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law

Natural Law

1.

TOPIC FOR TODAY: “Natural Law” (may not finish it today)
• Review: Hart on the existence of a legal system
• The “Heinz dilemma”
• (dilemma = a situation in which a difficult choice has to be made between two or more alternatives)
• Questions raised by the laws I uploaded yesterday
• Lecture/discussion on ”Natural Law Notes” I uploaded
• Civil disobedience
• Short writing

2.

Review: Hart on the existence of a legal system
We have been discussing Hart.
Today, we are going to look at law from a different perspective.

3.

Review: Hart on the existence of a legal system
To make the difference clear,
I am going to start with a brief review of Hart.

4.

Review: Hart on the existence of a legal system
Please think along with me.
As you do, ask yourselves what you understand,
and what you may still not understand,
about Hart.

5.

Review: Hart on the existence of a legal system
I recommend that you make a note,
either during the lesson or after it,
of anything you still do not understand about Hart,
You may ask me or Maksud about it.

6.

Review: Hart on the existence of a legal system
A legal system
is a set of legal rules for a society,
that are identified by a rule of recognition
that is accepted by the society.
The rules identified by the rule of recognition
are the valid laws of the legal system.

7.

Review: Hart on the existence of a legal system
The acceptance of the rule of recognition
is divided between—
the people in general, and
the law workers who implement the legal system, including:
the legislators, judges, ministry officials,
prosecutors, police, and private lawyers
(=who are not working for the government;
as they are known in Uzbekistan, ”advocates”).

8.

Review: Hart on the existence of a legal system
To show they accept the legal system,
the people in general need only obey the laws.

9.

Review: Hart on the existence of a legal system
To show that they accept the legal system,
the law workers must have the normative attitude
toward the rule of recognition and other secondary rules,
as “common standards of official behavior.”
(the attitude that following the rules is the right thing to do).

10.

Review: Hart on the existence of a legal system
They show this attitude
by using the rule of recognition
in the way they do their jobs
—legislating, judging, making policy, prosecuting, enforcing
advising and representing–
according to the laws.

11.

Review: Hart on the existence of a legal system
When these conditions are satisfied,
we can say the society has a legal system;
their legal system exists.

12.

Questions about Hart on the existence of a legal system
As I said, today, we will look at law from another perspective.

13.

The “Heinz dilemma”
But first,
we will consider a famous problem related to
obedience to law.
It was created in the 1960s
by Lawrence Kohlberg, an American psychologist,
who studied moral development in children.

14.

The “Heinz dilemma”
The problem is called, the “Heinz Dilemma.”
A “dilemma” is a situation
in which a difficult choice has to be made
between two or more alternatives.

15.

The “Heinz dilemma”
The problem is named after the main character,
Heinz (a German name).

16.

The “Heinz dilemma”
I’m sharing it now
because I was reminded of it
by the exchange between Ali and Guzal
last time.

17.

The “Heinz Dilemma”
Ali said all people are “cruel.”
Guzal questioned that.
Ali replied by describing a situation.
Ali, please restate it briefly…

18.

The “Heinz Dilemma”
(As I recall:)
A mother needed food for her children.
She decided the only way she could get the money
was to kill a rich man and take his money.

19.

The “Heinz Dilemma”
Ali offered this woman’s action
—killing another person to take his money—
as an example of cruelty.
(One way to describe “cruelty” is
intentionally causing another person to suffer,
for no good reason.)

20.

The “Heinz dilemma”
I am not going to discuss
whether what the woman did
was cruel.
You will see why Ali’s case
reminded me of the Heinz dilemma,
which I will tell you now.

21.

The “Heinz dilemma”
A woman was dying.
There was one medicine that the doctors said would save her.
It was a form of radium (радий) that a pharmacist (фармацевт) in the
same town had recently discovered.
It cost a lot of money to make the medicine, but the pharmacist was
charging ten times what the medicine cost him to produce.
It cost the pharmacist $200 to produce.
He was charging $2,000 for a small dose of the medicine...

22.

The “Heinz dilemma”
The sick woman's husband, Heinz, went to everyone he knew
to borrow the money, but he could only get about $1,000,
only half of what he needed.
Heinz told the pharmacist that his wife was dying
and asked him
to sell the medicine to him for less,
or let him pay later…

23.

The “Heinz dilemma”
But the pharmacist said:
“No, I discovered the medicine, and I'm going to make money
from it.”
Heinz did not know what to do…

24.

The “Heinz dilemma”
Finally, seeing no other choice,
he broke into the pharmacist's laboratory
to steal the medicine for his wife.
[DH: He did not have Gyges’ Ring.]

25.

The “Heinz dilemma”
[1] Should Heinz have broken into the laboratory
to steal the medicine for his wife?
Why or why not?
[2] Should Heinz be punished for stealing the medicine?
Why or why not?
Adapted from “Heinz dilemma,” Wikipedia, citing Kohlberg

26.

The “Heinz dilemma”
Hart insists
on the importance, for the existence of a legal system,
of obedience to the laws by the people,
and
of the implementation of the law by the law workers, according to law.

27.

The “Heinz dilemma”
Imagine that Hart were here, in our classroom, today.
Now that you have heard, and thought about, the Heinz dilemma,
what would you say to Professor Hart?

28.

Herbert Lionel Adolphus Hart
(known as H.L.A. Hart) (1907-1992)
• “English philosopher, teacher,
and author who was the
foremost legal philosopher
and one of the leading
political philosophers of the
20th century.”
• (From Britannica.com)
• Known mainly for his book,
The Concept of Law (1961)

29.

Questions for Hart
Let’s go on to more questions for Hart…

30.

Questions about Hart on the existence of a legal system
The excerpts of the laws that I uploaded yesterday,
--what I called the “Slave Law,” from the US state of Virginia,
and the“Apartheid Law,” from South Africa,
raise questions about Hart on the existence of a legal system.

31.

Virginia Slave Law
• “In 1705, the Virginia General Assembly…made a declaration that would seal the fate of
African Americans for generations to come...
• "All servants imported and brought into the Country...who were not Christians in
their native Country...shall be…slaves. All Negro, mulatto* and Indian slaves within
this dominion...shall be held to be real estate [=the Legal English for property in
land). If any slave resist his master...correcting such slave, and shall happen to be
killed in such correction...the master shall be free of all punishment...as if such
accident never happened."
https://www.pbs.org/wgbh/aia/part1/1p268.html
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=*An offensive word of the time; a person of mixed white and black ancestry, especially a person with one white
and one black parent.

32.

Virginia Slave Law
What is this act by the Virginia state legislature about?...
What does it do?...
(What are the key words?)

33.

Virginia Slave Law
• “In 1705, the Virginia General Assembly…made a declaration that would seal the fate of
African Americans for generations to come...
• "All servants imported and brought into the Country...who were not Christians in
their native Country...shall be…slaves. All Negro, mulatto and Indian slaves within this
dominion...shall be held [here, = considered] to be real estate [=the Legal English for
property in land). If any slave resist his master...correcting such slave, and shall
happen to be killed in such correction...the master shall be free of all punishment...as
if such accident never happened."
https://www.pbs.org/wgbh/aia/part1/1p268.html
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=*An offensive word of the time; a person of mixed white and black ancestry, especially a person with one
white and one black parent.

34.

Apartheid Law
From “The Reservation of Separate Amenities Act (South Africa, 1953)
(1) Any person who is in charge of or has control of any public premises or any public
vehicle, …may,…set apart or reserve such premises or such vehicle or any portion
of such premises or such vehicle …for the exclusive use of persons belonging to a
particular race or class.
(2) Any person who wilfully enters or uses any public premises or public vehicle
…which has in terms of sub-section (1) been set apart or reserved for the exclusive
use of persons belonging to a particular race or class, being a race or class to
which he does not belong, shall be guilty of an offence and liable on conviction to a
fine not exceeding fifty pounds or to imprisonment for a period not exceeding three
months, or to both such fine and such imprisonment.
https://en.wikisource.org/wiki/Reservation_of_Separate_Amenities_Act,_1953

35.

Apartheid Law
From “The Reservation of Separate Amenities Act (South Africa, 1953)
What was this act
by the South African legislature, about?
What did it do?
(What are the key words?)

36.

Apartheid Law
From “The Reservation of Separate Amenities Act (South Africa, 1953)
(1) Any person who is in charge of or has control of any public premises or any public vehicle,
…may,…set apart* or reserve such premises or such vehicle or any portion of such
premises or such vehicle …for the exclusive use of persons belonging to a particular race
or class.
(2) Any person who wilfully enters or uses any public premises or public vehicle …which has in
terms of sub-section (1) been set apart or reserved for the exclusive use of persons
belonging to a particular race or class, being a race or class to which he does not belong,
shall be guilty of an offence and liable on conviction to a fine not exceeding fifty pounds or
to imprisonment for a period not exceeding three months, or to both such fine and such
imprisonment.
https://en.wikisource.org/wiki/Reservation_of_Separate_Amenities_Act,_1953
=-=-=-=-=-=-=-=-=-=
*Compare apartheid, an Afrikaans word translated as "separateness", literally, ”aparthood”)
https://en.wikipedia.org/wiki/Apartheid

37.

Questions about Hart on the existence of a legal system
Assume that
these two so-called laws were enacted
according to the applicable legal procedures
(so, they are recognized by the rule of recognition).

38.

Questions about Hart on the existence of a legal system
Assume, also, that
the law workers responsible for
making, applying, and enforcing these laws
had the normative attitude towards their legal system.

39.

Questions about Hart on the existence of a legal system
Were the the “Slave Law,” and
the “Apartheid Law,”
valid laws, or not?
Why or why not?
=-=-=-=-=-=-=-=-==-=-=-=-=-=-=
Was the system
of which each was a part,
a legal system or not?
Why or why not?
What would Hart say?
What do you say?

40.

“What would Hart say?”
“…when we move from the statement
that a particular enactment is valid,
to the statement that the rule of recognition of the system
is an excellent one
and the system based on it is one worthy of support,
we have moved from a statement of legal validity
to a statement of value.”

41.

“What would Hart say?”
In other words:
A rule of recognition can be accepted,
and used to identify valid law,
completely independently of
whether the legal system based on it
is worthy of support.

42.

“What would Hart say?”
In short:
A law is valid
if the rule of of recognition and the legal system based on it
are accepted (in the two ways we discussed)
even if the law and the legal system
violate morality.

43.

What do you say about these so-called laws?
Do you say, with Hart, that-Even though these enactments are unjust
they are laws,
but bad laws;
or
Because they are unjust,
they should not be considered laws at all?

44.

”Natural law”
This is the question posed by the “natural law” tradition.

45.

”Natural law”
This is the question posed by the “natural law” tradition.

46.

”Natural law”
What is “natural law”?
(You may answer my questions,
or ask your own questions as I go along.)

47.

”Natural law”
Before I go on, I should say:
I find Hart’s theory of law sometimes hard to understand,
because some of his concepts are not easy to understand.

48.

”Natural law”
I find the theory of natural law to be hard to understand
in a different way-because some of its ideas about the world
are different from the ideas we have about the world today,
(as I will explain).

49.

“Natural law” is also known as…
• Law “according to nature”
--Aristotle, died 322 before the Common Era
• “Law of Nature”
--Stoic philosophers
(from early 3rd century B.C.E.
--Hugo Grotius, Holland, died 1645
• “Common” law
--Aristotle
--Zeno of Citium, died around 262 B.C.E.
• The “universal” law
--Zeno of Citium
--Cicero, died 43 B.C.E
• The “eternal” law
--Cicero
• The “Law of Reason”
--Stoic philosophers
• The ”moral law of nature”
--Cicero
• The “law of virtue”
--Cicero

50.

These names suggest the main features of natural law…
• “Natural” (according to nature)
• “Eternal” (valid always and forever)
• “Common,” “universal”
• According to “Reason”(rational)
• “Moral” (according to morality)
(valid for everyone, everywhere)