Philosophy of Law Political Philosophy, Social Philosophy

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Philosophy of LawPolitical Philosophy, Social
Philosophy Legal Theories

• An engaging introduction to the central concepts
  of political philosophy and legal theory
  including the nature of coercive institutions.
  The historical perspectives will allow us to look
  at issues concerning the nature of law, the duty
  to obey and civil disobedience. We will also
  compare and contrast natural law theories to
  legal positivism in an attempt to determine when
  if ever the State can legitimately interfere with
  our individual rights and fundamental freedoms.
  We will conclude by examining constitutional
  issues of individual rights and social justice
  which will include various approaches to
  punishment and coercion.
• Marc Legacy
• marleg_at_interchange.ubc.ca
• http//weblogs.elearning.ubc.ca/marc/
• Office UBC Pond F208

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Political PhilosophySocial Philosophy ? Ethics ?
Philosophy of Law

• Social Philosophy
• a normative approach to social actions and
  individual conduct within necessary limits
• ? social philosophy articulates the
  correct normative notion of society
• so society has a duty to support education,
  justice, health and some degree of welfare
• and individual rights must be respected, (eg.
  civil rights such as freedom of speech)
• then there must be some degree of freedom from
  coercion within necessary limits

• Political Philosophy
• an empirical study into the nature and
  justification of coercive institutions
• eg. negative liberty
  absence of coercion
• positive liberty self
  
• 
  determination
• if coercive institutions have legitimate (de
  jury) authority to constrain individuals
• and justifying coercive institutions requires
  an expectation of obedience
• then there must be a duty to obey a coercive
  institution

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Legal Theoriesreasonable ? limits ?
necessary

• Philosophy of Law
• The study of the conceptual and theoretical
  problems concerning legal theories, freedom and
  coercion
• the nature of law
• the structure and logical character of legal
  norms
• the analysis of legal principles
• the conditions for a legal system
• properties of legal systems
• legal rights interpretation
• legal obligation the authority of the law

• Natural Law Theory
• St Thomas Aquinas
• independent form positive laws, they are
  different from man made laws they are set forth
  by God through human reason to constrain mans
  human nature, they may be known merely through
  the light of reason
• Command Theory
• Thomas Hobbes
• a command or will of the sovereign imposes a
  standard of conduct and a duty to obey
• Legal Positivism
• John L Austin
• a particular way of structuring social order,
  does not appeal to moral arguments positive laws

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Hobbes v. Locke Coercion v. Freedom ? State of
Nature

• Thomas Hobbes
• In a S of N , life is solitary, brutish, nasty
  and short (war against all)
• and where the Sovereign is necessary to control
  innate human egoism, selfishness and
  aggressiveness
• then the Sovereign enacts laws to provide a
  common standard of conduct without which social
  life would not be possible
• so a command (law) imposes an absolute
  obligation or duty to act or to refrain from
  acting in a certain manner

• John Locke
• In a S of N you have perfect freedom to order
  your actions as you think they will fit within
  the bounds of the law of nature classical
  liberalism
• so in the S of N no one ought to harm another
  - their lives, health, liberty or possessions
• and we have inalienable natural rights
• then Night-watchman state
• ie. to promote liberty, to protect against
  force fraud, to correct social inadequacies

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J.S. Mill Constraint v. Freedom ? The Harm
Principle

• J.S. Mill
• if every one who receives the protection of
  society owes that society a return for the
  benefit duty to obey
• then living under the care and protection of
  society renders it indispensable that each
  individual member ought to be bound to observe a
  certain line of conduct towards others
• ? this conduct ultimately resides in not
  harming the interest of others

• The Harm Principle
• the only legitimate constraint on
  individual liberty are those that will prevent
  harm to others
• ie. Canada genuine apprehension of harm based
  on reasonable grounds (R. v. Lavallée)
• so the HP requires liberty of tastes and
  pursuits along with the liberty of conscious
  thought, opinions and sentiments
• ? your own good, either physical or moral is
  not a sufficient warrant for interference with
  your individual liberty

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Constraining Coercion Limiting FreedomThe
Canadian Charter of Rights and Freedoms

• 1. Guarantee of Rights and Freedoms
• The Canadian Charter of Rights and Freedoms
  guarantees the rights and freedoms set out in it
  subject to such reasonable limits prescribed by
  law as can be demonstrably justified in a free
  and democratic society.
• 2. Fundamental Freedoms
• Everybody had the following fundamental freedoms
• freedom of conscious and religion
• freedom of thought, belief, opinion and
  expression, including freedom of the press and
  other media communication
• freedom of peaceful assembly, and,
• freedom of association
• 15. Equality Rights
• (1) Every individual is equal before and under
  the law and has the right to the equal protection
  and equal benefit of the law without
  discrimination and, in particular, without
  discrimination based on race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.