Philosophies of Law Lecture Date: Monday, November 20 **Lecture notes correspond with pages 85-100 of textbook

Divine Law Formed on the belief of divine intervention: an idea that all law comes from God(s) There are theories that support an idea that the earliest human laws were based on religious doctrine Supporters of divine law believe that the law is God’s will, and that will has been interpreted by humans into legal codes Because laws derived from a divine source are supposedly coming from God, it is believed that they cannot be overruled or changed Human laws that interfere with the laws of God are deemed invalid

Natural Law Socrates started exploring the idea of the nature of law in the 5th century B.C.E. His work inspired Plato and Aristotle who came after him These philosophers focused on the differences between ideas and rules that are common in nature and those that humans create; there is a constant search for the meaning of truth which can be uncovered through questioning In natural law there are boundaries that nature itself creates that be a guide for human laws (for example: birth, death, gravity, ocean tides) In natural law there is a presupposition that humans are essentially good and that goodness is fundamental to our well-being Natural law is assumed to be universal (applies to all humans) This system gives each person a moral responsibility

Positive Law In the 1600s, Thomas Hobbes and Jeremy Bentham rejected the idea of natural law that the Greek philosophers had established; Hobbes and Bentham proposed that law was based on principles of positive law “social law” is a synonym of positive law Positive law states that law and justice are not the same thing, and the law is the mere opinion of whoever happens to be in power at the moment Under this new reasoning, positive law could be based on principles of natural law but did not have to be Hobbes maintained a viewpoint that obedience to the existing law is essential (in order to preserve order). That obedience would ideally be maintained even if it meant “justice” was not done

Discussion In your opinion, and in consideration of today’s society… Which aspects of divine law are valid? Which aspects of natural law are valid? Which aspects of positive law are valid?

Plato (428-348 BCE) Most famous works are Dialogues and The Republic teacher of Aristotle Criticized his contemporary society for being a structure that is only “advantageous to the stronger” Believed that a just person was a reflection of a just society Believed that the correct person to be in charge of a just/fair society would be a “philosopher king” who would be able to administer justice in a thoughtful way that benefitted people who are not equal This ruler would ideally not inherit power, but would be chosen based on achievements, education, and ability to rule In his early writing, Plato expressed that justice should be enforced without laws (because laws were too abstract, general, and equal), however he eventually determined that it would be hard to find an ideal ruler and there was a need for law to avoid corruption

Aristotle (384-322 BCE) Left home at 17 years old to study at the Academy at Athens (became one of Plato’s favourite students) Believed that justice should aspire to equality Believed that human suffering would be solved by the fair sharing of resources Favoured a system of meritocracy (a society in which individuals are rewarded based on their own achievements and on their participation in civic duties) Opposed oligarchy (a form of government where there would be only one ruler from the upper class) Believed that the law should include an element of equity

Cicero (106-43 bce) Roman lawyer who wrote about law and justice during the reign of Julius Caesar Opposed to Caesar’s total control of power, however, Cicero was not involved in Caesar’s murder Adapted the Greek ideals from natural law to introduce these concepts to early Christian and European scholars Cicero established a principle that justice, right, equality, and fairness should underlie all law While Cicero was in agreement with much of Aristotle’s writing, one significant departure is that Cicero did not see total obedience to the state as necessary for a proper life; according to Cicero it was perfectly rational for a citizen to withdraw support from a government that upheld “evil” laws

Justinian (483-565 ce) Roman philosopher and emperor His writings influenced legal thinking Because of his position, Justinian was able to put a codified version of Roman law in place (Justinian’s code) In Justinian’s belief, there were two parts to the law: a) universal laws of nature (for all people to uphold) and b) civil laws (which could differ from community to community) Under Justinian’s interpretation of natural law, all people are born free.

Saint Augustine (354-430 ce) Christian bishop Lived in Hippo, Algeria Strong believer in divine law; held the belief that God would punish evil and reward good Ideally, according to Saint Augustine, true justice would only be possible when God returned to this world and Christian justice ruled (“City of God”) Saint Augustine believed that the Church was morally obligated to act as a check on state abusesthe Church should be able to veto actions that were in violation of God’s law

Thomas Aquinas (1225-1274) Part of a wealthy family; studied liberal arts at the University of Naples Instead, Aquinas shocked his family by becoming a Dominican friar with a vow of poverty Studied theology at the University of Paris, became an expert in philosophy and the works of Aristotle Believed that the main objective of any law-maker is to lead people to virtue (“good is to be done and pursued, and evil is to be avoided”) Believed that a law enforced by a tyrant would not actually be lawful (perversion of the law instead)

Thomas Hobbes (1588-1679) Studied at Oxford University in London; pursued studies in math and philosophy Wrote Leviathan in 1651 (his best-known work) Hobbes was an atheist and a Republican Believed that there was a lot of human suffering, and that security and the preservation of peace were very fundamental to political and social justice Believed that human laws were much more important than natural law Deemed a superior power (a government) necessary to enact laws and regulate society Believed that justice depends largely on the population’s obedience to civil law

John Locke (1632-1704) Also studied at Oxford University Wrote Two Treatises of Civil Government (very politically influential) Believed that individual rights were more important than collective rights Believed that legislative power should be subject to reasonable natural law Wrote about the fundamental individual rights to life, liberty, and property Advocated for limits on the power of the state (for example, he did not believe that the government should distribute resources  people should be individually free to accumulate wealth/property) Believed that government had one purpose only: to protect individuals from acts of others seeking to interfere with their freedom His theory directly led to the French and American revolutions and is foundational for Canadian constitutional law

Jean-Jacques Rousseau (1712-1778) French philosopher from Geneva Very poor childhood/adolescence Travelled to Venice at 18 years old and spent time with influential literary scholars Rousseau’s most important works are a) The Social Contract (a radical criticism of society) and b) Discourse on the Origin of Inequality (a description of a good and just society) Argues that civilization corrupted humans (especially structures that encourage self-interest) However, Rousseau also recognizes the necessity of having a governing state Believed that a social contract between citizens and the state would provide a solution Ideally, the social contract would be mutually beneficial and citizens would have the power to remove a state that was not serving the “general will” of all One unclear point was about the “general will” that Rousseau is referring to

Jeremy Bentham (1748-1832) English philosopher; first person to support utilitarianism (theory that laws should be based on what is practical and realistic, not idealized morals) His views were influenced by the Industrial Revolution He did not support any aspect of natural law Believed that laws could be assessed based on a measure of how it benefits individuals and the community Explains law a form of social control that should have nothing to do with morality Law as a practical means for ensuring “the greatest good for the greatest number”

John Austin (1790-1859) John Stuart Mill (1806-1873) English philosopher, influenced by Bentham Believed that government and law should facilitate “the greatest possible advancement of human happiness” Wrote about the concepts of justice and law being separate and distinct John Stuart Mill (1806-1873) Also influenced by utilitarianism and Bentham Believed that laws should serve a useful function in society (“Actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness” Mill was not only referring to emotional happiness, but to pleasures of art, intellect, music, literature, and alturism

Discussion According to Thomas Aquinas, the first precept of law is that “good is to be done and pursued and evil is to be avoided” Talk to the people beside you. What arguments could you make against such a view? What arguments could you make in favour of this view?

Jurisprudence (noun) The science of law Sometimes referred to as “the philosophy of law” The study of the structure of the legal system, one of whose functions is to determine how legal rules apply to new or doubtful cases

Contemporary legal theories Read together from the textbook – pages 96-98 Contemporary theorists Read independently – bottom of page 98 – page 100 Answer the five questions on page 100 and we will take them up as a group