Jurisprudence
Legal Theories of Law
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Define in natural law, theorists of natural law, evaluation of natural law, Legal Formalism and utilitrarianism.
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Jurisprudence
Legal Theories of Law
Jurisprudence is the study of law and legal
philosophy
Mainly deals with legal theories of 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
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)
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
Theorists
Frederick Karl von Savigny
Sir Henry Maine (1822-1888)
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)
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-
Roscoe Pound (1870-1964)
Legal Realism
Has much in common with sociological
jurisprudence
- focus on disparity between what the law says it does and what it actually does