Introduction to Legal Theories Chapter 3

Legal Philosophy 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 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.

Stanford Prison Experiment- 1971 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

Legal Theories: Natural Law Positive Law Contemporary Theories: Legal Formalism Legal Realism Critical Legal Theory Legal Feminism

1. Natural Law 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

2. Positive Law 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 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

Today's Issue of Euthanasia https://vimeo.com/118909707 http://ethics-euthanasia.ca/legislation/

3. Legal Formalism 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.

4. Legal Realism 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”

Case of R. v. Ryan https://www.youtube.com/watch?v=IBJA0hres mE

5. Critical Legal Theory 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

6. Legal Feminism 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.

Example: Prostitution Laws in Canada Effect can be seen in recent changes to laws concerning rape, sexual harassment, employment, etc. Example: Prostitution Laws in Canada https://ca.news.yahoo.com/blogs/dailybrew/what-is-and-is-not-legal-under-canadas-new-200231637.html