences (like how one person thinks honesty is
the best policy) a semblance of concreteness and universality.
Moral principles entail:
1.) Private and individual judgments as to what is desirable
2.) The desire that others conform to judgments in their conduct. (like the
honesty example)
Thingification the moral judgments of private individuals are made to appear as
essential attributes of the universe.
Note: Following Hume and Kant, no contemporary philosopher seriously entertains
the view that moral values are existing as facts of nature.
Philosophy vindicates the practical grounds for rejecting conformity with moral
standards as a requirement for legal validity.
Criteria of validity or rules of recognition are Empirical.
Moral Standards as shown by philosophical analysis are essentially judgments of
individuals, hence subjective and variable.
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When we call a law unjust and are criticizing a rule in the legal system, we do so on
the basis of a rule in a different system, a system of morality.
Ends of law for the present and foreseeable future, law has the modest but crucial
task of providing the social conditions of security and liberty essential to human
achievement.
One Major Point in the article: Perfecto Fernandez seems to believe that the natural
law theory, which is based on moral standards, is a fallacy.
IS LAW NECESSARY
Dennis Lloyd
Main Thesis:
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Whether or not man is in nature good or evil would give us an answer to the
question of necessity of law.
I.
A.
People who believe in this nature of man seek to find the sources of the ills
of mans present condition.
The defect in mans social environment is the true cause of the evils, which
afflict him.
This served as a pattern for a movement toward a return to nature -going back to mans primitive, unspoiled nature where there is a happier
society in which uncorrupted natural impulse will replace coercive regimes.
III. Mans nature is evil
1.
China (Legists) argued that mans nature was initially evil and that
the good ways in which men often acted were due to the influence of
the social environment, particularly the teaching of rituals and the
restraints of penal laws.
2.
India (shastra) men are by nature passionate and covetous and that
if let to themselves, the world would resemble a devils workshop
where the logic of the fish (means: big ones would eat the little ones)
would reign.
3.
Western Europe
(a)
Bodin original state of man was that of disorder, force, violence
(b)
Hobbes the life of primitive man was a state of perpetual
warfare, where individual existence was bruttish, nasty and short
(c)
Hume without law, government and coercion, human society
could not be exist and so law is a natural necessity of man.
(d)
Machiavelli men are bad and will not observe faith towards you
(traitors), you should not trust them.
B.
The Golden Age
1.
Ovid man dont need laws because it is written in his nature, yet
everyone is safe because conscience is their guard.
2.
Seneca in the primitive innocence/state, men lived together in
peace and happiness, having all things in common, there is no private
property; no slavery, no coercive government; no corruption; everyone
is free and equal.
D.
1.
2.
3.
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E.
1.
2.
3.
4.
5.
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Looks forward when social harmony will be attuned to the natural goodness
of man, unimpeded by such environmental snares as the institution of
private property.
Innate Goodness and the price of Civilization
Man at the primitive level is innately good and that it is the social and
political organization of civilized life, which has introduced violence, and
disorder which led to systems of legal coercion.
1.
Elliot Smith
most of the friction and discord of our lives are obviously the result of such
exasperations and conflicts as civilization creates.
The artificial aim, which is the object of envy and malice, is the source of
conflict.
2.
Herbert Read
Such society without rules is not just a society without order but the very
negation of society itself.
6.
F.
PERSISTENT QUESTIONS
H.L. Hart
I.
Law is a prophesy prophesy of what the courts will do is the law itself.
II.
1.
2.
3.
4.
5.
III.
A.
B.
C.
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Rules are different from mere convergent behavior. The latter need not
make use of words such as must, ought, and should, which are used in
rules.
All rules have a penumbra of uncertainty, where the judge must choose
between alternatives.
II.
The person
III.
1.
2.
3.
IV.
A.
B.
C.
D.
II.
Conclusion:
the idea of habit of obedience fails to account for the continuity of legal system
(mere habits of obedience cannot confer on the new legislator any right to
succeed).
Habit of obedience does not make sure that the new legislators orders will be
obeyed (for people must at least accept the rule under which the new legislator
is entitled to succeed in order for them to obey the new sovereign)
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Habit
a) convergence of behavior,
enough for a group to have
salient features:
aB.
habit
b) any deviation need not
be criticized
-5Rules
a)
convergence
is
not
enough to constitute rules
C.
D.
E.
Conclusion:
Even if Rex, whose orders are generally obeyed may be called a legislator, habits of
obedience to each succession of the legislators are not enough to account for the
RIGHT of the successor to succeed and for the consequent continuity of legislative
power because:
1.
habits are not normative; they cannot confer rights of authority to
anyone;
2.
habits of obedience to one individual cannot guarantee succession in a
class.
This supports the idea that habit of obedience brought about by the characteristic of
modern society (people know nothing more about the laws except that they are
laws to be followed which disobeyed would warrant infliction of punishment) leaves
the subject with no choice but to obey not because he knows the laws are good but
rather because he afraid of the penalties.
This makes the habit of obedience a
WEAK DOCTRINE for failing to take into account the other active aspects like lawmaking, law identifying, etc.
IV.
Persistence of Laws
Explanation: The reason why past laws are still being followed at present is because
the present sovereign recognizes them as laws.
Thus, a statute made by past
sovereign is not law until it is actually applied by the court in a particular case and
enforce with the consent of the new sovereign (THIS IS AN ABSURD IDEA). Again,
the idea of persistence of laws based on habits of obedience falls apart.
V.
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I.
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Earlier ages: Laws was regarded as having a sanctity which was of divine origin
A.
1.
2.
3.
4.
5.
B.
That laws depend for its validity on having some legal penalty (Austin) would
impress a believer of the classical notion of laws.
The story of Orestes illustrates the belief in divine intervention for offenses
against the laws and degree of flexibility in the administration of divine justice:
results from a system of polytheism where in one god might be set off against
another as to mitigate the rigour of the law.
Hebrew and Greek influences
HEBREW INFLUENCES
one God (rejected polytheism) which will dictate the moral pattern of all man
kind and would inflict punishment to those who would disregard his decree.
Kings are lawfully anointed by the Lord; enjoys divine sanctity
Moral law is revealed through prophets who establish a DIVINE ORDER OF
MORAL LAW: scope and decrees rested not on the affirmations of rulers and
priests but those individual chose by God
Man made laws cannot not stand validity against divine laws
Laws are equated with morality for the ONE TRUE LAW is the Law that
embodied Gods will.
LAW simply means the moral and religious law which is laid down by God or
developed by divinely inspired human beings
This can be found in the post-prophetic Jewish state and early stages of
Calvanism where Laws and morality are one and no recognition of laws can be
granted if it is lacking divine inspiration.
Thus, conflict between human laws and moral laws are resolved by treating all
valid human laws as mere expressions of the moral law.
source of moral law rests in the authority of those whom can persuade
themselves and other of their inspiration
powerful attachment to rationalism belief that the physical and moral order of
B.
II.
A.
B.
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C.
III.
justifies and requires obedience (ex. Nazi regimes a positive law that
contradict moral law)
This brings reason why modern jurist believe that there can be no total
identity between law and morality.
Common territories between law and morality
(a)
both are concerned to impose a standard or conduct without
which human society will not survive.
(b)
Both use normative language
(c)
Both law downs duty or what man ought to do.
Where law and morals diverge
(a)
moral law may not be embodied in popular sentiment unlike
positive law
(b)
Moral law may create more evil if supported by positive law (ex.
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the idea of guilt in criminal law is linked with the idea of moral
responsibility (morals then reinforce the authority of the law and duty
to render obedience to decrees)
2.
responsibility in law is treated as excluding the possibility of guilt if
there are circumstances of excuse which causes us to adjudge the
accused not morally implicated (ex. if the accused is insane, not
knowing between right and wrong)
3.
in deciding upon the punishment to inflict.
Note: this goes to prove that law needs, in order to enjoy full authority, to be
buttressed by moral convictions of the community law and morality are
interrelated.
VI.
Conclusion: Three main attitudes, which may be adopted towards
the possibility of divergence between laws and morals.
1.
law and morals must necessarily coincide whether because:
(a)
the moral law dictates the actual content of human law (Hebrews
or Calvanist theocracies) this leads to the proposition that in
effect, only the moral law is valid and nothing that contradicts the
moral law can be binding.
(b)
because morality is itself merely what the law lays down.
This
idea is propounded by:
(1)
Hobbes there is moral duty to obey the law; morality means
nothing more than obeying the law
(2)
Hegel theory of moral superiority of the state over
individual thus individual can claim no higher right than to
obey the law of the state.
2.
to recognize than man-made laws and the moral law each enjoys a
realm of its own but moral law is a higher law and thus provides a
touch stone for the validity of merely man-made laws. Conflicts need
to be resolved in favor of moral laws (natural law theory).
Note: this may be said to be a matter which must be left between God and the
unjust ruler thus it is still the citizens duty to obey the law.
3.
There is the approach which treats the autonomy of each of the
spheres of law and morality and exclusive so that neither can resolve
questions of validity save in its own sphere (known as legal positivism)
(a)
validity of rules depend solely on legal criteria just as moral
validity can be applied in relation to a system of morality.
(b)
Those who support this view take a pragmatic view of moral law,
basing it on principles such as utility, expediency, tradition or
custom
(c)
Any conflict between the two cannot impugn the validity of man-
(d)
1.
2.
Note: Principles guiding legal regulation must include moral judgments. However,
even if moral judgments infuses determinations of harms, it doesnt follow that legal
rules enforce reality because there are moral evils that of not include harms to
others which must not be regulated by law.
II.
Legal requirements to perform acts that benefit others (do you have a duty
to rescue others?)
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A.
Performing acts that would benefit others is a moral duty yet, people may
abandon this moral duty and yet do not incur criminal or civil consequences
(no legal duty).
B.
Man has no legal duty to perform acts that is benefiting to others because
law should not enforce morality (unconvincing according to greenwalt).
In morality, there is big difference between act and omission, not so with
law.
People have general duties to act for the benefit of the public (pay taxes,
testify etc); there is not doubt then that people are required tom act to
avoid harm and to contribute to the common welfare.
C.
Those who support the idea of liability believe:
1.
others may do the job
2.
the need to help others is too vague
3.
such duty imposes inappropriately in the autonomy citizens
D.
Views on this problem:
1.
Consequentialist perspective --, these problems are matter of degree:
there is legal duty to help if it has only slight imposition to ones
projects.
2.
Deontological perspective Moral duty to help exist provided that it is
imposed by the law (if there is legal duty).
Ergo:
imposing duties are unwise, but it involved no breach of any defensible
principle that law should not enforce morality.
III.
requirements to refrain from acts that cause indirect har to others
On Liberty -- Mill wrote that the only purpose for which power can be rightfully
exercised over any member of the state, against his will, it to prevent harm to
-8-
others because when people harm others, this affects others through their
sympathy and interest.
When an action will certainly cause harms to others, such action shall be
the basis of regulation.
Future harms
(a)
consequentialist restraint in the initial stage is more effective
(b)
non-consequentialist man has right to liberty thus people should
not be restricted just because others lack control and will end up
doing harm.
When there is risk that one will become a burden to the society:
(a)
consequentialist: value of liberty might somehow be weighed
against likely cost
III.
Requirement to refrain from actions that hurt oneself.
A.
Mill supports non-restriction because a persons own good, wither
physical or moral is not sufficient warrant for society to exercise power
over him. In all personal conducts, his independence is absolute.
VII.
I.
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Ambiguity in the word natural (natural because: 1) derived from human reason,
2) accessible to out natural faculties or 3) derived or expressed in nature or 4)
combination of the 3)
B.
Early Church Writers
Source of higher standard is the divine being who actively intervenes in human
affairs
Aquinas
Four different kinds of law: eternal law, natural law, divine law, human positive
law
Derivation aspects
(a)
sometimes natural law dictates what the positive law should be
(like logical deduction)
(b)
natural law leaves room fro human choice (derivation is through
determining general principles derivation in the sense of making
specific or concrete)
Unjust laws failure with respect to any of the criteria; citizens have no
obligation to obey these laws. (unjust law in not law)
-9-
To say that unjust laws must not be obeyed because they are not laws in their
fullest sense is controversial: there are often reasons for obeying unjust laws:
(a)
if the law is part of a generally just legal system
(b)
public disobedience of the law might undermine the system
**Aquinas citizens are not bound to follow unjust laws if the law can be
resited without scandal or greater harm.
C.
D.
A higher law against which actions of nations, law makers could be judged.
Separation of natural law from the divine being (already evident in the writings
of Gregory of Remini)
1.
2.
3.
4.
5.
II.
First Level: There are a number of distinct but equally valuable intrinsic goods
(that is things one values for their own sake) = basic goods
a)
life (or health)
b)
knowledge
c)
play
d)
aesthetic experience
e)
sociability
f)
practical reasonableness
g)
religion
Second Level: Because there are variety of basic goods, with no hierarchy or
priority among them, there must be principles to guide choice when alternative
courses of conduct promote different goods (difference of Finnis with
utilitarianism. Utilitarian believe that all goods can be compare according to
their value in a single unit ex, in promoting happiness)
Morality then offers a basis for rejecting certain available choices; one choice
would remain (differ again with utilitarians: they talk of the best choice)
The move from the basic goods to moral choices occurs through a series of
intermediate
principles
(a.k.a
BASIC
REQUIREMENT
OF
PRACTICAL
REASONABLENESS)
Intermediate principles:
end never justifies the means (where the chosen means entails intending
to harm a basic good)
one should forma rational plan of life
have no arbitrary preference among persons
foster common good of the community
have no arbitrary preference among the basic goods.
Law enters as a way of 1) affecting some goods and making it easier to obtain
goods
Persons have obligation to obey just laws (like Aquinas); laws which are unjust
are not law in fullest sense of the term, one has no obligation to comply.
Modern Natural Law
A.
Fuller no sharp
the
proper
understanding
of
law
as
social
B.
1.
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2.
3.
4.
5.
6.
7.
8.
- 10 -
of
legal
LEGAL POSITIVISM
Coleman and Leiter
I.
II.
A.
H.L.A. Hart
(b)
B.
Distinctions:
(a)
Conditions of legality (or legal validity)
(b)
Meaning of a valid legal rule
He does not claim that the validity of legal principles depends on their
morality, but he believes that in interpreting the meaning of valid legal
rules it is often necessary to consult moral principles.
recognition
want to be slaves of words. Our aim is to understand society and its
Laws
Expands Liberty
Liberty limiting
institutions.
II.
1.
Criteria of legality
a.
restrictive construal- (Raz) it can never be a criterion of legal
validity that a norm possess moral value, it must be some social
fact (ex. Source: legislature)
b.
inclusive construal- incorporationism, positivism is committed
to 2 weaker claims:
i.
not necessary that in all legal systems that for a norm to
be
a
legal
norm,
it
must
possess
moral
value
(Coleman:Negative Positivism)
ii.
what norms count as legal norms is a matter of social
convention (can include convention/agreement among
relevant official to make the moral value of a norm a
condition of its legal validity
Note:
Even if there may be an overlap between morality and law, it does not violate the
separability thesis because thesis involves only a claim about the conditions of legal
validity.
2.
A practical authority is a person or institution whose directives provide
individuals with a reason for acting. (in compliance thereof)
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*in order to be law, a norm must be required by morality. Morality has authority in
- 11 -
the sense that the fact that a norm is a requirement of morality gives agents a
reason to comply with it. If morality has authority, and legal norms are necessarily
moral, then the law has authority too. Norms are the compelling reasons why
agents follow the law, so if norms are required for the authority of morality, and
norms presupposes the authoirty of the law, then if morality has authority, so is
law..so its like the norms are the requirements for authority of law and morality.
*For law to be authoritative, it must provide citizens with a reason for acting that
they would not otherwise have. If all legal requirements are moral requirements,
then the fact that a norm is a norm of law does not provide citizens with an
additional reason for acting. (its like not giving any reason at all because if laws and
morals are same, then what pushes one person to follow morality will be the same
reason he would use to follow law.) then it would fail to account for the authority of
law.
IV. Positivism: Austin v. Hart
A.
John Austin
B.
A.
B.
C.
D.
Hart
A.
Difference between
B.
C.
D.
E.
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- 12 -
F.
8.
A.
1.
2.
3.
4.
B.
C.
1.
2.
3.
4.
A.
1.
2.
Judicial Discretion
Incorporationism
legality
and
the legality of moral norms is not a function of their morality, but their
validity under the rule of recognition
A.
1.
the rule of recognition asserts that certain norms are law provided they
meet the demands of justice.
Incorporationism depends on a rule of recognition incorporating morality
into law.
Dworkin
(a)
rule of recognition that incorporates morality into law cannot be a
social rule, which requires a pattern of convergent behavior.
(b)
denies that legal positivists can be incorporationists. Why?
(1)
(2)
(3)
reference
to
moral
(4)
(5)
B.
Coleman
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- 13 -
the
10. Razs
authority
A.
theory
of
ruled out Austins sanctions and Harts term of the internal point of view
C.
Joseph Raz
reason is the right reason that applies to us in settling the issue of what
we ought to do.
Hart- sanctions do not adequately explain the claim that law makes to
being a practical authority, a claim whose truth or falsity would not hang on
whether particular legal directives were backed by threats.
D.
Relationship between the reasons law supplies and those that already
apply:
1.
The reason law applies might be generally unrelated to the demands of
right reason (Hart and Austin)
2.
They might conflict with the demands of right reason
E.
if laws reason are in conflict, it would not be rational for individuals to act
on the basis of laws reason
f merely affirms, it does not provide us with a reason for acting different
F.
Normal justification thesis: in order for law to be a practical authority, it
must be the case that for each agent for whom law is an authority, that
agent would be more fully or satisfactorily comply with the demands of
right reason that apply to him by acting on the basis of the reasons law
supplies he would do otherwise.
How can one do better following the demands of right reason provided by
law instead of following his own right reason?
(a)
Coordination function
NOTE: The claim to legal authority is based on the thought that the reasons law
provides replace the reasons that otherwise apply to us because acting on the
former will enable us more fully to comply with the demands of the latter than we
will by acting on the basis of them directly. However, there are areas in which we
have expertise, and law commits mistakes, laws authority therefore will be
incomplete at best.
11. Incorporationism
authority
and
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In determining whether a norm is a valid law, one would look into the
underlying justificatory reasons, then it would be incompatible with treating
the law as an authority, because to treat law as an authority, it so forego
assessing the justificatory reasons. Authority presupposes foregoing
precisely the sort of inquiry incorporationism appears to invite. But that
really does not provide us the reasons that justify the law.
Argument against incorporationism: of the law is to be an authority, the
rule of recognition must serve an identification and not merely a validation
function.
o
It must serve an identification function: Why? Law is an authority
only if individuals acting on the basis of it will do better than
following their own right reason. For individuals to act on the basis
of laws directives, they have to be aware of what the law is, and
what it requires of them. It must make the law accessible to
them. It must fulfill the epistemic function of identifying what the
law is. However, moral reasons on identifying the rule as law need
not coincide with its justification.
o
If moral principles are essential to the practice by which ordinary
citizens come to recognize which of the communitys norm count
as binding law, then the rule of recognition will not discharge its
epistemic function.
Hart- grants the centrality of the rule of recognitions epistemic function
and that incorporating morality into law makes it more uncertain.
The
exclusion of certainty is not the goal for rules of recognition. There should
be a margin for uncertainty, so that an informed judicial decision can be
made, and so that its decision can be identified and rationally settled.
Positivists might argue that Raz is mistaken to think that authority of law
requires that there be no uncertainty in corporationism.
Other incorporationists questions whether incorporationism really renders
law uncertain. (coleman)
Argument for authority depends on citizens to identify and act upon the law
that applies to them.. this authority may or may not be the rule of
recognition. If citizens do not use the rule of recognition, it must be the
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I.
II.
B.
C.
conveys the
is fair.
corresponds
of the social
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(1)
(2)
(3)
D.
E.
G.
Principles of justice are chosen behind said veil of ignorance, thus, such
principles are the result of fair agreement or bargain.
The original position is the appropriate status quo thus the fundamental
agreements reached in it are fair.
Steps in formation of justice as fairness:
(a) It begins with the choice of the first principles of conception of
justice.
(b) Choosing a constitution and legislature to enact the laws
It is presumed that these steps are in accordance with the original
agreements initially agreed upon.
The general recognition of the fact that everyone views their arrangements
as meeting the stipulations and their choice of principles would provide the
basis of public acceptance of the corresponding principles of justice.
In this sense, the members of the society are autonomous and the
obligations they recognize are self imposed.
F.
Principle of utility requires lesser life prospects for some simply for the sake
of a greater good enjoyed by other
Each desires to protect his own interest, no one will agree to an enduring
loss for himself in order to bring about a greater net balance of
satisfaction.
Two principles persons may choose in the initial situation:
(a) Equality in the assignment of basic rights and duties
(b) Social and Economic inequalities, are just only if they result in
compensating the benefits for everyone, especially for the least
- 15 -
H.
II.
J.
I.
II.
III.
I.
The original position is the appropriate initial status quo, which ensures
that the fundamental agreements reached in it are fair.
How to arrive at the veil of ignorance: one excludes the knowledge and
contingencies, which sets men at odds and allowed them too be guided by
their prejudices.
Parties in the original position are equal: all have the same rights in the
procedure for choosing principles
Equality between human beings as moral persons as creatures having a
conception of their good and capable of a sense of justice.
Reflective equilibrium:
an equilibrium wherein our principles of
judgments and the premises of their derivation (conditions) coincide.
The original position represents the attempt to accommodate within one
scheme both reasonable philosophical conditions on principles as well as
our considered judgments of justice.
Conditions embodied in the original positions are ones that we accept.
These principles pre-suppose that the social structure can be divided into
two or more or less distinct parts.
basic liberties that are required to be equal
those that specify and establish
social and economic inequalities applies
to the distribution of income and wealth and to the design of organizations
that use different kinds of authorities or chains of command.
While distribution need not be equal, it must be accessible to all and must
be to everyones advantage.
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These principles are to be arranged in a serial order with the first principle
prior to the second. This ordering means that a departure in the liberties
required by the first principle cannot be justified by greater social and
economic advantages.
Distribution of wealth and income, and the hierarchies of authority must be
consistent with both the liberties of equal citizenship and equality of
opportunity.
Conception of Justice based on the two principles:
All social values liberty and opportunity, income and wealth, and the bases of
self-respect are to be distributed equally unless an unequal distribution of any,
or all of these values is to everyones advantage.
What is injustice? Injustice is inequality that are not to the benefit of all.
IV.
It does not require the society to try to even our handicaps as if all were
expected to compete on a fair basis in the same race.
We are led to this principle of we wish to set up the social system so that
no one gains or loses from his arbitrary place in the distribution of natural
asses or his initial position in the society without giving or receiving
compensating advantages in return.
Final Notes:
In justice and fairness, men agree to share one anothers fate
Institutions which satisfy these two principles (which is a fair way of meeting the
arbitrariness of fortune) are just.
A.
B.
Freedom
(a) Too often, it is an absence of external restrictions on my native capacity for
self-determination
(b) Too seldom, it is recognized that the greatest obstacle to freedom is within
me, that, quite apart from what other do, I need more than free will to be
free.
Free act is one for which I am responsible (it is an act which I am the
source, ergo, freedom is identical with my selfhood; with my capacity to
act on my own.
Bu the fact that I am responsible for what I do does not mean that my
actions are responsible actions
Ambiguity in the Notion of responsibility
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- 17 -
I.
What is freedom?
Determinist
1.
Man is a mere
2.
A.
B.
(a)
(b)
Platonic Refutation of
the physical world.
Through his body, man
from the physical world
(c)
Skinner
sees
man
as
an
animal,
trainable
through
reinforcements.
As a human being, man can always refuse to follow the stimulus response
mechanism.
Such refusal can only be understood under the postulate of the existence
of freedom.
Libertarians (C.A Campbell and C.D. Broad)
Using the Kantian distinction, they supposed that in order to account for
C.
II.
The problem: RELATIVISM: there are many ways of conceiving man which
leads to different norms that determine mans choices.
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science of the spirit and to seek a theory of the essence of the
spirit as spirit.
(b)
Dewey the fundamental postulate of the discussion of freedom
is that isolation of any one factor, no matter how strong its
working at a given time, is fatal to understanding and to
intelligent action.
(c)
Existentialist freedom, refers to the condition of human
existence, rather than to characteristic of human nature.
(d)
Enlightenmentcry for absolute freedom.
Man should be free
from nature, fellowman, society and God.
Note: The Demands of Enlightenment can be divided into two Absolute Freedom
the terror. This division emphasizes the negative effects of the Enlightenment.
The enlightened demands for freedom eventually degenerated into an anarchy. Ex.
French revolutions attempt to rationalize even religious acts which resulted to
empty formalization of knowledge, without contents.
(e)
Karl Marx -- human liberation could not be expected to merely
descend from the sky, but must be achieved by transforming the
alienating conditions of human life by means of human labor.
- 18 -
III.
IV.
Karol Wojtyla
Instead of analyzing human being by means of class conflict, Wojtylas mind
attempted to solidify the inherent CLOSENESS between human beings.
Class struggle is not the vehicle for social transformation but SOLIDARITY
MOVEMENTS and PARTICIPATORY DEMOCRACIES.
Aim of Wojtylan political program is to simultaneously transform the individual
members and social structures from objective totalisms toward participatory
and communal membership.
In Wojtylas perspective: ALIENATION (like that of Marx) is the starting point in
understanding freedom.
But Marxs second premise that:
the only way to
attain liberation is through revolutionary overthrow of those who of not share in
the essence of man as homo-faber, shall be done away with
Man should now be treated in a more synoptic vision of his being as BEING.
(Being qua Being)
Liberation will bring about emancipating conditions of those who belong in one
particular class but to the whole community.
Instead of revolution as a means of negating alienation, the Wojtylan political
methodology would propose the POSITIVE AFFIRMATION of the human being
qua Being in terms of solidarity and participation.
In this set-up, opposition is still present because it is an authentic form of
participation.
In this set-up, no particular class will dominate, thus every human being is
called upon to participate in the process of liberation, each person has a unique
contribution to the common good of man, whole not necessarily being
individualistic.
Dignity of the human person is then protected since such dignity could be
located from the individuals participation with the common good.
Freedom is connected with mans being (The source of freedom is the being of
the human)
In treating man as a human being, his freedom is preserved because he is
allowed to exist, as he is not predetermined by essentialist doctrine.
How is freedom possible
How to find for freedom --- by participating in ones being: to be and to know
oneself.
Man chooses his values (example: a holy man tends to choose values of
holiness, wise men intends the values of rightness or wrongness).
But in
choosing these values, there are objective standards: depth, endurance,
divisibility and extension (Max Scheler)
Thus, a well-integrated human being prefers the value, which could lead to
Radical will of the good the bridge that connects the objective order of values
and the matrix of personality structure of human being. Human freedom is oriented
precisely by this will for the good.
Thus: Freedom is always intentional because it is always intending, reaching out
striving for the good.
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Except to the One true God, all other forms of exercising the act of choice are
all directed to finite goods which leads to CORRUPTION (absolute love for finite
goods). Ex. Love for power makes a tyrant murder for power.
For a man to keep his freedom, he must have an objective sense of justice.
Libraa balancing stem held by the must of justice, the root of the words
deliberate and equilibrate
V.
Logic:
Destructive dilemma between freedom and justice: can only happen if justice
is state in crude populist terms (human beings can be uniformed in one
essence; supposes that everyone is equal. But this is problematic equality
can become an ideal goal but never the starting point of social change) and
- 19 -
A.
B.
Introduction
Rhetoric of human rights is universal. A lot calls for the observance of human
rights, but in practice, the state continues refuse to giving such rights to its
citizens, of course except when applying for aid from the UN. But as soon as
the crisis is alleviated, the state return to its usual habits of violating human
rights.
Analysis and definition
The Rights of Man universal rights; also called as natural rights by Hegel;
abstract rights (abstract rights because all that person have to say for
themselves qua other person is that they are essentially different from each
other there are no ends or goods distinctive of the sense each has of himself
as a person).
Why term human rights is best:
(a)
it connects with the language of the charters, declarations and
conventions which inscribe rights as a principle of international
law. These rights referred to by these charters are Rights of the
citizens claim against their governments.
(b)
The term natural rights carry with it a distinct provenance
(transcendental, non-naturalistc, imprint of talk of natural law,
thus may be unattractive to some. Natural rights were deemed
natural because they were product of natural law.
Natural rights are sanctioned by natural law (Locke)
Positive rights vs. Critical rights (echoing H.L.A Hartss distinction between
positive and critical morality)
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(a)
C.
Hohfelds classification
(a)
(b)
(c)
(d)
- 20 -
(b)
General
rights
(unconditional
rights)
not
products
of
Note:
Characteristically, rights of non-interference are claimable both in rem
(against all and those who would agree against the individual) and in personam
(where specific individuals or agencies have duties of protection, prevention or care)
ges
rights was a Product of individualism
(each person having his own access
he idea of the person as the subject of
maker of moral claims.
n is to make claims of right and to
ect others as person
Question:
Justification of Rights
1.
Lockean Themes: Mode of Ownership
Locke offered the most straightforward argument for natural rights.
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- 21 -
2.
Mankind is Gods creation. We cannot act as his trustees unless our lives,
health, liberty and possessions are respected. We have a natural right to
these goods, subject to our respecting equivalent claims of others.
Natural right is a right asserted in accordance with natural law (Gods law).
Thus, we can claim against others that (negatively) they do not interfere
with our life in Gods service) and (positively) as parents, that they provide
us with the means of properly human life).
Natural law and natural rights are discernable by reason.
Locke tackles the hard problem of the right to private property through his
doctrine:
THESIS OF SELF-OWNERSHIP, which provides that every man
has a property in his own Person, nobody has a right to but himself.
This thesis that we naturally own ourselves is often used to legitimatize
slavery.
However, some would say that this right is inalienable, thus
slavery is unjustifiable.
It may be justified that the rights of persons can be derived from the fact
that he is the owner of himself.
Autonomy
H.L. Hart argued that that, if there are any moral rights at all, it follows that
there is at least one natural right, the equal right of all men to be free.
Interest
(a)
natural groups are those groups of which agents find themselves
to be members. (ex. family, state)
(b)
artificial groups enlist members on the basis of declared
prospectus; may be identified in terms of antecedent interest
which the members promote.
Note: Group membership forms as well as serves individual interests, even in the
case of those original interest is self-interest -- this is termed as Mediation of the
Particular through the Universal (Hegel).
E.
F.
II.
A.
B.
C.
B.
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A.
In this system, the best friend, is expected to turn himself in rather than
implicate his friend in his punishment.
The custom of friendship was given a legal edge and converted by the evil
power into means of forcing its will.
Russia
System of revenge: If a man kills another man, the brother will avenge his
brother, son, his father (vice versa), if no avenger, the murderer pays.
Visgoths
A person who kills another is expected to be handed over into the parents or
- 22 -
IV.
V.
In the early state, crimes have been invented in order to suit the laws
Latent purpose of law: punishment in the service and profit of the state, not
prevention or protection of persons, nit the healing of breach.
There were lots of laws made that were not necessary (ex. civil protection of
market place and highways). In joint family, clan or village, this would have
easily dealt with.
With an evolving state, the presence of the kings men
(usually referred to as bandits and predators who victimized many people)
would itself be a primary cause of disruption.
Laws became self-fulfilling prophesies because the laws and crimes which it
served were actually covariant of the evolving state.
The intention of the civil power (first civil laws) is epitomized in the sanctions
against homicide and suicide.
Primary Rules
human
beings
are
offenses against the state).
required to do or abstain
impose duties
VI.
Difference with Joint Family systems
concerns
actions
involving
physical
the
basic
goods:
the
Lex Talionis (law of revenge)
absolute fundamental of
In the proto
VII.
Secondary Rules
(thats why suicide and homicide are
type of rule which is in
sense
made it easier to deal with individuals,
parasitic/dependent upon
ic precondition for the growth of law
the first
confer powers, public or
private
provide
for
operations family village was a tort a private
which lead not merely to blood feud, not to be confused with
physical
movement
or
change,
but
to
the ever really held for primitive people.
crayon or variation of through retribution.
duties or obligations.
m Crimes of violence.
Have
to
do
wit he earth deity.
Thus, if a villager is
operatives
To
enforce
/vvverga 102504
the
himself.
t is protected by earth goddess.
basic state, the struggle was over the lives and labor of the people.
- 23 -
necessary in order for the classes with conflicting economic interest may not
annihilate themselves in a useless struggle. But as time passes, the supremacy
of state becomes more and more pronounced and later on becoming more
divorced from the state.
VIII.
II.
A fresh start
The simple model of law as the sovereigns coercive orders failed to reproduce
some of the salient feature of the legal system. Why?
1.
In all varieties of law, a criminal statue forbidding or enjoining actions
under penalty most resembles orders backed by threats (for one, there
is not continuing belief in the consequence of disobedience; order
backed by threats are only addressed to a particular person)
2.
There are other varieties of laws conferring legal powers to adjudicate
or legislate or create /vary legal relations which cannot be construed
as orders backed by threats
3.
There are legal rules which differ from orders in their mode of origin
because they are brought into being by anything analogous to explicit
prescription.
4.
The notion of law in terms of sovereign habitually obeyed failed to
account for the continuity of legislative authority characteristic of a
modern legal system.
Ancillary devices used in criticizing the conception of law as the sovereigns
coercive orders.
(a)
Notion of tacit orders have no application to the complex
actualities of a modern legal system.
Only applies to simpler
situations.
(b)
Treating power conferring rules as mere fragments of rules
imposing duties or treating rules as directed only to officials
distort the ways in which these are spoken of and actually used in
social life.
The failure is due to elements out of which the theory is constructed (ideas of
orders, obedience, habits, etc).
Types of rules
jurisprudence).
III.
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2.
Note: theorists like Austin, seeing perhaps the irrelevance of ones personal belief,
fears and motives if one has an obligations to do something, has defined this
notions in terms of Chance or Likelihood that a person having an obligation will
suffer punishment at the hand of others in the event of disobedience. Statements
of Obligations then are not psychological statements but PREDICTIONS or
ASSESTMENTS of incurring evils.
IV.
- 24 -
There are reasons for rejecting the claim that statement of obligations are
mere predictions of incurring evils.
1.
predictive interpretation obscures the fact that where rules exists,
deviation from them are not grounds for a prediction that hostile
reactions will follow or sanctions will be applied,
2.
if it were true that if a person has obligation them he was likely to
suffer in the event of disobedience, then this would be a contradiction
of the notion of obligation.
Note: in normal legal system, where sanctions are exacted for a high proportion of
offenses, an offender usually runs a risk of punishment, so the statement that a
In the combination of these two rules, there lies the law (key to science of
person has an obligation and the statement that he is likely to suffer for
disobedience will both be true together.
Obligation is not to be found in the gunman situation, though the simpler notion
of being obliged to do something may be present.
The statement that someone has or is under an obligation does indeed imply
the existence of rule. Why?
(a)
the existence of such rules makes certain behavior a standard
which is a proper background for such statement.
(b)
The distinctive function of such statement is to apply such a
general rule to a particular person by calling attention to the fact
that his case falls under it.
However, this is not always the case that where rules exist the standard of
behavior required by them is conceived of in terms of obligation. (example:
rules of etiquette or correct speech are rules but they are more than
convergent habits than behavior. They are rules that are followed but they are
not obligations)
V.
What makes rules obligations?
A.
Rules are imposing obligations when the general demand for conformity is
insistent and the social pressure brought to bear upon those who deviate
or threaten to deviate is great.
When sanctions are physical, these are rules that can be classified as primitive
or rudimentary forms of law.
The seriousness of social pressure behind the rules is the primary factor
determining whether they are though of as giving rise to obligations.
B.
They are necessary to the maintenance of social life (ex. those that restrict
free use of violence, rules which require honesty or truth or require
keeping of promises or what is to be done)
C.
The obligations and duties are thought of as characteristically involving
sacrifice of renunciation because the conduct required by these rules may,
while benefiting others, conflict with what the person who owed the duty
may wish to do.
Note: because of this, vinculum is created (a bond).
The first task is to know
whether there is a right. Rights and duties are only attuned if it is good: how do we
know if its good? Because of reason.
VI.
Internal and External Point of View
1.
internal point of view : The way a group assess its own behavior (I
have an obligation)
2.
external point of view the way rules function in the lives of certain
members of the group as seen by a non-member or those who reject
its rules and are only concerned with them when they have judged
that unpleasant consequence are likely to follow violation (I was
obliged to do it).
Note: the external observer would just give an account on how other members
of the group would follow the rules and he would observe that any deviations
by a member of the group can be a sign that hostility is likely to follow.
Violation of the rule for them is not merely a basis for the prediction that a
hostile reaction will follow but a reason for hostility.
VII.
Elements of Law
Primary Rules of Obligations (Customs): society without legislature, court
officials and the only means of control is that general attitude of the group
However, these rules may prove defective in other conditions. What are
these defects?
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(a)
Uncertainty the rules which the group lives will not form a
system but will simply be a set of separate standard without
identifying common mark, thus,
(b)
Static character of the rules the only mode of change in the
rules known to such a society will be a slow process of growth.
(c)
Inefficiency in diffusing social pressure by which rules are
maintained. Lack of final and authoritative determinations.
In early law societies, they may be more than that an authoritative list
or text of the rules found in written document, carved in public
monument (were reduction to writing of unwritten rules).
(b)
Rules of change: a rule that which empowers an individual or body
of persons to introduce new primary rules for the conduct of life in
the group.
(c)
Rules of Adjudication to empower individuals make authoritative
determinations; do not impose duties but confer judicial powers
and a special status.
Note: these secondary rules shall provide the centralized official sanction of
the system.
Conclusion:
under a simple regime of primary rules, the internal point of
view is manifested in its simplest form as the basis of criticism, justification
of demands for conformity, social pressure and punishment. With the
addition of the secondary rules, the range of what is said and done from the
internal point of view is extended and diversified.
Concepts like validity,
jurisdiction, legal powers etc are created.
THE FOUNDATIONS OF LEGAL SYSTEM
H.L.A. Hart
I.
A.
- 25 -
no one.
Sufficient condition of the existence of law (according to this theory)
But this theory is unable to take into account some of the salient features of
modern municipal systems (see notes on sovereign and subject)
But it does contain some important aspects of law which can be assessed in
terms of more complex social situation where secondary rule of recognition is
accepted and used for identification of primary rules of obligation (this
situations, a.k.a foundations of legal system)
B.
Rule of recognition
When accepted, both private and officials are provided with authoritative
criteria for identifying primary rules of obligation
With the rule of recognition, officials or some private persons will be able to
identify these criteria.
In modern systems, the criteria for identifying law are complex thus, ranking of
these criteria in an order of relative subordination and primacy is done in order
to avoid conflict (common law is subordinate to a statute)
C.
Subordination and Derivation of Criterion
In our own system, custom and precedent are subordinate to legislations since
customary and common law are deprived of their status as law by statute
They owe their status of law from the acceptance of rule of recognition.
Rule of recognition is not state but its existence, shown in the way in which
particular rules are identified either by courts, officials, etc.
Related to efficacy: meant that the fact that a rule of law which requires
certain behavior is obeyed more often than not.
Efficacy and validity do not have connection unless the rule of recognition
of the system includes among its criteria that no rule is to count as a rule
of the system if it is not efficacious (rule of obsolescene).
The rule of recognition providing the criteria by which the validity of other
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F.
H.
A.
such
sanctions
that
emanates
from
superhuman
authority
(has
transcendental character)
- 26 -
2.
re
IV.
Collective Security
(imprisonment)
Collective Responsibility
Individual
responsibility
These are sanctions of criminal law
(collective
thinking
three
best
which is the law
friends of diamond
Statements made by legal science, which is not a legal authority, hence not
See diamonds article for
Right is defined as the
competent to issue legal norms prescribing or permitting human behavior.
example
(system
of
capacity
to
have
the
Legal norm:
statements to the effect that under certain conditions, a
revenge/blood revenge)
legal
possibility
of B.
certain consequence, namely, sanctions, ought to take place
instituting a lawsuit and
Issued by legal authorities
deals with execution of
sanctions
C.
Relation of legal norm and delict
Not cause and effect; not a law of nature (meaning: it does not follow that
when a delict occurs, a sanction will necessarily take place)
When a delict is committed, a sanction ought to be applied OR if delict is
committed, the application of the sanction is legal (means that there is only a
crime if there is a law sanctioning it)
Crimes/delict is actually a creation of the law (contention of diamond) ex. the
case of rape. In primitive societies, rape is not a crime punishable by a law.
Rape only became a crime when a law was made prohibiting it and imposing
sanctions on it.
Delict
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- 27 -
V.
VI.
A.
B.
Note: the difference between an obligation and responsibility manifest itself in the
fact the an individual can be obliged only to behave in a certain way, to his own
behavior but that an individual cannot be obliged that another individual shall
behave in a certain way to the behavior of another.
An individual can be responsible not only for his own behavior but also for the
behavior of another individual.
Exists in the case of blood revenge which is directed not only against the
murderer but also against all the members of his family.
A.
B.
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VIII.
Force and Monopoly of the Community
- 28 -
2.
IX.
Principle of self help is eliminated if the legal order reserves the execution of
the sanction to a special organ, that is, if the force monopoly of the community
is centralized
Two stages in the development of collective security:
1.
characterized by the fact that the principle of self-help prevails, but the
members of the community are legally obliged to assist the victim of a
delict
2.
characterized by the fact that the execution of the sanction is reserved
to a central organ of the community and that means that a centralized
force of the community is established.
Collective security is more effective if the force monopoly of the community is
centralized than if it is decentralized.
Defects of decentralized force monopoly:
(a)
There is no authority, different form, independent of the parties
concerned competent to ascertain in a concrete case the delict
that has been committed (since there is no agreement between
parties, it is doubtful whether the coercive act performed as a
reaction to the delict is really sanction)
(b)
If the individual or group of individuals authorized by law to carry
out the sanction is not more powerful than the delinquent, the
sanction would not be effectively executed.
Ergo: the concept of law is reserved only for a coercive order and no true
law exists as long as the principle of self help prevails because the
establishment of a centralized system of collective security is an essential
requisite of law.
Note: Kelsen does not accept this idea because he believes that social order is
considered as law even if it establishes only a decentralized force monopoly of the
community (where the principle of self-help prevails)
Why?
X.
XI.
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INTERNATIONAL LAW
I.
Definition
International law is true law if the coercive acts of states, the forcible
interference of a state in the sphere of interests of another state is permitted
only as a sanction against a delict.
II.
International delicts
Conduct of states, which is illegal, contrary to international law.
It follows that international law is a system of norms, which prescribe or permit
a certain conduct for states. Question: are there sanctions for these delicts?
- 29 -
Sanctions of International Law can only be enforced by individual states and not
by special organs (decentralization).
War
Note: legality or illegality of war depends on whether it is waged by one state
against another unilaterally or it is just a counter war. A war (aggressive war)
waged by one against another state is said to be illegal. A counter war is legal
(it is a sanction).
I.
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A.
In the past, all nations seem to be in a continuous state of war where peace
was the exception and war the rule a fact rationalized by philosophers:
(a)
Hobbes the natural state of the society is the war of all against
all; the state of nature is solitary, poor, nasty, brutish and
short; man is a wolf man (homo homini lupus a famous formula
of A roman poet Plautus).
(b)
Han Fei Tzu man is evil by nature, only brute force can restrain
the masses
(c)
Machiavelli and Spinoza royal absolutism is the only way to end
mans evil nature.
Rousseu rejected this view, affirming the natural goodness of man before he is
corrupted by society
Rise and effect of Religious militarism
The glorification of the warrior in the past has degenerated the noble profession
of defending ones country into militarism.
This phenomenon has provided occasion for nations to turn to polytheism an
idolatry in their search for supernatural being that could assist them in thir
struggle against other nations.
Judaism, Christianity and Islam have sustained the original monotheism but
even these religions fell victim to fanaticism that led them into war against each
other and even members of their own faith.
Ex.
(a)
the thirty years war the climax of the war of religion pitting
Catholics, Calvinist, Lutherans and orthodox against each other.
(b)
the Muslim Jihad regarded as self-defense; a combination of religious
fanaticism and political and economic greed under the dignified
umbrella of nationalism and racism (originally, Jihad for Islam is to be
primarily waged wither for protecting the interest of the oppressed and
the weak or to defend oneself against aggression)
Edict of Nantes and the Treaty of Westphalia formation of nations states; each
religious groups were kept in their own territory (cuius regio eius religio).
The partition of religions by territory was also the result of the Enlightenment.
These produced religious indifferentism : all religions are the same and should
be tolerated as long as they do not fall prey to dogmatism or cause social
disturbance
- 30 -
II.
Efforts in the past ended in failure precisely because the means employed were
violent. If violence was used to stop violence, it will generate more violence.
The only way to achieve peace is to abstain from violence
The papal discourse combated directly the core of Marxist ideology : the
suppression of individual personal freedom and the total absorption of man into
the community. The is why Marxism is unable to recognize the transcendence of
human person.
Freedom is indispensable for peace but not sufficient because it naturally entails
the risk of misuse, but a risk that must be taken for man to achieve the
common good
Common good is not the greatest goof for the greatest number but the good for
every man and the whole man.
TWO GREAT ENCYCICALS ON PEACE
Pacem Teris: by the natural law, every human being has the right to respect for
for every life is a vocation. By the unaided effort of his own intelligence and his
will each man can grow in humanity, can enhance his personal growth, can
become a person.
III.
Recent attempts to promote an Institution of peace
Francis
****Francisco de Vitoria precursor and the Father of International Law
Emphasize human rights as a condition for peace and order, an idea partially
reflected in the American declaration of Independence.
During these times, the old formula if you want peace, prepare for war was
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In Populorum Progression, it was said that DEVELOPMENT is the new name for
PEACE. Development is defined as the total promotion of man based on an
integral humanism
Development is the philosophical basis that can be accepted by all religions. It
is universal not secularist.
The existing inequalities among human beings are not supposed to be
adversarial or dialectical in the Hegelian-Marxist sense but complementary and
harmonizable.
Cooperation and solidarity are natural extension of the underlying unity of all
mankindshould not be confused with pacifism or peace at all costs or
irenecism of compromise at the expense of truth.
Only by channeling out aggressiveness toward ourselves in the struggle against
selfishness that we can really bring about peace.
catholic means universal in outlook, at the same time, involved in the reality
of actual peoples and communities
Christianity, with its radical natural law affirmation of the fundamental equality
and dignity of all men, fermented social change (especially in the institution of
slavery that was espoused by Aristotle)
The idea of slavery (and forced labor) made war necessary in order to conquer
new land and new slaves.
Slavery made mercantilism and static economy the prevailing doctrines.
These ideas were refuted by de Vitoria
However Christianity was not able to flourish initially due to universal
acceptance of the Aristotelian fallacy.
It commenced a process of cultural
transformation, gradually humanizing slavery war, poverty etc. by favoring the
introduction of practices and laws to this effect.
Christianity always defended and protected the dignity of man and his labor.
Revolutionary ideas ushered in, not due to Lockes liberal reaction to Hobbes
th
absolutism but from the work of 16 century Spanish economist like de Vitoria.
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B.
C.
D.
Conclusion:
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4 NATURAL LAW existed before Catholicism and its principles are rooted in nature
and knowable to reason (SOPHOCLES ANTIGONEthere is a higher law alive and
forever). Case of Bonham: practicing medicine without license, EDWARD COKE said
that parliament has no right punishing the physician by saying that when parliament
is against the common right, common law must control it.
CALVIN CASE: lex
aetarna or law of nature is infused into ones heat for preservation and direction..
WILLIAM BLACKSTONE: WILL OF THE MAKER, LAW OF NATURE. GEORGE MASON
all acts of legislature contrary to natural right and justice are void)
5 Modern jurisprudence: enlightenment; LAWS are man made (due to social
contract)
The jurisprudence of enlightenment is an individualist utilitarian
positivism: no room for institutions, family and other social groups between the
individual and the state (merely an exercise of WILL and not REASON) ex. ROE vs.
WADE; CRUZAN vs. DIRECTOR, MISSOURI where unborn and dying can be deprived
rights.
6 4 Aquinas: LAW is an ordinance of reason for the common good.
Eternal Law: rational orderliness of the universe; the divine reasons conception of
things
Natural Law: the participation of the rational orderliness of the universe in the
rational creature; because of this, we discern what is good and evil.
***MORAL VIRTUES: matters that are ordered to GOD as their end
MANS BASIC INCLINATIONS: to seek the good (highest Good: eternal happiness
with God); preserve himself in existence preserve the speciesunite sexually: live
in the community with other men: to us his intellect and will.
HUMAN LAWparticular determinations devised by human reason:
DIVINE LAW law given by God (because we are not perfect)
*** for enlightenment, they organize the society as if God do not exist.
ED/NH
Put a line
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BE DERIVED FROM CONCLUSION OR DETERMINATION (law of nature states that
evil doer must be punished)
FUNCTIONS OF NATURAL LAW: constructive (natural law as a guide to promote the
common good) and protective (natural law provides a shield against laws that
violate the natural law
9 Enlightenment, the purpose of law is to protect individual rights: greatest good for
the greatest number FOR AQUINAS, there is a common good more than merely the
total of individual good thus HUMAN law cannot be directed merely for private
welfare; laws should be made to suit the majority instances. COMMON GOOD is the
justification of CAPITAL PUNISHMENT (common good is better than the particular
good of One person. (COMMON GOD: the sum of conditions of social life which allow
social groups and their individual members relatively thorough and ready access to
their own fulfillment.
10 The rational plan of divine providence demands that other creature be ruled by
rational creatures. Animals dont have rights. Man is a person because he is an end
to himself and not used for perfection of other beings.
11 Aquinas prefers monarchy the rule of one man is more useful than many for
achievement of unity of peace.
12 unjust law is not a law at all. A law can be unjust by: being contrary to human
good and opposed to Divine good. But it doest mean that it will not be followed,
when the law is hurtful to the general welfare, it should not be observed.
13
political absolutism or autocracy; Political/philosophical relativism (a way of
thinking that there are no absolutes): democracy. The purpose of human law is to
lead men in virtue not suddenly but gradually if not, greater evils will be produced.
14 human law cannot cover the entire field of virtue and vice
15 Before resorting to interpretation, original intent of the constitution must be
discovered (Mac Lelan)
16 provisions of the constitution have natural law content
17 judges can use natural law if the law is unjust (burdens are imposed unequally)
and void when the conflict between law or precedent and justice is intolerable or
unendurable.
18 universal skeptism is absurd; one who says we can never be certain of things
contradict himself.. I think therefore I am, cognito ergo sum. Those who say
otherwise have no ultimate explanation of the meaning of life.
19 the object of practical reason is good. This principle is self evident. We have
active intellect whose sole work is to throw light on the sensible image or phantasm
to make the universal stand out from the particular.
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