Philosophies of Law Flashcards
Differentiate between natural law and positive law.
Natural law: based on the belief that law has some higher or divine origin – rights are endowed by nature, faith-based/secular versions, and government laws should not violate natural law, or they will be deemed unjust/invalid
Positive law/legal positivism: based on human reason and authority – laws are created by lawmakers and are deemed valid if they were passed according to proper procedures (they do not have to be moral to be valid)
Believers in natural law – Plato
Developed the concept of idealism: the law should reflect certain universal, absolute, eternal truths, even though humans could never fully achieve these truths
Believers in natural law – Aristotle
Developed the concept of rationalism: the study of nature, guided by human reason, would reveal the true meaning of law, and we can come to understand G-d by examining his creation (the natural world)
Observation – conclusion –application
Human condition: ask what G-d wants the law to be, then achieve happiness by following the law and living a righteous life
Believers in natural law – Cicero
“Law is the mind and reason of intelligent man, the standard by which justice and injustice are measured.”
Civil/human laws should be set aside if, in the minds of wise men, they contradict the laws of nature
Believers in natural law – Justinian
Believed that law could be divided into the universal laws of nature and civil laws
Natural law ensured that people were born free (e.g. laws that permitted slavery were a violation of natural law)
Created the Justinian Code, which became the foundation of law in most Western-European countries: the gathering of Roman Law into one code divided into four parts (institutes – textbook, digest – casebook, codex – statutes and principles, novels – new proposed laws)
Believers in positive law – Thomas Hobbes
Believed that obedience of human law was the only way to protect man from his own natural selfishness and brutality
Natural law was simply used to support the authority and maintain the power of tyrants
Developed the social contract theory: 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
The nature of a contract/exchange: given a choice, a person would typically give up certain of his rights in exchange for peace and security, putting himself under government rules that are fairly made and fairly enforced; citizens provide obedience and compliance in exchange for greater security and liberty
Human condition: law should oppose human nature and protect us from our selfish inclinations
Believers in positive law – John Locke
Believed that G-d created man and we are, in effect, G-d’s property
Believed that murder and suicide violated the divine purpose
Perspective on the social contract theory: citizens can better secure their liberty and property by giving up a little of each to a central authority
Believers in positive law – Jeremy Benthem
Developed the concept of utilitarianism: humans are motivated to seek pleasure and avoid pain, thus law should seek to produce the greatest degree of happiness for the greatest number of people
A system of law requires an authoritative body, legal commands, an imposed duty/obedience, and enforcement through penalties
Human condition: law should work with human nature in order to maximize human happiness
Believers in positive law – John Austin
Developed the concept of legal positivism: asserts that it is possible and valuable to have a morally neutral theory of law
Believed that natural law is too subjective and would lead to anarchy
Only positive law could provide an objective standard for human conduct
Human condition: ask what would make humans happy, then create laws to achieve these ends
