NATURAL LAW

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omegaomega
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12352
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NATURAL LAW
Updated:
2010-03-29 12:46:38
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Legal theory
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Finnis, Fuller
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  1. State of Nature: Hobbes
    • Hereby its is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.
    • In such condition there is no place for industry, because the fruit thereof is uncertainty; and consequently no culture of the earth; no navigation, nor use of the commodities that may be improved by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.


    Leviathan, XIII
  2. State of Nature: Locke
    • Man in the state of nature is “absolute lord of his own person and possessions, equal to the greatest, and subject to nobody.”
    • “Though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure.”


    Second Treatise, Chapter IX
  3. Political and Legal Implications
    • Hobbes: any government is better than none; the essence of the government is its strenghth to maintain order in the society; absolute power means strong power
    • Locke: the government is of a limited purpose, that is to preserve people’s lives, liberties, and estates.
  4. Fuller's 8 Principles of Legality
    • Generality
    • Publicity
    • Non-retroactivity
    • Clarity
    • Consistency
    • Possibility to follow
    • Constancy
    • Congruence between law in books and law in action
  5. Lex iniusta non est lex?
    • Laws which conflict with the requirements of natural law lose their power to bind morally.
    • A government which abuses its authority by enacting laws which are unjust forfeits its right to be obeyed—because it lacks moral authority.
    • Unjust laws should be obeyed sometimes to avoid (1) scandal (i.e., a corrupting example to others); or (2) civil disorder.
  6. John Finnis: Basic Forms of Human Flourishing
    • Life
    • Knowledge
    • Play
    • Aesthetic experience
    • Sociability (friendship)
    • Practical reasonableness
    • Religion
  7. Finnis: Basic Requirements of Practical Reasonableness
    • Active pursuit of goods
    • A coherent plan of life
    • No arbitrary preference among values
    • No arbitrary preference among persons
    • Detachment and commitment
    • The (limited) relevance of consequences: efficiency within reason
    • Respect for every basic value in every act
    • The requirements of the common good
    • Following one’s conscience.
  8. Human Rights as essential conditions for human flourishing
    • “There is, I think, no alternative but to hold in one’s mind’s eye some pattern, or range of patterns, of human character, conduct, and interaction in community, and then to choose such specification of rights as tends to favour the pattern, or range of patterns. In other words, one needs some conception of human good, of individual flourishing in a form (or range of forms) of communal life that fosters rather than hinders such flourishing. One attends not merely to character types desirable in the abstract or in isolation, but also to the quality of interaction among persons; and one should not seek to realise some patterned ‘end state’ imagined in abstraction from the processes of individual iniative and interaction, processes which are integral to human good and which make the future, let alone its evaluation, incalculable.”
    • Finnis, Natural Law and Natural Rights, 219-220.
  9. Focal Meaning of Law
    Law, in its focal meaning, refers to “rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of law both amongst themselves and in their relations with the lawful authorities.” Finnis, Natural Law and Natural Rights, 276-277.

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