THEORIES AND CONCEPTS OF LAW Unit 1

NATURAL LAW and POSITIVE LAW Natural Law is the philosophical basis of law. Positive Law is the working of the law through the authority of the state.

Natural Law What do we mean by the term “Natural Law”?

Natural Law… Socrates Morality is an important part of natural law. Laws are meant to help people to live the right way; they help people become better people.

Natural Law Plato Harmony between the individual and society are important components of morality and thus natural law. Human laws must be based on knowledge of the eternal laws that rule the universe. Education produces good behaviour.

Natural Law… Aristotle People are not all good, and education alone cannot ensure that people will be good. Only laws can ensure the good behaviour of all people. Using reason, humans can develop their greatest potential within the state.

Natural Law… St. Thomas Aquinas Natural law is the eternal law (from God) that can be known by humans. Human law is the “ordinance of reason for the common good”, and is made public by society’s ruler. This ruler is responsible for the “care” of the community. It is published so that everyone knows it (made public).

What was the significance of… Thomas Hobbes All people are prone to violence and disorder; this is their natural state. People did not form governments to recognize and defend their natural-law rights, but to ensure law and order through strong leadership.

What was the significance of… John Locke People have “natural rights”; which include “life, liberty, and property” The law of the state must protect these fundamental rights. If the ruler violated the natural rights of the people, the people were justified in rebelling against the ruler and replacing the government with one that respected these rights.

What was the significance of… Jeremy Bentham’s Utilitarianism: Laws can be judged based on their “utility to society” Just laws provide “the greatest happiness for the greatest number” of people.

What was the significance of… Karl Marx Focused on the failure of the legal system to treat society equally. Since the ruling class controls the formation of the law, they use it to suppress the working class. This idea can be extended to describe the inequalities of the law as applied to minority groups, as well as “feminine jurisprudence”.

What is the significance of… Feminine Jurisprudence The theory that the law is used as an instrument of oppression by men against women. (example: voting)

Procedural Justice Restraint of Power The idea that a valid law must include procedures that are “fair and workable” (can be applied equally?) Restraint of Power Justice depends on there being an independent body or branch of government that can challenge, review, and limit the laws made by the ruling power (Courts?).

Application to Canadian Law The “Rule of Law” means that all laws and procedures in Canada must be applied equally and fairly to all members of society. The courts, particularly the Supreme Court of Canada, are responsible for acting as a “restraining influence” on the law making power of Parliament. The Charter of Rights and Freedoms protects the rights of individuals and minorities, but these rights can be limited for the “common good”.

Theories of Law Law Theories Source of Law Purpose of Law Role of the State Role of the Citizen Natural Positive Utilitarian Legal Realist Marxist Feminist