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Positivism and Natural Law
Formalism (Legalism)

Realism



Lawyers



Critical Legal Studies (CLS)
Law and Economics Theory
Marxist Legal Theory

Feminist Legal Theory

Queer Legal Theory






















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page 19 POSITIVISM AND NATURAL LAW

Natural Law:
* "A place where law and morals intersect"
o Law
SS? Talking of human law or laws made by humans for humans
o Morals
SS? Talking of something more
SS? What is good/bad - a higher law
o Determined by something else than human made law
SS? God
SS? Nature
SS? Reason
SS? Universal values * Ancient version of natural law can be seen in Sophocles' Antigone
o Aristotle - natural world--law--universal--reason

ST AUGUSTINE OF HIPPO (354--430ACE)
* LEX INUSTA NON EST LEX - AN UNJUST LAW IS NOT LAW
o GOOD PEOPLE FOLLOWED GOD'S LAW
o HUMAN LAW WAS NEEDED FOR THE SINFUL
o CLEAR HIERARCHY
SS? HUMAN LAW ONLY VALID IF IT FACILITATES BEHABIOUR IN
ACCORDANCE WITH GOD'S LAW
SS? HUMAN LAW IN CONFLICT WITH GOD'S LAW IS NOT LAW
o PAVES THE WAY FOR MEDIEVAL NOTIONS OF NATURAL LAW















ST THOMAS AQUINAS (1225 - 1274 ACE)
* LINKS BETWEEN GOD'S LAW AND HUMAN LAW * NATURE REASON PARTICIPATION
o DIVINE REASON ENABLES READING OF NATURAL LAW * LEVELS OF LAW
o ETERNAL LAW
SS? LEX AETERNA
SS? MIND OF GOD
o DIVINE LAW
SS? LEX DIVINA
SS? SCRIPTURE
o NATURAL LAW
SS? LEX NATURA
SS? PHYSICAL AND HUMAN
o HUMAN LAW
SS? LEX HUMANA
SS? PRIMARY, SECONDARY


Social Contract:
* Thomas Hobbes and John Locke were the figureheads of two different
interpretations of the social contract * Natural law without God * Political not theological * Three essential elements
o What humans were like naturally in the 'state of nature'
o Leads to social contract forming political authority
o Leads to post--social contract sovereign and subject, involving
natural rights * Architects of the two societies of modernity

Positivism
* Emerges in 18th century: Hume, Bentham, etc. * Is 'law as it is...that the law is separate from...ideas of morality' * Posited by man, not God, nature, or General Will. * Political task is separate from working out what the law is.
John Austin (1790--1859)
* Disciple of Jeremy Bentham, but without the utility principle - 'Command
Theory'.
o Must be a 'Command' - express wish backed by threat.
o Must be 'General' - not particular. Must be from 'Sovereign' - 'owed habitual obedience'.

*
*
*
*
* * * Thomas Hobbes (1588--1679)
Leviathan
Human nature
o Nasty, violent, selfish and
clever
State of Nature
o Complete liberty
o Free to kill and be killed
SS? War of all against all
Reason
o Peace better
o Bargain for right to security
under the social contract
Given human nature, humans only
keep agreements unless made to,
therefore a strong man is needed to
keep the peace
The 'subjects' agree to be governed
by the sovereign
Leviathan state
It is therefore natural to be ruled
by the sovereign, who has
authoritarian power to keep the
peace

AGREEMENT BETWEEN SUBJECTS
NOT SUBJECTS AND CITIZENS



















* *
*
* *
John Locke (1632 - 1704)
Two Treatises on Government
State of nature: a paradise
Theory of labour and the problem
of property
o No rights
To secure property rights, social
contracts are forged
o The to--be--sovereign is a
party to contract
Nightwatchman state
Government has a more narrow
purpose than Hobbes' emergency
sounding 'keep the peace'
o Keep property rights FORMALISM (LEGALISM)
* * * * * * * * * Hard' Positivism i.e. hard distinction between what law is/ought to be.
Legal problems solved through application of rules ONLY.
Gives rise to lawyering as a technical skill 'learning to think like a lawyer'
(robot).
A lawyer's/judge's personal or political values irrelevant.
Legal solutions independent of personal - should get same outcome
regardless of judge.
Has built in assumptions: formal legal material can apply themselves.
Law independent of politics/morality/society/emotion.
Works with democracy - only apply rules that have been made by
legislatures.
Classical examples of formalism in action:
o 'Shakespeare's Merchant of Venice Portia and 'just one pound of flesh.'
o Davies p151--152 and Hutchinson and the winning swimmer p154. Kennedy on Legal Education (written late 1970s): * Kennedy one of the founder of the critical legal studies movement (CLS). * Concerned with the politics of law that is hidden by formalism. For the CLS,
law has political values or ideology. * Argues that law schools train students to be functional within corporate legal
practice, i.e. to be able to operate in hierarchy. It does this through a variety
of strategies.





















KENNEDY'S LEGAL STRATEGIES:

Strategy One: Law as Rules * Indoctrinates formalism with emphasis on cases and rules. * Pressure to express acceptance of formalist outcomes. * Abstract concern with 'thinking like a lawyer'. * 'Hard' teachers that teach law as rules good; 'soft' teachers that fluff about
with 'theory'. * Base message - that the system is OK as it is.
Strategy Two: Social Context * Class: students change dress, the way that they talk and their values over
the law school experience; homogenise towards upper--middle class
persona. * Grades: construct competition for opportunities on the basis of grades
(measures worth). * Commercial practice the ideal: emphasis on this career as the only
appropriate one.

Strategy Three: Hierarchical Modelling * Students learn to pander to the authority figure; not reciprocated and
mutually respectful. * Status--hungry professors (I only value you if knowing you benefits my
status). * Mirrors junior lawyer - partner relationship. * Outcome: makes students status driven, competitive and hierarchical.



John Dewey (1859--1952) * Not a lawyer (a philosopher of sorts, influenced by Holmes). * Highly critical of abstract philosophising; believes in 'pragmatism'. * Therefore something is 'valid' if evidence from the real world supports it.











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