Download History of Legal Thought

History of Legal Thought
“One of the great delusions in the
world is the hope that evils of this world
can be cured by legislation.” –Thomas
B. Reed
Ethical Though
• Aristotle’s virtue theory (prudence,
courage, temperance, justice)
• Kant’s duty theory
• Bentham and Mill’s utilitarianism
• Natural law morality
• Divine Command Theory
• Relativism
• Subjectivism
• Skepticism
What is law?
• Law has been defined as “an ordering of
reason, promulgated by the person in
charge of a community, for the common
good.”
What is law?
1. All law must be reasonable
2. All law must be publicly disclosed
3. All law must be promulgated by an
authority.
4. All law must be for the common good,
not for the self-interest of a ruler or the
ruler’s favorites.
Hammurabi's Code
• Laid down by Hammurabi during his 43 year reign
of Babylon from 1797 – 1750 BC
• Cover wide variety of criminal and civil offences.
• Provide fines for certain crimes and severe
punishment for other crimes.
• “If a son strike his father, his hands shall be hewn
off.”
• “If any one steal the property of a temple or of the
court, he shall be put to death, and also the one
who receives the stolen thing from him shall be put
to death.”
Ancient Egypt
• The Pharaoh was a god. He ruled the
people as a deity and his word was law.
• Look at the story of Joseph and how
Joseph had power over the people.
• The people owed absolute allegiance to
the Pharaoh and the Pharaoh cared for
the people.
Ancient Israel
• The Noachide Commandments
– No idolatry
– No blasphemy
– No bloodshed
– No incest or adultery
– No theft
– The right to establish courts of law
– No eating of blood
Ancient Israel
• The Christian counsel at Jerusalem made
the list to be 4 laws (Acts 15:22-29)
– No idolatry
– No perversions (adultery)
– No strangled meats
– No eating blood
Ancient Israel
• The Mosaic Covenant and the Divine Code
– No other Gods before Me.
– No idols
– No blasphemy
– Respect Sabbath
– Honor parents
– No murder
– No adultery
– No theft
– No false testimony
– No coveting
Shema Israel
• "“Hear, O Israel: The Lord our God, the Lord is
one! You shall love the Lord your God with all
your heart, with all your soul, and with all your
strength. “And these words which I command
you today shall be in your heart. You shall teach
them diligently to your children, and shall talk of
them when you sit in your house, when you walk
by the way, when you lie down, and when you
rise up. You shall bind them as a sign on your
hand, and they shall be as frontlets between
your eyes. You shall write them on the doorposts
of your house and on your gates." (Deuteronomy
6:4-9 NKJV)
Ancient Greece
• The Greek tragedy Antigone asks some
fundamental questions about law and
freedom:
– is there a difference between public and
private morality
– is there absolute morality?
– is religion essential to morality?
– What is conscience?
– Is civil disobedience right?
Ancient Greece
• The pre-Socratic philosophers sought to
discover a “first principle” from which to
explain the world.
• Pythagoras thought morality and law
should conform their actions to the
harmonies common to the universe.
• Heraclitus used fire to symbolize the
unchanging standard of justice amid the
constant change of the world.
Ancient Greece
• Protagoras, for whom “man is the measure
of all things,” thought of law and political
arraignments as matters of human
invention.
• He argued that one could not depend on
some natural disposition toward justice but
that citizens must be schooled in politics
and justice by their communities.
Ancient Greece
• Hippias believed that the natural likeness
of humans implies their equality and
universal fraternity.
• He believed that all political and legal
arraignments were fallible.
• Which modern theory draws on his ideas?
Ancient Greece
• Callicles and Thrasymachus hold that the
strong should rule over the weak and that
law is a device which allows the weaker to
band together against the stronger.
• The implication is that obedience to the
law or morality is unnecessary for the
stronger, except when it is in their self
interest.
Ancient Greece
• Plato in the “Republic” seeks to refute the
ideas of the Sophists by arguing that the
impulses of an individual can never be
satisfied if they shake off the direction of
reason. Tyrants will arise and take advantage
of the populace under the appearance of
giving order. Only the wise are able to
establish a sound order in society.
Ancient Greece
• Plato goes on to argue that society is only
established well when we note the
parallels of the tripart structure of the soul
(reason, emotions, desires) in society (the
city’s rulers, its military, and its workers) as
the source of moral and political
arraignments. The laws of the community
need to participate in the eternal principles
of justice.
Roman Legal Theory
• In the years of the Roman Republic, there
was a concept of ius gentium, the law of
nations – the idea that there is a natural
law or natural justice behind any civil code.
• Ulipian and Gaius argued that natural law
and civil law meet in the areas of kinship
and contract which are common across all
cultures.
Roman Legal Theory
• The Romans made a distinction between
ius (the general system of law and right)
and lex (a particular piece of legislation or
a particular legal principle within ius).
• Under the emperors, the law moved from
being based on natural principle to being
based on the will of the Caesar.
• Justinian in 533 AD codified the Roman
laws and all concept of common law was
destroyed.
Paul’s Natural Law
• Romans 1:17-28, 2:12-16
• Paul states that even without knowledge of
scripture, by nature man can know there is
a God and a moral code
• He goes on to speak about moral
psychology and sociology and natural and
unnatural desires
• He then says that all have this law “written
on their hearts”
Thomas Aquinas
• Eternal law is God’s providential ordering
of natures to their ends, including the
design of human nature
• Divine law refers to God’s explicit
commands, for instance, in the Decalogue
from Exodus or the Sermon on the Mount
in Matthew
Thomas Aquinas
• Natural law involves human participation in
God’s eternal law as regards the
providential ordering of human life; the use
of human reason to reflect on what our
common human nature is; and what is
required to respect that nature, as found in
all human beings.
Thomas Aquinas
• Human law consists of legislation of
various types including constitutions,
statutes, administrative decrees and even
customs. Laws of this type are for more
specific than natural law and determine
matters that natural law leaves
indeterminate, but these laws must not
violate the previous laws (eternal, divine or
natural).
The Break: West from East
• The Roman empire collapses into the Holy
Roman empire which in turn breaks into
two pieces.
• The East keeps the idea that the King is
the representative of God and the head of
the church.
• The West divides church and state into
two separate institutions: the church being
spiritual and the state being secular.
Divine Right of Kings
• This idea comes partly from the Eastern
idea of the king being the representative of
God, partly from a flawed reading of Ro 12.
• The kings of Western Europe believed that
monarchy, their monarchy, was bestowed
by God.
• Thus the king had the right to make any law
necessary for the “good” of the state.
Magna Charta
• This document was forced on John by his
barons as a guarantee of their rights and
the rights of the lower classes.
• The idea of common law and jury trial was
born before this, but the right of it was
secured in the Magna Charta.
• The king no longer had unlimited control to
tax. The Barons thus had a check on the
king.
Samuel Rutherford
• Was a Scottish minister who wrote Lex
Rex (The Law is King)
• In this book, he refuted the idea that the
right of the king was somehow divine.
• He argued that Saul and David were not
king just because they were anointed by
God – they had to be accepted by the
people before they could assume the
throne and then they were bound by the
law.
John Locke
• Locke believed that freedom was a moral
and natural right.
• People have natural rights to life, liberty
and property and the function of
government is to protect those rights.
• He also argued that there is a natural right
to revolution if other natural rights are
threatened by the government.
The Founding Fathers
• Jefferson in the Declaration of
Independence draws on the idea of natural
law when he says “We hold these truths to
be self evident…”
• The Constitution, specifically in the Bill of
Rights, codifies a number of natural law
concepts in the very root of the legal and
political system
Martin Luther King Jr.
• In his “Letter from the Birmingham Jail” he says “An
unjust law is a human law that is not rooted in
eternal law and natural law. Any law that uplifts
human personality is just. Any law that degrades
human personality is unjust. All segregation
statutes are unjust because segregation distort the
soul and damages the personality. It gives the
segregator a false sense of superiority and the
segregated a false sense of inferiority. Segregation,
to use the terminology of the Jewish philosopher
Martin Buber, substitutes an "I-it" relationship for an
"I-thou" relationship and ends up relegating
persons to the status of things.”
Positive Law
• “Societies will continue to need to be
regulated by laws, but these should be the
products of democratic decision-making
and should be open to public revision.
The goal of democratic societies is to
maximize the opportunities for individual
autonomy and freedom of choice.” – Paul
Kurtz
Positive Law
• “In a democratic society each man must
act as he thinks the principles of political
right to require them to. We are to follow
our understanding of these principles, and
we cannot do otherwise. There can be no
morally binding legal interpretation of
these principles, not even by a supreme
court or legislature. Nor is there any
infallible procedure for determining what or
who is right.” – John Rawls