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1. NATURAL LAW: Some authority for law: God, nature, mother earth... Law
pre-exists our determination of the law.
2. POSITIVISM: Law is merely a creation of human beings. What we say is the law, is the law.
-Law is the greatest good for the greatest number
-Majority vote for law is the law
-doesn't rely on religion for its basis
Naural Law: Bosnia is a good example. Rape, adultry, murder, etc isn't illegal in the areas where these alleged crimes were committed.
"NIHILISM AND THE END OF LAW" by P. Johnson:
Proposal: we have an agnostic culture. Most people don't believe in God.
People want to believe in such a god.
ISSUE: Who is to say what is bad, evil, against the law, etc. "The grand sez who"
LAW: the fundamental laws of our society: Criminal laws, Constitutional Laws, etc. Not just regulations & administrative laws.
1) Whether natural law exists & 2) What the natural law implies/consequences of the natural law.
Where do we go when majority can't agree on how to decide what's right
-if no agreement, then anything/everything can be rt/wrong. ie. Constitution is restrictive & people w/in boundaries are to decide what's rt/wrong
-Constitution provided for slavery
-Generally, people say Democracy should be let to work. Sometimes, though, Democracy should not be allowed to work b/c of consequences.
MODERN LIBERALISM: post-Renassaince. View is that people should be free to decide/democracy. Believes in Democracy, majority is law & law is right.
TREATISE ON LAW: By St. Thomas Aquinas:
A Natural Law Theorist:
1. Natural Law
2. Divine Law
3. Human Law
THE ESSENCE OF LAW:
1. Will/Free Will: that which helps us fulfill that which we choose.
2. Rule: Tells us what is good & bad & what we should do.
-Law is created by a reason & is in accord with reason & will measure what we should & shouldn't do.
2 Reason Decisions are hard to make:
1. Easy to be colored by passion
2. Details make decisions more difficult
Problems w/law, lead to disaster: Lon Fuller, THE MORALITY OF LAW
1. There must be rules
2. Failure to publish rules
3. Abuse of retrospective regulation/ex-post facto
4. Failure to make rules comprehensible
5. Contradictory rules
6. Making rules that are impossible to abide by
7. Frequent changes in rules
8. Failure to apply the rules as announced
1. Eternal Law: what we understand to come from Devine providence.
2. Natural Law: an imprint on us.
a. know by ruling & measuring
b. know by being ruled/measured
3. Human Law: a dictate of practical reason.
a. particular determinations, devised by human reason, are called human laws, provided the other essential conditions of law be obsrved.
4. Devine Law: the Old & New Testaments
***4 Reasons Why We Need Devine Law:
1. By law that man is directed how to perform his proper acts in view of his last end
2. Uncertainty of human judgment
3. Man can make laws in matters he's competent to judge (interior v. exterior), p21
4. Human law can't punish or forbid all evil deeds.
1. Eternal Law
2. Natural Law:
a. Murder is wrong (we'll agree on it) [moral decision]
-what is murder? (can't agree on that)
3. Human Law: [Practical]
a. Laws basaed on what we decide about Natural Law
b. Use reason to fulfill the Natural Law (levels of murder)
4. Devine Law:
a. God's participation in history
b. His word, His Commands (commandments)
(5. Science: [Speculative])
***You discover Natural Law & Eternal Law by looking to human nature.
-Look at experience & decide certain things.
The proper effect of law is to lead its subjects to their proper
virtue: virtue is that which makes
its subject good, it follows that the proper effect of law is to make those to whom it is given, good.
-May be changed by way of
1. Polygamy was ok, added that b/c of XYZ it is no longer acceptable
2. Capital punishment was accepted, Pope now says it is WRONG
3. All things in common was natural, now it is not natural to have all things in common. ie, no clothes b/f, having clothes now is needed.
b. Subtraction: 1.
WHAT IS NATURAL LAW?
-It is not a habit, though it appears to be. It is something
appointed by reason, it is not appointed by faith.
-It is not dependent on revelation for us to know it.
What are the precepts of natural law?
-An inclination to good in accordance w/nature
-An inclination to do things that pertain to him more specially, according to that nature which he has incommon w/other animals.
-An inclination to good, according to the natureof his reason, which nature is proper to him.
-Man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom has to live, and other such things regarding the above inclination.
Whether all acts of virtue are prescribed by natural law?
-All acts of virtue are prescribed by natural law.
-Many things are done virtuously, to which nature does not incline at first; but which, through the inquiry of reson, have been found by men to be conducive to well-living.
-The truth is virtuous action.
Whether the Natural Law is the same in all men?
-The natural law belongs those things to which a man in inclined naturally: to be inclined to act according to reason.
-Truth or rectitute is the same for all, and is equally known by all.
-In speculative matters truth is the same in all men, both as to principles and as to conclusions: although the truth is not known to all as regards the conclusions, but only as regards the principles which are COMMON NOTIONS.
-The Natural law, as to general principles, is the same for all.
-The natural law is the way to freedom.
Whether Natural Law can be changed?
1. By way of addition, in the sense that nothing hinders the natural law from being changed.
2. By way of subtraction, what previously was according to the natural law, ceases to be so.
Whether the law of nature can be abolished from the heart of man?
-The law writen in men's hearts is the natural law, therefore the natural law cannot be blotted out.
Whether it was useful for laws to be framed by men?
-Man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training.
-It is better that all things be regulated by law, than legt to be decided by judges.
Whether every human law is derived from the natural law?
-Every human law has just so much of the nature of law, as derived from the law of nature.
- If in any point it deflects from the law of nature, it is no longer a law but a perversion of law.
- Human law does't prescribe concerning all the acts of every virtue: but only in regard to those that are ordainable to the common good.
Whether human law binds a man in conscience?
-The like are acts of violence rather than laws; b/c as Augustine says "a law that isn't just, seems to be no law at all."
-Wherefore such laws don't bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his rt, according to Matth., "If a man...take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go w/him other 2"
-Laws may be unjust through being opposed to the Divine good.
Aristotle:, NICOMACHEAN ETHICS BOOK V:
Begins by discussing What is Virtue.
-Virtue is to make men good, which leads to happiness.
-The mean b/t extremes. It involves a high degree of prudence to know another thing.
-Example: Someone who has lots of money. Misers spend no money, Prodigles spend everything that they have. -In the middle lies the virtueous.
Reason for the laws:
-Aims at the common interest of the law or the leading/ruling class.
-Laws will aim at various things, the common interest or the interests of the ruling class.
What does he say about justice?
-Among/Between people must be order & respect in the relationship.
-Justice is a sort of proportion; for the profortion is not a propterty of numerical quantity only, but of quantity in general, proportion being equality of ratios & involving four terms at least.
What is the judges job?
-The judge is a medium b/t the litigants, to restore justice/equality.
2 kinds of Political Justice:
1. Rule of justice is natural that has the same validity everywhere & doesn't depend on our accepting it or not.
2. A rule is conventional that in the first instance may bve settled in one way or the other indifferently, though having once been settled it is not indifferent.
Intent is the way the ct looks at character. "Office will show a man"; for in office one is brought into relation w/others & becomes a member of a community.
-The family is the building block of socity, community,etc.
-No significant sene of the individual as having primacy.
The state is a creation of nature, and man is by nature a political animal. He who by nature and not by mere accident is w/o a state, is either above humanity or below it; he is the "Tribeless, lawless, hearthless one."
Marcus Tillius Cicero:
Believes that law is related to reason. Law is the highest reason, implanted in Nature, which commands what ought to be done & forbids the opposite.
Law is a natural force; it is the mind & reason of the intelligent man, the standard by which Justice & Injustice are measured.
MARCUS TULLIUS CICERO "Laws, Book I, II, III":
A diest of some type. Very strong notion of the state & the powers of
Rome. Rome is very interesting. Sense of eternity of Rome. Because of
citizens to that & what they look for in sociey is virtue.
-A natural law theorist.
-Vice is punished b/c harmful to person practicing the vice & b/c harmful to others.
-Virtue is good for you.
Victorian Morality doesn't really make any sense. Rules/laws are there to perfect you or to make you more human & perfect & to perpetuate a richer life.
Unjust laws are not laws at all.
Law is the distinction b/t things just & unjust, make in agreement w/that primal & most ancient of all things, Nature; and in conformity to Nature's standard are framed those human laws which inflict punishment upon the wicked but defend & protect the good.
Covenant b/t men. When a covenent is broken.
HOBBES, LEVIATHAN, Of the Naturall Condition of Mankind, as Concernin Their Felicity, and Misery:
Where there is no law there is no justice.
Notion of the Social Contract, where man is in a state of nature until
he agrees to join society. Through this he enters properl into a legal
society. (B/F this there really isn't).
-There is no way to tell a person to kill himself or have himself be killed. You can't ask someone to not protect themselves. -Defends the power of the soverign.
***There can happen no breach of Covenent on the part of the Soverign; and consequently non of his Subjects, by any pretence of forfeiture, can be freed from his Subjection.
Must maintain the integrity of social contract, which means maintaining & upholding the power of the Sovereign.
Law properly is the word of him that by rt has command over others. Law is a dictate of the authorrity, not of reason (as it is w/other philosophers).
Notion of consent...Consent to Sovereignty.
Notion of covenant of Contract: once enter, can't get out of it until death.
JOHN LOCKE: TWO TREATISES OF CIVIL GOVT BOOK II: An Essay Concerning The True Original, Extent & End of Civil Govt:
Similar to Hobbes w/state of Nature.
-Start w/freedom in Nature. Locke focuses on property. Join society.
Labour gave a rt to property.
Sovereinty isn't absolute. Must make rrules conformable to the laws of nature.
Hobbes says when you join society that you give up your sovereignty. -A strong monarchist.
Locke says that you do not give up your rt to oppose unjust laws. -End of govt is the good of mankind, that which is best for mankind.
***Social contract is a fairly new concept/philosophy.
JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS & LEGISLATION, Of the Principle of Utility:
2 Sovereign masters:
Sophisticated categories of pain & pleasure. Not just a raw-nerve test. Not just a sensory based system of pleasure & pain.
We have already had occassion to make mention for a momemt of the
consequences of an act:
-our own pleasure/for the pleasure of others. Measure pleasure/pain based on the consequences of the actions you chose to take.
Utilitarian: principle of utility:
-see how much pain/pleasure & that's how its measured.
Pleasures: not just sensory.
-critics say that it is too subjective & too hard to measure.
-no absolute principles.
JOHN STUART MILL ON LIBERTY:
1ST Amendment advocate. Only concerned w/harm to others.
No social contract.
OLIVER WENDELL HOLMES, JR. THE PATH OF THE LAW:
Common law is to develop as society develops. If a new situation arises
& has never been seen b/f. How does it fit in w/other principles the
judge has seen b/f.
-when you change a law, there are a lot of consequences. Must realize the moral impact.
-an incredible amt of unintended consequences.
Clearly thinks that there is no such thing as Natural Law.
Wrote opinion for BUCK v. BELL.
DAVIS v. BEASON:
He didn't practice polygamy, but he believed in it. He was precluded from voting in local political elections, etc. Ct determined that this polygomous religion was against mainstream religion. Such laws are crimes.
-Degrades women & debases man.
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