Introduction to Legal Theory

Published: 2021-07-01 16:05:04
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Legal theory is a primary subject which could serve as the basis for law and due to its vast theorists and their ideas such as natural law, legal positivism, utilitarianism and feminism, this essay will explain legal theory, legal research and the importance of legal theory and how it is linked to legal research, it will also discuss various theorists and the essay will go further to show the relationship between legal theory and law. Firstly, legal theory can be described as a subject that is taught and learnt in university for law related courses. Legal theory basis its ideas on law and morality which are two main ideologies for law. “The purpose of legal research is to find “authority” that will aid in finding a solution to a legal problem. Primary authorities are the rules of law that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions. They are generated by legislatures, courts, and administrative agencies. Secondary authorities are commentaries on the law that do not have binding effect but aid in explaining what the law is or should be”[1]. Legal research is the process of using both primary and secondary sources to find out more information about law and to come up with solutions for legal problems; it deals with statutes, cases, treaties, laws, critical analysis and facts. In legal theory there are theories which help to structure law in the modern world. Some of these theories are natural law, legal positivism, utilitarianism and feminism. Natural law is based on “what ought to be” and it deals with morals and reasoning. Theorists such as Augustine and Aquinas believed in morality, God and Christian influence. Augustine had the idea that an unjust law is not law while Aquinas believed in the four types of law which were divine law, eternal law, human law and natural law which all had to do with reasoning, morality and religion. This can be linked to law and the legal system that some countries are practicing. Natural law helps students to understand law and legal theory from a natural law point of view. McLeod states that “some natural lawyers look to religious beliefs, while others are content to derive moral foundation from observable facts and certain logical inferences which they claim, may be drawn from them.”[2] The statement that was made from McLeod shows that lawyers that are based in natural law can look at law from a religious belief or from a moral perspective. In addition to this John Finnis and Lon Luvous fuller also had their own theories concerning natural law. Fuller’s theory talks about the development of natural law in a way that is modern and secular, he also goes further to explain inner morality and legal systems that subjects humans to the government of law, “rule of law”. Fuller also believed that a good legal system must have eight components which are (i) to have rules (without rules there is no system), (ii) rules must be published, (iii) law must be prospective, (iv) law must be clear and transparent, (v) rules must be non-contradictory, (vi) possibility to comply, (vii) legal certainty and (viii) rule of law. Finnis has a more different approach, he believes in human fruition, individual law; he believes that the law should promote human fruition. He also talks about the seven universal principles of natural law which are, life, knowledge, play, Ecstatic experience, friendship, practical reasoning and spiritual experience (not necessarily God).Finnis and Fuller can be perceived as a modern day form of natural law theorists. Natural law helps in legal research because it deals with morality which gives the researcher an idea of law that can be linked to human rights. Human rights can be viewed as a factor under natural law which gives the researcher an idea of the relationship between natural law and human rights. Apart from this, legal positivism is also seen to be one of the important areas in Legal theory. Legal positivism takes a more different approach towards law; legal positivism deals with “what is”. “According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. It looks at legal system and how the law of a state should be based on a good legal system.”[3] Theorists such as John Austin, H.L.A Hart and Hans Kelsen talk about good legal systems, rules and norms. Legal positivism also goes further to explain the separation of morality from law hence showing the difference between legal positivism and natural law. Austin believes in a state having a sovereign who is habitually obeyed, gives commands and inflicts sanctions if not followed. His theory is known as the command theory which serves as an important ideology for law. Hart talks about a legal system that consists of primary rules which are only valid if followed from the secondary rules. The secondary rules consist of rules of recognition, rules of change and rules of adjudication. Hans Kelsen talks about grund norm which means the first basic law and how the law should stem from this to form a good legal system in a society. Legal positivism helps in legal research because it gives the researcher an insight of the laws, rules and norms which can be linked to the laws that are used in the modern day society and. Not only this, but legal positivism can also be linked to law as a subject and can help students understand the judgments of cases. Apart from this, another important theorist that should be considered is Jeremy Bentham who was the founder of utilitarianism. This theory talks about the greatest happiness for the greatest number. Bentham used the term “judge made law” as a term of abuse and contempt. Bentham also believed that the price of pleasure or pain depends only on its intensity and duration which can be quantified at least in principle exactly[4] and these are his principle of utility: (i) the good of a society is the sum of happiness of the individuals in that society[5], (ii) the purpose of morality is promotion of the good of society[6], (iii) a moral principle is ideal if and only if universal conformity to it would maximize the good of society[7] and (iv) universal conformity to the principle of UTILITY (“Act always so as to maximize total net balance of pleasures and pains”) would maximize the good of society[8]. Utilitarianism allows human beings to determine what should be in the law by discovering what brings about the greatest amount of happiness and the least amount of pain. Apart from this, Bentham also argued that human beings are basically selfish and therefore should be ruled by a sovereign power that creates the law and the law decides what the people’s rights should be because without law human rights are valueless. This point leads to what Bentham views natural law as which is “nonsense upon stilts” and he believes that “what ought to be” is unimportant because if these rights cannot be seen then how can it be understood. “Bentham holds that natural laws are the product of the imagination of those that invoke them and anyone may lay down what he pleases (Principles of Legislation, Ch. XIII).”[9] The utilitarian theory helps in legal research because it helps the researcher or student understand the relationship between the values of law, pleasure and natural rights in the society. Another theory that can be considered is the feminist theory. Feminism is an ideology that is aimed at defining, establishing and defending equal political, economic and social rights for women. Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in the 1960s[10]. It now holds an important place in law, legal thought and influences many debates on sexual and domestic violence, inequality (glass ceiling) in the workplace, and gender discrimination[11]. Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.[12] Feminism helps in legal research looking at it from the feminist perspective and how that can be related to the society and law. In conclusion legal theory helps to broaden the knowledge of students and legal practitioners on law which gives them the understanding and ideas they need to carry out legal research. It also shows how the various theories and theorists help to understand the relationship between law and the society and also the relationship between legal theory and other law based subjects. 1

[1] Legal research, Cornell University Law School, https://www.law.cornell.edu [accessed 2nd April, 2014] [2] McLeod I, LEGAL THEORY, 6th edition, 2012, palgrave macmillan, pg 19 [3] Legal positivism, Internet Encyclopedia of Philosophy, https://www.iep.utm.edu [accessed 2nd April, 2014] [4] Utilitarian philosophy, https://www.utilitarianphilisophy.com [accessed 9th April, 2014] [5] Utilitarian philosophy, https://www.utilitarianphilisophy.com [accessed 9th April, 2014] [6] Utilitarian philosophy, https://www.utilitarianphilisophy.com [accessed 9th April, 2014] [7] Utilitarian philosophy, https://www.utilitarianphilisophy.com [accessed 9th April, 2014] [8] Utilitarian philosophy, https://www.utilitarianphilisophy.com [accessed 9th April, 2014] [9] Bentham on human rights and liberty, Fidis, https://www.fidis.net [accessed 9th April, 2014] [10] Feminist Jurisprudence, Legal information institute, https://www.law.cornell.edu [accessed 9th April, 2014] [11] Feminist Jurisprudence, Legal information institute, https://www.law.cornell.edu [accessed 9th April, 2014] [12] Feminist Jurisprudence, Legal information institute, https://www.law.cornell.edu [accessed 9th April, 2014]

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