Thursday, April 24, 2014Day # 8!Hobbes Contd. & Mill Discussion Hobbes:!! -need to sovereign so we don't have a state of nature where people are all individually seeking and violent!! -left to their own devices people won't do the right thing ! ! ! ! ! Slide 1: !•Unlike animals (bees, ants, etc.) people cannot live in social groups without coercive power!•The commonwealth unites all persons as one, and does so beyond mere consent or agreement (mutual surrender of autonomy) !! -Hobbes is talking about the establish of common wealth, (some states today are still a common wealth) -- it is an entity that unites the interests and power of each of the constitutes of its members -- As a member of society you are a member of "the body politic" !! Commonwealth: unites all the members as one entity. Based on a mutual surrender of autonomy --uniting people beyond the mere democratic consensus. !! -Hobbes is giving an example of why the state cares about you !! -each individual is transferring autonomy and transferring it to the sovereignty !•The commonwealth becomes a "Leviathan" or "mortal god."!•The sovereign holds all power (individual or assembly), all others are merely subjects !•No breach of covenant is allowed: act of breach amount to self damage!! -Breach of covenant: you can't go against the sovereign, you cannot go back to the state of nature. Leaving the sovereign is like cutting off your own hand (Hobbes) !•The sovereign makes all law and settles all disputes !!!!!John Stewart Mill 1806-1873!! ! ! ! ! ON LIBERTY 1859!•A utilitarian theory of law and justice: (in contrast to Hobbes) the good is that which is useful because it affords "the greatest happiness for the greatest number" -- (hobbes is saying people are nasty and selfish and you must terrify them into compliance. Mill says that people know what is good for themselves and the state only needs to intervene when these interests clash) !•In contrast to Hobbes, Mill argues for a minimalist state rather than an absolute sovereign!! -the state should only do whats necessary to keep you from harming other people and other people from harming you!•Mill's Harm Principle: Self-Protection is the sole justification for the state's restricting a person's liberty !1Thursday, April 24, 2014•"Tyranny of the Majority:" social tyranny can be more powerful than legal or political oppression !! -Mill offers explanation for incarceration in our country : harm principle, democracy, liberty (those are his mains ideas) !!-Mills notion of liberty is not what you might imagine!! -Mills says things that civilizations and their nonage that are juvenile (is people with dark skin)--they are in their civilization nonage, they are not ready like white Europeans are !! -Mill does say that the only time the govt. is justified upon intruding on your liberty is when they are protecting you from someone harming you !! -Mills also says people are responsible for sacrificing for the greater good--when people do step out of line they will be punished swiftly and severely and will be made an example of !! ! -juxtaposes the liberty in society and a punitive form of punishment !!!!!Slide 3: Law & Language !-How may law be understood as a form of language and rhetoric and as a living form of social discourse?!! -Hobbes, Mill, Hartog, O J.B. White (reading response options) !How are law and language related?!! -helps with the interpretation of the law !! -law fundamentally involves reading, speaking and writing!! -without language there is no law!James Boyd is saying: law is related to custom and culture. Law exists in any political contexts!!!!!!Slide #4!•Law should be seen as a brach of rhetoric, not as a set of abstract rules!! -law is a form of rhetoric (what he means by rhetoric is a classical definition, for thousands of years rhetoric is one of the classic legal arts--part of what they learned was rhetoric: the art of persuasion) -- in modern language the implicit assumption is rhetoric with the goal of persuasion or manipulation (has a negative connotation) !•To understand this idea, we must begin by challenging the limited idea of rhetoric! as deception or manipulation!•Rhetoric is the art of using language to persuade others!•Legal rhetoric is the "central art by which community and culture are established, maintained and transformed"!! -the law is not just some bland set of rules the law is an active process through which community is established. It maintains that community and transforms that community. !•Traditional views of the law: 1. authoritative command and 2. institutionally established and managed rules !! -he is challenging these traditional views!2Thursday, April 24, 2014! -Authoritative command: the idea that you have a sovereign that hands down the law and that the people follow the rules (the idea of law having some root and authority--is the traditional idea) !! -Institutionally Established Community: a set of institutionally set and managed rules, "sociology of law" (the problem with the second model is that in modern society we tend to look at the law through an instrumental model: modern people look it as a tool to take it out when needed, used for the purposes at hand then it gets put back on the shelf.) !! -both of them have some element of relevance but thinks that neither tell the whole story !•The second view dominates modern thinking, and tends to reduce law to an object or structure!!!!!!Slide #5 !•Modern society has come to view the law as a mere tool or machine: the instrumental model !! (the problem with the second model is that in modern society we tend to look at the law through an instrumental model: modern people look it as a tool to take it out when needed, used for the purposes at hand then it gets put back on the shelf.) !! -this doesn't reflect the richness or complexity of our closeness to the law ^^ !! -constant deeper relationship between you and the law that is not captured in the instrumental model (that is what he is trying to explain) !! -when we only think its bureaucratic choices we miss how it coexists with us and us with it !•This model fits our ideas about bureaucracy and decision-making (cost/benefit analysis) !•But by reducing law to policy choices and "techniques of implementation," we isolate it from society and misunderstand its deeper nature !•In this way, we come to think incorrectly that the law is an object for society, and that society is