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SlidesWeek 1 – Law and Morality
“ubi societas, ibi jus” where there is society, there is law
Law History
Code of Hammourabi (1760 BC, currently at the Louvre in Paris)}
o Set of law to ensure justice in his kingdom.
o Some 282 rules, based on custom, that provide a snapshot of life under his rule –
including some fairly severe punishments
o One of the earliest depictions of the concept of “justice” the topic for week 2 of the topic for week 2 of
this course
Solon (500 BC)
o Legislated extensive reforms to help repair the “morality” of Athens – these laws
permeated many aspects of public and private life.
o He wrote the foundation of the Athenian democracy.
The Twelve Tables (c. 449 BC) 529-534 A.C.
Justinian’s Corpus Juris Civilis (Codex, Digesta, Institutiones)
Napoleonic Civil Code (France; 1804) centuries of prevailing Roman law
Clean slate, devoid from religious or empire influence.
1900: BGB (Germany)
Divided in 5, unified the whole country’s customs, varying from territories.
Today: civil law (Romano-Germanic); common law (Anglo Saxon); religious law
What is Law?
Different terms, different meaning, similar in nature:
Values: not legal or binding, but can be contained in laws, ofc legal and binding.
o Core beliefs about what we consider good, bad, acceptable or not, wrong or right.
They can be individual or collective as a society, and deeply subjective.
Norms: should statements, certain modes of conduct depending the circumstances. This
could include habits of treating each other, or dressing. Inherently subjective. They can
also be on a micro or macro scale, like a family level or a society.
Customs practices established in a particular community. Practices common to many in
certain place, time, or situation. Custom predates law, according to the Code of
Hammurabi, supporting that theory.
Principles: are self-evident, represent objective truth or reality set to transcend society’s
relativity. Govern interactions between people.
Rules: may be legal or not. Explicit, understood, binding and generally accepted norms
that prescribe certain behaviors. In a non-legal are, for example, we have the rules that
regulate sports.
,What is law?
Definition 1: a set of universal moral principles in accordance with nature
Definition 2: a collection of valid rules, commands, or norms that may lack any moral
content
Other definitions
Kant: ‘Law and right are the sum total of those conditions by which the free moral will of one
person can be reconciled with the free moral will of another person according to a universal law
of moral freedom. Strict law is the possibility of a reciprocal and universal external coercion
which coincides with the free will of every person according to universally valid law.’
Hegel: law as a realization of the idea of freedom within society
Arendts: ‘an aggregate of rules which determine the essential relations of man living in a
community’
Jhering: law is the total sum of constraining rules which obtain in a politically organized
society / the system of purposes and interests secured by coercive means.
Hart-Fuller Debate
The debate epitomizes the debate between natural law and positivist law. Natural law holds
that morality is the binding source of law’s power, while positivism argues that law and morality
need to be separated.
In 1944 a woman who wished to get rid of her husband denounced him to the Gestapo for
making derogatory comments about Hitler. The husband was sentenced to death by a military
tribunal, according to the law at the time, which prohibited any kind of negative comment about
Hitler. After serving some time in prison, the husband was sent to serve as a soldier against
Russia. When the Allies defeated the Nazi regime, both the wife and the judge who sentenced
him were indicted under the German criminal court for unlawful deprivation of freedom. On
appeal, a German Court of last resort established that the judge should be acquitted, but that
the wife’s sentence should be upheld, because she freely chose to utilize a Nazi law for her own
purposes, a law that ‘offended the sound conscience and sense of justice of all decent human
beings’.
Hart: positivist, formally valid law at the time
Fuller: natural law, the law in question so morally corrupt it could not be considered law.
Fuller: 8 principles identifying law’s ‘internal morality’
Generality possibility of compliance
promulgation (meaning: published?) constancy (consistent)
non-retroactivity congruence (harmony/compatibility)
clarity between rule and action
non-contradiction
Savigny: Law is located in the spirit of the people (Volksgeist) – an integral element of social
fabric and a fundamental feature of common consciousness; the law inheres in the Volksgeist
and should be revealed (and not created) by legislation. Law is found by judges, not legislated
by the state. He is against codification, for custom preceded codification and the collective
,societal values are more volatile than the codification can be written. For this, he was against
the codification movement in Germany.
Rule of Law: Supremacy of law over arbitrary power; Equality before the law; Constitution as a
consequence of the rights of individuals as defined and enforced by the courts.
Nowadays: (broader definition) a principle of governance in which all persons, institutions and
entities, public and private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires measures to ensure adherence to
the principles of supremacy of the law, equality before the law, accountability to the law,
fairness in the application of the law, separation of powers, participation in decision-making,
legal certainty, avoidance of arbitrariness, and procedural and legal transparency. (United
Nations).
Legality: does it adhere to the law?
Legitimacy: does it reflect how the law should be interpreted?
Instrumentality: does it achieve what the law set out to do?
, Week 2 - Justice
Plato: focus is on whether or not the just man is happier than the unjust man.
1st dialogue: Socrates + Caphalus: justice is about telling the true and repaying one’s
debts. Counter argument: how can be that justice if people lie in order to prevent harm.
Lies can be consider just and also unnecessary
Polemarchus: giving people what they deserve, nothing more or nothing less; Socrates
replies how can that be true if we are all fallible and weak, and confuse who are our
friends, therefore we mistake in how to treat people. Base on who is good and who is bad.
Justice is now sating that we have to treat people bad. Polemarchus says that justice is
about giving people what they deserve.
Thrasymachus: justice is who is the strongest person? (political strength)
counterargument: subjective injustice, the strongest person always wins a justice that
only feed the political powerful? Is that better than embracing justice?
Just way of life is the smart, secure and happy way. Socrates refutes all above positions, but still
fails to define what actually is justice.
Socrates + Glaucon + Adeimantus:
o Glaucon: 3 types of good intrinsic, instrumental (making money); intrinsic and
instrumental (health)
o Socrates: justice belong to the third category.
o G+A: challenges Socratic, justice is only desirable for its consequence. Justice is
inherently selfish Humans are selfish, if they can get away of it just action or moral
are performances.
Counterargument Socrates: justice is an essential virtue of good political state and
personal character. A good society is built on wisdom, courage, temperance and justice.
Justice is doing one’s own work, what’s intended to nature.
Aristotle:
What is in accordance with the law of a country is thought to be conducive to the common good
and to the rulers of that country. Citizens must obey to the law in order to be just
Problem: laws are not just to everyone. Don’t have a favorable outcome when applied.
Solution: 2 types of justice
Corrective: restauration to balance, court system, with a civil wrong, provide benefit to who
have suffer (compensation)
Distributive: giving each person what they are own according to merits and need, legislator
work
Justice is proportional not equal, balance of not getting enough and receive to much in cost of
someone else.
Equality: equal treatment applied to equal. Treat likes alike, and difference. (issue to political
democracy)
Political virtue: who contribute the most to the common good, receive a larger share of benefit
Kant: (18th century)
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