Legal Philosophy Schools of Thought
Legal Philosophy Schools of Thought
Legal Philosophy Schools of Thought
Jeremy Bentham
Teleological or Natural Law Theory
Principles of Morals and Legislation
Teleological - looks into the principles, purpose, and end (telos) of the
Law is conceived as a set of general commands issued by a sovereign
law.
and backed up with the threat of sanctions.
What law “is” is different from idealized law or what the law “should be”
(separability thesis).
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Hans Kelsen Argues that subjects or citizens voluntary obey the laws of the land
Pure Theory of Law because they accept as valid the rulemaking institution's claim to the
exercise of authority.
Objective of making law into a "science.”
Rule of Recognition - recognized as conclusive and valid.
Wanted to separate “legal science” from “legal politics”, which
compromises law based on what is politically correct. Rules of Change - reference to legislation to make and repeal rules.
Leviathan Confucianism
Political Theory and Rectification of Names
Rule by the Law, where there is no need for precedent, rules of
procedure, or processes that the lawmaker himself must abide to. Teaches regard for hierarchy and the bond between the ruler and the
subject, which supports legalism.
Herbert Hart
Rule of Recognition
Interpretivist or Constructivist Theory
"Specify some feature or features possession of which by a suggested
rule is taken as a conclusive affirmative indication that it is a rule of the
group to be supported by the pressure it exerts." Ronald Dworkin
Interpretivist Approach and “Best Fit Theory”
The basic role or nature of Rule of Recognition is established by the
legal system's being a normative system: a structured system of Assumes that an awareness of the concept of law is necessary for the
"ought" statements. existence of law in any society.
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Antithesis - contradiction. Legal rules must be used to resolve and harmonize, rather than
provoke or exacerbate conflict.
Synthesis - resolution to the contradiction.
Roscoe Pound
The scope and purpose of socio-logical jurisprudence
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Max Weber The Living Law - societal norms that regulates social relationships
Typology of Law and helps strengthen society.
Legal Study of Law internal structures meaning and scope Legal norm must follow actual social norms and be a “living law.”
Criticized the institutionalization and bureaucratization of laws that "Greatest happiness theory."
have become unresponsive to concrete situations.
An act is good if it contributes to the overall utility, i.e. promoting
happiness or pleasure to the most number of persons.
Roberto Mangeira Unger
Cultural Context Theory Jeremy Bentham
Felicific Calculus
Held that law must have a cultural context to support it.
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Pleasure - good. Rule Utilitarianism - follow the right rule appropriate to the situation
Pain or Misery - evil. you are in then adopt the rule which will produce the greatest good or
happiness for the greatest number.
Two minutes worth of pleasure is twice as good as a minute's
pleasure; while two pleased persons is doubly better than one pleased
person.
Economic Approach
Felicific or Hedonic Calculus - formula in computing the units for
happiness.
Richard Posner
Economic Jurisprudence and Consequentialism
John Stuart Mill
Utilitarianism, Law, and Authority Purpose of law is to increase the balance of happiness in society
through “wealth maximization.”
A state is entitled to authority if and only if it promotes more happiness,
good will, and common benefit for the greatest number. Wealth Maximization - is the sum of all tangible and intangible goods
and services, including the value of rights.
The attainment of justice, virtue, character, the advanced forms of
human culture, and the development of an individual's full potential are Freedom has no price.
legitimate goals to pursue which take precedence over the purely
sensory or selfish pleasures.
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Law consists of rules and principles; and that these rules can be applied
in any particular set of facts or case. Policy Science School
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LEGAL PHILOSOPHY SCHOOLS OF THOUGHT プカイ
Philip Bobbit
The Six Main Modalities:
2. Textual - looking for what the law simply declares or denies and
how it can be interpreted in contemporary times;