LEGAL THEORY
Sources – Understanding the Law,
Dimensions of Law, Canadian Legal Information Institute (CanLII)
Ancient Legal Theory
◻
Natural Law
–
the theory that all humans arederived from eternal and unchangeable principles that regulate the natural world, and that people can
become aware of these laws through the use of reason – independent of human will
If a wise and beneficent God created the world, then he/she also created laws to govern the natural world – use of reason The closer humans laws mirror natural laws, the better
Natural Law Theory
◻ A society is defined by its communal moral and value system (Patrick Devlin)
◻ Morality and the law are inextricably joined
◻ Naturalists say that the law must be concerned about private matters because private matter do affect society.
Ex. Society will not be concerned about one gambler, but if half the population were gambling, such a situation would have and enormous impact on society.
◻ Natural law proponents agree that it is difficult to find common ground when it comes to morality, but not impossible
Natural Law
◻
Socrates – used process of
dialectic
to arrive at the
meaning of a term and how it fits into the search for
the “good life”
Tried to discover reason through question and discussion – search for what is moral and just Because of his teachings, he was tried for: 1)
Aristotle and Rationalism
◻ Humans are political creatures – cannot be “good”
purely because of education
Rather they fit into 1/3 class of people:
■ Those born good,
■ Those who can be made good through education,
■ Or those who are rules by their passions (**majority of people)
◻
Rationalism
– process of using reason to analyze
the natural world from observation
(modernAristotle and Rationalism
◻ Through rationalism, we can determine what is
good/just vs. what is evil/unjust
◻ Only law (fear or punishment) that can control people
and convince them to follow reason/avoid evil
◻ Purpose of law:
Regulate human life in the state
St. Thomas Aquinas
◻ 1224-1274
◻ Identified 4 kinds of laws:
1. Eternal Law
■ Body of laws by which God created he universe and keeps
it in operation (impossible for humans to know because it is outside them – impossible to understand mind of God) 2. Natural Law
● Law as it operates in humans – we use our faculty of
reason to know them and see its workings in the world around us
● Examples: - Parents should care for their children
St. Thomas Aquinas
3. Divine Positive Law
● This is law that has been revealed in the scriptures
(Ten Commandments)
4. Human Positive Law
● These are laws that humans have made in order to
achieve a properly functioning society
● Codified laws and punishments – Though some are
obvious (Murder is wrong), they need to be written/defined down for society to function
● Humans are moral, and should live in a way that will unite them with God after death
● People did not have to obey a law that conflicted with Divine laws
● Law must be a product of human reason, be made for
Your Turn!
◻ Should laws ever be
ignored?
Former Gun Registry? Physician Assisted
English Theorists -
Positive Law
◻
The theory that law is a body of rules formulated
by the state, and that citizens are obliged to obey
the law for the good of the state – government’s
role is to prevent one from harming others
◻
Introduced as part of the religious/political
upheaval in 16
th-17
thcentury Europe
◻
No moral purpose, and not a matter of
conscience
Positive Law
◻
Positivists argue that the connection between law
and morality is arbitrary – laws must be clearly
defined by the state
◻
Enforcing morality on a reluctant population has
also proven to be difficult
Thomas Hobbes
◻ 1588-1679
◻ In “Leviathan”, he proposed new purpose to law – To rule over the state/people as to maintain law and order
◻ People were violent and disorderly – purpose of
government is not to defend natural law rights, but control the people to avoid war and destruction
◻ People should surrender to king/monarch – The king
John Locke
◻ 1632-1704
◻ If the king violated natural rights, then people were
justified in rebelling – replace government with one that respected natural rights
■ Natural rights – Life, liberty (speech, religion, and thought), and property – no person should deny these rights to another
◻ Through the consent of the people, government was
given the authority to control the state and preserve these rights by enforcing rules/penalties
◻ Strong influence on Jefferson, American/French
Jeremy Bentham & John Austin
◻ People would try to achieve the maximum amount of
pleasure and happiness in their lives
◻ Proposed a way to judge law as good or bad – laws
would be evaluated by its utility to society as a whole (for the good of all)
◻ Utilitarianism – the greatest good for the greatest
number of people
◻ Austin – added that laws must be evaluated on an
John Stuart Mill
◻
Similar to Bentham in that laws should serve a
utilitarian (useful) purpose, but argued that the
social good was
altruistic
in nature – social good
◻
“actions are right in proportion as they promote
Your Turn!
◻
Compare/contrast?
◻
Pros and cons of Natural/Positive Law?
◻
Examples in our society?
Modern Legal Theories
◻ Legal Realism – examines law in a realistic rather
than theoretical fashion – belief that law is
determined by what actually happens in the courts as judges interpret/apply law
◻ Different judges have different backgrounds,
perspectives, and training – by that logic, their
decisions could be different even though it’s the same case
◻ These decisions become case law – will have an
Legal Formalism
◻
In contrast to
realism
,
Legal Formalism
is a
positivist approach in which the judge applies the
laws as they are
◻
Laws are not interpreted, or applied as they
could/should
be, but only as they are written
Marxism
◻
Karl Marx (1818-1883) - Purpose of law to
maximize the interests of the ruling class – Law =
class rule
◻
Marxism
– an economic/political theory that states
that law is an instrument of oppression and control
that the ruling class uses against the working class
◻
Is this concept still current? Does our legal system
Feminist Jurisprudence
◻ Legal theory that law is an instrument of oppression by men against women
◻ Similar to Marxism, but rather law is used by men to oppress women (result fo the 60’s Women’s liberation movement)
◻ Feminists argue that the law, historically, treats women differently than men:
■ Women were not “persons” until 1929… Right to vote in 1918 (1940
in Quebec)… Men could file for divorce on grounds of adultery, but women could not (1925)
◻ 1989 – Brooks v. Canada Safeway Ltd. – Denying insurance benefits to pregnant women is illegal
◻ Lastly, legal institutions are systematically biased against allowing women to attain positions of power (First women to SCC…1982)
Critical Race Theory
◻ Derrick Bell, Alan Freeman, and Richard Delgado
◻ Arrived in 1980’s – Focuses on the relationship of
law and power as a function of a racial hierarchy
◻ Proposes that laws favour “white privilege” and
marginalize people of colour
◻ Would laws be different if they were made by people
Critical Race Theory
◻ Bell & Freeman were frustrated by the slow pace of
racial reform in the US
Traditional approaches of combating racism were not as effective as they once were
◻ Can also include being marginalized by “race, sex,
class, national origin, and sexual orientation, and how their combination plays out in various settings”
◻ End goal for CRT – “eliminate racial oppression as
a broad goal of ending all forms of oppression”
Concept of Restraint of Power
◻
Philip Selznick argued the validity/quality of a
country’s laws does not lie in the exercise of
power/control, but rather the predictable restraint of
those using the power
Application of Legal Theory
◻
Canada is more closely aligned with Selznick’s
validity of law than we are dictatorship
◻
Traditionally, the court system is the “independent
body” that challenges laws when they violate
rights/values
◻
Remember the “
Rule of Law”…
no one is above the
law
◻
Roncarelli v. Maurice Duplessis – Abuse of legal
Positive Law in Canada
◻ Federal government can pass laws for “the peace,
order and good government of Canada”
◻ Their power does not go unchecked (Provinces), but
implement laws when necessary
◻ E.g. “War Measures Act 1970”, “Anti-Inflation Act
1975”
◻ Even in the Charter, rights can be “limited” based on
Your Turn!
◻
Positive Law or Natural Law – Which are you and
why? – How is modern law theory influenced by
your choice (positive or natural)?
◻
