Essay Flashcards
Naturalist Approach
▪ Laws change as moral views and attitudes change.
▪ Society has the right to determine what it deems morally unacceptable and to use laws to express its views.
i. Plato (427 -347 BCE)
▪ Plato believed that the law’s moral content is worthy of human respect and obedience.
▪ Plato saw that the law’s role is to act as a guide for society, as a means of measuring justness and of reforming evil practices.
▪ The first and most basic law is to do good and avoid evil.
▪ For Plato, law is closely associated with morality.
ii. Aristotle (384-322 BCE)
▪ Aristotle believed that the origin of law is found in nature NOT in the Gods.
▪ Humans have reason allowing them to tell the difference between good and bad, just and unjust
▪ He saw the concept of justice as two fold:
a) General Justice (concerns the whole nation)
b) Particular Justice (citizen relationship)
iii. Cicero (106-43 BCE)
▪ Advanced the notion that natural laws are universal and unchanging and therefore considered higher laws.
▪ Natural laws apply to activities for the common good and apply to all citizens.
iiii. St. Thomas Aquinas (1225-1274 AD)
▪ Roman Catholic Church influence
▪ Spiritual and earthly world would unite and therefore the church made the laws which would rule over all civil or human made law.
▪ Justice sprang from natural rights- they were not created by human laws.
▪ Credited with being a major influence in the development of modern human rights, theories and laws.
▪ Law and justice were inseparable
v. St. Thomas More
▪ Famous for his book Utopia and for his martyrdom. As Chancellor to Henry VIII, he refused to sanction Henry’s divorce to Queen Catherine. More was imprisoned, tried and executed.
▪ Moral law superseded the law of the state
▪ Follower of natural law tradition believed that for a law to be considered as a law, to command obedience, must be just, must be in accordance with the laws of nature.
▪ When more engaged in civil disobedience by refusing to take the oath dictated by the Act of Supremacy, he did so because of hid belief and faith that there were (moral/natural law) principles greater than an Act of Parliament(government)
Philosophies of Positive Law
▪ Philosophers tried to analyze human nature and society without relying on religious revelation or the teachings of medieval philosophers such as Aquinas.
▪ Age of reason; intellectual movement emphasizing the logical analysis of philosophical problems.
▪ 16th Century philosophers (Hobbes and Bentham) rejected the idea of natural law arguing law and justice were not the same thing and that law was nothing more than the opinion of whoever held powers at the moment.
▪ Had no moral purpose other than to ensure survival of the state, and obedience was no longer a matter of conscience.
Positivists Approach
▪ The only purpose of law is to prevent harm to others.
▪ The connection between law and morality is arbitrary.
▪ Enforcing morals has proven to be difficulty.
i. Thomas Hobbes (1588-1679)
▪ Felt all people are born selfish and will only seek their own interests; this selfishness leads to war and violence
▪ Hobbes wrote, “All mankind [is in] a perpetual and restless desire for power … that [stops] only in death.” Consequently, giving power to the individual would create a dangerous situation that would start a “war of every man against every man” and make life “solitary, poor, nasty, brutish and short.”
▪ Hobbes saw the law and morality as separate.
ii. John Locke (1632-1702)
▪ Recommended that if the king violated the natural rights of the people, then the people were justified in rebelling in replacing the government
▪ What were these natural rights? The most fundamental rights were rights to life, liberty and property- The state must preserve these rights.
▪ Locke tried to synthesize both natural and positive law theory and would be influential in justifying the modern theories on democracy and inspired the leaders of both the American and French revolutions and is the foundation of Canadian constitutional law.
iii. Jeremy Bentham (1748-1832)
▪ Founder of Utilitarianism – theory that laws should be based on the practical and realistic rather than on idealistic moral view.
▪ “It is the greatest good to the greatest number of people which id the measure of right and wrong.”
▪ The law was a means of social control had nothing to do with morality.
Legal Formalism
A.
▪ Legal formalism is a philosophy developed by British Jurist Sir William Blackstone.
▪ He suggested that judges do not make, the law they merely find it
▪ Under legal formalism all law is established it is it simply the role of the courts to discover the appropriate rule and apply it
▪ Conservative minded judges are usually not interested in policy arguments that consider the social purposes and effects of the law
▪ They feel that such matters are political concerns and should be left to elected legislatures
▪ Legal formalists argue that the most scientific application of legal precedent to give new cases determinacy (or certainty) and predictability to law
B. Legal Realism
▪ Those with a great deal power in society are not likely to give people with less power the means to make social change
▪ It argues that since law reflects individual values they can contain basis of powerful social groups
▪ Critical legal scholars argue that 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
▪ This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups
▪ Legal realism is considered a subcategory of legal positivism because it holds that values are variable, not universal
▪ In this view, what is true, moral and fair depends upon the perspective of the individual
▪ Legal realists argue that in reality the law is flexible
▪ Judges’ interpretation of any law is influenced by their own experiences and by the prevailing values of their communities
▪ This explains why two different judges can come to different conclusions with an identical set of facts about the case
▪ When judges make these decisions, they are actually creating the law by applying it
▪ Individual bias is built into every legal decision - for legal realists the laws essentially whatever the lawmakers say it is
C. Critical Legal Studies
▪ The CLS movement holds that meaning depends on circumstances and human choice
▪ Every act of interpretation, therefore, reflects a particular bias of interpreters - discrimination based on gender, religion, race, social class (Marxism) or ethnicity
▪ The law and maintain social inequality because it advances the interests of the powerful people in society and marginalizes others
D. Feminist Jurisprudence
▪ The law reflects the needs of males over female since society is Patriarchal = male domination
▪ Laws to protect women such as sexual assault were to protect male interests and not female rights
▪ Male politics are dominating these issues - historically and can be seen in the exploitation of females in the workplace and unfair labor laws about equal work for equal pay
▪ Society has ignored the interests of women’s rights such as abortion and prostitution
