Partie 1 - Chap 3 PDF Natural Law Syllabus 2023-2024

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Furthermore, akin to Suarez's expansion of the concept, Saint-Germain introduces a compassionate dimension to equity, describing it as the "sweetness of mercy." This addition, abs...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Furthermore, akin to Suarez's expansion of the concept, Saint-Germain introduces a compassionate dimension to equity, describing it as the "sweetness of mercy." This addition, absent in Aristotle's original conception, serves to mitigate the strictness of legal interpretations. Modern interpretations often embrace this compassionate aspect of equity, which, at times, has led to concerns about potential arbitrariness and subjectivity in judicial decisions. An illustrative scenario, like a parent stealing bread to feed their children, reflects a departure from the Aristotelian view of equity and aligns more with an approach that seeks to balance legal rigor with merciful considerations. 2. Richard Hooker Born in 1554, Hooker was educated at Corpus Christi College, Oxford, where he became a professor in 1577, before being ordained a priest in 1579 and marrying a few years later. Hooker is best known for the publication of his The Laws of Ecclesiastical Polity in 1594. In this book, he developed Anglican theological thought, against Puritan critics who demanded, in the spirit of Calvinist reformation, the pure and simple disappearance of the clergy. The laws of nature/reason(voy text page 64) In the evolution of natural law, the departure from its 'natural' dimension becomes more evident in the works of Hooker, a departure already perceptible in Saint-Germain. Hooker defines natural law as what reason can discover without reliance on revelation or divine assistance, emphasizing its alignment with the law of reason. While paraphrasing Aquinas extensively, Hooker introduces the idea of an inconvenient state of nature, suggesting that escape from it necessitates submission to public government for the attainment of peace, tranquility, and property enjoyment. He acknowledges a potential natural right to govern for the noble, wise, and virtuous, reminiscent of Plato, but insists on its exercise being contingent on the consent of the governed, thus introducing a significant limitation. Although the inclination of humans to live in society echoes Aristotle, Hooker introduces a distinct individualistic and 'contractual' dimension to civil society. The pursuit of one's interests drives individuals to seek company, and the requirement of unanimous consent foreshadows elements later found in social contract theories. Hooker's work, seen as a conduit for continental political theory into England, likely influenced thinkers such as Thomas Hobbes and John Locke. The défintion of law “They who are thus accustomed to speak apply the name of Law unto that only rule of working which superior authority imposeth; whereas we, somewhat more enlarging the sense thereof, term any kind of rule or canon, whereby actions are framed, a law” (HOOKER, The Laws of Ecclesiastical Polity) In this second excerpt, Hooker evokes in his first sentence the positivist position “par excellence”: one calls law only those rules that have been adopted by the higher authority. However, Hooker prefers a broader meaning of the word 'law' (which, for the record, also translates as 'right'), namely all rules that are intended to guide, or direct, or impose behaviour on man. Chapter 3. Modern Natural Law §1. The context a) The 17th century and the Scientific Revolution The 16th century saw relative economic expansion, particularly due to wealth from South American colonies, but from 1600 onwards, Europe faced deteriorating conditions. The continent was recovering from the Reformation while grappling with economic crises, plague outbreaks, and political instability. Spain's dominance waned, Germany remained fragmented, and France struggled with religious tensions exacerbated by Henry IV's assassination in 1610, leading to the devastating Thirty Years' War. In England, the Tudor dynasty ended with Elizabeth I's death in 1603, ushering in the Stuart line. James I's reign highlighted the clash between absolute monarchy and English political traditions. Chief Justice Edward Coke emphasized the monarch's subordination to divine authority and common law, notably asserting in the Bonham Page 28 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni decision that Parliament's acts must align with common law, hinting at the supremacy of natural law over positive law, although interpretations vary. Here is an extract : “One cannot be Judge and attorney for any of the parties.... And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void; and, therefore in.... Thomas Tregor's case... Herle saith, some statutes are made against law and right, which those who made them perceiving would not put them in execution” (Justice Coke, Thomas Bonham v College of Physicians, 1610) During the 17th century, the debate over royal powers intensified under the reign of Charles I, leading to conflicts with Parliament and eventually his execution in 1649. Cromwell's Republican Commonwealth followed until 1660, when the monarchy was restored with Charles II. The Habeas Corpus Act of 1679 marked a significant step in protecting individual liberties. However, tensions rose when James II, a Catholic monarch, ascended the throne, especially after Louis XIV revoked the Edict of Nantes in 1685. The "Glorious Revolution" of 1688 replaced James II with his Protestant daughter Mary and her husband William of Orange, leading to the enactment of the Bill of Rights in 1689, which limited the monarch's powers and established key parliamentary rights, marking a shift towards constitutional monarchy. It was during this period that Locke published his influential Second Treatise on Civil Government. Intellectually, the 17th century witnessed the "Scientific Revolution," characterized by a shift towards a mechanistic view of nature and the primacy of reason over authority. This paradigm shift, led by figures like Galileo, Newton, Leibniz, and Descartes, transformed Western thought and paved the way for modern science. Descartes, in particular, advocated for a method of systematic doubt as a means to arrive at certain knowledge, famously articulating his cogito, "I think, therefore I am," as the foundation of knowledge. This Cartesian doubt laid the groundwork for his philosophical approach and contributed to the development of modern epistemology. « Mais aussitôt après je pris garde que, pendant que je voulais ainsi penser que tout était faux, il fallait nécessairement que moi qui le pensais fusse quelque chose ; et remarquant que cette vérité : je pense, donc je suis, était si ferme et si assurée, que toutes les plus extravagantes suppositions des sceptiques n'étaient pas capables de l’ébranler, je jugeai que je pouvais la recevoir sans scrupule pour le premier principe de la philosophie que je cherchais » (DESCARTES, Discours sur la méthode) Descartes, through his method of systematic doubt, arrived at the foundational principle of his philosophy: "I think, therefore I am." This proposition became the bedrock of certainty upon which he built his philosophical system. He reasoned that since one must exist in order to think, the existence of the thinking self is undeniable. Descartes asserted that clear and distinct ideas, formed by the mind, are inherently true, providing a basis for establishing knowledge. This approach elevated causality to a scientific status, as Descartes argued that every effect must have a cause. Furthermore, Descartes' method led to a significant reevaluation of rhetoric and dialectical argumentation, which he viewed as inferior to logical analysis and deductive reasoning. He emphasized the distinction between the subject and object, as well as the division of the world into two realms: that of thought and that of extension or being. This dualistic framework became fundamental to modern philosophical thought, influencing subsequent thinkers to adopt the methods of mathematicians and geometers, with jurists also following suit in their approach to reasoning and analysis. b) The 18th century and the Enlightenment The 18th century witnessed contrasting trajectories across Europe. England experienced economic prosperity, culminating in the beginnings of the Industrial Revolution. Meanwhile, Spain faced continued decline due to isolationist policies and religious dominance. Italy, fragmented and subject to external control, flourished intellectually and artistically. Germany remained divided until the rise of Prussia under Frederick II. In France, the reigns of Louis XIV and Louis XV saw costly wars that burdened the country, particularly the Third Estate. The American Revolution, fueled by the Declaration of Independence in 1776, indirectly influenced France by straining its economy through military aid to the American colonies. This economic strain, along with Enlightenment ideals of the social contract and human rights, sparked the French Revolution. The convocation of the Estates General, the formation of the National Assembly, and the storming of the Bastille were pivotal events in this upheaval, reshaping the political landscape of Europe. Page 29 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni In L'Ancien Régime et la Révolution, Alexis de Tocqueville sums up the state of mind of French 'gens de lettres' in the middle of the 18th century, which he considers to be unparalleled elsewhere and at any other time: “Still, setting details aside, and looking only to main principles, it is readily discerned that all these authors concurred in one central point, from whence their particular notions diverged. They all started with the principle that it was necessary to substitute simple and elementary rules, based on reason and natural law, for the complicated and traditional customs which regulated society in their time. (…) the whole of the political philosophy of the eighteenth century is really comprised in that single notion”. The Enlightenment followed on from the previous century by placing man, transformed into a citizen, at the center of attention and by advocating the cult of reason and the rejection of all spiritual and intellectual authority. c) Theories of modern natural law The emergence of modern science profoundly influenced the philosophy of law, providing a scientific basis for modern natural law theories. This occurred within a context of crisis, where traditional justifications for law and political power, often rooted in Christianity, were being questioned. Factors contributing to this crisis included religious conflicts, political fragmentation, cultural discoveries, and socio-economic changes. In this context, reason became paramount, with human reason being seen as the ultimate tool for understanding the world. Cartesian philosophy, which divided body and mind and emphasized the centrality of reason, epitomized this shift. Certainty, previously provided by religious authority, was sought through reason and science. Two main currents emerged in modern natural law theory: the rationalist-idealist and the empiricist-voluntarist. The former, exemplified by Grotius, viewed law as a coherent system deduced from first principles through reason. The latter, starting with Hobbes, focused on individual rights and self-preservation, challenging traditional notions of natural law rooted in divine order. This shift marked a move away from the medieval conception of natural law, emphasizing human nature and reason over divine authority. While modern natural law theories reached their peak with authors like Pufendorf and Wolff, they also contained the seeds of their own decline, as they disconnected natural law from its original roots in nature and God. This evolution would unfold over centuries, with modern natural law theories undergoing significant transformations. “It seemed worth making the effort to prove that what is handed down on this matter does by no means all rest upon vacillating opinions, but flows clearly enough from fixed and first principles. Now the knowledge which considers what is upright and what is base in human actions (…) rests entirely upon grounds so secure, that from it can be deduced genuine demonstrations which are capable of producing a solid science” (PUFENDORF, On the Law of Nature and People)  The quote emphasizes the pursuit of certainty in law, likening it to mathematical certainty. This quest for certainty is exemplified by Christian Wolff's work, "Institutions of the Law of Nature and of Nations," where he seeks to deduce all human rights and obligations from human nature through a purely deductive approach. Wolff's ambition reflects the broader project of modern natural law: to derive natural rights from human nature using reason and deductive logic. Wolff's assertion that he was the first to demonstrate the derivation of human actions from human nature underscores the confidence in reason and the individual's rational capacity. In this framework, the social contract assumes a central role, departing significantly from Aristotle's conception of society's natural origin. The social contract, akin to Descartes' method of starting from a clean slate, lays the foundation for legal principles based on reason and simplicity. It leads to two main approaches: Hobbes' view of absolute obedience to the sovereign and Locke's insistence on the sovereign's duty to protect natural rights. It's important to note that there isn't a singular school of modern natural law; rather, there are diverse theories proposed by different authors. Three prominent theorists discussed here are Grotius, Hobbes, and Locke, each contributing distinct perspectives to the discourse on natural law. Page 30 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni §2. Grotius (1583-1645) 1. A few words about Grotius, the “Descartes” of Law Hugo De Groot, known as Grotius, was born in 1583 in the Netherlands and displayed exceptional intellect from a young age. He embarked on a remarkable academic journey, showcasing his talents in various fields and earning admiration for his scholarly achievements. Despite his youth, he became involved in significant diplomatic missions and legal proceedings, gaining recognition and acclaim. Grotius became entangled in religious and political conflicts, aligning himself with the remonstrants in a dispute against orthodox Calvinists. This led to his imprisonment in 1619, followed by a daring escape orchestrated by his wife. He found refuge in France, where he authored his seminal work, "The Law of War and Peace," published in 1625. This work, written in Latin and later translated into French, garnered widespread acclaim across Europe, establishing Grotius as a pioneering figure in the field of international law. At the core of his magnum opus is Grotius' belief in a universal law governing all nations, positioning him as a key figure in the development of public international law alongside De Vitoria and Suarez. He critiques the prevailing lack of restraint in warfare among Christian nations, advocating for a more civilized approach to conflict resolution. While Grotius is often hailed as the founder of modern natural law theory, his ideas were not entirely groundbreaking, as he drew upon the works of his predecessors, particularly the Spanish scholastics. However, his contributions were marked by a distinct methodological approach, emphasizing the gradual specification of general principles to suit specific contexts. In his earlier work, "De Jure Praedae," Grotius outlines his methodological approach, which he expands upon in "The Law of War and Peace." His method involves establishing universal truths before adapting them to particular circumstances, reflecting his systematic and rigorous approach to legal scholarship. 2. Method and style “It remains now that I briefly explain with what aids, and with what care, I undertook this work. In the first place, it was my object to refer the truth of the things which belong to Natural Law to some notions, so certain, that no one can deny them, without doing violence to his own nature. For the principles of such Natural Law, if you attend to them rightly, are of themselves patent and evident, almost in the same way as things which are perceived by the external senses; which do not deceive us, if the organs are rightly disposed, and if other things necessary are not wanting. (…) I profess, in all sincerity, that, as mathematicians consider their figures as abstracted from body, so did I, in treating of Rights, abstract my mind from every particular fact” (GROTIUS, The Law of War and Peace) o Hugo Grotius aimed to reform the scholastic style of Thomas Aquinas, which, while comprehensive, was often convoluted due to the abundance of information and authorities cited. o Grotius proposed a method akin to Euclid's axioms, organizing legal principles into a systematic and logical structure. o His approach mirrored that of Descartes, leading some to dub him the "Descartes of law," although it's debated whether Grotius influenced Descartes or vice versa during Descartes' time in the Netherlands. o Grotius advocated for starting from clear and undeniable first principles, divorcing from specific cases to derive all legal rules logically. o Despite still referencing ancient authorities like Bartolus, Baldus, and Thomas Aquinas, Grotius' method yielded a more rational, organized, and modern approach to law, albeit distinct from Aristotle's experimental method embraced by English empiricists. 3. Meanings of the word ‘law’ (ius) (Voy text pg 72 sylla) Hugo Grotius delineates three primary meanings of the term "ius," each reflecting different dimensions of law and justice: Page 31 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 1. Aristotelian-Thomistic: Concept of Justice: Grotius initially defines "ius" as what is just or, inversely, what is not unjust. He draws inspiration from Aristotle and Thomas Aquinas, emphasizing that justice aligns with the nature of society composed of rational beings. Grotius cites various sources like Cicero and Seneca to illustrate this concept, highlighting justice among equals (citizens) and unequals (parents and children, masters and slaves). For Grotius, the source of natural law stems from humanity's inherent sociability. 2. Individual Rights: Grotius delves into the aspect of "ius" pertaining to the individual, defining it as a moral quality associated with one's ability to possess or rightfully act. He distinguishes between real and personal rights, categorizing them as perfect (a faculty) or imperfect (an aptitude). He emphasizes the significance of "rigorous rights," referring to powers over oneself (freedom), over others, property rights, and the ability to demand what is due. This notion anticipates the modern concept of subjective rights, central to Grotius's argument that just wars defend individual rights. 3. Objective Law: Grotius broadens the definition of "ius" to encompass the notion of law in its widest sense, referring to any compulsory rule, particularly those obliging individuals to what is good and praiseworthy, extending beyond mere justice. This concept aligns with the idea of objective law, emphasizing societal rules that promote the common good. Notably, Grotius introduces the notion of subjective rights before objective rights, indicating a paradigm shift where individual rights precede collective laws. 4. Man and natural law (Voy text page 74 sylla) Carneades, a Greek sceptic philosopher, challenged the notion of certainty, advocating systematic doubt and asserting the impossibility of affirming any truth definitively. Cicero recounts Carneades delivering two conflicting speeches about justice within two days, highlighting the philosophical skepticism prevalent in the "New Academy." Grotius, in response, rejects this relativism and the idea that utility alone determines justice and equity. He favors Aristotle's view, emphasizing human sociability as the foundation of natural law. While Grotius previously hinted at social contract theories, he maintains that civil society emerges from human will, rooted in natural sociability. The core principles of natural law, akin to contemporary legal concepts, include respecting others' property, fulfilling promises, and compensating for harm caused. Grotius does not claim private property as an original natural law but acknowledges its protection under natural law against theft1. Furthermore, Grotius posits that natural sociability begets natural law, which in turn gives rise to civil law. These principles are framed as obligations rather than rights, reflecting the revival of permissive natural law concerning property. Grotius's primary endeavor is to establish public international law, comprising laws agreed upon by states and those benefiting all nations. He suggests that international law, including treaties, can be derived from natural law principles such as honoring promises, extending the concept beyond private contracts to agreements between states. 5. God and natural law (Voy text page 76) Grotius revisits the medieval question of the relationship between natural law and divine will, setting the stage for the secularization of natural law in the 17th century. He asserts that natural law, rooted in human sociability, would remain unchanged even without God's existence or interest in human affairs. This departure from traditional theological grounding reflects the spirit of the scientific revolution, emphasizing reason over belief. 1 The famous French jurist Léon Duguit wrote at the beginning of the 20th century that these three principles made it possible to summarise the Civil Code: "In civil legislation, we see above all constructive norms, which create and organise the technique necessary to implement the small number of normative rules that determine the obligations of individuals in their relations with each other. If we take the Napoleonic Code as an example, disregarding family law, we will find three legal norms, not one more: freedom of contract, respect for property, the obligation to compensate for harm caused to others by a fault. All other provisions are technical or constructive" (L. Duguit). Page 32 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni However, Grotius clarifies that he is not an atheist and acknowledges the importance of attributing natural law to God. Yet, he suggests that natural law's principles would persist independently of divine intervention. This stance challenges voluntarist views and aligns with intellectualist perspectives, asserting that certain actions are inherently good or bad, determined by right reason. Grotius distinguishes between divine law, which consecrates natural law, and voluntary divine law, which adds obligations through divine commands. This distinction mirrors Aquinas's framework, where divine law encompasses both natural law and positive law, the latter deriving authority from God's adoption. Grotius's approach, marked by a departure from scholasticism and a systematic deductive method, influences later natural law theorists. His emphasis on reason and fundamental principles shapes the works of subsequent thinkers such as Pufendorf, Wolff, and Rousseau, as well as legal reasoning methodologies like the judicial syllogism. Despite Grotius's recognition of subjective natural rights, articulated as duties rather than rights of resistance to authority, his work lays the groundwork for the emergence of modern natural law theories, paving the way for further development in subsequent centuries. §3. Thomas Hobbes (1588-1679) a) Hobbes’ Early life Hobbes, a significant figure in English political thought, diverges from traditional approaches by presenting abstract, general political theories rather than analyzing historical experiences. His seminal work, "The Leviathan," published in 1651, stirred controversy due to its perceived impiety, leading to parliamentary proceedings against it. Despite his disagreement with Descartes, Hobbes shares a preference for mathematical method, criticizing traditional philosophers for their lack of methodological rigor. He is often likened to the Galileo of philosophy and political science for his commitment to systematic reasoning. Hobbes's departure from tradition extends beyond methodology. He rejects the notion of man as inherently political and social, instead emphasizing human behavior driven by passions, particularly the fear of death. Natural law, in Hobbes's view, is derived from the instinct for self-preservation, representing an unconditional right to life rather than a duty-based morality. Unlike previous thinkers who emphasized duties associated with natural law, Hobbes focuses on individual rights, particularly the right to life. This shift underscores the role of the state in protecting individual rights, marking a departure from moral conceptions of natural law toward legal positivism. Hobbes's emphasis on individual rights and the social contract reshapes the understanding of the relationship between individuals and society, laying the groundwork for modern legal and political theories. b) the state of nature voy text pg 80 sylla Hobbes's "The Leviathan" was written against the backdrop of civil unrest in England, where he envisions a state of nature marked by perpetual conflict. Although he acknowledges the hypothetical nature of this state, he argues that without a common power, life would resemble the chaos of civil war. In the state of nature, individuals are relatively equal in physical and mental faculties, leading to competition and enmity as they pursue their desires. This equality breeds a perpetual state of war, where security is sought through strength or cunning, hindering any meaningful human activity.  In this state, there is no concept of justice, injustice, good, or evil, nor is there property or law. Hobbes's perspective aligns with legal positivism, suggesting that without a governing authority, there can be no law.  However, amidst this bleak scenario, Hobbes identifies one natural right: the freedom of individuals to use their power for self-preservation. Yet, this freedom only perpetuates insecurity. The fear of death and the desire for security prompt individuals to enter into a social contract, guided by reason, which establishes the laws of nature as the "articles of peace" necessary for societal order and stability. Page 33 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni c) "Right of nature" (jus naturale) - "laws of nature" (lex naturalis) voy text pg 82 i. distinction between right of nature and law of nature Central to Hobbes's thought is the distinction between the "right of nature" and the "law of nature." The right of nature, according to Hobbes, grants individuals the freedom to act in their own self-interest, particularly in the pursuit of self-preservation. It is characterized by a state of nature where individuals have equal faculties but compete for scarce resources, leading to a perpetual state of conflict and insecurity. In contrast, the law of nature imposes moral obligations aimed at maintaining peace and security. Derived from reason, these laws compel individuals to seek peace and form social contracts for mutual benefit. The laws of nature, as delineated by Hobbes, prescribe behaviors conducive to peaceful coexistence, such as refraining from harming others and honoring agreements. ii. the laws of nature Hobbes identifies three fundamental laws of nature. The first law requires individuals to seek peace and pursue it by all means necessary. The second law dictates the relinquishment of certain rights in exchange for security, forming the basis of the social contract. The third law obligates individuals to fulfill their contractual obligations, laying the foundation for property rights and justice within society. iii. execution of agreements In Hobbes's conception, justice is contingent upon the execution of agreements rather than adherence to intrinsic moral principles. He rejects traditional notions of distributive justice, arguing instead that value is determined by market demand and contractual agreements. Justice, for Hobbes, arises from the enforcement of contracts and the preservation of social order through coercive power. Hobbes further enumerates additional laws of nature, encompassing virtues such as gratitude and equity, which contribute to the stability and cohesion of society. These laws, derived from reason, are encapsulated by the golden rule: "do not do to others what you would not want done to yourself. iv. A civil authority ? While these laws are binding internally, their external enforcement relies on the establishment of civil authority. Civil laws, instituted by sovereign power, enforce the laws of nature and maintain social order. Hobbes's theory thus anticipates legal positivism, asserting that true law emanates from sovereign authority capable of enforcing compliance. Ultimately, Hobbes contends that the establishment of civil authority, embodied in the Leviathan, is essential for preserving peace and preventing the descent into a state of nature characterized by perpetual conflict and insecurity. His philosophical framework offers profound insights into the nature of authority, justice, and governance, shaping subsequent political thought and influencing the development of modern legal theory. d) the leviathan voy text pg 85 Hobbes's conception of the social contract is distinguished by its assertion that the contract is made solely between individuals, excluding the Sovereign. Consequently, subjects cannot hold the Sovereign accountable for breaches of trust, and they cannot liberate themselves from subjection by invoking the Sovereign's misconduct. This underscores the primacy of political and legal order over trust in the sovereign authority. Even if the Sovereign's actions contravene the laws of nature by satisfying personal passions at the expense of trust, subjects cannot rebel or accuse the Sovereign of injustice.  This is because the establishment of civil authority supersedes individual judgments of justice, with the law defining what is just and unjust, and only the state possessing the authority to establish laws. Page 34 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Hobbes's doctrine of absolute sovereignty asserts that the state, by definition, cannot harm its subjects, as it defines justice and injustice through legislative activity. Thus, accusations of injustice against the state are deemed futile, as justice is contingent upon the enactment of laws by the sovereign authority. Critics, such as Michel Villey, have argued that Hobbes's theory results in the transition from anarchy to tyranny, with natural law being neutralized upon entry into society. However, Hobbes maintains that individuals retain certain liberties, such as the right to disobey orders that threaten their survival, or the liberty to refuse self-incrimination when questioned by the sovereign. Notably, Hobbes's framework omits the role of God, presenting a society free from divine authority. Natural law, according to Hobbes, derives from factual equality rather than divine mandate. He argues for the subordination of ecclesiastical power to civil authority, asserting that civil power is best suited to maintain peace and security. In contrast to Aristotle's view of man as a political animal guided by reason and morality, Hobbes portrays humans as driven by self-interest and mistrust, with language being used for deception rather than enlightenment. Hobbes's political theory prioritizes efficient and legitimate governance over moral virtue, ushering in the modern doctrine of sovereignty centered on order and will rather than deliberation or judgment. To conclude, Hobbes's philosophy lays the groundwork for modern individualism, materialism, and secularism, challenging traditional notions of political authority and moral virtue. §4. John Locke (1632-1704) John Locke, often hailed as a founding figure of political liberalism and English empiricism, challenged the Cartesian theory of innate ideas by proposing that knowledge originates from sensory experience. Born in England in 1632, Locke's influential works, including the "Essay Concerning Human Understanding," emphasized the importance of empirical observation. Locke's involvement in the political turmoil of his time, particularly during the English Revolution of 1688, shaped his views on governance and authority. He rejected the absolutist claims of figures like Sir Richard Filmer, arguing that political power does not derive from divine ancestry but must have a distinct origin. While Locke's philosophy shares similarities with Hobbes in addressing the state of nature, it also exhibits a stronger religious undertone, although he remains cautious in explicitly attributing natural law to divine origin. Locke's emphasis on individual rights, limited government, and the consent of the governed laid the groundwork for modern democratic principles and had a lasting impact on political theory. a) the state of nature voy text pg 88 Locke's concept of the state of nature presents a notable departure from Hobbes' grim portrayal. He asserts that this state is characterized not by constant conflict, but by peace, mutual assistance, and preservation. Locke directly addresses those who mistakenly equate the state of nature with a state of war, emphasizing the stark contrast between them. In Locke's view, the state of nature is a realm of perfect freedom and equality.  Here, individuals possess natural rights and liberties, yet these freedoms are not unchecked.  They are tempered by the law of reason, which dictates that no one should harm another's life, health, liberty, or property. This principle of mutual respect forms the foundation of Locke's social contract theory. Interestingly, Locke introduces the notion of property rights within the state of nature, a departure from Hobbes' framework. According to Locke, individuals have the natural right to property, provided they adhere to the laws of nature. This includes the right to possess and enjoy what one rightfully owns. Moreover, Locke elaborates on the concept of derived rights, which individuals possess to safeguard their primary natural rights. For instance, everyone has the right to punish transgressions against the laws of nature in order to Page 35 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni deter further violations. This right to enforcement is crucial for maintaining the effectiveness of natural laws in the absence of a centralized authority. Additionally, Locke introduces the idea of the right to reparation for damages caused by the wrongdoing of others. This right underscores a sense of justice within the state of nature, as individuals are entitled to seek redress for harms inflicted upon them. However, Locke also acknowledges the inherent fragility of the state of nature. While it may initially be characterized by peace and cooperation, there exists the potential for it to degenerate into conflict. This recognition hints at the challenges and risks inherent in the absence of a formal social contract and centralized authority. So, Locke's conception of the state of nature represents a significant departure from Hobbes' vision. It is a realm of peace and equality, where individuals possess natural rights and freedoms constrained by moral obligations. Locke's introduction of property rights and nuanced ideas about derived rights add depth to his philosophical framework, reflecting a transition from earlier legal traditions. Nonetheless, Locke acknowledges the potential for conflict within the state of nature, highlighting the need for a social contract to establish order and governance. b) the right to property voy text pg 90 Locke's contribution to the debate on natural property rights offers a fresh perspective, departing from medieval discourse yet addressing contemporary concerns. He builds upon the notion that originally, the earth and its resources were common to all, but introduces a novel justification for individual property rights based on labor mixing. o According to Locke, when an individual applies their labor and effort to natural resources, transforming them into usable goods, the resulting product becomes their rightful property. However, Locke acknowledges certain limitations to this principle. He stipulates that individuals can only appropriate resources if there is enough left for others and if they do not waste or hoard excessively. This ensures fairness and prevents unfair deprivation of resources for others. Locke also explores the concept of property accumulation in civil society, where the introduction of currency allows for the unequal distribution of wealth. Despite this, Locke defends the legitimacy of acquiring wealth through labor and investment, essentially endorsing the capitalist doctrine. Critically, Locke's emphasis on labor value does not necessarily translate into benefits for workers, especially in an England where land was already largely distributed. Additionally, his involvement in the slave trade undermines his position, as he attempts to justify certain forms of slavery based on criminal punishment. While asserting that individuals cannot be enslaved without consent, Locke paradoxically allows for enslavement as punishment for crime, a stance fraught with moral ambiguity. In essence, Locke's theory of property rights represents a significant departure from medieval thought, introducing labor-based justification while grappling with the ethical complexities of property ownership and individual liberty. c) the social contract voy text pg 91-92 Locke presents a nuanced perspective on the transition from the state of nature to civil society, emphasizing the role of society in safeguarding individuals' lives, liberties, and property. Contrary to Hobbes, Locke depicts the state of nature not as a perpetual war, but as a condition of limited freedom and perfect equality. However, due to human fallibility and the absence of established laws, this state is prone to descent into fear and insecurity, prompting individuals to seek the security of society. The motivation for entering society lies in the need to establish laws, impartial judges, and executive powers (separation of power idea) to ensure the preservation of individuals' rights and property. This reflects a departure from Hobbes, where the emphasis was on physical and psychological security, to Locke's focus on legal security. The three branches of government—legislative, judicial, and executive—are instituted to address the shortcomings of the state of nature and promote tranquility, safety, and the common good. Page 36 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Crucially, Locke underscores the importance of preserving freedom, both in the state of nature and within civil society. In the state of nature, freedom entails recognizing no sovereign power on earth, while in civil society, individuals should only be subject to powers to which they have consented. This underscores Locke's advocacy for limited government, wherein the authority of the government is circumscribed by the mandate granted by the social contract. d) a limited mandate Voy text pg 93 Locke emphasizes that political power is entrusted to the government by society, guided by divine and natural law, and with specific limitations. o These limitations define the boundaries within which the legislative power must operate, and the people retain the ultimate authority to hold the government accountable. The government must govern according to established, stable, and transparent laws, ensuring that the people know their rights and obligations. Contrary to Hobbes, Locke argues that the sovereign cannot act arbitrarily or contrary to conscience without risking impeachment or even revolution. Locke introduces the idea of a right to revolution, emphasizing the subversive potential of natural law to challenge unjust positive laws. o This assertion marks a significant departure in the history of natural law, highlighting its role not just in legitimizing existing power but also in challenging and reshaping political structures. §5. Statements 1. The American declaration of independence “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness” The Declaration of Independence aims to elucidate the reasons for the United States' separation from the English Crown, asserting the legitimacy of this independence based on the laws of nature and the entitlement granted by God to all people. The influence of Locke's philosophy, particularly regarding the concept of natural rights, is evident and acknowledged by its author, Thomas Jefferson. While Locke's idea of the natural right to property is omitted, it is replaced by the notion of the natural right to "the pursuit of happiness" in the Declaration. Nonetheless, the document emphasizes that all individuals are created equal and endowed with unalienable rights such as life and liberty. Governments are established to safeguard these rights, and if they fail in this duty, the people have the right to institute new governments that better uphold these principles. However, the practical application of these ideals has proven challenging throughout U.S. history. The Supreme Court's decision in the Dred Scott case in 1857, which denied equal rights to African Americans, highlights this difficulty. Abraham Lincoln's response to this decision acknowledges the Declaration's aspirational nature, recognizing that while the framers declared equality, achieving it in reality requires ongoing efforts and struggles. The United States continues to grapple with achieving true equality for all its citizens, reflecting the ongoing relevance and significance of the principles articulated in the Declaration of Independence. Page 37 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 2. The French declaration of the Rights of Man and the Citizens (1789) « Les Représentants du Peuple Français, constitués en Assemblée Nationale, considérant que l'ignorance, l'oubli ou le mépris des droits de l'Homme sont les seules causes des malheurs publics et de la corruption des Gouvernements, ont résolu d'exposer, dans une Déclaration solennelle, les droits naturels, inaliénables et sacrés de l'Homme, afin que cette Déclaration, constamment présente à tous les Membres du corps social, leur rappelle sans cesse leurs droits et leurs devoirs ; afin que les actes du pouvoir législatif, et ceux du pouvoir exécutif, pouvant être à chaque instant comparés avec le but de toute institution politique, en soient plus respectés; afin que les réclamations des citoyens, fondées désormais sur des principes simples et incontestables, tournent toujours au maintien de la Constitution et au bonheur de tous. En conséquence, l'Assemblée Nationale reconnaît et déclare, en présence et sous les auspices de l'Etre suprême, les droits suivants de l'Homme et du Citoyen. Art. 1er. - Les hommes naissent et demeurent libres et égaux en droits. Les distinctions sociales ne peuvent être fondées que sur l'utilité commune. Article 2. - le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression (…) Art. 6. - La Loi est l'expression de la volonté générale. (…) » The American and French declarations share significant similarities, suggesting mutual influence despite differences in their drafting processes. Both emphasize the centrality of the individual and the role of government in safeguarding natural rights. They also reflect Enlightenment ideals, appealing to reason and simple, incontrovertible principles derived from natural law. Both declarations assert a radical perspective on the relationship between natural rights and political power, positing that governments exist to protect these rights and can be overthrown if they fail in this duty. This subversive function of natural law, witnessed in both declarations, aligns with the revolutionary spirit of the 18th century. However, distinctions exist. The American declaration emphasizes the role of God in granting individuals the right to seek independence, whereas the French declaration refers to a more abstract Supreme Being. Additionally, the French declaration explicitly mentions property as a natural right, a detail absent in its American counterpart. Finally, the French declaration pays homage to Rousseau's concept of the general will, which is absent in the American context. These similarities and differences underscore the shared Enlightenment values and historical contexts that shaped both declarations, reflecting their enduring significance in the history of political thought. 3. The Constitution of the Fourth Republic (1946) « Au lendemain de la victoire remportée par les peuples libres sur les régimes qui ont tenté d'asservir et de dégrader la personne humaine, le peuple français proclame à nouveau que tout être humain, sans distinction de race, de religion ni de croyance, possède des droits inaliénables et sacrés. Il réaffirme solennellement les droits et libertés de l'homme et du citoyen consacrés par la Déclaration des droits de 1789 et les principes fondamentaux reconnus par les lois de la République. Il proclame, en outre, comme particulièrement nécessaires à notre temps, les principes politiques, économiques et sociaux ci-après : La loi garantit à la femme, dans tous les domaines, des droits égaux à ceux de l'homme. (…) » Before closing the first part of the course, we take a short step back in time to briefly mention the Constitution of the Fourth French Republic adopted in 1946. The rights and freedoms of the Declaration of 1789 were reaffirmed in it after the Second World War. The careful reader will note, however, that the rights now refer to every 'human being', with the equality of women and men being emphasised as particularly necessary at the time. In response to the US Supreme Court's Dred Scott decision, it is made clear that these rights are recognised irrespective of race. Last but not least, the rights that were natural, inalienable and sacred are now only inalienable and sacred, reflecting the discrediting of natural law in the interim. Page 38 sur 73