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

2. Agenda 1. Beyond Natural and Positive Law lesson 1. Beyond Natural and Positive Law lesson 2. Take up Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-4, p.90 2. Take up Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-4, p.90 3. Hwk read Brandeis Brief/Court (1908), p.81 & do ?’s 1-3 on page 81 3. Hwk read Brandeis Brief/Court (1908), p.81 & do ?’s 1-3 on page 81

3. Learning Goal for Today By the end of the lesson, students will be able to analyze the views of historical and contemporary philosophers of law By the end of the lesson, students will be able to analyze the views of historical and contemporary philosophers of law

4. Expectations Students will: analyze the views of historical and contemporary philosophers of law Students will: analyze the views of historical and contemporary philosophers of law Students will: evaluate the strengths and weaknesses of different theories of law Students will: evaluate the strengths and weaknesses of different theories of law CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society

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

6. 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 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 some people born good, others educated to be good, but majority require law to make them good; also, law had a moral purpose

7. 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 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

8. The Natural Philosophers Review St. Thomas Aquinas (1225 - 1274 - influence by Aristotle) - 4 kinds of law: (1) eternal (God’s 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) (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) & (3) divine positive law (scripture) & (4) human positive law (reasoned, common good, made by ruler & published) (4) human positive law (reasoned, common good, made by ruler & published)

9. 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

10. The Positive Philosophers Review Rousseau (1712 – 1778) Social contract whereby government can govern according to the general will of the people Bentham(1748-1832) 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

11. Humour Break

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

13. *Legal Realism Law is often uncertain and vague Law is often uncertain and vague Judges become the real authors of the law Judges become the real authors of the law Law is determined by what actually happens in court Law is determined by what actually happens in court Bias? Bias?

14. *Feminist Jurisprudence Theory that law is an instrument of oppression by men against women 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 Theory challenges the idea that the law is objective and neutral in its application and that everyone is treated equally under the law

15. Feminist Jurisprudence Believes this differential treatment takes three forms: Believes this differential treatment takes three forms: Historical (Person’s case 1929, Vote 1940, Old Adultery laws – needed desertion also) Historical (Person’s case 1929, Vote 1940, Old Adultery laws – needed desertion also) Current failures (mat leave, equal pay) Current failures (mat leave, equal pay) Institutional (glass ceiling) Institutional (glass ceiling)

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

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

18. 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.”

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