LEGAL PHILOSOPHY SCHOOLS OF THOUGHT VOL.

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Jeremy Bentham
Teleological or Natural Law Theory
Principles of Morals and Legislation

Teleological - looks into the principles, purpose, and end (telos) of the
Law is conceived as a set of general commands issued by a sovereign
law.
and backed up with the threat of sanctions.

Law serves a higher universal order or “natural order”.

John Austin
Law is a rational standard for conduct: it is a standard that agents have The Province of Jurisprudence
strong, even decisive, reasons to comply with.
Sovereign
Moral criterion.
To establish the study of law free of entanglement with proposal of its
reform.
Legal Positivism
"The existence of law is one thing; its merit or demerit is another.
Regards law's validity in terms of social convention. A law is a law when
Whether it be or not be is one enquiry; whether it be or be not
backed by the coercive power of the state.
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
Political criterion.
it vary from the text, by which we regulate our approbation and
disapprobation."
David Hume
Legal Positivism Positive Law - is a general rule of conduct laid down by a political
superior to a political inferior.
Error of improperly trying to derive an "ought" from an "is."

What law “is” is different from idealized law or what the law “should be”
(separability thesis).

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Hans Kelsen
Pure Theory of Law
Objective of making law into a "science.”
Wanted to separate “legal science” from “legal politics”, which
compromises law based on what is politically correct.
Argues that subjects or citizens voluntary obey the laws of the land
because they accept as valid the rulemaking institution's claim to the
exercise of authority.
Rule of Recognition - recognized as conclusive and valid.
Rules of Change - reference to legislation to make and repeal rules.

Rules of Adjudication - procedure to be followed to resolve legal

Thomas Hobbes disputes.
Legalism or “Rule by the Law”

Leviathan Confucianism
Political Theory and Rectification of Names
Rule by the Law, where there is no need for precedent, rules of
procedure, or processes that the lawmaker himself must abide to. Teaches regard for hierarchy and the bond between the ruler and the
subject, which supports legalism.

Herbert Hart
Rule of Recognition
Interpretivist or Constructivist Theory

"Specify some feature or features possession of which by a suggested

Based on the actual practice of the community.
rule is taken as a conclusive affirmative indication that it is a rule of the
group to be supported by the pressure it exerts."
Ronald Dworkin
The basic role or nature of Rule of Recognition is established by the Interpretivist Approach and “Best Fit Theory”
legal system's being a normative system: a structured system of
"ought" statements. Assumes that an awareness of the concept of law is necessary for the
existence of law in any society.

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Law is an interpretative practice which exists only in societies which are

Law has been the means to enshrine and coercively impose the wishes of
aware of the nature of that practice and of its interpretative character,
the dominant group or institutions.
and thus possess the concept of law.

Best Fit Theory - principles and rights are not something already laid
down by natural law, but something still to be “constructed” by the
adjudication of judges, faced by novel claims to “best accommodate the
community’s common convictions”.
Roberto Unger
Hegemony, Deconstruction, and Hermeneutics of Suspicion
Hegemony - leadership or dominance, especially by one country or
social group over others.

Realist or Pragmatist Theory Hermeneutics - the branch of knowledge that deals with interpretation.

Since law was created by man, it is also subject to human imperfections,
eccentricities, weaknesses, and foibles.
Law is indeterminate. (Law as found in codes and jurisprudence does
not always determine the outcome of a dispute.)
Challenged societies to rethink their ideas of rights and emancipation
and to continuously imagine, revision, envision, and experiment with
structural arrangements, with the goal of creating more opportunities for
more people.

Historical Approach
Justice Oliver Wendell Holmes
The Path of Law
Law has a past and a progression.
"The life of the law has not been logic; it has been experience."
Freidrich Karl von Savigny
The Bad Man Model - in examining the law or deciding a case, always The Volksgeist
think from the perspective of the bad man, not the good man. The bad
man, at the end of the day, cares only for the consequences of the law, Volksgeist - is the spirit of the people.
of what the courts will do to him, and the rest is irrelevant. The source of law is the instinctive right possessed by every race.

Law is written and updated as people evolve.

Critical Legal Theory

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William James
Sir Henry Sumner Maine Law as a means to satisfy needs.
Legal History Theory

Legal institutions must be studied historically to be understood. Émile Durkeim

Theory of Legal Change

G. W. F. Hegel As society progresses from simple to complex the role of law changes.
Dialectic Idealism and the Philosophy of Law Theory of legal change from "repressive" to "restitutive" law.

The state is the product of converging historical forces.

Charles Louis Baron de Montesquieu
Freedom is the must of history. Adapting law to shifting conditions.

Evolution: "Nothing is, all becomes."

R. Von Jhering
Thesis with Antithesis to form a Synthesis. Law as a method of ordering society composed of competing
interests.
Thesis - basic situation or concept.
Legal rules must be used to resolve and harmonize, rather than
Antithesis - contradiction. provoke or exacerbate conflict.

Synthesis - resolution to the contradiction.

Roscoe Pound
Functional or Sociological Approach The scope and purpose of socio-logical jurisprudence
A coherent society must have a pattern of culture that determines its
Functions of Law - in relation to society, law may serve as a tool for ideology.
social control, dispute resolution, and social change.

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Law is an institution to satisfy social wants, by ordering human conduct Eugen Ehrlich
through a politically organized society with a systematic and orderly The Living Law
application of force.
Positive Law which looks at "law" as the sum of statutes and court
pronouncements could not capture the legal reality of a culture or
Max Weber society.
Typology of Law
The Living Law - societal norms that regulates social relationships and
Legal Study of Law internal structures meaning and scope helps strengthen society.

Sociological Study of external or empirical role or impact Legal norm must follow actual social norms and be a “living law.”
Law effects of the
application of law to
society John Rawls
The Sociological School

Made Typology of Law into rational (logical, scientific) and irrational

"Justice as Fairness" recommends equal basic rights, equality of
(emotional, superstitious).
opportunity, and promoting the interests of the least advantaged
members of society.
Criticized the institutionalization and bureaucratization of laws that have
become unresponsive to concrete situations.
"Original Position", in which people select what kind of society they
would choose to live under if they did not know which social position
they would personally occupy.

Roberto Mangeira Unger

Cultural Context Theory Utilitarian Approach

Held that law must have a cultural context to support it. "Greatest happiness theory."

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An act is good if it contributes to the overall utility, i.e. promoting

Utilitarianism, Law, and Authority
happiness or pleasure to the most number of persons.
A state is entitled to authority if and only if it promotes more happiness,
Jeremy Bentham good will, and common benefit for the greatest number.
Felicific Calculus
The attainment of justice, virtue, character, the advanced forms of
Pleasure - good. human culture, and the development of an individual's full potential are
Pain or Misery - evil. legitimate goals to pursue which take precedence over the purely
sensory or selfish pleasures.
Two minutes worth of pleasure is twice as good as a minute's pleasure;
while two pleased persons is doubly better than one pleased person. Qualitative.

Felicific or Hedonic Calculus - formula in computing the units for Happiness is not sought; it spontaneously happen.
happiness. Happiness is something that can be calculated.
Involve yourself in something that you are passionate about.
Empirical in nature.

Quantitative. Henry Sidgwick

Act and Rule Utilitarianism
Seven Factors to Calculate Happiness: (1 - 4 Individual; 1 - 7 Group)
1. intensity; Act Utilitarianism - one ought to do those acts that produce the
2. duration; greatest good to for the greatest number.
3. certainty; Rule Utilitarianism - follow the right rule appropriate to the situation
4. propinquity; you are in then adopt the rule which will produce the greatest good or
5. fecundity; happiness for the greatest number.
6. purity; and
7. extent.
Economic Approach

John Stuart Mill

Richard Posner

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Economic Jurisprudence and Consequentialism
Purpose of law is to increase the balance of happiness in society
through “wealth maximization.”
Wealth Maximization - is the sum of all tangible and intangible goods
and services, including the value of rights.
Freedom has no price.
Legal Formalism or Conceptualism
Holds that law is a strict science governed by formal axioms, legal
principles, and rules of logic.
"Law is a set of rules and principles independent of other political and
social institutions."
Law consists of rules and principles; and that these rules can be applied
in any particular set of facts or case.
Formalism adheres to judicial restraint that constraints a judge from
deciding or opining on what the law should be or should mean other than
what the law says or does not say.
Equity of a Statute - a rule in statutory construction which admits within
the operation of a statute a class of cases that are neither expressly
named or excluded, but which, from their analogy, penumbra, or ejusdem
generis are within the intent or coverage of the law.
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Jeremy Bentham
Originalism or Textualism or the Plain Meaning Approach
Originalism - considers the “original intent” of the drafters, or the
“original meaning” based on what reasonable persons at the time the
law was written declare the law to mean in its “initial framework.”
Says that judges should only “interpret,” not “construct.”
Antonin Scalia
Contemporary Originalism
Advocated for judicial restraint in profounding new rights or obligations
not otherwise intended by the Constitution or the law, or worse,
contrary to the Constitution or the law.
Policy Science School
Harold Lasswell and Myres Mcdougal
Legal Education and Public Policy
Realist idea of using social scientific expertise as a way of enabling
legal officials to produce effective and desired results.
Policy Science - Science of Social Values
The representative of social values or desirable objects of human
desires are:
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1. Power; 5. Ethical or Moral - appealing on the ethos or ideals of a government;

(teleological) and
2. Knowledge;
6. Prudential - according to exigencies and the calculus of costs and
3. Respect; benefits.

4. Income or Wealth; and

5. Safety or Health.

These social values are technically denominated under the single term
"policy."

Legal Practice Theory

Philip Bobbit
The Six Main Modalities:

1. Historical - which must be used when the intention is to decipher

what was really meant by the framers of the law;

2. Textual - looking for what the law simply declares or denies and how
it can be interpreted in contemporary times;

3. Structural - inferring rules from structures and mandates;

4. Doctrinal - applying rules generated by precedent;