Title

Law
Quick revise
The Rule of Law
 
The rule of law is the principle that law should rule.
  • Liberals see law as a guarantee of liberty
    • The fundamental purpose of law therefore is the protection of rights
    • LOCKE ‘right to life, liberty and property’
  • ARISTOTLE ‘government of law, not of man’
  • DICEY’S 4 features of the rule of law (page 154)
Natural Law
  • Natural law, or the law of nature, is a philosophy of law that is determined by nature, and so is universal.
  • PLATO ‘philosopher kings’ have knowledge of unchanging moral laws which only they knew
  • This line of thought was continued by ARISTOTLE who believed that the purpose of law was to encourage humankind to live with virtue
Positive law
  • Positive laws are human made laws that oblige or specify an action within a territory otherwise punishment may be necessary
  • LOCKE and THOMAS JEFFERSONthe purpose of human made rights is to protect our God given rights
  • AQUINAS human laws have a moral basis
 
Similarities
Differences
  • Both uphold justice – natural through its fidelity to higher principles and positive through its process (substantive vs procedural)
  • Both or either can incur punishment
  • Natural law is achieved through reason, and positive law is the application of human reason
  • Natural law is seen as more just because it is less likely to be manipulated for immoral ends
  • Different originsnatural law comes from higher power and so is criticised for mysticism, and positive law derives from humans/civic society
  • Natural law is unchanging (PLATO) whereas positive law is able to respond to the needs of society at the time (AUSTIN – ‘legal positivism’ – law is changing and enforced by a sovereign superior’)
  • Law is human, so how can we criticise it? (WENDELL HOLMES – law is human action, nothing more)
 
Law and Liberty
  • J.S.MILL‘the only reason why power of one should be exercised over another is to prevent harm to others’ –‘over his own body and mind the individual is sovereign’
    • Law should only restrict the individual in the realm of ‘other regarding actions’ and never ‘self-regarding actions’
    • However, there is a blurred line as to what is defined as ‘harm’ to another
      • Also, who comes under the category of ‘others’ – e.g abortion
  • PATRICK DEVLINthere is a public morality which must be upheld by law
    • some believe that the question of morality is too complex to be decided by the state, and must be left to the individual
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