Unit 1 – Heritage of LawUnit 1 – Heritage of Law

Beyond Natural and Positive Beyond Natural and Positive LawLaw

AgendaAgenda

1. Beyond Natural and Positive Law 1. Beyond Natural and Positive Law lessonlesson

2. Take up Roncarelli v. Duplessis 2. Take up Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-[1959] SCR 121 on p.89 & do ?’s #1-4, p.90 4, p.90

3. Hwk read Brandeis Brief/Court 3. Hwk read Brandeis Brief/Court (1908), p.81 & do ?’s 1-3 on page 81(1908), p.81 & do ?’s 1-3 on page 81

Learning Goal for TodayLearning Goal for Today

By the end of the lesson, students By the end of the lesson, students will be able to analyze the views of will be able to analyze the views of historical and contemporary historical and contemporary philosophers of lawphilosophers of law

ExpectationsExpectations

Students will: analyze the views of Students will: analyze the views of historical and contemporary philosophers historical and contemporary philosophers of lawof law

Students will: evaluate the strengths and Students will: evaluate the strengths and weaknesses of different theories of lawweaknesses of different theories of law

CGE7e – witnesses Catholic social CGE7e – witnesses Catholic social teaching by promoting equality, teaching by promoting equality, democracy, and solidarity for a just, democracy, and solidarity for a just, peaceful and compassionate society peaceful and compassionate society

Reviewing the difference between Reviewing the difference between Natural and Positive LawNatural and Positive Law

Natural LawNatural Law VsVs..

Positive LawPositive Law

GodGod Vs.Vs. The State/GovernmentThe State/Government

Rationalism/justiceRationalism/justice Vs.Vs. The law IS justThe law IS just

MoralsMorals Vs.Vs. ControlControl

Universal lawsUniversal laws Vs.Vs. Man made lawsMan made laws

Universal principalsUniversal principals Vs.Vs. Self preservation/law is Self preservation/law is orderorder

Born rightsBorn rights Vs.Vs. Majority rulesMajority rules

Common goodCommon good Vs.Vs. ““General will” the greatest General will” the greatest good for the greatest amount good for the greatest amount

of peopleof people

The Natural Philosophers ReviewThe Natural Philosophers ReviewPlatoPlato (student of Socrates) (student of Socrates) people had to be educated to know what people had to be educated to know what was good but then would do good; also, law was good but then would do good; also, law had a moral purposehad a moral purpose

AristotleAristotle (384 – 322 BCE, student of Plato) (384 – 322 BCE, student of Plato) some people born good, others educated some people born good, others educated to be good, but majority require law to make to be good, but majority require law to make them good; also, law had a moral purposethem good; also, law had a moral purpose

The Natural Philosphers ReviewThe Natural Philosphers ReviewCiceroCicero (106 – 43 BCE, Roman) (106 – 43 BCE, Roman) Natural laws are unchanging and superior; Natural laws are unchanging and superior; Roman law had a higher purpose as morally Roman law had a higher purpose as morally & legally superior to all others – laws could & legally superior to all others – laws could be set aside if they conflicted with natural be set aside if they conflicted with natural lawlaw

The Natural Philosophers ReviewThe Natural Philosophers ReviewSt. Thomas AquinasSt. Thomas Aquinas (1225 - 1274 - influence (1225 - 1274 - influence by Aristotle) - 4 kinds of law:by Aristotle) - 4 kinds of law:(1) eternal (God’s law)(1) eternal (God’s law)(2) natural (which can be known by humans (2) natural (which can be known by humans – ex. parents care for kids, preserve own life, – ex. parents care for kids, preserve own life, don’t harm others & assist poor, sick & don’t harm others & assist poor, sick & elderly)elderly)(3) divine positive law (scripture) &(3) divine positive law (scripture) &(4) human positive law (reasoned, common (4) human positive law (reasoned, common good, made by ruler & published)good, made by ruler & published)

The Positive Philosophers ReviewThe Positive Philosophers Review

Thomas Thomas Hobbes (1588 Hobbes (1588 – 1679)– 1679)

People agree to surrender People agree to surrender rights in exchange for justice rights in exchange for justice from a superior power; from a superior power; collective rights trump & no collective rights trump & no revolt if disagreerevolt if disagree

Locke (1632 – Locke (1632 – 1704)1704)

Positive law in constitution Positive law in constitution but based on natural law and but based on natural law and inalienable individual rights inalienable individual rights (life, liberty & property) & (life, liberty & property) & rebel if government violatesrebel if government violates

The Positive Philosophers ReviewThe Positive Philosophers ReviewRousseauRousseau

(1712 – (1712 – 1778)1778)

Social contract whereby Social contract whereby government can govern government can govern according to the general will of according to the general will of the peoplethe people

BenthamBentham

(1748-(1748-1832)1832)

People try to be happy but law People try to be happy but law is the best way to achieve the is the best way to achieve the greatest good for the greatest greatest good for the greatest number of peoplenumber of people

AustinAustin

(1790 – (1790 – 1859)1859)

Same as Bentham, except that Same as Bentham, except that objective standard of law; objective standard of law; ethics and morality don’t ethics and morality don’t determine whether a law is determine whether a law is good or badgood or bad

Humour BreakHumour Break

*Legal Formalism*Legal Formalism

Body of rulesBody of rules Apply lawApply law No creating law or social policyNo creating law or social policy PrecedentPrecedent

*Legal Realism*Legal Realism

Law is often uncertain and vagueLaw is often uncertain and vague Judges become the real authors of Judges become the real authors of

the lawthe law Law is determined by what actually Law is determined by what actually

happens in courthappens in court Bias?Bias?

*Feminist Jurisprudence*Feminist Jurisprudence

Theory that law is an instrument of Theory that law is an instrument of oppression by men against womenoppression by men against women

Theory challenges the idea that the Theory challenges the idea that the law is objective and neutral in its law is objective and neutral in its application and that everyone is application and that everyone is treated equally under the law treated equally under the law

Feminist JurisprudenceFeminist Jurisprudence

Believes this differential treatment Believes this differential treatment takes three forms:takes three forms: Historical (Person’s case 1929, Vote Historical (Person’s case 1929, Vote

1940, Old Adultery laws – needed 1940, Old Adultery laws – needed desertion also)desertion also)

Current failures (mat leave, equal pay)Current failures (mat leave, equal pay) Institutional (glass ceiling)Institutional (glass ceiling)

MarxismMarxismEconomic Analysis of LawEconomic Analysis of Law

Karl Marx Karl Marx collaborated with collaborated with Fredrick Engel on Fredrick Engel on Communist Communist ManifestoManifesto, 1848, 1848

Advocated for Advocated for worker’s rightsworker’s rights

Wrote Wrote Das KapitalDas Kapital

MarxismMarxism

Devastation of the Industrial Devastation of the Industrial RevolutionRevolution

Class struggle between workers and Class struggle between workers and capitalistscapitalists

Law favoured capitalistsLaw favoured capitalists

Unions were criminalUnions were criminal

Marxism Marxism

Don’t copy…Don’t copy…

““Law is simply class rule. The ‘ruling Law is simply class rule. The ‘ruling class’ controls the formation of law.”class’ controls the formation of law.”

““Law is an instrument used for Law is an instrument used for maximizing ruling class interests in maximizing ruling class interests in society and controlling the working society and controlling the working class.”class.”

HomeworkHomework

Read Brandeis Brief/Court (1908), Read Brandeis Brief/Court (1908), p.81 & do ?’s 1-3 on page 81p.81 & do ?’s 1-3 on page 81