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Philosophy of Law -1

Ethics, Hobbes, Locke, Common law theory

ethics philososphical discipline concerned with the study of morals
deontological universal – standards for right or wrong are to be found as a universal – actions are good or bad of themselves
Kant Categorical imperative.
Categorical imperative The only right action in a situation is the universally right action. The perfect moral agent is perfectly rational
Kant and Enlightenments view of Rationality Rationality is universal – there is only one way the world operates.
Limitations of Deontological People are not universally objective. No universal rationality. Rationality is context and historic depending. Projectionist. Does not handle conflicts Does not consider context - Context adverse
Consequentialist (teleological) study of goals, ends and consequences of actions. Eg utilitarianism is a school of teleologicalism
Limitations of Consequentialism Who defines good? Any attempt to define the greater outcome – concept of good is not universally definable. Consequentialist arguments can be used to defend ethically questionable actions – they were for the greater good
Thomas Hobbes Leviathan – 1651 English Civil war. Biblical (John Revelations) monster that comes out of the abyss and is unstoppable
(Hobbes) Leviathan individuals have no power against the leviathan
Hobbes theoretical premise “There exists a state of nature” – thought experiment – like Plato’s cave.
(Hobbes) State of Nature of humans Violent angry animals. Individuals – self preservation Uncontrolled pursuit of individual interests = solitary, poor, brutish and short life.
(Hobbes) Society at war with itself States of nature is such that in nature self preservation is the highest priority. State of natural law – there are no interpersonal obligations. Uncontrolled pursuit of ungoverned desires leads to chaos
(Hobbes) Leviathan There is a necessity of a hegemonic ruler, to protect people against themselves. The Leviathan. Private power. The control of the Leviathan is preferable to the unleashing of individual will and chaos.
John Locke wrote when? Locke wrote in 1690
Locke's political philosophy Rights are intrinsically vested in the individual – Inherent Fundamental Individual Rights.
(Locke) Three Fundamental Rights 1 - Life 2 - Liberty 3 - Property
Locke religion Any attempt by the state to breach these individual rights is a violation of natural law.
(Locke) Breach of individual rights Any attempt by the state to breach these individual rights is a violation of natural law.
Locke - main points 1. First West philosopher to raise fundamental rights 2. Christian founding 3. State of Nature - All ind are equal 3 rights 4. Property is specific 5. Social contract establishes state to protect the three rights
Locke - Individualism Emphasis on individualism as a positive feature of humanity.
Social Contract While Hobbes did not discuss Social Contract Theory Locke and Hobbes are viewed as fathers of.
Fundamental elements of Liberalism 1. Autonomous self determined individualism 2. Individual rights 3. Public Private dichotomy (2 spheres) 4. Rule of law (as opposed to rule of man) 5. Idea of equality (formal equality) 6. Legal Formalism
3 types of Liberalism 'Laissez-faire’ – John Stuart Mill – state needs to step back – hands off. Utilitarian liberalism – Bentham – greatest good for the greatest number Welfare liberalism – create equality – Socialist states theoretically examples of Welfare liberalism.
(Liberalism) The Enlightenment Removal of religious and metaphysical foundations – society becomes secular Rise of scientific law – science explains
Limitations of Liberalism
Limitations of Liberalism 1. Autonomous ... Autonomous self determined individualism Is not universal
Limitations of Liberalism 2. Universal ... Universal Individual rights Suppresses cultural diversity
Limitations of Liberalism 3. Public / ... Public / Private dichotomy (2 spheres) Spheres is not universal nor fixed
Limitations of Liberalism 4. Rule of law As opposed to rule of man
Limitations of Liberalism 5. Equality Formal equality Ignores substantive equality and can even impede it.
Limitations of Liberalism 6. Legal Formalism If law is self contained – then everything else (context for example) is excluded.
Classical common law theory Fundamental principles Judges did not make law It was time immemorial Accumulated social and political custom – applied since time immemorial Anything pre-Richard the 1st - 6th July 1189 Natural Law Collective Wisdom – and usage Superior to statutes
(Classical common law theory) Unwritten Lex non scripta – origin of law is not found in writing
Common law is the result ... Common law result of accumulated social and political wisdom applied since time immemorial
Common law - unwritten Does not have origin in writing
Common law - Declaratory Declaratory theory – judges declare the law they do not create
Classical common law - reasoning Artificial reasoning In order to learn common law need to develop artificial reasoning
'Fathers' of the common law Edward Cooke Hale Blackstone
Cooke - Origin of common law Time immemorial - Origin of comm. Law – pre-Saxons, pre-Roman… Arthurian times – has survived unchanged
Cooke - Authority of law People should be deferential and subservient to the law as it has remained unchanged for all this time.
Cooke - Reasoning Natural reason – can only span the reason and wisdom of an individual lifetime. Wisdom of the ages – is time immemorial
Cooke - Change Degenerative vs restorative Any change to time immemorial law is a degenerative change – does not need to be follow and requires regenerative action
Hale - Origin It is pointless to try to talk of an origin. Common law is, but we cannot say when. Tradition cannot be frozen in a specific time.
Hale - Authority of law Finds its authority – because it is timeless it has power and – is greater than statutes – which are recent.
Hale - Reasoning People of different backgrounds and cultures reasoning will lead to different Thus we need a specific training o determine what the common law is and ought to be.
Hale - Change The Argonaut individual parts or components of have been replaced and repaired so many times that nothing original remains – but it is still the same ship.
Hale - Change Like cellular change of the body
Blackstone - Origin / Authority Declaratory theory Judges are the leading oracles of the law Not individual decisions – but totality of judicial decisions Moves from customs to the collective wisdom of the law
Blackstone - Change Any judgment that misrepresents the law simply isn't law.
How does classical common law theory deal with the process of legal change Problem is if law is seen as unchanging and judges just interpret – how can it change – how does it change?
Change that occurs ... Change that occurs is seen as process of artificial reasoning by the collective body of precedents – the judiciary
Cooke Change is only degenerative or in response to correct degenration regenerative
Blackstone No change – any misinterpretation of law is not actually law
Hale The Argonaut individual parts or components of have been replaced and repaired so many times that nothing original remains – but it is still the same ship.
Problem with change in common law theory . Importance of question is about continuity of legal system. If everything changes – can we still meaningfully talk of the same system? If there is a break when does one system end and the other begin.
Created by: Elmosonfire