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Chapter 3

Philosophy of Law
What is ‘jurisprudence’?
• Jurisprudence is the philosophical
interpretation of the nature and
purpose of Law.

• It is your idea or beliefs about what

the purpose of the law should be.
What do you believe to be the main purpose of the


Economic survival?
(Quality of life/Standard of living)

Instill Morality?

Dispute resolution?
Philosophy is often divided into
two main streams
or schools of thought:

 Natural Law (natural Law theorists)

 Positive Law (positive law theorists)

 Law: Abody of enforceable rules
governing relationships among
individuals and between individuals
and their society.
Natural Law
 The theory (idea) that human laws come from
eternal (never ending) and unchangeable principles
that regulate the world.

 We become aware of these natural laws through

reason. (they do not have to be legislated)
Ex. A mother takes care of her newborn.
That we would help those in need.

 There does exist a moral imperative in the

 Natural Law: A system of universal
moral and ethical principles that are
inherent in human nature and that people
can discover by using their natural
intelligence (e.g., murder is wrong;
parents are responsible for the acts of
their minor children).
Positive Law

1. Law is a body of rules formulated by

the state that the citizens are obliged to
follow for the good of the state.

Ex. traffic laws

Paying taxes
Not parking in a designated fire route
 Positive Law: The written law of a
particular society at a particular
point in time.

 There is no moral imperative to the

(no duty to consider moral senses of
the time)
Legal theorists who present or understand their
theories as “positivist”, or as instances of “legal
positivism”, take their theories to be opposed to, or
at least clearly distinct from, natural law theory.
Natural law theorists, on the other hand, did not
conceive their theories in opposition to, or even as
distinct from, legal positivism (contra Soper 1992 at
The term “positive law” was put into wide
philosophical circulation first by Aquinas, and
natural law theories like his share, or at least make
no effort to deny, many or virtually all “positivist”

• Positive law can exist with no
natural law.

• Natural law theory is not separate

from positive law.
Positive law theorists gained strength in England
at a time of widespread political, social and
religious upheaval. This period of violence,
fear, confusion and ignorance affected the way
thinkers of the time viewed the origin and
purpose of law.

Secularism: separate from religion

sec‧u‧lar /ˈsɛkyələr/–adjective
1.of or pertaining to worldly things or to things that are not
regarded as religious, spiritual, or sacred; temporal: secular
Moral Absolutism
 Moral absolutism is the belief that there
are absolute standards against which
moral questions can be judged, and that
certain actions are right or wrong, devoid
of the context of the act. "Absolutism" is
often philosophically contrasted with moral
Moral Relativism

 Moral Relativism is a belief that moral

truths are relative to social, cultural,
historical or personal references, and to
situational ethics, which holds that the
morality of an act depends on the
context of the act.
 Between moral absolutism and moral

 which would you associate with Natural

law and which with positive law?

Natural Law Moral Absolutism ?

Positive Law Moral Relativism ?

(Read: Socrates, Plato, Aristotle)

Natural Law Theorists –

All believe that the law has a moral imperative
It is the mark of an educated
mind to be able to entertain a
thought without accepting it.

The two qualities which chiefly
inspire regard and affection [Are]
that a thing is your own and that
it is your only one.
At his best, man is the noblest of
all animals; separated from law
and justice he is the worst.
Dignity consists not in possessing
honors, but in the consciousness
that we deserve them.
The educated differ from the
uneducated as much as the living
from the dead.

The roots of education are bitter,

but the fruit is sweet.
We do not act rightly because we
have virtue or excellence, but we
rather have those because we
have acted rightly.
We are what we repeatedly do.
Excellence, then, is not an act
but a habit.
It is the mark of an instructed
mind to rest satisfied with the
degree of precision which the
nature of the subject admits and
not to seek exactness when only
an approximation of the truth is
Democracy arose from men's
thinking that if they are equal in
any respect, they are equal
Without friends, no one would
want to live, even if he had all
other goods.

Wishing to be friends is quick

work, but friendship is a slow-
ripening fruit.
We give up leisure in order that
we may have leisure, just as we
go to war in order that we may
have peace.
This is the reason why mothers
are more devoted to their children
than fathers: it is that they suffer
more in giving them birth and are
more certain that they are their
Plato is dear to me, but dearer
still is truth.
Wretched, ephemeral race, children
of chance and tribulation, why do
you force me to tell you the very
thing which it would be most
profitable for you not to hear? The
very best thing is utterly beyond your
reach: not to have been born, not to
be, to be nothing. However, the
second best thing for you is: to die
“I count him braver who
overcomes his desires than him
who overcomes his enemies.” -
“A state is not a mere society,
having a common place,
established for the prevention of
mutual crime and for the sake of
exchange...Political society exists
for the sake of noble actions, and
not of mere companionship.”
“It is the nature of desire not to
be satisfied, yet most men live
only for the gratification of it.” -
Evil brings men together.

“Piety requires us to honour truth
above our friends.”
“Even when laws have been
written down, they ought not
always to remain unaltered.”
“Man is by nature a political
“Law is order, and good law is
good order.”
There are 3 people in a desert. Najam, Nick and Ryan.
Najam and Ryan do not know each other, but they both
want to murder Nick. Nick does not know that either of
the others wants to kill him.

Najam attempts to kill Nick by poisoning his water

canteen which would kill him almost instantaneously.

Ryan, not knowing what Najam had done, steals Nick's

water canteen.

A few days later… Nick dies of thirst.

Who should be charged for the murder of Nick?

Who is morally blameworthy?

Used the process of Dialectic

Trial Of Socrates p.70-71

The whole purpose of the law is to encourage

people to live good, virtuous lives.

Believed in a God, urged people to care for the soul over

money and indulgence.

Obey the law even in the face of death.

Humans are social by nature / like political animals
Organized society is a natural institution
The state did not exist only for economic reasons.

Justice in the individual is achieved when the lower powers

(needs: food, sex, aggression, passion) are ruled/controlled by
your higher powers (intellect)
This is achieved through reason.
Justice in the state is achieved though law.

Believed that education was the answer to making people ‘good’

(His logic: Anyone who really knew what good was, would do good)
He believed that all men had the potential to be good.
Humans are like political animals but set apart by their ability to use
reason and to rationalize.
By following reason and not their passions, people can reach their
Believed that Human ability to reason was a spark of the divine (from
“If reason is divine, then, in comparison with man, the life
according to (reason) is divine in comparison to human life.”
Believed that education alone was not enough. We had to be scared
of law and punishment to really obey law.
Believed that morally, people fall into 3 categories:
Born good (very few)
Educated to do good (very few)
Ruled by their passions and desires
St.Thomas Aquinas
 A Christian Philosopher and Professor at the University of
 Divided Law into 4 categories:

Eternal Law
Natural Law Both Natural law

Divine Positive Law Both Positive law

Human Positive Law
Furthermore, Thomas distinguished four kinds
of law: eternal, natural, human, and divine.
Eternal law is the decree of God that governs
all creation. Natural law is the human
"participation" in the eternal law and is
discovered by reason. Natural law, of course, is
based on "first principles":

“ . . . this is the first precept of the law, that

good is to be done and promoted, and evil is to
be avoided. All other precepts of the natural
law are based on this . ..”
Thomas Hobbes 1588-1679
 Witnessed the violence and atrocities of the English civil
 Believed that the state of nature was nothing more than
war where the strong and intelligent plunder
(destroy/abuse) the weak and slow.
 We need a power that we are ‘in awe of’ to keep us in line.
 In the interest of self preservation, we agree to surrender
some of our rights to that king or government.
 In the state of nature, we would live lives that were
“solitary, nasty, brutish and short.”
 People are greedy and violent
 A positivist
 Not an optimistic fellow.
John Locke 1632-1704
 Tempered (balanced) the extreme pessimism of
 Incorporated some natural law theory into things.

 If the government or king that keeps us in order

violated the natural rights of the people people were
justified in rebelling and replacing the unjust
government with one that respects their natural rights.

 Natural Rights: Life, Liberty (free thought, speech,

religion), and Property.
 Government is formed with the consent of the people
and existed to preserve their rights.
 Locke had strong influence on Thomas Jefferson, chief
author of the U.S. Declaration of Independence in which
Jefferson echoes natural law theory that certain truths are
universal and can be concluded through reason:

…That all men are created equal; that they are

endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the
pursuit of happiness; …

 John Locke’s combination of natural and positive law would

have the greatest influence on modern legal thinking.

 Inspired both the French and American revolutions.

Jeremy Bentham (1748-1832)
 Bentham believed that when left to our own devices, we try
to achieve maximum pleasure and happiness in our lives.
 A law should be evaluated by it’s utility (usefulness) to
society as a whole. Basically;
 …a truly just law provides “the greatest happiness [for] the
greatest number” of people. Utilitarianism
 Hedonistic Calculus (a formula)

John Austin (same as above plus…)

 Law should be completely separated from morality.
 Every law had to be obeyed, no matter what.

 …John Stuart Mill

• Modern utilitarianism

• The 18th and 19th-century British philosophers Jeremy

Bentham and John Stuart Mill defended the ethical theory of
utilitarianism, according to which we should perform
whichever action maximizes the aggregate good. Conjoining
hedonism, as a view as to what is good for people, to
utilitarianism has the result that all action should be directed
toward achieving the greatest total amount of happiness
(Hedonic Calculus). Though consistent in their pursuit of
happiness, Bentham and Mill’s versions of hedonism differ.
There are two somewhat basic schools of thought on
• Critics of the quantitative approach assert that, generally,
"pleasures" do not necessarily share common traits besides
the fact that they can be seen as "pleasurable." Critics of the
qualitative approach argue that whether one pleasure is
higher than another depends on factors other than how
pleasurable it is.
Noam Chomsky
-American linguist and political activist.
-He Believes the law primarily serves the purposes
of those in power.
-He believes there is a co-operation between the
elite class of society and the law makers that
maintain the status quo and the wealth and
power of the elite.
-He believes the media plays a significant role by
withholding serious information from the
public- keeping the masses happy and ill-
Legal Realism
 Shift away from legal theory and focus on what
actually happens in the justice system.
 Sets out to examine the law in a realistic rather
than theoretical fashion.
 Focus on the bias of Judges
Legal realism offers a focus on the temperament
of individual judges and how their backgrounds
might influence their judgments.
Legal realism - Wikipedia, the free encyclopedia
 A theory of law developed by Karl Marx.

 based on his economic analysis of English society during

the industrial revolution.
 He saw the bulk of the population go from farming to
industry and he noticed the unprecedented number of
workers in the mills factories and mines and the relatively
small size of the capitalist class that controlled these
“means of production”

 He concluded that British law favored the capitalist class

by strengthening its power over the working class.
 Ex. Making forming labor union a criminal offence.
 An economic and political theory
that states that law is an
instrument of oppression and
control that the ruling classes use
against the working classes.

(And this should be rectified)

Feminist Jurisprudence
 “Feminism”

 The theory that law is an instrument of

oppression by men against women.

 Product of the women's liberation

movement of the 60’s

 Challenges that law is gender neutral.

Developed while many laws still
oppressed women;
-Women not considered “persons” under the law
until 1929.
-Women's Franchise Act allowed women over 21
to vote was passed in 1918.
-Women couldn’t vote in Quebec provincial
elections until 1940.
-Until 1925 a man could file for divorce on
grounds of adultery but women couldn’t. They
had to prove desertion.
 Feminist groups claim 3 major ways
the law has discriminated against
 1) Laws that are discriminatory against women
(last slide)

 2) failure to recognize that women are different

from men

 3) Systematic bias: the system is designed to

keep women out of top positions
(government, business)
“The glass ceiling”

A social and political theory that

states that law is an instrument
of oppression and control that
men use against women.

(And this should be rectified)

“Brandeis Brief” p.81
• Named after Lawyer Louis Brandeis (~1900)
• Using non-legal social and economic evidence
to convince the court of the social
consequences of the decision.
• Do we still do this?
Beverly McLachlin p.84
• Why was she branded a “radical feminist” by
the Canada Family Action Coalition?

• Why did feminist groups assail (attack) her

decision of striking down the “rape shield”?
• Lon Fuller  Procedural Justice
• The fairness of the process is the key
determinant of the quality of a legal

• Philip Selznick  Restraint of Power

• The key determinant of the quality of a
legal system is whether this is an
independent body that can review and
restrain power.
A Gross Abuse of Legal Power
• P.89: Roncarelli v. Duplessis 1959

• What was (is) the predominant religion in Quebec?

• Why were about 1000 Jehovah’s Witnesses
• Who was Roncarelli and what was his vested
• Who took away Roncarelli’s liquor licence?
• Why was this considered a “Gross abuse of legal
Positive Law in the Constitution
• Canadians are more willing to accept government
control (Positive Law – Hobbes, etc.)
• S.91 of Constitution 1867 gives Federal
Government the general power “to make laws for
the peace, order, and good government of

• See case: Challenging Wage and Price Controls

Challenging Wage and Price
Controls p.91

• Reference re Anti-inflation Act [1976]

You Decide!
• Trying to Catch the Balcony Rapist p.96
• P.109