1. Jurisprudence
Legal Theories of Law

2. Jurisprudence is the study of law and legal philosophy
Mainly deals with legal theories of law

3. Natural Law This is the oldest theory of law, dating to ancient times.
Essential arguments:
There is an ultimate “law” or moral system which transcends (go beyond) humanly created law
This law is eternal and unchanging
Positive (written) law is said to be an imperfect reflection of the natural law
The natural law is understood to be a standard from which to evaluate positive law
When natural and positive law do not correspond, positive law is said to be an “unjust law”

4. Key Natural Law Theorists
Thomas Aquinas ( )
Aristotle ( BC)
Cicero ( BC)

5. Two “Schools” of Natural Law
Theological School
Holds that created universe consists not only of material substance, but also a moral order
God is the author of this moral order, or “natural law”
Secular School
Product of Englightment
Maintained the idea of transcendent, eternal moral law
Rejected God as creator of law; rather, moral law is simply part of human nature
Moral principles are understood through development of reason

6. Evaluation of Natural Law
Troublesome issues:
How can we verify these moral principles?
How can we know the nature of human nature?
How do we account for wide variation in moral precepts held by different cultures and across time?
Has been argued that natural law theory is inherently conservative
Responses from a natural law theorist
Moral principles are not subject to positivistic empirical verification
This does not mean that such a reality does not exist; merely that we are not using the right tools
Wide variation is accounted for by fact that all positive law and custom itself is an imperfect reflection of natural law
Can be argued that natural law actually facilitates radical change

7. Legal Formalism Focused exclusively on the positive (formal) law
Essentially regards the law as “amoral”
Law is seen as a closed system of rules
Explanation for how or why rules exist is framed within the context of the legal system itself
Legal education today is primarily influenced by legal formalism

8. Key Legal Formalists
John Austin ( )
Hans Kelsen ( )

9. Evaluation of Legal Formalism
Troubling issues:
No legal system exists in a vacuum; hence cannot fully understand law by focusing only on the law itself
Cannot account for legal change
Inherently conservative
Response from a legal formalist
Legal formalism is a practical approach to law
Resulted in consistency in sentencing and other legal decisions

10. Cultural and Historical Schools
Marks the beginning of the recognition of wider social forces operative in law
Law is explained in the context of immediate cultural and historical milieu of specific legal systems
Typically, law is explained as a formalization of a “common conscience”, which itself developed out of custom and habit
Historically, law and legal evolution reflects an evolution taking place in the larger society

11. Key Cultural and Historical Theorists
Frederick Karl von Savigny ( )
Sir Henry Maine ( )

12. Evaluation of Cultural and Historical Schools
Troublesome issues
Is there such a thing as a “common conscience” (especially in modern societies)?
If so, does it shape law or is it shaped by law?
Response from a cultural/historical theorist
This is the first school that seeks to look to social and historical milieu to understand law (give us credit!)
This school is first to attempt to account for change in the positive law

13. Utilitarianism Here, law is seen as a “dependent” variable
The question is, “How does the law impact society?”
Utilitarians premise their ideas on the commitment to “the greatest good (happiness) for the greatest number
See law (especially criminal law) as inherently evil (or at least restrictive)
Hence only justification for criminal law is that it thwarts a greater evil

14. Key Utilitarians Jeremy Bentham (1748-1832)
Rudolf von Ihering ( )

15. Evaluation of Utilitarianism
Troubling Issues
Is “the greatest good for the greatest number” a proper moral basis upon which to formulate a system of law?
This premise assumes that humans are rational decision-making creatures. Can we assume this?
Response from a Utilitarian
This approach allows us to quantify and measure effectiveness of law--by quantifying “good” and “number”

16. Sociological Jurisprudence
Sociological jurisprudence focuses on two primary questions:
What is the relationship between the “law in action” or “living law” and the “law on the books” or “positive law?”
What are the social dynamics which shape and are reflected in positive law?
Argue that positive law should reflect the living law.
Also interested in what the positive law “says it does” and what it actually does.

17. Key Figures in Sociological Jurisprudence
Eugen Ehrlich (
Roscoe Pound ( )

18. Evaluation of Sociological Jurisprudence
Problematic Issues
What are the “living laws” which positive law should reflect?
Response from a sociological jurisprudent theorist
This is the first time legal theorists are thinking about the importance of considering “living law” in shaping positive law

19. Legal Realism Has much in common with sociological jurisprudence
focus on disparity between what the law says it does and what it actually does
Legal realists are primarily concerned with the “law in action” as their focus of study
Suggest that judges “make law” rather than “find it” in making decisions
Tend to focus primarily on the trial courts

20. Key Legal Realists Oliver Wendell Holmes (1841-1935)
Karl Llewellyn ( )
Jerome Frank ( )

21. Evaluation of Legal Realism
Troublesome points
Depicts an image of the courts as more fluid than they really are--there are parameters within which judges must operate
Response from a legal realist
The human element in the court process has heretofore been ignored
Observation of actual courtroom behavior reveals that the legal process is indeed much more fluid than most recognize