The Nature of Law. Unit One: Heritage CLU3M. C. Olaveson

Transcription

1 The Nature of Law Unit One: Heritage CLU3M C. Olaveson

2 The law is reason, free from passion. Aristotle Greek Philosopher ( BCE) Law is the embodiment of the moral sentiment of the people. William Blackstone English jurist and professor ( ) Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart but they can restrain the heartless. Martin Luther King Jr. Political Activist ( )

3 People are social creatures that tend to congregate Many people coexisting will create a society Any society will generate a set of values and objectives What must we do? WHY LAW? These collective rules will create a system of law What must we not do?

4 Law is... a series of rules that govern 1) the relationship between individuals 2) the state (country) 3) the relationships of business and associations 4) society

5 Law is constantly changing! As societies and cultures change, their values and morals change Law should be looked upon as a running stream, carrying society's hopes, and reflecting all it's values. - Chief Justice Bora Laskin

6 You will learn that: the study of law is complex You must understand society to understand law NOTHING in law is black and white As Law Students

7 Anti-Social Acts When you break the rules of society, such as by taking someone's property, swindling someone in business, obstructing a snowplow in city streets in winter, murdering your neighbor, various punishments are prescribed. These rules, applied in our society, form the LAW.

8 How Does The Law Affect You? As a Canadian you are free to do as you want except for those things which the law prohibits. Some people readily accept the rules while others have more difficulty For this reason, enforcement of rules is necessary. Canadians are governed by the 'rule of law' What would happen is there were no laws in society?

9 Law: any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience. Jurisprudence: the entire subject of law, the study of law and legal questions. Technically, jurisprudence means the science of law. Authoritative Principles: rules, standards, and values that guide judges when making legal decisions. The Rule of Law: The condition that exists where law rules above any particular party or person. (i.e. the government must follow the law it makes, the law applies equally to all, and no action can be taken unless authorized by law)

10 Eventually, these laws had to be codified, or written down, where they were used to set the morality of a society by force. Ancient cultures HAVE influences the development of Canadian law. In early societies, local customs and beliefs were the law. These beliefs were often associated with God or Gods and were believed to occur naturally.

11 Natural Law vs Positive Law (and the earliest collections of codified laws)

12 Natural Law Law which is based on the belief that law has some higher or divine origin.

13 Plato ( B.C.) Greek Philosopher Immensley influential ancient Greek philosopher. Plato studied under Socrates, wrote many philosophical dialogues, and founded the Academy in Athens where Aristotle studied. His work is often described as providing the foundation of western philosophy Idealism: Doctrine that views reality as more cerebral than physical. Thus, reality is more related to the mind than the material world. Derived from idea rather than ideal ; more related to metaphysics than ethics. Idealism applied to law: Law should reflect certain universal, absolute or eternal truths even though humans could never fully achieve these truths.

14 Aristotle ( B.C.) Greek Philosopher Rationalism: The study of nature, guided by human reason, would reveal the true meaning of law. In other words, we can come to understand God by examining his creation (ie. the natural world - including human nature). Observation: Flowers need water Conclusion: Living things need care Application: Law requires parents to care for their children

15 Today's scientific method assumes that such thinking without sufficient facts is ineffective, and that discerning the validity of one's hypothesis requires far more rigorous experimentation than that which Aristotle used to support his laws. Aristotle s Virtue ethics According to Aristotle, virtue describes how well something does what it is meant to do. Example: The virtuous eye is the eye that sees, because eyes are meant to see. The virtuous man, therefore, is the man who does what he is meant to do. Thus, happiness is best achieved through leading a virtuous life and doing what man is intended (by God) to do. Criticism: Today, Aristotle is at times criticized for going too far in deriving laws of the universe from simple observation and over-stretched reason.

16 However, civil or human laws should be set aside if, in the minds of wise men, they contradict the laws of nature. Cicero ( B.C.) Greek Philosopher Law is the mind and reason of intelligent man, the standard by which justice and injustice are measured.

17 Justinian ( A.D.) Roman Emperor law can be divided into universal laws of nature and civil laws. Natural law, in Justinian s view, ensured that people were born free. Therefore laws that permitted slavery were a violation of natural law. Justinian therefore reformed a large number of Roman Laws In 528 Justinian appointed a commission to make a new collection of imperial constitutions. The result was to gather together Roman law into one code, known as the Justinian Code, which was divided into four parts: 1. The Institutes served as a textbook in law for students and lawyers. 2. The Digest was a casebook covering many trials and decisions. 3. The Codex was a collection of statutes and principles, and 4. The Novels contained new proposed laws. This legal code became the foundation of law in most western European countries.

18 St. Thomas Aquinas ( AD) Christian Theologian Law is the mirror of the natural world order made known to humans via their own reasoning and divine revelation through Christian prophets. ETERNAL NATURAL HUMAN

19 Positive Law Law which is based upon human reason and authority

20 Thomas Hobbes ( AD) English Political Philosopher 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. Hobbes' believed it was unnatural for man to put himself under the control of others, he nonetheless felt that it was rational to have a government.

21 Social Contract Theory The 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. Given a choice, a typical person would give up certain of his rights in exchange for peace and security. He would put himself under government and follow its rules, fairly made and fairly enforced. This arrangement is in the nature of a contract - an exchange. Citizens provide obedience and compliance in exchange for greater security and liberty.

22 John Locke( ) English philosopher According to Locke (often referred to as The philosopher of freedom ) God created man and we are, in effect, God's property. Locke is a well-known empiricist, as is indicated by his infamous view that we are all born a tabula rasa (blank slate), upon which our experience writes our nature.

23 Jean-Jacques Rousseau ( ) Genevan philosopher Rousseau asserted that man is neither inherently good nor bad when in the state of nature (the condition that exists outside of civilization), but is corrupted by society. Thus, people should only conform with society when such conformity is consistent with the secret principles which constitute their core identity. Rousseau believed that to act inauthentic is selfdestructive.

24 Jeremy Bentham ( AD) English philosopher and jurist Utilitarianism: Humans are motivated to seek pleasure and avoid pain. Thus, law should seek to produce the greatest happiness for the greatest number of people. A system of law has the following requirements: i) authoritative body, ii) legal commands, iii) an imposed duty or obedience, and iv) enforcement through penalties.

25 John Austin ( AD) English philosopher and jurist Legal Positivism: asserts that it is both possible and valuable to have a morally neutral theory of law. The three basic points of Austin's theory of law are as follows: i) the law is a set of commands issued by an uncommanded commander (aka the sovereign); ii) such commands are backed by sanctions (i.e. penalties); and iii) a sovereign is anyone who is habitually obeyed by the people. Natural law is too subjective and would lead to anarchy. Only positive law could provide an objective standard for human conduct.

26 YOUR TASK Early Codified Law After viewing each of the following legal codes, find specific examples of how each is present in the Canadian legal system today

27 Code of Hammurabi One of the earliest known collections of codified laws Hammurabi = King of Babylon (1700 BC) 300 laws inscribed on stone pillars Basic premise = an eye for an eye Principles: Retribution = justice based on vengeance and punishment Restitution = payment made by the offender to the victim of a crime.

28 Mosaic Law Approx BC Moses = biblical figure Ten Commandments spoken by God and etched in two stone tablets by Moses Moral foundation of Judaism and Christianity Principles Thou shall Thou shall not

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30 Law of Twelve Tables Approx 450 BC Compilation of rules/truths Inscribed in a dozen bronze tables set up in the Forum Centerpiece of the Roman Republic Used for over 1000 years Principles: Should control all facets of society Must be created by government

31 Justinian Code Second set of Roman laws Emperor Justinian 565 AD Made justice system available to everyone Principles: Social unity (rich and poor) Innocent until proven guilty

32 French civil code Napoleon 1804 Similar to Justinian Code (looks at laws of persons, property, and freedoms) Basis of Quebec legal system Code Napoleon

33 Trial by Ordeal The Trials Used only when the sentence for guilt was death required torture to determine guilt or innocence Trial by Oath Friends of the accused would swear on the Bible Cornerstone of the jury system Trial by Combat Determining guilt/innocence by fighting. Adversarial system = evidence presented by two opposing parties to an impartial judge/jury

34 Led to 'RULE OF PRECEDENT' application of previous decisions with similar circumstances Common Law 1066: William the Conqueror defeats King the Battle of Hastings and gained control of England. William's grandson, Henry II, tries to bring consistency to the law by employing circuit judges Judges hear cases and record decisions to establish a method of dealing with cases (common/case law) Judges would use these reports as examples in deciding their case ('stare decisis' stand by decision)

35 Magna Carta Signed by King John (Henry II's son) in 1215 Established political and civil rights for the people (all people.. even poor John!) Introduced Habeas Corpus ('you must have the body') designed to prevent unlawful arrest and release people who were unlawfully placed in prison.