Philosophy: Key Concepts and Theories, Topic 1.2

Philosophy: Distinguishing "A Philosophy" from "The Philosophy"

Understanding "A Philosophy"

A philosophy

• Set of beliefs and attitudes associated to a "way of living" of a person or a group.
• Eg: Musk's philosophy of entrepreneurship.
• A collection of answers of a philosopher of group of philosophers to fundamental questions.
• Eg: Existentialism

Understanding "The Philosophy"

The philosophy

A discipline aimed at approaching fundamental questions, divided since Aristotle into:

• Theoretical: focused on beliefs/understanding the world Ethics O Political philosophy
• Practical: focused on actions/transforming the world O Philosophy of law

Philosophy of Law: Naming Conventions and Justifications

Why "Philosophy of Law" Has Many Names

Why do you think "Philosophy of Law" goes by so many names?

Philosophy of law, also called Legal Philosophy or Jurisprudence reflecting its different aspects.

Descriptive and Explanatory Answers for Legal Philosophy

1. Descriptive answer

• Ontology: the general Theory of Law dealing with the nature and essence of legal systems.
• Ethics and Politics: the Theory of Justice and Human Rights which examines the moral and political justification of law.
• Epistemology: the Theory of Legal Science exploring how we understand and systematize legal knowledge.
• Logics: Legal Methodology, Deontic Logic and Legal Argumentation focusing on the structure and reasoning of legal discourse.

2. Explanatory answer

• Nominalism vs. Realism (Middle Ages) - Different medieval traditions influenced how law was conceptualized, either as a real, universal entity (realism) or as a human-made construct (nominalism).
• Linguistic Turn in Philosophy (20th Century) - The rise of analytical philosophy emphasized language and interpretation, affecting how legal concepts were categorized and named.
• Essentialism vs. Conventionalism (Freeman) - Some scholars (essentialists) argue that "Philosophy of Law" has a core, unchanging essence, while others (conventionalists) see it as a flexible, evolving concept shaped by academic

Jurists vs. Philosophers: Approaches to Law

Bobbio's View on Jurists' Approach

Why do you believe Bobbio considered the approach of jurists better than that of the philosophers?

Of the Philosophers

A subdiscipline Application of general ideas to a certain set of problems. From the general view to the specific view. Infrequent and not always useful. Exception: Hobbes.

Of the Jurists

Core problems of foundation in the very discipline. From the specific knowledge of a certain positive law to general problems. Frequent and diverse. Strong disagreement.

Notable Jurists and Philosophers in Law

Can you name 3 important jurists and 3 philosophers who devoted some of their work to law?

Jurists: Ihering, Kelsen, Bobbio, Hart, Dworkin, Alexy Philosophers: Plato, Aristotle, Augustine, Thomas Aquinas, Hobbes, Hegel

Ancient Legal Systems: Hammurabi's Laws

Origins of Written Laws

The oldest records of written laws Sumerians > Ur-Nammu's laws 2000 BCE. First written laws (cuneiform script). Babylonians > Hammburabi's "Code" 1750 BCE.

• Ruler of Babylon (1795-1750).
• Basalt steles located in strategic points of the Empire.
• Written in Akkadian cuneiform.

Legitimacy of Hammurabi's Laws

What was the source of legitimacy of Hammurabi's laws?

Prologue = Source: divine authority. The gods Anu and Enlil appointed Hammurabi to establish justice and maintain order, positioning his legal authority as divinely sanctioned. This reflects a common theme in ancient legal traditions, where rulers justified their power and laws through religious or divine endorsement.

Philosophical interest

Divine legitimacy of legal authority Today: legal authority is generally derived from popular consent (democracy, social contract theory) or rational justification (rule of law, legal positivism).

Punishment for False Testimony

Why do you think the punishment of false testimony was so harsh?

Disposition 1: "If a man accuses another man and charges him with homicide but cannot bring proof against him, his accuser shall be killed."

Philosophical interest:

• Burden of proof on the accuser: the accuser provides the evidence.
• Extreme retaliation: an eye for an eye. Someone accuses a man of homicide; they suffer the same consequence intended for the accused.
• Deterrence: they want to discourage false testimonies.
• Proportionality.

Importance of Proportionality in Law

Why does proportionality in law matter?

Disposition 196: "If an awilu should blind the eye of another awilu, they shall blind his eye."

Awilu = member of the upper class in Babylon. Free citizen with full civil rights.

Philosophical interest:

• Lex talionis: direct, symmetrical relationship between the crime and its punishment. (eye for eye)
• Retribution theory of punishment. Proportionality ensures that the offender experiences a consequence that reflects the harm they caused.
• Justice as a form of proportion - each harm has a corresponding penality.
• Some level of egality: lex talionis ensured that members of the awilu class were treated equally under the law. A nobleman harming another nobleman faced the same punishment; the privileged were not above justice.

Privileged Groups in Legal Systems

Are there any privileged groups nowadays like the awilu in Babylon at the time of Hammurabi?

Dispositions 198-199: 1 198. If he should blind the eye of a commoner or break the bone of a commoner, he shall weigh and deliver 60 shekels of silver. 1 199. If he should blind the eye of an awilu's slave or break the bone of an awilu's slave, he shall weigh and deliver one-half of his value (in silver).

= theres a hierarchical structure of justice; punishment depends on the social class.

Philosophical interest

• + status = + rights
• Awilu(m) = free citizen
• Muskenum = commoner
• Wardum = slave

Social inequality; before the law, giving higher-status individuals more legal protection. Formal justice (Perelman): equals should be treated equally, and unequals should be treated unequally according to relevant distinctions.

Criticism of Ordeals in Legal Procedures

What is the main criticism of procedures such as ordeals?

Disposition 2: If a man charges another man with practicing witchcraft but cannot bring proof against him, he who is charged with witchcraft shall go to the divine River Ordeal, he shall indeed submit to the divine River Ordeal; if the divine River Ordeal should overwhelm him, his accuser shall take full legal possession of his estate; if the divine River Ordeal should clear that man and should he survive, he who made the charge of witchcraft against him shall be killed: he who submitted to the divine River Ordeal shall take full legal possession of his accuser's estate.

Philosophical interest:

• Superstition: assumes divine intervention will reveal the truth, but there is no empirical or logical foundation for this assumption.
• Irrational mean: the method does not rely on material evidence or rational argumentation. Instead, it presumes guilt or innocence based on an arbitrary and uncontrollable physical event (e.g., surviving the river ordeal).
• Moral luck: the fate of the accused depends not on their actual guilt or innocence but on uncontrollable external factors (e.g., strength, swimming ability, or sheer chance).

Evolution of Legal Systems

Can we speak of evolution in legal systems? How?

Hammurabi's laws

• Divine justification of law
• Strong social hierarchies Lex talionis
• Unification (Empire)
• Promulgation (steles)

Today

Importance of proportionality Different approaches to punishment Ideal of egality (human rights, human dignity) Mostly non-religious justification of law

Socrates: A Landmark in Philosophy

Pre-Socratic Philosophy: Focus on Nature

TOPIC 2.1 Socrates as a Hallmark in the History of Philosophy

Pre-Socratics: Philosophy of Nature Before Socrates, Greek philosophy mainly revolved around understanding the natural world. The lonians (Thales, Heraclitus) >explanations through elements like water and fire, while the Atomists (Democritus, Leucippus) believed that everything was composed of atoms and void. The Italics (Pythagoreans, Eleatics) focused on numbers and the concept of the One.

Socrates' Era: Shift to Humanity and Ethics

Socrates' Time: Philosophy of Humanity Socrates shifted the focus from nature to human existence, ethics, and knowledge. While the Sophists (e.g., Protagoras, Gorgias) emphasized relativism and rhetoric, Socrates introduced the Socratic method, seeking universal truths through dialogue and questioning. His influence led to the development of multiple Socratic schools, such as:

• Academic (Plato) - Focused on idealism and forms.
• Cynic (Antisthenes) - Emphasized asceticism and rejection of materialism.
• Cyrenaic (Aristippus) - Valued pleasure as the highest good.
• Megarian (Euclides) - Explored logical paradoxes and dialectics.
• Elian (Phaedo) - Focused on Socratic ethics.

Socrates' Fear of Social Accusations

Why Socrates Feared Social Accusations More than Legal Accusations

Socrates distinguished between social accusations (from playwright Aristophanes) and legal accusations (from Anytus, Meletus, and Lycon).

1. Social Accusations (More Dangerous)

• Labeled as a Sophist: Many believed Socrates was a paid teacher, misleading the youth like the Sophists.
• Accused of Rejecting the Gods: He was rumored to study natural philosophy, contradicting traditional religious beliefs.
• Portrayed as Manipulative: Aristophanes' play The Clouds depicted him as a deceiver who taught people how to win arguments dishonestly.

> These accusations were influencing public opinion long before his trial, shaping how society viewed him. Since most jurors were influenced by social perceptions, their prejudices played a crucial role in his condemnation.

2. Legal Accusations (Less Dangerous)

• Impiety: Not believing in the gods of Athens.
• Corrupting the Youth: Encouraging young people to challenge authority and think critically.

> Socrates directly refuted these claims in his Apology, using logical arguments to show their contradictions. However, because public sentiment was already against him, the legal charges served as a mere formality.

Socrates' Interpretation of the Oracle

How Did Socrates Interpret the Oracle?

The Oracle of Delphi famously declared that "no one is wiser than Socrates." Initially, Socrates was skeptical of this statement because he did not consider himself wise. To investigate, he questioned those who were considered wise men (sophos)-politicians, poets, and artisans-to see if they truly possessed wisdom. Through this process, he realized that while these individuals believed they were wise, they actually were not. His conclusion: "I am wiser in this one small respect: I do not think I know what I do not." (he believed he was wise because he was aware that he did not know everything, unlike the politician, artist ... who were ignorant)

This interpretation became the foundation of Socratic wisdom, which emphasizes intellectual humility-true wisdom lies in recognizing one's own ignorance.

Socrates as the "Gadfly" of Athens

The "gadfly" of Athens

Socrates' relentless questioning shaped his role as the "gadfly" of Athens- Questioning the grounds of every art and knowledge and consequently every artist and so called "wise" man (an irritating but necessary critic who provoked the city into self- examination)

1. Challenging the "Wise"

• Socrates used his Maieutic Method (or Socratic Method) to question experts, artists, and politicians, exposing their ignorance.