Natural law

Main rule of this thought: Lex iniusta non est lex - Unjust law is not a low

The most important are moral values

The constitute of natural law - Human law and Basic moral principles

Natural law is opposition of positive law

Not every law deserves to be called a law. It is not dependent on who it was made by. The real law should fulfill some conditions, which make them content. There has to be an agreement between the human law and moral principles.

Classification of natural law concepts:

It is connected with two questions:
- Why should we obey rules of natural law?

- Where does natural law come from?

There are 4 main explanations:

1. Ontological justification

• We must think of what do we know about existing of human being

• Our world is governed by some rules (survival of the finest)

• We had to obey natural law because the structure of our universe demands it

• We have to obey natural law because the structure of universe is governed by simple rules and these have to be reflected in human law
  
  I. Nazis used this theory
  - our world survival of the principal on domination
  - stronger men will survive
  - they called it master race
  
  II. Liberal concept of this theory
  - liberals very often claim that human beings possessed human nature
  - we can manipulate our nature (pliable)
  - humans are able to choose what is good for them
  - individual liberty is most important and it is the main principal connected with human law

2. Axiological justification (branch of philosophy concentrated on values)

• Natural law is reflection of fundamental, axiomatic, moral values

• Rules of behaviour - think of what kind of behaviour is moral

3. Sociological justification

• There are certain rules of behaviour which are necessary to our society survival

• When we don't obey natural law we can not have any social co-operation

• F.e. nobody should kill the innocent human being

4. Religious justification

• Natural law exist because of God's rules

• This rules if often written in Holy Book.

Does natural law change over time?

Concepts:

1. Static
   - natural law doesn't change over time

2. Dynamic
   - natural law changes
   - depending on social, economic, political, cultural etc. conditions

3. Natural law with changeable content
   - The rules of natural law do not change, but our understanding, constructions, interpretation of these rules change over time
   - for example: abortion, dead penalty

Rules of social co-exists with rules of civil code

Schools of natural law:

1. School of subtending
- natural law contains specific rules of behaviour
- it tells us what is allowed and what is forbidden

2. Theory of procedural natural law
- created by Lon Fuller
- there are certain forma of procedural law making, the way law should be made...

So...

Lon Fuller - Inner morality of law - includes a number conditions of law's existing:

For example:

1. every law should be published, it cannot be kept in secret

2. if we want people to obey law we have to show it to them

3. there cannot be any collisions between legal rules

4. legal should be understandable to people of average intelligence

5. impossibilium nulla obligatio est - law cannot demand the impossible

6. there can be no discrimination without convincing reasons (all people are equal in law)

What should we do if positive law violence natural law?

1. First theory (radical) - Obligation to resist immoral positive law

2. Modern theory - When there is conflict we have to balance consequences, we don't have to resist human law every time

Hugo Grotius (17^th century)

His theory of natural law:
- this law is an order of righteous mind, which indicates that every human action depending on this agreement with human nature is either moral necessary or morally reprehensible
- as a consequence go either orders such an action or prohibits
- natural law is not a suggestion, request - natural law is an order, our duty
- system of natural law is rational system, not a system of arbitrary rules

Righteous - someone capable of telling the difference between good and evil

Human nature's yardstick - If we want to understand natural law, we have to understand human nature first.

Dual nature of human:

1. biological nature (or animal nature)
   - we are all animals, sometimes it's hidden
   - Grothius tried to identify rules of natural law which flow from this nature, and said...
   - ... that this nature has only one rule - self-preservation instinct

2. social nature - appetitus societatis-social instinct

Primary natural law - flown from biological nature - these are rules necessary to survive as one being

Secondary natural law - flown from social nature - these are rules necessary to survive as society

Rules of natural law:

1. Pacta sund servanda - agreements shall be kept

2. Private property shall be respected

3. Crimes shall be punished

4. Harm should be compensate (f.e. medical cost)
- damnum emergens - actual harm
- lucrum cessans - lost profits

Role of God:

Grothius made these observations:

1. Can God change natural law? - No. He can't change natural law as it's obvious that 2+2=4.

2. God can't change natural law without changing human nature.

3. Etiamsi daremus non esse deum - natural law exist even if there is no God or even if God doesn't interfere in human's life.

4. He divorced morality from religion - you can believe in each God or be an atheist, and you can still believe in natural law, moral rules etc.

2 ways to prove the existence of NL :

1. Priori
   - there are certain principles of behavior that we understand automatically, without thinking, by instinct
   - these rules do not need the logical justification (f.e. pacta sunt servant f.e)

2. Posteriori
   - we can observe common thinking among philosophers
   - there is a common moral philosophy - Every great philosopher agrees that f.e. crimes should be punished.
   - natural law is common heritage of all mankind

Samuel Pufendorf (17^th century)

Quite similar to Grothius:

- Natural law is result of human nature, not arbitrary act of God

- Human nature is dual:

Entia physica - biological nature - what we have in common with animals

Entia moralia - spiritual/moral/social nature

1. we investigate human nature ->
2. we discover general rules of natural law ->

3. we make specific branches of law

He thought that there is 5 basic values of natural law:

1. Human dignity shouldn't be violent
   - Human being is only being in whole world who posses both entia physica and entia moralia, so we're different from the rest of living, we are all specialHuman dignity shouldn't be violent
   

2. Equality
   Everyone possesses both of these nature means that all people are equal, this equality can't be translate to f.e. financial justification - equality is lack of unjustified
   

3. Three oppositions between animals and humans can make us recognise other value of natural law:
   I. conflict between determinism and freedom
   animals:
   - animals behaviour is pre-determinate, determinate by internal or external facts,
   - animal don't make choices
   - mechanism of cause and effect
   people:
   - we act because we have to achieve some targets
   - we should have our individual freedom, which shall not be violent
   - concept of individual responsibility of our acts
   
   II. immorality and morality among people
   - animal behaviour should not be judged by moral categories
   - on the other hand human behaviour should be judge
   - physical action should be judged differently depending upon context/circumstances
   - it's impossible to make moral judgement of behaviour without knowing context (f.e. self-defence attack isn't a crime)
   
   III. opposition between uniformity and difference
   - animals don't make choices -> so animals can only formulate one response
   - animals always choose to fight when they feel they can overcome emergency and flight if they feel they won't - it depends on circumstances
   

4. Distinction between good and evil
   - evil actions should be forbidden, shouldn't be permitted
   

5. Tolerance -> Opposition between uniformity and difference
   - human differences should be tolerated
   - different personalities, views, believes, tempers, personal goals
   - this tolerance doesn't mean like all people, nevertheless accept all people
   - tolerance means hate something but leave it to be

These principals of natural law are included in first rules of human law.

As it was said at first - human law guide to different branches of law:

Example from family law - possibility of divorce in marriage - divorce is a part of human liberty

Example from criminal law - there are some circumstances which doesn't make people guilty, f.e. self-defence - it means that only evil behaviour should be banned

In the most of nowadays law systems Pufendorf's simply rules of making law are obligated.

Periods by Pufendorf:

1. Imbecilitas - essence of living before society appeared, no communities, no state institutions
   - according to Pufendorf, in the state of imecilitas there is no natural law, no one respects natural law
   - it could be irrational to expect people are obligated about natural law rules

2. Socialitas - stage of social life, we have stable communities
   - new institutions - private property, religious institutions, fabric tickets
   - during this period we have natural law, natural law now appeared
   - however, natural law isn't obeyed by everyone

3. Humanitas
   - natural law would be obligatory and it would be universally respected
   - everyone treats anyone else like he/she wants to be treated

Criminal punishment - Pufendorf stands there are 4 functions of punishment - consequential character:

1. general prevention - the purpose of punishment is simply to deter society from committing crimes

2. particular prevention - punishment is supposed to deter criminals from doing crime one more time

3. rehabilitation/resocialisation - punishment should involved moral transformation

4. bring justice back - primary role of punishment is justice, it should secure justice

Political philosophy of Pufendorf:

There are two categories of political thought:

1. State of nature - existing before government
   - it would exist without government
   - It is the same as state of imbecilitas

2. Social contract - agreement to create government

Pufendorf thought that in some way people create

3 stages of creating government ruled by social contract:

1. Political community

2. Rules of establish, rules of political coexistence (mainly in constitution)

3. Moment when political rules get transferred, from king to people

Idea of resistance to unjust government is validated by idea that people can change constitutions

- if we have government which violates constitutional rules we can transfer , we can overthrow sovereign

Thomas Hobbes (17^th century)

Philosophical anthropology - radical pessimist
Short, poor, lonely, animal - that's how Hobbes describes human's life:

• All the people in the world are evil, bunch of degeneration.

• We are ruled by destructive passions

• We are cowardly

• Humans beings are essentially weak

• Human beings are equal, because everyone can kill everyone

• Homo homini lupus - man is a wolf for another

Our world is unstoppable war:

Bellum omnium contra omnes - war of everyone against everyone.

His definition of natural law (he had two of them):

1. Natural law - body of rules:
   - which can be rationally discovered/understood
   - which forbid a human being to commit self-destructive acts, because they are able to do it
   - something like self-preservation instinct

2. Natural law - based upon universal moral rule:
   Golden rule - do not do unto others what you don't wish to be done unto you
   - if we commit this self-destructive act ,we go against our own business
   - if we don't respect others, they will also not respect us.
   - obedience in natural law is in our own interest.
   “Sometimes going against to your own interest is in your interest”
   “Sometimes is rational to live irrational”

Natural law tells us to respect others, obey “pacta sund servanda” principals, private property, not to abuse our rights.

To sum up:

If we don't obey these basic moral rules, we commit self-destructive acts.

If we don't respect others, in return others wouldn't respect us.

Hobbes said: obedience of natural law is in our interest. We should obey natural law because it's good for us, because of:

1. Weak explanations - our brains tells us something, but our needs tell us another

2. Genius explanations - sometimes it's irrational to behave rational

Prisoner's dilemma is an example for standing that:

Rational options aren't always advantageous.

The point of prisoner's dilemma is that rational course act sometimes becomes social irrational acts.

Social contract in Hobbs's thought:

• It is agreement between everybody -> everyone has to agree with it

• Main part of social contract - Exchange absolute freedom for security

• We lose our individual rights for security

• The conclusion - government is a model of absolute power (absolutism)

• In order to guarantee our safety a sovereign can do anything, except kill us

• Sovereign can f.e. confiscate our property

• On the one hand we have freedom, on the other hand we have security - we have to make a choice

For Hobbes there can be extraordinary situation, state of emergency, clever sovereign will never make full use of it's power.

In normal situation - smart sovereign will accept the idea of freedom speech, at least limited form of religion freedoms, private property

Everything changes in extraordinary situation, state of emergency - sovereign has to be prepared

What constitutes such emergency?

• Civil war

• Natural disaster

• Foreign aggression

We need different laws for economy crisis and economy prosperity.

Final observation - sovereign decides if there is a normal situation or extraordinary situation.

In other words - we are prepared to exchange our rights for our safety.

Legal positivism

Main principles:

- Dura lex, sed lex - harsh law, but law

- The law is existing as long as it was properly produced by govern

- Independent law from morality

John Austin (19^th century)

1. First question for Austin - The meaning of law - What is law?

“Law” is used in many different situation.

For Austin there is proper and improper sense of law.

Proper - rules of behavior created by one reasonable being while the former has some power over the second one, as well reasonable

Improper - rules of life that do not apply exclusively to human beings

3 kinds of proper law:

1. Law in narrow (“stricto”) sense - laws created by political superiors for political subjects
   - law is an order of sovereign,
   - every law have imperative character,
   - every order includes two elements: implication that addressee of order has to behave in the certain way, if the order isn't followed by an adresive he will be punished
   

2. Natural law - moral rules of behaviour that God created for human beings
   - connected with sensu strict

3. Positive morality - rules created by public opinion
   - f.e. customs, traditions, rules of fashion

4. International public law - in the area of international colligations there are no political superiors
   - all states are equal
   - declaration of good intentions

Law definition by Austin:
- law is an order of a sovereign
- laws are not requests nor suggestions, they are orders

Elements of an order:
1^st) element - indication that addressee of an order has to behave in a certain way (to act or not to act)

2^nd) element - indication that if an order isn't followed an addressee will face certain unpleasantness
- there are no unsanctioned rules, every rule has to have a sanction
- sanction has to always look on particular addressee

True nature of law - Law is connected with force, it means law is not a result with

compromise or dialog.

Austin said : Since every law is an order, it has to mean that every law creates certain duties /obligations.

Law can create duties in two possible ways:
1. express, straight forward - f.e. do not kill, do not go across the street when red light is lighting

2. implicitly - when law on it's face gives only rights or freedoms, at the same time imposes upon everyone an duty to respect other people's rights or freedoms, f.e. everyone have right to free speech and others can't harm it

2. Second question - Who is sovereign?

Political superior is that man/people who are in custom to give legal orders and who people are accustomed to listen and who have actual power to enforce these orders.

Sovereign depends on facts (de facto), not on law (de iure) - it's someone who is actually accustomed to be listened.

Sovereign de iure - these who are defined as sovereign by the legal system

Sovereign de facto - person/people who hold actual power

But generally de facto's sovereigns win.

Austin criticised sovereignty de iure (of people).

Every kind of political system is either an monarchy or aristocracy.

Every democracy is camouflaged oligarchy.

No one stand above actual sovereign.

First conclusion - every sovereign is a potential legal despot, there are no limits for sovereign to make law
- legal absolutism
- every legal system is potential totalitarian

Second conclusion - the essence of British legal theory - rule of law has no place in this theory:

- sovereign can always change every law

- even if sovereign doesn't change law, he is not legal required to follow it
- sovereign decides what constitution means

How can we justify our opposition?
In Austin opinion, we can't do justify our rights, we must make f.e. revolution.

Every law has been created by sovereign.

Statutes over customs:

Every customary law becomes law only if sovereign wishes it to be so, there is no other independent law making authority.
Customs may be laws, but only because sovereign accept it - Sovereign can make law from customs, traditions by accept them

Customs are law as soon, as a sovereign want it to obey

Austin is little similar to Hobbes: Smart sovereign will not abuse his power, it will create law which depends on utilitarian principals.

Georg Jellinek (19^th century)

Known mainly because of his definition of state.

Every state leeds a double existence. It can be both seen from objective and subjective position:

1. Objective dimension
   - every state is a physical thing
   - it has certain territory, natural resources, administration, politicians, population, history, and so on
   - it can be investigated with statistics, history, and so on

2. Subjective (legal) dimension
   - every state possesses a legal system
   - Jellinek formulates a first definition of law: law is a will of state. Law is nothing more than what state wishes to happen.
   - it can be investigated with iurisprudence
   - it base on consists of two methods of investigation:
   a) an analysis of legal rules;
   b) investigation of a relationship between legal rules and social reality

According to Jellinek, to fully get know any governmental system we have to investigate both dimensions.

State consists of three elements:

1. Territory

2. Population

3. Sovereign authority - which is a consequence of domestic legal system, the legitimation from state's inside

He compares state to a corporation (legal person).

When we have this 3 elements, there has to exist a certain connection between members of population and authorities. They cannot exist in separation - otherwise there is no state.

Jellinek distinguishes 4 potential levels of bound between human beings:

1. Mechanical unity (time and space unity) - on this level the only thing that connects people is that they both exist in the same place and time
   - it's not enough.

2. Causatory unity- it's based upon history, on common tradition, common customs, common collective memory
   - it connects the members of this group and makes them different from the members of the other group

3. Formal unity- people are connected by obedience to common institutions

4. Unity of purpose- at this level people are bounded by common goal, purpose
   - it has to be a wish to maintain and to strengthen the government

To sum up:

State exists only if people consider it as valuated.

State begins in our individual consciousness.

If government loses the feeling of loyalty, then we no longer have a state (according to Jellinek).

What should government do? - Governmental duties:

Similar to a state, every individual leads a double existence:

1. First of all, everyone is an individual.

2. However, we are also members of society.

Law has to recognize this double feature of human existence so we should be left alone as individuals - f.e. government cannot violent our freedom of believes or thoughts,
but our life can be regulated if this regulation accords to our social life.
Government may regulate the bounding dimension of our existence.

Two governmental duties:

1. exclusive duties - only performed by government
   - f.e. national defence, foreign policy, law making

2. non-exclusive duties - tasks that government undertakes either undertakes with cooperation with private entities or alone.
   - government should act according to subsidiary principle
   - the government should only deal with issues that cannot be solved by private institutions
   

Jellinek legal theory:
Legal rules and moral rules:

Moral rules have to fulfill 3 conditions. Even if one of these conditions is missed, the rule is not legal. Conditions:

1. Rule has to regulate an action of a human being directed towards another human being

2. It has to be established by outside authority

3. Legal rules have to have a sanction.

Normative power of fact:

The whole legal system starts in our heads. Law is a law only if people consider it to be law.

Guarantees of law:

Guaranty of law is a factor that makes people obey legal rules in everyday life.

Fear of sanction is just an one guaranty of law.

1. Social guarantees
   - they refer to the whole population: morality, culture, religion, tradition, custom
   - according to Jellinek they play the most important role in the life
   - but according to legal positivism such a law is still weak
   

2. Political guarantees
   - they refer to politicians
   - separation of powers
   - that's the reason why politicians obey the law
   

3. Legal guarantees

- they refer to administrative and judicial officials
- f.e. possibility to appeal from any administrative decision, personal responsibility of officials for decision that they made (every decision should be signed)

- independent judges should have a possibility to scrutinize invalid administrative decisions

- possibility to sue a governmental official in civil procedure for damages made in connection to governmental decision

Jellinek believed in rule of law. Law stands upon political authorities.

Gustav Radbruch (20^th century)

Everyone has a certain concept of law.

This image of law is independent from an actual legal system - it is a priority idea.

Radbruch follows Immanuel Kant:

For a human being in order to get know the world, there have to be certain categories of thinking which are independent from the experience.

F.e. an idea of time, of space, cause and effect.

The idea of law consists of 3 elements:

1. idea of justice

- We connect the idea of law with justice

- Treating similar cases similary and different cases differently

2. common good

3. security - the aim of law is f.e. our safety

These 3 elements remain in dialectical connection. There were times when there's a conflict between them.

Radbruch first though that security was the most important element. Later he claimed that in case of a conflict between the justice and other elements, justice should prevail (after 1945).

Seriously unjust laws are nothing more than statutory lawlessness. The idea of justice is supra-statutory law.

Radruchs' theory became important in transitional justice. If you commit a seriously unjust deed, you cannot hide behind the shield of law. - connected with Nazis' acts.

Mainly know beacuse of „lex iniustissima non est lex” - law radically unjust is not a law

Plato (4^th BC)

He was founder of an objective idealism. There are two realities/universes:

1. The world of ideas
   - the world of perfection concepts, perfections
   - not only good things are presented in the world of ideas
   - example: an idea of justice, evil, beauty, perfect note, economy
   - the world we can discovered/evaluation/known with intellect
   - unchangeable, absolute, based upon quantity
   - it can be discovered with reason by a contemplation of this abstract ideas
   - only the wise man /philosopher can see the world of ideas

2. The world of things
   - can be observed with senses
   - it's imperfect world.
   - things are only poor and simply reflections, imitations of ideas.

The distinctions let us classify things which are around us.

There are some general ideas of such things and things fit to it or not.

F. e. cat:

There is a general idea of cat, and if we cut a leg of our cat, there is a question if this is still a cat?
Only the wise man /philosopher can see the world of ideas.

Plato's cave conception (Famous metaphore):
People are imprisoned inside, they are supposed to live in darkness, they see only shadows on the wall, which are not clear and we are not sure what they present.

A philosopher should get know the world of ideas and then should go back to cave and educate the rest of people to let them know how the world outside looks like.

Philosopher is king - because he knows more than others. He is smarter than others.

It's sophocracy - it's ruled of the wise - philosophers should have power because of wisdom.

Concept of political system:

You have to imagine perfectly society and recognize which rules ruled in this society. Our society isn't perfect, so we should search a general values important for our society.

According to Plato we have the constant regression -> things are always getting worse

First of all, according to Plato, we have a constant regression as far as political concept us concern.

Government is a product of convention, create by humans, it's not natural thing, such f.e. earthquake. It means that it's not eternal.

People decide to create government in order to secure certain values, decided that some of their need aren't fulfilled. Government is created by our mutual needs.

What is the most fundamental need?

A need of personal security.

Timocracy/Timarchy - “the rule of the strong”. Authority of philosophers.

It's not perfect system according to Plato, but quite ok, absolutely constant.
A government in which love of honor is the ruling principle.

First degeneration - oligarchy:

• Brave protectors get old and crazy.

• They want to get rich.

• They think that are better than others people.

• They start to enjoy luxuries and goods which robbed on the war. It's oligarchy - our brave warriors turn into fat oligarchs.

In oligarchy there are two groups:

1. Small number of rich people

• They want to maintain their social position and even get richer.

• They like political this political system, they're extremely conservative.

• They feel contempt for the rest of society (the poor masses)

2. Huge number of the poor.

• The important purpose of this group is get rich. As the social category they are unable. They are governed by two feelings:

1. Jealousy - they think the rich do not deserve their social position (that rich people are cheaters, thieves)

2. Hatred - they hate rich

They are revolutionary, they don't respect existing institutions. Two groups are antagonists. Plato said that the poor have to win - revolution.

So it comes…

Next degeneration - democracy:

- the rule of people.

• According to Plato it is the most horrible political constitution.

• State is ruled by idiots.

• This system leads to demoralization of people and anarchy in consequence

• “People become drunk of freedom” (Plato's words).

• Personal wish they dominate law

Democracy = equality.

Plato: It's wrong because our world is built upon hierarchy.

• Our world should base on rules that wise should teach stupid, children should listen to elder.

• The poor use their power against rich - for example confiscate their goods.


Constantly create a problem, make people angry - it's democracy.

Political functions appear - they fight for votes, quarrel.

At some point people get tired of living democracy. (demoralization, constant economics problem)

Then demagogue (populists) appears.
“Give me power (elect me), I do everything what you want”
“I understand, I feel your pain”
“Give me power, so I will make you happy”
He says he will cure everything and asks for power.

When demagogue is given a power…

Last degeneration - tyranny:

- based on the simple rule - one person have strictly absolute power
- and this is the moment when development of political system stops.

Communist regime gets overthrown and set up democracy.

We don't know what happens after tyranny but the bravest can start fighting tyran.

The only way to prevent constant regression is sophocracy - the rule of philosopher.

Sophocracy is supposed to be build like human soul:

1. It's reasonable soul
   - responsible for thinking process (head)
   - located in our brains
   - a social equivalent - philosophers

2. It's courageous soul
   - responsible for our virtues
   - to defend against bad power or danger
   - it's a duty to defend body against dangerous
   - a social equivalent - warriors

3. It's physical soul
   - located in our stomach and below
   - responsible for physical needs
   - a social equivalent - people
   - f.e. sailors - physical work, they should make sure that warriors and philosophers have everything what they need, they should know their place

Every element of the organism have to work for good of whole body.

The community stands above every individual.

It is necessary to develop proper social and state by all groups.

Plato accepts slavery.

The people that work:
The reason for their existence is physical work.

Plato: if a member of this group becomes too rich he might want to join the group of warriors or philosophers. It can't happen. The people should be legally, prevented from owning too much.

Every honest worker will be neither poor neither rich.

The warriors' and the philosophers' education system:

1. First principle: kalos kagathos - health body and mind.

2. Second principle: children should be learned both knowledge and virtue.

1. Until age of 17 - elementary education.

2. 17-20 - physical education - especially art of war.

3. 20 - moment of separation.
   - Smarter students - philosophers. Less smart - warriors.

4. After 20 - 10 years of general studies for smarter.

5. 5 years (final period) to study political philosophy (to the age of 35)

6. 15 years at working on executive structure.

7. 50 years - finally you have all to be a perfect ruler. You have honor, strength, courage, wisdom

Gerontocracy - the rule of old people

There are two dangers by human greed:

1. The aim of having more money. People are allowed to own things. Plato proposed simple question:
   - abolition of having private possession - philosophers are forbidden from having private - all personal needs are secured

2. Nepotism (giving favors from family).
   - in consequence - people who shoudn't be the philosophers, become philosophers. Abolition of having family - no strangers:
   - Children are taken away form their parents, right after their birth, children and parents don't know each other.

Children rise in whole community - all children are ours. (Majka Jeżowska, propsy)

Relationship between wife and husband - the abolition of institution of marriage.

It can distract philosophers from public issues.

What should replace it?

Absolutely no sexual freedom, you cannot have sex.

One day a week sexual activity is permitted with accidental person.

No strong personal attachments even with significant orders, he should think about public issues.

Plato is accused of being pre-totalitarian ideologist.

Plato's theory is supposed to create perfect world. However the happiness of an individual doesn't matter.

A second best system proposed by Plato which is possible to create - typical oligarchy state. Typical oligarchic dictatorship:
- strong censorship,
- prohibition of emigration,
- secret police,
- no religious freedom

This is everything what have every totalitarian regime.

Aristotle (4^th BC)

He rejected Plato's idealism.

He claimed that knowledge comes from experience, so…

He believed in empiricism:

• People should investigate things which really are

• That only based on this investigate

A philosopher can discover general principles

• by inductive reasoning

• from details to generalization

If you simply use inductive reasoning -> you look at the actual society's rules. You know rules that are actually respected by the society.

He was in favor of political realism:

• According to Aristotle, it's impossible to create a perfect government.

• A political shouldn't even try to create a perfect state.

He doesn't believe that exist only one vision of society - each depends on local characteristic, specific. Some kind of society's factors:

1. Kind of territory
   - if your territory is huge, your political system is other than smaller state
   - another question is whether your country have access to see or not

2. National character
   - culture is determined by lot of things, for example, deals, trade relationship etc.

3. Climate
   - if there is plenty of food, water etc.

4. Social structure

5. Social coherence
   - kind of “temperature of political stage”.

6. Political culture

7. Economy in different tomes
   - difficult and easy.

In world there is no absolutely rule in political area.

General classification of political systems:

1. political classification

2. economy classification

Political classification based on two questions:

1. First: Who governs?

1. One person governs

2. Small group of people govern (minority)

3. Everyone govern (majority)

2. Second: In whose interest is political power wielded?

1. In the purpose common good - this system is describe of such a very good political system

2. Political powers helps interests of the rulers, ruling class - bad political system

Good political system:

1. Monarchy - tyranny

2. Aristocracy - oligarchy

3. Politeia or democracy

Generally speaking monarchy is good, but one of kind monarchy can work out and another don't work out.

Economy classification:

Aristotle was the first thinker, who used economy as a classification factor

Which social group has a political power? - 3 possibilities:

1. Oligarchy - the always rich - the rule of the rich

2. Democracy - the rule of the poor

3. Politeia - the rule of middle class - the best economic state

A divided society:

1. The group of the rich, the magnificent ones
   - they are demoralized on the top
   - they consider themselves better than the rest of the society
   - they believe different rules are applied to them

2. Poverty
   - poor people, working every day with no economical security
   - they only care about they physical
   - they dislike the richest, they are jealous
   - they consider the magnificent to be such a parasites
   - they are unwilling to compromise

3. The middle class
   - all the virtues of magnificent people
   - they still have to work in order to survive, but they have basic economical secure
   - the members may dream one day of becoming the magnificent ones

In politeia we have stability but also the members of middle class want to test some new solutions from time to time.
They are opened for rational arguments.
They on the one hand want to engage to debate on public affairs, but on the other hand, they are not as vain as the magnificent ones.

Theory of natural law by Aristotle:

He separated natural law from the laws of nature.

The laws of nature - relates to biological affairs.
Natural law - consists of rules, which are necessary to human survive.
- It's exclusive for human, it don't concern plants or animals.

Three fundamental principles:

1. Children should obey their parents.

2. Slaves should obey their masters.

3. Wives should obey their husbands.

General definition of justice: to give everyone what he/she deserves.

This principle change it's meaning in different spheres of life.

3 subcategories of justice:

1. Distributive justice
   - Give everyone he/she deserves according to his/her social position.

2. Commutative justice
   - Give everyone what he/she deserves according to his/her actions.

3. Legal justice
   - Give everyone what he/she deserves according to law.

Aristotle recognized that different in different spheres of life other kinds of justice should take priority.

Liberalism

Hygroscopic idea of liberalism - liberalism broadly attaches itself to other political doctrines.

1. First distinction - National character of word “liberalism:

In USA we can use “liberal” in order to naming Barack Obama.

French liberalism - skeptical about religious issues.

2. Second distinction of liberalism bases upon issue of subject:

1. Political liberalism - emphasis upon political rights and freedoms of individuals (freedom of speech, religion, political participation etc.)

- idea of constitutionalism - certain political rules should be expressed in constitutions and its rules shouldn't be changeable easily

- separation of powers

- rule of law - government should obey law, their actions should be justified

- democracy

2. Economic liberalism - respect of private property

- free market institutions

- free trades change

- low taxes

3. Cultural liberalism - main component is idea of tolerance

- people have other concepts of good life

- pluralism is constitutive element of society

- people should be able to live how their want, to the border of other's rights

- self-realization

This 3 kinds of liberalism are governed by different rationalities, arguments, foundations.

3. Third distinction - Based upon chronology - 4 periods of its development:

1. 17^th- 18^th century - Classical liberalism
- political issues of liberalism WITHOUT democracy (not every man should be able to have political rights, f.e. right to voting)
- full economic liberalism
- cultural liberalism was very modern


2. 19^th century - Democratic liberalism
- including all ideas of liberalism

3.19^th century - Social liberalism
- acceptance of full political liberalism, cultural liberalism

- very strong skepticism of economic liberalism

4. 20^th century - Neoliberalism

- accept political liberalism, but skeptical about democracy, rather - do not care about democracy very much, only basic political rights
- accept full economic liberalism
- accept moderate form of cultural liberalism

Ideas of liberalism:

Individualism - this is main justification of political institutions
- all liberals have it in common
- the main purpose of political institutions is protecting rights of every single man

Freedom - problem with definition of this word, liberals argue of this issue

Two meanings of freedom:

a) Negative freedom - lack of coercion, we remain free as long as nobody forces us either physical or legally to act against our will
- freedom and happiness are clearly two different things

b) Positive freedom - actual ability to fulfill ones wishes, purposes
- ability to do what I want

Classical liberals and neoliberals - negative freedom, social liberals - positive freedom

Types of equality:

Formal equality - idea of equality before law, as long as law treat everyone equally we should not except anything more

Partial material equality - in order to achieve equality sometimes you have to treat people different, according to law

- positive discrimation - some groups of society should be protected by law in higher degree than others
- concept of social liberalism

Following Aristotelian distinction:

Advocates of negative freedom usually believe in commutative justice:

- a certain distribution of wealth is just if it's result of free human actions
- free human actions are undertaken without co-action, physical or legally force

- there is no unjust if some people are rich and others are poor
- in order to establish justice only crimes shouldn't be able
- justice is different issue than charity

Advocates of positive freedom usually believe in distributing justice:

- distribution of wealth is just if it comforts to some a priori principals
- even if you lose all your money by gambling you are still entitled to social meanings

It is often told that liberals are for peace, they prefer peaceful resolutions of conflicts.

Looking at history it is true opinion, however it's not a constitutive issue of liberalism.

Liberals are in favor of slow gradual piecemeal.

Jeremy Bentham (18^th/19^th)

Creator of utilitarism:

2 principles:

1. Descriptive principle - all human beings are egoist
- we are govern by two gods: pleasure and pain
- in our lives we always try to reach pleasure and avoid pain

2. Normative principle - a moral action is an action that causes more pleasure than pain
- morality is identified with simple arithmetic calculation - pleasure vs. pain
- morality of certain action does not depend on the result of an action
- there is not absolute “good” or “bad” things


Consequences:
1. There is no such thing as immoral pleasure (f.e. necrophils)

2. It belongs to consequent ethics - the morality of certain actions does not depend on acting person's intentions nor these actions agreement with certain moral a priori rule


We have to look at circumstances, judge every action in context.

The same morality is good in some circumstances and in others are morality evil.

Utilitarian philosophy - it's absolutely right to violate every human right

Issue about private property - against high taxes, advocate of economic freedom

Bentham was called one of the fathers of social liberalism.

This simply paradox is connected with issue of utilitarianism, which Bentham was creator.

Classic liberalism is moral wrong, because…

He would say - if we take half of Bill Gates' money we make more displeasure than pleasure, because if we take one person's money we can easily take another's and everyone would be angry.

Social liberalism according to Bentham - advocates of this thought can say that Bentham was wrong about result of such a opinion - because in result it can bring unhappiness.

Example - idea of freedom of speech - for Bentham it depends on what it provides - more pleasure or more displeasure - so we can say that utilitarianism is opposed to human rights.

He divided legal rules:

1. subtending legal rules (material law) - obligation and sometimes penalty

2. procedural legal rules (formal law) - make subtending rules enforceable
   - for Bentham it should be simple

He claims that even illegal evidence can be used during legal trial.

He reject theory of poison tree.

Polish legal system follows Bentham's opinion:

F.e. police can spy our telephony communication and use it as evidence.

If fact number one exist I conclude that fact number two also exists.

F.e. If somebody's fingerprints are on gun we conclude that this person fired a gun.

He repeated Aristotle's definition of legal justice.

• It is duty of judge. Judge has to look at legal rules.

• Should disagreed economical situation of every single man or group in society.

Adversarial theory of legal proceedings- he saw trial as some kind of game between two opponents, f.e. prosecutor and suspect

1. just like during football game - referee sees and judges situation on the pitch, but he doesn't kick a ball

2. judge in court should not ask witnesses, only lawyers do it

3. basically this theory is application of liberal principals into law

John Stuart Mill (19^th century)

He wasn't as radical utilitarian as Bentham.

First distinction between Mill and Bentham:

There are higher pleasures and lower pleasures.

Higher pleasures - are intellectual and moral ones

Lower pleasures - physical ones

Mill was less pessimistic than Bentham in order to people - we are all egoists, but we are capable of altruism.

The final purpose of our existence is to achieve happiness, but…

We don't wish to achieve happiness because it would make us happy in long run, but we want to achieve this wishes for ourselves.

Concept of self-respect.

Mill's vision of liberty - theory of harm principle:

1. our freedom of action can not be limited unless such an action directly harms another human being

2. this is the only justification for government to limit our freedom

3. freedom of my fist ends when another's nose is

4. you can not call you liberal when you reject this principal

Anti-paternalistic theory:
(paternalistic theory - government should act to society like it is our father, it knows what is right for us - which Mill rejected)

- It prohibits government from limiting our freedom for our own good

- F.e. criminalization of suicide shouldn't take a place

- Because if we limit such actions there is absolutely no reason to allow f.e. read immoral books (a maiori ad minus)

Idea of no punishment for victimless crimes - based upon “volenti non fit iniuria” (he who wants is not injured) - it's not other people's business what every single man do

Government is not the biggest dangerous for freedom - the most danger is society.

Human beings by nature are intolerant - we hate the others.

More often we are afraid of disseminated sanction of society than legal sanction.

He was called protector of minorities - a majority does not need protection.

He supported positive distinction of society's group, f.e. he was one of the first philosophers started thought of feminism.

Freedom speech for Mill - vital way to develop talents and realise a person's potential and creativity.

Why free speech shouldn't be prohibited?
Number of arguments of Stuart Mill:

1. Ontological arguments

- Free speech is primary good - by itself.
- Every opinion is our, it's our opinion and beliefs.
- Mill compare personally hold opinion to material object, property.
- If prohibited from expressing this opinion it's the same as stealing.
- Any censorship is thievery, it steals part of our personality.
- Even if only one person holds certain opinion and all the rest of humanity disagree with this opinion this majority has no more right to make this one person quiet

- Number doesn't matter as long as freedom of speech concerned.
- even if what you talk is considered as outrages by another people, it's your opinion and you have right to hold it.

2. Consequentialist character
   - free speech is good because it promotes truth - based on problem of true:

1. Problem of true
   - Mill claims that free speech help us to establish truth in discussion.
   - Epistemological uncertain - while most people agreed this is prohibited…
   - Theoretic opinion do not contribute to discover truth.
   - Therefore, if we prohibit a statement that this is false there is a risk prohibiting a true statement. We can never be certain (e.g. flat earth).

2. Even false opinion are useful - Mill believes that true only become strong when it forced to face/debate with false opinions.
   - Debate examining truth, false arguments too.
   - We are forced to search better arguments refer consequences of true etc.

3. We start treating our words like dogma.

3. Free speech is indispensible condition of progress class of ideas

4. Any censorship is inefficient
   - The only result of censorship is dishonest.
   - Cenzorship doesn't eliminated idea from society.
   - Cenzorship can eliminate a lot of things from debate but these things exist in our head

5. Forbidden true taste the best
   - is the best motivation to discover truth.
   - Discover true is the main way to liberty.

Governmental intervention - Mill is one of the first liberal thinkers who included social issues in economy.

According to Mill government should deal with:

1. Consumer protection - reason: a consumer is incapable of protection themselves.

2. Public education, free - it's socially beneficial; force people to spend money on thing that one beneficial for them; if people do not need to finance government.

3. Labour law - as a separate branch of legal system; civil law was no longer to rule labour.

4. Approved 2 taxes - inheritance tax and progressive taxation (not income tax) including real estate taxes. Redistribution of money: from rich to poor.

Alexis de Tocqueville (19^th century)

Theoretician of democracy, he observed democracy in USA.

Democracy:

• as political system: where government elected by some people of population

• as sociological system: system where there is equality of opportunity

Democracy is a historical necessity - democratic system will soon prevail over other of government. But he wasn't advocate of democracy.

We have 2 ways of democracy:

1. Bad democracy (sociological view):

2 dangers:

• Emergence of mass society - equal people who would want to be average, having simple uncomplicated needs, hating social, political, cultural elites; extremely egoistical indifferent to anything that transcends their views; tyranny of public opinion.

• Emergence of new despotism - mild, carry despotism, rule held for the good individuals; but the core of the despotism is absolute and total regulation, constant interference with personal lives - it does not stop; ever decreasing freedom.

2. Good democracy - it must include certain remedies against the dangers mentioned above

Decentralization of power - it's easier to control government on the local level than on the national one.

Emergence of civil society - a net of press etc. - counterpoint to government intention; when people decide to cooperate, they start appreciating their freedom, doesn't have to rely on the government.

Existence of social elites, role models.

No good democracy can exist without respect for tradition, culture, common good, religion (practice attitude).

Niccolo Machiavelli (15^th / 16^th century)

The main question - what makes a good ruler?

The answer is formulated in his book “The Prince”

Machiavelli liked Aristotle's philosophy. He was in favor of Empirism.

- Knowledge based on experience.

- He claims that contemplating abstractive ideas is simply a waste of time.


He is in favor of inductive reasoning, Realism as well.

This realism has 2 dimensions:

- didn't believe in utopias. It's impossible to achieve.

- important is what people actually do, not what they ought to do

He didn't believe in absolute truth. He believed that politics should always fit the circumstances.

The starting point for every politician is naked reality.

Neither rulers nor the ruled care about abstract ideas. He rejected any ideas of Plato's philosophy.

There's a balance between good and evil in our universe.

Also between good luck and bad luck.

They move through time and space.

During a certain period some government may be lucky, during another it may be unlucky.

Certain concept of history.:

• There are moments of improvement.

• At some moment that improvement reaches a peak.

• Then there's a slide down a slippery slope.

• Then the circle repeats.

How does it translate to advice for politicians?

Good politician always has to recognize at which moment his community finds itself. He/she should lead such policies that will fit the time.

When improvement is going up he/she should be bald in his actions.

When it's at the top he/she has to make sure that it will last for the longest period of time. When it's going down, politician has to make sure that this slide is as mild as possible.

If a politician makes a mistake in this diagnosis the consequences may be terrible.

Two conclusions:

-optimistic conclusion- things are never so bad that the improvement is impossible.

We can always get up.

-pessimistic conclusion - things are never so well that the fall is impossible.

Our life is ruled by two forces:

1. Fortuna - destiny, luck, fate - these are the factors that we cannot control.

2. Virtu - our personal features - we can control it and work on it

Fortuna is responsible for 50% of our life. However, the relationship between fortuna and virtu is relationship of inverse proportionality.

More brave people are more capable of resisting fortuna.

Audaces fortuna iuvat - fortuna favours the brave

Anthopological pessimism

He claims that people are evil.

“People are always evil unless necessity makes them good.”

“People would prefer to lose their fathers than to lose their inheritance.”

A ruler has to take this evil human nature into account. He cannot count on good instincts of the people.

Idea of necessitas

- that which is necessary - things we cannot overcome

- every ruler has to recognize necessitas.

Politics is the art of the possible. In politics there's no place for idealists, perfectionists, theoreticians, naive people. Politics is an area of necessitas.

Politicians are prisoners of circumstances. They do not have actual freedom of choice.

Occasione - opportunities

• There're some moments when a politician can actually do something other than administration.

• This is the moment which is crucial for every politician.

• A good politician should see this opportunity and make a full use of it. He cannot hesitate.

• Those opportunities often exist during time of crisis. Politician has to recognize between what is possible and occasione.

• Very often politicians are incapable of making those distinctions.

The most important point concerns the difference between politics and morality:

Machiavelli is not amoral and not immoral because he claims that morality surely exist but politics is independent from morality.

Not good and evil but efficiency and inefficiency.

• It has nothing to do with morality.

• If politician wishes to be efficient he/she has sometimes to act immoral.

• Politician has to be like a lion and a fox in one.
  Lion- symbol of courage and power.

What is important, to be loved of to be feared?

To be feared. Love is very unstable.

For Machiavelli fear is a stronger motivating factor than love.

The fear should be in back of peoples' head.

For politician is way better to kill a lot of people in one day than one person every day

A politician shouldn't be generous

If you give people something they get used to it.

It doesn't matter who you are, it does matter how you look like.

If you have to do something really bad, let your helper do it.

Plausible deniability.

A politician should never blame himself for anything he/she does. Blame the others. Blame your enemies, opposition. If it doesn't work, blame your servants. Blame fortune.

Politician should keep his word as long as it's beneficial to him.

This vision of political activity translates itself into prince's system of dictatorship.

This system is proper for emergencies, dangerous situations.

Under normal circumstances Machiavelli is in favor of republic.

Some scholars claim that Machiavelli was serious writing his work.

There's a second group, who claim that he wasn't serious writing “The Prince”.

There's no guides, it's a description of politics.

Machiavelli doesn't say us what politicians should do but what they actually do.

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