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Chapter 1 – Heritage of
Law
Positive Law
Agenda
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1. Positive Law
2. Roncarelli v. Duplessis
Learning Goal for Today
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By the end of the lesson, students will be
able to explain the main philosophers of
positive law
Expectations
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Analyse the views of historical and
contemporary philosophers of law
CGE4c – responds to, manages and
constructively influences change in a
discerning manner
CGe7d – promotes the sacredness of life
Origins of Positive Law
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Development of positive law theory in
England followed a period of widespread
religious, political and social upheavel
Civil war
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Protestant v. Catholic
Cromwell v. King (beheading)
Postive Law
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Law is established by the head of state
and for the good of the state as a whole.
The law holds no moral purpose other
than to ensure the survival of the state.
The law by its nature must be obeyed and
anyone who challenges it is subject to
severe penalties.
Thomas Hobbes (1588-1679)
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was an atheist and Republican
claimed the state of nature was a state of
perpetual war as the strong and intelligent
plundered the weak and the slow
Hobbes
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People strengthen their position by
destroying those around them
The result was that in the state of nature
people led lives that were “solitary, poor,
nasty, brutish and short”.
Hobbes
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Therefore, security and preservation of
peace were fundamental to polictical and
social justice.
Hobbes
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Since all people are prone to violence and
disorder, we form governments so that a
strong leader will rule over us and
maintain law and order.
Hobbes
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In the interest of self-preservation, people
agree to surrender their rights to the state
or king because justice depends largely on
the existence of a superior power.
Hobbes
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People need government to legislate or
enact laws in order to regulate their
relationships with one another.
Hobbes
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Citizens make an agreement in which they
surrender the right to govern themselves
to the ruling power in exchange,
the ruling power takes steps necessary to
protect life, property and contract.
Hobbes
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Having transferred their right to govern to
the ruler the people can no longer claim a
right to control that ruler
Justice depends largely on peoples’
obedience to civil law
Hobbes
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Refusing to obey the law was foolish
because it would return society to its
earlier state of perpetual warfare and
anarchy
John Locke (1632 -1704)
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tries to soften the extreme pessimism of
Hobbes by incorporating aspects of
natural law into his theory
Locke
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Did not believe collective rights were more
important than individual rights.
John Locke
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Positive law of the state was embedded in
a constitution, but the constitution had to
be based on natural law which
emphasized individual rights
John Locke
“All people have the right to selfpreservation but that the law should
restrain people from doing hurt to one
another.”
John Locke
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If gov’t violated the natural rights of
individuals, the people were justified in
rebelling and replacing the unjust gov’t
with one that would respect their rights.
John Locke
Defined these fundamental rights which are
unalienable as
 life,
 liberty (of thought, speech and religion)
 and property.
Purpose of civil law is to preserve these
three rights
John Locke
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In the state of nature, people’s passions
get the better of their reason, this leads to
injustice as the strong took whatever they
want from the weak
John Locke
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Law protects individuals against the
arbitrary acts of others who would
interfere with their freedom
John Locke
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Therefore, it is to a person’s advantage to
form a civil society in which the majority
hands over to the state, the authority to
preserve their fundamental rights
John Locke
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His ideas laid the foundation for modern
theories on democracy
Thomas Jefferson
Declaration of Independence
That all men are created equal; that they are endowed by
their Creator with certain unalienable rights; that among
these are life, liberty, and the pursuit of happiness; that
to secure these rights, governments are instituted
among men, deriving their just powers from the consent
of the governed; that whenever any form of government
becomes destructive of these ends, it is the right of the
people to alter or to abolish it and to institute new
government, laying its foundation on such principles and
organizing its powers in such form, as to them shall
seem most likely to effect their safety and happiness.
Canadian Charter of
Rights and Freedoms
Whereas Canada is founded upon principles
that recognize
the supremacy of God and
the rule of law
John Locke
Both Constitutions echo the natural law
theory that certain truths are self-evident,
they are universal and can be discerned
through reason
Jean-Jacque Rousseau
(1712-1778)
French philosopher
“Man is born free; and everywhere he is in
chains…How did this change come
about?”
 Civilization has a corrupting influence on
humans
According to Rousseau
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We recognize the necessity of the state to
govern, advocate the idea of a contract
between citizens and the state
Rousseau
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Referred to this agreement as the
“Social Contract”
Mutually beneficial relationship in which
the state could be removed if the people
will it.
Rousseau
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Therefore, the state should govern
according to what he referred to as the
“general will of the people”
Rousseau
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Difficulty lay in determining exactly what
he meant by the ‘general will’ of the
people
Jeremy Bentham
(1748 – 1832)
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Views on law were formed mainly in
reaction to the Industrial Revolution
His primary concern was legal and social
reform
Bentham
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Believed that people, left to their own
devices, tried to achieve the maximum
amount of pleasure and happiness in their
lives
Bentham
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The law should be evaluated by its utility
to society as a whole
It should be based on what is practical
and realistic rather than an idealistic moral
view
According to Bentham,
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The law is simply the best way of ensuring
the good of all, or “the greatest good for
the greatest number.”
Utilitarianism
The theory that the law should achieve the
greatest good for the greatest number of
people.
Bentham
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Law is simply a means of social control
and has nothing to do with morality
John Austin
(1790-1859)
The main purpose of government and of law
is to enable “the greatest possible
advancement of human happiness”.
Austin
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useless to judge law by a moral or
religious code because these are
subjective measures
Austin
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Each person in society can have their own
interpretation of the law
They will obey those laws they judge good
and disobey those they judge to be bad
Society cannot function in this way
Austin
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Individuals must bend their will to that of
the governing body since the purpose of
the law is to ensure the happiness of the
majority
According to Austin
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No positive law can be unjust, because the
law itself is the measure of what is just or
unjust.
Austin
The acts of individuals are to be tried
against an objective standard of law and
that ethics or morality should play no part
in determining whether a law is good or
bad.
Positive Law
Homework
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Hwk read Roncarelli v. Duplessis [1959]
SCR 121 on p.89 & do ?’s #1-4, p.90