LJU4801 STUDY SUMMARY NOTES 2022

LJU4801 STUDY SUMMARY NOTES 2022. Types of philosophers: Pre- Modern: they focused on: a) The common good (community) – rather than the individual b) Their thinking focused on metaphysical/ religious beliefs c) They believed in natural law They include: - Plato - Aristotle - Aquinas - African tradition Modern Philosophies All focus on the individual rather than the community a) Moderns: they tried to replace religious belief with the scientific and rational investigation of law. They reject natural law as metaphysical nonsense that must be replaced with a scientific method They include: - Social contractarians = Hobbes and Locke - Legal positivism = Bentham, Austin and Hart - American Realism b) Late moderns: realized that science alone couldn’t save mankind, they said that values and principles also played a role in the law, but these values and principles must be established rationally = they believe that rational debate is needed about shared values (different from the moderns) They include: - Dworkin - Rawls Post Moderns: have the same idea of crisis, but don’t believe that the crisis can be resolved by looking at universal values = they therefore criticized the idea of a rational legal order and start looking at what the moderns would call irrational modes of thinking Critical Law Studies CC © Legal Philosophy Notes – Semester 1 2017 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 2 They include: - critical legal studies - Feminists They reject the individualism and rationalism of the moderns and instead use deconstruction and other methods to criticize traditional legal thinking Critical Law Studies CC © Legal Philosophy Notes – Semester 1 2017 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 3 PRE-MODERNS Plato Aristotle Aquinas African Philosophies Critical Law Studies CC © Legal Philosophy Notes – Semester 1 2017 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 4 PRE MODERNS CHARACTERISTICS: This era was characterized by small homogenous societies – everyone acts the same and has the same values – they believe that they are the way they are because of nature or a God given order. This type of thinking will not work in a pluralist society were everyone thinks and acts differently. It was believed that it was natural for humans to live in communities and individuals cant question the way society has been structured. Laws in such a community where based to a large extent on morals, which can come from the communities: 1. Belief 2. Culture 3. Religion NATURAL LAW: is a REAL pre political (existed before communities made laws) set of rules that govern human conduct. Natural law is NOT man made, but discovered. Natural law is based on MORALS and automatically bound the community It is the YARDSTICK against which human laws are determined 5 Main beliefs: 1. Natural order (hierarchy) that applies to social life = social arrangements are assumed to be part of nature and therefore cannot be criticized - laws were beyond criticism. It is natural for people to live in communities and the hierarchy created is justified and can’t be questioned by the people. Application in SA: In apartheid SA parliament was sovereign and its laws were beyond criticism as long as the correct procedure was followed in adopting the legislation. 2. The common good = the community is more important than the individual (No individual Human Rights) – individual human rights are inappropriate. The rights of an individual cant be in conflict with the communities rights. 3. Metaphysical assumption: Is a belief in something beyond the physical, it’s a belief in something that you cant see or touch (which isn’t scientifically proven) – God, Ideals, Ancestors. A separate set of laws exists metaphysically and this natural law provided the yardstick for human laws. They believed in........................................