Download Law as a philosophical notion

Law as a philosophical notion
What is law?
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„If you ask me, I do not know; if you do not
ask me, I know it.“ (St. Augustine)
Law is a social phenomenon – only human
beings need law
Law is linked with power – ruler can
legitimize his power by law
Laws of nature and social rules
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Laws of nature represents causal
connection, they can be verified, they can be
true or false
Legal norms do not need to be true, but they
must be valid
Laws of nature represents „Is“, legal norms
represents „Ought“
Relationship between law and morality I.
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First view – law (P)
must be in accord
with morality (M)
because morality
dictates the actual
content of law
Relationship between law and morality II.
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Second view – law
(P) and morality (M)
have independent
spheres of action,
but morality is
higher and therefore
base for law
Relationship between law and morality III.
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Third view - law (P)
and morality (M)
intersect. Intersection
represents common
base of law and
morality, outer parts
represent exclusive
spheres of law and
morality
Relationship between law and morality IV.
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Fourth view - law (P)
and morality (M) have
their exclusive
spheres, both solve
the question of
validity of norms
inside their own
system
Natural law theory
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Idea based more on belief than empirical and
rational knowledge
Dualistic approach – natural and positive law
Natural law is a body of moral principles that
is common to all humankind. Natural law is
therefore distinguished from - and provides a
standard for - positive law, the formal legal
enactments of a particular society
Natural law
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is not made by human beings;
is based on the structure of reality itself;
is the same for all human beings and at all times;
is an unchanging rule or pattern which is there for
human beings to discover;
is the naturally knowable moral law;
is a means by which human beings can rationally
guide themselves to their good.
Sources of natural law
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Nature – ancient world
God – middle ages
Human reason - enlightenment
The first rule of natural law is a formulation
based upon the notion of the good and is
stated in the following way: „The good must
be done, and evil must be avoided“.
History of natural law I.
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Greek philosophy emphasized the distinction between "nature„
(physis) on the one hand and "law„ (nomos) on the other.
Aristotle notes that, aside from the "particular" laws that each
people has set up for itself, there is a "common" law that is
according to nature.
It is this that Sophocles' Antigone clearly means when she says
that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature.
For Cicero, natural law obliges us to contribute to the general
good of the larger society. The purpose of positive laws is to
provide for "the safety of citizens, the preservation of states, and
the tranquility and happiness of human life." In this view, "wicked
and unjust statutes" are "anything but 'laws,'" because "in the very
definition of the term 'law' there inheres the idea and principle of
choosing what is just and true.
History of natural law II.
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St. Thomas Aquinas defined natural law as the rational
creature's participation in the eternal law.
Yet, since human reason could not fully comprehend the
Eternal law, it needed to be supplemented by revealed Divine
law.
Meanwhile, Aquinas taught that all human or positive laws were
to be judged by their conformity to the natural law.
An unjust law is not a law, in the full sense of the word. It
retains merely the 'appearance' of law insofar as it is duly
constituted and enforced in the same way a just law is, but is
itself a 'perversion of law.
History of natural law III.
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Hugo Grotius based his philosophy of international law
on natural law.
In particular, his writings on freedom of the seas and just
war theory directly appealed to natural law.
About natural law itself, he wrote that "even the will of an
omnipotent being cannot change or abrogate" natural
law, which "would maintain its objective validity even if we
should assume the impossible, that there is no God or
that he does not care for human affairs."
History of natural law IV.
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John Locke incorporated natural law into many of his
theories and philosophy, especially in Two Treatises of
Government.
If the ruler went against natural law and failed to protect
"life, liberty, and property," people could justifiably
overthrow the existing state and create a new one.
While Locke spoke in the language of natural law, the
content of this law was by and large protective of natural
rights, and it was this language that later liberal thinkers
preferred.
History of natural law V.
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John Finnis is a legal philosopher and author of Natural Law
and Natural Rights (1980), a seminal contribution to the
philosophy of law and a restatement of natural law doctrine.
Finnis defends the following basic human goods: life,
knowledge, play, aesthetic experience, sociability (friendship),
practical reasonableness, and religion, the last being defined as
"all those beliefs that can be called matters of ultimate concern;
questions about the point of human existence."
Finnis's requirement that practical reason requires "respect for
every basic value in every act" is intended both to rule out
consequentialism in ethics and also to support the moral
viewpoint of the Catholic Church.
Importance of natural law
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The influence of natural law depends on how many
people believe this idea and act in accordance with
this belief
Theory of social contract
Concept of natural human rights and freedoms
Content of natural law (For instance, slavery was
once accepted as normal and natural. We now know
that slavery violates the natural law.)
Legal positivism
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The word "positivism" itself derives from the Latin
root positus, which means to posit, postulate, or
firmly affix the existence of something
States that there is no inherent or necessary
connection between the validity conditions of law
and ethics or morality
The law is seen as being separated from moral and
ethical values, and it simply sees the law is posited
by lawmakers, who are humans
History of legal positivism I.
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Jeremy Bentham - philosopher, jurist, and social reformer. He
is regarded as the founder of modern utilitarianism.
Bentham's An Introduction to the Principles of Morals and
Legislation focuses on the principle of utility and how this
view of morality ties into legislative practices. His principle of
utility regards "good" as that which produces the greatest
amount of pleasure and the minimum amount of pain and "evil"
as that which produces the most pain without the pleasure.
This concept of pleasure and pain is defined by Bentham as
physical as well as spiritual. Bentham writes about this principle
as it manifests itself within the legislation of a society.
History of legal positivism II.
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John Austin considered the law as commands from
a sovereign that are enforced by threat of sanction.
In determining 'a sovereign', Austin recognized it is
one whom society obeys habitually. This sovereign
can be a single person or a collective sovereign such
as Parliament, with a number of individuals, with
each having various authoritative powers.
Austin was greatly influenced in his philosophy by
Jeremy Bentham.
Hans Kelsen
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Kelsen is considered one of the preeminent jurists of the 20th century
and has been highly influential among scholars of jurisprudence.
Kelsen's Pure Theory of Law aims to describe law as a hierarchy of
norms which are also binding norms while at the same time refusing,
itself, to evaluate those norms. That is, 'legal science' is to be
separated from 'legal politics'.
Central to the theory is the notion of a 'basic norm (Grundnorm)‚ - a
hypothetical norm, presupposed by the theory, from which in a
hierarchy all 'lower' norms in a legal system, beginning with
constitution, are understood to derive their authority or 'bindingness'.
Kelsen's theory has been developed by scholars in his homelands,
notably the Vienna School in Austria and the Brno School led by
František Weyr in Czechoslovakia.
Herbert L. A. Hart
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A critique of John Austin's theory that law is the
command of the sovereign backed by the threat of
punishment.
A distinction between primary and secondary legal
rules, where a primary rule governs conduct and a
secondary rule allows of the creation, alteration, or
extinction of primary rules.
The idea of the Rule of Recognition, a social rule that
differentiated between those norms that have the
authority of law and those that do not. Hart viewed the
concept of rule of recognition as an evolution from
Kelsen's Grundnorm.
Sociological jurisprudence
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Law must be studied in its relation with the society
(how it influences law and how the law influences
society)
Sociological jurisprudence is also concerned with the
effects of social phenomena on both the substantive
and procedural aspects of law, as well as on the
legislative, judicial, and other means of forming,
operating, changing, and disrupting the legal order
Law in books – law in action