Legal Theorist 12.5.11

Theorist (Philosopher) Statement or Idea Your Understanding

Aristotle (384 – 322 BCE)If persons are unequal they may be “allotted unequal shares.”

If persons do not contribute to their society by working hard or helping the community they should not be expected to share equally in the resources of the community.

John Locke (1632 – 1704)“The legislative cannot assume to itself a power to rule by arbitrary decrees.”

The government cannot make laws or govern as it chooses; it must take into consideration the wishes of the people.

Richard A. Posner (1939 - )

Law must reflect economics realities and should be assessed on the basis of its effectiveness in altering negative behaviors.

Laws should be evaluated only on a cost/benefit analysis if a law that makes people wear seatbelts costs more to enforce than the reduction in health-care costs from injuries due to not wearing seatbelts t should be repealed

Jeremy Bentham (1748 – 1832)

Law was simply a means of social control and had nothing to do with morality.

The purpose of law is to make people follow set-out rules and provide order; it is not meant to determine what is moral or immoral.

John Rawls (1921 -)The justice system should operate behind a “veil of ignorance”.

The justice system should not consider whether a person is wealth, famous, or powerful but should ensure that everyone, rich and poor, famous or ordinary, are treated the same and have similar access to the system.

Thomas Aquinas (1225 – 1274)

“… it belongs to the law to command and forbid.”

The purpose of law is not just to set out rules, but to prevent people from doing things that are evil and to lea them to doing good.

H.L.A. Hart (1907 - 1992)

The purpose of law is to coerce, or force, people to do certain things and not do others, but since this is difficult to apply in all circumstances, there should be “an open texture of law.”

Law essentially forces people by threat of imprisonment for fine to do certain things (e.g. wear seatbelts) and not do others (e.g. steal), but law should also take into account why people were not wearing seatbelts or why they stole and sentence accordingly.

Thomas Hobbes“No action can be unjust, but when a covenant is made, then to break it is unjust…”

The law itself cannot be just or unjust, the only thing that is unjust is if the law in place at the time is broken.