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LWSO 203 - What is law and legal theory_1.doc

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University of Calgary
Law and Society
LWSO 203
Marywyatt Sindlinger

What is law? Key concept: What is law and how can law be defined? • Law is internalized (deeply imbedded in us) • We obey the law because we have internalized the norms and agree with them • Set out the normative standards in society. Standards of behaviour are also set in other norms (social norms, family norms, morality) • Relevant to government - Through the law, citizens need to hold the government accountable for their actions (through laws) Basic definition: Law is a body of requirements and prescriptions that apply to human behaviour • A discipline that sets standards against which behaviour can be evaluated • Norms also set standards of behaviour, but law is different in the sense that it General features of law: (i) Prescribe certain behaviour (tells you what you can/can’t do) (ii) Predict behaviours (iii) Regular (iv) General (apply to society as a whole; ORDERS are specific) (v) Created and enforced by the state (an authority that has the right to punish you if you fail to comply) • Internalization aspect– it is right to follow the law because we believe is right • Externalization aspect– enforcement by an outside source if one fails to comply What is the difference between laws and other forms of rules and the difference between law and morality? Legal Theories Key concept: Different legal theories provide different explanations for the existence and authority of law as well as for the nature of law 1) Natural Law Theory Law is Morality • Law is morality Key concepts: • Moral universalism – As part of the natural world, Universal Moral Truths exist (principles of morality that have always applied to everyone and will continue to apply until the end of time) i. Humans did not make up these truths; they are simply a part of the world • Law and morality are connected such that moral validity is a necessary condition of legal validity (in accordance with universal moral principles) – its power and authority comes from moral principles Key people: Greeks, Christians and Morn all believed universal moral truths come from a variety of sources: • Greeks - Believed moral principles existed in the world independently of humans (justice/morality) and that humans could discover these universal truths through reason; they are a part of the natural world (floating around). • Christians (St. Thomas Aquinas + St. Augustine: Universal moral truths come from God, and are revealed to us through divine revalation or through rational thought. Morphed to Christian Divine Law Theory (God has written upon the universe, morality) • Defined NLT • Modern – (John Locke, Hobbes, American Constitution and Canadian Charter of Rights and Freedoms). As human beings we have inalienable human rights that give rise to UMT. The idea of certain/unalienable rights simply because we are people embedded right into the American Constitution and Canadian Charter of Rights and Freedoms. Problems: How do we determine Universal Moral Truths? • Are Universal Moral Truths actually possible? • How do we figure out what those moral truths are? • Even if we do think about them, we would all come to different answers • Universal Moral Truths are general/vague/broad and they mean different things to different people • Moral Relativism – what is right and wrong changes depending on the situation, time, place, culture, etc. 2) Legal Positivism • Law is Rules made by a Sovereign • Question of whether law exists is a separate question from whether its in accordance with moral principles • The legitimacy of law comes from its matter of creation • Whether it is in accordance with moral principles is a secondary question and it does not give law its validity • Laws are stated/posited • Legitimate if it was created by the right procedures, not if it’s in line with our morality Key concepts: • Law is justified and legitim
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