THEORIES AND CONCEPTS OF

LAW
Unit 1

NATURAL LAW and POSITIVE LAW

Natural Law is the philosophical
basis of law.
Positive Law is the working of the
law through the authority of the
state.

Natural Law
What do we mean by the term
Natural Law?

Natural Law
Socrates
Morality is an important part of
natural law.
Laws are meant to help people
to live the right way; they help
people become better people.

Natural Law
Plato
Harmony between the individual and
society are important components of
morality and thus natural law.
Human laws must be based on
knowledge of the eternal laws that rule
the universe.
Education produces good behaviour.

Natural Law
Aristotle
People are not all good, and education
alone cannot ensure that people will be
good.
Only laws can ensure the good
behaviour of all people.
Using reason, humans can develop their
greatest potential within the state.

Natural Law
St. Thomas Aquinas
Natural law is the eternal law (from God)
that can be known by humans.
Human law is the ordinance of reason
for the common good, and is made
public by societys ruler.
This ruler is responsible for the care of
the community.
It is published so that everyone knows it
(made public).

What was the significance of

Thomas Hobbes
All people are prone to violence and
disorder; this is their natural state.
People did not form governments to
recognize and defend their natural-law
rights, but to ensure law and order
through strong leadership.

What was the significance of

John Locke
People have natural rights; which
include life, liberty, and property
The law of the state must protect these
fundamental rights.
If the ruler violated the natural rights of
the people, the people were justified in
rebelling against the ruler and replacing
the government with one that respected
these rights.

What was the significance of

Jeremy Benthams
Utilitarianism:
Laws can be judged based on their
utility to society
Just laws provide the greatest
happiness for the greatest number of
people.

What was the significance of

Karl Marx
Focused on the failure of the legal
system to treat society equally.
Since the ruling class controls the
formation of the law, they use it to
suppress the working class.
This idea can be extended to describe
the inequalities of the law as applied to
minority groups, as well as feminine
jurisprudence.

What is the significance of

Feminine Jurisprudence
The theory that the law is used as an
instrument of oppression by men
against women. (example: voting)

Procedural Justice
The idea that a valid law must include
procedures that are fair and workable
(can be applied equally?)

Restraint of Power
Justice depends on there being an
independent body or branch of
government that can challenge, review,
and limit the laws made by the ruling
power (Courts?).

Application to Canadian Law

The Rule of Law means that all laws and
procedures in Canada must be applied equally
and fairly to all members of society.
The courts, particularly the Supreme Court of
Canada, are responsible for acting as a
restraining influence on the law making power
of Parliament.
The Charter of Rights and Freedoms protects
the rights of individuals and minorities, but these
rights can be limited for the common good.

Theories of Law
Law Theories
Natural

Positive

Utilitarian

Legal Realist

Marxist

Feminist

Source of Law

Purpose of Law Role of the State

Role of the
Citizen