Professional Documents
Culture Documents
LARGO)
NOTES
THEORY OF LAW AND LEGAL THEORIES
Theory of Law- talks about law and justification of law
Legal Theories- talks about legal reasoning and thinking -meaning rather concept
*Ours is a government of laws and not of men. -classic idea of Republicanism
*"Preamble ".....and to secure to ourselves the blessing of democracy under the rule of
law and regime of truth, justice, and freedom.
*Common Law vs. Civil Law
*International Law as part of the Law of the land.
*Family Law, Criminal Law, Commercial Law
*Foreign Laws vs. Domestic Law
*Law of the case
*"unless otherwise provided for by Law"
*"unless otherwise provided for by Law"
*Ignorance of the Law excuses no one from compliance therewith.
THEORY OF LAW
WHAT IS LAW?
ROMAN SANCHEZ:
-Law in general "the science of moral rules, founded on the rational nature of man,
which govern his free activity, for the realization of the individual and social ends of a
nature both demandable and reciprocal.
-Law in its specific sense "a rule of conduct, just, obligatory, promulgated, by the
competent authority for the common good of a people or nation, which constitutes an
obligatory rule of conduct for all its members.
OLIVER WENDELL HOLMES JR. ("THE PATH OF THE LAW",10 HARVARD LAW
REVIEW 457, 1897)
-Law is "a body of dogma or systematized prediction".
-"The prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean, by the law".
-The Bad Man Theory(The Law is what the man thinks)
-The right of man in moral sense may not be the same are equal in Law.
RONALD DWORKIN
Major Legal Theories
A.Natural Law Theory
B.Legal Positivism
C.Legal Realism > Legal Scepticism
D. Legal Formalism
E. Critical Legal Studies (CLS)
B.LEGAL POSITIVISM
"The fact that a policy would be just , wise, efficient, or prudent is never sufficient
reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
inefficient or imprudent is never sufficient reason for doubting it.
*American Legal Realists argue that, unlike classical legal theorists, legal reasoning is
not independent from moral and political considerations.
Holmes believes that lawyers and judges are not logicians and mathematicians. "The
life of the law has not been logic: it has been experience." Necessities of the time, the
prevalent moral and political theories, intuitions of public policy, and even the prejudices
which judges share with their fellow men, better determine the rules by which should be
governed.
*Legal Realists are often criticized for favoring "Judicial Activism", where judges base
their decisions on their personal and political considerations rather than the law.
D. LEGAL FORMALISM
*A positivist theory of law, it focuses on the role of judges, that they must be constrained
in interpreting and applying the law, It is a theory of legal justification.
*For a formalist, a law is already the product of normative and policy consideration in
the formation of the law. Hence, a judge should not say what the law should be but
should confine itself to what the law is.
*Binder on CLS:
"The indeterminacy of interests, as developed by critical legal studies,
undermines the instrumental conception of society that has informed much policy
analysis across the political spectrum. Although the indeterminacy critique of liberal
rights theory generated more attention and controversy, the indeterminacy critique to
instrumentalism was critical legal studies' more original and significant philosophical
claim."
-Anarchist also believe that "each person has a right not to be bound by the state's
commands." (Simmons; Green)
-The philosophical anarchist then argues that only if a person consents to being bound
to the political authority can the person actually be bound. And because it is impossible
to obtain every consent, no state is legitimate and perhaps no state can ever be
legitimate. (does not have the right to rule)
-But, iit does not suggest that one must never obey the state.
INSTRUMENTALIST THEORY
-"authoritative directives should be based on reasons which already independently
apply to the subjects of the directives and are relevant to their action in the
circumstances covered by the directive" (Raz, 1986)
-According to Raz, what should guide government decisions about what commands to
give subjects is what the subjects already have reason to do.
-A law that takes the place of reason becomes legitimate and binding.
DEMOCRATIC THEORIES
-when there are disagreements among persons about how to structure their shared
world together and it is important to structure that world together, the way to choose the
shares aspects of society is by means of a decision making process that is fair to the
interests and opinions of each of the members.
-when an outcome is democratically chosen and some people disagree with the
outcome, as some inevitably will, they still have a duty to go along with the decision
because otherwise they would be treating the others unfairly
-"majority rules"
HABERMA'S THEORY
-THE ONLY LAW THAT COUNTS AS LEGITIMATE IS ONE THAT COULD BE
RATIONALLY ACCEPTED BY ALL CITIZENS IN A DISCURSIVE PROCESS OF
OPINION-AND WILL-FORMATION. ("procedural conditions for rational will
formation")
-In analyzing legitimacy of the law, Habermas first talked about a "system of rights" that
mediates two related tensions: between private and public autonomy, and between
basic rights and popular sovereignty. But theses rights must be justified and made
legitimate through a "legislative procedure" that is based on the "principle of popular
sovereignty."