- If good is to be rewarded and evil is to be punished, how do we define good and evil?
- Should we be obeying the law no matter what the content?
- What if the law itself is evil?
- The philosophers we will be looking at are a few of the influential thinkers of their day.
- Ancient, historical, and contemporary philosophies
- Influenced contemporary legal thought in North America
Plato (428 – 348 BCE)
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- Famous works: Dialogues and The Republic
- In Dialogues, Plato tried to explain justice through a series of question-and-answer conversations with Socrates
- His (Greek) society did not meet his standards of justice
- A just person is a reflection of a just society
- An ideal (or just) society is one in which every person performed to the best of his or her abilities
- However since all people are unequal, the ideal ruler would be a “Philosopher King” – selected not by birth but on the basis of his or her achievements, education, and ability to rule.
- At first Plato believed that law was too general and abstract, and that it failed to recognize the differences between people.
- He eventually realized that it would be difficult to find a philosopher king and that without one, who could rule without being corrupted?
- Therefore, there was a need for Law.
Aristotle (384 – 322 BCE)
- Early Greek philosopher, left home at 17 to study under Plato.
- Different approach to the study of jurisprudence then Plato
- Believed that justice should aspire to equality
- Just = lawful, equal and fair
- Human hardship could be cured by equity – the fair sharing of resources among members of a community
- However, he did NOT believe that resources should be shared EQUALLY
- JUSTICE = equal and unequal sharing of wealth based on the worthiness of the recipient
- Opposed Oligarchies – where only those born into the upper class could rule
- Was in favour of a “MERITOCRACY” – a society in which individuals are rewarded based on their own merit and performance of civic duties
- Also believed that justice should be done with equity, i.e. departing from the law on a particular case.
Thomas Aquinas (1225 – 1274)
- Wealthy, well-educated, but became a Dominican Friar (preacher) for a time
- Expert philosopher, especially on Aristotle.
- “Law is chiefly ordained to the common good” and the intention of the law-maker should be to “lead men to virtue”
- He did not assume that law makes people good, but rather “that man obeys a law due to him being good”
- Tyrannical law is not law, it is a perversion of law
- Good is to be done and pursued, avoid evil.
John Locke (1632 – 1704)
- English philosopher, studied at Oxford University.
- Two Treaties of Civil Government influenced politics in England at the time
- He did not believe that collective rights were more important than individual rights
- Positive law of a country is embedded in a constitution
- But, the constitution itself had to be based on natural law (natural law emphasizes individual rights)
- We have the right to self-preservation, but the law should restrain people from hurting one another
- Believed that the state, and its ability to make laws, was subject to limits –
- Fundamental rights of life, liberty, and property
- Natural law
- Believed that the sole purpose of government is to protect individuals against the arbitrary acts of others who would interfere with their freedom.
- French and American Revolutions and the foundation of Canadian constitutional law.
John Rawls (1921 – )
- an American philosopher and a leading figure in moral and political philosophy
- The Theory of Justice
- The Veil of Ignorance:
- The only way a legal system can achieve fairness and ensure that decisions are rational and unbiased is if no one in the society knows his status or the extent of their wealth.
- Legal systems should strive towards this ideal
- i.e., legal aid
Noam Chomsky (1948 – )
- Famous and controversial present day philosopher.
- Linguist and political activist
- Believes that Law primarily serves those in power
- There is cooperation between the elite class of citizens and the law makers to make laws that maintain the status quo and the wealth and power of the elite.
- Media plays a big part in this by withholding serious information,
- Masses are happy and ill-informed.