iii. Seneca
Ancient Roman Concepcion of Rights
a major philosophical figure of the Roman Imperial Period. As a Stoic philosopher writing in Latin, Seneca
makes a lasting contribution to Stoicism. He occupies a central place in the literature on Stoicism at the
time, and shapes the understanding of Stoic thought that later generations were to have
Seneca does not write as a philosopher who creates or expounds a philosophical theory from the ground up.
Rather, he writes within the track of an existing system that he is largely in agreement with.
Seneca thinks of himself as the adherent of a philosophical system—Stoicism—and speaks in the first
person plural (‘we’) in order to refer to the Stoics. Rather than call Seneca an orthodox Stoic, however, we
might want to say that he writes within the Stoic system. Seneca emphasizes his independence as a thinker.
He holds Stoic views, but he does not see himself as anyone's disciple or chronicler.
(STOIC ACCOUNT OF THE SOUL) The two most prominent features of the Stoic account of the soul are
these: first, the soul is corporeal; second, the adult human soul is rational (in the sense that all its operations
involve the use of reason) and one (psychological monism). Although Seneca appreciates Platonic imagery
that presents the soul as ‘loftier’ than bodily things, he is fully committed to the Stoic view that the soul is a
body. Discussion of this issue is, to his mind, somewhat academic, and thus not as salutary as the elevating
themes about virtue that he often prefers. But Letter 106 explains why we must think of the soul as a body.
Only bodies act on anything, cause effects; therefore, the soul must be a body.
iv. Epictetus
A Greek philosopher of 1st and early 2nd centuries C.E., and an exponent of Stoic ethics notable for the
consistency and power of his ethical thought and for effective methods of teaching. Epictetus’s chief
concerns are with integrity, self-management, and personal freedom, which he advocates by demanding of
his students a thorough examination of two central ideas, the capacity he terms ‘volition’ (prohairesis) and
the correct use of impressions (chrēsis tōn phantasiōn). Heartfelt and satirical by turns, Epictetus has had
significant influence on the popular moralistic tradition, but he is more than a moralizer; his lucid
resystematization and challenging application of Stoic ethics qualify him as an important philosopher in his
own right.
MAIN CONTENTIONS: Rationality, Kinship with god, Volition, Value, Emotional adjustment,
Appropriate other-concern, Self-cultivation & autonomy, Mind & body
v. Marcus Aurelius
The second century CE Roman emperor Marcus Aurelius was also a Stoic philosopher, and his Meditations,
which he wrote to and for himself, offers readers a unique opportunity to see how an ancient person (indeed
an emperor) might try to live a Stoic life, according to which only virtue is good, only vice is bad, and the
things which we normally busy ourselves with are all indifferent to our happiness (for our lives are not
made good or bad by our having or lacking them). The difficulties Marcus faces putting Stoicism into
practice are philosophical as well as practical, and understanding his efforts increases our philosophical
appreciation of Stoicism
When we select things that are according to nature and reject things that are contrary to nature, our actions
are appropriate and an appropriate action is an action for which there is a reasonable (eulogon) justification.
An appropriate action counts as a morally perfect or virtuous action (katorthôma) when it is done from
understanding, i.e., from the wise and stable cognitive state possessed only by the fully virtuous person
(Arius Didymus 8). Although the talk of the appropriate action having a reasonable justification might
suggest that more than one action could be appropriate for a situation, or that what is appropriate could be
relativized to the ordinary person’s grasp of the situation, so that ‘reasonable justification’ would be like the
law’s ‘reasonable doubt’ or ‘reasonable person’, the Stoics’ use of ‘reasonable’ in other contexts, such as
the definition of the good emotions (eupatheiai) (Diogenes Laertius vii.116), the end (Arius Didymus 6a),
and the virtues of reasoning and rhetoric (SVF iii.264, 268; 291, 294), clearly takes the standard of
reasonableness to be the right reason of the fully virtuous person. This points to there being only one
appropriate action per situation, a conclusion which is confirmed by Chrysippus’ claim that the fully
virtuous person performs all appropriate actions and leaves no appropriate action unperformed.
vi.
Roman liberty was by definition a positive right that was guaranteed (but could also be withdrawn) by the
law. Law-abiding citizens enjoyed the liberty of a Roman citizen and, before the law, all the citizens were
equal. The slave was legally defined as a thing (res) —rather than person (persona) —and was subject to the
mastery of another person.
In the final days of Roman republicanism, Cicero (106–43 B.C.E.) significantly related forms of
government with the idea of liberty. He drew on the Polybian discourse on the change of constitutions and
characterized each form of polity according to the degree of liberty attributed to it. Cicero's notion of liberty
was equality of juridical rights, not equality before the law. He considered that democracy was marked by
the excess of liberty granted to the ruled, and he recommended a just equality proportionate to dignitas
(reputation or merit). (<a href="http://science.jrank.org/pages/9964/Liberty-Ancient-
Conceptions.html">Liberty - Ancient Conceptions</a>)
vii. Jus Civilis Jus Gentiles
the modern name for a collection of fundamental the "law of nations," defined as "the law that
works in jurisprudence natural reason establishes among all mankind and
is followed by all peoples alike."
B. MEDIEVAL LEGAL PHILOSOPHY
The part of medieval philosophy that is concerned with political matters. Philosophical writing about
politics during the middle ages (as during the early modern period) was often an attempt to influence public
events, and the history of the subject therefore involves reference to those events. It also involves reference
to developments in medieval culture, e.g., the renaissances of the ninth and twelfth centuries, and to the
development of institutions such as the legal system and the universities. The strong relationship during this
period between philosophy and religion also complicates the story. These “extra-philosophical” connections
are among the reasons why political philosophy underwent considerable development in the course of the
middle ages, as religious and political thinking was modified by cultural developments and the stress of
events
a. Internalist Legal Thought
Internalist in the first instance is a thesis about the basis of either knowledge or justified belief. This first
form of internalist holds that a person either does or can have a form of access to the basis for knowledge or
justified belief. The key idea is that the person either is or can be aware of this basis
i. Theories of Conscience
regard human beings as capable of knowing in general what ought to be done and applying this knowledge
through conscience to particular decisions about action. The ability to act on the determinations of
conscience is, moreover, tied to the development of the moral virtues, which in turn refines the functions of
conscience
Conscience is divided into two general parts by Bonaventure. The first part seems to be a power for
discovering the truth of very general practical principles like “obey God,” “honor your parents,” and “do not
harm your neighbors.” This part of conscience is innate and unerring; it cannot be lost to any person, no
matter how morally corrupt that person may become. The second part of conscience involves the
application of the very general principles to situations that may be either general or particular. This second
part is also innate, but it can be mistaken since the very general principles of the first part may be
misapplied through ignorance or faulty reasoning. The misapplication explains, to a certain extent, how
conscience, oriented to good, can be involved in the performance of evil actions. The distinction between
the two parts of conscience also opens up the possibility for developing, through experience, practical
principles of behavior not directly entailed by the content of the synderesis. By generalizing on activities
performed in accordance with the principles of the synderesis, one can formulate new general principles not
contained in the synderesis that can guide behavior in a number of contexts. Conscience thus appears to be a
dynamic faculty for Bonaventure. Bonaventure calls synderesis the “spark of conscience,” and he sees it as
resting in the affective part of human beings. It is the spark because, as the general drive to do good,
synderesis provides the movement that conscience needs to operate.
Thomas Aquinas, the principal advocate of the intellectualistic view of the relationship of conscience and
synderesis, explicitly defines ‘conscience’ as the “application of knowledge to activity” (Summa
Theologiae, I-II, I) The knowledge he has in mind here comes from the synderesis, which he regards as the
natural disposition of the human mind by which we apprehend without inquiry the basic principles of
behavior. For Aquinas, then, the conscience applies the first principles of the synderesis to particular
situations.
Scotus thinks that both synderesis and conscience are to be placed in the intellectual order. In agreement
with Bonaventure, Scotus gives conscience much more of a dynamic role in the human personality than a
mechanical application of general principles. Scotus's close linking of conscience and the development of
the virtues allows him to combine the two sources.
Ockham's discussion of conscience, prudence, and the virtues indicates that he follows Scotus's turn
towards discussing conscience in relation to the virtues. He agrees with Scotus that conscience can provide
the entry into the seeming circularity of performing virtuous actions in order to develop intentions that seem
to be required for performing the virtuous actions in the first place. Nevertheless, he criticizes Scotus for
failing to make a number of necessary distinctions about degrees of virtues and the relationship of
conscience to prudence.
ii. Theories of Practical Reason
The notion of medieval practical reason can be investigated in two ways: 1) in light of the distinction
between practical and theoretical sciences in the writings of the medieval university masters in the thirteenth
and fourteenth centuries; 2) in comparison to the modern understanding of practical reason as described by
Immanuel Kant.
When one chooses through one's free will to live ‘honorably and rightly’ in accordance with divine law, one
can reasonably be thought to live a moral life. Despite the human ability to reason according to divine
principles, the human condition does not permit the attainment of moral perfection through natural means
alone.
Thomas (THOMISTIC DOCTRINE) argues from the basic principle that what is a good always has the
nature of the end to the conclusion that human beings seek to discover particular good acts as consequences
of the determined end. Since practical reason mimics the deductive process of theoretical reasoning, the
term, ‘ratio practica’, primarily refers to a type of human knowledge. There is, however, a fundamental
difference between the conclusions of theoretical and practical science:
Franciscan theologians, John Duns Scotus and William of Ockham, were especially critical of a theory
which they considered too restrictive of human freedom. Although Scotus and Ockham never produced
treatises specifically devoted to moral theory, the main lines of their critiques may be sketched from their
theological works.. Impressed by Scotus' dictum, ‘Deus nullius est debitor’ (God is indebted to no one),
Ockham extends the power of God to reformulate all moral laws. Not only can the commandments that
regulate human interactions be altered, but also those that determine the relationship between God and man.
God could command human beings to hate him and such a precept must be considered as morally binding.
Ockham's use of the more common language of medieval moral theory does not prevent him from
emphasizing the contingency of human morality.
Comparison with Kant
b. Legal Philosophy in Religious Perspectives
i. Jewish
The "works of the law" had established the Jewish believers in a mold of Torah-observance but the mold,
the "wineskin", was inflexible, and gave no room for the fluidity of the Spirit of the Law (Luke 5:33-39).
Many of the Jewish believers were very zealous for the traditions of the fathers, the precepts of which were
what Paul refers to as the "works of the law" (Galatians 1:14), which we could interpret as saying, "the
operation of the Law", or the way the law works when you put it into practice.
1. Maimonides
Moses ben Maimon is the greatest Jewish philosopher of the medieval period and is still widely read today.
For a traditional theist like Aquinas, he is right to say that there are issues, e.g. creation, that cannot be
resolved by demonstration and to insist that all attempts to anthropomorphize God are misguided. The
problem is that in rejecting anthropomorphism, he may have gone too far. If God bears no likeness to the
created order, and if terms like wise, powerful, or lives are completely ambiguous when applied to God and
us, the conception of divinity we are left with is too thin for the average worshipper to appreciate.
For a naturalist like Spinoza, Maimonides is too willing to dismiss science and take refuge in traditional
concepts like creation and divine volition. Granted that medieval astronomy did not have a good
explanation of planetary motion; with the advent of the scientific revolution, it found one – at least in
Spinoza’s opinion. If Maimonides were to remain true to his word and accept the strongest argument
wherever it leads, as far as Spinoza’s is concerned, he would have to embrace the new science, the eternity
of the world, and the necessity of every event that takes place in it. In order to do this, he would have to
abandon the idea that the Bible is a source of philosophic and scientific truth and look to it only for the light
it sheds on how to live. Needless to say, this would be a disaster for Maimonides.
Even if Maimonides were to make this move and read the Bible for its ethical content, problems would
remain. Maimonides is an elitist. Closeness to God is measured by how much knowledge one acquires. The
result is that people whose situations prevent them from pursuing advanced studies cannot be close to God
or love God. Whether it is right or wrong, this view offends modern sensibilities, which are much more
democratic.
Finally for an atheist, Maimonides’ philosophy shows us what happens if you remove all anthropomorphic
content from your conception of God: you remove all content of any kind. In the end, you are left with a
God whose essence is unknowable and indescribable.
a. Rational Purpose Theory
used to model human decision making, especially in the context of microeconomics, where it helps
economists better understand the behaviour of a society in terms of individual actions as explained through
rationality, in which choices are consistent because they are made according to personal preference.
Rational choice theory increasingly is applied to other areas as well, including evolutionary theory, political
science, and warfare.
ii. Christian
1. St. Paul on Christianity & the Law
a. Paul’s Conception on the Locus of the State
2. Legal Philosophy of St. Augustine of Hippo
a. Ethics & Free Will
b. Law & Order
i. Temporal Law & Eternal Law
ii. Justifiable Legislation
c. Contemporary Roman Law & Augustine
d. The State as Product of Human Sinfulness & the Notion of the Ideal Society