Natural Law Syllabus (2023-2024) PDF

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 mechani...

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  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 1. The state of nature and the good savage The question posed by the Dijon Academy was therefore to know the origin of inequality among men and whether it was authorised by natural law. For Rousseau, the source of this inequality cannot be determined unless we begin by knowing men themselves, but he laments, this knowledge is both the "most useful and the least advanced of all human knowledge". And for good reason: "as all the progress of the human species is constantly moving away from its primitive state, the more we accumulate new knowledge, the more we deprive ourselves of the means of acquiring the most important of all, and that it is in a sense by dint of studying man that we have put ourselves in no condition to know him". Yet it is in this evolution of the human species that the first cause of inequality between men lies: while everyone agrees that they were naturally "as equal to each other as were the animals of each species", some have "perfected or deteriorated, and having acquired various good or bad qualities which were not inherent in their nature, the others remained longer in their original state. Nevertheless, it remains very difficult to carry out the research that would allow us to "disentangle what is original and what is artificial in the present nature of man". Yet it is precisely "this ignorance of man's nature that casts so much uncertainty and obscurity on the true definition of natural law". Since the idea of natural law is clearly an idea relating to the nature of man, it is from this nature that the principles of this science must be deduced. And Rousseau is surprised by the differences of opinion regarding natural law: (see text pg 126) Rousseau's critique of natural law theories, influenced by his Discourse on the Origin and Basis of Inequality Among Men, challenges both Roman and modern conceptions. He rejects the idea that natural law pertains solely to rational beings and argues for a simpler, more intuitive understanding accessible to all. In Rousseau's view, for natural law to be meaningful, it must resonate with the immediate instincts of human nature and speak directly through the voice of nature itself. However, attempts to define a state of nature often fail, as scholars project civilized behaviors onto a concept meant to represent pre-civilized existence. Rousseau emphasizes the need to understand the natural man, a primitive being whose simplicity is unmarred by the complexities of society. Natural man, according to Rousseau, lives in a state of peaceful simplicity, devoid of the vices and virtues that arise from societal interaction. He is not inherently sociable but is guided by basic needs and instincts. Rousseau aligns with Hobbes in recognizing the equality of capacities in the state of nature and the fundamental principle of self-preservation as the basis of natural law. However, Rousseau diverges from Hobbes by asserting that the state of nature is not inherently hostile. He introduces the concept of pity, a pre-reflective virtue that moderates self-love and contributes to the preservation of the species. o Unlike Hobbes, who sees society as a necessary evil to mitigate human wickedness, Rousseau suggests that societal progress and the development of reason have led to human misery. o Rousseau's critique extends beyond Hobbes by challenging not only the natural sociability of man but also the notion of reason itself as the source of human suffering. o He contends that societal complexities have corrupted human nature, leading to conflict and misery that were absent in the state of nature. This radical departure from traditional natural law theories underscores Rousseau's unique perspective on human nature and society. 2. Entry into society and the origin of inequality Rousseau then sets out to demonstrate the origin and progress of inequality "in the successive developments of the human mind" and "the different chances that have perfected human reason, by deteriorating the species, made a being wicked by making it sociable, and from such a distant point brought man and the world to the point where we see them". Among the causes of human decay, property figures prominently: "The first man who, having enclosed a piece of land, said, 'This is mine,' and found people simple enough to believe him, was the true founder of civil society. How many crimes, wars, murders, how many miseries and horrors would have been spared to mankind by the one who, pulling up the stakes or filling in the ditch, would Page 45 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni have cried out to his fellow men: 'Beware of listening to this impostor; you are lost if you forget that the fruits belong to all, and that the land belongs to no one'. Rousseau's critique of Locke's theory of property and social contract is stark. He argues that the appropriation of land by the wealthy led to increasing inequality and societal disorder. As the rich became richer, the poor were driven to desperation, resorting to theft and violence. This breakdown of equality paved the way for the wealthy to establish laws protecting their property, further entrenching inequality and subjugating the majority to labor and misery. According to Rousseau, the establishment of civil society perpetuated this inequality, spreading across the globe and replacing natural law with laws that favored the rich. He highlights the transformation of natural liberty into permanent servitude, where property rights became absolute, and inequality became institutionalized. Rousseau challenges the prevailing Enlightenment notion that scientific and material progress necessarily lead to moral advancement. Instead, he suggests that societal progress, as measured by material wealth and technological development, often exacerbates moral degradation and social inequality. This critique underscores Rousseau's skepticism towards the inherent goodness of human civilization and its institutions, offering a profound reevaluation of the relationship between progress and virtue. 3. The social contract or change of approach In his Discourse on the Origin and Foundations of Inequality among Men, Rousseau emphasised the felicity of the original state of nature, the moral decay and inequality that result from the development of reason and language, and their consecration by the emergence of the state as a means for the rich to protect their property. The contrast of Rousseau's positions in his Du contrat social is all the more striking: (voy text pg 130) The state of nature is described in a much less positive way: man is nothing more than a stupid and narrow-minded animal, and if he has some advantages, they are clearly less beneficial than those provided by the civil state. Happiness, this time, is clearly on the side of the civil state that transforms this animal into an intelligent being and a man. Another sign of the evolution of Rousseau's conception is that only the first principle of natural law is still mentioned, namely self-preservation. o Mercy, which Rousseau made so much of in the Discourse as a principle enabling the preservation of the human species, is not even mentioned anymore. It is only in the civil state that man "who hitherto had looked only to himself, is forced to act on dʼautres principes" and that his actions become moral. Reason, accused of all evils in the Discourse, now allows man to elevate his soul (with a small reservation about the abuses of his new condition). The only other significant passage on natural law confirms this development: (voy text pg131) The existence of natural law is reiterated, but this time it is attributed to God and natural justice emanates 'from reason alone’. However, this concession to the older authors is quickly relativized: in the absence of a natural sanction, natural laws are useless because they have no effectiveness. In order to be accepted, this universal justice must be reciprocal, and this reciprocity is only possible if it is established - and its violation sanctioned - by human laws. The civil state, which results from the social contract, is therefore both desirable and necessary, and it is this thesis that Rousseau sets out to demonstrate in his essay The Social Contract. 4. The social contract Voy text pg 132-133 Rousseau delves into the concept of the social contract, exploring the transition from the state of nature to civil society and the legitimacy of this transformation. He acknowledges his earlier hypothesis about the state of nature's hypothetical nature but shifts his focus to the legitimacy of civil society's emergence. Page 46 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Contrary to natural law theories, Rousseau argues that society's organization stems from conventions rather than inherent laws of nature. He suggests that partnership among individuals becomes necessary as humanity evolves to avoid perishing in a changing environment. Drawing inspiration from Hobbes, Rousseau emphasizes the need for association to balance security and individual freedom. The social contract, Rousseau proposes, transforms individual co-contractors into citizens, where each person contributes their power to the collective entity in exchange for protection and participation in the general will. This agreement necessitates the relinquishment of all natural rights, transferring sovereignty to the community and establishing the general will as the supreme law. Rousseau asserts the absolute power of the Sovereign (the people), which can change laws and even override the social contract if necessary. Although consent is required for laws, Rousseau acknowledges the challenges posed by minority opinions and emphasizes the importance of aligning individual wills with the general will : 'The people always want the good, but of themselves they do not always see it', and while the 'general will is always right', the 'judgement that guides it is not always enlightened' Paradoxically, while he wished to defend a theory of the social contract that would, unlike Hobbes, save liberty, and while he never ceased to promote tolerance and freedom of conscience, Rousseau would later be accused of having offered a solid foundation to totalitarian conceptions. §2. Immanuel Kant (1724-1804) Kant, often compared to Plato or Aristotle, sought to establish a moral foundation that transcended the relativism of Enlightenment thought while upholding individual freedom. Born in 1724 in Königsberg, Kant led a disciplined life of scholarship and teaching at the local university. Despite never leaving his hometown, he possessed encyclopedic knowledge and a remarkable memory. Acknowledging his intellectual debt to Rousseau, Kant emphasized the importance of respecting all individuals and not despising ignorance. Despite his studious demeanor, Kant enjoyed billiards and social gatherings, demonstrating a multifaceted personality. His seminal work, "Critique of Pure Reason" (1781), marked a significant milestone in philosophy, followed by "Critique of Practical Reason" (1788) and "Critique of Judgment" (1790). In "Metaphysics of Morals" (1797), Kant expounded his theory of law, stressing the centrality of the subject in knowledge acquisition. Kant's philosophy reconciles rationalism and empiricism, prompted by Hume's critique of causality. He initiated a Copernican revolution by asserting that our understanding shapes our perception of the world, not the other way around. Kant distinguishes between phenomena, the objects of sensory experience, and noumena, things-in- themselves inaccessible to human knowledge. By limiting human knowledge to phenomena, Kant reconciles natural causality with human freedom, positing that while necessity applies to phenomena, freedom pertains to noumena. This framework allows for the coexistence of two kinds of causality without contradiction. 1. On law and morality See text pg 136-37 syllabus Kant's moral philosophy centers on the purity of intention, emphasizing the universalizability of motives as a test for moral actions. He proposes the categorical imperative: "Act only according to that maxim whereby you can at the same time will that it should become a universal law." This criterion ensures that intentions are moral only if they can be applied universally. In contrast, law regulates external actions rather than internal intentions. Morality governs the internal forum of the will, while law governs the external forum of actions. Kant's differentiation of these domains is crucial for the autonomization of law and the development of positivist theories. Law, according to Kant, aims to facilitate the agreement between individuals' wills through general provisions, defining law as "the conditions under which the will of one can coexist with that of another according to a general law of freedom." Page 47 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Although Kant's distinction between law and morality lays the groundwork for legal positivism, he does not fully embrace it. Kant rejects defining law solely based on positive laws of a specific time and place, recognizing a normative core inherent to law. This core is tied to the purpose of law, which is to uphold human dignity and ensure the harmonious coexistence of free individuals. 2. On natural law and society See text pg 138-139 In this excerpt, Kant distinguishes between natural law, rooted in a priori rational principles, and positive law, which originates from the will of the legislator. He emphasizes that positive law should be associated with civil law, while natural law remains akin to private law in the absence of public authority validation. Although modern terminology differentiates between private and public law within positive law, Kant's terminology differs. For Kant, the innate natural right of individuals is the freedom to act in accordance with others' freedom under a general law. o In the state of nature, individuals possess rights to property and self-defense, but these rights lack definitive legal guarantee until entering civil society. o Kant posits a principle of private law that obliges individuals to transition from the state of nature to civil society, ensuring distributive justice and legal protection for property. Kant's conception of natural law as provisional underscores its role as a precursor to positive law and civil society, rather than condemning it outright. He views natural law as incomplete, requiring supplementation by positive law to achieve justice and legal certainty. In another text, "Perpetual Peace," Kant extends this idea to international relations, advocating for a federation of republics to establish common laws and resolve conflicts peacefully. He even suggests a natural right of asylum, allowing individuals to seek protection from states outside their nationality. 3. On the social contract and the sovereign See text pg 140-141 Kant's political theory aligns with contractualist ideas, particularly those of Hobbes and Rousseau, regarding the formation of a sovereign state through an original social contract. In Kant's view, individuals both constitute the sovereign and are subject to the state, leading to a form of self-obedience when adhering to laws. However, this autonomy does not grant individuals the right to disobey laws, as only the state possesses coercive power.  Unlike Hobbes, Kant allows for criticism of the sovereign, acknowledging the possibility of state injustice resulting from ignorance or error. o He asserts that citizens should be authorized to bring attention to such injustices, primarily through freedom of expression, particularly through the written press. o However, Kant maintains that there is no legal right of resistance against the sovereign, rejecting the idea of natural law-based disobedience, contrary to Locke's position. Although Kant acknowledges the existence of natural law and sees positive law as perfectible in aligning with natural law's principles, he offers an unsatisfactory solution regarding challenging state decisions. His rejection of a right of resistance signifies a shift towards legal positivism, which will be explored further in subsequent chapters. Chapter 3. Legal Positivism The current of legal positivism is too important to be summarised in a few lines. We will limit ourselves to mentioning three major names (in addition to the roots of the movement, already mentioned): John Austin, who delivered the first theory of legal positivism, Hans Kelsen and Herbert Hart, who are, at least for continental lawyers, the two best- known figures of the 20th century. Page 48 sur 73