Recitation Notes

03 March 2021
Legal Philosophy
#2
1. Can you imagine a world/society without laws?
2. Why do we obey the law? (Youtube Video)
o Not because the law is good but because we are not able to fight
the government
o Mao Zedong – political power = force
o All actions are regulated by law
o I would be arrested if I don’t obey
o Binding force – brute force
§ Can we still say we have unconditional obligation to obey
the law?
§ Cannot be based on force but on authority as legitimate
power
§ If force only, conditional obligation. Cannot make good
citizens
§ Force alone makes smart criminals
o Rosseau
§ if people were born free, are they obliged to follow the law?
§ Constitutions are legitimate if passed by people in an
assembly
a. Apart from brute force, are there any reasons for us to obey the
law?
3. What is Law?
o Aquinas – Summa Theologica
 Recitation Notes
03 March 2021
Legal Philosophy
#2
§ Law is an ordinance of reason ordered towards the
common good, promulgated by him who has charge of the
community.
o Sanchez Roman
§ Law in its specific and concrete sense is a rule of conduct,
just, obligatory, formulated by legitimate power for
common observance and benefit.
4. Thomas Jefferson
o He drafted declaration of independence
o Life, Liberty and Pursuit of Happiness
o Thomas Hobbes
§ Leviathan. “The life without rule of law is the life of every
man against every man which is solitary, dull, brutish,
nasty and short.
5. Aristotle
o Law enhances mans stature as a moral rational being
§ Rights come with responsibly. Individuals must act in a
manner which preserves basic rights without infringing
upon the rights of others
§ “He who has the power to take part in the deliberation of
judicial administration of a state is a citizen in the truest
sense”
6. Balancing Act
o Protecting minority rights in a majority system is a very difficult
concept which few nations have accomplished.
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03 March 2021
Legal Philosophy
#2
o Democracy – rule of majority
7. What is justice?
o Aristotle – giving everyone his due
o Just society
o Just rule
o Just government
o Liberty
o Freedom
o Rights
o Order
o Virtue
o Rationality
8. Great Civilizations Have Great Ideals
o The Greeks prized involvement in the political process
o This concept more than any is critical to the American Republic
9. Plato, The Republic
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03 March 2021
Legal Philosophy
#2

10. Democracy as an Archetype

11. Constitutionalism
o Does man create a good and just political structure?
o Does the political structure create good and just citizens?
12. Platonic Universalism and Aristotelian Reductionism
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03 March 2021
Legal Philosophy
#2
13. Origin of State
o Social Contract – somehow influenced by Plato and Aristotle

14. Democritus
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03 March 2021
Legal Philosophy
#2
15. Plato
o For Plato: best to worst: Aristo – Oli – Mon – Dem - Ty

16. Remember correct spelling of names of Philosophers

17. Thomas Hobbes 1558 – 1679
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03 March 2021
Legal Philosophy
#2

18. Why do you think there is a need to stress the rule of reason in a
democratic society?
19. John Locke 1632 – 1704

20. Jean Jacques Rousseau 1712 – 1788

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03 March 2021
Legal Philosophy
#2

21. Adam Smith 1723 -1790

o Laissez Faire

22. Important Questions

o Law v Freedom v Duty
o Law v Morality
o Law v Ethics
o Ethics v Morality, etc.
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03 March 2021
Legal Philosophy
#2
23. What is Law by Aquinas
o Law is an ordinance of reason ordered towards the common
good, promulgated by him who has charge of the community.
24. Four Elements of Law by Aquinas
o Reasonable ordinance (rationis ordinatio)
o For the common good (bonus communis)
o Promulgated
o By legitimate authority
25. Sanchez Roman Definition
o Law in its specific and concrete sense is a rule of conduct, just,
obligatory, formulated by legitimate power for common
observance and benefit.
26. Characteristics of Law according to the Sanchez Roman definition
o Rule of conduct
o Just and obligatory
o Promulgated by legitimate authority
o For common observance and benefit
27. Rule of Conduct
o For peaceful, harmonious relations among people so ends of
justice will prevail
28. Promulgated by legitimate authority
o Promulgate – publish / make known
o Art. 3 Civil Code – matter of public policy
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03 March 2021
Legal Philosophy
#2
29. Just and Obligatory
o Treatment of law should be equal regardless of social status, sex,
age, etc.
30. “Justice delayed is justice denied” – does it fall under just and
obligatory?
31. What is obligatory?
o Compliance. Otherwise there will be punishment / penalties
32. Common Observance and Benefit
o “If it does not apply to one, then none at all”
o Salus populi suprema lex
33. “What is legal must be moral and vice versa” Do you agree?
o What is legal may not necessarily be moral and vice versa
34. Why do we obey the law? Hart and Dowkin (Youtube Video)