Natural Law PDF 2023-2024

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni PART II. THE DECLINE OF NATURAL LAW The 19th century was marked by significant geopolitical shifts and internal upheavals in Europe. The aftermath of the Fre...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni PART II. THE DECLINE OF NATURAL LAW The 19th century was marked by significant geopolitical shifts and internal upheavals in Europe. The aftermath of the French Revolution and Napoleon's military campaigns led to the Congress of Vienna in 1815, which aimed to restore stability. Despite relative peace internationally, the century saw internal unrest, notably the "year of revolutions" in 1848, which resulted in concessions such as written constitutions and expanded suffrage in many states. Major changes occurred in Germany and Italy, with the emergence of unified nation-states. In Legal theory, the 19th century saw a shift away from natural law and the social contract towards legal positivism, particularly in Germany. The Historical School, influenced by romanticism, viewed law as an expression of the people's consciousness and traditions, rejecting the universalism of natural law. Legal positivism separated law from morality, defining it as state-derived commands and norms. This period also witnessed the beginning of social legislation in response to industrialization and societal challenges. The concept of the rule of law (Rechtsstaat) gained prominence, with two conceptions emerging: a substantive focus on legal order and purpose, and a formal emphasis on rational organization. While the concept declined in the late 19th century, it resurfaced post-World War II, especially with the establishment of constitutional courts to safeguard fundamental rights. The 2tTh century saw Europe ravaged by two world wars, prompting reflection on political, legal, and social reforms. Philosophical discourse shifted towards uncertainty and the limitations of language, challenging previous paradigms of certainty. Legal positivism faced criticism for its perceived role in enabling totalitarian regimes, leading to a reconsideration of natural law principles. The latter half of the century witnessed the rise of fundamental rights discourse, culminating in international declarations and the establishment of constitutional jurisdictions to protect human rights. Chapter 1. The first Criticisms §1 David Hume (1711-1776) a) A few words on Hume David Hume, a prominent Scottish philosopher of the 18th century, rejected innate ideas and argued that all human knowledge is derived from experience. His major work, "Treatise on Human Nature," explores various aspects of human understanding, passions, and morality. Hume's empiricist approach challenged the Cartesian notion of innate knowledge and emphasized the role of sensory impressions in forming ideas. He contended that causality, like all natural laws, cannot be proven through a priori reasoning but is instead based on observed regularities in the conjunction of events. Hume argued that humans infer causality from repeated experiences of certain objects being consistently connected with each other. However, he maintained that causality is a psychological belief rather than a logical necessity for knowledge. Despite his skepticism, Hume's work had a profound impact on philosophy, particularly on Immanuel Kant, who was prompted to respond to Hume's challenge regarding causality. Hume's contributions extended beyond philosophy to include economics, history, and literature. He died in 1776, leaving behind a legacy that influenced subsequent generations of thinkers. b) his philosophy 1. The origin of morality Voy text pg 108 sylla According to the Scottish philosopher David Hume, human actions are primarily driven by motivations and inclinations rather than reason. He argues that ethical conduct is rooted in feelings, which are influenced by pleasure Page 39 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni or pain, rather than rational deliberation. Hume asserts that reason serves as a servant to passions, rather than dictating moral behavior. He contends that moral rules cannot be derived from reason alone and that morality is discerned through feelings of pleasure or displeasure evoked by virtuous or vicious actions. Hume's perspective challenges traditional theories of natural law, which emphasize the role of reason in identifying moral principles. He particularly undermines the notion of justice as a virtue by questioning its rational foundation. 2. Justice : an artificial virtue Voy text pg 109 sylla According to Hume, while some virtues may be inherent or natural to human beings, others, like justice, are artificial. He argues that genuine virtue arises from natural motives within human nature. However, when it comes to acts of justice, such as repaying a loan, there is no inherent motive derived from human nature to fulfill these obligations. Hume dismisses explanations based on general interest, private interest, or benevolence as inadequate to explain the observance of justice. Therefore, Hume concludes that the sense of justice is not naturally ingrained but rather artificial. However, he clarifies that this artificiality does not imply arbitrariness. Instead, he suggests that the rules of justice are inventions of the human mind, but they are nevertheless necessary and self-evident. Despite their human origin, these rules can be considered "natural" in the sense that they are common to the human species and indispensable to human society. Thus, while Hume accepts the term "natural" to describe these rules, he does so in a restricted sense, emphasizing their human origin and necessity rather than their imposition by a natural law. 3. The origin of justice and property Voy text pg 110-111 sylla Hume explores the origins and nature of justice, addressing two key questions: how are the rules of justice established, and why do we feel morally obligated to obey them?  He argues that the rules of justice are not inherent in human nature but are instead established through human conventions to address the inherent limitations and disadvantages of human society.  These limitations include selfishness, limited generosity, and the scarcity of external goods. The establishment of justice aims to mitigate these shortcomings and ensure peaceful coexistence in society. The sense of justice arises from mutual agreements among members of society to respect each other's possessions and rights.  These agreements, based on common interest and mutual understanding, give rise to concepts of property, right, and obligation. Justice, therefore, emerges from human conventions designed to promote social stability and individual security. Hume further examines why we attribute virtue to justice and vice to injustice.  He suggests that while self-interest initially motivates individuals to adhere to the rules of justice, a sense of moral approval accompanies virtuous behavior due to sympathy with the public interest. Over time, this sympathy for the public interest develops through societal evolution, education, and political influence. Ultimately, Hume concludes that while the establishment of justice is rooted in self-interest and human convention, the moral obligation to uphold these rules arises naturally from a sense of moral approval associated with actions that promote peace and social harmony. Thus, justice has both an artificial origin, rooted in human convention, and a moral foundation, based on the pleasure derived from actions that contribute to the common good. 4. The three natural laws Voy text pg 113-114 sylla Hume outlines three fundamental laws of nature: the stability of possessions, the transfer of property by consent, and the obligation to keep promises. The stability of possessions ensures peace in society but can lead to unequal distribution. The second law allows property transfer through consent, facilitating exchanges to overcome distribution Page 40 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni disparities. However, this law doesn't address future exchanges or non-existing products, necessitating a system of trust based on promises, forming the third law. Hume emphasizes that peace and security depend on adhering to these laws, which derive from human conduct rather than innate principles. Justice, as a result, is not a natural virtue but an artificial one, crafted by society to regulate human interactions and satisfy underlying passions in a refined manner. 5. The origin of government Voy text pg 114-115 sylla Hume, like Hobbes, argues that justice has a conventional rather than a natural origin. However, while Hobbes links justice to the establishment of the state, Hume posits that justice precedes government but follows societal living. He asserts that societies cannot be sustained without adherence to three fundamental laws of justice, which predate government and impose obligations independently of civil magistrates. Questioning the necessity of government, Hume contends that its purpose is to counteract human weaknesses, such as the tendency to prioritize immediate desires over societal order. Government ensures impartiality in justice enforcement and facilitates decisions on common interests. However, Hume maintains that government is not universally essential and emphasizes its derivative nature from societal needs. While acknowledging the benefits of government, Hume asserts that there are limits to obedience. He argues for the right of resistance when a government becomes oppressive, as its authority should align with the protection of property and security. Hume rejects the notion of government legitimacy based on a social contract theory, highlighting the absence of explicit consent from citizens. Voy text pg 116 – 117 sylla Bien sûr. Hume's critique of the social contract theory delves into the practicality and validity of such an abstract concept. He argues that confirming the existence of a social contract is nearly impossible, as there is no tangible evidence or memory of individuals explicitly agreeing to such an arrangement. Moreover, he finds the idea that residence in a state implies implicit consent to be highly theoretical and unrealistic. For example, he questions whether a peasant, lacking resources and influence, would genuinely choose to leave their country due to disagreement with its government. Hume illustrates this point by likening the lack of choice in such a situation to a person forcibly taken aboard a ship while sleeping, who cannot realistically refuse the authority of the captain without risking their own life. Furthermore, Hume asserts that the obligation to obey the government is not rooted in a contractual promise, as Locke and others have suggested, but rather in the pragmatic necessity of maintaining societal order. He posits that obedience to authority is essential for the functioning of society, as without it, chaos would ensue, rendering communal living impossible. This perspective aligns with Hume's broader philosophy, which emphasizes the role of self-interest and societal utility in shaping human behavior. In contrast to Locke's conception of the state as a protector of natural rights, Hume maintains that the primary purpose of government is to facilitate peaceful coexistence and safeguard property. He rejects the traditional notion of natural law, arguing that it fails to account for the complexities and realities of human society. Instead, Hume contends that the establishment of government arises from pragmatic concerns rather than adherence to abstract moral principles. Overall, Hume's critique of the social contract theory challenges prevailing notions of natural law and highlights the importance of practical considerations in the organization of society. His perspective underscores the complexity of human behavior and the need to balance individual interests with the collective welfare for the successful functioning of a civil society. “I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ’tis necessary that it shou’d be Page 41 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni observ’d and explain’d; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d by reason”. Hume's critique, famously termed the 'Hume guillotine,' challenges the notion of deriving moral principles from empirical facts. He argues that it is logically flawed to derive an 'ought' from an 'is'—in other words, normative statements cannot be logically deduced from descriptive statements about the world. This critique was later embraced by positivist thinkers like Kelsen, who used it to question natural law theories that purported to derive moral norms from observations of the natural world. While Hume himself did not fully explore the implications of his guillotine, subsequent thinkers like Fuller would later grapple with its implications for legal theory. It's worth noting that Hume does not outright reject the possibility of deriving normative principles from empirical facts but insists that such a derivation requires justification and explanation beyond mere logical deduction. This nuanced understanding suggests that Hume's guillotine serves as a starting point for deeper inquiries into the relationship between facts and norms in philosophy and law. §2 Jeremy Bentham (1748-1832) 1. a few words on him Jeremy Bentham, born in London in 1748, is renowned as a pioneering figure in utilitarianism and legal positivism. Growing up amidst significant political and social upheaval, including the American and French Revolutions and the Industrial Revolution, Bentham studied law at Oxford and Lincoln's Inn, where he critiqued the traditionalist views of William Blackstone. Despite initially practicing law, Bentham turned to writing and advocacy for legal reforms after encountering the works of Hume and Beccaria. His ideas gained prominence through the advocacy of Swiss thinker Etienne Dumont, leading to the publication of his influential work "The Theory of Legislation" in 1840, which introduced utilitarian principles to English-speaking audiences. Bentham's innovations extended beyond legal theory to practical designs, such as the Panopticon—a model for institutions requiring constant surveillance, including prisons. In his seminal work "Introduction to the Principles of Morals and Legislation" (1789), he articulated the principles of utility and the "greatest happiness of the greatest number," introducing terms like "international" and "codification" and significantly influencing fields ranging from ethics to political theory. Recognized for his contributions to liberty and enlightenment, Bentham was granted French nationality in 1792 for his writings advocating for freedom and the advancement of knowledge. At his death in 1832, he left behind a vast corpus of writings and a substantial fortune, shaping the thought of subsequent thinkers like John Stuart Mill, who lauded him as a beacon of enlightenment and a transformative force in an era ripe for change. 2. Utilitarianism See text pg 120 sylla Jeremy Bentham's philosophy is grounded in the idea that human behavior, like nature, can be scientifically understood through the pursuit of pleasure and avoidance of pain. Drawing from empiricist predecessors like Locke and Hume, Bentham develops a theory known as psychological hedonism, asserting that all human thought and action stem from the desire for pleasure and the aversion to pain. Bentham's utilitarianism, although influenced by earlier thinkers like Cesare Beccaria, represents a systematic and secular approach, emphasizing the principle of utility as the sole moral guide for both public and private conduct. He advocates for "the greatest happiness for the greatest number," wherein the morality of an action is determined solely by its ability to maximize overall happiness. However, critics argue that this approach may neglect the interests of minorities, despite Bentham's assertion that basic guarantees should be provided to all individuals. Bentham's utilitarian framework extends to political and legal spheres, advocating for representative democracy to ensure the consideration of everyone's utility. He opposes the death penalty, categorizes offenses based on harm Page 42 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni caused, and criticizes laws criminalizing homosexuality. Additionally, he supports universal suffrage, women's rights, abolition of slavery, and animal rights. In addition to utility, Bentham highlights subsidiary political goals such as security, subsistence, abundance, and equality. He believes that a legal system grounded in utility will gradually promote greater equality while endorsing a laissez-faire economic policy. Bentham identifies England's social problems as stemming from economic control by the landed gentry and an outdated legal system, advocating for substantial reforms and earning the label of a "radical philosopher." 3.Common law and legal certainty Taking the famous jurist Blackstone as the target of his criticism, Bentham delivered a full-scale attack on the attachment to the legal tradition and, more specifically, to the common law, which he considered fundamentally contrary to legal security. The English jurist considered that the misery of the people was attributable to society and its structure, which benefited certain classes and was maintained by certain myths that should be denounced. Among the means of oppression of the people, he counted the common law, which he accused of being inaccessible and of maintaining the Blackstonian myth of the absence of creative power of judges. He did not hesitate to write a letter to the citizens of the new American state to warn them: "Yes, my friends, if you love each other, if you value your security, close your door on the Common Law as you would on the plague. Leave us the sad privilege of being governed by this web of sham, this gang of lawyers (...). Never forget this lesson: wherever the Common Law has come, security has gone”. According to the him, the primary objective of laws is to ensure security, which is essential for civilization. Laws protect individuals' expectations of pleasure and prevent pain by ensuring that events governed by the law align with these expectations. This principle of security necessitates clear, coherent, and consistently applied laws. Bentham advocates for a literal interpretation of laws, even if they are obscure or inconsistent, to uphold certainty in their application. Furthermore, laws must be known to those they govern. Promulgation involves more than mere publication; it requires presenting laws to people's minds, ensuring they are remembered, and providing opportunities for consultation. Ideally, laws should be ingrained in the public consciousness, becoming the logic of the people and influencing moral conduct. The author suggests various methods for achieving this, including teaching in schools, public readings in churches, and posting in public spaces like shows and markets. 4. Nattural law and positive law See text pg 122 sylla Jeremy Bentham, known as a pioneer of utilitarianism and legal positivism, challenged prevailing concepts such as natural rights and the social contract. Despite his adherence to the common law tradition, he diverged significantly from his predecessors on these matters, particularly from thinkers like Locke and Rousseau. Bentham's rejection of natural rights stemmed from his utilitarian worldview, which held that human behavior is governed by the pursuit of pleasure and the avoidance of pain. He argued that the existence of absolute natural rights would lead to chaos and anarchy unless they were subject to the principle of utility. According to Bentham, rights derive from positive law enacted by public authorities and must be assessed based on their utility to society. He criticized the notion of natural rights as "imaginary" and advocated for laws grounded in rational utility rather than abstract principles. Similarly, Bentham dismissed the social contract theory as a fictitious and unnecessary concept. He viewed the idea of a social contract as misleading, obscuring the violent origins of government and the true basis of obedience to authority. According to Bentham, obedience to government arises from habit rather than any explicit contract or agreement among individuals. He argued that without government, society would lack essential elements such as property rights, legal security, and freedom. Page 43 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Despite his skepticism towards natural rights and the social contract, Bentham emphasized the importance of transparency and accountability in government. He advocated for mechanisms such as freedom of the press and public oversight to ensure that government actions align with the interests of the people. Bentham's ideas laid the groundwork for legal positivism, which rejects the notion of inherent moral principles or natural law in favor of laws derived from human legislation and grounded in utility. In summary, Bentham's rejection of natural rights and the social contract reflects his utilitarian philosophy, which prioritizes the principle of utility and the greatest happiness for the greatest number. His views on the role of government and the basis of obedience have had a lasting impact on legal theory, contributing to the development of legal positivism and the emphasis on empirical analysis in jurisprudence. Chapter 2. The transition: Kant and Rousseau Two authors contributed to the transition between natural law and legal positivism: Rousseau and Kant, each in their own way. This was probably not their intention, since they both admit the existence of natural law and do not form any particular criticism of jusnaturalist theories. However, both emphasise the (quasi)total experience of the social contract: neither of them has any right of resistance against public authority, even if it infringes the natural rights of the original co-contractors. They are therefore on the side of Hobbes rather than Locke, but at a time when this type of position will receive a particular echo, that is, on the eve of the emergence of legal positivism (which will be the subject of the next chapter). If Rousseau is more radical than Kant, in that the former considers any disagreement with the laws adopted as a misinterpretation of the general will, whereas the latter at least admits the right to express such disagreement, Kant still contributes in a double capacity to favour the transition from jusnaturalism to legal positivism: on the one hand, by presenting natural law as a provisional, imperfect law whereas the law adopted in the civil state is complete, finished ; on the other hand, by clearly distinguishing the registers of morality and law (which constitutes one of the main theses of legal positivism). §1. Jean-Jacques Rousseau (1712-1778) Jean-Jacques Rousseau, a multifaceted figure of the Enlightenment era, was a pedagogue, philosopher, writer, and influential thinker of his time. Born in Geneva in 1712, Rousseau spent much of his life in France, where he became associated with prominent intellectuals like Denis Diderot. He is known for his diverse contributions to philosophy, literature, and political theory. In 1755, Rousseau published his essay "Discourse on the Origin and Basis of Inequality Among Men," in response to an essay competition by the Academy of Dijon. This work aimed to explore the origins of inequality and its relation to natural law, reflecting Rousseau's critique of societal structures. He continued to challenge social norms by adopting unconventional attire and lifestyle choices. Rousseau's literary masterpiece, "Julie, or the New Heloise," published in 1761, emphasized sentiment over reason and contributed to the Romantic movement. This novel portrayed the supremacy of emotions and intuition in human experience, departing from the rationalist trends of the Enlightenment. In 1762, Rousseau published two influential works: "Emile, or On Education," a treatise on educational philosophy, and "The Social Contract," which introduced the concept of the "general will." The latter proposed a collective decision-making process based on the common good, which influenced revolutionary thought and later political theory. Controversy surrounded Rousseau's writings, leading him to flee France and seek refuge in England. His tumultuous life and unorthodox ideas earned him both admiration and criticism from contemporaries. Rousseau's death in 1778 marked the passing of a significant figure whose legacy continues to shape philosophical discourse. Despite Rousseau's profound influence, his ideas were not always systematically coherent, particularly regarding natural law. His thought evolved over time, leading to inconsistencies between his earlier and later works. Nonetheless, Rousseau's contributions to philosophy and political theory remain enduring and continue to inspire intellectual inquiry. Page 44 sur 73