1. Theories and Concepts of Law

2. The OG Theories
Ancient/Medieval Natural Law: God/Supreme being created the universe according to eternal and unchangeable laws- the closer human laws mirror those natural laws the better society will function
Any laws that are made by the state that contradict human laws therefore should not be followed or obeyed….that’s tricky
Law is closely associated with morality

4. Rationalism
Reason is a spark of the divine, therefore law as its highest purpose is to help citizens use their faculty to reason and to live a good life
Punishment helps too
Parents should care for their children- law?
Each person naturally tries to preserve his or her own life- law?
People should do no harm to others- law?
Assist the poor and the sick or elderly- law?

5. Along Came Hobbes
17th and 18th century Intellectual movement- Age of Reason/Enlightenment
Remove religious revelation or medieval philosophers- just analyze people
The result is known as Positive Law- relationship between citizens and the state

6. Positive Law
Developed following a period of widespread religious, political and social upheaval (English Civil War and the beheading of Charles I)- obviously these issues affected the thinkers of the time
Natural law did not seem to accord the reality of what was happening all around them; the reality was this;
Law was nothing more than what was established by the state and for the good of the state as whole- no moral purpose other than to ensure the survival of the state
Therefore law must be obeyed and anyone who challenges it is to be removed or punished

7. Hobbes and Locke

8. Hobbes v. Locke Hobbes Locke 1588- 1679
State of nature of a human is war and conflict- the strong plundered the weak
Without a common power to hold all in ‘awe’, there is a state of war
Law is made by giving up rights in order to have stability
State of nature of a human is social and co- operation- we all work for ‘our’ benefit
People’s passions can get the best of them and this leads to injustice as the strong take from the weak
Therefore it is advantageous to people to form societies to preserve authority
Therefore people willingly gave into to societies

9. Hobbes vs Locke
Hobbes- men are evil, unknowing if justice- can only have peace if everyone follows the law- people give up their freedom for stability, no such things as natural right
Locke- men are good, know what is rights and wrong- the ruler of a community must not abuse the natural rights of humans, if so, then the people were justified in rebelling
Life, liberty and Property- 1776

10. Contemporary Legal Theories

11. Modern Thought
Modern legal theorists accept the principles of the past philosophers
However, they have challenged many of the views of jurisprudence and added their own contributions
Although there are quite a few modern schools of thought related to law, the following are some of the more prominent ones.

12. Legal Formalism Law should be treated like math or a science
Law is nothing more than a body of rules, nothing more
Judges should only apply the law and have no authority to act outside of it
Judges cannot depart from the law or use discretion in unusual cases
The law is derived from the power of the state- therefore judges should be remote and disinterested- use scientific application of precedent

13. Legal Realism
Rejects the ideas of formalism because the law itself is uncertain, vague and based on a judge’s personal view
Personal prejudices, moods, experiences play a role in the decisions (what a judge had for breakfast, just before you hand an assignment in you PO your teacher)
Judges are in fact the real authors of the law
Judges can shape precedent to support their conclusions

14. Critical legal Studies (CLS)
“The master’s rolls will never dismantle the master’s house” A. Lord- Hey Trudeau, ever hear of this one?
Those with power in society are unlikely to give people with less power the means to make social change
Extends Realism to a critique of the system- laws contain biases of powerful groups and ensures that justice and fairness are in reality just a façade
Feminist Jurisprudence, Laws Based on Economics, Critical Race Theory

15. Feminist Jurisprudence
The legal system upholds political, economic, and social inequality for women
Logic and language of law creates and enforces male values against feminine stereotypes and myths
Even laws that protect women are there as an indication of the view that women are property of men
Rape law was not made to protect a woman but to protect the value of a woman as a commodity
*BIG FREAKIN’ DEAL TODAY

16. Law Based on Economics
The purpose of all law is resource allocation, nothing more.
Determine how resources should be divided and therefore where power can lay
Fair allocation or oppression?
Fiscal functionality is a popular legal perspective- a law forcing people to wear bike helmets would be considered good only if it saved money through fewer people’s use of health care services
Judges should think of economics and not morality or justice when making decisions
Sometimes labeled as “Marxist theory” when combined with CLS

17. Sub-Categories of Contemporary Theories

18. Spirit of the Law
Start with the law as it is written, but judges should address what the purposes and values of the written law are when they apply it
“read between the lines”, speculate what the intent of the lawmakers was when they wrote it

19. Sociological Jurisprudence
Judge the law only in light of the impact on society
The law cannot be separated from society and politics; the law has tremendous influence in a state
Very flexible approach, realist, CLS and a bit of spirit

20. Utilitarian/Popular Morality vs. critical Morality
The voice of the society or community should shape a court’s decision
Justice should reflect the will of the majority, therefore any laws made should impact the majority of the population in a positive way
Critical Morality is the same root- but decisions should look at the will of the majority and address the most reasonable view not just the majority will (think about this very carefully)