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
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 can’t 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 ŕ 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 ŕ absence of external
impediments
-
No security in this state of
life
In
society:
1st
law of nature ŕ seek peace and follow it
2nd
law of nature ŕ 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
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 ŕ 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 don’t 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) ŕ 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) ŕ 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 ŕ 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