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Summary of the Key Findings
- There are two types of laws: the ones that humans make (positive laws) and the ones that are made by nature (natural laws)
- Marxists believe that private ownership of property is the key factor in developing law and government institutions
- The realist theory dictates that the law is what the judge decides in court
6 Major Legal Theories
There are three types of legal philosophy: analytic jurisprudence, normative jurisprudence, and critical law theories. Analytic jurisprudence is the process of figuring out 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 are concerned with 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. Natural Law Theory
Natural law theory believes that there is a higher law created by nature and applies to all human beings . This legal theory was first proposed by the Greek philosopher Aristotle.
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 and not through 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
"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
Aquinas believed that the first two laws (the law of nature and reason) was objective and could be discovered through reason . The other two laws (the positive divine law and the positive civil law) were created by human beings and were not necessarily objectively true.
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 argue that natural law legal theory is too vague to be helpful in specific legal situations.
2. Legal Positivism Theory
Legal positivism believes that there is no higher law than the law created by humans . This legal theory was first proposed by the English philosopher Jeremy Bentham. Bentham believed that all laws are made by humans and are not based on any objective morality. He also argued that the law's only purpose is to maintain order and social stability.
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.
According to this legal theory, laws are different 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.
There are two types of positive law: strong and weak. Strong positive law is when you believe that the only thing that matters about the law is that the government made it. Weak legal positivism is when you think a law can be moral even if the government did not make it.
Some people think that positive law is a good theory because it is simple, and it does not require you to use morality to figure out if a law is good or bad. Critics of this theory argue that it is too simple and does not consider the fact that laws can be unjust concrete dimensions of legal reasoning.
Sanctions are a way to get people to obey the law. People usually obey the law because they want to be rewarded (for example, by getting what they expect), but some obey the law even if they don't get a reward.
3. Marxist Law Theory
Marxist 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.
Marx believed that the law is a tool used by the ruling class to oppress the working class. He argued that the law is not objective or neutral but is biased in favor of the ruling class . Marx believed that the only way to achieve justice is to overthrow the ruling class and create a classless society.
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 the fact that some laws are necessary to maintain order in society.
4. Realist Law Theory
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 which 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.
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 constantly being decided by a judicial decision in court, which can change the law and legal practice.
"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
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.
5. Critical Legal Studies
The CLS movement tries to expand the realism of law into a critique of mainstream jurisprudence from a Marxist perspective . 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.
The CLS movement believes that the law is not neutral. They say that the law is used to support 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 that their theory does not consider that some laws are necessary to maintain order in society.
6. Feminist Jurisprudence
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.
"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
In my opinion, I think that the most important thing to remember is that the law is not neutral. It isn't very objective against women. I think feminist jurisprudence is a good way to understand how the law affects women. However, critics argue that it is too focused on gender and does not consider other important factors.
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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.
In conclusion, there are many different theories of jurisprudence. These theories try to explain how the law works and how it affects people, and as law students, you need to understand each clearly.
Each theory has its strengths and weaknesses. You should choose the theory that you think best explains the way that you want the law to work. Schmidt & Clark can help you through a free consultation session if you are looking for some legal guidance.