Legal studies readings
docx
keyboard_arrow_up
School
University of Waterloo *
*We aren’t endorsed by this school
Course
100
Subject
Law
Date
Jan 9, 2024
Type
docx
Pages
3
Uploaded by melgraore
Legal studies readings
Quiz 1: weeks 2 and 3
Quiz 2: week 7
Quiz 3: week 8
Quiz 4: week 9
Week 2 content
1a. classical natural law
Natural law in ancient Greece: Sophocles Antigone
-
Antigone
is an example of law understood through classical natural law theory. Here,
law is found and followed through appealing to a higher order of justice, one that is
beyond mortal men. Indeed, Antigone, as a woman, is the character who knows and
follows this higher natural law
-
The play shows the consequences of transgressing this higher eternal justice:
Everyone dies. And the Chorus concludes with a message that human laws should
always be made in reverence to eternal, divine, and infinite laws of nature and
justice
Natural law in ancient Greece: the trial of Socrates
-
Socrates lectured in the main square of Athens on themes of why we ought to be
law-abiding and ethical. Plato, who famously wrote down Socrates’s public lectures,
wrote of justice as a natural state of being, decipherable through logic and reason.
In Plato’s writings, a just society was one that respects divisions and hierarchies of
classes of people, who are ordered and educated to play their part in the just
society.
In such a society,
law is necessary to reflect eternal, natural justice
.
Justice was believed to be the natural state of civilized societies
and individual
beings
atural law in ancient Greece: Aristotle
-
For Aristotle, justice was natural and conventional,
not eternal,
as
Socrates’s
justice
is according to Plato’s writings.
Aristotle believed that
natural justice
arises from the nature of things
. He distinguished natural forms of justice from
those that depend on convention—arising as just because of human intervention
-
For Aristotle, the pursuit of life was the pursuit of happiness and so he believed that
humans needed basic conditions to thrive, including a political environment.
-
What is law for Aristotle?
Law is the essential component of the political
environment that ensures the basic conditions for people to be trained in, and
acquire habits of, living a virtuous, just, happy life
Natural law and Christianity: Augustine and Aquinas
-
The role of the law, to put it simply, was
to facilitate people (God’s children) to
reach the natural state (God)
-
Augustine of Hippo
(354–430 CE) was a Neoplatonist, in that he followed a similar
understanding of justice as that of Plato and Socrates: Justice is eternal, a natural
state of being decipherable through logic and reason and careful study.
Augustine
believed that justice was akin to morality, and therefore to be “just” was to be
Christian.
The role and purpose of law was to bring humans closer to justice
-
Thomas Aquinas
(1225–1274 CE) was an Aristotelian theologian.
-
Interestingly, Aquinas is credited with rediscovering Aristotle for Western
philosophy. He studied Aristotle through Arabic sources because the Western
tradition in the 12
th
and 13
th
centuries had forgotten Greek philosophers in the
original.
-
Aquinas believed that
as rational creatures participating in eternal law, humans
who were guided and taught how to lead Christian lives would move toward
common good
-
Aquinas believed that
as rational creatures participating in eternal law, humans
who were guided and taught how to lead Christian lives would move toward
common good
1b. Contemporary natural law
Apartheid in south Africa
-
In 1949, the apartheid South African government implemented the Mixed Marriages
Act to prohibit marriage between Europeans and non-Europeans. This statute
remained law until it was repealed in 1985.
-
Nelson Mandela, and his anti-apartheid political party the African National Congress
(ANC), declared apartheid law “immoral, unjust, and intolerable” (Pavlich 28)
Mandela believed that all people, regardless of colour, had a duty to protest these
laws, and intentionally disobey them, based on the fundamentally unjust nature of
these laws.
Migration, detention and deportation
-
Canadian Immigration law, legislated under the Immigration and Refugee Protection
Act (IRPA) of 2001 stipulates that it is lawful under section 48 to issue a Removal
Order, mandating the individual to leave the country “as soon as possible” (IRPA,
2001).
-
An individual may be issued a Departure Order (30 days to leave), Exclusion Order
(cannot return for one year), or Deportation Order (permanently barred from
returning to Canada, except if you receive authorization to return to Canada and
pay back the cost of deportation)
Lon fuller and contemporary natural law theory
-
The key philosopher of contemporary natural law is
Lon Fuller
(1902–1978).
-
Fuller believed that there was an
internal morality of law
, which meant that
there
was no real distinction between what
is
and what
ought to be
.
Rational law-
making, according to Fuller, was a craft with its own internal logic (this harkens back
to Aristotle) and within this logic, it is
internal morality that makes law possible
.
-
According to Fuller, every legal system, by definition, is a way of making human
conduct amenable to the regulation of rules, and always reflects an underlying
morality.
In order to be called law, there needs to be an internal morality; all
facts are tinged with value
. If there is no internal morality, these would be “rituals”
and “formalities,” but not law.
-
Fuller concludes that
law
is meant to subject human conduct to rules that are
constructed according to a morality.
This morality has developed through
customs
(customary laws).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help