Exploring Legal Theories: Positivism, Realism, and Natural Law

Natural Law

A theory that posits a necessary connection between law and morality, asserting that natural law is universal and can be determined through human reason.

Key People in Natural Law

Socrates, Aristotle, Plato, Cicero, Aquinas, & Hugo Grotius.

Socratic Method

A form of cooperative argumentative dialogue that stimulates critical thinking, often involving asking questions to help others recall pre-existing knowledge.

Plato's Theory of Forms

The idea that everything in the world is an imperfect copy of an ideal form, and that we are born with knowledge but forget it, known as A-PRIORI knowledge.

Plato's Republic

A philosophical work by Plato that describes a utopian state ruled by philosopher kings who use reason to discover the ideal form of justice.

Objective Justice

A type of justice that is considered universal and applies to everyone, as opposed to subjective justice, which varies by society.

Subjective Justice

A type of justice that varies depending on societal norms and conditions.

Aristotle's Connection of Justice and Virtue

Aristotle linked justice with virtue, exemplified by his concept of the 'Golden Mean'.

Cicero's View on Natural Law

Cicero argued that natural law is universal, unchangeable, objective, written by God, and discoverable through reason.

St. Thomas Aquinas

A philosopher who harmonized Greek philosophy with Roman Catholic faith and significantly influenced Catholic theology.

Summa Theologica

A guide for theology students written by Aquinas that used reason to prove God's existence.

Aquinas on Unjust Laws

Aquinas stated that 'An unjust law is a human law that is not rooted in eternal law and natural law.'

Hugo Grotius

A philosopher associated with the secularization of natural law, arguing that natural law would exist even without God.

Reason in Law

The principle that laws should be based on reason, as argued by various philosophers including Grotius.

Cicero's Conception of God

Cicero was not a Christian but had a conception of God, which influenced later Catholic philosophers.

Influence of Aquinas

Aquinas significantly influenced the development of Roman Catholic theology.

Cicero's Natural Law Characteristics

Cicero characterized natural law as universal, unchangeable, objective, written by God, and discoverable through reason.

Historical Timeline of Natural Law

Natural law originates in early Greek philosophy and evolves through figures such as Socrates, Plato, Aristotle, Cicero, Aquinas, and Grotius.

Cicero's Era

Cicero lived from 106 to 43 BC and was a Roman philosopher.

Aquinas's Lifespan

St. Thomas Aquinas lived from 1225 to 1274 AD.

Grotius's Lifespan

Hugo Grotius lived from 1588 to 1645 AD.

Philosopher Kings

In Plato's ideal state, philosopher kings rule by using reason to discover justice.

Natural Law

A system of law that is based on moral principles and reason.

Positive Law

Law that is man-made and considered valid because it has gone through an official process.

Geneva Conventions

A series of treaties that were written over a period of 80 years, from 1864 - 1949, informing the laws of war.

Thomas Hobbes

A key figure in legal philosophy known for his social contract theory.

Jeremy Bentham

An English philosopher known for his ideas on utilitarianism and the assertion that natural rights do not exist.

John Austin

An English legal theorist known for his conception of law as an order made by a sovereign backed by threats.

H.L.A. Hart

A British legal philosopher who critiqued Austin's simplistic view of law and emphasized the internal point of view of legal compliance.

Utilitarianism

A philosophical theory that advocates for maximizing pleasure and minimizing pain, asserting that justice consists in the greatest good for the greatest number.

Natural Rights

Rights that are claimed to exist without government, which cannot be enforced and are considered ambiguous.

Legal Decision-Making

The process by which judges interpret laws, potentially filling in gaps by referring to the legislator's intent.

Official Process

The procedure by which something becomes law in the U.S., including legislative statutes, judicial cases, and executive actions.

Legislative Statutes

Laws created by Congress.

Judicial Cases

Legal decisions made by courts.

Executive Branch

The branch of government responsible for enforcing laws.

Internal Point of View

The perspective that individuals follow the law not just out of fear of punishment but because they agree with it.

Open Texture

A characteristic of some laws that indicates they are somewhat unclear and require interpretation.

Sovereign

A supreme authority in a legal system who has unlimited power and is always obeyed.

Civil Rights

Rights granted by law that can be enforced.

Ambiguity of Natural Rights

The problematic nature of natural rights due to their unclear definition.

Historical Context of Positive Law

Positive law originates in the mid-1700s and gained prominence in the early 1900s.

Critique of Austin's Law

Hart's argument that Austin's view reduces legal systems to mere threats, ignoring the complexity of law.

Maximize Pleasure / Minimize Pain

The fundamental principle of utilitarianism.

Legal Realism

Law is what JUDGES / COURTS say it is. Focus is not on how law is written, but on how law is practiced.

Indeterminacy of Law

Law is INDETERMINATE, and thus judges have DISCRETION to interpret it in various ways.

Chief Justice Oliver Wendell Holmes

American lawyer & judge who served on Supreme Court from 1902 to 1932.

Holmes's Prediction Theory

How should we define the law? Answer: from the point of view of a 'bad man.'

Bad Man Theory of Law

Bad people try to predict the consequences of their actions: will they go to jail? Will they pay a fine?

Example of Bad Man Theory

The speed limit is 55 mph, but you actually drive 60 mph. Thus, the 'real law' is that the speed limit is 60 mph based on the prediction of whether or not you will get a ticket.

Civil Disobedience

In no sense do I advocate evading or defying the law... That would lead to anarchy.

MLK, Jr. on Civil Disobedience

One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.

MLK, Jr. on Law and Conscience

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment, is in reality expressing the highest respect for the law.

Legal Positivism

MLK, Jr. recognized the legal validity of discriminatory laws and accepted the punishment for breaking these laws.

Natural Law

MLK, Jr. drew from Aquinas's definition of just vs. unjust laws.

Social Contract

These philosophers try to imagine what humans were like in a hypothetical STATE OF NATURE and argue why people are better off with GOVERNMENT / LAWS.

Thomas Hobbes

Hobbes was an English philosopher who survived several wars, influencing his view of the world.

State of Nature

All men are equal in nature, and that is the problem.

Key People in Social Contract

Thomas Hobbes, John Locke, Jean-Jacques Rousseau, & John Rawls.

Timeline of Social Contract Theorists

Late 1500s to early 1800s.

John Locke

A philosopher who contributed to social contract theory.

Jean-Jacques Rousseau

A philosopher known for his ideas on the social contract.

John Rawls

A philosopher who developed theories on justice and social contract.

Nonviolent Direct Action

Examples include Sit-Ins and Marches.

Reflection on Violence

In your opinion, is violence against a perceived injustice ever just?

Philosophers' Response

Consider how various philosophers / concepts of law might respond to the reflection question.

State of Nature

People all possess the same, equal desire to live.

State of Nature

Our natural reason causes us to put our own self-preservation first.

State of Nature

This leads to violence and war. (Example: You kill someone to save your own life.)

State of Nature

People are not inherently evil; they are just driven by their passions.

Social Contract

A powerful sovereign is needed to check people's passions.

Social Contract

Hobbes' sovereign does not have to be a democratic ruler; it could be a dictator.

Social Contract

Hobbes does not believe in human rights; the only rights you have are those that are enforced by the state.

Social Contract

Example: Hunger Games movie where 'The Careers' form an alliance. This alliance is slightly better than the state of nature.

John Locke

English philosopher & doctor.

John Locke

Locke's profession as a doctor meant that he treated many elite patients, who welcomed Locke into the high class of society.

John Locke

Locke had a privileged life. This influenced how he thought about government.

State of Nature

The state of nature is benign anarchy. You obtain private property through labor.

State of Nature

Example: You pick apples from a tree. The apples are now your private property.

State of Nature

Problem: There will be property disputes in the state of nature.

State of Nature

Solution: People give a neutral arbiter (the sovereign) the right to punish others.

Social Contract

Locke says that the people are governed by consent.

Social Contract

The role of government should be limited.

Social Contract

Government should only protect our negative rights.

Social Contract

The state should not interfere in our lives, except in very specific situations (such as property disputes).

Social Contract

If the state violates the social contract, we have the right to overthrow it.

Jean-Jacques Rousseau

Swiss-born philosopher.

Jean-Jacques Rousseau

Rousseau's ideas partially inspired the French Revolution.

State of Nature

Example: Noble Savage (people are isolated, there is no language; he bases this on the Island of Tahiti).

State of Nature

Problem: Individuals in the state of nature lack an identity, because your identity is a product of your community.

State of Nature

Individuals in the state of nature do not have the capacity to be rational / irrational.

State of Nature

Individuals in the state of nature are good, but have no sense of what is right / wrong (they are amoral).

State of Nature

Pity is the natural sentiment that we have in the state of nature.

State of Nature

Rousseau abhors the idea of private property, because he argues that it leads to inequality.

Social Contract

Rousseau (like Locke) says that the people are governed by consent.

Social Contract

Rousseau would like a direct democracy that is small (such as Athens, a Greek city-state).

Social Contract

Rousseau believes that the general will of the people can be found, and that the state will enforce this.

Social Contract

Government should guarantee our positive rights.

Social Contract

This is the right to live in a society with social institutions and social forms (including ideas) that reflect all the choices we could make to realize our full potential.

John Rawls

Rawls was an American legal philosopher.