STARGER_JURISPRUDENCE_SPRING_2012
I. NATURAL LAW
Ontological
Normative
· What Is.
· Is/ Exists
· Current
· Essential
· Inherent
· Intrinsic
· What Ought to be.
· Ideal/should be
· Norms
· Ethics
· Morals
Conceptual
Empirical
· Idea/thought concept
· Theoretical
· Analytical
· Logical
· Universal
· Tangible/Experience
· Descriptive
· Data
· Particular
DECLARATION OF INDEPENDENCE
· Natural Law Thesis: If the law that is governing you is bad, then you must change it. The declaration of independence is a thesis of what is and what ought to be.
· Conceptual Premises of DOI: Natural Law embodies some truths; all men are created equal (etc). They however, do not need to prove this, it is “self-evident”.
· Emperical Data: Cited the acts of oppression by the English. “To prove this, let facts be submitted to a candid world.”
· Theme of the English: Problems with the law, “refused to assent”, “refused to pass laws” etc. critique about the kings law. DOI is suggesting the king does not have real law, they are technically not breaking the law, therefore they need to instate laws. List of legality—contradiction that occurs after the revolution (keep the common law—property).
· Audience of the DOI: “Rallying the Troops” (Colonists, the British)
· Formal Audience: “Appealing to the supreme judge of the world” –God, but the intended audience is different from the formal audience.
Natural Law
A set of basic principals (basic human goods), which indicate the basic forms of human life; this is only achievable through community with other humans, it requires some legal system to exists and flourish and looks towards the morality of humans to define law, purely from human nature and it is cannot change because it is inherent in the nature of human beings.
Aquinas—Traditional
Fuller—Modern
Looks towards the divine source and god, which should define morality to define law.
Looks towards human nature and what is inherent in their being to determine law.
Laws must be promulgated to have force (announced publicly) Q90
“Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
Procedural Natural Law View, Used lots of long metaphors.
Law is something pertaining to reason; an intellectual process directed at some end/purpose (it is for the common good) Q90
Natural law overview:
· Something about the nature of human beings leads to considerations of the limits of law humans make.
· Law is an artifact of human will.
Q91 Kinds of Law:
(1) Eternal Law—from God the ruler; it’s Supreme
(2) Natural Law—“nothing more than the rational creature’s participation of the eternal law.” Natural law comes from the divine/eternal light. “The light of natural reason, whereby we discern what is good or what is evil, which is the function of natural law, is nothing else than an imprint on us of the Divine light.”
(3) Given by God—innate sense of good and evil
(4) Human Law—temporal. Human law is derived from human reason–“the knowledge that is not imparted on us by nature.”
(5) Divine Law—“man should be directed to his end by a law given by God.”
(6) Morality—“human law could not sufficiently curb and direct interior acts; and it was necessary for this purpose that a Divine law should supervene.”
(7) Scriptures—tells you how to get to Heaven.
Enumerated the consequences of the failure to make law. Legal rules will fail if:
· Failure to achieve rules—issues decided on an ad hoc basis
· The rules are not publicized
· Abusive, retroactive legislation
· Rules are not understandable
· Contradictory rules are enacted
· The rules require conduct beyond the powers of the affected party
· The rules are changed so often that the subject cannot orient himself accordingly
· Lack of congruence between stated rules and actual administration of the rules.
Q92 Of the Effects of Law:
(1) To make man good—“A law is nothing else than a dictate of reason in the ruler by whom his subjects are governed.”
(2) Law = Virtue = Good. “But every law aims at being obeyed by those who are subject to it. Con
is the means to the end and Fuller takes a more procedural approach.
Higher Laws are what guide us to make law. Human society is made of Reason
The lower laws build the foundation—law made by the people
II. INTRODUCTION TO RHETORIC: LOGOS, EHTOS, PATHOS
ARISTOTLE
PERELMAN
· Logos—appeals to reason, login in subject matter (logical)
· Ethos—appeal to authority, speaker credibility (ethical)
· Pathos—Appeal to emotion, audience disposition (humor)
· All come together to make the Rhetorical Triangle (they all work together)
· Communications Triangle—speaker (ethos), audience (pathos), subject-matter (logos)–ARGUMENTATION
· Deliberate—political, looks to future, politicians
· Forensic—legal, looks to past, cases come to court when so violates a law and wants to look back
· Epidetic –ceremonial, looks to present, its role is to intensity adherence to values, adherence without which disclosures that aim at provoking action cannot find the lever to move or inspire their listeners (funeral oration)
Analytical
Dialectical
Formal logic
Theory of argumentation
Idea of truth via a valid inference (how to go from one statement to another)
Reasons from generally accepted premises (eulogos), concerns justifiable opinion
Syllogism—All men are mortal (major premise), Socrates is a man (minor premise), therefore Socrates is mortal (conclusion)
Eulogos is going to vary from audience to audience (you speak in different terms based on your audience)
Do not question the premise to be true (self-evident or hypothesis)—conclusion must be true
Argumentation (demonstration is analytical)
Validity of inference does not depend on truth of premises
Socratic method