15. Dostoevsky’s The Brothers Karamazov

“The reader may be surprised at the inclusion of Dostoevsky in a Reading Plan devoted to philosophy of law and jurisprudence. Dostoevsky is a novelist, not a lawyer. Yet The Brothers Karamazov is a better novel than it would otherwise have been because of its accurate portrayal of legal procedures.” Thus Mortimer J. Adler and Peter Wolff open their guide to Book XII, “A Judicial Error,” of The Brothers Karamazov in Philosophy of Law and Jurisprudence (volume 5 of their Great Ideas Program (Encylopedia Britannica, 1961). I plan to survey Dostoevsky’s life and work when considering The Brothers Karamazov while working through volume 7 of The Great Ideas Program., and so here I’ll just summarize Adler and Wolff’s guide to “A Judicial Error” and pose and comment on the questions which they ask in the last section of their guide.

The Great Ideas Program Guide to the Selection

Adler and Wolff’s guide to “A Judicial Error” consists of four sections:

• Section I outlines enough of the entire novel for us to understand the significance of the trial. For a brief description of the novel, see https://www.penguinrandomhouse.com/books/286344/the-brothers-karamazov-by-fyodor-dostoyevsky/. As indicated above, I’ll look at the novel in a later article in this series.
• Section II presents the evidence that points to Dmitri’s being guilty of murdering his father, shows that Smerdyakov was the actual murderer, and explains why Dmitri was convicted of a crime that he didn’t commit.
• Section III discusses what the novel shows about the Russian judicial system and considers Dostoevsky’s view of it.
• Section IV asks and discusses three questions about it (see below).

Section IV Questions about the Selection

• What are the crucial facts leading to Dmitri’s conviction? Adler and Wolff open their discussion of this question with, “Although it was the weight of the total evidence that presumably persuaded the jury of Dmitri’s guilt, there are two separate pieces of evidence that must have weighed heavily” (page 233). Those two pieces of evidence are the drunken letter that Dmitri wrote to Katarina Ivanovna in which he promises to return 3,000 roubles to her and the door into Fyodor Karamazov’s house being open when his body was discovered although shortly before it was closed.
• Are the procedures of the Karamazov trial noticeably different from those employed in the courts of the United States and Great Britain? Adler and Wolff show that although the differences don’t seem very great, they do exist.
• Is justice served in The Brothers Karamazov? Adler and Wolff open their discussion of this question with, “Obviously not, if we have regard only to a judicial error. But it is entirely probable that Dostoevsky intended to show that justice had been done–although not through the legal machinery” (page 235). They go on to show that in Dostoevsky’s view at least three of the four brothers (Smerdyakov, Ivan, and Dmitri) bear various degrees of guilt and thus justice is served in what happens to them.

14. Hegel’s Philosophy of Right

“Georg Wilhelm Friedrich Hegel was a German philosopher. He is one of the most important figures in German idealism and one of the founding figures of modern Western philosophy” (Wikipedia). Here I’ll look at a short selection from Hegel’s Philosophy of Right, “The Administration of Justice,” guided by Mortimer J. Adler and Peter Wolff’s guide to it in Philosophy of Law and Jurisprudence (volume 5 of their Great Ideas Program (Encylopedia Britannica, 1961). Before looking at the selection, I’ll repeat the sketch of Kant’s life that I gave in an earlier post on a selection from Philosophy of Right (https://opentheism.wordpress.com/2017/07/14/14-hegels-philosophy-of-right/). My look at the selection will consist of a summary of Adler and Wolff’s guide to it and a posing of and commenting on the questions which they ask in the last section of their guide to it.

The Life of Hegel

Georg Wilhelm Friedrich Hegel was born at Stuttgart, Germany, August 27, 1770, the oldest child of a revenue officer. His achievement at the local grammar school and gymnasium was unremarkable. In 1788 he entered the University of Tubingen as a student of theology. He showed little aptitude for theology, his sermons being a failure and his finding more congenial reading in the classics. After leaving the university in 1793, he earned his livelihood as a family tutor, first at Berne (1793-96) and then at Frankfurt (1797-1800). From his years as a tutor came numerous manuscripts, in various stages of completion and of varying importance but all indicative of a great deal of study.

In 1799 Hegel’s father died and a small inheritance offered him a brief period of independence. He wrote to a friend, Schelling, asking him to suggest a suitable town for a brief period of studious withdrawal. Schelling’s answer must have been enthusiastic because Hegel joined him at Jena almost immediately. Here he became a Privadocent at the university. In the winter of 1801-02 his lectures on logic and metaphysics were attended by eleven students. Succeeding series in later years were attended by about thirty students and were devoted to a “system of speculative philosophy,” the history of philosophy, pure mathematics, and other topics. His academic career was brought abruptly to a close by the Napoleonic campaign culminating in the battle of Jena in late 1806. However despite the war his first great work, The Phenomenology of Spirit, appeared in 1807.

At loose ends Hegel edited a newspaper at Bamberg for a time (1807-08) but, finding journalism distasteful, he accepted a position a position as headmaster of the Gymnasium at Nuremberg, where he remained until 1816. In 1811 he married; the marriage was entirely happy and his wife bore him two sons. Two volumes of his Science of Logic were published in 1812 and a third in 1816. Offered professorships at Erlangen, Heidelberg, and Berlin, he accepted the invitation to Heidelberg. However after the publication of his Encyclopedia of the Philosophical Sciences in 1817, the offer of Berlin was renewed and he accepted it.

The thirteen years of Hegel’s professorship at the University of Berlin (1818-31) brought him to the summit of his career and made him the recognized leader of philosophic thought in Germany. Philosophy of Right, the last of the large works published in his lifetime, appeared in 1821. His lectures on aesthetics, the philosophy of religion, the philosophy of history, and the history of philosophy were constantly revised and improved and finally published after his death. In 1830 he became rector of the university and was decorated by Frederick William III of Prussia. He died of cholera on the 14th of November, 1831.

The Great Ideas Program Guide to the Selection

Adler and Wolff’s guide to Hegel’s “The Administration Justice” consists of three sections:

• Section I describes the structure of Philosophy of Right and summarizes Hegel’s explanation of how he arrived at its divisions and subdivisions.
• Section II looks at the portion of the text which deals with law, Paragraph 211. Hegel begins by discussing the relationship between right and law. Right is a principle and thus abstract. When it acquires determinate and actual existence, it becomes law. What gives right this actual existence is being thought about. Hegel observes that the essence of lawmaking is not that it expresses a rule of behaviour valid for everyone, but rather that the law be known “in its determinate universality.”
  Important consequences follow from this emphasis on the law as known and knowable. For example, Hegel denies the common claim that customs are the best laws. Insofar as they are merely habitual ways of acting, they are not laws at all and should be replaced as soon as possible by positive laws, Nevertheless Hegel realizes that there has to be a certain amount of arbitrariness in positive law. He also realizes that every legal code is always in need of change and improvement.
  The section also discusses courts, trials, and punishments.
• Section III asks and discusses three questions about it (see below).

Section III Questions about the Selection

• Is wrong-doing a more serious offense in civil society than under pre-societal conditions? Hegel answers this question both affirmatively and negatively. In civil society an injury done to one person is not confined to that person but rather is an injury to the entire society. Therefore from the theoretical point of view crime is a more serious matter in society than out of it. However as a practical matter, crime is not so important. Before there is society and before right has become law, wrongdoing is punished by revenge, which implies another act of revenge, so that this becomes an endless process, unlike legal punishment.
• Is the philosophy of right a historical science? According to Hegel philosophy deals with Ideas and thus no branch of it is an historical science. However if we ask the question not with respect to the philosophy of right bur rather with respect to the science of right or the science of law, Hegel admits that this has a definite historical element. “It is the legal which is the source of our knowledge of what is right, or, more exactly, of our legal rights …. Thus the science of positive law is to that extant an historical science with authority as its guiding principle.” Furthermore, it is part of the science of positive law to study laws historically.
• In Hegel’s view is morality a concern of the law? Each of the three parts of Principle of Right discusses one of the moments of right, as indicated by their titles–ABSTRACT RIGHT, MORALITY, and ETHICAL LIFE. The first moment is right in its purely conceptual form, the second moment is right in its subjective form, and the third moment is the unity of the first and second moments. Law belongs to this third moment and therefore is one of those things which supercedes morality. Adler and Wolff conclude their answer to this question thus: “Thus we see the reason why law is superior to law. Law is objective; it goes far beyond the private and subjective concern of the individual person” (page 219).

13. American State Papers

In an earlier post (https://opentheism.wordpress.com/2017/06/30/14-american-state-papers/), I considered the Declaration of Independence (1776), the Constitution of the United States (1789), and a collection of articles appearing in New York newspapers in 1787-88 urging people to ratify the constitution. In this post I’ll compare the Articles of Confederation, which came in effect in 1781 when the Revolutionary War was still in progress, with the Constitution of the United States, again guided by Mortimer J. Adler and Peter Wolff in The Great Ideas Program (Encyclopedia Britannica). Adler and Wolff conclude their guide to the Articles of Confederation and the Constitution of the United States with this comment, “We must admire the wisdom of the Founding Fathers; the Constitution which they devised in1787 for an agricultural country of less than 4,000,000 inhabitants still serves an industrial nation of 180,000,000 people” (The Great Ideas Program, volume 5, 1961, page 192).

The Articles of Confederation and The Constitution of the United States can be accesssed at:
https://www.archives.gov/milestone-documents/articles-of-confederation
https://www.archives.gov/milestone-documents/constitution

Adler and Wolff’s guide contains four sections.

• Section I illustrates how in the Articles of Confederation each of the states remains fully sovereign and grants to the United States only certain rights which it may withdraw while the Constitution of the United States a government which derives its sovereignty directly from the people with the states being unable to take back the rights which the people have given the United States.
• Section II demonstrates that the Constitution of the United States is concerned with natural law, natural rights, and the justice of laws. Its preamble lists the establishment of justice, and although natural law and natural rights aren’t mentioned in it they are referred in the Declaration of Independence and the Constitution contains provisions to implement them. Section I then considers how the government set up by the Constitution derives its just power from the consent of the governed.
• Section III lists what United States is empowered to do by the Articles of Confederation and by The Constitution of the United States. It concludes by observing, “Whereas the Congress set up by the Articles of Confederation could do almost nothing, the Congress set up by the Constitution is authorized to deal with nearly everything that bears on ‘general welfare’” (page 200). It also contrasts the powers of the President under each and the judicial power of each.
• Section IV asks and discusses two questions suggested by the differences between the Articles of Confederation and the Constitution of the United States (see below).

Questions Asked in Section IV:

• Is the power to lay and collect taxes the most important power of a legislative body? The question is prompted by the fact that the first power of Congress specifically mentioned in the Constitution. Adler and Wolff argue that although “if we consider the matter abstractly, the power of taxation seems relatively unimportant … matters do not turn out this way in practice. The power of taxation is crucial” (page 201) They illustrate this and then ask several follow-up questions.
• In the United States there are two kinds of government and two sets of laws that operate in simultaneous and parallel fashion. Is this a good arrangement?” The question refers to Americans being subject to the state that they live in and to the nation. Adler and Wolff describe how this double system came into existence and ask numerous questions about it. Those questions could also be asked about the national and provincial system in Canada.

12. Kant’s The Science of Right

“In the popular view of the German national character, some of its outstanding traits are orderliness, adherence to routine, and perseverance…. Both in his personal life and in his writings, [Immanuel] Kant displayed the characteristics mentioned above…. Each of his works approaches its subject in a systematic manner; each book is carefully divided into parts, chapters, sections, subsections, paragraphs, and so forth. The Science of Right presents a good example of the structuring of a Kantian thesis.” (Mortimer J. Adler and Peter Wolff, Philosophy of Law and Jurisprudence, volume 5 of The Great Ideas Program, Encyclopedia Britannica, 1961, pages 174-175).
In an earlier post (https://opentheism.wordpress.com/2017/06/23/12-kants-the-science-of-right/) I considered the introduction and the Second Part of The Science of Right. Here I’ll repeat the sketch of Kant’s life that I gave in my earlier post, outline the First Part of The Science of Right, give a brief summary of Mortimer J. Adler and Peter Wolff’s guide to it in Philosophy of Law and Jurisprudence, and pose and give their answers to the questions that they ask about it in the last section of their guide..

The Life of Kant

Immanuel Kant was born at Königsberg in East Prussia on April 22, 1724. In his eighth year he entered the Latin school which his parents’ Pietist Lutheran pastor directed and where he acquired a love for the Latin classics. In 1740 he enrolled in the University of Königsberg as a theological student. He was principally attracted to mathematics and physics and decided to pursue an academic career. However in 1746 he had to withdraw for financial reasons and take a position as a family tutor.

In 1755, aided by a relative, Kant was able to complete his degree at the university and assume the role of a lecturer. At first he restricted himself to mathematics and physics and in that and the next year he published several scientific works. But he soon branched into other subjects, including logic, metaphysics, and moral philosophy. He enjoyed success as a lecturer, his style being humorous and vivid, enlivened by many examples drawn from his wide reading. During his fifteen years as a lecturer his fame as writer and lecturer steadily increased. Finally in 1760 he obtained the chair of logic and metaphysics. In later years he served six times as dean of the philosophical faculty and twice as rector.

Kant’s inaugural dissertation as professor, On the Form and Principles of the Sensible and Intelligible World, indicated the direction of his philosophical interests. But it was not until 1781 that his Critique of Pure Reason appeared. Fundamental Principles of the Metaphysics came out in 1785, Critique of Practical Reason in 1788, and Critique of Judgment in 1790. The “critical philosophy” was soon being taught in every important German speaking university, and young men flocked to Königsberg as a shrine of philosophy. Kant came to be consulted as an oracle on all kinds of questions, including the lawfulness of vaccination.

As early as 1789 Kant’s health began to decline seriously and in 1797, after a career of forty-two years, he delivered his last lecture and retired from the university. “After a gradual decline that was painful to his friends as well as to himself, Kant died in Königsberg, February 12, 1804. His last words were ‘Es ist gut’ (It is good’). His tomb in the cathedral was inscribed with the words (in German) ‘The starry heavens above me and the moral law within me,’ the two things that he declared in the conclusion of the second Critique ‘fill the mind with new and increasing admiration and awe, the oftener and more steadily we reflect on.’” (“Kant, Immanuel,” Encyclopedia Britannica, 1974, volume 10, page 393)

Outline of First Part, Private Right, of The Science of Right

Chapter I. Of the Mode of Having Anything External as One’s Own

1. The Meaning of “Mine” in Right
2. Juridical Postulate of the Practical Reason
3. Possession and Ownership
4. Exposition of the Conception of the External Mine and Thine
5. Definition of the Conception of the External Mine and Thine
6. Deduction of the Conception of a Purely Juridical Possession of an External Object
7. Application of the Principle of the Possibility of an External Mine and Thine to Objects of Experience
8. To Have Anything External as One’s Own is Only Possible in a Juridical or Civil State of Society under the Regulation of a Public Legislative Power
9. There May, However, Be an External Mine and Thine Found as a Fact in the State of Nature, but it is only Provisory
   Chapter II. The Mode of Acquiring Anything External
10. The General Principle of External Acquisition
    –Division of the Subject of the Acquisition of the External Mine and Thine–
    Section I. Principles of Real Right
11. What is a Real Right?
12. The First Acquisition of a Thing can only be that of the Soil
13. The First Part of the Soil may be Originally Acquired; and the Principle of the Possibility of such Acquisition is the Original Community of the Soil Generally
14. The Juridical Act of this Original Acquisition is Occupancy
15. It is Only within a Civil Constitution that Anything can be Acquired Peremptorily, whereas in the State of Nature Acquisition can only be Provisory
16. Exposition of the Conception of a Primary Acquisition of the Soil
17. Deduction of the Conception of the Original Primary Acquisition
    Section II. Principles of Personal Right
18. Nature and Acquisition of Personal Right
19. Acquisition by Contract
20. What is Acquired by Contract?
21. Acceptance and Delivery
    Section III. Principles of Personal Right that is Real in Kind
22. Nature of a Personal Right of a Real Kind
23. What is Acquired in a Household
    –The Rights of the Family as a Domestic Society–
    Title I. Conjugal Right. (Husband and Wife)
24. The Natural Basis of Marriage
25. The Rational Right of Marriage
26. Monogamy and Equality in Marriage
27. Fulfilment of the Contract of Marriage
    Title II. Parental Right. (Parent and Child)
28. The Relation of Parent and Child
29. The Rights of the Parent
    Title III. Household Right. (Master and Servant)
30. Relation and Right of the Master of a Household
    –Systematic Division of all the Rights Capable of Being Acquired by Contract–
31. Division of Contracts. Juridical Conceptions of Money and a Book
    –Episodical Section. The Ideal Acquisition of External Objects of the Will–
32. The Nature and Modes of Ideal Acquisition
    33.-I. Acquisition by Usucapion
    34.-II. Acquisition by Inheritance
    35-III. The Continuing Right of a Good Name after Death
    Chapter III. Acquisition Conditioned by the Sentence of a Public Judicatory
33. How and What Acquisition is Subjectively Conditioned by the Principle of a Public Court
34. -I. The Contract of Donation
    38.-II. The Contract of Loan
    39.-III. The Revindication of what has been Lost
    40.-IV. Acquisition of Security by the Taking of an Oath
35. Public Justice as Related to the Natural and the Civil State
36. The Postulate of Public Right

The Great Ideas Program Guide to the First Part of The Science of Right

Adler and Wolff’s guide to the First Part of The Science of Right contains five sections.

• Section I contrasts Kant’s and Montesquieu’s works on law and describes the two parts of The Science of Right. Montesquieu is concerned with whatever affects laws and makes them different in different places and times. Kant wants to discover the underlying principles of law and to grasp what is common about all laws. The first part of The Science of Right, “Private Right,” is about those rights and laws which are valid even in the state of nature. It second part, “Public Right,” is about those laws which are valid only in the civil state.
• Section II summarizes Chapter I of The Science of Right.
• Section III summarizes Chapter II of The Science of Right.
• Section IV summarizes the episodical section and Chapter III of The Science of Right.
• Section V poses and discusses three questions about The Science of Right (see below).

Section V Questions about The Science of Right

• Is there such a thing as purely rational or noumenal possession? To empirically or phenomenally possess a thing is to have or hold it in a physical way that can be perceived by the senses. To rationally possess a thing, such as a house I own even though I am miles from it, is to possess it by right without actually holding it in a physical way. Kant calls such ownership “juridical possession” and investigates how it is possible. Adler and Wolff conclude their discussion thus: “‘Rational’ or ‘noumenal’ possession may therefore be summed up as the recognition that possession means more than the physical holding of an object. It means the ability, guaranteed by the state, to dispose of something that it mine according to my will, whether or not I am physically able to do so.”
  -Does Kant have a theory of natural law? Adler and Wolff observe that Kant appears to have a theory of natural right, not a theory of natural law. The entire The Science of Right deals with the former, namely, the rational principles of acquired, external right. Adler and Wolff then consider whether Kant uses the two terms interchangeably and if he doesn’t how they are related.
• How can a person be possessed by another person? When I acquire a personal right, I acquire the right to have a person perform a certain act.

11 Rousseau’s A Discourse On Political Economy

Jean Jacques Rousseau’s name is connected with the French Revolution of 1789, his work reflecting the thinking about government, law, sovereignty, and similar topics current in the period immediately preceding the outbreak of the Revolution. In an earlier post (https://opentheism.wordpress.com/2017/06/17/11-rousseaus-the-social-contract/) I considered the first two of the four books in his The Social Contract, and in this post I’ll consider his A Discourse on Political Economy and Book II of The Social Contract, following Mortimer J. Adler and Peter Wolff’s guide to them in Philosophy of Law and Jurisprudence (volume 5 of The Great Ideas Program, Encyclopedia Britannica, 1961). However first I’ll repeat the sketch of Rousseau’s life that I gave in my earlier post.

Rousseau’s Life

Jean Jacques Rousseau was born in Geneva on June 28, 1712. His mother’s dying a few days after his birth, he was raised by his father. At the age of twelve or thirteen he was placed as an apprentice to a notary and, when that proved unsuccessful, to an engraver. The latter treated him roughly and in 1728 Rousseau abandoned him and, aided by a Madame de Warens, went to Turin and stayed for nine days at the Hospice of the Holy Spirit, where he received instruction in and converted to the Catholic faith. After serving a few months as a lackey, he returned to Madame de Warens, who took him into her house. During the nine or ten years that he was with her, he made several efforts to fit himself for an occupation, including studying the priesthood with the priests of St. Lazare and taking music lessons from the choir-master of the cathedral. The only systematic studying he did in those years was at a rural retreat where, prompted by Voltaire’s Philosophical Letters, he undertook to make a survey of all the sciences.

In 1741 Rousseau went to Paris, where he obtained the post of secretary to the French Ambassador at Venice. Returning to Paris in 1745, he copied music for a living, cultivated the society of the literary circles, became a contributor on music to Denis Diderot’s Encyclopédie, and began living with Thérèse le Vasseur, a servant girl at his hotel (they had five children, all of whom were sent to a foundling home, and were finally married in 1768). In 1749 he entered the contest held by the Academy of Dijon for the best essay on “Has the progress of the arts and sciences contributed more to the corruption or purification of morals?” His essay attacking civilization as corrupting the goodness of nature won the prize and immediate literary fame for him. He continued writing. In 1756 he moved to the Hermitage, a small country house near Montmorency belonging to a friend, Madame d’Épinay. However in 1758, becoming involved in a quarrel between Diderot and the lover of Madame d’Épinay, he left the Hermitage and settled in Montlouis, a house near Montmorency belonging to another friend, where he wrote The Social Contract, which was published in 1762.

Unfortunately Rousseau’s views on politics and religion incurred the enmity of the French authorities. Learning that he’d be arrested if he didn’t go into exile, he went into exile–first in Neuchâtel, which then belonged to Prussia; then to the territory of Berne; and finally on the invitation of the philosopher David Hume in England. In 1767, quarrelling with Hume and having learned that he wouldn’t be arrested if he returned to France, he returned there. After wandering about for some time, he settled in Paris in 1770, resumed his former occupation of music-copying, and completed some autobiographical works. In May, 1778, he accepted the offer of a cottage at Ermenonville, where he died about six weeks later, on July 2.

The Great Ideas Program Guide to the Readings from Rousseau

Adler and Wolff’s guide to the readings from Rousseau contains four sections.

• Section I compares and contrasts Rousseau and Montesquieu, the subject of my last post, and lists Rousseau’s major writings.
• Section II introduces The Social Contract by investigating Rousseau’s theory of sovereignty. It begins by observing that he tells us that by the social compact a public person is formed which “is called by its members State when passive, Sovereign when active, and Power when compared with others like itself.” The sovereign’s being the state insofar as it is active, sovereignty is the activity of the state. This activity is “nothing less than the exercise of the general will,” the exercise of which results in law.
  Rousseau gives two descriptions of law–“a convention between the body and each of its members” and “[a decree] between two aspects of the entire object, without there being any division of the whole.” Rousseau draws several conclusions from the latter definition of law. “On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our will”
  Adler and Wolff go on to examine the properties of law and of the lawmaking power or the general will. They spend some time showing how Rousseau argues that men are free even though they are subjects of a state. His basic argument is that because the general will is infallible and so can’t be unjust, the laws merely direct us to do that which we would want to do anyway and thus we are free. For a fuller account of his argument, see “The Social Contract” in my earlier post (see the introduction to this post for a link to that post).
• Section III considers Rousseau’s discussion of the aims of legitimate government in A Discourse on Political Economy. He begins by noting the extension of the meaning of “economy” from the government of the family to “the government of that great family, the State,” in which it is usually accompanied by the adjective “political.” A Discourse on Political Economy deals with political government and not primarily with economic matters.
  Rousseau gives three rules which a good government should follow: (1) “to follow in everything the general will;” (2) “[to] bring all the particular wills into conformity with it; in other words, as virtue is nothing more than this conformity of the particular wills with the general will, establish the reign of virtue;” and (3) [to make] provision for the public wants.” Adler and Wolff explain each aim at length.
• Section IV poses and discusses three questions (see below).

Questions in Section IV

• Is Rousseau’s theory of law and liberty totalitarian in character? This quotation from Rousseau indicates what liberties a man had and does not have under law and what liberty is desirable: “What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietor ship of all he possesses.”
• What is the office of the legislator? According to Rousseau, the legislator sets up the civil state and endows it with its constitution or fundamental law. Adler and Wolff consider the problem the legislator has in getting his fundamental law or constitution accepted.
• To what purpose should the laws be directed? Rousseau says that its two main purposes are liberty and equality, “liberty, because all particular dependence means so much force taken from the body of the State and equality, because liberty cannot exist without it.” Adler and Wolff discus what Rousseau means by “liberty” and “equality.”

10 Montesquieu’s The Spirit of Laws

“The Spirit of Laws was published in 1748. It thus belongs to the period of time called the ‘Enlightenment’ and is one of the most influential political treatises of that age. In general, the thinkers of the Enlightenment were interested in reforming and liberalizing government, in religious toleration, and in free expression. Montesquieu is one of the first writers in this tradition.” Thus Mortimer J. Adler and Peter Wolff begin the first section of their guide to part of The Spirit of Laws in 5. Philosophy and Jurisprudence of The Great Ideas Program (Encyclopedia Britannica, 1958, page 143).

Here I’ll sketch Montesquieu’s life, give the titles of the Books of The Spirit of Laws that Adler and Wolff include in their guide, outline Adler and Wolff’s guide, and pose the questions asked by them in the guide and summarize their answers to them

Montesquieu’s Life

Charles Louis de la Brède was born on January 18, 1689, in the château of La Brède, near Bordeaux. Following his education at home, in the village, and at a college of the Oratorians near Paris, he studied in the faculty of law at the University of Bordeaux, graduating and becoming a lawyer in 1708. After his father’s death in 1713, he placed himself under the protection of his uncle, the Baron de Montesquieu. When his uncle died in 1716, he was left his uncle’s name and estates and the office of deputy president in the Parlement of Bordeaux. Financially and socially secure at only 27, he settled down to exercise his judicial function, administer his property, and advance his knowledge of the sciences. In 1721 he surprised almost everyone by publishing Lettres persanes, (Persian Letters, purportedly letters between two Persians travelling in Europe satirizing the follies of French society), which established his reputation as a wit. In 1726 he sold his office and moved to Paris to devote himself to literature, and in 1728 he obtained membership in the French Academy.

Soon after, Montesquieu set out on a tour of Europe to observe men, their customs, and their social and legal institutions, possibly having in mind the writing of The Spirit of Laws. Although on returning to his estate at La Brède he seemed to settle down as a squire, his principal occupation was the preparation of his literary works. He was mainly occupied with an essay on the English constitution (not published until 1748 when it became part of The Spirit of Laws) and with Considérations sur les causes de la grandeur des Romains et de leur décadence (The Considerations on the Causes of the Grandeur and Decadence of the Romans). After publication of the latter in 1734, he rested for a short time and then undertook an extensive program of reading in law, history, economics, geography, and political theory in connection with The Spirit of Laws. Although friends who read the finished manuscript advised against publication, he published it in Geneva in 1748 under the title of De l’esprit des loix. In France it met with an unfriendly reception, but in the rest of Europe, especially England, it received high praise. Montesquieu spent most of his remaining eight years in the country although he still visited Paris, and near the end of 1754 he went to Paris with the intention of closing his house there and retiring permanently to La Brède. However while there he was stricken with a fever and died on February 10, 1755.

This sketch of Montesquieu’s life is from https://opentheism.wordpress.com/2017/06/09/montesquieus-the-spirit-of-laws/.

Titles of the Books of The Spirit of Laws Being Considered

Book I. Of Laws in General
Book XIV. Of Laws in Relation to the Nature of the Climate
Book XV. In What Manner the Laws of Civil Slavery Relate to the Nature of the Climate
Book XVI. How the Laws of Domestic Slavery Bear a Relation to the Nature of the Climate
Book XVII. How the Laws of Political Servitude Bear a Relation to the Nature of the Climate
Book XXIX. Of the Manner of Composing Laws

The complete text of The Spirit of Laws is given at https://oll.libertyfund.org/title/montesquieu-complete-works-vol-1-the-spirit-of-laws.

The Great Ideas Program Guide to the Above Books of The Spirit of Laws

Adler and Wolff’s guide to The Spirit of Laws contains three sections.

• In Section I they quote Montesquieu’s definition of law, “Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied,”and identify the general task that Montesquieu set for himself as: “What is the manner in which law ought to be applied to particular nations in particular circumstances?”
• In Section II they discuss Books XIV-XVII, which deal with the role that climate plays in the laws of countries. In Book XIV Montesquieu claims, “People are … more vigorous in cold climates [and thus] The inhabitants of warm countries are, like old men, timorous; the people in cold countries are, like young man, brave.” After giving some physiological and historical evidence for his claim, he concludes that the laws of a country ought to oppose the direction in which climate tends to influence people. In Books XV-XVII Montesquieu discusses the effect of climate on civil, domestic, and political slavery (see below). Adler and Wolff suggest that Montesquieu may have overstated his case and discuss David Hume’s arguments against it.
• Section III poses and discusses three questions.

Section III Questions

• What are Montesquieu’s views on slavery? In Books XV-XVII Montesquieu discusses civil slavery, which involves a master and a slave who is the master’s property; domestic slavery, which refers to the slavish condition in which women are kept in some countries; and political slavery, in which one people conquers another and forces it into servitude. Montesquieu denounces civil slavery as bad for both the slave and the master, the latter because it morally degrades the master.
• What general purpose should lawmakers keep in mind? Montesquieu answers the question, “I say it, and methinks I have undertaken this work with no other view than to prove it, the spirit of a legislator ought to be that of moderation; political, like moral good, lying always between two extremes.”
• What does Montesquieu think of the subjection of women? Montesquieu devotes Book XVI to the topic, reporting on the laws of marriage, divorce, and government in the family. For the most part, he finds that domestic government tends to imitate political government. Adler and Wolff note that after considering the effect of climate on domestic government Montesquieu makes one of the few value judgments to be found in The Spirit of Laws: “It is a happiness to live in those climates which permit such freedom of converse, where that sex which has most charms seems to embellish society, and where wives, reserving themselves for the pleasures of one, contribute to the pleasure of all.

9. Shakespeare’s The Merchant of Venice

Although Mortimer J. Adler and Peter Wolff say about The Merchant Of Venice, “This is a ‘controversial’ play–so much so that some people contend that it should never be read or presented on that stage” (Philosophy of Law and Jurisprudence in The Great Ideas Program, Encyclopedia Britannica, 1961), it was the play by which I was introduced to Shakespeare (when I was in grade 9).

Here I’ll sketch Shakespeare’s life, summarize briefly the plot of The Merchant of Venice, outline Adler and Wolff’s guide to it in The Great Ideas Program, and pose the questions asked about it by them in the guide and summarize their answers to them.

The Life of William Shakespeare

William Shakespeare was baptized in the parish church of Stratford-on-Avon in England on April 26, 1564, and thus was probably born on April 23. His father, John Shakespeare, was a glove maker and filled various municipal offices in Stratford. He and his wife had at least eight children, William being the third child and oldest son.

Shakespeare obtained his education, mainly of Latin studies, at the local free grammar school.. When he was about thirteen his father’s fortunes took a turn for the worse and William was apprenticed to a local trade. In 1582 he married Anna Hathaway, the daughter of a neighbouring farmer and eight years older than him, They had three children -Susanna in 1583 and twins (Hamnet and Judith) in 1585. Sometime before the birth of the twins, Shakespeare had to leave Stratford, according to tradition because of poaching. His history is unknown from then until his emerging as an actor and rising playwright in London in 1592.

The theatres were closed from 1592 to 1594 because of a plague. After their reopening in 1594 Shakespeare joined a newly formed acting company called the Lord Chamberlain’s Men. In addition to being both actor and playwright, he was also a shareholder in the company, which was so successful that it opened a theatre of its own, the Globe, in 1599. The Lord Chamberlain’s Men were frequently asked to play at court and after James I’s accession in 1603 became known as The King’s Men.

In 1597 Shakespeare purchased one of the largest houses in Stratford, New Place. Here he established his wife and two daughters, his son having died the year before, but he himself continued to work in London until 1610, when he returned to his birthplace and lived as a retired gentleman. In March of 1616 he made his will and a month later, on April 23, died and was buried in the parish church where he had been baptized 52 years earlier.

This sketch of Shakespeare’s life is from https://opentheism.wordpress.com/2017/12/29/shakespeares-hamlet/.

The Merchant of Venice

Antonio, an antisemitic merchant, takes a loan from the Jew Shylock to help his friend to court Portia. Antonio can’t repay the loan, and without mercy, Shylock demands a pound of his flesh. The heiress Portia, now the wife of Antonio’s friend, dresses as a lawyer and saves Antonio.

The above brief summary of The Merchant of Venice is from https://www.shakespeare.org.uk/explore-shakespeare/shakespedia/shakespeares-plays/merchant-venice/.
A fuller summary of it is also given there.

The Great Ideas Program Guide to The Merchant of Venice

Adler and Wolff’s guide to The Merchant of Venice contains four sections. Section I summarizes the plot. Section II examines the problem of usury. Section III considers these questions: Does Shylock deserve his fate? Is he treated justly? Or is he ensnared and trapped so that he cannot extricate himself? Section IV poses two more questions (see below) and discusses them.

Section IV Questions

• Is Aquinas’ theory of usury applicable under modern situation? Aquinas classifies usury, or the charging of interest for money lent, as a sin. In Part II of the guide Adler and Wolff give Aquinas’s explanation of his view. In answering their question in Part IV they distinguish between two uses of money–spending and investing. They argue that Aquinas’s theory applies if the only use of money is spending but that it doesn’t apply if the money is being invested.
• Was Antonio committing a sin by consenting to the bond proposed by Shylock? Adler and Wolff identify two sins which Antonio may have committed: he jeopardized his own life, and he induced Shylock to contemplate murder.

8. Hobbes’s Leviathan

Thomas Hobbes was an English philosopher known for his 1651 book Leviathan, in which he expounds an influential formulation of social contract theory. I commented on both Hobbes and Leviathan in https://opentheism.wordpress.com/2017/05/15/hobbess-leviathan/.

Here I’ll give the titles of the chapters from Leviathan assigned for reading in 5. Philosophy of Law and Jurisdiction of Mortimer J. Adler and Peter Wolff’s The Great Ideas Program, outline Adler and Wolff’s guide to the chapters, and pose the questions asked about it by them in the guide and summarize their answers to them.

Chapters 14-15 and 26-28 of Leviathan

Chapter XIV – Of the First and Second Natural Laws, and of Contract
Chapter XV – Of Other Laws of Nature
Chapter XXVI – Of Civil Laws
Chapter XXVII – Of Crimes, Excuses, and Extenuations
Chapter XXVIII – Of Punishments and Rewards

The Great Ideas Program Guide to the Chapters

Adler and Wolff’s guide to the chapters contains five sections.

• Section I notes that in Chapters 14-15 Hobbes develops a theory of natural law and in Chapters 26-28 he discusses civil law, crimes, and punishment. Then it reminds us how Hobbes views the state as coming into existence, “It results from a mutual agreement or contract by which every man gives up his right to govern himself on the condition that other men do likewise. This right is surrendered to one man or to an assembly of men…called a COMMONWEALTH [or] LEVIATHAN.”
• Section II defines “natural law” as “a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that which by which he thinketh it may be best preserved.” Adler and Wolff contrast its overall purpose of preserving life with the overall purpose of natural law in Aquinas’s theory, the pursuit of good.
• Section III is concerned with the justice of laws. Hobbes says that justice and injustice can exist only in a commonwealth, where the performance of covenants is enforced by the coercive power of the commonwealth.
• Section IV considers human positive law. Hobbes begins with a definition, “Civil law is to every subject those rules which the Commonwealth hath commanded him, by word, writing, or other sufficient sign of the will, to make use of for the distinction of right and wrong; that is to say, of what is contrary and what is not contrary to the rule.” Adler and Wolff contrast Aquinas’s and Hobbes’s definitions.
• Section V poses three more questions (see below) and discusses them

Section V Questions

• What does Hobbes mean by “equity”? Adler and Wolff look at places where Hobbes mentions equity and conclude that they can’t be interpreted consistently. “On the one hand, Hobbes insists that justice does exits until there is a commonwealth. On the other hand, however, he speaks of equity, which is a kind of justice (i.e., distributive justice), in the state of nature, Furthermore, when he says that the legislator should always look to equity and that a civil law must be applied so that equity is served, he seems to be saying that there is a standard, namely, equity, in terms of which laws can be judged. But this goes against his positivistic contention that every law is just and that books of morality have no relevance to natural law.” They then ask, “Can this apparent inconsistency be resolved?”
• What is Hobbes’ theory of punishment? Adler and Wolff conclude that it is utilitarian. They then ask, “What is Hobbes’ reason for subscribing to the utilitarian theory of punishment (i.e., the theory that all punishment must be either for the improvement of the criminal or the deterrence of other possible offenders)?
• Does Hobbes believe in natural slavery? Some writers maintain that the subjects of Hobbes’s commonwealth are little better than slaves. However Hobbes rejects Aristotle’s doctrine of natural slavery.

7. Aquinas’s Summa Theologica

Volume 5 (Philosophy of Law and Jurisprudence) of Mortimer J. Adler and Peter Wolff’s The Great Ideas Program contains two readings from Thomas Aquinas’s “Treatise on Law” in Part I of the Second Part of his Summa Theologica. The first of them was on Questions XC, Of the Essence of the Law, and XCIV, Of the Natural Law. This one is on Questions XCV, Of Human Law; XCVI, Of the Power of Human Law; and XCCVII, Of Change in Laws.

In 6. Aquinas’s Summa Theologica I sketched Aquinas’s life and commented on the Summa Theologica. Here I’ll give the titles of the articles in the reading and pose the questions asked by Adler and Wolff on the reading and summarize their answers to them.

The Articles in the Reading

Question XCV – Of Human Law
Article 1. Whether It was Useful for Laws to Be Framed by Men?
Article 2. Whether Every Human Law Is Derived from the Natural Law?
Article 3. Whether Isidore’s Description of the Quality of Positive Law Is Appropriate?
Article 4. Whether Isodore’s Division of Human Laws Is Appropriate?

Question XCVI – Of the Power of Human Law
Article 1. Whether Human Law Should Be Framed in a General Way Rather than for the Particular Case?
Article 2. Whether It Pertains to Human Law to Repress All Vices?
Article 3. Whether Human Law Prescribes Acts of All the Virtues?
Article 4. Whether Human Law Binds a Man in Conscience?
Article 5. Whether All Are Subject to the Law?
Article 6. Whether He Who Is Under a Law May Act Beside the Letter of the Laws?

Question XCVII – Of Change in Laws
Article 1. Whether Human Law Should Be Changed in Any Way?
Article 2. Whether Human Law Should Always Be Changed Whenever Something Better Occurs?
Article 3. Whether Custom Can Obtain Force of Law?
Article 4. Whether the Rulers of People Can Dispense From Human Laws?

The first section in Adler and Wolff’s guide to the reading is on Question XCV, and the second section in it is on Question XCVII.

Questions asked by Adler and Wolff in the third section of their guide to the reading

• Is everyone subject to human law? “Aquinas answers this question in Article 5 of Question 96. The answer is twofold. The first is rather straightforward. Men are not subject to human laws that do not apply to them; for instance, inhabitants of France are not subject to laws of Great Britain. Furthermore higher authority takes precedence over lower. Inhabitants of the state of California are not subject to the laws passed by the California legislature if those laws conflict with laws passed by the Congress of the United States.
  “The second part of Aquinas’ answer is more interesting. He distinguishes between two ways of obeying a law. A just and virtuous person obeys a law because he realizes that the common good requires it. Such a person is not really coerced…. A wicked person, on the other hand, obeys a law only because he is threatened. He fears the consequence of disobedience…. Such a person is, therefore, subject to the law in the sense that he feels himself subject to the sanctions of the law.” (Adler and Wolff)
  Adler and Wolff ask if we agree with Aquinas’s view here.
• Would it be better to have living judges than inanimate laws? Although Aquinas notes that animate justice is better than inanimate justice, which is contained in laws, he maintains that written laws are superior to the decrees of judges. One reason is that it is difficult to find men wise and impartial enough to serve as judges. A second reason is that if a particular case has to be decided quickly, the passions of those involved may pervert the judgment. And a third reason is that the judge does not have the benefit of being able to consider many similar cases, as the lawmaker can when he makes laws about a certain kind of case.
• Is it ever permissible to act contrary to the law? Adler and Wolff ask, “What if observance of the law would be a disservice to the common good?” and “Does equity [see 3. Aristotle’s Nicomachean Ethics], in correcting the injustice which would follow from a strict application of the law, encourage breaches of the law?”

6. Aquinas’s Summa Theologica

Volume 5 (Philosophy of Law and Jurisprudence) of Mortimer J. Adler and Peter Wolff’s The Great Ideas Program contains two readings from Thomas Aquinas’s “Treatise on Law” in Part I of the Second Part of his Summa Theologica. This reading is on Questions XC, Of the Essence of the Law, and XCIV, Of the Natural Law. The seventh reading is on Questions XCV, Of Human Law; XCVI, Of the Power of Human Law; and XCII, Of Change in Laws.

Here I’ll sketch Aquinas’s life, comment on the Summa Theologica, give the titles of the articles in the reading, and pose the questions asked by Adler and Wolff on the reading and summarize their answers to them. The sketch of Aquinas’s life and comment on Summa Theologica are from https://opentheism.wordpress.com/2018/06/22/6-aquinas-summa-theologica/.

Thomas Aquinas

Thomas was born in 1224/25 near Naples and entered the University of Naples in 1239. In 1244 he joined the Dominicans, who immediately assigned him to study theology in Paris. Opposed to his doing so, his family abducted him on his way to Paris. However finding that nothing could shake his determination, they released him the following year.

Arriving in Paris in 1245, Thomas began studying theology at the Dominican convent under Albertus Magnus, a champion of Aristotle. When Albertus was appointed to organize a Dominican house of studies at Cologne in 1248, he took Thomas with him. After four more years of study, Thomas received his bachelor’s degree in 1252 and returned to Paris to teach and to train to become a master in theology, which he became in 1256.

Although only a little more than thirty-one, Thomas was appointed to fill one of the two chairs allowed the Dominicans at the university. However, in 1259, after three years of theological teaching there, he returned to Italy, where he remained nine years, teaching and writing. Suddenly, in 1268, he was called back to Paris to combat both those who were opposed the use of Aristotle in theology and those who were presenting an Aristotelianism seemingly incompatible with Christianity.

In 1272 Thomas was recalled to Italy to reorganize all the theological courses of his order. He went to Naples, where he taught at the university and continued to write. However his writing career came suddenly to an end on December 6, 1273. While saying mass that morning a great change came over him, after which he stopped writing. Urged to complete Summa Theologica, which he had begun in 1267, he replied: “I can do no more; such things have been revealed to me that all I have written seems as straw, and I now await the end of my life” (quoted in Great Books of the Western World, volume 19, page vi).

The following year Thomas became ill on his way to attend the Council of Lyons, stopped at the Cistercian monastery of Fossanova, and died on March 7, 1274.

Summa Theologica

The Summa Theologica is a systematic exposition of theological knowledge, including knowledge about man and the world as related to God as well as knowledge about God, compiled from all available sources with the purpose of setting forth and defending Christian doctrine. Theological knowledge includes. Its sources include classical Greek (especially Aristotle) and medieval Jewish and Islamic philosophers as well as Christian thinkers.

It consists of three parts (with the Second Part, which our readings come from divided into two parts) divided into treatises. Each treatise is divided into questions, which are divided into articles. The title of each article gives the question in affirmative form. It is followed by a general negative answer, introduced by “We proceed thus to the [number of the article] Article,” and a listing of specific negative points called “Objections.” Then Aquinas summarizes the opposite view, introducing the summary with “On the contrary.” The body of the article, introduced by “I answer that,” gives Aquinas’ judgment on the various views. Finally Aquinas replies to the numbered objections in order. According to Adler and Cain, this form was typical of the day.

The same translation of The Summa Theologica that is in Great Books of the Western World is given at https://www.ccel.org/a/aquinas/summa/home.html.

The Articles in the Reading

Question XC – Of the Essence of the Law.
Article 1. Whether Law Is Something Pertaining to Reason?
Article 2. Whether the Law Is Always Directed to the Common Good?
Article 3. Whether the Reason of Any Man is Able to Make Laws?
Article 4. Whether Promulgation Is Essential to a Law?

Question XCIV – Of the Natural Law
Article 1. Whether the Natural Law Is a Habit?
Article 2. Whether the Natural Law Contains Several Precepts, or One Only?
Article 3. Whether All Acts of Virtue Are Prescribed by the Natural Law?
Article 4. Whether the Natural Law Is the Same in All Men?
Article 5. Whether the Natural Law Can be Changed?
Article 6. Whether the Law of Nature Can Be Abolished from the Heart of Man?

The first section in Adler and Wolff’s guide to the reading is on Question XC, and the second section in it is on Question XCIV.

Questions asked by Adler and Wolff in the third section of their guide to the reading

• Is there a natural law for man? In Question XCI Aquinas undertakes to prove that there is an eternal law and that the natural law is “the rational creature’s participation of the eternal law.”
• Is the natural law really law? Like law in general: (1) natural law is an ordinance of reason; (2) natural law is directed toward the common good; (3) natural law is made by a lawgiver is we consider God as one; and (4) the natural law is promulgated but the mode of promulgation is quite different from that of the positive law, being inscribed on the hearts of men rather than being promulgated verbally.
• In Justinian’s Institutes we read that law is “that which pleases the prince.” Is this a good definition of law? Aquinas makes law a thing of reason and thus maintains that what the sovereign wills must be reasonable if it is to be law. Also Aquinas argues than an unjust law is either no law or a law in name only whereas if law is that which pleases the prince waht would be an unjust law would still be a law if the emperor willed and enforced it. Adler and Wolff ask, “Does justice determine what is lawful, or does the law determine what is just?”