Summaries of classes

 

Please note that these are summaries, not 'the notes' for the class. These have been prepared by students in the class, and I have posted them here, unchanged, as a ready reference for those who could use a quick idea of what topic(s) have been discussed. But there is no guarantee of accuracy (or even proper spelling)! Caveat lector!

 

 


September 11 - Melissa Aycock

What is law?

 

       Has to be something, there are various perspectives about law that coexist

       Jurisprudence-philosophical reflection on law

       It is ambiguous

       It is rules to protect people, written down somewhere

       Potentially written in a gov’t officiated document

       Made by Parliament (House of Commons), head of state, municipalities, etc.

       If you break the law in this case, you aren’t following (x) statute

       Natural laws-ex. The law of gravity, law of conservation of mass, etc.

       Exist before they were “discovered”

       Religious law-such as the ten commandments

       God as a divine legislator, and laws in religious texts like the Bible

       Customary law-practiced in a community in particular, commonly acknowledged

       Moral laws (Kant)

       As rational beings we “discover” them

       Can immoral laws exist?

       There were laws made during WWII in fascist Italy and nazi Germany that condone terrible things, but they were still passed legally

       If there are immoral laws, do you have to follow them?

       You need some amount of fear backed by an authority for some laws

       Ex. you need fear of sanction for murder but maybe not inheritance law

       There are legal systems that are formal, which may be needed if you want more consistent/universal/coherent laws

       Law deals with social problems, as well as managing social relationships such as contracts

       Have to examine the reasons why law is applied

       There are sanctions and enforcement of the law in statute law, as well as duties such as being a parent

       Law might make us act morally, but it might not change your personal morals

       Laws can regulate what happens in (x) territory, so if you’re in Canada you should follow Canadian law

       If you disagree with the laws of a certain place, you can leave for a place that accommodates your expectations of the law

       What if you give up citizenship in the country you live in? Do you agree to the laws of the place you live in when you’re born?

       What the law regulates can change, such as who you could marry legally in Canada in the past

       Legislators can make laws, but they can make mistakes

       Others (such as judges) can strike down laws (in statute law) if they feel it has mistakes

       Law is how we relate to one another

       1) engaged in contracts, promises (relationships), trades, exchanges as private citizens

       2) by common purpose or interests

       3) distribution of burdens and benefits (taxes, voting) whether you agree to them or not in legal terms

       4) taboos, what you shouldn’t do, what shows disrespect for a place/custom/etc.

       Law is created by

       Natural rules, ex. Parents should look after their kids

       What is customary, which is accepted by people living in the area where that custom prevails

       When law goes well, it is considered just/justice

       Plato-justice is everything doing their proper role (in society)

       Aristotle-you get in proportion to your worth, justice is a habit or virtue that aims at the common good

       J.S. Mill-justice is determined by the principle of utility (the most happiness for the largest number of people)

       Should justice be based on need, ability, the marketplace?

       If all the relationships in law break down, someone has to fix it, brings up the problem of how to make people obey the law

       Fixing law depends on what you believe human beings are like

       Are humans just meat in motion? Or are they rational and logical beings?

       You’ll be treated what you’re like i.e. if we are just meat in motion, you could fix things by having someone who has more power than the rest vs. logic for rational human beings to see the value in a law

       Law depends on theories of human nature

       Law hinges on political philosophy, and human nature

       Solution to fix a broken legal system-a sovereign (Hobbes)

       A sovereign incorporates people and wields civil and religious power

       They can be a king/queen or a group of sovereigns




September 13th, 2017, Justin Belanger

Readings:

·        Aquinas – Skip to “I answer that” section for easier understanding. Ask yourself, how will this help me understand what is law?

·        Hobbes – Attempting to construct an understanding from scratch. Talks about civil law and why people would follow it.

·        Austin – Modern version of Hobbes but focused on law.

·        While reading ask yourself what is law? What is the law? What is the understanding of law by others?

Review from Last Class:

·        Ambiguity & Breadth - What is the law in fact?

·        Political Philosophy – How do people relate -> rules or laws -> custom, reason -> what if broken? When we break the law we also want to deter and restore but also want to make what was done wrong a right through justice.

What makes a law a law?

Power(Ability) vs. Authority(Legitimacy) The idea of sovereignty (Democratic leaders, Monarchy leaders)

Rule of law (Different then rule by law or decree).

               A thin and a thick (substantive) sense [also functionally?]

               Thin law must be:

§  Publicly declared – and publicly applied (e.g. imposing sanctions)

§  General (i.e. consistent and comprehensive)

§  Applied equally to all (rich, poor, leaders, ordinary citizen)

§  No one above the law; government also subject to it.

§  “Certain” – i.e., certainty of application

At the end of the day the law rules over all the people in the same area. A law consistently not enforced cannot be enforced out of nowhere, it is no longer a law.

Thick law includes:

§  All the above, plus certain individual rights.

Example: No freedom of speech for all people. This law could be passed officially through the correct processes and checks all the criteria but is not a just law. Thick law grants individual rights to support just laws.

In the case of governments being below or above the law certain things are different. “The government must be entitled to govern free from tortious liability. It cannot be a tort for government to govern. However, when a government is supplying services, that is, doing things for its people other than governing it should be subject to ordering negligence principles.”

Parliament is Sovereign

               Statute Law & Common Law

§  Common law can be based on ‘found’ in the past decisions and would be supported. Which means that it is predictable, and fair. This also means that it can be flexible, and can be changed over time. New facts can alter rulings in the future. Assisted suicide laws as example.

 

              

September 18, 2017 --   Hanna Bergman

commutative justice deals in exchanges or promises

distributive justice deals in distribution of benefits and burdens

Canada's sovereign = parliament
- 1) senate 2) house of commons
- restricted by a constitution
- limited vs inalienable rights
- sovereign makes laws but does not enforce them
- section 33 not withstanding clause (supreme court)
*sovereign over jurisdiction
- everyone subject to law as an individual

common law added to statutory law
precedent: how it was interpreted in the past
somewhat flexible - judgements in case law and certain refinements

Civil Law
- example of Quebec civil code *borders matter
- written civil code
- development of Roman Law (canon law) through Napoleonic Code
- broad, general principles rather than statutes
- private vs public (affecting society as a whole)
- lower standard of proof vs high standard beyond reasonable doubt
- deals with private individuals (what affects 2 or more people)
- examples: torts, property law, negligence, family law, labour law, commercial law
- OJ Simpson sued in civil law but found not guilty in trial

Ambiguity of rights

 

September  20 - Laura Blinn

 

RIGHTS

Natural

-     Not given to you

-     Life (people have the right not to have their life taken arbitrarily)

-     Liberty

-     Security of person

-     Freedom of conscience

-     To be treated as a person

-     RECOGNIZED. Attained by just simply being a human being

 

Civil (Custom)

-     Equality (Juridical)

-     Association

-     Freedom of speech, expression (a part of your nature, however what you can express is limited)

-     Depends on social context

-     Right to a just wage; without this you cant have natural rights.

 

State (Given rights)

-     Euthanasia

-     Education

-     Medicare

-     Can be taken away

 

DIFFERENCE OF RIGHTS AND LIBERTIES

1)     Rights: Duty. Has limits (a doctor has the power to turn down euthanasia right to life)

2)     Liberty

3)     Powers: You have the power to do things, even if you should not (a criminal who has escaped has the power to run)

4)     Immunities


September 25th -- Catherine Culhane

 

3 Theories for the next few weeks:

Natural Law Theory  - Aquinas, Fuller essay next couple of weeks – whether law has to have an ethical character

 

Positivism – Hobbes, Austin (influenced by Bentham), H.L.A. Hart (legal theorist), Hart vs. Fuller on the morality of law – independent of ethics?

 

Legal Realism – Oliver W. Holmes Jr.

 

-        No one theory is endorsed by an legal organization

-        In North America – mainly positivism, other 2 exist more in the United States but not so much in Canada

 

Natural Law Theory

-        Probably oldest – ancient Greeks, Indian and Asian traditions

-        Not dominant view anymore in English speaking countries

-        Classical view found in Aquinas

 

1)    What is law?

- Binding

- In the Criminal Code of Canada

- law is not a rule but has some properties of rules

- 4 characteristics

     a) it commands (of reason)

     b) directed to a common good (happiness)

     - law no allowed to be for private good, dictators have these kinds of laws

c) laws can only be created by the person who has care of the common good/community, the sovereign

d) has to be promulgated – publicly announced

 

2)    What is natural law?

-        Set of general principles that are basic, fundamental, ad objective, descriptive and prescriptive

-        Descriptive because it reflects our nature, if you can find out what human nature is, you can determine how they should act

-        4 types of law (natural, positive, ius gentium, eternal)

-        Aquinas has a dynamic view of human nature (think, sense of good, social, must have a body)

-        Common good is a good ethical value – supports the idea that law is ethical

-        Authority is legitimate, use of power and force, force does not equal authority

-        Can disagree with facts

-        What is the aim of law?

o   Order into society

o   Aquinas thinks it provides conditions for you to be a good person

§  Law’s purpose is to make you good/better

§  Lead its subjects to virtue

-        Mortal, self aware, free beings

-        To find out human nature – use self now to have an ideal for what one should be

-        Infant has potential for these abilities (future state), old people had these abilities (past state)

-        End purpose tells us what nature is, what the thing will become

-        Part of what human beings are is what they have been and what they will become

o   Everything has a past and a future

o   Nature is dynamic

o   Does nature teach you what you ought to be? Is related to what you are now and your potential

-        Not in nature for humans to fly around the room with wings sprouting from their back

-        Discussing nature is what you ought to be, and law is related as it describes what you ought to be

-        Has to be related to the king of thing you have the potential to be – no use having laws for flying around on wings if one doesn’t have the potential for wings

-        Law is related to good and bad because humans have the potential to be both

-        Law applies to everyone equally

-        Law has a neutrality – in general how people ought to behave, not specific to individuals

-        Ought to do things that will benefit you

-        Inclinations to be social, violent, self interested, to family, and reproduction, knowledge, and peace

-        If you can find proper acts and ends, you can understand how inclinations lead to your ends

-        Something that is in us – natural

o   How?

§  Ontologically – in our being, not imposed on us, reflects what we are, who we are

§  Epistemologically natural – how we know it, horses have natural laws but they are different laws from humans because they are different beings, known naturally, can’t depend on an authority – not everyone knows the natural law but in all people

-        Like our knowledge of scientific laws – discovered not invented

-        Either a thing is or it is not

-        Don’t have universal experience, but assume it to be universally true

-        If it is true, then there is a foundation to build a formula, if not true then you cannot

-        If you don’t know the truth of ‘something is either true or not true’, then you can’t know anything

-        Every effect has a cause

-        Science depends on the truth of this claim

-        Can’t be based on experience because experience is too limited

-        These are things we know as a basic principle, but we could never prove them to be true

-        Know them directly

-        Law needs basic principles that are true at all times

-        Do good and avoid evil – 1st principle

-        How many principles?

-        Some always true, some won’t be universal

-        How broad is natural law?

 

3)    Are there other kinds of law?


September 27, 2017 - Sanuel Gan

 

Natural Law Theory

-        Natural law is part of our being; it is in us; ontological

-        It is the same for beings of the same kind (humans natural law vs. Animals natural law)

-        If you have a different nature, you have different rights. These rights can overlap though as illustrated below

Animal rights: cannot be abused, don’t have right to vote

Human rights: cannot be abused, can vote in certain circumstances

 

Aquinas says natural law is known natural like scientific laws (CONnaturally)

1st principle à do good, avoid evil (general principle of natural law – pg 8 in Aquinas reading)

-        Must consider: what is good? What is evil?

2nd principles must use reason and experience to find

 

Law tells us ethically what we ought to do, but also informs us politically what to do in society

-        Law of self preservation

o   Right to life

-        Law of liberty

o   Right to physical liberty

-        Good to have a family

-        Good to gain knowledge

 

Limitations because it doesn’t consider life in society

 

Ius Gentium – Law of peoples

-        Law of nations, law of people living in society

-        Natural laws applicaple to people living in ANY political society

 

Society is like a house in that it requires certain things (door, walls, roof, floor) in order to be what it is.

-        Ius Gentium is laws like: No undue harm, no theft of property, marriage and relationship, inheritance

-        Created with reason, but are necessary in any society

-        Internal laws that are generally found in common across societies such as laws against incest

 

Ius Gentium as related to International relations

Must consider things like

-        UN

-        Citizens outside of country should be treated well

-        Foreign citizens in a country should be treated well

-        In times of war, considerations for prisoners

 

Look to Ius Gentium to “create” rules (discover them like scientific laws)

-        Considered a “right” way to conduct war

-        Ambassadors are not to be harmed

-        Reasonable rules of conduct

 

Positive Law

-        Not from nature (Posited, or placed)

-        Extension of law that is rooted in nature

-        Civil codes are often positive (driving laws, tax laws, double parking on main street???)

-        Should be stable, constant

-        Positive laws deal with “how to manage things” and make things better

-        Must have in mind a common good (safety for traffic laws)

-        Must be passed by an authority (legislature)

-        Positive laws cannot violate natural law

o   If it does violate natural law, “not really a law” because doesn’t have the characteristics of a law

-        Positive law has moral character

-        Must consider what is the standard of reason? Can we all agree on what is reasonable? What is our nature/natural state?

 



Hobbes & positivism

-        Considered a positivist, meaning thought All law is positive law

-        There is nothing in nature that is forbidden, nothing that tells you what you ought to do

-        No free will, no purpose for humans

-        Humans are biological machines

-        Operate according to Desire & Aversion

-        Life is about desire until we cannot anymore (die)

 

Before there is society, humans together are like animals (Right of nature)

-        Create hierarchy based on ability to claim our personal desires, solitary

-        Desire for stability/safety

-        Have a right to every thing and every body

-        Liberty à absence of external impediments

-        No security in this state of life

 

In society:

1st law of nature à seek peace and follow it

2nd law of nature à to make a contract/covenant to law down right to all things. Treat others only as you would have others treat you

 

Conditions are that all must be willing to follow the above so far as they think it is to their benefit

 

 

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October 4th, 2017 – Virginia Gibbins

 

-        Historical intro to legal positivism

-        Law is “set down” by a sovereign and has to meet certain conditions

-        Order vs. Law

o   Orders are terminated after a certain amount of time

o   Orders are an exercise of power they do not have legitimate power over you

o   Laws have to have legitimate power

 

-        Charles I was put on trial and executed

-        Good theory on what government could be

-        Neutral when it comes to political situation doesn’t matter if you’re a royalist or republican

-        Theory of how sovereignty works and how/when to obey it

-        What motivates people? Desire (think lord of the flies)

-        Reason is just a tool to get our desires

-        We want to have our desires satisfied it is our reason that tells us to take precautions

-        Desire to have some stability and no harm to ourselves

-        Seek peace – war is undesirable

-        Make promises – if I want safety and peace I need agreements

-        Keep your promises

-        The reason we want to keep our promises is in fear of the cause – the motivation for self preservation

-        I have a right to everything that will fulfill my desire including people

-        Laws are made by reason in which I consent – it is the consent that binds the law

-        Need enforcement to the laws of nature

-        Reason tells us there are other laws:

o   Gratitude

o   Compliance

o   Pardon

o   The aim of punishment is not revenge

o   That mediators of peace be allowed safe conduct

o   That those who are at controversy submit their right to the judgement of another

o   No man can be his own judge

-        Recognizes natural laws as rational and don’t have force until they can be judged and carry out punishment or reward

o   Dictates of reason but not proper laws

-        A being who has no reason and only desire is dangerous

o   Eg. A rabid dog or a wild lion

-        Commonwealth = sovereign

o   Common power is one person or group of people

-        Law in general is a command

o   Then civil law is also a command just with a person in command

o   Command can only be made by the commonwealth

-        We need unity, without it you don’t have stability

-        The sovereign of a commonwealth is not subject to the civil law

-        The legislator acts as one

-        Parliament cannot restrict parliament

o   Since you make the laws you can change them

-        The law of nature and civil law contain each other and are of equal extent

o   Laws of nature: equitity, gratitude, justice, and other moral virtues

o   Civil law declares what is equity, justice and make them binding and provide adequate punishments

-        Law has to be problem gated

-        Is every citizen commanded by the law?

o   No, animals aren’t as the cannot understand them

o   No, children and people who cannot fully understand them

-        If you cannot understand the law it does not bind you

-        Has to be declared and can only be declared to those who understand it

o   Although we can incarcerate mentally ill people

o   Wont be able to prove intent therefore will be sent to a hospital until you can prove they are no longer mentally ill

-        All laws written and unwritten have need of interpretation

o   This is why we have judges

-        Who provides interpretation?

o   Judges

o   Supreme judge is the sovereign

-        Positivist says someone needs to have a final word and it is the sovereign



October 16 - Will Grant

Midterm: October 25th

Positivism

 *Remember - Always question…what is law? (Purpose, Function, Relation to morality)

-    Hobbes

-    Hobbes recognizes that natural law means nothing without civil law

-    5 Criteria of Civil Law

-    1. A Command

-    2. From the will of the commonwealth - of the sovereign as legislator. Not based on customs!! (customs change and are inconsistent)

-    3. Purpose - Must be for the distinction ion right and wrong; to identify what is reasonable and what is to be abolished; aimed at limiting natural theory.

-    4. A command of reason - Law can never go against reason because reason is the sovereign.

-    5. Must be known - Codified for all to see/reference. The law can not be held over fools, madmen, or beasts. The sovereign makes the law binding.

-    Other notes on Hobbes:

-    The sovereign must always maintain that citizens never have nothing to lose by disobeying the law (must be reprimands)

-    The legislator must be known

-    The interpretation of the law depends on the sovereign however it is up to the citizen to find the law himself.

 

How does all of this compare with NL theory?

     Reason

     Conflict between neutral and positive law

How do judges work?

     They tell us what the law is

     Hobbes: “Ought to have regard to the reason which moved his sovereign to make such law”

     Judge can find a law to be outdated and ignore it

     Hobbes: ^^ This is very bad

     They are not bound be custom or precedent

 

So:

-     Judge determines what the law (principle) is (but does not change/make the law)

-     Judge looks at the facts

-     Judge deduces and applies (neutral, passive)

Hobbes: Is this really how reasoning works?

Legal Realism next class…





Oct. 13/2017 - Leah Gray

 

MT: Wed. Oct. 25 (Review and information about formatting on Monday for a portion of class)

·       After the MT we are going to focus on issue/debates, move away from theories

 

-       judges have to know law and report it

o   e.g. Sec. 15b is about not foreclosing laws on affirmative action (discrimination)

§  what is in Sec. 15a talks about discrimination based on sex

·       not just about gender but also sexuality (orientation)

·       think about what legislature had in mind à know it, but don’t make law up, go back to original drafters

-       know what sovereign wants and applies it

o   doesn’t make/change law

o   e.g. crime of euthanasia: put someone in jail if they act out the crime of euthanasia in the past – must adhere to it without applying own view

§  violated neutrality of position

-       natural law theorists and positivists = both probably agree with this

 

Holmes

-       law professor for about 40 years, also a US Supreme Court Justice

-       he says people pretend to adhere to law, but they don’t and they shouldn’t do it that way

-       friend of W. James, a pragmatist (pragmatist: how does reality operate, what works)

o   natural law theory = abstract and removed from reality

-       skeptical about moral knowledge – if you think that law is tied to morality, and that you can’t know morality, then you can’t know law (but we need to be able to know law)

 

The Path of the Law

-       what exactly is the law, what does it do

-       para. 2: law is prophecy (scattered prophecy, like tea leaves)

o   it is not pure reason, not just precedence

-       p. 10: how to gain liberal understanding of law

o   can’t just read law, law is about results

o   history is unimportant but need to know what its purpose is

-       power is the ability or control over the command of ideas, not money (the lasting nature of Kant v. Bonaparte, debatable)

-       understand ideas because ideas make a civilization

-       p. 2: to understand law and its purpose, talk to a bad man

o   understand the laws limits in this way (e.g. can’t stop a bad man through morality)

o   how to get bad man to be obedient – good people already follow it, so better to talk to bad man

§  what about rebels/protesters? They dont follow the law but are they then necessarily bad people?

o   bad men don’t care about morality

§  to say that not following the law is immoral doesn’t affect anything

§  the bad man will still be bad, thus you need something else

-       to find out law, see what judges do

o   if you talk about the importance of morality in law, just going to get confused and muddy the waters

o   e.g. abortion 30 years ago was illegal, it didn’t matter about the right to choose

§  morally you might have that right, but it is not important in the eyes of the law

-       morality has no practical importance in the law, it just makes things more convoluted

-       law has historical relevance

o   e.g. laws against incest

§  the history helps contextualize a law, but it doesn’t tell you whether its law or not or what the law is

§  laws change (p. 4), perhaps independent of morality

o   morality looks at intention, but how can we know someone’s intention with certainty (intention: an internal working of the mind) à muddies the waters

-       law needs to give results: motive makes it more effective, not because morally relevant, but because it makes law effective

-       p. 4: issue of contracts

o   contract doesn’t depend on agreement, but on having said the same thing

o   doesn’t matter what was intended

o   not dependent on agreement of minds (intent) à what matters is how judge interprets it, and in whose favour (if in anyone’s favour)

-       law is not dependent on morality at all

o   some history and relevance, but not necessary to laws effectiveness

-       law as reason/logic

o   law isn’t a matter of deduction

§  e.g. LSAT: tests legal reasoning – lawyers want to win

·       need to persuade judge/jury, reasoning by itself isn’t enough

-       the idea of logical reasoning is a neutral idea/expectation

-       reasoning is a practice of superstition

o   if there is judicial discord/disagreement, then, under law as reason, one side or the other is being unreasonable

o   if everyone was perfectly reasonable/rational, then always figure things out

o   even when there is agreement on the conclusion/decision, it isn’t always due to the same reasoning

-       things are open to interpretation – judge/jury interpret it

-       depends on context

o   e.g. 1993 Rodriguez asks to be able to act out euthanasia à 5/4 against

§  Carter case: 7-0 in favour of euthanasia

§  different opinion of euthanasia

-       judges take into account public opinion and community standards

-       no position is self-evident – certainty is an illusion in law

o   can reconsider things later, law isn’t a mechanical operation

-       what does law do?

o   p. 6: weighs the considerations of each event e.g. how would it be if abortion legal/illegal

§  what is the implication of each decision – the value of such a law is determined this way

§  what is productive of the best result – take into account own experience, public opinion, etc.

o   law is like spontaneous growth, like a plant

§  develops and changes, depends on environment (e.g. euthanasia in Canada, but not in the UK)

o   intention of those who wrote doesn’t matter

§  it has changed since then, law grew since then

·       e.g. 2nd Amendment: what was intended in allowing guns in the 18th century isn’t relevant now

§  law is a creative enterprise

-       good to know rules of law because it is first step of enlightened skepticism

o   the irony of needing to know the laws to perhaps eventually change or alter them

-       does punishment deter? (do laws deter?)

o   retribution: not all laws provide this

o   rehabilitation: not all laws provide this either (recitivism)

-       p. 1: law is a prediction

o   prediction of whether man omits or does certain things (if he does, then he will be made to suffer in this/that way)

o   it’s a prediction, but it’s not guaranteed

§  the chances are that the court sees you in this way

o   law is aspirational – judge determines it

o   set of probable predictions without guarantee