JurisprudenceJurisprudence

Chapter 3Chapter 3

Philosophy of Law

- Abbreviated!

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

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

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

(jurisprudence continued)(jurisprudence continued)

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?(discussion)(discussion)

Economic survival Economic survival (Quality of life/Standard of (Quality of life/Standard of

living)living) ? ?(discussion)(discussion)

Instill Morality?Instill Morality?(discussion)(discussion)

Dispute resolution?Dispute resolution?(discussion)(discussion)

Philosophy is often divided Philosophy is often divided into two main streams or into two main streams or

schools of thoughtschools of thought::

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

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

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 that regulate the world.principles that regulate the world.

We become aware of these natural laws We become aware of these natural laws through reason. (they do not have to be through reason. (they do not have to be legislated)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 exist a moral imperative in the lawimperative in the law

Positive LawPositive Law

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

Ex. traffic lawsEx. traffic laws

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.

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

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

Believed in God, urged people to care for the soul over money Believed in God, urged people to care for the soul over money and indulgence.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 powers is achieved when the lower powers (needs: food, sex, aggression, passion) are ruled/controlled by (needs: food, sex, aggression, passion) are ruled/controlled by your higher powers (intellect)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 people Believed that education was the answer to making people ‘good’‘good’

(Anyone who really knew what good was, would do good)(Anyone who really knew what good was, would do good)

AristotleAristotleHumans are like political animals but set apart by their ability to Humans are like political animals but set apart by their ability to use reason and to rationalize.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 divine Believed that Human ability to reason was a spark of the divine (from God)(from God)

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

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

English civil war.English civil war. Believed that the state of nature was nothing Believed that the state of nature was nothing

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

We need a power that we are ‘in awe of’ to keep We need a power that we are ‘in awe of’ to keep us in line.us in 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 surrender some of our rights to that king or government.government.

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

People are greedy and violentPeople are greedy and violent A proponent of positive lawA proponent of positive law Not an optimistic fellow.Not an optimistic fellow.

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

Hobbes.Hobbes. Incorporated some natural law theory into Incorporated some natural law theory into

things.things. If that government or king that keeps us in order If that government or king that keeps us in order

violated the natural rights of the peopleviolated the natural rights of the people people people were justified in rebelling and replacing the unjust were justified in rebelling and replacing the unjust government with one that respects their natural government with one that respects their natural rights.rights.

Natural Rights: Natural Rights: Life, LibertyLife, Liberty (free thought, speech, (free thought, speech, religion) , 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 reason:reason:

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

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

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.

Utilitarianism - Utilitarianism - WikipediaWikipedia, the free encyclopedia, the free encyclopedia

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.

Bias of Judges 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 - Legal realism - WikipediaWikipedia, the free encyclopedia, the free encyclopedia

MarxismMarxism a theory of law developed by a theory of law developed by Karl MarxKarl Marx based on his economic analysis of English based on his economic analysis of English

society during the industrial revolution. society 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 factories and mines and the relatively small size of the capitalist class that controlled these size 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 Ex. Making forming labor union a criminal offence.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.

Feminist JurisprudenceFeminist Jurisprudence FeminismFeminism

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 1929under the law until 1929-Women's franchise act allowed women -Women's franchise act allowed women over 21 to vote was passed in 1918over 21 to vote was passed in 1918-Women couldn’t vote in Quebec -Women couldn’t vote in Quebec provincial elections until 1940provincial 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 womenwomen

2) failure to recognize that women are 2) failure to recognize that women are different from mendifferent from men

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

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.