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The Great Philosophers Socrates (470-399 B.C.) the highest form of Human Excellence is to question oneself and others Socrates believed "ideals belong in a world that only the wise man can understand" making the philosopher the only type of person suitable to govern others ideal of a perfect republic led by philosophers Importance Law is governed by reason, not by the whims of rulers Aristotle (384-322 B.C.) Potentiality Use of reason to achieve knowledge of justice Democracy is the end result of reason CYU – The Greeks Are Socrates and Aristotle Naturalists or Positivists? What was the revolutionary concept that both espoused? Why is this important for contemporary law? Is Socrates a democrat? Is Aristotle? Thomas Hobbes (1588- 1679) In the natural condition of mankind, while some men may be stronger or more intelligent than others, none are so strong and smart as to be beyond a fear of violent death. When threatened with death, man in his natural state cannot help but defend himself in any way possible. “Nasty, Brutish, Short” Self-defense against violent death is Hobbes's highest human necessity, and rights are borne of necessity. In the state of nature, then, each of us has a right to everything in the world. Due to the scarcity of things in the world, there is a constant, and rights-based, "war of all against all" (bellum omnium contra omnes). Life in the state of nature is "solitary, poor, nasty, brutish, short" The Leviathan society is a population beneath an authority, to whom all individuals in that society surrender just enough of their natural right for the authority to be able to ensure internal peace and a common defense. This sovereign, whether monarch, aristocracy or democracy (though Hobbes prefers monarchy), should be a Leviathan, an absolute authority. The Leviathan cont’d. infinitely "CONTRACTS WITHOUT authoritative in THE SWORD ARE ONLY matters pertaining WORDS; to aggression, one THE WILL OF THE man waging war on SOVEREIGN MUST BE another, or any LAW" matters pertaining to the cohesiveness of the state. Implications What implications does Hobbes’ theory have for individual rights? Do you agree with his beliefs about how people really behave without law? Say my wife dies in a tragic backgammon accident. I am the sole beneficiary in her will. According to Hobbes, can the government just take all of her money when she dies rather than giving it to me pursuant to her will? Is there an example you can think of in contemporary times of his legal philosophy at work? John Locke Contradicting Thomas Hobbes, Locke believed that the original state of nature was happy and characterized by reason and tolerance. In that state all people were equal and independent, and none had a right to harm another’s “life, health, liberty, or possessions.” Social Contract The state was formed by social contract because in the state of nature each was his own judge, and there was no protection against those who lived outside the law of nature. The state should be guided by natural law. Inalienable Rights Declaration of Independence: thought that all men had the natural rights of life, liberty, the pursuit We hold these truths to be self- of happiness, and evident, estate. He also that all men are created equal, that they are endowed by their developed the Lockeian Creator with certain social contract which unalienable Rights, that among these included the state of are Life, Liberty and the pursuit of nature, government Happiness with the consent of the governed and all the natural rights. What does “inalienable” mean? Say I kill my wife. My wife’s will says that I am the sole beneficiary of her estate, which is in the millions (she invented the post-it note). According to Locke, can I still get all of her stuff? Can people lose their rights? When? Jeremy Bentham and Utilitarianism 1748-1832 argued that the right act or policy was that which would cause "the greatest happiness for the greatest number" Felicific Calculus Felicific Calculus Sum up all the values of all the pleasures on the one side, and those of all the pains on the other. The balance, if it be on the side of pleasure, will give the good tendency of the act upon the whole, with respect to the interests of that individual person; if on the side of pain, the bad tendency of it upon the whole. The math of pleasure? The algebra of ecstacy? What does the following mean? Pmaj > Pmin = good law What if the government forgets to carry the two? Implications for minority rights? Karl Marx and “The Man” 1818-1883 Workers of the world unite!! Materialist conception of history Exploitation Status Quo Law is used by bourgeousie to stay in power and prevent true equality Marx Cont’d Role of philosophy is to overthrow the status quo to a state of true equality Do you understand? Is Marx in favour of capitalism? What does he want to do? What role does law play? If our classroom was communist, who would decide what assignments you would complete? Feminism Andrea Dworkin Law used to subordinate women Marxist in outlook i.e. pornography, rape laws Feminism Cont’d Girls – why do you have to wear a shirt? Would a feminist support the legalization of pornography? Legal Realism It’s all about practicalities, not theory The individual biases of the decision- maker, not principle or theories of thought, are the most important variable in legal decsionmaking. Legal Realism Is Legal Realism naturalist or positivist? What does the law really come down to? If you were accused of a crime, which judge would you want – Angus MacTavish or Ramandeep Sahota?
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