An introduction to the philosophy of Law

JURISPRUDENCE NOTES. An Introduction to the Philosophy of Law and Its Applications Class-room lectures edited, enlarged and updated. By Daudi B. Mswahela., 2020/21 Mzumbe University, Main Campus – Morogoro. Series 1 [email protected] Jurisprudence Notes - An Introduction to the Philosophy of Law. PREFACE This document covers Material Notes on Jurisprudence basing on Law 320 Jurisprudence & Legal Theory I (Mzumbe University). This can enable students (LLB III) to understand well jurisprudence. However, this document should not be used as final and conclusive reference during the pursuit of the course of jurisprudence. Hence students are needed to refer other literatures cited and referred also in this manual for further clarification and extensive knowledge development. ACKNOWLEDGEMENT First and fore most I thank God, the Almighty for his endless blessings; Secondly, I thanks to my friend Mr Mzopola H. E. who played a key role in advising on this work despite having other responsibilities, without him this work could not be a success. I also convey my sincere gratitude to Mr. Zachalia P. S. & Mr. Makori L. M., for their support. Moreover, I express my profound and sincere gratitude to my discussion members (study unit) who have been contributing to some of the aspects which in one way or another were not easily understood. I really appreciate for their contributions. Page ii of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. COPYRIGHT This document is a copyright material protected under the Berne Convention, the Copyright and Neighboring Rights Act of Tanzania and National enactments, in that behalf, on intellectual property. It may not be reproduced by any means, in full or in part, except for short extracts in fair dealings; for research or private study, critical scholarly review or discourse with an acknowledgement, without the written permission of the author. All rights reserved. Page iii of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. EDITOR’S NOTE Welcome dear readers! I am pleased to present to you a Class Notes called ‘Jurisprudence Notes., An Introduction to the Philosophy of Law and Its Applications’ that is dedicated to all Law students around all Universities in Tanzania. Page iv of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. TABLE OF CONTENTS PREFACE ...................................................................................................................................... ii ACKNOWLEDGEMENT ............................................................................................................ ii COPYRIGHT................................................................................................................................ iii EDITOR’S NOTE ......................................................................................................................... iv 1.0 INTRODUCTION............................................................................................................ 1 1.1 DEFINITIONS ................................................................................................................... 2 1.2 BRANCHES OF PHILOSOPHY.................................................................................... 3 1.2.1. Metaphysics ..................................................................................................................... 3 1.2.1.1 What is Metaphysics? ...................................................................................................... 3 1.2.1.2 Why is Metaphysics important? .................................................................................... 4 1.2.1.3 What are the key elements of a rational metaphysics? ............................................... 4 1.2.2. Epistemology .................................................................................................................... 4 1.2.2.1. What is Epistemology? ................................................................................................... 4 1.2.2.2. Why is Epistemology important? ................................................................................. 5 1.2.2.3 What are the key elements of a proper Epistemology? .............................................. 6 1.2.2.3 Methods of Epistemology. ............................................................................................ 6 1. Intuitive knowledge;......................................................................................................... 6 2. Authoritarian knowledge; ............................................................................................... 6 3. Logical knowledge; ........................................................................................................... 6 4. Empirical knowledge........................................................................................................ 6 1.2.3. Ethics. ................................................................................................................................ 7 1.2.3.1 What is Ethics?.................................................................................................................. 7 1.2.3.2 Why is Ethics important? ................................................................................................ 7 1.2.3.3 What are the key elements of a proper Ethics? ............................................................ 8 1.2.4. Logic................................................................................................................................... 8 1.2.4.1 What is Logic? .................................................................................................................. 8 1.3 HISTORY OF PHILOSOPHY ........................................................................................ 9 1.3.1 MAJOR PHILOSOPHICAL ERA AND THEIR CONTRIBUTION. ..................... 9 i) Greek and Roman Philosophy era, ........................................................................................ 9 ii) Medieval Philosophy era,....................................................................................................... 9 Page i of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. iii) The modern Philosophy era, ................................................................................................ 9 iv) 19th Century Philosophy era and ......................................................................................... 9 v) Contemporary Philosophy era. ............................................................................................. 9 1.3.1.1GREEK AND ROMAN PHILOSOPHY ERA ............................................................. 9 Note: This category of philosophical era is divided into three classifications. ................. 10 1. Pre-Socratics philosophers. ............................................................................................ 10 2. Sophists philosophers. .................................................................................................... 10 3. Anti-sophists philosophers. ........................................................................................... 10 PRE-SOCRATICS & THEIR CONTRIBUTIONS .............................................................. 10 1. Thales of Miletus (c. 620 B.C.E.—c. 546 B.C.E.)......................................................... 12 Thales says Water is the Primary Principle. ........................................................................... 13 Why the Primary Source of the Universe is Water? ............................................................. 14 2. Anaximander (l. c. 610 - c. 546 BCE) ............................................................................ 14 Anaximander on cosmology/universe /world..................................................................... 15 The “Boundless” as Principle ................................................................................................... 15 3. Anaximenes (528 B.C.E.) ............................................................................................... 16 The Doctrine of Air .................................................................................................................... 17 The Doctrine of Change ............................................................................................................ 17 4. Pythagoras (l. c. 571 - c. 497 BCE) ................................................................................. 19 5. Xenophanes (l. c. 570 - c. 478 BCE) ............................................................................... 19 6. Heraclitus – l. c. 500 BCE ............................................................................................... 20 Flux and Fire ............................................................................................................................... 21 7. Parmenides – l. c. 485 BCE ............................................................................................ 22 8. Zeno (465 B.C.E) .............................................................................................................. 23 9. Empedocles (484-424 BCE) ............................................................................................ 24 10. Anaxagoras (l. c. 500 - c. 428 BCE) ................................................................................ 27 11. The Atomists ........................................................................................................................ 28 Atoms and the Void ................................................................................................................... 28 SOPHIST PHILOSOPHERS ................................................................................................... 29 1. Protagoras ............................................................................................................................... 30 Theory of knowledge;................................................................................................................ 30 Page ii of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Theory of ethic; ........................................................................................................................... 32 Theory on religion;..................................................................................................................... 33 2. Gorgias: ................................................................................................................................... 33 3. Callicles ................................................................................................................................... 35 4. Thrasymachus ........................................................................................................................ 35 Theory of justice; ........................................................................................................................ 35 ANTI-SOPHIST PHILOSOPHY ............................................................................................ 36 1. Socrates ................................................................................................................................... 37 Socrates as a philosopher; ......................................................................................................... 37 Knowledge is Virtue .................................................................................................................. 38 Why Knowledge is Virtue? ....................................................................................................... 38 Two kinds of virtue .................................................................................................................. 39 The Socratic Method at its best; ............................................................................................... 40 The Socratic Method at its Worst (ending of Socrates method); ......................................... 41 Socrates' Moral Thought; .......................................................................................................... 42 2. Plato (427—347B.C.) .............................................................................................................. 43 Theory of Knowledge; ............................................................................................................... 44 Allegory of the Cave Meaning ................................................................................................. 44 The Allegory of the Cave’ by Plato: Summary and Meaning .............................................. 45 Theory of the Forms;.................................................................................................................. 49 What Are the Forms? ................................................................................................................. 50 What Is the Relation of Forms to Things? .............................................................................. 51 What Is the Relation of Forms to Each Other? ....................................................................... 51 How Do We Know the Forms? ................................................................................................ 52 Plato’s Moral Philosophy .......................................................................................................... 53 The concept of the soul;............................................................................................................. 54 Virtue as Fulfillment of Function; ............................................................................................ 55 Plato’s Political Philosophy; ..................................................................................................... 56 The State as a Giant Person;...................................................................................................... 56 The relation between the individual and the state; ............................................................... 57 Plato’s View of the Cosmos; (original of the world/universal) .......................................... 59 Page iii of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 3. Aristotle (384–322 B.C.) ........................................................................................................ 62 Aristotle in Formal Logic; ......................................................................................................... 62 The Syllogism; ............................................................................................................................ 63 Matter and Form; ....................................................................................................................... 63 Aristotle in Politics; .................................................................................................................... 64 Types of state .............................................................................................................................. 65 Differences and Inequalities; .................................................................................................... 66 CLASSICAL PHILOSOPHY AFTER ARISTOTLE ............................................................ 67 1. EPICUREANISM SCHOOL OF THOUGHT; .......................................................... 68 God and Death; .......................................................................................................................... 68 The Pleasure Principle; .............................................................................................................. 68 2. STOIC SCHOOL OF THOUGHT;.............................................................................. 69 Wisdom and Control versus Pleasure .................................................................................... 70 Matter as the Basis of All Reality ............................................................................................. 71 God in Everything...................................................................................................................... 71 Fate and Providence .................................................................................................................. 72 Ethics and the Human Drama; ................................................................................................. 72 On Cosmopolitanism and Justice; ........................................................................................... 73 Cosmopolitanism, ...................................................................................................................... 73 3. SKEPTICS SCHOOL OF THOUGHT; ...................................................................... 75 BIBLIOGRAPHY....................................................................................................................... 76 Page iv of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. CHAPTER ONE INTRODUCTION TO PHILOSOPHY 1.0 INTRODUCTION Each of us has a philosophy, even though we may not be aware of it. We all have some ideas concerning physical objects, our fellow persons, the meaning of life, death, God, right and wrong, beauty and ugliness, and the like. Of course, these ideas are acquired in a variety of ways, and they may be vague and confused. We are continuously engaged, especially during the early years of our lives, in acquiring views and attitudes from our family, from friends, and from various other individuals and groups. Philosophy deals with the study of general and fundamental problems concerning matters such as existence, knowledge, values, reason, mind, and language. This study is very important because philosophy can not only help improve critical thinking skills, but also it can help provide us with knowledge of logic that can greatly help improve critical thinking. Henceforth this chapter entails overview of philosophy.1 The word philosophy is derived from the Greek words 'Phileo' (love) and Sophia' (wisdom). A love of wisdom is the essence for any philosophy investigation.2The subject of philosophical inquiry is the reality itself. 1 See EliudKitime, A Student Manual on Jurisprudence, p 34 See Philosophy – Wikipedia available at https://en.wikipedia.org/wiki/Philosophy. 2 Page 1 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1.1 DEFINITIONS Apart from the argument that there is no standard and agreed definition of the word philosophy but a definition of philosophy can be offered from a number of perspectives. Here we present five. 1. Philosophy is a set of views or beliefs about life and the universe, which are often held uncritically. 2. Philosophy is a process of reflecting on and criticizing our most deeply held conceptions and beliefs. 3. Philosophy is a rational attempt to look at the world as a whole. Philosophy seeks to combine the conclusions of the various sciences and human experience into some kind of consistent world view. 4. Philosophy is the logical analysis of language and the clarification of the meaning of words and concepts. 5. Philosophy is a group of perennial problems that interest people and for which philosophers always have sought answers. Philosophy presses its inquiry into the deepest problems of human existence. Generally, Philosophy, is a search for a general understanding of values and reality by chiefly speculative rather than observational means. It signifies a Page 2 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. natural and necessary urge in human beings to know themselves and the world in which they live and move and have their being.3 1.2 BRANCHES OF PHILOSOPHY There are different branches of philosophy-epistemology, metaphysics, etc. As a branch of knowledge, it covers main aspects. 1.2.1. Metaphysics 1.2.1.1 What is Metaphysics? Metaphysics is the branch of philosophy responsible for the study of existence. It is the foundation of a worldview. It answers the question "What is?" It encompasses everything that exists, as well as the nature of existence itself. It says whether the world is real, or merely an illusion. It is a fundamental view of the world around us. Or, Metaphysics is the study of the most general features of reality, such as existence, time, objects and their properties, wholes and their parts, events, processes and causation and the relationship between mind and body. 4 Metaphysics includes cosmology, the study of the world in its entirety and ontology, the study of being, example why are you here? We try to analyses the very existence of man and other realities.5 3 See Jenny Teichmann and Katherine C. Evans, Philosophy: A Beginner's Guide (Blackwell Publishing,1999), p. 1 4 See Adler, Mortimer J. (28 March 2000). “How to Think About the Great Ideas:” From the Great Books of Western Civilization. Chicago, Ill.: Open Court. 5See Quinton, Anthony, The ethics of philosophical practice, p. 666 Page 3 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1.2.1.2 Why is Metaphysics important? Metaphysics is the foundation of philosophy. Without an explanation or an interpretation of the world around us, we would be helpless to deal with reality. We could not feed ourselves, or act to preserve our lives. The degree to which our metaphysical worldview is correct is the degree to which we are able to comprehend the world, and act accordingly. Without this firm foundation, all knowledge becomes suspect. Any flaw in our view of reality will make it more difficult to live. 1.2.1.3 What are the key elements of a rational metaphysics? (i). Reality is absolute. It has a specific nature independent of our thoughts or feelings. The world around us is real. It has a specific nature and it must be consistent to that nature. A proper metaphysical worldview must aim to understand reality correctly. (ii). The physical world exists, and every entity has a specific nature. It acts according to that nature. When different entities interact, they do so according to the nature of both. Every action has a cause and an effect. Causality is the means by which change occurs, but the change occurs via a specific nature. 1.2.2. Epistemology 1.2.2.1. What is Epistemology? Epistemology is the study of our method of acquiring knowledge. It answers the question, "How do we know?" It encompasses the nature of concepts, the Page 4 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. constructing of concepts, the validity of the senses, logical reasoning, as well as thoughts, ideas, memories, emotions, and all things mental. It is concerned with how our minds are related to reality, and whether these relationships are valid or invalid. Or, Epistemology is the study of the putative sources of knowledge, including intuition, a priori reason, memory, perceptual knowledge, self-knowledge and testimony. Epistemology entails the theories of knowledge; we ask how do you know? How does the child know and what assist him to know?6 1.2.2.2. Why is Epistemology important? Epistemology is the explanation of how we think. It is required in order to be able to determine the true from the false, by determining a proper method of evaluation. It is needed in order to use and obtain knowledge of the world around us. Without epistemology, we could not think. More specifically, we would have no reason to believe our thinking was productive or correct, as opposed to random images flashing before our mind. With an incorrect epistemology, we would not be able to distinguish truth from error. The consequences are obvious. The degree to which our epistemology is correct is the degree to which we could understand reality, and the degree to which we could use that knowledge to promote our lives and goals. Flaws in epistemology will make it harder to accomplish anything. 6See Greco, John, ed. (1 October 2011). The Oxford Handbook of Skepticism (1st Ed.). Oxford University Press. Page 5 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1.2.2.3 What are the key elements of a proper Epistemology? Our senses are valid, and the only way to gain information about the world. Reason is our method of gaining knowledge, and acquiring understanding. Logic is our method of maintaining consistency within our set of knowledge. Objectivity is our means of associating knowledge with reality to determine its validity. Concepts are abstracts of specific details of reality, or of other abstractions. A proper epistemology is a rational epistemology. 1.2.2.3 Methods of Epistemology. In research philosophy there are many different sources of knowledge. Sources of knowledge can be divided into the following four categories: 1. Intuitive knowledge; is based on the intuition, belief, faith etc. Human feelings play greater role in intuitive knowledge compared to reliance of facts. 2. Authoritarian knowledge; this relies on the literature review or information that has obtained from books, research paper, experts etc. 3. Logical knowledge; is a creation of new knowledge through the application of logical reasoning. 4. Empirical knowledge; relies on objective facts that have been established and can be demonstrated. Page 6 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1.2.3. Ethics. 1.2.3.1 What is Ethics? Ethics is the branch of study dealing with what is the proper course of action for man. It answers the question, "What do I do?" It is the study of right and wrong in human endeavors. At a more fundamental level, it is the method by which we categorize our values and pursue them. Or, Ethics is the study of about morals. Ethics has been defined as the science of human conduct. It strives for ideal human behaviour. It studies and considers what are good and bad conduct, right and wrong values, and good and evil.7 Its primary investigations include how to live a good life and identifying standards of morality. It also includes meta-investigations about whether a best way to live or related standards exists. The main branches of ethics are normative ethics, meta-ethics and applied ethics.8 1.2.3.2 Why is Ethics important? Ethics is a requirement for human life. It is our means of deciding a course of action. Without it, our actions would be random and aimless. There would be no way to work towards a goal because there would be no way to pick between a limitless number of goals. Even with an ethical standard, we may be unable to pursue our goals with the possibility of success. To the degree 7See 8See Shapin, Steven (1 January 1998). The Scientific Revolution (1st Ed.). University of Chicago Press Sartwell, Crispin (1 January 2014). Zalta, Edward N., ed. Beauty (Spring 2014 ed.). Page 7 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. which a rational ethical standard is taken, we are able to correctly organize our goals and actions to accomplish our most important values. Any flaw in our ethics will reduce our ability to be successful in our endeavors. 1.2.3.3 What are the key elements of a proper Ethics? A proper foundation of ethics requires a standard of value to which all goals and actions can be compared to. This standard is our own lives, and the happiness which makes them livable. This is our ultimate standard of value, the goal in which an ethical man must always aim. It is arrived at by an examination of man's nature, and recognizing his peculiar needs. A system of ethics must further consist of not only emergency situations, but the day to day choices we make constantly. It must include our relations to others, and recognize their importance not only to our physical survival, but to our well-being and happiness. It must recognize that our lives are an end in themselves, and that sacrifice is not only not necessary, but destructive. 1.2.4. Logic 1.2.4.1 What is Logic? Logic is a study of concept reasoning /argumentation. It is the science that studies the formal processes used in thinking and reasoning. It deals with the principles and criteria of validity of inference and demonstration.9 It consists of the systematic study of the form of arguments. A valid argument is one where there is a specific relation of logical support between the assumptions of the argument and its conclusion.10 9 See Feyerabend, Paul; Hacking, Ian (11 May 2010). Against Method (4th Ed.). Verso See PLATO, Hippias Major | Loeb Classical Library" Loeb Classical Library Retrieved27 October 2016 10 Page 8 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1.3 HISTORY OF PHILOSOPHY Generally, history of philosophy can be traced back as human society began existing hence philosophy cannot be separated from the development of human societies.11 Hence history of philosophy can be explained in relation to the levels of human development.12 Philosophy in each era was determined by the level of development of that society at that time. For instance, in primitive stage of development people was simply hunting and gathering. Religion came to take the place of myth and there were ecclesiastic courts, which were not developed.13 1.3.1 MAJOR PHILOSOPHICAL ERA AND THEIR CONTRIBUTION. i) Greek and Roman Philosophy era, ii) Medieval Philosophy era, iii) The modern Philosophy era, iv) 19th Century Philosophy era and v) Contemporary Philosophy era. 1.3.1.1 GREEK AND ROMAN PHILOSOPHY ERA After the Greeks, it was the turn of Romans to inquire into the domain of Nature, Law and Justice. They were inspired heavily by the Greeks, particularly the philosophy of the Stoics and attempted to give shape to the hitherto abstract forms of Law and Justice. 11 See EliudKitime, A Student Manual on Jurisprudence, p 37. 12 See Brewer, Talbot (11 June 2011). The Retrieval of Ethics (1st Ed.). Oxford; New York: Oxford University Press 13 See Garfield (Editor), Edelglass (Editor); The Oxford Handbook of World Philosophy, Introduction. Page 9 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Note: This category of philosophical era is divided into three classifications. 1. Pre-Socratics philosophers. 2. Sophists philosophers. 3. Anti-sophists philosophers. PRE-SOCRATICS & THEIR CONTRIBUTIONS The Pre-Socratic Philosophers are defined as the Greek thinkers who developed independent and original schools of thought from the time of Thales of Miletus (l. c. 546 BCE) to that of Socrates of Athens (470/469-399 BCE). They are known as Pre-Socratics because they pre-date Socrates. Thales of Miletus initiated the intellectual movement that produced the works now known as ancient Greek philosophy by inquiring into the First Cause of existence, the matter from which all else came, which was also the causative factor in its becoming. There are over 90 Pre-Socratic philosophers, all of whom contributed something to world knowledge, but scholar Forrest E. Baird has pared that number down to a more manageable 10 major thinkers whose contributions directly or indirectly influenced Greek culture and the later works of Socrates, Plato and Aristotle: Page 10 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. S/N PHILOSOPHER YEAR 01 Thales of Miletus 620 B.C.E.—c. 546 B.C.E. 02 Anaximander 610—546 B.C.E. 03 Anaximenes 528 B.C.E. 04 Pythagoras 571 - c. 497 BCE 05 Xenophanes of Colophon 570 - c. 478 BCE 06 Heraclitus of Ephesus 500 BCE 07 Parmenides 485 BCE 08 Zeno of Elea 465 BCE 09 Empedocles 484-424 BCE 10 Anaxagoras 500 - c. 428 BCE 11 Atomists - Page 11 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1. Thales of Miletus (c. 620 B.C.E.—c. 546 B.C.E.) The ancient Greek philosopher Thales was born in Miletus in Greek Ionia.14 Only two sayings are recorded of Thales of Miletus (c.625–545 bc), traditionally the founding father of Greek philosophy. They illustrate the melange of science and religion.15 1. ‘All things are full of gods’, and 2. ‘Water is the first principle of everything’. Thales was a geometer, the first to discover the method of inscribing a rightangled triangle in a circle; he celebrated this discovery by sacrificing an ox to the gods (D.L. 1. 24–5). He measured the height of the pyramids by measuring their shadows at the time of day when his own shadow was as long as he was tall. He put his geometry to practical use: having proved that triangles with one equal side and two equal angles are congruent, he used this result to determine the distance of ships at sea.16 Thales also had a reputation as an astronomer and a meteorologist. In addition to predicting the eclipse, he is said to have been the first to show that the year contained 365 days, and to determine the dates of the summer and winter solstices. He studied the constellations and made estimates of the sizes of the sun and moon. He turned his skill as a weather forecaster to good account: foreseeing an unusually good olive crop, he took a lease on all the 14 Thales of Miletus _ Internet Encyclopedia of Philosophy.mhml. Anthony K., (2004), “A New History of Western Philosophy:” Ancient Philosophy. Oxford University Press Inc., New York. Pg. 5 16 Ibid. 15 Page 12 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. oil mills and made a fortune through his monopoly. Thus, Aristotle said, he showed that philosophers could easily be rich if they wished (Pol. 1. 11. 1259a6–18).17 Thales was reckoned as one of the Seven Sages, or wise men, of Greece, on a par with Solon, the great legislator of Athens. He is credited with a number of aphorisms. He said that before a certain age it was too soon for a man to marry; and after that age it was too late. When asked why he had no children, he said ‘Because I am fond of children.’18 Thales says Water is the Primary Principle. According to Aristotle, Thales was the first to ask, "What is the basic 'stuff' of the universe?" (Baird, 8) as in, what was the First Cause of existence, from what element or force did everything else proceed? Thales claimed it was water because whatever the First Cause was had to be a part of everything that followed. When water was heated it became air (vapor), when it was cooled it became a solid (ice), added to earth, it became mud and, once dried, it became solid again, under pressure, it could move rocks, while at rest, it provided a habitat for other living things and was essential to human life. It seemed clear to Thales, then, that the underlying element of creation had to be water.19 Anthony K., (2004), “A New History of Western Philosophy:” Op. Cit. pg. 5. Ibid. 19 Baird, F. E. Philosophic Classics: Ancient Philosophy. Routledge, 2010. 17 18 Page 13 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Why the Primary Source of the Universe is Water? Thales went further and said that everything came from and was in some sense made out of water. Again, his reasons were obscure, and Aristotle could only conjecture that it was because all animals and plants need water to live, or because semen is moist (Metaph. A 3. 983b17–27).20 2. Anaximander (l. c. 610 - c. 546 BCE) It is easier to come to grips with the cosmology of Thales’ junior compatriot Anaximander of Miletus (d. c.547 bc). We know rather more about his views, because he left behind a book entitled ‘On Nature’, written in prose, a medium just beginning to come into fashion. Like Thales he was credited with a number of original scientific achievements: 1. The first map of the world, the first star chart, the first Greek sundial, and 2. An indoor clock as well. He taught that the earth was cylindrical in shape, like a stumpy column no higher than a third of its diameter. Around the world were gigantic tyres full of fire; each tyre was punctured with a hole through which the fire could be seen from outside, and the holes were the sun and moon and stars. Blockages in the holes accounted for eclipses of the sun and phases of the moon. The celestial fire which is nowadays largely hidden was once a great ball of flame around the infant earth; when this ball exploded, the fragments grew tyres like bark around themselves. 20 Anthony K., (2004), “A New History of Western Philosophy:” Op. Cit. pg. 5. Page 14 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Anaximander was the author of the first surviving lines of Western philosophy. He speculated and argued about “the Boundless” as the origin of all that is. He also worked on the fields of what we now call geography and biology. Moreover, Anaximander was the first speculative astronomer.21 Anaximander on cosmology/universe /world Anaximander’s cosmology is more sophisticated than Thales’ in several ways22, but here we present two of several ways. 1. First of all, he does not look for something to support the earth: it stays where it is because it is equidistant from everything else and there is no reason why it should move in any direction rather than any other (DK 12 A11; Aristotle, Cael. 2. 13. 295b10). 2. Secondly, he thinks it is an error to identify the ultimate material of the universe with any of the elements we can see around us in the contemporary world, such as water or fire. The fundamental principle of things, he said, must be boundless or undefined (apeiron). Anaximander’s Greek word is often rendered as ‘the Infinite’, but that makes it sound too grand. The “Boundless” as Principle According to Aristotle and Theophrastus, the first Greek philosophers were looking for the “origin” or “principle” (the Greek word “archê” has both meanings) of all things. Anaximander is said to have identified it with “the Boundless” or “the Unlimited” (Greek: “apeiron,” that is, “that which has no 21 22 Anaximander _ Internet Encyclopedia of Philosophy.mhtml Anthony K., (2004), “A New History of Western Philosophy:” Op. Cit. pg. 5. Page 15 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. boundaries”). Already in ancient times, it is complained that Anaximander did not explain what he meant by “the Boundless.” More recently, authors have disputed whether the Boundless should be interpreted as spatially or temporarily without limits, or perhaps as that which has no qualifications, or as that which is inexhaustible. Some scholars have even defended the meaning “that which is not experienced,” by relating the Greek word “apeiron” not to “peras” (“boundary,” “limit”), but to “perao” (“to experience,” “to apperceive”). The suggestion, however, is almost irresistible that Greek philosophy, by making the Boundless into the principle of all things, has started on a high level of abstraction. On the other hand, some have pointed out that this use of “apeiron” is atypical for Greek thought, which was occupied with limit, symmetry and harmony. The Pythagoreans placed the boundless (the “apeiron”) on the list of negative things, and for Aristotle, too, perfection became aligned with limit (Greek: “peras”), and thus “apeiron” with imperfection. 3. Anaximenes (528 B.C.E.) Anaximenes was a generation younger than Anaximander, was the last of the trio of Milesian cosmologists. In several ways he is closer to Thales than to Anaximander, but it would be wrong to think that with him science is going backwards rather than forwards. Like Thales, he thought that the earth must rest on something, but he proposed air, rather than water, for its cushion. The earth itself is flat, and so are the heavenly bodies.23 23 Anthony K., (2004), “A New History of Western Philosophy:” Op. Cit. pg. 6. Page 16 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. The Doctrine of Air Anaximenes, thought to be Anaximander’s student, claimed air as the First Cause.24 Anaximenes proposed air as the basic world principle. While at first his thesis may seem a step backwards from the more comprehensive (like Anaximander’s unlimited) to the less comprehensive particular (like Thales’ water), Anaximenes added an important point. He explained a process by which the underlying one (air) becomes the observable many: By rarefaction, air becomes fire, and, by condensation, air becomes, successively, wind, water, and earth. Observable qualitative differences (fire, wind, water, earth) are the result of quantitative changes, that is, of how densely packed is the basic principle. This view is still held by scientists.25 Anaximenes’ definition of “air” and its mutations suggested a First Because which defined life as a constant state of flux, of change. As air became rarefied or condensed or so on, it changed in form; therefore, change was an important element of the First Cause. The Doctrine of Change Given his doctrine that all things are composed of air, Anaximenes suggested an interesting qualitative account of natural change: [Air] differs in essence in accordance with its rarity or density. When it is thinned it becomes fire, while when it is condensed it becomes wind, then cloud, when still more condensed it becomes water, then earth, then stones. Everything else comes from these. (DK13A5).26 24 Anaximenes _ Internet Encyclopedia of Philosophy.mhtml Anthony K., (2004), “A New History of Western Philosophy:” Op. Cit. pg. 6. 26Anaximenes _ Internet Encyclopedia of Philosophy.mhtml 25 Page 17 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Using two contrary processes of rarefaction and condensation, Anaximenes explains how air is part of a series of changes. Fire turns to air, air to wind, wind to cloud, cloud to water, water to earth and earth to stone. Matter can travel this path by being condensed, or the reverse path from stones to fire by being successively more rarefied. Anaximenes provides a crude kind of empirical support by appealing to a simple experiment: if one blows on one’s hand with the mouth relaxed, the air is hot; if one blows with pursed lips, the air is cold (DK13B1). Hence, according to Anaximenes we see that rarity is correlated with heat (as in fire), and density with coldness, (as in the denser stuffs). Anaximenes was the first recorded thinker who provided a theory of change and supported it with observation. Anaximander had described a sequence of changes that a portion of the boundless underwent to form the different stuffs of the world, but he gave no scientific reason for changes, nor did he describe any mechanism by which they might come about. By contrast, Anaximenes uses a process familiar from everyday experience to account for material change. He also seems to have referred to the process of felting, by which wool is compressed to make felt. This industrial process provides a model of how one stuff can take on new properties when it is compacted.27 27 Anaximenes _ Internet Encyclopedia of Philosophy.mhtml Page 18 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 4. Pythagoras (l. c. 571 - c. 497 BCE) Pythagoras’ concepts – including his famous Pythagorean Theorem – were developed from Egyptian ideas but he reworked these to make them distinctly his own.28 Pythagoras: This concept was developed further by Pythagoras who claimed number – mathematics - as the underlying principle of Truth. In the same way that number has no beginning or ending, neither does creation. The concept of transformation is central to the Pythagorean vision; the human soul, Pythagoras claimed, is immortal, passing through many different incarnations, life after life, as it acquires new knowledge of the world as experienced in different forms. Pythagoras’ concepts – including his famous Pythagorean Theorem – were definitely developed from Egyptian ideas, but he reworked these to make them distinctly his own. He wrote nothing down and so much of his thought has been lost, but from what is known, it is clear his concept of the Transmigration of Souls (reincarnation) greatly influenced Plato’s belief regarding immortality. 5. Xenophanes (l. c. 570 - c. 478 BCE) The concept of an eternal soul suggested some governing force which created it and to which that soul would one day return after death. Pythagoras included this concept in his teachings which focused on personal salvation through spiritual discipline but does not define what that force is. 28 Samuel E. S. & James F., (2012), A History of Philosophy., McGraw-Hill Education (Asia) and Beijing World Publishing Company. Pg 11. Page 19 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Xenophanes would later fill in this blank with his concept of a single God.29 He writes: “There is one god, among gods and men the greatest, not at all like mortals in body or in mind. He sees as a whole, thinks as a whole, and hears as a whole. But without toil, he sets everything in motion by the thought of his mind.” (DK 23-25, Freeman, 23) Xenophanes denied the validity of the anthropomorphic gods of Greece in arguing for a single spiritual entity which had created all things and set them in motion. Once in motion, human beings continued on a course until death at which time, he seems to suggest, their souls reunite with the creative force. Xenophanes’ monotheism was not met with any antagonism from the religious authorities of his time because he couched his claims in poetry and alluded to a single god among others, who could have been interpreted as Zeus. 6. Heraclitus – l. c. 500 BCE Heraclitus: His younger contemporary, Heraclitus, rejected this view and replaced “God” with “Change”. He is best known for the phrase Panta Rhei (“everything changes” or “life is flux”) and the adage that “one can never step into the same river twice” alluding to the fact that everything, always, 29 Baird, F. E. Philosophic Classics: Ancient Philosophy. Routledge, 2010. Page 20 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. is in motion and the water of the river changes moment to moment, as does life.30 Flux and Fire Heraclitus, Earlier philosophers attempted to describe the ultimate constituents of the world around us. Heraclitus (ca. 540-^80 bce), an aristocrat from Ephesus, shifted attention to a new problem, namely; the problem of change.31 His chief idea was that "all things are in flux/' and he expressed this concept of constant change by saying that "you cannot step twice into the same river." The river changes because "fresh waters are ever flowing in upon you.” This concept of flux, Heraclitus thought, must apply not only to rivers but to all things, including the human soul. Rivers and people exhibit the fascinating fact of becoming different and yet remaining the same. We return to the "same" river although fresh waters have flowed into it, and the adult is still the same person as the child. Things change and thereby take on many different forms; nevertheless, they contain something that continues to be the same throughout all the flux of change.32 There must be, Heraclitus argued, some basic unity between these many forms and the single continuing element, between the many and the one. He made his case with such imaginative skill that much of what he had to say found an important place in the later philosophies of Plato and the Stoics; in more recent centuries he was deeply admired by Hegel and Nietzsche. 30 Mark, Joshua J. "Pre-Socratic Philosophers." Ancient History Encyclopedia. Ancient History Encyclopedia, 15 Oct 2020. Web. 12 Dec 2020. 31 Samuel E. S. & James F., (2012), A History of Philosophy., Op. Cit. Pg 12. 32 Ibid, at pg 12 – 13. Page 21 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Reason as the Universal Law; the process of change is not a haphazard movement but the product of God's universal Reason (logos).33 This idea of Reason came from Heraclitus, religious conviction that the most real thing of all is the soul, and the soul's most distinctive and important attribute is wisdom or thought. But when he speaks about God and the soul, he does not have in mind separate personal entities.34 For him there is only one basic reality; namely, Fire, and it is this material substance, Fire, that Heraclitus calls the One, or God. Inevitably, Heraclitus was a pantheist—a term meaning that God is identical with the totality of things in the universe. For Heraclitus all things are Fire/God. Since Fire/God is in everything, even the human soul is a part of Fire/God. As wisdom is Fire/God's most important attribute, wisdom or thought is human beings' chief activity.35 7. Parmenides – l. c. 485 BCE Parmenides: Parmenides rejected this view of life as change in his Eleatic School of thought which taught Monism, the belief that all of observable reality is of one single substance, uncreated, and indestructible.36 Parmenides believed that the whole universe, all that exists, is timeless and unified. In his view change was impossible. His ideas have some logical basis and have proved influential. Since we can sense that things are changing all Samuel E. S. & James F., (2012), A History of Philosophy., McGraw-Hill Education (Asia) and Beijing World Publishing Company. Pg. 14. 34 Ibid. 35 Ibid. 36 Ibid at pg. 18. 33 Page 22 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. the time, yet logically prove that change is impossible we must find a way to justify this apparent clash of world views.37 8. Zeno (465 B.C.E) Zeno of Elea: Parmenides’ thought was defended and defined by his pupil Zeno of Elea who created a series of logical paradoxes proving that plurality was an illusion of the senses and reality was uniform. There was actually no such thing as change, Zeno showed, only the illusion of change. He proved this through 40 paradoxes of which only a handful have survived. The most famous of these is known as the Race Course, which stipulates that between Point A and Point Z on a course, one must first run halfway. Between Point A and that halfway mark is another halfway mark and between Point A and that other halfway mark is still another and then another. One can never reach Point Z because one cannot, logically, reach that point without first reaching the halfway mark which one cannot reach because of the many “halfway marks” which precede it. Movement, then, is an illusion and so, therefore, is change because, in order for anything to change, it would have to alter the nature of reality – it would have to remove all “halfway marks” – and this is a logical absurdity. Through this paradox, and his many others, Zeno proved, mathematically, that Parmenides’ claims were true. Zeno felt strongly that our senses give us no clue about reality but only about appearances. Accordingly; our senses do not give us reliable knowledge but 37Mark, J. J. (2020, October 15). Pre-Socratic Philosophers. Ancient History Encyclopedia. Retrieved from https://www.ancient.eu/Pre-Socratic_Philosophers. Page 23 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. only opinion. He demonstrates this using the example of a millet seed. If we take a millet seed and drop it to the ground, it will not make a sound. But if we take a half-bushel of millet seeds and let them fall to the ground, there will be a sound. From this difference Zeno concluded that our senses have deceived us: Either there is a sound when the single seed falls or there is not a sound when the many seeds fall. So, to get at the truth of things, it is more reliable to go by way of thought than by way of sensation. 9. Empedocles (484-424 BCE) Empedocles is the source of the Classical idea that the universe is composed of four elements: Earth, Water, Air, and Fire. Believing that is was impossible for anything to come into existence out of nothing, or for existing things to go into nothing, he believed that all change was brought about by the mixing of those four elements. Part of this belief in the continuation of existence was his firm belief in reincarnation.38 The belief in reincarnation probably led to the stories which surround Empedocles’ death. One of the stories tells that Empedocles climbed to the summit of Mount Etna and threw himself to his death in the lava. Either he did this as a way of actually becoming a god, or to fool his followers into believing he had vanished from the Earth. Either way it is said that the volcano spat out one of his bronze sandals, revealing his death.39 38 39 Samuel E. S. & James F., (2012), A History of Philosophy., OpCit. At Pg 19. Ibid. Page 24 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Empedocles sought to reconcile Heraclitus’ insistence on the reality of change with the Eleatic claim that generation and destruction are unthinkable. Going back to the Greeks' traditional belief in the four elements, he found a place for Thales’ water, Anaximenes’ air, and Heraclitus’ fire, and he added earth as the fourth. In addition to these four elements, which Aristotle would later call “material causes”, Empedocles postulated two “efficient causes”: strife and love. (31-32).40 Strife, to Empedocles, differentiated the things of the world and defined them; love brought them together and joined them. The opposing forces of strife and love, then, worked together toward a unity of design and wholeness, which, Empedocles believed, was what the Eleatic school of Parmenides was trying, but failed, to say.41 Empedocles' account of earth, air, fire, and water constitutes only the first part of his theory. The second part is an account of the specific forces that animate the process of change. The Ionians assumed that the stuff of nature simply transformed itself into various objects. Only Anaximenes made any detailed attempt to analyze the process of change with his theory of condensed and expanded air. By contrast, Empedocles assumed that there are in nature two forces, which he called Love and Hate (alternatively; Harmony and Discord).42 These are the forces that cause the four elements to intermingle and later to separate. The force of Love causes elements to Samuel E. S. & James F., (2012), A History of Philosophy., Op Cit. at pg. 20. J. J. (2020, October 15). Pre-Socratic Philosophers. Ancient History Encyclopedia. Retrieved from https://www.ancient.eu/Pre-Socratic_Philosophers. 42 Samuel E. S. & James F., (2012), A History of Philosophy., Op Cit. at pg. 20. 40 41Mark, Page 25 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. attract each other and build up into some particular form or person. The force of Hate causes the decomposition of things. The four elements, then, mix together or separate from each other depending on how much Love or Hate are present. In fact, Empedocles believed, there are cycles within nature that manifest Love and Strife in differing degrees at different times. Expressing this never-ending cycle in his poetic style, Empedocles writes that:“This process is clearly to be seen throughout the mass of mortal limbs: sometimes through love all the limbs which the body has as its lot come together into one, in the prime of flourishing life. At another time again, sundered by evil feuds, they wander severally by the breakers of the shore of life. Likewise, too with shrub plants and fish in their watery dwelling, and beasts with mountain lairs and diver birds that travel on wings.” There are four stages to the cycle. In the first stage, Love is present and Hate is completely absent. Here the four elements are fully commingled and are held in Harmony by the governing principle of Love. In the second stage the force of Hate, lurking nearby; starts to invade things, but there is still more Love present than Hate. In the third stage Hate begins to predominate, and the particles fall into Discord and begin to separate.43 In the final stage only Hate is present, and all particles of earth, air, fire, and water separate into their own four groups. There the elements are ready to begin a new cycle as 43 Samuel E. S. & James F., (2012), A History of Philosophy., Op Cit. at pg. 20. Page 26 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. the force of Love returns to attract the elements into harmonious combinations. This process continues without end. 10. Anaxagoras (l. c. 500 - c. 428 BCE) Anaxagoras: Anaxagoras took this idea of opposites and definition and developed his concept of like-and-not-like and “seeds”. Nothing can come from what it is not like and everything must come from something; this “something” is particles (“seeds”) which constitute the nature of that particular thing. Hair, for example, cannot grow from stone but only from the particles conducive to hair growth. All things proceeded from natural causes, he said, even if those causes are not clear to people. He publicly refuted the concept of the Greek gods and rejected religious explanations, ascribing phenomena to natural causes, and he is the first philosopher to be condemned by a legal body (the court of Athens) for his beliefs.44 According to Anaxagoras, the nature of reality is best understood as consisting of Mind and matter. Before Mind has influenced the shape and behavior of matter, matter exists, as a mixture of various kinds of material substances, all uncreated and imperishable. Even when this original mass of matter is divided into actual objects, each part contains portions of every other elemental "thing" (spermata, or seeds). Snow, for example, contains the opposites of black and white and is called white only because white 44 Mark, J. J. (2020, October 15). Pre-Socratic Philosophers. Ancient History Encyclopedia. Retrieved fromhttps://www.ancient.eu/Pre-Socratic_Philosophers Page 27 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. predominates in it. In a sense, then, each part contains what is in the whole of reality; since each has a special "portion” of everything in it. 11. The Atomists Leucippus and Democritus formulated a theory about the nature of things that bears an astonishing resemblance to some contemporary scientific views. However, it is difficult now to disentangle the contributions each individual made to this atomistic theory.45 Their writings are lost for the most part, but we at least know that Leucippus was the founder of the atomist school and that Democritus supplied much of the detailed elaboration of it. Leucippus was a contemporary of Empedocles (490-430 bce), but we know little else of his life beyond that. Democritus, born in Abdera, Thrace, is reputed to have lived 100 years, from 460 to 360 bce. Through his immense learning and painstaking attempt to state with clarity his abstract theory of atomism, Democritus inevitably over shadowed Leucippus. It is to Leucippus, though, that we must credit the central contention of atomism, namely, that everything is made up of atoms moving in empty space. Atoms and the Void According to Aristotle, the philosophy of atomism originated as an attempt to overcome the logical consequences of the Eleatic denial of space. Parmenides denied that there could be many independent things because everywhere there was being, in which case the total reality would be One. Specifically; he denied the existence of nonbeing or the void (empty space), 45 Samuel E. S. & James F., (2012), A History of Philosophy., Op Cit. at pg. 23. Page 28 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. because to say that there is the void is to say that the void is something. It is impossible, he thought, to say that there is nothing. Leucippus formulated his new theory precisely to reject this treatment of space or the void.46 Leucippus affirmed the reality of space and thereby prepared the way for a coherent theory of motion and change. What had complicated Parmenides, concept of space was his thought that whatever exists must be material, and so space, if it existed, must also be material. Leucippus, on the other hand, thought it possible to affirm that space exists without having to say at the same time that it is material. Thus, he described space as something like a receptacle that could be empty in some places and full in others. As a receptacle, space, or the void, could be the place where objects move, and Leucippus apparently saw no reason for denying this characteristic of space. Without this concept of space, it would have been impossible for Leucippus and Democritus to develop their view that all things consist of atoms.47 SOPHIST PHILOSOPHERS Development of productive forces i.e. means of labour led to the coming of slave mode of production, initially they came with division of labour. Other people cultivating, others were herding cattle.48 Later on there was a division between mental and manual labour, in this development, there was a division of society into classes such as slaves and slave owners. Slave owners had leisure time; slave owners could think others and the society. The Samuel E. S. & James F., (2012), A History of Philosophy., Op Cit. at pg. 23. Ibid. 48 See Sesardic, Neven; De Clercq, Rafael (2014). "Women in Philosophy: Problems with the Discrimination Hypothesis" (PDF). Academic Questions. New York: Springer Science+Business Media. 46 47 Page 29 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. thinking group belongs to the ruling class. Philosophers during this period were from the ruling class.49 These were concerned with human spirit, knowledge and ethics. The main sophists are Protagros, Georgias, Hippias, Thrasymachus and Callicles. Around 5th BC philosophy was separated from religion. Sophists were very instrumental in this change. Before the sophists, there was a linkage of religion and philosophy. Thereafter people wanted to be independent in their own ideas. The sophists were very instrumental in that change. Sophists agreed with natural philosophers that traditional mythological thinking was incorrect.50 1. Protagoras Among the Sophists who came to Athens, Protagoras of Abdera (ca. 490-420 BCE) was the oldest and, in many ways, the moral influential. Theory of knowledge; He is best known for his statement that "man is the measure of all things, of the things that are, that they are, and of the things that are not, that they are not." That is, each individual is the ultimate standard of all judgments that he or she makes. This means that whatever knowledge I might achieve about anything would be limited by my human capacities. Protagoras dismissed any discussion of theology, saying, "About the gods, I am not able to know whether they exist or do not exist, nor what they are like in form; for the 49 See EliudKitime, A Student Manual on Jurisprudence, p 38 See Pierotti,Raymond; Communities as both Ecological and Social entities in Native American thought. 50 Page 30 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. factors preventing knowledge are many: the obscurity of the subject, and the shortness of human life." Knowledge, Protagoras said, is limited to our various perceptions, and these perceptions will differ with each person. If two people observe the same object, their sensations will be different, because each will occupy a different position in relation to it. Similarly; the same breeze blowing on two people might feel cool to one but warm to the other. Whether the breeze is or is not cold cannot be answered in a simple way. It is in fact cold for one person and warm for the other. To say that a person is the measure of all things is, therefore, to say that our knowledge is measured by what we perceive. If something within us makes us perceive things differently; there is then no standard for testing whether one person's perception is right and another person's is wrong. Protagoras thought that the objects we perceive by our various senses must possess all of the properties that different people perceive as belonging to them. For this reason, it is impossible to discover what is the 〃true〃 nature of anything; a thing has as many characteristics as there are people perceiving it. On this concept he said “whatever you feel to be true is true for, whatever I feel to be true is true for me and there is no reason there should be the same.” Thus, there is no way to distinguish between the appearance of a thing and its reality. On this theory of knowledge would be impossible to attain any absolute scientific knowledge since there are built-in differences in observers that lead each of us to see things differently. Protagoras concluded, therefore, that knowledge is relative to each person. Page 31 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Theory of ethic; When he turned to the subject of ethics, Protagoras held that moral judgments are relative. He was willing to admit that the idea of law reflects a general desire in each culture to establish a moral order among all people. But he denied that there was any uniform law of nature pertaining to human behavior that all people everywhere could discover. He distinguished between nature and custom and said that laws and moral rules are based on custom, not on nature. Each society has its own laws and its own moral rules, and there is no way of judging some to be right and others wrong.51 But Protagoras did not carry this moral relativism to the extreme view that every individual can decide what is moral for him- or herself. Instead, he took the conservative position that the state makes the laws, and everyone should accept these laws because they are as good as any that can be made. Other communities might have different laws, and individuals within a state might think of different laws, but in neither case are these better laws; they are only different. In the interest of a peaceful and orderly society, then, people should respect and uphold the customs, laws, and moral rules that their tradition has carefully nurtured. In matters of religion, Protagoras took a similar view: Just because we cannot with certainty know the existence and nature of the gods, this should not prevent us from participating in the worship of the gods. The interesting outcome of Protagoras's relativism was his conservative conclusion that the young should be educated to accept and Samuel E. S. & James Fieser (2012), A History of Philosophy, Published by McGraw-Hill Education （Asia） and Beijing World Publishing Company. Page 29. 51 Page 32 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. support the traditions of their society; not because this tradition is true but because it makes possible a stable society. Still, there is no question that Protagoras's relativism seriously dislodged confidence in the possibility of discovering true knowledge. Indeed, his skepticism drew the heavy criticism of Socrates and Plato.52 Theory on religion; Protagoras distinguish knowledge from religion. According to him it’s impossible to perceive about gods, because gods could not prove by sense. 2. Gorgias: Gorgias (late fifth century BCE) came to Athens from Sicily as ambassador from his native city of Leontini in 427 BCE. He took such a radical view regarding truth that he eventually gave up philosophy and turned instead to the practice and teaching of rhetoric. His extreme view differed from Protagoras's in that, while Protagoras said that everything is true relative to the spectator, Gorgias denied that there is any truth at all. With hair-splitting keenness, and employing the type of reasoning used by the Eleatic philosophers Parmenides and Zeno, Gorgias propounded the extraordinary notions; 52 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op Cit. Page 29. Page 33 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. (1) that nothing exists, (2) that if anything exists it is incomprehensible, and (3) that even if it is comprehensible it cannot be communicated. Taking this third notion, for example, he argued that we communicate with words, but words are only symbols or signs, and no symbol can ever be the same as the thing it symbolizes. For this reason, knowledge can never be communicated. By this type of reasoning, Gorgias thought he could prove all three of his propositions, or at least that his reasoning was as coherent as any used by those who disagreed with him. He was convinced, consequently; that there could be no reliable knowledge, and certainly no truth.53 Gorgias claimed that there is no such thing as “knowledge” and that what passed for “knowledge” was only opinion. Actual knowledge was incomprehensible and incommunicable. Gorgias laid out his claim in detail to show that what people called Being could not really exist because anything that “is” must have a beginning and what people called Being had no known First Cause – only people’s opinions on what might be a First Cause – and therefore Being could not logically exist. What people perceived as “reality” was neither Being nor Not-Being but simply What-is, but what exactly What-is constituted was unknowable and, if one should know it, could not be communicated to others because they would not be able to understand. 53 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op Cit. Page 30. Page 34 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 3. Callicles He put together another theory. He was right of the strong as the basis of natural as control with the conventional law. He was trying to explain the legal phenomenon. In his society there existed slave and slave owners.54 The god of the state was a ‘toteni’ of the particular clan. People who are stronger are the one to decide what is right. The stronger are the ones who make law. He said that man and groups in men to promote their own interests created the law. They are saying justice is that is wielded by the more powerful.55 4. Thrasymachus Thrasymachus lived (late fifth century BCE). He did touch the right of the might. He says justice is nothing else than that which is advantageous to the stronger. Whatever is right to the stronger is what justice. Justice men are always sufferers and they are always than justice men who could get away at the cost of justice men.56 Theory of justice; Thrasymachus (late fifth century BCE) is portrayed as the Sophist who asserted that injustice is to be preferred to the life of justice. He did not look upon injustice as a defect of character. On the contrary; Thrasymachus considered the unjust person as superior in character and intelligence. Indeed, he said that “injustice pays” not only at the meager level of the pick54See 55See Craig, Edward. Philosophy: A Very Short Introduction. Edwards, Paul, ed. (1967). The Encyclopaedia of Philosophy, Macmillan & Free Press 56See Buccellati, Giorgio (1981-01-01). "Wisdom and Not: The Case of Mesopotamia", Journal of the American Oriental Society, 101 (1): 35–47. Page 35 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. pocket (although there is profit in that, too) but especially for those who carry injustice to perfection and make themselves masters of whole cities and nations. Justice, he said, is pursued by simpletons and leads to weakness. Thrasymachus held that people should aggressively pursue their own interests in a virtually unlimited form of self-assertion. He regarded justice as being the interest of the stronger and believed that "might is right." Laws, he said, are made by the ruling party for its own interest. These laws define what is right. In all countries alike, the notion of "right" means the same thing, since "right” is simply the interest of the party established in power. So, Thrasymachus said, "the sound conclusion is that what is 'right' is the same everywhere: the interest of the stronger party' Here, then, is the reduction of morality to power. This is an inevitable consequence of the Sophists skepticism, which led them to a relativistic attitude toward truth and ethics. It was Socrates' chief concern to unravel the logical inconsistencies of the Sophists, to rebuild some notion of truth, and to establish some firm foundation for moral judgments. ANTI-SOPHIST PHILOSOPHY This is philosophy which was going against the sophist ideas. It opposed the doctrine of justice. There were various philosophers who were in this group of philosophy. These were Socrates, Plato and Aristotle. The pioneer for antisophist was Socrates. Plato was student of Socrates who developed and modified and contradicted ideas of his teacher. Aristotle was the student of Plato who developed and modified ideas of Plato. Page 36 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1. Socrates Seldom has there been a time and place so rich in genius as the Athens into which Socrates was born in 470 BCE. Socrates wrote nothing. Most of what we know about him has been preserved by three of his famous younger contemporaries—Aristophanes, Xenophon, and, most importantly; Plato. From these sources Socrates emerges as an intense genius who, along with extraordinary intellectual rigoi; possessed a personal warmth and a fondness for humor. He was a robust man with great powers of physical endurance. In his playful comedy The Clouds, Aristophanes depicts Socrates as a strutting waterfowl, poking fun at his habit of rolling his eyes and referring impishly to his "pupils" and “thinking shop.”57 Socrates as a philosopher; Because Socrates left no writings of his own, there is today some disagreement over what philosophical ideas can be properly attributed to him. Our most extensive sources of his thought are the Dialogues of Plato, in which he is the leading character.58 But the persistent question is whether Plato is here reporting what Socrates actually taught or is expressing his own ideas through the figure of Socrates. Some argue that the Socrates found in Plato's dialogues is the historically correct Socrates. This would mean that Socrates must get all the credit for the novel philosophical activity these dialogues contain. On this view Plato would get credit only for the literary 57 58 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op Cit. at Pg. 30. Ibid. Page 37 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. form he devised for preserving, elaborating on, and lending precision and color to Socrates' thought.59 On the other hand, Aristotle distinguished between the philosophical contributions made by Socrates and Plato. Aristotle gave Socrates credit for "inductive arguments and universal definitions," and to Plato he ascribed the development of the famous theory of Forms—the notion that universal archetypes exist independently of the particular things that embody them. In essence, the argument is over whether Socrates or Plato developed the theory of Forms. Since Aristotle was himself particularly interested in this subject and had discussed it at length with Plato in the Academy, it seems reasonable to suppose that his distinction between Socrates and Plato's ideas is accurate. At the same time some of the early dialogues appear to represent Socrates' own thought, as in the case of the Apology and the Euthyphro. The most plausible solution to the problem, therefore, is to accept portions of both views. Knowledge is Virtue Knowledge is Virtue- what does it mean? The English word ‘virtue’ is one translation of the Greek ‘arete’, but it may be appropriate only to cases where the particular “Excellence” or “arete’ is excellence in ethics (or, Knowledge of how we should live our life).60 Why Knowledge is Virtue? According to Socrates, virtue is knowledge, because:61 (1) all living things aim for their perceived good; and therefore (2) if anyone does not know what Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 32. https://www.roangelo.net/logwitt/logwith61.html retrieved in February 24, 2021. 61 Ibid. 59 60 Page 38 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. is good, he cannot do what is good -- because he will always aim for a mistaken target; but (3) if someone knows what is good, he will do what is good, because he will aim for what is good. That is the argument presented by Xenophon in his Memories of Socrates (Memorabilia iii, 9, 5). What Aristotle calls "the correct definition of the good" is that argument's assumed premises (1 above); cf. Plato, Republic 505d-e. Yet Socrates' view of moral virtue is contrary to the consensus of mankind, according to Aristotle. And, indeed, if Socrates is correct, then why don't people who say they know what they should do (namely, what is good) not do what they say they know they should do? Is it not true that all vice is the result of ignorance, and all (moral) virtue is the result of knowledge?62 Two kinds of virtue Note that physical strength and courage are both virtues or goods, but of the two only courage is a moral virtue or good whereas physical strength is a natural or non-moral virtue. Note that Socrates does not say that strength is knowledge, but he does say that courage is knowledge.63 Man has uniquely human natural virtues such as reason and creativity, as he also has, uniquely among animals, moral virtues such as piety (correct 62 63 Ibid. Ibid. Page 39 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. conduct towards God), justness (correct conduct towards man), modesty (self-knowledge), self-discipline (self-control, temperance), courage.64 [It was Socrates who revised the Greek concept areté ("excellence") to include moral virtue, Socrates who made the study of ethics part of philosophy (Diog. L. i, 14, 18). Philosophy's three parts, according to the Stoics.] The Socratic Method at its best; Proponents of the Socratic method extol its capacity to teach sophisticated legal reasoning effectively to a large class of students.65 According to the late Professor Philip Areeda, the strength of the method is that the risk of being questioned induces all students in a large classroom to participate vicariously in an exploration of the strengths and limits of legal arguments. Students learn legal analysis by doing it, either in their own minds or in an oral exchange with the professor. By posing questions to students that force them to confront the weaknesses of each position, the Socratic professor ultimately trains students to assess the strength of legal arguments on their own: -66 “The student sees that he could have asked himself those questions before class; that the kinds of questions the instructor asked can be self-posed after class. The internalization of that questioning process is not an illusion. It is the essence of legal reasoning and the prize of the [Socratic method].” 64 https://www.roangelo.net/logwitt/logwith61.html retrieved in February 24, 2021. John O. Cole, The Socratic Method in Legal Education: Moral Discourse and Accommodation, 35 MERCER L. Rav. 867, 869-73 (1984). 66 Ibid. 65 Page 40 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. With the Socratic reasoning process internalized, students become experts at critiquing their own prejudgments, leading to open-minded, bifocal, and sophisticated understandings of law.67 According to the Socratic method's proponents, the collateral benefits of this dynamic and interactive classroom technique are considerable. Class discussions become lively and stimulating, encouraging students to prepare for class and engage in exciting and illuminating debates. At the same time, students speak frequently, helping them develop and hone rhetorical skills that are critical to effective advocacy.68 Finally, some have argued that the way that the method forces students to construct their own view of law (rather than discover a preexisting body) aids in the development of moral imagination. According to this view, students who learn the law via Socratic dialogue are likely to appreciate the social construction of law, and thus feel a strong moral responsibility for making sure that the law is used wisely.69 The Socratic Method at its Worst (ending of Socrates method); Critics of the Socratic method levy a diverse set of attacks against it. These attacks criticize the method for three perceived faults:70 (i) the psychologically harmful effect it has on students; John O. Cole, The Socratic Method in Legal Education: Moral Discourse and Accommodation, 35 MERCER L. Rav. 867, 869-73 (1984). 68 Ibid. 69 Ibid. 70 See Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN. L. REv. 1547, 1557 (1993). 67 Page 41 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. (ii) the method's inability to teach the range of skills that lawyers need; and, (iii) the political and ideological agenda that the method's use tends to advance. The most common complaint against the Socratic method is that it is cruel and psychologically abusive. Socratic professors are quick to criticize imperfect student answers, subjecting students to public degradation, humiliation, ridicule, and dehumanization. This torture often scars students for life. Even among students who do not speak in class, the possibility that they will be called on can be incapacitating. Non-traditional students such as women and minorities are particularly vulnerable, both because they are likely to be used as spokes persons for their race or gender, and because many have already internalized stereotypes of inadequacy in the combative and mostly white and male atmosphere of traditional law schools.71 Socrates' Moral Thought; For Socrates knowledge and virtue were the same thing. If virtue has to do with “making the soul as good as possible” it is first necessary to know what makes the soul good. Therefore, goodness and knowledge are closely related. But Socrates said more about morality than simply this. He in fact identified goodness and knowledge, saying that to know the good is to do the good, that knowledge is virtue. By identifying knowledge and virtue, Socrates meant also to say that vice, or evil, is the absence of knowledge. Just See Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN. L. REv. 1547, 1557 (1993). 71 Page 42 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. as knowledge is virtue, so, too, vice is ignorance. The outcome of this line of reasoning was Socrates' conviction that no one ever indulged in vice or committed an evil act knowingly. Wrongdoing, he said, is always involuntary, being the product of ignorance. To equate virtue with knowledge and vice with ignorance may seem to contriadic our most elementary human experiences. Common sense tells us that we frequently indulge in acts that we know to be wrong, so that wrongdoing for us is a deliberate and voluntary act. Socrates would have readily agreed we commit acts that can be called evil. He denied, however, that people deliberately performed evil acts because they knew them to be evil. When people commit evil acts, said Socrates, they always do them thinking that they are good in some way. 2. Plato (427—347B.C.) Plato was born in Athens in 428/27 BCE, one year after the death of Pericles and when Socrates was about 42 years old. Athenian culture was flourishing, and as Plato's family was one of the most distinguished in Athens, his early training included the rich ingredients of that culture in the arts, politics, and philosophy. His father traced his Renege to the old kings of Athens and before them to the god Poseidon.72 72 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 41. Page 43 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Theory of Knowledge; The foundation of Plato's philosophy is his account of knowledge. The Sophists, we have seen, had skeptical views regarding our ability to acquire knowledge.73 Human knowledge, they believed, was grounded in social customs and the perceptions of individual people. Such "knowledge" fluctuated from one culture or person to another. Plato, though, staunchly rejected this view. He was convinced that there are unchanging and universal truths, which human reason is capable of grasping. In his dialogue, The Republic, he picturesquely makes his case with the Allegory of the Cave and the Metaphor of the Divided Line.74 Allegory of the Cave Meaning What is the Allegory of the Cave? Plato’s "Allegory of the Cave” is a concept devised by the philosopher to ruminate on the nature of belief versus knowledge. The allegory states that there exist prisoners chained together in a cave. Behind the prisoners is a fire, and between the fire and the prisoners are people carrying puppets or other objects. This casts a shadow on the other side of the wall. The prisoners watch these shadows, believing them to be real. Plato posits that one prisoner could become free. He finally sees the fire and realizes the shadows are fake. This prisoner could escape from the cave and 73 74 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 41. Ibid. Page 44 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. discover there is a whole new world outside that they were previously unaware of. This prisoner would believe the outside world is so much more real than that in the cave. He would try to return to free the other prisoners. Upon his return, he is blinded because his eyes are not accustomed to actual sunlight. The chained prisoners would see this blindness and believe they will be harmed if they try to leave the cave. Plato’s Allegory of the Cave Examples in Film • The Truman Show • The Matrix • Dark City • Cube • The Conformist The Allegory of the Cave’ by Plato: Summary and Meaning The ‘Allegory of the Cave’ is a theory put forward by Plato, concerning human perception. Plato claimed that knowledge gained through the senses is no more than opinion and that, in order to have real knowledge, we must gain it through philosophical reasoning. ‘The Allegory of the Cave’ by Plato Page 45 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. In the Allegory of the Cave, Plato distinguishes between people who mistake sensory knowledge for the truth and people who really do see the truth. It goes like this: The Cave • Imagine a cave, in which there are three prisoners. The prisoners are tied to some rocks, their arms and legs are bound and their head is tied so that they cannot look at anything but the stonewall in front of them. • These prisoners have been here since birth and have never seen outside of the cave. • Behind the prisoners is a fire, and between them is a raised walkway. • People outside the cave walk along this walkway carrying things on their head including; animals, plants, wood and stone. The Shadows • So, imagine that you are one of the prisoners. You cannot look at anything behind or to the side of you – you must look at the wall in front of you. • When people walk along the walkway, you can see shadows of the objects they are carrying cast on to the wall. • If you had never seen the real objects ever before, you would believe that the shadows of objects were ‘real. Page 46 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. The Game • Plato suggests that the prisoners would begin a ‘game’ of guessing which shadow would appear next. • If one of the prisoners were to correctly guess, the others would praise him as clever and say that he was a master of nature. The Escape • One of the prisoners then escapes from their bindings and leaves the cave. • He is shocked at the world he discovers outside the cave and does not believe it can be real. • As he becomes used to his new surroundings, he realizes that his former view of reality was wrong. • He begins to understand his new world, and sees that the Sun is the source of life and goes on an intellectual journey where he discovers beauty and meaning • He sees that his former life and the guessing game they played are useless. The Return • The prisoner returns to the cave, to inform the other prisoners of his findings. Page 47 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. • They do not believe him and threaten to kill him if he tries to set them free. The Allegory of the Cave’ by Plato – The Meaning The Allegory of the cave by Plato should not be taken at face value. In essays and exams, whoever is marking it expects you to have a deeper understanding of the meaning of the theory. You can then use these to think about criticisms and then to form your own opinion. The Cave • In Plato’s theory, the cave represents people who believe that knowledge comes from what we see and hear in the world – empirical evidence. The cave shows that believers of empirical knowledge are trapped in a ‘cave’ of misunderstanding. The Shadows • The Shadows represent the perceptions of those who believe empirical evidence ensures knowledge. If you believe that what you see should be taken as truth, then you are merely seeing a shadow of the truth. In Plato’s opinion you are a ‘pleb’ if you believe this (their insult for those who are not Philosophers)! The Game • The Game represents how people believe that one person can be a ‘master’ when they have knowledge of the empirical world. Plato is Page 48 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. demonstrating that this master does not actually know any truth, and suggesting that it is ridiculous to admire someone like this. The Escape • The escaped prisoner represents the Philosopher, who seeks knowledge outside of the cave and outside of the senses. • The Sun represents philosophical truth and knowledge • His intellectual journey represents a philosopher’s journey when finding truth and wisdom. The Return • The other prisoner’s reaction to the escapee returning represents that people are scared of knowing philosophical truths and do not trust philosophers. Theory of the Forms; Plato's theory of the Forms is his most significant philosophical contribution. In a nutshell the Forms are those changeless, eternal, and nonmaterial essences or patterns of which the actual visible objects we see are only poor copies. There is the Form of the Triangle, and all the triangles we see are mere copies of that Form. There are at least five questions that we might ask about the Forms. And although they cannot be answered with precision, the Page 49 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. replies to them that are found in his various dialogues will provide us with Plato's general theory of the Forms.75 What Are the Forms? We have already suggested Plato's answer to this question by saying that Forms are eternal patterns of which the objects we see are only copies. A beautiful person is a copy of Beauty. We can say about a person that she is beautiful because we know the Form of Beauty and recognize that this person shares more or less in this Form. In his Symposium Plato states that we normally grasp beauty first of all in a particular object or person. But having discovered beauty in this limited form, we soon "perceive that the beauty of one form is akin to another," and so we move from the beauty of a particular body to the recognition that beauty in every form is one and the same."76 The effect of this discovery that all types of beauty have some similarity is to loosen our attachment to the beautiful object and to move from the beautiful physical object to the concept of Beauty. When a person discovers this general quality of Beauty, Plato says, "he will decrease his violent love of the one, which he will... consider a small thing and will become a lover of all beautiful forms. In the next stage he will consider that the beauty of the mind is more honorable than the beauty of outward form." Then, drawing to wards and contemplating the vast sea of beauty, he will create many fair and noble thoughts and notions in boundless love of wisdom; until on that shore he grows strong, and at last the vision is revealed to him of a single science, which is the science of beauty everywhere." That 75 76 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 50. Ibid. Page 50 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. is, beautiful things in their multiplicity point toward a Beauty from which everything else derives its Beauty. But this Beauty is not merely a concept: Beauty has objective reality. Beauty is a Form. Things become beautiful, but Beauty always is. Accordingly, Beauty has a separate existence from those changing things that move in and out of Beauty.77 What Is the Relation of Forms to Things? A Form can be related to a thing in three ways (which may actually just be three ways of saying the same thing).78 (i) The Form is the cause of the essence of a thing. (ii) A thing may be said to participate in a Form. And, (iii) A thing may be said to imitate or copy a Form. In each case Plato implies that although the Form is separate from the thing— that the Form of Humanness is different from Socrates still every concrete or actual thing in some way owes its existence to a Form. It in some degree participates in the perfect model of the class of which it is a member and in some measure is an imitation or copy of the Form.79 What Is the Relation of Forms to Each Other? Plato says that we can have discourse only through the weaving together of Forms." Thinking and discussion proceed for the most part on a level above particular thing. We speak in terms of the essences or universals that things Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 50-51. Ibid. 79 Ibid.. 77 78 Page 51 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. illustrate; thus, we speak of queens, dogs, and carpenters. These are definitions of things and as such are universals or Forms. To be sure, we also refer to specific things in our experiences, such as dark and beautiful and person, but our language reveals our practice of connecting Forms with Forms. There is the Form Animal, and within that there are also subclasses of Forms, such as Human and Horse. Forms are, therefore, related to each other as genus and species. In this way Forms tend to interlock even while retaining their own unity. The Form Animal seems to be present also in the Form Horse, so that one Form partakes of the other.80 How Do We Know the Forms? Plato mentions at least three different ways in which our minds discover the Forms.81 (i) There is recollection. Before our souls were united with our bodies, our souls were acquainted with the Forms. People now recollect what their souls knew in their prior state of existence, and visible things remind them of the essences previously known. Education is actually a process of reminiscence. (ii) People arrive at the knowledge of Forms through the activity of dialectic, which is the power of abstracting the essence of things and discovering the relations of all divisions of knowledge to each other. And, 80 81 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 52. Ibid. Page 52 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. (iii) There is the power of desire, or Love (eros), which leads people step by step, as Plato described in the Symposium, from the beautiful object, to the beautiful thought, and then to the very essence of Beauty itself. Plato’s Moral Philosophy There is a natural progression from Plato's theory of Forms to his ethical theory. If we can be deceived by appearances in the natural physical world, we can be equally deceived by appearances in the moral realm. There is a special kind of knowledge that helps us to distinguish between shadows, reflections, and real objects in the visible world. This is also the kind of knowledge that we need to discriminate between the shadows and reflections of the genuinely good life.82 Plato believed that there could be no science of physics if our knowledge were limited to visible things. Similarly, there could be no knowledge of a universal Form of Good if we were limited to the experiences we have of particular cultures. The well-known skepticism of the Sophists illustrated to both Socrates and Plato this connection between knowledge and morality. Believing that all knowledge is relative, the Sophists denied that people discover any stable and universal moral standards. The Sophists' skepticism led them to some in- evitable conclusions regarding morality.83 82 83 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page. 54 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 54. Page 53 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. First, they held that moral rules are fashioned deliberately by each community and have relevance and authority only for the people in that place. Second, the Sophists believed that moral rules are unnatural and that people obey them only because of the pressure of public opinion. If their acts could be done in private, they argued, even the "good" among us would not follow the rules of morality. Third, they argued that the essence of justice is power, or that "might is right." Fourth, in answer to the basic question “What is the good life?” the Sophists felt that it is the life of pleasure. Against this formidable teaching of the Sophists, Plato put forward the Socratic notion that "knowledge is virtue." Elaborating on Socrates' view of morality, Plato emphasized (1) the concept of the soul and (2) the concept of virtue as function.84 The concept of the soul; In the Republic Plato describes the soul as having three parts, which he calls reason, spirit, and appetite. He based this three-part conception of the soul on the common experience of internal confusion and conflict that all humans share. When he analyzed the nature of this conflict, he discovered that there are three different kinds of activity going on in a person. 84 Ibid. at. Page 55 Page 54 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. First, there is an awareness of a goal or a value; this is the act of reason. Second, there is the drive toward action the spirit which is neutral at first but responds to the direction of reason. Last, there is the desire for the things of the body, the appetites. What made Plato ascribe these activities to the soul was his assumption that the soul is the principle of life and movement. The body by itself is inanimate, and, therefore, when it acts or moves, it must be moved by the principle of life, the soul. Our reason could suggest a goal for behavior only to be overcome by sensual appetite, and the power of the spirit could be pulled in either direction by these sensual desires.85 Virtue as Fulfillment of Function; Throughout his discussions of morality, Plato viewed the good life as the life of inner harmony, well-being, and happiness. He frequently compared the good life to the efficient functioning of things. A knife is good, he said, when it cuts efficiently, that is, when 让 fulfills its function. We say of physicians that they are good when they fulfill the function of doctoring. Musicians are similarly good when they fulfill the function of their art. Plato then asks, Has the soul a function that can be performed by nothing else?" Living, said Plato, is likewise an art, and the soul's unique function is the art of living. Comparing the art of music with the art of living, Plato saw a close parallel, for in both cases the art consists of recognizing and obeying the requirements 85 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page. 56 Page 55 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. of limit and measure. When musicians tune their instruments, they know that each string should be tightened just so much, no more and no less, for each string has its specific pitch. The musicians' art consists, therefore, in acknowledging the limit beyond which a string should not be tightened and, in playing their instruments, observing the "measure" between intervals.86 Plato’s Political Philosophy; In Plato's thought political theory is closely connected with moral philosophy. In the Republic he says that different classes of the state are like different parts of an individual's soul. Likewise, the different types of states, with their characteristic virtues and vices, are analogous to different types of people, with their virtues and vices. In both cases we should analyze the health of the state or person in terms of whether the classes or parts are performing their functions well and have the proper relationships to one another. Indeed, Plato held that the state is like a giant person. As justice is the general virtue of the moral person, so also it is justice that characterizes the good society. In the Republic Plato argues that the best way to understand the just person is to analyze the nature of the state. We should begin “he says,” by inquiring what justice means in a state. Then we can go on to look for its counterpart on a smaller scale in the individual. The State as a Giant Person; For Plato, the state grows out of the nature of the individual, so that the individual comes logically prior to the state. The state is a natural institution 86 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 57. Page 56 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. natural because it reflects the structure of human nature. The origin of the state reflects people's economic needs, for, Plato says, “a state comes into existence because no individual is self-sufficing; we all have many needs.” Our many needs require many skills, and no one possesses all the skills needed to produce food, shelter, and clothing, as well as the various arts. Therefore, there must be a division of labor, for “more things will be produced and the work more easily and better done, when every person is set free from all other occupations to do, at the right time, the one thing for which he is naturally fitted.” The relation between the individual and the state; The three classes in the state are an extension of the three parts of the soul. The crafts people or artisans represent as a class the lowest part of the soul, namely, the appetites. The guardians embody the spirited element of the soul.87 And the highest class, the rulers, represents the rational element. So far, this analysis seems quite plausible, since it does not strain our imagination to see the connection (1) between the individual as appetites and the class of workers who satisfy these appetites, (2) between the spirited element in people and the large-scale version of this dynamic force in the military establishment, and (3) between the rational element and the unique function of leadership in the ruler. But Plato was aware that it would not be easy to convince people to accept this system of classes in the state, 87 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 58. Page 57 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. particularly if they found themselves in a class that might not be the one they would choose if they had the chance.88 In state Plato categorized it into four parts; - monarchical – by king. - oligarchy – by few. - democracy – by many. Democracy is a further degeneration, Plato said, for its principles of equality and freedom reflect the degenerate human characters whose whole range of appetites are all pursued with equal freedom. To be sure, Plato's concept of democracy; and his criticism of it, were based on his firsthand experience with the special form that democracy took in the city-state of Athens.89 Here democracy was direct in that all citizens had the right to participate in the government. The Athenian Assembly consisted, theoretically at least, of all citizens over 18 years of age. Thus, Plato did not have in mind modem liberal and representative democracy. What he saw in his day was rather a type of direct popular government that clearly violated his notion that the rulership of a state should be in the hands of those with the special talent and training for it.90 Also, Plato emphasized that; Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 58-59. Ibid. 90 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page. Page 63 88 89 Page 58 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. - Laws are needed. - No private properties. - The society exist by right of nature. Plato’s View of the Cosmos; (original of the world/universal) Although Plato's most consistent and sustained thought centered around moral and political philosophy, he also turned his attention to science. His theory of nature, or physics, is found chiefly in the Timaeus—a dialogue that, according to some scholars, Plato wrote when he was about 70 years old. Plato had not deliberately postponed this subject, nor had he chosen to deal with moral matters instead of promoting the advancement of science. On the contrary, the science of his day had reached a blind alley; and there seemed to be no fruitful direction to take in this field. Earlier, according to Plato, Socrates had had a prodigious desire to know that department of philosophy which is called the investigation of nature; to know the causes of things." However; Socrates was disillusioned by the conflicting answers and theories put forward by Anaximander; Anaximenes, Leucippus and Democritus, and others. Plato shared this disappointment. Moreover, as his own philosophy took shape, some of his theories about reality cast doubt on the possibility of a strictly accurate scientific knowledge. Physics, he thought, could never be more than "a likely story." It was particularly his theory of the Forms that rendered science as an exact type of knowledge impossible. The real world, he said, is the world of Forms, whereas the visible world is full of change and imperfection. Yet, it is about the visible Page 59 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. world of things that science seeks to build its theories. How can we formulate accurate, reliable, and permanent knowledge about a subject matter that is itself imperfect and full of change? At the same time, though, Plato clearly felt that his theory of the Forms—as well as his notions of morality; evil, and truth— required a view of the cosmos in which all these elements of his thought could be brought together in a coherent way. Recognizing, then, that his account of the material world was only "a likely story” or at best probable knowledge, he nevertheless was convinced that what he had to say about the world was as accurate as the subject matter would allow.91 Plato's first thought about the world was that, though it is full of change and imperfection, it nevertheless exhibits order and purpose. He rejected the explanation given by Democritus, who had argued that all things came into being through the accidental collision of atoms. When Plato considered, for example, the orbits of the planets, he observed that they were arranged according to a precise series of geometrical intervals, which, when appropriately calculated, produced the basis for the harmonic scale. Plato made much of Pythagorean mathematics in describing the world. However; instead of saying, as the Pythagoreans did, that things are numbers, he said that things participate in numbers and that they are capable of a mathematical explanation. This mathematical characteristic of things suggested to Plato that behind things there must be thought and purpose, and not merely chance and subsequent mechanism. The cosmos must Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 65. 91 Page 60 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. therefore be the work of intelligence, since it is the mind that orders all things. Humanity and the world bear a likeness to each other, for both contain first an intelligible and eternal element, and second a sensible and perishable element. This dualism is expressed in people by the union of soul and body. Similarly, the world is a soul in which things as we know them are arranged.92 Although Plato said that mind orders everything, he did not develop a theory of creation. Theories of creation typically hold, that things are created out of nothing. But Plato's explanation of the origin of the visible world bypasses this notion of creation. Granted, Plato does say that "that which becomes must necessarily become through the agency of some cause." However, this agent, which he calls the divine Craftsman or Demiurge, does not bring new things into being but rather confronts and orders what already exists in chaotic form. We have, then, a picture of the Craftsman with the material on which he will work. Thus, in explaining the generation of things as we know them in the visible world, Plato assumes the existence of all the ingredients of things, namely, that out of which things are made, the Demiurge who is the Craftsman, and the Forms or patterns after which things are made. Plato departed from the materialists who thought that all things came from some original kind of matter, whether in the form of earth, air, fire, or water. Plato did not accept the notion that matter was the basic reality. Matter itself, 92 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page. 66 Page 61 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Plato said, must be explained in more refined terms as the composition not of some finer forms of matter but of something other than matter. What we call matter, whether in the form of earth or water, reflects a Form, and these Forms are expressed through a medium.93 Things are generated out of what Plato calls the receptacle, which he considered the "nurse of all becoming." The receptacle is a "matrix," or a medium that has no structure but that is capable of receiving the imposition of structure by the Demiurge. Another word Plato uses for the receptacle is space, which, he says, "is everlasting, not admitting destruction; providing a situation for all things that come into being, but itself grasped without the senses by a sort of illegitimate reasoning, and hardly an object of belief.” There is no explanation of the origin of the receptacle, for in Plato's thought it is underived, as are the Forms and the Demiurge. The receptacle is where things appear and perish. 3. Aristotle (384–322 B.C.) Aristotle was born in 384 BCE in the small town of Stagira on the northeast coast of Thrace. When he was 17 years old, Aristotle went to Athens to enroll in Plato's Academy, where he spent the next twenty years as a pupil and a member of Plato. At the Academy Aristotle had the reputation of being the "reader" and “the mind of the school.”94 Aristotle in Formal Logic; Aristotle invented formal logic. He also came up with the idea of the separate sciences. For him there was a close connection between logic and science, 93 94 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 66. Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 68. Page 62 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. inasmuch as he considered logic to be the instrument (organon) with which to formulate language properly when analyzing what a science involves. Aristotle was a founder of formal logic (deductive reasoning).95 The Syllogism; Aristotle develops a system of logic, based on the syllogism, which he defines as a "'discourse in which certain things being stated, something other than what is stated follows of necessity from their being so." The classic example of a syllogism is this: Major premise: All humans are mortal. Minor premise: Socrates is a human. Conclusion: Therefore, Socrates is mortal. The first two statements are premises, which serve as evidence for the third statement, which is the conclusion. How, then, can we be sure that a conclusion follows from its premises? The answer rests in the basic structure of valid syllogistic arguments, and Aristotle devised a set of rules that determine when conclusions are rightly inferred from their premises. Matter and Form; Although Aristotle distinguished between matter and form, he nevertheless said that, in nature, we never find matter without form or form without matter. Everything that exists is some concrete individual thing, arid 95 Ibid. Page 63 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. everything is a unity of matter and form.96 Substance, therefore, is always a composite of form and matter. Plato, you will recall, argued that Forms, such as Human or Table, have a separate existence. Particular things, such as the table in front of me, obtain their nature by participating in the Forms, such as the Form Tableness. Aristotle rejected Plato's explanation of the universal Forms specifically; the contention that the Forms existed separately from individual things. Of course, Aristotle did agree that there are universals and that universals such as Human and Table are more than merely subjective notions. Indeed, Aristotle recognized that without the theory of universals, there could be no scientific knowledge, for then there would be no way of saying something about all members of a particular class.97 Aristotle in Politics; In his Politics, as in his Ethics, Aristotle stresses the element of purpose. Just like human beings, the state is naturally endowed with a distinctive function. Combining these two ideas, Aristotle says, "It is evident that the State is a creature of nature, and that human beings are by nature political animals.” Human nature and the state are so closely related that “he who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god." Not only does human nature incline us to live in a state, but the state, like every other community, "is established with a view to some good" and exists for some end. The family exists primarily to preserve life. The state comes into existence in the first instance to preserve 96 97 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 76. Ibid. Page 64 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. life for families and villages, which in the long run cannot survive on their own. But beyond this economic end, the function of the state is to ensure the supreme good of people, namely, our moral and intellectual life.98 Unlike Plato, Aristotle did not create a blueprint for an ideal state. Even though Aristotle viewed the state as the agency for enabling people to achieve their ultimate goals as human beings, he nevertheless realized that any theory of the state must take note of several practical issues. For example, we must determine "what kind of government is adapted to particular states."99 Types of state Aristotle was willing to recognize that, under appropriate circumstances, a community can organize itself into at least three different kinds of government. The basic difference among them is primarily the number of rulers each has. A government can have as its rulers one, a few, or many. But each of these forms of government can have a true or a perverted form. When a government is functioning rightly, it governs for the common good of all the people. A government is perverted when its rulers govern for their own private gain or interests. The true forms of each type of government, according to Aristotle, are monarchy (one), aristocracy (few), and polity (many). The perverted forms are tyranny (one), oligarchy (few), and democracy (many). His own preference was aristocracy; chiefly because there are not enough people of 98 99 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page. 87 ibid Page 65 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. exceptional excellence, in spite of our best efforts. In an aristocracy there is the rule of a group of people whose degree of excellence, achievement, and ownership of property makes them responsible, able, and capable of command.100 Differences and Inequalities; Because he relied so heavily upon anecdotal observation of things, it was inevitable that Aristotle would make some mistakes. Nowhere is this truer than with his view of slavery. Observing that slaves invariably were strong and large, he concluded that slavery was a product of nature.101 “It is clear” Aristotle said, "that some men are by nature free, and others slaves, and that for these slaveries is both expedient and right." To be sure, Aristotle took great care to distinguish between those who became slaves by nature, a type of slavery that he accepted, and those who became slaves by military conquest, a type he rejected. Aristotle rejected slavery by conquest on the highly defensible grounds that to overpower people does not mean that we are superior to them in nature. Moreover, the use of force may or may not be justified, in which case enslavement could very well be the product and extension of an unjust act. At the same time, speaking of the “proper treatment of slaves” he proposed that is advantageous that liberty should be always held out to them as the reward of their services." The fact is that in 100 101 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 86. ibid Page 87 Page 66 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. his own last will and testament Aristotle provided for the emancipation of some of his slaves.102 Aristotle also believed in the inequality of citizenship. He held that the basic qualification for citizenship was a person's ability to share in ruling and being ruled in turn. A citizen had the right and the obligation to participate in the administration of justice. Since citizens would therefore have to sit in the assembly and in the law courts, they would have to have both ample time and an appropriate temperament and character. For this reason, Aristotle did not believe that laborers should be citizens, as they had neither the time nor the appropriate mental development, nor could they benefit from the experience of sharing in the political process. CLASSICAL PHILOSOPHY AFTER ARISTOTLE After Aristotle completed his great speculative system, philosophy moved in a new direction. Four groups of philosophers helped to shape this new direction, namely; the Epicureans, the Stoics, the Skeptics, and the Neoplatonists.103 They were, of course, greatly influenced by their predecessors. But in considering course content of Law 320 - Jurisprudence & Legal Theory I (Mzumbe University) hence only three school of thoughts will be discussed hereunder; 102 103 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 89. Ibid. Page 67 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 1. EPICUREANISM SCHOOL OF THOUGHT; Epicurus was born about five or six years after Plato's death, when Aristotle was 42 years old. Bom in 342 or 341 BCE on the island of Samos in the Aegean Sea, he was exposed in his teens to the writings of Democritus, whose ideas about nature had a permanent influence on his own philosophy. God and Death; With this explanation of the origin of human beings and for that matter of all beings including "divine beings"—Epicurus thought that he had liberated people from the fear of God and of death. They no longer had to fear God because God did not control nature or human destiny and was, therefore, unable to intrude into people's lives. As for death, Epicurus said that this need not bother anyone, because only a living person has sensation either of pain or of pleasure. After death there is no sensation, since the atoms that make up bodies and minds come apart. Thus, there is no longer this particular body or mind but only a number of distinct atoms that return, as it were, to the primeval inventory of matter to continue the cycle of new formations. Only matter exists, and in human life all each individual knows is this body and this present moment of experience.104 The Pleasure Principle; Epicurus portrayed the origin of all things in a mechanical way and placed humans into the scheme of things as just another small mechanism whose Samuel E. S. & James Fieser (2012), A History of Philosophy, Published by McGraw-Hill Education （Asia） and Beijing World Publishing Company. Page 95. 104 Page 68 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. nature leads us to seek pleasure. Nevertheless, Epicurus reserved for humans both the power and the duty to regulate the traffic of our desires. Even though Epicurus had liberated people from the fear of God's providence, he had no intention, thereby, of opening the floodgates of passion and indulgence. He was certain that pleasure was the standard of goodness, but he was equally certain that not every kind of pleasure had the same value. If asked how he knew that pleasure was the standard of goodness, Epicurus would answer simply that all people have an immediate feeling of the difference between pleasure and pain and of the desirability of pleasure. He writes, "We recognize pleasure as the first good innate in us, and from pleasure we begin every act of choice and avoidance, and to pleasure we return again." Feeling, Epicurus said, is as immediate a test of goodness or badness as sensation is a test of truth. To our senses pain is always bad and pleasure always good, just as seeing tells us whether something is in front of us or not.105 2. STOIC SCHOOL OF THOUGHT; Stoicism as a school of philosophy includes some of the most distinguished intellectuals of antiquity. Founded by Zeno of Citium (334-262 BCE), who assembled his school on the stoa (Greek for "porch", hence the term Stoic), this philosophical movement attracted Cleanthes (303-233 BCE) and Aristo in Athens. Later it found such advocates in Rome as Cicero (106-43 BCE), Bowker, J., (1999), The Oxford Dictionary of World Religions. Oxford University Press, Incorporated. Page 112 105 Page 69 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Epictetus (60-117 CE) Seneca (ca. 4 bce-65 BC), and Emperor Marcus Aurelius (121-180 CE).106 Wisdom and Control versus Pleasure In their moral philosophy the Stoics aimed at happiness, but unlike the Epicureans they did not expect to find it in pleasure. Instead, the Stoics sought happiness through wisdom, a wisdom by which to control what lay within human ability and to accept with dignified resignation what had to be. Zeno was inspired as a youth by the ethical teachings and the life of Socrates, who had faced death with serenity and courage. This example of superb control over the emotions in the face of the supreme threat to one's existence—the threat of death— provided the Stoics with an authentic model after which to pattern their lives. Centuries later the Stoic Epictetus said, "I cannot escape death, but cannot I escape the dread of it?" Developing this same theme in a more general way, he wrote, "Do not demand that events should happen as you wish; but wish them to happen as they do happen, and you will go on well." We cannot control all events, but we can control our attitude toward what happens. It is useless to fear future events, for they will happen in any case. But it is possible by an act of will to control our fear. We should not, therefore, fear events in a real sense we have "nothing to fear but fear itself." 106 Samuel E. S. & James Fieser (2012), A History of Philosophy. Op. Cit. Page 98. Page 70 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. Matter as the Basis of All Reality This materialism provided Stoicism with an ingenious conception of the physical world and human nature. The broad picture the Stoics drew of physical nature followed from their position that all that is real is material. Everything in the universe is, therefore, some form of matter. But the world is not just a pile of inert or passive matter it is a dynamic, changing, structured, and ordered arrangement. Besides inert matter there is force or power, which represents the active shaping and ordering element in nature. This active power or force is not different from matter but is rather a different form of matter. It is a constantly moving, subtle thing, like an air current or breath. The Stoics said it was fire, and this fire spread to all things, providing them with vitality. This material fire had the attribute of rationality, and since this was the highest form of being, the Stoics understood this rational force to be God.107 God in Everything The pivotal idea of Stoicism was the notion that God is in everything.108 When we say that God is in everything—as fire, or force, or rationality—we imply that all of nature is filled with the principle of reason. In a detailed manner the Stoics spoke of the permeability of matter, by which they meant that different types of matter are mixed up together. The material substance of God, they said, was mixed with what would otherwise be motionless matter. Matter behaves the way it does because of the presence in it of the 107 108 Samuel E. S. & James Fieser (2012), A History of Philosophy. Op. Cit. Page 99. Samuel E. S. & James Fieser (2012), A History of Philosophy. Op. Cit. P 99. Page 71 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. principle of reason. Natural law is the continued behavior of matter in accordance with this principle; it is the law or principle of a thing's nature. Thus, for the Stoics, nature has its origin in God—the warm, fiery matrix of all things—and all things immediately receive the impress of God's structuring reason. Because things continue to behave as they were arranged to behave, we can see how the Stoics developed their notions of fate and providence.109 Fate and Providence To the Stoics providence meant that events occur the way they do because all things and people are under the control of the Logos, or God.110 The order of the whole world is based on the unity of all its parts, and what unifies the whole structure of matter is the fiery substance that permeates everything. Nothing "rattles" in the universe, for nothing is loose. Ultimately, the Stoics fashioned their moral philosophy against this background of a totally controlled material universe.111 Ethics and the Human Drama; According to Stoic., “a man is actor in a drama.” one should know his or her role, they said no need to be jealousy. According to Epictetus, moral philosophy rests on a simple insight, wherein each person is an actor in a drama. What Epictetus meant when he used this image was that an actor does not choose a role; on the contrary, it is the Ibid. at Page 100. Ibid. 111 Samuel E. S. & James Fieser (2012), “A History of Philosophy”, Op. Cit. at Page 100. 109 110 Page 72 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. author or director of the drama who selects people to play the various roles. In the drama of the world, it is God, or the principle of reason, who determines what each person will be and how he or she will be situated in history. Human wisdom, said the Stoics, consists in recognizing what our role in this drama is and then performing the part well. Some people have bit parts while others are cast into leading roles. Epictetus explains: "If it is [God's] pleasure that you should act a poor person, see that you act it well; or a handicapped person, or a ruler, or a private citizen. For it is your business to act well the given part." The actor develops a great indifference to those things over which he or she has no control—for example, the shape and form of the scenery, as well as the other players. The actor especially has no control over the story or its plot. But there is one thing that actors can control, and that is their attitudes and emotions.112 Stoic also emphasized that “the wise person is the one who knows and accepts his or her role.” On Cosmopolitanism and Justice; Cosmopolitanism, is the idea that all human beings are, or could or should be, members of a single community. Definitions of cosmopolitanism usually begin with the Greek etymology of “citizen of the world”. However, as Appiah points out, “world” in the original sense meant “cosmos” or “universe”, not earth or globe as current use assumes.113 Samuel E. S. & James Fieser (2012), A History of Philosophy. Op. Cit. at Page 101. Beck, Ulrich (2005); Power in the Global Age. Translated by Cross, Kathleen. Cambridge: Polity Press. ISBN 978-0-7456-320-8. 112 113 Page 73 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. The Stoics also developed a strong notion of cosmopolitanism—the idea that all people are citizens of the same human community. To look at the world process as a drama is to admit that everyone has a role in it. The Stoics viewed human relations as having the greatest significance, for human beings are the bearers of a divine spark. What relates people to each other is the fact that each person shares a common element. It is as though the Logos is a main telephone line and all people are on a conference call, thereby connecting God to all people and all people to each other. Or, as Cicero put, it;114 since reason exists both in people and God, the first common possession of human beings and God is reason. But those who have reason in common must also have right reason in common. And since right reason is Law, we must believe that people have Law also in common with the Gods. Further, those who share Law must also share Justice, and those who share these are to be regarded as members of the same commonwealth. Universal brotherhood and the theory of a universal natural law of justice were among the most impressive contributions made to Western thought by the Stoics. They injected basic themes into the stream of thought that was to have a decisive impact in the centuries to come, particularly in medieval philosophy.115 114 115 Ibid. Samuel E. S. & James Fieser (2012), A History of Philosophy, Op Cit. at Page 102. Page 74 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. 3. SKEPTICS SCHOOL OF THOUGHT; Today we refer to skeptics as those whose basic attitude is that of doubt. But the old Greek word, skeptikoi, from which skeptics is derived, meant something rather different, namely; "seekers" or "inquirers." The Skeptics certainly were doubters too.116 They doubted that Plato and Aristotle had succeeded in discovering the truth about the world, and they had these same doubts about the Epicureans and Stoics. But for all their doubt, they were nevertheless seekers after a method for achieving a tranquil life. Pyrrho of Elis (361-270 BCE) was the founder of a specific school of skepticism that had an especially profound impact on philosophy many centuries later.117 THE END. (ii) Medieval Philosophy era, (iii) The modern Philosophy era, (iv) 19th Century Philosophy era and (v) Contemporary Philosophy era. Above mentioned titles are discussed in another manual called ‘MAJOR THEORIES OF LAW’ – Natural Law Ancient from to Modern Era. Written by. D.B. Mswahela. 116 117 Ibid Page 103. ibid. Page 75 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. BIBLIOGRAPHY • Aristotle & McKeon, R. Complete Works of Aristotle. Princeton University Press, 1994. • Baird, F. E. Philosophic Classics: Ancient Philosophy. Routledge, 2010. • Baldwin, T., ed. (27 November 2003). The Cambridge History of Philosophy 1870– 1945. Cambridge University Press • Bowker, J., (1999), The Oxford Dictionary of World Religions. Oxford University Press, Incorporated. • Buccellati, G., (1981), "Wisdom and Not: The Case of Mesopotamia" Journal of the American Oriental Society 101 (1): 35–47. • Eliud Kitime, A Student Manual on Jurisprudence. • Freeman, K. Ancilla to the Pre-Socratic Philosophers. Harvard University Press, 1983. • Greco, John, ed. (1 October 2011). The Oxford Handbo ok of Skepticism (1st Ed.). Oxford University Press. • James, G. G. M. Stolen Legacy: The Egyptian Origins of Western Philosophy. Echo Point Books & Media, 2016. • Plato & Jowett, B. The Dialogues of Plato. Scribners Publishing, 2000. • Samuel E. S. & James F., (2012), A History of Philosophy., McGraw-Hill Education (Asia) and Beijing World Publishing Company. • Schmitt, C. B., and Skinner, Q., eds. (1988), The Cambridge History of Renaissance Philosophy. Cambridge University Press. • Waterfield, R. Athens: A History from Ancient Ideal to Modern City. Basic Books, 2009. Page 76 of 85 Daudi B. Mswahela, LLB III 2020/21. Jurisprudence Notes - An Introduction to the Philosophy of Law. • Waterfield, R. The First Philosophers: The Presocratics and the Sophists. Oxford University Press, 2009. • Xenophon. The Whole Works of Xenophon. Andesite Press, 2015. DICTIONARY • Bowker, J., (1999), The Oxford Dictionary of World Religions. Oxford University Press, Incorporated. Page 77 of 85 Daudi B. Mswahela, LLB III 2020/21.