Philosophy of Law and Security PDF Notes

Philosophy of Law and Security Reading material notes, Lecture 1: Notes from Gustav Radbruch, Legal Philosophy: Key Themes of Section 1: 1. Law as a Cultural Concept o Law is a reality directed toward serving a value: the idea of law. o The idea of law is justice,...

Philosophy of Law and Security Reading material notes, Lecture 1: Notes from Gustav Radbruch, Legal Philosophy: Key Themes of Section 1: 1. Law as a Cultural Concept o Law is a reality directed toward serving a value: the idea of law. o The idea of law is justice, which is an absolute value (independent and not derived from other values). o Law is a set of rules put on people that they must abide by (arguably the practical application of the enforcement of control as a tool for the elite) o Law is there to provide a sense of peace and security for the people, to regulate their behaviours, for order and certainty, to promote lasting relationships between citizens and between citizens and the state, to promote social welfare, and to (arguably) protect elite interests/maintain the status quo 2. Justice as the Idea of Law o Justice is not just a moral quality or personal virtue, but an objective principle focused on relationships between people. o Difference between moral good and justice: ▪ Moral good evaluates individuals (e.g., will, character, sentiment). ▪ Justice evaluates relations between individuals. o Ideal justice = ideal social order. 3. Two Types of Justice o Commutative Justice: ▪ Equality in exchanges (e.g., work and wage, damage and compensation). ▪ Justice in relations of co-equals (private law). o Distributive Justice: ▪ Fair allocation based on merit, need, or ability (e.g., taxation or punishment). ▪ Justice in hierarchical relations (public law). o Mutual Relationship: ▪ Commutative justice relies on distributive justice to establish equal rights/status. ▪ Distributive justice is the prototype of justice.  4. Limitations of Justice in Explaining Law o Justice alone cannot define who should be treated equally or unequally—this requires an external viewpoint. o Justice needs other principles to determine specifics (e.g., type of punishment for crimes). o Justice is the defining principle of law but not its exhaustive explanation. Important Quotes and Concepts “Law is the reality the meaning of which is to serve justice.” Aristotle's doctrine: o Commutative Justice = coordination (between equals, private law). o Distributive Justice = subordination (hierarchical relations, public law). Justice requires additional principles to create practical rules. Summary Radbruch views law as a cultural concept directed toward the absolute value of justice. Justice is understood in two forms: commutative (equality in exchanges) and distributive (fair allocation based on hierarchy). While justice is central to defining law, it requires complementary principles to address practical legal questions. Section 2: The Purpose of Law 1. Insufficiency of Justice Alone Justice defines the form of law but not its content. Justice requires two additional determinations: o Who is equal or different? o How should they be treated? Justice must be supplemented by the idea of expediency, especially in relation to the purpose of the state. 2. Purpose of Law and State Law partially represents the will of the state, and the state is an institution of law. The purpose of law aligns with ethical values, specifically the ideal of the good. Law indirectly incorporates the logical (truth) and aesthetic (beauty) values through their ethical character. 3. Ethical Values Ethical values include:  o Individual values: Focus on human personality. o Collective values: Focus on groups or collective entities. o Work values: Aesthetic and logical values revealed through arts and sciences. 4. Value Conflicts These three types of values are mutually exclusive and cannot be equally prioritised. A choice must be made between prioritising: o Individual values (personality). o Collective values (group). o Work values (creation). 5. Three Alternatives of World Outlook Individualistic view: o Values personal freedom above all. o Law and state serve individuals. Transindividualistic view: o Prioritises the collective (e.g., nation). o Law and state aim to serve society as a whole. Transpersonal view: o Prioritises work values (e.g., culture). o Law and state serve collective cultural efforts. 6. Three Views of the Law Individualistic: o Law and state are relations between individuals. Transindividualistic: o Law and state exist as a totality above individuals. Transpersonal: o Law and state focus on individuals' contributions to shared work or culture. Summary of Slogans for Each View Freedom: Individualistic. Nation: Transindividualistic. Culture: Transpersonal. Summary of Section 3: Antinomies of the Idea of Law 1. Core Elements of Law: o Justice: Treats equals equally and unequals unequally but requires a basis for determining equality or inequality. Justice focuses on fairness but lacks specificity in application. o Expediency: Concerns the practical purpose and suitability of laws, which is inherently relativistic and subjective, as it depends on varying perspectives. o Legal Certainty: Ensures stability and enforceability of laws. The law must be positive (established and enforceable) to maintain order and peace. 2. Interrelations and Conflicts: o Justice and expediency often conflict. Justice generalises based on equality, while expediency individualises based on practical realities. o Legal certainty can clash with justice and expediency. While certainty demands clear and enforceable laws, it may compromise fairness (justice) or practicality (expediency). o Examples include the statute of limitations and adverse possession, where legal certainty legitimises illegal situations for stability. 3. Tensions Among Principles: o No absolute hierarchy exists among justice, expediency, and legal certainty. Each principle is of equal value but can contradict the others. o The balance among these principles depends on individual conscience and societal needs. 4. Philosophical Perspective: o Law is inherently antinomic, involving contradictions that reflect life’s complexities and decisions. o Legal philosophy does not resolve these contradictions but highlights them, enabling informed decision-making. 5. Role of Positive Law: o Positive law prioritises legal certainty to maintain peace and order, sometimes even at the expense of justice and expediency. o Judges are bound to enforce positive law, subordinating their moral judgments to ensure stability. However, extreme cases of unjust laws may provoke moral resistance. Notes from Veitch, Christodoulidis, and Goldoni, Jurisprudence: Themes and concepts Revision Notes: Thomas Hobbes, Theorist of the Modern State Context and Significance Leviathan (1651): Written during Hobbes's exile in France amidst the English Civil Wars (1642–1651). Published after King Charles I’s execution and the establishment of the Republic. Justifies the need for a strong, unitary sovereign state. Considered foundational for modern political thought (Tuck, 1996). Themes in Leviathan 1. The Leviathan o A character created by Hobbs, as a personification of the State/a body that encases society as a whole o An embodiment of the consent of the people to be governed by a “higher” power o The crown on the Leviathan is indicative of sovereignty o The sword of the Leviathan is indicative of the protection of its sovereignty, and shows that it is the highest worldly authority (against a threat to security/source of insecurity), and to enact the law upon others- the monopoly of force. o The sceptre of the Leviathan indicates that the state holds the highest religious authority 2. Order, Peace, and Security o Societies require a mechanism to establish and maintain order. o The state of nature: A hypothetical pre-societal condition characterised by: ▪ Insecurity and fear of violent death: "Life is solitary, poor, nasty, brutish, and short." ▪ Lack of common standards for right and wrong, justice, or laws. ▪ Absence of property; only possession exists, sustained by force. o Individuals, realising the chaos of this state, recognise the need for peace. o Laws of nature: ▪ Seek peace. ▪ Lay down individual rights for mutual benefit, leading to the formation of a sovereign. 3. Equality, Individual, and Consent o Social contract: Agreement where individuals transfer their strength and rights to a sovereign.  o Sovereign (Leviathan): ▪ Represents the collective will. ▪ Holds absolute power to maintain order and enforce laws. ▪ Derives legitimacy from the covenant formed by the people. Key Insights The state of nature is a theoretical construct, not a historical account. Hobbes acknowledges two real-life parallels: 1. Civil war: A real-world example of disorder. 2. “Savage” societies without government (problematic colonial bias noted). Sovereignty and Authority Social contract is a contract of alienation: o People permanently surrender individual power for collective security. o Sovereign has a monopoly on lawmaking and enforcement. The power of the sovereign is symbolised by: o The sword: Enforces civil peace. o The crosier: Supremacy over religious authorities. Sovereign can regulate actions but not personal beliefs (precursor to liberal thought). Hobbes's Legacy A centralised state ensures peace, order, and defence but requires obedience. The Leviathan is described as a "mortal god": o God-like in power but created by humans to secure civil order. Lecture 1 For the exam (from this week) to know: Radbruch texts Hobbes texts The cave case Notes on the course: 3 weeks of classes, exam is in week 4- this is essentially an intensive course, so keep up with the reading. On the exam: written exam with open questions. Four open questions regarding cases. Assessment criteria include your understanding of the basic philosophical concepts and traditions, development of the argument, and the ability to relate theory to practice. Examples of old exam questions are available online. Is philosophy of law and security just another perspective on security etc.? Yes- philosophy’s perspective builds on but is irreducible to the perspectives of law and the (social) sciences No- legal philosophy aspires to offer a framework to critically reflect upon underlying conceptual and normative issues of legal and societal problems. It aims to provide a deeper understanding. Philosophers ask questions when lawyers and social scientists present answers. Philosophers always pose questions- answers should not be taken seriously (lol?). Philosophers try to define fundamental concepts and tease out and critically assess underlying assumptions. This course will focus on a western perspective, partially due to our location, as well as time constraints. It is also focusing on modern and contemporary perspectives, allowing for applications in the “here and now”. Bottom-up approach, with cases shown which intertwine with philosophical theories and legal and societal problems. Gustav Radbruch: The concept of law Arguably the most difficult text of the course Important to read, make sure you understand it, it is a valuable and fundamental text for all discussions on law and politics. He looked for the necessary components of the concept of law. If we want to understand law, what it is, what do we necessarily need to presuppose? Answer: we have to presuppose 3 values. These values help to answer the following questions. Why is there law? - To provide a sense of peace and security for the people - To regulate behaviours of people  - To protect elite interests/maintain the status quo What is law? - A set of rules put on a people that they must abide by. By humans for humans, to create equality among people. - The practical application of the enforcement of control as a tool for the elite How to apply law to a specific case? - Literally by looking up the different doctrines - This question is quintessentially applicable to judges - We need to look at the case, the specificity of the case, understand/interpret the law, and effectively apply it. Radbruch’s claim is that he can answer these questions by looking at his 3 values. These are: 1. Justice 2. Legal certainty 3. Expediency/Purposiveness Looking at the 3 questions again: Why is there law? - To promote equality and justice in society. For order, for certainty. Law is there to promote lasting relationships between citizens and between citizens and the State (horizontal and vertical). Law is always there to attain a certain purpose- to promote social welfare, the welfare of society as a whole (what is welfare?). What is law? Answer 1.a: Natural law theory: Emphasis on justice - Law is natural law. - Human law is an elaboration of natural law according to time and place - Natural law applies directly, and we all have access to it via our reason. - It is higher law, so it prevails over human law which may say something else. The “Leviathan”- a character created by Hobbs. A body that encases a society as a whole. A kind of personification of the State, since it is an embodiment of the consent of the people to be governed by a “higher” power. The name Leviathan is a biblical sea monster- why give the same name? The crown on the Leviathan is an indication of sovereignty. The State holds a sword to protect its sovereignty (against a threat to security/source of insecurity) and to enact the law upon others- the monopoly of force. The state also holds a sceptre, which symbolises that the state holds the highest religious authority (and the sword symbolises the highest worldly authority). The Leviathan was created by Hobbs during a time of civil war. For this reason, the State in the image is large, imposing etc. Answer 2:  Legal positivism: Emphasis on legal certainty - Positive law - Made and enforced by an authority- customary law, doctrines and treaties, and jurisprudence (case law). - Hierarchy - The state is the only one with the authority to use force (?) - Separation between law and morality – this doesn’t mean that positive law is necessarily immoral, but it is not the same as morality. - The letter of the law – Not an expansive interpretation, you look to the literal, grammatical meaning of the scripture. If a judge is creative with their judgements, there can be no legal certainty. Answer 1.b: Constructivism: Emphasis on justice - A reaction to positivism - There is more law: underlying principles - Law is a dynamic phenomenon, not set in place by a legislator - Judges are actively involved in the development of law, making them more creative - Rely on unwritten principles of the legal system itself- this indicates the differences between this theory and natural law theory. The principles of law are not some kind of higher law in the heavens- they are principles used often in the legal system by lawyers- though they are sometimes unwritten. Answer 3.a: Legal realism: Emphasis on expediency - Law is a tool, a political instrument. Used to shape societies - What one can predict from what judges do. And the judge should always make the decision which has the best consequences for society as a whole- and if you study this, you can predict what the judges will choose. - The best consequences for society - An efficient (including economic value) decision in view of the future - Contrary to positivism, here, the judge will not look back to the previous judgements etc., the judge will look forward, to decide what is best for society, and according to the realist perspective, this is the decision that the judge must take. Answer 3.b: Critical legal studies: Emphasis on expediency - Law is politics, there is no fundamental difference. Politics it the professional outcome of the ongoing ideological battle. - Radical indeterminacy of the law- the law doesn’t tell us what the right decision is. - Political decisions- typically made by judges, which protect the interests and needs of those that are in power. - Can be developed through (for example) critical race theories, which posit that white supremacy is upheld through current political legal approaches. Marxist theories are also  encompassed in much of this approach. There is something radically wrong with the law- this is the running theme, often preaching that something must be changed fundamentally in how we perceive/practice law and order. Radbruch: The three values of law Relationship between his three values are described as antinomic: They need each other and they collide. - Values need one another 1. Presentation in the text 2. Relativism – one value may not always prevail 3. No synthesis – not always possible for all values to have equal placement - Values may collide 1. Justice requires general rules – only through this can we have equality among citizens 2. Expediency calls for individual solutions – asks for individual solutions that are tailored to the case at hand 3. Legal certainty requires positive (that you can know them and find them) and practicable (enforceable) rules Examples in practice: 1. Colonial injustice: robbed artifacts - Legal certainty- given the time that has passes, museums are the rightful owners of the robbed artifacts - Justice and expediency – see slide 2. Armenian boy raised and born in NL but here under an illegal immigrant mother/without a residence permit, must be deported. An asylum case - Legal certainty- he is here illegally, so he can be deported - Justice and expediency – each case should be dealt with individually. Room for leniency in a specific case. 3. PM urged to strip UK citizenship from jihadi terrorists and Assad supporters – because people travel to the UK, we don’t want them in our society, so we strip them of their nationalities. - Legal certainty – no retroactivity. See slide - Expediency - under the value of expediency, you could defend such a measure- the purpose of law is to make the UK safer. The purpose is security, so you strip citizenship. Strip nationality in order to prevent a return to society Seminar 1: Notes (homework) Jurisprudence: Hobbes 1. What does Hobbes mean by ‘the state of nature’ and by what is it characterized? The State of Nature represents a hypothetical condition of human existence before/without the establishment of political authority of government, organised society, laws etc. It is a philosophical device used to understand why humans consent to form societies and governments. Characteristics of the state of nature: - Equality of power and vulnerability: this creates mutual fear, either directly or through alliances - Scarcity of resources - Self-interest and instinct for survival - Lack of authority or laws - War of all against all, bellum omnium contra omnes: there is a perpetual state of conflict, where everyone is in competition with each other - Miserable existence: “solitary, poor, nasty, brutish and short” life in the state of nature - There is no authority. So, individuals can reduce their rights/strengths to a sovereign power. Better to seek peace than endure chaos. - “State” in terms of there being a situation, rather than a state as an authority- there is no authority in the state of nature - Homo homini lupus est- People act out of fear, and the fact that there is always someone to compete against which leads to fear “even the strongest man must sleep”. 2. What does Hobbes mean by ‘the social contract’? In your answer, also pay attention to the notions of individualism, equality and consent. The Social Contract explains the transition from the anarchic state of nature to an organised society under a sovereign authority. It is a hypothetical agreement in which individuals collectively consent to give up some of their natural freedoms in exchange for security, order, and protection provided by a central authority (the sovereign). The contract is not between individuals and the sovereign but among individuals, who agree to submit to the authority of the sovereign for their mutual benefit. Relates to the Leviathan, which is the “personification” of the state. The Leviathan can enforce the law onto every individual- they have the power to use force (the monopoly of force). Individuals give up power to the authority, and in return they receive security. A contract of alienation- you give something away, (there is a reciprocal) willingness to give up the nature right to kill each other. Social contract because society/leviathan/state begins. No religion higher than the state. Individualism: Hobbes begins by acknowledging that individuals are independent, rational beings motivated by self-preservation and self-interest. The social contract emerges from this individualistic perspective: - Each person acts to preserve their own life and avoid the dangers of the state of nature - Individuals agree to the contract not out of altruism but because it is in their rational self- interest to ensure peace and security - All individuals are equal individuals  - The desire for peace of individuals creates the Leviathan - Minimal concept of security, since they must simply obey the law Equality: Hobbes emphasises that humans are naturally equal in power and vulnerability, even in the state of nature. Nobody is strong enough to not be overpowered by others, and this creates mutual fear. In the social contract, this equality is preserved, as: - Everyone equally consents to give up certain freedoms - Everyone equally agrees to submit to the laws of the sovereign Consent: Individuals voluntarily agree to surrender some of their natural freedoms (e.g. the right to do whatever they please) to the sovereign in exchange for security and order. Consent is rational because it allows individuals to escape the dangers of the state of nature. Once the contract is made, however, the sovereign’s authority is absolute, and individuals can’t revoke consent unless the sovereign fails to provide peace and protection. State of nature: no state, constant insecurity, no common standards, homo homini lupus est, war of man against every man. Social contract: Each individual renounces their own strength and agrees with everyone else to seek peace. It is necessary to establish a single source of authority, the sovereign who represents everyone and who has sufficient power to secure peace and enforce the law. This agreement is the social contract. Radbruch 1. According to Radbruch, ‘law is the reality the meaning of which is to serve justice.’ Following Aristotle, Radbruch equates justice with equality and distinguishes between two kinds of equality: absolute and relative. What is the difference between the two? Which one prevails? Here, justice refers to equality. First you need to establish the (un)equality between persons, then you can proceed with the legal procedure. Absolute equality/relative equality: Treating all individuals equally, without distinction. Assumes that justice requires complete uniformity, treating all persons in exactly the same way regardless of circumstances, needs, or contributions etc. Implies a universal application of rights, duties, and resources. Often considered impractical and unfair since people have different needs etc, and treating unequals equally can result in injustice. Relative equality/distributive equality: Treating individuals equally relative to their differences or circumstances. Require recognising relevant differences between individuals and treating them accordingly, so that justice is proportional. In Aristotle’s terms, justice means treating equals equally and unequals unequally, in proportion to their inequality. According to Radbruch, relative equality prevails, since is aligns with the practical realities of justice and fairness in society. 2. For which two reasons does justice not suffice as the principle of law? ** not sure if this is answered right… Radbruch argues that legal certainty and purposiveness are necessary, alongside justice, as principles of law. Justice alone is insufficient because the law must also provide predictability, order, and stability. Justice must also account for the practical purposes of law in society, which include promoting the common good and serving societal interests. The concept of law contains three pillars. Radbruch incorporates these ideas into his "three pillars of law": 1. Justice: Ensures fairness and equality. 2. Legal Certainty: Ensures clarity and consistency. Has to do with positive law. 3. Purpose or expediency: Ensures the law achieves broader societal goals. About values. Given by an authority, and if necessary, enforced (by violence- this is why the Leviathan needs a sword). There is no synthesis between the values, they complement each other and they are in contradiction to each other (Radbruch uses ‘antinomic’). There is no fixed order, it is relative to time and place etc. to determine what the balance between the values is. With justice, it doesn’t say who should be treated equally or unequally. It is unequal who is equal to whom. We can also understand the relationship between people with justice, but not the type of appropriate response. Equality/justice says nothing about the content of the treatment. This is why equality is not enough. 3. Justice is complemented by the idea of expediency or purposiveness in order to give law its content. Here, Radbruch argues that the state enters the scene and may be guided by three alternative values. Which three values? In your answer, also mention the corresponding world outlooks and ultimate ends. - The content of the law depends on the political party who is ruling the country- this is why the state enters the scene. Depending on different political approaches/world outlooks that the state has. When it is a liberal state, the ultimate end is individual values (for example). The values remain contested between different parties, which is why we need legal certainty. - Individual values- the worth of individuals. Individualistic world outlooks, meaning the individual is liberal. Liberal political parties, maximising personal freedom. Law and state is the individual end goal of individual values. The state is a means to cultivate the individual. Someone with an individual world outlook will need to maximise their freedom in order to flourish in their own way. Minimal state intervention. - Collective/transindividual values- Morality and culture. Social democrats. Focus on the nation/society as a whole. Public order is prioritised. - Work/transpersonal values- Morality and the law are subservient. Communist parties etc. Work or culture here is prioritised, going beyond the individual. The 3 points above correspond to expediency. According to Radbruch, there is no ultimate goal of law, it depends on your political party etc. But it relies on legal certainty. The purpose/values of law remains contested between different parties.  1. Justice: - World Outlook: Natural Law or Rationalism - Ultimate End: Fairness and Equality - Explanation: Justice, in Radbruch's view, is concerned with the inherent fairness of the law and the equal (equitable) treatment of all individuals. The state's role is to ensure that laws are just, in line with universal moral principles, and protect individual rights. This is grounded in the natural law tradition, which holds that law should be based on objective moral truths discoverable through reason. Laws must align with universal principles/general rules. Absolute adherence to justice can make the legal system very rigid and not applicable to certain situations. 2. Legal Certainty: - World Outlook: Positivism - Ultimate End: Order and Stability - Explanation: Legal certainty emphasises the need for clear, predictable, and consistent application of law. The state must establish laws that are specific, unambiguous, and enforceable to ensure societal stability. This value is associated with legal positivism, which asserts that law is valid not because it reflects moral principles, but because it is enacted by a legitimate authority. Legal certainty is created by the state/sovereign, and it is created by using consistent, codified (positive!) law. Positive = laid down. The law should be clear and understandable to everyone. Publicly accessible, enforceable law. Positive law is important- but it can be very rigid and may sacrifice equality or expediency. 3. Purposiveness or expediency: - World Outlook: Utilitarianism or Pragmatism - Ultimate End: The Common Good and Practical Benefits - Explanation: Expediency focuses on the practical consequences of laws and their ability to serve the public interest. The state's role is to enact laws that are most beneficial for the common good, promoting welfare, economic prosperity, or social harmony. This value aligns with utilitarianism, which judges actions and laws by their ability to maximize overall happiness and societal well-being. Focuses on an individualistic approach (see above). This can be hard to correspond with the other values. Reflects the individualistic approach to maximise freedom for each individual? Completely depends on the political system you are in. Aims for a pragmatic solution, but may sacrifice equality/justice or legal certainty, depending on your world outlook. Gives content to the law (assuming that justice does not sufficiently do so, in terms of justice giving the equity but not the actual treatment of individuals) On page 12 of the syllabus there is a nice summary by Radbruch! 4. Radbruch argues that a third idea or value is needed within the concept of law; legal certainty. Why is this the case? What does legal certainty stand for? Legal certainty is a third essential value within the concept of law, complementing justice and expediency or utility. Legal certainty is crucial because it ensures that laws are predictable, stable, and clearly defined, providing a framework within which individuals and institutions can reliably act. Without it, the legal system would be chaotic and arbitrary, undermining the rule of law and justice. - Prevention of arbitrariness: Without legal certainty, laws could be applied inconsistently, leading to arbitrary decisions that undermine the fairness and predictability of the legal system. If laws are vague or constantly changing, individuals would be unable to know in advance what the law requires of them, which could lead to confusion and injustice. - Enablement of stability and order: Legal certainty ensures that there is a consistent framework for the functioning of society. Citizens can plan their actions knowing the legal consequences, and institutions can rely on the law to guide their operations. It is essential for maintaining social order, as it fosters trust in the legal system and ensures the smooth functioning of society. - Protection of rights: The value of legal certainty also lies in its protection of individual rights. By establishing clear rules and standards, the law ensures that rights and duties are defined, thereby reducing the likelihood of arbitrary infringement. For individuals, certainty in the law is critical for knowing their legal rights and obligations and for securing their protection under the law. Legal certain stands for: - clarity and precision (laws shaw be clear, unambiguous, and accessible so that individuals can clearly understand what is required of them) - Predictability (legal outcomes should be foreseeable, meaning people can anticipate the likely consequences of their actions under the law) - Consistency (laws should be applied in a uniform way, regardless of who is involved) - Stability (laws should not change constantly, allowing individuals and businesses to make long-term plans without the fear of unpredictable legal shifts) 5. Why does Radbruch write that there are tensions between the three values? Radbruch argues that there are tensions between the three values of justice, legal certainty, and expediency (utility) because each value, while essential for a functioning legal system, can sometimes be in conflict with the others. These tensions arise because each value reflects a different priority, and in certain situations, pursuing one value may undermine or limit the others. All values demand different approaches. Justice = general, expediency = personal rules etc. Justice vs. Legal Certainty: Tension: In some cases, justice demands that the law be applied flexibly to account for individual circumstances, while legal certainty requires the law to be rigidly applied to ensure consistency and predictability. Justice demands general rules applicable to all equally, but legal certainty can advocate for stricter applications/approaches. Example: A judge may want to make a decision that is fair for an individual, but doing so might conflict with the established legal framework, which demands a certain penalty for a specific crime. Here, pursuing justice could compromise legal certainty. Justice vs. Expediency: Tension: The pursuit of justice may sometimes lead to decisions that conflict with the practical needs of society. Expediency, on the other hand, focuses on achieving societal benefits or practical outcomes, even if that means compromising individual fairness in certain cases. Example: A law might promote the common good (expediency) by limiting certain individual freedoms (e.g., privacy) in the interest of public safety, but this could be seen as unjust from an individual perspective. In this case, prioritising expediency over justice could lead to a moral dilemma. Legal Certainty vs. Expediency: Tension: Legal certainty requires clear, consistent laws, but sometimes expediency demands flexibility or adaptability to changing circumstances. Strict legal certainty can impede practical problem-solving or prevent the law from responding effectively to new societal needs. Example: Laws that are rigid and unchanging may fail to adapt to emerging issues or innovations, such as new technologies, creating a conflict between maintaining certainty and addressing pressing societal needs through more flexible, expedient measures. 6. Legal philosophy, Radbruch concludes, has an antinomic character. What does he mean by this and what consequences does this have for legal validity? Legal theory and the practice of law involve inherent contradictions or tensions between different values, principles, and perspectives. These tensions arise because the goals of law—such as justice, legal certainty, and expediency—can conflict with each other, as explored earlier. The antinomic character refers to the coexistence of opposing or contradictory forces within the legal system that do not always align in a straightforward, harmonious way. Page 15 syllabus. The antinomic nature of legal philosophy has important implications for legal validity—the criteria that determine whether a law is legitimate or enforceable. 1. Legal Validity as a Balance: o Since the law must balance competing values (justice, certainty, expediency), its validity cannot be reduced to a single, fixed principle. Instead, the validity of a law is contingent upon how well it balances these conflicting demands within the context in which it is applied. The law is valid not because it can be effective, rather IF it can be effective. Legal certainty is the standard that should assess the validity of positive law. o For example, a law may be valid even if it is not entirely just, as long as it is legally certain and serves a practical purpose for society. Alternatively, a law that is fundamentally unjust may lose its legitimacy if it contradicts the basic moral principles of justice. 2. Extreme Cases and the Limits of Legal Validity: o Radbruch suggests that in extreme cases, such as where laws are severely unjust (e.g., Nazi laws in Germany), legal validity may be questioned. In these situations, even though a law might meet formal criteria for validity (e.g., it was passed by a  legitimate authority), it can still be deemed illegitimate due to its fundamental immorality. o This is the basis of Radbruch's "Radbruch Formula": when a law is so unjust that it violates fundamental principles of justice, it ceases to be valid. In such cases, the morality of the law overrides its formal legal validity. 3. Dynamic Interpretation of Validity: o Radbruch’s antinomic view suggests that legal validity is not static. It must be interpreted and applied dynamically, taking into account the complex and evolving tensions between justice, legal certainty, and expediency. A law that is valid in one context may be seen as invalid in another, depending on the balance of values at play. Case 1 (Fuller) 1. What are the facts of the case? - Four defendants were indicted for murder and sentenced to be hanged by the Court of General Instances of the County of Stowfield. The defendants brought a petition of error before the Court. - The defendants are members of the Spelucean Society, an organisation of amateurs interested in the exploration of caves. Eary in May of 4299, they, in the company of Roger Whetmore, then also a member of the Society, entered a limestone cavern. After entering, a landslide occurred, and the entrance to the cave was blocked. - On the failure of Whetmore and the others to return home, the Secretary of the Society was notified by their families. The explores had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit, and so a rescue party was dispatched. - The rescue party was so hampered by the conditions of the area of the cave, that a huge temporary camp had to be set up, and fresh landslides occurred, during one of which ten workmen were killed. After 32 days, the men inside the cave were freed. - The men inside the cave had a radio, with which they communicated with the team outside, including doctors. The doctors gave advice which indicated that due to the expected time taken to rescue the trapped men, and their limited rations, they were unlikely to survive their imprisonment. After 8 hours of silence upon hearing this, the trapped men asked the physicians whether their chances of survival would increase if they made the decision to eat the flesh of one of the trapped members, to which the doctors responded affirmatively. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer the question. None of those attached to the rescue camp was willing to assume the role of advisor. He then asked if any minister or priest would answer their question- none would. - After the release of the prisoners, it was found that on the 23rd day of entrapment, Whetmore had been killed and eaten by his companions. - From the testimony of the survivors, it was found that Whetmore first proposed that they might eat a member of their party. It was also Whetmore who proposed the method of casting lots. The defendants were at first reluctant, but after the conversations on the radio, they finally agreed to Whetmore’s plan. Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait another week before resorting to cannibalism. The others accused him of a breach of faith and proceeded to roll the dice anyway. When Whetmore’s turn came to cast the dice, a defendant did it for him, and he was asked to declare any objections he might have to the fairness of the throw, to which he responded no. The throw went against him, so he was killed and eaten. - At the trial, after the testimony was concluded, the foreman of the jury (a lawyer by profession) inquired whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both prosecution and defence agreed. In a lengthy special verdict, the jury found the defendants guilty of murdering Whetmore. The judge sentenced them to be hanged. - After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of 6 months. The trial judge addressed a similar communication to the Chief Executive. - The writer notes that the jury and trial judge followed that course that was not only fair and wise, but the only course that was open to them under the law- if one commits murder, one should receive the relevant penalties according to the law. However, the sympathies held for the defendants may incline the audience to make allowance for the tragedy of the situation. The writer further notes that executive clemency seems admirably suited to mitigate the rigors of the law and should be applied in this case. 2. Why does Foster believe that Newgarth's law does not actually apply and what conclusion does he draw from this? Foster believes that if the Court declares that under the law the men have committed a crime, then the law is itself convicted in the tribunal of common sense. The decisions made by the law should not make us ashamed of ourselves. He does not believe that the law should find the men murderers- rather, it should find them innocent of any crime. This is because: - The enacted or positive law of the Commonwealth, including all of its statues and precedents, is inapplicable in this case, and that the case is governed instead by the law of nature. This is because our positive law is predicated on the possibility of men’s coexistence in society. When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When that condition disappears, then it is the writer’s opinion that the force of our positive law disappears with it. - Had the events taken place under different circumstances, the law would be applicable. But jurisdiction is based on a territorial basis. It is only feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth’s surface. The premise that men shall coexist in a group underlies the territorial  principle, as it does all of law. A case may be removed morally from the force of a legal order, as well as geographically. When the men made the decision to kill their fellow member, they were remote from our legal order, physically and morally. The men were not in a state of civil society, but rather a state of nature. This has the consequence that the law applicable to them is not the enacted and established law of the Commonwealth, but the law derived from those principles that were appropriate to their condition. - Governments are formed from the contract or free accord of men. If there is no government or alternative source for legal order, what higher source should we expect the defendants to find for the order they adopted for themselves? The writer believes there is no rational answer. - Relevance of necessity, self-defence etc. - Foster does not apply the law literally- he uses reason, with law as a starting point- but you need to find out if the law actually applies. (He uses the idea of a servant holding a baby, being told to “drop everything and come at once”- this should not be taken literally, in that the servant should not drop the baby- the instructions, like the law, should be interpreted intelligently. - Foster’s ideas correspond with justice. They were out of bounds of society and were therefore in a state of nature. By killing one member they ensured the survival of the rest, so it was justified. State of nature- no state of authority, no civilised situation. Foster says that the point of law is to coexist together, which in this case was not possible- they could only survive as a result of non-peaceful interventions. Foster’s conclusion is that when the reason for law ceases, the law ceases,- the law doesn’t apply to this situation, and they should therefore be acquitted. He also writes that the purpose of law is important beyond the words of the law themselves. The purpose of the law is also to deter, but there can be no deterrent effect because it was a life-or-death situation. The literal wording of the law does not specify that self- defence is an excuse for certain actions, but certain jurisprudence has agreed that it can be. The law must be interpreted intelligently- the law must be interpreted with logic, not simply word by word without accounting for reason. Deterrents cannot apply because the men could only survive if one of them was killed. Court as deterrence is not relevant (or as weighty as loss of life). The normal law does therefore not apply. His view corresponds with the value of justice, since what the explorers agreed on in the cave became the new law in that specific situation. Extra question from revision- What is Tatting’s opinion? He disagrees with Foster. He doesn’t understand why Foster has given them the permission of innocence due to them being under a “new charter of government”. He questions when this new law came into play, showing the uncertainty of it. He also says that if they cannot find these men guilty as a result of the defendants being under the law of nature, they as judges have no right to impose a ruling from a different state onto the defendants, since the judges were not (and never were) under the law of nature/appointed judges in those conditions. He also says that Foster places mor emphasis on contracts than on the law of murder. He also criticises the men for killing Whetmore, despite him withdrawing from the agreement- the law that the men drew up for themselves permitted cannibalism, denied autonomy, and accepted the killing of Whetmore despite his change of mind. He also says that if the defendants were doing the right thing, then Whetmore wouldn’t have backed out. He interprets Foster’s arguments as saying that “no statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statue is to deter”. “Assuming that we must interpret a statue in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?” He further points out that the murder statutes require “wilful” acts- which in this case, apply. In General, this guy is really conflicted- he says it’s a shame for the defendants to be put to death when ten noble men died to rescue them- but he also finds flaws in Foster’s arguments. 3. According to Keen, this is a simple case from a legal point of view. Why? - Under our system of government, it is not for us to decide- it is for the Chief Executive. - He would pardon the men, since they have already suffered enough. - The question of “right”/”wrong”/”moral”/”immoral” actions is irrelevant to Keen. - Keen believes that the sole question at hand is whether the defendants did, within the meaning of N.C.S.A. §12-A, wilfully take the life of Whetmore- this is according to the language of the statue, which says that “whoever shall willfully take the life of another shall be punished by death”. He argues that they didn’t take it willfully. The legal rules are clear in that they say that the taking of a life should be responded to with state- based punishment. Though he believes that the men are innocent, he believes that even if a law is unjust, it must be followed, and so the men must be found guilty. He believes that his personal opinion is not relevant. Aligns more with legal certainty, saying that judges should interpret less and apply more the law. - Based on legal certainty- we must be faithful to written law. Upholds a strict separation between the law and morality. He found the Spelucean case unfortunate, but as a judge, he felt bound by the law to accuse them of murder. 4. According to Handy, what does good government mean? And what does it entail for the task of the judge? Good government, to Handy, involves the conduct of elections, the appointment of public officials, and the term during which an office is held. All government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments, and they should model themselves after the “good administrator”, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result. This permits efficiency and common sense. Handy names 4 ways in which an accused can escape punishment: The judge determines there has been no committal of a crime, or there is a decision by the prosecutor not to ask for an indictment, or an acquittal by the jury, or a pardon or commutation of sentence by the executive… Handy believes that law is there to deal with human realities, and it is the judge who must be in touch with individuals and their situations. He believes that the men should be acquitted. He has a pragmatic (common sense) view, saying that his judgement should align with what the people want. Judge Handy’s opinion aligns with expediency, because he is considering what aligns most with society- he is a bit populist in his approach. 5. What attitude do Foster, Keen and Handy take towards the written law? What arguments do they have for this? (Must the judges be faithful to the law or not? If so, why and in what sense? If not, why not and what is the alternative?) They are all somewhat sceptical of the blanket application of law without the use of proper judgements of those who are applying it. They seem to agree, using different reasonings, that the defendants should be found innocent, citing reasons such as necessity, the wording of the law etc, and what the common man would find appropriate in terms of a decision. The judges should be faithful to the law as far as allows for making the right decision- but the law is just one man’s way of dictating the decisions of another man- and the autonomy of those in the decision making process, with access to the relevant facts of the specific case, should not be underestimated or undermined in favour of written law which may not be appropriately applicable. See the end of each paragraph for the questions above. Foster: loyalty to the law is required, but it must be intelligent. Innocent from the viewpoint of natural law Keen: Being faithful to the law is important, and morality viewpoint must be ignored- legal positivist view. Handy: The law is a tool to achieve the right results – the only way to achieve the flexibility of the law, and the will of the people. 6. How does Radbruch’s idea of the three core values of law relate to the judges in Fuller’s fictitious case? Justice: the idea of fairness of the decision appears to be paramount in this case- what is truly fair? By handing down a sentence using equality as a justification may displace the role of justice, since it does not account for the facts of the case. Legal certainty: It could be argued that by judging on a case-by-case basis, there is less legal certainty. However, it seems that the general consensus of an objective audience would likely come to the same conclusion, meaning that though a judgement that is “by the books” is in one way predictable, the alternative judgement is equally predictable since it is based on a general societal moral consensus- making this equally, if not perhaps more fundamentally certain, since it is based on inherent common sense. Expediency/purposiveness: This aims to benefit/serve common interests. I would say that this is also crucial in the case (all points are, really), since it addresses whether the judgement would serve the general public. I would say that since these men have already suffered greatly, and the decision they made was both reluctant and fair under their circumstances, the expediency of a sentence now is based more on a legal formality rather than with the interests of the public at heart. See above. Old exam question Please read the following excerpts from an article from The Guardian of 22 February 2023 and answer the question below. ‘Shamima Begum, who left Britain as a schoolgirl to join Islamic State (IS), has lost an appeal against the decision to remove her British citizenship. Describing it as a case of “great concern and difficulty”, the special immigration appeals commission (Siac) ruled that although there was “credible suspicion” that Begum was trafficked for sexual exploitation, the decision was ultimately one for the home secretary. Begum was 15 when in 2015 she left her home in east London with two schoolfriends to travel to Syria. In February 2019, the then home secretary, Sajid Javid, stripped her of her British citizenship after she was discovered in a refugee camp in north-east Syria. Mr Justice Jay, who wrote the judgment, published on Wednesday, on behalf of the Siac panel, said that although there was credible suspicion that Begum “was recruited, transferred and then harboured for the purpose of sexual exploitation”, that was “insufficient” for the commission to deem the home secretary’s decision unlawful. He said it was for those advising the home secretary to consider and assess whether Begum’s travel was voluntary. He wrote: “It is for the secretary of state to decide what is in the public interest, and how much weight to give to certain factors, subject always to this commission intervening on ordinary administrative law principles. This secretary of state, speaking through Sir James [Eadie KC], maintains that national security is a weighty factor and that it would take a very strong countervailing case to outweigh it. “Reasonable people will profoundly disagree with the secretary of state, but that raises wider societal and political questions which it is not the role of this commission to address.”’ From the perspective of Radbruch’s theory of the three values of the law (i.e. the three components of the concept of law) and Fuller’s Case of the Speluncean Explorers, please argue to which value (please choose one) and to which judge (please choose one) the argumentation of Mr Justice Jay comes closest. (15 points) His opinion seems similar to that of Keen, which says that being faithful to the law is most important, and the adherence to law should take priority over personal opinions and morals- though it does appear to mention the importance of intelligent decision making, I would say that his statement aligns with legal certainty. His quote prioritises the importance of following the law, making sure that it is positive, predictable, clear, certain etc, and this should take priority over other principles of justice and expediency. Facts of the case are not relevant to national security or the decision making. He follows and applies the literal meaning of the word of the law. The decision is one for the home secretary, and even though people may disagree with that decision, it is not a debate that should be addressed by this judgement. 1. Explain what legal certainty is. Corresponds with positive, laid down law. It is important that it is positive for consistency, foreseeability, enforceability, accessibility, to achieve order and peace etc. Demands of the judge that the law is interpreted according to the letter of the law, without input of moral or personal standpoints. Strict separation between law and morality 2. Name the judge relevant (Keen), and what their standpoint was. He said that the people suffered enough, but as a judge, they are guilty of murder, because that is what the law says, which takes precedence. 3. Apply these to the case. Use quotes in the text (you can do this in the exam!)- reasonable people will disagree, but it is not the task of the commission to address it- they must simply apply the law. Week 2 Notes on reading material, Jurisprudence: Themes and concepts, pages 235-237 Utilitarianism approach to justice: - Seeks to maximise average welfare in a society - Bentham and Stuart Mill were big advocates for this approach - Goal of increasing overall utility as being to achieve “the greatest happiness of the greatest number” - It is a consequentialist theory- it tests for justice by reference to consequences - Act utilitarianism: Considers whether any proposed action will result in increasing the average welfare. Essentially, we are only concerned with the justice (the utility-maximising consequences of the act). - Rule utilitarianism: Asks what rule is best instituted to increase universal welfare. In assessing the outcomes of putting the proposed act, or rule, into effect that the morally best or just thing to do becomes clear. Essentially, we are concerned with the consequences- or justice- of instituting a rule that would authorise behaviour. - Example: Torturing a detainee to prevent mass harm may seem justified under utilitarianism if it minimises aggregate harm, though it raises concerns about reliability, morality, and the rights of the individual. - In either act or rule utilitarianism, we must add up the pros and cons of the consequences of allowing or not allowing such an act or instituting the rule. We assess the possible harms and benefits and then weigh them to determine what act or rule would maximise overall welfare. - Concerns with utilitarian approaches: utilitarian calculations about claimed increases in aggregate welfare are never to be entered into detainees’ rights. Also, the measurement of utility is hard to assess- assessing pain and pleasure and whether it has increased or decreased is subjective. Kant objected heavily to utilitarianism- dignity, he argued, is not something on which a price can put and thus measured and compared against other values. The difficulty of reducing a plurality of values to one single measure- the problem of the commensurability of values- therefore poses an important challenge to utilitarian thinking. A second concern with utilitarian thinking is what the consequences of instituting a particular rule are going to be. Even if we were to assume that it is possible to compare competing values by weighing them on scales of pleasure and pain, there may conflicting ways of assessing which of the consequences matters most in the process of weighing. As in Hobbes’s state of nature, there would be no property, only possessions, and even those would be limited to what people happened to be holding on to. Predictability: Accurately predicting consequences is challenging, and interpretations of welfare-maximising outcomes can vary. Libertarianism approach to justice: - Focus: Individual rights and minimal state interference.  - Emphasis: Protecting inalienable rights such as liberty, property, and dignity over collective welfare. - Criticism of utilitarianism: Justice cannot sacrifice individual rights for aggregate welfare gains, as this undermines principles like the presumption of innocence and protections against torture or property rights violations. - Example: A libertarian might argue that property rights should not be violated even to meet the basic needs of others, as doing so undermines justice and security for all. Key Differences - Foundation: Utilitarianism prioritises collective welfare, while libertarianism upholds individual rights. - Methodology: Utilitarianism uses outcome-based calculations; libertarianism relies on principles and moral absolutes. - Critiques: Utilitarianism struggles with measurement and predictability; libertarianism is criticised for potentially neglecting broader societal needs. Notes from reading materials, Immanuel Kant - Right, Freedom, and Coercion General Context Kant (1724–1804): Major figure in social contract tradition, seen as both the culmination and possible end of social contract thinking. Kant's legal philosophy bridges natural law rationalism and legal positivism. Influenced later thinkers, including John Rawls' A Theory of Justice (1971). Central concept: Reason, which underpins Kant's ideas of law, freedom, and morality. Kant’s Concept of Reason 1. Transcendental Reason: o Not empirical but independent of experience (pure reason). o Guides thinking via principles and a priori reasoning. 2. Two Jurisdictions of Reason: o Speculative/Theoretical Reason: Focuses on "What is the case?" o Practical Reason: Focuses on "What ought to be the case?" Relevant to morality and law. Freedom and Autonomy 1. Innate Freedom: o Capacity to act without being determined by external causes. o Involves freedom of choice independent of external forces or personal inclinations. 2. Categorical Imperative (Moral Law): o 1st Formula: Act only on maxims you can will to become universal laws.  o 2nd Formula: Treat humanity as an end in itself, never merely as a means. o Basis for the concept of human dignity, which is incommensurable and foundational to the person. 3. Autonomy: o Freedom as independence from others’ choices, consistent with universal law. o Autonomy is the ultimate value and the ground for human dignity. Kant’s Concept of Right (Recht) 1. Definition of Right: o Philosophical/metaphysical (not empirical). o Grounded in reason and innate freedom. 2. Three Features of Right: o External Action: Concerned only with interpersonal actions, excluding self-directed duties. o Objectivity: Focuses on external conformity with law, not inner motivations. o Formal Nature: Content of the choice is irrelevant for determining legality; what matters is the coordination of autonomous choices. 3. Universal Principle of Right: o An action is right if it can coexist with everyone’s freedom under universal law. Key Implications Practical Reason in Law: o Distinction between morality and lawmaking. o Law provides a framework to enable autonomy. Formalism in Law: o Protects freedom of religion, thought, and personal autonomy. o Universal norms must respect individual autonomy. Philosophy lecture 2 The individual and the collective Two traditions within (social) ethics: - Utilitarianism: Bentham and Mill - Deontology: Kant Jeremy Bentham Under utilitarianism, using the Spelucean case, it is better to kill and eat one, than to let five die. Under this theory, there is a rational calculation which decides on a possible outcome. Another example of this thinking is the trolley scenario, and deciding morally who is worth saving etc. This thinking originates with Jeremy Bentham: - Pleasure and pain are our ‘sovereign masters’. We seek pleasure (utility) and avoid pain (costs) - The highest principle of morality: maximise utility. Utility then stands for the overall balance of pleasure and pain- it should be positive, in that there should be more pleasure than pain. - The consequences matter - If a utilitarian wants to answer the question of whether an action is moral, they will consider the consequences of the action, and where the consequences sit on the scale of maximising utility. - Government should aim at ‘the greatest happiness of the greatest number’. (This is a rational calculation, the overall majority should benefit- even if it’s just 51%). - Law is a system of incentives that should encourage people to act efficiently and profitably. In the case of the Spelucean explorers, Handy with expediency comes the closest to this, because he agrees with the opinion polls of the general public, which were on the side of acquitting the explorers. - Law and economics. There is a school in legal theory that uses these kinds of insights to approach many legal problems. They say law is not a real science, and we should look to economics to understand and calculate (precisely) what the greatest happiness would be when deciding on an outcome. Criticisms of Bentham’s theory - No respect for human rights. He actually admits this, by saying that human rights are “nonsense upon stilts”. No respect for individuals as ends in themselves No respect for individuals as persons- only as experiencers of pleasure and pain - A common currency for all value is untenable Justice is not a matter of calculation. All types of moral questions can be solved through his rational calculation, but this is quite prescriptive. No proper treatment of justice without tackling the question of distribution. Other philosophers argue that moral problems cannot be solved through calculation- not everything has a price. (cf. Radbruch says that justice is equality, and its not about absolute, but relative equality, and fair distribution. Before you distribute, you should ask how to value different things, make a hierarchy of values, and you are beyond calculation and Bentham) This point is about justice. Bentham would say that justice is a matter of calculation (greatest benefit for greatest number). But others would say that justice is about a fair distribution, and before you can distribute, one of the questions you should ask is “among whom are we distributing?”- evaluative question, not something you can solve in terms of calculation, which disturbs Bentham’s principles. John Stuart Mill - Utilitarian, but also a defender of individual freedom/liberty.  - He marries utilitarianism with liberalism. - On liberty, (1859): individual freedom makes human beings distinctive. He compares humans to sheep, monkeys (?), saying that they are not free in the way humans are. - Critical of customs (social traditions). This is because traditions, customs and religions are not an individual using their own autonomy, rather following what another person/higher power decrees. He says this goes against the essence of a human being, to adhere to the customs of others. Religion corrupts freedom. - The state must protect and actively promote individual freedoms and rights. Also a strong emancipatory role- the state must free those who are not free. - Harm-principle: infringement of individual freedom is only permitted if someone’s actions cause harm to others or are likely to cause it. The state may only curb/infringe upon my individual freedom if, and only if, I, in exercising my freedom, harm others. This is the only reason for why the state may intervene. If I as an adult only harm myself, there is no reason for why the state should intervene. The harm principle works as a dam against too much state intervention, and is there to preserve as much individual freedom as possible. - Promoting individual rights is a goal that fits the maximisation of utility. In the long run, the maximisation of rights fits the utilitarian principle, since it also maximises the overall happiness of a society as a whole. Criticisms of Mill - Rights are not valued per se, but remain dependent on ‘social progress’. - The individual wrong of infringing on someone’s rights cannot be grasped in utilitarian terms/by only referring to the overall societal balance of utility, there is something more at stake here. Emmanuel Kant: Deontology - Father of the modern concept of human dignity, often taken as the basis of human rights - Enlightenment: humans are rational beings. Their reason allows them to be free. The enlightenment era pushed people to think freely. Kant wrote a very readable text on what enlightenment is (he generally is hard to read). Only the use of our reason makes us free as human beings. - Freedom as autonomy, i.e. self-legislation. Not just doing whatever you like- then you are a slave to your own desires. You must follow your own rules, i.e. self-legislation. Freedom must be following your own laws. - Acting morally is acting out of duty – deon in Greek. The theory of duties = deontology - Reason gives us the unconditional law of morality: ‘The categorical imperative’ “Act only on that maxim (law) whereby you can at the same time will that it should become a universal law” – one should never lie, is a law that should be universalised. You should act under a law that is unconditional- Kant calls this a categorical imperative. “Act in such a way that you always treat humanity, whether in your own person (yourself) or in the person of any other, never simply (only) as a means, but always at the same time as an end”. This formulation of the categorical imperative is also known as the prohibition of dehumanisation. Dehumanisation is when you instrumentalise a human being, using them only as an instrument. You should be able to universalise your laws, and never use others or yourself only as a means, without treating individuals as human.  - The motive matters- for Kant, the consequences are irrelevant. The motive should be that you act as a free human being with reason, using reason to give yourself the law which is universal, without using other humans or yourself as just a means. (tools to achieve other goals) Universal Declaration of Human Rights (1948) – a good indicator of human dignity (“inherent dignity… of the human family”). Many constitutions address human dignity, and it is often translated into rights. The separation of powers - The state is needed, yet it is also a danger to individual rights and freedoms. The state can become especially dangerous if the power is concentrated within the state - Concentration of power often leads to abuse of power - We need to separate powers in order to restrain power and prevent abuse. The separation of powers corresponds to judge Keen in the Spelucean case, during which he refers to the time of turmoil and civil war. - Also called the distribution of powers - The reason for having powers separated is the protection of individual freedom. Only separated powers would limit concentrations – and thus arbitrary use of- power. In light of this, the state functions are separated. - Maintaining some form of separation between these three branches is necessary for the sake of free (rather than tyrannical) government. - They are not kept conceptually separate, but they have to be exercised by distinct and at least partially autonomous organs. Only by being distributed to different offices can one branch (or power) limit or control the others. - Ideally, legislation ought to be attributed to a representative assembly, the executive to government and public administration, and the judicial function to the judiciary. - The decisions on whether the law has been applied correctly and without violating individual rights cannot be left to the organs that are in charge of making or implementing the law. Therefore, only an autonomous and independent body of judges can adjudicate disputes where the government is involved. - We can identify different types of accountability in the separation of powers model. Each power has the ability to check the actions of others. or example, the legislature holds the executive accountable through oversight, such as approving budgets or questioning policies, while the judiciary reviews the legality of actions taken by both the legislature and executive. This system of checks and balances prevents any one branch from abusing power and ensures decisions are subject to scrutiny and control. - Normative order: the law establishes standards of conduct (what people, including office holders, ought to do), and provides mechanisms to hold individuals accountable when those standards are not met. - Institutional aspect: Law is tied to institutions that create, implement, and enforce it (legislations make or reform laws, executives implement them, and judiciaries adjudicate laws and resolve disputes) - Law can be coercive: It is enforceable by the state, through force if necessary (but this power is limited and authorised by established rules)  - System coherence: For accountability to function, the institutions must work together cohesively. This depends on a shared set of constitutional and legal rules that empower and regulate the activities of institutions, and coordination among them. - The separation of powers typically refers to Montesquieu (1689-1755) - Legislator- makes the law, keeps the executive under scrutiny - Executive power- executes and enforces the law. The pursuit of public policy by executive government in the implementation of the law or otherwise its maintenance within a legal framework - Judiciary- applies the law in separate cases. Impartial adjudication aimed at upholding the law, both in disputes between private persons and in matters involving private persons and public authorities. There are different variations of this- with strict separation between powers, and more often you have a system of checks and balances, where the different powers have to cooperate. Legislator vs judiciary Legislator: - General interest – the interests of us all - Beforehand – they look at the general interest before the law enters into force, and before any specific conflict arises - Abstract notion of the ‘people’ - Democracy – legislator is often seen as THE institution of a democracy/associated with democracy, because it is so closely associated with the ruling over the people (the representative people (parliament) ruling over the people) Judiciary: - Particular interests looked at by the judge of a specific case- and only the interests that are brought into the case. Lady justice then weighs these interest (the famous scales) - Afterwards – she weighs interests after the conflict occurs. The conflict needs to be solved, which is why in her other hand, she holds a sword - Concrete individuals – She deals with concrete parties/individuals in a case (not abstract) - Rule of Law/Rechtsstaat – Judiciary is more associated with the rule of law These perspectives can come into conflict. Challenge: how to balance interests of “the people” against interests of individuals? - Is democracy the rule of the majority, or a system of government that guarantees a humane life for all of its citizens? Some would say that democracy is about deciding political decisions based on a majority. Or is it more material than that, more value loaded? Is it a system of government where we want everyone to have a dignified life (e.g. including minorities)? - Debate between Hans Kelsen and Carl Schmitt on the Weimar Constitution. How is this tension usually resolved?  - Answer to the challenge: democracy under the rule of law - The judiciary (e.g. supreme court, ECtHR) ensures that legislator and executive respect the laws, especially individual human rights. - Judge must be impartial (no personal prejudices etc.) - Just must be independent (independent from the other powers- legislator and executor in particular) These last two points refer to the blindfold on the lady justice. - International human rights treaties protect individual rights. - International and European Courts balance the interests of the majority against individual rights - Case law should be applied directly within national legal orders of the Member States - ‘Normal times’: security serves the liberty of the individual. In normal times (without emergency), then security is subordinate to liberty. - Emergencies: art. 15 ECHR allows for more derogations from human rights - Distinction between absolute relative rights. Absolute rights can never be infringed, and relative rights can, under specific certain conditions, be derogated. Protecting human rights in Strasbourg Infringement of individual fundamental human rights is only permitted in special circumstances: - “Provided by law” (material- then people know whether their rights are infringed, foreseeability etc.) - “Necessary in a democratic society” (proportionality test) - “To protect the rights and freedoms of others” (“harm”, John Stuart Mill) - International and European courts are depicted as foreign interference in national affairs - Judicial intervention is portrayed as undemocratic attack on the will of the majority (why is the undemocratic judge interfering with the political process?) - Political pressure on courts shows how politicians in power would rather not have an independent judiciary (e.g. increasing the number of judges, or changing retirement years of judges) More on the rule of law: - The rule of law is central to accountability. This means that the legal system must have clearly expressed rules which are realistically achievable, should not conflict, should be predictable etc. There should be a capacity to challenge governmental actions that affect individuals’ interests, too. - Law is also argumentative- There may be several interpretations of it, and people are entitled to argue them. Being able to argue one’s case is important, particularly when one side has more power or resources available to make its (contradicting) argument. The ability to test legal and factual claims made by either party, to look at every side of every important matter raised, and not come down at once on the side of power, prejudice or apparent  certainty, therefore introduces a contestability that must co-exist alongside that of predictability. - With this in mind, the values that the rule of law can be seen to promote are legal certainty, the security of legal expectations, and safety of the citizen from arbitrary interference by governments and their agents. This can be related to the exercise of personal autonomy, since in the absence of legal certainty and protection from arbitrary interference, it is not possible to form autonomous plans for one’s life (Kant). - Thus, where the rule of law is observed, people can have reasonable certainty, in advance, concerning the rules and standards by which their conduct will be judged, and the requirements they must satisfy to give legal validity to their transactions. They can then have reasonable security in their expectations of the conduct of others, and in particular of those holding official positions under law. In this context, everyone can gain confidence that their activities will be judged in accordance with established rules and principles of law. Therefore, their personal liberty and liberty to conduct private and economic activities are subject to restraint only by virtue of legal powers clearly vested in persons acting with authority of the state, under the constitution/legislation, as interpreted by the judges in courts of law. Civil liberties in this way depend on respect for the rule of law. - Social and political trust: often seen to be indirectly enhanced through the rule of law- The security of expectations allows planning by individuals in the knowledge that other citizens and state officials will act, and be held accountable, in ways that are reasonably foreseeable according to the law, and not arbitrarily. Notes on the Rule of law and Rechtsstaat (Krygier) - In all versions, the rule of law has to do with the relationship between law and the exercise of power, particularly public power. - Rechtsstaat= literally, state of law/law-governed state. - In many European translations of the rule of law, the word “state” is included (Rechtsstaat)- yet in English this is not the case- and this is no coincidence. - Rule of Law: The concept of the state is not part of English constitutional jurisprudence. Traditionally, English sources of law came from many different areas, such as court decisions, custom, and statutes- custom being traditionally a very large influence. Customs were evidenced by other non-legislative sources, typically the judgements of courts. This was preferred to the commands of the King. The courts were associated with the King, of course, but were at such a distance that the King had minimal control over them. This has resulted in the rule of law, traditionally, to exclude the word state, since it historically had a smaller control over the law. From the common law tradition, the King was subject to a law that he had not made, indeed that had made him king. For the king, or anyone, to ignore or override that law was to act arbitrarily. Over time, law came to be viewed increasingly as the direct or indirect product of the political legislator, the sovereign. Arguably, there was no legal superior to the sovereign legislator. The conception of the rule of law gradually became more preoccupied with the character of the rules that the sovereign enacted: they should be clear, prospective, consistent etc. Individual rights are protected by the courts against the crown. - Rechtsstaat: In mainland Europe, Rechtsstaat was coined to capture a newer phenomenon, the modern state with its monopoly of force. That state was the subject of this concept, and also the legal source of law. The Rechtsstaat ruled by or through law. What was distinctive of  a Rechtsstaat was not that the state was subject to law that had other sources and independent guardians, but that it acts in a rechtlich (lawful, legal) way; “according to some nineteenth century (and early twentieth century) constructions, there is a relation of near- identity between the state and its law. within the system of rule the law is the state’s standard mode of expression, its very language, the essential medium of its activity”. That is how we recognise it as a Rechtsstaat, as distinct from any other type of state. Rechtsstaat operates on the basis of legal rules which are not superior to the state, but derived from it. The Rechtsstaat is the basis of its own laws, and is held accountable by them. It was upon the state to bind itself. Human rights are protected by the very nature of the state/law. Rechtsstaat goes beyond the rule of law in some ways, because it includes legal norms, but often incorporates deeper normative commitments like human dignity and fundamental rights. - Arbitrary power: uncontrolled interference, or interference that is not subject to established rules, etc. We want to limit it because: a state could act in ways secret from the public that are dangerous, or technically follow the law but do so in an uncontrolled way. This could threaten the liberty of anyone subject to it, generate reasonable and enduring fear among them, deprive citizens of sources of reliable sources of expectations of, and coordination with, each other and the state. This threatens the dignity of all who find themselves mere objects of power exercisable at the whim or caprice of another. - Thin (formal) and Thick (substantive/material): These are types of rule of law. Thin limit themselves to formal properties of laws and legal institutions, which are purported to constitute the rule of law. Thin conceptions focus on the procedural and institutional aspects of law, such as clarity, consistency, and accessibility. Does not incorporate substantive moral values. Thick require substantive elements from a larger vision of a good society and polity- democratic, free-market, human rights respecting etc. to be present. Includes formal aspects of the rule of law, but also requires alignment with moral or political ideals, such as democracy, human rights, and dignity. hin Conception: Formal/Procedural Focus Core Idea: The rule of law is defined by the formal qualities of the legal system. Characteristics (based on Lon Fuller’s "Morality of Law"): o Laws must be clear, public, prospective, consistent, and stable. o They must be possible to follow and enforced in accordance with their terms. Advantages: o Easier to identify and apply across diverse legal systems. o Favoured by analytical jurists (e.g., Hart, Raz). o Suited for international and authoritarian contexts, as it avoids contentious moral debates. Criticism: o May overlook the potential abuse of power within formally correct systems. o Risks legitimising oppressive regimes that comply with procedural legality but disregard fundamental rights (e.g., Nazi Germany). Thick Conception: Substantive/Moral Focus Core Idea: The rule of law must be tied to broader ethical or political principles, such as justice, equality, democracy, or human dignity. Examples: o Dworkin’s view: The rule of law embodies a moral ideal that protects individual rights. o German Rechtsstaat post-1949: Rooted in human dignity (Article 1 of the Basic Law) and fundamental rights. Advantages: o Provides stronger safeguards against abuse of power. o Promotes values essential for a "good" society. Criticism: o May become too broad and indistinct, conflating the rule of law with an overarching moral philosophy. o Risks imposing culturally specific values on diverse legal systems (e.g., Western human rights ideals). Rechtsstaat: Evolution and Context 1. Early Conception: o Developed by German liberal theorists (e.g., Karl von Mohl) to align legal systems with normative values like constitutionalism and administrative fairness. 2. 19th-20th Century Shifts: o Bismarckian era: Focused on formal, procedural legality. o Weimar Republic: Divided between positivist formalists (e.g., Kelsen) and critics like Heller, who argued for a democratic and ethical Rechtsstaat. 3. Post-Nazi Period: o Reaction to Nazi abuses led to a "thick" conception, integrating human dignity and social welfare (e.g., sozialer Rechtsstaat). Rule of Law vs. Rechtsstaat Aspect Thin Conception (Rule of Law) Thick Conception (Rechtsstaat) Substantive values like human Focus Formal principles of law (clarity, stability). dignity, rights. Philosophical Natural law or moral/political Legal positivism (e.g., Raz, Hart). Basis philosophy. Practical Universal, minimal requirements for legal Context-specific, tied to ethical Application systems. commitments. Lacks moral content, legitimises Criticism Too broad, risks cultural imperialism. oppressive regimes. Key Debates 1. Thin vs. Thick: o Thin proponents argue that adding morality undermines the neutrality of the rule of law. o Thick proponents claim that a purely formal rule of law is insufficient to prevent tyranny or abuse. 2. Universalism vs. Contextualism: o Thin conceptions are exportable to diverse legal systems. o Thick conceptions risk being seen as imposing Western or parochial values. 3. Balancing Formality and Substantive Values: o Scholars like Selznick combine thin legality with substantive goals (e.g., dignity, equality). Critical Reflection Advantages of Thin: Flexibility, neutrality, and wider applicability. Advantages of Thick: Enhanced protection of rights and dignity. Risks: A balance must be struck to avoid the extremes of formal emptiness or overly moralistic definitions. Anatomy or Teleology This text debates whether the rule of law should be understood through its anatomy (specific institutional features) or its teleology (its purpose or point). 1. Common Law Tradition: o Historically, the common law was not focused on institutions or rules but on curbing arbitrary power. o For example, Viscount Bolingbroke viewed the rule of law as about controlling power, regardless of the form of government. o This contrasts with modern toolkits (e.g., UN or World Bank) that promote uniform institutions without reflecting on their purpose. 2. Rechtsstaat Tradition: o Early proponents, inspired by Kant, prioritised equality, autonomy, and property protection over institutional structure. o They saw the objective of the rule of law as key, not its form. o Later, formalistic, feature-driven approaches took over, focusing on positivist characteristics rather than underlying goals. 3. Teleological Perspective: o The rule of law is understood as a social achievement—law contributes to a state where power is exercised in non-arbitrary ways. o For example, under Stalin, there were many laws but little rule of law because the law failed to achieve its purpose. o This view stresses that the rule of law is not a natural or man-made entity but exists insofar as it realises specific goals. 4. Critique of Institutional Fixation: o Modern rule of law promotion often confuses means (institutions) with ends (the rule of law's purpose). o Teleology suggests starting with the ends—what the rule of law is meant to achieve—rather than presuming a universal set of institutions is necessary. 5. Law’s Limited Role: o Law alone is insufficient to achieve the rule of law's goals. o Effective power restraint often requires looking beyond the state or legal institutions. o Law is a contributor, not the sole determinant, of minimising arbitrary power and achieving a good society. 6. Implications: o Focusing on the underlying values of the rule of law may require decentering law itself. o The search for effective power control must consider non-legal mechanisms and broader societal structures. Questions Seminar week 2 Summary of Jurisprudence: Themes and concepts, Routledge, 2023 (fourth edition), Chapter 10 Justice, pp. 235-237: The text compares utilitarianism and libertarianism in the context of justice. Utilitarianism, championed by thinkers like Jeremy Bentham and John Stuart Mill, focuses on maximising average welfare by achieving "the greatest happiness of the greatest number." It is a consequentialist theory, assessing justice based on outcomes. It has two variations: Act utilitarianism evaluates the utility of individual actions. Rule utilitarianism considers the utility of rules applied broadly. The hypothetical example of torturing a detainee to prevent a bombing illustrates utilitarian reasoning, weighing harms and benefits to maximise welfare. Critics argue that this approach can neglect moral principles, such as the inalienable human right against torture, emphasised by international law (e.g., the Geneva Conventions). Critiques of utilitarianism include: 1. Measuring utility: It’s challenging to quantify pain, pleasure, or happiness, and reducing complex values like dignity or liberty to calculations can oversimplify or belittle them. 2. Non-consequentialist objections: Figures like Immanuel Kant argue that dignity has intrinsic value and cannot be compared or traded off against other metrics. The text concludes that utilitarianism, while intuitively appealing in some cases, often conflicts with moral and human rights principles. Jurisprudence: Utilitarianism and Deontology 1. What is the guiding idea of utilitarianism? Illustrate your answer by referring to the so-called ticking bomb-scenario. Also pay attention to the distinction between act and rule utilitarianism. The guiding ideas of utilitarianism are: - Argued by Bentham - Rational calculations on the morality of decisions are based on the possible outcome(s) – i.e. on consequences, making it a consequentialist theory - Pleasure and pain are our ‘sovereign masters’. We seek pleasure (utility) and avoid pain (costs) - The highest principle of morality: maximise utility. Utility then stands for the overall balance of pleasure and pain- it should be positive, in that there should be more pleasure than pain. - Government should aim at ‘the greatest happiness of the greatest number’ - About consequences, achieving greatest happiness for greatest number of people The ticking bomb scenario - Often used to illustrate utilitarian reasoning. Imagine a suspect detained on reasonable grounds for planting a bomb in a densely populated city. If the bomb detonates, it could  cause mass casualties. The suspect refuses to reveal the bomb'