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Lecture 5

Rule of Law - Lecture 5.docx

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University of Toronto St. George
Shawn Lehman

2350 Law and Society Tuesday October 8, 2013 Rule of Law in Liberal Systems 1. Locke’s Second Treatise of Government (1690) 2. Montesquieu’s Spirit of the Laws (1748) 3. The Federalist Papers (1787-88) by Madison, Hamilton and Jay ** Also found in work of pre-liberal thinker Thomas Hobbes** Thomas Hobbes  April 5, 1588 – December 4, 1679 (England)  Father was a clergyman  Educated at Oxford (uncle funded it)  Tutor for same family most of his life  Developed “social contract theory” o Method of justifying political principles via agreement made among suitably situated rational, free and equal persons o Conclusion: we ought to submit to the authority of an absolute – undivided and unlimited – sovereign power Hobbesian Thought  Human beings are inclined towards disorder, rivalry, discord and chaos  Under the social contract, all individuals cede their natural rights for the sake of protection  Order and Civility are the effect of subjection to the sovereign Hobbes, continued:  The sovereign is not subject to legal limitation o Creator of the law cannot be limited by the law (altered by their will) o Rejected separation of powers, as this would generate conflict and handicap ability to preserve social order Rule of Law & Liberal Systems  Political liberalism: human society should be organized in accordance with certain unchangeable and inviolable rights th E.g. Rights to life, liberty, and property  17 Century liberalism opposed absolute monarchies (i.e. The Hobbesian sovereign) o “Free” individuals could form a stable society through self-government o This government would be accorded the power to make, execute and apply laws for the public good 2350 Law and Society Tuesday October 8, 2013 Locke’s Thinking  Humans are guided by reason and governed by natural laws o Natural law: law is a reflection of the moral order  One must preserve oneself and not harm others in their enjoyment of health, liberty and possessions  Free to pursue our own vision of the good  Gov’t was to serve the people o Limited delegation of power, for limited purposes, revocable if government failed to meet its obligations  “Wherever law ends, tyranny begins” Locke’s View of the Separation of Powers  Separation of powers between legislature and the executive o But no independent judiciary or process of judicial review  Legislation is established by majority vote (only property holders)  Emphasis on the consensual nature of government Some Problems with Locke  Believed that non-propertied laboring class was lacking in reason  “Equality” was incompatible with civil society. Lead to: o “The protection of the industrious and rational against the lazy and quarrelsome is essential to public happiness or the common good”  Democracy was the consent of property holders Hobbes Locke State of Nature  The state of nature is a stat The state of nature is not of war. necessarily good or bad  No morality exists  It is chaotic  Everyone lives in a constant  Rationally recognize the need state of fear. for order, stability and  Because of this fear, no one is security really free Purpose of Government
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