Law Quest 2

Moral Philosophy

relationship between a community’s values, or morals, and its formal laws - the rules it writes down and expects its members to follow, and the way it treats those who do not follow them

Philosophy

Considers how we define what behaviors should be seen as criminal or as non-criminaL

Morals

The beliefs about what is right and wrong that guides us in our behavior 

Legal Philosophy

• Jurisprudence – the thinking behind the law 

• Asks questions about law and relating factors 

Social Contract

•  By entering a social contract with one another, people agree to give up some freedoms in exchange for some amount of security against various kinds of harm 

• Acknowledges that without rules, people are in a state of nature (do what we want) 

• If we do what we want, it can lead to destruction and violence 

Natural Law

• Humans are born with a certain moral compass 

• There is the idea that humans process intrinsic values which govern your behavior and reasoning to seeing through things 

• Natural law maintains that these rules of right and wrong exist within people 

Ex. Natural law assumes that everyone believes killing a person is wrong and punishment for that act is right 

• Applies to all humans and doesn't change while human made laws can change 

• An unjust law is no law at all 

Legal Positivism

• Law should be followed simply because it is the law 

• Law gets its authority from the power of the government 

• Governments are established to maintain social order 

Legal Realism

• Is a subcategory of legal positivism 

• Laws come from the current social interests and public policies 

• Judges don't just follow the rules, but also think about what's best for society 

• Considers that people don't think values are independent, not universal 

• What is true, moral, or fair depends on the perspective of the individual 

• Focuses on how laws are shaped by individuals and experiences 

Critical Legal Theory

• Law is intertwined with social issues and has inherent social biases 

• Law is a tool most easily used by people who already have a high degree of social power and status 

• Those with power are most likely not to give up their power 

• Laws reflect individual values and therefore contains the biases of powerful social groups 

• The law appears to offer justice for all, but in practice, it's a tool most easily used by people who already have a high degree of social power and status 

Plato

• Citizens must set aside the irrational desire to taste every pleasure and to get a selfish satisfaction out of every object and force themselves to focus on single function for the general benefit (common good) 

• Believed a just person reflects a just society 

• An idea society would be one where all would perform to the best of their ability 

• Initially, Plato thought justice could and should be administered without laws 

• Recognized there is a need for law, and it should combine persuasion and compulsion (reason and punishment) 

• Determined the law should benefit and serve all citizens 

Aristotle

• Justice should aspire to equality but should be administered with equity 

• Determined justice treats equals with equality and unequal's with unequally 

• Laws are derived from rational deliberation and guided by the pursuit of the common good.  

• Law is a manifestation of reason and virtue 

• Laws should promote virtuous behavior and discourage vices, fostering a moral and harmonious society 

• Justice should be administered with equity 

• Meritocracy 

Cicero

• Applied the principle that justice, right, equality, and fairness should underlie all law 

• True law is reason in agreement with nature 

• Ideas that our law should reflect what we think is right 

• Said the state should represent the collective will of citizens 

Saint Agusine

• Governments are necessary to establish laws so that people obey them 

• People must work on their virtues, laws help with this 

• Establish laws so people obey them because without them people could do horrible things 

Thomas Aquinas

• Aquinas did not agree with St Agustine that the main purpose of government was simply to keep the sinful in line 

• He saw government as also helping to work for the common good that benefits all 

Thomas Hobbes

• Security and the preservation of peace were fundamental to political and social justice 

• Human made law was much more important than natural law 

• Justice depended largely on the existence of a superior power  

Jean-Jacques Rousseau

• The Social Contract: Explained that citizens should abandon their natural rights in favor of social contract 

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

Jeremy Bentham 

Utilitarianism: The only way to assess the law was to measure its utility or the extent to which it benefits the community and the individual members of the community 

• Greatest good for the greatest number   

John Austin

• Main purpose of government and of law: “The greatest possible advancement of human happiness” 

• Ethics or morality should play no part in determining whether a law is good or bad 

John Stuart Mill

Utilitarianism: Laws should serve a useful function in society 

• Ideal happiness was the happiness for all concerned 

Legal Formalism

• Believes that law is like math (or science)

• Body of rules that describe what ought to be and nothing more

• Law is a scientific entitiy that needs to be universally followed

• Judges apply the law and have no outside and no authority to act outside it

• Judges must apply the rules made by the state and its agencies. They are the voice of the law, not the law itself - not their role to make social policy - new cases should be decided according to a scientific application of legal precedent

Legal Formalism Legislature

• Law is enacted by a legislature and is derived from the state

• The introduction of the Charter of Rights and Freedoms (1982) challenged the principle of legal formalism. The Charter opened the debate between those who support the view that judges should merely apply the law and those who argue it is the role of judges to make law.

  
  

Legal Formalism Basis

• This theory is based off the assumption of a perfect system where all people are threated equally within society

• The laws are universally good and do not affect individuals in a biased way

• Judges are the voice of the law, not the law itself

Legal Realism

• Rejects the principles of legal formalism.

• Argues that it is the courts and not parliament that (in reality) make the law (judges are the real authors of the law).

• Judges should use their knowledge to make laws and, when making rulings, judges should use their consciences.

• Law is all about value judgements made by the courts and rely on

  their interpretation of political, social, economic (etc.) circumstances

• Judges shape precedents to support their own preconceived notions of justice - either for good or bad.

Legal Realism Basis

• The court has the ability to look at society and determine what is best for the people involved.

• This does not necessarily mean looking at the individual but at society as a whole

Critical Legal Theory/Studies

• No method of lawmaking is truly neutral, and all aspects of the law have bias embedded in it.

• Law exists to support the interests of the people in power anf can be a powerful tool for injustice and oppression.

• Judicial decisions are the result of ideological and historical struggles (i.e. fight for civil rights, Indigenous land claims etc.)

• Law should be used as a tool to achieve social justice.

• State provides for the health and welfare of its citizens through law, therefore judges can and should exercise discretion in ensuring that the law also achieves justice. (Judges need to be able to avoid these influences and pass laws to create a level of equality among all people.)

Feminist Jurisprudence

• Philosophy of law based on the argument that the legal system upholds political, economic and social inequality for women. The state and all its features are seen as male even if it sometimes appears to be neutral.

• The logic and language of law create and reinforce male values and male power (at the expense of women).

• Even laws put in place to protect women and children instead support the view that women are the property of men.

• The criticisms voiced by supporters have led to changes in laws (in North America) affecting employment, divorce, domestic violence, sexual harassment etc.

Law Based on Economics

• Instead of examining issues of law and justice, some legal theorists argue that economics offers the best explanation for how the law functions (or should function).

• Purpose of all law is resource allocation (how to distribute resources fairly).

• Economically, laws are good if money is saved, and economics should always be taken into account when rulings are made (i.e. a law that imposes a fine on individuals who failed to ear bike helmets would be considered successful only if it saved more money through fewer people’s use of health services due to head injuries than the cost to enforce the law)

• Economics should be considered by judges in ALL their decisions

Contemporary Theorists

Modern legal theorists have accepted many of the principles and ideas provided

by the historical philosophers. They have also challenged many of the views of

jurisprudence and added their own contributions to the body of legal thought.

Many of the modern philosophers share either a natural or positivist

perspective. Unlike the historical theorists they are not radically different in their

thinking from one another. They recognize that there are valid aspects to most

theories and that many different perspectives can enhance our knowledge

about law

H.L.A Hart (1907-1992)

• English legal writer

• Purpose of law: to coerce (force) people to do certain things and not do others

• In any legal system: must be rules of general application (ie. following the speed limit) backed by threats given by people who are generally obeyed (ie. police officers or judges)

• Broke down rules/laws into:

  • Primary Rules: define what individuals must or must not do

  • Secondary Rules: outline how primary rules are defined and how they are applied, removed, changed or enforced

• Judges should strike a balance between competing interests and could be flexible in certain circumstances.

John Rawls (1921-2002)

• “Justice is fairness”

• Argues: only way a legal system can achieve fairness and ensure that

  decisions are rational and unbiased is if no one in society knew of his/her

  own status or the extent of his/her own wealth

  • i.e. People in Ontario accused of crimes and cannot afford a lawyer would be provided with a legal -aid certificate which they can present to ANY lawyer who will accept them as a client (in court the judge is not aware that the accused is being defended by a free legal-aid lawyer) - the jury cannot be influenced by the social status of the accused.

    
    

Richard A. Posner (1939-)

• American philosopher (known as modern utilitarian)

• Argues: law must reflect certain economic realities.

• Believes that law should be assessed on the basis of its effectiveness in altering negative behaviours.

• i.e. Smoking bylaws should be assessed purely on their effectiveness in reducing smoking and the expenses associated with smoking related illnesses versus the cost to the government of collecting cigarette taxes.

Noam Chomosky (1948-)

• Arguably one of the most famous and controversial present-day legal philosophers.

• Believes that law primarily serves the purposes of those in power.

• Believes there is cooperation between the elite class of society and the law-makers to make laws that maintain the status quo and the wealth and power of the elite.

• Believe the media plays a part in this by withholding serious information from the public, thereby keeping the masses happy but ill-informed - in this way, the elite class makes all he true decisions in its own favour

Reasons to Reform Lawa

• Laws help to ensure a safe and peaceful society

Indigenous Justice Program

• Supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances 

• Restorative justice is an approach to justice that seeks to repair harm by providing an opportunity to those harmed and for those that take responsibility for the harm to communicate about and address their needs after a crime 

• The IJP currently funds 197 community-based programs that serve over 650 communities 

• To assist Indigenous people within the justice system of their communities 

• To reflect and include ingenious values in the justice system 

• Contribute to the decrease of the victimization, crime, and incarceration of indigenous people 

Regulations

• Carry out the purposes of general laws or expand on them and have the force of a law 

• Means we must abide by them, or we are breaking the law 

• Ex. Regulations on food we eat so we stay healthy 

• Ex. Regulations that outline what kind of storage tanks we need to use to keep oil products, so we stay safe 

The legislative Process

• Legislation is a written law tht provides rules of conduct 

• To become a law, legislation must be approved by Parliament 

• Proposed legislation is introduced in Parliament in the form of a BILL which provides the basis to amend or repeal existing laws or put new ones in place 

• Canadas legislative process involves 3 distinct parts: 

• The House of Commons (elected, lower Chamber) 

• The Senate (appointed, upper chamber) 

• The Monarch (head of state, who is represented by the governor general in Canada) 

The Monarch

• head of state, who is represented by the governor general in Canada

The Senate

• appointed, upper chamber

The House of Commons

• elected, lower Chamber

Federal vs. Provincial Responsibilities

• Before any legislation can be passed, the government has to determine if it falls under the responsibility of the federal, provincial, or municipal governments 

• These distinctions are found in Section 91 and 92 of the BNA Act (1867) and has been largely unchanged in over 150+ years 

• There is overlap of provincial and federal levels of government and when they overlap it is known as concurrent jurisdiction 

What Happens When Conflict Arises

• In some circumstances, the lack of precision in s91/02 has required clarification by the courts to determine if... 

• Legislation is intra-vires (inside the jurisdiction) or ultra-vires (outside the jurisdictions) of the Federal or Provincial government 

• If the Province thinks the federal government is overstepping its authority it can bring it to the SCC which declares the action intra-vires of Federal Power, meaning they are allowed to do so 

• Most of the time these issues do not make it to court but are settled by join co-operation between two levels 

How Laws are Created

• To come into force = a bill has completed these three things 

1. Received Royal Assent 

2. Is on the day or past the day of enactment outlined in the Bill 

3. On a day or days set by the Governor in Council 

The Changing Values of Society - Reason to Reform the Law

• Laws are made from elected officials and the courts. These must reflect society's changing attitudes and values 

• Ex. Women's rights, family law, abortion laws 

Breakthroughs in Technology - Reason to Reform the Law

• Evelving privacy issues and crimes committed in cyberspace are reasons to rethink the effectiveness of our laws 

• Ex. Cyberbullying, privacy issues 

Court Rulings - Reasons to Reform the Law

• Since the inception of the Charter the role and influence of the courts changes tremendously 

• Since 1812, the courts have the right to strike down the law as determined by parliament, if it is not compatible with the rights listed in the Charter 

• Ex. Prostitution laws, same sex marriage 

Government Legislation - Reason to Reform the Law

• There are over 1500 pages to the Criminal Code of Canada 

• Many of these laws remain in original form 

• There are being repeated calls to update our laws 

• It is the prerigative and responsibility of the government to revise and tweak the laws as necessary (and as the values of society dictate) 

Laws in Response to Crisis - Reasons to Reform the Law

• In some instances, public emergencies prompt new legislation to address immediate and momentous events 

• Ex. The Emergency Act (1988) enacted in 2022 during the protests in Ottawa 

• Anti-terrorism Act (2001) in response to Sept 11, 2001 

Individual and Collective Action - Reason to Reform the Law

• Individuals and small groups of “like-minded” collectives can play a significant role in influencing legal reform 

• These individuals and groups often serve as the initial force that achieves the critical mass necessary to gain the confidence of the general population to begin legal reform 

Globalization - Reason to Reform the Law

• International pressure and the interests of the global economy 

• Canadas Anti-Terrorism Act is largely a complement to the US Patriot Act signed in response to the devastating acts of September 11^th, 2001 

• The Kyoto Protocol, and international document, legally obliges states to reduce greenhouse gas emissions 

The Legislation Process/How Laws Are Made

Legislative Level of Government

Passes laws

Executive Level of Government

Implements laws

Judicial Level of Government

Interprets laws

Function of Government

Responsibility of Government