Natural and Positive law- Justice

Question 1

Name 4 causes (Aristitle)

Answer 1

1. Formal cause-linguistic
2. Material-subdatnce
3. Effective-who put the seed in soil
4. Teliological-purpose

Question 2

Explain the notion of Aristotelian judge

Answer 2

–Judge has a special insight into nature and culture
- For Aristotle it’s about sharing an insight by judge in a court
- The judge has acces to justice and he is trying to convince the parties (before positivism system

Question 3

Explain two notions of justice

Answer 3

1. IUSTITIA DISTRIBUTIVA-distribituve justice, hand out with accordance to justice
   -focus on the merits of indoviduals
   -during the Drittes reich was used by nazis for propaganda-jedem das seine (suum cuique)
   -equals recieve equal shares-unequals-umgekehrt eg distribution on social benefits, tax law norms
2. IUSTITIA COMMUTATIVA-balancing justice

Question 4

What are counterparts of iustitia commutativa?

Answer 4

1. contractual justice (equilibrium)-justice between two parties, relational. Matters are just only for 2 parties-interparty. Vineyard story
2. non-contractual (iustitia correctiva)-> one has to correct what he has done wrong-eye for eye principle. the sucntion mirror a deed

Question 5

What is Cicero’r notion of Justice?

Question 6

What is Augustinus notion of Justice?

Answer 6

-distinction between divine justice and human justice
-human justice is always imperfect
-Justice whose task it is to apportion to each what is his [suum cuique], whereby a certain order of nature is established in man himself, so that the soul becomes subject to God and the flesh of the soul […]

Question 7

What are the features of ancient natural law?

Answer 7

-Aquinas uses theology (religion GOd) and refers to teh Aristotelian division into disctributive and communattive justice
-Natural law is supposed to lead humanity to a common good
-Ancient natural law is teleological law

Question 8

What are the features of the modern natural law?

Answer 8

-close to positivism
-focused on the effective cause
-the Aristotelian judge wants to convince you, when Hobbes judge wants to give you ordern
-The law is legitimized by the source of the law, not because of what it does or what it is good for
-Hobbes

Question 9

How do virtue abd justice are connected with each other (Cf Nechomachin Ethiks Aristotle)?

Answer 9

1. due to Aristotle, virtue and kustice are quite same, but in theit essence they are different
2. justice is a relation to another, it is not inly about individual’s moral state
3. virtue is a certain kind of state without qualification. represents individual’s inner moral state
4. justice is a manifesatation of virtue/ virtue in a prctice

Question 10

How does Aristotle describe the destributive justice?

Answer 10

1. based on proportional equality not strictly numerical equality
2. relies on geometrical sense-each person recieves that is proportional to some standart of worth
3. application: ensure fairness in societal arrangements

Question 11

How does Aristotle describve rectificatory (corrective) justice?

Answer 11

1. restoring fairness in cases where an injustice or harm has occurred.
2. operates on arithmetical equality-focus is on undoing the specific harm, ensuring that the gain of the wrongdoer is removed and the loss of the victim is restored.
3. application: is used by courts where disputes individuals should be resolved

Question 12

What is justice in exchange (reciprocity)?

Answer 12

1. governs voluntary transactions such as trade, contracts-maaintrain balnce between parties
2. money as a mesure- acts as a medium to facilitate proportional exchanges. It standardizes value, enabling different goods and services to be compared and traded equitably.

Question 13

What is natural justice?

Answer 13

-universal principles of fairness and morality that are inherently right; applies to all human beings across time ans place
- arises from the shared rationality and social nature of human beings. Since humans are capable of reason and naturally inclined to live in communities, there are certain actions and norms that are universally just.

Question 14

What is political justice?

Answer 14

-operates within a specific political community (city-state)
-based on laws and agreements that are created by human beings to regulate the behavior of citizens and maintain order within society
-can vary depending on the culture, legal system->notion of kustice can be different in different societies
-devided into written and unwritten laws (statutes+social norms and customs)
-seeks to embody natural justice within the framework of a particular society.

Question 15

Can man treat himself unjustly?

Answer 15

-justice is a relational virtues, based on the relation between the individuals-> may not strictly apply to a person in relation to themselfs
- injustice involves taking what belongs to someone else-> when smb harms tehmselves it’s no the same

Question 16

What are the types of positivism?

Answer 16

1. positivism of CONVENIENCE-never questions the teliologu of the law
   -focus on statutory law and do not ask further questions
   -phylosophically agnostic
2. positivism of ABSTINANCE (Kelsen “Pure theory of law”) -Law shall not be conflated by morality, social sciences or other phenomena different from law
   -It’s really about restricting arguments in a legal discourse
   -restrict the tunnel of legal argument
   -seek absolute/formal truth
3. positivism of INCLUSION (Hart )
   -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 17

What is Radbruch’s formula about?

Answer 17

-It adresses the conflict between positive law (laws created by the government) and justice, particularly in situations where laws are unjust or morally wrong
-Normally, laws should be obeyed, even if they seem unjust, as long as they are created by legitimate authority and follow proper procedures
-However, when laws are so extremely unjust that they violate basic human rights or contradict fundamental principles of justice, those laws lose their legal validity. In this case, justice takes priority over positive law.
-Radbruch said, in essence, that when laws become “intolerably unjust” or when they are enacted with the purpose of violating justice, they are no longer laws and should not be followed

Justice +Legal Certainty+ Flexibility=trilemma of the law

Question 18

What says principle of proportionality?

Answer 18

-You must have a legitimate purpose
-The action needs to be apt to achieve the legitimate purpose
-The action needs to be necessary
-No alternative measure achieves the same purpose with less infringement on rights

Question 19

What are the key apsects of Kelsen’s “Pure theorie of Law”

Answer 19

1. Autonomy of law- it’s pure because it isolates law from other disciplines and concerns
2. The Normative nature of law- law is a system of norms. These norms do not derive their validity from moral or factual truths but from their place in a hierarchical system of legal norms.
3. Hierarchy of Norms (Stufenbau thorie)- each lower-level norm deriving its validity from a higher-level norm. The apex of the hoerarchy is the GRUNDNORM-ultimate fpundation of the legal system.
4. positivist methodology
   5.