Dennis Lloyd

August 14, 2017 | Author: cacacaca | Category: Jurisprudence, Evil, Good And Evil, Aristotle, Thomas Aquinas
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Legal Philosophy...


English jurist Dennis Lloyd extremely emphasizes on the effects of legal idea. He points out that “it is undeniable that legal idea has contributed a lot to human being.” “Considering the world tight situations, if civilization wants to live on, the dependence on this fundamental idea is stronger. Dennis Lloyd Biography  lawyer,  born 22 October 1915,  member of the bar, professor of jurisprudence in London University, Dean of Faculty of Law, Member of different law reform organizations and film institutes  married 1940 Ruth Tulla (two daughters),  died 31 December 1992  jurist, lawyer, politician, law reformer, devotee of the British film industry  man of culture and erudition, at home in different disciplines, at ease with different worlds.  he was essentially a private person, a family man, a loving husband for 52 years and a father of two daughters of whom he was proud. It may be that Dennis Lloyd would wish to be remembered for his personal qualities, his humanity and sensitivity, his empathy with the problems of others. But it is as a scholar that most will remember him. In all this work there was emerging a view of law. Lloyd was to come to call it the 'idea' of law. As found in these disparate studies and in his very successful Pelican The Idea of Law (1964), his idea of law is functionalist and consensus-based. He had a vision of law as competent to solve any problem, whether it concerned the right to work (the subject of his inaugural lecture), homosexual behaviour or the control of outer space. He believed that the idea of law which would prevail 'will be one which emphasises not so much the self-contained character of law, but rather its function as an instrument of social cohesion and social progress'. For Lloyd, law was not so much 'logic' as 'experience'. He was no formalist and he readily appreciated the social, economic and political context of law. Ultimately, the idea of law that we find in Lloyd's jurisprudence is a vision consonant with Lloyd the man: a liberal in the best sense of that tradition, a believer in the importance of rights, in the value of the rule of law: as he himself puts it (also in The Idea of Law) in the value of law as the 'essential guarantee for all those freedoms which are looked upon as vital to the good life in a social democracy'. He saw law as a building-block of civilisation.

IS LAW NECESSARY Dennis Lloyd Main Thesis: The answer to the question lies on your perception of man‟s nature. Whether or not man is in nature good or evil would give us an answer to the question of necessity of law.

I. The Nature of Man A. Man is by nature evil   

Such nature should be curbed, if not, it will lead to total destruction of man. Law then is the indispensable restraint upon the forces of evil. Anarchy or absence of law is the supreme horror to be warded of.

B. Man is by nature good.   

People who believe in this nature of man seek to find the sources of the ills of man‟s present condition. The defect in man‟s social environment is the true cause of the evils, which afflict him. The legal system is the source of man‟s tribulations.

II. The Law and the forces of evil. A. Whether you see man as by nature evil or good, he still needs laws.  

Man‟s nature is evil thus no social progress could be attained without the restraints of penal laws. Man is good but due to sin, corruption or some internal weakness, man‟s original and true nature had become distorted and thus required for its control the rigors of a primitive system of laws.

B. “Idyllic Primitive Scene” refers to the golden ages where everything was in order no external system of legal rules, life is simpler. 

This served as a „pattern for a movement toward a return to nature‟ --going back to man‟s primitive, unspoiled nature where there is a happier society in which uncorrupted natural impulse will replace coercive regimes.

III. Man’s nature is evil A. By Geography  China (Legists) – argued that man‟s nature was initially evil and that the good ways in which men often acted were due to the influence of the social environment, particularly the teaching of rituals and the restraints of penal laws.  India (shastra) – men are by nature passionate and covetous and tha tif let to themselves, the world would resemble a „devil‟s workshop‟ where the „logic of the fish‟ (means: big ones would eat the little ones)would reign.  Western Europe o Bodin – original state of man was that of disorder, force, violence

o Hobbes – the life of primitive man was a state of perpetual warfare, where individual existence was „bruttish, nasty and short‟ o Hume – without law, government and coercion, human society could not be exist and so law is a natural necessity of man. o Machiavelli – men are bad and will not observe faith towards you(traitors), you should not trust them. B. The Golden Age  

  

Ovid – man don‟t need laws because it is written in his nature, yet everyone is safe because conscience is their guard. Seneca – in the “primitive innocence/state”, men lived together in peace and happiness, having all things in common, there is no private property; no slavery, no coercive government; no corruption; everyone is free and equal. This primitive innocence was a result of ignorance rather than virtue This ignorance is the source of social evils later on. Such social evils necessitated an introduction of regime of law Corruption = a product of avarice, fall of man

C. Judeo-Christian    

Paradise is the equivalent of the primitive innocence The necessity of human law and coercive state, private property and slavery was derived from man‟s sinful nature, which resulted from the Fall. Law was a natural necessity after the fall to mitigate the effects of sin. Consequences of the fall: o Family – represented the coercive domination of the male against the freedom and equality of the primitive paradise. o Slavery – sins is a fit subject of enslavement.

IV. The theory of law 1. Agustine  

State-law and coercion are not themselves sinful but are part of the divine order as a means of restraining human vices. Due to sin. The hope of mankind is not in the sphere of social reform but rather by the attainment of a commonwealth of God‟s elect, a mystical society, which would replace the existing regime dominated by man‟s sinful nature. Law is a natural necessity to curb man‟s sinful nature.

2. By 13th century

 

There was a change in emphasis due to Aristotelian influences Man‟s nature might be corrupt and sinful but he still possessed a natural virtue which is capable of development (Aristotle‟s natural development of the state from man‟s social impulses)

3. Aquinas   

States is not a necessary evil but a natural foundation in the development of human welfare. Law is a beneficent force, not only in restraining evil but also for setting him upon the path of social harmony and welfare. Law then is not an negative force but a positive instrument for realizing those goals towards which man‟s good or social impulses tend to direct him.

V. Man is by nature good (anarchist viewpoint) •The concept of law is based on a wistful primitivism, nostalgia of the primeval past. 1. Plato  pins his faith in a system of education which will not only produce adequate rulers but will also serve to condition the rest of the population to the appropriate obedience. 2. Adam Smith  laissez faire; free play of economic forces which could be assumed to work towards ultimate harmony.  coercive law may be used to protect private property (an indispensable feature of free market) 3. Godwin  evils of the society arose not from mans corrupt or sinful nature but from effects of oppressive human institutions.  Man is capable of unlimited progress, only coercive institutions and ignorance stand in the way.  Voluntary cooperation and education would enable all law to be abolished. 4. Bakunin and Kropotkin  State, law, coercion and private property were the enemies of human happiness and welfare. 5. Tolstoy  Man is universally good; there is no need for law.

6. Maude  Remove the law and induce men to believe that no fixed code or judgment should exist; and the only people who will be able to get on at all decently will those who follow the traditional way of life. 7. Marx  Law is nothing but a coercive system devised to maintain the privileges of the property-owning class.  By the revolution of a classless society would be brought into being, the law and the state would „wither away‟ as being no longer needed to support oppressive regimes.  Looks forward when social harmony will be attuned to the natural goodness of man, unimpeded by such environmental snares as the institution of private property. VI. Innate Goodness and the price of Civilization 

Man at the primitive level is innately good and that it is the social and political organization of civilized life, which has introduced violence, and disorder which led to systems of legal coercion.

1. Elliot Smith  most of the friction and discord of our lives are obviously the result of such exasperations and conflicts as civilization creates.  The artificial aim, which is the object of envy and malice, is the source of conflict. 2. Herbert Read  The anarchist conceives society as a balance or harmony of groups; the only difficulty is their harmonious interrelation.  Universal decentralization of authority and simplification of life is essential.  Anarchism means a society without arkhos (ruler); it does not mean a society without laws and does it does not mean a society without order.  In the simplest form of society, some system of rules is necessary (ex. rules on family relationship, food-gathering, mating etc.)  Such society without rules is not just a society without order but the very negation of society its

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