LAW 843 Natural Law PPT - Capital University Law School

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Transcript LAW 843 Natural Law PPT - Capital University Law School

JUDGING and the NATURE OF
JUSTICE
“It is the mark of an educated
mind to be able to entertain a
thought without accepting it.”
Aristotle
WHAT IS LAW ?
LAW
Enforceable rules
governing relationships
among persons
between persons and
society
EVOLUTION OF LAW
The Code of Hammurabi
First written legal code
Developed in Babylonia
About 2000 BC
MOSAIC LAW
Basis of US Legal System
Heraclitus
About 600 BC
All human law came from some
divine inspiration
SOCRATES
• About 400 BC
• Recognized the tension between law which is
“just” and law which is merely what
government says it is
Plato’s Minos
• SOCRATES “Law is the correct
judgment of the state.”
• States legislate a concept of justice and
particular conceptions of justice.
• Only decrees based upon knowledge of
objective justice and injustice can
count as true laws
Aristotle
The Father of “Natural Law”
“At his best, man is the noblest of all animals; separated from law and
justice he is the worst.”
NATURAL LAW
Natural law comprises the essential rules
without which no human society could be
considered just: rules good for all times
and places.
NATURAL LAW
 Assumes there is a higher or
universal law that applies to all
people everywhere
 Assumes that law, rights and
ethics are based on universal
moral principals inherent in
nature discoverable through the
human reason
Nicomachean Ethics
“The law is reason, free from passion.”
Law = when reason is used to analyze
human nature and deduce binding
rules of moral behavior.
Certain rights or values are inherent in
or universally cognizable because they
are created by nature.
“The only stable state is the
one in which all men are
equal before the law.”
Aristotle
CICERO
Roman Statesman
About 100 BC
Famous Definition
of
Natural Law
CICERO’S “Natural Law”
True law is right reason in agreement
with Nature; it is of universal
application, unchanging and
everlasting; it summons to duty by its
commands, and averts from
wrongdoing by its
prohibitions....There will not be
different laws at Rome and at Athens,
or different laws now and in the
future, but one eternal and
unchangeable law will be valid for all
nations and for all times...”
ST. THOMAS AQUINAS
About 1265
“Law; an ordinance of reason for the
common good, made by him who has care of
the community.”
Summa Theologica
 Law is the rational creature's participation in the
Eternal law. Yet, since human reason could not fully
comprehend the Eternal law (God), it needed to be
supplemented by revealed Divine law (Church).
 All human laws were to be judged by their
conformity to the natural law.
 An unjust law is not a law, in the full sense of the
word. It retains merely the 'appearance' of law
insofar as it is duly constituted and enforced in the
same way a just law is, but is itself a 'perversion of
law’.
HOBBES AND LOCKE
1700’s
British
philosophers
Proposed a theory
of law building on
natural law
principles
Hobbes and Locke
Government and the people have a
“social compact (contract)” where
people possess rights and government
protects the rights
Declaration of Independence
We hold these truths to be self-evident, that all
men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of
Happiness.—That to secure these rights,
Governments are instituted among Men, deriving
their just powers from the consent of the
governed,—That whenever any Form of
Government becomes destructive of these ends, it
is the Right of the People to alter or to abolish it,
and to institute new Government, laying its
foundation on such principles and organizing its
powers in such form, as to them shall seem most
likely to effect their Safety and Happiness.
US CONSTITUTION
US CONSTITUTION
The US Constitution does not grant
rights, but rather gives government the
power to protect those rights that the
“Founding Fathers” believed were
fundamental and inalienable for all
people
“Live your life as
though your every act
were to become a
universal law.”
Immanuel Kant
LEGAL POSITIVISM
• No inherent or necessary connection
between law and ethics or morality
• Law is conceptually separate from
moral and ethical values,
• Law is posited by lawmakers, who are
humans
• Law is ultimately a matter of human
custom or convention.
LEGAL POSITIVISM
• Whether a society has a legal system depends
on the presence of certain structures of
governance, not on the extent to which it
satisfies ideals of justice, democracy, or the rule
of law.
• What laws are in force in that system depends
on what social standards its officials recognize
as authoritative; for example, legislative
enactments, judicial decisions, or social
customs.
LEGAL POSITIVISM
The fact that a policy would be just,
wise, efficient, or prudent is never
sufficient reason for thinking that it
is actually the law, and the fact that
it is unjust, unwise, inefficient or
imprudent is never sufficient reason
for doubting it.
LEGAL POSITIVISM
• Law is a matter of what has been posited
(ordered, decided)
• Positivism is the view that law is a social
construction.
JEREMY BENTHAM
1750’s
“Nature has placed mankind under the
governance of two sovereign masters,
pain and pleasure.
It is for them alone to point out what we
ought to do, as well as to determine what
we shall do.”
UTILITARIANISM
UTILITARIANISM
 the right act or policy was that which
would cause "the greatest good for the
greatest number of people“
 also known as the principle of utility
LEGAL POSITIVISM
• The Province of
Jurisprudence
Determined (1832)
• Influenced by
Bentham
Austin's theory of law
• the law is command issued by the
uncommanded commander—the
sovereign;
• such commands are backed by threats
of sanctions; and
Law is created by position
LAW
JUSTICE
MORALITY
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JUSTICE
MORALITY
JUSTICE
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JUSTICE
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