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JUDGING and the NATURE OF

JUSTICE

It is the mark of an
educated mind to be
able to entertain a
thought without
accepting it.
Aristotle

WHAT IS LAW ?

LAW
Enforceable rules
governing relationships
among persons
between persons and
society

EVOLUTION OF LAW
The Code of Hammurabi
First written legal code
Developed in Babylonia
About 2000 BC

MOSAIC LAW

Basis of US Legal System

Heraclitus

About 600 BC

All human law came from some divine


inspiration

SOCRATES

About 400 BC
Recognized the tension between law which is
just and law which is merely what
government says it is

Platos Minos
SOCRATES Law is the correct
judgment of the state.
States legislate a concept of justice and
particular conceptions of justice.
Only decrees based upon knowledge of
objective justice and injustice can
count as true laws

Aristotle
The Father of Natural Law

At his best, man is the noblest of all animals; separated from law and
justice he is the worst.

NATURAL LAW
Natural law comprises the essential rules
without which no human society could
be considered just: rules good for all
times and places.

NATURAL LAW
Assumes there is a higher or
universal law that applies to all
people everywhere
Assumes that law, rights and
ethics are based on universal
moral principals inherent in nature
discoverable through the human
reason

Nicomachean Ethics
The law is reason, free from passion.
Law = when reason is used to analyze
human nature and deduce binding
rules of moral behavior.
Certain rights or values are inherent in
or universally cognizable because they
are created by nature.

The only stable state


is the one in which all
men are equal before
the law.
Aristotle

CICERO
Roman Statesman
About 100 BC
Famous Definition
of
Natural Law

CICEROS Natural Law


True law is right reason in agreement
with Nature; it is of universal
application, unchanging and
everlasting; it summons to duty by its
commands, and averts from
wrongdoing by its
prohibitions....There will not be
different laws at Rome and at Athens,
or different laws now and in the
future, but one eternal and
unchangeable law will be valid for all
nations and for all times...

ST. THOMAS AQUINAS

About 1265
Law; an ordinance of reason for the
common good, made by him who has care of
the community.

Summa Theologica
Law is the rational creature's participation in the
Eternal law. Yet, since human reason could not fully
comprehend the Eternal law (God), it needed to be
supplemented by revealed Divine law (Church).
All human laws were to be judged by their
conformity to the natural law.
An unjust law is not a law, in the full sense of the
word. It retains merely the 'appearance' of law
insofar as it is duly constituted and enforced in the
same way a just law is, but is itself a 'perversion of
law.

HOBBES AND LOCKE


1700s
British

philosophers

Proposed a theory
of law building on
natural law
principles

Hobbes and Locke


Government and the people have a
social compact (contract) where
people possess rights and government
protects the rights

Declaration of Independence

We hold these truths to be self-evident, that all


men are created equal, that they are endowed
by their Creator with certain unalienable
Rights, that among these are Life, Liberty and
the pursuit of Happiness.That to secure
these rights, Governments are instituted
among Men, deriving their just powers from
the consent of the governed,That whenever
any Form of Government becomes destructive
of these ends, it is the Right of the People to
alter or to abolish it, and to institute new
Government, laying its foundation on such
principles and organizing its powers in such
form, as to them shall seem most likely to
effect their Safety and Happiness.

US CONSTITUTION

US CONSTITUTION
The US Constitution does not grant
rights, but rather gives government the
power to protect those rights that the
Founding Fathers believed were
fundamental and inalienable for all
people

Live your life as though your


every act were to become a
universal law.

Immanuel Kant

LEGAL POSITIVISM
No inherent or necessary connection
between law and ethics or morality
Law is conceptually separate from
moral and ethical values,
Law is posited by lawmakers, who are
humans
Law is ultimately a matter of human
custom or convention.

LEGAL POSITIVISM
Whether a society has a legal system depends
on the presence of certain structures of
governance, not on the extent to which it
satisfies ideals of justice, democracy, or the rule
of law.
What laws are in force in that system depends
on what social standards its officials recognize
as authoritative; for example, legislative
enactments, judicial decisions, or social
customs.

LEGAL POSITIVISM
The fact that a policy would be just,
wise, efficient, or prudent is never
sufficient reason for thinking that it
is actually the law, and the fact that
it is unjust, unwise, inefficient or
imprudent is never sufficient reason
for doubting it.

LEGAL POSITIVISM
Law is a matter of what has been posited
(ordered, decided)

Positivism is the view that law is a social


construction.

JEREMY BENTHAM
1750s
Nature has placed mankind under the
governance of two sovereign masters,
pain and pleasure.
It is for them alone to point out what we
ought to do, as well as to determine what
we shall do.

UTILITARIANISM

UTILITARIANISM
the right act or policy was that which
would cause "the greatest good for the
greatest number of people
also known as the principle of utility

LEGAL POSITIVISM
The Province of
Jurisprudence
Determined (1832)
Influenced by
Bentham

Austin's theory of law


the law is command issued by the
uncommanded commanderthe
sovereign;
such commands are backed by threats
of sanctions; and
Law is created by position

LAW

JUSTICE

MORALITY

LAW
JUSTICE

MORALITY

JUSTICE
LAW

MORALITY

LAW
MORALITY

JUSTICE

LAW

JUSTICE

MORALITY

LAW

JUSTICE

MORALITY