LEGAL THEORY

Sources Understanding the Law,

Dimensions of Law, Canadian Legal Information Institute (CanLII)
CRT - https://spacrs.wordpress.com/what-is-critical-race-theory/
 Ancient Legal Theory
Natural Law the theory that all humans are
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 independent of
human will
If a wise and beneficent God created the world, then
he/she also created laws to govern the natural world
use of reason
The closer humans laws mirror natural laws, the better
society will function
Natural Law Theory
A society is defined by its communal moral and value system
(Patrick Devlin)
Morality and the law are inextricably joined
Naturalists say that the law must be concerned about private
matters because private matter do affect society.
Ex. Society will not be concerned about one gambler, but if
half the population were gambling, such a situation would
have and enormous impact on society.
Natural law proponents agree that it is difficult to find common
ground when it comes to morality, but not impossible
Society has a right to determine what it deems morally
unacceptable and to use the law to formally express its view
Natural Law
Socrates used process of dialectic to arrive
at the meaning of a term and how it fits into
the search for the good life
Tried to discover reason through question and
discussion search for what is moral and just
Because of his teachings, he was tried for: 1)
Corrupting youth, and 2) Not believing in the gods
whom the state believes in
 Aristotle and Rationalism
Humans are political creatures cannot be
good purely because of education
Rather they fit into 1/3 class of people:
Those born good,
Those who can be made good through education,
Or those who are rules by their passions (**majority of
people)
Rationalism process of using reason to
analyze the natural world from observation
(modern scientific method)
 Aristotle and Rationalism
Through rationalism, we can determine what is
good/just vs. what is evil/unjust

Only law (fear or punishment) that can control

people and convince them to follow
reason/avoid evil
Purpose of law:
Regulate human life in the state
Ultimately, help citizens use their faculty of reason
to reach their greatest potential (good life)
St. Thomas Aquinas
1224-1274
Identified 4 kinds of laws:
1. Eternal Law
Body of laws by which God created he universe and
keeps it in operation (impossible for humans to know
because it is outside them impossible to
understand mind of God)
2. Natural Law
Law as it operates in humans we use our faculty of
reason to know them and see its workings in the
world around us
Examples: - Parents should care for their children
-each person should try to preserve his/her life
Do not do harm to others, assist the poor/sick
St. Thomas Aquinas
3. Divine Positive Law
This is law that has been revealed in the
scriptures (Ten Commandments)
4. Human Positive Law
These are laws that humans have made in order
to achieve a properly functioning society
Codified laws and punishments Though some
are obvious (Murder is wrong), they need to be
written/defined down for society to function
Humans are moral, and should live in a way
that will unite them with God after death
People did not have to obey a law that
conflicted with Divine laws
Law must be a product of human reason, be
made for the common good,
Your Turn!
Should laws ever be
ignored?
Former Gun Registry?
Physician Assisted
Suicide? Blood
Transfusions?
Kim Davis?
 English Theorists - Positive Law
The theory that law is a body of rules
formulated by the state, and that citizens are
obliged to obey the law for the good of the
state governments role is to prevent one
from harming others

Introduced as part of the religious/political

upheaval in 16th-17th century Europe
No moral purpose, and not a matter of
conscience challengers of the law would
face penalties
Positive Law
Positivists argue that the connection between
law and morality is arbitrary laws must be
clearly defined by the state

Enforcing morality on a reluctant population

has also proven to be difficult
Leads to undercover work (drug dealers/buyers,
prostitutes, etc.)
Thomas Hobbes
1588-1679
In Leviathan, he proposed new purpose to law
To rule over the state/people as to maintain
law and order
People were violent and disorderly purpose of
government is not to defend natural law rights,
but control the people to avoid war and
destruction
People should surrender to king/monarch The
king alone had the power to enforce law/his will
John Locke
1632-1704
If the king violated natural rights, then people
were justified in rebelling replace government
with one that respected natural rights
Natural rights Life, liberty (speech, religion, and thought), and
property no person should deny these rights to another
Through the consent of the people, government
was given the authority to control the state and
preserve these rights by enforcing
rules/penalties
Strong influence on Jefferson, American/French
Revolutions
Jeremy Bentham & John Austin
People would try to achieve the maximum
amount of pleasure and happiness in their lives
Proposed a way to judge law as good or bad
laws would be evaluated by its utility to society
as a whole (for the good of all)
Utilitarianism the greatest good for the
greatest number of people
Austin added that laws must be evaluated on
an objective standard, and that once passed,
people would have to obey for the good of
society This would prevent people from
subjectively judging laws
John Stuart Mill
Similar to Bentham in that laws should serve a
utilitarian (useful) purpose, but argued that the
social good was altruistic in nature social
good

actions are right in proportion as they

promote happiness; wrong as they tend to
reverse happiness
Your Turn!
Compare/contrast?

Pros and cons of Natural/Positive Law?

Examples in our society?

Which would you subscribe to?

Modern Legal Theories
Legal Realism examines law in a realistic
rather than theoretical fashion belief that law
is determined by what actually happens in the
courts as judges interpret/apply law
Different judges have different backgrounds,
perspectives, and training by that logic, their
decisions could be different even though its the
same case
These decisions become case law will have an
impact on future court decisions
Legal Formalism
In contrast to realism, Legal Formalism is a
positivist approach in which the judge applies
the laws as they are
Laws are not interpreted, or applied as they
could/should be, but only as they are written

Problems with this concept?

Marxism
Karl Marx (1818-1883) - Purpose of law to
maximize the interests of the ruling class
Law = class rule
Marxism an economic/political theory that
states that law is an instrument of oppression
and control that the ruling class uses against
the working class

Is this concept still current? Does our legal

system favour a social class?
Feminist Jurisprudence
Legal theory that law is an instrument of oppression by men
against women
Similar to Marxism, but rather law is used by men to oppress
women (result fo the 60s Womens liberation movement)
Feminists argue that the law, historically, treats women
differently than men:
Women were not persons until 1929 Right to vote in 1918
(1940 in Quebec) Men could file for divorce on grounds of
adultery, but women could not (1925)
1989 Brooks v. Canada Safeway Ltd. Denying insurance
benefits to pregnant women is illegal
Lastly, legal institutions are systematically biased against
allowing women to attain positions of power (First women to
SCC1982)

Is all this still true? ThoughtsOther legal milestones for

women? (Justine Blaney) Is law still biased against women?
 Critical Race Theory
Derrick Bell, Alan Freeman, and Richard Delgado
Arrived in 1980s Focuses on the relationship of
law and power as a function of a racial hierarchy

Proposes that laws favour white privilege and

marginalize people of colour

Would laws be different if they were made by

people of colour, different sexual orientations,
Aboriginal perspectives, etc?
Critical Race Theory
Bell & Freeman were frustrated by the slow pace
of racial reform in the US
Traditional approaches of combating racism were not
as effective as they once were
Can also include being marginalized by race,
sex, class, national origin, and sexual orientation,
and how their combination plays out in various
settings
End goal for CRT eliminate racial oppression
as a broad goal of ending all forms of
oppression
Laws should focus on equality, not oppression
Concept of Restraint of Power
Philip Selznick argued the validity/quality of a
countrys laws does not lie in the exercise of
power/control, but rather the predictable
restraint of those using the power
Essentially, a fair and lawful society has
checks to prevent those in power from
abusing it (There are people that CAN question
the law/procedures)
Application of Legal Theory
Canada is more closely aligned with Selznicks
validity of law than we are dictatorship
Traditionally, the court system is the
independent body that challenges laws
when they violate rights/values
Remember the Rule of Lawno one is above
the law
Roncarelli v. Maurice Duplessis Abuse of
legal power
 Positive Law in Canada
Federal government can pass laws for the
peace, order and good government of Canada
Their power does not go unchecked (Provinces),
but implement laws when necessary
E.g. War Measures Act 1970, Anti-Inflation Act
1975
Even in the Charter, rights can be limited
based on reasonable limits prescribed by law
(section 1 & 33 (notwithstanding clause))
Your Turn!
Positive Law or Natural Law Which are you
and why? How is modern law theory
influenced by your choice (positive or natural)?

How does Canadian society in general react to

views that challenge our normal way of
thinking?

Your Turn First Nations and legal theory