Understanding Jurisprudence, Philosophy, and Law

LECTURES LECTURES

Jurisprudence interpretation of the nature and purpose of Law. Jurisprudence is the philosophical It is your idea or beliefs about what the purpose of the law should be.

Philosophy is often divided into two main streams or schools of thought: Natural Law (natural Law theorists) Positive Law (positive law theorists)

Law: Law: A body of enforceable rules governing relationships among individuals and between individuals and their society.

The theory (idea) that human laws come from eternal (never ending) and unchangeable principles that regulate the world. We become aware of these natural laws through reason. (they do not have to be legislated) Ex. A mother takes care of her newborn. That we would help those in need. There does exist a moral imperative in the law

Natural Law: ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children). Natural Law: A system of universal moral and

Law is a body of rules formulated by the state that the citizens are obliged to follow for the good of the state. 1. Ex. traffic laws Paying taxes Not parking in a designated fire route Positive Law: Positive Law: The written law of a particular society at a particular point in time. Ex. traffic laws Paying taxes Not parking in a designated fire route There is no moral imperative to the law. (no duty to consider moral senses of the time)

Legal theorists who present or understand their theories as positivist , or as instances of legal positivism , take their theories to be opposed to, or at least clearly distinct from, natural law theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at 2395).The term positive law was put into wide philosophical circulation first by Aquinas, and natural law theories like his share, or at least make no effort to deny, many or virtually all positivist theses except of course the bare thesis that natural law theories are mistaken.

Positive law can exist with no natural law. Natural law theory is not separate from positive law. Positive law theorists gained strength in England at a time of widespread political, social and religious upheaval. This period of violence, fear, confusion and ignorance affected the way thinkers of the time viewed the origin and purpose of law.

Moral absolutism absolute standards against which moral questions can be judged, and that certain actions are right or wrong, devoid of the context of the act. "Absolutism" is often philosophically contrasted with moral relativism. Moral absolutism is the belief that there are

Moral Relativism is a belief that moral truths are relative to social, cultural, historical or personal references, and to situational ethics, which holds that the morality of an act depends on the context of the act.

which would you associate with Natural law and which with positive law? Moral Absolutism ? Natural Law Natural Law Positive Law Positive Law Moral Relativism ?

Natural Law Theorists All believe that the law has a moral imperative

It is the mark of an educated mind to be able to entertain a thought without accepting it. The two qualities which chiefly inspire regard and affection [Are] that a thing is your own and that it is your only one. At his best, man is the noblest of all animals; separated from law and justice he is the worst. Dignity consists not in possessing honors, but in the consciousness that we deserve them.

The educated differ from the uneducated as much as the living from the dead. The roots of education are bitter, but the fruit is sweet. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly.

We are what we repeatedly do. Excellence, then, is not an act but a habit. It is the mark of an instructed mind to rest satisfied with the degree of precision which the nature of the subject admits and not to seek exactness when only an approximation of the truth is possible. Wishing to be friends is quick work, but friendship is a slow-ripening fruit.

Democracy arose from men's thinking that if they are equal in any respect, they are equal absolutely. Without friends, no one would want to live, even if he had all other goods. Plato is dear to me, but dearer still is truth. Even when laws have been written down, they ought not always to remain unaltered.

The whole purpose of the law is to encourage people to live good, virtuous lives Believed in a God, urged people to care for the soul over money and indulgence. Obey the law even in the face of death The whole purpose of the law is to encourage people to live good, virtuous lives Obey the law even in the face of death. .

Plato Humans are social by nature / like political animals Organized society is a natural institution The state did not exist only for economic reasons. Justice in the individual is achieved when the lower powers (needs: food, sex, aggression, passion) are ruled/controlled by your higher powers (intellect) This is achieved through reason. Justice in the state is achieved though law. Believed that education was the answer to making people good (His logic: Anyone who really knew what good was, would do good) He believed that all men had the potential to be good.

Aristotle Humans are like political animals but set apart by their ability to use reason and to rationalize. By following reason and not their passions, people can reach their potential. Believed that Human ability to reason was a spark of the divine (from God) If reason is divine, then, in comparison with man, the life according to (reason) is divine in comparison to human life. Believed that education alone was not enough. We had to be scared of law and punishment to really obey law. Believed that morally, people fall into 3 categories: Born good (very few) Educated to do good (very few) Ruled by their passions and desires (majority) Believed that morally, people fall into 3 categories:

A Christian Philosopher and Professor at the University of Paris. Divided Law into 4 categories: Eternal Law Natural Law Divine Positive Law Human Positive Law Both Natural law Both Positive law

Furthermore, Thomas distinguished four kinds of law: eternal, natural, human, and divine. Eternal law is the decree of God that governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason. Natural law, of course, is based on "first principles": . . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . ..

Bentham believed that when left to our own devices, we try to achieve maximum pleasure and happiness in our lives. A law should be evaluated by it s utility (usefulness) to society as a whole. Basically; a truly just law provides the greatest happiness [for] the greatest number of people. Utilitarianism Hedonistic Calculus (a formula) Hedonistic Calculus (a formula) Utilitarianism John Austin (same as above plus ) John Austin (same as above plus ) Law should be completely separated from morality. Every law had to be obeyed, no matter what. John Stuart Mill