Presentation Transcript

1. THE PHILOSOPHY OF LAW
2. Philosophies of Law NATURAL LAW POSITIVE LAW Theory that law is a body of rules formulated by the state, and that citizens are obliged to obey the law for the good of the state as a whole Thomas Hobbes Jeremy Bentham & John Austin Theory that human laws are derived from eternal and unchangeable principles that regulate the natural world, and that people can become aware of these laws through the use of reason. Socrates & Plato Aristotle St. Thomas Aquinas John Locke

3. NATURAL LAW

4. SOCRATES & PLATO Lived in Athens during its “golden age,” time period when Greek civilization reached its highest development Philosophic method was to start discussions in the street about a particular topic, such as justice, knowledge, love or virtue Through process of questions, answers, & more questions, he would try to arrive at some agreement and understanding of how a topic functioned in a person’s search for the “good life” Plato Socrates
5. Socrates There’s a moral imperative in the law, and it must guide people in right living The law demands that each person do what is right and avoid what is wrong True justice lies in obeying the law that is based on eternal principles that govern the universe, that is, in natural law
6. Plato Plato thought society existed to help people develop the good life, the life that is led according to the principles of justice For Plato, justice exists when all the powers of an individual or society work together for the good of the whole Human laws must be based on knowledge of the eternal laws that rule the universe He would say the first and most basic law is to do good and avoid evil
7. Aristotle(384 – 322 BCE) Student of Plato Humans are political animals but humans have reason, this allows them to tell the difference between good & bad, just & unjust (known as rationalism) Morally speaking, people fall into 3 classes: Some are born good; Some can be made good through education; Majority of people are ruled by their passions, and education alone will not make them good (only law can do that)
8. Only through fear and punishment that most can be persuaded to follow reason and do what is right Law has a moral purpose Highest purpose of law is to help citizens use their faculty of reason to reach their greatest potential, and by doing so to live a good life Reason is a spark of the divine in human beings
9. St. Thomas Aquinas (1224 – 1274) Dominican Monk, taught in Paris Taught at a time when Greek philosophy had just been rediscovered Identified four kinds of law: Eternal law - The body of laws by which God created the universe and keeps it in operation, exists outside time & will never change, impossible for humans to have perfect knowledge of eternal law because it’s impossible for them to understand the mind of God
10. Natural law is the eternal law as is operates in humans and can be known by them, we know this law through our faculty of reason (ex. Parents should care for their children, each person should try to preserve his or her own life, people should do not harm to others, we should all assist the poor, the sick, and the elderly) Divine positive law is the part of eternal law that has been revealed in the scriptures (Ten Commandments in Old Testament, Sermon on the Mount in New Testament) Human positive law consists of laws that human beings have made for the proper functioning of society and the state (though it is obvious from natural law that murder is wrong, there has to be a written law so the act is defined & penalties are set out)
11. Thought humans were created for a spiritual purpose The state or its government is not the ultimate authority on earth; the Roman Catholic Church is, since it has been put in charge of the spiritual needs of the human race The state has to be subordinate to the Church People are bound by conscience to obey a just law People under no obligation to obey laws that conflict with divine laws Law is a product of human reason made for the common good made by the ruler, who must have the care of the community at heart is published so that everyone knows it
12. NATURAL AND POSITIVE LAW
13. Incorporates some aspects of natural law If king violated natural rights, then people justified in rebelling or replacing an unjust gov’t. These natural rights are life, liberty and property. The main purpose of the state is to preserve these rights. In the state of nature, people’s passions often get the better of their reason which leads to the oppression of the weak. People enter into civil society to hand over authority to the state to preserve rights. Locke’s ideas influenced philosophers for hundreds of years Laid foundation for modern theories on democracy John Locke (1632 –1704)

14. POSITIVE LAW

15. Imagine a powerful sovereign who issues commands to his or her subjects. They are under a duty to comply with his wishes. “law as a command” lies at the heart of classical legal positivism Two of its greatest followers are Jeremy Bentham and John Austin.
16. Modern legal positivists adopt a more sophisticated approach to the concept of law, they deny the relationship proposed by natural law, between law and morals. The claim of natural lawyers that law consists of a series of propositions derived from nature through a process of reasoning is strongly contested by legal positivists.
17. The Age of Reason – an intellectual movement in the 17th-century Europe that emphasized the logical analysis of philosophical problems. Philosophers began to analyze human nature and society without relying on religion. Many new philosophers began to challenge Natural law.
18. Positive law: The theory that law is a body of rules formulated by the state, and that citizens are obliged to obey the law for the good of the state as a whole. It had no moral purpose other than to ensure the survival of the state, and obedience to it was no longer a matter of conscience.
19. Law is simply what the political authority or law maker commands. Justice means conformity to the law.
20. Thomas Hobbes (1588-1679) The state of nature is a state of perpetual war where the strong prey on the weak. The weak stood together to attack those they feared This turned into a condition of war where everyone was out for themselves In interests of self-preservation, people agreed to surrender their rights to the sovereign Since all people were prone to violence and disorder, governments were formed with a strong leader to maintain law and order Fled to Paris in 1648 after witnessing the violence of the civil war.
21. All people must obey the law at all times. To not follow the law would only lead the world into chaos. The weakness of natural law is that it allows people to find their own meaning of the law. This makes law ineffectual and legitimizes tyrants.
22. Jeremy Bentham (1588-1679) To judge whether a law is good or bad: the law should be evaluated by its utility to society as a whole Utilitarianism – a truly just law provides “the greatest happiness for the greatest number” of people. The purpose of law is to maintain social order and the social good. The function of law is more important than its quality. Law is separate from morality. Natural law and individual morality are too subjective to secure the happiness of the majority.
23. Law requires: 1) The existence of an authoritative body that is in the habit of being obeyed. 2) Legal pronouncements given to political inferiors. 3) There is an imposition of the duty to obey. 4) There is enforcement through penalties. Obedience to the law is demanded of all. (Rule of Law) The governed are superior to the governor therefore abuses are kept in check by the fear of active resistance. “The mischief of a bad government are less than the mischief of anarchy.”
24. He agreed with Bentham, but, he separated law completely from morality. He believed that it was useless to judge law by a moral or religious code because these were subjective measures. John Austin (1790-1859)
25. To judge laws using a moral or religious code would mean that each person in society had his or her own interpretation of the law and therefore could obey those laws they judged to be good and disobey those they thought were bad and no society can function like this. Positive law, on the other hand, provided an objective measure of judgment- every law set had to be obeyed and there was a concrete consequence based in tradition (Precedent).
26. The father of modern legal positivism Hart argues that law is a system of rules and that all societies have social rules. These rules are divided into Primary Rules and Secondary Rules H.L.A. Hart (1907-1992)
27. Primary Rules What an individual can and cannot do Secondary Rules Rules addressed to officials to administer primary rules (enforce them) Secondary rules are divided into: Rules of adjudication -to resolve legal disputes Rules of change -allowing laws to be varied Rule of recognition -allowing laws to be identified as valid His goal was to take morality out of law