Legal Theories: Overview

• Study notes on various Legal Theories:

Natural Law vs Legal Positivism

• Natural Law regards law as stemming from universal principles.
• Key figures in Natural Law include Aristotle, Cicero, and Aquinas.
• Legal Positivism determines the validity of a law by its source.

Utilitarianism vs Categorical Imperative

• Utilitarianism involves weighing costs and benefits (e.g., no knee surgery for a 90-year-old)
• Utilitarianism aims for "the greatest good for the greatest number."
• The Categorical Imperative suggests treating everyone equally (e.g., knee surgery for a 90-year-old).

Evolutionary School & Functionalism

• The Eu School sees law as evolving with society and reflecting values and customs.
• Functionalism views law as maintaining social stability by fulfilling key functions.
• Evolutionary School and Functionalism both see law as evolving to meet societal needs while maintaining order and stability.

Karl Marx

• Critique of Capitalism
• Bourgeoisie
• Owns workers and believe that the law is fair
• Proletariat
• The workers

Max Weber

• Charismatic authority involves someone with extraordinary qualities.
• Charismatic leader is followed because of "Goo."
• Traditional authority is based on a person's status.
• Rational-legal authority involves getting power through procedures, with decisions made based on rules.

Weber Legal Thinking

• Weber divided legal thinking into:
  • Formal irrational.
  • Substantive irrational.
  • Formal rational
  • Substantive rationa

Durkheim

• Mechanical societies feature shared attitudes, beliefs, and values, with harsh punishments.
• Organic societies involve interdependence and no harsh punishments.
• Societies evolve from mechanical to organic.

Legal Realism vs Traditional Notions

• Legal realism focuses on how the law functions rather than what is written.
• Focus is on "law in action," e.g., speed limit rules.

Pound’s Social Jurisprudence

• Laws should be assessed based on societal impact, in order to improve lives through social engineering.

Functionalism

• Concerned with how law functions in society
• Functions of law include:
  • Settling disputes.
  • Social control.
  • Creating norms and values.
  • Recording transactions.
  • Announcing rules.
  • Intentionally provides fair adjudication.
• Comte viewed society as an organism with interdependent parts.
• Durkheim viewed the role of crime is reinforcing social values.
• Merton differentiated between latent (unintentional) and manifest (intentional functions).
• Parsons saw adaptation, goal attainment, integration, and latency as key for societal survival.

Donald Black’s Framework

• Black assesses how the law is measured (laws passed, regulations issued, complaints filed, calls for police, prosecutions initiated, people convicted)
• Black defines law as the quantity of law and the type of conduct regulated by law.
• Direction of Law (Up, Down, Hozrizontal), and Styles of Law (Penal, Compensatory, Therapeutic, Conciliatory)

Libertarianism

• Government has limited roles
  • Fighting crime.
  • Protecting private property.
  • Enforcing contracts.
  • National defense.
• Includes other responsibilities like education, healthcare in the private sector.

Paternalism

• Paternalism opposes laws preventing self-harm.
• Rejects bans on choices like drugs or gambling.
• Advocates for less taxes in the private sector and more public funding.

Economic Approach

• Two Branches
  • One shows rules align with economic principles.
  • The other advocates to increase efficiency.
• The 80/20 rule: 20% of causes create 80% of effects, and 20% of users consume 80% of bandwidth.

Critical Legal Studies, Race Theory, Feminist Jurisprudence

• CLS is influenced by politics and ideology.
• CRT conserves systemic racism and white privilege.
• Feminist Jurisprudence describes how law subordinates women and reinforces gender inequality, and advocates for reform.

Humanities

• Provides critical insights into the law by contextualizing it within history.