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HUMA 1825 Midterm Exam Review.docx

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Department
Humanities
Course
HUMA 1825
Professor
Neil Braganza
Semester
Fall

Description
HUMA 1825 Midterm Exam Review Antigone - The main concern of this story is relationship between Creon and Antigone o Was Creon overpowering in his decision to make Antigone unable to bury Polynices? o Should Antigone have obeyed Creon’s law seeing as disobeying it caused more grief than obeying it would have? - This idea is a framework for the course because it focuses on the conflict between the classical natural law position (Antigone) and the legal positivist position (Creon). - The natural law is present in Antigone when she says that there is a moral truth that is absolute and that overrides human law which is inconsistent with that moral truth o For her, the moral truth must be reflected in the content of human law, otherwise that law is not valid and is not authoritative - For Creon, human law is what he says it is, and because he is the duly constituted lawmaking authority, his law is valid and authoritative where he is concerned. - Creon and Antigone and their struggle between giving power and obeying power. o You can tell the story of the ruler; he has certain motivations to achieve certain goals. o What were Antigone’s reasons for disobeying Creon’s law? Would you agree with those reasons? What are your reasons to agree with those reasons o What are Creon’s reasons for having those laws? Do you agree with Creon? Would you agree with his Character? o Why is Antigone good to have in the course? o Try thinking the material in a kind of compressed way. Don’t be detail focused, instead be agenda focused: manage the memory. - Also consider the secondary characters and their attempt to stop the system from falling apart. - Know the following from the text: o Creon’s justice is that heroes are honoured and treated as such, whereas traitors are to be left on the roadside for the consumption of animals  This is contrary to Antigone’s belief that everyone is equal after death despite his or her actions and beliefs in life. o Considering how Creon is the ruler, his concept of law is that he has a ruler can create laws that will represent the greater good of his city. o Creon starts out as an almighty justified ruler, disregarding Haemon’s and Tiresias’ opinion, however after self reflection he has a turn- around of character Aristotle - Justice (distributive/ corrective [equity]), voluntary and involuntary transactions. o V and Iv are about knowing who is responsible for what. o This is an important factor to consider when distributing o Aristotle would say to look at the person’s character in the case involved. o If they don’t have an aspect of justice, then you cannot punish them for their lack of justice. o V and Iv are about allocating responsibility. - Justice as virtue, Justice as happiness (Telos/ The Common Good). - Justice as reason. Do not let the person rule. If the person rules instead of the rational principle, then the person will become a tyrant. - Justice as distribution in terms of proportionality. Giving each person their due: a judge must look at people’s characters and side with the advantage of the better character. You reward the better and not the worse. o Selective process is justice. Do not use equality. o Not everyone is “equal”: people should receive what they deserve based on their actions and character. - Corrective justice (like an appeal process): when a judge misjudges. You need to use corrective justice to fix that mistake. Distributive justice is about a dispute whereas in the corrective justice you have to purely the balancing. o Taking away from having too much and giving to those who have too little. - Justice is an inclination; it’s a desire. Aristotle wants to see just outcomes. The outcome is the greater, common good. That common good is virtuous. What is virtue? Excellence. o Therefore, Justice is a disposition to promote excellence in human moral character.  How? By following proportion: rewarding the good and not the bad. o Reason is putting the general above the specific advantage that we may have of the specific.  We look to the bigger picture as oppose to our particular interest and perspective.  This involves prestige (rewards of recognition)  It also means corrective justice (fix the problems)  This way, it encourages the communal body to work well together.  If you’re judging character you have to not blame people for something that isn’t their fault, and at the same time do not reward others by not intending to.  What does Aristotle mean by virtue?  He means that it is an excellence of character. Justice is the highest virtue, it promotes character, involves distribution, correcting the mistakes when they occur. Therefore, that is what Aristotle means by virtue. It’s how he sees the community working well together.  What is corrective justice?  Fixes mistakes by distributive justice, then goes o Equity: corrective justice that is not bound by the rule of law. The rule says this, however the rule is general. The rule is a “one size fits all”. However, some things you have to account for the particularity of circumstance. Sometimes you have to put the rules aside. What is really for the common good?  Therefore, justice can be in equity or in the rule of law. - Distributive Justice is looking at the virtues and character of a person and using that to decide the amount they should be rewarded in o At the same time, this is a principle of formal equality in regards to it being not contextual enough, and sometimes even though it sounds good, it isn’t due to unfairness.  Consider Nazi Germany where being Aryan was seen as a virtue and being Jewish was seen as a vice. o Justice is a distribution of the whole that is commanded by the law o This is also an example of case law in the sense that Aristotle wanted to “treat like cases alike, and treat unlike cases differently” - Corrective justice (proportionality) is using addition and subtraction of rewards for people if under the original judgment they were misjudged. o Perhaps they aren’t really virtuous, and weren’t responsible for the virtuous act they committed  Therefore, they should have their reward revoked. o The point of corrective justice is restitution and to restore the parties to the position they would have been in originally.  In corrective justice you look specifically for the voluntary or involuntary transactions.  In voluntary transactions a judge has to restore the “loss” of the agreeing party that suffered a loss to their assets  In involuntary transaction, where the person gained something they didn’t intend or deserve to gain, the judge has to restore that by taking away the “gain” and giving it back to the victim. Aquinas - Natural law: a key concept that is in Hart, Fuller, and Dworkin in terms of that there has to be a sense of right or wrong. o About the tradition of knowing what is right - Human law (the positive law). Humans made rules that are emplaced in our community. - What is natural law: it is about our morality. The knowledge of good and evil, right and wrong. There are a few levels of experiencing of that right and wrong. o Furthermore, there are then HUMAN laws that you have to deal with. - Divine Law and Eternal Law are religion. This is where we get our morality. - The content of our morality comes from natural law; the law by nature. There are some rules that we know in virtue of being alive. - Natural Law connects you to the created world. It’s a method of feeling a connection to the created good. Aquinas says there are three levels of experiencing it. Existing thing, animals and humans. At each level you have a different kind of content to your natural law. - Be practical when accepting or disobeying laws. Sometimes the common good is served by obeying the human law that’s bad, it’s sometimes better than promoting the sense of justice by breaking the human law. - Law is a rule because it governs through reason, and has the power of moving the will o It’s a measure of acts because it binds of to act: therefore, our actions are bound in law. - The primary concern of law should be the common good of all people through the law, such as governing individuals to perform specific actions that would benefit the most - The law is an ordinance of reason for the common good made by those who care for the community - Aquinas presents a synthesis of classical and Christian views when it comes to Natural Law - Moral judgments and the moral law emanate from God (Christianity): o The divine command law o Natural law is religious and pertains to God and the scriptures. - Hierarchy of law: o Eternal Law: God’s universal law that are eternal since God is the immortal ruler of the universe, then all of his laws are also immortal. o Divine Law: The eternal law that humans can understand and comprehend through scriptures. It is necessary because it directs man how to perform in view of his last end, it acts as a guideline to clear uncertainty, it helps forbid and punish evil deeds unbeknown to man, and it grants wisdom that helps with judgment of unknown laws. o Natural Law: This is the evidence of Mankind’s participation in eternal and divine law. Every act of will and reason is based on that which is according to nature. o Human Law: Laws created outside of religious texts for specific human scenarios. - Human laws must flow from and be consistent with natural law or else they are not valid or authoritative and we have no duty to obey them o Sometimes, we even have a duty to disobey them if the human law is contrary to divine good and contrary to God’s command o However, if the human law is unjust in another sense, we may have to obey it in order to avoid greater evil like social and political upheaval. Hart - Separation Thesis o Separate law as it is from law, as it ought. What the governments rules are aren’t necessarily what we agree/disagree with? o Obey promptly, but censure freely. o It describes being critical of the law instead of being very nationalistic. o It’s only a critical space of reflection where you can imagine that the law may not be right. ø  THINK GOVERNMENTS AND ANGRY PEOPLE - Hart is the successor to Bentham and Austin o He defends the legal positivist position that states that law and morality are fundamentally distinct. Hart acknowledges that law and morality frequently overlap but they are conceptually separate (in definition) - Core and Penumbra: The only time this becomes an issue is when you talk about law and morality. Don’t talk about that. Sometimes talk about a specific legal case. Don’t bring morality into it. o Think about it as the microscope and it’s not in focus, when you look at it and its’ in focus, that’s the core. When you have to adjust the focus that is the penumbra. It’s all about explaining what is under the microscope. Law is under the microscope (rules/policy)  The penumbra and core is all about the context.  An open and shut case is about the core. When there is an uncertainty through the facts, then you have to prevent the law from having a bad outcome.  The penumbra is attempting to discover what the fuzzy law is.  Ought is the language used to describe how much room a judge has to bend the law. When you’re just trying to clarify the meaning, you should be looking for “What ought to be an accurate description of what this law says or means?  THINK JUDGES TRYING TO CLARIFY THE LAW - Command theory o Austin’s belief that all laws are commands and citizens do not have a choice but to obey them. - Legal positivism: any one who advocates the core and penumbra as well as the critical space of reflection, as well as a sense of discipline. The judges need to be disciplined and not overstep their powers. They are only supposed to follow the law (sometimes using their education to make sense of the law), however they shouldn’t make law up. o Even when a judge thinks it’s unjust you still have to do it.  You sacrifice your morality to adhere to the letter of the law. o What is the separation thesis? o What is the importance of the core and penumbra to Hart’s theory - Legal system o Primary and secondary rules  Primary rules were those that were present in a pre-legal society; that is the rules of obligation.  Do not hurt each other, do not steal, and do not cause arbitrary actions.  These gives us the content of the law  Pre-legal societies are usually small, unified homogenous groups. o There is a problem of uncertainty, trying to change the rules and the administration of rules in a pre-legal society  Secondary (supplementary) rules are then placed with the primary rules and in this way there is a procedural way in which the primary rules can be viewed.  The union of these two constitutes a legal system o There are two minimum requirements for a legal system to exist:  The bulk of the population obeys the rules (obedience of majority)  The officials have an internal POV about the rules. - There are rules of change: the remedy for static quality. o Through this an individual has the ability to make decisions or to introduce new primary rules to the group - There are rules of adjudication: the remedy for inefficiency: o It identifies who will adjudicate, and also provides the procedure for them on how to properly adjudicate. - There are rules of recognition: o Those that allow us to identify the law and know if something should be called “law” or “fact” o Internal POV of Recognition: when the majority of the citizens both recognize and obey the law knowingly and critically o External POV of Recognition: when there isn’t a majority of citizens who understand the law, and instead they accept it without question causing them to become “sheep-like” - The Grudge Informer: o A German woman who denounced her husband for going against the regime. o After the war she was put on trial  Her defense was that the statements were a crime under the law, and she enforced it by bringing a criminal to justice. o The court found her guilty because it wasn’t a positive law to report her husband.  Her motivation was to get rid of him, not strengthen the regime. Fuller - Inner Morality of law: the laws that make morality possible. - Those procedural frameworks (8 principles) are required for morality to work. o 8 principles of morality that make law possible:  Rules must be general  Rules must be clear and understandable  Rules must be promulgated  Rules must be prospective in nature  Rules must be internally consistent  Rules must not demand the impossible  Rules must have consistency and not change frequently  Rules must be administered in a manner consistent with their wording. o Morality isn’t just a private belief; we need it to be present within our system. The rule governing behaviour in our community. o By providing society with law, they can regulate their own behaviour and can achieve their own goals and objectives for themselves.  Therefore, Law is an interactive and mutually respective enterprise between the civilian and the lawmaker  This enables people to live a satisfactory life with other people. o The 8 principles are a method to eradicate the irrational out of our lives.  Through them we can create the ideal rational human condition. - Fuller sees law as the enterprise of subjecting human conduct to the governance of rules. o Therefore, through the rule of law, everyone is equal under the law. - Hart v. Fuller Debate o Hart claims that the 8 principles are those of efficacy instead
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