LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

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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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

Hans Kelsen  Argues that subjects or citizens voluntary obey the laws of the land
Pure Theory of Law because they accept as valid the rulemaking institution's claim to the
exercise of authority.
Objective of making law into a "​science​.”
Rule of Recognition​ - recognized as conclusive and valid.
Wanted to separate “legal science” from “legal politics”, which
compromises law based on what is politically correct. 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
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 
Interpretivist Approach and “Best Fit Theory”
The basic role or nature of ​Rule of Recognition​ is established by the
legal system's being a ​normative system​: a structured system of Assumes that an awareness of the concept of law is necessary for the
"ought" statements. existence of law in any society.

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

Law is an interpretative practice which exists only in societies which

Critical Legal Theory 
are aware of the nature of that practice and of its interpretative
character, and thus possess the concept of law.
Law has been the means to enshrine and coercively impose the wishes of
the dominant group or institutions.
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 Roberto Unger 
the community’s common convictions”. Hegemony, Deconstruction, and Hermeneutics of Suspicion

Hegemony​ - leadership or dominance, especially by one country or

Realist or Pragmatist Theory 
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.)
social group over others.
Hermeneutics​ - the branch of knowledge that deals with interpretation.
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.

Justice Oliver Wendell Holmes 

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

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

Functional or Sociological Approach 

The source of law is the instinctive right possessed by every race.

Functions of Law​ - in relation to society, law may serve as a tool for

Law is written and updated as people evolve.
social control​, ​dispute resolution​, and ​social change​.

Sir Henry Sumner Maine  William James 

Legal History Theory Law as a means to ​satisfy needs​.

Legal institutions must be studied historically to be understood.

G. W. F. Hegel 
Dialectic Idealism and the Philosophy of Law
The state is the product of converging historical forces.
Émile Durkeim 
Theory of ​Legal Change
As society progresses from simple to complex the role of law changes.
Theory of legal change from "​repressive​" to "​restitutive​" law.

Freedom​ is the must of history. Charles Louis Baron de Montesquieu 

Adapting​ law to shifting conditions.
Evolution​: "Nothing is, all becomes."

Thesis with Antithesis to form a Synthesis. R. Von Jhering

Law as a method of ​ordering society​ composed of competing
Thesis​ - basic situation or concept. interests.

Antithesis​ - contradiction. Legal rules must be used to resolve and harmonize, rather than
provoke or exacerbate conflict.
Synthesis​ - resolution to the contradiction.

Roscoe Pound 
The scope and purpose of socio-logical jurisprudence

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

A coherent society must have a pattern of culture that determines its

ideology. Eugen Ehrlich 
The Living Law
Law is an institution to satisfy social wants, by ordering human conduct
through a politically organized society with a systematic and orderly Positive Law​ which looks at "law" as the sum of statutes and court
application of force. pronouncements could not capture the legal reality of a culture or
society.

Max Weber  The Living Law​ - societal norms that regulates social relationships
Typology of Law and helps strengthen society.

Legal Study of Law internal structures meaning and scope Legal norm must follow actual social norms and be a “living law.”

Sociological Study external or empirical role or impact

of Law effects of the John Rawls 
application of law to The Sociological School
society

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

(emotional, superstitious). Utilitarian Approach 

Criticized the institutionalization and bureaucratization of laws that "Greatest happiness theory."
have become unresponsive to concrete situations.
An act is good if it contributes to the overall utility, i.e. promoting
happiness or pleasure to the most number of persons.
Roberto Mangeira Unger 
Cultural Context Theory Jeremy Bentham 
Felicific Calculus
Held that law must have a cultural context to support it.

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

Pleasure​ - good. Rule Utilitarianism​ - follow the right rule appropriate to the situation
Pain or Misery​ - evil. you are in then adopt the rule which will produce the greatest good or
happiness for the greatest number.
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.
Economic Approach 
Felicific or Hedonic Calculus​ - formula in computing the units for
happiness.
Richard Posner 
Economic Jurisprudence and Consequentialism
John Stuart Mill 
Utilitarianism, Law, and Authority Purpose of law is to increase the balance of happiness in society
through “wealth maximization.”
A state is entitled to authority if and only if it promotes more happiness,
good will, and common benefit for the greatest number. Wealth Maximization​ - is the sum of all tangible and intangible goods
and services, including the value of rights.
The attainment of justice, virtue, character, the advanced forms of
human culture, and the development of an individual's full potential are Freedom​ has no price.
legitimate goals to pursue which take precedence over the purely
sensory or selfish pleasures.

Legal Formalism or Conceptualism 

Henry Sidgwick 
Act and Rule Utilitarianism Holds that law is a strict science governed by ​formal axioms​, ​legal 
principles​, and r​ ules of logic​.
Act Utilitarianism​ - one ought to do those acts that produce the
greatest good to for the greatest number. "Law is a set of rules and principles independent of other political and
social institutions."

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

Law consists of rules and principles; and that these rules can be applied
in any particular set of facts or case. Policy Science School 

Formalism​ adheres to judicial restraint that constraints a judge from

Harold Lasswell and Myres Mcdougal 
deciding or opining on what the law should be or should mean other than
Legal Education and Public Policy
what the law says or does not say.
Realist idea of using social scientific expertise as a way of enabling
Equity of a Statute​ - a rule in statutory construction which admits within
legal officials to produce effective and desired results.
the operation of a statute a class of cases that are neither expressly
named or excluded, but which, from their analogy, penumbra, or ejusdem
Policy Science​ - Science of Social Values
generis are within the intent or coverage of the law.
The representative of ​social values​ or desirable objects of human
Jeremy Bentham  desires are:
Originalism or Textualism or the Plain Meaning Approach
1. Power;
Originalism​ - considers the “​original intent​” of the drafters, or the
“​original meaning​” based on what reasonable persons at the time the 2. Knowledge;
law was written declare the law to mean in its “initial framework.”
3. Respect;
Says that judges should only “interpret,” not “construct.”
4. Income or Wealth; and

Antonin Scalia  5. Safety or Health.

Contemporary Originalism
These ​social values​ are technically denominated under the single
Advocated for judicial restraint in profounding new rights or obligations term "​policy​."
not otherwise intended by the Constitution or the law, or worse,
contrary to the Constitution or the law.

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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT ​プカイ

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;

5. ​Ethical or Moral​ - appealing on the ethos or ideals of a government;

(teleological) and

6. ​Prudential​ - according to exigencies and the calculus of costs and

benefits.