Tutorial 1: Introduction – Ethics, Jurisprudence and Justice



Lecture/Tutorial Notes – Business Law and Ethics TOC \o "1-3" \h \z \u Tutorial 1: Introduction – Ethics, Jurisprudence and Justice PAGEREF _Toc231382963 \h 21.1Introduction to Law, Ethics and Morality PAGEREF _Toc231382964 \h 2What is Law? PAGEREF _Toc231382965 \h 2Ethics PAGEREF _Toc231382966 \h 31.2Jurisprudence: The Natural School of Law PAGEREF _Toc231382967 \h 4Classical Naturalist Philosophers PAGEREF _Toc231382968 \h 4Modern naturalists PAGEREF _Toc231382969 \h 5In the 20th century, there has been debate over the nature of law PAGEREF _Toc231382970 \h 61.3Jurisprudence: Other Schools of Law PAGEREF _Toc231382971 \h 7The Positivists PAGEREF _Toc231382972 \h 7The Pure Theory of Law PAGEREF _Toc231382973 \h 8The Neo-Analytical School PAGEREF _Toc231382974 \h 9The American Realists PAGEREF _Toc231382975 \h 10Feminist Legal Theory PAGEREF _Toc231382976 \h 10Utilitarianism PAGEREF _Toc231382977 \h 101.4The Provision of Justice PAGEREF _Toc231382978 \h 11Tutorial 1: Introduction – Ethics, Jurisprudence and JusticeIntroduction to Law, Ethics and Morality What is Law?Mrs. Dababneh’s Tutorial Defn. Law is a set of rules regulating peoples’ interactions with each other with are enforceable through sanctions.Dr. D. MeltzLaw is a complex system of social control, regulating conduct and governing ruled between various relationships. It adjudicates disputes and punishes offenders, thus preventing vigilantism, violence and the breakdown of social order.H. L. A. Hart Concept of Law“The most prominent general feature of law … is that its existence means that certain kinds of human contact are no longer optional but in some sense obligatory”A law is a social rule which is obligatory and physically sanctionedInfluences on LawReligione.g. the laws of marriage (same sex marriage illegal after religious moralities)Historye.g. land lawPoliticse.g. WorkChoices: Howard implementing them and Rudd reversing them as per their political persuasionsEconomic influences and theorye.g. Trade Practices Act strongly influenced by the economic theory of competitionEnglish “common law”though Australian and British legal systems have since diverged due to GB joining the EU and adopting many of their adversarial law based lawsRegional and int’l developmentse.g. AUSFTA and other free trade agreementsExpectations on the lawLaw is expected to provide the “Rule of Law”, as well as justice in society. This includes the following precepts central to the “Rule of Law”Law applies equally to all citizensOne cannot be punished for actions that aren’t expressly illegalLaw is not retrospectiveTypes of LawThere are two main types of law – the Common Law system (as used in Australia, Britain and many other Commonwealth nations) and the Adversarial system (as used in most of mainland Europe)The Common Law System is based on “common judgments for common crimes”Judge is neutral, elected by peers and decides the sentenceThere is a jury of common man, who decide the facts of the caseThe Adversarial System is based on a series of codified laws (i.e. derived from Roman law, etc.)The judge orchestrates the trial, can ask questionsIn many ways, the minor courts of Australia are moving towards an adversarial system, especially in Family law.EthicsDefining Ethics:Ethics are a moral standard that encode a consensus on social interactions and right and wrong in society (Mrs. Dababneh). Ethics “Inquires into the moral values of human behavior and conduct, analyzing ‘how we ought to act’”.These are derived from Reason, Custom and EducationPeople act ethically to preserve Reputation (the relative esteem in which one is held) and Character within a particular industry or social group. This in turn confers legitimacy.Ethics are the system encapsulating moral values and beliefs through which human actions are judged and moral duties and obligations are established (Dr. D. Meltz)Ethics balances the following attributes:“Right”“Wrong”IntegrityProbityHonestyInstinctWisdomExperienceMoral courageEmpathyBelief in selfInner strengthGreedEgoismAcquisitiveness OpportunismApathyFollyMoral cowardiceThere is current debate on whether or not morality should be legally enforced:ForAgainstMaintaining “public morality”Give authoritative meanings to right and wrongSuppress vicePrevent the undermining of social reasonLaw is unnecessarily restrictiveLaw cannot be justified on the basis of unproven assumptions of moral declineDiscourages the pluralist ideas of right and wrongJurisprudence: The Natural School of LawThe school of Natural Law defines law as a transcendental authority, applying equally to all peoples, regardless of local lawsCicero"True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting"It is based on the idea that there are certain irrevocable principles which are: permanent, allow for mankind's continued existence, discoverable by reason and to which any law must be subject.Furthermore, natural law states that:Laws are discovered through reason, not madeOnly laws that are natural are true laws, although attitudes to "non-true" laws differ amongst different philosophersClassical Naturalist PhilosophersPlatoThe Perfect State is one in which there are no laws, as they restrict human freedoms, but rather a perfect ruler who was able to administer absolute justiceThis is because laws were simplifications which couldn't solve complex casesSince there was no such "perfect ruler", Plato hypothesized that the next best thing was a "law state", whereRulers and courts were subservient to the law, and would judge impartiallyAristotleAristotle claimed that law was "reason free from passion", and that, in lawmaking, moral restriction and potential for development must be balancedFurthermore, Aristotle allowed for a global/transcendental code of natural justice as well as local laws enshrined in "legal justice", although he still states that Natural law had precedentStoic SchoolSyllogismLaws are rationalPeople are rationalTherefore people have a natural inclination towards lawfulnessThis syllogism, like many others; oversimplifies and is inherently flawed due to the fact that both of the original are flawed, and that they are combined in a superficially logical, but deeply illogical manner. E.g. Socrates’ catFurthermore, the stoic school states that "all men should live as equals under the guidance of divine reason, as the law"Cicero then stated that, since laws could be made by tyrants, an "unjust law was no law at all"St Augustine of HippoMan was corrupted by original sin, and since Law was made by man, it was the job of the church to adjudicate between man-made laws and "natural" lawsSt Thomas Aquinas4 parts of lawEternal law (lex aeterna), god's plan for the universeNatural law (lex naturalis), god's laws as discovered by manGod gave humans reason so they could distinguish between good and evil, then, following on with the Stoic School and Aristotle, evil acts are "unnatural", and would therefore be banned under natural law, which is the inference of god's law via reason.Divine law (lex divina) law as delivered by god to man (e.g. the bible)Human law (lex humana), an enactment of reason for the common god (if contrary to the laws of nature, then it is a corruption of law)Aquinas also has an opinion on whether it is required to obey law which is contrary to natural law. He states that a citizen mustDisobey a human law if it conflicts with natural law, unless this would lead to civil unrestDisobey any rule that goes directly against natural law, as the citizen has a greater responsibility to follow "god's law"Furthermore, under Aquinas' model, the Church had the final say over which laws fell in which categoryModern naturalistsReplace "god" with a ruler who has received his authority via a social contract, the content of which varies with different philosophiesOriginally, the citizen submits to a ruler for protection/to prevent anarchy. This ruler is then entrusted to, under pain of populist revolt, rule in a balanced mannerHobbesThat mankind is, in his natural state, anarchicThat mankind submits to leadership/the social contract as it is "necessary for man's self preservations" and that it is a leader's priority to guarantee this; and that it is the government's priority to ensure this "natural right"That it is the task of the law to balance the conflict between the interest of the majority and that of the individualLockeThat mankind is, in his natural state, idyllicThat mankind submits to the social contract in order to secure propertyThat it is the ruler's duty to both maintain social and to maintain the rights which man had "contracted" to have preservedRousseau"man is born free and everywhere he is in chains"The rule of law requires that the citizen submit, in Rousseau's opinion, to the general will; here to allow the citizen/society to reach their potential His theory of surrendering to the general will might be seen as leaning towards totalitarianismIn the 20th century, there has been debate over the nature of lawNatural law has, in direct contrast with one of the precepts of justice, allowed for the retro-active law cases, a la Nuremberg trials, where, whilst morally just, they try the defendants against charges which were not "expressly identified as illegal" before/in their own nationFinnisHumans have three main drives which are also the attributes which make up goodnessLifeKnowledge Practical reasonablenessThis practical reasonableness is the glue of society, and can be divided into the following 6 preceptsThe active pursuit of those attributes which make up goodnessValues and persons are to be treated neutrallyThere must be a proper use of detachment and commitmentThe pursuit of goals may be done efficiently but must not cause irrational harm to othersNo choice should be made which contravenes the common goodMan should be free to follow his conscienceFinally, Finnis argues that disobedience, even where the law is immoral causes such damage that is outweighs everything else?Jurisprudence: Other Schools of LawAside from the Naturalist school, there are several other, quite important schools of legal thought. Whilst the Naturalist school is often described as proscriptivist, many of the others are considered highly descriptive, focusing on describing the actual application of law in society – or within a specific interest group. Descriptivists answer the question “What is the law?”The PositivistsThe positivist legal school of thought believes that it is inevitable, in progression, that law become isolated from morality. They state that naturalists believed that law was only relevant in its religious (and later rational) scope. They counter this, stating that “jurisprudence is concerned with positive laws … as considered without regard to their goodness or badness” (TBook, p14, John Austin).Positivists were primarily concerned withThe law as written by an author to subjectsThe derivation of law’s power from authorityThe “scientific” method; i.e. classifying the law The Pure Theory of LawThe pure theory of law is both descriptivist and deconstructionist; describing not only the way in which the legal system works, but from where it derives its authority ad infinitum. This theory was primarily propagated by Hans Kelsen and can be seen as a part of positivism. “As a theory, it is exclusively concerned with the accurate definition of its subject matter … it is a science and not a politics of law” (Hans Kelsen).E.g. The process of defining a law via the Pure TheoryThe “Grundnorm” being a hypothetical, undefined authority on which all current law is based.Under this system, Kelsen stipulates that a law must be obeyed for the legal system, with the citizen disregarding whether or not it “ought” to be obeyed. This point is highly contentious. The Neo-Analytical SchoolThe Neo-Analytical school posed a theoretical response to the Positivists:PositivistsNeo-AnalyticalThat law is derived from its authority over the populaceSince laws often apply to the authority who makes them, they are more than a mere threatAll laws are punitiveTurning a permissive law into a punitive one is artificial and is only logical in a very superficial mannerLaws are commandsLaws often emerge from customSovereigns are all-powerfulSovereigns are often limited by a constitution and the courtLaw derives its power from the sovereignThe rule of law continues between laws, so there is habitual obedience to the law, not to the sovereign from which the law derives its authorityHart (the primary neo-analytical philosopher) also makes use of a dichotomous key in classifying social rules.Hart states that the following flaws prevent a law from being moral:Failure to establish a rule; being unclearFailure to be made known to the people who it bindsBeing improperly retrospectiveFailure to be understandableBeing contradictoryBeing outside of the jurisdiction/power spectrum of the authority making themFailure to be stable (changing quicker than is traceable and practical)Failure to administer the laws as announcedThe American RealistsThe American Realists were essentially Descriptivists, a la the Positivists. However, instead of describing the legal system as outlined in the law, the American Realists aimed to describe the way in which the legal system worked in reality. This includes describing prejudices, biases and other flaws of process.Roscoe Pound stated that law was a mechanism balancing conflicting interests and securing the maximum of existing wants with the minimum of friction.The two major branches of American realism were:Fact Skeptics (Jerome Frank)Concerned primarily with the decisions and processes of the trial courtRule Skeptics (Karl Llewellyn)Concerned primarily with the decisions of appellate courtsThese have evolved into the more modern movements of Jurimetrics and Judicial Behaviouralism.Feminist Legal TheoryFeminist legal theory tries reconciling two feminist goals; that women be treated equally under the law, and that the legal system takes into account that men and women have different aspirations.Post-Modern feminist theory states that there is no such thing as a unitary female opinion, and, in its extreme, rejects the concept of feminist legal theory.UtilitarianismThe central precept of Utilitarianism is that it aims to please a majority.“Based on principles that conduct should be directed towards promoting the greatest Good of the greatest number of persons” – Jeremy Bentham“Based on principles that conduct should be directed towards promoting the greatest happiness of the greatest number of persons” – John MillThe central flaw of this system is that minorities’ rights become compromised. Bentham’s theory might also support authoritarianism, since it states that the goal is the “greatest good”, which, in this theory, would be judged by a [necessarily imperfect] authority. Mill counters this by stating that the primary goal is the “greatest happiness”, whereby those under the authority are seen to judge the conduct of those with the authority.The Provision of JusticeJustice is primarily concerned with two precepts:That every man is equal before the lawThat one cannot be persecuted for something which is not expressly illegalThese provisions were theorized by Plato and Aristotle, and are considered timeless.Kant, however, stated that justice was not found in equality, but in equality of opportunity. This is harmonious with Milton Friedman’s opinion that “if you put equality before freedom you will get neither, if you put freedom before equality you will get a high degree of both”.The modern legal system, in many ways, undermines these precepts; including judicial bias, social and gender bias in many ways. ................
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