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As a theory in law, Jurisprudence involves varying philosophical perceptions about the purposes of law, the legal system and the institutions developed to regulate law. In an effort to understand the basic, fundamental reasoning for law and of legal systems, legal scholars have developed theoretical frameworks within the umbra of jurisprudence. For the purposes of this paper, jurisprudential philosophies will include natural law, legal positivism and constructivist theories of law.
Aristotle, credited as the "father" of natural law, suggested that there exists a natural law, a natural justice in law. Advocating a "golden mean," Aristotle describes the origin, the genesis of morality and a method of virtuous living to achieve happiness. Such hapiness is not generated or maintained by possession of material wealth or by pursuit of carnal pleasures. Instead, according to Aristotle, happiness is a noble pursuit that enables people to live their lives well, despite inevitable hardships and struggles in life. In this way, Aristotle believed that people should live their lives for the good of the group; toward a collective well-being that places the interests of the society above that of the individual. Such ethical living is the aim of all legal proclamations.
With two natural law theories governing differing components of laws, it is difficult to suggest that one precedes the other. However, while the natural law theory of morality, or what is right vs. what is wrong in a general sense, natural moral law is concerned with the coherence of individual behaviors (nmsu, 2010). However, legal positivism, on the other hand, is a theoretical understanding of law that negates the morality of humans; instead, legal positivism addresses the validity of law as constructed, as legislated and promulgated by sovereign nations; it does not involve morality or "good living" as a legally valid precept to jurisprudence.
Aristotle believed that the term "justice" has reference to two separate, yet distinct legal ideas; that of a general type of justice and that of a specific type of justice (Irwin, 2009). The general type of justice Aristotle refers to would include a justice that is morally obligatory to achieve a great good; a social justice. The specific justice Aristotle refers to would include the legally binding, not necessarily socially obligatory, actions by people.
While current jurisprudential understandings and theories focus on the foundations of a natural law, as well as the laws of nations, there seems to be a lacking consensus among legal scholars about the problems, issues and shortcomings of legal systems and those that are inherent to laws themselves as well as those problems and issues that exist from law as a socially mechanism in juxtaposition to the greater political and social contexts in which laws exist. While consensus is lacking among all legal scholars and theologians, there are four main philosphocal approaches, schools of legal philosophies that have emerged in the last century in an effort to address the shortcomings of laws and legal systems; these schools of legal philosophies include that of natural law, of legal positivism, of legal realism, and of critical legal studies.
Natural theory of law
A natural theory of law provides a legitimate function in society. Conversely, laws that contradict the purposes of law, laws that are inherently unjust are not laws at all; St. Augustine suggested that "lex injustia non-est lex;" that laws that are unjust are not binding and have no authority. Hence, any positive law that is in direct conflict with natural law is necessarily against the common good of man, and of justice. For example, laws that involve the right of landowners to possess and maintain slaves is not really a law at all; though it is supported and maintained via a sovereign nation with the full consequences of laws.
According to legal positivism, law is dependent upon social norms created by legislative bodies (people) in accordance with socially desirable outcomes (IEP, 2010). Thus, the justification of law, according to legal positivism, is that it is enforceable by law enforcement because it is legislated and codified. Hence, there is a significant departure from prior constructions of legal theories involving divine rights or natural, morally obligatory orders.
Social constructions of law
With primary influences in ancient political philosophies, legal positivism essentially holds that law is a construction of social influences. Legal positivism theorizes that the connection between morality and legal proclamations are not important; rather, legal positivism is concerned only with what legislation, what codified laws, are present. Instead, legal positivism suggests that for a law to be binding, it must be decreed, written, or legislated according to the common practice among nations. In this way, unlike natural law, a grossly unjust law is as binding as any other law; simply because it is enforced with the binding authority of government.
The Separation Doctrine
Hart (1957) observes that legal positivism is subject to a separation thesis; one that bifurcates morality and the full force of law. In other words, a legal right is not predicated on the presence of a moral obligation; the legal right to perform an act does not dictate that a moral obligation exists to perform that act. Likewise, having a moral justification to do or not do an act is not analogous to having a legal justification to do or to not do an act.
Wong (2007) notes that "while the existence of a law is one thing; it's merit or demerit another" legal positivists staunchly hold all legislated laws as valid, binding laws; even those that are abhorrent, destructive and against the common good of the citizenry. Thus, what laws and legal restrictions are codified are those that are in vogue; those that are contemporary and subjectively interpreted as socially necessary, legislatively created laws and rules for all in society to obey. It does not matter to the strict legal positivist camp that a particular law is objectively abhorrent; the law is simply the law; notwithstanding interpretations, feelings or even consensus in society. That a particular law be deemed or perceived as less effective, more intrusive or even discriminatory is not of concern; the issue is that a law is created by a legislative body, or a ruler, or some other form of law making authority, and that when such a law is violated, a penalty is provided. Thus, law is a socially constructed, legislatively authorized, legally enforceable rule for which a consequence exists.
Legislation as law
Legal positivism suggests that the very existence and legal conscriptions of law are essentially dependent upon social issues and not some perception of right and wrong. Austin (1832, pg. 157) writes that "Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." In other words, legal theorists, Austin believes, should only concern themselves with the legislative function and applications of laws, and avoid the inevitable pitfalls that arise when attempting to coordinate a legislated law with some moral code. In this way, a sovereign nation can develop, implement and enforce laws notwithstanding the moral ideals of others; countries should not be concerned with notions of justice, ideas of democratic objectives or some divine precept that governs man. Instead, positivists believe that the full force of a law, and that of the authority of a government to regulate such laws, is dependent only on the accepted practice of, for example, codification; that which is written and held to be a law, is a law.
Recognizing that limitations in legal positivism can result in great travesties of justice, the school of legal realism sought to identify these shortcomings and posit that, as law is manmade, law is inherently rife with all of the imperfections and idiosyncrasies of man. While the legal realism theorists, like their legal theorist predecessors, rarely achieved consensus, some commonalities emerge in the legal realistic school. One such widely accepted tenet was that law had a type of indeterminacy; that the laws delineated in cases, in statutes and in law books failed to resolve legal disputes. In other words, because man is involved in the law, the law is subject to the whims of man and does not reflect an ultimate or just resolution.
Another important recognition in the legal realism school is that there are many different, eclectic, interdisciplinary modes of law; while some may be interested in or focus on a feminist approach to law, others might gravitate toward a sociological approach; others yet might align with an anthropological study of law. Thus, the legal researchers "lens" is subject to scrutiny and can influence perceptions and understanding of the law. While most scholars in the legal realist school believed that law should serve as an instrument to achieve a desired social outcome, many recognized that there were many competing, and antagonistic interests in society that prevent and inhibit such legally derived society-based outcomes. In simple terms then, legal realists seem more like legal pessimists; they believe roundly that law is what elected officials and…[continue]
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