QUESTIONS TO CONSIDER What is law How do we define GOOD & EVIL? Who should we entrust to make the law? Should we obey the law?
PLATO (428-348BCE) Used question and answers to explain law Did not see justice in society- saw that law was beneficial to the stronger. A just person represented a just society A just society is one where everyone performs to the best of their ability and not everyone was equal. Believed the best ruler would be a philosopher king- selected based on merit Believed that society should exist without law because it was too general, open to interpretation, and failed to observe the differences amongst people Plato also realized that rule by a philosopher king was impossible – and rule without one could result in corruption. Final realization- THERE IS A NEED FOR LAW!
ARISTOTLE (384-322BCE) Believed that the goal of justice should be EQUALITY.- “That which is just is equal or fair”. He believed that hardships could be cured through equality and a distribution of resources. Justice therefore was the distribution of wealth- in equal or unequal amounts. Allotment based on merit “worthiness”. He did not believe in an equalitarian society. He believed in MERITOCRACY- individuals are rewarded based on merit. He believed the law should be based on equity- fairness- therefore cases should be looked at on an individual basis and discretion be awarded to the judge. Did believe in obeying the state laws- as the state knows what is best for its citizens. “Whatsoever pleases the sovereign has force of law.”
CICERO (106-43BCE) Opposed Julius Caesar's dictatorship style of leadership. Believed justice, equality, fairness and right should be the basis of law. Law is a “natural force” in the mind and reason of “intelligent men”. This is the standard of justice. Law and justice exist in man and God- both have reason. Collective representation by the state- with common agreement of laws. He believed the people desired participation in the state and therefore law. As such the gov’t had to follow the will of the people in law making. Except if the will of the majority opposed natural law. The gov’t looks after the will of the people so long as they do not pass “evil” laws.
JUSTINIAN (483-565CE) As emperor he established a law code “Justinian’s code” ◦Law has two components: Universal laws of nature (followed by all) ◦ Guaranteed all were BORN FREE Civil law- law specific to certain areas or people. His foundation in natural law resulted in great changes to Roman Laws that were now considered unjust. ◦slavery He is given credit for making law a profession
SAINT AUGUSTINE (354-430CE) His ideas were based on divine law; Good would be rewarded Evil would be punished He believed that when the “city of God” came to earth and God returned with it that “ideal justice” would be achieved. Possible vs. impossible? In God’s place the church had the responsibility to check evil and abuses of power by the state- the church had a “MORAL VETO” if state law violated God’s law.
THOMAS AQUINAS (1225-1274) Aquinas in response to Aristotle’s statement; “Whatsoever pleases the sovereign has force of law.”- stated “It belongs to the law to command and forbid.” Law is a reflection of the common good. Therefore it is the goals of law makers and the law to “lead men to virtue”. Aquinas did not believe that all people were good- but by obeying the law people were “being good”. The law as a moral guide. Aquinas again used natural law as a basis- “good is to be done and pursued and evil is to be avoided”
THOMAS HOBBES (1588-1679) In Leviathan he wrote that people are “solitary, poor, nasty, brutish, and short” Political and social justice would be achieved through security and preservation of order (peace). To accomplish this goal positive law would take precedent over natural law. A superior power, ruler, needed to exist and exert authority over the population- this included the use of any means necessary. Power and law needed to exist in order to regulate relationships between individuals. For justice to occur the individual must surrender their ability to govern themselves to an ultimate ruler- if you surrender your individual rights then you do not have the ability to control the ruler. Hobbes did believe that injustice could/did occur if promises (covenant) were made and then broken.
JOHN LOCKE (1632-1704) One of the great controversies in gov’t and law “individual rights vs. the rights of the collective”. Locke did not believe that the collective was more important than the rights of the individual. Rights of the individual ◦ Life ◦ Liberty ◦ property Natural law emphasized the rights of the individual and that is and should be the foundation of gov’t. Individual security of the person is essential but that does not override the idea that law needs to prevent harm to others. To protect individual rights the state needed controls to restrain its power over the natural rights of the individual. Locke did not believe that these natural rights assumed all were equal- he did believe in the idea of a meritocracy- people had the ability to apply themselves and achieve. Locke did promote the idea that the role of gov’t was and should be to protect the people from “arbitrary acts” that interfere with their freedoms- This idea and his definition of the natural rights of the individual led to the American and French Revolutions.
JEAN-JACQUES ROUSSEAU (1712- 1778) Rousseau’s works include- Social Contract & Origin of Inequality. One criticizes society and the second defines what is “good and just”. “Man is born free, and everywhere else he is in chains.” Promotion of the individual has led to corruption and self interest over good for all. He recognized the need for state government; to prevent corruption there should be a contract between the state and citizens. The state would promote the will of the people and if the will of the people changes then they have the ability to change the gov’t. The key question- What is meant by the “will of the people”.
JEREMY BENTHAM (1748-1832) UTILITARIANISM- laws based on the realistic and practical rather than the Idealistic. Utility/expedience was the basis upon which to measure law – dismissing natural law all together. Law should be measured on the benefit to the community and individuals in the community. Law and morality are separate- law is to control society. Laws- “greatest good for the greatest number”
JOHN AUSTIN (1790-1859) Law and government – the main goal is “the greatest possible advancement of human happiness.” Austin considered LAW and JUSTICE as separate entities. Positive law is the measure for what is just /unjust- therefore positive law is just. He saw morality and divine law as subjective elements in society. Laws function is based in its intent and quality. The extent to which a person violates the norms of society determines what is just/unjust. Morals and ethics removed.
JOHN STUART MILL (1806-1873) Law should be useful and should function as such in society. “Actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness.” Emotion was not his central focus- instead he focused on; ◦Art ◦Music ◦Literature ◦Intellect ◦Helping others Happiness was based on the well being of others over oneself. Happiness is happiness for all.