Community, Reciprocity, and Justice: Exploring Social Order and Legal Theories

Classified in Philosophy and ethics

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Community and Reciprocity

The myth of Protagoras distinguishes human groups based on community. It blurs the line between public and private spheres. A community is a group of people with shared beliefs and values, willing to compromise for collective goods. Relationships within a community are direct, multilateral, and encompass various functions.

Generalized Reciprocity: Primarily occurs in domestic settings. It involves exchanging goods or services without immediate return, fixed prices, or a need for balanced trade.

Balanced Reciprocity: Exists between different groups, often expanding beyond blood relatives, within a village or tribal context.

Society and This

Life in large societies creates a constant tension between the desire for social order and the yearning for smaller, human communities. Modern totalitarianism tragically attempted to "tribalize" extensive social orders. The totalitarian state functions as a total company, claiming all human and nonhuman resources within society.

Law and Justice

The Law

Law is a set of regulations governing human behavior within a society. Justice, inseparable from law, aims to uphold social peace by ensuring all citizens respect the lives and property of others.

Theories on Law

Iusnaturalism

According to Charles S. Nino, iusnaturalism rests on two theses:

  1. Moral principles are universally valid, fair, and accessible through human reason.
  2. A legal system or rule cannot be considered "juridical" if it contradicts these moral principles of justice.

Rejecting either proposition disqualifies one as a naturalist.

Critique of Iusnaturalism

Kelsen criticizes natural law doctrine as an attempt to derive human conduct rules from human nature, based on their goodness. He also points out the dualism between positive law and natural law, where positive law is justified and valid only if it aligns with natural law.

Legal Positivism

Legal positivism argues that any law derives its validity from its origin. It asserts that legal science should focus solely on the reality of "law," excluding ethics or "natural law."

Positivism

Absolute positivism is a caricature of actual positivist thought. Thinkers from the 18th and 19th centuries, including Kelsen, adopted a methodologically positive stance.

Justice

Many Greeks viewed justice broadly: something is just if its existence doesn't disrupt the order it belongs to. Justice is achieved by restoring the original order, correcting and punishing excesses. Humans must align their behavior with moral, social, and legal norms. Justice involves harmony and balance between:

  1. The sensitive and rational components of a human being.
  2. The individuals within a society.

Justice, as harmony and balance, is unrelated to the interests of the powerful.

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