Jurisprudence Legal Theories of Law

Jurisprudence is the study of law and legal philosophy Mainly deals with legal theories of law

Natural Law This is the oldest theory of law, dating to ancient times. Essential arguments: There is an ultimate “law” or moral system which transcends (go beyond) humanly created law This law is eternal and unchanging Positive (written) law is said to be an imperfect reflection of the natural law The natural law is understood to be a standard from which to evaluate positive law When natural and positive law do not correspond, positive law is said to be an “unjust law”

Key Natural Law Theorists Thomas Aquinas (1224-1274) Aristotle (384-322 BC) Cicero (106-43 BC)

Two “Schools” of Natural Law Theological School Holds that created universe consists not only of material substance, but also a moral order God is the author of this moral order, or “natural law” Secular School Product of Englightment Maintained the idea of transcendent, eternal moral law Rejected God as creator of law; rather, moral law is simply part of human nature Moral principles are understood through development of reason

Evaluation of Natural Law Troublesome issues: How can we verify these moral principles? How can we know the nature of human nature? How do we account for wide variation in moral precepts held by different cultures and across time? Has been argued that natural law theory is inherently conservative Responses from a natural law theorist Moral principles are not subject to positivistic empirical verification This does not mean that such a reality does not exist; merely that we are not using the right tools Wide variation is accounted for by fact that all positive law and custom itself is an imperfect reflection of natural law Can be argued that natural law actually facilitates radical change

Legal Formalism Focused exclusively on the positive (formal) law Essentially regards the law as “amoral” Law is seen as a closed system of rules Explanation for how or why rules exist is framed within the context of the legal system itself Legal education today is primarily influenced by legal formalism

Key Legal Formalists John Austin (1790-1859) Hans Kelsen (1881-1973)

Evaluation of Legal Formalism Troubling issues: No legal system exists in a vacuum; hence cannot fully understand law by focusing only on the law itself Cannot account for legal change Inherently conservative Response from a legal formalist Legal formalism is a practical approach to law Resulted in consistency in sentencing and other legal decisions

Cultural and Historical Schools Marks the beginning of the recognition of wider social forces operative in law Law is explained in the context of immediate cultural and historical milieu of specific legal systems Typically, law is explained as a formalization of a “common conscience”, which itself developed out of custom and habit Historically, law and legal evolution reflects an evolution taking place in the larger society

Key Cultural and Historical Theorists Frederick Karl von Savigny (1779-1861) Sir Henry Maine (1822-1888)

Evaluation of Cultural and Historical Schools Troublesome issues Is there such a thing as a “common conscience” (especially in modern societies)? If so, does it shape law or is it shaped by law? Response from a cultural/historical theorist This is the first school that seeks to look to social and historical milieu to understand law (give us credit!) This school is first to attempt to account for change in the positive law

Utilitarianism Here, law is seen as a “dependent” variable The question is, “How does the law impact society?” Utilitarians premise their ideas on the commitment to “the greatest good (happiness) for the greatest number See law (especially criminal law) as inherently evil (or at least restrictive) Hence only justification for criminal law is that it thwarts a greater evil

Key Utilitarians Jeremy Bentham (1748-1832) Rudolf von Ihering (1818-1892)

Evaluation of Utilitarianism Troubling Issues Is “the greatest good for the greatest number” a proper moral basis upon which to formulate a system of law? This premise assumes that humans are rational decision-making creatures. Can we assume this? Response from a Utilitarian This approach allows us to quantify and measure effectiveness of law--by quantifying “good” and “number”

Sociological Jurisprudence Sociological jurisprudence focuses on two primary questions: What is the relationship between the “law in action” or “living law” and the “law on the books” or “positive law?” What are the social dynamics which shape and are reflected in positive law? Argue that positive law should reflect the living law. Also interested in what the positive law “says it does” and what it actually does.

Key Figures in Sociological Jurisprudence Eugen Ehrlich (1862-1922 Roscoe Pound (1870-1964)

Evaluation of Sociological Jurisprudence Problematic Issues What are the “living laws” which positive law should reflect? Response from a sociological jurisprudent theorist This is the first time legal theorists are thinking about the importance of considering “living law” in shaping positive law

Legal Realism Has much in common with sociological jurisprudence focus on disparity between what the law says it does and what it actually does Legal realists are primarily concerned with the “law in action” as their focus of study Suggest that judges “make law” rather than “find it” in making decisions Tend to focus primarily on the trial courts

Key Legal Realists Oliver Wendell Holmes (1841-1935) Karl Llewellyn (1893-1962) Jerome Frank (1889-1957)

Evaluation of Legal Realism Troublesome points Depicts an image of the courts as more fluid than they really are--there are parameters within which judges must operate Response from a legal realist The human element in the court process has heretofore been ignored Observation of actual courtroom behavior reveals that the legal process is indeed much more fluid than most recognize