Frank van Dun        Ph.D., Dr.Jur.     -    Senior lecturer Philosophy of Law.


  
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  2004-12-06

(C) 2004
Frank van Dun
Gent, BelgiŽ

 

 

 

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Table of Contents

Theories of Law

Legal Positivism: Austin

Commands and Obligations

The Natural Law Theory: Aquinas

Law and Morality

The Prediction Theory: Holmes

Laws as Norms: Kelsen

Rules: Hart

Fuller's Critique of Positivism

 

The lawful and the legal

Legal positivism and Natural law

Critique of positivism from a natural law perspective

Natural law: metaphysics and moralism versus naturalism

An etymological analysis

Justice and equality

Liberty, freedom and right

Ius and lex

Right, ius, and property

Law and society

Peace, friendship, freedom, and property

Two concepts of society

Two concepts of justice

Main findings

The logic of law

Jurisprudence as the rational discipline of justice

 

The Nature of Law

I. Law and Order Without Government

Varieties of Law

Public Goods vs. Public Choice

II. The Three Functions of Law

Why Three Functions?

Should Law Be Monopolized?

Locke's Case for Monocentric Law

The Lockean Case Against Locke

III. Law vs. Legislation

Socrates on Law

Two Senses of Law

Natural Law and Human Law

Natural Law and Customary Law

IV. The Basis of Natural Law

Is There Room for Natural Law?

Who Has the Burden of Proof?

Objection One: Natural Law Serves No Useful Purpose

Objection Two: There Couldn't Be Such a Thing as Natural Law

Objection Three: Even If There Were a Natural Law, It Would Be Unknowable

Objection Four: Evolutionary Explanations Make Natural Law Obsolete

 

Order and conflict

War and peace

Optimists and pessimists

The question of natural law

The problem of political philosophy

The causes of conflict and war

Conditions of order and peace

Unity

Consensus

Abundance

Respect for law or property

 

Plato

THE REPUBLIC

BOOK I

BOOK II

BOOK III

BOOK IV

BOOK V

BOOK VI

BOOK VII

BOOK VIII

BOOK IX

 

Aristotle

NICOMACHEAN ETHICS

Book V

THE POLITICS

BOOK I

BOOK III

BOOK IV

 

Thomas Hobbes

Leviathan

X. OF POWER, WORTH, DIGNITY, HONOUR AND WORTHINESS

XI. OF THE DIFFERENCE OF MANNERS

XIII. OF THE NATURAL CONDITION OF MANKIND

XIV. OF THE FIRST AND SECOND NATURAL LAWS; OF CONTRACTS

XV. OF OTHER LAWS OF NATURE

XVI. OF PERSONS, AUTHORS, AND THINGS PERSONATED

XVII. OF THE DEFINITION OF A COMMONWEALTH

XVIII. OF THE RIGHTS OF SOVEREIGNS BY INSTITUTION

XXI. OF THE LIBERTY OF SUBJECTS

XXVI. OF CIVIL LAWS

XXIX. OF THOSE THINGS THAT WEAKEN A COMMONWEALTH

XXX. OF THE OFFICE OF THE SOVEREIGN REPRESENTATIVE

 

John Locke

SECOND TREATISE OF GOVERNMENT

Chapter I

II. Of the State of Nature

III. Of the State of War

IV. Of Slavery

V. Of Property

VI. Of Paternal Power

VII. Of Political or Civil Society

VIII. Of the Beginning of Political Societies

IX. Of the Ends of Political Society and Government

X. Of the Forms of a Common-wealth

XI. Of the Extent of the Legislative Power

XII. Of the Legislative, Executive, and Federative Power of the Common-wealth

XIII. Of the Subordination of the Powers of the Common-wealth

XIV. Of Prerogative

XV. Of Paternal, Political, and Despotical Power, considered together

XVI. Of Conquest

XVII. Of Usurpation

XVIII. Of Tyranny

XIX. Of the Dissolution of Government

 

Jean-Jacques Rousseau

THE SOCIAL CONTRACT

Preface

BOOK I

1. SUBJECT OF THE FIRST BOOK

2. THE FIRST SOCIETIES

3. THE RIGHT OF THE STRONGEST

4. SLAVERY

5. WE MUST ALWAYS GO BACK TO A FIRST CONVENTION

6. THE SOCIAL COMPACT

7. THE SOVEREIGN

8. THE CIVIL STATE

9. REAL PROPERTY

BOOK II

1. SOVEREIGNTY IS INALIENABLE

2. SOVEREIGNTY IS INDIVISIBLE

3. WHETHER THE GENERAL WILL IS FALLIBLE

4. THE LIMITS OF THE SOVEREIGN POWER

5. THE RIGHT OF LIFE AND DEATH

6. LAW

7. THE LEGISLATOR

8. THE PEOPLE

9. THE PEOPLE (continued)

10. THE PEOPLE (continued)

11. THE VARIOUS SYSTEMS OF LEGISLATION

12. THE DIVISION OF THE LAWS

BOOK III

1. GOVERNMENT IN GENERAL

2. THE VARIOUS FORMS OF GOVERNMENT

3. THE DIVISION OF GOVERNMENTS

4. DEMOCRACY

5. ARISTOCRACY

6. MONARCHY

7. MIXED GOVERNMENTS

8. ALL FORMS OF GOVERNMENT DO NOT SUIT ALL COUNTRIES

9. THE MARKS OF A GOOD GOVERNMENT

10. THE ABUSE OF GOVERNMENT

11. THE DEATH OF THE BODY POLITIC

12. HOW THE SOVEREIGN AUTHORITY MAINTAINS ITSELF

13. THE SAME (continued)

14. THE SAME (continued)

15. DEPUTIES OR REPRESENTATIVES

16. THE INSTITUTION OF GOVERNMENT IS NOT A CONTRACT

17. THE INSTITUTION OF GOVERNMENT

18. HOW TO CHECK THE USURPATIONS OF GOVERNMENT

BOOK IV

1. THAT THE GENERAL WILL IS INDESTRUCTIBLE

2. VOTING

3. ELECTIONS

4. THE ROMAN COMITIA

5. THE TRIBUNATE

6. THE DICTATORSHIP

7. THE CENSORSHIP

8. CIVIL RELIGION

9. CONCLUSION

 

Karl Marx

ON THE JEWISH QUESTION

Part I

ECONOMIC AND PHILOSOPHICAL MANUSCRIPTS 1844

Private Property and Labour Political Economy as a Product of the Movement of Private Property

Private Property and Communism

Human Requirements and Division of Labour Under the Rule of Private Property

THE GERMAN IDEOLOGY

Part I FEUERBACH

OPPOSTION OF THE MATERIALIST AND IDEALIST OUTLOOK

First Premises of Materialist Method

History: Fundamental Conditions

Private Property and Communism

History as a Continuous Process

 

Human Dignity: Reason or Desire?

I. Human Rights in the Universal Declaration

A Dilemma

Contradictions and Practical Problems

A Hobbesian Predicament

II. Rights in the Classical Tradition

Claims and Rights

Human Dignity and Human Nature

Having Rights and Being a Person

Human Rights, Moral Perfectionism and Natural Law

III. Hobbes and Human Rights

Hobbes’ Apostasy

A Hobbesian Legacy

Concluding Remarks

 

Thomas AQuinas

SUMMA THEOLOGICA (IaIIae 90-100)

On Law

Whether law is something pertaining to reason?

Whether the law is always something directed to the common good?

Whether there is a human law?

Whether promulgation is essential to a law?

Whether there is an eternal law?

Whether there is in us a natural law?

Whether there is a human law?

Whether there was any need for a Divine law?

Whether an effect of law is to make men good?

Whether the eternal law is known to all?

Whether every law is derived from the eternal law?

Whether all human affairs are subject to the eternal law?

Whether the natural law is a habit?

Whether the natural law contains several precepts, or only one?

Whether all acts of virtue are prescribed by the natural law?

Whether the natural law is the same in all men?

Whether the natural law can be changed?

Whether the law of nature can be abolished from the heart of man?

Whether every human law is derived from the natural law?

Whether human law should be framed for the community or the individual?

Whether it belongs to the human law to repress all vices?

Whether human law prescribes acts of all the virtues?

Whether human law binds a man in conscience?

Whether all are subject to the law?

Whether human law should be changed in any way?

Whether human law should be changed, whenever something better occurs?

Whether custom can obtain force of law?

Whether all the moral precepts of the Old Law are reducible to the decalogue?

Whether the mode of virtue falls under the precept of the law?

SUMMA THEOLOGICA (IIaIIae 57-66)

On Right

Whether right is the object of justice?

Whether right is fittingly divided into natural right and positive right?

Whether the right of nations is the same as the natural right?

Whether paternal right and right of dominion should be distinguished?

Justice

Whether justice is the perpetual and constant will to render to each one his right?

Whether justice is a virtue?

Whether particular justice has a special matter?

Whether the act of justice is to render to each one his own?

Whether justice stands foremost among all moral virtues?

Injustice

Whether we can suffer injustice willingly?

Judgement

Whether judgment is an act of justice?

Whether it is lawful to judge?

Whether it is unlawful to form a judgment from suspicions?

Whether doubts should be interpreted for the best?

Whether we should always judge according to the written law?

The parts of justice

Whether commutative and distributive justice are suitably assigned?

Whether the mean is to be observed in distributive as in commutative justice?

Restitution

Whether restitution is an act of commutative justice?

Whether it suffices to restore the exact amount taken?

Whether a man is bound to restore what he has not taken?

Whether he that has taken a thing is always bound to restitution?

Whether restitution is binding on those who have not taken?

Vices opposed to distributive justice

Whether respect of persons is a sin?

Vices opposed commutative justice

Whether it is unlawful to kill any living thing?

Whether it is lawful to kill sinners?

Whether it is lawful to kill oneself?

Whether it is lawful to kill the innocent?

Whether it is lawful to kill a man in self-defense?

Whether one is guilty of murder through killing someone by chance?

Other injuries committed on the person

Whether in some cases it may be lawful to maim anyone?

Whether it is lawful for parents to strike their children, or masters their slaves?

Whether it is lawful to imprison a man?

Whether the sin is aggravated by the fact that the aforesaid injuries are perpetrated on those who are connected with others?

Theft and robbery

Whether it is natural for man to possess external things?

Whether it is lawful for a man to possess a thing as his own?

Whether theft is always a sin?

Whether it is lawful to steal through stress of need?

 

Jeremy Bentham

AN INTRODUCTION TO THE PRINCIPLES OF MORALS ANS LEGISLATION

I. Of The Principle Of Utility.

II. Of Principles Adverse to that of Utility

III. Of the Four Sanctions or Sources of Pain and Pleasure

IV. Value of a Lot of Pleasure or Pain, how to be Measured

VII. Of Human Actions in General

 

Natural Law, Liberalism and Christianity

Introduction

Natural law

Theistic and atheistic religions

The biblical account of natural law

The millenarian challenge

The gnostic challenge

Marx as gnostic

The politics of liberation versus the politics of liberty

Gnosticism as the religion of the modern intellectual

The decline of natural law and liberalism

Liberalism without natural law

 

Natural law and The State

Political and economic methods

Natural law and politics

Economics or politics: which is the master science?

The state as the organisation of the political method

Monopolistic and competitive supply of violence

Lawful and unlawful uses of force

The Rechtsstaat

The Rule of Law

 

 

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