Transcript Some problems with the command theory.

Legal Realism as an Alternative
to Natural Law Theory and Legal
Positivism
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American Legal Realism (Oliver Wendell Holmes,
Jr., Jerome Frank, Karl Llewellyn, Benjamin
Cardozo)
Positivist and Natural Law
Definitions of Law
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All Positive Laws
Legal Positivism
Natural Law
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Unjust
Positive Laws
All other Positive Law
Legal Realism
There really are no legal rules. Appeals
to rules are mere rationalizations of the
decisions of judges made on extra-legal
grounds.
 The discipline of law consists simply in
predicting what judges will do. Law is a
branch of sociology: studying patterns
of behavior.
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American Legal Realism
The behavior of public officials (mainly
judges) as they deal with matters before
the legal system.
 Law is a prediction about what judges
will do in certain circumstances.
 “Law in action” often more important
than “Law in the books.”
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Holmes and the Path of the Law
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Two negative theses:
Positive thesis:
Two negative theses
Law is not about morality. Think of law the
way the bad man does.
Logic is not the driving force in law.
Positive thesis:
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Law can be improved by being made
more rational, by explicitly linking legal
rules and practices to desired social
ends
Sociological Jurisprudence
Examines the law within its social
context.
 Law is a process of social ordering
reflecting society’s dominant interests
and values.
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Different Sociological
Approaches
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Law inevitably does (and should?)
follow dominant social values and
interests.
Implications of Sociological
Jurisprudence
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Although moral values influence positive
law, no way to say whether this is right
or wrong.