Law and Philosophy

Holmes' "bad man" theory offers insight into the difference between the law and morality. The bad man is not concerned with morality but he is as concerned about the law as any "good" man because in knowing the law, he can avoid getting into trouble. The bad man would lie, cheat, and/or steal if it weren't against the law because he cares not for the morals that underlie laws. In fact, lawmakers, policy makers, and other legal professionals can apply the bad man theory to their work: understanding the mentality of the bad man can help distinguish between legalism and morality. The government cannot enforce morality but it can enforce the rule of law and thus protect the rights of all citizens.

For Corwin, the higher law is the rule of law itself. In the United States, the rule of law has replaced divine mandate. Its citizens "worship" the Constitution in the same way they would have worshipped a God or a King. The United States constitution is the embodiment of higher law because it reflects the almost religious nature of respect for legal authority.

According to Levi, legal reasoning is a three-step process: first, recognizing similarity between a current and prior case; second, discovering and formally announcing the rule of law inherent in the prior case; and third, applying the rule of law to the second case. Whenever possible, establishing precedent has thus become a hallmark of legal reasoning for case law, statutory interpretation, and constitutional interpretation. In some cases, no prior case applies, or the judge does not deem the prior case relevant to the pending one. Levi's principles demonstrate that the law is flexible and dynamic, even if certain rules can apply in different times to different situations. Comparing cases can ease the process of statutory or constitutional interpretation. Referring to precedence enables continuity of law; the same rules can be applied to different cases.