Chapter Two American Law and Legal Theory

Copyright © Houghton Mifflin Company. All rights reserved.2 | 2 Legal Theory Jurisprudence –Normative How law should function The ideal –Empirical How law actually functions Impact of law on society

Copyright © Houghton Mifflin Company. All rights reserved.2 | 3 Natural Law: An Emphasis on Higher Principles Natural Law: An emphasis on higher principles –Ancient and Medieval Philosophers Aristotle – laws should comport with and reflect justice St. Augustine – laws should be consistent with divine law St. Thomas Aquinas – laws in conflict with the higher laws were illegitimate

Copyright © Houghton Mifflin Company. All rights reserved.2 | 4 Natural Law: An Emphasis on Higher Principles Natural law theorists in the Modern Era Natural law in the Enlightenment Many early theorists grounded natural law in religion –Enlightenment era philosophers like Montesquieu, Hobbes, and Locke, however, saw higher principles derived from reasoning as the ultimate source of law

Copyright © Houghton Mifflin Company. All rights reserved.2 | 5 Natural Law to Positive Law Discarding Natural Law for Positive Law –The late 1800s saw a gradual abandonment of higher law for positive law (or that law passed by governmental actors) –Future Supreme Court Justice Oliver Wendall Holmes, Jr. was an early and influential critic of natural law Pragmatic in achieving society’s goals Socially useful

Copyright © Houghton Mifflin Company. All rights reserved.2 | 6 Natural Law: An Emphasis on Higher Principles World War II rekindled interest in natural law as scholars questioned how the Holocaust and other atrocities committed by the Nazi regime could be condemned if there were no higher principles to which laws passed by legitimate governmental authorities could be compared. –Lon Fuller and Ronald Dworkin were among the most prominent of the post-World War II natural law theorists.

Copyright © Houghton Mifflin Company. All rights reserved.2 | 7 Basic Balance Lon Fuller and Ronald Dworkin were among the most prominent of the post- World War II natural law theorists. –Law must respect individual’s inherent rights when establishing social order

Copyright © Houghton Mifflin Company. All rights reserved.2 | 8 Legal Positivism Focusing on the Written Law –Coke and Blackstone The earliest proponents of written law Legislatures pass statutes, laws Judges write opinions Value of precedent –Create certainty and uniformity

Copyright © Houghton Mifflin Company. All rights reserved.2 | 9 Legal Positivism: Focusing on the Written Law Belief that laws were made in response to societal needs and goals Not to accord with some higher principle Grounded in traditions, practices of the community Example: Right to Die

Copyright © Houghton Mifflin Company. All rights reserved.2 | 10 Legal Positivism: Focusing on the Written Law Jeremy Bentham –Code of law based on “greatest happiness principle.” –Utilitarian principle argued that there were no inalienable rights but only rights recognized by the government through law which should, in turn, benefit the greatest number of people. John Austin –The only “real” laws are those that enable a gov’t to punish those who failed to obey those laws. H.L.A. Hart –Valid laws need not be grounded in morality or higher principles –Valid law passed by duly certified & publicly recognized authority

Copyright © Houghton Mifflin Company. All rights reserved.2 | 11 Sociological Jurisprudence The Progressive Movement in U.S. –Law used to promote social welfare and the public good New York’s regulation of bakers’ working conditions and work hours Supreme Court case of Lochner v. New York

Copyright © Houghton Mifflin Company. All rights reserved.2 | 12 Sociological Jurisprudence Roscoe Pound and Benjamin Cardozo –Consider practical effects of law on people –Needed to be taken into account by both judges and legislators –Role of judges to second guess legislators

Copyright © Houghton Mifflin Company. All rights reserved.2 | 13 Empirical Theory How Law Functions –Legal Realism –Law and Economics –Critical Legal Studies –Feminist Legal Theory Formal Equality or Liberal Feminism Relational Feminism Dominance/Radical Feminism Critical Race Feminism –Critical Race Theory –Law and Postmodernism