Natural Law
Some philosophers have argued that the world follows fundamental rules of fairness and justice that are always morally correct. To commit murder, for example, seems wrong at any time in any place. In this view, the laws made by people are less important than these “natural” laws. Human beings have the ability to use reason and can recognize these higher laws, and so have a moral duty to follow them, even when the laws written down by our societies say otherwise. Conversely, if a law is contrary to these fundamental principles, that law is immoral and unjust, and should not be followed. Hence, natural law is known by the slogan, “An unjust law is no law at all.”
Legal Positivism
The theory of legal positivism is in sharp contrast to that of natural law. Whereas natural law sees a powerful connection between morality and law, positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Legal positivism argues that law is always:
In this view, law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal. This is why different countries can have different laws about the same behaviours, such as prostitution or drug use. In this view, laws are established by governments to maintain social order and to secure the best possible life conditions for their citizens. People should respect laws and legal institutions because they serve the population by keeping social life predictable, safe and orderly. Therefore, it is also just and fair that the state has the power to impose serious consequences if laws are broken.
Legal Realism
Legal realism is considered a subcategory of legal positivism because it also holds that values are variable, not universal. In this view, what is true, moral and fair depends upon the perspective of the individual. However, it differs from both natural law and legal positivism in that it tries to explain the law through the real actions of individual lawmakers rather than through ideas about nature or government. Legal realists argue that in reality, the law is flexible. Judges’ interpretations of any law is influenced by their own experiences and by the prevailing values of their communities. This explains why two different judges can come to different conclusions with an identical set of facts about a case. When judges make these decisions, they are actually creating the law by applying it. Individual bias is built into every legal decision – for legal realists, the law is essentially whatever the lawmakers say it is.
Critical Legal Theory
In the words of the writer and political activist Audre Lord, “the master’s tools will never dismantle the master’s house.” In other words, those with a great deal of power in society are not likely to give people with less power the means to make social change. Law is a powerful tool, and critical legal theory extends the ideas of legal realism to form a strong critique of law in society. It argues that since laws reflect individual values, they can contain the biases of powerful social groups. Critical legal scholars argue that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status. This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups. This body of scholarship has focused on bias and discrimination in the law with respect to gender, race, ethnicity, religion, economic class, sexuality and disability.
Quiz
Categorize the following statements as:
Statements:
There are fundamental rules of fairness and justice that are always morally correct (example: murder is always wrong).
Answer: 1
The law can be understood through the real actions of individual lawmakers rather than through ideas about nature or government.
Answer: 3
Humans have a moral duty to follow natural laws even when laws written down by society say otherwise.
Answer: 1
The law can maintain social inequality by advancing the interests of more powerful groups.
Answer: 4
What is true, moral and fair depends on the perspective of the individual.
Answer: 3
While the law appears to bring justice for all, in practice, it is a tool used by people who have power and status.
Answer: 4
Laws should be followed simply because they are laws.
Answer: 2
If a law goes against fundamental principles, it is called an unjust law
Answer: 1
Law gets its authority from the government rather than from fundamental, universal principles.
Answer: 2
A judge’s interpretation of the law is influenced by his/her perspective. For example, individual bias exists within every legal decision.
Answer: 3
It is just and fair for the State to impose consequences if laws are broken.
Answer: 2
Laws are formed by formal institutions, systematically written down and enforced by governments.
Answer: 2
Certain groups (based on: gender, race, ethnicity, religion, etc) are discriminated against through law.
Answer: 4
A law need not be moral to be a law.
Answer: 2
Laws are variable, not universal
Answer: 3
There are natural laws that exist and humans can recognize these higher laws through reason and judgment.
Answer: 1
The law is whatever lawmakers say it is.
Answer: 3
They are dependent on the interpretation of the individual creating or enforcing it.
Answer: 3
Laws are established to maintain social order and can differ from country to country (not universal).
Answer: 2
Since laws reflect individual values, they can contain the biases of powerful social groups.
Answer: 4