Law Schools and Philosophies PDF

There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called jurisprudence, and the two main schools are legal positivism and natural law. 1\. Legal Positivism: Law as Sovereign Command As legal philosopher John Austin concisely put it, "Law i...

There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called jurisprudence, and the two main schools are legal positivism and natural law. 1\. Legal Positivism: Law as Sovereign Command As legal philosopher John Austin concisely put it, "Law is the command of a sovereign." Law is only law, in other words, if it comes from a recognised authority and can be enforced by that authority, or sovereign \- such as a king, a president, or a dictator \- who has power within a defined area or territory. Posi tivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of laws? We could examine existing statutes \- executive orders, regulations, or judicia l decisions \- in a fairly precise way to find out what the law says. For example, we could look at the posted number of passengers in a commercial bus according to FRSC regulation on most Nigerian highways and conclude that the "correct" or "right" number is no more than fourteen passengers in a Homa bus. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that fourteen passengers are generally allowed by road Marshals, but that occasionally some one gets ticketed for carrying the fourteen in some States. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule itself says, is sometimes known as the "positivist" school of legal th ought. The second approach \- which relies on social context and the actual behavior of the principal actors who enforce the law \- is akin to the "legal realist" school of thought. Positivism has its limits and its critics. Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life \- threatening and women doctors are few and far between. Suppose also that this command is carried out, just because i t is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law's impact, a citizen would have to flee t he country entirely. During the Taliban rule in Afghanistan, from which this example is drawn, many did flee. The positive \- law school of legal thought would recognise the lawmaker's command as legitimate; questions about the law's morality or immorality wo uld not be important. In contrast, the natural \- law school of legal thought would refuse to recognise the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a ci tizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law. 2. The Natural Law: This school of thought emphasises t hat law should be based on a universal moral order. Natural law was "discovered" by humans through the use of reason and by choosing between that which is good and that which is evil. Here is the definition of natural law according to the Cambridge Diction ary of Philosophy (1999) : "Natural law, also called the law of nature in moral and political philosophy, is an objective norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler, but binding on all people alike and usually understood as involving a superhuman legislator." Other Schools of Legal Thought The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important t han moral arguments. The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or moder nised in order to remain current. The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an exist ing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context. The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The "Critics" believe that the social order (and the law) is dominated by those with power, wealth, and influence. Some Critics are clearly influenced by the economist Karl Marx and also by distributive justice theory. The CLS School believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in society. Law is politics and is thus not neutral or value \- free. The CLS movement would use the law to overturn the hierarchical structures of domination in the modern society. In \-