Philosophy Revision Notes Week 3 PDF

Instrumentalism Definition: Instrumentalism views the law as a tool or mechanism for achieving political, economic, or social goals. Instrumentalism sees law as a means to an end, rather than an end in itself. It prioritises practical outcomes, like safety or economic gr...

Instrumentalism Definition: Instrumentalism views the law as a tool or mechanism for achieving political, economic, or social goals. Instrumentalism sees law as a means to an end, rather than an end in itself. It prioritises practical outcomes, like safety or economic growth, over abstract ideas like fairness or liberty. For example: o National security focus: Law is used as a government tool to ensure public safety and order, often prioritising collective security over individual rights. o Criticism: This approach risks reducing law to a means of control, ignoring its role in safeguarding human rights. Radbruch and Legal Expediency: According to Radbruch, law’s expediency allows society to protect itself. However, if one value (e.g., national security) is overemphasised at the expense of others (e.g., justice, equity), it leads to disproportionate or harmful outcomes. Examples: o Guantanamo Bay: ▪ Individuals detained as alleged terrorists after 9/11 without due process or judicial oversight. ▪ Invasive techniques, lack of charges, and arbitrary detentions highlight the dangers of instrumentalism prioritising security over legal protection. Criticism: Excessive reliance on instrumentalism can lead to abuses of power and undermine legal safeguards, as seen in Guantanamo Bay or emergency measures becoming permanent. Legal Protection Definition: Legal protection ensures that laws protect citizens’ fundamental rights and constrain government power. It reflects the principles of democracy and the rule of law. Purpose: o To prevent the arbitrary exercise of power by the state. o Law serves as a safeguard to ensure equity, liberty, and legal certainty for citizens. Problems of Arbitrary Power ("Rule of Men"): o Equity is sacrificed: No consistent or fair treatment of citizens. o Threats to liberty: Individual freedoms are undermined. o Lack of legal certainty: Citizens live in fear due to the unpredictability of state actions (no clarity or stability in the law). o Kantian perspective: Arbitrary state power violates the right to life and undermines trust between citizens and the state.  Examples: o Franz Kafka’s The Trial (1925): A critique of legal systems where individuals are powerless and face arbitrary, opaque processes. Key Principles of Legal Protection 1. Legality: o The government is bound by its own laws and cannot act above them. o Laws must be clear, not retroactive, and accessible to all. 2. Separation of Powers: o Power is divided between the legislative, executive, and judiciary to avoid concentration of power. 3. Human Rights: o Fundamental rights of citizens are upheld, even in emergencies. 4. Judicial Protection: o Independent, impartial judges ensure laws are fairly applied. o Access to justice is equal, regardless of race, income, or status (symbolised by Lady Justice’s blindfold). Instrumentalism vs. Legal Protection Instrumentalism Legal Protection Law is a tool to achieve political or economic Law is a safeguard against state overreach and goals. arbitrariness. Focus on expediency (e.g., national security). Focus on equity, liberty, and certainty. Risk of prioritising state interests over Ensures the state is bound by law and respects individual rights. human rights. Example: Guantanamo Bay. Example: Rule of law traditions (Rechtsstaat). Sovereignty and violence Max Weber on the monopoly of violence of the modern state theorised that the monopoly has 3 aspects: - Physical (literal violence to ensure order, e.g. police enforcing laws) - Symbolic (the state has a cultural projection, e.g. police uniforms as symbols of authority) - Governing (the social aspects of the state, e.g. the way the state wants to ensure welfare for all of its citizens/punishing crimes) What is the relationship between violence and law? Inside of legal thinking, there is already one answer. The mainstream, normal legal answer is this: - The state has the “right” to use violence under the certain, specific conditions promulgated by the law, and the law only. - State violence can be traced back to a given legal competence- in order for a state or state official to use force, they must have a legal competence that is traceable. (even police count) - Competence is constituted power- ultimately traceable back to the highest law, typically the constitution - If state officials act beyond their competences, they will be held accountable (politically and legally, depending on the type of state official) Schmitt Background: o Carl Schmitt: German legal and political theorist, influential yet dangerous thinker, affiliated with the Nazi regime. o Key Contributions: Legal theory (state of exception) and political theory, including critiques of liberal politics and agonistic democracy. State of Exception: o Normal vs. Abnormal Conditions: Schmitt critiques the conventional legal narrative that presupposes normal conditions. He questions how normal conditions arise and what happens in abnormal situations (e.g., emergencies). o Emergencies: Existential threats to the state such as war, natural disasters, terrorism, pandemics. o Sovereign Power: The sovereign decides when normal rules can be suspended in exceptional times. This power is essential for the self-preservation of the state. o Sovereign Definition: The sovereign has the power to decide on the exception— acting outside normal legal frameworks in times of emergency. Sovereign power precedes the legal order and is a form of constituent power. Sovereign Power in Exceptional Times:  o State as Political Entity: The state exists independently of the legal order and takes precedence during exceptional times to ensure its survival. o State of Exception: When emergencies arise, normal legal structures are suspended to allow the sovereign to act in the interest of state survival. o Role of the Executive: Schmitt argues that the sovereign, often the executive, has the responsibility to act in emergencies, even if this involves violating the rule of law temporarily. Risks of the State of Exception: o Authoritarianism: Schmitt's theory opens the door to authoritarian rule if unchecked. The sovereign could abuse the power to declare an emergency and suspend the law to suppress opposition. o Erosion of the Rule of Law: The ability of the sovereign to bypass legal frameworks during emergencies undermines the stability and predictability of the legal system. o Vagueness of Emergencies: The definition of emergencies can be subjective and manipulated to consolidate power. o Normalization of Exceptionalism: Frequent or indefinite states of exception could lead to a "permanent emergency" state, as seen during the Cold War. o Totalitarianism: The state’s ability to act outside the law could enable totalitarian control, bypassing democratic institutions and human rights protections. o Weakening of Democracy: Schmitt’s focus on sovereign power risks sidelining democratic governance and checks on executive power. o Lack of Accountability: The absence of oversight can lead to unaccountable decisions that erode democratic processes and the separation of powers. Impact on Democratic Governance: o Abuses of Power: Schmitt's framework allows for emergency powers that can be misused, potentially leading to the suspension of democratic rights and the establishment of authoritarian regimes. o Difficulty in Restoring Normalcy: Once parts of the law are suspended, it becomes easier to extend this suspension, making it difficult to return to normal governance. Schmitt and Modern Applications: o Bush Administration: Schmitt's theory influenced the justification of emergency powers in the U.S. post-9/11, leading to the erosion of civil liberties under the guise of national security. The Separation of Powers Need for Separation: A concentration of power within the state threatens individual rights. To prevent power abuse (and arbitrary use of the law), separation of powers is vital. Enables a free (rather than tyrannical) government. Laws can be normative: the law establishes standards of conduct and mechanisms to hold people accountable when standards are not met. Aims to regulate individual and office holders’ behaviour- is about what you should/should not do (norms!) Laws are institutional: Law is tied to institutions that create, implement and enforce it, as well as adjudicate it. Laws can be coercive: Enforceable by the state, with force if necessary (according to the rules) Laws can be systemic: Law is a current system or order, so the activities and practices of the institutions hang together in a coherent way. It is a logical, specific system, not with random rules and practices. Laws can be argumentative: There may be several interpretations, and people are entitled to argue their side, without fear of repercussion- this is especially important when the state/other powerful people are involved on one side. System coherence: For accountability to function, the institutions must coordinate together Corresponds to Judge Keen- legal certainty Montesquieu's Model: Separation into three branches: 1. Legislature: Creates laws, keeps the executive under scrutiny. (parliament or congress). This branch is typically composed of elected representatives who represent the interests of the people. Their role prevents the executive from ruling by decree and ensures that laws reflect the will of the people. 2. Executive: Executes and enforces laws. (president, prime minister, police, government officials). The executive's powers are limited by the laws passed by the legislature and by judicial oversight. This prevents the executive from becoming a dictatorship and acting arbitrarily. 3. Judiciary: Applies the law in individual cases. Impartial adjudication aimed at upholding the law in private and public matters. The judiciary can check the power of both the legislature and the executive by declaring laws or executive actions unconstitutional or illegal, thus preventing abuses of power. Legislator vs Judiciary: o Legislator: Works for the general interest, pre-emptively (before conflicts arise), represents abstract "people." o Judiciary: Deals with specific conflicts after they arise, weighing concrete interests and applying the rule of law.  o Conflict: Balancing the interests of the collective (democracy) versus individual rights (rule of law) is a challenge. o Resolution: the judiciary ensures that the legislator and executive respect the laws. Judges remain impartial, independent (particularly from other powers) Key Debate: Democracy as majority rule vs. a system ensuring dignified life for all (including minorities). Democracy Under the Rule of Law Hans Kelsen vs. Carl Schmitt: Discusses whether democracy should prioritise the majority’s will or protect human dignity for all citizens. Judiciary's Role: Judges must be impartial and independent to uphold individual rights, ensuring the legislature and executive respect laws. International Human Rights Treaties: Protect individuals from state interference, balancing collective interests with human rights. Rights in Emergencies: o Absolute vs. Relative Rights: Some rights (e.g., right to life) cannot be infringed, while others can under specific conditions. Protecting Human Rights Infringements: Only permitted under the following conditions: 1. Provided by law: Must be foreseeable. 2. Necessary in a democratic society: Proportionality test. 3. Protecting others' rights: Harm principle (e.g., Mill). Judicial Intervention: Sometimes seen as undemocratic interference in national affairs, with political pressure on courts to limit independence (e.g., increasing judges, changing retirement ages). The rule of law is a fundamental principle of governance that asserts that everyone is subject to the law, including the government itself- central to accountability. It ensures that laws are applied fairly, consistently, and transparently, preventing arbitrary use of power. Focuses on the relationship between the law and the exercise of (public) power. Key Elements of the Rule of Law: 1. Equality before the law: All individuals, regardless of their status or position, are subject to the same laws and legal processes. 2. Accountability: Governments and public officials must act within the boundaries of the law and can be held accountable for their actions. There is no impunity.  3. Legal certainty: Laws must be clear, accessible, and predictable, so individuals can understand their rights and obligations. 4. Contestability: When interpreting the law, there cannot be one true interpretation- the state cannot claim otherwise. One must always be allowed to argue. 5. Separation of powers: The judiciary must be independent from the legislative and executive branches to ensure fair application of the law. 6. Protection of fundamental rights: The rule of law is often tied to the protection of individual rights and freedoms, ensuring they cannot be overridden arbitrarily. 7. These all contribute to social and political trust in the State. English Tradition: o Law is pluralistic with multiple sources (e.g., custom, court decisions, statutes). o Courts, while part of the Crown, were independent; even the King was subject to the "law of the land." o Emphasises equality and accountability, limiting arbitrary power o Customary law (e.g., Blackstone’s “unwritten maxims and customs”) and court judgments were key in restraining government power. o No central state: The state as a legal source or central actor is historically absent from the Rule of Law. The focus was on law as superior to and constraining the sovereign. Fuller’s 8 principles of morality These represent the "inner morality of law" and are essential for a legal system to function justly and effectively. They ensure that the law can guide behaviour and maintain respect for the rule of law. Generality: Laws must be general in application, applying to all individuals rather than targeting specific people or groups. This principle prevents discrimination or arbitrary use of power. Accessibility: Laws must be publicly known and accessible to everyone. Secret laws undermine the rule of law because people cannot comply with laws they do not know exist. Prospectivity: Laws must apply to future actions, not retroactively.  Retroactive laws violate fairness because individuals cannot be held accountable for actions that were legal at the time they were committed. Clarity: Laws must be clear, understandable, and precise. Ambiguous or vague laws create confusion and undermine the ability of individuals to follow them. Consistency: Laws must be consistent with each other and not contradictory. Contradictory laws create situations where compliance with one law requires violating another, undermining legal certainty. Practicability: Laws must not impose demands that are impossible to follow. Unrealistic or overly burdensome laws undermine the rule of law because people cannot reasonably comply with them. Stability: Laws must remain relatively stable over time. Constantly changing laws create uncertainty and make it difficult for people to plan their actions. Congruence: There must be congruence between the law as written and the law as enforced. If laws are not applied as they are written, this undermines trust in the legal system. Rechtsstaat Literal Meaning: "State of law" or "law-governed state." Emerged in continental Europe in the late 18th century to describe the modern state with its monopoly on force. Key Features: o The state is both the subject and source of law. The state creates, implements, and is bound by the law. o Law is the medium of state activity: A Rechtsstaat operates legally and acts in a rechtlich (lawful) manner. o Focuses on the state’s role in ensuring constitutional safeguards, separation of powers, judicial protection, and fundamental rights.  o Rechtsstaat contrasts with Machtstaat (power state) or Polizeistaat (police state), where law may be overridden or absent. Goes beyond the Rule of Law by incorporating deeper normative commitments such as human dignity and fundamental rights. Comparison Aspect Rule of Law Rechtsstaat Limits on power through independent State as both the source and subject of Focus law. law. Origins Common law tradition (custom, courts). Late 18th-century Europe, modern state. Role of the Decentralised, not central to the law. Central, creates and is bound by law. State Sources of Custom, court decisions, statutes. Derived from the state. Law Equality, accountability, constraints on Legal norms, fundamental rights, Key Principles arbitrariness. constitutionalism. Human Rights Protected via courts against the state. Protected as intrinsic to the legal system. Thin and Thick Conceptions of the Rule of Law (Krygier) Thin Conception: Focuses on formal aspects of laws and legal institutions. Emphasizes clarity, publicity, prospectivity, consistency, and stability. Laws must be enforced according to their terms, without concern for whether they are just. Key Features: o Formal principles (e.g., Fuller’s eight principles of legality) o Procedural approach, easier to apply across diverse legal systems. o Focuses on rule-following, not the moral content of laws. Arguments for Thin Conception: 1. Practicality: Easier to apply universally across different societies and legal systems. 2. Flexibility: Can be used in various political and cultural contexts. 3. Less Controversial: Avoids disagreements over what is considered a "just" society. Thick Conception: Goes beyond formal aspects to include substantive values like justice, democracy, human rights, and equality. Emphasizes the importance of laws promoting a just society and respecting human dignity. Key Features: o Integrates moral and political values (e.g., fairness, human rights). o Requires laws to not only be clear and enforceable but also just. Arguments for Thick Conception: 1. Adequacy: Formal rules alone can allow oppressive regimes; laws must promote justice and protect rights. 2. Human Dignity: Incorporates respect for fundamental rights. (Kant) 3. Long-term Benefits: Fosters fairness, reduces inequality, and prevents abuses. 4. Normative Ideals: Addresses justice and rights, providing a broader ethical commitment. Anatomical vs. Teleological Conceptions of the Rule of Law (Krygier) Anatomical Approach: Focuses on identifying the specific institutional features or structures that should be present in a legal system to qualify as having the rule of law. Concerned with the form of the rule of law: courts, laws, procedures. Key Features: o Catalogues legal structures like clarity, predictability, and institutional arrangements. o Narrow view: focuses on institutions and formalities, rather than the purpose of these structures. o Potential downside: Can overlook whether the rule of law actually achieves its goals, such as limiting arbitrary power. Teleological Approach: Focuses on the purpose or goal of the rule of law. Asks: What is the rule of law trying to achieve? (e.g., limiting arbitrary power, protecting individual rights). Key Features: o Focuses on the outcome of legal systems, not just the structures. o Looks at the larger goal of ensuring fairness, justice, and the protection of rights.  o Broader, more adaptable view: considers how to achieve the rule of law in different contexts. Key Differences Between Thin/Thick and Anatomical/Teleological: Thin vs. Thick: o Thin focuses on formal criteria, such as having clear, public, and stable laws, regardless of their content. o Thick incorporates moral values like justice, human rights, and equality, considering not just whether laws exist, but whether they are just. Anatomical vs. Teleological: o Anatomical focuses on identifying the institutional structures (e.g., courts, clear laws) that should exist in a system. o Teleological focuses on the goal of the legal system, such as ensuring fairness and limiting arbitrary power. Krygier’s View on Combining These Approaches: Teleological Approach is more productive for rule of law promoters because it encourages them to focus on what the rule of law is supposed to achieve (e.g., limiting arbitrary power and promoting justice), rather than merely cataloguing institutional features (which is the anatomical approach). Why Teleology Helps: Focusing on the purpose of the rule of law leads to more flexible, adaptable strategies for fostering it in various social or political contexts. It prevents the imposition of rigid institutional structures that may not work effectively in all situations. This ensures that efforts to promote the rule of law can be tailored to specific needs and environments. Clarification of Concepts: Thin vs. Thick concerns the substance of the rule of law (formal vs. substantive values). Anatomical vs. Teleological concerns the focus (specific institutional features vs. the purpose or goal of the rule of law). By combining a teleological approach with a thick conception, promoters of the rule of law can ensure that both the structure and the outcome are aligned with achieving justice, fairness, and the protection of individual rights. The relationship between legality and governance The relationship between legality and governance is grounded in the idea that legality focuses on the formal rules and laws that govern a society, often without considering whether those laws are morally right or wrong. Governance, on the other hand, is about ensuring the well-being of the population and thinking about the greater good—how laws and policies can address the needs of the people and guide the society effectively. In this context, governance is not solely concerned with the letter of the law but with achieving practical outcomes for the society's welfare.