JURISPRUDENCE
Unit 1
• he role of positivism How law(s) ought be
drafted and the role of these laws Do laws
relate to any higher role, or are they simply
man-made? Should the Statement of
Individual Rights that you create for Tagg
include directive language? Should the
Statement of Individual Rights be
philosophical as a statement of moral rights?
• t has been suggested that the development of
law is a function of natural law. Do you believe
this to be true? Alternatively, can the converse be
true as well in that law has influenced the
development of natural law theories?
• Think about the role of natural law in the process
of developing the Statement of Individual
Liberties for the Island Nation. Then write a three
page paper discussing natural law and its
relationship to civil liberties.
• Natural law is a foundational concept of the rights and
liberties of many legal systems in history. As part of
your analysis for this project, consider the application
of natural law in other legal systems you have found in
history - e.g. early English law such as the Magna Carta
that you read in LS 500.
• In addition to your readings this week, perform
additional research on both principles. Support your
statements with references from your research.
• Your paper should be at least three pages in length,
double-spaced, and follow correct APA citation format.
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Natural Law
Legal Positivism
Plato
Aristotle
Augustine
Thomas Hobbes
John Locke
Jeremy Bentham
Legal Positivism
• The legal positivists have suggested that there was no link between law
and morality and hence no moral limitations on the legal system. One of
the key factors of the reign and success of the National Socialist Party in
Germany was that they were operating under positive law. They used
lawyers and judges, especially in the early years (the 1930s), to accomplish
many of their results by simply implementing legal doctrines and having
the courts enforce them.
• When western democracies raised issues about National Socialism, they
responded by saying that the individuals charged in fact did have a trial
before a judge. In fact, they were meticulous in documenting these
�laws� and then using them to suppress liberties. Many of the people
who were the focal point of National Socialism took heart in the use of the
legal system, believing that this was simply a brief period and that the
traditions of a moralistic legal system would result in another correction.
They were of course proven wrong.
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• Many of the miseries suffered by African Americans in
this country were authorized by statute and approved
by the courts. Research the Nuremberg Trials that took
place after World War II and evaluate the rulings of the
Court with regard to the argument that what was done
in Germany was lawful. Evaluate the justification of
doctrines such as �separate but equal� (thrown out
in Brown v. Board of Education and the Dred Scott
ruling 19 How 393 (1857), in which Justice Roger
Brooke Taney denied U.S. citizenship to all blacks, free
or slaves. This is called legal positivism and the
separability thesis.
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Natural Law
• The Reverend Martin Luther King was in a Birmingham Jail in 1963 for
what was alleged to be civil disobedience. A group of clergymen from
Alabama published a statement calling Dr. King�s actions �unwise and
untimely�. Dr. King responded saying that he believed the clergymen to
be men of good will and that the criticisms were sincerely set forth. He
went on to comment that he was in Birmingham because there was
injustice there and that all communities are interrelated.
• Dr. King believed that injustice anywhere is a threat to justice everywhere.
His argument to the clergymen was that efforts at civil disobedience and
demonstrations pale in comparison to the harm being suffered by black
citizens in the city. Dr. King suggested that the goal of the demonstrations
was to open a negotiation to effect changes in the system.
• The clergymen ended their letter by commending the Birmingham policy
for keeping order.
• In light of these events, consider the following qu
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The two most important clauses of Magna Carta are among the legal clauses.
Clause 40 promises, “To no one will we sell, to no one will we deny or delay right
or justice.” This clause establishes the principle of equal access to the courts for all
citizens without exorbitant fees. In clause 39, the king promises, “No free man
shall be taken or imprisoned or disseised or outlawed or exiled or in any way
destroyed, nor will we go or send against him, except by the lawful judgment of his
peers or by the law of the land.” This clause establishes that the king would follow
legal procedure before he punished someone. Historians have debated at length
the meaning in 1215 of “by lawful judgment of his peers or by the law of the land,”
and who exactly was covered by the term “free man.” By the later 14th century,
however, statutes interpreting the Magna Carta equated “judgment of peers” with
trial by jury (which did not exist in criminal cases in 1215). Other statutes
rephrased “by the law of the land” as “by due process of law.” These later statutes
also substituted “no one” or “no man of any sort or condition” for “no free man,”
which extended the protections of the clause to all the king’s subjects. These
protections were cited in many founding documents of the American colonies and
were incorporated into the Constitution of the United States.
By most accounts only clauses 39 and 40 of the Magna Carta remain valid law in
England.