Transcript Jurisprudence

Jurisprudence
Chapter 3
Philosophy of Law
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Abbreviated!
What is ‘jurisprudence’?
•
Jurisprudence is the philosophical
interpretation of the nature and
purpose of Law.
It is your idea or beliefs about what purpose the law should be.
(jurisprudence continued)
What do you believe to be the main purpose of the
law?
Order?
(discussion)
Economic survival (Quality of life/Standard of living) ?
(discussion)
Instill Morality?
(discussion)
Dispute resolution?
Philosophy is often divided into two
main streams or schools of thought:
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Natural Law
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Positive Law (positive law theorists)
(natural Law theorists)
Natural Law
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The theory (idea) that human laws come from
eternal (never ending) and unchangeable
principles that regulate the world.
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We become aware of these natural laws through
reason. (they do not have to be legislated)
Ex. A mother takes care of her newborn.
That we would help those in need.
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There does exist a moral imperative
in the law
Positive Law
1.
Law is a body of rules formulated by
the state that the citizens are obliged to
follow for the good of the state.
Ex. traffic laws
This theory or philosophy of law gained
strength in England at a time of widespread
political, social and religious upheaval.
This period of violence, fear, confusion and
ignorance affected the way thinkers of the
time viewed the origin and purpose of law.
Secularism: separate from religion
sec‧u‧lar /ˈsɛkyələr/–adjective
Secular
1.of or pertaining to worldly things or to things that are not
regarded as religious, spiritual, or sacred; temporal: secular
interests.
Moral Absolutism
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Moral absolutism is the belief that there
are absolute standards against which
moral questions can be judged, and that
certain actions are right or wrong, devoid
of the context of the act. "Absolutism" is
often philosophically contrasted with moral
relativism.
Moral Relativism
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Moral Relativism is a belief that
moral truths are relative to
social, cultural, historical or
personal references, and to
situational ethics, which holds
that the morality of an act
depends on the context of the
act.
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Between moral absolutism and moral
relativism,
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which would you associate with Natural
law and which with positive law?
Natural Law
Moral Absolutism ?
Positive Law
Moral Relativism ?
(Read: Socrates, Plato, Aristotle)
Natural Law Theorists –
All believe that the law has a moral imperative
Socrates
Used the process of Dialectic
Trial Of Socrates p.70-71
The whole purpose of the law is to encourage people to live good,
virtuous lives lives.
Believed in God, urged people to care for the soul over money and
indulgence.
Obey the law even in the face of death.
Plato
Humans are social by nature / like political animals
Organized society is a natural institution
The state did not exist only for economic reasons.
Justice in the individual is achieved when the lower powers (needs:
food, sex, aggression, passion) are ruled/controlled by your higher
powers (intellect)
This
is achieved through reason.
Justice in the state is achieved though law.
Believed that education was the answer to making people ‘good’
(Anyone who really knew what good was, would do good)
Aristotle
Humans are like political animals but set apart by their ability to use
reason and to rationalize.
By following reason and not their passions, people can reach their
potential.
Believed that Human ability to reason was a spark of the divine (from God)
“If reason is divine, then, in comparison with man, the life according to
(reason) is divine in comparison to human life.”
Believed that education alone was not enough. We had to be scared of law
and punishment to really obey law.
Believed that morally, people fall into 3 categories:
Born good (very few)
Educated to do good (very few)
Ruled by their passions and desires
(majority)
St.Thomas Aquinas
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A Christian Philosopher and Professor at the University of
Paris.
Divided Law into 4 categories:
Eternal Law
Natural Law
Both Natural law
Divine Positive Law
Human Positive Law
Both Positive law
Thomas Hobbes 1588-1679
Witnessed the violence and atrocities of the English civil
war.
 Believed that the state of nature was nothing more than
war where the strong and intelligent plunder
(destroy/abuse) the weak and slow.
 We need a power that we are ‘in awe of’ to keep us in
line.
 In the interest of self preservation, we agree to surrender
some of our rights to that king or government.
 In the state of nature, we would live lives that were
“solitary, nasty, brutish and short.”
 People are greedy and violent
 A proponent of positive law
 Not an optimistic fellow.
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John Locke 1632-1704
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Tempered (balanced) the extreme pessimism of Hobbes.
Incorporated some natural law theory into things.
If that government or king that keeps us in order
violated the natural rights of the people people were
justified in rebelling and replacing the unjust government
with one that respects their natural rights.
Natural Rights: Life, Liberty (free thought, speech,
religion) , and Property.
Government is formed with the consent of the people
and existed to preserve their rights.
Continued…
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Locke had strong influence on Thomas Jefferson, chief
author of the U.S. Declaration of Independence in which
Jefferson echoes natural law theory that certain truths
are universal and can be concluded through reason:
…That all men are created equal; that they are
endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the
pursuit of happiness; …
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John Locke’s combination of natural and positive law
would have the greatest influence on modern legal
thinking.
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Inspired both the French and American revolutions.
Jeremy Bentham (1748-1832)
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Bentham believed that when left to our own devices, we
try to achieve maximum pleasure and happiness in our
lives.
A law should be evaluated by it’s utility (usefulness) to
society as a whole. Basically;
…a truly just law provides “the greatest happiness [for]
the greatest number” of people. Utilitarianism
John Austin (same as above plus…)
 Law should be completely separated from morality.
 Every law had to be obeyed, no matter what.

Utilitarianism - Wikipedia, the free encyclopedia
Legal Realism
Shift away from legal theory and focus on what
actually happens in the justice system.
 Sets out to examine the law in a realistic rather
than theoretical fashion.
 Bias of Judges
Legal realism offers a focus on the temperament
of individual judges and how their backgrounds
might influence their judgments.
Legal realism - Wikipedia, the free encyclopedia
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Marxism
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a theory of law developed by Karl Marx
based on his economic analysis of English society
during the industrial revolution.
He saw the bulk of the population go from farming
to industry and he noticed the unprecedented
number of workers in the mills factories and mines
and the relatively small size of the capitalist class
that controlled these “means of production”
He concluded that British law favored the capitalist
class by strengthening its power over the working
class.
Ex. Making forming labor union a criminal offence.
Marxism
 An
economic and political theory
that states that law is an
instrument of oppression and
control that the ruling classes use
against the working classes.
Feminist Jurisprudence
 Feminism
 The
theory that law is an instrument
of oppression by men against women.
 Product
of the women's liberation
movement of the 60’s
 Challenges
that law is gender neutral.
Developed while many laws still
oppressed women;
-Women not considered “persons” under the law
until 1929
-Women's franchise act allowed women over 21 to
vote was passed in 1918
-Women couldn’t vote in Quebec provincial
elections until 1940
-Until 1925 a man could file for divorce on grounds
of adultery but women couldn’t. They had to prove
desertion.
 Feminist
groups claim 3 major ways
the law has discriminated against
them:
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1) Laws that are discriminatory against women
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2) failure to recognize that women are different
from men
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3) Systematic bias: the system is designed to
keep women out of top positions (government,
business)
Feminism
A
social and political theory that
states that law is an instrument of
oppression and control that men use
against women.