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Legal Theory

Feb 05, 2024, 6 min read

John Austin

  • English legal philosopher
  • Created legal positivism
    • Laws are not enforceable unless formed by a sovereign (ruler)
    • Man cannot make laws, they need a ruler to create and enforce them.
      • No vigilante justice
  • Laws did not have limits, they were the command of the sovereign.
    • You are not allowed to enforce the law yourself.

A.V Dicey

  • Developed the concept of the Rule of Law
    • Principle of justice that states that law must:
      • Be predictable, follow Due Process
      • Be enforced equally among all people. Nobody can be above law
      • Be transparent (clear, easy to understand)
        • e.g. Your lawyer has the right to ask for any documents that are being used against you.
      • Be unbiased, independent judges from politics.
      • Align itself with the moral understandings of the society it is in.
  • In Canada the Rule of Law protects individuals’ rights and freedoms.

Critical Theories

Critical theory is any approach to social philosophy that focuses on reflective assessment and critique of society and culture in order to reveal and challenge power structures.

Critical theorists maintain that a primary goal of philosophy is to understand and to help overcome the social structures through which people are dominated and oppressed.

Social Conflict Theory

  • A Marxist based social theory which argues that individuals are groups within society interact on the basis of conflict rather than consensus.
    • i.e. People are more likely to disagree, than to agree on things, and thus societies interact on the basis of conflict.
  • Through various forms of legal and political conflict, groups will tend to attain differing standards of life.
  • This is invariably tied to class differences and struggles.
    • In the western world, upper, middle, and lower class. (to put it simply)
  • “Rich get richer, the poor die trying”, without Socialism!
  • Pushes for Socialism, a theory of people benefitting from their labor, and social programs run by the state.
  • Legal studies theorists argue that law is not neutral or value-free; it is about value choices by certain groups of people
  • Law exists to support the interests of the people in power, and can be an instrument for injustice1 and oppression.
  • Judges decisions result from ideological bias and historical struggles
    • i.e. Aboriginal Land Claims - Oka Crisis
  • Theorists believe that the law should be used as a tool to achieve social justice.
  • Feminist Legal Theory has roots in the Glass Ceiling Approach - they can see the world above them, but the glass limits their freedom and opportunity.
  • It identifies the pervasive influence of patriarchy and masculinity norms on social and legal structures.
  • It promotes freedom and equality for women that reflects a profound shift in basic assumptions about the nature of women and their proper place in the world
  • Basically, the law must now reflect upon and remove sex and gender based discrimination, as stated in Section 28 of the Charter

Critical Race Theory

  • Critical race theory is an intellectual and social movement of civil rights scholars and activists who seek to examine the intersection of race and law, and to challenge mainstream Western liberal approaches to racial justice.
  • Developed in the US in the 1970s following the Civil Rights Movement.
  • Integration of theory into schools has seen backlash from parents and organizations in many US districts and states (Mostly red states).
  • Associated with the destruction of statues or re-naming of institutions with past racist connections.

Critical Theory - In Practice

  • Critical theory is a controversial topic for some people in society
    • For it’s application:
      • Helps to identify past injustices and acknowledge them
      • Goal is to remove discrimination and other social flaws.
      • Goal is to change the hierarchy system of society.
    • Against it’s application:
      • Some argue that “The past is the past, and we have moved on as people”.
      • Some argue that “The microanalysis of all things can have adverse consequences.”
      • Some argue that “The hierarchy system has a history of discrimination, but today’s success is from intelligence and hard work, not appearance.”

Other Legal Theories

Divine Law Theory

  • Also known as Divine Command Theory
  • Any body of law that is perceived as deriving from a transcendent source, such as the will of God or gods.
  • Generally, it is the theory that what makes something morally right is that a God(s) commands it, and what makes something morally wrong is that a God(s) forbids it.

Natural Law Theory

  • Natural Law refers to an eternally changing value for justice - relative to both Time and Place
  • At different times in history, many have claimed natural justice for their movements/actions:
    • Monarchs & Popes used Divine Right to rule through middle ages with belief in “Natural Sovereignty”
    • Colonialism was believed to be a “natural movement” to “civilize” other cultures.
    • Revolutions for liberty, freedom, life, human rights, are all “natural movements”.

Positive Law Theory

  • According to this theory, rules are made by the sovereign.
    • These laws are irrespective of any other considerations.
  • Simply, a law is a law because a ruler made it a law.
    • It must be obeyed or enforcement should/could occur.
  • These laws, therefore, vary based on time and place - they are morally relative.

Consensus Theory

  • Theorists believe that socialization produces agreement between people about appropriate behavior & beliefs.
  • Theorists believe that a “healthy society” is one characterized by a high degree of “value consensus” - or general agreement around shared values.
  • From this perspective, crime is generally seen as dysfunctional (bad for society): it is a result of a family, or part of a society failing in its duty to effectively socialize the young individuals and groups that are detached from society.

Realist Law Theory

  • This theory concludes that the only real law is what a judge decides in court.
    • This notion has it’s roots in common law.
  • All substantive law is simply words written down - until they are put into action in a realistic case.
  • Therefore, it is the decision given by the judge but not the legislators that is considered as law, according to this theory.
  • Maintains that common law is an inherently subjective system that produces inconsistent and incoherent results - this is a reality to our existence.
  • Results can be largely based on real or unknown bias or influences from:
    • Power and economics in society,
    • The persuasion and characteristics of individual judges,
    • Society’s welfare state,
    • Different or changing legal philosophies.
  • Formalists believe in the value of the fact - and the value of science and logic.
  • Formalists maintain that judges reach their decision by applying uncontroversial principles to the facts, and should not apply or consider social, political, or other possibly biased factors.
  • This is called ”Mechanical Formalism” - all decisions are derived through fact only.
  • Challenges Legal Realism.

Law Based on Economics

  • An economics-focused approach to law creation, enforcement, and maintenance.
  • Law and economics stresses that economic markets are more efficient than courts.
    • Focuses on efficiency.
  • This is a measurable approach - what fine will people be willing to pay before being deterred from a crime (quantifiable).

Footnotes

  1. Read about injustice in Forms of Justice ↩

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