The SOCIAL CONTRACT Tradition

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Undergraduate Jurisprudence (SECTION 3) Mind Map on The SOCIAL CONTRACT Tradition, created by yassinr on 05/10/2014.
yassinr
Mind Map by yassinr, updated more than 1 year ago
yassinr
Created by yassinr almost 11 years ago
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The SOCIAL CONTRACT Tradition
  1. 2013: a)'That HOBBES AND KANT REJECT people's right to REBELLION against UNJUST SOVEREIGNS is SUFFICIENT reason to REJECT THEIR THEORIES OF THE STATE AND LAW.' Discuss.
    1. THESIS: both have RATIONAL BASES to GENERALLY REJECT people's right to rebellion. BUT THIS REJECTION IS NOT ABSOLUTE FOR NEITHER. Thus both the rational bases for rejecting, and the exceptions to the rule, mean that their general rejection is not sufficient to reject their theories of the state and law
      1. HOBBES
        1. People have an ABSOLUTE RIGHT TO SELF-PRESERVATION, and are FORBIDDEN by REASON to do that which is DESTRUCTIVE of his life/preservation (laws of nature)
          1. HOBBES: MANIFEST CONTRADICTION to ACCEPT a sovereign in order to preserve oneself, and then fight against it
            1. HOBBES' inssitence that the limits of our obligation to obey the sovereign are set by our iNABILITY TO GIVE AWAY OUR LIVES
              1. BUT for HOBBES-- the fact that sovereign not under any obligation to us is only in STRICT SENSE-- in the CONTRACTUAL SENSE. In reality-- do have duties towards citizens, and breach of such duties may justify revolution
                1. For HOBBES, one cannot conscientously object to horrendous demands, and if we refuse, we cannot incite others to resist with others
                  1. BUT sovereign has a NATURAL LAW DUTY to RESPECT SUBJECTS' MORAL RIGHTS
                    1. Also, [though unconvincing] Hobbes relies on REALM OF ASPIRATION: we cannot resist the sovereign, but trust that the sovereign, not the agent, will be held into account in front of God [this would be unconvincing for many-- reliance on COMPREHENSIVE MORAL DOCTRINE to keep sovereign into check/ hold him into account. If people don't believe in God, won't believe they will get their compensation
                2. 2013: b) In what SENSE, and to what EXTENT, can HOBBES' AND KANT'S THEORIES of the STATE and LAW be said to be 'LIBERAL'?
                  1. HOBBES
                    1. LAW CAN ONLY EXIST AS COMMANDS. in this way, arguably LIBERAL as not imposing some mystified moral doctrine-- demystifies peoples' reason to accept
                      1. BUT DOES IMPOSE MORAL DOCTRINE-- OUTRIGHT REJECTION OF RELIGION AS BASIS OF LAW. Says not seeking truth, but because of his views on religion forming basis of law, and how this would allow priests to abuse power (c.f. RYAN), just as imposing as having a religious doctrine, especially since the law he imposes is NON-CHALLENGABLE, and made by ONE SOURCE, without any checks and balances.
                        1. NOT LIBERAL-- people may not agree. Yes, avoiding SoN. RATIONAL COMPROMISE. but can still be achieved in other ways, instead of ARBITRARY DECISION that one sovereign is the uncontestable source of law. Thus lacks liberty because people will inevitably disagree, and will have to be COERCED into obedience
                          1. HOBBES' argument that we are all NATURALLY EQUAL is MEANINGLESS because if sovereign power left unchecked, and source of law unchallengeable, will inevitably favour some over others
                            1. HOBBES' RATIONAL COMPROMISE INHERENTLY LACKS LIBERTY-- argues that if we keep our eyes on the need to avoid SoN, we will not be tempted to stray. But this is obligation out of FEAR
                              1. HOBBES: CONTRACT STILL BINDS US, EVEN IF EXTORTED BY FORCE. Because in SON, no injustice unless breach of contract. And the victor of the war merely exercising his RIGHT OF NATURE to do whatever he deems necessary to protect himself. So provides us with CHOICE: either SUBMIT to him and be BOUND, or don't and DRAW DEATH UPON US. FALSE SENSE OF CHOICE, AS WELL AS ARBITRARY DEFINITION OF INUSTICE
                                1. BUT HOBBES convincingly argues that the fact that we submit out of FEAR is IRRELEVANT-- we ALWAYS SUBMIT OUT OF FEAR. Doesn't mean though, that we always give up so much in our submission
                                  1. ALTHOUGH HOBBES argues that the sovereign has a NATURAL LAW DUTY to GOD to not only protect the lives of citizens, but also to ensure they can fulfil full contentment in life without danger, HOBBES does NOT consider NATURAL LAW AS LAW,; only the commands of the sovereign are law. So cannot really be taken account when considering HOBBES' account of STATE AND LAW.
                                    1. Nonetheless, according to this, IDEALLY the sovereign should be ABSOLUTE IN PRINCIPLE, BUT UNDISTINGUISHABLE from CONSTITUTIONAL SOVEREIGN in practive
                                  2. THESIS: Although we must bear in mind the CONTEXT of HOBBES' theory, that of avoidance of STATE OF NATURE, he still arbitrarily LIMITS people's liberty excessively and unnecessarily. His argument that all laws limit freedom does not stand, because the EXTENT to which the laws he proposes limit freedom more than say, a republican model HOBBES argues the SON is SO BAD. Yet expects compliance with a sovereign unless more dangerous to comply than SON. Means it is a VERY LOW THRESHOLD that the sovereign is required to meet.
                                  3. 2012: After a long and bloody CIVIL WAR, Rufus Firefly becomes the new SOVEREIGN of Freedonia. President Firefly is a LIBERAL and wants to RULE WITHOUT COERCING HIS SUBJECTS. He seeks the help of two famous Freedonian political philosophers, Manny, who is a KANTIAN, and Tommy, a HOBBESIAN. Pesident Firely asks them respectively for Kant's and Hobbes' views on 2 specific questions: a) Is he JUSTIFIED in keeping to himself ALL THREE STATE POWERS, i.e. LEGISLATIVE, EXECUTIVE, and JUDICIAL? b) Are there any LIMITS to what his laws may require of Freedonians? How will Manny and Tommy answer these questions? If you were President Firefly, whose views would you adopt and why?
                                    1. HOBBES (c.f. RYAN) argues that need ONE SOURCE OF LAW, and this is LEGALLY ABSOLUTE AND UNCHALLENGEABLE.
                                      1. Although he argues that ALL LAW LIMITED FREEDOM, and that a REPUBLICAN system merely guaranteed freedom to the COMMONWEALTH, not to the INDIVIDUAL, there are DEGREES TO WHAT IS LIMITED, AND WHY. AND WHETHER THE PEOPLE AGREE OR COMPLY OUT OF FEAR. The unchallengeable source of law that Hobbes proposes means that unless people are coerced to obey, there will be a revolution- LACKS LEGITIMACY and thus STABLITY. To argue that everyone would accept this to avoid the horrendous SoN is UNCONVINCING and applying a FALSE DICHOTOMY- could for example have a DEMOCRATIC RULE of division of labour
                                        1. HOBBES argues we are all NATURALLY EQUAL and that the sovereign is the ONLY FOUNT OF HONOUR, and we should only demand from others what we would accept they demand of us. BUT this is simply A DENIAL OF THE SOCIAL REALITY that we are NOT all equal morally, intellectually and politically. and having one, unchallengeable source of law means that will never be able to reach any level that is even close to equality-- will inevitably favour certain emmebrs of society over others
                                          1. HOBBES: To know the law is to know the LAW OF NATURE-- as opposed to basing the rules on HABIT or LOCAL MYTH
                                          2. THESIS: HOBBES' theory WILL LEAD TO COERCION. for one, no reason for everyone to accept that particular sovereign, and that particular law. So to guarantee stability, will have to coerce subjects. Also, Hobbes believes that people possess PRIDE/VAINGLORY, which cannot simply be moderated, and instead must be SUPPRESSED
                                          3. AG: "RAWLS' political theory is LIBERAL whereas HOBBES' and KANT'S are not, because he SUCCESSFULLY AVOIDS RELIANCE upon COMPREHENSIVE MORAL DOCTRINES" Discuss.
                                            1. HOBBES
                                              1. The way in which HOBBES' theory determines what is law is not at all liberal-- will inevitably make many compromise for the sake of avoiding the state of nature. c.f. RYAN: Political system, in settling the quesiton 'what is law', have to make UNIVERSAL AGREEMENT that ONLY ONE SOURCE OF LAW EXISTED, and that whatever source declared as law was law
                                                1. RAWLS would argue that this method of determining law doesn't even resolve the problem HOBBES is so desperately trying to avoid-- unless use COERCION and FORCE ACCEPTANCE AND OBEDIENCE, Therefore unless completely deprived people of their liberty, would not be a stable system
                                                2. ONE THING HOBBES AND RAWLS PRIMA FACIE HAVE IN COMMON: HOBBES believed that RELIGION must be SUBORDINATE to LAW, otherwise priests would ABUSE POWER. Sovereign authority was to "ESTABLISH LAW NOT TRUTH" and to establish one UNEQUIVOCAL SOURCE OF LAW, not to demonstrate the trueth of some partiuclar religious creed. SAME WITH RAWLS in this regard. SO HOBBES DOES AVOID COMPREHENSIVE MORAL DOCTRINES.
                                                  1. BUT this is only on face value, as HOBBES believes that RELIGION should be SUBORDINATE to law, which is ULTIMATELY A COMPREHENSIVE MORAL DOCTRINE. Believes this as he feels priests would otherwise ABUSE POWER.
                                                    1. ALSO-- HOBBES' LAWS OF NATURE-- that man is FORBIDDEN, BY REASON, to do that which is DESTRUCTIVE of his life/preservation-- that we have an 'ABSOLUTE RIGHT to do so'
                                                    2. cf. RYAN-- sovereign cannot give up right in judging what doctrines may be publicly taught and defended-- seems surprisingly excessive. very controlling and a major deprivation of liberties
                                                      1. Also- citizens have NO SHARE in the government and sovereign authority- otherwise would have countless arguments over whether a given law violates a reserved right, which would frustrate the object of entering into a political society in the first place
                                                        1. Importantly though, Hobbes argues that the sovereign has NATURAL LAW DUTIES in which he will be held accountable for in front of God. This is reliance on a comprehensive moral doctrine to keep the sovereign in check, which is unconvincing for those who do not believe in God
                                                        2. DEFINE LIBERAL
                                                          1. IS RAWLS LIBERAL? DOES HE SUCCESSFULLY AVOID RELIANCE ON COMPREHENSIVE MORAL DOCTRINES? IS THIS SUFFICIENT TO GUARANTEE LIBERTY?
                                                          2. ARE HOBBES AND KANT LIBERAL? WHY/WHY NOT? DO THEY RELY ON COMPREHENSIVE MORAL DOCTRINES, AND IS THIS WHY THEY ARE NOT LIBERAL? WHAT OTHER REASONS?
                                                          3. GW: How does one's understanding of HUMAN NATURE inform one's account of law? Discuss with reference to at least one of HOBBES, KANT and RAWLS.
                                                            1. (c.f. RYAN) HOBBES- FEAR is a PRIMARY POLITICAL VIRTUE- motivates people in SoN to CONTRACT with each other to set up an authority to "overawe them all" and make PEACE possible.
                                                              1. HOBBES also PSYCHOLOGICALLY REDUCES THE PERSON-- forces us to think from GOD'S POSITION-- and from such a position, the only RATIONAL ROUTE OF SELF-P
                                                                1. HOBBES believed people possess a COMMON AVERSION TOWARDS DEATH (Contrast Aristotle-- that people have some kind of ATTRACTION toward the GOOD)
                                                                  1. HOBBES believed that the SoN was a HISTORICAL FACT e.g. people living in Britain during CIVIL WAR living in SoN. Also, believed that RELAPSE into it was a STANDING DANGER
                                                                    1. HOBBES- SoN governed by NO RULES and recognise NO AUTHORITY. Therefore, people are a THREAT to each other
                                                                      1. HOBBES: people are RATIONAL, SELF-INTERESTED, VULNERABLE to one another, ESSENTIALLY ANXIOUS
                                                                        1. UNLIKE ANIMALS-- HUMANS THINK AHEAD-- not just about present dangers
                                                                          1. ANXIETY leaves people in TERRIBLE BIND. Need apples-- but need MEANS TO SECURE APPLES. Each appears to the other as a threat, therefore each person BECOMES a threat
                                                                        2. HOBBES: LAWS OF NATURE
                                                                          1. =EQUAL, MUTUAL RIGHT of the right to PRESERVE ONESELF
                                                                        3. THESIS: HOBBES' UNDERSTANDING of people, what they want, laws of nature and the state of nature very NARROW and limited to basic needs. Means that his guarantees by accepting a sovereign are also very limited- fail to fulfil many HUMAN DESIRES
                                                                        4. Questions orientated around: Right to REBELLION LIBERALISM COERCION HUMAN NATURE COMPREHENSIVE MORAL DOCTRINES
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