LAW

THEORIE
TEAM 3:
B.BILEGT
E.MUNKHBOLOR
B.MONGOLJINGOO
S
B.NARANGOO
B.ENKHDULGUUN
 Table of
contents
01
NATURAL 02
LEGAL
03
LEGAL
LAW POSITIVISM REALISM
THEORIES

04
CRITICAL
05
LAW AND
06
CROSSWOR
07
Resources
LEGAL ECONOMICS D
STUDIES
01 Natural Law
theory
 Aristotle, Thomas Aquinas, John Locke

Natural law theory believes that all people

Natura
have inherent rights, conferred not by act of
legislation but by God, nature, or reason.

l law Laws have a purpose: to provide justice. A law

that doesn’t provide justice is considered ‘not a
theory law at all.’

Any law that is good is moral, and any moral

law is good
 ● - Based on human nature, morals, ethics
and conscience
● - Unaffected by culture, custom or society
● - Not governed by the judiciary or
Natural law legislature
● - Common to everyone irrespective of
characteristi race, gender, and socioeconomic status
cs ● - Evolves based on its usage, function,
and circumstances
● - Not taught by the humankind
● - Universal and constant
2 Legal
positivism
 Legal Positivism

Legal Legal positivism is a philosophy of

law that emphasizes the conventional
Positivi nature of law—that it is socially
constructed. According to legal
sm positivism, law is synonymous with
positive norms, that is, norms made by
the legislator or considered as common
law or case law.
 Jeremy
Bentham
Jeremy Bentham was an
English philosopher, jurist,
and social reformer
regarded as the founder of
modern utilitarianism.
Legal
Positivism
John austin
English legal theorist, who
posthumously influenced
British and American law with
an analytical approach to
jurisprudence and a theory of
legal positivism
Natural law vs Legal positivism

● Formal criteria of law’s origin, law enforcement and legal

effectiveness are all sufficient for social norms to be considered law.
● Legal positivism does not base law on divine commandments, reason,
or human rights. As an historical matter, positivism arose in
opposition to classical natural law theory, according to which there are
necessary moral constraints on the content of law
Legal positivism does not imply an ethical justification for the
content of the law, nor a decision for or against the obedience to
law. Positivists do not judge laws by questions of justice or
humanity, but merely by the ways in which the laws have been
created. This includes the view that judges make new law in
deciding cases not falling clearly under a legal rule. Practicing,
deciding or tolerating certain practices of law can each be
considered a way of creating law.
John Austin's command
theory
Austin differed from Bentham in a number of ways, for example, by endorsing the
common law. Differences aside, Austin embraced Hobbes's and Bentham's
conception of law as a sovereign command, whose authority is recognised by most
members of a society; the authority of which is enforced by the use of sanctions, but
which is not bound by any human superior. The criterion for validity of a legal rule
in such a society is that it has the warrant of the sovereign and will be enforced by
the sovereign power and its agents.
The three main tenets of Austin's command theory are:

● laws are commands issued by the uncommanded commander, i.e. the

sovereign;
● such commands are enforced by sanctions;
● a sovereign is one who is obeyed by the majority.
03 lEGAL
REALISM
Short introduction of legal
realism
According to this theory, judges consider not only abstract rules, but
also social interests and public policy when deciding a case. It provides
that law is what the judge decides in court. Following this theory, rules
not put to use to solve practical cases are not laws but merely existing
as dead words and these dead words of law get life only when applied
in reality. Therefore, it is the decision given by the judge but not the
legislators that is considered as law. Hence, this theory believes that
the lawmaker is the judge and not the legislative body.
The theory has its basis in the common law legal system in which the
decision previously given by a court is considered as a precedent to be
used as a law to decide future similar case. This is not applicable in civil
law legal system.
Trends of realism
1.) Rule-skeptics:
They believe that there are common factors and principles that
influence the decisions of judges

2.) Fact-skeptics:
The judge's decision cannot be predicted. It varies depending on the
judge's approach to the law
 Scandinavian American

Dena Alf Ross Karl Llewellyn

(1899–1979) (1893–1962)

Focuses their researches on the Jurisprudence is based on the

norms of legal responsibility and
gives more importance to the
specialized legal system.
decision of the court, which is the
management of social and public
interests.
 The common ideas of realists
1. A legal category containing norms that exists in some
way.
2. Judicial and administrative decisions can be
“irrational”. Court’s decision is not the final truth.
3. Referees use resources, such as statistics, forensic
judgment, criminology, jurisprudence,sociology etc,
to predict what other officials may do.
 strengths ● Biased, depends on the

of realism ●
judges.
Advantage of their
power.

● Laws can be amended easily.

● Larger population agrees with it.
● Benefits all groups of people.
● Made by scholars and highly
educated judges of supreme weaknesses
courts.

of realism
CRITICAL LEGAL
STUDIES
 definition
In a narrow sense the term Critical Legal Studies (CLS) refers to a movement
which originated in the USA in 1970’s as a response to an increasing political
and legal conservatism or traditionalism.

Critical legal studies (CLS) is a theory which states that the law is necessarily
intertwined with social issues, particularly stating that the law has inherent social
biases.

“CLS states that the law supports a power dynamic which favors the
historically privileged and disadvantages the historically underprivileged “
Critical Legal study
A younger theory of Jurisprudence

Developed since 1970s

Takes negative view of Law

Creative - Approaches import insights, concepts and methods devisedby other

disciplines such as aesthetics, literary criticism, psychoanalysis and philosophy
into the critical study of the law
05 Law and
economics
 Economic analysis of
law

Founders: The
scholars of Normative
Effects of law Positive theory
Chicago school theory
of economics
 2 theories

THE NORMATIVE THEORY OF

THE POSITIVE THEORY OF
ECONOMIC EFFICIENCY
★ The positive theory uses economic analysis
to predict the effect of various legal rules
★ According to the this theory, the common
law is efficient.
ECONOMIC EFFICIENCY
★ This theory makes policy
recommendations based on the economic
consequences.
★ Law should be efficient.
resources
● “Legal realism” by Sumaya Mussa. https://prezi.com/okoipymrdmws/legal-realism/
● Legal theories. Cornell law school https://www.law.cornell.edu/wex/category/legal_theory?page=9
● Philosophy of law. Realism https://www.britannica.com/topic/philosophy-of-law/Realism
● “Major theories of law” by Tesfaye Abate.
https://www.abyssinialaw.com/study-on-line/item/479-major-theories-of-law?fbclid=IwAR2iRp8GN2
_zlgeNUZPWye8WB8bDLV3xhafDNx0AJFEa4CWp8-KNcJ3Uj0Q

● “Эрх зүйн философи”, Х.Сэлэнгэ

● Legal positivism.
https://en.wikipedia.org/wiki/Legal_positivism
Legal Positivism. Internet Encyclopedia of Philosophy
https://iep.utm.edu/legalpos/#:~:text=Legal%20positivism%20is%20a%20philosophy,common%20l
aw%20or%20case%20law.
● Law and economics - Wikipedia
● Law and Economics - Econlib