Transcript theories and concepts of law



Unit 1




Plato, Aristotle, Locke, Rousseau, and Marx disagreed over
what society ought to be like, BUT agreed that a truly good
and just life can only be found in a truly good and just
society
As a starting point, most accept the need for a legitimate
authority to create and enforce laws within a
group/society/state (political, religious, etc.).
Generally speaking, the law is a set of rules that tell people
what they can and cannot do. Failure to abide by these
rules usually results in consequences or punishments.
Most of the time, laws are followed if they are seen as
reasonable and just.
 Natural
law was generally assumed to be the
proper basis of legislative law in the 19th century.
It was "the law above the law."
 It has been seriously challenged and almost
eclipsed by a rival theory of law in the 20th century
— namely, "positive law" which simply means that
man makes up his own law.
 Instead of consulting universal principles, man
consults his own needs, wants, and agendas, or
the changing norms of the society in which he lives.
Natural Law
 is
the philosophical basis of law.
 It is unwritten
 Underlies moral principals of wright and wrong,
which can be derived by reasoning and heeding to
one’s conscience
 Argues that a universal moral command exists for
making and judging laws
 It is the conscience of the legal system
Positive Law
is the working of the law through the authority of the state.
 A human creation
 Laws are established by the state for the good of the state
as a whole
 Law has no moral purpose (other than survival of the
state).
 It refers to written rules that must be followed to the letter
regardless of circumstance
 Anyone who violates the law must be punished according
to the written rules

Socrates
 Morality is an important
part of natural law.
 Laws are meant to help
people to live the right
way; they help people
become better people.
 True justice lies in
obeying law that is based
on the eternal principles
that govern the universe
Plato
 Harmony between the
individual and society
are important
components of morality
and thus natural law.
 Human laws must be
based on knowledge of
the eternal laws that rule
the universe.
 Education produces
good behaviour.
Aristotle
 Law has moral purpose
 People are not all good,
and education alone
cannot ensure that
people will be good.
 Only laws can ensure the
good behaviour of all
people.
 Using reason, humans
can develop their
greatest potential within
the state.
 “Law
is the mind and reason of intelligent man, the
standard by which justice and injustice are
measured.”
 However,
civil or human laws should be set aside if,
in the minds of wise men, they contradict the laws
of nature. Thus, it would be permissible for citizens
to withdraw their support from a government that
enacted “evil” laws.
St. Thomas Aquinas
 Natural law is the eternal
law (from God) that operates
in humans.
 Human law is the product of
reason which is based on
natural law and is made
public by society’s ruler.
 This ruler is responsible for
the “care” of the community.
 It is published so that
everyone knows it (made
public).
 A moral obligation exists to
obey just laws
Thomas Hobbes
 All people are prone to violence and
disorder; this is their natural state.
 People did not form governments to
recognize and defend their naturallaw rights, but to ensure law and
order through strong leadership.
 Positive law exists to maintain peace
and order and control the greed, fear
and violence that are part of human
nature
 Proposed the concept of a “Social
Contract”

The idea of a social contract is premised on the notion that
an individual's liberty and property are better secured if we
band ourselves together than if we are left alone, each to
our own devices.

Given a choice, a typical person would:
o give up certain of his rights in exchange for peace and security, and
o put himself under government and follow its rules, made and fairly
enforced.

This arrangement is in the nature of a contract - an
exchange:
o Citizens provide obedience and compliance in exchange for greater
security and liberty
John Locke
 People have “natural
rights”; which include “life,
liberty, and property”
 The law of the state must
protect these fundamental
rights.
 If the ruler violated the
natural rights of the people,
the people were justified in
rebelling against the ruler
and replacing the
government with one that
respected these rights.
 Is
John Locke a natural or positive law philosopher?
o Three-minute philosophy – John Locke
 Utilitarianism:
Humans are
motivated to seek pleasure and
avoid pain. Thus, law should seek
to produce the greatest happiness
for the greatest number of people.
 A system of law has the following
requirements:
o authoritative body,
o legal commands,
o an imposed duty or obedience, and
o enforcement through penalties.


 Law
is a body of rules that describe what ought
to be.
 Legal Formalism believes that absolutes exist.
 Judges can only apply the law as it exists.
Cases are decided by specific rules, standards,
and common meaning of the laws in force.
 The judge's experiences, persuasions, and how
he or she feels play no part.
 Also called Legal Conservatism.
 Also
known as Judicial Activism
 Argues that judges are the authors of law.
 Law is all about value judgments.
 The Court, not Parliament, really makes the
law.
 Judges shape law to suit own pre-conceived
notions of justice.
o Theorists: Oliver Wendall Holmes & William
James
Karl Marx
 Focused on the failure of the
legal system to treat society
equally.
 Since the ruling class
controls the formation of the
law, they use it to suppress
the working class.
 This idea can be extended to
describe the inequalities of
the law as applied to
minority groups, as well as
“feminine jurisprudence”.
 Purpose
of law is resource allocation.
 Economic impact should be considered, not
just morality.
o Ex: bicycle helmets should be mandatory only if
the savings (use of health services) outweighed
the cost of enforcement.
o Theorists: Richard Posner
philosophy of law based on the political, economic, and
social equality of sexes.
 The theory that the law is used as an instrument of
oppression by men against women. (example: voting)
 Male-written history has created a bias in the concepts of
human nature, gender potential, and social
arrangements.
 Gender is created socially, not biologically. Sex
determines such matters as physical appearance and
reproductive capacity, but not psychological, moral, or
social traits.

o Theorists: Martha Fineman,,Catharine Mackinnon, Susan Orkin,
 Extension
of Legal Realism which became a
movement during 1970’s and 80’s
 Profoundly influenced by civil rights movement of
the 1960’s
 No method of lawmaking is truly neutral.
 Interpretation and meaning of Law depends on
circumstances and human choice.
 Law is about value choices.
 Judges should be given discretion to ensure the
law achieves justice.
The idea that a valid law must include procedures that are
“fair and workable” (can be applied equally?)
 Connected to principle of “Rule of Law”

1. Law is necessary in an orderly society
2. The law applies equally to everyone
3. A person’s legal rights will not be taken away except in
accordance with the law
Connected to the principle of fundamental justice
o i.e. sections 7-14 and 24 of the Charter of Rights and
Freedoms
 concerns the fairness and the transparency of the processes
by which decisions are made (legislative or judicial)

Justice depends on there being an independent body or
branch of government that can challenge, review, and limit
the laws made by the ruling power (Courts?).
 The courts, particularly the Supreme Court of Canada, are
responsible for acting as a “restraining influence” on the law
making power of Parliament.
 The Charter of Rights and Freedoms protects the rights of
individuals and minorities, but these rights can be limited for
the “common good”.
 It asserts that judges should not hesitate to strike down a law
that is obviously unconstitutional

o Theorists – Philip Selznick