Where does Law fit into TOK

[Morgan...]

For my TOK essay, I'm doing the title about evidence. I want to do an example about criminal law and courtrooms. And I want to fit it into one of the Areas of Kowledge, but I can't decide which one it'd fit in. ANy thoughts?

[Arrowhead]

Law itself would be an Area of Knowledge which generally employs reason and perception as Ways of Knowing, and sometimes emotion as well.

[Keel]

I'd have to disagree and put Law under the AoK Ethics as the Law is essentially a model of an absolute ethical code constantly refining itself to attempt to find an objective answer to ethical questions.

[Arrowhead]

I'd have to disagree and put Law under the AoK Ethics as the Law is essentially a model of an absolute ethical code constantly refining itself to attempt to find an objective answer to ethical questions.

Ummm...that would apply depending on which school of thought you subscribe to when it comes to the definition of law. Natural law theorists agree that it is exactly as you've described it. But positivists would disagree that law has absolutely anything to do with ethics and ethical dilemmas. It's all very subjective.

The idea of it being a code of absolute rules is itself a flimsy understanding (imho). But each to their own, eh?

[Keel]

I'd have to disagree and put Law under the AoK Ethics as the Law is essentially a model of an absolute ethical code constantly refining itself to attempt to find an objective answer to ethical questions.

Ummm...that would apply depending on which school of thought you subscribe to when it comes to the definition of law. Natural law theorists agree that it is exactly as you've described it. But positivists would disagree that law has absolutely anything to do with ethics and ethical dilemmas. It's all very subjective.

The idea of it being a code of absolute rules is itself a flimsy understanding (imho). But each to their own, eh?

I wouldn't be as knowledgeable about the issue as you would but I just came across this regarding legal positivism, would u say its reliable? And a flimsy understanding of what - the purpose of the Law or what Law is? Because I admit I know nothing of the latter but the former is common sense.

http://plato.stanford.edu/entries/legal-positivism/#1

The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism.

Edit: I also dispute the notion that Law uses perception as a WoK. In my opinion the WoKs used are reason, language and emotion.

Edited December 19, 2012 by Keel

[Arrowhead]

I'd have to disagree and put Law under the AoK Ethics as the Law is essentially a model of an absolute ethical code constantly refining itself to attempt to find an objective answer to ethical questions.

Ummm...that would apply depending on which school of thought you subscribe to when it comes to the definition of law. Natural law theorists agree that it is exactly as you've described it. But positivists would disagree that law has absolutely anything to do with ethics and ethical dilemmas. It's all very subjective.

The idea of it being a code of absolute rules is itself a flimsy understanding (imho). But each to their own, eh?

I wouldn't be as knowledgeable about the issue as you would but I just came across this regarding legal positivism, would u say its reliable? And a flimsy understanding of what - the purpose of the Law or what Law is? Because I admit I know nothing of the latter but the former is common sense.

http://plato.stanfor...l-positivism/#1

The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism.

Edit: I also dispute the notion that Law uses perception as a WoK. In my opinion the WoKs used are reason, language and emotion.

Well, for starters the quote you've used is a divisive one in jurisprudence because it's quite MacCormickan in origin, trying to find a middle ground between objectivity and morality. A pure positivist would rather find that social fact determines the content and structure and rule of law. Kelsen believed in the rule of the Basic Norm that all law derives itself from previous historical law and all law culminates into the Basic Norm which forms the ultimate basis.

Hart believed in the rule of recognition i.e. enforcers of law, enforce it because they objectively believe they have to and because internally they have an attitude of conformity towards law. There is (or at least shouldn't be) anything moral or ethical underpinning such conformity which is premised on an entirely consistent (so to speak) doctrine of professional responsibility of their positions.

Therefore, law determines the law i.e. law is the law is the law.

As far as the WoK. I agree language is important (can't believe I forgot that myself!).

But perception is VERY important! It stems from an understanding of legal realism. Law is decided and applied not as it is written, but as the literal content is perceived by the lawmaker/judge (golden rule) or moreover, when the judge superimposes upon the literal law his own view based on his perception of what Parliament would have intended when they enacted that particular law.

Evidence in all manners of trials are a matter of perception and in fact jury trials are all about perception of facts. By appealing to their sensibilities, does the jury perceive a reasonable doubt as to the guilt of the defendant? (criminal law) or alternatively, if they perceive the outcome in question to be a reasonable one in the circumstances (civil liabilities/claims)?

Edited December 19, 2012 by Arrowhead

[Keel]

Well, for starters the quote you've used is a divisive one in jurisprudence because it's quite MacCormickan in origin, trying to find a middle ground between objectivity and morality. A pure positivist would rather find that social fact determines the content and structure and rule of law. Kelsen believed in the rule of the Basic Norm that all law derives itself from previous historical law and all law culminates into the Basic Norm which forms the ultimate basis.

Hart believed in the rule of recognition i.e. enforcers of law, enforce it because they objectively believe they have to and because internally they have an attitude of conformity towards law. There is (or at least shouldn't be) anything moral or ethical underpinning such conformity which is premised on an entirely consistent (so to speak) doctrine of professional responsibility of their positions.

Therefore, law determines the law i.e. law is the law is the law.

As far as the WoK. I agree language is important (can't believe I forgot that myself!).

But perception is VERY important! It stems from an understanding of legal realism. Law is decided and applied not as it is written, but as the literal content is perceived by the lawmaker/judge (golden rule) or moreover, when the judge superimposes upon the literal law his own view based on his perception of what Parliament would have intended when they enacted that particular law.

Evidence in all manners of trials are a matter of perception and in fact jury trials are all about perception of facts. By appealing to their sensibilities, does the jury perceive a reasonable doubt as to the guilt of the defendant? (criminal law) or alternatively, if they perceive the outcome in question to be a reasonable one in the circumstances (civil liabilities/claims)?

In that case would you agree that a naturalist's interpretation of the law fits into the AoK Ethics and a positivist's interpretation fits into the AoK Social science?

In ToK, the word 'perception' is strictly reserved for 'sense perception', which I presume has nothing to do with Law or what you have just described.

Edited December 19, 2012 by Keel

[ellievt]

I haven't read all the comments above, so sorry if I'm repeating. I've just done my ToK presentation on emotion in the legal system, and whether or not it's right or wrong to consider it. It worked really well, as there are lots of cases that can be used as examples of where people agree emotion SHOULD be considered, and also examples where it should NOT. If you do it subtly you can get the audience involved without them realising! Good luck...

[Arrowhead]

In that case would you agree that a naturalist's interpretation of the law fits into the AoK Ethics and a positivist's interpretation fits into the AoK Social science?

In ToK, the word 'perception' is strictly reserved for 'sense perception', which I presume has nothing to do with Law or what you have just described.

I stand corrected.

Edited December 20, 2012 by Arrowhead