Social Theory of Law, lecture 2

Social theory of law
Philosophical Theories
 Philosophical theory in law is called Jurisprudence
 We will look at:
 What is jurisprudence?
 Some of the schools of thought in Western jurisprudence
What is jurisprudence?
“It is the theory and philosophy of law”
“A subdivision of philosophy of law dealing with ethical
questions concerning the administration of justice within a
“The philosophy of law” –
Hames and Ekern Introduction to Law, p4.
Note: The word "philosophy" comes from the Greek φιλοσοφία
(philosophia), which literally means "love of wisdom"
What is the philosophy of law all about?
 Legal philosophers ask questions such as
“what is law”,
“why do we need law”,
“what should the law be?”
 Jurisprudence (the philosophy of law) looks at the
origins of law, the meaning of law and the relationship
between law and morality
 Scholars who are interested in these questions are
referred to by a variety of different names, for example:
Legal philosophers
Legal theorists
Scholars of jurisprudence
Four primary schools of thought
 Western jurisprudence/philosophy of law has 4 main schools of
Natural law
Legal Positivism
Legal Realism
- A reaction to Legal Formalism (so, what is Legal Formalism?)
Critical Legal Studies
Feminist Legal Theory
Critical Race Theory
Other offshoots: Critical Race Feminism, LatCrit (Latino critical
race studies), AsianCrti (Asian-American critical race studies) etc
Natural Law - I
 What is it? The theory that law reflects moral and
unchangeable laws of nature
– Hames & Ekern, p.4
 Natural law is the idea that:
 there are rational objective limits to the power of legislative
 the foundations of law are accessible through human reason,
 it is from these laws of nature that human created laws gain
whatever force they have.
Shiner, "Philosophy of Law", Cambridge Dictionary of Philosophy
Natural Law II – general ideas
 Natural law theorists believe that there are eternal and
unchangeable laws in nature and that man-made laws
must correspond to them as closely as possible.
Since it comes from nature, natural law must be universal
It exists because we are human: its inherent in human beings
It is said to be universal, eternal & unchangeable
If a man-made law does not reflect the moral and
unchangeable laws of nature, then the law is not really a law at
all and it doesn’t need to be obeyed
Historically, natural law has a close relationship with morality
and with the intentions of God but not all natural law
theorists believed in God
Natural law theorists would say: “an unjust law is not law at
all and we don’t need to obey it”
Natural Law III
 Examples of philosophers who adhered to natural law
Aristotle (the “father” of natural law”)
St Thomas Aquinas
 Aristotle in the Rhetoric:
aside from the "particular" laws that each people has set up for itself,
there is a "common" law that is according to nature.
 St Thomas Aquinas:
Natural law is the human "participation" in the eternal law and it is
discovered by reason
Natural Law IV
 We will look mainly at two famous Natural Law theorists,
one classic, one modern:
 Cicero – classic natural law theorist
 John Finnis – modern natural law theorist
 We may also briefly consider natural law and Islam e.g.
Ibn Rushd (in English, known as ‘Averroes’) who is
famous for translating and explaining Aristotle’s writing.
Averroes/Ibn Rushd thought that humans know by
nature of the wrongness of killing and stealing. Humans
know of the 5 ‘maqasid’ or ‘higher intents’ or goals:
religion, life, lineage, intellect and property
Legal Positivism I
 What is it? The validity of law is not related to
morality. If a law is properly formed, then it is a valid
Hames and Ekern, p.4
 Legal Positivism:
 there is no necessary connection between law and morality
 the force of law comes from some basic social facts although
positivists differ on what those facts are.
Soper, "Legal Positivism", Cambridge Dictionary of Philosophy
Legal Positivism II
 Law is law because it is “posited”, that is, laws are
validly made in accordance with socially accepted
 Provided a law is properly formed, in accordance
with the rules recognized in the society concerned, it
is a valid law, regardless of whether it is just
 Consider examples:
Apartheid South Africa
Nazi Germany
Is a “bad” law still a law?
Legal Positivism III
 Famous Legal Positivists include:
 Jeremy Bentham
 John Austin
 H.L.A. Hart
 Austin: Austin's answer to the question "what is
law?”= "commands, backed by threat of sanctions,
from a sovereign, to whom people have a habit of
 Hart: As the chair of jurisprudence at Oxford
University, Hart argued that law is a 'system of
Legal Positivism IV - Hart
 H.L.A. Hart – 1907-1992
 Most famous book: The Concept of Law, 1961
 Primary rules (rules of conduct) and secondary rules
(rules addressed to officials to administer primary rules).
Secondary rules are divided into rules of adjudication (to
resolve legal disputes), rules of change (allowing laws to
be varied) and the rule of recognition (allowing laws to
be identified as valid).*
 The "rule of recognition“ = a customary practice of the
officials (especially judges) that identifies certain acts
and decisions as sources of law.
 Other important legal positivists**
Legal realism
 What is it? Legal realists believe that laws are created
by men and are therefore subject to the pitfalls
created by men
Hames & Ekern, p.5
 Legal realism argues that the real world practice of
law is what determines what law is; the law has the
force that it does because of what legislators, judges,
and executives do with it.
Legal Realism II
 Skeptical in tone, Legal Realism holds that the law
should be understood and determined by the actual
practices of courts, law offices, and police stations,
rather than as the rules and doctrines set forth in
statutes or learned treatises.
 All law is made by human beings and, thus, is subject
to human foibles, frailties and imperfections.
 Examples of Legal Realists:
Justice Oliver Wendell Holmes, Jr.,
Karl Llewellyn
Jerome Frank
Critical Legal Studies
 What is it?
 A younger theory of jurisprudence
 Developed since the 1970s
 Takes a negative view of law
 Says law is contradictory and can be best analyzed as an
expression of the policy goals of the dominant social group
 Critical Legal Studies (CLS) originated out of
American Legal Realism
 No coherent theory but some frequent themes
Critical Legal Studies (CLS) II
 Some common themes:
 legal materials (such as statutes and case law) do not
completely determine the outcome of legal disputes
 all "law is politics”
 tends to serve the interests of the wealthy and the powerful by
protecting them against the demands of the poor and the
subaltern (women, ethnic minorities, the working class,
indigenous peoples, the disabled, homosexuals etc.) for greater
 CLS continues as a diverse collection of schools of thought and
social movements. The CLS community is an extremely broad
group with clusters of critical theorists at law schools
 Legal theorists are interested in the “big” questions about
law, morality and society
This is a complicated area of study and a specialized area
of study
Scholars are seeking answers to questions that perhaps
cannot be properly answered or answered absolutely
You need to have a general understanding that this body
of law exists and of the importance of it
You need to be able to :
1) Understand what scholars have written
2) Form your own opinion about those views
3) Apply them by using examples

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