Philosophy of Law

Final Assignment
School of Laws in Modern Western Law
Aris Fadillah (20100610113)
arisfadillah20@gmail.com
International Program for Law and Sharia
universitas Muhammadiyah Yogyakarta

A. Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which is
that there is a necessary relation between the concepts of law and morality.
According to this view, then, the concept of law cannot be fully articulated
without some reference to moral notions. Though the Overlap Thesis may seem
unambiguous, there are a number of different ways in which it can be interpreted.
Natural law theory asserts that there are laws that are immanent in nature,
to which enacted laws should correspond as closely as possible. This view is
frequently summarised by the maxim an unjust law is not a true law, lex iniusta
non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is
closely associated with morality and, in historically influential versions, with the
intentions of God. To oversimplify its concepts somewhat, natural law theory
attempts to identify a moral compass to guide the lawmaking power of the state
and to promote 'the good'. Notions of an objective moral order, external to human
legal systems, underlie natural law. What is right or wrong can vary according to
the interests one is focused upon. Natural law is sometimes identified with the
maxim that "an unjust law is no law at all", but as John Finnis, the most important
of modern natural lawyers has argued, this maxim is a poor guide to the classical
Thomist position. Schoolar; Aristoteles, Thomas Aquinas, Thomas Hobbes, Lon
Fuller, John Finnis

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B. Legal Positivism
Positivism simply means that law is something that is "posited": laws are
validly made in accordance with socially accepted rules. The positivist view on
law can be seen to cover two broad principles: Firstly, that laws may seek to
enforce justice, morality, or any other normative end, but their success or failure
in doing so does not determine their validity. Provided a law is properly formed,
in accordance with the rules recognized in the society concerned, it is a valid law,
regardless of whether it is just by some other standard. Secondly, that law is
nothing more than a set of rules to provide order and governance of society. No
legal positivist, however, argues that it follows that the law is therefore to be
obeyed, no matter what. This is seen as a separate question entirely.
Opposed to all forms of naturalism is legal positivism, which is roughly
constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the
Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact Thesis
(which is also known as the Pedigree Thesis) asserts that it is a necessary truth
that legal validity is ultimately a function of certain kinds of social facts. The
Conventionality Thesis emphasizes law’s conventional nature, claiming that the
social facts giving rise to legal validity are authoritative in virtue of some kind of
social convention. The Separability Thesis, at the most general level, simply
denies naturalism’s Overlap Thesis; according to the Separability Thesis, there is
no conceptual overlap between the notions of law and morality. Schoolar; Jeremy
Bentham, John Austin, Hans Kelsen, H. L. A. Hart

C. Legal Realism
The legal realist movement was inspired by John Chipman Gray and
Oliver Wendall Holmes and reached its apex in the 1920s and 30s through the
work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed
the conceptual approach of the positivists and naturalists in favor of an empirical
analysis that sought to show how practicing judges really decide cases (see Leiter
1998). The realists were deeply skeptical of the ascendant notion that judicial
legislation is a rarity. While not entirely rejecting the idea that judges can be

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constrained by rules, the realists maintained that judges create new law through
the exercise of lawmaking discretion considerably more often than is commonly
supposed. On their view, judicial decision is guided far more frequently by
political and moral intuitions about the facts of the case (instead of by legal rules)
than theories like positivism and naturalism acknowledge.
As an historical matter, legal realism arose in response to legal formalism,
a particular model of legal reasoning that assimilates legal reasoning to syllogistic
reasoning. According to the formalist model, the legal outcome (that is, the
holding) logically follows from the legal rule (major premise) and a statement of
the relevant facts (minor premise). Realists believe that formalism understates
judicial lawmaking abilities insofar as it represents legal outcomes as entailed
syllogistically by applicable rules and facts. For if legal outcomes are logically
implied by propositions that bind judges, it follows that judges lack legal authority
to reach conflicting outcomes.
Legal realism can roughly be characterized by the following claims:
1. the class of available legal materials is insufficient to logically entail a
unique legal outcome in most cases worth litigating at the appellate level
(the Local Indeterminacy Thesis);
2. in such cases, judges make new law in deciding legal disputes through the
exercise of a lawmaking discretion (the Discretion Thesis); and
3. judicial decisions in indeterminate cases are influenced by the judge’s
political and moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply (2):
insofar as judges decide legally indeterminate cases, they must be creating new
law.
It is worth noting the relations between legal realism, formalism, and positivism.
While formalism is often thought to be entailed by positivism, it turns out that
legal realism is not only consistent with positivism, but also presupposes the truth
of all three of positivism’s core theses. Indeed, the realist acknowledges that law
is essentially the product of official activity, but believes that judicial lawmaking
occurs more frequently than is commonly assumed. But the idea that law is

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essentially the product of official activity presupposes the truth of positivism’s
Conventionality, Social Fact, and Separability theses. Though the preoccupations
of the realists were empirical (that is, attempting to identify the psychological and
sociological factors influencing judicial decision-making), their implicit
conceptual commitments were decidedly positivistic in flavor. The essential tenet
of legal realism is that all law is made by human beings and, thus, is subject to
human foibles, frailties and imperfections.

D. Critical Legal Studies

Critical legal studies (CLS) is a theory that challenges and overturns
accepted norms and standards in legal theory and practice. Proponents of this
theory believe that logic and structure attributed to the law grow out of the power
relationships of the society. The law exists to support the interests of the party or
class that forms it and is merely a collection of beliefs and prejudices that
legitimize the injustices of society. The wealthy and the powerful use the law as
an instrument for oppression in order to maintain their place in hierarchy. The
basic idea of CLS is that the law is politics and it is not neutral or value free.
Many in the CLS movement want to overturn the hierarchical structures of
domination in the modern society and many of them have focused on the law as a
tool in achieving this goal. CLS is also a membership organization that seeks to
advance its own cause and that of its members.
CLS was officially started in 1977 at the conference at the University of
Wisconsin-Madison, but its roots extend back to 1960 when many of its founding
members participated in social activism surrounding the Civil Rights movement
and the Vietnam War. Many CLS scholars entered law school in those years and
began to apply the ideas, theories, and philosophies of post modernity (intellectual
movements of the last half of the twentieth century) to the study of law. They
borrowed from such diverse fields as social theory, political philosophy,
economics, and literary theory. Since then CLS has steadily grown in influence
and permanently changed the landscape of legal theory. Among noted CLS

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theorists are Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horwitz,
Duncan Kennedy, and Katharine A. MacKinnon.
Although CLS has been largely a U.S. movement, it was influenced to a
great extent by European philosophers, such as nineteenth-century German social
theorists Karl Marx, Friedrich Engels, and Max Weber; Max Horkheimer and
Herbert Marcuse of the Frankfurt school of German social philosophy; the Italian
marxist Antonio Gramsci; and poststructuralist French thinkers Michel Foucault
and Jacques Derrida, representing respectively the fields of history and literary
theory. CLS has borrowed heavily from Legal Realism, the school of legal
thought that flourished in the 1920s and 1930s. Like CLS scholars, legal realists
rebelled against accepted legal theories of the day and urged more attention to the
social context of the law.
CLS includes several subgroups with fundamentally different, even
contradictory, views: feminist legal theory, which examines the role of gender in
the law; critical race theory (CRT), which is concerned with the role of race in the
law; postmodernism, a critique of the law influenced by developments in literary
theory; and a subcategory that emphasizes political economy and the economic
context of legal decisions and issues.

E. Utilitarianism
Utilitarianism, by John Stuart Mill, is an essay written to provide support
for the value of utilitarianism as a moral theory, and to respond to misconceptions
about it. Mill defines utilitarianism as a theory based on the principle that "actions
are right in proportion as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness." Mill defines happiness as pleasure and the
absence of pain. He argues that pleasure can differ in quality and quantity, and
that pleasures that are rooted in one's higher faculties should be weighted more
heavily than baser pleasures. Furthermore, Mill argues that people's achievement
of goals and ends, such as virtuous living, should be counted as part of their
happiness.

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 Mill argues that utilitarianism coincides with "natural" sentiments that
originate from humans' social nature. Therefore, if society were to embrace
utilitarianism as an ethic, people would naturally internalize these standards as
morally binding. Mill argues that happiness is the sole basis of morality, and that
people never desire anything but happiness. He supports this claim by showing
that all the other objects of people's desire are either means to happiness, or
included in the definition of happiness. Mill explains at length that the sentiment
of justice is actually based on utility, and that rights exist only because they are
necessary for human happiness.
The theory of utilitarianism has been criticized for many reasons. Critics
hold that it does not provide adequate protection for individual rights, that not
everything can be measured by the same standard, and that happiness is more
complex than reflected by the theory. Mill's essay represents his attempt to
respond to these criticisms, and thereby to provide a more complex and nuanced
moral theory.
Mill's argument comprises five chapters. His first chapter serves as an
introduction to the essay. In his second chapter, Mill discusses the definition of
utilitarianism, and presents some misconceptions about the theory. The third
chapter is a discussion about the ultimate sanctions (or rewards) that utilitarianism
can offer. The fourth chapter discusses methods of proving the validity of
utilitarianism. In his fifth chapter, Mill writes about the connection between
justice and utility, and argues that happiness is the foundation of justice.

F. Sociological Jurisprudence
Sociological jurisprudence is a term coined by the American jurist Roscoe
Pound to describe his approach to the understanding of the law. This
philosophical approach to law stresses the actual social effects of legal
institutions, doctrines, and practices. The sociology of law is often distinguished
from sociological jurisprudence. The latter is not primarily concerned with
debates within mainstream sociology and instead engages with some of the
debates within jurisprudence and legal theory. Sociological jurisprudence seeks to

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base legal arguments on sociological insights and, unlike legal theory, is
concerned with the mundane practices that create legal institutions and social
operations which reproduce legal systems over timgie. It was developed in the
United States by Roscoe Pound and by earlier jurists, such as Eugen Ehrlich and
Georges Gurvitch, in Europe.
Although distinguishing between different branches of the social scientific
studies of law allows us to explain and analyse the development of the sociology
of law in relation to mainstream sociology and legal studies, such potentially
artificial distinctions are not necessarily fruitful for the development of the field as
whole. For the social scientific studies of law to transcend the theoretical and
empirical limits, which currently define their scope, they need to go beyond such
artificial distinctions. It examines the actual effects of the law within society and
the influence of social phenomena on the substantive and procedural aspects of
law. This is also known as sociology of law.

G. Historical School
The Historical School is based on the writings and teaching of Gustav
Hugo and especially Friedrich Carl von Savigny. Natural lawyers held that law
could be discovered only by rational deduction from the nature of man.
The basis premise of the Historical School is that law is not to be regarded as an
arbitrary grouping of regulations laid down by some authority. Rather, those
regulations are to be seen as the expression of the convictions of the people, in the
same manner as language, customs and practices are expressions of the people.
The law is grounded in a form of popular consciousness called the Volksgeist.
Laws can stem from regulations by the authorities, but more commonly they
evolve in an organic manner over time without interference from the authorities.
The ever-changing practical needs of the people play a very important role in this
continual organic development.
In the development of a legal system, is it the professional duty of lawyers
– in the sense of the division of labor in society – to base their academic work on

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law on ascertaining the will of the people. In this way, lawyers embody the
popular will.
The Historical School was divided into Romanists and the Germanists. The
Romantists, to whom Savigny also belonged, held that the Volksgeist springs from
the reception of the Roman law. While the Germanists (Karl Friedrich Eichhorn,
Jakob Grimm, Georg Beseler, Otto von Gierke) saw medieval German Law as the
expression of the German Volksgeist.
The Historical School has had considerable influence on the academic
study of law in Germany. Georg Friedrich Puchta and Bernhard Windscheid
continued the Romanist vein founded by Savigny, leading to the so called
Pandektenwissenschaft which is seen as Begriffsjurisprudenz (conceptual
jurisprudence).
Historical jurisprudence came to prominence during the German debate
over the proposed codification of German law. In his book On the Vocation of
Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued
that Germany did not have a legal language that would support codification
because the traditions, customs and beliefs of the German people did not include a
belief in a code. The Historicists believe that the law originates with society

Resources
http://www.law.cornell.edu/wex/Critical_legal_theory
http://en.wikipedia.org/wiki/Jurisprudence
http://www.sparknotes.com/philosophy/utilitarianism/summary.html
http://en.wikipedia.org/wiki/German_Historical_School
http://definitions.uslegal.com/s/sociological-jurisprudence/
http://en.wikipedia.org/wiki/Sociology_of_law