CRIM 135 Lecture Notes - Aka People, Big Society
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TOPIC #1 - THE NATURE OF LAW
1. What is law?
Rules that government human conduct
Laws are rules, rules are not laws
Laws are rules that are made through a formal process for establishing and enforcing these laws
Formal processes include courts
2. Values: The foundation for laws
(a) What are values?
Our general beliefs of right and wrong
What we value and what we don’t
Where we get these values?
We get these values from our parents (major roles parents play)
Community leaders help shape our values (people we look to having a leadership role in a major or minor
roles, such as media, politician, celebrities, teachers… etc.)
(b) The role of values in the law/legal system
All laws based on values, all laws reflect on values
No such thing as a “value free” law
Who’s values do they reflect?
-Many laws reflect the value of the people (we’re the ones who turn and make the laws, we’re the one who
choose and elect)
oSuch as people vote for government, government makes the law
oHowever, government isn’t as popular, therefore do not reflect the broad population
oJudges (how do judges apply those laws? Their own values influence how they apply and interpret the
3. The Major Theoretical/Philosophical Perspectives on the Law
Where fundamentally where these come from?
Philosophical base of where these values come from, why the world is this way, how is it should be different?
-Major source: Religion (historically played a major role), a form of philosophy, ideologies (ex: communism,
(a) Positivist Perspective
Maintain that process is more important than substance
Using a proper process to make the law is more important than the moral content of the law
Separation between law and morality
Sometimes the law will reflect morally correct or morally wrong, but it is the law
As long the law went through the valid process, than it is the law
oAlthough it might be unjust or invalid, it is a law
oMade by the sovereign (king or queen, aka people through parliament)
Concerned of what the law is rather than what it ought to be
If we encourage and accept the law what it ought to be, we’re questioning the validity of the moral judgment
Leads to implication and discussion if the law should be obeyed, as long it is validly enacted,
must be obeyed
Certainty& predictability = stability
oIf you know what the law is, you govern your life accordingly
oIf you don’t have a clear idea what the law is, then we don’t have a common view of what law is, ends
up to chaos
Cares about morality of the law, care if the law is unjust
oDeals with it by changes the law in a legal process
oLobby the bill to decriminalize it
Most widely held view
(b) Natural Law Perspective
Insists on a clear link between law and morality
The unjust or immoral law is not valid = can disobey that law
Historically, it has a religious basis that conforms to God’s will
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