LAW LJU4801 legal philosophy notes Latest and Completed A
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LAW LJU4801
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University Of South Africa
LAW LJU4801 legal philosophy notes Latest and Completed A
LAW LJU4801 legal philosophy notes Latest and Completed A
LAW LJU4801 legal philosophy notes Latest and Completed A
LAW LJU4801 legal philosophy notes Latest and Completed A
LAW LJU4801 legal philosophy notes Latest and Completed A
law lju4801 legal philosophy notes latest and completed a law lju4801 legal philosophy notes latest and completed a law lju4801 legal philosophy notes latest and completed a law lju4801 legal philosop
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LAW LJU4801
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Pre-Modern Legal Philosophies
What is the meaning of natural law?
The idea that there is a real, pre-political set of rules that provide the yardstick
against which human laws can be measured
Natural law is a metaphysical concept (not something physical)
Cannot be touched, seen or measured
What is the meaning of the common good?
Here the assumption is that the community is more important than the individual
Terms such as “human rights” are inappropriate for this type of thinking
Idea of individual rights being in conflict with the interests of the group is
unthinkable
What is the meaning metaphysics?
Metaphysical assumptions led to the development of the theory of natural law
Metaphysical ideas include beliefs in ghosts, devils and Gods
Ideas of reality beyond the physical meant a separate set of laws exist metaphysically
What is the meaning of natural order?
There is a natural order or natural harmony that applies to social life and the law
In legal thinking, the hierarchical structure of these societies were never questioned
and were justified (Nazi’s, Apartheid)
This meant that laws were often regarded as being beyond criticism
If your laws are from natural order and your order comes from God, then criticism of
laws is indirect criticism of God
The Greek philosophers
Plato
Ideas on law and nature of justice are linked to his theory of knowledge
He wanted to understand how we tell what is true and what is false
His famous story of the cave: Imagine a group of prisoners tied up in a cave in a way that
they can only look at the wall in front of them
Behind them a fire is burning
, Between them and the fire things are moving fast creating shadows on the walls
Therefore prisoners only see the shadows, they do not see the “real things”
Everything we see are the shadows of real things (ideas/ideologies)
He thought our senses were not always reliable (sometimes we think something happened,
but was just a dream)
He believed we could not trust our subjective senses - sight, smell and touch
According to him, political power should be exclusive to philosophers because only they
know the eternal idea of good
Important for everyone to have a specific role in the state
You were either a philosopher-king, a warrior or a worker
If you were born a worker, you never became anything else, your role in society and within
the state was set down for eternity
This is because your station in life was determined by the natural order and no one could
argue with that
Was even worse for women: expected to bare children and obey
His ideas of predetermined rules and laws meant change and transformation was not
possible
He equated change with chaos and decay
He thought that there had to be something that never changes
This is the reason of Eternal Forms in Plato’s theory- in the metaphysical world of forms
nothing ever changes
Tried to give us a fixed, unchanging set of rules by which we can measure whether a specific
law is a good law or not (this gave a sense of certainty in the world)
Plato’s theory of the ideals can be seen in the hierarchical nature of his ideal city
Essentialism: the viewpoint that objects or ideas have an innate, unchanging core of meaning
For example, “justice” means exactly the same in 21st century Africa as it did in Greece more
than 2 thousand years ago
Evident Plato developed a natural law theory in which ideals form the natural law
This form of natural law is known as idealism
What is idealism? The idea that human laws should be measured against ideals of justice
(which is universal and absolute standard)
Aristotle
He was also trying to find answers to the nature of reality and how do we know
Plato’s theory characterised by idealism whereas Aristotle’s thinking can be called Realism
Aristotle was a different type of metaphysical thinker
He believed we could trust our senses because all things have a natural purpose that it is
striving towards
Because of this natural purpose, everything is always moving towards its natural goal (it’s
form)
Form provides the potential of a thing while matter is the actuality of the thing
, Realism: what we see, hear or feel is objectively real
He was an essentialist (things have an essential, unchanging meaning)
In the case of law, justice is used to transform laws into a real purpose to achieve justice (this
is the form)
Natural justice is universal and unchanging while conventional justice is based on agreement
and can be changed
According to Aristotle, there are 2 types of conventional justice:
1) DISTRIBUTIVE JUSTICE means those who are equal should be treated equally and
those who are not equal should be treated unequally (this justice is used when
distributing wealth and honour)
2) CORRECTIVE JUSTICE is used by the courts to correct an imbalance that has occurred
eg: breach of contract
Evident forms play the same role in Aristotle’s thinking like ideals in Plato’s theory
His idea of state, law and politics was tied to his metaphysical belief that the essential
purpose for human beings is to cultivate the virtues needed to live a good ethical life
He said that people become a state not merely to ensure survival, but to make a good life
possible
He reserved this good life for male Greeks only
Man is a citizen who first and foremost participates in the affairs of the community
Moral education of citizens was important
The state is a natural phenomenon (natural for family to grow into a state)
The life of participating in public affairs is the highest life attainable for males
He says the state as a community differs to other communities (hierarchical order)
Medieval philosophy-Aquinas
He was the most important philosopher of the medieval period
He took Aristotle’s ideas and combined them with traditional Christian ideas about the law
and society
He believed that a divine God created the universe and everything in it, including human
beings
God’s will gave everything in his creation a prescribed place or purpose
All the parts of the creation work together towards a single harmony and glorification of God
Every human is part of a household, which is in turn part of a community of human beings
The community of human beings is part of the whole community of the universe that is
governed by divine reason
God rules the universe, he ensures harmony by means of eternal law
Aquinas argued that the natural purpose of man is to be a political animal (take part in social
and political life)
Therefore some kind of political organisation is natural to him
The state is part of God’s design for the world
In this organisation, there is also a hierarchical order that is as natural as the laws of nature
He further developed the idea of natural law
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