1+-+F13+-+Theories+of+Jurisprudence+page

//**Here is where you can put your notes on the various theories in preparation for writing your papers:**//

=Formalism=

Natural Law
=Legal Positivism= Main ideas: Utilitarian View -Law is a social construction, it is the command of the sovereign -Law is a matter of what has been posited (ordered, decided, practiced, tolerated) --there has to be a willingness of the people to follow the law ---This is know as The Rule of Recognition:validates the legal system and who the people habitually obey. ---It is the rule to which they actually appeal in arguments about what standards they are bound to apply.

HLA Hart (contemporary) view: -Separation of codes and morals -Separation of law as it is and law as it ought to be -Need to have law that is not based on a mystic nature but from social norms -Law derives from man and his behavior

Pros: Law governs the people. Respect for founders of governments Using Law to construe by the principle of utility. Cons: To identify law we must engage in moral and political discussion. This is an institutional focus of law.

=Sociological Jurisprudence= __Main Idea__ -Based more on society as a whole instead of focusing on the individual. -There is a lack between public opinion and the written law. -Scientific Method to inform the law. -5 stages of law: 1. Primitive Law--focus is on "keeping the law" 2. Strict Law-- focus is on "the rule of the law" 3. Scrutiny/Natural Law--law is based on equity and morality 4. Sporting Theory of justice 5. Socialization of Law--The creation of a better social society to satisfy social needs rather than individual needs. Law is for social justice too, not just individual justice. -Social engineering: A way of correcting social problems for the good of society to create a society in which everyone is somewhat prosperous. Example: Obamacare -Comparative negligence: judges should recognize the need to be responsive and flexible to public opinion/changing times. Laws that are designed to serve social ends. Judges have no latitude and should recognize the need to evolve.

Evaluation __Pros__ -Considers the working of the law rather than its abstract content -Stresses the social ends of the law rather than sanctions -Law is designed to serve social ends __Cons__ -Not everyone is going to agree on what is best for society –Individualism -Not all judges are going to be into the scientific method. Example: Judge who changed the little boy’s name -Science and evidence can be manipulated for your cause.

=Legal Realism= -Facts+sociological background+results=argument justification -Came from practicing lawyers in the Appellate Court -Idiosyncratic-psychological -The Core Claim that Judges respond to the Stimulus of the facts -Law Alone does not provide the Answer -A Judges demographic matters -Judges should be self-conscious -They listen to facts then find law to justify their opinion -Sociological and Psychological -Judges are socialized in Law School to see law the same way. __Evaluation__ Its accurate to say a Judge decides a case because of their sociological background. How the facts affect someone's thought process if different for each person because they have had different life experiences which gives them eah a different perspective. ie. Georgia Judge Name Change Scalia's Opinion on the Heller Case Judges of Different ethnicities and backgrounds can judge the same case with the same facts differently. This is why Legal Realism came from the Appellate Court. Law is filtered through the Judge.

=Law and Economics=

=Critical Legal Studies= -Stresses teaches law in terms of hierarchy
 * __Main Ideas__

-Law is hierarchical and the law school curriculum maintains that hierarchy (its a cycle)

-Law school teaches doctrine as fact, and reinforces status quo

-Race, class, gender matters (biased against these)

-There is bias and political nature to law school

-CLS challenges status quo and tries to even out bias (on race, class, gender spectrum)

-Trying to change the way law schools and law in practice treat people

-Law school teaches students to justify and rationalize the system as is (they conform to the way things are)

-Law is instrumental to reinforcing the status quo and quelling change (enforcing and maintaining racial, gender, class biases) || __ Evaluation __

__ Pros: __ -Money and political connections matter (the law itself is hierarchical, ex: HSBC)

-Law school helps reinforce race, class, gender biases because they teach lawyers to accept the way things are and when they internalize it they feel that they cant do anything to change it, so they do not (they rationalize the system and do not see a need to change anything)

-The theorists are not in their own philosophical bubble. CLS comes from a social movement, it is based on social facts, and because of that it does a better job than some of the more abstract/ambiguous theories at explaining the way things are (ex: it is more current than law and economics)

__Cons:__ - ||