Legal Philosophy

1. Legal Philosophy

2. In this course you are expected to express your opinion - which UNISA advises will never be right or wrong provided you back up your opinion with sound arguments. These arguments must have reference to the course material.

3. For example let's start with a simple example : Take the statement "You must stop at a red robot".

4. In this course this statement can be analysed in two ways. The literal meaning of this rule (positive content) vs the normative content (natural law).

5. Positive rule • All drivers shall stop at a red robot.

7. Natural law Normative content of rule is that if you do not stop at a red robot you will cause an accident and injure or worse kill others.

9. CAN YOU SEE THE DIFFERENCE !!!!!! The one aspect is the literal wording and what it implies on the face of it and the latter being the moral issues attaching to the rule.

10. Put differently : the natural law interpretation is wider than the positivist content because it explains what the rule ought to be and looks further than merely what the law is.

11. For example you would be able to conclude :-1. The positive rule is the better one to observe as it is written down (codifed in the Road Traffic Act) and therefore certain whereas the natural law connotations are too vague and uncertain to justify giving credence to them.

12. OR2. The natural law interpretation is favoured as it is an expression of the law as it ought to be and thus fills in the gaps left by clumsy or unjust law-makers.

13. This is but the first step in philosophy - the analysis. The second step is to express an opinion as to which view (later on which philosophy) is the better one.

14. DO NOT SAY “I THINK” …. • SET OUT THE DIVERGENT VIEWS …. • THEN STATE “IT CAN BE SEE THAT” • OR • “It is clear that ….. ” • OR • “The only logical conclusion is …..”

15. PRE-MODERN THINKING Plato, Aristotle, African Philosophy and Aquinas

17. NATURAL LAW : 3 Main Beliefs: Natural order/hierarchy Belief in common good Community is more important than the individual Metaphysical assumptions

18. EARLY MODERN THINKING • Key concepts :“modernism” = author can find right answers himself using scientific methods like precedent, interpretation, social policy. • “individualism” = common good idea rejected and focus on individual rights because society a threat to individual freedom. • “scientific method” = rejection of metaphysical assumptions in favour of empirical evidence and logical deduction (everything questionable).

20. COMMON GOOD replaced with INDIVIDUAL METAPHYSICS replaced with SCIENTIFIC METHODS NATURAL ORDER replaced with SCIENTIFIC WORLD VIEW

21. THE SOCIAL CONTRACT • HOBBES • LOCKE

22. STATE OF NATURE SOCIAL CONTRACT STATE

24. HOBBES • State of naturethe state of nature exists before political states come into being.Man in his state of nature is solitary and brutish – he takes what you can get by force and hold on to it as long as he can. There is a state of war. Everyone against everyone. There is conflict LOCKEState of nature:the state of nature exists before political states come into being.Man in his state of nature lives in mutual co-operation with others. There is a state of harmony

25. HOBBES The purpose of the contract is to stop war and people enter into the contract out of fear.People live in fear of another LOCKEThe purpose of the contract is to protect propertyPeople live in fear of another

26. EARLY MODERN PERIOD CHARACTERISED BY SCIENCE EXPRESSED IN TERMS RATIONALISM

27. Rationalism: Due to advances in science and technology the early modern thinkers no longer believed that the truth could be found in authoritative sources that come from God/gods/natural order. • Instead they insisted that truth must be based on human reason and logic. Pre-modern thinking is now regarded as speculation and the new philosophies are based on Rationalism. • Rationalism can take two forms: • rationalism and • empiricism.

28. The essence of rationalism : the idea that a lone author/thinker can discover the truth merely by using his reason and working out a problem logically. Typically a rationalist will start with some prior insight or idea and then work it out "in his head" in a rational and logical manner. This form of Rationalism therefore does not require any evidence or support from outside – mere reason and logic is enough. The most obvious examples of rationalism are the theories of John Locke and Thomas Hobbes.

30. Both start with an idea (the state of nature) for which there is no external proof. In other words, it is in a sense a figment of their imagination. They are engaged in a thought experiment where they imagine the existence of a state of nature, which then requires a social contract in order to guarantee wither the rights of individuals (Locke) or the protection of the citizens (Hobbes). But there is no proof that such a state of nature or a social contract either existed or was concluded. An example of rationalism from the late modern philosophy is John Rawls's original position and veil of ignorance.

31. - The essence of empiricism is the idea that the truth can only be based on empirical evidence – in other words there must be some external proof that can be observedSTATE OF NATURE -- SOCIAL CONTRACT -------- STATE

33. Rationalism refers to the methods used by the early modern thinkers. Rationalism divorces law and morality and base knowledge on reason. Rationalism is being able to create a view point on man, law and society based on reasoning.

34. Two branches of Rationalism : rationalism and empiricism.

35. Each school of thought attempts to explain how we acquire our knowledge. • Rationalists : knowledge is the starting point which then leads to reason • Empirists : sense experience is the starting point that leads to reason

36. Rationalists • knowledge can be gained through thought independent of sense experience. • knowledge is like maths once you know something you don’t have to do experiments you just inherently know the answer • for example 4+4=8once you know those two figures equal 8 you don’t need to do experiments to know the answer. • A modern day example would be the precedent system or the reasonable person test.

37. Empiricism knowledge is based on facts and evidence reason alone is not enough gain knowledge through sense experience feel touch taste

38. Empiricists claim : • We learned through our senses • Experiments

39. An example of empiricist thinking : an apple falls from a tree, do we know it happened due to gravity or draw a conclusion (hypothesis). Newton derived a conclusion and this is how empiricist thinking works.

40. Examples : Social contractarians - Locke and Hobbes = rationalism • Positivism & Bentham (utility) = empiricism

41. WHICH THEORY WOULD YOU CHOOSE AS THE BETTER ONE ?

42. YOU COULD SAY SOMETHING LIKE THIS : I would submit that I favour the empiricists view if you take a newborn infant and place it in isolation without any social influence how is it meant to draw knowledge from anything. In such an example the isolated infant can only learn through experience, ie: touching a stove will burn your finger.

44. EARLY MODERN (CONTINUE) Positivism Positivism is a descriptive theory. That is, positivists design a framework that both defines and describes law.

45. Positivism emerged as a reaction against natural law, and is now the dominant modern legal theory (except in the USA). It developed in the early 19th Century in response to the assumptions of natural law.

46. Positivism has three underlying theses: • EPISTEMOLOGICAL THESIS There is no necessary link between law and morality “ it shoves morality over to some other discipline”. Positivists do not argue that there is no link between law and morality; they just point out that laws don’t need to be moral in order to be laws. • SOCIAL THESIS All law has identifiable human origins. Positivists examine legal realities “ they categorise, define and distinguish. It is essentially a conservative theory, and ˜reduces thinking to neat filing systems. • COMMAND THESIS All legal systems can be analysed as a set of rules.

47. 1. Epistemological thesisThis comes with the belief that law and morality must be separated. The state doesn’t have a moral function.If you can base law on morals what do you base it on?Bentham, all laws and social institutions had to be measured against Utility: greatest happiness of the greatest number and that this was ‘the measure of right and wrong’

48. 2. The Social thesisLaw is based on an agreement between peopleBentham rejected natural law as the basis for law. He thought that law is based on convention that is on agreement between people. He therefore rejects the idea of the common good and takes the individual as the starting point – it’s the task of the state to ensure the greatest happiness to the greatest number of people and in this way it will indirectly serve the common good.

49. 3. The Command thesisThe idea that law is essentially a command by a sovereign to those who have a habit of obeying those commands. Bentham: insisted that the legislature cannot do anything that is unlawful, but it can do something that will cause the citizens not to obey their commands = he never accepted the idea of an unlimited sovereign.

50. PRACTICAL EXERCISE : • WRITE AN ESSAY AND EXPRESS A VIEW WHETHER DIRECTIVES TO "OBEY THE LAW, DO NOT LITTER,DO NOT SPEED, REFRAIN FROM CORRUPTION, BE KIND TO YOUR NEIGHBOUR, TIP THE CAR GUARD" WOULD CONSTITUTE A NATURAL LAW PHILOSOPHY OR A POSITIVE LAW APPROACH ????? (sic Prof Kroeze Legal Philosophy Assignment for LJU4801)