1. Chapter 3 Philosophy of Law

2. Jurisprudence

3. What is ‘jurisprudence’? Jurisprudence is the philosophical interpretation of the nature and purpose of Law. Jurisprudence is the philosophical interpretation of the nature and purpose of Law. It is your idea or beliefs about what the purpose of the law should be. It is your idea or beliefs about what the purpose of the law should be.

4. What do you believe to be the main purpose of the law? Order? Economic survival? (Quality of life/Standard of living) Instill Morality? Dispute resolution?

5. Philosophy is often divided into two main streams or schools of thought: Natural Law (natural Law theorists) Natural Law (natural Law theorists) Positive Law (positive law theorists) Positive Law (positive law theorists)

6. Law Law: A body of enforceable rules governing relationships among individuals and between individuals and their society. Law: A body of enforceable rules governing relationships among individuals and between individuals and their society.

7. Natural Law The theory (idea) that human laws come from eternal (never ending) and unchangeable principles that regulate the world. The theory (idea) that human laws come from eternal (never ending) and unchangeable principles that regulate the world. We become aware of these natural laws through reason. (they do not have to be legislated) We become aware of these natural laws through reason. (they do not have to be legislated) Ex. A mother takes care of her newborn. That we would help those in need. That we would help those in need. There does exist a moral imperative in the law There does exist a moral imperative in the law

8. Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children). Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children).

9. Positive Law Positive Law 1. Law is a body of rules formulated by the state that the citizens are obliged to follow for the good of the state. Ex. traffic laws Paying taxes Paying taxes Not parking in a designated fire route Not parking in a designated fire route

10. Positive Law: The written law of a particular society at a particular point in time. Positive Law: The written law of a particular society at a particular point in time. There is no moral imperative to the law. There is no moral imperative to the law. (no duty to consider moral senses of the time)

11. Legal theorists who present or understand their theories as “positivist”, or as instances of “legal positivism”, take their theories to be opposed to, or at least clearly distinct from, natural law theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at 2395). The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories like his share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken.

12. … Positive law can exist with no natural law. Natural law theory is not separate from positive law.

13. Positive law theorists gained strength in England at a time of widespread political, social and religious upheaval. This period of violence, fear, confusion and ignorance affected the way thinkers of the time viewed the origin and purpose of law. Secularism: separate from religion sec ‧ u ‧ lar / ˈ s ɛ kyələr/–adjective Secular 1. of or pertaining to worldly things or to things that are not regarded as religious, spiritual, or sacred; temporal: secular interests.

14. Moral Absolutism Moral absolutism is the belief that there are absolute standards against which moral questions can be judged, and that certain actions are right or wrong, devoid of the context of the act. "Absolutism" is often philosophically contrasted with moral relativism.absolute standards moral questionsjudgedmoral relativism

15. Moral Relativism Moral Relativism is a belief that moral truths are relative to social, cultural, historical or personal references, and to situational ethics, which holds that the morality of an act depends on the context of the act.socialcultural historicalpersonal situational ethics

16. Between moral absolutism and moral relativism, Between moral absolutism and moral relativism, which would you associate with Natural law and which with positive law? which would you associate with Natural law and which with positive law? Natural Law Positive Law Moral Absolutism ? Moral Relativism ?

17. (Read: Socrates, Plato, Aristotle) Natural Law Theorists – All believe that the law has a moral imperative

18. It is the mark of an educated mind to be able to entertain a thought without accepting it. -Aristotle

19. The two qualities which chiefly inspire regard and affection [Are] that a thing is your own and that it is your only one. -Aristotle

20. At his best, man is the noblest of all animals; separated from law and justice he is the worst. -Aristotle

21. Dignity consists not in possessing honors, but in the consciousness that we deserve them. -Aristotle

22. The educated differ from the uneducated as much as the living from the dead. -Aristotle The roots of education are bitter, but the fruit is sweet. -Aristotle

23. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. -Aristotle

24. We are what we repeatedly do. Excellence, then, is not an act but a habit. We are what we repeatedly do. Excellence, then, is not an act but a habit. -Aristotle -Aristotle

25. It is the mark of an instructed mind to rest satisfied with the degree of precision which the nature of the subject admits and not to seek exactness when only an approximation of the truth is possible. -Aristotle

26. Democracy arose from men's thinking that if they are equal in any respect, they are equal absolutely. -Aristotle

27. Without friends, no one would want to live, even if he had all other goods. -Aristotle Wishing to be friends is quick work, but friendship is a slow- ripening fruit. -Aristotle

28. We give up leisure in order that we may have leisure, just as we go to war in order that we may have peace. -Aristotle

29. This is the reason why mothers are more devoted to their children than fathers: it is that they suffer more in giving them birth and are more certain that they are their own. -Aristotle

30. Plato is dear to me, but dearer still is truth. -Aristotle

31. Wretched, ephemeral race, children of chance and tribulation, why do you force me to tell you the very thing which it would be most profitable for you not to hear? The very best thing is utterly beyond your reach: not to have been born, not to be, to be nothing. However, the second best thing for you is: to die soon.

32. “I count him braver who overcomes his desires than him who overcomes his enemies.” - Aristotle

33. “A state is not a mere society, having a common place, established for the prevention of mutual crime and for the sake of exchange...Political society exists for the sake of noble actions, and not of mere companionship.” -Aristotle

34. “It is the nature of desire not to be satisfied, yet most men live only for the gratification of it.” - Aristotle

35. Evil brings men together. -Aristotle

36. “Piety requires us to honour truth above our friends.” -Aristotle

37. “Even when laws have been written down, they ought not always to remain unaltered.” -Aristotle

38. “Man is by nature a political animal.” -Aristotle

39. “Law is order, and good law is good order.” -Aristotle

40. There are 3 people in a desert. Najam, Nick and Ryan. Najam and Ryan do not know each other, but they both want to murder Nick. Nick does not know that either of the others wants to kill him. Najam attempts to kill Nick by poisoning his water canteen which would kill him almost instantaneously. Ryan, not knowing what Najam had done, steals Nick's water canteen. A few days later… Nick dies of thirst. Who should be charged for the murder of Nick? Who is morally blameworthy?

41. Socrates Used the process of Dialectic Trial Of Socrates p.70-71 The whole purpose of the law is to encourage people to live good, virtuous lives. Believed in a God, urged people to care for the soul over money and indulgence. Obey the law even in the face of death.

42. Plato Humans are social by nature / like political animals Organized society is a natural institution The state did not exist only for economic reasons. Justice in the individual is achieved when the lower powers (needs: food, sex, aggression, passion) are ruled/controlled by your higher powers (intellect) This is achieved through reason. This is achieved through reason. Justice in the state is achieved though law. Believed that education was the answer to making people ‘good’ (His logic: Anyone who really knew what good was, would do good) He believed that all men had the potential to be good.

43. Aristotle Humans are like political animals but set apart by their ability to use reason and to rationalize. By following reason and not their passions, people can reach their potential. Believed that Human ability to reason was a spark of the divine (from God) “If reason is divine, then, in comparison with man, the life according to (reason) is divine in comparison to human life.” Believed that education alone was not enough. We had to be scared of law and punishment to really obey law. Believed that morally, people fall into 3 categories: Born good (very few) Born good (very few) Educated to do good (very few) Educated to do good (very few) Ruled by their passions and desires Ruled by their passions and desires(majority)

44. St.Thomas Aquinas A Christian Philosopher and Professor at the University of Paris. A Christian Philosopher and Professor at the University of Paris. Divided Law into 4 categories: Divided Law into 4 categories: Eternal Law Natural Law Divine Positive Law Human Positive Law Both Natural law Both Positive law

45. Furthermore, Thomas distinguished four kinds of law: eternal, natural, human, and divine. Eternal law is the decree of God that governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason. Natural law, of course, is based on "first principles": “... this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this...”

46. Thomas Hobbes 1588-1679 Witnessed the violence and atrocities of the English civil war. Witnessed the violence and atrocities of the English civil war. Believed that the state of nature was nothing more than war where the strong and intelligent plunder (destroy/abuse) the weak and slow. Believed that the state of nature was nothing more than war where the strong and intelligent plunder (destroy/abuse) the weak and slow. We need a power that we are ‘in awe of’ to keep us in line. We need a power that we are ‘in awe of’ to keep us in line. In the interest of self preservation, we agree to surrender some of our rights to that king or government. In the interest of self preservation, we agree to surrender some of our rights to that king or government. In the state of nature, we would live lives that were “solitary, nasty, brutish and short.” In the state of nature, we would live lives that were “solitary, nasty, brutish and short.” People are greedy and violent People are greedy and violent A positivist A positivist Not an optimistic fellow. Not an optimistic fellow.

47. John Locke 1632-1704 Tempered (balanced) the extreme pessimism of Hobbes. Tempered (balanced) the extreme pessimism of Hobbes. Incorporated some natural law theory into things. Incorporated some natural law theory into things. If the government or king that keeps us in order violated the natural rights of the people  people were justified in rebelling and replacing the unjust government with one that respects their natural rights. If the government or king that keeps us in order violated the natural rights of the people  people were justified in rebelling and replacing the unjust government with one that respects their natural rights. Natural Rights: Life, Liberty (free thought, speech, religion), and Property. Natural Rights: Life, Liberty (free thought, speech, religion), and Property. Government is formed with the consent of the people and existed to preserve their rights. Government is formed with the consent of the people and existed to preserve their rights.Continued…

48. Locke had strong influence on Thomas Jefferson, chief author of the U.S. Declaration of Independence in which Jefferson echoes natural law theory that certain truths are universal and can be concluded through reason : Locke had strong influence on Thomas Jefferson, chief author of the U.S. Declaration of Independence in which Jefferson echoes natural law theory that certain truths are universal and can be concluded through reason : …That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; … John Locke’s combination of natural and positive law would have the greatest influence on modern legal thinking. John Locke’s combination of natural and positive law would have the greatest influence on modern legal thinking. Inspired both the French and American revolutions. Inspired both the French and American revolutions.

49. Jeremy Bentham (1748-1832) Bentham believed that when left to our own devices, we try to achieve maximum pleasure and happiness in our lives. Bentham believed that when left to our own devices, we try to achieve maximum pleasure and happiness in our lives. A law should be evaluated by it’s utility (usefulness) to society as a whole. Basically; A law should be evaluated by it’s utility (usefulness) to society as a whole. Basically; …a truly just law provides “the greatest happiness [for] the greatest number” of people.  Utilitarianism …a truly just law provides “the greatest happiness [for] the greatest number” of people.  Utilitarianism Hedonistic Calculus (a formula) Hedonistic Calculus (a formula) John Austin (same as above plus…) Law should be completely separated from morality. Law should be completely separated from morality. Every law had to be obeyed, no matter what. Every law had to be obeyed, no matter what. …John Stuart Mill …John Stuart Mill

50. EXTRA READING - FOR UNDERSTANGING Modern utilitarianism The 18th and 19th-century British philosophers Jeremy Bentham and John Stuart Mill defended the ethical theory of utilitarianism, according to which we should perform whichever action maximizes the aggregate good. Conjoining hedonism, as a view as to what is good for people, to utilitarianism has the result that all action should be directed toward achieving the greatest total amount of happiness (Hedonic Calculus). Though consistent in their pursuit of happiness, Bentham and Mill’s versions of hedonism differ. There are two somewhat basic schools of thought on hedonism:Jeremy BenthamJohn Stuart Mill utilitarianism Critics of the quantitative approach assert that, generally, "pleasures" do not necessarily share common traits besides the fact that they can be seen as "pleasurable." Critics of the qualitative approach argue that whether one pleasure is higher than another depends on factors other than how pleasurable it is.

51. Noam Chomsky - American linguist and political activist. -He Believes the law primarily serves the purposes of those in power. -He believes there is a co-operation between the elite class of society and the law makers that maintain the status quo and the wealth and power of the elite. -He believes the media plays a significant role by withholding serious information from the public- keeping the masses happy and ill- informed.

52. Legal Realism Shift away from legal theory and focus on what actually happens in the justice system. Shift away from legal theory and focus on what actually happens in the justice system. Sets out to examine the law in a realistic rather than theoretical fashion. Sets out to examine the law in a realistic rather than theoretical fashion. Focus on the bias of Judges Focus on the bias of Judges Legal realism offers a focus on the temperament of individual judges and how their backgrounds might influence their judgments. Legal realism offers a focus on the temperament of individual judges and how their backgrounds might influence their judgments. Legal realism - Wikipedia, the free encyclopedia Legal realism - Wikipedia, the free encyclopedia

53. Marxism A theory of law developed by Karl Marx. A theory of law developed by Karl Marx. based on his economic analysis of English society during the industrial revolution. based on his economic analysis of English society during the industrial revolution. He saw the bulk of the population go from farming to industry and he noticed the unprecedented number of workers in the mills factories and mines and the relatively small size of the capitalist class that controlled these “means of production” He saw the bulk of the population go from farming to industry and he noticed the unprecedented number of workers in the mills factories and mines and the relatively small size of the capitalist class that controlled these “means of production” He concluded that British law favored the capitalist class by strengthening its power over the working class. He concluded that British law favored the capitalist class by strengthening its power over the working class. Ex. Making forming labor union a criminal offence. Ex. Making forming labor union a criminal offence.

54. Marxism An economic and political theory that states that law is an instrument of oppression and control that the ruling classes use against the working classes. An economic and political theory that states that law is an instrument of oppression and control that the ruling classes use against the working classes. (And this should be rectified)

55. Feminist Jurisprudence “Feminism” “Feminism” The theory that law is an instrument of oppression by men against women. The theory that law is an instrument of oppression by men against women. Product of the women's liberation movement of the 60’s Product of the women's liberation movement of the 60’s Challenges that law is gender neutral. Challenges that law is gender neutral.

56. Developed while many laws still oppressed women; - Women not considered “persons” under the law until 1929. -Women's Franchise Act allowed women over 21 to vote was passed in 1918. -Women couldn’t vote in Quebec provincial elections until 1940. -Until 1925 a man could file for divorce on grounds of adultery but women couldn’t. They had to prove desertion.

57. Feminist groups claim 3 major ways the law has discriminated against them: Feminist groups claim 3 major ways the law has discriminated against them: 1) Laws that are discriminatory against women (last slide) 1) Laws that are discriminatory against women (last slide) 2) failure to recognize that women are different from men 2) failure to recognize that women are different from men 3) Systematic bias: the system is designed to keep women out of top positions (government, business) 3) Systematic bias: the system is designed to keep women out of top positions (government, business) “The glass ceiling”

58. Feminism A social and political theory that states that law is an instrument of oppression and control that men use against women. A social and political theory that states that law is an instrument of oppression and control that men use against women. (And this should be rectified)

59. “Brandeis Brief” p.81 Named after Lawyer Louis Brandeis (~1900) Using non-legal social and economic evidence to convince the court of the social consequences of the decision. Do we still do this?

60. Beverly McLachlin p.84 Why was she branded a “radical feminist” by the Canada Family Action Coalition? Why did feminist groups assail (attack) her decision of striking down the “rape shield”?

61. Lon Fuller  Procedural Justice The fairness of the process is the key determinant of the quality of a legal system. Philip Selznick  Restraint of Power The key determinant of the quality of a legal system is whether this is an independent body that can review and restrain power.

62. A Gross Abuse of Legal Power P.89: Roncarelli v. Duplessis 1959 What was (is) the predominant religion in Quebec? Why were about 1000 Jehovah’s Witnesses arrested? Who was Roncarelli and what was his vested interest? Who took away Roncarelli’s liquor licence? Why was this considered a “Gross abuse of legal power?”

63. Positive Law in the Constitution P.90 Canadians are more willing to accept government control (Positive Law – Hobbes, etc.) S.91 of Constitution 1867 gives Federal Government the general power “to make laws for the peace, order, and good government of Canada.” See case: Challenging Wage and Price Controls

64. Challenging Wage and Price Controls p.91 Reference re Anti-inflation Act [1976]

65. You Decide! Trying to Catch the Balcony Rapist p.96

66. Conclusion P.109