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Classic Legal Theorizing

Oct 5, 2023
Lecture notes

Starting this week, we will be studying a variety of legal theories. Most people hate legal
theories. I spaced out a lot in class when I was taking courses like jurisprudence and legal
theories.

It is perhaps too early for you to study legal theories when you don’t really know much about the
law and the legal system yet. But in the meantime, it is important for you to know at least some
legal theories to understand the law better. In other words, studying legal theories early in your
academic journey will help you think critically about the law and the legal system.

Let me challenge you by asking you one simple question again: what is law? [I will encourage
you to take a few minutes to think about this question before you continue reading – what did we
discuss in our previous lectures?].

Is “what is law” really a simple question?

In fact, the problem of defining law is the subject of extensive theoretical legal scholarship. It is
concerned with fundamental questions such as: Is law simply a vast body of rules found in law
libraries? Can law be better understood as an authoritative process of dispute resolution? What is
the relationship of law to questions of justice, fairness and equity, rights, power and democracy?
How should the law relate to those important questions and how does it relate in practice? What
does law achieve and how can it be improved? Not surprisingly, there is an enormous range of
answers to these questions.

From our previous learning, we know that law is everywhere. Law directly or indirectly
influences how we live our lives and our relations with others. We know that the pervasiveness
of law gives rise to many definitions and different understandings of law. And our
understandings of law differ when we look at law from different theoretical perspectives.

We are well-served by understanding law as formal rules that structure or regulate individual
behaviour, our social relations and relations with institutions. These rules are used within the
legal system to resolve disputes.

Even if we define laws very narrowly as state laws, and see laws as developed according to an
internal logic that lawyers and judges must master, we still cannot deny the fact that laws and
legal processes are also the product of broader historical, social, cultural, economic, political and
public policy circumstances and forces. And that’s why it is also important to look at
interdisciplinary legal theories, which attempt to address fundamental questions about the nature
and purpose of law by examining the relationship of law to other social and institutional
practices. It is an “external” approach that attempts to define law by describing its relationship to
social and cultural, economic and political and policy contexts.

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We will also talk a little bit about jurisprudential conceptions of law, so you got to know the
differences between the two approaches.

Traditionally, the branch of legal scholarship concerned with questions about the definition,
meaning, and purpose of law is called jurisprudence. Jurisprudential approaches to law tend to
focus on defining the necessary qualities or conditions that determine when law exists. Meeting
these qualities or conditions makes law legitimate and in turn creates an obligation for all people
to obey the law. Jurisprudence therefore adopts an “internal” approach, in that it examines the
internal qualities of law that reflect its integrity, rather than defining it in relation to its external
contexts. In other words, this approach looks to the principles and logic of law itself for
explanations.

Evolution of Legal Systems

Before we move to legal theories, I will very briefly talk about the evolution of legal systems
because many law and society theorists try to explain how contemporary law differs from
traditional law, and we need a bit more information about these differences before we go too
deep.

The first thing we need to know is, a formal legal system is not always necessary. In some places
in this world, people have the ability to organize their everyday interactions without a formal
legal system. And a formal legal system is not necessarily better than an informal legal system in
governing people’s everyday lives. Think about the wisdom of Indigenous legal orders within
each community in Canada—many legal scholars have recognized that there is so much we can
learn from Indigenous legal orders in terms of governing our society, protecting our
environment, and settling our disputes. I am not trying to romanticize informal legal systems,
and I am aware that there are many problems embedded in each system of laws, but what I am
trying to caution against is the assumption that the formal legal system is more advanced and
fairer than informal legal systems.

Your textbook has provided a very powerful example to make this point. The authors mention
that in an isolated island in the middle of the South Atlantic Ocean, a few hundred people live
there, growing potatoes and catching fish. When social scientists visited the island in the 1930s,
they were amazed to see how law abiding these people were, even though they had nothing
resembling the law, or the formal legal system, as we know it. There was no serious crime on the
island that anyone could recall, no police, courts, jails, or judges. There was no need for such
controls. People in the community relied on informal mechanisms of social control such as
shaming and open disapproval, which can be effective and severe in their own way.

Small communities such as this remote island with little division of labour and a high degree of
solidarity tend to function quite well with informal legal systems.

But when it gets more complicated, when people come from outside and move around, when
there is a high division of labour, when social relations become much more complicated because
of globalization, urbanization, and modernization, informal mechanisms may not be sufficient in

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governing people’s behaviour. To deal with the complicated society, formal codified law
becomes necessary. As a society becomes larger and more complex, so, too, does its legal
system. The presence of some kind of formal laws and legal systems become essential to
maintain social control.

There are, according to Pound and other legal scholars, three types of legal systems: traditional
legal systems, transitional legal systems, and modern legal systems. And I have concerns about
this perspective of seeing the evolution of the law in a linear way.

(1) Traditional legal system

Your textbook uses “traditional societies” to refer to the societies where traditional legal systems
work best. I am aware of the postcolonial critiques of Eurocentric understandings of law and of
society, so I am very reluctant to use “traditional” to refer to any kind of society. The problem of
using “traditional” to describe a society or a legal system is that this kind of thinking is based on
the assumption that these societies and legal systems are static and don’t evolve, while at the
same time recognize or even highlight the development of the so-called modern societies and
modern legal systems. This approach is so unfair and will only lead to misunderstanding of
cultures and societies that are different from western societies.

Again, let’s use indigenous legal orders in Canada as an example. Law within Indigenous
communities can be found in a number of different places. Oral stories or oral narratives have
been a very important component of Indigenous laws, and there are many stories being passed on
from generations to generations. By looking at stories, we can see law in the way people solve
problems, resolve conflicts, make decisions as a group, create safety, maintain or repair
relationships, and act on their responsibility to each other.

Some people may question whether stories are reliable sources of law because stories can change
from one telling to another. But according to Professor John Borrows, a leading Indigenous legal
scholar in Canada, modification of these stories recognizes that context is always changing,
requiring a constant reinterpretation of many of the account’s elements. Indigenous stories take
this form because there is an attempt to convey contextual meaning relevant to the times and the
needs of the listener. While the timeless components of the story survive as the important
background for the central story, its ancient principles are mingled with the contemporary setting
and with the specific needs of the listeners. This allows for a constant recreation of First Nations
systems of laws.

So, the main point here is the legal systems in these societies are constantly evolving as well, and
that’s why I don’t feel comfortable using the term “traditional.” For the lack of a better
terminology, I think I will just say these are societies that tend to rely on kin leaders, elders, or
religious leaders for authority and governance.

Laws in these societies are not written or codified. They mostly rely on unwritten norms. The
functions of law in these societies are essentially the same as those in the so-called more
advanced societies. These legal systems help to coordinate interaction, settle disputes, and deter
or sanction deviance.

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(2) Transitional legal systems

Transitional legal systems are found in societies in which the economic, educational, and
political subsystems are increasingly differentiated from kinship relationships. In the transitional
stage, most of the features of the modern legal system are present, but not to the same degree.
Law becomes more differentiated from tradition, customs, and religious dogma. The distinction
between public law and private law becomes more pronounced, and criminal law also becomes
distinguishable from torts, as well as the differentiation between procedural and substantive laws.
The roles of judges and lawyers become institutionalized, requiring specialized training. Written
records of court proceedings become more common.

Transitional legal systems also see the emergence of explicit police roles and also of legislative
structures. This results in a separation of powers, meaning that the political authority of the state
is divided into legislative, executive, and judicial powers. Separation of powers refers to the
division of government responsibilities into distinct branches to limit any one branch from
exercising the core functions of another. This is a core concept in administrative law.

(3) Modern Legal Systems

In modern legal systems, we find all the legal components of transitional systems, but in greater
and more elaborate arrangements. Laws in modern legal systems are extensive networks of local
and national statutes, private and public codes, crimes and torts, common and civil laws, and
procedural and substantive rules.

Modern legal systems tend to have more legislations; and there are also clear hierarchies of laws,
ranging from constitutional codes that govern a whole society to regional and local codes that
have more limited application geographically. Cases unresolved in lower courts can be argued in
higher courts that have the power to reverse lower court decisions.

Inherent in modern legal systems is the notion of modern law. The legal systems of modern
societies have the following features: The same rules and regulations are applicable to everyone.
Its application is predictable, uniform, and impersonal. It is based on written rules. The system is
rational and run by full-time professionals. The legal system is also amenable, which means it
can be changed if necessary. It is also political. Finally, there is a clear separation of powers in
modern legal systems.

Jurisprudential Conceptions of Law

Let’s now consider some of the theories accounting for those developments. And I would like to
once again remind you of the fact that law is a very Eurocentric area of scholarship. Law reflects
very Eurocentric worldviews. So keep this in mind when we discuss legal theories and theories
of law and society and think critically about what these legal theorists say about law.

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As we discussed earlier, jurisprudential approaches to the definition of law focus on the internal
qualities of laws that make them appear valid and authoritative. We will focus on three different
streams—natural law, legal positivism, and law, rights, and justice.

(1) Natural Law

Early European theorists considered law as an absolute and autonomous entity, unrelated to the
structure and function of the society in which it existed. The idea of natural law forms the basis
for this understanding and can be traced back to ancient Greece. The idea of natural law is based
on the assumption that the nature of human beings can be known through reason, and that this
knowledge can provide the basis for the social and legal ordering of human existence. Natural
law is considered superior to enacted law.

Some legal scholars argue that, despite the technical complexity of law, law is fundamentally
concerned with right and wrong. Many would argue that there is a necessary connection between
law and morality.

When enacted law does not align with the principles of natural law, the enacted law is considered
unjust. Some ancient philosophers went so far and claim that law and morality are essentially
identical or so closely related that immoral law is not really law at all. In their opinion, the law
created by judges and legislators in any particular country or what they call “positive” law must
conform to natural law, meaning universal and unchanging moral principles. If positive law fails
to conform to natural law principles, it fails to be true or legitimate law.

For many, natural law theory provides a compelling approach to defining what laws are
“legitimate” or binding, but there are difficulties with this approach. I want you to take a minute
or two to think about the potential problems of this approach.

While we may agree that law usually bears some relationship with morality, that relationship can
vary and law and morality are not identical. First, morality is only concerned with right and
wrong, good and evil; law is concerned with many things that do not involve these matters.

Another problem is that moral judgement and principles are often vague, understood as broad
principles and general ideas. Law, on the other hand, is required to be specific. For example,
when are children old enough to be held responsible for criminal actions? Morally, it depends on
the child’s rate of development; legally, certainty and consistency require that a line must be
drawn at a specific age below which a child cannot be held liable. Moral principles may help to
define the general approach to these issues, but they are not very useful in drafting specific laws.

A further difficulty with relying on moral principles to define the legitimacy of particular laws is
discerning those principles that are truly universal. Which moral principles can be relied upon as
the basis for judgement and which ones are cultural or privileged constructs? What’s more,
dominant moral principles change, especially in a modern global context. Morality varies
between cultures, is influenced by the circumstances of power, and is dependent on individual
subjective views. Moral philosophers themselves disagree about the correct evaluation of the

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morality and ethics of actions. For these reasons, moral principles are often uncertain. Law,
however, is supposed to be clearly discernible and objective.

(2) Legal Positivism

Another tradition of the jurisprudential approach is legal positivism, which is very different from
the natural law approach. It draws a clear distinction between law and morality. The focus is on
law as a reflection of the objectives of the duly constituted state in the form of rules that have
been formalized by the state. Legal positivists are concerned about what law “is,” as it is actually
enacted, rather than on what law “ought to be.”

According to the legal positivists, law is not a set of propositions derived and evaluated from
common moral standards, but an organized set of formal rules that come from a recognized
sovereign power. Rules are valid laws if they are correctly enacted and administered by accepted
authority, successfully enforced by this authority, and generally obeyed.

Legal positivism is often traced back to the political theories of Thomas Hobbes and John Locke,
among others. These ideas influenced Jeremy Bentham, a British philosopher who is often
regarded as a founder of legal positivism.

According to Bentham, law should not be defined and evaluated by a judge or scholar’s view of
what “ought” to be, but rather by a systematic analysis of what the law “is,” and then assessed by
its constitutional validity, efficiency and effectiveness. Bentham distrusted judges and what he
viewed as their tendency to shape the law according to their interests and their personal moral
convictions. Bentham preferred laws created by Parliament, in the form of acts passed by elected
legislators, rather than law created by appointed judges using their common law powers. He
argued that law-making powers of judges should be eliminated, and their power to shape the
application of legislation strictly limited.

It is a short step from the views of Bentham to the modern principle of the rule of law, as
articulated by A.V. Dicey. If you end up in law school in a few years from now, Dicey’s name
would come up again and again, especially in your administrative law course in your third year
when you are studying the rule of law and the standards of review. Law students complain about
administrative law a lot and nobody wants to teach administrative law because students don’t
like it. It is quite theoretical and some debates that never seem to come to an end, such as
standards of review.

According to Dicey, government according to the rule of law means that the authority of the state
is exercised according to constitutionally-enacted laws rather than the arbitrary decisions of those
in power. All government action must be justified by legal authority. Moreover, the law creates
rights and obligations that apply to all citizens of the state. No person is above the law. And the
rule of law is not only about equality of status but also application, so that laws must be
administered by an independent judiciary without fear of favour.

Basically, the legal positivist analysis of law avoids the considerations of morality. However, its
deference to authority avoids difficult questions of justice. Justice is one of the primary

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objectives of law, as reflected in our language when we refer to ministries and courts of justice. It
is also reflected in popular criticism of the law when justice is perceived to be denied. Laws that
fail to achieve justice will not have popular support.

Law is not simply a set of formal rules enacted by the state that may or may not conform to
concepts of justice. The legitimacy of the rule of law requires some reference to standards of
justice if not morality.

The missing quality of justice in classic legal positivism relates to the values we place on matters
such as human dignity, rights, fairness and equity.

H.L.A Hart was another legal positivist we have to mention. His concept of law is a more
sophisticated version of legal positivism that addresses the concerns we have. Hart notes that
people have a critical or “reflective” attitude towards legal rules. Hart sets out a hierarchy of
rules and identifies key qualities found in valid legal rules. He identifies key “internal” and
“external” aspects to legal rules. According to Hart, the external aspect of rules relates to the way
rules affect people’s behaviour without reference to their own individual consideration of how
they ought to behave. In this respect, rules are external to individual deliberations about
behaviour.

The internal aspect of rules, on the other hand, reflects something about how people think they
ought to behave. It relates not only to actual behaviour but to the behaviour thought to be
required of a society. It tells us that deviations from the required standard are liable to be met
with criticism and disapproval.

The rules of the road provide an example. In Canada driving on the right is required by law. In
United Kingdom driving on the left is not legally required but is a rule of custom. This means
two things. First, it is to say that in general British do drive on the left.
Second, it is to say that people drive on the left, not just out of habit but also out of a conviction
that they ought to do so because this is required of them. Rules, then, have two sides to them.
One side relates to practice and actual behaviour. The other is a sense of obligation concerning
what should or must be done.

However, law is more than just a set of unrelated separate rules. The rules that constitute a
country’s law are formalized and organized and for this reason it is frequently referred to as its
legal system.

According to Hart, law contains higher-order rules that provide methods for making, unmaking,
and changing all the other rules. Hart called these higher order rules the “rules of recognition.”
Rules of recognition are identified by legislative and judicial practice, in other words, they are
accepted by political and legal actors as such, and this makes them binding and distinct from
non-legal rules. The rules of recognition are then applied to determine whether other laws are
properly enacted or amended by legislatures and the courts.

Legal rules are also welded together by common general principles that relate to fairness and
justice. These principles underpin formal legal rules, including higher-order legal rules and help

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to unify the law. Hart argues that these principles give rise to a rational assessment of the law and
a reflective attitude towards it. This means that there is no need to refer to moral content in order
to recognize the integrity of law.

(3) Law, Rights and Justice

More recently, Ronald Dworkin rejected the positivist separation of “is” and “ought” and
searches for underlying value-based principles that can be given objective content.

Dworkin accepts that while valid positivist rules of law may guide most cases, “hard” cases,
about which most informed people may reasonably disagree, involve reference to standards that
are not rules. Such standards may be policies, principles of justice or fairness, or some dimension
of morality. A judge faced with a difficult case will not simply refer to applicable legal rules. The
case may be difficult precisely because there may be no applicable rules or because the rules are
subject to some relevant exception. The judge will turn to the underlying purpose or policy of the
legal rules in the area, or to some other standard to achieve a just and fair result.

If we accept that law consists of such other standards beyond formal legal rules, “ought”
questions return. How are these standards that help resolve hard cases determined? Dworkin
does not rely on moral beliefs as much as natural law scholars do. Rather he relies on rights,
suggesting that the appropriate approach to hard cases involves a judicial consideration of rights.

Problems remain with Dworkin’s focus on judges and the judge’s consideration and balancing of
rights. Judges are also human beings with particular values and experiences, and therefore
subjectivities come into play in their recognition and weighing of rights.

Hart and Dworkin influence many of today’s scholars working in the area of jurisprudence or
legal theory. Despite all the variations of natural law and positivist approaches to the law, the
major tension remains the degree to which scholars on either side of the divide are willing to
trust the judges to assess the legitimacy or validity of laws based on higher principles.

When faced with a legal problem, if you go directly to the law, to the statues and cases for
answers, then you are in the tradition of legal positivism. But if you start by reflecting on the
facts of the problem, weighing both sides of the question, considering the demands of fairness
and justice in the situation and arrive at a conclusion based on principle and then turn to the law
books to see whether the conclusion is supported by statutes and cases. Your approach recognizes
that perhaps there is more to law than the way it appears from a review of laws approved by the
accepted authority.

With that, we have finally covered all the key points you need to know about the jurisprudential
approach of law. Let’s now quickly shift to interdisciplinary concepts of law.

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Interdisciplinary concepts of law

Interdisciplinary approaches develop a definition or theory of law by focusing on law’s

relationship to other social practices. In addition to being interested in the actual content of the
law, interdisciplinary approaches study the actual practices of the legal system and the impacts of
law in everyday life. Interdisciplinary approaches step outside an internalized focus on law and
attempt to analyze its social, cultural, economic and political roles.

Some philosophers deal with the general difficulties of definition by asserting, “if you want to
know what philosophy is, go and find out what philosophers do.” Likewise, if you want to find
out what law is, go and examine what lawyers and judges do. But most cases never reach the
courts. Much of a lawyer’s work is done outside the courts and in the office advising clients,
telling them their rights and obligations, explaining the law, negotiating for them in their disputes
with others and predicting the prospects of litigation. So, we also need to look at the role of law
in the regulation of social life, the economy, and public institutions.

Some interdisciplinary legal scholars define the law by examining what actually takes place in
the legal system and attempting to analyze its social, cultural, economic and political roles. Some
others, such as legal realism scholars and critical legal scholars combine the traditional
preoccupations of jurisprudence with concern for the issues raised by scholars who study law
from the perspectives of other disciplines. Other interdisciplinary conceptions of law are
generated by scholars working within disciplines other than law, who come to law as political
scientists, historians, sociologists and anthropologists.

We will talk about legal realism in our discussion of law on the books and law in action; and
critical legal studies will come after, among which we will focus on critical race theory and
feminist legal theory.

Today, we will mainly talk about three people, Emile Durkheim, Karl Marx, and Max Webber.

Emile Durkheim was one of the first social scientists who examined these issues in a coherent
and systematic way in the late 19th century. Durkheim drew a distinction between what he
labelled “primitive” and “advanced” societies. In primitive society, the majority work toward
common aims and acknowledge that a society’s moral and legal codes are necessary to keep it
together. Where there is departure from these expressions of solidarity, criminal sanctions are
imposed. These repressive laws not only punish the offender but reinforce the boundaries
between acceptable and unacceptable behaviour and help to maintain the cohesion of the whole
social group. In other words, the wrongdoer is punished as an example to the community that
deviance will not be tolerated.

In so-called advanced societies, where there is a complex economy of specialized production and
divided labour, repressive laws are increasingly displaced by regulatory laws that compensate
rather than punish, and a divide between criminal law and civil law emerges.

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Durkheim assumed that “consensus” and shared values are the norm in society, and that social
conflicts are mostly superficial disputes that the law resolves before they become socially
disruptive.

By contrast, Karl Marx articulated an influential “conflict” analysis based on what he argued was
the scientific study of the history of social relations structured by material and economic
conditions. For Marx, conflicts reveal the real nature of society, rooted in the fundamental
realities of production. Marx’s theory of law characterizes law as a form of class rule and
dominance.

Marx’s theory of law, which has greatly influenced social and jurisprudential thinking throughout
the world, may be summarized in three principal assumptions: (1) law is a product of evolving
economic forces; (2) law is a tool used by a ruling class to maintain its power over the lower
classes; and (3) in the communist society of the future, law as an instrument of social control will
finally disappear.

Unlike Marx, Max Weber rejected the economy as the sole or primary influence on law. While
Durkheim had a consensus view and Marx a conflict view, Weber could be described as adhering
to a pluralist view of society.

Weber’s typology of legal systems rests on two fundamental distinctions: first, legal procedures
are rational or irrational. Rational procedures involve the use of logic and scientific methods to
attain specific objectives. Irrational procedures rely on ethical or mystical considerations, such as
magic or faith in the supernatural. Second, legal procedures can proceed, rationally or
irrationally, with respect to formal or substantive law. Formal law refers to making decisions on
the basis of established rules, regardless of the notion of fairness. Substantive law takes the
circumstances of individual cases into consideration along with the prevailing notion of justice.

Weber’s theory of law reflected his fundamental understanding that modern society differs from
its past in many ways by being more rational, in that decisions are expected to be based on
logical reasoning based on the facts and circumstances of a particular situation.

Conclusion

The basic question, “what is law?”, gives rise to many theoretical responses that reflect different
ways to approach this question. All the theories we discussed this week set out a definition of the
law, a concept of its place in society, and assessment of its aims or what should be achieved by it.

The various theories we reviewed in more detail this week are concerned with how social rules
received formal recognition as laws, and whether these laws achieve justice and fairness as they
are used to regulate and resolve disputes and conflicts in society.

For natural law theorists, these aims are best achieved by law that conforms to morality. For legal
positivists, they are ensured by laws produced by duly constituted sovereign authority and
administered according to the rule of law.

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For interdisciplinary legal scholars, the place of law, and whether it achieves justice and fairness
is assessed by reference to structures of power neglected by jurisprudential scholars.

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