extra texts we need to know Flashcards
Hegel: Outlines of the philosophy of right
Basis of right= realm of spirit (location/start is the will) (will=free, so will decides substance/destiny (?))
freedom= just as basic a law, as weight is a basic determination of bodies —-> natural and always basic
The same way mass= weight, will= freedom
Will without freedom doesnt exist
spirit= thought in general, thought distinguishes humans from animals
Distinction between thought and will IS NOT that humans think on one side and want on the other - but difference is the same as between theoretical and practical attitudes (not 2 separate faculties)
Will = particular way of thinking (thinking translates itself into existence)
When thinking of an object, u turn it into your thought (taking its real quality and making it into something which is essentially mine)
Theoretical attitude: Every representation is a generalisation (to generalise something is to think it: “I” is thought and universal, but when it is said, it is without character (leaves out ur age, character, etc.) ; u oppose yourself to the world, w the uncharacterness of “I” and make “I” your own
Practical attitude: as far as I am practical/active, I determine myself and that means to precisely posit a difference (those differences= also mine)
Theoretical + practical attitude are NOT separate, but the theoretical is contained within the practical, one cannot have a will without intelligence
will= contains theoretical within itself (we represent what we want inside our heads, animals do not, they just act by instinct)
Freedom = given as a fact of consciousness in which we must believe (spirit is initially intelligence) (first u feel, to representational thinking (vorstellungen) to thought, which produces will)
will= contains a) elements of pure indetermina or of the “I”’s pure reflection into itself
Limitless infinity of absolute abstraction or universality, which is the pure thinking of oneself
ECHR Bayatyan, Judgement of 7 july 2011
Applicants submission: armenia had legally committed itself since 2000 to recognise conscientious objectors; article 4 wasn’t meant to be read w article 9 (travaux préparatoires); if article 9 did not apply to conscientious objectors, why didn’t it say so in the article; article 9 including conscientious objectors is reflected by organs of the council of europe and the EU, (need to recognise conscientious objectors if u want to join the council now) ; armenian gov had legally binding commitment to pardon all conscientious objectors (!!), meaning armenia’s domestic law wasn’t overlapping, meaning they would have had to change it; armenia also party to the ICCPR in 1993, staying unfaithful to their article 18; armenian gov had pardoned ppl in a similar position; too few ppl were conscientious objectors in armenia today, meaning it wouldn’t have a negative impact on armenia’s military (2007 - 125 000 active conscripts, 2007 - 551000 potential ones, only 41 imprisoned jehovah’s witnesses)
Government submission: under constitution guy had to perform military service regardless of his religion and fulfilment of this isnt violation of his rights; (jehovah’s witness not grounds for exemption)–> if he got exemption, it would be violation of the principles of equality and non-discrimination (bc it was on grounds not prescribed by the law); Peters v the Netherlands case (1994) and Heudens v Belgium 1995), both cases by the commision, (latest decisions on the matter at the time of his conviction in 2000/2001), made clear that article 9 did not concern exemption from military service on religious/political grounds (in Thlimmenos v Greece, 2006, court didn’t even recognise the applicability of article 9); article 4 leaves choice to the member states, so his article 9 rights are not violated; currently too many religious orgs in armenia (60), meaning they could all claim conscientious objection based on religion, not just jehovah witnesses (“also members of jehovah’s witnesses could decide to just not follow the law based on “religion” as apparently that also violates their article 9 rights” = in my own words// also person wanting to dodge military services could just become a part of a specific religion); 2003 Alternative Service Act adopted by Council of europe - “authorities had thereby accepted the possibility of exemption from military service on religious grounds, while conscientious objectors were provided with an alternative means of performing their constitutional obligation. Thus, at present, conscientious objectors were being convicted only if they also refused to perform the alternative service” ; gov complied w obligation to pardon conscientious objectors, as he only served 6 months instead of 2 years and six months; conscientious objection not recognised under armenian law (constitution and military liability act very accessible/sufficiently precise)
Observation of Amnesty Int., Conscience and Peace Tax international, Friends committee for consultation (quakers), international commission of jurists and war resisters international: Yeo-bum Yoon and Myung-Jin choi cases, violation of article 9, as article 9 did not allow limitations on freedom to manifest one’s religion/on the grounds of national security; ====> conscientious objection protected under article 9
European Association of Jehovah’s Christian Witnesses: christians cant take up arms against their fellow man; no alternative civilian services in armenia free form military (from 2002-2010, 273 ppl convicted , 72 people serving sentences from 24-36 months rn); apply “living instrument” doctrine and bring case law up to current conditions
Courts assessment: article 9 not violated, as article 4 directly recognised that civilian services could be imposed on conscientious objectors; (see Grandrath v Germany, 1966), article 4 allows countries that don’t recognise conscientious objectors to punish those that refuse to join the military, also article 4 does not impose on states that they have to make special arrangements for ppl based on religion (see G.Z v Austria, 1973); right to conscientious objection not guaranteed by the convention (see X v Germany and A v Switzerland), which was upheld by other cases, but the commission did point out that u have to examine it under article 14 of the convention)
Need for change of the case law? : Court notes that prior to this case it has never ruled on the question of the applicability of Article 9 to conscientious objectors, unlike the Commission; Armenia recognises the right of conscientious objection ; UNHCR says right to conscientious objection can be derived from article 18 of the ICCPR; at the time there was already a general consensus and the question; article 4 and 9 are read separately, meaning applicants complain should only be read w article 9; law of armenia was applied correctly and in sufficiently clear terms; guy sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions. Since no alternative civilian service was available in Armenia at the material time, the applicant had no choice but to refuse to be drafted into the army if he was to stay faithful to his convictions and, by doing so, to risk criminal sanctions. ⇒ system existing at the material time imposed on citizens an obligation which had potentially serious implications for conscientious objectors while failing to allow any conscience-based exceptions and penalising those who, like the applicant, refused to perform military service; armenia should provide him w alternative service
====> there was a violation of article 9
Application of article 41:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party
Applicant paid 10 000 in damages, court rules that he gets those back; 10 000 awarded for costs and expenses for the trial;
Final verdict: there has been a violation of article ; the gov has to pay 10 000 and 10 000 to the applicant within 3 months; the applicants claim for just satisfaction is denied
Kelsen: What is justice
Justice = primarily a possible, not a necessary, quality of a social order regulating the mutual relations of men
Secondary = a virtue (but only secondary) (if a man’s behaviour is just, he adheres to the social norms of a social order supposed to be just)
Just social order = regulates behaviour of men in a way that makes all of them happy
Longing for justice = longing for happiness —–> justice= social happiness
Just order can’t exist, if u define happiness as individual happiness (ex: if both men want same job, one of them will be unhappy when the other has it)
Nature = not just (makes one healthy, other sick, some stupid, some smart) —> social order can’t fully compensate for the injustice of nature
Jeremy bentham happiness: greatest possible happiness for the greatest number of people —-> not, bc happiness that a social order is able to assure cannot be happiness in a subjective-individual sense, but it must be happiness in a objective-collective sense
happiness= satisfaction of certain needs, recognized by the social authority/lawgiver (like being fed, etc.) = justice
freedom= cant mean absence of government, but has to by government exercised by the majority (freedom of anarchy => self-determination of democracy)
Without conflict of interest= no need for justice —> need to judge values, to determine which ones we need satisfied, and which ones don’t need to be satisfied
Ex: if one value is the human life has the biggest value (conscientious objection and people oppose the death penalty), but other value is that you have to honor your nation, meaning you should kill people in war to defend this nation, which value is more important? No rational scientific solution, but simply our will/feeling
Other ex: if you are trapped in a concentration camp, is suicide morally justifiable? (value of freedom VS value of life) (if life has higher value, suicide not justifiable, but is freedom has more value it is) —– > personal question: Are u killing yourself in a concentration camp, bc you dont have freedom or bc you would rather have the quick way out, than be treated as inhumane as the nazis treated the jews?
For both ex’s = not objective statement valid for everyone
Plato= only a just man is happy (Admits there are some few exceptions) —-> but people under legal order have to believe this statement, bc otherwise no one would obey the law (even if the statement is a lie) (lawfulness over truth for him)
Also rank of values from freedom, etc. depends on too on religion (christian believes in afterlife, atheist does not), depends on political views (liberal believes individual freedom to be the highest good, socialist believes that the treatment of men is ranked higher than freedom)
======> value judgements= subjective
That value subjects are subjective, doesn’t mean every individual has its own system of values
Every system of values = social phenomenon/ the product of the society within which is arises
Many ppl agreeing in their judgement of value = no proof that the judgements are correct (ppl used to believe the sun turned around the earth, doesn’t mean that was true)
Criterion of justice, like truth is not dependable on amount of ppl who believe in it (used to be just to do blood revenge) (= own ex: in viking times, revenge killings used to be considered just)
humans= have consciousness, so have a need to justify their behaviour (before themselves and others) = rational being (only possible if it refers to the end of means)
Ppl act like their answer to question like truth/etc is a fact
Democracy only just, bc it focuses on individual freedom, if u believe social justice to be the most important, maybe another form of government is more just
Another end requires another means
Metaphysical type: ex Plato, idea of the good, (=rule like god), for Plato what is justice is the same as what is good? No definitive answer, bc its ahead of our minds (can’t describe absolute good in human words) === similar to Christ; (justice = love of god, justice is a secret)
Pseudo- rationalistic: ex Ancient greece (justice= to give to each its own; only works bc u have already established in a social order, what ppl need, making the formula useless, bc u can use it to justify any social order); principle of attribution (for good u get good; useful, bc definition of evil/good subjective)
U shall not do unto others what u dont wish to be done upon yourself== not valid, bc then u wouldn’t punish a criminal (bc do u urself wanna get punished?) ; also if someone lies to me, no im allowed to lie to him ( not justice)
Kant: categorical imperative, act only on that maxim that can become a universal law (only act w the principles u would want all men to follow) → no answer to which principles they are (formula can apply to a lot, so u can use it to justify any social order)
Metaphysical: doctrine of natural law (nature is just and regulated as a just legislator) ⇒ nature has no will, so can’t describe will (some argue having an absolute ruler is from nature, some say democracy is from nature, etc:)
Freedom = tolerance
Democracy just bc it focuses on freedom, which means freedom (democracy has to accept other forms of government or it isn’t a just democracy anymore)
justice= he doesnt know ??? ( for him= justice of freedom, justice of tolerance, justice of democracy, justice of science)
