Natural law, justice, positivism and liberty

Question 1

Ancient Natural law and justice - Ari

Answer 1

Ancient natural law is teleological in nature!

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
-Law is a way to achieve a higher level of morals
-Law isn’t about enforcing, but about convincing someone of what is right and what is wrong

➢From an Aristotelian perspective, natural law is trust in inherent reasonableness,
which is pervasive throughout nature and culture!

From an Aristotelian perspective, natural law is trust in inherent reasonableness, which
is pervasive throughout nature and culture

➢Teleological Aspect!
- Literally: Telos = end/purpose/goal
- Aristotelian: Reference to a final cause (Cf. Aristotle’s “four causes”)

Question 2

Aristotle, Nicomachean Ethics (Fourth Century BC),

Answer 2

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
-nature of the judge is to be a sort of animate justice

Two notions of justice:
1. Iustitia distributiva
2. Iustitia commutativa
Caveat: they are often conflicting!

1. Iustitia distributiva:
   - Suum cuique
   - Focus on the merit of individuals cordance with a just pattern + taking away in a just pattern; ex: taxes, welfare states) (suum cuique= fair in terms of giving everybody what he/she deserves ;focus on the merit of individuals; equals receive equal shares, unequals receive unequal shares; eg. distribution of social benefits, most tax law norms) ——–> suum cuique can be misused (used as justification in NS germany; law is tool, can be wielded for any purpose)
   - Equals receive equal shares, unequals receive unequal shares
   - e.g. distribution of social benefits; most tax law norms
2. Iustitia commutativa:
   a. Contractual justice: equilibrium (e.g. contracts)
   b. Non-contractual justice: iustitia correctiva (e.g. damages)

iustitia correctiva= the suction mirrors a deed (if I break laptop, I pay worth to owner of said laptop)
punivitive justice = not only made whole, but also bad guy gets punished (guy breaks my laptop, pays me back and also gets jailtime)

Question 3

Cicero, De officiis (44 BC), 1, 20, 3:

Answer 3

Justice as rational behavior that is most likely to promote community of people and
preservation of community of life
Sed iustitiae primum munus est, ut ne cui quis noceat, nisi lacessitus iniuria, deinde ut
communibus pro communibus utatur, privatis utsuis.
(But the first task of justice is that no one harms another [neminem laedere], unless challenged by injustice, then that he treats common property as common property, private property as his own.)

Question 4

Augustinus, De civitate Dei (413-426), XIX, 4:

Answer 4

• distinction between divine justice and human justice
• human justice is always imperfect
  Iustitia, cuius munus estsua cuique tribuere - unde fit in ipso homine quidam iustus ordo
  naturae, ut anima subdatur deo et animae caro.
  (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 to the soul […].)

Question 5

Aquinas, Summa Theologica (1265/1266-1273):

Answer 5

Aquinas uses theology and refers to the Aristotelian division into distributive and commutative
justice
- Everybody can find via introspection what the common good is
- Natural law is supposed to lead humanity to a common good
➢ teleological argument!

Question 6

Modern Natural law and Justice:
Hobbes, De Cive (1642); Hobbes, Leviathan (1651):

Answer 6

-modern law in general = focuses in general on the causa efficiens

imagines fictitious state of nature without property, justice or
legislative authority with the possibility of coercion
- homo homini lupus est (a man is a wolf to another man) –
bellum omnium contra omnes (the war of all against all)
- man’s only natural right (ius naturale) is self-preservation

➢Therefore, humans enter into social covenant with each other
(Cf. causa efficiens)

Therefore, humans enter into social covenant with each other:
➢creation of state!
- justice is only possible through governance of a state
- citizens should never question state’s law

• Danger of ppl identifying w the state is that state seemingly can do no wrong, bc the citizens agreed to be apart of it
• Ppl give up personal freedom to become part of state in exchange for protection
• Justice is only possible through governance of a state

Question 7

Other contractual theories:

Answer 7

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

Question 8

Positivism as a general philosophical movement:

Answer 8

• 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 9

Legal Positivism: (types of legal positivism)

Answer 9

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

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

Question 10

Legal Positivism:
1. Positivism of convenience:

Answer 10

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

Question 11

2. Positivism of abstinence

Answer 11

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

(stick to the issue, don’t go astray; about restricting the tunnel of legal argument) (law is what world ought to be, natural science are how it is; (evidence is also how it it; in the world of perception the connecting factor is causation, in the world of the law the connecting factor is attributio) (kelsen= kantian)

Question 12

Legal Positivism:
3. Positivism of inclusion

Answer 12

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

primary= rules; secondary= regulates the change of primary rules), then there is also a rule of recognition ; British legal positivism attempts to find a common denominator for positivism and natural law ( parliamentary sovereignty—–> would be recognised by Holmes, only bc courts do so)

Question 13

Niklas Luhman

Answer 13

• There is no fully normative theory of law.
• rule of recognition lies at the foundation of the entire legal system (notably of the institutions of parliament sovereignty and normativity of the common law.)
• like in other universal law systems the rule of recognition provides an impure fluchtpunkt of the legal system pointing at to be situated beyond the normative “ought to” sphere of the law and hence reaching the sphere of the law and hence reaching the sphere of “being”
• In that sense the rule of recognition is analogous to the grundnorm in the kelsenians sense.

Question 14

Gustav Radbruch: Statutory Lawlessness and Supra-Statutory Law, Oxford Journal of Legal
Studies 1946, 1 (6): 3 values/ interests law should effectuate

Answer 14

Positivism, with its principle that ‘a law is a law’, has in fact rendered
the German legal profession defenceless against statutes that are
arbitrary and criminal.

The law must effectuate three values/interests: justice/legitimacy, legal certainty, flexibility ( its foreseeable, fair and flexible to any given case)

Question 15

Justice/Legitimacy: -

Answer 15

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 16

Legal Certainty:

Answer 16

• needs to be certainty that there is law + 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 ( the more certain a sentence, the better) (needs to be balanced w flexibility and legitimate) (a bit naive, sometimes disservice against rule of law (= without laws that are uncertain, you can no longer have legal discourse// human rights need to be uncertain, bc intentions/opinions change over time,

ex: in ECHR marriage is defined as between man and woman, now many countries have different opinions —> if it was more uncertain, it would be more relevant today + leaves the courts the ability to adjust the law based on society) (law can’t be too certain, so that there aren’t too many loopholes for people to escape the law) (crimes like felonies need to be well define, but crimes like embezzlement need to be uncertain, to make sure people don’t just avoid punishment through loopholes )

Question 17

Purposiveness (originally: Zweckmäßigkeit) and Flexibility:

Answer 17

• 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 18

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

Answer 18

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 19

Theories of arbitration (by Gaia)

Answer 19

1. Monolocal (judgement legitimate bc it aligns w law of the state you are in)
2. Plurilocal (wherever someone wants to rely on arbitrator, that states jurisdiction renders legitimacy to that arbitrator; enforceable in multiple states, don’t need national law to declare decision sufficient )
3. Transnational (legitimacy bc arbitrator has access to international law, which is why he has power to decide trans-border issues) ——> contractual representation of arbitration (arbitrator is legit, bc in contract he is given legitimacy)

Question 20

Hayek, The Constitution of Liberty (1960)

Answer 20

law as abstract and general rules
- law as alternative regulation method to command and custom
- how and why laws are observed is a free and own decision
- knowledge of man-made cause-and-effect relations provides certainty

to be applied universally, i.e. to everybody in the same manner
- this secures freedom under the law
- law may be set by custom or legislator
- consequences are known and therefore the law is kept

Question 20

Liberty,J. S. Mill, On Liberty (1859): harm principles

Answer 20

Harm Principle:
That the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, isto prevent harm to others.

Harm Principle:
The only part of the conduct of any one, for which he is amenable to society, isthat which
concerns others. In the part which merely concerns himself, hisindependence is, of right, absolute. Over himself, over his own body and mind, the individual issovereign.

Harm Principle:
- Only applicable to societies that are capable of being improved by free and equal
discussion
➢ Against dogmatism!