Test #2

Question 1

Why is there no clear cut definition of law?

Answer 1

No clear cut definition because “law” is applied in a number of different concepts.

Traditionally “law” has been viewed as a LEGAL CONCEPT SYSTEM. and a SET OF RULES.

Question 2

Many legal scholars and philosophers have written about law, combined their writing is known as what?

Answer 2

Juris Prudence

Question 3

Define Juris Prudence

Answer 3

The Philosophical interpretation of the meaning and nature of law

Question 4

Law is associated with abstract qualities such as:

Answer 4

1. Justice
2. Morality
3. Equality

This means that when we refer to law as being either good or bad, just or unjust fair or unfair what we really mean is that we might disagree because it does not conform to our understanding, meaning or interpretation.

Example: Laws about censorship from a conservative perspective and a Liberal Perspective

Question 5

Explain the Laws about censorship example

Answer 5

Conservatives prefer less government intervention when it relates to censorship. Because they want less laws that help them achieve their goals - prefer more freedom. Liberals prefer protection of vulnerable people - they are worried about not having ENOUGH censorship laws.

Laws do not conform to our understanding or comprehension.

Question 6

Since the sole purpose of law is desirable, but the laws itself are seen as unjust, intrusive, and unacceptable, a definition of law should involve what?

Answer 6

It should involve Rightness or Morality.

But that is dependant on the perspective from which it is defined

Question 7

The law involves a network of agencies, institutions and procedures developed to perform a specific function. Examples of this are:

Answer 7

Parole officers, Courts, Police, Judges, Prisons

Police - this is a branch of law enforcement

Courts - this is a branch of law that settles disputes, and imposes sanctions’

Jails - this is a branch of the penal system that carries out the sanctions that are set out in law and imposed by courts

Question 8

There are rules that establish our rights and obligations, some examples include:

Answer 8

1. Youth criminal justice act
2. Criminal Code
3. Bylaws

Each of these has a clear objective or function and reflects values, ideals and purpose of the people

Question 9

What is Unchangeable principles?

Answer 9

It refers to “yes and no” and right and wrong, justice and truth.

Ideas that these unchangeable principles regulate us and we learn them through reasoning, looking around at interactions

Question 10

What is Natural Law?

Answer 10

Theory worked on by Plato, Aristotle, and St. Thomas Aquinas

Based on the idea that human laws derived from eternal and unchangeable principles that regulate the natural world, and that people can become aware of these laws through the use of reason

In other words natural law is believed to be brought by god and it is within everyone. Our laws mirror natural laws and we learn natural law from observing what happens around us.

Natural law is a theory that suggests certain principles governing human behavior are inherent in nature and can be understood through reason alone. It’s like saying there are certain moral rules that are universal and can be discovered by thinking about what is good and right.

For instance, things like not hurting others or helping those in need might be seen as part of natural law because they seem to be universally recognized as morally right across different cultures and societies.

Natural Law:
Reflection of eternal law in human nature.

Knowable by human reason.
Perceived through observation of the natural world and rational reflection.

Provides moral principles inherent in human existence.
Examples include duties towards family (e.g., caring for children), self-preservation, avoidance of harm, and benevolence towards others in need.

Question 11

Give an Example of Natural law and explain it

Answer 11

EG: The Golden Rule

Explanation: The golden rule states that we should treat others the way you would want to be treated. We learn it through observing, and reasoning. It is about fairness and empathy guiding how we interact. In simple terms, it suggests that we should consider how our actions impact others and treat them with the same respect and kindness that we would want for ourselves. This principle reflects the idea that there are moral truths that can be understood through reason and apply universally across different cultures and societies. - (Someone hurts you. It does not feel good, so you observe and use reason to know not to do that specific action to anybody else)

Natural Law is the eternal law as it operates in humans and can be known by them. We know this law through our reasoning and can see it’s workings in the natural world around us.

Other examples:
- Parents should care for their children

• people should do no harm to others
• we should all assist the sick, elderly, and poor

Question 12

Give an overview of socrates

Answer 12

Most of his info came from his students (Plato). Because He was known for never writing down his own work. He developed the Socratic Method

He tried to correct problems in Athens. Socrates was accused of corrupting the youth of Athens. This accusation came from his habit of engaging in philosophical discussions with young people in the city. Some influential Athenians felt that Socrates’ teachings were leading the youth by encouraging them to question traditional beliefs and authority figures.

Question 13

Explain the Trial of socrates

Answer 13

Socrates was brought to court and charged with two crimes that were serious enough to warrant the death penalty. The first crime was being a “criminal” for corrupting the youth, and the second charge being that he “does not believe in the gods whom the state believes in, but other new spiritual things instead”

His trial was held in front of a jury, and Socrates explained himself for both charges.

For the first one of “corrupting the youth” Socrates explained that the accusation had no “foundation in truth” and that it was based on “envy & malice” of the people whose ignorance he had exposed when questioning them. (He made people look stupid when questioning then). He suggested the youth enjoyed watching socrates embarrass their elders. The accusations came from when the youth started to question people who had a reputation of wisdom.

For the second charge, Socrates suggested that the second charge contradicted itself. He said his accusers implied that he was an atheist, but at the same time said he believed in “new spiritual things”. Since spiritual things include the gods he could not be an atheist. In other words Socrates felt like he was not breaking the law, but fulfilling it by making individual people better. This was the whole point of the law, to encourage people to lead good lives.

In conclusion the jury held a secret ballot and found Socrates guilty as charged and he was forced to drink Hemlock poison.

Question 14

Give an overview of Plato

Answer 14

S - socrates
P - Plato
A - Aristotle

He was a student of Socrates and later became a teacher of Aristotle. He thought that humans were social by nature and that an organized society was naturally just.

• • For example bees and ants live in colonies. This was not something they were taught, rather it was inherent.
• • He believed that society existed not just for economic reasons but to help people develop the good life.
• Justice in his view was when all the powers of an individual’s work in harmony.
• A person could be considered “just” when all that persons powers of physical, mental and spiritual are working in harmony with one another.
• Platos idea of natural law would be to do Good and avoid evil.
• He believed that law is closely associated with morality - which is achieved through reason
• He also believed that as a human being achieves justice through reason, the state achieves justice through law.

Question 15

Give a overview of Aristotle

Answer 15

Aristotle was a student of plato.

He was one of the earliest people known to study logic and the idea of coming to conclusions rationally through reason.

Plato believed that humans are political animals. Like humans are similar to bees and ants

Aristotle disagreed with the point above ^ though because he believed that we were different from animals, he thought that REASON set us apart; our ability to tell the difference between good and bad, just and unjust.

Plato thought that education was the answer to making people good

Once again Aristotle disagreed with the point above ^ because he thought it was more than just education

Aristotle believed that people fall into 3 categories:

1. Born Good
2. Can be made good through education
3. Most are simply ruled by passion and education alone will not make them good. Law will make theme good because they will fear the consequences

Aristotle and plato both thought that law had a moral purpose and it forced people to live according to reason and not their passions.

Question 16

Explain Rationalism, and provide an example

Answer 16

Rationalism = Process of using reason to analyze the natural world.

Think about people who argue for protecting the environment. They say it’s not just about making laws; it’s about understanding why it’s important. They might say things like, “We need to save animals and plants because they’re all connected, and if we mess up nature, it’ll hurt us too.”

So, they’re using reason to show why it makes sense to protect nature, not just because the law says so, but because it’s good for everyone in the long run. That’s an example of natural law

Question 17

Explain the Socratic Method

Answer 17

“Socratic method” = Asking questions & answering with more questions which gets people to come to their own conclusions. in simple terms, the Socratic method is about asking questions to create thoughtful discussions and help people discover knowledge for themselves.

Question 18

What is Dialectic?

Answer 18

The Process of clarifying an idea through discussion.

It involves a back-and-forth exchange of ideas, where each participant presents their perspective, challenges the other’s views.

An example of dialectic could be a debate between two friends discussing whether technology has more positive or negative effects on society

Question 19

During the age of reason movement in europe what did philosophers move away from relying on?

Answer 19

Religion and Religious Teachings

Question 20

Positive Law theorists believed that laws are based on what:

Answer 20

Human Authority (Governing body)

The idea is that the evolution of a society dictates what law is and government bodies enact CODES (bodies of organized laws), STATUTES (individual law), or LEGISLATION (laws or groups of regulations) that has been enacted by the government

Question 21

Positive law theorists believe that the law is established for what:

Answer 21

The state, to benefit everyone. And if any laws were broken, it would be a crime and there would be a severe punishment.

Question 22

How do positive law theorists think laws were established

Answer 22

Humans had to “put it there” or “posit” them

compared to natural law, it was based on divine revelations and eternal workings of the universe.

Question 23

What is justice?

Answer 23

In platos theory of natural law, it is the state or condition that exists when all the powers of an individual or society are working together in harmony for the good of the whole

Question 24

Give an overview of St. Thomas Aquinas

Answer 24

St. Thomas Aquinas was a dominican friar. Aquinas work involved identifying 4 types of law

1. Eternal Law
2. Natural Law
3. Divine Positive
4. Human Positive

Aquinas agreed with Aristotle that human law has a moral purpose, but he disagreed with the idea that humans can develop their greatest potential within the state.

Aquinas thought that people are bound by conscience to obey a just law. An unjust law would not have this binding force.

People are under no moral obligation to obey laws that conflict with divine laws.

He believed that divine positive law is superior and should be followed before human positive law

Also outlined 4 characteristics of just laws:

1. Rooted in natural law, reflecting moral truths. It’s a product of human reasoning
2. Serve the common good, fostering harmony and well-being within society.

3.Established by rulers who genuinely seek the welfare of the community.

4.Promulgated for public knowledge and adherence. It’s Published

Question 25

What are the 4 types of law St. Thomas Aquinas identified

Answer 25

1. Eternal Law
2. Natural Law
3. Divine Positive Law
4. Human Positive Law

Question 26

What is Eternal Law? Give an example

Answer 26

Eternal law is the body of law by which god created the universe and keeps it in operation. This type of law exists outside time and will never change. It is impossible for humans to have a perfect knowledge of eternal law because it is impossible for us to understand the mind of god.

Eternal law, in simple terms, is like the rules that keep everything in the universe running smoothly according to a plan made by God.

For example, think about how things fall down because of gravity. That’s like one of the rules of eternal law, because it’s always been there and keeps things in order, just like God planned. So, eternal law is about the natural order of things as God intended them to be.

Question 27

What is Divine positive law? Provide an example

Answer 27

The divine positive law is the part of the eternal law that has been revealed in the scriptures. This would include the Ten Commandments in the old testament of the christian bible.

In other words, Divine positive law is like rules or laws given directly by God in religious texts, like the Bible or the Quran.

For example, in Christianity, the Ten Commandments given to Moses are considered divine positive law. These laws are seen as coming directly from God and are believed to guide believers in their conduct and worship.

So, divine positive law is all about specific rules or commands given by God in religious teachings.

Question 28

What is Human Positive Law? Provide an example

Answer 28

Human positive law consists of laws that human beings have made for the proper functioning of society and the state.

In other words Human positive law is like rules or laws made by people for a society to follow.

For example, speed limits on roads are human positive laws. They’re not based on divine command or natural principles; instead, they’re created by governments to ensure safety on the roads.

So, human positive law is all about rules that humans come up with and agree upon to govern how society works.

Question 29

Natural and positive theorists agreed on some things, the conflict came from what?

Answer 29

Moral Issues

Question 30

Give an example of a moral issue conflict with natural and positive law

Answer 30

Example: Euthanasia

Conflict:
Natural Law: Values the sanctity of life, opposes intentionally ending life.
Positive Law: Legalizes euthanasia under certain conditions, allowing intentional end of life.

This conflict arises between the moral principle of preserving life (natural law) and the legal permissibility of euthanasia (positive law).

Another example is the death penalty.

If there was punishments set that includes sentencing to death, the conflict with the punishment would come from our morality and if it goes against the 10 commendments

Question 31

According to Positive Law Theory What does justice mean?

Answer 31

Conformity to the law

Question 32

With respect to positive law, justice and law are identical. Explain this with an example

Answer 32

Laws did not need to line up with morality. You had to follow it. Law and morality were separate. Natural law assumed that if a law was written, it was fair. EX: Lords day act & legalized weed

For example, let’s say there’s a law that punishes theft with imprisonment. According to the concept of positive law, if someone steals and is then punished according to that law, it’s considered just because it follows the legal system. So, in this case, justice and the law are seen as the same thing.

Question 33

Give a overview of Thomas Hobbes

Answer 33

Thomas Hobbes was an english philosopher who believed that laws were necessary to curb a few things:

1. Fear
2. Greed
3. Violence

He said that those 3 things formed our human nature.

He believed that without laws we would be in a state of war as he believed that people would band together to attack those they feared.

He felt that people had a tendency towards violence & disorder, so they formed governments to rule over them to maintain order and peace.

He believed that we needed these laws in place to have control within society.

In the interests of self-preservation people agreed to surrender their rights to the king.

Question 34

Give a overview of John Locke

Answer 34

Locke was an english philosopher who incorporated some ideas of Natural law into his theories to temper the extreme negative view of Hobbes (who believed that people were greedy and violent by nature).

Locke believed that an individual is justified in violating a law or to rebl if the ruler/king/law violated their natural rights. Some of these fundamental rights were to life and liberty, and freedoms such as thoughts and speech and religion.

An example of a natural right would be the right to practice your religion. And if a law goes against your religion or took your rights away to practice it, then the law should not be allowed. EG: Lords day act, working on sabbath

Like hobbes he believed that people could be ruled by passion instead of reason, and this would lead to injustice (strong taking over the weak). As such it was in society’s best interest to allow the government to rule over them to preserve their fundamental rights.

Question 35

Give an Overview of Jeremy Bentham

Answer 35

Jeremy Bentham’s work on human nature led him to believe that if people were left to their own devices, they tried to achieve the maximum amount of pleasure and happiness in their lives.

based on the point above ^ bentham proposed a way to judge whether a law was good or bad. And it went as followed:
The law should be evaluated by it’s utility to society as a whole.

He said that a “truly law” (fair/just) law provides the greatest happiness for the greatest number of people. That was his theory that ultimately became known as Utilitarianism.

He did not completely reject the role of religion - he felt morals and attitudes could be shaped by religion.

He believed that people were rational individuals who would weigh the potential consequences of their actions in terms of pleasure and pain. This is how an individual would determine what is moral or right and wrong.

(Think about single-use plastics and analyze from Bentham’s perspective)
Consequences from a pleasure (pro) perspective = convenient and cheap.

Consequence from a pain (con) perspective = environmental impact such as pollution and harm to wildlife.

Think about COVID-19 vaccine mandates. What would be Bentham’s perspective on these mandates?

He would argue that collective welfare is prioritized over the individual’s person autonomy (freedom) and therefore, these laws would be just.

Question 36

What is Utilitarianism

Answer 36

The Theory developed by Jeremy Bentham that states that the law should achieve the greatest good for the greatest number of people

Question 37

Give a overview on John Austin

Answer 37

Another English philosopher (someone who analyzes law, legal systems and helps to provide an understanding of the nature and function of law)

Austin agreed with Bentham that the purpose of the law was to secure the happiness of the majority, he separated law fully from morality.

For Austin it was useless to judge law by a moral or religious code because these were subjective measures.

He felt every law passed should be obeyed, as the purpose of every law to promote happiness for the majority.

Question 38

What is Legal realism? Provide an example

Answer 38

Legal Realism is the school of legal philosophy that examines law in a realistic rather than a theoretical fashion. The Belief that law is determined by what actually happens in the courts as judges interpret and apply law.

In other words Legal realism is like looking at how law actually works in everyday life, not just what’s written in books. It’s about understanding that judges and other legal authorities might make decisions based on their own experiences and beliefs, not just on the law itself. So, legal realism focuses on how law plays out in real situations and how people’s opinions and circumstances can affect legal decisions.

Example:

Example:

Imagine there’s a law that says anyone caught stealing has to pay a fine of $1000. Now, let’s say a homeless person stole a loaf of bread because they were hungry. A judge who follows legal realism might consider the homeless person’s situation. They might decide that it’s not fair or practical to make the homeless person pay such a big fine when they were just trying to survive. So, the judge might reduce the fine or find another way to handle the situation, like community service.

In this example, legal realism means the judge isn’t just blindly applying the law but thinking about what’s fair and reasonable given the circumstances.

Question 39

What are the three categories Aristotle believes that people fall into?

Answer 39

Aristotle believed that people fall into 3 categories:

1. Born Good
2. Can be made good through education
3. Most are simply ruled by passion and education alone will not make them good. Law will make theme good because they will fear the consequences

Question 40

What is Marxism

Answer 40

An economic and political theory states that law is an instrument of oppression and control that the ruling classes use against the working classes

Question 41

Give an overview of Karl Marx

Answer 41

He saw that there were many people who worked in factories, mines, etc and that there were very few people who controlled these “means of production.” This small group of people who controlled the production was known as the capitalist class

• He noted that British law disproportionately favoured the working class, specifically, there was a law that made the act of forming a union illegal, Thus, helping to ensure that the working class did not gain power.

Owning a business requires innovation, owning a business makes you apart of the working class

school is trying to get you into the matrix, but its also your job to be innovative to not end up there

He developed the communist manifesto, and then was arrested for inciting rebellion and kicked out of france and lived in england

Question 42

What is Feminist Jurisprudence

Answer 42

The theory that law is an instrument of oppression by men against women

• The development of feminist Jurisprudence is a product of the women’s liberation movement in the 1960s
• These theorists believe that law is an instrument of oppression
• It is believed that laws oppress women on behalf of men
• The idea is that the law is not in fact applied equally to men and women.
• The difference in treatment between men and women is noted in some key historical examples: women were not

to vote until 1918; And until 1925, only a man could file for divorce

Finally, the last example is that legal institutions are
15 systematically biased not allowing women to attain positions of power and prestige - this could be due to the fact that long working hours are often rewarded and if a woman is the primary caregiver, this disproportionately affects women.

Question 43

What is the concept of restrain of power

Answer 43

• Philip Selznick was a law professor at Stanford University

Holding government accountable

• Selznick argued that the law’s essence does not lie in “the exercise of power and control, but in the predictable I restraint on those using that power.” It basically it means that the true essence of law is not about exerting power and control over people, but rather about providing

In other words a country will have the best laws and justice will be achieved only when there is an independent body or branch of government that can challenge review and limit the laws made by the ruling power.

Question 44

What is the concept of Procedural Justice

Answer 44

• This theory is based on the idea that a country’s laws must have procedural fairness in order for the laws in that country to work
• If the rules by which we administer the law are not fair, the system itself cannot be fair - this is how law professor, Lon Fuller, assessed the quality of a country’s laws

if the procedures are fair, the laws will likely be fair

• Le. A concept of a law trial, here in Canada, is that the Crown has the onus to prove guilt. Would it be fair if in some trials the onus shifted to the accused and in others it remained with the Crown?

Question 45

Who developed the concept of procedural justice

Answer 45

Lon Fuller

Question 46

Who developed the concept of Restraint of power

Answer 46

Philip Selznick

Question 47

What is the communist manifesto

Answer 47

The Communist Manifesto is a political pamphlet written by Karl Marx and Friedrich Engels in 1848.

In simple terms, the Communist Manifesto says that throughout history, societies have been divided into two main classes: the rich owners of things (called capitalists) and the workers who do the work (called the proletariat). Marx and Engels believed that eventually, the workers would get fed up with being treated unfairly and would revolt against the capitalists, leading to a new society where everyone shares everything equally.

Question 48

What is Das Kapital

Answer 48

“Das Kapital” is a book written by Karl Marx, a famous philosopher and economist, in the 19th century. It’s a big book that talks about how capitalism works and its effects on society.

In simple terms, “Das Kapital” discusses how in a capitalist system, the people who own the factories, land, and resources (called capitalists) make money by paying workers less than the value of what they produce. Marx believed this led to inequality and exploitation of the workers.

Question 49

What is Divine Law?

Answer 49

Divine law is like rules or laws believed to come from a higher power, such as God or the gods, and are usually found in religious texts like the Bible or the Quran.

In simple terms, divine law tells people what to do and not to do based on religious teachings, and it’s seen as having special authority because it comes from a higher power.

Question 50

What is the difference between Divine & Divine-Positive law?

Answer 50

Divine law is a broader concept that encompasses all laws believed to originate from a divine authority, such as God. It includes both general moral principles and specific commands found in religious texts.

On the other hand, divine positive law specifically refers to the specific rules or commands directly given by a divine authority, such as God, as revealed in religious texts. These commands are considered obligatory for believers to follow.

In simpler terms, divine law includes both general moral principles and specific commands, while divine positive law refers specifically to the specific commands given by a divine authority.

Question 51

Name all of the natural law theorists

Answer 51

1. Socrates
2. Plato
3. Aristotle
4. St. Thomas Aquinas

Question 52

Name all the positive law theorists

Answer 52

1. Hobbes
2. Locke
3. Bentham
4. Austin
5. Marx

Question 53

Name all the Modern Contemporary Theorists

Answer 53

1. Lon Fuller
2. Selznick

Question 54

What are St. Thomas Aquinas’s 4 qualities of just laws?

Answer 54

1. The law is a product of human reason (ie: it is based on natural law)
2. It is made for the common good
3. It is made by the ruler, who must have the care of the community at heart
4. It is promulgated or published so that everyone knows it

Question 55

What are the 4 laws Aquinas Identified

Answer 55

1. Eternal Law
2. Natural Law
3. Divine Positive
4. Human Positive