1. Beyond Natural and Positive Law
Unit 1 – Heritage of Law
Beyond Natural and Positive Law

2. Disucssion
If you disagreed with the moral basis of a law, would you still obey it?
What makes a law, law?
Why are laws so highly regarded in society?

3. Reviewing the difference between Natural and Positive Law
Natural Law
Vs.
Positive Law
God
The State/Government
Rationalism/justice
The law IS just
Morals
Control
Universal laws
Man made laws
Universal principals
Self preservation/law is order
Born rights
Majority rules
Common good
“General will” the greatest good for the greatest amount of people

4. Natural Law Review Who defines what is moral and what is not?
Is the idea of what is moral changing?
Natural Law address the question, "What gives the law validity?"

5. Natural Law Review
Law is not separate from morality - it is subordinate to morality.
If a law conflicts with morality, morality wins, and the law should be ignored.

6. Socrates

7. Refer to Figure 3.1 on Page 74

8. 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

9. 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
Justinian ( CE, Roman)
Law has two parts:
o the universal laws of nature, oberved by everyone
o civil laws, specific to particular communities

10. Saint Augustine (354 – 430 C.E.):
Divine law
Christian justice will reign supreme
Church has a moral duty and authority to intervene on decisions of government
“The only perfect law is Eternal Law, God’s Law.”

11. The Natural Philosophers Review
St. Thomas Aquinas ( 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)

12. Positive Law Review Recognized human authorities set laws
Why “recognized human authorities”?
Laws are valid when procedures are followed and laws are set in place by the correct authorities.

13. The Positive Philosophers Review
Thomas Hobbes (1588 – 1679)
People agree to surrender rights in exchange for justice from a superior power; collective rights trump & no revolt if disagree
Locke (1632 – 1704)
Positive law in constitution but based on natural law and inalienable individual rights (life, liberty & property) & rebel if government violates

14. The Positive Philosophers Review
Rousseau
(1712 – 1778)
Social contract whereby government can govern according to the general will of the people
Bentham
( )
People try to be happy but law is the best way to achieve the greatest good for the greatest number of people
Austin
(1790 – 1859)
Same as Bentham, except that objective standard of law; ethics and morality don’t determine whether a law is good or bad

15. Mill
(1806 – 1873)
Utilitarianism – the greatest good for the greatest number of people.
Father was a student of Bentham’s.
Laws should serve a utilitarian (or useful) function in society.

16. Review
Activity 7: Theories and Philosophies of Law – OERB

17. Humour Break

18. *Legal Formalism Body of rules Apply law
No creating law or social policy
Precedent

19. *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?

20. *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

21. 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)

22. Marxism Economic Analysis of Law
Karl Marx collaborated with Fredrick Engel on Communist Manifesto, 1848
Advocated for worker’s rights
Wrote Das Kapital

23. Marxism Devastation of the Industrial Revolution
Class struggle between workers and capitalists
Law favoured capitalists
Unions were criminal

24. 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.”

25. Homework
Read Brandeis Brief/Court (1908), p.81 & do ?’s 1-3 on page 81