Theories and Concepts of Law

The OG Theories Ancient/Medieval Natural Law: God/Supreme being created the universe according to eternal and unchangeable laws- the closer human laws mirror those natural laws the better society will function Any laws that are made by the state that contradict human laws therefore should not be followed or obeyed….that’s tricky Law is closely associated with morality

Rationalism Reason is a spark of the divine, therefore law as its highest purpose is to help citizens use their faculty to reason and to live a good life Punishment helps too Parents should care for their children- law? Each person naturally tries to preserve his or her own life- law? People should do no harm to others- law? Assist the poor and the sick or elderly- law?

Along Came Hobbes 17th and 18th century Intellectual movement- Age of Reason/Enlightenment Remove religious revelation or medieval philosophers- just analyze people The result is known as Positive Law- relationship between citizens and the state

Positive Law Developed following a period of widespread religious, political and social upheaval (English Civil War and the beheading of Charles I)- obviously these issues affected the thinkers of the time Natural law did not seem to accord the reality of what was happening all around them; the reality was this; Law was nothing more than what was established by the state and for the good of the state as whole- no moral purpose other than to ensure the survival of the state Therefore law must be obeyed and anyone who challenges it is to be removed or punished

Hobbes and Locke

Hobbes v. Locke Hobbes Locke 1588- 1679 State of nature of a human is war and conflict- the strong plundered the weak Without a common power to hold all in ‘awe’, there is a state of war Law is made by giving up rights in order to have stability 1632- 1704 State of nature of a human is social and co- operation- we all work for ‘our’ benefit People’s passions can get the best of them and this leads to injustice as the strong take from the weak Therefore it is advantageous to people to form societies to preserve authority Therefore people willingly gave into to societies

Hobbes vs Locke Hobbes- men are evil, unknowing if justice- can only have peace if everyone follows the law- people give up their freedom for stability, no such things as natural right Locke- men are good, know what is rights and wrong- the ruler of a community must not abuse the natural rights of humans, if so, then the people were justified in rebelling Life, liberty and Property- 1776

Contemporary Legal Theories

Modern Thought Modern legal theorists accept the principles of the past philosophers However, they have challenged many of the views of jurisprudence and added their own contributions Although there are quite a few modern schools of thought related to law, the following are some of the more prominent ones.

Legal Formalism Law should be treated like math or a science Law is nothing more than a body of rules, nothing more Judges should only apply the law and have no authority to act outside of it Judges cannot depart from the law or use discretion in unusual cases The law is derived from the power of the state- therefore judges should be remote and disinterested- use scientific application of precedent

Legal Realism Rejects the ideas of formalism because the law itself is uncertain, vague and based on a judge’s personal view Personal prejudices, moods, experiences play a role in the decisions (what a judge had for breakfast, just before you hand an assignment in you PO your teacher) Judges are in fact the real authors of the law Judges can shape precedent to support their conclusions

Critical legal Studies (CLS) “The master’s rolls will never dismantle the master’s house” A. Lord- Hey Trudeau, ever hear of this one? Those with power in society are unlikely to give people with less power the means to make social change Extends Realism to a critique of the system- laws contain biases of powerful groups and ensures that justice and fairness are in reality just a façade Feminist Jurisprudence, Laws Based on Economics, Critical Race Theory

Feminist Jurisprudence The legal system upholds political, economic, and social inequality for women Logic and language of law creates and enforces male values against feminine stereotypes and myths Even laws that protect women are there as an indication of the view that women are property of men Rape law was not made to protect a woman but to protect the value of a woman as a commodity *BIG FREAKIN’ DEAL TODAY

Law Based on Economics The purpose of all law is resource allocation, nothing more. Determine how resources should be divided and therefore where power can lay Fair allocation or oppression? Fiscal functionality is a popular legal perspective- a law forcing people to wear bike helmets would be considered good only if it saved money through fewer people’s use of health care services Judges should think of economics and not morality or justice when making decisions Sometimes labeled as “Marxist theory” when combined with CLS

Sub-Categories of Contemporary Theories

Spirit of the Law Start with the law as it is written, but judges should address what the purposes and values of the written law are when they apply it “read between the lines”, speculate what the intent of the lawmakers was when they wrote it

Sociological Jurisprudence Judge the law only in light of the impact on society The law cannot be separated from society and politics; the law has tremendous influence in a state Very flexible approach, realist, CLS and a bit of spirit

Utilitarian/Popular Morality vs. critical Morality The voice of the society or community should shape a court’s decision Justice should reflect the will of the majority, therefore any laws made should impact the majority of the population in a positive way Critical Morality is the same root- but decisions should look at the will of the majority and address the most reasonable view not just the majority will (think about this very carefully)