School of Thought

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Historical school of thought

Definition:

Study on the historical development of law. This law further believes that law, in general, is an outcome
of years of historical development. This studies not only the concept but also the origin of law.
Moreover, this law has a very complex concept. Its understanding depends and varies with every
individual. In other words, everyone has a different understanding of the law.

Its central idea was that a nation's customary law is its truly living law and that the task of jurisprudence
is to uncover this law and describe in historical studies its social provenience.

Developed in German (Savigny) and Britain (Maine)

Reason for studying


Historical thought
1. Reaction against
Naturalists
- They did not believe in
metaphysical approach
(from many sources)
-Metaphysical approach
(All other beliefs and
concepts relied on each
other and thus
all are fundamental –
example of
metaphysical –
existence, purpose,
universals,
property, space, time,
event, knowledge, event.
– AGAINST all the of the
theories.
- Societal practice is the
law (against Natural law)
-Certain principles of
universal
application can be
rationally derived
without taking any
consideration social,
government and other
factors.
2. Reaction against
Positivists
- They oppose the idea
that law comes from the
authority (sovereign-
made-coercive
law devoid of moral and
cultural values)
- It is not made, but be
found and discovered
3. Development of the
law
Dwn to repeat the history
which cruel to the society
-Proposed true law is the
living
law in the society
flourished with the
society and death of the
society.
e.g. French revolution
(imported Roman law in
France), India’s evil
revolutio
Reason for studying
Historical thought
1. Reaction against
Naturalists
- They did not believe in
metaphysical approach
(from many sources)
-Metaphysical approach
(All other beliefs and
concepts relied on each
other and thus
all are fundamental –
example of
metaphysical –
existence, purpose,
universals,
property, space, time,
event, knowledge, event.
– AGAINST all the of the
theories.
- Societal practice is the
law (against Natural law)
-Certain principles of
universal
application can be
rationally derived
without taking any
consideration social,
government and other
factors.
2. Reaction against
Positivists
- They oppose the idea
that law comes from the
authority (sovereign-
made-coercive
law devoid of moral and
cultural values)
- It is not made, but be
found and discovered
3. Development of the
law
Dwn to repeat the history
which cruel to the society
-Proposed true law is the
living
law in the society
flourished with the
society and death of the
society.
e.g. French revolution
(imported Roman law in
France), India’s evil
revolutio
Reason for studying Historical thought

1. Reaction against Naturalists

- They did not believe in metaphysical approach (from many sources)

-Metaphysical approach (All other beliefs and concepts relied on each other and thusall are
fundamental – example of metaphysical – existence, purpose, universals,property, space, time,
event, knowledge, event. – AGAINST all the of the theories.
- Societal practice is the law (against Natural law) -Certain principles of universalapplication can be
rationally derived without taking any consideration social,government and other factors.

2. Reaction against Positivists

- They oppose the idea that law comes from the authority (sovereign-made-coercivelaw devoid of moral
and cultural values)

- It is not made, but be found and discovered

3. Development of the law Dwn to repeat the history which cruel to the society

-Proposed true law is the livinglaw in the society flourished with the society and death of the society.e.g.
French revolution (imported Roman law in France), India’s evil revolution
Savigny's theory of Law
Savigny: Its central idea
was that a nation's
customary law is its truly
living law and
that the task of
jurisprudence is to
uncover this law and
describe in historical
studies
its social provenience.
- Germany philosopher
who also as Founder of
Historical thought -
- He opposed the idea of
importation of law such
as French revolution
(Factor:
importation of Roman law
into France law) &
Democracy in India.
Savigny never
wanted to repeat this
history into Germany law.
- known as Volkgeist
a. the “People’s spirit”
which is the determining
factor of law – Legal
system was a
part of culture of people
Law was not the result of
the result of an arbitrary
act of a
legislation but developed
as a response to the
impersonal powers to
found in the
people national spirit.
b. the reflection of the
majority will of the
people – Reflection on
the populism and
the acceptance of the
people -simple majority /
major majority -Is Brexit
the will of
the people? Does the
voting really reflect the
will of the people?
c. It is the common
consciousness of the
people – if people do not
like it, it is not
law, if people like it, it is
law. Set of shared beliefs,
ideas, attitudes and
knowledges
that are common to a
social group or society –
collective consciousness.
People’s
consciousness or will
consists of traditions,
habits, practice, beliefs of
the people.
Example of common
consciousness: Gender
norms concerning how
people dress and
act, rituals such as
parades for holidays and
wedding, laws that
socialize people into
what is “right and wrong”
in their society
PHILOSOPHY OF SCORATES
In it, Plato attempts to find justice in an unjust action. He wants to reconcile the injustice of his beloved
friend’s execution with the respect that he has for the city and its laws. Certainly that is no simple feat,
and one that some might say Plato did not entirely accomplish.

To understand this dialogue, one first must distinguish between the lower case and upper case words –
laws vs. Laws, respectively. The latter represents something much grander than the collective ideas of
men or the wisdom of a lawmaker. The Law is an ideal, a form, an entity – personified and perfect. And
it’s Plato’s way out… a method for Socrates to remain good by following what is Just in the concept of
the Laws, rather than obeying the evil of his unjust accusers who unethically utilize mere laws to kill him.

We begin the dialogue with Socrates in his cell, his imminent death casting a long shadow on the
proceedings. His friend, Crito, has found him asleep and, impressed by his quiet slumber, does not want
to wake him up to face his unfortunate reality. When finally Socrates comes to, Crito implores him to
escape, employing, at times, astute logic to make his case.

He begins, perhaps, with a selfish point. Should Socrates allow himself to be killed, others will think his
friends were not loose enough with their purses to rescue him. Crito makes clear that Socrates need not
worry about his friends’ welfare or wallets. The provocative philosopher has sufficient benefactors to
ensure his escape.

Crito’s second argument addresses the injustice of those who accused and sentenced him. By fulfilling
their decision, Socrates is acting unjustly. By refusing to escape, he treats himself as his enemies treat
him. This, says Crito, is morally wrong.

Lastly, Crito pleads for Socrates to think of his children, who will become orphans if he dies.
He beseeches: “You appear to me to betray your own sons, who, when it is in your power to rear
and educate them, you will abandon, and, so far as you are concerned, they will meet with such a
fate as chance brings them, and as is probably, they will meet with such things as orphans are wont
to experience in a state of orphanage”.
As a philosopher, it is Socrates’ aim it to reveal ignorance and inspire knowledge. Would he deny his
own progeny his lessons?
Socrates, in turn, counters these arguments with his own. He attacks Crito’s concern for public
approval, responding that the only opinions that matter, are of those with knowledge. In a swift
rebuttal, he states: “what we ought to consider is not so much what people in general will say about
us but how we stand with the expert in right and wrong, the one authority, who represents the actual
truth.”
The matter at hand is not what people will think of Socrates. The real question is: is it Just to
escape? Even if his punishment is unjust, he should still not act unrighteously. Here Socrates
combats the idea of an ‘eye for an eye’, making the point that it is never right to do an injustice, even
if you suffered an injury first. Therefore, he won’t leave his prison if the departure is proved to be
unrighteous.
Crito concedes this point… but it still doesn’t address whether escape is Just. To answer this riddle,
Socrates conjures the Laws, which confront and question the philosopher.
The Laws take the stance that escape is unjust, for disobeying the rules would, in effect, destroy the
Laws and what they stand for. The State is held together by the Laws, and if the latter were to fall
into disarray, the former would collapse as well. Therefore, Socrates’ illegal departure would be an
affront the city-state that reared him. He argues allegiance to the State is more important than one’s
well being or ties to their family…
Finally Socrates concludes that by living in Athens, he has agreed to her Laws. Not only that, he
reared his children in the famous city-state and stayed there his whole, long, 70 years of his life. If he
didn’t agree with the Laws, he could have left at any time, but chose not to.
The fact that the Laws are personified in Crito is important for our understanding of the “social
compact” as viewed by Socrates. This is not Rousseau’s famous social contract, though it does at first
appear that way. In the 18th century concept, the state or sovereign is a direct consequence of the
people’s general will. Therefore, the social contract is an agreement between citizens to live together
under the same laws. For Plato, however, this agreement is not made between citizens. It’s made
between the individual citizen and the Laws – an entity in and of itself.

For Plato and for Socrates, the Laws are more like the ‘forms’ – an abstract idea that represents the
fundamental essence of a thing. A chair, as we know it, is not just the thing we sit on, that you may be
sitting on right now. It is also an idea of something that we sit on. Therefore, we can all look at a chair
and say, “Yes, that is chair,” having in our minds a form of what a chair is.

In this way the Laws are something greater, purer than laws. The Laws are always Just, according to
Socrates, but a law can be unjustly used.

Main points
Socrates obeyed what he regarded as an unjust verdict. Crito offered him an easy escape
but instead he went to his legally mandated death despite believing that the conviction
and sentence were wrong.** He makes his case in the Apology.
Martin Luther King, Jr. disobeyed what he regarded as an unjust application of the
law. He helped organize a parade without a permit on the grounds that doing so was
necessary to reform the unjust system of legalized racial segregation.
We talked about their different positions. With Socrates, we were primarily
interested in evaluating his arguments. With King, we focused on what distinguishes
civil disobedience from other, less civil, kinds.

Legal authority
Socrates’ claim that disobedience would destroy the laws is silly. Therefore, so his is
claim that doing so would involve an intention to destroy the laws.
At least, that’s what I think. Socrates had some able defenders and it would be
presumptuous of me to insist that I’m right. Fortunately, what I want to say doesn’t
depend on settling the issue. This is because even I think there’s a good point in what
Socrates said. It’s this. Accepting a legal authority involves accepting its
judgments apart from your own judgment of the merits of the case.
When I say “apart from”, I mean the fact that a judgment came from the authority
is, all by itself, a reason for accepting that judgment. Thus, if you heard that the legal
authority had decided citizen Q was guilty of a crime, you would have a reason to accept
Q’s guilt even before you had heard any of the evidence or even what the charge was.
What I do not mean is that the fact that a judgment came from an authority is, all
by itself, a conclusive reason for accepting that judgment. Thus, once you heard the
evidence, you might conclude that Q is, in fact, not guilty, despite the fact that the
authority reached the opposite conclusion.
In other words, the laws only work if we give the judgments of legal authorities
weight on their own, apart from our own beliefs about the merits of their decisions. But
we need not give the authorities’ judgments absolute weight. Crito rejected legal
authority to the extent that he urged Socrates simply to substitute his own judgment for
that of the legal authorities.

Socrates on legal obligation


Socrates’s understanding of legal obligation rests a lot on analogies with personal
morality. He holds that there are two reasons why we are obliged to obey the laws.
1. Gratitude: the laws play a role for us like the role played by people to whom we
are obliged to be grateful.
2. Contract: Socrates agreed to obey the laws.
We pushed on the strength of these analogies, particularly as they apply to Socrates’s
specific case.
We also raised questions about one of Socrates’s premises: one must never do a
wrong in response to a wrong. We asked whether disobedience would really be a wrong
or be harmful to the laws.

King on civil disobedience


King thought that at least some kinds of disobedience in some circumstances could
improve the laws rather than harming them.
We spent the bulk of our time talking about exactly how to characterize the
disobedience that King had in mind. It certainly isn’t the kind of disobedience involved
in ordinary crime, for instance.
Nor, in my opinion, was King’s civil disobedience meant to be revolutionary. It
worked resolutely within the state rather than seeking its overthrow or illegal
modification. In other words, King did not seek to go outside of the normal process to
install a new government friendly to the civil rights movement. He sought to persuade
the existing one or, if that didn’t work, to elect a new one in the normal way.
We looped around the issue of terrorism a number of times. I said that it seemed to
me that there is an important difference between trying to achieve your aims by
instilling terror in your opponents and doing so by making an articulate point.
We also noted a similarity between Socrates and King: they both accepted the legal
system’s punishment.
I’m just scratching the surface here. Plus, it’s getting late: it’s almost 9 pm! Bed
time.So here, courtesy of Jonathan, is as succinct a summary of our conversation as I
can provide. Thanks Jonathan!

Legal realism
Primary tabs
A theory that all law derives from prevailing social interests and public
policy.  According to this theory, judges consider not only abstract rules, but
also social interests and public policy when deciding a case.  In this respect,
legal realism differs from legal formalism.  Either theory can be understood
in a descriptive way, prescriptive way, or both ways at once.

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