Legal theory

Legal theory

Monday 12th February 2024

There are many ways to call this discipline:

• Legal theory or Jurisprudence, which is widely used in Anglo-Saxon countries. These two names refer to an investigation of legal phenomena based on an analytical (from particular to general) approach. They try to answer questions of the core concepts of the study of law, such as “what is a right?” “How does a judge reason?” “How does the law influence the economy?” etc.
• Legal philosophy or philosophy of law are widely used in continental countries (esp. in Europe). In this case the investigation of legal phenomena is more concerned with the relationship between morals and politics or concepts such as freedom. The approach is more historical, and it starts with a hypothesis (goes from general to particular).

Jurisprudence is the term we will mostly use in this class. It comes from Latin: juris = law, prudence = skilled, and it is used to describe a mere knowledge of law and the scientific investigation of fundamental legal phenomena. It is pervasive.

Only reading the law from the Codes is not enough to deeply understand it, it is also crucial to investigate the deep roots it comes from.

Different approaches

1. Descriptive legal theory: it seeks to explain what the law is, why and its consequences. It looks at law as it is. It can first be “doctrinal”, providing a theory to explain a particular legal doctrine, trying to answer questions such as “can these cases be elucidated by some underlying theory?”.

   Secondly it can be “explanatory”, attempting to explain why the law is as it is. Marxist legal theory, for example, falls into this category since it offers an account of law as expressing the interest of the ruling class.

   Lastly it is concerned with the consequences that are likely to follow from a certain set of legal rules.

2. Normative legal theory is concerned with values. It is associated with moral and political theories. This kind of theories can either be “ideal”, when they investigate what legal rules would create the best legal system (if it were achievable) or “non-ideal”, when it deals with how a legal system could be improved (dal libro: The latter presuppose an assortment of constraints on the choice of legal rules, such as the difficulty in enforcing such rules.)

   The distinction between descriptive and normative legal theory is also explained by John Austin in the book “The Province of Jurisprudence Determined”, where he divides jurisprudential enquiry in analytical (scientific analysis of legal structures and concepts. It 1 answers the question “what is the law?” = descriptive LT) and normative (what the law ought to be) jurisprudence.

3. Critical legal theory. It is a recent approach, and it focuses on the foundations of Jurisprudence. It emphasizes the real and hidden cultural basis on which every legal system is based. In the mind of critical legal theorists is uncertain and indefinite, since it is expressive of political and economic power.

   Example: Feminists scholars stated that the law was not equal, and it was not gender blind. There later was the realization that this inequality was also due to a racial component and that the people enacting laws were rich, male, white people who tried to dominate different races and gender. This is a hidden root of legal systems.

Classifications of jurisprudence

Jurisprudence can also be classified as:

• General jurisprudence: abstracted study of the legal rules (in more developed legal systems)
• Particular jurisprudence: specific analysis of the structures of a single legal system
• Historical jurisprudence: study of historical development and growth of legal systems
• Sociological jurisprudence: tries to clarify the link between law and other social phenomena
• Economic jurisprudence: investigates the effects on the creation and application of the law in various economic phenomena

Chapter 2: Natural law and morality

Natural law, according to Alessandro Passerin (natural lawyer), provides a name for the point of intersection between law and morals. Theories of natural law attempt to resolve the debate between what law is and what law ought to be. For this reason, we can say that all Natural law theories are from a Normative POV.

John Finnis, natural law theorist, states that it is impossible to give a simply descriptive legal theory as it is impossible to speak about law in neutral terms, because while giving a description we are inevitably biased by our cultural background.

Core presuppositions of a natural law theory

1. Its value judgments emanate from an absolute source which is to be found in natural order.
2. The source is: immutable, universal, objectively ascertainable by reason.
3. It overrules positive law (NL is higher and stronger than PL).

Cicero describes in “De Republica” natural