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Department
Social Science
Course
SOSC 1375
Professor
All Professors
Semester
Fall

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October 8 2013 Office Hours Tuesdays and Thursdays after lecture Wednesday by appointment STJ 3025 (upstairs) Anybody can drop-in for any reason! Unit II: Key Theories in Legal Studies Week 5A Early Theories of Natural Law: Aristotle and Aquinas Review  Natural Law Theory  Link between law and morality  Must you obey an unjust law?  What does “living well” mean to you? Or rather, what is your vision of “the good life”?  What is your vision of the “common good”?  Compatibility (between ideas of the good life and conflicting views) Background  Living well and “common good”  Assumptions about human nature  Law’s role in serving “common good”  What makes law “just”? 2. Aristotle (Plato’s student) A. Biography - 384 BC – 322 BC - Plato’s student at ‘The Academy’  Plato: ideal or utopian state  Aristotle: reality of state politics (interested in politics of the real)  Found of logic (founded certain formal aspects of what it means to be a human, and have rational thought)  Nicomachean Ethics (350 BC):  Based on lecture notes  How people should live  Studied by Aquinas b. Claims Aristotle’s basic claims:  Search for common view of the good = search for the highest good  Highest good = living well; happiness (happiness depends on welfare of other people)  Not a matter learning abstract, general rules  It is an activity, exercise, or practice  Goal: live well… ethical, happy, just (not living ethically, not living happily)  How to live well: do good acts  How to know if an act is good: good act arises from good habits  How to develop good habits: exercise practical reason Habit  Example “good habit”: giving seat up on the bus to an elderly person - How did the good habit arise? - Not knee-jerk act (not something you do out of nowhere, it has an objective) - No selfish intent or desire for profit - Expressions of our rational nature (its irrational to live unethical, because you are not living the good life) - Habits can be formed - This is where law comes in… b. Claims - laws shape habit, make good citizens Quote from Book II: “legislators make the citizens good by forming habits in them, and this is the wish of every legislator” - Effective (purposeful) law promote lawful or just acts “we call those acts just that tend to produce and preserve happiness and its components for the political society” - Justice is a “complete virtue” (don’t motivated by selfishness) - Recall Kanye’s, Rihanna’s, and Britney’s visions of the “good life” - Compare to Aristotle’s “living well”. - Differences? Based on what? Kanye, Rihanna, Britney have very self-centered goals. 3 Aquinas A. biography - 1225-1274 in what today is Italy -philosopher and theologian Commentator on Aristotle About Summa Theologica: - 3 parts: 1. God, angels, human nature 2. Morality, theory of law, virtues (man) 3. Christ, sacraments (unfinished) - Theological take on Aristotle b. claims Different types of law: - Eternal law (from Divine Reason) - Natural law (from eternal law through reason) (reduction of eternal law through human reason) - Human law (from natural law through reason) - Divine law (from God, directs man to eternal happiness) - Theological cycle in Aquinas - Beginning and end are the same (the Divine) (start and end with God) - This is the key difference from Aristotle PART II – Treatise on Law Question 90: Of the Essence of Law Law is… “nothing else than ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (broadcast, everyone becomes aware of it. Question 92: Of the Effects of Law - Making subjects good by serving common good - Permit, forbid, or punish - Fear of punishment can form habit that “leads men on to being good” Question 94: Of the Natural Law (6 essential features of natural law) - “held habitually”; requires reason - Serves one commandment: do good acts - Compels reason: necessitates good acts (acting according to reason, you are going to be doing good acts) - Common to all in general - Changeable in particular cases - Can be “blotted out” by corrupt habits (u develop bad habits, perversion of natural law) Recap: - Aristotle: - Living well is to good - Good acts arise from habit - Good habits as exercise of reason - Law forms habits - Effective laws lead to just acts Aquinas: - law makes people good by serving common good - Natural law – eternal law processed by human reason - “held habitually” (can only do good acts, if you practise good habits) - Compels good acts Recap According to both Aristotle and Aquinas: Must you obey an unjust law? No… - A law that doesn’t serve common good is not the product of reason (unjust law does not serve the common good) - By perverting both human reason and Divine Reason, an unjust law is a corruption of natural law (breaks the chain) - Unjust law goes against human nature October 10/13 Magna Carta Review - Aristotle: law, habit, and the common good - Aquinas: Divine Reason, common good, and natural law - Questions? Background  Two Charters: - Magna Carta signed by King John (1215) - Charter of the Forest signed by King Henry III (1217)  King John (one of the worst kings ever): - Son of Henry II, brother of Richard III - Angevin Dynasty (Anjou, France) - Ruled England, half of France, part of Ireland - Fought for and lost Normandy and Anjou - Controlled and exploited Barons (nobility) - Taxes, imprisonment, and execution (imprison wives and daughters, hold people ransom until they agreed to fight for him) “Why hunt for Excalibur, when you have something much more potent: Magna Carta” – Simon Scahama  Excalibur, king Arthur’s legendary sword  King Arthur ruled England in late 400s  In folklore, sword had magical powers  Symbol of rightful sovereign power Peter Linebaugh challenges this view on the history of Magna Carta - Magna Carta originated from a dispute between King John and the Barons… - FACT - …but… that it promotes and protects justice, freedom, and rights is not the result of “magic” - OPINION - History of Magna Carta is a history of struggle over common rights - COUNTER-CLAIM - PG 23 on reading - What is the difference between common and human right? - How do habits and customs relate? - Is there a Natural Law foundation to the two Charters? 2. Magna Carta - revised many times (reintroduced, repealed many times) only 5 copies that are that old - Defence against tyranny of Divine right (initially only for Barons) - foundation of many present day constitutions Magna Carta: 63 clauses Clause 39: right to due process - Notification, grievance, appeal procedures - (pp.28-29) - Rights of Women, Clauses 7 & 8: - “ A widow shall have her marriage portion and inheritance forthwith and without difficulty after the death of her husband.” (p.29) (lots of husbands being sent out to war) Rights of early bourgeoisie, Clause 41: - “All merchant shall be able to go out of and return to England safely and securely and stay and travel throughout England, as well by land as by water.” (p.30) 3. Charter of the Forest - amendment to Forest law - Added to Magna Carta in 1217 - Protected common use of royal forests - Common right to wood, grazing, foraging - “Wood was the source of energy” (p.33) - Clause 1: recognizes customary use of pasture - Clause 7: could not garnish goods from forest as a form of taxation - Clause 9: permitted profit from grazing - Clause 13: allowed to collect honeys - Forest customs clashed with power to afforest (place under royal law) - Forests as supreme status symbol of the king(p.34) - Different groups had different interests: church, king, nobility, knights, bourgeoisie, small farmers, tradesmen, peasants, widows 4. Linebaugh’s claims - History of Two Charters more than a story of power struggle among Kings, Barons, Church - Matter of common right focuses on the poor - History told “from below” - Social, economic, and political dimensions - “Magna Carta defined limits of privatization” (p.40) - “Common rights differ from human rights” (P.44) - Not linked to sovereign will - Human deeds before title deeds - Reflects a “natural attitude” - Stem from acts of labour - Praxis: common rights exists through labour - Collective - Independent of the temporality of state law - Granting of “perpetuities”: long history 5. Two Charters and Natural Law - “natural attitude” - Primacy of common good over individuals - Living well and customary right - Habit (common right or customary law) as an action, not a condition - Praxis RECAP: - TWO CHARTERS reflect change in attitudes - Curb despotism and protect the commons - Linebaugh: - History from below - Common rights versus human rights - Communing/habit as the praxis of living well th October 15 2013 Unit II: Key Theories in Legal Studies Week 6A Early Legal Positivism: Hobbes, Bentham, and Austin Background:  Natural Law Theory  Legal Positivism - Differences? Similarities?  What becomes of natural law, reason, and “common good”?  Hobbes = transitional figure (carries aspects of natural law, introduces to legal positivism, 300 years after Magna Carta) Exercursus – Basic knowledge of history is vital to understanding the evolution of Legal Studies. Today we move from Magna Carta (1215) to the Industrial Revolution (1800s). A. Thomas Hobbes – Biography  1588-1679, England  Systematic approach (physics, how things worked together like a clock, that motion triggers that motion)  Social contract theory – also known as “contractarianism” (imaginary contract, something that is assumed)  State of nature: - “war of all men, against all men” (p.49) ->  De Cive (1942) - 3 parts: liberty, sovereignty, religion (precursor to Leviathan) B. Hobbes – Claims  We enter civil society for profit, not peace  Civil society not a goal in itself (we are entering in society for personal gain) “All Society therefore is either for Gain, or for Glory; (i.e.) not so much for love of our Fellows, as for love of our Selves” (p.44) What unites us all:  Fear of each other (equal capacity to hurt you or fear of you) (fear of each other unites us all)  “natural equality of men”; will to hurt  Must be taught to be civil “Man is made fit for Society not by Nature, but by Education” (p.44)  Will to avoid death is natural, rational  self-preservation, preservation of your family = “first foundation of natural Right” (p.47)  Law of Nature = product of reason (will to avoid death)  Enter society by constraint or consent (we can conquer or be forced into system, or accept naturally)  Man gives up absolute freedom, sovereign power must then protect man (in exchange for freedom, the state has to protect you) 3. Jeremy Bentham A. Biography  1748-1832, London (250 years after Hobbes) (France becomes a Republic, U.S is founded, workers are working in factories)  Natural law was “nonsense”  Utilitarianism (greatest good to the greatest number of people, greatest utility for the greatest number of people)  Skeleton is on display in UCL  ‘Of Laws in General’ (finished in 1782) b. Claims ‘Ends Which a Law May Have in View’  Only the principle of utility motivates sovereign power to adopt a given law - Greatest happiness for the greatest number (torturing 1 person to save 100 people, do it because it serves the greatest number of people) - Focus on outcome or consequences of law - What law (positivist, how things are, scientific based) is vs. what law ought to be (normative approach, moral statement)  Subjects like children  Sovereign like parent ‘Ends Which a Law May Have in View’ (continued)  End (or objective) of law = the good that arises from preventing further mischief “The common end of all laws as prescribed by the principle of utility is the promotion of the public good. (p.33) ‘Signs of a Law’  Written (statute) vs. customary  Customary laws - Autocratic, verbal expressions (reflect one’s person, passed down orally) - Belong to uncivilized “brutes” (p.154) - Not authoritative, not neutral (they don’t serve the principle of neutrality)  Example of silencing and privileging 4. John Austin A. Biography  1790-1859, Suffolk, UK (40 years after Bentham)  Student, later colleague, of Bentham’s  The Province of Jurisprudence Determined (1832) B. Claims  Only God’s laws are natural laws (focus on the state) (god’s powers are very limited according to Austin  Political power = authoritative law - Political superiors issue positive law (position and positive have a similar root foundation)  Rules set by morality or public opinion are not laws (social group, or moral norm is not law)  Law are “a species of commands” Command theory of law: “a command is distinguished from other significations of desire *…+ by the power and the purpose of the party commanding to inflict an evil or pain in the case the desire be disregarded” (p.6) (Command comes from someone who has power, if you don’t listen to the demand and disobey, they can punish for not recognizing their authority)  Comes down to the power to punish  Duty accompanies command  Disobedience of command is a violation of duty  Assumes state authority is legitimate - Duty is on individual RECAP HOBBES - Enter society out of fear, desire for profit - Natural law the product of right reason; will to avoid death - Sovereign power must protect citizens RECAP BETHAM - Principle of utility - End of law: serve public good according to principle of utility - Customary laws not authoritative, but domain of uncivilized “brutes” RECAP AUSTIN - Political power – authoritative laws - Command theory of law - Individual duty accompanies command RECAP - What became of the question of common good? - What became of the question of justice? (justice as a virtue) - Separation of law and morality (authority of law is contained with the authority of state, if you have a strong state, it will enforce law to citizens) October 17/2013 Unit II: Key Theories in Legal Studies Week 6B th Legal Positivism in the 20 Century: Hart and Dyezenhaus Background th  Debate continues into 20 century…  On what grounds can somebody disobey an immoral law?  Protections against an “uncommanded commander”? (Dyzenhaus p.40) o Fear of too much discretionary power  Can a Legal Positivist believe that law has a basic connection to morality? - What is the nature of this connection? 2. Hart – Biography  1907-1992, England  Barrister  Worked for MI5 during WWII  Early influences: Austin and Bentham  Major book: The Concept of Law (1961) C. Claims  Offers 2 “concessions” to Natural law  Why? – Austin’s command theory of law goes too far; threatens rule of law  Addresses this AND argues there is no necessary link between law and morality 2 concessions draw on Bentham’s Utilitarianism…  What law is vs. what law ought to be  In examining “what law is” we find basic connection to morality o But keeps law/morality separate  Still a “check” on command theory of law? Hart’s 1 concession:  Some laws (i.e. against murder, theft) overlap with morals o Historical circumstance Hart’s 2 concession:  At procedural level, law is not morally neutral o Natural procedural justice o Treat “like cases alike” o “This is justice in the administration of the law, not justice of the law” (p.264) B.Claims Thinks Natural law theory goes too far by suggesting…  “that human beings are equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival” (p.623)  “and these *aims+ dictate a further necessary content to a legal system (over and above my humble minimum without which it would be pointless” (p.623) ***important if u pick hart for critical summaries  2 concessions intentionally weak: st o 1 : historical, circumstance o 2 : procedural, not substantive  Link between law and morality is not “necessary” Is there a contradiction in Hart?  Can law and morality be linked AND separate? o Linked = check on command theory o Separate = authority of positive law  Dyzenhaus clarifies/critiques Hart…  Does Hart read Bentham correctly? 3.Dyzenhaus – Biography  Current Professor at University of Toronto - Visiting scholar: NYU now and Cambridge (2014) - Born in South Africa - Invited to NYU to participate in the conference on Hart’s Separation Thesis’  Dyzenhaus questions Hart’s support for the “Separation Thesis” - Separation Thesis: “there is no necessary connection between law and morality” (p.39)  Dyzenhaus’s conclusion: - Hart misreads Bentham Read Dyzenhaus for critical summary*** Hart’s misunderstanding of Bentham:  Bentham’s rejects the Separation Thesis  Instead, authority of law depends on “institutional fact of the moral quality of the law” (p.43) Recall from Bentham:  Subjects like children; sovereign like parents  BUT… without “kids”/subjects, there is no authority  “kids”/subject validate authority o Not only subject to command o Also make demands, participate For Bentham  In “democratic legal order” there is a moral duty to obey laws  Demos (people) + kratos (powers) = democracy  Citizen not merely subject of law  Also empowered “author” (someone that authorizes law) Moral duty to obey law in a democracy…  SUBJECT: I obey valid law  AUTHOR: law is valid because I obey it  Citizen validates law through political participation (democratic duty) For Bentham…  You obey law not only as a subject, but because you are also “author” of law  Disobedience = violation of democratic duty  There is a necessary connection between law and morality “As Bentham said… obey punctually bu
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