Legal Heritage Flashcards
Why do we have laws?
To keep order in society
Code of Hammurabi
- Earliest written laws
- Severe
- “If a man strikes his father, his hand shall be removed”
Mosaic Law
- The 10 commandments
- “Thou shall not commit murder”
Athens
- Socrates and plato
- laws should be based on morality
- Immoral laws should be disobeyed
Roman Law
- Codification
- Spread across Europe by the conquering of Roman armies
- Basis of modern civil law
Law vs Justice
Law:
- Provides order in society
- Rule of law
- Resolving disputes
- defends a persons property and rights
Justice:
- Provides fairness
- Civil disobedience is valid if the laws are unjust
- to be just, the law must be consistent with moral law and the law inspired by god.
Magna Carta
- Still used today
- British common law
Rule of Law
-Nobody is above the law, not even the king.
Ordeal
Putting a hot rod in hand to prove guilt or innocence
Throwing in water
Stare Decisis
“Stand by what has been decided”
Adjudication
Arriving at a decision based on the presentation of evidence
Domestic vs International Law
Domestic:
-Laws made and enforced within one state
International:
-Agreements between 2 or more states
Public vs Private law
Public:
-Laws relating between individual and state
Private:
-Disputes between citizens or corporations
Substantive vs Procedural
Substantive:
-Written laws such as the Highway traffic act or Canadian Criminal Code
Procedural:
-Steps and procedures/methods used to administer the law
Divine vs Natural vs Positive law
Divine:
- Derived from God(s)
- It can’t be changed or overruled
Natural:
- Derived from human nature which is to be good
- all people strive to be good
- goodness is essential for our wellbeing
- It is universal
- Seek out the meaning of truth by questioning the law
Positive:
- Law and justice aren’t the same thing
- Law is an opinion of the who holds power
- The law is forceful to keep order
Aristotle
“If Person’s are not equal, they will not have equal share”
Hobbes
“No action can be unjust. But when a covenant is made, then to break it is unjust”
Austin
“No positive law is legally unjust”
Cicero
“Law is a natural force; it is in the mind and reason of intelligent man, the standard by which justice and injustice are measured”
Bentham
“The purpose of law is to ensure the greatest good for the greatest number”
Plato
“I declare that justice is nothing else than that which is advantageous to the stronger. It follows that the just man disregards them (laws)”
Augustine
“Justice being taken away, then, what are kingdoms but great robberies?”
Aquinas
“The first precept of law is that good is to be done and pursued, and evil is to be avoided”
Primary Sources
- customs and conventions
- religion
- Social and Political Philosophy
