PHILOSOPHIES OF
LAW
NATURAL LAW, POSITIVE LAW,
AND OTHER PERSPECTIVES
NATURAL LAW
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The theory that human laws are derived
from eternal and unchangeable principles
that regulate the natural world.
People can become aware of these laws
through the use of reason.
Many natural law philosophers believe
that legal rules should be overruled in
particular situations if applying them
results in moral injustice.
NATURAL LAW PHILOSOPHERS
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SOCRATES: a Greek philosopher who stressed that
there was a moral component to the law, and that it
must guide people in right living.
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Even Socrates’ defence at the legal trial
that cost him his life illustrated his belief
in disregarding laws to serve a greater
moral good, though some argue
Socrates was a positive law follower as
he said we must follow the law,
regardless of the outcome.
PLATO: believed that laws should strive to reflect
universal, absolute, and eternal truths or virtues;
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felt humans could never achieve these universal,
absolute truth but the laws should;
laws should not be servants to the
government; believed it is just to disobey
an unjust law (recognition of civil
disobedience)
ARISTOTLE: founder of contemporary thinking on
natural law;
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His views on natural law weakened theory that gods
gave humans their law;
believe origin of law was in nature which was a part of
all things, living or not;
RATIONALISM – man must make laws
suitable to their own nature based on
reason and observation – this will reveal
natural laws for governing human
behavior
CICERO: Romans saw the theory of natural law as means
of justifying their authority for their rapid expansion of
their empire;
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believed the notion of natural laws as universal and
unchanging;
these higher laws presumed a moral and legal
superiority;
believed that ideal law was rooted in
divine source;
also believed in civil disobedience to
compel law makers to reform laws that
failed to conform with the laws of nature
ST. THOMAS AQUINAS:
believed that law
reflected a natural world order which humans learn
through their ability to reason plus divine revelation of
Christian prophets
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He believed there was a connection between reason and
law, reason directs us to go good and reject evil;
He felt that the purpose of human law was training to
make us virtuous
Because of his belief that justice and rights spring from
natural law rather than human law, he is credited with
influencing the modern rights theories and laws.
ST. THOMAS AQUINAS CONTINUED
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Eternal law – eternal government of the universe
according to the divine will of god
Natural law - the imprinting of eternal law on humans
Human law – the laws humans make
R.M. DWORKIN: believes in moral content of law;
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legal reasoning is interpretive to make political and moral
sense out of a difficult situation or case;
Laws reflect political morality;
favours social justice over individual justice; laws should
be the union of widely held, coherent political decisions
and judgments.
A SAMPLE NATURAL LAW
QUOTE
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“an unjust and unreasonable law…is not a
law but a perversion of the law.”
St. Thomas Aquinas
FURTHER SUBDIVISIONS OF
NATURAL LAW
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POPULAR MORALITY: judges should
determine what the majority of the community feel is
moral as a basis for their judgments. This could be done
through the use of public opinion polls when deciding
how the law should be applied.
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CRITICAL MORALITY: judges determine what
law is by determining what would be fair given the most
defensible view of moral standards operating within the
community.
This view differs from popular morality since the majority
of the public may be ill informed or biased.
POSITIVE LAW
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Also known as legal positivism; it regards valid law as
the command of the sovereign law giver, enforced
through a system of sanctions imposed by the sovereign.
There is a denial of the necessary connection between
morality and the law.
Whether or not the application of the law in a particular
situation may be morally unjust or have undesirable
consequences, does not alter what is the legally
required decision.
Law as it is.
POSITIVE LAW
PHILOSOPHERS
THOMAS HOBBES: believed that natural law was
a tool for tyrants to justify their authority on eternal
laws;
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weakness of natural law was the
invitation of individuals to define its
content – could lead to abuse of law;
was not tolerant with civil disobedience
JOHN AUSTIN: main purpose of law is the greatest
possible advancement of human happiness
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justice and morality are measured by obedience of law;
ultimately the function of law is more important than its
quality – social utility
believed in UTILITARIANISM – the greatest happiness of
the greatest number.
JEREMY BENTHAM:
founder of UTILIATARIANISM
theory;
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Law is a required authoritative body to which citizens
are in the habit of obedience;
There should be enforcement through threat of penalties
or legal sanctions; imposition of duty of obedience
A SAMPLE POSITIVE LAW
QUOTE
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“I am not here to dispense justice, I am here to dispose
of this case according to the law. Whether this is or is
not justice is a question for the legislature to
determine.”
Sir Thomas W. Taylor
Chief Justice of Manitoba
FURTHER SUBDIVISIONS OF
POSITIVE LAW
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THE LETTER OF THE LAW: requires that
judges stick to the literal meaning of the words.
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THE SPIRIT OF THE LAW: allows judges to
decide what the rules mean by referring to the goals and
purposes of the applied rules.
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SO WHAT ABOUT….?:
the right to bear arms.
The American reference to
LEGAL REALISM
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In reality, natural law and positive law are very
theoretical; whereas legal realism focuses on the actual
workings of law and legal institutions. (how the system
actually operates, not how it is “supposed” to operate)
Proponents of legal realism feel that it is misleading to
regard law as a system of rules – in practice, the law is
what judges decide to enforce.
The job of the court/judges is to prune away laws that
do not fit.
Judges don’t create new laws, but discover the meaning
of existing laws and clarify their content.
It is a response to “mechanical jurisprudence” – (i.e.
letter of the law)
FURTHER SUBDIVISIONS OF
LEGAL REALISM
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SOCIOLOGICAL JURISPRUDENCE – argues that legal
decisions ought to be decided in light of realistic expectations
about the effects of law on society.
If law is to be an effective social force, judicial decisions
ought not to be a simple application of fixed laws without
concern for the effects of such an application in the particular
situation involved.
LEGAL REALISTS – reverses the perspective by looking at
the effects of social factors in shaping legal decisions and
legal institutions.
The law is what the judge decides to enforce. While the legal
rules provide some indication of the decision a judge will
reach, judicial decisions are also the product of political
compromises, individual personalities and abilities, and
judges’ perceptions of their legal and moral obligations.
HOMEWORK
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READ PAGES 80-82 and TAKE NOTES ON LEGAL
REALISM, MARXISM, AND FEMINIST JURISPRUDENCE.