Lesson: 6

Topic: The development of earlier legal concepts: Positive Law.

Objectives:

During this class students will explore the origins of law. Students will examine and come to understand the legal theories of such natural-law thinkers as:

• Thomas Hobbes,
• John Locke,
• Jean-Jacques Rousseau,
• Jeremy Bentham, and
• John Austin

Students will come to understand how legal perspectives have shifted from belief in natural law, to belief in positive law.

At the conclusion of the class, students should have developed an understanding of the following concepts:

• positive law,
• social contract theory,
• authenticity versus social morality,
• utilitarianism, and
• legal positivism

Evaluation:

Task 1: In groups, students will research the following positive law thinkers in order to learn:

• A bit about their personal background.
• Their primary belief / theory.
• Why they are considered proponents of positive law as opposed to natural law.
• What they believed about the citizens obligation to obey government laws and/or right to rebel against unjust or abusive government laws.

Groups will then present their findings to the class. Within the conclusion of your presentation, consider the four points on the compass rose:

i. What do you still need to know? ii. What excites you about this theory? iii. What stance does your group take on this theory? iv. What worries might you have about this theory?

Marks: 30 (see marking rubric)

Time Limit: 15 minutes

Task 2: In a plenary session, members of the class will discuss and answer the following questions:

Once the groups have arrived at their respective conclusions, they will share their perspectives with the rest of the class.

ii.) Using the online Timetable of World Legal History, find a particular event or innovation which you find interesting. See if you can find evidence of the legal perspective that shaped the particular event or innovation which you are exploring. In other words, was it a natural law, or a positive law perspective that influenced the event? Is there a definitive point along the legal timetable where the world changed from a natural law perspective to a positive law perspective?

Expectations Addressed:

The "Heritage" strand of the CLN4U Ministry of Education Curriculum Guidelines outlines all of the following specific expectations. The specific expectations addressed by this class have been highlighted below.

• Sources of Law:
  • trace the development of law from its primary sources in religion, customs, and social and political philosophy;
  • distinguish between primary and secondary sources of law (e.g., constitutions, statutes, court decisions; legal writings);
  • explain the distinctions between common and civil law, substantive and procedural law, domestic and international law, and private and public law;
  • compare various historical methods and systems of adjudication (e.g., trial by ordeal versus trial by combat, adversarial versus inquisitorial systems).
• Theories and Concepts:
  • explain legal concepts such as democracy, justice, equity, equality, rule of law, sovereignty, and primacy of the right;
  • analyse the views of historical and contemporary philosophers of law (e.g., Socrates, Aristotle, John Locke, Jeremy Bentham, Thomas Hobbes, R.M. Dworkin, Henry Shue, H.L.A. Hart);
  • evaluate the strengths and weaknesses of different theories of law (e.g., natural and positive law, legal realism, feminist law);
  • explain the concept of justice as defined by philosophers and legal scholars;
  • analyse contemporary legal situations that raise the question of conflict between what may be legally correct but is generally viewed as unjust.
• Law and Society:
  • explain the interrelation of law, morality, and religion;
  • analyse how society uses law to express its values;
  • analyse contemporary events and issues that demonstrate a possible conflict between the law and societal values.
• Law Reform:
  • evaluate the influence of individual citizens who have fought to change the law (e.g., Dr. Henry Morgentaler, Dr. David Suzuki, Nelson Mandela, Sue Rodriguez, David Lepofsky, Rosalie Abella);
  • assess the role of collective action in changing the law in democracies (e.g., activities of lobby and pressure groups, voting at the polls, citizen petitions);
  • assess the power of the individual citizen to change or modify our laws, and determine under what circumstances individuals have a responsibility to seek legal reform (e.g., civil rights violations, police brutality, privacy issues).

Resources:

Text Reference:
• Chapter #3, pages 83 - 94 (required reading)

Handouts:
• The Nature of Law (PPT)
• Philosophical Foundations of Law

Relevant web sites:
• The Timetable of World Legal History
• The Law Museum