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HUMA 1825 Note 19.docx

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Department
Humanities
Course
HUMA 1825
Professor
Neil Braganza
Semester
Winter

Description
HUMA 1825 Note 19 - Whotcott o This is a long awaited case on hate o This case has to do with section in the Saskatchewan Human Rights code  In this section (human rights legislation)  You cannot speak on belittlement of other groups o There were printed t-shirts and publications that hated homosexuals. o He claimed section 2(b), it upheld the section but changed a few of the words in the section  “Any publication that exposes to hatred, ridicule or threatens” was struck out  Only “hatred” remains legislation o Since Wednesday the press has commented on this judgment. o The critics want either a less limitation of freedoms like in the US, and other believes that this legislation ought to be struck completely because it is too easy to make vexatious complaints to human rights legislations. Class Writing Assignment 6 - Butler, Labaye, Bedford Brawl - Rawls King - Read the discussion questions - There will be four questions. - This will be dependent on your opinion and arguable position of what these arguments state. o Consider the in depth arguments made - The final exam is on Sunday, April 14 from 2-5 at the Rexall Center o There will be a review session on Monday, April 1 st  This will also be our final meeting. Civil Disobedience - Rawls is an American philosopher who taught at Harvard - Rawls and MLK are contemporaries. o Their lives and ideas overlap. o Rawls is the theorist of civil disobedience and MLK is the practitioner of civil disobedience - Law is justice according to MLK o In his letter, King references Aquinas specifically in the text. This is one approach to law. Klauss Barbie Trial” - This is resistance to tyranny o What Rawls and King talk about is civil disobedience in a civil democratic state  This is different from resistance in a dictatorial state. Recap - Natural law theory: law has to be equivalent to morality - Legal positivists came to the approach that the validity of law is due to its existence as opposed to its moral content o Therefore, law could be law even if it can be Nazi Germany or the segregated South - Legal Moralism: o What was the right of the state to legislate morality specifically in criminal law? o How can the state criminalize behaviour that it considers immoral, which other people see as harmless wrongdoing - Civil disobedience is by definition is legal o It’s grounded by moral convictions to disobey the law  This becomes a political question if enough people believe that certain laws are wrong, unjust, and must be changed. o Look at the word civil – what does it mean? It pertains to citizens as part of the community or as individuals.  Note, at the outset, for Rawls and King the theory and practice of disobeying the law in a civil manner (peacefully and non- violently) the context, is what Rawls calls a “nearly-just society”  The political context is of a liberal democratic state only.  This does not hold in a totalitarian regime.  Therefore, this theory only works in a liberal-democratic state - When are we authorized at disobeying the law? o Logically and practically, it is important to ask “why do we obey the law”? o The Law (all law) carries with it the obligation to obey it  Simply to say that something is the law means that it has to be obeyed  This reason to obey the law leaves little room for civil disobedience o Another common reason for obeying the law is consequential in nature – the reason here for obeying the law is the belief that bad conseuqneces will follow if we disobey  Here the emphasis is on the dangerous social consequences and anarchy if we disobey  Remember, even Aquinas urges us to obey bad laws to avoid scandal and disturbance.  At the same time, if there is greater benefit in disobeying the law o The third contractual justification: we obey the law because of a pre- existing social contract between the rulers and the rules  Obedience to the law can be justified by reference to a prior agreement, contract, or covenant between the rulers and the ruled.  This is a very old idea. o Social contract is where we went from a state of nature where life was nasty, rubbish and short (where there was no civil society or rule of law), the social contract was instrument by which we moved from the state of nature to civil society.  Hobbes see that the social contract is historical see it as occurring in history  Kant sees this as ahistortical – an abstraction  The point of the social contract is that we obey the law because of a prior agreement, and the terms and conditions of the social contract when the parties agreed to it.  This argument leaves a lot of room for civil disobedience.  If the rulers didn’t hold up their side of the bargain then their contract is null and void  If there is a material contract violation then it is null and void  It is all null and void if there are disparities between the bargaining powers o If things are unfair and there is gross disproportionality  A contract consists of an author and an agreed.  “The Godfather: I will make him an offer he can’t refuse” this shows the gross disproportionality of the bargaining parties - Both Rawls and King make social contract arguments for civil disobedience. o They’re going to say that the social contract is broken, and the bargain is unfair for one of the parties.  Therefore, that party that is subject to unfairness has the right and duty to protest the terms and conditions of the contract.  This leads us into Rawls and King’s ideas. - There is no simple correspondence of theories of obligation and natural law and legal positivism o In actual fact, the problem of how the nature of law relates to the source of the obligation to obey the law is a great problem in contemporary jurisprudence that is not settled  It’s a common mistake (an oversimplification) to say that natural law theorists tell us to disobey an unjust law.  Note, Aquinas says that in certain circumstances you should obey an unjust law. o Hart tells us that just because a law is valid by the rule of recognition, does not mean that we have to suspend all judgment and obey it if it is morally wrong, so there isn’t a simple correspondence of theories of law and the nature of obligation of obeying the law Rawls - Wrote the theory of justice published in 1971 – there was huge excitement and interest among students, scholars, and the general public o His main purpose was to argue for a theory of justice that was rooted in the social contract tradition o He wanted to argue for equality, individual rights in opposition to the prevailing theory of the time which was and is utilitarianism.  Recall, utilitarianism (positive social utility as the greatest good) argues for the greatest good of the greatest number  It therefore subordinated minority rights for what is good for the majority o Rawls’ version of the contract theory is to argue that the “right” preceded the “good”  He mounted one of the most successful challenges to utilitarianism.  “Each person posses an inviolability founded on justice that even the welfare of society cannot override. Therefore, in a juts society, the right secured by justice is not subject to political bargaining or to the calculus of social interests.”  The right that individuals have precedes what is the good of the overall majority.  His central, basic thesis is that civil and political rights and inviolable. o He follows Kant that a human being should be able to choose his or her end, and the State should not treat people as a means or end.  Therefore, claims that are based on the rights of individuals should always take precedence on the good of him or others of violating the individual rights. o The first duty of the State is that the individual’s basic civil liberties are ensured, and that the loss of minorities can never be made right by the greater good shared by others  This is what Rawls means by the “right” precedes the “good” - Justice is then fairness in society and society’s institutions o Just as fairness has become part of political and moral philosophy language, certain key concepts in Rawls’ ideas justice as fairness has passed into the language o “The original position” and the “veil of ignorance” - Rawls postulates a hypothetical device called “the original position” – this device is made so as to imagine a perfect contract – where the contracting parties are perfectly equal. The result is justice as fairness. o In reality, it is imaginary, because bargaining parties are never perfectly equal. In this imaginary device, the parties are perfectly equal. - The original position does not exist in historical time – it’s a “let us imagine” scenario. o Imagine, that in the OP there are people who are called upon to make the kind of agreement necessary from escaping from a state of nature, and establishing civil society  They’re called upon to reflect on principles of justice to be adopted in society in which they will live. They have only one characteristic that characterizes them – they are rational. Thus, they are motivated by self-interest to strike the very best bargain for themselves. o Therefore, in this imagined position, the moral
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