Jurisprudence
As a theory in law, Jurisprudence involves varying philosophical perceptions about the purposes of law, the legal system and the institutions developed to regulate law. In an effort to understand the basic, fundamental reasoning for law and of legal systems, legal scholars have developed theoretical frameworks within the umbra of jurisprudence. For the purposes of this paper, jurisprudential philosophies will include natural law, legal positivism and constructivist theories of law.
Aristotle, credited as the "father" of natural law, suggested that there exists a natural law, a natural justice in law. Advocating a "golden mean," Aristotle describes the origin, the genesis of morality and a method of virtuous living to achieve happiness. Such hapiness is not generated or maintained by possession of material wealth or by pursuit of carnal pleasures. Instead, according to Aristotle, happiness is a noble pursuit that enables people to live their lives well, despite inevitable hardships and struggles in life. In this way, Aristotle believed that people should live their lives for the good of the group; toward a collective well-being that places the interests of the society above that of the individual. Such ethical living is the aim of all legal proclamations.
With two natural law theories governing differing components of laws, it is difficult to suggest that one precedes the other. However, while the natural law theory of morality, or what is right vs. what is wrong in a general sense, natural moral law is concerned with the coherence of individual behaviors (nmsu, 2010). However, legal positivism, on the other hand, is a theoretical understanding of law that negates the morality of humans; instead, legal positivism addresses the validity of law as constructed, as legislated and promulgated by sovereign nations; it does not involve morality or "good living" as a legally valid precept to jurisprudence.
Aristotle believed that the term "justice" has reference to two separate, yet distinct legal ideas; that of a general type of justice and that of a specific type of justice (Irwin, 2009). The general type of justice Aristotle refers to would include a justice that is morally obligatory to achieve a great good; a social justice. The specific justice Aristotle refers to would include the legally binding, not necessarily socially obligatory, actions by people.
While current jurisprudential understandings and theories focus on the foundations of a natural law, as well as the laws of nations, there seems to be a lacking consensus among legal scholars about the problems, issues and shortcomings of legal systems and those that are inherent to laws themselves as well as those problems and issues that exist from law as a socially mechanism in juxtaposition to the greater political and social contexts in which laws exist. While consensus is lacking among all legal scholars and theologians, there are four main philosphocal approaches, schools of legal philosophies that have emerged in the last century in an effort to address the shortcomings of laws and legal systems; these schools of legal philosophies include that of natural law, of legal positivism, of legal realism, and of critical legal studies.
Natural theory of law
A natural theory of law provides a legitimate function in society. Conversely, laws that contradict the purposes of law, laws that are inherently unjust are not laws at all; St. Augustine suggested that "lex injustia non-est lex;" that laws that are unjust are not binding and have no authority. Hence, any positive law that is in direct conflict with natural law is necessarily against the common good of man, and of justice. For example, laws that involve the right of landowners to possess and maintain slaves is not really a law at all; though it is supported and maintained via a sovereign nation with the full consequences of laws.
Legal positivism
According to legal positivism, law is dependent upon social norms created by legislative bodies (people) in accordance with socially desirable outcomes (IEP, 2010). Thus, the justification of law, according to legal positivism, is that it is enforceable by law enforcement because it is legislated and codified. Hence, there is a significant departure from prior constructions of legal theories involving divine rights or natural, morally obligatory orders.
Social constructions of law
With primary influences in ancient political philosophies, legal positivism essentially holds that law is a construction of social influences. Legal positivism theorizes that the connection between morality and legal proclamations are not important; rather, legal positivism is concerned only with what legislation, what...
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