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History of Legal Thought

History of Legal Thought. “One of the great delusions in the world is the hope that evils of this world can be cured by legislation.” –Thomas B. Reed. Ethical Though. Aristotle’s virtue theory (prudence, courage, temperance, justice) Kant’s duty theory Bentham and Mill’s utilitarianism

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History of Legal Thought

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  1. History of Legal Thought “One of the great delusions in the world is the hope that evils of this world can be cured by legislation.” –Thomas B. Reed

  2. Ethical Though • Aristotle’s virtue theory (prudence, courage, temperance, justice) • Kant’s duty theory • Bentham and Mill’s utilitarianism • Natural law morality • Divine Command Theory • Relativism • Subjectivism • Skepticism

  3. What is law? • Law has been defined as “an ordering of reason, promulgated by the person in charge of a community, for the common good.”

  4. What is law? • All law must be reasonable • All law must be publicly disclosed • All law must be promulgated by an authority. • All law must be for the common good, not for the self-interest of a ruler or the ruler’s favorites.

  5. Hammurabi's Code • Laid down by Hammurabi during his 43 year reign of Babylon from 1797 – 1750 BC • Cover wide variety of criminal and civil offences. • Provide fines for certain crimes and severe punishment for other crimes. • “If a son strike his father, his hands shall be hewn off.” • “If any one steal the property of a temple or of the court, he shall be put to death, and also the one who receives the stolen thing from him shall be put to death.”

  6. Ancient Egypt • The Pharaoh was a god. He ruled the people as a deity and his word was law. • Look at the story of Joseph and how Joseph had power over the people. • The people owed absolute allegiance to the Pharaoh and the Pharaoh cared for the people.

  7. Ancient Israel • The Noachide Commandments • No idolatry • No blasphemy • No bloodshed • No incest or adultery • No theft • The right to establish courts of law • No eating of blood

  8. Ancient Israel • The Christian counsel at Jerusalem made the list to be 4 laws (Acts 15:22-29) • No idolatry • No perversions (adultery) • No strangled meats • No eating blood

  9. Ancient Israel • The Mosaic Covenant and the Divine Code • No other Gods before Me. • No idols • No blasphemy • Respect Sabbath • Honor parents • No murder • No adultery • No theft • No false testimony • No coveting

  10. Shema Israel • "“Hear, O Israel: The Lord our God, the Lord is one! You shall love the Lord your God with all your heart, with all your soul, and with all your strength. “And these words which I command you today shall be in your heart. You shall teach them diligently to your children, and shall talk of them when you sit in your house, when you walk by the way, when you lie down, and when you rise up. You shall bind them as a sign on your hand, and they shall be as frontlets between your eyes. You shall write them on the doorposts of your house and on your gates." (Deuteronomy 6:4-9 NKJV)

  11. Ancient Greece • The Greek tragedy Antigone asks some fundamental questions about law and freedom: • is there a difference between public and private morality • is there absolute morality? • is religion essential to morality? • What is conscience? • Is civil disobedience right?

  12. Ancient Greece • The pre-Socratic philosophers sought to discover a “first principle” from which to explain the world. • Pythagoras thought morality and law should conform their actions to the harmonies common to the universe. • Heraclitus used fire to symbolize the unchanging standard of justice amid the constant change of the world.

  13. Ancient Greece • Protagoras, for whom “man is the measure of all things,” thought of law and political arraignments as matters of human invention. • He argued that one could not depend on some natural disposition toward justice but that citizens must be schooled in politics and justice by their communities.

  14. Ancient Greece • Hippias believed that the natural likeness of humans implies their equality and universal fraternity. • He believed that all political and legal arraignments were fallible. • Which modern theory draws on his ideas?

  15. Ancient Greece • Callicles and Thrasymachus hold that the strong should rule over the weak and that law is a device which allows the weaker to band together against the stronger. • The implication is that obedience to the law or morality is unnecessary for the stronger, except when it is in their self interest.

  16. Ancient Greece • Plato in the “Republic” seeks to refute the ideas of the Sophists by arguing that the impulses of an individual can never be satisfied if they shake off the direction of reason. Tyrants will arise and take advantage of the populace under the appearance of giving order. Only the wise are able to establish a sound order in society.

  17. Ancient Greece • Plato goes on to argue that society is only established well when we note the parallels of the tripart structure of the soul (reason, emotions, desires) in society (the city’s rulers, its military, and its workers) as the source of moral and political arraignments. The laws of the community need to participate in the eternal principles of justice.

  18. Roman Legal Theory • In the years of the Roman Republic, there was a concept of ius gentium, the law of nations – the idea that there is a natural law or natural justice behind any civil code. • Ulipian and Gaius argued that natural law and civil law meet in the areas of kinship and contract which are common across all cultures.

  19. Roman Legal Theory • The Romans made a distinction between ius (the general system of law and right) and lex (a particular piece of legislation or a particular legal principle within ius). • Under the emperors, the law moved from being based on natural principle to being based on the will of the Caesar. • Justinian in 533 AD codified the Roman laws and all concept of common law was destroyed.

  20. Paul’s Natural Law • Romans 1:17-28, 2:12-16 • Paul states that even without knowledge of scripture, by nature man can know there is a God and a moral code • He goes on to speak about moral psychology and sociology and natural and unnatural desires • He then says that all have this law “written on their hearts”

  21. Thomas Aquinas • Eternal law is God’s providential ordering of natures to their ends, including the design of human nature • Divine law refers to God’s explicit commands, for instance, in the Decalogue from Exodus or the Sermon on the Mount in Matthew

  22. Thomas Aquinas • Natural law involves human participation in God’s eternal law as regards the providential ordering of human life; the use of human reason to reflect on what our common human nature is; and what is required to respect that nature, as found in all human beings.

  23. Thomas Aquinas • Human law consists of legislation of various types including constitutions, statutes, administrative decrees and even customs. Laws of this type are for more specific than natural law and determine matters that natural law leaves indeterminate, but these laws must not violate the previous laws (eternal, divine or natural).

  24. The Break: West from East • The Roman empire collapses into the Holy Roman empire which in turn breaks into two pieces. • The East keeps the idea that the King is the representative of God and the head of the church. • The West divides church and state into two separate institutions: the church being spiritual and the state being secular.

  25. Divine Right of Kings • This idea comes partly from the Eastern idea of the king being the representative of God, partly from a flawed reading of Ro 12. • The kings of Western Europe believed that monarchy, their monarchy, was bestowed by God. • Thus the king had the right to make any law necessary for the “good” of the state.

  26. Magna Charta • This document was forced on John by his barons as a guarantee of their rights and the rights of the lower classes. • The idea of common law and jury trial was born before this, but the right of it was secured in the Magna Charta. • The king no longer had unlimited control to tax. The Barons thus had a check on the king.

  27. Samuel Rutherford • Was a Scottish minister who wrote Lex Rex (The Law is King) • In this book, he refuted the idea that the right of the king was somehow divine. • He argued that Saul and David were not king just because they were anointed by God – they had to be accepted by the people before they could assume the throne and then they were bound by the law.

  28. John Locke • Locke believed that freedom was a moral and natural right. • People have natural rights to life, liberty and property and the function of government is to protect those rights. • He also argued that there is a natural right to revolution if other natural rights are threatened by the government.

  29. The Founding Fathers • Jefferson in the Declaration of Independence draws on the idea of natural law when he says “We hold these truths to be self evident…” • The Constitution, specifically in the Bill of Rights, codifies a number of natural law concepts in the very root of the legal and political system

  30. Martin Luther King Jr. • In his “Letter from the Birmingham Jail” he says “An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things.”

  31. Positive Law • “Societies will continue to need to be regulated by laws, but these should be the products of democratic decision-making and should be open to public revision. The goal of democratic societies is to maximize the opportunities for individual autonomy and freedom of choice.” – Paul Kurtz

  32. Positive Law • “In a democratic society each man must act as he thinks the principles of political right to require them to. We are to follow our understanding of these principles, and we cannot do otherwise. There can be no morally binding legal interpretation of these principles, not even by a supreme court or legislature. Nor is there any infallible procedure for determining what or who is right.” – John Rawls

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