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# WEEK #1 - WHAT IS PHILOSOPHY LAW & TRIBAL LAWS **Tuesday, January 28, 2025** **NOTES** ## What are the three Commonplaces about law? * The law is a social phenomena * The law is authoritative * The law is for the common good ## Normative vs Jurisprudence * **Normative jurisprudence**...

# WEEK #1 - WHAT IS PHILOSOPHY LAW & TRIBAL LAWS **Tuesday, January 28, 2025** **NOTES** ## What are the three Commonplaces about law? * The law is a social phenomena * The law is authoritative * The law is for the common good ## Normative vs Jurisprudence * **Normative jurisprudence** focuses on the "ought" questions of law, examining the moral and ethical foundations of legal systems and asking whether laws are just or fair (e.g., Natural Law). * **Analytical jurisprudence** focuses on the "is" questions, analyzing the structure and concepts of law itself to understand its nature and distinguish it from other systems of norms like morality (Positivism). ## What is Tribal Law? * Tribal law exists as a customary, community-based system rather than a politically enforced one. * It remains active in many cultures, influencing modern legal systems, including common law. * Tribal laws were integral to maintaining order and social harmony before the emergence of centralized government. * Unlike modern legal systems, tribal laws are deeply tied to cosmological and religious beliefs. * Violations of law were seen as disturbances to both social and supernatural orders, affecting entire communities. * Examples include Inuit beliefs that wrongdoings could bring bad weather or poor hunting luck. * In tribal societies, legal responsibility rested with the family or clan, not the individual. * Laws governed relationships between families and sought to restore individuals to their place within the community. * Banishment was the most severe punishment as it stripped a person of their social identity. ## Inuit Law * Dispute resolution relied on elders, shamans, and community consensus rather than written laws. * Social norms and cosmic order were intertwined; transgressions affected both human society and the natural world. * Concepts such as "angakkuuniq" (shamanism) played a role in maintaining legal and social balance. ## Apache Law * Marriage laws were strictly enforced to prevent incest within clans. * Property rights were communal, and upon the death of a spouse, their share reverted to the clan. ## Welsh and Anglo-Saxon Law * Blood feuds were common, but compensation payments (galanas) were introduced to settle disputes. * The legal system was clan-based, and justice often involved negotiations rather than state enforcement. ## Cheyenne Law * Sexual misconduct was severely punished, often leading to immediate retribution from the victim's family. * Social harmony and restitution were prioritized over punitive measures. ## The transition to written laws * The transition to written laws led to a shift from consensus-based governance to state-controlled legal systems. * Modern legal positivism (the idea that laws are valid because they are passed by the state) conflicts with earlier notions of law rooted in tradition and community values. ## Tribal Law vs. Modern Legal System * In tribal law, legal rules were internalized as moral and cultural obligations. * In contrast, modern legal systems rely on external enforcement mechanisms (police, courts, state authority). * This shift reflects the rise of state power and the weakening of communal legal traditions. * Some anthropologists argue that tribal societies had no "real" law since they lacked formal legal institutions. * Others contend that tribal customs functioned as law, fulfilling the same roles as modern legal codes. ## Outlawry * Outlawry- the legal and social condition where an individual is declared outside the protection of the law and society. This meant that the outlaw was no longer recognized as a member of the tribe or legal community and could be harmed or even killed without consequence. * Anglo-Saxon Law: Declaring someone an outlaw meant that person lost all protection, and their property could be seized. * Indigenous Tribal Laws: While some indigenous societies had forms of outlawry, banishment was a more common alternative to maintain social balance. ## Thomas Hobbes on the State of Nature * Thomas Hobbes describes the state of nature as a hypothetical condition in which human beings exist without government, laws, or a central authority. * According to Hobbes: * The state of nature is a condition of complete freedom and equality- there is no ruler, and everyone has an equal right to everything. * However, this leads to chaos and insecurity, as people pursue their own interests without restraint. * Human beings, driven by self-preservation, act in ways that often conflict with others' interests. * Hobbes argues that the state of nature inevitably results in a state of war, where: * There is constant fear of violence, as people are in competition for survival. * No one can trust anyone else, leading to preemptive attacks (striking first before being attacked). * There are no moral or legal constraints, as laws and justice exist only with a governing authority ## Social Contract * Since life in the state of nature is unbearable, rational individuals agree to form a social contract. * They surrender their absolute freedoms to a sovereign (government) in exchange for security and order. * The sovereign-whether a monarch or a governing body- must have absolute power to enforce peace and prevent society from collapsing back into a state of war.