Jurisprudence Notes PDF

Muhammad Tharwan Jurisprudentia Husna Anith Week 2 – Part 1 Classical Natural Laws – Romans, Greeks, the works. - One of the appropriate ways of approaching natural laws is to begin with the doctrine of lex injusta non...

Muhammad Tharwan Jurisprudentia Husna Anith Week 2 – Part 1 Classical Natural Laws – Romans, Greeks, the works. - One of the appropriate ways of approaching natural laws is to begin with the doctrine of lex injusta non est lex, an unjust law is not a law. It is an important way to put together what natural law is all about, in the context of learning the subject of Jurisprudence. But we have to examine that natural law actually goes beyond just the law. - Forms of the law, legislative laws, formed by courts of law, is subject to another higher form of the law, have to conform, in order to determine whether or not judicial decisions or statutes fit the demands of natural law. They do not possess the quality of being a law if they do not achieve the standard set forth by the natural law. - Natural law has been likened to what is known as normative jurisprudence, defined in the dictionary as to encompass what is norm, ordinary man-made laws, could include judicial decisions, statutes, and should be subject to the higher standards of natural law. The provision or means given by the standards of natural law is fundamental to natural law in terms of determining the statutes/judicial decision is fit or consistent with the standards of natural law. Man-made laws must conform to it. - At the core of natural law, it says that only good law is legitimate, for law to claim legitimacy, with legitimacy bringing authority to be obeyed, the law has to be evaluated, whether it is good or bad? It is a moral demand that law has to be good. - How do we determine this? Why is it necessary for laws to be good? (fucking indefinite sial) - Imperative to evaluate laws, what is the norm to evaluate the law, ie natural law, why is the only acceptable standard that should be taken to evaluate laws. Part 2 - The idea behind normative jurisprudence is that only good law is valid and legitimate, the idea that natural law it is not enough for law to fulfil its characteristic as a legal norm. - It needs to fulfil certain criteria, before commanding acceptance and obedience of the law. - Natural law should be the standard to determine whether or not the law is good, the philosophical justification of whether the law is good or bad. - It is insufficient to just look at the justification (he actually admits that he is being redundant at this point!), we also have to see the method of how the law is implemented. - Clearly the evaluative exercise is fundamental in understanding natural law, it is a moralising exercise when we are engaged in determining whether the law is good or bad, the process is likened to making a moral judgment, the word moral is important to distinguish it from the law, a bad law is not simply bad, it is also an immoral law. - It also reflects badly on those who legislate those laws, there is a demand on these legislators/law-makers to act in a moral behaviour. The natural law is a yardstick of sorts as a standard to determine the veracity of such behaviour, whether it is moral or immoral. Muhammad Tharwan Jurisprudentia Husna Anith Part 3 - The first few slides summarizes the moralizing exercise outlined in Part 2. - Why is it so pertinent that law should be moral? Why would anyone care? - It cannot command legitimacy if it is immoral, it will have deficiency of the validity or obedience towards these laws, jurists will also open questions about the fidelity of these laws. Part 4 - There is a demand on legislators for them to make good laws to maintain the legitimacy, it will have an impact on the moral and political authority of such lawmakers. It includes lawmakers and also judges in the courts of law, but with regards to politicians, they must make sure that the laws that they pass is consistent to natural laws, their moral and political authority will be jeopardized. - We will be examining the ideas propounded the philosophers, their justifications, the methods proposed in determining and ensuring that the laws passed by the parliament or the courts of law to be adjudged as consistent to parallels drawn by natural law. - For the purpose of our course, we will be starting with classical ideas of the natural law, Greeks and Romans, Socrates Plato, Aristotle, Stoics, Cicero. All these ideas are inter- connected. - Moving on, we go to the medieval ideas, more refined by St Thomas Aquinas, slightly different approach to understanding the legitimacy. - Classical renaissance, regarding social contract theories by Hobbes, Locke, Rousseau, and David Hume. - Due to COVID constraints, the ideas proposed by Fuller will be looked at superficially and maybe will skip Finnis entirely. Note: we skipped both of them entirely lmao. NORMATIVE JURISPRUDENCE - Normative jurisprudence encapsulates, albeit in a simplistic manner that only good law is legitimate and bad law is immoral. How do we determine whether the law is good or bad? (again, I know it sounds redundant but bear with me) The answer is through the use of natural law. - We are required philosophically, to use it as a standard of measure. - In observance, we ask why as to the justification and how as pertaining to the method of how the law is implemented in determining whether a law is good or bad. - The approach used is philosophical in nature, in the simplest way is based on argument. The premises of arguments are reinforced with strong perspective and support. We therefore need to know why the natural law is the standard is used by philosophical thinkers as a compass to whether the law made is good or bad. - We start by looking at classical natural law, by Socrates. The most important figure in terms of development of ideas relating to natural would have to be by Aristotle, to get to him we need to first observe Plato, then before him and Socrates. (Prof Samad is mistaken in this matter, he said we have to see how Aristotle influenced Plato. It is the other way around.) Muhammad Tharwan Jurisprudentia Husna Anith - We will also look at the stoics, comprising of Seneca, Aurelius, Epictetus, they share a central idea concerning the Stoics school of thought. - Cicero (Roman) is a key figure in making a point to a more practical understanding of natural law in terms of what we now understand as jurisprudence. - What is philosophy? At its most reduced and simplistic approach is explained in the slides + lecture, we should be making our own insights and readings to what philosophy is. But it is important to not be distracted by the outline given from the course. - - He just reads this out aloud. - Natural makes the important claim as alleged by philosophers is that natural law is described as universal, objective, immutable, rational and TRUE law. We will be studying this from the perspective given by Greek philosophers. - The philosophical argument is therefore, law must conform to natural law, if it does not, it is a bad law. Good law is an imperative, not a suggestion, not advisory, it has to be good. If it fails to do so, it is immoral. Example, laws prohibiting procreation, bad. *cited from Iqbal’s Scroll. Part 3 - We have to keep in mind the philosophical thought and the political perspective, in relation to natural law and democracy. - Socrates, is often called the Father of Philosophy, he is attributed to the initiation of the philosophical approach or method of reasoning, this idea is not to limit it as the only one. But it is considered as one of the first methods to answer questions relating to ethical conducts, behaviours, how we are supposed to live our life. His most important contribution is the Socratic Method, through inquiry and discourse, we will determine whether certain preconceptions or presuppositions is true or false? - In relation to law, according to his sayings in Crito, there is an obligation to obey the law as a citizen, vice versa. He claims that to be a citizen of the state you have to obey the law. We then examine the portrait of Socrates drinking hemlock as punishment for allegedly the crime of subversion, despite the pleas made by his followers to escape. Socrates claimed that without following the law of the land, he is no citizen. - He then explains the concept of metaphysical reality, where a painting depicts Socrates, together with Aristotle, to be pointing his hand upwards, referring to the aforesaid concept. This reality means it is outside and beyond our physical experience or existence. In spite of his teacher’s gestures, Aristotle is shown to point his hand Muhammad Tharwan Jurisprudentia Husna Anith downwards, the reasoning is not based on the metaphysical world beyond our experience, instead it is based on our natural existence, observing and making an inductive reasoning towards the things that exist around us. Particularly, these two methods are related to our forms of reasoning. - We move on to Plato, for the purpose in relation to natural law, we will observe his theory of forms or theory of ideas belonging to an area of philosophy called as metaphysics and political ethics. His discussion on theory of forms relates to metaphysics, but when he illustrates the relationship of such forms, it falls under the classification of political ethics. Plato then uses this to explain his idea of Philosopher king, in addition to his emphasis on the importance of reason in Natural Law. - Plato’s allegory of the cave, refer my first tutor page. This is supplemented by information provided in the slide. - - Part 4 - In his book, the Republic, Plato introduces the idea of PK. The PK is that individual accorded by Plato as one who has achieved philosophical training and tutelage, and is competent as an intellectual, more rational than anyone else. He is more able to understand or approximate the true reality. This is not to say that he understands fully the existence of true reality, because such reality is present only in the transcendent metaphysical world. The PK is therefore able to think and understand concepts better than ordinary people, so Plato asserts the idea that the state has to be ruled or governed by individuals that has philosophical training, since only such individuals have the capacity to grasp the abstract concepts and true ideals of justice, equality, fairness, so on so forth. - Ordinary people would only have a simplistic understanding, whereby PK will have a higher understanding to act and govern in a just manner because of the philosophical training. Emphasis here is that, leaders need to be intelligent and be trained by philosophers. They need to exercise reason, the keyword here is in running a state, and adjudication of rights or wrongs, has to be placed in individuals possessing ability to use reason. Such ability can only be achieved through philosophical training, IT IS NOT FOR EVERYBODY. It is only for people with specific training and talent. Therefore this approach is critically considered as an elitist approach. - The PK is able to arrive at the approximate notion of justice in its higher form, as contrasted to the worldly form which the latter is unclear/muddled, tainted by bias etc. - The ruler or the king will be in a better position to execute justice since he is the one closest to the truest notion of justice. Muhammad Tharwan Jurisprudentia Husna Anith - We will now move on to Aristotle, in order to understand his approach to Natural laws, his ideas are bifurcated into Teleological Analysis and Nichomachean Ethics. These two broad ideas is used to illustrate his ideas of philosophy in relation to natural law. - Before we move on further to understand, it is important to note that the growth and development of philosophy in Ancient Greek has very much to do with the need to find an ethical grounding/reasoning, in determination of the correct moral conduct, the right or wrong way of doing something? - How do we tackle the question of how is it right or wrong to take away the property of another person? The philosophers have tried to adduce a rational answer to this question of moral conduct. Preceding the development of philosophical ideas, it may be based on the supernatural explanation, i.e. divine laws, if we do so, we will be punished by a supernatural entity or divine punishment or even karmic retributions. People follow a certain code of conduct due to them being fearful to fall victim of such divine force. They could also be rewarded supernaturally, good karma lmao. - The concern of Ancient Greek is that when matters are determined by supernatural ideas, the authority in dispensing justice might be monopolized due to the special position of these persons related to their ability in analysing or assessing these supernatural elements. This is unsatisfactory to the Ancient Greek philosophers, the reliance on supernatural guidance has resulted in irrational behaviour or way of doing things. Aristotle in particular is of the view that the nature around us can help us to discover the understanding to how we should conduct our lives. He refers to nature as a revelation that should be accessed by human beings through their mental capacity, to determine the right or wrong of his behaviours. They opined that the supernatural element is irrelevant to determine such questions of rights or wrongs. - This is where Aristotle arrived at his idea of Teleological analysis, where he concludes that, upon observation of nature, he found that everything in nature has a final end, or purpose. Things do not exist in nature without a function, they have a predetermined purpose. He says that everything has a potential, all things have a potential for a development specific to their nature. The achievement to complete/fulfil this potential is a particular boon, so in a way, Aristotle is saying that if you follow what has been predetermined by nature then it is naturally good. Part 5B Acorn Nut Analogy - Aristotle contended the analogy of the acorn to illustrate how planting an acorn will yield into an oak tree, not something else, as nature has dictated. This is good and why is it good? It belongs to the idea that it is coherent with its own nature. - What we can derive is? - When the conduct or behaviour is consistent with nature including human behaviour thoughts or decisions, – it’s good - If NOT, then it is bad. If it is contrary to the form that has been predetermined by nature, bad. - This leads to the argument of what is bad and good. Aristotle believed that things that are consistent with nature, is moral and things that are not, is immoral. Muhammad Tharwan Jurisprudentia Husna Anith - The good laws, as believed by Aristotle, are laws that are beneficial in assisting men to achieve his nature, his maximum potential. - Bad laws are those that pose a hindrance towards the natural goal of fulfilling human potential, as accorded by nature, e.g. limitations on procreation, a bad law. Part 6 - Another approach to understanding this is to understand the connection between natural law & ethics. - NL can be understood as a moral theory. What is the correct way of living? Without the guidance of supernatural orders? - We should be governing ourselves personally and socially according to the precepts of Natural Law. Natural Law provides a source of guidance on practical living in lieu of divine orders. The understanding of this is that these are rules that can be derived from the observation of nature in finding out these precepts. - Why we should be guided by Natural Law? It is what has been predetermined by nature. Laws should be consistent by the precepts of natural law that is discovered when one observes the natural course of things. - Norms (customs, morals, manners, habits) are ways of guiding our lives based on the understanding of human nature, and the human being vis-à-vis natural law. - As illustrated by the pictures of a man doing a handstand and a normal man walking, the natural way is to walk with your feet, it would be unnatural to walking on our hands where nature has determined us to walk on our feet. Prof reads this out: - - - A straightforward instance is consumption of food, nutritious food is good, is naturally good, compared to smoking, unnatural, therefore it is bad. - Aristotle determines what is good for a human to be depending upon whether it is completing or perfective of a human, and this depends on the kind of thing a human is by nature, leading to the question of what is a human by nature? - He then propounds that man’s nature is his possession of the ability to use reason, which is very central to his idea of philosophy. - According to Aristotle, it is a natural thing and it is for his own good to use reason in making decisions. Therefore it is bad due to it being natural, if one makes a decision without exercising reason. Muhammad Tharwan Jurisprudentia Husna Anith - He argues that nature can be tiered into what can be described as universal or conventional. The universal example is birds, and the conventional is with regards to the specifics, i.e. concerning the location, the specie etc. - Aristotle claims that this can be used to explain the types of justice as well. - According to him what is universal can be deduced from observations on nature. The idea that justice is universal to human beings, they have an understanding and a sense of justice wherever they are. However, with regards to the way that justice is dispensed/provided, by different societies and different circumstances would be specific to certain communities. Therefore law is specific to a society in different conditions. If you think of the law as a mechanism or instrument of implementation of justice, it deals with the specifics and this will lead to different forms of the law. Crimes and punishments, although they are different in terms of their content they still serve the same purpose of dispensing justice in situation of individuals who have breached laws and wrought harm. - The conventional law i.e. the ordinary law is lower in hierarchy compared to universal law. - The universal law is unwritten where it contains universally accepted ruled and coherent with natural law, whereby conventional laws on the other hand are time bound, specific to each society and its intricate contexts, and these contexts are different. - To Aristotle justice is either natural as in accordance with nature, in conclusion universal or; - Local and thereby conventional as applicable to a particular place. - The higher law as conceptualised by him, is unwritten, universal, eternal and immutable and in accordance with nature. Law is divided into that which is common, being in accordance with nature and in force everywhere, and that which is peculiar to each different community. - - Prof read this out and commented that the general law is observable by everybody. - In terms of legal reasoning, the value of natural law is when an advocate was pleading a cause and found the positive law was against him, Aristotle suggested that he might then appeal to the law of nature as rendering the act void. Laws that are not natural -> bad. - Application of ordinary law must be in accordance with natural law, because justice is a natural law value, hence ordinary laws must subscribe to the ideals of justice. Muhammad Tharwan Jurisprudentia Husna Anith Part 8 – The Stoics - For the purpose of this course, the Stoics emphasized highly on the primacy of reason. Man is endowed with reason by nature and therefore must live according to nature and use his reason. They state rather assertively that man must use reason in order for him to live naturally. Although the Stoics prescription is that in using reason, man must free himself from other concerns – emotional and material that may cloud his reason and make his judgement flawed. - Cicero is the key figure in Stoicism, in relation to legal and political philosophy. His most important contribution is when he relates natural law to the conventional working of the law. - “Of all these things respecting which the learned men dispute there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion but in nature. There is indeed a true law (lex), right reason, agreeing with nature and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated.” (Cicero) The laws have to be in consistent to the laws of nature. - “Nor can we be released from this law either by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and unchangeable, will bind all nations and all times; and there will be one common lord and ruler of all, even God, the framer and proposer of this law.” The message here is lawmakers must ensure that the laws they want to implement on people, must be consistent with natural law, and in right reason in agreement with nature. This is to be supplemented with articles on Cicero as provided in Spectrum. - Cicero asserted again that philosophy teaches us that by nature human beings have reason, that reason enables us to discover the principles of justice, and that justice gives us law. Therefore any valid law is rooted in nature, and any law not rooted in nature (such as a law made by a tyrant) is no law at all. This encapsulates what have been previously said by Plato, Aristotle and the Stoics of course. He says that even if the king or emperor or lawmaker may have the support of all his citizens, they must exercise reason in legislating law instead of making it at their whim, therefore be in consistence with natural law. - He further classifies law into jus natural, jus gentium (law of the nation for everyone) and jus civile (laws specific to a particular community. The second tier of Aristotle’s law is divided by Cicero into these types.