FREE Case Review (866) 588-0600

6 Major Legal Theories Explained (Which Theory to Follow?)

Awards & recognition
C.L. Mike Schmidt Published by C.L. Mike Schmidt

Schmidt & Clark, LLP is not currently accepting these types of cases and has posted this content for information purposes only. We encourage you to seek a qualified attorney, if you feel you might have a case.


Quick Summary

  • Legal theories significantly shape everyday legal decisions, influencing how laws are interpreted and enforced in landmark cases like Roe v. Wade (natural law) and Riggs v. Palmer (legal positivism).
  • Different legal theories can lead to vastly different outcomes in similar cases, as illustrated by scenarios where moral arguments versus strict legal interpretations affect sentencing.
  • Grasping these foundational theories is crucial for anyone navigating the legal landscape, as they provide the framework for legal arguments and judicial decisions.
  • There are six major legal theories—natural law, legal positivism, Marxist law, realist law, critical legal studies, and feminist jurisprudence—each offer unique perspectives on the nature and application of law.

A lawyer holding paper work with a gavel in front

There are three types of legal philosophy: analytic jurisprudence, normative jurisprudence, and critical law theories. Analytic jurisprudence determines what makes law different from other norms, such as morality.

Normative jurisprudence involves the evaluation of law from the perspective of whether it is just or efficient. Critical law theories concern how power is distributed within society through legal institutions.

There are 6 major legal theories: natural law, legal positivism, Marxist law, realism, critical legal studies, and feminist jurisprudence.

1. Aristotle's Natural Law Theory: Its Impact on the Founding Fathers

A lawyer holding a book with a gavel on the tableNatural law theory believes that a higher law is created by nature and applies to all human beings [1]. This legal theory was first proposed by the Greek philosopher Aristotle. 

Natural law theory posits that inherent moral principles govern human behavior, which are universally applicable and can be discovered through reason.

The key idea behind natural law is an objective morality, moral obligation, moral principles, or a moral force independent of human opinion. This objective morality can be discovered through reason and is the foundation of all human laws, not legal rules.

Natural law theory has been influential throughout history, and many of the Founding Fathers of the United States were supporters of this theory.

One of the most famous proponents of natural law was Thomas Aquinas, who argued that four "universal" laws apply to all humans:

  • The law of nature
  • The law of reason
  • The positive divine law
  • The positive civil law

Real-World Example/Case Study

A significant application of natural law principles can be seen in the landmark case Roe v. Wade, where the U.S. Supreme Court recognized a woman's fundamental right to privacy, invoking natural law to support reproductive rights.

Natural Law in Today’s Debates

Natural law theory is intrinsically linked to human rights, as it posits that certain rights are inherent and universal, grounded like humanity itself

The new legal rule gives judges and other officials an unknown reason to act (or not to act). The law also gives citizens a new reason to take action (or not to take action).

Critics of this legal theory argue that it is based on a false dichotomy between objective and subjective morality. They also say that natural law legal theory is too vague to be helpful in specific legal situations.

Natural law remains at the center of discussions on major issues like abortion, same-sex marriage, and human rights, with advocates arguing for laws grounded in universal moral values.

This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity
- William Blackstone, English jurist, Judge, and Tory Politician

According to the Constitutional Rights Foundation, Aquinas believed that the first two laws (the law of nature and reason) were objective and could be discovered through reason [2].

The other two laws (the positive divine and the positive civil law) were created by humans and were not necessarily objectively true.

Applying Natural Law in Today’s Legal Practice

Lawyers today draw on natural law principles to challenge unjust laws, grounding their arguments in fundamental moral standards. This approach is especially relevant in constitutional cases where attorneys argue for rights and freedoms they believe should be universally upheld.

Natural law also serves as a foundation in human rights advocacy, often informing legal battles for dignity and equality.

In international law, natural law principles shape arguments for global standards of justice, including in cases related to environmental protection, where lawyers advocate for sustainable policies that respect the intrinsic rights of all beings.

Through these applications, natural law continues to guide legal efforts toward a fairer, more moral world.

A lawyer using a tabletAccording to IEP, legal positivism believes there is no higher law than the law created by humans [3]. This legal theory was first proposed by the English philosopher Jeremy Bentham.

Bentham believed that humans make all laws and are not based on any objective morality. He also argued that the law aims to maintain order and social stability.

According to this legal theory, laws differ in different places and times. People who believe in this theory include Austin, Bentham, and H.L.A Hart. 

These philosophers think that law is a command from the government to the people, and it has three parts: the command, the government, and the people. The government is the one who makes the law, and the people have to follow it, establishing a legal system.

Types of Positive Law

  • Strong Positive Law: This view holds that the legitimacy of a law comes solely from the fact that it was made by the government, regardless of any moral considerations.
  • Weak Positive Law: This approach allows for the idea that a law can be morally good even if the government didn’t create it.

Support and Criticism of Positive Law Theory

  • Supporters believe positive law is appealing due to its simplicity, as it avoids the need to use morality to assess the value of a law.
  • Critics argue that this simplicity is also a weakness, as it overlooks the potential for laws to be unjust and lacks depth in legal reasoning.

Role of Sanctions in Legal Compliance

Sanctions encourage people to obey the law by providing consequences for non-compliance. While some follow the law to achieve expected rewards, others obey even without direct rewards, reflecting varied motivations for compliance.

Real-World Example/Case Study

In the case of Riggs v. Palmer, the court ruled against a murderer inheriting from his victim, demonstrating how legal positivism can lead to outcomes that prioritize societal order over moral considerations.

Legal Positivism in Today’s Debates

This theory has led to the establishment of clear legal codes and frameworks that govern behavior without relying on moral judgments.

Even though all positivists agree that there are possible legal systems without moral constraints on legal validity, there are different views on whether it is possible to have a legal system with moral constraints.

Applying Legal Positivism in Today’s Legal Practice

Legal positivism is applied in contemporary legal systems where laws are strictly interpreted based on written statutes rather than moral implications. Lawyers utilize legal positivism by arguing based on statutory language and established precedents, focusing on the letter of the law rather than ethical considerations.

Courts frequently base decisions on established statutes and regulations, prioritizing adherence to written law over subjective moral considerations.

Recent Supreme Court cases, like United States v. Lopez, highlight this approach by focusing on legislative authority rather than moral reasoning.

Legal positivism is incredibly influential in criminal law, administrative law, and regulatory frameworks, where evident, enforceable rules are essential.

3. Marxist Law Theory: A Tool for Oppression or a Path to Justice?

A person using a magnifying glass on paperMarxist law is a legal theory that Karl Marx created. Marx was a German philosopher who lived in the 19th century. He is best known for his theories about economics and politics.

According to SagePub, Marx believed that the law is a tool the ruling class uses to oppress the working class. He argued that the law is not objective or neutral but is biased in favor of the ruling class [4].

Marx believed the only way to achieve justice was to overthrow the ruling class and create a classless society.

Real-World Example/Case Study

The analysis of labor laws through a Marxist lens reveals how legislation often favors corporate interests over workers’ rights, as seen in various labor disputes across industries.

Marxist Law in Today’s Debates

This theory has influenced discussions around economic justice and reforming laws disproportionately affecting marginalized communities.

The legal theory assumes that people can achieve perfect equality when communism is reached. This has not been proven yet, as evidenced by the failed attempts in countries like the former United Soviet Socialist Russia (U.S.S.R.). However, this theory is challenged, and private property theory is gaining ground.

Some people think Marxist law is a good theory because it explains why some laws are unfair and provides a way to change them.

Critics of Marxist law argue that it is too radical and does not consider that some laws are necessary to maintain order in society.

Applying Marxist Law in Today’s Legal Practice

Contemporary activists use Marxist principles to critique social justice issues, advocating for reforms that address systemic inequalities perpetuated by existing legal frameworks.

Courts sometimes take economic disparities into account in cases involving labor rights and social welfare, subtly reflecting Marxist ideas in rulings on corporate regulation and workers' rights.

Though not explicitly referenced, Marxist concepts have influenced areas like labor law, social justice efforts, and civil rights legislation, all aimed at reducing inequality.

Lawyers advocating for labor rights often use Marxist critiques to challenge unfair laws and push for reforms that protect and empower the working class.

4. Realist Law Theory: The Ever-Evolving Nature of Judicial Decisions

The realist law theory is interested in how the law works rather than its traditional definitions. Under this law theory, the law is based on judicial decisions in the court. The theory holds that rules that are not used to solve practical cases are not laws but merely exist as words on paper. These dead words of law only become alive when used to solve a dispute between two parties.

Real-World Example/Case Study

Obergefell v. Hodges (2015) legalized same-sex marriage nationwide, recognizing marriage as a fundamental right under the Fourteenth Amendment.

This decision reflects a realist approach by acknowledging the evolving social norms and personal impacts on same-sex couples rather than strictly adhering to traditional legal interpretations.

Justice Kennedy’s opinion highlighted how denying marriage rights affected dignity and equality, demonstrating that the Court considered real-world experiences and societal changes.

Realist Law in Today’s Debates

Realists believe that the law is constantly changing and evolving. They argue that today's law may not be the law tomorrow. This is because new cases are continually being decided by a judicial decision in court, which can change the law and legal practice.

This theory is based on the common law legal system. In this system, the decision made by a court in a previous case is used as a guide to decide future similar cases.

However, based on what I see in my practice, this theory does not apply in the civil law legal system. This is the other primary legal system globally, and it is different because it is based on a written code of law.

This theory suggests that the lawmaker in the civil law legal system is not the judge. The people who believe this theory include Justice Homes, Lawrence Friedman, John Chipman Gray, Jerom Frank, Karl N. Llewellyn, and Yntema.

Applying Realist Law in Today’s Legal Practice

This approach has led to more adaptive legal interpretations that reflect changing societal values and realities.

Realist principles guide judges and lawyers in interpreting laws based on their practical implications rather than rigid adherence to texts.

Judges are increasingly factoring real-world contexts into rulings, weighing societal impacts alongside legal texts.

Cases like Obergefell v. Hodges, which acknowledged shifting social norms around marriage equality, exemplify this realist approach.

Realism plays a major role in family law, torts, and civil rights cases, where practical outcomes are essential. Lawyers apply realist principles by presenting evidence of how legal decisions impact individuals and communities, emphasizing the tangible effects of the law.

The function of realist jurisprudence…is not to make the law but to describe how it works
- Justice Benjamin N. Cardozo, American Lawyer, and Jurist

A lawyer holding paperwork while writing on a notebookAccording to Law Cornell, the CLS movement tries to expand the realism of law into a critique of mainstream jurisprudence from a Marxist perspective [5].

Some people think that the realists do not understand how much indeterminacy there is in law. The realists believe that this indeterminacy is only in some instances.

Real-World Example/Case Study

A powerful example of Critical Legal Studies (CLS) principles is Brown v. Board of Education (1954), which ruled racial segregation in public schools unconstitutional.

Although it predates CLS, the case reflects CLS ideas by challenging legal structures that reinforced inequality, like the “separate but equal” doctrine.

This landmark ruling targeted systemic racial injustice, paving the way for laws aimed at dismantling entrenched discrimination—a core aim of CLS in promoting social equity.

CLS Law in Today’s Debates

This movement has prompted re-evaluations of various laws and policies through a lens that prioritizes equity and justice over traditional legal interpretations.

The CLS movement believes that the law is not neutral. They say that the law supports the interests of those in power. This theory is based on the work of Karl Marx. He argued that the law was a tool that was used by the ruling class to keep their power.

The CLS movement has been criticized for being too radical. Some people say their theory does not consider that some laws are necessary to maintain societal order.

Applying CLS Law in Today’s Legal Practice

Critical Legal Studies (CLS) encourages courts to consider the broader social impacts of their rulings, especially on marginalized groups.

Though not always directly cited, CLS perspectives are evident in cases addressing systemic racism and economic inequality.

This approach has influenced civil rights, environmental, and family law by challenging existing power structures.

In practice, lawyers involved in social justice often apply CLS principles to contest unjust laws and push for meaningful reforms that address underlying societal issues.

6. Feminist Jurisprudence: How the Law Impacts Women's Rights and Equality?

Feminist legal theory is interested in how the law affects women. This theory says that the law is not neutral. It isn't very objective against women. This theory is based on the work of feminists like Catharine MacKinnon, Robin West, and Deborah L. Rhode.

Real-World Example/Case Study

Whole Woman's Health v. Hellerstedt (2016) is a pivotal example of feminist jurisprudence, where the Supreme Court invalidated Texas regulations that imposed unnecessary restrictions on abortion clinics, ruling that they created an "undue burden" on women seeking abortions without offering genuine health benefits.

This decision aligns with feminist legal theory, which argues that laws should be assessed based on their real-world impact on women’s rights, health, and autonomy rather than solely on neutral wording.

By prioritizing the burdens these laws placed on women, the Court’s decision reflects feminist jurisprudence’s goal of addressing legal barriers that disproportionately affect women and ensuring that legal interpretations consider women’s lived experiences.

Feminist Jurisprudence Law in Today’s Debates

Feminist jurisprudence challenges traditional legal frameworks, arguing for laws that address gender inequalities and support women’s autonomy, particularly in areas like reproductive rights, workplace discrimination, and gender-based violence.

Supporters contend that feminist legal theory drives essential reforms for a fairer, more inclusive system, as seen in cases like Whole Woman's Health v. Hellerstedt, which prioritized women’s health over restrictive abortion laws.

Critics, however, argue that feminist jurisprudence may overly politicize legal interpretations, potentially shifting the focus from neutrality to advocacy.

Despite these critiques, feminist perspectives continue to influence critical debates, aiming to make the law more reflective of diverse lived experiences.

In my opinion, the most important thing to remember is that the law is not neutral. It isn't very objective against women. Feminist jurisprudence is an excellent way to understand how the law affects women. However, critics argue it is too focused on gender and does not consider other important factors.

Applying Feminist Jurisprudence Law in Today’s Legal Practice

Feminist legal theories inform contemporary debates around reproductive rights, workplace discrimination, and domestic violence legislation.

Courts are increasingly incorporating feminist perspectives in cases involving gender discrimination and harassment, particularly in family law, employment law, and reproductive rights.

Cases like Whole Woman's Health v. Hellerstedt exemplify feminist jurisprudence by prioritizing women’s health rights over restrictive state regulations.

Lawyers advocating for women’s rights often draw on feminist theories to address discrimination and seek fair treatment, ensuring legal arguments reflect the push for gender equity and protection under the law.

The majority of early feminist legal theorists adopted a discrimination model to the issue of gender. Their objective was to outlaw biased treatment and provided laws that allowed women equal opportunities with men
- Martha Albertson Fineman, American Jurist, Legal Theorist, and Political Philosopher

Understanding the foundations of various legal theories helps illuminate how different perspectives influence the interpretation and application of law.

Each theory provides a unique lens for viewing the role of law in society, whether through moral principles, constructed laws, or the effects on marginalized groups. This comparison clarifies how different theories address the nature and purpose of law.

Aspect Natural Law Legal Positivism Marxist Law Realist Law Critical Legal Studies Feminist Jurisprudence
Foundation Moral principles Human-made laws Class struggle Judicial decisions Power dynamics Gender equality
View of Law Universal and objective Relative and constructed Tool for oppression Evolving and practical Reflective of societal power Biased against women
Focus of Analysis Ethics and morality Legal texts and statutes Economic factors Judicial behavior Social implications Gender relations

Strengths and Weaknesses of Legal Theories

Each legal theory has its strengths and weaknesses, which shape its application and influence within the legal field. This table provides a closer look at how these strengths and limitations affect each theory’s role in modern legal discourse.

Legal Theory Strengths Weaknesses
Natural Law Provides a moral foundation for rights; influences human rights law. Can be vague or subjective; may conflict with positive law.
Legal Positivism Offers a clear framework; emphasizes rule of law. May ignore moral implications; can uphold unjust laws.
Marxist Law Highlights systemic inequalities; advocates for social justice. Often viewed as too radical; may overlook societal order.
Realist Law Reflects practical realities; adaptable to societal changes. May lack clear guidelines; can lead to unpredictable outcomes.
Critical Legal Studies Challenges traditional norms; exposes biases in law. Seen as overly critical without solutions; may be perceived as radical.
Feminist Jurisprudence Advocates for gender equality; highlights women’s issues. Sometimes perceived as too narrowly focused on gender issues.

These comparisons showcase each theory's unique contributions and limitations, reflecting the diverse ways in which legal scholars and practitioners approach the law’s role in shaping society.

Related Articles:

Read articles related to personal injury and product liability lawsuits our attorneys covered so far.

FAQs

What are the different theories of jurisprudence?

The different theories of jurisprudence are legal positivism, natural law theory, legal realism, critical legal studies, and feminist jurisprudence.

What is the difference between a theory and a law?

The difference between a theory and a law is that a theory is an idea used to explain how something works. Law is a rule that is used to guide people's behavior.

What are the different types of legal systems?

The different types of legal systems are common law and civil law. Common law is based on precedent, while civil law is based on a written code.

Does a seriously unjust law bind?

No, a seriously unjust law does not bind. This is because they lack legal validity. A law is only valid if it is just.

Conclusion

Understanding various theories of jurisprudence is essential not only for academic study but for practical application in today’s legal landscape.

Each theory—Natural Law, Legal Positivism, or Feminist Jurisprudence—offers unique insights into how laws are interpreted, enforced, and evolved.

In practice, these theories shape how courts approach complex issues, from individual rights to corporate regulations, often influencing rulings on labor rights, gender equality, and environmental protection.

As legal philosophy evolves, future developments may see a stronger integration of interdisciplinary insights, addressing the growing need for a legal system that responds dynamically to societal changes.

Each theory has its strengths and weaknesses. You should choose the theory that best explains how you want the law to work. Schmidt & Clark, LLP can help you through a free consultation session if you seek legal guidance.


References:

  1. https://plato.stanford.edu/entries/natural-law-theories/
  2. https://www.crf-usa.org/bill-of-rights-in-action/bria-22-4-c-st-thomas-aquinas-natural-law-and-the-common-good
  3.  https://iep.utm.edu/legalpos/
  4.  https://us.sagepub.com/sites/default/files/upm-assets/2770_book_item_2770.pdf
  5.  https://www.law.cornell.edu/wex/critical_legal_theory