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SOSC 2350 Note 6.docx

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Department
Social Science
Course
SOSC 2350
Professor
Dena Demos
Semester
Fall

Description
SOSC 2350 Note 6 Natural Law v. Legal Positivism - Natural Law: a matter of applied morality o Logical connection between law and morality o Does mean that law is morality o But that no rule can count as a law unless what it requires is at least morally permissible o St. Augustine: “An unjust law is no law at all” - Positivism: A law is a type of social technology: to control, guide and manage society and individuals. o Keep law and morality separate to avoid confusion. - Natural law is: o Not made by human beings:  Divinely ordained, law of the universe o Universal and eternally true  The same for all human beings at all times  An unchanging rule or pattern that it is our task to discover o A means by which human beings can rationally guide themselves to realize their potential. Classical Natural Law - Greek and Roman thinkers Plato, Aristotle and Cicero - Medieval Christian theology, STA - They wanted a new system, where people obeyed the law out of respect/recognition that it was morally correct, and our moral duty to obey. - The asked: Why (morally) ought one obey the law? Answered: One is obligated to obey the law only if the content of the law itself is moral. Pg. 166 - Law is connected to morality, but what is moral? o Morality is related to the natural order o Duties can be determined by examining the natural world to find the natural or God-given relationships inherent in nature o Based on the presupposition that:  Nature has a fixed set of ends or purposes (essence) for human beings. Potential as individuals and society  Moral duty consisted in acting in accord with these purpose. St. Thomas Aquinas: - Immensely influential philosopher and Christian theologist - Has four kinds of law o Eternal law  the decree of God that governs all creation o Natural law  eternal revealed to humans through reason o Human law  natural law applied by governments to society o Divine law  Law revealed in scriptures. - Asserted that a norm does not conform to the natural law cannot be legally valid “and unjust law is really no law at all” - “Moral duty consisted in acting in accord with the essential purposes implanted by God in nature, and we were supposed to discover essential purposes of creatures such as ourselves. The virtuous human life consisted of living consistently with out natural function, and systems of social coercion were properly called “legal” only if consistent with such functions. Page 166. Critique of Law to Morality - Is the linkage of law to morality tenable? - HLA Hart: the concept of legal obligation is different from the concept of moral obligation - There is law that is morally neutral, morally admirable, and morally bad o Does only the morally admirable qualify as law? o Hoes does natural law theories require us to obey morally neutral law? - There are alternative ways of finding a moral obligation to obeying the law. G. E. Moore’s “naturalistic fallacy’ - Whenever a philosopher attempts to prove a claim by appealing to a definition of the term good, they are committing a naturalistic fallacy - Creates logical looseness in any account of duty - Often appears arbitrary (who decides what is natural? - Natural law as mechanism for living a virtuous life, but it offers clarity at price of uselessness (Do good and avoid evil) Human rights: - Individual natural rights next stage in natural law - Fundamental entitlements such as freedom and dignity of human based on reason, and distinctness of humans - Ground of enlightenment, French and American Revolutions. - Do we really want to say that Natural law is ridiculous? - Kant would say that we aren’t behaving in a moral way unless we reason about it. If we obey, we’re just being obedient, and not moral. Contemporary natural Law Theories - Do not depend on metaphysical or theological theories - Connection between law and morality is only necessary at level of entire system (Lon Fuller) - Stark Separation/division of law from morality misses central features of judicial deliberation about constitutional rights (fairness, freedom of conscience) (Ronald Dwarkin) Claims of Classical Natural Theory 1. Moral validity is a necessary condition for legal validity - an unjust or immoral law being no law at all 2. The moral order is a part of the natural order – moral duties read off from essences or purposes fixed in nature pg.167 - Even if you reject (2), you can still subscribe to one (moral validity of law) - But to want the law to be morally good is not the same as saying that it must be morally good in order to be legally valid. This is a tall order. Or is it? - Is it too much to ask laws to be moral? - If we want the law to be moral…whose morals are we going by? - In a socially diverse context, what moral system prevails? - Laws may need to make sense (be logical) to be respected, but do they need to be moral? Legal Positivism - Represents a response to natural law - One of the aims is to distinguish law from other kinds of rules, such as morals - Laws are made by human beings - Two approaches to legal positivism: o John Austin o HLA Hart John Austin’s Legal Positivism - Austin gave positivism in its first systematic statement - Legal philosophy (jurisprudence has two tasks o Analytical jurisprudence (law as it is in society) o Normative jurisprudence (law as it ought to be) - Failing to keep these tasks separate produces intellectual and moral
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