Busy, Busy, Busy…

This is what juggling several things looks like. It’s that face.

Sorry to everyone who’s been following my blog for not posting in the last ten or so days. As always, law school takes up a tremendous portion of my time, especially now. This semester marked my Jurisprudence class, which was a class dedicated to writing a proper academic paper as part of my graduation requirement from the Thomas Goode Jones School of Law. Never mind the reading for all the rest of my classes, this has easily been the most time-intensive portion of my semester and my time in law school generally.

I love jurisprudence as a subject because it takes two things that I love and combines them into a single field of study: philosophy and law. I wrote a couple of posts on the topic, but basically: jurisprudence is the study of the why and how questions of law. It’s less about interpreting statute and more about how one goes about crafting law as general principles, and whether or not there is a moral quality to it.

I’ve finished my second draft of the paper (not too soon, either, as finals are coming up here in less than a month). Now that I’m in the home stretch, I can finally see the light at the end of the tunnel, but boy, was it tough. Footnotes are no joke.

I apologize for being so woefully absent, but I’m making up for it now! Thanks to everyone who’s stuck with me through the drought!

If you want to vote for me as a witness, cast your vote here! Scroll down until you see the first text box, and type in the name "noblewitness"!

Like what you read? Follow me, @anarcho-andrei! You can also find me on PALnet, Steem Romania, and the Fiction Workshop on the Writer’s Block.

On Writing Academic Papers

As you guys probably know since I won’t shut up about it, I am a member of The Writer’s Block. I love writing fiction, and I’ve done my fair share of opinion pieces here on Steemit. I love to write. But when it comes to academic work, boy is it another universe entirely.

Writing political opinion pieces is simple enough. Start with a premise, offer the facts that you want to apply your premise to, and then draw the conclusion. There’s plenty of sub-arguments within the span of your main argument, such as making the case why a term should be defined one way as opposed to another, or establishing that part of your premise is true because X, Y, and Z. But ultimately, it’s just a giant syllogism: A is C. B has all the qualities of A. Therefore, B is C.

For rigorous academic writing, the kind that you publish in journals, it’s significantly deeper than that. All the same rules for making an effective argument are still there, but, to put it how my jurisprudence teacher puts it, “no one wants to know what you think.” For legal writing, you need to cite every assertion you make that isn’t your own, and you are not expected to make any assertions yourself outside of your premise and your conclusion. Most of my opinion pieces are based in logical reasoning, to avoid citing to authority and thus undermining the strength of my argument on its own. Unfortunately, I don’t have that luxury here.

It’s also a different style of writing. In fiction writing, it’s important to show, not tell. Academic writing is the exact opposite. Illustrative facts are really just facts recited from other sources that support your premise. That’s it. Aside from a clever hook at the beginning of a law review article, the roadmap, and the conclusion, everything else is recitation of evidence that supports your premise. Prose doesn’t have much of a place here.

While it is rewarding to make a well-documented piece of work, I’m less enthusiastic about it than good ol’ writing from the hip.

If you want to vote for me as a witness, cast your vote here! Scroll down until you see the first text box, and type in the name "noblewitness"!

Like what you read? Follow me, @anarcho-andrei! You can also find me on PALnet, Steem Romania, and the Fiction Workshop on the Writer’s Block.

Adventures in Law School – Natural Law Jurisprudence, Pt. 2

Continuing with my discussion of natural law jurisprudence, we’re going to move away from the classical natural law theorists and begin moving forward in time.

Later Natural Law Theorists

Due in large part to the wide array of theorists that followed Thomas Aquinas, I’m not going to focus on many of them. I do want to mention two in particular though. The first is Francisco Suarez. While he approached natural law the same way that Aquinas did, he made a particular distinction between reason and will. For him, law was an act of will, and the ultimate will was that of God’s. God’s will was the Eternal Law, and the human will, in enacting legislation and issuing edicts, had to conform to God’s will in order to be just.

This stands in stark contrast to Hugo Grotius. He applied natural law theory to the international relationships between nations, arguing that nations should treat each other in the same way that individuals do within their community. For him, law was not simply an act of will. As with Aquinas, law was derived by the use of reason. More importantly, he held that this reasonable discernment of law would be the same whether or not there was a God, establishing for the first time since the rise of Christianity a secular basis for natural law.

John Locke

We could spend an entire series of posts discussing just John Locke and his views on human nature and political philosophy. Many authors have, as a matter of fact. However, for the purpose of these posts, we’re going to be discussing his view of the ethical underpinnings of any legal framework: namely, that individuals are endowed with certain inalienable rights.

Like Thomas Hobbes, John Locke was a social contract theorist. Unlike Hobbes, though, Locke did not think that man in a state of nature was a brute who would just as soon destroy his fellow human being as work with them. He did not subscribe to the notion that human beings must be kept in check by some superior authority lest humanity destroy itself. Instead, he recognized that human beings could be good or bad, and that they worked in their own self-interest. He also held that man was a political creature by nature. Even without some sovereign imposing its will on a group of people, people would naturally tend to create cooperative groups.

There are several reasons for this. First, and perhaps foremost, human beings have certain rights that are inherent in them being reasonable creatures. He constructed these rights as a right to life, a right to liberty insofar as that liberty did not also infringe on the liberty of another, and a right to justly acquire and dispose of property. While the founders of the United States replaced property with the Aristotelian construction of “happiness” in the Declaration of Independence, they built their principles on Locke’s construction of individuals rights.

Second, that human beings are governed by their self-interest. This means that most individuals, while not necessarily evil, are not likely to be the best arbiters in disputes to which they are a party. This is a reasonable observation to make; when something is taken from us or broken, we ascribe a higher value to it than it would otherwise be worth, and when we are the ones doing the breaking, we very clearly ascribe a much lower value to it. This makes negotiating and arbitrating disputes difficult

Third, any individual, even one who has rightly arbitrated a dispute where their right have been breached by another party, is only able to rely on his or her own power to take restitution or exact punishment. This very quickly leads to a situation in which the strongest person is immunized from the consequences of his or her actions, and the only recourse is a steady increase in violence.

To solve all of these issues, human beings form political groups. This starts as a community of people, but to address interactions between multiple communities, they will form larger political units. These political units derive their legitimacy from consent, as the mere act of exerting power does not, for Locke, confer any legitimacy or moral high ground to the conqueror. In exchange for agree to limit their liberty, these people create a political union for the purpose of protecting their liberties from outside threats and adjudicating disputes between themselves and others. A just government was one that respected the rights of its citizens, and just law were rules of conduct set down by such a government, constrained by the rights of its citizens.

To the point about obligation to obey law, or what a law really is, Locke held that any political union so constituted can also be unconstituted. If a government began to abuse the rights of its citizens, it would lose its legitimacy. There is no moral obligation to obey an unjust government, and Locke argued that any citizens of such a government were well within their natural authority to disband it. More to the point, an unjust or illegitimate government could impose no morally binding laws on its people, and the people have the right–and arguably the duty–to resist.

John Finnis

John Finnis represents the prevailing modern theory of natural law. For him, any theory of law should, as the classical natural lawyers thought, be considered as a part of a larger ethical whole. This ethical framework seeks to answer two primary questions: how should we live, and how can we discover the answer to ethical questions? The first is a normative analysis and revolves around discovering basic goods that every human being seeks, along with developing rules of conduct to achieve those goods, and the second is a more meta-ethical question. We’re going focus more on the first than the second.

According to finis, there are seven fundamental goods in human life: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and friendship. All of these are intrinsic, as they are pursued for their own value. To give an example, health care is not an end in itself; it is a means to the preservation and betterment of life in the context of health. All of these are also self-evident. Finnis’s conception of self-evident is a little different than Locke’s, though. Whereas Locke meant self-evident to mean true a priori, what Finnis means by self-evident is that they do not derive from some more foundational proposition, and that any argument that attempts to falsify them runs afoul of logic in its attempt.

These seven are, according to Finnis, equivalent in value. The cornerstone of any good life is the pursuit of all of these. However, recognizing that some evaluation will be made in the context of specific situations, there is no prohibition on choosing to pursue one good at the temporary expense of the other. Choosing to pursue a means to achieve aesthetic experience over, say, knowledge is not bad by itself. It becomes bad when the person either rejects any pursuits of some or all the other fundamental goods, or when that person arbitrarily orders the goods in importance such that one is always subordinate to the others.

These seven fundamental goods give rise to moral obligations through intermediate principles, what Finnis referred to as “basic requirements of practical reasonableness.”
– One may never act directly against a basic good (lying, killing, etc.)
– No benefit justifies means that are contrary to a basic good
– One should form a rational plan of life
– One should not have arbitrary preferences among persons
– One should foster the good of the community
– One should not have arbitrary preferences between the goods

Law is a way of effecting some goods that are too complicated to be effected on a large scale. Individuals can pursue goods readily for their own benefit, but as the number of people seeking goods increases, it becomes increasingly more complex to achieve those goods, both separately and working together. Law allows for effective coordination of society to achieve other goods. However, Finnis takes same view of unjust laws as Aquinas. Unjust laws do not merit moral obligation, and should only be followed to the extent they uphold just institutions. If resisting those laws does not cause an action contrary to a basic good, or if the institution creating the laws is no longer just, any individual is morally justified in resisting.

That covers this overview of natural law theory and some prominent theorists’ analysis of natural law. Keep your eyes open for the next post, where we’ll deal with more legal theory before moving on to current US law!

If you want to vote for me as a witness, cast your vote here! Scroll down until you see the first text box, and type in the name "noblewitness"!

Like what you read? Follow me, @anarcho-andrei! You can also find me on PALnet, Steem Romania, and the Fiction Workshop on the Writer’s Block.

Adventures in Law School – Natural Law Jurisprudence, Pt. 1

It’s been a little while since I announced the relaunch of my series on the law and legal studies, and I think the best way to dive into any serious study of the law is to touch on jurisprudence.

Jurisprudence can roughly be understood as the philosophy of law. Rather than focusing on issues of statutory construction and interpreting the text of law, jurisprudence seeks to answer more general, foundational concerns. One of the persistent and overarching questions in jurisprudence is: what is law? This is a question that has as many answers as there have been scholars seeking to answer it, but the question should give you some idea of the focus of jurisprudence. An understanding of jurisprudence and the theories that have arisen within it provides any person studying law a greater clarity on questions of justice, ethics, and how legal frameworks should function.

There’s simply too much information to tackle in a single post on this very broad topic, so I’m going to be providing primers on various topics within jurisprudence. As natural law theory is my favorite jurisprudential theory, I’m going to start with that.

What is Natural Law Theory?

Natural law theory is a legal theory that focuses on universal rules of conduct, derived from some rule set that exists outside of man-made (or positive) law. These theories are generally normative in nature, though they contain descriptive elements. In other words, they’re concerned with what the law ought to be, and they necessarily combine moral evaluations with any evaluations of law. Unlike utilitarianism or legal realism, natural law theory does not discount the moral content of law, nor does it think this is even a good idea. For natural law theorists, law is an expression of a larger ethical framework and does not exist independently from it.

Early Natural Law Theorists

Cicero (106 BC – 43 BC)
While it would certainly be prudent to start with Aristotle or Socrates, classical natural law theory was condensed neatly by the Roman orator Cicero. He offered what was essentially a restatement and synthesis of Stoic theories of natural law, based heavily on classical Greek philosophers. For the Stoics, there was less interest in a comprehensive system of law than there was for a comprehensive ethical system. As stated above, for natural law theorists, law is just one part of a larger whole.

According to Cicero and the Stoics, there is universal law that binds humanity a priori, or that is true prior to being proven true. The focus of these theorists was on how one could discover this universal law. For this, the focus was on the use of practical reason. Humans had the unique feature of reason and logic, and if one applied these to the natural world around oneself, one could derive rules of conduct that applied to all people. There was also a focus on living the good life; a life of virtue. For the Stoics, this was the pursuit of knowledge and the adherence to reason, alongside other more material concerns like good health and sustainable living. Another aspect of the good life was living for the good of one’s community. For the Stoics and Cicero, an individual pursuing good according to natural law was not seeking it only for himself; he was also seeking the good of his community.

The strong emphasis on nature and deriving rules from nature also came with moral implications. The justice of a law depended heavily on whether it conformed to the natural rules one could discover with reason, and they had to comport with the virtues of the theory employed to discover them. Laws that were not in accordance with this reasoned view of human nature were accordingly unjust.

It is important to note, however, that a law being unjust did not mean that it should not be obeyed. To the contrary, in Plato’s Apology, Socrates rejects the notion that he should escape prison and avoid the sentence of death imposed upon him by the Athenian government. For this line of theory, an unjust law was still a law laid down by an authority, and whatever the injustice in this particular case, it should be followed to avoid eroding trust if this was an otherwise just authority.

Thomas Aquinas (1224 – 1274)
Thomas Aquinas was a Catholic scholar who synthesized prior natural law theories with Christianity. While the Stoics were deists, their natural law theory arose from a much different place of understanding than any theory based in the Christian faith. This set a wall between their view of practical reason and their set of virtues and those of Christianity.

To do this, Aquinas devised four groups of laws. First, there is the Eternal Law. This is the will of God in Aquinas’ framework, and it is the law that rules the operation of the universe. Second, there is Divine Law. Divine Law consists of the explicit commandments and proscriptions handed down by God to mankind, such as in the Ten Commandments and through the teachings of Christ. Third, there is Natural Law. Natural law in Aquinas’ view is remarkably similar to that of earlier philosophers, and it is here that he drew on them to bring them into the fold of the new Christian paradigm. Through the use of practical reason, a person could observe the natural world and derive rules of conduct inherent in nature. Lastly, there is Human Law. Human law is simply the positive law that mankind creates through its enactment of edicts and promulgates (spreads word of) in formal structures.

“Good should be done and sought and evil is to be avoided” is the best summation of Aquinas’ view on ethics, and one that he derived himself. However, on the topic of law, good refers specifically to just law. Positive law can either be just or unjust, and the metric for evaluating the justice of a law is whether or not the law comports with both the Divine Law and the Natural Law. Any legal framework should seek to be just, and thus should seek to comport with both of these legal components.

It’s important to note, though, that this does not mean that human positive law must only be natural and divine law in order to be just. Where there are no discernable specific rules of conduct, human positive law can take whatever form it wants to, so long as it doesn’t violate either the natural or divine law. For example, a law prohibiting murder is obviously just, as it comports with both the divine prohibition on murder and avoiding the evil of destroying life. A law declaring a certain speed limit on a road, on the other hand, does not comport with any specific divine rule, and the only evil that speed regulations prevent is avoiding the harm that reckless driving causes. Neither natural or divine law say what that speed should necessarily be, so it falls on human beings using practical reason to come to a reasonable speed limit.

Aquinas recognized that unjust laws were not laws in the true sense of the word. To quote Aquinas, “[i]f, however, in some point [human positive law] conflicts with the law of nature it will no longer be law but rather a perversion of law.” Whereas just laws created a moral obligation to obey them, unjust laws imposed no such obligation. This did not, however, mean that one should disobey unjust laws in every case. To the contrary, Aquinas took the same view that the Stoics before him did: unjust laws should still be obeyed if disobedience caused some greater harm to come to pass. Since evil was to be avoided, resistance to unjust laws, however morally justified, should still be avoided if the act of resisting caused some greater calamity.

That’s it for the first part of this article on natural theory jurisprudence. In the next article, I’ll be discussing later natural law theorists, particularly John Locke, before moving onto John Finnis, the man leading the modern natural law movement.

If you want to vote for me as a witness, cast your vote here! Scroll down until you see the first text box, and type in the name "noblewitness"!

Like what you read? Follow me, @anarcho-andrei! You can also find me on PALnet, Steem Romania, and the Fiction Workshop on the Writer’s Block.

Adventures in Law School – The Reprise!

It’s been a long time since I’ve written about law school and my courses. Well, I think it’s about time I get back to it.

Last year, around the time that I started my first year of law school, I had the ambitious project to compile my notes into posts. I had two purposes in this: first, I wanted to share the information I was learning with everyone here on Steemit. Second, by compiling my lessons into posts, I was going to help myself recall and solidify the information. This was going to be a study tool for me.

Unfortunately, as I found out after the first week, I had no way at all to make that happen. When I wasn’t drowning in my school work and reading, I was drowning in taking care of Kate. And when neither of those were sapping my will to live, I was trying to keep myself emotionally stable after a particularly painful divorce. All of this combined into me disappearing almost completely from Steemit.

But you know what? This year is going to be different.

I’ve got Chelsea here to help me out around the house, and my workload for my classes is dramatically less than it was last year. That means more time for me to share what I’m learning on Steemit in a structured (and hopefully useful) way.

These are the topics I’m going to be covering this semester:

Criminal Procedure – Criminal procedure covers the rules of court that must be observed by the state when pursuing a criminal case against a defendant. For this course, I’m going to be focusing primarily on the protections and prohibitions on government action imposed by the Constitution of the United States.

Family Law – Family law covers a wide array of topics all relating to the disposition of formal relationships between people. This course is going to cover topics ranging from premarital agreements to custody arrangements. There may well be some topics that it won’t cover in depth, but I’m open to looking into questions that anyone may have.

First Amendment and Individual Rights – This is the second half of Constitutional Law. This course focuses on the rights guaranteed by the Bill of Rights in the United States Constitution, how they are interpreted, and where government has the ability to act.

Evidence – The Federal Rules of Evidence are the rules that govern what is considered evidence in a civil or criminal trial, how information offered at trial can be offered into evidence, and what objections can and should be raised by the respective parties to a trial on evidentiary grounds. This course is going to cover the substantive rules that a lawyer must know to effectively present a case.

Jurisprudence – Jurisprudence is better known as the philosophy or theory of law. Discussion of what law is and why individuals have a duty to obey the law fall under jurisprudence. This course is my rigorous writing class, so I won’t have a structured curriculum to follow, but I will be posting notes and sections of my own jurisprudence writing for everyone to peruse and look through. I’d also like to open posts on this topic up for discussion.

This semester is going to be great fun, and I’m looking forward on bringing you all on this journey with me. Finally.

If you want to vote for me as a witness, cast your vote here! Scroll down until you see the the name @noblewitness!

Like what you read? Follow me, @anarcho-andrei! You can also find me on PALnet, Steem Romania, and the Fiction Workshop on the Writer’s Block.