Do Rights Derive from Justice or Does Justice Arise from Rights? A Philosophy of the Prime Inherent Law

Author: Humphris-Norman, D.O.
Year:2010
Pages:324
ISBN:0-7734-3661-8
978-0-7734-3661-9
Price:219.95
This work demonstrates that Power is prior to Rights and introduces a concept of a Power-Responsibility relationship which affects non-legal moral questions such as the treatment of animals.

Reviews

“. . . engages vigorously with the relevant literature in jurisprudence and political philosophy. . .” – Dr. Alex Neill, University of Southampton

“The book re-directs us to the guiding thought that law derives its authority, not from security alone, not from civility, or from autonomy, but from the connection it has with justice as the basis of a civilized life. From this perspective Humphris-Norman argues that the views of legal positivists and natural law theorists are at least open to partial reconciliation.” – Dr. Peter Johnson, University of Southampton

Table of Contents

Foreword by Peter Johnson
Preface
Chapter 1: Justice – The Concept
Introduction
A look to the past
Plato
Aristotle
Cicero (De Officiis)
Hume
Mill
Summary
Legal justice
Retributive justice
Rectification justice
Deterrence
Political justice
Justice in relation to other virtues
The great justice myth
Chapter 2: Justice in Relation to a Civilized Society
Freedom
The law’s relationship with freedom
The growth of society: the purpose of law
Society or the state
Law as a created body
The positivist view of law
Justice
The relationship of society, law, punishment, justice, and their various philosophical inputs
Law
Punishment
Justice
Man as a group animal
Law making
The system of jurisprudence
The justification of punishment
Summary: a brief look back and a glimpse forward
Chapter 3: Rights, Power and Jural Relations
Hohfeld
Rights and duties
Privileges and no-rights
Powers and liabilities
Immunities and disabilities
Short summary
Extrapolation
Rights in rem and rights in personam
Extrapolation with respect to power
General
The application of Hohfeldian principles to other aspects
Kocourek
Jural relations
Summary
Chapter 4: Obedience to the Law and Conflicts of Law and Moral
Outlook
Civil disobedience
A different view
Conscientious objection
Summary
Positive duty to obey the law
Chapter 5: Rules of Law – Principles of Justice
Hard cases – principles of justice v the rights thesis
Precedent
Power and responsibility
Acts of power – non-jural or anomic relations
Chapter 6: Justice in Relation to Foreseeability and Intention
Intentionality
Direct and oblique intentions
Doctrine of double effect
Problems for the courts’ determination
Forseeability
Intention and civil law
Intention and the dualist approach
Intention – a philosophical perspective
Intention and responsibility
Constructive intention – a personal view
Mens rea
Intention and attempt
Intention and recklessness (including heedlessness)
Intention as a mental state – Davidson
Intention and duress
Intention and desire
Summary
Chapter 7: Punishment
Definition
Purpose
Punishment in criminal matters
1) Retribution
2) Deterrence
3) Reform or cure
Justification
The psychological necessity of a retributive factor
Deterrence
Exemptions, excusable actions, and amelioration
Variations in the concept of law
Efficiency of the system
Chapter 8: Types of Punishment – A Review of Options
Perceptions of justice
Legal perception of justice v public acceptance
The requirements of punishment
Forms of punishment
A review of the 13 categories
Capital punishment
Mutilation
Infliction of pain – physical
Infliction of pain – mental
Exile or banishment
Branding
Incarceration – gaol
Forfeiture of property
Forced labour
Fines
Open labour
Forfeiture of rights
Ridicule and humiliation
Treatment
Summary
Statutory liability offences
Chapter 9: Conclusions
Bibliography
Table of Cases
Index