Legal Theories: A Historical Introduction to Philosophy of Law

Paperback | March 1, 2013

byPaul Groarke

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Combining provocative readings with insightful original discussions, this text introduces students to essential concepts and issues within the philosophy of law. Covering the major stages and philosophies of the common law tradition, while also exploring more contemporary developments injurisprudence, Legal Theories offers a theoretical and practical treatment of philosophical principles of law.

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Combining provocative readings with insightful original discussions, this text introduces students to essential concepts and issues within the philosophy of law. Covering the major stages and philosophies of the common law tradition, while also exploring more contemporary developments injurisprudence, Legal Theories offers a theoretica...

Paul Groarke is a professor in the Department of Criminology and Criminal Justice at St Thomas University. He received a law degree from the University of Calgary, a Master's degree in English literature from Dalhousie, and a PhD in philosophy from the University of Waterloo. He has published a scholarly monograph called Dividing the...

other books by Paul Groarke

Format:PaperbackDimensions:560 pages, 9 × 7 × 0.69 inPublished:March 1, 2013Publisher:Oxford University PressLanguage:English

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ISBN - 10:0195431871

ISBN - 13:9780195431872

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Table of Contents

Part I: Historical Theories of Law1. Tribes and the Origins of LawReadingsFrederick Pollock: - From A First Book of Jurisprudence for Students of the Common LawJarich Oosten and Frederic Laugrand: - From "Qaujimajatuqangit and Social Problems in Modern Inuit Society"Edward S. Curtis: - From "The Apache"Frederic Seebohm: - From Tribal Custom in Anglo-Saxon LawK.N. Llewellyn and E. Adamson Hoebel: - From The Cheyenne WayE. Adamson Hoebel: - From The Law of Primitive ManDiscussionThe Concept of Law Has Changed across History- The Tribal Law Is Law in Pollock's Abstract Sense- The Tribal Law Is Inherently BindingThe Tribal Law Is Cosmological- The Sanctions for the Breach of the Tribal Law Extend into the Natural World- Religious and Legal Institutions Are Associated with Each Other in the Tribal LawThe Tribal Law Maintains Social Cohesion- The Tribal Law Governs the Relations between Families- The Individual's Rights in Tribal Law Come From Membership in the FamilyThe Tribal Law Was Designed to Prevent Feuds- Feuds Were Difficult to Control because They Were Based on Legal ObligationsThe Ultimate Tribal Sanction Was Banishment- Those Who Lived Outside the Tribe Were Not Considered People- The Tribal Law Gave Rise to the Practice of OutlawryThe Tribal Law Has Six AttributesAnthropologists Have Debated Whether Tribal Law Is "Law"- Anthropologists Who Subscribe to a Political Conception of Law Have Argued that Tribal Law Is Not Law- Other Anthropologists Have Argued that the Political Conception of Law Is Too Narrow- The Tribal Law Developed Its Own Forms of Legal RedressThe Customary Law Was Based on the Tribal Law- The Common Law Was a Product of the Customary Law2. The Christian TraditionThomas AquinasReadingThomas Aquinas: - From the Summa TheologicaDiscussionThe Idea of the Natural Law became Prominent under the Stoics- It Then Made Its Way into Christian Theology- The General Influence of Aquinas' Work Is a Product of Its Central Place in the Church's TeachingAquinas' Influence on the Legal Tradition Is General Rather Than Specific- Aquinas' Influence on the Common Law Is Tied to the Historical Origins of That LawAquinas' Definition of Law Has Become the Classical Definition of Law- Law Is an Ordinance of Reason- Law Is for the Common Good- Law Is Made By Him Who Has Care of the Community- Law Must Be Promulgated, or Proclaimed- Aquinas' Definition Has a Normative CharacterAquinas Distinguishes Four Kinds of Law- The Eternal Law- The Natural Law- The Natural Law Derives From Our Inclination for Self-Preservation- The Emphasis in the Natural Law Is on Duty- Can the Natural Law Change?- The Positive Law- Why Do We Need Positive Laws?- We Have an Obligation to Obey a Positive Law that in Some Degree Departs From the Natural Law- A Positive Law that Significantly Deviates From Reason Has the Nature of "Violence"- An Unjust Positive Law Is "a Perversion of Law"- The Divine LawThe Application of the Theory of the Natural Law Is Problematic- There Is Wide Disagreement on Moral Issues- There Is Still Room for a Procedural Theory of the Natural Law- The Constitutional Courts Have Taken Over the Legal Role of the Medieval Church- People within the Same Society Tend to Agree On the Contents of the Natural Law3. The Shift to Natural Rights and the Political ContractHugo Grotius and Samuel von PufendorfReadingsHugo Grotius: - From De Jure Praedae Commentarius (Commentary on the Law of Prize and Booty)Samuel von Pufendort: - From Elementorum Jurisprudentiae Universalis Libri Duo (The Elements of Universal Jurisprudence)DiscussionThe Theory of Natural Rights Has Shaped the International OrderGrotius and Pufendorf Give the Individual the Central Place in Their Theories of Law- The Theory of Natural Rights Holds that the Individual Has Rights Rather Than DutiesThe Theory of Natural Rights Was Based on the Natural Law- Grotius and Pufendorf Adopted a More Technical Approach to Theory- Pufendorf Takes a More Philosophical Approach than Grotius- Grotius and Pufendorf Have Different Conceptions of Rights and Law- The Natural Law in the Theory of Natural Rights Has Its Source in Reason Rather Than GodThe Political Contract Is Based on the Sovereignty of the Individual- The State and the Positive Law Are Based on the Consent of the PeopleGrotius Has Been Acclaimed as the Father of the International Law- Grotius' Theory of the Open Seas Facilitated Capitalism- The International Law Is Convention Rather Than Law- The Reliance on Convention Has Made It Difficult to Enforce the International Law- War Has Been Used as a Mechanism to Resolve Political Disputes in the International RealmPufendorf Bases the Law of Nations on Moral Obligations Rather Than Agreement4. Early Scientism: Law Is the Science of Judges and Places Limits on the KingEdward Coke, William Blackstone, and John MarshallReadingsSir Edward Coke: - From Dr. Bonham's Case (1610)- From Case 1070: The City of London against Wood (1701), 88 Eng. Rep.William Blackstone: - From Commentaries on the Laws of England- From William Marbury v. James Madison (1803), 5 U.S. 137DiscussionThe Sources of the Common Law Can Be Found in the Customary Law, which Was Rooted in the Tribal Law- The Common Law Has Its Origins in the Development of a Single System of Law- The Magna Carta Asserted the Authority of the Earlier Law over Political Government- The Original Common Law Was Found in the Written Judgements of the King's JudgesCoke Sees Law as the Science of Judges- Early Scientism Sees the Common Law as a Kind of Machine- The Legal Order Is Ascendant and Places Limits on the King- Coke's Ruling in Dr. Bonham's Case Heralded the Beginning of the Constitutional Law- Day v. Savadge Treats the Natural Law as a Kind of Constitutional Law- London v. Wood Suggests that the Common Law Puts Limits on ParliamentThe Concept of Law in Blackstone's Commentaries and the Later Common Law Is a Political Conception, Based on the Political Contract- The Later Common Law Is Based on the Rights of the Individual- The Later Common Law Holds that the Power of Parliament Is AbsoluteWritten Constitutions Were Introduced to Place Limits on the Exercise of Political Authority- Marbury v. Madison Institutes "Judicial Review"- In Hurtado v. California, the United States Supreme Court Rejected Coke's Scientism5. Law Is a Product of Utility or Pure ReasonJeremy Bentham and Immanuel KantReadingsJeremy Bentham: - From Of Laws in GeneralImmanuel Kant: - From The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of RightDiscussionBentham Believes in the Science of Legislation- Bentham's Philosophy of Law Is Based On the Supremacy of Political Authority- Bentham Believes that Legislation Should Serve Utility- The "Greatest Happiness" Is Based on the Happiness of the Individual- The Idea of a Utilitarian Calculus Was Influential in the Development of an Economic View of Law and Sentencing- Bentham Attacks the Role of the Judiciary in Blackstone's Commentaries- Bentham Describes "Natural Justice or Equity or Right Reason" as "the Phantom"- Bentham's Rejection of the Natural Law Is Evident in His Work as a Social Reformer- Bentham's Rhetorical Attack on the Common Law Does Not Acknowledge the Purpose of Stare Decisis- One of the Legacies of Utilitarianism Was a Movement to Codify the Common LawKant's Theory of Law Is Based on Reason and the Concept of Duty- Kant's General Philosophical Position Is that Our Minds Determine the Form of Our Experience- Kant's Concept of Law Supplies the Framework of His Ethical Theory and the Categorical Imperative- Kant's Legal Theory Holds that Law Is a Product of Pure Reason- Kant's Concept of Law Is Based on the Assertion that We Are Free- Kant's Philosophy of Law Borrows Elements from the Grotian Natural Law- Kant's Theory of Positive Law Is Based on the Idea that We Are Entitled to Enjoy Our Freedom Equally- Kant Gives the Political Contract a Kind of Constitutional Status- Kant's Theory of Law Lends Credence to the Idea of Codification- Kant Proposes a Congress of Nations and Believes that Nations Have a Duty to Leave the State of Nature6. Legal Positivism: The Political Order Takes PrecedenceJohn Austin, Thomas Hill Green, and Albert Venn DiceyReadingsJohn Austin: - From The Province of Jurisprudence DeterminedThomas Hill Green: - From Lectures on the Principles of Political ObligationAlbert Venn Dicey: - From Introduction to the Study of the Law of the ConstitutionDiscussionAustin Is the Seminal Figure in English Positivism- Austin's Definition of Law Is Political- Austin Distinguishes between Morality, Law, and Convention- The Ruler's Exercise of the Sovereign Power Is Governed by Convention- The Constitutional Law Accordingly Includes Conventions- The International Law Is Convention- Law Is a Command from a Political Superior- Austin's Legal Theory Has Difficulty Explaining the Customary Law- Austin's Legal Theory Has Difficulty Explaining the Writs against the Crown- Laws Are General Commands- Austin Fails to Acknowledge that General Laws May Be Used to Target Specific Groups- It Is Compulsion that Provides the Reason to Obey the Law- Section 15 of the Criminal CodeGreen Provides a Communitarian Account in Response to Austin's Legal Positivism- There Is a Methodological Side to the Dispute between Green and Austin- Green's Communitarianism Raises Three Pivotal Questions- Who Is the Sovereign?- Who Rules the Ruler?- What Rights Does the Individual Have against the Ruler?- Green's Concept of the Common May Also Serve as a Legal StandardDicey's Doctrine of Absolute Sovereignty Can Be Seen as the Legal Arm of Positivism7. Modern Scientism: Formalism, Legal Skepticism, and PragmatismChristopher Columbus Langdell, Oliver Wendell Holmes, and Roscoe PoundReadingsChristopher Columbus Langdell: - From A Selection of Cases on the Law of ContractsOliver Wendell Holmes: - From a "Book Notice" on Langdell's A Selection of Cases on the Law of ContractsRoscoe Pound: - From "Mechanical Jurisprudence"DiscussionLangdell Believed that the Study of Law Should Be Based on the Scientific Method- Formalism Is Based on Inductive as well as Deductive Principles- The First Stage of Formalist Analysis Is Inductive- The Second and Third Stages Are Deductive- Formalism Sees the Law as a Set of Logical Rules- The Methodology of Formalism Can Be Applied to Statutory Law- The Use of the Formalist Analysis in Statutory Interpretation Raises Questions with REgard to Coherence and Politcal Authority- Formalism Has Affinities with Legal Positivism- The Formalists Shared the Positivists' Interest in Codification- The Methodological Premises of Formalism Nevertheless Recall the Natural Law- Formalism Prevents Us from Examining the Moral Views on which the Law Is Based- Formalism Draws Attention to the Role of the Judiciary- Formalism Fails to Recognize the Vagaries in the Determination of Facts- Formalism Has Difficulty Explaining the Conflicting Rulings in the CaselawHolmes Argues that Formalism Fails to Capture the Role of Experience in the Common Law- Holmes Rejects Langdell's Rationalism- Holmes Rejects Formalism Because It Fails to Explain the Substantive Origins of the Law- Formalism Does Not Permit Substantive Changes in the Law- Holmes' Empiricism Offers a Solution to the Problem of Novel Cases- Holmes Believed that Economics Provides the Necessary Means for Testing the Results of Judicial DecisionsPound's Legal Pragmatism Rejects the Idea of a Jurisprudence Based on Conceptions- The Pragmatists Believed that the Law Should Progress Like the Experimental Sciences- The Pragmatists Were Fallibilists and Believed that Laws Must Be Tested- The Pragmatists Believed that the Meaning and the Validity of the Law Are Found in Its Results- Sociological Jurisprudence Focusses on the Community as a Whole8. Constitutionalism: Legal Skepticism and the Doctrine of the Living TreeAlbert Venn Dicey, Oliver Wendell Holmes, and John SankeyReadingsAlbert Venn Dicey: - From Introduction to the Study of the Law of the ConstitutionOliver Wendell Holmes: - From "The Path of the Law"- From Edwards v. A.G. of Canada, [1930] A.C. 124 (P.C.)DiscussionDicey Sets Out a Theory of Federalism which Restores the Ascendancy of the Legal Order Holmes Stakes Out an American Position- Holmes Was a Skeptic but Recognized that the Law Has a Moral Foundation- Holmes' Positivism Is Accordingly Mitigated by His Constitutionalism- Holmes Takes the General Position that the Law Should Be Studied from an Internal and an External Perspective- The External Perspective Gives Rise to Two Lines of Inquiry- The Descriptive Inquiry Leads Into Legal Realism- The Normative Inquiry Leads Into Legal Skepticism- Legal Skepticism Was a Product of the Contest between the Courts and the Legislature- In Lochner (1905) and Adkins (1923), Holmes Argued that Judges Should Suspend Their Political Views- Legal Skepticism Permits Changes in the Substantive Grounding of the Law- Judges Have an Obligation to Bring the Law into Conformity with the Current Consensus in Society- Judges Have an Obligation to Set Out the Moral and Social Purpose of the LawSankey Deals With the Problem of Substantive Change through a Historic Compromise- The Privy Council Held that the BNA Act Should Be Given a Large and Liberal Interpretation- The Constitution Must Nevertheless Contain Fixed Limits- The Canada Thesis Holds that the Constitution Is a Living Tree- The Canadian Constitution Has Allowed Legislatures to Enact Progressive Social Legislation9. Legal Realism Adopts an External PerspectiveKarl Llewellyn and Jerome FrankReadingsKarl Llewellyn: - From "A Realistic Jurisprudence - the Next Step"Jerome Frank: - From Law and the Modern MindDiscussionLegal Realism Is an External Theory of Law, which Provides a Descriptive Account of the Legal Process- Justice Cardozo's Theory of the Judicial Role Provides Some of the Theoretical Background to Legal Realism- Cardozo's Theory Brings Political Considerations into the Process of Decision-Making- Realism Was Also a Response to the Use of Formalism in the Legal Curriculum- Legal Realism Tries to Capture the Reality of the Judicial Decision-Making Process- Law Consists of the Decisions of the Court in Individual Cases- The Realist Conception of Law Runs against the Positivist Claim That Judges Do Not Make Law- The Realists Rejected the Idea that the Law Is Composed of Legislation or Common Law Rules- Frank's Realism Suggests that the Law Cannot Be CodifiedLlewellyn is a Representative of the Sociological School of Realism- Pound Rejected Llewellyn's Realism because It Does Not Answer the Normative Questions in Legal Theory- Llewellyn's Theory of Law Is Based on Social Groups- Llewellyn's Realism Suggests that Politics Plays an Important Role in the Judicial ProcessFrank Is a Representative of the Psychological School of Realism- Frank's Theory Recognizes the Problems that Arise in Deciding the Facts of a Case- The Findings of Fact May Also Determine the Legal Issues in the Case- Frank Sets Out a Psychological Model of Judicial Decision-Making- Frank's Theory Raises the Problem of Incommensurables- Frank Sees the Judge as an Arbitrator- The Historical Role of a Judge and an Arbitrator Are Nevertheless Different10. Later Positivism: The Law Derives Its Authority from the StateHans Kelsen and H.L.A HartReadingsHans Kelsen: - From Pure Theory of LawH.L.A. Hart: - From The Concept of LawH.L.A. Hart: - From "Positivism and the Separation of Law and Morals"DiscussionKelsen Sets Out a "Pure" Theory of Law- Kelsen Is a Kantian- Law Is a Normative Science and Is Based on a Hierarchy of "Oughts"- The Central Aim of Kelsen's Theory Is to Identify Valid Legal Norms- Every Legal Norm Can Be Traced to the Base Norm, the Grundnorm- Kelsen's Positivist Conception of Law Is Political and Statist- Kelsen Gives Us a Grand Unified Theory, but the Abstraction of His Theory Makes It Difficult to ApplyHart Tries to Rescue Legal Positivism from the Criticisms- Hart Acknowledges that the Legal Realists Have Drawn Our Attention to the Open Texture of the Law- Hart Argues that the Law Is Open-Textured Only in the Penumbra- Hart Remains a Firm Positivist- Hart Nevertheless Believes that the Account of Obligation in Austin's Positivism Is Inadequate- The Poisoner and the Gunman Illustrate Different Normative Standards- We Cannot Say that a Person Is "Obligated" to Do Something Unless Three Conditions Have Been Met- The Problem with Austin's Positivism Is that It Fails to Take the Internal Point of View into AccountHart's Theory of Law Is Based on the Political Contract- Hart Defines a Legal System as a Union of Primary and Secondary Rules- Secondary Rules Determine the Validity and Scope of Primary Rules- It Is the Rule of Recognition that Keeps the System in Place- The Reference Cases in Canada Deal With the Legal Side of These Issues- There Are Three Fundamental Criticisms of Hart's Theory- Hart Does Not Establish the Existence of Discrete Legal Obligations- Positivism Neglects the Constitutional Law- Hart Fails to Recognize the Historical Origins of the Law11. The Hart-Fuller Debate and the Procedural Account of the Natural LawH.L.A Hart and Lon L. FullerReadingsLon L. Fuller: - From The Morality of LawH.L.A. Hart: - From "Positivism and the Separation of Law and Morals"Lon L. Fuller: - From "Positivism and Fidelity to Law - A Reply to Professor Hart"DiscussionFuller Sets Out a Procedural Theory of the Natural Law- Fuller's Work Poses the Question: When Are We Obliged to Obey the Law?- Fuller Argues that Legal Positivism Has a Moral Element- The Grundnorm Is a Substantive Principle- Fuller's Second Argument Is that the Legal System Has an "Internal Morality"- The Parable of Rex Reveals Eight Ways in which a Legal System May Fail- A Viable Legal System Must Satisfy Eight Requirements- Fuller's Requirements Are Descriptive- Fuller Describes His Theory as "Procedural"- The Procedural Argument Places Restrictions on the Judiciary- It Nevertheless Seems More Accurate to Describe Fuller's Theory as a Coherence Theory- The Major Advantage of Fuller's Theory Is that It Places Rational Limits on the Exercise of Power- Fuller's Theory Fails to Address the Substance of Immoral Laws- Fuller Also Neglects the Fact that a Successful Legal System May Produce Immoral LawsThe Grudge Informer Case Demonstrates That Legal Positivism Has Difficulty Dealing with Immoral Positive Laws- Hart Takes the Position that the Law Prohibiting Criticism of Hitler Was a Valid Law- Fuller Takes the Position that the German Legal System Had Stopped Functioning in Any Meaningful Sense- Fuller's Theory Does Not Address the Underlying Substantive Issues- The Legal Analysis of the Grudge Informer Case Raises Different Issues- Pappe and Dyzenhaus Have Shown that the Post-War German Courts Believed the Informer Laws Were Valid- A Common Law Analysis of the Case Merely Requires Proof of Mens Rea and Actus Reus- Hart and Fuller Also Fail to Separate the Questions of Political and Legal Legitimacy- The Deeper Issue Is that the Exercise of Politcal Power Needs to be Subject to Legal Limits12. Contemporary Liberal Theory: Dworkin's Critique of Hart's PositivismReadingsRonald Dworkin: - From "The Model of Rules"H.L.A. Hart: - From The Concept of LawDiscussionDworkin Begins His Critique of Hart by Setting Out Three Positivist Claims- Dworkin Then Argues that Positivism Is Based on Two MisconceptionsDworkin's Model of Law Brings Moral Values into the Law- Moral Values Enter the Law through Principles and Policies- Rules Are "All-or-Nothing"; Principles "Argue in One Direction"- A System Based on Rules Is More Predictable but Less Flexible- Principles Are Particularly Prominent in the Constitutional Law- The Major Issue for Dworkin Is Whether Legal Principles Are Discretionary- The Term "Discretion" Has a Weaker Sense and a Stronger Sense- Principles Are Binding Rather Than Discretionary- Indeed, Rules Are Changed When Principles Require It- Furthermore, Principles Exist Independently of the Rule of Recognition- Dworkin's Real Target Is Legal Realism- Hart and Dworkin Neglect the Process of Finding FactsHart Argues that Dworkin Has Misrepresented His Theory, which Is Descriptive Rather Than Normative- Hart and Dworkin Have Different Views of the Judicial RoleDworkin's Concept of Principles Is Part of a Larger Attempt to Provide a Working Model of the Constitutional Law13. The New Realism: Critical Legal Studies, Feminism, and PostmodernismReadingsMark Kelman: - From A Guide to Critical Legal StudiesMark Tushnet: - From "Critical Legal Studies: A Political History"Mari J. Matsuda: - From "Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice"Margaret L. Anderson: - From "New Directions in Feminist Theory"DiscussionThe Critical Movement Gave Rise to a Number of Alternative Approaches to Theory- The Alternative Literature Critiques the Use of Law to Maintain Power- Critical Legal Studies Has Its Philosophical Roots in Skepticism- Kelman Argues that There Are Antinomies in Liberal Theory- Tushnet Argues that the Law Is Politics "All the Way Down"- Tushnet's Conception of Law Is Intensely Adversarial- Critical Legal Studies Holds That the Legal System is Indeterminate- The Critical Literature Has Fostered an Interest in Phenomenology of Law- The Critical Literature Has Also Fostered an Interest in RhetoricFeminist Legal Theory Came Out of Legal Realism but Has a Critical Edge- The First Wave of Feminism Manifested Itself in Activism- The Second Wave of Feminism Has Been More Theoretical- Matsuda Argues that Individuals Always Make Decisions in a Social and Political Context- MacKinnon Sets Out a Substantive Theory of Law- The Third Wave Has a Postmodern Side- Feminist Theory Has Focussed on Oppression and TransformationThe Major Criticism of the Critical Movement Is that It Has Reduced the Legal Analysis- The Critical Literature Does Not Critique Itself- The Alternative Literature Is AhistoricalPart Two: Jurisprudence, Applied Philosophy, and Contemporary Developments14. The Private Law: The Civil Law Is Based on the Rights of the PersonReadingsPaul Groarke: - From "The Legal Concept of the Person: A Relational Account"Elaine Pagels: - From "Human Rights: Legitimizing a Recent Concept"Jeremy Waldron: - From "What Is Private Property?"DiscussionThe Legal Person Functions like a Placeholder in a Game- The Legal Person Collects and Holds the Perquisites that the Game Awards- The Legal Person Has Positive and Negative Attributes, which Give Rise to Rights and Duties- An Individual without a Legal Person Has No Legal Rights- An Individual Must Be a Member of Society to Have a Legal Person- An Individual Must Also Have a Formal Role in Society- An Individual Must Have the Capacity to Make Binding Decisions- The Judicial View as to Who Has a Legal Person is Constantly EvolvingThe Civil Law Gives the Legal Person the Freedom to Enter into Legal Relationships- The Civil Law Does So by Recognizing that Certain Rights and Duties Are Legally Binding- The Issue in a Trial Is Whether the Plaintiff Has a Right Against the DefendantHistorically, Legal Rights are Perquisites Awarded by Society- Legal Rights Are Distinguishable from Natural Rights- The Individual Rights Recognized by the Law Derive From SocietyWaldron Sees Private Property as a Bundle of Rights- Legal Rights to Property Are RelativeDe Laveleye Traces the Origins of Real Property to Factors like Occupancy, Labour, the Social Contract, Law and Government- The Modern Law of Private Property Can Be Traced to the Increasing Prominence of the Individual- Historically, Land Was Held in Common, Then Enclosed15. Private Law: Liability Is Based on Legal Duties and the Principle of CauseReadingsOliver Wendell Holmes: - From The Common Law- From Jordan House Ltd. v. Menow, [1974] S.C.R. 239Frederick Pollock: - From Principles of Contract at Law and in EquityDiscussionThe Principle of Liability in the Early Law Was Simple Cause- A Few Authors Have Challenged This Position, but Unsuccessfully- The Liability of Objects in the Early Law Was Based on Simple Cause- The Notion of Vinculum Juris and the Practice of Deodands Illustrate the Principle of Physical Liability- There Are Remnants of the Principle of Physical Liability in the Law of Dangerous Animals and Product Law- The Civil Law Was Based on the Transfer of Liability from Things to Persons- The Transfer of Liability to Persons Brought Fault into the Analysis- The Principle of Simple Cause Has Nevertheless Been Preserved in Cases of Strict LiabilityCivil Liability Is Based on Legal Duties- The Principle Sources of Duties Are Found in Contracts, Torts, and Equity- Liability in Contracts Is Based on Promises- An Impossible Contract Is Not Binding- Liaibility in Torts Is Based on Fault- There Are Competing Instincts in Negligence- Cook v. Lewis: The Standard of Liability in Torts Takes the Mechanisms of the Legal Process into Account- Marconato and Marconato v. Franklin: The Thin Skull Rule Reflects the Concern with Compensation- The Doctrine of Contributory Negligence Focusses on Fault- Norberg v. Wynrib: Equity Is Based on Fiduciary DutiesThe Underlying Factor in Deciding Civil Liability Is Still Cause- Collingwood Distinguishes between Cause and Existence of Necessary Conditions- The Law Restricts Civil Liability to Proximate Cause- The Assessment of Probabilities in Damages Has Diluted the Principle of Cause- The Doctrines of Inevitable Accident and Act of God Are Based on Cause16. Public Law: A Crime Is a Public WrongReadingsW.J.V. Windeyer: - From Lectures on Legal HistoryFrances Bowes Sayre: - From "Mens Rea"Sir Patrick Devlin: - From "The Enforcement of Morals"H.L.A. Hart: - From Law, Liberty, and MoralityDiscussionThe Criminal Law Has Its Roots in the King's Peace- Historically Crimes Were Felonies- The Criminal Law Came Out of the Pleas of the Crown- The Pleas of the Crown Were One of the Primary Sources of Revenue for the Emerging State- Trial by Ordeal Was Replaced by Trial by Judge and Jury- The Authority of the New Process Was DisputedA Crime Is a Public Wrong- The Commission of a Crime Requires a Voluntary Act- It Follows that an Accused Who Establishes Automatism Cannot Be Convicted- A Voluntary Omission Is an Act for the Purposes of the Criminal Law- The Question in a Criminal Trial Is Whether the Accused is Culpable- The Crown Must Prove the Physical Circumstances of the Offence, which Include the Actus Reus- The Actus Reus of an Offence May Include Omissions- The Crown Must Also Prove Mens Rea, which Contains the Mental Elements of the Offence- It Is the Accused's Intention to Commit the Actus Reus that Matters- The Ambit of Mens Rea Is Extended by Doctrines Like Transferred Intent- The More Serious Criminal Offences Require Proof of a General and a Specific Intention- Voluntary Intoxication Is Not a Defence- The Common Law Presumes that the Accused Has the Capacity To Form the Necessary Mens Rea- Absolute and Strict Liability Offences Do Not Require Proof of Mens Rea- An Absolute and Strict Liability Offence Does Not Require Proof of Mens Rea- Legal Defences Are Usually Described as Justifications or ExcusesHart and Devlin Debate the Role of Morality in the Criminal Law- Devlin Takes the Position that the Criminal Law Maintains Moral Norms- Devlin Argues that the Assumption that Individuals Are Obliged to Respect the Moral Consensus in Society- Hart's Position Finds Expression in R. v. Brown- Can an Individual Consent to Bodily Harm?17. Public Law: Punishment and SentencingReadings- Leviticus 24:13-22- Deuteronomy 19:16-21- Qur'an 5:45Cesare Beccaria: - From An Essay on Crimes and Punishments- Digest of R. v. J.J., 2004 N.L.C.A. 81DiscussionPunishment Was Not the Primary Motive Behind the Tribal Law- The Tribal Law Found Expression in the Lex Talionis- The Lex Talionis Had Its Roots in Cosmology Rather Than Punishment- The Purpose of the Early Legal Remedies Was ExpiationThe Role of Punishment in the Criminal Law Can Be Attributed to the Emergence of the State- Hobbes Awards the Right of Punishment to the King- Criminologists Have Argued that the Purpose of Punishment Was Social Control- The Historical Function of the Criminal Law Was to Prescribe Punishments- It Is the Prospect of Punishment that Explains the Procedural Protections in the Criminal Law- The Early Punishments in the Criminal Law Had Their Origins in Outlawry- The King's Judges Quickly Developed a Tariff of PunishmentsSentencing in the Modern Law Has at Least Four Major Aims- The First Aim Is Punishment, which Is Now Called "Retribution"- The Denunciatory Aspects of Sentencing Also Serve the Purposes of Punishment- The Second and Major Aim of Sentencing Is Deterrence- The First Systematic Treatment of Deterrence Can Be Found in Beccaria's Crimes and Punishments- The Prominence of Deterrence in the Common Law Is Attributable to Bentham and the Utilitarians- The Courts Distinguish between General and Specific Deterrence- Bentham Had a Technical Interest in Sentencing- The Third Aim Is the Reform and Rehabilitation of Offenders- The Fourth Aim Is to Restore Offenders to Their Place in the Community- Restorative Justice Includes the Practice of Victim-Offender Reconciliation- Sentencing Circles Have Given Aboriginal Communities a Say in SentencingThe Most Prominent Ingredient in Sentencing Is Judicial Discretion- The Discretionary Element in the Legal Process Allows the Standards in Sentencing to Evolve- It Was the Canadian Judiciary Who Brought the Practice of Whipping to an End- The American Judiciary Overruled the Death Penalty- Judges Have Also Increased the Sentences for Environmental Offences18. Public Law: The Constitutional Law Places Legal Limits on the Institution of Political GovernmentReadingsMenno Boldt and J. Anthony Long: - From "Tribal Philosophies and the Canadian Charter of Rights and Freedoms"- From the Canadian Charter of Rights and Freedoms- Digest of R. v. Stillman, [1997] S.C.J. 34- Digest of R. v. Zundel, [1992] S.C.J. 75DiscussionThe Constitutional Law Has Its Roots in the Tribal Law and the Customary Law- The Magna Carta Asserted the Supremacy of the Law over the King- The Constitutional Law Was a Reaction to the Idea of Parliamentary Supremacy- The Transfer of Ascendancy to Parliament Was Justified on a Democratic BasisConstitutionalism Traces the Powers of Government to a Written Constitution- One of the Purposes of a Written Constitution Is to Legally Distribute the Sovereign Power- The Secession Reference Holds That the Canadian Constitution Recognizes the Supremacy of the Rule of Law- A Written Constitution Also Places Limits on the Legislative Power- The Contemporary Understanding of These Rights Is Found in the Liberal Tradition- Mill Holds that the State Can Intervene Only in the Instance of Harm- Mill's Argument Is Based on a Distinction between the Private Sphere and the Public Sphere- The Liberal Literature also Distinguishes between Positive and Negative Rights- The Canadian Charter of Rights and Freedoms Introduces a Normative Standard into the Constitutional Law- The Rights of the Individual in the Constitutional Law Are Based on the Dignity of the Person- Boldt and Long Argue that the Constitutional Law Should Also Recognize the Dignity of the Group- The Charter of Rights Nevertheless Focusses on Individual Rights- Criminal Cases like Zundel and Stillman Illustrate the Adversarial Nature of the Common Law Constitutional Tradition- The Civil System of Law Is Inquisitorial and Does Not Give Constitutional Rights The Same Legal Status- The Differences between the Two Systems Are Evident in Their Views of the Right to Silence19. Globalization: The International Law and the Doctrine of Sovereignty Are ChangingReadingsPaul Groarke: - "A Primer on the Application of the International Law in Canada"Neil MacCormick: - From Questioning Sovereignty: Law, State, and Nation in the European CommonwealthDiscussionThe State System Is Based on the Removal of the Moral Authority Provided by the Church- Grotius' Theory Promoted the Idea that States Are Sovereign- The Peace of Westphalia Gave Rise to the Principle of Non-intervention- The International Law Is Based on Agreement- The Historical International Law Is Made Up of the Law of Treaties and the Customary International Law- The Historical International Law Is a Voluntary System of LawThe Doctrine that States are Sovereign Is Changing- The Jus Cogens Is Compulsory- A State Cannot Derogate from Human Rights- There Are Also Obligations, Erga Omnes- There Is Now a Transnational and an International Criminal Law- The Fundamental Idea Behind the Domestic Criminal Law Is that Society Has Been Wronged- The Domestic Criminal Law Now Contains Extra-territorial Offences- The Fundamental Idea Behind the International Criminal Law Is that Humanity Has Been Wronged- The Inconsistency of the International Law Is Illustrated by the Principle of Humanitarian Intervention- The Origins of a Compulsory Law of States Can Be Found in Political or Legal Sources- MacCormick Argues that Political Sovereignty Can Be Legally Regulated by Dividing Sovereignty between Governments- This Division of Sovereignty Is Illustrated by the European Union- The Recognition of a Compulsory Law of States Raises Many Practical Issues- The Traditional Doctrine of Sovereignty Has Been Supplanted by a Doctrine of Legitimate Sovereignty- The Supreme Court of Canada Has Held that the Decision to Secede is Subject to Legal ConstraintsThe Challenges to the Authority of the State Have Manifested Themselves in the Problem of Terrorism- Internal Terrorism Is Usually an Attack on the Legitimacy of the State- Internal Terrorism May Reflect the Failure of the State and the State System to Provide a Remedy for Oppression- The Threat of External Terrorism Has Been Used to Justify the Increasing Concentration of Power in the Political Apparatus StateAppendix: Guide to Additional Online ReadingsGlossaryIndex

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