1. Jurisprudence

2. Chapter 3
Philosophy of Law
- Abbreviated!

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

4. Economic survival (Quality of life/Standard of living) ?
(jurisprudence continued) What do you believe to be the main purpose of the law?
Order?
(discussion)
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)
Positive Law (positive law theorists)

6. Natural Law There does exist a moral imperative in the law
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)
Ex. A mother takes care of her newborn.
That we would help those in need.
There does exist a moral imperative in the law

7. Positive Law
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

8. Secularism: separate from religion
This theory or philosophy of law 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  /ˈsɛkyələr/–adjective
Secular
1.of or pertaining to worldly things or to things that are not regarded as religious, spiritual, or sacred; temporal: secular interests.

9. 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.

10. 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.

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

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

13. 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 lives.
Believed in God, urged people to care for the soul over money and indulgence.
Obey the law even in the face of death.

14. 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.
Justice in the state is achieved though law.
Believed that education was the answer to making people ‘good’
(Anyone who really knew what good was, would do good)

15. 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)
Educated to do good (very few)
Ruled by their passions and desires
(majority)

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

17. Thomas Hobbes
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.
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 state of nature, we would live lives that were “solitary, nasty, brutish and short.”
People are greedy and violent
A proponent of positive law
Not an optimistic fellow.

18. John Locke
Tempered (balanced) the extreme pessimism of Hobbes.
Incorporated some natural law theory into things.
If that 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.
Government is formed with the consent of the people and existed to preserve their rights.
Continued…

19. Locke had strong influence on Thomas Jefferson, chief author of the U
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.
Inspired both the French and American revolutions.

20. Jeremy Bentham ( )
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 truly just law provides “the greatest happiness [for] the greatest number” of people. Utilitarianism
John Austin (same as above plus…)
Law should be completely separated from morality.
Every law had to be obeyed, no matter what.
Utilitarianism - Wikipedia, the free encyclopedia

21. Legal Realism
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.
Bias of Judges
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

22. Marxism a theory of law developed by Karl Marx
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 concluded that British law favored the capitalist class by strengthening its power over the working class.
Ex. Making forming labor union a criminal offence.

23. 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.

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

25. 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.

26. Feminist groups claim 3 major ways the law has discriminated against them:
1) Laws that are discriminatory against women
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)

27. Feminism
A social and political theory that states that law is an instrument of oppression and control that men use against women.