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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 theory of law and legal theories is
interrelated.
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.
* Hans Kelsen (Pure Theory of Law, 1934; General Theory of Law and
State, 1945):
-
Law, along with morals and religion, is a social phenomenon that has its
own criteria.
* Oliver Wendell Holmes, Jr. (The Path of the Law, 10 Harvard Law
Review 457, 1897):
-
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law
A just law is one that is consistent with natural law, that is, it is
ORDERED TO THE COMMON GOOD.
*Ronald Dworkin: (Laws Empire [1986]; Taking Rights Seriously [1978] [Political
and Moral Right Theory]
-
Laws include not just the norms found in treaties, customs, constitutions,
statutes, and cases, but also moral principles that provide the best
justification for the norms found there.
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]).
*T. Hobbes, J. Bentham and J. Austin
-
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
Contrary to the view of Hobbes, Bentham and Austin, 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).
H. L. A. Hart believes that all legal systems have Primary rules and
Secondary Rules.
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).
follows its own judgement, unite itself with all others (with which it cannot
avoid interacting), subject itself to a public lawful external coercion, and
so enter into a condition in which what is to be recognized as belonging to
it is determined by law.
Legal Realism (Skepticism)
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 a 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 Matter of Interpretation, 1997):
Of all the criticism leveled against textualism, the most mindless is
that it is formalist. The answer to that is, of course its 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 in writing
and on videotape. We nonetheless insist that before the state can punish
the miscreant, it must conduct a full-dress criminal trial that results in a
Constructivism
Advanced by Ronal 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.
See Riggs vs. Palmer (US CA Case, 1889)
Ronald Dworkins Theory is also called Interpretivism
Critical Legal Studies (CLS)
CLS advocates believe in the inadequacy of 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)
A political authority is legitimate only if it has the consent of those who are
subject to its commands. (Necessary condition to legitimacy but not
necessarily the sufficient condition)
Social Contract Theorists
- Hobbes - - - absolute authority
- Locke - - - limited authority
- Rousseau - - - authority is the general will, popular sovereignty is
inalienable, cannot be transferred.
Habermas Theory
THE ONLY LAW THAT COUNTS AS LEGITIMATE IS ONE THAT COULD
BE RATIONALLY ACCEPTED BY ALL CITIZENS IN A DISCURSIVE
PROCESS OF OPINION-AND WILL-FORMATION. (procedural
conditions for rational will-formation)
In analyzing legitimacy of the law, Habermas first talked about a system
of rights that mediates two related tensions: between private and public
autonomy, and between basic rights and popular sovereignty. But these
rights must be justified and made legitimate through a legislative
procedure that is based on the principle of popular sovereignty.
KINDS OF LAWS
CLASSIFICATION OF LAW
I.
NATURAL LAW
This derives its force and authority from God. It is superior to other laws. It
is binding upon the whole world and in all countries.
II.
POLITICAL LAW That branch of public law which deals with the organization and
operations of the
governmental organs of the state and defines the relations of
the state with the
inhabitants of the territory.
It consists, among others, of:
Constitutional Laws I & II
CRIMINAL LAW That branch of law which defines offenses and specify the
corresponding penalties
therefor.
It consists, among others, of:
Criminal Law I
Criminal Law II
TAXATION That branch of law which deals with the imposition and collection of
taxes.
It consists, among others, of:
Taxation I
Taxation II
CIVIL LAW That branch of law which every particular nation or state has
established peculiarly for
itself. This law concerns with civil or private rights and remedies, as
contrasted to
criminal law.
It consists, among other, of:
Persons and Family Relations
Property
Succession
Sales
Credit Transactions
Transportation Law
LABOR LAWS That branch of law which deals with the relationship between the
employer and the
Employee, as well as the working conditions, wages, fringe
benefits, grievances and
Association of employees.
It consists, among others, of:
Labor Law I
Labor Law II
COMMERCIAL LAW Body of law that applies to the rights, relations and conduct
or persons and
Businesses engaged in commerce, merchandising and
trade.
REMEDIAL LAW It refers to the means and methods of setting the courts in
motion, making facts
known to them and effectuating their judgements.
It consists, among others, of:
Civil Procedure
Criminal Procedure
Evidence
Special Proceedings