Chapter 3Chapter 3

Philosophy of Law

JurisprudenceJurisprudence

What is What is ‘jurisprudence’?‘jurisprudence’?

• JurisprudenceJurisprudence is is the the philosophical interpretation of the philosophical interpretation of the nature and purpose of Law.  nature and purpose of Law.  

• It is your idea or beliefs about It is your idea or beliefs about what the purpose of the law what the purpose of the law should be.should be.

What do you What do you believebelieve to be the main purpose to be the main purpose of the law?of the law?

Order?Order?

Economic survival? Economic survival? (Quality of life/Standard of living)(Quality of life/Standard of living)

Instill Morality?Instill Morality?

Dispute resolution?Dispute resolution?

Philosophy is often divided into Philosophy is often divided into

two main streamstwo main streams or or schools of thoughtschools of thought::

Natural LawNatural Law (natural Law theorists)(natural Law theorists)

Positive LawPositive Law (positive law theorists)(positive law theorists)

LawLaw

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

Natural LawNatural Law

The theory (idea) that human laws come from The theory (idea) that human laws come from eternaleternal (never ending) and (never ending) and unchangeable unchangeable principles principles that regulate the world.that regulate the world.

We become aware of these natural laws through We become aware of these natural laws through reason. (they do not have to be legislated)reason. (they do not have to be legislated)

Ex. A mother takes care of her newborn.Ex. A mother takes care of her newborn. That we would help those in need.That we would help those in need.

There There doesdoes exist a moral imperative in the exist a moral imperative in the lawlaw

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

Positive LawPositive Law

1.1. Law is a body of rules formulated by the state that the citizens are Law is a body of rules formulated by the state that the citizens are obliged to follow for the good of the state.obliged to follow for the good of the state.

Ex. traffic lawsEx. traffic laws

Paying taxesPaying taxes

Not parking in a designated fire routeNot parking in a designated fire route

Positive Law: Positive Law: The written law The written law of a particular society at a of a particular society at a particular point in time. particular point in time.

There is no moral imperative to There is no moral imperative to the law.the law.

(no duty to consider moral (no duty to consider moral senses of the time)senses of the time)

Legal theorists who present or understand their theories Legal theorists who present or understand their theories as “positivist”, or as instances of “legal positivism”, as “positivist”, or as instances of “legal positivism”, take their theories to be opposed to, or at least clearly take their theories to be opposed to, or at least clearly distinct from, natural law theory. distinct from, natural law theory.

Natural law theorists, on the other hand, did not Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at distinct from, legal positivism (contra Soper 1992 at 2395). 2395).

The term “positive law” was put into wide philosophical The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories circulation first by Aquinas, and natural law theories like his share, or at least make no effort to deny, many like his share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken. the bare thesis that natural law theories are mistaken.

…

•Positive law can exist with no natural law.

•Natural law theory is not separate from positive law.

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  /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.

Moral AbsolutismMoral 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.

Moral RelativismMoral 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.

Between Between moral absolutismmoral absolutism and and moral relativismmoral relativism, ,

which would you associate with which would you associate with Natural law and which with positive Natural law and which with positive law?law?

Natural Law

Positive Law

Moral Absolutism ?

Moral Relativism ?

(Read: Socrates, Plato, (Read: Socrates, Plato, Aristotle)Aristotle)

Natural Law Theorists –

All believe that the law has a moral imperative

It is the mark of an It is the mark of an educated mind to be able to educated mind to be able to entertain a thought without entertain a thought without

accepting it.accepting it.

-Aristotle -Aristotle

The two qualities which The two qualities which chiefly inspire regard and chiefly inspire regard and affection [Are] that a thing affection [Are] that a thing is your own and that it is is your own and that it is

your only one. your only one. -Aristotle-Aristotle

At his best, man is the At his best, man is the noblest of all animals; noblest of all animals;

separated from law and separated from law and justice he is the worst. justice he is the worst.

-Aristotle-Aristotle

Dignity consists not in Dignity consists not in possessing honors, but in possessing honors, but in the consciousness that we the consciousness that we

deserve them. deserve them. -Aristotle-Aristotle

The educated differ from The educated differ from the uneducated as much as the uneducated as much as the living from the dead. the living from the dead.

-Aristotle-Aristotle

The roots of education are The roots of education are bitter, but the fruit is sweet. bitter, but the fruit is sweet.

-Aristotle-Aristotle

We do not act rightly We do not act rightly because we have virtue or because we have virtue or excellence, but we rather excellence, but we rather have those because we have those because we

have acted rightly. have acted rightly. -Aristotle-Aristotle

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

-Aristotle-Aristotle

It is the mark of an It is the mark of an instructed mind to rest instructed mind to rest

satisfied with the degree of satisfied with the degree of precision which the nature precision which the nature of the subject admits and of the subject admits and

not to seek exactness when not to seek exactness when only an approximation of only an approximation of

the truth is possible. the truth is possible. -Aristotle-Aristotle

Democracy arose from Democracy arose from men's thinking that if they men's thinking that if they are equal in any respect, are equal in any respect,

they are equal absolutely. they are equal absolutely. -Aristotle-Aristotle

Without friends, no one Without friends, no one would want to live, even if would want to live, even if

he had all other goods. he had all other goods. -Aristotle-Aristotle

Wishing to be friends is Wishing to be friends is quick work, but quick work, but friendshipfriendship is is

a slow-ripening fruit. a slow-ripening fruit. -Aristotle-Aristotle

We give up leisure in order We give up leisure in order that we may have leisure, that we may have leisure,

just as we go to war in order just as we go to war in order that we may have peace. that we may have peace.

-Aristotle-Aristotle

This is the reason why This is the reason why mothers are more devoted mothers are more devoted

to their children than to their children than fathers: it is that they suffer fathers: it is that they suffer more in giving them birth more in giving them birth and are more certain that and are more certain that

they are their own. they are their own. -Aristotle-Aristotle

Plato is dear to me, but Plato is dear to me, but dearer still is truth. dearer still is truth.

-Aristotle-Aristotle

Wretched, ephemeral race, Wretched, ephemeral race, children of chance and children of chance and

tribulation, why do you force tribulation, why do you force me to tell you the very thing me to tell you the very thing

which it would be most which it would be most profitable for you not to hear? profitable for you not to hear? The very best thing is utterly The very best thing is utterly

beyond your reach: not to have beyond your reach: not to have been born, not to be, to be been born, not to be, to be

nothing. However, the second nothing. However, the second best thing for you is: to die best thing for you is: to die

soon.soon.

““I count him braver who I count him braver who overcomes his desires than overcomes his desires than

him who overcomes his him who overcomes his enemies.” -Aristotleenemies.” -Aristotle

““A state is not a mere A state is not a mere society, having a common society, having a common place, established for the place, established for the

prevention of mutual crime prevention of mutual crime and for the sake of and for the sake of

exchange...Political society exchange...Political society exists for the sake of noble exists for the sake of noble

actions, and not of mere actions, and not of mere companionship.” companionship.”

-Aristotle-Aristotle

““It is the nature of desire It is the nature of desire not to be satisfied, yet most not to be satisfied, yet most

men live only for the men live only for the gratification of it.” -Aristotlegratification of it.” -Aristotle

Evil brings men together.Evil brings men together.

-Aristotle-Aristotle

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

-Aristotle-Aristotle

““Even when laws have been Even when laws have been written down, they ought written down, they ought

not always to remain not always to remain unaltered.” -Aristotleunaltered.” -Aristotle

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

““Law is order, and good law Law is order, and good law is good order.” is good order.”

-Aristotle-Aristotle

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?

SocratesSocrates

Used the process of DialecticUsed the process of Dialectic

Trial Of Socrates p.70-71Trial Of Socrates p.70-71

The whole purpose of the law is to encourage The whole purpose of the law is to encourage people to live good, virtuous lives.people to live good, virtuous lives.

Believed in a God, urged people to care for the soul Believed in a God, urged people to care for the soul over money and indulgence.over money and indulgence.

Obey the law even in the face of death.Obey the law even in the face of death.

PlatoPlatoHumans are social by nature / like political animalsHumans are social by nature / like political animals

Organized society is a natural institutionOrganized society is a natural institution

The state did not exist only for economic reasons.The state did not exist only for economic reasons.

Justice in the individualJustice in the individual is achieved when the lower is achieved when the lower powers (needs: food, sex, aggression, passion) are powers (needs: food, sex, aggression, passion) are ruled/controlled by your higher powers (intellect)ruled/controlled by your higher powers (intellect)This is achieved through reason.This is achieved through reason.

Justice in the stateJustice in the state is achieved though law. is achieved though law.

Believed that education was the answer to making Believed that education was the answer to making people ‘good’people ‘good’(His logic: Anyone who really knew what good was, would do good)(His logic: Anyone who really knew what good was, would do good)

He believed that all men had the potential to be good.He believed that all men had the potential to be good.

AristotleAristotleHumans are like political animals but set apart by their ability Humans are like political animals but set apart by their ability to use reason and to rationalize.to use reason and to rationalize.

By following reason and not their passions, people can reach By following reason and not their passions, people can reach their potential.their potential.

Believed that Human ability to reason was a spark of the Believed that Human ability to reason was a spark of the divine (from God)divine (from God)

““If reason is divine, then, in comparison with man, the If reason is divine, then, in comparison with man, the life according to (reason) is divine in comparison to life according to (reason) is divine in comparison to human life.”human life.”

Believed that education alone was not enough. We had to be Believed that education alone was not enough. We had to be scared of law and punishment to really obey law.scared of law and punishment to really obey law.

Believed that morally, people fall into 3 categories: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)(majority)

St.Thomas AquinasSt.Thomas Aquinas A Christian Philosopher and Professor at the A Christian Philosopher and Professor at the

University of Paris.University of Paris. Divided Law into 4 categories:Divided Law into 4 categories:

Eternal LawEternal LawNatural Law Natural Law Divine Positive LawDivine Positive LawHuman Positive LawHuman Positive Law

Both Natural law

Both Positive law

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 . ..”

Thomas Hobbes 1588-1679Thomas Hobbes 1588-1679 Witnessed the violence and atrocities of the English civil Witnessed the violence and atrocities of the English civil

war.war. Believed that the state of nature was nothing more than Believed that the state of nature was nothing more than

war where the strong and intelligent plunder war where the strong and intelligent plunder (destroy/abuse) the weak and slow.(destroy/abuse) the weak and slow.

We need a power that we are ‘in awe of’ to keep us in We need a power that we are ‘in awe of’ to keep us in line.line.

In the interest of self preservation, we agree to In the interest of self preservation, we agree to surrender some of our rights to that king or government.surrender some of our rights to that king or government.

In the state of nature, we would live lives that were In the state of nature, we would live lives that were “solitary, nasty, brutish and short.” “solitary, nasty, brutish and short.”

People are greedy and violentPeople are greedy and violent A positivistA positivist Not an optimistic fellow.Not an optimistic fellow.

John Locke 1632-1704John Locke 1632-1704 Tempered (balanced) the extreme pessimism Tempered (balanced) the extreme pessimism of Hobbes.of Hobbes.

Incorporated some natural law theory into Incorporated some natural law theory into things.things.

If the government or king that keeps us in If the government or king that keeps us in order violated the natural rights of the order violated the natural rights of the peoplepeople people were justified in rebelling people were justified in rebelling and replacing the unjust government with and replacing the unjust government with one that respects their natural rights.one that respects their natural rights.

Natural Rights: Natural Rights: Life, LibertyLife, Liberty (free thought, (free thought, speech, religion), speech, religion), and and Property.Property.

Government is formed with the consent of the Government is formed with the consent of the people people and existed to preserve their rightsand existed to preserve their rights..

Continued…Continued…

Locke had strong influence on Thomas Jefferson, chief Locke had strong influence on Thomas Jefferson, chief author of the U.S. Declaration of Independence in author of the U.S. Declaration of Independence in which Jefferson echoes natural law theory that certain which Jefferson echoes natural law theory that certain truths are universal and can be concluded through truths are universal and can be concluded through reasonreason::

……That all men are created equal; that That all men are created equal; that they are endowed by their Creator with they are endowed by their Creator with certain inalienable rights; that among certain inalienable rights; that among these are life, liberty, and the pursuit of these are life, liberty, and the pursuit of happiness; …happiness; …

John Locke’s combination of natural and positive law John Locke’s combination of natural and positive law would have the greatest influence on modern legal would have the greatest influence on modern legal thinking.thinking.

Inspired both the French and American revolutions.Inspired both the French and American revolutions.

Jeremy Bentham (1748-Jeremy Bentham (1748-1832)1832)

Bentham believed that when left to our own devices, Bentham believed that when left to our own devices, we try to achieve maximum pleasure and happiness we try to achieve maximum pleasure and happiness in our lives.in our lives.

A law should be evaluated by it’s utility (usefulness) A law should be evaluated by it’s utility (usefulness) to society as a whole. Basically;to society as a whole. Basically;

……a truly just law provides “the greatest happiness a truly just law provides “the greatest happiness [for] the greatest number” of people. [for] the greatest number” of people. UtilitarianismUtilitarianism

Hedonistic Calculus (a formula)Hedonistic Calculus (a formula)

John Austin (same as above plus…)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 MillJohn Stuart Mill

• 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:

• 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.

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.

Legal Realism Legal Realism

Shift away from legal theory and focus on Shift away from legal theory and focus on what actually happens in the justice system. what actually happens in the justice system.

Sets out to examine the law Sets out to examine the law in a realistic in a realistic rather than theoretical fashion. rather than theoretical fashion.

Focus on the bias of Judges Focus on the bias of Judges

Legal realism offers a focus on the Legal realism offers a focus on the temperament of individual judges and how temperament of individual judges and how their backgrounds might influence their their backgrounds might influence their judgments.judgments.

Legal realism - Wikipedia, the free encyclopedia

MarxismMarxism A theory of law developed by A theory of law developed by Karl Marx.Karl Marx. based on his economic analysis of English society based on his economic analysis of English society

during the industrial revolution. during the industrial revolution. He saw the bulk of the population go from He saw the bulk of the population go from

farming to industry and he noticed the farming to industry and he noticed the unprecedented number of workers in the mills unprecedented number of workers in the mills factories and mines and the relatively small size factories and mines and the relatively small size of the capitalist class that controlled these of the capitalist class that controlled these “means of production”“means of production”

He concluded that British law favored the He concluded that British law favored the

capitalist class by strengthening its power over capitalist class by strengthening its power over the working class.the working class.

Ex. Making forming labor union a criminal offence.Ex. Making forming labor union a criminal offence.

MarxismMarxism

An economic and political An economic and political theory that states that law is theory that states that law is an instrument of oppression an instrument of oppression and control that the ruling and control that the ruling

classes use against the classes use against the working classes.working classes.

(And this should be rectified)(And this should be rectified)

Feminist JurisprudenceFeminist Jurisprudence ““Feminism”Feminism”

The theory that law is an instrument The theory that law is an instrument of oppression by men against of oppression by men against women.women.

Product of the women's liberation Product of the women's liberation movement of the 60’smovement of the 60’s

Challenges that law is gender Challenges that law is gender neutral.neutral.

Developed while many laws Developed while many laws still oppressed women;still oppressed women;

--Women not considered “persons” Women not considered “persons” under the law until 1929.under the law until 1929.-Women's Franchise Act allowed -Women's Franchise Act allowed women over 21 to vote was passed in women over 21 to vote was passed in 1918.1918.-Women couldn’t vote in -Women couldn’t vote in Quebec Quebec provincial elections until 1940.provincial elections until 1940.-Until 1925 a man could file for divorce -Until 1925 a man could file for divorce on grounds of adultery but women on grounds of adultery but women couldn’t. They had to prove desertion.couldn’t. They had to prove desertion.

Feminist groups claim 3 major Feminist groups claim 3 major ways the law has discriminated ways the law has discriminated against them:against them:

1)1) Laws that are discriminatory against Laws that are discriminatory against women women (last slide)(last slide)

2) failure to recognize that women are 2) failure to recognize that women are differentdifferent from menfrom men

3) Systematic bias: the system is designed 3) Systematic bias: the system is designed to to keep women out of top positions keep women out of top positions (government, business)(government, business)

““The glass ceiling”The glass ceiling”

FeminismFeminism

A social and political theory A social and political theory that states that law is an that states that law is an

instrument of oppression and instrument of oppression and control that men use against control that men use against

women.women.

(And this should be rectified)(And this should be rectified)

“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?

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”?

• 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.

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?”

Positive Law in the ConstitutionP.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

Challenging Wage and Price Controls p.91

• Reference re Anti-inflation Act [1976]

You Decide!

• Trying to Catch the Balcony Rapist p.96

Conclusion• P.109