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

Aristotle (384-322 BC)

Cicero (106-43 BC)

Thomas Aquinas (1224-1274)

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

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

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 TheoristsFrederick 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 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.

Sociological Jurisprudence

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