3Learning Goal for Today By the end of the lesson, students will be able to explain the main philosophers of positive law
4ExpectationsAnalyse the views of historical and contemporary philosophers of lawCGE4c – responds to, manages and constructively influences change in a discerning mannerCGe7d – promotes the sacredness of life
5Origins of Positive Law Development of positive law theory in England followed a period of widespread religious, political and social upheavelCivil warProtestant v. CatholicCromwell v. King (beheading)
6Postive LawLaw is established by the head of state and for the good of the state as a whole.The law holds no moral purpose other than to ensure the survival of the state.The law by its nature must be obeyed and anyone who challenges it is subject to severe penalties.
7Thomas Hobbes (1588-1679) was an atheist and Republican claimed the state of nature was a state of perpetual war as the strong and intelligent plundered the weak and the slow
8HobbesPeople strengthen their position by destroying those around themThe result was that in the state of nature people led lives that were “solitary, poor, nasty, brutish and short”.
9HobbesTherefore, security and preservation of peace were fundamental to polictical and social justice.
10HobbesSince all people are prone to violence and disorder, we form governments so that a strong leader will rule over us and maintain law and order.
11HobbesIn the interest of self-preservation, people agree to surrender their rights to the state or king because justice depends largely on the existence of a superior power.
12HobbesPeople need government to legislate or enact laws in order to regulate their relationships with one another.
13HobbesCitizens make an agreement in which they surrender the right to govern themselves to the ruling power in exchange,the ruling power takes steps necessary to protect life, property and contract.
14HobbesHaving transferred their right to govern to the ruler the people can no longer claim a right to control that rulerJustice depends largely on peoples’ obedience to civil law
15HobbesRefusing to obey the law was foolish because it would return society to its earlier state of perpetual warfare and anarchy
16John Locke ( )tries to soften the extreme pessimism of Hobbes by incorporating aspects of natural law into his theory
17LockeDid not believe collective rights were more important than individual rights.
18John LockePositive law of the state was embedded in a constitution, but the constitution had to be based on natural law which emphasized individual rights
19John Locke“All people have the right to self-preservation but that the law should restrain people from doing hurt to one another.”
20John LockeIf gov’t violated the natural rights of individuals, the people were justified in rebelling and replacing the unjust gov’t with one that would respect their rights.
21John Locke Defined these fundamental rights which are unalienable as life,liberty (of thought, speech and religion)and property.Purpose of civil law is to preserve these three rights
22John LockeIn the state of nature, people’s passions get the better of their reason, this leads to injustice as the strong took whatever they want from the weak
23John LockeLaw protects individuals against the arbitrary acts of others who would interfere with their freedom
24John LockeTherefore, it is to a person’s advantage to form a civil society in which the majority hands over to the state, the authority to preserve their fundamental rights
25John LockeHis ideas laid the foundation for modern theories on democracy
26Thomas Jefferson Declaration of Independence That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
27Canadian Charter of Rights and Freedoms Whereas Canada is founded upon principles that recognizethe supremacy of God andthe rule of law
28John LockeBoth Constitutions echo the natural law theory that certain truths are self-evident, they are universal and can be discerned through reason
29Jean-Jacque Rousseau (1712-1778) French philosopher“Man is born free; and everywhere he is in chains…How did this change come about?”Civilization has a corrupting influence on humans
30According to RousseauWe recognize the necessity of the state to govern, advocate the idea of a contract between citizens and the state
31Rousseau Referred to this agreement as the “Social Contract” Mutually beneficial relationship in which the state could be removed if the people will it.
32RousseauTherefore, the state should govern according to what he referred to as the “general will of the people”
33RousseauDifficulty lay in determining exactly what he meant by the ‘general will’ of the people
34Jeremy Bentham (1748 – 1832)Views on law were formed mainly in reaction to the Industrial RevolutionHis primary concern was legal and social reform
35BenthamBelieved that people, left to their own devices, tried to achieve the maximum amount of pleasure and happiness in their lives
36BenthamThe law should be evaluated by its utility to society as a wholeIt should be based on what is practical and realistic rather than an idealistic moral view
37According to Bentham,The law is simply the best way of ensuring the good of all, or “the greatest good for the greatest number.”
38UtilitarianismThe theory that the law should achieve the greatest good for the greatest number of people.
39BenthamLaw is simply a means of social control and has nothing to do with morality
40John Austin ( )The main purpose of government and of law is to enable “the greatest possible advancement of human happiness”.
41Austinuseless to judge law by a moral or religious code because these are subjective measures
42AustinEach person in society can have their own interpretation of the lawThey will obey those laws they judge good and disobey those they judge to be badSociety cannot function in this way
43AustinIndividuals must bend their will to that of the governing body since the purpose of the law is to ensure the happiness of the majority
44According to AustinNo positive law can be unjust, because the law itself is the measure of what is just or unjust.
45AustinThe acts of individuals are to be tried against an objective standard of law and that ethics or morality should play no part in determining whether a law is good or bad.