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 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 -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 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 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)?