Intro to Philosophy of Global Law Semester 1 Midterm (Week 1-3)

legitimacy

existence can be justified with acceptable reasons

what limited and defined medieval science

Christian dogma and Aristotelian scholasticism; rational order coincides with what is naturally good

natural science

the world is a result of arbitrary process that serve no higher good (science of the modern age)

lex mercatoria

law that governed early trade interactions

characteristics of the medieval state

no central authority, no real distinction between political and religious authority

what do capitalist economies thrive on?

security (oft through centralization of power)

what was the beginning of the Westphalian state?

1648 treaty of Westphalia that pacified religious wars

Westphalian State

sovereign state authority exercises highest power over population and territory; domestically this means the state is not subject to church authority and maintains a full monopoly of violence

monopoly of violence

ability to punish those who violate the law

who are the two sovereigns in the tale of two sovereigns?

the individual and the state

what kind of philosopher was Hobbes?

protoliberal

what kind of SON does Hobbes imagine?

complete anarchy

Thomas Hobbes' background?

born as a "twin of fear"->mother gave birth prematurely due to invasion of Spanish Armada, worked for a Cavendish family as a tutor, traveled extensively and met prevalent scientists, lived through English Civil War and Thirty Years War, fled to France as a royalist

what was Hobbes's view of political theory?

argued it should be a science based on human psychology and empirical facts (inspired by the scientific method)

what was Hobbes's central question?

under what conditions are peace and security possible?

Leviathan

1651 work of Thomas Hobbes, Leviathan was a biblical monster and this central image depicts the sovereign as comprised of his subjects who have given him central authority to exercise absolute power and protect his subjects

Methodological individualism

way in which Hobbes understood nature of political organization and law, begins by analyzing humans and concludes that individuals act in their own self interest to avoid death and find security

mechanical materialism

nature and society function like machines, the workings of both can be explained by how individual parts casually impact each other

how was Hobbes anti-aristotalean?

argued that humans are not naturally sociable and that the body politic is highly artificial

was political organization organic for Hobbes?

no

Hobbes SON

in the absence of all political and legal institutions, only the individual remains (this is part 1 of mechanical materialism) and Hobbes imagines human life as "solitary, nasty, poor, brutish, and short" and a state of war of all against all (erga omnes)

was Hobbes a legal positivist?

yes->organized society is not organic to Hobbes

What five assumptions led Hobbes to his SON?

1. humans are interested in self preservation 2. everyone is the judge and executioner in their own case 3. equal natural right of all to everything which limits the individual via competition 4. all are free and equal ergo equally capable and violent 5. mutual distrust

where positive law lacks, what must also necessarily lack?

the consequences and obligations that exist with it leading to an anarchic SON

right of practical reason

rational beings will do everything in self interest and to act contrary to this would be irrational

do economic and private property exist in Hobbes's SON?

no; "no industry because fruit thereof is uncertain"

why do contracts not exist in Hobbes's SON?

mutual distrust and a lack of a third party to mediate (need for state as third party mediator)

why is unlimited freedom self defeating?

in its limitlessness, unlimited freedom infringes on individual freedom

how can people escape Hobbes's SON?

by giving up absolute freedom for common benefit

what guides people out of the SON?

the laws of nature; people's passions, fear of death, desire for commodities; people are rational and understand what is necessary for peace

right of nature

absolute freedom to do whatever one deems necessary for survival

law of nature

moral norms or theorems of practical reason that guide people out of the SON

what is the social contract (Hobbes)?

humans enacting practical reason and giving up freedom to exit a SON

1st law of nature

seek peace and follow it; highly dependent on reciprocity for this to be rational

2nd law of nature

coordination of liberties; one renounces natural right to all things for the sake of peace and self-preservation (reciprocity)

3rd law of nature

pacta sun servanda, the obligation to keep one's side of the contract; only operational with a third party mediator

contractual justice

contracts are the foundation of justice

how is Hobbes's argument for a sovereigns power circular?

it presupposes that the SON has already been exited

how can sovereigns govern contracts?

by exercising greater power than the subjects (i.e. the pain of punishment)

sovereignty by institution

instituted by the people

sovereignty by acquisition

successful conqueror acquires legitimate sovereignty

job of the sovereign (Hobbes)

represents private interest to survival, decide on matters of public peace/safety, enact and enforce public law

if a society is peaceful, what can be inferred?

existence of the social contract

what is the source of law (Hobbes)?

the sovereign

who interprets law (Hobbes)?

the sovereign

why must Hobbes's sovereign be above the law?

think of Aquinas's first mover argument; the sovereign must be above the law because if he was subjected to it, then this would necessarily pluralize the power he holds (back to SON)

when is rebellion justified (Hobbes)?

when one is successful or if there is an abuse of power (can even become morally obligatory)

why is it so grave to go against Hobbes's sovereign?

it is morally opposite to peace, unjust, and a contractual violation of the SON

is Hobbes totalitarian?

no, simply absolutist

proto-liberal aspect of Hobbes

absolutism exists for the sovereign to keep peace, but the right to self defense is never absolved; also right to life in inalienable, no self accusation, equal treatment under the law, defense of social welfare, progressive tax systems, anticipates the welfare state, and views sovereigns power from normative core (power from people)

liberalism

diverse philosophical approach centered on the concept of individual freedom or liberty

what do modern liberals recognize threaten individual freedom

the state and the market economy

why is the basis of liberalism contested?

for what is freedom?

what are the principles of liberalism (10)?

1. Freedom as a primary political value 2. Individualism 3. skepticism about political power 4. The rule of law 5. civil society 6. spontaneous order 7. free markets 8. toleration 9. peace 10. limited government

negative freedom

freedom from/absence of coercion of others in personal decisions

positive freedom

freedom to effectively act upon one's will/presence of self control

what is Isaiah Berlin's quote about the dichotomy of freedoms?

no one's slave and one's own master (negative and postive respt)

methodological individualism

individuals, not groups are the basic entity of society

individualism

all individuals are free and equal under the law, non-discrimination, common humanity->human rights, against medieval hierarchal society of estates

freedom as a primary political value

negative and positive freedom

skepticism about political power

state power must be limited and justified

power

the ability to effect other people's reasons for their actions, liberals believe the scope of individual freedom should be as least affected by power as possible

the rule of law

limits on public authority and protections of individual freedom and rights; no one is above the law and gov actions should be evaluated to the highest legal standard

civil society

the domain of action outside both the economy and the state, voluntary association and interaction between individuals, liberals argue social problems should be dealt with here

spontaneous order

not all order is created purposefully, classical liberals argue that the issue of social order can be resolved through spontaneous interactions among equals

order

the existence of regularity and predictability in the world

free markets

economic interaction should be left to voluntary interactions between individuals, the state should only secure the right to private property and peaceful dispute resolution (liberals argue that free markets also lead to better economic outcomes)

toleration

one should not interfere with what one disapproves of

what was toleration a reaction to

paternalism

paternalism

the policy or practice on the part of people in authority of restricting the freedom and responsibilities of those subordinate to or otherwise dependent on them in their supposed interest

domestic peace

organized society that preserves a maximum individual liberty for all

international peace

free movement of investments, goods, and people

limited government

the govs task is to secure freedoms of individuals and prevent citizens infringing on each others negative freedom

what checks limited government

constitutionalism

Two Treatises of Government

1698 work of Locke

which of the two treatises was more influential?

the second

what does Locke represent?

natural law theory and liberal political theory

what does the first treatise contain

Locke's rebuttal to the theory of divine right of kings and absolute monarchy, specifically against Robert Filmer

what does the second treatise contain

reflections on people's rights to own things, comparison of authority and argument in favor of resistance to unjust authority

what influenced Locke's work?

the American revolution and Thomas Jefferson in the American Declaration of Independence

what can Locke's work justify?

property rights, capitalism, colonialism

Robert Filmer's theory

all authority is derived from divine origins and first man Adam, likewise all power is the same and therefore subjects have an unconditional duty to obey this authority

Locke's rebuttal to Filmer

God gave the earth to free and equal individuals, distinguishes between types of power (paternal, political, master, etc), and posits that the authority of the government rests on the consent of the governed

what is Locke's SON

individuals are self interested, people have natural rights to life, liberty, and property, however they are also rational such that the acknowledgement of these reciprocal freedoms limits them

what preexists in Locke's SON?

reciprocal rights and freedoms

how is negative freedom possible?

through mutual respect of this freedom

what is Locke's view of natural rights and laws

they necessarily implicate each other, "freedom of nature is, to be under not restrain but the law of nature"

when does a state of war occur for Locke?

when there is an attempt to dominate others, disregard natural rights, and violate natural law

is spontaneous social order possible without a sovereign for Locke?

yes

what is the problem with Locke's state of nature if it is already peaceful?

because it is governed by natural law, everyone has the right to punish the irrational who commit moral crimes by violating natural law and these adjudicators could be biased

why does the government exist for Locke?

to act as an impartial third party mediator who interprets and applies natural law, protects right to life, liberty, and property

social contract

origin of political organizations, agreement of a plurality of individuals to establish a government to rule over common affairs; individuals alienate their right to enforce natural law to a third party

how can individual action tacitly express consent to be governed

ex: inheritance is consent to the property laws of the state

consitutionalism

the state exists to safeguard the self-evident rights of man

how could the state be in a state of war against the people?

disrespects the supremacy of the legislature by ignoring laws set by it, prevents assembly of reps, alters electoral procedure sans consent, hands power to a foreign power, systematically violates natural rights

what are the tasks of the commonwealth?

security and defense agency, enact and enforce criminal law, enact and enforce civil law (all other action intrudes into sphere of personal liberty)

what is political obligation dependent on?

the governments performance

is economy natural to Locke?

yes

are politics natural to Locke?

no, it is an artificial creation

how is property obtained for Locke?

it is not given, but made through individual labor