1. Philosophies of Law Lecture Date: Monday, November 20
**Lecture notes correspond with pages of textbook

2. 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

3. 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

4. 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

5. 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?

6. 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

7. Aristotle ( 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

8. Cicero ( 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

9. 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.

10. 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

11. Thomas Aquinas ( )
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)

12. Thomas Hobbes ( )
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

13. 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

14. 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

15. Jeremy Bentham ( )
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”

16. 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 ( )
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

17. 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?

18. 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

19. 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