DIFFERENTIATE
WHY WE NEED LEGAL PHILOSOPHY
R. BARNETT
DO WE NEED LEGAL PHILOSOPHY
R. POUND
Present state of legal philosophy -American legal scholarship of the past several decades has centered
primarily on justifying and advocating the expansion of governmental
jurisdiction and power at the expense of private jurisdiction and liberty.
Private laws that define the nature and scope of individual property rights
have been slighted in favor of public law subjects.
PREVALENCE OF COMMON LAW AND ITS REGARD FOR THE INDIVIDUAL
There is a growing popular dissatisfaction with our legal system. There is
a feeling that it prevents everything and does nothing.
Rights of individuals are treated as simply one “factor” to be balanced
against the “public good” within the scope of “public policy.” (subordinate;
secondary; neglected)
This period of neglect of private rights gave rise to the doctrines of Legal
Positivism and Legal Realism which have been employed by some to expand
State power in all its guises.
LEGAL POSITIVISM –
 A philosophy that conceives of law as the command of the
sovereign.
 Law is law because of who pronounces it, not what is commands.
 Judges have a legal duty to follow the law as it is.
 Any moral duty to refuse to follow an unjust law is an extralegal
affair.
Opposing view to Positivism -[NATURAL LAW –
 Proponents argue that Law has a social function.
No amount of admiration for our traditional system should blind us to
the obvious fact that it exhibits too great a respect for the individual, …
and too little respect for the needs of society, when they come in
conflict with the individual.
Prevailing Laws and jurisprudence show that the right of the individual
to contract as he pleases is upheld by our legal system at the expense of
the right of society to stand between our laboring population and
oppression.
This right of the individual and this exaggerated respect for his right are
common-law doctrines. And this means that a struggle is in progress
between society and the common law. The common law is concerned,
not with social righteousness, but with individual rights only. It tries
questions of the highest social import as mere private controversies
between individuals only which compels a narrow and one-sided view.
Our criminal law is a growing cause of popular discontent with the legal
system with its exaggerated respect for the individual. Litigation is a
game, and the court is viewed as an umpire. The rules are in the
knowledge of the court and will be declared and applied by it as
required. It is for the parties to learn the rules and play the game
correctly at their peril.
There is a fundamental proposition that Law exists for individuals, and
hence is to deal with every question as a contest between individuals,
which shall decide based on individual facts, not arbitrarily, but as like
cases have been adjudged for others, and is to allow partied to fight out
the contest for themselves, and in their own way.

What the Law requires is as important as who decides on the law.
(Substance is as important as process.)
 Therefore, substantive scrutiny of the commands of “law” is needed
to ensure that positive legal commands are truly Law, as opposed in
mere “directives.” (Reason and intent)
LEGAL REALISM –
A judge’s function is to discern and enforce the private rights of the parties
to a dispute.
RECENT YEARS -Shift from Positivist to Natural Law paradigm of rights
Two distinct strains of the movement appeared:
“Modern” Liberals (Neo-Rousseauians) –
a) At times, it is a legitimate part of legal analysis to judge the legality
of State decrees by a normative evaluation of their substance;
b) Acknowledges a judge’s responsibility to strike down statutes when
the legislature goes astray
c) The State may be necessary to protect individuals from each other
d) The State is the ultimate source of social good
“Classical” liberals (Neo-Lockean) –
a) Of the view that individual rights (property rights) are prior to the
State
b) The function of a legal system is to secure the private rights that are
the prerequisites of social order
c) View the State as a/an necessary/unnecessary evil and would limit
the role of the State to formulate and enforce rights
How legal philosophy affects the practice of law -WHY WE HAVE LAW -The institution of law should be viewed as an answer to a fundamental social
problem: How are individuals to peacefully coexist so that each of them may
pursue his or her vision of the good life without getting in the way of the
same pursuit by others?
Rule of Men v. Rule of Law approach to social order -Rule of Men – relies on the discretion of a subgroup of society to create
social order;
Rule of Law – discerns the principles and rules which all persons – including
the “lawmakers” – must follow if social order is to be achieved. (general
application)
Three Dimensions of Law – Legal Theory, Legal Doctrine, Legal Practice
Legal Doctrine –
a) Is what most people identify as law consisting of rules that govern
the conduct of individuals to distinguish right from wrong
b) Is the absolutely vital intermediary step between theory and practice
Legal Theory –
 (focuses specifically on the law in practice; how it functions and
operates within societies; a subset of jurisprudence) e.g., strict
liability in tort.
 Legal theory tells us which of a wide variety of possible rules we
should choose, so that, through the application of these rules, the
Law is capable of governing legal practice.
Legal Practice – The application of legal doctrine to given facts.
Which principles and rules will provide a solution to the most fundamental
problems of coordinating social interaction (which must take account of at
least 3 basic problems: administration, information, production)? ANSWER:
The concept of (private) property… how??
The CONCEPT OF PROPERTY describes the moral jurisdiction that people
have over physical resources in the world to be used in a manner that is free
from the physical interference of others.
 Also includes the human right to one’s body
How does the concept of private property solve the 3 social problems of
administration, information and production?
Administration – private laws (contract, tort, property) entail a decentralized
administration of resource allocation; All decisions concerning the use and
enjoyment of one’s property can be made without external direction,
provided only that the boundaries of others’ rights are discernable and not
violated.
Informational problems – are reduced by the knowledge of the boundaries
of one’s property in relation to others; The acknowledgment of the right to
freely alienate external possessions bring about a price system that assigns a
value to resources. Incentives then can exist to exchange rights to improve
the well-being of the parties to the transaction.
Production – more things of value will be produced by more people making
the material wealth (& spiritual well-being) that much more accessible to
everyone.
WHY WE NEED LEGAL PHILOSOPHY
HOW CAN THERE BE A MORE EVEN BALANCE BETWEEN INDIVIDUALISM
AND SOCIALISM?
Knowing what Law is, we now realize why Private Law categories are so
essential to the institution of law fulfilling its societal function
If legal philosophers and law professors are still getting things wrong by their
preoccupation with Legal Positivism and Legal realism,
 it is very likely that other legal thinkers like judges, lawyers, and
legislatures will produce legal rules – whether by statute or by
judicial decisions – that impede rather than facilitate human wellbeing.
 Worse, they may produce no rules at all.
Without legal philosophy, our private law rights and the process of
adjudication can be made to appear as empty or irrational exercises we have
inherited from our ancient past and blindly continue to follow.
As new generations of legal thinkers continue the task of applying the
insights of legal philosophy to the evolving social problems of our age, then
and only then can legal philosophy touch and guide the activities of lawyers,
judges, legislators, and law teachers.
It does so by informing our choice of legal theories, and thereby, informing
our choice of legal doctrines, so that we might achieve the promise of a free
and prosperous society.
For the author, the remedy is in our law schools. It is in training the
rising generation of lawyers in a social, political and legal philosophy
abreast of our time.
It is said that “Taught Law” is “Tough Law”, but this very toughness is a
danger to the common law and to the state.
It preserves our old legal philosophy and prevents the best educated of
our bar from being children of the present. (Perpetuating old beliefs and
and doctrines that are not responsive to the present needs of the times)
The remedy is a better and sounder philosophy of law. Must not a
philosophy of law founded on a sound knowledge of the elements of the
social and political science of today form a necessary part of the
equipment of the trained lawyer?