Jurisprudence

§    Divided into 4 categories

§    Look into Aristotle’s teleological approach of acorn and oak. Acorn is the fruit form an oak tree. This is to demonstrate internal causality, so the question of which comes prior logically. In the case of oak tree its final cause causes the development of the acorn into the oak tree. To be compared with Augustine theology theory only the elect are chosen by God to see the truth.

§    Aquinas says this would only apply to the first and second principles only because on the Lex naturalis and Lex Humana could be different as a result of different habit and custom including temperaments.

§    Spinoza:  theory of sub specie aeternitatis and sub specie durationis. Sub specie aeternitatis = under the aspect of eternity what is universally and externally without any reference to or dependence upon the merely temporal portions of reality. Believe in nature and to Spinoza, nature is God.

§    Lloyd commented that it is not always correct to distinguish the primary and secondary principles because the secondary one would have derived from the first. For example the primary principle is usury is contrary to natural law but later it developed out of this principle and provided that since there has been growth of commerce and industry, this principle has changed.

§    He also gave the example on nuclear weapon not to be used in a war and to read together with the concept of Bellum Justum but can this cannot be applicable already when a country has nuclear weapons to use as war weapon and that in extreme situation needs it for self-defense.

§    Roe v Wade banning of abortion as well.

§    Griswold v Connecticut case for banning of contraception pills.

§    Aristotle & Hugo Grotius based on Lex humana justified slavery

§    Can Marxism on economic system for protection of interest be natural law as well

§    Unjust law do not bind men’s morals

§    Aquinas says that a law should be obeyed when to break it would lead or scandal or civic obedience

§    Worried for slippery slope where there are those who disobey the law and others may flout laws which are not morally defective. Example Ghandi’s civil disobedience & Martin Luther King

§    Perversion of law = not law in the fullest sense

§    It needs to be the kind of system deprived by people who didn’t know it might apply to them

§    It’s a kind of thinking which accommodates difference without your specific interests entering

§    You’re not aware o what you are going to get, that is fairness

§    Rawls here developed the concept of “justice as fairness” considering the situation if you are required to draft a social contract, you can never exclude all personal biasness and prejudices

§    Therefore, Rawl here suggests that you should imagine yourself in an original position (original actor) behind the veil of ignorance. Behind this veil, you know nothing of yourself and your natural abilities, or your position in the society, morally equal beings

§    In this position, you would look into fair principles and don’t know whether you are going to be deprived from the law, and so will look into the highest minimum standards of justice in the projected society

§    Take the example when you are cutting the cake and the portion (let me further explained in person)

§    Two types of ignorance; ignorance of personal characteristics & ignorance of condition of society

§    Based on general rational self interest psychology of the original actors’ their principles of justice would be “those person would choose for the design of a society in which his enemy is to assign him his place

§    Look into the application of Freud’s statement (on dreams and unconscious mind) and Copernicus statement (sun is in the centre) compare these and apply to the theory of veil of ignorance

§    In 1968, the Federal Constitutional Court of West Germany rules that they intend to deprive the Nazi laws of its validity because they so evidently clear contradicting fundamental principles of justice and to recognize them, its legal consequence would lead to injustice (so in this matter as compared to Berlin wall shootings case, here validity of law was put to question)

§    Section 3 of Decree provides that property of Jews who have lost their nationality becomes property of the Reich

§    Jewish German women who migrated to Switzerland in 1939 had left securities in a deposit in a German bank can be restored her property due to this retrospective effect

§    Positivist thinking: retrospective legislation should be made to make an old law invalid but the Nazi’s la cannot take a retrospective stand from positivist point of view as thy cannot make their deduction from laws properly made (legislation or any other forms of enacted law through a normal law making process)

1993-1994 (First wave of legislation which focus on limiting the participation of Jews in German public life)

Ø   Laws for the Restoration of the Professional Civil Service April 1933 provided that Jews and politically unreliable civil servant and employees were to be excluded from State service

Ø   Also restricted the number of Jewish students at German School and universities

Ø   Then another legislation to curtail Jewish activity in Medical and Legal professions

Ø   Nazi government revoked the licenses of Jewish Tax Accountants, imposed a 1.5 percent quota on admission of non-aryans to public schools and universities

Ø   Fired Jewish civilian workers from the Army

Ø   Forbade them from performing on stage

1935

Ø   Lawful protection of German Blood and German Honour at the party rally in Nuremberg, announced that they are prohibited from marrying or having sexual relations with persons of German or German related blood

1937-1938

Ø   Government set out to impoverish Jews and remove them from German economy by requiring them to register their property

Ø   Known as First Decree of Reich Citizenship laws

Ø   Cannot be citizen, not entitled to right to vote, cannot hold public office

§    34 years after the Marx death, Vladimir Lenin established the first Communist  State in the Soviet Union in November 1917

§    Mai Ze dong later also established People Republic of China which is known as the Communist China or Red China

§    Both communist state claimed that they follow Marx economic and political doctrines but Marx himself said he is not a Marxist

§    Marx legal theory assumed economics is the basic structure  and politics is the super structure

§    The Slave Owing system developed and the reference could be Hammurabi Code which contain laws on slavery

§    In comparing the Slave system as well as Freudalism, both of it are to protect the property and interest of the ruling class and the benefits from production and exploitation is the source of economics for the state.

§    Claimed religion is used as an opium for the people

§    Marx was wrong to say that under capitalism the working class would get poorer and poorer as the machinery of productive forces develop

§    In most communist societies, not only the state and law does not wither away it become stronger and in many senses even more oppressive than capitalist state

§    An example would be Kerala, which is the first democratically elected Marxist government is better than any other parts in India

§    Marx’s view on morality is a form of ideology and that is arises out of particular stage of development of productive forces and production relations and particular class interest

§    Marx states that morality of law would wither away under communism but Llyod argued that Marxism in this way however does not completely reject morality because this ideology is based on human good and how they come to realised

§    Marx envisages two phases of a future society and Lenin christened them which are socialism (abolishes exploitation) and communism

§    Marx view if law is oversimplified and later Marxists later also realised that the law imposes restraints on the ruling class

§    Marxist argue that law enhances security and moral interest of the family

§    Middle class seems to have monopoly in moral sense and it arises from the ruling classes or the economically more powerful

§    Police etc are also responsible for enforcement of moral legislation as Marxism claims

Short points from internet reading:

1.             Marx rejects the idea of creation of god, and rejected natural law

2.             Marx believed that laws are always the product of human will and more specifically the arbitrary will of a ruling social class

3.             Marx’s dream of equality of wealth has led to gross inequality of powerful government oppression and deification (being treated like a God) have led to equality of poverty

4.             Claimed to have discovered progressive pattern of controlling human evolution that will lead to classless individuals and with this he deprived the state and all laws are merely instruments of class oppression which will disappear when evolution accomplished

5.             His ideas about law expressed mainly in communist manifesto and also talks on morality

6.             Contended dictatorship is the only ideal way for communism to advance

7.             Vladimir Lenin claim that Marx idea do not protect human rights but regard law as a mechanism for holding the other subordinated classes obedient to the one class

8.             His theory of the society is the basic and superstructure

(i)                 Basic structure

-            Concerning and relations of productions

-            On the employer-employee conditions

-            Property relations

-            Technical divisions of labour

-            Where people enter to produce the necessities and amnesties of life

(ii)               Superstructure

-            Concerns matter such as culture

-            Institutions

-            Political power structures

-            Roles

-            Rituals