LLB290 Chapter Notes - Chapter 1-2: Age Of Enlightenment, Thomism, Jus Gentium
Introduction to Jurisprudence:
Chapter 1 – Studying Jurisprudence:
Paragraphs [1.015]-[1.016]:
1.015: Law and Morals:
oClose interconnection between religion and moral obligation
oMain difference between law and moral is in language
oDifferences arise as:
Moral sentiments may not be sufficiently developed to translate to law
Law is unable to intervene in some areas
Many questions are morally indifferent
Morals are concerned with subjective factors
1.016: Morals as Part of Law
oSome theorists argue that morals are an integral and inseparable part of the law
oLaws cannot be rejected based merely on their immorality
oInternal nature of the legal system considers immoral rules as inadmissible rather than
annulled
oPositivists: insist that once a law is laid down it cannot be changed because of a conflict
with morality
Chapter 2 – Natural Law:
Paragraphs [2.001]-[2.007]:
2.001: Natural Law:
oImportant weapon in political and legal ideology
oAfforded a moral justification for social, economic and legal systems
oLast 30 years there has been a revived focus on natural law
2.002: What is Natural Law?
oContinuity in definitions, but the concept isn’t static
oDespite different doctrines there has always been an assertion that natural laws exist
oBelieved to be a rational foundation for moral judgement
oTeleological view: man can only be understood as a part of a functioning whole
Adopted by Aquinas and Finnis
Sees man as having needs that can be ascertained by reflecting on his nature & needs
oAttraction to natural law is that moral truths can be reached through pure reason
oPufendorf: natural law is binding because it was willed by God
oSuárez and Grotius: binding because it was willed by God &it was willed by God because it
was good
Grotius: natural law would hold even if there was no God
oMorals are not fixed – all societies have illegalised some killing but there is far from
agreement
oStammler: ideal of justice is fixed but its application must vary with time, place and
circumstance
oHart: set of principles to satisfy our needs and increases chances of survival
oFinnis:
Reinterpretation of Aquinas
Natural law is a reflective grasp on what is self-evidently good for human beings
Objective knowledge of right can be defined by the ‘basic forms of human flourishing’ and
‘basic methodological requirements of practical reasonableness’
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Document Summary
1. 015: law and morals: close interconnection between religion and moral obligation, main difference between law and moral is in language, differences arise as: Moral sentiments may not be sufficiently developed to translate to law. Law is unable to intervene in some areas. 2. 001: natural law: important weapon in political and legal ideology, afforded a moral justification for social, economic and legal systems, last 30 years there has been a revived focus on natural law. Natural law is a reflective grasp on what is self-evidently good for human beings. Objective knowledge of right can be defined by the basic forms of human flourishing" and. Constituted by the unchanging principles of natural law. 2. 003: the attractions of natural law: constant perception of injustice means a constant search for a better system, this is because of three main issues: Problem of defining justice: the force of a law depends on the extent of its justice" .
