Transcript Intro to Natural vs Positive Law - macdonald

Defining Law:
• Law can be divided into three different
contexts
• as a legal concept
• as a legal system
• as a set of rules
Legal Concept
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associated with abstract qualities such as:
Justice
Legitimacy
Equality
Morality
Legal Concepts
• we value laws on the basis of their qualities rather
than on the purposes they were meant to achieve.
• Ex:
– Euthanasia,
– death penalty,
– marijuana
• What are the purposes of the above laws?
• Quality of the law: Can they be simply determined
acceptable/unacceptable
Legal system
• Comprised of the facilities, institutions, agencies, and
procedures involved in operating the law
• Ex: police, courts, jails, ADR
• Yet, (…numbers reveal that people with serious
mental illness are over-represented by a factor of
about 5 in Canadian jails (Allodi 1977, Gingell 1991).
Should we be reducing the use of prisons and looking
to alternate methods of dealing with criminals?
A set of rules
• enacted by government bodies
• substantive laws (prescribe our rights and freedoms)
obligations
• Ex: Y.O.A, Criminal Code
• ideally should reflect the values, ideals and purposes
of the people.
• law considered as a set of rules established by a
governing authority, including the values and
concepts that inform those rules, and/or the various
institutions making up the system which implements
the rules. (Who owns the ball?)
The Matrix of Jurisprudence
• Concepts (democracy, sovereignty, rights, equality)
• Institutions (courts, parliament, jury)
• Principles (Innocent until proven guilty, No person is
above the law, Rule of law)
• Philosophy (you are currently researching this)
• Theories (natural law, positive law, divine rights,
social contract)
• Historical Development (common law, civil law,
criminal law)
Jurisprudence
• Jurisprudence is derived from the latin words
juris, meaning right or of law, and prudens,
meaning skilled.
• Jurisprudence therefore means “knowledge or
skill in the law”.
• Jurisprudence provides a way of thinking
about the law and it helps to predict the
future path of legal thinking.
Jurisprudence
• Law as a study of jurisprudence may be
interpreted as an interlocking set of beliefs
and ideals that have evolved over time to
control our behavior and protect our interests.
• Has been compared to a great puzzle which
has many interlocking idea’s and theories
• Philosophy is the process of critical inquiry
into the concepts of a particular branch of
knowledge.
Continued
• What is “logic”? What is “reason”?
• Through the study of legal philosophy, we
learn both what to think and how to think
about the law.
• Jurists are people versed in the law. Jurists are
people who write and teach about the
philosophy of the law.
• We are currently here…
To conclude…
• Jurisprudence is never exact. It is like a
weathervane indicating to us in what direction
the winds of justice may presently or soon be
blowing.
• As we move forward, always think of the
necessary questions to ask about given cases,
topics, or issues. That’s what law is all about.
From this point on, you are “young lawyers”.
Legal Theories
Generally, there are two views of
“just and unjust” that are reflected in
our legal system
Positive Law
•
Right and wrong are what we as a group,
culture, nation, or civilization decide they
are. The only way to define what is just or
right or wrong is to look at what the law
says. This is called positive law or legal
positivism.
Natural Law
•
Right and wrong are concepts that are
independent of human experience.
Therefore, the laws proclaimed by humans
who happen to be in control may not always
command obedience. The explanations of
how humans perceive these never changing
concepts depend on the philosopher that is
being studied. This is called natural law.