Philosophy of Law Notes
Vena V. Verga
PHILOSOPHY OF LAW NOTES ATTY. VILLAREAL PHILOSOPHY AND LAW Perfecto Fernandez Philosophy deals with thoughts rather than external action. Refers to law as a special branch of learning and inquiry, in the sense of a legal system.
Criteria of identification = Rules of recognition (Hart) Example: 1. Judicial adoption – a secondary rule of recognition 2. Appro Approva vall of of a law law by by the the president – a rule of recognition Unjust Law as valid law
4 Central Problems 1.) What is the nature nature of law? law? 2.) What is the distinguis distinguishing hing criterio criterion n of law? 3.) Does an an unjust law law remain remain a valid valid law? law? 4.) What are are the ends or ultima ultimate te goals of law? law? Nature of Law Expression of ideas in Philosophy 1.) Empirical propositions – based on sense experience. experience. The Conveyance of a fact and is subject to factual verification. verification. Example: the Sky is blue 2.) Normative propositions propositions – function function as guides guides or norms norms of human conduct. conduct. Conveyance of a command. There is a value judgment. Example: Thou shalt not kill. Honesty is the best policy (this is a normative proposition hidden in an empirical-like form. Once you analyze it, according to the article, it comes out as a value judgment, since it is the judgment of one person to state that honesty is the best policy, which means that the the saying “Honesty is the best policy” becomes BE HONEST!) - Legal propositions propositions are neither a part of science nor can they be validated validated by science. Rules of law are Normative in character.
Distinguishing Criterion of Law – how we distinguish rules of law from rules that are not law. We use the notion of legal validity. Elements of Identification 1.) Element Element of Coercion Coercion by sovereign sovereign authorit authority y 2.) Norm of validity validity by which which rules belonging to to system are are identified Validity Validity is a relational concept, the problem in every case is whether or not the rule in question is valid in relation to a particular system. Thus question of validity can’t be solved in abstract, but only in context of a particular legal system.
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Positivist view of law – affirms that rules of law remain law, regardless of their moral invalidity . Natural Natural law theory - maintains maintains that law must conform to basic basic moral moral standards and that a law which is unjust is not a law.
Perfecto Fernandez believes that natural law doctrine is based on fallacy, where a moral norm may actually be an imperative/normative imperative/normative command and so is not based on sense experience/empirical experience/empirical proposition. Example. Example. Honesty Honesty is the best policy – “It is my judgment judgment that there there are good reasons for being honest and it is my desire that you accept these reasons and BE HONEST.” Thus, it is language that gives preferences (like how one person thinks honesty is the best policy) a semblance of concreteness and universality. Moral principles entail: 1.) Private and individual judgments as as to what is desirable 2.) The desire desire that others conform conform to judgments judgments in their conduct. conduct. (like the honesty example) “Thingification” “Thingification” – the moral judgments of private individuals individuals are made to appear as essential attributes of the universe. Note: Following Hume and Kant, no contemporary philosopher seriously entertains the view that moral values are existing as facts of nature. Philosop Philosophy hy vindicate vindicates s the practical practical grounds for rejecting rejecting conformity conformity with moral standards as a requirement for legal validity. Criteria of validity or rules of recognition are Empirical. Moral Standards as shown by philosophical analysis are essentially judgments of individuals, hence subjective and variable.
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When we call a law unjust and are criticizing a rule in the legal system, we do so on the basis of a rule in a different system, a system of morality. Ends of law – for the present and foreseeable future, law has the modest but crucial task of providing the social conditions of security and liberty essential to human achievement. One Major Point in the article: Perfecto Fernandez Fernandez seems to believe that the natural law theory, which is based on moral standards, is a fallacy.
B. IS LAW NECESSARY Dennis Lloyd Main Thesis: The answer to the question question lies on your perception of man’s man’s nature. Whether or not man is in nature good or evil would give us an answer to the question of necessity of law.
the social environm environment, ent, particularl particularly y the teaching teaching of rituals rituals and the restraints of penal laws. 2. Indi India a (sha (shast stra ra)) – men men are are by nat natur ure e pass passio iona nate te and and cov covet etou ous s and and that that if let to themselves, the world would resemble a ‘devil’s workshop’ where the ‘logic of the fish’ (means: big ones would eat the little ones) would reign. 3. Western Europe (a) (a) Bodi Bodin n – orig origin inal al sta state te of of man man was was that that of of diso disord rder er, forc force, e, vio viole lenc nce e (b ) Hob be bes – t he he l if if e of of p ri ri mi mi ti ti ve ve m an an w as as a s ta tat e of of p er er pe pet ua ual warfare, where individual individual existence was ‘bruttish, nasty and short’ (c) (c) Hume Hume – with withou outt law law, gove govern rnme ment nt and and coe coerc rcio ion, n, hum human an soc socie iety ty could not be exist and so law is a natural necessity necessity of man. (d) (d) Mach Machia iave vell llii – men men are are bad bad and and wil willl not not obse observ rve e fait faith h towa toward rds s yo you u (traitors), you should not trust them. The Golden Age 1. Ovid Ovid – man man don’ don’tt need need law laws s beca becaus use e it is wri writt tte en in his his natu nature re,, yet yet everyone is safe because conscience is their guard. 2. Sene Seneca ca – in the “pr “prim imit itiv ive e innoc innocen ence ce/s /sta tate te””, men men lived lived toge togeth ther er in peace and happiness, having all things in common, there is no private property; no slavery, no coercive government; no corruption; everyone is free and equal. This primitive innocence was a result of ignorance rather than virtue This ignoran ignorance ce is the source source of social social evils later later on. Such social social evils necessitated necessitated an introduction of regime of law Corruption = a product of avarice, fall of man Judeo-Christian Paradise is the equivalent of the primitive innocence The necessity necessity of human law and coercive coercive state, private private property property and slavery was derived from man’s sinful nature, which resulted from the Fall. Law was a natural necessity after the Fall to mitigate the effects of sin. Consequences of the fall: (a) (a) Famil amily y – repr repres esen ente ted d the the coer coerci cive ve dom domin inat atio ion n of the the mal male e agai agains nstt the freedom and equality of the primitive paradise. (b) (b) Slav Slaver ery y – sins sins is a fit fit subj subjec ectt of of ens ensla lave veme ment nt.. The theory of law 1. Agustine State-law and coercion are not themselves sinful but are part of the divine order as a means of restraining human vices. Due to sin. The hope of mankind is not in the sphere of social reform but rather by the attainment of a commonwealth of God’s elect, a mystical society, which would replace the existing regime dominated by man’s sinful nature. Law is a natural necessity to curb man’s sinful nature. 2. By 13th century There was a change in emphasis due to Aristotelian influences Man’s nature might be corrupt and sinful but he still possessed a natural virtue which is capable of development (Aristotle’s natural development of the state from man’s social impulses) 3. Aquinas •
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The The Nat Natur ure e of of Man Man Man is by nature evil Such nature should be curbed, if not, it will lead to total destruction of man. Law then is the indispensable indispensable restraint upon the forces of evil. Anarchy or absence of law is the supreme horror to be warded of. B. Man is by nature good. People who believe believe in this nature of man seek to find the sources of the ills of man’s present condition. The defect in man’s social environment is the true cause of the evils, which afflict him. The legal system is the source of man’s tribulations. II. The Law and the forces forces of evil A. Whethe Whetherr you you see man as by nature nature evil evil or or good good,, he still still needs needs laws. laws. 1. Man’ Man’s s natur nature e is evil evil thus thus no soc socia iall prog progre ress ss coul could d be atta attain ined ed wit witho hout ut the restraints of penal laws. 2. Man Man is good good but due due to sin, sin, corru corrupt ptio ion n or some some inter interna nall weakn weaknes ess, s, man’s original and true nature had become distorted and thus required for its control the rigors of a primitive system of laws. B. “Idyll “Idyllic ic Prim Primiti itive ve Scen Scene” e” – refer refers s to the the gold golden en age ages s wher where e ever everyth ything ing was in order no external system of legal rules, life is simpler. This served as a ‘pattern ‘pattern for a movement movement toward a return to nature’ nature’ -going back to man’s primitive, unspoiled nature where there is a happier society in which uncorrupted natural impulse will replace coercive regimes. III. Man’s Man’s nature nature is evil evil 1. Chin China a (Leg (Legis ists ts)) – argue argued d that that man’ man’s s natu nature re was was ini initi tial ally ly evi evill and and that that the good ways in which men often acted were due to the influence of
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States is not a necessary evil but a natural foundation in the development of human welfare. Law is a beneficent force, not only in restraining evil but also for setting him upon the path of social harmony and welfare. Law then is not an negative force but a positive instrument for realizing those goals towards which man’s good or social impulses tend to direct him. Man Man is is by by nat natur ure e goo good d (an (anar arch chis istt view viewpo poin int) t) The concept concept of law is based on a wistful wistful primitivism primitivism,, nostalgi nostalgia a of the primeval past. Plato pins his faith in a system of education which will not only produce adequate rulers but will also serve to condition the rest of the population to the appropriate obedience. Adam Smith laissez faire; free play of economic forces which could be assumed to work towards ultimate harmony. coercive law may be used to protect private property (an indispensable feature of free market) Godwin evils of the society arose not from mans corrupt or sinful nature but from effects of oppressive human institutions. Man is capable capable of unlimited unlimited progress, progress, only coercive coercive institutions institutions and ignorance stand in the way. Voluntary cooperation and education would enable all law to be abolished. Bakunin an and Kr Kropotkin State, State, law, law, coercion coercion and private private property property were were the enemies of human human happiness and welfare. Tolstoy Man is universally good; there is no need for law. Maude Remove the law and induce men to believe that no fixed code or judgment should exist; and the only people who will be able to get on at all decently will those who follow the traditional way of life. Marx Law is nothing but a coercive system devised to maintain the privileges of the property-owning class. By the revolution of a classless society would be brought into being, the law and the state would ‘wither away’ as being no longer needed to support oppressive regimes. Looks forward when social harmony will be attuned to the natural goodness of man, unimpeded unimpeded by such environmenta environmentall snares snares as the institution institution of private property. Inna Innate te Good Goodne ness ss and and the the pri price ce of Civ Civil iliz izat atio ion n Man at the primitive level is innately good and that it is the social and political organization of civilized life, which has introduced violence, and disorder which led to systems of legal coercion. Elliot Smith
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most of the friction and discord of our lives are obviously the result of such exasperations exasperations and conflicts as civilization creates. The artificial aim, which is the object of envy and malice, is the source of conflict. Herb Herber ertt Rea Read d The anarchist conceives society as a balance or harmony of groups; the only difficulty is their harmonious interrelation. Universal decentral decentralization ization of authority and simplification of life is essential. Anarchism means a society without arkhos (ruler); it does not mean a society without laws and does it does not mean a society without order. In the simplest form of society, some system of rules is necessary (ex. rules on family relationship, relationship, food-gathering, mating etc.) Such society without rules is not just a society without order but the very negation of society itself.
PERSISTENT QUESTIONS H.L. Hart I.
Law Law is is a prophe prophesy sy – prophe prophesy sy of of what what the courts courts will will do do is is the the law law itself itself..
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Co mp mp o os s it it io ion o f Le ga ga l sy st st em ems rules rules forb forbidd idding ing or enjo enjoini ining ng cert certain ain types types of of behav behavior ior under under pena penalty lty.. Rule Rules s requi requiri ring ng peop people le to comp compen ensa sate te thos those e whom whom they they inju injure re in certain ways Rule Rules s spec specif ifyi ying ng wha whatt must must be don done e to mak make e will wills, s, con contr trac acts ts or or othe otherr arrangements arrangements which confer rights and create obligations cour courts ts to det deter ermi mine ne wha whatt the rul rules es are are and and whe when n they they have have bee been n broken, and fix punishments a leg legis isla latu ture re to make make rule rules s and and abol abolis ish h old old ones ones.. Thr ee ee re cu cu rr rr en en t I ss ss ue ues How How do law law and and legal legal obli obliga gati tion on diff differ er fro from, m, and and how are are the they y relat related ed to, to, orders backed by threats The existence of laws mean that certain kinds of human conduct are no longer optional but in some sense obligatory Laws backed by threats is the essence of law (Austin) How How do law and legal legal oblig obligati ation on diff differ er from, from, and and how how are are they they relat related ed to, to, Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. Laws contains elements closely connected with certain aspects of morality. Justice united law and morality because justice is both a virtue specifically appropriate appropriate to law and most legal of all the virtues Law then is a branch of moraluty or justice and that its congruence with the principles of morality or justice rather than its incorporation of orders and threats is of its “ESSENSE” (definition shared by legal positivists and natural law) What What are are rule rules s and and to wha whatt exte extent nt are are law laws s an affa affair ir of of rule rules. s.
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Rules are different from mere convergent behavior. The latter need not make use of words such as must, ought, and should, which are used in rules. All rules have a penumbra of uncertainty, where the judge must choose between alternatives.
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LAWS, COMMANDS AND ORDERS H.L. Hart Thesis: Austin’s command law theory is not enough to define the essence of law, Hart provides features of the law that would make Austin’s “law” truly a law. I. •
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Does law stem from a wish? A wish that is expressed in an imperative mood is an order. The person addressed should conform to the wish expressed. Au sti n’s C om ma nd Law The or y Laws are orders backed by threats. According to Hart, this is nothing more than a gunman coercing a person to give him his purse. To command is characteristically to exercise authority over men and not power to inflict harm and though it may be combined with threats of harm, a command is primarily an appeal not to fear but to respect for authority. Obedience is compliance to these orders. In these cases, the person who has a power to give orders has a “POSITION OF PRE-EMINENCE”
SOVEREIGN AND SUBJECT H.L. Hart Thesis: What accounts for the relationship between the subject and the sovereign? The habit of obedience does not answer this question. I. •
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Conclusion: the idea of habit of obedience fails to account for the continuity of legal system (mere habits of obedience cannot confer on the new legislator any right to succeed). Habit of obedience does not make sure that the new legislator’s orders will be obeyed (for people must at least accept the rule under which the new legislator is entitled to succeed in order for them to obey the new sovereign) •
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Continuing belief in the consequence of disobedience Commands given by one generally obeyed should be followed not only on the 1st promulgation of order but continuously until the order is withdrawn or cancelled. This is missing from Austin’s command theory.
Law backed up by threats is not sufficient in defining what a law is. Habit of obedience – a person or body of persons whose orders the majority of the society habitually obey and who does not habitually obey any other person or persons. This doctrine asserts that in every human society there exist a relationship between the subject and the sovereign and if this structure is present, we speak of a society. The habit of obedience and the continuity of law Obedience – deference to authority and not merely compliance with orders backed by threats However, the assumptions is that laws are backed up by threats. Criticisms to the habit of obedience: 1. It is hard to characterize obedience to the Rex as a habit or habitual since there is a fact of punishment if said orders were disobeyed. 2. It is possible that there is merely a convergent behavior among the subjects. Convergent behavior, all that is needed are personal acts of obedience. 3. if people are merely obeying because of habit of obedience, and not even having a sense of whether what they are obeying, proper or legitimately demanded, such as situation is too simple to ever to have existed, not even in primitive society. 4. habit of obedience does not render probable the continuity of obeying the successor of a rex when he dies. Habit of obedience does not make sure the continuity in obeying the laws. Note: In explaining continuity of the law, there are use of expressions such as right to succeed, rule of succession etc, which are terms that are not present in the simple legal world of the rex. •
Similarities of statutes/laws and commands backed by threats: it indicates a general type of conduct applies to general class of persons who are expected to see that it applies to them and to comply with it. The usual direction of implication of these laws: if general directions are not obeyed, individuated face-to-face directions have secondary place. Features of Law General It extends to all person within its territorial boundaries All members within the same class are within the range of law except when a narrower class is indicated. Commands backed by threats are addressed to particular person. Laws must be general in order not to defeat the legislator’s purpose.
General Habit of obedience Lacking in the gunman situation. Concept of general orders backed by threats is closer to a penal statue enacted by the legislature but not laws. Supremacy within its territory and independence. This is exercised by the sovereign, which is generally obeyed, supreme and independent.
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Habit and Rules: Common Feature: in both cases, there should be uniform behavior which an observer can record; repeated actions by most of the group. B. salient features: Habit Rules a) convergence of behavior, a) convergence is not enough for a group to have enough to constitute rules a habit b) any deviation need not b) deviations are lapses and be criticized faults that must be dealt with pressure for conformity; deviation from standard must be founded on good reason for making it c) when habit is general, c) for social rules to exist, this generality is observable one must look upon the in the behavior of the behavior in question as a group. Members need not general standard to be know that such general followed by the group as a behavior exist. whole. Social rules has an internal aspect. C. •
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Crucial features of rules which distinguish it from habits should be reflective of the attitude to certain patterns of behavior as a common standard this should display itself in criticism (self-criticism) demands of conformity in acknowledgments that such criticism demands are justified, rules use normative terminology such as ‘ought’, ‘must’, ‘wrong’. Effects of considering Rex word’s as rules: 1. this now transforms the situation as habit of obedience. 2. Such rules then will be accepted, the rex would not be specifying things to be done but he will have a RIGHT to do this. 3. there would not only be general obedience to his orders, but rather, it will be generally accepted that it is RIGHT to obey him. 4. He will now be a legislator and he would be bound by the rules he makes. 5. His words may now be considered standard of behavior and deviations to it are open to criticism; justifies compliance. Such rules shall explain the continuity of legislative authority because: 1. they will be generally accepted by the group during the lifetime of the Rex and after. 2. Obedience will not longer be centered on the individual but to a class of person such individual represents.
Conclusion:
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Even if Rex, whose orders are generally obeyed may be called a legislator, habits of obedience to each succession of the legislators are not enough to account for the RIGHT of the successor to succeed and for the consequent continuity of legislative power because: 1. habits are not normative; they cannot confer rights of authority to anyone; 2. habits of obedience to one individual cannot guarantee succession in a class. This supports the idea that habit of obedience brought about by the characteristic of modern society (people know nothing more about the laws except that they are laws to be followed which disobeyed would warrant infliction of punishment) leaves the subject with no choice but to obey not because he knows the laws are good but rather because he afraid of the penalties. This makes the habit of obedience a WEAK DOCTRINE for failing to take into account the other active aspects like lawmaking, law identifying, etc. IV.
Persistence of Laws Witchcraft Act is an example of familiar legal phenomenon: statute enacted centuries ago may still be law today. This persistence of laws is something that cannot be achieved by mere habits of obedience Question is: is it possible to say that simple conception of orders backed by threats show that persistence of law rests on habit of obedience: Hobbes (echoed by Austin and Bentham) says that ‘legislator is he, not by the authority the laws were first made, but by whose authority they now continue to be laws. •
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Explanation: The reason why past laws are still being followed at present is because the present sovereign recognizes them as laws. Thus, a statute made by past sovereign is not law until it is actually applied by the court in a particular case and enforce with the consent of the new sovereign (THIS IS AN ABSURD IDEA). Again, the idea of persistence of laws based on habits of obedience falls apart. V. •
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Legal limitations to legislative power In the theory of habits of obedience, it can be deduced that there is not such habit on the part of the sovereign. (because there is no other power except him; if he has a habit of obedience, then he would not be a sovereign) This theory asserts then that there are no legal limits to the legislator’s power to legislate. However, he may defer exercising such power to popular opinion if he desires so. Example of legal limits: the constitution Rex may be subject to such limitations but it does not mean that he is already obeying; he merely fulfills the conditions of making valid laws as provided for the said limit.
LAW AND MORALS Dennis Lloyd Thesis: introduces the concept of natural law and legal positivism.
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Law and Religion Modern times: Laws are man made judge according in human terms. Earlier ages: Laws was regarded as having a sanctity which was of divine origin
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Characteristics of laws in the earlier times: law, morality and religion were treated as inevitable interrelated and can be traced to a divine lawgiver (10 commandments) it owes direct origin from human sources but divine aspiration is attributed to human lawgiver treated as mythical, semi-divine, heroic figures. Characteristic of Plato’s Laws: the merit of instituting laws must be attributed to God. The aura of authority of law roots from the feeling that law is rooted in religion: There I MORAL DUTY TO OBEY
That laws depend for its validity on having some legal penalty (Austin) would impress a believer of the classical notion of laws. The story of Orestes illustrates the belief in divine intervention for offenses against the laws and degree of flexibility in the administration of divine justice: results from a system of polytheism where in one god might be set off against another as to mitigate the rigour of the law.
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source of moral law rests in the authority of those whom can persuade themselves and other of their inspiration scriptures can only be interpreted by some people; there are limitless interpretations 3. justification of ‘Credo quia absurdum’ – one always resort to faith and not to rationality. rejection of an approved construction of the law is regarded as renunciation of the will of God
GREEK INFLUENCES powerful attachment to rationalism – belief that the physical and moral order of the world are based on rational universe. Modern belief in scientific laws Such belief in the human reason entails the idea of moral law of a rational kind (derived from human reason) Validity and existence of man-made laws are not directly controlled by a higher law of reason Tendency of Greek thought: to recognize human law, whether its origin in part to divine or semi-divine, as possessing an autonomous position in human society. •
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The Moral duty to Obey the Law Hebrews – human law that contradicts divine law is invalid. Human law should be obeyed only if it corresponds to the divine law. 2. Greeks -- man has moral obligation to obey the law of the sate even if he believed it to be wrong or immoral. (exemplified in Plato’s Crito through the speech of Socrates: following the laws of the state is like an agreement, no one can just break said agreement. The law even if unjust must be followed because to live according to the law is the highest good/morality.) Plato refuted this idea: he argued for the identity of the law and morality but the identity not based on blind faith but on human wisdom and reason. 3 points in Greek position: (a) obedience to moral law is the highest morality (b) moral law, independent of state law may show that the human law may be immoral or unjust (c) however, this moral law will never override the law of the state. Note: the citizen can convince the state of its moral error, if he fails, then he is still his bound to obey the law of the state. 1.
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Hebrew and Greek inf luences
HEBREW INFLUENCES one God (rejected polytheism) which will dictate the moral pattern of all man kind and would inflict punishment to those who would disregard his decree. Kings are lawfully anointed by the Lord; enjoys divine sanctity Moral law is revealed through prophets who establish a DIVINE ORDER OF MORAL LAW: scope and decrees rested not on the affirmations of rulers and priests but those individual chose by God Man made laws cannot not stand validity against divine laws Laws are equated with morality for the ONE TRUE LAW is the Law that embodied God’s will. LAW simply means the moral and religious law which is laid down by God or developed by divinely inspired human beings This can be found in the post-prophetic Jewish state and early stages of Calvanism where Laws and morality are one and no recognition of laws can be granted if it is lacking divine inspiration. Thus, conflict between human laws and moral laws are resolved by treating all valid human laws as mere expressions of the moral law. •
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DANGERS OF HEBREW CONCEPTION: 1. triumph of rigid orthodoxy 2. anarchy and imposition of certain individuals (such is the case of Anapabaptist in Germany during the early time of reformation)
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The rel at ion o f l aw t o mo ra ls Hegel (influential to totalitarian regimes) – There is moral duty to obey the law and the individual cannot just convince the state that it is immoral or unjust since the state itself represents the very embodiment of morality. The individual is just submerged in the higher reality of the state which is more superior in wisdom. Democrats and Anti-totalitarians – although there is moral duty to obey the law, in case there is conflict between law and morality, morality both
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justifies and requires obedience (ex. Nazi regimes – a positive law that contradict moral law) This brings reason why modern jurist believe that there can be no total identity between law and morality. Common territories between law and morality (a) both are concerned to impose a standard or conduct without which human society will not survive. (b) Both use normative language (c) Both law downs duty or what man ought to do.
Where law and morals diverge ( a) mo ra l l aw m ay no t b e e mbo die d i n p opu la r s en tim en t u nl ike positive law (b) Moral law may create more evil if supported by positive law (ex. Wolfenden Report: urging the offence of homosexual relations between consenting male adults in private – Lawrence vs, Texas, to punish this would encourage more evil like blackmail) (c) Non-intervention of law: libertarian proposition of Mill: law should not intervene in matters of private moral conduct more than necessary to preserve public order and protect citizens. How then can moral standards be ascertained? Appeal to the “ordinary reasonable man in the jury box (man on the Clampham Omnibus) (Mill) IV. Examples: bringing the law into contact with morality A. What degree if cruelty will warrant ‘divorce’? the test is whether the conduct if so bad that the other souse should not be called upon to put up with it. B. Ladies Directory Case: the jury may create new offenses from time to time in accordance with the needs of public morals which vary from time to time. V. 3 vital aspects in which morality impinges upon the law
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because morality is itself merely what the law lays down. This idea is propounded by: (1) Hobbes – there is moral duty to obey the law; morality means nothing more than obeying the law (2) Hegel – theory o f m oral s uperiority o f t he s tate o ver individual thus individual can claim no higher right than to obey the law of the state. 2. to recognize than man-made laws and the moral law each enjoys a realm of its own but moral law is a higher law and thus provides a touch stone for the validity of merely man-made laws. Conflicts need to be resolved in favor of moral laws (natural law theory). Note: this may be said to be a matter which must be left between God and the unjust ruler thus it is still the citizens’ duty to obey the law. 3. There is the approach which treats the autonomy of each of the spheres of law and morality and exclusive so that neither can resolve questions of validity save in its own sphere (known as legal positivism) (a) validity of rules depend solely on legal criteria just as moral validity can be applied in relation to a system of morality. (b) Those who support this view take a pragmatic view of moral law, basing it on principles such as utility, expediency, tradition or custom (c) Any conflict between the two cannot impugn the validity of manmade law or alter legal obedience. (d) Conflicts may be resolved in accordance with the dictates of one’s conscience.
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the idea of ‘guilt’ in criminal law is linked with the idea of moral responsibility (morals then reinforce the authority of the law and duty to render obedience to decrees) 2. ‘responsibility’ in law is treated as excluding the possibility of guilt if there are circumstances of excuse which causes us to adjudge the accused not morally implicated (ex. if the accused is insane, not knowing between right and wrong) 3. in deciding upon the punishment to inflict. Note: this goes to prove that law needs, in order to enjoy full authority, to be buttressed by moral convictions of the community – law and morality are interrelated. VI. Conclusion: Three main attitudes, which may be adopted towards the possibility of divergence between laws and morals. 1. law and morals must necessarily coincide whether because: (a) the moral law dictates the actual content of human law (Hebrews or Calvanist theocracies) – this leads to the proposition that in effect, only the moral law is valid and nothing that contradicts the moral law can be binding.
LEGAL ENFORCEMENT OF MORALITY Kent Greenwalt Central Question: Should legislature enforce morality? Central theme: It is a need to avoid reductionist simplicities when questions are put whether the law should enforce morality. I. A. 1.
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Legal enforcement of moral norms against causing harm Morality will always include restraints against harming people. H. L. H art - - l aw a nd m ora li ty w ill c on st ra in m uch o f t he s ame behavior. That does not mean however that all aspects of morality that concerns preventing harm to other will be enforced by law (ex. lies). Joel Feinberg – ‘harms’ are “setbacks” to interest that are in some way wrong.
Note: Principles guiding legal regulation must include moral judgments. However, even if moral judgments infuses determinations of harms, it doesn’t follow that legal rules enforce reality because there are moral evils that of not include harms to others which must not be regulated by law. II.
Legal requirements to perform acts that benefit others (do you have a duty to rescue others?)
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A.
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Performing acts that would benefit others is a moral duty yet, people may abandon this moral duty and yet do not incur criminal or civil consequences (no legal duty). B. Man has no legal duty to perform acts that is benefiting to others because law should not enforce morality (unconvincing according to greenwalt). In morality, there is big difference between act and omission, not so with law. People have general duties to act for the benefit of the public (pay taxes, testify etc); there is not doubt then that people are required tom act to avoid harm and to contribute to the common welfare. C. Those who support the idea of liability believe: 1. others may do the job 2. t he need to help ot hers is too vag ue 3. such duty imposes inappropriately in the autonomy citizens D. Views on this problem: 1. Consequentialist perspective --, these problems are matter of degree: there is legal duty to help if it has only slight imposition to one’s projects. 2. Deontological perspective –Moral duty to help exist provided that it is imposed by the law (if there is legal duty). Ergo: imposing duties are unwise, but it involved no breach of any defensible principle that law should not enforce morality.
Offense at religious practices that causes no secular harm, cannot be a basis for restriction in a country that recognizes religious liberty. 3. Offense at non-religious practices because the practice violate some people’s right ma not be a basis for restriction in a country that values religious freedom V. requirements to refrain from acts others believe are immoral. Question: Can legal restriction be justified because acts are regarded as immoral, apart form harm (can legal enforcement of morality be justified?). A. Law should enforce morality: 1. objective morality should be punished 2. that a community properly punishes what it regards as immoral, without more; 3. that a community may preserve its moral structure without more 4. people have a legitimate interest in preserving structures of life familiar to them 5. liberty in self-regarding matters may weaken a community and dissolve bonds of other-regarding morality, to the detriment of the people in general.
III. requirements to refrain from acts that cause indirect har to others On Liberty -- Mill wrote that the only purpose for which power can be rightfully exercised over any member of the state, against his will, it to prevent harm to others because when people harm others, this affects others through their sympathy and interest. When an action will certainly cause harms to others, such action shall be the basis of regulation. Future harms (a) consequentialist – restraint in the initial stage is more effective (b) non-consequentialist – man has right to liberty thus people should not be restricted just because others lack control and will end up doing harm. When there is risk that one will become a burden to the society: (a) consequentialist: value of liberty might somehow be weighed against likely cost III. Requirement to refrain from actions that hurt oneself. A. Mill – supports non-restriction because a person’s own good, wither physical or moral is not sufficient warrant for society to exercise power over him. In all personal conducts, his independence is absolute. There greatest breach against someone’s autonomy involves coercion against one’s own rational, reflective judgment. B. John Feinberg – someone’s own physical, pshychological or economic good should not be a basis for criminal prohibitions against voluntary behavior. IV. Requirements to refrain from acts that offend others Principles concerning offense: 1. If the offended for not have a moral objection, behavior should be allowed (People’s liberty should be upheld)
VII.
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2.
VI.
Liberal democracy – the state should be neutral among conceptions of the good life, thus, the state has no business punishing objective morality but behaviors damaging to others and to one-self may be punished (ex. having sex with animals.) Why does the law should enforce morality: because members of the community have some interest in preserving forms of life familiar to them. But then, the answer still depends on the communities depending on their views about trust, morality etc.
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NATURAL LAW THEORY Brian Brix I. •
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Trad it io na l Nat ural Law Theo ry Argues about the existence of higher law which is a standard by which other laws are adjudged. This law like standard can be derived from divine revelation, religious text, a careful study of human nature.
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Themes: natural law is: a. unchanging over time and does not differ in different societies b. every person has access to the standard of this higher law by use of reason c. only just laws ‘really deserve the name’ “law” d. in definition of the term law, there infers the idea and principle of choosing what I just and true. A. Classical Writers The source of higher standard is inherent n the nature of things (a passive God) •
Cicero Provided for the themes of natural law (see above) •
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Ambiguity in the word natural (natural because: 1) derived from human reason, 2) accessible to out natural faculties or 3) derived or expressed in nature or 4) combination of the 3)
B. Early Church Writers Source of higher standard is the divine being who actively intervenes in human affairs Aquinas Four different kinds of law: eternal law, natural law, divine law, human positive law Human law is derived from natural law. Derivation aspects (a) sometimes natural law dictates what the positive law should be (like logical deduction) (b) natural law leaves room fro human choice (derivation is through determining general principles – derivation in the sense of making specific or concrete) Characteristics of just positive law: (a) consistent with the requirements of natural law (b) ordered to the common good ( c) l aw giver do es not exc eed it s a ut ho ri ty (d) law burdens are imposed on citizens fairly (like Rawl’s justice is fairness) Unjust laws – failure with respect to any of the criteria; citizens have no obligation to obey these laws. (unjust law in not law) Interpretation of “unjust law is not law” (a) immoral law is not valid at all (Blackstone, Plato, Aristotle, Cicero, Agustine) criticism by Austin: such analyses of validity is of little value because even if an act is valid under natural law, if it is prohibited by positive law, one will still be punished for doing the said act. (b) unjust laws are not laws in the fullest sense. Means that it does not carry the same moral force or offer the same reason for action as law consistent with “higher law” To say that unjust laws must not be obeyed because they are not laws in their fullest sense is controversial: there are often reasons for obeying unjust laws: (a) if the law is part of a generally just legal system (b) public disobedience of the law might undermine the system **Aquinas’ citizens are not bound to follow unjust laws if the law can be resited without scandal or greater harm. •
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D.
Perspective Cicero, Aquinas and Grotius – all concerned with what legislators and citizens and governments ought to do or could do on good conscience. John Finnis First Level: There are a number of distinct but equally valuable intrinsic goods (that is things one values for their own sake) = basic goods a) life (or health) b) k no wled ge c) play d) aesthetic experience e) sociability f) practical reasonableness g) r el ig io n Second Level: Because there are variety of basic goods, with no hierarchy or priority among them, there must be principles to guide choice when alternative courses of conduct promote different goods (difference of Finnis with utilitarianism. Utilitarian believe that all goods can be compare according to their value in a single unit – ex, in promoting happiness) Morality then offers a basis for rejecting certain available choices; one choice would remain (differ again with utilitarians: they talk of the best choice) The move from the basic goods to moral choices occurs through a series of • intermediate principles (a.k.a BASIC REQUIREMENT OF PRACTICAL REASONABLENESS) Intermediate principles: 1. end never justifies the means (where the chosen means entails intending to harm a basic good) 2. one should forma rational plan of life 3. have no arbitrary preference among persons 4. f os ter co mmo n goo d of th e co mmu ni ty 5. have no arbitrary preference among the basic goods. Law enters as a way of 1) affecting some goods and making it easier to obtain goods Persons have obligation to obey just laws (like Aquinas); laws which are unjust are not law in fullest sense of the term, one has no obligation to comply. •
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C.
Early Modern Europe Grotius A higher law against which actions of nations, law makers could be judged. Separation of natural law from the divine being (already evident in the writings of Gregory of Remini) We all have reason; this alone makes us obey natural law. •
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Modern Natural Law Focuses more narrowly on the proper understanding of law as a social institution or a social practice. A response to legal positivism.
A.
B.
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Fuller – no sharp separation between law and morality; rejected the oneway projection of authority (government makes laws; citizens obey; law is a form of guiding people; a means to an end Internal morality of law or principles of legality (series of requirements): in order to consider something law, it must meet a certain criterion or threshold (based on function and not content): law should be general;
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2. 3. 4. 5. 6. 7. 8.
must be promulgated that citizens might know the standard to which they are being held; non-retroactivity; must be understandable; not contradictory; should not require conduct beyond the abilities of those affected; remain relatively constant; should be congruence between the laws announced and their actual administration.
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•
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**His theory is procedural, not substantive natural law DWORKIN – difference between legal rules and legal principles (moral propositions are grounded past official acts – produces different results •
MOORE: legal terms and moral concepts all have meaning determined by the way the world is, not by beliefs WEINREB: legal formalism: law has immanent moral rationality; one can speak of essece of nature of law in various parts of doctrines within the law
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GERWITH – engaging in practical reasoning commitment to moral principles
II. 1.
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Two central beliefs: what counts as law is fundamentally a matter of social fact or convention (social thesis) there is no necessary connection between law and morality (separability thesis)
II.
Jurisprudence: method and subject-matter
A.
H.L.A. Hart •
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adopted its method of “conceptual analysis”: jurisprudence aims to give analysis of the uses to which the concept of “law” is put in various social practices Two features of the concept: (a) Of all the various norms, only some subset are norms of law (b) “Legal” norms provide agents with special reasons for acting. Reasons they would not have if the norm were not ‘legal’ Concept of law:
Ronald Dworkin Objections to positivism: moral principles can be legally binding in virtue of the fact that they express an appropriate dimension of justice and fairness. Distinctions: (a) Conditions of legality (or legal validity) (b ) Mean ing of a va li d leg al rul e He does not claim that the validity of legal principles depends on their morality, but he believes that in interpreting the meaning of valid legal rules it is often necessary to consult moral principles. Does not claim that morality is a criterion of legality Jurisprudence must provide a credible account of certain features he finds in adjudication-ex. Judges disagree Central figure: law’s interpreter: the appellate judge Raz
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Bay Leveld and Brownsword – Gerwith’s analysis requires rejection of legal positivism in favor of equation of laws with morally legitimate power.
LEGAL POSITIVISM Coleman and Leiter
1. Criteria of legality 2. Nor mat iv it y o r a ut hor it y of l aw Uses descriptive sociology, that is an analytic classification of the uses to which the concept is actually put in real social practices
Sociological inquiry can be detached from the linguistic one. We do not want to be slaves of words. Our aim is to understand society and its institutions. Legality and authority Hart Difference between the way law is and the way it ought to be Criteria of legality a. “restrictive” construal- (Raz) it can never be a criterion of legal validity that a norm possess moral value, it must be some social fact (ex. Source: legislature) b. “inclusive” construal- “incorporationism”, positivism is committed to 2 weaker claims: i. not necessary that in all legal systems that for a norm to be a legal norm, it must possess moral value (Coleman:Negative Positivism) ii. what norms count as legal norms is a matter of social convention (can include convention/agreement among relevant official to make the moral value of a norm a condition of its legal validity • •
Note: Even if there may be an overlap between morality and law, it does not violate the separability thesis because thesis involves only a claim about the conditions of legal validity. 2. A practical authority is a person or institution whose directives provide individuals with a reason for acting. (in compliance thereof)
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*in order to be law, a norm must be required by morality. Morality has authority in the sense that the fact that a norm is a requirement of morality gives agents a reason to comply with it. If morality has authority, and legal norms are necessarily moral, then the law has authority too. Norms are the compelling reasons why agents follow the law, so if norms are required for the authority of morality, and norms presupposes the authoirty of the law, then if morality has authority, so is law..so its like the norms are the requirements for authority of law and morality.
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1. 2. 3.
C. D.
*For law to be authoritative, it must provide citizens with a reason for acting that they would not otherwise have. If all legal requirements are moral requirements, then the fact that a norm is a norm of law does not provide citizens with an additional reason for acting. (its like not giving any reason at all because if laws and morals are same, then what pushes one person to follow morality will be the same reason he would use to follow law.) then it would fail to account for the authority of law.
6. 1. 2.
IV. Positivism: Austin v. Hart
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John Austin will or command theory of law. Law is the order of a “sovereign” backed by a threat of sanction in the event of non-compliance. Norm is law only if it is given by the sovereign. Legality is determined by its source; criteria of legality are matters of fact, not value Its normative force is the threatened sanction. Without sanctions, it would be just like requests. Sanction is the reason to act as desired by sovereign.
B.
Authority Laws
Rule recognition Expands Liberty
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Austin Individual who has secured the habit of obedience of Sanctions
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Liberty limiting
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Note: How can law motivate compliance in the absence of sanctions.
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5. Hart law consists of rules of two distinct types: primary rules-limit or expand liberty secondary rules- about the primary rules ( a) c reat e a po wer to legi slat e ( b) c reat e a po wer to adju di cat e (c) a rule of recognition-not a power-conferring rule. Sets our conditions that must be satisfied in order for a norm to count as part of the community’s law. Three kinds of legal rules:
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Difference between
What people do as a rule (The way law is) What they do when they are following a rule- rule provides them with a reason for doing what they do; Rules, when accepted from an ‘internal point of view” provide reasons for acting apart from the mere reasons of prudence that threats supply. (The way it ought to be) Social rules, that is normative practices whose content and normative force depend on actual behavior. Content of social rule is fixed by behavior, its normativity depends on acceptance. Critical Morality- need not describe or correspond to the prevailing practice, it may be inconsistent with practice. Have normative force in such a way that it does not depend on practices but their force is independent of social practices. Social rule-to fit Austin’s habits of obedience and critical morality. 7.
A.
HART vs. AUSTIN Hart Sovereign sovereign is not a person but office
Those that obligate Those that enable Rule of recognition that sets out validity conditions. Whenever there is law, there are primary rules that impose obligations and rule of recognition so as to consider it as legal rule. Law consists in rules, social rules. Social rules can be normative or descriptive. Descriptions of what individuals are in the habit of doing (descriptive). Reasons for doing what they do (normative).
The authority of law
Two distinct views about the role of social rule: law is authoritative because it consists of social rules law’s validity does not depend on the existence of social practice. (HART) law exists even without the existence of a social rule. Laws exists to promote social practices. Being a social rule is not a necessary condition of legal validity. If law is authoritative, it cannot be because all laws are social rules. He abandons the view that a ll laws consists of social rules. The rule of recognition is a social rule whose authority being accepted from the internal point of view. Laws derive their being valid under the rule of recognition. Authority of rule of recognition (certain criteria as standards for assessing validity) is transferred to the law whose legality depends on the validity under the rules of recognition. Two problems in legal authority: (a) even if we accept that the rule of recognition is authoritative being a social rule, it does not follow that the rules valid under the rules of recognition are authoritative. (b) authority of the rule of recognition does not derive from its being a social rule or something that is accepted from an internal point of view, if this is so, what makes a norm reason giving is the fact that majority of individuals treat it as such.
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Social rules have two components: (a) description of what individuals do as a rule (b) heir being accepted from an internal point of view if not from an internal point of v iew, it can be of convergent behavior convergent behavior provides an instrumental reason of morality for treating the law as authoritative. Example. One may not know what to do,so he does acts to coordinate with what other people do. One person is motivated to do the right thing but is uncertain of what morality requires of her, if she believes that others are similarly motivated, then she has a reason to do what they are doing, not to coordinate but assuming that people do what morality requires, following their lead. Norm cannot be a social rule unless there is an accepted from an internal point of view. Such that it is a necessary condition of norm’s being a social rule. But convergence is the normative.
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Judicial Discretion •
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B. C. 1. 2. 3. 4.
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Dworkin describes Hart’s position in 4 tenets: rule of recognition model of rules, all legally binding norms are rules separability thesis judicial discretion-constrained authority of judges to appeal to standards other than those prescribed. Judges will appeal to moral principles which are binding legal standards, because judges use them. They are part of the law because they express a dimension of justice and fairness suitable to law. DWorkin, contrary to Hart: Law is not simply a matter of rules, includes moral principles Mo ra l p ri nc ipl es ar e l aws t ho ug h n ot i den tif ied un der ru le of recognition Moral principles are law, fir they have dimensions of justice Instead of discretion, judges appeal to binding legal standards that are not rules,
A. 1.
Hart why is judicial discretion unavoidable? Rule of recognition- sets forth the conditions necessary for a norm’s counting as part of a community’s law. Open texture of language NOTE: if no norm satisfies the rule of recognition. Judge has to go beyond the non-legally binding standards. Even if there are binding legal norms, discretion may still be required. Legal rules are expressed in general terms. Judge must exercise discretion and in effect legislate meaning. They appeal to moral principles and social policies. There is distinction between easy and hard cases that parallels the distinction between the core and penumbra of a concept.
Judges appeal to moral principles and social policies that are not themselves binding legal standards. As other positivists, allow moral principles to be legally binding standards provided their being law depends on their satisfying a condition in the rule of recognition. It is not their morality that makes them law but the fact that they meet the standards under rule of recognition, not their truth. Law as a rule-governed (normative) practice, where rule-governed is always intended to be broadly construed as to include customary practices and other norms. The legality of those norms be established by rule of recognition.
B.
Incorporationism legality
and
the legality of moral norms is not a function of their morality, but their validity under the rule of recognition the rule of recognition asserts that certain norms are law provided they meet the demands of justice. Incorporationism depends on a rule of recognition incorporating morality into law. Dworkin (a) rule of recognition that incorporates morality into law cannot be a social rule, which requires a pattern of convergent behavior. (b) denies that legal positivists can be incorporationists. Why? ( 1)
A ru le o f rec ogn it io n t hat in clu des ref eren ce t o mo ral principles will violate the separability thesis
( 2)
Po sit iv ism is c omm itt ed t o t he id ea t ha t w hat m akes something law depends on its history or the form and manner of its enactment. Legality, for positivists, cannot depend on the substantive value of a norm or the truth of a moral principle
(3)
Positivism is committed to the rule of recognition serving an epistemic function (by consulting it, individuals can determine for themselves what the law is and what it requires of them)
(4)
Incorporationism allows morality into law in a way that makes it impossible for the rule of recognition to serve its epistemic function.
(5)
Positivism is committed to the rule of recognition being a social rule. Incorporationism renders the rule of recognition incapable of being a social rule.
Coleman
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negative positivism- no necessary connection between law and morality. However, this does not prevent rule of recognition from incorporating morality into law. It only prevents positivism from claiming that law must necessarily incorporate morality into law. Is positivism committed to pedigree, historical or non-contextual criteria of legality? Incorporationism does not entail the absence of a pedigree. Under such rule of recognition, it is the fact that a moral principle is cited that contributes to its legality, not the fact that the principle is true or expresses a dimension of justice of the like. Does incorporationism undermine positivism’s commitment to the idea that the rule of recognition serve an epistemic function? (Hart) a rule of recognition should allow individuals to determine which norms are binding law; the rule of recognition is, after all, a rule of recognition. A rule that makes morality a criterion of legality fails to reduce uncertainty.
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two different epistemic functions that rules of recognition might serve: (a) validation-- standard in virtue of which officials validate the legality of norms (b) identification 10. Raz’s theory authority
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Authority of rule of recognition
depends on the convergent behavior of relevant officials nothing in this account is incompatible with incorporationist’s conception of legality B. Authority of rules subordinate to it ruled out Austin’s sanctions and Hart’s term of the internal point of view C. Joseph Raz his authority is incompatible with incorporationism account of authority presupposes the ‘sources thesis” that a norm is law only if it has a social source Can incorporationism be reconciled with the razian account of authority? reason is the ‘right reason’ that applies to us in settling the issue of what we ought to do. To say the law is a practical authority is to say that it provides for a different reason for acting. Austin- law provides for reasons: sanctions Hart- sanctions do not adequately explain the claim that law makes to being a practical authority, a claim whose truth or falsity would not hang on whether particular legal directives were backed by threats. Relationship between the reasons law supplies and those that already D. apply: • •
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NOTE: The claim to legal authority is based on the thought that the reasons law provides replace the reasons that otherwise apply to us because acting on the former will enable us more fully to comply with the demands of the latter than we will by acting on the basis of them directly. However, there are areas in which we have expertise, and law commits mistakes, law’s authority therefore will be incomplete at best. 11. Incorporationism authority
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The reason law applies might be generally unrelated to the demands of right reason (Hart and Austin) They might conflict with the demands of right reason if law’s reason are in conflict, it would not be rational for individuals to act on the basis of law’s reason They might generally coincide with those demands. f merely affirms, it does not provide us with a reason for acting different Normal justification thesis: in order for law to be a practical authority, it must be the case that for each agent for whom law is an authority, that agent would be more fully or satisfactorily comply with the demands of right reason that apply to him by acting on the basis of the reasons law supplies he would do otherwise. Authority of law depends on its efficacy How can one do better following the demands of right reason provided by law instead of following his own right reason? (a) Coordinat ion funct ion we are more likely to succeed of we follow legal directives that laws provides than we would be by acting on the basis of the reasons we have. Our individual efforts, even well motivated would be overcome by problems that only legally created welfare state can overcome. (b) Special Epistemic ro le we would probably be better if we follow the judgments of officials because they know better having a position. Their legislative decisions are reached after gathering information that we are not in a position to secure.
• •
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Raz believes that account of authority presuppouses “sources thesis”, that a norm is law only if it has a social source Incorporationism allows that sometimes the legal validity of a norm could depend on its moral truth rather than on its having a social source Sources thesis incompatible with incorporationism Dworkin and Raz (incorporationists) believe that legal positivism cannot allow incorporationism. Incorporationists and Dwrokin believe that modern legal democracies incorporate moral principles into law without regard top their social source, contrary to Raz. Incorporationists claim that incorporationism is established through rule of recognition, while Dworkin says it is through the practice of adjudication
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In determining whether a norm is a valid law, one would look into the underlying justificatory reasons, then it would be incompatible with treating the law as an authority, because to treat law as an authority, it so forego assessing the justificatory reasons. Authority presupposes foregoing precisely the sort of inquiry incorporationism appears to invite. But that really does not provide us the reasons that justify the law. Argument against incorporationism: of the law is to be an authority, the rule of recognition must serve an identification and not merely a validation function. It must serve an identification function: Why? Law is an authority o only if individuals acting on the basis of it will do better than following their own right reason. For individuals to act on the basis of law’s directives, they have to be aware of what the law is, and what it requires of them. It must make the law accessible to them. It must fulfill the epistemic function of identifying what the law is. However, moral reasons on identifying the rule as law need not coincide with its justification. If moral principles are essential to the practice by which ordinary o citizens come to recognize which of the community’s norm count as binding law, then the rule of recognition will not discharge its epistemic function. Hart- grants the centrality of the rule of recognition’s epistemic function and that incorporating morality into law makes it more uncertain. The exclusion of certainty is not the goal for rules of recognition. There should be a margin for uncertainty, so that an informed judicial decision can be made, and so that its decision can be identified and rationally settled. Positivists might argue that Raz is mistaken to think that authority of law requires that there be no uncertainty in corporationism. Other incorporationists questions whether incorporationism really renders law uncertain. (coleman) Argument for authority depends on citizens to identify and act upon the law that applies to them.. this authority may or may not be the rule of recognition. If citizens do not use the rule of recognition, it must be the rule of identification, what is required of it is that it be a reliable indicator of what turns out to be a valid law. It also might be that they turn to laws only if it satisfies the “sources thesis.” In that case, the sources thesis would only be a constraint on the authority of the law and not on its validity. Incorporationism then would be compatible with validity. The sources of thesis would be a condition of legitimate authority and not a constraint on the standards of legal validity. All positivists really require is that there exist some practice that enables ordinary citizens reliably to determine the law, no necessarily the rule of recognition. Sources thesis then would impose a constraint on the rule of identification and not the rule of validation. For there to be a law, there must be a validation rule- one that is broad that incorporationism allows. For law to be authoritative, there must be an identification rule-one that may not be so broad.
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The authority of rule recognition depends ultimately on considerations of co-ordination and knowledge. (link between individual actions and convergent behavior). As regards authority of rules subordinate to the rule of recognition, the link is between the reasons that already apply to agents and the agents’ grounds for believing that the laws’ reasons provide a better avenue for complying with them. Central to positivism’s analysis of legality is the institutional nature of law; central to its analysis of authority is the idea of efficacy.
JUSTICE AND FAIRNESS JOHN RAWLS
I.
The Role of Justice A theory however elegant and economical must be rejected or revised if untrue Laws and institutions no matter how efficient and well-arranged must be reformed or abolished of they are unjust Each person possess an inviolability founded on justice that even the welfare of society as a whole cannot override. The concept of justice must not be based on the utilitarian ideal: greater good for the greater number (a) the loss of freedom of some is cannot be made right by a greater good shared by others (b) sacrifices of the few are not outweighed by the larger sum of advantages enjoyed by many Rights secured by justice are not subject to political bargaining. Truth and justice (first virtues of human activities) are uncompromising. Is injustice tolerable? Yes only when it is necessary to avoid greater injustice. •
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II. The main Idea of the Theory of Justice B. Principles of justice for the basic structure of the society are the object of the original agreement. •
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Principles of justice: principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their associations. These principles regulate all further agreements
C. Justice as fairness: a way of regarding the principles of justice; conveys the idea that principles of justice are agreed to in an initial situation that is fair. (a) In Justice as fairness, the original position of equality corresponds to the state of nature in the traditional theory of the social contract (b) Essential features of the state of nature:
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(1) (2) (3)
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no one knows his place in the society, his class position or social status no ones his fortune in the distribution of natural assets and abilities, his intelligence and strength. Parties do not know their conceptions of the good
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D. Veil of ignorance: ensures that no one is advantaged, or disadvantaged in the
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choice of principles by the outcome of natural chances or the contingency of social circumstances.
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Principles of justice are chosen behind said veil of ignorance, thus, such principles are the result of fair agreement or bargain. The original position is the appropriate status quo thus the fundamental agreements reached in it are fair. Steps in formation of justice as fairness: (a) It begins with the choice of the first principles of conception of justice. (b) Choosing a constitution and legislature to enact the laws It is presumed that these steps are in accordance with the original agreements initially agreed upon. The general recognition of the fact that everyone views their arrangements as meeting the stipulations and their choice of principles would provide the basis of public acceptance of the corresponding principles of justice. In this sense, the members of the society are autonomous and the obligations they recognize are self –imposed.
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Parties in the initial situation are rational and mutually disinterested. Concept of rationality must be interpreted as taking the most effective means to given ends (standard of economic theory)
Principle of utility is incompatible with the conception of social cooperation among equals for mutual advantage. Principle of utility requires lesser life prospects for some simply for the sake of a greater good enjoyed by other Each desires to protect his own interest, no one will agree to an enduring loss for himself in order to bring about a greater net balance of satisfaction. •
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III. Two principles of justice I. Each person is to have an equal rights the most extensive basic liberty J.
G. Two principles persons may choose in the initial situation:
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(a) Equality in the assignment of basic rights and duties (b) Social and Economic inequalities, are just only if they result in compensating the benefits for everyone, especially for the least advantaged members of the society There is no injustice in the greater benefits earned by a few provided that the situation of persons not so fortunate is thereby improved.
The original position and justification The original position is the appropriate initial status quo, which ensures that the fundamental agreements reached in it are fair. How to arrive at the veil of ignorance: one excludes the knowledge and contingencies, which sets men at odds and allowed them too be guided by their prejudices. Parties in the original position are equal: all have the same rights in the procedure for choosing principles Equality between human beings as moral persons as creatures having a conception of their good and capable of a sense of justice. • Reflective equilibrium: an equilibrium wherein our principles of judgments and the premises of their derivation (conditions) coincide. The original position represents the attempt to accommodate within one scheme both reasonable philosophical conditions on principles as well as our considered judgments of justice. Conditions embodied in the original positions are ones that we accept. •
E. Features of Justice as Fairness •
compatible with a similar liberty for others. Social and economic inequalities are to be arranged so that they are both (a) reasonable expected to be to everyone’s advantage (b) attached to positions and office open to all. These principles pre-suppose that the social structure can be divided into two or more or less distinct parts. basic liberties that are required to be equal those that specify and establish social and economic inequalities – applies to the distribution of income and wealth and to the design of organizations that use different kinds of authorities or chains of command. While distribution need not be equal, it must be accessible to all and must be to everyone’s advantage. •
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H. Justice as fairness is an example of a ‘contract theory’
Like all other contracts, it consists of two parts: (a) an interpretation of the initial situation and of the problem of choice posed (b) a set of principles which would be agreed to. As a contract the principles of justice may be conceived as principles that would be chosen by rational person In this way, conceptions of justice may be explained and justified. As a contract, the division of advantages must be in accordance with principles acceptable to all parties. As a contract, parties have knowledge of the principles that they follow (public nature) It must be noted however that justice as fairness is not a complete contract theory for the contractarian idea can be extended to the choice of an entire ethical system including all the virtues. Justice as fairness only considers principles of justice and others closely related to it.
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These principles are to be arranged in a serial order with the first principle prior to the second. This ordering means that a departure in the liberties required by the first principle cannot be justified by greater social and economic advantages. Distribution of wealth and income, and the hierarchies of authority must be consistent with both the liberties of equal citizenship and equality of opportunity. Conception of Justice based on the two principles:
All social values – liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any, or all of these values is to everyone’s advantage. What is injustice? Injustice is inequality that are not to the benefit of all.
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Final Notes: In justice and fairness, men agree to share one another’s fate Institutions which satisfy these two principles (which is a fair way of meeting the arbitrariness of fortune) are just.
QUESTIONS OF MAN’S FREEDOM Fr. Jose A. Cruz •
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Primary goods: things that a rational man is presumed to want (rights and liberties) Social primary Goods: other primary goods such as health and vigor, intelligence etc. The principle of justice as fairness is not just another principle of utility: Principles of utility would have us maximize the sum of expectations of representative men (weighed by the number of persons they represent); and this would permit for the losses of some by the gains of others. The principles of justice require that everyone benefit from economic and social inequalities.
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The principles of justice express an egalitarian conception of justice Difference Principle and the Principle of Redress
K. Principle of redress Undeserved inequalities call for redress (inequalities of birth and natural endowment) In order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into less favorable social positions. The idea is to redress the bias of contingencies in the direction of equality. The Difference Principle Not the principle of redress It does not require the society to try to even our handicaps as if all were expected to compete on a fair basis in the same race. But this principle would allocate resources in education in order to improve the long-term expectation of the least favored. Thus, although it is not the same as the principle of redress, it does achieve some of the intent of the latter principle. We are led to this principle of we wish to set up the social system so that no one gains or loses from his arbitrary place in the distribution of natural asses or his initial position in the society without giving or receiving compensating advantages in return. •
Freedom: cannot be explained or defined on the level of everyday ordinary experience. But freedom involves a whole process leading towards a decision called “choice” Two aspects of Free Choice (a) Every choice is based on a value, a perfection for the self to be attained or exercise (b) Value is never to be taken in isolation. T must integrate within an IDEAL (can be self-image) towards which the total self aspires to become. Two-fold level of free choice (1) horizon of choices or possible choices (horizontal freedom) – dependent on previous or antecedent choice on the vertical level (2) dimension or vertical choices (vertical freedom) – centered as a style of life previously chosen; initial decision; ideal of self one wants to be.
THE WAY TO FREEDOM Robert Johann
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(a) Too often, it is an absence of external restrictions on my native capacity for self-determination (b) Too seldom, it is recognized that the greatest obstacle to freedom is within me, that, quite apart from what other do, I need more than free will to be free. Free act is one for which I am responsible (it is an act which I am the source, ergo, freedom is identical with my selfhood; with my capacity to act on my own. Bu the fact that I am responsible for what I do does not mean that my actions are responsible actions Ambiguity in the Notion of responsibility Being a person makes me responsible for my actions: being responsible for my action however, does not make me a responsible person. Responsibility is not mere accountability; it is the ability to give an account. It includes responsiveness •
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A responsible person is one whose actions are shaped in response to objective requirements and not simply by his own whims. The ability to act rationally thus presupposed and arduous shifting of life’s focus. It means putting the Other in the forefront in place of misled and learning to respond to the requirements instead of y ielding to caprice. Apart from it, there is no freedom at all worth the name, for it is that “dying to self” is the only portal to life and to the freedom of children of God.
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MAN’S QUEST FOR FREEDOM Rainier Ibana Thesis of the essay: freedom is important and for its’ sake, whole nations are conquered.
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What is freedom? Determinist
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Hard determinist : contends that there is no freedom. Man is a mere object of his environment, thus, because of the limitations to the body, he can never be free. There is no such thing as Freedom.
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Anaxagoras would have interpreted Socrate’s choice to accept death penalty as determined by the finitude of Socrate’s skin, flesh and bones rather than a choice to do what is right and honorable. Platonic Refutation of determinism: man is not determined y the physical world. He can control his bodily movements. Through his body, man controls the physical world; he is then free from the physical world itself.
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Appeal to physiological factors to refute the existence of freedom
Soft determinism: Even if man is free to choose, he is not free to choose what he wants to choose. (a) Appeal to psychological and sociological theories to delimit the scope of freedom. (b) Representatives: BF Skinner Human freedom is irrelevant to the development of the human person because human behavior can ultimately be conditioned by means of rewards and punishments. These rewards and punishments are mere reinforcements, which trains behaviors. By controlling the reinforcement in a culturally engineered environment, Skinner claims that they can produce saints, wise men, heroes, tyrants and fools.
Skinner sees man as an animal, trainable through reinforcements. Whatever society Skinner will produce will merely be a totalitarian community with pre-determined rules. Philosophical refutation of soft-determinism Kantian distinction between determination by natural necessity and the freedom attributed to man. Animal conditioning cannot be applied to human As a human being, man can always refuse to follow the stimulus response mechanism. Such refusal can only be understood under the postulate of the existence of freedom. Libertarians (C.A Campbell and C.D. Broad) Using the Kantian distinction, they supposed that in order to account for any kind of responsible human behavior, freedom must be a necessary presupposition. (a) even the choosing of rewards and punishment in Skinnerian community will have to be chosen by an engineer. (b) Degree of rewards and punishments will have to correspond to the degree of responsibility. (ex. A judge in adjudicating a case determines the degree of responsibility contributed by the criminal to the accomplishment of the crime.) (c) This act of choosing presupposes freedom on the part of the agent. Determinist must presuppose freedom. Determinism presupposes that the determinist is free to argue for determinism. Otherwise, it would be more absurd to argue that man is already determined to be determined. Freedom then is the cause, which determines human behavior.
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Why is freedom important Without an actual choice, freedom will only remain as a potential power. Freedom cannot be separated from the nature of man because freedom must be directed to conform with the said nature. (a) The best choice for a man is the choice that promotes his essence. (b) Worst choice is that choice which contradict the pre-conceived essence. According to natural law: of the choice is made in contradiction with the natural essence of man, then this choice is not a free choice at all. The problem: RELATIVISM: there are many ways of conceiving man which leads to different norms that determine man’s choices. In order to resolve this conflict, the modern philosophers attempted to start all over again and postponed their pre-judgment on the essence of man. Husserl – practitioners of humanistic science have completely (a) neglected even to pose the problem of a universal and pure •
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science of the spirit and to seek a theory of the essence of the spirit as spirit. Dewey – the fundamental postulate of the discussion of freedom (b) is that isolation of any one factor, no matter how strong its working at a given time, is fatal to understanding and to intelligent action. (c) Existentialist – freedom, refers to the condition of human existence, rather than to characteristic of human nature. Enlightenment —cry for absolute freedom. Man should be free (d) from nature, fellowman, society and God. Note: The Demands of Enlightenment can be divided into two – Absolute Freedom – the terror. This division emphasizes the negative effects of the Enlightenment. The enlightened demands for freedom eventually degenerated into an anarchy. Ex. French revolution’s attempt to rationalize even religious acts which resulted to empty formalization of knowledge, without contents. (e) Karl Marx -- human liberation could not be expected to merely descend from the sky, but must be achieved by transforming the alienating conditions of human life by means of human labor. Attainment of freedom can be fulfilled by means of PRAXIS or revolution. Note: Even Marx fell into the trap of essentialist thinking when he reduced his idea of man to the essence of HOMO-FABER (species-being; adopted by Erick Fromm from Feurback’s notion of the distinction between consciousness of a man of an animal. Man is conscious not only of himself as an individual, but of the human species or ‘human essence’. Marx tried to make distinctions between the different levels of alienation but there still existed a problem. Because of the essentialist preconception, the determinant of Marxist kind of social transformation could only be the laboring class. Anyone not part of the laboring class must be swept away.
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Karol Wojtyla Instead of analyzing human being by means of class conflict, Wojtyla’s mind attempted to solidify the inherent CLOSENESS between human beings. Class struggle is not the vehicle for social transformation but SOLIDARITY MOVEMENTS and PARTICIPATORY DEMOCRACIES. Aim of Wojtylan political program is to simultaneously transform the individual members and social structures from ‘objective totalisms’ toward ‘participatory and communal membership. In Wojtyla’s perspective: ALIENATION (like that of Marx) is the starting point in understanding freedom. But Marx’s second premise that: the only way to attain liberation is through revolutionary overthrow of those who of not share in the essence of man as homo-faber, shall be done away with Man should now be treated in a more synoptic vision of his being as BEING. (Being qua Being) Liberation will bring about emancipating conditions of those who belong in one particular class but to the whole community.
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Instead of revolution as a means of negating alienation, the Wojtylan political methodology would propose the “POSITIVE AFFIRMATION” of the human being qua Being in terms of solidarity and participation. In this set-up, opposition is still present because it is an authentic form of participation. In this set-up, no particular class will dominate, thus every human being is called upon to participate in the process of liberation, each person has a unique contribution to the common good of man, whole not necessarily being individualistic. Dignity of the human person is then protected since such dignity could be located from the individual’s participation with the common good. Freedom is connected with man’s being (The source of freedom is the being of the human) In treating man as a human being, his freedom is preserved because he is allowed to exist, as he is – not predetermined by essentialist doctrine. How is freedom possible How to find for freedom --- by participating in one’s being: to be and to know oneself. Man chooses his values (example: a holy man tends to choose values of holiness, wise men intends the values of rightness or wrongness). But in choosing these values, there are objective standards: depth, endurance, divisibility and extension (Max Scheler) Thus, a well-integrated human being prefers the value, which could lead to deeper fulfillment, longer endurance, extensive scope, more divisibility and broader extension. To violate this objective would pervert the human being. He is then susceptible to mislabeling values (ex. Labels holiness as unholy) and thus commits injustice to himself and others. Human being who conform to the objectivity of these values benefits from the liberation by being able to attain higher and higher levels of actualization.
Radical will of the good – the bridge that connects the objective order of values and the matrix of personality structure of human being. Human freedom is oriented precisely by this will for the good. Thus: Freedom is always intentional because it is always intending, reaching out striving for the good. •
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But by manipulating man’s sense faculties, these “goods” (pedestrian goods advertised in billboards, and walls) lure human freedom to create these goods within his personality structure Power of freedom can be demonstrated by showing its effect on human behaviors. Once man become conscious of the objective goods desired by his will, he is driven to realize the freedom to will the good in his concrete acts of choosing.
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Except to the One true God, all other forms of exercising the act of choice are all directed to finite goods which leads to CORRUPTION (absolute love for finite goods). Ex. Love for power makes a tyrant murder for power. For a man to keep his freedom, he must have an objective sense of justice. Libra—a balancing stem held by the must of justice, the root of the words “deliberate” and “equilibrate” The order of values Derived from Plato’s notion of justice as the proper “order” in the cosmos: in accordance with the principles of goodness and beauty. This would help us consider the complex demands of freedom. St. Agustine – these goodness and beauty predicates of God’s ultimate Being In the society, this would mean that higher values must be the norm of human decisions while lower values must be used only in so far as it can serve the higher values. Higher values will never be subordinate to lower ones. In the classic order of values, freedom need not be in contradiction with justice. Freedom conditions justice (because in the promotion of freedom, everyone is allowed to use their talents in their quest for conditions that would fulfill their vocations as human beings) and justice is a condition for freedom. Freedom is a form of justice -- to violate freedom is to deny justice due to human being. Justice is best served if freedom is enhanced.
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Conclusion: Freedom is important because it is the source, which makes human behavior possible; it is the dynamic drive, which propels human being towards the liberation of his total being from any form of alienation. Through the Wojtylan exercise of participation/deliberation, human freedom can be positively affirmed coupled with the fact of being conditioned by the sense of justice.
RIGHTS D. Knowles
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Logic: Destructive dilemma between freedom and justice: can only happen if justice is state in crude populist terms (human beings can be uniformed in one essence; supposes that everyone is equal. But this is problematic – equality can become an ideal goal but never the starting point of social change) and freedom is sated in rugged individualistic assertions (does not consider Rawl’s natural and social lotteries or inequalities during birth which could hinder an individual in participating for the common good. • Constructive dilemma between justice and freedom is made when freedom is conceived as a condition of justice and justice is made a condition of freedom. One could affirm the importance of he other thus, both entail each other. Note: We can’t insist that freedom and justice can only be conceived in the form of destructive dilemma because to say that it is such is to say that they are exclusive of each other; any discussion between the two would be a waste of time. The difference between a populist egalitarian and individualistic libertarian can only be resolved by a mob rule. •
Constructive dilemma could accommodate the positive elements from the parties of the deliberation (an important condition for the possibility of convergence; a complex social dimension) and can even converge on the same ideals of freedom and justice. ERGO: It is with the interplay between social structure and order of goods could authentic freedom become possible
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Introduction Rhetoric of human rights is universal. A lot calls for the observance of human rights, but in practice, the state continues refuse to giving such rights to its citizens, of course except when applying for aid from the UN. But as soon as the crisis is alleviated, the state return to its usual habits of violating human rights. Analysis and definition The Rights of Man – universal rights; also called as natural rights by Hegel; abstract rights (abstract rights because all that person have to say for themselves qua other person is that they are essentially different from each other – there are no ends or goods distinctive of the sense each has of himself as a person). Why term “human rights” is best: (a) it connects with the language of the charters, declarations and conventions which inscribe rights as a principle of international law. These rights referred to by these charters are Rights of the citizens claim against their governments. (b) The term natural rights carry with it a distinct provenance (transcendental, non-naturalistc, imprint of talk of natural law, thus may be unattractive to some. Natural rights were deemed natural because they were product of natural law. Natural rights are sanctioned by natural law (Locke)
Human rights vs. legal rights (c) Human rights – species of moral rights; generally register moral claims and are to be vindicated by moral argument. (d) Legal rights – product of some specific legal system Note: the law may recognize moral rights, embodying in statutes standard liberal rights. How is this done: through INCORPORATION of international charter to municipal law of the land. •
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Positive rights vs. Critical rights (echoing H.L.A Harts’s d istinction between positive and critical morality)
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positive rights – rights recognized within some appropriate system of actual, operative rules; LEGAL RIGHTS are POSITIVE RIGHTS. Other examples: religious rights Note: MORAL RIGHTS may also be positive rights in circumstance when a recognized system of moral rules entitles one to make a legitimate claim. (ex. Parents claim a positive moral right of obedience from children, children claim a positive moral right of independence from parents). When a system of domestic regulation binds persons, this is how moral rights work •
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Critical rights –rights that ought to be recognized, whether, as a matter of fact, they are recognized or not. It would be odd to claim a critical legal right. Criticism to critical rights: (a) Rights which can find no critical endorsement (rights then become relative) (b) Critical reflection may support the case of rights which positive morality does not recognize.
Individual and Group rights (a) Individual rights – held by individuals against supra-individuals, against each other and the state Has its origin in the middle ages Notion of equal, universal rights was a Product of individualism explicit in Protestant theology (each person having his own access to God) Central to these account is the idea of the person as the subject of rights; a human being as the maker of moral claims. To see oneself as a person is to make claims of right and to recognize the claims of others. Hegel: Be a person and respect others as person What is the default position? When man asked “who am I?” : claims of personality is historically emergent, it depended on TIME. (b) Group rights – attests to the existence of a group as a unit of moral agency, having something of the boundedness and singularity claimed for individual persons. Robert Zonick talks of Hyper Planes in moral space – partitioning the • moral universe into collection of individual bearers •
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Notion of legal right is ambiguous, having four distinct senses (a) Privilege right (liberty rights to others) – these rights are compatible with others acting in ways that prevent the bearer of rights from acting. (ex. Liberty of man to preserve his own nature, thus, if one’s life is at stake, everything is permitted); ALS O KNO WN AS A RIGHT OF NON-INTERFERENCE (everyone has the correlative duty not to interfere) and RIGHTS IN REM (b) Claim rights – those who claims rights also have the stature of holders of responsibilities; these rights are correlative to duties; ALSO KNOWN AS NEGATIVE RIGHTS AND RIGHTS OF ACTIONS . By claiming this right, I recognize the right of others against me. (c) Rights in Personam – entail correlative duties on the part of the assigned individuals (ex. Rights of children to claim care from their parents) (d) Rights in REM – rights claimable against anyone or any institution
** Jeremy Waldon’s classification (a) Special rights (conditional rights) – arise out of some contingent deed or transaction/promise or contract ( b) Gen era l r ight s ( unc on dit ion al ri gh ts) – n ot pr od uc ts o f contingencies (ex. Rts. to life); rights in REM Note: Characteristically, rights of non-interference are claimable both in rem (against all and those who would agree against the individual) and in personam (where specific individuals or agencies have duties of protection, prevention or care)
Immunities –obverse of power; protections against arbitrariness or excess in the use of powers
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Power – third element in Hohfeld’s analysis of legal rights; concerns power to alter rights and duties (ex. Right to private property, Democratic Right of political participation.
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Commutarianism – individuals must first cite their association with other before demanding for rights. (ex. I can only claim political rights if I am a citizen)
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Speciesism – happens when the interest of the species as a group need to be asserted against outsiders; presupposes that the human species is a distinct grouping with proper interest to defend and promote against the completing claims of other groups.
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Question: Whether individual rights should be assigned priority over group rights. Can’t be answered, depends on case to case basis (ex. issue of Amish community and their tradition and the rights of the children to go to school.) This can be resolved through JUSTIFICATION OF RIGHTS CLAIM (how are rights justified
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Justification of Rights 1. Lo ck ean Th eme s: Mod e of Own er sh ip Locke offered the most straightforward argument for natural rights.
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Mankind is God’s creation. We cannot act as his trustees unless our lives, health, liberty and possessions are respected. We have a natural right to these goods, subject to our respecting equivalent claims of others. Natural right is a right asserted in accordance with natural law (God’s law). Thus, we can claim against others that (negatively) they do not interfere with our life in God’s service) and (positively) as parents, that they provide us with the means of properly human life). Natural law and natural rights are discernable by reason. Locke tackles the hard problem of the right to private property through his doctrine: THESIS OF SELF-OWNERSHIP, which provides that every man has a property in his own Person, nobody has a right to but himself. This thesis that we naturally own ourselves is often used to legitimatize slavery. However, some would say that this right is inalienable, thus slavery is unjustifiable. It may be justified that the rights of persons can be derived from the fact that he is the owner of himself.
2. Autonomy H.L. Hart argued that that, ‘if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free. Freedom is violated when agents transgress the duties required of them in virtue of the legitimate rights of autonomous agents. Autonomy is described by Dagger as the capacity to lead a self governed life. Every other right derived from it or is in some sense a manifestation of our human right to autonomy. Autonomous life, is life. No autonomy, no life. However, there are violations of rights which may not be a violation of autonomy.
Rights inflation: (described by L.W. Summers) phenomenon where in a variety of interests are attested by individuals as grounds for the claims they make on other. Claims of right are not self-validating- rights claims are expression of • interests. Thus, in case of disputes, examine the interest which ground claims. Interest (a) natural groups – are those groups of which agents find themselves to be members. (ex. family, state) (b) artificial groups – enlist members on the basis of declared prospectus; may be identified in terms of antecedent interest which the members promote. Note: Group membership forms as well as serves individual interests, even in the case of those original interest is self-interest -- this is termed as Mediation of the Particular through the Universal (Hegel). •
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THE RULE OF LAW VERSUS THE ORDER OF CUSTOM Stanley Diamond (Marxist ) Thesis: Relation between custom and law is one of contradiction, not continuity I. •
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Rights and utility. How can utility as object of rights work to justify institutional provision? To register the interests which rights service in a utilitarian calculation. This calculation requires that everyone’s interest be taken into account. Utility may provide ground for the justification of rights
Law versus Custom Law has cannibalized institutions because we are encouraged to assume that legal behavior is the measure of moral behavior Law (an effort to legislate conscience by an external political power) is the antithesis of custom. Customary behavior (Social Morality): aspects of social behavior which are traditional, moral, and religious (non legal) William Seagle – custom is spontaneous and automatic; law is a product of organized force
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Difference between law and custom Law Custom Sym pt omat ic of t he Spontaneous, tradition, emergence of the state personal, commonly known, corporate, relatively unchanging Instrument of civilization, A. modality of primitive sanctioned by organized society force B. Similarities: Law and Custom both involve the regulation of behavior. I I. •
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The no theory-theory Rights are generally asserted claims against others. If other acknowledges them as a right, then it is established. All practice involved in a practice of making right claims. If rights are claimed, acknowledged and respected amongst the community, no further argument is needed to establish their provenance. What if it is denied all the time? Use history and sociology.
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Ar ch ai c L aw an d Loc al Cus to m Proto-states – early phases of archaic societies; represents a transition from the primitive kinship based communities to the class cultured polity. In proto-states, law and customs exists side by side. Customary behavior maintains most of its force These archaic states are transitional: in their early phase, they are the agencies that transmute customary forms of order into legal sanctions Examples: Proto-state of Dahomey Best friend system – each person have three “best friends” in descending order of intimacy and importance. This transitional institution extended the family structure
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In this system, the best friend, is expected to turn himself in rather than implicate his friend in his punishment. The custom of friendship was given a legal edge and converted by the evil power into means of forcing its will. Russia System of revenge: If a man kills another man, the brother will avenge his brother, son, his father (vice versa), if no avenger, the murderer pays. Visgoths A person who kills another is expected to be handed over into the parents or next of kin of the deceased
** in these instances, custom has been codified by an external agency, assuming legal force; reinforcement of custom by the civil power. III. •
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Formation of the Family and State According to Maine: As the state develops, the individual is substituted for the family as the unit of which civil laws take account. According to Jhering: The progress of law consists in the destruction of every natural tie, in a continued processes of separation and isolation. Totalization – state process wherein an individual’s bearing become collective. Etatist tendency – can be observed in sub Saharan proto-states (existence of militaristic clan). In these small states, organizations such as militaristic clans exist undermining the authority of the state and placing certain persons outside its jurisdiction (interstate warfare). The contradictory transition from customs to specified laws is by no means the major source of law.
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The Census-Conscription-Tax System The laws typical of intermediate societies are unprecedented. They arise in opposition to the customary order and represent a new set of social goals pursued by a new and unanticipated power in society which can be reduced to a single imperative: census-tax-conscription system (conscription of labor, levying of taxes and tribute and assessment of the location and numbers of the population being subjected) Major Direct and Indirect Occasions for the development of Civil Law: Census -- represents the potential power of the state; carefully guarded; essential for conscripting men and provides the basis for taxes. Double meanings of certain terms in English which reveals the conflict between local usage and the census-tax-conscription system of early state: a) duty – means moral obligation and tax b) court –residence or entourage of sovereign; a place where civil justice is dispensed In primitive societies, there is a built in mechanism for resolution of conflict (through courts) and conflicts generated by the ordinary functioning of social institutions were resolved as part of the customary ritual cycle integral to the institutions themselves. Customary law solves almost anything. From inheritance to ownership to rules of behavior and morality.
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Th e pr ob lem wit h t he new sys tem In Census-tax conscription system unlike in customary law, every conceivable occasion was utilized for the creation of law in support of bureaucracy and sovereign. William Stubs said that it was only for the sake of profits that early justice was administered at all. Example: Laws governing Tolls (tolls are important source of revenue), punishment for theft of property. Burton said that in the event that there us a financial dispute, the bureaucrat would sit in judgment. The author is in contention that the abundance of laws actually provoked breaches. Example: rape was an invented crime (if it occurred in a traditional joint-family, the wrong would have been dealt with by COMPOSITION -- a ritual of giving goods to the injured party or through ritual purification or banishment. In the early state, crimes have been invented in order to suit the laws Latent purpose of law: punishment in the service and profit of the state, not prevention or protection of persons, nit the healing of breach. There were lots of laws made that were not necessary (ex. civil protection of market place and highways). In joint family, clan or village, this would have easily dealt with. With an evolving state, the presence of the kings men (usually referred to as bandits and predators who victimized many people) would itself be a primary cause of disruption. Laws became self-fulfilling prophesies because the laws and crimes which it served were actually covariant of the evolving state. The intention of the civil power (first civil laws) is epitomized in the sanctions against homicide and suicide. Persons were property of the monarch (that’s why suicide and homicide are offenses against the state). By undermining the kinship bond, they made it easier to deal with individuals, and the isolation of the individual if a basic precondition for the growth of law (Maine).
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Difference with Joint Family systems In joint families, murder in a joint family village was a tort – a private remediable wrong which could stimulate a blood feud, not to be confused with Lex Talionis (law of revenge) The theory of eye for an eye never really held for primitive people. Replacement for loss with damages and not through retribution. Acts of violence must be distinguished from Crimes of violence. Homicide is an offense against Ala – the earth deity. Thus, if a villager is involved, the murderer is expected to hang himself. The life of individual id highly respected; it is protected by earth goddess. In the proto-state, the struggle was over the lives and labor of the people. La w an d D is or der If revolutions are the acute, episodic signs of civilizational discontent, the rule of law has been the chronic symptom of the disorder of institutions.
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A constitutional government, whether called republic or kingdom, is an arrangement by which the nation governs itself by means of the machinery of a military despotism (Taylor) Among lessons to be learnt from the life of rude tribes is how society can go without the policeman to keep order (Taylor). All political society is based on repressive, organized force, only a Plato or Machiavelli or a Marx was able to penetrate the myth between the ruler and the ruled, or equality under the law. The tradition of Plato and Machiavelli comments the use of the “royal” or noble lie while Marx exposes and rejects power structure that propagates false political consciousness. The state, has assumed monopoly of political co-ordination (Vinogradoff). It is the state which makes laws and eventually forces them, by coercion (did not exist in ancient times) State created a public power of coercion that did no longer coincide with the old self-organize and armed population. Engles writes that the state is the alienated form of society. Why? Because the state is a power forced on society at a certain stage of evolution. State is necessary in order for the classes with conflicting economic interest may not annihilate themselves in a useless struggle. But as time passes, the supremacy of state becomes more and more pronounced and later on becoming more divorced from the state.
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VIII. The response to civil law The struggle for civil rights, then, is a response to the imposition of civil law. Law has its origin in the pathology of social relations and functions only when there are frequent disturbances of social equilibrium. Law arises in the breach of a primary customary order increases in force with conflicts that divide political societies internally and among themselves. Law and order is the historical illusion: law versus order is the historical reality.
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The notion of law in terms of sovereign habitually obeyed failed to account for the continuity of legislative authority characteristic of a modern legal system. Ancillary devices used in criticizing the conception of law as the sovereign’s coercive orders. (a ) Not ion o f t ac it o rde rs – h ave n o a ppl ica ti on t o t h e co mpl ex actualities of a modern legal system. Only applies to simpler situations. (b ) Trea tin g p ow er co nf err ing r ul es as mere f ra gmen ts of r ules imposing duties or treating rules as directed only to officials distort the ways in which these are spoken of and actually used in social life. The failure is due to elements out of which the theory is constructed (ideas of orders, obedience, habits, etc). Types of rules Primary Rules human beings are required to do or abstain from certain actions, whether they wish or not impose duties concerns actions in vo lv in g ph ysi cal movement or changes the basic goods: the absolute fundamental of natural law
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LAW AS THE UNION OF PRIMARY AND SECONDARY RULES H.L.A. Hart •
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A fresh start The simple model of law as the sovereign’s coercive orders failed to reproduce some of the salient feature of the legal system. Why? 1. In all varieties of law, a criminal statue forbidding or enjoining actions under penalty most resembles orders backed by threats (for one, there is not continuing belief in the consequence of disobedience; order backed by threats are only addressed to a particular person) 2. There are other varieties of laws conferring legal powers to adjudicate or legislate or create /vary legal relations which cannot be construed as orders backed by threats 3. There are legal rules which differ from orders in their mode of origin because they are brought into being by anything analogous to explicit prescription.
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Secondary Rules type of rule which is in a sense parasitic/dependent upon the first confer powers, public or private provide for operations which lead not merely to physical movement or change, but to the crayon or variation of duties or obligations. Have to do with operatives To enforce the basic goods
In the combination of these two rules, there lies the law (key to science of jurisprudence). Th e I dea of Ob li ga ti on Where there is law, there is human conduct which is made in some sense nonoptional or obligatory (after all, law is obligatory). Notions of Obligation: 1. Th e gu nma n s it ua tion : I was ob lig ed According to the theory of coercive orders, this situation illustrates the notion of obligation or duty in general. Legal obligation is to be found in this situation. There is a difference between the assertion that some in obliged to do something (a statement of beliefs and motives within which an action is done) an the assertion that someone had an obligation to do it. •
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Meaning of 1st notion: without the consequences, I would have done something different I have an obligation: 2nd notion In this notion, facts about beliefs and motives are not sufficient to warrant a statement that one has an obligation to do something. The statement that someone has an obligation remain true even if there is no consequence for disobedience That one has an obligation does not necessarily mean that one has accomplished such an obligation.
Note: theorists like Austin, seeing perhaps the irrelevance of one’s personal belief, fears and motives if one has an obligations to do something, has defined this notions in terms of Chance or Likelihood that a person having an obligation will suffer punishment at the hand of others in the event of disobedience. Statements of Obligations then are not psychological statements but PREDICTIONS or ASSESTMENTS of incurring evils. IV.
There are reasons for rejecting the claim that statement of obligations are mere predictions of incurring evils. 1. predictive interpretation obscures the fact that where rules exists, deviation from them are not grounds for a prediction that hostile reactions will follow or sanctions will be applied, 2. if it were true that if a person has obligation them he was likely to suffer in the event of disobedience, then this would be a contradiction of the notion of obligation. Note: in normal legal system, where sanctions are exacted for a high proportion of offenses, an offender usually runs a risk of punishment, so the statement that a person has an obligation and the statement that he is likely to suffer for disobedience will both be true together. Obligation is not to be found in the gunman situation, though the simpler notion of being obliged to do something may be present. The statement that someone has or is under an obligation does indeed imply the existence of rule. Why? (a) the existence of such rules makes certain behavior a standard which is a proper background for such statement. (b) The distinctive function of such statement is to apply such a general rule to a particular person by calling attention to the fact that his case falls under it. However, this is not always the case that where rules exist the standard of behavior required by them is conceived of in terms of obligation. (example: rules of etiquette or correct speech are rules but they are more than convergent habits than behavior. They are rules that are followed but they are not obligations) V. Wha t mak es ru les ob lig at io ns ? Rules are imposing obligations when the general demand for conformity is A. insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. These rules may be customary in origin: there may be no centrally organized system of punishments for breach of the rules •
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Such rules depend heavily on the operation of feelings of shame, remorse or guilt (rules in this case may be part of the moral obligation) When sanctions are physical, these are rules that can be classified as primitive or rudimentary forms of law. The seriousness of social pressure behind the rules is the primary factor determining whether they are though of as giving rise to obligations.
B.
They are necessary to the maintenance of social life (ex. those that restrict free use of violence, rules which require honesty or truth or require keeping of promises or what is to be done) C. The obligations and duties are thought of as characteristically involving sacrifice of renunciation because the conduct required by these rules may, while benefiting others, conflict with what the person who owed the duty may wish to do. Note: because of this, vinculum is created (a bond). The first task is to know whether there is a right. Rights and duties are only attuned if it is good: how do we know if its good? Because of reason. VI. Internal and External Point of View 1. internal point of view : The way a group assess its own behavior (I have an obligation…) 2. external point of view the way rules function in the lives of certain members of the group as seen by a non-member or those who reject its rules and are only concerned with them when they have judged that unpleasant consequence are likely to follow violation (I was obliged to do it…). Note: the external observer would just give an account on how other members of the group would follow the rules and he would observe that any deviations by a member of the group can be a sign that hostility is likely to follow. Violation of the rule for them is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility. VII. •
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Elements of Law Primary Rules of Obligations (Customs): society without legislature, court officials and the only means of control is that general attitude of the group towards it own standard modes of behavior in terms of which rules of obligations are characterized. For a society to live by such primary rules alone, there are certain conditions that must be fo llowed: 1. Rules must contain in some form of restrictions on the free use of violence, theft and deception which human being are tempted but must be repressed 2. Those who reject the rules cannot be more than a minority, if not, the society will be loosely organized. (ex. in primitive societies, although there are dissenters, the majority live by the rules seen from the internal point of view) However, these rules may prove defective in other conditions. What are these defects? •
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(a)
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Uncertainty – the rules which the group lives will not form a system but will simply be a set of separate standard without identifying common mark, thus, (b) Static character of the rules – the only mode of change in the rules known to such a society will be a slow process of growth. (c) Inefficiency – in diffusing social pressure by which rules are maintained. Lack of final and authoritative determinations. Remedies: supplanting the primary rules of obligation with secondary rules (The union then of primary rules and secondary rules is what law/core of the legal systen is) Secondary Rules of obligation – remedy to the defects of Primary rules. (a) Rule of recognition – a positive affirmation that something is a rule of the group to be supported by social pressure it exerts. In early law societies, they may be more than that an authoritative list or text of the rules found in written document, carved in public monument (were reduction to writing of unwritten rules). (b) Rules of change: a rule that which empowers an individual or body of persons to introduce new primary rules for the conduct of life in the group. (c) Rules of Adjudication – to empower individuals make authoritative determinations; do not impose duties but confer judicial powers and a special status. Note: these secondary rules shall provide the centralized official sanction of the system. •
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Conclusion: under a simple regime of primary rules, the internal point of view is manifested in its simplest form as the basis of criticism, justification of demands for conformity, social pressure and punishment. With the addition of the secondary rules, the range of what is said and done from the internal point of view is extended and diversified. Concepts like validity, jurisdiction, legal powers etc are created.
THE FOUNDATIONS OF LEGAL SYSTEM H.L.A. Hart I. A.
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The rule of recognition and Legal Validity Habit of obedience – social group habitually obey the orders backed by threats of the sovereign person or person who themselves habitually obey no one. Sufficient condition of the existence of law (according to this theory) But this theory is unable to take into account some of the salient features of modern municipal systems (see notes on sovereign and subject) But it does contain some important aspects of law which can be assessed in terms of more complex social situation where secondary rule of recognition is accepted and used for identification of primary rules of obligation (this situations, a.k.a foundations of legal system) Rule of recognition
When accepted, both private and officials are provided with authoritative criteria for identifying primary rules of obligation Forms of criteria: authoritative text, legislative enactment, customary practice, general declarations, judicial decisions. For Rex I, the sole criterion is the fact of enactment. With the rule of recognition, officials or some private persons will be able to identify these criteria. In modern systems, the criteria for identifying law are complex thus, ranking of these criteria in an order of relative subordination and primacy is done in order to avoid conflict (common law is subordinate to a statute) Subordination and Derivation of Criterion In our own system, custom and precedent are subordinate to legislations since customary and common law are deprived of their status as law by statute They owe their status of law from the acceptance of rule of recognition. Rule of recognition is not state but its existence, shown in the way in which particular rules are identified either by courts, officials, etc. When officials identify a particular rule as law, it gains a special authoritative status attributed to them by other rules. Internal point of view and External point of view 1. Internal point of view – characterized by the use of unstated rules of recognition by courts in identifying particular rules in that system (expressed: It is the law that…) Expressed through an internal statement (manifests internal point of view and used by the one who accepting the rule of recognition and without stating some particular rule of system is valid) When rules are accepted, the notion of legal validity disappears. 2. External point of view – attitude of an observer who just records the fact that a social group accepts such rules but foes not himself accept them (expressed: In the Philippines, they recognize as law whatever the legislature enacts) Expressed through external statement because it is the natural language of external observer who merely states the fact that others accept it. Validity of rules Validity means passing all the tests/criteria provided by the rule of recognition Related to efficacy: meant that the fact that a rule of law which requires certain behavior is obeyed more often than not. Validity is an internal statement; efficacy an external one. Efficacy and validity do not have connection unless the rule of recognition of the system includes among its criteria that no rule is to count as a rule of the system if it is not efficacious (rule of obsolescene). It is a mistake in neglecting the special character of the internal statement and treating it as an external statement about official action. A rule that is valid id a prediction when such a statement is made by a private person The rule of recognition providing the criteria by which the validity of other rules of the system is assessed in an important sense, an ultimate rule: where there are several criteria ranked in order of relative subordination, and primacy, one of them is supreme. •
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Ultimacy of the rule of recognition and supremacy of one of its criteria Supremacy of criterion: Criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognized as rules of the system even if they conflict with the rules identified by reference to the other criteria. (Notion of superior and subordinate criteria) Rule of recognition as ultimate rule: in order to answer raised whether a rule is valid, a criterion of validity must be used Example: is the rule on color-coding valid? Yes because it is exercised by the MMDA using the power conferred to it. Is the power conferred valid? Yes because it is in accordance with a law passed by the congress. Is the law valid? Yes because the congress enacted it. Note: we stop in the last statement because we have reached a rule, which provides criteria for assessment of the validity of other rules (an ultimate rule)
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But to say that a rule is valid because it is used by the courts and other officials (or that the system is an excellent one) is already moving from an internal statement to an external one/statement of value. (we are already judging the efficacy of the rule) G.
It is important to distinguish ‘assuming validity’ from ‘presupposing the existence’ of such rule. Failure to do this obscures what is meant by the assertion that such a rule exists. The existence of rule of recognition is a matter of fact.
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prevailed in primitive societies being followed by men because of their belief that superhuman powers would punish violations of it (ex. bad harvest, sickness or death) So ci all y o rg an iz ed sa nc tion s Sanctions to be executed by men according to a social order established by men. Have the character of acts of coercion Carried out against the will of those subject to the order through employment of physical force
COERCION: a criterion of law: law is coercive order Provides a socially organized sanction which can be clearly distinguished from a religious order or moral order Law in coercive order is the specific social technique, which consists in the attempt to bring about the desired social conduct of men through threat/coercion. Something that is contrary to law is: illegal, a crime, a tort, and delict. B. Non-Coercive Order – system of morals that do not provide for transcendental or socially organized sanctions. •
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II. Sanctions: Criminal and Civil In the national law, there are two different kinds of sanctions: A. Punishments – forcible deprivation of life (capital punishment) or freedom (imprisonment) These are sanctions of criminal law B. Civil Execution – forcible deprivation of property Sanctions of civil law •
THE NATURE OF INTERNATIONAL LAW Hans Kelsen Thesis: To answer the question of whether international law is indeed law, in the same sense national or municipal law is used, it is first essential to know the criterion that would make international law, law.
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Two k inds of soc ial order Social order may be attained in two ways: without or with the threat and use of force Coercive order – a social order that attempts to bring about the desired conduct of individual through sanctions Provides for centralization (see notes below) by instituting tribunals and executive agencies In order to induce individuals to a certain conduct, an authority may threaten a person with an evil (e.i. depriving men of certain possessions such as life, freedom, property or other values) These evils are known as sanctions. Sanctions may be: 1. transcendental sanct ions provided by religious orders such sanctions that emanates from superhuman authority (has transcendental character)
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Legal Norm and Rule of Law: The “Ought” Rules of law: statements by which the science of law describes its object, which is the law Statements made by legal science, which is not a legal authority, hence not competent to issue legal norms prescribing or permitting human behavior. Legal norm: statements to the effect that under certain conditions, a certain consequence, namely, sanctions, ought to take place Issued by legal authorities Relation of legal norm and delict Not cause and effect; not a law of nature (meaning: it does not follow that when a delict occurs, a sanction will necessarily take place) When a delict is committed, a sanction ought to be applied OR if delict is committed, the application of the sanction is legal (means that there is only a crime if there is a law sanctioning it) Crimes/delict is actually a creation of the law (contention of diamond) ex. the case of rape. In primitive societies, rape is not a crime punishable by a law. Rape only became a crime when a law was made prohibiting it and imposing sanctions on it.
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A violation of the law It is the physical existence which is affected by such act. The specific “existence” of a norm consists in its validity, and the validity of a norm prescribing or permitting a definite conduct is not affected by a contrary conduct. A violation of a something must be possible because if it were impossible to commit such a thing, then a norm/law to prohibit it would be meaningless. A delict is neither a violation nor negation of law. It is a conduct determined by the law as a condition of the sanction. Without a law, there is no delict. Ob li ga tion (Du ty) and Ri gh t If the conduct is the specific condition of a sanction, the contrary conduct is the content of a legal obligation. I ought to do this: I am obliged to do this. Right and obligation are opposite terms 1. to have a right is to be free to behave in a certain manner 2. not to be under the obligation to behave in another manner. 3. for me to claim a certain right against another person is to say that that person is obliged to behave in a certain manner. Primitive Law Sanction are decentralized (it was left to the individual whose interest was violated by the behavior of another whether to sanction the other individual) Principle of self-help Collective Responsibility (collective thinking – man does not consider himself different from and independent of his fellow men but part of a group) – three best friends of diamond See diamond’s article for example (system of revenge/blood revenge)
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Developed Legal Order Sanctions are centralized (consists in the es tab li sh ment of a special organ, a tribunal, competent to carry out the sanctions)
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One may not be responsible over a particular delict yet he may be obliged to repair the damage (ex. employer may not be responsible for the delict of his employee yet he is obliged to answer for it) It is possible that an individual other than the delinquent may be responsible for a delict. Individual responsibility – sanction is directed against the delinquent, individual is responsible for his own delict. Prevails in modern societies. Collective responsibility only prevails on exceptional cases. Ex. corporations. Collective responsibility – of the sanction is directed against an individual or individuals other than the delinquent.
Note: the difference between an obligation and responsibility manifest itself in the fact the an individual can be obliged only to behave in a certain way, to his own behavior but that an individual cannot be obliged that another individual shall behave in a certain way to the behavior of another. An individual can be responsible not only for his own behavior but also for the behavior of another individual. Examples of collective responsibility: 1. Law which provides that the husband shall be responsible for the delict of his child or wife 2. A mayor being responsible for delict of his constituents In collective responsibility, individuals are responsible for a delict, not because they committed it but because they belong to a group – family, tribe or state to which the delinquent belongs. Exists in the case of blood revenge which is directed not only against the murderer but also against all the members of his family. This is established in the 10 commandments The identification of delinquent with other individuals is the basis of this responsibility. •
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Collective Security Individual responsibility (if I commit a delict, no one else would be responsible for that delict but myself)
Right is defined as the capacity to have the leg al po ssi bili ty of instituting a lawsuit and deals with execution of sanctions
Responsibility: Individual and Collective Legal responsibility is different from obligation but their subjects are identical
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Culpability and absolute Responsibility This differentiation between culpability and liability is characteristic of a relatively progressive legal order. Responsibility based on fault or culpability – if the law annexes a sanction to a certain conduct only if the harmful effect of this conduct was intended or was brought about by negligence or malice. Absolute responsibility or liability – if law annexes a sanction to a certain conduct even if the harmful effect is brought about without intention, negligence or malice on the part of th e delinquent.
Note: It is possible that a legal order establishes responsibility of an individual for delict committed by the other individual intentionally or maliciously or with culpable negligence. In these cases, absolute responsibility is established Why absolute responsibility? Because sanctions are directed against individuals who have not committed the delict even thought there was no intention or malice on their side. (case of collective responsibility)
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VIII. Force and Monopoly of the Community Under the national law, the employment or force is a delict unless it is prescribed or permitted by the legal order; and as a rule, it is prescribed or permitted by the law only as a sanction. It is the characteristic of the national law, which determines the conditions under which force may lawfully be employed. If employed under conditions of national law, it is legal, otherwise, it is illegal. • Social order reserves the employment of force to the community. Such a social order establishes a force monopoly of the community. Force monopoly of the community may be centralized or decentralized. 1. decentralized – if principle of self-help prevails, meaning, if the legal order leaves these functions to the individuals injured by the delict, as in the case of blood revenge. If principle of self-help prevails, the function of these individuals is determined by the legal order; they act in a manner authorized by law. If they employ force, they enforce the law In such cases, we may speak of a force monopoly of a community: for the conditions under which and the individuals through which force may be employed are determined by the legal order constituting the community. 2. Centralized –social order institutes, according to the principle of division pf labor, physical organs for the execution of the sanctions provided by law. •
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Note: Kelsen does not accept this idea because he believes that social order is considered as law even if it establishes only a decentralized force monopoly of the community (where the principle of self-help prevails)
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Self-help and Collective Security Principle of self help is eliminated if the legal order reserves the execution of the sanction to a special organ, that is, if the force monopoly of the community is centralized Two stages in the development of collective security: 1. characterized by the fact that the principle of self-help prevails, but the members of the community are legally obliged to assist the victim of a delict 2. characterized by the fact that the execution of the sanction is reserved to a central organ of the community and that means that a centralized force of the community is established. Collective security is more effective if the force monopoly of the community is centralized than if it is decentralized. Defects of decentralized force monopoly: (a) There is no authority, different form, independent of the parties concerned competent to ascertain in a concrete case the delict that has been committed (since there is no agreement between parties, it is doubtful whether the coercive act performed as a reaction to the delict is really sanction) (b) If the individual or group of individuals authorized by law to carry out the sanction is not more powerful than the delinquent, the sanction would not be effectively executed. Ergo: the concept of law is reserved only for a coercive order and no true law exists as long as the principle of self help prevails because the establishment of a centralized system of collective security is an essential requisite of law.
Why? Centralization of the force monopoly of the community is just a result of a slow and gradual evolution within which the progress from a decentralized to a centralized order is an important step, which leads the state from an anarchy to social order. What is important is to distinguish between legal and illegal employment of force In the primitive period, blood revenge is considered legal. It is an institution established by custom. Thus, such coercive order, based on principle of self help should be considered as primitive law. Even in centralized societies, self-help exists. Ex. self defense (definition: legal employment of force by an individual against an illegal employment of force by another individual) In primitive legal order, right of self-defense is implied in the principle of selfhelp but under a modern legal order, self-defense is just the minimum of selfhelp. •
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Ret rib ut ion an d Pr ev en tio n A community is only possible if each individual respects certain interest (life, freedom etc) of others. Meaning, if persons refrain from interfering in the sphere of interest of others (in the words of Feinberg, avoid causing HARMS to others) Law consists in inducing the individual to refrain from interfering with the interest of others: In case of interference, community reacts with a like interference in the sphere of interest of the person responsible for the previous illegal interference. (note: when the community retaliates, the interference made is legal – concept of Mill that power can be legally exercised over another individual only in order to prevent harms to others) Also note, what changes is just ideology. In primitive law, the technique used when a person causes harm to others is REVENGE (or RETRIBUTION). In the legal order, the technique itself is the same – retribution is also used. But such a concept is now considered as a prevention and not really retribution. Note that the technique (retaliating) is still the same. Law and Peace Peace is guaranteed by reserving the use of force to the community – by determining the conditions under which only certain individuals, as organs of the legal community are authorized to interfere forcibly in the sphere of interest of those subject to the legal order. Peach then is not the absence of force or a state of anarchy. It is a state of a force monopoly of the legal community Without laws, without social order where force monopoly is established, there will be no peace.
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INTERNATIONAL LAW I.
Defin ition International law is true law if the coercive acts of states, the forcible interference of a state in the sphere of interests of another state is permitted only as a sanction against a delict. The employment of force undertaken as a reaction to a delict can be interpreted as a reaction of the international legal community. Note: this only applies on general international law (customary laws) and not particular laws (treaties) •
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II. International delicts Conduct of states, which is illegal, contrary to international law. It follows that international law is a system of norms, which prescribe or permit a certain conduct for states. Question: are there sanctions for these delicts? • •
III. International Sanctions A. Sanction and Obligation of repatriation Sanction: an (primary) obligation to repair the moral and material damage caused by a delict (ex. formal apology) Repatriation: re-establishment of a situation which would have existed if the illegal damage has not been caused (a.k.a substitute obligation) Unfortunately, states may consider itself only to be under an obligation to make a repatriation only if it admits that it has committed a delict: that is if there is an agreement of the states concerned. States are not obliged to comply with any unilateral demand for repatriation made. There must first be an agreement in order for a concrete obligation to make repatriation to exist. This is different under the national law – no such agreements exists because we have courts that would determine whether a delict, and consequently, repatriation is exists. If a state who refuses to enter into an agreement concerning repatriation of the moral and material damage caused by a delict will be sanctioned (a coercive act) by general international law (ex. war, invasion etc.) B. Sanction and obligation are different concepts: Sanction is conditioned by a delict composed of two acts: 1. t he beh av io r cau sin g t he dam age an d 2. t he n on rep arat io n of th e d amag e. Sanction constitutes a primary obligation to refrain from the behavior causing the damage and a substitute obligation to repair the damage in case of nonfulfillment of the primary obligation. C. International Sanctions as enforcement measures. Sanctions of International Law can only be enforced by individual states and not by special organs (decentralization). International law then has a character of a primitive law because it is not established by special legislative, judicial or administrative organ but leaves its functions to the individual organs Principle of self-help exists because individual states are authorized to execute the laws (to take the law in their own hands)
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IV. Reprisals There are two different kinds of forcible interference in a state’s sphere of interest which is protected by international law 1. limited interference (it is restricted to the violation of certain interest of a certain state – considered as a delict unless it has a character of reprisal reprisal – acts which although normally illegal are exceptionally permitted as reaction of one state against a violation of its right buy another state. ex. confiscation of property or non-fulfillment of treaty obligation). Reprisal is a sanction of international law because they are reactions against violations of international law; must be in proportion to the international delict. 2. unlimited interference (it may affect all interest of a state) War Note: legality or illegality of war depends on whether it is waged by one state against another unilaterally or it is just a counter war. A war (aggressive war) waged by one against another state is said to be illegal. A counter war is legal (it is a sanction). •
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However, not every war of aggression is illegal. Under the Kellog-Briand Pact, a state may resort to war against another country which violated the pact or agreement. In this case, the war of aggression is legal, the war of defense is illegal.
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THE ROOTS OF INTERNATIONAL LAW AND THE TEACHINGS OF FRANCISCO DE VITORIA Joseph M. de Torre Gaudium et Spes – Vatican statement which said that peace is not simply the absence of war, nor is it the effect of a despotic domination, rather it defines itself with all the precision as a ‘work of justice’ I. •
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The Predicament of the Past Spiral of wars over the centuries had finally crystallized in the Marxist class struggle This struggle is a confluence of: (a) Machiavellinism (the end justifies the means – reprehensible actions may be justified by their effects); (b) Hegelianism (soldier is the universal man – in war, man’s moral qualities can be displayed on a heroic scale; war is a rational phenomenon, an ethical health of nations; a means by which people’s spirit acquires renewed vigor. (c) Darwinism (survival of the strongest in the struggle for life) Such a situation provoked the following aphorism of the peace movement: “peace at all cost”; “better red than dead. In order to restore the balance between these two extremes (militarism and pacifism), a new concept of peace must be created.
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In the past, all nations seem to be in a continuous state of war where peace was the exception and war the rule – a fact rationalized by philosophers: (a) Hobbes – the natural state of the society is “the war of all against all”; “ the state of nature is solitary, poor, nasty, brutish and short”; man is a wolf man (homo homini lupus – a famous formula of A roman poet Plautus). (b) Han Fei Tzu – man is evil by nature, only brute force can restrain the masses (c) Machiavelli and Spinoza – royal absolutism is the only way to end man’s evil nature. Rousseu rejected this view, affirming the natural goodness of man before he is corrupted by society Rise and effect of Religious militarism The glorification of the warrior in the past has degenerated the noble profession of defending one’s country into militarism. This phenomenon has provided occasion for nations to turn to polytheism an idolatry in their search for supernatural being that could assist them in thir struggle against other nations. Judaism, Christianity and Islam have sustained the original monotheism but even these religions fell victim to fanaticism that led them into war against each other and even members of their own faith.
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t he t h ir ty year s wa r – t h e cl ima x of t he w ar o f r eli gio n pi tt in g Catholics, Calvinist, Lutherans and orthodox against each other. (b) the Muslim Jihad – regarded as self-defense; a combination of religious fanaticism and political and economic greed under the dignified umbrella of nationalism and racism (originally, Jihad for Islam is to be primarily waged wither for protecting the interest of the oppressed and the weak or to defend oneself against aggression) Edict of Nantes and the Treaty of Westphalia – formation of nations states; each religious groups were kept in their own territory (cuius regio eius religio). The partition of religions by territory was also the result of the Enlightenment. These produced religious indifferentism : all religions are the same and should be tolerated as long as they do not fall prey to dogmatism or cause social disturbance However, religious toleration is opposed by the Catholic church because what should be maintained is religious liberty (the right to worship God in accordance with one’s conscience, free from external control), not toleration. Hope for the future Efforts in the past ended in failure precisely because the means employed were violent. If violence was used to stop violence, it will generate more violence. The only way to achieve peace is to abstain from violence TRUTH ABOUT MAN (a) that the dignity of human person is rooted in his transcendence or capacity of self-surpassing through knowledge and love which makes human person a subject of rights
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These human rights are the core of human essence and thereby of human existence, permanent, inalienable, and God given. (c ) The r eco gn it io n o f t his t ru th abo ut man i s th e on ly p oss ib le platform for a dialogue toward peace. (d) The inseparable link between peace and human rights (e) The truth is a common patrimony of mankind and not exclusive concern of any particular religion but common possession of all religions open to the transcendence of God; calls for religious freedom (f) This is an argument based on reason and not based on religion The papal discourse combated directly the core of Marxist ideology : the suppression of individual personal freedom and the total absorption of man into the community. The is why Marxism is unable to recognize the transcendence of human person. MOST fundamental of man’s freedom: his orientation toward infinity and boundless creativity from God. True freedom: the power to choose without external coercion; balanced by justice. Freedom is indispensable for peace but not sufficient because it naturally entails the risk of misuse, but a risk that must be taken for man to achieve the common good Common good is not the greatest goof for the greatest number but the good for every man and the “whole” man. TWO GREAT ENCYCICALS ON PEACE •
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Pacem Teris: by the natural law, every human being has the right to respect for his person, to his good reputation. Populorum Progressio: every man is called upon to develop and fulfill himself, for every life is a vocation. By the unaided effort of his own intelligence and his will each man can grow in humanity, can enhance his personal growth, can become a person.
III. Recent attempts to promote an Institution of peace Francis ****Francisco de Vitoria – precursor and the Father of International Law Vitoria’s teaching is rooted in that of St. Thomas Aquinas Emphasize human rights as a condition for peace and order, an idea partially reflected in the American declaration of Independence. Human rights are rights derived from God International attempts to institutionalize the ideas of Francisco de Vitoria: A. The League of Nations B. United Nations -- promulgated the Universal declaration of Human Rights as a juridical guarantee of peace. During these times, the old formula “if you want peace, prepare for war” was replaced with “if you want peace, respect human rights” The list of human rights starts with the right of the unborn. Thus, the greatest destroyer of peace today is abortion because it is not just a war against the child, it is a direct murder by the mother herself. • •
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In Populorum Progression, it was said that DEVELOPMENT is the new name for PEACE. Development is defined as the total promotion of man based on an “integral humanism” Development is the philosophical basis that can be accepted by all religions. It is universal not secularist. The existing inequalities among human beings are not supposed to be adversarial or dialectical in the Hegelian-Marxist sense but complementary and harmonizable. Cooperation and solidarity are natural extension of the underlying unity of all mankind—should not be confused with pacifism or ‘peace at all costs” or “irenecism” of compromise at the expense of truth. Only by channeling out aggressiveness toward ourselves in the struggle against selfishness that we can really bring about peace.
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The Catholic Church and slavery “catholic” means universal in outlook, at the same time, involved in the reality of actual peoples and communities Christianity, with its radical natural law affirmation of the fundamental equality and dignity of all men, fermented social change (especially in the institution of slavery that was espoused by Aristotle) The idea of slavery (and forced labor) made war necessary in order to conquer new land and new slaves. Slavery made mercantilism and static economy the prevailing doctrines. These ideas were refuted by de Vitoria However Christianity was not able to flourish initially due to universal acceptance of the Aristotelian fallacy. It commenced a process of cultural transformation, gradually humanizing slavery war, poverty etc. by favoring the introduction of practices and laws to this effect. Christianity always defended and protected the dignity of man and his labor. •
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Revolutionary ideas ushered in, not due to Locke’s liberal reaction to Hobbes’ absolutism but from the work of 16th century Spanish economist like de Vitoria.
IV. Works of de Vitoria He courageously expounded the fundamental equality of all human beings and acknowledged that the ultimate sovereignty of the people is given to them buy God. Spelled out the inviolable rights to life, to liberty, and to self-rule including the right to private economic initiative and to participation in public life. Due to Vitoria’s lectures, Pope Paul III authorized the excommunication of those colonists in the New World who deprived the natives of life, liberty or property thus, Charles V promised to promulgate the New laws of the indies to guarantee rights It was Vitoria who set in motion the ‘revolution of human rights” which crystallized in modern democracies and contemporary international organizations. His philosophy on fundamental equality of all persons is rooted on a Christian theology that illuminated the natural law, witnessed by human reason. •
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The PHILOSOPHY OF ORDER – Vitoria’s philosophy focused on the human person and human society. Vitoria’s principles: (a) There is no such thing as a right to war, only right to self defense (b) All men are equal despite their inequalities (c) Men can never lose their fundamental rights even if they fall into sin (d) There is no divine right of kings (e) Rejected theocratic imperialism and in its place advocated a universal community of nation ruled by natural law (law of nations – ius gentium) The Philosophy of Order A basis and justification for the power to govern A rational ordering, not arbitrary or voluntaristic The power bestowed on rulers by the people but not by the people as numbers but to the people as a community of persons aware of their subjective responsibility and dignity as beings open to infinite transcendence and objective value. Accdg. To Jacques Maritain, there is no need to add that the will of the people is not sovereign, that what would please the people would have the force of law. The right of the people to govern themselves stem from natural law. An unjust law, even if it expresses the will of the people, is not a law. Based on natural law (ex. no one is a slave by nature – Aquinas) Philosophy of power (Hobbes, Rousseau etc) Continued from the French revolution on to modern individualism (democracy of the individual) and achieved in totalitarian socialism In the declaration of the rights of man (product of French revolution) it is state that the law is an expression of the general will – not a rational ordering. Such thinking would lead to ‘democracy of tyranny” Problem with this declaring law as expression of general will: men are deprived of a point of reference beyond and above themselves, thus, men can now turn to one another as wolves and try to make a Leviathan, an absolute state to impose order on all. Socialist or collectivist forms of Philosophy of power: Fascism, Nazism, etc. Vitoria and his followers Grotius should not be called the Father of international law for he merely utilized Vitoria’s thesis on just war. Following Vitoria’s thoughts, Grotius roots natural law on God as the author of human nature and natural sociability Pufendorf enumerated the natural duties of man which he based on Vitoria’s teachings: (a) to know God as Supreme Being (b ) To k now hi ms el f an d h is o wn n at ur e we ll ( to ac kn ow ledge dependence to God) (c) To seek one’s esteem and honor (d) To seek wealth with moderation (e) Subject passion to reason (f ) To exerc ise just self defense
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Vitoria’s ideal: a community of nations in pursuit of peace culminated in the formation of the United Nations. Moral principles and guidelines are like human rights, universally valid and inherent in human nature. To achieve our goals of peace, an in-depth stuffy of the concept of law must be undertaken with a thorough knowledge of history. •
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1 for Justice Thomas, natural law is the higher law philosophy of the Founding fathers and BEST defense of liberty and of limiting government; best defense of judicial review. Anyone who cares about life cares about natural law. 2 not everything legal is right, natural law makes a difference (natural law promotes life) 3 natural law—set of directions written into our nature so that we could discover through reason how we ought to act.; REVELATION would enable us to know with certainty how we ought to act. NATURAL LAW IS A GUIDE FOR INDIVIDUAL CONDUCT; SERVES STANDARD FOR THE LAWS ENACTED BY THE STATE. 4 NATURAL LAW existed before Catholicism and its principles are rooted in nature and knowable to reason (SOPHOCLES ANTIGONE—there is a higher law alive and forever). Case of Bonham: practicing medicine without license, EDWARD COKE said that parliament has no right punishing the physician by saying that when parliament is against the common right, common law must control it. CALVIN CASE: lex aetarna or law of nature is infused into one’s heat for preservation and direction.. WILLIAM BLACKSTONE: WILL OF THE MAKER, LAW OF NATURE. GEORGE MASON – all acts of legislature contrary to natural right and justice are void) 5 Modern jurisprudence: enlightenment; LAWS are man made (due to social contract) The jurisprudence of enlightenment is an individualist utilitarian positivism: no room for institutions, family and other social groups between the individual and the state (merely an exercise of WILL and not REASON) ex. ROE vs. WADE; CRUZAN vs. DIRECTOR, MISSOURI where unborn and dying can be deprived rights.
NOTE ON JUSTICE AND FINNIS Rawls may be a fan of Aquinas: in Summa, justice is a habit whereby a man renders each one his due by a constant action and will/choice. Justice is one of the more superior virtues because with it, you exercise the will (rationality) – an exercise of freedom ergo, RAWLS may be supporting natural law. communitative justice : consist of rendering to a person one to one (follows arithmetic progression) distributive justice – rendering justice to many: concerns itseld with distribution of common goods proportionality to the many (observe geometrical proportion) What is our task? To know what is due to others. DUENESS : concept of entitlement where a person has some authority over you. Produces respect
6 4 Aquinas: LAW is an ordinance of reason for the common good. Eternal Law: rational orderliness of the universe; the divine reason’s conception of things Natural Law: the participation of the rational orderliness of the universe in the rational creature; because of this, we discern what is good and evil. ***MORAL VIRTUES: matters that are ordered to GOD as their end MANS BASIC INCLINATIONS: to seek the good (highest Good: eternal happiness with God); preserve himself in existence preserve the species—unite sexually: live in the community with other men: to us his intellect and will. HUMAN LAW—particular determinations devised by human reason: DIVINE LAW –law given by God (because we are not perfect) *** for enlightenment, they organize the society as if God do not exist. Put a line ED/NH
EQUALITY: JUSTICE TEMPERED WITH MERCY
7 general principles are equally known to us but as to proper conclusion of the practical reason, neither truth or rectitude are the same for everybody (why the difference: because of obstacles like perverted passions, evil disposition etc
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8 Human law is integral in part of God’s Plan, designed to promote the common good and help man attain his highest end of happiness with God. HUMAN LAW MAY
