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Legal System&
Legal Philosophy
Law is...
Law is...
Rules
Acts intended to alarm Her Majesty or break public peace
49. Every one who wilfully, in the presence of Her Majesty,
(a) does an act with intent to alarm Her Majesty or to break the public peace, or
(b) does an act that is intended or is likely to cause bodilyharm to Her Majesty,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 49.
Reality
Rules → Reality
Reality → Rules
“Up to 35% of all PC software installed in 2004 was pirated.”
BSA study
RulesReality
Industry
Politics
Market forces
World events
Perceived reality
RulesReality
Industry
Politics
Market forces
World events
Perceived reality
RulesReality
Industry
Politics
Market forces
World events
Perceived reality
oo
o
o
o
o
o
o
Which rules?
Rules+ Regularity+ State+ Prescribed by HumansLaw
Philip S. James, 1969
Problems:� prescribed by humans?� always imposed?� authority of the state?
Jurisprudence
juris + prudentia
Legal Positivism
Natural Law
Natural Law
Common Law System
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 ofthe 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.
United States Declaration of Independence, 1776
R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1.
MacMillan Bloedel v. Simpson (1994), 88 C.C.C. (3d) 148, 92 B.C.L.R. (2d) 1, [1994]
7 W.W.R. 259 (C.A.).
Historical Jurisprudence
Sumner
Savigny
Fuller
Law is Blind
Law is Blind
Legal Realism
Critical Analysis
� readings� Lon Fuller, “The Case of the SpelunceanExplorers”, Harvard Law Review, (1949) 62 (4): 616–645� To find it, Google “speluncean”
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