Download Lsn_Baum_Feb13_BeyoNPLa_CLN4UI

Unit 1 – Heritage of Law
Beyond Natural and Positive Law
Agenda



1. Beyond Natural and Positive Law lesson
2. Take up Roncarelli v. Duplessis [1959]
SCR 121 on p.89 & do ?’s #1-4, p.90
3. Hwk read Brandeis Brief/Court (1908),
p.81 & do ?’s 1-3 on page 81
Learning Goal for Today

By the end of the lesson, students will be
able to analyze the views of historical and
contemporary philosophers of law
Expectations



Students will: analyze the views of
historical and contemporary philosophers
of law
Students will: evaluate the strengths and
weaknesses of different theories of law
CGE7e – witnesses Catholic social teaching
by promoting equality, democracy, and
solidarity for a just, peaceful and
compassionate society
Reviewing the difference between
Natural and Positive Law
Natural Law
Vs.
Positive Law
God
Vs.
The State/Government
Rationalism/justice
Morals
Vs.
Vs.
The law IS just
Control
Universal laws
Vs.
Man made laws
Universal principals
Vs.
Self preservation/law is
order
Born rights
Vs.
Majority rules
Common good
Vs.
“General will” the greatest good
for the greatest amount of people
The Natural Philosophers Review
Plato (student of Socrates)
 people had to be educated to know what was
good but then would do good; also, law had a
moral purpose
Aristotle (384 – 322 BCE, student of Plato)
 some people born good, others educated to be
good, but majority require law to make them
good; also, law had a moral purpose
The Natural Philosphers Review
Cicero (106 – 43 BCE, Roman)
 Natural laws are unchanging and superior;
Roman law had a higher purpose as morally &
legally superior to all others – laws could be set
aside if they conflicted with natural law
The Natural Philosophers Review
St. Thomas Aquinas (1225 - 1274 - influence by
Aristotle) - 4 kinds of law:
(1) eternal (God’s law)
(2) natural (which can be known by humans – ex.
parents care for kids, preserve own life, don’t
harm others & assist poor, sick & elderly)
(3) divine positive law (scripture) &
(4) human positive law (reasoned, common good,
made by ruler & published)
The Positive Philosophers Review
Thomas Hobbes People agree to surrender rights
(1588 – 1679) in exchange for justice from a
superior power; collective rights
trump & no revolt if disagree
Locke (1632 – Positive law in constitution but
1704)
based on natural law and
inalienable individual rights (life,
liberty & property) & rebel if
government violates
The Positive Philosophers Review
Rousseau
(1712 –
1778)
Bentham
(1748-1832)
Austin
(1790 –
1859)
Social contract whereby
government can govern according
to the general will of the people
People try to be happy but law is
the best way to achieve the
greatest good for the greatest
number of people
Same as Bentham, except that
objective standard of law; ethics
and morality don’t determine
whether a law is good or bad
Humour Break
*Legal Formalism




Body of rules
Apply law
No creating law or social policy
Precedent
*Legal Realism




Law is often uncertain and vague
Judges become the real authors of the law
Law is determined by what actually
happens in court
Bias?
*Feminist Jurisprudence


Theory that law is an instrument of
oppression by men against women
Theory challenges the idea that the law is
objective and neutral in its application and
that everyone is treated equally under the
law
Feminist Jurisprudence

Believes this differential treatment takes
three forms:



Historical (Person’s case 1929, Vote 1940, Old
Adultery laws – needed desertion also)
Current failures (mat leave, equal pay)
Institutional (glass ceiling)
Marxism
Economic Analysis of Law



Karl Marx collaborated
with Fredrick Engel on
Communist Manifesto,
1848
Advocated for
worker’s rights
Wrote Das Kapital
Marxism

Devastation of the Industrial Revolution

Class struggle between workers and
capitalists
Law favoured capitalists

Unions were criminal

Marxism
Don’t copy…
“Law is simply class rule. The ‘ruling class’
controls the formation of law.”
“Law is an instrument used for maximizing
ruling class interests in society and
controlling the working class.”
Homework

Read Brandeis Brief/Court (1908), p.81 &
do ?’s 1-3 on page 81