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Lecture 15

Philosophy 34-226 Lecture 15: Lectures 15-18 on Natural Laws

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Department
Philosophy
Course
34-226
Professor
Falconer
Semester
Winter

Description
Lecture 15-18 on Theories of Nature Law  Concept of Nature Law o Positive law is a law put forward by the state or authority ex. tax law, criminal law o Nature law is not made public o Unlike positive law, you cannot make up nature law. You DISCOVER nature law o Nature law has the connection between morality and legality are pretty much the same thing o Laws about developing virtue and value o The law tries to help people to become better human being o Critic  paternalistic view of life; the state can tell us how to live our life o Liberalism view  the state has no right to tell us how to live our life o Austin says there should be a split between morality and legality Natural Law  Concept of NL o Law means social order or order in general (comes from Latin 'lex'); or to bind/tie together (comes from ligare) o Tradition of the natural law is full persons with minds and bodies o It's about human persons first o Natural law is against using people means to your end o Law is used primarily to develop human person, second to make a better social order o Strong tie between morality legal validity vs. legal positivism (between morality and legality) o We have laws and rules out there waiting to be discovered o If animals have a pattern of behaving, humans should have it too o Reason is to uncover the laws o For natural law, there are always transcending laws from generation to generation o NL says there is a underlying pattern of laws o You discover laws, you don't create it o Problem: these laws are not self-evident; thus, it takes a high degree of rationality o Natural law is what we all have in common o Natural lawyers  Value-free o Positive law (made by people with self-interest) vs. natural law (value-free, law that protects persons as persons) o Natural law is about human and justice, one must be conscious of the wrongs (if you don't, you are wrong) o 1830s-1840s  natural law started to decline because of the positive law o Founded constitutions o Natural law is more important than state laws (always exists) o All positive laws either have to come from natural laws or justified by natural law (Aquinas) o Natural law would argue that it is violation of the person if someone changes a law for self-interest because it is not justified by natural law o Natural law is most important; the positive law is just a derivation o Natural law is written on our hearts and our minds (fundamental justice)  Actual Practice of Natural Law o It's people that practices natural law; but people are biased and self-interest o Natural law is somewhat biased, not much as value-free as it says as it is o Natural lawyers' first step is to convince people what natural law is, but not easy to follow o Second step: to persuade them to follow o Fundamental justice is often not happened for natural law o Not a liberal tradition, but a natural law traditions  Natural law says the law should make people distinguish good and bad (there's not gray area) o Natural justice tries to give person what they deserve, proper respect, so anything that is against that should be overturn  Task of Lawyers (2-fold) o First step: what natural law is o Second step: how to connect natural law to tasks  Why don't we study natural law today? o We often study real estate law, practice of law o Why? Because it's about me me me (prof agrees)  It's more about reason, it's on our heart  We know the natural law indirectly  5 reasons why we don't study natural law today: Ideological form of law  relatively conservative (Roman Christian church promoted natural law tradition)  a respect of faith, commitment to God (Re-ligare  to bind together; religion means going back to God)  Some may say it's too tied into religion (Response: Predates the tradition for thousands of years) Legal/political jurisdictions  we are multicultural meaning different laws and traditions; we value differences, but natural law is about commonalities  "I don't care about your laws"  legal egoism 3. Financial Considerations  natural law needs lots of experts  Natural law tradition is part of liberal tradition (legal positivism support the idea that the states have their own laws) 4. Political/Social Inequalities  law economic theory (law is about money and where it is about money, it should be about money)  Natural law is the opposite; winning a case doesn’t mean you are not wrong 5. Legal Positivism (John Austin)  direct assault to natural law (promoting economic self-interest for the British empire)  Value of Natural Law Theory (prof argues) o Relativize the state  person and the social good are primarily important, state is secondarily important  For Austin, what my government puts forth is important  Natural justice before legality (just because you made the law doesn’t mean it is just)  Makes the states less important o We are not only citizens  If the state is important, the citizens in that state is just as important  State is still important, only secondarily  State has to serve human beings first, human beings never serve the state  State is there to protect, we are not there to protect the state; We're not meant to be slaves  When it doesn't, you can ignore the law or change the law (these are the conditions for civil disobedience - Dworkin)  Dworkin support civil disobedience because of the support of natural law o Basis for international law  Positive laws often contradict each other  Natural law is being revived because of globalization  Positive law means laws that put forth, to posit  Natural law says just because you put forth a law, doesn’t mean it is just  Natural law thinkers say it is the fundamental for all other laws  Each step has a previous step (for Aquinas; he is about logic) Thomas Aquinas  Background o 13th century Catholic Italian monk o Human Wikipedia o Major influence in the west o First major proponent of the natural law  How to read (Summa Theologica?) o His methodology (5-part method)  First: general questions about law  Second: mention some of the great thinkers on law (ex. a literature review)  Third: "Sed Contra" in Latin  meaning on the contrary/on the other hand  He is allowing for an individual to express their own opinion (big thing back in the days)  Beginning of individualism and free intellectual thought in the 13th century (the idea of "I think") Fourth: he gives his own answers (what he thinks)   Fifth: objects/criticizes his own answers (shows you're a sophisticated thinker)  These questions are logically linked; thus, moving onto the next question  Aquinas on the Law o How does Aquinas deal with the Law?  What is in common in all of us? Look at the laws in different time  try to find the essence (commonalities)  what is the law? o Why does Aquinas deal with the Law?  Very concerned with law that law influences people on how they behave  So state should use laws to make people good; thus, we go to heaven o Breakdown of Questions on the Law  Q 90-91  what is the essence? (90), difference kinds of law (91)  Q 93-97  3 kinds of law  Eternal law (93), natural law (94), human law/positive law (95), divine law/God's law (what God tells us how to live)  Q 90-91  methodological; essence of law (90) & different kinds of law (91)  Q 93-97  3 kinds of law o Eternal law (93) o Natural law (94) o Human law (95) o More on human law (96+97)  Q 98  divine law Aquinas' View of the Law 1. The Essence of Law (Q90  4 articles)  What is an essence? What makes the thing the thing  What makes the law the law? Strip away all other laws The Essence of law is rooted in the act of human reason (Q90)  fundamental point  Power shifts, used by different people, different institutions  The opposite of reason is power  Essence is a fixed thing  Laws can change, the essence of law never changes  Aquinas argues that the law must rooted in human reason and rationality  That's why human beings have law, animals don't  The law command and forbid certain activities  Reasons tell us what we should and shouldn't do  It tells us minimally what we shouldn't do  negative  The law is a measurement, a foundation of our actions  Unfortunately, most law is based on privileges  these laws are not Law for Aquinas  To make us happy  from Aristotle  become excellent at living, physical behaviour; Law and reason make society and individuals in the society happy  Aquinas  If you're following the Law, you will become more happy; the Law helps you become happier, helps us excel ourselves  Difference between Law and laws and Reason and reasons  Reason and Law  normative (tells us how we ought to or ought not to behave)  "Whether Law is Something Pertaining to Reason?" (a. 1 - p4)  Law: Practice Reason (how we ought to behave and ought not to behave) "Is law always something directed to the common good?" (art 2)  Law should be made for the common good, for the society  All people should be treated equally  We all have human reason, although might not be well exercised  Law is a "rule & measure" of human acts  The La
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