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philosophy of law > Modern Natural Law > Flashcards

Modern Natural Law Flashcards

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1
Q

What is the context of Hugo Grotius’ theory of law?

A
  • lived durng the era of uncertainty in Europe - 30 Years’ War; fall of religious unity
  • internal conflicts (religious divisions within states between Catholics and Protestants)
  • external conflicts (territorial disputes among states)
  • Grotius saw problems:
    1. internal laws were changing quickly depending on political regimes
    2. there were no rules stablish to govern relationships among states
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2
Q

Grotius’ social contract theory.

A
  1. State of nature - people are sociable and rational => humans naturally seek others to from agreements and respect of those agreements is seen reasonable by all
  2. Social contract - agreement among individuals (no divine will); pact obliges people to joint together and subordinate to the sovereign; contract provides framework for resolving disputes
  3. Civil state - individuals unite under a sovereign which has the power to dictate laws
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3
Q

Main features of Grotius’ theory.

A
  1. Secularism - “let’s put God in brackets”, laws and principles can be valid even without the divine presence; law is grounded on reason
  2. Individualism - mainly economic, humans seek greedom to act, produce and enrich themselves; make contracts ad form agreements to advance mutual benefits; laws centre on the contracts between individuals; society is collection of individuals (contracts govern their relationships)
  3. Rationalism - truth and always are guaranteed by reason; contract embody rational though and the voluntary consent of individuals
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4
Q

Philosophical foundation of Hobbes’ thought.

A
  • rejection of scholasticism - sought scientific base for understanding politics and society; emphasised obervable phenomena and rational deduction
  • empiricism - Galilieo
  • rationalism - Descartes
  • political geometry - after observation, one must work with abstract concepts and formulte a hypothesis
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5
Q

State of nature for Hobbes.

A
  • humans are self-interested and aggressive
  • Homo hominis lupus
  • Bellum omnium contra omnes
  • everyone has the “right to everything” which creates conflict between everyone
  • fear and desire to self-preservation guide the conduct of individuals in the state of nature
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6
Q

Social contract for Hobbes.

A
  • people give up their “right to everything” in exchange for peace and security
  • everyone makes contract with themselves to give up their right on behalf of a third party and unite under the rule of sovereign
  • sovereign is the only one who does not take part in the contract and retain the right to everything
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7
Q

Civil state and sovereignty accroding to Hobbes.

A
  • sovereign is Levithan = has absolute power (both civil and religious)
  • sovereignty must be absolute to effectively maintain order
  • sovereign is not bound by social contract and operates outside of its constrains
  • best form of government is monarchy - ensures stability and security, concentrating power in a single ruler
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8
Q

Law according to Hobbes.

A

1) Civil law
- command issued by the sovereign
- validity of law is derived from the authority of the sovereign, not the content
- law is binding. because of people’s fear of punishment and the authority of the sovereign
- justice is adherence to the decrees
2) Natural law
- laws derived from reason, aiming at preserving life and promoting peace
- create rational basis for societal order
- Hobbes outlines total of 19 laws of nature
1) seeak peace, but be prepared to defend oneself if peace is unattainable
2) give up the right to everything, limiting own freedom to ensure collective security
3) keep covenants, breaking agreements undermines trust and stability

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9
Q

State of nature and social contract according to Locke.

A

1) State of nature
* optimistic - people are tolerant, reasonable and want to improve their position in a peaceful way
* conflicts are pathological and abnormal (to resolve them authority needs to be established)
* everyone has inherent rights - life, liberty, property
2) Social contract
* bilateral agreement with the sovereign (state)
* agreement to preserve the natural rights
* need to social contract arises from pathological disputes

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10
Q

Civil state according to Locke.

A
  • central function of Parliaments - citizens discuss and uphold rights; functions on trust and consent
  • contract established rule of law that applies to everyone, even the state
  • sate has to be non-interventionist (minimal intervention, only when necessary)
  • state should function as impartial judge (adjudicating disputes, but otherwise non-active)
  • strict separation of powers (legislative, executive, international law)
  • Parliament cannot delegate authority and executive cannot rule through extraordinary measures
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11
Q

Right to resistence.

A
  • according to Locke, when state stops performing the contract (guaranteeing the inherent right) citizens have the chnage to make an appeal to Heaven and remove the sovereign
  • 5 conditions enabling appeal to heaven
    1. external conquest
    2. internal usurpation
    3. tyranny (semblance of order, but unjust governance)
    4. dissolution of government (lack of trust)
    5. undue deprivation of property
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12
Q

State of nature according to Rousseau.

A
  • people are Le Bon Sauvage = innocent, self-sufficient, uncorrupted
  • amour de soi = primal and natural self-love; self-preservation without harming others
  • in state of nature there is no property, hierarchy and therefore no inequalities
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13
Q

Social contract according to Rousseau.

A
  • private property introduced inequality and societal division
  • amour propre = self-love which emerged with civilisation; rooted in comparison with others, fueled by competition, envy and need for validation
  • people become dependent on each other which creates hierarchies and inequalities
  • social contract should reconcile individual freedom with collective order
  • individuals willingly surrender their natural freedoms in exchange for civil rights
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14
Q

General will for Rousseau.

A
  • general will represents the collective interests and shared values of the community
  • overarching moral and political consensus, not a sum of individual wills
  • guides creation of laws and governance structures
  • citizens are morally and socially oblogated to follow the general will
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15
Q

Laws in civil state according to Rousseau.

A
  • creation of laws if grounded on the general will
  • laws are restrictive - limit individual freedom
  • laws are liberating - ensure equality and collective freedom through estavlished processes of justice and protection
  • state should educate citizens so they would align with the general will
  • law should create equality and mutual obligations for the state and its citizens
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16
Q

Criticisms of Rousseaus theory.

A
  • general will could devolve into a tool for authoritarians
  • overemphasis on collective may suppress individuals
  • risk of tyranny of majority
17
Q

Kant’s revolution of knowledge.

A
  • also called “Copernican shift”
  • knowledge arises from the interaction between subjects and external world
  • subject (human minds) shape the knowledge rather than passively receiving it
  • shift, because philosophers before Kant believed, that the world around us shapes our experiences
    A) noumena = thing-in-itself, the reality beyond human comprehension
    B) phenomena = reality as it appears to us, shaped by our preceptions
  • humans have transcendental structures within their minds that shape their experience
18
Q

Types of knowledge (Kant).

A
  1. A priori - independent of out experience, universally applicable
  2. A posteriori - knowledge gained through experience, dependent on observations
19
Q

Categories of knowledge (Kant)

A
  1. Analytic A Priori (formal knowledge) - derived through logical analysis withut the need for experience; tautological (provides no new information)
  2. Synthetic A Posteriori (empirical knowledge) - gained through observation and experience; adds new information not inheretnlu contained in the subject
  3. Synthetic A Priori - combines universality with informative content; foundation of human understanding of the world
20
Q

Morality for Kant.

A
  • morality is grounded on reason - humans are capable of determining universal moral principles through their reasoning
  • hypothetical imperative = conditioning actions tied to specific goals or desires, action based on this imperative are not moral
  • categorical imperative = unconditional moral law valid for all rational beings, based on principles that could become universal laws
  • categorical imperative is unconditional and must be followed regardless of personal desires or consequences
  • action has moral worth only if it is performed out of a sense of duty
21
Q

Social contract theory according to Kant.

A
  • State of nature - people have unlimited freedom and rights, but they are only provisional, not secure
  • Social contract - ensures freedom by establishing a system of enforceable rights; transforms provisional natural rights to protected civil rights
  • Civil state - laws align people under universal rules for coexistence; social organisations resolve conflict between human sociability and unsociability
22
Q

Perpetual peace

A

1) Preliminary articles (steps to peace)
- no peace treaty can reserve right for future war
- states cannot annex others through inheritance or trade
- standing armies should be abolished
- national debt shouldn’t be created by forging war
- state must avoid interfering in each other’s governance
- limit hostility to foster trust in future peace
2) Defiinitive articles
- republican constitution (ensures equality and justice through rule of law)
- international federation (league of free states to end all wars)
- cosmopolitan law (guarantees universal hospitality, treating all people as cohabitants)

23
Q

What is Kant’s view on law?

A
  • law deals with external behavior and ensures harmony in society through coercive means
  • morality concerns the individual’s inner sense of duty and acting according to the categorical imperative
  • features of law
    1. intersubjectivity (external actions)
    2. Willkür (ability to act without external constraints)
    3. formalities (the form of contract)
    4. coercion (external constrains, sanction)
  • role of law is to secure this universal freedom
  • justice arises when the laws of a society ensure the equal freedom of all individuals
24
Q

What is the difference between positive and natural law for Kant?

A
  • natural law (private law) = rules whose obligatory depends on the intimate conviction of their rationality as ‘a priori’ principles; present in state of nature
  • postive law (public law) = rules enforced by the state (sanctions, coercion); present in public society

philosophy of law (4 decks)

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