Introduction To Law and Society II PDF

Introduction to law and Society II Jan 6- Social Legal Studies of Law Medical assistance in dying (Maid) passed in June of 2016 Only those with an incurable physical illness of disability are eligible f or this service. Day 2 Natural Law The idea that law and morality is int...

Introduction to law and Society II Jan 6- Social Legal Studies of Law Medical assistance in dying (Maid) passed in June of 2016 Only those with an incurable physical illness of disability are eligible f or this service. Day 2 Natural Law The idea that law and morality is intersected. Nature of Morality: Objective truths derived f rom the world outside of ourselves. Relationship between Law and Morality: Law is inf ormed by pre-existing moral truths. Source of Law: Moral truths derived f rom the physical world. E.g. The earth revolving around the sun is an objective truth since we have proof. Naturalist Framework— Thomas Aquinas Aquinas is a theologian—was part of the Catholic Church Enumerated the Four categories of law that he believed to exist Eternal Law (Lex Aeterna): Known only to God, f orming the plan f or creation’s order. Natural Law (Lex Naturalis): Human understanding of eternal law through reason. Divine Law (Lex Divina): Revealed in scriptures, providing moral guidance. Naturalist Framework— Thomas Aquinas Eternal law is the belief that divine wisdom comes f rom god, and is based on God’s plan f or all creation. Discovered by humans through reason. Immutable, natural laws f or human action def ined in God’s plan f or all creation. Learned f rom human behavior. Naturalist Framework— Thomas Aquinas Aquinas suggests that humans are directed/ inclined towards the good which can be seen through 7 actions. Rules of natural law are binding because they direct us towards “good” and away f rom “evil”. “Good’ = lif e, knowledge, reproduction, society, and avoidance of ignorance. “Evil” = Lying, blasphemy, adultrey We deduce what is evil and make human made law to prohibit humans f orm committing “evil” acts. Lex injusta non eat test lex (an unjust law is not law) Natural Law theory—Video Naturalist Framework- William Blackstone William Blackstone is a British Jurist and a pre-eminent scholar due to colonization Blackstone ref erred to Aquinas’s natural law 1. There can be no legally valid standards that conf lict with the natural law. 2. All valid laws derive their f orce and authority f rom the natural law. Natural Law and Social Contract Theory Thomas Hobbes, unlike Aquinas, suggests that humans are more inclined to evil rather than the good. People are inherently Self ishm which leads to corruption, distrust and there pursuit of glory. To avoid a state of war, we f ollow the laws of nature. 1. Seek Peace with others 2. Universally and concurrently divest of rights 3. Consent to establishment of sovereign power proposes this idea that citizens should give up all of their f reedoms to an absolute sovereign. Natural Law and Social Contract Theory John Locke proposes the social contract; this idea that citizens should give up some of their f reedoms to the state f or peace and protection in return. Natural Rights: Lif e, liberty, and property. Social Contract: Required for the protection of natural rights and the establishment of political power. Political Power: Not absolute and can be resisted. Application- Aquinas, Hobbes and Locke on Bill C-14(Maid) How would a naturalist explain the law of assisted death passed via Bill C-14? Is assisted death a natural law? Aquinas would say that this goes against natural right to lif e. Hobbes - Locke - Limits of Classical Approaches There are several critiques of classical naturalist f rameworks: 1. Unjust Laws: Unjust laws exist and are enf orced. 2. Moral Relativism: There is no singular “moral truth” and def ining natural law is problematic. 3. Evolving Legal Systems: Law changes over time and place. New Naturalist Frameworks Lon Fuller argues that law in itself has to f ollow certain principles Law’s Inner Morality: Law has an inherent morality guiding its f unction. Law’s Function: To establish social order by providing general rules f or people to f ollow. New Naturalist Frameworks Established eight moral principles of the law: 1. The rules must be expressed in general terms; 2. The rules must be publicly promulgated; 3. The rules must be prospective in ef f ect; 4. The rules must be expressed in understandable terms; 5. The rules must be consistent with one another; 6. The rules must not require conduct beyond the powers of the af f ected parties; 7. The rules must not be changed so f requently that the subject cannot rely on them; and 8. The rules must be administered in a manner consistent with their wording.  Fuller suggests that if laws are consistent with these guidelines than laws hold their validity. Procedural version of natural law Legal Positivism January 13 Legal Positivism— The Basics Law is a product of social rules A legal theory that f ocuses on the law’s content and operation, emphasizing its separation f rom morality and its basis in rules and decisions. To provide objective studies of law, contributing to certainty, predictability, and stability. Inspired by the scientific method, relying on empirical evidence and rigorous methods to understand and analyze legal systems. For a legal system to be truly f air, there needs room f or predictable, stable and certain Their f ocus is on what law says and is instead of the content of law. Legal Positivism— John Austin Four key principles f or his Command theory 1. All commands of the sovereign are valid and enf orceable 2. “Commands” = positive law 3. “ The sovereign” = the person of agency who receives habitual obedience. 4. Laws produced through formal and recognized process are valid, regardless of morality or external standards Legal Positivism – H.L.A. Hart Denounces the principles of command theory f or three reasons 1. Modern governments are not composed by sovereigns are understood by Austin 2. Continuity of law challenges role of sovereign imagined by Austin 3. Not all laws are orders backed by threats Hart’s Critique: Unable to distinguish pure power f rom institutions and rules accepted by the community. Law comes in so many dif f erent f orms; some laws give power to render sanctions Rules f or the legal system; secondary rules. Legal positivism—H.L.A. Hart Rules are enacted by humans There is not really a connection between law and morality; true legal positivism  But there is a minimal basis to the work of naturalists Law is a product of the social that contributes to survival of a community Legal positivism—H.L.A. Hart Fundamental characteristics of human conditions that require the reliance on law according to Hart 1. Humans are vulnerable 2. There is approximate equality amongst humans 3. Humans are only limitedly altruistic 4. There are limited resources 5. Humans have a limited understanding of strength of will Legal systems must of f er minimal protections given these characteristics Not necessarily about morality but still acknowledge truths of human condition that inf orm legal rule These are truths about the human condition. House of Commons, Senate, And governor general need to agree for laws to be created, enacted, or removed ————— But this all has to be consistent with the charter or will be struck down Legal positivism—H.L.A. Hart Hart divides legal rules into 2 categories; Primary rules and Secondary Rules Primary Rules Impose a duty or obligation on citizenship (Obligation rules ) Secondary rules Conf er power on of f icials in the legal system Rules of Change Govern the making of primary rules Open Texture: Cannot cover all situations, requiring interpretation and engagement, particularly by judges. Precedent: Results in judge-made law (case law) that allows f or the adaptation of law to evolving social contexts. Stare Decisis: “Stand by decided matters,” emphasizing the importance of court hierarchy in legal interpretation. Stare Decisis—if a higher court makes a law, the lower courts must f ollow. Legal positivism—H.L.A. Hart Indictable of f enses can only be heard by higher level courts Secondary rules (cont) Rules of adjudication: govern the enf orcement of law. Rules of recognition: Determines the validity of legal rules Law is created by humans through of f icial actions. Law is only valid when made in accordance with those rules Application – Austin, Hart and Fraser v Canada How would John Austin and H.L.A. Hart approach a discussion of Fraser v Canada? Supreme Court Case Focus: The Supreme Court of Canada considered whether the exclusion of certain groups f rom accessing benef its or programs due to specif ic rules (e.g., RCNP provisions) was constitutional under the Canadian Charter of Rights and Freedoms The case highlighted issues related to gender inequality, particularly how such exclusions disproportionately affected women and restricted access to programs critical f or their prof essional growth. Legal Philosophical Perspectives: John Austin Austin’s view of law, rooted in legal positivism, holds that only commands issued by a sovereign and backed by sanctions qualif y as law. Since this decision emerged f rom the judiciary (not the sovereign or a clear command), Austin might argue it does not constitute "law" under his f ramework. He would likely see judicial rulings like this as outside the realm of law since they do not directly align with his command theory. H.L.A. Hart Hart, another legal positivist but with a more nuanced approach, would argue that this decision demonstrates the secondary rules of recognition in play within a legal system. Hart would emphasize that the Supreme Court’s decision is valid law because it f ollows the accepted rules of the legal system, including the constitution as the ultimate rule of recognition. He would view the judgment as a legitimate exercise of the judiciary’s role in interpreting and applying laws consistent with the Charter and constitutional norms. Contemporary Legal Positivism Group Description Key Points Primary Proponents Hard Validity of law does not depend Existence and content of law determined by Joseph Raz Positivist on moral merit. social circumstances. s Sof t No necessary moral content to Legal system may make moral content a N/A Positivist law. criteria f or validity. s Hard Positivism— Core Idea: Law and morality are completely separate. Soft Positivism— Core Idea: Law and morality are mostly separate, but moral principles can play a role in lawmaking or legal interpretation if a legal system allows it. Dworkin and legal Rights January 15 The human condition necessitates law morality is not necessarily needed got the f ormation of laws What law actually is; not concerned with what law could be Check in questions 1. The thesis that morality and law are not necessarily connected is called: A)The Social Thesis ***B)The separability thesis C)Hard positivism D)Sof t Positivism 1. Hobbes argued that there are three laws of nature. The laws of nature he identifies are: A)The f acilitation of peace B) The mutual divestment of rights C)Consent to a political sovereign ***D)Resistance of tyranny Dworkin and Legal Positivism Ronald Dworkin developed critiques of three theses of legal positivism and the work of Hart Does make space f or morality can be used as guidance when understanding what law is. Law is subject to interpretation; open textured Precedent(case law) sets the rule f or lower courts; used as guidance f or lower courts to make a decision. Stare decisis- says that prescedent needs to be f ollowed during the decision making process. 1. Pedigree thesis Conditions that make a rule valid. 1. Discretion Thesis Law consists of only legal rules. 1. Obligation thesis Legal obligations are generates by rules. Dworkin, Rules and Principles Law is comprised of legal rules; in addition to this, there are also principles (moral standards) also guide legal decisions. Rules set an all or nothing standard; conclusive He argues that legal positivism cant account f or these principles. Ex of legal principle. In f ront of the court; innocence until being proven guilty(but its not conclusive since people are still imprisoned until being proven guilty)  Rules set determinative, all or nothing standards. Dworkin – legal principles of f er justif ications f or a variety of actions. Judges weigh conf licting principles when no rule clearly applies. Example: Riggs v Palmer on a murderers eligibility to inherit f rom a victim. Guiding principle – no person should prof it f rom their own wrong. Denying operation of “strong” judicial discretion noted by Hart. Instead promotes a “weak” discretion, with judges making decisions only on the application of legal principles to arrive at legal conclusions. Dworkin and Constructive Interpretation Dwarkin argues that law is always being made and is always evolving Follows the approach of constructive interpretation; which is the process of imposing purpose on an object of practice to make it the best example it can be. Purpose of Object/Practice: Imposes a purpose on an object or practice, aiming to create the best example. Purpose Justification: The purpose should fit the object/practice and justif y its existence, meaning it should be valued. Purpose Evaluation: The purpose should recommend the object/practice’s existence and be worth pursuing. Dworkin sets a clear process on how judges make decisions; constructive interpretation Dworkin and Right Answers All legal questions have unique, right answer 1. Even in dif f icult decisions, “right”answers are to be f ound 1. Right answer = best available answer Some answers might be better than others 1. No singular, global arguments in law to deal with all cases, regardless of individual circumstances Critiques of Dworkin Law’s True Nature: Law should be objectively described as it is, not as it could be. Dworkin’s Perspective: Law is a collection of past interpretations of legal decisions, lacking an objective description. Consequences of Constructive Interpretation: Promotes uncertainty and unpredictability in the legal system. Human Rights January 20 What are “Rights”? What is the f orm (structure0 and f unction (operation) of rights? Four basic types of rights, which conf er benef icial status Fundamental f unction of rights Doesn’t explicitly tells us what a right is. Wesley Hof held suggested that there are f our types of rights. 1. claims 2. privilege 3. power 4. immunity. Each has an oppositive or a correlative that conf ers a detrimental status. Opposite: no-right (claims) duty (privilege) disability (power) liability (immunity) Correlative: duty (claims) no-right (privilege) liability (power) disability (immunity) What are “rights”? Jural Rights Privileges Power Immunity Opposites No-right Duty Disability Liability Jural Right Privilege Power Immunity Correlatives Duty No-right Liability Disability Power can be used as a means to remove a privilege Immunity; meaning that your privileges cannot be taken away Disability; if you have no power to take another rights away. What is a right? Benefits of Hofheld Demonstrates the complexity of rights Example; Property rights = bundle of f our types of rights. Privileges (No duty to not plant vegetables) Claim (Imposed duty on others to not enter) Power ( Remove privileges of others to land use) Limitations of Hofheld Cannot account f or all circumstances Some duties have no correlative benef icial claim rights Example: criminal law and duty not to breach to peace Some duties protect claim rights Example: wearing a seatbelt  Duties help to promote rights Human Rights as Ethical Principles or Values Naturalist framework views human rights as inherent to the individual because they are human. They belong to everyone and we have to respect them Jack Donnelley “h[uman] rights are, literally, the rights that one has simply because one is a human being. Thomas Hobbes: Developed social contract theory Suggests that humans are inherently bad by nature and self ish But we are rational as it is necessary f or survival Established set of rules to promote security John Locke: everyone has natural rights like the right to lif e, liberty and property Inherent and inalienable rights of all humans. Political authority cannot take away these rights. Immanuel Kant People have rights because they share the earth’s surf ace and think rationally. Enumerated strategy f or practical moral action. 1. Morality requires impartiality, non-arbitrariness and equality. 2. Humans must be treated as ends in themselves 3. Individuals must recognize their responsibilities and empowerment. Human Rights and Law Human rights must be recognized legally Legislation of human rights were inspired by moral principles of naturalists Example:American and French Revolutions inspired declarations of equality and rights. These ideas, championed by Wollstonecraf t and abolitionists, extended rights to all persons. International Human Rights UN Charter (1945) Universal declaration of Human Rights (1948); 30 distinct rights and f reedoms listed International Law and Human Rights UHDR included with International Bill of human rights, with International Covenant on Economic , social and cultural rights and the International Covenant on civil and Political rights rights listed in Covenants. States must not interf ere with rights themselves or allow others to do so. Established through internal (economic sanctions) and external (military threat) means. Critiques of Legal Approach Law and governance within a territory, not humanity. Found in a political community or nation-state.  Challenges the universality of human rights, arguing for cultural diversity and the absence of absolute moral standards. Test Prep #1 Test #1 – Worth 15% of f inal grade (can drop) If dropped – test 2 worth 30% (no drop – 25%) and test 3 worth 25% (no drop – 15%) Must write to drop Composition of test: 20 marks total, 12 multiple choice, 2 short answer worth 4 marks each. Write in person using Lockdown Browser 1. According to Hof eld, the opposite of claims are **A) Immunities B) Privileges C)Duties D)Powers 1. Naturalists believe that law and morality are: a) Intersecting, with law emerging f rom morality b) Separated, with law being based on rules c) Mutually reinf orcing, with law deriving f rom morality and morality deriving f rom law 1. Dworkin’s theoretical approach to the process of law is called: a) Fit, justif ication and value b) Pedigree thesis c) Weak discretion d) Constructive interpretation Test Prep #2 Short answer questions based on quick write Quick Write #1: Compare and contrast the position of Aquinas on the source of law to H.L.A. Hart. Contrast naturalism to legal positivism Quick Write #2: Human rights are inalienable. Explain the source and meaning of this statement.