Theories and philosophies of
law
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Jurisprudence
Over many centuries, legal scholars and philosophers have formulated various
definitions of law. Their writings, theories and debates are known collectively as
Jurisprudence
It covers such topics as definition of law, reasons for making and obeying laws,
characteristics of a good law, definition of a crime, etc.
This lesson will explore several schools of thought that address these topics- forming
the basis of jurisprudence.
Including:
1.
2.
Natural Law
Positive Law
Natural Law
-Ancient and medieval theories of natural law are based on
the notion that a wise and loving God created the universe
according to eternal and unchanging laws.
-Humans, as part of nature, live according to these laws.
-The closer that human laws mirror the natural law, the
better society will function
Key Concept:
Examples:
“An unjust law is no law at all”
Socrates and Plato
Natural Law and Socrates
-Greek philosopher (470-399BCE)
-The point of law is to encourage
people to live good lives
-the law demands that each person
do what is right, and avoid what
is wrong
-true justice lies in obeying the
law that is based on the eternal
principles that govern the
universe. (natural law)
Natural Law and Plato
-A student of Socrates
-Humans are by nature social, so organized society is a natural
institution.
-He searches for the meaning of “justice” in his dialogue “The Republic”
-His answer: a human achieves justice through reason, so the state
achieves justice for law.
-Justice exists when all the powers of the individual or society work
together for the good of the whole
-The first and most basic law is to do good and avoid evil.
-For Plato, law is closely associated with morality
- Plato believed that education is key- people need to be taught how to be
good
Natural Law And Rationalism
The process of using reason to analyze
the natural world from observations.
It is the root of the modern
scientific method
Example:
Aristotle
Rationalism, Natural Law and Aristotle
-Aristotle (384-322 BCE) was a student of Plato
-Agreed with Plato that humans are political animals. Like bees and ants, they live in
colonies with a social organization.
-But unlike Plato, Aristotle that humans are different from animals because they have
the ability to reason.
-Reason allows humans to know the difference between good and bad
-Felt that people belong to 3 categories: 1 born good, 2 made good by education, 3
ruled by their passions
-For group 3(the majority of people), education alone will not make them good. They
need the law to force them to be good. It is fear of punishment that will convince
people to be good and not evil.
Natural Law and St Thomas aquinas
A Dominican Friar (1224-1274) who studied Aristotle
Aquinas identified four kinds of law:
1.
2.
3.
4.
Eternal law
Natural law
Divine positive law
Human positive law
1. Aquinas and Eternal Law
The body of laws by which God
created the universe and keeps it
in operation
This type of law exists outside
time and will never change
Humans can not fully grasp eternal
law because we do not know the
mind of God
2. Aquinas and Natural Law
Natural law is the eternal law as it operates in humans and
can be known by them.
We understand natural law through our ability to reason and
can see its workings in the world around us.
Examples of natural law:
a.
b.
c.
d.
Parents should care for their children
Each person should preserve his/her life
People should not harm other people
We should assist the poor and elderly
Aquinas and divine Positive Law
It is the part of eternal law that has been revealed in the
scriptures (10 Commandments, Sermon on the Mount, etc)
Aquinas and Human Positive Law
-Laws that human beings have made for the proper functioning
of society and the state
-Natural law reveals that murder is wrong, but humans need
to clarify how it is proven and how it is punished
Aquinas VS Aristotle
Aquinas agreed with Aristotle that human law has a moral
purpose, but he did not agree with the idea that humans can
develop their greatest potential within the state.
As a Christian philosopher, Aquinas thought that humans were
created for spiritual purpose.
The state is NOT the ultimate authority on earth.
The Roman Catholic Church is the ultimate authority.
Aquinas and the Church
People are under NO moral obligation to obey any laws that
conflict with divine laws.
“Law is nothing else than an ordinance of reason for the
common good, promulgated by him who has the care of the
community.” What does this mean?
1. Law is a product of human reason
2. It is made for the common good
3. It is made by the ruler who must have the care of the
community at heart
4. It is published so that everyone knows it
POsitive Law
The development of positive law theory in England followed a
period of religious, political and social upheaval in the
16th and 17th centuries that led to civil war and the
beheading of a Monarch.
The theory of natural law- did not seem in fitting with
contemporary reality.
Positive law is in direct contrast with Natural Law
Key Concept of Natural Law: The law must be followed to
maintain order and stability.
What is Positive Law?
Law that is established by the head of the state and for the
good of the state as a whole.
It had no moral purpose other than to ensure the survival of
the state
Obedience is not a matter of conscience.
The law MUST BE OBEYED. Anyone who challenges the law, must
be punished.
Thomas HObbes and Positive Law
(1588-1679) Hobbes witnessed violence of English
Civil War
Wrote “Leviathan”: Hobbes had a pessimistic view
of humanity where life is “nasty, brutish and
short”.
-Humans in a state of perpetual war where the
strong plunder the weak, and the weak band together
to attack those they fear.
-Therefore: Law is essential to keep order
HObbEs and Absolutism
-In the interests of self preservation, society agrees to surrender
their rights to the king.
-The king makes laws based on the common good to maintain order and prevent
chaos.
-The main goal of the state is to preserve order
-Hobbes favoured absolutism over democracy with a King that is benevolent and
acting for the common good.
-A strong leader is needed to rule over the “brutish” people and maintain law
and order
-Hobbes did not trust “the people” to form their own government of make their
own laws. (their selfish nature will cause them to make poor decisions)
Positive Law and John Locke
-(1632-1704)- An English philosopher who disagreed with Hobbes pessimistic
view of human nature
-Believed that if the King violated the natural rights of the people, then the
people were justified in rebelling and in replacing the unjust government with
one that would respect their rights.
-Locke incorporates ideas of Natural Law in his theory
-According to Locke, the most essential natural rights of humans are: the
rights to life, liberty (freedom of thought, speech, religion) and property.
-The main purpose of the state is to preserve these rights
-This blend of natural and positive law forms the foundation of modern
democracies and inspired both the American and the French revolutions.
POsitive Law and Jeremy Bentham
(1748-1832) Bentham believed that humans, when left to their
natural devices, tried to achieve the maximum amount of
pleasure and happiness in their lives.
-Therefore, laws should not be evaluated by its utility to
society as a whole. Rather, a truly just law provides “the
greatest happiness for the greatest number of people”.
-This philosophy became known as Utilitarianism: the theory
that the law should achieve the greatest good for the
greatest number of people.
LeGal realism
This is a school of legal philosophy that examines law in a
realistic rather than a theoretical fashion.
It is the belief that law is determined by what actually
happens in the courts as judges interpret and apply the law.
Examples: Marxism, Feminist Jurisprudence
Realism and Karl Marx
(1818-1883) German philosopher, economist, journalist.
Wrote “The Communist Manifesto” with Frederick Engels during the
industrial revolution. They were concerned with capitalism and the
exploitation of workers.
Concerned with class struggle between the capitalists that control the
“means of production” - or the workers
Concluded that law favoured the capitalists class by strengthening its
power over the working class.
Marxism: an economic and political theory that states that law is an
instrument of oppression and control that the ruling classes use
against the working class.
Marxism and Law
According to Marxism: “Law is
simply class rule. The ruling
class controls the formation of
law. Law is an instrument used
for maximizing ruling class
interests in society and
controlling the working classes”.
REalism and Feminist Jurisprudence
A product of the women’s liberation movement in the 1960s.
Like Marxism, Feminist Jurisprudence argues that the law has
been used as an instrument of oppression.
Marx focuses on oppression of the workers.
Feminist Jurisprudence focuses on oppression of of women.
Evidence of oppression
1. Historical laws the explicitly discriminate against women
(not persons until 1929, no voting rights until 1918,
etc)
2. The law has failed to respond to the needs of women. (a
lack of laws protecting equal pay in the workplace, a
lack of laws governing employment and pregnancy, etc)
3. The law is systematically biased against women preventing
them from obtaining positions of power and prestige.
Summary
There have been many philosophers and theories that have
contributed to our the evolution of our legal system.
Which theory or philosopher do you like the best?
Why?
How might these different theories create challenges in our
legal system.
Task: Now complete the activity