Chapter 1 – Heritage of Chapter 1 – Heritage of LawLaw

Positive LawPositive Law

AgendaAgenda

1. Positive Law1. Positive Law 2. Roncarelli v. Duplessis 2. Roncarelli v. Duplessis

Learning Goal for TodayLearning Goal for Today

By the end of the lesson, students By the end of the lesson, students will be able to explain the main will be able to explain the main philosophers of positive lawphilosophers of positive law

ExpectationsExpectations Analyse the views of historical and Analyse the views of historical and

contemporary philosophers of lawcontemporary philosophers of law CGE4c – responds to, manages and CGE4c – responds to, manages and

constructively influences change in a constructively influences change in a discerning mannerdiscerning manner

CGe7d – promotes the sacredness of CGe7d – promotes the sacredness of lifelife

Origins of Positive LawOrigins of Positive Law

Development of positive law theory Development of positive law theory in England followed a period of in England followed a period of widespread religious, political and widespread religious, political and social upheavelsocial upheavel

Civil war Civil war Protestant v. CatholicProtestant v. Catholic Cromwell v. King (beheading) Cromwell v. King (beheading)

Postive LawPostive Law

Law is established by the head of Law is established by the head of state and for the good of the state as state and for the good of the state as a whole.a whole.

The law holds no moral purpose The law holds no moral purpose other than to ensure the survival of other than to ensure the survival of the state.the state.

The law by its nature must be The law by its nature must be obeyed and anyone who challenges obeyed and anyone who challenges it is subject to severe penalties.it is subject to severe penalties.

Thomas Hobbes (1588-1679)Thomas Hobbes (1588-1679)

was an atheist and Republicanwas an atheist and Republican

claimed the state of nature was a claimed the state of nature was a state of perpetual war as the strong state of perpetual war as the strong and intelligent plundered the weak and intelligent plundered the weak and the slowand the slow

HobbesHobbes

People strengthen their position by People strengthen their position by destroying those around themdestroying those around them

The result was that in the state of The result was that in the state of nature people led lives that were nature people led lives that were “solitary, poor, nasty, brutish and “solitary, poor, nasty, brutish and short”.short”.

HobbesHobbes

Therefore, security and preservation Therefore, security and preservation of peace were fundamental to of peace were fundamental to polictical and social justice.polictical and social justice.

HobbesHobbes

Since all people are prone to violence Since all people are prone to violence and disorder, we form governments and disorder, we form governments so that a strong leader will rule over so that a strong leader will rule over us and maintain law and order.us and maintain law and order.

HobbesHobbes

In the interest of self-preservation, In the interest of self-preservation, people agree to surrender their people agree to surrender their rights to the state or king because rights to the state or king because justice depends largely on the justice depends largely on the existence of a superior power.existence of a superior power.

HobbesHobbes

People need government to legislate People need government to legislate or enact laws in order to regulate or enact laws in order to regulate their relationships with one another.their relationships with one another.

HobbesHobbes

Citizens make an agreement in which Citizens make an agreement in which they surrender the right to govern they surrender the right to govern themselves to the ruling power in themselves to the ruling power in exchange, exchange,

the ruling power takes steps the ruling power takes steps necessary to protect life, property necessary to protect life, property and contract.and contract.

HobbesHobbes

Having transferred their right to Having transferred their right to govern to the ruler the people can no govern to the ruler the people can no longer claim a right to control that longer claim a right to control that rulerruler

Justice depends largely on peoples’ Justice depends largely on peoples’ obedience to civil lawobedience to civil law

HobbesHobbes

Refusing to obey the law was foolish Refusing to obey the law was foolish because it would return society to its because it would return society to its earlier state of perpetual warfare and earlier state of perpetual warfare and anarchyanarchy

John Locke (1632 -1704)John Locke (1632 -1704)

tries to soften the extreme tries to soften the extreme pessimism of Hobbes by pessimism of Hobbes by incorporating aspects of natural law incorporating aspects of natural law into his theoryinto his theory

LockeLocke

Did not believe collective rights were Did not believe collective rights were more important than individual more important than individual rights.rights.

John LockeJohn Locke

Positive law of the state was Positive law of the state was embedded in a constitution, but the embedded in a constitution, but the constitution had to be based on constitution had to be based on natural law which emphasized natural law which emphasized individual rightsindividual rights

John LockeJohn Locke

““All people have the right to self-All people have the right to self-preservation but that the law should preservation but that the law should restrain people from doing hurt to restrain people from doing hurt to one another.”one another.”

John LockeJohn Locke

If gov’t violated the natural rights of If gov’t violated the natural rights of individuals, the people were justified individuals, the people were justified in rebelling and replacing the unjust in rebelling and replacing the unjust gov’t with one that would respect gov’t with one that would respect their rights.their rights.

John LockeJohn Locke

Defined these fundamental rights Defined these fundamental rights which are unalienable as which are unalienable as

life, life, liberty (of thought, speech and liberty (of thought, speech and

religion) religion) and property.and property.

Purpose of civil law is to preserve Purpose of civil law is to preserve these three rightsthese three rights

John LockeJohn Locke

In the state of nature, people’s In the state of nature, people’s passions get the better of their passions get the better of their reason, this leads to injustice as the reason, this leads to injustice as the strong took whatever they want from strong took whatever they want from the weakthe weak

John LockeJohn Locke

Law protects individuals against the Law protects individuals against the arbitrary acts of others who would arbitrary acts of others who would interfere with their freedominterfere with their freedom

John LockeJohn Locke

Therefore, it is to a person’s Therefore, it is to a person’s advantage to form a civil society in advantage to form a civil society in which the majority hands over to the which the majority hands over to the state, the authority to preserve their state, the authority to preserve their fundamental rightsfundamental rights

John LockeJohn Locke

His ideas laid the foundation for His ideas laid the foundation for modern theories on democracy modern theories on democracy

Thomas JeffersonThomas JeffersonDeclaration of IndependenceDeclaration of Independence

That all men are created equal; that they are That all men are created equal; that they are endowed by their Creator with certain unalienable endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, pursuit of happiness; that to secure these rights, governments are instituted among men, deriving governments are instituted among men, deriving their just powers from the consent of the governed; their just powers from the consent of the governed; that whenever any form of government becomes that whenever any form of government becomes destructive of these ends, it is the right of the destructive of these ends, it is the right of the people to alter or to abolish it and to institute new people to alter or to abolish it and to institute new government, laying its foundation on such government, laying its foundation on such principles and organizing its powers in such form, principles and organizing its powers in such form, as to them shall seem most likely to effect their as to them shall seem most likely to effect their safety and happiness.safety and happiness.

Canadian Charter of Canadian Charter of Rights and FreedomsRights and Freedoms

Whereas Canada is founded upon Whereas Canada is founded upon principles that recognizeprinciples that recognize

the supremacy of God and the supremacy of God and

the rule of lawthe rule of law

John LockeJohn Locke

Both Constitutions echo the natural Both Constitutions echo the natural law theory that certain truths are law theory that certain truths are self-evident, they are universal and self-evident, they are universal and can be discerned through reasoncan be discerned through reason

Jean-Jacque RousseauJean-Jacque Rousseau(1712-1778)(1712-1778)

French philosopherFrench philosopher

““Man is born free; and everywhere he Man is born free; and everywhere he is in chains…How did this change is in chains…How did this change come about?”come about?”

Civilization has a corrupting influence Civilization has a corrupting influence on humanson humans

According to RousseauAccording to Rousseau

We recognize the necessity of the We recognize the necessity of the state to govern, advocate the idea of state to govern, advocate the idea of a contract between citizens and the a contract between citizens and the statestate

RousseauRousseau

Referred to this agreement as theReferred to this agreement as the

““Social Contract”Social Contract”

Mutually beneficial relationship in Mutually beneficial relationship in which the state could be removed if which the state could be removed if the people will it.the people will it.

RousseauRousseau

Therefore, the state should govern Therefore, the state should govern according to what he referred to as according to what he referred to as the “general will of the people”the “general will of the people”

RousseauRousseau

Difficulty lay in determining exactly Difficulty lay in determining exactly what he meant by the ‘general will’ what he meant by the ‘general will’ of the peopleof the people

Jeremy BenthamJeremy Bentham(1748 – 1832)(1748 – 1832)

Views on law were formed mainly in Views on law were formed mainly in reaction to the Industrial Revolutionreaction to the Industrial Revolution

His primary concern was legal and His primary concern was legal and social reformsocial reform

BenthamBentham

Believed that people, left to their Believed that people, left to their own devices, tried to achieve the own devices, tried to achieve the maximum amount of pleasure and maximum amount of pleasure and happiness in their liveshappiness in their lives

BenthamBentham

The law should be evaluated by its The law should be evaluated by its utility to society as a wholeutility to society as a whole

It should be based on what is It should be based on what is practical and realistic rather than an practical and realistic rather than an idealistic moral viewidealistic moral view

According to Bentham,According to Bentham,

The law is simply the best way of The law is simply the best way of ensuring the good of all, or “the ensuring the good of all, or “the greatest good for the greatest greatest good for the greatest number.”number.”

UtilitarianismUtilitarianism

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

BenthamBentham

Law is simply a means of social Law is simply a means of social control and has nothing to do with control and has nothing to do with moralitymorality

John AustinJohn Austin(1790-1859)(1790-1859)

The main purpose of government and The main purpose of government and of law is to enable “the greatest of law is to enable “the greatest possible advancement of human possible advancement of human happiness”.happiness”.

AustinAustin

useless to judge law by a moral or useless to judge law by a moral or religious code because these are religious code because these are subjective measuressubjective measures

AustinAustin

Each person in society can have their Each person in society can have their own interpretation of the law own interpretation of the law

They will obey those laws they judge They will obey those laws they judge good and disobey those they judge good and disobey those they judge to be badto be bad

Society cannot function in this waySociety cannot function in this way

AustinAustin

Individuals must bend their will to Individuals must bend their will to that of the governing body since the that of the governing body since the purpose of the law is to ensure the purpose of the law is to ensure the happiness of the majorityhappiness of the majority

According to AustinAccording to Austin

No positive law can be unjust, No positive law can be unjust, because the law itself is the measure because the law itself is the measure of what is just or unjust.of what is just or unjust.

AustinAustin

The acts of individuals are to be tried The acts of individuals are to be tried against an objective standard of law against an objective standard of law and that ethics or morality should and that ethics or morality should play no part in determining whether play no part in determining whether a law is good or bad.a law is good or bad.

Positive LawPositive Law

HomeworkHomework

Hwk read Roncarelli v. Duplessis [1959] SCR 121 on p.89 & do ?’s #1-4, p.90