chapter 1 – heritage of law positive law. agenda 1. positive law 1. positive law 2. roncarelli v....
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Chapter 1 – Heritage of Chapter 1 – Heritage of LawLaw
Positive LawPositive Law
AgendaAgenda
1. Positive Law1. Positive Law 2. Roncarelli v. Duplessis 2. Roncarelli v. Duplessis
Learning Goal for TodayLearning Goal for Today
By the end of the lesson, students By the end of the lesson, students will be able to explain the main will be able to explain the main philosophers of positive lawphilosophers of positive law
ExpectationsExpectations Analyse the views of historical and Analyse the views of historical and
contemporary philosophers of lawcontemporary philosophers of law CGE4c – responds to, manages and CGE4c – responds to, manages and
constructively influences change in a constructively influences change in a discerning mannerdiscerning manner
CGe7d – promotes the sacredness of CGe7d – promotes the sacredness of lifelife
Origins of Positive LawOrigins of Positive Law
Development of positive law theory Development of positive law theory in England followed a period of in England followed a period of widespread religious, political and widespread religious, political and social upheavelsocial upheavel
Civil war Civil war Protestant v. CatholicProtestant v. Catholic Cromwell v. King (beheading) Cromwell v. King (beheading)
Postive LawPostive Law
Law is established by the head of Law is established by the head of state and for the good of the state as state and for the good of the state as a whole.a whole.
The law holds no moral purpose The law holds no moral purpose other than to ensure the survival of other than to ensure the survival of the state.the state.
The law by its nature must be The law by its nature must be obeyed and anyone who challenges obeyed and anyone who challenges it is subject to severe penalties.it is subject to severe penalties.
Thomas Hobbes (1588-1679)Thomas Hobbes (1588-1679)
was an atheist and Republicanwas an atheist and Republican
claimed the state of nature was a claimed the state of nature was a state of perpetual war as the strong state of perpetual war as the strong and intelligent plundered the weak and intelligent plundered the weak and the slowand the slow
HobbesHobbes
People strengthen their position by People strengthen their position by destroying those around themdestroying those around them
The result was that in the state of The result was that in the state of nature people led lives that were nature people led lives that were “solitary, poor, nasty, brutish and “solitary, poor, nasty, brutish and short”.short”.
HobbesHobbes
Therefore, security and preservation Therefore, security and preservation of peace were fundamental to of peace were fundamental to polictical and social justice.polictical and social justice.
HobbesHobbes
Since all people are prone to violence Since all people are prone to violence and disorder, we form governments and disorder, we form governments so that a strong leader will rule over so that a strong leader will rule over us and maintain law and order.us and maintain law and order.
HobbesHobbes
In the interest of self-preservation, In the interest of self-preservation, people agree to surrender their people agree to surrender their rights to the state or king because rights to the state or king because justice depends largely on the justice depends largely on the existence of a superior power.existence of a superior power.
HobbesHobbes
People need government to legislate People need government to legislate or enact laws in order to regulate or enact laws in order to regulate their relationships with one another.their relationships with one another.
HobbesHobbes
Citizens make an agreement in which Citizens make an agreement in which they surrender the right to govern they surrender the right to govern themselves to the ruling power in themselves to the ruling power in exchange, exchange,
the ruling power takes steps the ruling power takes steps necessary to protect life, property necessary to protect life, property and contract.and contract.
HobbesHobbes
Having transferred their right to Having transferred their right to govern to the ruler the people can no govern to the ruler the people can no longer claim a right to control that longer claim a right to control that rulerruler
Justice depends largely on peoples’ Justice depends largely on peoples’ obedience to civil lawobedience to civil law
HobbesHobbes
Refusing to obey the law was foolish Refusing to obey the law was foolish because it would return society to its because it would return society to its earlier state of perpetual warfare and earlier state of perpetual warfare and anarchyanarchy
John Locke (1632 -1704)John Locke (1632 -1704)
tries to soften the extreme tries to soften the extreme pessimism of Hobbes by pessimism of Hobbes by incorporating aspects of natural law incorporating aspects of natural law into his theoryinto his theory
LockeLocke
Did not believe collective rights were Did not believe collective rights were more important than individual more important than individual rights.rights.
John LockeJohn Locke
Positive law of the state was Positive law of the state was embedded in a constitution, but the embedded in a constitution, but the constitution had to be based on constitution had to be based on natural law which emphasized natural law which emphasized individual rightsindividual rights
John LockeJohn Locke
““All people have the right to self-All people have the right to self-preservation but that the law should preservation but that the law should restrain people from doing hurt to restrain people from doing hurt to one another.”one another.”
John LockeJohn Locke
If gov’t violated the natural rights of If gov’t violated the natural rights of individuals, the people were justified individuals, the people were justified in rebelling and replacing the unjust in rebelling and replacing the unjust gov’t with one that would respect gov’t with one that would respect their rights.their rights.
John LockeJohn Locke
Defined these fundamental rights Defined these fundamental rights which are unalienable as which are unalienable as
life, life, liberty (of thought, speech and liberty (of thought, speech and
religion) religion) and property.and property.
Purpose of civil law is to preserve Purpose of civil law is to preserve these three rightsthese three rights
John LockeJohn Locke
In the state of nature, people’s In the state of nature, people’s passions get the better of their passions get the better of their reason, this leads to injustice as the reason, this leads to injustice as the strong took whatever they want from strong took whatever they want from the weakthe weak
John LockeJohn Locke
Law protects individuals against the Law protects individuals against the arbitrary acts of others who would arbitrary acts of others who would interfere with their freedominterfere with their freedom
John LockeJohn Locke
Therefore, it is to a person’s Therefore, it is to a person’s advantage to form a civil society in advantage to form a civil society in which the majority hands over to the which the majority hands over to the state, the authority to preserve their state, the authority to preserve their fundamental rightsfundamental rights
John LockeJohn Locke
His ideas laid the foundation for His ideas laid the foundation for modern theories on democracy modern theories on democracy
Thomas JeffersonThomas JeffersonDeclaration of IndependenceDeclaration of Independence
That all men are created equal; that they are That all men are created equal; that they are endowed by their Creator with certain unalienable endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, pursuit of happiness; that to secure these rights, governments are instituted among men, deriving governments are instituted among men, deriving their just powers from the consent of the governed; their just powers from the consent of the governed; that whenever any form of government becomes that whenever any form of government becomes destructive of these ends, it is the right of the destructive of these ends, it is the right of the people to alter or to abolish it and to institute new people to alter or to abolish it and to institute new government, laying its foundation on such government, laying its foundation on such principles and organizing its powers in such form, principles and organizing its powers in such form, as to them shall seem most likely to effect their as to them shall seem most likely to effect their safety and happiness.safety and happiness.
Canadian Charter of Canadian Charter of Rights and FreedomsRights and Freedoms
Whereas Canada is founded upon Whereas Canada is founded upon principles that recognizeprinciples that recognize
the supremacy of God and the supremacy of God and
the rule of lawthe rule of law
John LockeJohn Locke
Both Constitutions echo the natural Both Constitutions echo the natural law theory that certain truths are law theory that certain truths are self-evident, they are universal and self-evident, they are universal and can be discerned through reasoncan be discerned through reason
Jean-Jacque RousseauJean-Jacque Rousseau(1712-1778)(1712-1778)
French philosopherFrench philosopher
““Man is born free; and everywhere he Man is born free; and everywhere he is in chains…How did this change is in chains…How did this change come about?”come about?”
Civilization has a corrupting influence Civilization has a corrupting influence on humanson humans
According to RousseauAccording to Rousseau
We recognize the necessity of the We recognize the necessity of the state to govern, advocate the idea of state to govern, advocate the idea of a contract between citizens and the a contract between citizens and the statestate
RousseauRousseau
Referred to this agreement as theReferred to this agreement as the
““Social Contract”Social Contract”
Mutually beneficial relationship in Mutually beneficial relationship in which the state could be removed if which the state could be removed if the people will it.the people will it.
RousseauRousseau
Therefore, the state should govern Therefore, the state should govern according to what he referred to as according to what he referred to as the “general will of the people”the “general will of the people”
RousseauRousseau
Difficulty lay in determining exactly Difficulty lay in determining exactly what he meant by the ‘general will’ what he meant by the ‘general will’ of the peopleof the people
Jeremy BenthamJeremy Bentham(1748 – 1832)(1748 – 1832)
Views on law were formed mainly in Views on law were formed mainly in reaction to the Industrial Revolutionreaction to the Industrial Revolution
His primary concern was legal and His primary concern was legal and social reformsocial reform
BenthamBentham
Believed that people, left to their Believed that people, left to their own devices, tried to achieve the own devices, tried to achieve the maximum amount of pleasure and maximum amount of pleasure and happiness in their liveshappiness in their lives
BenthamBentham
The law should be evaluated by its The law should be evaluated by its utility to society as a wholeutility to society as a whole
It should be based on what is It should be based on what is practical and realistic rather than an practical and realistic rather than an idealistic moral viewidealistic moral view
According to Bentham,According to Bentham,
The law is simply the best way of The law is simply the best way of ensuring the good of all, or “the ensuring the good of all, or “the greatest good for the greatest greatest good for the greatest number.”number.”
UtilitarianismUtilitarianism
The theory that the law should achieve The theory that the law should achieve the greatest good for the greatest the greatest good for the greatest number of people.number of people.
BenthamBentham
Law is simply a means of social Law is simply a means of social control and has nothing to do with control and has nothing to do with moralitymorality
John AustinJohn Austin(1790-1859)(1790-1859)
The main purpose of government and The main purpose of government and of law is to enable “the greatest of law is to enable “the greatest possible advancement of human possible advancement of human happiness”.happiness”.
AustinAustin
useless to judge law by a moral or useless to judge law by a moral or religious code because these are religious code because these are subjective measuressubjective measures
AustinAustin
Each person in society can have their Each person in society can have their own interpretation of the law own interpretation of the law
They will obey those laws they judge They will obey those laws they judge good and disobey those they judge good and disobey those they judge to be badto be bad
Society cannot function in this waySociety cannot function in this way
AustinAustin
Individuals must bend their will to Individuals must bend their will to that of the governing body since the that of the governing body since the purpose of the law is to ensure the purpose of the law is to ensure the happiness of the majorityhappiness of the majority
According to AustinAccording to Austin
No positive law can be unjust, No positive law can be unjust, because the law itself is the measure because the law itself is the measure of what is just or unjust.of what is just or unjust.
AustinAustin
The acts of individuals are to be tried The acts of individuals are to be tried against an objective standard of law against an objective standard of law and that ethics or morality should and that ethics or morality should play no part in determining whether play no part in determining whether a law is good or bad.a law is good or bad.
Positive LawPositive Law
HomeworkHomework
Hwk read Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-4, p.90