Philosophy Revision Notes Week 1 PDF

Philosophy Revision Notes, Second Attempt Radbruch: The concept of law Why is there law? The three pillars of law explain why: - Justice: Refers to equality and fairness. Radbruch defines 2 types of equality: relative and absolute. Determines that people should be treated equally. Re...

Philosophy Revision Notes, Second Attempt Radbruch: The concept of law Why is there law? The three pillars of law explain why: - Justice: Refers to equality and fairness. Radbruch defines 2 types of equality: relative and absolute. Determines that people should be treated equally. Relates to justice Foster. - Legal certainty: Ensures clarity, consistency, predictability of the law. strengthens horizontal and vertical relationships. Relates to positive law and Fuller’s 8 principles of the rule of law. Determines how people should be treated equally. Relates to justice Keen. - Expediency: (to attain a certain purpose, such as promoting social welfare). Determines who is equal/unequal in society, in order to treat them equally. Relates to justice Handy. These values are antinomic: they need each other but also conflict with each other. Tensions can arise because of these goals must coexist despite often contradicting. The antinomic nature of legal philosophy has important implications for legal validity- the criteria that determine whether a law is legitimate or enforceable. They need each other: - Justice without legal certainty can become arbitrary, as people cannot rely on predictable rules. - Legal certainty without justice can uphold oppressive or unjust laws. - Expediency without justice or certainty risks undermining fairness or stability. - There is no fixed order of them, it is relative to time and place to determine their balance They collide: - A general rule (justice) might fail to account for individual circumstances (expediency). - A highly specific, case-by-case solution (expediency) might undermine predictable rules (legal certainty). Justice vs Expediency: Justice demands universal, general rules for equality. For example, everyone should be punished the same for the same crime. Expediency might require tailored solutions, such as leniency for a specific individual due to mitigating circumstances. Expediency vs Legal Certainty: Expediency seeks flexibility to address unique situations effectively. Legal certainty requires fixed, clear rules that everyone can rely on, even if they don't allow for flexibility. Justice vs Legal Certainty:  Justice may demand that an unjust law be disregarded or replaced. Legal certainty requires that the law, even if imperfect, is followed and enforceable. Legal validity: 1. Legal Validity as a Balance: Legal validity is based on how well a law balances competing values (justice, certainty, expediency) in its context. A law may be valid even if not entirely just, as long as it is legally certain and serves a practical purpose. 2. Extreme Cases and the Limits of Legal Validity: In extreme cases (e.g., Nazi laws), a law’s validity can be questioned if it contradicts fundamental moral principles of justice, even if it meets formal criteria. Radbruch's "Radbruch Formula" asserts that laws violating justice lose their validity. 3. Dynamic Interpretation of Validity: Legal validity is not static but must be interpreted dynamically, considering the evolving balance between justice, legal certainty, and expediency. A law's validity may change depending on the context and values at play. More on 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. Types of equality: Absolute equality: - Treats all individuals equally, without distinction. - Assumes that justice requires complete uniformity. - Implies a universal application of rights, resources and duties - Considered impractical and unfair Relative equality: - Essentially equity - Treats individuals fairly, relative to their differences or circumstances - Requires the recognition of these differences - Proportionate treatment - According to Radbruch, relative equality prevails, since it aligns with the practical realities of justice and fairness in society Two types of justice: Subjective justice: A virtue or quality in a human being. Cannot be fully defined on its own; it is more about a disposition or sentiment that aligns with the pursuit of objective justice (in the same way truthfulness relates to truth). Objective justice: The relations between people, rather than individual virtues. Unlike morality, which evaluates individuals, objective justice evaluates the relations between them. It is about upholding an ideal social order, not judging what is morally good. Difference between justice and equality: - Equality refers to the treatment of individuals, specifically whether they are treated the same or differently. - Justice, on the other hand, is a broader ideal of fairness. (Note- you have not written about commutative and distributive justice- didn’t bother this time) More on Expediency/purposiveness - 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) Political Influence on Law: The content and purpose of the law is shaped by the ruling political party's worldview. Values: These reflect who the content of the law aims to benefit or serve. They indicate the interests or goals that law seeks to promote within a society. 1. Individual Values: A liberal political outlook prioritises personal freedom and minimal state intervention, viewing the state as a tool to foster individual growth. Individuals are seen as the end goal of law and the state. 2. Collective Values: Social democratic perspectives focus on public order and societal well- being, emphasising collective values like morality and culture over individual freedom. 3. Work Values: Communist views prioritise work, culture, and collective goals, with law and morality subordinated to the needs of the collective, rather than the individual. According to Radbruch, the purpose of law is contested based on political outlooks, but legal certainty is always needed to ensure stability. All three values cannot be served equally. World outlooks: These describe the ultimate goals or philosophical visions of the law, which guide the lawmaker's perspective on how society should be structured or function. (Typically after deciding who they want to benefit with the law). 1. Individualistic view: The individual is central, and everything else (law, state, culture) serves to promote and protect the individual’s personality and freedom. Work and collective values are subservient to individual ones. Ultimate goal is freedom. 2. Transindividualistic view: The collective is paramount, and individuals exist to serve and sustain the collective. The ultimate goal is collective welfare. 3. Transpersonal view: Human works, art, discoveries etc. are the highest value, and the individuals and collectives both serve this cultural ideal. Ultimate goal is to have culture as the highest purpose of human existence. Aspect Values World Outlooks Reflect who the law aims to benefit or Describe the ultimate goals or philosophical Definition serve. vision of law. What the law aims to promote or protect The broader perspective on how society Focus (individual, collective, work-related). should function or be structured. A liberal political outlook prioritises Individualistic View: The individual is Individual personal freedom and minimal state central, and everything (law, state, culture) Values intervention. Individuals are seen as the serves to promote and protect the end goal of law and the state. individual’s freedom. A social democratic perspective prioritises Transindividualistic View: The collective is Collective public order and societal well-being, paramount, and individuals exist to serve Values placing collective values like morality and the collective. The goal is collective welfare. culture above individual freedom. A communist outlook prioritises work, Transpersonal View: Human works, art, Work culture, and collective goals, with law and and discoveries are valued highest, and Values morality subordinated to the collective, individuals and collectives both serve this rather than the individual. cultural ideal. More on 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. Prevention of arbitrariness: Legal certainty prevents inconsistent or arbitrary law application, ensuring fairness and predictability. Without it, individuals could not know the law’s requirements, leading to confusion and injustice. Enablement of stability and order: It provides a consistent framework, enabling citizens and institutions to plan actions and operations confidently. Legal certainty is essential for maintaining social order and trust in the legal system. Protection of rights: It safeguards individual rights by defining clear rules and reducing the risk of arbitrary violations. Citizens can understand their rights and obligations, ensuring legal protection. Key aspects of legal certainty: Clarity and precision: Laws should be clear, unambiguous, and accessible. Predictability: Legal outcomes should be foreseeable. Consistency: Laws should be applied uniformly. Stability: Laws should not change frequently, allowing long-term planning. What is law? - Law is the practice of cultural ideas of law, rather than its own entity, it is an amalgamation of human concepts put into practice. Law is a set of rules put onto people which they must abide by. Made by humans for humans, to create equality among people. - Different theories posit different answers Why is there law? Different theories, according to Radbruch’s 3 pillars Natural law theory: Emphasis on justice - Law is natural law- derived from universal principles inherent in nature - 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- like jus cogens - Relates to Hobbs’ Leviathan Legal positivism: Emphasis on legal certainty Commented [ZA1]: This one is mentioned in the course notes, make sure you understand it - Positive law – literally, codified 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. Constructivism: Emphasis on justice - A reaction to positivism – law is not just what is explicitly stated in the codes - There is more to law than the basic wording: underlying principles, interpretations, and applications are just as important - 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. Legal realism: Emphasis on expediency - Law is a tool, a political instrument. Used to shape societies - Predictable. 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 - populist - 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. 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. Summary: Here's a concise table with the key information on the theories: Theory Focus/Emphasis Key Points - Law is derived from universal principles inherent in nature.- Natural Law Human law elaborates natural law based on time and place.- Justice Theory Accessible via reason and prevails over human law (e.g., jus cogens). - Law is codified and made/enforced by authority.- Separation Legal Positivism Legal certainty between law and morality.- Focus on the literal, grammatical meaning of legal texts.- No creative judgments for legal certainty. - Reaction to positivism: law is more than written codes.- Includes underlying principles and dynamic interpretations.- Judges are Constructivism Justice creative in developing law.- Relies on unwritten principles used in practice. - Law is a political tool to shape society.- Judges decide based on future consequences and societal benefits.- Focus on efficiency Legal Realism Expediency and predictability in decisions.- Decisions prioritise societal outcomes over past rulings. - Law and politics are indistinguishable.- Radical indeterminacy: Critical Legal law doesn’t provide clear answers.- Judges protect interests of Expediency Studies those in power.- Advocates for fundamental legal reform (e.g., through critical race or Marxist theories). Hobbes: The Leviathan Context and Significance Leviathan (1651): Written during Hobbes's exile in France amidst the English Civil Wars (1642–1651). Justifies the need for a strong, unitary sovereign state. Considered foundational for modern political thought (Tuck, 1996). Themes in Leviathan The Leviathan o A fictional 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. This could lead to authoritarianism, because the state is the highest authority, answers to no one, and can abuse power as a result. o The religious sceptre of the Leviathan indicates that the state holds the highest religious authority Order, Peace, and Security 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. ▪ Constant insecurity ▪ Without a state ▪ No property, only possession ▪ Every individual is roughly equal in their capabilities and vulnerabilities (even the strongest must sleep) ▪ No collective way to improve the situation (without the Leviathan) 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. Equality, Individual, and Consent o The Social contract: Agreement where individuals consent to give up their strength and rights to a sovereign. ▪ Better to seek peace than endure chaos, even if this means sacrificing individual power  ▪ To get out of war against all requires that each individual renounce a part of their strength and agree to seek peace- this involves the Leviathan. o Sovereign (Leviathan): ▪ Represents the collective will- requires consent from citizens ▪ Holds absolute power to maintain order and enforce laws. ▪ Derives legitimacy from the covenant formed by the people. ▪ Represents everyone but requires no contractual relationship between the community and the state. Institutionalised organisation of power. ▪ Everyone has renounced their individual strength, and is obedient to the state. The state’s overwhelming power can therefore facilitate peace. There is no security from dissent. ▪ Vertical relationship between the people and the State. ▪ Leviathan regulates actions, but not beliefs, of the people ▪ Individuals are equal under the Leviathan, because they all denounce strength and receive protection- therefore there is universalism ▪ Man-made concept, so it can die (civil war)- but also god like, because of the monopoly of force and power. (“Mortal God”) ▪ Has a monopoly in making laws that apply to everyone in the territory, and monopoly of force to execute laws. ▪ Dissent risks the return to the state of nature ▪ Allows for individualism of the people, because they are safer and have autonomy 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). The Speluncean Explorers Case 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. Justice Foster - Justice 1. Legal Certainty vs. Justice: o Foster critiques the application of positive law (enacted or statutory law) to the case, suggesting it is inapplicable given the extraordinary circumstances. He posits that when men are in a situation where coexistence in society is no longer possible (e.g., the explorers in the cave), the force of positive law disappears. o The explorers' actions should not be judged by the letter of the law, but rather through moral reasoning, as they were in a state of nature rather than under the jurisdiction of civil society. o According to Foster, the purpose of law (justice) is to enable human coexistence. When such coexistence becomes impossible, the purpose of the law is nullified. Thus, the law ceases to apply. 2. State of Nature vs. State of Civil Society: o Foster argues that the explorers were removed from civil society both geographically and morally (in a state of nature). The territorial principle of law, which requires people to live together under a shared legal order, no longer applied. o Jurisdiction: Since the explorers were isolated, their legal order should have been derived from the law of nature (morality and necessity), not from the established legal framework of the Commonwealth. o Moral Argument: The explorers killed a fellow member to ensure their survival, which they deemed necessary under their circumstances. Foster believes that in such extreme cases, law must be interpreted with reason, not just literal application. 3. Interpretation of the Law: o Foster does not apply the law literally; instead, he advocates for interpretation based on reason and moral principles. He compares it to the example of a servant being told to drop everything to come at once: the instruction should not be followed literally if it means abandoning a child in need (a life-or-death situation). Similarly, the law should be interpreted to account for necessity, especially in extreme circumstances. o Self-defence and the necessity defense are critical in this context, as the explorers were in a life-or-death situation. The deterrent effect of law becomes irrelevant when survival is the only priority. 4. Justice vs. Expediency: o Foster argues that justice requires acquittal, as the explorers’ actions, while unlawful under normal circumstances, were necessary for their survival. The purpose of law is to foster peaceful coexistence, and in this case, the explorers were in a situation where such coexistence was impossible without extreme measures. o Purpose of Law: Law’s primary function is not just deterrence or retribution, but the protection of life and enabling societal coexistence. When the context of life itself is threatened, such as in the cave, the normal law cannot apply. Relating Foster’s Argument to Radbruch’s Pillars: Justice: Foster’s argument strongly aligns with Radbruch's pillar of justice. Radbruch’s concept of justice focuses on moral and fundamental principles, which is the approach Foster advocates for when assessing the explorers' actions. Foster believes that the law’s literal interpretation does not serve justice in this situation, and instead, the law should be interpreted based on moral principles that take into account the extreme circumstances faced by the explorers. Legal Certainty: Foster questions the applicability of legal certainty when the condition of coexistence (which underpins legal certainty in civil society) no longer exists. The explorers were beyond the reach of normal legal frameworks, so legal certainty cannot be applied in the same way. Expediency: Foster dismisses the need for expediency in this case as the ultimate expedient action was the survival of the explorers. He argues that a rigid application of law, particularly as a deterrent, fails to account for the urgent necessity that dictated the explorers' decision to kill. Justice Keen – Legal Certainty 1. Keen’s Argument: o Keen believes the Chief Executive should decide the fate of the men, but as a judge, his role is to apply the law, not make moral decisions. o The key question for Keen is whether the men wilfully took the life of Whetmore, as defined by the statute, regardless of moral considerations. o Keen maintains that even if the law seems unjust, it must be followed. The defendants must be found guilty because the law clearly states that taking a life results in punishment by death. o He upholds the value of legal certainty, asserting that judges must apply the law strictly and avoid personal interpretations or moral judgement. 2. Relation to Radbruch’s Pillars: o Legal Certainty: Keen strongly aligns with Radbruch's pillar of legal certainty, emphasising the need to follow the written law, even when it might seem unjust. o Justice: While Keen separates law from morality, his view might clash with Radbruch's emphasis on justice when the law itself seems unjust. o Expediency: Keen rejects the idea that the law should be applied based on the specific circumstances or expediency; instead, he follows the law strictly, regardless of its consequences. Justice Handy – Expediency 1. Handy’s Argument: o Good Government: For Handy, effective government involves applying procedures in a flexible, context-sensitive way, focusing on efficiency and common sense. o Judges, like government officials, should adapt their methods to best serve the case at hand, aligning law with practical outcomes rather than rigid forms. o Handy believes the law must reflect human realities, meaning the judge must consider the individual circumstances. o In the Speluncean case, Handy would acquit the men, arguing that his decision should reflect what the people deem reasonable, aligning with public sentiment. o Handy identifies four ways an accused could escape punishment: the judge finds no crime, the prosecutor decides not to indict, the jury acquits, or the executive grants a pardon. o T 2. Relation to Radbruch’s Pillars: o Expediency: Handy's approach aligns most closely with expediency in Radbruch's pillars, focusing on outcomes that are pragmatic and sensitive to the needs of society. o Justice: While Handy considers human realities, his focus on common sense may not always uphold justice if it conflicts with the established law. o Legal Certainty: Handy’s pragmatism moves away from legal certainty, as he prioritises practical outcomes over the strict application of law.