Theories and Concepts of LawTheories and Concepts of Lawcontinuedcontinued

Positive Law Positive Law Law is simply what political authorities or

lawmakers commandIt is based upon human reason and

authorityGrew as a reaction to the power of the

Roman Catholic Church during the Reformation

King Henry VIII of England began the separation of Church and State

The only real morality is in obedience to law

The Players &

their Philosophies

Thomas Hobbes Thomas Hobbes England 1588-1679England 1588-1679

Obedience of human law is the only way to protect man from his own natural selfishness and brutality.

Natural law was simply used to support the authority and maintain the power of tyrants who claimed power was rooted in eternal law.

Hobbes continued…Hobbes continued…The weakness of natural law lay in

its invitation to individuals to define content according to their own morals and views

Without a governing body creating and enforcing laws, people would become violent and lawless

No tolerance of civil disobedience except to preserve one’s own life

Thomas Hobbes’ Social Contract Thomas Hobbes’ Social Contract TheoryTheoryMan’s nature does not require a

governing state, however, a better life would be assured through existence of an outside governing state.

Although he felt it was unnatural for man to put himself under control of others, thought it was rational to have government

Social Contract Theory Social Contract Theory ContinuedContinuedThe idea of a social contract is

premised on the notion that an individual’s liberty and property are better secured if we band ourselves together than if we are left alone, each to our own devices.

Social Contract Theory Social Contract Theory ContinuedContinuedGiven a choice, a typical person

would:◦Give up certain rights in exchange for

peace and security◦Put himself under government and follow

its rules , fairly made and enforced

This arrangement is the nature of a contract – an exchange:

Citizens provide obedience and compliance in exchange for greater security and liberty

“And law was brought into the world for nothing else, but to limit the natural liberty of particular men, in such manner, as they might not hurt but assist one another, and join against a common enemy”

~ Thomas Hobbes, Leviathan

QuestionQuestion

How might social contract theory explain the existence of gangs?

John LockeJohn LockeEngland 1632-1704England 1632-1704

Often referred to as “the philosopher of freedom”

Developed a less pessimistic view of society that reintroduced elements of Natural Law into Positive Law

View was that God created man and we are, in effect God’s property. Thus, crimes like murder violate the divine purpose and is wrong.

John Locke’s Perspective on John Locke’s Perspective on Social Contract TheorySocial Contract Theory

Citizens can better secure their liberty and property by giving up a little of each to a central authority.

However, Locke clearly felt that the power of the state should be limited.

Locke continued…Locke continued…Saw law-making and law-abiding as

a give-and-take relationship

Governments were formed through the consent of society and in return, would protect individuals natural rights (Life, liberty and property)

Sole purpose of state was to protect individuals against those who may interfere with their freedom

Locke continued…Locke continued…The state should not interfere with

personal freedoms of its citizens

Huge advocate for constitutional law as it defines the relationship between the state and its citizens and outlines the state’s rights, responsibilities, and limits on power

Impact of Locke: Declaration of Independence, American and French Revolutions

Jeremy BenthamJeremy BenthamEngland 1748-1832England 1748-1832

Founder of the theory of UTILITARIANISM, which claimed that since humans are motivated by the desire to achieve pleasure and avoid pain, laws should provide the greatest good for the greatest number.

Bentham continued…Bentham continued…

A system of law has the following requirements:i. Authoritative bodyii. Legal commandsiii. An imposed duty or obedience;

and iv. Enforcement through penalties

John AustinJohn AustinEngland 1790-1859England 1790-1859

Good friend of Bentham, influenced by Utilitarianism

Legal Positivism: asserts that it is both possible and valuable to have a morally neutral theory of law.

Did not believe in placing law and

morality together (reflective of scientific attitudes of the time)

Austin continued…Austin continued…The law is:

i. A set of commands issued by the sovereignii. Commands are backed up with punishmentsiii. A sovereign is anyone who is habitually

obeyed by the people

For laws to be obeyed, a governing body traditionally respected, imposition of duty and obedience and enforcement through threat of penalties were necessary

Legal RealismLegal RealismU.S.A. 19U.S.A. 19thth Century Century

Belief that theory and philosophy of law are impractical, given that judges interpret and apply laws differently in real-life cases

Law is a prediction of what the courts will decide

Court hierarchy is the attempt to deal with ideas found in Legal Realism

Karl MarxKarl MarxObserved the class struggle during the

Industrial Revolution (large number of workers and small number of capitalists who controlled everything).

Marxism had to do with the inequalities in society.

Law was a tool for maximizing the interests of the ruling class and controlling the working class. In other words, law was an instrument of oppression.

Feminist JurisprudenceFeminist JurisprudenceThe theory that law is an instrument

of oppression by men against women.

The law needs to be objective and neutral in its application so that everybody is treated equally under it.

E.g. Women only became ‘persons’ under the law in 1929 and got the vote in 1918 (Quebec 1940).