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SOSC 2350 Note 7.docx

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York University
Social Science
SOSC 2350
Dena Demos

SOSC 2350 Note 7 Legal Liberalism Midterm Exam - Monday 17 December @ 9am o 120 minutes o Tait McKenzie Centre, East o Worth 25% - Case analysis is due on Nov. 20 th John Stuart Mill 1806-73 - English philosopher and economist; classical liberal theorist - Liberalism = an ideology and a political tradition, which holds that liberty is the primary political value - Liberalism has its roots in the Western Age of enlightenment as represented in the writings of philosophers like Hobbes, Mills, Locke, Kant and so forth o Enlightenment put the rational person at the center of the universe  Rational for Kant, since we have a capacity of reason, we have an obligation to capacitate it.  Simply obedient doesn’t mean to be submissive, but to critique and understand the laws. o Kant: an individual is only free if they recognize and exercise their rational faculties  You can’t behave like a total idiot if you feel guilty for doing it, because we have reason we know if these things are right or wrong about these things. - Focus on appropriate role of law and government in lives of citizens o Find the minimum, so far as it enables us to excel, reach hopes and dreams. To realize our full talent. - Support a free market and a small role of state - The liberal metaphor is that the world consists of a multitude of independent individuals who have somehow, at some time, entered into an accord (social contract) to establish common ties for the common good. o A collection of like-minded individuals who are like us, voting for the creation of values and ideals. o There’s a representation of voices o Mills: dissenting voice:  There could be an important insight, contribution to society, laws, government  To silence it, is to silence the potential for individual  Critical thinking in liberalism is a good thing  It’s an expression of reason,  We’re driven to as these kinds of questions - Ideology: the ideal and justified way you form too sees the world and everything you see around you. Key Points - Rule of law - Formalism - Neutralist - Abstraction - Individual Rights Rule of Law - Governments should be bound by known principles of law without distinction in their applications to particular individuals or groups o Without being racist. - Legal reasoning should be sharply distinguished from moral and political deliberation and choice. o The law needs to be seen as:  Fair, impartial application of law and justice  Regardless of race, gender, faggotry, etc. o In moral and political deliberation is argument  Application to specific context.  Consider this:  Whenever we make a moral decision, we are making the deliberation o How is this going to affect me? o For the rule of law to have legitimacy, it needs to be:  Standardized, eternal and without partiality of being squeezed and broken to certain contexts. Formalism - Legal Formalism: The notion that legal rules from a consistent and complete whole view/way of life from which the answer to any legal question can be logically deduced simply by applying the laws to a specific case. - Judicial reasoning can yield to determine legal results o Interplay coherent/logical, can be understood and predicted, abides by its own universal system Neutrality - Legal principles and law are not based on any particular group’s conception of “moral” or “good” o An intention and hope of the law: that it will be neutral and fair, because it is neutral. o This is against the concept that law is based off of culture:  Eurocentric, Christocentric, etc. Abstraction - The law should operate at a high level of abstraction that excludes consideration of the social context. o Fair because it is not attached to/have allegiance to a particular culture, or set of norms: form, not content)  Fair because it speaks to the form of human interaction, but not speaking about the content:  Right to education, freedom of conscious, etc. o What does it mean?  That content isn’t fleshed out. o Talks about a universal faceless, nameless, genderless human subject  Because of this, it’s there for fair: it’s not communicating or privileging a specific individual over another. o It’s unfulfilling, we want to have a sense of belonging. o There has to be some sense of fairness without obliterating specificity. Individual Freedom - Classical liberal theories focus on the appropriate role of law and government in the lives of citizens - Focus on individual freedom as the desirable outcome of a system of law o Individuality and Freedom of Liberty - It’s job is to facilitate the security and satisfaction of its citizens, minimal interference Mill’s notion of Freedom - The only freedom that deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. - Key Question: What kind of power can society legitimately exert over the individual? What do Individuals owe society? - Although Mill doesn’t subscribe to the notion of a social contract, he does acknowledge a mutual obligation - Everyone who receives protection owes a return and each should be bound to observe a certain line of conduct towards the rest - Conduct (not thought) o Not injuring the interests of one another o Bearing his/her share of the labours and sacrifices for defending society or its members from injury or molestation.  At the very least, we owe it to other members of society to hear out their ideas and perspectives, insights, etc. Might contribute to the changing of our insights and hopes. - Mill wants to sustain the freedom of thought (conduct interferes with individuals) o Fantasy remains in the realms of fantasy, doesn’t harm anyone. Jurisdiction of Society - As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it) the conduct_ becomes open to discussion (not automatically open to the law) o No people can impose their rules on others o We never know what the dissenting voice can contribute - The citizens decide – as a group – whether the values and interests of society ought to change. No individual has the right to do / impose this on others. - Enlightenment puts a big responsibility that if we’re all independent agents that are able to realize our potential, its our job to do so o With great power comes great responsibility. The Harm Principle - Interference with the liberty of an individual is only justified to prevent the harm to others - Otherwise, the individual is sovereign and should be allowed to manage his/her own affairs in any way he or she likes – but stand the consequences - This includes the right to be self-destructive. - Appropriate liberties are defined by utilitarian calculation from this basic principle of human freedom - “I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being - Mill regards liberty as a requirement for human advancement, both individ
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