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law and society -The federalist papers book notes.docx

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Social Science
SOSC 2350
Tanja Juric

The federalist papers book notes  Contribution of Montesquieu’s: federalist papers  Contribution of Locke: second treatise of government  Who shaped the modern rule of law: Locke and Montesquieu  Country with longest running tradition of rule of law: England  Political theorist: Thomas Hobbes  Thomas Hobbes talks about: liberalism and rule of law  Thomas initiated: social construct tradition that was developed by Locke  Liberals categorize Hobbes as a: liberal thinker  Only right individuals pertain during sovereign is: to resist the sovereign if they are threatened with death  Less then absolute sovereign would: have an uncertainty of the state of nature by encouraging challenges to authority, defeating the purpose of the arrangement  Order in a sovereign will result when: everyone bows before a single acknowledged power holder who answers to no other higher force  Sovereign ignore: legal restraints  According to Hobbes a sovereign can be bound by: law  Hobbes defined law as: the command of the sovereign  The creator of the law cannot be limited by the law because: the law may b altered at the law makers will  Jean Hampton’s description of rule of law: a rule is powerless and it only takes on life if it is interpreted, applied, and enforced by individuals. That set of human beings that has the final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what the rules actually are. (Human beings control the rules not vice versa)  Hobbes denied the possibility of: complete antinomy between the rule of law and the rule of will at the moment of interpretation ad application (there must be somebody not just some text but somebody who has the final word.  Hobbes rejected the: separation of powers which would generate conflict within the dividied soverign, handicapping, its ability to preserve social order  Lockes second treatise of government is : influencial formulation of liberal theory  Locke imagined a state being: individuals enjoy perfect freedom and equality, and were the governed by natural laws  According to the natural laws: one must preserve oneself, and not harm others in their enjoyment of life, health, liberty, and possession  Under natural liberty individuals: are free to persue their own vision of the good  In natural liberty everyone also possesses: the right to punish and seek restitution for violations of their natural rights by others  What creates a lawful problem: then right personally to enforce the law  In the absence of impartial judge: conflicts cannot be resolved to the satisfaction of the parties, since everyone would be biased in there own favour  Disputes would: threaten peace and security  Individuals would apply law by: joining together to form a government and accord it the power to make, execute, and apply laws for the public good  Lockes natural liberalism design involved: limited delegation of power, for limited purposes, from individuals to government, revocable by them if the government failed to meet its obligations  There was a speration of powers between: legislature and executive to assure that the government acts according to the laws  Absolute monarchy is: inconsistent with civil society because such a monarch would judge his own cases, continuing in a state of nature in relation to the people  Locke said legislation should be: established by majority vote  He contrasted the rule of law with subjection to the will of another: “freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by legislative power  Locke did not specify any limits on: legislative power  For individual rights he did not: advocate explicit protection for individual rights  He did not articulate: the independence of the judiciary as a separate branch  Locke failed to identify: any mechanism, short of revolt, which could invalidate illegitimate government action  Locke had a significance to: the right of property  Term property was used to state that: life and liberty that individuals owned themselves and those who had property had a sense of possession  Lockes state is: a state of property owners  He believed that humans: had the inherent capacity for reason  Laboring class lacked: in reason  Leo strauss elaboration of lockes view of equality: equality is incompatible with civil society. The equality of all men in the regard to the right of self preservation does not obliterate completely the special right of more reasonable men. That special right is conductive to the self preservation and happiness of all. Self preservation and happiness require property and a society is to protect those with property.  People that were eligible to rule were those that had: estaes  The democracy: was the consent of property holders  Locke assumed that: only those with property were full members of civil society (explains why locke did not promote any direct protections of individual rights)  He stated that who ever had property: had maximization of public wealth  Marx stated that the liberal state and law of operating in favour of bourgeois is: your jurisprudence is but the will of your class made into law for all  Friedrich states: as the state arose from the need to keep the classes it is normally the state of the most powerful, economically ruling classes, it is normally the state of the most powerful, economically and so requires new means of holding down and exploting the oppressed class  Liberals stated that law is: neutral, standing above the class conflict, and that individuals as well as society are much better off, amoung other reasons,  They are much better off because: the property preserving oreientation of liberalism maximizes wealth as well as liberty, as well be articulated later on  Montesquieu stated: equating democracy with liberty is an error in which power of the people has been confounded with liberty  Liberty is: not the right to do whatever one pleases because then everyone would be under constant threat owing to others doing the same  Each of us has liberty if: all are restrained from doing harm to one another  Law creates: scope of secure action within which individuals may do as they please (statement of legal liberties)  He identifies liberty with: a life lived under the rule of law  Liberty only exists if: people are secure from tyranny  M
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