Comprehensive Study Notes on Schools of Jurisprudence
The School of Legal Positivism
Legal positivism is characterized by its application-based, scientific approach to the law. It focuses on the specific context of who is making the rules, why they are being made, and how they apply to society.
The Concept of Blind Application: Positivists believe in the "blind" application of law. The school operates under the premise that there is a rule, which is applied equally to every person, leading to an outcome based strictly on that rule.
The Identity of Parties: In this view, the law should be blind to the identities of the litigants and the individuals applying the law.
Lady Justice Metaphor: The iconic statue of Lady Justice, wearing a blindfold and holding scales, epitomizes the positivist ideal. The blindfold signifies that factors like status, identity, or personal history should not influence the application of justice.
The School of Legal Realism
Legal Realists represent the antithesis of positivists. They argue that the idea of a purely positive or blind application of the law is a fallacy and does not reflect the reality of the legal system.
The Influence of Bias: Realists assert that Lady Justice is not blind. Instead, she is biased. Because laws are made and applied by human beings, they are subject to the inherent biases of judges and jurors.
Predictive Outcomes: According to this school, the outcome of a case is better predicted by understanding the biases of the judge and jury rather than by analyzing the laws themselves. Realists claim that if the law were applied blindly, as positivists suggest, the same set of facts presented to ten different juries or ten different judges would yield the same outcome every time. However, in practice, the same facts often lead to ten different outcomes.
The Critique of Positivism: Realists view the positivist approach as "naive" or a "pie in the sky" abstraction that ignores human nature.
Case Study: Child Custody and the "Children of Tender Years" Doctrine
Traditionally in the US legal system, there was a systemic bias regarding "children of tender years," specifically those under the age of seven.
The Historical Bias: The prevailing bias held that young children always belonged with their mothers. This was often fueled by the personal backgrounds of judges—older men who had been raised by mothers or nannies and believed children were better off away from their fathers.
Persistence of Bias: This bias persisted even when mothers were unfit. Lawyers would often tell fathers that, regardless of the mother's character (even in hyperbolic scenarios like a mother being an "axe murderer"), a father would not receive custody of a five-year-old.
Legislative Change vs. Judicial Application: In 1982, the Florida legislature changed the law to favor shared parental custody, with residency going to the "most fit" parent. Despite this, for approximately two years, fathers still did not receive custody of young children. Legal realists cite this as proof that judges do not blindly apply new laws; they apply their innate, long-standing biases until the culture of the bench eventually shifts.
The Economic School of Jurisprudence
The Economic school of thought suggests that the law is a reflection of efficient choices made within a free market.
Maximizing Gain and Minimizing Pain: This theory posits that people behave in ways that maximize their positive outcomes and minimize negative consequences. Individuals will comply with the law when it is to their benefit and may choose non-compliance when the law acts against their interests.
Rational Behavior: The school assumes a rational legal system where actors make rational decisions to optimize their situation.
The Critique of Rationality: A significant challenge to this school is the observation that humans frequently behave irrationally, often driven by emotion rather than economic or logical benefit.
Case Study: 1988 Divorce Litigation Over Rare Cats
An example of irrational behavior occurred during a high-asset divorce in Miami Beach in the late 1980s.
The Dispute: The couple was independently wealthy and did not argue over their multi-million dollar waterfront home or their luxury vehicles (e.g., Bentley). Instead, they fought over the custody of rare breeding cats.
The Cost: In 1988, the value of the kittens was between and each. Despite this, the legal fees for the dispute exceeded ( per side).
Non-Rational Outcome: The parties were not acting to maximize financial gain; they were acting on the emotional desire to "win" and prevent the other from having the cats. This demonstrates that emotional irrationality can override the economic principles of gain and pain.
The Natural Law School
Natural law posits that laws are a direct reflection of human morals and a "true nature" derived from a creator.
Inherent Morality: Proponents believe that humans are created in the image of their creator and possess an innate ability to distinguish right from wrong by studying human nature.
Legal Foundations: Under this school, legal codes should be crafted to reflect what is inherently right and prohibit what is inherently wrong. For example, the prohibition against killing is seen as a reflection of man's fundamental nature.
Influence on the United States: The US Founding Fathers were adherents of the Natural Law School. This is evident in documents like the Preamble to the Constitution. * Preamble Analysis: "We the People… secure the Blessings of Liberty to ourselves and our Posterity." The term "Blessings" has a religious connotation, implying that liberty is a gift from God. The founders believed they were creating a government that reflected the natural, God-given nature of humanity.
The Feminist School of Jurisprudence
The Feminist school argues that legal systems are not objective but are instead reflections of male values and desires because men have historically held the power to create the laws.
Critique of Traditional Schools: Feminists argue that other schools of jurisprudence ignore the fact that women were historically excluded from the legal process. For example, the US Constitution was an all-male document.
Gender Bias: This school asserts that law is not gender-blind. It reflects what men value, which may differ significantly from what women value.
Objective: The goal is to move toward a system that reflects female values and achieves true gender neutrality by increasing the participation of women in the legal system.
The Sociological School of Jurisprudence
The Sociological school views legal systems as a reflection of the power dynamics between different groups in society.
Power-Based Systems: Laws are made by whichever group holds the "power broker" position at a given time. These laws reflect the interests of the powerful rather than the society as a whole.
Distinction from Minority/Majority: Power is not always determined by numbers. A smaller group can control the military or legislature and thus dictate the law.
Example (Rwanda): In Rwanda, tribal conflict led to one group slaughtering another. Even if the group being slaughtered was larger in terms of population, they were out of power and did not control the military apparatus.
The Historical School of Jurisprudence
The Historical school posits that legal systems are the culmination of a society's historical events and developments.
Evolution through Events: Laws are formulated based on the litany of lawsuits and legal cases that follow major historical turning points.
Example (US Civil War): The American legal structure today is heavily influenced by the Civil War, the post-war amendments to the Constitution, and the subsequent Civil Rights Movement. Proponents argue that to understand a legal system, one must study the entire history of the society from its inception to the present.
Synthesis and Comparison of Schools
While these schools are often presented as distinct, they frequently overlap in the actual administration of justice.
Sociological vs. Legal Realist: Legal Realism focuses on the bias of individuals (judges/juries) applying the law, whereas the Sociological school focuses on the broader power groups and stakeholders making the law.
Legal Clarity and Economic Choice: When laws are clearly written and interpreted consistently, it allows for a positivist application and enables individuals to act rationally (Economic School). However, when laws are "muddy" or poorly drafted, it opens the door for individual bias (Legal Realism).
Poor Legislative Drafting (Case Study): A recent effort to reform Florida tort law regarding medical bills illustrated how poor drafting maintains bias. The goal was to require plaintiffs with health insurance to use it, preventing doctors from billing inflated amounts (e.g., billing for a procedure) to influence juries. However, an ambiguous clause was added: "unless you have evidence, reasonable evidence of other charges related to the bill." Because "reasonable evidence" is vague, doctors continue to present the inflated bills, effectively nullifying the intent of the statute and leaving the outcome to the "luck of the draw" regarding which judge interprets the ambiguity.
Questions & Discussion
Q: Is the Feminist school just a subset of the Sociological school?A: No, it is considered its own school. While women can be a subset of society or a power group (Sociological), the Feminist school argues specifically that the entire historical foundation of the legal system was built on male values, and needs a fundamental shift to reflect what women value.
Q: Which school explains our system the best?A: Students and practitioners differ. Some argue for the Historical school because every major law seems to stem from a historical event. Others argue for the Sociological school based on current political divisions ("red and blue" power groups). Many believe it is a combination, though Legal Realism is often cited as a highly accurate descriptor of how the system functions on the ground due to the prevalence of bias.