I. Natural Law, Justice, Positivism and Liberty

Question 1

1. Ancient Natural Law and Justice
   Aristotle:

Answer 1

Aristotle does not distinguish between nature and culture as we do today
- This affects the understanding of natural law
- Typically, he is still treated as one of the earliest proponents of natural law
➢From an Aristotelian perspective, natural law is trust in inherent reasonableness,
which is pervasive throughout nature and culture!

Question 2

What is natural law from an Aristotelian perspective, and how does its teleological aspect relate to Aristotle’s “four causes”?

Answer 2

Natural Law: Trust in inherent reasonableness in nature and culture.
Teleological Aspect: Focus on telos (end/purpose/goal).
Final Cause: One of Aristotle’s four causes, explaining a thing’s ultimate purpose or function.
Four Causes:
Material Cause: What something is made of.
Efficient Cause: The process or agent causing it.
Formal Cause: Its structure or design.
Final Cause: Its telos, the reason it exists or its goal.
Connection: Natural law aligns with the final cause, emphasizing that everything has a rational purpose directed toward a goal.

Question 3

Aristotle, Nicomachean Ethics, why do people Go to junges in Disputes?

Answer 3

Disputes – People seek resolution in disputes.
Judge – Seen as a refuge during disputes.
Justice – Judges represent justice in action.
Animate Justice – The judge embodies living justice.
Intermediate/Mediator – Judges act as intermediaries or mediators.
Intermediate = Just – Assumption that the intermediate is aligned with fairness.

Question 4

Aristotle, Nicomachean Ethics (Fourth Century BC), Book V: why do they trust the judges?

Answer 4

A judge has special insight into nature and culture:
- He sees the real justice and is the living justice
- Parties recognize justice when the judge proposes it – the idea of justice is then
intelligible to them (Cf. Plato)
- Hence, the judge somehow convinces the parties

Question 5

Aristotle, Nicomachean Ethics (Fourth Century BC), Book V:
- Two notions of justice

Answer 5

1. Iustitia distributiva
2. Iustitia commutativa
   Caveat: they are often conflicting!

Question 6

1. Iustitia distributiva:

Answer 6

• Suum cuique
• Focus on the merit of individuals
• Equals receive equal shares, unequals receive unequal shares
• e.g. distribution of social benefits; most tax law norms

Question 7

Abuse of the term suum cuique:

Answer 7

Jedem das Seine

Question 8

2. Iustitia commutativa:

Answer 8

a. Contractual justice: equilibrium (e.g. contracts)
b. Non-contractual justice: iustitia correctiva (e.g. damages)

Question 9

According to Cicero in De Officiis, what are the key tasks of justice and how do they support community life?

Answer 9

Cicero defines justice as rational behavior that preserves the community of people and community of life. Its key tasks are:

“Neminem laedere”: Do no harm to others unless responding to an injustice.
Respect for property: Treat common property as shared and private property as inviolable.
This ensures societal harmony and mutual respect.

Question 10

Augustinus, De civitate Dei (413-426), XIX, 4: What is the distinction between divine justice and human justice, and how does justice establish order according to the concept of iustitia?

Answer 10

Divine Justice: Perfect and absolute, rooted in God’s will and eternal natural order.
Human Justice: Always imperfect, limited by human understanding and societal constraints.
Iustitia: Justice’s task is to give each their due (suum cuique).
Natural Order: Justice creates harmony:
Soul is subject to God.
Body is subject to the soul.
Key Concept: Justice reflects both an internal order in man and a broader divine hierarchy.
This highlights the imperfection of human justice compared to divine justice, which aligns with the ultimate cosmic order.

Question 11

Aquinas, Summa Theologica (1265/1266-1273:What are the key elements of Aquinas’ understanding of justice and natural law, incorporating Aristotelian influences?

Answer 11

Aquinas adopts Aristotle’s division of justice into distributive justice (fair allocation of goods) and commutative justice (fair exchanges between individuals).
He emphasizes that through introspection, individuals can discern the common good.
Natural law, in Aquinas’ framework, is teleological—it is designed to guide humanity toward the common good.
This reflects a theological perspective that aligns human law and morality with a divine purpose.

Question 12

Why is ancient natural law considered teleological in nature?

Answer 12

• Teleological: Focused on telos (end/purpose/goal).
• Ancient Natural Law: Rooted in the idea that all things in nature have an inherent purpose.
• Aristotelian Influence: Emphasizes the final cause, one of Aristotle’s “four causes.”
• Purpose of Natural Law: Guides actions and structures toward their ultimate goal or fulfillment.
• Key Idea: Natural law reflects the reason and order present in the universe, aligned with its ultimate ends.

Question 13

2. Modern Natural Law and Justice
   Hobbes, De Cive (1642); Hobbes, Leviathan (1651):
   What is the “state of nature” concept and how does it lead to the creation of a social covenant?f

Answer 13

State of Nature: No property, justice, or legislative authority; potential for coercion.
Key Phrases:
Homo homini lupus est: “Man is a wolf to another man.”
Bellum omnium contra omnes: “War of all against all.”
Natural Right (Ius Naturale): Self-preservation.
Social Covenant: Humans unite to escape chaos and create order (linked to causa efficiens, efficient cause).

Question 14

2. Modern Natural Law and Justice
   Hobbes, De Cive (1642); Hobbes, Leviathan (1651):
   why is the creation of a state essential for justice, and what is the citizen’s role in relation to the state’s laws?

Answer 14

Hobbes argues that justice is only possible through the governance of a state, established by a social covenant among individuals.
The state ensures order and prevents the chaos of the “state of nature.”
Citizens must accept and obey the state’s laws without questioning them, as this obedience maintains stability and prevents a return to anarchy.

Question 15

Other contractual theories:

Answer 15

Rousseau, Du contract social ou Principes du droit politique (1762)
- Locke, Two Treatises of Government (1689)
- […]
- Rawls, A Theory of Justice (1971)

Question 16

modern law focus

Answer 16

➢ Modern natural law focuses in general on the causa efficiens

Question 17

3. Positivism
   Positivism as a general philosophical movement:

Answer 17

• Founder: Auguste Comte (1798–1857)
• It is based on evidence and dominates today in particular natural sciences
• Positivists rely on objectively given facts (Cf. positum)

Question 18

Legal Positivism:
- There are three different types of legal positivism (not canonically defined)

Answer 18

1. Positivism of convenience
2. Positivism of abstinence
3. Positivism of inclusion

Question 19

Legal Positivism:
1. Positivism of convenience:

Answer 19

• Proponents focus on statutory law, and do not ask further questions
• “philosophically agnostic”
• No justification needed – other than that law is

Question 20

Legal Positivism:
2. Positivism of abstinence

Answer 20

Personified by Hans Kelsen (Pure Theory of Law)
- Law shall not be conflated by morality, social sciences or other phenomena different
from law
- Seek absolute/formal truth
- World of ought to, rather than the world of is – imputation instead of causality

Question 21

Legal Positivism:
3. Positivism of inclusion

Answer 21

• One major proponent is H. L. A. Hart, he is a British positivist
• He distinguishes primary rules and secondary rules, then there is also a rule of
  recognition
• British legal positivism attempts to find a common denominator for positivism and
  natural law

Question 22

Radbruch, Statutory Lawlessness and Supra-Statutory Law, Oxford Journal of Legal
Studies 1946, 1 (6):What critique does Gustav Radbruch make of legal positivism in his article Statutory Lawlessness and Supra-Statutory Law (1946)?

Answer 22

Radbruch critiques legal positivism for its principle that “a law is a law,” which he argues left the German legal profession defenseless against arbitrary and criminal laws during the Nazi regime.
He suggests that positivism’s rigid separation of law and morality can enable gross injustice.
Radbruch advocates for the concept of supra-statutory law, where fundamental principles of justice take precedence over statutory laws that are manifestly unjust.

Question 23

4. Gustav Radbruch
   The Law must effectuate three values/interests

Answer 23

Justice/
Legitimacy
Flexibility
Legal Certainty

Question 24

1. Justice/Legitimacy:

Answer 24

• Justice as basis for the legitimacy of the law
• Is a key element to natural law – if a provision is illegitimate, it cannot be law in terms
  of natural law theories

Question 25

2. Legal Certainty:

Answer 25

There needs to be certainty that there is law and that it regulates a particular matter
- It provides for protection that the law will not be used in an arbitrary way
- Legal certainty was attempted to be achieved through casuistic codifications
e.g.: Allgemeines Landrecht für die Preußischen Staaten, Code Civil and early Drafts of the
Austrian Civil Code

Question 26

. Purposiveness (originally: Zweckmäßigkeit) and Flexibility:

Answer 26

• Serves the public benefit
• However, law is not anything and everything that serves the public benefit
• What benefits the people is a law that creates legal certainty and strives toward
  justice
• Flexibility: doing justice in an individual case, necessary for the law to stay intact

Question 27

Radbruch, Statutory Lawlessness and Supra-Statutory Law, Oxford Journal of Legal
Studies 1946, 1 (7):
Radbruch’s formula:

Answer 27

The conflict between justice and legal certainty may well be resolved in this way: The
positive law, secured by legislation and power, takes precedence even when its content is
unjust and fails to benefit the people, unless the conflict between statute and justice
reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice.

Question 28

J. S. Mill, On Liberty (1859) 13:
Harm Principle: what is the only legitimate reason for state power to be exercised over an individual?

Answer 28

Legitimate State Power: Can only be exercised against an individual’s will to prevent harm to others.
Harm Principle: The only justification for state interference is to stop actions that harm others.
Key Concept: Individual liberty should be protected unless actions directly affect the well-being of others.

Question 29

. S. Mill, On Liberty (1859) 13:
Harm Principle:
According to J. S. Mill in On Liberty, what is the scope of individual sovereignty and when is society justified in intervening?

Answer 29

Individual Sovereignty: The individual has absolute independence over his own body and mind.
Society’s Role: Society can only intervene in matters that concern others.
Key Concept: Individuals are sovereign over themselves unless their actions affect the well-being of others.

Question 30

J. S. Mill, On Liberty (1859):
Harm Principle:
when is the harm principle applicable, and what is its stance on dogmatism?

Answer 30

Applicable Societies: The harm principle applies to societies that can be improved through free and equal discussion.
Against Dogmatism: Opposes dogmatism by encouraging open dialogue and critical thinking.
Key Concept: Societies must be open to discussion and change, rejecting rigid, unquestioned beliefs.

Question 31

J. S. Mill, On Liberty (1859):
Harm Principle: What is the relationship between the harm principle and Utilitarianism?

Answer 31

Harm Principle: State interference is justified only to prevent harm to others, ensuring individual freedom.
Utilitarianism: Seeks to promote the greatest happiness for the greatest number of people.
Relationship: The harm principle aligns with Utilitarianism by allowing individual freedom unless actions cause harm to others, thus maximizing overall well-being while protecting individual liberty.
Key Concept: Both theories aim to maximize happiness and minimize harm but balance individual rights with social good.

Question 32

5. Liberty
   Example:

Answer 32

Is it justifiable for someone to be penalised for not doing their military service because
of their religious beliefs, assuming they would do civilian service instead?

Question 33

ECHR, Bayatyan, Judgment of 7 July 2011

Answer 33

This European Court of Human Rights case recognized conscientious objection to military service as a protected right under Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights. The court ruled that states must respect individuals’ genuine religious or moral objections to military service, marking a significant extension of Article 9 protections.

Question 34

ECHR, Article 9, Freedom of thought, conscience and religion:

Answer 34

1. Everyone has the right to freedom of thought, conscience and religion; this right includes
   freedom to change his religion or belief and freedom, either alone or in community with others
   and in public or private, to manifest his religion or belief, in worship, teaching, practice and
   observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are
   prescribed by law and are necessary in a democratic society in the interests of public safety, for
   the protection of public order, health or morals, or for the protection of the rights and freedoms
   of others.

Question 35

. Liberty
ECHR, Article 4, Prohibition of Slavery and forced labour:

Answer 35

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall not include:
   (a) any work required to be done in the ordinary course of detention imposed according to the
   provisions of Article 5 of this Convention or during conditional release from such detention;
   (b) any service of a military character or, in case of conscientious objectors in countries where they are
   recognised, service exacted instead of compulsory military service;
   (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the
   community;
   (d) any work or service which forms part of normal civic
   obligations.