Notes on chapter 2

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Notes on chapter 2

Because of attempts to comprehend the origins and nature of our laws, legal philosophy has unearthed two basic customs: Natural law & positive law.

Natural law is a collection of utopian, durable and concrete regulations, which govern the creation of every positive law.

The ancient civilizations made no distinction between the will of the gods & the laws that humans live by.

Plato thought that there was a set of universally & perpetually "good" laws that mankind should strive to base their actions on, although he did not expect that they could actually be upheld in practice.

Aristotle believed that the perfect set of laws would reflect the behavior of nature & that we could discover these laws by rationally deducing how to mimic the laws of nature.

The Roman legal philosopher Cicero felt that when laws conflicted with the natural law, they should not be obeyed.

In the "Dark Ages" the laws of the Church were believed to have supreme authority over all other man-made laws.

St. Tom Aquinas was a proponent of the view that humans have certain natural rights that cannot be taken away from them by any government or legal system.

Positive law stems from the theory that laws are sovereign and the only true measure of morality is the degree to which people obey the law.

Positive law is the system of rules that have been created by humans in an attempt to put natural law into practice.

Positive law was born out of England's struggle to break free from the control of the Pope.

According To Jeremy Bentham, a legal body was required to lay down the law for people to follow and this law had to be enforced.

John Austin recommended that the law be devised so that it causes the most benefit for the most people.

The theory of utilitarianism states that the law should be judged primarily on it's usefulness as a means of maintaining order & that it should serve to provide the greatest happiness to the greatest number of people.

When writing laws all these points must be kept in mind.

The word "law" has a triple meaning:

1. A code of rules enacted by a governing body, which lay out our rights & duties.

2. The legal concepts & social values that we judge these rules by.

3. The institutions, agencies & procedures that perform specific legal tasks.

Society needs laws to maintain order & facilitate civil interaction:

>> Laws act as policy instruments that enable the perusal of values & goals common to society as a whole.

>> Laws act as a system of peaceful dispute resolution.

>> Laws serve to protect our personal safety, property & rights.

>> Laws ensure stability within our social & economic relationships.

There are 3 ways to tell if a rule is a law:

1. Laws are mandatory.

2. Laws always have a means of enforcement.

3. Laws impose a system of penalties & remedies.