LEGAL THEORY

Sources Understanding the Law,

Dimensions of Law, Canadian Legal Information Institute (CanLII)
CRT - https://spacrs.wordpress.com/what-is-critical-race-theory/

Ancient Legal Theory

Natural Law the theory that all humans are

derived 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
society will function

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
Society has a right to determine what it deems morally
unacceptable and to use the law to formally express its view

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)
Corrupting youth, and 2) Not believing in the gods
whom the state believes in

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
(modern scientific method)

Aristotle 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

Ultimately, help citizens use their faculty of reason
to reach their greatest potential (good life)

St. Thomas Aquinas

1224-1274
Identified 4 kinds of laws:

1.

Eternal Law

2.

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)

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

-each person should try to preserve his/her life

Do not do harm to others, assist the poor/sick

St. Thomas Aquinas

3.

Divine Positive Law

4.

Human Positive Law

This is law that has been revealed in the

scriptures (Ten Commandments)
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 the common good,

Your Turn!

Should laws ever be

ignored?

Former Gun Registry?

Physician Assisted
Suicide? Blood
Transfusions?
Kim Davis?

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 governments role is to prevent one
from harming others
Introduced as part of the religious/political
upheaval in 16th-17th century Europe
No moral purpose, and not a matter of
conscience challengers of the law would
face penalties

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

Leads to undercover work (drug dealers/buyers,

prostitutes, etc.)

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 alone had the power to enforce law/his will

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
Revolutions

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 objective standard, and that once passed,
people would have to obey for the good of
society This would prevent people from
subjectively judging laws

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 happiness; wrong as they tend to
reverse happiness

Your Turn!

Compare/contrast?

Pros and cons of Natural/Positive Law?

Examples in our society?

Which would you subscribe to?

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 its the
same case
These decisions become case law will have an
impact on future court decisions

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
Problems with this concept?

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 favour a social class?

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 60s Womens 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
SCC1982)
Is all this still true? ThoughtsOther legal milestones for
women? (Justine Blaney) Is law still biased against women?

Critical Race Theory

Derrick Bell, Alan Freeman, and Richard Delgado

Arrived in 1980s 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 of colour, different sexual orientations,
Aboriginal perspectives, etc?

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
Laws should focus on equality, not oppression

Concept of Restraint of Power

Philip Selznick argued the validity/quality of a

countrys laws does not lie in the exercise of
power/control, but rather the predictable
restraint of those using the power
Essentially, a fair and lawful society has
checks to prevent those in power from
abusing it (There are people that CAN question
the law/procedures)

Application of Legal Theory

Canada is more closely aligned with Selznicks

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 Lawno one is above
the law
Roncarelli v. Maurice Duplessis Abuse of
legal power

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 reasonable limits prescribed by law
(section 1 & 33 (notwithstanding clause))

Your Turn!

Positive Law or Natural Law Which are you

and why? How is modern law theory
influenced by your choice (positive or natural)?
How does Canadian society in general react to
views that challenge our normal way of
thinking?
Your Turn First Nations and legal theory