LAWS1000B March 10th lecture (1).docx - March 10th lecture-...

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March 10thlecture- Liberal TheoriesThe Main ThesisThe general proposition of Devlin: jurisprudence has shifted from Naturalism, through Positivism and Realism to ArtifactualismA “denaturalization” process whereby law is no longer seen as transcendental, somehow“out there” and autonomous of human activityAn increasing recognition that law is a human construct (we create it); an artifact of human agency, contingent (not universal, created per circumstance), socially and historically located, and therefore capable of renovationEnfolding Liberal Theories of LawNatural law:oIn its pagan rationalistic forms (Greek and Roman)…oOr Christian divinic forms (St. Augustine and Aquinas),oOr its secularized, social contraction and rights-based forms (Hobbes and Locke),oImportant: Several key themes unite these otherwise very diverse juristsoKey themes:Natural law claims to be universal, immutable, eternal, objective, and beyond particularized political or historical contextNatural law thinking is the quest for absolute values, justice and truthNatural lawyers propose that the validity of law depends on its content, not just its form. Connection between moral and lawNatural law superior to human law, hence the justificatory power to determine whether laws are morally bindingoNatural Law: the exercise of “right reason”Naturalism provides moral and legal arguments for obedience because a law is valid only if it is in accordance with “right reason”Such law has an intrinsic value independent of the ends it achieves and it need not be justified according to its utilityNatural law is portrayed as the symbolic representation of justice and encourages us to pursue “the good”Law and justice can never be separated, because to do so will result in a legal formalism that can be conducive to, for example, Nazi lawsoCriticism of Natural lawNot as universal as it claims to be. Natural law theory has been accused ofbeing an assertion of faith/particular set of values rather than a demonstration of the truth of such valuesNatural law is inherently ambiguous: no variation has ever provided a clear set of principles which could effectively guide positive lawBecause of its refusal to take account of the reality of historical, empirical,scientific, anthropological, it is too general, abstract and vague to offer any really practicable legal solutionsNatural law is all things to all people, depending upon their own ideological bent
No rational way to know objectively what is right and what is wrong: natural law propositions are necessarily relative, personal and subjectiveNo amount of information about human nature provides proof that anything ought or ought not to be done as a consequenceAs Hume point out, you cannot derive “an ought” proposition from an “is propositionLegal Positivism:o

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