Name: Akshat Sharma

SAP ID: 590013638

TOPIC: SCHOOLS OF LAW

1. Natural Law

Historical Beginnings A concept going way back into the history of legal and philosophical thought
with its background going as far as the philosophies of Ancient Greece, and it was specifically
Aristotle who gave form to the concept of justice as a virtue inherent in human nature and thus laid
some first stones in what would then become known as natural law theory.

His work assumed that man-made laws should be representative of the order of nature, which in
turn is reflective of an order of divine or metaphysical truth. Cicero later elaborated this reasoning by
stating that true law is right reason in agreement with nature, universal in application, unchangeable,
and eternal. When Christianity spread throughout Europe, teachings of St. Augustine and
particularly St. Thomas Aquinas in the Middle Ages gave natural law a theological dimension.
Aquinas was the one who forged a systematic approach in his "Summa Theologica," including
Aristotelian philosophy with Christian doctrine.

He described a hierarchy of laws: the eternal law of God, which humans can only partially
understand; the natural law, accessible through reason, which reflects eternal law; and human law,
which should be an application of natural law but often deviates due to human imperfection. The
impact is enormous-a moral guide for the individual and for state legislation.

Major Principles

In fact, Natural Law theory posits several latent principles:

- Moral Objectivity: Natural Law theorists believe that there exist objective moral truths accessible to
human reason to guide all law. Therefore, it means that there is an ordered world of morality
independently of manmade law.

- Inalienable Rights: Natural rights are those rights that are inherent and belonging to human beings
and their natures rather than those conferred to them by governments. Rights are regarded to be
intrinsic in nature and so laws that run against such rights are considered unjust.

- Justice and Morality: In Natural Law, it is claimed that for a law to stand, there must exist some form
of justice and harmony with moral principles. Any rules which violate such natural laws are
themselves considered unjust and, in some conceptions, not laws at all.
- Common Good: Legislation should be for the common good, promoting conditions where all can
flourish under natural goods like life, procreation, knowledge, and friendship.

It, in turn, has given much influence to legal documents and movements, the most prominent being
found in the American Declaration of Independence, where the principle of "self-evident truths" and
"unalienable Rights" is being claimed.

Contemporary Analyses In the modern period, there has been a renaissance of natural law, most
especially by John Finnis, who attempted to find a theory substantially less dependent on religious
premises and more accessible through secular reason. A summary of the exposition by John Finnis in
"Natural Law and Natural Rights" is as follows: - Basic Human Goods: He singles out a list of basic
goods such as knowledge, life, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion in a rather broad sense. Laws ought to foster these goods.

- Principles of Practical Reason: These provide guidance on how one might pursue those goods;
require coherence in life projects and respect for the same goods in others.

This approach by Finnis has proven crucial in debates regarding human rights, debates concerning
the moral force of law, and discussions about bioethics as "principles of natural law help articulate
difficult moral landscapes like abortion, euthanasia, and genetic engineering.".

However, natural law theory is not without critics:

- Cultural Relativism: Critics also argue that concepts of 'natural' or moral things can differ profoundly
with cultures, thus contradicting the idea of natural law's universality. - Complexity in Application: It
implies what natural law prescribes in the face of contemporary challenges, such as advancements in
technology or globalization based ethical dilemmas; this is controversial. - Separation of Law and
Morality: Legal positivists like H.L.A. Hart have criticized the collision of law with morality and
asserted that the subject of law should be studied in separation from moral judgments. Despite all
this criticism, the voice of natural law remains in legal theory and practice, especially within areas of
international human rights law wherein principles are held out to have a basis beyond the confession
of positive law in justice and human dignity. Its legacy is the perennial debate over the moral
obligations of legal systems, the justification of rights, and the role of morality in law. This enduring
relevance assures that the debate over natural law will keep forming part of legal thought for
centuries to come.
2. Legal Positivism

Philosophical Foundations Legal Positivism was the real significant counterpoint to natural law; it
separated the question of what law is from what law ought to be. It really began with the
Enlightenment era and important figures like Thomas Hobbes laying the groundwork by putting all
emphasis on sovereign command as the source of law.

It was Jeremy Bentham who, in systematically criticizing natural law, added a condition that law can
be empirically studied instead of thinking of its actual existence and not of its moral quality.

Bentham's Utilitarianism: Bentham was a utilitarian. Law should be for the greatest good of the
greatest number, but this was to be achieved in terms of observable and measurable outputs rather
than being through moral injunction.

- John Austin's Command Theory: Austin's The Province of Jurisprudence Determined suggested law
to be the command of the sovereign, habitually obeyed, backed by the threat of sanction. Again, it
offered greater importance to the form of source than to the content or morality of law.

Legal Positivism holds the view that law's validity is in no way determined by its moral content but by
source most often acts of legislation or judicial acts of the state. Such a division is central to the
separation thesis by which law and morality was separated.

H.L.A. Hart's Legacy

H.L.A. Hart also developed legal positivism through "The Concept of Law." He attacked the command
theory of Austin because it is so simple-minded, and then:

- Primary and Secondary Rules: Primary rules govern human behaviour directly, but secondary rules
are concerned with the operation of primary rules, including identification of law through rules of
recognition, how laws are made through rules of change, and resolving disputes through rules of
adjudication.

- The Rule of Recognition: This is critical because it gives meaning to what counts as law in a
particular legal system and has criteria for legal validity independent of moral judgment.

- Internal vs. External Viewpoints: Hart distinguished seeing rules from an internal standpoint of view
(one accepts the rules as reasons for action) and an external one (one sees only behaviour patterns).

The subtle version of positivism offered by Hart introduced a more dynamic interpretation of law
that could accommodate the complexity of legal systems without seriously compromising the
distinction of law from morality.

Current Trends Legal Positivism has developed in response to criticism and changes in the legal
environment:
Inclusive vs. Exclusive Legal Positivism:

Inclusive Positivism or soft positivism, asserts that moral principles may come to be among the
criteria of legal validity if only the rule of recognition includes them. It emerged as an effort to
answer objections levelled that positivism could not explain why laws containing moral elements are
classified as valid. Exclusive Positivism is the "hard positivism." In this view, moral criteria could never
be included as part of the rule of recognition; the validity of law is purely a question of social facts. -
Effects on Legal Application: Formal sources of the law, which positivism has stressed, are practical
effects: focusing first attention on interpretation of statutes and judicial precedent and finally the
sovereignty of legislation in determining what is the law. Criticism and Defence: Positivism has been
said to produce morally vacuous or even oppressive laws, famously encapsulated in the Hart-Fuller
debate where Lon Fuller challenged the separation thesis by pointing out the moral dimensions of
law. Defenders of positivism thus argue that it provides clarity and stability, whereby legal reform can
be accomplished through democratically organised processes rather than judicial moralizing. It then
goes beyond jurisprudence to legal practice. Its contribution is on the positive aspect of the empirical
study of law, enlightening one as to how legal systems work, formulating legislation, and how courts
make decisions. It contributed first and foremost to the formation of contemporary legal education:
that is, a focus on the mechanics of rather than the meaning of law. However, in a world ever more
obsessed with human rights, environmental law, and global justice, legal positivism struggles to
overcome challenges. In the 21st century, legal positivism must reconcile those foundational
principles of old with a much-needed requirement for laws that represent current ethics and the
sensibilities of the international community, straddling the clarity that formalism provides with the
moral imperatives of our times.
3. Legal Realism

American Legal Realism

Legal Realism, specifically American legal realism, emerged in the early 20th century as a response to
the perceived formalism of classic thought on legal matters. Thus, Legal Realism attempted to dispel
the notion that law could be reduced to a set of logical deductions from immutable principles or
statutes. Instead, Legal Realism emphasized the role of judges, their personal beliefs, societal
pressures, and the practical effects of legal decisions:

- Oliver Wendell Holmes Jr.: In the opinion of many, Holmes was a precursor to this very idea, that
laws are nothing more than predictions of what factually courts will do, not about what they ought
to do. His dictum, "The life of the law has not been logic; it has been experience," represents this
pragmatic approach.

- Karl Llewellyn and Jerome Frank: They took this strand further by elaborating on the actual working
of law. Llewellyn's "law-jobs" explained that law performs social functions, and an understanding of
those functions requires a study beyond the written law and its role in the behaviour of legal actors.
Frank highlighted the fact that judges deliver judgments under uncertainty and indeterminacy and
maintain subjective factors rather than pure rules of law in determining any case.

- Criticism of Formalism: Realists cautioned against the potential that law might become an isolated
system such that results would flow mechanically through merely reading legal texts; they would
point out how social, political, and economic factors affect law resulting.

Scandinavian Legal Realism

Alongside the American developments came a more philosophical critique of law from Scandinavian
Legal Realism:

- Axel Hagstrom: He attacked the metaphysical basis of legal conceptions, arguing that such
supposedly 'objective' words as 'right' and 'duty' are psychological fictions. His aim was to strip away
some of the incantation associated with law by depicting it more simply as a collection of social
practices rather than as a mirror of an invariable moral order.

- Alf Ross: Ross developed Hagstrom’s conceptions and furthered them by arguing that the law
should remain scientific and empirical. He further argued that the essence of legal validity goes
about social behaviour instead of abstract principles, concentrating on the predictive aspect of legal
norms.

Scandinavian realism, on the other hand, concentrated more on logical and semantic analysis of legal
language and debated whether legal statements could countably be called true or false in any
objective sense.

Realism in Modern Legal Thought The legacy of Legal Realism has profoundly shaped modern legal
theory and practice:

- Law and Economics: This movement, inspired by realism's concentration on concrete outcomes,
makes use of economic analysis to predict and critique legal decisions, focusing on efficiency and
behavioural incentives.

- Critical Legal Studies (CLS): Although CLS is by no means a direct offspring, it took on the scepticism
of realism regarding legal formalism to challenge law as an instrument of power and ideology.

- Judicial Decision-Making: Realism did indeed shape our understanding of judicial behaviour, such as
how judicial philosophy, personal biases, and socio-political context influence the law.
Empirical Legal Studies: Empirical research into the actual work of law is on the rise, inspired by
realist methods. These studies range from judicial behaviour to the impact of laws on society.

Debates on Objectivity in Law:

Legal Realism has sparked fierce controversy over the objectivity of law

- Indeterminacy Critique: Realists argue that legal rules are indeterminate, leading to multiple
possible interpretations, thus making law less predictable and more influenced by non-legal factors. -
For the formalists, even as judges exercise discretion within such a framework, laws create a
framework of possibilities that are very sharply limited, ensuring, thus, some degree of predictability
and objectivity. - Balancing Act: Modern legal theory today attempts to balance the insights of
realism by arguing that the "law also has an inner logic and coherence which can be used to predict
judicial rulings.". Legal Realism has indeed left its striking mark on jurisprudence, pushing towards a
far less abstract and more realistic understanding of the law. That legacy seems to have imparted in
us the way of looking beyond the text for the human elements in law-making and law-applying and,
challenging us not only to reassess how law interacts with the complexities of human society but also
to continually question the parting words of the author that the best law reform is one which the
circumstances in which it is applied can make living and speaking through.

4. Critical Legal Studies and Beyond

Critical Legal Studies (CLS)

Critical Legal Studies emerged in the late 1970s in the United States, largely as a response to what its
adherents saw as the conservative and apolitical nature of traditional legal scholarship. CLS scholars
sought to:

- Deconstruct Legal Doctrine: They argued that law is not neutral but inherently political, serving to
maintain power structures and social hierarchies. By deconstructing legal doctrines, CLS aimed to
reveal how law perpetuates inequalities.

- Challenge Legal Formalism: Much like Legal Realism, CLS critiqued the idea that law could be
understood solely through formal analysis, emphasizing instead the indeterminacy of law and the
role of ideology in legal interpretation.

- Social Critique Activism: CLS was not only to critique but also to be used to advocate for social
change, and it promised to propose alternative legal visions that would resonate more closely with
egalitarian ideals.
Duncan Kennedy, Roberto Manga Beira Unger, and Mark Tuten, among others, brought attention to:

Legal Education: Law school’s charge with socializing students into a regime that perpetuates
injustice, yet they argue that law faculties should reorient towards critical thought about the law's
place in society.

- Rights Critique: CLS scholars have often been critical of rights discourse, seeing rights language as at
once empowering and limiting, depending on the context and who wields them.

Feminist and Critical Race Theory

Such internal shifts within jurisprudence take the critique of law beyond class and include gender
and race, as well as intersectionality:

- Feminist Jurisprudence: This branch of thinking reviews how law has historically been structured in
a patriarchal society; it often speaks against women. Key themes encompass:

- Dominance Theory: Posits that law reflects and secures male dominance.

- Cultural Feminism: Seeks to construct laws that embody women's values and experiences.

- Liberal Feminism: Seeks equality through reforms in the existing structures.

- Critical Race Theory (CRT).: CRT challenges the ways race and racism are ingrained in legal
structures. It posits:

- Race as a Social Construct: Critical examination of how laws construct racial categories and
perpetuate racial hierarchies.

Interest Convergence: The idea that civil rights progress for minorities occurs only when it aligns with
the interest of the majority, white society.

- Intersectionality: Assumes that race is intricately linked with various other modes of oppression,
including gender, class, and sexuality, and even influences justice outcomes.

Feminist jurisprudence and CRT both call for a renewed evaluation of legal education, practice, and
theory to form less hegemonic justice systems.

Postmodern and Global Perspectives

- Postmodernism in Law: Postmodern legal theories challenge grand narratives, such as the stories of
legal progress or the inevitability of the occurring of certain legal results:

- Deconstruction: Using Derrida's techniques to uncover contradiction and ambiguity in law texts.

- Narration and Storytelling: Starting from individual narratives in law-to counter and overcome the
hegemonic narratives of law.

- Global Legal Pluralism: With the growing intensity of globalization legal scholars face more and
more frequently:

- Plural Legal Systems: Accepting the fact that there are several legal systems and traditions operating
both in tension and in harmonious interaction.

- Transnational Law: The understanding of how legal norms transcend national borders, impacting
international business, human rights, and environmental law.

Such pluralism challenges the acceptance of a Western-centric view of law and thus leads to a
jurisprudence that assimilates diverse legal cultures and practices.

Present Relevance and Challenges:

Let us have Legal Education Reform ensure that graduates coming out of law schools know how to
handle the problems involved in law's complexity beyond its traditional doctrines.

- Law and Technology: Rapid developments in technology give rise to new questions for legal theory,
such as privacy rights in a digital age or ethical considerations of AI in the decision-making process.

- Social Movements and Law: How movements like MeToo or Black Lives Matter influence or
challenge legal norms, pushing for reforms that reflect contemporary social values.

- Global Justice: The challenge of applying legal theory to global issues like climate change, migration,
and transnational crime requires jurisprudence to be both critical and adaptive.

This transition from CLS to more all-inclusive and world-conversant theoretical frameworks promotes
a dynamic discipline where law is not only a cluster of dos and don'ts but a battlefield of ideas,
values, and visions for society. This does the ongoing dialoguing in which jurisprudence stays
relevant, questioning, and reshaping the landscape of law to meet the calls of the changing world.
References

Natural Law:

Finnis, J. (1980). Natural law and natural rights. Oxford University Press.

Aquinas, T. (1948). Summa Theologica (Fathers of the English Dominican Province, Trans.). Benziger
Bros. (Original work published 1265-1274)

Legal Positivism:

Hart, H. L. A. (1961). The concept of law. Oxford University Press.

Austin, J. (1995). The province of jurisprudence determined (W. E. Rumble, Ed.). Cambridge
University Press. (Original work published 1832)

Bentham, J. (1970). An introduction to the principles of morals and legislation (J. H. Burns & H. L. A.
Hart, Eds.). The Athlone Press. (Original work published 1789)

Legal Realism:

Holmes, O. W. (1897). The path of the law. Harvard Law Review, 10(7), 457-478.

Llewellyn, K. N. (1930). A realistic jurisprudence—the next step. Columbia Law Review, 30(4), 431-
465.

Frank, J. (1930). Law and the modern mind. Brentano's.

Ross, A. (1958). On law and justice. University of California Press.

Hagstrom, A. (1953). Inquiries into the nature of law and morals (C. D. Broad, Ed.; K. Olivera, Trans.).
Almqvist & Wiksell. (Original work published 1911)

Critical Legal Studies and Beyond:

Kennedy, D. (1976). Form and substance in private law adjudication. Harvard Law Review, 89(8),
1685-1778.

Unger, R. M. (1986). The critical legal studies movement. Harvard University Press.

Tuten, M. (1984). An essay on rights. Texas Law Review, 62(8), 1363-1403.

Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of
antidiscrimination doctrine, feminist theory, and antiracist politics. University of Chicago Legal
Forum, 1989(1), 139-167.

MacKinnon, C. A. (1989). Toward a feminist theory of the state. Harvard University Press.

Derrida, J. (1990). Force of law: The "mystical foundation of authority" (M. Quaintance, Trans.).
Cardozo Law Review, 11(5-6), 919-1045.