Frans Jacobs

Antiquity and the Middle Ages

Chapter 2 traces the developments in philosophy from the pre-Socratic thinkers to the end of the Middle Ages, that is, from ca. 600 BC to ca. 1500 AD. It presents the philosophies of the pre-Socratics, the Sophists, Plato, Aristotle, the Stoa, Thomas Aquinas, William of Ockham and Marsilius of Padua. In doing so, it sets out the worldview of the classical period and the Middle Ages, which presupposed a coherent unity and purpose in the universe. In the Greek-Roman period and in the Middle Ages people took for granted that behind the phenomenal world within which man leads his everyday life, a higher spiritual order is concealed. This spiritual world gives unity and meaning to empirical reality. Since the empirical world is viewed as an imperfect materialisation of the spiritual world, the latter serves as the standard by which to perfect the former. According to this idealistic worldview, the good is thus objectively present in (the higher sphere of) nature. This implies a broad, perfectionist concept of ethics, which commands man to align himself fully with an ideal of perfection. (Natural) Law, in this view, serves to enforce compliance with this perfectionist morality, and thus to ensure that man lives in accordance with his essential nature. Such a perfectionist ethics does not make provision for any individual freedom to arrange one’s life according to one’s own convictions. How one must live as man is after all objectively determined in nature, and is not left to individual choice. In this conception there is, therefore, no place for liberal freedom rights. The chapter furthermore shows the development towards the end of the Middle Ages which prepared the ground for the Modern Age, characterised by increasing fragmentation, individualisation and relativisation.

Twentieth Century: 1900–1945

In Chapter 8, philosophical developments in the first half of the 20th century are discussed, more specifically psychoanalysis, logical positivism, critical rationalism, and hermeneutics. This period was inter alia marked by the growth of applied science, two world wars and an economic depression. The chapter discusses in detail Freud’s psychoanalysis. With this method, access can be gained to the human unconscious, a feature of the mind which led Freud to the conclusion that the modernist belief in the foundational nature of human consciousness is an illusion. Consciousness is only a derived effect of the more primary unconscious where the sexual and aggressive drives play a dominant role. In logical positivism the optimistic belief in progress which characterised Enlightenment philosophy dominated: as a consequence of the growth of scientific knowledge, moral emancipation in the direction of individual autonomy would come about too. This requires a liberal social democracy. However, on closer inspection the emancipation ethics of the positivists seems to be at odds with their thesis that norms do not follow from facts. In the legal context, this leads to Legal Realism: law is viewed as a social fact. Critical rationalism improved on some of the weaknesses of logical positivism, but nonetheless remains closely related to its empiricist criterion of science and correspondence theory of truth. In opposition to the absolutist claims of Plato and Marx, Popper emphasises the fallibility of human knowledge. Therefore he advocates an open society, a liberal democracy that allows its citizens to freely exchange critical arguments so that they can learn from their mistakes. Hermeneutics denies the empirical basis that logical positivism and critical rationalism use as the criterion for scientific objectivity, stressing the mediating role of human interpretation. The point of departure of hermeneutics is that human life and its cultural products (such as legal and scientific texts) show a meaningful coherence. Unlike inanimate nature, man is not determined by causes, but guided by reasons or rules. In other words, human beings themselves give meaning to their lives, and this cannot be registered by means of external observation in accordance with the model of natural science. It must be understood from the ‘inside’. The human scientist is capable of this because he is himself also a meaning-giving being. This view restores the academic status of normative legal reasoning, which gets lost in the scientism of positivism.

Eighteenth-Century French Enlightenment

Chapter 5 discusses developments in the 18th-century French Enlightenment. At the time of the Enlightenment the spiritual and material foundations of the modern constitutional state were established. Of central importance was the rejection of divine authority, both in respect of the truth of science and the authority of politics and law. In its place came the ideal of human autonomy: every person is equally responsible for his own life. With this, monarchy lost its traditional ground of justification. In terms of the new view, government should serve the people, not the other way around. The Enlightenment philosophers thus arrived at a radical critical stance vis-a-vis existing political and social relationships: the French absolute monarchy and feudal division of estates with their inequality and lack of freedom were in blatant conflict with human dignity. The political and legal philosophy of the French Enlightenment showed two different responses to this social exploitation: a liberal response, by Montesquieu and his kindred spirits, and a perfectionist response, by Rousseau. Both would become prominent in philosophy and science, and in addition attain significant historical influence. The chapter furthermore discusses the important contribution of Beccaria to the reform of criminal law and procedure. Beccaria was the first to sketch a criminal law of which not vengeance and retaliation, but the prevention of criminal acts, is the central rationale; and in which criminal procedure does not only serve to detect and punish, but also to protect the fundamental rights of citizens and suspects against the prosecuting authority.

Hobbes, Locke, and Spinoza

Chapter 4 traces the development of the notion of the social contract in the thinking of Hobbes and Locke, and looks at the way in which Spinoza attempted to resolve political and religious pluralism. With the theories of Hobbes and Locke, modern legal philosophy developed two different versions of the social-contract model as legitimation of state and law. They both put the individual at the centre of their political theories. The social contract serves here as metaphor for the view that an individual is bound to a central authority only if he could have voluntarily agreed to it. In the case of both philosophers, this leads to a narrow account of legal morality: the law should restrict itself to safeguarding the conditions for fair and peaceful coexistence, and refrain from enforcing ideals of moral perfection. The difference between Hobbes and Locke lies primarily in the fact that Hobbes bases his argument on a completely amoral point of view: the self-interest of the individual man in light of his instinct for survival. Locke, on the other hand, adopts a moral perspective: the right to freedom of an individual. These different points of departure lead to dissimilar views of the role of the state. While Hobbes emphasises the importance of law and order, Locke also advocates freedom. Hobbes propagates an absolutist state, aimed at the maintenance of order so as to pacify the imminent war of all against all. Locke arrives at a liberal constitutional state which in a neutral manner has to protect the freedom and property rights of everyone. Spinoza, in his turn, attempts to overcome the pluralism in worldviews by showing that at their core all worldviews boil down to the same. Differing from Hobbes, and closer to Locke, Spinoza contends that the granting of freedom not only does not harm public peace, but is essential for the thriving of piety and for securing public peace.

The Commencement of the Modern Age

Chapter 3 sets out some of the developments in natural science, religion, politics and law in the beginning stages of the Modern Age, that is, from around the 15th and 16th centuries. It presents the philosophies of Calvinism, Machiavelli, Descartes, and Grotius. Descartes’ methodological scepticism typically led him to reconstruct (knowledge of) the world from the perspective of the subject (if I doubt everything, one fact still remains beyond doubt: that I am doubting, therefore, that I think, therefore, that I exist), who can attain scientific knowledge of the external world. Grotius introduced the social contract: individuals have a natural right to freedom, but can reasonably be expected to agree with the institution of state authority to secure their self-preservation.’ The aim is specifically to show the source of the modern ideas of an original position of freedom of the individual, as well as the notion of the social contract. The Scientific Revolution in this period led to a worldview which deviated radically from the Christian-Aristotelian outlook of the preceding period. This raised a number of new problems regarding the foundation of a duty to obey the law. The most important problem was that the classical idea of the world as a rationally coherent and purposive whole was abandoned in the modern view. Therefore it was no longer evident that human society constituted a moral order with which the individual should identify. Instead, in modern philosophy the individual acquired the central position. A new line of reasoning, therefore, had to be developed to indicate why, and under which conditions, an individual had to subject himself to a legal order. Insofar as religious developments are concerned, the Reformation made an important contribution in rethinking the relation between religion/the church and the state. Because of man’s sinful nature, government and law would be exceeding their powers should they attempt to force subjects into a morally perfect way of life. One could not expect more from the state than the safeguarding of social order. Protestantism, moreover, strongly emphasised the direct accountability of every human individual towards God. Legal enforcement of the ideals of the good life is then inappropriate. The Renaissance, which already started flourishing in Italy from the 13th century, similarly regarded the human individual as central, but without religious considerations playing any substantial role. The ideals of the humanists of the Renaissance concerned the full development of the abilities of each person.

Twentieth Century: 1945–2000

In Chapter 9, a great variety of philosophical movements of the second half of the 20th century is discussed, including communitarianism, the philosophy of ordinary language, postmodernism, Critical Theory, neo-Aristotelian natural law and deconstruction. Philosophers such as MacIntyre, Wittgenstein, Lyotard, Habermas, Apel, Nussbaum and Derrida are placed on stage. These philosophers all continue to concern themselves with the ideals of the Enlightenment, either with their further elaboration, their rejection, or their so-called ‘displacement’. The continuing debates about the Enlightenment ideals are set within the aftermath of the Second World War, the Universal Declaration of Human Rights, the decolonisation process, the Cold War, the growth in Asian economies, the eventual demise of communism, as well as increasing contact between different cultures. These historical developments provide the setting for one of the central issues to be discussed in this chapter, that is, whether cultural (and individual) pluralism inevitably leads to relativism or whether the Enlightenment ideals and liberal human rights have a universal import.

Twentieth Century: 1900-1945. §§ 8.3-8.5

In Chapter 8, philosophical developments in the first half of the 20th century are discussed, more specifically psychoanalysis, logical positivism, critical rationalism, and hermeneutics. This period was inter alia marked by the growth of applied science, two world wars and an economic depression. The chapter discusses in detail Freud’s psychoanalysis. With this method, access can be gained to the human unconscious, a feature of the mind which led Freud to the conclusion that the modernist belief in the foundational nature of human consciousness is an illusion. Consciousness is only a derived effect of the more primary unconscious where the sexual and aggressive drives play a dominant role. In logical positivism the optimistic belief in progress which characterised Enlightenment philosophy dominated: as a consequence of the growth of scientific knowledge, moral emancipation in the direction of individual autonomy would come about too. This requires a liberal social democracy. However, on closer inspection the emancipation ethics of the positivists seems to be at odds with their thesis that norms do not follow from facts. In the legal context, this leads to Legal Realism: law is viewed as a social fact. Critical rationalism improved on some of the weaknesses of logical positivism, but nonetheless remains closely related to its empiricist criterion of science and correspondence theory of truth. In opposition to the absolutist claims of Plato and Marx, Popper emphasises the fallibility of human knowledge. Therefore he advocates an open society, a liberal democracy that allows its citizens to freely exchange critical arguments so that they can learn from their mistakes. Hermeneutics denies the empirical basis that logical positivism and critical rationalism use as the criterion for scientific objectivity, stressing the mediating role of human interpretation. The point of departure of hermeneutics is that human life and its cultural products (such as legal and scientific texts) show a meaningful coherence. Unlike inanimate nature, man is not determined by causes, but guided by reasons or rules. In other words, human beings themselves give meaning to their lives, and this cannot be registered by means of external observation in accordance with the model of natural science. It must be understood from the ‘inside’. The human scientist is capable of this because he is himself also a meaning-giving being. This view restores the academic status of normative legal reasoning, which gets lost in the scientism of positivism.

Twentieth Century: 1900-1945. § 8.1: Introduction

In Chapter 8, philosophical developments in the first half of the 20th century are discussed, more specifically psychoanalysis, logical positivism, critical rationalism, and hermeneutics. This period was inter alia marked by the growth of applied science, two world wars and an economic depression. The chapter discusses in detail Freud’s psychoanalysis. With this method, access can be gained to the human unconscious, a feature of the mind which led Freud to the conclusion that the modernist belief in the foundational nature of human consciousness is an illusion. Consciousness is only a derived effect of the more primary unconscious where the sexual and aggressive drives play a dominant role. In logical positivism the optimistic belief in progress which characterised Enlightenment philosophy dominated: as a consequence of the growth of scientific knowledge, moral emancipation in the direction of individual autonomy would come about too. This requires a liberal social democracy. However, on closer inspection the emancipation ethics of the positivists seems to be at odds with their thesis that norms do not follow from facts. In the legal context, this leads to Legal Realism: law is viewed as a social fact. Critical rationalism improved on some of the weaknesses of logical positivism, but nonetheless remains closely related to its empiricist criterion of science and correspondence theory of truth. In opposition to the absolutist claims of Plato and Marx, Popper emphasises the fallibility of human knowledge. Therefore he advocates an open society, a liberal democracy that allows its citizens to freely exchange critical arguments so that they can learn from their mistakes. Hermeneutics denies the empirical basis that logical positivism and critical rationalism use as the criterion for scientific objectivity, stressing the mediating role of human interpretation. The point of departure of hermeneutics is that human life and its cultural products (such as legal and scientific texts) show a meaningful coherence. Unlike inanimate nature, man is not determined by causes, but guided by reasons or rules. In other words, human beings themselves give meaning to their lives, and this cannot be registered by means of external observation in accordance with the model of natural science. It must be understood from the ‘inside’. The human scientist is capable of this because he is himself also a meaning-giving being. This view restores the academic status of normative legal reasoning, which gets lost in the scientism of positivism.

The Synthesis of Kant

Chapter 6 focuses on the 18th-century German Enlightenment philosopher, Immanuel Kant, with David Hume in the background, as one of his most important interlocutors. Kant attempts to design a grand synthesis of the two Enlightenment ideals: scientific progress and moral progress. Kant saves both science and morality by fully acknowledging, contrary to empiricism, the constructing role of human consciousness. It is human reason that makes scientific knowledge possible by organising the chaos of observations into general categories and causal relations. If scientific knowledge is partly based on the constructions of human consciousness, it however has only relative value. It only furnishes knowledge of reality as it appears to our consciousness, not of reality itself as it exists separate from observation and human organisation. This, nonetheless, also has an important advantage: with the same manoeuvre with which Kant relativises the validity of science, he secures a space for ethics. The causal relations into which science organises reality are after all similarly a human construction. Reality as such may look quite different. Whether this is the case we cannot possibly know. In Kant’s view, we do however have an indication that there is more, that is, a moral reality. This indication is to be found in our moral consciousness. Kant concludes from this that human reason entails two forms of judgment. Via our theoretical reason we construct a scientific, causal-explanatory worldview. Apart from this, we can also via our practical reason establish how, irrespective of our empirical selfish motives, we should act in the world. In our scientific reality we create order by way of explanatory natural laws, whereas in the moral world we are guided by the moral law as this finds expression in our conscience. According to Kant, the existence of a community is ensured through law, which consists of an application of the categorical imperative to the extent necessary for social co-existence. In its content, positive law can deviate greatly from the ideal, natural law that follows from the categorical imperative. In Kant’s view, such law is indeed immoral, but it nevertheless falls within the concept of ‘law’. Kant even states explicitly that bad positive law must always be obeyed.

The Commencement of the Modern Age. § 3.1: Introduction

Chapter 3 sets out some of the developments in natural science, religion, politics and law in the beginning stages of the Modern Age, that is, from around the 15th and 16th centuries. It presents the philosophies of Calvinism, Machiavelli, Descartes, and Grotius. Descartes’ methodological scepticism typically led him to reconstruct (knowledge of) the world from the perspective of the subject (if I doubt everything, one fact still remains beyond doubt: that I am doubting, therefore, that I think, therefore, that I exist), who can attain scientific knowledge of the external world. Grotius introduced the social contract: individuals have a natural right to freedom, but can reasonably be expected to agree with the institution of state authority to secure their self-preservation.’ The aim is specifically to show the source of the modern ideas of an original position of freedom of the individual, as well as the notion of the social contract. The Scientific Revolution in this period led to a worldview which deviated radically from the Christian-Aristotelian outlook of the preceding period. This raised a number of new problems regarding the foundation of a duty to obey the law. The most important problem was that the classical idea of the world as a rationally coherent and purposive whole was abandoned in the modern view. Therefore it was no longer evident that human society constituted a moral order with which the individual should identify. Instead, in modern philosophy the individual acquired the central position. A new line of reasoning, therefore, had to be developed to indicate why, and under which conditions, an individual had to subject himself to a legal order. Insofar as religious developments are concerned, the Reformation made an important contribution in rethinking the relation between religion/the church and the state. Because of man’s sinful nature, government and law would be exceeding their powers should they attempt to force subjects into a morally perfect way of life. One could not expect more from the state than the safeguarding of social order. Protestantism, moreover, strongly emphasised the direct accountability of every human individual towards God. Legal enforcement of the ideals of the good life is then inappropriate. The Renaissance, which already started flourishing in Italy from the 13th century, similarly regarded the human individual as central, but without religious considerations playing any substantial role. The ideals of the humanists of the Renaissance concerned the full development of the abilities of each person.