Transcript Introduction to Legal Theories

Chapter 3
 Philosophy
explores the big questions of
human existence:



What is it to be a person?
How can we know anything?
How should we live?
Ethics, or moral philosophy, focuses on
such concepts such as good and evil,
right and wrong, and justice and
injustice
 Philosophy
also considers how we define
what behaviours should be seen as
criminal or as non-criminal, so law has
historically been an area of great interest to
philosophers
 The
big questions philosophers struggle
with are: Where does law get its authority?
Why do people obey rules, like laws, if this
means losing a certain degree of freedom?
 Wouldn’t
we be happier if we did as we
pleased and followed our desires all the
time, rather than following rules?
 Philosophers
developed the idea of the social
contract. It suggests that without rules,
people are in a state of nature – largely free
to do as we wish, but also subject to
violence.
 By
entering a social contract with one
another, people agree to give up some of
their freedom in exchange for some amount
of security against these various harms.
Facts:
• Philip Zimbardo was the psychology professor who
was the leader of the study
•
24 male college students (out of 70 applicants) were
selected to re-enact prison life in a fake prison
housed inside a building at Stanford University
•
The 24 males selected were given a role of being a
“guard” or being a “prisoner”
•
Zimbardo made it clear that the prisoners could not
be physically harmed, but encouraged the guards to
create an atmosphere where the prisoner felt
“powerless”

http://www.youtube.com/watch?v=JlUkzfITiSs
1.
2.
Natural Law
Positive Law
Contemporary Theories:
1. Legal Formalism
2. Legal Realism
3. Critical Legal Theory
4.
Legal Feminism
 Natural
Law is an ideal, enduring, and
universal moral order independent of human
will, habits or political decrees.
 Divine
in origin/God given
 Set of ideal, enduring, inflexible rules from
which all human or positive law should
originate.
 Sin
to try and alter these laws
 Universal, absolute, eternal
 The same law that directs physical nature
regulates human behaviour. Ie. God
 Laws
are not of man, but of man as part of
nature... “An unjust law is no law at all”
Example: to commit murder seems wrong at
any time/place. In this view, the laws made
by people are less important than these
“natural” laws.
 Morality
and justice are separate concepts
from law
 In
other words, the law must conform to
morality and justice to be valid. Morality
and justice is what God says it is.
Natural Law Philosophers:
Socrates
Plato Aristotle
St. Thomas Aquinas
Positive law refers to laws based on human
authority (such as political leaders or
lawmakers)
 Man
made and State given
 Law is simply what the Crown (and later
Parliament) commands ... “The law should
be followed simply because it is the law”
 The
function of law is more important than
its quality; law should be more judged by its
social utility.
 Morality
and justice are not separate
from law. Morality and justice are what
the State or Law says it is.
Example: This is why countries can have
different laws about the same behaviours,
such as prostitution or drug use.
Positive Law Philosophers:
 Thomas Hobbes
 Jeremy Bentham
 John Austin
https://vimeo.com/118909707
Legal Formalism is a theory that argues that
law consists of a body of rules and nothing
more, and that the role of a judge is to apply
these rules
 Law
is a scientific entity.
 Judges can only apply the law as it exists –
they cannot depart from the law or use their
discretion in an unusual case.
Legal Realism is a theory that argues the law,
itself, is often vague, uncertain, and frequently
influenced by the views of judges

Sub-category of legal positivism – What is true,
moral and fair depends upon the perspective of
the individual.

It differs from both natural law and positive law
in that it tries to explain the law through real
actions of individual law makers rather than
through ideas about nature or the government
 Law
is flexible – judges’ interpretation of any
law is influenced by their own experiences
and by prevailing values of their communities
 “The
law is essentially whatever lawmakers
say it is”
https://www.youtube.com/watch?v=IBJA0hres
mE
 Critical
Legal Theory argues that since law
reflects individual values, they can contain
the biases of powerful social groups.
 While
the law appears to offer justice for all,
in practice it is a tool most easily used by
people who already have a high degree of
social power and status
 CLTs
argue that the law should be used as a
tool to achieve social justice Ex. Health and
welfare of citizens
Legal feminism (feminist jurisprudence) is a
theory of law arguing that the legal system
upholds and reinforces political, economic,
and social inequality for women
 The
state and all its features are seen as
male.
 Laws have been framed to perpetuate
patriarchy
 Objectivity is a male-prized norm - females
value empathy more.
 Effect
can be seen in recent changes to laws
concerning rape, sexual harassment,
employment, etc.
Example: Prostitution Laws in Canada