Theories and Concepts of Law

CLN 4U1

Theories and Concepts of Law

Until modern times, most theories of law could be grouped under two headings: Natural law Positive law

Natural Law

The theory that human laws 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.

Socrates and Plato

Socrates (470 – 399 BCE) was a Greek philosopher who lived in Athens during its “golden age”.

Socrates believed that the law demands that each person do what is right and avoid what is wrong.

Socrates and Plato

Socrates never wrote down any of his thoughts, although we know of his teachings from the writings of his pupil, Plato.

Plato believed justice exists when all the powers of an individual or society work together for the good of the whole.

Aristotle Just as Plato was a student of Socrates,

Aristotle (384 – 322 BCE) was a student of Plato.

Although Aristotle was strongly influenced by Plato, he disagreed with his teacher in several respects.

He believed that what sets humans apart from other animals is their reason, which allows them to tell the difference between good and bad, the just and unjust.

Aristotle

This process of using reason to analyze the natural world from observation is known as rationalism.

Plato vs Aristotle

Plato thought that education was the answer to making people “good”, and that anyone who really knew what good was would do good.

Plato vs Aristotle Aristotle disagreed. He felt that, morally speaking, people

fell into three classes: Some people are born good Some people can be made good through

education But the majority of people are ruled by

their passions, and education alone will not make them good. Only law can do that.

St. Thomas Aquinas Aquinas (1224 – 1274) was a

Dominican friar who taught for several years at the University of Paris.

Aquinas identified four kinds of law: Eternal law Natural law Divine positive law Human positive law

St. Thomas Aquinas Eternal law

The body of laws by which God created the universe and keeps it in operation.

This type of law exists outside time and will never change.

Natural law The eternal law as it operates in humans. We know this law through our faculty of

reason and can see its workings in the natural world around us.

St. Thomas Aquinas

Divine positive law The part of the eternal law that has

been revealed in the Christian scriptures.

Human positive law Natural law applied to human

activities

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 as a whole.

Thomas Hobbes Thomas Hobbes (1588 – 1679) saw the

violence of the English Civil War first hand and fled to Paris in 1648.

He believed the state of nature was nothing more than a state of perpetual war as the strong and intelligent plundered the weak and the slow, and weak people banded together to attack those they feared.

Thomas Hobbes The result was that in the state of

nature people led lives that were “solitary, poor, nasty, brutish and short.”

Thus in the interests of self-preservation, people agreed to surrender their rights to the sovereign or king who would maintain law and order.

John Locke

John Locke (1632 – 1704) in his Two Treatises of Government (1690) recommended that if the king violated the natural rights of the people, then the people were justified in rebelling and in replacing the unjust government with one that would respect their rights.

John Locke

The most fundamental rights were: Life Liberty

Freedom of thought, speech and religion Property

The people handed over to the state the authority to preserve their fundamental rights.

Jeremy Bentham

Jeremy Bentham’s (1748 – 1832) analysis of human nature led him to believe that people, left to their own devices, tried to achieve the maximum amount of pleasure and happiness in their lives.

Jeremy Bentham

He thus believed that a truly just law provides “the greatest happiness for the greatest number” of people.

This became known as utilitarianism Utilitarianism

The theory that the law should achieve the greatest good for the greatest number of people