legal theories and philosphers

lesson slides 3 and 4

What are legal jurisprudences?

Different theories and perspectives on law and how it works.

What are the aspects of natural law?

Humans are inherently moral and have natural rights; the law should be in accordance with divine laws and morality.

What did Socrates believe?

Living in a society was a two way relationship where individuals gained benefits but had to accept some limits in freedom; man made law must be in line with the ideas of natural law.

What did Plato believe?

Student of Socrates; the ultimate purpose of law was to be a moral guide to society, must disobey unjust laws.

What did Plato believe about equality?

No equality; justice depends on the circumstances of each situation and therefore must be flexible and not tied to equality.

What did Aristotle believe?

Student of Plato; people were in one of three categories: born good, can be educated to be good, those “ruled by passions.”

What did Aristotle believe about people who were ruled by passions?

A need for man made laws to force them to be good by making them fear punishment.

What did St. Thomas Aquinas believe in?

Humans are moral. Established four kinds of law: eternal law, natural law, divine positive law, human positive law.

What are the aspects of positive law?

Made by the head of state for the good of the state as a whole; law had no moral purpose and those who did not follow it were punished.

How did positive law originate?

Originated in England after a time of political and religious upheaval; ensured the “survival of the state.”

What did Thomas Hobbes believe in?

The purpose of law is to maintain order; people must surrender to the laws made and enforced by the king.

What did John Locke believe in?

The main goal of the state is to protect rights; people should give authority to a civil state, but can overthrow oppressive governments.

What did Locke believe the natural rights were?

The right to life, liberty (thought, speech, and religion), and property.

What did Bentham and Austin believe in?

Laws are separate from morality and are evaluated by their utility to society; created Utilitarianism.

Define “utilitarianism”

The concept of the greatest amount of happiness for the greatest number of people.

What are the aspects of legal realism?

Examines law in a realistic way rather than theoretical; focussed on the discretionary power given to judges.

What did Oliver Wendell Holmes Jr believe in?

The law exists to maximize freedoms and have punishments for breaking it; it is important to consider the development of law overtime.

What are the aspects of legal feminist theory?

Challenged the objectivity of law; laws explicitly discriminate against women and are systematically biased.

Who was Bertha Wilson?

First woman on SCC, commented on lack of women judges, ruled in favour of woman’s right to abortion and allowed the battered wife defence.

Who was Beverly McLachlin?

First woman Chief Justice of SCC, disallowed a boy’s lawsuit against mother for prenatal injuries but allowed SA victims to be questioned about their sexuality.

What did Beverly McLachlin believe in?

Fairness required equal opportunities for women; law must remain responsive to new norms (i.e. parenting).

What are the key aspects of critical race theory?

Race is a social construct used to oppress people of colour; racism is inherent within the law; goal of eliminating race based hierarchies.

What did Richard Delgado believe in?

Race is a normalized social construct; any legal advances for people of colour are done to serve the interests of the larger white group.

What is differential racialization?

Media applies negative stereotypes to people of colour; no individual can be identified in a single group.

What are the key aspects of Indigenous perspectives?

Made treaties with Europe leading to current land claims; the Indian Act was made to give federal authority over Indigenous people.

Who was Cindy Blackstock?

Advocate for rights of Indigenous children; sued federal government for underfunding Indigenous child services.

What are the key aspects of religious perspective?

Conflicts between religion and law; Charter guarantees freedom of religion.

What is criminal theory?

Examines why people commit crime.

What was Lombroso’s theory regarding crime?

Positive theory; crime is caused by biological factors/nature over nurture.

What was Beccaria’s theory regarding crime?

Classical theory; crime is a product of free will committed when the rewards outweigh the possible consequences.

What was Freud’s theory regarding crime?

Psychoanalytic theory; criminal behaviour results from improper socialization and childhood experiences.

What was Robert Merton’s theory regarding crime?

Strain theory; socio-economic pressures cause some individuals to attempt to achieve their goals through crime.

What was Durkheim’s theory regarding crime?

Sociological theory; people are a product of the larger environment, weak bonds or failure to see a benefit to rules lead to criminal behaviour.

What was Becker’s theory regarding crime?

Differential association theory; giving someone a negative label makes them more likely to commit crime.