Jurisprudence

1. Jurisprudence Legal Theories of Law

2. 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 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”

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

4. 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

5. 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

6. 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

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

8. 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

9. 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

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

11. 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

12. 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

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

14. 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”

15. 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.

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

17. 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

18. 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

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

20. 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