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Contemporary Legal Theories

CLN4U

Legal Theories
Generally, there are two views of right and wrong that are reflected in our legal system

You may be familiar with these


Devine Law Natural Law Positive Law

Devine Law
Law is the product of Gods will Unless human laws follow Gods will they are invalid

Natural Law
Right and wrong are concepts that are independent of human experience. Therefore, the laws proclaimed by humans who happen to be in control may not always command obedience. The explanations of how humans perceive these never changing concepts depend on the philosopher that is being studied. This is called natural law.

Natural Law
A set of standards that have existed forever and which should be followed Law and morality are fundamentally intertwined

Positive Law
Right and wrong are what we as a group, culture, nation, or civilization decide they are. The only way to define what is just or right or wrong is to look at what the law says. This is called positive law or legal positivism.

Positive Law
Law is what the lawmakers say it is! Justice is conforming to the laws of soceity
Nazi Germany? Positive law theory does not debate morality

Legal Formalism
Law is a body of rules that describe what ought to be. The letter of the law Law consists of a body of rules that should be applied strictly on what they say Judges can only apply the law as it exists. Not the role of judges to interpret of create laws

Spirit of the Law


Proponents of a greater flexibility in terms of applying and interpreting the law Judges should consider the purpose and values of the law when they apply it Judges need to speculate as to the intent of the lawmakers

Legal Realism
Argues that judges are the authors of law. Law is all about value judgements. The Court, not Parliament, really makes the law. Judges shape law to suit own preconceived notions of justice. Law is vague and left up to the discretion of judges

Consistently applied precedent is not valid and impossible Judges are human and susceptible to bias!

Feminist Jurisprudence
The legal system upholds political, economic and social inequality for women. The government and the law were fields dominated by men and reflect a strong gender bias

Sociological Jurisprudence
That legal decisions are not autonomous and are deeply connected to society Legal decisions about more than law, should be based on the impact they have on society Decisions should take into account the effects on society

Popular Morality
Sees a strong connection between law and society The voice of the community should shape a courts decision in difficult cases Justice should reflect the moral will of the majority The public should guide legal decision making

Critical Legal Studies


No method of lawmaking is truly neutral. Meaning depends on circumstances and human choice. Law is about value choices. Judges should be given discretion to ensure the law achieves justice.

Virtue Jurisprudence
Purpose of law to promote virtuous behaviour by citizens In any legal case, virtue jurisprudence would look for the decision of the court to do something to promote character of the excellence of humans The purpose of law is to educate and act as a moral example of guideline

Law Based on Economics


Purpose of law is resource allocation. Economic impact should be considered, not just morality. Ex: bicycle helmets should be mandatory only if the savings (use of health services) outweighed the cost of enforcement.