JURISPRUDENCE

Unit 1

• he role of positivism How law(s) ought be drafted and the role of these laws Do laws relate to any higher role, or are they simply man-made? Should the Statement of Individual Rights that you create for Tagg include directive language? Should the Statement of Individual Rights be philosophical as a statement of moral rights?

• t has been suggested that the development of law is a function of natural law. Do you believe this to be true? Alternatively, can the converse be true as well in that law has influenced the development of natural law theories?

• Think about the role of natural law in the process of developing the Statement of Individual Liberties for the Island Nation. Then write a three page paper discussing natural law and its relationship to civil liberties.

• Natural law is a foundational concept of the rights and liberties of many legal systems in history. As part of your analysis for this project, consider the application of natural law in other legal systems you have found in history - e.g. early English law such as the Magna Carta that you read in LS 500.

• In addition to your readings this week, perform additional research on both principles. Support your statements with references from your research.

• Your paper should be at least three pages in length, double-spaced, and follow correct APA citation format.

• Natural Law• Legal Positivism• Plato• Aristotle• Augustine• Thomas Hobbes• John Locke• Jeremy Bentham

Legal Positivism• The legal positivists have suggested that there was no link between law

and morality and hence no moral limitations on the legal system. One of the key factors of the reign and success of the National Socialist Party in Germany was that they were operating under positive law. They used lawyers and judges, especially in the early years (the 1930s), to accomplish many of their results by simply implementing legal doctrines and having the courts enforce them.

• When western democracies raised issues about National Socialism, they responded by saying that the individuals charged in fact did have a trial before a judge. In fact, they were meticulous in documenting these

laws and then using them to suppress liberties. Many of the people � �who were the focal point of National Socialism took heart in the use of the legal system, believing that this was simply a brief period and that the traditions of a moralistic legal system would result in another correction. They were of course proven wrong.

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• Many of the miseries suffered by African Americans in this country were authorized by statute and approved by the courts. Research the Nuremberg Trials that took place after World War II and evaluate the rulings of the Court with regard to the argument that what was done in Germany was lawful. Evaluate the justification of doctrines such as separate but equal (thrown out � �in Brown v. Board of Education and the Dred Scott ruling 19 How 393 (1857), in which Justice Roger Brooke Taney denied U.S. citizenship to all blacks, free or slaves. This is called legal positivism and the separability thesis.

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Natural Law• The Reverend Martin Luther King was in a Birmingham Jail in 1963 for

what was alleged to be civil disobedience. A group of clergymen from Alabama published a statement calling Dr. King s actions unwise and � �untimely . Dr. King responded saying that he believed the clergymen to �be men of good will and that the criticisms were sincerely set forth. He went on to comment that he was in Birmingham because there was injustice there and that all communities are interrelated.

• Dr. King believed that injustice anywhere is a threat to justice everywhere. His argument to the clergymen was that efforts at civil disobedience and demonstrations pale in comparison to the harm being suffered by black citizens in the city. Dr. King suggested that the goal of the demonstrations was to open a negotiation to effect changes in the system.

• The clergymen ended their letter by commending the Birmingham policy for keeping order.

• In light of these events, consider the following qu

• The two most important clauses of Magna Carta are among the legal clauses. Clause 40 promises, “To no one will we sell, to no one will we deny or delay right or justice.” This clause establishes the principle of equal access to the courts for all citizens without exorbitant fees. In clause 39, the king promises, “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” This clause establishes that the king would follow legal procedure before he punished someone. Historians have debated at length the meaning in 1215 of “by lawful judgment of his peers or by the law of the land,” and who exactly was covered by the term “free man.” By the later 14th century, however, statutes interpreting the Magna Carta equated “judgment of peers” with trial by jury (which did not exist in criminal cases in 1215). Other statutes rephrased “by the law of the land” as “by due process of law.” These later statutes also substituted “no one” or “no man of any sort or condition” for “no free man,” which extended the protections of the clause to all the king’s subjects. These protections were cited in many founding documents of the American colonies and were incorporated into the Constitution of the United States.

• By most accounts only clauses 39 and 40 of the Magna Carta remain valid law in England.