WDW300 January 26 2012.docx

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19 Apr 2012
Lecture 3 - January 26, 2012
1:40 PM
Locke and Rousseau on Legitimate Public Order
Review of Hobbes
Hobbes is limiting authority over us - How?
-no right to revolution, cannot overthrow sovereign
-takes political authority and right to punish away from everyone except the government e.g. husband
cannot punish wife, bishops punished under secular law rather than ecclesiastical
-holding right to punishment and judging; denouncing ecclesiastical powers
Hobbes gives subjects rights - How?
-reflecting them through the government; laying down rights for protection of new civil rights; self
preservation, property
-state of nature right; self-preservation
-a paradox? Primitive rights, limitation on punishment?
Hobbes the politician vs. Hobbes the theorist
-radically modern
Review of Locke - Rights and Punishment in SON
-Punishment in the SON, people have the executive right to punish
-restraint and deterrence; retributive reason and also example for public are part of executive right
Role of magistrate in society
-power to implement laws
Limitations on magistrate, connection to Locke's political ideas
-although state cannot take reparations of the crime
-native people are the example of those in a state of nature; but they are not in a state of war even
though they are not under civil society
-risk of no judge in state of nature is danger of escalation when no impartial judge is available to solve
Why repressive monarchy is wrong?
-king has power to judge his own case, with no one controlling over whether he does his job properly in
reflection of the subject's rights and needs
-one would not consent to an arrangement in which the monarch has absolute power
-Locke's idea of the limits of justice are similar to his limits on political authority
Locke on Authority and Property
-community vs. state; consent to be governed, protect already existing rights
-how governments should be structured; division of power
-cannot be justified by the origin of the monarchy; authority must have democratic element of majority
-state is not a sacred thing; free to leave and create a new state whenever; state is only in power so long
as citizens under it are consenting to its power
Features of Legitimate Authority
Consent - tacit and express; tacit by just living under authority, express e.g. voting
Examples - patriation of the constitution 1982 Canada, private property on native reserves
-majority rule and settled laws give authority to government
How does this relate to the Criminal Justice System
-jury nullification
-criminal code being settled law, decided by impartial arbitrator in consent with the people
Role of Property
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