Ls490 legal philosophy unit 2

His influential friends who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle were impressed by his intellect and his conversation, and predicted he would go far. Austin was born to a Suffolk merchant family, and served briefly in the military before beginning his legal training. He was called to the Bar inbut he took on few cases, and quit the practice of law in Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the recently established University of London.

Ls490 legal philosophy unit 2

How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it?

John Austin (Stanford Encyclopedia of Philosophy)

The sense and force of these questions, and the main features of the kind of answer given by natural law theories, can be given a preliminary indication.

On the other hand again cf. Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it.

Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy lawlessnessand on the other side tyranny. Such high-level but far from contentless moral principles can be given further specificity in two ways 1 by identifying what, given some broadly stable features of human reality, they entail see 1.

Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action and forbearance can easily be seen to be entailed by the foundational practical and moral principles.

In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.

The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority.

It explains the similarities and differences between the practical authority of rulers including democratic electors acting as selectors of representatives or as plebiscitary decision-makers and the theoretical authority of experts and persons of sound judgment.

It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles at least as they bear on relationships between personsinvolve injustice.

Political theory subsumes, as one of its branches, legal theory. Moreover, he employs, through all his works, a methodological axiom: Knowledge of the factual possibility of say acquiring knowledge, or of losing or saving life, is a datum not really a premise for the understanding that such Ls490 legal philosophy unit 2 possibility is also an opportunity—that actualizing the possibility would be good for oneself and others.

Lewis and most foundational e. In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children which calls for resources outside the family is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings.

There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification by punishment, compensation and restitution of at least the grosser inter-personal injuries of commission and neglect.

To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments.

He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since i laws are products of reason s not passion sii the sovereignty of a ruler or assembly tends to tyranny i.

So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. He shows that these hang together as a set of desiderata or requirements because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc.

This thesis has been elaborated more carefully and on a different basis by Raz and Kramer a and b: It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders Raz—6.

Finnis —4 and Simmonds,have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law. A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible.

And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies.

For it is clear that the procedures and institutions of law are in the service of substantive purposes: That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus] gentium.

Minted by jurists of classical Roman law such as Gaius c. The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary.

In the common law tradition, the legal wrongs picked out by such principles have been called mala in se, as distinct from mala prohibita—things wrong in themselves as distinct from things wrong only because prohibited by positive law—and this distinction remains, for good reason, in use in judicial reasoning.

Ls490 legal philosophy unit 2

Hart can be so read. These issues are discussed further in Section 3 below. His explanation, slightly updated: The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle s —a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom of the law-maker to choose between alternative concretizations, a freedom which includes even elements of in a benign sense arbitrariness.

The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action or forbearance. Rather, the new or amended rule is normative, directive and where that is its legal meaning obligatory because that social fact can be the second premise in a practical syllogism whose first premise is normative: The moral normativity of the principle is replicated in the more specified rule created by the determinatio, even though the latter is not an entailment of the former.

That is to say: Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, e. The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority.Legal Philosophers.

Heather Conley. Kaplan University. Professor Mike Wilson. Legal Philosophy LS Legal Philosophers. The philosophy of law is commonly referred to as jurisprudence. For this assignment, review the theories of the legal philosophers we have studied so far in the course, choose any five of these philosophers and use the Unit 4 Assignment Template to complete your Legal Philosopher Chart.

Philosophy, the Familiar, and the Unfamiliar Aristotle says that philosophy begins in wonder, but that the starting Introduction 2.

mean, about how the various concepts about belief hook up with each one-half of the citizenry is in favor of some legal restraints on abortion, etc.).

LS UNIT 6 ASSIGNMENT- Legal Philosophy 2 I. Proposed Action by the State Legislature Should the death penalty remain active punishment or should it be repealed?

a. General Utilitarian Argument in Favor of Repealing the Death Penalty There are thirty-one states that carry the death penalty as a . Law > Legal Research: $ Past due Criminal Juistice Law > Legal Research: $ Past due Unit 2: Past due LS Legal Philosophy Identify five or more ideas used in utilitarian or retributivist theories and in a paper, explain how these ideas justify punishment.

Evaluate the merits of each approach, giving at least five arguments. The Legal System and the Legal Forms of Business. LAW November 14th The Legal System and the Legal Forms of Business The alternative dispute Save Paper; The Legitimacy of Positive Law Versus Natural Law.

Unit 9 Assignment Final Assignment Kristen Fellows Walker LS – Legal Philosophy Dr. Martin Luther King, Jr.

Welcome to LS – Legal Philosophy. Course Overview. - ppt download