Chapter Two American Law and Legal Theory. Copyright © Houghton Mifflin Company. All rights reserved.2 | 2 Legal Theory Jurisprudence –Normative How law

Chapter Two

American Law and Legal Theory

Copyright © Houghton Mifflin Company. All rights reserved. 2 | 2

Legal Theory

• Jurisprudence– Normative

• How law should function• The ideal

– Empirical• How law actually functions• Impact of law on society


Natural Law: An Emphasis on Higher Principles

• Natural Law: An emphasis on higher principles– Ancient and Medieval Philosophers

• Aristotle – laws should comport with and reflect justice

• St. Augustine – laws should be consistent with divine law

• St. Thomas Aquinas – laws in conflict with the higher laws were illegitimate



• Natural law theorists in the Modern Era • Natural law in the Enlightenment• Many early theorists grounded natural law

in religion– Enlightenment era philosophers like

Montesquieu, Hobbes, and Locke, however, saw higher principles derived from reasoning as the ultimate source of law


Natural Law to Positive Law

• Discarding Natural Law for Positive Law– The late 1800s saw a gradual abandonment

of higher law for positive law (or that law passed by governmental actors)

– Future Supreme Court Justice Oliver Wendall Holmes, Jr. was an early and influential critic of natural law

• Pragmatic in achieving society’s goals• Socially useful



• World War II rekindled interest in natural law as scholars questioned how the Holocaust and other atrocities committed by the Nazi regime could be condemned if there were no higher principles to which laws passed by legitimate governmental authorities could be compared. – Lon Fuller and Ronald Dworkin were among

the most prominent of the post-World War II natural law theorists.


Basic Balance

• Lon Fuller and Ronald Dworkin were among the most prominent of the post-World War II natural law theorists.– Law must respect individual’s inherent rights

when establishing social order


Legal Positivism

• Focusing on the Written Law – Coke and Blackstone

• The earliest proponents of written law• Legislatures pass statutes, laws• Judges write opinions • Value of precedent

– Create certainty and uniformity


Legal Positivism: Focusing on the Written Law

• Belief that laws were made in response to societal needs and goals

• Not to accord with some higher principle• Grounded in traditions, practices of the

community• Example: Right to Die


Legal Positivism: Focusing on the Written Law

• Jeremy Bentham – Code of law based on “greatest happiness principle.” – Utilitarian principle argued that there were no inalienable rights

but only rights recognized by the government through law which should, in turn, benefit the greatest number of people.

• John Austin – The only “real” laws are those that enable a gov’t to punish those

who failed to obey those laws.• H.L.A. Hart

– Valid laws need not be grounded in morality or higher principles – Valid law passed by duly certified & publicly recognized authority


Sociological Jurisprudence

• The Progressive Movement in U.S.– Law used to promote social welfare and the

public good• New York’s regulation of bakers’ working

conditions and work hours • Supreme Court case of Lochner v. New York


Sociological Jurisprudence

• Roscoe Pound and Benjamin Cardozo– Consider practical effects of law on people– Needed to be taken into account by both

judges and legislators– Role of judges to second guess legislators


Empirical Theory

• How Law Functions – Legal Realism– Law and Economics– Critical Legal Studies– Feminist Legal Theory

• Formal Equality or Liberal Feminism• Relational Feminism• Dominance/Radical Feminism• Critical Race Feminism

– Critical Race Theory– Law and Postmodernism

Documents

Chapter Two American Law and Legal Theory. Copyright © Houghton Mifflin Company. All rights reserved.2 | 2 Legal Theory Jurisprudence –Normative How law