Theories of law and legal theories

By: Atty. Daryl Bretch M. Largo, ab posc, llb, llm

"Justice is the first virtue of social instiutions." - Rawls, a theory of justice (1971)

"A lawyer with his briefcase can steal more than a hundred men with guns."
-Mario Puzo, The Godfather

"It is the lawyers who run our civilization for us- our governments, our business, our private lives. Most legislators
are lawyers; they make our laws. Most presidents, governors, commissioners, along with their advisers and brain-
trusters are lawyers; they administer our laws. All the judges are lawyers; they interpret and enforce our laws. There
is no separation of powers where the lawyers are concerned. There is only a concentration of all government power
- in the lawyers."
-Fred Rodell, Woe Unto You, Lawyers

Theories of law vs. legal theories

Theory of law -"law of the case"

-a component of Philosophy of Law, theory of
law attempts to answer the ff basic questions:
 What is law?
 what is the nature of law?
Theories of law
-"ours is a government of LAWS and not of
men"
-Preamble: "... and to secure to ourselves the
blessings of democracy under the rule of law,
and a regime of truth, justice, freedom..."
-"common law" vs. "civil law"
-international law as part of the law of the
land"
-"family law, criminal law, commercial law"
-"foreign law vs domestic law"
-..."unless otherwise provided for by law"
-"ignorance of the law excuses no one from
compliance therewith"
Legal theory
-within the domain of law and jurisprudence
-more on "legal or judicial reasoning" or "legal
thinking and justification"
-may also be called "applied philosophy of
law";
-others refer to this as properly called
"jurisprudence" (as distinguished from "case
law")
-in most cases, the study of "theories of law"
and the study of "legal theories" are
interrelated

General vs. specific notion of law

 Felipe Sanchez Roman (1850-1916)
-law in “general sense”: “the science of moral rules, founded on the rational nature of man,
which govern his free activity, for the realization of the individual and social ends, of a
nature both demandable and reciprocal.”

- Law in its “specific sense”: “a rule of conduct, just, obligatory, promulgated by the
competent authority for the common good of a people, or nation, which constitutes an
obligatory rule of conduct for all its members"

General classifications of law

 JURAL LAW
1. PARTICULAR SENSE (specific rule of a statute or court opinion)
2. COLLECTIVE SENSE (branch of law or system)
3. ABSTRACT SENSE (precepts and ideals)
 NON-JURAL LAW
1. Divine law
2. Natural law
3. Moral law
 4. Physical law

Major Theories of Law:

 Natural Law Theory
o Traditional
o Modern
 Legal Positivism
 Legal Realism

Natural law theory

 Traditional natural law theory suggests that the validity of laws (that are man-made) is
tested on the basis of some “higher law”, such as reason, morality, or divine law. (Cicero,
Plato, Aquinas, etc.)
 Modern natural law theory assails the validity of legal positivists propositions. Because this
theory is more of refutations to legal positivists, rather than its relation to the thinking of
Aquinas, etc., this is sometimes called modern natural law theory.
“Any man can make mistakes but only an idiot persists in his error”
–Marcus Tullius Cicero

Traditional Natural Law Theory

 Cicero [106 BC-43BC] (republic):
"True law is right reason in agreement with nature; it is of universal in agreement with
nature; it is of universal application, unchanging and everlasting; .... it is a sin to try to alter
this law nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it
entirely'
-Cicero, therefore, believes that some norms are INHERENT and UNIVERSAL

 St. Thomas Aquinas [1225-1274]:

-positive laws that are just “have the power of binding in conscience”.
- a “just law” is one that is consistent with natural law, that is, it is “ordered to the common
good”.
-“every human law has just so much of the nature of law, as it is derived from the nature of
law. But if in any point it deflects from the law of nature, it is no longer a law but a
perversion of law”

Modern natural law thoery

 Lon Fuller (the morality of law, 1964)
 Law is seen as “guiding principle”, a tool, a means to an end
 To be called “law”’ it must comply with certain criteria(“internal morality”):
laws must be general, promulgated (announced), should not be retroactive,
understandable, not contradictory, should require reasonable conduct,
constant through time, administered as announced
Separability thesis: law is different from morality
What may be legal may not be necessarily moral
And what may be moral may not be necessarily legal
  Ronald Dworkin: (law’s empire [1986]; taking rights seriously [1987] [“political and
moral right theory”]
-laws include not just the norms found in treaties, customs, constitution, statutes,
and cases, but also moral principles that provide the best justification for the
norms found there.
-he observes that the things justified by moral principles are socially constructed
but the justifications (arguments) themselves are not.
-he offers “interpretative approach” to law such that for m “legal claims are
interpretative judgements and therefore combine backward-and-forward-looking
elements.”

Legal positivism
 Presupposes two principles:
1. Law is a “social fact or convention”;
2. There is no necessary connection between law and morality (separation of
law and morality [separability thesis])

 Thomas hobbes, jeremy bentham, john austin

- Laws are constructed from commands, threats and obedience. (Command theory)
- Laws are handed down by a “sovereign” back by threats of force
- The “sovereign” is a person or group who enjoys the habitual obedience of most others
but does not habitually obey anyone else (leslie green)

John Austin (“father of legal positivism”) [1790-1859]:

"The existence of law is one thing; its merit or demerit is another. Whether it be or
not be is one enquiry; whether it be or be not conformable to an assumed standard, is a
different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or
though it vary from the text, by which we regulate our approbation and
disapporobation."

 H.L.A Hart (the concept of law, 1961, 1994,2012):

"There is no necessary connection between law and morals"

"It is in no sense a necessary truth that laws reproduce or satisfy certain demands of
morality"
- Hart believes that anything in the law is there because some person or group put it there,
intentionally or accidentally; it all has history and it can be changed; is either known or
knowable; some of our laws have good justifications and some do not, and justifications
do not anyway suffice to make law. To do that, we need human intervention: orders
need to be given, rules need to be applied, decisions to be taken, customs to emerge, or
justifications to be endorsed or asserted. Laws are "posited" (fixed. [Leslie Green on
H.L.A Harts' The Concept of Law]
- Contrary to the view of Hobbes, bentham, and austin, however, H.L.A hart does not
believe that laws are but commands from a sovereign. Hart speaks of laws as consisting
of rules, including practices and customs. He believes that there are laws that are not
coercively enforced (sanction-free laws)
- HLA hart believes that all legal systems have “primary rules” and “secondary rules”.
- Leslie Green on H.L.A. Hart's The Concept of Law:
"The fact that a policy would be just, wise, efficient, or prudent is never sufficient
reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
 inefficient or imprudent is never sufficient reason for doubting it. Accdg to positivism,
law is a matter of what has been posited (order, decided, practiced, tolerated, etc.)"

 Hans kelsen (pure theory of law, 1967)

- Kelsen is a positivist theorist, but claims that while laws were “posited”, there were
“presuppositions” to laws that made them valid (by “validity”, Kelsen refers to
“acceptability” of laws by the governed).
- Kelsen believes in the idea that there is a hierarchy of norms beginning front the “basic
norm” where all other norms are related to each other

Positivist: law and morality are separate

Legal realism
Oliver wendell holmes, jr. (“the path of the law”, 10 harvard law review 457, 1897):
- Law is “a body of dogma or systematized prediction”
- “The prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law”

On “law” and “morality”

- the bad man theory (the law is what the bad man thinks it is)

Oliver Wendell Holmes, Jr’s “the bad man theory” (also known as “prediction theory”)
“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for
the material consequences which such knowledge enables him to predict, not as a good one, who
finds his reasons for conduct, whether inside the law or outside of it, in the vaguer concept of
conscience."

Major legal theories

 American legal realism (skepticism)
 Legal formalism
 Constructivism
 Critical legal studies

Legal realism (skepticism)

 American theory of law (led by O.W Holmes Jr.)
 Legal realists take a “realistic” look at how judges decide cases, at “what the courts… do in
fact” (o.w. Holmes, jr.)
 Lawyers recognize that judges are influenced by more than legal rules, they decide cases
accdg to “how facts of the cases strike them”; that judges openly consider the policy
implications of legal rules and decisions. (Brian leiter)
 Law and is in some point “rationally indeterminate”;
 Dinstinctly american: “the constitution is what the supreme court says it is.” – president
eisenhower
 Legal realists often criticize “formalism” (of christopher langdell) in law
 American legal realists argue that, unlike classical legal theorists, legal reasoning is not
independent from moral and political considerations.
 Holmes believe that lawyers and judges are not logicians and mathematicians. “The life of
the law has not been logic: it has been experience.” Necessities of the time, the prevalent
moral and political theories, intuitions of public policy, and even the prejudices which judges
share with their fellow-men, better determine the rules by which men should be governed.
  Legal realists are often criticized for favoring "Judicial Activism" (as opposed to "Judicial
Restrain"), where judges base their decisions on their personal and political considerations
rather than the law.
 Legal rules and reasons figure simply as post hoc rationalizations for decisions reached on
the basis of non-legal considerations. (Brian Leiter)

Legal formalism
 A positivist theory of law, it focuses on the role of judges, that they must be constrained in
interpreting and applying the law. It is the theory of legal justification
 For a formalist, a law is already the product of normative and policy consideration in the
formation of the law. Hence, a judge should not say what the law should be but should
confine itself to what the law is.
 Justice Antonin Scalia: (a magter of interpretation, 1997)
“of all the criticisms leveled against textualism, the most mindless is that it is formalist. The
answer to that is, of course it’s formalistic! The rule of law is about form… a murderer has
been caught with blood on his hands, bending over the body of his victim; a neighbor with a
video camera has filmed the crime and the murderer has confessed

Constructivism or interpretivism
-advanced by ronald dworkin, this legal theory argues that judges decide, not because it is
what the law mandates, but because it is what is required by some standards of “morality”
or “justice” that made up or formed the norm or law, the same standards that provide for
the justification of the norm(although they are not found in the law)
-see “riggs vs palmer” (Us CA Case 1889)
Majority: penned by J. Earl; dissent: j. Gray
- Ronald dworkin uses riggs case to demonstrate judicial reasoning by “interpretivism”
and as against positivism.

Critical legal studies (cls)

 Cls advocates believe in the “inadequacy of the law” or “emptiness of the law”; that statutes
and case law cannot definitely determine the outcome of the case (“legal indeterminacy”;
 Seeing “rights” as correlative (every entitlement of right is limited by the competing rights of
others), cls argued that the liberal ideals of freedom cannot actually be realized in a legal
regime and that efforts to realize them will only result in doctrines that will always remain
debatable
 The grant of “property right” (in instrumentalism), simply confers
power over others = coercion of consent
 Cls also believes that “law is politics”, (marxist theory)