Philosophy of Law

 Legal theory, jurisprudence  Meaning of the concept of the law, its function and purpose  Not an abstract, impractical notion

School of Thoughts  Natural law  Legal positivism  Normativism  Economic analysis of law

Natural Law  Classical  Modern

Classical Natural Law

Noted Philosophers  Cicero  Thomas Aquinas  Thomas Hobbes  John Locke

General Definition of Natural Law  “The best description of natural law is that it provides a name for the point of intersection between law and morals.” John Finnis, Natural Law and Natural Rights

 Different logic  Determine what is ‘good’ = moral  ≠ what exists

 Certain rights are inherent to human nature and discoverable through reason  Universality

Confusion with Common Law  Common law  ≠ inherent rights  Legal tradition in which certain rights are recognised by judicial decisions

Cicero  “True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting.”  “It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.”

Characteristics  Universality  Immutability

 “God is the author of this law, its promulgator, and its enforcing judge.”  ‘higher’ law  Divinity  Discoverability by reason = natural

 Natural = conform to ‘reason’  Those that don’t conform are regarded as invalid  Cicero’s theory influenced the discussions on natural law for many centuries

 Conflict between the law of nature and the law of man  Transition to the Dark Ages

Thomas Aquinas   Catholic church  Summa Theologiae  Endorsement of the Bible  Conservative view of natural law

4 Categories of Law  Eternal law  Natural law  Divine law  Human law

Natural Law as Law  Law = rules of action declared by one who protects the interests of the community  God defends and protects the universe

 Discoverable by rational beings  Different perspective on ‘rationality’  Conscience

 Natural law is binding  Guidance by nature  Intuition  Good vs. evil  The good is prior to the right

Observations  What isn’t law?  Lex inuista non est lex = an unjust law is not law  Unjust = not conform to natural or divine law

 Unjust law lacks moral authority  = corruption of law  Not obliged to follow

Natural Rights

 Thomas Hobbes  John Locke  Distinction between natural law and natural rights

Thomas Hobbes   Leviathan

 Natural law shows the importance of self preservation  Order and security

 Law and government  Social contract  Surrender our natural freedom to create an orderly society  What human agreed upon in pursuit of self preservation

Justification  Equality → discord  Competition  Distrust  Glory

Law of Nature  19 Laws  Peace  Mutual consent to divest of certain rights = social contract  Respect

 Guardian of the contract is a political sovereign  Unlimited power to punish violators  From the natural rights is born the natural law

Observations  Authoritarian  Order > justice  Modern view of natural rights?  Basic right to preserve’s one’s life

Summary  Concept of law  Law already exists in nature  Discoverability through reason  Foundation of law  Undisputed natural existence  Attachment to the Greater Power

 Thomas Hobbes  Social contract  Sovereign power  Distinction between natural rights and natural law

John Locke   Second Treatise  Reversal of Hobbes  A positive view on human nature  Reason and tolerance

 Inadequate property protection  Individual property rights as natural and exclusive rights  Emphasis on man’s obligations and rights under God

 Social contract  Natural willingness  Defend the natural rights to life, liberty, and property  From the natural law is born the natural rights

 Government as neutral and objective judge  Advocates for a limited form of government  Check and balance  Genuine representation in the legislature

Comparing Hobbes and Locke  Differences  Human nature  Form of government  Distinction between natural law and natural rights

 Similarity  Divine intervention

Hugo Grotious  17 th century Europe  Freedom of the seas, Just war theory  Public international law  ‘Intrinsically’ wrong

 Secularisation of natural law  “Even the will of an omnipotent being cannot change or abrogate natural law.”

Decline and Renaissance of Natural Law  19 th c. with legal positivism  Rational reasoning over moral reasoning  20 th c.  Post-war recognition of human rights or crime against humanity

Modern Natural Law

John Finnis   Natural law and natural rights  Universal and immutable principles of natural law  Thomas Aquinas

 seven basic goods;  life, knowledge, play, aesthetic experience, sociability of friendship, practical reasonableness and religion

 ‘Self evident’  Intuition  Not inferred from anything at all

 Rationale of natural law is to establish what is good for human  Common goods = justice  Thus is born natural rights

Evidences of Natural Law  Fundamentals Laws of England  Used since 17 th c.  Law passed by the parliament  Instrument in the struggle between parliament and monarch

 Documenting a constitutional view of law  From the Magna Carta  “The absolute rights of every Englishman”

Universal Declaration of Human Rights  Declaration adopted by the UN Assembly  48 States  WWII  Not legally binding

 ‘Fundamental freedoms’  ‘Human rights’  Principles of dignity, liberty, equality, and brotherhood

Human Rights  Rights of the individual  Right to life  Prohibition of slavery  Right to marry  Rights of the individual in civil and political society  Right to equal and fair public hearing  Social, economic, cultural rights  Right to rest and leisure

Fundamental Freedoms  Freedom of individual in a society  Freedom of movement  Spiritual, public, and political freedoms  Freedom of association  Thought  Conscience  Religion

Observation on DUDH  “universal”  International customary law  Freedom of religion  Non-respect of local culture?  Right to refuse to kill

 Asian values  BKK Declaration  Sovereignty and non-interference  Economic development over civil and political rights

Nuremberg Trials  Prosecution of prominent members of Nazi Germany  Judges are Soviet, US, GB, F  Capital punishment and incarceration

 ‘war crime’  ‘crime against humanity’

War Crime  Violation of the law of war engage individual criminal responsibility  Torture  Intentionally killing civilian  Rape  Child soldiers

Crime against Humanity  Widespread or systematic attack against a population  International customary law  Peace or war

 Murder  Forced disappearance  Slavery  Torture  Rape  Unjust imprisonment

Criticisms of the Trials  Retroactivity of the law  Judges selection

Criticisms of Natural Law  Rejected by legal positivists  Jeremy Bentham “a mere work of fancy”