THE FIRST SCHOOL OF THOUGHT WE SHALL EXAMINE IS THE MARXIAN SCHOOL OF
THOUGHT.
THE MARXIAN SCHOOL OF THOUGH.
HISTORY OF MARXISM.
Karl Marx and Friedrich Engels.
Karl Heinrich Marx (5 May 1818 – 14 March 1883) was a German philosopher, political
economist, and socialist revolutionary, who addressed the matters of alienation and
exploitation of the working class, the capitalist mode of production, and historical
materialism. He is famous for analyzing history in terms of class struggle, summarized in the
initial line introducing the communist Manifesto: "The history of all hitherto existing society
is the history of class struggles". His ideas were influential in his time, and it was greatly
expanded by the successful Bolshevik October Revolution of 1917 in Imperial Russia.
Friedrich Engels (28 November 1820 – 5 August 1895) was a German political
philosopher and Karl Marx's co-developer of communist theory. Marx and Engels met in
September 1844; discovering that they shared like views of philosophy and socialism, they
collaborated and wrote works such as Die heilige Familie (The Holy Family),the communist
manifesto, principles of communism. After Karl Marx's death in 1883.
Marxism is a worldview method of societal analysis that focuses on class relations and
societal conflict, that uses a materialist interpretation of historical development, and
a dialectical view of social transformation. Marxist methodology uses economic and
sociopolitical inquiry and applies that to the analysis and critique of the development
of capitalism and the role of class struggle in systemic economic change. In the mid-to-late
19th century, the intellectual tenets of Marxism were inspired by two German philosopher
: Karl Marx and Friedrich Engels. Marxist analyses and methodologies have influenced
multiple political ideologies and social movements. Marxism encompasses an economic
theory, a sociological theory, a philosophical method, and a revolutionary view of social
change.
DEFINING MARXISM:
There is no single definitive Marxist theory; Marxist analysis has been applied to diverse
subjects and has been misconceived and modified during the course of its development,
resulting in numerous and sometimes contradictory theories that fall under the rubric of
Marxism or Marxian analysis.
Marxism builds on a materialist understanding of societal development, taking as its starting
point the necessary economic activities required by human society to provide for its
material needs. The form of economic organization or mode of production is understood to
be the basis from which the majority of other social phenomena including social relations,
political and legal systems, morality and ideology arise (or at the least by which they are
directly influenced). These social relations form the superstructure, for which the economic
system forms the base. As the forces of production (most notably technology) improve,
existing forms of social organization become inefficient and stifle further progress. These
inefficiencies manifest themselves as social contradictions in the form of class struggle.
According to Marxist analysis, class conflict within capitalism arises due to intensifying
contradictions between highly productive mechanized and socialized production performed
by the proletariat, and private ownership and private appropriation of the surplus
product in the form of surplus value (profit) by a small minority of private owners called
the bourgeoisie. As the contradiction becomes apparent to the proletariat, social unrest
between the two antagonistic classes intensifies, culminating in a social revolution. The
eventual long-term outcome of this revolution would be the establishment of socialism, a
socioeconomic system based on cooperative ownership of the means of
production, distribution based on one's contribution, and production organized directly for
use. Karl Marx hypothesized that, as the productive forces and technology continued to
advance, socialism would eventually give way to a communist stage of social development.
Communism would be a classless, stateless, humane society erected on common
ownership and the principle of "From each according to his ability, to each according to his
needs".
Marxism has developed into different branches and schools of thought. Different schools
place a greater emphasis on certain aspects of classical Marxism while de-emphasizing or
rejecting other aspects of Marxism, sometimes combining Marxist analysis with nonMarxian concepts. Some variants of Marxism primarily focus on one aspect of Marxism as
the determining force in social development, such as the mode of production, class, powerrelationships or property ownership, while arguing other aspects are less important or
current research makes them irrelevant. Despite sharing similar premises, different schools
of Marxism might reach contradictory conclusions from each other. Furthermore, different
variants of Marxism apply Marxist analysis to study different aspects of society (e.g. mass
culture, economic crises, or feminism).
These theoretical differences have led various socialist and communist parties and political
movements to embrace different political strategies for attaining socialism and advocate
different programs and policies from each other.
Marxist understandings of history and of society have been adopted by academics in the
disciplines of archaeology and anthropology, media studies, political
science, theater, history, sociology, art history and art theory, cultural
studies, education, economics, geography, literary criticism, aesthetics, critical psychology,
and philosophy. Capitalism (according to Marxist theory) can no longer sustain the living
standards of the population due to its need to compensate for falling rates of profit by
driving down wages, cutting social benefits and pursuing military aggression.
The socialist system would succeed capitalism as humanity's mode of production through
workers' revolution. According to Marxism, especially arising from Crisis theory, Socialism is
a historical necessity (but not inevitability).
In a socialist society private property in the means of production would be superseded by
co-operative ownership. A socialist economy would not base production on the creation of
private profits, but would instead base production and economic activity on the criteria of
satisfying human needs – that is, production would be carried out directly for use. As Engels
observed: "Then the capitalist mode of appropriation in which the product enslaves first the
producer, and then appropriator, is replaced by the mode of appropriation of the product
that is based upon the nature of the modern means of production; upon the one hand,
direct social appropriation, as means to the maintenance and extension of production_ on
the other, direct individual appropriation, as means of subsistence and of enjoyment."'.
As Friedrich Engels clarified: "The history of all hitherto existing society is the history of class
struggles. Freeman and slave, patrician and plebeian, lord and serf, guild-master and
journeyman, in a word, oppressor and oppressed, stood in constant opposition to one
another, carried on uninterrupted, now hidden, now open fight, a fight that each time
ended, either in a revolutionary reconstitution of society at large, or in the common ruin of
the contending classes.
Marx considered these socio-economic conflicts as the driving force of human history since
these recurring conflicts have manifested themselves as distinct transitional stages of
development in Western Europe. Accordingly Marx designates human history as
encompassing four stages of development in relations of production.
1. Primitive Communism: as in co-operative tribal societies.
2. Slave Society: a development of tribal to city-state; aristocracy is born.
3. Feudalism: aristocrats are the ruling class; merchants evolve into capitalists.
4. Capitalism: capitalists are the ruling class, who create and employ the proletariat.
Marx believed that the capitalist bourgeois and their economists were promoting what he
saw as the lie that "The interests of the capitalist and those of the worker are one and the
same"; he believed that they did this by purporting the concept that "the fastest possible
growth of productive capital" was best not only for the wealthy capitalists but also for the
workers because it provided them with employment.
The theory Marxism opposes what it calls the evils of capitalism. The Marxist sought to
work towards a classless, stateless Marx defined "communism" as a classless, egalitarian
and stateless society. To Marx, the notion of a communist state would have seemed an
oxymoron, as he defined communism as the phase reached when class society and the state
had already been abolished. Marxists believe that the transition from capitalism to socialism
is an inevitable part of the development of human society; as Lenin stated, "it is evident that
Marx deduces the inevitability of the transformation of capitalist society [into a socialist
society] wholly and exclusively from the economic law of motion of contemporary society.
Marxists believe that a socialist society will be far better for the majority of the populace
than its capitalist counterpart.
SOME OF THE CONDITIONS NECESSARY FOR THE ATTAINMENT OF A COMMUNIST STATE:
1. Alienation is the estrangement of people from their humanity, which is a systematic
result of capitalism. Under capitalism, the fruits of production belong to the
employers, who expropriate the surplus created by others, and so generate
alienated labourers . In Marx's view, alienation is an objective characterization of the
worker's situation in capitalism – his or her self-awareness of this condition is not
prerequisite.
2. "We are, in Marx's terms, 'an ensemble of social relations' and we live our lives at
the core of the intersection of a number of unequal social relations based on
hierarchically interrelated structures which, together, define the historical specificity
of the capitalist modes of production and reproduction and underlay their
observable manifestations."
3. Class consciousness denotes the awareness – of itself and the social world – that a
social class possesses, and its capacity to rationally act in their best interests; hence,
class consciousness is required before they can effect a successful revolution.
CRITISIM OF MARXISM:
Some critics have criticized the academic institutionalization of Marxism for being too
shallow and detached from political action. Sometimes it is necessary to devote time to
clarifying and developing the concepts that we use, "the supersession of
the bourgeois state by the proletarian state is impossible without violent
revolution". Reformist and democratic socialist political theorist Michael
Harrington claims that, in their later life, Engels and Marx had advocated the
development of socialism through parliamentary means, wherever possible. Criticisms of
Marxism have come from various political ideologies. Additionally, there are intellectual
critiques of Marxism that contest certain assumptions prevalent in Marx's thought and
Marxism after him, without exactly rejecting Marxist politics. Below are some criticism
of Marxian theory:
`Socialist critiques: Democratic socialists and social democrats reject the idea that socialism
can be accomplished only through extra-legal class conflict and a proletarian revolution. The
relationship between Marx and other socialist thinkers and organizations, rooted in
Marxism's "scientific" and anti-utopian socialism, among other factors, has divided Marxists
from other socialists since Marx's life. After Marx's death, and with the emergence of
Marxism, there have additionally been dissensions within Marxism itself- the splitting of
the Russian Social Democratic Labour Party into Bolsheviks and Mensheviks a notable
example. "Orthodox" Marxism became counter posed to a less dogmatic, more innovative,
or even revisionist Marxism.
Anarchist critiques: Anarchism has had a strained relationship with Marxism since Marx's
life. Anarchists reject the need for a transitory state phase, claiming that socialism cannot be
established except through decentralized, no coercive organization. Individualist anarchists,
who are often neither socialists nor capitalists, reject Marxism as a statist ideology.
Economic critiques: Other critiques come from an economic standpoint. Economists such
as Friedrich Hayek have criticized Marxism for allocating resources inefficiently. V. K.
Dmitriev, writing in 1898,Ladislaus von Bortkiewicz, writing in 1906–07,and subsequent
critics have alleged that Marx's value theory and law of the tendency of the rate of profit to
fall are internally inconsistent. In other words, the critics allege that Marx drew conclusions
that actually do not follow from his theoretical premises. Once these alleged errors are
corrected, his conclusion that aggregate price and profit are determined by, and equal to,
aggregate value and surplus value. `According to the Marxist theoretician
and revolutionary Vladimir Lenin, "the principal content of Marxism" was "Marx's economic
doctrine". Marx believed that the capitalist bourgeois and their economists were promoting
what he saw as the lie that "The interests of the capitalist and those of the worker are one
and the same"; he believed that they did this by purporting the concept that "the fastest
possible growth of productive capital" was best not only for the wealthy capitalists but also
for the workers because it provided them with employment.
Exploitation: is a matter of surplus labour , the amount of labour one performs beyond
what one receives in goods. Exploitation has been a socio-economic feature of every class
society, and is one of the principal features distinguishing the social classes. The power of
one social class to control the means of production enables its exploitation of the other
classes. In capitalism, the labour theory of value is the operative concern; the value of
a commodity equals the socially necessary labor time required to produce it. Under that
condition,surplus value (the difference between the value produced and the value received
by a labourer ) is synonymous with the term "surplus labour"; thus, capitalist exploitation is
realised as deriving surplus value from the worker.
- Too much emphasis is given to the economic factor in explaining social order and change.
Culture seemed to be explained solely as derived from the economic "substructure".
However it has a degree of "autonomy"; for example it is difficult to explain the advent of
gay liberation in terms of productive or economic relations.
- Even if you get rid of capitalism you might still have enormous problems of conflict and
domination in society. State bureaucracies as well as capitalists can dominate. ask the
Russians.
- Marx’s theory of history is contradicted by the fact that industrialised countries have not
moved closer to revolution. The recent revolutions have been in peasant societies, such as
China. Capitalist societies seem to have become more secure from threat of revolution
throughout the 20th century.
- Many would say there are no laws of history and that Marx was mistaken in thinking he
had discovered the laws of history, and in thinking that his theory was scientific.
- Anarchists say Marxists fail to grasp the unacceptable dangers in their readiness to take an
authoritarian-centralist approach. Marxists are willing to use the authoritarian state to run
society after the revolution and to be ruthless in this. This is extremely dangerous; those in
control can’t be trusted and are very likely to become an entrenched dictatorship.
- Many if not all Anarchists would also reject Marx's theory of how capitalism can or will be
replaced, which involves confronting capitalism, class conflict, seizing the state and taking
power from the capitalist class, and destroying capitalism, a process which will probably
involve violence. However some anarchists believe the change could come via increasing
awareness and disenchantment, the building of alternative communities based on anticapitalist principles, and thus an increase in the numbers who want to abandon capitalism
especially given that its coming difficulties will probably increasingly reveal its inability to
provide for all.
- Marx (and most Marxists today) failed to take ecological sustainability into account. They
are strong believers in industrial development and "progress", rising material "living
standards" and economic growth. They think that capitalism is responsible for all problems
and that when it has been eliminated we can release the previously restricted power of
industry and eliminate waste to enrich everyone. In other words, Marxism has no concept of
“limits to growth”. Affluence and economic growth are regarded as desirable and possible.
“Dark green” critics insist that a good, post-capitalist society cannot be a growth society,
and it cannot have high per capita levels of resource consumption. Getting rid of capitalism
is not enough; there is even bigger problem, set by the commitment to industrialism,
growth and affluence. Marx could not have known that a time would come when we would
run into a problem of over-consumption.
-In other words advocates of The Simpler Way claim Marx was quite mistaken in thinking
that socialism would not be possible without modern technology, industrialisation and
material affluence. Achieving a good society does not require elaborate technology nor
abundance. It depends on whether or not the right values are held. There have been
societies, and there are societies today in which people live well with very humble material
lifestyles and without modern technology.
- Marxist ideas on how to change society are also strongly criticised by the
Anarchists. Marxists thought capitalism must be fought and overthrown through violent
revolution, because the capitalist class will never voluntary give up any of its privileges.
There must be leadership by a vanguard party prepared to be ruthless and to use violence,
and which will rule in an authoritarian way after the revolution. Eventually when people
have developed the right ideas and values the state can dissolve and there will be a
communist society.
In pre-capitalist economies, exploitation of the worker was achieved via physical coercion. In
the capitalist mode of production, that result is more subtly achieved; because the worker
does not own the means of production, he or she must voluntarily enter into an exploitive
work relationship with a capitalist in order to earn the necessities of life. The worker's entry
into such employment is voluntary in that he or she chooses which capitalist to work for.
However, the worker must work or starve. Thus, exploitation is inevitable, and the
"voluntary" nature of a worker participating in a capitalist society is illusory. which is a
systematic result of capitalism. Under capitalism, the fruits of production belong to the
employers, who expropriate the surplus created by others, and so generate alienated
labourers. Class consciousness denotes the awareness – of itself and the social world – that
a social class possesses, and its capacity to rationally act in their best interests; hence, class
consciousness is required before they can effect a successful revolution.
ADVANTAGES OF MARXISM.
1. Marx gave us a theory of society, i.e , an explanation of how society works, of how and
why history has unfolded, and especially an account of the nature of capitalism. These are of
great value for the task of describing what is going on in the world and for understanding
the problems and directions of our society today.
2. Marx also regarded capitalism as extremely unsatisfactory and he was very concerned
with getting rid of it, via violent revolution and the establishment of a communist society
dis. Marxism is therefore also about political goals and action.Obviously very few people in
western society today accept this second set of ideas; most seem to think capitalism is
desirable, most do not want to see it destroyed and most do not like the idea of revolution
or communism.
4. Marxists also insist that only labour should be able to earn money and that money
should not be able to earn money. In other words they (Marxist) do not think people
who are rich should be able to receive an income as interest on their savings or
investments, especially as this means that the richer one is, the more income one
gets without having to work. while rich people consume goods made by people who
must work for their income.
The following notes are intended to show the value of the first of these sets of ideas. One
can accept Marx's concepts as being very useful for the purpose of understanding our
society without accepting his condemnation of capitalism, his political values or his
recommendations for political action. In other words, if you do not agree with Marxist social
ideals and implications for action, don't let this interfere with your evaluation of Marxist
theory about how our society works.
However, this repeating cycle will come to an end. The thesis of capitalism and the
antithesis of the proletariat will issue into a synthesis which will eventually see the
achievement of a classless society. Because it has been the existence of class conflict which
has generated change, in a classless society the dialectical process will have come to an end.
This does not mean there can be no further change or progress, e.g., in art or science, but it
does seem to mean that there will be no further political change. However, at the end of his
life Marx seemed to think that a non-violent and non-industrial path to socialism might be
possible. That is, it might not be necessary to go through the long and arduous period of
industrialisation and development of a working class, increasing immiseration and eventual
revolution. Many Anarchists think it is possible to begin building a new, post-capitalist
society now, without having to wait for or work for the destruction of capitalism.
THE COMPARATIVE SCHOOL OF THOUGHT.
INTRODUCTION
The expression comparative law is a modern one, first used in the 19th century when it
became clear that the comparison of legal institutions deserved a systematic approach, in
order to increase understanding of foreign cultures and to further legal progress. From
early times, however, certain scholars and researchers have made use of the comparative
technique, conscious of the advantages to be gained.
Comparative law is the study of differences and similarities between the laws of different
countries, Examination of comparative legal systems and of the relationships of the law to
the social sciences.More specifically, it involves study of the different legal systems in
existence in the world, including the common law, the civil law, socialist law, Jewish
Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of
foreign legal systems, even where no explicit comparison is undertaken. The importance of
comparative law has increased enormously in the present age of internationalism, economic
globalization and democratization. Comparative law is an academic study of separate legal
systems, each one analyzed in its constitutive elements; how they differ in the different
legal systems, and how their elements combine into a system. Several disciplines have
developed as separate branches of comparative law, including comparative constitutional
law, comparative administrative law, comparative civil law (in the sense of the law
of torts, delicts, contracts and obligations), comparative commercial law (in the sense
of business organizations and trade), and comparative criminal law. Studies of these
specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed
comparisons of two countries, or broad-ranging studies of several countries. Comparative
law is different from the fields of general jurisprudence (legal theory), international law,
including both public international law and private international law (also known as conflict
of laws).
It appears today the principal purposes of comparative law are:

to attain a deeper knowledge of the legal systems in effect

to perfect the legal systems in effect

Possibly, to contribute to a unification of legal systems, of a smaller or larger scale.
HIGHLIGHTS.
1. Despite the differences between comparative law and these other legal fields,
comparative law helps inform all of these areas of normativity. For example,
comparative law can help international legal institutions, such as those of the United
Nations System, in analyzing the laws of different countries regarding their treaty
obligations.
2. Comparative law would be applicable to private international law when developing
an approach to interpretation in a conflicts analysis. It may contribute to legal theory
by creating categories and concepts of general application.
3. Comparative law may also provide insights into the question of legal transplants, i.e.
the transplanting of law and legal institutions from one system to another. Also, the
usefulness of comparative law for sociology of law and law and economics (and vice
versa) is very large. The comparative study of the various legal systems may show
how different legal regulations for the same problem function in practice.
Conversely, sociology of law and law & economics may help comparative law answer
questions, such as: How do regulations in different legal systems really function in
the respective societies? Are certain legal rules comparable? How do the similarities
and differences between legal systems get explained?
Montesquieu's comparative approach.
BARON DE MONTESQUI is generally regarded as an early founding figure of comparative
law, he stated that “ The political and civil laws of each nation should be adapted in such a
manner to the people for whom they are framed that it should be a great chance if those of
one nation suit another. They should be in relation to the nature and principle of each
government: whether they form it, as may be said of politic laws; or whether they support
it, as in the case of civil institutions. They should be in relation to the climate of each
country, to the quality of its soil, to its situation and extent, to the principal occupation of
the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to
the degree of liberty which the constitution will bear; to the religion of the inhabitants, to
their inclinations, riches, numbers, commerce, manners, and customs. discussing the French
and English systems for punishment of false witnesses, he advises that "to determine which
of those systems is most agreeable to reason, we must take them each as a whole and
compare them in their entirety." Sir Henry James Sumner Maine, a British jurist and first
professor of comparative law at Oxford explained the need for comparative theory of law
saying that ”As the civil laws depend on the political institutions, because they are made for
the same society, whenever there is a design of adopting the civil law of another nation, it
would be proper to examine beforehand whether they have both the same institutions and
the same political law”.
Classifications of legal systems.
Armin Jon, Nolde, and Wolff believed that, for purposes of classifying the (then)
contemporary legal systems of the world, it was required that those systems per se get
studied, irrespective of external factors, such as geographical ones. They proposed the
classification of legal system into seven groups.
David proposed the classification of legal systems, according to the different ideology.
konrad Zweigert and Hein Kötz propose a different, multidimensional methodology for
categorizing laws, i.e. for ordering families of laws. They maintain that, to determine such
families, five criteria should be taken into account, in particular: the historical background,
the characteristic way of thought, the different institutions, the recognized sources of law,
and the dominant ideology. Using the aforementioned criteria, they classify the legal
systems of the world into six families:

Roman family.

German family..

Common law family.

Nordic family.

Family of the laws of the Far East (China, and Japan).

Religious family (Jewish, Muslim, and Hindu law).
Criticisms:
1. some think David’s way of classifying law is of a technical rather than of an
ideological nature. Of a different kind is, for instance, the antithesis between (say)
the Italian and the American Law, and of a different kind that between the Soviet,
Muslim, Hindu, or Chinese Law. According to David, the Romano-Germanic legal
systems included those countries where legal science was formulated according to
Roman Law, whereas common law countries are those where law was created from
the judges.
2. Descriptive chauvinism/ normative chauvinism is that fault which consists in
recreating the other tradition in the image of one’s own. This is reading a text from
another tradition and assuming that it asks the same questions or constructs
responses or answers in a similar manner as that one with which one is most
familiar .
3. There is the tendency found in many philosophers to believe that their tradition is
best and that insofar as the others are different, they are inferior or in error.
4. some philosophers never really offer any critical view that puts aside a thinker’s
claims. But many philosophers hold that some views are less defensible than others,
and some are just wrong. They believe this is not only true when considering thinkers
within the history of Western philosophy, but also when doing cross-cultural
comparative philosophy. While it is true that not all Western philosophy has it right,
it is equally true that neither does any other tradition.
Some Buddhist, Indian, Confucian, Daoist, and Islamic views should be challenged,
and sometimes they will be found deficient either according to agreed-on crosscultural standards, or because of some form of internal incoherencec.
5. philosophical traditions may be incommensurable. One kind of incommensurability
involves the inability to translate some concepts in one tradition into meaning and
reference in some other tradition. traditions differ on what counts as evidence and
grounds for decidability, thus making it impossible to make a judgment between
them. There is no common or objective decision criterion justifying the
6. some philosophical models differ from others in such fundamental ways as to make
it impossible for the advocates to understand each other. Wong thinks that some
forms of life may be so far from a person’s experience and philosophical tradition
that she is unable to see the merits in another view.
7. The idea is that each philosopher infects the other with a way of seeing. So, the task
is to come to an understanding of how the other philosophical tradition is tied to a
life that humans have found satisfying and meaningful.
THE PHILOSPHICAL SCHOOL OF THOUGHT.
INTRODUCTION.
Philosophy of law (or legal philosophy) is concerned with providing a general philosophical
analysis of law and legal institutions. philosophy of law is a branch
of philosophy and jurisprudence which studies basic questions about law and legal systems,
such as "what is law?", "what are the criteria for legal validity?," "what is the relationship
between law and morality?", and many other similar questions. Issues in the field rangeing
from abstract conceptual questions about the nature of law and legal systems, to normative
questions about the relationship between law and morality and the justification for various
legal institutions. Philosophers of law are also concerned with a variety of philosophical
problems that arise in particular legal subjects, such as constitutional law, contract law,
criminal law, and torts. Thus, philosophy of law addresses such diverse topics as theories of
contract law, theories of criminal punishment, theories of tort liability, and the question of
whether judicial review is justified.
Topics in legal philosophy tend to be more abstract than related topics in political
philosophy and applied ethics. For example, whereas the question of how properly to
interpret the U.S. Constitution belongs to democratic theory (and hence falls under the
heading of political philosophy), the analysis of legal interpretation falls under the heading
of legal philosophy.
Likewise, whereas the question of whether capital punishment is morally permissible falls
under the heading of applied ethics, the question of whether the institution
of punishment can be justified falls under the heading of legal philosophy.
Categories of legal philosophy.
There are roughly three categories into which the topics of legal philosophy fall: analytic
jurisprudence, normative jurisprudence, and critical theories of law. Analytic
jurisprudence involves providing an analysis of the essence of law so as to understand what
differentiates it from other systems of norms, such as ethics. Normative jurisprudence
involves the examination of normative, evaluative, and otherwise prescriptive issues about
the law, such as restrictions on freedom, obligations to obey the law, and the grounds for
punishment. Finally, critical theories of law, such as critical legal studies and feminist
jurisprudence, challenge more traditional forms of legal philosophy.
1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to provide an
account of what distinguishes law as a system of norms from other systems of norms, such
as ethical norms. As John Austin describes the project, analytic jurisprudence seeks "the
essence or nature which is common to all laws that are properly so called". Accordingly,
analytic jurisprudence is concerned with providing necessary and sufficient conditions for
the existence of law that distinguish law from non-law. While this task is usually interpreted
as an attempt to analyze the concepts of law and legal system, there is some confusion as to
both the value and character of conceptual analysis in philosophy of law. As Brian Leiter
points out, philosophy of law is one of the few philosophical disciplines that takes
conceptual analysis as its principal concern; most other areas in philosophy have taken
a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of
conceptual analysis in law, Brian Bix distinguishes a number of different purposes that can
be served by conceptual claims:
1. to track linguistic usage;
2. to stipulate meanings;
3. to explain what is important or essential about a class of objects; and
4. To establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
. Conceptual theories of law can be divided into two main headings: (a) those that affirm
there is a conceptual relation between law and morality and (b) those that deny that there
is such a relation. Nevertheless, Ronald Dworkin's view is often characterized as a third
theory partly because it is not clear where he stands on the question of whether there is a
conceptual relation between law and morality.
a. Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a
necessary relation between the concepts of law and morality. According to this view, then,
the concept of law cannot be fully articulated without some reference to moral notions.
Though the Overlap Thesis may seem unambiguous, there are a number of different ways in
which it can be interpreted. The strongest form of the Overlap Thesis underlies the classical
naturalism of St. Thomas Aquinas and William Blackstone. As Blackstone describes the
thesis: This law of nature, being co-eval with mankind and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe, in all countries,
and at all times: no human laws are of any validity, if contrary to this; and such of them as
are valid derive all their force, and all their authority, immediately, from this original .
In this passage, Blackstone articulates the two claims that constitute the theoretical core of
classical naturalism: 1) there can be no legally valid standards that conflict with the natural
law; and 2) all valid laws derive what force and authority they have from the natural law. On
this view, to paraphrase Augustine, an unjust law is no law at all.
. According to Finnis a prominent philosopher : "the principles of natural law explain the
obligatory force of positive laws, even when those laws cannot be deduced from those
principles" .On Finnis's view of the Overlap Thesis, the essential function of law is to provide
a justification for state coercion. Accordingly, an unjust law can be legally valid, but cannot
provide an adequate justification for use of the state coercive power and is hence not
obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in
the concept of law. An unjust law, on this view, is legally binding, but is not fully law.
Although, Lon Fuller rejects the idea that there are necessary moral constraints on the
content of law. On Fuller's view, law is necessarily subject to a procedural morality
consisting of eight principles:
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality
can achieve law's essential purpose of achieving social order through the use of rules that
guide behavior because people will not be able to determine what the rules require.
Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that
they are built into the existence conditions for law: "A total failure in any one of these eight
directions does not simply result in a bad system of law; it results in something that is not
properly called a legal system at all" .
b. Legal Positivism : Opposed to all forms of naturalism is legal positivism, which is roughly
constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the
Conventionality Thesis, and (iii) the Separability Thesis.
The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts that it is a
necessary truth that legal validity is ultimately a function of certain kinds of social facts. John
Austin (1995) argues that the principal distinguishing feature of a legal system is the
presence of a sovereign who is habitually obeyed by most people in the society, but not in
the habit of obeying any determinate human superior. On Austin's view, a rule R is legally
valid (that is, is a law) in a society S if and only if R is commanded by the sovereign in S and is
backed up with the threat of a sanction. The relevant social fact that confers validity, on
Austin's view, is promulgation by a sovereign willing to impose a sanction for
noncompliance.
The Conventionality Thesis emphasizes law's conventional nature, claiming that the social
facts giving rise to legal validity are authoritative in virtue of some kind of social convention.
According to the Conventionality Thesis, it is a conceptual truth about law that legal validity
can ultimately be explained in terms of criteria that are authoritative in virtue of some kind
of social convention.
The Separability Thesis, at the most general level, simply denies naturalism's Overlap
Thesis; according to the Separability Thesis, there is no conceptual overlap between the
notions of law and morality. The final thesis comprising the foundation of legal positivism is
the Separability Thesis. In its most general form, the Separability Thesis asserts that law and
morality are conceptually distinct. This abstract formulation can be interpreted in a number
of ways. For example, Klaus F¸þer interprets it as making a meta-level claim that the
definition of law must be entirely free of moral notions. This interpretation implies that any
reference to moral considerations in defining the related notions of law, legal validity, and
legal system is inconsistent with the Separability Thesis. As Hart describes it, the Separability
Thesis is no more than the "simple contention that it is in no sense a necessary truth that
laws reproduce or satisfy certain demands of morality, though in fact they have often done
so". In so far as the object-level interpretation of the Separability Thesis denies it is a
necessary truth that there are moral constraints on legal validity, it implies the existence of
a possible legal system in which there are no moral constraints on legal validity.
c. Ronald Dworkin's Third Theory
Ronald Dworkin rejects positivism's Social Fact Thesis on the ground that there are some
legal standards the authority of which cannot be explained in terms of social facts. In
deciding hard cases, for example, judges often invoke moral principles that Dworkin believes
do not derive their legal authority from the social criteria of legality contained in a rule of
recognition. Nevertheless, since judges are bound to consider such principles when relevant,
they must be characterized as law. Thus, Dworkin concludes, "if we treat principles as law
we must reject the positivists' first tenet, that the law of a community is distinguished from
other social standards by some test in the form of a master rule". Dworkin believes
adjudication is and should be interpretive: "judges should decide hard cases by interpreting
the political structure of their community in the following, perhaps special way: by trying to
find the best justification they can find, in principles of political morality, for the structure as
a whole, from the most profound constitutional rules and arrangements to the details of, for
example, the private law of tort or contract". There are, then, two elements of a successful
interpretation. First, since an interpretation is successful in so far as it justifies the particular
practices of a particular society, the interpretation must fit with those practices in the sense
that it coheres with existing legal materials defining the practices. Second, since an
interpretation provides a moral justification for those practices, it must present them in the
best possible moral light. Thus, Dworkin argues, a judge should strive to interpret a case in
roughly the following way: A thoughtful judge might establish for himself, for example, a
rough "threshold" of fit which any interpretation of data must meet in order to be
"acceptable" on the dimension of fit, and then suppose that if more than one interpretation
of some part of the law meets this threshold, the choice among these should be made, not
through further and more precise comparisons between the two along that dimension, but
by choosing the interpretation which is "substantively" better, that is, which better
promotes the political ideals he thinks correct. Accordingly, on Dworkin's view, the legal
authority of a binding principle derives from the contribution it makes to the best moral
justification for a society's legal practices considered as a whole. Thus, a legal principle
maximally contributes to such a justification if and only if it satisfies two conditions:
1. the principle coheres with existing legal materials; and
2. the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.
On Dworkin's view, the point of any general theory of law is to interpret a very complex set
of related social practices that are "created by people as an entity distinct from them"; for
this reason, Dworkin believes the project of putting together a general theory of law is
inherently constructivist: General theories of law must be abstract because they aim to
interpret the main point and structure of legal practice, not some particular part or
department of it. But for all their abstraction, they are constructive interpretations: they try
to show legal practice as a whole in its best light, to achieve equilibrium between legal
practice as they find it and the best justification of that practice. So no firm line divides
jurisprudence from adjudication or any other aspect of legal practice.
2. Normative Jurisprudence
Normative jurisprudence involves normative, evaluative, and otherwise prescriptive
questions about the law."What is law?," What is the goal or purpose of law? What moral or
political theories provide a foundation for the law? Three approaches have been influential
in contemporary moral and political philosophy, and these approaches are reflected in
normative theories of law: . (a) when and to what extent laws can restrict the freedom of
citizens, (b) the nature of one's obligation to obey the law, and (c) the justification of
punishment by law.

Utilitarianism is the view that the laws should be crafted so as to produce the best
consequences. Historically, utilitarian thinking about law is associated with the great
philosopher, Jeremy Bentham. In contemporary legal theory, the utilitarian approach
is frequently championed by scholars who work in the law and economics tradition.

Deontology is the view that the laws should protect individual autonomy, liberty, or
rights. The philosopher Immanuel Kant formulated a deontological theory of law (but
not the only possible).

Aretaic moral theories such as contemporary virtue ethics emphasize the role of
character in morality. Virtue jurisprudence is the view that the laws should promote
the development of virtuous characters by citizens. Historically, this approach is
associated with Aristotle. Contemporary virtue jurisprudence is inspired by
philosophical work on virtue ethics.
There are many other normative approaches to the philosophy of law, including critical legal
studies and libertarian theories of law. Studies of evaluative diversity recognize adherence
to law as one of several alternative symbiotic forms of evaluation.
a. Freedom and the Limits of Legitimate Law: Laws limit human autonomy by restricting
freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral
options by penalizing them with imprisonment and, in some cases, death. Likewise, civil
laws require people to take certain precautions not to injure others and to honor their
contracts. Given that human autonomy deserves prima facie moral respect, the question
arises as to what are the limits of the state's legitimate authority to restrict the freedom of
its citizens:
John Stuart Mill provides the classic liberal answer in the form of the harm principle: The
sole end for which mankind are warranted, individually or collectively, in interfering with
the liberty of action of any of their number is self-protection. The only purpose for which
power can rightfully be exercised over any member of a civilised community against his will
is to prevent harm to others. His own good, either physical or moral, is not a sufficient
warrant. Over himself, over his own body and mind, the individual is sovereign. While Mill
left the notion of harm underdeveloped, he is most frequently taken to mean only physical
harms and more extreme forms of psychological harm. Many philosophers believe that Mill
understates the limits of legitimate state authority over the individual, claiming that law
may be used to enforce morality, to protect the individual from herself, and in some cases
to protect individuals from offensive behavior.
i. Legal Moralism: Legal moralism is the view that the law can legitimately be used to
prohibit behaviors that conflict with society's collective moral judgments even when those
behaviors do not result in physical or psychological harm to others. According to this view, a
person's freedom can legitimately be restricted simply because it conflicts with society's
collective morality; thus, legal moralism implies that it is permissible for the state to use its
coercive power to enforce society's collective morality. The most famous legal moralist is
Patrick Devlin, who argues that a shared morality is essential to the existence of a society: If
men and women try to create a society in which there is no fundamental agreement about
good and evil they will fail; if, having based it on common agreement, the agreement goes,
the society will disintegrate. For society is not something that is kept together physically; it
is held by the invisible bonds of common thought. If the bonds were too far relaxed the
members would drift apart. A common morality is part of the bondage. The bondage is part
of the price of society; and mankind, which needs society, must pay its price. In so far as
human beings cannot lead a meaningful existence outside of society, it follows, on Devlin's
view, that the law can be used to preserve the shared morality as a means of preserving
society itself.
ii. Legal Paternalism: Legal paternalism is the view that it is permissible for the state to
legislate against what Mill calls "self-regarding actions" when necessary to prevent
individuals from inflicting physical or severe emotional harm on themselves. As Gerald
Dworkin describes it, a paternalist interference is an "interference with a person's liberty of
action justified by reasons referring exclusively to the welfare, good, happiness, needs,
interests or values of the person being coerced". Thus, for example, a law requiring use of a
helmet when riding a motorcycle is a paternalistic interference in so far as it is justified by
concerns for the safety of the rider.
iii. The Offense Principle: Joel Feinberg believes the harm principle does not provide
sufficient protection against the wrongful behaviors of others, as it is inconsistent with
many criminal prohibitions we take for granted as being justified. If the only legitimate use
of the state coercive force is to protect people from harm caused by others, then statutes
prohibiting public sex are impermissible because public sex might be offensive but it does
not cause harm (in the Millian sense) to others.
Accordingly, Feinberg argues the harm principle must be augmented by the offense
principle, which he defines as follows: "It is always a good reason in support of a proposed
criminal prohibition that it would probably be an effective way of preventing serious
offense (as opposed to injury or harm) to persons other than the actor, and that it is
probably a necessary means to that end" . By "offense," Feinberg intends a subjective and
objective element: the subjective element consists in the experience of an unpleasant
mental state (for example, shame, disgust, anxiety, embarrassment ); the objective element
consists in the existence of a wrongful cause of such a mental state.
b. The Obligation to Obey Law
Natural law critics of positivism , frequently complain that if positivism is correct, there
cannot be a moral obligation to obey the law qua law (that is, to obey the law as such, no
matter what the laws are, simply because it is the law). As Feinberg puts the point: The
positivist account of legal validity is hard to reconcile with the claim that valid law as such,
no matter what its content, deserves our respect and general fidelity. Even if valid law is bad
law, we have some obligation to obey it simply because it is law. But how can this be so if a
law's validity has nothing to do with its content?
The idea is this: if what is essential to law is just that there exist specified recipes for making
law, then there cannot be a moral obligation to obey a rule simply because it is the law.
Contemporary positivists, for the most part, accept the idea that positivism is inconsistent
with an obligation to obey law qua law , but argue that the mere status of a norm as law
cannot give rise to any moral obligation to obey that norm. While there might be a moral
obligation to obey a particular law because of its moral content (for example, laws
prohibiting murder) or because it solves a coordination problem (for example, laws
requiring people to drive on the right side of the road), the mere fact that a rule is law does
not provide a moral reason for doing what the law requires. Indeed, arguments for the
existence of even a prima facie obligation to obey law (that is, an obligation that can be
outweighed by competing obligations) have largely been unsuccessful. Arguments in favour
of an obligation to obey the law roughly fall into four categories: (1) arguments from
gratitude; (2) arguments from fair play; (3) arguments from implied consent; and (4)
arguments from general utility.
The argument from gratitude begins with the observation that all persons, even those who
are worst off, derive some benefit from the state's enforcement of the law. On this view, a
person who accepts benefits from another person thereby incurs a duty of gratitude
towards the benefactor. And the only plausible way to discharge this duty towards the
government is to obey its laws. Nevertheless, as M.B.E. Smith points out, "if someone
confers benefits on me without any consideration of whether I want them, and if he does
this in order to advance some purpose other than promotion of my particular welfare, I
have no obligation to be grateful towards him." Since the state does not give citizens a
choice with respect to such benefits, the mere enjoyment of them cannot give rise to a duty
of gratitude.
John Rawls argues that there is a moral obligation to obey law qua law in societies in which
there is a mutually beneficial and just scheme of social cooperation. What gives rise to a
moral obligation to obey law qua law in such societies is a duty of fair play: fairness requires
obedience of persons who intentionally accept the benefits made available in a society
organized around a just scheme of mutually beneficial cooperation.
c. The Justification of Punishment
Punishment is unique among putatively legitimate acts in that its point is to inflict
discomfort on the recipient; ( an act that is incapable of causing a person minimal
discomfort cannot be characterized as a punishment) . In most contexts, the commission of
an act for the purpose of inflicting discomfort is morally problematic because of its
resemblance to torture. For this reason, institutional punishment requires a moral
justification sufficient to distinguish it from other practices of purposely inflicting discomfort
on other people.
Justifications for punishment typically take five forms: (1) retributive; (2) deterrence; (3)
preventive; (4) rehabilitative; and (5) restitutionary.
According to the retributive justification, what justifies punishing a person is that she
committed an offense that deserves the punishment. On this view, it is morally appropriate
that a person who has committed a wrongful act should suffer in proportion to the
magnitude of her wrongdoing.
In contrast to the retributivist theories that look back to a person's prior wrongful act as
justification for punishment, utilitarian theories look forward to the beneficial consequences
of punishing a person. There are three main lines of utilitarian reasoning. According to the
deterrence justification, punishment of a wrongdoer is justified by the socially beneficial
effects that it has on other persons. On this view, punishment deters wrongdoing by
persons who would otherwise commit wrongful acts.
The preventive justification argues that incarcerating a person for wrongful acts is justified
insofar as it prevents that person from committing wrongful acts against society during the
period of incarceration.
The rehabilitative justification argues that punishment is justified in virtue of the effect that
it has on the moral character of the offender.
The restitutionary justification focuses on the effect of the offender's wrongful act on the
victim. Other theories of punishment conceptualize the wrongful act as an offense against
society; the restitutionary theory sees wrongdoing as an offense against the victim. Thus, on
this view, the principal purpose of punishment must be to make the victim whole to the
extent that this can be done: "The point is not that the offender deserves to suffer; it is
rather that the offended party desires compensation" .Accordingly, a criminal convicted of
wrongdoing should be sentenced to compensate her victim in proportion to the victim's
loss.
3. Critical Theories of Law.
a. Legal Realism.
The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes
and reached its apex in the 1920s and 30s through the work of Karl Llewellyn, Jerome Frank,
and Felix Cohen. The realists eschewed the conceptual approach of the positivists and
naturalists in favor of an empirical analysis that sought to show how practicing
judges really decide cases. The realists were deeply skeptical of the ascendant notion that
judicial legislation is a rarity. While not entirely rejecting the idea that judges can be
constrained by rules, the realists maintained that judges create new law through the
exercise of lawmaking discretion considerably more often than is commonly supposed. On
their view, judicial decision is guided far more frequently by political and moral intuitions
about the facts of the case (instead of by legal rules) than theories like positivism and
naturalism acknowledge.
As an historical matter, legal realism arose in response to legal formalism, a particular
model of legal reasoning that assimilates legal reasoning to syllogistic reasoning. According
to the formalist model, the legal outcome (that is, the holding) logically follows from the
legal rule (major premise) and a statement of the relevant facts (minor premise). Realists
believe that formalism understates judicial lawmaking abilities insofar as it represents legal
outcomes as entailed syllogistically by applicable rules and facts. For if legal outcomes are
logically implied by propositions that bind judges, it follows that judges lack legal authority
to reach conflicting outcomes. Legal realism can roughly be characterized by the following
claims:
1. the class of available legal materials is insufficient to logically entail a unique legal
outcome in most cases worth litigating at the appellate level (the Local
Indeterminacy Thesis);
2. in such cases, judges make new law in deciding legal disputes through the exercise of
a lawmaking discretion (the Discretion Thesis); and
3. judicial decisions in indeterminate cases are influenced by the judge's political and
moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply (2): insofar as judges
decide legally indeterminate cases, they must be creating new law.
b. Critical Legal Studies
The critical legal studies (CLS) movement attempts to expand the radical aspects of legal
realism into a Marxist critique of mainstream liberal jurisprudence. CLS theorists believe the
realists understate the extent of indeterminacy; whereas the realists believe that
indeterminacy is local in the sense that it is confined to a certain class of cases, CLS theorists
argue that law is radically (or globally) indeterminate in the sense that the class of available
legal materials rarely, if ever, logically/causally entails a unique outcome.
CLS theorists emphasize the role of ideology in shaping the content of the law. On this view,
the content of the law in liberal democracies necessarily reflects "ideological struggles
among social factions in which competing conceptions of justice, goodness, and social and
political life get compromised, truncated, vitiated, and adjusted" .The inevitable outcome of
such struggles, on this view, is a profound inconsistency permeating the deepest layers of
the law. It is this pervasive inconsistency that gives rise to radical indeterminacy in the law.
For in so far as the law is inconsistent, a judge can justify any of a number of conflicting
outcomes. , the province of judges is to interpret, and not make, the law. For, on this view,
democratic ideals imply that lawmaking must be left to legislators who, unlike appointed
judges, are accountable to the electorate. But if law is radically indeterminate, then judges
nearly always decide cases by making new law, which is inconsistent with liberal
conceptions of the legitimate sources of lawmaking authority.
c. Law and Economics
The law and economics movement argues for the value of economic analysis in the law both
as a description about how courts and legislators do behave and as a prescription for how
such officials should behave. The legal economists, led by Richard Posner, argue that the
content of many areas of the common law can be explained in terms of its tendency to
maximize preferences: Many areas of law, especially the great common law fields of
property, torts, crimes, and contracts, bear the stamp of economic reasoning. It is not a
refutation that few judicial opinions contain explicit references to economic concepts. Often
the true grounds of decision are concealed rather than illuminated by the characteristic
rhetoric of judicial opinions. Indeed, legal education consists primarily of learning to dig
beneath the rhetorical surface to find those grounds, many of which may turn out to have
an economic character. Posner subscribes to the so-called efficiency theory of the common
law, according to which "the common law is best (not perfectly) explained as a system for
maximizing the wealth of society". More influential than Posner's descriptive claims is his
normative view that law should strive to maximize wealth. According to Posner, the proper
goal of the statutory and common law is to promote wealth maximization, which can best
be done by facilitating the mechanisms of the free market.
d. Outsider Jurisprudence
So-called "outsider jurisprudence" is concerned with providing an analysis of the ways in
which law is structured to promote the interests of white males and to exclude females and
persons of colour. For example, one principal objective of feminist jurisprudence is to show
how patriarchal assumptions have shaped the content of laws in a wide variety of areas:
property, contract, criminal law, constitutional law, and the law of civil rights. Additionally,
feminist scholars challenge traditional ideals of judicial decision-making according to which
judges decide legal disputes by applying neutral rules in an impartial and objective fashion.
Feminists have, of course, always questioned whether it is possible for judges to achieve an
objective and impartial perspective, but now question whether the traditional model is even
desirable. Critical race theory is likewise concerned to point up the way in which
assumptions of white supremacy have shaped the content of the law at the expense of
persons of colour. Additionally, critical race theorists show how the experience, concerns,
values, and perspectives of persons of colour are systematically excluded from mainstream
discourse among practicing lawyers, judges, and legislators. Finally, such theorists attempt
to show how assumptions about race are built into most liberal theories of law.
CRITICIZMS OF THIS SCHOOL.
1. Hart takes a different view of the Social Fact Thesis. Hart believes that Austin's
theory accounts, at most, for one kind of rule: primary rules that require or prohibit
certain kinds of behavior. On Hart's view, Austin overlooked the presence of other
primary rules that confer upon citizens the power to create, modify, and extinguish
rights and obligations in other persons. As Hart points out, the rules governing the
creation of contracts and wills cannot plausibly be characterized as restrictions on
freedom that are backed by the threat of a sanction. Most importantly, however,
Hart argues Austin overlooks the existence of secondary meta-rules that have as
their subject matter the primary rules themselves and distinguish full-blown legal
systems from primitive systems of law: . [Secondary rules] may all be said to be on a
different level from the primary rules, for they are all about such rules; in the sense
that while primary rules are concerned with the actions that individuals must or
must not do, these secondary rules are all concerned with the primary rules
themselves. They specify the way in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation
conclusively determined .
Hart distinguishes three types of secondary rules that mark the transition from primitive
forms of law to full-blown legal systems: (1) the rule of recognition, which "specifies some
feature or features possession of which by a suggested rule is taken as a conclusive
affirmative indication that it is a rule of the group to be supported by the social pressure it
exerts" (2) the rule of change, which enables a society to add, remove, and modify valid
rules; and (3) the rule of adjudication, which provides a mechanism for determining whether
a valid rule has been violated. On Hart's view, then, every society with a full-blown legal
system necessarily has a rule of recognition that articulates criteria for legal validity that
include provisions for making, changing and adjudicating law. Law is, to use Hart's famous
phrase, "the union of primary and secondary rules"
2. Dworkin argues that Mill's view that a person "cannot rightfully be compelled to do
or forbear because it will be better for him" precludes paternalistic legislation to
which fully rational individuals would agree. According to Dworkin, there are goods,
such as health and education , that any rational person needs to pursue her own
good-no matter how that good is conceived. Thus, Dworkin concludes, the
attainment of these basic goods can legitimately be promoted in certain
circumstances by using the state's coercive force. Nevertheless, he argues that there
are limits to legitimate paternalism: (1) the state must show that the behavior
governed by the proposed restriction involves the sort of harm that a rational person
would want to avoid; (2) on the calculations of a fully rational person, the potential
harm outweighs the benefits of the relevant behavior; and (3) the proposed
restriction is the least restrictive alternative for protecting against the harm.
MINOR CRITICISMS:
1. First, Rawls's argument does not establish the existence of a content-independent
obligation to obey law; the obligation arises only in those societies that
institutionalize a just scheme of social cooperation. Second, even in such societies,
citizens are not presented with a genuine option to refuse those benefits. But
accepting benefits one is not in a position to refuse cannot give rise to an obligation
of fair play. The argument from consent grounds an obligation to obey law on some
sort of implied promise. As is readily evident, we can voluntarily assume obligations
by consenting to them or making a promise. Of course, most citizens never explicitly
promise or consent to obey the laws; for this reason, proponents of this argument
attempt to infer consent from such considerations as continued residence and
acceptance of benefits from the state. Nevertheless, acceptance of benefits one
cannot decline no more implies consent to obey law than it does duties of fair play
or gratitude. Moreover, the prohibitive difficulties associated with emigration
preclude an inference of consent from continued residence. Finally, the argument
from general utility grounds the duty to obey the law in the consequences of
universal disobedience. Since, according to this argument, the consequences of
general disobedience would be catastrophic, it is wrong for any individual to disobey
the law; for no person may disobey the law unless everyone may do so. In response,
Smith points out that this strategy of argument leads to absurdities. The problem,
however, is that the mere fact that someone is deserving of punishment does not
imply it is morally permissible for the state to administer punishment; for example, it
would be wrong for me to punish someone else's child even though her behaviour
might deserve it.
2. . The problem with the deterrence theory is that it justifies punishment of one
person on the strength of the effects that it has on other persons. The idea that it is
permissible to deliberately inflict discomfort on one person because doing so may
have beneficial effects on the behavior of other persons appears inconsistent with
the Kantian principle that it is wrong to use people as mere means.
3. The preventive justification argues that incarcerating a person for wrongful acts is
justified in so far as it prevents that person from committing wrongful acts against
society during the period of incarceration. The rehabilitative justification argues that
punishment is justified in virtue of the effect that it has on the moral character of the
offender. The problem with the restitutionary theory is that it fails to distinguish
between compensation and punishment. Compensatory objectives focus on the
victim, while punitive objectives focus on the offender.
4. . Each of these justifications suffers from the same flaw: prevention of crime and
rehabilitation of the offender can be achieved without the deliberate infliction of
discomfort that constitutes punishment.
REALIST SCHOOL OF THOUGHT.
Legal Realism.
The school of legal philosophy that challenges the orthodox view of U.S. Jurisprudence under
which law is characterized as an autonomous system of rules and principles that courts can
logically apply in an objective fashion to reach a determinate and a political judicial decision.
Legal realists maintain that common-law adjudication is an inherently subjective system that
produces inconsistent and sometimes incoherent results that are largely based on the
political, social, and moral predilections of state and federal judges.
The U.S. legal realism movement began in 1881 when oliver wendell holmes
jr. published The Common Law, an attack on the orthodox view of law. "The life of the law
has not been logic," Holmes wrote, "it has been experience." Legal realism flourished during
the 1920s and 1930s when Roscoe Pound, a professor from Harvard Law School, and karl
llewellyn, a professor from Yale Law School, published a series of articles debating the
nuances of the movement. Although the movement declined after World War II, it
continues to influence how judges, lawyers, and laypersons think about the law.
Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn,
were sharply critical of each other and presented irreconcilable theories. Yet, five strands of
thought predominate in the movement: The strands focus on power and economics in
society, the persuasion and characteristics of individual judges, society's welfare, a practical
approach to a durable result, and a synthesis of legal philosophies.
Power and Economics in Society.
The first strand is marked by the nihilistic view that law represents the will of society's most
powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he
tells Socrates that in every government "laws are made by the ruling party in its own
interest," and "the ruling element is always the strongest." When courts speak in terms of
what is right and just, Thrasymachus said, they are speaking "in the interest of those
established in power." Justice Holmes echoed these sentiments when he wrote that the law
must not be perverted to prevent the natural outcome of dominant public opinion. Realists
argued that law frequently equates the dominant power in society with pervasive economic
interests.
They felt that the economy was regulated by common-law principles that safeguarded the
interests of society's wealthiest members. In support of this contention, realists pointed to
landlord-tenant laws that entitled lessors to evict lessees for technical breaches of their
lease, labor laws that allowed management to replace striking workers, and contract laws
that permitted employers to terminate their workers without justification.
The realists' economic analysis of law spawned two related movements in U.S.
jurisprudence that occupy polar extremes on the political spectrum. One is the conservative
law and economics movement, whose most prominent of whom is richard posner, believe
that common-law principles must be interpreted to maximize the aggregate wealth of
society without regard to whether such wealth is distributed equally. The other is the
liberal Critical Legal Studies movement, whose adherents, called crits, believe that the law
must be utilized to redistribute wealth, power, and liberty so that every citizen is
guaranteed a minimum level of dignity and equality. Since the mid-1900s, the crits have
focused less on what they perceive as economic exploitation in the law, and more on what
they see as political exploitation. In this regard they have assailed various U.S. courts for
advancing the interests of adult, white, heterosexual males at the expense of women,
blacks, and homosexuals.
The Persuasion and Characteristics of Individual Judges.
The second strand of realist thought subscribes to the relativistic view (the philosophical
doctrine that all criteria of judgement are relative to the individuals and solutions involved)
that law is nothing more than what a particular court says it is on a given day, and that the
outcome to a legal dispute will vary according to the political, cultural, and religious
persuasion of the presiding judge. Some realists, such as Jerome n. frank, another
prominent thinker in U.S. jurisprudence during the 1920s and 1930s, insisted that a judge's
psychological and personality characteristics also sway the judicial decision-making process.
Justice benjamin n. cardozo of the Supreme Court went so far as to characterize judges as
legislators in robes.The notion that judges legislate from the bench was a revolutionary idea
that flew in the face of orthodox legal thought in the eighteenth and nineteenth centuries.
Alexander Hamilton enunciated the orthodox position when he said the judiciary is the
"least dangerous branch" because it has "neither force nor will, but merely judgment." The
legislature, Hamilton said, has the power to prescribe the rights and duties by which the
country is to be regulated, and the executive has the obligation to enforce these laws
through the power of the sword. The role of the judiciary, Hamilton wrote, is simply to
interpret and apply the laws passed by the other two branches. Hamilton's view resonated
in the opinions of Chief Justice John Marshall, who wrote that "courts are the mere
instruments of the law, and can will nothing" . Judicial power, Marshall said, should never
be exercised for the purpose of implementing the will of the judge. Instead, courts must
exercise their power solely to implement the will of legislators, who, as the elected
representatives of the American people, embody the "will of the law." Hamilton and
Marshall both believed that law is an autonomous body of knowledge independent and
distinguishable from the personal preferences of the judge applying it, and that it is possible
to interpret this body of knowledge in an objective fashion. Adherents to this theory of law
are known as formalists. In the nineteenth century, formalists asserted that state and
federal law constitute a rational system of rules and principles that judges can apply in a
mechanical fashion to reach a clear, certain, and uncontroversial resolution to a legal
dispute.
Society's Welfare.
Convinced that common-law principles can be manipulated by the judiciary, Cardozo was
concerned that instability and chaos would result if every judge followed his or her own
political convictions when deciding a case. To forestall the onset of such legal disarray,
Cardozo and other realists argued that all judges must interpret the law to advance the
welfare of society. In Posner's biography of Cardozo, he quotes him as saying, "Law ought to
be guided by consideration of the effects it will have on social welfare." This theory of law is
known as sociological jurisprudence, and represents the third major strand of thought in
the U.S. legal realism movement. Proponents of sociological jurisprudence encouraged
judges to consult communal mores, ethics, and religion, and their own sense of justice when
attempting to resolve a lawsuit in accordance with the collective good.
Sociological jurisprudence was foreshadowed by English philosopher Jeremy Bentham, who
argued that the law must serve the interests of the greatest number of people in society.
Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the
collective good in terms of pain and pleasure. Judges should decide cases, Bentham
thought, to achieve results that will maximize the pleasure of the majority of the residents
in a given community, without much concern for the pain that might be inflicted on the
balance of society.
A Practical Approach to a Durable Result.
Whereas sociological jurisprudence sought to utilize the common law as an engine of social
reform, legal pragmatism, the fourth strand of realist thought, sought to employ commonlaw principles to resolve legal disputes in the most practical way. Pragmatists argued that a
judge should undertake a four-step process when rendering an opinion. First, the judge
must identify the competing interests, values, and policies at stake in the lawsuit. Second,
the judge must survey the range of alternative approaches to resolving the legal issues
presented by the lawsuit. Third, the judge must weigh the likely consequences of each
approach, considering the effect a particular decision may have on not only the parties to
the lawsuit but also other individuals faced with similar legal problems. Fourth, the judge
must choose a response that will yield the most durable result in the course of the law. This
pragmatic legal philosophy is often characterized as result-oriented jurisprudence.
A Synthesis of Legal Philosophies.
The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four
strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that
law is best explained as a prediction of what judges will do in a particular case. Empiricists,
who were influenced by behaviorists Ivan Pavlov and B. F. Skinner, argued that lawyers can
predict the outcome of legal disputes by examining the judicial behavior of a given court.
The empiricists' efforts to integrate the other four schools of legal realism into one coherent
philosophy was reflected by their belief that judicial behavior can be influenced by political,
economic, sociological, practical, and historical considerations, as well as personal and
psychological prejudices and idiosyncrasies. Lawyers and laypersons who spend more time
studying these elements and less time studying the labyrinth of legal rules and principles
that make up the law, the empiricists concluded, will have a better idea of how a judge will
rule in a particular case.
Oliver Wendell Holmes, Jr : one of the prominent follower of this school was Oliver Wendell
Holmes, Jr., whose work has had an especially powerful impact on American Legal Realist
thought.
The Common Law.
Published in 1881, Holmes’s book The Common Law heavily influenced American Legal
Realist thought. The book commences with Holmes’s famous aphorism: “The life of the law
has not been logic; it has been experience.” The Common Law is susceptible of many
interpretations, and some Realists saw in it a denunciation of all efforts to represent law as
a “science".
"The Path of the Law":
Another of Holmes’s influential works was the essay "The Path of the Law". Written
originally as a speech in 1897, Holmes first turned to the distinction between law and
morals: “The prophecies of what the courts will do in fact, and nothing more pretentious,
are what I mean by the law”. If law is prophecy, Holmes continues, we must reject the view
of “text writers” who tell you that law “is something different from what is decided by the
courts of Massachusetts or England, that it is a system of reason that is a deduction from
principles of ethics or admitted axioms or what not, which may or may not coincide with the
decisions”.
THE BAD MAN THEORY.
Holmes next introduces his most important and influential argument, the “bad-man” theory
of law: “if we take the view of our friend the bad man we shall find that he does not care
two straws” about either the morality or the logic of the law. For the bad man, “legal duty”
signifies only “a prophecy that if he does certain things he will be subjected to disagreeable
consequences by way of imprisonment or compulsory payment”. The bad man concerns
himself only with material consequences. The sharp distinction Holmes draws between law
and morals had a powerful impact on the thought of most Legal Realists, although it too was
construed in a variety of ways. Some thought it justified separating the scientific study of
legal institutions from the distracting discourse of ethics. Others treated Holmes’s argument
as a useful corrective to the confused understanding of law and morality engendered by the
traditional American conception of natural rights, but denounced as superficial and
misleading the positivistic conception of scientific method that their comrades were
extracting from it.
The utilitarian or instrumental flavor of the "The Path of the Law" also found favor with the
realists. The purpose of the law, Holmes insisted, was the deterrence of undesirable social
consequences: “I think that the judges themselves have failed adequately to recognize their
duty of weighing considerations of social advantage”. Before the Civil War, this conception
of adjudication as a form of social engineering had been widely shared by American judges,
but in the late nineteenth century it had fallen out of favor. One of the aspirations of both
Holmes and the realists was to revive it. Holmes drew upon his bad man theory in
developing what for the time was a radical understanding of the nature of contractual
obligations. “The duty to keep a contract at common law means a prediction that you must
pay damages if you do not keep it—and nothing else”. Only “the confusion between legal
and moral” ideas had led others to the conclusion that it was immoral to breach a contract.
An approach that focuses solely on the consequences of breach, Holmes conceded, “stinks
in the nostrils of those who think it advantageous to get as much ethics into the law as they
can”, but it is more accurate and useful, he argued, than an approach that concentrates on
the moral obligations associated with promises. On a more detailed level, Holmes amplified
his earlier criticisms of subjective theories of contractual duties (which grounded obligation
in a “meeting of the minds” of putatively contracting parties), offering instead an objective
theory (which acknowledged that judges do and should give meaning to the language
employed by the parties “because of some belief as to the practice of the community or of a
class, or because of some opinion as to policy”). This characterization provided an important
staging ground for the realists’ assault on the classical ideal of the neutral and selfregulating market economy.
CRITISIZM.
1. Some realists turned Bentham's philosophy on its head, arguing that the law should
serve the interests of the most fragile members in society because they are the least
represented in state and federal legislative assemblies.
2. Focus more of on the judicial system.
3. The judges judge cases according to their likes.
DIFFERENCES BETWEEN THE VARIOUS SCHOOLS OT THOUGHTS.
MARXISM
COMPARATIVE
PHILOSOPHICAL.
REALIST
Marxism builds
on a materialist
understanding of
societal
development.
Comparative
uses systematic
approaches to
attain a deeper
knowledge of
the legal system
in effect.
philosophy of law deals with
philosophy and jurisprudence which
studies basic questions
about law and legal systems, such
as "what is law?", "what are the
criteria for legal validity?," "what is
the relationship between law and
morality?", and many other similar
questions.
Legal realists maintain
that common-law
adjudication is an
inherently subjective
system that produces
inconsistent and
sometimes incoherent
results that are largely
based on the political,
social, and moral
predilections of state
and federal judges.
Satisfies human
needs, not
economic
interests.
Satisfies the
need for
relationship
among nations.
e. g in treaties
formation.
Answers all questions
about the judicial
system.
Believes in the
use of force to
execute its major
aim (to get the
upper class out
of position in
government.)
Focus on the
attainment of a
classless state.
Does not
believe in the
use of force.
This school is concerned with
providing a general philosophical
analysis of law and legal
institutions. The ultimate goal of
reforming the judicial system. It
takes conceptual analysis as its
principal concern
Does not believe in the use of force.
Focus on judicial power of judges.
i.e Satisfies questions and justifies
action carried out through law.
Focus on power and
economics in society,
the persuasion and
characteristics of
individual judges,
society's welfare, a
practical approach to a
durable result, and a
synthesis of legal
philosophies.
Focus on the
study of
difference and
similarities
between the
laws as well as
legal systems of
different
countries.
Does not believe in the
use of force.
CONCLUSION: In my own opinion law can be seen from different angles as to different
group of people, in defining law it is easier to submit that no definition is universally
accepted. But in my view I opt for the Realist school of thought because it focuses on power
and economics in society, the persuasion and characteristics of individual judges, society's
welfare, a practical approach to a durable result, and a synthesis of legal philosophies. It
allows for orderliness, continuity of peace in the society as well as protection of members of
such society.