Constitution, Society, and Leadership

1. Week 4 Unit 4 History of Law: Category III: Positive/Realist Law Based on Reason Constitution, Society, and Leadership

2. Category III-iUnit Introduction-i • This Unit looks at theories whose foundation is legal positivism or realism based on reason • As noted in an earlier presentation, • Positivist and realist theories tend to be based on the will of the legislator or the judge • But there are some exceptions • With an emphasis on reason rather than will

3. Category III-iiUnit Introduction-ii • This Unit looks at three of those exceptions • Common Law against Natural Law • The English Constitutional Tradition • Law as the Basic Law of the Constitution

4. Category III-iiiCommon Law vs. Natural Law-i • Recall James 1 and Francis Bacon who defend • Natural law over common law • King’s prerogative over parliamentary sovereignty • Sir Edward Coke (d.1634) • Contemporary of James and Bacon • Rejects royal prerogative • Emphasizes the judicial function of parliament

5. Category III-ivCommon Law vs. Natural Law-ii • Moves between positivism and realism • Main point: parliament subject to limits of common law • Which becomes valid only through the court’s decision • So, judicial review of legislative acts is legitimate • Like the decision in Marbury v. Madison

6. Category III-vEnglish Constitutional Tradition-i • The English Constitutional Tradition • Combination of natural law and legal positivism • With emphasis on reason • Two major representatives • Richard Hooker (d. 1600) • Thomas Smith (d. 1577)

7. Category III-viEnglish Constitutional Tradition-ii • Hooker • Law=“a directive rule onto goodness of operation” • A dictate of reason • Foundation for constitutionalism • Thomas Smith creates specific methods for it • “Law” encompasses both rules and rights • Tries to defend church government against Puritan critics

8. Category III-viiEnglish Constitutional Tradition-iii • Tries to fit Aquinas’ views into Anglican Protestantism • Aquinas: A rational ordered universe couched in natural law • Hooker: “Law as a coherent system of the world as a whole” • Four sorts of law- held together by reason: • Unalterable • God’s eternal law • Natural law • Violable • Law of angels • Human law • Law of reason • Statutory law • Customary law • International law

9. Category III-viiiEnglish Constitutional Tradition-iv • Replaces papal authority with political authority • Anglican and Lutheran: Prince as the head of the Church • Belief in free will • Center of his argument • “The laws of well-doing are the dictates of right reason” • No one knowingly does the bad or the false • “The most certain token of evident goodness is that the general persuasion of all men do so account it” • As the assent of God himself • Where else would all get the same idea?

10. Category III-ixEnglish Constitutional Tradition-v • Sum: Law =“The basic constitutional order, resting on popular consent; from it all other laws derive their obligatory consent” • Hooker’s theory of a legal community • “Its validity rests upon the rational insights of men into the nature of human ‘living together’” • Therefore, the necessary duty of obedience

11. Category III-xEnglish Constitutional Tradition-vi • Sir Thomas Smith • Distinguishes English law from Roman Law • Like Fortescue • “Every Englishman is present in parliament—by the person or delegates” • So consent of parliament=consent of everyone • Separation of powers: legislative, executive, judicial • Question remains: who has last word when King and parliament disagree?

12. Category III-xiBasic Law of the Constitution-i • Law as the Basic Law of the Constitution • Combination, based on reason, of • Natural law • Legal Positivism • Two major representatives • John Locke (d. 1704) • Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (d. 1755)

13. Category III-xiiBasic Law of the Constitution-ii • Locke • The most influential figure on the Declaration of Independence • Thomas Jefferson-- the 3 greatest minds ever: • Isaac Newton • Francis Bacon • John Locke

14. Category III-xiiiBasic Law of the Constitution-iii • Natural law as the foundation and guiding principle of a legal community • People have a right to establish this legal community • Legislative power as the center of the legal community • Subject to the laws of nature and reason • Law is positive legislation that the legislature makes for the common good • The legislature is the highest power in the commonwealth • It receives its “legitimization from the decision of the people as fixed in the constitution” • Grounded in one’s natural right to the protection of one’s property

15. Category III-xivBasic Law of the Constitution-iv • Montesquieu • “Law is oriented to the idea of justice and must be judged by it” • Each community must decide what justice is according to the spirit of the community • Separation of powers

16. Category III-xvBasic Law of the Constitution-v • Nine sorts of law according to their function with relation to the various things in life • Law of nature • Divine law • Ecclesiastic/Canon law • International law • General constitutional law • Particular constitutional law • Law of conquest • Civil law • Family law • The constitution keeps these laws separate

17. Week 4 Unit 4 History of Law: Category III: Positive/Realist Law Based on Reason Constitution, Society, and Leadership