LT - Natural law (CHAPTER 1)
What is natural law?
A set of laws that govern the natural world.
Who is the main proponent of natural law theory?
Thomas Aquinas
Which of the following is a key principle of natural law?
Equality for all.
According to natural law theory, where does law derive its authority from?
Divine or moral order.
Which of the following is NOT a characteristic of natural law?
Subjective interpretation.
According to natural law theory, what is the relationship between law and morality?
Law should always reflect morality.
Which philosopher argued that natural law is based on the inherent nature of humans?
John Locke
What is the purpose of natural law, according to natural law theory?
To promote social order and justice.
Which of the following is an example of a natural law principle?
Freedom of speech.
In natural law theory, what is the relationship between law and justice?
Law and justice are always compatible.
What's the most important idea of natural law?
Law exists preeminently and beyond positive law.
What are two characteristics of natural law?
Objective morality.
Reason.
What is the difference between thick and thin natural law?
Thick natural law is based on the idea that moral principles prevail over any other norms, whereas thin natural law reconciles natural and positive law in which a legal regime complies with all of its (moral) principles.
Which are a part of thick natural law?
The religious tradition.
The liberal tradition.
The ecological tradition.
How do positive and natural lawyers differ in their perspectives on the ultimate source of law being God?
Positive lawyers criticize the notion of God or holy books, arguing that simply because something occurs in a certain way does not necessarily make it morally right or legally binding. On the other hand, natural lawyers believe that inherent values can be derived from observable facts in the world.
What's Hume intake on natural law?
He criticizes the idea of deriving normative claims (what ought to be) directly from descriptive facts (what is). He's often associated with legal positivism.
In which countries, is the religious tradition present in their constitutions?
Ireland.
Poland.
What's the difference between Ireland and Poland's constitution?
For Ireland, God is the ultimate source of truth and righteousness, whereas for Poland includes people who don't share this faith, but respect universal values.
Explain the case "Cairo Court, Public prosecutor v. Ahmed Ezz, 2016" regarding the religious tradition and its connection to thick natural law.
In this case, the Egyptian court, while applying positive law, deviated from its typical role by urging the legislator to amend the law and impose a much stricter penalty, including the death penalty, for embezzlement. This action emphasizes the predominance of religious tradition in shaping the legal stance.
How does the establishment of the UK's Muslim Arbitration Tribunal in 2007 connect to the concept of natural law?
It reflects the acknowledgment that for some individuals, laws can exist beyond those created by the state, emphasizing the precedence of inherent legal principles. In this situation, by applying Islamic Sacred Law instead of British law being an alternative to resolve disputes.
What were reactions against natural law?
In the context of the German case on the patentability of human cells, the attorney adopted a pure positivist approach by detaching from external sources of legitimacy, such as religion, economics, and social impact. He asserted that, based on positive law alone, there are no legal objections.
In the context of gay marriage in France, the petition from the 170 law professors expresses the personal views of the signatories, who shouldn't speak 'on behalf of the law', as they use their titles to express a political viewpoint and do not adopt a purely positivist approach.
Who are some key thinkers associated with the liberal tradition?
John Locke.
Jean-Jacques Rousseau.
What is the fundamental idea behind the liberal tradition?
The fundamental idea is that there are natural rights inherent to humans that must be recognized by the State, and these principles preexist the establishment of the State.
In the liberal tradition, where do these natural rights, according to the liberal tradition, originate from?
They don't necessarily come from God or religion but are inherent in human nature, rooted in human dignity.
How does the liberal tradition view inherent rights in relation to the law?
The liberal tradition asserts that these rights aren't created by law but are simply recognized by it.
Which is an example of liberal tradition?
Declaration of the Rights of Man and of the Citizen (1789).
The Universal Declaration of Human Rights (1948)
Who is Ronald Dworkin, and what is the main focus of his constitutional theory outlined in "Taking Rights Seriously"?
He's a renowned legal philosopher, who emphasizes a natural right to equal concern and respect as the foundation for all rights.
How does Dworkin distinguish between moral rights and institutional rights in his constitutional theory?
Institutional rights derive from positive law and are enforceable in courts, while moral rights, based on principles like equal concern and respect, are not enforceable in courts.
According to Dworkin's constitutional theory, what role do principles play in the legal system, and how do they differ from norms?
The legal system is more than just rules. He asserts that law encompasses principles and values, which refer to what is good. Unlike norms, principles are conflicting values that need to be balanced against each other. Principles do not work in an "all or nothing" way, and finding the right balance is crucial.
In Dworkin's view, what is the distinction between rights and policies?
Rights stem from principles and have the power to switch the balance in one's favor. On the other hand, policies are objectives of general interest that should give way to rights.
How does Dworkin characterize civil disobedience in his constitutional theory?
He asserts that civil disobedience, where individuals don't follow the law for the sake of a higher interest, is not a legal transgression. Individuals may have a moral right to not respect the law, but they must assume the consequences of their actions.
What is jus cogens norms in international law?
These norms are principles so important that states cannot derogate from them. This recognition, starting with the Vienna Convention, restricts state sovereignty, as some treaties should be refused if they violate these fundamental norms.
In the Kadi case, how did the General Court of the EU use the concept of jus cogens to review a UN Security Council resolution?
The General Court of the EU indirectly reviewed the lawfulness of a UN Security Council resolution about jus cogens, identifying the right to a fair trial and the right to property as part of jus cogens. The court concluded that the decision of the EU, and consequently the UN Security Council resolution, wasn't compatible with jus cogens
What is the concept of universal jurisdiction, and how does it relate to Dworkin's constitutional theory?
Universal jurisdiction allows states to prosecute core crimes regardless of where they were committed. This principle suggests that some crimes are so significant that every state has an interest in prosecuting them.
Which point(s) illustrates universal jurisdiction?
The Belgian law of compétence universelle (1993), allows a state to prosecute core crimes committed outside its borders.
The trial of Eichmann in Israel.
The International Criminal Tribunal for the Former Yugoslavia (ICTY), created specifically to try individuals for war crimes and crimes against humanity during the Yugoslav Wars.
Provide a key principle from Immanuel Kant's philosophy related to ecological considerations.
Immanuel Kant's principle, "Act in such a way that you treat humanity, whether in your person or in the person of any other, never merely as a means to an end, but always at the same time as an end".
It emphasizes the ethical treatment of all individuals, aligning with ecological concerns for the well-being of the planet and its inhabitants.
What is ecocide, and should it be considered a crime against peace?
It refers to extensive damage to ecosystems or territories that renders their enjoyment impossible. The question of whether it should be considered a crime against peace is debated. Some legislations, like the USSR's, define massive ecological destruction as a crime against the peace and security of mankind.
What is the updated version of Kant's categorical imperative within the ecological tradition?
It involves acting in a way that ensures the effects of one's actions are consistent with sustaining genuine life on Earth.
How does the ecological tradition differ from classical "natural law"?
It broadens ethical considerations beyond human-centric perspectives, emphasizing the interconnectedness of all living entities and the environment.
What characterizes the ecological tradition, and when did it emerge?
It emerged in the second half of the 20th century, and extends ethical principles beyond humanity to encompass care for the environment.
What is Lon L. Fuller's concept of "thin" natural law, and how does it differ from "thick" natural law?
It aims to reconcile natural law with positivism. It suggests that a legal regime can be considered moral if it complies with specific internal principles. Unlike thick natural law, it doesn't rely on external moral considerations.
Enumerate Lon L. Fuller's 8 demands that constitute the "internal morality of law".
Generality, publicity, non-retroactivity, clarity, consistency, realism, constancy, and congruence.
Provide examples illustrating how Fuller's 8 demands are applied in legal contexts.
In the context of the ECHR, the requirement that restrictions on rights be "prescribed by law" emphasizes clarity, accessibility, and foreseeability.
What is H.L.A. Hart's positivist concession regarding natural law?
That a minimum content of natural law can exist, primarily based on human vulnerability and shared characteristics. This includes restrictions on violence, aggression, property systems, and the need for sanctions, acknowledging a minimal connection between law and natural principles.
Who are some key thinkers associated with thin natural law?
Fuller.
Hart.