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Lecture notes Law and society lecture notes (Scots Law LLB) Understanding Jurisprudence
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Law and Society Lecture NotesThe case of the Speluncean:
This case lets us think about this law of 'Whoever shall
wilfully take the life of another will be sentenced to death'
Murder is morally and legally wrong but this case
extraordinary so does this mean different circumstances
can lead us to a different judgement
This makes us think about what process judges should go
through to make decision and should this process be
focused solely on the law or also take into account morals
Law and Morality:
We must think about the place of law in society
We have laws but do morals help create these laws or are
they separate
What if individuals don’t agree with the law as in does not
think it is moral how does this affect them and what do
they do in this circumstance
Can people pick and choose what laws to follow due to
their individual morals
Natural law had different views but we focusing on classical
What is classical 'natural' law:
Classical natural law focuses on why natural law should be
obeyed
Nature inclines individuals to different things such as to
seek certain things such as survival or having a child
Laws to help achieve our natural ends which we seek to
achieve
What naturally is ought to be
Desire for survival or create new beings
Contrary to natural law things that stand in the way of
achieving these goals
What do natural law theorists believe:
, They believe that society should assist individuals to fulfil
their purpose
Killing people is against natural law
Believe that naturals law same for everyone and stay same
forever, eternal truths
The role of reason:
The dominant idea that has emerged is that humans can
find out these through their reasoning skills
These reasoning skills will allow and assist us in
determining what is our natural purpose and what rules
help us achieve this
Exercising this reason allows us to see truth of natural law
to find the right and appropriate ways
If we allow people to kill anyone then not good for society
result in population loss and unable to raise family
With reason we see that killing people is against our
natural law
Man made v Natural:
Natural lawyers see that the natural law is superior to
manmade law however they recognise that there is a need
for man made law
These laws may conflict with each other
Man made may lack validity if conflicts with natural
Stems from idea that men and women have a natural
purpose and there is a natural law to enable us to reach
these natural ends
Same for all people worldwide and eternal
Higher principles of natural law show what is right and
moral
Our ability to reason allows us to determine natural law
Ideas developed over a large time scale
Ancient Greece:
, Their thinking helped start off thoughts
Plato had idea that there were truths to the world these
ideas such as morality and justice which exist
independently of our minds, external existence
Referred to Plato's doctoring of forms
Teach others, called idealism
Natural theorist don’t agree with Plato's ideas completely
but agree with justice is knowable and is set and eternal
which applies no matter society
Aristotle did not follow this theory, he was a biologist and
saw that people change and grow and progresses
Potential for further change so saw universe is always
dynamic
Everything that exists has a pre determined end according
to Aristotle
Creature fit for life and society made to meet a pre
determined end
Humans should be helped by laws made
Take the idea that there is a inner potential of humans to
live a moral life and the law and society is to allowed them
to show and develop this to reach natural end
A teaches to look into society P views that we apply reason
Christianity:
Teachings of Christ give idea of natural law
People should submit to will of god which is above all
Man made is of lower status
St T A very influential and ideas he looks into views of
Aristotle and comes up with 4 separate types of law
1 eternal law divine law of god
2 natural law which lets human understand through reason
3 divine law
4 Humanly posited law made by states
Reflections on natural law:
, Natural law has historical roots of thinking
What it means to be human and people in society should
be helped to meet end
Men and women have a natural purpose and a higher law
helps us to achieve this and all people can access this
through ability to reason
Many of our laws try to create positive way to live
Some may see this higher law as religion
There are different types of justification that lead into
natural law
E.g. animal rights linked to natural laws and reasoning
types are perhaps placing animals in place of humans
Returning to Speluncean explorers:
How do we begin to think about this as natural theorists
We see there is a man made law against killing of others
which agrees with natural law
Complexities when answering questions as hard to
differentiate between moral right and wrong and strategy
Is a judge able to make this decision effectively
The emergence of positivist thought:
Decline in belief of natural law which was replaced by
scientifical advances
This is complete contrast to natural law
At this time new political ideas formed, liberal ideas
Thinkers put across the idea that law and sovereign did not
come from god and the state was a human invention
What is the appropriate role of the state
JB looked at the problems in natural law
Critique of natural law:
Statements come from observations of human acts
Because this IS how man is then he OUGHT to
Fact then to a judgement
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