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

SOCRATESAbout 400 BCRecognized the tension between law which is just and law which is merely what government says it is

Platos MinosSOCRATES 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

AristotleThe Father of Natural Law

At his best, man is the noblest of all animals; separated from law and justice he is the worst.

NATURAL LAWNatural 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

CICERORoman Statesman

About 100 BC

Famous Definition of Natural Law

CICEROS 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 AQUINASAbout 1265 Law; an ordinance of reason for the common good, made by him who has care of the community.

Summa TheologicaLaw 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 1700s

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 POSITIVISMNo inherent or necessary connection between law and ethics or moralityLaw is conceptually separate from moral and ethical values, Law is posited by lawmakers, who are humansLaw is ultimately a matter of human custom or convention.

LEGAL POSITIVISMWhether 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 POSITIVISMThe 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 POSITIVISMLaw is a matter of what has been posited (ordered, decided)

Positivism is the view that law is a social construction.

JEREMY BENTHAM1750sNature 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

UTILITARIANISMthe 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 POSITIVISMThe Province of Jurisprudence Determined (1832)

Influenced by Bentham

Austin's theory of law the law is command issued by the uncommanded commanderthe sovereign;

such commands are backed by threats of sanctions; and

Law is created by position

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LAWMORALITYJUSTICE

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