1.2 Schools of Legal Thought

Legal positivism is law posited (set down—as in the word “deposit”) by authority. As legal philosopher John Austin concisely put it, “Law is the command of a sovereign.” Law is only law, in other words, if it comes from a recognized authority and can be enforced by that authority, or sovereignThe authority within any nation-state. Sovereignty is what sovereigns exercise. This usually means the power to make and enforce laws within the nation-state.—such as a king, a president, or a dictator—who has power within a defined area or territory. In the United States, sovereign authority would include the president, the Congress, and the federal courts and, on the state level, the same three branches of government.

The positive-law school of legal thought would recognize the lawmaker’s command as legitimate; questions about the law’s morality or immorality would not be important. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law. Mohandas Gandhi led a movement in colonial India to free itself from British rule, and the movement, like Nelson Mandela’s in South Africa, was guided by the same principles that animated the movement for civil rights for African Americans in the 1960s. Yet not all civil disobedience is peaceful; opponents of Bashar al-Assad took up arms, and became “terrorists,” and have been unsuccessful in resisting al-Assad’s authoritarian ways.

The natural-law schoolThe legal philosophy that there are certain universal rules recognized by everyone, and that the law should be based on those universal principles. of thought emphasizes that law should be based on a universal moral order. Natural law was “discovered” by humans through the use of reason and by choosing between that which is good and that which is evil. Here is the definition of natural law according to the Cambridge Dictionary of Philosophy: “Natural law, also called the law of nature in moral and political philosophy, is an objective norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler, but binding on all people alike and usually understood as involving a superhuman legislator.”

Both the U.S. Constitution and the United Nations (UN) Charter have an affinity for the natural-law outlook, as it emphasizes certain objective norms and rights of individuals and nations. The U.S. Declaration of Independence embodies a natural-law philosophy. The following short extract should provide some sense of the deep beliefs in natural law held by those who signed the document.

The natural-law school has been very influential in American legal thinking. The idea that certain rights, for example, are “unalienable” (as expressed in the Declaration of Independence and in the writings of John Locke) is consistent with this view of the law. Individuals may have “God-given” or “natural” rights that government cannot legitimately take away. Government only by consent of the governed is a natural outgrowth of this view.

Civil disobedience—in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.—becomes a matter of morality over “unnatural” law. For example, in his “Letter from Birmingham Jail,” Martin Luther King Jr. claimed that obeying an unjust law is not moral and that deliberately disobeying an unjust law is, in fact, a moral act that expresses “the highest respect for law”: “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. . . . One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.”

The historical school of law The legal philosophy that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments. 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 schoolLaws and doctrines change over time to remain currently relevant. 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 thoughtJurisprudential school that believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. . 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 (refer to Chapter 2 “Introduction to Business Ethics ”). 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 modern society.

Related to the CLS school, yet different, is the ecofeminist school of legal thoughtThe jurisprudence observing that the same social mentality that leads to domination and exploitation of women is at the root of man’s exploitation and degradation of the natural environment. . 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.