Theories and Concepts of Law continued Positive Law Law is simply what political authorities or lawmakers command It is based upon human reason and authority Grew as a reaction to the power of the Roman Catholic Church during the Reformation King Henry VIII of England began the separation of Church and State The only real morality is in obedience to law

The Players & their Philosophies

Thomas Hobbes England Obedience of human law is the only way to protect man from his own natural selfishness and brutality. Natural law was simply used to support the authority and maintain the power of tyrants who claimed power was rooted in eternal law.

Hobbes continued… The weakness of natural law lay in its invitation to individuals to define content according to their own morals and views Without a governing body creating and enforcing laws, people would become violent and lawless No tolerance of civil disobedience except to preserve one’s own life

Thomas Hobbes’ Social Contract Theory Man’s nature does not require a governing state, however, a better life would be assured through existence of an outside governing state. Although he felt it was unnatural for man to put himself under control of others, thought it was rational to have government

Social Contract Theory Continued The idea of a social contract is premised on the notion that an individual’s liberty and property are better secured if we band ourselves together than if we are left alone, each to our own devices.

Social Contract Theory Continued Given a choice, a typical person would: ◦ Give up certain rights in exchange for peace and security ◦ Put himself under government and follow its rules, fairly made and enforced This arrangement is the nature of a contract – an exchange: Citizens provide obedience and compliance in exchange for greater security and liberty

“And law was brought into the world for nothing else, but to limit the natural liberty of particular men, in such manner, as they might not hurt but assist one another, and join against a common enemy” ~ Thomas Hobbes, Leviathan

Question How might social contract theory explain the existence of gangs?

John Locke England Often referred to as “the philosopher of freedom” Developed a less pessimistic view of society that reintroduced elements of Natural Law into Positive Law View was that God created man and we are, in effect God’s property. Thus, crimes like murder violate the divine purpose and is wrong.

John Locke’s Perspective on Social Contract Theory Citizens can better secure their liberty and property by giving up a little of each to a central authority. However, Locke clearly felt that the power of the state should be limited.

Locke continued… Saw law-making and law-abiding as a give- and-take relationship Governments were formed through the consent of society and in return, would protect individuals natural rights (Life, liberty and property) Sole purpose of state was to protect individuals against those who may interfere with their freedom

Locke continued… The state should not interfere with personal freedoms of its citizens Huge advocate for constitutional law as it defines the relationship between the state and its citizens and outlines the state’s rights, responsibilities, and limits on power Impact of Locke: Declaration of Independence, American and French Revolutions

Jeremy Bentham England Founder of the theory of UTILITARIANISM, which claimed that since humans are motivated by the desire to achieve pleasure and avoid pain, laws should provide the greatest good for the greatest number.

Bentham continued… A system of law has the following requirements: i.Authoritative body ii.Legal commands iii.An imposed duty or obedience; and iv.Enforcement through penalties

John Austin England Good friend of Bentham, influenced by Utilitarianism Legal Positivism: asserts that it is both possible and valuable to have a morally neutral theory of law. Did not believe in placing law and morality together (reflective of scientific attitudes of the time)

Austin continued… The law is: i.A set of commands issued by the sovereign ii.Commands are backed up with punishments iii.A sovereign is anyone who is habitually obeyed by the people For laws to be obeyed, a governing body traditionally respected, imposition of duty and obedience and enforcement through threat of penalties were necessary

Legal Realism U.S.A. 19 th Century Belief that theory and philosophy of law are impractical, given that judges interpret and apply laws differently in real-life cases Law is a prediction of what the courts will decide Court hierarchy is the attempt to deal with ideas found in Legal Realism

Karl Marx Observed the class struggle during the Industrial Revolution (large number of workers and small number of capitalists who controlled everything). Marxism had to do with the inequalities in society. Law was a tool for maximizing the interests of the ruling class and controlling the working class. In other words, law was an instrument of oppression.

Feminist Jurisprudence The theory that law is an instrument of oppression by men against women. The law needs to be objective and neutral in its application so that everybody is treated equally under it. E.g. Women only became ‘persons’ under the law in 1929 and got the vote in 1918 (Quebec 1940).