Law and Society

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Law and Society

• Topic 2

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Western political thought

• Ancient (classical) period (800 BC-500 AD) Greek
  and Roman civilisations
• Medieval period (500-1500) Dark Age Middle
  Ages Renaissance
• Modern period (1500-) Protestant Reformation
  Age of Exploration and Discovery English
  Revolution Scientific Revolution Age of
  Enlightenment American and French Revolutions
  Industrial Revolution Colonialism

3
Plato (427-347 B.C.)

• Concept of knowledge
• Knowledge about the physical world
• Moral knowledge
• Truth
• Good
• Beauty
• Justice
• Virtue

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Platos philosopher-king

• The ideal king should be a philosopher
• Lover of knowledge, wise
• Morally virtuous
• Therefore fit to hold political power
• The king would be assisted by guardians
• The ruling elite
• Should practise communism total devotion to
  serving the common good of the community

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Justice according to Plato

• Justice in society each person is doing what
  s/he is by nature most fitted to do
• Classes in society
• Ruler guardians
• Soldiers
• Peasants
• Artisans (craftsmen)
• merchants

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Platos thoughts about law

• Law general abstract rules that are applied to
  particular concrete cases
• Problem mechanical application of rules in a
  rigid inflexible manner may lead to injustice
  in particular cases
• Example rule applied to case 1, case 2, case 3,
  produces just result when applied to case n,
  the result is unjust

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Law and discretion

• Tension between law and discretion (to be
  exercised by ruler/ judge according to
  circumstances of particular case)
• Tension between law and equity (in English legal
  history)
• Ideal scenario philosopher king exercising
  discretion wisely, no need to be strictly bound
  by rules of law (therefore the Rule of Law is
  only a second-best system)

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Aristotle 384-322 B.C.

• Advantages of the Rule of Law
• Human beings subjective, bias, prejudice,
  emotions, desires
• Law impersonal objective reason unaffected
  by desire
• Law based on customs accumulated wisdom of
  many generations
• Law based on views of many participants in the
  law-making process

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Aristotles classification of states
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Roman civilisation

• Contribution of Roman law to the political and
  legal thought of Western civilisation
• Roman history republic empire
• Corpus Juris Civilis Codification in the 6th
  century A.D. by Emperor Justinian
• Western Roman Empire collapsed in 476 AD
• Eastern Empire (Byzantium) survived until 15th
  century (capital at Constantinople/ Istanbul)

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The Middle Ages

• Age of Faith (Western Europe as one Christendom
  Roman Catholic Church)
• St Thomas Aquinas (13th century)
• Eternal law (made by God part of the natural
  order in the universe), including
• Divine law (known by Gods revelation to mankind
  for salvation of souls)
• Natural law (known by human reason basis of
  human law for maintenance of social order)

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Thomas Hobbes (1588-1679)

• father of modern political thinking
• Background 17th century English history
• Political conflict power struggles between King
  and Parliament
• Religious conflict Catholics, Anglican, Puritans
• Social and class conflict
• The English Civil War (1642-1649)

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Hobbes (2)

• The Leviathan (1651) a monster of the sea
• A thought experiment What happens in the State
  of Nature?
• Human nature selfish, full of desires, greedy,
  aggressive
• Result war of all against all life would be
  solitary, poor, nasty, brutish and short

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Hobbes social contract
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Results of having the social contract

• Law and order
• Security of persons and property
• Social order maintained
• Crimes deterred policemen appointed by ruler
  criminals tried and punished
• Disputes among subjects resolved peacefully by
  ruler or judges appointed by ruler

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John Locke (1632-1704)

• Two Treatises of Civil Government
• State of Nature
• Human nature rational
• Laws of nature recognised by human beings
• Natural rights exist
• Right to life
• Right to liberty
• Right to property

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Locke (2)

• Why move from State of Nature to the
  establishment of the State (political society)?
• Because of inconvenience in the interpretation
  and application of the laws of nature
• When a State is established
• Judges interpret and apply the law
• Also Defence against invasion can be effectively
  organised

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Comparison between Hobbes and Lockes social
contracts

• Hobbes
• The parties to the contract are the subjects
  (those to be ruled by the ruler)
• The subjects transfer all their rights and powers
  to the ruler

• Locke
• The ruler is a party to the social contract
• Subjects submission to ruler conditional on
  rulers performance of his obligations under the
  social contract to recognise and protect
  subjects natural rights
• Sometimes right to revolution

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Lockes influence

• American Declaration of Independence 1776
• Liberalism an influential school of thought
• Natural rights
• Political power dangerous
• Abuse of political power tyranny, cruelty,
  oppression

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Liberalism

• Montesquieu (18th century France)
• Political liberty vs. abuse of power
• Man when invested with power will carry his
  authority as far as it will go
• Lord Acton (19th century England)
• absolute power corrupts absolutely

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Liberalism (2)

• Confucius tyranny and the tiger ?????
• Political power as a wild animal
• Project of liberalism to tame it, civilise it,
  to minimise the possibility of abuse
• Institutional devices needed
• To control regulate exercise of polit. power
• To achieve limited government
• Government of laws, not government of men

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Liberalisms institutional devices

• Constitutionalism
• Rule of Law
• Separation of powers
• Checks and balances
• Independence of the judiciary
• Representative government (democracy)
• Bill of rights protection of human rights and
  civil liberties (fundamental freedoms)

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Jean-Jacques Rousseau (1712-78)

• Background 18th century France Age of
  Enlightenment
• Traditional human social and political
  institutions subjected to rational criticism and
  evaluation
• In search of reform and progress to build a
  better world
• Impact French Revolution 1789 slogan of
  liberty, equality and fraternity

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Rousseau (2)

• The Social Contract
• Man is born free, but everywhere he is in
  chains.
• When is political power legitimate?
• How can people be free when they live within a
  State and are governed by laws backed up by State
  coercion?

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Rousseaus social contract
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The question of sovereignty

• Question Where does sovereignty vest?
• (Traditionally, the monarch was the sovereign.)
• Answer theory of the sovereignty of the people
  (popular sovereignty)
• Citizens equal right of political participation,
  including participation in law-making

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The question of freedom

• Question Are people still free after the State
  is formed?
• Answer Yes, if the people are the authors of the
  law The people are free when they obey laws that
  they have made for themselves.
• When such laws are enforced against law-breakers
  they are forced to be free.

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Three kinds of will in society

• Particular will based on the self-interest of
  individuals or groups
• Will of all sum total of particular wills
• General will based on the common interest of the
  community as a whole (the common good)
• The law to be based on the general will

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Strands in Rousseaus thought

• Not only democracy or sovereignty of the people,
  but also
• Patriotism, nationalism, communitarianism
• Emotional attachment to the community
• Sense of belonging
• Individuals surrender to the collective
• Subordination of individuals interest to
  collective interest

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Ambiguity in Rousseaus thought

• Pointing to two possible directions that are very
  different
• Liberal constitutional democracy (e.g. Britain,
  U.S.A.)
• Totalitarianism (totalitarian democracy)
  mobilisation of the masses in support of a great
  leader or single party rule (e.g. Communism in
  Soviet Union, Nazism)

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Karl Marx (1818-1883)

• Marxist interpretation of history (historical
  materialism)
• Classes in society
• Oppression and exploitation
• Domination by the ruling class
• The State
• Private property
• The law

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Stages of social evolution according to Marx
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From capitalism to socialism
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Principles of contribution and distribution under
socialism and communism
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Further development of Marxism

• V.I. Lenin (1870-1924)
• Critique of imperialism
• The communist party vanguard of the proletariat
  dictatorship of the proletariat
• Mao Zedong (1893-1976) adapting Marxism to
  China the peasant revolution
• Deng Xiaoping (1904-1997) socialism with
  Chinese characteristics socialist market
  economy