Table of Contents Section 1: In this section you will Reflect on your own experiences with comparative thinking strategies.
Explain why natural law relates to the rights that the founders of the US political-legal system found important. Describe legal positivism and explain how it differs from natural law. Differentiate critical legal studies and ecofeminist legal perspectives from both natural law and legal positivist perspectives.
There are different schools or philosophies concerning what law is all about. Philosophy of law is also called jurisprudence The philosophy of law. There are many philosophies of law and thus many different jurisprudential views. Although there are others see Section 1. Sovereignty is what sovereigns exercise.
This usually means the power to make and enforce laws within the nation-state. Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile.
But what are we to make of the social phenomena of laws? We could examine existing statutes Legislative directives, having the form of general rules that are to be followed in the nation-state or its subdivisions. Statutes are controlling over judicial decisions or common law, but are inferior to and controlled by constitutional law.
Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone.
Either approach is empirical, even if not rigorously scientific. Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children below a certain age be killed. Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life-threatening and women doctors are few and far between.
Suppose also that this command is carried out, just because it is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out.
During the Taliban rule in Afghanistan, from which this example is drawn, many did flee. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law.
If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.
Natural Law The natural-law school of thought emphasizes that law should be based on a universal moral order. Here is the definition of natural law according to the Cambridge Dictionary of Philosophy: The US Declaration of Independence embodies a natural-law philosophy.
The following short extract should provide some sense of the deep beliefs in natural law held by those who signed the document. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. Government only by consent of the governed is a natural outgrowth of this view. In studying law, we can most effectively learn by just looking at what the written law says, or by examining how it has been applied.
In response, natural-law thinkers would argue that if we care about justice, every law and every legal system must be held accountable to some higher standard, however hard that may be to define. There are always difficult issues of interpretation and decision, which is why courts will resolve differing views.
Setting aside for the moment questions about the equality of women, or that of slaves, who were not counted as men with equal rights at the time of the declaration—can the statement be empirically proven, or is it simply a matter of a priori knowledge?
In this book, we will focus mostly on the law as it is, but not without also raising questions about what it could or should be.
Other Schools of Legal Thought The historical school of law believes that societies should base their legal decisions today on the examples of the past.
Precedent would be more important than moral arguments. The legal realist school flourished in the s and s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current.
The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes.
Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context.The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare .
Legal positivism is a school of thought of analytical jurisprudence, by contrast, Germanic legal positivism was founded on the transcendental idealism of the German philosopher, Natural law; Philosophy of law; Positive law Rule according to higher law;.
The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken.
Natural law theory like legal positivism has appeared in a variety of forms and in many guises. One of the most elaborate statements of natural law theory can be found in Aquinas who distinguished four types of law: eternal, divine, natural, and man-made.
So. THEORIES OF LAW Natural Law, Legal Positivism, The Morality of Law Dworkin's "Third Theory of Law" Legal Realism and Critical Legal Studies 1. The Twilight Zone of Positive and Natural Law Helen Silving * Member, New York Bar; Research Associate in Law, Harvard Law School.
CALIFORNIA LAW REVIEW only in two respects. Legal history can evaluate the immeasurable influence by its contrast to positive law. Thus cast, the problem would seem to invite a definition of positive law.