 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 natural- law 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 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.

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 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