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LL106 Public Law - Cheat Sheet covering All Units, Lectures, and Reading (First)

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LL106 Public Law (LL106)

Instelling
London School Of Economics (LSE)

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Public Law

COMPLETE SUMMARY for LL106's Public Law! Students have obtained a first and high 2:1 with these notes, which include lecture notes, core reading, further reading, and case notes. Everything you need in one set of concise, comprehensive notes! TOPICS INCLUDE: 1. Obedience to Authority 2. Cons...

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Type College aantekeningen
Docent(en) Jo murkens
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public law
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ll106
full notes
cram
authority
constitutional law
administrative law
parliamentary sovereignty
rule of law
separation of powers
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human rights
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Titel boek:Public Law

Auteur(s):Andrew Le Sueur, Maurice Sunkin

Uitgave:Onbekend
ISBN:9780199284191
Druk:Onbekend

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London School of Economics (LSE)
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LL106 Public Law (LL106)

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Obedience to Authority
Overview

• Why do we obey the law?
o To maintain social harmony and peace
o To avoid war
o To maximize utility
o To show respect to the God and our ruler
o Habit and tradition – but is this an agreement or the state brainwashing us?
o Social pressure
o Expresses rational purpose and ordering of the world

• However there is a contrast between why we DO and why we SHOULD obey the law – science answers HOW but not WHY so we
must look towards a science of law and politics perhaps.

• Political philosophers and theorists such as Locke, Hobbes, Paine and Rousseau have provided explanations of how the relationship
between governors and the governed can be understood.

• Background
o The chain of being, i.e. a basic hierarchy with different levels of laws… divine laws, natural laws and human laws
o Natural rights are different to natural law as natural rights starts with being individualistic
o Rousseau: “man was born free and he is everywhere in chains”
o Authority, legitimacy and obligation must rest on consent
o Must consent to a government in order to be effective
o Governing relationship is found on consent and a notion of a contract, give the government the right to govern
o See natural order corroding and challenged
o Hierarchy hindered
o Emphasizes the importance of the individual

Thomas Hobbes

• Overview
o Gives rational reasons for us to believe in authority and obey it
o Gives us an idea of what the world would be like with no authority
o Portrays this world as bleak in order to show us that we should alienate our natural rights and invest all power in one sovereign
who commands the law and is bound by nothing
o Believes the measure of justice is supplied by laws
o Where law ends – civil liberty ends

• What, for Hobbes, is law?
o “Where there is no common Power, there is no Law, where there is no Law, no injustice… there be no Propriety, no
Dominion, no Mine and Thine distinct; but only that to be every man’s that he can get; and for so long as he can keep
it.”
o No concept of justice because there is no rule order
o He wants to convey a picture without government order to convince us that nationally, we should submit to a common authority
and hence alienate our natural rights

• Hobbes and social contract:
o Everyone by covenant to relinquish their natural rights and submit to the authority of a coercive power
o The (artificial) person created by this covenant is called the ‘sovereign’
o Natural rights are alienated – authority makes law
o Sovereign cannot be bound by this law
o Where law ends – liberty begins

• Hobbes and government:
o The measure of justice is supplied by the laws that the sovereign makes
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, o Law is the command of the sovereign only if its justifiable
o Sovereign cannot be bound by the laws
o Where law ends – civil liberty begins

• How does Hobbes characterise the “natural condition of mankind”?
o Hobbes aims to convey his point by showing us what life would be like without authority or government – “war of every man
against every man”
o This is due to equality of many levels which leads to interspecific competition, i.e. jobs
o Links to the idea of self-preservation
o Hobbes's conception of human nature is simply the sum total of mechanic appetites and aversions, mediated by power struggles.
o Because human appetite is mechanical and resources are limited, when two people have an appetite for the same resource the
natural result is war: "[I]f any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies;
and in the way to their End, (which is principally their own conservation, and sometimes their delectation only), endeavor to
destroy, or subdue one an other."
o Even though people may differ in the strengths of their various natural powers, all people are naturally equal, because even
the weakest is capable of killing the strongest by some means; thus battle is inevitable.
o From this proposition, Hobbes can describe the natural condition of mankind before society, government, and the invention of
law.
o This natural condition, free of all artificial interferences, is one of continuous war and violence, of death and fear.
o This condition is known as the "state of nature," and Hobbes's depiction of this state is the most famous passage in Leviathan:
"[D]uring the time men live without a common Power to keep them all in awe, they are in a condition which is called Warre;
and such a warre, as is of every man, against every man. . . . In such condition, there is no place for industry . . . no Culture of
the Earth; no Navigation . . . no commodious Building; no instruments of moving . . . no Knowledge of the face of the Earth;
no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death;
And the life of man, solitary, poore, nasty, brutish, and short."
o The Hobbesian state of nature is an instructive fiction; a reasoned deduction of what human nature might have been like in a
hypothetical existence prior to any civilization.
o Yet while Hobbes concedes that it never existed in actual history, he asserts that, to a degree, the state of nature is a reality; we
see approximations of it in the lives of the "savage people of America," he says, and Europeans approach it in times of civil
war.
o Further evidence of our natural condition can be seen in our mistrust of others, criminal behavior, and in domination of weak
countries by strong countries.
o In the state of nature, where it is a war of every natural man against the others, no security is possible and life is full of horror.
o But two natural passions enable people to escape the state of nature: fear and reason.
o Fear makes natural man want to escape the state of nature; reason shows him how to escape.
o Reason provides the natural laws that Hobbes develops in the next section, which constitute the foundation for peace.

• What are the principal causes of quarrels?
o Competition: motivated by gain, uses violence, to make a man master of other men’s persons, wives, children and cattle
o Diffidence: motivated by safety and for defence
o Glory: motivated by reputation. For trifles: as a word, a smile, a different opinion and any other sign of undervalue, either
direct in their persons or by reflection in their kindred, their friends, their nation, their profession or their name

• Why is there no industry or culture?
o Because of the uncertain conditions during a time of war which mean that there is no culture of the earth, no navigation, no
use of the commodities that may be imported by sea, no commodious building, no instruments of moving and removing things
that require much force, no knowledge of the face of the earth, no account of time, no arts, no letters, no society and in which
there is continual fear, danger of violent death which all leave the life of man – solitary, poor, nasty, brutish and short

• What causes him to suggest, “notions of Right and Wrong, Justice and Injustice, have there no place”?
o Because in this “war of every man against every man” – there is no common power, there is no law and where there is no law,
there is no injustice. They are all qualities that relate to men in society and not in solitude

• How does Hobbes define liberty?
o The absence of external impediments which may oft take away part of a man’s power to do what he would, but cannot hinder
him from using the power left him according as his judgement and reason shall dictate to him

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,• What does he mean by “natural right”?
o Hobbes declares the condition of man as one of war whereby every man is against every man with everyone being governed
by his or her own reason. Thus in such a condition whereby there be nothing that he can make use of that may not be a help
unto him in preserving his life against his enemies – it follows that every man has a right to every thing, even to one another’s
body

• What general natural laws (or rules of Reason) does he derive from the general “condition of Man”?
o Every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, he may seek and use
all helps and advantages of war

• How are natural rights renunciated?
o By simply not upholding or defending your liberty to that right

• What pre-conditions does Hobbes assume for an enforceable Covenant?
o There must be a form of justice and injustice in relation to the covenant
o There must be some coercive power to compel men equally to the performance of their covenants
o There must be a system of punishments greater than the benefit one would expect by the breach of their covenant

• Why, for Hobbes, is political order not a natural condition?
o Because the natural passions of men have no visible power to keep them in awe and tie them by fear of punishment to the
performance of their covenants

• What is a “Common-wealth”? How is a Commonwealth (or State) formed?
o A ‘commonwealth’ is a multitude of people who together consent to a sovereign authority, established by contract to have
absolute power over them all, for the purpose of providing peace and common defense

John Locke

• Locke and the State of Nature:
o Individuals are free, equal and rational
o Natural right to acquire property
o Natural law operates in a state of nature

• Natural law is ambiguous – why then leave the natural state?
o Need for authority system to formalize rules and enforce them

• How does Locke define liberty?
o The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority
of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power
but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what
that legislative shall enact according to the trust put in it.

• How does he explain the formation of civil society?
o The first instance of social organization, on Locke’s view, is the development of the family, a voluntary association designed
to secure the reproduction of the human species through successive generations. Although each individual in the state of nature
has the right to enforce the natural law in defense of property interests, the formation of a civil society requires that all
individuals voluntarily surrender this right to the community at large. Those who are united into one body and have a common
established law and judicature to appeal to, with authority to decide controversies between them and punish offenders, are in
civil society with one another.

• What is the function of the Commonwealth?
o By declaring and enforcing fixed rules for conduct—human laws—the commonwealth serves as "umpire" in the adjudication
of property disputes among those who choose to be governed in this way (thus given up their rights and can’t do anything
about it) as well as deciding punishments. Furthermore, to preserve ones liberty.

• Why is absolute monarchy inconsistent with civil society?
o It denies the individual all rights, whereas civil society only regulates the actions of men so that they do not overstep their own
rights and take away those of others.
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, o One example that Locke uses to discuss his ideas is that of property, in civil society one may not take away the property of
another against his will, under an absolute monarchy however, the only rights that are respected are those of the individual
designated as the monarch and he may take away another's property if he wishes.
o In a civil society all are regulated by laws that they themselves have agreed upon--they are not in any way having another's
rules/values imposed upon them--and there exists a regulating body that oversees all this and ensures a kind of cooperation
between individuals of the society.
o In addition, the power with which the regulating body is appointed come under 'natural' rights, which are 'god-given'.
o There are certain rights that no individual or body may tamper with, surrender or withhold, such as the right to take another's,
or even one's own life.
o This is unlike the case in an absolute monarchy, in which the term 'rights' may not even be the right word to use--nothing is
designated a right and there are no rules, the monarch simply acts as he pleases, and enforces his will with force.
o Unlike a civil society there is no framework on which actions may be evaluated as good or bad, there is no way of judging any
action as everything the monarch does is right.

• Why would anyone concede their natural liberty and join in society with others?
o Because although natural liberty is a freedom – the enjoyment of it is very uncertain, unsafe and insecure as it is constantly
exposed to the invasion of others since everyone is equal and looking out for themselves.

• What is the objective of this Commonwealth?
o Unity in a commonwealth puts all individuals under government to preserve their property

• What restraints exist on the supreme authority?
o Whoever has the legislative or supreme power of any commonwealth is bound to govern by:
§ Established uniform standing laws that are promulgated and known to the people with one rule for all and these laws
ought to be designed for no other end ultimately but the good of the people
§ They cannot rule by extemporary decrees
§ There are indifferent and upright judges who are to decide controversies by those laws
§ The supreme power cannot take from any man any part of his property without his own consent, e.g. by raising taxes
§ Legislative neither must nor can transfer the power of making laws to anybody else or place it anywhere but where the
people have

• What is prerogative power?
The power to act according to discretion for the public good, without the prescription of the law and sometimes even against it

• For what purpose does it exist?
Because in some governments, the law-making power is not always in being and is usually too numerous and so too slow for the dispatch
requisite to execution

• What protections do the people possess if governments abuse their powers?
If this happens then the government forfeits the power the people has put into their hands for quite contrary ends and it devolves to the
people, who have a right to resume their original liberty

• Locke and constitutional government:
o “The chief end of men uniting into commonwealths is the preservation of their property”
o His image of government is quite different to that of Hobbes who is more authoritarian
o Locke says we do not lose our natural rights but we pool a certain amount to be able to create a constitutional authority
o Government established by covenant of delegation of a portion of our rights – not alienation of all our rights
o The covenant we enter ourselves creates a constitution
o If I hold certain natural rights – I still hold personal liberty
o Reserved rights which are no good to constitution, have own economy i.e. right of religious worship
o Government is a “fiduciary power to act for certain ends”

• Locke and revolution:
o What happens if the government breaches that trust though?
§ Power devolves back to the people – people have the right of legitimate rebellion
§ They have the right to overthrow a government which has breached the terms of the covenant
§ The threat of legitimate rebellion ensures that those in government will not be tempted to abuse their authority
§ Hobbes’ fundamental principle is that there is no limitation on the crowned and parliament but Locke believes that we

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LL106 Public Law - Cheat Sheet covering All Units, Lectures, and Reading (First)

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