Theories of Justice PDF

#### 1. Theories of Justice Three main schools of thought: 1. 2. 3. [UTILITARIANISM] '...\[T\]he principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of t...

#### 1. Theories of Justice Three main schools of thought: 1. 2. 3. [UTILITARIANISM] '...\[T\]he principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question; or, what is the same thing in other words, to promote or to oppose that happiness. I say of every action whatsoever; and therefore not only of every action of a private individual but of every measure of government' -- Jeremy Bentham, An Introduction to the Principles of Morals and Legislation. [Consequentialism ---] Act utilitarianism Rule utilitarianism ---------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------------------------ The 'rightness' or 'wrongness' is judged by the consequences of the individual action itself The 'rightness' or 'wrongness' of an act is judged according to consequences of a rule that everyone should follow in like circumstances An action is 'right' if it conforms to a moral rule that maximises the common good Thus, does utilitarianism demand equality in the distribution of welfare? [LIBERALISM] a. b. c. i. 1. ii. 2. a. b. Liberties could include: a. b. c. d. e. f. Rawls submits that liberty takes priority as an inevitable consequence of the self-interest of the original actors. While they do not know their circumstances or predilections, they do know that certain goods will be desirable to all. However, there are some issues: 1. a. b. c. Communitarianism --- the individualistic view that obligations can only arise from consent. There are lots of other relationships we enter into that impose obligations without explicit consent. [LIBERTARIANISM (WORST)] *The state has no exaction beyond what is necessary for the performance of its minimal protective functions* The minimal state is the most that we can justify because anything more extensive would infringe on individual rights -- prioritising liberty. *["just entitlements"]* - allow people to choose how to use what they have -- patterned distributions do not allow persons to transfer holdings for the enhancement of another's position 1. 2. 3. [Seminar Reading] [Part 1 --- Utilitarianism (Monistic theory)] 1. ["The greatest happiness of the greatest number is the foundation of morals and legislation." - Jeremy Bentham (Legal Positivist), An Introduction to the Principles of Morals and Legislation (1789)] ["It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied." - John Stuart Mill, Utilitarianism (1863)] \[Intellectual and moral pleasures are superior to physical ones.\] ["The ultimate moral principle which utilitarianism teaches us is to maximize the satisfaction of preferences." - R.M. Hare, Moral Thinking (1981)] There are several core beliefs in utilitarianism: a. The right action is the one that produces the greatest happiness (or minimises pain) for the greatest number of people. Actions are judged solely based on their consequences---particularly their impact on overall well-being. Maximising net welfare. b. Utilitarianism looks only at the end results --- if the outcomes maximise happiness, the action is good, even if the means to achieve it are morally questionable. c. There is no special preference for any particular person or group---everyone's well-being is considered, regardless of who they are. In decision-making, this means we must weigh the happiness and suffering of all individuals affected by the action without bias. d. Classical utilitarianism, particularly in the works of Jeremy Bentham, is based on hedonism, which holds that pleasure is the only intrinsic good and pain is the only intrinsic bad. All other values (e.g., justice, rights) are instrumental---valuable only insofar as they contribute to overall happiness or reduce suffering. I believe that the Greatest Happiness Principle is the most important core belief of utilitarianism. It is the principle belief that guides the other core beliefs and is mainly agreed upon by classical and modern utilitarians that this is the core principle. 2. Act utilitarianism is flexible and maximises utility in every individual case, but it can be impractical and morally problematic since it might justify harmful actions to achieve greater overall happiness. Rule utilitarianism offers consistency, protects rights, and is easier to apply, but it can be too rigid and may struggle with defining the right rules or allowing for exceptions in exceptional cases. The rule merely guides the action. This may not explicitly refer to only legal rules. Strong vs Weak rule utilitarians. 3. ["The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others." (Freedom and Harm)] ["Over himself, over his own body and mind, the individual is sovereign." (Individual Liberty)] ["In the case of a conflict between individual liberty and the interests of society, it is the individual's rights that must be preserved, provided that they do not harm others." (Limitations on Authority)] ["The harm principle maintains that the actions of individuals should only be limited to prevent harm to other individuals. If an action does not harm others, it should not be restricted, even if it may offend." (Distinction between Harm and Offence)] - [The Two Thoughts on Utilitarianism] Act Utilitarianism --- a. b. Rule Utilitarianism --- a. b. c. [Responses] Mill's Harm Principle --- Mill was particularly concerned with individual rights and argued that a focus on overall happiness should not lead to oppression or unjust harm to individuals. Preference Utilitarianism --- This approach might offer more protection for individuals because respecting their preferences (like not wanting to be harmed) would become a key factor in moral decision-making. However, even in preference utilitarianism, if overriding someone's preferences leads to a better overall outcome, it might still be justified. "The principle of equal consideration of interests requires that we give equal weight to the interests of all beings affected by our actions. It follows that, when we are considering our actions, we should weigh the preferences of all those who will be affected by those actions." - Peter Singer, Practical Ethics (1979) "The best action is the one that maximizes the satisfaction of preferences, taking into account the preferences of all beings capable of suffering." - Peter Singer, The Expanding Circle (1981) "A moral theory must take into account the preferences of those whose interests are affected by a decision, thus aligning moral actions with the satisfaction of these preferences." - R.M. Hare, Moral Thinking: Its Levels, Method, and Point (1981) Thresholds of Harm --- The idea is that beyond a certain threshold, the intrinsic value of human rights outweighs any calculations of utility. "There are limits to what can be justified by the utilitarian calculus, and these limits are defined by thresholds of harm that should not be crossed, even if greater benefits may result." - Douglas Husak, The Threshold of Harm (2000) "Utilitarianism should incorporate a threshold concept, asserting that certain rights must be respected and that there are moral boundaries beyond which the utilitarian calculus cannot justly proceed." - Richard B. Brandt, A Theory of the Good and the Right (1979) Negative Utilitarianism --- Instead of focusing on maximizing happiness, we should focus on minimising suffering. This shift in focus places greater emphasis on preventing harm, which could serve as a limit on the amount of harm that utilitarians are willing to inflict on individuals. "It is not enough to maximize happiness; we must also minimize suffering. The reduction of suffering must be the foremost priority of any moral philosophy." - Karl Popper, The Open Society and Its Enemies (1945) "Negative utilitarianism places primary importance on reducing suffering, suggesting that the avoidance of pain should take precedence over the pursuit of happiness. This leads to difficult ethical dilemmas regarding the balance of lives and well-being." - Derek Parfit, Reasons and Persons (1984) 4. Utilitarians do care about how individuals are benefitted or burdened, but their focus is primarily on the overall consequences of actions for the greatest number of people. While individual experiences matter, utilitarians evaluate actions based on their overall impact on collective happiness or suffering. This focus on aggregate utility means that there can be scenarios where individual burdens may be justified if they result in a greater overall benefit to others. Such trade-offs are a central feature of utilitarian ethics, making it a pragmatic approach to moral decision-making. In the context of preference utilitarianism, figures like Peter Singer emphasise the importance of satisfying individual preferences. This approach argues that actions should be evaluated based on how well they align with the preferences of those affected, taking into account the burden or benefit to each person. This perspective reinforces the idea that individual interests should not be ignored, even when calculating overall utility. However, the potential for harm is a significant concern within utilitarianism. Critics argue that the framework may overlook the intrinsic value of individual rights and moral obligations, as it can justify sacrificing individual interests for the sake of the greater good. To address this concern, some modern utilitarians propose thresholds of harm that protect individuals from significant burdens. They contend that while collective utility is important, certain rights and protections should be upheld to prevent extreme harm to individuals. Questions: 1. [Part 2 --- Rawl's Theory of Justice (A Theory of Justice)] 1. *"The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage." p.118* Rawls introduces the concept of the original position, a hypothetical situation where individuals come together to decide the principles of justice that will govern their society. In the original position, individuals operate under a veil of ignorance, meaning they are unaware of their characteristics --- such as race, gender, class, talents, or personal goals. By stripping away this knowledge, Rawls argues that individuals will choose principles that are fair and impartial, as no one knows their position in society and thus cannot tailor principles to benefit themselves. *"First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all." p.53* a. b. i. ii. *"The difference principle is the second part of the second principle of justice... Inequalities are permissible only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society." p.78* *"The priority of liberty means that the principles of justice do not permit sacrifices of basic rights and liberties for the sake of greater social and economic advantages." p. 250* Rawls emphasises that the liberty principle has priority over the difference principle. This means that basic rights and liberties cannot be sacrificed or compromised for economic or social advantages. Equality in fundamental freedoms takes precedence over issues of wealth distribution. *"The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others." p.133* Rawls applies the maximin rule in decision-making under the veil of ignorance. This rule states that individuals should choose the option where the worst possible outcome is better than the worst possible outcome of any other option. In other words, people in the original position would prioritise securing the best possible situation for the least advantaged, as they could end up in that position themselves. *"The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals, any more than it matters, except indirectly, how one man distributes his satisfactions over time." p.26* *"Utilitarianism does not take seriously the distinction between persons." p.24* *"In justice as fairness, men agree to share one another's fate. Thus they have a strong incentive to adhere to the principles agreed upon and to live up to them, since they are accepted in advance as a fair basis for determining their rights and duties." p.6* Rawls critiques utilitarianism, which seeks the greatest happiness for the greatest number, arguing that it can justify sacrificing the rights of some individuals for the greater good. In contrast, justice as fairness prioritises individual rights and fairness, ensuring that no one is left behind or exploited for the benefit of others. 2. John Rawls' theory of *[justice as fairness]* is based on several key presuppositions aimed at creating a just society. Central to his theory is the concept of the original position, a hypothetical scenario where individuals, behind a *[veil of ignorance]*, choose principles of justice without knowing their own social status. This lack of knowledge ensures impartiality, as individuals would be motivated to select principles that do not favour any particular group. Rawls assumes that in this scenario, people would choose principles that guarantee fairness for all, particularly the least advantaged. Critics argue that this hypothetical situation is overly abstract and may not reflect real-world decision-making. They suggest that individuals might not act rationally under uncertainty or might prioritise self-interest over fairness. However, Rawls defends this thought experiment as a way to eliminate bias and ensure fairness, positing that it provides a neutral standpoint for deriving just principles. Another key assumption is that rational agents in the original position would prioritise fairness. Rawls believes that individuals would adopt the *[difference principle]*, which permits inequalities only if they benefit the least advantaged members of society. Critics, particularly libertarians like Robert Nozick, challenge this view, arguing that individuals might instead prioritise personal freedom or wealth accumulation. Despite this, Rawls contends that fairness is a reasonable choice for rational individuals uncertain about their future circumstances. Rawls also presupposes that human beings are generally cooperative and will adhere to agreed principles of justice. He views society as a cooperative venture, asserting that fairness fosters stability and a willingness to work together. Critics such as Thomas Hobbes argue that human nature is more self-interested and competitive, suggesting that individuals may not cooperate unless compelled by authority. In response, Rawls argues that his theory creates incentives for cooperation by protecting individual rights and ensuring opportunities for all. Finally, Rawls assumes that his principles of justice apply to all modern democratic societies. He believes that *[justice as fairness]* provides a universally valid framework for organising society around equal rights and fair opportunities. Critics from communitarian perspectives, such as Michael Sandel, contend that Rawls' theory is too individualistic and overlooks the importance of community values. Others question the applicability of his theory to non-democratic or hierarchical societies, where fairness may not be a primary concern. In summary, Rawls' presuppositions are justified for those who prioritise fairness in justice. However, critics argue that his assumptions are too idealistic and abstract, complicating their universal application. While his framework is suitable for liberal democracies, its broader applicability remains a topic of debate. 3. - - - While many would likely choose Rawls' principles, it\'s not certain that all would, as decisions depend on personal risk tolerance and values. 4. Successes: 1. 2. 3. Limitations 1. 2. 3. 4. [Part 3 --- Nozick's Anarchist Theories of Libertarianism and Liberalism] 1. [Liberalism:] - - - - - [Libertarianism:] - - - - - 2. *Robert Nozick; Anarchy, State, and Utopia* *"A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding."* Just Acquisition: Individuals can acquire property rights over things that were previously unowned, provided the acquisition doesn't harm others' ability to use those resources. *"A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding."* Principle of Transfer: Property can be justly transferred through voluntary exchanges such as trade or gifts. *"If past injustices have shaped present holdings in ways not in accordance with these principles, rectification is required."* Principle of Rectification: If a property was unjustly acquired or transferred, the wrongs must be rectified to restore ownership to its rightful holder. 3. I disagree with the libertarian approach that Nozick proposes. Why I vehemently disagree: 1. 2. 3. 4. 5. Why it has its merits: 1. 2. 4. His criticisms of Rawls: 1. 2. 3. Frankly speaking, people do not know what is best for themselves and will succumb to greed. In economics, the central idea is that there are limited resources and unlimited wants. They require the steady, guiding hand of the government elected by them to ensure that there is equality and fair distribution. Should a pure libertarian utopia in Nozick's eyes emerge, it will harken back to the Gilded Age of the US in which big business took advantage of the workers. Now, it was generally a boon for the American economy, but should it come at the expense of the workers? It is simply unfair for those who are less advantaged. **[Further Reading]** D. Meyerson, Understanding Jurisprudence (2007) Chapter 7 *[Utilitarianism]* Utilitarianism seeks to maximise overall welfare, advocating for the allocation of goods and resources in ways that increase societal happiness. However, it lacks an independent metric for justice in distribution; as long as total welfare is maximised, the fairness of the allocation is considered secondary. - - *[Rawls' Two Principles of Justice]* 1. - - - - 2. - - - *[The Veil of Ignorance]* Rawls' original position and veil of ignorance are pivotal to his theory. By imagining themselves behind a veil of ignorance---unaware of their own social status, abilities, or conception of the good---individuals are expected to choose principles of justice impartially. - - *[Contractarianism]* Rawls modernises social contract theory by proposing a hypothetical contract rather than an actual one, rooted in fairness rather than consent. Justice, for Rawls, stems from impartial deliberation in the original position, rather than an agreement negotiated from unequal bargaining power. - - *[Nozick's Entitlement Theory]* Nozick's libertarian approach prioritises individual liberty over equality. Justice, for him, is about respecting individuals' entitlements to holdings acquired justly, whether through acquisition, transfer, or rectification. Redistribution through taxation is viewed as a violation of these entitlements. - - - *[Wilt Chamberlain Argument]* Nozick uses the Wilt Chamberlain example to challenge patterned theories of justice. Even if a just distribution is achieved, voluntary exchanges (such as paying to watch a basketball game) will disrupt the pattern, requiring state interference to restore it. - - *[The Self-Ownership Argument]* Nozick asserts that self-ownership extends to the fruits of one's labour. Taxation for redistribution, by this logic, infringes on individuals' rights, akin to partial slavery. - - *[Critical Comparisons]* - - N. Daniels, 'Equal Liberty and Unequal Worth of Liberty' in N. Daniels (ed.), Reading Rawls: Critical Studies on Rawls\'s A Theory of Justice (1989), Chapter 11. *[Key Themes and Arguments]* 1. - - Daniels focuses on the potential tensions between these principles, particularly the extent to which Second Principle inequalities may undermine First Principle liberties. 2. - 3. - *[Critical Concepts]* 1. Daniels challenges the assumption that political equality (First Principle) can coexist with significant socioeconomic inequalities (Second Principle). Historical and contemporary evidence suggests that wealth and power often erode equal liberties, such as: - - - 2. Rawls attempts to reconcile these tensions by separating liberty itself from its worth: - - Daniels critiques this distinction as arbitrary, arguing that economic factors are not just external conditions but integral to defining liberty itself. He contends that liberty without worth is meaningless---akin to granting theoretical rights that cannot be exercised effectively. 3. Daniels emphasises self-respect as a fundamental primary good in Rawls' framework. Publicly affirmed equal liberties can enhance self-respect, but visible inequalities in the worth of liberties undermine this effect, diminishing the dignity and status of disadvantaged individuals. *[Detailed Analysis]* A. - - B. - C. - *[Implications for Rawls' Theory]* 1. - 2. - 3. - D. Lyons 'The New Indian Land Claims and Original Rights to Land' in J. Paul (ed), Reading Nozick: Essays on Anarchy, State and Utopia (1982), Chapter 18. *[Key Themes and Critiques]* 1. - - - - 2. - 3. - - 4. - *[Contribution to the Debate]* Lyons' essay provides a significant critique of Nozick's libertarianism by demonstrating the difficulties of applying abstract principles to real-world injustices. It contributes to broader discussions on the reconciliation of libertarian property theories with historical inequities, particularly in post-colonial contexts. +-----------------+-----------------+-----------------+-----------------+ | **Aspect** | **Utilitarianis | **Liberalism** | **Libertarianis | | | m** | | m** | +=================+=================+=================+=================+ | **Thinkers** | Jeremy Bentham: | John Rawls: | Robert Nozick: | | | Introduced the | Developed the | Advocated for | | | Greatest | concept of | minimal state | | | Happiness | justice as | intervention in | | | Principle, | fairness | Anarchy, State, | | | focusing on | through the | and Utopia. | | | maximising | principles of | Focused on just | | | pleasure and | liberty and | acquisition, | | | minimising | equality. | transfer, and | | | pain. | Emphasised the | rectification | | | | role of fair | of property. | | | John Stuart | equality of | | | | Mill: | opportunity and | | | | Distinguished | redistribution | | | | between higher | to benefit the | | | | (intellectual) | least | | | | and lower | advantaged. | | | | (physical) | | | | | pleasures and | | | | | supported | | | | | individual | | | | | liberty | | | | | alongside | | | | | collective | | | | | welfare. | | | +-----------------+-----------------+-----------------+-----------------+ | **Core | Greatest | Justice as | Just | | Principle** | Happiness | Fairness: Two | Entitlements: | | | Principle: The | principles: (1) | Justice depends | | | morally right | Equal basic | on respecting | | | action is the | liberties for | property rights | | | one that | all; (2) Social | acquired | | | maximises | and economic | through | | | happiness or | inequalities | legitimate | | | minimises | are justifiable | means and | | | suffering for | only if they | voluntary | | | the greatest | benefit the | agreements. | | | number of | least | Redistribution | | | people.Consider | advantaged and | and patterned | | | s | are based on | distributions | | | collective | fair | are unjust. | | | welfare over | opportunity. | | | | individual | | | | | rights. | | | +-----------------+-----------------+-----------------+-----------------+ | **Methodology** | Consequentialis | Contractarianis | Historical | | | m: | m: | Approach: | | | Outcomes | Justice | Justice is | | | determine moral | principles are | determined by | | | worth; the ends | chosen | how resources | | | justify the | hypothetically | are acquired | | | means. Includes | behind a "veil | and transferred | | | act | of ignorance" | over time. | | | utilitarianism | to ensure | Focuses on | | | (judging | impartiality.En | historical | | | individual | sures | legitimacy | | | acts) and rule | fairness in | rather than | | | utilitarianism | constructing | end-state | | | (adherence to | societal rules. | distributions. | | | rules | | | | | maximising | | | | | happiness). | | | +-----------------+-----------------+-----------------+-----------------+ | **View on | Impartiality: | Priority for | Liberty First: | | Equality** | Everyone's | Equality: | Opposes | | | well-being is | Guarantees | enforced | | | considered | equal basic | equality; | | | equally in | liberties and | prioritises | | | calculating | fair | individual | | | outcomes, but | opportunity. | freedom to hold | | | this can | Inequalities | and transfer | | | justify | are only | property as | | | inequalities if | allowed if they | they choose. | | | they increase | benefit the | Sees | | | total welfare. | worst-off | redistribution | | | | (Difference | as violating | | | | Principle). | personal | | | | | rights. | +-----------------+-----------------+-----------------+-----------------+ | **State's | Instrumental: | Active: The | Minimal: The | | Role** | State should | state | state functions | | | promote | guarantees | only as a | | | policies | equal liberties | "night | | | maximising | and promotes | watchman," | | | overall | social and | protecting | | | happiness, | economic | individuals | | | e.g., public | justice. | from theft, | | | health | Includes | fraud, and | | | initiatives or | redistributive | violence. | | | economic | policies like | | | | interventions. | progressive | Redistribution | | | Allows strong | taxation and | or intervention | | | state | welfare to | beyond this is | | | involvement if | ensure fair | unjustified. | | | it improves | opportunities. | | | | societal | | | | | well-being. | | | +-----------------+-----------------+-----------------+-----------------+ | **Justice in | Aggregate | Egalitarian: | Voluntary | | Distribution** | Welfare: | Accepts | Transactions: | | | Distribution is | inequalities | Justice stems | | | secondary; | but only if | from respecting | | | focus is on | they improve | property rights | | | achieving the | the position of | through just | | | greatest | the least | acquisition and | | | happiness.Can | advantaged.Focu | voluntary | | | justify unequal | ses | exchange.Reject | | | distributions | on fair | s | | | if they | processes | any forced | | | increase | (e.g., open | redistribution | | | overall | positions) and | of wealth or | | | utility. | outcomes | resources. | | | | benefiting | | | | | society's most | | | | | vulnerable. | | +-----------------+-----------------+-----------------+-----------------+ | **Strengths** | \- Promotes | \- Balances | \- Strong | | | practical and | liberty and | emphasis on | | | flexible | equality, | individual | | | decision-making | addressing both | autonomy and | | | based on | personal | voluntary | | | measurable | freedoms and | agreements. | | | outcomes. | structural | | | | | inequalities. | \- Minimises | | | \- Focuses on | | state | | | societal | \- Protects | interference, | | | welfare as a | individual | fostering | | | whole. | rights while | personal | | | | ensuring fair | responsibility. | | | \- Adapts to | opportunities | | | | changing | for all. | \- Protects | | | circumstances | | property | | | to improve | \- Promotes | rights, which | | | collective | social | is appealing in | | | well-being. | stability | free-market | | | | through | systems. | | | | equitable | | | | | systems. | | +-----------------+-----------------+-----------------+-----------------+ | **Weaknesses** | \- May justify | \- Highly | \- Ignores | | | sacrificing | idealistic and | systemic | | | individual | difficult to | inequalities | | | rights for | implement fully | and power | | | greater good | in real-world | imbalances. | | | (e.g., | contexts. | | | | oppression of | | \- Offers no | | | minorities). | \- May neglect | mechanisms to | | | | the role of | address | | | \- Ignores the | community and | historical | | | intrinsic value | social bonds. | injustices | | | of individual | | effectively. | | | dignity and | \- Assumes | | | | rights. | fairness in the | \- Risks | | | | veil of | extreme wealth | | | \- Risks | ignorance, | disparities and | | | "tyranny of the | which is | exploitation | | | majority." | abstract and | without state | | | | theoretical. | regulation. | +-----------------+-----------------+-----------------+-----------------+ | **Critiques of | Rawls: Rejects | Nozick: Argues | Rawls: | | or by Others** | utilitarianism | redistribution | Criticises | | | for neglecting | infringes on | Nozick for | | | the distinction | individual | prioritising | | | between | property | liberty at the | | | individuals and | rights. | expense of | | | risking | | equality and | | | oppression of | Utilitarianism: | social justice. | | | minorities. | Rawls claims it | | | | | fails to | Utilitarianism: | | | Nozick: | protect basic | Nozick rejects | | | Criticises | liberties and | its focus on | | | utilitarianism | treats | collective | | | for focusing on | individuals as | outcomes, | | | outcomes rather | means to an | viewing it as | | | than processes. | end. | intrusive on | | | | | individual | | | | | freedoms. | +-----------------+-----------------+-----------------+-----------------+ #### 2. Legal Positivism - [Hans Kelsen]\'s pure theory of law focuses on a hierarchy of norms, asserting that all law is based on a fundamental norm (Grundnorm). 1. 2. - [John Austin]\'s command theory defines law as commands from a sovereign, supported by coercion and generality. 1. 2. [H.L.A. Hart] expands on Austin\'s ideas, introducing the notion of primary and secondary rules, and emphasising the role of social conventions. 1. 2. [Thomas Hobbes] argues for the necessity of a sovereign state to maintain order, advocating for unconditional obedience to laws for civilised coexistence. 1. 2. [The distinction between analytical and normative legal positivism highlights different approaches to understanding the relationship between law and morality.] [Seminar Reading] [Introduction to Legal Positivism] [Raymond Wacks, Understanding Jurisprudence] Hart's analysis outlines five central principles of legal positivism: laws as commands, separation of law and morals, the distinct value of analysing legal concepts, law as a logical system, and the non-cognitivist stance on ethics. Positivists do not reject moral critique but see it as separate from understanding legal mechanics. While some (e.g., "hard" positivists) argue legality is independent of morality, others ("soft" positivists) believe morality may be relevant depending on legal rules. Positivism, often criticised for its narrow focus on "What is the law?" over "What is law?", is contrasted with natural law theory. *Legal positivism is generally seen as a scientific, descriptive approach, whereas natural law theory integrates moral principles.* Bentham's Legal Positivism - - Critique of Common Law - - Indeterminacy of Common Law - - Proposed Reforms - - The Role of Judges - - Challenges to Bentham's Views - Although Austin's contributions to jurisprudence have diminished over time, his work continues to guide many in understanding legal concepts. Austin's view of law is grounded in the notion of commands or imperatives, focusing primarily on human laws, which he categorises into positive laws and those not tied to legal rights. He asserts that only positive law is the proper subject of jurisprudence and stresses the importance of clarity in legal definitions. Austin's approach contrasts with Hart's linguistic analysis, as he is seen as a 'naive empiricist' who views laws as empirical realities rather than abstract concepts. He acknowledges the relationship between law and power, rejecting liberal ideas of individual freedom and natural rights. Instead, he sees law as a tool of government aimed at the common good, with civil and political liberties being by-products of effective governance rather than inherent rights. [General Approaches] Jeremy Bentham and John Austin both emphasise the separation of 'is' and 'ought' in law, but their approaches differ significantly. Bentham is a utilitarian focused on creating a comprehensive legal system reflecting legislative will, while Austin adopts a narrower perspective centred on commands and rights classification. Austin's theories are viewed as politically conservative, leading him to doubt the utility of his work, whereas Bentham actively promotes legal reform. [Definition of Law] Bentham defines law through six key elements related to sovereign power and conduct, while Austin's definition centres on law as a command imposing a duty to obey. Although both stress the sovereign's role, Austin's focus on commands limits his understanding of law compared to Bentham's broader conception. [Commands] Austin's theory defines law strictly as commands from the sovereign, excluding customary and international laws, leading to complex concepts like 'tacit commands.' In contrast, Bentham views commands as one of four expressions of the sovereign's will and recognises the importance of both punitive and permissive laws. Bentham argues that laws consist of directives and sanctions, while Austin ties legal obligations directly to the likelihood of sanctions, which has faced criticism for being overly simplistic. [Sovereignty] Definitions - - Critiques - - [Sanctions] Austin's Perspective - Bentham's Perspective - 1. Legal positivism is founded on several core theses. First, it asserts a clear separation between law and morality, emphasising that the validity of a law does not depend on its moral content. This means that laws can exist and be valid even if they are considered morally wrong. Second, legal positivism is concerned with social facts, positing that laws arise from the behaviours and practices of individuals within a society, focusing on what is enacted by legitimate authorities rather than abstract moral principles. Another key aspect is the concept of sovereignty, which highlights the role of a determinate authority that issues commands obeyed by the population. Additionally, many legal positivists, particularly those influenced by John Austin, define law as commands issued by a sovereign, supported by the threat of sanctions for non-compliance. Finally, legal positivism adopts an analytical approach to law, concentrating on the structure and language of legal systems rather than their moral or ethical implications. 2. The command theory of law, primarily associated with John Austin, posits that 1) law consists of commands issued by a sovereign authority that 2) requires obedience from subjects which becomes habitual. According to this theory, a law is characterised by certain elements, including a 3) wish or directive from the sovereign, an expression of that wish, and the possibility of a sanction for non-compliance. This means that 4) legal obligations arise from the necessity to obey commands, with sanctions serving as a means to enforce compliance. In this framework, the command is central to understanding the nature of law, as it emphasises the relationship between authority and obedience. 3. Hobbes and Austin view the function of law differently. Hobbes argues that law is essential for maintaining social order and preventing chaos. He believes individuals must relinquish certain personal freedoms to a sovereign authority, referred to as the Leviathan, in exchange for security and peace, thereby creating a social contract. In contrast, Austin sees law primarily as a system of commands issued by the sovereign. He focuses on the authority of law and the necessity of obedience, emphasising the coercive nature of legal systems and their role in regulating behaviour through the imposition of sanctions. 4. Hobbes and Austin differ significantly in their philosophical foundations. Hobbes's theories are grounded in the concept of a social contract, where individuals come together to form a powerful sovereign to avoid conflict and ensure peace. This perspective highlights the need for authority derived from collective agreement. In contrast, Austin's legal positivism centres on the command theory of law, focusing more on the structural aspects of legal systems than on human motivations or social contracts. Furthermore, their views on sovereignty vary: Hobbes perceives the sovereign as an absolute power that gains authority from the consent of the governed, while Austin sees the sovereign as a determinate authority whose commands must be obeyed, emphasising legal structure over legitimacy derived from social contracts. Lastly, the nature of law is distinct for both thinkers; Hobbes views law as a social construct born out of the need for security, while Austin regards law as a set of commands with inherent authority, independent of moral considerations. These differences illustrate their contrasting approaches to understanding law and authority. [HLA Hart] [The Concept of Law, 1961, H.L.A. Hart] Chapter 4 --- Sovereign and Subject 1. - - - - - - - - - - - - - - - - - - - - - - - 2. - - - - - - 3. - - - - - A. B. C. D. E. 4\. [The Sovereign Behind the Legislature] 1. - - 2. - - 3. - - 4. - - 5. - - 6. - - Chapter 5 --- Law as the Union of Primary and Secondary Rules 1. - - - - - - - - - - - - - - - - - - - 2. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 3. This section explores the possibility of a society functioning without formal legal institutions such as legislatures, courts, or officials, relying solely on primary rules of obligation derived from customary practices. These rules serve as social controls and must address the inherent human tendencies towards violence, theft, and deception. To maintain social order, the majority must conform to these rules, creating a structure that supports common behaviours. However, a society relying only on primary rules faces several defects: 1. 2. 3. To remedy these defects, secondary rules are introduced alongside primary rules, transforming the social structure into a legal system. These secondary rules include: - - - Together, these secondary rules address the uncertainties, rigidity, and inefficiencies of primary rules, facilitating a functional legal system. The interplay of primary and secondary rules provides a comprehensive framework for analysing legal concepts such as obligation, rights, authority, and the nature of the state. In summary, the integration of primary and secondary rules is crucial for understanding the complexities of law and its foundational elements, offering insights into the internal perspectives of legal and political theory. 1. Hart argues that law is a system of rules, which can be divided into two main categories: primary rules, which impose duties and obligations, and secondary rules, which govern the creation, modification, and enforcement of primary rules. Hart emphasises the importance of the rule of recognition, a secondary rule that provides the criteria for identifying valid legal norms within a given legal system. This rule allows for a more nuanced understanding of law that accommodates the complexities of legal systems, moving beyond the simplistic command theory espoused by Austin. Hart's approach acknowledges that law serves various social functions, including facilitating social cooperation and resolving disputes, and he argues that legal systems rely on the acceptance of rules by society rather than mere coercion. 2. Hart distinguishes between rules and principles based on their functions and how they operate within legal systems. Rules are prescriptive norms that dictate specific actions and establish clear obligations, allowing for relatively straightforward application in legal contexts. They can be either mandatory or prohibitory, providing clear guidelines for behaviour. In contrast, principles are more flexible and serve as guiding standards that may influence decision-making without dictating specific outcomes. Principles often express values or moral considerations and can be weighed against one another in cases of conflict. Hart's distinction emphasizes that while rules provide clear directions, principles allow for a more interpretive approach to legal reasoning, reflecting the complexities of moral and ethical considerations in law. 3. The 'internal point of view' is a crucial concept in Hart's theory, referring to the perspective of individuals who recognize and accept rules as binding norms within their social context. This viewpoint acknowledges that individuals not only follow rules out of fear of sanctions (an external perspective) but also because they believe in the legitimacy of those rules and consider them as standards for their conduct. The internal point of view highlights the role of social acceptance and the attitudes of individuals towards the rules in sustaining a legal system. For Hart, this perspective is relevant because it underscores the importance of the legitimacy of laws and the willingness of society to abide by them, demonstrating that law is not solely about coercion but involves a deeper social commitment to norms and rules. 4. Hart's claim that law is not essentially a coercive system is a central aspect of his critique of earlier legal positivism, particularly Austin's command theory. Hart argues that while the law may involve coercive elements, it is fundamentally about the establishment of rules that are recognized and accepted by society. He posits that a legal system operates effectively when individuals adhere to rules voluntarily, viewing them as legitimate rather than simply as commands backed by threats. This perspective is convincing in that it captures the complexity of legal systems, recognizing that law functions best in an environment of compliance rooted in social acceptance. Critics of Hart, however, may argue that the coercive aspect of law cannot be entirely discounted, as the enforcement mechanisms of legal systems ultimately rely on the threat of sanctions. Nonetheless, Hart's emphasis on the internal point of view and the social nature of law offers a compelling framework that highlights the nuanced relationship between legality, authority, and social acceptance. [Kelsen and positivistic critiques of Hart] The Pure Theory of Law (1935), Kelsen *[You cannot derive an 'ought' from an 'is'.]* 1. Normativity refers to the quality or characteristic of norms --- rules or standards that dictate how individuals ought to behave. In the context of law, normativity signifies that legal norms prescribe specific behaviours and establish obligations. Norms are considered normative when they not only describe actions but also provide reasons for actions, creating expectations about what is permissible, obligatory, or prohibited. The normativity of law implies that legal norms compel individuals to act in certain ways and that failure to comply may result in sanctions. 2. Kelsen's Pure Theory of Law posits that law should be understood as a system of norms that is distinct from morality, politics, and social customs. Key components include: 1. 2. 3. 3. Kelsen's explanation of normativity is successful in establishing a clear and systematic approach to understanding legal norms. Some strengths of his explanation include: a. b. However, criticisms of Kelsen's approach include: a. b. 4. Strengths of Hart's Concept of Law: 1. 2. Weaknesses of Hart's Concept of Law: 1. 2. [Positivism and Morals] 1. - - - - 2. 1. - 2. - 3. - 3. 1. - 2. - 4. a. - b. - +-------------+-------------+-------------+-------------+-------------+ | Legal | | | | | | Positivism | | | | | | Comparison | | | | | +=============+=============+=============+=============+=============+ | *Aspect* | *Hard Legal | *Soft Legal | *Analytical | *Normative | | | Positivism | Positivism | Legal | Legal | | | (Exclusive) | (Inclusive) | Positivism* | Positivism* | | | * | * | | | +-------------+-------------+-------------+-------------+-------------+ | *Definition | Views law | Allows for | Focuses on | Considers | | * | as separate | the | analysing | the ethical | | | from | inclusion | the nature | implication | | | morality; | of moral | of law | s | | | legal | criteria in | objectively | of legal | | | validity is | determining | , | norms, | | | determined | legal | without | evaluating | | | solely by | validity in | engaging in | law's | | | social | some cases | moral | justificati | | | facts | | judgments | on | | | | | | and its | | | | | | role in | | | | | | promoting | | | | | | social | | | | | | welfare | +-------------+-------------+-------------+-------------+-------------+ | *Key | Austin | H.L.A. Hart | Raz | | | Thinkers* | (focuses on | | (explores | | | | the law as | Inclusive: | the moral | | | | sovereign | acknowledge | authority | | | | commands) | s | of law | | | | | that social | while | | | | | practices | retaining a | | | | | and moral | foundation | | | | | considerati | in legal | | | | | ons | positivism) | | | | | can inform | | | | | | the law. | Kelsen | | | | | | (acknowledg | | | | | Analytical: | es | | | | | analyses | the | | | | | law | importance | | | | | descriptive | of | | | | | ly, | normative | | | | | with | orders and | | | | | emphasis on | the role of | | | | | legal | a | | | | | systems and | foundationa | | | | | structure. | l | | | | | | norm) | | +-------------+-------------+-------------+-------------+-------------+ | *Law & | Complete | Recognises | Emphasises | Investigate | | Morality* | separation | that | law as a | s | | | of law and | morality | system of | moral | | | morality; | may | social | justificati | | | morality | influence | rules | on | | | plays no | law's | without | within the | | | role in | content, | moral | legal | | | legal | allowing | considerati | system, | | | validity | for laws | ons; | addressing | | | | that | analyses | what law | | | | incorporate | "what law | should | | | | moral | is" rather | achieve | | | | principles | than "what | within | | | | | it should | society | | | | | be" | | +-------------+-------------+-------------+-------------+-------------+ | *Approach | Legal norms | Legal norms | Analyses | Embraces | | to Legal | derive | may derive | the source | moral | | Norms* | authority | authority | and | evaluation, | | | purely from | from both | structure | asserting | | | established | social | of legal | that legal | | | social | facts and | norms | norms | | | facts, with | moral | without | should | | | no need for | principles | invoking | promote | | | moral | when | moral | justice, | | | backing | adopted by | approval; | fairness, | | | | the legal | focuses on | or social | | | | system | social | welfare | | | | | acceptance | | +-------------+-------------+-------------+-------------+-------------+ | *Applicatio | Strictly | The law can | Law's | Normativity | | n* | applies law | integrate | validity is | incorporate | | | based on | moral | grounded in | s | | | social | values, | its | moral | | | facts, | particularl | observance | reasoning | | | without | y | and | into | | | moral | in cases | recognition | understandi | | | considerati | where moral | by society; | ng | | | ons | standards | avoids | the purpose | | | | align with | moral or | and | | | | public | ethical | functions | | | | expectation | endorsement | of law | | | | s | s | | | | | or legal | | | | | | principles | | | +-------------+-------------+-------------+-------------+-------------+ | *Strengths* | Provides | Accommodate | Offers | Connects | | | clear | s | clarity by | legal | | | separation | the social | focusing on | systems to | | | between law | reality | descriptive | social | | | and | where law | accuracy, | justice, | | | morality, | and | aiming for | aiming to | | | ensuring | morality | an unbiased | make laws | | | objectivity | often | account of | beneficial | | | in legal | intersect, | legal | and | | | analysis | creating | structures | justified | | | | flexibility | and norms | in societal | | | | within | | contexts | | | | legal | | | | | | interpretat | | | | | | ion | | | +-------------+-------------+-------------+-------------+-------------+ | *Criticisms | May | Risk of | Can be | Risk of | | * | overlook | ambiguity, | critiqued | undermining | | | ethical | as moral | as overly | objectivity | | | considerati | principles | narrow, | by | | | ons, | can vary | ignoring | conflating | | | failing to | widely and | moral and | legal | | | address the | may | social | analysis | | | law's | conflict | values that | with moral | | | impact on | with legal | often shape | perspective | | | society. | norms. | legal | s | | | | | practices | | | | Too | | | | | | narrowly | | | | | | focused on | | | | | | his four | | | | | | criteria | | | | | | for legal | | | | | | positivism. | | | | | | | | | | | | He is | | | | | | essentially | | | | | | trying to | | | | | | fit an | | | | | | elephant | | | | | | into a Mini | | | | | | Cooper. | | | | | | | | | | | | If you | | | | | | breach a | | | | | | rule, you | | | | | | get | | | | | | criticism, | | | | | | but if you | | | | | | breach a | | | | | | habit, no | | | | | | one will | | | | | | criticise | | | | | | you. | | | | +-------------+-------------+-------------+-------------+-------------+ Seminar Notes: - - - - - - a. b. c. d. #### 3. Natural Law 1. Historical Influences: - - - - - - - - - - - - - 2. - - - - - - - - 3. - - - 4. - - - - - - - - - - - - 5. - - - - 1. a. b. 2. c. - - - - - - - - - - - 6. - - Seminar Reading M. Murphy, Natural Law in Jurisprudence and Politics (CUP, 2006), Chapter 1 --- Natural law political philosophy is grounded in natural law jurisprudence, which holds that laws are valid when backed by compelling reasons for compliance. Political philosophy within this tradition seeks to define the conditions under which such law exists within society. However, a key challenge to this perspective is that some laws are accepted as valid despite lacking strong moral grounds for compliance. A notable example is the Fugitive Slave Act of 1850, which enforced the return of escaped slaves. Although morally objectionable, it was recognised, enforced, and functioned as law, despite lacking compelling moral justification. This example highlights the difficulty in asserting that only morally compelling directives constitute law. A. 1. 2. 3. 4. B. 1. - - - 2. - - - 3. - - - C. - - D. I find that the approach of Legal Positivism is most compelling. Certain laws will be put in place which may not necessarily be morally correct but are to be kept for the sake of bettering society as a whole. [Lon Fuller] A. Fuller believed that legal positivism, with its strict separation between law and morality, failed to capture the moral dimensions of lawmaking and the administration of justice. For him, a legal system is not merely a set of rules but an intentional structure that must satisfy certain moral standards to function as law. Fuller argued that the legitimacy of law depends on its adherence to procedural principles, which he called the "inner morality" of law. He contended that these principles provide an inherent standard for evaluating the validity and quality of legal systems. Unlike positivists who saw law as simply whatever rules were enforced, Fuller believed that law had to fulfil specific moral requirements to be effective, rational, and fair. B. 1. 2. 3. 4. 5. 6. 7. 8. C. Fuller argued that the moral quality of law lies in the integrity of its procedural structure rather than in any specific substantive goals, like protecting the common good or individual rights. By focusing on procedural morality, Fuller believed he was addressing the basic requirements for a legal system to operate as law, rather than prescribing particular outcomes or values. For Fuller, a functioning legal system needs to respect the procedural standards that allow individuals to understand, follow, and rely on the law. This procedural focus does not necessarily dictate moral content (e.g., protecting human rights) but rather sets out the conditions that make a legal system function as a rational order. D. [Strengths:] 1. 2. 3. [Weaknesses]: 1. 2. 3. [John Finnis] A. Finnis's approach is rooted in natural law theory but takes [a modern, secular direction, aiming to define objective moral principles that guide both law and individual action.] His theory is therefore both legal and ethical, as he argues that legal systems must align with moral principles to be legitimate, while also providing a framework for ethical decision-making through "basic goods" and "practical reasonableness." B. Finnis argues for a natural law approach because he believes [law is fundamentally linked to moral principles]. Legal positivism, which separates law from morality, fails to address the purpose of law in promoting human flourishing. For Finnis, law is not just a collection of commands but a [structure that should encourage the common good by guiding individuals towards intrinsic human values.] He contends that legal systems should not be morally neutral but should facilitate the conditions under which people can achieve these "basic goods," such as life, knowledge, and friendship. C. 1. 2. 3. 4. 5. 6. 7. These goods are considered [intrinsically valuable], meaning they are pursued for their own sake and provide foundational motivations for human actions. Finnis contends that the basic goods are equally important; however, [practical reasonableness] holds a unique role as it guides how individuals pursue the other goods. D. Practical reasonableness is central to Finnis's theory, as it governs the manner in which individuals pursue the basic goods. It represents the rational aspect of his natural law theory, guiding moral action by applying principles such as fairness, consistency, and respect for others. This concept has a dual function: 1. 2. E. From Finnis's perspective, law plays an important role in securing human participation in the basic goods. By establishing a framework that promotes justice, order, and respect for the common good, law creates the conditions under which individuals can safely pursue life, knowledge, and social relationships. Law helps to [maintain an environment in which basic goods are accessible and protected], discouraging harmful behaviours and fostering social stability. [Robert Alexy] Julian Rivers, 'Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism' - - - - - - - - - - 1. 2. 3. - 1. 2. 3. 4. 5. A. Alexy argues that [law inherently claims to be correct], in the sense that it asserts its own legitimacy and demands obedience on the basis that it's just or morally right. This "claim to correctness" means that, unlike other social norms, [legal norms imply they are morally justified or at least reasonable]. According to Alexy, the law doesn't simply present itself as power; it presents itself as something that should be respected because it is correct or right. For example, legal judgments are typically framed as "just" decisions, not merely as exercises of authority. This claim to correctness differentiates law from other social practices and signifies that law inherently involves a moral dimension. B. Alexy rejects legal positivism because he believes it [insufficiently accounts for this moral claim that law makes.] Legal positivism, particularly as advocated by scholars like H.L.A. Hart, views law as a set of rules determined by social sources, without necessarily implying any moral content. Alexy argues that this view overlooks law's claim to correctness, which suggests that law is not merely a collection of rules backed by power but a normative system that aspires to moral legitimacy. For Alexy, [a purely positivist approach fails to capture law's connection to justice and its intrinsic orientation toward moral values]. C. According to Alexy, "insiders" --- individuals who work within or adhere to the legal system, such as judges, lawyers, or citizens --- are expected to [engage with the law as something that is not only authoritative but also morally defensible]. To treat law morally means to interpret and apply it in a way that aligns with the principles of justice and correctness it claims. For example, judges may interpret ambiguous statutes in a way that reflects fundamental moral principles rather than strictly adhering to the literal meaning of words. By treating law morally, insiders uphold the idea that legal obligations are not purely coercive commands but are norms that should reflect a broader sense of justice. +-----------------+-----------------+-----------------+-----------------+ | *Natural Law* | | | | +=================+=================+=================+=================+ | *Core Idea* | *Key Concepts* | *View on Law | *Criticisms* | | | | and Morality* | | +-----------------+-----------------+-----------------+-----------------+ | *Lon Fuller* | | | | | | | | | | → Fuller | | | | | prioritises the | | | | | procedural | | | | | aspects of law, | | | | | believing that | | | | | the way laws | | | | | are made can | | | | | determine their | | | | | legitimacy. He | | | | | does not | | | | | necessarily | | | | | assert that law | | | | | must reflect | | | | | specific moral | | | | | values but that | | | | | it must be made | | | | | in accordance | | | | | with certain | | | | | procedures. | | | | +-----------------+-----------------+-----------------+-----------------+ | Procedural | Focuses on the | Fuller | Some critics | | Natural Law | process of | emphasises that | argue Fuller's | | (The "inner | lawmaking | laws must have | emphasis on | | morality of | rather than on | certain | procedural | | law") | the substantive | procedural | justice | | | moral content | characteristics | overlooks the | | | of laws. | (e.g., clarity, | moral content | | | | consistency) to | of laws. | | | | be valid. | | +-----------------+-----------------+-----------------+-----------------+ | | The law must be | The moral value | Some argue that | | | generally | of a law lies | an immoral law | | | applicable, | in the way it | can still meet | | | publicly | is made, not | procedural | | | promulgated, | necessarily in | criteria and | | | consistent, and | its content. | thus be valid | | | retroactively | | according to | | | applicable. | | Fuller. | +-----------------+-----------------+-----------------+-----------------+ | | Eight | Fuller does not | Critics point | | | principles for | insist that the | out that his | | | law to be | law must aim at | theory does not | | | legitimate: | any particular | provide a | | | generality, | moral goals, | concrete moral | | | publicity, | only that it | foundation for | | | consistency, | adheres to | laws. | | | clarity, | these | | | | possibility of | procedural | | | | compliance, | norms. | | | | constancy, | | | | | congruence, and | | | | | non-retroactivi | | | | | ty. | | | +-----------------+-----------------+-----------------+-----------------+ | | Stresses the | A law that | Some argue his | | | relationship | fails in terms | theory is | | | between the | of procedural | overly focused | | | "inner" | morality fails | on law's form | | | morality of law | as a legal | and neglects | | | (i.e., the | system, | the ethical | | | procedures and | regardless of | substance of | | | structures that | its substantive | laws. | | | make it | content. | | | | effective) and | | | | | its success in | | | | | achieving | | | | | justice. | | | +-----------------+-----------------+-----------------+-----------------+ | *John Finnis* | | | | | | | | | | → Finnis argues | | | | | that law should | | | | | reflect a moral | | | | | order aimed at | | | | | promoting human | | | | | flourishing. | | | | | His view that | | | | | law should | | | | | protect basic | | | | | human goods | | | | | gives his | | | | | natural law | | | | | theory a | | | | | strongly | | | | | normative | | | | | dimension. | | | | +-----------------+-----------------+-----------------+-----------------+ | Natural Law as | Builds on | Law is deeply | Critics argue | | Practical | Aristotelian | tied to | that Finnis' | | Reason (A list | and Thomistic | morality; it | theory may be | | of basic goods) | ideas of human | should aim to | too idealistic | | | flourishing and | protect and | and overly | | | the common | promote human | focused on a | | | good. | flourishing and | "universal" | | | | the common | notion of human | | | | good. | good. | +-----------------+-----------------+-----------------+-----------------+ | | Basic goods: | Law should | Some critics | | | Life, | promote these | suggest that | | | knowledge, | basic goods, | the list of | | | play, aesthetic | and legal norms | basic goods may | | | experience, | must reflect | be culturally | | | friendship, and | moral values | specific and | | | practical | aimed at | not universally | | | reason itself. | achieving human | applicable. | | | These are the | flourishing. | | | | fundamental | | | | | goods that | | | | | inform moral | | | | | reasoning and | | | | | lawmaking. | | | +-----------------+-----------------+-----------------+-----------------+ | | Practical | Finnis contends | Finnis' critics | | | reason: The | that law helps | question | | | ability to | guide | whether his | | | choose means | individuals | concept of | | | that lead to | towards a good | "practical | | | the fulfilment | life, one that | reason" can | | | of basic goods; | aligns with | effectively | | | the law should | reason and | guide legal | | | align with | human | decisions in | | | practical | flourishing. | complex cases. | | | reason to guide | | | | | individuals. | | | +-----------------+-----------------+-----------------+-----------------+ | | Focus on the | Finnis views | Critics argue | | | common good: | law as an | that the common | | | law is meant to | instrument for | good approach | | | facilitate both | achieving moral | could lead to | | | individual and | ends; it should | the imposition | | | societal | align with the | of one group's | | | well-being. | objective moral | moral vision | | | | order. | over others. | +-----------------+-----------------+-----------------+-----------------+ | *Robert Alexy* | | | | | | | | | | → Alexy, while | | | | | blending | | | | | natural law and | | | | | positivism, | | | | | presents a | | | | | sophisticated | | | | | theory that | | | | | emphasises the | | | | | importance of | | | | | both moral | | | | | principles and | | | | | legal rules. He | | | | | advocates for a | | | | | balance between | | | | | the two in | | | | | legal | | | | | interpretation, | | | | | making his | | | | | approach | | | | | nuanced but | | | | | complex. | | | | +-----------------+-----------------+-----------------+-----------------+ | The Dual Nature | Combines | Alexy asserts | Some critics | | of Law (Theory | aspects of both | that law is a | argue that | | of principles | natural law and | combination of | Alexy's theory | | and rules) | legal | both moral | blurs the line | | | positivism, | principles | between legal | | | suggesting that | (which are | positivism and | | | the law is | valid | natural law | | | constituted by | independently | theory. | | | both principles | of legal | | | | and rules. | enactment) and | | | | | legal rules. | | +-----------------+-----------------+-----------------+-----------------+ | | Principles: | Principles are | Some critics | | | Norms that | morally based | claim that | | | express goals, | and provide the | Alexy's dual | | | such as justice | framework | approach may | | | or equality, | within which | lead to | | | which are to be | rules operate, | confusion and | | | realised in | requiring | make it | | | specific legal | balancing of | difficult to | | | cases. | competing | apply in | | | | principles. | practice. | +-----------------+-----------------+-----------------+-----------------+ | | Rules: Concrete | Rules provide | Critics argue | | | prescriptions | clear and | that Alexy's | | | that are more | predictable | theory | | | rigid and apply | legal outcomes, | overemphasises | | | in specific | but they must | the importance | | | cases, often | be interpreted | of balancing | | | without | in line with | competing | | | reference to | higher moral | principles, | | | competing moral | principles. | which can be | | | values. | | vague. | +-----------------+-----------------+-----------------+-----------------+ | | Legal | Legal validity | Alexy's theory | | | reasoning: The | depends on both | is criticised | | | interpretation | formal | for being | | | of legal rules | adherence to | overly | | | requires | legal rules and | abstract, | | | balancing | the substantive | making it hard | | | between rules | moral value of | to apply in | | | and principles, | the principles | concrete legal | | | where | behind them. | decision-making | | | principles may | |. | | | conflict with | | | | | one another. | | | +-----------------+-----------------+-----------------+-----------------+ | | Theory of | Alexy links the | Critics argue | | | constitutional | concept of | that Alexy's | | | rights: Alexy | constitutional | approach to | | | is known for | rights with the | constitutional | | | his defence of | protection of | rights may | | | constitutional | fundamental | limit | | | rights as a | human dignity, | democratic | | | fundamental | which he sees | decision-making | | | part of a just | as inherent in | in favour of | | | legal system. | law. | judicial | | | | | interpretation. | +-----------------+-----------------+-----------------+-----------------+ #### 4. The Role of Judges and Injustice [Historical Context: Mack's Story and the Chinese Immigration Act] - - - - - [Judicial Theories on Law and Injustice] - - - - - [Austin's Legal Positivism] - - - - - - - [Responses to Extreme Injustice] - - - - - - - - - - [Practical Applications] - - - [Judicial Interpretation and Power] - - - - [Key Cases] *Mack v Attorney-General of Canada (2002)*: Challenges to discriminatory taxation failed on multiple grounds (e.g., retrospective application of the Charter, unjust enrichment, and the Radbruch formula). *R (Jackson) v Attorney-General (2006)*: Suggests limits on parliamentary supremacy in extreme constitutional crises. *Grudge Informer Cases*: Illustrate judicial navigation of morally repugnant laws during the Nazi regime. [Conclusion] - - - - - #### 5. Dworkin's Philosphy *[Philosophical Method]* - - - - - *[Coherence Theory and Legal Adjudication]* - 1. 2. 3. - - - - - *[Principles and Institutional Morality]* - - - - - *[Key Jurisprudential Theories]* 1. 2. 3. *[Dworkin's Ethical and Political Morality]* - - - - - - *[Rights Thesis]* - - - - *[Key Metaphors and Analogies]* - - - - *[Case Studies and Examples]* 1. - 2. - *[Impact and Further Reading]* - - #### 6. Sociology of Law Definition: Sociology is the scientific study of society, including patterns of social relationships, interactions, and culture, using empirical investigation and critical analysis. - - - - - - - - - - Recommended Readings: 1. 2. 3\. The Law and Social Change - - Key Theories: A. - - B. - - Recommended Readings: 1. 2. 4\. Core Sociological Theories - - - - - - - Recommended Readings: 1. a. 2. b. 5\. The Role of Law in Society - - - - - - Practical Implications: - - Recommended Readings: 1. a. 2. b. 6\. Critical Reflections - - - - - - Recommended Reading: 1. #### 7. Overview of Critical Legal Theory - - - - - **[Critiques of Legal Liberalism]** - - - - - - - **[☭ Marxism, Law, and Capitalism ☭]** 1. - - 2. - - - - - - - - - 3. - - 4. - - 5. - Marxism and Commodification of Law - - Application and Importance - - Summary of Marxist Thought through the Legal Perspective - - - **[Key Feminist Theories:]** - - - - - - - - - - - - - - - Core Questions: - - - **[Critical Race Theory (CRT)]** 1. - - 2. - 3. - - - - - 4. - - - - - - 5. - - 6. - -