Chapter 1 – Heritage of Law Positive Law

Agenda 1. Positive Law 2. Roncarelli v. Duplessis

Learning Goal for Today By the end of the lesson, students will be able to explain the main philosophers of positive law

Expectations 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 Development of positive law theory in England followed a period of widespread religious, political and social upheavel Civil war Protestant v. Catholic Cromwell v. King (beheading)

Postive Law 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) 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 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 Therefore, security and preservation of peace were fundamental to polictical and social justice.

Hobbes 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 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 People need government to legislate or enact laws in order to regulate their relationships with one another.

Hobbes 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 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 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) tries to soften the extreme pessimism of Hobbes by incorporating aspects of natural law into his theory

Locke Did not believe collective rights were more important than individual rights.

John Locke 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 self-preservation but that the law should restrain people from doing hurt to one another.”

John Locke 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 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 Law protects individuals against the arbitrary acts of others who would interfere with their freedom

John Locke 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 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 We recognize the necessity of the state to govern, advocate the idea of a contract between citizens and the state

Rousseau Referred to this agreement as the “Social Contract” Mutually beneficial relationship in which the state could be removed if the people will it.

Rousseau Therefore, the state should govern according to what he referred to as the “general will of the people”

Rousseau Difficulty lay in determining exactly what he meant by the ‘general will’ of the people

Jeremy Bentham (1748 – 1832) Views on law were formed mainly in reaction to the Industrial Revolution His primary concern was legal and social reform

Bentham Believed that people, left to their own devices, tried to achieve the maximum amount of pleasure and happiness in their lives

Bentham 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, 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 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 useless to judge law by a moral or religious code because these are subjective measures

Austin 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 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 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 Hwk read Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-4, p.90