SOSC 1000 Lecture Notes - Lecture 2: Critical Legal Studies, Legal Positivism, Ecofeminism
23 Oct 2019
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Law Lecture Notes 2
LEARNING OBJECTIVES
- Distinguish different philosophies of law—schools of legal thought—and explain their
relevance.
- Explain why natural law relates to the rights that the founders of the US political-legal
system found important.
- Describe legal positivism and explain how it differs from natural law.
- Differentiate critical legal studies and ecofeminist legal perspectives from both natural
law and legal positivist perspectives.
- There are different schools (or philosophies) concerning what law is all about.
Philosophy of law is also called jurisprudence, and the two main schools are legal
positivism and natural law. Although there are others (see Section 1.2.3 "Other Schools
of Legal Thought"), these two are the most influential in how people think about the
law.
Legal Positivism: Law as Sovereign Command
- As legal philosopher John Austin concisely put it, “Law is the command of a sovereign.”
- Law is only law, in other words, if it comes from a recognized authority and can be
enforced by that authority, or sovereign—such as a king, a president, or a dictator—who
has power within a defined area or territory
- Positivism is a philosophical movement that claims that science provides the only
knowledge precise enough to be worthwhile
- But what are we to make of the social phenomena of laws?
- We could examine existing statutes—executive orders, regulations, or judicial
decisions—in a fairly precise way to find out what the law says. For example, we could
look at the posted speed limits on most US highways and conclude that the “correct” or
“right” speed is no more than fifty-five miles per hour
- Or we could look a little deeper and find out how the written law is usually applied.
- Doing so, we might conclude that sixty-one miles per hour is generally allowed by most
state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles
per hour in a fifty-five miles per hour zone
- Either approach is empirical, even if not rigorously scientific. The first approach,
examining in a precise way what the rule itself says, is sometimes known as the
“positivist” school of legal thought. The second approach—which relies on social context
and the actual behavior of the principal actors who enforce the law—is akin to the “legal
realist” school of thought
Positivism has its limits and its critics. New Testament readers may recall that King Herod,
fearing the birth of a Messiah, issued a decree that all male children below a certain age be
killed. Because it was the command of a sovereign, the decree was carried out (or, in legal
jargon, the decree was “executed”). Suppose a group seizes power in a particular place and
commands that women cannot attend school and can only be treated medically by women,
