Jurisprudential Thought

This entry covers the Schools of Jurisprudential Thought.

Schools of Legal Theories

Law has different meanings as well as different functions. Philosophers have considered issues of justice and law for centuries, and several different approaches, or schools of legal thought, have emerged. In this chapter, we will look at those different meanings and approaches and will consider how social and political dynamics interact with the ideas that animate the various schools of legal theories.

There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called jurisprudence (the philosophy of law; there are many philosophies of law and thus many different jurisprudential views), and the two main schools are legal positivism and natural law. Although there are others (see below), these two are the most influential in how people think about the law. (1)

A jurisprudence that focuses on the law as it is-the command of the sovereign. See more about legal positivism in this legal Encyclopedia.

A jurisprudence that emphasizes a law that transcends positive laws (human laws) and points to a set of principles that are universal in application. See more about natural law in this legal Encyclopedia.

The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments.

The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current. The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context.

The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The “Crits” believe that the social order (and the law) is dominated by those with power, wealth, and influence. Some Crits are clearly influenced by the economist Karl Marx and also by distributive justice theory. The CLS school believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in society. Law is politics and is thus not neutral or value-free. The CLS movement would use the law to overturn the hierarchical structures of domination in the modern society.

Related to the CLS school, yet different, is the ecofeminist school of legal theory. This school emphasizes-and would modify-the long-standing domination of men over both women and the rest of the natural world. Ecofeminists would say that the same social mentality that leads to exploitation of women is at the root of man’s exploitation and degradation of the natural environment. They would say that male ownership of land has led to a “dominator culture,” in which man is not so much a steward of the existing environment or those “subordinate” to him but is charged with making all that he controls economically “productive.” Wives, children, land, and animals are valued as economic resources, and legal systems (until the nineteenth century) largely conferred rights only to men with land. Ecofeminists would say that even with increasing civil and political rights for women (such as the right to vote) and with some nations’ recognizing the rights of children and animals and caring for the environment, the legacy of the past for most nations still confirms the preeminence of “man” and his dominance of both nature and women. (2)

Each of the various schools of legal theory has a particular view of what a legal system is or what it should be. The natural-law theorists emphasize the rights and duties of both government and the governed. Positive law takes as a given that law is simply the command of a sovereign, the political power that those governed will obey. Recent writings in the various legal schools of thought emphasize long-standing patterns of domination of the wealthy over others (the CLS school) and of men over women (ecofeminist legal theory). (3)

1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
2. Id.
3. Id.

• Analytical School
• Schools of Jurisprudence
• Sociological School
• Historical School
• Jurispruedence
• Natural-law School
• Theory of Law
• Comparative School
• Thomas Aquinas
• Natural Law
• Islamic Schools