Transcript Unit 1 – Heritage of Law

Unit 1 – Heritage of Law
Beyond Natural and Positive Law
Disucssion
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If you disagreed with the moral basis of a
law, would you still obey it?
What makes a law, law?
Why are laws so highly regarded in
society?
Reviewing the difference between
Natural and Positive Law
Natural Law
Vs.
Positive Law
God
Vs.
The State/Government
Rationalism/justice
Morals
Vs.
Vs.
The law IS just
Control
Universal laws
Vs.
Man made laws
Universal principals
Vs.
Self preservation/law is
order
Born rights
Vs.
Majority rules
Common good
Vs.
“General will” the greatest good
for the greatest amount of people
Natural Law Review
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Who defines what is moral and what is
not?
Is the idea of what is moral changing?
Natural Law address the question, "What
gives the law validity?"
Natural Law Review
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Law is not separate from morality - it is
subordinate to morality.
If a law conflicts with morality, morality
wins, and the law should be ignored.
Socrates
http://www.youtube.com/watch?v=k2Kzy
mrmNa0
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Refer to Figure 3.1 on Page 74
http://www.youtube.com/watch?v=JumLZ
QkofgY
The Natural Philosophers Review
Plato (student of Socrates)
 people had to be educated to know what was
good but then would do good; also, law had a
moral purpose
http://www.youtube.com/watch?v=q34MHpBu0O
o
Aristotle (384 – 322 BCE, student of Plato)
 some people born good, others educated to be
good, but majority require law to make them
good; also, law had a moral purpose
http://www.youtube.com/watch?v=tbgHbzrL3d0
The Natural Philosphers Review
Cicero (106 – 43 BCE, Roman)
 Natural laws are unchanging and superior;
Roman law had a higher purpose as morally &
legally superior to all others – laws could be set
aside if they conflicted with natural law
Justinian (483-565 CE, Roman)
•
Law has two parts:
o the universal laws of nature, oberved by
everyone
o civil laws, specific to particular
Saint Augustine (354 – 430 C.E.):
 Divine law
Christian justice will reign supreme
Church has a moral duty and authority to
intervene on decisions of government
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“The only perfect law is Eternal Law, God’s Law.”
The Natural Philosophers Review
St. Thomas Aquinas (1225 - 1274 - influence by
Aristotle) - 4 kinds of law:
(1) eternal (God’s law)
(2) natural (which can be known by humans – ex.
parents care for kids, preserve own life, don’t
harm others & assist poor, sick & elderly)
(3) divine positive law (scripture) &
(4) human positive law (reasoned, common good,
made by ruler & published)
Positive Law Review
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Recognized human authorities set laws
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Why “recognized human authorities”?
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Laws are valid when procedures are
followed and laws are set in place by the
correct authorities.
The Positive Philosophers Review
Thomas Hobbes People agree to surrender rights
(1588 – 1679) in exchange for justice from a
superior power; collective rights
trump & no revolt if disagree
Locke (1632 – Positive law in constitution but
1704)
based on natural law and
inalienable individual rights (life,
liberty & property) & rebel if
government violates
http://www.youtube.com/watch?v=Njtn1iukmQI
The Positive Philosophers Review
Rousseau
(1712 –
1778)
Bentham
(1748-1832)
Austin
(1790 –
1859)
Social contract whereby
government can govern according
to the general will of the people
People try to be happy but law is
the best way to achieve the
greatest good for the greatest
number of people
Same as Bentham, except that
objective standard of law; ethics
and morality don’t determine
whether a law is good or bad
Mill
(1806 –
1873)
Utilitarianism – the greatest good
for the greatest number of people.
Father was a student of Bentham’s.
Laws should serve a utilitarian (or
useful) function in society.
Review
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Activity 7: Theories and Philosophies
of Law – OERB
Humour Break
*Legal Formalism
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Body of rules
Apply law
No creating law or social policy
Precedent
*Legal Realism
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Law is often uncertain and vague
Judges become the real authors of the law
Law is determined by what actually
happens in court
Bias?
*Feminist Jurisprudence
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Theory that law is an instrument of
oppression by men against women
Theory challenges the idea that the law is
objective and neutral in its application and
that everyone is treated equally under the
law
Feminist Jurisprudence
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Believes this differential treatment takes
three forms:
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Historical (Person’s case 1929, Vote 1940, Old
Adultery laws – needed desertion also)
Current failures (mat leave, equal pay)
Institutional (glass ceiling)
Marxism
Economic Analysis of Law
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Karl Marx collaborated
with Fredrick Engel on
Communist Manifesto,
1848
Advocated for
worker’s rights
Wrote Das Kapital
Marxism
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Devastation of the Industrial Revolution
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Class struggle between workers and
capitalists
Law favoured capitalists
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Unions were criminal
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Marxism
Don’t copy…
“Law is simply class rule. The ‘ruling class’
controls the formation of law.”
“Law is an instrument used for maximizing
ruling class interests in society and
controlling the working class.”
Homework
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Read Brandeis Brief/Court (1908), p.81 &
do ?’s 1-3 on page 81