Of Legal Theory

There are many other normative approaches to legal philosophy, including critical legal studies and libertarian legal theories. By “soft law” I mean quasi-legal instruments that have no legal value, such as resolutions, declarations and non-binding guidelines developed by governments and private organizations. (Drusin, 2017) Legal philosophy topics tend to be more abstract than related topics of political philosophy and applied ethics. For example, while the question of how to correctly interpret the Constitution of the United States belongs to democratic theory (and therefore to political philosophy), the analysis of legal interpretation is a matter of legal philosophy. While the question of whether the death penalty is morally permissible falls under the rubric of applied ethics, the question of whether the imposition of a penalty can be justified is a matter of legal philosophy. Unlike all forms of naturalism, legal positivism is roughly composed of three theoretical obligations: (i) the thesis of the social fact, (ii) the thesis of conventionality and (iii) the thesis of separability. The social fact thesis (also known as the genealogical thesis) asserts that it is necessary that legal validity ultimately be a function of certain types of social facts. The conventionality thesis emphasizes the conventional nature of law and asserts that the social facts that lead to legal validity are decisive because of some kind of social convention. The separability thesis, at the most general level, simply denies the overlapping naturalism thesis; According to the separability thesis, there is no conceptual overlap between the concepts of law and morality. Francisco de Vitoria may have been the first to develop a theory of ius gentium (the rights of peoples) and is therefore an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that these issues should be determined by forms that respect the rights of all, and that the common good of the world should take precedence over the good of a single state.

This meant that relations between States had to move from violent justification to law and justice. Some scholars have confused the standard narrative of the origins of international law, pointing to Hugo Grotius` seminal text De iure belli ac pacis, arguing for Vitoria and later Suárez`s importance as a forerunner and perhaps founder of the field. [26] Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have established international law in the modern sense, but that it has its origins after 1870. [27] Karl Popper founded the theory of critical rationalism. According to Reinhold Zippelius, many advances in law and jurisprudence take place through operations of critical rationalism. He writes: “Let the search for the concept of law, its relationship to reality and justice proceed experimentally, by designing, testing and improving experimentally solutions to problems”, by empirically seeking solutions to problems that harmonize equitably with reality, by projecting, testing and improving solutions). [56] The so-called “outside jurisprudence” deals with an analysis of how the law is structured to promote the interests of white men and exclude women and people of colour. One of the main goals of feminist jurisprudence, for example, is to show how patriarchal assumptions have shaped the content of laws in a wide variety of areas: property, contracts, criminal law, constitutional law, and civil rights. In addition, feminist scholars challenge traditional ideals of judicial decision-making, according to which judges resolve disputes by applying neutral rules impartially and objectively. Feminists, of course, have always questioned whether it is possible for judges to obtain an objective and impartial perspective, but they are now questioning whether the traditional model is desirable. Legal theory aims to provide context for the legal, moral, philosophical and social influences that influence the English legal system.

Historical case law was highlighted in the debate on the draft codification of German law. In his book On the Vocation of Our Time for Legislation and Jurisprudence,[30] Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs, and beliefs of the German people did not contain belief in a code. Historicists believe that law has its origin in society. Some stories have heroes and villains. Others involve a journey, quest, or monster that must be defeated. The law is no exception. Overall, most legal stories are usually aimed at identifying wrongdoers and defending victims` rights, but what if the harm is caused “mutually” or jointly? In other words, what happens if the victims are just as responsible as the perpetrators for their fate? It was Ronald Coase who first proposed this new counter-narrative to the usual account of the victim and the wrongdoer in law. Professor Coase – an obscure middle-aged English economist at the time – researched and wrote a number of principled cases from English Law Reports and other sources in the late 1950s and early 1960s. Coase then used these old cases to create a compelling but controversial legal counternarrative: compelling because Coase`s parable forever changed the way many economists, lawyers, and judges view the law; controversial because it was Coase who first saw damage as a “mutual” problem.

Simply put, whenever one party accuses another party of harming them, it is almost always true that both parties are responsible for the harm – this is the essence of Coase`s romantic and unorthodox parable. What kind of lawyer would you be? What do you know about criminal law? There is a quiz for all legal interests on our website! Despite its declining popularity, legal realism continues to influence a wide range of schools of jurisprudence today, including critical legal studies, feminist legal theory, critical racial theory, sociology of law, law, and economics. [53] The legal and economic movement argues for the value of economic analysis in law, both as a description of the conduct of courts and legislators and as a prescription of how these officials should behave. Legal economists, led by Richard Posner, argue that the content of many areas of common law can be explained by its tendency to maximize preferences: The Scandinavian school of legal realism has held that law can be explained by the empirical methods of social scientists. [51] Prominent right-wing Scandinavian realists include Alf Ross, Axel Hägerström and Karl Olivecrona. Scandinavian legal realists also took a naturalistic approach to law. [52] Teaching in the form of lectures and legal exercises will revolve around these theories and the criticisms associated with them. At university, you will also examine how these legal theories affect the English legal system, past and present. The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes and reached its peak in the 1920s and 30s through the work of Karl Llewellyn, Jerome Frank and Felix Cohen.

Realists have avoided the conceptual approach of positivists and naturalists in favor of empirical analysis intended to show how sitting judges actually decide cases (see Leiter 1998). Realists were deeply skeptical of the growing notion that judicial legislation is a rarity. While realists did not entirely reject the idea that judges can be constrained by rules, they argued that by exercising the discretion of the law, judges create new laws much more often than is generally assumed. According to them, judicial decision is much more often guided by political and moral intuitions about the facts of the case (rather than legal rules) than theories such as positivism and naturalism acknowledge.