Slideshow 1: Law - What it is & What it Does Flashcards
What is Law?
Some Philosophical approaches: Positivists
law is what the sovereign says it is – law has nothing to do with morality (Austin)
The approach of a realist? (Pessimist?)
What is Law?
Some Philosophical approaches: Natural Legal Theorists
law is about some overarching sense of morality, apparently handed down to society by a deity
– law is morality (Locke)
What is Law?
Illustration:
Mary speeding to save choking child
- Did Mary “do wrong”? Should Mary be
punished? - Would a positivist’s answers be different than
those of a natural law theorist?
(My own answer)
Positivists’ believe law has nothing to do with morality so Mary would have done wrong to them. Natural Legal Theorists believe law is about some overarching sense of morality, therefore, Mary would not be fully in the wrong to them.
What is Law?
Ronald Dworkin Quote
“Law is not exhausted by any catalogue
of rules or principles…[i]t is an
interpretive, self-reflective attitude
addressed to politics in the broadest
sense.”
What is Law?
Professor Osanic Quote
“Our laws are constantly evolving to meet the changing needs, values and ethics of modern society. As society changes, so must the laws change to meet this social evolution. This legal
process tends to be slower than the actual societal change.”
What is Law?
OXFORD DICTIONARY:
“A rule enacted or
customary in a community and recognized as
enjoining or prohibiting certain actions and
enforced by the imposition of penalties.”
What is Law?
BLACKS LAW DICTIONARY (v.5.):
“ That which is laid down, ordained or established. A rule or method according to which phenomena or actions co-exist or follow each other.”
What is Law?
- How we interpret what the law is can be controversial, or at least imprecise.
- Additionally, laws, moral imperatives or rules (for e.g. an industry’s voluntary code of conduct) we live by can come into conflict – which of these governs?
What is Law?
While impossible to define in a sentence, a decent working definition is that law is a set of rules of general application that:
- governs conduct or situations;
- is enforceable through a recognizable means; and
- binds members of a society.
What Does Law Do?
- Laws variously serve to regulate, punish and compensate.
What Does Law Do?: Criminal Law
Punishment for violating societal
mores – to punish and deter.
What Does Law Do?: Civil Law
The law between private actors – aims
to compensate – not really about punishment.
What Does Law Do?: Regulatory Law
Part criminal, part civil – through punishment or civil sanction aims to gain adherence to a governmental policy.
What Does Law Do?
- Regulation of most aspects of business activities in Canada is done through civil law and regulatory structures.
- “RULE OF LAW”
