Liberal Lifeworlds

Question 1

Lifeworld

Answer 1

• The ontological (the study of being), epistemological (how we come to know what we know), and cosmological (beliefs regarding the origin of the universe) framework through which the world appears to people
• Lifeworlds are creation stories
• individuals have unique perspectives; none is determined by their lifeworld.
• lifeworld establish a range of possibility, not a set of determinate ends
• ex: the social contract is a liberal creation story

Question 2

Rule of Law

Answer 2

• everyone is equal under the law, everyone is subject to the law, no one is above the law
• under liberalism, everyone, including the state, is equal under the law
• liberalism utilizes the rule of law to protect property rights
• When property rights were threatened by monarchs or legislatures, it was held that, under the rule of law, natural law protections of property stand above positive law, and the essential purpose of law is to protect property

Question 3

Rooted Constitutionalism

Answer 3

• efforts to articulate Indigenous law within the forms of liberal constitutionalism ignore or trivialize the ongoing significance of Indigenous lifeworlds to governance of Indigenous lives today
• explores conceptions of Indigenous identity while complicating considerations around fundamentalism.
• I think this image is a map for the relationship between lifeworld and law. The roots of a society are its lifeworld: the story it tells of creation, which reveals what there is in the world and how we can know. Creation stories disclose what a person is, what a community is, and what freedom looks like. The trunk is a constitutional order: the structure generated by the roots, which organizes and manifests these understandings as political community. The branches are our legal traditions, the set of processes and institutions we engage to create, sustain, and unmake law. The trunk conditions the branches: it doesn’t determine what they’ll look like, but it powerfully shapes them.
• rooted is very different from liberal constitutionalism
• Canadian constitutionalism isn’t rooted

Question 4

Natural Law

Answer 4

• Law based on morality
• John Finnis:
• We cannot separate law from morality
• Natural Law Theory: Less on god, more on reason, human rights, rationality
• Locke specifically asserted that law making power is controlled by natural law principles, and he wrote that “the law of nature is the greatest defence of the private property of the individual.”

Question 5

Positivism

Answer 5

Legal Positivism
• Law ‘as it is’ and not ‘as it ought to be’
• Legal system is posited: that is created by people
• Excludes morality from the definition of the law
• Aspires to be a scientific study of law
• Interested in what law is

• State/human law is, or should systematically be studied as a set of standards originated by conventions, commands, or other such social facts
• Common factor among legal positivists: law as laid down is separate from the law as it ought morally to be
• Hart’s positivism argues that there is very little indeterminacy in law
  When you look to law, he sees it as a body of rules, in which you get an answer
  -Legal positivism, also known as the “command” or “will” theory of law, holds that law is whatever legal officials declare as law.

Hart

• Primary and secondary rules (Hart)
• Primary rules: concerned with the actions that an individual must or must not do
• Secondary rules: concerned with the primary rules themselves: “Rules about rules”
  
  1. Rules of recognition (when is a rule legitimate?)
  2. Rules of change (how are rules changed?)
  3. Rules of adjudication (what do we do when it is alleged that a rule has been broken?)

Question 6

Rights (Legal and Property)

Answer 6

-Property rights are the product of and granted by the government, for they exist and are
preserved through state coercion.
- the rule of law
have been deployed within liberalism in a consistent pattern that protects property rights and the market from legislative interference
-liberalism utilizes the rule of law to protect property rights
-When the social welfare state laid burdens on property rights to achieve greater social justice through redistribution, it was said (by Hayek) to be inherently inconsistent with the requirements of the rule of law.
-‘Property’ in the narrow sense was undeniably one of these ‘rights’ to which Locke attached great importance.” Political theorists have debated why, given this concern, Locke failed to articulate any specific protections for individual rights.
- Locke thought such protections were unnecessary because only substantial property owners had the right to vote
-Locke’s Treatise had as its main goal the establishment of claims against unlimited interference by government with personal
interests or ‘rights.
-Locke- The social contract preserves the natural rights to life, liberty, and property, and the enjoyment of private rights